Category Archives: s. 101A

Audsley v The Queen [2014] VSCA 321 (8 December 2014)

CRIMINAL LAW – Appeal – Conviction – Aggravated burglary, armed robbery, recklessly causing serious injury and assault – Evidence – Credibility of witness – Expert evidence – Evidence of neuropsychologist as to effect of drug use on reliability of memory – Whether wrongly excluded – Crown concession of error – Appeal allowed – Evidence Act 2008 , ss 101A, 108C, 192.

EVIDENCE – Credibility rule – Exception – Expert evidence concerning credibility of witness – Effect of drug use on reliability of memory – Whether admissible – Discretion to exclude – Whether wrongly excluded – Evidence Act 2008 ss 101A, 108C, 192.

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 (28 March 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal to Appeal Division of ACT Civil and Administrative Tribunal – appeal removed into Supreme Court – nature of appeal in Supreme Court.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – whether permitting Law Society to amend charges deprived appellant of procedural fairness – whether Law Society was a model litigant – whether Law Society misled ACT Civil and Administrative Tribunal about nature and significance of amendments – no breach of procedural fairness – no misleading of Tribunal – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – admissibility of credibility evidence arising in cross-examination of appellant about peripheral aspects of separate matter also subject of charges brought by Law Society – admissibility of prejudicial credibility evidence – whether credibility findings should be set aside – whether ACT Civil and Administrative Tribunal misunderstood cross-examination – whether Tribunal misled by Law Society about significance of cross-examination – whether Law Society sought to mislead Supreme Court about significance of cross-examination – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – challenge to factual findings of ACT Civil and Administrative Tribunal – whether evidence to support factual findings – whether Tribunal obliged to accept appellant’s evidence of his state of mind at relevant times – whether Tribunal inconsistent in treatment of witnesses cross-examined without access to relevant documents – no error in Tribunal’s conclusions – appeal dismissed.

Col v R [2013] NSWCCA 302 (3 December 2013)

CRIMINAL LAW – appeal against conviction – offence of causing grievous bodily harm with intent to cause grievous bodily harm – appellant threw methylated spirits onto bed where victim lay and ignited bedclothes – victim retracted earlier statement to police – whether trial judge erred in admitting into evidence complainant’s statement to police – whether use of victim’s statement to police resulted in miscarriage of justice – whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice – whether Zoneff direction was required – whether verdict is unreasonable or cannot be supported having regard to evidence – appeal dismissed

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Doolan v R [2013] NSWCCA 145 (3 July 2013)

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence

Dymocks v Capral [2013] NSWSC 130 (20 February 2013)

EVIDENCE – admissibility – where letter written by party’s solicitor to insurer – party not the author of the letter and made no representations by or in it – letter not admissible to prove the truth of the the previous representations made by its author – letter not admissible to prove suggested admission by party.

Bateson v Chief of Army [2012] ADFDAT 3 (25 May 2012)


DEFENCE AND WAR – appeal – charges of insubordination – grounds – convictions unreasonable and cannot be supported with regard to the evidence – wrong decisions on questions of law made – material irregularity – convictions unsafe and unsatisfactory – found – no material error in conduct of trial – no error in taking into account uncharged acts – no irregularity found – mistake of fact ground – possible defence not taken into account at trial – appellant deprived of chance of acquittal – miscarriage of justice occurred – appeal allowed – convictions quashed – no retrial ordered

DPP v Kocoglu [2012] VSC 185 (9 May 2012)

CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.

R v Meyboom [2012] ACTCA 2 (31 January 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – leave to appeal out of time – principles on which leave should be granted – explanation for delay – whether miscarriage of justice – leave refused.

APPEAL AND NEW TRIAL – practice and procedure – when time for appeal begins to run in criminal matters – Court Procedures Rules 2006 (ACT) Div 5.4.7 – meaning of conviction.

APPEAL AND NEW TRIAL – practice and procedure – cross appeal – whether conviction appeal can be cross-appeal against sentence appeal – need for fresh appeal.

DPP v Polutele [2011] VSC 223 (26 May 2011)

CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements – Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R [1988] HCA 43; (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act – Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.

Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 (17 December 2010)

CORPORATIONS – misleading announcement sent to ASX – whether pleaded version of draft announcement taken to board meeting – whether resolution to approve draft announcement and authorise for sending to ASX passed at board meeting – detailed consideration of factual circumstances before, during and after board meeting – consideration of constraints in appellate review – discussion of advantages of trial judges – discussion of advantages in appellate courts – consideration of s 140 of Evidence Act and Briginshaw v Briginshaw – failure to call witnesses who were at board meeting – whether ASIC under obligation akin to prosecutorial duty – whether appropriate to reason by analogy from criminal procedure to civil penalty proceedings – discussion of civil penalty regime – not appropriate to reason by analogy – no prosecutorial duty – whether ASIC’s obligation to act fairly required witnesses to be called – discussion of obligation of fairness owed by government agencies – consideration of principles of fair trial – consideration of government agencies as model litigants – consideration of ASIC’s role as regulator – consideration of ASIC’s powers under ASIC Act and Corporations Act – failure to call witnesses may constitute breach of obligation of fairness – consideration of evidentiary principles enunciated in Blatch v Archer, Jones v Dunkel and Whitlam v ASIC – failure to call witnesses taken into account in deciding whether onus of proof satisfied – breach of obligation of fairness taken into account in deciding whether onus of proof satisfied – obligation of fairness breached – burden of proof not discharged – not proved that resolution passed. CORPORATIONS – directors’ statutory duty of care and diligence under s 180 of Corporations Law – assuming resolution passed, whether non-executive directors contravened duty in voting for resolution – discussion of duty of care and diligence of non-executive directors – non-executive directors may rely on management and officers to a greater extent than executive directors – duty dependent on facts of each case – consideration of factual circumstances surrounding resolution – if resolution passed, contravention properly found. CORPORATIONS – definition of officer in s 9 of Corporations Law – consideration of company secretary as officer when also general counsel – whether participation in matters that affected the whole or a substantial part of the business – participation need not be as one of those in ultimate control – test is one of participation in making of decision – participation more than administrative arrangement – must be real contribution to making of decision – participation made out – whether statutory duty extends to any matter which falls within the scope of responsibilities as company secretary – duty extends to responsibilities actually carried out by company secretary – relevant acts and omissions were within responsibilities as company secretary. CORPORATIONS – statutory duty of care and diligence of company secretary – assuming resolution passed, whether duty of care breached in failing to advise draft announcement was misleading – would be breach – whether duty breached in failing to warn of limitations in cash flow models – no breach because knowledge of limitations not proved – whether duty breached in failing to advise or obtain advice for board or CEO concerning disclosure of Deed of Covenant and Indemnity – whether company secretary could rely on absence of warning by external advisers – reliance not available – breach properly found – whether breach of duty in failing to advise nature of “best estimate” – on facts, no breach – whether breach in failing to advise of failure to take into account superimposed inflation – breach properly found. CORPORATIONS – definition of officer in s 9 of Corporations Law – whether chief financial officer participated in decisions that affected the whole or substantial part of company’s business – not confined to acts and omissions alleged to have been in breach of statutory duty as officer – first consider whether person is an officer – then consider whether breach of duty – participation made out – whether chief financial officer had capacity to affect company’s financial standing – test focuses on the particular officer, not an abstract officer – capacity made out. CORPORATIONS – statutory duty of due care and diligence of chief financial officer – whether duty breached in failing to warn of limitations in cash flow analysis –breach properly found – whether duty breached in failing to advise nature of “best estimate” and failing to take into account superimposed inflation – on facts, no breach. EVIDENCE – admissibility – admissibility of prior inconsistent statement for non-hearsay purpose – consideration of R v Adam and Adam v The Queen – no inconsistency identified – admissibility as admissions of documents stating resolution had been passed – consideration of Lustre Hosiery Limited v York – whether circumstances were such as to make it unlikely that erroneous statements would be allowed to pass unchallenged – no error shown in ruling not admissible.

R v Peter John Parkes [2010] ACTSC 44 (21 May 2010)

CRIMINAL LAW – trial by judge alone – offence of trafficking in a controlled drug other than cannabis, namely heroin – whether accused sold heroin or gave it as a gift – sale not proved beyond reasonable doubt – accused found not guilty.

EVIDENCE – prior inconsistent statements – assessment of explanation for making prior inconsistent statement – consideration of what use can be made of prior inconsistent statement – operation of credibility rule and hearsay rule – prior inconsistent statement admitted to prove the truth of the facts asserted in the statement.

CRIMINAL LAW – circumstantial case – judge asked to draw particular inferences from evidence – whether evidence supports those inferences – requirement that no inference should be drawn from direct evidence unless it is the only rational inference available.

CRIMINAL LAW – prosecution request that if verdict of acquittal to be entered, the Court should instead direct the accused to be indicted on a charge of possession of heroin – operation of s 296 Crimes Act 1900 (ACT) – s 296 not applicable where accused to be acquitted – possession charge no longer indictable.

Evidence Act 1995 (Cth), ss 38, 59, 60, 101A(b), 102, 103, 192

R v Rivkin [2004] NSWCCA 7 (5 February 2004)

[2004] NSWCCA 7

Appeal against conviction – insider trading – appellant found guilty of contravening s1002G(2) Corporations Act 2001 – Whether miscarriage of justice – actual or ostensible bias of trial judge – former professional association – whether “personal animosity” involved in sentence – Whether trial judge erred in not directing verdict of acquittal – meaning of “information” – possession of information as particularised – materiality – Admissibility of evidence – relevance – prejudicial/probative value – medical evidence as to witness’ capacity to give reliable evidence or to present more attractively – Whether summing up unfair – judicial comment/warning – Whether verdict unreasonable – Fitness to stand trial – brain tumour – frontal lobe dysfunction – appellant’s mental state – conduct at trial – credibility – expert evidence – mental element of offence – Fresh evidence of undiagnosed meningioma – relevance on appeal to issues of fitness to stand trial, miscarriage stemming from inappropriate behaviour, mens rea and sentence – Equality before the law – law’s concerns regarding fitness is with capacity to understand and follow proceedings not with maximising capacity to present as attractive personality – sentencing in “white collar” criminal matters – court’s duty not to be swayed by “community attitudes” in particular cases as promoted by media – Appeal against sentence – whether sentence manifestly excessive – whether miscarriage of sentencing judge’s discretion – insider trading not a “victimless” crime – appellant’s public persona – good character – personal and general deterrence – finding of “contemptuous arrogance” – no contrition – impact of fresh evidence as to appellant’s medical and mental state where absence of evidence as to any change of attitude by prisoner – D

Evidence Act 1995 ss102-110

R v Rymer [2005] NSWCCA 310 (6 September 2005)

[2005] NSWCCA 310

















s59 Evidence Act 1995

Palmer v R [1998] HCA 2; 193 CLR 1; 151 ALR 16; 72 ALJR 254 (20 January 1998)

[1998] HCA 2

Criminal law – Sexual offences – Cross-examination of accused as to whether complainant had motive to lie – Relevance – Inviting jury to speculate – Risk of reversal of onus of proof – Whether judge’s directions capable of neutralising prejudicial effect of cross-examination.

Criminal law – Sexual offences – Unsafe and unsatisfactory verdict – Alibi.

Nicholls v R, Coates v R [2005] HCA 1; 219 CLR 196; 213 ALR 1; 79 ALJR 468 (3 February 2005)

[2005] HCA 1

Criminal law – Evidence – Admissibility of admissions made off-video during interview with accused – Whether reasonable excuse for not videotaping admissions – Criminal Code (WA), s 570D(2)(b), (4).

Criminal law – Evidence – Admissibility of evidence of prior inconsistent statement of witness – Whether evidence of statement went to issue – Whether admissible as exception to rule against admission of collateral statements – Whether exceptions of bias, interest or corruption applicable – Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination.

Evidence – Criminal trial – Prior inconsistent statement of witness – Whether admissible as exception to rule against collateral statements – Admissions allegedly made off-video during interview by police – Whether reasonable excuse for not videotaping such admissions.

Criminal law – Evidence – Whether evidence of prior inconsistent statement hearsay – Whether exception to hearsay rule.

Criminal law – Jury directions – Whether trial judge’s direction accorded with McKinney v The Queen – Appropriateness of reference to possible perjury on part of police.

Criminal law – Evidence – Admissions – Adequacy of trial judge’s direction – Whether need for McKinney direction.

Words and phrases – “interview”, “reasonable excuse”.

Criminal Code (WA), s 570D.

Evidence Act 1906 (WA), s 21.

Goldsmith v Sandilands [2002] HCA 31; (2002) 190 ALR 370; (2002) 76 ALJR 1024 (8 August 2002)

[2002] HCA 31

Evidence – Admissibility – Negligence – Collateral facts – Credibility – Whether failure to allow appellant to reopen his case to adduce evidence in reply going to his credit constituted a miscarriage of justice.

Evidence – Evidence available only after close of appellant’s case – Whether Commissioner erred in not allowing appellant to reopen his case to adduce such evidence – Whether miscarriage of justice in the circumstances.

Adam v R [2001] HCA 57; 207 CLR 96; 183 ALR 625; 75 ALJR 1537 (11 October 2001)

[2001] HCA 57

    A Note to Section 101A states “Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.”

Criminal law – Evidence – Whether trial judge erred in admitting prior inconsistent statements of prosecution witness – Relevance of prior inconsistent statements – Application of credibility rule – Exceptions to hearsay rule – Prior inconsistent statements as evidence of the truth of the representations.

Criminal law – Evidence – Unfavourable witnesses – Whether trial judge erred in granting prosecution leave to cross-examine its own witness – Unreliable evidence.

Evidence – Prior inconsistent statements – Relevance of such statements – Whether evidence of the truth of representations – Whether judge erred in granting leave to prosecutor to cross-examine its own witness.

Evidence Act 1995  (NSW), ss 38(1), 38(3), 38(6), 55(1), 59(1), 60, 102, 103, 192(2).

Papakosmas v R [1999] HCA 37; 196 CLR 297; 164 ALR 548; 73 ALJR 1274 (12 August 1999)

[1999] HCA 37

Evidence – Criminal trial – Sexual assault – Evidence of recent complaint – Hearsay evidence – Whether evidence of recent complaint relevant to facts in issue – Relationship between common law and  Evidence Act 1995   (NSW) – Whether use of evidence unfairly prejudicial or misleading or confusing – Limiting use of evidence – Direction to jury.

Criminal law and procedure – Appeal – Criminal trial – Objection not taken at first instance – Whether leave to argue should have been granted.

Words and phrases – “relevance”, “unfairly prejudicial”.

Evidence Act 1995  (NSW), ss 9, 55, 56, 59, 66, 136.

R v Chen & Others [2002] NSWCCA 174 (11 June 2002)

[2002] NSWCCA 174

Criminal law – Customs Act 1901 (Cth) s 233B – importation of prohibited goods -narcotics – heroin – appellants convicted at trial – appeal against conviction and sentence

Courts – jurisdiction – inherent powers – acts of Commonwealth marine vessel in pursuit of appellants’ vessel – pursuit of compulsive nature – whether nature of pursuit deprived court of jurisdiction – whether proceedings an abuse of process

Evidence – admissibility –  Evidence Act 1995  (NSW) s 138 – discretion to exclude illegally or improperly obtained evidence – whether seizure and search of marine vessel within Australian waters unlawful or irregular – whether evidence so obtained colourable by any such unlawful or irregular conduct – whether admission of evidence a miscarriage of discretion

Constitutional law – judicial powers – Constitution Act 1901 (Imp) s 71 – whether power of Director of Public Prosecutions under Crimes Act 1914 (Cth) s 21E to apply to Court for increase of sentence an exercise of Commonwealth judicial power

Evidence – admissibility –  Evidence Act 1995  (NSW) s 102 – whether evidence of undertaking relevant only to a witness’ credibility – evidence of witness’ status

Criminal law – sentence – serious drug offences – life term without parole – principles relating to orders for