Category Archives: Schedule 2

Munro v R [2014] ACTCA 11 (24 April 2014)

http://www.austlii.edu.au/au/cases/act/ACTCA/2014/11.html

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – where statement details system of work employed by cleaner relevant to when DNA may have been deposited at scene – whether statement made in circumstances that make it highly probably that the statement is reliable: s 65(2)(c) Evidence Act 2011 (ACT) – where related to system regularly repeated and therefore likely to be remembered, where no personal interest in trial, where desire to maintain reputation likely outweighed by inclination to avoid criminal prosecution – s 65(2)(c) does not apply to a statement simply because it was made to a police officer

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – whether trial judge erred in ruling probative value not outweighed by danger of prejudice: s 137 Evidence Act 2011 (ACT) – where author deceased and therefore unavailable for cross-examination – whether jury would assign undue weight to statement in absence of cross-examination – where statement admitted for limited purpose – where judicial directions and counsel’s address to jury available

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to unreliability of witness – where witness involved in offence charged – where witness had lied in earlier proceedings – s 165 Evidence Act 2011 (ACT) does not require trial judge to form a view as to unreliability of evidence before directing jury – where trial judge gave further directions at request of appellant, and no further request, indicating adequacy of directions

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to circumstantial evidence – whether evidence in circumstantial case need to be proved beyond a reasonable doubt – evidence in “strands in the cable” case not necessary to prove individual strands beyond a reasonable doubt, nor necessary that individual strands support guilt – misdescription of case as both direct evidence and circumstantial not misleading – where no request for redirection

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to statement by cleaner – where misdirection that statement was not hearsay immaterial – where author deceased and therefore unavailable for cross-examination – whether jury should have been warned of unreliability – where warning at discretion of judge – where no basis for unreliability beyond unavailability – where no request for redirection

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether verdict unsafe and unsatisfactory – where evidence of unreliable witness supported by other evidence in trial – where jury adequately directed – where the evidence was not so lacking in cogency, did not contain such discrepancies or inadequacies, and was not so tainted as to make verdicts of not guilty the only proper verdicts

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – where no application under r 5531 Courts Procedures Rules 2006 (ACT) – r 5531 not a formality to be neglected – operation of rule alone sufficient to dispose of appeal grounds alleging misdirection

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – aggravated robbery and intentionally inflict grievous bodily harm – whether disparity between sentences imposed on appellant and co-offender – where appellant sentenced for two offences and co-offender only one – common elements in offences not a reason to reduce sentence, but a factor in determining concurrency – where appellant was individual who discharged weapon causing grievous bodily harm, not co-offender – where co-offender not sentenced on basis of discharge of firearm – where co-offender pleaded guilty – where subjective circumstances different

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether manifestly excessive – serious example of offending – where offences called for strong general deterrent effect

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether trial judge in error in relying on aggravating feature not proved beyond reasonable doubt – where criminal history suggested appellant was at large in breach of bail at committal – where history possibly inconsistent – where no inference available that the appellant had absconded from bail in South Australia – where trial judge made findings of aggravating circumstances, necessary inference is they were taken into account on sentence

R v Darmody [2010] VSCA 41 (9 March 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/41.html

CRIMINAL LAW – Application for special leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 – Whether judge below erred in holding that the Evidence Act 2008 applied – Whether provisions of Clause 2(2) of Schedule 2 to the Evidence Act 2008 correctly applied by the judge – Whether complainant ‘not available to give evidence’ within the meaning of s 65(1) of the Evidence Act 2008 – Power to receive prior statement of an unavailable witness – Section 67(1)(4), the Evidence Act 2008 – Whether judge erred in excusing failure to give notice of intention to adduce evidence – Section 137, the Evidence Act 2008 – Whether probative value of evidence given by complainant at committal hearing was outweighed by danger of unfair prejudice to applicant – Whether judge erred in not excluding such evidence.