R v Flood

[1999] NSWCCA 198

NSW Court of Criminal Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Unreliable evidence
4. › Warning under s 165 Evidence Act 1995
5. › Evidence affected by ill health or mental disability
6. › Whether trial judge erred in declining to give warning
7. › Whether factual finding or question of law
8. › Evidence Act 1995 (NSW), s 165(1)(c), (2), (3)
1. Criminal Law
2. › Evidence
3. › Unreliable evidence
4. › Good reasons for not giving warning
5. › Whether detailed directions in summing-up constitute good reasons under s 165(3)
6. › Discretionary power of trial judge
7. › Evidence Act 1995 (NSW), s 165(3)
1. Criminal Law
2. › Directions
3. › Summing-up
4. › Expression of opinion by trial judge
5. › Whether jury must be directed to disregard judge's opinion unless it accords with their own
6. › Sufficiency of direction that jury are sole judges of fact
1. Criminal Law
2. › Directions
3. › Evidence of complaint
4. › Whether trial judge required to direct on use to which complaint evidence may be put

Quick Take

A trial judge's finding that evidence is not unreliable under s 165(1)(c) of the Evidence Act 1995 is a finding of fact, not law, and a wrong finding of fact does not constitute a 'wrong decision on any question of law' under s 6(1) of the Criminal Appeal Act 1912. Alternatively, where the reliability of a single witness is the kernel of the Crown case, detailed directions on reliability in the summing-up (rather than incantation of the s 165(2) formula) are capable of constituting 'good reasons' under s 165(3) for not giving the statutory warning.