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

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

[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

[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)

[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.

[1999] NSWCCA 259

CRIMINAL LAW – appeal against conviction and sentence – EVIDENCE – admissibility of evidence – exercise of right to silence and refusal to give blood sample – appropriate directions given by trial judge during trial and in summing up

Evidence Act 1995, ss 164(3), 165, 165(2)

[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)

[1999] NSWCCA 184

Criminal Law – whether direction necessary that it would be dangerous to convict on uncorroborated evidence of an accomplice.

Evidence Act s 164, 165(1)(d), (4), 165(2)(c)

[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

[2001] NSWCCA 260

Criminal Law – Summing up – warning to jury under s 165 of the Evidence Act – evidence of a ‘kind’ that may be unreliable

Evidence Act 1995 – ss 38, 66, 108(3), 116(1) 164, 165

[2007] NSWCCA 150

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.

[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]

 [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

[2002] NSWCCA 196

[1999] NSWCCA 8

Criminal Law – aggravated indecent assault – adequacy of directions about evidence of sexual conduct other than that charged – need for warning about complainant’s evidence – adequacy of directions about delayed complaint – discretion to decline to order new trial.

[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

[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,

[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)

[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.

[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

[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.

[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

[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)

[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

[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.

[2008] ACTSC 24

CRIMINAL LAW – trial by judge alone – offence of incest in respect to a person under the age of 10 years -evidence insufficient to establish sexual intercourse.

CRIMINAL LAW – trial by judge alone – offence of act of indecency – charge not proved beyond reasonable doubt.