Category Archives: s. 097

The Queen v F J L [2014] VSCA 57 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/57.html

CRIMINAL LAW – Director’s application – Leave to appeal against permanent stay of 12 counts of indecent assault on children under 16 years of age – Most recent alleged offending occurred 32 years prior to trial – Whether a case of ‘simple’ delay giving rise to mere presumptive prejudice – Whether possible to address prejudice to accused through procedural steps short of a permanent stay – Gross delay giving rise to specific forensic disadvantage – Possible to address some specific disadvantages through procedural steps – Leave to appeal granted – Appeal allowed in part.

KJS v R [2014] NSWCCA 27 (18 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/27.html

CRIMINAL LAW – conviction appeal – historical sexual offences – aggravated indecent assault and aggravated sexual intercourse without consent – admissibility of other uncharged sexual acts as context evidence – whether such evidence “tendency evidence” – whether probative value of evidence outweighed by its unfair prejudice – need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences – evidence necessary to explain failure of victim to complain at the time of the offending – reasonable assumption that jury would follow judicial directions – evidence of uncharged acts admissible as context evidence.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/4.html

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 17) and 13 related matters [2014] NSWSC 55 (13 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/55.html

TRADE PRACTICES – misleading or deceptive conduct – the operation of the Trade Practices Act 1974 (Cth) (TPA) ss 51A, 52 and 59(2) – the operation of the Fair Trading Act 1987 (NSW) (FTA) ss 41, 42 and s 54(2) – the relevance of a disclaimer in determining whether conduct was misleading or deceptive – the circumstances in which silence can be misleading or deceptive – the making of implied representations of fact – whether, on the facts of this case, the alleged implied representations were drawn by the plaintiffs – what constitutes a future matter within the meaning of the TPA s 51A and the FTA s 41 – the burden of proof under the TPA s 51A and the FTA s 41 – whether the defendant had reasonable grounds for the representations concerning a future matter within the meaning of the TPA s 51A and the FTA s 41 – the limitation period on a claim for personal injury for misleading or deceptive conduct – the application of the TPA ss 82(2) and 87E
TRADE PRACTICES – unconscionability – the operation of the TPA ss 51AC – the effect of the TPA s 51AA(2) on a claim under s 51AA in circumstances where a claim is made under s 51AC – what constitutes unconscionable conduct within the meaning of the TPA s 51AC – the operation of the Franchising Code of Conduct cl 16(1) – the limitation period on a claim for unconscionable conduct – the application of the TPA s 87F
TORTS – negligent misstatement – whether the defendant had a duty to take reasonable care in making representations to potential franchisees – whether the defendant had a duty of care not to express opinions unless it had reasonable grounds for doing so – whether the defendant breached that duty of care
TORTS – negligent infliction of psychiatric injury – whether the defendant owed a duty of care to prevent mental illness flowing from economic loss in circumstances where the parties were in a commercial relationship – whether, in the circumstances of the case, the defendant ought to have reasonably foreseen that a person of normal fortitude would suffer a recognised psychiatric illness – whether the defendant breached that duty of care – whether the relevant plaintiffs suffered a psychiatric illness – whether that illness was caused by the defendant’s conduct
LIMITATION OF ACTIONS – whether the claims for personal injuries are statute barred by operation of the Limitation Act 1969 (NSW) s 50C – whether an order should be made under the Civil Procedure Act 2005 (NSW) s 65(3)
EMPLOYMENT LAW – the operation of the Industrial Relations Act 1996 s 106 (IR Act) – whether the relevant plaintiffs performed work in an industry – whether the contracts or arrangements between the parties were ones whereby that work was performed – whether the contracts or arrangements were “unfair, harsh or unconscionable” within the meaning of the IR Act s 106 – whether there was a “services contract”, within the meaning of the Independent Contractors Act 2006 (Cth) s 5 between the relevant plaintiffs and the defendant – whether the relevant plaintiffs entered into a contract for services as independent contractors by which they performed work
CONTRACTS – the operation of the Contracts Review Act 1980 (NSW) s 7
PRACTICE AND PROCEDURE – the pleading of multiple express and implied representations – the conduct of complex litigation generally
EVIDENCE – the difficulties of proof encountered in a case based on oral representations – the preparation of affidavits and pleadings – whether evidence from one plaintiff can corroborate evidence given by other plaintiffs – the operation of the rule from Browne v Dunn (1893) 6 R 67 (HL) in complex proceedings – the credit of witnesses generally

R v Schofield [2013] ACTSC 247 (21 November 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/247.html

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

DPP v Campbell & Ors (Ruling No 1) [2013] VSC 665 (25 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/665.html

CRIMINAL LAW – Evidence – Tendency – Accused charged with accessory after fact to murder – Co-accused charged with murder – Accused relying on defence of duress by co-accused – Whether evidence proposed to be adduced by accused concerning previous behaviour of co-accused admissible – Evidence Act 2008 (Vic) s 97.

R v Hadchiti [2013] NSWSC 1726 (30 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1726.html

CRIMINAL LAW – evidence – tendency – tendency notice – evidence in relation to victim’s character, reputation and conduct – tendency to engage in violent conduct towards females, use of weapons and to carry knife on person – evidence sought to be relied on in relation to whether accused was acting in self defence when fatal wound was inflicted – whether evidence has significant probative value – whether evidence admissible

R v Gittany (No 3) [2013] NSWSC 1670 (13 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1670.html

CRIME – evidence – where accused served notice of intention to call evidence that deceased had a tendency to act in a particular way – call by Crown for production of any statements taken by solicitor for accused from persons identified in notice – whether client legal privilege lost upon service of notice – whether client legal privilege lost upon calling witnesses to give evidence in the case for the accused

Landa v Perpetual Trustees Victoria [2013] NSWSC 1685 (1 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1685.html

AGENCY – where mortgage broker misappropriated loan monies – whether mortgage broker acting with actual or apparent authority of mortgagee – actual or apparent authority – principles to be applied

CONTRACTS – unjust – where mortgage broker misappropriated loan monies – whether Contracts Review Act 1980 (NSW) excluded – whether contract entered into in the course of “trade, business or profession” – meaning of “business” – question of fact – principles to be applied

VERSI Peter v R [2013] NSWCCA 206 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/206.html

CRIMINAL LAW – appeal against conviction – historical child sexual assault – verdict not unreasonable – errors in trial transcript – corrected by substantial agreement – appellate court not required to listen to transcript

EVIDENCE – tendency and coincidence evidence – confusing directions – coincidental “events” – appropriate coincidental reasoning

CRIMINAL LAW – appeal against sentence – manifestly excessive – whether sentence practices at the time of the offences should be applied

Reeves v The Queen [2013] VSCA 311 (7 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/311.html

CRIMINAL LAW — Appeal — Conviction — Sexual penetration of child under 16, indecent act with child under 16 — Two complainants — Whether evidence crossadmissible — Whether tendency evidence — Whether probative value substantially outweighed any prejudicial effect it might have — Acquittal on two of four counts relating to first complainant — Whether verdicts inconsistent — Appellant cross-examined about whether complainants were lying — Withdrawal and apology by prosecutor — Directions by judge — Jury discharge application refused — Whether miscarriage of justice — Appeal dismissed — Evidence Act 2008 (Vic) ss 97, 101.

EVIDENCE — Tendency evidence — Sexual offences — Evidence of two complainants — Lapse of time between incidents — Whether evidence of one complainant probative of tendency — Whether probative value substantially outweighed any prejudicial effect — R H B v The Queen [2011] VSCA 295; G B F v The Queen [2010] VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.

Winter v R [2013] NSWCCA 231 (18 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/231.html

CRIMINAL LAW – APPEAL – application for extension of time – where delay of more than six years – approach to be taken in determining application for extension of time – necessity for the applicant to adduce evidence which fully explains the delay

CRIMINAL LAW – APPEAL – incompetence of counsel – principles to be applied

CRIMINAL LAW – SENTENCE – where some offences for which appellant convicted had been repealed – approach to be taken in sentencing for such offences – whether sentence manifestly excessive

The Queen v Hinch [2013] VSC 520 (2 October 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/520.html

CONTEMPT – Publication by respondent of article on the internet – Publication contrary to non-publication order to which respondent not a party – Whether publication interfered with order – Whether respondent had sufficient notice of order – Whether public interest defence applicable to such contempt.

CONTEMPT – Whether publication had tendency to prejudice fair trial of pending criminal proceedings – Relevance of delay to trial – Relevance of other prejudicial material relating to the accused – Whether publication justified by a superior public interest.

Richardson v R [2013] NSWCCA 218 (27 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/218.html

CRIMINAL LAW – conviction appeal – admission of evidence for non-propensity purpose – evidence relevant to motive – evidence accompanied by comprehensive direction to jury not to engage in propensity reasoning – no objection taken at trial – the same evidence relied on by defence in its case – whether evidence had to be established beyond reasonable doubt – no miscarriage of justice – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether treatment of corpse after killing relevant to seriousness of offending – whether excessive weight given to treatment of corpse after death – ground of appeal not made out.

GIOURTALIS Angelos v R [2013] NSWCCA 216 (25 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/216.html

CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth pursuant to s 29D and s 7 of the Crimes Act 1914 – whether misdirection in summing up to jury – whether misdirection by the trial judge in relation to mistake, the rule in Browne v Dunn and the taxation of foreign residents.

CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth – whether error from prejudice regarding the admission of tendency and coincidence evidence.

CRIMINAL LAW – appeal – conviction for multiple counts of defrauding and attempting to defraud the Commonwealth – application of proviso in s 6(1) of the Criminal Appeal Act 1912 – whether error by trial judge such as to make it inappropriate to apply s 6(1).

CRIMINAL LAW – appeal – sentencing – considerations – whether trial judge failed to take into account or give sufficient weight to delay – severity of sentence.

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 (27 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/272.html

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.

Commissioner of Taxation v Ludekens [2013] FCAFC 100 (29 August 2013)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2013/100.html

TAXATION – Taxation Administration Act 1953 (Cth) – Div 290 – civil penalty regime –whether entity is a promoter of tax exploitation scheme – whether entity has implemented a scheme otherwise than in accordance with its product ruling – time limits on commencement of actions in respect of an entity’s involvement in a tax exploitation scheme

STATUTORY INTERPRETATION – meaning of “scheme benefit” – whether there is requirement of alternative postulate – meaning of “markets the scheme or otherwise encourages the growth of the scheme or interest in it” – meaning of consideration received “in respect of” marketing or encouragement

P C R v The Queen [2013] VSCA 224 (28 August 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/224.html

CRIMINAL LAW – Sexual offences – Commencement of a hearing in a criminal proceeding for the purposes of cl 12 of Schedule 4 of the Criminal Procedure Act 2009 (Vic) – Recording of a telephone conversation is not an interception of a communication passing over a telecommunications system within the meaning of s 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) – Evidence admitted as admissions not tendency evidence – Evidence of uncharged acts against the complainant has significant probative effect – Section 97(1)(b) of the Evidence Act 2008 (Vic) – Conversation constituted an admission – A verdict of attempted sexual penetration unsafe as evidence did not disclose whether the attempt was to penetrate the complainant’s anus or vagina – Offender re-sentenced.

R v Patricia Anne Gallagher [2013] NSWSC 1102 (19 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1102.html

RIMINAL LAW – Murder – special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 – where Crown relied upon circumstantial case – necessity to consider the entirety of the circumstantial case in determining whether the accused’s commission of the alleged offence was proved beyond reasonable doubt

EVIDENCE – admissions – exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair – where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment – where accused had been interviewed by the police on two occasions and had denied killing the deceased – where police subsequently implemented undercover operation – where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence – where police continued with the undercover operation in those circumstances – where accused initially repeatedly denied responsibility for the deceased’s death to undercover operative – where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased – whether the actions of the police in implementing and continuing the undercover operation were improper – whether the circumstances in which the admissions were made were otherwise improper – whether the evidence of the accused’s admissions should be excluded as having been improperly obtained – alternatively whether evidence of the accused’s admissions should be excluded on the basis of unfairness

EVIDENCE – admissions – where evidence that the accused had allegedly admitted to the killing of the deceased – where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made – whether the evidence of the admission should be excluded on the basis of unfairness.

EVIDENCE – lies – where Crown relied upon lies told by the accused as evidence of consciousness of guilt – whether the statements made by the accused were in fact lies – whether the lies were deliberate – whether the lies were evidence of consciousness of guilt

EVIDENCE – tendency evidence – whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively

BJS v R [2013] NSWCCA 123 (24 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/123.html

CRIMINAL LAW – conviction appeal – Appellant a former Catholic priest – 11 counts of indecently assaulting four different victims over a five year period – whether all counts should have been tried together – whether trial judge erred in permitting Crown to rely upon tendency evidence – whether evidence of hypnosis should have been allowed in relation to one of the complainants and a witness – whether cross-examination should have been permitted under the Criminal Procedure Act 1986 (Sexual Assault Communications Privilege) – whether evidence of psychiatrist retained by Appellant was properly rejected – whether jury should have been discharged after wrongful admission of evidence – whether trial judge incorrectly directed jury as to unanimous verdict – conviction appeal dismissed – SENTENCE APPEAL – whether Appellant subjected to extra curial punishment and its relevance – threats made against Appellant’s wife and children – whether proper regard taken of Appellant’s state of health – relevance of conditions under which sentence being served – relevance of Appellant’s age – relevance of Appellant’s previous good character – whether proper regard had to sentencing practices at time of the offending – sentence not manifestly excessive – appeal dismissed.

Semaan v The Queen [2013] VSCA 134 (3 June 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/134.html

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.

Colquhoun v R (No 1) [2013] NSWCCA 190 (22 August 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/190.html

CRIMINAL LAW – indecent assault of person under the age of 16 – evidence showing sexual interest of accused in complainant – requirement for use as tendency evidence not satisfied – jury invited to use evidence for impermissible tendency reasoning – convictions quashed

CRIMINAL LAW – indecent assault of person under the age of 16 – adequacy of directions to jury concerning a motive to lie on the part of the complainant and his mother

R v JSK [2013] ACTSC 147 (2 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/147.html

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown Application to adduce – whether proposed tendency evidence of significant probative value – whether proposed tendency evidence too ambiguous to be of significant probative value – whether proposed tendency evidence admissible for another purpose – application granted in part

ZHU v R [2013] NSWCCA 163 (9 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/163.html

CRIMINAL LAW – conviction appeal – three counts of sexual intercourse without consent and two counts of sexual assault involving three separate victims – whether course of events at trial gave rise to a miscarriage of justice because of the failure to order separate trials – whether s97 Evidence Act 1995 (NSW) was correctly applied – whether tendency evidence gave rise to a miscarriage of justice – appellant a practitioner of traditional Chinese medicine – whether jury should have been directed as to “for proper medical purposes” with respect to offence contrary to s61H(1) Crimes Act 1900 – significance of jury question – whether evidence gave rise to need for such a direction – whether direction required even though appellant had not raised the issue “for proper medical purposes” – whether jury properly directed as to appellant’s good character – appeal dismissed.

Cartwright v Bluescope Steel Ltd [2013] NSWSC 900 (9 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/900.html

TORTS “ NEGLIGENCE “ personal injury “ motor vehicle accident “ liability of principals to independent contractors “ cause of accident “ load shift “ whether load shift attributable to negligent packing or negligent instructions “ principal and employer owed duty to plaintiff “ whether principals duty limited to exercising reasonable care in designing system for transporting steel coils “ principal maintained control over system of packing “ principal not entitled to relieve itself of its duty to plaintiff by relying on separate duty employer owed to plaintiff “ principals duty included proper design of the loading and packing system as well as maintaining efficacy of system when circumstances changed “ principal in breach of duty “ employer also in breach of duty “ plaintiff not contributorily negligent “ apportionment of responsibility

Doolan v R [2013] NSWCCA 145 (3 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/145.html

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

Galea v Farrugia [2013] NSWCA 164 (7 June 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/164.html

CONTRACT – agreement to supply land fill – whether appellants proved that fill supplied by respondents was contaminated with asbestos

EVIDENCE – tendency evidence – s 97 Evidence Act 1995 – whether respondents supplied contaminated land fill to appellants’ property – relevance of evidence of deliveries of contaminated land fill by the respondents to two other properties

R v Stanley [2013] NSWCCA 124 (28 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/124.html

CRIMINAL LAW -Crown appeal-order for trial by judge alone- whether discretion miscarried;
CROWN APPEAL- order for trial by judge alone- racial prejudice- order made without evidence- jury prejudice- procedures available to identify and excuse prejudiced jurors- directions to jurors to promote impartial decisions;
APPLICATION FOR ORDER FOR TRIAL BY JUDGE ALONE – apprehension of prejudice from facts of case- whether order justified- whether expert evidence complex- whether complexity of evidence justified order.

R v XY [2013] NSWCCA 121 (22 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/121.html

APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 – whether material difference between approaches

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence

EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)

EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)

STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts

R v King [2013] ACTCA 23 (20 May 2013)

http://www.austlii.edu.au/au/cases/act/ACTCA/2013/23.html

EVIDENCE – similar facts – sexual offences –tendency and coincidence evidence – whether relevant to the issue of abuse of position of authority or trust

CRIMINAL LAW – engaging in sexual intercourse without consent – committing acts of indecency without consent – consent alleged to have been negated by abuse of position of authority or trust – abuse in the context of s 92P(1)(h) (now 67(1)(h)) of the Crimes Act 1900

APPEAL – appeal from order for separate trials following ruling against the admission of tendency and coincidence evidence

WORDS AND PHRASES – “abuse of position of authority … or … trust”

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd; Aristocrat Technologies Australia Pty Ltd v Allam [2013] HCA 21 (10 May 2013)

http://www.austlii.edu.au/au/cases/cth/HCA/2013/21.html

Evidence – Tendency rule – Section 97(1) of Evidence Act 1995 (Cth) – Failure to comply with tendency rule where evidence not characterised as tendency evidence at first instance – Applicants alleged that respondents refurbished and sold machines that incorporated pirated copies of material in which applicants held copyright, thereby infringing ss 36 and 38 of Copyright Act 1968 (Cth) – Email communications of respondents relied upon by primary judge to prove that respondents had knowledge of infringing conduct – Full Court of Federal Court held that email communications relied upon by primary judge to establish tendency to engage in infringing conduct without compliance with s 97(1) of Evidence Act 1995 (Cth) – Whether open to Full Court to conclude that email communications were relied upon by primary judge to establish tendency.

Words and phrases – “tendency evidence”.

Copyright Act 1968 (Cth), ss 36, 38.
Evidence Act 1995 (Cth), ss 94(1), 95(1), 97(1), 136.

R v Sean Lee King [2013] NSWSC 448 (4 April 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/448.html

CRIMINAL LAW – murder – application for a trial before a judge alone – whether in the interests of justice to grant the order sought – whether issue of intention was one which required the application of community standards – whether the nature and extent of pre-trial publicity was such as to render it in the interests of justice that order be granted for a trial by judge alone – whether potential saving to the community is a relevant factor – where appropriate directions will be given to the jury – where it is assumed that such directions will be applied – application for judge alone trial dismissed

Steadman v R (No 1) [2013] NSWCCA 55 (13 March 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCCA/2013/55.html

EVIDENCE – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury

Levy v Bablis [2013] NSWCA 28 (25 February 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/28.html

APPEAL – only ground that further evidence available justifying new trial – exercise of discretionary power under s 75A(7) of Supreme Court Act 1970 – most of further evidence as to matters occurring before trial – importance of principle of finality – whether “special grounds” – whether appellant could have led evidence as to those matters at trial by exercise of reasonable diligence – whether probable that further evidence would have resulted in a different outcome at trial – further evidence considered separately and together not justify conclusion that outcome would have been different – interests of justice not require order for new trial on basis that a “substantial wrong or miscarriage” has been occasioned

Commissioner of Taxation of the Commonwealth of Australia v Ludekens [2013] FCA 142 (4 March 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/142.html

TAXATION – Taxation Administration Act 1953 (Cth) – Division 290 – Civil penalty regime –Whether entity is a promoter of tax exploitation scheme – Whether entity has implemented a scheme otherwise than in accordance with its product ruling – Time limits on commencement of actions in respect of an entity’s involvement in a tax exploitation scheme
STATUTORY INTERPRETATION – Meaning of ‘markets the scheme or otherwise encourages the growth of the scheme or interest in it’ – Meaning of consideration received ‘in respect of’ marketing or encouragement

R v Edwin [2013] ACTSC 6 (4 February 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/6.html

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Crown application to adduce – Evidence capable of establishing tendencies – Probative value of the tendency evidence substantially outweighs its prejudicial value – Trial will not be excessively complex despite multiple complainants and counts where tendencies limited – Counts that do not support the tendencies are severable – Application conditionally allowed

CRIMINAL LAW – EVIDENCE – Coincidence Evidence – Crown application to adduce –Probative value of evidence does not substantially outweigh prejudice – Value of evidence as coincidence evidence not as substantial as value as tendency evidence – Application refused

Priest v West & Anor [2012] VSCA 327 (20 December 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/327.html

ADMINISTRATIVE LAW – Coroner – inquest into the death of a child – Reportable death – Obligation to find, if possible, the cause of death and circumstances in which the death occurred – Coroner excluded statements about the circumstances of the deaths of five other children – Propensity evidence – Whether statements were relevant considerations that the Coroner was obliged to take into account – Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 – Section 67(1)(b) and s 67(1)(c) of the Coroners Act 2008 (Vic).

CORONER – Whether witness should be compelled to give evidence under s 57(4) of the Coroners Act 2008 (Vic) – Reliability of the evidence relevant to whether the ‘interests of justice’ required that witness give evidence – Inquisitorial character of coronial inquest – Weinstein v Medical Practitioners Board of Victoria [2008] VSCA 193; (2008) 21 VR 29 – Distinction between ‘salient facts’ and mere ‘pieces of evidence’ – Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45; (2008) 19 VR 422.

STATUTORY INTERPRETATION – Section 57(3) of the Coroners Court Act 2008 (Vic) – Whether Coroner obliged to inform witness that he would be given a certificate of immunity if he willingly gave evidence – Appeal allowed.

Australian Competition and Consumer Commission v Air New Zealand Limited (No 1) [2012] FCA 1355 (30 November 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1355.html

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 [1999] NSWSC 539; (1999) 47 NSWLR 309 should be followed