Category Archives: s. 053

Denney v Lusted [2015] TASSC 10 (23 March 2015)

Magistrates – Hearing – Conduct of magistrates – Participation – Questioning by magistrate using internet images of scene not in evidence.

R v Esposito (1998) 105 A Crim R 27, referred to.

Aust Dig Magistrates [1119]

Criminal Law – Evidence – Credibility – Failure to put matter to witness – Unfairly drawing adverse inference from failure of the accused to dispute prosecution evidence.

MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, applied.

Aust Dig Criminal Law [2875]

Samsung Electronics Australia Pty Limited v LG Electronics Australia Pty Limited [2015] FCA 227 (16 March 2015)

CONSUMER LAW – television commercials (TVCs) advertising 3D TVs – whether TVCs misleading or deceptive or likely to mislead or deceive – whether false or misleading representations conveyed – where TVCs parody comparative tests in comparing new 3D technology with conventional 3D technology – use of humour and exaggeration – whether scenes depicted in TVCs likely to be taken literally – whether consumers likely to be led into error – whether representations made with respect to any “future matter”

CONSUMER LAW – point of sale advertising representing 3D TV is “Full HD” and “1080P” – meaning of “Full HD” and “1080P” when used in relation to 3D TVs – whether “Full HD” or “1080P” convey representations as to “viewable image” when TV operating in 3D mode and viewed through 3D glasses – whether point of sale material likely to convey representation that viewable image in 3D mode is equivalent to resolution of 1920 x 1080p – significance of absence of recognised standard against which to assess such claims – whether such representations false or misleading in case of respondent’s 3D TVs having a display resolution of 1920 x 1080p

EVIDENCE – admissibility of survey evidence – whether if survey otherwise admissible it should not be given weight – questionnaire design – whether responses elicited from respondents likely to be accurate and reliable – whether coding of responses likely to be accurate and reliable – pilot study – significance of failure to make pilot study available to other party prior to embarking on survey where suitability of questionnaire is disputed – significance of failure to test questionnaire – whether survey methodology and data analysis otherwise appropriate

TORTS – tort of injurious falsehood – elements of tort – whether false representation conveyed – whether applicant established that it suffered actual loss as a result of broadcast of TVC alleged to convey false representation

Ha v The Queen [2014] VSCA 335 (18 December 2014)

CRIMINAL LAW – Conviction – Views and inspections – Judge’s summary– Jury inspected crime scene – Questions asked but not recorded – Judge declined to summarise view – Acquiescence by defence counsel – No miscarriage of justice – Observations about importance of summarising what took place– Evidence Act 2008 , ss 53, 54.

CRIMINAL LAW – Appeal – Conviction – Indecent assault – Whether verdicts unsafe and unsatisfactory – Whether jury entitled to accept complainant’s account – Distress – Prompt complaint – DNA evidence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Indecent assault (eight charges) – Total effective sentence 4 years, non-parole period 2 years – Whether manifestly excessive – Prior offending of similar character – Victim was young employee – Breach of trust – Importance of specific deterrence – Application refused.

CRIMINAL LAW – Appeal – Sentence – Serious sexual offender – Judge did not make required declaration – whether omission able to be corrected on appeal – No power to correct – Sentencing Act 1991, s 6F, s104A, Criminal Procedure Act 2009, ss 312, 325.

Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd [2014] FCA 1366 (18 December 2014)

PATENTS – innovation patents – construction of claims – alleged invalidity – non-compliance with s 18(1A) of Patents Act 1990 (Cth) – lack of novelty – lack of innovative step – whether a manner of manufacture – not useful – non-compliance with s 40(3) – lack of clarity – lack of fair basis

PATENTS – infringement – authorisation – meaning of s 13(1) of the Patents Act 1990 (Cth)

Layton Smith bht Troy Smith v NRMA Insurance Limited [2014] NSWSC 1518 (3 November 2014)

TORTS – negligence – separate determination of liability – in light of joint position of parties no discussion of legal principle required – whether plaintiff can establish on the balance of probabilities that the driver of a vehicle that crossed into oncoming traffic and collided with the plaintiff’s vehicle was conscious and in control of his vehicle at the time of the collision

Dempsey on behalf of the Bularnu, Waluwarra and Wangkayujuru People v State of Queensland (No 2) [2014] FCA 528 (23 May 2014)

NATIVE TITLE – Application for determination – rights to country said to pass by descent – application specifies apical ancestors – claim group comprises three peoples said to form one society – substantial agreement from respondents that determination in form sought is appropriate – one respondent disputes contention that Wangkayujuru people are part of same society as Bularnu and Waluwarra – one respondent contends for inclusion of another apical ancestor on any determination – evidence establishes that Bularnu, Waluwarra and Wangkayujuru form one society – insufficient evidence to find additional apical ancestor should be included – applicant entitled to determination in the form sought

Tongahai v R [2014] NSWCCA 81 (15 May 2014)

APPEAL – criminal – miscarriage of justice – whether accused misled by trial judge – accused represented by counsel – whether consent to view in his absence was a true and informed consent – whether trial miscarried

CRIMINAL LAW – appeal against conviction for murder – application for extension of time – notice of intention to appeal filed within time – numerous extensions of time granted while accused sought legal aid – notice expired – request for extension of time after expiration refused by deputy registrar – whether an extension of time should be granted – Criminal Appeal Act 1912 (NSW), s 10; Criminal Appeal Rules rr 3A, 3B

CRIMINAL LAW – trial procedure – view – attendance of accused – trial judge directed a view in absence of the accused – whether trial judge misled accused – whether accused properly advised by counsel – whether trial miscarried – right to attend

CRIMINAL LAW – appeal – trial – miscarriage of justice – conduct of defence counsel — accused expressed desire to attend view – trial judge used language that might suggest accused had no right to attend – counsel obtained further instructions that view could proceed without the accused – allegation that counsel misled accused in confirming there was no right to attend – no incompetence of counsel alleged – accused bound by the conduct of counsel – whether evidence of communication between counsel and accused admissible

EVIDENCE – criminal – direction for view – jury entitled to draw inferences from view – absence of accused, represented by counsel – Evidence Act 1995 (NSW), ss 53, 54

EVIDENCE – view taken in absence of accused – challenge to consent to be absent from view – whether subject belief of accused relevant – whether advice given by counsel relevant – no challenge to competence of counsel

Edwards and Ors v Endeavour Energy and Others; Precision Helicopters Pty Limited v Endeavour Energy and Ors; Endeavour Energy v Precision Helicopters Pty Limited and Anor (No. 4) [2013] NSWSC 1899 (19 December 2013)

CIVIL LIABILITY – helicopter undertaking aerial power line inspection at St Albans for Endeavour Energy – helicopter owned and operated by Precision Helicopters – wire strike with disused Telstra catenary wire – helicopter lands but rolls over – Endeavour Energy observer suffers head injury and brain damage – observer not wearing helmet – whether observer a “passenger” for purposes of Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – held he was not a “passenger” – liability of Endeavour Energy as employer – whether Telstra and Precision Helicopters liable to injured man – s.151Z Workers Compensation Act 1987 – claim by Precision Helicopters against Endeavour Energy for breach of contract – cross-claim by Endeavour Energy claiming indemnity under contract – s.151Z apportionment of responsibility as between Endeavour Energy (90%) and Precision Helicopters (10%) – Precision Helicopters successful in contract claim – claim in contract by Endeavour Energy rejected

Simon v R [2013] NSWCCA 328 (20 December 2013)

CRIMINAL LAW – conviction appeal – sexual assault and other offences – applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours – applicant claimed intercourse was consensual – Notice of Intention to Appeal and Notice of Appeal filed long out of time – s 10(1)(a) Criminal Appeal Act 1912, r 3A Criminal Appeal Rules – whether sufficient prospects of success to warrant an extension of time – extension refused

CRIMINAL LAW – sentence appeal – sexual assault and other offences – applicant followed complainant from Darlinghurst to Hurlstone Park, broke into her home unit and sexually assaulted her over a number of hours – sentencing judge determined that offences fell “well above the mid-range and up towards the high range of objective seriousness” – applicant sentenced to total term of imprisonment of 22 years with 17 years 6 months aggregate non-parole period – whether sentencing judge erred in determination of objective seriousness – whether sentencing judge erred in assessing totality and in accumulating sentences by failing to find sexual assaults formed one episode of criminality – whether sentencing judge should have found special circumstances by reason of the effect of accumulation of sentences – whether sentence manifestly excessive – aggregate non-parole period reduced by 12 months – sentence otherwise confirmed

Hume v Patterson [2013] NSWSC 1203 (30 August 2013)

TORTS – negligence – plaintiff suffered catastrophic injury while participating in sport of wakeskating – determination of liability as separate question- whether defendant tow boat driver was in breach of his duty to exercise reasonable care for the safety of the plaintiff in the conduct of the activity – whether wakeskating dangerous recreational activity

R v Jacobs (No 4) [2013] NSWSC 945 (17 June 2013)

CRIMINAL LAW – procedure – application for view – not insubstantial cost – trial relocated in the interests of accused – relocation ought not prejudice Crown – accused entitled to be present at view – whether defence could be afforded opportunity to inspect proposed view location – whether danger of jury misusing view – application granted

Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] FCA 665 (8 July 2013)

CONSUMER LAW – Allegations that respondents engaged in misleading or deceptive conduct, made false representations and engaged in conduct liable to mislead the public in connection with the use of the phrase “free to roam” and variants of it on packaging, in advertising and in publications – consideration of procedural matters – consideration of applicable legal principles – whether generally and in the context of packaging, print advertising and website publication the phrase “free to roam” was apt to mislead or deceive or was false – whether use of the phrase “free to roam” was liable to mislead public as to nature and characteristics of product – whether fourth respondent able to rely on “media safe harbour defence”

Hermez v Karahan [2012] VSC 443 (1 November 2012)

RESTRICTIVE COVENANTS – Application to remove single dwelling covenant under s 84 Property Law Act 1958 (Vic) – whether single dwelling restriction obsolete – whether removal or modification would “substantially injure” those entitled to the benefit of the restriction

23 Further, viewing the neighbourhood by referring to Google maps[7] during the course of the hearing and in the course of preparation of these reasons, confirmed my opinion that development of the neighbourhood, with the exception of usual community facilities such as a school, a childcare centre, and a shopping centre, is characterised by large, detached dwellings on blocks of equivalent or larger size to the land. The further subdivisions referred to above have not substantially altered the character of the neighbourhood such as to render the single dwelling restriction in the covenant obsolete.
[FN] [7] See T2, 15-16 and T11, 28. Sections 53 and 54 of the Evidence Act 2008 (Vic) allows the Court to draw any reasonable inference from an inspection. There seems to be no good reason why an “inspection” cannot be conducted using an electronic device.

MyEnvironment Inc v VicForests [2012] VSC 91 (14 March 2012)

ENVIRONMENTAL LAW – Proposed logging at three coupes near Toolangi – Application for permanent injunction restraining logging – Whether proposed coupes contain Leadbeater’s Possum zone 1A habitat – Flora and Fauna Guarantee Act Action Statement – Central Highlands Forest Management Plan – Construction of relevant management prescription – Hollow-bearing tree means mature or senescing tree containing hollows – No evidence that proposed coupes contain sufficient density of hollow-bearing trees to constitute zone 1A – Obligation to comply with precautionary principle – No threat of serious or irreversible damage – Proposed adaptive management measures not proportionate to threat – Application dismissed – Sections 3, 4, and 22 Forests Act 1958; ss 4, 5, 6, 7, 10, and 31 Conservation Forests and Lands Act 1987; ss 1, 4, 5, 6, 13, 14, 15, 16, 17, 18, 19, 37, 38, 39, 40, 43, 44, and 45 Sustainable Forests (Timber) 2004; ss 1, 3, 4, 7, 8, 11, 17, 19, and 20 Flora and Fauna Guarantee Act 1988 – Environment East Gippsland Inc v VicForests [2010] VSC 335 – Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256.

Hughes v Janrule Pty Ltd [2011] ACTCA 15 (9 August 2011)

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

NM Rural Enterprises Pty Ltd v Rimanui Farms Limited [2011] NSWSC 106 (3 March 2011)

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

DPP v Farquharson (No 2) (Ruling No 4) [2010] VSC 210 (21 May 2010)

CRIMINAL LAW – Re-trial – Accused charged with three counts of murder – Further submissions on matters dealt with by Court of Appeal – New evidence – Opinion Evidence – Specialised knowledge – Experiments – Degree of similarity with circumstances at the time – Matters of weight – Potential for jury to be misled – Limiting the use of evidence – Evidence Act (2008) ss. 53, 76, 79, 135, 136 & 137.

Environment East Gippsland Inc v VicForests [2010] VSC 335 (11 August 2010)

ENVIRONMENTAL LAW – Brown Mountain East Gippsland – Proposed logging – Standing of conservation group to sue – Code of Practice for Timber Production – Timber allocation order – Timber Release Plan – Forest Management Plan – Flora and Fauna Guarantee Act Action Statements – Management Procedures – Obligation to comply with requirements of Action Statements and standards in Forest Management Plan in event of detection of specific fauna species during operations – Obligation to comply with precautionary principle – Presence of endangered fauna species – Long-footed Potoroo – Orbost Spiny Crayfish – New taxon of crayfish – Giant Burrowing Frog – Large Brown Tree Frog – Powerful Owl – Sooty Owl – Spot-tailed Quoll – Greater Glider – Yellow-bellied Glider – Square-tailed Kite – Hollow bearing trees – Provision of retained habitat for Long-footed Potoroo – Provision of Special Protection Zone for exceptionally high densities of Greater Gliders and Yellow-bellied Gliders – Compliance with precautionary principle by way of further surveys for Giant Burrowing Frog, Large Brown Tree Frog, and Spot-tailed Quoll – Review of Powerful Owl Management Area scheme and Sooty Owl Management Area scheme – Review of reserves for Spot-tailed Quoll – Conditional injunctions granted

Birks v The State of Western Australia [2007] WASCA 29 (7 February 2007)

[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

Hughes v Janrule Pty Ltd t/as Gregory’s Ford [2010] ACTSC 5 (5 February 2010)

[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

Chotiputhsilpa v Waterhouse & Ors [2005] NSWCA 295 (2 September 2005)

[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

REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37 (6 May 2004)

[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

Kozul v R [1981] HCA 19; (1981) 147 CLR 221 (5 May 1981)

[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.

Evans v The Queen [2007] HCA 59 (13 December 2007)

[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.