Sections 140-165B

 

Part 4.2: Judicial Notice

Section 141: Criminal Proceedings: Standard of Proof

Hannes v DPP (Cth) No.2

[2006] NSW CCA 373
Evidence Act 1995 (NSW) s.138 – insider trading and financial transaction offences – executive director of company used confidential information to purchase share options – financial transaction offences require Crown establish “reasonable to conclude accused conducted transactions for dominant purpose of avoiding significant cash transaction” – whether inconsistent with s.141 standard of proof beyond reasonable doubt
Held: appeal dismissed – accused charged under Commonwealth law – court exercises federal jurisdiction under s.68(2) Judiciary Act – Evidence Act applies only by virtue of s.79 Judiciary Act – s.79 will not apply Evidence Act where existing Commonwealth act applies – s.141 does not apply and does not overturn standard of proof set down in Federal Transaction Reporting Act

 

 

Section 142: Admissibility of evidence: Standard of Proof

Petroulias (No.8)
[2007] NSWSC 82, Johnson J
Evidence Act 1995 (NSW) s.142(2) – fraud – application to exclude evidence under s.138
Held: Briginshaw v Briginshaw (1938) 60 CLR 336 principle applies to s.142 – strength of evidence needed to establish a fact on balance of probabilities may vary according to the nature of what is being proved

 

 

Section 144: Matters of common knowledge

Giam (No.2)

(1999) 109 A Crim R 348; NSW CCA [378] 26.11.1999
Evidence Act 1995 (Cth) s.144 - Crown appeal against sentence for fraud offence - where Crown appeal brought after conviction for 6 other fraud offences quashed and new trial ordered - where bond inadequate in light of quashing of other sentences. Held: appeal court can take into account successful conviction appeals without requiring proof - knowledge of matter can be acquired by looking at reasons for judgment.

Mason
NSW CCA [82] 22.3.2000
Evidence Act 1995 (NSW) s.144 - amphetamine offence - sentencing judge made comment that many psychiatrists see amphetamines as worst type of drug and can produce states similar to schizophrenia
Held: judge not permitted to introduce into reasons for sentencing views that may be based upon private experiences or judicial experience.

Vella v DPP NSWSC [897] 7.9.2005
Evidence Act 1995 (NSW) s.144 – magistrate took ‘judicial notice’ of the fact that accused had ‘ongoing campaign against police corruption’
Held: judge not permitted to take notice of such ‘knowledge’ when not in evidence – Crown conceded not ‘knowledge’ with s144(1) and that subs(4) (opportunity to respond) had not been complied with – appeal allowed.

 

 

Part 4.4: Corroboration

Section 164: Corroboration requirements abolished  

Lane v The Queen
Fed.Ct 16.5.1996
Evidence Act 1995 (Cth) s.164 - sexual offences - whether corroboration warning should have been given - complainant 11y at time of offence and 19y at time of trial.
Held: common law obligation to warn jury of necessity of corroboration abolished - no obligation on trial judge to give warning - in this case evidence corroborated and complainant not young at time of trial - evidence not potentially unreliable.


Frugtniet

NSW CCA 21.6.1996
Evidence Act 1995 (NSW) s.164 - accomplice directions
Held: common law directions become academic since Evidence Act.


RMM
NSW CCA 19.8.1996
Evidence Act 1995 (NSW) s.164 - sexual assault - evidence of 11y victim uncorroborated
Held: s.164 abolishes common law corroboration requirement - absence of corroboration still of importance - where conviction upon uncorroborated evidence appeal court will bear firmly in mind possibility of error or misstatement of evidence generally - judge or jury should carefully consider whether uncorroborated evidence of young complainant both truthful and reliable.

Lowe
(1997) 98 A Crim R 300 (NSW CCA)
Evidence Act 1995 (NSW) s.164 - armed robbery - appellant and co-accused arrested by police – victim said one armed robber dressed in black clothing - at time of arrest appellant attired in black clothing - trial judge directed jury description of clothing was insufficient to bear any significance - appellant submitted case was nevertheless an identification one and trial judge failed to warn jury of danger of convicting appellant upon such identification
Held: no distinction in principle between visual, voice and object identification - present case not identification case and trial judge not required to give identification warning - consideration of relationship between common law “McKinney” warning and ss.164 and 165 of the Evidence Act

V
(1998) 100 A Crim R 488
Evidence Act 1995 (NSW) s.164 - sexual offences against step-daughter - complainant alleged appellant had pinched her on breasts in front of B and said “I’m allowed to, she’s my daughter”. - judge refused to allow appellant to call B to deny incident
Held: s.164 does not dispense with direction under Murray (1987) 11 NSWLR 12 at 19 - if appropriate jury should be directed to scrutinize complainant’s evidence with care

Lewis
NSW CCA 8.9.1998
Evidence Act 1995 (NSW) s.164 - murder
Held: although s.164 abolishes requirement for corroboration this does not abolish need for warning under s.165 in appropriate circumstances

Paek
NSW CCA [184] 30.6.1999
Evidence Act 1995 (NSW) ss.165, 164 - supply heroin - uncorroborated evidence of accomplice
Held: ss.164 and 165 do not require warning in terms that it would be dangerous to convict on uncorroborated evidence of accomplice - s.164 removes need for corroboration and necessity for warning it is dangerous to act on uncorroborated evidence - s165 contains no reference to presence or absence of any need for corroboration or to danger of conviction - does not mean such warning will never be appropriate - general law requires warning be given in circumstances of case (Longman v The Queen (1989) 168 CLR 79) - no fixed body of rules requiring warning in specific circumstances or in particular terminology (R v Johnston (1998) 45 NSWLR 362).

Connors
NSW CCA [470] 20.11.2000
Evidence Act 1995 (NSW) s.164 - sexual offences against young boy - no direction as to corroboration evidence.
Held: because no longer requirement to give corroboration warning Judge does not need to direct jury as to what evidence constitutes corroboration - Small (1994) 33 NSWLR 575 no longer applies - in some cases it will be appropriate for judge to tell jury they should examine evidence to determine if any independent evidence to support complainant

Conway
(2002) 209 CLR 203 - HCA
Evidence Act 1995 (NSW) s.164, 165 - murder - evidence given by accomplices
Held: s.164 and 165 abolishes necessity for warning as to acting on uncorroborated evidence, but does not prohibit warning where appropriate - once given directions as to corroboration must be accurate

R W O
NSW CCA [133] 12.7.2002
Evidence Act 1995 (NSW) s.164 - appeal against interlocutory judgment - sexual offences on females under age of 17 by brother-in-law – whether applicant would suffer prejudice because warning relating to uncorroborated evidence, applicable at the time of the alleged offences, no longer available
Held: no relevant prejudice by fact that applicant no longer has benefit of corroboration type directions conventionally given in sexual assault trials of 1960s and 1970s - no right to be tried in any particular way, merely right to be tried according to practice and procedure prevailing at time of trial - at trial judge would be required to warn jury that after such delay it would be dangerous to convict on evidence of complainant alone.


 

Part 4.5: Warnings

Section 165: Warnings

 

Lane v The Queen

Fed Ct, 16.5.1996
Evidence Act 1995 (Cth) s.165 - unreliability of evidence of victims of sexual offences
Held: evidence of sexual assault complainant not expressly mentioned under s.165 - failure to make request under s.165(2) does not remove possibility of reference to any unsatisfactory aspects of evidence - power of trial judge to do so unaffected: s.165(5)

Frugtniet
NSW CCA 21.6.1996
Evidence Act 1995 (NSW) s.165 - accomplice directions.
Held: common law directions become academic since Evidence Act.

Beattie
 

(1996) 89 A Crim R 393

Evidence Act 1995 (NSW) s.165(2) - drug offences - evidence of police witnesses and unsigned admissions in notebooks - judge refused to give warning about unsigned admission in notebook - failed to give reasons for refusal.
Held: judge erred in failing to consider whether good reasons for not giving warning or alternatively for failing to state reasons for refusal.

Malouf
NSW CCA 1.11.1996
Evidence Act 1995 (NSW) s.165 - conspiracy to commit armed robbery - Crown relied upon evidence of co-conspirators.
Held: directions although sparse were adequate under s.165(2)(i) - appeal allowed because verdict unsafe and unsatisfactory

Lowe
(1997) 98 A Crim R 300 (NSW CCA)
Evidence Act 1995 (NSW) s.164 - armed robbery - appellant and co-accused arrested by police – victim said one armed robber dressed in black clothing - at time of arrest appellant attired in black clothing - trial judge directed jury description of clothing was insufficient to bear any significance - appellant submitted case was nevertheless an identification one and trial judge failed to warn jury of danger of convicting appellant upon such identification
Held: no distinction in principle between visual, voice and object identification - present case not identification case and trial judge not required to give identification warning - consideration of relationship between common law “McKinney” warning and ss.164 and 165 of the Evidence Act

Stackelroth
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.165 - fraud - statement of deceased police officer admitted - no request made for warning as to potential unreliability of statement.
Held: there are some cases where trial judge should give warning of general nature covered by this section although no request was made - in this case no miscarriage of justice from failure to give warning.

F
NSW CCA 5.6.1997
Evidence Act 1995 (NSW) s.165 - sexual offences - complaint evidence allowed
Held: warning requires no particular form or words - warning sufficient - appeal will be unsuccessful if no request for warning made at trial.

Bruno
NSW CCA 7.7.1997
Evidence Act 1995 (NSW) s.165 - supply - identification evidence - police went to flat of appellant - one officer claimed saw appellant drop package out window - on retrieval found to be heroin - only other occupant of flat at time was female
Held: neither s.116 nor s.165 requires particular form of warning - warning did not comply with requirements because failed to express need for caution before accepting identification evidence and general reasons for such caution – Powell JA applied Domican as test – Studdert J stated Domican principle that judge must warn of dangers of convicting on identification evidence found statutory expression in s.116

Vella
NSW CCA 1.8.1997
Evidence Act 1995 (NSW) s.165 - sexual offences - multiple complaint evidence allowed.
Held: followed F - no particular form or words required - if decline to give warning should state reasons - warning contained in summing up sufficient.

Monks
NSW CCA 5.8.1997
Evidence Act 1995 (NSW) s.165 - sexual offences - complainant disabled - suffering from cerebral palsy.
Held: s.165 warning not required - disabilities did not affect reliability of evidence.

AGJ
NSW CCA 30.10.1997
Evidence Act 1995 (NSW) s.165 - sexual offences on step-daughter - complaint evidence.
Held: warning under s165 should have been given - allegation raised in context of family dispute, delay in complaint, evidence of circumstances surrounding allegation vague and unsatisfactory and complainant given inconsistent accounts to various people - section does not require direction that it would be dangerous to convict - warning is that evidence may be unreliable and caution is needed - reference to “age” in s.165(1)(c) does not mean warning always required where complainant a child.

Clarke
(1997) 97 A Crim R 414 (NSW CCA)
Evidence Act 1995 (NSW) s.165 - armed robbery - no identification parade because police believed witness impeded by balaclavas - on day of trial witness indicated could identify from photos - identification by photos hurriedly arranged.
Held: s.116 and 165 supersede common law direction under Domican (1992) 173 CLR 555 - Domican warning can still be given if appropriate - greater protection provided under Evidence Act - greater emphasis on telling jury reason warning is required - discussion as to content of warning - must refer to dangers of innocent people having been convicted on honestly mistaken evidence - do not have to tell jury it is dangerous to convict.

Spedding
NSW CCA 11.12.1997
Evidence Act 1995 (NSW) s.165 - murder - Crown case relied on indemnified witness - judge gave substantial warning about possible unreliability of witness’ evidence, including identifying specific reasons for possible unreliability - declined to use terms ‘danger’ or ‘dangerous’
Held: no particular words to be used when giving warning under s165 - form of warning will depend upon circumstances of case.

Smith
NSW CCA 18.12.1997
Evidence Act 1995 (NSW) s.165 - sexual assaults on young child - whether direction as to complainant’s evidence adequate.
Held: warnings as to uncorroborated evidence of complainant governed by ss.164 & 165 - s.164 abolishes requirement to warn about relying on uncorroborated evidence of complainant but judge can still give warning under s.165 in appropriate cases - before finding that waning given under s.165 inadequate must find it was necessary, not just desirable, to include term “dangerous” - in this case direction “you may act upon her word alone, but you must exercise considerable caution before you do so” was sufficient - Judge also referred to other weaknesses in evidence.

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.165 - supply drugs and possess pistol - during search on street asked police “can we talk?” - in interview room refused interview and made comments about being setup - later offered assistance - at request was granted interview with senior police officer making admissions of drug dealing and offering assistance - denied all conversations at trial - claimed statements prejudicial because suggested involved with criminal element and more involved with drug dealing than charges suggested
Held: s165(1)(f) - oral evidence of official questioning that was recorded in notebook but unsigned required warning - conversation with senior police officer was instigated at request of appellant - not official questioning.
Held: s.165(2)(b) (per Simpson J) - warning must be given under judicial authority - in this case too intermingled with counsel’s submissions.

V
(1998) 100 A Crim R 488.
Evidence Act 1995 (NSW) s.165 - sexual assault on stepdaughter - judge refused to give jury warning or caution on assessment of complainant’s evidence.
Held: warning should have been given to jury that evidence may be unreliable and there was need for caution - relevant issues: delay in complaint and fact that complaint made following argument with appellant.

Stanton
NSW CCA 24.7.1998
Evidence Act 1995 (NSW) s.165 - oral confession to police with no contemporaneous record and not reduced to writing until two days later.
Held: Judge should have given reasons for refusal to give warning.

James
NSW CCA 30.7.1998
Evidence Act 1995 (NSW) s.165 - drug offences - no warning that uncorroborated evidence of police officer may be unreliable.
Held: even when not requested, Judge must give warning to jury if it is reasonable to suppose that without warning there may be miscarriage of justice - not necessary in this case - no law that uncorroborated evidence of police officer may be unreliable.

Cook
NSW CCA 24.8.1998
Evidence Act 1995 (NSW) s.165 - aggravated armed robbery
Held: dismissing appeal – “The requirements for a trial judge to warn the jury in relation to identification evidence are now to be found in ss.116 and 165(2), although to an extent those provisions particularly s.116 constitute a statutory enactment of the principles laid down in Domican

Lewis
NSW CCA 8.9.1998
Evidence Act 1995 (NSW) s.165 - murder - corroboration.
Held: although s.164 abolishes requirement for corroboration this does not abolish need for warning under s.165 in appropriate circumstances - no particular words required - s.165(1)(a)-(g) not an exclusive code - other types of evidence may be unreliable.

Warburton
NSW CCA 15.9.1998
Evidence Act 1995 (NSW) s.165 - sexual assault - issue of consent - evidence of psychologist that drugs taken by complainant prior to incident could have affected perception and memory - also suffering from severe personality disorder - no request made for warning under s.165 as to unreliability of evidence - whether warning should have been given at common law.
Held: s.165 did not apply because no request made - in context of case directions sufficient - clear to jury that reliability of complainant was central issue.

McKenzie
NSW CCA 16.9.1998
Evidence Act 1995 (NSW) s.165 - sexual assault - crown case relied almost solely upon complainant - judge expressly limited use that could be made of complaint evidence - counsel asked for s.165 warning - Judge refused, giving Murray direction that jury must scrutinize evidence with great care
Held: no further warning required.

Nguyen & Tran
NSW CCA 30.10.1998
Evidence Act 1995 (NSW) s.165 - police gave observation evidence that contained some inconsistencies - Judge refused to give unreliability direction.
Held: s.165 warning does not usually apply where witnesses give different contemporaneous observations and statements about events - this is everyday experience.

Lau
(1998) 105 A Crim R 167; NSW CCA 2.12.1998
Evidence Act 1995 (Cth) s.165 - drug offences - crown relied on observations of police officers of transactions.
Held: evidence not unreliable just because observations made by police officers.

Tsoukalos
NSW CCA 7.12.1998
Evidence Act 1995 (NSW) s.165 - deemed supply - two arresting police officers gave evidence of finding amphetamine, cocaine and heroin in appellant’s car and of admissions by appellant.
Held: direction under s.165 must convey to jury that evidence in respect of which warning is given may be unreliable - directions here did not convey to jury that uncorroborated evidence of police of admissions allegedly made by appellant was evidence of a kind law regards as possibly unreliable.

PAH
NSW CCA 18.12.1998
Evidence Act 1995 (Cth) - s.165 - sexual assault - counsel at trial did not request warning as to unreliability of complainant’s evidence.
Held: dismissing appeal - s.165(1) not exhaustive of circumstances where warning should be given - s.165(2) highlights importance of request from counsel where warning appropriate - in absence of request at trial difficult to prove absence of warning resulted in miscarriage of justice.

Williams
(1999) 104 A Crim R 260; NSW CCA 22.2.1999
Evidence Act 1995 (NSW) s.165 - sexual assault
Held: dismissing appeal - s.165 not exhaustive of circumstances where warning should be given - requirement to give warning does not depend solely upon whether request made at trial for warning - warning may be required where judge assesses evidence as unreliable - need clear miscarriage of justice before court will intervene.

Davis
NSW CCA [15] 24.2.1999
Evidence Act 1995 (NSW) s.165 - child sexual assault - young complainant - no request for warning.
Held: s.165 does not impose universal obligation, independent of request, to give potential warnings about unreliability of complainant’s evidence - warning is discretionary and depends upon judge’s assessment of circumstances of case - no need for warning here - complainant’s evidence corroborated by distress, complaint and medical evidence.

Greenham
NSW CCA [8] 8.3.1999
Evidence Act 1995 (NSW) s.165 - aggravated indecent assault - complainant aged 13-14y at time of offences and 16y at time of trial - no warning as to possible unreliability of complainant’s evidence.
Held: warning appropriate given complainant’s age, delay in complaint, lack of corroboration and issues reflecting poorly on complainant’s credibility (ie conflict between her evidence and that of other Crown witnesses, her readiness to sign additional police statement incorporating part of statement from another Crown witness) - judge should not only warn jury that evidence may be unreliable and should be assessed with care, but also inform jury of matters which may cause it to be unreliable

Moffatt [No.3]
NSWSC (Kirby J) [233] 26.3.1999
Evidence Act 1995 (NSW) s.165(1)(c) - murder - while intoxicated struck male V - made admissions in interview with police.
Held: unreliability because of ill health can include alcoholism and level of intoxication.

Fernando & Fernando
[1999] NSW CCA 66, 14.4.99
Evidence Act 1995 (NSW) s.165(1)(a),(b) – murder and sexual assault - Crown witness gave evidence in court that prior statement he made was untrue - (“A told me he had a machete”) - “identification evidence” of inanimate objects that could be linked to accused
Held: statement was hearsay - judge erred in ruling that unreliability warning not required - evidence also fell within wide definition of “admission” in Act - Horton (NSW CCA, 2.11.98); Esposito (NSW CCA, 20.11.98) - judge bound to give warning unless good reasons for not doing so: s.165(3) - fact that hearsay rule of exclusion did not apply to previous representations did not mean, for purposes of s.165, evidence ceased to be hearsay and became direct evidence.
Held: trial judge should state reasons for declining to give warning under s.165 (Beattie (1996) 40 NSWLR 155 at 160) - need not be stated in judgment refusing warning but must be disclosed - in this case judge’s reasons can be properly discerned from summing up and another evidentiary rulings.
Held: categories of potentially unreliable evidence not exhaustive - s.165(1) could apply to evidence linking inanimate objects to accused e.g. where identification evidence of vehicle was central link in connecting accused to crime warning was required - in this case witnesses identified orange bag seen in car of accused.

See also Fernando - HCA Special Leave Application, 11.2.2000

Salama
NSW CCA [105] 10.5.1999
Evidence Act 1995 (NSW) s.165 - discharge firearm with disregard for safety - accused made statements to wife and ‘000’ operator that shooting was “a mistake” - judge warned jury statement unreliable because self serving
Held: judge should hesitate to give warning under s.165 where there has been no request by Crown under s.165(2) - even where request judge still has discretion to refuse where good reasons: s165(3) - judge erred in warning jury.

Baker
NSWCCA [129] 28.5.1999
Evidence Act 1995 (NSW) s.165 - malicious wounding - judge sitting alone
Held: judge in breach of s.33 Criminal Procedure Act - should have made reference in judgment to s.165 warning as to unreliability of complainant’s evidence.
Paek
NSW CCA [184] 30.6.1999
Evidence Act 1995 (NSW) ss.165, 164 - supply heroin -uncorroborated evidence of accomplice
Held: ss.164 and 165 do not require warning in terms that it would be dangerous to convict on uncorroborated evidence of accomplice - s.164 removes need for corroboration and necessity for warning it is dangerous to act on uncorroborated evidence - s165 contains no reference to presence or absence of any need for corroboration or to danger of conviction - this does not mean that such warning will never be appropriate - general law requires warning to be given in circumstances of case (Longman v The Queen (1989) 168 CLR 79) - no fixed body of rules requiring warning in specific circumstances or in particular terminology (Johnston (1998) 45 NSWLR 362).
 
Flood
NSW CCA [198] 23.7.1999
Evidence Act 1995 (NSW) s.165(1)(c) - sexual assault - complainant had intellectual and physical disabilities.
Held: s.165(1) applies test of possibility i.e. “may be unreliable” to evidence - issue is whether complainant’s evidence “may be affected by (mental) ill health or injury (s.165(1)(c)) - this required fact finding exercise by judge as to whether or not reliability of complainant’s evidence “may be affected” by mental condition - finding is made on balance of probabilities (s.142) - judge was entitled to make finding that complainant’s evidence not unreliable.
Held: even where judge finds evidence may be affected discretion not to give warning if there are “good reasons for not doing so” (s.165(3)) - alternatively trial judge’s intention to direct jury in his summing-up by detailed directions, rather than incantation of statutory formula, is capable of constituting “good reasons” for not giving warning.

Lonie & Groom
NSW CCA [319] 15.10.1999
Evidence Act 1995 (NSW) s.165(1)(c) - drug offences - police officer admitted to stealing money from appellants during investigation - alleged two other officers involved in investigation also corrupt - allegations denied by those officers - evidence admitted of confession made by one appellant to police officer outside house - recorded in notebook but not signed and not referred to in ERISP - s.424A does not apply - Crown raised issue of warning under s.165(1)(f) but judge seemed to dismiss idea - no further request made.
Held: evidence of self -confessed corrupt officer - not sufficient to tell jury to scrutinize evidence carefully - must direct jury that evidence may be unreliable (or similar term) and explain why - must also warn of need for caution in determining whether to accept the evidence and what weight to give it - use of term “scrutinize carefully” when prosecution depends substantially on one witness.
Held: evidence of other police officers - s.165(1)(c) does not apply but evidence does not have to fall into specified category to be unreliable under s.165 - when deciding whether to give warning judge must apply test “whether on balance of probabilities evidence may have been unreliable” - not sufficient to decline to give warning because evidence of one witness denied by other witnesses - Judge should have told jury that if they accept evidence of corrupt officer they may think evidence of other officers was unreliable and give reasons for possible unreliability.
Held: admission - issue probably raised by party as required by s.165 because Crown party to proceedings - in circumstances of case warning should have been given irrespective of s.165.
 
Taranto
NSW CCA [396] 16.12.1999
Evidence Act 1995 (NSW) - s.165(1)(d) - wounding with intent to do GBH and mal wounding - Crown witness accompanied appellants to victim’s house to confront her about alleged theft and AR - crown witness gave evidence he saw male appellant shoot complainant.
Held: allowing appeal - judge should have warned jury about possible unreliability of witness under s 165(1)(d) - material capable of founding reasonable suspicion that crown witness criminally concerned in circumstances surrounding offence - should give reasons for refusing to give warning.

Fernando
HCA Special Leave Application, 11.2.2000
Evidence Act 1995 (NSW) s.165 - Crown witness gave evidence in court that prior statement he made was untrue
Held: refusing leave - where witness asserts prior statement false good reason not to give warning under s 165 - issue of reliability clear to jury

Grey
(2000) 111 A Crim R 314
Evidence Act 1995 (NSW) - s.165(1)(d) - systematic theft and reconstitution of cars - tenor of cross-examination of Crown witness was that he committed conversions although allegation not specifically put to him - no direction under s.165(1)(d) given.
Held: dismissing appeal - judge to decide whether evidence capable of raising reasonable suspicion witness criminally involved - if there is such evidence obliged to give direction – request for s.165 direction at trial on different, and unsubstantiated basis - too late at appeal to request different warning.

Conway v The Queen
Fed Ct. [461] 11.4.2000
Evidence Act 1995 (Cth) - s.165 - murder of wife - arranged for two co-offenders to kill wife by heroin overdose - evidence given against appellant by two co-offenders who pleaded guilty to murder - whether judge’s directions as to corroboration of accomplices adequate
Held: dismissing appeal - s.165(4) does not require any particular form of warning to be given under s.165(2) - judge must give such directions as are necessary to ensure jury understands dangers associated with accomplice evidence and need to find supporting evidence which implicates accused - Act provides greater flexibility in directions than available under common law - not bound to identify items of corroboration but once embark upon the task must do it correctly.

Covill
(2000) 114 A Crim R 111
Evidence Act 1995 (NSW) s.165 - malicious wounding - whether judge should have warned jury about possible unreliability of Crown witnesses should jury decide they had concealed material information from police.
Held: type of evidence that may be unreliable not restricted by s.165 - s.165 not inclusive or exhaustive - probably does not include total evidence of crown witness on basis they may have concealed material information from police - in this case warning given was sufficient to direct jury to possible unreliability of witnesses.

Heron
NSW CCA [312] 17.8.2000
Evidence Act 1995 (NSW) s.165 - murder
Held: s.165 does not operate where no request from counsel

Nguyen
NSW CCA [285] 22.8.2000
Evidence Act 1995 (NSW) s.165(1)(b) & (2) - prohibited drug - identification evidence given by purchaser of drug.
Held: directions to jury did not comply with requirements - no reference made to delay in making identification, fact that identification made from photographs, specific dangers in circumstances and danger where identifying someone from different race.

Murphy
NSW CCA [297] 23.8.2000
Evidence Act 1995 (NSW) s.165 - sexual assault - trial by judge alone - complainant’s evidence required warning under s.165 - issue of identification - evidence affected by drugs and alcohol - delay in complaint - evidence uncorroborated.
Held: failure of judge to advert to warning amounts to breach of s.17(2) and (3) Criminal Procedure Act 1986 - new trial ordered.

Baartman
NSW CCA [298] 13.9.2000
Evidence Act 1995 (Cth) - s.165 - murder - crown led evidence from witness who overheard conversation between appellant and co-offender prior to offence - witness feared he would be charged with offence of conceal serious offence - long delay in approaching police.
Held: dismissing appeal - no error in judge’s failure to give warning as to unreliability of evidence - s.165(1) not exclusive code - there may be other situations where judge should give warning on unreliability of evidence - appeal court will only intervene where warning plainly necessary and where danger of acting on evidence is real and substantial and unlikely to have been fully perceived by jury.

Kirby
NSW CCA [330] 13.9.2000
Evidence Act 1995 (NSW) s.165 - robbery - jury given photos from security camera to make comparison during trial to accused.
Held: warning under s.165 should be given where jury asked to make comparison - does not depend upon request by accused to give warning - warning continues independently of s.165.

Connors
NSW CCA [470] 20.11.2000
Evidence Act 1995 (NSW) s.165 - sexual offences against young boy - complainant 14y at time of trial - 12y old brother gave some evidence in support
Held: Judge not required to give warning under s.165 just because of age of witnesses - especially in this case where witnesses giving evidence of recent events - no specific wording required when giving warning under s.165 - in this case direction to jury was sufficient.

Mayberry
NSW CCA [531] 14.12.2000
Evidence Act 1995 (Cth) - s.165(2) - sexual assault on two complainants
Held: s.165(2) warning should have been given in view of inconsistencies in evidence of one complainant especially in relation to evidence of complaint - jury should have been warned complainant’s evidence may be unreliable, basis for unreliability and need for caution in assessing complainant’s evidence.

TJF
(2001) 120 A Crim R 209; NSW CCA [127] 12.4.2001
Evidence Act 1995 (NSW) s.165 - sexual offences against two sisters - friend of family - convicted of only one count - evidence of complaints made 7 months and 2 years after alleged offences - judge declined to give warning under s.165 after request.
Held: (per Studdert J and Beazley JA) - should have been warning unless good reason not to have done so - desirable to state reasons for refusal to give warning - jury told they could take into account delay when assessing complainant’s evidence but not specifically directed complaint evidence may be unreliable because of delay - no good reason for not giving warning - appeal allowed - warning should have included alerting jury to different versions of complaint.
Held: (per Sperling J) - agreed warning should have been given - s.165 requires warning to refer to possible unreliability of complaint evidence as hearsay evidence - does not require Judge to refer to other reasons for possible unreliability such as different versions.

PLV
(2001) 51 NSWLR 736; 123 A Crim R 194; NSW CCA [282] 25.7.2001
Evidence Act 1995 (NSW) s.165 - sexual offences on younger sister committed 25 years prior to trial - sister aged 11-12y at time of offences - evidence corroborated by younger brother in relation to one count - brother aged 8-9y at time of offence.
Held: no request for warning made under s.165 - judge could still have given warning as to potential unreliability of witnesses because of youth at time of offences - warning not required in circumstances of case - jury well aware of potential of unreliability.

Stewart
(2001) 52 NSWLR 301; 124 A Crim R 371; NSW CCA [260] 5.9.2001
Evidence Act 1995 (NSW) s.165 - co-accused gave evidence against accused after receiving discount on sentence - whether warning by TJ under s.165(2) inadequate.
Held: (per Howie J, with whom Hulme agreed): evidence “of a kind that may be unreliable” refers to evidence, unreliability of which may not be apparent to jury, or where court has some special appreciation of likelihood of evidence being unreliable, or where for some reason jury may be misled in evaluating reliability of evidence.
Held (per Spigelman CJ and Hulme J): TJ was required to give s.165 warning in relation to fact co-A was given discount - (per Spigelman CJ) because co-A came within category of unreliable evidence under s165(1)(d) - (per Hulme J) because discount legislative scheme brought evidence within s165.
Held: (per Spigelman CJ and Hulme J): where warning given TJ should inform jury of all matters under s165(2)(b) unless TJ determines under s165(3) there is good reason not to comply with s165(2)(b).
Held: (per Howie J, Spigelman CJ agreeing): term ‘accomplice’ should not be used when giving warning.

Rose [N0.10]
NSWSC [1060] (Kirby J) 22.11.2001
Evidence Act 1995 (NSW) s.165 - murder - crown witness gave evidence he had seen victim night she was allegedly murdered - identification evidence favourable to accused.
Held: Crown entitled to direction - jury not to be directed as to possible unreliability but directed to consider carefully reliability of evidence and what issues need to be kept in mind

Clark
(2001) 123 A Crim R 5; NSW CCA [494] 13.12.2001
Evidence Act 1995 (NSW) s.165(1)(d) - Crown’s witness testified under indemnity from prosecution – no warning requested at trial - whether witness was “criminally concerned in events giving rise to proceeding”
Held: no error in failure to give warning – s.165 does not impose duty to give warning unless request made - witness not someone who might reasonably be supposed to have been “criminally concerned in the events giving rise to the proceeding” - not cross-examined to this effect – not shown to be “accessory after fact” - indemnity did not have sufficient “significance” to reliability of evidence

Camilleri
(2001) 127 A Crim R 290; NSW CCA [527] 19.12.2001
Evidence Act 1995 (NSW) s.165(1)(b) - warning as to voice identification - police officer spoke to accused on several occasions during search - subsequently purported to identify accused’s voice on surveillance tapes - adequacy of warning to jury
Held: allowing appeal - judge should have warned jury that fact that Crime Commission advised police officer he was about to hear voice of accused on tape prior to making of identification affected reliability of evidence – Domican applied to s.165 and s.116 warning.

Conway
(2002) 209 CLR 203 - HCA
Evidence Act 1995 (NSW) s.164, 165 - murder - evidence given by accomplices
Held: s.164 and 165 abolish necessity for warning as to acting on uncorroborated evidence, but do not prohibit such warning being given where appropriate - once directions as to corroboration given must be accurate

Nguyen
NSWSC O’Keefe J [1254] 18.4.2002
Evidence Act 1995 (NSW) s.165 - negative identification evidence - evidence by witnesses that suspect was not assailant - meaning of judge “is to inform” jury there is need for caution in relation to identification evidence.
Held: “identification evidence” definition applies to positive identification not negative identification - "is to" is imperative and requires, as a matter of law, judge acts in accordance with directives in section.

Narayanan
NSW CCA [200] 30.5.2002
Evidence Act 1995 (NSW) s.165 - fraud offences - evidence given by crown witness who was possible accomplice
Held: allowing appeal - warning insufficient - did not include matters that may cause unreliability - insufficient to merely point out to jury that witness could be an accomplice

Reardon, Michaels, Taylor
NSW CCA [203] 4.6.2002
Evidence Act 1995 (NSW) s.165 - conspiracy to import commercial quantity of cocaine - no warning given in relation to police informer
Held: evidence of police informant potentially within opening words of s.165(1) - also witness received substantial benefit and therefore caution should be used - no miscarriage in circumstances of case because evidence not controversial

Chan
(2002) 131 A Crim R 66; NSW CCA [217] 7.6.2002
Evidence Act 1995 (NSW) s.165 - drug importation - evidence given by registered informant of NCA - commenced informing after arrest for serious drug matters in Victoria - whether warning should have been given
Held: dismissing appeal - must show evidence is of a kind which experience of court has shown to be more unreliable that general evidence (see Clark (2001) NSW CCA [494] and Stewart (2001) 52 NSWLR 301 at 305 - no warning required for informant’s evidence

Yammine & Chami
(2002) 132 A Crim R 44; NSW CCA [289] 23.7.2002
Evidence Act 1995 (NSW) s.165 - drug and kidnapping offences - alleged attack on person dealing drugs on appellant’s behalf - warning as to caution in relation to witness who may have been criminally involved
Held: warning deficient - referred only to mental state (schizophrenia) of victim at time of offence and failed to mention mental state at time of giving evidence - failed to advise jury failure of witness to give evidence would result in increase of sentence (followed Stewart) - failed to warn jury of need for caution in determining whether to accept evidence of witness and weight to be given

JJN
NSW CCA [281] 24.7.2002
Evidence Act 1995 (NSW) s.165(1)(b) - sexual assault - hearsay evidence - dead witness - evidence from complainant’s mother that deceased told her of incriminating behaviour of accused - whether s.165(2)(b) warning adequate - TJ warned only that evidence could not be tested because maker of statement dead
Held: failure to comply with s.165(2)(b) - failed to inform jury of matters that may “cause evidence to be unreliable” - appeal allowed.

Ton
(2002) 132 A Crim R 340; NSW CCA [337] 19.8.2002
Evidence Act 1995 (NSW) s.165(1)(e), 165(2) - malicious wounding with intent to do grievous bodily harm – prison attack – no warning given as to evidence of complainant
Held: no error in omitting to give s.165 direction - complainants not prison informers within s.165(1)(e)

King

NSW CCA [365] 2.9.2002

Evidence Act 1995 (NSW) s.165(1)(b) - armed robbery - no direct identification of robber by victim, who identified robber as man seen previously in car park - A identified as man in car park by circumstantial evidence - real doubt whether assertion that robber was man victim had seen previously amounted to identification evidence.
Held: unreliability warning not necessarily called for but prudent in this case - doubt as to whether evidence could be classified as evidence of a kind that may be unreliable – appeal dismissed

Vincent

(2002) 133 A Crim R 206; NSW CCA [369] 6.9.2002

Evidence Act 1995 (NSW) s.165 - robbery with corporal violence - robbed chemist - victim followed offender outside and was given number plate of escaping van by female passer-by - female unable to be found - evidence admitted - judge declined to give warning as to possible unreliability of evidence
Held: after concluding representation made in circumstances where unlikely to be fabrication and highly probable it was reliable TJ entitled to conclude no need to give warning.
Coe
NSW CCA [385] 25.9.2002
Evidence Act s.165(2) - robbery with violence – whether TJ erred in his directions to jury as to how they could use out of court statements of principal crown witness.
Held: no error in instructing jury it was for them to assess weight to be given to witness’s conflicting testimony and statement to police - although no warning pursuant to s 165 was given, requirement to give such warning arises only where party requests it and no such request made at trial.

Saltan
NSW CCA [423] 30.9.2002
Evidence Act 1995 (NSW) s.165(1)(d)
Held: approved Stewart (2001) 52 NSWLR 301 - should not use word “accomplice”

Dodd
(2002) 135 A Crim R 32; NSW CCA [418] 11.10.2002
Evidence Act 1995 (NSW) s.165(1)(b) – armed robbery - photographic identification evidence - positive identification - unreliability warning and warnings regarding dangers of convicting on unreliable identification evidence
Held: adequate warnings given in relation to identification evidence: Festa [2001] HCA 72; Domican (1992) 173 CLR 555.

Rose
(2002) 55 NSWLR 701; NSW CCA [455] 19.11.2002
Evidence Act 1995 (NSW) s.165(1)(b) - murder – evidence from witness he had seen deceased night of alleged murder - identification did not fall within definition of “identification evidence” under s.165(1)(b)
Held: no error in judge giving warning under s.165 where identification evidence favourable to accused - warning would have to be adapted – common law concern about reliance on identification evidence as expressed in Domican best reflected in s.116

Riscuta & Niga
NSW CCA [6] 6.2.2003
Evidence Act 1995 (NSW) s.165 - supply drugs - voice identification evidence – adequacy of warnings on voice identification evidence - witness heard appellant’s voice in English on previous occasion and then in Romanian - overconfidence in witness - whether witness's prior familiarity with voice amounted to unfair prejudice
Held: directions and warnings not sufficient – failure to inform jury of all matters that may have caused evidence to be unreliable – failure to refer to fact that voice in interview was in English while voice on tapes was in Romanian - did not necessarily make evidence unreliable but may have caused unreliability - viewed from perspective of s 116(1) summing up did not identify any special need for caution in accepting voice identification evidence - appeal dismissed applying proviso

Inamata
(2003) 137 A Crim R 510; NSW CCA [19] 14.2.2003
Evidence Act 1995 s165 – AR in company - identification directions – sufficiency of directions on factors that may have made identification unreliable
Held: appropriate to deal with issues affecting reliability of identification together rather than in respect of each witness - not necessary to refer to every conceivable "weakness" in identification evidence - directions concerning weaknesses need not follow particular formula - sufficient if directions provide sufficient understanding of potential weaknesses in particular evidence - appeal dismissed

Whalen and Willer
(2002-2003) 56 NSWLR 454; NSWCCA 59 13.3.2003
Evidence Act 1995 s165(1)(b) - cultivate commercial quantity/supply prohibited plants (cannabis) - identification evidence - identity of inanimate object (motor-vehicle) - whether s 165 direction required
Held: no question of direct evidence of identification - similarity of features not significant part of what was relied on – s.165 warning was not required – nevertheless deficiencies in summing-up - appeal allowed

Houssein
NSW CCA [74] 28.3.2003
Evidence Act 1995 s.165(1)(a) - maliciously inflict GBH - stabbed brother – submitted on appeal warning should have been given under s.165
Held: no application made for warning or direction under at trial - evidence not of a "kind" to which s 165 referred (R v Stewart [2001] NSWCCA 260) - no risks of inappropriate use of statement sufficient to justify excusing appellant from rule 4

Lumsden
NSW CCA [83] 3.4.2003
Evidence Act s.165(2) - ongoing supply of drugs to undercover police officer - failure to provide clear and cogent warning as to dangers of convicting on basis of identification evidence or any instruction as to factors which may have affected reliability
Held: appeal dismissed - no request for any redirection or warning under s.165 – directions would have been inadequate if sergeant's identification evidence had been significant part of proof of guilt but evidence was not significant.

Sullivan
NSW CCA [100] 11.4.2003
Evidence Act 1995 (NSW) s.165(1)(d) - accomplice evidence - failure to advise jury accomplice could be re-sentenced if did not give evidence in accordance with undertaking - failure to emphasis this as possible reason for unreliability
Held: directions inadequate - importance of advising jury of possibility of re-sentencing

Harbulot
NSW CCA [141] 21.5.2003
Evidence Act 1995 (NSW) s.165(1)(a) – complaint evidence
Held: discussion as to meaning of “kind of evidence” that may be unreliable – referred to Stewart and Clarke – no basis here for finding evidence unreliable

Fowler
(2003) 151 A Crim R 166; NSW CCA [321] 11.11.2003
Evidence Act 1995 (NSW) s.165 – murder – witness gave evidence at trial of conversation with accused in 1986, one year prior to murder – statement made 6 years after murder – no independent memory of conversation – conversation held admissions
Held: no error in declining to give warning – in context of case no issue as to unreliability raised at trial

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.165 – multiple sexual assault offences – 3 offenders - only S gave evidence - implicated G and H to a degree – no request made for warning under s.165(1)(d) – no warning given
Held: appeal dismissed – no error in failing to give warning as to potential unreliability of evidence of S – no request made – other evidence implicating H and G – no real basis for finding S had anything to gain from giving evidence – S not seeking to exculpate himself by implicating G and H

Ayoub
NSW CCA [209] 28.6.2004
Evidence Act 1995 (NSW) s.165 – maliciously inflict grievous bodily harm with intent – complainant stabbed in residential unit – appellant one of several persons present at time of stabbing – issue was identity of assailant – witness gave evidence for appellant that another person present in flat had confessed to stabbing while in prison with witness – TJ gave unrequested warning as to possible unreliability of defence witness as prison informer
Held: rarely appropriate to warn jury to scrutinize evidence of defence witness no matter how unreliable (identification evidence an exception) – no warning should be given for accomplice giving evidence on behalf of accused – judges should not give warning without first raising issue with counsel

Diaz
NSW CCA [251] 26.7.2004
Evidence Act 1995 (NSW) s.165 – sexual assault on 15y girl – complainant intoxicated at time of offence – TJ refused to give warning under s.165
Held: dismissing appeal - no error in failure to give warning - no warning required where relevance of intoxication to reliability of witness clear to jury – applied Baartman [2000] NSW CCA 298: “In the nature of things, evidence given by all witnesses may be unreliable. Evidence is necessarily dependent upon observation and recollection. Both are fallible. However, s 165 is not dealing with unreliability in this sense. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts in dealing with certain types of evidence or because there is a danger that the jury may over-estimate the probative value of certain evidence. ...”

Saengsai-Or
(2004) 61 NSWLR 135;147 A Crim R 172; NSW CCA [108] 19.8.2004
Evidence Act 1995 (NSW) s.165 – import prohibited drug – found in possession of bottles of cognac containing heroin – in interview with police gave account suggesting importation arranged by two brothers – both brothers gave evidence on behalf of Crown denying involvement – no warning given as to potential unreliability of witnesses – no request made for direction
Held: appeal allowed - appropriate to give warning if it had been asked for – no error in not giving warning when not asked but in summing up judge seriously undermined defence submission that evidence should be scrutinized with care

Attalah
NSW CCA [318] 20.9.2004
Evidence Act 1995 (NSW) s.165 – armed robbery in company – group of males robbed lone pedestrians on two occasions – co-offender agreed to give evidence for Crown in exchange for leniency – received bond – co-offender cross-examined by Crown under s.38 Evidence Act
Held: appeal allowed, conviction quashed – failure to tell jury co-offender was at risk of having bond cancelled and being sent to prison if he did not give evidence for prosecution - jury could not be expected to understand effect of bond – R v Stewart (2001) 52 NSWLR 301 applied.

Livingstone
(2004) 150 A Crim R 117; NSW CCA [407] 22.11.2004
Evidence Act 1995 (NSW) s.165 – knowingly concerned in importation commercial quantity cannabis and perjury – assisted in transferring drug money outside Australia – role and involvement of appellant not initially known – subsequently threatened by associates of co-offender seeking to recover money - lied to police and NSW Crimes Commission about money – evidence given against appellant by two co-accused involved in importation and two more involved in attempt to recover money
Held: appeal dismissed - no requirement that direction as to potential unreliability of persons reasonable suspected of being involved in offence contain warning that it would be dangerous to convict on uncorroborated evidence of accomplice

El-Azzi
NSW CCA [455] 16.12.2004
Evidence Act 1995 (NSW) s.165 – conspiracy to manufacture large commercial quantity methylamphetamine – ex police officer – Crown witnesses included co-offenders granted immunities and reduced sentences – adequacy of warning – whether warning should have referred to possible contamination of evidence and motive to lie - what evidence is included in “evidence of a kind that may be unreliable”
Held: appeal dismissed - directions under s.165 adequate – followed Stewart [2001] NSW CCA 260 – s.165 only applies to evidence that jury would fail to appreciate may be unreliable – jury can appreciate relevance of contamination of evidence and motive to lie to unreliability of witness – warning not required

Knight
NSW CCA [241] 14.7.2005
Evidence Act 1995 (NSW) s.165 – prison murder – evidence given by friend of deceased of comment made by deceased that he was being hassled by Kooris for cigarettes – whether warning under s.165 should have been given
Held: appeal dismissed – possible bias of witness as friend of deceased well within general experience of jury - followed El Azzi
 
Brown, Barwick and Brown
NSW CCA [69] 22.3.2006
Evidence Act 1995 (NSW) s.165 – mal wounding – complainant found severely bashed – at time of trial no memory of assault – named accused as assailants to sister and other witnesses on two occasions shortly after assault – evidence of statements admitted
Held: appeal allowed – failure to give appropriate warning as to possible unreliability of hearsay evidence – failure to refer to matters affecting unreliability
 
Aslett
NSW CCA [49] 24.3.2006
Evidence Act 1995 (NSW) s.165 – sexual assault / AR – 4 offender broke into home unit and robbed occupants – 16y daughter sexually assaulted – whether accomplice direction adequate
Held: appeal dismissed – warning adequate – no need to use term “may be unreliable”
 
Kanaan
NSW CCA [109] 13.4.2006
Evidence Act 1995 (NSW) s.165 — murder - negative identification evidence - witness gave evidence that A and B were not at scene of crime - directions as to potential unreliability - whether “negative” or “exculpatory” identification evidence is evidence “of a kind which may be unreliable” pursuant to s165
Held: although negative identification evidence does not fall within terms of s 116 Evidence Act, it is nevertheless “evidence of a kind that may be unreliable”, and thus falls within s 165 - mere fact that evidence favours accused is not a good reason for not giving s 165 warning in relation to it – discussion as to content of direction [145]
 
Kanaan
NSW CCA [109] 13.4.2006
Evidence Act 1995 (NSW) s.165(1)(d) - murder – evidence of accomplice – adequacy of direction – whether required to warn jury as to danger of conviction on uncorroborated evidence of accomplice
Held: Appeal dismissed – content of warning must provide jury with knowledge of matters not within their general experience – no specific words required – no direction as to danger of convicted in uncorroborated – summary of effect of s.164-5 at [217]
(1) It is not necessary for the evidence of a witness who may reasonably be supposed to have been criminally concerned in the events giving rise to the trial to be corroborated.
(2) The judge, if requested to do so and unless of opinion that there are good reasons not to do so, is:
(a) to give a warning that the evidence of that witness may be unreliable,
(b) to inform the jury of matters that may cause it to be unreliable, and
(c) to warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The matters to which reference was generally made in the directions which accompanied the common law accomplice warning ( see pars [164]–[166] supra ) should, when appropriate, generally be used when informing the jury of the matters which may cause the evidence of that witness to be unreliable.
(4) The judge may, if satisfied that it is necessary in the interests of justice to do so in the particular case, give a warning that it would be dangerous to convict on the uncorroborated evidence of such a witness, but the judge is never under a duty to do so.
 
Collins
[2006] NSW CCA 162, 22.5.2006
Evidence Act 1999 (NSW) s.116, 165 – aggravated robbery – complainant attacked in church yard by female assailant – complainant named accused as assailant to police – subsequently sought to withdraw identification – description of assailant provided by two eye-witnesses – witnesses suggested assailant of middle eastern origin – accused Islander – warning to exercise caution given in relation to both evidence of identification and evidence of description
Held: appeal dismissed – no error – while warning not required for descriptive evidence nothing to prevent trial judge giving direction where appropriate – in circumstances of case appropriate to point out weaknesses in descriptive evidence – although warning had potential to undermine exculpatory value of descriptive evidence, not unfairly prejudicial
 
Robinson
(2006) 162 A Crim R 88
Evidence Act 1995 (NSW) s.165(1)(d) - murder – evidence of accomplice
Held followed Kanaan – should always avoid the term “dangerous to convict”
 
Singh v DPP
[2006] NSW CCA 333, 18.10.2006
Evidence Act 1995 (NSW) s.165(1)(d) – mal inflict GBH – no warning given as to accomplice evidence – no warning requested
Held appeal dismissed – appeal may still be allowed if failure to give warning caused miscarriage – no miscarriage in circumstances of case
 
Em
NSW CCA [336] 3.11.2006
Evidence Act 1995 (NSW) s.165 – murder – 2 home invasions - conviction appeal - accused indicated he did not wish to have any conversation with police recorded or written down – went with police to local park for chat – covert listening devices worn – police admitted they believed E would not talk if aware conversation being recorded – partial caution given - whether TJ should have warned jury evidence of admissions potentially unreliable
Held: appeal dismissed – warning may be appropriate in certain circumstances – not required in this case
 
RELC
NSW CCA [383] 29.11.2006
Evidence Act 1995 (NSW) s.165 – sexual assault on child – sexual assault allegedly observed by appellant’s daughter – daughter provided some corroboration to complainant in interviews with police – daughter changed story and denied any assault at trial – warning as to unreliability given by TJ at request of Crown – no equivalent warning given in relation to complainant
Held: appeal allowed - unreliability warning based on age, relationship to accused, inconsistencies in statements, admission of lying to police and untrue answers in cross-examination – these factors did not justify warning under s.165 – serious injustice
[79] In Stewart this Court was divided as to whether s 165 should be understood having regard to the common law origins of warnings or seen as a “fresh start”. It is not necessary to enter upon that debate to resolve this appeal. However, it is plain that when a judge gives a warning it will commonly be seen by the jury to be of importance with a potential to significantly influence the jury when it is considering whether or not to accept that witness’s evidence. This must have been the case in the present matter.
[80] For this reason although the justification for a warning is not exhaustively provided by s 165(1), to my mind, careful reflection is necessary before accepting that evidence which falls outside any of the categories identified in the section should be the subject of a warning. Furthermore, if in a particular case the evidence of a witness is the subject of a warning, care should be exercised to ensure that evidence of another witness, whose evidence may be thought to have similar characteristics justifying a warning, is also made the subject of a similar warning. This is particularly the case if the witnesses are perceived to be separately favourable to the Crown or the defence. Unless this course is taken the potential for a warning to influence the jury is so great that the trial may become unfair.
 
Derbas / Rustrom
[2007] NSW CCA 118, 30.4.2007
Evidence Act 1995 (NSW) s.165 – murder – prison murder – admission made to prison employee conducting a survey – whether warning should have been given
Held appeal dismissed – not official questioning – not made to someone with interest in case – direction as to potential difficulties with evidence and importance of taking care sufficient in circumstances of case
 
Mitchell
[2008] NSW CCA 275, 21.11.08
Evidence Act 1995 (NSW) s.165(c) – aggravated sexual assault – evidence that complainant had drunk substantial quantities of alcohol – Whether warning should have been given.
Held: Appeal dismissed. No warning required. Intoxication of complainant not an issue; not raised in cross-examination. The question of whether, by reason of what the complainant had drunk, the complainant was in a condition such as to affect the reliability of his evidence was not a matter on which the court had knowledge and experience over and above that of the jurors.
Very different from Murphy [2000] NSWCCA 297 where there was substantial evidence that complainant was affected by alcohol in a way likely to impact on the reliability of her evidence, and could not even remember getting home after the events which were the subject of the complaint.
 
GAR (No. 3)
[2010] NSW CCA 165, 5.8.2010
Evidence Act 1995 (NSW) s.165 – robbery – Whether warning should have been given relating to alleged concoction between witnesses - bias or possible bias of child witness AR, in relation to A, his father – allegation of concoction between AR and his mother against A, his father – where a baton was used by the alleged offender - whether warning should have been given regarding unreliability of identification of baton by AR.
Held: Appeal dismissed. Bias put both to AR in cross-examination and to jury in addresses. Matter for common sense and experience of jury. Nothing in evidence itself which was “of a kind that may be unreliable”: see R v Clark [2001] NSWCCA 494; (2001) 123 A Crim R 506 at 547-549. Possibility of concoction does not necessarily render evidence “of a kind” for which a warning is necessary. If possibility of concoction and issues of credit were before the jury as a result of cross-examination and address of counsel, it is unnecessary for judge to warn separately, unless evidence is in a category that may be unreliable in the experience of the judge and not within the common experience of the community.
Identification of baton was not basis upon which A was identified with robbery. The baton (i.e. any baton), and its possession by A, was an added circumstance to other circumstances that identified A with robbery. It is not the particular description of the baton that is relevant; it is the fact that a baton, of any similar kind, was in possession of A at time of robbery. In those circumstances, a warning of the kind suggested as to the identification of the baton, was unnecessary
 
GAR (No. 2)
[2010] NSW CCA 164, 5.8.2010
Evidence Act 1995 (NSW) s.165(1)(d) – robbery – Whether “dangerous to convict” warning should have been given relating to evidence by ER, A’s former wife – ER’s involvement in offence could be only as accessory after fact or misprision of felony - where credibility and reliability of ER challenged at trial.
Held: Leave to argue this ground refused under r.4 no application under s .165 having been made at trial.
S. 165(1)(d) contains an “accomplice warning”, although it has been said that the word “accomplice” should not be used in any direction: R v Stewart at 329 [126]. Considerable doubt as to whether s.165(1)(d) extends to an accessory after the fact or to misprision of felony: R v Clark at 541-549 [53]. Any suggested criminal involvement of ER could only extend to these types of offences.
That a witness falls within the scope of s.165(1)(d) (which has not been demonstrated in this case) does not necessarily require a warning be given unless the evidence is of a kind that might be unreliable by reason of the witness falling within that category. Can it be said that any offence of which ER might have been convicted was one which would tempt her to exaggerate or fabricate evidence about the Appellant’s guilt?: R v Clark at 548 [69]-[70]. This is the type of direction which would be given to the jury if s.165(1)(d) was engaged at trial. The answer is negative.
Although a warning in terms of “dangerous to convict” may be given as part of a s.165 direction, a trial Judge is never under a duty to do so: Kanaan v R [2006] NSWCCA 109 at [217]; Robinson v R at 93 [8]. Spigelman CJ observed in Robinson v R at 95 [19], “dangerous to convict” fails to give sufficient weight to danger that a jury will regard the formulation as an instruction by the jury to acquit, so it is a formulation best avoided save in exceptional circumstances.
 
El Masri
[2010] NSWSC 1277, Hoeben J, 5.11.2010
Evidence Act 1995 (NSW) s 165 – murder – girlfriend of Accused gave statement to police after offence – subsequently gave induced and contradictory statement to police – refused to give evidence and went to Lebanon
Held: when considering requirement of reliability of statement under s.65(2)(d)(ii) trial judge commented that the warning under s.165(1)(d) as to the potential unreliability of accomplices does not apply to accessories after the fact
 
Chen
[2010] NSW CCA 224
Evidence Act 1995 (NSW) s 165 – TJ gave warning under s.165 as to evidence of person criminally involved in offence – extended comments that were “almost akin to giving (witness) a medal’
Held: although better than comments not made did not undermine effect of warning
 
Aouad and El-Zeyet
[2011] NSW CCA 61
Evidence Act 1995 (NSW) s 165 – murder – appellants convicted of shooting at service station – Crown relied heavily upon evidence of driver of car containing victim and four other witnesses – all witnesses involved in criminal activity – shooters and witnesses known to each other - driver of car initially claimed did not recognize shooters - given witness protection – other four witnesses given extensive indemnities – whether judge erred in directing jury could use evidence of one indemnified witness to provide support for another indemnified witness
Held: at [203]-[216] – no error in giving direction – no suggestion at trial any of the witnesses involved in the murder – difference between corroboration and independent support – in circumstances of case may require warnings as to possible unreliability of witnesses
 
Homsi; Karamalakis
[2011] NSW CCA 164
Evidence Act 1995 (NSW) s 165 – assault – hearsay evidence in statement by witness who was unavailable to give evidence at trial – impartial witness who happened to witness events – whether s 165 warning required.
Held: A warning was not required. s 165 is directed towards evidence in relation to which there is such reason to suspect unreliability that caution should be exercised in relation to it, over and above the ordinary scrutiny that should be exercised in relation to all evidence: at [89]. A warning is not required where, even though it falls with the ambit of s 165(1)(a), the evidence is not "of a kind that might be unreliable" (applying Clarke ), or where there are good reasons for not giving a warning (applying s 165(3)). If the accused denies making the statement relied upon by the Crown, the question of whether a s 165 warning is required will depend upon the nature of the attack made upon the evidence of the making of the disputed statement: R v Fowler [2003] NSWCCA 321; (2003) 151 A Crim R 166. The hearsay evidence was not unreliable in this case: R v TJF [2001] NSWCCA 127; (2001) 120 A Crim R 209.
 
Stojcevski
[2012] NSW CCA 27; 5.3.2012
Evidence Act 1995 (NSW) s 165 – whether trial judge erred in failing to warn the jury that the witness' evidence might be unreliable - whether trial judge erred in failing to provide reasons concerning s 165 jury direction – A argued TJ obliged to make a finding of fact whether, pursuant to s 165(1)(d), C was a witness who "might reasonably be supposed to be criminally concerned in the robbery - Crown's closing address suggested C could have been the robber, he may have been covering for someone else or A was the robber – whether TJ’s reasons for rejecting A’s request for s 165 warning inadequate.
Held: Appeal dismissed. (At [44)]: At issue was C’s credibility. It was put directly to him by trial counsel that he was not telling the truth. C insisted he was telling the truth. It was a matter for the jury to determine whether they accepted his evidence or not, and the Judge was not required to give any warning in relation to this very obvious and focused credibility issue. It is unnecessary to give a warning to a jury about the honesty of a witness, unless a witness falls into one of the categories mentioned in the section because, as a general rule, the trial judge has no advantage over a jury when it comes to the assessment of a witness' credibility based upon vagueness, inconsistency, motives to lie or demeanour: R v Fowler (2003) 151 A Crim R 166; [2003] NSWCCA 321. TJ properly rejected trial counsel's submission.
 
Vulovic (No.3)
[2012] NSWSC 211, Johnson J, 15.3.2012
Evidence Act 1995 (NSW) s 165 – murder – accused, deceased and Crown witness in room together – accused claims he was unconscious but did not kill victim – claims Crown witness must have killed victim – whether jury should be given unreliability warning under s.65(1)(d) (witness might reasonably be supposed to be involved in offence) and due to intoxication of witness
Held: application for warning refused
[15] Section 165 Evidence Act 1995 does not deal with unreliability of witnesses generally. Rather, the need for a warning typically arises either because the jury needs to be acquainted with the accumulated experience of courts dealing with certain types of evidence, or because there is a danger that the jury may over estimate the probative value of certain evidence: Baartman [2000] NSWCCA 298 at [62]; Stewart [2001] NSWCCA 260; 52 NSWLR 301 at 308 [38], 321-323 [95]-[101]; GAR (No. 2) [2010] NSWCCA 164 at [97].
[16] Whether the evidence in respect of which a request for a warning is made comes within one of the designated categories, will be a matter for the trial Judge to determine: Stewart at 320-321 [95].
Warning under s.165(1)(d) superfluous and confusing where defence case was that witness was the killer – warning as to effect or intoxication not necessary – effect of intoxication well known to jury
 
Ryan (No.2)
[2012] NSWSC 1034, SG Campbell J
Evidence Act 1995 (NSW) s.138 – manslaughter – victim killed in brawl outside hotel – Crown witness made signed statement to police indicating he found the victim after the assault – witness warned by senior police that he was not telling the truth, should consider the seriousness of the matter and advised as to the offence of concealing a serious offence – victim subsequently gave record of interview describing the assault – witness intoxicated at time of offence
Held: application by defence counsel for unreliability warning on basis of intoxication and inconsistent statements refused – jury well-equipped to make own judgment
 
RRS
[2013] NSWCCA 94
Evidence Act 1995 (NSW) s.165 – child sexual assault – evidence of complaint - delay between the mother of the complainants hearing complaint and providing police statement - where absence of corroboration - whether direction under s 165 Evidence Act 1995 required in circumstances in which the issue of the reliability of the complainants and their mother is directly in issue.
Held: No direction required under s 165. [83] In determining whether there is a basis for the contention that there was a failure to give a warning under s 165, it is necessary to have regard to the circumstances in which a warning under that provision may be required: R v Baartman [2000] NSWCCA 298
 
Wotherspoon
[2013] NSWSC 1730, 21.11.2013 (Latham J)
Evidence Act 1995 (NSW) s.165 - special hearing - found unfit to be tried - determined that A will not become fit during 12 months after finding of unfitness - Murder - alternative offence of robbery in company with the infliction of grievous bodily harm - Crown case depends upon A’s admissions - reliability of A’s admissions - reliability affected by A’s mental illness, drug abuse and delay between commission of offence and date of admissions - direction according to terms of s 165.
Held: Not satisfied beyond reasonable doubt as to reliability of A’s admissions. s 165 (1)(a) applies to all of A’s admissions against interest. It also applies to all of A’s admissions on the basis that their reliability may be affected by her psychiatric illness. These features taken together not sufficient to outweigh the misgivings occasioned by A’s psychiatric illness, her desire at one stage to be incarcerated for reasons unassociated with the commission of the offence and her retraction when she was informed that she would be charged.
Verdict: Not guilty of Murder and not guilty of the alternative offence of Robbery in company with the infliction of GBH
 

McGavin

[2014] NSWCCA 171

Evidence Act 1995 (NSW) s.165 - A charged with BES Agg – co-accused was his son -  son received discount of 25% for undertaking to provide evidence against A - Failure by son to fulfil undertaking would have provided grounds for resentencing: Criminal Appeal Act 1912, s 5DA - At trial, counsel for A questioned reliability of son's evidence because of discount -  however, prospect of resentencing if son failed to adhere to evidence was not raised with him -  No information proffered by prosecution or defence that quantified the discount - Warning that son's evidence may be unreliable, the trial judge mentioned the percentage of discount – But no reference to reduction in time that afforded or to possibility of resentencing - A did not request  further warning on unreliability under s 165 which included these details.

Whether warning on unreliability was insufficient because it failed to specify both the actual reduction in time the discount reflected and the possibility of resentencing son if he departed from undertaking.

Held: Appeal dismissed.

1. There is no unfairness to the applicant simply in failing to quantify the effect of a specific discount in circumstances where neither party called evidence, or even troubled the trial judge with the information, as to the sentence in question: [33] Privett [2001] NSWCCA 518; Sullivan [2003] NSWCCA 100 considered

2. The son was never asked at trial whether he feared resentencing if he failed to give evidence against the applicant. There was thus no testimonial basis at trial for the direction now being mooted on appeal: [42], [47]; Conway (2000) 98 FCR 204; Stewart (2001) 52 NSWLR 301; Clark (2001) 123 A Crim R 506 considered. Yammine & Chami (2002) 132 A Crim R 44 referred to.

 

P (restricted)

[2016] NSWCCA 44

Evidence Act 1995 (NSW) s.165 – Joint criminal trial for murder - Appellant convicted of murder of female acquaintance – not present at time of killing but alleged to have been involved through joint criminal enterprise – Crown case was that appellant was intermediary between her friend and her partner, both of whom were present and involved in killing of victim – also arranged payment from friend to herself and partner – Crown case primarily based on admissions made to another friend several weeks after killing - Trial judge erred in unexpectedly warning jury to approach evidence of appellant with care (unreliability warning under s.165) – appellant's evidence was unhelpful in case against her partner but he was granted separate trial – Crown did not rely upon evidence of appellant in relation to case against second co-accused – no request had been made for warning under s.165 –

Held - appeal allowed – new trial ordered - attempt to clarify warning did not undo the damage – Robinson (1991) 180 CLR 531 and Hargraves and Stoten (2011) 245 CLR 257 referred to

 

R v Rogerson; R v McNamara (No 17)

[2016] NSWSC 38

Evidence Act 1995 (NSW) s.165  - Witness pleaded guilty and sentenced to term of imprisonment – witness offered to assist police and made statement –   witness motivated to assist by prospect of a reduction in sentence – representations made to Governor of NSW for reduction in sentence based on the assistance given –witness gave evidence in accordance with his statement – no decision had been made as to a possible reduction in sentence as at the date on which he gave evidence – counsel for accused sought direction under s. 165 – Opposed by Crown.

Held:  Direction given.  There remains possibility some benefit will be derived. Although those circumstances do not fall within any of the categories of evidence in s. 165(1), they are such as to give rise to the possibility of witness' evidence being unreliable.

 

R v Qaumi (No.33)

[2016] NSWSC 676, Hamill J

Evidence Act 1995 (NSW) s.165 – murder – Crown relying upon 10-12 'roll over' witnesses – application for s.165 warning at end of evidence given by witness

Held: application granted – lengthy trial means warning given in summing up will come three months after evidence given – large number of roll over witnesses means one warning in summing up will dilute force of warning – importance of witnesses to crown case – will be accompanied by direction that jury should consider evidence of each witness in light of all Crown case, including evidence not yet led – also direction that warning does not mean should disregard evidence or might accept some elements of evidence and reject others

 

 
 
 
Section 165B: Warnings – Delay in Prosecution
 
GG
[2010] NSWCCA 230
Evidence Act 1995 (Cth) s.165B – transitional provisions Sch 2, Pt 3, cl 17 - old sexual assault offences - A submits TJ failed to give Longman (1989) 168 CLR 79 warning - Crown submits that Evidence Act 1995 s.165B (which commenced on 1 January 2009) applies due to transitional provisions – s.165B states that a TJ could, but was not obliged to, give a warning to the jury of the disadvantages to an accused person due to delay - Whether or not s 165B applied depends upon the meaning of “commencement of proceedings”.
Held: Appeal dismissed. Section 165B applies.
The effect of the new s 165B, is that for trials which commenced after 1 January 2009, even if a judge informs a jury that the accused has suffered a significant forensic disadvantage and the nature of that disadvantage in accordance with s 165B(2), the judge must not suggest to the jury that it would be dangerous or unsafe to convict solely because of the delay or because of any significant forensic disadvantage suffered because of the delay: at [53].
A was not arraigned prior to 1 January 2009. The hearing of A’s trial thus commenced after the commencement of s 165B.
Notwithstanding the unresolved question whether a trial commences on the first arraignment, the indictment having been presented at that time, or when the indictment is presented and the accused person arraigned in front of the jury, the authorities demonstrate that when legislation, such as the Evidence Act transitional provision cl 17, refers to “proceedings the hearing of which began before the commencement of the [provision or Act]”, the intended reference is to the hearing of the particular proceeding such as the trial itself.
The Criminal Procedure Act, Ch 3, Pt 3, Div 2 contains those provisions which govern the commencement of proceedings on indictment. By contrast, the Evidence Act is concerned with the evidence which is to be adduced at a particular hearing. When the Evidence Act transitional provision refers to a proceeding the hearing of which has commenced, it is referring to the hearing of a particular proceeding, in this case, a trial on indictment
 
Groundstroem
[2013] NSWCCA 237
Evidence Act 1995 (NSW) s.165B – historical sexual assault - husband (A) rapes wife (V) – V made complaint to A informally - delay in complaint to police - whether significant forensic disadvantage - lack of medical records of V in documenting the complaint - admissions of A to counsellor and the police - effect of delay rather than length important - counsel must apply with details of forensic disadvantage alleged.
Held: Appeal dismissed.
“[55] It will be seen from subsection 165B(5) that the section is the sole source of a judge's authority either to warn or inform the jury about any forensic disadvantage that a defendant or accused may have suffered because of delay. Of course, this would not prevent a judge from putting these matters to the jury as a part of the defence case if counsel had addressed the jury to that effect. Indeed, there would be a duty to do so.
[56] It also appears that the duty arises only on application (as here) by the appellant and thus that the particular significant forensic disadvantage must form part of that application. An accused's lawyers will have obtained instructions as to the issues in the case and, accordingly, be aware how delay had given rise to any particular forensic disadvantage. This is a matter peculiarly within the accused's knowledge or, perhaps more likely, that of his or her legal advisers. For example, if an important witness had died, it could very well seem that the inability to obtain his or her evidence would place the defence at a substantial disadvantage but, if the defence was aware that the witness' evidence would, say, have assisted the prosecution or not assisted the defence, it would not be proper for counsel to rely on the death for the purpose of seeking a warning. Of course, it may be that a judge might think it right to raise particular matters with counsel so that, if they might have been overlooked, the matter could be made right in the interests of a fair trial but I do not think that a trial judge has a duty, as it were, to second guess counsel.
57This conclusion is similar to that applying to a "request" for a warning under s 165 concerning unreliable evidence. Such a request "would involve counsel making the request identifying what the 'kind' of evidence was, why it was unreasonable, and what the terms of the warning requested were": Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521; (2007) 82 ALJR 250 per Heydon J at [232]
……………………………………..
 
[61] WSP [2005] NSWCCA 427. is therefore not authority for the proposition that, where an early informal complaint is made, the fact that there is a significant delay before the alleged offender is confronted with the complaints by the police is irrelevant. The significance of delay will plainly always be a matter of fact and degree and whether a warning should be given will depend upon whether a significant forensic disadvantage has been identified. If it has been identified then it is clear that the warning ought to be given, simply because it is or can be a very important factor to be taken into account when assessing the respective prosecution and defence cases and its importance may not be appreciated by the jury. The fundamental question is whether there has been a significant forensic disadvantage, which will depend on the nature of the complaint and the extent of the delay in the circumstances of the particular case. The extent of delay is not the test. Rather, it is the consequence of delay which is decisive. The focus on the length of delay has, I think, arisen because of the notion of presumptive prejudice, especially as to reliability of recollection, which was earlier regarded as giving rise to the need for a warning.
[62] Accordingly, the trial judge's dismissal of the significance of the delay in reporting the alleged misconduct to the police because the complainant immediately complained to the appellant about his misconduct is, with respect, an error of law. However, this does not dispose of the matter. As I explain below, the matters ultimately identified by the counsel for the appellant at trial did not identify any forensic disadvantage which could fairly be regarded as significant.”
[63] – [64]:No forensic disadvantage was found.
[65] Rule 4 was also applied.