http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/411.html

Opinion evidence – relevance – expert allegedly adopting role of “advocate” – qualifications – whether plaintiff’s case confined to that suggested by his own evidence.

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/70.html

APPEAL – error in process of fact finding – failure to examine all material relevant to central issue – new trial required

CONTRACT – whether transaction loan to appellant or investment in third party company – whether respondents’ case contrary to compelling inference

CONTRACT – post-contractual conduct – letter from respondents’ solicitor to third party – whether letter contained admissions adverse to respondents’ interests

EVIDENCE – whether primary judge entitled to draw Jones v Dunkel inference from failure to call solicitor as witness – client legal privilege – where respondents gave evidence at trial about solicitor’s advice – whether respondents waived privilege by acting inconsistently with maintenance of privilege

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1500.html

PRACTICE AND PROCEDURE – admissibility of evidence – transcripts of examinations conducted pursuant to s 453-5(1)(c) Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where recordings not tendered – where transcripts not authenticated by signature or respondents’ testimony – application of s 48(1)(c) of the Evidence Act 1995 (Cth) – whether transcripts satisfy hearsay exception in s 81 of the Evidence Act 1995 (Cth) – whether transcripts contain admissions

CORPORATIONS – whether improper use of position within the meaning of s 265-10 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where management agreement existed with an external company – where that external company controlled the Corporation’s bank accounts – where minority of directors did not approve of management agreement – where chairman director sought to appoint a chief executive officer sympathetic to minority position on favourable terms without Board approval – where chairman director and new chief executive officer attempted to access bank accounts of Corporation – whether two other directors who attended the bank but did not participate were “involved in” these contraventions within the meaning of s 694-55 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth)

CORPORATIONS – disqualification orders under s 279-15 Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – where contravening respondents attempted to circumvent Board process and impose minority views – where general deterrence an important consideration as acts jeopardised Corporation providing essential services – where specific deterrence less important as respondents unlikely to serve as directors or officers again – where no intention to misappropriate funds – where no evidence of bad character or similar previous behaviour

COSTS – where applicant successful against two respondents – where only one respondent appeared – where respondent increased cost of hearing by cross-examining many of the witnesses – costs sought against that respondent

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1441.html

COMPETITION – s 45 of the Competition and Consumer Act 2010 (Cth) – thoroughbred horses – Australian Stud Book – thoroughbred horse racing – artificial insemination – restricting or prohibiting the entry in the Australian Stud Book of thoroughbred horses bred by artificial insemination – restricting or prohibiting the entry into races of thoroughbred horses bred by artificial insemination –whether contract, arrangement or understanding – aggregation of provisions – whether provisions have or likely to have effect of substantially lessening competition in a market – thoroughbred breeding market – thoroughbred acquisition market – scope of market – whether thoroughbreds bred by natural cover or by artificial insemination sufficiently close substitutes – appropriate counterfactual – rules of sport

TRADE AND COMMERCE – restraint of trade – reasonableness of restraint when imposed – relevance of later events – whether later events foreseeable

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/531.html

[EQUITY] – interest – priorities – whether acknowledgement is effective to prove that a debt was owing – whether acknowledgment created an enforceable promise to give security over the land in the event that the debt was not paid by the specified date – whether first cross-defendant is entitled to be subrogated to the rights of the mortgagee bank – whether cross-claimant’s equitable interest should be postponed to the equitable interest of the first cross-defendant.

[PROCEDURE] – whether orders made on 3 and 21 June 2011 be set aside pursuant to UCPR r 36.15.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/177.html

Evidence – expert report – relevance of expert reports to issues in the proceedings – proof of assumption rule – whether underlying assumptions admissible as part of business records or as admissions

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1408.html

INDUSTRIAL LAW – unlawful industrial action by more than 1300 respondents – some represented – some not – breach of Fair Work Act 2009 (Cth) (FW Act) and Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act) – purpose of industrial action – motivation of respondents – industrial motivation – liability – liability admitted by represented respondents – agreement on remedy and penalty – appropriate penalty to be determined by the Court – whether it is appropriate to make declarations – analysis of transitional provisions of the FW Act – differences between an agreement-based transitional instructions, Workplace Relations Act instruments and transitional instruments – meaning of industrially-motivated in the BCII Act – definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (a) of the definition of ‘industrially-motivated’ in the BCII Act – operation and construction of para (d) of the definition of ‘industrially-motivated’ in the BCII Act – meaning of motivation – disruption to the performance of work for the purpose of industrial action

PRACTICE AND PROCEDURE – respondents who have not entered an appearance – former Federal Court Rules O 32 r 2(1)(d) – Court required to consider merits of case and make determination on balance of probabilities – Court entitled to assume correctness of matters upon which the applicant bears the onus – Federal Court Rules 2011 r 1.04 – whether proof of service on absent respondents required before affidavits can be read – where service was not effected personally – leave required to read affidavits without service – where respondents had notice of proceedings and consequences

EVIDENCE – reliance on inference – proof of any fact on the balance of probabilities from which the Court infers a further fact – inferences from primary or intermediate fact – circumstances to be taken into account when drawing an inference – failure to deny or explain facts – admissions made by agents of the unrepresented respondents – establishing liability against unrepresented respondents – unrepresented respondents aware of proceeding and consequences – liability established

Evidence Act 1995 (Cth) ss 81, 87

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1086.html

TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results page in response to search queries – whether provider of internet search engine engaged in conduct that was misleading or deceptive or likely to mislead or deceive by failing to adequately distinguish between advertisements and organic search results – consideration of expression “sponsored link” – whether provider of internet search engine made implied representations that sponsored links were not advertisements – whether provider of internet search engine made implied representations that sponsored links were organic search results – whether provider of internet search engine made implied representations that position of sponsored links on search results page was the result of their relative relevance to search queries as determined by the search engine – consideration of layout of search results page – consideration of relevant class of consumer – consideration of impact on ordinary and reasonable members of relevant class of consumer

TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where advertisers sought to promote their goods or services by means of sponsored links on search results pages – where headline of sponsored link replicated third party’s business name, trade mark or website address – whether advertiser made implied representations of association or affiliation – consideration of relevant class of consumer – consideration of impact of sponsored links on ordinary and reasonable members of relevant class of consumer – whether representations conveyed were misleading or deceptive or likely to mislead or deceive – whether search engine provider also made implied representations of association or affiliation by publishing sponsored links or by adopting or endorsing representations conveyed – significance of “keyword insertion” when used to generate headline which replicated terms of search query

TRADE PRACTICES – misleading and deceptive conduct – on-line advertising – where provider of internet search engine published advertisements in the form of “sponsored links” displayed on search results pages in response to search queries – where sponsored links conveyed misleading and deceptive representations – whether search engine provider had a defence under s 85(3) of the Trade Practices Act 1974 (Cth) (the Act) – whether advertisements in the form of sponsored links were advertisements received by the search engine provider in the ordinary course of business – whether search engine provider knew or had reason to suspect that publication of advertisement would amount to contravention of s 52 of the Act – whether search engine provider could discharge onus of proof without showing that it took reasonable precautions or exercised reasonable diligence to avoid such contravention

Evidence Act 1995 (Cth) ss 81, 88 and 135

http://www.austlii.edu.au/au/cases/cth/FCA/2011/734.html

TRADE PRACTICES — Action for misleading or deceptive conduct in contravention of s 56 of the Fair Trading Act 1987 (SA) (‘the Act’) — where plaintiff and first defendant formed second defendant company for purpose of acquisition and operation of marina business — where plaintiff and first defendant in personal relationship —where first defendant said to have made oral representations which induced plaintiff to enter into the venture including representation that both parties would contribute equally to funding of business — where plaintiff made substantially greater financial contribution to the company — where plaintiff seeks damages or compensation pursuant to ss 84 and 85 of the Act — whether representations were in trade or commerce — whether representations were representations as to future matters for purpose of s 54 of the Act — whether plaintiff entitled to recover all of her contributions

CORPORATIONS —claim by plaintiff for equalisation of contributions made to company under s 233 of the Corporations Act 2001 (Cth) on basis of first defendant’s oppressive conduct under s 232 — where plaintiff said failure to make equal contributions was oppressive conduct — whether failure to meet a pre-incorporation understanding between incorporators of company is in conduct of a company’s affairs for purpose of s 232 — whether even if failure to make contributions was in conduct of a company’s affairs an order for equalisation of contributions would be appropriate under s 233 — where other forms of oppressive conduct might be made out but would not lead to relief sought

EQUITY — where plaintiff alleged existence of fiduciary relationship between plaintiff and first defendant because of proposed joint venture — no fiduciary relationship between incorporators of company

HELD: The defendant had engaged in misleading and deceptive conduct contrary to s 56 of the Act and the plaintiff was entitled to damages in the amount of all of her contributions to the company with interest. The plaintiff did not succeed in the oppressive conduct case or the fiduciary duty case.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/172.html

EVIDENCE – Evidence Act 1995 – hearsay and opinion rules – whether admissions in ERISP made with authority

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2010/2.html

EVIDENCE – admissibility of interview with police – conducted while appellant intoxicated – no caution administered – discretion to exclude illegally obtained evidence

CRIMINAL LAW – reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary emergency – unavailable to appellant – appellant may have taken steps to obviate threat

Evidence Act 1995 (Cth) ss 60, 81, 84, 138, 191

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1140.html

PROCEDURE
civil
documents
affidavits
application to tender affidavit
whether statements constitute admissions
relevance
par 68 to the end of the affidavit rejected

Evidence Act 1995 s 55, s 59, s 81

http://www.austlii.edu.au/au/cases/cth/FCA/2009/1586.html

CORPORATIONS – continuous disclosure – obligation to disclose information to ASX under Chapter 6CA Corporations Act 2001 (Cth) – relationship between continuous disclosure provisions of ASX Listing Rules and Corporations Act – agreements contemplating execution of fuller and more detailed agreements – mining project contingent upon completion of definitive feasibility study – notification to ASX in purported compliance with continuous disclosure provisions under s 674 – asserted binding legal effect of agreements – whether information disclosed by listed disclosing entity as to legal effect of agreements was incorrect or unreasonably based – whether entity ought reasonably to have come into possession of different information as to legal effect of agreements – relevance of subjective belief or opinion as to legal effect – whether opinion as to legal effect honestly held – whether legal effect of agreements as asserted by plaintiff was information that was not generally available for the purposes of s 674(2) – whether entity received legal advice as to effect of agreements and disclosure obligations – ex ante and ex post consideration of materiality for purposes of s 674(2) – correct approach – whether contravention of s 674(2A) by director allegedly involved in entity’s alleged contravention of s 674(2)

CORPORATIONS – misleading or deceptive conduct under s 1041H – public disclosures made as to the binding legal effect of agreements – whether conduct in relation to a financial product or a financial service – relevance of belief or opinion – relevance of context at the time disclosures were made to market – whether disclosures were misleading or deceptive

CORPORATIONS – director’s duties – whether director breached duty to exercise reasonable care and diligence required by s 180(1) – whether disclosure about legal effect of agreements was honest and reasonable – legal advice obtained consistent with belief.

EVIDENCE – allegations of dishonesty no reasonable evidentiary basis for such allegations

EVIDENCE – standard of proof – Briginshaw standard – prescription of civil standard of proof in a civil penalty proceeding by s 1332 of the Corporations Act – prescription of balance of probabilities as standard of proof in a civil proceeding by s 140 Evidence Act 1995

EVIDENCE – applicability of rule in Jones v Dunkel to civil penalty proceedings – rule in Browne v Dunn – consequences of failure to comply with rule in Browne v Dunn

EVIDENCE – admissibility of transcripts of examinations under s 19 Australian Securities and Investments Commission Act 2001 – whether transcripts contain admissions

EVIDENCE – relevance of expert opinion of statisticians, stockbrokers and analysts in determining contraventions of continuous disclosure provisions

WORDS AND PHRASES – “information”, “aware”, “not generally available”,

Evidence Act 1995 (Cth), ss 81, 87(1)(b), 140

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2009/410.html
CORPORATIONS- oppression- numerous instances of oppression by director of companies- remedies- appropriate remedy a compulsory purchase order- valuation of shares. CORPORATIONS- oppression- remedies- compulsory buy-out order- valuation of shares- company’s assets solely land and business- relevance of capital gains tax (CGT) liability when sold- whether CGT deducted from value-whether selling costs to be deducted from gross proceeds. EQUITY- general principles- equitable defences- laches and delay- elements of laches- degree of knowledge of wrongdoing required depends on facts in all the circumstances- applicability of defence to oppression suit. EQUITY- fiduciary duties- directors’ duties to shareholders- when owed to shareholders. REAL PROPERTY- valuation of land- highest and best use- special value irrelevant in prevailing circumstances.

Evidence Act 1995, s 81

http://www.austlii.edu.au/au/cases/cth/FCA/2009/424.html
RULING AS TO ADMISSIBILITY OF STATEMENTS
UNDER SECTION 19 OF THE ASIC ACT

1. ASIC seeks to tender parts of statements of the second defendant, and of Mr Graeme Rowley and Mr Alan Watling, officers of the first defendant at all material times, made upon their respective examinations under s 19 of the Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act). The relevant statements are contained in transcript extracts.
2. The transcripts of Rowley and Watling are sought to be tendered under ss 81 and 87 of the Evidence Act 1995 (Cth) as evidence of admissions made on behalf of the first defendant. Admissions made in the examination of a corporate officer may be used as evidence against the corporation: ACCC v Leahy Petroleum [2004] FCA 1678 at [118]- [124].
3. The transcript of the second defendant is proffered as evidence of an admission against interest as well as an admission made on behalf of the first defendant. ASIC relies for this proposed tender upon ss 81 and 88 of the Evidence Act alternatively s 76 of the ASIC Act.
4. I have been asked to assume for the purposes of this ruling as to admissibility of the transcripts that the statement recorded in each constitutes a relevant admission although it may be that this will be the subject of challenge in due course.

[2008] NSWSC 1247

EVIDENCE – admissibility and relevance – admissions – hearsay statements – whether it is reasonably open to find that the statements were made with the authority of the defendant – whether it is reasonably open to find that statements were made in furtherance of a common purpose of the maker and the defendant – whether discretion against admitting should be exercised – where defendant can remedy position by resort to s 81(2)

Evidence Act 1995, ss 81, 87, 135

[2001] FCA 223

EVIDENCE – admissions – communications by applicants for native title and others to expert anthropologist – recorded in field notes – whether documentation of communications admissible as admissions

EVIDENCE – hearsay – communications by applicants for native title and others to expert anthropologist – recorded in field notes – viva voce and documentary evidence of communications- whether admissible as relevant for a purpose other than proof of the fact intended to be asserted by the representation – whether court should limit the use to be made of the evidence or exclude it – relevance of opportunity for cross-examination

Evidence Act 1995 (Cth), ss 60, 79, 81(1), 82, 135, 136

[2007] FCA 794
TRADE PRACTICES – price-fixing – arrangements or understandings – whether existed between competitors within the Geelong retail petrol market – whether contained provisions for the fixing of retail petrol prices – whether necessary for parties to have commitment or moral obligation – applicant pleaded existence of seven bipartite and one tripartite interlocking arrangements or understandings and that effect was given to them on a number of occasions within a two-year period – relied on oral evidence of some alleged parties to them, circumstantial evidence in the form of data as to times of telephone communications between parties to alleged arrangements or understandings and changes in retail price of petrol, as well as admissions by some alleged parties to arrangements or understandings – whether evidence established existence, and giving effect to, of arrangements or understandings – whether evidence of origins of alleged arrangements or understandings sufficient – whether oral evidence and circumstantial evidence inconsistent – oral evidence not specific as to any particular occasion – circumstantial evidence often inconsistent with oral evidence, and with applicant’s allegations – whether judgment should be given on admissions

EVIDENCE – admissions – whether appropriate to exercise discretion to pronounce judgment based on admissions – whether reason to question correctness of facts admitted or agreed – whether previous representations made in furtherance of common purpose – whether reasonably open to find that representations were made in furtherance of common purpose – existence of common purpose established by evidence other than previous representation itself

WORDS AND PHRASES – “contract”, “arrangement”, “understanding”, “make an arrangement”, “arrive at an understanding”, “provision”

Evidence Act 1995 (Cth) ss 38(1)(c), 50, 57(2), 59(1), 60, 81(1), 83, 87, 87(1)(a), 87(1)(b), 87(1)(c), 87(2), 140

[2001] NSWSC 595

CRIMINAL LAW & PROCEDURE
voir dire
admissibility of evidence

Evidence Act 1995, ss 55, 56, 65, 81, 82, 102, 108, 135, 137, 165.

[2006] NSWSC 648

Criminal law; admissions by accused: s 81 Evidence Act (NSW) 1995; exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act); availability of witness; evidence admissible for non-hearsay purpose; s 136 Evidence Act – Limitation order

DECISION:
I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name “Faheem”.

[2008] NSWSC 657

EVIDENCE – admissibility – hearsay – whether hearsay representation nevertheless admissible as admission by defendant – representation made by individual – whether pursuant to Evidence Act s 87 representation to be taken to be representation of defendant – where individual was company secretary of defendant – whether company secretary may be taken to be “employee” of company – nature of implied authority of company secretary

Evidence Act 1995, ss 81, 87

[2003] NSWCCA 390

Criminal law – appeal against conviction – sentence – voice identification – speech in intercepted telephone calls in Cantonese – police officer hears calls – later identifies voice of speaker from Cantonese speech at interview with police – held evidence rightly admitted – appellant spoken to in Cantonese during interview in which he refused to answer questions – his reply in Cantonese used for voice identification – no impropriety found – vocal sounds not a representation – no legal necessity for recording to make the voice identificaion evidence admissible – no basis for challenge to sentence.

[2001] NSWCCA 414

CRIMINAL APPEAL – joint trial – cut throat defence – record of interview withdrawn by Crown because induced by threat – co-accused uses answers in withdrawn record of interview to cross-examine accused – Evidence Act, s84 – “admission”.

[2005] NSWCCA 291

Appeal by Crown under s5F(3A) of Criminal Appeal Act

rejection of evidence of photograph of accused taken by police

accused a child

whether posing for the photograph amounted to an admission

whether Part 10A of Crimes Act complied with

exercise of discretion under s138, Evidence Act

[2004] NSWCCA 52

appeal against conviction

leave to appeal against sentence

threatening to inflict actual bodily harm by means of an offensive weapon with intent to have sexual intercourse

admission of evidence of flight

directions regarding consciousness of guilt

lies

the proviso to s6(1) of the Criminal Appeal Act 1912

[1999] NSWCCA 189

Criminal law and procedure – evidence within principles in O’Leary v The King – evidence of consciousness of guilt – lies – accessorial liability – whether verdict unreasonable and cannot be supported

[2004] NSWCCA 463

Murder – provocation – whether trial judge’s directions reduced the ‘standard’ for Crown to accused’s disadvantage – Crimes Act 1900 s23(2)(b) – consciousness of guilt – propriety of and necessity for directions when manslaughter an available verdict – life sentence – second conviction for murder of spouse

[2003] NSWCCA 104

CRIMINAL LAW – SENTENCE – knowing concern in importation of heroin – where circumstantial case – where trial judge erred in leaving to jury specific lie as evidence of consciousness of guilt – whether proviso applicable in circumstances of error in trial – whether proviso applicable on circumstantial case

[2006] NSWCCA 60

appeal against conviction

maliciously inflicting grievous bodily harm

assault occasioning actual bodily harm

admission of evidence over objection

statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995

maker of statement unavailable to give evidence

objection taken on grounds of late notice and discretionary factors

no separate objection to content of evidence

whole of statement admitted

whether trial judge erred in admitting statement

- whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement

directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible

hearsay provisions of the Evidence Act

exceptions to the hearsay rule

identification of previous representation

identification of what fact was intended to be asserted by previous representation

relevant evidence

evidence of out of court representation by one person cannot be given by out of court representation of another person

evidence of previous representations inadmissible

effect of admission of inadmissible evidence of previous representation

Criminal Appeal Rules, rule 4

whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal

Criminal Procedure Act s68, s289

appellant waived right to committal hearing

proviso to s6 of the Criminal Appeal Act

admission of the inadmissible evidence would and should have had no significance in verdict

evidence properly admitted proves beyond reasonable doubt guilt of the offence

Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192

[2006] NSWCCA 284

CRIMINAL LAW – appeal against conviction – armed robbery – circumstantial case – evidence of flight – consciousness of guilt – whether error in admitting this evidence – whether error in characterising evidence as flight – other explanations of flight – whether other explanations prejudicial – whether evidence ought to have been led in a modified form – whether jury properly directed as to use of evidence of flight – whether verdict unreasonable – direction in relation to circumstantial evidence – nature of circumstantial evidence available

[2008] NSWSC 1046

EVIDENCE – application for leave to adduce evidence given by a defendant in earlier interlocutory hearing – where evidence to be adduced is an admission of defendant – relevant considerations for granting leave – where some defendants in current proceeding were not parties to earlier proceeding– whether the hearsay and/or opinion rules apply – where admission is tendered against third parties

(NSW) Evidence Act 1995, ss 81(1), 83 (1)

[2000] HCA 28

Criminal Law – Lies – Whether going to credibility or indicating guilt – Direction to jury – Proviso – Circumstances for application in strong Crown case.

Words and phrases – “consciousness of guilt”.

[1961] HCA 5

Negligence – Child injured by defendant’s car – Conversation with defendant prior to accident – Threat of retaliation by child’s father if child injured – Admissibility – Conversation with defendant subsequent to accident – Defendant accused of driving too fast – No reply – Admissibility – Whether wrongful admission of evidence justified new trial – Whether damages awarded excessive – Action for damages – General Rules of the Supreme Court (N.S.W.), O. XXII, r. 15.

[1998] HCA 60

Evidence – Hearsay rule – Previous representation by witness including alleged confession by accused – Whether entire previous representation could be admitted as prior inconsistent statement – Whether report of confession could be used to prove the truth of the alleged confession.

Evidence Act 1995 (NSW), ss 60, 137.

[1999] HCA 13

Criminal law – Conspiracy to murder – Alleged lies told by accused – Lies as corroboration – Direction to jury – Failure to direct that lies could not be used as corroboration of witness where evidence of same witness is used to establish the lie – Other evidence upon which jury could conclude accused was telling lies – No substantial miscarriage of justice – Application of proviso.

[1998] HCA 61

Criminal Law – Evidence – Hearsay – Exception to Hearsay Rule – Complaint of sexual assault – Prior complaint evidence – Whether complaint made when facts “fresh in the memory” of complainant.

Criminal Law – Evidence – Credibility – Exception to Credibility Rule – Whether evidence fabricated – Discretion to admit prior consistent statement – Factors affecting discretion.

Words and Phrases – “fresh in the memory”.

Evidence Act 1995 (NSW), ss 66, 108, 192.

[1993] HCA 63

Criminal Law – Evidence – Sexual offence – Corroboration – Lies by accused – When corroborative of complainant’s evidence – Directions to jury.

[2003] HCA 51

Negligence – Breach of duty – Canola seeds imported from New Zealand – Imported seed also contained weed seeds – Whether reasonably foreseeable that weeds would be declared prohibited plants by Western Australian Government with consequent financial loss to purchasers.

Practice and procedure – Federal Court – Proceedings under Federal Court of Australia Act 1976 (Cth), Pt IVA – Powers of Court to make “declarations of liability” – Interlocutory declaration of liability – Whether available and should have been made.

Evidence – Admissions – Civil proceedings for damages for negligence – Distinction between admission and apology – Availability of admission by party of mixed law and fact.

Appeal – Concession made at trial – Whether issue can be argued for first time on appeal.

Words and phrases – “declarations of liability”.

[1975] HCA 42

Criminal Law – Murder – Case for prosecution dependent on circumstantial evidence – Whether conviction improper unless circumstances inconsistent with any rational conclusion other than guilt.