Sections 166-end



Section 184:Accused May Admit Matters and Give Consents

(2002) 128 A Crim R 89; NSW CCA [59] 12.3.2002 
Evidence Act 1995 (NSW) s.184 - formal admission made to possession in relation to drug offence
Held: adopted Odgers - formal admission does not stop crown adducing evidence but do not need to - see also JGW NSW CCA [116] 23.6.1999                  


Section 189: The Voir Dire

NSW CCA 25.10.1996           
Evidence Act 1995 (NSW) s.189 - on appeal to District Court appellant sought voir dire on admissibility of ROI - appellant argued he was not given appropriate caution - became evident during voir dire that he was also denying making interview - issue was whether voir dire appropriate
Held: issue of caution made voir dire appropriate - did not decide whether voir dire appropriate to determine whether interview made - preliminary question under s.189 does not have to be decided prior to taking of evidence.                  

(1997) 96 A Crim R 432; NSWSC (Hidden J) 19.9.1997
Evidence Act 1995 (NSW) s.189(3) - murder - admissions made to cousin (a police officer) while in hospital.
Held: distinction between examination of reliability of confession for purpose of determining admissibility and question of whether it was made and if so weight to be given - second question does not intrude unless raised by accused - permitted to look at terms of confession itself in determining whether reliability affected.


Section 192: Leave, permission or direction may be given on terms

NSW CCA 1.4.1997
Evidence Act 1995 (NSW) s.38 - murder - juvenile - juvenile accomplice called to give evidence for Crown - claimed no memory of killing or statement made to police three days after killing - statement recorded on ERISP - leave granted to cross examine and ERISP tendered.
Held: no unfairness in granting crown leave to cross-examine own witness - appeal dismissed.                  

NSW CCA 10.6.1997
Evidence Act 1995 (NSW) s.192 - theft offence - application by Crown to cross-examine witness who had assisted appellant - witness claimed no memory - issue of whether 'unfavourable' requirement satisfied
Held: general consideration of exclusionary discretion available under s.192(2)(b)

(1998) 195 CLR 606; HCA [61] 30.9.1998
Evidence Act 1995 (NSW) s.192 - sexual offences - granting of leave under s.108
Held: exercise of discretion under s.108 depends on whether evidence of complaint made after long delay resolves question of witness' credibility - if not evidence is not important [s.192(2)(c)] and would add to length of hearing [s.192(2)(a)]

Cassar, Sleiman & Kalache [No.12]
NSWSC [352] Sperling J 15.4.1999
Evidence Act 1995 - s.192 - murder - evidence of Crown witness that he saw killing - cross-examined as to statements made to police that he had not seen anything - Crown sought to tender evidence of subsequent conversation with police officer where witness said he saw killing but was afraid for life.
Held: evidence admissible under s.108(3)(a) and (b) - need to consider s.192 leave - guidance from Gaudron, Gummow and Haynes JJ in Graham - statement which is merely repetition of witness' evidence in court is of low probative value and unlikely to assist in resolving truthfulness or otherwise of witness' statement - mere repetition does not make story unlikely to be fabricated - this especially applies to ordinary statement made to police - in circumstances of this case statement probative and admissible

Stanoevski v The Queen
(2001) 202 CLR 115; HCA 8.2.2001
Evidence Act 1995 (NSW) s.192 - solicitor convicted of conspiracy to defraud - in response to appellant's evidence of good character Crown permitted to cross examine on report provided to Law Society as to allegation appellant had forged client's signature in prior, unrelated, Family Court matter - cross-examination took up considerable amount of time.
Held: appeal allowed - Judge erred in granting leave to cross examine pursuant to s.112 of Act without considering s.192(2) - Gaudron, Kirby and Callinan JJ suggested cross examination unfairly prejudicial and probably should not have been allowed.

NSW CCA [270] 17.7.2001
Evidence Act 1995 (NSW) s.192 - murder - appellant sought ruling on whether crown could cross examine on certain matters if good character raised - judge considered s.137 but not s.192.
Held: appeal allowed - despite overlap between the two sections s.192 has broader discretion - judge erred in not considering it separately - not sufficient to just consider s.137.

NSW CCA [292] 3.8.2001
Evidence Act 1995 (NSW) s.192 - maliciously inflict gbh - crown granted leave to cross-examine female crown witness and her mother - subsequent cross-examination wide ranging and unfettered.
Held: appeal allowed - s.192 applies to application under s 38.

Esho & Sako
NSW CCA [415] 23.10.2001
Evidence Act 1995 (NSW) s.192 - malicious wounding - involved in fatal assault of off duty police officer outside hotel - Crown given leave to cross-examine unfavourable witness
Held: Judge erred in deciding that once witness found unfavourable pursuant to s.38 no basis for refusing leave - Judge failed to consider s.192(2) - no miscarriage in circumstances of case

NSW CCA [330] 16.11.2001
Evidence Act 1995 (NSW) s.38 - malicious inflict gbh - failure to consider s.192
Held: Stanoevski does not mean failure to mention s.192 means automatic error - must consider whether consideration of s.192 would make any difference - no miscarriage if no effect

NSWSC [60] (O'Keefe J) 12.2.2002
Evidence Act 1995 (NSW) s.192 - application under s.38
Held: 'is to take into account' means obliged to take into account

NSW CCA [104] 5.4.2002
Evidence Act 1995 (NSW) s.192 - sexual offences - admission of prior inconsistent statement under s.108
Held: although judge did not specifically refer to s 192 he did consider all relevant issues

(2002) 54 NSWLR 474;(2002) 130 A Crim R 44; NSW CCA [186] 29.5.2002
Evidence Act 1995 (NSW) s.192 - drug offences - Crown granted leave to cross-examine accused's girlfriend - at trial claimed drugs belonged to her - conflicted with statement to police - failure to consider s.137 and s.192 provisions
Held: consideration of s.137 and s.192 provisions mandatory - nothing in reasons to suggest judge did consider them - no miscarriage because leave would still have been granted

Reardon, Michaels, Taylor
NSW CCA [203] 4.6.2002
Evidence Act 1995 (NSW) s.192 - conspiracy to import commercial quantity of cocaine - leave granted to cross-examine under s.38
Held: failure to refer to s.192 not of itself an error of law - do not need to expressly refer to s.192 in every case - should be assumed judge has considered s.192 unless shown otherwise

Yammine & Chami
(2002) 132 A Crim R 44; NSW CCA [289] 23.7.2002
Evidence Act 1995 (NSW) s.192 - supply prohibited drug - detain for advantage - AOABH - leave granted for witness to refresh memory under s.32
Held: failure to mention s 192 before granting leave under s 32 did not show relevant matters not considered - nor should consideration of s192(2) properly have led TJ to refuse to grant the leave under s.32 in this case - appeal allowed on other grounds

(2003) 140 A Crim R 63; NSW CCA [64] 21.3.2003
Evidence Act 1995 s.192 - armed robbery - cross-examination of co-offender by Crown under s.38
Held: cross examination permissible under s 38, 137 and 192 - no miscarriage of justice.

NSW CCA [194] 7.11.2003
Evidence Act 1995 (NSW) s.192(2)(b) - murder - whether leave should be granted pursuant to s 38 where witness does not recall circumstances of making statement to police - whether 'unfairness' with which s 192(2)(b) is concerned includes inability to test out of court assertions made by witness
Held: no unfairness to accused pursuant to s192(2)(b) - leave properly granted pursuant to s.38

NSW CCA [321] 11.11.2003
Evidence Act 1995 (NSW) 192 - murder - granting of leave under s.38 - failure to consider s.192
Held: error does not establish miscarriage of justice where show judge could not have reasonably refused leave
NSW CCA [354] 7.11.2005
Evidence Act1995 (NSW) s.192 - Indecent assault - evidence of complaint admitted under s.108(3)(b) - failure of trial judge to refer to s.192
Held: [19] per Simpson J
"The essence of the complaint made about his Honour's approach to the admission of the evidence of all three witnesses on this issue was that he failed to take into account the considerations itemised in s192. Reliance was placed upon the decision of the High Court in Stanoevski [2001] HCA 4; 202 CLR 115. Stanoevski is often cited in this Court as authority for the proposition that failure of a trial judge expressly to advert to the five sub-paragraphs of s192(2) indicates error... The proposition is stated far too widely: see Reardon, Michaels and Taylor [2002] NSWCCA 203 at [30]; Esho [2001] NSWCCA 415 at [91]; Stevens [2001] NSWCCA 330 at [52]. It is the obligation of counsel to draw to the attention of the court any of the s192 considerations that are relevant in the particular case, and the obligation of the court to take into account those (if any) that bear upon the particular matter."
NSW CCA [396] 8.12.2005
Evidence Act1995 (NSW) s.192 - Sexual offences against step daughter - evidence of poem written by complainant containing reference to sexual assault admitted pursuant to s.108(3)(b)
Held: absence of express reference to s.192 does not necessarily constitute error - Reardon and Selsby




Part 1 Definitions


NSW CCA 17.9.1998
Evidence Act 1995 (NSW) - supply drugs - told police money found in his car was takings from his hotel - later denied knowledge of money and statement - if true statement was advantageous to accused - if false it was contrary to his interests.
Held: admission under Act.                  

(1998) 45 NSWLR 426; NSW CCA 2.11.1998
Evidence Act 1995 (NSW) - whether meaning of 'admission' under s.424A Crimes Act same as under Evidence Act.
Held: Evidence Act provides meaning for admission under s.424A - definition includes 'any form of representation, whether by conduct or by oral or written statement, so long as it is adverse to the (maker's) interest in the outcome of the proceedings' - includes both exculpatory and inculpatory statements.

(1999) 105 A Crim R 27
Evidence Act 1995 (NSW)
Held: followed Horton - statement that appears exculpatory on its face may be an admission where relied upon as constituting an implied admission of guilt.

(1999) 103 A Crim R 142
Evidence Act 1995 (Cth) - conspiracy to pervert course of justice - agreed to be shot by motorcycle gang as punishment for indiscretion - lied to police about shooting saying it was accidental.
Held: followed Horton and Esposito - statement to police were admissions.

[2005] NSWCCA 291
Evidence Act 1995 (NSW) – sexual offences – search warrant executed at home of 17y suspect – police indicated would like to talk to suspect – caution given in presence of older brother – some time later suspect posed for photograph to be used for identification outside house

Held: posing for photograph did not constitute admission


"probative value"

[2004] NSW CCA 233, 14.7.2004
Evidence Act 1995 (NSW) - sexual offences against young girl - forced complainant to act as prostitute - issue at trial was admissibility of evidence of complainant's prior sexual experience under s.105 Criminal Procedure Act - appellant sought to have admitted evidence that complainant had voluntarily worked as prostitute - TJ declined to admit evidence after finding it unconvincing, odd, lacking in connection with reality and inconsistent with other evidence
Held: allowing appeal (per James J and Sully J, Hulme J dissenting on this point) - 'probative value' as required under s.105(4) Criminal Procedure Act not defined in Act - legitimate to go to definition of 'probative value' in Evidence Act - in considering probative value must make assessment on assumption evidence is accepted - TJ erred in declining to admit evidence after making his own assessment of credibility and strength of evidence - if accepted evidence would have had considerable probative value

Evidence Regulation

[2000] 117 A Crim R 176; NSW CCA [372] 9.11.2000
Evidence Regulation 1995 reg 6 - sexual offences - Crown led evidence of uncharged sexual acts - notice failed to comply with regulations - failed to identify evidence to be called and give other details.

Held: tendency evidence not properly admitted as notice given by Crown to defence was defective and did not comply with reg 6 for first or second trial - notice did not identify evidence which would be called by Crown, nor provide information required to be provided - no application by Crown to dispense with notice under s.100.