CRIME – appeal against conviction – where appellant acquitted during trial on four counts of sexual assault and then convicted on remaining five counts – whether verdicts unreasonable – whether evidence of an alleged admission to the complainant’s husband should have been excluded under s 137 of the Evidence Act – whether evidence of statements by mother of complainant excluded by consent ought to have been admitted
DISCIPLINARY PROCEEDINGS – barrister – professional misconduct – allegation that barrister knowingly gave false evidence in proceedings in which she was a party – whether Tribunal failed to consider relevant evidence
CIVIL LIABILITY – helicopter undertaking aerial power line inspection at St Albans for Endeavour Energy – helicopter owned and operated by Precision Helicopters – wire strike with disused Telstra catenary wire – helicopter lands but rolls over – Endeavour Energy observer suffers head injury and brain damage – observer not wearing helmet – whether observer a “passenger” for purposes of Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – held he was not a “passenger” – liability of Endeavour Energy as employer – whether Telstra and Precision Helicopters liable to injured man – s.151Z Workers Compensation Act 1987 – claim by Precision Helicopters against Endeavour Energy for breach of contract – cross-claim by Endeavour Energy claiming indemnity under contract – s.151Z apportionment of responsibility as between Endeavour Energy (90%) and Precision Helicopters (10%) – Precision Helicopters successful in contract claim – claim in contract by Endeavour Energy rejected
JUDICIAL REVIEW – Local Court appeal – respondent undertook earthmoving work for appellant – whether reasons of Magistrate inadequate – scope of obligation to provide reasons supporting finding of fact – whether Magistrate erred in rejecting tender of surveyor’s report – interest.
APPEAL – erroneous fact-finding – whether appeal court can substitute its own findings – whether substantial miscarriage warranting retrial
DAMAGES – torts – negligence – motor vehicle accidence – future economic loss – past domestic care – future domestic care – challenges to assessment at trial
EVIDENCE – admissibility – opinion; expert report – assumptions – opinions based on measurements and calculations
EVIDENCE – witnesses – cross-examination – objection – rejection of cross-examination – whether topic of cross-examination covered by particulars in pleading
PROCEDURE – inadequacy of pleading – failure to particularise – no request for particulars – no notice before trial of objection to pleading – objection by ambush at trial procedurally unfair – refusal to grant adjournment to address amendment
TORTS – negligence – contributory negligence – challenge to findings of fact at trial – failure to address key elements of the comparison of responsibility of plaintiff and defendant
CRIMINAL LAW – conviction appeal – from judge alone trial – supply a commercial quantity of methylamphetamine – whether trial judge erred in finding independent evidence corroborative of evidence of key witness involved in criminal transaction – whether trial judge erred in failing to give warning – that corroboration was required before evidence of witness could be acted upon – Markuleski direction – whether reasons inadequate – whether conduct of trial judge rendered the trial unfair – alleged excessive intervention by trial judge in cross examination by defence counsel – critical comments made about counsel – defence counsel ultimately dismissed and withdrew from proceedings – whether verdict unreasonable and unsupported by the evidence.
CRIMINAL LAW – sentence appeal – application for leave – whether trial judge erred in approach to standard no parole period – whether insufficient weight given to mental health and other health issues of appellant – whether sentence manifestly excessive.
DEFAMATION – trial by judge alone – publication by email – limited number of recipients – imputations pleaded related to plaintiff’s suitability to be a member of the Police and Community Youth Clubs NSW Ltd – imputations conveyed – imputations defamatory – qualified privilege at common law – established – no malice – statutory qualified privilege – established – substantial truth – partially successful – triviality – rejected – republication in good faith – statement of claim dismissed – plaintiff to pay defendant’s costs
CRIMINAL LAW – Crown appeal – Criminal Appeal Act 1912, s 5F(3A) – accused charged with sexual intercourse without consent – Crimes Act 1900, s 61I – pre-trial evidentiary rulings – Criminal Procedure Act 1986, s 293(4)(a) – evidence of complainant’s sexual interest in a man other than accused – evidence irrelevant – whether tendency evidence – whether evidence of sexual experience or sexual activity – whether at or about time of commission of offence charged – evidence inadmissible
EVIDENCE – evidence of telephone conversation recorded pursuant to warrant – admissions – Evidence Act , s 90 – whether unfair to admit evidence – whether complainant acting as “agent of the State” – whether unfair derogation of accused’s right to exercise free choice to speak or be silent – whether conversation “functional equivalent of an interrogation” – “eliciting behaviour” – whether admissions made voluntarily
EVIDENCE – Evidence Act , s 137 – probative value of evidence – whether existence of alternative explanation relevant to assessment of probative value – facts in issue – Evidence Act s 137 contrasted with Evidence Act s 98 – whether credibility, reliability or weight of evidence relevant to assessment of probative value – Crown appeal allowed
CRIMINAL LAW – conviction appeal – sexual assault and other offences – applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours – applicant claimed intercourse was consensual – Notice of Intention to Appeal and Notice of Appeal filed long out of time – s 10(1)(a) Criminal Appeal Act 1912, r 3A Criminal Appeal Rules – whether sufficient prospects of success to warrant an extension of time – extension refused
CRIMINAL LAW – sentence appeal – sexual assault and other offences – applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours – sentencing judge determined that offences fell “well above the mid-range and up towards the high range of objective seriousness” – applicant sentenced to total term of imprisonment of 22 years with 17 years 6 months aggregate non-parole period – whether sentencing judge erred in determination of objective seriousness – whether sentencing judge erred in assessing totality and in accumulating sentences by failing to find sexual assaults formed one episode of criminality – whether sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences – whether sentence manifestly excessive – aggregate non-parole period reduced by 12 months – sentence otherwise confirmed
CRIMINAL LAW – appeal against conviction – whether trial judge’s failure to leave self-defence to the jury occasioned a miscarriage of justice – whether leave should be granted under the Criminal Appeal Rules, r 4.
CRIMINAL LAW – appeal against conviction – whether trial judge’s failure to explain the legal consequences of an accidental wounding occasioned a miscarriage of justice – whether leave should be granted under the Criminal Appeal Rules, r 4.
CRIMINAL LAW – appeal against conviction – whether trial judge’s summing up occasioned a miscarriage of justice – whether leave should be granted under the Criminal Appeal Rules, r 4.
CRIMINAL LAW – appeal – conviction – whether jury verdict is unreasonable or cannot be supported having regard to the evidence.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application for leave to appeal to Court of Appeal from interlocutory order of trial judge – whether appeal lies against ruling on evidence – matter not raised by parties.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – matters to be considered in granting leave to appeal interlocutory decision in criminal proceedings – whether decision attended by sufficient doubt to warrant appellate intervention – whether any substantial injustice would result from refusal of leave – whether grant of leave would inappropriately fragment trial process – whether exceptional circumstances justified grant of leave.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision in criminal proceedings – conclusions open to trial judge – decision not attended by sufficient doubt to warrant appellate consideration – no injustice would result from refusal of leave – grant of leave would inappropriately fragment trial process – no exceptional circumstances justifying grant of leave – leave to appeal refused.
CRIMINAL LAW – EVIDENCE – Circumstances in which evidence of events improbable to have happened coincidentally may be admitted – s 98 of the Evidence Act 2011 (ACT) – accused charged with three robberies with various similarities – Crown application for evidence of each robbery to be admissible as “coincidence” evidence in relation to the other robberies – defence application for separate trials if Crown application dismissed – whether probative value of coincidence evidence substantially outweighed any prejudicial effect of the evidence – nature of prejudice required to be considered – no unfair prejudicial effect identified – no risk of properly instructed jury reasoning inappropriately having regard to nature of coincidence evidence – evidence admissible on coincidence basis – no need to consider application for separate trials.
EQUITY – claim for damages for breach of fiduciary duty and obligation of confidence – solicitor and former client – fiduciary duty – scope and duration – before and after termination of retainer – obligation of confidence – whether there was a breach of confidence – whether solicitor misused confidential information of former client – circumstances in which information was imparted – limited retainer from former client – accepted that solicitor also retained by a different client with a potentially competing claim – information received to advance common objective of both clients to maximise recovery – information derived not exclusive to former client – whether allegations went outside the pleaded case.
ESTOPPEL – res judicata – judgments by consent – interlocutory orders – whether cause of action sued on in these proceedings merged into a judgment already entered – issue estoppel – whether orders necessarily decided the defendant breached his fiduciary duty or obligation of confidence.
TORT – duty of care – conspiracy by lawful and unlawful means.
COSTS – solicitor/client costs of previous proceedings – whether recoverable – whether estoppel arises – whether the issue of costs of previous proceedings was determined by costs orders made in those proceedings.
PROCEDURE – application for leave to appeal from summary dismissal of claim – claim foreclosed by High Court decisions with respect to immunity of witnesses and immunity of legal representatives from suit for conduct in the course of litigation – statement of claim revealing no arguable case – inappropriate vehicle for challenge to judgments of High Court
TORTS – negligence – alleged failure of court appointed expert in proceedings in the Family Court to disclose opinion contained in confidential letter to judge – failure of lawyers acting for children to disclose offer made by mother inconsistent with opinions expressed by expert in report – proceedings dismissed on basis of immunity of expert and lawyers with respect to such claims – matter in fact considered by trial judge in Family Court – Family Court orders subject to appeal to the Full Court of the Family Court – whether claim arguable
EVIDENCE – admissibility – whether evidence relevant – application of s98 Evidence Act 1995 (NSW)
EVIDENCE – admissibility of document – relevance
EVIDENCE – admissibility of medical reports – objection under s136 Evidence Act 1995 (NSW) – objection under r 31.26(5) Uniform Civil Procedure Rules 2005 (NSW – objection under s63 – whether witness unavailable to give evidence
EVIDENCE—Complaint evidence—Historical indecent assault on child—Whether complaint was extracted or induced—Held that complaint must be seen in context—Evidence admissible—Appeal dismissed
EVIDENCE—Complaint evidence—Historical indecent assault on child—Whether evidence unreliable—Inconsistent prior statements made by witness—Held that issues properly dealt with by way of jury directions and warning—Evidence admissible—Appeal dismissed
CRIMINAL LAW—Jury verdict—Appeal—Whether unreasonable with regard to evidence—Historic indecent assault on child—Inconsistent and allegedly unreliable evidence—Jury returned mixed verdicts across multiple counts—Held that jury verdicts reflect close scrutiny and careful consideration by jury—No reasonable doubt entertained—Appeal dismissed
EVIDENCE – Objection to admissibility of expert report on basis that expert opinion intruded impermissibly on the judicial function of the Court – Opinions provided included construction of contract clauses in contest – Objection upheld – Application by cross-respondent under s 144(1)(b) of the Evidence Act 1995 (Cth) to tender bundle of documents – Documents admitted into evidence.
CRIMINAL LAW – solicit to murder
EVIDENCE – Crown appeal – Criminal Appeal Act 1912, 5F(3A) – controlled operation – Law Enforcement (Controlled Operations) Act 1997 – Authority to conduct controlled operation – nature of controlled activity – undercover police operative – communications with accused recorded pursuant to Authority – whether evidence unlawfully obtained – Evidence Act 1995 , s 138 – whether Authority validly granted – whether activity within term of Authority – Code of conduct – evidence not unlawfully obtained – ruling excluding evidence vacated
HUMAN RIGHTS – Discrimination – minor with disability – educational services – consideration of direct and indirect discrimination before and after the 2009 amendments to the Disability Discrimination Act 1992 (Cth) – direct discrimination – whether aggrieved person treated less favourably in circumstances that are not materially different – whether failure to provide reasonable adjustments has the effect that person with disability is treated less favourably in circumstances that are not materially different – ground not made out – indirect discrimination – whether aggrieved person required to comply with requirement or condition with which a substantially higher proportion of persons without disability are able to comply – whether requirement or condition imposed upon an aggrieved person are unreasonable – reasonable degree of precision necessary in formulation – requisite precision absent – ground not made out – alleged breach of Disability Standards for Education – no contravention of standards – application dismissed
PRACTICE AND PROCEDURE – stay pending appeal – whether appeal bound to fail – balance of convenience – where limited information about appellant’s liabilities – offer to charge appellant’s home to secure judgment debts – offer to attempt to sell specified real property and pay proceeds into Court – undertaking not to dissipate assets and prosecute appeal expeditiously – stay granted on terms.
ADMINISTRATIVE LAW – prerogative orders – application for order in the nature of certiorari to quash decision of Consumer, Trader and Tenancy Tribunal (CTTT) – applicant absent from hearing before CTTT because of illness – whether CTTT proceedings lacked procedural fairness – discretionary nature of certiorari – whether order in nature of certiorari should be granted when Consumer, Trader and Tenancy Tribunal Act 2001 s 68 provides for rehearing – on rehearing applicant failed to address substantive merits of case – whether process is procedurally fair is to be determined by examining entirety of process including any rehearing
CRIMINAL LAW – conviction appeal – convictions for armed robbery – unreasonable verdict – admission of resemblance evidence – s 137 Evidence Act 1995 – circumstantial evidence – DNA evidence – fresh evidence
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage of justice – Misdirection or non-direction – Misdirection – Reasonable doubt – Examination of doubt suggested.
Graham v R  TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R  NTCCA 6; (2009) 27 NTLR 1, followed.
Aust Dig Criminal Law 
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage of justice – Misdirection or non-direction – Non-direction – Conduct of accused after two crimes committed – Possible inference of consciousness of some wrongdoing – Edwards direction not given.
Edwards v R  HCA 63; (1993) 178 CLR 193, distinguished.
Woon v R  HCA 23; (1964) 109 CLR 529, referred to.
Aust Dig Criminal Law 
Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Murder – Circumstantial evidence – Guilty verdict open to jury only if unchallenged expert evidence rejected.
Shepherd v R  HCA 56; (1990) 170 CLR 573; M v R  HCA 63; (1994) 181 CLR 487; Whitehorn v R  HCA 42; (1983) 152 CLR 657; Chamberlain v R (No 2)  HCA 7; (1984) 153 CLR 521; Morris v R  HCA 50; (1987) 163 CLR 454; Chidiac v R  HCA 4; (1991) 171 CLR 432, referred to.
Aust Dig Criminal Law 
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Generally – Police Commissioner to publish Manual containing orders, directions, procedures and instructions – Statutory provision requiring police officers to comply with “all orders in the Manual” and with “any lawful direction or lawful order given by a senior officer” – Whether breach of provision of the Manual other than an order is a contravention of an Australian law.
ADMINISTRATIVE LAW — Contraventions of reporting requirements under s 46A of Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995 (Cth) — no pecuniary penalties sought — whether declaratory relief should be granted when compliance subsequently achieved after proceedings commenced but prior to hearing — declarations granted — order made for reduced costs.
PROCEDURE – costs – costs of notice of motion – indemnity costs orders sought – departing from the general rule – not established – defendant to bear costs of notice of motion
ENVIRONMENT AND PLANNING -unauthorised structures and an accumulation of motor-related equipment and other material on the appellants’ property – respondent council issued notices to the appellants to demolish or remove these structures and a notice to remove and dispose of rubbish and refuse on the property – Council obtained orders of the Land and Environment Court enforcing the orders – no error established on appeal
INDUSTRIAL LAW – penalty hearing – admitted contraventions of the Fair Work Act 2009 (Cth) – contraventions of the North Goonyella Underground Mine Collective Enterprise Agreement 2012 – other relevant factors in determining penalty – relevance of history of trade unionism – adverse action against employees on the basis of trade union activity or exercise of workplace right
ADMINISTRATIVE LAW – application for judicial review of decision of Minister for the Environment to approve a project to construct and operate a new open cut coal mine – whether the Minister took into account an alleged disclosure of sensitive information by the New South Wales Government in making his decision – whether the conditions attached to the approval were sufficiently certain – whether the Minister failed to take into account the impact of the project on the Tylophora linearis plant species – whether s 139(2) of the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) is dependent on a jurisdictional fact – if a jurisdictional fact does exist, whether the jurisdictional fact is enlivened – if the jurisdictional fact is enlivened, whether the project is likely to have a significant impact on the Tylophora linearis plant species
EVIDENCE – whether direction under s 136 of the Evidence Act 1995 (Cth) should be made in respect of a submission made on behalf of the applicant to the Minister for the Environment in respect of the project – whether the direction is necessary to restrict inadmissible opinion evidence – whether the direction is necessary to restrict inadmissible hearsay evidence
INDUSTRIAL LAW – Whether appellant contravened s 343 of the Fair Work Act 2009 (Cth) – Meaning of ‘intent to coerce’ – Elements required to establish requisite intent – Whether deliberate avoidance of a legislative policy may constitute ‘illegitimate conduct’ – Operation of statutory presumption raised by s 361 of the Fair Work Act 2009 (Cth) – No contravention made out.
INDUSTRIAL LAW – Whether appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) against employees of an independent contractor – Construction of Item 4 of s 342(1) of the Fair Work Act 2009 (Cth) – Meaning of ‘independent contractor’ – Whether appellant ‘proposed to enter into a contract for services’ with independent contractor – No contravention made out.
INDUSTRIAL LAW – Whether the Fair Work Act 2009 (Cth) provides for the imposition of civil pecuniary penalties on the Crown – Whether the State of Victoria is a ‘body corporate’ within the meaning of that word in s 546(2) of Fair Work Act 2009 (Cth) – Inapplicability of the proposition in Cain v Doyle  HCA 38; (1946) 72 CLR 409 to determining amenability of the Crown to modern civil pecuniary penalties – Whether inappropriate as a matter of principle to impose a pecuniary penalty on the Crown – Crown amenable to civil pecuniary penalties – State of Victoria is a ‘body corporate’ in requisite sense.
PRACTICE AND PROCEDURE – Application by appellant to withdraw concession made at trial – Proposal to introduce “business records” within the meaning of s 69 of the Evidence Act 1995 (Cth) to remedy evidentiary lacuna – Application refused.
CONSTITUTIONAL LAW – Whether appellant exceeded the limits of Victorian State executive power by “adopting and promulgating” code and policy for the Victorian building and construction industry – Nature of executive policy-making – Discussion of implication of Williams v Commonwealth of Australia (2012) 248 CLR 156 for exercise of executive power by States – Capacity of the executive branch of a State to enter into contracts.
PRACTICE AND PROCEDURE – Declaratory relief sought pursuant to ss 21 or 23 of the Federal Court Act 1976 (Cth) that Victorian executive policies were invalid – “Adoption and promulgation” of policy did not give rise to justiciable controversy – No legal, equitable or statutory right affected – Relief refused.
PROCEEDS OF CRIME- Restraining order – Application for revocation – Forfeiture order sought – Commissioner seeking discovery – Court’s discretion – Privilege against forfeiture – Waiver – Proceeds of Crime Act 2002 (Ch) ss 19, 26, 47, 59 Supreme Court (Criminal Procedure) Rules 2008 O 6.09(3).
COMPETITION LAW – resale price maintenance – contraventions admitted – pecuniary penalties imposed
EVIDENCE – expert evidence – admissibility of evidence – compliance with r 31.23 of Uniform Civil Procedure Rules 2005 – whether discretion should be exercised under r 31.23(3) of UCPR – interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial – overriding duty of trial judge to ensure a fair trial – overriding purpose of UCPR
TAXATION – tax appeals – related criminal proceedings pending against the taxpayers – application for stay of tax appeals – judicial discretion – interests of justice – whether real risk of injustice in the criminal proceedings if tax appeals continued
ADMINISTRATIVE LAW – judicial review – whether juror in criminal trial ineligible – application to Sheriff to investigate – refusal by Supreme Court to consent to investigation – whether exercise of judicial or administrative function – whether ancillary to the exercise of judicial power – whether judge required to give reasons
CRIMINAL LAW – immunity of jury from investigation – effect on deliberations – power to investigate miscarriage in relation to conviction of federal offence
JURISDICTION – conviction for federal offence – request to NSW Sheriff to investigate improper conduct of juror – no appeal available against conviction – possible application under Part 7 of Crimes (Appeal and Review) Act 2001 (NSW) – whether exercise of federal jurisdiction
PROCEDURE – whether leave required to institute proceedings – leave not required under Felons (Civil Proceedings) Act 1981 (NSW), s 4
WORDS AND PHRASES – “improper conduct” – Jury Act 1977 (NSW), s 73A
EVIDENCE – on facts fresh evidence illegally obtained and in any event excluded by privilege
ADMINISTRATIVE LAW – cancellation of pilot licence – Briginshaw principle – fit and proper person – relevant considerations – adequate reasons
CO-OWNERSHIP – Appeal – Joint tenancy at law – Whether tenancy in common in equity – Four unities of possession, interest, time and title – Right of survivorship – Equity is equality – Equity’s dislike of joint tenancies – Intention of parties when property was acquired – Whether consideration given for half share – Whether joint tenancy severed at inception by agreement to distribute proceeds if property sold – Whether joint tenancy severed at time of sale of property by agreement to divide proceeds – Whether joint tenancy severed by conduct – Death of joint tenant before completion of sale of the subject land – Whether nett proceeds of sale of the subject land lay with executor of estate or with liquidator of corporate joint tenant – Attack on credit of witnesses – Whether judge should have found facts based upon testimony of witnesses – Duty of Court of Appeal when challenge made to findings based on credit – Weighing of findings of credit with findings on all relevant probabilities – Appeal dismissed.
PRACTICE AND PROCEDURE – Application to lead fresh evidence – Failure of appellant to serve subpoena on bank at trial – Whether there was a ‘high probability’ the fresh evidence would have produced the opposite result at trial – Application refused.
PRACTICE AND PROCEDURE – COSTS – Non-party costs order – Costs order made against liquidator personally – Application for leave to appeal costs order against non-party – House v The King  HCA 40; (1936) 55 CLR 499 – No error of principle – Application refused.
PRACTICE AND PROCEDURE – COSTS – Application for leave to appeal costs order – Offer of compromise made by respondent before appeal – Consequences of rejection – Whether respondent entitled to costs on an indemnity basis – Whether judge had reasonable regard to Calderbank offer – Whether judge erred in his analysis of Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No. 2)  VSCA 298; (2005) 13 VR 435 – Application dismissed.
CRIMINAL LAW – Appeal – Conviction – Six charges of incest of child between ages of four and six years – Evidence – VARE procedure – Division 5 of Part 8.2 Criminal Procedure Act 2009 – Leading questions – Role of interview process in investigation – Need to substantiate allegations and exhaust memory – Whether allegations voluntary or prompted – Whether procedure contaminated – Offender unable to object to procedure – Overriding duty of trial judge to ensure fair trial – Whether answers should be excluded at trial – Power to exclude – Sections 368, 374 and 381 – Whether complainant understood meaning of truth – Inconsistent verdicts – Inappropriate particular of ground that verdicts unsafe – Whether verdicts unsafe – Reliability of child complainant – R v Knigge  VSCA 94; (2003) 6 VR 181, R v NRC  VSCA 184; (1999) 3 VR 537; R v HRA  VSCA 56; (2008) 183 A Crim R 91; SLJ v The Queen  VSCA 193; Douglass v The Queen  HCA 34; (2012) 86 ALJR 1086 considered.
EVIDENCE – Child witness – Reliability – Whether particular circumstances of child complainant required warning as to reliability – No request for warning – Evidence Act 2009 s 165A.
CRIMINAL LAW – Ground of appeal asserting incompetence of defence counsel – Need to establish profound and flagrantly indefensible error not residing in logic or forensic purpose and of such importance as to give rise to miscarriage of justice – R v Birks (1990) 19 NSWLR 677, Naidu v The Queen  VSCA 14; (2011) 31 VR 212 considered.
CRIMINAL LAW – Sentence – Imprisonment for term of five years with non-parole period of three years and four months not manifestly excessive.
Procedure – Supreme Court procedure – Tasmania – Procedure under rules of court – Amendments – Whether learned magistrate erred in refusing appellant leave to amend defence.
STATUTORY INTERPRETATION – whether obligation to notify an Aboriginal legal aid organisation in s 23H(1) Crimes Act 1914 (Cth) must be performed prior to police questioning a person of Aboriginal or Torres Strait Islander descent – s 23H must be read in context of Div 3, particularly s 23G: Right to communicate with friend, relative and legal practitioner – obligation to notify in s 23H(1) directed towards choice of interview friend – no purpose to contacting Aboriginal legal aid organisation after arrested person has expressly and voluntarily waived right to have interview friend present
CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether admissions, made in course of police interview, evidence obtained in contravention of an Australian law or as a consequence of impropriety: s 138 Evidence Act 2011 (ACT) – limitations on questioning the accused found in s 23H(2), not in s 23H(1) – breach of s 23H(1) would lead to evidence being obtained following a contravention of Australian law, but not in contravention – questioning accused following waiver of right to interview friend in s 23H(2) not “quite inconsistent” or “clearly inconsistent” with requisite standard of propriety
CRIMINAL LAW – sentence – murder – guilty plea – mutilation – nature and seriousness of offence – accounts given to psychiatrists – alcohol use – aggravating factors – mitigating factors – record, character, re-offending and rehabilitation – planning – remorse – remorse not taken into account by way of mitigation – mental illness – offender’s personal circumstances – comparable cases – discount – no special circumstances – victim impact statements – sentence imposed
WILLS — Application for a grant of probate — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will — Medical evidence not sufficient to support a finding of a lack of capacity — Deceased had capacity according to the Banks v Goodfellow test to give instructions — Deceased had capacity according to the Parker v Felgate test to execute the will
WILLS — Application for a grant of probate — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will
CRIMINAL LAW – appeal – murder – whether error in failure to leave alternative count of manslaughter to jury – whether trial miscarried by reason of prejudice occasioned by Crown prosecutor – whether reversal of onus of proof – whether separate trial application should have been made in respect of perjury/false swearing charges – whether trial miscarried by failure of trial judge to discharge jury after Crown prosecutor made prejudicial remarks in opening address – whether error in leave granted pursuant to s 38 Evidence Act 1995 – whether verdict unreasonable and not supported by evidence – failure of trial counsel to request direction regarding delay in prosecution – all grounds rejected – appeal dismissed
PRACTICE AND PROCEDURE – stay pending appeal – interpretation of effect of interlocutory orders
CORPORATIONS – duties of responsible entity of managed investment scheme under s 601FC – duties of officers of responsible entity under s 601FD
STATUTORY DUTY TO ACT IN BEST INTERESTS OF MEMBERS – meaning of “best interests of members” – whether best interests of members is subjective or objective – duty of undivided loyalty to members of scheme – conflict of interests – conflict of interest and duty – duty to give priority to members’ interests –care and caution required where conflicts exist
STATUTORY DUTY TO EXERCISE CARE AND DILIGENCE – standard of care – standard of care for directors of a responsible entity acting as a professional trustee – failure to consider effects of amendment to scheme constitution – failure to consider whether legitimate reasons for amendment – failure to be satisfied as to power to make amendments – reliance on legal advice – reliance on unusual and uncertain legal advice – failure to comply with scheme constitution and Act – failure to properly consider effect of amendments on members’ rights and interests – failure to identify conflict of interests – failure to consider how to appropriately resolve conflicts – duty to prioritise members’ interests – obligation to revisit decisions previously made
STATUTORY DUTY NOT TO MAKE IMPROPER USE OF POSITION TO GAIN ADVANTAGE – meaning of “to gain” and advantage or “to cause” detriment – meaning of improper use
STATUTORY DUTY TO TAKE ALL REASONABLE STEPS TO COMPLY WITH SCHEME CONSTITUTION – scheme constitution contractually binding – scheme constitution not inconsistent with Act – scheme constitution qualifies statutory power to amend
MEMBERS’ RIGHTS – whether right to have scheme administered according to existing constitution is a “members right” under s 601GC – failure to consider members’ right to have scheme administered according to existing constitution – amendment invalid as outside power – whether amendments made outside power become valid once lodged with ASIC
RELATED PARTY TRANSACTION IN MANAGED INVESTMENT SCHEME – breach of s 208 (as modified) of responsible entity – involvement of officers of responsible entity in breach of s 208 – essential elements of the prohibition in s 208 – whether s 208(3) is an exception to the prohibition – officers’ honest belief that constitution contain provision allowing payment
LODGEMENT OF AMENDMENTS TO SCHEME CONSTITUTION – whether lodgement of consolidated scheme constitution is sufficient under s 601GC – whether lodgement of amendments themselves is required
COMPANY PROCEDURE – decision-making by meeting of directors – obligation to clearly express will in meeting of directors – obligation to ensure expression of will is clearly recorded – whether conduct amounts to or conveys assent to a resolution
DEEDS – when does an undated deed come into effect – intention of the parties to the deed – intention by reference to statutory framework
WORKERS COMPENSATION – coal miners – interpretation of Workers Compensation Act 1987, Sch 6 Pt 18 Cl 3(4) – respondent, who was employed by a supplier of mining equipment, injured in motor vehicle accident while travelling to coal mine to instruct miners in use of equipment – whether, at time of injury, respondent a worker employed “in or about a mine”
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Other cases – Dishonest misrepresentations as to consequences of confession – Discouragement from seeking legal advice – Pressure to confess.
CONTEMPT OF COURT – first respondent restrained by freezing order from using his assets other than for permitted purposes – first respondent’s assets defined to include assets of third respondent – separate order made restraining third respondent from disposing of its assets – first respondent applied moneys of third respondent for permitted purposes – whether orders unclear or ambiguous – whether first respondent knowingly interfered with administration of justice by assisting in breach of orders by third respondent