Category Archives: s. 102

National Australia Bank Ltd v C & O Voukidis Pty Ltd (No. 2) [2015] NSWSC 258 (20 March 2015)

EVIDENCE – documents – confidential documents client legal privilege – defendant swears affidavit concerning advice by former solicitor – affidavit served for purpose of interlocutory motion to amend pleadings – affidavit not relied on at interlocutory hearing – plaintiff issues subpoena to obtain documents associated with advice – claim for privilege – refusal to allow defendant to litigate issues on which advice given – whether privilege waived – whether documents can be relied on for matters of credit only – privilege not waived

Vizovitis v Ryan [2014] ACTSC 243 (19 September 2014)

COSTS – costs between solicitor and client – agreement as to costs – whether fair and reasonable – Legal Practitioners Act 1970 (since repealed) – onus on solicitor to satisfy court that agreement fair and reasonable – whether hourly rate excessive – whether benefit to solicitor and disadvantage to client established – agreements set aside – measure of client’s loss

R v Smith [2014] NSWSC 768 (20 May 2014)

CRIMINAL LAW – procedure – witnesses – cross-examination – CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; s 103(1) – leave to adduce evidence in cross-examination of criminal convictions; application for – otherwise contrary to Evidence Act 1995; s 102 – credibility rule – five dishonesty offences – reliability and credibility of witness

McDonald v The Queen [2014] VSCA 80 (1 May 2014)

CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applications granted and appeals heard instanter and dismissed– Three charges of maintaining a sexual relationship with a child under 16 – Total effective sentence of 11 years and nine months’ imprisonment with a non-parole period of nine years – No error by trial judge in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 – ‘Occasions’ were sufficiently particularised – No error by trial judge in ruling that evidence that applicant accessed child pornography was admissible to refute applicant’s statements in police interview that he was only interested in adult women – No error by the trial judge in admitting a video recording of a pretext conversation between the complainant and the applicant – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 ss 47A, 70(1).

R v ST (No 2) [2014] ACTSC 52 (28 February 2014)

CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or exclude Evidence – Evidence of sexual activities of the complainant admissible only by leave of the Court – Exceptions to the credibility rule – Application to admit evidence of cross-examination of the complainant in relation to allegations by the complainant that she was the subject of the same sexual activities committed by her paternal grandfather as those she claimed she had been subjected to by her father – Leave given to adduce evidence of the complainant about alleged sexual activities with her paternal grandfather

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 (28 March 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal to Appeal Division of ACT Civil and Administrative Tribunal – appeal removed into Supreme Court – nature of appeal in Supreme Court.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – whether permitting Law Society to amend charges deprived appellant of procedural fairness – whether Law Society was a model litigant – whether Law Society misled ACT Civil and Administrative Tribunal about nature and significance of amendments – no breach of procedural fairness – no misleading of Tribunal – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – admissibility of credibility evidence arising in cross-examination of appellant about peripheral aspects of separate matter also subject of charges brought by Law Society – admissibility of prejudicial credibility evidence – whether credibility findings should be set aside – whether ACT Civil and Administrative Tribunal misunderstood cross-examination – whether Tribunal misled by Law Society about significance of cross-examination – whether Law Society sought to mislead Supreme Court about significance of cross-examination – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – challenge to factual findings of ACT Civil and Administrative Tribunal – whether evidence to support factual findings – whether Tribunal obliged to accept appellant’s evidence of his state of mind at relevant times – whether Tribunal inconsistent in treatment of witnesses cross-examined without access to relevant documents – no error in Tribunal’s conclusions – appeal dismissed.

R v Abdallah (No. 5) [2014] NSWSC 233 (13 March 2014)

EVIDENCE – admissibility – credibility or reliability – whether photographic evidence of tattoos admissible for the purposes of bolstering witness’s credibility in terms of what may be observed from certain vantage points; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE – prejudicial nature of evidence – whether probative value outweighs unfair prejudice to the accuse

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Matthews v SPI Electricity & Ors (Ruling No 27) [2013] VSC 483 (6 September 2013)

EVIDENCE – Notice to produce – Document sought concerning inspection of assets conducted five years after the asset inspection at issue at trial – Principles applicable – Whether “on the cards” that documents would be probative to the Plaintiff’s case – Test applicable to notice to produce lower than that applicable to the question of admissibility at trial – Documents to be produced.

Doolan v R [2013] NSWCCA 145 (3 July 2013)

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence

Dymocks v Capral [2013] NSWSC 130 (20 February 2013)

EVIDENCE – admissibility – where letter written by party’s solicitor to insurer – party not the author of the letter and made no representations by or in it – letter not admissible to prove the truth of the the previous representations made by its author – letter not admissible to prove suggested admission by party.

DPP v Leys & Leys [2012] VSCA 304 (12 December 2012)

CRIMINAL LAW – Crown appeal against sentence – Whether combination of Community Correction Order and suspended sentence of imprisonment in excess of three months was unlawful – Section 44 of the Sentencing Act 1991 – R v Young (1995) A Crim R 70, considered – Crown appeals allowed – Whether sentences of immediate imprisonment should be imposed – Respondents at liberty – Process of rehabilitation – Discretionary considerations – DPP v Karazisis [2010] VSCA 350; (2010) 206 A Crim R 14, applied.

STATUTORY INTERPRETATION – Commencement of Community Correction Order regime – Section 37 of the Sentencing Act 1991 – Pre-requisites to making a Community Correction Order not applicable to a sentence until whole of Sentencing Amendment (Community Correction Reform) Act 2011 in operation – Illogical, irrational and unintended consequences of a literal construction – Principles governing the ‘reading in’ of words into a statute – Wentworth Securities Ltd v Jones [1980] AC 74, Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, Cooper Brookes (Wollongong) Pty v FCT (1981) CLR 297, considered – Whether only ‘reading down’ permissible – Concept that words ‘actually used’ in the statute must be ‘reasonably open to such a construction’ discussed – Aspects of R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681, R v PLV (2001) 51 NSWLR 736, disapproved.

CHARTER – Whether Charter required the Court to depart from literal interpretation – Compatibility with the right against arbitrary detention – Compatibility with the right against greater penalties being imposed than applied at time offence committed – Charter of Human Rights and Responsibilities, ss 21(2), 27(2), 32.

ATV v Buxton [2012] TASSC 83 (11 December 2012)

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Assertion that finding was unsafe and unsatisfactory.

Kelly v O’Sullivan [1995] TASSC 72; (1995) 4 Tas R 446, Dixon v Lusted [2010] TASSC 16, referred to.

Aust Dig Magistrates [270]

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Sufficiency of reasons.

Phillips v Arnold (2009) 19 Tas R 21, referred to.

Aust Dig Magistrates [274]

Dale v Clayton Utz (a firm) [2012] VSC 577 (29 November 2012)

LEGAL PRACTITIONER – Barrister – Application to restrain senior counsel from acting for defendant in this proceeding – Application brought under inherent jurisdiction and to enforce duties of confidence and loyalty – Whether leave to cross-examine deponents required – If so, whether leave should be granted – Leave granted on a limited basis

Ewin v Vergara [2012] FCA 1240 (9 November 2012)

PRACTICE AND PROCEDURE – ruling prior to trial on admissibility of evidence of proposed witnesses –
s 192A of the Evidence Act 1995 (Cth) – evidence going to the credibility of another witness inadmissible unless falls within stated exceptions – reliance upon exception in s 106 of Evidence Act premature – s 108C exception in respect of expert evidence only applies where the expert evidence deals with the capacity of the other witness to give credible evidence – proposed witness evidence inadmissible – witnesses not to be called without leave of the Court.

Evidence Act 1995 (Cth) ss 102, 106, 108C, 192A

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

Scott Alan May v Regina [2012] NSWCCA 111 (31 May 2012)

CRIMINAL LAW – appeal – conviction – evidence – whether verdict unreasonable on evidence
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – whether misdirection in summing up to jury – whether extended joint criminal enterprise alternative should have been left to jury
CRIMINAL LAW – appeal – conviction – whether misdirection in summing up to jury – whether evidence capable of verifying key witness’s account
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – whether manslaughter alternative should have been left to jury

Bateson v Chief of Army [2012] ADFDAT 3 (25 May 2012)


DEFENCE AND WAR – appeal – charges of insubordination – grounds – convictions unreasonable and cannot be supported with regard to the evidence – wrong decisions on questions of law made – material irregularity – convictions unsafe and unsatisfactory – found – no material error in conduct of trial – no error in taking into account uncharged acts – no irregularity found – mistake of fact ground – possible defence not taken into account at trial – appellant deprived of chance of acquittal – miscarriage of justice occurred – appeal allowed – convictions quashed – no retrial ordered

DPP v Kocoglu [2012] VSC 185 (9 May 2012)

CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.

Li v Chief of Army [2012] ADFDAT 1 (16 March 2012)

Defence Force Discipline Appeal Tribunal

MILITARY LAW – leave to appeal sought – granted – Restricted Court Martial – charges – creating a disturbance by causing a confrontation – service offence – whether charge not known in law – not a service charge – not capable of founding jurisdiction – ground failed – whether conviction bad for duplicity – series of acts may constitute course of conduct – ground failed – whether conviction wrong in law – whether no direction given – whether fault element to charge – physical element – intention – recklessness – direction involved no error – no miscarriage – ground failed – whether requirement for direction as to onus of proof – element of charge – no error – whether erroneous direction as to meaning of “disturbance” – whether disturbance justified by conduct of other officer involved – disturbance correctly characterised – other officer’s conduct not relevant to charge – ground failed – whether first charge oppressive when combined with second charge – charges were preferred in the alternative – not oppressive to prefer charges in the alternative – no exhaustive statement of offences which may be regarded as alternatives under Defence Force Discipline Appeal Act – ground failed – whether failure to direct that potential cause of confrontation was a comment made previously by officer involved in confrontation with appellant – whether comment made contrary to Racial Discrimination Act – giving rise to consequential right to protest – duty on Commonwealth to prevent such conduct – no consequential right created – no duty imposed on Commonwealth or other person – ground failed – whether evidence should have been called as to cause of confrontation – evidence was before the court at trial – whether evidence incorrectly ruled as irrelevant and inadmissible – whether questions asked by defending officer were irrelevant and should have been disallowed – no substance to grounds – whether defending officer affected by apprehended bias – whether discretion in relation to adjournment application wrongly exercised – whether Judge Advocate should have disqualified himself – complaint amounted to appellant’s dissatisfaction with rulings on adjournment application – no bias discerned – ground failed – whether ruling of inadmissibility with respect to evidence going to credit of officer in error – ruling correct – ground failed – whether error in not providing Jones v Dunkel direction in relation to failure to call particular evidence – witness was unavailable – evidence supportive of prosecution – no proper basis to infer otherwise – ground failed – whether remarks made by Judge Advocate gave rise to actual or apprehended bias – no complaint made with respect to bias at trial – no rulings the subject of complaints alleged to be tainted by error – no reasonable observer could have apprehended the Judge Advocate might not bring an impartial mind to the resolution of the issues – ground failed – procedural defect in original charge sheet – said to give rise to want of delegation – no failure to properly exercise power of delegation – did not render trial nullity – ground failed – whether conviction unsafe and unsatisfactory by virtue of all matters raised above – evidence sufficient to conclude beyond reasonable doubt that service offence committed by appellant – ground failed – appeal dismissed

DPP v Polutele [2011] VSC 223 (26 May 2011)

CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements – Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R [1988] HCA 43; (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act – Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.

Knowles v Victorian Mortgage Investments Limited & Anor [2011] VSC 611 (20 December 2011)

CONSUMER CREDIT – Application of the National Consumer Credit Code 2011 – Whether loan for business and investment purposes – Rafiqi v Wacal Investments Pty Ltd (1998) ASC 155-024; Linkenholt Pty Ltd v Quirk [2000] VSC 166; Dale v Nichols Construction Pty Ltd [2003] QDC 453; Bank of Queensland v Dutta [2010] NSWSC 574; Brott v Shtrambrandt & Ors [2009] VSC 467 – Application for relief under section 76, 77 and 78 of the National Consumer Credit Code 2011 for loan application fees – West v AGC (Advances) Ltd (1986) 5 NSWLR 610.

C M G v The Queen [2011] VSCA 416 (9 December 2011)

CRIMINAL LAW – Conviction – Committing an indecent act with a child under 16 – Taking part in an act of sexual penetration with a child under 16 – Reliability of evidence given by child witnesses – Whether trial judge when summarising the defence closing submissions erred in referring to material not in evidence concerning the reliability of child witnesses – Status of the comments as directions of law – R v Barker [2010] EWCA Crim 4 discussed – Appeal allowed.

Tasmania v Martin (No 2) [2011] TASSC 36 (23 June 2011

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 [2003] TASSC 123; R v May [2007] QCA 333, applied.

Aust Dig Criminal Law [3075]

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 [2010] VSCA 26; (2010) 24 VR 486, applied.

Aust Dig Criminal Law [2782]

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 [2784]

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 [2002] SASC 374; VOT v Western Australia [2008] WASCA 102; (2008) 184 A Crim R 284, applied.

Aust Dig Criminal Law [2675]

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 [2675]

Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 (22 August 2011)

INDUSTRIAL LAW – unlawful industrial action – whether there were contraventions by union officials – liability – whether breach of s 38 Building and Construction Industry Improvement Act 2005 – whether breach of Collective Agreements.
PRACTICE AND PROCEDURE – statement of claim – sufficiency of pleadings.

Evidence Act 1995 (Cth) ss 102, 106, 140(2), 190(3)

Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 (3 June 2011)

PRACTICE AND PROCEDURE – whether leave to call a witness should be granted – witness sought to be called is counsel in the proceeding – application made mid-trial – Court’s power to control the calling of witness evidence – relevance of case management principles and s 37M of the Federal Court of Australia Act 1976 – whether a legitimate forensic purpose exists for the calling of the evidence – test of apparent relevance – need for applicant to demonstrate an identifiable basis to support a reasonable likelihood that evidence is available that might assist the resolution of a fact in issue – balancing process applicable where legitimate forensic purpose exists – whether strength of forensic purpose and its importance to the issues to be determined is outweighed by prejudice, delay and disruption to trial – application dismissed

Evidence Act 1995 (Cth) ss 55, 102, 106(2)(c)

Dodge v Snell [2011] TASSC 19 (21 April 2011)

Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Other cases – Breach of duty owed to fellow jockey.
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383; Kliese v Pelling [1998] QSC 112, discussed.
Civil Liability Act 2002 (Tas), ss11, 12.
Aust Dig Torts [44]

Torts – The law of torts generally – Volenti non fit injuria – Three elements to be proven – Effect of Civil Liability Act 2002 (Tas).
Carey v Lake Macquarie City Council [2007] NSWCA 4; Colin Ball v Transport Commission, B52/1991, discussed.
Civil Liability Act 2002 (Tas), ss15, 16.
Aust Dig Torts [7]

Torts – Statutes, regulations, etc – Applicability and effect in actions for negligence – Generally – Civil Liability Act 2002 (Tas), s19 – “Recreational activity” – Professional jockey injured – Interpretation – Natural meaning.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Falvo v Australian Oztag Sports Association (2006) NSWCA 17; Fallas v Mourlas [2006] NSWCA 32, discussed.
Civil Liability Act 2002 (Tas), ss15, 18, 19, 20.
Acts Interpretation Act 1931 (Tas), ss8A, 8B.
Aust Dig Torts [87]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Method of assessment – Generally – Civil Liability Act 2002 (Tas) – Award of damages for gratuitous services – General damages – Reference to awards in other jurisdictions.
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, applied.
Civil Liability Act 2002 (Tas), ss28, 28B.
Aust Dig Torts [32]

KTR v R [2010] NSWCCA 271 (3 December 2010)

whether the trial judge erred in admitting evidence of the violent behaviour of the offender over a period of time and failed to give the jury adequate instructions regarding this evidence in sexual assault cases
whether there was a miscarriage of justice in relation to the Crown Prosecutor’s address
where violence by offender may explain the acquiescence and failure to complain by victims of sexual assault
application of rule 4

R v WR [2010] ACTSC 89 (31 August 2010)

EVIDENCE – admissibility of expert opinion evidence – expert opinion evidence going to credibility of witness.
EVIDENCE – expert opinion evidence non-compliant with Makita (Australia) Pty Ltd v Sprowles principles – report prepared by psychiatrist failed to identify how expert specialised knowledge justifies statements made in report – expert opinion evidence inadmissible.

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 40T, 51, 58, 59, 79, 108C, divs 4.2B, 4.5
Evidence Act 1995 (Cth), ss 56, 76, 79, 102, 108C

ES v R (No.2) [2010] NSWCCA 198 (6 September 2010)

CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault – Whether evidence of uncharged acts thereby made admissible.

Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192

R v CH and JW [2010] ACTSC 75 (30 July 2010)

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 53(4) Evidence (Miscellaneous Provisions) Act 1991 (ACT) – written reasons not required to be given before trial can proceed.

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 51(1) does not apply to evidence of complainant’s sexual activities with accused.

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – whether alleged sexual activities have substantial relevance to the facts in issue or are a proper matter for cross-examination about credit – evidence of consensual sexual activity between the complainant and another man on the night of the charges not relevant to a fact in issue – evidence of prior consensual sexual intercourse followed by a rape allegation is a proper matter for cross-examination about credit – evidence of prior consensual sexual intercourse followed by a threat to make a rape allegation is a proper matter for cross-examination about credit.

PROCEDURE – interaction of provisions dealing with pre-trial hearings (div 4.2B Evidence (Miscellaneous Provisions) Act 1991 (ACT)) with provisions dealing with admissibility of evidence of complainant’s prior sexual activities (div 4.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT)) and with obligations of counsel during examination of witnesses.

Criminal Code 2002 (ACT), s 712A

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53, 72, 73

Evidence Act 1995 (Cth), ss 55, 102, 103, 106

Evidence Act 1971 (ACT), s 76G(2)

Legal Profession (Barristers) Rules 2008

R v Peter John Parkes [2010] ACTSC 44 (21 May 2010)

CRIMINAL LAW – trial by judge alone – offence of trafficking in a controlled drug other than cannabis, namely heroin – whether accused sold heroin or gave it as a gift – sale not proved beyond reasonable doubt – accused found not guilty.

EVIDENCE – prior inconsistent statements – assessment of explanation for making prior inconsistent statement – consideration of what use can be made of prior inconsistent statement – operation of credibility rule and hearsay rule – prior inconsistent statement admitted to prove the truth of the facts asserted in the statement.

CRIMINAL LAW – circumstantial case – judge asked to draw particular inferences from evidence – whether evidence supports those inferences – requirement that no inference should be drawn from direct evidence unless it is the only rational inference available.

CRIMINAL LAW – prosecution request that if verdict of acquittal to be entered, the Court should instead direct the accused to be indicted on a charge of possession of heroin – operation of s 296 Crimes Act 1900 (ACT) – s 296 not applicable where accused to be acquitted – possession charge no longer indictable.

Evidence Act 1995 (Cth), ss 38, 59, 60, 101A(b), 102, 103, 192

Bellemore v Tasmania [2006] TASSC 111 (21 December 2006)

[2006] TASSC 111

CONSTITUTIONAL LAW — The non-judicial organs of Government — The legislature — Legislation and legislative powers — Legislative powers — Power to act contrary to separation of powers doctrine — Constitution, Ch III — State Act creating crime — Retrospective effect — Whether jurisdiction conferred upon State Supreme Court incompatible with Ch III.
CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Generally — Unreliability — Whether a discretion to reject unreliable evidence.
CRIMINAL LAW — Evidence — Complaints — Admissibility of details and fact of complaint — Sexual offences — Evidence of how complainant came to make complaint many years after — Whether excluded by hearsay rule — Whether fresh in the witness’s memory — Whether inadmissible under credibility rule.
CRIMINAL LAW — Evidence — Evidentiary matters relating to witnesses and accused persons — Character and previous convictions — Evidence of good character — Desirability of direction as to.
CRIMINAL LAW — Evidence — Miscellaneous matters — Other cases — Sexual crimes against children — Evidence by psychiatrist of tendency of victims not to complain — Evidence of tendency of victims to suffer psychological damage — Evidence not specific to the complainant — Whether relevant or admissible.
CRIMINAL LAW — Jurisdiction, practice and procedure — Course of evidence, statements and addresses — Addresses — Contents — Duty of counsel for prosecution — Whether comments excessive or prejudicial — Expression of counsel’s own views of evidence — Comments minimising effect of Longman warning.
EVIDENCE — Facts excluded from proof — On grounds of privilege — Professional confidence — Communication with counsellor — Whether evidence of treatment excluded.

(TAS) Evidence Act 2001 ss 59, 66 and 102

(TAS) Evidence Act 2001 s 79A

(TAS) Evidence Act 2001 s 127B

Abdul-Kader, Mostafa v R [2007] NSWCCA 329 (29 November 2007)

[2007] NSWCCA 329

CRIMINAL LAW – evidence – the ‘credibility rule’ – exception to credibility rule – re-establishing credit – prior consistent statement – question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether trial judge erred in refusing tender of statement

CRIMINAL LAW – sentencing – parity – appellant’s criminality of a lower objective seriousness – co-accused three years younger and of limited intellect – whether trial judge erred in imposing sentence

CRIMINAL LAW – sentencing – date of commencement of sentence – pre-sentence custody – custody not exclusively referable to sentence being passed – appellant serving sentence for other offences – whether trial judge failed to give credit for time in custody

Evidence Act 1995 ss 66, 102, 108(3)(b), 192

R v Maan [2009] ACTSC 160 (7 December 2009)

[This decision seems to have been removed. It can still be located at LexisNexis]

CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered

EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied

EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt

Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165

Golden Oceans (NSW) Pty Ltd v Evewall Pty Ltd [2009] NSWSC 674 (13 July 2009)
CONTRACTS – particular parties – vendor and purchaser – whether period of Notice to Complete extended by agreement – whether further extension of time for completion agreed – whether vendor ready willing and able to complete – whether purchaser ready willing and able to complete – whether contract validly terminated by vendor, held it was – damages, payment of balance of deposit (not a penalty) and holding costs allowed – whether leave to reopen case should be granted, general principles

Jovan Nenadov SAVIC v REGINA [2008] NSWCCA 312 (16 December 2008)

[2008] NSWCCA 312

CRIMINAL APPEAL – CONVICTION – asserted miscarriage of justice – verdict said to be unsafe and unsatisfactory – whether evidence of guilty plea in separate proceedings admissible or unfairly prejudicial – whether failure of counsel to object to evidence said to be inadmissible displayed flagrant incompetence – whether error in trial judge failing to accede to application for view – whether error in disallowing certain cross-examination on prior inconsistent statement and credit
CRIMINAL APPEAL – SENTENCE – application for reduction in sentence – sentence said to be excessive – whether sentence reflected objective seriousness of offence – whether failure to take into account and give credit for co-operative manner in which the trial was conducted by the accused – where wounding with intent to murder and wounding with intent to do grievous bodily harm – Crimes Act 1990 (NSW) ss 27, 33
EVIDENCE – identification evidence – voice identification – visual identification – admissibility – advantage of trial judge – prior inconsistent statement – credit

Australian Automotive Repairers* Association (Political Action Committee) Inc v NRMA Insuranc [2004] FCA 369 (25 March 2004)

[2004] FCA 369

PRACTICE AND PROCEDURE – allegation that persons in courtroom attempted to coach witnesses as to answers to be given in witness box – leave granted to have witnesses recalled for further cross-examination as to whether they perceived any attempt to coach them, and, if so, were influenced in the testimony they gave – after further cross-examination concluded (witnesses stating that they did not observe any attempt to coach them), application for leave to file and read affidavits by persons who say they saw attempts to coach – whether affidavits should be allowed to be filed and read – collateral issue as to credit – cross-examination as to credit.

Evidence Act 1995 (Cth) ss 102, 106