http://www.austlii.edu.au/au/cases/act/ACTSC/2013/14.html

CRIMINAL LAW – jurisdiction, practice and procedure – ex parte application to publish evidence of a witness examined by the Australian Crime Commission – application to publish evidence to the accused – where examinee before the Commission not the accused – Australian Crime Commission Act 2002 (Cth) s 25A – factors to consider – interests of justice – safety and reputation of examinee – nature of offences – procedural uncertainty –examinee to be given an opportunity to be heard – application adjourned.

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/1.html

APPLICATION – seeking leave to appeal out of time against convictions imposed in the Magistrates Court – no acceptable reason for delay – application refused

APPLICATION – seeking leave to appeal out of time against orders from a single judge of the Supreme Court – no demonstrable error argued – application refused

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/204.html

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/62.html

CRIMINAL LAW – conviction appeals – joint trials of Appellants – all Appellants convicted of two murders (Lawford Street shooting) – firearm attack on suburban house from street – two occupants (Ziad Razzak and Mervat Nemra) killed – joint criminal enterprise – alleged to be part of feud between two groups – one Appellant (Darwiche) convicted at same trial of earlier offences of maliciously discharge loaded firearm with intent to cause grievous bodily harm (to Bilal Razzak) and shoot at a person (Farouk Razzak) with intent to murder (Yanderra Street shooting) – these offences also alleged to be part of feud – jury unable to agree upon verdict on further count against Darwiche of murder (of Ali Abdul Razzak) APPEAL – grounds by all Appellants claiming prejudice and a miscarriage of justice flowing from joint trial – no error in decision to hold joint trial of all Appellants for Lawford Street shootings – no error in decision to try Darwiche in same joint trial for earlier alleged shooting offences said to be part of feud – appropriate directions given to jury concerning use of evidence against each Appellant – jury reached verdicts impartially on evidence and in accordance with trial judge’s directions – no miscarriage of justice resulting from joint trial APPEAL – grounds challenging direction that evidence of one indemnified witness could support evidence of another indemnified witness – no error in direction APPEAL – claim by Darwiche that it was abuse of process for prosecution case to be based upon evidence of indemnified witnesses who received benefits – no application made at trial for stay on this basis – no proper basis for stay in any event – assessment of credibility and reliability of witnesses part of jury’s function – all evidence concerning indemnities and benefits placed before the jury – no miscarriage of justice APPEAL – grounds contending error in various respects during trial – no error demonstrated – no miscarriage of justice APPEAL – applications by two Appellants (Darwiche and El-Zeyat) for leave to add further grounds of appeal after hearing of appeal but before judgment delivered – suggested fresh evidence – approach to determination of application for leave – assessment of suggested fresh evidence – whether fresh and credible – whether likely in the context of the trial to cause jury to entertain a reasonable doubt about guilt of Darwiche or El-Zeyat – no miscarriage of justice – leave to add grounds refused

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/46.html

CRIMINAL LAW – trial by judge alone –threaten to cause a detriment to a person with the intention that the other person would not attend as a witness in a legal proceeding – finding of guilt – no matter of principle.

Evidence Act 1995 (Cth), ss 60, 65, 66

http://www.austlii.edu.au/au/cases/act/ACTCA/2011/1.html

CRIMINAL LAW – Attorney-General’s reference – principles – reference limited to points of law arising in relation to the trial – question referred must be phrased with sufficient precision or appropriately for the Court to hear and decide – s 37S Supreme Court Act 1933 (ACT)

CRIMINAL LAW – offences of sexual intercourse without consent and statutory indecency – mens rea expressed as knowledge or recklessness – whether one or two offences depending on accused’s knowledge or recklessness – primary judge required Crown to elect between knowledge and recklessness on charges on an indictment for offences against ss 54 and 60 of the Crimes Act 1900 (ACT) – whether charge framed in terms of knowledge and recklessness duplicitous

Held: only one offence created – Crown need not elect between knowledge and recklessness

Evidence Act 1995 (Cth) s 66(2)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/181.html

CRIMINAL LAW: Crown appeal against interlocutory order rejecting evidence – Principles applicable – rejection of complaint evidence in child sexual assault case – error in construction of s 66 of Evidence Act – meaning of phrase “fresh in the memory” – history of “recent complaint” doctrine – enactment of s 66(2) of Evidence Act – Reasons underlying amendment – Proper approach to construction of s 66(2) and (2A) Evidence Act – Power of Court of Criminal Appeal where error demonstrated.

[2007] NSWCCA 329

CRIMINAL LAW – evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement

CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence

CRIMINAL LAW – sentencing – date of commencement of sentence – pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

Evidence Act 1995 ss 66, 102, 108(3)(b), 192

[This decision seems to have been removed. It can still be located at LexisNexis]

CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered

EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied

EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt

Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165

[2009] ACTSC 154

CRIMINAL LAW – trial by Judge alone – act of indecency upon person under age of 16 years.
CRIMINAL LAW – evidence – hearsay evidence – admissibility under Evidence Act 1995 (Cth) – out of court representation to police officer – representation as to kind of evidence witness could give in trial – content and purpose of representation – evidence inadmissible – Evidence Act 1995 (Cth), s 66(3).

Evidence Act 1995 (Cth), s 60, s 66

[2008] NSWCCA 317

Criminal Law – Appeal and New Trial – rule 4 – objection not taken to evidence – whether judge should have rejected evidence relying upon s 137 of Evidence Act – whether evidence prejudicial – Summing Up – whether judge failed to warn jury against tendency reasoning – Evidence – scope of s 137, whether requires judge to reject evidence where objection not taken – Sentencing – Malicious wounding and child abduction – whether sentences manifestly excessive.

Evidence Act 1995 – ss 41, 66, 116, 130, 137

[2005] NSWCCA 306

Appeal against conviction

Whether the trial judge erred in admitting evidence of the complainant’s distressed condition; uncharged acts not complained of; pre-text telephone conversations and email messages

Incorrect directions to jury

Miscarriage of justice

[1999] NSWCCA 122

[1999] NSWCCA 47

CRIMINAL LAW – Evidence

Sexual assault

Complaint

Not recent

CRIMINAL LAW – Summing-up

Sexual assault

Competing versions

Who to believe

EVIDENCE – Sexual assault

Complaint

Not recent

Evidence Act 1995, ss 165, 59, 66, 108(3)

[2002] NSWCCA 328

Criminal Law – sexual offences – delay in complaint – whether warnings and directions adequate – verdicts unsafe.

Evidence Act 1995 – ss 60, 66(2), 102, 108(3)

[2002] NSWCCA 512

Criminal Law

appeal against conviction

principles relating to the exclusion of or limiting the use of evidence for “unfair prejudice” pursuant to ss 136 & 137 of the Evidence Act 1995

whether trial judge was bound to do so of his own motion

otherwise, no question of principle

Evidence Act 1995, s66, s136, s137, s165

[2000] NSWCCA 192

Criminal Law and Procedure

Witness to Act of Identification from Photographs

Identifier Declining to Affirm Previous Act

Evidence by Observer

Hearsay at Common Law and by Statutory Definition

Evidence Act

Possible Statutory Exception

Quality of Identifying or Similarity Testimony

Unfavourable Witnesses

Separate Trials of Co-Accused

Photographic Selection for Identifying Purposes

Fairness of Selection

Discretion to Order New Trial

[2001] NSWCCA 260

Criminal Law – Summing up – warning to jury under s 165 of the Evidence Act – evidence of a ‘kind’ that may be unreliable

Evidence Act 1995 – ss 38, 66, 108(3), 116(1) 164, 165

[1999] NSWCCA 247

Complaint of sexual offence – prior consistent statement – leave for admission on credibility only – suggestion of fabrication not made by mere denial – such suggestion should be expressly put – criteria for leave – criteria for exercise of discretion – criteria for waiver of the necessity for leave.

[2006] NSWCCA 75

CRIMINAL LAW – Appeal – Against Conviction – s86(2)(b) of the Crimes Act 1900 – Detaining victim with intent to obtain advantage – Whether verdict unreasonable – Whether a circumstantial case on intent requires particulars of sexual intercourse to be separately supported by separate evidence

CRIMINAL LAW – Practice and Procedure – Whether complaint evidence properly admitted – Purpose for which evidence from a victim of attempted sexual assault as to what s/he believed was happening is admissible

Evidence Act 1995: s136, s76, s78, s60, s66

[2006] NSWCCA 37

EVIDENCE – sexual assault – complaint evidence – delay in making – justifiability of – where complainant’s mother and offender in business relationship – where complainant and mother boarding in offender’s home

EVIDENCE – sexual assault – complaint evidence – delay in making – complainant told mother 66 days after event – whether “fresh in the memory” under s 66 Evidence Act 1995

EVIDENCE – sexual assault – complaint evidence – where “vague” or lacking clear element of complaint – probative value not outweighed by prejudice where evidence has corroborative value

DIRECTIONS TO JURY – introductory directions as to respective roles of the Crown, defence and jury – whether stressed too significant an association between the Crown and the community – whether stressed too significant an association between jury and the community – whether amounted to saying that the Crown and jury “on the same side” – whether distinguished the Crown’s approach to the evidence as scrupulously fair as against the defence (D)

[2006] NSWCCA 60

appeal against conviction

maliciously inflicting grievous bodily harm

assault occasioning actual bodily harm

admission of evidence over objection

statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995

maker of statement unavailable to give evidence

objection taken on grounds of late notice and discretionary factors

no separate objection to content of evidence

whole of statement admitted

whether trial judge erred in admitting statement

- whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement

directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible

hearsay provisions of the Evidence Act

exceptions to the hearsay rule

identification of previous representation

identification of what fact was intended to be asserted by previous representation

relevant evidence

evidence of out of court representation by one person cannot be given by out of court representation of another person

evidence of previous representations inadmissible

effect of admission of inadmissible evidence of previous representation

Criminal Appeal Rules, rule 4

whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal

Criminal Procedure Act s68, s289

appellant waived right to committal hearing

proviso to s6 of the Criminal Appeal Act

admission of the inadmissible evidence would and should have had no significance in verdict

evidence properly admitted proves beyond reasonable doubt guilt of the offence

Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192

[2008] NSWCCA 38

CRIMINAL LAW
appeal against conviction
four occasions of sexual conduct in relation to a child
judge’s directions to jury
whether summing up lacked balance and objectivity
whether trial judge unfairly bolstered child complainant’s evidence and Crown case
CRIMINAL LAW
evidence
whether trial judge erred in admitting evidence of complaint
“fresh in the memory” requirement
re-establishing creditability
whether trial judge erred in his direction on the Markuleski principle
CRIMINAL LAW
application for leave to appeal against sentence
whether the applicant being held in custody with more onerous conditions constitutes special circumstances
rehabilitation of sexual offenders
whether sentence manifestly excessive

[1973] HCA 30

[1998] HCA 61

Criminal Law – Evidence – Hearsay – Exception to Hearsay Rule – Complaint of sexual assault – Prior complaint evidence – Whether complaint made when facts “fresh in the memory” of complainant.

Criminal Law – Evidence – Credibility – Exception to Credibility Rule – Whether evidence fabricated – Discretion to admit prior consistent statement – Factors affecting discretion.

Words and Phrases – “fresh in the memory”.

Evidence Act 1995 (NSW), ss 66, 108, 192.

[2009] TASSC 106

Criminal Law – Appeal and new trial – Particular grounds of appeal – Inconsistent verdicts – Sexual crimes – Conviction on first count, acquittal on all others – Stronger corroborative evidence on first count.

MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348; MFA v R [2002] HCA 53; (2002) 213 CLR 606, applied.
Aust Dig Criminal Law [3478]

[2006] TASSC 80

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Erroneous exclusion of evidence – Substantial miscarriage of justice.

Justices Act 1959 (Tas), s110(2)(ab).

Gregory v R [1983] HCA 24; (1983) 151 CLR 566; Nudd v R [2006] HCA 9, referred to.

Aust Dig Magistrates [272]

[2004] TASSC 95

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Unsworn statements and comment on failure to give sworn evidence – Comment – By judge – Other cases – Absence of direction about accused not having given evidence – Videotapes and transcripts of comprehensive police interviews in evidence – Whether miscarriage of justice.

Azzopardi v R [2001] HCA 25; (2001) 205 CLR 50; R v OGD (1997) 45 NSWLR 744; Richards [2002] NSWCCA 38; (2002) 128 A Crim R 204, considered.

Aust Dig Criminal Law [554]

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Impeachment of credit and admissibility of evidence as to credit – Prior inconsistent statements – Evidence in contradiction – Leave to cross-examine.

Evidence Act 2001  (Tas), ss38(1)(c), 66, 192.

Esposito (1998) 105 A Crim R 27, approved.

Aust Dig Criminal Law [571]

[1999] NSWCCA 15

CRIMINAL LAW – appeals – appeal against conviction – leave to appeal against sentence – sufficiency of directions concerning child complainant’s evidence of sexual assault – sufficiency of directions concerning appellant’s election not to give evidence – unsafe and unsatisfactory verdict.

Evidence Act 1995  (NSW) ss 165, 66, 20

[2008] NSWCCA 304

Criminal law
length of jury deliberations
unsafe and unreasonable verdicts
circumstantial evidence
inconsistent verdicts
Evidence Act (leave to cross-examine under s38)

Evidence Act, 1995 , s38, s60, s66, s135, s137, s192

[2003] NSWCCA 12

CRIMINAL LAW – evidence – claim of right – whether judge erred in striking out as irrelevant part of Crown witness’ testimony favourable to defendant’s claim – whether judge erred in not allowing defendant to cross-examine on evidence that was struck out – EVIDENCE – hearsay – whether evidence admissible at common law as a prior consistent statement – whether admissible under s 65 or s 66 of the  Evidence Act 1995  – where evidence admissible under s 66 of the Evidence Act – where evidence not significant – whether exclusion gave rise to a miscarriage of justice – EVIDENCE ACT – whether trial judge erred in making appellant aware in the presence of a jury the effects of s 128 of the Act – whether trial judge contravened s 132 of the Act – CRIMINAL TRIAL – forensic tactics – where Crown used s 38 of the Evidence Act as a forensic device – whether unfair or improper advantage – whether abuse of section – whether judge’s failure to refer to s 192 of the Evidence Act an error of law – where Crown case is strong – whether cumulative effect of errors result in a lost chance of defendant being acquitted – Criminal Appeal Act 1912 s 6(1) – appeal dismissed.

Evidence Act 1995 , ss 38, 65, 66, 128, 132, 192(2)

[1999] NSWCCA 57

Hearsay

statement by co-offender

whether made pursuant to common purpose

Evidence Act 1995 , ss 65, 66, 87

prior consistent statement

Credibility rule 15 108

[1999] NSWCCA 21

CRIMINAL LAW – act of indecency towards complainant

meaning of s 61E(2A) Crimes Act 1900 (now s 61N)

CRIMINAL LAW – sexual assault

long delay in complaint

admissibility

Evidence Act 1995 , ss 66(1) and (2), 59(1), 102, 108(1) and (3)(b)

[2000] FCA 368

EVIDENCE – opinion rule – whether evidence of an accounting expert wholly or substantially based on the knowledge of that expert

Evidence Act 1995  (Cth), ss 76 & 79

[1999] NSWCCA 377

CRIMINAL LAW – murder – appeal against conviction – circumstantial evidence case – whether certain specified intermediate facts essential – trial judge’s directions erroneous but favourable to accused – open to jury to convict on evidence, but not in accordance with trial judge’s directions – irregularity such as to constitute miscarriage of justice – appeal allowed – new trial or judgment of acquittal

CRIMINAL LAW – murder – indictment – single count – crown case put on alternative basis

EVIDENCE – murder trial – hearsay – evidence of relationship between accused and deceased.

Evidence Act, ss 55, 56, 59, 65, 66, 69, 72, 108, 135, 136, 137, 165;