EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen  HCA 50; (1988) 165 CLR 292; R v Papamitrou  VSCA 12; (2004) 7 VR 375; R v Ellis  NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen  FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic)  VSCA 26; (2010) 24 VR 486; AE v The Queen  NSWCCA 52; PNJ v Director of Public Prosecutions (Vic)  NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen  VSCA 95; GBF v The Queen  VSCA 135; R v Ford  NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR  VSCA 229; PG v The Queen  VSCA 289; CW v The Queen  VSCA 288; KRI v The Queen  VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen  VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen  VSCA 442; DR v The Queen  VSCA 440; CEG v The Queen  VSCA 55; Reeves v The Queen  VSCA 311; R v PWD  NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen  VSCA 93; (2012) 35 VR 475; Semaan v The Queen  VSCA 134; Murdoch v The Queen  VSCA 272; SLS v The Queen  VSCA 31R; CV v Director of Public Prosecutions (Vic)  VSCA 58; Doyle v The Queen  NSWCCA 4; Sokolowskyj v The Queen  NSWCCA 55; DAO v The Queen  NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen  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  NSWCCA 258; Gonzales v The Queen  NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen  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 [ VR 577, followed – Waiver – R v Clarke  VSCA 294; (2005) 13 VR 75; R v McCosker  QCA 52;  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  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.
APPEAL- Appeal – General principles – Right of appeal -When appeal lies – From interlocutory decisions – Leave to appeal
CRIMINAL LAW – Appeal – Interlocutory orders – Section 5F(3) Criminal Appeal Act 1912 – Interlocutory order not to order separate trials – Application of Section 21 Criminal Procedure Act – Question of admissibility of evidence central to decision of primary judge – Admissibility of coincidence evidence – Section 98 and 101 Evidence Act 1995 – Whether leave ought to be granted
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
CRIMINAL LAW – sentence – murder – jury verdict – stabbing with intention to kill – fact finding after trial – no premeditation but not impulsive or spontaneous – above mid range of objective seriousness – no remorse – guarded prospects of rehabilitation – no special circumstances
CRIMINAL LAW – Interlocutory appeal – Coincidence evidence – Obtaining financial advantage by deception – Importance of identifying issue to be proved – State of mind – Whether repeated misstatements as to net income of business in three applications for finance were deliberate and dishonest – Degree of similarity of events and surrounding circumstances required – Relationship between events – Cogency of combined force of coincidence evidence – Innocent hypothesis arising from Crown evidence – Whether hypothesis diminished significant probative value of events – Appeal dismissed.
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.
CRIMINAL LAW – Crown appeal – Criminal Appeal Act 1912, s 5F(3A) – accused charged with sexual intercourse without consent – Crimes Act 1900, s 61I – pre-trial evidentiary rulings – Criminal Procedure Act 1986, s 293(4)(a) – evidence of complainant’s sexual interest in a man other than accused – evidence irrelevant – whether tendency evidence – whether evidence of sexual experience or sexual activity – whether at or about time of commission of offence charged – evidence inadmissible
EVIDENCE – evidence of telephone conversation recorded pursuant to warrant – admissions – Evidence Act , s 90 – whether unfair to admit evidence – whether complainant acting as “agent of the State” – whether unfair derogation of accused’s right to exercise free choice to speak or be silent – whether conversation “functional equivalent of an interrogation” – “eliciting behaviour” – whether admissions made voluntarily
EVIDENCE – Evidence Act , s 137 – probative value of evidence – whether existence of alternative explanation relevant to assessment of probative value – facts in issue – Evidence Act s 137 contrasted with Evidence Act s 98 – whether credibility, reliability or weight of evidence relevant to assessment of probative value – Crown appeal allowed
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application for leave to appeal to Court of Appeal from interlocutory order of trial judge – whether appeal lies against ruling on evidence – matter not raised by parties.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – matters to be considered in granting leave to appeal interlocutory decision in criminal proceedings – whether decision attended by sufficient doubt to warrant appellate intervention – whether any substantial injustice would result from refusal of leave – whether grant of leave would inappropriately fragment trial process – whether exceptional circumstances justified grant of leave.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision in criminal proceedings – conclusions open to trial judge – decision not attended by sufficient doubt to warrant appellate consideration – no injustice would result from refusal of leave – grant of leave would inappropriately fragment trial process – no exceptional circumstances justifying grant of leave – leave to appeal refused.
CRIMINAL LAW – EVIDENCE – Circumstances in which evidence of events improbable to have happened coincidentally may be admitted – s 98 of the Evidence Act 2011 (ACT) – accused charged with three robberies with various similarities – Crown application for evidence of each robbery to be admissible as “coincidence” evidence in relation to the other robberies – defence application for separate trials if Crown application dismissed – whether probative value of coincidence evidence substantially outweighed any prejudicial effect of the evidence – nature of prejudice required to be considered – no unfair prejudicial effect identified – no risk of properly instructed jury reasoning inappropriately having regard to nature of coincidence evidence – evidence admissible on coincidence basis – no need to consider application for separate trials.
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
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 – 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.
CONTRACT – breach – repudiation – franchise agreement – whether termination unlawful – whether breach by franchisor of essential term – willingness to perform only in manner substantially inconsistent with obligations
CONTRACT – breach – unreasonable restraint of trade
RESTITUTION – claim for work and labour done – flawed method of proving any loss suffered
TORT – inducement of breach of contract – attempt to establish case by inference
PRACTICE AND PROCEDURE – application to amend pleadings during trial – leave granted – date from which amendment to take effect – whether new and distinct cause of action – relation back effect of 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 – the coincidence rule – evidence taken on voir dire – ruling followed – questions to be addressed – requirement that evidence be of significant probative value – Evidence Act 2008 (Vic), s 98(1).
EVIDENCE – general discretion to exclude – Evidence Act 2008 (Vic), s 135.
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 – 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
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
EVIDENCE – Cumulative effect of evidence – whether trial judge failed to consider cumulative effect of three witnesses’ evidence prior to rejecting that evidence – whether corroborative evidence was in fact coincidence evidence and therefore limited in the use to which it could be put – whether appellant’s case so strong that appellate court should find his case proved
EVIDENCE – Standard of proof – whether trial judge was required, when considering the ‘gravity of the matters alleged’ pursuant to s 140 of the Evidence Act 1995 (Cth), to consider also the likelihood of their occurrence
EVIDENCE – Rule in Jones v Dunkel – whether rule was required to be applied
EVIDENCE – Rule in Browne v Dunn – whether rule properly applied
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.
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 – 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.
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 – 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
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.
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.
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
CRIMINAL LAW – Appeal – Conviction – Incest – Coincidence evidence – Possibility of concoction relevant to assessment of probative value – No real possibility of concoction – Coincidence evidence – Cross-admissibility limited to similar evidence.
CRIMINAL LAW – Appeal – Sentence – Incest – Same sentence for different counts.
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)
CRIMINAL LAW − Conviction − Incest − Indecent assault − Gross indecency − Indecent act with and in the presence of a person under the age of 16 − Two complainant stepdaughters
− Joinder − Whether substantial miscarriage of justice occasioned by trial of offences against both complainants in same proceeding − Evidence − Admissibility − Tendency and coincidence evidence − Jury directions − Whether trial judge adequately directed jury regarding use of charged and uncharged acts and elements of offences − Whether substantial miscarriage of justice occasioned by jury directions being given prior to charge.
57 Probative value is defined in the dictionary to the Evidence Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.
CRIMINAL LAW – Appeal against conviction – Sexual Offences – Children – Evidence – Coincidence evidence – Whether judge erred in direction on the cross-admissibility of the complainants’ evidence – Whether judge erred in direction on probability reasoning – Appeal allowed – Retrial ordered.
CRIMINAL LAW – Sexual offences by father with a number of children – Cross admissibility – Improbability of coincidence reasoning – Underlying unity – Quality of evidence considered – Adequacy of directions – Uncharged acts – Browne v Dunn direction – Whether breach of rule – Misdirection – Error to allude to recent invention –The Queen v Morrow (2009) 26 VR 526 applied.
CRIMINAL LAW – PARTICULAR OFFENCES – Multiple counts of arson.
CRIMINAL LAW – EVIDENCE – Cross-admissibility of evidence – Similar fact evidence – Propensity evidence – Coincidence evidence
CRIMINAL LAW – PROCEDURE – Appeal against conviction – Whether substantial miscarriage of justice – Application to sever counts refused – Exercise of discretion – Whether the charge was confusing and incomprehensible – Whether jury misdirected in relation to cross-admissibility of evidence – Whether ‘striking similarity’ or ‘signature’ required before evidence in relation to arson counts cross-admissible – Adequacy of direction on standard of proof – Video recording of charge reviewed – No substantial miscarriage of justice – Crimes Act 1958 (Vic), s 398A.
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 ”).
CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Judge ruled evidence of four complainants cross-admissible as tendency and coincidence evidence – No error of principle – Ruling reasonably open – KJM v The Queen (No 2)  VSCA 268 applied – Leave refused.
CRIMINAL LAW – Conviction – Sexual penetration and indecent acts with child under 16 years – Two complainants – Five counts on presentment – Jury returned not guilty verdicts on counts 1 to 3 (victim Y) – Reaction in court room to verdicts – Judge directed jury to disregard reaction – Jury subsequently returned majority verdicts of guilty on counts 4 and 5 (victim X) – Whether reaction in court room created risk that jury not impartial on counts 4 and 5 – Defence counsel did not seek discharge of jury for forensic reasons – No need to discharge jury – Directions sufficient – No error in taking verdicts on counts 1 to 3 before giving Black direction – Evidence of X not inherently unreliable because of young age – Evidence of brother supported evidence of X but not Y – Different verdicts explicable – Leave refused.
CRIMINAL LAW – Sentence – Indecent acts with child under 16 years – Two counts – Total effective sentence of three years and two months’ imprisonment with non-parole period of 18 months not manifestly excessive – No error in refusal to suspend sentence – Leave refused.
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.
(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  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.”
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  NSWCCA 189; (1999) 106 A Crim R 510.