CRIMINAL LAW Evidence Accused intending to call character evidence Whether prosecution would be permitted to respond by evidence of other uncharged acts Advance ruling Evidence Act 2008 (Vic) ss 110, 112, 192, 192A.
CRIMINAL LAW – appeal against conviction – application for extension of time years after conviction entered – applicable principles – Criminal Appeal Act 1912 (NSW) s 6 – consideration of the prospects of success of the grounds of appeal – whether directions of the trial judge in relation to complaint violated the principle in Palmer v The Queen – whether evidence of flight should have been admitted at first instance – whether trial judge erred in his directions regarding evidence of flight – application of considerations analogous to the proviso
CRIMINAL LAW – Trial – Murder – Self-defence – Family violence – Whether family violence ‘alleged’ – Whether defence inconsistent with record of interview – Whether prosecutor bound to call Crown witnesses named on indictment – Whether Crown witnesses may be cross-examined on family violence – Questioning allowed – Crimes Act (Vic) 1958 s 9AH.
EVIDENCE – Criminal trial – Tendency evidence – Hearsay evidence – Evidence to be adduced in cross-examination – Nature and purpose of evidence identified in defence written submission – Whether further notice required – Evidence Act 2008 (Vic) ss 67, 97, 100.
EVIDENCE – Criminal trial – Murder – Self-defence – Family violence – Advance ruling – Character evidence – Proposed cross-examination of Crown witnesses about relationship between accused and deceased – Whether adducing evidence of accused’s behaviour in response to family violence would put his character in issue – Whether proposed Crown evidence of other conduct admissible – Whether ruling premature – Ruling given – Character not in issue – Crimes Act 1958 (Vic) s 9AH, Evidence Act 2008 (Vic) ss 110, 192A.
EVIDENCE – Criminal trial – Hearsay – Exception to hearsay rule – Statements by accused to witness about facial injuries – Whether accused’s statements about cause of injuries within exception – Whether admissible for non-hearsay purpose – Evidence inadmissible – Subramaniam v Public Prosecutor  1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.
CRIMINAL LAW – appeal against conviction – three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 – one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 – convicted of four counts of aggravated indecent assault – alleged that the jury verdicts are unreasonable and could not be supported by the evidence – all relevant matters were left open to the jury – upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged – alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant – failure by trial counsel to seek directions – application of Rule 4 of the Criminal Appeal Rules – trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant – jury accepted the complainant as a truthful and reliable witness – benefit of the jury seeing the complainant give evidence – no miscarriage of justice arising from the absence of good character evidence and directions on good character – failure by trial counsel to seek directions on good character – application of Rule 4 of the Criminal Appeal Rules – proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made – appeal dismissed
CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.
CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against a child under the age of 16 years – Whether trial miscarried because of counsel’s failure to adduce evidence of the appellant’s good character – Whether trial miscarried because of counsel’s failure to object to evidence of an expert – Crown concession – Appeal allowed – Convictions quashed and retrial ordered.
CRIMINAL LAW – Conviction for sexual offences with child – Good character evidence – Section 110 of the Evidence Act 2008 – Opinion evidence as distinct from evidence of reputation admissible – Evidence of good character ‘in a particular respect’ – Directions to the jury that such offences committed in private undermined evidence of good character – Appeal allowed – Convictions quashed and retrial ordered.
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
CRIME – appeal against conviction – obtain money by deception – obtain money by false or misleading statements – whether charges on indictment consistent with offence in respect of which appellant surrendered for extradition – whether trial judge should have directed acquittal – whether miscarriage of justice – whether trial judge failed to direct jury on limb of indictment – whether jury verdicts unreasonable, unsafe or unsatisfactory – whether tendency direction should have been given – s 97(1) Evidence Act – appeal against sentence – whether non-parole period uncertain – whether failure to consider special circumstances – whether allowance for rehabilitation – whether manifestly excessive – totality principle.
CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen  HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi  NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.
CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Police officer – Jury question as to whether applicant was prevented from calling character witnesses – Whether question revealed impermissible Jones v Dunkel reasoning – Whether jury should have been discharged – Whether judge’s direction adequate – Whether conviction unsafe and unsatisfactory – Crofts v The Queen  HCA 22; (1996) 186 CLR 427, applied – Dyers v The Queen  HCA 45; (2002) 210 CLR 285, Azzopardi v the Queen  HCA 25; (2001) 205 CLR 50, discussed – Application for leave to appeal granted only on ground of adequacy of direction – Appeal dismissed.
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  TASSC 123; R v May  QCA 333, applied.
Aust Dig Criminal Law 
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  VSCA 26; (2010) 24 VR 486, applied.
Aust Dig Criminal Law 
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 
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  SASC 374; VOT v Western Australia  WASCA 102; (2008) 184 A Crim R 284, applied.
Aust Dig Criminal Law 
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 
CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault – Whether evidence of uncharged acts thereby made admissible.
Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192
CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted over objection – Requirements for admission as tendency evidence not satisfied – Whether evidence admissible as context evidence – Whether probative value outweighed by danger of unfair prejudice – Whether proviso should be applied.
Evidence Act 1995 ss 97, 101, 110
practice and procedure
note from juror about character witness
note not marked and contents not read onto transcript
note returned to jury to discuss
evidence of good character
jury directed to consider if otherwise a doubt about guilt
robbery with corporal violence
extent of knowledge
Appeal against conviction – insider trading – appellant found guilty of contravening s1002G(2) Corporations Act 2001 – Whether miscarriage of justice – actual or ostensible bias of trial judge – former professional association – whether “personal animosity” involved in sentence – Whether trial judge erred in not directing verdict of acquittal – meaning of “information” – possession of information as particularised – materiality – Admissibility of evidence – relevance – prejudicial/probative value – medical evidence as to witness’ capacity to give reliable evidence or to present more attractively – Whether summing up unfair – judicial comment/warning – Whether verdict unreasonable – Fitness to stand trial – brain tumour – frontal lobe dysfunction – appellant’s mental state – conduct at trial – credibility – expert evidence – mental element of offence – Fresh evidence of undiagnosed meningioma – relevance on appeal to issues of fitness to stand trial, miscarriage stemming from inappropriate behaviour, mens rea and sentence – Equality before the law – law’s concerns regarding fitness is with capacity to understand and follow proceedings not with maximising capacity to present as attractive personality – sentencing in “white collar” criminal matters – court’s duty not to be swayed by “community attitudes” in particular cases as promoted by media – Appeal against sentence – whether sentence manifestly excessive – whether miscarriage of sentencing judge’s discretion – insider trading not a “victimless” crime – appellant’s public persona – good character – personal and general deterrence – finding of “contemptuous arrogance” – no contrition – impact of fresh evidence as to appellant’s medical and mental state where absence of evidence as to any change of attitude by prisoner – D
Evidence Act 1995 ss102-110
Criminal Law and Procedure – Summing Up – Character – Requirement to explain to jury use that may be made of evidence
Criminal appeal – kidnapping and sexual assault in company – separate trial applications – evidence of prior convictions – whether good character had been raised – identification evidence – directions on identification – whether defence submissions unsupported by evidence impacted upon fair trial for co-accused – judicial response thereto – whether warning about unreliability of evidence of co-accused appropriate – directions in relation to failure to testify – whether comment” infringed Evidence Act, s20(2) – whether address of counsel for one defendant caused co-accused’s trial to miscarry – whether verdicts unreasonable – evidence that medical examination of complaints was “consistent” with their history of assaults. (D)
Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2)
CRIMINAL LAW – CONVICTION – appellant contended that the trial judge failed to adequately and properly direct the jury in relation to the defence of provocation under s 23 Crimes Act 1900 (NSW) – appellant further submitted that there were irregularities in the conduct of the trial resulting in the jury being mistaken or misled and that the consequent finding that the appellant was guilty of murder was a miscarriage of justice
Held that in summing up to the jury the trial judge directed that the s 23(2)(a) test was a subjective one which called for a loss of self-control on the part of the accused – the trial judge also instructed the jury that the s 23(2)(b) test was an objective one which required the jury to consider the reaction of an ordinary person in the position of the accused – held that the trial judge did not err in summing up to the jury and that it was reasonably open to the jury to find that there was no provocation.
Held that there was nothing in the trial judge’s summing up which had the potential to mislead the jury and consequently there was no miscarriage of justice.
Criminal law – sexual intercourse with a person under the age of ten years – indecent assault of a person under the age of ten years – whether open to jury to be satisfied beyond reasonable doubt of guilt of appellant; Criminal law – whether trial counsel incompetent; Criminal law – whether evidence correctly admitted; Criminal law – whether accused raised good character – whether discretion to allow Crown to adduce evidence in rebuttal of good character miscarried.
APPEAL AGAINST CONVICTION
joint criminal enterprise
directions on inferences
directions given by way of example
exact words ‘hypothesis consistent with innocence’ not used
exact words ‘only rational inference’ not used
whether miscarriage of justice resulted from Crown comments on offender’s good character
comments indicating that the jury could place less weight on offender’s good character
APPEAL AGAINST SENTENCE
whether error in assessment of culpability
whether offence correctly assessed as being above the mid-range of seriousness
level of involvement in the joint criminal enterprise
whether planning and offence committed in company were aggravating factors
Criminal Law – Practice and Procedure – Omission by defence counsel to lead character evidence – whether miscarriage of justice resulted – whether directions on consent erroneous or misleading – Sentence – relevance of character evidence – failure of judge to refer to special circumstances in setting non-parole period.
Evidence Act 1995 – ss 110(2), 137
Conviction appeal – omission from summing up of direction on element of offence – Rule 4 and application of proviso – direction on accused’s good character – no fixed formula – no substantial miscarriage of justice.
Criminal law – Evidence – Character evidence – Evidence of accused’s good character adduced – Relevance of character evidence to propensity to commit offence charged – Relevance of character evidence to accused’s credibility – Directions to jury – Whether directions about use of character evidence mandatory.
Evidence – Similar facts – Criminal trial – Admissibility – Accused charged with sexual offences against three boys – Whether evidence in relation to count involving one boy admissible in relation to those involving others.
Criminal Procedure – Trial – Separate trial – Separate but similar offences – Charges in relation to different people – Possibility of concoction.
Criminal law – Sexual offences – Corroboration – Character evidence – Evidence of similar sexual conduct in relation to a witness – Whether evidence capable of amounting to corroboration – Whether failure by trial judge to direct jury as to permissible use of evidence amounted to a miscarriage of justice.
Criminal law – Similar fact evidence – Relationship between corroboration and propensity evidence – Need for warning to jury as to use and non-use – Basis of admissibility of similar fact evidence – Possibility of concoction.
Criminal law – Person charged being a witness – Questions relevant to proof that offence committed – Tending to show also that person of bad character – Whether admissible – Crimes Act 1958 (Vict.), s. 399 (e).
Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Miscarriage of justice – Particular circumstances involving miscarriage – Misdirection and non-direction – Misdirection as to consent.
Weiss v R  HCA 81; (2005) 80 ALJR 444, followed.
Aust Dig Criminal Law 
Criminal Law – Evidence – Evidentiary matter relating to witnesses and accused persons – Evidence of sexual experience, reputation and morality – Credibility – Character.
Evidence Act 2001 (Tas), ss102, 104(2), 110, 112.
Aust Dig Criminal Law 
CRIMINAL LAW – appeal against conviction and sentence of the Supreme Court – recklessly inflicting grievous bodily harm – grounds for appeal – error of law – statements from Crown witness unfairly prejudiced the accused – cross-examination of accused as to prior criminal history – miscarriage of justice – onus of proof.
EVIDENCE – admissibility of evidence as to the bad character and criminal propensity of the accused – whether the probative value of such evidence substantially outweighs the unfair or prejudicial effect to the accused – putting the character of the accused in issue – the Court’s discretion to grant leave to admit evidence of the prosecution to rebut evidence of the accused’s good character – admissibility of prior inconsistent statement – false denial of having been involved in the offence – consciousness of guilt – whether character evidence of the accused must be adduced by or on behalf of the accused rather than by the Crown in cross-examination – whether the Crown’s rebuttal of character evidence need be confined to those aspects of character raised by the accused.
WORDS & PHRASES – “adducing evidence”.
Crimes Act 1900 (ACT), ss47, 19, 20
Evidence Act 1995 (Cth), ss97, 101, 102, 103, 104, 108(3), 110, 112, 135, 137, 190(1)
Evidence – Admissibility and relevance – Trial judge refusing to allow accused to raise character in part – whether it gave rise to miscarriage of justice.
Evidence Act 1995 – ss 108(3), 110
CRIMINAL LAW – appeal – miscarriage of justice – competence of counsel – failure of counsel to object to irrelevant and prejudicial evidence – evidence that portrayed appellant as violent, sexually predatory and a child molester – failure of counsel to seek direction from trial judge in relation to prejudicial evidence – whether omissions were a tactical decision of defence counsel – failure of trial judge to apply the Evidence Act 1995 , s 137 – failure to trial judge to direct jury in respect of irrelevant and prejudicial evidence – denial of fair trial amounted to miscarriage of justice – unsafe and unsatisfactory verdict – new trial ordered
Evidence Act 1995 , ss 32, 33, 55, 97, 100, 110
Appellant charged with eleven sexual offences – one alleged victim – evidence of admission by appellant – evidence disclosing similar offence with another victim – appellant raises character – cross-examination – evidence of similar offences allegedly committed on two other victims – application of decision in Hoch v R  HCA 50; (1988) 165 CLR 292 post Evidence Act 1995 – tendency evidence – directions on character evidence – inconsistent verdicts.
Evidence – Evidence Act 1995 (NSW) – Character evidence – Accused raised own good character – Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue – Whether discretion to allow cross-examination miscarried.
Words and phrases – “good character” – “credibility” – “leave, permission or direction” – “unfairness”.
Evidence Act 1995 (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192.
Criminal Law – murder – appeal against conviction – admissibility of evidence – evidence of relationship – whether evidence constituted propensity evidence that should have been excluded – meaning and scope of “propensity evidence” – whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule – whether deceased’s oral statements made shortly after the asserted fact – whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication – whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable – whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule – whether directions to the jury on the use of relationship evidence adequate.
Criminal Law – murder – appeal against conviction – accomplices – warning – need for under ss 164 and 165 of the Evidence Act 1995 (Cth) – whether adequate warning given in the circumstances of the case – whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices – whether incorrect identification led to miscarriage of justice.
Criminal Law – murder – appeal against conviction – whether sufficient direction on
co-conspirator rule – whether trial judge’s intervention during cross-examination of
co-accused caused trial to miscarry – whether evidence of an out of court statement by a
co-accused wrongly rejected – whether proper directions given on evidence of good character – whether question arose as to an accused’s fitness to stand trial – whether trial judge failed to properly direct on accused’s failure to recall certain events – whether trial judge failed to adequately put the defence case of one accused to the jury.
Evidence Act 1995 (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165
Criminal Law – Practice and Procedure – appeal against conviction – miscarriage of justice – removal of disruptive accused from Court – right of accused to be present at trial – discretion of trial judge to revoke bail – entitlement of jury to have regard to behaviour of accused throughout trial – direction from trial judge
Bail – Revocation of during trial
Abuse of process – police surveillance of accused – whether surveillance affected capacity of accused to conduct trial
Evidence – Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged
Evidence – Whether fresh evidence not available at trial – whether sufficient to justify interference with verdict
Evidence – Whether evidence of good character of accused raised at trial – evidence in reply – appropriate use – discretion of Court – direction to jury
Evidence – Relevance and public interest immunity – accused denied access to prosecution documents – whether likely to be of assistance in answering prosecution case – whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt
Evidence – Identification evidence – admissibility – use to which hearsay evidence of non-identification could be put – evidence of voice identification – direction from trial judge – whether adequate – s.60 Evidence Act 1995 (Cth)
Evidence – Disputed confessions – admissibility of tape recordings – s.84 Evidence Act 1992 – transcript – discretion to admit – procedure adopted by trial judge in presenting evidence of recorded material to jury
Evidence – Witnesses – cross-examination – need to cross-examine on case on which reliance to be placed – rule in Browne v Dunn – criminal proceedings – parts of defence case not put – application to criminal proceedings – unrepresented accused – consequences of failure to observe rule – inferences to be drawn – appropriate direction
Evidence Act 1995 (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192
Criminal law – Conviction – Aggravated indecent assault – Aggravated indecency – Matters connected with conduct of defence – Failure of defence counsel to call character evidence – No application for voir dire – Whether tactical decision of defence counsel not to call character evidence constituted a miscarriage of justice where that evidence may have been excluded – Chance of acquittal “fairly open” not lost.
Criminal law – Appeal – Practice and procedure – “On any other ground whatsoever” – Allegation defendant not competently or adequately represented – Tactical decision at trial – Whether forensic advantage – Informed and deliberate decision – No miscarriage of justice.
Criminal law – Appeal – Circumstances in which conduct of legal practitioners can provide grounds for appeal – Relevant principles.
Criminal law – Jurisdiction – Trial judge – “Advance ruling” – Whether required by Evidence Act 1995 (NSW) – Whether within implied powers of District Court – Power to conduct voir dire to make “advance ruling”.
Words and Phrases – “fairly open”, “on any other ground whatsoever”, “advance ruling”.
Evidence Act 1995 (NSW), ss 55, 110, 135, 136, 137, 189, 192.
EVIDENCE – tendency and coincidence – criminal trial – admissibility – multiple counts on indictment – where trial judge admitted evidence of each offence as tendency and coincidence evidence in relation to all other offences – where trial judge applied Evidence Act 1995 s 101 in terms – whether test in Pfennig v The Queen applicable – whether tendency and coincidence evidence admissible.