Category Archives: s. 108

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/4.html

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

R v Schofield [2013] ACTSC 247 (21 November 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/247.html

EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

Niaros v The Queen [2013] VSCA 249 (13 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/249.html

CRIMINAL LAW – Application for leave to appeal – Rape – Assault with intent to rape – Verdicts not factually inconsistent because of a sufficient evidentiary basis for jury to acquit on sexual offence charges for earlier acts but convict on charges for later acts – Jury entitled to reject the evidence that the applicant was aware of complainant’s lack of consent during early acts but accept the evidence that he was aware of her lack of consent during later acts – Common law rule against self corroboration – Evidence of a prior consistent statement may be admitted to rebut an attack upon general credibility – Evidence Act s108 (3) – Verdict not unsafe and unsatisfactory – Application refused.

Bodycorp Repairers Pty Ltd v Maisano (No 8) [2013] VSC 472 (4 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/472.html

CONTRACT – breach – repudiation – franchise agreement – whether termination unlawful – whether breach by franchisor of essential term – willingness to perform only in manner substantially inconsistent with obligations

CONTRACT – breach – unreasonable restraint of trade

RESTITUTION – claim for work and labour done – flawed method of proving any loss suffered

TORT – inducement of breach of contract – attempt to establish case by inference

PRACTICE AND PROCEDURE – application to amend pleadings during trial – leave granted – date from which amendment to take effect – whether new and distinct cause of action – relation back effect of order.

McGlashan v QBE Insurance Limited [2013] NSWSC 678 (28 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/678.html

EVIDENCE – prior consistent statement – whether admissible under s108(3) Evidence Act 1995 (NSW) – whether it was suggested to the witness that his evidence had been ‘re-constructed’ EVIDENCE – s135 Evidence Act – whether the probative value of the statement is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff

I S J v The Queen [2012] VSCA 321 (18 December 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2012/321.html

CRIMINAL LAW – Appeal against conviction – Rape – Incest – Whether the verdict on the charge of rape was unsafe and unsatisfactory – No direction required as to whether the accused believed that the complainant was consenting – Whether the complainant gave free agreement – Temporal gap between the complainant’s objection to penetration and the time of penetration left unexplored – Prosecutor failed to ask complainant whether penetration was without consent – Trial judge’s directions on the evidence as to the question of consent inadequate – Sections 37 and 37AAA of the Sentencing Act 1991 – Appeal allowed on the charge of rape – Appellant convicted of alternative charge of incest – Appeal otherwise dismissed.

CRIMINAL LAW – Evidence – Rule against hearsay – Complaint evidence – Prior representations of complaint evidence led as an exception to the hearsay rule – Substantial time delay between the asserted facts and the dates on which the representations were made – Trial judge limited the use of the evidence under s 136 to buttressing credibility only – Need to comply with statutory pre-conditions under exception to credibility rule – Whether the asserted facts were ‘fresh in the memory’ of the complainant – Sections 66, 108, 136, 137 and 192 of the Evidence Act 2008 – XY v The Queen [2010] NSWCCA 181 referred to – Papakosmas v The Queen (1999) 196 CLR 29 considered – Appeal dismissed.

CRIMINAL LAW – Appeal against sentence – Manifest excess – Appellant re-sentenced because of the successful appeal against sentence – Sentence not manifestly excessive.

CRIMINAL LAW – Appeal against sentence – Child pornography – Manifest excess – Parity – Sentencing discretion re-opened – Appellant re-sentenced.

JD v R [2012] NSWCCA 274 (14 December 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/274.html

CRIMINAL LAW – appeal – conviction – admission of evidence – whether trial judge erred in refusing to admit documents contemporaneously prepared by the applicant – where trial judge made admission of documents conditional on removal of prejudicial portions – whether document admissible under s 66A of the Evidence Act 1995 – whether document admissible under s 108 of Evidence Act 1995 – fresh evidence – new evidence – where document referred to in written and oral submissions at trial.

Dale v Clayton Utz (a firm) [2012] VSC 577 (29 November 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/577.html

LEGAL PRACTITIONER – Barrister – Application to restrain senior counsel from acting for defendant in this proceeding – Application brought under inherent jurisdiction and to enforce duties of confidence and loyalty – Whether leave to cross-examine deponents required – If so, whether leave should be granted – Leave granted on a limited basis

NM v R [2012] NSWCCA 215 (8 October 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/215.html

CRIMINAL LAW – APPEALS – conviction appeal – sexual intercourse without consent – whether verdict unreasonable, or cannot be supported having regard to the evidence – whether complainant’s evidence credible despite inconsistencies – whether trial judge gave erroneous directions to jury – whether judicial bias shown

CRIMINAL LAW – APPEALS – sentence appeal – sexual intercourse without consent – aggregate term of imprisonment of nine and a half years with six and a half years non-parole period – whether sentence manifestly excessive – whether objective seriousness of offences to be assessed having regard to previous relationship between offender and complainant and their ongoing intermittent sexual relationship – whether sentencing failed to conform with principles in Muldrock v R

Judgment

38. The appellant challenges the trial judge’s decision to grant the Crown leave under s 108 of the Evidence Act 1995 to adduce evidence of a prior consistent statement of the complainant. As the appellant’s counsel did not object at the trial to the grant of leave, r 4 of the Criminal Appeal Rules precludes the appellant from taking this point now unless this Court grants him leave to do so. Leave should not be granted as there was no apparent error in his Honour’s ruling, the appellant’s counsel having cross-examined the complainant about prior, allegedly inconsistent, statements.
39. Similarly, unless leave is granted, r 4 precludes the appellant now objecting to the admission of evidence of his violence earlier in the relationship, as no objection to that evidence was made at the trial. No good reason has been given for a grant of leave under r 4. The evidence was specifically mentioned by the Crown Prosecutor when supporting an application by both parties for a ruling that evidence of the relationship between the parties would not be precluded by s 293 of the Evidence Act . No objection was taken by the appellant’s counsel at that point, nor later when the evidence was led. The evidence, as led, was of a brief, general nature, and did not refer to any specific incidents.

R v AB [2011] ACTSC 204 (16 December 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/204.html

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

KTR v R [2010] NSWCCA 271 (3 December 2010)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/271.html

CRIMINAL LAW
whether the trial judge erred in admitting evidence of the violent behaviour of the offender over a period of time and failed to give the jury adequate instructions regarding this evidence in sexual assault cases
whether there was a miscarriage of justice in relation to the Crown Prosecutor’s address
where violence by offender may explain the acquiescence and failure to complain by victims of sexual assault
application of rule 4

R v DF [2010] ACTSC 31 (15 April 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/31.html

CRIMINAL LAW – trial by judge alone – offence of act of indecency upon person above the age of 10 but under the age of 16 – accused found guilty.

CRIMINAL LAW – trial by judge alone – offence of act of indecency without consent – reasonable doubt whether offence committed within dates specified in indictment – accused found not guilty.

CRIMINAL LAW – two charges depending on uncorroborated evidence of complainant – finding that elements of first charge made out beyond reasonable doubt – finding that second charge cannot be made out as to dates specified in indictment – application by counsel to review finding on first count having regard to finding on second count – finding on second count relates to reliability of evidence about dates, not complainant’s veracity or honesty – no requirement to find reasonable doubt about first charge as a result of doubt about second charge.

EVIDENCE – requirement that complainant in sexual offence proceeding not be identified – accused’s granddaughter a complainant in another sexual offence proceeding – granddaughter’s complaint relevant to defence in this proceeding – difficulty of dealing with defence arguments properly without indirectly identifying granddaughter – names of all family members, including accused, suppressed – Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 40.

EVIDENCE – complainant’s evidence of earlier complaints to mother admitted – evidence remained admissible despite exclusion of mother’s evidence of complaint – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – prior consistent statements by complainant – defence case included claims that complainant’s evidence had been fabricated or reconstructed or was the result of suggestion – evidence of earlier complaints by complainant admitted – Evidence Act 1995 (Cth), s 108(3).

EVIDENCE – operation of Evidence Act 1995 (Cth) in judge-alone trials in ACT – requirement that judge take into account a warning that a Territory law would require to be given to a jury – whether “warning” includes directions or comments – effect of Evidence Act provisions expressed to apply where there is a jury – meaning of “Territory law” – Evidence Act not a “Territory law” under Legislation Act 2001 (ACT) – provisions of Evidence Act expressed to apply in jury trials may not be applicable to judge-alone trials in ACT.

EVIDENCE – possible unreliability of evidence of complainant and other prosecution witnesses – complainant’s cousin’s role in instigation of complaints – whether complaints reflected “false” or “recovered” memory – complainant’s faulty recall of incidental details – implausibility of allegation about second incident – “improvement” in evidence of prosecution witnesses.

EVIDENCE – possible unreliability of complainant’s evidence – whether complainant or another prosecution witness had a motive to lie – whether another witness’s motive to lie could affect reliability of complainant’s evidence – whether complainant’s inherently central role in the possible conviction of the accused renders her evidence unreliable.

EVIDENCE – complainant encouraged to make formal complaints by cousin – no necessary implications for truth of complaints – complainant’s evidence not unreliable by reason only of complaints having been encouraged.

EVIDENCE – allegations of “false” or “recovered” memories – no evidence that complainant’s memories had ever been lost – no evidence suggesting creating or implanting of memories – mistakes about matters of detail are not the same as, or evidence of, “false” or “recovered” memory.

EVIDENCE – “improvement” in evidence between committal and trial does not render evidence necessarily unreliable – implausibility of matters in evidence not a reason for finding evidence unreliable – allegation of acts of indecency in presence of others not necessarily implausible.

EVIDENCE – character evidence – weight to be given to character evidence from witnesses who decline to hear details of allegations.

EVIDENCE – evidence taken by video link from Victoria on voir dire – direction under Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 20 only available in respect of a participating State – participating States are those in which provisions are in force in terms substantially corresponding to Part 3 of that Act – Victorian legislation is not corresponding legislation – Victoria is not a participating State – no order available under s 20 – Practice Direction not a sufficient basis for admitting evidence in criminal trial, even with consent of other party – evidence excluded.

EVIDENCE – delay in making complaints – Longman warning – Evidence Act 1995 (Cth), s 165B – requirement under s 165B for defence to identify significant forensic disadvantage claimed to result from delay – significance of delay in absence of sworn denial by accused – significance of delay having regard to extensive cross-examination of complainant about details of allegations.

Abdul-Kader, Mostafa v R [2007] NSWCCA 329 (29 November 2007)

[2007] NSWCCA 329

CRIMINAL LAW – evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement

CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence

CRIMINAL LAW – sentencing – date of commencement of sentence – pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

Evidence Act 1995 ss 66, 102, 108(3)(b), 192

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

Bective Station Pty Limited v AWB (Australia) Limited [2006] FCA 1596 (23 November 2006)

[2006] FCA 1596

CONTRACTS – whether cross-claimant entitled to damages for breach of contract by cross-respondent for failing to take delivery of wheat – whether contract was terminated by non-delivery of wheat, by effluxion of time, or by giving notice of a ‘washout’, or whether still on foot – if contract terminated, whether cross-claimant time barred from bringing claim for damages – proper construction of contract – term of contract that proceedings for recovery of damages be commenced within 12 months of termination of the contract – whether a notice of arbitration constituted commencing proceedings – Held: contract terminated following ‘washout’ of contract – cross-claimant time barred from bringing claim for damages as notice of arbitration did not commence proceedings

TRADE PRACTICES – claim for relief under s 82 and s 87 of the Trade Practices Act – where damage suffered by applicant dependent on respondent making out its cross-claim and being able to recover damages – where held that damages not recoverable by cross-claimant – Held: applicant unable to maintain claim for relief as has not suffered or likely to suffer any relevant loss or damage

TRADE PRACTICES – whether applicant entered contract in reliance on conduct of respondent’s agent which was misleading or deceptive or likely to mislead or deceive – whether respondent’s agent said words to the effect that there will be no wheat available for purchase in Australia from March 2003 until the October 2003 harvest – Held: respondent’s agent did make the representation and the applicant entered into the contract in reliance on it

EVIDENCE – tendency evidence – evidence sought to be adduced by applicant that the respondent’s agent had made similar representations to other purchasers of wheat – whether significant probative value of evidence outweighed prejudice to respondent – whether tendency evidence sought to be adduced by respondent to contradict tendency evidence must comply with s 97(1)(b) of the Evidence Act – Held: tendency evidence of applicant received – tendency evidence to contradict must comply with s 97(1)(b) – tendency evidence adduced by respondent did not have significant probative value

Evidence Act 1995 (Cth) ss 60, 97, 108, 136

R v Johnston [2004] NSWCCA 58 (18 March 2004)

[2004] NSWCCA 58

Criminal law – appeal against conviction for murder – notice of abandonment of appeal – application for leave to withdraw notice of abandonment – evidence by person who might reasonably be supposed to have been criminally concerned – Evidence Act s 165(1)(d) – evidence by co-accused – prior consistent statement – Evidence Act s 108(3) – admissions made while in custody – separate trials – right to silence – hearsay evidence – Evidence Act s 165(1)(a) – whether manslaughter verdict available – evidence of prisoner informer – cross-examination of accused

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 Attallah [2005] NSWCCA 277 (25 August 2005)

[2005] NSWCCA 277

CRIMINAL LAW – an offence of supplying not less than a large commercial quantity of heroin and an offence of supplying not less than a large commercial quantity of cocaine – CONVICTION APPEAL – whether trial proceedings miscarried through the re-examination of a witness who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant’s family which had resulted in the death by shooting of a person – whether trial proceedings miscarried by reason of outbursts by the family of the appellant and the appellant himself on a number of occasions – whether the trial proceedings miscarried through the remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury – whether the directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate – whether directions given by the trial judge as to the potential unreliability of certain witnesses were adequate – SENTENCE APPEAL – life sentence – whether manifestly excessive

R v SELSBY, Kenneth William [2004] NSWCCA 381 (9 November 2004)

[2004] NSWCCA 381

CRIMINAL LAW – Appeal against conviction – Sexual assaults on minors – Evidence of assaults by appellant on mother of complainants – Whether relevant – Whether danger of prejudice outweighed probative value – Evidence of prior inconsistent statements led by Crown – Use of them in cross-examination to suggest incidents complained of did not occur – Leave then granted to Crown to lead evidence of prior consistent statement – Whether leave should have been granted – Crown appeal against sentence – Parity – Manifest inadequacy

Evidence Act 1995 ss.108, 137, 192, Dictionary

R v WRW [2001] NSWCCA 466 (26 November 2001)

[2001] NSWCCA 466

Criminal Law – Sexual assault – Evidence – Complaint evidence – ‘Credibility rule’ – Whether trial judge erred in allowing and not striking out evidence of complainant regarding reason for delay in complaint – Whether trial judge erred in failing to exclude complainant’s evidence regarding belief that appellant having affair with his sister-in-law – Evidence Act 1995, ss 55, 102, 108, 135

Criminal Law – Sexual assault – Significance of factual error in Crown prosecutor’s cross-examination of appellant – Whether factual error misleading – Whether caused miscarriage of justice

Criminal Law – Sexual assault – Multiple counts – Mixture of acquittals and convictions – Whether guilty verdicts unreasonable and not supported by evidence – Credibility of complainant – Whether necessity for direction that doubts about credibility re one or more counts must affect assessment of credibility generally – ND

Langbein v R [2008] NSWCCA 38 (28 February 2008)

[2008] NSWCCA 38

CRIMINAL LAW
appeal against conviction
four occasions of sexual conduct in relation to a child
judge’s directions to jury
whether summing up lacked balance and objectivity
whether trial judge unfairly bolstered child complainant’s evidence and Crown case
CRIMINAL LAW
evidence
whether trial judge erred in admitting evidence of complaint
“fresh in the memory” requirement
re-establishing creditability
whether trial judge erred in his direction on the Markuleski principle
CRIMINAL LAW
application for leave to appeal against sentence
whether the applicant being held in custody with more onerous conditions constitutes special circumstances
rehabilitation of sexual offenders
whether sentence manifestly excessive

KNP v R [2006] NSWCCA 213 (20 July 2006)

[2006] NSWCCA 213

CRIMINAL LAW

EVIDENCE ACT

sexual assault

appeal against conviction

indecent assault

homosexual intercourse

act of gross indecency

offences committed 18 years ago occurring over a period of two years

whether evidence of contemporaneous complaint admissible as prior consistent statement

evidence admitted as a response to prior inconstant statement damaging to complainant’s credit

inconsistency inferred from conduct

Crown Prosecutor’s address

whether inappropriate comments caused a miscarriage of justice

comments seeking to confine the impact of warnings given to jury in summing up

invitations to speculate in absence of evidence

personal opinion

breach of obligations to present Crown case in impartial and fair manner

impact of closing address by defence counsel and trial judge’s summing up

whether directions on caution regarding complainant’s evidence because of delay and lack of corroboration

whether trial judge’s words diminished significance of warnings given

Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 (28 June 1960)

[1960] HCA 39

Evidence – Admissibility – Credit of witness impugned – Suggestion of recent fabrication – Prior statement to same effect admissible – Duty of trial judge – To determine that testimony attacked on ground of recent fabrication or that foundation for such an attack laid – To determine that contents of prior statement are to like effect as testimony and that it tends to answer attack – Great weight to be given to trial judge’s determination by appellate court.

Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 (30 September 1998)

[1998] HCA 61

    A Note to Section 66(2A) states “Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.”

Criminal Law – Evidence – Hearsay – Exception to Hearsay Rule – Complaint of sexual assault – Prior complaint evidence – Whether complaint made when facts “fresh in the memory” of complainant.

Criminal Law – Evidence – Credibility – Exception to Credibility Rule – Whether evidence fabricated – Discretion to admit prior consistent statement – Factors affecting discretion.

Words and Phrases – “fresh in the memory”.

Evidence Act 1995 (NSW), ss 66, 108, 192.

Derek Gabriel v the Queen [1997] FCA 561 (25 June 1997)

[1997] FCA 561

CRIMINAL LAW – appeal against conviction and sentence of the Supreme Court – recklessly inflicting grievous bodily harm – grounds for appeal – error of law – statements from Crown witness unfairly prejudiced the accused – cross-examination of accused as to prior criminal history – miscarriage of justice – onus of proof.

EVIDENCE – admissibility of evidence as to the bad character and criminal propensity of the accused – whether the probative value of such evidence substantially outweighs the unfair or prejudicial effect to the accused – putting the character of the accused in issue – the Court’s discretion to grant leave to admit evidence of the prosecution to rebut evidence of the accused’s good character – admissibility of prior inconsistent statement – false denial of having been involved in the offence – consciousness of guilt – whether character evidence of the accused must be adduced by or on behalf of the accused rather than by the Crown in cross-examination – whether the Crown’s rebuttal of character evidence need be confined to those aspects of character raised by the accused.

WORDS & PHRASES – “adducing evidence”.

Crimes Act 1900 (ACT), ss47, 19, 20

Evidence Act 1995  (Cth), ss97, 101, 102, 103, 104, 108(3), 110, 112, 135, 137, 190(1)

Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 (21 December 2000)

  [2000] FCA 1886

EVIDENCE – tendency evidence – application to adduce evidence of representations made to other prospective tenants of respondent’s shopping centre – whether evidence “tendency evidence” within s 97 of Evidence Act 1995 (Cth) – whether primary judge erred in holding that the evidence lacked “significant probative value” – test for determining whether tendency evidence has “significant probative value”.

EVIDENCE – “credibility rule” in s 102 of  Evidence Act 1995  (Cth) – refusal to permit cross-examination on representations allegedly made to other prospective tenants – whether cross-examination relevant for reason other than credibility – whether evidence from cross-examination would have had “substantial probative value” in relation to credibility.

WORDS AND PHRASES – “significant probative value” – “substantial probative value”.

Evidence Act 1995  (Cth), ss 55, 56, 95, 97, 98, 101, 102, 103, 106, 108, 135, Dictionary.