Category Archives: s. 029

Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 (24 September 2010)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/125.html

EQUITY – director – fiduciary duties – company acting as agent for a joint venture – whether director can act in competition with the principal

PRACTICE AND PROCEDURE – evidence – cross examination – cross examination by two counsel – when permitted

Evidence Act 1995 (Cth) ss 27, 29(1), 41(1)(b)

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

http://www.austlii.edu.au/au/cases/tas/TASCCA/2010/11.html

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]

LMI v Baulderstone [2001] NSWSC 688 (14 August 2001)

[2001] NSWSC 688

EVIDENCE – witness statement reporting conversation in indirect speech – form does not affect admissibility – desirability of words actually spoken being reported if remembered even in part – preferable in this case that the evidence be adduced orally

DECISION:
Paragraph 33 of witness statement not to be read; leave to adduce oral evidence given

Australian Securities & Investments Commission v Macdonald (No 7) [2008] NSWSC 1367 (16 December 2008)

[2008] NSWSC 1367

EVIDENCE – Admissibility and Relevancy – Transcript of evidence volunteered by 5th defendant to plaintiff under a protocol containing a provision that it would not be tendered in evidence against the 5th defendant in a proceeding for the imposition of a penalty against him – Civil penalty proceedings – Plaintiff ordered to provide transcript to other parties in the proceedings – 1st defendant sought to cross-examine on the transcript – 1st defendant not bound by the protocol or s 68(3) of the Australian Securities and Investments Commission Act 2001 (Cth) – Whether 1st defendant bound by confidentiality – Whether equity would grant an injunction – Whether prevented from cross-examining by s 127(1)(a) of Australian Securities and Investments Commission Act or by the Evidence Act 1995, s 26, s 29, s 42, or s 44 – Voir dire held under s 189 to determine whether, in terms of s 135, the 5th defendant would be unfairly prejudiced by the admission of the cross-examination