Category Archives: s. 086

R v Windle [2012] NSWCCA 222 (16 October 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/222.html

CRIMINAL LAW – Director’s appeal against sentence – offence committed while in custody and eligible for parole – whether error for sentencing judge to backdate sentence to last opportunity to be considered for parole – whether court required to take into account period in custody after parole revoked for offence – Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24 and 47

CRIMINAL LAW – Director’s appeal against sentence – attempt to strangle with intent to murder – leniency for revelation of intention by offender – whether extent of leniency depends on extent of revelation – whether numerical discount should be stated – discussion of R v Ellis (1986) 6 NSWLR 603

CRIMINAL LAW – Director’s appeal against sentence – attempt to strangle with intent to murder – mental illness – applicant’s mental illness did not establish defence of insanity – whether principle of retribution in sentencing diminished in cases of mental illness – whether mental illness relevant to gravity of offence – whether increase in sentence for protection of society is speculation leading to arbitrary result – whether sentence incorporating protection of society can exceed otherwise appropriate sentence – whether mental illness increases the need for personal deterrence and protection of the public – discussion of Veen v The Queen [No 2] [1988] HCA 14; 164 CLR 465

CRIMINAL LAW – Director’s appeal against sentence – attempt to strangle with intent to murder – sentencing judge found special circumstances – significant criminal record – no remorse – unclear whether offender will accept mental health treatment – whether special circumstances – Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

CL v Director of Public Prosecutions (NSW) [2011] NSWSC 943 (26 August 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/943.html

APPEAL FROM LOCAL COURT – application for evidence of admissions to be excluded – admissions not tape recorded – whether s 281 of the Criminal Procedure Act only applies to offences being dealt with on indictment – whether s 281 of the Criminal Procedure Act has application to proceedings conducted in accordance with ss 26-31 of the Children (Criminal Proceedings) Act – discretion to admit evidence under ss 85 and 86 of the Evidence Act

M L v The Queen [2011] VSCA 193 (23 June 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/193.html

CRIMINAL LAW – Interlocutory appeal – Application for review of a refusal by the trial judge to certify – Whether prosecution entitled to cross examine the applicant on statements made to Department of Human Services officers – Whether ss 85 and 86 of the Evidence Act 2008 applied – Whether statements made were ‘admissions’ – Criminal Procedure Act 2009, ss 295(3), 296(4)(a) and 297 – Whether evidence given under cross-examination would, if ruled inadmissible, eliminate or substantially weaken the prosecution case – Application refused.

JCT Wong & v Kelly [1999] NSWCA 439 (6 December 1999)

[1999] NSWCA 439

CUSTOMS AND EXCISE – Customs offences – importation of goods – evasion of duty – nature of proceedings – whether criminal or civil – nature of retainer of solicitor – authority to prosecute – whether owner of goods – whether documents producible only to the Collector – amended Statement of Claim – failure to strike out averments – Customs Act 1901 (Cth), ss 4, s 36(1), 153, 214

Evidence Act 1995 (NSW) s 86 s 138

R v Moffatt [2000] NSWCCA 174 (23 May 2000)

[2000] NSWCCA 174

CRIMINAL LAW – appeals – appeal against conviction – murder – trial by judge alone – role of Court of Appeal – causation – whether death of deceased caused by act of appellant – where more than one possible cause of death – where constitutional defect – admissibility of admissions – confabulation – reliability of admissions.

Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3)

Kelly v R [2004] HCA 12; 218 CLR 216; 205 ALR 274; 78 ALJR 538 (10 March 2004)

[2004] HCA 12

    A Note to Section 85(1) states “Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.”

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”.

The Queen v Gregory Martin Hinton [1999] ACTSC 20 (16 March 1999)

[1999] ACTSC 20

CONFESSIONS AND ADMISSIONS – in criminal proceedings – whether statements made by accused in furtherance of conspiracy were “admissions” – meaning of “admission”, “previous representation” – whether requirement for admission to be a confession – whether previous representations adverse to accused’s interests -  Evidence Act 1995  (Cth)

EVIDENCE IN CRIMINAL PROCEEDINGS – discretion as to admission or rejection of improperly obtained evidence – whether accused’s statements improperly obtained by police – failure to caution held not to be improper or unfair – ss 85(2), 135, 138,  Evidence Act 1995  (Cth)

CONFESSIONS AND ADMISSIONS – in criminal proceedings – oral record of interview not signed or acknowledged as true by accused – record inadmissible – s 86(2)  Evidence Act 1995  (Cth)

CONFESSIONS AND ADMISSIONS – in criminal proceedings – made on tape recording – whether admissions influenced by threats of violence towards accused – whether requirement for threat to be conveyed by “person in authority” – source of threat irrelevant – statements inadmissible – s 84,  Evidence Act 1995  (Cth)

WORDS AND PHRASES – “admission”, “previous representation”, “person in authority”

Evidence Act 1995  (Cth), ss 84(1), 85(2), 86(2), 86(4), 135, 138,