CASE FILES from: 03 February 2016 to 02 June 2016
- Judgment of
- Bellew J
- Decision date
- 02 June 2016
Catchwords:
CRIMINAL LAW – Jury – Discretionary discharge of juror
- Judgment of
- Bellew J
- Decision date
- 19 May 2016
Catchwords:
CRIMINAL LAW – Evidence – Circumstantial evidence – Whether there existed an essential intermediate fact which was required to be proved by the Crown beyond reasonable doubt – Whether jury should be directed that the Crown case was in the nature of a “links in the chain” case based upon circumstantial evidence – Direction not given
- Judgment of
- Bellew J
- Decision date
- 19 May 2016
Catchwords:
CRIMINAL LAW – Evidence – Where the Crown sought a direction as to use of lies as evidence of consciousness of guilt – Where the determination of whether statements were lies generally depended upon an assessment of the Crown case as a whole – Jury to be directed as to use of lies going to credit but not as evidence of a consciousness of guilt
- Judgment of
- Bellew J
- Decision date
- 16 May 2016
Catchwords:
CRIMINAL LAW – Evidence – Crown case in reply – Whether evidence ought be excluded – Danger of unfair prejudice
- Judgment of
- Bellew J
- Decision date
- 13 May 2016
Catchwords:
CRIMINAL LAW – Evidence – Crown case in reply – Where Crown sought to lead evidence of facts contrary to assertions made by the accused in such evidence – No suggestion Crown splitting its case – Whether evidence should be excluded – Where accused had effectively conceded that the evidence he gave was in incorrect – Where accused asserted he was mistaken – Evidence allowed
- Judgment of
- Bellew J
- Decision date
- 20 April 2016
Catchwords:
CRIMINAL LAW – Evidence – Documentary evidence – Discretionary exclusion
- Judgment of
- Bellew J
- Decision date
- 15 April 2016
Catchwords:
CRIMINAL LAW – Practice and Procedure – Request by jury for transcript of evidence of witness whilst evidence being given – Nature of discretion – Request refused
- Judgment of
- Bellew J
- Decision date
- 15 April 2016
Catchwords:
CRIMINAL LAW – Evidence – Account given by accused of death of deceased – Allegation of threats made by the co-accused at that time – Where terms of threat included a reference to a previous attempted murder of a police officer – Where further evidence of accused of conversation with the co-accused where the co-accused is alleged to have admitted his involvement in previous murders or attempted murders – Where evidence relied upon by accused in respect of duress – Whether probative value of the evidence was substantially outweighed by the danger of unfair prejudice – Evidence excluded
- Judgment of
- Bellew J
- Decision date
- 31 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Where Crown notified accused’s representatives of an intention to lead evidence shortly before the closure of the Crown case – Where evidence had been in the possession of the police for a significant period of time prior to the trial – Where Crown was on notice from the accused’s opening address of the basis upon which the accused’s case would be conducted – Whether the evidence sought to be adduced by the Crown was unfairly prejudicial – Evidence excluded
- Judgment of
- Bellew J
- Decision date
- 31 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Evidence of images on phone and computer of the deceased – Whether evidence should be excluded
- Judgment of
- Bellew J
- Decision date
- 31 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Recorded conversation to which accused a party – Whether conversation privileged – Whether probative value outweighed by the danger of unfair prejudice or the danger of the evidence being misleading or confusing
- Judgment of
- Bellew J
- Decision date
- 21 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Evidence of protected confidence – Application by protected confider that evidence of protected confidence be excluded –Observations as to the proper approach to be adopted upon the making of such an application where the protected confidences sought to be excluded are contained in documents – Where inappropriate to seek exclusion of the entirety of the document – Application granted in respect of those parts of the documents in which there was evidence of a protected confidence
- Judgment of
- Bellew J
- Decision date
- 18 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Expert evidence of “street deal” value of drugs – Where no evidence that either accused intended to sell drug in “street deals”- Whether the probative value of the evidence outweighed by the danger of unfair prejudice – Evidence excluded in part
- Judgment of
- Bellew J
- Decision date
- 17 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Documents produced on subpoena – Claim for public interest immunity
- Judgment of
- Bellew J
- Decision date
- 16 March 2016
Catchwords:
CRIMINAL LAW – Practice and procedure – Jury – Application to discharge jury following non-responsive answer by witness suggesting one of the accused was a “drug dealer” – Test to be applied – Necessity to act on the basis that the jury will follow and apply any direction given by the Trial Judge – Where any prejudice to the accused as a result of the evidence was capable of being dealt with by a direction to the jury – Application to discharge jury refused
- Judgment of
- Bellew J
- Decision date
- 29 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Privilege – Conversation between accused and daughter whilst accused in custody – Where accused asked daughter to convey instructions to his solicitor – Where conversation monitored by authorities – Whether the communication was a confidential communication – Whether the dominant purpose of the conversation was the provision of relevant legal services – Whether any privilege was lost – Whether accused knowingly and voluntarily disclosed the substance of the conversation in light of his knowledge of the fact that the conversation would be monitored and/or recorded WORDS AND PHRASES – “knowingly and voluntarily”
- Judgment of
- Bellew J
- Decision date
- 02 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Admissibility of hearsay statement – Statement made by accused to daughter following his arrest – Where statement relevant to issue of duress – No unfair prejudice to co-accused or Crown – Evidence admitted
- Judgment of
- Bellew J
- Decision date
- 02 March 2016
Catchwords:
CRIMINAL LAW – Practice and Procedure – Suggested impermissible reference by the Crown Prosecutor to a gun when leading evidence from witness – Whether such reference in fact made – Whether jury should be discharged – Application to discharge jury refused
- Judgment of
- Bellew J
- Decision date
- 01 March 2016
Catchwords:
CRIMINAL LAW – Evidence – Where Counsel for accused sought to elicit evidence of a witness’ belief in cross-examination – Objection to the form of the question – Question rejected CRIMINAL LAW – Practice and Procedure – Where objection to question on cross-examination was upheld – Where consequent application to discharge jury – Whether such question of itself was prejudicial – Any prejudice could be cured by direction to jury – Application rejected CRIMINAL LAW – Evidence – Where Counsel for accused sought to cross-examine witness as to credibility on the basis of his criminal history – Whether such history could rationally affect the assessment of the witness’ credibility – Where criminal history more than 20 years old – Evidence incapable of bearing upon assessment of witness’ credit – Application rejected CRIMINAL LAW – Evidence – Where Crown sought leave to cross-examine unfavourable witness – Application granted
- Judgment of
- Bellew J
- Decision date
- 29 February 2016
Catchwords:
CRIMINAL LAW – Practice and Procedure – Member of the jury falling asleep during the evidence – Risk of substantial miscarriage of justice – Juror discharged
- Judgment of
- Bellew J
- Decision date
- 26 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Admissions by accused – Where nature of the admissions equivocal and ambiguous – Limited probative value substantially outweighed by the danger of unfair prejudice – Evidence excluded
- Judgment of
- Bellew J
- Decision date
- 22 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Leading questions – Where counsel for accused sought to put a leading question in cross-examination – Objection to the form of the question – Whether the witness had an interest consistent with interests of the cross-examiner – Whether the witness was sympathetic to the cross-examiner – Question rejected
- Judgment of
- Bellew J
- Decision date
- 22 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Application for leave to allow witness to revive memory in court – Where Crown led evidence to rebut anticipated evidence of good character – Where Crown sought leave for witness to refresh memory from statement provided to police – Whether the statement was made when events were fresh in the memory – Gap of 1 year between events and the making of the statement by the witness - Leave refused WORDS AND PHRASES – “Fresh in the memory”
- Judgment of
- Bellew J
- Decision date
- 22 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Evidence of gunshot residue on clothes worn by accused on the day of the murder of deceased – Whether evidence relevant – Whether evidence unfairly prejudicial
- Judgment of
- Bellew J
- Decision date
- 16 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Where Crown sought extension of orders to include additional location on a view – No opposition by parties – Orders granted – No point of principle
- Judgment of
- Bellew J
- Decision date
- 16 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Previous orders made restricting witness’ evidence at trial – Similar evidence sought to be elicited on cross-examination – Whether the probative value of the evidence was substantially outweighed by the danger that the evidence might be misleading or confusing – Whether witness’ account of conversations with two persons was disjointed and incomplete – Admission by witness that he could only understand part of the conversations – Evidence rejected
- Judgment of
- Bellew J
- Decision date
- 15 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Cross-examination – Cross-examination as to credibility – Where witness sought to be cross-examined about previous drug possession – Whether the evidence could substantially affect the credit of the witness – Cross-examination refused
- Judgment of
- Bellew J
- Decision date
- 15 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Where Crown sought to lead evidence of previous representations of two persons – Whether such persons were “not available” to give evidence - Where neither person could be positively identified - Evidence rejected CRIMINAL LAW – Evidence – Where Crown sought to lead evidence of representations made in the course of a conversation with a witness – Where language in which the conversation was conducted was only partially familiar to the witness – Whether probative value of the evidence outweighed by the danger of unfair prejudice
- Judgment of
- Bellew J
- Decision date
- 09 February 2016
Catchwords:
CRIMINAL LAW – Practice and procedure – Claim by Commissioner of Police for public interest immunity in respect of documents in answer to a subpoena – Necessity to carry out a balancing exercise – claim upheld
- Judgment of
- Bellew J
- Decision date
- 09 February 2016
Catchwords:
CRIMINAL LAW – Evidence – Evidence of a kind which may be unreliable – Where witness pleaded guilty and was sentenced to a term of imprisonment – Where witness offered to assist police and made a statement – Evidence that witness was motivated to assist by the prospect of a reduction in his sentence – Where representations were made to the Governor of NSW for reduction in sentence based on the assistance which was given – Where witness gave evidence in accordance with his statement – Where no decision had been made as to a possible reduction in his sentence as at the date on which he gave evidence – Where counsel for accused sought a direction under s. 165 of Evidence Act 1995 – Opposed by the Crown – Direction given
- Judgment of
- Bellew J
- Decision date
- 03 February 2016
Catchwords:
CRIMINAL LAW – Jury – Where journalist reporting on trial proceedings had a close friendship with a member of the jury – Where journalist had only become aware of the juror’s presence upon attending court on day 2 of the trial – Necessity to ensure right to a fair trial for all parties – Juror discharged.
Additional files
Evidence Act, s 53 — views — R v Rogerson (No 10)
Evidence Act 1995, s 53 — views — conduct of view appropriate and likely to assist jury in understanding evidence the subject of the Crown case — no suggestion of unfair prejudice — importance of appointing a sworn “shower” to conduct the view — duty of trial judge to ensure adequate recording of events at view to enable appellate court to effectively perform its functions if required — R v Rogerson; R v McNamara (No 10) [2015] NSWSC 1067Media — trials — applications made in jury’s absence — R v Rogerson (No 13)
The two accused were charged with murder. Pre-trial applications were heard by the trial judge from April 2015, before the trial’s scheduled commencement date in late July. In early August 2015, an article was published in a Sunday newspaper making the following references to pre-trial applications:
The trial is set to go ahead on August 18 in the New South Wales Supreme Court, but there is an issue with part of the background of one of the accused men.
Lawyers for one of the accused want this information to be put to the jury, but this is being resisted by the other man’s counsel.
Another matter under discussion is whether the two men should be granted separate trials.
