CRIMINAL LAW – Evidence – Tendency – Accused charged with accessory after fact to murder – Co-accused charged with murder – Accused relying on defence of duress by co-accused – Whether evidence proposed to be adduced by accused concerning previous behaviour of co-accused admissible – Evidence Act 2008 (Vic) s 97.
CRIMINAL LAW – evidence – tendency – tendency notice – evidence in relation to victim’s character, reputation and conduct – tendency to engage in violent conduct towards females, use of weapons and to carry knife on person – evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted – whether evidence has significant probative value – whether evidence admissible
CRIME – evidence – where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way – call by Crown for production of any statements taken by solicitor for accused from persons identified in notice – whether client legal privilege lost upon service of notice – whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused
AGENCY – where mortgage broker misappropriated loan monies – whether mortgage broker acting with actual or apparent authority of mortgagee – actual or apparent authority – principles to be applied
CONTRACTS – unjust – where mortgage broker misappropriated loan monies – whether Contracts Review Act 1980 (NSW) excluded – whether contract entered into in the course of “trade, business or profession” – meaning of “business” – question of fact – principles to be applied
CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript
EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning
CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied
CRIMINAL LAW — Appeal — Conviction — Sexual penetration of child under 16, indecent act with child under 16 — Two complainants — Whether evidence crossadmissible — Whether tendency evidence — Whether probative value substantially outweighed any prejudicial effect it might have — Acquittal on two of four counts relating to first complainant — Whether verdicts inconsistent — Appellant cross-examined about whether complainants were lying — Withdrawal and apology by prosecutor — Directions by judge — Jury discharge application refused — Whether miscarriage of justice — Appeal dismissed — Evidence Act 2008 (Vic) ss 97, 101.
EVIDENCE — Tendency evidence — Sexual offences — Evidence of two complainants — Lapse of time between incidents — Whether evidence of one complainant probative of tendency — Whether probative value substantially outweighed any prejudicial effect — R H B v The Queen  VSCA 295; G B F v The Queen  VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW – evidence – tendency evidence – evidence proposed to be adduced by accused concerning behaviour of deceased child’s mother
CRIMINAL LAW – APPEAL – application for extension of time – where delay of more than six years – approach to be taken in determining application for extension of time – necessity for the applicant to adduce evidence which fully explains the delay
CRIMINAL LAW – APPEAL – incompetence of counsel – principles to be applied
CRIMINAL LAW – SENTENCE – where some offences for which appellant convicted had been repealed – approach to be taken in sentencing for such offences – whether sentence manifestly excessive
CONTEMPT – Publication by respondent of article on the internet – Publication contrary to non-publication order to which respondent not a party – Whether publication interfered with order – Whether respondent had sufficient notice of order – Whether public interest defence applicable to such contempt.
CONTEMPT – Whether publication had tendency to prejudice fair trial of pending criminal proceedings – Relevance of delay to trial – Relevance of other prejudicial material relating to the accused – Whether publication justified by a superior public interest.
CRIMINAL LAW – conviction appeal – admission of evidence for non-propensity purpose – evidence relevant to motive – evidence accompanied by comprehensive direction to jury not to engage in propensity reasoning – no objection taken at trial – the same evidence relied on by defence in its case – whether evidence had to be established beyond reasonable doubt – no miscarriage of justice – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether treatment of corpse after killing relevant to seriousness of offending – whether excessive weight given to treatment of corpse after death – ground of appeal not made out.
CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 – whether misdirection in summing up to jury – whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents.
CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth – whether error from prejudice regarding the admission of tendency and coincidence evidence.
CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth – application of proviso in s 6(1) of the Criminal Appeal Act 1912 – whether error by trial judge such as to make it inappropriate to apply s 6(1).
CRIMINAL LAW – appeal – sentencing – considerations – whether trial judge failed to take into account or give sufficient weight to delay – severity of sentence.
CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.
CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following real possibility of collusion could not be excluded – Retrial.
CRIMINAL LAW – indecent assault of person under the age of 16 – evidence showing sexual interest of accused in complainant – requirement for use as tendency evidence not satisfied – jury invited to use evidence for impermissible tendency reasoning – convictions quashed
TAXATION – Taxation Administration Act 1953 (Cth) – Div 290 – civil penalty regime –whether entity is a promoter of tax exploitation scheme – whether entity has implemented a scheme otherwise than in accordance with its product ruling – time limits on commencement of actions in respect of an entity’s involvement in a tax exploitation scheme
STATUTORY INTERPRETATION – meaning of “scheme benefit” – whether there is requirement of alternative postulate – meaning of “markets the scheme or otherwise encourages the growth of the scheme or interest in it” – meaning of consideration received “in respect of” marketing or encouragement
CRIMINAL LAW – Sexual offences – Commencement of a hearing in a criminal proceeding for the purposes of cl 12 of Schedule 4 of the Criminal Procedure Act 2009 (Vic) – Recording of a telephone conversation is not an interception of a communication passing over a telecommunications system within the meaning of s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) – Evidence admitted as admissions not tendency evidence – Evidence of uncharged acts against the complainant has significant probative effect – Section 97(1)(b) of the Evidence Act 2008 (Vic) – Conversation constituted an admission – A verdict of attempted sexual penetration unsafe as evidence did not disclose whether the attempt was to penetrate the complainant’s anus or vagina – Offender re-sentenced.
RIMINAL LAW – Murder – special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 – where Crown relied upon circumstantial case – necessity to consider the entirety of the circumstantial case in determining whether the accused’s commission of the alleged offence was proved beyond reasonable doubt
EVIDENCE – admissions – exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair – where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment – where accused had been interviewed by the police on two occasions and had denied killing the deceased – where police subsequently implemented undercover operation – where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence – where police continued with the undercover operation in those circumstances – where accused initially repeatedly denied responsibility for the deceased’s death to undercover operative – where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased – whether the actions of the police in implementing and continuing the undercover operation were improper – whether the circumstances in which the admissions were made were otherwise improper – whether the evidence of the accused’s admissions should be excluded as having been improperly obtained – alternatively whether evidence of the accused’s admissions should be excluded on the basis of unfairness
EVIDENCE – admissions – where evidence that the accused had allegedly admitted to the killing of the deceased – where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made – whether the evidence of the admission should be excluded on the basis of unfairness.
EVIDENCE – lies – where Crown relied upon lies told by the accused as evidence of consciousness of guilt – whether the statements made by the accused were in fact lies – whether the lies were deliberate – whether the lies were evidence of consciousness of guilt
EVIDENCE – tendency evidence – whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively
CRIMINAL LAW – conviction appeal – Appellant a former Catholic priest – 11 counts of indecently assaulting four different victims over a five year period – whether all counts should have been tried together – whether trial judge erred in permitting Crown to rely upon tendency evidence – whether evidence of hypnosis should have been allowed in relation to one of the complainants and a witness – whether cross-examination should have been permitted under the Criminal Procedure Act 1986 (Sexual Assault Communications Privilege) – whether evidence of psychiatrist retained by Appellant was properly rejected – whether jury should have been discharged after wrongful admission of evidence – whether trial judge incorrectly directed jury as to unanimous verdict – conviction appeal dismissed – SENTENCE APPEAL – whether Appellant subjected to extra curial punishment and its relevance – threats made against Appellant’s wife and children – whether proper regard taken of Appellant’s state of health – relevance of conditions under which sentence being served – relevance of Appellant’s age – relevance of Appellant’s previous good character – whether proper regard had to sentencing practices at time of the offending – sentence not manifestly excessive – appeal dismissed.
CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of dangerous driving causing death and five charges of dangerous driving causing serious injury – Whether trial judge erred in admitting the earlier driving of the accused – Whether trial judge erred in directions to the jury concerning the purpose to which the jury might use the evidence of the appellant’s earlier driving – Appeal allowed – Convictions quashed and retrial ordered.
CRIMINAL LAW – indecent assault of person under the age of 16 – evidence showing sexual interest of accused in complainant – requirement for use as tendency evidence not satisfied – jury invited to use evidence for impermissible tendency reasoning – convictions quashed
CRIMINAL LAW – indecent assault of person under the age of 16 – adequacy of directions to jury concerning a motive to lie on the part of the complainant and his mother
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency evidence under the uniform evidence law – Generally – Whether possibility of concoction or contamination – Whether relevant to probative value or risk of unfair prejudice.
CONSUMER LAW – unconscionability – entry into consumers’ homes by ruse – sale of vacuum cleaners – breaches of State and Commonwealth consumer protection legislation – whether unconscionable
CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown Application to adduce – whether proposed tendency evidence of significant probative value – whether proposed tendency evidence too ambiguous to be of significant probative value – whether proposed tendency evidence admissible for another purpose – application granted in part
CRIMINAL LAW – conviction appeal – three counts of sexual intercourse without consent and two counts of sexual assault involving three separate victims – whether course of events at trial gave rise to a miscarriage of justice because of the failure to order separate trials – whether s97 Evidence Act 1995 (NSW) was correctly applied – whether tendency evidence gave rise to a miscarriage of justice – appellant a practitioner of traditional Chinese medicine – whether jury should have been directed as to “for proper medical purposes” with respect to offence contrary to s61H(1) Crimes Act 1900 – significance of jury question – whether evidence gave rise to need for such a direction – whether direction required even though appellant had not raised the issue “for proper medical purposes” – whether jury properly directed as to appellant’s good character – appeal dismissed.
TORTS “ NEGLIGENCE “ personal injury “ motor vehicle accident “ liability of principals to independent contractors “ cause of accident “ load shift “ whether load shift attributable to negligent packing or negligent instructions “ principal and employer owed duty to plaintiff “ whether principals duty limited to exercising reasonable care in designing system for transporting steel coils “ principal maintained control over system of packing “ principal not entitled to relieve itself of its duty to plaintiff by relying on separate duty employer owed to plaintiff “ principals duty included proper design of the loading and packing system as well as maintaining efficacy of system when circumstances changed “ principal in breach of duty “ employer also in breach of duty “ plaintiff not contributorily negligent “ apportionment of responsibility
CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found
CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence
CONTRACT – agreement to supply land fill – whether appellants proved that fill supplied by respondents was contaminated with asbestos
EVIDENCE – tendency evidence – s 97 Evidence Act 1995 – whether respondents supplied contaminated land fill to appellants’ property – relevance of evidence of deliveries of contaminated land fill by the respondents to two other properties
CRIMINAL LAW -Crown appeal-order for trial by judge alone- whether discretion miscarried;
CROWN APPEAL- order for trial by judge alone- racial prejudice- order made without evidence- jury prejudice- procedures available to identify and excuse prejudiced jurors- directions to jurors to promote impartial decisions;
APPLICATION FOR ORDER FOR TRIAL BY JUDGE ALONE – apprehension of prejudice from facts of case- whether order justified- whether expert evidence complex- whether complexity of evidence justified order.
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
EVIDENCE – similar facts – sexual offences –tendency and coincidence evidence – whether relevant to the issue of abuse of position of authority or trust
CRIMINAL LAW – engaging in sexual intercourse without consent – committing acts of indecency without consent – consent alleged to have been negated by abuse of position of authority or trust – abuse in the context of s 92P(1)(h) (now 67(1)(h)) of the Crimes Act 1900
APPEAL – appeal from order for separate trials following ruling against the admission of tendency and coincidence evidence
WORDS AND PHRASES – “abuse of position of authority … or … trust”
Evidence – Tendency rule – Section 97(1) of Evidence Act 1995 (Cth) – Failure to comply with tendency rule where evidence not characterised as tendency evidence at first instance – Applicants alleged that respondents refurbished and sold machines that incorporated pirated copies of material in which applicants held copyright, thereby infringing ss 36 and 38 of Copyright Act 1968 (Cth) – Email communications of respondents relied upon by primary judge to prove that respondents had knowledge of infringing conduct – Full Court of Federal Court held that email communications relied upon by primary judge to establish tendency to engage in infringing conduct without compliance with s 97(1) of Evidence Act 1995 (Cth) – Whether open to Full Court to conclude that email communications were relied upon by primary judge to establish tendency.
Words and phrases – “tendency evidence”.
Copyright Act 1968 (Cth), ss 36, 38.
Evidence Act 1995 (Cth), ss 94(1), 95(1), 97(1), 136.
CRIMINAL LAW – murder – application for a trial before a judge alone – whether in the interests of justice to grant the order sought – whether issue of intention was one which required the application of community standards – whether the nature and extent of pre-trial publicity was such as to render it in the interests of justice that order be granted for a trial by judge alone – whether potential saving to the community is a relevant factor – where appropriate directions will be given to the jury – where it is assumed that such directions will be applied – application for judge alone trial dismissed
CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce –
s 97 Evidence Act 2011 (ACT) – whether evidence can prove proposed tendency – evidence lacks significant probative value – application refused
CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce – s 97 Evidence Act 2011 (ACT) – acts do not establish a tendency – application refused
Evidence Act 2011 (ACT), s 97
EVIDENCE – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury
APPEAL – only ground that further evidence available justifying new trial – exercise of discretionary power under s 75A(7) of Supreme Court Act 1970 – most of further evidence as to matters occurring before trial – importance of principle of finality – whether “special grounds” – whether appellant could have led evidence as to those matters at trial by exercise of reasonable diligence – whether probable that further evidence would have resulted in a different outcome at trial – further evidence considered separately and together not justify conclusion that outcome would have been different – interests of justice not require order for new trial on basis that a “substantial wrong or miscarriage” has been occasioned
TAXATION – Taxation Administration Act 1953 (Cth) – Division 290 – Civil penalty regime –Whether entity is a promoter of tax exploitation scheme – Whether entity has implemented a scheme otherwise than in accordance with its product ruling – Time limits on commencement of actions in respect of an entity’s involvement in a tax exploitation scheme
STATUTORY INTERPRETATION – Meaning of ‘markets the scheme or otherwise encourages the growth of the scheme or interest in it’ – Meaning of consideration received ‘in respect of’ marketing or encouragement
CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown application to adduce – Evidence capable of establishing tendencies – Probative value of the tendency evidence substantially outweighs its prejudicial value – Trial will not be excessively complex despite multiple complainants and counts where tendencies limited – Counts that do not support the tendencies are severable – Application conditionally allowed
CRIMINAL LAW – EVIDENCE – Coincidence Evidence – Crown application to adduce –Probative value of evidence does not substantially outweigh prejudice – Value of evidence as coincidence evidence not as substantial as value as tendency evidence – Application refused
ADMINISTRATIVE LAW – Coroner – inquest into the death of a child – Reportable death – Obligation to find, if possible, the cause of death and circumstances in which the death occurred – Coroner excluded statements about the circumstances of the deaths of five other children – Propensity evidence – Whether statements were relevant considerations that the Coroner was obliged to take into account – Pfennig v The Queen  HCA 7; (1995) 182 CLR 461 – Section 67(1)(b) and s 67(1)(c) of the Coroners Act 2008 (Vic).
CORONER – Whether witness should be compelled to give evidence under s 57(4) of the Coroners Act 2008 (Vic) – Reliability of the evidence relevant to whether the ‘interests of justice’ required that witness give evidence – Inquisitorial character of coronial inquest – Weinstein v Medical Practitioners Board of Victoria  VSCA 193; (2008) 21 VR 29 – Distinction between ‘salient facts’ and mere ‘pieces of evidence’ – Macedon Ranges Shire Council v Romsey Hotel Pty Ltd  VSCA 45; (2008) 19 VR 422.
STATUTORY INTERPRETATION – Section 57(3) of the Coroners Court Act 2008 (Vic) – Whether Coroner obliged to inform witness that he would be given a certificate of immunity if he willingly gave evidence – Appeal allowed.
CRIMINAL LAW – appeal pursuant to 5F(3A) of the Criminal Appeal Act 1912 – whether error in excluding tendency evidence or context evidence – whether tendency notice defective – appeal allowed by consent – reasons later published
CRIMINAL LAW – evidence – domestic homicide – evidence of prior domestic violence – relationship evidence – whether tendency evidence – whether significant probative value.
EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded
EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove
EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business
EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible
EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu  NSWSC 539; (1999) 47 NSWLR 309 should be followed
CRIMINAL LAW – Evidence – tendency – domestic homicide – murder – application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship – alleged attempt to strangle previous partner’s male colleague – alleged attempt to strangle previous partner – accused caused self harm following dispute with previous partner – similarity of acts – distance in time – whether significant probative value to facts in issu
CRIMINAL LAW – appeal against conviction – three counts of sexual intercourse without consent s 61I Crimes Act 1900 – whether trial judge erred in admitting evidence of prior non-sexual domestic violence as relationship evidence – whether miscarriage of justice resulted – whether miscarriage of justice resulted from absence at trial of ‘fresh evidence’ of appellant’s Asperger’s Disorder
CRIMINAL LAW – application for leave to appeal against sentence – sexual intercourse without consent – appellant sentenced to seven and a half years imprisonment with four and half years non-parole period – whether sentences were manifestly excessive – whether objective seriousness of offences was assessed in context of marital relationship between appellant and complainant
Criminal law – Manslaughter by unlawful and dangerous act – Appellant party to joint enterprise to supply methadone to deceased – Deceased died from combined effect of methadone and prescription drug – Whether appellant’s supply of prohibited drug to deceased unlawful and dangerous act – Whether sufficient evidence to warrant order for new trial on basis that appellant administered or assisted in administering drug to deceased.
Criminal law – Manslaughter by criminal negligence – Appellant party to joint enterprise to supply methadone to deceased – Deceased suffered adverse reaction to drugs in appellant’s presence – Appellant failed to obtain medical treatment for deceased – Whether appellant under legal duty to take steps to preserve deceased’s life.
Words and phrases – “legal duty”, “omission”, “supplier of prohibited drug”, “unlawful and dangerous act”.
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Other cases – Tendency to have sexual interest in young girls.
CRIME – appeal against conviction – obtain money by deception – obtain money by false or misleading statements – whether charges on indictment consistent with offence in respect of which appellant surrendered for extradition – whether trial judge should have directed acquittal – whether miscarriage of justice – whether trial judge failed to direct jury on limb of indictment – whether jury verdicts unreasonable, unsafe or unsatisfactory – whether tendency direction should have been given – s 97(1) Evidence Act – appeal against sentence – whether non-parole period uncertain – whether failure to consider special circumstances – whether allowance for rehabilitation – whether manifestly excessive – totality principle.
CRIMINAL LAW – Conviction – Two charges of sexual penetration of a child under 10, two charges of gross indecency and one charge of indecent assault – Two male complainants – Offences committed more than 30 years ago – Whether jury verdicts on the two charges of sexual penetration of a child under 10 were unsafe and unsatisfactory – Whether sufficient evidence on which the jury could make findings about the age of one of the complainants – Appeal allowed and convictions set aside on those charges – Exercise of the power to enter a conviction for another offence – Criminal Procedure Act 2009, s 277(1)(c) – Convictions entered for indecent assault of a male person (s 68(3A) Crimes Act 1958) and sexual penetration of a child between 10 and 16 (s 48(1) Crimes Act 1958).
EVIDENCE – Tendency evidence – Whether admissions made by the appellant in relation to one complainant cross admissible as tendency evidence in relation to the other complainant – Whether evidence had significant probative value – Whether any substantial miscarriage of justice where other tendency evidence admissible and not the subject of appeal.
CRIMINAL LAW – Sentence – Offender re-sentenced to total effective sentence of three years three months – Non-parole period of two years.
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  FCA 461; (2000) 98 FCR 204 – R v Mankotia  NSWSC 295 – Williams v The Queen  FCA 1868; (2000) 119 A Crim R 490 – R v Ambrosoli  NSWCCA 386; (2002) 55 NSWLR 603 – Gaio v The Queen  HCA 70; (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB  29 VR 110 – R v LRG (2006) 16 VR 89 – Murray v The Queen  HCA 26; (2002) 211 CLR 193 – Liberato v The Queen  HCA 66; (1985) 159 CLR 507.
CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165