CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript
EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning
CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied
CRIMINAL LAW – conviction appeal – supply of prohibited drug – credibility evidence – coincidence evidence
CRIMINAL LAW – Crown appeal against ruling excluding coincidence evidence – Crown appeal against interlocutory judgment severing counts on indictment – whether ruling eliminated or substantially weakened the prosecution case – Criminal Appeal Act 1912, 2 5F.
EVIDENCE – admissibility – coincidence evidence – test – relevance – significant probative value – Evidence Act 1995 , ss 55 and 98.
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.
CONSUMER LAW – unconscionability – entry into consumers’ homes by ruse – sale of vacuum cleaners – breaches of State and Commonwealth consumer protection legislation – whether unconscionable
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
CRIMINAL LAW – “coincidence evidence” – effect of s 98 and s 101 Evidence Act – exclusion of evidence – effect of s 137 Evidence Act
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
Evidence Act 1995 (Cth), ss 97
Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,
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.
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
PERSONAL INJURY – supply of contaminated food – Salmonella poisoning – factual contest as to source of supply.
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
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.
CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Sexual offences – Evidence – Tendency and coincidence evidence – Evidence cross-admissible – Leave refused.
CRIMINAL LAW – Applicant convicted of numerous counts of arson and attempted arson – Application for leave to appeal against conviction – Whether judge erred in admitting coincidence evidence and in directing the jury about coincidence evidence – Application for leave to appeal against sentence – Whether sentence manifestly excessive.
CRIMINAL – conviction appeal – admissibility of evidence of prior criminal conduct as “background” evidence – not tendency evidence – failure of trial judge to take into account risk that jury would engage in tendency reasoning – failure to warn jury against tendency reasoning – EXPERT EVIDENCE – improper cross examination of expert called by the appellant so as to place inadmissible hearsay opinion of another expert before the jury – appeal allowed.
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
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  NSWCCA 437; 158 A Crim R 504. The contents of a properly drafted notice for tendency evidence was considered in Gardiner v R  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.
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.
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
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
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
CRIMINAL LAW – Appeal – Interlocutory appeal – 11 counts of indecent assault and four counts of taking part in an act of sexual penetration with a child under 10 – Refusal to exercise discretion to order permanent stay of proceedings – Applicant previously convicted of indecent assault of one of the complainants – Subsequent prosecution for further offences committed against same complainant and her sister during similar but not same period not oppressive – Unavailability of record of interview, period of delay and use of previous conviction as tendency evidence did not make subsequent proceedings an abuse of process – Jago v District Court of New South Wales  HCA 46; (1989) 168 CLR 23, applied.
CRIMINAL LAW – Appeal – Interlocutory appeal – Admissibility of previous conviction and uncharged acts as tendency or coincidence evidence – Earlier indecent assault of significant probative value – Consideration of specificity as to the nature of the conduct in question required to be admissible.
CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Coincidence evidence – Three fires lit in same area within short period – Whether evidence cross-admissible – Whether requisite degree of similarity – Whether ‘significant probative value’ – Animosity between accused and victim of each fire – Improbability of coincidence – Evidence cross-admissible – Application refused – Evidence Act 2008 (Vic) ss 98, 101.