Category Archives: s. 032

Roth (a Pseudonym) v The Queen [2014] VSCA 242 (30 September 2014)

CRIMINAL LAW – Application for extension of time to appeal conviction – R v Darby applied – Whether the merits of the appeal justify a delay of 26 months.

EVIDENCE – Whether substantial miscarriage of justice occurred by reason of the admission of the evidence of the applicant’s flight – Whether judge erred in application of s 32 of Evidence Act 2008 in failing to consider whether the statement relied upon to refresh memory of witness was fresh in the mind of the witness at the time of making the statement.

PROCEDURE – Whether judge erred in failing to direct the jury on the use of the evidence of the applicant’s flight – consciousness of guilt – application refused.

Green v ESTA [2014] VSCA 207 (10 September 2014)

ACCIDENT COMPENSATION – Workplace injury – Negligence and breach of statutory duty – Jury trial – Verdict for defendant – Recent invention – Legal practitioners – Counsel’s duties – Attack on plaintiff – Unjustified allegation of concoction and collusion between plaintiff and solicitor – Duty of counsel to ensure that evidence exists justifying allegation – Appeal allowed – New trial ordered.

SALMON v R [2012] NSWCCA 119 (4 June 2012)

CRIMINAL LAW – CONVICTION APPEAL – theft assault and robbery convictions – appellant self-represented – whether hearsay evidence wrongfully admitted – whether Crown address caused miscarriage of justice – whether miscarriage of justice as a result of directions by trial judge – whether fresh evidence should be admitted on appeal – whether miscarriage of justice occurred as the result of conduct by appellant’s counsel – whether revocation of bail during trial caused miscarriage of justice – whether jury verdict unreasonable – SENTENCE APPEAL – whether sentencing judge erred in assessment of objective seriousness – whether principle of totality applied – whether sentence manifestly excessive.

DPP (Cth) v Carey [2012] VSCA 15 (16 February 2012)

CRIMINAL − Appeal by Director of Public Prosecutions − Criminal Procedure Act 2009 s 291 − Respondent pleaded guilty to attempting to possess precursor chemical − 15 months’ imprisonment wholly suspended and fine of $17,000 − Breach of undertaking to give evidence against co-offenders − Parity − Co-offender sentenced to 15 months’ imprisonment (12 months suspended) − Sentence based on erroneous factual basis − Appeal allowed − Respondent re-sentenced.

Whittaker v Child Support Registrar [2010] FCAFC 112 (7 September 2010)

1 The decision which the appellants seek to challenge was a judgment by an experienced judge delivered after a trial of the action over seven days. His Honour canvassed the evidence called by the parties in detail and at length. His Honour addressed each of the contentions advanced on the appellants’ behalf and rendered a clear and comprehensive judgment against the appellants on each issue raised for his determination.

Isherwood v Tasmania [2010] TASCCA 11 (2 September 2010)

Criminal Law – Procedure – Witnesses – Powers of judge – Presence of witnesses in court before giving evidence – Discretion – Unrepresented accused wishing witness to act as McKenzie friend.
Moore v Lambeth County Court Registrar [1969] 1 All ER 782; Tomlinson v Tomlinson [1980] 1 All ER 593; R v Bassett [1952] VLR 535; R v Tait [1963] VR 520, referred to.
Aust Dig Criminal Law [3145]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Other irregularities – Unrepresented accused – Procedural determinations made without inviting submissions – Failure to advise as to rights of parties to address jury.

MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, applied.

R v Coman [1955] VLR 289, not followed.
R v Andrews (1938) 27 Cr App R 12; R v Nilson [1971] VR 853; Dietrich v R [1992] HCA 57; (1991) 177 CLR 292; Black v Smith (1984) 30 NTR 29; Abram v Bank of New Zealand (1996) 18 ATPR 41-507; Pezos v Police [2005] SASC 500; (2005) 94 SASR 154; Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, referred to.
Aust Dig Criminal Law [3469]

Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Possession of child exploitation material – Inadequate evidence of knowledge by accused that material was in his custody.
Chidiac v R [1991] HCA 4; (1991) 171 CLR 432; M v R [1994] HCA 63; (1994) 181 CLR 487, applied.
Aust Dig Criminal Law [3475]

Whittaker v Child Support Registrar [2010] FCA 43 (5 February 2010)

ADMINISTRATIVE LAW – departure prohibition order made under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) by Child Support Registrar – whether order valid – whether Registrar obliged to afford procedural fairness by giving an opportunity to be heard where Registrar had received a “tip off” from an anonymous telephone caller that the person was about to leave Australia – whether failure by Registrar to notify person that order had been made, as Registrar was required to do by s 72G of Act, was a failure to accord procedural fairness that rendered order invalid – whether Registrar failed to give such notice. Held: In each case, No.

CONSTITUTIONAL LAW – whether Pt VA of Child Support (Registration and Collection) Act 1988 (Cth) invalid as conferring the judicial power of the Commonwealth on Child Support Registrar – Child Support Registrar was empowered to make departure prohibition order prohibiting a person from departing from Australia for a foreign country if, inter alia, the person had a child support liability and had not made arrangements satisfactory to the Registrar for the child support liability to be wholly discharged – consideration of factors indicative of “judicial power”. Held: Pt VA does not confer judicial power on Child Support Registrar.

EVIDENCE – s 32 of Evidence Act 1995 (Cth) – deponents of affidavits refreshing their memories from contemporaneous notes for the purposes of making their affidavits, and attaching a copy of the notes to the affidavits – whether affidavits rendered inadmissible by s 32 because the court had not given leave for the witness to use the notes to try to revive his or her memory – whether s 32 applied to affidavits made out of court and in contemplation of the hearing. Held: No – s 32 applies only to evidence given in court.

TORT – False Imprisonment – person intending to catch international flight detained in departure hall at airport because of departure prohibition order made in respect of him by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) – intending passenger could have abandoned attempt to depart and retreated out of airport’s departure hall – whether avenue of egress reasonable – statutory defence available to officials who had prevented intending passenger from catching international flight because departure prohibition order made by Child Support Registrar was in force in respect of him – s 72U of Act permitted authorised officers in certain circumstances to prevent person’s departure from Australia. Held: “imprisonment” not established because reasonable egress available and, in any event, statutory defence established.

TORT – interference with contractual relations by unlawful means – person intending to depart Australia by plane to perform contract overseas – departure prohibition order made by Child Support Registrar under s 72D of Child Support (Registration and Collection) Act 1988 (Cth) was in force in respect of him – Customs officers questioned him – Australian Federal Police officers told him he could not fly – mental element of the tort in circumstances in which the respondents are public officials – whether state of mind required for this tort is different from that required for the tort of misfeasance in pubic office. Held: No.

Evidence Act 1995 (Cth) Act ss 32, 34, 52

R v Fowler [2003] NSWCCA 321 (11 November 2003)

[2003] NSWCCA 321

CRIMINAL LAW – Accused convicted of murder – Appeal against conviction – Whether trial Judge erred in her directions to the jury on: lies as evidence of consciousness of guilt; circumstantial evidence; motive; accessorial liability – Whether trial Judge should have warned the jury with respect to particular evidence – Whether trial judge erred in permitting cross-examination of particular witness – Whether trial Judge erred in admitting particular evidence – Whether trial Judge erred in her directions to the jruy on the meaning of an unsworn statement – Appeal agaisnt sentencing – Whether trial judge should have imposed a lesser sentence on the basis that the accused’s liberty had been affected over a length of time due to the circumstances of the case.

Evidence Act, ss 32(2)(b)(i), 38, 55, 137, 165, 192

Steve v Regina [2008] NSWCCA 231 (8 October 2008)

[2008] NSWCCA 231

CRIMINAL LAW – appeal – miscarriage of justice – competence of counsel – failure of counsel to object to irrelevant and prejudicial evidence – evidence that portrayed appellant as violent, sexually predatory and a child molester – failure of counsel to seek direction from trial judge in relation to prejudicial evidence – whether omissions were a tactical decision of defence counsel – failure of trial judge to apply the  Evidence Act 1995 , s 137 – failure to trial judge to direct jury in respect of irrelevant and prejudicial evidence – denial of fair trial amounted to miscarriage of justice – unsafe and unsatisfactory verdict – new trial ordered

Evidence Act 1995 , ss 32, 33, 55, 97, 100, 110

Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 (24 December 2002)

[2002] NSWCA 419

DEFAMATION – justification – substantial truth

DEFAMATION – qualified privilege – reasonableness – ‘Lange’ defence – malice – reckless indifference – lack of honest belief – improper motive

DEFAMATION – damages – harm to reputation – lifestyle – injury to feelings – plaintiff not giving evidence

DEFAMATION – damages – psychiatric injury

DEFAMATION – exemplary damages

APPEAL – credit based findings – ‘Abalos’ principle

STANDARD OF PROOF – civil case – grave allegations – evidence act s140


CORROBORATION – civil case – allegations of criminal conduct

ADMISSION BY CONDUCT – interfering with witnesses – lies

COSTS – offer of compromise in defamation case – interest

Evidence Act 1995  (NSW) ss 32, 48, 135, 140, 164(1), 165

Lowe v Lang [2000] NSWSC 309 (30 March 2000)

[2000] NSWSC 309

EVIDENCE [228] – Witnesses – Refreshing memory – Generally – Documents used to revive memory – Memory revised before swearing affidavits read in evidence – Whether production required under  Evidence Act 1995  (NSW) s 34 – Memory revived from part of privileged document – Rest of document not relevant to witness’ testimony – Whether production of whole document should be required under s 34.

Evidence Act 1995  ss 32, 33, 34, 35, 36