Final submission to the nsw law reform commissions. It is, in the terms of s 55, evidence that could rationally affect directly or indirectly the assessment of the probability that the accused committed the offences charged. Applying for bail in nsw go to court criminal lawyers. Refer to evidence the prosecution has, however, led evidence that the defendant has prior convictions or other evidence as to character. This is a compilation of the evidence act 1995 that shows the text of the law as amended and in force on 1 may 2016 the compilation date. There is discretion whether or not to give a good character direction having evaluated the probative value. Character reference template court character reference. Directions in relation to the onus and standard of proof are perhaps. Tkwj v the queen 2002 212 clr 124 at 35 gleeson cj, and 94 mchugh j. Evidence of good character of the accused goes to the fact in issue of guilt may be taken into account by judgejury. Witnesses may also introduce physical evidence such as weapons, drugs, fingerprints and so on.
This includes evidence given by an accused at an earlier trial. This section has information to help you when you go to court for a minor criminal offence. Bench book for children giving evidence in australian courts. Evidence and proof in civil proceedings legalpedia qld. Uniform evidence resources judicial college victoria. Updated february 2015 australasian institute of judicial. Understanding and using character evidence in federal court. After becoming suspicious that the theft had occurred, the employer searched for and took samples of oil from the employees vehicle without the employees authority in order to have it tested. Witnesses are rarely called to give evidence in sentence hearings. Bench book download the entire 2020 bench book in pdf format by clicking here or download individual chapters in pdf format by clicking on the chapter titles below. Both of these cases being sexual assault cases where the tendency relied upon was that the accused had a sexual interest in the complainant. However, only a small minority escape a conviction being recorded and a punishment being imposed. The situation in relation to entrapment has been changed so far as state offences in new south wales are concerned by the law enforcement controlled. In australia there are nsw laws and commonwealth laws.
Health professional councils bench book first draft. Display results with all search words % end of search results. There is no statutory definition of character evidence, but a generally. Legal aid nsw notes that the character test provisions of the migration act 1958. At trial, her employer was found to have breached their duty of care. The judicial commission of nsw maintains the criminal trial. We also stock notes on evidence and criminal procedure as well as law notes generally. Coincidence evidence is a form of circumstantial evidence and will usually form part of the circumstantial case together with other evidence that may indirectly prove the guilt of the accused. It was found that the failure to provide evidence in support of the application could give rise to a finding of no reasonable prospect of success. Evidence relevant to credibility may include character evidence of a witness, evidence. We consider that further changes to the character test are not an appropriate response to antisocial behaviour by young migrants. Evidence 25 admissions 1 character evidence 1 circumstantial 1 competence 1 complaint 4 confession 5 corroboration 2 course of conduct 1 creditibility 3 crossexamination 1. Directions about character evidence are directions about the evidence in the trial relevant to the matters in issue.
Defending yourself against a charge of being armed with intent in nsw. In all the states including new south wales a character reference can help the court to understand a bit more about you as a person and may help you to receive a lesser penalty. Character acknowledgments character acknowledgments are another type. Character evidence nc superior court judges benchbook. A read is counted each time someone views a publication summary such as the title, abstract, and list of authors, clicks on a figure, or views or downloads the fulltext. The benchbook is fully searchable, both with fulltext and expert search options, has menus and breadcrumb trail for easy navigation and orientation and. Administration, aboriginal cultural awareness benchbook for western australian courts 2004. Two cases that are set out below that demonstrate the rationale or reasoning behind tendency and coincidence evidence are. There is no statutory definition of character evidence, but a generally accepted description of it was given by kirby j in melbourne v the queen 1999 198 clr 1 although in dissent, the description is favourably regarded by the authors of the new law of evidence 2nd edn, at p 470. A crime occurs when a person breaks a law and commits an offence against the community in general o r against a particular victim. Sexual assault matters to consider when preparing and. In most cases, evidence is provided by witnesses who can tell the court what they saw or heard or in some cases, smelt or touched.
Evidence which goes to the ultimate issue is not inadmissible for that reason see s 80 of the evidence act 1995 nsw. In this benchbook we describe the kinds of water cases in which hydrologic models often appear, why use of these models are often essential, how the models are constructed including their data requirements and various means, both technical and legal, of assessing the models. Evidence of bad character only goes to negativing the good character evidence, not to prove guilt. An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who. Once the evidence is admitted, it may be used as evidence of a complaint see langbein v r 2008 nswcca 38. Essentially, an expert gives opinion based on facts, and as such must prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based see. R v mm 2014 nswcca 144 and versi peter v r 2014 nswcca 206. If the court is not concerned about any of these issues, or if the court thinks the concerns can be addressed by imposing conditions on your bail, then the court must give you bail. Reinforcing the nsw governments commitment to victims of crime with the victims rights and support act 20. The nsw pdo also believes that there is a contradiction within the commissions proposal, asking. The legal structure of propensity evidence david hamer, 2016. Responsible minister attorney general, and minister for the prevention of domestic violence authorisation this version of the legislation is compiled and maintained in a database of legislation by the parliamentary counsels office and published on the nsw legislation website, and is certified as the form of that legislation that is correct under section 45c of the interpretation act 1987. A practitioners guide to representing sex offenders. Walker v mittagong sands pty limited ta cowra quartz 2010 fwa 9440 thatcher c, 8 december 2010 the employee was accused of stealing oil from the employer.
Section 89 of the evidence act 1995 nsw for nsw preevidence act common law decisions on this issue see r v towers nswcca 7693 unrep bc9303842 and r v tolmie nswcca 2893 unrep. Section 253 of the crimes act 1900 deals with the offence of forgery. The notes at the end of this compilation the endnotes include information about amending laws and the amendment history of provisions of the compiled law. Any other character trait of a witness is inadmissible. Similarly, walsh ja said at 451 and 452 that in deciding whether the applicant was of. In nsw, intimidation or stalking carries a maximum penalty of 5 years imprisonment andor a fine of 50 penalty units.
New south wales law reform commission and the australian law reform. We have discovered that a well drafted court character reference can have an impact upon the sentence that is imposed by the court. Implications for nsw criminal law 2014 31 international journal for. This decision was not concerned with domestic and family violence but is relevant in relation to the admission of expert evidence in cases involving domestic and family violence. Nsw requiring other misconduct to be proved beyond. New south wales joined the nras as a co regulatory jurisdiction. We admit what essentially is character evidence by labelling it otherwise, engaging sometimes. Practitioners guide to criminal law law society of nsw. Criminal trial courts bench book judicial commission of. We believe that a court character reference must paint a picture of the character of the person it is written about. Dismissing an application unfair dismissals benchbook. Child development, childrens evidence and communicating with. As to the nature of evidence of character and the duty of a judge to address the jury on the issue. If this was your first offence, you will have a good opportunity to have the matter dealt with by way of a section 10.
Trafficking dangerous drugs qld go to court lawyers. Work on the 2010 edition of the evidence benchbook was overseen by an editorial advisory committee facilitated by mji. Whilst it is not a trivial offence, magistrates will be open to a section 10 argument. These included that there was no exploitation of the complainants age and no evidence of grooming or preying on the victim. Bail benchbook 2019 14 the character, antecedents, associations, home environment, employment and background of the defendant. Consider checking the judicial commission local courts bench book. An exception is if the accused pleaded guilty and the prosecution and defence didnt agree on all the facts of the case to provide to the sentencing judge. Alrc report 102 nswlrc report 112 vlrc final report uniform. Character references nsw a character reference is a letter written by a person who knows you and can tell the court about your good character. The evidence act has made substantial changes to the law of evidence in new south wales.
Intentionally or recklessly destroy damage property ly. The relevance and admissibility of character evidence, as well as the. Lengthy submissions were made for the plea in mitigation. Since 1 august 20, the law relating to evidence that police can gather.
Supreme and district courts criminal directions benchbook. Defending yourself against a charge of being armed with. Propensity evidence reform tc beirne school of law. Supreme and district courts criminal directions benchbook the links in each benchbook entry link to a copy of the judgment on either the supreme court library website or, for reported cases, to the relevant subscription service. Inquiry into migrant settlement outcomes legal aid nsw. Such evidence may be used as direct or circumstantial proof of an offence festa v r 2001 208 clr 593. In nsw, according to the bail act 20, bail is the authority to be at liberty for an offence or an alleged offence. Covering judicial administration, criminal procedure, evidence, and civil matters, the nc superior court judges benchbook serves as the judges primary reference tool, on and off the bench. Benchbooks are also published on more narrow technical areas of law that may come before the judge, e.
We also stock notes on litigation 2 evidence law as well as law notes generally. Where it makes an express provision different from the common law, it is the language of the statute which determines the issue in question, and the meaning and effect. Compellability of certain witnesses in criminal proceedings1. Commission of new south wales, criminal trial courts bench book bench. Courts bench book see in particular 2000 4000 and lexisnexis a looseleaf. Reinforcing the nsw governments commitment to victims of crime with the victims. The links in each benchbook entry link to a copy of the judgment on either the supreme court library website or, for reported cases, to the relevant subscription service. Evidence can also be given through oral statements testimony made at court by witnesses.
Sentencing information package nsw sentencing council. Legal aid nsw welcomes the opportunity to respond to the inquiry into migrant settlement outcomes by the joint standing committee on migration. Deportation is not a suitable response to juvenile offending. Bad character of defendant 166 explanation of contents 166 general introduction and directions 167 distinguishing between evidence of misconduct and evidence which has to do with the offence charged 169 1 important explanatory evidence 172 2 evidence relevant to an important matter in issue between. The maximum penalty for this is 25 years imprisonment for a schedule 1 drug, and 20 years imprisonment for a schedule 2 drug. At the end of the 19th century in makin v attorneygeneral for new south wales. An example of positive identification evidence is picture identification evidence, as defined under s115 of the evidence act 2008. Benchbooks are used in conjunction with manuals on civil procedure, criminal procedure, and evidence to assist the judge in trial. Notice of right to be represented during bargaining. Armstrong legal have accredited specialists in criminal law, family law and contested wills and estates.
If you are of good character you are a person who contributes to the community. The relevance and admissibility of character evidence, as well as the need for a direction and the content of that direction, depend on whether the evidence is of the accuseds good character or bad character. The report and some excellent character references were tendered. School of government, the university of north carolina at chapel hill, jessica smith ed.
Evidence of good character is not merely evidence as to credit. Evidence of a previous representation will only be admissible if it is relevant. There are a number of rules of evidence which have been established to ensure fairness in the trial process and to ensure that the best evidence is admitted. Some common criminal trial directions in new south wales. A practitioners guide to representing sex offenders patrick sheehan forensic psychologist managing director, big picture psychology pty ltd mpsychol clinhons, maps, cfp will tuckey barrister samuel griffith chambers ballb hons i, llm legal aid nsw criminal law conference dockside, cockle bay wharf, darling harbour 2 july 2015. Writing an effective character reference is easy when you follow these rules. If this happens, the odpp prosecutor might ask a witness to give evidence on what are called the disputed facts only. Supreme court of new south wales nswsc 1993austliisupreme court of new south wales court of appeal nswca 1997austliisupreme court of new south wales court of criminal appeal nswcca 1998austliichief industrial magistrates court of new south wales nswcimc 1999austliicompensation court of new south wales nswcc 19852003 austlii.
Sentencing the office of the director of public prosecutions. An evidencebased approach legal aid nsw suggests that the committee take an evidencebased approach to. Evidence of tendency, coincidence, credibility and character. Nc superior court judges benchbook unc school of government. As should be apparent to you, the accused is charged only with the offences stated in the indictment. In reality, this is not an appeal but an original hearing. This exception only permits evidence on the witness character for truthfulness or untruthfulness. Prior to the introduction of the evidence act nsw 1995, whether or not evidence amounted to corroboration was the subject of debate. As to evidence of the character of the accused in criminal proceedings. Accused reliance on an erisp interview where the accused relies upon an erisp interview or other out of court statement.
In this decision, by a 43 split, the high court held that close similarity between events is not essential for tendency evidence to be admissible. Intimidation or stalking charges, penalties, sentencing. Institute of judicial administration, aboriginal cultural awareness benchbook for. It says that if you are found guilty of making a fake document, such as a passport, drivers licence or other forms of identification, you could face harsh penalties under the law.
The original content of this benchbook was a chapter in the former michigan circuit court benchbook, which was revised in 2009 and divided into three separate benchbooks. Section 89 1a of the evidence act 1995 nsw prohibits subject to section 89a the drawing of an inference against an accused for failing to answer one or more questions or b respond to a representation. This feedback has been carefully considered, and it was concluded, that the bench book should be in a new format, which would supplement the new adult court pronouncement cards. There is discretion whether or not to give a good character. Where possible, you should also try to obtain a few character references. New south wales courts have adopted the practice of holding all court appearance by phone or video conference, except where there are exceptional. It can be spoken evidence, or in the form of a document or object.
The plaintiff was injured after falling down the stairs at work and sued her employer for negligence. Bench book for children giving evidence in australian courts updated feb 2015 the australasian institute of judicial administration 2015 bench book for children giving evidence in australian courts update february 2015. West v hitrans express tas nsw logistics pty ltd, pr974807 airc, hamberger sdp. In this submission, i respond to most of the questions posed by the new south wales law 1reform commission nswlrc in its recent consultation paper regarding s. A benchbook is not a source of substantive law but rather a guide to procedure.
The third exception to the rule is evidence of the character of any witness. Evidence introduction judicial commission of new south wales. Hughes v the queen 2017 hca 20 a significant decision for the development of evidence law in victoria. New south wales national domestic and family violence.
Trial directions for the local court advocate criminal cpd. Although the term corroboration is not used in the evidence act, it is still useful to refer to the cases about corroboration because there is often a need to determine whether evidence is supportive of the. Since the last adult court bench book was updated in 2008, the jsb has received considerable feedback from magistrates on its content and format. What is the penalty for intentionally or recklessly destroy damage property. Therefore, when such preliminary questions are at issue. Australian law reform commission, new south wales law reform. Defending the character evidence prohibition by upholding a non character theory of logical relevance, the doctrine of chances.
The judicial commission of new south wales for its assistance with research materials for the writing of the bench book, and for access to materials on its website, including the sexual assault handbook, equality before the law bench book and the new south wales criminal trial courts bench book. The decision can be made by a police officer after you have been arrested and given a notice to attend court. Crown cannot lead evidence that the accused is violent or lights fires etc. We have retained complainant to maintain consistency across the bench book. It is the role of the courts to interpret and apply statutes, whether they are acts of parliament of the solomon islands or acts of parliament of the united kingdom.
714 443 75 1382 228 441 719 318 1208 292 168 435 210 742 797 699 293 1125 831 1378 518 672 305 850 1190 1151 468 112 641 910 1405 1129 18 202 250 1308 975