Part 4.2: Judicial Notice
Section 141: Criminal Proceedings: Standard of
Hannes v DPP (Cth)
 NSW CCA 373Evidence 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 doubtHeld: 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
Section 144: Matters of common knowledge
(1999) 109 A Crim R
348; NSW CCA  26.11.1999Evidence 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.
MasonNSW CCA  22.3.2000Evidence 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 schizophreniaHeld: judge not permitted to introduce into
reasons for sentencing views that may be based upon private experiences or judicial experience.
DPP NSWSC  7.9.2005Evidence 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
Part 4.4: Corroboration
Section 164: Corroboration requirements
Lane v The QueenFed.Ct 16.5.1996Evidence
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.
NSW CCA 21.6.1996Evidence Act 1995 (NSW) s.164 - accomplice
directionsHeld: common law directions become academic since
Part 4.5: Warnings
Section 165: Warnings
Lane v The Queen
(1996) 89 A Crim R 393
NSW CCA  2.9.2002
(2002) 133 A Crim R 206; NSW CCA  6.9.2002
 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:  Privett  NSWCCA 518; Sullivan  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: , ; 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.
 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)
 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)
 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