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