Swan v The Queen [2013] VSCA 226 (30 August 2013)


CRIMINAL LAW — Appeal — Conviction — Culpable driving causing death — Appellant pleaded guilty to alternative charge of dangerous driving causing death — Crown led evidence of appellant using heroin prior to offending and history of appellant’s heroin addiction — No evidence led to show causal link between taking heroin and offending — No tendency notice filed or application to dispense with filing of notice to lead evidence of appellant’s history of heroin addiction — Evidence irrelevant and highly prejudicial — Substantial miscarriage of justice — Appeal allowed – Retrial ordered – Patel v The Queen [2012] HCA 29; (2012) 86 ALJR 954 applied

15 It follows from the above that not only was AS’s evidence of the appellant’s taking heroin before the accident irrelevant, but the evidence as to his longstanding drug addition was likewise irrelevant. It was, accordingly, inadmissible. But irrelevance was not the only problem associated with the Crown evidence as to the appellant’s drug addiction. Evidence that a person engages in a particular habit (scil. acts in a particular way), tendered to prove that he pursued that habit (scil. acted in a particular way) on a particular occasion, is tendency evidence, the admissibility of which is governed by s 97(1) of the Evidence Act 2008 . As such it is inadmissible unless the conditions precedent to its admissibility set out in ss 97(1)(a) and (b) and 101(2) are satisfied. It was required to be the subject of a notice to the appellant that the Crown would seek to rely upon it, it must have had significant probative value and that probative value must have substantially outweighed any prejudicial effect it may have had on the appellant.

16 The evidence as to the appellant’s drug habit was never the subject of a tendency evidence notice, nor was it the subject of any application by the Crown under s 100(1) of the Act for dispensation from that requirement. It was, on that score alone, inadmissible. This would have been so even if Dr O’Dell had proffered an opinion, concerning the effect upon the appellant’s driving of heroin use shortly before the accident, which supported the Crown case. In the circumstances the evidence of the appellant’s drug habit should not have been admitted to prove the likelihood of the appellant having taken heroin in the period immediately before the accident.

SLS v The Queen [2014] VSCA 31 (6 March 2014)


CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.

The Queen v Jacobson (Ruling No 1) [2014] VSC 188 (2 May 2014)


CRIMINAL LAW – Evidence – Conspiracy to take part in transactions contrary to s 1041A of the Corporations Act 2001 (Cth) – Application by prosecution to take evidence before trial from alleged co-conspirators – Criminal Procedure Act 2009 (Vic) s 198 – Objection by adult daughter to giving evidence against father – Evidence Act 2008 (Vic) s 18.

Wilson v Mitchell [2014] VSC 280 (13 June 2014)


PRACTICE AND PROCEDURE – Inspection of documents held on court file – application for confidentiality order – whether appellant would be seriously compromised or adversely affected if intervener not prevented from inspecting and/or copying the relevant documents – application for confidentiality order refused – Supreme Court (General Civil Procedure Rules) 2005, r 28.05.

The Queen v Jacobson (Ruling No 2) [2014] VSC 368 (8 August 2014)


CRIMINAL LAW – Two counts of conspiracy to contravene s 1041A of Corporations Act 2001 (Cth) – 33 counts of contravening s 1041A of Corporations Act – Joinder of counts in one indictment – Severance – Admissibility of previous dealings as context evidence – Whether previous dealings admissible as tendency evidence – Cross-admissibility of evidence as context or tendency evidence – Elements of offences.

Davies v The Queen [2014] VSCA 284 (14 November 2014)


CRIMINAL LAW – Armed with a controlled weapon with criminal intent – Plan to kidnap and harm prostitute – Whether prosecutor’s conduct caused trial to miscarry – Whether conviction was unsafe and unsatisfactory – Sentence of two years and ten months’ imprisonment – Appeal against conviction and sentence dismissed.

CRIMINAL LAW – Handling stolen goods – Whether sufficient evidence for jury to be satisfied beyond reasonable doubt that applicant knew or believed that numberplates in his possession were stolen – Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217, discussed – Conviction for handling stolen goods quashed.

CRIMINAL LAW – Possessing an unregistered firearm as a prohibited person – Definition of a ‘firearm’ for the purposes of s 3 of the Firearms Act 1996 – Whether device designed for the purpose of discharging missile – Unnecessary that the device capable of discharging shot or a missile – Whether a miscarriage arose due to conduct of prosecutor, judge’s charge or admission of evidence.

Ede v Hyde [2014] ACTSC 305 (14 November 2014)


APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against Magistrate’s refusal to make a non-conviction order for offence of supplying declared substance without authorisation – whether Magistrate misjudged seriousness of offence – whether Magistrate denied unrepresented defendant natural justice in not inviting him to seek an adjournment to obtain more evidence – whether Magistrate’s reasons suggested erroneous views about need for custodial sentences, or availability of non-conviction orders, for drug-related offences – no error by Magistrate found – appeal dismissed.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Admission of Fresh Evidence – application to adduce expert evidence about likely effect on recipients of drug supplied by appellant and about appellant’s mental health – evidence supported, but did not go beyond, submissions made by appellant in Magistrates Court and apparently accepted by Magistrate – admission of evidence tendered on appeal was not required by interests of justice and would not have provided any grounds for upholding the appeal – leave to adduce fresh evidence refused – appeal dismissed.

Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151 (13 November 2014)


TRADE PRACTICES – EVIDENCE – whether misleading or deceptive representations made orally or by conduct in relation to purchase of franchise business – where purchaser of franchise operated business for significant time without complaint before alleging misrepresentations – proof of fact requires court to feel actual persuasion of its existence – where trial many years after making of alleged representations and conduct complained of

APPEAL AND NEW TRIAL – where significant delay between conclusion of trial and delivery of judgment – limitations of appellate courts in reviewing credibility findings by trial judge

Ng v Filmlock Pty Ltd [2014] NSWCA 389 (13 November 2014)


CONTRACTS – contract for sale of land – termination for breach – measure of the vendors’ loss – whether the primary judge erred in finding that the measure of loss was the difference between the price payable under the contract and the net amount attributable to the land under a resale contract 13 months later – whether the prima facie rule governing damages for breach of a contract for sale of land should give way where there was no “available market” at the time of breach – no evidence before the primary judge as to the market value of the land at the date of breach

Attorney General in and for the State of New South Wales v Markisic [2014] NSWSC 1596 (13 November 2014)


PROCEDURE – orders sought under the Vexatious Proceedings Act 2008 (NSW) – procedural requirements satisfied – litigious history established by evidence and admissions – vexatious proceedings established – defendant frequently involved in vexatious proceedings – whether orders should extend to cross-claim – orders made

EVIDENCE – documentary evidence – documents in dispute – judgments and transcripts of proceedings – relevance – admissibility – s 91 Evidence Act 1995 (NSW) – proof – s 157 Evidence Act 1995 (NSW) – judgments – whether reasons for judgment are a public document – proof of reasons for judgment pursuant to s 48 of the Evidence Act 1995 (NSW) – hearsay – s 64 of the Evidence Act 1995 (NSW) – judges not compellable to give evidence – s 69 application of business records exception to judgments and reasons

EVIDENCE – application under s 67 of the Evidence Act 1995 (NSW) – direction given

Gillies v The State of New South Wales (No 2) [2014] NSWSC 1598 (13 November 2014)


PROCEDURE – pleadings – notice of motion – ex parte hearing – orders sought under Rule 13.4 of the Uniform Civil Procedure Rules 2005 – alternative orders sought for claim to be struck out and dismissed for want of prosecution – statement of claim not particularised in accordance with Rules – statement of claim struck out – aspects of the claim statute barred – malicious prosecution alleged – elements of malicious prosecution – cause of action untenable – proceedings dismissed – costs

Beckett v State of New South Wales [2014] NSWSC 1600 (13 November 2014)


EVIDENCE – application to adduce evidence pursuant to s 63(2) where witness unavailable by reason of death – whether applicant should have anticipated the death – whether failure to call witness amounted to conduct that disentitled reliance upon the provision – whether the death of witness during the hearing was to be distinguished from a witness who predeceased the commencement of proceedings

Hunter Quarries Pty Ltd v State of New South Wales (Department of Trade & Investment) [2014] NSWSC 1580 (12 November 2014)


ADMINISTRATIVE LAW – declaratory relief – proper construction of the Work Health and Safety Act 2011 (NSW) – order sought restraining inspectors appointed under the Mine Health and Safety Act 2004 (NSW) and/or Work Health and Safety (Mines) Act 2013 (NSW) from obtaining information by exercise of powers granted under s 171 of the Work Health and Safety Act – competing constructions of the Work Health and Safety Act – how s 155 and s 171 of the Work Health and Safety Act must be constructed – relevant rules of statutory construction – relief sought not granted – summons dismissed

Bray (A Pseudonym) v The Queen [2014] VSCA 276 (7 November 2014)


EVIDENCE – Hearsay rule – Exceptions – Criminal proceedings – Maker of previous representation not available – Deceased complainant – Statement to police – Cross-examined at committal – Whether police statement admissible – Whether committal transcript admissible – Whether accused had ‘reasonable opportunity to cross-examine’ – Whether probative value outweighed by danger of unfair prejudice – Common law discretion to exclude – Whether judge erred in not excluding evidence as unfair to accused – Haddara v The Queen [2014] VSCA 100 – Criminal Procedure Act 2009 s 295(3)(a) – Evidence Act 2008 ss 65(2)(b), 65(3), 137.

Hodder v Hamilton & Fitzpatrick [2014] VSCA 279 (6 November 2014)


ACCIDENT COMPENSATION – Occupiers’ liability – Jury trial – Application to discharge jury – Evidence – Cross-examination – Re-examination – Whether cross-examination impermissible – Whether re-examination arose out of cross-examination – DVD purporting to be a re-enactment of the accident – Whether DVD admissible- Whether DVD admissible in re-examination – Whether probative value of evidence substantially outweighed by the danger that the evidence might be confusing – No substantial wrong or miscarriage occasioned in the trial by the rejection of the tender – Evidence Act 2008 , ss 55, 78 and 135(b) – Supreme Court (General Civil Procedure) Rules 2005, r 64.23(2) – Appeal dismissed.

Vella v Minister for Immigration and Border Protection [2014] FCA 1177 (6 November 2014)


MIGRATION – application for review of the Minister’s decision not to revoke a visa cancellation under s 501C of the Migration Act – subpoena issued to the Minister for all material before him at the time of the decision – whether the documents that would otherwise have been required to be produced are protected from production under s 503A of the Migration Act – whether the evidence of the Minister satisfies the preconditions for protection under s 503A

PRACTICE AND PROCEDURE – subpoena – whether the subpoena has a legitimate forensic purpose – whether documents sought by the subpoena in relation to a particular issue cease to have apparent relevance because of a concession or admission, or because other evidence is already available in relation to that issue

Statue Pty Ltd v Hayson [2014] NSWSC 1558 (6 November 2014)


PROCEDURE – costs – claim for debt – defendant executes Personal Insolvency Agreement after filing defence – proceedings thereby stayed – whether plaintiff can seek costs notwithstanding the stay – whether appropriate to make costs order – admissions by defendant of debt in Statement of Affairs – whether court can determine that plaintiff would have succeeded in the proceedings

Highup Pty Ltd (in Liquidation) v Gubas [2014] FCA 1170 (5 November 2014)


CORPORATIONS – liquidator of a company seeking order to recover from related entity benefit resulting from insolvent transactions of the plaintiff – where plaintiff alleged to have assumed a liability for the defendant and paid money to the defendant to discharge a debt owed by the defendant – whether plaintiff presumed to be insolvent during the relevant period – whether the transactions were insolvent transactions – whether the transactions were uncommercial – whether the transactions were voidable transactions

EVIDENCE – no evidence given by the defendant – whether Court can accept that any evidence that might have been given would not have assisted the defendant’s case – whether the Court may draw other adverse inferences against the defendant – onus remains on plaintiff to prove the elements of its case

CSL Australia Pty Ltd v Minister for Infrastructure and Transport [2014] FCA 1160 (3 November 2014)


ADMIRALTY – Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) prescribed mandatory status for person making application for a temporary licence where applicant for licence not an owner, charterer, master or agent of a vessel or a shipper – where applications for licence and subsequent variations specified fictitious voyages that the licence would authorise – where applicant for licence intended to and did apply later for licence variations to amend fictitious voyages to actual voyages – where applications for licence variation varied number and substantive nature of voyages – whether use of licence circumvented purpose of general licence provisions or object of the Act – whether variation of number and substantive nature of voyages fell within matters “authorised by a temporary licence” in s 43 of Act or rather required variation under s 51 of Act for matters “not already authorised by the licence”

ADMINISTRATIVE LAW – STATUTORY CONSTRUCTION – declarations – whether licence of applicant for temporary licence’s status under s 28(1) of Coastal Trading (Revitalising Australian Shipping) Act 2012 (Cth) a jurisdictional fact – whether temporary licence held by person who did not have status to apply for it invalid for jurisdictional error

Held: temporary licence and variations invalid for jurisdictional error – second respondent circumvented purpose of general licence provisions or object of the Act

Layton Smith bht Troy Smith v NRMA Insurance Limited [2014] NSWSC 1518 (3 November 2014)


TORTS – negligence – separate determination of liability – in light of joint position of parties no discussion of legal principle required – whether plaintiff can establish on the balance of probabilities that the driver of a vehicle that crossed into oncoming traffic and collided with the plaintiff’s vehicle was conscious and in control of his vehicle at the time of the collision

Anchorage Capital Partners Pty Limited v ACPA Pty Limited (No 2) [2014] FCA 1165 (31 October 2014)


PRACTICE AND PROCEDURE – application to set aside notice to produce unredacted versions of documents to be tendered at trial – whether redacted documents relevant to issues in the proceeding – implied undertaking to use documents only for present proceeding – where applicant company intended to provide unredacted documents to fiduciaries of company – whether fiduciaries would have conflict of interest

Australian Competition and Consumer Commission v Air New Zealand Limited [2014] FCA 1157 (31 October 2014)


TRADE PRACTICES – price fixing – alleged arrangements or understandings between airlines to fix fees and surcharges in relation to the carriage of air cargo – Trade Practices Act 1974 (Cth) ss 45 and 45A – whether airlines engaged in collusive practices – whether airlines bound by domestic law or practice of foreign countries to fix charges

TRADE PRACTICES – price fixing – whether alleged price fixes had purpose, or were likely to have the effect, of substantially lessening competition in a market in Australia – whether markets were ‘in Australia’ for the purposes of Trade Practices Act 1974 (Cth) s 4E – definition of market – assessment of substitution and switching behaviour – assessment of product, geographical and functional dimensions

EVIDENCE – proving a contract, arrangement or understanding within the meaning of Trade Practices Act 1974 (Cth) s 45 – circumstantial proof of collusive behaviour – evidence to be looked at as a whole

Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487 (31 October 2014)


LEGAL PRACTITIONERS – decision by Council of the Law Society of NSW to suspend practising certificate and appoint a manager – complaints of refusal to comply with requests of investigator and of obstructing investigator – dispute as to meaning of sections of Legal Profession Act 2004 – appeal against suspension and appointment of manager – hearing de novo – meaning of sections 267, 268 and 270 of Legal Profession Act 2004 – whether suspension necessary in the public interest – whether complaints made out.

JWM v R [2014] NSWCCA 248 (31 October 2014)


CRIMINAL LAW – appeal against conviction – appellant found guilty of four counts of indecent assault on a child under the age of 16 years and four counts of aggravated sexual assault with a child between the ages of 10 and 16 years – complainant made a statement after the offences took place to the effect that she was a virgin – defence counsel intended to use that statement to demonstrate a prior inconsistent statement – whether trial judge erred in refusing to admit the evidence in accordance with s 293 of the Criminal Procedure Act 1986 – whether trial judge erred in not granting leave to the defence to cross-examine the complainant in relation to counselling consultations – whether trial judge erred in failing to warn the jury that the evidence of pretext relied upon by the complainant as a basis for initiating a recorded conversation with the accused could not be used by the jury as tendency evidence – whether the trial judge erred in linking all but one sexual reference in the recorded pretext conversation to context evidence – whether the pretext evidence was open to the jury to be used in an impermissible way, namely, as tendency evidence – whether the verdicts of guilty in respect of Counts 10 and 11 should be set aside because of an inaccurate description by the learned trial judge of the facts and circumstances relating to those offences – application of rule 4 of the Criminal Appeal Rules – appeal dismissed

R v Rice & ors (No 4) [2014] NSWSC 1525 (31 October 2014)


CRIMINAL LAW – evidence – where Crown sought to tender evidence of three telephone conversations immediately before closing its case – where evidence had been available for a considerable period beforehand – where Crown on notice of the relevant issues – evidence not previously disclosed to the accused – where counsel for accused had completed cross-examination of the Crown’s principal witness – whether procedural unfairness is capable of giving rise to unfair prejudice for the purposes of s. 137 of the Evidence Act – probative value outweighed by the danger of unfair prejudice arising from a series of circumstances – evidence rejected

Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 (30 October 2014)


APPEAL – grounds – apprehended bias – application to trial judge to recuse herself because ruling on admissibility suggested acceptance of the evidence – whether a reasonable fair-minded observer would apprehend bias

DEFAMATION – imputations – broadcast as to risks identified with infant sleep positioners overseas – infant sleep positioner manufactured and sold by applicants featured on broadcast without being named – alleged defamatory imputations that the applicants sold and offered for sale a product subject to recall and unsafe – whether defamatory imputations conveyed – whether imputations would diminish the applicants’ standing in the eyes of the ordinary reasonable person

DEFAMATION – defences – substantial truth – whether defamatory imputations as to the safety of infant sleep positioners were substantially true – reliance on expert evidence on the risks associated with infant sleep positioners to establish substantial truth – Defamation Act 2005 (NSW), s 25

DEFAMATION – defences – justification – contextual truth – imputation not substantially true – whether broadcast carried contextual imputations that were substantially true – whether defamatory imputation could do no further harm to reputation because of contextual imputations – Defamation Act 2005 (NSW), s 26

DEFAMATION – cause of action – whether corporate plaintiff an excluded corporation – corporation is an “excluded corporation” if it employs fewer than 10 persons – whether persons confined to employees – Defamation Act 2005 (NSW), s 9(2)(b)

EVIDENCE – relevance – admissibility – applicants sought to give evidence as to whether dangers in other sleep positioners applied to their products – whether non-expert opinion evidence admissible to prove falsity of a defamatory imputation

EVIDENCE – expert opinion – whether expert qualified to give opinion on the specific characteristics of the applicants’ infant sleep positioner – whether expert had a preconceived opposition to infant sleep positioners – Evidence Act 1995 (NSW), s 79

TORT – injurious falsehood – malice – whether failure to obtain comment from supplier was so reckless as to warrant inference of malice

WORDS AND PHRASES – “employs” – “persons” – Defamation Act 2005 (NSW), s 9

The Owners – Strata Plan 64415 v Vero Insurance Ltd; The Owners – Strata Plan 64415 v Vero Insurance Ltd [2014] NSWSC 1500 (30 October 2014)


PRACTICE AND PROCEDURE – adoption of referee’s report – whether referee erred in finding proceedings statute barred – whether the “appeal” referred to in s 48A of the Home Building Act 1989 creates a separate cause of action – whether referee denied plaintiff procedural fairness – whether referee failed to give reasons for conclusions on quantum

DPP (Cth) v Galloway (a pseudonym) & Ors [2014] VSCA 272 (30 October 2014)


EVIDENCE – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right – Principle of legality – No indication that legislature intended to abrogate right – Witness not required to answer – Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, R v Barton [1973] 1 WLR 115, R v Ataou [1988] QB 798, R v Craig [1975] 1 NZLR 597 considered – Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 applied – Evidence Act 2008 ss 118, 119, 123, 131A.

STATUTORY INTERPRETATION – Abrogation of common law rights – Principle of legality – Criminal proceedings – Legal professional privilege – Evidence sought to be elicited by accused in cross-examination – Whether witness can refuse to answer on ground of legal professional privilege – Whether statutory provision abrogated common law right –– No indication that legislature intended to abrogate right – Witness not required to answer – Evidence Act 2008 ss 118, 119, 123, 131A.

WORDS AND PHRASES – ‘Adducing evidence’.

Clay v The Queen [2014] VSCA 269 (30 October 2014)


CRIMINAL LAW – Conviction – Appeal – Historical sexual offending against three child complainants – Whether substantial miscarriage of justice because irrelevant evidence of bedwetting and self-mutilation admitted – No objection taken – No forensic advantage in placing such prejudicial evidence before jury – Whether substantial miscarriage of justice because of admission of complaints made by alleged victims – Whether complaints concerned events ‘fresh in the memory of the person’ – 20 year delay in case of two complainants – Hearsay rule applicable – s 66 Evidence Act 2008 – Alleged admissions on part of appellant –Whether probative value outweighed by risk of unfair prejudice – Whether trial judge gave adequate directions regarding use of alleged admissions – Evidence should not have been admitted – Whether failure of trial counsel to challenge admissibility of prosecution evidence and otherwise conduct trial in competent manner gave rise to substantial miscarriage of justice – Appeal allowed – Convictions quashed – New trial ordered.

In the matter of MK Group Phoenix Pty Ltd [2014] NSWSC 1467 (24 October 2014)


CORPORATIONS – winding up – statutory demand – application to set aside a creditor’s statutory demand under Corporations Act 2001 (Cth) ss 459H and 459J – whether there is a genuine dispute as to the existence or amount of debt – whether an offsetting claim has been established – whether debt claimed was due and payable when demand was served – whether substantial injustice will be caused unless the demand is set aside – whether there is some other reason why the demand should be set aside.

Casey v The Queen [2014] VSCA 257 (21 October 2014)


CRIMINAL LAW – Application to appeal against conviction – Whether trial judge erred in admitting tendency evidence – Whether properly construed as evidence of relationship and context – Whether trial judge failed to adequately direct jury on the use of tendency evidence – Leave granted – Appeal dismissed.

CRIMINAL LAW – Application to appeal against sentence – Whether manifestly excessive – Leave to appeal refused.

Director of Public Prosecutions (NSW) v Lucas [2014] NSWSC 1441 (20 October 2014)


CRIMINAL LAW – appeal by prosecutor against dismissal of charges – intentionally or recklessly damaging property – intimidation – magistrate erred in dismissing property damage charge – property was unable to be used for ordinary function for a period whilst imperfection was eliminated – magistrate did not prevent prosecutor from leading evidence of a pattern of violence – magistrate erred by failing to provide reasons for dismissal of intimidation charge

Commissioner of Police v Pecover [2014] NSWSC 1427 (20 October 2014)


CRIMINAL LAW – application by police to have computer drives that were found to contain child pornography forfeited to the Crown – onus of proof on person claiming lawful entitlement to possession

APPEAL – Magistrate misapprehended
s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – failure to give any reasons for decision – took account of matters of technical nature that were not “common knowledge” – Magistrate’s orders set aside and remitted to Local Court

R v Sumpton (No. 2) [2014] NSWSC 1440 (21 October 2014)


CRIMINAL LAW – evidence – sexually motivated murder of Asian woman -tendency evidence – evidence of sexual interest in Asian women – accused asserts that he has no interest in sex – accused asserts sexual dysfunction – evidence that accused watched “Asian pornography” – evidence that accused visited Asian prostitutes – evidence that accused “liked it rough” – evidence of the accused using “speed” during sexual activity – evidence of the accused’s Facebook “friends” – 90% of accused’s 110 friends “young teenage Asian females” – assessment of probative value – assessment of prejudicial effect

Munday v Commonwealth of Australia (No 2) [2014] FCA 1123 (21 October 2014)


HUMAN RIGHTS – Discrimination – disability – discrimination alleged in conduct of Commonwealth program regarding early release of superannuation on compassionate grounds – early release of superannuation sought by second applicant to pay for in-vitro fertilisation (IVF) treatment overseas on the basis that it was necessary to alleviate acute or chronic depression – IVF treatment would involve paying for ova – first application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression or that she lacked the financial capacity to meet the expense arising from the proposed treatment by other means – second application rejected because decision-maker was not satisfied that IVF was necessary to alleviate second applicant’s depression and also because superannuation funds would be used for a purpose that was not permitted under Australian law – requirement of lawful purpose not specified in Superannuation Industry (Supervision) Act 1993 (Cth) or Superannuation Industry (Supervision) Regulations 1994 (Cth) – whether imposition of this requirement involved unlawful discrimination on the basis of second applicant’s disability (infertility) – whether failure to obtain independent legal advice before imposing this requirement involved a failure to make a reasonable adjustment – Disability Discrimination Act 1992 (Cth), ss 5 and 6

WORDS AND PHRASES – “person aggrieved” – “reasonable adjustment”

The Queen v Jacobson (Ruling No 5) [2014] VSC 554 (15 October 2014)


CRIMINAL LAW Evidence Accused charged with conspiracy to take part in share purchases contrary to s 1041A of Corporations Act 2001 (Cth) Daughter alleged co-conspirator Whether prior knowledge by accused of previous such purchases by daughter relevant Whether such evidence rendered admissible by evidence given by accused Evidence Act 2008 s 137.

Rice v R (No 1) [2014] NSWSC 1400 (14 October 2014)


EVIDENCE – accused indicted for conspiracy to murder – evidence of accused’s DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested – whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence

R v Sumpton [2014] NSWSC 1432 (13 October 2014)


CRIMINAL LAW – admissions – admissions influenced by oppressive conduct – unlawful detention – requirement to take suspect before authorised officer “as soon as is reasonably practicable” – improper questioning in earlier interview – improper pressure to change version of events – failure to comply with LEPRA – whether unlawful conduct is also relevant to “oppressive conduct” under s 84 – meaning of oppressive conduct – delay in taking accused before authorised officer.

Barton v Lake Macquarie City Council [2014] FCA 1103 (13 October 2014)


EVIDENCE – expert reports tendered by applicant as evidence in reply – whether expert reports relevant – whether expert reports properly evidence in reply – whether evidence usurps the function of the judge in determining the issues in dispute – whether it would be unfairly prejudicial to the respondent to use the evidence

WORDS AND PHRASES – “unfairly prejudicial”

Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd & Ors; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd & Ors [2014] VSCA 261 (24 October 2014)


CONTEMPT OF COURT – Industrial dispute – Preventing access to building sites – Restraining orders made – Alleged breaches of restraining orders – Proceeding alleging contempt of court initiated under Supreme Court (General Civil Procedure) Rules 2005 (r 75.06(2)) – Whether civil or criminal proceeding in circumstances of case.

CONTEMPT OF COURT – Finding made of breaches of restraining orders – Finding of criminal contempt – Criminal convictions recorded and fines imposed – Whether finding of criminal contempt available when charges did not plead contumacious conduct – Whether contumacy an element of criminal contempt or an aggravating circumstance – Nature of contempt – Effect of X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALJR 656 – Whether contumacy must be pleaded in order that contempt for breach of Court orders be treated as criminal – Contumacy need not be pleaded – Sufficient that alleged contemnor put on notice that allegation of contumacy is made.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether trial judge erred in finding applicant had breached restraining orders – Terms of orders – Whether particulars of charges satisfied – Significance of redeployment of workers before relevant blockading conduct commenced – Not reasonably arguable that trial judge erred in findings of contempt.

CRIMINAL LAW – Alleged breaches of restraining orders – Whether evidence to support findings of breaches to criminal standard – Not reasonably arguable that trial judge erred in so finding.

CRIMINAL LAW – Breaches of restraining orders – Finding of criminal contempt – Fine imposed – Whether fine in respect of breach disproportionate to fines imposed for other breaches – Not reasonably arguable that fine disproportionate.

Construction Forestry Mining and Energy Union v Boral Resources (Vic) Pty Ltd (S APCI 2014 0040)

PRACTICE AND PROCEDURE – Discovery – Whether procedure under r 29.07 available against alleged contemnor in contempt proceedings brought under Supreme Court General Civil Procedure) Rules 2005 (r 75.06)(2)) – Proceeding alleging breaches of court orders – Nature of contempt alleged – Relevant evidentiary/procedural regime – Corporate defendant – Whether discovery unavailable by reason of contempt proceeding ‘criminal’ and ‘accusatorial’ – Leave to appeal against order for discovery refused.

Australian Competition & Consumer Commission v Renegade Gas Pty Ltd (trading as Supagas NSW) [2014] FCA 1135 (24 October 2014)


CONSUMER LAW – Penalty hearing – admitted contraventions – orders sought by consent – appropriate relief in the circumstances – declaratory relief – pecuniary penalties – injunctions – probation order – disqualification order – Competition and Consumer Act 2010 (Cth), ss 21, 44ZZRD, 44ZZRK, 45, 76, 80, 86C, 86E