DEFENCE FORCE – appeal from Restricted Court Martial against convictions for committing an act of indecency – circumstantial evidence – whether Judge Advocate erred in failing to give proper direction – admissibility of evidence based on inference drawn by witness from observed facts – whether substantial miscarriage of justice – meaning of “indecency” – appeal allowed – conviction quashed – retrial ordered
DEFAMATION- plaintiff’s entitlement to “nail the lie”- use of evidence depends on admissibility- relevant to damages- giving of evidence itself a remedy
EVIDENCE- construction of s 76, s 78 and s 79 Evidence Act 1995 – whether unqualified plaintiff’s evidence of falsity of matter of expert opinion is admissible to prove its falsity or is limited to the plaintiff’s belief
EVIDENCE – Admissibility – Hearsay evidence – Business record exemption under s 69 of the Evidence Act 2008 (Vic) (“Act”) – Representation was hearsay evidence in business record – Whether representation must also comply with s 78 to be admitted – Opinion evidence – Section 78 of the Act provides that rule excluding evidence of opinion does not apply to certain “non-expert opinions” – Basten JA in Jackson v Lithgow City Council  NSWCA 136 - referred to and applied – Representation and “asserted fact” relied upon not defined – Precise authorship of business record not established – Inability of Court to apply statutory exceptions to hearsay and determine admissibility in such circumstances – Business record not admitted into evidence even though potentially relevant – Witnesses meeting notes contained opinion – Lithgow City Council v Jackson  HCA 36 referred to and applied – Meeting notes admitted for a limited purpose.
EVIDENCE – criminal trial on the charge of murder – question put by Crown to witness objected to by Defence – whether evidence about emotional state of the accused relevant – whether opinion evidence admissible as lay opinion under s78 Evidence Act 1995 (NSW) – whether question should be excluded under s137
CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – judge-alone trial – procuring drug trafficking – intention to procure – conduct effective to procure – trafficking offence actually committed – verdict of guilty to be entered.
CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – procuring drug trafficking – presumption of required intention or belief for trafficking offence arising from transporting of traffickable quantity not available against accused who procured the transporting – Criminal Code 2002 (ACT), s 604.
CRIMINAL LAW – PARTICULAR OFFENCES – drug trafficking – whether a person who transports drugs on behalf of another person expecting payment for the delivery “sells” the drugs to the other person – whether if a person who transports drugs on behalf of another person “sells” the drugs to the other person, the other person is protected from liability for an offence arising from procuring the transporting of the drugs by reason of an intention to “buy” the drugs – Criminal Code 2002 (ACT), ss 600, 602, 605.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Courses of Evidence, Statements and Addresses – whether prosecution should be permitted to open on one analysis of the facts and close on another analysis – whether defence prejudiced in cross-examination.
CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – evidence of co-offender’s conviction for offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), ss 91, 178.
CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – opinion of person about legal significance of actions not evidence based on what person saw, heard or otherwise perceived about a matter or event – evidence of co-offender’s opinion whether he committed offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), s 78.
TRADE PRACTICES – cartel conduct – bid rigging – requirement of a request for bids – requirement of a provision with the purpose of ensuring that one party bids but another party does not – requirement of a contract, arrangement of understanding – requirement that parties to bid rigging arrangement be in competition with one another – exception where arrangement concerns the acquisition of shares in a body corporate – conduct engaged in outside of Australia – accessorial liability – Competition and Consumer Act 2010 (Cth), Pt IV, Div 4
TRADE PRACTICES – misleading or deceptive conduct – misleading or deceptive conduct by silence – whether necessary to adduce evidence of reliance upon representations – conduct engaged in outside of Australia – accessorial liability – proportionate liability – Competition and Consumer Act 2010 (Cth), Sch 2, Pt 2-1
EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded
EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove
EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business
EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible
EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu  NSWSC 539; (1999) 47 NSWLR 309 should be followed
DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs
PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender
EVIDENCE – admissibility – expert evidence
Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Circumstances raising suspicion – Will prepared by person taking benefit.
Vernon v Watson  NSWSC 600; Nock v Austin  HCA 73; (1918) 25 CLR 519, referred to.
Aust Dig Succession 
Succession – Wills, probate and administration – The making of a will – Testamentary capacity – Soundness of mind, memory and understanding – Evidence – Onus of proof and weight of evidence – Will executed day before death.
Banks v Goodfellow (1870) LR 5 QB 549, Bailey v Bailey  HCA 21; (1924) 34 CLR 558, referred to.
Wills Act 1992 (Tas), s10.
Aust Dig Succession 
PRACTICE AND PROCEDURE – Evidence Act ss 69, 78 and 79 – evidence – opinion evidence – business records.
Evidence Act 1995 (NSW) – s 69, s 78, s 79
Criminal Law – Procedure – Information, indictment or presentment – Joinder – By statute – Same facts or series of offences of same or similar character – Sexual offences against a young person – Joinder of count of possession of child exploitation material – Whether offences of same or similar character.
R v Carr  TASSC 123; R v May  QCA 333, applied.
Aust Dig Criminal Law 
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency under uniform evidence law – Other cases – Sexual offences against a young person – Admissibility of evidence of possession of child pornography – Whether evidence of significant probative value – Whether evidence should be excluded.
R v PWD (2010) 205 A Crim R 75; CGL v DPP  VSCA 26; (2010) 24 VR 486, applied.
Aust Dig Criminal Law 
Criminal Law – Evidence – Propensity, tendency and coincidence – Admissibility and relevancy – Tendency and coincidence evidence under uniform evidence law – For particular purpose – Rebuttal of possible defence – Particular cases – Sexual offences against young person – Out of court statements by accused of abhorrence of sexual intercourse with young persons – Evidence of possession of child pornography admissible for purposes of context and credibility.
Aust Dig Criminal Law 
Criminal Law – Evidence – Relevance – Particular cases – Sexual offences – Statutory prohibition except with leave on evidence of the sexual experience of the complainant – Leave not to be granted unless Court satisfied the evidence has direct and substantial relevance to a fact or matter in issue – Meaning of “direct and substantial relevance.”
Evidence Act 2001 , s194M(2).
Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd  SASC 374; VOT v Western Australia  WASCA 102; (2008) 184 A Crim R 284, applied.
Aust Dig Criminal Law 
Criminal Law – Evidence – Relevance – Particular cases – Sexual offences against young person – Belief of accused as to age of complainant relevant to all counts – Offences committed in the course of complainant’s work as a prostitute – Relevance of evidence of other clients of complainant as to observations and belief about age.
Simmons (1931) 23 Cr App R 25; USA v Yazzie 976 F 2d (9th Cir 1992), considered.
Aust Dig Criminal Law 
Evidence – Admissibility – Opinion evidence – Section 78 of Evidence Act 1995 (NSW) (“Act”) provided that rule excluding evidence of opinion does not apply where “opinion is based on what the person saw, heard or otherwise perceived about a matter or event” and evidence “is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event” – Respondent found unconscious and injured in drain – Respondent conceded appellant only liable if respondent fell from vertical retaining wall – Ambulance record contained representation “? Fall from 1.5 metres onto concrete” – Whether representation was admissible under s 78 of Act as opinion that respondent fell from vertical retaining wall.
Evidence – Admissibility – Hearsay evidence – Business records exception under s 69 of Act – Representation was hearsay evidence in business record – Whether representation must also comply with s 78.
Negligence – Causation – Whether circumstantial inferences sufficient to establish causation.
Evidence Act 1995 (NSW), ss 69, 78.
Mr Ellicott objects to the last sentence of par 19 and the whole of par 20. The provisions of the Evidence Act 1995 (Cth) (“Evidence Act”) relevant to the objection are ss 55(1), 56, 76, 78 and 135:
EVIDENCE — character evidence in civil proceedings — whether evidence relevant — whether evidence admissible as opinion evidence — whether evidence admissible under tendency rule — whether evidence should be excluded on discretionary grounds
(CTH) Evidence Act 1995 (NSW & Cth) ss 55, 56, 76, 78, 79, 97, 135
Evidence – Tendency evidence – Relationship evidence – Hearsay – Opinion evidence – Admissibility – Evidence Act 2008 ss 59, 62, 65(2)(b) and (c), 67, 76, 78, 97, 135, 137.
EVIDENCE – hearsay – whether report by consultant engineer falls within business records exception – where document part of records of one of the defendant companies and copy kept by consultant – held: admissible under business records exception.
EVIDENCE – opinion – documents admissible under business records exception to hearsay rule contain opinions – admissibility of opinions dependent also on satisfying an exception to the opinion rule – non-compliance with expert witness code does not impact on admissibility as expert opinion – held: admissible under specialised knowledge exception.
(NSW) Evidence Act 1995 , s 69, s 78, s 79
DAMAGES – measure of damages – respondent negligently valued land for purposes of a loan – if properly advised the appellant would have sought to make an alternative loan – causation – loss of a chance – standard of proof – calculation of loss – whether capital loss and income loss should be segregated
EVIDENCE – opinion evidence – what constitutes opinion evidence
Evidence Act 1995 (Cth) ss 56(2), 76, 78, 135
Criminal Law – Procedure – Prosecution – Other matters – Preliminary proceedings orders – Whether order should be made – Question arising whether evidence admissible – Desirability of non-publication of evidence before trial – Whether more convenient and desirable to hear evidence of witnesses on voir dire and not in preliminary proceedings before justices.
Aust Dig Criminal Law 
Evidence Act 1995 (Cth) ss 74, 78, 79, 135, 144
APPEAL – remitter from High Court for rehearing of appeal – first hearing of the appeal proceeded on an inaccurate record of evidence – question mark symbol cut off in original appeal papers – effect of question mark on probative force of evidence
EVIDENCE – admissibility and relevancy – notes of ambulance officers – inference of fact as to cause of injury and surrounding circumstances – business records under Evidence Act 1995 (NSW), s 69(1) – hearsay rule did not apply – representation made by maker of the document on the basis of information indirectly supplied by someone who had or might be reasonably supposed to have had personal knowledge of the asserted fact
EVIDENCE – admissibility and relevancy – opinion evidence under Evidence Act 1995 (NSW), s 78 – opinion of underlying matter or event includes perceptions of the aftermath of an incident – meaning of the word “necessary” in s 78(b) – the section does not require absolute necessity
NEGLIGENCE – causation – evidence – whether on the balance of probabilities the appellant suffered his injuries as described in the ambulance officers’ notes
Evidence Act 1995 (NSW), s 60, 69(1), 76, 78, 135, 136, 137, 183
application for discharge of jury
 FCA 1141
EVIDENCE – admissibility of opinion – evidence of counterfeit goods.
TRADEMARKS – infringement of trademarks – whether accessories or spare parts covered by specification – whether adding material is, or altering, at trade mark avoids infringement – whether the respondents had an arguable defence.
PRACTICE AND PROCEDURE – application for summary judgment – trade mark infringement – no real or arguable defence or triable issue.
Evidence Act 1995 (Cth) ss 76, 78, 79
EVIDENCE – legal professional privilege – documents required to be produced by notice under Royal Commissions Act 1902 (Cth) – whether documents brought into existence for the dominant purpose of giving or obtaining legal advice – whether documents brought into existence in furtherance of fraud or improper purpose – waiver of privilege – imputed waiver – associated material waiver – whether privilege has been waived by disclosures made by applicant to Independent Inquiry Committee into the United Nations Oil-For-Food Program, Australian Government and royal commission
Evidence Act 1995 (Cth) ss 69, 78, 79, 135
Practice and Procedure
Lay statements of opinion
S.78 Evidence Act
If a witness’s “perception of a matter or event” is relevant, evidence of that perception is admissible; and if evidence of that person’s opinion is necessary to obtain an adequate account or understanding of his or her perception, then an opinion based on what that person saw, heard or otherwise perceived about the matter or event is admissible as exception to the opinion rule
There is a clear difference between on the one hand, experts called who were not in earlier years, in any way involved as contemporaneous witnesses and on the other hand, persons not qualified as S.79 experts, but who can give S.78 evidence of a contemporaneous nature as to their then perceptions.
EVIDENCE – admissibility and relevancy – whether expert evidence not admissible through risk of bias – CORPORATIONS – winding up – setting aside statutory demand – re-writing statutory demand under section 459H Corporations Act 2001 (Cth) – relationship between debt claimed in notice of demand, and re-written notice of demand
EVIDENCE – hearsay evidence of a person’s state of mind – whether able to be given by a file note which is not itself a business record – EVIDENCE – opinion evidence – whether opinion evidence able to be received under section 78 Evidence Act 1995 when contained in a file note which is not a business record
Negligence, personal injury, damages, evidence.
duty of care
Evidence Act 1995 (NSW) ss 55(1), 78
NEGLIGENCE – causation – evidence
EVIDENCE – evidence in negligence action – inference of fact from occurrence of damage and all the surrounding circumstances – note of ambulance officers –opinion evidence under Evidence Act 1995 (NSW), s 78
MEASURE OF DAMAGES (TORT) – damages for personal injuries – assessment – quantum recoverable – future economic loss – non-economic loss – loss of earnings and earning capacity – future care – past care
INTOXICATION – relationship between Civil Liability Act 2002 (NSW), s 50(2) and (3) – contributory negligenc
admissibility of evidence
armed robbery of bank
images of robber captured by bank’s security cameras
photo developed published in newspaper
evidence of recognition by appellant’s sister
Evidence Act, ss 76, 79, 137
Criminal law – sexual offences – identification issues – Evidence Act, s116 – rule 4 – directions as to meaning of “beyond reasonable doubt” – impact of media publicity upon fair trial – directions about suspect’s refusal to answer questions in ERISP – directions about lies – consciousness of guilt directions – complainant’s evidence as to belief of accused’s guilt in matter involving inference – juror misconduct – unauthorised view and experiment – admissibility of evidence of same – appropriate directions to juries prohibiting independent enquiries (D)
Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116
CRIMINAL LAW – murder – confessions and admissions – voluntariness – hostile witness – unreliability of witness – hearsay evidence – failure to call witness – reopening of Crown case – common purpose – comment of accused not giving evidence – separate trials – cross examination by co-accused – unsafe and unsatisfactory verdict – sentencing – life sentence – worst type of case.
Evidence Act 1995; ss 20; 38; 59; 60; 76 and 78; 84; 85; 90; 104; 135; 137; 138; 165
appeal against conviction
malicious wounding in company
whether evidence concerning film footage admissible
evidence on voir dire subsequently admitted
witness saw appellant from front view after incident ended but was unable to identify him from front view footage
witness did not see appellant from rear view but purported to identify him from that footage
whether evidence relevant
evidence of fact
evidence of opinion
witness identified clothing worn by appellant minutes before attack
witness identification by process of deduction and reference to his clothing
interpretation of video evidence
ad hoc expert
Evidence Act 1995, Part 3.3, s56, s76, s78, s79, s137
CRIMINAL LAW – Appeal – Against Conviction – s86(2)(b) of the Crimes Act 1900 – Detaining victim with intent to obtain advantage – Whether verdict unreasonable – Whether a circumstantial case on intent requires particulars of sexual intercourse to be separately supported by separate evidence
CRIMINAL LAW – Practice and Procedure – Whether complaint evidence properly admitted – Purpose for which evidence from a victim of attempted sexual assault as to what s/he believed was happening is admissible
Evidence Act 1995: s136, s76, s78, s60, s66
Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Sufficiency of evidence – Question for court – Appeal against conviction – Analysis of factual material beyond reasonable doubt.
Richardson v Shipp  Tas SR 105 and Lowe v Suckling 23/1983, followed.
Aust Dig Magistrates 
EVIDENCE – admissibility of document – valuer’s report – expert opinion – maker of the opinion not called to give evidence – whether valuation is a business record – whether part of the records of the relevant business – whether evidence admissible as an `opinion’
Evidence Act 1995 (Cth) s 59, 59(2), 69, 69(1)(a)(i), 69(1)(a)(ii), 69(1)(b), 69(2)(a), 69 (3), 69(5), 78, 78(a), 79, 111, 135, 135(a), 135(b), 183
EVIDENCE – Expert evidence – Anthropological evidence – Whether “basis rule” applies – Hearsay – Rule not apply to evidence of previous representation admitted because relevant for purpose other than proof of fact intended to be asserted by representation – Application of exception to evidence of anthropologists of statements made by Aboriginal persons about customs and practices.
Evidence Act 1995 (Cth) ss 59, 60, 76-80, 135-136
NEGLIGENCE – liability of manufacturer to end user – asbestos cement sheeting – in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres – work totalled about 12 hours over several days – extension to his sister’s house – no other exposure to asbestos dust and fibre apart from ordinary environmental exposure – in 2003 plaintiff became ill and mesothelioma diagnosed – Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet – on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available – held no duty of care – consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations – consideration of Trial Judge’s decision on need to print warning on sheets – admissibility of plaintiff’s evidence on how a warning would have affected his conduct.
Evidence Act 1995 (Cth) s.76
Evidence Act 1995 (NSW) ss.76, 77, 78 and 79
EVIDENCE – expert evidence – admissibility – Evidence Act 1995 (NSW), s 79 – car stolen despite engine immobiliser – expert had no experience in immobilisers – based opinion on internet materials and investigations – whether expert had relevant expertise – whether expert expressed relevant opinion – whether opinion based on expertise – whether opinion expressed in admissible form
JURISDICTION – appeal from Local Court under Local Courts (Civil Claims) Act 1970 (NSW), s 69(2) – whether appeal against the rejection of an expert report was an appeal “in point of law” – expertise a question of fact – whether alleged error material to the outcome
Evidence Act 1995 (NSW), ss 76, 77, 78, 79
Evidence – opinion – evidence of reliance in case of non-disclosure – evidence of what person reading prospectus would have done if disclosure had been made – whether such evidence is “opinion evidence” – whether excluded by “opinion rule” in s 76 of Evidence Act 1995 .
Evidence Act 1995 ss 76, 77, 78.
Evidence – Fact and Opinion – Opinion Rule – Lay opinions - Evidence Act 1995 ss 76(1) and 78.
 FCA 941
EVIDENCE – affidavits – objections – rulings
Evidence Act 1995 (Cth) ss 59, 72, 78, 78(a), 155, 156, 157, 170, 171, 172, 190(3)
Criminal law – Evidence – Relevance – Identification – Evidence of recognition by police officers of the accused in photographs from bank security cameras – Police officers in no better position than jury to compare appearance of accused with photographs - Evidence Act 1995 (NSW), s 55 – Whether evidence could rationally affect the assessment by jury of probability of the existence of a fact in issue – Whether admissible as opinion evidence.
Evidence – Relevance – Opinion or fact evidence - Evidence Act 1995 (NSW), s 55 – Evidence of recognition by police officers of accused in photographs from bank security cameras – Whether relevant – If relevant whether excluded as opinion evidence.
Evidence Act 1995 (NSW), ss 55, 76.
CRIMINAL LAW; Importation of commercial quantity of heroin contrary to s 233B Customs Act 1901
Opinion evidence at trial admissable and properly admitted pursuant to s 79 Evidence Act 1995
Appropriate directions given by trial judge in relation to Leung’s failure to give evidence
Appeal against convictions dismissed.
 FCA 1348
EVIDENCE – opinion evidence admissible to prove the truth of the opinion – whether Court should exercise discretion to limit use of evidence – unfair prejudice – procedural unfairness – evidence admitted for limited purpose of proving belief or intention – Evidence Act 1995 (Cth) ss 77, 136
Evidence Act 1995 (Cth) ss 60, 77, 78, 79, 136
no memory of assaults which were videoed
opinion as to whether she consented or appeared to consent irrelevant
s79 Evidence Act 1995
also rightly rejected as oppressive
substantial accumulation appropriate where substantive additional offence
ss 41, 78, 79 Evidence Act 1995
Torts – Negligence – Liability – Slip and Fall – Whether employer failed to provide a safe means of access between car park and offices – Whether stairs slippery – Whether expert evidence on slipperiness of stairs should have been accepted by trial judge – Discussion in obiter dicta about credibility of party-witness – Where employee injured whilst walking between roof-top car park and office – Where lack of previous slipping accidents on stairs
Evidence – Opinion – Expert evidence – Admissibility and use – Discussion of common law and statutory requirements – Need for expert witness to reveal factual and intellectual basis of opinion - Evidence Act 1995 (NSW), ss 76, 77, 78, 79 and 80 – D
Criminal Law – sexual offences
admissibility of contents of document when it cannot be found and goes to more than credit
admissibility of evidence going to complainant’s conduct and attitude towards accused
leaving of alternative verdicts of carnal knowledge
correct construction of Ss.61D, 61G and 78 of Crimes Act
directions as to complaint, need for direction that delay prejudiced accused
no danger of tendency reasoning
unique case where accused denied acts of indecency or intercourse but admitted other consensual intercourse, alternative case of consent not put
admissibility of “look of wanting” and exclusion
competence of trial counsel
sufficient evidence to support verdicts.