CRIMINAL LAW – Appeal – Conviction – Rape and indecent assault – Tendency evidence – Eight complainants – Whether evidence of individual complainants cross-admissible – Whether sufficient similarity or commonality in sexual acts or surrounding circumstances – Crown concession that evidence of two complainants not cross-admissible – Evidence of other complainants cross-admissible – Appeal allowed, retrial ordered – Velkoski v The Queen  VSCA 121 applied – Evidence Act 2008 ss 97, 101.
CRIMINAL LAW – Interlocutory appeal – Tendency evidence – Sexual offences against child under age of 16 – Single complainant – Evidence of sexual interest in complainant and willingness to act on that interest – Velkoski v The Queen  VSCA 121, considered – Use of evidence of charged acts as tendency evidence – Versi v The Queen  NSWCCA 206, applied.
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Adequacy of judge’s charge – Trial judge’s responsibility to identify real issues and summarise relevant evidence – Whether defence case and evidence adequately summarised – Central issue was reliability of complainants – Jury charge sufficient – R v AJS  VSCA 288; (2005) 12 VR 563 applied – Whether verdict unsafe and unsatisfactory – Reasonable jury not bound to have doubt – R v Klamo  VSCA 75; (2008) 18 VR 644, Greensill v The Queen (2012) 37 VR 257 applied – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child, gross indecency and indecent assault – Limits on cross-examination – Judge’s obligation to manage proceeding – Collateral evidence rule – Issues going to complainant’s credibility – Whether defence unfairly constrained – Limits appropriate – No unfairness – Papazoglou v The Queen (2010) 28 VR 644 applied.
CRIMINAL LAW – Appeal – Conviction – Trial – Witnesses – Prosecutor’s obligation to call – Applicant’s sons said to have been present when offences committed – Substantial time between offending and trial – Younger son had no recollection – Elder son had given evidence at earlier trial – No relevant recollection – Prosecution elected not to call either son – Both witnesses called by defence – Whether prosecution’s decision led to miscarriage of justice – No misuse by prosecution of opportunity to cross-examine – No miscarriage of justice.
CRIMINAL LAW – Appeal – Conviction – Evidence – Tendency evidence – Two complainants – Whether evidence cross-admissible – Whether significant probative value – Whether collusion reasonably possible – No evidence of collusion – No miscarriage of justice – Evidence Act 2008 ss 97, 101.
CRIMINAL LAW – Appeal – Conviction – Jury – Requirements of jury trial – Juror’s oath – Sufficiency of jury deliberations – Majority verdicts – Perseverance direction – Scope of ‘exclusionary rule’ – Note from jury to judge – One juror said not to be participating in deliberations – Whether individual juror required to participate in collective deliberation – Jury resumed deliberation after direction – No miscarriage of justice – Smith v Western Australia (2014) 250 CLR 473, Black v The Queen  HCA 71; (1993) 179 CLR 44 applied – Juries Act 2000 s 46(2) and sch 3.
CRIMINAL – appeal – conviction – whether misdirection in presentation of crown case to jury – no misdirection on factual possibility of push followed by a trip – consistent with an intention to kill – direction consented to – no tactical disadvantage – no miscarriage of justice – misdirection on availability of mental element of reckless indifference to human life – not Crown case – whether miscarriage of justice – significance of the appellant’s case that he was not involved in death at all – possibility of jury speculating remote – no objection by counsel
CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether evidence wholly or substantially based on specialised knowledge – process of reasoning involved matters of common knowledge
CRIMINAL – appeal – evidence – admission of evidence – expert opinion – whether expert had relevant expertise – whether expertise from study and experience – no details of how investigations conducted equipped expert to give evidence in present case – publications not tendered – titles of publications insufficient evidence of expertise from study and experience
APPEAL – criminal – whether notwithstanding appellant’s success appeal should be dismissed – application of proviso – 6(1) Criminal Appeal Act 1912 (NSW) – whether no substantial miscarriage of justice – consideration of importance of expert evidence – Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant
APPEAL – criminal – fresh evidence – whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence – could have been discovered by reasonable due diligence – no miscarriage of justice – previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence
CRIMINAL – appeal – conviction – no error in direction on use of evidence as both tendency evidence and for motive – reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved
SEARCH WARRANTS – Validity – Where search warrant granted to search premises in relation to an offence of threatening injury or detriment to a person believing that such person will be or may be called as a witness in judicial proceedings – Whether judicial proceedings are required to be on foot in order for such offence to be made out – Whether search warrant invalid
SEARCH WARRANTS – Validity – Whether reasons stated in the application for a search warrant were truthful – Where Court was invited to conclude that the stated reasons were a “cover” for another undisclosed reason – Where no such proposition was put to the applicant for the search warrant when cross examined – Breach of the rule in Browne v Dunn – Where evidence did not support the proposition that the warrant was issued for a reason other than that stated in the application
STATUTORY INTERPRETATION – general principles to be applied
CRIMINAL LAW – Appeal – Application for a permanent stay of prosecution for multiple counts of sexual assault – Where applicant found unfit to stand trial – Where Director of Public Prosecutions had determined to proceed to special hearing in any event – Where offending conduct occurred more than 40 years ago – Where the making of allegations arose as the result of recovered memory – Where only expert evidence supported the conclusion that such process was unreliable – Where material evidence no longer available due to lapse of time – Where primary judge dismissed application for a stay – Where error in exercise of discretion made out – Where discretion re-exercised – Stay of proceedings granted
CRIMINAL LAW – Appeal – Conviction – Kidnapping, false imprisonment and intentionally causing injury – Jury directions – Whether directions about ‘background’ or ‘context’ invited propensity or tendency reasoning by jurors – No substantial miscarriage of justice – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Leave to appeal – Jury – Apprehended bias – Whether juror overheard accused at café – Whether judge investigated adequately – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Kidnapping, false imprisonment and intentionally causing injury –Total effective sentence nine years and six months’ imprisonment, non-parole period seven years – Whether manifestly excessive – Parity – Whether identical sentences adequately reflected youth and rehabilitation of younger applicants – Procedural fairness – Psychologist’s report – Judge’s assessment of applicant more favourable than report – Whether finding reasonably anticipated – Younger applicants re-sentenced – Eight years’ imprisonment, non-parole period five years and six months.
CRIMINAL LAW – evidence – tendency evidence – admissibility – whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) – whether judicial directions may ameliorate any prejudicial effect
CRIMINAL LAW – evidence – context evidence – admissibility – whether evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995 (NSW)
EVIDENCE – admissibility – tendency evidence – whether notice requirement should be dispensed with – whether unfair prejudice to do so
CRIMINAL LAW – appeal against conviction – appellant convicted of multiple offences relating to sexual assaults against two complainants – complainants were students at the school at which the appellant resided and was employed – jury in the first trial were unable to agree as to the counts and were discharged – appellant retried before another judge and jury – during the second trial the appellant sought a redetermination of a number of pre-trial orders made by the first trial judge – trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of separate trials on the counts relating to each complainant – trial judge did not err in refusing an application pursuant to s 130A of the Criminal Procedure Act 1986 in respect of tendency and coincidence evidence relied upon by the prosecution – trial judge did not err in refusing an application for a permanent stay of the indictment in respect of one complainant – appellant was not cross-examined contrary to Palmer v R – principles as to impermissible cross-examination referred to in Gonzales v R  NSWCCA 321 – whether there was a miscarriage of justice – basis upon which the appellant conducted his case that complainants and other witnesses had lied – conviction of the appellant was not unsafe or unsatisfactory – appeal dismissed
APPEAL AND NEW TRIAL – appeal – general principles – interference with discretion of court below – whether decision involved a discretionary exercise of power
COURTS AND JUDICIAL SYSTEM – intermediate appellate courts – interpretation of uniform legislation -provisions with respect to admissibility of tendency and coincidence evidence – different interpretations alleged as to meaning of “significant probative value” – Velkoski v The Queen  VSCA 121 held “significant probative value” requires a higher degree of similarities to that required by this Court – whether difference exists – whether difference needs to be addressed and reconciled – Evidence Act 1995 (NSW), ss 97, 98 – Evidence Act 2008 (Vic), ss 97, 98
EVIDENCE – admissibility – tendency and coincidence evidence – similar circumstances alleged in separate and independent complaints against applicant – whether evidence had “significant probative value” – whether trial judge failed to identify issues at trial to determine probative value – degree of specificity of conduct in determining probative value of tendency or coincidence evidence – relevance of similarities in determining probative value of tendency evidence – whether probative value of evidence outweighed any prejudicial effect – Evidence Act 1995 (NSW), ss 97, 98, 101(2)
CRIMINAL LAW – evidence – severance of counts – assault occasioning actual bodily harm – separate trial – murder – accused state of mind – transactional evidence
CRIMINAL LAW – Murder – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to accused – ss 97, 101 Evidence Act, 2008 (Vic)
EVIDENCE – Tendency evidence – Single incident occurring subsequent to the murder – Tendency relevant to the issue of the identity of the killer in a murder trial – Whether any tendency established – Whether evidence has significant probative value – Whether probative value substantially outweighs prejudicial effect to the accused – ss 97, 101 Evidence Act, 2008 (Vic)
CORPORATIONS – insolvency – winding up – appeal from decision refusing application to remove liquidators – whether judge erred in statement of test for apprehension of bias – whether apprehension of bias arises in circumstances including liquidators needing to investigate transactions involving a corporate group with whom the liquidators have a referral relationship
CORPORATIONS – insolvency – voluntary administration – appeal from decision refusing application for declarations that administrators contravened s 436DA of the Corporations Act 2001 (Cth)
EVIDENCE – relevance – tendency
COSTS – applicant had failed in claims under the Sex Discrimination Act 1984 (Cth) and succeeded partially in claims under the Fair Work Act 2009 (Cth) – respondent sought costs of failed discrimination claims – whether s 570 of the Fair Work Act limits the Court’s power with respect to costs of claims under the Sex Discrimination Act – respondent also sought costs under s 570(2)(b) of the Fair Work Act – whether particular applications and other acts were unreasonable
CRIMINAL LAW – appeal – conduct of prosecution – closing address to jury – general comments made about the credibility of children – whether prosecutor improperly suggested having a particular expertise with respect to the testimony of children – whether prosecutor improperly invited the jury to rely on a lie told by accused – prejudicial effect considered – failure by defence to object at trial – whether audio recording of address should be tendered
CRIMINAL LAW – appeal – whether defence counsel incompetent – failure to lead evidence – complainants said accused was kneeling during sexual intercourse – failure to call medical evidence regarding accused’s difficulties kneeling – whether trial miscarried
CRIMINAL LAW – appeal – unreasonableness of verdicts – separate counts of indecent assault against two children – one count of sexual intercourse with a child – accused found guilty of one charge of indecent assault and charge of sexual intercourse with same child – acquittal on other charges – unreasonableness alleged on lack of consistency between verdicts and unreliability of evidence – possibility of concoction
EVIDENCE – tendency – direction to jury – whether judge should have warned against tendency reasoning – use of acts alleged against one child as potential tendency evidence for acts against the other child – prosecution not seeking to rely on tendency – direction that each offence should be considered separately – no objection raised at trial about failure to give warning
EVIDENCE – appeal – ground alleged failure by defence counsel to call medical evidence at trial – test of miscarriage objective – counsel’s reasons for conduct of trial irrelevant – evidence from counsel inadmissible
EVIDENCE – relevance – tendency
HUMAN RIGHTS – sex discrimination – applicant made redundant while on maternity leave – whether applicant “targeted” for dismissal after announcing her pregnancy – whether termination constituted discrimination on the basis of sex, pregnancy or family responsibilities – whether applicant sexually harassed
INDUSTRIAL LAW – National Employment Standards – whether respondent failed to respond to a request for flexible working arrangements – whether respondent failed to consult employee on parental leave regarding changes affecting status, pay or location of pre-parental leave position – whether return to work guarantee in s 84 of the Fair Work Act 2009 (Cth) contravened
CRIMINAL LAW – EVIDENCE – Application to adduce tendency evidence – two charges of committing an act of indecency – whether probative value of evidence outweighs prejudice to accused
EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen  HCA 50; (1988) 165 CLR 292; R v Papamitrou  VSCA 12; (2004) 7 VR 375; R v Ellis  NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen  FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic)  VSCA 26; (2010) 24 VR 486; AE v The Queen  NSWCCA 52; PNJ v Director of Public Prosecutions (Vic)  NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen  VSCA 95; GBF v The Queen  VSCA 135; R v Ford  NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR  VSCA 229; PG v The Queen  VSCA 289; CW v The Queen  VSCA 288; KRI v The Queen  VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen  VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen  VSCA 442; DR v The Queen  VSCA 440; CEG v The Queen  VSCA 55; Reeves v The Queen  VSCA 311; R v PWD  NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen  VSCA 93; (2012) 35 VR 475; Semaan v The Queen  VSCA 134; Murdoch v The Queen  VSCA 272; SLS v The Queen  VSCA 31R; CV v Director of Public Prosecutions (Vic)  VSCA 58; Doyle v The Queen  NSWCCA 4; Sokolowskyj v The Queen  NSWCCA 55; DAO v The Queen  NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen  NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.
CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid  NSWCCA 258; Gonzales v The Queen  NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen  NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [ VR 577, followed – Waiver – R v Clarke  VSCA 294; (2005) 13 VR 75; R v McCosker  QCA 52;  2 Qd R 138, followed – Whether trial judge under duty to intervene.
CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen  VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.
EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.
CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.
PROCEDURE – civil – interlocutory issues – application to reopen – whether party at fault by failing to address issues in submissions
PROCEDURE – civil – judgments and orders – stay pending appeal
COSTS – agreements – construction – whether contractual provisions provide for costs on indemnity basis
COSTS – exception to the general rule that costs follow the event – multiple issues – whether defences raised dominant or severable
Criminal law – Application to exclude evidence – Substantial impairment – Undiagnosed mental illness – Research
TORTS – medical negligence – alleged failure to advise plaintiff of risk of pregnancy and need for contraception following endometrial ablation – burden of proof not discharged – evidence of “usual practice” – usual practice supported by defendant’s publications.
DAMAGES – claim for damages – recovery for out of pocket expenses – damages for various injuries – recovery for additional costs associated with rearing or maintaining a disabled child – causation – Wallace v Kam.
EVIDENCE – TENDENCY – tendency evidence adduced by accused – tendency of deceased to engage in “violent/aggressive behaviour” – tendency of deceased towards self-harm – COPS entries – medical records – whether evidence has significant probative value.
CRIMINAL LAW – evidence – propensity, tendency and co-incidence – admissibility and relevance – tendency and co-incidence evidence under uniform evidence law – evidence admitted of prior guilty plea and admissions of aggravated indecent assault in trial of other indecent assault charges where accused pleading not guilty
CRIMINAL LAW – evidence – propensity, tendency and co-incidence – admissibility and relevance – tendency and co-incidence evidence under uniform evidence law -whether risk of contamination or concoction of evidence between complainants
CRIMINAL LAW – appeal and new trial – whether verdict unreasonable or insupportable having regard to evidence
CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applications granted and appeals heard instanter and dismissed– Three charges of maintaining a sexual relationship with a child under 16 – Total effective sentence of 11 years and nine months’ imprisonment with a non-parole period of nine years – No error by trial judge in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 – ‘Occasions’ were sufficiently particularised – No error by trial judge in ruling that evidence that applicant accessed child pornography was admissible to refute applicant’s statements in police interview that he was only interested in adult women – No error by the trial judge in admitting a video recording of a pretext conversation between the complainant and the applicant – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 ss 47A, 70(1).
CRIMINAL LAW – sentence – murder – jury verdict – stabbing with intention to kill – fact finding after trial – no premeditation but not impulsive or spontaneous – above mid range of objective seriousness – no remorse – guarded prospects of rehabilitation – no special circumstances
CRIMINAL LAW – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.
Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a nonparole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).
CRIMINAL LAW – Trial – Murder – Self-defence – Family violence – Whether family violence ‘alleged’ – Whether defence inconsistent with record of interview – Whether prosecutor bound to call Crown witnesses named on indictment – Whether Crown witnesses may be cross-examined on family violence – Questioning allowed – Crimes Act (Vic) 1958 s 9AH.
EVIDENCE – Criminal trial – Tendency evidence – Hearsay evidence – Evidence to be adduced in cross-examination – Nature and purpose of evidence identified in defence written submission – Whether further notice required – Evidence Act 2008 (Vic) ss 67, 97, 100.
EVIDENCE – Criminal trial – Murder – Self-defence – Family violence – Advance ruling – Character evidence – Proposed cross-examination of Crown witnesses about relationship between accused and deceased – Whether adducing evidence of accused’s behaviour in response to family violence would put his character in issue – Whether proposed Crown evidence of other conduct admissible – Whether ruling premature – Ruling given – Character not in issue – Crimes Act 1958 (Vic) s 9AH, Evidence Act 2008 (Vic) ss 110, 192A.
EVIDENCE – Criminal trial – Hearsay – Exception to hearsay rule – Statements by accused to witness about facial injuries – Whether accused’s statements about cause of injuries within exception – Whether admissible for non-hearsay purpose – Evidence inadmissible – Subramaniam v Public Prosecutor  1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.
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.
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.
CRIMINAL LAW – attempt to import marketable quantity of heroin, dealing with money the proceeds of crime (C’th) – supply large commercial quantities of heroin, methylamphetamine (NSW) – appeal against conviction – joint trial of counts – whether evidence cross-admissible – whether defences prejudiced
EVIDENCE – tendency evidence – whether evidence relied upon as tendency evidence had significant probative value – whether other inferences relied upon by the Crown reasonably open
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.
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
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
EVIDENCE — application to adduce tendency evidence — whether significant probative value — meaning of fact in issue — general discretion to exclude — application allowed in part.
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.
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
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
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
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
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  VSCA 295; G B F v The Queen  VSCA 135 applied — Evidence Act 2008 (Vic) ss 97, 101.
CRIMINAL LAW – evidence – tendency evidence – evidence proposed to be adduced by accused concerning behaviour of deceased child’s mother
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
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.
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.
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.