http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/480.html

EVIDENCE – witness – use of document to revive memory or witness – document contemporaneous to relevant events – revival in conference

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/245.html

CRIMINAL LAW – conviction appeal – appellant convicted of murder of his partner – conversation between appellant and his brother – brother’s first version of conversation asserted that appellant said “How can they [the children] love me? I killed their mother” – brother later asserts first version was incorrect and that the appellant said “How can they love me if I killed their mother” – Crown given leave to cross-examine brother under s.38 Evidence Act 1995 – Crown relied on first version as admission of guilt – trial Judge directs jury that first version capable of constituting admission – contended on appeal that error in accordance with Lee v The Queen [1998] HCA 60; 195 CLR 94 – point not taken at trial – whether leave under Rule 4 should be granted – Crown concedes that error occurred at trial – whether proviso applied – Crown case involving circumstantial evidence and direct evidence – by reference to admissible evidence used permissibly, Court satisfied beyond reasonable doubt of guilt of appellant – appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1351.html

PRACTICE AND PROCEDURE – Expert evidence – Joint reports of experts – Whether reasons are required for agreement between experts – Procedural fairness

- Evidence Act 1995 (NSW) – s 11(1), s 79, s 135, s 190, s 192

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/1326.html

ADMISSIONS – application to withdraw – principles – evidence – admission of affidavit evidence from other proceedings

http://www.austlii.edu.au/au/cases/tas/TASCCA/2011/3.html

Criminal Law – Evidence – Credibility – Prior inconsistent statements – Generally – Application by Crown to cross-examine own witness – Factors relevant to exercise of discretion whether to permit cross-examination – One purpose of application to satisfy requirements to enable Crown to tender prior inconsistent statement as evidence of truth of contents.
Evidence Act 2001 (Tas), ss38, 43, 192.
R v Adam (2001) 207 CLR 96, applied.
Tasmania v Mayne [2009] TASSC 82; Tasmania v S [2004] TASSC 84; Houston and Stanhope v R (1982) 8 A Crim R 392, referred to.
Aust Dig Criminal Law [2872]

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1516.html

EVIDENCE – Witnesses – adverse witnesses – whether leave should be granted under (NSW) Evidence Act 1995 , s 38

(NSW) Evidence Act 1995 s 38, s 192

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/198.html

CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault – Whether evidence of uncharged acts thereby made admissible.

Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192

http://www.austlii.edu.au/au/cases/tas/TASCCA/2010/11.html

Criminal Law – Procedure – Witnesses – Powers of judge – Presence of witnesses in court before giving evidence – Discretion – Unrepresented accused wishing witness to act as McKenzie friend.
Moore v Lambeth County Court Registrar [1969] 1 All ER 782; Tomlinson v Tomlinson [1980] 1 All ER 593; R v Bassett [1952] VLR 535; R v Tait [1963] VR 520, referred to.
Aust Dig Criminal Law [3145]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Other irregularities – Unrepresented accused – Procedural determinations made without inviting submissions – Failure to advise as to rights of parties to address jury.

MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, applied.

R v Coman [1955] VLR 289, not followed.
R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VR 853; Dietrich v R [1992] HCA 57; (1991) 177 CLR 292; Black v Smith (1984) 30 NTR 29; Abram v Bank of New Zealand (1996) 18 ATPR 41-507; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154; Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, referred to.
Aust Dig Criminal Law [3469]

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Possession of child exploitation material – Inadequate evidence of knowledge by accused that material was in his custody.
Chidiac v R [1991] HCA 4; (1991) 171 CLR 432; M v R [1994] HCA 63; (1994) 181 CLR 487, applied.
Aust Dig Criminal Law [3475]

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/788.html

PRACTICE AND PROCEDURE – Application to reopen trial – Judgment reserved – Witness recalls additional evidence – Application allowed.
Evidence Act 1995 s 192

CRIMINAL LAW – trial by judge alone – murder – circumstantial case – evidence of motive, opportunity and consciousness of guilt and DNA evidence – reasonable possibility of contamination of DNA evidence – consciousness of guilt evidence not proved beyond reasonable doubt – verdict of acquittal entered.

EVIDENCE – burden of proof in relation to DNA evidence and consciousness of guilt evidence – proof beyond reasonable doubt required because of importance of evidence to Crown case.

EVIDENCE – waiver of rules of evidence under s 190 of Evidence Act 1995 (Cth) – tender of transcript of first trial.

[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

http://www.austlii.edu.au/au/cases/act/ACTCA/2009/17.html
CRIMINAL LAW – reference appeal by Director of Public Prosecutions – whether question of law arose “at” or “in relation to” a trial – exchanges in transcript between judge and counsel do not give rise to a question of law – defective application for a reference appeal.

[2009] NSWCCA 259

CRIMINAL LAW AND PROCEDURE
Convictions for sexual offences
Evidence called by Crown from spouse of the appellant
Leave to cross examine
Ruling that evidence unfavourable giving rise to grant of leave not eroneous
Direction by trial judge
Absence of objection at trial
Comment on scope of rule 4 of Criminal Appeal Rules

[2009] NSWCCA 163

CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – directions to jury – whether the trial judge erred in refusing to give a direction in accordance with Shepherd v R [1990] HCA 56
(1990) 170 CLR 573
CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – whether verdicts unsafe and unsatisfactory, insofar as they are unreasonable and cannot be supported having regard to the evidence
CRIMINAL LAW – appeal – orders made by Court of Criminal Appeal – orders reopened after factual errors discovered in judgment – some grounds appealed to the High Court – case remitted to the Court of Criminal Appeal from the High Court – whether remitter includes grounds not appealed to the High Court
CRIMINAL LAW – appeal – evidence – witnesses – further cross-examination under the Evidence Act 1995, s 38 – whether the trial judge erred in permitting further cross-examination of particular witnesses by one party after cross-examination by the other party of those witnesses
CRIMINAL LAW – appeal – note from juror to trial judge- whether note reveals irregularity during the jury’s deliberations – whether the trial judge erred in giving a direction in accordance with Black v R [1993] HCA 71
(1993) 179 CLR 44 – whether the trial judge erred in not discharging the jury – whether the trial judge erred in failing to enquire whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance
CRIMINAL LAW – appeal – sentence – life imprisonment for murder – whether the trial judge erred in imposing a sentence of life imprisonment

Evidence Act 1995, s 38, s 135, s 137, s 192

[2004] NSWCCA 427

Criminal Law – Evidence – Tendency Evidence – failure to give notice – whether trial judge should have dispensed with notice requirementrs – whether evidence ought to be rejected in exercise of discretion.

Evidence Act 1995 – ss 38, 97(1), 99, 100(1), 101(2), 135, 137, 192, 195

Evidence Act Regulations – clause 6

[2003] NSWCCA 74

[2002] NSWCCA 104

Apeal against conviction and sentence

Evidence

Admissibility and relevance of history given to doctor

Whether relevance should be limited under s136

Comments by Judge where credibility is the issue

New trial or acquittal

Leave to cross examine on prior consistent statements

No reference to s192

[2003] NSWCCA 321

CRIMINAL LAW – Accused convicted of murder – Appeal against conviction – Whether trial Judge erred in her directions to the jury on: lies as evidence of consciousness of guilt; circumstantial evidence; motive; accessorial liability – Whether trial Judge should have warned the jury with respect to particular evidence – Whether trial judge erred in permitting cross-examination of particular witness – Whether trial Judge erred in admitting particular evidence – Whether trial Judge erred in her directions to the jruy on the meaning of an unsworn statement – Appeal agaisnt sentencing – Whether trial judge should have imposed a lesser sentence on the basis that the accused’s liberty had been affected over a length of time due to the circumstances of the case.

Evidence Act, ss 32(2)(b)(i), 38, 55, 137, 165, 192

[2001] NSWCCA 415

Criminal law – appeal against conviction and sentence – malicious infliction of grievous bodily harm under s 35 of the Crimes Act 1900 – affray – whether verdict under

s 35 unreasonable having regard to the acquittal under s 33 of the Crimes Act 1900 – whether directions inadequate – whether verdict unreasonable and not supported by the evidence – doctrine of joint criminal enterprise – malice – ss 38(1), 38 (2) and 192 (2) of the Evidence Act – reliability of admissions – identification – parity – whether sentence manifestly excessive.

[2004] NSWCCA 461

CRIMINAL LAW – Evidence – Character – Bad character – Good character – Whether adduced by defence – Whether evidence given deliberately not inadvertently – Conscience decision

CRIMINAL LAW – Evidence – Character – Requirement for leave – Leave required – Error by trial judge – No miscarriage of justice – Evidence Act, ss 112, 192(2)

CRIMINAL LAW – Jury – Directions – Character direction – Trial judge only directs that evidence of good character able to be considered in relation to guilt – No propensity direction – Requirement to so direct – Risk of jury misunderstanding legitimate use of evidence

CRIMINAL LAW – Evidence – Voice identification evidence – Quality of – Unreliable – Discretion to refuse admission – Identification warning given to jury – Evidence Act, ss 135, 137

[2004] NSWCCA 455

appeal against convictions

knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine

conspiracy to manufacture not less than large commercial quantity of methylamphetamine

proper characterisation of the object of the conspiracy

impossibility of achievement by use of materials available

whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered

whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine

whether separate trial of first count ought to have been ordered

admissibility of coincidence evidence

directions concerning evidence admissible on individual counts

the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts

directions concerning circumstantial evidence

evidence of deceased witness read

indemnified witnesses

cross-examination of appellant on matters relevant only to credibility

evidence of prior criminal conviction

evidence of disciplinary proceedings

discretion to grant leave to cross-examine appellant on credibility

unfairness

“substantial probative value”

unreasonable verdicts

corroboration

corroboration of evidence of accomplices

whether one accomplice can corroborate the evidence of another

directions concerning unreliability of witnesses

jury access to transcripts of counsels’ addresses and summing up

leave to appeal against sentence

appeal dismissed

leave granted to appeal against sentence

appeal dismissed

Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192

[2004] NSWCCA 74

Criminal appeal – kidnapping and sexual assault in company – separate trial applications – evidence of prior convictions – whether good character had been raised – identification evidence – directions on identification – whether defence submissions unsupported by evidence impacted upon fair trial for co-accused – judicial response thereto – whether warning about unreliability of evidence of co-accused appropriate – directions in relation to failure to testify – whether comment” infringed Evidence Act, s20(2) – whether address of counsel for one defendant caused co-accused’s trial to miscarry – whether verdicts unreasonable – evidence that medical examination of complaints was “consistent” with their history of assaults. (D)

Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2)

[2002] NSWCCA 160

CRIMINAL LAW – possession of prohibited imports – Customs Act 1901, s 233B – appeal against conviction – leave to appeal against sentence – whether trial miscarried – directions to jury – onus and standard of proof – evidence of good character – direction on character – cross-examination of accused without leave – offensive cross-examination of accused – D

Evidence Act, s 41, s 112, s 137, s 192

[2001] NSWCCA 330

Criminal law – appeal aganst conviction and severity of sentence – maliciously inflicting grievous bodily harm – whether conviction unreasonable having regard ot the evidence – whether witness “coached”.

[2002] NSWCCA 509

CRIMINAL LAW – Appeal against conviction and sentence for murder – plea of not guilty – Crown appeal against leniency of sentence – Form 1 offences – obtain benefit by deception- exception to hearsay – ERISP evidence – admissibility of out of court statement where maker unavailable – statement against interest.

Evidence Act (NSW) 1995 ss 59 62, 65, 67, 135, 137, 165, 192

[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

[1999] NSWSC 352

CRIMINAL LAW – evidence – admissibility of evidence going only to credit, pursuant to Evidence Act, s 108(1) and (3)(a) and (b)

Evidence Act 1995, ss 55, 102, 108 and 192

[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.

[2007] TASSC 105

Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Error by magistrate must be established.

Justices Act 1959 (Tas), s107(4)(a).
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]

[2006] FCA 941

EVIDENCE – application to question a witness called on subpoena ad test as though cross-examining him under s 38(1)(a), 38(1)(b) and/or 38(1)(c) of the Evidence Act – meaning of ‘unfavourable’ in s 38(1)(a) – permitted scope of questioning as though cross-examining under s 38(1)(c) where there has been a prior inconsistent statement made by the witness.

Held: in the exercise of the Court’s discretion leave should be granted under s 38(1)(c) on the facts of the case.

Evidence Act 1995  (Cth) ss 38(1),  38(3), 192(2)

[2003] NSWCA 308

PROCEDURE – Adjournments – Unrepresented litigant involved in other proceedings – Request for adjournment in late communication to other party – No communication to or appearance in court – Adjournment refused.

EVIDENCE – Hearsay – Previous written statement by witness called by party – Leave to cross-examine sought and refused – Whether an error vitiating decision.

LEGISLATION CITED:

Evidence Act 1995  ss.38, 43, 45, 60, 106, 192

[2004] NSWCCA 23

Accomplices – when they should give evidence

Accomplices – warning

scope of re-examination

prior consistent statements

lies as consequences of guilt – directions

Henry guideline judgment

parity with co-offender.

[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

[2002] NSWCCA 203

CRIMINAL LAW – Juries – Discharge of juror – Whether lawful in absence of jury – Continuing with eleven jurors – Whether discretion miscarried

CRIMINAL LAW

EVIDENCE – Leave to cross-examine own witness – Requirements of Evidence Act ss.38 and 192 – Whether express consideration necessary

CRIMINAL LAW

EVIDENCE – Warnings – Unreliability of witness – Prejudicial evidence – Discretion to exclude or limit – Fresh evidence.

[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)