Evidence

MA v The Queen

As both ss 79(2) and 108C(2) make clear, evidence as to the range of behaviours typical of victims reacting to sexual abuse might fall under these subsections. In the present case, the evidence which was permitted to be led from Dr Sullivan did not go to matters directly in issue such as whether, when and by whom the complainant was abused. The evidence was led to rebut an argument that the complainant's behaviour was harmful to her credit. There fore, s108C is the right test in current case. For present purposes, it is sufficient to say that Dr Sullivan's evidence as to patterns of victims' behaviour was relevant to rebut the defence case as to counter-intuitive behaviour on the complainant's behalf. The evidence bore upon the complainant's credibility as contemplated by s 55 in the specific manner contemplated by s 108C(2). It was capable of substantially affecting the assessment of the complainant's credibility as required by s 108C(1).

R v Bauer

Fact: The respondent was found guilty and convicted of 18 charges of sexual offences committed against the complainant ("RC") over a period of approximately 11 years between 1988 and 1998. He was sentenced therefor to nine years and seven months' imprisonment with a non-parole period of seven years. He appealed against conviction to the Court of Appeal of the Supreme Court of Victoria. Held: Test applied in current case： The question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ. Application: In this case, there was only one complainant, all of the charged and uncharged acts were alleged to have been committed against her, and none of them was far separated in point of time or far different in nature and gravity from the others. Here, the "very high probative value" and thus admissibility of the evidence of each charged and uncharged act rested on the logic that, where a person is sexually attracted to another and has acted upon that attraction by engaging in sexual acts with him or her, the person is the more likely to seek to continue to give effect to the attraction by engaging in further sexual acts with the other person as the opportunity presents. The trial judge was correct to hold that RC's evidence met the s 97(1)(b) test of significant probative value on that basis.

HG v The Queen

Facts: A man was charged with two counts of sexual intercourse with a child under the age of ten years, who was the daughter of his de facto wife. The judge was provided with a transcript of evidence given by the psychologist at the committal proceedings. The report included an opinion that the complainant had been assaulted by another person approximately six years before the times of the alleged incidents. The Crown contended that the report from psychologist was not admissible. Held: If all that Mr McCombie had said was that, based on his study, training and experience, he considered that the behaviour of the complainant during 1992 and 1993, as recounted to him by others, appeared to be inconsistent with her having been sexually abused during that time (the plausibility of such a proposition is not now in issue), then that might have been one thing. However, the opinion of, although the complainant had been abused, the abuse had occurred back in 1987 when, for a period of a month, she was in the custody of her father, and that it was the father who was the abuser. That opinion was not shown to have been based, either wholly or substantially, on Mr McCombie's specialised knowledge as a psychologist. On the contrary, a reading of his report, and his evidence at the committal, reveals that it was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.

Honeysett v The The Queen

Facts: A man was convicted of the armed robbery of an employee of a suburban hotel. At his trial, the prosecution had led evidence from an anatomist regarding anatomical characteristics which were common to both the man and to one of the robbers whose offending had been captured by closed-circuit television cameras. Held: The respondent is nonetheless right to say that the appeal does not raise an issue of whether "body mapping" was shown at the trial to constitute an area of "specialised knowledge". Professor Henneberg's opinion was not based on his undoubted knowledge of anatomy. Professor Henneberg's knowledge as an anatomist, that the human population includes individuals who have oval shaped heads and individuals who have round shaped heads (when viewed from above), did not form the basis of his conclusion that Offender One and the appellant each have oval shaped heads. That conclusion was based on Professor Henneberg's subjective impression of what he saw when he looked at the images. This observation applies to the evidence of each of the characteristics of which Professor Henneberg gave evidence.

LMD v R

Facts: A woman, born in 1983, alleged that she was sexually abused by her uncle in 1991 and 1993. She told her best friend when she was 15 (1999) and her boyfriend when she was 18 (2000). the matter was reported to police in 2003. The appellant was convicted in 2012 and appealed his convictions on a number of grounds, one ground was that the complaints of sexual abuse should not have been admitted under s66. Held: The conditions of s66 were in my opinion clearly satisfied. That the events were fresh in the complainant's memory was demonstrated by her reaction to the approaches made by her boyfriend when sexual intercourse between them was contemplated. If the events were fresh in her memory then, so too were they likely to have been when the complainant spoke to her school friend some four years earlier.

Bayley v The Queen

Facts: Adrian Bayley received a jail sentence for the rape and assault of a woman that took place in 2000. Twelve years after the attack, the victim identified Bayley from a photograph seen on Facebook and later in a formal police identification procedure. At the time of the initial Facebook identification the victim knew about Bayley's involvement in Gillian Meagher's case. Bayley successfully appealed this conviction in 2016. The Court of Appeal held that the identification evidence in this case had multiple weaknesses and should not have been permitted at the initial trial. Held: The court states: Adopting the approach described by Heydon, and seemingly endorsed by the majority in IMM, GH's purported identification from Facebook was, in our view, not merely weak, but 'simply unconvincing'. Moreover, given the circumstances of the Facebook identification and the publicity surrounding the applicant's known involvement in the Jill Meagher case, the later photo board identification was virtually of no probative value whatever.

Em The Queen

Facts: An accused was tried upon charges of murder. When first arrested, he was taken to a police station for questioning where he was cautioned to the effect that he did not have to answer questions and that anything he said might be recorded and later given as evidence in court. He then stated he would refuse to answer questions if the police turned on either video or audio taping devices. Some weeks later, detectives obtained warrants permitting them to wear covert listening device transmitters and recorders. Wearing the devices, they met the accused and went with him to a park and questioned him there, reminding him that any answers he gave were voluntary but refraining from warning him that his answers might be recorded and given in evidence. In the course of the conversation, the accused made incriminating admissions which were recorded. At various points in the conversation, the police assured the accused that they were not tricking him. At all times the accused was unaware of the recording. Further, he believed that anything that he said which was not recorded could not be given in evidence. At the trial, the judge admitted into evidence the first part of the recording of the conversation in the park, but excluded the balance in the exercise of his discretion. The accused was convicted and appeal based on s90. Held: CJ Glesson: The mere fact that a conversation was being secretly recorded was not sufficient to make it unfair. Gummow and Hayne JJ, Gleeson CJ and Heydon J not deciding: The questions with which other sections of the Evidence Act deal (such as the reliability of statements to police and the consequences of illegal or improper conduct by investigators) are not to be dealt with under s 90. Section 90 will be engaged only as a final or safety net provision. Suggestions that the police obtained the appellant's admissions "improperly" are to be judged according to other sections and are not relevant to s 90. Kirby in dissenting

Quick v Stoland

Facts: An issue before the Full Court of the Federal Court was whether the trial judge erred in allowing into evidence a financial report into a company by Martin Madden, a qualified accountant and registered auditor. Mr Madden summarized in his report the contents of certain financial records of the company, including financial records not received in evidence before the trial judge. Held: The extra financial records used in Mr. Madden's report, is used to proved his expert opinions regarding to the status of the company. it is admissible to the trial under s60 for a purpose proof of the facts thereby asserted. However, it might be expected that a court would ordinarily limit the operation of s60 of the Act by exercising the power vested in it by s136 of the Act.

Aytugrul v The Queen

Facts: At a trial for murder, expert evidence was given of the analysis of mitochondrial DNA of a hair found on the deceased's thumbnail. The evidence showed that the accused could have been the donor of the hair and how common the DNA profile found in the hair was in the community. The results were expressed in evidence in two ways: that one in 1,600 people in the general population would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that 99.9 per cent of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage). The accused contended that the evidence given in the form of exclusion percentage was not admissible. Held: Held, that in the trial, where both the frequency ratio and the exclusion percentage had been given and the relationship of one to the other had been explained, there had been neither a wrong decision on any question of law nor a miscarriage of justice on any other ground. In assessing the danger of unfair prejudice to a defendant for the purposes of ss 135 and 137, regard must be had to the whole of the evidence that is to be given, particularly by the witness to whose evidence objection is taken.

R v XY

Facts: At the outset of the trial, the Crown sought a ruling that evidence of a complaint made by the complaint AB to a friend, CD, and to his parents was admissible pursuant to s66(2). After a voir dire hearing, the trial judge ruled that the complained evidence was inadmissible. The DPP appalled. Held: All these aspects of the representation, especially the nature of the event described, suggested forcibly and persuasively that the occurrence of the sexual incidents was indeed "fresh in the memory" of the complainant at the time it was made in 2007. Importantly, the complainant had placed the events as occurring when he had been in Years 2 and 3 at school. He had, in fact, been in Year 2 in 2003 and Year 3 in 2004. There was no inexactness or contradiction about the period of time mentioned to CD when the representation was made in 2007. Moreover, as I have said, the very nature of the events described, and their unusual features, had been recounted to CD in a manner that suggested those events were well and truly implanted in the complainant's memory. Despite the vivid picture painted, the trial judge appears to have paid no attention to, nor taken into account, this very telling feature. In my opinion, for the reasons advanced in this decision, the complaint made to CD in 2007 was fresh in the complainant's memory at the time the representation was made. Accordingly, I would find that the 2007 complaint evidence is admissible pursuant to s 66(2) of the Evidence Act.

Case Demir

Facts: Demir suffered an injury at work where all four fingers and part of her thumb had to be amputated from her right hand. She successfully sued her employer for negligence. The jury's award of damages was increased by the Court of Appeal. The employer appealed. Held: The majority of the HC found that the jury were bound to accept the uncontradicted and unchallenged evidence from the plaintiff that she would work until age 55 for the plaintiff was not cross-examined on the matter that when she would work.

IMM v R (s137)

Facts: At the trial, the complainant gave evidence that on a previous occasion, the accused ran his hand up her leg while she was giving him a back massage. The evidence was relied on an tendency evidence, namely that it showed that the accused had a sexual interest in his step-granddaughter and was prepared to act on it. The accused had unsuccessfully sought to have the complaint evidence excluded pursuant to s137. The trial judge approached the question of probative value for the purposes of s97 and 137 in the same way, namely the trial judge assumed the jury would accept the evidence and did not take into account factors such as credibility or reliability. Held: Upheld the decision of Shamouil. The majority of the court stated that it must also be understood that the basis upon which a trial judge proceeds, that the jury will accept the evidence taken at its highest, does not distort a finding as to the real probative value of the evidence. However, the circumstances surrounding the evidence may indicate that its highest level is not very high at all.

O' Leary v The King

Facts: B, an employee at a timber camp, and other fellow employees including the applicant took part in a drunken orgy which commenced on Saturday morning and continued until late on Saturday night. At about midnight B retired to his cubicle which was a short distance from that of the applicant. In the early hours of Sunday morning B was found in his cubicle in a dying condition. An examination of B showed that he had been struck on the head eight or nine times with a bottle after which, kerosene having been poured over him. His clothes had been set on fire. The applicant was found guilty of the murder of B. At the trial, evidence was admitted that the applicant at various times during the orgy had violently assaulted other employees. Some of these assaults were unprovoked and all consisted of brutal blows at the head. Held: The evidence was in for the doctrine of Res Gestae. Per Latham CJ: It is evidence of "facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued."

Apollo Shower Screens

Facts: Building and Construction administered a statutory scheme for leave provisions for temporary workers in the building and construction industry. There was concern that Apollo was in breach of the scheme. Apollo sought a declaration that its workers who installed prefabricated shower screens, wardrobe doors and shelving were not within the statutory definition of "workers within the industry" Hunt J: Once the plaintiff satisfy the evidential burden to bring the issue, it will throw the tactical burden (evidential burden ) to the defendant.

Butera v DPP

Facts: Butera and four others were convicted of conspiring to traffic in heroin. At the trial a tape recording of a conversation among some of the accused was played. The tape was mostly in punjabi, partly in English and Thai or Malay. IT was partly muffled and indistinct. The tape was played to the jury. Two interpreters, one for the accused and one for the prosecution, gave oral evidence of their translations and verified written translations were admitted as documentary exhibits and went into the jury room. Butera sought special leave to appeal on the basis that the judge erred in admitting the transcripts. Held: The majority court held that the transcripts had been properly admitted in evidence, and it was appropriate for the jury to have had them in the jury room. A tape recording which is indistinct may not yield its full content to the listener on its first paying over. It may need to be played over repeatedly before the listener's ear becomes attuned to the words or other sounds recorded. This situation has led courts to receive transcripts not as evidence of the conversation or other sounds recorded but as a means of assisting in the perception and understanding of the evidence tendered by the playing over of the tape. Where the quality of the recording is such that the provision of a transcript for the use of the jury would permit them clearly to follow an indistinct recording, a transcript may be seen as an aid to listening though it is not independent evidence of the recorded conversation. Although the contents of a document written in a foreign language or an oral statement in a foreign language cannot be proved without a translation into English of what is written or spoken, the translation must itself be given as evidence worn to by the person who makes the translation. The interpreter's evidence was contained in their respective translations of the Punjabi, Thai or Malay word recorded on the tape. the written translations were not copies of the tape in any relevant sense and they could not have been made admissible as an aid to the jury's understanding of the sounds recorded on the tape. Prima facie, the interpreter's evidence should have been given orally, as other testimonial evidence is given in a criminal trial.

CMG v The Queen

Facts: CMG was convicted of three charges of committing an indecent act with a child under the age of 16 (he was acquitted of three charges). The alleged offences occurred in January 2009 when the appellant was entrusted with the care of a seven-year-old girl, to whom he was distantly related by marriage. A ought itinerary for the occasion was agreed with the child's mother. When a day or two later, the child informed her mother that the appellant had taken her to his home, the mother's suspicious were aroused. The mother questioned her daughter and as a result she reported the matter to the police. The focus on the appeal was on the trial judge's comments about the reliability of the child evidence. During the direction, the judge refer academic study about child's behaviour. Held: 1. Judge is entitled to tell the jury that, the collective experience of the courts is that, the age of a witness is not determinative of his or her ability to give truthful and accurate evidence. 2. It is not part of the judge's task to put before the jury a relevant expert's learning without that expert having been called as a witness.

Caterpillar Inc v John Deere Ltd

Facts: Caterpillar claimed John Deere was infringing an Australian patent relating to tractors. Deere denied infringement and cross-claimed seeking revocation of the Caterpillar patent on various grounds of invalidity. Deere gave notice under s67 of an intention to adduce hearsay evidence under the exceptions provided in s63(2) or s64(2). The evidence was depositions taken in an American case concerning an American expert, Graway, an inventor of the Caterpillar patent. Deere claimed Grawey was unavailable, as thy had written to him inviting him to come to Australia to give evidence in the case. The expert did not respond. Held: 1. No reasonable steps have taken by Deere to compel Mr Graway's attendance within the meaning of cl4(1)(f); 2. Moreover, and as a separate ground for holding s63 inapplicable, the relevant representations were not, for the purposes of s63(2)(b), contained in a document within the meaning of cl6 of Pt 2 of the Dictionary. Therefore, Deere failed to show Mr Grawey is not available, he is taken to be available under Dictionary Pt2, cl4(2), then s64(2) apply. However, in current case, the expense of bringing the expert from US would not be disproportionate in the context of the present case. It would not be undue expense. No other reason was advanced why it would not be reasonably practicable to call him.

Re Dann

Facts: Dann was convicted of having sexual intercourse with his seven-year-old stepson in the family home. Dann was not charged in relation to three other incidents of sexual assault, but the stepson gave evidence about them over objection. The first ground of appeal was that a Dr Packer's evidence should have been rejected under s137. Dr Packer's evidence was that the stepson had dilation of the anus which could be consistent with either constipation or sexual abuse. The defence objected on the ground that the evidence was ambivalent. Held: The unattractive nature of the subject-matter of the evidence related to Dr Packer was not of itself prejudicial.

Drabsch v SGIC Ltd

Facts: During Re-examination, the counsel asked: "You don't mean of lie, just jungle of brain right?" Held: Under the common law, re-examination is confined to matters arising out of cross-examination, where cross-examination has left an inaccurate, incomplete or unclear picture. The re-examination will be permitted to qualify or explain the evidence of the witness in cross-examination. This may extend to subjective considerations going to the mental state of the witness at the time of giving the answer in cross-examination.

Ryland v QBE Insurance

Facts: During the examination, the trial judge asked many questions against the witnesses. Held: In current case, the question trial judge asked is on the purpose to clarify the content of the evidence, which is permissible.

De Silva v The Queen

Facts: Following a trial, on 11 September 2012, De Silva was found guilty by a jury of two charges of sexual penetration of a child under 16 and five charges of indecent act with or in the presence of a child under 16. The offences were alleged to have occurred on various occasions between 16 December 1997 and 31 January 2000. ML, the complainant, was aged between 9 and 12 years during that period, and the appellant was aged 44 to 46. The appellant was a friend of ML's father. They had regular contact through their work and through mutual membership of a suburban cricket club. Their two families often socialised. They were both of Sri Lankan origin and were of the Catholic faith. ML referred to the appellant as "uncle", which she said was a mark of respect for an elder in her culture. Held: In this case, however, the evidence of Dr Flower strayed — without objection — into areas in which it had not been shown that she was qualified to express an opinion. Those areas included the tenets of the Catholic faith (and its possible effects on non-disclosure), and aspects of Sri Lankan culture. Moreover, despite the fact that she had not interviewed ML, Dr Flower was permitted to speculate about what may have been behind ML's non-disclosure. As the Crown acknowledged in written submissions, "[t]he evidence of Dr Flower went beyond the general educative role of explaining why a complainant might not provide a complete account when she first disclosed her abuse". Further, the respondent conceded that the appellant could have objected successfully to parts of Dr Flower's evidence; and, had he done so, her evidence would have been restricted to an "educative" role.

Foster v The Queen

Facts: Foster, an Aboriginal man of 21, was convicted of setting fire to a local school. The prosecution case rested on a seven-line confessional statement, which the appellant had signed while he was in custody. In the voir dire the appellant alleged that he had only signed the statement because of threats made against him and his brother. The accused was unlawful detained by the police in current case. Held: When one has regard to the nature and the effects of the police infringement of the appellant's rights and to the other circumstances and considerations o which reference has been made, it is plain that the case was one in which a proper exercise of the learned judge's discretion required the exclusion of evidence of the confessional statement. Therefore, in current case, such that the evidence should also have been excluded on the ground that the seriousness of the unlawful conduct on the part of the police was such that consideration of public policy precluded its reception.

R v GW

Facts: GW was convicted of an act of indecency in the presence of R, his daughter, R being a person under the age of 10 years. The offence was alleged to have occurred between 29 March 2012 and 2 April 2012. R was 5 years old at that time. Following a visor dire hearing, the trial judge determined that R's evidence should be received unsworn. The appellant appealed on the ground that the trial judge failed to direct the jury concerning the significance of the fact that R's evidence was unsworn. Held: - The default position of witness is competent (s13(6)); - Unless the judge is satisfied on the balance of probabilities that the witness lacked the requisite capacity in s13(3), the judge can't treat the witness as incompetent. - It is not enough the judge just saying the witness is incompetent, the positive finding of lacking capacity is necessary. - The EA does not treat unsworn evidence as of a kind that may be unreliable. There was no requirement to warn the jury that the witness's evidence may be unreliable because it was unsworn. Nor was there a requirement under the common law to warn the jury of the need for caution in accepting the witness's evidence and in assessing the weight to be given to it because it was unsworn. Nor was there a requirement under common law, falling short of a warning of that kind, to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of the witness's evidence.

Green v The Queen

Facts: Green and others were convicted of rape. Green appealed on the ground that the trial judge improperly instructed the jury as to the onus of proof. Held: 1. Explaining the meaning of "beyond reasonable doubt" is dangerous and would confuse the juries; 2. A reasonable doubt which a jury may entertain is not to be confined to a "rational doubt", or a "doubt founded on reason" in the analytical sense or by such detailed process as those proposed by the summing up of the learned judge. A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. 3. the jury might have the impression that a comfortable satisfaction of the accused's guilt would be enough to warrant conviction. such a standard of conduct on the part of a jury in a criminal trial would in our opinion be a denial of that traditional solicitude for certainty expressed in the traditional formula as to the onus of proof. Instead, the trial judge can properly instruct the jury that fantastic and unreal possibilities ought not be regarded by them as the source of reasonable doubt

Lithgow City Council v Jackson

Facts: Jackson was found unconscious and injured in a drain, Jackson conceded that the Council was only liable if he fell from a vertical retaining wall. Jackson could not remember how he fell. A document called a "Patient Healthcare Record" recorded the following under the heading "Patient History"--?Fall from 1.5 meters onto concrete The record was signed by the ambulance officers. Held: What is the "asserted fact"? If the "asserted fact" is "the respondent fell 1.5 metres onto concrete", at once a difficulty arises which was not debated by the parties. Section 69(2)(a) cannot apply, because the makers of the representation, the ambulance officers, did not have personal knowledge of a fall of 1.5m onto concrete, and could not reasonably be supposed to have had it, since the fall had happened some time before they arrived. And s 69(2)(b) cannot apply, because even if it were the case that the ambulance officers were told by bystanders that the respondent fell in that fashion, the bystanders did not have personal knowledge of the fall, and could not reasonably be supposed to have had it: again, the fall took place before the bystanders arrived.

Harris v The Queen

Facts: Harris was convicted of the manslaughter of Wright. Wright was leaving Hurstville RSL when Harris asked for a cigarette. Harris became aggressive and punched Wright in the head. Wright was taken to hospital but not admitted. The next day he attended a police station and make a statement. Approximately, one week later he died from traumatic brain injury. The deceased's statement was admitted in the trial under s65(2)(b) and (c). The basis of Harris's appeal was the Wright's statement ought not to have been admitted as it was not made shortly after the events described, and the circumstances in which it was made were such as did not render it unlikely that what was said was a fabrication. Held: The Crown urged the contrary considerations: (i) the level of intoxication was mild according to the ambulance officer, Christopher Roach, who attended upon the deceased at the club immediately after the attack. Ambulance Officer Roach's assessment was that the deceased was "still quite aware of his faculties"; (ii) the deceased's version was not inherently unlikely; (iii) the statement given to the police officer was a formal statement which commenced in the usual way: This statement made by me accurately sets out the evidence which I would be prepared, if necessary, to give in court as a witness. The statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable for prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true. (iv) in making his statement, the deceased would have appreciated that there were witnesses in the club that the police would interview concerning what had occurred; (v) the statement was made after the deceased had had some treatment at the hospital but before the CAT scan and hence before he was in a position to appreciate the nature and extent of his injuries. In my opinion, there is substance in the submissions advanced by the Crown and summarised above concerning those circumstances which made it unlikely that the representations in the statement were fabricated.

R v Helmhout

Facts: Helmhout was convicted of murder. In his appeal he argued that a confession he made while in custody of the police should not have been admitted. Helmhout is Aboriginal and therefore the Police failed to notify the accused about the legal aid procedure. On appeal, Helmhout challenged the decision to admit that evidence, submitting that the trial judge erred in concluding that the contravention was not reckless vis s 138(3)(e) and merely involved the custody manager "overlooking" his obligations under the regulations. Held: The CCA dismissed the appeal, holding that the findings made by the trial judge were open to her and that her discretion had not miscarried.

Morris v The Queen

Facts: In Prosecution's case, P called the complainant, cross-examiner showed the video to her in Re-examination, P cleared up the date of the video might be changed. Judge required expert evidence regarding that but P didn't call expert and rest the case. In Defence's case, the defence counsel never lead expert evidence regarding the date of the video although they told P they would. The D then closed the case. P required to re-open the case and call for expert evidence. Judge granted and the accused was convicted and appealed. Held: Here when P delievered the case, even judge has stepped in twice asking about the expert evidence. P failed to call the expert anyway. Therefore, P should force the situation might happen and the test failed: it was no the extraordinary situation. However, for there is no substantial miscarriage of justice based on the fact, the appeal was dismissed.

DPP v Newman

Facts: In a trial of sexual offences which has commenced in the county court, both the prosecution and defence agreed that the accused should have been entitled to lead evidence of good character, and, once having done so, should reap the benefit of a direction on good character. The trial judge refused to give a good character direction favourable to the accused. The DPP sought leave to appeal against the trial judge's decision to ensure act the trial did not miscarry as a result. Held: The specific facts about current case, is the Crown did not lead the evidence about the accused's animal cruelty conviction for their confidence regarding the strength of the case. Therefore, the trial judge is not being asked to pretend the evidence does not exist. The evidence simply does not exist until it is lead in the trial. Therefore, based on the current evidence lead to the trial by the defence counsel, the trial judge was wrong to refuse to give a direction concerning the respondent's good character.

Dascreef Pty Ltd v Hawchar

Facts: In this case, the trial judge admitted the expert opinion and quote the numerical level of assumption made by the expert in the report to establish the judgment. Held: Dr Basden gave evidence of his training, study and experience. He did not give evidence asserting that his training, his study or his experience permitted him to provide anything more than what he called a "ballpark" figure estimating the amount of respirable silica dust to which a worker using an angle grinder would be exposed if that worker was using it in the manner depicted in the photograph of Mr Hawchar or a video recording Dr Basden was shown. Indeed, in his written report, Dr Basden had pointed out that he had seen the use of an angle grinder in this way only once before. And he gave no evidence that he had then, or on any other occasion, measured directly, or sought to calculate inferentially, the amount of respirable dust to which such an operator was or would be exposed. There was, in these circumstances, no footing on which the primary judge could conclude that a numerical or quantitative opinion expressed by Dr Basden was wholly or substantially based on specialised knowledge based on training, study or experience. Therefore, Dr Basden's evidence was not admissible to found the calculation made by the primary judge of the level of respirable dust to which Mr Hawchar was exposed.

The Council of the NSW Bar Association v Franklin

Facts: Instead of the convictions against Franklin, the council wanted to rely on the underlying facts of the convictions. However, they don't want to call all the witnesses of the trial again, instead of calling for the relevant transcripts as evidence. Held: s64(2) applied.

Ainsworth v Burden

Facts: It is a defamation case heard before jury. The defamation arise from a letter written by Burden, asserting that Ainsworth is not a fit and proper person for holding gaming license. At the trial, the plaintiff sought to tender in support of his reply five judgement of the licensing court accepting that the plaintiff was a fit and proper person, together with the report of the investigation by the senior detective into the allegations made by the defendant in his letter to the Police Minister. The plaintiff's case was to demonstrating malice on the part of the defendant's letter in the face of truth. The trial judge rejected the contents of the document on the basis that they were unfairly prejudicial under s135, in the strength of the findings in favour of the plaintiff made in those documents was such that the jurors would not be able to put them out of their minds when considering the denfence of truth. Held: 1. s135(a) it is not unfairly prejudicial to a party if the material tendered by his opponent merely proves or strongly supports the opponent's case. 2. s135(b) when the order under s136 was made, and the direction to the jury was delivered by the judge, the perceived prejudice caused by the jury can be cured or reduced; 3. no question of procedure fairness for the defendant had been involved in each of the licensing court proceedings, so he had previously had an opportunity to test the material which the licensing court had accepted.

R v Khan

Facts: Khan was tried for the murder of his friend, who was renting a room in the accused's house. While the accused was away in Fiji, the friend and the accused's wife began an affair. One night, when the accused had told his wife he would be away from the night, he returned home to find his wife and friend cutting on the bed. A fight ensued and the friend was killed. The prosecution wanted to call the accused's wife to testify. She objected. The issue was whether the judge could compel her to testify under s18. Held: Test under s18(6) The court consider that her being required to give evidence would be likely to cause harm to her relationship with the accused of a nature and extent which outweighs the desirability of having the evidence given. Factors considered under s18(7) (a) The case is a murder charge; (b) the wife's evidence would be of relatively little weight; (c) the significant matters in it can be proved in the Crown case by other evidence; (d) The nature of relationship is the accused is the Mrs Khan's husband of ten years standing and the father of her children. (e) not relevant here. Conclusion: No compelling standing.

Kozul v The Queen

Facts: Kozul was convicted of maliciously shooting at Rajcinoski with the intent to do grievous bodily harm, and recklessly discharging a firearm so as to endanger the public. Kozul, who ran a cabaret, refused to allow Rajcinoski into the cabaret. He claimed that Rajcinoski and then made a movement that made Kozul think he was reaching for a knife. Kozul then drew a revolver, alleged for self-defense, but said that Rajcinoski struck him on the hand, causing the revolver to discharge into the streat. The Crown alleged the revolver had been deliberately fired. A ballistics expert presented evidence on the ease with which a revolver would accidentally discharge under such conditions. In the course of summing up, the judge invited the jury to examine and test the unloaded revolver. On appeal, it as contended that such an invitation was wrong. Held: The revolver was an exhibit in the case, and was just as much part of the evidence as the oral testimony of the witnesses. The jury were of course entitled to examine it, and to have regard to it in reaching their verdict. However, the jury trying issues of fact are not restricted merely to looking at material objects that have been produced in evidence. They may if necessary touch and handle them, and engage in a limited amount of simple experimentation with them. However, when the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible.

Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage

Facts: Kyluk pleaded guilty to an environment offence of picking plants that were part of an endangered ecological community. At the sentence hearing, Kyluk objected to expert evidence of Mr Tulau on which the prosecutor sought to rely. Mr Tulau provided an expert repot about the soil present at the site of the offence and relied on particular size analysis performed by a laboratory. The particle analysis was not admitted as evidence in the trial. Mr Tulau's report did not reveal the tests the laboratory had undertaken in relation to the soil or by whom; or anything as to the chain of the ample, The issue on appeal was whether the expert report was inadmissible due to the factual basis for the opine not being proved by evidence. Held: Majority held: The primary judge erred by not having regard to the unfair prejudice to the appellant that might arise from the admission into evidence of the report and by not undertaking the weighing exercise required by the Evidence Act 1995 (NSW), s 135. Without the material from the laboratory being in evidence, the appellant could not evaluate and test the cogency of the conclusions expressed by the expert. The appellant was thereby unfairly disadvantaged. The probative value of the report was substantially outweighed by the danger that the evidence might be unfairly prejudicial to the appellant. Accordingly, the report should have been excluded under s 135. Schimdt J: The basis rule does not apply under s79, that the probative value of his opinions could simply not be tested or assessed, in the absence of evidence establishing critical facts on which his conclusions about the soil rested.

La Trobe

Facts: La Trobe Capital (a secured lender) sued Hay Property for a property valuation in respect of a 2.4 million loan to Jet Constructions. La Trobe claimed that Hay negligently valued land for purposes of the loan and, if properly advised, La Trobe would have sought to make an alternative loan. La Trobe called evidence from Mr Gidman. Mr Gidman gave evidence about what he said la Trobe would have done had it no lent 2.4 million to Jet. The primary judge had ruled that the evidence was relevant and not inadmissible due to s135. Hay appealed. Held: The ambiguity of the evidence does not make it excluded under s135. Counsel always has a strategic choice to make about how to deal with the shortcomings. Counsel may choose to explore and seek to expose those shortcomings in cross-examination, at the risk of allowing the witness to remedy the position through further evidence. Alternatively, counsel may choose to leave the evidence as is. To be faced with strategic decision is not to be burdened with a forensic disadvantage.

Lancaster v The Queen

Facts: Lancaster was convicted for sexual offences against two children under 16 years (CA and CB). Each of the complainants had files maintained by the Department of Human Services. The files were produced on subpoena at the request of the defence and the defence commissioned a consultant neuropsychologist to read the documents produced by DHS to opine on the mental state of each complainant and the effect of the mental state of the reliability of the complainant's testimony. The trial judge upheld the prosecution's objection that the documents were hearsay and inadmissible as business records under s69. Held: 1. For the purposes of the Evidence Act, 'business' includes a profession, calling, occupation, undertaking or activity engaged in or carried on by the Crown in any of its capacities, and thus includes the activities of rendering social welfare services which the DHS exists to provide. As so defined, the records maintained by the DHS of the facts, opinions and activities involved in rendering those services to the complainants were business records. 2. "directly and indirectly" It is enough to render the document admissible that it may be concluded that the representation was made by or on the basis of information supplied by someone who had personal knowledge of the fact within one of the alternative descriptions in s 69(2).[12] So long as the nature and context of the recorded representation permits that inference to be drawn, the supplier of the information need not be identified. 3. Application： - Dispute representation about the teacher's behaviour; it is a representation of fact made in a business record on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (namely, as we infer, CA's teacher) that, on or about 30 November 1998, the teacher observed CA in class with her hand up a boy's pants playing with the boy's penis. Consequently, we consider those representations to be admissible. - Disputed representation about the mother's opinion of his son's disorder; CB's mother is not an expert in psychiatric disorders, she was not qualified to express an opinion as to whether CB was suffering from multiple personality disorder. The opinion might be admissible under s 78 if it were properly to be regarded as based on what CB's mother saw, heard or otherwise perceived of CB's mental state and evidence of her opinion were necessary to obtain an adequate account of her perception of CB's mental state; in other words, in this context, if it were necessary to obtain an adequate account of what CB's mother saw heard or otherwise perceived of CB's symptomology. As it stands, however, it does not appear to us that Dr Gibbs treats the opinion in that fashion. As we read his report, he adopts CB's mother's description of CB's suffering from multiple personality as if it were a competent clinical diagnosis of multiple personality disorder; and, on that basis, he then goes on in the report to expatiate on the forensic significance of the possibility that CB was suffering from that disorder. If that is so, the representation of opinion would not be admissible under s 69(2).

Landford v Tasmania

Facts: Landford was found guilty of unlawful setting fire to property. It was alleged that the appellant, a taxi driver, had set fire owned by another driver in the early hour of the morning of 23 Feb 2016. Important pieces of circumstantial evidence were CCTV footage which showed that the appellant walking away from the vehicle are the time that the fire commenced, and the opinion of the fire investigator that the fire had started on the external surface of the car, in particular the rear bumper bar. This opinion, if accepted, excluded the possibly that the fire may have commenced accidentally as a result of a malfunction of equipment within the vehicle, for example, the battery of electrical circuitry. The appellant appealed on the admissibility of the fire investigator's evidence, for the source of fire is a assumed fact. Held: The only reasonable view of Mr Catterall's evidence is that he was expressing his own opinion based on his specialised knowledge and, in forming his opinion, had regard to a number of facts, the majority of which were either proved by other evidence or attested to by him. The opinion he expressed was not the opinion of the unnamed representative from Toyota. The only effect of that information was to establish the battery as the correct one for the vehicle. It is a reasonable inference that the significance of this fact in the formation of his overall opinion was limited, particularly when considered in the context of the evidence he gave as to his own independent examination, and other factors which supported his opinion. The partial reliance by an expert on information, factual or otherwise, provided by others, will not impact on the admissibility of the opinion, provided that the opinion is based wholly or substantially upon the expert's specialised knowledge. Whether the opinion is substantially based on such knowledge is a question of degree, and requires an evaluative assessment by the court when determining admissibility. It is inevitable that experts will often rely partially on such information when formulating an opinion. In his submissions.

Lee v The Queen

Facts: Lee was convicted of assaulting PJ with intent to rob her. Calin was arrested in the company of Lee a short time later and he told police that he had been asking Lee for $80 he owed him and Lee said "I did a job". However, when Calin stood in the witness box, he denied it. The Crown sought to tender the interview record between Calin and the police. The counsel of Lee raised the objection about admission. Held: In this case, the court decided the s60 did not apply to second-hand hearsay and more remote hearsay. Latter was overruled by s60(2).

May v O'Sullivan

Facts: May was convicted on two charges related to betting at a hotel. If May's evidence had been believed it would have established that he was not present when all but one of the alleged bets had been made, and with regard to that one bet, serious doubt would have been cast on the evidence of the prosecution that the convictions would not have been justifiable. The magistrate did not believe May's evidence and instead accepted without qualification the evidence of the chief prosecution witness. Issue: Whether the prosecution has made out what is called a prima facie case, the burden of proof shifts to the shoulders of the accused person or defendant, with the consequence that, if he fails to displace that prima facie case by denial or explanation, he ought to be convicted. Held: The answer is no. The burden of proving guilt beyond reasonable doubt rests on the prosecution from first to last, and even though the defendant remains silent after a prima facie case has been launched against him, it may very well be that he ought to be acquitted. After the prosecution has adduced evidence sufficient to support proof of the issue (pass the question of law that there is a case to answer), the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is the question of fact.

Melbourne v The Queen

Facts: Melbourne was tried and convicted of murder in the SC of NT. At trial, M did not deny that he had stabbed the deceased, but sought a conviction for manslaughter on the basis of diminished responsibility. A finding of diminished responsibility depended on the credibility of a umber of statements made by M to police and to experts who were later called to give evidence for him. M adduced good character. The trial judge instructed the jury s to the relevance of this character evidence to the improbability of the appellant having committed the offence but made no direction as to the relevance of the good character evidence to the jury's assessment of Melbourne's credibility. While this was too objected to at the time, it was the bass of the appeal against the conviction. Held: The general rule is that a judge is not obliged to direct the jury concerning the accused's good character. The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both: 1) The accused's propensity to commit the crime charged; and 2) The accused's credibility. The judge may then conclude that the good character evidence adduce is of probative significance in relation to 1) only, 2) only, both 1) and 2) or neither 1) nor 2) and can direct or not direct the jury accordingly. Exception: If the evidence of the accused's good character is both probative ad relevant the judge will, almost as a matter of course, direct the jury as to its significance in summing up the defence case. It would be unfair not to do so.

R v Milat

Facts: Milat was charged with the murder of several backpackers, whose bodies were found in the Belanglo State Forest. Both the prosecution and the accused indicated they wished the jury to inspect the ares where seven bodies were found, so the jury could see the remoteness of the area and see where a substantial amount of property and ballistics evidence was found. The jury would also see places on the Hume nHighway before the turn-off into the forest, which were talked about in evidence. The trial judge needed to be satisfied s 53 of the EA was satisfied. The mandatory factors for the judge to order the view includes: 1. S(2)(a) whether the parties will be given a reasonable opportunity to present; 2. S(2)b) whether the judge and the jury will present; Other factors relevant: 1. A pure inspection conducted; 2. Would the inspection be helpful? 3. The penitential danger of the inspection? 4. Whether the site has been materially altered.

R v Skaf

Facts: On 10 July 2003, the day before verdict, the jury went home early. The foreman called one of the other jurors and they decided to visit Gosling Park. They arrived at the part at about 8.15pm and spent about 15-20 minutes at the part. Bilal Skaf argued that the trial miscarried by reason of a juror attending the scene of the alleged crime and informing himself as to the state of the lighting at the scene of the alleged crime. Held: The misconduct of the jurors caused the trial to miscarry. If there had been an experiment in the course of jury deliberations, there would have been a direct contravention of s53(4) of the evidence Act. The evidence of the conduct of the jurors was admissible evidence being extrinsic to the jury's deliberations.

Sio v The Queen

Facts: Mr Sio had driven Mr Filihia to a brothel in Clyde, New South Wales, on 24 October 2012. Mr Filihia entered the brothel alone wielding a knife with the intention of committing armed robbery. An altercation followed between Mr Filihia and an employee of the brothel, Mr Gaudry, which led to Mr Filihia fatally stabbing Mr Gaudry. Mr Filihia subsequently robbed the victim and promptly left the brothel. He ran passed Mr Sio's car and Mr Sio collected him further down the road before the two accelerated away. Mr Sio was charged with the murder and armed robbery of Mr Gaudry. Mr Filihia refused to give evidence at Mr Sio's trial. As a result, the prosecution produced two electronically recorded interviews and two subsequent statements by Mr Filihia in which he named Mr Sio as the driver and identified Mr Sio as the person who had given him the knife. The trial judge ruled that the evidence could be admitted as an exception to the hearsay rule under s65 of the Evidence Act 1995; the exception being where the representation was against the interests of the person who made it and made in circumstances that made it likely that the representation was reliable. Held: It is true to say that, generally speaking, the totality of Mr Filihia's statements were against his own interest , his statement that Mr Sio gave him the knife and put him up to the robbery was, given the circumstances in which that statement was made, plainly apt to minimize his culpability by maximizing that of Mr Sio. While it may be accepted that s65(2)(d)(i) was satisfied in respect of that statement, it did not follow that the circumstances in which it was made were such that the statement was likely to be reliable as evidence against Mr Sio.

Case O'Gara

Facts: Mrs O'Gara slipped and fell down at Payless Superbarn. O'Gara injured her back and sued the supermarket for negligence. She gave evidence that she slipped upon grapes scattered on the floor. She was not cross-examined about the presence of grapes. The defence then called the supermarket manager who gave evidence that there was nothing on the floor. The trial judge directed the jury to disregard the manager's evidence in accordance with the rule of Browne v Dunn. A jury found for O'Gara. The appellant appealed on the basis of the judge's direction to disregard the store manager's evidence that there was nothing on the floor. Held: Although I regard the denial of a party's rights to call admissible and relevant evidence as an extreme step and a consequence which will not normally attend a breach of the rule in Browne, I find it difficult to conclude in this case that the trial judge has been shown to have exercised his discretion erroneously.

Munro v The Queen

Facts: Munro was convicted of an armed robbery and inflicting grievous bodily harm. There was evidence that two offenders waited for a Chubb bus van at a bus shelter. DNA was found on cigarette butts located at the bus shelter that correlated with the DNA of Munro. In 2004, Lawrence Grace was a cleaner who cleaned the relevant area from 2000 to 2005. In February 2010, Mr Grace provided a statement to police. The statement detailed that he did not remember specifically 10 May 2004, but he regularly cleaned the area in a routine system.

R v Ngo

Facts: Ngo, with others, was charged with the murder of Newman. The crown wished to lead evidence from two accomplice witness, TVT and TDN, who had been given indemnities. In particular, the Crown wished to adduce evidence as to when they first went to the authorities, why they did so, and why they did not at the stage disclose all material information. At voir dire it was objected that this was prohibited under s102 of Evidence Act. Held: To adduce credibility evidence under s108(1) does not require leave.

Nikolaidis v The Queen

Facts: Nikolaidis, a partner/solicitor, was convicted for an offence of making a false instrument. One ground of appeal was that the Crown failed to obtain leave pursuant to s108(3) regarding the adducing of complaint evidence by Ms Moffatt (the appellant's secretary) to Ms Middleton (a salaried partner in the appellant's firm). One evidence relevant only to the credibility of Ms Moffatt, is oneway, Ms Moffatt approached to Ms Middleton said she had told to backdate the documents. Held: The only possible import of this cross-examination was a suggestion that Ms Moffatt had fabricated her evidence about the creation of the document. One clear suggestion was that her disaffection for the appellant stemmed from her perception of the way she had been treated by him on leaving the firm — that she believed that she had not been paid her "entitlements". It was suggested that this provided her motive to fabricate evidence against the appellant. In these circumstances, the foundation under s 108(3)(b) for the admission of the evidence was laid.

Urban Transport Authority of NSW v Nweiser

Facts: Nweiser sued his employer for negligence and claimed damages for injuries suffered at work. At the hearing, the plaintiff and defendant had each closed their cases. The employer disputed that the accident occurred. The employer then sought to reopen its case to call two further witnesses who were co-workers. The co-workers' evidence was the Nweiser had told them that he had hurt his back five years earlier, he would simulate an accident and go for compo and he asked them to support him. This application was made on the day after the defendant had closed its case and when the defendant had commenced its final address. The trial judge refused to reopen the case. The respondent would not have been prejudiced in any way by the grant of the application to reopen the case. Although his Honour indicated that the respondent had raised prejudice in opposition to the application it is difficult to discern upon what basis such a claim could have been founded. The evidence concluded when the appellant closed its case and all that occurred between the closing of the case and the application was that the appellant's counsel addressed his honour. In this respect the case is to be distinguished from one in which the plaintiff seeks leave to reopen his case in chief after evidence has been called in reply by the plaintiff. In either of those cases events may have occurred which might render it unjust ot allow the party seeking the indulgence to call further evidence. Here all that occurred was that some time had passed between the closing of the defendant's case and the application by the defendant to call a witness. In these circumstances it is difficult to perceive any reasons which would support the conclusion that the interests of justice favoured the refusal of leave.

Jango v Northern Territory

Facts: Objection was taken to an expert report prepared by an anthropologist, professor Sutton, for an Aboriginal land title claim. It was argued that there was a disconformity between the report and the evidence given by indigenous witness and was therefore irrelevant. Further the NT was concerned about the effect of s60 in respect of the previous presentations contained in the report as s60. Held: Similar holding as Quick v Stoland case.

Qantas Airways v Gama

Facts: On 8 December 2006 the Federal Magistrates Court ordered Qantas Airways to pay Gama, a former employee $71,692.70 damages, including interest, for breach of s9 of the Racial Discrimination Act. The learned magistrate found in Gama's favour that certain racially discriminatory remarks had been directed to him in the course of his employment at Qantas and constituted unlawful conduct under the Racial Discrimination Act. Held: there is no third standard of proof developed in common law. the correct approach to the standard of proof in a civil proceeding in a federal court is that for which s140 of the EA provides. It is an approach which recognises, adopting the language of the Hight Court in Neat Holdings, that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved and I would add, the circumstances in which it is sought to be proved.

Tuite v The Queen

Facts: Only small amounts of DNA matching that of the accused were found on the relevant items inside the house. Then the issue is whether the forensic DNA evidence is admissible under s79. Held: A Person's knowledge may qualify as specialised knowledge for the purposes of s79(1) even if the area of knowledge is novel or the inference drawn from the facts have not been tested, or accepted, by others. The position would have been different if, instead, s79(1) had provided that an opinion was only admissible if shown to be based on a reliable or established body of knowledge. No such language was used, however, in the provision. However, the reliability of expert evidence could adequately be addressed under s137 (or s135).

Palmer v The Queen

Facts: Palmer was convicted of several sexual offences against a 14 year old girl. One of the issues on whcih Palmer appealed related to questions asked in cross-examination. Palmer's counsel had previously suggested to the complainant in cross-examination that she had accused Palmer to pay back on him for not giving her enough attention. Palmer was asked in cross-examination to suggest a motive for the complaint's accusation and he was unable to do this. The court considered the propriety of this line of cross-exmamination. The trial too place prior to the commencement of the EA. Held: 1. Whether evidence is relevant only to credibility, or also to the existence of a fact in issue can be difficult, and although required by the Evidence Act the distinction is artificial. 2. If it were permissible generally to cross-examine an accused to show that he has no knowledge of any fact from which to infer that the complainant has a motive to lie, the cross-examination would focus the jury's attention on irrelevancies, especially when the case is "oath against oath". In such a case, to ask an accused the question: "Why would the complainant lie?" is to invite the jury to accept the complainant's evidence unless some positive answer to that question is given by the accused.

Pate v The Queen

Facts: Pate was convicted of two counts of sexually penetrating a child under 16. Pate was the complaint's uncle. The offences were committed in 1998 when the complainant was aged 10 years (she was born in 1988). The offending took place when the appellant was teaching the complainant to dance. The subject of the appeal was the admissibility was previous representations made by the complainant to her boyfriend about the allegations in late 2009 or early 2010 (12 years after the alleged offending). The appellant argued that the boyfriend's evidence should not been admitted pursuant to s66. Held: The greater the period that has passed, the greater the need for there to be some reason why the event would e fresh in the memory, which is not exit in current case.

ACCC v Air New Zealand Ltd

Facts: Perram J was asked to give rulings on objections taken to documentary tender by the ACCC. Held: The authentication and admissibility of the documents are two separate questions. If it is alleged not be authentic it will still be relevant as long as there is material from which its authenticity may reasonably be inferred. By s58(1), that material expressly includes what may reasonably be inferred from the document itself. The decision in Rusu is correct in common law position, but its interpretation of s58 is plainly wrong.

R v Kneebone

Facts: Prosecutor failed to call a key witness, the complaint's mother, who they believe is unreliable. Held: The prosecutor failed to mother and resulted in a miscarriage of justice.

Ward v The Queen

Facts: RW was convicted of sexual assault committed on J (girl under 16). RW appealed relied on what are said to be inconsistencies between J's evidence in her recorded interview and her answer to question during cross-examination at the hearing. The prosecution submitted that the fact that it was not put to J that she had lied in her interview breach the rule in Browne. Held: The appellant cannot based on the current ground regarding the credibility of the complaint without giving a fair opportunity to the child to make clear whether she or he adheres to the account given in the interview.

Robbins v The Queen

Facts: Robbins was on tried on 12 charges of taking part in an act of sexual penetration of a child under the age of 16 in his care between 2008 and 2011. The complainant was a member of Robbins' extended family. Three juries had to e empanelled and the first two discharged before verdict. Some of the evidence oboe the third jury was presented b replying recordings of evidence which had been led before the second jury. Robbins was convicted of six of the charges. One ground of appeal was that the trial judge erred in failing to warn the jury of the forensic disadvantage experienced by the applicant as a result of the delay of the complaint. Held: - 6 years delay does not make the case a historic sexual offending. - The phrase "significant forensic disadvantage" requires examination of the consequences of the delay for the accused in relation to the particular case. Such disadvantage arises not because of delay itself, but because of the consequences of delay. A hypothetical disadvantage will not be sufficient.

Evans v The Queen

Facts: Security cameras had photographed a armed man wearing overalls, sunglasses and a balaclava robbing persons of money. Similar overalls and a similar balaclava were found at the home of the appellant. Before the jury in court, he was required to wear those overalls and balaclava, as well as a pair of sunglasses similar to those worn by the robber and seen on the video, and say the word sorts, as there was evidence given with the appearance and voice of the robber in the security photographs and descriptions of the robber given by witnesses. Held: The true construction of s53 does not apply to what happens in the court room at the trial.

Evans v The Queen (Relevance)

Facts: Security cameras had photographed a armed man wearing overalls, sunglasses and a balaclava robbing persons of money. Similar overalls and a similar balaclava were found at the home of the appellant. Before the jury in court, he was required to wear those overalls and balaclava, as well as a pair of sunglasses similar to those worn by the robber and seen on the video, and say the word sorts, as there was evidence given with the appearance and voice of the robber in the security photographs and descriptions of the robber given by witnesses. One issue for the HC was whether the evidence was admissible under Ch3. Held: Gummow and Hayne JJ Looking at the appellant wearing the balaclava and overalls (with or without sunglasses) enabled a comparison between no more than the items he put on and what was depicted in the security photographs. But that comparison could be drawn without the appellant being asked to put them on. Dressing the appellant in the items provided no information to the jury that could rationally affect, directly or indirectly, the determination of any fact in issue because it revealed nothing about the wearer and nothing about the appellant that was not already apparent to the jury observing him in the dock. Heydon JJ: For the balaclava and the sunglasses: If attired in the balaclava, the accused had looked very different from the descriptions given by the eyewitnesses, that would have been had looked very different from the descriptions given by the eyewitnesses, that would have been material capable of raising a reasonable doubt. If, so attired, he had looked similar to the descriptions, it would, taken with other evidence, have been material capable of supporting a conclusion of identity. Therefore, s55 test was passed. For the words: For current case, the ratio in Bulejcik v The Queen was adopted that, evidence of the speech idiosyncrasy shared by the accused and the offender was irrelevant unless the jury could compare the accused's voice in court with an out-of-court recording. For waling in overalls: The appearance of the accused walking in overalls in front of the jury was capable of making an impression on the jury which was favorable to the accused as much as it was capable of causing an impression adverse to him. Either way the evidence was relevant. Kirby J: The evidence is relevant for: There was no relevant sound of the offender on the videotape; the words he was asked to utter were not exactly those said by the witness Mrs Gleeson to have been mis-stated by the offender. The video and photographic stills lacked sharpness and clarity. The circumstances of the appellant sitting for 10 minutes in the witness box was unfair. But depending on what evidence the jury accepted, it cannot be said that the evidence was irrelevant to the obvious purposes for which it was proffered by the prosecutor. It was open to the jury to consider that all or some of the evidence was relevant to their decision. However, Kirby J concluded that the evidence should have been excluded under s137 for prejudicial.

Hughes v The Queen

Facts: Sexual assault against multiple victims (charged and uncharged). Held: The evidence as a whole was capable of proving that the appellant was a person with a tendency to engage in sexually predatory conduct with underage girls as and when an opportunity presented itself in order to obtain fleeting gratification, notwithstanding the high risk of detection. - The force of the tendency evidence as significantly probative of the appellant's guilt was not that it gave rise to a likelihood that the appellant, having offend once, was likely to offend again. Rather, its force was that, in the case of this individual accused, the complaint of misconduct on his part should not be rejected as unworthy of belief because it appeared improbable having regard to ordinary human experience.

Shepherd v The Queen

Facts: Shepherd was convicted of conspiring to import heroin. He appealed on the ground that the trial judge erred in failing to direct the jury that, in so far as the prosecution case rested upon circumstantial evidence, they might only infer the applicant's guilt where each fact upon which the inference was based was proved beyond reasonable doubt. Held: The High Court decided that in a case resting upon circumstantial evidence, it is not correct that the jury may only properly draw an inference of guilt upon facts--individual items of evidence--proved beyond reasonable doubt. However, if it is necessary for the jury to reach a conclusion of fact as an indispensable intermediate step in the reasoning process towards an inference of guilt, that conclusion must be established beyond reasonable doubt. Whether there is a need for a trial judge to identify such a conclusion and direct the jury as to that standard of proof will depend on the circumstances of the case.

Smith v The Queen

Facts: Smith was convicted of robbing two bank officers of bank money in the company of others. Bank security cameras showed what had happened. The prosecution's case was that he was the photographs keeping a lookout while his co-offenders took the money. The issue was whether Smith was the person in the photos. Two police officers gave evidence that they knew Smith and recognized him in the photos. The question on appeal was whether that evidence was properly admitted. Held: Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified.

R v Sood

Facts: Sood, a medical practitioner, was being prosecuted for 96 counts of dishonestly obtaining a financial benefit by deception from the Health Insurance Commission. At the trial, the trial judge EXCLUDED evidence from a Health Insurance Commission investigator that during a lawful search of Dr Sood's clinic he found a number of case receipt books and cash receipts in two waste bins in the applicant's clinic. The prosecution sought to rely on this evidence for the purpose of inferring an admission by the applicant that she had placed the documents in the bins and then inferring that she did so because she was conscious of her guilt of Medicare fraud. The trial judge in applying s137, found that the evidence was not strongly probative of the offences charged because the overwhelming inference is that she did so because she was afraid of being prosecuted for tax evasion. Held: The probative value of that evidence was to be assessed merely by an examination of the evidence itself. Moreover, it was no part of the trial judge's function in assessing probative value under s137 to have regard to competing explanations for the respondent's conduct, other than that upon which the Crown relied, even assuming that an alternative explanation was given by the reponsdent on the vior dire. The trial judge exceeded the reach of his function and entered into the jury's domain.

Subramaniam v Public Prosecutor

Facts: The appellant alleged he was captured by security forces operating against terrorists in Johore, Malaya. He was found wearing a belt containing 20 rounds of ammunition. He was tried on a charge of unlawful possession of ammunition. His defence of duress was that he had been captured and forced to carry the ammunition by terrorists and that at the time of his capture by the security forces he had formed the intention to surrender and was on his way to do so. The appellant gave evidence at his trial. He was convicted and sentenced to death. His appeal to Privy Council was on the basis that the trial judge erred in refusing to allow the appellant to give evidence to the oral threats made by his captors on the basis that they were hearsay. Held: The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. Therefore, hearsay rule did not apply, and the appeal allowed.

State Rail Authority of NSW v Brown

Facts: State Rail authority appealed against a decision of the District Court awarding damages to Mr Brown, who suffered injuries when the train in which he was travelling collided with a derailed coal train. The appellants accepted liability before trial and the only issue in dispute was the assessment of damages. The trial judge found that Mr Brown sustained injuries to his neck, shoulder, back and a relatively minor level of psychological injury from the accident. One issue argued in the court of Appeal was whether the trial judge erred in stopping cross-examinnation which State Rail authority submitted could have affected the respondents's credits. Held: Given the way it was put to the judge, I assume relevance only to the respondent's credibility, but even then evidence produced by the line of questioning was admissible if it had substantial probative value. If it could produce evidence of substantial probative value, albeit relating only to credibility, the line of questioning should have been permitted. Evidence produced by the line of questioning could have had the probative value, at its height, of concession by the respondent that he had not suffered damage to his teeth in the accident, but had lied to his solicitors and Drs Millons and Wilcox in order to pass on the problems with his teeth as accident-related and falsely get damages for injury in that respect. For the application of 103(1), deception as to damage to his teeth in the accident would have had substantial probative value on the respondent to injury to the respondent's credibility. The appellants were entitled to seek to impugn the respondent's credibility by the line of questioning, and the judge should have permitted it at least until the respondent's answers showed that substantial probative value would no emerge.

Odisho v The Queen

Facts: The Crown made application of leave under both s38(1) and (3). The second application was rejected by the trial judge. Held: - A separate leave application is needed if the question is only about the credibility of the witness. - However, if a credit attack on the witness relating to fabrications or lies on the occasions related to the facts in issue in the trial and the leave under s38(1) has been granted, no further leave needed to be granted for cross-exam the witness.

Robinson v Woolworths

Facts: The Department of Health procured minors to purchase cigarettes as part of its investigation into the compliance of retailers to the prohibition of the supply of cigarettes to minors. The trial judge found that the evidence of the minors was improper for the purpose of s138. The court of Criminal Appeal determined whether the trial judge had erred in law in finding impropriety in circumstances where thee was no unlawfulness on the part of any law enforcement officer. Held: Key factors lead the judge decided it is not impropriety under s136: 1. The conduct merely provided the opportunity for the commission of the offence, but did not involve the application of any form of pressure, persuasion or manipulation; 2. The girls bought the tobacco does not involve in the offence. Therefore, The desirability of admitting the evidence outweighs the undesirability of admitting evidence.

Crofts v The Queen

Facts: The HC considered the law concerning the instruction to be given to a jury in a trial of an accused for a sexual offence, where the complainant had failed to complain at the earliest reasonable opportunity. Held: In current case, the trial judge go to another extreme that, he addressed to the jury:" the sexual offence victims are often not made immediately after sexual assaults..." The purpose of s294 is not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses.

Braysich v The Queen

Facts: The accused in current case contravened s998 of Corporations Act in WA. The defence he can raise on the evidential burden is he is innocent in mind. The judge decided no evidence has raised for this defence which constitute the miscarriage of justice. Held: the evidence of good character is nought to satisfy the evidential burden.

R v SWC

Facts: The accused stranded up gave varies points which never put in the complainant. Trial judge gave direction regarding the breach of the rule in Browne v Dunn to jury, and pointed about the possible credibility issue about the accused. Held: It is impropriate t invite jury blame the credibility issue of the accused.

R v McLaughlan

Facts: The accused was charged with causing damage to a house by voluntarily setting fire to it. When police attended the burning house, the accused was present and made some admissions. The issue was whether they were admissible. Held: It is clear that a psychiatric illness is not itself sufficient to prove the unlikelihood of the reliability of an admission: R v Starecki [1960] VR 141 at 151-152. Similarly, the fact that a person being questioned is depressed is not, by itself, sufficient to show that the reliability of admission made are adversely affected: R v Truong (1996) 86 A Crim R 188 at 193. However, in current case, seems to be that the personal and psychological vulnerabilities of the accused such as described by Mr Bliesner (see below) are relevant to the issue of whether it is unlikely that the truth of the admission was adversely affected. Factor 1: Constable Healey noted that he "could smell an intoxicating substance on [the accused's] breath". On previous occasions police had found her drunk. Factor 2: "The female was non responsive, scrambled and I could not keep her in one spot as she was continually moving about. I attempted to speak with the female, but was unable to get any sense out of her." Given this statement, to which my attention was not specifically drawn, together with the other circumstances, I consider that the question of whether the circumstances, including the accused's mental and intellectual disability (s 85(3)(a)), were such as to make it unlikely that the truth of the admission was adversely affected must be decided in favour of exclusion and I so rule.

SH v Queen

Facts: The accused was convicted for sexual assault of a girl aged under 10. The main witness for the prosecution was the complainant. She gave unsworn evidence. The accused appealed on the basis that the judge failed to five a necessary instruction to the complaint, so that her evidence was inadmissible and she was not competent. Held: What was missing from the final question in relation to suggestions was the exhortation not merely to say that a statement believed to be untrue is wrong, but that the witness should feel no pressure to agree with such a statement. In my opinion, that omission was a failure to comply strictly with the term of sub-s(5). consequently, the complainant was not competent to give unsworn evidence because, it having been concluded that she did not have sufficient capacity to understand the obligation to tell the truth, she was not given the directions required by s13(5) in full. Accordingly, the conviction should be set aside.

Braysich v The Queen

Facts: The appellant was a stockbroker who was convicted of 25 counts of creating a false of misleading appearance of active trading in securities on the stock market in contravention os ss998 (1) and s1311(1) of the Corporation Acts 2001. At the trial, the appellant wished to rely on a statutory defence under s998(6) which was that the purpose or purposes for which he caused the sales to take place did not include the purpose of creating a false or misleading appearance of active trading. Six character witnesses were called on behalf of the accused. They all deposed to his honesty. The trial judge withdrew the statutory defence from the jury. Held The statutory defence in s998(6) raise an issue of honesty. The purpose of creating a false of misleading appearance of active trading is a dishonest purpose. Evidence of the appellant's honesty character was capable of supporting a submission that it was improbable that he acted with that dishonest purpose, but not to establish the honesty defence.

Azzopardi v The Queen

Facts: The appellant was charged with soliciting Papalia to murder Gauci. At the Appellant's trial, Papalia gave evidence that he had shot Gauci with intent to murder him. He gave evidence that he shot Gauci at the request of the appellant. Evidence was also called from Knibbs and Madigan which, if accepted, supported Papalia's evidence that the appellant had given him the gun which he used to shot Gauci. The Appellant did not give evidence at his trial. Held: If an accused does not give evidence a trial it will almost always be desirable for the judge to warn the jury that the accused's silence in court is not evidence against the accused, does not constitute an admission by the accused, may not be used to fill gaps in the evidence tendered by the prosecution, and may not be used as a make weight in assessing whether the prosecution has proved its case beyond reasonable doubt. It by no means follows, however, that the judge should go on to comment on the way in which the jury might use the fact that the accused did not give evidence.

Stanoevski v The Queen

Facts: The appellant was convicted in the District Court of NSW of conspiring with two other persons to cheat and defraud NRMA Insurance Limited of a sum of money. The appellant was a practising solicitor. She put herself forward as a person of good character. The prosecution asserted that the appellant was not a person of good character and, to prove that that was so, was permitted by the trial judge to cross-examine her on matters contained in a report prepared by a Law society investigator. The report was of an investigation of an allegation made by Ms Wailes that the appellant had forged the signatures of a client which she had them witnessed.

R v Stewart

Facts: The appellant was convicted of a charge of aggravated break, enter and steal from a dwelling house. The Crown was that the appellant had committed the crime with a co-offender, Braddick, B pleaded guilty and gave an undertaking to give evidence against the appellant and as a result his sentence was reduced. Held: The fact that there is evidence in the trial that the witness has actually received a benefit for giving evidence against the accused diminishes the necessity for the judge to bring that matter to the attention of the jury and to warn them of its possible affect on the reliability of the witness. A warning is required where the jury might not be able to ascertain that there is any benefit to be gained by the witness in giving evidence. There is, in such a case, a danger that the jury may give the evidence significant weight simply because they cannot perceive a motive for the witness to fabricate evidence implicating the accused in the offence before them.

R v Esposito

Facts: The appellant was convicted of murder. She appealed on a murder of grounds, including that the trial judge had unduly intervened in the hearing, resulting in a mistrial. Specifically, the trial judge had asked Miss Esposito a long series of questions which amounted to in effect, cross-examination, and went beyond clarifying issues but raised new issues. Held: There is nothing wrong with questions designed to clear up answers that my be equivocal or uncertain. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of that ice will depend upon the identity of the witness being examined, and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties. In current case, there is no question other than that the trial judge was endeavouring to see justice to the community done in the case, it was not, in my view, appropriate for him to have undertaken this line of examination. The matter should have been left to the Crown Prosecutor particularly after the concerns of defence counsel had been expressly ventilated. By doing so, his honour has been seen to have sided with the prosecution, and to have lost the appearance of impartiality which was expected.

Aytugrul v The Queen (Judicial Notice)

Facts: The appellant was convicted of murder. While establish the DNA evidence to jury, both frequency ratio (1:1600) and exclusion percentage (99.9%) are used. The accused counsel argued that evidence expressing the results of DNA analysis as an exclusion percentage would in every case be inadmissible because its probative value is always outweighed by the danger of unfair prejudice to the defendant. Held: The knowledge in dispute is whether some forms of expressing DNA statistics carry greater persuasive potential than others. In NSW, no room for the operation of common law judicial notice, only s144 is enlivened. In this case, knowledge of the proportion in question could not be said to be not reasonably open to question and common knowledge or capable of verification by reference to a document the authority of which cannot reasonably be questioned. And the party failed to attempt any proof under s144(4) also.

DPP v Marijancevic

Facts: The deponent to certain affidavits in support of the warrants had not sworn as to the truth and accuracy of their content but rather, had merely signed them in the presence of an inspector authored to take affidavits. The trial judge, in a ruling that is not in issue. The respondents objected to the admissibility to the evidence derived from the warrants. The prosecutor applied to have the evidence admitted pursuant to s138 of the EA. Held: Once it is accepted that it was open to his Honour to find that the officer's conduct was deliberate in the sense that it was knowingly illegal, it follows that the applicant is unable to discharge the burden of establishing that it was not open to the trial judge to conclude that the desirability of excluding the evidence outweighed the desirability of admitting it. The decision was reasonably open because of the finding that the conduct was deliberate, meaning knowingly illegal, and that the gravity of the impropriety was of a high order.

Velevski v The Queen

Facts: The appellant was convicted of murdering his wife and three children. The appeal focused on the conflicting expert evidence from forensic pathologists on the prosecution case of murder/murder and the defence case of murder/suicide that was admitted in the trial. Dr. Bradhurst, called by the Crown, was the forensic pathologist who attended the crime scene and viewed the bodies. Dr. B and a defence witness, Dr. Z, opined that it was murder/suicide. Each of the four other pathologists called by the Crown was of the contrary view. Held: Glesson CJ and Hayne J: What is required in the adversarial system is the the prosecutor is bound to ensure that the prosecution case is pretended with fairness to the accused. Fairness does not require some head count of experts holding differing opinions. Gummow and Callinan JJ: Senior counsel for the appellant at the trial addressed the jury on the basis that the failure by the Crown to call the pathologists who had expressed agreement with Dr B was improper and unfair. Here, their honours ruled that the direction given by the trial judge has operated to cure disadvantage the the appellant. Gaudron J ( in dissenting) General Rule: All witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining form calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point. Of course, a failure by the prosecution to call witnesses is not a defect which will result in a new trial unless it is established that that failure resulted in a miscarriage of justice, in the sense of depriving the accused of a chance of acquittal that was fairly open. In current case, jury could only found the appellant guilty by rejecting the evidence of Dr. B and Z. Their evidence might well not have been rejected on any of those bases if those persons who agreed with the opinion of Dr B had been called as witness in the trial. Accordingly, in my view, the failure of the prosecution to obtain statements and call them as witnesses resulted in a miscarriage of justice.

Weissensteiner v The Queen

Facts: The appellant was convicted of the murder of Hartwig Bayerl and Susan Zack and of the theft of a vessel, the "Immanuel", which had been owned by Bayerl. At the trial, the appellant did not give evidence nor call any evidence. The trial judge directed the jury that the onus of proof was on the prosecution and that they could not infer the appellant's guilt simply from his failure to give evidence; however, an inference of guilt could more safely be drawn from proven facts relied on by the prosecution when an accused person elects not to give evidence of relevant facts which it can easily be perceived must be within his knowledge. Held: In current case silence of the accused/failure to offer evidence of any hypothesis or explanation is inconsistent with innocent. Therefore, in current case, the jury can be invited to take into account the failure of the accused since the failure is clearly capable of assisting them in the evaluation of the evidence before them.

Ratten v The Queen

Facts: The appellant was convicted of the murder of his wife by shooting her with a shotgun. His defence was that the gun had discharged accidentally whilst he was cleaning it. To rebut that defence the prosecution called evidence from a telephone operator who stated that shortly before the time of the shooting she had received a call from the address where the deceased lived with her husband. The witness said that the call was from a female who, in a voice sobbing and becoming hysterical, said "Get me the police, please -" and gave the address 59, Mitchell Street, but before she could make the connection to the police station the caller hung up. The defendant objected to that evidence on the ground that it was hearsay and did not come within any of the recognised exceptions to the rule against admission of hearsay evidence. The objection was over-ruled and the evidence admitted. The defendant's application to the Supreme Court of Victoria for leave to appeal against conviction was dismissed. Held: To admitted the statement, there must be a sufficiently close connection between the words and the happening of the act. it must be regarded as part of the transaction, contemporaneous or causally connected in such a way as to explain the principal act. In current case, the statement is admissible as part of the res gastae.

R v Moffatt

Facts: The appellant was convicted of the offence of murder, following trial by trial judge alone. Both he and the deceased had consumed significant quantities of alcohol before becoming engaged in an argument in the course of which the appellant struck the deceased with a hammer and strangled him. The appellant appealed against the conviction on the ground that the oral admissions alleged to have been made by him and admissions contained in his ERISP should not have been admitted into evidence. Held: I can see no error in the approach taken by his Honour in relation to this evidence, or to the assessment that, although the blood alcohol level of the appellant was high, his tolerance was such as to minimise its effects. The expert evidence in fact was all one way in this regard, and was supplemented by the absence of any clear indication of underlying brain damage. Moreover, the circumstance that the appellant had his wits sufficiently about him to try the pulse and breathing of the deceased to see if he was still alive, was a powerful indication that he was not significantly affected by alcohol, and that his cognitive powers were unimpaired.

R v Flood

Facts: The appellant was convicted of the sexual assault of a woman who, following a car accident in July 1973, suffered brain damage and was left with a serious physical disability. The appeal was on the basis that a warning based on s165(1)(c) should have been given in relation to the complaint's evidence at the trial on the basis that her evidence might have been unreliable because of her disability. Held: The scheme of s165(1) is to apply a test of possibility i.e. "may be unreliable" to evidence. For present purposes the relevant paragraph is (c) which plainly turns on an issue of possibility, namely that the evidence "may be affected by ... ill health ... injury", relevantly mental ill health or injury. A fact finding exercise on the part of the trial judge was required as to whether or not the reliability of the complainant's evidence in the instant case "may be affected" by a mental condition.

Kamleh v The Queen

Facts: The appellant was convicted of two counts of murder before a judge sitting without a jury. A co-offender, Natale Zappie, was tried separately, and convicted of two offences of manslaughter. Neither the appellant nor Zappia gave evidence at the trial of the appellant. The issue in the appeal to the High Court concerned the admissibility at the trial of evidence of certain statements made out of court by Zappia. The appeal was form the Supreme Court of South Australia. Held: There are three pieces of evidence were alleged to be hearsay: 1. Conversation between the accused and co-offender heard by Mr.S: "Zappia told him that he and the accused were planning to catch up with Mr.R" s66A exception of hearsay for state of mind. 2. Mr.S was told Zappia had turned up the television's volume. Such evidence did not offend against hearsay rule. The evidence was not tendered or used to prove the truth of what Zappia said to Mr S. It was not tender to prove that the television set had been turned up. Rather, the fact that Zappia said what he did about the television set was relevant because it disclosed a state of knowledge on his part which had a tendency to prove that he was in unit 22 t the time of the killings. 3. The record of the interview. he prosecution tendered the record of interview, not to establish the truth of what Zappia said, but for the purpose of showing that he and the appellant had concocted an alibi that was shown by other evidence, and in particular by the evidence of witnesses who had been at the Q club, to be false.

Longman v The Queen

Facts: The appellant was convicted of two counts of sexual assault which were alleged to have commenced when the complainant as asleep. The complainant was aged 32 at the time of trial, but was six ears old at the time of the first count and 10 years old at time of the second count. She was the accused's stepdaughter. The complainant testified that on each occasion she pretended to remain asleep. She stated that after the incident in the applicant's bed she went back to sleep (count 2). She could not remember whether she went back to sleep after the incident in the truck (count 1). The complainant did not allege that penetration occurred or was attempted. Both offences were alleged to have occurred more than 20 years before the trial . Held: All five judges set aside the decision. Brennan, Dawson and Toohey JJ: There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. McHugh J: No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely.

Dodds v The Queen

Facts: The appellant was tried and convicted of a charge that he conspired to commit an armed robbery. The Crown case relied on the record of multiple intercepted telephone conversations to prove that the appellant planned to rob a bank. Some of the telephone conversations were spoken in code identified as Pig Latin. A police officer, Murray, gave evidence and translated the intercepted conversations. Held: The statement written by the police officer was not made at the time that the interception was effected, it was made when the officer reviewed that material for the purpose of giving evidence at the trial. Accordingly, in the relevant sense, the statement was in relation to matters which were contemporaneous to its making. in these circumstances, the statement can pass the requirement of s33(2).

Wade v The Queen

Facts: The applicant was found guilty at a special hearing of one office or armed robbery and one offence of attempted armed robbery. He appealed his conviction, one ground being that the evidence of CCTV footage ought not to have been admitted into evidence. Held: The CCTV footage of the commission of an offence is a document because it is a medium from which images of the offence can be reproduced with aid of an appropriate playback machine.

Maluka & Maluka

Facts: The case concerned an appeal against parenting orders by the father, the father contended that his honour erred in relation to his assessment of the gravity of the risk of family violence if there was any time between the children and the father. The father appealed in number of grounds including that the trial judge denied the father procedural fairness by taking into account published social science material and failing to disclose what part of the material. Held: His honour's remarks, reveal that he treated this social science material as common knowledge. In order to be common knowledge, the social science material needed to comprise material that is not reasonably open to question (s144(1). It will be recalled his honour relied upon a number of articles, which together traverse many matters. Nowhere in his honour's reasons did he disclose the matters of common knowledge which he took material, nor did he identify beforehand the manner in which he proposed to use the material beyond categorisation.

MWJ v The Queen

Facts: The child complainant gave evidence in the trial and the child's mother also gave evidence. The accused counsel argue that there was contradiction between the evidence given by the complainant and the mother. Without cross-examination, the accused counsel tried to rely on the inconsistence to argue the Crown hasn't proved the case beyond reasonable doubt. Held: As for any obligation on the defence to put the defence case to prosecution witnesses, the fact that there is not general obligation on a defendant in criminal proceeding to advance a defence case raises the issue of whether there is any obligation on a defendant to put his case to prosecution witnesses. However, it appears clear that if a positive case is in fact called by the defence, and evidence adduced inconsistent with the evidence of a prosecution witness, the rule may be regarded as thereby breached.

R v Birks

Facts: The defence counsel was inexperienced and failed to cross-exam the complainant. Then there is an argument from the Crown that the failure to cross-examination is a prove for the accused was lying and had recently invented the matters he presented. Then the trial judge gave jury the direction that they could draw an adverse inference from the failure of defence counsel to cross-examine the complainant. Held: The appeal court held there is a miscarriage of justice. "It is legitimate, of course to draw appropriate conclusions from counsels failure to put in cross-examination some matter to which his client to his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the mission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may no have been fully misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some references to the sort of factors which I have mentioned."

Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd

Facts: This was an interlocutory application for directions and orders in respect of proceedings in which Clarke Equipment Credit sought an accounting in respect of moneys advanced by it to Como under a joint venture agreement. In the course of resolving issues, Powell J discussed the question of whether a judge can call a witness in a vicil trial. Held: in civil cases a judge may not call a witness without the consent of both parties.

Dyers v The Queen

Facts: The issue in the trial is, if the jury concluded that any of witness was one whom the jury would expect one of the parties to have called to support what was asserted by that party, and secondly, that there was no satisfactory explanation for the failure of that party to call the person to give evidence, then "you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness." Held: In general rule, the Jones v Dunkel rule does not apply in criminal trial. - The Jones v Dunkel rules aimed at the prosecution should not be given if the witness failed to called is not material and necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. Also, based on Apostilides, only if the trial judge had made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seems that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. - The Jones v Dunkel rules aimed at the accused should never be given, unless the situation in Weissensteiner happened. (The rule in Azzopardi cannot be confined to the accused giving evidence personally)

Konstantinidis

Facts: The plaintiff sued the operator of the radio station Voice of Greece for defamation arising from two overlapping broadcasts in Greek on 28 August 1996. A jury was empanelled to try the issues of defamatory meaning under s7A(3) of the Defamation Act 1974. The trial judge, over objection from counsel for defendant, admitted transcripts of translations of the two broadcasts. The jury found that a particular imputation was conveyed by the longer broadcast but not by the shorter. The defendant sought leave to appeal contending that the transcripts were not admissible and the jury;s verdicts in relation to the particular imputation were inconsistent. The CA dismissed the appeal. Held: Even if the broadcast had been in English it would have been difficult for the jury to decide whether the first two broadcasts conveyed so many imputations, each differing slightly from the others, without the benefit of the transcripts. However, if the broadcast had been in English, they Jury would at least have been able to replay the tapes in the jury room as often as they wished. The trial judge was bound to direct the jury that they had to decide whether the imputations were conveyed to the ordinary reasonable listener who heard each broadcast only once. They were therefore bound to use the transcripts only for the purpose of placing themselves, in thought, in the position of such a listener. They were not entitled to answer the questions before them by deciding whether the imputations were conveyed by the written words.

Ordukaya v Hicks

Facts: The plaintiff unsuccessfully sued a 92-year-old defendant for negligence in respect of a paving step.The defendant was unable to attend to give evidence and be crossed-examination. The plaintiff was unsuccessful in excluding the evidence under s135 on the basis that the plaintiff was denied the opportunity to cross-examine the 92 year old woman. Held: The appeal was dismissed. In determining what weight should be given to its contents, the trial judge had to bear in mind, as he did, that the defendant had not been cross-examined. The admission of a document of probative value against a party involves prejudice to that party. However, it is not prejudice, but unfair prejudice, which must be weighed against the probative value of the representation.

Jones v Dunkel

Facts: The plaintiff, Jones, brought an action under the Compensation to Relatives Act for the negligence causing the death of her husband. The case was heard by a judge sitting with a jury. The plaintiff alleged that there was a collision with a truck driven in the opposite direction. During the trial the truck drive didn't show up to give evidence. Held: The judge's direction to the jury is incomplete. The judge should direct the jury that where the failure to give evidence could be used to assisted the jury in deciding which o the inferences open to them they should draw.

R v GM

Facts: The respondent was convicted following a trial in the Supreme Court of the Australian Capital Territory of the commission of an act of indecency in the presence of R, his daughter, R being a person under the age of 10 years[1]. The offence is alleged to have occurred between 29 March 2012 and 2 April 2012. R was five years old at the time. In the trial, the complainant gave unsworn evidence. Held: 1. The jury did not see R take an oath or make an affirmation before giving her evidence. It strains credulity to suggest that in order to avoid the risk of a miscarriage of justice it was necessary to instruct the jury that R's evidence had been received without the solemnity of an oath or affirmation or the possibility of sanction should it be intentionally false. It might be thought unlikely that it would occur to jurors to think a six-year-old child was at risk of prosecution for perjury regardless of whether the child's evidence was taken on oath or otherwise. The Evidence Act does not treat unsworn evidence as of a kind that may be unreliable. Had a direction been requested under s 165(2), there was no requirement to warn the jury that R's evidence may be unreliable because it was unsworn. Nor was there a requirement under the common law to warn the jury of the need for caution in accepting R's evidence and in assessing the weight to be given to it because it was unsworn. Nor was there a requirement under common law, falling short of a warning of that kind, to direct the jury to take into account the differences between sworn and unsworn evidence in assessing the reliability of R's evidence. It is possible that different considerations would apply where a witness other than a young child is capable of giving evidence about a fact but incapable of giving sworn evidence because the witness does not have the capacity to understand that, in giving evidence about the fact, he or she would be under an obligation to give truthful evidence. Depending on the circumstances, it might prove necessary or desirable to give some further form of direction. But, for the present, that need not be decided.

Khamis v The Queen

Facts: The sexual offence was actually just cuddle. Before the jury, the accused gave evidence about words alleged said to the complainant by her brother: "You have to say you have sex with him, otherwise, I will kill both of you." However, the defence counsel didn't put this into the complainant in the cross-examination. The trial judge then directed jury to ignore this evidence. Held: The trial judge is erred by excluding the evidence which breach the rule in Browne v Dunn without considered other possible remedies like s46 or giving proper direction to the jury. Excluding the evidence in favour of the accused should be the last resort in the criminal proceeding.

IMM v R (Tendency Evidence)

Facts: The tendency evidence was given by the complainant and was that while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant's leg. The trial judge (Blokland J) considered that the evidence was capable of showing that the appellant had a sexual interest in the complainant, and that there was a strong temporal nexus between this incident and the charged acts1. Held: It may be accepted for present purposes that the evidence was relevant as it was capable of showing that the appellant had a sexual interest in the complainant, as the trial judge ruled. This is not put in issue by the appellant. But s 97(1)(b) requires more. It requires that the evidence have significant probative value. In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value. Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her. For these reasons the tendency evidence given by the complainant did not qualify as having significant probative value and was not admissible under s 97(1)(b).

McKell v The Queen

Facts: The trial judge commenced his summing-up with the conventional direction that "[i]f I happen to express any views upon questions of fact you must ignore those views". His Honour referred to his "entitle[ment] to express a view" but noted that he did not propose to try to persuade the jury one way or the other. The trial judge went on to make a number of statements that the appellant contends were distinctly apt to do just that. General principle: A trial judge must sum up for the jury the case presented by each of the prosecution and the accused after each side has addressed the jury. The requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury Key test: The issue is whether the trial judge's comments were apt to create a "danger" or a substantial risk that the jury might actually be persuaded of the appellant's guilt by comments in favour of the prosecution case made with the authority of the judge. The essential task of the judge is to ensure a fair trial.

Tootle v The Queen

Facts: The trial judge gave direction to the juries that advised them were entitled to formulate questions to be asked of witnesses, or otherwise encourage they could do that. Held: it was a procedural error for her Honour the trial judge to have told the jury "you are entitled to ask questions of the witnesses". The procedural error commenced to cause a miscarriage of justice when her Honour encouraged the jury to formulate their own questions in exercise of their supposed entitlement and when that encouragement was acted upon by the jury.

DPP v Garrett

Facts: The trial judge rejected Crown's application under s38 regarding its police officer witness. Held: - The trial judge is erred in ask the question that whether the witness is an unfavourable witness. The true test is to ask whether the character of the evidence which the witness give is unfavourable. - The meaning of unfabourable in s38(1) does not mean adverse. It means not favourable. - The evidence of a witness called by a party will not cease to be unfavourable simply because there is other evidence inconsistent with the party's case.

Petty and Maiden v The Queen

Facts: The two applicants, P and M, were convicted of the murder of a man W. When questioned by the police, M blamed P. At committal hearing, witness C testified that M told him M and P planned to kill W. At trial, M and P both claimed the death is a accident. In the committal hearing, M did not raise defense against W. Held: Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused. What makes the present case different is the fact that Maiden's conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious. The re-examination was admissible once the suggestion was made by the defence that Maiden had abandoned his assertion that Petty had murdered the deceased in a conversation with a Crown witness before the commencement of the committal proceedings.

R v Swaffiled

Facts: These appeals were heard together and concern the admissibility of evidence obtained by means of a conversation recorded without the knowledge of both defendants. Held: For Swaffield: In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield's right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed. For Pavic: "Whilst the role of the accused in the killing was volunteered by him to Clancy in a somewhat limited fashion, it cannot, in my view, be said to be the result of, or inextricably linked to, the expressed fear of Clancy that he may be charged with an offence." In all the circumstances there is no sufficient reason to interfere with the trial judge's refusal to exclude the evidence of the conversation. This appeal should also be dismissed.

McPhillamy v The Queen

Facts: This appeal is concerned with the admissibility of the evidence of "B" and "C" of the appellant's acts of sexual misconduct with them, as tendency evidence, on his trial for sexual offences against "A". Held: Proof of the appellant's sexual interest in young teenage boys may meet the basal test of relevance, but it is not capable of meeting the requirement of significant probative value for admission as tendency evidence. The evidence demonstrating that tendency was confined to "B"'s and "C"'s evidence of events that occurred in 1985. As Meagher JA noted, there was no evidence that the asserted tendency had manifested itself in the decade prior to the commission of the alleged offending against "A". It may be accepted that the evidence that the appellant had acted on his sexual interest in young teenage boys on the occasions with "B" and "C" is relevant to proof that he committed the offences alleged by "A", but it is not admissible as tendency evidence unless it is capable of significantly bearing on proof of that fact. In the absence of evidence that the appellant had acted on his sexual interest in young teenage boys under his supervision in the decade following the incidents at the College, the inference that at the dates of the offences he possessed the tendency is weak.

Libke v The Queen

Facts: This appeal to the HC was brought on the basis of inappropriate cross-examination and comments made by the prosecutor. "I put it to you your evidence is just a tissue of lies" "Look, I've heard all of that. I'm trying to convey to you I'm not buying it"." Held: Heydon J concluded several types of improper questions: 1. Offensive question; 2. Question not a question at all (comments) 3. Compound questions 4. Cutting off answers before the witness were completed; 5. Questions resting on controversial assumptions; 6. Questions invite to argue. Two basic principles about cross-examination: 1. The effect of the rules on the value of testimony The quality of justice not improve by the improper questions. Witnesses has rights to tell the best of story they can. If they are frightened or angered, the quality of evidence may lower. 2. If the improper questions have been asked in cross-examination, the counsel of the witness should step in and object. Failure to object may open to the risk of unable to claim in the appeal. Role of the judge in Cross-examination: [133] The trial judge occasionally intervened to control the witness's answers, but never control counsel's questions. Based on s42 the court has discretion to disallow the improper questions.

Thomas v NSW

Facts: Thomas was convicted of two serious criminal offences. The convictions were set aside by the Court of Criminal Appeal on the basis of evidence given by one of the investigating police officers to the Royal Commission into NSW police service. The evidence was that the police had verballed the appellant in relation to an interview. Thomas sued the State of NSW for malicious prosecution. The case was dismissed by the primary judge because Thomas had failed to establish the absence of reasonable and probable cause for prosecution. Thomas appealed from the dismissal. NSW contended that a transcript of evidence from the Royal commission was wrongly admitted pursuant to s69. Held: The representation, police officer's assertion that he verbaled the appellant and did so to assist in convicting him for the assault, was obtained in connection with an Australian or oversees proceeding, which falls in s69(3). The presentation in question was plainly obtained by the Crown for the purposes of the activity it was engaged in; and it was plainly obtained in connection with the proceeding in question. The circumstance that the representation was made in the course of the proceedings does not indicate otherwise.

DSJ v The Queen

Facts: Two persons, DSJ and NS, were each charged with 10 counts of insider trading offences under the Corporations Act 2001 (Cth), s 1043A. Each pair of charges particularised one occasion where it was alleged DSJ obtained inside information through his employment and that he procured NS to acquire or dispose of financial products, and that NS used that inside information to acquire those products. Despite the separate charges, the Crown case alleged an overall scheme in which inside information was passed from DSJ to NS to acquire financial products. The Crown sought to lead evidence of each pair of charges as coincidence evidence in relation to each of the other pairs of charges, and gave notice to the accused pursuant to s 98(1)(a) of the Act. The admission of the evidence would allow the Crown to argue that it was improbable that the events relied upon occurred coincidentally, and to also meet a defence of coincidence. The trial judge ruled that the evidence of each pair of charges was admissible pursuant to s 98(1)(b) of the Act. DSJ and NS appealed that decision. Held: In examining coincidence evidence (together with other material already in evidence or to be adduced) in order to determine whether it has "significant probative value" under s 98(1)(b) of the Evidence Act 1995 a trial judge must: (a) ask whether there emerges an alternative explanation inconsistent with guilt which is a real possibility and not a fanciful one. However, in making this examination the trial judge is neither required nor entitled to assess the actual weight of any part of the evidence or make any actual assessment concerning the probabilities of any alternative theory. (b) then ask, provided he or she has already concluded the coincidence evidence has a significant capacity to establish the fact or facts in issue, whether that possible alternative explanation substantially alters that view, again without attempting to anticipate the actual weight the jury would attach to the evidence. In current case, the judge erred of rejecting altogether the need to recognise, in the evaluation process, the existence of alternative inferences inconsistent with guilt arising from the Crown evidence.

R v Falzon

Facts: Where an accused is found in possession of a prohibited drug and is charged with its possession with intent to sell. Held: Evidence that an accused who is found in possession of a prohibited drug is also found in possession of the accoutrements of a drug trafficking business, such as scales, re-sealable plastic bags, firearms, a multiplicity of mobile telephones or significant quantities of cash, is admissible in proof of the charge. As Gleeson CJ explained in Sultana, it is circumstantial evidence which, in conjunction with the fact of possession and, possibly, other evidence, may found an inference that the accused was engaged in the business of selling drugs. And that is so notwithstanding that such evidence may also be indicative of a tendency towards crime. Here, the evidence was relevant to establish the element of intent to sell and to counter the respondent's claim that the cannabis was possessed for personal consumption. And, as has been noticed, the fact that such evidence is admissible in relation to the proof of drug trafficking offences despite disclosing previous offences is plainly established by the authorities McGhee, Sultana, Blackwell, Edwards and Evans. As those decisions make clear, subject to exclusion under s 137 of the Evidence Act or in exercise of the Christie52 discretion in those jurisdictions where common law rules of evidence still apply, where an accused is charged with possession of a prohibited drug with intent to sell, circumstantial evidence that the accused was at that time carrying on a business of drug trafficking is relevant and admissible to establish the purpose for which the accused possessed the drug in issue.

R v Whitmore

Facts: Whitmore was convicted on one charge of indecent assault and one charge of sexual assault of a child. The alleged offences occurred at Christmas 1992 and the child made an initial complaint to her aunt in December 1995. The case against Whitmore relied entirely upon the evidence of the complaint. The trial judge ruled that the complaint evidence was admissible albeit requiring direction as to specific prior opportunity to complain No reference was made to ss60, 66 or 108. Held: Mere denial of the alleged acts, does not necessarily suggest, expressly or explicitly, positively, reconstruction, fabrication or suggestion. Even if it did, on the issue of whether leave would be granted, the restraint from attacking credibility by going no further would be a most material matter mitigating against the rant of leave.

Williams v The Queen

Facts: Williams was convicted of robbing a bank with a sawn-off rifle on 21 November 1996 and attempting to pervert the course of justice. The Crown case was that Williams buried the rifle in the backyard of his acquaintance, Mr Steward. Mr Stewart had participated in a taped interview with police on 26 November 1996. Before the trial, Mr Stewart died. There was a question of whether Mr Stewart's interview with police was admissible. Held: 1. "short after" In this case, the statements were not made during the events in question, and we think, could not be said to have been made short after. The lapse of five days takes the representations outside the likely temporal realm of statements that may be considered to be reliable because made spontaneously during, or under the proximate pressure of, events. 2. "in circumstance that make it unlikely that it is a fabrication" The representation was made at the time of the interview, where Mr Stewart had been cautioned that he was suspected of having aided and abetted the appellant, and that a sawn-off rifle had been found in his backyard. In response to the submission that these factors made the circumstances such that the interview was far from reliable.

R v Zhang

Facts: Zhang was on trial for two counts of murder. He was interviewed for the purpose of taking a witness statement and ascertaining whether he was suitable for the witness protection program. During the interview Zhang admitted his guilt. Zhang was then interviewed again and the interview was recorded electronically. When the interview was concluded he accompanied police to the crime scene and demonstrated what happens on the occasion of the murders. The police then recorded another interview. Held: In this case, the accused was not merely offered witness protection; he was not merely offered witness protection in return for co-operation (which it is also difficult to construe as oppression); he was offered witness protection in exchange for co-operation in the context of being confronted with two alternatives only: to co-operate with police or be charged with murder. He was offered those alternatives at the same time as being told that he could expect a reduced (or no) sentence in return for his co-operation. There was a threat of some kind, of physical violence (when Detective Goodwin told him he would like to hit his face); and, finally and importantly, he was told that once Detective Goodwin had left the room he would have no further opportunity to co-operate with police. This last was calculated to apply pressure to the accused. I am satisfied that the conduct of the police as whole was designed to and did in fact oppress the accused. On behalf of the Crown it was argued that, even if the conduct of the police was capable of being oppressive, the Crown had nevertheless discharged the onus of establishing that the accused's admissions, or his decision to make admissions, was not influenced thereby. It was pointed out that his breakdown in the police station in July 1997 could be pin pointed in time as following closely upon his giving Detective Breton information on the same subject. It might, therefore, be inferred that, in 1997 when the breakdown of the relationship with the woman was fresher in his mind, it was even more painful, and that it was this vulnerability that broke down his defences and caused him to make the admissions he did. The submission was that the admission was not influenced by any conduct on the part of the police, but rather by his own emotional vulnerability in relation to its subject matter. If oppressive conduct on the part of police is one of those factors (or, more accurately, if the Crown has failed to negative such conduct as one of those factors) then the evidence is inadmissible. For s85 on the other hand, the court did not accept that the pressure put on to the accused operate adversely on the veracity of what he said. Also, no evidence was adduced to suggest that, at the time the accused answered the questions put to him by police, he was psychiatric disturbed. Therefore, the court ruled not to reject the admission on the basis of s85.

R v Zurita

Facts: Zu Rita was convicted of aggravated sexual assault. At trial, before evidence commenced, defence counsel raised the issue of the defendant's character, wishing to adduce evidence of no prior convictions for sexual offences while excluding the ability of the prosecution to consequently adduce evidence of Zurita's prior convictions for theft and assault. The trial judge refused, saying "it seems to me that when it coms to good character it's all or nothing". Zurita appealed his conviction on the basis that character evidence was wrongly excluded.

Doney v The Queen

Facts： Doney was convicted of importing cannabis resin. The prosecution case depended on the evidence of an accomplice, Freeman, whose evidence was flawed, not only because it was evidence given by an accomplice, thus requiring warning, but also because he admitted to telling lies at various stages from the time he was first interviewed by the police. The trial judge had an unfavourable view of Freeman's veracity. Issue: Whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory. Held: it is no doubt that a trial judge's duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict. it may sometimes happen that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed. However the question raised when, for whatever reason the evidence will not sustain a verdict of guilty is distinct from that raised in the present case where the evidence of Freeman, if believed, is itself sufficient to sustain the applicant's conviction. Position in UK (Galbraith) (1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) the difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence: (a) where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.

Lithgow City Council v Jackson (Lay Opinion)

Held: 1. Irrelevant under s55: The appellant's submission as to relevance should be accepted on the basis that the impugned representation was so ambiguous that it could not rationally affect the assessment of the probability of a fall from the vertical head wall. 2. even it is relevant, it did not express an opinion: The ambulance officers' records are so shrouded in obscurity about what data they observed and suggest so great an unlikelihood that that data could support, or were seen as pointing to, any definitive inference that it is not possible to find on the balance of probabilities what the impugned representation was stating. It is therefore not possible positively to find that it stated an opinion. 3. Even it is a opinion, it does not fall into s78 In fact the appellant's submission is correct: the opinion stated a question about the "matter or event" of the fall. It then submitted that since the persons who stated the opinion did not see, hear or otherwise perceive anything about the fall, their "opinion" could not have been based on it, and hence it is outside s 78(a). The appellant submitted that s 78 only applies to opinions given by those who actually witnessed the event about which the opinion is given. That submission, although it was contested by the respondent, is also correct. For s78(b), Evidence about a place in which a person has fallen and about the injuries of that person is not within the category of cases where lay opinion evidence was admissible at common law and is admissible under s 78. The function of the law in relation to that category is to permit reception of an opinion where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated.

LJW v R

Held: In current case, the evidence was probative as evidence of a state of mind which could reasonably be inferred as having a probability of continuing from the time of the incident in the car to the time of the events alleged in coutns 1 and 2.

Construction, Forestry, Mining and Energy Union v Australian Building and Construction Commission

Held: It reinforces an understanding of s 128 as being directed to preserving a witness' common law right to refuse compulsion to give evidence on the ground that it might be self-incriminatory, and providing compensation and protection to the witness for the circumstances in which that right to silence is to be overruled under the provision.

ACCC v Air NZ (s69)

Held: The asserted facts in s69 do extend to lay opinion: " If 'asserted fact' does not extend at least to lay opinion as defined in s 78 then an important, reliable and common form of business record will be inadmissible. For example, a building site log recording that the site is 'slippery due to rain'; a hotel incident report that a patron was 'drunk'; a police pocket note that a person was 'angry' and so on. "

R v Chin

Held: The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. if it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved. The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him.

Col v The Queen

Held: the victim's police statement was 'credibility evidence' as defined in s 101A(b) of the Act because it affected the credibility of the victim and was relevant for an inadmissible purpose, namely a hearsay purpose. The appellant maintained that the statement did not fall within an exception to the hearsay rule. In particular, it did not fall within the exception where the maker of the representations was available to give evidence (s 66), because the representations were made for the purpose of indicating the evidence the person would be able to give: s 66(3). The contents of the statement were admissible pursuant to s 106 as a prior inconsistent statement. The Crown Prosecutor complied with the requirements of s 106(1) and the victim denied the substance of the evidence, that is, whilst agreeing that she had received burns after she had been doused with methylated spirits which was ignited, she denied any knowledge of how that occurred and that the conduct of the appellant was deliberate. Once the contents of the statement were admissible for a non hearsay purpose, the representations constituted evidence of the facts : s 60.

Jacara Pty Ltd v Perpetual Trustees WAS Ltd

Issue: The ultimate issue in current case is whether the agent of defendant, Ms Kelly has made misleading representation to the plaintiff. Held: The correct question the trial judge should ask about whether the test in s97 has applied is: Whether the evidence of the five tenants, individually or collectively, had significant probative value on the fact in issue, that is whether Ms Kelly had made any of the alleged representations to Mr Williams. In current case, the narrative form Ms Kelly gave to other five tenants are all different. IT was well open to the primary judge to conclude that the various accounts differed among themselves and from Mr Williams's version to such an extent that the evidence could not be said to have significant probative value on the facts and issues. The key is to see if the alleged tendency evidence reveals striking similarities or unusual features.

Dupas v The Queen

Issue: Whether the evidence from a facial recognition expert can get in. Held: Distinguish credibility and reliability of a witness: The later being the ability to accurately discern and relay the truth as to an event. Credibility related only to evidence concerning the truthfulness of a witness, and not to reliability. Based on the interpretation of the EA, the credibility of witness under the statute includes the credibility o the evidence of the witness. And the express reference to a person's ability to observe or remember facts and events can only be a reference to reliability. In short, credibility imports notions of both truthfulness and reliability. Thus, prima facie, evidence relevant to the reliability of a witness is not admissible. Therefore, current disputed evidence was caught by Pt 3.7. For the application of s108C: The judge excluded Dr Kemp's specific evidence because he could not express an opinion as to the reliability of the individual identifications. He had not been provided with all of the detail of how those identifications occurred, nor had he interviewed or observed any of the witnesses. As he acknowledged in the case of each witness, he could not express an opinion about the reliability of that witness's identification, nor could he assess the likelihood of the identification being unreliable.

R v Mostyn

Issue: Whether the evidence of the appellant's behaviour on the arrival of police was admissible of a continuing transaction. Held: - The principle of Res Gestae had not been abolished by the statute; - Refer Case Adam that, "The evidence of some event was an integral part of a connected series of events, which included an event in issue, and which could not truly be understood without reference to the evidence then such evidence would be relevant under s55 Evidence Act and would not be tendency evidence.

Hargraves v The Queen

Robinson Rule: The trial judge should not direct a jury to evaluate an accused's evidence on the basis of the accused's interest in the outcome of the case, which had the effect that the evidence of the appellant had to be scrutinized more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. Held: Current case does not breach Robinson Rule: Taken in the context of the whole of the instructions from the trial judge, both the oral directions given about using the possible interest of witnesses in assessing their credibility, and the Powerpoint slides on that subject that were given to the jury, would have been understood by the jury as directed to the evidence of Mr Feddema. It may be accepted that those directions could have been understood as capable of application to the evidence given by the appellants. But the trial judge referred to two kinds of interest: friendship and self-protection. At no point did the trial judge refer to the outcome of the case as a matter in which a witness could have an interest.

R v DRF

Similar fact with Pavic. Held: The question is whether arranging for a complainant to engage in a secretly recorded conversation with an alleged offender involves unfair tactics such as to render the use, in the alleged offender's trial, unfair. In my opinion, that circumstance alone does not. That is so even taking into account the respondent's clear refusal to be interviewed by police. In Em, the person suspected of serious crime repeatedly made abundantly clear that he would not participate in any conversation with investigating police if that conversation was to be audio or video recorded. He did engage in conversations with police in the belief that no recording was made, and he made significant admissions on that assumption. Police obtained a warrant under the Listening Devices Act (the predecessor of the SDA) and recorded further conversations, including admissions. The High Court held that it was not unfair, within the meaning of s 90, to use that evidence in his trial (see [67]-[68], [123]).

Brown v NSW Trustee

Test of satisfy burden of proof in civil proceeding: - The evidence must be enough to enable the court to feel actual persuasion that a particular fact is so; - In civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

R v PL

The principle on which a trial judge should direct a verdict of acquittal: • The question is whether at the time a no case to answer submission is made the accused could lawfully be convicted on the evidence at it stood at that time. • In a case such as the present which depends in the main on circumstantial evidence, a judge cannot direct a verdict of acquittal if there is evidence in support of the Crown case on which the accused could be convicted even though a reasonable hypothesis consistent with innocence can be formulated.

Shamouil v R

When determining probative value, the court should not take into account issues of credibility and reliability.