http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/55.html

DAMAGES – claims under the Compensation to Relatives Act 1897 (NSW) – limit on the “claimant’s” income to which a court may have regard when calculating future loss of economic support – whether limit applies to claims under the Compensation to Relatives Act – whether deceased person is a “claimant” – whether appropriate for court to insert words not used by the Parliament – Civil Liability Act 2002 (NSW), s 12

STATUTORY INTERPRETATION – principles – whether words may be read into a provision to qualify the literal meaning – proper scope of a purposive construction

WORDS & PHRASES – “claimant” – “relate to”

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1160.html

CRIMINAL LAW – evidence – whether prior inconsistent statement admissible as exception to credibility rule – evidence admissible under exception in s 106 Evidence Act – CRIMINAL LAW – evidence – whether electronically recorded interview with police should go to the jury room during deliberations – rule in Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208; R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 – not applicable in this case – exhibit to be available to jury with direction against giving disproportionate weight to the evidence

http://www.austlii.edu.au/au/cases/cth/FCA/2011/950.html

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)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/622.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1461.html

DECISION:
Leave refused under s 106(1)(b) of the Evidence Act to the first and second defendants to adduce evidence of previous representation of “contractor” in records produced by National Australia Bank and St George Bank.

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/75.html

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

[2008] FCA 1929

NATIVE TITLE – non-claimant application under Native Title Act 1993 (Cth) seeking determination that no native title exists over land – previous claimant applications for determination that native title exists struck out for not meeting requirements of Act – previous claimant joined as third respondent under s 84(5) of the Act – third respondent opposes non-claimant application – role of Minister in proceedings – Minister has not abandoned right to participate – Minister not required to establish interest to remain a party – burden of proof – evidentiary burden – requirement to prove negative proposition on balance of probabilities – no presumption of native title – third respondent is not required to establish native title but is required to adduce evidence once applicant has adduced sufficient evidence from which the negative proposition may be inferred – third respondent has not adduced sufficient evidence to cast doubt on applicant’s case – no sufficient evidence that asserted rights and interests arise under normative system of traditional laws acknowledged and traditional customs observed – applicant entitled to determination that there is no native title over the land

Evidence Act 1995 (Cth), ss 27, 28, 106

[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

[2006] FCAFC 33

TRADE PRACTICES – exclusive dealing – whether there has been a refusal to supply services

EVIDENCE – exception to credibility rule

NATURAL JUSTICE – procedural fairness – apprehended bias

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

[2005] NSWCA 245

Plaintiff’s car skidded on road – hit embankment and overturned – council road works – whether loose gravel on bitumen surface – varied evidence from plaintiff’s witnesses to support yes – defendant’s witness said no – evidence that had previously said he could not remember – whether admissible as prior inconsistent statement – admissible – evidence of plaintiff’s witnesses not put to defendant’s witness – was put to defendant’s witness that he had no real recollection – whether failure to comply with rule in Browne v Dunn – no failure – whether judge’s finding of loose gravel on road appealably in error – not in error – whether causation of loss of control established – causation established – whether erred in apportionment for contributory negligence – no error. D

[2003] NSWCCA 166

CRIMINAL LAW – appeal against conviction – structuring cash transactions – meaning of “transaction” – whether two or more non-reportable cash transactions – Financial Transaction Reports Act (Cth) s31

CRIMINAL LAW – evidence – whether Crown case split – whether error in allowing cross-examination by Crown on evidence of unexplained wealth – whether error in allowing Crown case in reply

[2005] NSWCCA 277

CRIMINAL LAW – an offence of supplying not less than a large commercial quantity of heroin and an offence of supplying not less than a large commercial quantity of cocaine – CONVICTION APPEAL – whether trial proceedings miscarried through the re-examination of a witness who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant’s family which had resulted in the death by shooting of a person – whether trial proceedings miscarried by reason of outbursts by the family of the appellant and the appellant himself on a number of occasions – whether the trial proceedings miscarried through the remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury – whether the directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate – whether directions given by the trial judge as to the potential unreliability of certain witnesses were adequate – SENTENCE APPEAL – life sentence – whether manifestly excessive

[2004] NSWCCA 321

appeal against conviction

aggravated sexual assault

sexual intercourse without consent

prosecution duty of disclosure

cross-examination of appellant on credit

Evidence Act s104

splitting the prosecution case

case in reply by the Crown where an accused person raises a new factual issue

Evidence Act 1995, s102, s104, s106

[2007] NSWCCA 41

[1952] HCA 18

Criminal Law – Evidence – Procedure – Reopening of Crown case after close of case for defence.

High Court – Criminal appeal – Special leave – Judiciary Act 1903-1950 (No. 6 of 1903 – No. 80 of 1950), s. 35 (1) (b).

[1985] HCA 35

Criminal Law – Procedure – Reopening of Crown case after closing of defence – Rule against splitting of case by prosecution.

Evidence – Cross-examination by prosecution to elicit evidence that could have been tendered in chief – When permissible – Proof of document in cross-examination – Tender of document.

[1968] HCA 67

Criminal Law – Case for accused closed – Evidence in rebuttal by Crown – Discretion of trial judge to allow – Prior inconsistent statement by witness – Proof thereof if not distinctly admitted – Accused a witness – Criminal Code (Tas), s. 371 (i) * – Evidence Act 1910 (Tas.), s. 98*.

[1989] HCA 28

Evidence – Criminal – Expert evidence – Confession – Opinion of psychologist that accused of limited intellectual ability – Admissibility – Listening device – Warrant to use – Regularity – Sufficiency of material before court on application for warrant – Whether relevant to admissibility of evidence – Listening Devices Act 1984 (N.S.W.), ss. 5, 13, 18(2).

Criminal Procedure (N.S.W.) – Jury – Challenge for cause – Jury Act 1977 (N.S.W.), s. 46.

[1999] HCA 32

Criminal law – Evidence – Character evidence – Evidence of accused’s good character adduced – Relevance of character evidence to propensity to commit offence charged – Relevance of character evidence to accused’s credibility – Directions to jury – Whether directions about use of character evidence mandatory.

[1998] HCA 50

Criminal law – Expert evidence – Whether expert evidence admissible which discloses existence of mental disability likely to bear on reliability of complainant’s evidence – Whether possibility of impairment of memory by alcohol and substance abuse within experience of ordinary persons – Whether knowledge of effect of anti-social personality disorder within experience of ordinary persons.

Criminal law – Jury direction on weight to be given to expert evidence about credibility and reliability of complainant witness – Whether misdirection deprived appellant of fairly open chance of acquittal.

Criminal Code Act 1924 (Tas), s 402(2).

[1981] HCA 26

Statutes – Interpretation – Literal meaning unambiguous – Draftsman’s mistake – Parliament’s intention clear from context and legislative history – Income Tax Assessment Act 1936 (Cth), ss. 80B (5), 80C (3).

Income Tax (Cth) – Deductions – Losses of previous years – Company – Holding company and subsidiary – Arrangement by continuing shareholder for purpose of enabling company to take previous year’s losses into account for deduction – Interpretation – Income Tax Assessment Act 1936 (Cth), ss. 80, 80B, 80C (3).

[2003] TASSC 139

Appeal and New Trial – Appeal – General principles – Right of appeal – Nature of right – Appeals in the strict sense and appeals by way of rehearing – Appeals by way of rehearing – When rehearing does not involve hearing de novo – Nature of appeal from Medical Complaints Tribunal – Power to receive additional evidence.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

In re Medical Act 1959 [1973] Tas SR 43; A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152, referred to.

Aust Dig Appeal and New Trial [9]

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – What evidence would ground successful appeal – Appeal from statutory disciplinary tribunal.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435, followed.

Gallagher v R [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, distinguished.

Aust Dig Appeal and New Trial [85]

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Appeal to Supreme Court – Nature of appeal – Further evidence.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

In re Medical Act 1959 [1973] Tas SR 43; A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152, referred to.

Aust Dig Professions and Trades [189]

[2007] TASSC 98

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Miscarriage of justice – Other matters – Accused person with hearing impairment – Allegedly faulty hearing loop.

Criminal Code (Tas), s402(1).
Aust Dig Criminal Law [1002]

[2006] TASSC 80

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Erroneous exclusion of evidence – Substantial miscarriage of justice.

Justices Act 1959 (Tas), s110(2)(ab).

Gregory v R [1983] HCA 24; (1983) 151 CLR 566; Nudd v R [2006] HCA 9, referred to.

Aust Dig Magistrates [272]

[1998] FCA 168  TRADE PRACTICES – Consumer protection – misleading or deceptive conduct – negligence – fraud – sale of fruit business – representations – reliance – damages.

EVIDENCE – Non-calling of a witness by a party – whether an inference can be drawn from a failure to call a witness – prior inconsistent statement – whether necessary to prove a prior inconsistent statement when inconsistency not admitted.

Evidence Act 1995  (Cth) ss 43, 45, 60 and 106

[2003] NSWCA 308

PROCEDURE – Adjournments – Unrepresented litigant involved in other proceedings – Request for adjournment in late communication to other party – No communication to or appearance in court – Adjournment refused.

EVIDENCE – Hearsay – Previous written statement by witness called by party – Leave to cross-examine sought and refused – Whether an error vitiating decision.

LEGISLATION CITED:

Evidence Act 1995  ss.38, 43, 45, 60, 106, 192

[1997] FCA 1060

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Tribunal’s duty to make findings on material questions of fact under s 43(2B) of the Administrative Appeals Tribunal Act 1975 – role of Court on judicial review is not to analyse Tribunal’s decision minutely – Tribunal required in these circumstances to make specific findings on the central question – failure of Tribunal to do so – remitted to Tribunal for further consideration.

Evidence Act 1995  (Cth), ss 103, 106, 178

[2000] NSWSC 670

Admissibility – collateral facts -  Evidence Act 1995  (NSW) s 106(a) and (c) – T8210

[2000] NSWSC 194

Evidence – admissibility -  Evidence Act 1995  (NSW) s106(a) – contemporaneous notes by Mrs Ferry of telephone conversations with Mr Pearce – T4850

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2001/289.html

CRIMINAL LAW – sexual offence – appeal against conviction – whether one verdict of guilty unreasonable in light of five verdicts of not guilty – where evidence corroborative of complainant on count on which convicted but no corroboration on other counts

CRIMINAL LAW – sexual offence – appeal against conviction – directions to jury – whether warning given by trial judge regarding delay in complaint was adequate – whether should have been a warning of the danger of convicting on the evidence of the complainant alone – where jury did not convict in absence of corroboration – whether direction regarding possible unreliability of witnesses adequate – where evidence given of events occurring when witness was a young child – s165  Evidence Act 1995

CRIMINAL LAW – sexual offence – appeal against conviction – fresh evidence – whether new evidence admissible – where new evidence went only to credit of complainant – s106(d)  Evidence Act 1995

CRIMINAL LAW – sexual offence – application for leave to appeal against sentence – whether appropriate to sentence on standards at time of commission of offence or time of conviction – where long delay between the commission of the offence and conviction.

[2008] NSWCA 321

EVIDENCE – credibility – surprise rule – where trial judge refused to allow the appellants to call witnesses impugning credibility of respondents’ witness – whether pleadable accusation of fraud
EVIDENCE – prior inconsistent statement – cross examination of own witness – whether trial judge had regard to matters set out in s 192 of the  Evidence Act 1995

[2004] NSWCCA 227

CRIMINAL LAW – Appeal against conviction – Accessory after the fact to murder – Where defence case was that a known person had, to the exclusion of the accused, committed the offence – Directions to jury regarding the onus of proof – Directions to jury regarding the standard of proof – Directions to jury regarding possible deficiencies in the police investigation – Effect of rule 4 of the Criminal Appeal Rules (NSW) – EVIDENCE – Expert opinion evidence – Expert opinion regarding the effect of drug use generally – Whether expert opinion going to a fact in issue – s 55 of the  Evidence Act 1995  (NSW) – Credibility evidence – ss 102, 103, 104 and 106 of the  Evidence Act 1995  (NSW) – Tendency evidence – s 97 of the  Evidence Act 1995  (NSW) – Refusal to allow cross-examination of witness regarding criminal conviction – Admissibility of digital audio tape recordings – Ad hoc expert – Where some recordings indistinct and unintelligible.

Evidence Act 1995  (NSW), ss 55, 97, 102, 103, 104, 106