CHAPTER 4: PROOF

Part 4.2: Judicial Notice

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.

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

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

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