EVIDENCE – application to adduce tendency evidence – applicant made redundant while on maternity leave – sought to adduce evidence from another employee of the respondent who was made redundant while on maternity leave – whether significant probative value – whether reasonable notice given
CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R  HCA 26; (1986) 160 CLR 392, applied; R v Abou-Chabake  NSWCCA 356; (2004) 149 A Crim R 417; Mickelberg v R  HCA 35; (1989) 167 CLR 259; R v Nguyen  4 VR 394, referred to.
JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher  2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.
EVIDENCE – Hearsay – Whether evidence of co-offenders’ out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R  HCA 22; (1961) 104 CLR 1; Ahern v R  HCA 39; (1988) 165 CLR 87, applied; R v Christie  AC 545, referred to.
EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn  VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure  VicRp 87;  2 VR 497; Jenkins v R  HCA 57; (2004) 79 ALJR 252, referred to.
MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas  VSCA 304; (2007) 18 VR 205; Brown v R  NSWCCA 395, applied; R v Vandine  1 NSWR 252; Johns v R  HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R  HCA 64; (2003) 219 CLR 1; Dupas v R  HCA 20; (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.
CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R  HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW)  HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld)  HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross  HCA 22; (1978) 141 CLR 54; Ridgeway v R  HCA 66; (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.
TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R  HCA 42; (2013) 303 ALR 42, applied; R v Apostilides  HCA 38; (1984) 154 CLR 563, referred to.
AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland  VicRp 100;  VR 849; Crofts v R  HCA 22; (1996) 186 CLR 427, applied.
DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors  VSC 3; Woolworths Ltd v Svajcer  VSCA 270, referred to.
VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.
SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R  HCA 57; (1998) 194 CLR 610, applied; Dietrich v R  HCA 57; (1992) 177 CLR 292, referred to.
Applications for leave to appeal against conviction and sentence dismissed.
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.
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 – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury
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
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
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
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
CRIMINAL LAW − Conviction − Incest − Indecent assault − Gross indecency − Indecent act with and in the presence of a person under the age of 16 − Two complainant stepdaughters
− Joinder − Whether substantial miscarriage of justice occasioned by trial of offences against both complainants in same proceeding − Evidence − Admissibility − Tendency and coincidence evidence − Jury directions − Whether trial judge adequately directed jury regarding use of charged and uncharged acts and elements of offences − Whether substantial miscarriage of justice occasioned by jury directions being given prior to charge.
57 Probative value is defined in the dictionary to the Evidence Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.
CRIMINAL LAW – Conviction – Sexual penetration of a child aged 16 or 17 under appellant’s care, supervision or authority (Counts 1, 2 and 5 against niece) – Indecent act with child under 16 (Counts 3 and 4 against daughter) – Niece gave evidence of uncharged acts – Relevant to context – No objection by defence counsel who wanted evidence admitted to use in cross-examination of niece – Whether evidence received as tendency evidence – Whether judge required to direct jury of need to be satisfied beyond reasonable doubt of uncharged acts alleged by niece before relying on such acts in relation to counts 1, 2 and 5 – R v Sadler  VSCA 198; (2008) 20 VR 69 considered – Direction not required in the circumstances – Whether judge failed to tell jury it could not use niece’s evidence of uncharged acts in relation to counts 3 and 4 – Appeal dismissed.
3 The trial was relevantly governed by the provisions of the Evidence Act 2008 (‘the Act’). In point were ss 97, 100 and 101 of that Act, not s 398A of the Crimes Act 1958.
CRIMINAL LAW – trial by judge alone – charge of trafficking in a controlled drug other than cannabis – accused is guilty.
EVIDENCE – admissibility and relevancy – hearsay – whether records of telephone calls inadmissible as hearsay – admissible as admissions of accused – other party’s conversation not admitted for truth of representation.
EVIDENCE – admissibility and relevancy – tendency evidence – no notice given in time – whether prosecution should be permitted to rely on evidence – substance given well before trial – evidence admitted.
EVIDENCE – admissibility and relevancy – tendency evidence – whether of significant probative value – whether significant probative value outweighs unfair prejudice – evidence admissible.
CRIMINAL LAW – evidence – res gestae – whether doctrine survives enactment of Evidence Act 1995 (Cth).
Evidence Act 1995 (Cth), ss 59, 66, 67, 97, 100, 101, 137, Pt 3.4
CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault – Whether evidence of uncharged acts thereby made admissible.
Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192
CRIMINAL LAW – Indictment with two counts of defrauding the Commonwealth and one count of conspiracy to dishonestly cause a risk of loss to the Commonwealth – Severance application – Judicial discretion to sever – Whether evidence on first two counts is admissible on the third count and vice-versa – No severance ordered.
Harriman v R  HCA 50;  167 CLR 590, considered.
3 Pursuant to an agreement between the parties, argument on 19 and 20 October 2009 proceeded on the assumption that as at the date now fixed for the commencement of the trial, being 1 February 2010, the Evidence Act 2008 (Vic) would be in operation, and the submissions addressed admissibility by reference to the provisions of that Act.
TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where fifth respondent was a natural person and second, third and fourth respondents were corporations associated with him – where fifth respondent made representations to first applicant that prototype portable accommodation unit was under construction in China
Held: application allowed – representations as to prototype materially contributed to applicants entering into agreements – the applicants’ entry into the agreements was sufficient to establish that they suffered loss or damage – the fifth respondent was liable as being “knowingly concerned” in the contravention under s 75B(1) of the Trade Practices Act 1974 (Cth).
TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for breach of s 51AD – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where no disclosure documents provided as required if the agreements were a franchise agreement under the Franchising Code of Conduct – whether the agreements or one or more of them was a franchise agreement or agreement to enter into franchise agreement under Franchising Code of Conduct – whether agreement granted the right to carry on the business of offering, supplying or distributing goods or services under a system or marketing plan substantially determined, controlled or suggested by the franchisor or an associate of the franchisor within clause 4(1)(b) of the definition of franchise agreement
Held: application allowed – agreements provided for matters such as a centralised bookkeeping and recordkeeping computer operation, the reservation to the franchisor of the right to screen and approve promotions, the prohibition of repackaging of products, suggested retail prices by the franchisor, a comprehensive advertising and promotional program by the franchisor, the division of a state into marketing areas, the establishment of sales quotas and the restriction on the sale of products without the franchisor’s consent – the fifth respondent was not liable as being “knowingly concerned” in the contravention under s 75B(1) of the Trade Practices Act 1974 (Cth).
TRADE PRACTICES – application for relief under s 159 of the Fair Trading Act 1999 (Vic) for misleading and deceptive conduct – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where sixth respondent was a firm of solicitors and had prepared the relevant agreements – where the agreements or one or more of them had been held to be a franchise agreement and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the sixth respondent had engaged in misleading or deceptive conduct by failing to advise the applicants that the Franchising Code applied.
Held: application dismissed – the applicants did not have a reasonable expectation that the sixth respondent would advise them on whether the Franchising Code applied – the sixth respondent owed a duty of confidence to the second to fifth respondents and the failure to disclose was not deliberate.
TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for breach of s 51AD – where applicants entered into agreements with second to fifth respondents for the sale of portable accommodation units – where the agreements or one or more of them had been held to be a franchise agreement and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the sixth respondent was “knowingly concerned” in the contravention of s 51AD under s 75B(1) because they drafted the agreements.
Held: application dismissed – the sixth respondent did not know all essential matters that made up the contravention because they did not know that the Franchising Code of Conduct applied to the agreements.
CONTRACT – claim for breach of retainer – where the second to fifth respondents had retained the sixth respondent to draft agreements relating to the sale of portable accommodation units – where the agreements or one or more of them had been held to be franchise agreements and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the sixth respondent had adequately advised the second to fifth respondents as to Franchising Code of Conduct
Held: application dismissed – uncontradicted evidence that the sixth respondent had adequately advised the second to fifth respondents.
TRADE PRACTICES – application for relief under s 87 of the Trade Practices Act 1974 (Cth) for breach of s 51AD – where the agreements or one or more of them had been held to be franchise agreements and the disclosure obligations under the Franchising Code of Conduct had not been complied with – whether the second to fifth respondents could claim a contribution or indemnity from the sixth respondent by reason of s 75B(1) of the Trade Practices Act 1974 (Cth)
Held: application dismissed – s 75B(1) of the Trade Practices Act 1974 (Cth) does not enable the court to make orders for contribution or indemnity – the sixth respondent was not knowingly involved in the contravention of s 51AD for the purpose of s 75B(1) of the Trade Practices Act 1974 (Cth).
Evidence Act 1995 (Cth) ss 97, 99, 100
PRACTICE AND PROCEDURE: Application pursuant to ss 30 and 50 of the Bankruptcy Act 1966 – whether trustee should take control of respondent’s property – whether respondent should be restrained from departing Australia.
Evidence Act 1966 (Cth), ss 91(1), 97(1)(a), 100(1), 135.
Criminal law – trial – evidence – tendency evidence – effect on trial – necessity for notice – application to dispense with notice – prejudice curable by adjournment, discharge and costs – undertaking by Crown to pay costs thrown away
Criminal Law – Evidence – Tendency Evidence – failure to give notice – whether trial judge should have dispensed with notice requirementrs – whether evidence ought to be rejected in exercise of discretion.
Evidence Act 1995 – ss 38, 97(1), 99, 100(1), 101(2), 135, 137, 192, 195
Evidence Act Regulations – clause 6
CRIMINAL LAW – evidence – prior criminal conduct – whether tendency – evidence of prior drug supply
EVIDENCE – tendency evidence – no operation of general exclusionary provisions where tendency provisions apply
JURISDICTION – s.5F(3A) Criminal Appeals Act (NSW) 1912 – whether decision of trial judge to exclude evidence substantially weakens prosecution’s case – appeal may be made against an interlocutory decision regardless of whether or not a jury has been empanelled
Evidence Act (NSW) 1995, ss. 55, 56, 97, 98, 100, 101, 135, 137, Dictionary
TRADE PRACTICES – consumer protection – asserting right to payment by complainants for unsolicited services – magazine publisher making telephone calls to complainants offering to publish advertisements – whether complainants in fact authorised advertisements – draft advertisement sent to complainants after initial telephone conversation with notification that advertisement would be deemed approved if no reply received within seven days – whether legally binding contract – whether existence of legally binding contract relevant to contravention
TRADE PRACTICES – consumer protection – accepting payment for services where there are reasonable grounds for believing corporation will not be able to supply such services – publisher of magazine for community organisation – advice of organisation withdrawing authority to publish – subsequent acceptance of payments from advertisers – whether reasonable grounds for belief as to future non-supply – whether objective test
EVIDENCE – coincidence evidence – complaints as to demands for payment for unsolicited services – no notice under s 98 Evidence Act 1995 (Cth) – whether probative at common law
WORDS AND PHRASES – “request”, “unsolicited services”
Evidence Act 1995 (Cth) ss 95, 98, 100, 101
EVIDENCE – Appeal against conviction for murder – Defence of self-defence – Evidence given by appellant that he stabbed the deceased in self-defence, when the (unarmed) deceased persisted in aggression and threats to kill him – Trial judge rejected evidence that 23 years earlier the deceased had killed three people, and that a few hours before his death he threatened to kill another person “like I killed the other three people” – Whether that evidence was admissible as tendency evidence or otherwise.
Evidence Act 1995 ss.97, 100, 135, 137
CRIMINAL LAW – appeal – miscarriage of justice – competence of counsel – failure of counsel to object to irrelevant and prejudicial evidence – evidence that portrayed appellant as violent, sexually predatory and a child molester – failure of counsel to seek direction from trial judge in relation to prejudicial evidence – whether omissions were a tactical decision of defence counsel – failure of trial judge to apply the Evidence Act 1995 , s 137 – failure to trial judge to direct jury in respect of irrelevant and prejudicial evidence – denial of fair trial amounted to miscarriage of justice – unsafe and unsatisfactory verdict – new trial ordered
Evidence Act 1995 , ss 32, 33, 55, 97, 100, 110
EVIDENCE – Circumstantial evidence – Coincidence evidence – Tendency evidence – Relationship evidence – Probative value and prejudicial effect – Contamination
CRIMINAL LAW – Appeal against conviction – Longman direction – Whether necessary – Whether adequate – Whether rule 4 leave should be granted.
Evidence Act 1995 ss.95, 97-101, 135, 137, 192.
EVIDENCE  – Admissibility and relevancy – Similar facts – To prove fact in issue – Particular cases – Evidence admissible – To resolve conflict as to contractual conversations – Evidence of statements in another negotiation – Whether evidence of tendency within s 97 of the Evidence Act 1995 (Cth) – “Significant probative value”.
Evidence Act 1995 (Cth) ss 55, 56, 97, 98, 100, 102 & 192(2)
Evidence of conversation with one other prospective supplier of goods admitted as relevant to determination of conflict of evidence as to contractual conversations of parties, but held not to be tendency evidence.
Multiple sexual offences; conviction after trial of 28 offences; plea of guilty to a further 16 offences with 31 other offences taken into account; notice of abandonment of appeal; refusal of leave to withdraw such notice; alleged fresh evidence but relevant facts known; no miscarriage of justice; admission of tendency and/or co-incidence evidence; no error in refusing separate trials; credibility of witnesses; alleged discrepancies and problems dating incidents which happened many years ago; adverse pre-trial publicity and publicity during trial; directions to jury to overcome publicity; verdicts reasonable and supported by evidence;
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – where evidence led as relationship evidence not tendency evidence – where evidence suggests prior illegal acts by the accused – whether relevant – if relevant, whether more prejudicial than probative – operation of ss 135 and 137 Evidence Act 1995 (Cth) – meaning of “prejudice” – must cause unacceptable damage to the accused’s case.
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – evidence of relationship between complainant and accused – relationship one of animosity – whether relevant – operation of s 55 Evidence Act 1995 (Cth) – existence of animosity admitted as relevant – source of animosity excluded as irrelevant.
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – evidence of earlier threat to complainant’s grandfather – whether relevant – irrelevant if tendered as relationship evidence – evidence excluded.
EVIDENCE – pre-trial application to exclude evidence relating to conduct of accused other than conduct alleged to constitute the charge – evidence of earlier threat by accused to complainant – evidence led as relationship evidence not tendency evidence – evidence relevant to the state of relationship between complainant and accused shortly before alleged assault – relevant to possible defence of self-defence or accident – evidence admitted – jury direction might be required.
Evidence Act 1995 (Cth), ss 137, 135, 55, 100
EVIDENCE – Appeals – Appeal against conviction – Charges of sexual assaults against female child – Evidence of conduct of sexual nature against complainant which was not the subject of a charge – Corroboration of that incident by complainant’s mother – Admitted as relationship evidence – No objection taken at trial – Directions by judge against use as tendency evidence – Whether evidence was in substance used as tendency evidence – Whether error shown in admission of evidence or directions – Application of rule 4.
Evidence Act 1995 , ss.97, 100, 101, 137
Attempt to obtain possession of narcotic goods
More than commercial quantity
Prior entry into Australia using false name and documents
False banking and other documentation
Knowledge of goods in possession of accused
Suspicious circumstances combined with failure to make inquiry
Specific direction not required
Ambit of s 108(3) of Evidence Act 1995
Section 108(3) not limited to the particular witness in the witness box against whom relevant allegation made
Limitation on use of prior consistent statement admitted only under s 108(3)
Procedure to be adopted in relation to evidence concerning prior consistent statement
No miscarriage of justice
Role of Appellant more than mere courier, not mastermind but performing organisational role in relevant criminal enterprise
Evidence Act: ss 55, 66, 97(1), 100, 102, 103, 108(3), 112, 135, 137, 190(2), 192; Part 3.8
EVIDENCE – tendency and coincidence – criminal trial – admissibility – multiple counts on indictment – where trial judge admitted evidence of each offence as tendency and coincidence evidence in relation to all other offences – where trial judge applied Evidence Act 1995 s 101 in terms – whether test in Pfennig v The Queen applicable – whether tendency and coincidence evidence admissible.