Category Archives: s. 132

In the matter of Petrolink Pty Ltd; Smith v Boné [2014] FCA 1024 (22 September 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/1024.html

PRACTICE AND PROCEDURE – interlocutory process – application for summary dismissal on the basis the interlocutory process is an abuse of process – whether the predominant purpose of the interlocutory process was to obtain a collateral advantage or was otherwise improper

PRACTICE AND PROCEDURE – words and phrases – “abuse of process” – relevant principles – application of ss 11(2), 131(1) and 131(2)(k) of the Evidence Act 1995

Hamilton v Pickering [2014] VSC 399 (26 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/399.html

CRIMINAL LAW — Appeal to County Court against conviction and sentence imposed by Magistrates’ Court — Whether appellant required to attend the hearing of appeal — Whether appearance by counsel sufficient — Personal attendance not required — Criminal Procedure Act 2009 ss 254, 255, 256, 267, 268, 328, 329, 330 and definitions of ‘appear’ and ‘attend’ in s 3 — County Court Criminal Procedure Rules 2009 r 3.02, Form 3A.

ADMINISTRATIVE LAW — Application for judicial review — Order of judge of County Court striking out appeal against conviction and sentence imposed by Magistrates’ Court — Absence of power to make order — No discretionary considerations warrant dismissal of application — Application granted.

MIS Funding No 1 Pty Ltd v Buckley [2013] VSC 607 (15 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/607.html

CORPORATIONS – unregistered managed investment scheme – no prospectus – information memorandum offering investment only to limited classes of investors – representations made by investor – funds loaned to invest in scheme – whether defendant a “professional investor” – meaning of “control” – Corporations Act 2001 (Cth), ss 9, 708(11) (as enacted in the Financial Services Reform Act 2001 (Cth)).

R v P [2001] NSWCA 473 (13 December 2001)

[2001] NSWCA 473

EVIDENCE – Privilege – Legal professional privilege or client legal privilege – Exceptions – Whether displaced in protective proceedings – Opinion evidence – Whether admissible if based on privileged communications – Protected reports

COURTS AND JUDGES – Appeal – Objection to evidence not taken below – Whether can be taken on appeal

MENTAL HEALTH

PROFESSIONS – Lawyers – Duties to client – Privilege – Duty of confidence – Conflict of interests – Lawyer believes client incapable of giving rational instructions – Whether lawyer can take protective proceedings against client – Whether lawyer can use or disclose confidential information in such proceedings. D.

Evidence Act 1995  ss.4, 9, 119-122, 126A, 126B, 132, 134, 135

R v Parkes [2003] NSWCCA 12 (17 February 2003)

[2003] NSWCCA 12

CRIMINAL LAW – evidence – claim of right – whether judge erred in striking out as irrelevant part of Crown witness’ testimony favourable to defendant’s claim – whether judge erred in not allowing defendant to cross-examine on evidence that was struck out – EVIDENCE – hearsay – whether evidence admissible at common law as a prior consistent statement – whether admissible under s 65 or s 66 of the  Evidence Act 1995  – where evidence admissible under s 66 of the Evidence Act – where evidence not significant – whether exclusion gave rise to a miscarriage of justice – EVIDENCE ACT – whether trial judge erred in making appellant aware in the presence of a jury the effects of s 128 of the Act – whether trial judge contravened s 132 of the Act – CRIMINAL TRIAL – forensic tactics – where Crown used s 38 of the Evidence Act as a forensic device – whether unfair or improper advantage – whether abuse of section – whether judge’s failure to refer to s 192 of the Evidence Act an error of law – where Crown case is strong – whether cumulative effect of errors result in a lost chance of defendant being acquitted – Criminal Appeal Act 1912 s 6(1) – appeal dismissed.

Evidence Act 1995 , ss 38, 65, 66, 128, 132, 192(2)

R v Cooper [2007] ACTSC 74 (10 September 2007)

[2007] ACTSC 74

CRIMINAL LAW – assault – circumstantial case
EVIDENCE – when appropriate to allow child to give sworn or affirmed evidence – transcript of child’s emergency 000 call admissible as part of res gestae
EVIDENCE – discretion to allow prosecution to cross-examine unfavourable witness

Evidence Act 1995  (Cth), ss 12, 13, 38, 60, 66, 102, 132, 135, 144