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R v Himbert [2015] ACTSC 6 (2 February 2015)

CRIMINAL LAW – Particular Offences – drug offences – offence of trafficking in a controlled drug other than cannabis – judge alone trial – offence proved.
JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – whether case should be dismissed for want of jurisdiction – whether requisite geographical nexus exists.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether standard for admission of voice identification evidence is the same as visual identification evidence under s 135 of the Evidence Act 2011 (ACT) – held voice identification evidence is held to the general provisions of admissibility under the Evidence Act 2011 (ACT) – held that evidence not excluded by s 135 Evidence Act 2011 (ACT)

Australian Competition and Consumer Commission v South East Melbourne Cleaning Pty Ltd (in liq) (formerly known as Coverall Cleaning Concepts South East Melbourne Pty Ltd) [2015] FCA 25 (29 January 2015)

TRADE AND COMMERCE – contraventions of Australian Consumer Law – whether conduct unconscionable

TRADE AND COMMERCE – contraventions of Australian Consumer Law – false or misleading representations – false or misleading representations about the profitability, risk or other material aspect of a business – representations as to future matters

TRADE AND COMMERCE – contraventions of Competition and Consumer Act – failure to adhere to applicable industry code – failure to adhere to prescribed disclosure requirements in the Franchising Code

PRACTICE AND PROCEDURE – relief by consent – appropriateness of agreed orders and declarations

Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (29 January 2015)

MIGRATION – application for visa – where migration agent fraudulently completed visa application – public interest criterion 4020 – necessity to set aside delegate’s decision

EVIDENCE – where certain facts agreed by the parties and facts supported by evidence – where judge in Court below found that the appellant had failed to prove an undisputed fact

APPEALS – where remedy sought that was not sought in Court below – whether Court has no jurisdiction to entertain suit – utility in granting relief

Hermanus (a pseudonym) v The Queen [2015] VSCA 2 (28 January 2015)

CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred nearly 40 years ago – Child complainant – Original complaint to police lost – Whether irremediable prejudice – Whether forensic disadvantage warning sufficient – No error in refusal of stay – Leave to appeal refused.

Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015)

NATIVE TITLE – Whether native title exists in relation to any land or waters of Brisbane and surrounding area – Whether normative system of traditional laws and customs existed in claim area at sovereignty – Extent of society defined by laws then acknowledged and customs then observed – Relevance of lingual divisions – Tribes and claims within broader society – Content of laws and customs with respect to rights and interests in land and waters – Whether laws acknowledged and customs observed without substantial interruption since sovereignty – Whether members of claimant groups were descended from original peoples who possessed relevant rights and interests in relation to land and waters.

Olesen v Early Sunshine Pty Ltd [2015] FCA 12 (23 January 2015)

SUPERANNUATION – whether the Court should make declarations and impose civil pecuniary penalties upon the directors of the trustee of a regulated superannuation fund in respect of admitted contraventions of ss 62(1), 84(1) and 109(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) in order to give effect to an agreed resolution of enforcement proceedings brought by the Deputy Commissioner of Taxation (Superannuation) as the relevant regulator

Minister for the Environment v Lucky S Fishing Pty Ltd [2015] FCA 10 (22 January 2015)

ENVIRONMENT LAW – consideration of the appropriate penalty to be imposed upon a corporation for an admitted contravention of s 354(1)(f) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) being the carrying out by that corporation’s agent inadvertently of commercial fishing activities in a Commonwealth Marine Reserve in circumstances where the carrying out of any such activities in the relevant Reserve was absolutely prohibited

DPP v Tuite [2014] VSC 662 (19 December 2014)

EVIDENCE – Admissibility – Expert Evidence – DNA evidence – Likelihood ratios – Whether fully-continuous probabilistic statistical methodology for the evaluation of DNA evidence constitutes a new and discrete field of knowledge – Whether admission of DNA evidence would give rise to unfair prejudice to the accused due to its complexity – Evidence Act 2008 (Vic), ss 79(1), s 137.

Comcare v Transpacific Industries Pty Ltd [2014] FCA 1420 (23 December 2014)

INDUSTRIAL LAW – occupational health and safety – inhalation of sodium sulphide – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – pecuniary penalty – liability admitted – seriousness of the breach – foreseeable risk – lack of adequate supervision and training – inadequate risk assessment and management – specific and general deterrence – mitigating factors – contrition – corrective measures taken

McDougall v Johns [2014] ACTSC 351 (18 December 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant’s licence disqualified in Magistrates Court proceedings – leave to appeal out of time granted – appellant claimed to have delivered notice of appeal to court registry – police observed appellant driving during original licence disqualification period – appellant charged with driving while disqualified –whether delivery of notice of appeal would have stayed disqualification – whether reference to “duly instituted” appeal required notice of appeal to have been noted in court records or served on other party – conviction and sentence set aside.
EVIDENCE – General – appellant charged with driving while licence disqualified despite evidence of delivering notice of appeal against Magistrates Court orders effecting disqualification – court registry had no record of receiving notice of appeal – no evidence of court registry systems or searches – whether there was evidence of notice of appeal having been delivered to court registry – absence of challenge to appellant’s evidence that notice of appeal had been delivered – conviction and sentence set aside.

Aynsley v Fitzgerald [2014] ACTSC 357 (4 December 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appellant found guilty of menacing driving – complainant was a former friend of appellant – finding of guilt depended on Magistrate accepting complainant’s identification evidence – Magistrate assessed complainant as truthful witness – Magistrate accepted complainant’s identification evidence as reliable despite discrepancies between her evidence and that of independent witnesses – reliability of identification evidence not solely dependent on truthfulness of witness – doubts about the reliability of identification evidence were doubts that the Magistrate should also have experienced – verdict set aside and not guilty verdict entered.

CAC v Secretary Department of Family and Community Services [2014] NSWSC 1855 (24 December 2014)

FAMILY AND CHILD WELFARE – Protective (parens patriae) jurisdiction – Welfare of children paramount – Interim care order of Children’s Court challenge – Whether exceptional circumstances warranting intervention – No ground for intervention – Best interests of children favour maintenance of Children’s Court proceedings – Supreme Court proceedings dismissed.

Sze Tu v Lowe [2014] NSWCA 462 (23 December 2014)

EQUITY – Tracing – Onus and standard of proof – Where wrongdoer has mixed stolen moneys with own moneys – Black v Freedman claim attaches immediately to stolen money and its traceable product – Volunteer recipient of stolen funds, or traceable product, in no better position than the wrongdoer – Onus on wrongdoer and/or recipient to prove what contribution was from the wrongdoer’s own moneys – Standard of proof in Briginshaw v Briginshaw and s140 Evidence Act applied
LIMITATION OF ACTIONS – Partnership – Action for an account – Cause of action arises upon dissolution of partnership – Application of s15 Limitation Act directly or by analogy – Laches will not be available as a further defence in circumstances where the claim is subject to a statutory bar
LIMITATION OF ACTIONS – Partnership – Action for an account of profits or to recover trust property — Application of s 15 Limitation Act by analogy to an action for an account of profits in relation to trust assets – Application of s 47 Limitation Act directly or by analogy to an action to recover trust property or profits derived from trust property – When does time begin to run – When did the plaintiff first discover, or could have with reasonable diligence discovered, the facts giving rise to the cause of action and that the cause of action has accrued
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Actions by and against partners – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Black v Freedman claim – Institutional constructive trust over the partnership moneys (or their traceable product) – Equitable obligations imposed at the time of theft or, in the case of a volunteer recipient, from the time that they acquire knowledge of the theft – Whether indefeasibility defence under s 42 Real Property Act available for volunteer recipient where acquired registered title prior to being placed on notice of the theft – Fraud exception to s42 not pleaded – Fraud cannot be raised as a new point on appeal – Whether any in personam exception to indefeasibility applicable
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Dissolution – Single adventure or undertaking – Whether a partnership operating two businesses can be considered a single venture – Whether separate termination dates for the businesses precludes the partnership being seen as a “single venture”
PARTNERSHIPS AND JOINT VENTURES – Partnerships – Partnership Property – Application of ss20(1) and 21 Partnership Act – Deeming of property bought with partnership funds to be partnership property “held in trust for the partnership” – Statutory provisions do not create a trust “in the strict sense” nor are they sufficient to make the land “trust property”
TRUSTS – General – Partnership funds mixed with funds of a partner and used to purchase residential and investment properties – Whether the moneys or the properties (as their traceable product) are subject to statutory, express, resulting, or constructive trusts – Whether proprietary and/or accounting relief available

Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412 (22 December 2014)

CONSUMER LAW – Whether misleading, deceptive or false representations made on website about the effectiveness of whooping cough vaccine – Means of assessing efficacy and effectiveness of vaccine – Evidence based medicine – Bearing of context on characterisation of representations – Whether representations misleading, deceptive or false when read in context of an epidemic – Whether representation that vaccine was “short-lived” was misleading, deceptive or false given vaccine’s propensity to wane over time.

CONSUMER LAW – Whether misleading, deceptive or false representations made about the effectiveness of homeopathic treatments for the prevention of whooping cough – Whether representations about effectiveness of homeopathic treatments fall to be assessed against a homeopathic epistemological framework or orthodox medical science – Whether representations imply a reasonable basis in medical science.

CONSUMER LAW – Whether disclaimers erase misleading, deceptive and false nature of representations – Where disclaimer did not clearly bring the true position to the public’s attention.

CONSUMER LAW – Whether representations made in trade or commerce – Whether or not carried on for profit –
Where representations said to be contribution to public debate or educational – Whether conduct has requisite commercial or trading character – Where conduct has dual character – Where representations not presented overtly in form of an advertisement.

EVIDENCE – Where expert reports do not comply with s 79 of the Evidence Act 1995 (Cth) – Precondition to admissibility of expert evidence – Failure to provide reasons for opinion and demonstrate connection with specialised knowledge – Whether the manner in which material might be presented in the field of expertise is relevant – Duty of legal representatives to ensure expert reports comply with rules of evidence and court practice directions.

Burge v Burge [2014] NSWSC 1772 (11 December 2014)

WILLS – informal testamentary document – alterations made to draft of existing will – document dated and signed by testator – testator aware of formal requirements for execution of wills – informal document not found with earlier wills – whether testator intended document to form his will – Succession Act 2006 (NSW) s 8(2)

Tukuafu v The Queen [2014] VSCA 345 (22 December 2014)

CRIMINAL LAW – Appeal – Conviction – Incest – Conviction on four charges of incest, acquitted of one charge – Jury unable to reach verdicts on three other charges – Whether verdicts inconsistent with acquittal and jury disagreement on other charges – Whether convictions unsafe and unsatisfactory – Complainant’s memory lapse in cross-examination – Clear account in VARE interview – Jury entitled to act on evidence – Verdicts not unsafe – Reasonable explanation for differential outcomes – R v MacKenzie (1996) 190 CLR 248; Pillay v The Queen [2014] VSCA 249 applied – Appeal dismissed.

CRIMINAL LAW – Trial – Jury directions – Unreliable witnesses – Defence counsel requested warning – Jury directed to assess reliability and weight – No error – Jury Directions Act 2013 ss 11, 14, 15; Evidence Act 2008 s 165.

Landsman v R [2014] NSWCCA 328 (19 December 2014)

CRIMINAL LAW – stated case – Criminal Appeal Act 1912 (NSW), s 5B – whether stated case raises a question of law

CRIMINAL LAW – Appeal in the District Court against conviction in the Local Court by way of rehearing – Fresh evidence – Crimes (Appeal and Review Act) 2001 (NSW), s 18(2) – whether adducing fresh evidence in the “interests of judgment” – post-conviction admission made to Corrective Services Officer during interview to assess applicant’s suitability for intensive correction order – interview conducted pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) – whether applicant denied common law right of silence

WORDS AND PHRASES – “interests of justice”

Fletcher and anor as liquidators of Octaviar Administration Pty Ltd v Anderson [2014] NSWCA 450 (19 December 2014)

CORPORATIONS – winding up – winding up in insolvency – voidable transactions – time limit for bringing of proceedings by liquidators under Corporations Act 2001 (Cth) s 588FF in respect of voidable transactions – time extended upon liquidators’ ex parte application by a “shelf” order under s 588FF(3)(b) applying to all proceedings against all persons – that “shelf” order later set aside as it relates to proceedings brought against Commissioner of Taxation – finding that directors of the company who would be liable under statutory indemnity to indemnify the Commissioner for loss or damage suffered through voidable transaction order were denied opportunity to be heard on the extension application and that there was a breach of the duty of candour to the court – liquidators challenge the order setting aside the “shelf” order as against the Commissioner – whether the relevant directors were entitled to an opportunity to be heard – nature of the “right”, “interest” or “expectation” giving rise to right to be heard discussed – nature and implications of s 588FGA liability of directors discussed – PROCEDURE – miscellaneous procedural matters – ex parte application – setting aside on application of a person denied an opportunity to be heard

Application by Thomas Hudson Wilson pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1792 (16 December 2014)

CRIMINAL LAW – application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – photo identification evidence – no special facts or special circumstances raised – identification of seized items – no sense of unease or disquiet required raised – application dismissed

In the matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743 (1 December 2014)

PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena issued seeking production of documents to impugn credit of witness – whether subpoena issued for legitimate forensic purpose – whether subpoena should be set aside.

Australian Mortgage & Finance Company Pty Ltd as trustee of the Melnikoff Family Trust & Ors v Rome Euro Windows Pty Ltd as trustee of the Rome Euro Windows Unit Trust & Ors [2014] NSWSC 1744 (12 November 2014)

PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena issued sought production of all documents maintained by third party in respect of company during relevant period – whether subpoena issued for legitimate forensic purpose – whether subpoena should be set aside.

PROCEDURE – notices to produce – application for notices to produce to be set aside – whether notices to produce issued for legitimate forensic purpose – whether documents sought relevant to issues in proceedings – whether notices to produce are inconsistent with SC Eq Practice Note 11 – whether notices to produce should be set aside

Fernando v Commonwealth of Australia [2014] FCAFC 181 (22 December 2014)

DAMAGES – where primary judge awarded nominal and exemplary damages for false imprisonment in immigration detention – award of nominal damages for false imprisonment – whether primary judge erred in awarding nominal damages – whether appellant could and would have been lawfully detained if the tort had not been committed – award of exemplary damages for false imprisonment – whether primary judge erred in awarding exemplary damages – whether primary judge erred in not awarding aggravated damages.

DAMAGES – where primary judge assessed compensatory damages in the event that he was wrong in awarding only nominal damages – assessment of compensatory damages for false imprisonment – whether amount in compensatory damages manifestly inadequate.

PRACTICE AND PROCEDURE – hearing on remitter – where Full Court remitted assessment of damages to primary judge – where respondents sought to raise contention that appellant only entitled to nominal damages at hearing on remitter – where contention not raised before question remitted by Full Court – test to be applied in determining whether party should be permitted to raise new contention on remitter – whether remitter by Full Court rendered res judicata appellant’s entitlement to award of damages so as to make it beyond power for primary judge to consider the contention – whether primary judge erred in exercising discretion to allow respondents to put the contention.

Held: Appeal dismissed. Cross-appeal allowed, order for exemplary damages set aside.

Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 (22 December 2014)

CONSUMER LAW – unconscionable conduct – admitted contraventions of Australian Consumer Law – unconscionable conduct in business transactions – dealings with suppliers – threats of commercial consequences if demands not met – demanding payments – refusing to pay or repay money – enforcement and remedies – s 87B undertaking – orders sought by consent – appropriate relief in the circumstances

Danagher v Child Support Registrar [2014] FCA 1408 (22 December 2014)

PRACTICE AND PROCEDURE – appeal from Administrative Appeals Tribunal (Tribunal) – Tribunal found that appellant’s application was not lodged within the prescribed time – Tribunal dismissed application for extension of time – whether or not Tribunal erred in failing to properly construe the meaning and effect of s 29(1) of the Acts Interpretation Act 1901 (Cth) – whether or not Tribunal erred in failing to give reasons – whether or not Tribunal erred in failing to apply the applicable test for an extension of time application – relevant principles relating to applications for extension of time – whether or not Tribunal erred in having regard to irrelevant considerations and failing to have regard to relevant considerations – whether or not there was a denial of procedural fairness – principles relating to appeals against an exercise of discretion

The Queen v Bright (a pseudonym) [2014] VSCA 341 (19 December 2014)

CRIMINAL LAW – Interlocutory appeal – Cultivating a narcotic plant in a quantity not less than the commercial quantity (2 charges) – Severance of charges – Evidence – Coincidence evidence – Whether evidence cross-admissible – Necessity of determining what evidence is admissible for what purpose on each charge – Prejudice – Evidence Act 2008 , ss 98 and 101 – Criminal Procedure Act 2009, ss 193, 295, 296, 297 and 300.

Timothy John Olsen and Louise Sarah Olsen (as executors of the Estate of the late Valerie Marshall Olsen) v Second East Auction Holdings Pty Ltd t/as Sotheby’s Australia [2014] NSWSC 1840 (19 December 2014)

COSTS – indemnity costs – where application for preliminary discovery in relation to unidentified vendor of painting – where application for interlocutory injunction – where leave sought by plaintiffs to discontinue proceedings – where late enquiries revealed no basis for proceeding with application – whether defendant entitled to indemnity costs

Poole v Chubb Insurance Company of Australia Ltd [2014] NSWSC 1832 (19 December 2014)

INSURANCE – indemnity – directors and officers cover – whether insured entitled to indemnity for legal costs incurred at an ICAC hearing – whether insured knew that submission made to Government Department false or misleading – whether insured knew that public inquiry into grant of mining exploration licence likely – whether insured fraudulently in breach of duty of disclosure – whether insured fraudulently misrepresented the position when answering questions in proposal; EVIDENCE – allegation of fraudulent misrepresentation and non-disclosure – onus – whether clear and cogent proof established – whether Jones v Dunkel inferences to be drawn where case of fraud sought to be established in part from documentary and circumstantial evidence

Australian Competition and Consumer Commission v Fisher & Paykel Customer Services Pty Ltd [2014] FCA 1393 (19 December 2014)

COMPETITION – misleading or deceptive conduct – admitted contraventions of the Australian Securities and Investments Commission Act 2001 (Cth) – orders sought by consent – whether declarations, injunctions, non-punitive orders and pecuniary penalties sought appropriate – relevant principles

Ha v The Queen [2014] VSCA 335 (18 December 2014)

CRIMINAL LAW – Conviction – Views and inspections – Judge’s summary– Jury inspected crime scene – Questions asked but not recorded – Judge declined to summarise view – Acquiescence by defence counsel – No miscarriage of justice – Observations about importance of summarising what took place– Evidence Act 2008 , ss 53, 54.

CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts unsafe and unsatisfactory – Whether jury entitled to accept complainant’s account – Distress – Prompt complaint – DNA evidence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Indecent assault (eight charges) – Total effective sentence 4 years, non-parole period 2 years – Whether manifestly excessive – Prior offending of similar character – Victim was young employee – Breach of trust – Importance of specific deterrence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Serious sexual offender – Judge did not make required declaration – whether omission able to be corrected on appeal – No power to correct – Sentencing Act 1991, s 6F, s104A, Criminal Procedure Act 2009, ss 312, 325.

Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd [2014] FCA 1366 (18 December 2014)

PATENTS – innovation patents – construction of claims – alleged invalidity – non-compliance with s 18(1A) of Patents Act 1990 (Cth) – lack of novelty – lack of innovative step – whether a manner of manufacture – not useful – non-compliance with s 40(3) – lack of clarity – lack of fair basis

PATENTS – infringement – authorisation – meaning of s 13(1) of the Patents Act 1990 (Cth)

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 (18 December 2014)

WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 – leave to commence proceedings more than three years after injury – respondent accepted appellant demonstrated prima facie case on liability – respondent did not contend actual prejudice but relied on presumptive prejudice – appellant relied on explanation for delay given by solicitor on basis of information and belief – adequacy of explanation for delay – where primary judge rejected application – whether exercise of discretion miscarried

EVIDENCE – s 75 Evidence Act 1995 – whether sufficient for appellant to rely in interlocutory application seeking extension of time to commence proceedings upon evidence from solicitor on information and belief to explain delay

DPP v Kaba [2014] VSC 52 (18 December 2014)

ADMINSTRATIVE LAW – magistrate’s decision that police had no statutory power of random traffic stop – exercise of discretion to exclude evidence of alleged street offences – whether judicially reviewable error – statutory interpretation – human rights – principle of consistency – principle of legality – principle of Charter-consistent interpretation – whether evidence improperly or unlawfully obtained – evidence, police powers and human rights – ‘liberty’, ‘freedom of movement’, ‘privacy’ – Road Safety Act 1986 (Vic) s 59(1), Evidence Act 2008 (Vic) s 138(1),(3), Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1).

Campbell v The Members of Lloyd’s Syndicate QBE Casualty 386 & Ors [2014] VSC 655 (18 December 2014)

APPEAL – Evidence – Discovery – Legal professional privilege – Implied waiver – Issue waiver – Whether primary decision maker erred by finding waiver of privilege – Whether pleaded case inconsistent with maintenance of privilege – Confidential documents not laid open to scrutiny – Insufficient reasons – Associated waiver based on conduct – Appeal allowed – Decision varied.

Harmonious Blend Building Corp v Keene & Anor [2014] VSC 649 (18 December 2014)

PRACTICE AND PROCEDURE – Amendment of pleading – Leave sought to amend statement of claim – Plaintiff claims reputational damage from conduct of defendants that was misleading or deceptive – Statements posted on product review website by defendants – Whether conduct in trade or commerce – Whether adequate cause of loss and damage from conduct pleaded.

PRACTICE AND PROCEDURE – Security for costs – Plaintiff a corporate trustee of a unit trust – Enforcement of any right of indemnity against trust assets uncertain – Risk that plaintiff unable to pay costs on demand – Whether persons standing behind plaintiff taking benefit of proceeding should put up security – No risk of stultification – Merits of claim – Delay – Security ordered for future costs only – s 1335(1) Corporations Act 2001 (Cth), R 62.02 Supreme Court (General Civil Procedure) Rules 2005.

Joseph v The Queen [2014] VSCA 343 (18 December 2014)

CRIMINAL LAW – Conviction – Applicant convicted of multiple offences including aggravated burglary whilst co-offender armed with firearm – Whether necessary for trial judge to give anti-propensity warning in relation to weapon of similar description located at co-offender’s home – No exception taken to failure to give warning at trial – No substantial miscarriage of justice – Thompson and Wran v The Queen [1968] HCA 21; (1968) 117 CLR 313 distinguished.

CRIMINAL LAW – Sentence – Applicant convicted on basis of joint criminal enterprise – Total effective sentence 14 years and 6 months with non-parole period of 11 years – Co-offender, whose involvement was relevantly indistinguishable, sentenced to 11 years with non-parole period of 7 years 6 months – Co-offender younger and fewer prior convictions – Whether justifiable sense of grievance based upon undue disparity between sentences – Undue disparity between respective non-parole periods – Leave to appeal against sentence granted – Applicant’s non-parole period reduced to 9 years 6 months.

Murrell v The Queen [2014] VSCA 334 (18 December 2014)

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary and armed robbery – Possession of firearms and implements said to have been used in crime – Whether evidence of possession of items admissible – Similarity of items to description given by victims – Whether investigators obliged to show items to victims before trial – Whether prosecutor obliged to ask witnesses at trial whether items were similar – Circumstantial evidence rendering it probable that items were used in crime – Whether probative value of evidence outweighed by prejudicial effect – Whether need of direction as to applicant’s participation in incriminating conversation – Whether verdicts unsafe and unsatisfactory – Leave refused.

CRIMINAL LAW – Appeal – Judge’s summing up – Duties of trial judge – Obligation to identify all evidence whether direct or circumstantial relevant to the issues – Jury Directions Act 2013 ss 17, 18

Lancaster v The Queen [2014] VSCA 333 (17 December 2014)

CRIMINAL LAW – Indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, make threat to kill – Expert opinion evidence based upon representations in business records – Whether exclusion of business records productive of a substantial miscarriage of justice – Complainant exhibiting sexualised behaviour – Whether result of exposure to sexual conduct or sexual abuse – Risk of misattribution or transference – Whether judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 to cross-examine complainant – Appeal allowed.

CRIMINAL LAW – Tendency evidence – Sexual interest in complainant – Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied – Whether anti-propensity warning required – Grech v The Queen [1997] 2 VR 609, discussed – Grech directions qualified.

CRIMINAL LAW – Ostensible bias – Whether undue intervention in trial – Whether judge’s refusal to recuse himself gave rise to apparent bias – Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, applied.

EVIDENCE – Business records – Files maintained by Department of Human Services and other cognate organisations – Expert opinion evidence based on facts recorded in files sought to be tendered by defence – Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 – Whether contents of files rightly excluded as hearsay – Procedure to be followed – Each entry in files relied upon in expert reports reviewed to determine whether that entry satisfies requirements of admissibility in s 69(2) – Whether representations by person who had personal knowledge of facts – Second-hand or more remote hearsay – Sections 62 and 69 of the Evidence Act 2008 .

Nominal Defendant v Ismail [2014] NSWCA 432 (17 December 2014)

APPEAL AND NEW TRIAL – order for new trial – findings based on inadmissible evidence – whether unchallenged findings sufficient to determine liability without need for a retrial – inconsistencies between witnesses’ account of accident – whether inconsistencies can be resolved by appellate court – opportunity at trial to assess reliability of accounts on the basis of witnesses’ oral presentation

DAMAGES – assessment – whether allowance for lost earning capacity inadequate – whether allowance for future domestic assistance inadequate – whether trial judge erred in reduction for vicissitudes

EVIDENCE – admissibility – expert opinion evidence – evidence of traffic engineer that inconsistencies between two witnesses were different perceptions of the same event – whether opinion based wholly or substantially on specialised knowledge of the expert – extent of expert’s specialised knowledge – whether expert had any specialised knowledge in psychology – Evidence Act 1995 (NSW), s 79

TORTS – negligence – motor vehicle accident – unidentified vehicle(s) involved in accident – inconsistent accounts as to nature and actions of the unidentified vehicle – trial judge resolved inconsistency by finding there were two vehicles involved – whether evidence sufficient to determine what caused the accident – whether evidence sufficient to find there were two vehicles – whether evidence sufficient to determine the drivers of either of the unidentified vehicles were negligent