Category Archives: s. 065

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

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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

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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

Regina v Lodhi [2006] NSWSC 648 (11 May 2006)

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[2006] NSWSC 648

Criminal law; admissions by accused: s 81 Evidence Act (NSW) 1995; exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act); availability of witness; evidence admissible for non-hearsay purpose; s 136 Evidence Act – Limitation order

DECISION:
I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name “Faheem”.

R v Peter Li [2003] NSWCCA 386 (19 December 2003)

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[2003] NSWCCA 386

Criminal Law – Summing up – directions- corroboration – onus of proof – reasonable doubt – lies – need for scrutiny of complainant’s evidence

Criminal Law – Crown Prosecutor’s final address – demeanour of complainant – tears – reference to

Evidence – second trial after jury in first trial discharged – witness overseas – whether “unavailable” – whether witness’ evidence in previous trial admissible – depositions

Words and phrases – depositions

Evidence Act 1995 ss 65, 67, 192, dictionary

R v El-Azzi [2004] NSWCCA 455 (16 December 2004)

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[2004] NSWCCA 455

appeal against convictions

knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine

conspiracy to manufacture not less than large commercial quantity of methylamphetamine

proper characterisation of the object of the conspiracy

impossibility of achievement by use of materials available

whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered

whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine

whether separate trial of first count ought to have been ordered

admissibility of coincidence evidence

directions concerning evidence admissible on individual counts

the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts

directions concerning circumstantial evidence

evidence of deceased witness read

indemnified witnesses

cross-examination of appellant on matters relevant only to credibility

evidence of prior criminal conviction

evidence of disciplinary proceedings

discretion to grant leave to cross-examine appellant on credibility

unfairness

“substantial probative value”

unreasonable verdicts

corroboration

corroboration of evidence of accomplices

whether one accomplice can corroborate the evidence of another

directions concerning unreliability of witnesses

jury access to transcripts of counsels’ addresses and summing up

leave to appeal against sentence

appeal dismissed

leave granted to appeal against sentence

appeal dismissed

Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192

R v Suteski [2002] NSWCCA 509 (20 December 2002)

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[2002] NSWCCA 509

CRIMINAL LAW – Appeal against conviction and sentence for murder – plea of not guilty – Crown appeal against leniency of sentence – Form 1 offences – obtain benefit by deception- exception to hearsay – ERISP evidence – admissibility of out of court statement where maker unavailable – statement against interest.

Evidence Act (NSW) 1995 ss 59 62, 65, 67, 135, 137, 165, 192

Vickers v R [2006] NSWCCA 60 (31 March 2006)

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[2006] NSWCCA 60

appeal against conviction

maliciously inflicting grievous bodily harm

assault occasioning actual bodily harm

admission of evidence over objection

statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995

maker of statement unavailable to give evidence

objection taken on grounds of late notice and discretionary factors

no separate objection to content of evidence

whole of statement admitted

whether trial judge erred in admitting statement

- whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement

directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible

hearsay provisions of the Evidence Act

exceptions to the hearsay rule

identification of previous representation

identification of what fact was intended to be asserted by previous representation

relevant evidence

evidence of out of court representation by one person cannot be given by out of court representation of another person

evidence of previous representations inadmissible

effect of admission of inadmissible evidence of previous representation

Criminal Appeal Rules, rule 4

whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal

Criminal Procedure Act s68, s289

appellant waived right to committal hearing

proviso to s6 of the Criminal Appeal Act

admission of the inadmissible evidence would and should have had no significance in verdict

evidence properly admitted proves beyond reasonable doubt guilt of the offence

Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192

Puchalski v Regina [2007] NSWCCA 220 (23 July 2007)

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[2007] NSWCCA 220

Malicious shooting with intent to do grievous bodily harm and maliciously discharge loaded arms with intent to do grievous bodily harm – Circumstantial case – Was appellant the shooter – Jury acting reasonably entitled to be satisfied beyond reasonable doubt of guilt of accused – no necessity for Shepherd direction – Committal deposition of subpoenaed witness who went overseas very shortly before trial without notifying Crown or police correctly admitted pursuant to s 65 of Evidence Act – Correct construction of “not available to give evidence” in s 65(1) and “all reasonable steps” in cl 4(1)(e) of Pt 2 of Dictionary – Exercise of discretion under s 192 – Correct refusal of adjournment of trial.

Patterson v R (Cwlth) [2001] NSWCCA 316 (12 July 2001)

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[2001] NSWCCA 316

CRIMINAL LAW – Appeal against conviction – Prosecution submission concerning “lies” – Whether trial judge’s directions adequate.

CRIMINAL LAW – Appeal against sentence – Credit given for period of incarceration – Whether non-parole period should be calculated before or after this credit is given.

EVIDENCE – Hearsay – Criminal trial – Depositions from committal proceedings – Whether admissible when witness not “unavailable” within meaning of Evidence Act. D.

Evidence Act 1995, s.65, Dictionary.