Category Archives: s. 037

George v Fletcher (Trustee) [2012] FCAFC 148 (25 October 2012)

COURTS AND JUDGES – Procedural fairness – bias – apprehended bias – association – prejudgment – adverse credit finding in earlier judgment – waiver

COURTS AND JUDGES – Procedural fairness – judicial intervention in the conduct of proceeding – whether judicial questioning of witnesses excessive – pejorative and inappropriate comments by federal magistrate – limits on one party’s rights to issue subpoenas and cross-examine witnesses

BANKRUPTCY AND INSOLVENCY – whether federal magistrate erred in finding that certain property was not held by the bankrupt on trust for her son – whether federal magistrate erred in treating certain chattels as having been returned to the bankrupt – failure to undertake necessary inquiry under Bankruptcy Regulations (Cth)

TRUSTS AND TRUSTEES – matters relating to registration and evidence in writing of purported trust – whether notation on reprints of the Trusts Act evidenced purported trust

PRACTICE AND PROCEDURE – Consent orders giving effect to a compromise between parties – whether it was open to federal magistrate to make an order inconsistent with consent orders

Ta and Nguyen v R [2011] NSWCCA 32 (4 March 2011)

CRIMINAL LAW – knowingly concerned in cultivation of large commercial quantity of cannabis plants – discharge of jury – possibly prejudicial evidence effectively withdrawn by trial judge from jury’s consideration – sentencing – aggravating factors in s 21A(2)(e), s 21A(2)(i) and s 21A(2)(n) of Crimes (Sentencing Procedure) Act – wrongly found by sentencing judge – these factors inherent in offence – applicants re-sentenced

Evidence Act – ss 37, 37(1)(c), Part 3.3

Temple v Powell (No 1) [2007] FCA 987 (2 July 2007)

[2007] FCA 987

EVIDENCE – mode of evidence at trial – civil penalty proceedings – whether affidavit evidence exhibiting transcripts of interview and statements given to investigators may be received – unsatisfactory form of some proposed evidence – discretionary questions – civil penalty proceedings – critical evidence of oral statements and conversations by union officials – evidence directed to be given on affidavit – affidavits to indicate time, place and nature of critical oral conversations – evidence of content of oral conversations and statements to be adduced orally in chief – annexure to affidavits of previous witness statements or interviews with investigators not permitted in exercise of discretion

Platcher v Joseph [2004] FCAFC 68 (26 March 2004)

[2004] FCAFC 68

BANKRUPTCY – failure to comply with a bankruptcy notice – appeal from single judge of the Federal Court – proceedings heard together – annulment proceeding – contention that sequestration order ought not to have been made because legal representatives not present and debt discharged – contention primary judge erred in rejection of evidence challenging the judgment debt upon which bankruptcy notice based – evidence in relation to compromise of debt equivocal – managing a corporation as a bankrupt irrelevant to exercise of discretion to annul bankruptcy under the Bankruptcy Act – no basis established for reaching different conclusion to primary judge – (CTH) Bankruptcy Act 1966 ss 153A, 153B – appeal dismissed.

CORPORATIONS – appeal from single judge of the Federal Court – proceedings heard together – disqualification proceeding – application by Australian Securities & Investments Commission (“ASIC”) to disqualify appellant from managing a corporation – managing corporation while insolvent without leave of the Court – activities comprehended in the concept of management – undischarged bankrupt disqualified from managing corporations – purpose of disqualification to protect public – members of the public suffered extensive losses – appellant banned from managing a corporation for 25 years – contention that appellant did not manage the corporation – no basis established to interfere with primary judge’s assessment of the evidence – (CTH) Corporations Act 2001 ss 206A, 206B, 206E – appeal dismissed.

PRACTICE AND PROCEDURE – unrepresented litigant – extent to which trial judge required to assist unrepresented litigant – extent of duty of trial judge to ensure fair trial – assistance appropriate in some circumstances – ensure advantage not conferred on unrepresented litigant – trial judge did not breach any duties to unrepresented litigant.

Evidence Act 1995 (Cth) s 37

R v S [2003] NSWCCA 122 (5 May 2003)

[2003] NSWCCA 122
Appeal – criminal law – aggravated sexual assault – whether evidence of motive to fabricate false allegation of sexual assault excluded – need for counsel to formulate lines of future questions clearly – Evidence Act, s44(2)(b) – what is requisite to enable court to be satisfied that the document being used to cross-examine a witness will be admitted – whether judge entitled to be informed that document is not that of witness being cross-examined before witness is confronted with it – whether unfair criticism of counsel caused trial to miscarry – damaging admission – attempt to explaint cut short – proviso. (ND)

Evans v R [2006] NSWCCA 277 (7 September 2006)

[2006] NSWCCA 277

appeal against conviction

armed robbery

whether items of clothing similar to those worn by robber found at accused’s home admissible

whether permissible for prosecutor to show witnesses items of clothing and ask them to comment upon them

whether permissible for Crown prosecutor to have accused put on item of clothing and repeat words of robber

rejection of alibi evidence because of absence of notice

failure of trial judge to give any or adequate reasons for rulings during trial

application of proviso

Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373 (24 November 2006)

[2006] NSWCCA 373

CONSTITUTION – s 109 inconsistency – State and federal law – Financial Transaction Reports Act 1998 (Cth) and  Evidence Act 1995  (NSW) – standard of proof

CRIMINAL PLEADINGS – duplicity – uncertainty – whether prosecution case involved ambiguity or uncertainty

EVIDENCE – admissibility – identification evidence – photoboard selection – whether probative value outweighed by danger of unfair prejudice

EVIDENCE – admissibility – character evidence – adverse character evidence from re-examination of witness inadmissible – whether inappropriate for prosecution to comment on failure by defence to call character evidence

EVIDENCE – admissibility – handwriting evidence – whether change in expert evidence rendered it inadmissible – whether each reason for reaching the expert conclusion must be referrable to specialised knowledge – whether evidence inadmissible because sample for handwriting analysis was obtained in manner prejudicial to defendant

EVIDENCE – unfair prejudice –  Evidence Act 1995  (NSW) – ss 135, 136, 137

EVIDENCE – opinion – inference derived from primary facts – Evidence Act 1995 (NSW) – ss 76, 79

INSIDER TRADING – pleadings – uncertainty and duplicity – whether evidence conformed to pleadings – meaning of “likely”

INSIDER TRADING –– elements of offence – definition of information – whether inference can be drawn from conduct – whether inference need to be the only reasonable inference available

INSIDER TRADING – elements of offence – requirements for general availability –whether information as a whole was generally available if particular aspects of it was generally available

INSIDER TRADING – elements of offence – definition of “purchase” and “securities” – whether purchase of option contracts within definition

JURY DIRECTIONS – whether Shepherd direction required – whether any information, apart from the particularised elements in indictment, was indispensable – meaning of “likely” in indictment

STRUCTURING TRANSACTIONS – Financial Transactions Reports Act 1998 (Cth) – standard of proof in s 31(1)(b)

Evidence Act 1995  (NSW), ss 4, 8, 18, 20, 37, 38, 76, 79, 135, 136, 137, 141