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R v Helps

R v Helps

Case [2016] SASCFC 154 23 December 2016

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SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HELPS
[2016] SASCFC 154
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Peek and The Honourable Justice Lovell)
23 December 2016
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - OTHER CASES
EVIDENCE - ADMISSIBILITY - ADMISSIONS - INFORMAL ADMISSIONS - SELF-SERVING STATEMENTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL COUNTS
Appeal against conviction. The appellant was found guilty of ten offences against his step-daughter, CN, after a trial by Judge alone: three counts of unlawful sexual intercourse with a person under the age of 14 years, four counts of aggravated indecent assault, one count of gross indecency, one count of unlawful sexual intercourse and one count of aggravated assault. That offending was alleged to have taken place between 2005 and 2009 when the complainant was aged between 11 and 15 years. CN complained of the offending for the first time in 2014.
Subsequent to the hearing of this appeal, the appellant sought permission to amend his notice of appeal to add new grounds of appeal relating to apparently fresh evidence.
Whether the Judge erred in not allowing the appellant to lead evidence of the record of interview as part of the defence case. Whether the verdicts are unreasonable, unsafe and against the weight of the evidence. Whether the Judge erred in not directing himself as to the use, if any, made of the evidence in respect of each count on the other counts. Whether a miscarriage of justice occurred as a result of the prosecution’s failure to disclose to the defence the fact that a potential witness had been spoken to by the police.
Held per Kelly J (Peek and Lovell JJ agreeing) (allowing the appeal):
1.       Given the failure by the prosecution to disclose that Mrs Mansfield had been spoken to by the police, it cannot be said that a miscarriage of justice has not occurred.
Held per Kelly J (Lovell J agreeing):
2.       The Judge was entitled to take the view that the appellant’s interview with the police was inadmissible at the instance of the defence case.
3.       The Judge did not err by not properly applying the burden of proof in his analysis of the defence evidence. There is no error in the passages of the Judge’s reasons impugned by the appellant.
4.       The verdicts are not unsafe and unsatisfactory. The Judge’s assessment of the complainant’s veracity and reliability was central to the conclusion he reached. It is plain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Helps

Details

AGLC: R v Helps [2016] SASCFC 154
Case: [2016] SASCFC 154
Decision Date: 23 December 2016

CaseChat Overview and Summary

This case concerned an appeal by Craig Stewart Helps against convictions for various offences, including unlawful sexual intercourse with a person under 14, aggravated indecent assault, gross indecency, and aggravated assault, against the complainant, CN. The charges arose from allegations of sexual activity and assault spanning several years, commencing when CN was approximately 10 years old. The appellant had acted in a parental role towards CN and her brother. The complainant eventually left home and later made a complaint to the police, leading to the appellant's arrest and interview.

The legal issues before the court included whether the trial judge erred in failing to direct himself on the use of evidence relating to uncharged conduct in relation to the charged offences, and whether a miscarriage of justice had occurred due to the non-disclosure of the appellant's recorded police interview. The appellant also sought to introduce fresh evidence on appeal.

The court found that while the trial judge had provided extensive directions regarding the use of evidence of uncharged conduct, which were considered sufficient in the context of the case, the failure to disclose the recorded police interview constituted a miscarriage of justice. The court reasoned that the appellant's denial of the allegations in that interview was material and its non-disclosure deprived the defence of a significant opportunity to challenge the prosecution's case. Consequently, the court allowed the appeal on this ground.

The court quashed the convictions and remitted the matter to the District Court for retrial. The court deemed it unnecessary to consider the grounds relating to fresh evidence, given the finding of a miscarriage of justice.

Orders

Orders of the court

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Background

Background to the litigation

Some months after the hearing of this appeal, the appellant sought permission to amend his notice of appeal and add additional grounds of appeal relating to apparently fresh evidence. That permission was granted and on 9 December 2016 the Court received and heard further evidence, and submissions by counsel.Background In order to give context to the complaints made on appeal it is necessary to set out the evidence led in respect to each charge. The complainant, CN, was born in 1995. Her parents separated when she was about five years of age and CN’s mother, DT, formed a relationship with the appellant not long after. The appellant undertook the role of father to CN and her brother WN. They lived at various addresses over time, eventually moving to Blanchetown. The appellant formed a good relationship with both CN and WN. The relationship between CN and DT was fraught with difficulty. At trial there was no dispute that DT showed the complainant limited love and affection. CN said that the appellant first initiated sexual contact with her when she was about 10 years old and it eventually became a regular and ongoing part of their relationship. Often the sexual contact took the form of hugs which were given the code name “big hugs” involving the appellant lying on his back while CN straddled him so that their genitals touched. CN gave evidence that there was one occasion of oral sex (count 1), two occasions of vaginal sex (counts 2 and 9), and one occasion when the appellant attempted to have anal sex with CN (count 3). In addition, CN said there were four other instances when the appellant touched her indecently by touching her underwear (count 4), by rubbing his penis on her body (count 5), by kissing her on the mouth (count 7) and by rubbing his penis on her body (count 8). CN described one other act of gross indecency (count 6) when the appellant rubbed his penis in her presence. The last charge (count 10) was an occasion when CN said the appellant followed her to a bus stop and slapped her across the face. Eventually, at the age of 15, CN ran away from home and went to live with her adult sister before moving in with J, her boyfriend and current partner at time of trial. At trial, the complainant was 20 years old and had an infant child. There was evidence that she complained to her partner J after he had enquired about a night of disturbed sleeping when she had a nightmare and had said words to the effect of “no Craig stop it”. Later she went to the police. On 31 August 2014 police went to the home of the appellant and DT in Blanchetown and interviewed him in relation to the allegations made by CN. At trial CN gave evidence. J was called to give evidence of the complaint made by CN to him. The prosecutor declined to tender the video recording between the police and the appellant on 31 August 2014. At the commencement of the defence case, the appellant asked the Judge to request that the prosecution tender the record of interview. The Judge did not do so and, acting on the submission of the prosecutor and the concession made by the appellant’s then counsel, ruled that the interview was inadmissible as part of the defence case.

Evidence

Evidence Before The Court

Having completed my own independent review of the evidence I have no misgivings about the verdicts. I would grant permission to appeal on, but dismiss this ground of appeal.Ground 6: Directions as to use of evidence on each count on other counts The final complaint made by the appellant can be dealt with briefly. The appellant complains that the Judge did not direct himself as to what use, if any, could be made of the evidence on each count in relation to the findings of guilt on the other counts. In making this complaint the appellant relied on this Court’s decision in R v Keyte.[7] In that case Doyle CJ, in the course of discussing the obligations of a trial judge to give reasons, held that on the facts of that case the trial Judge was required to give reasons as to whether and how use had been made of the evidence of uncharged acts in relation to the charged acts.[8] [7] (2000) 78 SASR 68.[8] R v Keyte (2000) 78 SASR 68 at 80. In this case, the Judge gave himself extensive directions about the use of the uncharged conduct and how that evidence was used:[21]The prosecution case was that the charged events were specific occasions of offending that the complainant could identify and remember by reference to other events and dates, but that unlawful sexual contact was an ongoing feature of the relationship between the accused and the complainant over several years. [22]Evidence was led without objection as to the whole course of events during which it is alleged the charged offences occurred, and in doing so reference was made to ongoing and in that respect uncharged sexual offending. [23]As no objection was taken to the evidence it was unnecessary to formally consider the application of section 34P of the Evidence Act 1929 which addresses the admissibility of evidence amounting to discreditable conduct. In the court’s view the evidence was in any event plainly admissible and the permissible use of the evidence substantially outweighed any prejudicial effect. [24]The evidence was necessary to explain the nature of the relationship between the accused and the complainant, put it and the alleged offending into context, and to explain why the complainant might react to, comply with and even initiate the sexual conduct that occurred between the accused and the complainant on the charged occasions. The evidence must not be used for any other purpose, and the court does not use it for any other purpose. [25]In particular, the court must not reason that by virtue of any uncharged offending that the accused is or may be guilty of any of the charged offences, nor that because of any uncharged conduct the accused is of bad character or a bad person and for that or any related reason is or may be guilty of the charged offences. Nor should the court reason that by way of any uncharged conduct that the accused is either more likely to have committed any of the charged offences or had any kind of propensity to commit the charged offences.(footnotes omitted)

Decision

Reasons for decision

KELLY J PEEK J

In my view, the failure to disclose the material has led to a miscarriage of justice. I would allow the appeal on this ground. It is unnecessary for me to consider the “fresh evidence” raised in grounds 8 and 9.Conclusion Given the failure to disclose, it cannot be said that a miscarriage of justice has not occurred. I would allow the appeal. I would quash the convictions and remit the matter to the District Court for retrial. Appeal against convictions.Introduction The appellant was tried by a District Court Judge sitting alone for three counts of unlawful sexual intercourse with a person under the age of 14 years, four counts of aggravated indecent assault, one count of gross indecency, one count of unlawful sexual intercourse, and one count of aggravated assault. The complainant, who is to be referred to as CN, was born in April 1995 and was 20 years old at the time of trial. Her mother, who is to be referred to as DT, is the appellant’s current partner. CN’s natural father and DT separated when she was about five years old. DT retained custody of her and her younger brother, who was born in August 1996 and is to be referred to as WN. After CN’s parents separated, DT and the appellant formed a relationship and DT, CN and WN moved into the appellant’s house in Ottoway. The appellant readily undertook the role of step-father to the two children, who both called him “Dad” (as distinct from “Father”) from the outset, and they formed a good relationship. On the other hand, the relationship between CN and DT was beset with conflict. CN eventually ran away from home at the age of 15, initially living with her adult sister and later with her natural father for a time. She later moved in with her current partner JG and they had a child together. On an occasion when JG asked CN about her disturbed sleeping, she said to him that she had had a sexual relationship with the appellant up to when she had left home. Around the same time, she placed a post on her Facebook page referring to the appellant as a paedophile and later made a complaint to police alleging years of sexual activity that forms the basis of the charged offences. On 31 August 2014, the appellant was interviewed by police in his home in Blanchetown, and denied the detailed allegations that were put to him. This interview was recorded aurally and visually. He was arrested and taken to the Nuriootpa police station, where he was charged.The Information The amended Information appears as follows:First Count Statement of OffenceUnlawful Sexual Intercourse with a Person Under 14. (Section 49(1) of the Criminal Law Consolidation Act, 1935). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with [CN], a child under the age of 14 years, by causing [CN] to perform fellatio upon him. Second Count Statement of OffenceUnlawful Sexual Intercourse with a Person Under 14. (Ibid). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with [CN], a child under the age of 14 years, by inserting his penis into her vagina. Third Count Statement of OffenceUnlawful Sexual Intercourse with a Person under 14. (Ibid). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2008 at Kurralta Park, had sexual intercourse with [CN] a child under the age of 14 years, by inserting his penis into her anus. Fourth Count Statement of OffenceAggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935) Particulars of OffenceCraig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2009 at Mannum, indecently assaulted [CN], a person under the age of 14 years, by touching her underwear. It is further alleged that Craig Stewart helps committed the offence knowing that ([CN]) was, at the time of the offence, a child of whom he had custody as a parent or guardian. Fifth Count Statement of OffenceAggravated Indecent Assault. (Ibid). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2005 and the 1st day of January 2009 at Kurralta Park, indecently assaulted [CN], a person under the age of 14 years, by rubbing his penis on her body. It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian. Sixth Count Statement of OffenceGross Indecency. (Section 58 of the Criminal Law Consolidation Act, 1935). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2007 and the 1st day of September 2009 at Kurralta Park, committed an act of gross indecency in the presence of [CN], being a person under the age of 13 years, by rubbing his penis in her presence. Seventh Count Statement of OffenceAggravated Indecent Assault. (Section 56 of the Criminal Law Consolidation Act, 1935). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2008 and the 1st day of January 2011 at Blanchetown, indecently assaulted [CN], a person of the age of 13 or 14 years, by kissing her on the mouth.It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian. Eighth CountStatement of OffenceAggravated Indecent Assault. (Ibid). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2008 and the 1st day of January 2011 at Blanchetown, indecently assaulted [CN], a person of the age of 13 or 14 years by rubbing his penis on her body. It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian. Ninth Count Statement of OffenceUnlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2008 and the 1st of January 2011 at Blanchetown, had sexual intercourse with [CN], a child under the age of 17 years, by inserting his penis into her vagina. Tenth Count Statement of OffenceAggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act, 1935). Particulars of OffenceCraig Stewart Helps between the 31st day of December 2009 and the 1st of January 2011 at Blanchetown, assaulted [CN]. It is further alleged that Craig Stewart Helps committed the offence knowing that [CN] was, at the time of the offence, a child of whom he had custody as a parent or guardian.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J, PEEK J

Full text does not contain this section.

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Citations

R v Helps [2016] SASCFC 154

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R v Hosseini [2019] SADC 69

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Citation 5 (Para 1)

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Citation 7 (Para 36)

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Hargraves v The Queen [2011] HCA 44
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Citation 14

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R v King [2009] NZCA 607
Citation 16

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Barry v Police [2009] SASC 295
Citation 17 (Para 15)

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Citation 18

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Mahmood v Western Australia [2008] HCA 1
Citation 19 (Para 21)

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R v H, ML [2006] SASC 240
Citation 20 (Para 24)

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Mallard v The Queen [2005] HCA 68
Citation 21 (Para 1)

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Flowers v The Queen [2005] NTCCA 5
Citation 22

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R v Collie [2005] SASC 148
Citation 23 (Para 24)

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R v Debs & Roberts [2005] VSCA 66
Citation 24 (Para 6)

…ablished: R v Ireland (1970) 126 CLR 321, 331 (Barwick, CJ) (with whom the other members of the Court agreed); R v Gibb and McKenzie [1983] 2 VR 155, 166; R v Levidis [1991] 2 VR 179, 182; R v Appleby (1996) 88 A Crim R 456, 488; R v McKellin (unreported, Court of Appeal, 19 December 1997) (Phillips, CJ and…
Peck v The State of Western Australia [2005] WASCA 20
Citation 25

…er v Coulthard [2011] WASC 139; M v The Queen (1994) 181 CLR 487; Middleton v The Queen (1998) 19 WAR 179; Peck v Western Australia [2005] WASCA 20; R v Beck [1990] 1 Qd R 30; R v Haycock [1989] 2 Qd R 56; R v Ireland (1970) 126 CLR 321; R v Kochnieff (1987) 33 A Crim R 1; R v Kotzmann [1999] 2 VR 123; R v Newsome…
Subramaniam v The Queen [2004] HCA 51
Citation 26

…rdson v The Queen (1974) 131 CLR 116; Selig v Hayes (1989) 52 SASR 169; Spence v Demasi (1988) 48 SASR 536; Subramaniam v The Queen (2004) 79 ALJR 116; The Queen v C (1992) 8 CRNZ 546; The Queen v G (Unreported, Supreme Court of South Australia, Cox, Olsson and Mullighan JJ, No 5019, 4 April 1995); The Queen v J, JA…
McCarrol v The Queen [2004] WASCA 131
Citation 27

…ssa J, No 592, 7 April 1988); Liberato v The Queen (1985) 159 CLR 507; Mahmood v The Queen (2008) 232 CLR 397; McCarrol v The Queen [2004] WASCA 131; McKenzie v Police [2015] SASC 78; Minister for Immigration, Local Government & Ethnic Affairs v Taveli (1990) 23 FCR 162; Mule v The Queen (2005) 79 ALJR 1573; R v Ap…
Assafiri v Horne [2004] WASCA 40
Citation 28

…scussed. Abnett v Korber (Unreported, Supreme Court of South Australia, von Doussa J, No 9363, 17 September 1986); Assafiri v Horne [2004] WASCA 40; Flowers v The Queen (2005) 153 A Crim R 110; Hawker v Coulthard [2011] WASC 139; M v The Queen (1994) 181 CLR 487; Middleton v The Queen (1998) 19 WAR 179; Peck v Wes…
R v Soma [2003] HCA 13
Citation 29 (Para 2)

…ision of the High Court in Soma to enunciate any rule of law or practice which is inconsistent with any of the principles enunciated in Barry . [4] (2003) 212 CLR 299.…
Dyers v The Queen [2002] HCA 45
Citation 30

…ed. Azzi v the Queen [2013] NSWCCA 249; Barry v Police (2009) 197 A Crim R 445; Donaldson v Police [1963] NZLR 750; Dyers v The Queen (2002) 210 CLR 285; Gilham v The Queen [2012] NSWCCA 131; Gonzales v Folkestone Magistrate’s Court [2010] EWHC 3428 (Admin); Gordon v The Queen [2010] UKPC 18; Hargraves v The Queen (2…
Grey v The Queen [2001] HCA 65
Citation 31 (Para 1)

…re has resulted in a miscarriage of justice.[10] It is not to be determined by the law relating to the reception of fresh evidence.[11] [10] Grey v R (2001) 184 ALR 593; Mallard v The Queen (2005) 224 CLR 125. [11] R v Drummond (No 2) [2015] SASCFC 82.…
Middleton v the Queen P76/2000 [2001] HCATrans 546
Citation 32

…rs v The Queen (2005) 153 A Crim R 110; Hawker v Coulthard [2011] WASC 139; M v The Queen (1994) 181 CLR 487; Middleton v The Queen (1998) 19 WAR 179; Peck v Western Australia [2005] WASCA 20; R v Beck [1990] 1 Qd R 30; R v Haycock [1989] 2 Qd R 56; R v Ireland (1970) 126 CLR 321; R v Kochnieff (1987) 33 A Crim R 1;…
Willis v The Queen [2001] WASCA 296
Citation 33

…] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Whitehorn v The Queen (1983) 152 CLR 657; Willis v The Queen (2001) 25 WAR 217, considered.…
R v Anderson [2000] VSCA 16
Citation 34

…; R v Brady [2015] SASCFC 183; R v SCD [2013] QCA 352; R v Storey (1968) 52 Cr App R 334; R v Su, Katsuno, Asami and Honda [1997] 1 VR 1; R v Thatcher [1969] 1 WLR 227; R v Wogandt (1983) 33 A Crim R 31; R v Zorad (1990) 19 NSWLR 91; Robinson v The Queen (1991) 180 CLR 531; S v The Queen (2002) 132 A Crim…
Robinson v The Queen [1999] HCA 42
Citation 35

…997] 1 VR 1; R v Thatcher [1969] 1 WLR 227; R v Wogandt (1983) 33 A Crim R 31; R v Zorad (1990) 19 NSWLR 91; Robinson v The Queen (1991) 180 CLR 531; S v The Queen (2002) 132 A Crim R 326; The Queen v J (No 2) [1998] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Whitehorn v The Queen (1983) 152 CLR…
R v Kotzmann [1999] VSCA 27
Citation 36 (Para 6)

…a real chance (or a chance that was fairly open to him) of being acquitted, there has been a miscarriage of justice.” In R v Kotzmann [1999] 2 VR 123, a decision of the Victorian Court of Criminal Appeal, Batt J (with whom Phillips CJ and Callaway J agreed) stated at 157 [114]: “Mr Tehan argued that, even…
R. v. Hilsley [1998] VSCA 143
Citation 37

…d (1990) 19 NSWLR 91; Robinson v The Queen (1991) 180 CLR 531; S v The Queen (2002) 132 A Crim R 326; The Queen v J (No 2) [1998] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Whitehorn v The Queen (1983) 152 CLR 657; Willis v The Queen (2001) 25 WAR 217, considered.…
M v the Queen [1994] HCA 63
Citation 38 (Para 5)

…appeal 3, 4 and 5). I find that ground 6 of appeal is not established. Since there may be a re-trial, I think it inappropriate to say any more. [206] (1994) 181 CLR 487.…
Robinson v The Queen [1991] HCA 38
Citation 39

…o, Asami and Honda [1997] 1 VR 1; R v Thatcher [1969] 1 WLR 227; R v Wogandt (1983) 33 A Crim R 31; R v Zorad (1990) 19 NSWLR 91; Robinson v The Queen (1991) 180 CLR 531; S v The Queen (2002) 132 A Crim R 326; The Queen v J (No 2) [1998] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Whitehorn v The Queen (1…
Taveli v Minister for Immigration, Local Government and Ethnic Affairs [1989] FCA 175
Citation 40

…The Queen [2004] WASCA 131; McKenzie v Police [2015] SASC 78; Minister for Immigration, Local Government & Ethnic Affairs v Taveli (1990) 23 FCR 162; Mule v The Queen (2005) 79 ALJR 1573; R v Apostilides (1984) 154 CLR 563; R v Aziz [1996] 1 AC 41; R v Callaghan [1994] 2 Qd R 300; R v Coats [1932] NZLR 401; R v Don…
Liberato v The Queen [1985] HCA 66
Citation 41

…245 CLR 257; Harris v Mill (Unreported, Supreme Court of South Australia, von Doussa J, No 592, 7 April 1988); Liberato v The Queen (1985) 159 CLR 507; Mahmood v The Queen (2008) 232 CLR 397; McCarrol v The Queen [2004] WASCA 131; McKenzie v Police [2015] SASC 78; Minister for Immigration, Local Government & Ethnic A…
R v Apostilides [1984] HCA 38
Citation 42 (Para 23)

…r’s duty as explained in R v Apostilides [218] although the High Court in that case was dealing only with competent or compellable witnesses. [218] (1984) 154 CLR 563…
Whitehorn v the Queen [1983] HCA 42
Citation 43

…Crim R 326; The Queen v J (No 2) [1998] 3 VR 602; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Whitehorn v The Queen (1983) 152 CLR 657; Willis v The Queen (2001) 25 WAR 217, considered.…
Richardson v The Queen [1974] HCA 19
Citation 44

…9] NZCA 607; R v Li (2003) 140 A Crim R 288; R v McCarthy (1980) 71 Cr App R 142; R v McKay [1967] NZLR 139; Richardson v The Queen (1974) 131 CLR 116; Selig v Hayes (1989) 52 SASR 169; Spence v Demasi (1988) 48 SASR 536; Subramaniam v The Queen (2004) 79 ALJR 116; The Queen v C (1992) 8 CRNZ 546; The Queen v G (Unre…
R v Ireland [1970] HCA 21
Citation 45 (Para 6)

…would also hold in the alternative that the aggregate of grounds 1, 3, 4 and 5 together establish a miscarriage of justice.[207] [207] In R v Ireland (1970) 126 CLR 321, 331, Barwick, CJ stated: “Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justificatio…
Jack v Smail [1905] HCA 25
Citation 46 (Para 24)

…goes in as an exception to the hearsay rule. The jury is entitled to treat the various parts of it as being of differing weight: Jack v Smail (1905) 2 CLR 684, 695; Mule v The Queen (2005) 79 ALJR 1573; Spence v Demasi (1988) 48 SASR 536, 540; R v Collie (2005) 91 SASR 339; Duncan (1981) 73 Cr App R 359. The exculp…
Gordon v R. (Belize) [2010] UKPC 18
Citation 47

…LR 285; Gilham v The Queen [2012] NSWCCA 131; Gonzales v Folkestone Magistrate’s Court [2010] EWHC 3428 (Admin); Gordon v The Queen [2010] UKPC 18; Hargraves v The Queen (2011) 245 CLR 257; Harris v Mill (Unreported, Supreme Court of South Australia, von Doussa J, No 592, 7 April 1988); Liberato v The Queen (1985…
[1996] AC 41 [1996] AC 41
Citation 48 (Para 14)

…the reaction of the accused to the allegations. A jury is given the direction that exculpatory statements themselves are not evidence. [209] R v Aziz [1996] AC 41, 51.…
172 ER 565 172 ER 565
Citation 49

…eported, Supreme Court of South Australia, Nyland, Mohr and Debelle JJ, No 4743, 24 August 1994); R v Higgins (1829) 3 Car & P 603 [172 ER 565]; R v Keevers (Unreported, Supreme Court of New South Wales, Hunt CJ at CL, Carruthers and Bruce JJ, 26 July 1994); R v Keyte (2000) 78 SASR 68; R v King [2009] NZCA 6…
[1963] NZLR 750 [1963] NZLR 750
Citation 50

…Grey V r (2001) 184 ALR 593, applied. Azzi v the Queen [2013] NSWCCA 249; Barry v Police (2009) 197 A Crim R 445; Donaldson v Police [1963] NZLR 750; Dyers v The Queen (2002) 210 CLR 285; Gilham v The Queen [2012] NSWCCA 131; Gonzales v Folkestone Magistrate’s Court [2010] EWHC 3428 (Admin); Gordon v The Queen [2…

Legislation Cited

Evidence Act 1929 (SA) 34M
2 mentions (from Para 25)
Crimes Act 1958 (Vic)
1 mention (from Para 6)
Criminal Law Consolidation Act 1935 (SA) 353(1)
1 mention (from Para 10)
Evidence Act 1995 (Cth) 60
1 mention
Statutes Amendment (Evidence and Procedure) Act 2008 (SA)
1 mention
Statutes Amendment (Recording of Interviews) Act 1995 (SA)
1 mention