Category Archives: s. 046

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 17) and 13 related matters [2014] NSWSC 55 (13 February 2014)

TRADE PRACTICES – misleading or deceptive conduct – the operation of the Trade Practices Act 1974 (Cth) (TPA) ss 51A, 52 and 59(2) – the operation of the Fair Trading Act 1987 (NSW) (FTA) ss 41, 42 and s 54(2) – the relevance of a disclaimer in determining whether conduct was misleading or deceptive – the circumstances in which silence can be misleading or deceptive – the making of implied representations of fact – whether, on the facts of this case, the alleged implied representations were drawn by the plaintiffs – what constitutes a future matter within the meaning of the TPA s 51A and the FTA s 41 – the burden of proof under the TPA s 51A and the FTA s 41 – whether the defendant had reasonable grounds for the representations concerning a future matter within the meaning of the TPA s 51A and the FTA s 41 – the limitation period on a claim for personal injury for misleading or deceptive conduct – the application of the TPA ss 82(2) and 87E
TRADE PRACTICES – unconscionability – the operation of the TPA ss 51AC – the effect of the TPA s 51AA(2) on a claim under s 51AA in circumstances where a claim is made under s 51AC – what constitutes unconscionable conduct within the meaning of the TPA s 51AC – the operation of the Franchising Code of Conduct cl 16(1) – the limitation period on a claim for unconscionable conduct – the application of the TPA s 87F
TORTS – negligent misstatement – whether the defendant had a duty to take reasonable care in making representations to potential franchisees – whether the defendant had a duty of care not to express opinions unless it had reasonable grounds for doing so – whether the defendant breached that duty of care
TORTS – negligent infliction of psychiatric injury – whether the defendant owed a duty of care to prevent mental illness flowing from economic loss in circumstances where the parties were in a commercial relationship – whether, in the circumstances of the case, the defendant ought to have reasonably foreseen that a person of normal fortitude would suffer a recognised psychiatric illness – whether the defendant breached that duty of care – whether the relevant plaintiffs suffered a psychiatric illness – whether that illness was caused by the defendant’s conduct
LIMITATION OF ACTIONS – whether the claims for personal injuries are statute barred by operation of the Limitation Act 1969 (NSW) s 50C – whether an order should be made under the Civil Procedure Act 2005 (NSW) s 65(3)
EMPLOYMENT LAW – the operation of the Industrial Relations Act 1996 s 106 (IR Act) – whether the relevant plaintiffs performed work in an industry – whether the contracts or arrangements between the parties were ones whereby that work was performed – whether the contracts or arrangements were “unfair, harsh or unconscionable” within the meaning of the IR Act s 106 – whether there was a “services contract”, within the meaning of the Independent Contractors Act 2006 (Cth) s 5 between the relevant plaintiffs and the defendant – whether the relevant plaintiffs entered into a contract for services as independent contractors by which they performed work
CONTRACTS – the operation of the Contracts Review Act 1980 (NSW) s 7
PRACTICE AND PROCEDURE – the pleading of multiple express and implied representations – the conduct of complex litigation generally
EVIDENCE – the difficulties of proof encountered in a case based on oral representations – the preparation of affidavits and pleadings – whether evidence from one plaintiff can corroborate evidence given by other plaintiffs – the operation of the rule from Browne v Dunn (1893) 6 R 67 (HL) in complex proceedings – the credit of witnesses generally

Pasqualotto v Pasqualotto [2013] VSCA 21 (19 February 2013)

PERSONAL INJURY – Negligence – Contributory negligence – Statutory duties under the Occupational Health and Safety (Manual Handling) Regulations 1999 and the Occupational Health and Safety (Plant) Regulations 1995 – Jury trial – Directions – Appellant sustained back injury while working as tobacco picker – Where employer directed appellant to continue working after appellant asked to stop – Employers’ knowledge of prior injury to back – Whether employer failed to provide safe system of work – Whether verdict open – Appeal allowed.

PRACTICE AND PROCEDURE – Whether trial judge erred in application of the rule in Browne v Dunne.

Darmanin v Cowan [2010] NSWSC 1118 (1 October 2010)

undue influence
cottage built on defendants’ property at plaintiff’s expense
relationship between plaintiff and defendants broke down
plaintiff required to leave defendants’ property
whether unconscionable for defendants not to reimburse plaintiff for costs of construction of cottage
whether agreement or arrangement between defendants and plaintiff procured by way of unconscientious conduct or undue influence
no benefit unconscionably retained by defendants in circumstances
defendants did not act unconscionably or exercise undue influence in their dealings with plaintiff
whether intention to create legal relations in a domestic or social context
whether relief under Contracts Review Act
no intention to create legal relations
plaintiff’s claim dismissed

Browne v Dunn

R v Heaney [2009] VSCA 74 (17 April 2009)

CRIMINAL LAW – Conviction – Causing serious injury intentionally – Victim stabbed twice – Whether verdict bad for latent duplicity – Whether judge’s directions productive of uncertainty – Whether real prospect that verdict was not unanimous in respect of at least one stabbing – Jury verdict not disclosing whether one or both stabbings established offence – Whether relevant – Application refused.

CRIMINAL LAW – Sentence – Whether sentence of nine years’ imprisonment with non-parole period of six years’ imprisonment manifestly excessive – Very serious example of serious offence – Absence of remorse – Importance of general and specific deterrence, denunciation and protection of community – Matters in mitigation – Self-inflicted injury a form of punishment – Some evidence of rehabilitation – Application refused

Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)

ACCIDENT COMPENSATION – Serious injury application under s 134AB(16)(b) of the Accident Compensation Act 1985 – Application granted by County Court – Appeal to Court of Appeal under s 134AD – Whether serious injury established – Severity of injury – Whether a psychological component – Failure to cross-examine applicant as to observations made by medical practitioners – Rule in Browne v Dunn – Applicant who satisfies loss of earning requirements of s 134AB may claim damages for pain and suffering – Appeal dismissed.

R v Ferguson; R v Sadler; R v Cox [2009] VSCA 198 (8 September 2009)

CRIMINAL LAW – Appeal – Conviction – Conspiracy to traffick heroin in not less than a commercial quantity – Whether evidence could be relied on to show consciousness of guilt – Adequacy of directions on conspiracy – Adequacy of directions on intention to traffick – Whether Browne v Dunn direction necessary – Whether separate trials necessary – Lengthy jury deliberation – Whether judge should have discharged jury – Whether verdicts unsafe and unsatisfactory – Whether material non-disclosure by Crown – Applications refused.

EVIDENCE – Expert – Opinion evidence – Financial betterment – Analysis of unexplained cash transactions and growth in assets – Whether admissible as expert evidence – Whether prejudicial effect outweighed probative value – R v Strawhorn [2008] VSCA 101 distinguished.

EVIDENCE – Corroboration – Whether evidence must tend to prove guilt of accused in order to be corroborative – Whether judge erred in directions as to which evidence could be treated as corroborative.

CRIMINAL LAW – Appeal – Sentence – Whether judge impermissibly brought to bear own assessment of harmfulness of heroin – Application refused.

CONFISCATION – Appeal – Pecuniary penalty order – Whether judge erred in calculating value of benefits derived in relation to offending – Confiscation Act 1997 (Vic) s 67(1)(c) – Appeal dismissed.

A Team Diamond Headquarters Pty Ltd & Anor v Main Road Property Group Pty Ltd & Ors [2009] VSCA 208 (24 September 2009)

PRACTICE AND PROCEDURE – Appeal from costs order following application for interlocutory injunction – Application for leave to appeal – Objection to bench of two judges hearing substantive appeal – Section 11(1A) Supreme Court Act – Amendment of draft Notice of Appeal – Rule 65.07 Supreme Court Rules – Different orders sought from those sought on the interlocutory hearing – Failure to comply with rule in Browne v Dunn on interlocutory application – New arguments raised on appeal.

LEGAL PRACTICE – Obligation of legal practitioners in preparation and presentation of case to assist the court in the efficient use of limited resources – Failure to pursue simpler procedure at interlocutory hearing – Submissions on appeal which ignored overarching responsibility.

COSTS – Order for costs where no determination on merits of application for injunction –Application for joinder of party – Injunction unnecessary – Costs order made on basis of what judge would have decided – Delay in delivering reasons – Adequacy of reasons – Failure to pursue simpler joinder application that would obviate need for lengthy hearing – Leave refused.

Curwen & Ors v Vanbreck Pty Ltd [2009] VSCA 284 (9 December 2009)

TRUST – Discretionary trust – Beneficiaries seeking access to trust documents – Appointment excluding beneficiaries – Whether exclusion for improper purpose – Trustee on notice that improper purpose alleged – Non-disclosure of trustee’s reasons – Whether adverse inference arises – No cross-examination of trustee as to its purpose – Whether trial judge found breach of rule in Browne v Dunn – Fraud on power – Purpose inferred from circumstantial evidence – Improper purpose need not be dominant purpose – Failure to establish actuating or operative improper purpose.

R v Morrow [2009] VSCA 291 (17 December 2009)

Criminal Law – Sexual penetration of student under teachers care – Serious forensic disadvantage – s 61(1A) Crimes Act 1958 – Failure to ‘instruct’ jury – ‘Comment’ by trial judge insufficient – Misleading form of Liberato direction given – R v BDX [2009] VSCA 28 followed – Rule in Browne v Dunn – Extent of counsel’s duty – Whether cross-examination of complainant sufficient where positive case to be advanced – Consequences of breach of obligation – Whether breach permitted adverse inference as to credibility of accused – Whether such a direction should be given – Content of direction – Counts alleging offence between dates – Latent ambiguity – Absence of particulars as to conduct constituting offence – Whether inconsistent verdicts – Combination of errors giving rise to substantial miscarriage.

R v Coswello [2009] VSCA 300 (17 December 2009)

CRIMINAL LAW – Multiple counts of unlawful and indecent assault of male under 16 years – Multiple counts of commission of acts of gross indecency – Conviction appeal – Defence challenge to reliability of complainant’s evidence – Whether trial judge erred when directing jury in relation to cross examination of complainant – Defence request for redirection refused – Operation of rule in Browne v Dunn (1893) 6 R 67 HL in a criminal

trial – Whether resulting substantial miscarriage of justice to applicant – Application of proviso to s 568(1) of Crimes Act 1958 – Appeal allowed.

Baulch v Lyndoch Warrnambool Inc [2010] VSCA 30 (26 February 2010)

COURTS – Practice and Procedure – Trial – Civil jury trial – Conduct of counsel – Breach of rule in Browne v Dunn – Address – Irrelevant Arguments – Comment on plaintiff’s right to workers’ compensation – Misdescription and ridicule of plaintiff’s case – Unfair trial – Miscarriage of justice – New trial ordered.

LEGAL PRACTITIONERS – Duties of counsel – Civil jury trial – Misconduct of counsel – Unfair trial – New trial ordered.

R v Smart [2010] VSCA 33 (4 March 2010)

Criminal law – Conviction – Manslaughter – Circumstantial evidence – Whether prosecutor and the judge below contravened principles stated in R v Thompson [2008] VSCA 144 – Alleged post-interview revelation – Recent invention – Whether rule in Browne v Dunn (1893) 6R 67 breached by prosecutor and/or applicant’s counsel – Alleged lies and other post-offence conduct – Consciousness of guilt – Of what offence – Whether jury should have had reasonable doubt that applicant was the killer – Application refused.

Sentence – Whether judge mischaracterised offence as a serious example of unlawful and dangerous act manslaughter – No specific sentencing error in sentencing remarks – Application refused.

Martin v The Queen [2010] VSCA 153 (24 June 2010)

Criminal Law – Conviction – Whether judge erred in ruling that there was no evidence to support defence of duress – Whether cross-examination of applicant to suggest that she was saying other witnesses had lied was impermissible – Internet print outs of the meaning ‘beyond reasonable doubt’ found in jury room after jury discharged – Whether search in defiance of judge’s directions – Whether breach of s 78A, Juries Act 2000 – Whether assumed irregularities required that there be a new trial – Application for leave to appeal refused.

RWB v R; R v RWB [2010] NSWCCA 147 (12 July 2010)

CRIMINAL LAW – particular offences – offences against the person – sexual offences – sexual intercourse with child under 10 years – inciting an act of indecency by person under 16 years – assault with act of indecency on person under 10 years
CRIMINAL LAW – appeal against conviction – procedure – directions to jury – definition of “beyond reasonable doubt” – circumstances permitting expansion of “beyond reasonable doubt” direction do not arise – no miscarriage of justice – submission to jury by Crown prosecutor – Browne v Dunn – submission adopted by trial judge – caution should be exercised in directions to jury concerning failure of accused’s counsel to comply with rule in Browne v Dunn – practical effect of direction – no miscarriage of justice
CRIMINAL LAW – procedure – r 4 Criminal Appeal Rules – directions the subject of the grounds of appeal not objected to at trial – grounds ought to be determined on their merits – grounds of appeal do not involve “question of law alone” – leave required – s 5(1)(b) Criminal Appeal Act – Rasic v R – leave granted – application of proviso – s 6 Criminal Appeal Act – assessment of evidence in accordance with Weiss v R – no substantial miscarriage of justice in conviction of appellant – errors established did not impact upon correct verdict – appeal against conviction dismissed
CRIMINAL LAW – Crown appeal – error in failing to impose sentences in accordance with Pearce v The Queen – sentencing under past sentencing patterns – care must be taken not to evaluate sentences by reference to current expectations – some sentences imposed failed to reflect criminality and objective gravity of offences – error in taking into account circumstances of hardship in appellant’s custody – failure to accumulate – aggregate sentence also manifestly inadequate – sentences quashed, appellant re-sentenced

91 The complaint derives from the ancient rule in Browne v Dunn (1893) 6 R 67. Lord Herschell LC formulated the rule as:

“… where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit … If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him … It will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”

Lord Halsbury and Lord Morris spoke to similar effect.

92 Much has been written in more than a century since the rule was pronounced. A comprehensive analysis of the rule and its application in particular circumstances was undertaken by Hunt J (as he then was) in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 (at 16). A similar exercise was undertaken by Legoe J in the Full Court of the Supreme Court of South Australia in R v Manunta (1989) 54 SASR 17 at 26-38. The rule, particularly in its application to criminal trials, was examined by Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 686-692. Finally (finally for present purposes – I do not suggest this is an exhaustive catalogue of the attention paid to Browne v Dunn), Sheller JA considered the rule, again, in relation to a criminal trial, in R v Abdallah [2001] NSWCCA 506; 127 A Crim 46.

93 It is commonly accepted that the rule is a rule of practice based upon the goal of achieving fairness in the conduct of litigation.

94 In Manunta, there were three separate (but related) issues on which it was said counsel for the defence had failed to cross-examine prosecution witnesses. The trial judge outlined, in simple terms, the Browne v Dunn rule, and explained its purpose. He told the jury that it was for them to decide the consequence of the failure to cross-examine on those issues. He told the jury they were entitled to ask themselves could those be:

“… matters of recent invention concocted by the defendant and his witness in an attempt to cast doubts on the evidence of the police officers without giving to the police officers the opportunity to contradict those propositions?”

King CJ, with whom Bollen J agreed, held that each point was legitimately open for the consideration of the jury.

95 However, he added some cautionary words. He expressed concern about the prominence given to those matters in the course of summing up, while noting that it was legitimate to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or witnesses subsequently depose. But he added:

“It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds. Whether such matters should be brought to the attention of the jury and the manner in which that should be done are matters for decision by the trial judge in the atmosphere of the trial.” (pp 23-24)

96 In the particular circumstances of that case, his Honour was of the view that the matters had little weight, were explained to the jury quite fairly, and that no error had been demonstrated. Legoe J, who gave separate reasons, agreed that no error had been demonstrated.

97 Birks also involved the conduct of a criminal trial of serious offences. The inexperienced counsel representing the accused failed to cross-examine the complainant with respect to certain matters of considerable significance. The accused gave evidence and was vigorously cross-examined. It was suggested that, because the complainant had not been cross-examined on those matters, the evidence he subsequently gave about those matters was fabricated. Considerable emphasis was placed upon the failure to cross-examine, both in the address of the Crown prosecutor, and in the summing up of the judge.

98 Gleeson CJ adopted the views of King CJ in Manunta. In the circumstances of Birks, his Honour held that:

“… the issue was pursued by the Crown Prosecutor, and taken up by the learned judge, on the subject of the credibility of the [accused’s] evidence, in a manner which was inconsistent with the need for caution stressed by King CJ …” (p 692)

99 Abdallah was yet another case in which the rule was invoked in the context of criminal proceedings. In that case a highly experienced Queen’s Counsel had failed, in re-examination, to address an apparent inconsistency between what, in opening to the jury, he said he anticipated the evidence would be, and what was said by his client in cross-examination. The Crown put some emphasis upon this in final address to the jury, and that also was taken up by the trial judge, who repeated the Crown submission that what counsel expected the accused to say and what the accused did in fact say was not due to any incompetence on the part of Queen’s Counsel:

“… but to the fact that the accused could not get his story straight in relation to his knowledge of, or his involvement with …”

the subject matter of the proceedings.

100 Sheller JA, having referred to Browne v Dunn, Birks, and Manunta, said:

“As a practical matter, I do not think that this Court should assume that a barrister even of [Queen’s Counsel’s] experience could not make such a mistake. Experience does not, unfortunately, preclude error. More importantly, as was noted above, this Court is not primarily concerned with the actual cause of the inconsistency. Even if the chance of the inconsistency being due to an error or misunderstanding on the part of counsel for the appellant at trial was small, this should none the less have been suggested as a possibility to the jury. The comment of the trial Judge here, though, allowed for no such possibility. The trial Judge’s statement that ‘you might expect counsel or certainly competent Queen’s counsel, to open the case on what he expected the accused to say’ is significant. This statement was both factually questionable, since even eminent and experienced counsel on occasion make mistakes, and more importantly, inappropriate given the caution recommended in approaching this subject in Birks and Manunta. The emphasis given to [Queen’s Counsel’s] competence could only have served to reinforce to the jury that the only explanation for the inconsistency was that the accused had changed his story.” (italics in original, [27])

101 These authorities make it very plain that a trial judge should exercise great caution in directions to the jury concerning the failure of an accused’s counsel to comply with the rule in Browne v Dunn. Browne v Dunn is an ancient and useful rule of practice and casts a considerable burden of care on counsel. But counsel are fallible and more than one inference may be drawn from non-compliance with the rule. Opposing counsel will always suggest that the only, or the proper, inference is that the client (or witness) failed to include the contentious matter in his/her instructions or statement. But the reality is that that is far from the only available inference, and it may be, and often is, quite unfair to suggest to a jury that that is the only inference, or the inference that they should draw.

Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 (5 August 2009)

APPEAL AND NEW TRIAL – new trial – whether the trial judge failed to resolve evidence concerning the pleaded agreement – CONTRACTS – partly written and partly oral – principles for determining whether a contract is wholly written, partly written and partly oral, or wholly oral – role of surrounding circumstances – admissibility of evidence of subsequent conduct – scope of operation of the parol evidence rule to partly written and partly oral contracts – CONTRACTS – general contractual principles – construction and interpretation of contracts – whether surrounding circumstances can be looked to without needing to find ambiguity – present state of High Court authority on whether ambiguity is a precondition to using surrounding circumstances – INTERPRETATION – construction of undertakings and court orders – admissibility of evidence of surrounding circumstances – EVIDENCE – whether evidence not cross-examined upon must be accepted by the judge or jury – circumstances when a judge can reject evidence not cross-examined – EQUITY – equitable remedies – specific performance – part performance – part performance to be pleaded in reply

R v Kain [2009] ACTSC 103 (26 August 2009)

[2009] ACTSC 103

CRIMINAL LAW – trial by Judge alone – drug offences – possession of drug of dependence – drugs found in person – contravention of s 4(2) of Intoxicated People (Care and Protection) Act 1994 (ACT) – discretion to admit evidence obtained in contravention of an Australian law – rule in Brown v Dunn applied – leave recall of police witness exercised – circumstantial evidence of exclusive possession and knowledge – finding of guilt in respect of the charge

Evidence Act 1995 (Cth), s 46, s 138

Jardein Pty Ltd v Stathakis [2007] FCAFC 148 (12 September 2007)

[2007] FCAFC 148
CORPORATIONS — appeal from orders requiring sale of appellant’s share in company to respondent — whether primary judge erred in finding value of company to be nil — whether evidence of key witness “glaringly improbable” or “contrary to an incontrovertible fact” — whether appellant denied natural justice — whether primary judge erred in failing to order winding up of company

Evidence Act 1995 (Cth) s 46

Australian Securities and Investments Commission v Macdonald (No 10) [2009] NSWSC 53 (13 February 2009)

[2009] NSWSC 53

EVIDENCE – Admissibility and Relevancy – Application in 12th defendant’s case to tender 87 financial market analysts’ reports relevant to an assessment of the circumstances that existed at the time it is alleged by the Australian Securities and Investments Commission that it was in breech of provisions of the Corporations Act 2001 (Cth) – Reports not put to expert merchant banker called by ASIC who opined on 69 other reports and who gave his evidence in October 2008 – Evidence in case completed except for 12th defendant’s tender of documents including the reports – ASIC had initially treated the reports as relevant to the case – Whether in the circumstances it was open to the 12th defendant to challenge underlying assumptions of the expert by the tender of the reports Browne v Dunn (1894) 6 R 67 – Whether tender should be rejected or ASIC should be at liberty to re-open its case or present a case in reply by recalling the expert – Whether discretion should be exercised under the Evidence Act 1995, s 135 – Relevance of some reports to another issue