Category Archives: s. 097

Swan v The Queen [2013] VSCA 226 (30 August 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/226.html

CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death — Appellant pleaded guilty to alternative charge of dangerous driving causing death — Crown led evidence of appellant using heroin prior to offending and history of appellant’s heroin addiction — No evidence led to show causal link between taking heroin and offending — No tendency notice filed or application to dispense with filing of notice to lead evidence of appellant’s history of heroin addiction — Evidence irrelevant and highly prejudicial — Substantial miscarriage of justice — Appeal allowed – Retrial ordered – Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 applied

15 It follows from the above that not only was AS’s evidence of the appellant’s taking heroin before the accident irrelevant, but the evidence as to his longstanding drug addition was likewise irrelevant. It was, accordingly, inadmissible. But irrelevance was not the only problem associated with the Crown evidence as to the appellant’s drug addiction. Evidence that a person engages in a particular habit (scil. acts in a particular way), tendered to prove that he pursued that habit (scil. acted in a particular way) on a particular occasion, is tendency evidence, the admissibility of which is governed by s 97(1) of the Evidence Act 2008 . As such it is inadmissible unless the conditions precedent to its admissibility set out in ss 97(1)(a) and (b) and 101(2) are satisfied. It was required to be the subject of a notice to the appellant that the Crown would seek to rely upon it, it must have had significant probative value and that probative value must have substantially outweighed any prejudicial effect it may have had on the appellant.

16 The evidence as to the appellant’s drug habit was never the subject of a tendency evidence notice, nor was it the subject of any application by the Crown under s 100(1) of the Act for dispensation from that requirement. It was, on that score alone, inadmissible. This would have been so even if Dr O’Dell had proffered an opinion, concerning the effect upon the appellant’s driving of heroin use shortly before the accident, which supported the Crown case. In the circumstances the evidence of the appellant’s drug habit should not have been admitted to prove the likelihood of the appellant having taken heroin in the period immediately before the accident.

SLS v The Queen [2014] VSCA 31 (6 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/31.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.

The Queen v Jacobson (Ruling No 2) [2014] VSC 368 (8 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/368.html

CRIMINAL LAW – Two counts of conspiracy to contravene s 1041A of Corporations Act 2001 (Cth) – 33 counts of contravening s 1041A of Corporations Act – Joinder of counts in one indictment – Severance – Admissibility of previous dealings as context evidence – Whether previous dealings admissible as tendency evidence – Cross-admissibility of evidence as context or tendency evidence – Elements of offences.

Casey v The Queen [2014] VSCA 257 (21 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/257.html

CRIMINAL LAW – Application to appeal against conviction – Whether trial judge erred in admitting tendency evidence – Whether properly construed as evidence of relationship and context – Whether trial judge failed to adequately direct jury on the use of tendency evidence – Leave granted – Appeal dismissed.

CRIMINAL LAW – Application to appeal against sentence – Whether manifestly excessive – Leave to appeal refused.

R v Sumpton (No. 2) [2014] NSWSC 1440 (21 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1440.html

CRIMINAL LAW – evidence – sexually motivated murder of Asian woman -tendency evidence – evidence of sexual interest in Asian women – accused asserts that he has no interest in sex – accused asserts sexual dysfunction – evidence that accused watched “Asian pornography” – evidence that accused visited Asian prostitutes – evidence that accused “liked it rough” – evidence of the accused using “speed” during sexual activity – evidence of the accused’s Facebook “friends” – 90% of accused’s 110 friends “young teenage Asian females” – assessment of probative value – assessment of prejudicial effect

Rapson v The Queen [2014] VSCA 216 (11 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/216.html

CRIMINAL LAW – Appeal – Conviction – Rape and indecent assault – Tendency evidence – Eight complainants – Whether evidence of individual complainants cross-admissible – Whether sufficient similarity or commonality in sexual acts or surrounding circumstances – Crown concession that evidence of two complainants not cross-admissible – Evidence of other complainants cross-admissible – Appeal allowed, retrial ordered – Velkoski v The Queen [2014] VSCA 121 applied – Evidence Act 2008 ss 97, 101.

Gentry (A Pseudonym) v DPP [2014] VSCA 211 (2 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/211.html

CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual offences against child under age of 16 – Single complainant – Evidence of sexual interest in complainant and willingness to act on that interest – Velkoski v The Queen [2014] VSCA 121, considered – Use of evidence of charged acts as tendency evidence – Versi v The Queen [2013] NSWCCA 206, applied.

Papazoglou v The Queen [2014] VSCA 194 (2 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/194.html

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Adequacy of judge’s charge – Trial judge’s responsibility to identify real issues and summarise relevant evidence – Whether defence case and evidence adequately summarised – Central issue was reliability of complainants – Jury charge sufficient – R v AJS [2005] VSCA 288; (2005) 12 VR 563 applied – Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to have doubt – R v Klamo [2008] VSCA 75; (2008) 18 VR 644, Greensill v The Queen (2012) 37 VR 257 applied – Application for leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Limits on cross-examination – Judge’s obligation to manage proceeding – Collateral evidence rule – Issues going to complainant’s credibility – Whether defence unfairly constrained – Limits appropriate – No unfairness – Papazoglou v The Queen (2010) 28 VR 644 applied.

CRIMINAL LAW – Appeal – Conviction – Trial – Witnesses – Prosecutor’s obligation to call – Applicant’s sons said to have been present when offences committed – Substantial time between offending and trial – Younger son had no recollection – Elder son had given evidence at earlier trial – No relevant recollection – Prosecution elected not to call either son – Both witnesses called by defence – Whether prosecution’s decision led to miscarriage of justice – No misuse by prosecution of opportunity to cross-examine – No miscarriage of justice.

CRIMINAL LAW – Appeal – Conviction – Evidence – Tendency evidence – Two complainants – Whether evidence cross-admissible – Whether significant probative value – Whether collusion reasonably possible – No evidence of collusion – No miscarriage of justice – Evidence Act 2008 ss 97, 101.

CRIMINAL LAW – Appeal – Conviction – Jury – Requirements of jury trial – Juror’s oath – Sufficiency of jury deliberations – Majority verdicts – Perseverance direction – Scope of ‘exclusionary rule’ – Note from jury to judge – One juror said not to be participating in deliberations – Whether individual juror required to participate in collective deliberation – Jury resumed deliberation after direction – No miscarriage of justice – Smith v Western Australia (2014) 250 CLR 473, Black v The Queen [1993] HCA 71; (1993) 179 CLR 44 applied – Juries Act 2000 s 46(2) and sch 3.

Campbell v R [2014] NSWCCA 175 (2 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/175.html

CRIMINAL – appeal – conviction – whether misdirection in presentation of crown case to jury – no misdirection on factual possibility of push followed by a trip – consistent with an intention to kill – direction consented to – no tactical disadvantage – no miscarriage of justice – misdirection on availability of mental element of reckless indifference to human life – not Crown case – whether miscarriage of justice – significance of the appellant’s case that he was not involved in death at all – possibility of jury speculating remote – no objection by counsel

CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether evidence wholly or substantially based on specialised knowledge – process of reasoning involved matters of common knowledge

CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether expert had relevant expertise – whether expertise from study and experience – no details of how investigations conducted equipped expert to give evidence in present case – publications not tendered – titles of publications insufficient evidence of expertise from study and experience

APPEAL – criminal – whether notwithstanding appellant’s success appeal should be dismissed – application of proviso – 6(1) Criminal Appeal Act 1912 (NSW) – whether no substantial miscarriage of justice – consideration of importance of expert evidence – Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant

APPEAL – criminal – fresh evidence – whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence – could have been discovered by reasonable due diligence – no miscarriage of justice – previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence

CRIMINAL – appeal – conviction – no error in direction on use of evidence as both tendency evidence and for motive – reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved

Polley v Johnson and anor [2014] NSWSC 1191 (29 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1191.html

SEARCH WARRANTS – Validity – Where search warrant granted to search premises in relation to an offence of threatening injury or detriment to a person believing that such person will be or may be called as a witness in judicial proceedings – Whether judicial proceedings are required to be on foot in order for such offence to be made out – Whether search warrant invalid

SEARCH WARRANTS – Validity – Whether reasons stated in the application for a search warrant were truthful – Where Court was invited to conclude that the stated reasons were a “cover” for another undisclosed reason – Where no such proposition was put to the applicant for the search warrant when cross examined – Breach of the rule in Browne v Dunn – Where evidence did not support the proposition that the warrant was issued for a reason other than that stated in the application

STATUTORY INTERPRETATION – general principles to be applied

TS v R [2014] NSWCCA 174 (29 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/174.html

CRIMINAL LAW – Appeal – Application for a permanent stay of prosecution for multiple counts of sexual assault – Where applicant found unfit to stand trial – Where Director of Public Prosecutions had determined to proceed to special hearing in any event – Where offending conduct occurred more than 40 years ago – Where the making of allegations arose as the result of recovered memory – Where only expert evidence supported the conclusion that such process was unreliable – Where material evidence no longer available due to lapse of time – Where primary judge dismissed application for a stay – Where error in exercise of discretion made out – Where discretion re-exercised – Stay of proceedings granted

Hanna v The Queen; Mohamed v The Queen; Mohamed v The Queen [2014] VSCA 187 (26 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/187.html

CRIMINAL LAW – Appeal – Conviction – Kidnapping, false imprisonment and intentionally causing injury – Jury directions – Whether directions about ‘background’ or ‘context’ invited propensity or tendency reasoning by jurors – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Leave to appeal – Jury – Apprehended bias – Whether juror overheard accused at café – Whether judge investigated adequately – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Kidnapping, false imprisonment and intentionally causing injury –Total effective sentence nine years and six months’ imprisonment, non-parole period seven years – Whether manifestly excessive – Parity – Whether identical sentences adequately reflected youth and rehabilitation of younger applicants – Procedural fairness – Psychologist’s report – Judge’s assessment of applicant more favourable than report – Whether finding reasonably anticipated – Younger applicants re-sentenced – Eight years’ imprisonment, non-parole period five years and six months.

R v MM [2014] NSWCCA 144 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/144.html

CRIMINAL LAW – evidence – tendency evidence – admissibility – whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) – whether judicial directions may ameliorate any prejudicial effect
CRIMINAL LAW – evidence – context evidence – admissibility – whether evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995 (NSW)

JG v R [2014] NSWCCA 138 (25 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/138.html

CRIMINAL LAW – appeal against conviction – appellant convicted of multiple offences relating to sexual assaults against two complainants – complainants were students at the school at which the appellant resided and was employed – jury in the first trial were unable to agree as to the counts and were discharged – appellant retried before another judge and jury – during the second trial the appellant sought a redetermination of a number of pre-trial orders made by the first trial judge – trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of separate trials on the counts relating to each complainant – trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of tendency and coincidence evidence relied upon by the prosecution – trial judge did not err in refusing an application for a permanent stay of the indictment in respect of one complainant – appellant was not cross-examined contrary to Palmer v R – principles as to impermissible cross-examination referred to in Gonzales v R [2007] NSWCCA 321 – whether there was a miscarriage of justice – basis upon which the appellant conducted his case that complainants and other witnesses had lied – conviction of the appellant was not unsafe or unsatisfactory – appeal dismissed

Saoud v R [2014] NSWCCA 136 (25 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/136.html

APPEAL AND NEW TRIAL – appeal – general principles – interference with discretion of court below – whether decision involved a discretionary exercise of power

COURTS AND JUDICIAL SYSTEM – intermediate appellate courts – interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence – different interpretations alleged as to meaning of “significant probative value” – Velkoski v The Queen [2014] VSCA 121 held “significant probative value” requires a higher degree of similarities to that required by this Court – whether difference exists – whether difference needs to be addressed and reconciled – Evidence Act 1995 (NSW), ss 97, 98 – Evidence Act 2008 (Vic), ss 97, 98

EVIDENCE – admissibility – tendency and coincidence evidence – similar circumstances alleged in separate and independent complaints against applicant – whether evidence had “significant probative value” – whether trial judge failed to identify issues at trial to determine probative value – degree of specificity of conduct in determining probative value of tendency or coincidence evidence – relevance of similarities in determining probative value of tendency evidence – whether probative value of evidence outweighed any prejudicial effect – Evidence Act 1995 (NSW), ss 97, 98, 101(2)

The Queen v Farrugia [2014] VSC 212 (14 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/212.html

CRIMINAL LAW – Murder – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to accused – ss 97, 101 Evidence Act, 2008 (Vic)

EVIDENCE – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer in a murder trial – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to the accused – ss 97, 101 Evidence Act, 2008 (Vic)

Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85 (18 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/85.html

CORPORATIONS – insolvency – winding up – appeal from decision refusing application to remove liquidators – whether judge erred in statement of test for apprehension of bias – whether apprehension of bias arises in circumstances including liquidators needing to investigate transactions involving a corporate group with whom the liquidators have a referral relationship

CORPORATIONS – insolvency – voluntary administration – appeal from decision refusing application for declarations that administrators contravened s 436DA of the Corporations Act 2001 (Cth)

Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716 (4 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/716.html

COSTS – applicant had failed in claims under the Sex Discrimination Act 1984 (Cth) and succeeded partially in claims under the Fair Work Act 2009 (Cth) – respondent sought costs of failed discrimination claims – whether s 570 of the Fair Work Act limits the Court’s power with respect to costs of claims under the Sex Discrimination Act – respondent also sought costs under s 570(2)(b) of the Fair Work Act – whether particular applications and other acts were unreasonable

Lyndon v R [2014] NSWCCA 112 (24 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/112.html

CRIMINAL LAW – appeal – conduct of prosecution – closing address to jury – general comments made about the credibility of children – whether prosecutor improperly suggested having a particular expertise with respect to the testimony of children – whether prosecutor improperly invited the jury to rely on a lie told by accused – prejudicial effect considered – failure by defence to object at trial – whether audio recording of address should be tendered

CRIMINAL LAW – appeal – whether defence counsel incompetent – failure to lead evidence – complainants said accused was kneeling during sexual intercourse – failure to call medical evidence regarding accused’s difficulties kneeling – whether trial miscarried

CRIMINAL LAW – appeal – unreasonableness of verdicts – separate counts of indecent assault against two children – one count of sexual intercourse with a child – accused found guilty of one charge of indecent assault and charge of sexual intercourse with same child – acquittal on other charges – unreasonableness alleged on lack of consistency between verdicts and unreliability of evidence – possibility of concoction

EVIDENCE – tendency – direction to jury – whether judge should have warned against tendency reasoning – use of acts alleged against one child as potential tendency evidence for acts against the other child – prosecution not seeking to rely on tendency – direction that each offence should be considered separately – no objection raised at trial about failure to give warning

EVIDENCE – appeal – ground alleged failure by defence counsel to call medical evidence at trial – test of miscarriage objective – counsel’s reasons for conduct of trial irrelevant – evidence from counsel inadmissible

Stanley v Service to Youth Council Incorporated [2014] FCA 643 (20 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/643.html

HUMAN RIGHTS – sex discrimination – applicant made redundant while on maternity leave – whether applicant “targeted” for dismissal after announcing her pregnancy – whether termination constituted discrimination on the basis of sex, pregnancy or family responsibilities – whether applicant sexually harassed
INDUSTRIAL LAW – National Employment Standards – whether respondent failed to respond to a request for flexible working arrangements – whether respondent failed to consult employee on parental leave regarding changes affecting status, pay or location of pre-parental leave position – whether return to work guarantee in s 84 of the Fair Work Act 2009 (Cth) contravened

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/121.html

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen [2001] FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) [2005] NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31R; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen [2014] NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.

CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid [1999] NSWCCA 258; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen [2008] NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [[1976] VR 577, followed – Waiver – R v Clarke [2005] VSCA 294; (2005) 13 VR 75; R v McCosker [2010] QCA 52; [2011] 2 Qd R 138, followed – Whether trial judge under duty to intervene.

CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen [2011] VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.

EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.

CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 18) and 13 related matters [2014] NSWSC 733 (6 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/733.html

PROCEDURE – civil – interlocutory issues – application to reopen – whether party at fault by failing to address issues in submissions
PROCEDURE – civil – judgments and orders – stay pending appeal
COSTS – agreements – construction – whether contractual provisions provide for costs on indemnity basis
COSTS – exception to the general rule that costs follow the event – multiple issues – whether defences raised dominant or severable

Neville v Lam (No 3) [2014] NSWSC 607 (21 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/607.html

TORTS – medical negligence – alleged failure to advise plaintiff of risk of pregnancy and need for contraception following endometrial ablation – burden of proof not discharged – evidence of “usual practice” – usual practice supported by defendant’s publications.

DAMAGES – claim for damages – recovery for out of pocket expenses – damages for various injuries – recovery for additional costs associated with rearing or maintaining a disabled child – causation – Wallace v Kam.

RH v R [2014] NSWCCA 71 (9 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/71.html

CRIMINAL LAW – evidence – propensity, tendency and co-incidence – admissibility and relevance – tendency and co-incidence evidence under uniform evidence law – evidence admitted of prior guilty plea and admissions of aggravated indecent assault in trial of other indecent assault charges where accused pleading not guilty

CRIMINAL LAW – evidence – propensity, tendency and co-incidence – admissibility and relevance – tendency and co-incidence evidence under uniform evidence law -whether risk of contamination or concoction of evidence between complainants

CRIMINAL LAW – appeal and new trial – whether verdict unreasonable or insupportable having regard to evidence

McDonald v The Queen [2014] VSCA 80 (1 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/80.html

CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applications granted and appeals heard instanter and dismissed– Three charges of maintaining a sexual relationship with a child under 16 – Total effective sentence of 11 years and nine months’ imprisonment with a non-parole period of nine years – No error by trial judge in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 – ‘Occasions’ were sufficiently particularised – No error by trial judge in ruling that evidence that applicant accessed child pornography was admissible to refute applicant’s statements in police interview that he was only interested in adult women – No error by the trial judge in admitting a video recording of a pretext conversation between the complainant and the applicant – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 ss 47A, 70(1).

Sokolowskyj v Regina [2014] NSWCCA 55 (15 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/55.html

CRIMINAL LAW – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.

Benson v The Queen [2014] VSCA 51 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/51.html

Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a nonparole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).

DPP v Bracken [2014] VSC 94 (12 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/94.html

CRIMINAL LAW – Trial – Murder – Self-defence – Family violence – Whether family violence ‘alleged’ – Whether defence inconsistent with record of interview – Whether prosecutor bound to call Crown witnesses named on indictment – Whether Crown witnesses may be cross-examined on family violence – Questioning allowed – Crimes Act (Vic) 1958 s 9AH.

EVIDENCE – Criminal trial – Tendency evidence – Hearsay evidence – Evidence to be adduced in cross-examination – Nature and purpose of evidence identified in defence written submission – Whether further notice required – Evidence Act 2008 (Vic) ss 67, 97, 100.

EVIDENCE – Criminal trial – Murder – Self-defence – Family violence – Advance ruling – Character evidence – Proposed cross-examination of Crown witnesses about relationship between accused and deceased – Whether adducing evidence of accused’s behaviour in response to family violence would put his character in issue – Whether proposed Crown evidence of other conduct admissible – Whether ruling premature – Ruling given – Character not in issue – Crimes Act 1958 (Vic) s 9AH, Evidence Act 2008 (Vic) ss 110, 192A.

EVIDENCE – Criminal trial – Hearsay – Exception to hearsay rule – Statements by accused to witness about facial injuries – Whether accused’s statements about cause of injuries within exception – Whether admissible for non-hearsay purpose – Evidence inadmissible – Subramaniam v Public Prosecutor [1956] 1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.

The Queen v F J L [2014] VSCA 57 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/57.html

CRIMINAL LAW – Director’s application – Leave to appeal against permanent stay of 12 counts of indecent assault on children under 16 years of age – Most recent alleged offending occurred 32 years prior to trial – Whether a case of ‘simple’ delay giving rise to mere presumptive prejudice – Whether possible to address prejudice to accused through procedural steps short of a permanent stay – Gross delay giving rise to specific forensic disadvantage – Possible to address some specific disadvantages through procedural steps – Leave to appeal granted – Appeal allowed in part.

KJS v R [2014] NSWCCA 27 (18 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/27.html

CRIMINAL LAW – conviction appeal – historical sexual offences – aggravated indecent assault and aggravated sexual intercourse without consent – admissibility of other uncharged sexual acts as context evidence – whether such evidence “tendency evidence” – whether probative value of evidence outweighed by its unfair prejudice – need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences – evidence necessary to explain failure of victim to complain at the time of the offending – reasonable assumption that jury would follow judicial directions – evidence of uncharged acts admissible as context evidence.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/4.html

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 17) and 13 related matters [2014] NSWSC 55 (13 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/55.html

TRADE PRACTICES – misleading or deceptive conduct – the operation of the Trade Practices Act 1974 (Cth) (TPA) ss 51A, 52 and 59(2) – the operation of the Fair Trading Act 1987 (NSW) (FTA) ss 41, 42 and s 54(2) – the relevance of a disclaimer in determining whether conduct was misleading or deceptive – the circumstances in which silence can be misleading or deceptive – the making of implied representations of fact – whether, on the facts of this case, the alleged implied representations were drawn by the plaintiffs – what constitutes a future matter within the meaning of the TPA s 51A and the FTA s 41 – the burden of proof under the TPA s 51A and the FTA s 41 – whether the defendant had reasonable grounds for the representations concerning a future matter within the meaning of the TPA s 51A and the FTA s 41 – the limitation period on a claim for personal injury for misleading or deceptive conduct – the application of the TPA ss 82(2) and 87E
TRADE PRACTICES – unconscionability – the operation of the TPA ss 51AC – the effect of the TPA s 51AA(2) on a claim under s 51AA in circumstances where a claim is made under s 51AC – what constitutes unconscionable conduct within the meaning of the TPA s 51AC – the operation of the Franchising Code of Conduct cl 16(1) – the limitation period on a claim for unconscionable conduct – the application of the TPA s 87F
TORTS – negligent misstatement – whether the defendant had a duty to take reasonable care in making representations to potential franchisees – whether the defendant had a duty of care not to express opinions unless it had reasonable grounds for doing so – whether the defendant breached that duty of care
TORTS – negligent infliction of psychiatric injury – whether the defendant owed a duty of care to prevent mental illness flowing from economic loss in circumstances where the parties were in a commercial relationship – whether, in the circumstances of the case, the defendant ought to have reasonably foreseen that a person of normal fortitude would suffer a recognised psychiatric illness – whether the defendant breached that duty of care – whether the relevant plaintiffs suffered a psychiatric illness – whether that illness was caused by the defendant’s conduct
LIMITATION OF ACTIONS – whether the claims for personal injuries are statute barred by operation of the Limitation Act 1969 (NSW) s 50C – whether an order should be made under the Civil Procedure Act 2005 (NSW) s 65(3)
EMPLOYMENT LAW – the operation of the Industrial Relations Act 1996 s 106 (IR Act) – whether the relevant plaintiffs performed work in an industry – whether the contracts or arrangements between the parties were ones whereby that work was performed – whether the contracts or arrangements were “unfair, harsh or unconscionable” within the meaning of the IR Act s 106 – whether there was a “services contract”, within the meaning of the Independent Contractors Act 2006 (Cth) s 5 between the relevant plaintiffs and the defendant – whether the relevant plaintiffs entered into a contract for services as independent contractors by which they performed work
CONTRACTS – the operation of the Contracts Review Act 1980 (NSW) s 7
PRACTICE AND PROCEDURE – the pleading of multiple express and implied representations – the conduct of complex litigation generally
EVIDENCE – the difficulties of proof encountered in a case based on oral representations – the preparation of affidavits and pleadings – whether evidence from one plaintiff can corroborate evidence given by other plaintiffs – the operation of the rule from Browne v Dunn (1893) 6 R 67 (HL) in complex proceedings – the credit of witnesses generally

R v Schofield [2013] ACTSC 247 (21 November 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/247.html

EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665 (25 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/665.html

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.

R v Hadchiti [2013] NSWSC 1726 (30 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1726.html

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

R v Gittany (No 3) [2013] NSWSC 1670 (13 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1670.html

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

Landa v Perpetual Trustees Victoria [2013] NSWSC 1685 (1 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1685.html

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

VERSI Peter v R [2013] NSWCCA 206 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/206.html

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

Reeves v The Queen [2013] VSCA 311 (7 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/311.html

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 [2011] VSCA 295; G B F v The Queen [2010] VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.