Category Archives: s. 192

White v Johnston [2015] NSWCA 18 (18 February 2015)

ASSAULT AND BATTERY – dental treatment – whether patient’s consent invalid because sole purpose was non-therapeutic – whether onus lay on patient or practitioner – whether absence of consent of the gist of assault and battery

DAMAGES – exemplary damages – whether Civil Liability Act 2002 (NSW), s 3B applied – requirement to determine compensatory damages before considering whether to order exemplary damages – whether other decisions comparable

EVIDENCE – tendency evidence – whether evidence of other malpractice by practitioner wrongly admitted – whether evidence able to be used for purpose different from that for which it was tendered – whether evidence of malpractice significantly probative of performing work with no therapeutic purpose

MEDICAL PRACTITIONERS – consent to treatment – whether consent to dental treatment invalid because of wholly non-therapeutic purpose – onus of proof

Audsley v The Queen [2014] VSCA 321 (8 December 2014)

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary, armed robbery, recklessly causing serious injury and assault – Evidence – Credibility of witness – Expert evidence – Evidence of neuropsychologist as to effect of drug use on reliability of memory – Whether wrongly excluded – Crown concession of error – Appeal allowed – Evidence Act 2008 , ss 101A, 108C, 192.

EVIDENCE – Credibility rule – Exception – Expert evidence concerning credibility of witness – Effect of drug use on reliability of memory – Whether admissible – Discretion to exclude – Whether wrongly excluded – Evidence Act 2008 ss 101A, 108C, 192.

Rathner in his capacity as Official Liquidator of Kalimand Pty Ltd (in liq) v Hawthorn [2014] FCA 1067 (8 October 2014)

CORPORATIONS – Company wound up – Voidable transactions – Identification of transaction – Insolvent transactions – Meaning of becoming insolvent “because of” entering into transaction – Uncommercial transactions

EVIDENCE – Transcript of public examination of director – Whether admissible against company – Exception to hearsay rule

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.

Golossian v R [2013] NSWCCA 311 (10 December 2013)

CRIMINAL LAW – appeal against conviction – application for extension of time – unsatisfactory explanation for delay – prejudice occasioned by bifurcation of appellate process in respect of appeal against conviction by co-accused and risk of inconsistent decisions

CRIMINAL LAW – appeal against conviction – whether guilty verdict open to jury – whether trial judge’s summing up unfair and unbalanced – refusal of application to recall complainant late in the trial

Huges (a Pseudonym) v The Queen [2013] VSCA 338 (28 November 2013)

CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.

Rashid v Smar Pty Ltd [2013] NSWSC 1712 (18 November 2013)

JUDICIAL REVIEW – appeal from judgments of Local Court – leave to appeal from an interlocutory order of the Local Court – whether plaintiff was denied procedural fairness – plaintiff was unrepresented and had language difficulties – whether Magistrate erred in finding no triable issue – costs.

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

Potter v The Queen [2013] VSCA 291 (18 October 2013)

CRIMINAL LAW – Appeal – Conviction – Murder – Co-offender pleaded guilty – Multiple gunshots to victim’s head – Applicant shot and stabbed victim – Whether open to jury to conclude that applicant aided and abetted or acted in concert with co-offender – Whether evidence of victim’s emergency calls admissible to prove applicant’s participation – Consciousness of guilt – Whether evidence of applicant’s lies admissible – Leave to appeal refused – R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 applied – Evidence Act 2008 (Vic) ss 65(2), 137, 192.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Australian Competition and Consumer Commission v Air New Zealand Limited (No 10) [2013] FCA 322 (11 April 2013)

EVIDENCE – Re-examination – Proper scope of re-examination – Whether evidence not given in examination in chief can properly arise in re-examination – Particular facts of the representation made

EVIDENCE – Exception to hearsay rule – Where maker of representation overseas – Whether reasonable efforts to secure witness had been made – Whether notice requirements in s 192(2) of the Evidence Act 1995 (Cth) complied with

EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when hearsay adduced in re-examination – Whether such evidence should be the subject of a direction under s 135 or s 136 of the Evidence Act 1995 (Cth)

EVIDENCE – Witnesses – Unfavourable witness – Evidence Act 1995 (Cth) s 38 – Whether a party should call a witness to disprove an unfavourable statement adduced by hearsay

EVIDENCE – Discretion to exclude – Whether evidence unfairly prejudicial when maker of the representation is not available for cross-examination

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.

DPP v Kocoglu [2012] VSC 185 (9 May 2012)

CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.

DPP v Polutele [2011] VSC 223 (26 May 2011)

CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements – Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R [1988] HCA 43; (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act – Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.

Shepherd v R [2011] NSWCCA 245 (17 November 2011)

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

R v SH, MV and KC [2011] ACTSC 198 (17 November 2011)

EVIDENCE – witnesses – unfavourable witnesses – advanced rulings on whether leave should be given to cross-examine witnesses.

EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses.

Evidence Act 1995 (Cth), ss 11, 38, 41, 55, 135, 137, 192, 192A

R v Perish; R v Lawton; R v Perish [2011] NSWSC 1112 (18 August 2011)

CRIMINAL LAW – unfavourable witness – whether leave granted to Crown to cross-examine should be extended – considerations of fairness.

10. In my view, however, the present controversy may be readily resolved by a close consideration of s 137 Evidence Act which is as follows:

“In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.”

11. The term “probative value” is defined in the Dictionary to the Evidence Act to mean:

” … the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

Director of Public Prosecutions v Finnegan [2011] TASCCA 3 (21 April 2011)

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]

ES v R (No.2) [2010] NSWCCA 198 (6 September 2010)

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

Isherwood v Tasmania [2010] TASCCA 11 (2 September 2010)

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]

DPP v McRae [2010] VSC 114 (10 March 2010)

Joint criminal enterprise – Murder – Unfavourable witnesses – Prior inconsistent statements – Application to cross-examine pursuant to s 38 Evidence Act 2008 (Vic) – Admissibility of statements made to police and audio visual recordings of interviews as evidence – Unfair prejudices – ss 38, 60, 135, 136, 137 and 192 Evidence Act 2008 (Vic).

R v Peter John Parkes [2010] ACTSC 44 (21 May 2010)

CRIMINAL LAW – trial by judge alone – offence of trafficking in a controlled drug other than cannabis, namely heroin – whether accused sold heroin or gave it as a gift – sale not proved beyond reasonable doubt – accused found not guilty.

EVIDENCE – prior inconsistent statements – assessment of explanation for making prior inconsistent statement – consideration of what use can be made of prior inconsistent statement – operation of credibility rule and hearsay rule – prior inconsistent statement admitted to prove the truth of the facts asserted in the statement.

CRIMINAL LAW – circumstantial case – judge asked to draw particular inferences from evidence – whether evidence supports those inferences – requirement that no inference should be drawn from direct evidence unless it is the only rational inference available.

CRIMINAL LAW – prosecution request that if verdict of acquittal to be entered, the Court should instead direct the accused to be indicted on a charge of possession of heroin – operation of s 296 Crimes Act 1900 (ACT) – s 296 not applicable where accused to be acquitted – possession charge no longer indictable.

Evidence Act 1995 (Cth), ss 38, 59, 60, 101A(b), 102, 103, 192

R v Steven Wayne Hillier [2010] ACTSC 33 (16 April 2010)

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.

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

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (13 November 2009)

[2009] FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.

PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.

PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.

Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A

Burrell v Regina [2009] NSWCCA 163 (17 June 2009)

[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

R v Harker [2004] NSWCCA 427 (2 December 2004)

[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

R v Peter Li [2003] NSWCCA 386 (19 December 2003)

[2003] NSWCCA 386

Criminal Law – Summing up – directions- corroboration – onus of proof – reasonable doubt – lies – need for scrutiny of complainant’s evidence

Criminal Law – Crown Prosecutor’s final address – demeanour of complainant – tears – reference to

Evidence – second trial after jury in first trial discharged – witness overseas – whether “unavailable” – whether witness’ evidence in previous trial admissible – depositions

Words and phrases – depositions

Evidence Act 1995 ss 65, 67, 192, dictionary

R v Fowler [2003] NSWCCA 321 (11 November 2003)

[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

R v Esho; R v Sako [2001] NSWCCA 415 (23 October 2001)

[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.