Category Archives: s. 065

Lazaris v R [2014] NSWCCA 163 (18 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/163.html

CRIMINAL LAW – Offence of supplying prohibited drug – Trial before judge alone – Where Crown relied on circumstantial case – Where trial judge satisfied beyond reasonable doubt of applicant’s guilt – Whether verdicts unreasonable or could not be supported by the evidence

EVIDENCE – Where hearsay representations admitted without objection – Where trial judge relied upon representations as evidence of the truth – Whether open to the trial judge to do so – Whether evidence admissible as an exception to the hearsay rule in any event

Rich v The Queen [2014] VSCA 126 (20 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/126.html

CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, applied; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259; R v Nguyen [1998] 4 VR 394, referred to.

JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher [1998] 2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.

EVIDENCE – Hearsay – Whether evidence of co-offenders’ out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R [1961] HCA 22; (1961) 104 CLR 1; Ahern v R [1988] HCA 39; (1988) 165 CLR 87, applied; R v Christie [1914] AC 545, referred to.

EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn [2008] VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure [1993] VicRp 87; [1993] 2 VR 497; Jenkins v R [2004] HCA 57; (2004) 79 ALJR 252, referred to.

MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas [2007] VSCA 304; (2007) 18 VR 205; Brown v R [2006] NSWCCA 395, applied; R v Vandine [1970] 1 NSWR 252; Johns v R [1980] HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R [2003] HCA 64; (2003) 219 CLR 1; Dupas v R [2010] HCA 20; (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.

CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld) [2004] HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.

TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R [2013] HCA 42; (2013) 303 ALR 42, applied; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, referred to.

AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland [1974] VicRp 100; [1974] VR 849; Crofts v R [1996] HCA 22; (1996) 186 CLR 427, applied.

DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270, referred to.

VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.

SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R [1998] HCA 57; (1998) 194 CLR 610, applied; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, referred to.

Applications for leave to appeal against conviction and sentence dismissed.

R v Bryce (No 1) [2014] NSWSC 495 (28 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/495.html

EVIDENCE – statements made by deceased about previous assaults upon her – relationship evidence – hearsay – s 65(2)(b) of the Evidence Act – whether representations made “shortly after” asserted fact occurred.

EVIDENCE – photographs and observations of deceased’s injuries – whether probative value outweighed by prejudicial effect – Evidence Act s 137.

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

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]

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

http://www.austlii.edu.au/au/cases/vic/VSC/2013/688.html

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.

Potter v The Queen [2013] VSCA 291 (18 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/291.html

CRIMINAL LAW – Appeal – Conviction – Murder – Co-offender pleaded guilty – Multiple gunshots to victim’s head – Applicant shot and stabbed victim – Whether open to jury to conclude that applicant aided and abetted or acted in concert with co-offender – Whether evidence of victim’s emergency calls admissible to prove applicant’s participation – Consciousness of guilt – Whether evidence of applicant’s lies admissible – Leave to appeal refused – R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 applied – Evidence Act 2008 (Vic) ss 65(2), 137, 192.

R v Grogan (No 3) [2013] NSWSC 1193 (27 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1193.html

EVIDENCE – criminal – maker unavailable hearsay – Evidence Act s 65 – evidence from deceased of threats made by accused – substantial gap in time between treats and alleged assault – probative value outweighed by danger of unfair prejudice – evidence inadmissible
EVIDENCE – criminal – maker unavailable hearsay – Evidence Act s 65 – evidence of animosity between deceased and accused – evidence of items in disarray at scene of alleged assault – both items of evidence admissible

R v Ryan [2013] NTSC 54 (23 August 2013)

http://www.austlii.edu.au/au/cases/nt/NTSC/2013/54.html

EVIDENCE—Admissibility—Statements of deceased witness identifying accused—Statements made four and five days following incident—Whether made in circumstances that make it highly probable that the representations are reliable—Statements admitted

EVIDENCE—Admissibility—Statements of deceased witness identifying accused—Statements made four and five days following incident—Whether statements made “shortly after” the incident—Held that the ordinary usage of the phrase “shortly after” not inconsistent with time elapsed—Held that identification of own cousin likely to be clear after five days—Statements admitted

Russell v The Queen [2013] VSCA 155 (21 June 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/155.html

CRIMINAL LAW – Application for leave to appeal against conviction – One charge of buggery with a child under 14 years and five charges of buggery – Offences committed over 40 years ago – Whether trial judge erred in directing the jury they could use hearsay evidence adverse to the applicant adduced in cross examination of the informant – Whether trial miscarried because of failure correctly to direct the jury about the use to be made of a false Crown theory of defence tactics never adopted by the applicant – Whether verdicts unsafe – Leave to appeal granted and appeal allowed.

Natasha Youkhana v R [2013] NSWCCA 85 (26 April 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/85.html

CRIMINAL LAW – EVIDENCE – where applicant pleaded guilty to dealing with proceeds of crime and related offences – where facts asserted by the Crown on sentence were disputed – where Crown sought to prove disputed facts by relying upon representations of an unavailable co-offender pursuant to s. 65(2)(b) and s. 65(2)(d) of the Evidence Act – where sentencing judge admitted the representations – whether sentencing judge erred in concluding that the representations were made in circumstances that made it unlikely that they were a fabrication, or that made it likely that they were reliable – whether representations should have been excluded – whether open to the sentencing judge to conclude that he was satisfied beyond reasonable doubt of the disputed facts – no error in the decision of the sentencing judge to admit the representations – no error in the sentencing judge’s conclusion that he was satisfied, o n the basis of the representations, of the disputed facts beyond reasonable doubt

SENTENCE – parity principles – whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender for a similar offence – where sentencing judge properly considered principles of totality – where the applicant charged with offences over and above those with which the co-offender had been charged – where the overall criminality of the applicant was substantially in excess of that of the co-offender – no error demonstrated – no justifiable sense of grievance made out – appeal dismissed

R v Sarbandi [2012] ACTSC 180 (7 December 2012)

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/180.html

EVIDENCE – Evidentiary matters relating to witnesses – Admissibility – First hand hearsay – Evidence Act 2011 (ACT) s 65 – Whether “all reasonable steps” taken to secure witness attendance – Where witness in Saudi Arabia – Where witness not offered reimbursement for cost of attending – Where no application to take evidence by telephone link – Section 65 threshold not satisfied.

Easwaralingam v Director of Public Prosecutions [2011] HCASL 99 (7 June 2011)

http://www.austlii.edu.au/au/cases/cth/HCASL/2011/99.html

The applicant was summoned to appear in the Magistrates’ Court of Victoria on charges of unlawful assault, using indecent language in a public place, stalking in a way that could reasonably be expected to arouse apprehension or fear and behaving in an offensive manner in a public place. All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution. On 22 February 2010, two days before the matter was due to be heard as a contested hearing, the informant became aware that Ms Venner would not be available to attend the hearing as she had been admitted to hospital to undergo emergency surgery. On 23 February 2010, counsel for the applicant was notified of Ms Venner’s unavailability for the following day and of the informant’s intention to seek an adjournment or, alternatively, to make an application to rely upon Ms Venner’s statement to police as an exception to the hearsay rule under s 65 of the Evidence Act 2008 (Vic) (“the Act”). Written notice of the respondent’s intention to adduce hearsay evidence under s 65 of the Act was dated 22 February 2010 and served on the applicant’s instructing solicitor on 24 February 2010.
On 24 February 2010, Magistrate Fleming refused the respondent’s application for an adjournment. The Magistrate refused to admit Ms Venner’s statement into evidence and dismissed the three remaining charges. Pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic), the respondent appealed to the Supreme Court of Victoria in respect of the Magistrate’s refusal to admit the statement into evidence under s 65 of the Act. By originating motion (heard at the same time as the appeal) the respondent sought judicial review of the decision not to grant the adjournment. On 1 October 2010, Pagone J allowed the appeal, held that the Magistrate erred in law in not granting the adjournment and remitted the matter to the Magistrates’ Court. His Honour found that the Magistrate had failed to apply the definition of “not available to give evidence” under Pt 2, cl 4(1)(g) of the Act’s Dictionary and had erroneously concluded that the respondent had not, pursuant to s 67 of the Act, given reasonable notice of its intention to adduce the evidence and that the notice was otherwise deficient.
The applicant sought leave to appeal Pagone J’s decision to the Court of Appeal. The Court of Appeal (Buchanan and Tate JJA) granted leave but dismissed the appeal.
It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave to appeal. There is no reason to doubt the correctness of the actual orders made by the Court of Appeal.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

Rossi v The Queen [2012] VSCA 228 (21 September 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/228.html

CRIMINAL LAW – Intentionally causing serious injury – Flight from the scene of the crime – Consciousness of guilt – Failure of trial judge to tell a jury that there might be reasons for flight apart from consciousness of guilt – Failure to take all reasonable steps to find a witness and secure her attendance and accordingly it was not established that the witness was not available to give evidence pursuant to s 65 of the Evidence Act 2008 (Vic) – No substantial miscarriage of justice.

Azizi v The Queen [2012] VSCA 205 (30 August 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/205.html

CRIMINAL LAW – Appeal – Conviction – Murder – Applicant found guilty of murdering his wife – Evidence adduced at trial of representations made by deceased to effect that applicant had physically and emotionally abused her – Crown sought to use evidence as tendency evidence – Whether evidence fell within exceptions to hearsay rule provided for in ss 65(2)(b) and (c) of Evidence Act 2008 – Whether evidence could be used as tendency evidence – Whether Crown’s failure to call as witnesses interpreters who interpreted conversations in which representations were said to have been made by deceased gave rise to miscarriage of justice – Whether directions given by trial judge tended to reverse onus of proof – Appeal allowed – Evidence Act 2008 ss 65, 66A, 67(1), 97(1), 101(2), 135 and 137 – Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 – R v Mankotia [1998] NSWSC 295 – Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 – R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603 – Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB [2010] 29 VR 110 – R v LRG (2006) 16 VR 89 – Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 – Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

Baker v The Queen [2012] HCA 27 (15 August 2012)

http://www.austlii.edu.au/au/cases/cth/HCA/2012/27.html

Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co-accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co-accused made certain admissions in police interview and to witnesses (“out-of-court confessional statements”) – Consideration of Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.

Words and phrases – “admissions”, “against penal interest”, “hearsay rule”, “out-of-court confessional statements”.

Derbas v R [2012] NSWCCA 14 (21 February 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/14.html

CRIMINAL LAW – leave to appeal against interlocutory order – public interest immunity – application for production of a document disclosing confidential police informer – balancing exercise – common law applied – whether disclosure of identity of informer would assist accused in defence – relevance of potential consequences to informer if identity disclosed – claim to immunity from production upheld

R v AB [2011] ACTSC 204 (16 December 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/204.html

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

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 Bauer [2011] ACTSC 127 (16 August 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/127.html

CRIMINAL LAW – trial by judge alone – assault – damage to property – discrepancies between evidence of complainants – identification evidence not reliable to establish accused’s involvement – prosecution evidence did not exclude alibi raised – reasonable doubt as to accused’s presence at the relevant occasions and times of the alleged incident – accused not guilty on all charges.

Evidence Act 1995 (Cth), Pt 3.2, ss 65(1), 65(3), 116(1)(a), 116(1) (b), 165(1) (b), 190

Easwaralingam v Director of Public Prosecutions [2011] HCASL 99 (7 June 2011)

http://www.austlii.edu.au/au/cases/cth/HCASL/2011/99.html

The applicant was summoned to appear in the Magistrates’ Court of Victoria on charges of unlawful assault, using indecent language in a public place, stalking in a way that could reasonably be expected to arouse apprehension or fear and behaving in an offensive manner in a public place. All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution. On 22 February 2010, two days before the matter was due to be heard as a contested hearing, the informant became aware that Ms Venner would not be available to attend the hearing as she had been admitted to hospital to undergo emergency surgery. On 23 February 2010, counsel for the applicant was notified of Ms Venner’s unavailability for the following day and of the informant’s intention to seek an adjournment or, alternatively, to make an application to rely upon Ms Venner’s statement to police as an exception to the hearsay rule under s 65 of the Evidence Act 2008 (Vic) (“the Act”). Written notice of the respondent’s intention to adduce hearsay evidence under s 65 of the Act was dated 22 February 2010 and served on the applicant’s instructing solicitor on 24 February 2010.
On 24 February 2010, Magistrate Fleming refused the respondent’s application for an adjournment. The Magistrate refused to admit Ms Venner’s statement into evidence and dismissed the three remaining charges. Pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic), the respondent appealed to the Supreme Court of Victoria in respect of the Magistrate’s refusal to admit the statement into evidence under s 65 of the Act. By originating motion (heard at the same time as the appeal) the respondent sought judicial review of the decision not to grant the adjournment. On 1 October 2010, Pagone J allowed the appeal, held that the Magistrate erred in law in not granting the adjournment and remitted the matter to the Magistrates’ Court. His Honour found that the Magistrate had failed to apply the definition of “not available to give evidence” under Pt 2, cl 4(1)(g) of the Act’s Dictionary and had erroneously concluded that the respondent had not, pursuant to s 67 of the Act, given reasonable notice of its intention to adduce the evidence and that the notice was otherwise deficient.
The applicant sought leave to appeal Pagone J’s decision to the Court of Appeal. The Court of Appeal (Buchanan and Tate JJA) granted leave but dismissed the appeal.
It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave to appeal. There is no reason to doubt the correctness of the actual orders made by the Court of Appeal.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
7 June 201

ZL v The Queen [2010] VSCA 345 (14 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/345.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Whether exclusion of evidence would substantially weaken Crown case – CGL v DPP (No 2) (2010) 24 VR 482, considered – Criminal Procedure Act 2009, s 295(3)(a).

CRIMINAL LAW – Evidence – Hearsay – Previous representation – Witness statement – Whether person who made statement not available to give evidence – Whether all reasonable steps taken to find person – Evidence Act 2008 , s 65(2)(b), Dictionary, clause 4(1)(e).

Z L v The Queen [2010] VSCA 345 (14 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/345.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Whether exclusion of evidence would substantially weaken Crown case – CGL v DPP (No 2) (2010) 24 VR 482, considered – Criminal Procedure Act 2009, s 295(3)(a).

CRIMINAL LAW – Evidence – Hearsay – Previous representation – Witness statement – Whether person who made statement not available to give evidence – Whether all reasonable steps taken to find person – Evidence Act 2008, s 65(2)(b), Dictionary, clause 4(1)(e).

CVETKOVIC, Dragan v R [2010] NSWCCA 329 (21 December 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/329.html

CRIMINAL LAW – Appeal against conviction and sentence – grounds of appeal – (1) Conviction unreasonable or unsupported by evidence – (2) Wrong interlocutory decisions – (3) Substantial miscarriage of justice – Appeal dismissed –
CRIMINAL LAW – Evidence – Issues raised on appeal – Evidence sought to be admitted by the appellant as character and tendency evidence was determined by the trial judge to be evidence going to issues of credit – trial judge decision to admit certain evidence put forward by the prosecution as relationship evidence rather than tendency evidence – whether trial judge ought to have made a section 136 ( Evidence Act 1995) ruling in relation to evidence about the credibility of the victim – whether trial judge ought to have imposed a section 136 ( Evidence Act 1995) limitation on sexual experience evidence – application for leave to recall witnesses for further cross-examination –
CRIMINAL LAW – Particular offences – offences against the person – acts intended to cause or causing danger to life or bodily harm or serious injury – wounding with intent to murder –
CRIMINAL LAW – Criminal liability and capacity – defence matters – non-insane automatism – interaction of onus of proof and presumptions of mental capacity and that an action is willed – significance of psychiatric evidence in displacing presumptions [86]-[93] –
APPEAL – test for appellate reversal of discretionary decision of practice and procedure no different to test for any other discretionary decision, but satisfaction of the test often harder as a matter of fact [217] –
EVIDENCE – tendency evidence – proper procedure for deciding admissibility of tendency evidence [224] – difference between tendency evidence and relationship or context evidence –
CRIMINAL LAW – procedure – whether a “prescribed sexual offence” within Criminal Procedure Act 1986 must involve activities that themselves have a sexual component [265]-[277] – effect of a “prescribed sexual offence” being tried with other charges [278] –
STATUTES – Acts of Parliament – interpretation – role of definition section – meaning of “except in so far as the context or subject-matter requires” [272]-[276] –
EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – reasons for judgment in other cases – whether admissible under s65(3) [295]-[300] – whether statements in them are first-hand hearsay [299]-[300] – whether admissible under s65(8)(b) [301]-[303] – whether admissible as a public document under s157 [304]-[314] – whether “judgment” in s157 includes reasons for judgment [306] –
EVIDENCE – admissibility under the Evidence Act 1995 – hearsay – first-hand hearsay – onus of proof of unavailability of the person who made the previous representation [341] – form in which evidence of the previous representation can be given by the person who saw, heard or otherwise perceived the representation being made [343] –
EVIDENCE – admissibility under the Evidence Act 1995 – what constitutes “evidence of reputation” under s73 [353]-[354]

Easwaralingam v DPP & Anor [2010] VSCA 353 (20 December 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/353.html

PRACTICE AND PROCEDURE – Discretion to admit witness statement into evidence when a person is not available to give evidence – Absent witness recovering from emergency surgery – Magistrate refused application to admit witness statement – Appeal against that refusal allowed by a single judge of the Supreme Court – Appeal to the Court of Appeal – Appeal dismissed – Matter remitted to Magistrates’ Court – Evidence Act 2008 , ss 65, 67.

ADMINISTRATIVE LAW – Judicial Review – Refusal of Magistrate to adjourn proceedings – Error of law on the face of the record – What constitutes the record – Proceeding for judicial review heard concurrently with appeal – Need to distinguish between the two proceedings and the material on which they could be decided – Need to have regard to the evidence which was then before the Magistrate when the application for adjournment was decided – Appeal against orders for judicial review allowed.

WORDS AND PHRASES – “Record” – “Not available”

R v Rossi (Ruling No 1) [2010] VSC 459 (13 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/459.html

CRIMINAL LAW – Evidence – Notice of Hearsay Evidence – Section 65 & 67 of the Evidence Act – Dictionary Clause 4(2)(e) & (f) – “All reasonable steps” – Whether taken – Witness threatened – Witness avoiding subpoena – Subpoena not served – Evidence of police in trying locate witness – Charter of Human Rights and Responsibilities Act 2006 – Section 25(2)(g) – Evidence Act s 137 – Risk of unfair prejudice – Previous representations admitted.

R v Lubik (Ruling No 1) [2010] VSC 465 (15 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/465.html

CRIMINAL LAW – evidence – murder trial – preliminary hearing on admission of hearsay and relationship evidence – accused charged with murdering his wife – accused claims wife killed by accident or in self defence – whether relationship evidence admissible of aggressive and hostile conduct against the deceased by the accused over two and half years before her death – whether hearsay evidence should be admitted under s 65(2) of the Evidence Act 2008 – ruling allowing admission of relationship and hearsay evidence

Priest v Deputy State Coroner & Anor [2010] VSC 449 (7 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/449.html

Judicial review – Coroners Act 2008 – challenge to two rulings – first ruling alleged failure to have regard to propensity evidence – no jurisdictional error – Coroner not bound to have regard to the consideration – second ruling – s 57 privilege in respect of self incrimination – no invalidity due to failure to comply with s 57(3) – Project Blue Sky [1998] HCA 28; (1998) 194 CLR 355 – alleged failure to have regard to relevant consideration and having regard to irrelevant considerations – no jurisdictional error – certiorari discretionary – decline to exercise the discretion having regard to the conduct of the proceeding before the Coroner and the utility of granting the relief sought – application for relief dismissed.

20 Section 62 provides that a coroner holding an inquest is not bound by the rules of evidence and “may be informed and conduct an inquest in any manner that the coroner reasonably thinks fit”. Parts II, IIA and III of the Evidence (Miscellaneous Provisions) Act 1958 and (except as otherwise provided in the Act) the Evidence Act 2008 do not apply to the Coroners Court.[16]
21 The Act does not affect the law or practice relating to legal professional privilege.[17]
22 Section 64 provides that the coroner holding the inquest determines:

(a) the witnesses to be called; and
(b) the relevant issues for the purposes of the inquest.

23 Oral evidence provided at an inquest must be recorded in accordance with s 131 of the Evidence (Miscellaneous Provisions) Act 1958. Except as provided in ss 65(3), 65(4) and 65(6) of the Evidence Act 2008, a record of evidence provided to the Coroners Court is not evidence in any court of any fact asserted in it.[18] Subsections 65(3), 65(4) and 65(6) of the Evidence Act 2008 deal with the circumstances in which evidence of a previous representation can be admitted in a later civil or criminal proceeding.

DPP v Easwaralingam & Anor [2010] VSC 437 (1 October 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/437.html

PRACTICE AND PROCEDURE – Judicial review and appeal on a question of law – Discretion to grant an adjournment – Discretion to admit witness statement into evidence when a person is not available to give evidence – Road rage incident – Evidence Act 2008 (Vic) ss 65, 67 – Whether to remit the matter to a differently constituted court.

DPP v Nicholls [2010] VSC 397 (6 September 2010)

http://www.austlii.edu.au/au/cases/vic/VSC/2010/397.html

APPEAL from Magistrates’ Court on a question of law – Criminal law – Evidence – Meaning of “not available to give evidence” in s 65 of the Evidence Act 2008 – Evidence Act 2008, ss 18, 65, 67, 135, 137 and clause 4 of Part 2 of the Dictionary – Criminal Procedure Act 2009, s 272(1).

DPP v B B; DPP v Q N [2010] VSCA 211 (25 August 2010)

http://www.austlii.edu.au/au/cases/vic/VSCA/2010/211.html

CRIMINAL LAW – Appeal – Crown appeal – Interlocutory appeal – Evidence – Hearsay – Admissibility of representations made by witness in evidence at committal concerning facts in issue – Evidence Act 2008 , ss 59, 65(3), 65(6), 137, 165 – Evidence Act 1958, s 55AB – Justices Act 1928, s 203 – Indictable Offences Act 1848 (U.K.).

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.

R v Morton [2008] NSWCCA 196

CRIMINAL LAW — inadmissibility of a witness statement taken through an interpreter.
ADMISSIBILITY OF EVIDENCE UNDER S 65 EVIDENCE ACT WHEN THE MAKER IS NOT AVAILABLE — unavailability of persons.

(CTH) Evidence Act 1995 – s 65, 67