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.

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/65.html

CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce –

s 97 Evidence Act 2011 (ACT) – whether evidence can prove proposed tendency – evidence lacks significant probative value – application refused

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/59.html

CRIMINAL LAW – EVIDENCE – tendency evidence – application to adduce – s 97 Evidence Act 2011 (ACT) – acts do not establish a tendency – application refused

Evidence Act 2011 (ACT), s 97

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

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

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

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/271.html

CRIMINAL LAW – appeal pursuant to 5F(3A) of the Criminal Appeal Act 1912 – whether error in excluding tendency evidence or context evidence – whether tendency notice defective – appeal allowed by consent – reasons later published

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/176.html

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/1590.html

CRIMINAL LAW – evidence – domestic homicide – evidence of prior domestic violence – relationship evidence – whether tendency evidence – whether significant probative value.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1449.html

CRIMINAL LAW – Evidence – tendency – domestic homicide – murder – application on voir dire to adduce evidence that the accused has a tendency to act in a violent way when he has a disagreement with a person with whom he has or had an intimate relationship – alleged attempt to strangle previous partner’s male colleague – alleged attempt to strangle previous partner – accused caused self harm following dispute with previous partner – similarity of acts – distance in time – whether significant probative value to facts in issu

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/230.html

CRIMINAL LAW – appeal against conviction – three counts of sexual intercourse without consent s 61I Crimes Act 1900 – whether trial judge erred in admitting evidence of prior non-sexual domestic violence as relationship evidence – whether miscarriage of justice resulted – whether miscarriage of justice resulted from absence at trial of ‘fresh evidence’ of appellant’s Asperger’s Disorder

CRIMINAL LAW – application for leave to appeal against sentence – sexual intercourse without consent – appellant sentenced to seven and a half years imprisonment with four and half years non-parole period – whether sentences were manifestly excessive – whether objective seriousness of offences was assessed in context of marital relationship between appellant and complainant

http://www.austlii.edu.au/au/cases/cth/HCA/2012/35.html

Criminal law – Manslaughter by unlawful and dangerous act – Appellant party to joint enterprise to supply methadone to deceased – Deceased died from combined effect of methadone and prescription drug – Whether appellant’s supply of prohibited drug to deceased unlawful and dangerous act – Whether sufficient evidence to warrant order for new trial on basis that appellant administered or assisted in administering drug to deceased.

Criminal law – Manslaughter by criminal negligence – Appellant party to joint enterprise to supply methadone to deceased – Deceased suffered adverse reaction to drugs in appellant’s presence – Appellant failed to obtain medical treatment for deceased – Whether appellant under legal duty to take steps to preserve deceased’s life.

Words and phrases – “legal duty”, “omission”, “supplier of prohibited drug”, “unlawful and dangerous act”.

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/48.html

Criminal Law – Evidence – Propensity, tendency and co-incidence – Admissibility and relevancy – Tendency and co-incidence evidence under uniform evidence law – Other cases – Tendency to have sexual interest in young girls.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/204.html

CRIME – appeal against conviction – obtain money by deception – obtain money by false or misleading statements – whether charges on indictment consistent with offence in respect of which appellant surrendered for extradition – whether trial judge should have directed acquittal – whether miscarriage of justice – whether trial judge failed to direct jury on limb of indictment – whether jury verdicts unreasonable, unsafe or unsatisfactory – whether tendency direction should have been given – s 97(1) Evidence Act – appeal against sentence – whether non-parole period uncertain – whether failure to consider special circumstances – whether allowance for rehabilitation – whether manifestly excessive – totality principle.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/174.html

CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/162.html

EVIDENCE – prosecution relied on tendency evidence without giving notice – whether evidence also relevant to circumstantial case in relation to another offence – whether necessary to distinguish circumstantial evidence from tendency evidence – whether direction could have assisted jury – whether leave should be granted to rely on ground not objected to at trial – Evidence Act 1995 (NSW), s 97; Criminal Appeal Rules (NSW), r 4

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/107.html

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown was highly prejudicial to the accused – the probative value of the evidence did not substantially outweigh the prejudicial effect – application refused

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, Indictment or Presentment – Defence application to sever the indictment – found that there would be an unacceptable risk of prejudice to the accused if counts were heard in one trial – indictment severed – application allowed

Evidence Act 1995 (Cth), ss 97

Evidence Act 2011 (ACT), ss 55, 56, 97, 101

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/716.html

CRIMINAL LAW – sentence – murder – whether offender had an intention to kill or an intention to inflict grievous bodily harm – whether offender acted for reward – effect of offender’s brain injury upon need for general deterrence – whether special circumstances – malicious wounding – whether partial accumulation of sentences warranted

9. Prior to the commencement of the trial, the Crown served a notice pursuant to s 97 of the Evidence Act 1995 seeking the admission, in its case against the offender at trial, of evidence concerning an incident at Kings Cross approximately two weeks after the murder of the deceased (“the Kings Cross incident”). The Crown’s application was later expanded to include an application that the evidence be admitted pursuant to s. 98 of the Evidence Act . In a judgment delivered on 16 February 2012, I concluded that the evidence should not be admitted.

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/75.html

PRACTICE AND PROCEDURE – scope of remittal to the primary judge

EVIDENCE – whether s 94(3) of the Evidence Act 1995 (Cth) precluded the application of s 97 – whether further submissions should be received as to the applicability of s 97 to the admissibility of “impugned” emails in circumstances where no ground of appeal relied on s 97

COSTS – where appeals successful but the appellants were not successful on a substantial number of issues raised

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/89.html

CRIMINAL LAW – EVIDENCE – Crown application to adduce Tendency Evidence – evidence sought to be adduced by the Crown is of significant probative value – application conditionally allowed

CRIMINAL LAW – EVIDENCE – Crown application to adduce Coincidence Evidence – evidence sought to be adduced by the Crown is not coincidence evidence according to s 98 of the Evidence Act 2011 (ACT) – application refused

Evidence Act 1995 (Cth), ss 97

Evidence Act 2011 (ACT), ss 55, 56, 97, 98, 101, 137,

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/86.html

CRIMINAL LAW – 5F application – jury trial – trial by judge alone – application of s 132 of the Criminal Procedure Act 1986 – whether there is a presumption in favour of a jury trial – what factors are relevant to a determining the interests of justice – whether the subjective views of the accused are relevant to the interests of justice – whether there is evidence to support the subjective views of the accused – whether trial efficiency and reasons are relevant to the interests of justice

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/381.html

PERSONAL INJURY – supply of contaminated food – Salmonella poisoning – factual contest as to source of supply.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/467.html

CRIMINAL LAW – evidence – tendency and coincidence – evidence proposed to be adduced by one accused concerning the behaviour of another accused relevant to a claim of duress – no significant probative value

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/57.html

CRIMINAL LAW – appeal – conviction – manslaughter – unlawful and dangerous act – joint criminal enterprise – need for agreement to commit act exposing victim to appreciable risk of serious injury – whether failure to direct jury as to essential element of offence led to miscarriage of justice – whether failure to comply with pre-trial disclosure requirements led to miscarriage of justice – evidence of critical Crown witness – ss 137, 138 Criminal Procedure Act 1986

CRIMINAL LAW – appeal – conviction quashed – miscarriage of justice – circumstances in which retrial appropriate

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/1.html

Defence Force Discipline Appeal Tribunal

MILITARY LAW – leave to appeal sought – granted – Restricted Court Martial – charges – creating a disturbance by causing a confrontation – service offence – whether charge not known in law – not a service charge – not capable of founding jurisdiction – ground failed – whether conviction bad for duplicity – series of acts may constitute course of conduct – ground failed – whether conviction wrong in law – whether no direction given – whether fault element to charge – physical element – intention – recklessness – direction involved no error – no miscarriage – ground failed – whether requirement for direction as to onus of proof – element of charge – no error – whether erroneous direction as to meaning of “disturbance” – whether disturbance justified by conduct of other officer involved – disturbance correctly characterised – other officer’s conduct not relevant to charge – ground failed – whether first charge oppressive when combined with second charge – charges were preferred in the alternative – not oppressive to prefer charges in the alternative – no exhaustive statement of offences which may be regarded as alternatives under Defence Force Discipline Appeal Act – ground failed – whether failure to direct that potential cause of confrontation was a comment made previously by officer involved in confrontation with appellant – whether comment made contrary to Racial Discrimination Act – giving rise to consequential right to protest – duty on Commonwealth to prevent such conduct – no consequential right created – no duty imposed on Commonwealth or other person – ground failed – whether evidence should have been called as to cause of confrontation – evidence was before the court at trial – whether evidence incorrectly ruled as irrelevant and inadmissible – whether questions asked by defending officer were irrelevant and should have been disallowed – no substance to grounds – whether defending officer affected by apprehended bias – whether discretion in relation to adjournment application wrongly exercised – whether Judge Advocate should have disqualified himself – complaint amounted to appellant’s dissatisfaction with rulings on adjournment application – no bias discerned – ground failed – whether ruling of inadmissibility with respect to evidence going to credit of officer in error – ruling correct – ground failed – whether error in not providing Jones v Dunkel direction in relation to failure to call particular evidence – witness was unavailable – evidence supportive of prosecution – no proper basis to infer otherwise – ground failed – whether remarks made by Judge Advocate gave rise to actual or apprehended bias – no complaint made with respect to bias at trial – no rulings the subject of complaints alleged to be tainted by error – no reasonable observer could have apprehended the Judge Advocate might not bring an impartial mind to the resolution of the issues – ground failed – procedural defect in original charge sheet – said to give rise to want of delegation – no failure to properly exercise power of delegation – did not render trial nullity – ground failed – whether conviction unsafe and unsatisfactory by virtue of all matters raised above – evidence sufficient to conclude beyond reasonable doubt that service offence committed by appellant – ground failed – appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/9.html

EVIDENCE – admissibility – coincidence evidence – s 98 Evidence Act 1995 (Cth) – significant probative value – whether regard must be had to alternative inferences inconsistent with guilt – whether R v Zhang was correctly decided – distinction between judge and jury functions in a criminal trial.

CRIMINAL LAW – appeal – pre-trial order – insider trading – s 1043A(1) Corporations Act 2001 (Cth)

Evidence Act 1995 (NSW) – ss 55, 56, 97, 98, 101, 135, 137

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/258.html

CRIMINAL LAW – verdict – appeal against conviction – whether conduct of trial by counsel resulted in miscarriage of justice – trial counsel failed to lead medical evidence of deceased’s mental health – trial counsel failed to cross-examine on material in medical records – trial counsel failed to call witnesses – whether appellant lost an opportunity of acquittal that was fairly open to the jury – no reasonable explanation for trial counsel’s failure to lead medical evidence and cross-examine on medical records – reasonable explanation for failure to call witnesses – no miscarriage of justice – appeal dismissed

CRIMINAL LAW – joint criminal enterprise – whether trial judge erred in leaving a joint criminal enterprise open to the jury as an alternative basis for liability – no evidence to support a joint criminal enterprise – trial judge wrongly put the alternative case on joint criminal enterprise to the jury

CRIMINAL LAW – verdict – appeal against conviction – directions of trial judge – whether trial judge erred in directions on self-defence and defence of another – whether trial judge erred in directing the jury in relation to admission by witness

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1301.html

The evidence of the six deponents went to the experience that they had had in dealing with educational institutions attended by the applicant. Their own disabled children had attended those institutions. To a large extent, the events described in the various affidavits related to different times from those during which the applicant complains he was the subject of discrimination at the institutions.
In none of the affidavits relied on were specific individuals named who were said to have been personally responsible for any of the adverse conduct, and it is, therefore, not possible for me to form a view as to whether one or more of those individuals might also have been responsible for conduct about which the applicant complains. There is also an absence of detail on important matters, namely, the degree of disability suffered by the other children and the manifestations of those disabilities which, in turn, gave rise to the circumstances in which the alleged adverse action was taken.
The applicant can only rely on material of this kind if he can bring himself within one of the exceptions to the tendency rule or the coincidence rule, which are to be found, respectively, in ss 97 and 98 of the Evidence Act 1995 (Cth) (“the Evidence Act ”).

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/217.html

CRIMINAL LAW – appeal against conviction – appellant convicted of aggravated sexual assault – admission of tendency evidence- tendency evidence concerned a further sexual assault – possibility of concoction between victims – media reports concerning appellant’s misconduct – possibility of contamination – ground dismissed

CRIMINAL LAW – appeal against conviction – miscarriage of justice – incompetence of counsel – failure of legal representatives to adduce evidence of media reports concerning appellant’s misconduct – media article relevant to admission of tendency evidence – ground dismissed

CRIMINAL LAW – appeal against conviction – credibility of complainant – inconsistent statements concerning alleged sexual assault – absence of complaint by victim when questioned – judge gave directions in relation to absence of complaint – trial judge found complainant had reason for denying sexual assault – ground dismissed

Evidence Act 1995 (NSW) ss 97, 101

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2005/1191.html

Defamation
Admissibility of evidence
Tendency evidence
Imputations
Truth/Falsehood of Allegation
Signficiant probative value

Evidence Act 1995 (NSW) ss 55, 56, 97 and 135