Category Archives: s. 108C

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.

SLS v The Queen [2014] VSCA 31 (6 March 2014)

CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.

Quarter Enterprises Pty Ltd v Allardyce Lumber Company Ltd [2014] NSWCA 3 (6 February 2014)

JUDGMENTS – foreign judgment – High Court of Solomon Islands judgment registered pursuant to Foreign Judgments Act 1991 (Cth) – application to set aside registration – whether judgment was a “money judgment” within the meaning of the Act.
JUDGMENTS – foreign judgment – application to set aside registration – whether the foreign court had jurisdiction.
JUDGMENTS – foreign judgment – application to set aside registration – whether there was a prior final and conclusive judgment.
JUDGMENTS – foreign judgment – application to set aside registration – setting aside foreign judgment for fraud – relevant principles – whether the foreign judgment had been obtained as a result of fraud.

De Silva v The Queen [2013] VSCA 339 (28 November 2013)

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.

M A v The Queen [2013] VSCA 20 (14 February 2013)

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.

Dupas v The Queen [2012] VSCA 328 (21 December 2012)

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 [2006] NSWCCA 112; (2006) 66 NSWLR 228 disapproved; R v Carusi (1997) 92 A Crim R 52, DSJ v R [2012] 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 [1992] HCA 35; (1992) 174 CLR 558 considered – Evidence Act 2008 (Vic) ss 164, 165.

Ewin v Vergara [2012] FCA 1240 (9 November 2012)

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

C M G v The Queen [2011] VSCA 416 (9 December 2011)

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 [2010] EWCA Crim 4 discussed – Appeal allowed.

R v Dupas [2010] VSC 409 (15 September 2010)

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.

R v WR [2010] ACTSC 89 (31 August 2010)

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

Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 (30 September 2010)

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

Stanoevski v R [2001] HCA 4; 202 CLR 115; 177 ALR 285; 75 ALJR 454 (8 February 2001)

[2001] HCA 4

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.