Category Archives: s. 138

DPP v Hicks (Ruling No 1) [2014] VSC 43 (21 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/43.html

CRIMINAL LAW – Evidence – Murder and aggravated burglary – Admissibility of record of interview – Whether inadmissible pursuant to s 464H of Crimes Act 1958 (Vic) – Whether admissions obtained as result of impropriety – Evidence Act 2008 (Vic) s 138 – Whether unfairness to accused – Evidence Act 2008 (Vic) s 90.

DW v R [2014] NSWCCA 28 (14 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/28.html

EVIDENCE – admissibility – Surveillance Devices Act 2007 – whether recording of a conversation was reasonably necessary for the protection of the lawful interests of the complainant – whether, if within exception to prohibition in s 7 of the Act, trial judge erred in concluding that it would be admissible under s 138 of the Evidence Act 1995 as probative value of recorded conversation outweighed prejudice to accused

CRIMINAL LAW – appeal and new trial – objections or points not raised in court below – misdirection and non-direction

CRIMINAL LAW – evidence – propensity, tendency and co-incidence – admissibility and relevance – directions to jury

Azar v DPP [2014] NSWSC 132 (28 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/132.html

POLICE – legitimate exercise of powers – searches and detention of persons – whether suspicion was reasonably formed – presence of hire car in area known to police to be connected with drug use and supply, in circumstances where a person got into the passenger seat of a motor vehicle and then got out again within a short period of time – whether Parliament intended power to detain to amount to an arrest

R v Diamond [2013] NSWCCA 337 (20 December 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCCA/2013/337.html

CRIMINAL LAW – solicit to murder
EVIDENCE – Crown appeal – Criminal Appeal Act 1912, 5F(3A) – controlled operation – Law Enforcement (Controlled Operations) Act 1997 – Authority to conduct controlled operation – nature of controlled activity – undercover police operative – communications with accused recorded pursuant to Authority – whether evidence unlawfully obtained – Evidence Act 1995 , s 138 – whether Authority validly granted – whether activity within term of Authority – Code of conduct – evidence not unlawfully obtained – ruling excluding evidence vacated

Attorney-General’s Reference No 1 of 2012 [2013] TASCCA 14 (23 December 2013)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2013/14.html

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Generally – Police Commissioner to publish Manual containing orders, directions, procedures and instructions – Statutory provision requiring police officers to comply with “all orders in the Manual” and with “any lawful direction or lawful order given by a senior officer” – Whether breach of provision of the Manual other than an order is a contravention of an Australian law.

Kudrynski v Wollongong City Council [2013] NSWCA 461 (19 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/461.html

ENVIRONMENT AND PLANNING -unauthorised structures and an accumulation of motor-related equipment and other material on the appellants’ property – respondent council issued notices to the appellants to demolish or remove these structures and a notice to remove and dispose of rubbish and refuse on the property – Council obtained orders of the Land and Environment Court enforcing the orders – no error established on appeal

R v CK [2013] ACTSC 251 (13 December 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/251.html

STATUTORY INTERPRETATION – whether obligation to notify an Aboriginal legal aid organisation in s 23H(1) Crimes Act 1914 (Cth) must be performed prior to police questioning a person of Aboriginal or Torres Strait Islander descent – s 23H must be read in context of Div 3, particularly s 23G: Right to communicate with friend, relative and legal practitioner – obligation to notify in s 23H(1) directed towards choice of interview friend – no purpose to contacting Aboriginal legal aid organisation after arrested person has expressly and voluntarily waived right to have interview friend present

CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether admissions, made in course of police interview, evidence obtained in contravention of an Australian law or as a consequence of impropriety: s 138 Evidence Act 2011 (ACT) – limitations on questioning the accused found in s 23H(2), not in s 23H(1) – breach of s 23H(1) would lead to evidence being obtained following a contravention of Australian law, but not in contravention – questioning accused following waiver of right to interview friend in s 23H(2) not “quite inconsistent” or “clearly inconsistent” with requisite standard of propriety

Sexton v Homer [2013] NSWCA 414 (5 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/414.html

APPEAL – challenge to findings of fact – challenge to contingent finding of contributory negligence – retrial required

EVIDENCE – client legal privilege – whether statement of defendant obtained by investigator for use by insurer is privileged – whether trial judge correctly assessed dominant purpose of statement – whether document a confidential communication – Evidence Act 1995 (NSW), ss 117, 118

NEGLIGENCE – motorcycle accident – damages agreed – whether question of liability was correctly determined – trial judge reasons do not record process of resolving disputed facts – erroneous fact-finding process

R v FE [2013] NSWSC 1692 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1692.html

EVIDENCE – s 138 and s 139 Evidence Act 1995 – improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 – unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl

CRIMINAL LAW – right to silence- requirement for caution- provisions relating to juveniles

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/283.html

EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

GEDEON Gilbert v R [2013] NSWCCA 257 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/257.html

CRIMINAL LAW – appeal against conviction – two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW – inconsistency between State and Commonwealth laws – whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – gravity of impropriety or contravention – evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 – authority subsequently held to be invalid.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE – witness – cross-examination on voir dire – privilege – self-incrimination – whether answers would tend to prove an offence against a law of a foreign country – proof of foreign law – whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW – sentencing – parity principle.

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) [2013] VSC 575 (30 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/575.html

EVIDENCE – Whether evidence was obtained illegally or improperly – Discretion to admit evidence where desirability to admit outweighs undesirability to admit – Evidence obtained for the purpose of defence of litigation – Evidence obtained by improper or illegal conduct – Assessment of probative value of evidence – Probative value high, desirability of admitting outweighs desirability of excluding – Evidence Act 2008 (Vic) ss 135, 137, 138.

PRACTICE AND PROCEDURE – Obligations of parties and their solicitors under Part 2.3 of the Civil Procedure Act 2010 (Vic) – Obligation to act honestly – Obligation to cooperate with the parties and the Court – Obligation not to engage in conduct which is misleading or deceptive – Obligation not to engage in conduct which is likely to mislead or deceive – Obligation to use reasonable endeavours to narrow the issues – Failure of Applicant and Defendant to narrow the issues – Failure of Applicant and Defendant to cooperate – Failure of Defendant not to act in a way that was likely to mislead – Civil Procedure Act 2010 (Vic) ss 16, 17, 20, 21, 23.

STATUTORY INTERPRETATION – Scope of statutory authority of Electricity Corporation to enter private property – Consent of landowners to Electricity Corporation entering private property – Electricity Industry Act 2000 (Vic) ss 1, 20, 21, 85, 88, 93, 95.

Patsalis v Attorney General for New South Wales [2013] NSWCA 343 (16 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/343.html

ADMINISTRATIVE LAW – judicial review – relief – whether quashing order available unless rights directly affected or decision a step in a process with legal consequences – whether jurisdictional or legal error – whether order available against judge of Supreme Court

APPEAL – refusal to grant an inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court – whether exercise of judicial function – whether appeal available under Supreme Court Act 1970 (NSW), s 101

CRIMINAL LAW – appeal and review – unsuccessful appeal – application for inquiry – whether doubt or question as to guilt – whether refusal to direct an inquiry reviewable

WORDS & PHRASES – “proceedings” – Crimes (Appeal and Review) Act 2001 (NSW), s 79 – “judgment or order” – Supreme Court Act 1970 (NSW), s 101

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 30) [2013] VSC 547 (15 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/547.html

EVIDENCE – Privilege – Issue waiver – Documents recording communications between Plaintiff’s solicitors and witnesses – Internal communications of Plaintiff’s solicitors – Communications between Plaintiff’s solicitors and counsel – Evidence Act 2008 (Vic) ss 117, 119, 122, 138.

Hua Wang Bank Berhad v Commissioner of Taxation (No 7) [2013] FCA 1020 (8 October 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1020.html

EVIDENCE – Admissibility – Exclusion of evidence of matters of state – Whether comity required the rejection of evidence – Extraterritorial application of foreign law

EVIDENCE – Discretion to exclude improperly or illegally obtained evidence – Whether orders of foreign court resulted in improper or illegal obtaining of evidence

EVIDENCE – Contempt of court – Whether tender of evidence a contempt due to manner obtained

Heyward v Bishop [2013] ACTSC 202 (3 October 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/202.html

APPEAL AND NEW TRIAL – EVIDENCE – appeal from Magistrates Court – whether error in failing to provide any or sufficient reasons for determination s 138 Evidence Act 2011 (ACT) discretion did not arise – discretion in s 138 does not arise until Court satisfied evidence obtained improperly or in contravention of Australian law – Magistrate entitled to prefer evidence of police to evidence of appellant – whether error in failing to consider inconsistency of police witness testimony – Magistrate entitled to view alleged inconsistencies as not significant – essential consistency – appeal dismissed

Evidence Act 2011 (ACT), s 138

Shea v TruEnergy Services Pty Ltd (No 3) [2013] FCA 935 (27 August 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/935.html

PRACTICE AND PROCEDURE – allegation that the respondent’s managing director participated in and condoned a culture of lewdness and sexual harassment in the workplace – whether private telephone text messages between the managing director and another adult in a consensual sexual relationship were evidence of the managing director’s tendency to use lewd language to and about women in the workplace – whether text messages were lewd and obscene and therefore suggestive of a lewd and obscene workplace culture – text messages irrelevant to the proceeding and inadmissible

PRACTICE AND PROCEDURE – telephone containing text messages obtained irregularly – unnecessary to decide whether telephone was obtained improperly under s 138 of the Evidence Act

R v Patricia Anne Gallagher [2013] NSWSC 1102 (19 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1102.html

RIMINAL LAW – Murder – special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 – where Crown relied upon circumstantial case – necessity to consider the entirety of the circumstantial case in determining whether the accused’s commission of the alleged offence was proved beyond reasonable doubt

EVIDENCE – admissions – exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair – where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment – where accused had been interviewed by the police on two occasions and had denied killing the deceased – where police subsequently implemented undercover operation – where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence – where police continued with the undercover operation in those circumstances – where accused initially repeatedly denied responsibility for the deceased’s death to undercover operative – where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased – whether the actions of the police in implementing and continuing the undercover operation were improper – whether the circumstances in which the admissions were made were otherwise improper – whether the evidence of the accused’s admissions should be excluded as having been improperly obtained – alternatively whether evidence of the accused’s admissions should be excluded on the basis of unfairness

EVIDENCE – admissions – where evidence that the accused had allegedly admitted to the killing of the deceased – where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made – whether the evidence of the admission should be excluded on the basis of unfairness.

EVIDENCE – lies – where Crown relied upon lies told by the accused as evidence of consciousness of guilt – whether the statements made by the accused were in fact lies – whether the lies were deliberate – whether the lies were evidence of consciousness of guilt

EVIDENCE – tendency evidence – whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively

Leith v Chief of Army [2013] ADFDAT 4 (20 August 2013)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2013/4.html

DEFENCE – convictions relating to theft of ammunitions and disobedience of lawful command – whether Judge Advocate erred in admitting evidence – consideration of “special circumstances” under s 101JA(3) of the Defence Force Discipline Act 1982 (“the DFDA”) – balancing the interests of justice – double jeopardy – whether the Judge Advocate erred in convicting the appellant of theft contrary to s 47C of the DFDA in light of conviction under s 34 of the Explosives Act 1999 (Qld) – consideration of “substantially the same” under s 144 of the DFDA

Mapham v Bannerman; Mapham v Bannerman [2013] ACTSC 157 (13 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/157.html

APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appeal from Magistrate’s finding of guilt – availability of appeal on ground that verdict unsafe and unsatisfactory – applicability of “proviso” in such appeals – whether error by Magistrate had resulted in substantial miscarriage of justice.

APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appeal from Magistrate’s finding of guilt – Magistrate should not have applied Jones v Dunkel reasoning against appellant – no miscarriage of justice – appeal dismissed.

APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal on ground of Magistrate’s failure to uphold no case submission – error in rejecting no case submission – no miscarriage of justice if defence evidence incriminated appellant – defence evidence did not incriminate appellant – appeal allowed.

EVIDENCE – Admissibility and Relevancy – appellant in company of informant in relation to existing proceedings against appellant – without caution, appellant gave informant receipt relevant to existing proceedings – appellant charged with using false evidence, arising out of provision of receipt to informant – whether failure to caution meant that evidence of provision of receipt improperly obtained for purposes of use false evidence charge – whether person in company of investigating officer should be cautioned in order to avoid impropriety in obtaining evidence of any offence subsequently committed – evidence of subsequent offence not improperly obtained – no error by Magistrate in admitting evidence.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Relating to the Administration of Justice – use false evidence – offence alleged involved giving police officer false receipt in connection with charge of unlawful possession of stolen property – police officer spoke to offender in connection with unlawful possession offence – whether evidence of using false evidence offence obtained improperly because defendant not cautioned before providing receipt – no requirement for caution in circumstances of case – evidence not improperly obtained – no error by Magistrate in admitting evidence.

Bloxham v Wyte [2013] ACTSC 151 (5 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/151.html

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – competence of appeal – availability of appeal to Supreme Court of finding of guilt made in Magistrates Court.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences against Government – hindering Territory public official – no physical element relating to property – effect of claim of right – whether offence arises necessarily out of the exercise of a proprietary or possessory right – claim of right does not excuse use of force – mistake of fact – whether public official was exercising the official’s functions as a public official – whether defendant can rely on uninformed assessment of nature and scope of legal obligations applicable to exercise of function concerned or of degree of compliance with such obligations – self-defence of property based on honest but incorrect belief in right to possession of property having no value to defendant or to officials concerned – no reasonable belief that response was necessary to protect property from unlawful appropriation.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – assault – self-defence of property – no reasonable belief that it was necessary in self-defence of property to do what defendant did.

R v Manyathala; R v Ojielumhen [2013] ACTSC 115 (7 June 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/115.html

23. I accept, as does the Crown, that the search warrant was not legally issued; that police entry into and the search of the premises in Groom Street pursuant to the warrant was illegal; and that the evidence obtained during the execution of the warrant was illegally obtained. I see this as a fundamental and serious breach of the law. I agree with Mr Lawton that, putting aside section 138 of the Evidence Act , the evidence obtained during the search should not be admitted during the trial of the accused.

24. Once it is found that evidence was illegally obtained, it is for the Crown to persuade me to exercise my discretion under section 138 of the Evidence Act to admit the evidence notwithstanding the illegality by which it was obtained.

R v Edwin (No. 3) [2013] ACTSC 102 (3 June 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/102.html

CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether evidence should be excluded under s 138 Evidence Act 2011 (ACT) – whether evidence obtained improperly or in consequence of impropriety – conduct did not go beyond providing accused with opportunity to act as he did – application to exclude evidence refused

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

Pratten v Commonwealth Director of Public Prosecutions [2013] NSWSC 594 (21 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/594.html

ADMINISTRATIVE LAW – jurisdiction of the Supreme Court under s 39B of the Judiciary Act – discussion of motion in arrest of judgment – jurisdiction to declare void or quash income tax assessment – application for mandamus and prohibition against Commonwealth officers in collateral attack on criminal proceedings in the Court – discretion where broader rights on appeal are available – whether determination of financial advantage in criminal proceedings was reliant upon tax assessment and as a consequence impermissible non-judicial act inconsistent with the Constitution

R v Drummond (Ruling No 1) [2013] VSC 70 (26 February 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/70.html

CRIMINAL LAW – Evidence – initial police statement silent as to events subsequently admitted – whether admissible – credit – consciousness of guilt – covert recording – conversations in cells – undercover police operatives – purpose of evidence – animus – admissions of circumstances – statements towards co-accused – statements concerning witness – statements not confessional – low probative value – highly prejudicial – elicited in part by improper conduct – offers to assist in suborning witness – Evidence Act 2008 ss 90, 137, 138.

R v Ross Edward Seller; R v Patrick David McCarthy [2013] NSWCCA 42 (1 March 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/42.html

CRIMINAL LAW – grant of stay – Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) – scope of s 25A of the Australian Crime Commission Act 2002 (Cth) – whether dissemination might prejudice a fair trial.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination of transcripts resulted in a fundamental defect in the trial process – exercise of discretion – whether a permanent stay justified.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination resulted in a fundamental defect in the trial process – inference as to use of transcripts by CDPP – whether material justified inference.

Evans v Powell [2012] NSWSC 1384 (19 November 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1384.html

APPEAL – appeal against Local Court decision against dismissal of five court attendance notices – appeal upheld – failure to give adequate reasons – whether his Honour erred in excluding disputed evidence – whether his Honour erred in dismissing 5 court attendance notices – residential centres – power of entry – construction of s 25 of the Youth and Community Services Act 1973 – exclusion of the disputed evidence – orders – costs

EVIDENCE – admissibility – discretionary exclusion of evidence

MJ v R [2012] ACTCA 53 (17 December 2012)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/53.html

APPEAL AND NEW TRIAL – Appeal against conviction – Evidence of “illegal search” – No search – No illegality – Appeal ground dismissed.

APPEAL AND NEW TRIAL – Appeal against conviction – Whether trial miscarried – Failure to discharge jury after evidence adduced – Crown witness deliberately raised prejudicial character evidence – Police witness – Circumstantial case – Crofts v The Queen –Evidence to be considered in context – Appeal ground upheld.

APPEAL AND NEW TRIAL – Appeal against conviction – Trial miscarried – Davies v The King – No basis for recording an acquittal – Conviction quashed – New trial ordered.

R v MEYN John Michael (No 1) [2012] NSWSC 1441 (21 November 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1441.html

CRIMINAL LAW – Evidence – application on voir dire to exclude improperly obtained evidence – domestic homicide – electronically recorded interview with accused – whether improperly obtained – whether police reckless as to accused’s physical state at time of interview – intoxication – fatigue – failure of interviewing officers to inspect custody management records noting accused’s intoxication – whether evidence obtained in consequence of impropriety.

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

Patsalis – Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1597 (20 November 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/1597.html

CRIMINAL LAW – application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 – applicant convicted in 1999 for murder – prior petition to Governor rejected – asserted fresh and new evidence – re-agitation of matters raised at trial – no doubt or question as to guilt

R W S v The Queen [2012] VSCA 249 (26 September 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/249.html

CRIMINAL LAW – Appeal – Conviction – Rape, indecent assault – Complainants intellectually disabled – Whether capable of free agreement to sexual acts – Whether jury directions adequate – Late abandonment of grounds of appeal – Application to add new ground – Leave refused – Complainants gave evidence in chief by audio-visual recording – Certain questions put by unauthorised person – Whether answers admissible – Whether unfair prejudice – Leave to appeal refused – Crimes Act 1958 (Vic) ss 36, 38, 39, Criminal Procedure Act 2009 (Vic) ss 367, 368, Evidence Act 2008 (Vic) ss 135, 137, 138.

Hibble v B [2012] TASSC 59 (20 September 2012)

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/59.html

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases – Whether breach of Forensic Procedures Act 2000 – DNA sample taken from 13 year old as a volunteer – No agreement with the Commissioner of Police regarding period for retaining the DNA – No delegated authority – Gravity of the contravention.

R. v. Michael Anthony Ryan (No. 2) [2012] NSWSC 1034 (4 September 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1034.html

1. I reject the defence application to exclude under s.138 Evidence Act 1995 evidence of the prior inconsistent statement made by Mr. Moody on 1st of May 2011 as set out in Exhibit VD5;

2. I allow the defence application that I re-open and reconsider my ruling under s.38 of the Evidence Act made on 30th August 2012;

3. I confirm my previous ruling in the following terms:

Under s.38 of the Act I give leave to the Crown to cross-examine Mr. Moody on answers given to questions 363 to 438 recorded in the record of interview made on 1st May 2011, with the exception of question and answer 419.

I direct that Mr. Moody may be cross-examined on the basis of the audio/visual recording made contemporaneously with that interview, but the recording of segments of it shown the jury are to include question and answer 37, appearing on pages 5 to 7 of the transcript.

4. I revoke the condition previously expressed of that grant of leave that I provide a direction to the jury in accordance with s.165 of the Evidence Act.

Catchwords:

CRIMINAL LAW – evidence – Evidence Act – application to cross examine – s38 – application to exclude evidence – s138 – application for direction under s 165 – leave to cross examine granted – s 138 application refused – warning not necessary – matters within jurors ordinary experience.

Director Of Public Prosecutions v Tamcelik [2012] NSWSC 1008 (31 August 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1008.html

APPEAL – appeal from Local Court decision – defendant charged with possession of restricted substance contrary to Poisons and Therapeutic Goods Act 1966 – defendant acquitted by Local Court – police attended premises in response to complaint of domestic violence – seized goods from defendant’s bedroom – whether Magistrate applied incorrect principles and failed to exercise discretion under Evidence Act 1995, s 138 – relevant statutory provisions under Law Enforcement (Powers and Responsibilities) Act 2002 – relevant common law principles – statutory interpretation – statute excludes common law and provides own regime – application to facts – all grounds fail – summons dismissed

Jones v Chief of Navy [2012] FCAFC 125 (7 September 2012)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/125.html

DEFENCE AND WAR – charges of indecency – applicant convicted on seven counts before General Court Martial (GCM)– appeal from GCM to Defence Force Discipline Appeals Tribunal (Tribunal) – appeal on a question of law from Tribunal to the Court – grounds – whether Tribunal erred in failing to find substantial miscarriage of justice – prosecutor’s final address at trial said to be prejudicial – direction made by Judge Advocate to jury – direction itself said to be prejudicial – any prejudice to applicant negatived – irregularity in proceeding at GCM not tantamount to miscarriage of justice – no error of law – grounds not made out – whether Tribunal erred in failing to find that Judge Advocate erred when directing Panel on s 67 of Crimes Act 1900 (ACT) – directions on law sufficient for Panel to dispose of real issues – ss 60 and 67 of the Crimes Act 1900 (ACT) not inconsistent – no error of law – ground rejected – whether Tribunal erred in failing to find that convictions were unreasonable because inconsistent with acquittals – open to Panel to conclude to requisite standard that applicant guilty – independent examination of evidence by Tribunal – open to Tribunal to conclude that Panel could be satisfied to requisite standard that applicant guilty – ground rejected – whether Tribunal erred in failing to find convictions were wrong in law– ruling made by Judge Advocate on objections to charge sheet – offence under s 60 of Crimes Act 1900 (ACT) said to be unavailable – offence under s 33(c) of Defence Force Discipline Act 1982 (Cth) said to be equivalent – duplicity alleged – materially different offences – ground rejected – s 67 of Crimes Act 1900 (ACT) on consent said not to apply – s 67 need not be “picked up” – operation of s 67 not impermissible legislative interference with exercise of judicial power – not contrary to Ch III of Constitution – ground rejected – whether Tribunal erred in failing to find that Judge Advocate erred in failing to dissolve Panel after misconduct by prosecutor in closing address – no reversal of onus of proof – complaint not put before Tribunal – ground rejected – whether Tribunal erred in failing to find that Judge Advocate erred in admitting into evidence recording of police interview with applicant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error – ground rejected – offences subject of convictions said to be indictable offences – entitlement to trial by jury – ground rejected

COSTS – s 52 Defence Force Discipline Appeals Act 1955 (Cth) – not exhaustive statement of powers of the Court – general power of the Court to award costs available – s 43 Federal Court of Australia Act 1976 (Cth)

Rich v The Queen [2012] VSCA 183 (9 August 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/183.html

APPEALS – Application for directions in respect of application for leave to appeal against conviction and sentence – Whether order should be made for production of unlawful affidavits relating to the obtaining of evidence – No arguable basis for avoiding s 165 Evidence Miscellaneous Provisions) Act 1958 – Whether audio compact disc of transcript should be provided – Whether transcript of charge, plea hearing and sentence should be provided in Transcript Analyser format – Whether orders should be made against general manager of prison – Applications refused – Criminal Procedure Act 2009 s 317.

Jones v Chief of Navy [2012] ADFDAT 2 (22 May 2012)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/2.html

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DEFENCE AND WAR – charges of indecency – seven counts of indecency found by General Court Martial –appeal – grounds – prosecutor’s final address at trial prejudicial – direction made by Judge Advocate to jury – any prejudice to appellant negatived – grounds not made out – ruling made by Judge Advocate on objections to charge sheet – provision relied upon said to be unavailable – duplicity alleged – grounds not made out – provision of Crimes Act on consent said not to apply – ground not made out – Judge Advocate said to have erred in pre-trial ruling on the defence’s objection to a member of the panel – application was refused – said to be reasonable grounds for inferring ostensible bias – resulting in wrongful convictions and substantial miscarriage of justice and/or material irregularity – ground not made out – fraudulent misrepresentation of fact said to have occurred – error alleged in Judge Advocate’s directions to panel on whether or not complainant’s consent negatived – ground not made out – convictions said to be inconsistent with acquittals – found – open to panel to conclude to requisite standard that appellant guilty – ground rejected – conviction under Charge 22 said to be unreasonable and/or could not be supported by evidence – ground upheld – Charge 22 quashed – Charge 23 laid as alternative to Charge 22 – evidence supports this charge – conviction recorded and appellant sentenced to severe reprimand – recorded telephone conversation between complainant and appellant said to be inadmissible – Judge Advocate ruled that desirability of admitting evidence outweighed undesirability of admitting it – no error in exercise of discretion – ground not made out – admission of recording of police interview with appellant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error found – ground not made out – appellant said offences subject of convictions were indictable offences – entitled to trial by jury – ground dismissed – Tribunal bound by authority requiring rejection of ground

Re Bailey and Blake No 2 [2012] NSWSC 394 (27 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/394.html

ADMINISTRATIVE LAW – order in the nature of certiorari quashing the decision of a Children’s Court magistrate – alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN – care proceedings – whether expert report independently obtained by a party is admissible – whether consent of all persons with parental responsibility necessary – paramountcy of the interests of the children the subject of the proceedings – need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law – appropriate to consider the requirement that Children’s Court proceedings be conducted with as little formality and technicality as possible.