PRACTICE AND PROCEDURE Notices to produce Claim for public interest immunity Production and inspection initially objected to – State election – Change of government – Agreement between the parties – Executive government seeks leave to withdraw its claim for public interest immunity – Evidence Act 2008 (Vic), ss 9, 130 Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 29.10, 35.08.
APPEAL – whether magistrate erred in admitting evidence of intercepted telephone calls – whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply
EVIDENCE – Evidence Act 1995 (NSW) applies to applications for a forensic procedure – Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act – laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of – meaning of reasonable grounds for suspicion or belief
CRIMINAL – Subramaniam direction -whether obligation to give direction – Mental Health (Forensic Provisions) Act, s 21
CRIMINAL – Longman warning – judge alone trial – whether obligation to give warning – Evidence Act , s 165B
CRIMINAL – Murray direction – whether direction given was followed – judge alone trial – judgment must adequately expose reasoning process – justice to be seen to be done – mere incantation of warning and directions insufficient
CRIMINAL – conviction – whether verdict unsafe and unsatisfactory – whether open to judge to be satisfied beyond reasonable doubt as to the appellant’s guilt on the evidence – advantage of hearing and seeing evidence at trial
CRIMINAL – sentencing – failure to take into account mental state at time of offences -expressly eschewed by counsel at trial – lack of evidence as to mental state
CRIMINAL – sentencing – whether manifestly excessive
CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R  HCA 26; (1986) 160 CLR 392, applied; R v Abou-Chabake  NSWCCA 356; (2004) 149 A Crim R 417; Mickelberg v R  HCA 35; (1989) 167 CLR 259; R v Nguyen  4 VR 394, referred to.
JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher  2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.
EVIDENCE – Hearsay – Whether evidence of co-offenders’ out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R  HCA 22; (1961) 104 CLR 1; Ahern v R  HCA 39; (1988) 165 CLR 87, applied; R v Christie  AC 545, referred to.
EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn  VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure  VicRp 87;  2 VR 497; Jenkins v R  HCA 57; (2004) 79 ALJR 252, referred to.
MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas  VSCA 304; (2007) 18 VR 205; Brown v R  NSWCCA 395, applied; R v Vandine  1 NSWR 252; Johns v R  HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R  HCA 64; (2003) 219 CLR 1; Dupas v R  HCA 20; (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.
CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R  HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW)  HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld)  HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross  HCA 22; (1978) 141 CLR 54; Ridgeway v R  HCA 66; (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.
TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R  HCA 42; (2013) 303 ALR 42, applied; R v Apostilides  HCA 38; (1984) 154 CLR 563, referred to.
AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland  VicRp 100;  VR 849; Crofts v R  HCA 22; (1996) 186 CLR 427, applied.
DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors  VSC 3; Woolworths Ltd v Svajcer  VSCA 270, referred to.
VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.
SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R  HCA 57; (1998) 194 CLR 610, applied; Dietrich v R  HCA 57; (1992) 177 CLR 292, referred to.
Applications for leave to appeal against conviction and sentence dismissed.
CONFISCATION – Application for exclusion of interest from operation of restraining order – Applicant advanced $150,000 to brother-in-law (AT) acting on behalf of his company for purposes of completing development of four units owned by company – Unbeknown to applicant, AT involved in drug-trafficking – AT charged and units restrained – Restraining order varied to allow sale of units – Net proceeds of sale held by Assets Confiscation Office – Rudimentary hand-written agreements drawn by non-lawyer – Unchallenged affidavit evidence as to terms of agreements – Whether funds to be returned upon sale of units or from proceeds of sale or both – Whether Court entitled to have regard to affidavit evidence – Parol evidence rule – Whether agreements wholly written or partly written and partly oral – Whether applicant has an equitable interest in units or proceeds of sale – Whether applicant has a right over or in connection with units or proceeds of sale – Meaning of “right, power or privilege over, or in connection, with property” – Whether applicant entitled to order for payment from net proceeds of sale on basis that it would be “just” – Confiscation Act 1997 (Vic), ss 3, 18, 20, 22, 26.
 The parol evidence rule is regarded as a rule of substantive law, and not a rule of evidence; and it is not affected by the enactment of the Evidence Act 1995 (Cth): Owens v Lofthouse  FCA 1968 at  per Weinberg J. The same must be true in Victoria despite the passage of the Evidence Act 2008 (Vic).
CRIMINAL LAW – conviction appeal – supply of prohibited drug – credibility evidence – coincidence evidence
Client legal privilege – subpoenas
19 The plaintiff submitted that the initial response to progress payment claims was merely contract administration and fell within the ambit of administration of the trust. However, in light of the transmission of 5 May 2006 it is not possible to characterise the resolution of the claims as anything other than an anticipated or pending Australian proceeding. Albeit that by virtue of s 4, the Evidence Act applies to all proceedings in a Victorian court as defined by the dictionary, s 9 sets out that the Evidence Act does not affect the operation of common law “except so far as this Act provides otherwise expressly or by necessary intendment.” Accordingly, I am not constrained to conclude that disputes with respect to progress claims not heard in a Victorian court are necessarily excluded from either the common law principles of legal professional privilege nor the statutory principles of client legal privilege.
ADMINISTRATIVE LAW – revocation of security licence by Commissioner of Police – application for review of decision to the Administrative Decisions Tribunal (“ADT”) – ADT required by s 29(3) of Securities Industries Act 1997 (NSW) (“SI Act”) to ensure that it does not disclose the existence or content of “criminal intelligence” without approval of the Commissioner – Commissioner relied on criminal intelligence – whether ADT bound or empowered to adopt a “special advocate” procedure to represent the review applicant’s interests – whether the Commissioner’s refusal to approve disclosure of the criminal intelligence was amenable to judicial review – whether the Commissioner was bound to consider the review applicant’s request for approval to disclosure – powers and duties of the ADT to afford procedural fairness in face of confidentiality regime.
CONSTITUTIONAL LAW – whether s 29(3) of the SI Act is unconstitutional because it purports to deny the supervisory jurisdiction of the Supreme Court – whether the constitutional issue is premature – application of principles in Kirk  HCA 1; (2010) 239 CLR 531 – difficulties facing applicant for judicial review do not establish a denial of the supervisory jurisdiction
APPEAL – criminal – interlocutory appeal – power to take further evidence and make other judgment – appeal by way of rehearing – Criminal Appeal Act 1912 (NSW), s 5F(3A) – EVIDENCE – criminal trial – objection to the tender of recorded interviews of child – whether contaminated by suggestion – unfair prejudice – Evidence Act 1995 (NSW), s 137 – EVIDENCE – interview of child – whether affected by later hypnosis sessions – no reliance on post-hypnosis evidence – difficulties for post-hypnosis cross-examination – whether assessed under Evidence Act 1995 (NSW), s 137 or general law – PROCEDURE – criminal – objection to prosecution evidence – pre-trial hearing – Evidence Act 1995 (NSW), s 192A
Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A
EVIDENCE – Affidavit – Applicability of Evidence Act – Evidence about advice from solicitor given by annexing solicitor’s file note and commenting on it – Whether admissible.
Evidence Act 1995 ss.9, 11, 32, 34, 52
CRIMINAL ASSETS CONFISCATION – Restraining orders – Criminal Assets Recovery Act 1990 (NSW), s 10 – Whether primary judge erred in concluding affidavit of authorised officer disclosed reasonable grounds for the relevant suspicion – Whether primary judge erred in failing to give reasons in relation to orders
CONSTITUTIONAL LAW – Judicial power of Commonwealth – Ch III of the Commonwealth Constitution – Vesting of Federal jurisdiction in State courts – Whether s 10 invests Supreme Court with a power repugnant to or incompatible with its exercise of Federal judicial power – Whether the practical effect of s 10 is to require Supreme Court to make restraining order in ex parte proceedings
EVIDENCE – Whether certain paragraphs of affidavit improperly admitted – Essential to identify purpose for which evidence is admitted – Adducing evidence in interlocutory proceedings
PRACTICE AND PROCEDURE – Whether primary judge erred in entertaining proceedings without an identified defendant – UCPR 6.1A – Whether primary judge erred in entertaining proceedings in the absence of compliance with Schedule J of the Supreme Court Rules
WORDS AND PHRASES – “Reasonable grounds for suspicion” – “Reasonable grounds for belief”
AGENCY – hearsay representation by agent – not representation as to truth of statement – estate agents incorporate copy of incorrect survey diagram in brochure
COSTS – unnecessary charge of fraud which fails – plaintiff to pay costs of issue of fraud
MISREPRESENTATION – hearsay representation by agent – not representation of truth of statement
SPECIFIC PERFORMANCE – defence of innocent misrepresentation – purchasers’ failure to rescind no bar
TRADE PRACTICES ACT – s 51A – s 52 – misleading and deceptive conduct – hearsay representation by agents on behalf of principal – representation by principal – not representation by agents
VENDOR & PURCHASER – Conveyancing Act s 55 (2A) – repayment of deposit – loss of right to rescind for innocent misrepresentation no bar to order – discretion
CRIMINAL LAW – Appeal against conviction – whether murder trial miscarried if jury sought and found irrelevant, inadmissible and highly prejudicial material concerning the appellant.
UNFAIR TRIAL – conduct of co-accused – Appellant and co-accused tried together – whether conduct by co-accused’s counsel inflammatory, to the extent of being improper or unfair to the Appellant – refusal to admit evidence going to the credit of co-accused – failure to warn jury as to unreliability of the co-accused’s evidence against the Appellant – no direction requested under Evidence Act 1995 (NSW), s 165 – failure to give directions with respect to evidence of flight
SENTENCE – “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – balance of period of the sentence not exceeding one-third of the non-parole period
Evidence Act 1995 (NSW), ss 9, 102, 103, 112, 135, 138, 164, 165
Criminal law – Evidence – Admissibility – Prior inconsistent statement of accused – Whether prosecution can adduce evidence of prior inconsistent statement in cross-examination of accused – Whether sound recording of applicant’s interview wrongly admitted into evidence.
Criminal law – Evidence – Complaints – Failure to object to cross-examination – Whether trial judge required to rule where failure to object.
Criminal law – Procedure – Prosecution case closed – Whether tender of prior inconsistent statement of accused evidence in rebuttal – Prosecution not permitted to split its case.
Evidence – Criminal trial – Prior inconsistent statement of accused – Whether sound recording wrongly admitted into evidence in rebuttal of prosecution case – Whether tender of sound recording impermissible attempt to split prosecution case – Complaints – Failure to object to cross-examination – Whether trial judge required to rule despite failure to object.
Evidence Act 1977 (Q), ss 18, 101, 130.
Evidence – Burden of proof, presumptions, and weight and sufficiency of evidence – Presumptions – As to scientific instruments – Accuracy of speedometer.
Avins v Garvey  WASCA 415, Re Appeal of White (1987) 9 NSWLR 427, followed.
Aust Dig Evidence 
Evidence – General – Judicial notice – Matters not requiring proof – Locality and boundaries – Matters of common knowledge.
Avins v Garvey  WASCA 415, followed
Aus Dig Evidence  and 
 FCA 386
EVIDENCE – hearsay market research reports – whether received as proof of truth of contents – whether discretion under s 136 of Evidence Act should be exercised
Evidence Act 1995 (Cth) ss 9, 60, 77, 136
EVIDENCE – Privilege – Legal professional privilege or client legal privilege – Exceptions – Whether displaced in protective proceedings – Opinion evidence – Whether admissible if based on privileged communications – Protected reports
COURTS AND JUDGES – Appeal – Objection to evidence not taken below – Whether can be taken on appeal
PROFESSIONS – Lawyers – Duties to client – Privilege – Duty of confidence – Conflict of interests – Lawyer believes client incapable of giving rational instructions – Whether lawyer can take protective proceedings against client – Whether lawyer can use or disclose confidential information in such proceedings. D.
Evidence Act 1995 ss.4, 9, 119-122, 126A, 126B, 132, 134, 135
EVIDENCE – expert opinion evidence – whether defendants should be permitted to cross-examine expert on voir dire – whether evidence adduced on proposed voir dire would be evidence in proceeding generally, or only when tendered and received after voir dire – whether discretions under ss 135 and 136 of Evidence Act 1995 (NSW) should be exercised in defendants’ favour before commencement of witness’ evidence on voir dire
Evidence Act 1995 (NSW) ss 9, 56, 135, 136, 189
Submission of questions of law pursuant to s 5A(2) of Criminal Appeal Act
questions concerned the interpretation of R v Tillott and effect upon it of Evidence Act 1995 (NSW)
Held, R v Tillott laid down advisory guidelines not mandatory rules of exclusion
not necessary to answer other questions.
MIGRATION – judicial review – Refugee Review Tribunal – nature of proceedings before Tribunal – burden of proof – obligation to rationally consider probative evidence
EVIDENCE – whether Refugee Review Tribunal is a court for purposes of the Evidence Act 1995 (Cth) – effect of ss 8 and 9
Evidence Act 1995 (Cth) ss 8(1), 9(1), 150
In clauses 9(1) and (2) of Pt 2 of the Dictionary “a law of the Commonwealth” is defined to be a written or unwritten law of the Commonwealth and an “Australian law” (which according to the definition in Pt 1 includes the law of the Commonwealth) is also defined to be a written or unwritten law.
Most of the limbs of each definition of federal court and Australian court refer to an actual court. They can have no application to the Tribunal for in no sense is it a court. But each definition includes as a court a body that is not in fact a court. It is to these parts of the definitions to which I must now refer.
The Tribunal will be an Australian court if it is “a body that, in exercising a function under an Australian law, is required to apply the laws of evidence “and it will be a federal court if it is a body that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” However, the Tribunal is not such a body because s 420(1) of the Migration Act provides that the Tribunal is “not bound by … rules of evidence”. This is sufficient to take the Tribunal outside those limbs of the definition of Australian court and federal court just mentioned.
In arriving at this conclusion I have ignored the difference in language between s 420(1) which provides that the Tribunal is not bound by the rules of evidence and the definitions which refer to a body that is required to apply the laws of evidence. I do not regard this difference in expression as material. Each expression is apt to refer to the same subject namely matters that are or are not admissible in a proceeding and the method by which those matters are placed before a decision-maker: see Sopinka Lederman & Bryant, “Laws of Evidence in Canada” (1992 Butterworths) at p 1, and Halsbury’s Laws of England (4th ed) vol 4 para 1.
Further, I do not regard the fact that the Tribunal is obliged to observe certain rules that are sometimes called rules of evidence as affecting my conclusion. The rules that I have in mind are the various privileges that may be relied upon to exclude evidence being led before the Tribunal. The privileges are legal professional privilege, the privilege against self incrimination and what was once referred to as Crown privilege but is now known as public interest immunity. While each of these privileges is commonly regarded as part of the rules of evidence, they have application to a proceeding before the Tribunal not because they are rules of evidence but because they are fundamental principles of the common law that are capable of being exercised not only in curial proceedings but in administrative and investigative proceedings as well: see Baker v Campbell  HCA 39; (1983) 153 CLR 52 with regard to legal professional privilege, Pyneboard Pty Ltd v Trade Practices Commission  HCA 9; (1983) 152 CLR 328 and Controlled Consultants v Commissioner for Corporate Affairs  HCA 6; (1985) 156 CLR 385 with regard to the privilege against self incrimination and Science Research Council v Nasse  AC 1028 and Middendorp Electric Co Pty Ltd v Law Institute of Victoria  2 VR 313 with regard to public interest immunity.
The result is that the Tribunal does not fit within any limb of the definition of federal court. However, the Tribunal is a body that is authorised by an Australian law, the Migration Act, to hear, receive and examine evidence: see the discussion of the powers and functions of the Tribunal earlier in these reasons. It follows that the Tribunal is an Australian court in accordance with para (e) of the definition of that court.
But it does not follow from the fact that the Tribunal is an Australian court that proceedings before it are governed by the tabled provisions in s 5(1). The effect of s 8(1) of the Evidence Act must be considered. Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act. The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act. The question thus raised is whether s 8(1) prevents the tabled provisions in s 5(1) having application to proceedings before the Tribunal.
The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. But what if there is no direct inconsistency. Some indication of how s 8(1) is to operate in that circumstance may be gathered from s 9(1) which provides that:
“For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”
When s 8(1) and s 9(1) are considered together the legislative intention that is disclosed is that where a court, whether it is an Australian court or a federal court, is not required to observe the rules of evidence the Evidence Act will not operate so as to impose that obligation. Here again reference should be made to s 420(1) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence. If a proceeding before the Tribunal was governed by ss 150 the Tribunal would be required to receive a particular document as part of the evidence in a proceeding before it when it would not be required to do so if s 420(1) was the sole provision that applied. Thus there is, in a general sense, an inconsistency between the two provisions. It follows, in my opinion, that s 8(1) renders s 5(1) inapplicable to proceedings before the Tribunal.
PATENTS – appeal under s 60(4) of the Patents Act 1990 (Cth) against the Commissioner’s decision on an opposition to a grant of patent – whether tender of evidence as to the Commissioner’s decision, including the material on which it was based, inadmissible in the trial in this Court – whether Evidence Act 1995 (Cth) applies to such evidence – nature of opposition proceeding before the Commissioner – nature of appeal under s 60(4) of the Patents Act – effect of s 160(a) of the Patents Act – effect of O 58 r 8 of the Federal Court Rules – admissibility of evidence at the trial governed by Evidence Act 1995 (Cth)
EVIDENCE – admissibility of evidence as to the Commissioner’s decision and the material on which it was based – whether evidence as to the Commissioner’s decision irrelevant – whether evidence as to the material on which the Commissioner’s decision was based inadmissible as hearsay – evidence about the Commissioner’s decision relevant as jurisdictional fact and as the opinion of a person with technical expertise – this evidence and material on which the Commissioner’s decision was based is admissible under the Evidence Act 1995 (Cth)
PRACTICE AND PROCEDURE – whether leave to appeal against evidentiary ruling ought to be granted – case raises a matter of public importance – leave granted
Evidence Act 1995 (Cth) ss 4(1), 8(1), 9(1), 48(1)(b), 56(2), 59, 60, 76, 77, 79, 140, 190(3)(b)
Criminal Law – Admissibility of evidence of knowledge of co-offender and offender – statements made out of Court – whether hearsay – purpose for which evidence admitted – circumstantial evidence directions – directions as to use of co-offender’s evidence – no request for warning – sentence not excessive.
EVIDENCE – cross-examination on documents not tendered – third party documents and prior representations of the witness – transcripts of examinations including transcripts that could not be tendered in penalty proceedings – discretionary considerations
Evidence Act 1995 (NSW), ss 9, 26, 43, 44, 192
Evidence – Criminal trial – Sexual assault – Evidence of recent complaint – Hearsay evidence – Whether evidence of recent complaint relevant to facts in issue – Relationship between common law and Evidence Act 1995 (NSW) – Whether use of evidence unfairly prejudicial or misleading or confusing – Limiting use of evidence – Direction to jury.
Criminal law and procedure – Appeal – Criminal trial – Objection not taken at first instance – Whether leave to argue should have been granted.
Words and phrases – “relevance”, “unfairly prejudicial”.
Evidence Act 1995 (NSW), ss 9, 55, 56, 59, 66, 136.