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
EVIDENCE LAW – evidence of unfired cartridges located at home of accused – unfired cartridges found whilst accused in hospital – unfired cartridges of same calibre as ammunition found at scene – majority of unfired cartridges of same make as ammunition found at scene – whether evidence relevant – whether probative value of evidence outweighed by danger of unfair prejudice – evidence to be admitted
TORTS – negligence – concrete batching plant – plant collapse onto truck – bin collapse – scope of duty of care – whether risk of harm arising from collapse was foreseeable – exposure to significant risk – constructive knowledge of risk – whether risk ought to have been known – systems of work at the plant – how the plant was maintained – deficiencies in systems – bin support structure required maintenance before collapse – bin support system – expert evidence – s 5B Civil Liability Act 2002 – causation – s 5D Civil Liability Act 2002 – reasonable care was required – plaintiff’s injuries – credibility – medical records – expert evidence – damages – physical and psychological injuries – economic losses – orders
EVIDENCE – privilege – experts not given access to relevant information – inferences drawn against defendant
EVIDENCE – Admissibility – Court’s discretion to exclude evidence – Whether danger of undue waste of time outweighs probative value – Evidence Act 2008 (Vic), ss 55, 135(c).
CRIMINAL LAW – particular offences – offences against peace and public order – affray, riot, unlawful assembly and like offences – riot – evidence of incidents in disturbance beyond when accuseds’ involvement can be established – evidence relevant to common purpose – sufficient temporal connection – probative value not outweighed by unfair prejudice
EVIDENCE – Admissibility of evidence – Evidence as to the witness’s state of knowledge and industry practice – Relevance of evidence of power companies’ record keeping – Opinion based evidence – Evidence Act 2008 (Vic) ss 55(1), 79.
CRIMINAL LAW – Appeal – Appeal against conviction – Convictions arising out of sexual abuse of appellant’s daughter – Admissibility of expert evidence as to the general behaviour of child victims of sexual abuse – Incidental evidence concerning common parental reactions – Relevance of evidence concerning counter-intuitive behaviour –Whether witness had ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2008 – Whether basis of opinion properly established – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 79, 135, 137, 108C – Criminal Procedure Act 2009 s 388 – Appeal dismissed.
EQUITY – fiduciary duty – fact-based fiduciary duty – where plaintiff granted to defendant a licence to exploit technology – finding of breach of contract through exploitation contrary to licence agreement – concurrent finding of existence and breach of fiduciary duty of defendant licensee by reason of same acts – no recognised fiduciary relationship – whether the circumstances gave rise to the fiduciary duty alleged – EQUITY – equitable obligation of confidence – licence agreement imposed confidentiality restraints with respect to information – finding of existence and breach of concurrent equitable duty of confidence – question whether equitable duty may co-exist with contractual duty not in contest – whether information said to be protected by equitable duty sufficiently identified – whether confidential quality sufficiently shown – course of trial such as to prevent adequate inquiry into those questions – need for new trial – TRADE AND COMMERCE – misleading or deceptive conduct – representation as to future matter – whether representation contrary to statute – whether order varying contract affected by such representation properly made
NEGLIGENCE – duty of care – breach of duty – workplace accident – whether facts found by judge adequate to support findings of negligence and decisions on apportionment between tortfeasors and absence of contributory negligence – NEGLIGENCE – damages – future economic loss – whether findings on likely time of return to work and quantification of lost earnings supportable – whether award for non-economic loss should be increased to reflect current prescribed damages – EVIDENCE – workplace accident report – no evidence of authorship – whether report admissible – whether admitted “only against” one defendant
EVIDENCE – Admissibility – relevance – whether evidence of matters that pre-date and post-date the matters pleaded are nonetheless relevant to proving pleaded matters – whether evidence of matters that occurred in markets other than the markets pleaded are nonetheless relevant to proving the matters pleaded
EVIDENCE – Admissibility – hearsay – whether perceptions of perceptions are admissible – whether question arises
EVIDENCE – Admissibility – hearsay – whether documents relevant for a non-hearsay purpose
EVIDENCE – Admissibility – relevance – documents of uncertain status – whether relevant
EVIDENCE – Admissibility – draft and non-final documents – whether admissible
EVIDENCE – Admissibility – relevance – whether documents relevant to case as pleaded
EVIDENCE – Admissibility – relevance – whether documents concerning alleged conspirators not at trial are relevant to the allegations made against those who are – whether use of such documents is coincidence reasoning – discussion of the matters that such documents might be used to prove
EVIDENCE – Admissibility – business records – whether minutes of meetings of an organisation that represents businesses are business records of the businesses or, alternatively, the organisation – whether representations made therein are made ‘in the course of, or for the purposes of, the business’ of each member business or, alternatively, of the organisation – whether document must belong to the entity to whose business the document relates – whether minutes discovered on the computer networks of a business are ‘belonging to or kept by’ the business
EVIDENCE – Admissibility – business records – whether statements of opinion in business records are admissible
EVIDENCE – Admissibility – relevance – authenticity – whether document’s authenticity must be proved for the document to be admissible – whether inferences as to authenticity may be drawn from the document itself – whether National Australia Bank v Rusu  NSWSC 539; (1999) 47 NSWLR 309 should be followed
DAMAGES – leases and tenancies – whether there was a breach of contract – lock out by lessor – hotel – claim for damages for outstanding rent; repair and replacement of plant and equipment; repair and maintenance of hotel; and rent to end of term – defendant in default of various obligations including rent – plaintiff re-entered, occupied and took possession of the hotel – claim that defendant failed to maintain, replace, repair hotel – loss of bargain claim dismissed – referee claims – evidentiary difficulties – nature of lease obligations – was the defendant liable for any prior breach of the lease – observed items – claim for painting-head contractor – claim for costs of re-entry – cross-claim – repayment of security deposit – conversion – claim in respect of mini bus – interest – costs
PROCEDURE – various notice of motions – leave sought to rely on further affidavits – refusal of pleading amendment – refusal of the adjournment application – rejection of the tender
EVIDENCE – admissibility – expert evidence
CRIMINAL LAW – Evidence – tendency – domestic homicide – murder – application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship – alleged attempt to strangle previous partner’s male colleague – alleged attempt to strangle previous partner – accused caused self harm following dispute with previous partner – similarity of acts – distance in time – whether significant probative value to facts in issu
EVIDENCE – whether evidence relevant
NEGLIGENCE – duty of care – plaintiff slipped on grease on surface of car park – escaped from grease trap under control of building manager – content of duty of care owed by car park operator to avoid risk of slipping on car park surface – whether hourly inspections would have prevented accident – grease trap alarm system known to be faulty – content of duty of care owed by building manager – whether regular inspections of grease trap would have prevented accident
NEGLIGENCE – apportionment – whether primary judge erred in concluding car park operator primarily at fault as best placed to deal with risks and safety
EVIDENCE – admissibility – whether primary judge erred in rejecting tender of documentary evidence – tendering party’s obligation to make clear purpose and basis of tender – ordinarily no “improper” rejection of evidence if grounds which would justify tender not argued before primary judge.
PROCEDURE – amendment – joinder – oral application to amend and join additional party – no notice of motion served – challenge to exercise of discretion to dispense with filing and service of notice of motion and to grant leave to amend – no House v The King error – Civil Procedure Act, s 64
NATIVE TITLE – application for review of Registrar’s decision under s 190F Native Title Act 1993 – Registrar ‘s determination that native title application does not meet criteria for registration in s 190B – applicant provides additional anthropological evidence – whether Tribunal was required to consider laws and customs of local clan as opposed to wider nation – whether the application meets the criteria in s 190B – discussion of ‘society’ for purposes of Native Title Act – discussion of anthropological evidence – native title application does not meet requirements for registration – application dismissed.
2. Ms Winton was a Division Director at Macquarie Relationship Banking. The sole ground of objection raised by MBL is that, contrary to the requirements of ss 55 and 56 of the Evidence Act 1995 (Cth), none of the identified paragraphs of Ms Winton’s outline of evidence is relevant to any issue in the case ASIC has pleaded against MBL. Specifically, MBL claimed that Ms Winton’s evidence is not relevant to ASIC’s case as it relates to MBL’s knowledge of the managed investment scheme allegedly promoted by Storm Financial Limited (Storm Scheme).
Evidence – admissibility – whether opinions expressed were admissible
Evidence Act 1995 s 55, s 76(1), s 79(1),
s 80(a), s 80(b)
ADMINISTRATIVE LAW – judicial review – failure to take into account relevant considerations – whether failure to refer to particular evidence can constitute failure to take into account relevant consideration – whether applicant entitled to rely on the reasons of the decision maker – whether necessary for applicant to rely on submissions before decision maker – need to identify source of legal obligation to consider mandatory factors – whether decision maker considered evidence – whether evidence is a relevant consideration for the purposes of judicial review
DAMAGES – motor vehicle accident – future economic loss – use of buffer – whether decision to award damages by way of buffer is an evaluative judgment – whether buffer manifestly unreasonable given likely future loss
EVIDENCE – Opinion based on specialised knowledge – Admissibility of evidence – Requirements of Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Evidence Act 2008 (Vic) ss 76, 79 and 55.
CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown was highly prejudicial to the accused – the probative value of the evidence did not substantially outweigh the prejudicial effect – application refused
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Defence application to sever the indictment – found that there would be an unacceptable risk of prejudice to the accused if counts were heard in one trial – indictment severed – application allowed
Evidence Act 1995 (Cth), ss 97
Evidence Act 2011 (ACT), ss 55, 56, 97, 101
CRIMINAL LAW – assault – summary hearing in Local Court – charge dismissed – prosecution appeal against dismissal – Magistrate did not permit prosecutor to call certain witnesses – whether denial of procedural fairness – whether error of law in Magistrate’s approach to dismissal of charge – whether Magistrate failed to give reasons required by law – duties of Magistrate at defended criminal hearing – error of law and denial of procedural fairness established – matter remitted to Local Court for hearing before a different Magistrate
40. Of course, the progress of a hearing will depend upon the issues arising for determination during the trial, including the question as to whether, as a matter of law, there is no prima facie case at the close of the prosecution case. This involves application of well-recognised principles: Director of Prosecutions v Elskaf  NSWSC 21 at . If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the tribunal of fact in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left for decision by the tribunal of fact. A verdict of not guilty may be entered at the conclusion of the prosecution case only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen  HCA 51; 171 CLR 207 at 212, 214-215. The principle remains the same whether application is made for an acquittal at the end of the prosecution case where trial is proceeding before Judge and jury, or where trial is proceeding before a Judge or Magistrate sitting alone.
41. The duty of a trial Judge, whether sitting with a jury or sitting alone, has been repeatedly stated and is well understood. In Crompton v The Queen  HCA 60; 206 CLR 161, Gleeson CJ said at 173 :
“Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.”
42. A criminal trial is not an inquisition. It is for the parties to act as protagonists in the trial with the judge to “take no part in that contest, having his [or her] own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law”: Ratten v The Queen  HCA 35; 131 CLR 510 at 517 (Barwick CJ).
43. These principles have been stated repeatedly in decisions such as Director of Public Prosecutions (NSW) v Burns  NSWCA 265; 207 A Crim R 362 at 369 .
44. In Director of Public Prosecutions (NSW) v Yeo  NSWSC 953; 188 A Crim R 82, the Court said at 95-96 :
“Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen  HCA 9; (2006) 80 ALJR 614 at 618-619 . The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen  HCA 42; (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher  NSWCCA 355 at ; Robinson v R  NSWCCA 192; (2006) 162 A Crim R 88 at - . Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty.”
45. If the defence objects to the prosecution calling a particular witness or witnesses or adducing certain evidence from a witness or objects to the tender of physical evidence, then the Judge or Magistrate should ascertain the basis of the objection for the purpose of ruling whether the evidence ought be allowed. If necessary and appropriate for the purpose of ruling on the objection, evidence may be given on the voir dire even if proceedings are without a jury: s.189 Evidence Act 1995 ; Director of Public Prosecutions (NSW) v Zhang  NSWSC 308; 48 MVR 78 at - .
46. The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen  HCA 40; 217 CLR 1 at 9  (Gleeson CJ and Hayne J).
47. There is no obligation on a trial judge to reject evidence under s.137 Evidence Act 1995 to which no objection has been taken: R v FDP  NSWCCA 317 at 651-653 - . This reflects the role of the judge in adversarial proceedings. A statutory exception to this general principle is s.41 Evidence Act 1995 which requires a judge to reject an improper question whether or not objection has been taken: R v FDP at 652 - (concerning s.275A Criminal Procedure Act 1986 which is now to be found in s.41 Evidence Act 1995 ).
48. A prosecutor at a criminal trial (including a police prosecutor) is under a duty to lead the whole of the evidence to which the accused is required to make answer: Dhanhoa v The Queen at 9 . The duty of the prosecutor with respect to the calling of witnesses is well known: R v Kneebone  NSWCCA 450; 47 NSWLR 450 at 457-462 -.
PRACTICE AND PROCEDURE – application under rr 6.01 and 29.03 of the Federal Court Rules 2011 to strike out paragraphs of affidavit – whether paragraphs contain matter that is scandalous, irrelevant or otherwise oppressive
17. I do not propose to strike out these paragraphs. In my view they do not contain matter that is scandalous or oppressive. Having said that, I doubt that some of the material is of much probative value. For example, some of the conversations recorded by the first defendant (see paragraphs 4.3, 4.5, 4.6, 4.7, 4.8, 4.11 and 4.12) do not seem to advance materially the narrative of the events that the first defendant has recorded. Nevertheless, I would not be prepared to find at the present time that, if read at trial, the asserted facts in these paragraphs would not pass the threshold of s 55 of the Evidence Act 1995 (Cth) (the Evidence Act ). There may be a real question whether the probative value of such evidence is substantially outweighed by the danger that it may cause or result in undue waste of time or would otherwise be liable to rejection on discretionary grounds under s 135 of the Evidence Act . That is not, however, a ruling I am prepared to make at the present time. It is sufficient for me to indicate that, as presently advised, some of the conversational material in these paragraphs appears to me to be of marginal relevance.
31. In my view these paragraphs do not contain matter that is scandalous or oppressive. The second plaintiff may well disagree with the first defendant’s opinions and conclusions underpinning his report to ASIC. That disagreement does not make the first defendant’s proposed evidence about the making of this report, or his reason for making it, either scandalous or oppressive. Moreover, I do not understand the first defendant to be contending that he proposes to read these paragraphs to prove that the second plaintiff has engaged in conduct that does contravene the Corporations Act. Rather he proposes to read these paragraphs to show that a report to ASIC was made and that that fact affected his relationship with the second plaintiff and influenced the course of events leading to the first plaintiff being taken out of administration and the mortgage of the Kelman Estate being granted. If need be, these paragraphs can be read subject to a limitation under s 136 of the Evidence Act as to their use. Any such ruling can be made at trial. I am not persuaded that they contain matter that is so lacking in relevance that they should be struck out. I am not satisfied that these paragraphs contain matter that is oppressive in the circumstances.
CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown is of significant probative value – application conditionally allowed
CRIMINAL LAW – EVIDENCE – Crown application to adduce Coincidence Evidence – evidence sought to be adduced by the Crown is not coincidence evidence according to s 98 of the Evidence Act 2011 (ACT) – application refused
Evidence Act 1995 (Cth), ss 97
Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,
DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL
DEFENCE AND WAR – charges of indecency – seven counts of indecency found by General Court Martial –appeal – grounds – prosecutor’s final address at trial prejudicial – direction made by Judge Advocate to jury – any prejudice to appellant negatived – grounds not made out – ruling made by Judge Advocate on objections to charge sheet – provision relied upon said to be unavailable – duplicity alleged – grounds not made out – provision of Crimes Act on consent said not to apply – ground not made out – Judge Advocate said to have erred in pre-trial ruling on the defence’s objection to a member of the panel – application was refused – said to be reasonable grounds for inferring ostensible bias – resulting in wrongful convictions and substantial miscarriage of justice and/or material irregularity – ground not made out – fraudulent misrepresentation of fact said to have occurred – error alleged in Judge Advocate’s directions to panel on whether or not complainant’s consent negatived – ground not made out – convictions said to be inconsistent with acquittals – found – open to panel to conclude to requisite standard that appellant guilty – ground rejected – conviction under Charge 22 said to be unreasonable and/or could not be supported by evidence – ground upheld – Charge 22 quashed – Charge 23 laid as alternative to Charge 22 – evidence supports this charge – conviction recorded and appellant sentenced to severe reprimand – recorded telephone conversation between complainant and appellant said to be inadmissible – Judge Advocate ruled that desirability of admitting evidence outweighed undesirability of admitting it – no error in exercise of discretion – ground not made out – admission of recording of police interview with appellant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error found – ground not made out – appellant said offences subject of convictions were indictable offences – entitled to trial by jury – ground dismissed – Tribunal bound by authority requiring rejection of ground