Category Archives: s. 072

Sandy on behalf of the Yugara People v State of Queensland (No 2) [2015] FCA 15 (27 January 2015)

NATIVE TITLE – Whether native title exists in relation to any land or waters of Brisbane and surrounding area – Whether normative system of traditional laws and customs existed in claim area at sovereignty – Extent of society defined by laws then acknowledged and customs then observed – Relevance of lingual divisions – Tribes and claims within broader society – Content of laws and customs with respect to rights and interests in land and waters – Whether laws acknowledged and customs observed without substantial interruption since sovereignty – Whether members of claimant groups were descended from original peoples who possessed relevant rights and interests in relation to land and waters.

Jacob v State of Western Australia [2014] FCA 1106 (14 October 2014)

NATIVE TITLE – application pursuant to s 84(5) of the Native Act 1993 (Cth) for joinder as respondents to a native title determination application – whether it was in the interests of justice for the applicants to be joined as respondents – whether the interests of the joinder applicants would be affected by a determination of native title over the claim area – whether the applicants have established a prima facie case

Held: it was in the interests of justice for the three applicants to be joined as respondents

Framlingham Aboriginal Trust v McGuiness and Chatfield [2014] VSC 241 (23 May 2014)

SUMMARY RECOVERY OF LAND — Application under Order 53 — Plaintiff an Aboriginal Trust established under the Aboriginal Land Act 1970 — Conflict within the Aboriginal community — Related oppression proceedings commenced against members of the Trust in control of the committee of management — Defendants occupying property without the licence, consent or permission of the committee of management of the Trust — Whether committee of management of the plaintiff authorised the commencement of proceedings — Whether Aboriginal customs lying behind the decisions of committee of management arguably give rise to a licence or consent of the plaintiff pending a decision of the committee of management —Whether any decision of the committee of management to commence proceedings may have been made in bad faith — Whether the existence of oppression proceedings that might change the constitution of the committee might affect the right of the defendants to occupy the land— Whether a clear case where there is no question to try — Whether possible to resolve factual dispute readily and fairly.

PRACTICE AND PROCEDURE — Order 53 of the Supreme Court (General Civil Procedure) Rules 2005 — Applicable principles.

[27] The evidence may be admissible under s 72 of the Evidence Act 2008 (Vic). In any event, it was tendered without objection.

Evans v Powell [2012] NSWSC 1384 (19 November 2012)

APPEAL – appeal against Local Court decision against dismissal of five court attendance notices – appeal upheld – failure to give adequate reasons – whether his Honour erred in excluding disputed evidence – whether his Honour erred in dismissing 5 court attendance notices – residential centres – power of entry – construction of s 25 of the Youth and Community Services Act 1973 – exclusion of the disputed evidence – orders – costs

EVIDENCE – admissibility – discretionary exclusion of evidence

Regina v Lawrence Holt [2001] NSWSC 232 (30 March 2001)

8 The foregoing general positions of, respectively, the Crown and the accused having been established, application was made for a series of hearings on the voir dire to the end of testing the admissibility in the Crown case at trial of various pieces of evidence. Voir dire hearings were granted accordingly, and all of them were dealt with by way of documentary evidence. In all, sixteen separate such hearings were conducted. Eleven of those hearings concerned evidence which the Crown seeks to have admitted as tendency evidence; a further four hearings concerned hearsay evidence which the Crown seeks to have admitted as relationship evidence; and one hearing concerned admissions made by the accused to investigating police.

Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd [2011] FCA 246 (18 March 2011)

INTELLECTUAL PROPERTY – copyright – whether respondent infringed applicants’ copyright in plans and houses containing an “alfresco quadrant” – subsistence and ownership of copyright conceded – whether the alfresco quadrant a substantial part of the applicants’ works – whether the alfresco quadrant was reproduced in any of the respondent’s works – whether the respondent’s works were independently created – differences in detail and dimension, but overall arrangement of spaces in applicants’ and respondent’s alfresco quadrants was substantially similar – respondent’s designers had access to, and made use of and/or copied, the applicants’ works – infringement claims established.

Evidence Act 1995 (Cth) s 72

Austereo Pty Ltd v DMG Radio (Australia) Pty Ltd [2004] FCA 968 (28 July 2004)

[2004] FCA 968
TRADE MARKS – “sounds different” mark in respect of radio broadcasting services – whether inherently adapted to distinguish – whether adapted to some extent – descriptive words

TRADE MARKS – no use before priority date – use to which evidence of subsequent use can properly be put

Evidence Act 1995 (Cth) s 72, s 78, s 138

Athens & Anor v Randwick City Council [2005] NSWCA 317 (16 September 2005)

[2005] NSWCA 317


JUDGMENTS AND ORDERS – Construction of court orders – Use of extrinsic material – Need for certainty – Relevance of prejudice where alleged uncertainty minor – Applicability of criminal procedure to contempt proceedings

EVIDENCE – Exclusion of evidence improperly obtained – Conversations with persons encountered on premises during execution of search warrant – Whether improperly obtained – Whether inadmissible as hearsay – Whether admissible as statement of intention – Cross-examination of officer of company on return of subpoena to company – Whether part of evidence in the proceedings.

Evidence Act 1995  ss.64, 72, 138

R v Serratore [1999] NSWCCA 377 (26 November 1999)

[1999] NSWCCA 377

CRIMINAL LAW – murder – appeal against conviction – circumstantial evidence case – whether certain specified intermediate facts essential – trial judge’s directions erroneous but favourable to accused – open to jury to convict on evidence, but not in accordance with trial judge’s directions – irregularity such as to constitute miscarriage of justice – appeal allowed – new trial or judgment of acquittal

CRIMINAL LAW – murder – indictment – single count – crown case put on alternative basis

EVIDENCE – murder trial – hearsay – evidence of relationship between accused and deceased.

Evidence Act, ss 55, 56, 59, 65, 66, 69, 72, 108, 135, 136, 137, 165;

R v Yeo [2005] NSWCCA 49 (23 February 2005)

[2005] NSWCCA 49


joint trials

whether separation wrongly refused

nature of prejudice

retrial following quashing on appeal

whether Crown significantly changed case

whether bound by way first trial conducted

whether abuse of process

conviction upheld


significance of bail conditions

whether double punishment

appeal dismissed

Conway v The Queen [2000] FCA 461 (11 April 2000)

[2000] FCA 461

Criminal Law – murder – appeal against conviction – admissibility of evidence – evidence of relationship – whether evidence constituted propensity evidence that should have been excluded – meaning and scope of “propensity evidence” – whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule – whether deceased’s oral statements made shortly after the asserted fact – whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication – whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable – whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule – whether directions to the jury on the use of relationship evidence adequate.

Criminal Law – murder – appeal against conviction – accomplices – warning – need for under ss 164 and 165 of the  Evidence Act 1995  (Cth) – whether adequate warning given in the circumstances of the case – whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices – whether incorrect identification led to miscarriage of justice.

Criminal Law – murder – appeal against conviction – whether sufficient direction on

co-conspirator rule – whether trial judge’s intervention during cross-examination of

co-accused caused trial to miscarry – whether evidence of an out of court statement by a

co-accused wrongly rejected – whether proper directions given on evidence of good character – whether question arose as to an accused’s fitness to stand trial – whether trial judge failed to properly direct on accused’s failure to recall certain events – whether trial judge failed to adequately put the defence case of one accused to the jury.

Evidence Act 1995  (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165

R v Nguyen [2008] ACTSC 40 (7 May 2008)

[2008] ACTSC 40

PRE-TRIAL RULING – admissibility of evidence – hearsay – hearsay exception –  Evidence Act 1995  (Cth) – evidence of received telephone calls – contemporaneous representations – state of mind evidence – admission for a non hearsay purpose – probable and reliable representation test
Evidence Act 1995  (Cth), ss 60, 62, 65(2), 66, 72, 136

Australian Petroleum Pty Ltd v Parnell Transport Industries Pty Ltd & Ors [1998] FCA 1580 (20 November 1998)

[1998] FCA 1580

EVIDENCE – documentary evidence – business records – exception to hearsay – effect provisions creating time limit for objections on admissibility of evidence – whether Pt 4.6 Div 1 of  Evidence Act 1995  (Cth) requires Court not to admit evidence for twenty-one days

Evidence Act 1995  (Cth), ss 26, 47-51, 55, 56, 59, 63, 64, 67, 69, 70-75, 135, 166, 167, 168, 169, 190

Ah-See v Heilpern and Anor [2000] NSWSC 627 (6 July 2000)

[2000] NSWSC 627

EVIDENCE – Criminal Proceedings – admission in official questioning – accused was asked, in an interview which was not electronically recorded, “Do you wish to participate in a line-up.” and answered “No” – Magistrate admitted picture identification evidence after having regard to this q & a when considering objection – Evidence Act subs 115(5) made picture identification evidence inadmissible unless the accused refused to take part in an identification parade – it was contended that the q & a should not have been regarded when ruling on the objection because the q & a were an admission and the conditions for admissibility of evidence of an admission in Crimes Act s 424A (relates to electronic recording) (see now Criminal Procedure Act s 108) had not been complied with – meaning of “admission” in s 424A and significance of definitions of “admission” and “representation” in  Evidence Act 1995  – cognate legislation – held – the q & a evidence of refusal were not evidence of an admission within s 424A – Magistrate was correct in having regard to q & a when ruling on objection to picture identification evidence.

R v Clark [2001] NSWCCA 494 (13 December 2001)

[2001] NSWCCA 494

Criminal Law – Murder – Appeal against conviction – Evidence – Unreliable evidence – Judicial directions to jury – Whether necessity for unreliable evidence warning – Where Crown’s major witness testified under indemnity from prosecution – Where no such warning sought at trial – Whether leave should be granted to argue point – Whether witness was “criminally concerned in the events giving rise to the proceeding” – Criminal Appeal Rules, r 4 – Evidence Act 1995 (NSW) s 165

Criminal Law – Murder – Appeal against conviction – Evidence – “Relationship evidence” – Admissibility – Evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant – Exception to hearsay rule – Whether unfairly prejudicial justifying exclusion –  Evidence Act 1995  (NSW), ss 55(1), 72 and 135-137

Criminal Law – Murder – Appeal against sentence – Whether non-parole period of less than three-quarters of head sentence warranted – Whether appellant’s intellectual/physical difficulties amounted to “special circumstances” – Crimes (Sentencing Procedure) Act 1999, s 44(2) – D