Category Archives: s. 101A

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/50.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/302.html

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)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/984.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/145.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/130.html

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)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/3.html

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/185.html

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)

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/2.html

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/223.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/331.html

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.
http://www.austlii.edu.au/au/cases/act/ACTSC/2010/44.html

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

CRIMINAL LAW AND PROCEDURE

EVIDENCE

DENIAL BY ACCUSED WHEN CONFRONTED BY POLICE WITH ALLEGATION

DENIAL MAINTAINED AT VIDEO RECORDED INTERVIEW HELD SHORTLY THEREAFTER

OBJECTION BY CROWN TO ADMISSION OF EXCULPATORY MATERIAL

HEARSAY

BASIS OF EXCEPTION TO HEARSAY RULE

MAINTENANCE OF COMMON PRACTICE

GENERAL DUTY OF CROWN TO TENDER SUBJECT TO OBJECTIONABILITY OF CONTRIVED MATERIAL

ACCUSED GIVES EVIDENCE FOLLOWING RULING REQUIRING HIM TO DO SO IN ORDER TO MAKE EARLIER DENIALS ADMISSIBLE

RULING ERRONEOUS BUT NO RESULTANT MISCARRIAGE

DISCUSSION OF VARIETY OF APPROACHES TO EVIDENCE OF EXCULPATORY STATEMENTS

SENTENCE

TRIAL JUDGE MISINFORMED AS TO APPLICABLE MAXIMUM PENALTY

IMPOSITIONS IN EXCESS OF MAXIMUM

APPEAL AGAINST SENTENCE ALLOWED AND APPELLANT RESENTENCED

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