http://www.austlii.edu.au/au/cases/act/ACTCA/2011/15.html

APPEAL – Court of Appeal has all procedural powers necessary to manage appeals within its jurisdiction – power to order security for costs of an appeal may be exercised by single Judge of the Court of Appeal.

SECURITY FOR COSTS – no requirement to demonstrate special circumstances before security for costs of appeal is ordered – in personal injury cases, the “common situation” of an impecunious plaintiff, a difficult case on the facts and potentially high costs is not of itself a ground for ordering security for costs – lawyers acting for appellant on no-win no-fee basis are not “people standing behind the proceeding” merely because they are acting on that basis – lawyers acting for an impecunious individual are not in the normal course of events a possible source of financial support for their client – that situation contrasted with the position of shareholders or secured creditors of an impecunious corporation – representation of impecunious appellant on no-win no-fee basis is not of itself a ground for ordering security for costs – that situation contrasted with case in which no-win no-fee representation means that only the lawyer will benefit from a successful appeal – application refused.

Evidence Act 1995 (Cth), s 53

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/106.html

EVIDENCE – application for inspection of rural properties at Moree – s 53 Evidence Act 1995 – whether in court’s opinion inspection would assist in resolving issues of fact or understanding the evidence – whether inspection might cause or result in undue waste of time – cost of inspection relevant – application refused

[2007] WASCA 29

Criminal law – Appeal against arson and murder convictions – Evidence – Admissibility of experiments and tests – Admissibility of video showing “demonstration burn” – Whether miscarriage of justice occurred – Disputed admissions on video records of interview – Whether trial Judge failed properly to direct the jury or give a “McKinney” direction – Whether trial Judge erred in failing to direct the jury as to the availability of s 24 Criminal Code (WA) defence – New evidence – Whether, having regard to the new evidence, a miscarriage of justice occurred – Where new evidence was inconsistent with the appellant’s case at trial

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/5.html

[2010] ACTSC 5 (5 February 2010)

NEGLIGENCE – personal injury – claim against employer – safety of place and system of work – plaintiff losing footing and falling on metal staircase – whether surface of step slippery – whether maintenance adequate – whether breach of duty of care

DAMAGES – personal injury – fall on metal staircase – injury to back – psychological sequelae – impairment of earning capacity – no issue of principle

PRACTICE and PROCEDURE – application by plaintiff to reopen case and call further evidence after judgment reserved – evidence as to what took place on view attended by judge during course of hearing – such evidence should not be permitted to be called – would not affect outcome in any event – application refused

Evidence Act 1995 ss 53, 54

[2009] ACTSC 1

CRIMINAL LAW – trial by judge alone – evidence – identification evidence – photo-board – matters to be considered taken into account in assessing reliability.

Evidence Act 1995 (Cth), s 53, s 116, s 165

[2005] NSWCA 295

TORTS – negligence – driver of motor vehicle struck pedestrian crossing traffic on Anzac Bridge – whether driver breached duty of care

TORTS – negligence – Roads and Traffic Authority responsible for design and construction of Anzac Bridge – adequacy of signage providing information about presence of pedestrian footpath underneath Bridge – whether duty of care owed to pedestrians – whether RTA breached its duty of care – appellant’s presence on Bridge unexpected – contributory negligence

EVIDENCE – application that court view the accident site – fresh evidence – whether site has materially altered since date of accident – Evidence Act 1995 (NSW) ss. 53(3)(e) and 54

REASONS – adequacy of

BIAS – whether trial judge’s comments gave rise to reasonable apprehension of bias

[2004] NSWCCA 37

Criminal law – sexual offences – identification issues – Evidence Act, s116 – rule 4 – directions as to meaning of “beyond reasonable doubt” – impact of media publicity upon fair trial – directions about suspect’s refusal to answer questions in ERISP – directions about lies – consciousness of guilt directions – complainant’s evidence as to belief of accused’s guilt in matter involving inference – juror misconduct – unauthorised view and experiment – admissibility of evidence of same – appropriate directions to juries prohibiting independent enquiries (D)

Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116

[2000] NSWCCA 330

CRIMINAL LAW- appeals – appeal against conviction – appeal against sentence – robbery – directions to jury – identification evidence – sufficiency of directions concerning photographic evidence – Jones and Dunkel direction – aggravating circumstances in sentencing.

[2006] NSWCCA 31

[1981] HCA 19

Criminal Law – Evidence – Exhibits – Whether jury entitled to experiment with exhibit – Firearm offence – Main issue whether discharge intentional or caused by blow to hand – Expert evidence that firearm would not discharge when holder hit on hand – Jury encouraged by judge to experiment with trigger pressures etc. – Whether misdirection.

[2007] HCA 59

Criminal law – Evidence – Admissibility of in court demonstrations – An armed man wearing overalls, balaclava and sunglasses committed a robbery – During the trial the appellant was required to wear overalls and a balaclava found at his residence and sunglasses not in evidence as well as walk before the jury and say words attributed to the robber (“the in court demonstration”) – Whether the in court demonstration was relevant – Whether the in court demonstration was unfairly prejudicial – Relevance of distinction between demonstrations, experiments, inspections, reconstructions and views – Whether s 53 of the  Evidence Act 1995   (NSW) (“the Act”) applied to in court demonstrations – Whether requiring the appellant to perform the in court demonstration was permitted either by s 53 of the Act or at common law.

Criminal law – Evidence – Admissibility – Whether showing witnesses the overalls and balaclava found at the appellant’s residence was relevant – Whether showing witnesses the overalls and balaclava was unfairly prejudicial.

Criminal law – Appeals – Application of the proviso- Whether the trial judge’s error in not admitting alibi evidence which the appellant proposed to call denied the application of the proviso – Whether the failure of the trial judge to give adequate reasons for rulings made during trial was a miscarriage of justice – Whether the judicial warnings to the jury were adequate – Whether the in court demonstration was so prejudicial as to deny the application of the proviso – Whether the trial so departed from the fundamental assumptions underpinning a fair trial that the proviso could not or should not be engaged.

Words and phrases – “demonstration”, “experiment”, “inspection”, “unfairly prejudicial”, “reconstruction”, “relevance”, “view”.

Evidence Act 1995  (NSW), ss 53, 55, 137.