http://www.austlii.edu.au/au/cases/cth/FCA/2012/1457.html

EVIDENCE – admissibility – whether a matter of discretion – question whether appellant had mental capacity to participate in hearing before independent merits reviewer in relation to his claim for a protection visa – appellant relied on report of expert as to his mental condition – federal magistrate held report inadmissible – relied on weight and on conflicting evidence – no exercise of power to exclude admissible evidence because probative value outweighed by other factors – whether error by federal magistrate

HIGH COURT AND FEDERAL COURT – appeal – orders – consent orders – whether Court should make consent orders – consent orders based on incorrect assumption about basis of judgment the subject of appeal – appeal raised questions capable of being determined conclusively by appeal court

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/32.html

CRIMINAL LAW – knowingly concerned in cultivation of large commercial quantity of cannabis plants – discharge of jury – possibly prejudicial evidence effectively withdrawn by trial judge from jury’s consideration – sentencing – aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act – wrongly found by sentencing judge – these factors inherent in offence – applicants re-sentenced

Evidence Act – ss 37, 37(1)(c), Part 3.3

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/97.html

APPEAL – failure to challenge admissibility of evidence in Magistrates Court – wish to save time in Magistrates Court not an excuse sufficient to justify raising admissibility on appeal.

EVIDENCE – whether identification evidence was evidence of opinion or evidence of fact – identification of witness’s own remembered observation with later observation not opinion evidence.

EVIDENCE – whether failure to hold identification parades deprived defendant of chance of acquittal – considerations in whether to hold identification parade – nature and circumstances of witnesses’ observations – scope for accused person changing appearance in relevant respects – no obligation to hold identification parade if any result would be unreliable.

EVIDENCE – whether treatment of identification evidence resulted in unsafe and unsatisfactory verdict – whether evidence should have been excluded as unfairly prejudicial – whether Magistrate was sufficiently aware of potential unreliability of identification evidence – prosecution required to establish defendant’s guilt beyond reasonable doubt, not required to disprove defendant’s evidence beyond reasonable doubt.

Evidence Act 1995 (Cth), ss 114,114(2)(b),114(3),137
Evidence Act 1995 (NSW), Pt 3.3, s 76

 [2005] NSWCCA 356

appeal against conviction

malicious wounding in company

whether evidence concerning film footage admissible

evidence on voir dire subsequently admitted

witness saw appellant from front view after incident ended but was unable to identify him from front view footage

witness did not see appellant from rear view but purported to identify him from that footage

whether evidence relevant

evidence of fact

evidence of opinion

witness identified clothing worn by appellant minutes before attack

witness identification by process of deduction and reference to his clothing

interpretation of video evidence

ad hoc expert

Evidence Act 1995, Part 3.3, s56, s76, s78, s79, s137