Category Archives: s. 066

Clay v The Queen [2014] VSCA 269 (30 October 2014)

CRIMINAL LAW – Conviction – Appeal – Historical sexual offending against three child complainants – Whether substantial miscarriage of justice because irrelevant evidence of bedwetting and self-mutilation admitted – No objection taken – No forensic advantage in placing such prejudicial evidence before jury – Whether substantial miscarriage of justice because of admission of complaints made by alleged victims – Whether complaints concerned events ‘fresh in the memory of the person’ – 20 year delay in case of two complainants – Hearsay rule applicable – s 66 Evidence Act 2008 – Alleged admissions on part of appellant –Whether probative value outweighed by risk of unfair prejudice – Whether trial judge gave adequate directions regarding use of alleged admissions – Evidence should not have been admitted – Whether failure of trial counsel to challenge admissibility of prosecution evidence and otherwise conduct trial in competent manner gave rise to substantial miscarriage of justice – Appeal allowed – Convictions quashed – New trial ordered.

Cook v The Queen [2014] VSCA 220 (11 September 2014)

CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of committing an indecent act with a child under 16 and acquitted of seven other sexual offences –Credibility of complainant’s evidence – Whether conviction is unsafe and unsatisfactory – Appeal allowed – Conviction quashed and judgment and verdict of acquittal entered.

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen [2001] FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) [2005] NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31R; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen [2014] NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.

CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid [1999] NSWCCA 258; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen [2008] NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [[1976] VR 577, followed – Waiver – R v Clarke [2005] VSCA 294; (2005) 13 VR 75; R v McCosker [2010] QCA 52; [2011] 2 Qd R 138, followed – Whether trial judge under duty to intervene.

CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen [2011] VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.

EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.

CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

McLaren v Chief of Navy [2013] ADFDAT 5 (29 November 2013)

DEFENCE FORCE – appeal from Restricted Court Martial against convictions for committing an act of indecency – circumstantial evidence – whether Judge Advocate erred in failing to give proper direction – admissibility of evidence based on inference drawn by witness from observed facts – whether substantial miscarriage of justice – meaning of “indecency” – appeal allowed – conviction quashed – retrial ordered

Naim v Medical Board of Australia [2013] VSCA 205 (29 August 2013)

ADMINISTRATIVE LAW – Victorian Civil & Administrative Tribunal (VCAT) – Appeal – Leave to appeal – Question of law – Whether findings of fact – Victorian Civil and Administrative Tribunal Act 1998, s 148(1)(a).

MEDICAL PRACTITIONERS – Complaint – Medical Board – Matters referred to VCAT under Health Practitioner Regulation National Law (Victoria) Act 2009 of professional misconduct and unprofessional conduct – Procedural fairness – Whether findings open.

Russell v The Queen [2013] VSCA 155 (21 June 2013)

CRIMINAL LAW – Application for leave to appeal against conviction – One charge of buggery with a child under 14 years and five charges of buggery – Offences committed over 40 years ago – Whether trial judge erred in directing the jury they could use hearsay evidence adverse to the applicant adduced in cross examination of the informant – Whether trial miscarried because of failure correctly to direct the jury about the use to be made of a false Crown theory of defence tactics never adopted by the applicant – Whether verdicts unsafe – Leave to appeal granted and appeal allowed.

R v Munro [2013] ACTSC 14 (14 January 2013)

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.

I S J v The Queen [2012] VSCA 321 (18 December 2012)

CRIMINAL LAW – Appeal against conviction – Rape – Incest – Whether the verdict on the charge of rape was unsafe and unsatisfactory – No direction required as to whether the accused believed that the complainant was consenting – Whether the complainant gave free agreement – Temporal gap between the complainant’s objection to penetration and the time of penetration left unexplored – Prosecutor failed to ask complainant whether penetration was without consent – Trial judge’s directions on the evidence as to the question of consent inadequate – Sections 37 and 37AAA of the Sentencing Act 1991 – Appeal allowed on the charge of rape – Appellant convicted of alternative charge of incest – Appeal otherwise dismissed.

CRIMINAL LAW – Evidence – Rule against hearsay – Complaint evidence – Prior representations of complaint evidence led as an exception to the hearsay rule – Substantial time delay between the asserted facts and the dates on which the representations were made – Trial judge limited the use of the evidence under s 136 to buttressing credibility only – Need to comply with statutory pre-conditions under exception to credibility rule – Whether the asserted facts were ‘fresh in the memory’ of the complainant – Sections 66, 108, 136, 137 and 192 of the Evidence Act 2008 – XY v The Queen [2010] NSWCCA 181 referred to – Papakosmas v The Queen (1999) 196 CLR 29 considered – Appeal dismissed.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Appellant re-sentenced because of the successful appeal against sentence – Sentence not manifestly excessive.

CRIMINAL LAW – Appeal against sentence – Child pornography – Manifest excess – Parity – Sentencing discretion re-opened – Appellant re-sentenced.

Derbas v R [2012] NSWCCA 14 (21 February 2012)

CRIMINAL LAW – leave to appeal against interlocutory order – public interest immunity – application for production of a document disclosing confidential police informer – balancing exercise – common law applied – whether disclosure of identity of informer would assist accused in defence – relevance of potential consequences to informer if identity disclosed – claim to immunity from production upheld

R v AB [2011] ACTSC 204 (16 December 2011)

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)

R v Fairbairn [2011] ACTSC 78 (19 May 2011)

CRIMINAL LAW – trial by judge alone – charge of trafficking in a controlled drug other than cannabis – accused is guilty.
EVIDENCE – admissibility and relevancy – hearsay – whether records of telephone calls inadmissible as hearsay – admissible as admissions of accused – other party’s conversation not admitted for truth of representation.
EVIDENCE – admissibility and relevancy – tendency evidence – no notice given in time – whether prosecution should be permitted to rely on evidence – substance given well before trial – evidence admitted.
EVIDENCE – admissibility and relevancy – tendency evidence – whether of significant probative value – whether significant probative value outweighs unfair prejudice – evidence admissible.
CRIMINAL LAW – evidence – res gestae – whether doctrine survives enactment of Evidence Act 1995 (Cth).

Evidence Act 1995 (Cth), ss 59, 66, 67, 97, 100, 101, 137, Pt 3.4

Miller v The Queen [2011] VSCA 143 (16 May 2011)

Criminal law – Conviction – Whether submissions of counsel for Crown or judge’s comment infringed s 20(3), Evidence Act 2008 – Motive to lie – Whether Palmer direction (Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1) necessary – Whether evidence of representation under s 66(2)(b), Evidence Act 2008 admissible – Application for leave to appeal refused.

Criminal law – Sentence – Sexual offences committed on four occasions when applicant aged a little over 14 and aged 17 – Circumstances of offending evidenced applicant’s immaturity – Long delay between last offending and complaint – Sentence imposed some 16 years following offences – No subsequent offences – Strong evidence of rehabilitation – Appeal upheld – Appellant re-sentenced.

R v Boland [2007] VSCA 242; (2007) 17 VR 300 applied.

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (8 April 2011)

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

Aouad and El-Zeyat v R [2011] NSWCCA 61 (8 April 2011)

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

WSJ v The Queen [2010] VSCA 339 (15 December 2010)

CRIMINAL LAW – Conviction – Three counts of committing an indecent act with a child under 16 years – Complainant subject to persistent sexual abuse by applicant’s brother – Identifying witness was familiar with the applicant – Whether need for full direction as to unreliability of identification evidence – Whether identification warning undermined by trial judge’s comments – Delay in making complaint – Counsel wrongly prohibited from cross-examining or addressing the jury as to delay – s 61 Crimes Act 1958 (Vic) – Prior representations by complainant as to the alleged conduct of the applicant – Representations inconsistent with complainant’s account – Error to admit – s 41D Evidence Act 1958 (Vic) – s 66 Uniform Evidence Act considered – Relevance of lapse of time between the alleged offending and the making of the representation – Representation admitted only as going to the complainant’s credibility and not as proof of the truth of the facts asserted – Failure to warn jury that not original evidence – Misdirection – Appeal allowed – Retrial ordered

Director of Public Prosecutions v Walker [2011] ACTCA 1 (3 February 2011)

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)

Regina v XY [2010] NSWCCA 181 (6 September 2010)

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.

Bellemore v Tasmania [2006] TASSC 111 (21 December 2006)

[2006] TASSC 111

CONSTITUTIONAL LAW — The non-judicial organs of Government — The legislature — Legislation and legislative powers — Legislative powers — Power to act contrary to separation of powers doctrine — Constitution, Ch III — State Act creating crime — Retrospective effect — Whether jurisdiction conferred upon State Supreme Court incompatible with Ch III.
CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Generally — Unreliability — Whether a discretion to reject unreliable evidence.
CRIMINAL LAW — Evidence — Complaints — Admissibility of details and fact of complaint — Sexual offences — Evidence of how complainant came to make complaint many years after — Whether excluded by hearsay rule — Whether fresh in the witness’s memory — Whether inadmissible under credibility rule.
CRIMINAL LAW — Evidence — Evidentiary matters relating to witnesses and accused persons — Character and previous convictions — Evidence of good character — Desirability of direction as to.
CRIMINAL LAW — Evidence — Miscellaneous matters — Other cases — Sexual crimes against children — Evidence by psychiatrist of tendency of victims not to complain — Evidence of tendency of victims to suffer psychological damage — Evidence not specific to the complainant — Whether relevant or admissible.
CRIMINAL LAW — Jurisdiction, practice and procedure — Course of evidence, statements and addresses — Addresses — Contents — Duty of counsel for prosecution — Whether comments excessive or prejudicial — Expression of counsel’s own views of evidence — Comments minimising effect of Longman warning.
EVIDENCE — Facts excluded from proof — On grounds of privilege — Professional confidence — Communication with counsellor — Whether evidence of treatment excluded.

(TAS) Evidence Act 2001 ss 59, 66 and 102

(TAS) Evidence Act 2001 s 79A

(TAS) Evidence Act 2001 s 127B

Abdul-Kader, Mostafa v R [2007] NSWCCA 329 (29 November 2007)

[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

R v Maan [2009] ACTSC 160 (7 December 2009)

[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

R v Sharma [2009] ACTSC 154 (1 December 2009)

[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

FDP v R [2008] NSWCCA 317 (18 December 2008)

[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

R v Barbaro; R v Rovere [2000] NSWCCA 192 (26 May 2000)

[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

R v Rymer [2005] NSWCCA 310 (6 September 2005)

[2005] NSWCCA 310

















s59 Evidence Act 1995

R v Michael Whyte [2006] NSWCCA 75 (24 March 2006)

[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

Skipworth v R [2006] NSWCCA 37 (1 March 2006)

[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)

Vickers v R [2006] NSWCCA 60 (31 March 2006)

[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

Langbein v R [2008] NSWCCA 38 (28 February 2008)

[2008] NSWCCA 38

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
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
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

Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 (30 September 1998)

[1998] HCA 61

    A Note to Section 66(2A) states “Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.”

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.

Y v Tasmania [2009] TASSC 106 (8 December 2009)

[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]

Saunders v R [2004] TASSC 95 (3 September 2004)

[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]

R v Davis [1999] NSWCCA 15 (25 February 1999)

[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