http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/445.html

Opinion evidence – UCPR 31.22 – expert fails to disclose contingency fee and agreement to defer fees – assumptions not set out – expertise.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/346.html

CRIMINAL LAW – Appeal by DPP pursuant to Part 5 of the Crimes (Appeal and Review) Act 2001 – matter dismissed pursuant to s 32 of Mental Health (Forensic Provisions) Act 1990 – insufficient reasons contained in judgment – appeal allowed – matter remitted to Local Court

http://www.austlii.edu.au/au/cases/cth/FCA/2013/293.html

PRACTICE AND PROCEDURE – injunction sought to stay inspection of documents seized under search warrant – applicant claimed irremediable prejudice – assessment of strength of case on appeal – balance of convenience

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/42.html

CRIMINAL LAW – grant of stay – Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) – scope of s 25A of the Australian Crime Commission Act 2002 (Cth) – whether dissemination might prejudice a fair trial.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination of transcripts resulted in a fundamental defect in the trial process – exercise of discretion – whether a permanent stay justified.

CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination resulted in a fundamental defect in the trial process – inference as to use of transcripts by CDPP – whether material justified inference.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1384.html

APPEAL – appeal against Local Court decision against dismissal of five court attendance notices – appeal upheld – failure to give adequate reasons – whether his Honour erred in excluding disputed evidence – whether his Honour erred in dismissing 5 court attendance notices – residential centres – power of entry – construction of s 25 of the Youth and Community Services Act 1973 – exclusion of the disputed evidence – orders – costs

EVIDENCE – admissibility – discretionary exclusion of evidence

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/53.html

APPEAL AND NEW TRIAL – Appeal against conviction – Evidence of “illegal search” – No search – No illegality – Appeal ground dismissed.

APPEAL AND NEW TRIAL – Appeal against conviction – Whether trial miscarried – Failure to discharge jury after evidence adduced – Crown witness deliberately raised prejudicial character evidence – Police witness – Circumstantial case – Crofts v The Queen –Evidence to be considered in context – Appeal ground upheld.

APPEAL AND NEW TRIAL – Appeal against conviction – Trial miscarried – Davies v The King – No basis for recording an acquittal – Conviction quashed – New trial ordered.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1441.html

CRIMINAL LAW – Evidence – application on voir dire to exclude improperly obtained evidence – domestic homicide – electronically recorded interview with accused – whether improperly obtained – whether police reckless as to accused’s physical state at time of interview – intoxication – fatigue – failure of interviewing officers to inspect custody management records noting accused’s intoxication – whether evidence obtained in consequence of impropriety.

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

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

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/1597.html

CRIMINAL LAW – application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 – applicant convicted in 1999 for murder – prior petition to Governor rejected – asserted fresh and new evidence – re-agitation of matters raised at trial – no doubt or question as to guilt

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1133.html

EVIDENCE – Admissibility of evidence – s 138 of the Evidence Act 1995 (Cth) – whether documents obtained as result of impropriety – unnecessary to rule on documents available to applicant through other sources – rulings on objections to remaining documents deferred

http://www.austlii.edu.au/au/cases/tas/TASSC/2012/59.html

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Illegally obtained evidence – Particular cases – Whether breach of Forensic Procedures Act 2000 – DNA sample taken from 13 year old as a volunteer – No agreement with the Commissioner of Police regarding period for retaining the DNA – No delegated authority – Gravity of the contravention.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1034.html

1. I reject the defence application to exclude under s.138 Evidence Act 1995 evidence of the prior inconsistent statement made by Mr. Moody on 1st of May 2011 as set out in Exhibit VD5;

2. I allow the defence application that I re-open and reconsider my ruling under s.38 of the Evidence Act made on 30th August 2012;

3. I confirm my previous ruling in the following terms:

Under s.38 of the Act I give leave to the Crown to cross-examine Mr. Moody on answers given to questions 363 to 438 recorded in the record of interview made on 1st May 2011, with the exception of question and answer 419.

I direct that Mr. Moody may be cross-examined on the basis of the audio/visual recording made contemporaneously with that interview, but the recording of segments of it shown the jury are to include question and answer 37, appearing on pages 5 to 7 of the transcript.

4. I revoke the condition previously expressed of that grant of leave that I provide a direction to the jury in accordance with s.165 of the Evidence Act.

Catchwords:

CRIMINAL LAW – evidence – Evidence Act – application to cross examine – s38 – application to exclude evidence – s138 – application for direction under s 165 – leave to cross examine granted – s 138 application refused – warning not necessary – matters within jurors ordinary experience.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1008.html

APPEAL – appeal from Local Court decision – defendant charged with possession of restricted substance contrary to Poisons and Therapeutic Goods Act 1966 – defendant acquitted by Local Court – police attended premises in response to complaint of domestic violence – seized goods from defendant’s bedroom – whether Magistrate applied incorrect principles and failed to exercise discretion under Evidence Act 1995, s 138 – relevant statutory provisions under Law Enforcement (Powers and Responsibilities) Act 2002 – relevant common law principles – statutory interpretation – statute excludes common law and provides own regime – application to facts – all grounds fail – summons dismissed

http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/125.html

DEFENCE AND WAR – charges of indecency – applicant convicted on seven counts before General Court Martial (GCM)– appeal from GCM to Defence Force Discipline Appeals Tribunal (Tribunal) – appeal on a question of law from Tribunal to the Court – grounds – whether Tribunal erred in failing to find substantial miscarriage of justice – prosecutor’s final address at trial said to be prejudicial – direction made by Judge Advocate to jury – direction itself said to be prejudicial – any prejudice to applicant negatived – irregularity in proceeding at GCM not tantamount to miscarriage of justice – no error of law – grounds not made out – whether Tribunal erred in failing to find that Judge Advocate erred when directing Panel on s 67 of Crimes Act 1900 (ACT) – directions on law sufficient for Panel to dispose of real issues – ss 60 and 67 of the Crimes Act 1900 (ACT) not inconsistent – no error of law – ground rejected – whether Tribunal erred in failing to find that convictions were unreasonable because inconsistent with acquittals – open to Panel to conclude to requisite standard that applicant guilty – independent examination of evidence by Tribunal – open to Tribunal to conclude that Panel could be satisfied to requisite standard that applicant guilty – ground rejected – whether Tribunal erred in failing to find convictions were wrong in law– ruling made by Judge Advocate on objections to charge sheet – offence under s 60 of Crimes Act 1900 (ACT) said to be unavailable – offence under s 33(c) of Defence Force Discipline Act 1982 (Cth) said to be equivalent – duplicity alleged – materially different offences – ground rejected – s 67 of Crimes Act 1900 (ACT) on consent said not to apply – s 67 need not be “picked up” – operation of s 67 not impermissible legislative interference with exercise of judicial power – not contrary to Ch III of Constitution – ground rejected – whether Tribunal erred in failing to find that Judge Advocate erred in failing to dissolve Panel after misconduct by prosecutor in closing address – no reversal of onus of proof – complaint not put before Tribunal – ground rejected – whether Tribunal erred in failing to find that Judge Advocate erred in admitting into evidence recording of police interview with applicant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error – ground rejected – offences subject of convictions said to be indictable offences – entitlement to trial by jury – ground rejected

COSTS – s 52 Defence Force Discipline Appeals Act 1955 (Cth) – not exhaustive statement of powers of the Court – general power of the Court to award costs available – s 43 Federal Court of Australia Act 1976 (Cth)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/2.html

DEFENCE FORCE DISCIPLINE APPEAL TRIBUNAL

DEFENCE AND WAR – charges of indecency – seven counts of indecency found by General Court Martial –appeal – grounds – prosecutor’s final address at trial prejudicial – direction made by Judge Advocate to jury – any prejudice to appellant negatived – grounds not made out – ruling made by Judge Advocate on objections to charge sheet – provision relied upon said to be unavailable – duplicity alleged – grounds not made out – provision of Crimes Act on consent said not to apply – ground not made out – Judge Advocate said to have erred in pre-trial ruling on the defence’s objection to a member of the panel – application was refused – said to be reasonable grounds for inferring ostensible bias – resulting in wrongful convictions and substantial miscarriage of justice and/or material irregularity – ground not made out – fraudulent misrepresentation of fact said to have occurred – error alleged in Judge Advocate’s directions to panel on whether or not complainant’s consent negatived – ground not made out – convictions said to be inconsistent with acquittals – found – open to panel to conclude to requisite standard that appellant guilty – ground rejected – conviction under Charge 22 said to be unreasonable and/or could not be supported by evidence – ground upheld – Charge 22 quashed – Charge 23 laid as alternative to Charge 22 – evidence supports this charge – conviction recorded and appellant sentenced to severe reprimand – recorded telephone conversation between complainant and appellant said to be inadmissible – Judge Advocate ruled that desirability of admitting evidence outweighed undesirability of admitting it – no error in exercise of discretion – ground not made out – admission of recording of police interview with appellant – part of interview referring to covert recording – admission of this part of interview said to be erroneous – no error found – ground not made out – appellant said offences subject of convictions were indictable offences – entitled to trial by jury – ground dismissed – Tribunal bound by authority requiring rejection of ground

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/394.html

ADMINISTRATIVE LAW – order in the nature of certiorari quashing the decision of a Children’s Court magistrate – alleged error in admitting expert report independently obtained by party without consent to assessment by all parties with parental responsibility. CHILDREN – care proceedings – whether expert report independently obtained by a party is admissible – whether consent of all persons with parental responsibility necessary – paramountcy of the interests of the children the subject of the proceedings – need to balance principle that probative evidence should be admitted against principle that evidence should not be admitted in contravention of the law – appropriate to consider the requirement that Children’s Court proceedings be conducted with as little formality and technicality as possible.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/469.html

CRIMINAL LAW – evidence – admissions – no electronic recording – s 281 Criminal Procedure Act 1986 – admissions made in Victoria – practice of Victorian police not to electronically record admissions in the field – whether following standard Victorian police practice a “reasonable excuse”

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/310.html

APPEAL FROM LOCAL COURT – appeal against order by Magistrate to dismiss proceedings – drive motor vehicle with high range prescribed concentration of alcohol – exclusion of improperly or illegally obtained evidence – whether Magistrate erred in law in refusing to exercise discretion under s 138 of Evidence Act – whether Magistrate failed to give proper account to factors required under s 138(3) of Evidence Act – whether Magistrate erred in disregarding very high blood alcohol reading indicated by certificate of analysis

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/19.html

Evidence – invalid search warrant

http://www.austlii.edu.au/au/cases/act/ACTSC/2012/7.html

CRIMINAL LAW – trial by judge alone – charges of burglary and theft – accused not guilty.

CRIMINAL LAW – evidence – expert evidence – evidence of DNA analysis – likelihood ratio – whether the probability of adventitious matters excludes a reasonable doubt – evidence shows a reasonable doubt.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1092.html

EVIDENCE – voir dire – illegal or improperly obtained evidence – where witness sought to be cross-examined on material that was derived from information obtained by an allegedly unlawful act – whether this derived evidence was admissible – where respondent not involved in impropriety – where taxation officers able refer to broad information base when making assessments or where assessments deemed lawful in Full Court proceeding – application of Pearce v Button discretion to admit evidence – cross-examination allowed to continue

Evidence Act 1995 (Cth) ss 26, 43, 138

http://www.austlii.edu.au/au/cases/cth/FCA/2011/1093.html

EVIDENCE – hearsay rule – exceptions – business records – whether documents met requirements in s 69(2) of the Evidence Act 1995 (Cth) – where documents obtained by employee of institution without permission of that institution – where employee had knowledge of record – keeping system – where documents had significant details concerning applicants’ activities and identity – documents met requirements of s 69 of the Evidence Act 1995 (Cth) – documents admissible

EVIDENCE – admissibility – improperly or illegally obtained evidence – whether documents illegally obtained – where manner in which documents obtained was contrary to Liechtenstein but not Australian law – where duty of confidence is not relevant factor – where respondent not party to manner in which documents obtained – documents not illegally obtained by respondent – documents admissible

Evidence Act 1995 (Cth) ss 69, 138,

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/198.html

CRIMINAL APPEAL – Section 5F Criminal Appeal Act 1912 – charge of murder – dismissal of application that evidence be excluded – and that proceedings be stayed – no right of appeal against ruling on evidence – should not be permitted to contest ruling in relation to appeal against refusal of stay – no arguable case of error in refusing stay – leave to appeal refused.

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/109.html

CRIMINAL LAW – trafficking in a controlled drug – possession – application for a permanent stay of proceedings – unreasonable delay – section 22(1)(c) of the Human Rights Act 2004 (ACT ) – delay of more than four years – lack of communication with prosecution – lack of resources – institutional delay – no right not to be tried following undue delay – determination of appropriate remedy – balancing exercise of prejudice to accused against societal interest in prosecuting offenders – permanent stay granted.

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/71.html

EVIDENCE – identification parades – refusal to take part in identification parade –requirements for effective refusal for Evidence Act 1995 ss 114 and 115 – no requirement for suspect to obtain legal advice – no requirement for suspect to be informed of all details of specific identification parade before refusal – refusal unless lawyer advises participation in identification parade is a refusal, not a conditional agreement.

EVIDENCE – picture identification evidence – digital photograph of suspect does not cease to be that photograph by being loaded onto a computer database, converted into “jpg” format, emailed, or copied into PowerPoint format, having its colour levels changed or having its pixelation or file size reduced or increased – photograph of suspect does not cease to be that photograph by reason of editing to remove an image of removable jewellery such as a small facial stud – no requirement for photograph used in identification process to show only the features specified by the witness.

EVIDENCE – identification processes – minor change in suspect’s appearance since offence was committed does not “protect” suspect from invitation to take part in identification parade or from use of photograph in photo board process.

Evidence Act 1995 (Cth), ss 114(1) and (2), 115, 137, 138(1)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/263.html

EVIDENCE – tender of a computer disk containing recordings of conversations made by using mobile telephone – whether s 138 of the Evidence Act 1995 (Cth) applies – whether contravention of s 5 Surveillance Devices Act 1998 (WA) – whether contravention of s 9 Surveillance Devices Act 1998 (WA) – exemptions held to apply – whether use of surveillance device in the public interest – no additional requirement to obtain publication order under s 31 Surveillance Devices Act 1998 (WA)

Evidence Act 1995 (Cth) s 48, s 138

http://www.austlii.edu.au/au/cases/act/ACTCA/2011/3.html

1. Mr Austin has been charged with trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT). Police found the cannabis at premises occupied by Mr Austin after a search at those premises pursuant to a search warrant issued by a Magistrate under s 187(2) of the Drugs of Dependence Act 1989 (ACT).

2. Before the primary judge, Mr Austin applied for an order that evidence obtained from the execution of the warrant be excluded. The only ground pressed on the application for leave to appeal from his Honour’s decision not to make such an order is that the manner of the execution of the warrant was improper.

3. Mr Austin asserts that the primary judge should have excluded the impugned evidence under s 138 of the Evidence Act 1995 (Cth) on the basis that it was illegally obtained. Mr Austin contends that the evidence was illegally obtained because the police did not make a prior announcement of their intention to enter the premises.

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/18.html

CRIMINAL LAW – application for stay of proceedings or exclusion of evidence of online procuring of child – US police officer posing as child introduced accused to Australian police officer also posing as child – whether police operation was inappropriately targeted because police knew who they were dealing with and how he was likely to behave – whether police officer incited, encouraged or induced commission of offence – whether police officer aided, abetted, counselled or procured commission of offence – whether police operation breached AFP National Guidelines – whether a controlled operation authority or an assumed identity authority required for police operation.

EVIDENCE – policy considerations in determining whether to admit evidence obtained through impropriety or contravention of law relate to the public interest in convicting and punishing criminals and in protecting the integrity of the administration of criminal justice – fairness to an accused is generally of no more than peripheral importance – no requirement to give criminals a sporting chance to avoid conviction or punishment.

http://www.austlii.edu.au/au/cases/cth/FCA/2011/30.html

INDUSTRIAL LAW – Termination of employment – Breach of Australian Public Service Code of Conduct – Unauthorised use of computer equipment – Whether certain prohibitions upon use contrary to right of privacy – Whether evidence of unauthorised use collected contrary to right of privacy – Privacy Act 1988 (Cth) s 16 – International Covenant on Civil and Political Rights Art 17

Evidence Act 1995 (Cth) s 138

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2010/2.html

EVIDENCE – admissibility of interview with police – conducted while appellant intoxicated – no caution administered – discretion to exclude illegally obtained evidence

CRIMINAL LAW – reasonable hypothesis consistent with innocence open on evidence – unreasonable or unsafe and unsatisfactory conviction recorded – defence of sudden or extraordinary emergency – unavailable to appellant – appellant may have taken steps to obviate threat

Evidence Act 1995 (Cth) ss 60, 81, 84, 138, 191

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html

ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.

Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/136.html

PRACTICE AND PROCEDURE – proper certification of affidavits relied upon by a represented party.

CRIMINAL LAW – search warrants – warrant authorising search of residential premises.

CRIMINAL LAW – nature and extent of search under the warrant – power of police under the search warrant to: use forcible entry without warning or announcement, search the residence, search any person on the residence and seize items not specified in the search warrant.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant – “exigent circumstances” unclear meaning in Australian law – “exigent circumstances” found to permit entry to premises to execute search warrant without prior announcement – application dismissed.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence collected during execution of search warrant due to improper execution of search warrant and seizure of items not specified in the search warrant – “exigent circumstances” exception includes the need to ensure evidence in the contemplation of the search warrant is not destroyed – application dismissed.

Evidence Act 1995 (Cth), s 138

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/792.html

EVIDENCE – voir dire – where plaintiff brought charges of contempt against defendant in respect of orders made under Corporations Act 2001 (Cth), s 1323 restraining the defendant from dealing with his assets – admissibility of evidence objected to under Evidence Act 1995, s 138 – where evidence obtained pursuant to notices issued by plaintiff purportedly under Australian Securities and Investments Commission Act 2001 (Cth), ss 19(2), 30, 33 or 37(9) – whether evidence improperly obtained pursuant to invalid notices – whether plaintiff had power to issue the notices to investigate contempt charges – whether plaintiff lawfully exercised its power to issue notices – scope of ASIC’s investigative powers – whether notice issued under s 19 invalid for failing to set out effect of s 68 – legislative requirements as to the form of notices under ss 30 and 33 – whether non-compliance with legislative requirements renders notices invalid – purpose of requiring notices to state the matter to which the request for production of documents relates – whether notices valid where issued for stated purpose even if also issued for unstated purpose – whether notices valid where did not truly state the matters to which the request for production of documents related – weighing up of desirability of admitting evidence against undesirability of admitting evidence obtained pursuant to invalid notices

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2010/483.html

Criminal law – trial – murder – objection to evidence being led of a conversation between the accused and police in which admissions are alleged to have been made – no recording made of conversation – whether “reasonable excuse” established by Crown pursuant to s 281 of the Criminal Procedure Act 1986 for not recording conversation – whether accused “refused” to have questioning electronically recorded – consideration of ss 85, 90 and 138 of the Evidence Act 1995

http://www.austlii.edu.au/au/cases/cth/FCA/2010/462.html

PRACTICE AND PROCEDURE – Application for extension of time within which to appeal from the Federal Magistrates Court – Where application for extension of time filed within the time allowed to appeal – Considerations relevant to exercise of discretion to extend time – Discretion exercised to refuse application in circumstances where proposed grounds of appeal not reasonably arguable

Evidence Act 1995 (Cth) s 138