Category Archives: s. 116

Application by Thomas Hudson Wilson pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1792 (16 December 2014)

CRIMINAL LAW – application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – photo identification evidence – no special facts or special circumstances raised – identification of seized items – no sense of unease or disquiet required raised – application dismissed

R v Smith (No.3) [2014] NSWSC 771 (3 June 2014)

CRIMINAL LAW – evidence – identification evidence – modes of identification – other visual identification – single photograph – accompanying online news article
CRIMINAL LAW – evidence – identification evidence – admissibility – single photograph – unreliability – displacement effect
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; s 137 – prejudicial evidence – probative value – unfairly prejudicial to accused – whether danger of unfair prejudice to the accused outweighs probative value

Peterson (a Pseudonym) v The Queen [2014] VSCA 111 (6 June 2014)

CRIMINAL LAW – Appeal – Interlocutory appeal – Review of the trial judge’s refusal to certify with respect to interlocutory decision – Identification evidence – Applicant arraigned and pleaded not guilty to an indictment containing a charge of intentionally causing serious injury – Complainant identified the applicant from a photograph on Facebook – Whether probative value of identification evidence outweighed by the danger of unfair prejudice – Trial judge refused to exclude the identification evidence – Application was made for certification – Certification refused – Application to review certification decision refused – Interlocutory decision plainly correct – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for review – Criminal Procedure Act 2009 (Vic) ss 295 (2)–(3), 296, 297 (2).

Wood v R [2012] NSWCCA 21 (24 February 2012)

CRIMINAL LAW – appeal – conviction – unreasonable verdict – unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence – jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW – appeal – conviction – identification evidence – probative value – “displacement effect” – appropriate directions – whether evidence of similar appearance is identification evidence. CRIMINAL LAW – appeal – conviction – expert evidence – identification and proof of assumptions by admissible evidence – qualification of expert – weight to be given to expert evidence.
CRIMINAL LAW – appeal – conviction – expert evidence – breach of Expert Witness Code of Conduct – whether breach of Expert Witness Code of Conduct goes to admissibility or weight – discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW – appeal – conviction – evidence – admissibility – relevance.
CRIMINAL LAW – appeal – conviction – whether a conclusion of fact is an indispensable intermediate fact – need for a Shepherd direction – Shepherd direction not required.
CRIMINAL LAW – appeal – conviction – whether trial miscarried because of prejudice occasioned by the Crown prosecutor – prosecutor’s duty of fairness – whether prosecutor breached trial judge’s ruling – whether prosecutor invited jury to invert the onus of proof – whether prosecutor impermissibly gave personal opinions – whether prosecutor misrepresented evidence – whether prosecutor failed to adhere to case theory.
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – need for evidence of enterprise and participation by the accused.
CRIMINAL LAW – evidence – lack of evidence to support motive – dangers of inviting speculation as to motive – whether unfair prejudice occasioned.
CRIMINAL LAW – new and fresh evidence – evidence not disclosed by prosecution at time of trial.

Connelly v Allan [2011] ACTSC 170 (13 October 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal allowed in part.

CRIMINAL LAW – evidence – evidentiary matters relating to witnesses and accused persons – identification – voice identification – whether warning required under s 116 of the Evidence Act 1995 (Cth) – warning required.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – whether miscarriage of justice in absence of warning about voice identification evidence – no miscarriage of justice.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – whether sentencer erred in rejecting a community service condition to a good behaviour order when sentence of imprisonment suspended – error found and appellant to be re-sentenced.

Braslin v Tasmania [2011] TASCCA 14 (13 October 2011)

Criminal Law – Evidence – Identification evidence – Warning advisable or required – Adequacy of warning – Generally – Special need for caution – Reasons for that need generally and in the circumstances.

Evidence Act 2001 (Tas), ss116, 165(2).

R v Clarke (1997) 97 A Crim R 414, followed.

Aust Dig Criminal Law [2948]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal allowed – Misdirection as to topic not covered in cross-examination.

Browne v Dunn (1893) 6 R 67, referred to.
Aust Dig Criminal Law [3490]

R v Bauer [2011] ACTSC 127 (16 August 2011)

CRIMINAL LAW – trial by judge alone – assault – damage to property – discrepancies between evidence of complainants – identification evidence not reliable to establish accused’s involvement – prosecution evidence did not exclude alibi raised – reasonable doubt as to accused’s presence at the relevant occasions and times of the alleged incident – accused not guilty on all charges.

Evidence Act 1995 (Cth), Pt 3.2, ss 65(1), 65(3), 116(1)(a), 116(1) (b), 165(1) (b), 190

R v Jacka [2011] ACTSC 63 (14 April 2011)

CRIMINAL LAW – trial by judge alone – identity evidence – considerations to be taken into account – whether “Molotov cocktail” falls within the definition of prohibited weapon under the Prohibited Weapons Act 1996 – definition of “damage property” and “deface the property” under the Criminal Code 2002 – accused guilty on both charges

Evidence Act 1995 (Cth), ss 116, 165(1)(b)

M A v The Queen [2011] VSCA 13 (27 January 2011)

CRIMINAL LAW – Interlocutory appeal – Admissibility of identification evidence – Certification by trial judge pursuant to s 295(3)(a) Criminal Procedure Act 2009 – Whether ruling was attended by sufficient doubt to require certification – Leave to appeal ordinarily inappropriate where short trial or where ruling concerns routine evidentiary questions involving exercise of discretion – Evidence Act 2008 s 137 – Whether principles in House v The King apply – Probative value – Leave to appeal refused

Holschier v State Parole Authority [2009] NSWSC 916 (11 September 2009)
judicial review
error of law on face of record
jurisdictional error
decision of State Parole Authority
determination not to rescind order revoking parole
reasonableness of decision
onus of proof
not accepting evidence despite finding not untruthful
whether witnesses had interest in outcome of proceedings
assessment of voice identification evidence

Aslett v R [2009] NSWCCA 188 (29 July 2009)

[2009] NSWCCA 188

appeal and new trial
identification evidence
in-court identification
failure by trial judge to discharge jury
failure to direct jury that evidence of no value on identification issue
failure to specify weaknesses in identification evidence
the displacement effect
application of the PROVISO
conviction not inevitable.

FDP v R [2008] NSWCCA 317 (18 December 2008)

[2008] NSWCCA 317

Criminal Law – Appeal and New Trial – rule 4 – objection not taken to evidence – whether judge should have rejected evidence relying upon s 137 of Evidence Act – whether evidence prejudicial – Summing Up – whether judge failed to warn jury against tendency reasoning – Evidence – scope of s 137, whether requires judge to reject evidence where objection not taken – Sentencing – Malicious wounding and child abduction – whether sentences manifestly excessive.

Evidence Act 1995 – ss 41, 66, 116, 130, 137

REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37 (6 May 2004)

[2004] NSWCCA 37

Criminal law – sexual offences – identification issues – Evidence Act, s116 – rule 4 – directions as to meaning of “beyond reasonable doubt” – impact of media publicity upon fair trial – directions about suspect’s refusal to answer questions in ERISP – directions about lies – consciousness of guilt directions – complainant’s evidence as to belief of accused’s guilt in matter involving inference – juror misconduct – unauthorised view and experiment – admissibility of evidence of same – appropriate directions to juries prohibiting independent enquiries (D)

Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116

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


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 Linard Shamouil [2006] NSWCCA 112 (12 April 2006)

[2006] NSWCCA 112

CRIMINAL LAW – Crown Appeal – Exclusion of Evidence – Jurisdiction to hear appeal – Whether exclusion “substantially weakened” Crown case – Exclusion of evidence of cogency or force will “substantially weaken” Crown case – Evidence to be considered on the assumption that it is accepted by the jury – Criminal Appeal Act 1912, s5F(3A)

EVIDENCE – Probative value – Whether reliability or weight relevant to determination of probative value – Rarely relevant – Evidence Act 1995, s 137

CRIMINAL LAW – Crown Appeal – Whether trial judge erred in excluding evidence on the basis that its probative value outweighed by danger of unfair prejudice – Where trial judge took into account credibility when assessing probative value – Where trial judge failed to identify manner in which prejudice unfair – Evidence Act 1995, s 137

Evidence Act 1995: ss 55(1), 97(1)(b), 98(1)(b), 101, 103(1), 115, 116, 135, 137, 165

REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 (7 April 2004)

[2004] NSWCCA 74

Criminal appeal – kidnapping and sexual assault in company – separate trial applications – evidence of prior convictions – whether good character had been raised – identification evidence – directions on identification – whether defence submissions unsupported by evidence impacted upon fair trial for co-accused – judicial response thereto – whether warning about unreliability of evidence of co-accused appropriate – directions in relation to failure to testify – whether comment” infringed Evidence Act, s20(2) – whether address of counsel for one defendant caused co-accused’s trial to miscarry – whether verdicts unreasonable – evidence that medical examination of complaints was “consistent” with their history of assaults. (D)

Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2)

Mouroufas v R [2007] NSWCCA 58 (9 March 2007)

[2007] NSWCCA 58

Conviction appeal – whether an “identification” direction required under s116 and 165 of the Evidence Act 1995 – appellant’s counsel elicited evidence of the whole of the appellant’s criminal record – whether unfairness resulted – whether any rational or reasonable explanation for eliciting this evidence – miscarriage of justice – whether “cultivation of not less than the commercial quantity of plants” requires the actual handling of that number of plants by an offender for the element of the offence to be made out.

Kanaan & v R [2006] NSWCCA 109 (13 April 2006)

[2006] NSWCCA 109

Assassination of head of criminal organisation by members of that organisation — joint criminal enterprise — Crown case relied principally on evidence of former member of organisation who might reasonably be supposed to have been criminally concerned in that enterprise — witness given undertaking by Attorney General that, provided the evidence he gave was the truth, his evidence would not be used against him. – Bases on which “accomplice” evidence may be unreliable — extent to which judge required to warn jury about matters not within their general experience and understanding — except in relation to identification evidence, judge required to do no more than put the respective cases for the Crown and the accused accurately and fairly to the jury. – Direction that dangerous to convict on uncorroborated evidence of “accomplice” unnecessary but not prohibited — whether independent support for evidence of “accomplice” may be found in evidence of another “accomplice”. – Evidence of negative identification by Crown witness — no application by Crown prosecutor to cross-examine witness — Crown prosecutor asks jury to disbelieve her evidence — whether leave to cross-examine would have been given — whether accused lost opportunity to call evidence supporting negative identification made — nature of directions concerning negative identification.

Ilioski v R [2006] NSWCCA 164 (10 July 2006)

[2006] NSWCCA 164

Appellant charged with wounding with intent to murder or alternatively to do grievous bodily harm – found guilty of the statutory alternative of malicious wounding – principal issue at trial was identification – whether verdict unreasonable – whether directions given on issue of identification adequate – trial judge’s obligation under s 116 of the Evidence Act 1995, to inform the jury of special need for caution both generally and in the circumstances of the particular case, arises whatever defence is raised and however the case is conducted – that obligation relates to the reliability of the identification evidence, not to its honesty – bias does not fall within s 116, and obligation to give directions relating to bias depends on how the case was conducted – need for identification parade, s 114 of the Evidence Act – negative identification evidence – compromise verdict – whether miscarriage of justice based on accumulation of conduct by appellant’s counsel at trial.

Gardiner v R [2006] NSWCCA 190 (21 June 2006)

[2006] NSWCCA 190

CRIMINAL LAW – Appeal against conviction – whether jury’s verdicts were inconsistent – CRIMINAL LAW – subpoenas – identity of police informers – whether legitimate forensic purpose – CRIMINAL LAW – public interest immunity – police informers – whether defence could show that desired evidence would help demonstrate innocence – EVIDENCE – whether evidence of guns at one location is tendency or coincidence evidence that is probative of knowledge of guns at another location – whether admission of evidence led to a substantial miscarriage of justice – whether to apply the proviso in s 6(1) of the Criminal Appeal Act – EVIDENCE – definition of identification evidence – recognition evidence – whether trial judge’s directions complied with s 116 and s 165 of the Evidence Act.

Evidence Act s 97 and s 98

Collins v R [2006] NSWCCA 162 (22 May 2006)

[2006] NSWCCA 162

appeal against conviction

application for leave to appeal against sentence

aggravated armed robbery with wounding

conflicting accounts given by complainant

leave granted to Crown Prosecutor to cross-examine complainant

directions to jury with respect to evidence of identification

complainant and complainant’s husband known to appellant

complainant’s husband pleaded guilty to charge of accessory after fact of armed robbery of his wife

complainant’s out of court representations at variance with trial identification evidence

directions to jury

unreliable evidence

descriptive evidence

warning not required

warning not prohibited

no error in directions to jury

directions adequate

whether verdict unreasonable

appellant’s prior criminal record

offence committed whilst on conditional liberty

victim vulnerable

planned criminal activity

whether appellant knew of victim’s vulnerability

pre-trial period in custody

sentence to reflect pre-trial period in custody

Evidence Act 1995 s38, s116, s165

Brown v R [2008] NSWCCA 306 (17 December 2008)

[2008] NSWCCA 306

appeal and new trial and inquiry after conviction
appeal and new trial
miscarriage of justice
misdirection and non direction
whether trial judge failed to adequately direct jury in relation to identification evidence
Evidence Act 1995 s 116
appeal and new trail and inquiry after conviction
appeal and new trial
miscarriage of justice
whether trial miscarried on account of prosecutor inviting jury to consider submission “why would the victim lie?”
whether allowing the jury to consider that question reversed the onus of proof

Mackenzie v R [1996] HCA 35; (1996) 190 CLR 348; (1996) 141 ALR 70; (1996) 71 ALJR 91 (3 December 1996)

[1996] HCA 35

Criminal Procedure – Perjury and false statement in course of trial – Whether verdicts inconsistent and unsafe and unsatisfactory – Defendant tried on alternative counts, including counts with aggravating circumstances – Not necessarily inconsistent for jury to find defendant guilty of lesser offence – Crimes Act 1900 (NSW), ss 327, 328.

Criminal Procedure – Perjury and false statement in course of trial – Whether lack of proper direction by trial judge on false evidence given knowingly as distinct from mistakenly without criminal intent – Failure to do so led to miscarriage of justice.

Festa v R [2001] HCA 72; 208 CLR 593; 185 ALR 394; 76 ALJR 291 (13 December 2001)

[2001] HCA 72

Criminal law – Evidence – Admissibility – Exclusion of evidence – Identification evidence – Usual precautions for identifying suspects not followed – Whether probative value of identification evidence outweighed danger of unfair prejudice to the accused – Whether admission of identification evidence resulted in a miscarriage of justice.

Criminal law – Evidence – Identification evidence – Whether trial judge adequately directed the jury about the deficiencies of identification evidence.

Criminal law – Evidence – Weapons and ammunitions found at the unit of co-accused were of the same character as those used in the robberies but were not purchased until after the robberies – Whether evidence of weapons was admissible as “propensity” evidence – Whether the trial judge adequately directed the jury in relation to the discovery of weapons and ammunitions.

Criminal law – Evidence – Admissibility – Whether evidence of an association between the accused and co-accused was admissible – Whether direction by the trial judge about the association was a material misdirection.

Criminal law and practice – Appeal against conviction – Application of “proviso” – Whether errors by trial judge constituted a substantial miscarriage of justice – Whether evidence was so strong that no reasonable jury could fail to convict the accused.

Words and phrases – “circumstantial identification evidence” – “positive-identification evidence” – “unfair prejudice”.

Criminal Code (Q), ss 408, 668E.

Bulejcik v R [1996] HCA 50; (1996) 185 CLR 375 (17 April 1996)

Criminal law and procedure – Tape recording of accused’s unsworn statement played to jury – Whether voice comparison or voice identification – Use of material not admitted into evidence – Trial judge’s directions to jury on permitted use – Whether quality and quantity of material adequate to make comparison – Whether sufficient warnings given – Risk of use of tape as “real evidence” – Whether proper to play tape in the circumstances.

Criminal law and procedure – Procedural matter – Tape played after summing up completed – Whether constitutes procedural irregularity.

Crimes Act 1900 (NSW), s 402.

Clifford v R [2004] TASSC 16 (10 March 2004)

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Identification evidence – Direction to jury – Whether warning required or advisable – What amounts to “identification evidence”.

Evidence Act 2001  (Tas), ss3(1), 116.

R v Smith [2000] NSWCCA 468; Dhanhoa v R [2003] HCA 40; (2003) 77 ALJR 1433; 199 ALR 547, applied.

Aust Dig Criminal Law [613]