Applicability of Criminal Act 1900(NSW) and Evidence Act 1995(NSW) on the case study

This document discusses the applicability of Criminal Act 1900(NSW) and Evidence Act 1995(NSW) on a case study involving assault and robbery. It explores the regulations and provisions related to wounding, assault, and robbery. The case study involves the conviction of Morgho and Ruprecht for assault and robbery of Zolt, who was found unconscious with a large bruise on his head and missing money. The document analyzes the relevant sections of the Acts and presents the evidence presented in the case.

Running head: Evidence Law
Evidence Law
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Evidence Law
“Applicability of Criminal Act 1900(NSW) and Evidence Act 1995(NSW) on the case study “
Issue
The issue pertains to whether Morgho and Ruprecht can be convicted because the evidence was
wrongly admitted for prosecution. They have been convicted of assault and robbery of Zolt. He
was found lying unconscious in a park in Lismore which was three blocks east of his flat [55].
He had a large bruise over his head and his hair was matted with blood. He was taken to the
hospital by two ambulance workers Tim and Todd. Upon gaining unconsciousness, he
complained to the police that two notes of $50 each were missing from his wallet. He also
mentioned that they were taped together in four places [90-95].
Lawrence who worked at a liquor market at Alstonville told the police that he came across two
people who had come with this torn note to buy Carlton Dry. The prosecution also called two bar
staff from Central Lismore Tavern along with five other witnesses who identified Morgho and
Ruprecht to be hanging around Tavern and eyeing on people in a deceiving manner.
It also presented the attested public documents which claimed that in 1998 Ruprecht was
convicted for armed robbery in a wine store. He was also convicted for assault on account of
coward punching of a stranger from behind in a pub fight.
The police also found four empty cans of Carlton Dry in a kitchen bin of the flat shared by
Morgho and Ruprech.
As a result, both of them were accused of robbery and assault [100-110].
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Regulations
As per section 33(1) Wounding or grievous bodily harm with intent of Crimes Act 1900(NSW)
1states that a person who wounds or causes grievous bodily harm to any person is guilty of an
offense2 . The maximum penalty is imprisonment of 25 years, in this case3.
4Section 35 Reckless grievous bodily harm or wounding of Crimes Act 1900(NSW) states that if
a person along with others cause grievous bodily harm to another person and carelessly causes
actual bodily harm to the victim or any other person, then he is culpable of an offense5. He shall
be imprisoned for a maximum period of 14 years6.
Section 59 Assault occasioning actual bodily harm of the Crimes Act 1900(NSW)7 states that an
attack causing actual damage to the body describes the circumstances in which the action of one
1 Crimes Act 1900 No 40 NSW Legislation
2 New South Wales Consolidated Acts , CRIMES ACT 1900 - SECT 33 Wounding or grievous bodily harm with
intent(n.d.) < http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s33.html >
3, Rex v Wood and M'Mahon(1830) 1 Mood CC 278
4 New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 35 Reckless grievous bodily harm or
wounding(n.d.)< http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s35.html>
5 R. v. Smith (1837) NSWSupC 26
6 R v Wilson (1984) AC 242
7 Sydney Criminal Lawyers, Section 59 Crimes Act 1900: Assault Occasioning Actual Bodily Harm(2019)<
https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/assault-occasioning-abh/>
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Evidence Law
person causes another to fear unlawful violence8 . It leads to psychological and physical injuries
such as bruises and scratches which is more than trivial injuries9 .
In such a case, the victim should not permit the accused person to cause bodily harm or touch
him. It shall also comprise of the situations where there is no physical harm. The accused causes
fear for the personal safety to the victim. The alleged can threaten to hurt him thereby leading
him to develop depression and anxiety10.
Section 59 of the Crimes Act 1900((NSW) states that the penalty is an imprisonment for five
years. In cases where there was a group of people or an involvement of other person, the penalty
is imprisonment for seven years11.
In this particular case, Zolt who was a male aged 66 years had been found lying unconscious in a
park which was three blocks east to his flat. It is a case of careless grievous bodily harm or
wounding, wounding or grievous bodily harm with intent, common assault and assault
8 Moriarty v Brookes (1834) EWHC J79 (Exch)
9 New South Wales Government, Crimes Act 1900 No 40(n.d.)<
https://www.legislation.nsw.gov.au/#/view/act/1900/40/part3/div6/sec35>
10 Reg v M'Loughlin (1838) 8 C & P 635
11 New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 59 (n.d.)<
http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s59.html>
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Evidence Law
occasioning actual bodily harm as there was a large bruise on the back of the head of Zolt with
his hair matted with blood [65].
Common assault is amongst the most frequently prosecuted offenses. Section 61 of the Crimes
Act 1900 (NSW) describes common assault. A common assault is a kind of careless or deliberate
behavior which causes unlawful personal violence and fear to the other person12 .
Generally, it refers to touching the other person without his permission. It may also include
conduct not involving personal contact. It may comprise of serious threats to the other person,
thereby causing fear for his safety.
As per Crimes Act 1900 (NSW)of New South Wales, common assault consists of actions
described as the slightest touch which would otherwise not be considered as a common assault
until there is a substantial degree of application of force. The evidence relating to threats of
violence shall also constitute common assault.
Furthermore, punching, kicking or hitting the other person without even causing bodily harm
shall also constitute common assault. It also constitutes spitting upon another person along with
threating to hurt him.
Section 61 Common assault prosecuted by indictment states that the guilty person assaulting the
other person, though not posing actual bodily harm shall be captivated for a period of two years13
.
12 Sydney Criminal Lawyers, Section 61 Crimes Act 1900: Common Assault (2019)<
https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/common-assault/>
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Robbery can be defined as a hybrid offense as it comprises of components of stealing and
assault. A person is said to have committed a robbery if he steals something which does not
belong to him. It can also cause fear for unlawful personal violence in the other person14.
The incidences may comprise of treating the other person by punching him and stealing his
wallet. As per Section 94 of the Crimes Act 1900 (NSW) if a person is accused of robbery, then
he can be imprisoned for a maximum period of 14 years15.
Moreover, it is a clear incidence of robbery as after gaining consciousness, Zolt realized that one
hundred dollars were missing from his purse. It was further confirmed by Lawrence who told the
police that almost four weeks ago; two of his customers came to the store to buy two slabs of
beer-Carlton Dry at which he was working [100].
They had this tapped $50 note which he had to decline because of the store policy. He also told
about their appearance to the police. According to him, both of them were ugly looking people.
One of them was a white fellow and the other looked like a Japanese or Indonesian.
13 Nyman Gibson Miralis, The Offence of Common Assault Explained (2019)< https://ngm.com.au/the-offence-of-
common-assault-explained/>
14 New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 94 (n.d.)<
http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s94.html>
15 Sydney Criminal Lawyers, Section 94 Crimes Act 1900: Robbery(2019)<
https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/robbery/ >
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The above description stated the resemblance of the individuals with Ruprecht and Morgho who
had criminal records for petty theft and assault. They were committed to trial by the judge and
charged by police [140].
Furthermore,16 section 55 Relevant evidence of Evidence Act 1995(NSW)17, states that the
evidence in a proceeding is appropriate if it can logically affect the evaluation of the possibility
of the fact in an issue and is accepted directly or indirectly as held in Smith v R18.
It is to be noted here that the evidence is not to be considered irrelevant on the basis of
admissibility of another proof, a reliability of the witness or failure in presenting the evidence as
held in Meade v R19 .
In this regard, 20section 55 shows the reliability of the evidence presented by Lawrence and the
two bar staff members along with five other witnesses who had identified themselves as
customers at Tavern. All of them made the same statements under the oath stating that both
Ruprecht and Morgho had been found hanging around Tavern. They kept a dodgy eye on people
coming on their way to Tavern [160].
16 Australian Government , Evidence Act 1995(n.d.)< https://www.legislation.gov.au/Details/C2016C00605 >
17 NSW Legislation
18 Smith v R (2001) 206 CLR 650
19 Meade v R (2015) VSCA 171
20 New South Wales Consolidated Acts, EVIDENCE ACT 1995(n.d.)<
http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/>
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21Section 57 Provisional relevance of Evidence Act 1995(NSW)22 states that in the context of
determining the question related to the relevance of evidence produced by the party, it is entirely
dependent upon the court to make findings related to it23.
The court may find relevance in the case where it is reasonable to make the findings at the initial
stage. Furthermore, its relevance can be determined at a later stage when further evidence is
being admitted to make the findings24.
Moreover, if the relevance of the evidence is dependent upon the findings that the person along
with others was acting in continuance of a mutual purpose, then the court may use it in
determining that the existence of a common purpose25.
Here the court may determine the findings related to the evidence produced by the prosecution. It
is clearly evident from the statement made by Lawrence that both Ruprecht and Morgho came to
the store for buying Carlton Dry around the date when Zolt was hurt and hospitalized [155].
As per the description is given by him, their behavior was very violent. They also got really dirty
about it when Lawrence told them that it is against the policy of the store to accept the damaged
currency.
21 Judicial College of Victoria, s 57 – Provisional relevance(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27291.htm>
22 Jackson v TCN Channel 9 Pty Ltd (2002) NSWSC 1229
23 R v Watt (2000) NSWCCA 37
24 ACCC v Leahy Petroleum (2007) 160 FCR 321
25 Australian Securities & Investments Commission v Rich (2005) NSWSC 417
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Later on, the prosecution submitted the certified copies of public records which attested that in
the year 1998, Ruprecht was convicted of armed robbery of a wine store. In the year 2015,
Morgho was convicted of an assault of coward punching from the back of a stranger in a pub
brawl [165].
It was also informed by the prosecution to the court that four empty beer cans of Carlton Dry
were found in the kitchen bin of a flat shared by Morgho and Ruprecht[170].
26Subsection 2A of Section 59 The hearsay rule –exclusion of hearsay evidence 27of Evidence Act
1995(NSW) states that for the purpose of determining the relevance of hearsay evidence that a
fact was intended to be asserted by a person with the help of representation, the court may refer
to situations in which the representation was made as held in R v Hannes 28.
Here at the beginning of a trail, when Lawrence could not be contacted, Constable Grieg testified
herself by reading the statements given by Lawrence. She told the court that he seemed to be
very certain about the faces and the notes observed by him. He was sure about what the words
said by those people and the date at which this incidence occurred [155].
26 Judicial Commission of New South Wales, Hearsay: The hearsay rule — Pt 3.2 Div 1 (ss 59–61)(2018)
<https://www.judcom.nsw.gov.au/publications/benchbks/civil/hearsay.html>
27 Australian Federal Police v Zhang & Anor (Ruling No 2) (2015) VSC 437
28 R v Hannes (2000) 158 FLR 359
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So, in this case the court may refer to the situations in which the third party made the
representation 29 .
30Section 62 (2) Restrictions to First Hand Hearsay of the Evidence Act 1995(NSW)31 states that
a person should personally know the asserted fact and it should be based on the what he
overheard or observed and it should be other than a representation which was made by another
person32.
Furthermore, the two bar staff and five other witnesses reinstated the statements told by
Lawrence that they had often seen Ruprecht and Morgho often hanging around Tavern and
observing people in a deceitful way. So, in this case, the court should consider the
representations made by witnesses about the asserted facts [160].
These are representations made by another person’s which are distinct from those made by
Lawrence. Moreover, these are based upon what they heard or perceived about the asserted
facts33 .
29 IMM v R (2016) 257 CLR 300
30 Judicial College of Victoria ,s 62 – Restriction to ‘first-hand’ hearsay(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27299.htm >
31 Bannon v The Queen (1995) 185 CLR 1
32 Lee v The Queen (1998) 195 CLR 594
33 R v Adams (1957) Crim LR 365
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34Section 65 Exception: criminal proceedings if maker not available states that criminal
proceedings can be applied if the person who has made earlier representations is not available for
presenting the proofs regarding the asserted facts35 .
There is no applicability of the hearsay rule regarding the evidence of an earlier representation
presented by an individual who heard, perceived or saw it. Provided it was made under an
obligation to make it or it was made subsequent to the occurrence of the asserted fact36.
It should be made under such situations which make the reliability of the situation highly
possible37 . The evidence presented by the prosecution, Lawrence, staff members and five other
witnesses initiates criminal proceedings due to the absence of Lawrence at the commencement of
the trial against Ruprecht and Morgho[145].
Application
Hence the applicable sections, in this case, can be summarized as under. Both Ruprecht and
Morgho are guilty of causing wounds or serious bodily harm with an intention as per section
33(1) of Crimes Act 1900(NSW). The other sections applicable under this case are section 35
34 Judicial College of Victoria, s 65 – Exception: criminal proceedings if maker not available(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27302.htm>
35 Williams v R (2000) FCA 1868
36 R v Polkinghorne (1999) NSWSC 704
37 Sio v R (2016) 259 CLR 47
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Reckless grievous bodily harm or wounding38, section 59 Assault occasioning actual bodily
harm39 , section 61 Common assault and section 94 Robbery.
Thus they are guilty of robbing the hundred dollar note from Zolt. Furthermore, they have also
caused common assault and bodily harm to him with the intention to rob him as per the Crimes
Act 1900(NSW).
They can also be convicted as per the provisions of Evidence Act 1995(NSW). As per section
5540 relevant evidence of robbery is admissible against them41 . The evidence which was
presented by Lawrence stated that both Ruprecht and Morgho came to his store around the time
when the incidence occurred.
They had come for a purchase of two slabs of beer named as Carlton Dry. They looked ugly and
their behavior was very violent towards him when he declined to accept the damaged none of
$50.
38 Streeton Lawyers, Recklessly Cause Grievous Bodily Harm Or Wounding (2019)<
http://www.streetoncriminallawyers.com.au/criminal-law/assault-violence/recklessly-cause-grievous-bodily-harm-
or-wounding/>
39 Fagan v Commissioner of Police for the Metropolis (1969) 1 Q.B. 439
40 Judicial College of Victoria, s 55 – Relevant evidence(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27289.htm>
41 Green v R (2015) VSCA 279
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Later on, two employees of the bar along with five more eyewitnesses reaffirmed the same
statement that they had seen both of them wandering around Central Lismore Tavern with a
dodgy observation of the people walking around them.
In this context,42section 57 states that it is dependent upon the court to make the findings related
to the relevance of evidence presented by the parties. So, the court can also determine the
validity of the questions associated with the relevance of the evidence produced by the parties.
43Subsection 2A of Section 59 the Hearsay rule-Exclusion of hearsay evidence of Evidence Act
1995(NSW)44 is also applicable in this case. When the trail started, Lawrence could not be found,
so Constable Greig had to testify herself as a witness45.
So, as per section 5946, the court has to determine the validity of the statements made by her
along with two bar employees and eyewitnesses in relation to the asserted facts of the case.
47Section 62 and 65 of the Evidence Act 1995(NSW) are also applicable in this case. Section
62(2) states that the representation made by another person must be based on the facts perceived
42 Judicial College of Victoria, Part 3.1 – Relevance (ss 55 – 58) (2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27288.htm>
43 Judicial College of Victoria, s 59 – The hearsay rule: exclusion of hearsay evidence (2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27295.htm>
44 Azizi v R (2012)VSCA 205
45 Gaio v R (1960) 104 CLR 419
46 DPP v BB (2010) 29 VR 110
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or heard by him48. So, in this case, the evidence were produced by the prosecution in relation to
the documents stating the conviction of Ruprecht due to an armed robbery of a liquor store in
1998 along with the arrest of Morgho due to an assault of a stranger in a pub fight[165].
Furthermore, four empty cans of Carlton Dry were also found in the kitchen bin of a flat shared
by both of them. Hence all the evidence presented by the parties is admissible in this case [170].
As per section 65 of the Evidence Act 1995(NSW), the court shall initiate the criminal
proceedings against the accused if the person who made the earlier representation is absent49. The
appeal made by Morgho and Ruprecht on the grounds of the wrong admissibility of evidence by
the prosecution should be dismissed by the court.
Conclusion
Hence to conclude, it can be said that Morgho and Ruprecht have been rightly convicted of
assault and robbery. Their appeal regarding the wrong admission of evidence by the prosecution
should be dismissed. They should be imprisoned as per the relevant provisions of the law stated
47 Australian Government: Australian Law Reform Commission, The Hearsay Rule — First-hand and More Remote
Hearsay Exceptions(2018)< https://www.alrc.gov.au/>
48 Baker v The Queen (2012) 245 CLR 632
49 Tasmania v Dolega (2016) TASSC 65
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BIBLIOGRAPHY
A Articles/Books/Reports
B Cases
Rex v Wood and M'Mahon(1830) 1 Mood CC 278
Rex v Beckett (1836) 1 Mood & R 526
R. v. Smith (1837) NSWSupC 26
R v Wilson (1984) AC 242
Moriarty v Brookes (1834) EWHC J79 (Exch)
Reg v M'Loughlin (1838) 8 C & P 635
Smith v R (2001) 206 CLR 650; [2001] HCA 50
Meade v R (2015) VSCA 171
Jackson v TCN Channel 9 Pty Ltd (2002) NSWSC 1229
R v Watt (2000) NSWCCA 37
ACCC v Leahy Petroleum (2007) 160 FCR 321
Australian Securities & Investments Commission v Rich (2005) NSWSC 417
Australian Federal Police v Zhang & Anor (Ruling No 2) (2015) VSC 437
R v Hannes (2000) 158 FLR 359
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205
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IMM v R (2016) 257 CLR 300
Bannon v The Queen (1995) 185 CLR 1
Lee v The Queen (1998) 195 CLR 594
R v Adams (1957) Crim LR 365
Williams v R (2000)FCA 1868
R v Polkinghorne (1999) NSWSC 704
Sio v R (2016) 259 CLR 47
Fagan v Commissioner of Police for the Metropolis (1969) 1 Q.B. 439
Green v R (2015)VSCA 279
Azizi v R (2012) VSCA 205
Gaio v R (1960) 104 CLR 419
DPP v BB (2010) 29 VR 110
Baker v The Queen (2012) 245 CLR 632
Tasmania v Dolega (2016) TASSC 65
C Legislation
Crimes Act 1900 No 40 NSW Legislation
Evidence Act 1995 NSW Legislation
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D Treaties
E Other
New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 33 Wounding or grievous
bodily harm with intent(n.d.)<
http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s33.html>
New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 35 Reckless grievous bodily
harm or wounding(n.d.)<
http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s35.html>
Sydney Criminal Lawyers , Section 59 Crimes Act 1900 : Assault Occasioning Actual Bodily
Harm(2019)< https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/
assault-occasioning-abh/>
New South Wales Government, Crimes Act 1900 No 40(n.d.)<
https://www.legislation.nsw.gov.au/#/view/act/1900/40/part3/div6/sec35>
New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 59 (n.d.)<
http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s59.html>
Sydney Criminal Lawyers ,Section 61 Crimes Act 1900 : Common Assault (2019)<
https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/common-assault/>
Nyman Gibson Miralis, The Offence of Common Assault Explained (2019)<
https://ngm.com.au/the-offence-of-common-assault-explained/>
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New South Wales Consolidated Acts, CRIMES ACT 1900 - SECT 94 (n.d.)<
http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s94.html>
Sydney Criminal Lawyers ,Section 94 Crimes Act 1900 : Robbery(2019)<
https://www.sydneycriminallawyers.com.au/criminal/legislation/crimes-act/robbery/ >
Australian Government , Evidence Act 1995(n.d.)<
https://www.legislation.gov.au/Details/C2016C00605 >
New South Wales Consolidated Acts, EVIDENCE ACT 1995(n.d.)<
http://classic.austlii.edu.au/au/legis/nsw/consol_act/ea199580/>
Judicial College of Victoria , s 57 – Provisional relevance(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27291.htm>
Judicial Commission of New South Wales , Hearsay : The hearsay rule — Pt 3.2 Div 1 (ss 59–
61)(2018) <https://www.judcom.nsw.gov.au/publications/benchbks/civil/hearsay.html>
Judicial College of Victoria ,s 62 – Restriction to ‘first-hand’ hearsay(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27299.htm >
Judicial College of Victoria , s 65 – Exception: criminal proceedings if maker not
available(2017)< http://www.judicialcollege.vic.edu.au/eManuals/UEM/27302.htm>
Streeton Lawyers , Recklessly Cause Grievous Bodily Harm Or Wounding (2019)<
http://www.streetoncriminallawyers.com.au/criminal-law/assault-violence/recklessly-cause-
grievous-bodily-harm-or-wounding/>
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Judicial College of Victoria , s 55 – Relevant evidence(2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27289.htm>
Judicial College of Victoria ,Part 3.1 – Relevance (ss 55 – 58) (2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27288.htm>
Judicial College of Victoria , s 59 – The hearsay rule: exclusion of hearsay evidence (2017)<
http://www.judicialcollege.vic.edu.au/eManuals/UEM/27295.htm>
Australian Government : Australian Law reform Commission ,The Hearsay Rule — First-hand
and More Remote Hearsay Exceptions(2018)< https://www.alrc.gov.au/>
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