Category Archives: s. 044

R v GJ (No 2) [2014] ACTSC 113 (31 March 2014)

EVIDENCE – Admissibility and Relevancy – father on trial for acts of indecency against daughters – proposal to cross-examine witness on specific contents of family report prepared in Family Court proceedings – no proposal to call author of report – mother’s evidence is that report is inaccurate not unfavourable – mother giving evidence through interpreter – no proposal to tender whole report – whether proposed cross-examination about impact of selected parts of report would cause unfairness – whether contents of report admissible as relevant to mother’s credibility – whether mother’s credibility would be affected by her opinion of impact of family report – probative and prejudicial value of parts of family report selected to be subject of cross-examination because they are said to be unfavourable to mother – directions to limit use of evidence not adequate to address prejudice – cross-examination not permitted about specific contents of family report.

Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350 (31 March 2014)

DEFAMATION – statements said to have published by the Maritime Union of Australia (MUA) – Bureau of Meteorology forecasts – severe weather conditions – ship master’s discretion -“Cyclone Response Plan” -existence of “contingency plan” – “Job Hazard Analysis” (JHA) – impact of “storm surge” – expert report on behaviour of tropical cyclones – no expert evidence to support questions regarding Cyclone Response Plan.

DEFAMATION – publication – MUA and Cootamundara Herald online articles – “bilateral” nature of publications – utterance comprehended by reader, listener or observer – publication of someone else’s defamatory statement by use of a hyperlink – responsibility of person approving, adopting or promoting the defamatory statement of another – “shallow” or “deep” hyperlinks – Crookes v Newton [2011] 3 SCR 269 – MUA responsible for publication of Cootamundara Herald article.

DEFAMATION – justification – truth – whether imputations carried by online articles were “substantially true” – particulars of truth – imputations not justified – substantial truth defence fails – absence of expert or similar evidence concerning ship master’s conduct.

DEFAMATION – Hore-Lacy defence -“common string” not established – defence fails.

DEFAMATION – privilege – qualified privilege at common law – reciprocal duty or interest – whether reciprocity of duty and interest between publisher and viewer – unrestricted nature of the publication – qualified privilege defence fails.

DEFAMATION – privilege – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – whether the conduct of the defendant in publishing defamatory matter was reasonable in the circumstances – threat posed by cyclone significantly overstated – defence of qualified privilege pursuant to statute fails.

DEFAMATION – defence -expression of opinion – Defamation Act 2005 (NSW) s 31 – truth of material not established – opinions not based on proper material – defence under s 31 fails.

DEFAMATION – damages – compensatory damages – damages to bear rational relationship to harm – damages for non-economic loss limited – Defamation Act 2005 (NSW) s 34 and s 35 – imputations conveyed by articles serious – publication of articles damaged reputation – damages for multiple causes of action may be assessed as single sum – separate publications warrants amount of damages to be individually specified.

DEFAMATION – damages – aggravated damages – conduct must be lacking in bona fides, improper or unjustifiable – failure to apologise or remove article from website – conduct of cross examination – unjustifiable conduct established – aggravated damages awarded.

DEFAMATION – damages – mitigation of damages – Defamation Act 2005 (NSW) s 38 – no evidence regarding “Fairfax settlement” and whether it released MUA from liability – basis for reducing damages awarded fails.

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.

DUFFY, Michael John v R; MANGAN, Shane Kenneth v R [2009] NSWCCA 304 (18 December 2009)
appeal against sentence
maliciously inflicting grievous bodily harm in company
whether error in factual findings by sentencing judge
whether error in failure to apply 25 per cent discount for guilty plea
whether error in appointment of applicant’s role in commission of offence
whether failure to give sufficient weight to subjective circumstances

Blomfield v Nationwide News Pty Ltd (No 2) [2009] NSWSC 978 (15 September 2009)
EVIDENCE – defamation – admissibility and relevance – facts relevant to facts in issue – facts showing state of mind – credit and credibility – objection to the tender of evidence on the contention that it is irrelevant, unfairly prejudicial, previous representation and does not qualify as business record – Evidence Act 1995 ss 44, 69 and 135

REGINA v CHAMI, M SKAF, GHANEM, B SKAF [2004] NSWCCA 36 (7 April 2004)

[2004] NSWCCA 36

Criminal law – sexual offences – refusal to order separate trial – late disclosure of witness statement of co-offender – identification issues – directions as to consciousness of guilt – prosecutor’s comment on accused’s failure to give evidence – directions on standard of proof – “beyond reasonable doubt” should not be enlarged upon – complainant’s reliability – directions about lies – whether verdicts unreasonable.

Evidence Act, ss 20(2), 44, 135, 137

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)

Australian Securities & Investments Commission v Macdonald (No 7) [2008] NSWSC 1367 (16 December 2008)

[2008] NSWSC 1367

EVIDENCE – Admissibility and Relevancy – Transcript of evidence volunteered by 5th defendant to plaintiff under a protocol containing a provision that it would not be tendered in evidence against the 5th defendant in a proceeding for the imposition of a penalty against him – Civil penalty proceedings – Plaintiff ordered to provide transcript to other parties in the proceedings – 1st defendant sought to cross-examine on the transcript – 1st defendant not bound by the protocol or s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) – Whether 1st defendant bound by confidentiality – Whether equity would grant an injunction – Whether prevented from cross-examining by s 127(1)(a) of Australian Securities and Investments Commission Act or by the Evidence Act 1995, s 26, s 29, s 42, or s 44 – Voir dire held under s 189 to determine whether, in terms of s 135, the 5th defendant would be unfairly prejudiced by the admission of the cross-examination

Conway v The Queen [2000] FCA 461 (11 April 2000)

[2000] FCA 461

Criminal Law – murder – appeal against conviction – admissibility of evidence – evidence of relationship – whether evidence constituted propensity evidence that should have been excluded – meaning and scope of “propensity evidence” – whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule – whether deceased’s oral statements made shortly after the asserted fact – whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication – whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable – whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule – whether directions to the jury on the use of relationship evidence adequate.

Criminal Law – murder – appeal against conviction – accomplices – warning – need for under ss 164 and 165 of the  Evidence Act 1995  (Cth) – whether adequate warning given in the circumstances of the case – whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices – whether incorrect identification led to miscarriage of justice.

Criminal Law – murder – appeal against conviction – whether sufficient direction on

co-conspirator rule – whether trial judge’s intervention during cross-examination of

co-accused caused trial to miscarry – whether evidence of an out of court statement by a

co-accused wrongly rejected – whether proper directions given on evidence of good character – whether question arose as to an accused’s fitness to stand trial – whether trial judge failed to properly direct on accused’s failure to recall certain events – whether trial judge failed to adequately put the defence case of one accused to the jury.

Evidence Act 1995  (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165

Australian Securities & Investments Commission v Rich [2006] NSWSC 643 (27 June 2006)

[2006] NSWSC 643

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