Category Archives: s. 135

R v Djenadija (No 2) [2015] ACTSC 59 (6 March 2015)

CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 16.
EVIDENCE – Tendency Evidence – whether the accused had a tendency to have a sexual attraction to young girls – whether the accused had a tendency to act on his sexual attraction to young girls – whether the accused had a tendency to rub his groin against young girls – whether the accused had a tendency to touch the sexual areas of young girls – whether the accused had a tendency to show young girls pornography – whether the accused had a tendency to groom young girls by talking about sexual activity or talking sexually to them – application to adduce tendency evidence allowed in part.

R v Lambaditis [2015] NSWSC 182 (9 March 2015)

EVIDENCE – EXPERT EVIDENCE – MARTIAL ARTS TRAINING – whether the accused proficient in martial arts techniques – whether expert evidence capable of establishing such proficiency – whether the evidence in the Crown case admissible as expert opinion evidence on a state of mind issue on a charge of murder – namely as proof of an intention to cause grievous bodily harm – held that the opinion evidence in question could not be relevant to a fact in issue in the proceedings – the evidence even if admissible should be excluded under s 135 or s 137 Evidence Act 1995

R v A (No 3) [2015] NSWSC 79 (17 February 2015)

CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded

R v Himbert [2015] ACTSC 6 (2 February 2015)

CRIMINAL LAW – Particular Offences – drug offences – offence of trafficking in a controlled drug other than cannabis – judge alone trial – offence proved.
JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – whether case should be dismissed for want of jurisdiction – whether requisite geographical nexus exists.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether standard for admission of voice identification evidence is the same as visual identification evidence under s 135 of the Evidence Act 2011 (ACT) – held voice identification evidence is held to the general provisions of admissibility under the Evidence Act 2011 (ACT) – held that evidence not excluded by s 135 Evidence Act 2011 (ACT)

Application by Thomas Hudson Wilson pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2014] NSWSC 1792 (16 December 2014)

CRIMINAL LAW – application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – photo identification evidence – no special facts or special circumstances raised – identification of seized items – no sense of unease or disquiet required raised – application dismissed

In the matter of Beechworth Land Estates Pty Ltd (admins apptd) and Griffith Estates Pty Ltd (admins apptd) [2014] NSWSC 1743 (1 December 2014)

PROCEDURE – subpoenas – application for subpoena to be set aside – where subpoena issued seeking production of documents to impugn credit of witness – whether subpoena issued for legitimate forensic purpose – whether subpoena should be set aside.

Pasoski v R [2014] NSWCCA 309 (15 December 2014)

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

Cahill v Kenna; Cahill v Ferrier [2014] NSWSC 1763 (10 December 2014)

EVIDENCE – expert evidence – whether to reject whole of evidence of expert witness where prepared on a basis inconsistent with the impugned valuation – whether evidence was unfairly prejudicial – where excluding evidence would effectively determine the issue of substance to which that evidence was directed

EVIDENCE – expert evidence – whether to reject evidence of valuations prepared for non-litigation purposes – where valuations were business records – whether r 31.23 only applies to reports prepared by an “expert witness” – whether court should “otherwise order” – whether evidence would be unfairly prejudicial – where signatories did not acknowledge obligations under schedule 7 of the Uniform Civil Procedure Rules 2005 (NSW)- where signatories not to be called as witnesses – where signatories not involved in preparation of joint expert reports

EVIDENCE – expert evidence – expert valuation of land – whether one expert’s evidence to be preferred – where one expert witness briefed with substantially more information – where other expert prepared a “blind” valuation – where expert town planning advice not available to original valuer – where expert town planning advice nevertheless relied upon by one expert witness – where expert town planning advice speculative

NEGLIGENCE – duty of care – whether mediator and valuer owed a common law duty of care to plaintiffs – whether plaintiffs were vulnerable – where valuer did not know the purpose for which the valuation was to be used – whether reliance is sufficient to establish vulnerability – whether plaintiffs could have protected their own interests – whether valuation negligent – whether valued at highest and best use of the site – whether negligent in valuing property without expert town planning advice – whether no valuer acting prudently and reasonably could arrive at the value in the valuation report – whether mediator negligent in instructions to valuer – whether mediator owed parties in dispute a duty of care in instructing valuer – whether mediator breached duty of care – whether mediator acting in capacity as mediator or separate contract entered into for mediator to instruct valuer – whether mediator protected from liability as acting in capacity as mediator

MISLEADING AND DECEPTIVE CONDUCT – expert valuation of property – whether value attributed to property was misleading or deceptive – whether direct or indirect reliance on valuation – whether the valuation causative of loss

Pace (a pseudonym) and Collins (a pseudonym) v The Queen [2014] VSCA 317 (5 December 2014)

1 Pursuant to certification of the trial judge under s 293(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicants seek leave to appeal an interlocutory decision made on 25 November 2014 in which his Honour refused to exclude certain ‘picture identification evidence’.

KH v R [2014] NSWCCA 294 (1 December 2014)

EVIDENCE – application by Crown to cross-examine unfavourable witnesses – advance ruling – Evidence Act 1995 (NSW), ss 38 and 192A – witnesses included persons named on indictment but not charged – whether appellable error in grant of leave to cross-examine – whether appellable error in judge inquiring, in presence of jury, whether witness aware of right to object to giving self-incriminating evidence

Ahern v Aon Risk Services Australia Ltd [2014] NSWSC 1697 (28 November 2014)

EVIDENCE – pre-trial application for exclusion of expert evidence – whether admissibility should be dealt with on an interlocutory basis by judge who may not be the trial judge – whether evidence complies with test for admissibility of expert opinion evidence – whether general discretion to exclude evidence should be exercised – pre-trial application for directions with regard to expert evidence – consideration of the role a judge should play in determining what evidence is presented

R v Lin [2014] NSWSC 1752 (27 November 2014)

CRIMINAL LAW – EVIDENCE – expert evidence – whether opinion as to usual causes of fires in “meth labs” unfairly prejudicial – evidence allowed – hearsay evidence – evidence that gas burner “on” – expert who examined premises overseas – whether “unavailable to give evidence” – no notice given – no evidence of steps taken to secure attendance – unclear whether evidence based on personal observation – unclear whether evidence a conclusion – no evidence of basis of conclusion – danger of unfair prejudice – evidence rejected

Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd & Ors (Ruling No 8) [2014] VSC 567 (20 November 2014)

PRACTICE AND PROCEDURE – Overarching obligations – Duties of experts to court– Expert Code of Conduct – Duties of legal practitioners to court – Overarching obligation to disclose existence of documents – Overarching obligation not to mislead or deceive – Whether breach of overarching obligations by expert witness and by legal practitioners instructing that expert in preparation of report and giving evidence – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

LEGAL PRACTITIONERS – Overarching obligations – Duties of legal practitioners to court – Whether breach of overarching obligations by legal practitioners instructing an expert and leading evidence from that expert – Overarching obligation to disclose existence of documents – Overarching obligation not to mislead or deceive – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

EXPERT WITNESS – Overarching obligations – Duties of experts to court– Expert Code of Conduct – Whether breach of overarching obligations by expert witness when preparing report giving evidence – Overarching obligation not to mislead or deceive – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).

Beckett v State of New South Wales [2014] NSWSC 1625 (18 November 2014)

EVIDENCE – malicious prosecution – whether evidence of witness relevant to an absence of reasonable and probable cause – whether evidence impermissibly concerned only with plaintiff’s guilt – where witness possibly unreliable – whether probative value of evidence outweighed by danger of unfair prejudice pursuant to s 135 Evidence Act 1995

SLS v The Queen [2014] VSCA 31 (6 March 2014)

CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.

CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.

Hodder v Hamilton & Fitzpatrick [2014] VSCA 279 (6 November 2014)

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.

Rice v R (No 1) [2014] NSWSC 1400 (14 October 2014)

EVIDENCE – accused indicted for conspiracy to murder – evidence of accused’s DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested – whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence

Dale v Clayton Utz (a firm) (No 2) [2014] VSC 517 (22 October 2014)

PRACTICE AND PROCEDURE – Partnership – Removal of partner – Whether removed partner entitled to split case – Applicable principles – Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VicRp 18; [1985] VR 187 (FC) – Wong v Carter [2000] VSCA 53 – French v Triple M Melbourne Pty Ltd Ruling (No 2) [2008] VSC 548 – Privileges against self-incrimination – Re Australian Property Custodian Holdings (In Liquidation) (Receivers and Managers Appointed) (Controllers Appointed) (No 2) [2012] VSC 576; (2012) 93 ACSR 130 – Gemmell v Le Roi Homestyle Cookies Pty Ltd (In Liquidation) [2014] VSCA 182 – Evidence Act 2008 , ss 128, 135 and 136.

Lau v R [2014] NSWCCA 179 (12 September 2014)

CRIMINAL LAW – CONVICTION APPEAL – attempting to possess a commercial quantity of an unlawfully imported border control drug – 102 kilograms of pure heroin – whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case – whether verdict of jury unreasonable or could not be supported by the evidence – whether evidence as to flight properly admitted – evidence of Crown expert not misleading – differences in interpretation between Crown and defence experts not of significance in conduct of trial – differences in interpretation adequately explained by differences in audio equipment – strong circumstantial Crown case – on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt – evidence of flight properly admitted – no breach of s137 of the Evidence Act 1995 in admitting evidence of flight – conviction appeal dismissed – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether principle of parity properly taken into account – no significant difference in level of criminality between applicant and co-offender – differences in subjective case of applicant and co-offender – sentence of co-offender manifestly inadequate – parity principle not properly applied – need for applicant to be re-sentenced.

Fato v Regione Calabria Pty Ltd [2014] VSC 435 (11 September 2014)

APPEAL — Question of law — Magistrates’ Court Act 1989 s 109 — Test applicable where it is alleged the Magistrate’s decision is not open on the evidence.

ADMINISTRATIVE LAW — Natural justice — Magistrate made comments in running indicating adverse view of credit of appellant and respondent’s key witness — Comments more adverse to respondent’s key witness — Neither party complained during the trial — Appellant not denied natural justice — Waiver of right to rely on any breach of rules of natural justice.

ADMINISTRATION OF JUSTICE — Fair trial according to law — Undue interference by Magistrate in the conduct of the hearing — Magistrate took initiative to telephone a new witness during the hearing — No miscarriage of justice when trial considered as a whole.

CONTRACT — Loan agreement — Non-payment of principal and interest — Whether action statute barred — Limitation of Actions Act 1958 s 5.

Fair Work Ombudsman v Crystal Carwash Cafe Pty Ltd (No 2) [2014] FCA 827 (7 August 2014)

INDUSTRIAL LAW – civil penalty proceedings – contraventions of Vehicle Manufacturing, Repair, Services and Retail Award 2010 (“the Award”) – underpayment of minimum rates of pay under the Award – underpayment of overtime entitlements under the Award – contravention of requirement to keep adequate records – whether contraventions were serious and part of a pattern of conduct – whether high range penalty is justified in the circumstances

Reckitt Benckiser Healthcare (UK) Ltd v Glaxosmithkline Australia Pty Ltd (No 4) [2014] FCA 810 (3 June 2014)

12. In my opinion, the probative value of Mr Hunter’s approximation and reliance on it in circumstances where the experts are not able to identify the common ground as to the objective facts of whatever measurement is appropriate does not justify its admission into evidence. If this evidence were allowed, it would also cause or result in an undue waste of time in the proceedings: see s 135 of the Evidence Act 1995 (Cth).

R v GJ (No 2) [2014] ACTSC 113 (31 March 2014)

EVIDENCE – Admissibility and Relevancy – father on trial for acts of indecency against daughters – proposal to cross-examine witness on specific contents of family report prepared in Family Court proceedings – no proposal to call author of report – mother’s evidence is that report is inaccurate not unfavourable – mother giving evidence through interpreter – no proposal to tender whole report – whether proposed cross-examination about impact of selected parts of report would cause unfairness – whether contents of report admissible as relevant to mother’s credibility – whether mother’s credibility would be affected by her opinion of impact of family report – probative and prejudicial value of parts of family report selected to be subject of cross-examination because they are said to be unfavourable to mother – directions to limit use of evidence not adequate to address prejudice – cross-examination not permitted about specific contents of family report.

Dennis v Chambers Investment Planners Pty Ltd (Administrators Appointed) (No 3) [2014] FCA 648 (20 June 2014)

CORPORATIONS – claim for breach of duties under financial services legislation as it applied at material times – whether respondents had reasonable basis for financial advice given – whether respondents made representations concerning appropriateness of advice or accuracy of finance applications that were misleading or deceptive or likely to mislead or deceive

CONTRACTS – whether respondents breached contractual duty to exercise reasonable care and skill in provision of financial advice – whether respondents owed duty to provide advice “as to the most suitable financial investments”

NEGLIGENCE – whether respondents breached duty to exercise reasonable care and skill in provision of financial advice

EQUITY – whether respondents obtained unauthorised benefit from financial advice relationship – whether respondents breached any contractual, tortious or equitable duty in connection with advice given or involvement in applicant’s purchase of property

EVIDENCE – expert opinion evidence – whether financial planner qualified to give expert evidence concerning duty of care issues and loss – relevance of expert evidence to matters in issue

DAMAGES – whether applicant is entitled to damages – extent to which any claimed loss and damages are attributable to respondents’ conduct – loss of opportunity claim – whether some claimed losses are outside statutory limitation period or otherwise affected by Civil Liability Act 2002 (WA)

Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft [2014] FCAFC 73 (19 June 2014)

PATENTS – lack of inventive step – whether the invention would be obvious to the hypothetical skilled addressee of the patent at the priority date – whether the hypothetical skilled addressee of the patent would have undertaken the steps in the patent as a matter of routine to lead, as a matter of course, to the invention – whether expectation of hypothetical skilled addressee of the patent in undertaking the steps in the patent is a necessary element of the test of obviousness – whether hypothetical skilled addressee of the patent must have expectation of successful production of the invention or “some other useful result” – whether the reformulated Cripps question is a test of universal application – lack of fair basis – lack of novelty.

PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory decision on admissibility of evidence pursuant to r 34.50 of the Federal Court Rules 2011 (Cth) – whether application made out of time – where application for leave to appeal filed within time to apply for leave to appeal from orders – whether interlocutory decision sufficiently connected with orders such that time began to run on date of orders.

EVIDENCE – admissibility of experimental proof of facts – Federal Court Rules 2011 (Cth) r 34.50 – whether manufacture of tablets to be used in dissolution test experiments the subject of directions pursuant to r 34.50 forms part of the experimental proof of fact – whether manufacture of tablets akin to manufacture of standard products used in the course of an experiment.

Held: Appeal dismissed

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

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

Walsh v Walgett Shire Council [2014] NSWSC 812 (11 June 2014)

EVIDENCE – documentary evidence – statutory provisions relating to business records – whether document of WorkCover a ‘business record’ – whether representations in document are made in connection with an investigation – whether investigation must in fact lead to proceedings for exception to apply – application of s 69(3)(b) of the Evidence Act 1995 (NSW)
EVIDENCE – admissibility – whether discretionary reasons for refusing to admit evidence – where evidence in the form of answers to specific questions – where witness not called – application of s 135 Evidence Act 1995 (NSW)

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2014] FCA 568 (30 May 2014)

TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – misleading or deceptive conduct in the taking of a competitor’s trade indicia – passing off – secondary reputation in the colour yellow on covers of telephone directories – date for assessing reputation in yellow – relevance of international use of colour yellow – whether respondents’ use of yellow covers on telephone directories was misleading or deceptive – identification of the class of consumers – erroneous assumption as to trade source – intention to deceive – failed intention to deceive – relevance of strength of reputation – relevance of use of common trade indicia – sufficiency of differentiation between similar products – whether respondents have done enough to differentiate their directories – conduct not misleading or deceptive
TRADE AND COMMERCE – Trade Practices – misleading or deceptive conduct – advertisements in telephone directories – misleading advertisement regarding comparative consumer usage
COPYRIGHT – unjustifiable threats of copyright infringement – relevance of bona fides – whether threat is groundless or unjustifiable

R v Bui [2014] ACTSC 64 (31 March 2014)

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

Marsh Pty Ltd v Vickery [2014] FCA 484 (15 May 2014)

PRACTICE AND PROCEDURE – application for further and better production of documents under subpoena – whether addressee had complied with subpoena – where subpoena required production of electronic properties of documents originating in electronic form – where documents produced documents in hard copy – where electronic properties not produced – application to set aside subpoena on grounds of oppression – where electronic documents within the scope of the subpoena archived on server located in United States – where compliance with subpoena will be costly and time consuming.

Held: Application for further and better production allowed. Application to set aside subpoena dismissed. Orders made for production of documents under subpoena.

EWC Payments PTY LTD v Commonwealth Bank of Australia [2014] VSC 207 (14 May 2014)

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.

Hothnyang v The Queen [2014] VSCA 64 (11 April 2014)

CRIMINAL LAW – Conviction – Murder – Evidence – Relevance – Admissibility – Connection with crime – Disposition of applicant – Drunken orgy extending over two days – Whether evidence of applicant’s drunken aggressive behaviour towards persons other than deceased on morning of second day of orgy, some hours before killing of deceased, admissible as evidence of part of one transaction of which killing formed part – O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566, applied – Evidence Act 2008 , ss 135, 137.

JURY – Discharge – Whether judge erred in refusing to discharge jury after inadmissible evidence given in error – Whether evidence productive of substantial miscarriage of justice – Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, applied; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Baini v The Queen (No 2) [2013] VSCA 157, referred to.

VERDICT – Whether unreasonable – Whether, in view of lies told by principal Crown witness and inconsistencies between evidence of witnesses, jury bound to have reasonable doubt as to identity of killer or her capacity to form murderous intent – Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, applied; The Queen v O’Connor [1980] HCA 17; (1980) 146 CLR 64, referred to; Cutter v R [1997] HCA 7; (1997) 143 ALR 498, distinguished.

Benson v The Queen [2014] VSCA 51 (28 March 2014)

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).