Category Archives: s. 138

R v Hunter (No 12) [2014] NSWSC 1155 (16 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1155.html

CRIMINAL LAW – EVIDENCE – witness – examination in chief – witness protected by certificate pursuant to Evidence Act s 128 – witness gave evidence that evidence he had previously given while on oath in these proceedings is false – whether the certificate protects the witness in respect of this falsity – whether issue should be raised with witness

Armstrong World Industries (Australia) Pty Ltd v Parma [2014] FCA 743 (11 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/743.html

CORPORATIONS – application for interlocutory injunction to restrain defendant from using plaintiff’s business records and confidential information for the purpose of prosecuting proceedings under the Fair Work Act 2009 (Cth) and/or the Accident Compensation Act 1985 (Vic) – application for return and destruction of business records in possession of the defendant – suspension and termination of defendant as an employee of the plaintiff – distinction between mandatory orders and prohibitory orders – balance of convenience – injunctive relief granted.

Director of Public Prosecutions (NSW) v Mathews-Hunter [2014] NSWSC 843 (27 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/843.html

APPEAL – appeal from the Local Court – discretion to exclude improperly or illegally obtained evidence – common law restrictions on the power to arrest – whether citizens arrest by a transit officer improper or in contravention of an Australian law – adequacy of magistrate’s reasons – ex tempore reasons

R v Hunt [2014] NTSC 19 (2 June 2014)

http://www.austlii.edu.au/au/cases/nt/NTSC/2014/19.html

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Whether failure to involve Indonesian Police is unlawful or improper – Mutual Assistance in Criminal Matters Act 1987 (Cth)

– Evidence (National Uniform Legislation) Act 2011 (NT) s138
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Accused not cautioned or informed of rights prior to questioning – Evidence (National Uniform Legislation) Act 2011 (NT) ss138 & 139

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Misleading conduct of police in obtaining consent to search – Evidence (National Uniform Legislation) Act 2011 (NT) s 138

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Whether subsequent conduct of police affects admissibility of evidence – Evidence (National Uniform Legislation) Act 2011 (NT) s 138

Haddara v The Queen [2014] VSCA 100 (27 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/100.html

CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.

EVIDENCE – Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a ‘code’ – Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused – Whether common law discretion survives the Evidence Act 2008 – Effect of s 56 of the Evidence Act 2008 – Sections 90, 136, 137 and 138 considered – Whether s 464J of the Crimes Act 1958 has been impliedly repealed – McNeill v The Queen [2008] FCAFC 80; (2008) 168 FCR 198, Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558, not followed.

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.