Category Archives: s. 141

Today FM (Sydney) Pty Ltd v Australian Communications and Media Authority [2013] FCA 1157 (7 November 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/1157.html

ADMINISTRATIVE LAW – powers of Australian Communications and Media Authority (“ACMA”) to regulate commercial radio broadcasting licence holders – preliminary investigation report concludes that applicant contravened Surveillance Devices Act 2007 (NSW) and therefore breached a condition of licence under Schedule 2 of the Broadcasting Services Act 1992 (Cth) – whether ACMA can so conclude before competent Court adjudicates the issue – ACMA’s role to regulate the conduct of licensees including conducting investigations – whether ACMA’s findings interfere with the administration of justice in a criminal proceeding where no criminal proceeding has commenced – ACMA’s finding not determinative on question of criminal guilt.

CONSTITUTIONAL LAW – whether ACMA’s conclusion of breach of licence condition involves exercise of judicial power in conflict with Ch III of the Constitution

Lee v New South Wales Crime Commission [2013] HCA 39 (9 October 2013)

http://www.austlii.edu.au/au/cases/cth/HCA/2013/39.html

Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.

Words and phrases – “accusatorial system of criminal justice”, “derivative use immunity”, “direct use immunity”, “examination”, “fair trial”, “principle of legality”, “privilege against self-incrimination”, “real risk of interference with the administration of justice”, “right to silence”, “serious crime related activity”.

Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.

Magill v The Queen [2013] VSCA 259 (20 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/259.html

CRIMINAL LAW – Rape and supplying a drug of dependence to a child – Crown alleged text message contained an admission of guilt – Whether trial judge failed to properly direct the jury about how text message evidence could be used – Whether conviction was inevitable absent a Burns direction – Appeal against conviction on both charges allowed – Retrial ordered.

Comcare v Post Logistics Australasia Pty Limited [2011] FCA 1422 (13 December 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1422.html

INDUSTRIAL LAW – breach of s 16 of the Occupational Health and Safety Act 1991 (Cth) – liability admitted – question of pecuniary penalty to be imposed – assessment must take into account the particular circumstances of the incident – whether principles should be adopted from criminal law sentencing process – penalty should reflect objective seriousness of breach – assessment must also focus on the practical steps that could be taken to protect the health and safety of employees at the workplace – penalty imposed which differs from assessment offered by the parties

Evidence Act 1995 (Cth) ss 140, 141, 191

Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

http://www.austlii.edu.au/au/cases/cth/HCA/2011/34.html

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“Drugs Act”) – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) provided “[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights” – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.

Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.

Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined “traffick” to include “have in possession for sale” – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking

by that person – Whether s 5 applicable to offence under s 71AC on basis of “possession for sale” – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs.

Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.

Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.

Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order.

Words and phrases – “declaration”, “diversity jurisdiction”, “evidential onus”, “incompatibility”, “institutional integrity”, “interpret”, “legal onus”, “legislative intention”, “matter”, “possession”, “possession for sale”, “resident of a State”, “right to be presumed innocent”.

Constitution, Ch III, ss 73, 75(iv), 77(iii), 109.
Commonwealth of Australia Constitution Act 1900 (Imp), s 5.
Crimes Act 1914 (Cth), s 4C(2).
Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5.
Judiciary Act 1903 (Cth), ss 39(2), 79.
Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37.
Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2).
Interpretation of Legislation Act 1984 (Vic), s 6(1).

per CRENNAN AND KIEFEL JJ.
511. Section 5 of the Drugs Act denies the operation of the common law rule that the prosecution prove the guilt of an accused person by proof, beyond reasonable doubt, of both negative and positive elements of an offence[721]. The rule reflects the common law concept of the presumption of a person’s innocence[722].
512. The principle of legality at common law would require that a statutory provision affecting the presumption of innocence be construed, so far as the language of the provision allows, to minimise or avoid the displacement of the presumption. But, for the reasons which follow, its application to s 5 cannot yield a construction other than that required by the clear language of that section, which places the legal burden of proof on the accused.

FN
[721] Referred to as the “golden thread”: see Woolmington v The Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 at 481 per Viscount Sankey LC; and see Phipson on Evidence, 17th ed (2010) at 154 [6-09]. The rule is now embodied in s 141 of the Evidence Act 2008 (Vic) albeit, by s 8 of that Act, it does not affect the operation of any other Act.

ASIC v Sigalla (No. 4) [2011] NSWSC 62 (18 February 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/62.html

CONTEMPT – whether application to punish for contempt for disobedience of court’s orders were civil proceedings to which the Civil Procedure Act 2005 and Uniform Civil Procedure Rules apply – whether application is a proceeding for an offence and therefore a criminal proceeding and not a civil proceeding – whether proceedings were civil or criminal proceedings for purposes of the Evidence Act 1995 – held character of principal proceeding in which alleged contempt committed does not determine character of contempt proceeding – held proceedings for criminal contempt are proceedings for an offence but proceedings for civil contempt are not – distinction between civil and criminal contempt – held proceeding included charges of criminal contempt – held Uniform Civil Procedure Rules r 29.10 did not apply where no case to answer submission made

CONTEMPT – evidence – standard of proof – Witham v Holloway (1995) 183 CLR 525 displaced by Evidence Act – proof required beyond reasonable doubt because proceedings are criminal proceedings within definition in Evidence Act – principles in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inapplicable

CONTEMPT – orders restrained defendants from dealing with ‘their assets’ – whether orders restrained dealing with moneys not beneficially owned by the defendant – trust asset is property of trustee – beneficial interest not carved out of trust property leaving the trustee with a ‘bare legal title’ – ‘their assets’ includes assets held as trustee – Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695; [2000] 2 All ER 395 disapproved

CONTEMPT – ambiguity – orders restraining dealing with ‘their assets’ ambiguous – defendant not liable for contempt if breach not established on a reasonable view of what the orders prohibit – not proved beyond reasonable doubt that defendant beneficially entitled to moneys transferred – orders breached but contempt not established

CONTEMPT – proof of breach of court orders in relation to swearing affidavit of assets – genuine effort to comply – not proved beyond reasonable doubt that breach deliberate

Boonudnoon v The Queen [2002] WASCA 313 (22 November 2002)

http://www.austlii.edu.au/au/cases/wa/WASCA/2002/313.htm

Criminal law and procedure – Directions as to burden of proof – Direction as to drawing inferences from circumstantial evidence – Admissibility of evidence of out­of­court statements by accused – Need for direction about lies told by accused – Admissibility of evidence by police officer as to handwriting

Sentence – Importation of heroin – Alleged failure to properly consider applicant’s antecedents – Impact on offender of service of sentence in a foreign country

R v MRK [2005] NSWCCA 271 (4 August 2005)

[2005] NSWCCA 271

CRIMINAL LAW

Appeal

Against Conviction

s61JA of the Crimes Act 1900

Aggravated Sexual Assault in Company

Joint criminal enterprise

Where aggravating factor was use of offensive weapon, a knife

Whether sufficient evidence that Appellant was party to agreement to use knife

Whether open to jury to find element of aggravation

CRIMINAL LAW

Appeal

Against Conviction

s61JA of the Crimes Act 1900

Aggravated Sexual Assault in Company

Joint criminal enterprise

Directions to Jury

Whether erroneous

Whether adequate

Whether onus of proof properly stated

Whether verdicts reasonable

R v Kaldor [2004] NSWCCA 425 (29 November 2004)

[2004] NSWCCA 425

Conviction appeal

importation of heroin concealed in guitar

sufficiency of evidence of knowledge

circumstantial case

whether verdict unreasonable

indictment

accused charged as accessory

Crown case actually that he was principal using innocent agent

indictment not amended

whether allegation that agent was principal offender mere surplusage

effect of Criminal Code

sentence appeal by Crown

sentence manifestly lenient

offender resentenced

R v MM [2000] NSWCCA 78 (24 May 2000)

[2000] NSWCCA 78

CRIMINAL LAW AND PROCEDURE – Sexual assault – Evidence – Cross-examination of complainant – Complainant accused of fabricating evidence – Complainant cross-examined to demonstrate motive – Complainant’s evidence “why would I make a story up …” and “why would I be sitting in this court room … wasting all these people’s time …” – Accused not cross-examined to demonstrate absence of motive – What, if any, direction to jury called for or permissible.

CRIMINAL LAW AND PROCEDURE – Sexual assaults – Evidence – Similar facts – Admissibility – Relationship evidence – Tendency evidence – Prior sexual acts between complainant and accused – Evidence Act 1995 ss 97, 101 – What direction to jury as to use of evidence called for

R v Niass [2005] NSWCCA 120 (4 April 2005)

[2005] NSWCCA 120

Whether open to jury to reject the version given by the accused – whether open to jury to be satisfied beyond reasonable doubt that the accused was guilty – whether a Liberato direction was required – relevance of absence of Liberato direction to quality of evidence before jury.

R v Plevac [1999] NSWCCA 351 (28 October 1999)

[1999] NSWCCA 351

Criminal Law And Procedure – Murder – Circumstance – Motive – Relationship Evidence Concerning Victim And Appellant – Content Of Charge To Jury – New Evidence – Psychiatrist’s Opinion Of Fear Of Fire – Victim Killed By Incineration – Letter Claimed To Be Written By Deceased – Deliberately Withheld On Advice Of Senior Counsel – Content Of Letter Does Not Indicate Miscarriage In Any Event

REGINA v CHAMI, M SKAF, GHANEM, B SKAF [2004] NSWCCA 36 (7 April 2004)

[2004] NSWCCA 36

Criminal law – sexual offences – refusal to order separate trial – late disclosure of witness statement of co-offender – identification issues – directions as to consciousness of guilt – prosecutor’s comment on accused’s failure to give evidence – directions on standard of proof – “beyond reasonable doubt” should not be enlarged upon – complainant’s reliability – directions about lies – whether verdicts unreasonable.

Evidence Act, ss 20(2), 44, 135, 137

R v Southammavong; R v Sihavong [2003] NSWCCA 312 (31 October 2003)

[2003] NSWCCA 312

CRIMINAL LAW – murder – malicious wounding with intent to inflict grievous bodily harm – direction to jury – burden and standard of proof – definition of “beyond reasonable doubt” – where jury sought clarification on meaning of standard – where trial judge repeated earlier direction – whether trial judge erred by failing to address jury request

R v Zaiter [2004] NSWCCA 35 (25 February 2004)

[2004] NSWCCA 35

CRIMINAL LAW – Supply of methylamphetamine and ecstasy with knowledge – Intermediate fact that was an indispensable basis for an inference of guilt – Where trial judge did not give a direction that such fact must be proved beyond reasonable doubt – PRACTICE AND PROCEDURE – Whether a new trial should be ordered – Probability that Crown would run the case in a different manner – Whether a reasonable jury would be able to return a verdict of guilty.

Puchalski v Regina [2007] NSWCCA 220 (23 July 2007)

[2007] NSWCCA 220

Malicious shooting with intent to do grievous bodily harm and maliciously discharge loaded arms with intent to do grievous bodily harm – Circumstantial case – Was appellant the shooter – Jury acting reasonably entitled to be satisfied beyond reasonable doubt of guilt of accused – no necessity for Shepherd direction – Committal deposition of subpoenaed witness who went overseas very shortly before trial without notifying Crown or police correctly admitted pursuant to s 65 of Evidence Act – Correct construction of “not available to give evidence” in s 65(1) and “all reasonable steps” in cl 4(1)(e) of Pt 2 of Dictionary – Exercise of discretion under s 192 – Correct refusal of adjournment of trial.

Mah v R; R v Mah [2006] NSWCCA 226 (27 July 2006)

[2006] NSWCCA 226

CRIMINAL LAW AND PROCEDURE

MURDER

DIRECTIONS TO JURY ON MOTIVE

MOTIVE NOT RELIED ON AS PROOF OF GUILT BUT IN SUPPORT OF TESTIMONY OF ACCOMPLICE

NO ERROR SHOWN

LEAVE TO CROSS EXAMINE WITNESS NOT MAKING GENUINE ATTEMPT TO GIVE EVIDENCE

FINDING BY TRIAL JUDGE

NO REQUIREMENT OF CONTEMPORANEITY BETWEEN EVENTS AND MAKING OF STATEMENT UPON WHICH WITNESS CROSS EXAMINED

DIRECTIONS ON TELLING OF LIES NOT ERRONEOUS

SENTENCE

OFFENDER AND VICTIM BOTH AGED 17

ASSESSMENT WITHIN DISCRETIONARY RANGE

JCS v R; JMS v R; R v JCS; R v JMS [2006] NSWCCA 221 (26 July 2006)

[2006] NSWCCA 221

CRIMINAL LAW

unlawful imprisonment

appeal against conviction

joint and several offences

validity of indictment for unlawful imprisonment

common law offence

inconsistencies in complainant’s evidence

whether open to the jury to accept complainant’s evidence

whether necessary to be against the will of the complainant

meaning of constraining and restraining

directions on element of intent

relevance of complainant’s state of mind

whether direction on drawing of inferences necessary

whether directions correctly addressed actions of an individual not part of the joint criminal enterprise

parental discipline

whether evidence available on each separate count was adequately distinguished from evidence not available

EVIDENCE

whether document, which the complainant had not adopted, ought to have been admitted

re-examination of the complainant

CRIMINAL LAW

unlawful imprisonment

Crown appeal against sentence

objective gravity

general deterrence

unusual offence

whether mitigating factors were ‘double-counted’

special circumstances

parental difficulties as mitigating factors

complainant’s age and condition as aggravating factors

impact of periodic detention

discretion not to intervene

Imnetu v R [2006] NSWCCA 203 (30 June 2006)

[2006] NSWCCA 203

CRIMINAL LAW

APPEAL AGAINST CONVICTION

murder

joint criminal enterprise

circumstantial case

directions on inferences

directions given by way of example

exact words ‘hypothesis consistent with innocence’ not used

exact words ‘only rational inference’ not used

whether miscarriage of justice resulted from Crown comments on offender’s good character

comments indicating that the jury could place less weight on offender’s good character

CRIMINAL LAW

APPEAL AGAINST SENTENCE

whether error in assessment of culpability

whether offence correctly assessed as being above the mid-range of seriousness

level of involvement in the joint criminal enterprise

whether planning and offence committed in company were aggravating factors

Burrell v R [2007] NSWCCA 65 (16 March 2007)

[2007] NSWCCA 65

CRIMINAL LAW
appeal
criminal trial
murder
evidence
burden of proof
assessment by jury
indispensable intermediate facts
essential intermediate fact
circumstantial evidence
whether to be satisfied beyond reasonable doubt of each fact from which inference of guilt to be drawn

CRIMINAL LAW
reasonable hypothesis consistent with innocence
hypothesis consistent with innocence must be more than mere speculation or conjecture
hypothesis consistent with innocence is reasonably possible
police investigation inadequate and capable of weakening Crown case
EVIDENCE
section 137
restricting cross-examination
admissibility of document for the truth of its contents
significant probative value
positive identification
danger of unfair prejudice
EVIDENCE
section 38
unfavourable evidence
unfavourable witness

TRIAL BY JURY
juror’s note
sanctity of jury room
finality of verdict
secrecy and confidentiality of jury deliberations inter se
irregularity in jury process
communications between jury and trial judge to be disclosed in open court
Black direction
reasonable apprehension or suspicion juror will not discharge task impartially
juror disqualification
juror bias
unsafe and unsatisfactory verdict
SENTENCING
appeal
murder
killing for financial gain
imprisonment for life
whether manifestly excessive

R v Chatzidimitriou [2000] VSCA 91 (25 May 2000)

[2000] VSCA 91

Criminal law – Murder – Proof beyond reasonable doubt – Charge unexceptionable – Jury question about meaning of standard – Dictionary made available without comment – Whether verdict assailable – Whether sentence of 22 years’ imprisonment, with minimum of 17 years, manifestly excessive.

Stevens v R [2005] HCA 65; (2005) 80 ALJR 91 (21 October 2005)

[2005] HCA 65

Criminal law – Unlawful killing – Murder – Accident – Counsel for defence requested direction on defence of accident at trial – Whether trial judge erred in declining to direct jury on defence of accident – Whether defence of accident open on the evidence – Whether jury should have been instructed that appellant could not be convicted unless prosecution had satisfied jury beyond reasonable doubt that the operation of s 23 of the Criminal Code (Q) had been excluded – Relationship between defence of accident and murder – Whether defence of accident inconsistent with conviction of murder – Relationship between defence of accident and manslaughter.

Criminal law – Unlawful killing – Manslaughter – Case left to jury on basis that only available verdicts were guilty or not guilty of murder – Whether manslaughter should have been left to the jury – Whether manslaughter was open on the evidence.

Criminal law – Conviction – Whether substantial miscarriage of justice occurred as a result of trial judge’s failure to give directions on accident.

Statutes – Statutory construction – Criminal Code (Q).

Words and phrases – “accident”, “event”.

Criminal Code (Q), ss 23, 24, 25, 289 and 668E(1A).

Murray v R [2002] HCA 26; 211 CLR 193; 189 ALR 40; 76 ALJR 899 (20 June 2002)

[2002] HCA 26

Criminal law – Homicide – Unlawful killing – Murder – Deceased died from gun shot wounds to chest – Whether shooting was an unwilled act or an event occurring by accident – What is “the act causing death” – Whether trial judge erred in failing to direct jury about unwilled acts – Whether it is for the jury to decide what is “the act causing death” – Whether trial judge’s failure to direct jury gave rise to a substantial miscarriage of justice so that a new trial should be ordered.

Onus of proof – Whether the trial judge erred in directions to jury about onus of proof – Whether trial judge’s direction to jury was apt to mislead the jury about the decision which was to be made.

Words and phrases – “act” – “event” – “accident”.

The Criminal Code (Q), s 23.

Liberato v R [1985] HCA 66; (1985) 159 CLR 507 (17 October 1985)

[1985] HCA 66

Criminal Law – Appeal from conviction – Misdirections in summing up found by court of criminal appeal – Appeal dismissed because no substantial miscarriage of justice – Special leave to appeal to High Court – Principles for grant – Burden of proof – Conflict between prosecution and defence witnesses – Invitation to jury to choose between witnesses – Need to tell jury that it must be satisfied beyond reasonable doubt of truth of prosecution evidence – Criminal Law Consolidation Act 1935 (S.A..), s. 353(1).

Gipp v R [1998] HCA 21; 194 CLR 106; 155 ALR 15; 72 ALJR 1012 (16 June 1998)

[1998] HCA 21

Criminal Law – Sexual offences – General evidence of history of sexual abuse – Whether evidence admissible as similar fact or propensity evidence – Whether admission of evidence amounted to a miscarriage of justice – Whether directions or failure to direct by trial judge as to use of that evidence amounted to a miscarriage of justice.

Criminal Law and Procedure – Nolle prosequi – Purported entry of nolle prosequi in respect of some but not all counts in indictment – Whether this procedural irregularity amounted to a miscarriage of justice – Whether leaving the evidence with respect to these charges before the jury amounted to a miscarriage of justice.

Appeal – Points and objections not taken below – Role of court of criminal appeal.

Words and phrases – “unsafe and unsatisfactory” – “miscarriage of justice”.

Dawson v R [1961] HCA 74; (1961) 106 CLR 1 (23 November 1961)

[1961] HCA 74

Criminal Law – Evidence – Cross-examination of accused – Questions tending to show previous convictions of accused – “Nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution” – Denial by accused of making admissions to police – Crimes Act 1958 (Vict.), s. 399 (e) (ii).

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161; 201 ALR 1; 77 ALJR 1629 (5 September 2003)

 [2003] HCA 49

Customs and excise – Prosecutions under Customs Act 1901  (Cth) and Excise Act 1901  (Cth) – Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901  (Cth) and Excise Act 1901  (Cth).

Practice and procedure – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether standard of proof a matter of “practice and procedure” in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) – Whether standard of proof within contemplation of rules governing “commencing, prosecuting or proceeding with” a prosecution – Whether statutory averment provisions affect question of standard of proof.

Federal jurisdiction – Supreme Court exercising federal jurisdiction in respect of “Customs prosecutions” and “Excise prosecutions” under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether s 79 Judiciary Act 1903 (Cth) “picks up” any State law prescribing standard of proof to be applied – Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles.

Criminal law – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Standard of proof – Common law requirements where conviction sought for offence against a law of the Commonwealth – Significance of orders sought in prosecution proceedings – Meaning of “conviction” – Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary.

Words and phrases – “Customs prosecution”, “Excise prosecution”, “recovery of penalties”, “usual practice and procedure”, “commenced prosecuted and proceeded with”, “conviction”.

R v Tran [2003] ACTSC 53 (27 June 2003)

[2003] ACTSC 53

CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.

EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.

EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness -  Evidence Act 1995 , s 65.

EVIDENCE – availability of witness – whether witness not competent to give evidence about fact -  Evidence Act 1995 , s 65

Evidence Act 1995  (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary

Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373 (24 November 2006)

[2006] NSWCCA 373

CONSTITUTION – s 109 inconsistency – State and federal law – Financial Transaction Reports Act 1998 (Cth) and  Evidence Act 1995  (NSW) – standard of proof

CRIMINAL PLEADINGS – duplicity – uncertainty – whether prosecution case involved ambiguity or uncertainty

EVIDENCE – admissibility – identification evidence – photoboard selection – whether probative value outweighed by danger of unfair prejudice

EVIDENCE – admissibility – character evidence – adverse character evidence from re-examination of witness inadmissible – whether inappropriate for prosecution to comment on failure by defence to call character evidence

EVIDENCE – admissibility – handwriting evidence – whether change in expert evidence rendered it inadmissible – whether each reason for reaching the expert conclusion must be referrable to specialised knowledge – whether evidence inadmissible because sample for handwriting analysis was obtained in manner prejudicial to defendant

EVIDENCE – unfair prejudice –  Evidence Act 1995  (NSW) – ss 135, 136, 137

EVIDENCE – opinion – inference derived from primary facts – Evidence Act 1995 (NSW) – ss 76, 79

INSIDER TRADING – pleadings – uncertainty and duplicity – whether evidence conformed to pleadings – meaning of “likely”

INSIDER TRADING –– elements of offence – definition of information – whether inference can be drawn from conduct – whether inference need to be the only reasonable inference available

INSIDER TRADING – elements of offence – requirements for general availability –whether information as a whole was generally available if particular aspects of it was generally available

INSIDER TRADING – elements of offence – definition of “purchase” and “securities” – whether purchase of option contracts within definition

JURY DIRECTIONS – whether Shepherd direction required – whether any information, apart from the particularised elements in indictment, was indispensable – meaning of “likely” in indictment

STRUCTURING TRANSACTIONS – Financial Transactions Reports Act 1998 (Cth) – standard of proof in s 31(1)(b)

Evidence Act 1995  (NSW), ss 4, 8, 18, 20, 37, 38, 76, 79, 135, 136, 137, 141

HML v The Queen; SB v The Queen; OAE v The Queen [2008] HCA 16 (24 April 2008)

[2008] HCA 16

Criminal law – Evidence – Similar facts – Sexual crimes – “Uncharged acts” – Relevance – Admissibility – Applicability of test in Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.

Criminal law – Evidence – Similar facts – Standard of proof – Whether “uncharged acts” must be proved beyond reasonable doubt – Directions to jury.

Practice and procedure – Application to amend notice of appeal – Whether leave should be granted to amend notice of appeal to raise issue of admissibility of evidence, to which no objection was taken at trial.

Words and phrases – “context”, “guilty passion”, “propensity evidence”, “relationship evidence”, “relevance”, “similar fact evidence”, “uncharged acts”.