CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against a child under the age of 16 years – Whether trial miscarried because of counsel’s failure to adduce evidence of the appellant’s good character – Whether trial miscarried because of counsel’s failure to object to evidence of an expert – Crown concession – Appeal allowed – Convictions quashed and retrial ordered.
CRIMINAL LAW – appeal – application for review of conviction for murder under Part 7 Crimes (Appeal and Review) Act 2001 (NSW)
CRIMINAL LAW – Appeal – Appeal against conviction – Convictions arising out of sexual abuse of appellant’s daughter – Admissibility of expert evidence as to the general behaviour of child victims of sexual abuse – Incidental evidence concerning common parental reactions – Relevance of evidence concerning counter-intuitive behaviour –Whether witness had ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2008 – Whether basis of opinion properly established – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 79, 135, 137, 108C – Criminal Procedure Act 2009 s 388 – Appeal dismissed.
CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence – Whether verdict unsafe and unsatisfactory – Appeal dismissed.
CRIMINAL LAW – Appeal – Conviction – Identification evidence – Probative value – Unfair prejudice – Assessment of probative value – Reliability of the evidence – Christie discretion at common law examined – Whether danger that evidence may receive disproportionate weight required exclusion – R v Shamouil  NSWCCA 112; (2006) 66 NSWLR 228 disapproved; R v Carusi (1997) 92 A Crim R 52, DSJ v R  NSWCCA 9 considered – Evidence Act 2008 (Vic) s 137.
EVIDENCE – Expert evidence as to dangers of identification evidence – Opinion rule –Credibility rule – Exception – Reliability of circumstances of identifications – Admissibility of opinion – Whether based on special knowledge – Evidence Act 2008 (Vic) ss 79, 108C.
EVIDENCE – Prison informer – Whether corroboration required – Whether Pollitt direction adequate – Pollitt v The Queen  HCA 35; (1992) 174 CLR 558 considered – Evidence Act 2008 (Vic) ss 164, 165.
PRACTICE AND PROCEDURE – ruling prior to trial on admissibility of evidence of proposed witnesses –
s 192A of the Evidence Act 1995 (Cth) – evidence going to the credibility of another witness inadmissible unless falls within stated exceptions – reliance upon exception in s 106 of Evidence Act premature – s 108C exception in respect of expert evidence only applies where the expert evidence deals with the capacity of the other witness to give credible evidence – proposed witness evidence inadmissible – witnesses not to be called without leave of the Court.
Evidence Act 1995 (Cth) ss 102, 106, 108C, 192A
PROCEDURE – notice of motion – leave sought to re-order five volumes of material already served – not opposed, leave granted – leave sought to file further evidence – expert evidence – application opposed – leave refused – reasons for decision
CRIMINAL LAW – Conviction – Committing an indecent act with a child under 16 – Taking part in an act of sexual penetration with a child under 16 – Reliability of evidence given by child witnesses – Whether trial judge when summarising the defence closing submissions erred in referring to material not in evidence concerning the reliability of child witnesses – Status of the comments as directions of law – R v Barker  EWCA Crim 4 discussed – Appeal allowed.
CRIMINAL LAW – Murder – Application for a permanent stay of re-trial – Whether pre-trial publicity such that fair trial not possible – Application for a stay refused
46 The accused also seeks to lead expert evidence pursuant to s 108C of the Evidence Act 2008 , from Dr Richard Kemp, a psychologist from the University of New South Wales. Dr Kemp’s proposed evidence addresses the “displacement effect”, being the considerable danger that a witness’s memories for a person they have seen is likely to have been affected by exposure to the many images of the accused which were presented in the media and linked to the Halvagis murder.
47 Finally, the accused seeks to exclude the following evidence, which is apparently to be relied upon by the Crown to demonstrate evidence of consciousness of guilt, or implied admissions of guilt: a hairdresser, Domenica D’Alberto, who will give evidence about discussions she had with the accused, before and after the date of Ms Halvagis’ murder, about him changing his hairstyle; an optometrist, Isabella La Rocca, and a spectacle maker, Jack Sgourakis, who will give evidence about the accused changing his style of glasses in early November 1997; and evidence from Ms La Rocca as to the accused having a scratch on his cheek on 7 November 1997, which he told her he got at work, together with evidence from his then-employer, John Kazakis, that the accused did not report any workplace injury in November 1997. The accused seeks to have the evidence of all four witnesses excluded under s 137 of the Evidence Act 2008 , on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice to him.
EVIDENCE – admissibility of expert opinion evidence – expert opinion evidence going to credibility of witness.
EVIDENCE – expert opinion evidence non-compliant with Makita (Australia) Pty Ltd v Sprowles principles – report prepared by psychiatrist failed to identify how expert specialised knowledge justifies statements made in report – expert opinion evidence inadmissible.
Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40T, 51, 58, 59, 79, 108C, divs 4.2B, 4.5
Evidence Act 1995 (Cth), ss 56, 76, 79, 102, 108C
APPEAL – criminal – interlocutory appeal – power to take further evidence and make other judgment – appeal by way of rehearing – Criminal Appeal Act 1912 (NSW), s 5F(3A) – EVIDENCE – criminal trial – objection to the tender of recorded interviews of child – whether contaminated by suggestion – unfair prejudice – Evidence Act 1995 (NSW), s 137 – EVIDENCE – interview of child – whether affected by later hypnosis sessions – no reliance on post-hypnosis evidence – difficulties for post-hypnosis cross-examination – whether assessed under Evidence Act 1995 (NSW), s 137 or general law – PROCEDURE – criminal – objection to prosecution evidence – pre-trial hearing – Evidence Act 1995 (NSW), s 192A
Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A
Evidence - Evidence Act 1995 (NSW) – Character evidence – Accused raised own good character – Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue – Whether discretion to allow cross-examination miscarried.
Words and phrases – “good character” – “credibility” – “leave, permission or direction” – “unfairness”.
Evidence Act 1995 (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192.