Category Archives: !! Part 2.01

Oakley v Hyslop [2014] ACTSC 314 (28 November 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Points and Objections not Taken Below – evidence admitted in Magistrates Court was coincidence evidence as defined in Evidence Act – no compliance with Evidence Act notice requirements – no consideration by Magistrate of whether evidence had significant probative value – no consideration by Magistrate whether probative value of evidence substantially outweighed any prejudicial effect on defendant – no objection taken by defence counsel by reference to Evidence Act – failure to object not a waiver – evidence inadmissible because of Magistrate’s failure to consider probative value of evidence – appellant deprived of fair trial – evidence not necessarily inadmissible if Evidence Act provisions properly complied with – no finding that verdict unsafe and unsatisfactory – appeal upheld – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.
EVIDENCE – Admissibility and Relevancy – whether evidence is coincidence evidence – admissibility of coincidence evidence under Evidence Act – effect of failure to comply with statutory requirements for court to consider probative value of coincidence evidence and weigh probative value and prejudicial effect – evidence inadmissible because of lack of compliance with statutory requirements – evidence not necessarily inadmissible if statutory requirements complied with – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.

Herrick v Knowles [2014] NSWSC 1223 (5 September 2014)

EVIDENCE LAW – document sought under subpoena – protected confidence claimed over document – social worker and client relationship – court discretion to prohibit document access – question of harm suffered if access granted – probative value of document – public interest in the confidentiality of protected confidences

Lyndon v R [2014] NSWCCA 112 (24 June 2014)

CRIMINAL LAW – appeal – conduct of prosecution – closing address to jury – general comments made about the credibility of children – whether prosecutor improperly suggested having a particular expertise with respect to the testimony of children – whether prosecutor improperly invited the jury to rely on a lie told by accused – prejudicial effect considered – failure by defence to object at trial – whether audio recording of address should be tendered

CRIMINAL LAW – appeal – whether defence counsel incompetent – failure to lead evidence – complainants said accused was kneeling during sexual intercourse – failure to call medical evidence regarding accused’s difficulties kneeling – whether trial miscarried

CRIMINAL LAW – appeal – unreasonableness of verdicts – separate counts of indecent assault against two children – one count of sexual intercourse with a child – accused found guilty of one charge of indecent assault and charge of sexual intercourse with same child – acquittal on other charges – unreasonableness alleged on lack of consistency between verdicts and unreliability of evidence – possibility of concoction

EVIDENCE – tendency – direction to jury – whether judge should have warned against tendency reasoning – use of acts alleged against one child as potential tendency evidence for acts against the other child – prosecution not seeking to rely on tendency – direction that each offence should be considered separately – no objection raised at trial about failure to give warning

EVIDENCE – appeal – ground alleged failure by defence counsel to call medical evidence at trial – test of miscarriage objective – counsel’s reasons for conduct of trial irrelevant – evidence from counsel inadmissible

The Queen v Butler (Rulings 1-10) [2013] VSC 688 (13 December 2013)

CRIMINAL LAW – Ruling No 1: Alleged dismembering, burning and disposal of body – Driving of deceased’s car to Queensland and disposing of same – Alleged lies in record of interview – Whether evidence of incriminating conduct – Foreshadowed ruling – Deferral of ruling until after accused arraigned – Jury Directions Act 2013 (Vic), ss 23 & 34 and Schedule – Criminal Procedure Act 2009 (Vic), s 210;

Ruling No 2: Manner of administering oaths or affirmations to jurors – Juries Act 2000 (Vic), s 42 & Schedule 3 – Evidence (Miscellaneous Provisions) Act 1958 (Vic), Part IV, Division 2 & Part 1 of Third Schedule – Evidence Act 2008 (Vic), Chapter 2, Part 2.1, Division 2 & Schedule 1 – Error in discharging first jury;

Ruling No 3: Release of transcript of trial – Suppression order – Supreme Court Act 1986 (Vic), ss 18 & 19;

Ruling No 4: Crown application to cross-examine own witness – Evidence Act 2008 (Vic), ss 38 & 60 – Application granted;

Ruling No 5: Closure of court for witness’s evidence of child sexual abuse;

Ruling No 6: Application to lead evidence of alleged lies as evidence of incriminating conduct – Application refused;

Ruling No 7: Application to withdraw evidence of key witness from jury – Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533; Dupas v The Queen (2012) 218 A Crim R 507; Evidence Act 2008 (Vic), s 137 – Application refused;

Ruling No 8: Submission of no case to answer – Submission rejected;

Ruling No 9: Application for Prasad invitation – Application granted – Verdict of not guilty returned;

Ruling No 10: Hearsay – Application to limit use of evidence – Evidence Act 2008 (Vic), ss 60, 65 & 136 – Unnecessary to determine application.