http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/448.html

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/64.html

CRIMINAL LAW – EVIDENCE – coincidence evidence – application to adduce –

ss 98, 101 Evidence Act 2011 (ACT) – general principles examined – the evidence sought to be adduced has significant probative value that substantially outweighs prejudice to accused – application allowed

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/48.html

CRIMINAL LAW – “coincidence evidence” – effect of s 98 and s 101 Evidence Act – exclusion of evidence – effect of s 137 Evidence Act

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/28.html

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/6.html

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/176.html

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1449.html

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

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/48.html

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.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/174.html

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

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/131.html

CRIMINAL LAW – appeal – conviction – double jeopardy – incontrovertibility of verdict – whether conviction of applicant for murder of his parents controverted applicant’s acquittal for murder of his brother – whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal – whether trial judge failed to instruct jury to give applicant “full benefit” of earlier acquittal – whether trial judge erred by not staying proceedings – rule against double jeopardy not infringed – trial judge’s directions denied applicant full benefit of earlier acquittal.

CRIMINAL LAW – appeal – conviction – expert evidence – admissibility – relevance – prejudicial effect – whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant – whether probative value of evidence outweighed by prejudicial effect – probative value outweighed by prejudicial effect – evidence ought not to have been admitted – whether expert opinion evidence on similarity of pattern of stab wounds admissible – evidence of similarity admissible – opinion that similarity constituted an underlying pattern inadmissible – Crown Prosecutor’s reliance on pattern of similarity amounted to coincidence reasoning – evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 – whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice – failure to call witness caused trial to miscarry – whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence – whether probative value of evidence outweighed by prejudicial effect – evidence admissible as expert opinion evidence – probative value outweighed prejudicial effect.

CRIMINAL LAW – appeal – conviction – whether Crown Prosecutor cross-examined applicant in improper manner – whether Crown Prosecutor addressed jury in an improper manner – whether Crown Prosecutor undermined directions of trial judge – aspects of Crown Prosecutor’s conduct and address improper -no miscarriage of justice occassioned.

CRIMINAL LAW – appeal – conviction – whether verdict unreasonable or unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole – doubt capable of being resolved by jury’s advantage in seeing and hearing evidence of applicant – no reasonable doubt on independent assessment of evidence.

CRIMINAL LAW – new and fresh evidence – whether evidence available at time of trial – whether evidence credible, plausible or capable of belief – whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant – new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt.

CRIMINAL LAW – appeal – conviction – whether applicant should be acquitted or retried – discretionary considerations.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/716.html

CRIMINAL LAW – sentence – murder – whether offender had an intention to kill or an intention to inflict grievous bodily harm – whether offender acted for reward – effect of offender’s brain injury upon need for general deterrence – whether special circumstances – malicious wounding – whether partial accumulation of sentences warranted

9. Prior to the commencement of the trial, the Crown served a notice pursuant to s 97 of the Evidence Act 1995 seeking the admission, in its case against the offender at trial, of evidence concerning an incident at Kings Cross approximately two weeks after the murder of the deceased (“the Kings Cross incident”). The Crown’s application was later expanded to include an application that the evidence be admitted pursuant to s. 98 of the Evidence Act . In a judgment delivered on 16 February 2012, I concluded that the evidence should not be admitted.

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/89.html

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown is of significant probative value – application conditionally allowed

CRIMINAL LAW – EVIDENCE – Crown application to adduce Coincidence Evidence – evidence sought to be adduced by the Crown is not coincidence evidence according to s 98 of the Evidence Act 2011 (ACT) – application refused

Evidence Act 1995 (Cth), ss 97

Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/77.html

CRIMINAL LAW – Appeal – Application for reconsideration – Criminal Appeal Rules 50C – New trial order revoked and acquittal ordered

EVIDENCE – Evidence Act 1995 , s 98 – coincidence – insufficient similarities

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/381.html

PERSONAL INJURY – supply of contaminated food – Salmonella poisoning – factual contest as to source of supply.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/9.html

EVIDENCE – admissibility – coincidence evidence – s 98 Evidence Act 1995 (Cth) – significant probative value – whether regard must be had to alternative inferences inconsistent with guilt – whether R v Zhang was correctly decided – distinction between judge and jury functions in a criminal trial.

CRIMINAL LAW – appeal – pre-trial order – insider trading – s 1043A(1) Corporations Act 2001 (Cth)

Evidence Act 1995 (NSW) – ss 55, 56, 97, 98, 101, 135, 137

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1301.html

The evidence of the six deponents went to the experience that they had had in dealing with educational institutions attended by the applicant. Their own disabled children had attended those institutions. To a large extent, the events described in the various affidavits related to different times from those during which the applicant complains he was the subject of discrimination at the institutions.
In none of the affidavits relied on were specific individuals named who were said to have been personally responsible for any of the adverse conduct, and it is, therefore, not possible for me to form a view as to whether one or more of those individuals might also have been responsible for conduct about which the applicant complains. There is also an absence of detail on important matters, namely, the degree of disability suffered by the other children and the manifestations of those disabilities which, in turn, gave rise to the circumstances in which the alleged adverse action was taken.
The applicant can only rely on material of this kind if he can bring himself within one of the exceptions to the tendency rule or the coincidence rule, which are to be found, respectively, in ss 97 and 98 of the Evidence Act 1995 (Cth) (“the Evidence Act ”).

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/102.html

CRIMINAL LAW – jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs in criminal cases – whether payable – failure by prosecution to disclose material in a timely fashion – unfairness to accused.

CRIMINAL LAW – jurisdiction, practice and procedure – prosecution – duty of disclosure – principles applicable to disclosure by the prosecution.

CRIMINAL LAW – jurisdiction, practice and procedure – miscellaneous powers of courts and judges – stay of proceedings – conditional stay subject to payment of costs – whether stay beyond jurisdiction – exceptional circumstances warranting a stay – stay ordered conditionally.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/133.html

(1) Commonwealth offence – attempt to dishonestly obtain financial advantage – false claim for approximately $500,000 Goods and Services Tax refund – persistence in pursuit of claim.
(2) State offences – attack on victims with operating chainsaw – evidence of attack by another (the appellant’s father) as victims fled the danger from the chainsaw – admissibility of that evidence – jury directions – sentence – failure to accumulate upon sentence for Commonwealth offence so that no minimum custody referable exclusively to State offences – inadequacy – appellant re-sentenced.

21. There were two reasons supporting the admissibility and relevance of the evidence of what transpired between Mr Hartnett and Mr Cameron and Mr Clark. First, it was admissible so that the jury could properly assess the facts and circumstances in the correct context. To discontinue the description at the point of wielding the chainsaw by the appellant would leave a gap in the intelligibility of what the Crown alleged had occurred.
22. In O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566 approved as a correct statement of doctrine was this extract from Roscoe On Evidence in Criminal Cases 14 th ed:

“Thus evidence may be given, not only of the act charged itself, but of other acts so closely connected therewith, as to form part of one chain of facts which could not be excluded without rendering the evidence unintelligible – part in fact of the res gestae.”

The Court
23. In that case Dixon J (as he then was) spoke to the same effect in the context of that appeal:

” Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event.”

24. O’Leary remains authoritative following the passing of the Evidence Act 1995 : Adam v Regina [1999] NSWCCA 189; (1999) 106 A Crim R 510.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/42.html

CRIMINAL LAW – appeal against conviction – multiple armed robberies – coincidence evidence – evidence correctly set out in notice – conflicting witness identification evidence – jury obliged to consider that evidence – no injustice in admitting that evidence – whether there was a rational view consistent with innocence for the jury to consider – no risk of unfair prejudice or miscarriage of justice – conviction appeal dismissed
Sentence appeal – trial judge applied standard non-parole period to s.97(2) offences – question is whether sentences excessive – trial judge must consider objective seriousness – care to be taken when considering Judicial Commission Statistics – maximum sentence determined by Parliament, not statistics – analysis of comparative sentences – sentence was impermissibly high – adjustment through accumulation

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/26.html

CRIMINAL LAW – appeal against conviction – whether error in not ordering separate trials – whether error in admitting evidence of offences not on indictment – whether error in leaving all counts for the jury to determine – whether miscarriage resulting from submissions by prosecutor or errors of fact by trial judge
EVIDENCE – whether evidence in support of some counts and offences not on indictment admissible as tendency or coincidence evidence – whether evidence of confessional statements to custody manager admissible under s 281 of Criminal Procedure Act 1986 – whether in the course of “official questioning” – whether “in connection with the investigation” of an offence

49 The appellant complains first that the Judge erred in permitting a joint trial of the counts on the indictment and the three other offences and secondly that the prosecutor in the course of the application made errors that may have misled the Judge.
50 Something should be said about the manner in which the application proceeded. As the appellant notes in his submissions, no tendency or coincidence notice was filed. This was in breach of both ss 97 and 98 of the Evidence Act . This is an unacceptable practice even though no point was taken by defence counsel. The contents of a properly drafted notice in respect of coincidence evidence was considered in R v Zhang [2005] NSWCCA 437; 158 A Crim R 504. The contents of a properly drafted notice for tendency evidence was considered in Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233. The importance of explicitly identifying the related events for the purpose of s 98 and the asserted tendency for the purpose of s 97 should be obvious: how else is the court going to be able to make a rational decision about the probative value of the evidence.
51 The Judge should have refused to proceed until proper notices were given notwithstanding the attitude take by defence counsel. Here the whole of the evidence was simply placed before the Judge on the basis it was tendency, coincidence or circumstantial evidence without any attempt to place it into its component parts or identify what evidence was admissible on what basis.
…
116 In my opinion it was clearly open to the Judge to have admitted the evidence. It was relevant as a response to being shown the bags from Belconnen McDonald’s. Whether or not it was an admission to that robbery was a question of fact for the jury and they were in a good position to make that decision because it was video recorded. It was not misleading because the jury knew all the surrounding facts upon which they could base their decision. It was not crucial to the Crown case, which was really based upon coincidence or tendency evidence, but it supported the contention that the appellant committed the Belconnen robberies. Section 137 of the Evidence Act had no role to play because, if the jury thought that the appellant was admitting to the Belconnen robbery, the only prejudice was that the admission supported the Crown case. On the other hand, if the jury doubted that he was admitting to have committed the Belconnen robbery and was confused, tired or for some other reason was referring to the Mittagong robbery, they would have disregarded it as having no evidentiary value.
117 There was no other reason to reject the evidence. It was not illegally obtained and, if it was an admission, then there was no reason to doubt its reliability. Section 90 had no role to play because the admission of the evidence did not render the appellant’s trial unfair.
118 In his evidence the appellant explained that he was mistaken and thought he was referring to the Mittagong robbery. That was the position taken by his counsel in his closing address.
119 In my opinion the evidence was rightly admitted.

http://www.austlii.edu.au/au/other/HCATrans/2011/32.html

Heydon J
We are of opinion that the application for special leave should be dismissed. The substantive points made by Mr Sutherland will remain available to be used by the accused in the event that the trial ends in his conviction. We think there are insufficient prospects of success in an appeal based on the present application to justify the grant of leave. We also think that, assuming as Mr Sutherland submitted, there is an emerging difference between the approach in New South Wales and Victoria to the operation of sections 97 and 98 of the Evidence Act , the proceedings as they now stand are not a satisfactory vehicle to examine what the law actually is since it turns on a ruling on evidence on the strength of statements of what it is expected the witnesses will say, as distinct from the actual evidence they will, in due course, give. For those reasons, the application must be dismissed.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/303.html

CRIMINAL LAW – Appeal against conviction – Sexual offences alleged by different complainants against same accused – Tendency evidence – Coincidence evidence – Whether separate trials should have been ordered – Whether significant probative value – Whether probative value substantially outweighed prejudicial effect – Risk of concoction or contamination of evidence – Whether errors in directions to jury.
CRIMINAL LAW – Crown appeal against sentence – Several sexual offences against minors – Whether sentencing judge erred in imposing individual sentences and/or in failure to partially accumulate – Whether aggregate sentence manifestly inadequate.

Evidence Act 1995 , ss 97, 98, 101

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/271.html

CRIMINAL LAW
whether the trial judge erred in admitting evidence of the violent behaviour of the offender over a period of time and failed to give the jury adequate instructions regarding this evidence in sexual assault cases
whether there was a miscarriage of justice in relation to the Crown Prosecutor’s address
where violence by offender may explain the acquiescence and failure to complain by victims of sexual assault
application of rule 4

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/148.html

CRIMINAL LAW – sexual intercourse without consent – acts of indecency – eight separate incidents – seven complainants

EVIDENCE – pre-trial application – application to sever the indictment – application partially granted

EVIDENCE – pre-trial application – application to adduce evidence of tendency and coincidence – whether evidence has significant probative value – whether probative value substantially outweighs prejudicial effect – unrelated issues – unfair prejudice – application partially dismissed – allegations of similar and underlying unity – relevant to rebut suggestion of accident – relevant to rebut lack of awareness of inappropriateness – relevant to general context – application partially granted

Evidence Act 1995 (Cth), ss 55, 95, 97, 98, 101, 135, 137

http://www.austlii.edu.au/au/cases/cth/FCA/2010/762.html

“1. The applicant, an Australian Building and Construction inspector appointed under s 57 of the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act), by motion dated 14 May 2010 seeks an order pursuant to Order 11 rule 16 of the Federal Court Rules (FCR) that para 28A of the defence filed on behalf of the second and third respondents, Construction, Forestry, Mining and Energy Union and the Construction, Forestry, Mining and Energy Union of Workers (Unions), be struck out on the ground that it has a tendency to cause prejudice, embarrassment or delay in the proceeding.”
Evidence Act 1995 (Cth) ss 97, 98, 135

R v S [2005] TASSC 18
Slicer J
CRIMINAL LAW — Jurisdiction practice and procedure — Adjournment, stay of proceedings or order restraining proceedings — Stay of proceedings — Abuse of process — Delay in instituting proceedings — Whether the accused will be prejudiced or oppressed by the delay.
CRIMINAL LAW — Jurisdiction, practice and procedure — Information, indictment or presentment — Joinder — Joint or separate trials — Generally — Discretion of trial judge to make orders — Severance of counts of indictment.

(TAS) Aust Dig Criminal Law [703]

(TAS) Criminal Code 1924 s 326

(TAS) Evidence Act 2001 ss 97, 98(2)(a) and 101

(TAS) Aust Dig Criminal Law [725]

Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, applied

R v Randell [1999] TASSC 78, considered

Crawford J

CRIMINAL LAW — Evidence — Similar facts — Relevance — Sexual Offences — Similar acts in relation to different persons — Whether related events — Whether significant probative value.

(TAS) Evidence Act 2001 ss 98(1)(b) and (2) and 101(2)

(TAS) Aust Dig Criminal Law [522]

L v Tasmania [2006] TASSC 59; R v Ellis (2003) 58 NSWLR 700, applied

[2009] NSWSC 1223

Admissibility – Coincidence – Customs offence