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
http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html
ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.
ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.
Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142
http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/851.html
Criminal Law – Evidence – Admissibility – Admissibility of statements made by the accused during police siege – where statements made during course of negotiations to have the accused disarm – whether statements “made in course of official questioning” within meaning of s 281 of Criminal Procedure Act 1986 – whether the accused should have been cautioned under s 139 of Evidence Act – if so, whether admissions should be admitted under s 138 of Evidence Act – Discretion to exclude admissions under s 90 of Evidence Act – whether admission of evidence would render trial unfair.
Evidence Act 1995 – ss 84, 85, 90, 138, 139
Evidence
Admissibility of evidence
unrecorded conversation
whether official questioning
whether reasonable excuse for not recording
client legal privilige
where conversation between accused and solicitor overheard by police
whether conversation was confidential communication
Evidence Act 1995- s139, s 138(1), s 118, s 117
Criminal Law and Procedure – Admissibility of listening device material – s 138 Evidence Act – whether mistatement in application for warrant improper – whether recorded conversations should be edited – admissibility of evidence of uncharged criminal conduct to prove relationship of alleged co-conspirators.
Evidence Act 1995 – ss 137, 138, 139, 48(1), 97
CRIMINAL PRACTICE & PROCEDURE
Admissibility of Evidence
Impropriety – failure to warn
Evidence Act, 1995 – s 138, s139
Evidence
Admissibility
Admissions
Police secretly record conversation with suspect
Failure to fully caution
persistent questioning
Whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial
Application of statutory discretions
Evidence Act (1995) (Cth)- s. 138, 90, 137, 138(3), 84, 85, 139, 139(5), 139(1), 138(2),138(1).
Criminal law
evidence
admissions
considerations of reliability and fairness
Evidence Act ss 85(2), 90.
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Administering caution – Particular cases – Impropriety or unlawfully obtained evidence – Question of sufficiency of accused’s understanding of English – Whether accused understood caution and questioning – Whether interview admissible or to be excluded.
Evidence Act 2001 (Tas), ss85, 90, 138, 139.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s5.
R v Deng [2001] NSWCCA 153, R v Taylor [1999] ACTSC 47, followed.
Aust Dig Criminal Law [433]
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Generally – Official questioning without caution – What constitutes questioning.
Evidence Act 2001 (Tas), ss138(1), 139(2).
Aust Dig Criminal Law [423]
CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion as to admission or rejection of improperly obtained evidence – whether police caution understood by accused at interview – accused intoxicated – whether officer administering caution knew or ought to know that caution misunderstood – record of interview relevant to Crown case – impropriety resulted from mere inadvertence not deliberate contravention of accused’s rights – judicial discretion to exclude not exercised – ss 138(1), 139(1), 139(3), Evidence Act 1995 (Cth).
CONFESSIONS AND ADMISSIONS – in criminal proceedings – whether truth of admissions made by accused adversely affected by circumstances in which admissions made – whether evidence to be excluded – whether accused lacked choice in making admissions – whether admissions unreliable – “circumstances” to include physical and mental characteristics of person interviewed – truth of admissions adversely affected by overall circumstances – s 85(2), Evidence Act 1995 (Cth).
CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion to exclude confession where unfair to accused – whether confession unreliable or untrustworthy – overall circumstances of admissions relevant – evidence excluded – s 90, Evidence Act 1995 (Cth).
WORDS AND PHRASES – “circumstances in which the admission was made”
Evidence Act 1995 (Cth), ss 85, 90, 138(1), 139(1), 139(3)
EVIDENCE – Privilege – Without prejudice communications attempting to negotiate a settlement of a dispute – Where such communications are alleged to evidence abuse of process – Whether admissible
PROCEDURE – Abuse of process – Proceedings against employees of deregistered company – Alleged purpose of obtaining money from holding company – Reasonable grounds for bringing proceedings against employees and against holding company – Whether proceedings against employees an abuse of process.
Evidence Act 1995 , ss.11, 125, 139.
Criminal law – appeal – admissibility of handwriting samples – particulars of identification – statutory authority to require particulars in accused’s handwriting when in custody – provision of handwriting sample not an admission – NSW Police Instructions not improper.
Criminal Law – Evidence – Admissibility of statement made to police after video-recorded interview was completed – Where statement was not made in response to any police question – Whether the statement was “made in the course of official questioning” within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).
Evidence – Admissibility – Statement made to police after video-recorded interview completed – Where statement was not made in response to any police question – Whether the statement was “made in the course of official questioning” within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).
Criminal Law – Appeal – Proviso – No substantial miscarriage of justice.
Statutes – Construction – Purposive construction – Use of definition sections to aid statutory construction.
Words and Phrases: “made in the course of official questioning”, “confession or admission”.
EVIDENCE – whether record of interview and handwritten statement induced by untrue representation and thus inadmissible pursuant to s 410 Criminal Law Act 1960 (NI) – whether trial judge erred in finding this evidence to be admissible – whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) – consideration of construction of s 410 and meaning of “untrue representation” – whether any untrue representations made and whether confession induced – no error in trial judge’s decision to admit record of interview and handwritten statement.
EVIDENCE – whether trial judge erred in failing to exclude record of interview and handwritten statement pursuant to ss 85, 90 or 138 Evidence Act 2004 (NI) – consideration of relevance and application of s 23 New Zealand Bill of Rights Act 1990 (NZ) – whether evidence obtained improperly – whether unfair to admit evidence – trial judge correctly found these sections not to be enlivened.
JURY – discharge of juror by reason of illness – order by trial judge to continue with a jury of less than 12 jurors – whether trial judge erred in application of s 5D Juries Act 1960 (NI) – s 5E Juries Act 1960 (NI) provided that s 5D applied – trial judge entitled to continue with 11 jurors.
EVIDENCE – exclusion of certain expert evidence by trial judge in exercise of discretion – interviewing officer had put parts of expert evidence to appellant – whether subsequent exclusion affected admissibility of confession – whether trial judge erred in failing to revisit earlier ruling regarding admissibility of confession – no error in trial judge’s refusal to revisit ruling.
CRIMINAL LAW – summing up by trial judge – whether trial judge failed to direct jury appropriately on certain forensic evidence by failing specifically to direct that the forensic evidence could have come from a source other than that put in Crown case – no obligation upon trial judge to put to jury every piece of evidence which might have undermined Crown case – whether trial judge erred in failing to direct jury in relation to the positioning of the deceased’s clothing at autopsy – positioning of clothing at autopsy not relevant – whether trial judge erred in failing to direct jury that witnesses unable to identify precise source of certain evidence – fact of source of evidence sought be to proved inferentially – no obligation upon trial judge to direct jury that witnesses unable to identify precise source – whether trial judge failed to direct jury about certain intermediate facts which needed to be proved beyond reasonable doubt – whether trial judge directed jury incorrectly about lies – whether trial judge failed to direct jury that DNA evidence could have originated from unidentified person – trial judge did not fail so to direct – no error in trial judge’s directions.
CRIMINAL LAW – unsworn statement given by appellant pursuant to s 405 Criminal Law Act 1960 (NI) – explanation by trial judge to jury of unsworn statement and how it may be used – whether trial judge commented impermissibly on appellant’s unsworn statement and infringed s 407 Criminal Law Act 1960 (NI) – no infringement as trial judge did not compare unsworn statement with right to give evidence.
PRACTICE AND PROCEDURE – application pursuant to s 27 Federal Court of Australia Act 1976 (Cth) for Court to receive further evidence on appeal – evidence that fact known to appellant in public domain at time of trial – Crown case that fact not in public domain – discussion of powers of Federal Court when hearing criminal appeals – discussion of principles governing application to admit further evidence in context of criminal appeals – whether miscarriage of justice by reason of evidence not being adduced to contradict Crown case or by reason of evidence not being put before Crown to prevent adduction of evidence by Crown that fact not in public domain – whether significant possibility that evidence would reasonably have led jury to return different verdict – very strong Crown case – no possibility that jury, acting reasonably, would have acquitted appellant – application refused as no miscarriage of justice demonstrated.
CRIMINAL LAW – whether conviction should be set aside on ground that verdict unsafe and unsatisfactory – discussion of role of appellate court – consideration of evidence to support Crown case – jury verdict not unsafe and unsatisfactory.
Evidence Act 1995 (Cth) s 8
Evidence Act 2004 (NI) ss 8, 20, 55, 56, 85, 90, 135, 137, 138, 139
Evidence Act 1995 (NSW) s 8
CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.
EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.
EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness - Evidence Act 1995 , s 65.
EVIDENCE – availability of witness – whether witness not competent to give evidence about fact - Evidence Act 1995 , s 65
Evidence Act 1995 (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary
Defrauding the Commonwealth (3 counts)- notional deduction of group tax – responsibility for not sending in employment declarations and for alterations to group number and company names – refusal of adjournment to allow further investigation – admissibility of statements made to ATO tax audit team – not obbtained improperly – ss 138 & 139 of Evidence Act – s 137 of Act – probative value not outweighed by danger of unfair prejudice – notes made by appellant as to meetings with ATO officers admissible as evidence of consciousness of guilt – no prejudice suffered by admission and later withdrawal of group tax summary as evidence to that effect given – ample evidence to support all counts – sentencing structure erroneous – appellant re-sentenced.
Evidence Act 1995 ss 50 137 138 139
CRIMINAL LAW – evidence – confessions – official questioning – no caution administered after formal arrest – earlier caution at search - Evidence Act 1995 (Cth), s 139, Crimes Act 1914 (Cth), s 23F.
CRIMINAL LAW – evidence – confessions – official questioning – where recording facilities available confession inadmissible unless recorded – parts of questioning not recorded – separate periods of questioning – Crimes Act 1914 (Cth), s 23V.
CRIMINAL LAW – evidence – confessions – official questioning – whether truth of confession adversely affected - Evidence Act 1995 (Cth), s 85.
CRIMINAL LAW – evidence – confessions – official questioning – unfairness discretion – Evidence Act 1995 (Cth), s 90.
Evidence Act 1995 (Cth), s 85, s 90, s 135, s 138, s 139, s 142