Category Archives: s. 003

Smart v Tasmania [2013] TASCCA 15 (23 December 2013)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2013/15.html

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage of justice – Misdirection or non-direction – Misdirection – Reasonable doubt – Examination of doubt suggested.

Graham v R [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1, followed.

Aust Dig Criminal Law [3466]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage of justice – Misdirection or non-direction – Non-direction – Conduct of accused after two crimes committed – Possible inference of consciousness of some wrongdoing – Edwards direction not given.

Edwards v R [1993] HCA 63; (1993) 178 CLR 193, distinguished.

Woon v R [1964] HCA 23; (1964) 109 CLR 529, referred to.

Aust Dig Criminal Law [3470]

Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Murder – Circumstantial evidence – Guilty verdict open to jury only if unchallenged expert evidence rejected.

Shepherd v R [1990] HCA 56; (1990) 170 CLR 573; M v R [1994] HCA 63; (1994) 181 CLR 487; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521; Morris v R [1987] HCA 50; (1987) 163 CLR 454; Chidiac v R [1991] HCA 4; (1991) 171 CLR 432, referred to.

Aust Dig Criminal Law [3475]

Deputy Commissioner of Taxation, in the matter of ABW Design & Construction Pty Ltd v ABW Design & Construction Pty Ltd [2012] FCA 346 (4 April 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/346.html

CORPORATIONS – winding up – statutory demand – proof of service by post where registered office of corporation included a post code – where post code was obscured on envelope containing statutory demand – whether compliance with statutory requirements for postal service pursuant to s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth) considered

Held: non-compliance with s 109X of the Corporations Act 2001 (Cth) and s 28A of the Acts Interpretation Act 1901 (Cth)

EVIDENCE – presumptions pursuant to s 29 of the Acts Interpretation Act 1901 (Cth) and s 160 and s 163 of the Evidence Act 1995 (Cth) – service of documents on companies by post – statutory presumptions as to time of service where document posted to registered office – no evidence led as to when documents were delivered – proof of non-receipt

Held: presumptions rebutted

Deputy Commissioner of Taxation v Clear Blue Developments Pty Ltd [2010] FCA 1223 (5 November 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1223.html

BANKRUPTCY AND INSOLVENCY – Winding up – Application by Deputy Commissioner of Taxation to wind up a company for failure to comply with a statutory demand – Whether statutory demand and accompanying affidavit were served in accordance with s 109X of the Corporations Act 2001 (Cth) – Whether inferences could be made from affidavit of service of demand as to compliance with s 109X of the Corporations Act 2001 (Cth)

Evidence Act 1995 (Cth) ss 3, 160, 163, 183
Evidence Act 1995 (NSW) s 160
Evidence Act 2008 (Vic) s 160

Fuller & Anor v Resource Management and Planning Appeal Tribunal [2009] TASSC 51 (21 July 2009)

http://www.austlii.edu.au/au/cases/tas/TASSC/2009/51.html

Administrative Law – Judicial review – Grounds of review – Generally – No evidence ground advanced under the cover of an improper exercise of power ground.
Judicial Review Act 2000 (Tas), ss17(2)(e) and 20(b).
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, applied.
Aust Dig Administrative Law [1028]

Clifford v R [2004] TASSC 16 (10 March 2004)

http://www.austlii.edu.au/au/cases/tas/TASSC/2004/16.html

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Identification evidence – Direction to jury – Whether warning required or advisable – What amounts to “identification evidence”.

Evidence Act 2001  (Tas), ss3(1), 116.

R v Smith [2000] NSWCCA 468; Dhanhoa v R [2003] HCA 40; (2003) 77 ALJR 1433; 199 ALR 547, applied.

Aust Dig Criminal Law [613]

Martin v Medical Complaints Tribunal [2006] TASSC 73 (6 October 2006)

http://www.austlii.edu.au/au/cases/tas/TASSC/2006/73.html

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Not bound by the rules of evidence – Evidence improperly or illegally obtained – Discretion to exclude evidence.

Forensic Procedures Act 2000 (Tas), s46.

Evidence Act 2001  (Tas), ss3, 4, 8, 138.

Medical Practitioners Registration Act 1996 (Tas), ss50(12), 51(1), Sch5, cl 1(b).

R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482; Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82, referred to.

Aust Dig Professions and Trades [189]

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Nature of proceedings.

Medical Practitioners Registration Act 1996 (Tas), ss49E, 51.

Dickens v The Law Society A42/1981; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN NSW 136; Johns v Law Society of New South Wales (1982) 2 NSWLR 1; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366, referred to.

Aust Dig Professions and Trades [189]

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – Appeal by way of re-hearing from a statutory tribunal – Counsel’s failure to comply with client’s instructions – Miscarriage of justice.

Adamson v Pharmacy Board of Tasmania [2004] TASSC 32; Fernando v Medical Complaints Tribunal (No 2) (2003) Tas R 337; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366; R v Birks [1987] NSWLR 667; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124; Nudd v R [2006] HCA 9; (2006) 80 ALJR 614, referred to.

Aust Dig Appeal and New Trial [85]