Category Archives: s. 165B

Hermanus (a pseudonym) v The Queen [2015] VSCA 2 (28 January 2015)

CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred nearly 40 years ago – Child complainant – Original complaint to police lost – Whether irremediable prejudice – Whether forensic disadvantage warning sufficient – No error in refusal of stay – Leave to appeal refused.

Jarrett v R [2014] NSWCCA 140 (28 July 2014)

CRIMINAL LAW – appeal – conviction – directions to jury – admissions made of offences with unspecified victim when accused medicated – directions sought and given went no further than suggesting unreliability – whether direction that the accused may have been referring to someone other than the complainant required – prejudicial effect of proposed direction

CRIMINAL LAW – access to video of complainant’s evidence in chief in jury room – general warning to jury about reliance on the video – whether further warning required when viewing video in jury room – procedure when jury seek access to video – video requested along with other evidence – Criminal Procedure Act 1986 (NSW), s 306X

CRIMINAL LAW – appeal – sentence – whether trial judge failed to consider the mental health of the accused

EVIDENCE – delay in making complaint about sexual offence – mandatory warning that delay does not by itself undermine a complainant’s credibility – whether a warning was required that the complaint was not made at the earliest reasonable opportunity – whether there was “sufficient evidence” to require a warning – Criminal Procedure Act 1986 (NSW), s 294

EVIDENCE – delay in prosecution – whether accused suffered a significant forensic disadvantage – whether “good reasons” not to give warning – Evidence Act 1995 (NSW), s 165B

W v R [2014] NSWCCA 110 (18 July 2014)

CRIMINAL – Subramaniam direction -whether obligation to give direction – Mental Health (Forensic Provisions) Act, s 21

CRIMINAL – Longman warning – judge alone trial – whether obligation to give warning – Evidence Act , s 165B

CRIMINAL – Murray direction – whether direction given was followed – judge alone trial – judgment must adequately expose reasoning process – justice to be seen to be done – mere incantation of warning and directions insufficient

CRIMINAL – conviction – whether verdict unsafe and unsatisfactory – whether open to judge to be satisfied beyond reasonable doubt as to the appellant’s guilt on the evidence – advantage of hearing and seeing evidence at trial

CRIMINAL – sentencing – failure to take into account mental state at time of offences -expressly eschewed by counsel at trial – lack of evidence as to mental state

CRIMINAL – sentencing – whether manifestly excessive

The Queen v F J L [2014] VSCA 57 (28 March 2014)

CRIMINAL LAW – Director’s application – Leave to appeal against permanent stay of 12 counts of indecent assault on children under 16 years of age – Most recent alleged offending occurred 32 years prior to trial – Whether a case of ‘simple’ delay giving rise to mere presumptive prejudice – Whether possible to address prejudice to accused through procedural steps short of a permanent stay – Gross delay giving rise to specific forensic disadvantage – Possible to address some specific disadvantages through procedural steps – Leave to appeal granted – Appeal allowed in part.

GROUNDSTROEM Christoffer Andreas v R [2013] NSWCCA 237 (31 October 2013)

CRIMINAL LAW – appeal against conviction – sexual assault – historical sexual assault – husband rapes wife – issue of consent – delay in complaint – whether significant forensic disadvantage – lack of medical records of the complainant in documenting the complaint – admissions of husband to counsellor and the police – effect of delay rather than length important – directions – counsel must apply with details of forensic disadvantage alleged

Matthews v R [2013] NSWCCA 187 (14 August 2013)

CRIMINAL LAW – conviction appeal – import a commercial quantity of pseudoephedrine – whether verdict unreasonable and unsupported by the evidence – whether miscarriage of justice occurred – whether conduct of trial by counsel improper or negligent – no unfairness occasioned by delay in trial – no denial of opportunity to cross examine key witness – no misdirection as to mental element of the offence – recklessness – whether defence case mischaracterised in summing up – no denial of procedural fairness – no miscarriage of justice.

CRIMINAL LAW – sentence appeal – whether conduct of trial by counsel improper or negligent – whether reasonable apprehension of bias – further findings of fact by trial judge without evidence – whether principles of parity or relativity misapplied – whether sentence manifestly excessive – discretion to re-sentence not exercised.

Reeves v R; R v Reeves [2013] NSWCCA 34 (21 February 2013)

CRIMINAL LAW – appeal – conviction – maliciously inflicting grievous bodily harm with intent – Crimes Act s 33 – medical assault – whether lawful cause or excuse – whether jury misdirected as to consent -correct direction as to consent – operation of Criminal Appeal Act s 6(1) proviso – whether accused deprived of reasonable chance of acquittal

CRIMINAL LAW – appeal – conviction – aggravated indecent assault – Crimes Act s 61M – whether verdict unreasonable or unsupportable on evidence – reliability of complainants testimony – relevance of delay

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – objective seriousness – mitigating factors – whether undue weight placed on subjective factors – whether structure of sentences such that total effective sentence manifestly inadequate

R v DF (No 3) [2013] ACTSC 22 (13 February 2013)

CRIMINAL LAW – jurisdiction, practice and procedure – trial by judge alone – offence of committing act of indecency on a person between ten and sixteen years – accused not guilty.

CRIMINAL LAW – evidence – complaints – where made by complainant to a number of persons – whether appropriate to give a direction in accordance with R v Murray (1987) 11 NSWLR 12 – direction given.

CRIMINAL LAW – evidence – miscellaneous matters – date of offence – whether particular – whether date can be changed to comply with evidence – not able to change date.

Greensill v The Queen [2012] VSCA 306 (13 December 2012)

CRIMINAL LAW – Appeal – Conviction and sentence – Sexual offences – Nine counts of indecent assaults against two children under ten – Children were former students 30 years ago – Whether open on the whole of the evidence for the jury to be satisfied beyond reasonable doubt – Whether trial judge erred in failing to give a forensic disadvantage direction – Section 61 Crimes Act 1958 and Section 165B Evidence Act 2008 considered and compared – No request made to give forensic disadvantage direction – Obligation of trial judge to give such directions as are essential to avoid a miscarriage of justice discussed -Whether ‘fresh evidence’ adduced after trial demonstrated a substantial miscarriage of justice – Whether verdicts unsafe and unsatisfactory – Appeal allowed – Verdicts unsafe and unsatisfactory – Convictions and sentence quashed – Verdicts of acquittal entered.

F A D v The Queen [2012] VSCA 195 (16 August 2012)

CRIMINAL LAW – Conviction – Series of sexual offences against a child – Whether conviction unsafe and unsatisfactory – Whether delay and asserted inconsistencies in and improbability of complainant’s evidence taken together render conviction unsafe and unsatisfactory – Appeal dismissed – No point of principle.

Delay between the alleged offending and the trial

21 The matters in issue were alleged to have occurred between 17 and 20 years prior to the trial. This factor provides the context in which the other matters raised by the appellant must be assessed.

22 Nevertheless, this is not a case where it can be said that the appellant has suffered specific forensic prejudice as the result of a matter such as the death of a witness. Moreover, the trial judge gave an extended direction to the jury as to the question of delay, including specific directions that the likelihood of distorted memory was increased by delay and that delay may have affected the appellant’s ability to rebut the prosecution case.[8] His Honour’s directions complied with s 61(1A), (1B) and (1C) of the Crimes Act 1958 and s 165B of the Evidence Act 2008 .

P T v The Queen [2011] VSCA 43 (23 February 2011)

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 10 (2 counts), gross indecency, indecent act with child under 16 (2 counts) – Delay in complaint – Whether applicant suffered ‘significant forensic disadvantage’ – Applicant absent because of illness during jury deliberation – Whether additional warning required – Application refused – Crimes Act 1958 (Vic) s 61(1A), Evidence Act 2008 (Vic) s 165B.

CRIMINAL LAW – Appeal – Sentence – Whether sentence of eight years’ imprisonment with non-parole period of six years manifestly excessive – Whether changes in applicant’s health constituted new evidence – Application refused.

WORDS AND PHRASES – ‘Significant forensic disadvantage’.

GG v Regina [2010] NSWCCA 230 (12 October 2010)

CRIMINAL LAW – appeal – conviction – warning to jury – delay between offence and complaint – whether trial judge failed to properly direct the jury in relation to delay in complaint
CRIMINAL LAW – appeal – conviction – warning to jury – danger of convicting on uncorroborated evidence of complainant where such evidence cannot be adequately tested because of passage of time – whether trial judge should have warned the jury in accordance with Longman v R [1989] HCA 60, (1989) 168 CLR 79
CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA
CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Evidence Act 1995, s 165B
STATUTORY INTERPRETATION – Criminal Procedure Act 1986 – Evidence Act 1995 – transitional provisions

R v Forsti [2010] ACTSC 85 (19 August 2010)

EVIDENCE – warnings concerning the complainant’s evidence – delay in making complaints – Longman warning given – Evidence Act 1995 (Cth) s 165B – risk of “false” or “recovered” memories – reliability of complainant’s evidence – uncharged acts not led for tendency or propensity purposes – evidence of uncharged acts does not have special confirmatory value towards events subject of the indictment – inconsistency in evidence between committal and trial does not necessarily suggest fabrication of genuine recollection

TJ v R [2009] NSWCCA 257 (21 October 2009)

CRIMINAL LAW – appeal – appeal against conviction – sexual assault – particular grounds of appeal – misdirection and non-direction – direction where accused disadvantaged by delay in complaint – whether Longman warning adequate – requirements of Longman warning – whether a warning required in terms – whether particular words required
INTERPRETATION – amendment to s 294 Criminal Procedure Act – transitional provisions – transitional provisions not to apply to proceedings commenced before the commencement of the amendments – when proceedings commence
WORDS & PHRASES – “proceedings” – “caution” – “warning” – “in terms”

R v DF [2010] ACTSC 31 (15 April 2010)

CRIMINAL LAW – trial by judge alone – offence of act of indecency upon person above the age of 10 but under the age of 16 – accused found guilty.

CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent – reasonable doubt whether offence committed within dates specified in indictment – accused found not guilty.

CRIMINAL LAW – two charges depending on uncorroborated evidence of complainant – finding that elements of first charge made out beyond reasonable doubt – finding that second charge cannot be made out as to dates specified in indictment – application by counsel to review finding on first count having regard to finding on second count – finding on second count relates to reliability of evidence about dates, not complainant’s veracity or honesty – no requirement to find reasonable doubt about first charge as a result of doubt about second charge.

EVIDENCE – requirement that complainant in sexual offence proceeding not be identified – accused’s granddaughter a complainant in another sexual offence proceeding – granddaughter’s complaint relevant to defence in this proceeding – difficulty of dealing with defence arguments properly without indirectly identifying granddaughter – names of all family members, including accused, suppressed – Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40.

EVIDENCE – complainant’s evidence of earlier complaints to mother admitted – evidence remained admissible despite exclusion of mother’s evidence of complaint – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – prior consistent statements by complainant – defence case included claims that complainant’s evidence had been fabricated or reconstructed or was the result of suggestion – evidence of earlier complaints by complainant admitted – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – operation of Evidence Act 1995 (Cth) in judge-alone trials in ACT – requirement that judge take into account a warning that a Territory law would require to be given to a jury – whether “warning” includes directions or comments – effect of Evidence Act provisions expressed to apply where there is a jury – meaning of “Territory law” – Evidence Act not a “Territory law” under Legislation Act 2001 (ACT) – provisions of Evidence Act expressed to apply in jury trials may not be applicable to judge-alone trials in ACT.

EVIDENCE – possible unreliability of evidence of complainant and other prosecution witnesses – complainant’s cousin’s role in instigation of complaints – whether complaints reflected “false” or “recovered” memory – complainant’s faulty recall of incidental details – implausibility of allegation about second incident – “improvement” in evidence of prosecution witnesses.

EVIDENCE – possible unreliability of complainant’s evidence – whether complainant or another prosecution witness had a motive to lie – whether another witness’s motive to lie could affect reliability of complainant’s evidence – whether complainant’s inherently central role in the possible conviction of the accused renders her evidence unreliable.

EVIDENCE – complainant encouraged to make formal complaints by cousin – no necessary implications for truth of complaints – complainant’s evidence not unreliable by reason only of complaints having been encouraged.

EVIDENCE – allegations of “false” or “recovered” memories – no evidence that complainant’s memories had ever been lost – no evidence suggesting creating or implanting of memories – mistakes about matters of detail are not the same as, or evidence of, “false” or “recovered” memory.

EVIDENCE – “improvement” in evidence between committal and trial does not render evidence necessarily unreliable – implausibility of matters in evidence not a reason for finding evidence unreliable – allegation of acts of indecency in presence of others not necessarily implausible.

EVIDENCE – character evidence – weight to be given to character evidence from witnesses who decline to hear details of allegations.

EVIDENCE – evidence taken by video link from Victoria on voir dire – direction under Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20 only available in respect of a participating State – participating States are those in which provisions are in force in terms substantially corresponding to Part 3 of that Act – Victorian legislation is not corresponding legislation – Victoria is not a participating State – no order available under s 20 – Practice Direction not a sufficient basis for admitting evidence in criminal trial, even with consent of other party – evidence excluded.

EVIDENCE – delay in making complaints – Longman warning – Evidence Act 1995 (Cth), s 165B – requirement under s 165B for defence to identify significant forensic disadvantage claimed to result from delay – significance of delay in absence of sworn denial by accused – significance of delay having regard to extensive cross-examination of complainant about details of allegations.

R v NZ [2005] NSWCCA 278 (17 August 2005)

[2005] NSWCCA 278

Criminal Law – Verdicts – whether verdicts of co-accused inconsistent – whether reasonable basis upon which the jury could distinguish the Crown case against each of the co-accused – Evidence – sexual offences – child complainant – evidence in chief of juvenile Crown witnesses given by videotape – videotapes given to jury for replaying in jury room during deliberations – no warning to jury against giving videotaped evidence disproportionate weight – jury asked for and received complainant’s cross-examination – whether fundamental procedural irregularity – Evidence (Children) Act 1997 – Rule of comity – applicability of rule of comity to issues of practice and procedure – applicability of rule of comity between jurisdictions with and without Uniform Evidence Act.

Evidence Act 1995 (NSW) – ss 165A, 165B

R v WSP [2005] NSWCCA 427 (14 December 2005)

[2005] NSWCCA 427

1 SPIGELMAN CJ: I have read the judgment of Hulme J in draft. I agree with his Honour’s reasons in the first trial, involving the complainant MK and with the order his Honour proposes in that case. With respect to the second trial, involving the complainant CJ, his Honour sets out the facts and the issues and I gratefully adopt his Honour’s reasons in that respect. His Honour would allow the appeal on the basis of the inadequacy of the Longman warning and order a new trial.

2 The stringency of the requirement for a Longman warning has emerged clearly from the majority judgments in Crampton v The Queen [2000] HCA 60; (2001) 206 CLR 161 and Doggett v The Queen [2001] HCA 46; (2001) 208 CLR 343, which were analysed in this Court in the judgments of Wood CJ at CL and Sully J in R v BWT [2002] NSWCCA 60; (2002) 54 NSWLR 241. Subsequent to that analysis the High Court returned to the issue in Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 and held, notwithstanding a delay of five years, that no Longman warning was required.

Munn v R; Miller v R [2006] NSWCCA 61 (24 March 2006)

[2006] NSWCCA 61

Criminal law

juror complains about asserted out-of-court acts of accused

whether juror biased

whether complaint appropriately dealt with

Criminal law

whether juror biased

whether irregular to receive verdicts without further enquiry

whether miscarriage of justice

Criminal law

defence counsel prevented from cross-examining complainant on her general sexual experience

Crown Prosecutor submitted in closing that complainant appeared to lack sexual experience

whether miscarriage of justice

Criminal law

delay in complaint

whether substantial

whether warning required about effect of delay on accused’s ability to defend themselves

Criminal law

whether convictions unreasonable and unable to be supported by the evidence

Tully v R [2006] HCA 56; (2006) 231 ALR 712; (2006) 81 ALJR 391 (7 December 2006)

[2006] HCA 56

Evidence – Criminal trial – Sexual offence – Uncorroborated evidence – Delay in making of complaint – General rule from Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 requiring warning of danger of conviction – Whether trial judge bound to give a warning in present case – Duty to make comments in interests of justice – Requirement of fair trial – Conviction depended on evidence of complainant alone – Whether need for warning or comment as referred to in Robinson v The Queen  [1999] HCA 42; (1999) 197 CLR 162.

Evidence – Criminal trial – Sexual offence – Evidence of uncharged acts – Whether admissible as relationship evidence – Whether subject to the constraints imposed for the admissibility of similar fact or propensity evidence.

Words and phrases – “delay”, “Longman warning”, “propensity evidence”, “similar fact evidence”, “uncharged acts”, “uncorroborated evidence”.

Criminal Code (Q), ss 229B, 632.

Criminal Law (Sexual Offences) Act 1978 (Q), s 4A.

Evidence Act 1977 (Q), Div 4A, subdiv 3.

Crampton v R [2000] HCA 60; 206 CLR 161; 176 ALR 369; 75 ALJR 133 (23 November 2000)

[2000] HCA 60

Criminal law – Direction to jury – Events allegedly occurred in 1978 – Complaint made in March 1997 – Whether Longman warning required – Requirements of Longman warning.

Criminal law – Act of indecency with another male person – Whether defendant entitled to be acquitted on the basis that the evidence did not support a verdict of guilt on the correct interpretation of Crimes Act 1900 (NSW), s 81A.

Constitutional law (Cth) – Whether the High Court can entertain grounds of appeal sought to be raised for the first time in the High Court.

Words and phrases – “with”.