Category Archives: s. 090

Haddara v The Queen [2014] VSCA 100 (27 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/100.html

CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.

EVIDENCE – Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a ‘code’ – Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused – Whether common law discretion survives the Evidence Act 2008 – Effect of s 56 of the Evidence Act 2008 – Sections 90, 136, 137 and 138 considered – Whether s 464J of the Crimes Act 1958 has been impliedly repealed – McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198, Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558, not followed.

Tasmania v Kefalianos [2014] TASSC 17 (2 April 2014)

http://www.austlii.edu.au/au/cases/tas/TASSC/2014/17.html

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Unfairness – Intoxication, tiredness, unavailability of solicitor.

Evidence Act 2001 (Tas), s90.

R v Ostojic (1978) 18 SASR 188; R v Helmhout [2000] NSWSC 208; (2000) 112 A Crim R 10, referred to.

Aust Dig Criminal Law [2752]

Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available – Witness refusing to give evidence – Representations by alleged co-offender in police interview.

Evidence Act 2001 (Tas), ss65(2)(d), 137.

R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182; J v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214; Festa v R (2001) 208 CLR 593, referred to.

Aust Dig Criminal Law [2802]

DPP v Hicks (Ruling No 1) [2014] VSC 43 (21 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/43.html

CRIMINAL LAW – Evidence – Murder and aggravated burglary – Admissibility of record of interview – Whether inadmissible pursuant to s 464H of Crimes Act 1958 (Vic) – Whether admissions obtained as result of impropriety – Evidence Act 2008 (Vic) s 138 – Whether unfairness to accused – Evidence Act 2008 (Vic) s 90.

R v Burton [2013] NSWCCA 335 (20 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/335.html

CRIMINAL LAW – Crown appeal – Criminal Appeal Act 1912, s 5F(3A) – accused charged with sexual intercourse without consent – Crimes Act 1900, s 61I – pre-trial evidentiary rulings – Criminal Procedure Act 1986, s 293(4)(a) – evidence of complainant’s sexual interest in a man other than accused – evidence irrelevant – whether tendency evidence – whether evidence of sexual experience or sexual activity – whether at or about time of commission of offence charged – evidence inadmissible
EVIDENCE – evidence of telephone conversation recorded pursuant to warrant – admissions – Evidence Act , s 90 – whether unfair to admit evidence – whether complainant acting as “agent of the State” – whether unfair derogation of accused’s right to exercise free choice to speak or be silent – whether conversation “functional equivalent of an interrogation” – “eliciting behaviour” – whether admissions made voluntarily
EVIDENCE – Evidence Act , s 137 – probative value of evidence – whether existence of alternative explanation relevant to assessment of probative value – facts in issue – Evidence Act s 137 contrasted with Evidence Act s 98 – whether credibility, reliability or weight of evidence relevant to assessment of probative value – Crown appeal allowed

R v FE [2013] NSWSC 1692 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1692.html

EVIDENCE – s 138 and s 139 Evidence Act 1995 – improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 – unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl

CRIMINAL LAW – right to silence- requirement for caution- provisions relating to juveniles

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/283.html

EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

R v Patricia Anne Gallagher [2013] NSWSC 1102 (19 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1102.html

RIMINAL LAW – Murder – special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 – where Crown relied upon circumstantial case – necessity to consider the entirety of the circumstantial case in determining whether the accused’s commission of the alleged offence was proved beyond reasonable doubt

EVIDENCE – admissions – exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair – where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment – where accused had been interviewed by the police on two occasions and had denied killing the deceased – where police subsequently implemented undercover operation – where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence – where police continued with the undercover operation in those circumstances – where accused initially repeatedly denied responsibility for the deceased’s death to undercover operative – where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased – whether the actions of the police in implementing and continuing the undercover operation were improper – whether the circumstances in which the admissions were made were otherwise improper – whether the evidence of the accused’s admissions should be excluded as having been improperly obtained – alternatively whether evidence of the accused’s admissions should be excluded on the basis of unfairness

EVIDENCE – admissions – where evidence that the accused had allegedly admitted to the killing of the deceased – where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made – whether the evidence of the admission should be excluded on the basis of unfairness.

EVIDENCE – lies – where Crown relied upon lies told by the accused as evidence of consciousness of guilt – whether the statements made by the accused were in fact lies – whether the lies were deliberate – whether the lies were evidence of consciousness of guilt

EVIDENCE – tendency evidence – whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively

Leith v Chief of Army [2013] ADFDAT 4 (20 August 2013)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2013/4.html

DEFENCE – convictions relating to theft of ammunitions and disobedience of lawful command – whether Judge Advocate erred in admitting evidence – consideration of “special circumstances” under s 101JA(3) of the Defence Force Discipline Act 1982 (“the DFDA”) – balancing the interests of justice – double jeopardy – whether the Judge Advocate erred in convicting the appellant of theft contrary to s 47C of the DFDA in light of conviction under s 34 of the Explosives Act 1999 (Qld) – consideration of “substantially the same” under s 144 of the DFDA

R v XY [2013] NSWCCA 121 (22 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/121.html

APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 – whether material difference between approaches

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence

EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)

EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)

STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts

R v Drummond (Ruling No 1) [2013] VSC 70 (26 February 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/70.html

CRIMINAL LAW – Evidence – initial police statement silent as to events subsequently admitted – whether admissible – credit – consciousness of guilt – covert recording – conversations in cells – undercover police operatives – purpose of evidence – animus – admissions of circumstances – statements towards co-accused – statements concerning witness – statements not confessional – low probative value – highly prejudicial – elicited in part by improper conduct – offers to assist in suborning witness – Evidence Act 2008 ss 90, 137, 138.

R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42 (1 March 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/42.html

CRIMINAL LAW – grant of stay – Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) – scope of s 25A of the Australian Crime Commission Act 2002 (Cth) – whether dissemination might prejudice a fair trial.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination of transcripts resulted in a fundamental defect in the trial process – exercise of discretion – whether a permanent stay justified.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination resulted in a fundamental defect in the trial process – inference as to use of transcripts by CDPP – whether material justified inference.

Evans v Powell [2012] NSWSC 1384 (19 November 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1384.html

APPEAL – appeal against Local Court decision against dismissal of five court attendance notices – appeal upheld – failure to give adequate reasons – whether his Honour erred in excluding disputed evidence – whether his Honour erred in dismissing 5 court attendance notices – residential centres – power of entry – construction of s 25 of the Youth and Community Services Act 1973 – exclusion of the disputed evidence – orders – costs

EVIDENCE – admissibility – discretionary exclusion of evidence

Collins v The Queen [2012] VSCA 163 (30 July 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/163.html

CRIMINAL LAW – Conviction – Two counts of murder – Admissibility of conversations covertly recorded in prison – Discretion to exclude evidence on basis of unfairness and/or public policy grounds – R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 referred to – Judge’s factual findings open – Evidence properly admitted – Appeal dismissed.

CRIMINAL LAW – Sentence – Two counts of murder – Life imprisonment with non-parole period of 32 years – Not manifestly excessive – Judge had proper regard to appellant’s age and principles relating to ‘crushing sentences’ – Offences correctly described as ‘worst category’ – Relevance of restrictive prison conditions – Appeal dismissed.

DPP v Haddara (Ruling No1) [2012] VSC 276 (5 June 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/276.html

CRIMINAL LAW – Evidence – Attempted murder – Tape recording of conversation at time of shooting – Comparison with recording of interview of accused by police – Whether recording of interview admissible – Accused suffering from intellectual impairment – Whether accused had adequate capacity to exercise right to silence – Evidence Act 2008 (Vict) s 90, 137.

Tasmania v Hudson and Whiting [2012] TASSC 31 (18 April 2012)

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/31.html

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Discretion to exclude confessional statements – Particular cases – Interviewed in breach of Criminal Law (Detention and Interrogation) Act 1995, s6.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s6.
Evidence Act 2001 (Tas), s90.
R v Em [2003] NSWCCA 374, applied.
Aust Dig Criminal Law [2688]

JB v Regina [2012] NSWCCA 12 (17 February 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/12.html

CRIMINAL LAW – appeal – conviction – admissions – s 90 Evidence Ac 1995 – whether the trial judge should have admitted admissions made by an accused to a community support person.

CRIMINAL LAW – appeal – conviction – misdirection in presentation of defence case to jury – whether self-defence should have been put to the jury.

CRIMINAL LAW – appeal – sentence – wrong statutory ratio of parole to non-parole period – s 44 Crimes (Sentencing Procedure) Act 1999.

CRIMINAL LAW – appeal – sentence – whether the sentence was manifestly excessive – whether trial judge considered all mitigating factors – s 21A(3) Crimes (Sentencing Procedure) Act 1999.

Evidence Act 1995 (NSW), ss 90, 118, 126, 127

W K v The Queen [2011] VSCA 345 (30 November 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/345.html

CRIMINAL LAW – Trial – Attempt to procure act of penetration by threats – Interlocutory appeal – Evidence – Admissibility – Pretext conversation – Complainant recorded conversation with accused at request of police – Use of recording device provided by police – Whether recording unlawful – Whether device ‘used’ by complainant or by requesting officer – Whether evidence should have been excluded in exercise of discretion – Recording not unlawful – No error in decision to admit evidence – Leave to appeal refused – Crimes Act 1958 (Vic) s 57(1) – Surveillance Devices Act 1999 (Vic) ss 6, 11; Evidence Act 2008 (Vic) ss 90, 138; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 13(a), 32(1).

WORDS AND PHRASES – ‘Use’, ‘install’, ‘maintain’.

F M J v The Queen [2011] VSCA 308 (11 October 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/308.html

CRIMINAL LAW – Interlocutory appeal – Admissibility of recording made by complainant’s mother containing admissions by accused – Judge refused to certify interlocutory decision for appeal – Crown case not dependent upon recording alone – Criminal Procedure Act 2009 s 295(3)

CRIMINAL LAW – Evidence – Application to exclude evidence of recording pursuant to Evidence Act 2008 ss 85, 90 and 137 – Judge misstated onus of proof with regard to s 85 – Error inconsequential in particular circumstances of case – Other grounds untenable – Leave to appeal refused

Regina v Lawrence Holt [2001] NSWSC 232 (30 March 2001)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/232.html

8 The foregoing general positions of, respectively, the Crown and the accused having been established, application was made for a series of hearings on the voir dire to the end of testing the admissibility in the Crown case at trial of various pieces of evidence. Voir dire hearings were granted accordingly, and all of them were dealt with by way of documentary evidence. In all, sixteen separate such hearings were conducted. Eleven of those hearings concerned evidence which the Crown seeks to have admitted as tendency evidence; a further four hearings concerned hearsay evidence which the Crown seeks to have admitted as relationship evidence; and one hearing concerned admissions made by the accused to investigating police.

R v Weaven (Ruling No 1) [2011] VSC 442 (7 September 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/442.html

CRIMINAL LAW – Murder – Admissibility of confession made to police covertly engaged in ‘scenario’ investigation – Whether admission of ‘scenario evidence’ unfairly prejudicial to accused – Whether probative value outweighed by danger of unfair prejudice – Whether evidence improperly obtained – Evidence admitted – Evidence Act 2008 ss 90, 135, 137, 138

Bryant v R [2011] NSWCCA 26 (2 March 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/26.html

CRIMINAL LAW – appeal against conviction – whether error in not ordering separate trials – whether error in admitting evidence of offences not on indictment – whether error in leaving all counts for the jury to determine – whether miscarriage resulting from submissions by prosecutor or errors of fact by trial judge
EVIDENCE – whether evidence in support of some counts and offences not on indictment admissible as tendency or coincidence evidence – whether evidence of confessional statements to custody manager admissible under s 281 of Criminal Procedure Act 1986 – whether in the course of “official questioning” – whether “in connection with the investigation” of an offence

49 The appellant complains first that the Judge erred in permitting a joint trial of the counts on the indictment and the three other offences and secondly that the prosecutor in the course of the application made errors that may have misled the Judge.
50 Something should be said about the manner in which the application proceeded. As the appellant notes in his submissions, no tendency or coincidence notice was filed. This was in breach of both ss 97 and 98 of the Evidence Act . This is an unacceptable practice even though no point was taken by defence counsel. The contents of a properly drafted notice in respect of coincidence evidence was considered in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504. The contents of a properly drafted notice for tendency evidence was considered in Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233. The importance of explicitly identifying the related events for the purpose of s 98 and the asserted tendency for the purpose of s 97 should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence.
51 The Judge should have refused to proceed until proper notices were given notwithstanding the attitude take by defence counsel. Here the whole of the evidence was simply placed before the Judge on the basis it was tendency, coincidence or circumstantial evidence without any attempt to place it into its component parts or identify what evidence was admissible on what basis.

116 In my opinion it was clearly open to the Judge to have admitted the evidence. It was relevant as a response to being shown the bags from Belconnen McDonald’s. Whether or not it was an admission to that robbery was a question of fact for the jury and they were in a good position to make that decision because it was video recorded. It was not misleading because the jury knew all the surrounding facts upon which they could base their decision. It was not crucial to the Crown case, which was really based upon coincidence or tendency evidence, but it supported the contention that the appellant committed the Belconnen robberies. Section 137 of the Evidence Act had no role to play because, if the jury thought that the appellant was admitting to the Belconnen robbery, the only prejudice was that the admission supported the Crown case. On the other hand, if the jury doubted that he was admitting to have committed the Belconnen robbery and was confused, tired or for some other reason was referring to the Mittagong robbery, they would have disregarded it as having no evidentiary value.
117 There was no other reason to reject the evidence. It was not illegally obtained and, if it was an admission, then there was no reason to doubt its reliability. Section 90 had no role to play because the admission of the evidence did not render the appellant’s trial unfair.
118 In his evidence the appellant explained that he was mistaken and thought he was referring to the Mittagong robbery. That was the position taken by his counsel in his closing address.
119 In my opinion the evidence was rightly admitted.

Doklu v R [2010] NSWCCA 309 (16 December 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/309.html

CRIMINAL LAW – conviction appeal – whether evidence of admissions by appellant that he attempted to kill his wife wrongly admitted – Criminal Procedure Act s 281 – whether at the time when an admission was made the appellant was or could reasonably have been suspected by police officers of having committed an offence – whether reasonable excuse that tape recording not made – Evidence Act s 85 – whether admission made in circumstances where truth of admission unlikely to be adversely affected – Evidence Act s 90 – whether trial judge exercised discretion wrongly by admitting evidence – whether any relevant unfairness – relevance of appellant’s physical condition – whether appellant capable of understanding questioning
CRIMINAL LAW – conviction appeal – Jury Act – majority verdict – whether trial judge’s direction that majority verdict possible in some circumstances undermined effect of Black v R direction concerning need for jury to try its utmost to reach unanimous verdict – advisability of mentioning possibility of majority verdict before necessary to do so

DPP v Farquharson (No 2) (Ruling No 3) [2010] VSC 177 (30 April 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/177.html

CRIMINAL LAW – Evidence – Prejudicial and probative value –Application to exclude portions of covertly recorded conversation – Application pursuant to s 137 of the Evidence Act 2008 – Evidence allowed at first trial – Court of Appeal commentary on the evidence – One sentence excluded, remaining conversation to remain intact.

R v Armstrong [2010] NSWSC 483 (21 May 2010)

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/483.html

Criminal law – trial – murder – objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made – no recording made of conversation – whether “reasonable excuse” established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation – whether accused “refused” to have questioning electronically recorded – consideration of ss 85, 90 and 138 of the Evidence Act 1995

R v Jason Robert Naa [2009] NSWSC 851 (26 August 2009)

 http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/851.html

Criminal Law – Evidence – Admissibility – Admissibility of statements made by the accused during police siege – where statements made during course of negotiations to have the accused disarm – whether statements “made in course of official questioning” within meaning of s 281 of Criminal Procedure Act 1986 – whether the accused should have been cautioned under s 139 of Evidence Act – if so, whether admissions should be admitted under s 138 of Evidence Act – Discretion to exclude admissions under s 90 of Evidence Act – whether admission of evidence would render trial unfair.

Evidence Act 1995 – ss 84, 85, 90, 138, 139

Louizos v R, R v Louizos [2009] NSWCCA 71 (20 March 2009)

[2009] NSWCCA 71

Criminal Law – Evidence – telephone intercepts – police cease monitoring calls for period – whether further intercepts unlawful – whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure – failure to give Jones v Dunkel direction against Crown – whether miscarriage of justice – Verdict – evidence of accomplice – whether verdict unreasonable. Appeal – Certificates by trial judge under s 5(1)(b) of Crown Appeal Act – purpose of granting certificate. Sentence – Crown Appeal – Solicit to murder – failure to making finding as to objective seriousness of offence where standard non-parole period – error in finding motive mitigating – sentence manifestly inadequate.

Evidence Act – ss 38, 55, 90, 137, 138, 165

Eastman v The Honourable Justice Besanko [2009] ACTSC 10 (18 February 2009)

[2009] ACTSC 10

JUDICIAL REVIEW – administrative decision made under an enactment – whether refusal to issue an order for inquiry into past conviction affects legal rights – there was no right to the issue of an order both before and after the decision was made – Wednesbury unreasonableness – whether decision is based on findings or inferences wholly unsupported by some probative material or logical grounds

HELD – the decision to refuse to order an inquiry into the conviction of the plaintiff was not a decision made under an enactment and therefore not subject to judicial review

Evidence Act 1995 (Cth) ss 84, 90, 130

R v Moffatt [2000] NSWCCA 174 (23 May 2000)

[2000] NSWCCA 174

CRIMINAL LAW – appeals – appeal against conviction – murder – trial by judge alone – role of Court of Appeal – causation – whether death of deceased caused by act of appellant – where more than one possible cause of death – where constitutional defect – admissibility of admissions – confabulation – reliability of admissions.

Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3)

R v JGW [1999] NSWCCA 116 (23 June 1999)

[1999] NSWCCA 116

CRIMINAL LAW – offences – homosexual intercourse – attempted homosexual intercourse – indecent assault;

CRIMINAL LAW – directions to jury – directions as to delay in complaint – directions as to unreliability of complaint evidence;

CRIMINAL LAW – directions to jury – directions on lies;

CRIMINAL LAW – verdicts – “unsafe and unsatisfactory”;

CRIMINAL LAW – sentencing – principle of totality;

CRIMINAL PRACTICE AND PROCEDURE – amendment of indictment – discretion of judge;

EVIDENCE – admissibility – tender of ERISP video interview;

EVIDENCE – credibility and weight

Evidence Act 1995 ss 55, 56, 90, 102, 135, 136, 137

R v Phan [2001] NSWCCA 29 (4 June 2001)

[2001] NSWCCA 29

CRIMINAL LAW – appeals – appeal against conviction – murder – directions to jury – discretion to exclude evidence – whether summing up unbalanced – whether necessary to give instructions on alternative verdict of manslaughter – criminal responsibility – distinction between common purpose and joint criminal enterprise – whether principal in second degree – whether mere presence enough to be guilty of murder – miscarriage of justice

Evidence Act 1995 ss 90, 138