Category Archives: s. 097

Hanna v The Queen; Mohamed v The Queen; Mohamed v The Queen [2014] VSCA 187 (26 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/187.html

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.

R v MM [2014] NSWCCA 144 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/144.html

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)

JG v R [2014] NSWCCA 138 (25 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/138.html

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 [2007] 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

Saoud v R [2014] NSWCCA 136 (25 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/136.html

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 [2014] 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)

The Queen v Farrugia [2014] VSC 212 (14 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/212.html

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)

Australian Securities and Investments Commission v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd [2014] FCAFC 85 (18 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2014/85.html

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)

Stanley v Service to Youth Council Incorporated (No 3) [2014] FCA 716 (4 July 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/716.html

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

Lyndon v R [2014] NSWCCA 112 (24 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/112.html

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

Stanley v Service to Youth Council Incorporated [2014] FCA 643 (20 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/643.html

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

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/121.html

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen [2001] FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) [2005] NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31R; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen [2014] 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 [1999] NSWCCA 258; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen [2008] 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 [[1976] VR 577, followed – Waiver – R v Clarke [2005] VSCA 294; (2005) 13 VR 75; R v McCosker [2010] QCA 52; [2011] 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 [2011] 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.

Traderight (NSW) Pty Ltd (ACN 108 880 968) & Ors v Bank Of Queensland Limited (ACN 009 656 740) (No 18) and 13 related matters [2014] NSWSC 733 (6 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/733.html

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

Neville v Lam (No 3) [2014] NSWSC 607 (21 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/607.html

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.

RH v R [2014] NSWCCA 71 (9 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/71.html

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

McDonald v The Queen [2014] VSCA 80 (1 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/80.html

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).

Sokolowskyj v Regina [2014] NSWCCA 55 (15 April 2014)

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

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.

Benson v The Queen [2014] VSCA 51 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/51.html

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).

DPP v Bracken [2014] VSC 94 (12 February 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/94.html

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 [1956] 1 WLR 965 considered – Evidence Act 2008 (Vic) s 66A.

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.