CRIMINAL LAW – Particular Offences – offences against children – indecent assault on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Evidence Act 2011 (ACT) applies to an application to lead tendency evidence in relation to offences allegedly committed prior to the commencement of that Act
CRIMINAL LAW – Evidence – Coincidence evidence – Sexual offences committed against multiple complainants – Severance – Whether evidence of one complainant cross-admissible with evidence of other complainants – Judge’s charge on coincidence evidence – Velkoski v The Queen  VSCA 121, applied – Evidence Act 2008 , ss 98 and 101.
CRIMINAL LAW – importation of commercial and marketable quantities of border controlled drugs and precursors – indictment containing five charges – whether evidence relevant to counts 1, 2, 3 and 5 properly admitted as tendency or coincidence evidence with respect to count 4 – whether evidence significantly probative – relevance of dissimilarities – whether open to trial judge to deal with coincidence rule and tendency rule together
CRIMINAL LAW – importation of commercial and marketable quantities of border controlled drugs – meaning of “import” in s 300.2 of the Criminal Code 1995 (Cth) – “import” defined to include “deal with the substance in connection with its importation” – commercial quantity of heroin imported in container and held by freight forwarders in Sydney – whether inquiries made by appellant as to fees payable in order to release goods sufficient to amount to dealing – whether inquiries together with assertions of ownership sufficient to amount to dealing
CRIMINAL LAW – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways.
CRIMINAL LAW – Interlocutory appeal – Cultivating a narcotic plant in a quantity not less than the commercial quantity (2 charges) – Severance of charges – Evidence – Coincidence evidence – Whether evidence cross-admissible – Necessity of determining what evidence is admissible for what purpose on each charge – Prejudice – Evidence Act 2008 , ss 98 and 101 – Criminal Procedure Act 2009, ss 193, 295, 296, 297 and 300.
CRIMINAL LAW – application for extension of time to give notice of appeal against conviction and application for leave against sentence – where application for extension of time not opposed – where affidavit supporting extension of time unsatisfactory – discretionary power to extend time limit to be exercised having regard to the interests of justice in the case
CRIMINAL LAW – appeal against conviction – “context” evidence – where evidence admitted of poor relationship between applicant and complainant – where evidence not of prior sexual or other assaults against the complainant – whether trial judge erred in failing to give specific direction as to limited use to which evidence could be put – Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137
CRIMINAL LAW – appeal against conviction – where jury failed to reach unanimous decision on some charges – where trial judge gave majority verdict direction – where failure to examine juror on oath before giving direction – Jury Act 1977 (NSW), s 55F(2)(b)
CRIMINAL LAW – application for leave to appeal against sentence – whether fact that sexual assault occurred in home aggravating factor when applicant and complainant resided together at the relevant time – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
CRIMINAL LAW – where aggregate sentence to be reassessed – Court to re-exercise discretion to form its own judgment as to appropriate aggregate sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Points and Objections not Taken Below – evidence admitted in Magistrates Court was coincidence evidence as defined in Evidence Act – no compliance with Evidence Act notice requirements – no consideration by Magistrate of whether evidence had significant probative value – no consideration by Magistrate whether probative value of evidence substantially outweighed any prejudicial effect on defendant – no objection taken by defence counsel by reference to Evidence Act – failure to object not a waiver – evidence inadmissible because of Magistrate’s failure to consider probative value of evidence – appellant deprived of fair trial – evidence not necessarily inadmissible if Evidence Act provisions properly complied with – no finding that verdict unsafe and unsatisfactory – appeal upheld – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.
EVIDENCE – Admissibility and Relevancy – whether evidence is coincidence evidence – admissibility of coincidence evidence under Evidence Act – effect of failure to comply with statutory requirements for court to consider probative value of coincidence evidence and weigh probative value and prejudicial effect – evidence inadmissible because of lack of compliance with statutory requirements – evidence not necessarily inadmissible if statutory requirements complied with – matter remitted to Magistrates Court for further hearing and decision by different Magistrate.
CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death — Appellant pleaded guilty to alternative charge of dangerous driving causing death — Crown led evidence of appellant using heroin prior to offending and history of appellant’s heroin addiction — No evidence led to show causal link between taking heroin and offending — No tendency notice filed or application to dispense with filing of notice to lead evidence of appellant’s history of heroin addiction — Evidence irrelevant and highly prejudicial — Substantial miscarriage of justice — Appeal allowed – Retrial ordered – Patel v The Queen  HCA 29; (2012) 86 ALJR 954 applied
15 It follows from the above that not only was AS’s evidence of the appellant’s taking heroin before the accident irrelevant, but the evidence as to his longstanding drug addition was likewise irrelevant. It was, accordingly, inadmissible. But irrelevance was not the only problem associated with the Crown evidence as to the appellant’s drug addiction. Evidence that a person engages in a particular habit (scil. acts in a particular way), tendered to prove that he pursued that habit (scil. acted in a particular way) on a particular occasion, is tendency evidence, the admissibility of which is governed by s 97(1) of the Evidence Act 2008 . As such it is inadmissible unless the conditions precedent to its admissibility set out in ss 97(1)(a) and (b) and 101(2) are satisfied. It was required to be the subject of a notice to the appellant that the Crown would seek to rely upon it, it must have had significant probative value and that probative value must have substantially outweighed any prejudicial effect it may have had on the appellant.
16 The evidence as to the appellant’s drug habit was never the subject of a tendency evidence notice, nor was it the subject of any application by the Crown under s 100(1) of the Act for dispensation from that requirement. It was, on that score alone, inadmissible. This would have been so even if Dr O’Dell had proffered an opinion, concerning the effect upon the appellant’s driving of heroin use shortly before the accident, which supported the Crown case. In the circumstances the evidence of the appellant’s drug habit should not have been admitted to prove the likelihood of the appellant having taken heroin in the period immediately before the accident.
CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.
CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.
CRIMINAL LAW – Two counts of conspiracy to contravene s 1041A of Corporations Act 2001 (Cth) – 33 counts of contravening s 1041A of Corporations Act – Joinder of counts in one indictment – Severance – Admissibility of previous dealings as context evidence – Whether previous dealings admissible as tendency evidence – Cross-admissibility of evidence as context or tendency evidence – Elements of offences.
CRIMINAL LAW – evidence – sexually motivated murder of Asian woman -tendency evidence – evidence of sexual interest in Asian women – accused asserts that he has no interest in sex – accused asserts sexual dysfunction – evidence that accused watched “Asian pornography” – evidence that accused visited Asian prostitutes – evidence that accused “liked it rough” – evidence of the accused using “speed” during sexual activity – evidence of the accused’s Facebook “friends” – 90% of accused’s 110 friends “young teenage Asian females” – assessment of probative value – assessment of prejudicial effect
CRIMINAL LAW – Appeal – Conviction – Rape and indecent assault – Tendency evidence – Eight complainants – Whether evidence of individual complainants cross-admissible – Whether sufficient similarity or commonality in sexual acts or surrounding circumstances – Crown concession that evidence of two complainants not cross-admissible – Evidence of other complainants cross-admissible – Appeal allowed, retrial ordered – Velkoski v The Queen  VSCA 121 applied – Evidence Act 2008 ss 97, 101.
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Adequacy of judge’s charge – Trial judge’s responsibility to identify real issues and summarise relevant evidence – Whether defence case and evidence adequately summarised – Central issue was reliability of complainants – Jury charge sufficient – R v AJS  VSCA 288; (2005) 12 VR 563 applied – Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to have doubt – R v Klamo  VSCA 75; (2008) 18 VR 644, Greensill v The Queen (2012) 37 VR 257 applied – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Limits on cross-examination – Judge’s obligation to manage proceeding – Collateral evidence rule – Issues going to complainant’s credibility – Whether defence unfairly constrained – Limits appropriate – No unfairness – Papazoglou v The Queen (2010) 28 VR 644 applied.
CRIMINAL LAW – Appeal – Conviction – Trial – Witnesses – Prosecutor’s obligation to call – Applicant’s sons said to have been present when offences committed – Substantial time between offending and trial – Younger son had no recollection – Elder son had given evidence at earlier trial – No relevant recollection – Prosecution elected not to call either son – Both witnesses called by defence – Whether prosecution’s decision led to miscarriage of justice – No misuse by prosecution of opportunity to cross-examine – No miscarriage of justice.
CRIMINAL LAW – Appeal – Conviction – Evidence – Tendency evidence – Two complainants – Whether evidence cross-admissible – Whether significant probative value – Whether collusion reasonably possible – No evidence of collusion – No miscarriage of justice – Evidence Act 2008 ss 97, 101.
CRIMINAL LAW – Appeal – Conviction – Jury – Requirements of jury trial – Juror’s oath – Sufficiency of jury deliberations – Majority verdicts – Perseverance direction – Scope of ‘exclusionary rule’ – Note from jury to judge – One juror said not to be participating in deliberations – Whether individual juror required to participate in collective deliberation – Jury resumed deliberation after direction – No miscarriage of justice – Smith v Western Australia (2014) 250 CLR 473, Black v The Queen  HCA 71; (1993) 179 CLR 44 applied – Juries Act 2000 s 46(2) and sch 3.
CRIMINAL LAW – evidence – tendency evidence – admissibility – whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) – whether judicial directions may ameliorate any prejudicial effect
CRIMINAL LAW – evidence – context evidence – admissibility – whether evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995 (NSW)
APPEAL AND NEW TRIAL – appeal – general principles – interference with discretion of court below – whether decision involved a discretionary exercise of power
COURTS AND JUDICIAL SYSTEM – intermediate appellate courts – interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence – different interpretations alleged as to meaning of “significant probative value” – Velkoski v The Queen  VSCA 121 held “significant probative value” requires a higher degree of similarities to that required by this Court – whether difference exists – whether difference needs to be addressed and reconciled – Evidence Act 1995 (NSW), ss 97, 98 – Evidence Act 2008 (Vic), ss 97, 98
EVIDENCE – admissibility – tendency and coincidence evidence – similar circumstances alleged in separate and independent complaints against applicant – whether evidence had “significant probative value” – whether trial judge failed to identify issues at trial to determine probative value – degree of specificity of conduct in determining probative value of tendency or coincidence evidence – relevance of similarities in determining probative value of tendency evidence – whether probative value of evidence outweighed any prejudicial effect – Evidence Act 1995 (NSW), ss 97, 98, 101(2)
CRIMINAL LAW – Murder – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to accused – ss 97, 101 Evidence Act, 2008 (Vic)
EVIDENCE – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer in a murder trial – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to the accused – ss 97, 101 Evidence Act, 2008 (Vic)
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 – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.
CRIMINAL LAW – conviction appeal – historical sexual offences – aggravated indecent assault and aggravated sexual intercourse without consent – admissibility of other uncharged sexual acts as context evidence – whether such evidence “tendency evidence” – whether probative value of evidence outweighed by its unfair prejudice – need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences – evidence necessary to explain failure of victim to complain at the time of the offending – reasonable assumption that jury would follow judicial directions – evidence of uncharged acts admissible as context evidence.
CRIMINAL LAW – attempt to import marketable quantity of heroin, dealing with money the proceeds of crime (C’th) – supply large commercial quantities of heroin, methylamphetamine (NSW) – appeal against conviction – joint trial of counts – whether evidence cross-admissible – whether defences prejudiced
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.
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
CRIMINAL LAW — Appeal — Conviction — Sexual penetration of child under 16, indecent act with child under 16 — Two complainants — Whether evidence crossadmissible — Whether tendency evidence — Whether probative value substantially outweighed any prejudicial effect it might have — Acquittal on two of four counts relating to first complainant — Whether verdicts inconsistent — Appellant cross-examined about whether complainants were lying — Withdrawal and apology by prosecutor — Directions by judge — Jury discharge application refused — Whether miscarriage of justice — Appeal dismissed — Evidence Act 2008 (Vic) ss 97, 101.
EVIDENCE — Tendency evidence — Sexual offences — Evidence of two complainants — Lapse of time between incidents — Whether evidence of one complainant probative of tendency — Whether probative value substantially outweighed any prejudicial effect — R H B v The Queen  VSCA 295; G B F v The Queen  VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 – whether misdirection in summing up to jury – whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents.
CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth – whether error from prejudice regarding the admission of tendency and coincidence evidence.
CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth – application of proviso in s 6(1) of the Criminal Appeal Act 1912 – whether error by trial judge such as to make it inappropriate to apply s 6(1).
CRIMINAL LAW – appeal – sentencing – considerations – whether trial judge failed to take into account or give sufficient weight to delay – severity of sentence.
CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.
CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following real possibility of collusion could not be excluded – Retrial.
CRIMINAL LAW – indecent assault of person under the age of 16 – evidence showing sexual interest of accused in complainant – requirement for use as tendency evidence not satisfied – jury invited to use evidence for impermissible tendency reasoning – convictions quashed
CRIMINAL LAW – conviction appeal – Appellant a former Catholic priest – 11 counts of indecently assaulting four different victims over a five year period – whether all counts should have been tried together – whether trial judge erred in permitting Crown to rely upon tendency evidence – whether evidence of hypnosis should have been allowed in relation to one of the complainants and a witness – whether cross-examination should have been permitted under the Criminal Procedure Act 1986 (Sexual Assault Communications Privilege) – whether evidence of psychiatrist retained by Appellant was properly rejected – whether jury should have been discharged after wrongful admission of evidence – whether trial judge incorrectly directed jury as to unanimous verdict – conviction appeal dismissed – SENTENCE APPEAL – whether Appellant subjected to extra curial punishment and its relevance – threats made against Appellant’s wife and children – whether proper regard taken of Appellant’s state of health – relevance of conditions under which sentence being served – relevance of Appellant’s age – relevance of Appellant’s previous good character – whether proper regard had to sentencing practices at time of the offending – sentence not manifestly excessive – appeal dismissed.
CRIMINAL LAW – indecent assault of person under the age of 16 – evidence showing sexual interest of accused in complainant – requirement for use as tendency evidence not satisfied – jury invited to use evidence for impermissible tendency reasoning – convictions quashed
CRIMINAL LAW – indecent assault of person under the age of 16 – adequacy of directions to jury concerning a motive to lie on the part of the complainant and his mother
Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency evidence under the uniform evidence law – Generally – Whether possibility of concoction or contamination – Whether relevant to probative value or risk of unfair prejudice.
CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown Application to adduce – whether proposed tendency evidence of significant probative value – whether proposed tendency evidence too ambiguous to be of significant probative value – whether proposed tendency evidence admissible for another purpose – application granted in part
CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found
CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence
EVIDENCE LAW – evidence of unfired cartridges located at home of accused – unfired cartridges found whilst accused in hospital – unfired cartridges of same calibre as ammunition found at scene – majority of unfired cartridges of same make as ammunition found at scene – whether evidence relevant – whether probative value of evidence outweighed by danger of unfair prejudice – evidence to be admitted
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
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 – EVIDENCE – Tendency Evidence – Crown application to adduce – Evidence capable of establishing tendencies – Probative value of the tendency evidence substantially outweighs its prejudicial value – Trial will not be excessively complex despite multiple complainants and counts where tendencies limited – Counts that do not support the tendencies are severable – Application conditionally allowed
CRIMINAL LAW – EVIDENCE – Coincidence Evidence – Crown application to adduce –Probative value of evidence does not substantially outweigh prejudice – Value of evidence as coincidence evidence not as substantial as value as tendency evidence – Application refused
ADMINISTRATIVE LAW – Coroner – inquest into the death of a child – Reportable death – Obligation to find, if possible, the cause of death and circumstances in which the death occurred – Coroner excluded statements about the circumstances of the deaths of five other children – Propensity evidence – Whether statements were relevant considerations that the Coroner was obliged to take into account – Pfennig v The Queen  HCA 7; (1995) 182 CLR 461 – Section 67(1)(b) and s 67(1)(c) of the Coroners Act 2008 (Vic).
CORONER – Whether witness should be compelled to give evidence under s 57(4) of the Coroners Act 2008 (Vic) – Reliability of the evidence relevant to whether the ‘interests of justice’ required that witness give evidence – Inquisitorial character of coronial inquest – Weinstein v Medical Practitioners Board of Victoria  VSCA 193; (2008) 21 VR 29 – Distinction between ‘salient facts’ and mere ‘pieces of evidence’ – Macedon Ranges Shire Council v Romsey Hotel Pty Ltd  VSCA 45; (2008) 19 VR 422.
STATUTORY INTERPRETATION – Section 57(3) of the Coroners Court Act 2008 (Vic) – Whether Coroner obliged to inform witness that he would be given a certificate of immunity if he willingly gave evidence – Appeal allowed.
CRIMINAL LAW – 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 – Generally – Possibility of concoction – Contamination in sexual cases – Whether relevant to probative value or risk of unfair prejudice.
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 – Appeal – Conviction – Murder – Applicant found guilty of murdering his wife – Evidence adduced at trial of representations made by deceased to effect that applicant had physically and emotionally abused her – Crown sought to use evidence as tendency evidence – Whether evidence fell within exceptions to hearsay rule provided for in ss 65(2)(b) and (c) of Evidence Act 2008 – Whether evidence could be used as tendency evidence – Whether Crown’s failure to call as witnesses interpreters who interpreted conversations in which representations were said to have been made by deceased gave rise to miscarriage of justice – Whether directions given by trial judge tended to reverse onus of proof – Appeal allowed – Evidence Act 2008 ss 65, 66A, 67(1), 97(1), 101(2), 135 and 137 – Conway v The Queen  FCA 461; (2000) 98 FCR 204 – R v Mankotia  NSWSC 295 – Williams v The Queen  FCA 1868; (2000) 119 A Crim R 490 – R v Ambrosoli  NSWCCA 386; (2002) 55 NSWLR 603 – Gaio v The Queen  HCA 70; (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB  29 VR 110 – R v LRG (2006) 16 VR 89 – Murray v The Queen  HCA 26; (2002) 211 CLR 193 – Liberato v The Queen  HCA 66; (1985) 159 CLR 507.
CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165
CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown was highly prejudicial to the accused – the probative value of the evidence did not substantially outweigh the prejudicial effect – application refused
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Defence application to sever the indictment – found that there would be an unacceptable risk of prejudice to the accused if counts were heard in one trial – indictment severed – application allowed
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.