Category Archives: s. 164

Rich v The Queen [2014] VSCA 126 (20 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/126.html

CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, applied; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259; R v Nguyen [1998] 4 VR 394, referred to.

JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher [1998] 2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.

EVIDENCE – Hearsay – Whether evidence of co-offenders’ out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R [1961] HCA 22; (1961) 104 CLR 1; Ahern v R [1988] HCA 39; (1988) 165 CLR 87, applied; R v Christie [1914] AC 545, referred to.

EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn [2008] VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure [1993] VicRp 87; [1993] 2 VR 497; Jenkins v R [2004] HCA 57; (2004) 79 ALJR 252, referred to.

MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas [2007] VSCA 304; (2007) 18 VR 205; Brown v R [2006] NSWCCA 395, applied; R v Vandine [1970] 1 NSWR 252; Johns v R [1980] HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R [2003] HCA 64; (2003) 219 CLR 1; Dupas v R [2010] HCA 20; (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.

CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld) [2004] HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.

TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R [2013] HCA 42; (2013) 303 ALR 42, applied; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, referred to.

AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland [1974] VicRp 100; [1974] VR 849; Crofts v R [1996] HCA 22; (1996) 186 CLR 427, applied.

DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270, referred to.

VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.

SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R [1998] HCA 57; (1998) 194 CLR 610, applied; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, referred to.

Applications for leave to appeal against conviction and sentence dismissed.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/984.html

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Clavel v Savage [2013] NSWSC 775 (14 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/775.html

TORT – malicious prosecution – collateral abuse of process – intentional infliction of emotional distress – discussion of elements and principles – application of principles to largely factual judgment – reasonable and proper cause for prosecution – malice or extraneous or improper purpose

s 67 – refer pars [103-105] – PDF Part 1
s 164 – refer par [736] – PDF Part 3
s 136 – refer par [857] – PDF Part 3

[Note from Faris QC: this judgement is reported in 3 pdf files which can be downloaded from the caselink above]

Dupas v The Queen [2012] VSCA 328 (21 December 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/328.html

CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence – Whether verdict unsafe and unsatisfactory – Appeal dismissed.

CRIMINAL LAW – Appeal – Conviction – Identification evidence – Probative value – Unfair prejudice – Assessment of probative value – Reliability of the evidence – Christie discretion at common law examined – Whether danger that evidence may receive disproportionate weight required exclusion – R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 disapproved; R v Carusi (1997) 92 A Crim R 52, DSJ v R [2012] NSWCCA 9 considered – Evidence Act 2008 (Vic) s 137.

EVIDENCE – Expert evidence as to dangers of identification evidence – Opinion rule –Credibility rule – Exception – Reliability of circumstances of identifications – Admissibility of opinion – Whether based on special knowledge – Evidence Act 2008 (Vic) ss 79, 108C.

EVIDENCE – Prison informer – Whether corroboration required – Whether Pollitt direction adequate – Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 considered – Evidence Act 2008 (Vic) ss 164, 165.

Roberts v The Queen [2012] VSCA 313 (17 December 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/313.html

CRIMINAL LAW – Appeal against conviction – Rape and false imprisonment – Whether verdicts unsafe and unsatisfactory – Challenge to credibility of complainant – Verdict open to jury on evidence – M v The Queen [1994] HCA 63; (1994) 181 CLR 487, applied.

CRIMINAL LAW – Whether judge erred in refusing to allow cross-examination of the complainant about her prior sexual abuse – Whether proper and rigorous evidentiary foundation for application for leave to cross-examine – R v ERJ (2010) A Crim R 270, applied – Criminal Procedure Act 2009, ss 338, 342, 349.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Totality –Indeterminate life sentence for previous offence – Obligation of sentencing judge to fix sentence reflective of criminal culpability involved in particular offending – Effect of Sentencing Act 1991, s 5(2AA) – R v Hunter [2006] VSCA 129; (2006) 14 VR 336, considered – Pre-sentence detention – R v Renzella [1997] 2 VR 88, Karpinski v R (2011) 32 VR 85, considered – non-parole period set at high proportion of head sentence – Kumova v R [2012] VSCA 212, considered – Appeal dismissed.

Schweitzer v Schweitzer [2012] VSCA 260 (23 October 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/260.html

TRUST AND TRUSTEES — Express trust — Creation — Intention to create trust — Transfer of real property to transferor’s parents in consideration of promise by parents to hold property as to half on trust for transferor — Requirements of writing — Fraud exception — Rule in Rochefoucauld v Boustead [1897] 1 Ch 196 — Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, referred to — Property Law Act 1958, s 53(1)(b).

Resulting trust — Transfer of real property to parents — Absence of valuable consideration — No presumption of advancement — Napier v Public Trustee (WA) (1980) 32 ALR 153; Calverley v Green (1984) 155 CLR 252, referred to.

Evidence — Witness — Competency — Appellant acting by litigation guardian — Whether appellant’s absence from witness box sufficiently explained by appointment of litigation guardian — Whether court under duty to conduct own inquiries as to appellant’s capacity to give evidence — Goddard v Elliot [2012] VSC 87, referred to and distinguished.

76 The first three points may be dealt with briefly. In point of principle, corroboration may be found in any independent evidence which supports the testimony of the respondent in a material particular indicative of the existence of the transaction for which he contended.[35] Corroboration may also be found in circumstantial evidence[36] and, for that purpose, the items of circumstantial evidence need not be examined in isolation but may be considered in their totality. To adopt and adapt the language of Redlich JA in Sumner v R,[37] there may be independent facts and circumstances proved in a case which, while incapable individually of providing corroboration, are perceived in combination to be capable of having that effect. Thus, although a particular fact or facts looked at in isolation might not tend towards the establishment of the transaction for which the respondent contended, the combined weight of those facts could do so.[38]

[FN 35] Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381, 392 (Isaacs J); R v Rayner [1998] 4 VR 818, 850–1. That remains so despite s 164 of the Evidence Act 2008 .

DPP v Gibson [2012] VSC 297 (9 July 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/297.html

ADMINISTRATIVE LAW – Appeal from a decision in the Magistrates’ Court – Respondent acquitted of charge under s 49(1)(f) of the Road Safety Act 1986 (Vic) – Magistrate accepted the respondent’s uncorroborated evidence about the timing of her drinking – Whether the requirement in s 48(1A) of the Road Safety Act 1986 (Vic) that evidence be corroborated by the material evidence of another person has been displaced by s 164(1) of the Evidence Act 2008 (Vic) – Whether s 164(1) of the Evidence Act 2008 (Vic) impliedly repeals part of s 48(1A) of the Road Safety Act 1986 (Vic) – Whether s 8 of the Evidence Act 2008 (Vic) preserves the operation of corroboration requirements in the Road Safety Act 1986 (Vic) – Application of the maxim generalia specialibus non derogant – Road Safety Act 1986 (Vic), ss 48(1A), 49(1)(f) – Evidence Act 2008 (Vic), ss 8, 164(1) – Appeal allowed.

R v Kuster [2008] VSCA 261 (11 December 2008)

http://www.austlii.edu.au/au/cases/vic/VSCA/2008/261.html

CRIMINAL LAW – Appeal – Murder – Provocation – Whether judge’s direction sufficient – Application refused.

EVIDENCE – Corroboration – Whether evidence capable of corroborating – Whether necessary that corroborative evidence itself establish commission of offence and accused’s involvement.

EVIDENCE – Criminal trial – Crown witness – Evidence in chief retracted in cross-examination – Whether hostile witness – Whether dangerous witness – Whether judge’s warning about unreliability sufficient – Whether trial judge followed procedure in R v Thynne [1977] VicRp 10; [1977] VR 98 – Whether trial unfair.

Aouad and El-Zeyat v R [2011] NSWCCA 61 (8 April 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

Vincent EGAN v R [2010] NSWCCA 235 (26 October 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/235.html

CRIMINAL LAW – Appeal against conviction – indecent assault – two complainants – verdict of guilty on one complaint and not guilty on the other – whether a doubt about the reliability of one complainant implied a similar doubt about the other – whether the verdict of guilty unreasonable.
CRIMINAL LAW – Appeal against conviction – two complainants – two independent indecent acts charged – whether trial judge erred in not directing jury not to engage in tendency reasoning.
CRIMINAL LAW – Appeal against conviction – indecent assault – whether trial judge erred in not directing jury to exercise caution before convicting because Crown case depended largely on evidence of complainant.

Evidence Act 1995 (NSW) – s 164

GG v Regina [2010] NSWCCA 230 (12 October 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/230.html

CRIMINAL LAW – appeal – conviction – warning to jury – delay between offence and complaint – whether trial judge failed to properly direct the jury in relation to delay in complaint
CRIMINAL LAW – appeal – conviction – warning to jury – danger of convicting on uncorroborated evidence of complainant where such evidence cannot be adequately tested because of passage of time – whether trial judge should have warned the jury in accordance with Longman v R [1989] HCA 60, (1989) 168 CLR 79
CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA
CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Evidence Act 1995, s 165B
STATUTORY INTERPRETATION – Criminal Procedure Act 1986 – Evidence Act 1995 – transitional provisions

TJ v R [2009] NSWCCA 257 (21 October 2009)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2009/257.html

CRIMINAL LAW – appeal – appeal against conviction – sexual assault – particular grounds of appeal – misdirection and non-direction – direction where accused disadvantaged by delay in complaint – whether Longman warning adequate – requirements of Longman warning – whether a warning required in terms – whether particular words required
INTERPRETATION – amendment to s 294 Criminal Procedure Act – transitional provisions – transitional provisions not to apply to proceedings commenced before the commencement of the amendments – when proceedings commence
WORDS & PHRASES – “proceedings” – “caution” – “warning” – “in terms”

R v Maan [2009] ACTSC 160 (7 December 2009)

[This decision seems to have been removed. It can still be located at LexisNexis]

CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered

EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied

EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt

Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165

Copley v The Queen [2000] FCA 994 (27 July 2000)

[2000] FCA 994

CRIMINAL LAW – appeal against convictions for unlawful intercourse with a lineal descendant – whether jury’s verdicts unsafe or unsatisfactory – they were not.

CRIMINAL LAW – whether the verdicts of guilty on five counts were inconsistent with no verdict on one count – meaning of inconsistency.

CRIMINAL LAW – good character raised by the accused – entitlement of the Crown to call evidence in rebuttal – practice of checking with the Crown before character is raised.

Evidence Act 1995 (Cth) s 164(1)

R v Jacobs and Mehajer [2004] NSWCCA 462 (20 December 2004)

[2004] NSWCCA 462

Criminal law – murder – robbery in company with infliction of grievous bodily harm – robbery in company with wounding – joint criminal enterprise – common purpose – constructive murder – conditional indemnity given to witness in exchange for evidence – consciousness of guilt – grounds pertaining to directions to jury – ss 3A and 21A of Crimes (Sentencing Procedure) Act 1999 – ss 164, 165 Evidence Act 1995 – s 18 Crimes Act 1900.

R v Ngo [2003] NSWCCA 82 (3 April 2003)

[2003] NSWCCA 82

CRIMINAL LAW – JURY – juror inadvertently exposed to inadmissible evidence – whether falure to discharge jury – whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially – whether direction adequate to correct any prejudice or perception of prejudice to the accused

EVIDENCE – whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial – whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances – whether accused has a fundamental right to confront accuser where issues of identity involved – whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses – whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b))

EVIDENCE – whether inadequate direction as to lies – whether inadequate direction as to accomplice evidence

LEGISLATION CITED:

Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5)

Evidence (Audio and Audio Visual Links) Act 1998,

ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a)

Evidence (Children) Act 1997

Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b)

European Convention on Human Rights Article 6

Charter of Rights and Freedoms (Canada)

R v El-Azzi [2004] NSWCCA 455 (16 December 2004)

[2004] NSWCCA 455

appeal against convictions

knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine

conspiracy to manufacture not less than large commercial quantity of methylamphetamine

proper characterisation of the object of the conspiracy

impossibility of achievement by use of materials available

whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered

whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine

whether separate trial of first count ought to have been ordered

admissibility of coincidence evidence

directions concerning evidence admissible on individual counts

the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts

directions concerning circumstantial evidence

evidence of deceased witness read

indemnified witnesses

cross-examination of appellant on matters relevant only to credibility

evidence of prior criminal conviction

evidence of disciplinary proceedings

discretion to grant leave to cross-examine appellant on credibility

unfairness

“substantial probative value”

unreasonable verdicts

corroboration

corroboration of evidence of accomplices

whether one accomplice can corroborate the evidence of another

directions concerning unreliability of witnesses

jury access to transcripts of counsels’ addresses and summing up

leave to appeal against sentence

appeal dismissed

leave granted to appeal against sentence

appeal dismissed

Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192

Vikramdeep Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333 (18 October 2006)

[2006] NSWCCA 333

UNFAIR TRIAL – conduct of co-accused – Appellant and co-accused tried together – whether conduct by co-accused’s counsel inflammatory, to the extent of being improper or unfair to the Appellant – refusal to admit evidence going to the credit of co-accused – failure to warn jury as to unreliability of the co-accused’s evidence against the Appellant – no direction requested under Evidence Act 1995 (NSW), s 165 – failure to give directions with respect to evidence of flight

SENTENCE – “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – balance of period of the sentence not exceeding one-third of the non-parole period

Evidence Act 1995 (NSW), ss 9, 102, 103, 112, 135, 138, 164, 165

Crofts v R [1996] HCA 22; (1996) 186 CLR 427 (10 October 1996)

http://www.austlii.edu.au/au/cases/cth/HCA/1996/22.html

Criminal Law – Jury – Discharge – Elicitation by prosecutor of inadmissible evidence of other occasions of sexual abuse not charged – Whether trial judge erred in exercising discretion not to discharge jury.

Criminal Law – Sexual offences – Directions to jury – Delay in complaint – Whether failure to give direction regarding inferences able to be drawn as to credit a misdirection – Whether s 61(1)(a) of the Crimes Act 1958 (Vic) abrogates requirement to give warning regarding delay in complaint where necessary in interests of justice.

Crimes Act 1958 (Vic), s 61.

Jovanovic v R [2007] TASSC 56 (31 July 2007)

[2007] TASSC 56

Criminal Law – Particular offences – Property offences – Misappropriation – Fraudulent misappropriation and omission to account – Meaning of “dishonestly”.

Criminal Code (Tas), s231(1).
R v Fitzgerald [1980] Tas R 257, Peters v R [1998] HCA 7; (1988) 192 CLR 493; Macleod v R [2003] HCA 24; (2003) 214 CLR 230, followed.
Salvo [1980] VR 401, R v Brow [1981] VR 783; R v Bonollo [1981] VR 633, distinguished.

Aust Dig Criminal Law [239]

Criminal Law – Particular offences – Property offences – Misappropriation – Fraudulent misappropriation and omission to account – Money received by company – Whether money received by director.

Criminal Code (Tas), s231(1).
R v Grubb [1915] 2 KB 683; R v Prast [1975] 2 NZLR 248; Stephens v R [1978] HCA 35; (1978) 139 CLR 315; R v Reisterer [1962] NZLR 1040, considered.

Aust Dig Criminal Law [239]

Criminal Law – Evidence – Matters relating to proof – Standard of proof – Direction to jury – Generally – Proof beyond reasonable doubt – Whether misdirection to instruct jury to analyse whether doubt reasonable – Whether direction departed from traditional formula.

Graham v R [2000] TASSC 153; W v R (2006) 162 A Crim R 264; Green v R [1971] HCA 55; (1971) 126 CLR 28, considered.

Aust Dig Criminal Law [452]

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Corroboration – Warning required or advisable – Accomplices – Generally – Content of required warning – Effect of  Evidence Act 2001  on common law requirements.

Evidence Act 2001  (Tas), ss164, 165(2).
Stewart [2001] NSWCCA 260; (2001) 124 A Crim R 371; Conway v R [2002] HCA 2; (2002) 209 CLR 203, applied.

Aust Dig Criminal Law [576]

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Corroboration – What constitutes corroboration – Admissions and conduct of accused – False statements – Creation of false document in support of defence – Whether used as evidence of consciousness of guilt – Direction to jury.

Edwards v R [1993] HCA 63; (1993) 178 CLR 193; Zoneff v R [2000] HCA 28; (2000) 200 CLR 234; Dhanhoa v R [2003] HCA 40; (2003) 217 CLR 1, applied.
Aust Dig Criminal Law [594]

Williams v The Queen [2000] FCA 1868 (20 December 2000)

 [2000] FCA 1868

PRACTICE & PROCEDURE – application to file and serve notice of appeal out of time – need for “special reasons” pursuant to O 52 r 15 of the Federal Court Rules – appellant not granted legal aid funding – delay not caused by mere inadvertence or procrastination -appellant always wished to appeal – good prospects of success – prejudice to the Crown less than in other cases.

CRIMINAL LAW – application at trial to discharge jury – application refused on basis that a direction to the jury would be sufficient – individual juror dismissed because he overheard a court officer discuss the appellant’s prior criminal record – no evidence that other jurors did not also overhear comments about the appellant’s prior criminal record – serious risk of prejudice to the appellant which a direction may not overcome – failure to discharge a miscarriage of justice.

EVIDENCE – application at trial by appellant for access to privileged documents under s 123 of the  Evidence Act 1995  (Cth) (“the Evidence Act”) – application refused – interrelation between the provisions of that Act and Legal Aid Act 1977 (ACT) – privileged documents were forensically relevant and interests of justice would generally require such documents to be produced to defence counsel – application at trial for adjournment to recall Crown witness after Crown case closed to prove the documents – application refused – appellant had every reasonable opportunity to defend himself – refusal of adjournment did not alter this – as Crown witness could not be recalled there was no use that appellant’s counsel would have made of the privileged documents – refusal to grant access to privileged documents not the crucial decision – no appellable error.

EVIDENCE – statement of a deceased Crown witness admitted at trial as exception to hearsay rule under s 65 of the Evidence Act – meaning of “shortly after” in s 65(2)(b) – s 65(2)(b) principally concerned with excluding concocted evidence – memory of the person making the statement not the key concern -meaning of “in circumstances that make it unlikely that it is a fabrication” in s 65(2)(c) – onerous requirements – need to consider not only whether the evidence appears to the judge to be reliable but all the circumstances as to the making of the statement – admission of such evidence was unfairly prejudicial under s 137 of the Evidence Act.

EVIDENCE – failure to give “accomplice” direction under s 165 of the Evidence Act – admission of evidence accompanied by failure to give such a direction amounts to a miscarriage of justice.

Evidence Act 1995  (Cth), ss 8(1), 65(2)(b), 65(2)(c), 123, 137, 164(3), 165

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002)

[2002] NSWCA 419

DEFAMATION – justification – substantial truth

DEFAMATION – qualified privilege – reasonableness – ‘Lange’ defence – malice – reckless indifference – lack of honest belief – improper motive

DEFAMATION – damages – harm to reputation – lifestyle – injury to feelings – plaintiff not giving evidence

DEFAMATION – damages – psychiatric injury

DEFAMATION – exemplary damages

APPEAL – credit based findings – ‘Abalos’ principle

STANDARD OF PROOF – civil case – grave allegations – evidence act s140

INDENTIFICATION EVIDENCE – civil case

CORROBORATION – civil case – allegations of criminal conduct

ADMISSION BY CONDUCT – interfering with witnesses – lies

COSTS – offer of compromise in defamation case – interest

Evidence Act 1995  (NSW) ss 32, 48, 135, 140, 164(1), 165

R v Suarwata [2008] ACTSC 140 (16 December 2008)

[2008] ACTSC 140

CRIMINAL LAW – trial by judge alone – offence of sexual intercourse with a person under the age of 10 years – no evidence in support of offence – accused found not guilty.

CRIMINAL LAW – trial by judge alone – two charges of committing an act of indecency upon a person under the age of 10 years – one charge of attempting to commit an act of indecency upon a person under the age of 10 years – charges not proved beyond reasonable doubt – accused found not guilty.

CRIMINAL LAW – trial by judge alone – evidence given by a child in a Supreme Court trial – evidence to be given by way of audiovisual link – Evidence (Miscellaneous Provisions) Act 1991 (ACT).

CRIMINAL LAW – trial by judge alone – offences of committing an act of indecency upon a person under the age of 10 years – unsworn evidence by child – warning as to reliability of evidence of complainant – s 165  Evidence Act 1995  (Cth) – s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT).

EVIDENCE – complainants aged 8 years and 10 years – whether complainants competent to give sworn evidence – no understanding of “obligation” – complainants not competent to give sworn evidence but competent to give unsworn evidence – s 13 Evidence Act 1995 (Cth).

Evidence Act 1995  (Cth), ss 13, 165, 164,

New Zealand v Moloney [2006] FCAFC 143 (5 October 2006)

[2006] FCAFC 143
EXTRADITION — eligibility for surrender to New Zealand — whether surrender would be unjust — whether appropriate to consider quality of the trial available in New Zealand — lengthy period elapsed since offences allegedly committed — whether differences in Australian and New Zealand criminal law and procedure justify a finding that surrender would be unjust.

CRIMINAL LAW AND PROCEDURE — directions and warnings — Longman warning — cross-admissibility and similar fact evidence — comparison of Australian and New Zealand practice
Evidence Act 1995  (Cth) s 101
Evidence Act 1995 (NSW) ss 164(3), 165, 165(2), 165(5)

Jones v R [1997] HCA 56; (1997) 191 CLR 439; (1997) 149 ALR 598; (1997) 72 ALJR 78 (2 December 1997)

[1997] HCA 56

Criminal law – Unsafe and unsatisfactory verdict – Nature of the function of an appellate court in determining whether it was open to the jury to convict – Whether a reasonable jury can arrive at inconsistent verdicts on similar counts – Whether a reasonable jury can discount evidence which is equivocal due to delays in prosecution – Whether the trial judge should direct the jury accordingly.

R v Livingstone [2004] NSWCCA 407 (22 November 2004)

[2004] NSWCCA 407

Appeal against conviction

importation into Australia of not less that the commercial quantity of cannabis

perjury

whether any miscarriage of justice resulted from failure of the Crown to make available copies of documents

prosecution’s duty of disclosure

Evidence Act 1995 , s165 unreliable evidence

directions concerning cross-examination of prosecution witnesses

Jenkins v R [2004] HCA 57; 79 ALJR 252; 211 ALR 116 (17 November 2004)

[2004] HCA 57

Criminal law – Direction to jury – Accomplice warning – Prosecution witness pleaded guilty to criminal offences related to charges against appellant – Testimony of witness substantially undisputed – Defence did not seek to attack credit of witness – Defence case relied in part on evidence of witness – No warning sought at trial as to reliability of witness – Whether trial judge obliged to warn jury that it would be dangerous to convict on uncorroborated evidence of an accomplice – Whether trial judge obliged to warn jury that evidence was potentially unreliable and must be subjected to careful scrutiny.

Conway v The Queen [2000] FCA 461 (11 April 2000)

[2000] FCA 461

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

Paul Gregory Lane v R [1996] FCA 1478 (16 May 1996)

[1996] FCA 1478 (16 May 1996)

Criminal Law – sexual offence – necessity to warn jury – whether evidence uncorroborated – observations in respect of operation of the  Evidence Act 1995  (Cth) ss 164 and 165

Criminal Law – whether verdict unsafe or unsatisfactory – relevance of delay in complaint – whether a doubt must or ought to have been experienced by the jury

Evidence Act 1995  (Cth) ss 4(1), 164, 165
Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 4(1)

Regina v Lewis Matter No Cca 60683/96 [1998] NSWSC 408 (8 September 1998)

[1998] NSWSC 408 

CRIMINAL LAW – PRACTICE AND PROCEDURE – Directions – corroboration – unreliable witnesses – conflicting directions -  Evidence Act 1995  (NSW) ss 164, 165

CRIMINAL LAW – PRACTICE AND PROCEDURE – Directions – elements of assault occasioning actual bodily harm – elements of affray – flight of accused

CRIMINAL LAW – PRACTICE AND PROCEDURE – Directions – defendant’s failure to give evidence -  Evidence Act 1995  (NSW), s 20

CRIMINAL LAW – PRACTICE AND PROCEDURE – Separate trials – inconsistency in Crown case against co-accused – where co-accused subsequently acquitted by direction – whether verdict unsafe and unsatisfactory

Conway v R [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358 (7 February 2002)

[2002] HCA 2

Criminal law – Evidence -  Evidence Act 1995  (Cth) – Unreliable evidence – Co-offenders – Corroboration – Directions to jury regarding corroboration of evidence given by co-offenders.

Evidence – Corroboration – Warning about acting on unreliable evidence – Directions to jury – Requirements of  Evidence Act 1995  (Cth) – Misdirection to jury – Whether misdirection requires that appeal be allowed and new trial ordered in the absence of substantial miscarriage of justice.

Appeals – Federal Court of Australia – New trial – Misdirection -Grounds on which new trial may be ordered.

Words and phrases – “evidence” – “on any ground upon which it is appropriate to grant a new trial” – “substantial miscarriage of justice”.

Evidence Act 1995  (Cth), ss 164, 165.