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  NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen  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
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.
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
CRIMINAL LAW – particular offences – offences against the person – homicide – murder – intention to kill or cause serious non-fatal injury – causation
CRIMINAL LAW – general matters – criminal liability and capacity – defence of mental illness
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  HCA 1; (1998) 192 CLR 159; Tofilau v The Queen  HCA 39; (2007) 231 CLR 396; Em v The Queen  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.
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.
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  NSWCCA 374, applied.
Aust Dig Criminal Law 
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).
CRIMINAL APPEAL – provision of drugs to a person who dies or falls ill – meaning of cause a person to take a drug – insufficient evidence to constitute tendency – unreasonable verdicts – appeal upheld – convictions quashed and acquittals ordered.
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
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.
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
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  NSWCCA 437; 158 A Crim R 504. The contents of a properly drafted notice for tendency evidence was considered in Gardiner v R  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.
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
CRIMINAL LAW – trial – murder – objection to evidence of a lawfully intercepted telephone conversation between accused whilst in custody and his father – whether capable of constituting an “admission” – whether evidence should be excluded
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.
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
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 – admission – compelled by s 173 of Road Transport (General) Act 2005 – compulsion not itself basis for exclusion of admission
TRAFFIC LAW – offences – evidence and procedure – admission required by s 173 of Road Transport (General) Act 2005 – compulsion not itself basis for exclusion of admission
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.
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
ADMISSIBILITY OF EVIDENCE
record of interview
admissibility of record of interview considered on a voir dire examination
where record of interview considered to have little probative value
weight to be given to record of interview matter for jury
Evidence Act 1995 s 85(1)(2)(3); s 90; s 135; s 137
Admissibility of evidence
whether official questioning
whether reasonable excuse for not recording
client legal privilige
where conversation between accused and solicitor overheard by police
whether conversation was confidential communication
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.
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
CRIMINAL LAW – murder – confessions and admissions – voluntariness – hostile witness – unreliability of witness – hearsay evidence – failure to call witness – reopening of Crown case – common purpose – comment of accused not giving evidence – separate trials – cross examination by co-accused – unsafe and unsatisfactory verdict – sentencing – life sentence – worst type of case.
Evidence Act 1995; ss 20; 38; 59; 60; 76 and 78; 84; 85; 90; 104; 135; 137; 138; 165
CRIMINAL LAW – arrest, illegality of – reasons for arrest to be given – arrest solely for investigative purposes – no intention to bring arrested person before a judicial officer – arrest illegal despite Pt 10A of the Crimes Act.
CRIMINAL LAW – confession – interview at police station – false statement by police officer – failure by police officer to disclose complainant’s exculpatory statement – admissibility of evidence – test for unfairness – s 138(1) of the Evidence Act.
CRIMINAL LAW – Conviction appeal – murder – whether the trial judge erred in admitting disputed evidence of admissions which were not electronically recorded but which were said to have been made by the appellant to a police officer – whether the directions given by the trial judge on the manner in which the jury may approach the evidence relating to finding of gunshot residue on the hands of both the appellant and one of the deceased were erroneous and inadequate – whether the verdicts of the jury are unreasonable having regard to the evidence
Conviction appeal – evidence – statement made to bank investigators – admissions – whether interview oppressive in terms of s84 Evidence Act 1995 – whether unfairness under s90 of Evidence Act established – application of discretion under s90.
Summing up – whether jury adequately directed as to circumstantial evidence – redirection not asked for at trial.
Criminal law – Evidence – Confessions and admissions – Admissibility of – Discretion to exclude – Covert and surveillance operation squad – Secretly tape recorded statements made by the respondent to undercover police – Such evidence was the primary evidence implicating the respondent – Previous refusal to answer police questions – Statements voluntarily made – Reliability – Unfairness discretion – Public policy discretion – Unduly prejudicial evidence – Right to silence – Eliciting confessions – Judges’ Rules – Duty to caution – Seriousness of the offence – Arson.
Evidence – Criminal trial – Exclusion of evidence – Reformulation of tests – Voluntariness test – Unfairness test – Public policy test – Unduly prejudicial test
Pavic v The Queen
Criminal law – Evidence – Confessions and admissions – Admissibility of – Discretion to exclude – Secretly tape recorded statements made by the appellant to friend as agent of police – Previous refusal to answer police questions – Statements voluntarily made – Reliability – Unfairness discretion – Public policy discretion – Unduly prejudicial evidence – Right to silence – Eliciting confessions – Duty to caution – Seriousness of the offence – Murder.
Evidence – Criminal trial – Exclusion of evidence – Reformulation of tests – Voluntariness test – Unfairness test – Public policy test – Unduly prejudicial test.
Criminal Law – Evidence – Confession – Questioning of accused in custody – Duty to inform of right to communicate with relative and lawyer before questioning commences – Commencement of questioning – Effect of non-compliance – Confession made where recording facilities available inadmissible unless recorded – Questioning at different places – Recorded confession – Earlier questioning not recorded – Whether confession admissible – Crimes Act 1958 (Vict.), ss. 464A(2), (3), 464C, 464H(1)(d), 464J(d).