Case Law

Question 1

Orchard v SPOONER

Answer 1

POLICE BEING LED THROUGH STATEMENT IN WITNESS BOX … The Court of Appeal has held that the court has a discretion as to whether a police officer can read or is led through his statement (answer questions with the assistance of it). They suggested the latter would be more appropriate where the police officer was involved directly as a victim.

Question 2

BROWNE v DUNN

Answer 2

I PUT IT TO YOU
When a witness is giving evidence and you intend to call evidence that contradicts them, you must put the substance of that contradictory evidence to the witness during cross-examination and give them the opportunity to comment on it.

Question 3

PROUDMAN V DAYMAN

Answer 3

The leading case that explores the defence of honest and reasonable mistake is Proudman v Dayman (1941) HCA 28 which establishes that for strict liability offences, such as drink driving and speeding offences, an accused person will be found ‘not guilty’ if he or she held an honest and reasonable belief (although a mistaken belief) in a state of facts which, if they existed, would have made the accused person’s act innocent.

Question 4

R v GRAHAM

Answer 4

In Graham v The Queen, the High Court held that a complaint made six years after an alleged sexual assault was not ‘fresh in the memory’ of the complainant for the purpose of s 66 at the time the representation—the complaint—was made.

Question 5

R v ADAM

Answer 5

Not limited to hours or days, sometimes 7 weeks based on severity of incident. Having regard to normal expectation and experience of life, I would regard a statement made at that point in time as still being fresh in the memory of a relevant witness.

Question 6

R v WHITBY

Answer 6

a former soldier who gave evidence that he’d previously seen numbers of drunken men - and police officers - who gave evidence that the accused’s breath smelt of intoxicating liquor, was unsteady on his feet, face flushed, eyes bleary, had 4 saliva on lips and had no idea how much he’d had to drink

Question 7

R V HONEYSETT

Answer 7

Expert opinion must not be from an inexperienced person. The Court held that Professor Henneberg’s opinion was not based wholly or substantially on his knowledge of anatom

Question 8

Weal v Bottom

Answer 8

Expert opinion must be from demonstrated experiencecould be given by an expert, properly so called, that is to say, by a person who by study and instruction in some relevant scientific or specialised field was able to express an opinion, founded on scientific or specialised knowledge thus acquired, as to the likely behaviour of such a vehicle so placed”

Question 9

R v Leung + Wong

Answer 9

Ad-Hoc witness can give evidence on voice ID
Listening to a recording to transcribe it and then hearing that same voice in a TI… Drug code expert statements rely on this case law and KELLER 2006

Question 10

R v TAHERE

Answer 10

ID PARADE CAN BE CONDUCTED UP UNTIL THE EVE OF THE TRIAL.

Question 11

PFENNING TEST

Answer 11

Tendency and coincidence – Probative value v Prejudicial. propensity or similar fact evidence is admissible if its probative value is such that there is no rational view of the evidence that is consistent with the innocence of the accused

Question 12

R v HOCH

Answer 12

Possibility of joint concoction … The evidence … has probative value only if it bears no reasonable explanation other than the happening of the events in issue. In cases where there is a possibility of joint concoction there is another rational view of the evidence

Question 13

R v CRABBE

Answer 13

Recklessness … An accused is said to have been reckless if they acted in the knowledge that a particular harmful consequence would probably result from their conduct, but they decided to continue their actions regardless of that consequence.

Question 14

R v WHYBROW

Answer 14

Must have the intent to carry out the crime for an attempt
The justices held that there was a distinction between the mens rea for murder and attempted murder. Where the defendant is charged with an attempted murder, the intent to kill is the key ingredient of the crime.

Question 15

R v HE KAW TEH

Answer 15

Drugs were changed out for an inert substance – must have intent/mens rea
Accused took every step to complete the offence and would have completed it had the police not intervened. Was taken that the inert substance was assumed but the accused to be the actual heroin and therefore he had completed the offence.

Question 16

R v FILIPETTI

Answer 16

Buhda Sticks were in a common area and police could not prove exclusive possession
“The inescapable fact is there was not enough evidence to enable the jury to rule out the possibility that these buddha sticks in fact were in possession of one of the other occupants,” his Honour continued. And there was no evidence to show they were in Filippetti’s exclusive control.

Question 17

R v IRELAND – R v TALEB

Answer 17

Persistance in questioning after refusal
Justice Hamill pointed to the 1970 High Court of Australia case The Queen versus Ireland, in which the court outlined that the “rule of practice” in these circumstances is that it’s “improper for police… to persist in questioning a suspect after an indication” that they won’t be answering.

Question 18

R v TAYLOR

Answer 18

Reliability of an admission to an investigating official, a court is not confined to the manner in which police conducted the interviewing process. The subjective characteristics of an accused, without more, may adversely affect the likelihood of the truthfulness of the admission for the purpose of s 85(2)

Question 19

R v BRAUN

Answer 19

Admissions excluded due to mental state
In R v Braun, the accused made a series of admissions to deliberately setting a fire which caused the death of her brother. She also confessed to police in a formal record of interview which was video and audio recorded. The accused was 22 years old and had a history of admissions to psychiatric units; her participation in the record of interview occurred shortly after her discharge from psychiatric care.

Question 20

R v WOLTON

Answer 20

Hearsay evidence - Hello Daddy
The child spoke on the telephone saying “Hello Daddy.” Additional evidence was led that the child called the appellant and no-one else “Daddy”.

Question 21

R v MUNDARRA SMITH

Answer 21

CCTV IDENTIFICATION – opinion evidence not admitted
If the lay witness is in no better position than the jury to form an opinion, the witness’s opinion is not admissible. An example is a police officer expressing the opinion that the person depicted in a bank photograph of a robbery is the accused:

Question 22

R v RP

Answer 22

Doli Incapax
Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted.

Question 23

R v ADLER

Answer 23

VOICE ID

Person familiar with voice of the accused can give evidence as to their ID.

Question 24

JONES v DUNKEL

Answer 24

FAILURE TO CALL A WITNESS
This rule operates where there is an unexplained failure by a party to give evidence, to call witneses or to tender documents or other evidence. In appropriate circumstances, this may lead to an inference that the uncalled evidence would not have assisted the party

Question 25

R V JIMINEZ

Answer 25

AUTOMATISM
In Jiminez v The Queen, the court observed that: “… where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. He is not in control of his actions therefor no mens rea.

Question 26

R v Haidari

Answer 26

ID FROM CCTV
Villawood Detention Centre guard ID’d offender based on CCTV knew the offender very well and had seen him that day – admitted into evidence.

Question 27

R v KATARZYNSKI

Answer 27

Self defence to shooting murder
he deceased was shot by the accused following a number of altercations between them in a hotel in Liverpool in the early hours of the morning of 6 April 2001. There is ample evidence before the jury that the accused was intoxicated as a result of his voluntary consumption of alcohol at the time of the shooting. There is no issue that the accused committed the act which caused the death of the deceased although, it will be a matter for the jury to determine whether the act causing death was voluntary and whether the accused at the time of firing the gun had the necessary mental state for the offence of murder.

Question 28

R v M’NAUGHTEN

Answer 28

In January 1843, at the parish of Saint Martin, Middlesex, Daniel M’Naghten took a pistol and shot Edward Drummond, who he believed to the British Prime Minister Robert Pell, wounding him fatally. Drummond died five days later and M’Naghten was charged with his murder. He pleaded not guilty by reason of insanity

i. They laboured under a defect of reason
ii. Caused by a disease of the mind; so that either
iii. He did not know the nature and quality of his acts, or that he did not know what he was doing was wrong.

Question 29

R v TAKTAK

Answer 29

(Prostitute case) MANSLAUGHTER BY OMISSION TO PROVIDE MEDICAL ASSISTANCE - DUTY OF CARE
Voluntary assumption of care for a helpless person a. Secluding the victim so as to remove them from the help of others.

Question 30

R v HALLET -
R v ROYAL -
R v SWAN –

Answer 30

MURDER / CAUSATION – THE BUT FOR TEST

Question 31

R V EAGLETON

Answer 31

BAKER FOR THE POOR - PREPARATION V PERPETRATION – PROXIMITY TEST

Question 32

MAY v O’SULLIVAN

Answer 32

PRIMA FACIE CASE TO ANSWER
1ST LEG SUBMISSION - Possibility of conviction – Question of Law
2nd LEG SUBMISSION – Probability of conviction BRD – Question of fact

Question 33

R v SUBMARANIAN

Answer 33

Heresay influenced the actions of the accused and did not go toward a fact in issue therefor it was admissible.