Faris & Bagaric Uniform Evidence

http://www.austlii.edu.au/au/cases/cth/HCA/2010/15.html

1 FRENCH CJ, GUMMOW, CRENNAN AND BELL JJ. This matter concerns an application to remove, from the Register of Trade Marks (“the Register”), a trade mark in respect of which the appellant, E. & J. Gallo Winery (“Gallo”), is the registered owner.
2 In the Federal Court of Australia, Gallo claimed that the respondent, Lion Nathan Australia Pty Limited (“Lion Nathan”), had infringed Gallo’s Australian trade mark registration no 787765 for the trade mark “BAREFOOT”, registered since 9 March 1999 under the provisions of the Trade Marks Act 1995 (Cth) (“the Trade Marks Act”) in class 33 in respect of “Wines being goods in class 33″ (“the registered trade mark”). Gallo was unsuccessful in this infringement claim before the primary judge (Flick J)[1] but successful on appeal to the Full Court of the Federal Court of Australia (Moore, Edmonds and Gilmour JJ) (“the Full Court”)[2].

[1959] HCA 8

Negligence – Action – Collision between motor vehicles – No direct evidence of negligence – Matter of inference from proved facts – Sufficiency of facts to support inference.

Practice – Direction to jury – Inference of negligence open on proved circumstances – Whether inference should be drawn – Defendant able to explain facts from &which inference sought to be drawn – Failure of defendant to give evidence – What reliance to be placed by jury on such failure in deciding whether or not to draw inference – Nature of direction to jury.

Practice – Non-suit – Verdict by direction – History – Application in New South Wales.

http://www.austlii.edu.au/au/cases/cth/HCA/1996/15.html

High Court – Practice and procedure – Stay and like relief pending hearing of application for special leave to appeal – Jurisdiction to provide relief – Extraordinary or exceptional character of – Ruling on legal professional privilege – Effective loss of confidentiality if relief refused – Balance of convenience affecting lengthy trial – Relief refused.

Legal Practitioners – Client privilege – Protection of confidences – Nature of privilege as defensive of civic rights – Loss of privilege by waiver – Whether client knowingly and voluntarily disclosed substance of advice – Decision of primary judge arguably correct – No substantial prospect of special leave to appeal being granted – Interim relief refused.

Evidence – Client’s legal professional privilege – Waiver of confidentiality – Whether client had disclosed to another person the substance of the advice – Publication in company documents concerning receipt of legal advice supporting company’s position – Decision that privilege waived arguably correct – Interim relief refused.

Company law – Part B statement – Independent valuer’s report – Reference to existence of legal advice supporting the position of company – Whether reference constitutes waiver of legal professional privilege – Decision that it does arguably correct – No substantial prospect of grant of special leave to appeal to High Court – Interim relief refused.

Evidence Act 1995 (NSW), ss 118, 122(2).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html
Occupational health and safety – Statutory duty – Occupational Health and Safety Act 1983 (NSW), ss 15 and 16 provided duties of employer to “ensure the health, safety and welfare at work of all the employer’s employees” and that “persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking” – Section 53(a) provided a defence where it was “not reasonably practicable … to comply with the provision of this Act” – Breach of duty criminal offence – Statement of offences as particularised did not identify what measures defendant could have taken but did not take to fulfil duty – Whether statement of offence must identify act or omission said to constitute contravention of s 15 or s 16 – Whether failure to charge act or omission an error of law – Whether error on the face of the record – Whether jurisdictional error.

Evidence – Competence and compellability of accused persons – Joint trial – Industrial Relations Act 1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules of evidence – Evidence Act 1995 (NSW), s 17(2) provided that a defendant is not competent to give evidence as witness for prosecution – No power of Industrial Court of New South Wales to dispense with s 17(2) – Defendant called as witness for prosecution – Whether jurisdictional error – Whether error on the face of the record.

Administrative law – Jurisdictional error – Error of law on the face of the record – Whether orders in nature of certiorari available.

Statutes – Privative clause – Industrial Court of New South Wales – Construction of privative clause – Whether privative provision effective to prevent review for jurisdictional error – Whether effective to prevent review for error of law on the face of the record – Relevance of exclusion of right to appeal to Supreme Court of New South Wales and to High Court of Australia.

Constitutional law (Cth) – Chapter III – State Supreme Courts – Power of State Parliament to alter defining characteristic of Supreme Court of a State – Supervisory jurisdiction – Whether a defining characteristic is power to confine inferior courts and tribunals within limit of their authority to decide.

Procedure – Costs – Appellate court exercising supervisory not appellate jurisdiction – Appellate court makes orders in nature of certiorari – Whether appellate court has power to make orders in place of orders quashed.

Words and phrases – “act or omission”, “certiorari”, “description of offence”, “error of law on the face of the record”, “jurisdictional error”, “privative provisions”, “reasonably practicable”, “superior court of record”, “Supreme Court of a State”, “the record”.
Evidence Act 1995 (NSW), ss 17(2), 190.

Heydon J (dissenting in part)

Defendant called as witness by the prosecution

114. The law required the hearing to be conducted in accordance with the rules of evidence. That follows from s 163(2) of the Industrial Relations Act 1996 (NSW) (“the IR Act”). It also follows from the Evidence Act 1995 (NSW) (“the Evidence Act”): see s 4(1) read with the definition in Pt 1 of the Dictionary of “NSW court”. In defiance of the prohibition in s 17(2) of the Evidence Act, the prosecution called Mr Kirk as its own witness in a criminal case. It was not open to the Industrial Court to dispense with s 17(2) pursuant to s 190, even with the consent of the parties. That error was not sinister in that it arose by reason of an oversight by the parties and the judge. But it was a jurisdictional error. The trial judge had jurisdiction to decide whether to fine the appellants after a trial conducted in accordance with the rules of evidence. He did not have jurisdiction to decide whether to fine the appellants after a trial which was not conducted in accordance with the rules of evidence. The jurisdictional error appeared on the face of the record, being mentioned at least twice in the trial judge’s reasons for judgment. Will every error in applying those of the numerous rules of evidence which cannot be dispensed with pursuant to the fairly strict requirements of s 190 or bypassed by agreeing facts pursuant to s 191 or outflanked by making admissions be a jurisdictional error? That question should be reserved for consideration from case to case. It is possible that there may be instances of failure to comply with the rules of evidence which are of insufficient significance to cause the court making them to move outside jurisdiction. It is also possible, as the majority suggest, that even insignificant failures would be jurisdictional errors, but not jurisdictional errors of a type justifying the exercise of an appellate court’s discretion in favour of granting relief[145].

115. But the error involved here in the prosecution calling a personal defendant as its witness to give a substantial quantity of testimony is within neither of these two categories. On any view it was a jurisdictional error, and there was no discretionary reason for refusing relief. For a long time it was controversial whether, and on what conditions, the accused should be made a competent witness[146]. The position adopted by the Imperial and Australian legislatures in the late 19th century was that the accused was not to be a competent or compellable prosecution witness, but was to be a competent witness for the defence. That position has been continued in s 17(2) of the Evidence Act. It is an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales. A sign, and a cause, of its fundamental character is the provision in s 190(1)(a) that the court cannot make an order dispensing with that rule, even with the consent of the parties.

116. I agree with the reasons of the majority for rejecting the proposition that even if Mr Kirk was not competent to give evidence in the case against him he was competent to give evidence as a witness against the Kirk company[147].

117. It would be wrong to do what the prosecution in this Court did not do – to treat the fact that Mr Kirk was called by the prosecution as a mere technicality of which the appellants have been able to take an adventitious and unmeritorious advantage at a late stage in these proceedings. The credibility of a witness in the position of Mr Kirk in relation to the defence under s 53 of the Occupational Health and Safety Act 1983 (NSW) (“the OH&S Act”) is capable of being affected by the manner in which the testimony is elicited. The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least[148], normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner’s ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner’s client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client’s advocate is severely restricted in the capacity to ask leading questions in chief. Judging the credibility of a witness in the box can depend on the trier of fact making an assessment of that witness’s whole character. It is a process assisted by knowing as much about the witness’s character as possible. The credibility of testimony is often enhanced, and the assessment of credibility is assisted, when the testimony is given in answer to non-leading questions. Testimony given in answer to non-leading questions is the witness’s own testimony, resting on the witness’s own perceptions, and moulded by the witness’s own values. It is not something created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness’s character as much as possible. On some issues in the trial in this case the prosecution bore the legal burden of proof, but on the vital s 53 issue Mr Kirk and the Kirk company bore the legal burden of proof. It would have been asking too much of human nature to have expected counsel for the prosecution to have elicited evidence from Mr Kirk on issues exclusive to the s 53 defence. That task thus lay with counsel for Mr Kirk and the Kirk company. It is a task one would expect to have been more satisfactorily accomplished from the defendants’ point of view if it were done by an advocate not able to make extensive use of leading questions. There are many reasons for the legislative choice made in s 17(2) and s 190, but this particular consideration alone indicates that there is nothing irrational about it, and nothing trivial about the failure to comply with s 17(2) in this case.

[2009] HCA 7

Practice and procedure – Appeals – Procedural fairness – Respondent issued a warrant under s 214 of Customs Act 1901 (Cth) authorising seizure of documents relating to single bottle of brandy – Officers of respondent seized documents relating to “other goods” imported within previous five years – District Court decided in In the matter of the appeal of Lawrence Charles O’Neill (unreported, District Court of New South Wales, 18 August 1988) that warrants issued under s 214 did not permit seizure of five year documents – Court of Appeal decided O’Neill “mistaken” without affording appellant opportunity to make submissions – Whether appellant denied procedural fairness in Court of Appeal – Scope of principles respecting procedural fairness in curial proceedings – Whether appellate court required to afford parties opportunity to be heard on non-binding decision.

Practice and procedure – Appeals – Procedural fairness – Court of Appeal went on to decide appeal on footing O’Neill correct – Whether lack of opportunity to make submissions with respect to O’Neill caused prejudice to appellant and affected outcome in Court of Appeal.

Evidence – Illegally or improperly obtained evidence – Evidence Act 1995 (NSW) (“Evidence Act”), s 138 – Respondent admitted condition precedent to execution of warrant not satisfied – Whether wilful disregard of Act in execution of warrant – Whether additional fact of seizure of five year documents relevant to exercise of discretion under s 138.

Practice and procedure – Appeals – Procedural fairness – Function of appellate court upon review of exercise by trial judge of discretion under s 138 of Evidence Act.

Words and phrases – “procedural fairness”, “relating to the goods”, “the goods”.

Customs Act 1901 (Cth), s 214, Sched V.
Evidence Act 1995 (NSW), s 138.

[2008] HCA 43

Criminal law – Evidence – Unlawfully obtained – Part IAB of Crimes Act 1914 (Cth) (“Crimes Act”) provided that person not liable for offences under Commonwealth, State or Territory law committed for purpose of controlled operation – Section 15M of Crimes Act provided for issue of certificate authorising controlled operation if authorising officer reasonably satisfied that, inter alia, unlawful activity in course of controlled operation would not seriously endanger health or safety of person – Section 16 of Law Enforcement (Controlled Operations) Act 1997  (NSW) (“LECO Act”) provided that activity for purpose of controlled operation not unlawful despite other Act or law – Section 3(1) of LECO Act defined “controlled activity” as activity that would be unlawful but for operation of s 16 – Section 7 of LECO Act provided that authority to conduct controlled operation must not be granted if, inter alia, participant in proposed operation would engage in conduct likely to seriously endanger health or safety of person – Section  138 of Evidence Act 1995  (NSW) conferred upon trial judges discretion to exclude evidence obtained illegally.

Criminal law – Evidence – Unlawfully obtained – Commissioner issued authorities (“Authorities”) under LECO Act authorising controlled operations – No authorities issued under Pt IAB of Crimes Act – Authorities authorised informer to sell cocaine to applicants – Cocaine not recovered by law enforcement officers – Applicants charged with taking part in supply of prohibited drug contrary to Drug Misuse and Trafficking Act 1985 (NSW).

Criminal law – Evidence – Unlawfully obtained – Whether Commissioner had power to issue Authorities where sale of cocaine without recovery strategy was decided at trial or upon judicial review to seriously endanger health or safety of person – Whether reference to “any other person” in s 7 of LECO Act confined to person in physical vicinity of authorised conduct or extended to person subject to foreseen and expected consequence of proposed controlled operation – Whether “controlled activity” within meaning of LECO Act extended to conduct unlawful by reason of contravention of Commonwealth law.

Judgments and orders – Judicial review – Declarations – Whether jurisdiction to entertain application to declare Authorities invalid – Whether discretion to do so should be exercised – Matters bearing on appropriateness of making declaration touching conduct of criminal proceedings.

Words and phrases – “controlled operation”, “declarations”, “seriously endanger health or safety”.

[2000] HCA 28

Criminal Law – Lies – Whether going to credibility or indicating guilt – Direction to jury – Proviso – Circumstances for application in strong Crown case.

Words and phrases – “consciousness of guilt”.

[2002] HCA 9

Negligence – Occupier’s liability – Duty of care – Eye injury suffered by player of indoor cricket – Failure to provide protective helmet – Failure to warn of specific risk of eye injury – Whether conduct of occupier reasonable in the circumstances – Relevance of industry practice and rules of game – Relevance of obviousness of risk – Voluntary assumption of risk – Causation of damage.

[1970] HCA 17

Criminal Law – Murder – Evidence – Admissibility – Statements made by deceased wife charging accused with desire to kill her – Possibility of prejudice – Judge’s discretion – Cross examination of accused about previous accidental death in family – Whether breach of ruling excluding evidence of death by shooting of accused’s first wife.

[1992] HCA 34

Criminal Law – Abuse of process – Stay of proceedings – Action for wrongful dismissal against university – Information for criminal defamation by plaintiff against officer of university – Predominant purpose of informant to secure reinstatement or favourable settlement of action – Whether abuse of process.

[1983] HCA 42

Criminal Law – Miscarriage of justice – Confession evidence – Indecent assault on young child – Victim not called as witness – Absence of satisfactory explanation of failure to call – Duty of prosecution concerning witnesses – Exceptions – Power of judge to direct prosecution to call witness – Power of judge to call witness – Whether conviction unsafe, unjust or dangerous – Whether denial of justice – Criminal Law Consolidation Act 1935 (S.A.), s. 353*.

[1993] HCA 65

Criminal Law – Evidence – Murder – Circumstantial case against accused – Evidence from which jury might have inferred that accused caused death – No evidence adduced by accused – Direction that inference of guilt more safely drawn from proved facts when accused chooses not to give evidence of facts within his knowledge.

[1994] HCA 30

Criminal Law – Jury – Impartiality – Murder trial – Juror giving flowers to victim’s mother – Whether juror or jury to be discharged Appropriate test – Reasonable apprehension of lack of impartiality or real danger of lack of impartiality.
Evidence – Criminal trial – Accomplice inculpating accused – Whether accomplice warning necessary – Nature of warning.

[1987] HCA 25

Constitutional Law – Freedom of information – Exempt documents – Legal professional privilege – Communications between government and salaried legal advisers – Freedom of Information Act 1982 (Cth), s.42(1).

Practice – Discovery – Legal professional privilege – Communications between government and salaried legal advisers.

[2007] HCA 48

Evidence – Admissibility – Relevance – Appellant convicted of conspiracy to possess a prohibited drug with intent to sell or supply it to another – Appellant had been previously acquitted of a conspiracy covering different times, parties and object, to possess a prohibited drug with intent to sell or supply it to another - Trial judge admitted evidence tending to show the appellant was a drug dealer (the “drug dealing evidence”) – The drug dealing evidence had been adduced in the earlier trial in which the appellant was acquitted – Trial judge directed the jury not to use the drug dealing evidence to infer that a person who dealt in drugs on one occasion was more likely to do so subsequently – Whether the drug dealing evidence was relevant to the offence of which the appellant was convicted – Whether evidence that the appellant had been acquitted of the previous charge was relevant and admissible.

Words and phrases – “the full effect of an acquittal”, “the full benefit of an acquittal”.

  [1979] HCA 9

Appeal – Findings of fact by judge sitting without jury – Function of appellate court – Inferences of fact – Finding on issue of negligence.

[1989] HCA 9

Evidence – Criminal – Hearsay – Murder – Witness deposing that deceased informed him of arrangement to meet accused on date of murder – Another witness deposing to conversation in which deceased identified caller as accused – Admissibility – Relevance to deceased’s state of mind.

[1992] HCA 12

[1937] HCA 44

[1990] HCA 23

20. The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’s assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness. Lord Hanworth M.R., in words which commanded the approval of the House of Lords in Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co. (1935) AC 346, at p 359, said:

“Cross-examination is a powerful and valuable weapon for
the purpose of testing the veracity of a witness and the
accuracy and completeness of his story. It is entrusted to
the hands of counsel in the confidence that it will be used
with discretion; and with due regard to the assistance to
be rendered by it to the Court, not forgetting at the same
time the burden that is imposed upon the witness.”

In Kalia (1974) 60 Cr App R 200 and in Maynard (1979) 69 Cr App R 309, while the Court of Criminal Appeal affirmed the duty of counsel not to extend cross-examination unduly nor to pursue irrelevant lines of inquiry, it emphasized that counsel must always be at liberty to do their duty in the proper interests of the client. It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.

[1974] HCA 14

Evidence – Prior inconsistent statement – Leave to party to cross-examine witness called by him – Meaning of “party” – Whether authorized insurer a “party” – Documentary evidence – Statements made in documents admissible under certain conditions – Whether statements of party admissible as well as statements of witness called by him – Statement made shortly after road accident – Res gestae – Evidence Ordinance 1971 (A.C.T.) ss. 28, 60 (2) (b).

[2002] HCA 4

Criminal law – Evidence – Expert evidence – Whether certain wounds to deceased were self-inflicted – Whether capable of being the subject of expert opinion – Evidence given by experts on matters of common knowledge of human behaviour – No objection by accused – Whether admissible – Whether conflicting opinion of experts incapable of resolution beyond reasonable doubt by jury because of difficulty and sophistication of purely scientific or medical evidence.

Criminal law – Practice and procedure – Duties of prosecution – Whether prosecution obliged to call other expert witnesses whose evidence might have been favourable to the accused.

Criminal law – Evidence – Confessions and admissions – Lie as evidence of consciousness of guilt – Whether jury could rely upon alleged lie only if satisfied of it beyond reasonable doubt.

Evidence Act 1995 (NSW), ss 79, 80.

[1910] HCA 11

[1988] HCA 56

[1960] HCA 2

Criminal Law – Wilful murder – Defences of insanity and intoxication negativing intent – Burden of proof – Misdirection – Miscarriage of justice – Criminal Code (W.A.), ss. 26, 27, 28, 278, 279, 280, 595, 689.

[1961] HCA 5

Negligence – Child injured by defendant’s car – Conversation with defendant prior to accident – Threat of retaliation by child’s father if child injured – Admissibility – Conversation with defendant subsequent to accident – Defendant accused of driving too fast – No reply – Admissibility – Whether wrongful admission of evidence justified new trial – Whether damages awarded excessive – Action for damages – General Rules of the Supreme Court (N.S.W.), O. XXII, r. 15.

[1996] HCA 34

Income tax – Tax benefit in connection with a Pt IVA scheme – Money on deposit in the Cook Islands – Identification of scheme – Whether taxpayers entered into the scheme for the dominant purpose of enabling the taxpayers to obtain a tax benefit – Identification of dominant purpose – Whether taxpayers obtained a tax benefit – Amount of tax benefit.