Category Archives: s. 192A

GIALLOMBARDO Peter v R [2014] NSWCCA 25 (12 March 2014)

CRIMINAL LAW – appeal against conviction – three counts of aggravated indecent assault pursuant to s 61M(1) of the Crimes Act 1900 – one count of aggravated sexual assault pursuant to s 61J(1) of the Crimes Act 1900 – convicted of four counts of aggravated indecent assault – alleged that the jury verdicts are unreasonable and could not be supported by the evidence – all relevant matters were left open to the jury – upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offences charged – alleged failure by the trial judge to adequately warn the jury that the prosecution case relied wholly on the evidence of the complainant – failure by trial counsel to seek directions – application of Rule 4 of the Criminal Appeal Rules – trial judge gave strong and clear directions as to the importance of not returning a guilty verdict unless the jury was satisfied beyond reasonable doubt of the evidence given by the complainant – jury accepted the complainant as a truthful and reliable witness – benefit of the jury seeing the complainant give evidence – no miscarriage of justice arising from the absence of good character evidence and directions on good character – failure by trial counsel to seek directions on good character – application of Rule 4 of the Criminal Appeal Rules – proper consideration was given by trial counsel to the question of calling good character evidence and a tactical decision was made – appeal dismissed

O’Reilly v Western Sussex NHS Trust (No.2) [2013] NSWSC 1659 (8 November 2013)

EVIDENCE – expert evidence – admissibility of evidence – compliance with r 31.23 of Uniform Civil Procedure Rules 2005 – whether discretion should be exercised under r 31.23(3) of UCPR – interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial – overriding duty of trial judge to ensure a fair trial – overriding purpose of UCPR

R v Schofield [2013] ACTSC 247 (21 November 2013)

EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101

Huges (a Pseudonym) v The Queen [2013] VSCA 338 (28 November 2013)

CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.

Samsung Electronics Co. Limited v Apple Inc. [2013] FCA 1142 (4 November 2013)

PRACTICE AND PROCEDURE – application to rely on evidence filed out of time – nature and complexity of evidence – expansion of case – amendment of pleadings – imminent commencement of hearing – case management principles

EVIDENCE – application to rely on evidence of negotiations – whether evidence is excluded under s 131(1) – whether evidence is admissible under s 131(2) exceptions

EVIDENCE – exclusion of evidence under s 135 – probative value of evidence outweighed by s 135 factors

Chaina v Presbyterian Church (NSW) Property Trust (No. 16) [2013] NSWSC 1494 (25 October 2013)

EVIDENCE – expert evidence – early determination – application to reinstate rejected evidence – need to reconsider earlier judgment – power to re-open and re-hear – whether misapprehension of fact or law
PROCEDURE – application to serve further expert reports after trial well advanced – whether a re-casting of the case – case management principles – no explanation for delay in serving reports
DAMAGES – loss of chance – absence of evidence of value of chance – whether court must do its best to assess damages

Hornsby Shire Council v The Valuer General of New South Wales [2013] NSWSC 1026 (12 July 2013)

EVIDENCE – application for advanced ruling pursuant to s 192A of Evidence Act – further expert evidence sought to be relied upon – whether applicant can show real or substantial prejudice – interests of justice require all issues to be determined at trial – no prejudice in reliance on additional expert evidence – no general point of principle

R v Jacobs (No 5) [2013] NSWSC 946 (26 June 2013)

EVIDENCE LAW – application for advanced ruling pursuant to s 192A of Evidence Act – proposed cross-examination of Crown witness with regard to past offences – Crown witness convicted of manslaughter – tendency adduced by accused of Crown witness to act violently – whether evidence has significant probative value – whether facts in remarks on sentence admissible pursuant to s 91 of Evidence Act – evidence of manslaughter admissible as tendency evidence – undisputed facts found in remarks on sentence admissible – no adverse credibility consequences

Bailey v Director-General Department of Natural Resources [2013] NSWSC 515 (17 May 2013)

PROCEDURE – notice of motion – application to reject evidence sworn in an affidavit under ss 61(2)(a) and 61(3)(e) of Civil Procedure Act 2005 and s 192A(a) of Evidence Act 1995- no benefit of advance ruling- not in the interests of justice to compel an admission – no general point of principle

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

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.

Kirby v Centro Properties Limited (No 3) [2012] FCA 221 (13 March 2012)

EVIDENCE – Evidence Act 1995 (Cth) ss 135, 136 167(a), 169 and 192A – reasonable request – for the purpose of determining a question that relates to a previous representation – implied representation which might be relevant for the purposes of the proceedings – representation might be relied on for hearsay purpose – failure or refusal to comply with request – without reasonable cause – general discretion to exclude or limit use of evidence – unfair prejudice – framing of limitation order

Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 (6 March 2012)

PRACTICE AND PROCEDURE – challenge to relevance of applicant’s affidavit – whether advance ruling on admissibility of the applicant’s affidavit should be made before trial – s 192A of the Evidence Act 1995 (Cth) – difficult to determine relevance of affidavit prior to trial – interests of efficiency do not favour advance ruling – advance ruling on affidavit refused

R v Agius; R v Abibadra; R v Jandagi; R v Zerafa [2011] NSWSC 1388 (21 November 2011)

CRIMINAL LAW – interlocutory proceedings – s 192A Evidence Act 1995 – advanced rulings and findings – admissibility and use of evidence
CRIMINAL LAW – particular offences – offences against the government – conspiracy to defraud the Commonwealth – s 29D and s 86(1) Crimes Act 1914 – s 135.4(5) Criminal Code Act 1995

R v SH, MV and KC [2011] ACTSC 198 (17 November 2011)

EVIDENCE – witnesses – unfavourable witnesses – advanced rulings on whether leave should be given to cross-examine witnesses.

EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses.

Evidence Act 1995 (Cth), ss 11, 38, 41, 55, 135, 137, 192, 192A

Regina v OM [2011] NSWCCA 109 (17 May 2011)

CRIMINAL LAW – Appeal seeking to set aside interlocutory order – no order made – no jurisdiction to set aside preliminary ruling – providing false information to police – whether capable of constituting offence of acting with intent to pervert the course of justice – scope of offence – whether common law concept narrowed by Einfeld’s case – whether error by primary judge could be corrected.

Aon Risk Services Australia Limited v Australian National University [2010] ACTCA 28 (29 November 2010)

PRACTICE AND PROCEDURE – whether a decision by a single judge of the Court not to rule certain evidence inadmissible one year before the trial is an “interlocutory order” within s 37E(4) of the Supreme Court Act 1933 (ACT) and thus susceptible to an application for leave to appeal from that decision before final judgment is delivered – in the circumstances of the present case, the decision of the primary judge not to exclude evidence in advance of the trial held not to be “an interlocutory order” within s 37E(4) – application for leave to appeal incompetent – even if, contrary to the Court’s conclusion, the application for leave to appeal in the present case was competent, leave to appeal should be refused – application dismissed with costs

Evidence Act 1995 (Cth), s 4, s 192A

Director of Public Prosecutions (NSW) v J G [2010] NSWCCA 222 (30 September 2010)

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

Astram Financial Services Pty Ltd v Bank of Queensland Ltd [2010] FCA 1010 (15 September 2010)

TRADE PRACTICES – s 52 of Trade Practices Act 1974 (Cth) – misleading and deceptive conduct – alleged misrepresentations made in oral discussions – representations contrary to statements made in formal written documents – necessity to look at whole course of conduct – representations either not made or not misleading or deceptive having regard to whole course of conduct – no reliance on representations – no loss or damage caused to applicants

TRADE PRACTICES – s 51AC of Trade Practices Act 1974 (Cth) – respondent alleged to have engaged in unconscionable conduct – unconscionable conduct involves a high level of moral obloquy or is highly unethical – no unconscionable conduct established on facts

TRADE PRACTICES – s 51AD of Trade Practices Act 1974 (Cth) – breach of industry code – franchising code of conduct – no failure to comply with franchising code of conduct – no breach of legislation

CONTRACTS – breach of contract – representations alleged to be warranties of a contract collateral to formal written contract – such representations not made or not breached – no repudiation by respondent of formal written contract

EVIDENCE – tendency evidence – amendments to Evidence Act 1995 (Cth) – evidence only admissible if it will have significant probative value – evidence sought to be adduced was not admissible under tendency rule

TRUSTS – trustee remains personally liable even if documents were signed as trustee

Evidence Act 1995 (Cth) ss 57, 95, 97, 192A

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (13 November 2009)

[2009] FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.

PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.

PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.

Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A

Adam v R [2001] HCA 57; 207 CLR 96; 183 ALR 625; 75 ALJR 1537 (11 October 2001)

[2001] HCA 57

    A Note to Section 101A states “Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.”

Criminal law – Evidence – Whether trial judge erred in admitting prior inconsistent statements of prosecution witness – Relevance of prior inconsistent statements – Application of credibility rule – Exceptions to hearsay rule – Prior inconsistent statements as evidence of the truth of the representations.

Criminal law – Evidence – Unfavourable witnesses – Whether trial judge erred in granting prosecution leave to cross-examine its own witness – Unreliable evidence.

Evidence – Prior inconsistent statements – Relevance of such statements – Whether evidence of the truth of representations – Whether judge erred in granting leave to prosecutor to cross-examine its own witness.

Evidence Act 1995  (NSW), ss 38(1), 38(3), 38(6), 55(1), 59(1), 60, 102, 103, 192(2).

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 3) [2009] FCA 1075 (23 September 2009)

[2009] FCA 1075

EVIDENCE – whether the Court should exercise its discretion pursuant to s 192A of the  Evidence Act 1995  (Cth) to rule on the admissibility of evidence in advance of that evidence being adduced – ruling made

PRACTICE AND PROCEDURE – whether the Australian Competition and Consumer Commission should be released from the implied undertaking attributed to it in respect of documents produced using the compulsory processes of the Court – three sets of proceedings to be heard together – leave granted to use documents in all three actions

PRIVILEGE – whether investigative accountant’s reports and associated calculations prepared for settlement negotiations and a mediation are protected from being adduced in evidence by s 131(1) of the Evidence Act 1995 (Cth) – meaning of expression “in connection with” in s 131(1) – documents prepared for the purposes of settlement are protected – documents ruled inadmissible

Evidence Act 1995  (Cth), ss 69, 76, 79, 131, 192A

TKWJ v R [2002] HCA 46; 212 CLR 124; 193 ALR 7; 76 ALJR 1579 (10 October 2002)

[2002] HCA 46

Criminal law – Conviction – Aggravated indecent assault – Aggravated indecency – Matters connected with conduct of defence – Failure of defence counsel to call character evidence – No application for voir dire – Whether tactical decision of defence counsel not to call character evidence constituted a miscarriage of justice where that evidence may have been excluded – Chance of acquittal “fairly open” not lost.

Criminal law – Appeal – Practice and procedure – “On any other ground whatsoever” – Allegation defendant not competently or adequately represented – Tactical decision at trial – Whether forensic advantage – Informed and deliberate decision – No miscarriage of justice.

Criminal law – Appeal – Circumstances in which conduct of legal practitioners can provide grounds for appeal – Relevant principles.

Criminal law – Jurisdiction – Trial judge – “Advance ruling” – Whether required by  Evidence Act 1995  (NSW) – Whether within implied powers of District Court – Power to conduct voir dire to make “advance ruling”.

Words and Phrases – “fairly open”, “on any other ground whatsoever”, “advance ruling”.

Evidence Act 1995  (NSW), ss 55, 110, 135, 136, 137, 189, 192.