Category Archives: s. 101

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

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

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

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

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

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

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

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

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

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

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

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

DSJ v R; NS v R [2014] NSWCCA 77 (13 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/77.html

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Miles v R [2013] ACTCA 52 (20 December 2013)

http://www.austlii.edu.au/au/cases/act/ACTCA/2013/52.html

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.

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

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

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

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

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

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

CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript

EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning

CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied

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

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

CRIMINAL LAW — Appeal — Conviction — Sexual penetration of child under 16, indecent act with child under 16 — Two complainants — Whether evidence crossadmissible — Whether tendency evidence — Whether probative value substantially outweighed any prejudicial effect it might have — Acquittal on two of four counts relating to first complainant — Whether verdicts inconsistent — Appellant cross-examined about whether complainants were lying — Withdrawal and apology by prosecutor — Directions by judge — Jury discharge application refused — Whether miscarriage of justice — Appeal dismissed — Evidence Act 2008 (Vic) ss 97, 101.

EVIDENCE — Tendency evidence — Sexual offences — Evidence of two complainants — Lapse of time between incidents — Whether evidence of one complainant probative of tendency — Whether probative value substantially outweighed any prejudicial effect — R H B v The Queen [2011] VSCA 295; G B F v The Queen [2010] VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.

GIOURTALIS Angelos v R [2013] NSWCCA 216 (25 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/216.html

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.

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 (27 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/272.html

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.

BJS v R [2013] NSWCCA 123 (24 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/123.html

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.

Colquhoun v R (No 1) [2013] NSWCCA 190 (22 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/190.html

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

R v JSK [2013] ACTSC 147 (2 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/147.html

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

Doolan v R [2013] NSWCCA 145 (3 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/145.html

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

R v Jacobs (No 6) [2013] NSWSC 947 (27 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/947.html

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

R v XY [2013] NSWCCA 121 (22 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/121.html

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 [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] 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

R v Edwin [2013] ACTSC 6 (4 February 2013)

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

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown application to adduce – Evidence capable of establishing tendencies – Probative value of the tendency evidence substantially outweighs its prejudicial value – Trial will not be excessively complex despite multiple complainants and counts where tendencies limited – Counts that do not support the tendencies are severable – Application conditionally allowed

CRIMINAL LAW – EVIDENCE – Coincidence Evidence – Crown application to adduce –Probative value of evidence does not substantially outweigh prejudice – Value of evidence as coincidence evidence not as substantial as value as tendency evidence – Application refused

Priest v West & Anor [2012] VSCA 327 (20 December 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/327.html

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 [1995] 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 [2008] VSCA 193; (2008) 21 VR 29 – Distinction between ‘salient facts’ and mere ‘pieces of evidence’ – Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] 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.

R v MEYN John Michael (No 2) [2012] NSWSC 1449 (21 November 2012)

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

CRIMINAL LAW – Evidence – tendency – domestic homicide – murder – application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship – alleged attempt to strangle previous partner’s male colleague – alleged attempt to strangle previous partner – accused caused self harm following dispute with previous partner – similarity of acts – distance in time – whether significant probative value to facts in issu

Dibbs v The Queen [2012] VSCA 224 (19 September 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/224.html

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.

Azizi v The Queen [2012] VSCA 205 (30 August 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/205.html

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 [2000] FCA 461; (2000) 98 FCR 204 – R v Mankotia [1998] NSWSC 295 – Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 – R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603 – Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB [2010] 29 VR 110 – R v LRG (2006) 16 VR 89 – Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 – Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

R v Gale; R v Duckworth [2012] NSWCCA 174 (17 August 2012)

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

CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165

R v Fitzpatrick [2012] ACTSC 107 (13 July 2012)

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/107.html

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

Evidence Act 1995 (Cth), ss 97

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

R v Johnston [2012] ACTSC 89 (8 June 2012)

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

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

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

Evidence Act 1995 (Cth), ss 97

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

B S J v The Queen [2012] VSCA 93 (17 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/93.html

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.

McCarthy v R [2012] ACTCA 18 (28 March 2012)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/18.html

CRIMINAL LAW – jurisdiction practice and procedure – bail on appeal – jurisdiction to grant bail incidental to power to stay proceedings – Supreme Court Act 1933 (ACT) s 37Q – sentence does not continue to run when appellant on bail.

CRIMINAL LAW – jurisdiction practice and procedure – bail – special or exceptional circumstances – pre-trial delay not sufficient to justify bail – strength of appeal grounds insufficient to justify bail – bail application dismissed.

Middendorp v The Queen [2012] VSCA 47 (22 March 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/47.html

CRIMINAL LAW – Conviction – Defensive homicide – Whether tendency evidence probative on count of murder and lesser alternative of defensive homicide – Probative value of tendency evidence to objective dimension of self-defence belief – Extent to which similarity between tendency evidence and offending conduct is necessary – Tendency evidence and credibility of applicant – Directions to jury on permissible use of tendency evidence – (VIC) Crimes Act 1958 ss 9AC, 9AD – (VIC) Evidence Act 2008 ss 97, 101 – Application for leave to appeal against conviction refused.

CRIMINAL LAW – Sentence – 12 years head sentence and eight years non-parole period – Specific errors arising from factual findings and approach to Victim Impact Statement – Manifest excess – DPP v Edwards [2009] VSCA 232 considered – Court not persuaded different sentences should be imposed despite specific errors – (VIC) Criminal Procedure Act 2009 s 281(1)(b) – Appeal dismissed.

DSJ v R; NS v R [2012] NSWCCA 9 (17 February 2012)

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

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

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

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

R v Meyboom [2012] ACTCA 2 (31 January 2012)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/2.html

APPEAL AND NEW TRIAL – in general and right of appeal – leave to appeal out of time – principles on which leave should be granted – explanation for delay – whether miscarriage of justice – leave refused.

APPEAL AND NEW TRIAL – practice and procedure – when time for appeal begins to run in criminal matters – Court Procedures Rules 2006 (ACT) Div 5.4.7 – meaning of conviction.

APPEAL AND NEW TRIAL – practice and procedure – cross appeal – whether conviction appeal can be cross-appeal against sentence appeal – need for fresh appeal.

R R v The Queen [2011] VSCA 442 (16 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/442.html

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.

Tasmania v Martin (No 2) [2011] TASSC 36 (23 June 2011

http://www.austlii.edu.au/au/cases/tas/supreme_ct/2011/36.html

Criminal Law – Procedure – Information, indictment or presentment – Joinder – By statute – Same facts or series of offences of same or similar character – Sexual offences against a young person – Joinder of count of possession of child exploitation material – Whether offences of same or similar character.
R v Carr [2003] TASSC 123; R v May [2007] QCA 333, applied.

Aust Dig Criminal Law [3075]

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency under uniform evidence law – Other cases – Sexual offences against a young person – Admissibility of evidence of possession of child pornography – Whether evidence of significant probative value – Whether evidence should be excluded.
R v PWD (2010) 205 A Crim R 75; CGL v DPP [2010] VSCA 26; (2010) 24 VR 486, applied.

Aust Dig Criminal Law [2782]

Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – For particular purpose – Rebuttal of possible defence – Particular cases – Sexual offences against young person – Out of court statements by accused of abhorrence of sexual intercourse with young persons – Evidence of possession of child pornography admissible for purposes of context and credibility.

Aust Dig Criminal Law [2784]

Criminal Law – Evidence – Relevance – Particular cases – Sexual offences – Statutory prohibition except with leave on evidence of the sexual experience of the complainant – Leave not to be granted unless Court satisfied the evidence has direct and substantial relevance to a fact or matter in issue – Meaning of “direct and substantial relevance.”

Evidence Act 2001 , s194M(2).
Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374; VOT v Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284, applied.

Aust Dig Criminal Law [2675]

Criminal Law – Evidence – Relevance – Particular cases – Sexual offences against young person – Belief of accused as to age of complainant relevant to all counts – Offences committed in the course of complainant’s work as a prostitute – Relevance of evidence of other clients of complainant as to observations and belief about age.
Simmons (1931) 23 Cr App R 25; USA v Yazzie 976 F 2d (9th Cir 1992), considered.
Aust Dig Criminal Law [2675]

FB v Regina; Regina v FB [2011] NSWCCA 217 (30 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/217.html

CRIMINAL LAW – appeal against conviction – appellant convicted of aggravated sexual assault – admission of tendency evidence- tendency evidence concerned a further sexual assault – possibility of concoction between victims – media reports concerning appellant’s misconduct – possibility of contamination – ground dismissed

CRIMINAL LAW – appeal against conviction – miscarriage of justice – incompetence of counsel – failure of legal representatives to adduce evidence of media reports concerning appellant’s misconduct – media article relevant to admission of tendency evidence – ground dismissed

CRIMINAL LAW – appeal against conviction – credibility of complainant – inconsistent statements concerning alleged sexual assault – absence of complaint by victim when questioned – judge gave directions in relation to absence of complaint – trial judge found complainant had reason for denying sexual assault – ground dismissed

Evidence Act 1995 (NSW) ss 97, 101

RHB v The Queen [2011] VSCA 295 (27 September 2011

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/295.html

CRIMINAL LAW – Application for leave to appeal against interlocutory decision – Evidence – Admissibility – Tendency and coincidence evidence – Whether sexual offences committed against accused’s daughters admissible as tendency evidence in trial of accused of sexual offence committed against granddaughter – Application dismissed – Evidence Act 2008 s 97(1), 101.

Regina v Lawrence Holt [2001] NSWSC 232 (30 March 2001)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2001/232.html

8 The foregoing general positions of, respectively, the Crown and the accused having been established, application was made for a series of hearings on the voir dire to the end of testing the admissibility in the Crown case at trial of various pieces of evidence. Voir dire hearings were granted accordingly, and all of them were dealt with by way of documentary evidence. In all, sixteen separate such hearings were conducted. Eleven of those hearings concerned evidence which the Crown seeks to have admitted as tendency evidence; a further four hearings concerned hearsay evidence which the Crown seeks to have admitted as relationship evidence; and one hearing concerned admissions made by the accused to investigating police.

SWC v The Queen [2011] VSCA 264 (13 September 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/264.html

CRIMINAL LAW – Conviction – Sexual penetration of a child aged 16 or 17 under appellant’s care, supervision or authority (Counts 1, 2 and 5 against niece) – Indecent act with child under 16 (Counts 3 and 4 against daughter) – Niece gave evidence of uncharged acts – Relevant to context – No objection by defence counsel who wanted evidence admitted to use in cross-examination of niece – Whether evidence received as tendency evidence – Whether judge required to direct jury of need to be satisfied beyond reasonable doubt of uncharged acts alleged by niece before relying on such acts in relation to counts 1, 2 and 5 – R v Sadler [2008] VSCA 198; (2008) 20 VR 69 considered – Direction not required in the circumstances – Whether judge failed to tell jury it could not use niece’s evidence of uncharged acts in relation to counts 3 and 4 – Appeal dismissed.

3 The trial was relevantly governed by the provisions of the Evidence Act 2008 (‘the Act’). In point were ss 97, 100 and 101 of that Act, not s 398A of the Crimes Act 1958.

K J M v The Queen [2011] VSCA 268 (7 September 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/268.html

CRIMINAL LAW – Appeal – Interlocutory appeal – Murder – Victim was domestic partner – Self-defence raised – Accused’s state of mind in issue – Whether evidence of alleged violence against former partner admissible as tendency – Appeal allowed in part – Evidence Act 2008 (Vic) ss 97, 101.

CRIMINAL LAW – Appeal – Interlocutory appeal – Tendency evidence – Ruling on admissibility – Nature of appellate review on interlocutory appeal.