Category Archives: s. 008

TS v Constable Courtney James [2014] NSWSC 984 (17 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/984.html

APPEAL – whether magistrate erred in admitting evidence of intercepted telephone calls – whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply

EVIDENCE – Evidence Act 1995 (NSW) applies to applications for a forensic procedure – Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act – laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of – meaning of reasonable grounds for suspicion or belief

LK v Commissioner of Police& Anor [2011] NSWSC 458 (20 May 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/458.html

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

N O M v DPP & Ors [2012] VSCA 198 (24 August 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/198.html

Revocation of non-custodial supervision orders under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Quasi-inquisitorial nature of proceedings – Role of Attorney-General – Role of Secretary of the Department of Health – Appeal from a discretionary decision – Application of principles in House v The King [1936] HCA 40; (1939) 55 CLR 499.

Interaction between s 39 and s 40(1) – Weight to be given to factors in s 40(1)(c) and (d) – Meaning of ‘endanger’ – Assessment of probability of risk of harm to community or appellant – Evaluation of the likelihood of risk materialising rather than gravity of harm if risk eventuated – Degree of restrictions on appellant’s autonomy – Whether restrictions the minimum necessary for avoidance of risk – When liberty of individual to be optimised – Appellant at low risk of re-offending.

Burden of proof – Rules of evidence inapplicable – Section 38 – No legal or evidential onus on any party – Common sense approach to evidence – Standard of proof – Whether principle of Briginshaw (1938) CLR 336 applied to determination of future risk – Section 140 of the Evidence Act 2008 (Vic) – Whether applicable to such proceedings – Statutory standard of proof – Actual persuasion on the part of fact-finder – Section 140(2) Evidence Act and principle in Briginshaw.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 33, 35, 38, 39, 40 – Uniform Evidence Act ss 8, 140 – RDM v DPP & Ors [1999] VSCA 86; [1999] 2 VR 270; Dr Butler v Fourth Medical Services Review Tribunal (1997) 47 ALD 647; McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 applied. In Re SKD [2009] VSC 363 discussed.

In the matter of LN [1999] VSC 144, In the matter of TDD [2001] VSC 389 overruled in part.

DPP v Gibson [2012] VSC 297 (9 July 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/297.html

ADMINISTRATIVE LAW – Appeal from a decision in the Magistrates’ Court – Respondent acquitted of charge under s 49(1)(f) of the Road Safety Act 1986 (Vic) – Magistrate accepted the respondent’s uncorroborated evidence about the timing of her drinking – Whether the requirement in s 48(1A) of the Road Safety Act 1986 (Vic) that evidence be corroborated by the material evidence of another person has been displaced by s 164(1) of the Evidence Act 2008 (Vic) – Whether s 164(1) of the Evidence Act 2008 (Vic) impliedly repeals part of s 48(1A) of the Road Safety Act 1986 (Vic) – Whether s 8 of the Evidence Act 2008 (Vic) preserves the operation of corroboration requirements in the Road Safety Act 1986 (Vic) – Application of the maxim generalia specialibus non derogant – Road Safety Act 1986 (Vic), ss 48(1A), 49(1)(f) – Evidence Act 2008 (Vic), ss 8, 164(1) – Appeal allowed.

LK v Commissioner of Police& Anor [2011] NSWSC 458 (20 May 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/458.html

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“Drugs Act”) – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) provided “[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights” – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.

Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.

Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined “traffick” to include “have in possession for sale” – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking

by that person – Whether s 5 applicable to offence under s 71AC on basis of “possession for sale” – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs.

Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.

Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.

Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order.

Words and phrases – “declaration”, “diversity jurisdiction”, “evidential onus”, “incompatibility”, “institutional integrity”, “interpret”, “legal onus”, “legislative intention”, “matter”, “possession”, “possession for sale”, “resident of a State”, “right to be presumed innocent”.

Constitution, Ch III, ss 73, 75(iv), 77(iii), 109.
Commonwealth of Australia Constitution Act 1900 (Imp), s 5.
Crimes Act 1914 (Cth), s 4C(2).
Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5.
Judiciary Act 1903 (Cth), ss 39(2), 79.
Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37.
Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2).
Interpretation of Legislation Act 1984 (Vic), s 6(1).

per CRENNAN AND KIEFEL JJ.
511. Section 5 of the Drugs Act denies the operation of the common law rule that the prosecution prove the guilt of an accused person by proof, beyond reasonable doubt, of both negative and positive elements of an offence[721]. The rule reflects the common law concept of the presumption of a person’s innocence[722].
512. The principle of legality at common law would require that a statutory provision affecting the presumption of innocence be construed, so far as the language of the provision allows, to minimise or avoid the displacement of the presumption. But, for the reasons which follow, its application to s 5 cannot yield a construction other than that required by the clear language of that section, which places the legal burden of proof on the accused.

FN
[721] Referred to as the “golden thread”: see Woolmington v The Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 at 481 per Viscount Sankey LC; and see Phipson on Evidence, 17th ed (2010) at 154 [6-09]. The rule is now embodied in s 141 of the Evidence Act 2008 (Vic) albeit, by s 8 of that Act, it does not affect the operation of any other Act.

Re an application for bail by Merritt (No.2) [2010] ACTSC 7 (8 January 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/7.html

CRIMINAL LAW – Bail – jurisdiction to hear application for bail – new information and change in circumstances relevant to grant bail – s 43 Bail Act 1992 (ACT)
CRIMINAL LAW – Bail – criteria for grant bail – cash surety – applicant desire to undertake drug rehabilitation – no offences of a serious nature – no indication of an increasing seriousness of offences – no indication that applicant is unlikely to be able to resolve criminal habits with appropriate support.
CRIMINAL LAW – Bail – surety – cash provided by surety from own resources.
PRACTICE AND PROCEDURE – Bail – Evidence and information – facts asserted from counsel – ss 4.8 Evidence Act 1995 (Cth), s 19(6) Bail Act 1992 (ACT).
PRACTICE AND PROCEDURE – completion of bail form – need for reform of application form – need for applicants to complete form with information required.
PRACTICE AND PROCEDURE – adjournment of bail applications – need to adjourn if insufficient notice given of grounds of application.

Evidence Act 1995 (Cth) ss 4, 8

In the matter of an application for Bail by Breen [2009] ACTSC 172 (31 December 2009)

http://www.austlii.edu.au/au/cases/act/ACTSC/2009/172.html
BAIL – review of refusal of bail in Magistrates Court – applicant charged with threat to kill – applicant convicted of offence of violence in previous 10 years – presumption in favour of bail “does not apply” – Bail Act 1992 (ACT), s 9B – unique provision – onus lies with applicant, though prosecution must be heard.
HUMAN RIGHTS – factors relevant to grant of bail – Bail Act 1992 (ACT), s 22 – relevance of right to liberty – Human Rights Act 2004, s 18 (ACT) – presumption of innocence and interests of the accused – balanced against attendance at trial and “future risk” to the community – refusal of bail for “future risk” tantamount to “preventative detention” – policy of mandatory arrest in family violence matters – management of mental health and strict bail conditions held to mitigate risk.
EVIDENCE – assessment as to risk must be based on more than mere suspicion – court may consider any “information” it considers “relevant and reliable” – Bail Act 1992 (ACT), s 19(6).

Sherman v Commissioner of Patents [2008] FCA 1026 (9 July 2008)

[2008] FCA 1026

5 Counsel for the applicant objected to the reading of paragraphs 6, 7 and 8 of the affidavit, and to the reception into evidence of the exhibits referred to therein. Although those objections were based upon several grounds arising under the Evidence Act 1995 (Cth) (“the Evidence Act”), most of them involved the proposition that the Commissioner should not be permitted to prove the contents of the Rork citation referred to in the delegate’s affidavit, and of the statutory declarations exhibited to the affidavit, without calling direct evidence of the substantive facts which the Commissioner seeks to establish by the tender of those documents. Counsel for the applicant relied in this respect upon ss 59(1), 135, 56(2) and 48(1) of the Evidence Act, and upon O 14 r 9 of the Federal Court Rules.

6 Counsel for the Commissioner pressed for the reception into evidence of the contents of the delegate’s affidavit, and of the exhibits thereto. They submitted that, in an appeal to the Federal Court under s 60(4) of the Patents Act, that Act permitted all of the material which had been before the delegate in the opposition hearing to be tendered as evidence without reference to restrictions that might otherwise have been imposed by the Evidence Act. Alternatively, they sought a direction pursuant to s 190(3) of the Evidence Act that the provisions of that Act relied upon by the applicant not apply, on the ground that the application of those provisions would cause or involve unnecessary expense or delay. They relied also upon ss 60 and 75 of the Evidence Act in response to the applicant’s reliance upon s 59.

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66 (29 April 2005)

[2005] FCAFC 66

INDUSTRIAL LAW – industrial dispute – finding by Australian Industrial Relations Commission that industrial disputes existed between union and two employers – whether jurisdictional error – whether employees in respect of whom demands made eligible to join union – construction of rules of union relating to eligibility for membership – whether information technology incidental, ancillary or complementary to supply, installation or maintenance of telecommunications services – identification of part of business of employer – identification of principal function of part of business

WORDS AND PHRASES – ‘industrial dispute’, ‘incidental, ancillary or complementary’, ‘part of a business’, ‘principal function’

Evidence Act 1995 (Cth) ss 8, 48(1)(f), 52, 157, 190

Azzi and Ors v Volvo Car Australia Pty Ltd (Costs) [2007] NSWSC 375 (20 April 2007)

[2007] NSWSC 375

COSTS – Offers of settlement – where offer made by defendant in course of court-referred mediation substantially more favourable to plaintiff than judgment – whether evidence of offer admissible – where offer open only for short time – where offer not stated to be Calderbank offer nor obviously so – whether defendant’s costs should be payable on indemnity basis.
ALTERNATIVE DISPUTE RESOLUTION – Mediation – admissibility of evidence of statements made during mediation.

(NSW) Evidence Act 1995, s 131(1), 131(2), 135

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]

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]

Williams v The Queen [2000] FCA 1868 (20 December 2000)

 [2000] FCA 1868

PRACTICE & PROCEDURE – application to file and serve notice of appeal out of time – need for “special reasons” pursuant to O 52 r 15 of the Federal Court Rules – appellant not granted legal aid funding – delay not caused by mere inadvertence or procrastination -appellant always wished to appeal – good prospects of success – prejudice to the Crown less than in other cases.

CRIMINAL LAW – application at trial to discharge jury – application refused on basis that a direction to the jury would be sufficient – individual juror dismissed because he overheard a court officer discuss the appellant’s prior criminal record – no evidence that other jurors did not also overhear comments about the appellant’s prior criminal record – serious risk of prejudice to the appellant which a direction may not overcome – failure to discharge a miscarriage of justice.

EVIDENCE – application at trial by appellant for access to privileged documents under s 123 of the  Evidence Act 1995  (Cth) (“the Evidence Act”) – application refused – interrelation between the provisions of that Act and Legal Aid Act 1977 (ACT) – privileged documents were forensically relevant and interests of justice would generally require such documents to be produced to defence counsel – application at trial for adjournment to recall Crown witness after Crown case closed to prove the documents – application refused – appellant had every reasonable opportunity to defend himself – refusal of adjournment did not alter this – as Crown witness could not be recalled there was no use that appellant’s counsel would have made of the privileged documents – refusal to grant access to privileged documents not the crucial decision – no appellable error.

EVIDENCE – statement of a deceased Crown witness admitted at trial as exception to hearsay rule under s 65 of the Evidence Act – meaning of “shortly after” in s 65(2)(b) – s 65(2)(b) principally concerned with excluding concocted evidence – memory of the person making the statement not the key concern -meaning of “in circumstances that make it unlikely that it is a fabrication” in s 65(2)(c) – onerous requirements – need to consider not only whether the evidence appears to the judge to be reliable but all the circumstances as to the making of the statement – admission of such evidence was unfairly prejudicial under s 137 of the Evidence Act.

EVIDENCE – failure to give “accomplice” direction under s 165 of the Evidence Act – admission of evidence accompanied by failure to give such a direction amounts to a miscarriage of justice.

Evidence Act 1995  (Cth), ss 8(1), 65(2)(b), 65(2)(c), 123, 137, 164(3), 165

Chapman v Luminis Pty Ltd [No 2] [2000] FCA 1010 (28 July 2000)

[2000] FCA 1010

Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice -  Evidence Act 1995  (Cth), s 130

Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109

Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79

Evidence Act 1995  (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142

R v Yl [2004] ACTSC 115 (27 October 2004)

[2004] ACTSC 115

COURTS AND THE JUDICIAL SYSTEM – whether discretion to refuse to exercise coercive powers to compel 7 year old child to enter court and give evidence against his will – evidence by psychiatrist that forcing the child to do so could cause significant harm – application by Crown to discharge jury in order to test rulings of trial judge – attempt to enter nolle prosequi in order to test rulings – general principles – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – objection under s 18 of the  Evidence Act 1995  (Cth) to giving evidence – whether s 19 precludes the application of s 18 to “domestic violence offences” mentioned in s 9 of the Protection Orders Act 2001 (ACT) – application of s 10A of the Acts Interpretation Act 1901 (Cth) – whether 7 year old child compellable – whether discretion to refuse to exercise coercive powers to force child to enter court and give evidence against his will – relevance of rights guaranteed by Human Rights Act 2004 (ACT).

EVIDENCE – whether child an “unavailable” witness when court refuses to compel him to enter court and give evidence – whether evidence of prior representations by the child admissible under s 65 of the Evidence Act 1995 (Cth)- whether rejection of such evidence required by s 137 of the  Evidence Act 1995  (Cth).

Evidence Act 1995  (Cth), ss 18, 137, 19, 8, 65, 67, 63(2), 64(2), 65(2,3,8)

R v Gover [2000] NSWCCA 303 (17 August 2000)

[2000] NSWCCA 303

CRIMINAL LAW

dishonesty offences

appeal against conviction

CRIMINAL LAW & PROCEDURE

inadvertent and potentially prejudicial event

no application for discharge of jury

whether direction overcame prejudice

EVIDENCE

statements of deceased witness

paper committal

notice for attendance of witnesses

non appearance by accused at committal

whether statements admissible at trial

Evidence Act 1995 , ss 8, 65, 67,137

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161; 201 ALR 1; 77 ALJR 1629 (5 September 2003)

 [2003] HCA 49

Customs and excise – Prosecutions under Customs Act 1901  (Cth) and Excise Act 1901  (Cth) – Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901  (Cth) and Excise Act 1901  (Cth).

Practice and procedure – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether standard of proof a matter of “practice and procedure” in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) – Whether standard of proof within contemplation of rules governing “commencing, prosecuting or proceeding with” a prosecution – Whether statutory averment provisions affect question of standard of proof.

Federal jurisdiction – Supreme Court exercising federal jurisdiction in respect of “Customs prosecutions” and “Excise prosecutions” under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether s 79 Judiciary Act 1903 (Cth) “picks up” any State law prescribing standard of proof to be applied – Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles.

Criminal law – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Standard of proof – Common law requirements where conviction sought for offence against a law of the Commonwealth – Significance of orders sought in prosecution proceedings – Meaning of “conviction” – Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary.

Words and phrases – “Customs prosecution”, “Excise prosecution”, “recovery of penalties”, “usual practice and procedure”, “commenced prosecuted and proceeded with”, “conviction”.

Faustin Epeabaka v Minister for Immigration & Multicultural Affairs [1997] FCA 1413 (10 December 1997)

http://www.austlii.edu.au/au/cases/cth/FCA/1997/1413.html

MIGRATION – judicial review – Refugee Review Tribunal – nature of proceedings before Tribunal – burden of proof – obligation to rationally consider probative evidence

EVIDENCE – whether Refugee Review Tribunal is a court for purposes of the  Evidence Act 1995  (Cth) – effect of ss 8 and 9

Evidence Act 1995  (Cth) ss 8(1), 9(1), 150

Finkelstein J
In clauses 9(1) and (2) of Pt 2 of the Dictionary “a law of the Commonwealth” is defined to be a written or unwritten law of the Commonwealth and an “Australian law” (which according to the definition in Pt 1 includes the law of the Commonwealth) is also defined to be a written or unwritten law.

Most of the limbs of each definition of federal court and Australian court refer to an actual court. They can have no application to the Tribunal for in no sense is it a court. But each definition includes as a court a body that is not in fact a court. It is to these parts of the definitions to which I must now refer.

The Tribunal will be an Australian court if it is “a body that, in exercising a function under an Australian law, is required to apply the laws of evidence “and it will be a federal court if it is a body that “in performing a function or exercising a power under a law of the Commonwealth, is required to apply the laws of evidence.” However, the Tribunal is not such a body because s 420(1) of the Migration Act provides that the Tribunal is “not bound by … rules of evidence”. This is sufficient to take the Tribunal outside those limbs of the definition of Australian court and federal court just mentioned.

In arriving at this conclusion I have ignored the difference in language between s 420(1) which provides that the Tribunal is not bound by the rules of evidence and the definitions which refer to a body that is required to apply the laws of evidence. I do not regard this difference in expression as material. Each expression is apt to refer to the same subject namely matters that are or are not admissible in a proceeding and the method by which those matters are placed before a decision-maker: see Sopinka Lederman & Bryant, “Laws of Evidence in Canada” (1992 Butterworths) at p 1, and Halsbury’s Laws of England (4th ed) vol 4 para 1.

Further, I do not regard the fact that the Tribunal is obliged to observe certain rules that are sometimes called rules of evidence as affecting my conclusion. The rules that I have in mind are the various privileges that may be relied upon to exclude evidence being led before the Tribunal. The privileges are legal professional privilege, the privilege against self incrimination and what was once referred to as Crown privilege but is now known as public interest immunity. While each of these privileges is commonly regarded as part of the rules of evidence, they have application to a proceeding before the Tribunal not because they are rules of evidence but because they are fundamental principles of the common law that are capable of being exercised not only in curial proceedings but in administrative and investigative proceedings as well: see Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 with regard to legal professional privilege, Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328 and Controlled Consultants v Commissioner for Corporate Affairs [1985] HCA 6; (1985) 156 CLR 385 with regard to the privilege against self incrimination and Science Research Council v Nasse [1980] AC 1028 and Middendorp Electric Co Pty Ltd v Law Institute of Victoria [1994] 2 VR 313 with regard to public interest immunity.

The result is that the Tribunal does not fit within any limb of the definition of federal court. However, the Tribunal is a body that is authorised by an Australian law, the Migration Act, to hear, receive and examine evidence: see the discussion of the powers and functions of the Tribunal earlier in these reasons. It follows that the Tribunal is an Australian court in accordance with para (e) of the definition of that court.

But it does not follow from the fact that the Tribunal is an Australian court that proceedings before it are governed by the tabled provisions in s 5(1). The effect of s 8(1) of the Evidence Act must be considered. Section 8(1) is one of a number of provisions in Pt 1.2 which are concerned with the application of the Evidence Act. The subsection provides that the Evidence Act does not affect the operation of the provisions of any other Act. The question thus raised is whether s 8(1) prevents the tabled provisions in s 5(1) having application to proceedings before the Tribunal.

The scope of operation of s 8(1) is not clear. There will be no difficulty in applying the sub-section in the case where a provision of the Evidence Act is directly inconsistent with the provision of some other enactment. In that event the provision of that other enactment will prevail. But what if there is no direct inconsistency. Some indication of how s 8(1) is to operate in that circumstance may be gathered from s 9(1) which provides that:

“For the avoidance of doubt, this Act does not affect an Australian law so far as the law relates to a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.”

When s 8(1) and s 9(1) are considered together the legislative intention that is disclosed is that where a court, whether it is an Australian court or a federal court, is not required to observe the rules of evidence the Evidence Act will not operate so as to impose that obligation. Here again reference should be made to s 420(1) of the Migration Act which provides that the Tribunal is not bound by the rules of evidence. If a proceeding before the Tribunal was governed by ss 150 the Tribunal would be required to receive a particular document as part of the evidence in a proceeding before it when it would not be required to do so if s 420(1) was the sole provision that applied. Thus there is, in a general sense, an inconsistency between the two provisions. It follows, in my opinion, that s 8(1) renders s 5(1) inapplicable to proceedings before the Tribunal.

Commissioner of Patents v Sherman [2008] FCAFC 182 (20 November 2008)

[2008] FCAFC 182

PATENTS – appeal under s 60(4) of the Patents Act 1990 (Cth) against the Commissioner’s decision on an opposition to a grant of patent – whether tender of evidence as to the Commissioner’s decision, including the material on which it was based, inadmissible in the trial in this Court – whether  Evidence Act 1995  (Cth) applies to such evidence – nature of opposition proceeding before the Commissioner – nature of appeal under s 60(4) of the Patents Act – effect of s 160(a) of the Patents Act – effect of O 58 r 8 of the Federal Court Rules – admissibility of evidence at the trial governed by  Evidence Act 1995  (Cth)

EVIDENCE – admissibility of evidence as to the Commissioner’s decision and the material on which it was based – whether evidence as to the Commissioner’s decision irrelevant – whether evidence as to the material on which the Commissioner’s decision was based inadmissible as hearsay – evidence about the Commissioner’s decision relevant as jurisdictional fact and as the opinion of a person with technical expertise – this evidence and material on which the Commissioner’s decision was based is admissible under the Evidence Act 1995 (Cth)

PRACTICE AND PROCEDURE – whether leave to appeal against evidentiary ruling ought to be granted – case raises a matter of public importance – leave granted

Evidence Act 1995  (Cth) ss 4(1), 8(1), 9(1), 48(1)(b), 56(2), 59, 60, 76, 77, 79, 140, 190(3)(b)

McNeill v The Queen [2008] FCAFC 80 (23 May 2008)

[2008] FCAFC 80

EVIDENCE – whether record of interview and handwritten statement induced by untrue representation and thus inadmissible pursuant to s 410 Criminal Law Act 1960 (NI) – whether trial judge erred in finding this evidence to be admissible – whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) – consideration of construction of s 410 and meaning of “untrue representation” – whether any untrue representations made and whether confession induced – no error in trial judge’s decision to admit record of interview and handwritten statement.

EVIDENCE – whether trial judge erred in failing to exclude record of interview and handwritten statement pursuant to ss 85, 90 or 138 Evidence Act 2004 (NI) – consideration of relevance and application of s 23 New Zealand Bill of Rights Act 1990 (NZ) – whether evidence obtained improperly – whether unfair to admit evidence – trial judge correctly found these sections not to be enlivened.

JURY – discharge of juror by reason of illness – order by trial judge to continue with a jury of less than 12 jurors – whether trial judge erred in application of s 5D Juries Act 1960 (NI) – s 5E Juries Act 1960 (NI) provided that s 5D applied – trial judge entitled to continue with 11 jurors.

EVIDENCE – exclusion of certain expert evidence by trial judge in exercise of discretion – interviewing officer had put parts of expert evidence to appellant – whether subsequent exclusion affected admissibility of confession – whether trial judge erred in failing to revisit earlier ruling regarding admissibility of confession – no error in trial judge’s refusal to revisit ruling.

CRIMINAL LAW – summing up by trial judge – whether trial judge failed to direct jury appropriately on certain forensic evidence by failing specifically to direct that the forensic evidence could have come from a source other than that put in Crown case – no obligation upon trial judge to put to jury every piece of evidence which might have undermined Crown case – whether trial judge erred in failing to direct jury in relation to the positioning of the deceased’s clothing at autopsy – positioning of clothing at autopsy not relevant – whether trial judge erred in failing to direct jury that witnesses unable to identify precise source of certain evidence – fact of source of evidence sought be to proved inferentially – no obligation upon trial judge to direct jury that witnesses unable to identify precise source – whether trial judge failed to direct jury about certain intermediate facts which needed to be proved beyond reasonable doubt – whether trial judge directed jury incorrectly about lies – whether trial judge failed to direct jury that DNA evidence could have originated from unidentified person – trial judge did not fail so to direct – no error in trial judge’s directions.

CRIMINAL LAW – unsworn statement given by appellant pursuant to s 405 Criminal Law Act 1960 (NI) – explanation by trial judge to jury of unsworn statement and how it may be used – whether trial judge commented impermissibly on appellant’s unsworn statement and infringed s 407 Criminal Law Act 1960 (NI) – no infringement as trial judge did not compare unsworn statement with right to give evidence.

PRACTICE AND PROCEDURE – application pursuant to s 27 Federal Court of Australia Act 1976 (Cth) for Court to receive further evidence on appeal – evidence that fact known to appellant in public domain at time of trial – Crown case that fact not in public domain – discussion of powers of Federal Court when hearing criminal appeals – discussion of principles governing application to admit further evidence in context of criminal appeals – whether miscarriage of justice by reason of evidence not being adduced to contradict Crown case or by reason of evidence not being put before Crown to prevent adduction of evidence by Crown that fact not in public domain – whether significant possibility that evidence would reasonably have led jury to return different verdict – very strong Crown case – no possibility that jury, acting reasonably, would have acquitted appellant – application refused as no miscarriage of justice demonstrated.

CRIMINAL LAW – whether conviction should be set aside on ground that verdict unsafe and unsatisfactory – discussion of role of appellate court – consideration of evidence to support Crown case – jury verdict not unsafe and unsatisfactory.

Evidence Act 1995  (Cth) s 8
Evidence Act 2004 (NI) ss 8, 20, 55, 56, 85, 90, 135, 137, 138, 139
Evidence Act 1995  (NSW) s 8

R v McNeill (Ruling No 1) [2007] NFSC 2 (7 February 2007)

[2007] NFSC 2

CRIMINAL LAW — voir dire held regarding admissibility of confessional evidence — accused arrested in New Zealand for purpose of extradition to Norfolk Island on charge of murder — record of interview conducted following arrest

EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Criminal Law Act 1960 (NI) s 410 — whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) — meaning of “untrue representation”

EVIDENCE — whether record of interview and handwritten statement inadmissible pursuant to Evidence Act 2004 (NI) s 85(2) — whether circumstances in which record of interview given rendered admissions “unreliable” — whether any police impropriety — compliance with New Zealand Bill of Rights Act (NZ) s 23(1)

EVIDENCE — whether record of interview and handwritten statement should be excluded pursuant to Evidence Act 2004 (NI) ss 90, 135, 137 or 138(2)(b) — unfairness discretion — probative value of evidence — risk of unfair prejudice to accused — whether any “false statement” made in course of questioning — whether any police impropriety

Evidence Act 1995  (Cth) s 8
Evidence Act 1995  (NSW) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)
Evidence Act 2004 (NI) ss 8, 85, 85(2), 90, 135, 137, 138, 138(2)(b)

Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373 (24 November 2006)

[2006] NSWCCA 373

CONSTITUTION – s 109 inconsistency – State and federal law – Financial Transaction Reports Act 1998 (Cth) and  Evidence Act 1995  (NSW) – standard of proof

CRIMINAL PLEADINGS – duplicity – uncertainty – whether prosecution case involved ambiguity or uncertainty

EVIDENCE – admissibility – identification evidence – photoboard selection – whether probative value outweighed by danger of unfair prejudice

EVIDENCE – admissibility – character evidence – adverse character evidence from re-examination of witness inadmissible – whether inappropriate for prosecution to comment on failure by defence to call character evidence

EVIDENCE – admissibility – handwriting evidence – whether change in expert evidence rendered it inadmissible – whether each reason for reaching the expert conclusion must be referrable to specialised knowledge – whether evidence inadmissible because sample for handwriting analysis was obtained in manner prejudicial to defendant

EVIDENCE – unfair prejudice –  Evidence Act 1995  (NSW) – ss 135, 136, 137

EVIDENCE – opinion – inference derived from primary facts – Evidence Act 1995 (NSW) – ss 76, 79

INSIDER TRADING – pleadings – uncertainty and duplicity – whether evidence conformed to pleadings – meaning of “likely”

INSIDER TRADING –– elements of offence – definition of information – whether inference can be drawn from conduct – whether inference need to be the only reasonable inference available

INSIDER TRADING – elements of offence – requirements for general availability –whether information as a whole was generally available if particular aspects of it was generally available

INSIDER TRADING – elements of offence – definition of “purchase” and “securities” – whether purchase of option contracts within definition

JURY DIRECTIONS – whether Shepherd direction required – whether any information, apart from the particularised elements in indictment, was indispensable – meaning of “likely” in indictment

STRUCTURING TRANSACTIONS – Financial Transactions Reports Act 1998 (Cth) – standard of proof in s 31(1)(b)

Evidence Act 1995  (NSW), ss 4, 8, 18, 20, 37, 38, 76, 79, 135, 136, 137, 141

Director-General Dept of Community Services (Central Authority) & S.H.R [2001] FamCA 926 (6 July 2001)

[2001] FamCA 926

CHILD ABDUCTION – Evidence – whether document admissible under Family Law (Child Abduction Convention) Regulations 1986 reg 29(1)(a) – whether reg 29(1)(a) invalid because inconsistent with provisions of  Evidence Act 1995  (Cth) – effect of  Evidence Act 1995  s 8(2); Acts Interpretation Act 1901 (Cth), ss 15A, 15AC.

CHILD ABDUCTION – interpretation of Family Law (Child Abduction Convention) Regulations 1986 – onus of proof – application of reg 16 where court not satisfied as to habitual residence or as to whether a removal was in breach of a person’s custody rights.

CHILD ABDUCTION – child removed from Italy to Australia – whether wrongful removal – whether father consented – Family Law (Child Abduction Convention) Regulations 1986

Denis George Simonfi v Janette Mclaren Fimmel; Denis George Simonfi v Nicola Dowden and Suncorp Insurance & Finance [1999] ACTSC 131 (10 December 1999)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/act/ACTSC/1999/131.html

Practice and Procedure – Application for orders that the evidence of doctors in Brisbane and Sydney be taken by audio link – Part 12AA, section 85AE of the Evidence Act 1971 – Actions for damages for personal injuries arising out of motor vehicle accidents – Queensland not a participating state – Whether Part 12AA of the Evidence Act 1971 is inoperative as being repugnant to the Commonwealth Evidence Act 1995 – Section 8(4) Evidence Act 1995 (Cth) – Absence of regulations made under the Commonwealth Evidence Act.