Hamilton v Pickering [2014] VSC 399 (26 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/399.html

CRIMINAL LAW — Appeal to County Court against conviction and sentence imposed by Magistrates’ Court — Whether appellant required to attend the hearing of appeal — Whether appearance by counsel sufficient — Personal attendance not required — Criminal Procedure Act 2009 ss 254, 255, 256, 267, 268, 328, 329, 330 and definitions of ‘appear’ and ‘attend’ in s 3 — County Court Criminal Procedure Rules 2009 r 3.02, Form 3A.

ADMINISTRATIVE LAW — Application for judicial review — Order of judge of County Court striking out appeal against conviction and sentence imposed by Magistrates’ Court — Absence of power to make order — No discretionary considerations warrant dismissal of application — Application granted.

Hanna v The Queen; Mohamed v The Queen; Mohamed v The Queen [2014] VSCA 187 (26 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/187.html

CRIMINAL LAW – Appeal – Conviction – Kidnapping, false imprisonment and intentionally causing injury – Jury directions – Whether directions about ‘background’ or ‘context’ invited propensity or tendency reasoning by jurors – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Appeal – Conviction – Leave to appeal – Jury – Apprehended bias – Whether juror overheard accused at café – Whether judge investigated adequately – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Kidnapping, false imprisonment and intentionally causing injury –Total effective sentence nine years and six months’ imprisonment, non-parole period seven years – Whether manifestly excessive – Parity – Whether identical sentences adequately reflected youth and rehabilitation of younger applicants – Procedural fairness – Psychologist’s report – Judge’s assessment of applicant more favourable than report – Whether finding reasonably anticipated – Younger applicants re-sentenced – Eight years’ imprisonment, non-parole period five years and six months.

McGavin v R [2014] NSWCCA 171 (25 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/171.html

CRIMINAL LAW – direction to jury – multiple break and enters in company – co-offender received reduced sentence on undertaking to provide evidence against applicant – neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender – co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking – no warning sought that evidence of co-offender may be unreliable – judge warned about unreliability of co-offender’s evidence with reference to percentage of discount afforded – whether warning on unreliability by the trial judge sufficient – whether the trial judge should have referred to the reduction of time the discount reflected – whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking – Criminal Appeal Rules (NSW), r 4 – Evidence Act 1995 (NSW), s 165

EVIDENCE – warning as to unreliability – witness gave statement to police – discount on sentence for assistance to law enforcement authorities – witness faced resentencing if he departed from undertaking to give evidence implicating his father – whether warning need to quantify effect of discount at risk – whether warning needed to explain liability to be resentenced if he departed from undertaking – Evidence Act 1995 (NSW), s 165

Baxter v Baxter [2014] VSC 377 (22 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/377.html

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by three adult sons, three grandchildren and one stepgrandchild — Claim by adult son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Further provision ordered

Gemmell & Anor v Le Roi Homestyle Cookies Pty Ltd & Ors [2014] VSCA 182 (22 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/182.html

PRACTICE AND PROCEDURE – Pleadings – Discovery – Appeal from order for delivery of defence and for giving discovery in insolvent trading claim – Appellants were directors of company in liquidation – Appellants did not claim useimmunity against self-incrimination or exposure to penalty during public examinations by liquidator – Statement of Claim based on answers given during public examinations – Whether appellants relieved from delivering substantive defences and making discovery – Whether common law privileges abrogated in present proceeding – Effect of answers given in public examination upon common law privileges – Appellants not relieved from delivering defences and making discovery to extent of answers previously given – No waiver of privileges, but no increased jeopardy – Appellants not disentitled from claiming privileges with respect to potential selfincrimination or exposure to penalty travelling beyond that resulting from answers given (and incorporated documents) at public examination – Corporations Act 2001 (Cth), ss 597(12), (12A) and (14) – Microsoft Corporation v CX Computer Pty Ltd [2002] FCA 3; (2002) 116 FCR 372 applied.

Edith White v Judith Liane Wills [2014] NSWSC 1160 (22 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1160.html

EQUITY – undue influence – where plaintiff executed a deed not to revoke her will – whether presumption of undue influence arises – whether presumption rebutted – whether improvident transaction – whether plaintiff received independent advice – whether unjust under Contracts Review Act – whether doctrine of suspicious circumstances applies

Wallace on behalf of the Boonthamurra People v State of Queensland [2014] FCA 901 (22 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/901.html

NATIVE TITLE – whether the apical ancestors of the respondent groups were also apical ancestors of the native title claim group – traditional area associated with the apical ancestors of the respondent groups were not part of the geographical area of the claim group – apical ancestors of the respondent groups did not acquire native title rights or interests in the claim area – strong anthropological evidence that the apical ancestors were unlikely to come from the claim area

Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392 (22 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/392.html

WILLS AND ESTATES — Principal beneficiary under will convicted of defensive homicide of the deceased — Whether forfeiture rule applies — Whether discretion not to apply forfeiture rule — Whether constructive trust should be imposed — Whether gift over saved by the rule in Jones v Westcomb (1711) Prec Ch 316; 24 ER 149 — Supreme Court (General Civil Procedure) Rules 2005, r 54.02

Briggs v Mantz [2014] VSC 281 (22 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/281.html

TESTATOR’S FAMILY MAINTENANCE — Application under Pt IV of the Administration and Probate Act 1958 — Deceased survived by adult son and four adult grandchildren — Estate divided equally between the son and four grandchildren — Estate comprised principally of deceased’s home — Claim by the son of the deceased — Whether the deceased had a responsibility to make further provision for the son — Son sought further provision of the whole of the estate, alternatively, ninety per cent of the estate — Competing claims against the estate of the deceased — Son’s claim dismissed

Smith v O’Neill [2014] NSWSC 1119 (21 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1119.html

SUCCESSION – Wills probate and administration – Revocation of grant of Probate in common form – Whether Will executed in accordance with Part 2.1 of the Succession Act 2006 – Not so executed – Whether court satisfied that Will forms the deceased’s Will and that she intended it to form her Will – Gift to solicitor in Will – Another solicitor, a friend and colleague of solicitor/beneficiary, takes instructions from deceased – Suspicious circumstances – Whether deceased knew and approved of the terms of the Will

Walker v The Queen [2014] VSCA 177 (18 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/177.html

CRIMINAL LAW – Conviction – Appeal – Refusal to discharge jury following evidence of bad character – Substantial miscarriage of justice – Refusal to give unreliable witness warning under s 165 of the Evidence Act 2008 – Warning not required – Appeal allowed – Question of appropriate relief – Retrial ordered – Observations as to Director’s discretion.

Lazaris v R [2014] NSWCCA 163 (18 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/163.html

CRIMINAL LAW – Offence of supplying prohibited drug – Trial before judge alone – Where Crown relied on circumstantial case – Where trial judge satisfied beyond reasonable doubt of applicant’s guilt – Whether verdicts unreasonable or could not be supported by the evidence

EVIDENCE – Where hearsay representations admitted without objection – Where trial judge relied upon representations as evidence of the truth – Whether open to the trial judge to do so – Whether evidence admissible as an exception to the hearsay rule in any event

Hasler v Singtel Optus Pty Ltd;Curtis v Singtel Optus Pty Ltd;Singtel Optus Pty Ltd v Almad Pty Ltd [2014] NSWCA 266 (15 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/266.html

APPEAL – challenge to findings of fact – deference to trial judge

EQUITY – fiduciary duty – employee in position of conflict – accessory liability for knowing assistance in dishonest and fraudulent design – meaning of “dishonest and fraudulent design” – whether necessary to show knowledge of absence of informed consent – measure of equitable compensation

FRAUD – pleadings and course of trial – whether finding of dishonesty available

PRECEDENTS – departure from decision of another intermediate appellate court – where not necessary to do so in order to resolve appeal – where issue was important, causing inconsistent formulations of principle – precedential status of a decision which did not itself develop the common law but merely explained decision of High Court – comity

Hunter v Hanson [2014] NSWCA 263 (13 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2014/263.html

PRACTICE AND PROCEDURE – extension of time for service – respondent filed statement of claim pleading causes of action in defamation and others shortly before limitation period for defamation causes of action expired – statement of claim not served on applicant within time limited by UCPR 6.2(4)(b)(ii) – respondent decided not to serve statement of claim until judgment in an appeal from a decision which if correct afforded a defence of absolute privilege to his defamation causes of action was delivered and also to avoid aggravating situation with applicant in respect of whose conduct he had sought an APVO – after APVO order granted and appeal judgment delivered respondent obtained leave to serve statement of claim out of time – exercise of judicial discretion to extend time – whether “good reasons” for delay in service – whether knowledge of sufficient facts to plead statement of claim determinative against extension of time – effect of expiration of limitation period on extension of time for service application

Honeysett v The Queen [2014] HCA 29 (13 August 2014)

http://www.austlii.edu.au/au/cases/cth/HCA/2014/29.html

Evidence – Admissibility – Opinion evidence – Section 79(1) of Evidence Act 1995 (NSW) exception for evidence of opinion based wholly or substantially on specialised knowledge based on training, study or experience – Prosecution adduced evidence of anatomist regarding physical characteristics common to persons depicted in images – Whether opinion based wholly or substantially on specialised knowledge.

Words and phrases – “opinion rule”, “specialised knowledge”, “training, study or experience”, “wholly or substantially”.

Evidence Act 1995 (NSW), ss 76, 79.

Vergara v Ewin [2014] FCAFC 100 (12 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/100.html

HUMAN RIGHTS – discrimination – sexual harassment – appeal against finding of sexual harassment by unwanted sexual intercourse – appellant challenged finding that sexual intercourse occurred – whether Judge failed to apply appropriately the standard of proof and to take account of the gravity of the finding – whether finding open on the facts found at trial

HUMAN RIGHTS – appellant challenged finding of sexual harassment occurring at a hotel and on a public street – consideration of the meaning of “workplace” in s 28B(6) of the Sex Discrimination Act 1984 (Cth)

DAMAGES – appeal against assessment of damages – whether Judge inappropriately had regard to punitive considerations in awarding damages

Construction, Forestry, Mining and Energy Union v Director of Fair Work Building Industry Inspectorate [2014] FCAFC 101 (8 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/101.html

INDUSTRIAL LAW – application of s 553 of the Fair Work Act 2009 (Cth) – where applicant convicted of criminal contempt in the Supreme Court of Victoria – whether proceedings for pecuniary penalty order stayed or dismissed in so far as there is conduct that is substantially the same – whether s 553 operates where contempt of court alleged

Australian Competition and Consumer Commission v Scoopon Pty Ltd [2014] FCA 820 (8 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/820.html

COMPETITION – consideration of conduct admitted by the respondent to be conduct in contravention of ss 18, 29(1)(g), 29(1)(i) and 29(1)(m) of the Australian Consumer Law, Schedule 2, Competition and Consumer Act 2010 (Cth) – consideration of the scope of relief to be granted to the applicant in respect of that conduct comprising declarations, injunctions, the imposition of a pecuniary penalty, the establishment of a compliance program, a community service program and the payment of costs

Matthews v R [2014] NSWCCA 151 (8 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/151.html

CRIMINAL LAW – conviction appeal – whether verdict of jury unreasonable and cannot be supported by evidence – charge of murder – two men involved in a street fight – conflicting evidence as to what happened – evidence of principal Crown witness unreliable in a number of significant respects – not open to jury to conclude beyond reasonable doubt that applicant had intent necessary for murder – murder conviction should be quashed – new trial on the charge of manslaughter.

Fair Work Ombudsman v Crystal Carwash Cafe Pty Ltd (No 2) [2014] FCA 827 (7 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/827.html

INDUSTRIAL LAW – civil penalty proceedings – contraventions of Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“the Award”) – underpayment of minimum rates of pay under the Award – underpayment of overtime entitlements under the Award – contravention of requirement to keep adequate records – whether contraventions were serious and part of a pattern of conduct – whether high range penalty is justified in the circumstances

Mulhern v Pearce (No 2) [2014] FCA 805 (1 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/805.html

BANKRUPTCY AND INSOLVENCY – application by trustees for summary dismissal – r 1.03(2) Federal Court (Bankruptcy) Rules 2005 (Cth) and r 26.01 Federal Court Rules 2011 (Cth) – primary proceedings concern application by bankrupt seeking annulment of sequestration order, discharge of bankruptcy and return of passport and United States Green Card – two interlocutory applications filed by bankrupt seeking return of passport and discharge of bankruptcy – whether bankrupt has reasonable prospect of successfully prosecuting the proceeding – bankrupt not personally served with bankruptcy notices or creditor’s petitions – service effected in accordance with substituted service orders – whether jurisdiction for sequestration order existed – s 43(1)(b) Bankruptcy Act 1966 (Cth) – bankrupt alleging business not carried on in Australia and not ordinarily resident in Australia at time of bankruptcy – bankrupt not contesting any factual evidence on which court relied in making sequestration order – assertion that debt the subject of bankruptcy paid by bankrupt

PRACTICE AND PROCEDURE – application to reopen hearing to adduce further evidence made by trustees – further application to adduce evidence made by bankrupt – whether in interest of justice to reopen and admit evidence – whether material relevant

PRACTICE AND PROCEDURE – application by trustees for security for costs – s 56 Federal Court of Australia Act 1976 (Cth) – r 19.01 Federal Court Rules 2011 (Cth) – whether bankrupt has assets in jurisdiction – whether order for security would stifle proceedings – bankrupt’s prospects of success – bankrupt’s ability to satisfy a costs order – whether bankrupt has cooperated with trustees

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796 (1 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/796.html

PRACTICE AND PROCEDURE – subpoenae – legal professional privilege – advice privilege – common law principles – whether communications made for the dominant purpose of legal advice – communications made by or disseminated to third party non-legal advisers – distinction between legal advice and commercial, financial or other advice

Investa Properties Pty Ltd v Nankervis (No 6) [2014] FCA 804 (1 August 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/804.html

PRACTICE AND PROCEDURE – s 26(a) and (c) and s 42 Evidence Act 1995 (Cth) – manner in which evidence to be given by litigants in person – whether respondents have same interests in proceeding – whether respondents should be allowed to cross-examine each others’ witnesses – sequence of cross-examination

Health Services Union NSW -v- Peter Mylan [2014] NSWSC 1026 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1026.html

EVIDENCE- self-incrimination – Evidence Act 1995 (NSW) s 128 – where plaintiff seeks the grant of a certificate in respect of evidence to be given by a witness who has agreed to provide an affidavit but only on condition that such a certificate is granted – held requirements of s 128 not met and certificate cannot be granted because the witness has not objected to giving particular evidence under compulsion – Certificate refused – PROCEDURE – advance rulings and findings – s192A of the Evidence Act 1995 (NSW)

King Par, LLC v Brosnan Golf Pty Ltd [2014] FCA 795 (30 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/795.html

INTELLECTUAL PROPERTY – consideration of an application under s 31A of the Federal Court of Australia Act 1976 (Cth) that judgment be entered for the applicant in an action for cancellation of the registration of the trade mark ORLIMAR, under s 88(1) of the Trade Marks Act 1995 (Cth) in reliance upon s 88(2)(a) having regard to the question under s 58 of that Act of whether registration of the trade mark could have been opposed on the ground that the applicant for the mark was not the owner of the mark – consideration of the issue of ownership of a trade mark – consideration of authorship and first use – consideration of abandonment of a trade mark and loss of ownership

Sgargetta v NAB [2014] VSCA 159 (30 July 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/159.html

EVIDENCE – Application to adduce fresh evidence on appeal – Principles in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 restated – Application granted.

MORTGAGES AND SECURITIES – Possession proceedings – Deed of settlement – Appellant failed to comply with obligation under the deed to provide a conditional letter of approval for finance on terms acceptable to the respondent for specified sum – Attempted performance by appellant of obligation to pay respondent the specified sum did not overcome failure to comply with obligation to provide a conditional letter of approval – Respondent entitled to continue with proceedings as provided under deed of settlement.

MORTGAGES AND SECURITIES – Unconscionability of conduct of the respondent with respect to deed of settlement under s 21 of the Australian Consumer Law – Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 and Director of Consumer Affairs Victoria v Scully [2013] VSCA 292; (2013) 96 ACSR 455 applied – Respondent’s conduct not unconscionable as did no more than rely on entitlement under deed of settlement.

MORTGAGES AND SECURITIES – Request by appellant for statement of pay out figure for loan under s 83 of National Credit Code – Respondent did not contravene s 83 – In any case, compliance with s 83 is not a condition precedent to the institution of proceedings for possession – Monas v Perpetual Trustees Victoria Ltd [2011] NSWCA 417; (2011) 80 NSWLR 739 applied – Observation on ‘determinations’ under s 84 of National Credit Code.

Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2014] FCA 791 (30 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/791.html

TRADE PRACTICES – false representations – misleading or deceptive conduct – allegation that respondents contravened ss 52 and 53 of the Trade Practices Act 1974 (Cth) (“the TPA”) by publishing certain false, misleading or deceptive representations in respect of certain goods – whether the representations contravened the TPA

TRADE PRACTICES – representation as to a future matter – reliance on s 51A of the TPA – whether there were reasonable grounds to support the representation made

TRADE PRACTICES – allegation that the first respondent breached s 52 of the TPA by representing that it had reasonable grounds to make certain representations – representations as to past and present matters – representations not made in contravention of the TPA – whether there were reasonable grounds to make the representations

TRADE PRACTICES – accessorial liability – representation as to a future matter – whether the second respondent had actual knowledge that the representation was made – whether the representation was misleading or deceptive – whether there were reasonable grounds for making the representation – whether the second respondent was knowingly concerned in the contravention of the TPA

Farkas v R [2014] NSWCCA 141 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/141.html

CRIMINAL LAW – appeal against sentence – ongoing drug supply – misapprehension of fact about applicant’s motivation – no evidence of financial gain – whether financial gain an element of the offence

EVIDENCE – finding as to ‘normal street purity’ of drug – use of other cases as evidence of fact – judicial notice – lack of clarity of fact in issue – lack of notice to offender

EVIDENCE – whether Evidence Act 1995 (NSW) applies in sentencing proceeding – what rules apply if Act does not apply – Evidence Act 1995 (NSW), s 4

PROCEDURAL FAIRNESS – judge relying on own enquiries about factual matter without notice to offender

WORDS AND PHRASES – “common knowledge” – Evidence Act 1995 (NSW), s 144

R v MM [2014] NSWCCA 144 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/144.html

CRIMINAL LAW – evidence – tendency evidence – admissibility – whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) – whether judicial directions may ameliorate any prejudicial effect
CRIMINAL LAW – evidence – context evidence – admissibility – whether evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995 (NSW)

Canadian Solar v ACN 138 535 832 Pty Ltd, In the Matter of ACN 138 535 832 Pty Ltd (Subject to a Deed of Company Arrangement) [2014] FCA 783 (29 July 2014)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2014/783.html

CORPORATIONS – Deed of Company Arrangement (DOCA) terminated by the Court under s 445D of the Corporations Act 2001 (Cth) – Consent of parties to termination of DOCA relevant but not determinative – Where contraventions of the DOCA established – Loss of opportunity to investigate and pursue potentially voidable transactions – Where evidence of secret deals with some creditors to obtain approval of the DOCA – Whether Court should appoint liquidators – Where doubt exists over validity of appointment of voluntary liquidators – Factors relevant to determining who Court should appoint as liquidator – Whether conflict of interest by reason of potential appointees’ interest in recovering professional fees – Termination of voluntary winding up

Jarrett v R [2014] NSWCCA 140 (28 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/140.html

CRIMINAL LAW – appeal – conviction – directions to jury – admissions made of offences with unspecified victim when accused medicated – directions sought and given went no further than suggesting unreliability – whether direction that the accused may have been referring to someone other than the complainant required – prejudicial effect of proposed direction

CRIMINAL LAW – access to video of complainant’s evidence in chief in jury room – general warning to jury about reliance on the video – whether further warning required when viewing video in jury room – procedure when jury seek access to video – video requested along with other evidence – Criminal Procedure Act 1986 (NSW), s 306X

CRIMINAL LAW – appeal – sentence – whether trial judge failed to consider the mental health of the accused

EVIDENCE – delay in making complaint about sexual offence – mandatory warning that delay does not by itself undermine a complainant’s credibility – whether a warning was required that the complaint was not made at the earliest reasonable opportunity – whether there was “sufficient evidence” to require a warning – Criminal Procedure Act 1986 (NSW), s 294

EVIDENCE – delay in prosecution – whether accused suffered a significant forensic disadvantage – whether “good reasons” not to give warning – Evidence Act 1995 (NSW), s 165B

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (25 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/93.html

ADMINISTRATIVE LAW – Civil Aviation Safety Authority – whether the Administrative Appeals Tribunal was bound to apply the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 – whether the Tribunal erred in not requiring compliance with the rule in Browne v Dunn (1894) 6 R 67 – whether notice was given in any event satisfying the rule in Brown v Dunn and affording the appellant procedural fairness

EVIDENCE – rules of evidence may provide guidance to administrative tribunal – Administrative Appeals Tribunal not bound by the rules of evidence

Held: Appeal dismissed with costs

JG v R [2014] NSWCCA 138 (25 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/138.html

CRIMINAL LAW – appeal against conviction – appellant convicted of multiple offences relating to sexual assaults against two complainants – complainants were students at the school at which the appellant resided and was employed – jury in the first trial were unable to agree as to the counts and were discharged – appellant retried before another judge and jury – during the second trial the appellant sought a redetermination of a number of pre-trial orders made by the first trial judge – trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of separate trials on the counts relating to each complainant – trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of tendency and coincidence evidence relied upon by the prosecution – trial judge did not err in refusing an application for a permanent stay of the indictment in respect of one complainant – appellant was not cross-examined contrary to Palmer v R – principles as to impermissible cross-examination referred to in Gonzales v R [2007] NSWCCA 321 – whether there was a miscarriage of justice – basis upon which the appellant conducted his case that complainants and other witnesses had lied – conviction of the appellant was not unsafe or unsatisfactory – appeal dismissed

Saoud v R [2014] NSWCCA 136 (25 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/136.html

APPEAL AND NEW TRIAL – appeal – general principles – interference with discretion of court below – whether decision involved a discretionary exercise of power

COURTS AND JUDICIAL SYSTEM – intermediate appellate courts – interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence – different interpretations alleged as to meaning of “significant probative value” – Velkoski v The Queen [2014] VSCA 121 held “significant probative value” requires a higher degree of similarities to that required by this Court – whether difference exists – whether difference needs to be addressed and reconciled – Evidence Act 1995 (NSW), ss 97, 98 – Evidence Act 2008 (Vic), ss 97, 98

EVIDENCE – admissibility – tendency and coincidence evidence – similar circumstances alleged in separate and independent complaints against applicant – whether evidence had “significant probative value” – whether trial judge failed to identify issues at trial to determine probative value – degree of specificity of conduct in determining probative value of tendency or coincidence evidence – relevance of similarities in determining probative value of tendency evidence – whether probative value of evidence outweighed any prejudicial effect – Evidence Act 1995 (NSW), ss 97, 98, 101(2)

In the matter of Ege Foods Australia Pty Ltd [2014] NSWSC 983 (24 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/983.html

CORPORATIONS – External administration – winding up – winding up in insolvency – creditor’s statutory demand – validity – where accompanying affidavit does not verify debt claimed – whether non-compliance with s 459E(3) renders demand ineffective – held, it does – service – by registered post – whether Evidence Act s 160 applies to service of demand – held, it does

TS v Constable Courtney James [2014] NSWSC 984 (17 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/984.html

APPEAL – whether magistrate erred in admitting evidence of intercepted telephone calls – whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply

EVIDENCE – Evidence Act 1995 (NSW) applies to applications for a forensic procedure – Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act – laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of – meaning of reasonable grounds for suspicion or belief

R v Hunter (No 12) [2014] NSWSC 1155 (16 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1155.html

CRIMINAL LAW – EVIDENCE – witness – examination in chief – witness protected by certificate pursuant to Evidence Act s 128 – witness gave evidence that evidence he had previously given while on oath in these proceedings is false – whether the certificate protects the witness in respect of this falsity – whether issue should be raised with witness