PROCEDURE – notice of motion – order seeking concurrent hearing refused – order seeking discovery refused – leave sought to issue subpoenas at present refused – order seeking transfer of files from Land and Environment Court to Supreme Court refused – orders made
CRIMINAL LAW – application for extension of time to give notice of appeal against conviction and application for leave against sentence – where application for extension of time not opposed – where affidavit supporting extension of time unsatisfactory – discretionary power to extend time limit to be exercised having regard to the interests of justice in the case
CRIMINAL LAW – appeal against conviction – “context” evidence – where evidence admitted of poor relationship between applicant and complainant – where evidence not of prior sexual or other assaults against the complainant – whether trial judge erred in failing to give specific direction as to limited use to which evidence could be put – Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137
CRIMINAL LAW – appeal against conviction – where jury failed to reach unanimous decision on some charges – where trial judge gave majority verdict direction – where failure to examine juror on oath before giving direction – Jury Act 1977 (NSW), s 55F(2)(b)
CRIMINAL LAW – application for leave to appeal against sentence – whether fact that sexual assault occurred in home aggravating factor when applicant and complainant resided together at the relevant time – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
CRIMINAL LAW – where aggregate sentence to be reassessed – Court to re-exercise discretion to form its own judgment as to appropriate aggregate sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
ADMINISTRATIVE LAW – judicial review – summons to produce documents issued by ICAC – ICAC Act s 35(1) – whether primary judge erred in finding summons authorised by s 35 – whether decision to issue summons was for a purpose other than an investigation – whether decision to issue summons illogical, irrational or unreasonable – whether ICAC failed to accord procedural fairness to appellant
ADMINISTRATIVE LAW – judicial review – notice to produce served on ICAC by appellant – whether primary judge erred in setting aside notice to produce – whether primary judge erred in finding ICAC Act, s 111(3) applies to ICAC as a separate legal personality – whether primary judge erred in concluding s 111(3) applies to documents created internally by ICAC
CONSTITUTIONAL LAW – implied freedom of communication on governmental and political matters – whether primary judge erred in finding s 35 reasonably appropriate and adapted or proportionate to an identified legitimate statutory purpose and therefore consistent with the implied freedom
CONSTITUTIONAL LAW – judicial review – whether primary judge erred in finding s 111(3) consistent with power of Supreme Court to grant relief in relation to jurisdictional error
CRIMINAL LAW – Two counts of conspiracy to contravene s 1041A of Corporations Act 2001 (Cth) – 33 counts of contravening s 1041A of Corporations Act – Joinder of counts in one indictment – Severance – Admissibility of previous dealings as context evidence – Whether previous dealings admissible as tendency evidence – Cross-admissibility of evidence as context or tendency evidence – Elements of offences.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against Magistrate’s refusal to make a non-conviction order for offence of supplying declared substance without authorisation – whether Magistrate misjudged seriousness of offence – whether Magistrate denied unrepresented defendant natural justice in not inviting him to seek an adjournment to obtain more evidence – whether Magistrate’s reasons suggested erroneous views about need for custodial sentences, or availability of non-conviction orders, for drug-related offences – no error by Magistrate found – appeal dismissed.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Admission of Fresh Evidence – application to adduce expert evidence about likely effect on recipients of drug supplied by appellant and about appellant’s mental health – evidence supported, but did not go beyond, submissions made by appellant in Magistrates Court and apparently accepted by Magistrate – admission of evidence tendered on appeal was not required by interests of justice and would not have provided any grounds for upholding the appeal – leave to adduce fresh evidence refused – appeal dismissed.
ACCIDENT COMPENSATION – Occupiers’ liability – Jury trial – Application to discharge jury – Evidence – Cross-examination – Re-examination – Whether cross-examination impermissible – Whether re-examination arose out of cross-examination – DVD purporting to be a re-enactment of the accident – Whether DVD admissible- Whether DVD admissible in re-examination – Whether probative value of evidence substantially outweighed by the danger that the evidence might be confusing – No substantial wrong or miscarriage occasioned in the trial by the rejection of the tender – Evidence Act 2008 , ss 55, 78 and 135(b) – Supreme Court (General Civil Procedure) Rules 2005, r 64.23(2) – Appeal dismissed.
PRACTICE AND PROCEDURE – application to set aside notice to produce unredacted versions of documents to be tendered at trial – whether redacted documents relevant to issues in the proceeding – implied undertaking to use documents only for present proceeding – where applicant company intended to provide unredacted documents to fiduciaries of company – whether fiduciaries would have conflict of interest
EVIDENCE – relevance – probative value – danger of unfair prejudice
CRIMINAL LAW – evidence – sexually motivated murder of Asian woman -tendency evidence – evidence of sexual interest in Asian women – accused asserts that he has no interest in sex – accused asserts sexual dysfunction – evidence that accused watched “Asian pornography” – evidence that accused visited Asian prostitutes – evidence that accused “liked it rough” – evidence of the accused using “speed” during sexual activity – evidence of the accused’s Facebook “friends” – 90% of accused’s 110 friends “young teenage Asian females” – assessment of probative value – assessment of prejudicial effect
EVIDENCE – expert reports tendered by applicant as evidence in reply – whether expert reports relevant – whether expert reports properly evidence in reply – whether evidence usurps the function of the judge in determining the issues in dispute – whether it would be unfairly prejudicial to the respondent to use the evidence
WORDS AND PHRASES – “unfairly prejudicial”
LIQUOR LAW – lease of licensed premises of a registered club – whether lease granted in breach of Liquor Act 2007 s 92 – effect of breach of s 92(1)(d) – whether the statutory purpose of the Liquor Act can be fulfilled without rendering the lease void and unenforceable
REAL PROPERTY – lease of the core property of a registered club – whether a lease granted in breach of s 41J of the Registered Clubs Act 1976 rendered the lease void and unenforceable
REAL PROPERTY – non-exclusive licence – whether licence granted a right of occupation within Retail Leases Act 1994
CRIMINAL LAW – EVIDENCE – witness – examination in chief – whether leave should be granted for a witness to revive his memory by reference to a document – evidence highly probative
CRIMINAL LAW – EVIDENCE – witness – examination in chief – witness granted certificate pursuant to Evidence Act s 128 – whether the jury should be informed of the grant and its effect
CRIMINAL LAW – evidence – severance of counts – assault occasioning actual bodily harm – separate trial – murder – accused state of mind – transactional evidence
CRIMINAL LAW – Sexual offences – Sexual penetration of child ‘under his care, supervision or authority’ – Accused was previously Principal of victim’s school – Sexual acts occurred after accused had resigned as Principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Whether evidence of former Principal–pupil relationship admissible – Whether temporal proximity relevant – Crimes Act 1958 (Vic) ss 48, 49.
CRIMINAL LAW – EVIDENCE – voice identification evidence – admissibility – proposed evidence received on voir dire by way of statement – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – how trial judge should properly approach this balancing exercise
EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible
CRIMINAL LAW – EVIDENCE – admissibility – proposed evidence received on voir dire by way of statement – whether evidence relevant – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused
Criminal law – Application to exclude evidence – Substantial impairment – Undiagnosed mental illness – Research
EVIDENCE – application to exclude DNA evidence – judge alone trial – drug trafficking charges – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice – where potential for contamination – virtually no risk of judge or magistrate giving evidence more weight than entitled – strength of circumstantial case found in examining all of evidence together
Criminal Code 2002 (ACT), s 603(7)
Evidence Act (ACT), ss 55(1), 56(1), 135, 137
APPEAL – PRACTICE AND PROCEDURE – Pleadings – Application to amend statement of claim – Court’s discretion – Amendment to plead assignment of causes of action – Whether amendments bad in law or not fairly arguable – Whether granting of leave would be futile – Relevant principles – Whether genuine commercial interest – Whether necessary to plead – Material facts giving rise to genuine commercial interest – Whether leave ought to have been granted – Appeal allowed – Supreme Court (General Civil Procedure) Rules 2005 (Vic), rr 13.02(1)(a), 13.07(1)(a), (b) and (c), 36.01(1)(a), (b) and (c), and 76.06.09(2)(b) and (c); Civil Procedure Act 2010 (Vic), ss 7(1) and 63; Evidence Act 2008 (Vic), ss 55, 56 and 135.
CRIMINAL LAW – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.
CONSTRUCTION OF LEASE – Proper construction of head lease and sub lease – Dispute between tenant and sub tenant whether rent review clause from head lease incorporated into sub lease – Rent review to be ‘in the same manner’ – Meaning of ‘manner’– Whether terms inconsistent – Validity of rent review procedure undertaken – Requirement to pay part of the rent sought if sub tenant objects to rent review – Exercise of option to renew sub lease – Obligation to seek consent from head landlord – Whether sub tenant a monthly tenant or a tenant in equity for further term – Objections to evidence.
Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a nonparole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).
EVIDENCE – Expert opinion based on specialised knowledge – Opinion on matters outside of original remit – Admissibility – “Basis rule” – Evidence Act 2008 (Vic) ss 55, 79 – Civil Procedure Act 2010 (Vic) ss 65F, 65H, 65K – Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 44.05.
EVIDENCE – Admissibility – Tender of documents produced in response to subpoena – Relevance – Authenticity of a document – Hearsay exception – Whether business records – Discretionary exclusion rule – Whether unfair prejudice substantially outweighs probative value – Evidence Act 2008 (Vic) ss 48(1)(e), 55, 56, 58, 59, 69, 135.
ACCIDENT COMPENSATION – Appeal – Serious injury application – Claimed psychiatric injury arising out of aggravation of shoulder pain – Causation of psychiatric injury where physical consequences of aggravation not permanent – Factual basis of expert evidence disputed on appeal – Adequacy of reasons – New case advanced on appeal – Civil Procedure Act 2010.
 Evidence Act 2008 s 55(1) and definition of ‘probative value’ of evidence in the Dictionary to the Evidence Act 2008 .
TORTS – negligence – police – police highway patrol – motorcade – Eastern Distributor – boomgate – how did the boomgate come to be lowered – were instructions given to lower the boomgate – was the plaintiff’s speed excessive – duty of care – breach of duty – causation – contributory negligence – apportionment – Motor Accidents Compensation Act 1999 – damages – plaintiff’s injuries – vocational reports – occupational therapists – non-economic loss – past and future economic loss – superannuation – out of pocket expenses – future medical expenses – domestic assistance – past care – future care future therapy, driving aids and equipment – orders
TORTS – defences – unpleaded defence
EVIDENCE – Admissibility – tendency and coincidence evidence – prior conduct – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101
TRIAL – Roles of judge and jury – tendency and coincidence evidence – general principles – weighing probative value and prejudicial effect – Evidence Act 2011 (ACT), ss 97 and 101
EVIDENCE — application to adduce tendency evidence — whether significant probative value — meaning of fact in issue — general discretion to exclude — application allowed in part.
EVIDENCE – accused was playing violent computer game before confrontation leading to death of deceased – whether evidence of nature of the computer game admissible – whether probative of state of mind of accused – whether probative value outweighed by prejudicial effect.
EVIDENCE – admissibility – Part 3.4 Evidence Act 1995 (NSW) – s87 – whether statement of witness contains admissions – whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions – whether witnesses representations related to a matter within the scope of her employment
EVIDENCE – relationship evidence – whether relevant – operation of exclusionary provisions
CRIMINAL LAW – Crown appeal against ruling excluding coincidence evidence – Crown appeal against interlocutory judgment severing counts on indictment – whether ruling eliminated or substantially weakened the prosecution case – Criminal Appeal Act 1912, 2 5F.
EVIDENCE – admissibility – coincidence evidence – test – relevance – significant probative value – Evidence Act 1995 , ss 55 and 98.
CRIMINAL LAW – evidence – tendency evidence – evidence proposed to be adduced by accused concerning behaviour of deceased child’s mother
CORPORATIONS – winding up – statutory demand – application to set aside – Corporations Act 2001, ss 459G, 459H – whether evidence sufficient to establish offsetting claim – whether evidence sufficient to establish quantum of offsetting claim
[This headnote is not to be read as part of the judgment]
The respondent, Analysis & Technology Australia Pty Limited, served a statutory demand on the applicant, Britten-Norman Pty Limited, pursuant to the Corporations Act 2001 (Cth), s 459E. The applicant applied to set aside the statutory demand pursuant to the Corporations Act 2001 (Cth), ss 459H(1)(b), 459J(1)(a) and 459J(1)(b). The primary judge dismissed the application.
The applicant sought leave to appeal from that dismissal. The summons for leave to appeal and the appeal were heard concurrently. The application raised two issues for determination:
Whether the evidence was sufficient to satisfy the Court that there was an offsetting claim pursuant to the Corporations Act, s 459H(1)(b); and
Whether, pursuant to the Corporations Act, s 459H(2)-(3) the evidence was sufficient to satisfy the Court that the amount of the offsetting claim was greater than the amount of the statutory claim less the minimum statutory amount of $2,000.
The Court granted leave to appeal and allowed the appeal.
Held by the Court (Beazley P, Meagher and Gleeson JJA):
In respect of (1):
Pursuant to the Corporations Act 2001, s 459G there must be evidence that satisfies the court that there is “a serious question to be tried”, or “an issue deserving of a hearing” or a “plausible contention requiring investigation” of the existence of either a dispute as to the debt or an offsetting claim under the Corporations Act 2001, s 459H: .
Principal legislation and cases considered: Corporations Act 2001, ss 459G, 459H; Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; Chase Manhattan Bank Australia Limited v Oscty Pty Limited  FCA 1208; 17 ACSR 128; Scanhill Pty Ltd v Century 21 Australasia Pty Ltd  FCA 618; (1993) 47 FCR 451.
Evidence sufficient to satisfy this test need not conclusively prove the claim or otherwise be incontrovertible or substantially non-contestable: . The existence of evidence that casts doubt on the contention that there is a disputed debt or an offsetting claim is not the basis for a rejection of an application under the Corporations Act, s 459H: . The evidence does not have to be supported by contemporaneous documentation: .
Principal legislation and cases considered: Corporations Act 2001, ss 459G, 459H; Evidence Act 1995 , s 55; Corporations Rules, r 2.4(1); Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785; TR Administration Pty Ltd v Frank Marchetti & Sons Pty Ltd  VSCA 70; 66 ACSR 67; Infratel Networks Pty Ltd v Gundry’s Telco & Rigging Pty Ltd  NSWCA 365; 297 ALR 372.
The primary judge erred because when the evidence is considered as a whole, having regard to the absence of challenge to aspects of it, the evidence established a plausible contention requiring investigation: .
In respect of (2):
The evidence before the primary judge was sufficient to establish that the applicant had an offsetting claim for the purpose of the Corporations Act, s 459H(1)(b) for misleading or deceptive conduct (and for that matter in contract) which was greater than the statutory claim less the minimum statutory amount of $2,000.
Evidence – admissibility – whether opinions expressed were admissible – whether discretion to exclude should be exercised.
EVIDENCE – Admissibility – Documents and materials used by expert witnesses in the course of preparing expert opinions – Documents and materials provided to expert witnesses in the course of preparing expert opinions – Court’s discretion to exclude evidence – Evidence Act 2008 (Vic), ss 55, 56, 69, 76, 79, 135(c), 136 – Civil Procedure Act 2010 (Vic) ss 1, 8, 9, 49(3)(g).
CRIMINAL LAW – Conviction – Conspiring to do acts in preparation for or planning of terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code (Cth) – Reconnoitring Holsworthy Barracks and seeking Islamic fatwa for armed attack on barracks – Whether convictions unsafe and unsatisfactory or otherwise unreasonable – Whether open to find accused committed acts in furtherance of conspiracy – Trial – Whether trial unfair by reason of Crown alleging lies evidencing consciousness of guilt against one accused but not another – Jury directions – Whether judge sufficiently directed jury as to need for Crown to prove intent to advance Islam through violence – Whether judge erred by creating new arguments for Crown – Inconsistent verdicts – Whether acquittal of some co-accused inconsistent with conviction of others – Indictment – Severance – Whether strength of Crown case against one co-accused so much weaker than strength of Crown case against another as to require that indictment be severed – Possible alternative verdicts – Whether judge bound to leave State offence as possible alternative verdict to Commonwealth offence charged – Constitutional law – Freedom of religion – Whether proscription of advancement of religious causes by violent means a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution – Evidence – Whether evidence of accused’s hostility towards Australia and her citizens to be excluded as evidence of which the probative value was outweighed by prejudicial effect – Whether judge sufficiently directed jury that evidence admissible against one accused not admissible against another – Whether judge erred in directing jury that some aspects of evidence important and others peripheral – Criminal Code (Cth), ss 11.5(1) and 101.6(1) – Commonwealth Constitution, s 116.
CRIMINAL LAW – Sentence – Each offender sentenced to 18 years’ imprisonment with a non-parole period of 13 years and six months – Whether sentence manifestly excessive – Amateurish operation – Application of three-quarters rule in determining parole period – Lodhi v The Queen  NSWCCA 360; (2007) 179 A Crim R 470, R v Elomar  NSWSC 10; (2010) 264 ALR 759, and Benbrika v The Queen (2010) 29 VR 593, considered.
CRIMINAL LAW – Sentence – Director’s appeal – Whether sentence manifestly inadequate – Seriousness of offence and maximum penalty – General and specific deterrence – Protection of the community.
EVIDENCE – Re-opening of the Plaintiff’s case – Tender of fresh evidence – Overriding consideration of interests of justice.
CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.
CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following real possibility of collusion could not be excluded – Retrial.
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
APPEAL FROM LOCAL COURT – Appeal against orders by magistrate that non-intimate forensic procedures be carried out – whether plaintiff denied procedural fairness.
CONTRACT – breach – repudiation – franchise agreement – whether termination unlawful – whether breach by franchisor of essential term – willingness to perform only in manner substantially inconsistent with obligations
CONTRACT – breach – unreasonable restraint of trade
RESTITUTION – claim for work and labour done – flawed method of proving any loss suffered
TORT – inducement of breach of contract – attempt to establish case by inference
PRACTICE AND PROCEDURE – application to amend pleadings during trial – leave granted – date from which amendment to take effect – whether new and distinct cause of action – relation back effect of order.
ACCIDENT COMPENSATION — Workplace accident — Impairment — Assessment — Medical Panel — American Medical Association Guides — Interpretation — Multilevel fractures of transverse process — Whether constituted ‘multilevel spine segment structural compromise’ — Whether Panel decision vitiated by jurisdictional error — Whether expert evidence admissible on question of construction of Guides — Appeal dismissed — Transport Accident Commission v Serwylo  VSC 421 applied — Accident Compensation Act 1985 (Vic) s 91(1) — American Medical Association Guides to the Evaluation of Permanent Impairment (4th ed).
EVIDENCE — Expert evidence — Interpretation — Impairment assessment — American Medical Association Guides — Categories of spinal impairment — Whether technical terms — Whether used with specialised meaning — Whether expert medical evidence admissible to assist in construction of terms — Evidence Act 2008 (Vic) ss 55(1), 76(1), 79.
WORDS AND PHRASES — ‘As with fractures’, ‘fractures’.
EVIDENCE LAW – evidence of presence of illicit substance in accused’s body – opinion about effect of drug on accused – relevant to whether accused was person who committed the offence – whether danger of unfair prejudice outweighs probative value – evidence to be admitted
CRIMINAL LAW – Appeal – Conviction – Appellant convicted of one charge of dangerous driving causing death and five charges of dangerous driving causing serious injury – Whether trial judge erred in admitting the earlier driving of the accused – Whether trial judge erred in directions to the jury concerning the purpose to which the jury might use the evidence of the appellant’s earlier driving – Appeal allowed – Convictions quashed and retrial ordered.
EVIDENCE – Credibility and reliability – Previous representation of a person who is not a witness – Evidence Act 2008 (Vic) ss 55, 101A, 108A.
CRIMINAL LAW – Ruling – Admissibility of a statement of additional evidence from a witness – Evidence vague, not sufficiently relevant and not a professional opinion – Evidence inadmissible – Criminal Procedure Act 2009 (Vic) s 188, Evidence Act 2008 (Vic) ss 55, 59, 76, 77, 79(1).
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