Category Archives: s. 062

Lancaster v The Queen [2014] VSCA 333 (17 December 2014)

CRIMINAL LAW – Indecent acts with a child under 16 years, sexual penetrations of a child under 16 years, make threat to kill – Expert opinion evidence based upon representations in business records – Whether exclusion of business records productive of a substantial miscarriage of justice – Complainant exhibiting sexualised behaviour – Whether result of exposure to sexual conduct or sexual abuse – Risk of misattribution or transference – Whether judge erred in refusing leave under s 342 of the Criminal Procedure Act 2009 to cross-examine complainant – Appeal allowed.

CRIMINAL LAW – Tendency evidence – Sexual interest in complainant – Gentry (a Pseudonym) v The Queen [2014] VSCA 211, applied – Whether anti-propensity warning required – Grech v The Queen [1997] 2 VR 609, discussed – Grech directions qualified.

CRIMINAL LAW – Ostensible bias – Whether undue intervention in trial – Whether judge’s refusal to recuse himself gave rise to apparent bias – Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427, applied.

EVIDENCE – Business records – Files maintained by Department of Human Services and other cognate organisations – Expert opinion evidence based on facts recorded in files sought to be tendered by defence – Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 – Whether contents of files rightly excluded as hearsay – Procedure to be followed – Each entry in files relied upon in expert reports reviewed to determine whether that entry satisfies requirements of admissibility in s 69(2) – Whether representations by person who had personal knowledge of facts – Second-hand or more remote hearsay – Sections 62 and 69 of the Evidence Act 2008 .

Manning Motel Pty Limited v DH MB Pty Limited [2013] NSWSC 1582 (1 November 2013)

CONTRACT – Collateral Contract – Validity – Tripartite Collateral Contract – Whether consistency between collateral and principal agreements required – Finding of collateral contract requires that a representation made as an inducement to enter the principal contract to be intended as a promise
CONTRACT – Collateral Contract – Contract Collateral to a Lease does not necessarily have to be in, or evidenced by, writing notwithstanding a statutory requirement that the Lease be in, or evidenced by, writing.

SZQVM v Minister for Immigration and Citizenship [2013] FCA 5 (15 January 2013)

MIGRATION – appeal from order of Federal Magistrate dismissing application for judicial review of a decision of the Refugee Review Tribunal to affirm decision not to grant protection visa – whether Tribunal erred in placing no weight upon evidence of two emails received by appellant asserting risk of harm to appellant should appellant return to originating country, due to emails containing hearsay – whether Tribunal had opportunity to test evidence of emails and verify authenticity – whether Tribunal should and did so test – whether Federal Magistrate erred in finding evidence of emails was not in Tribunal’s possession prior to Tribunal hearing – whether Tribunal erred in placing little weight on evidence of witness, due to evidence containing hearsay – discussion of constitution, powers, operation, and treatment of evidence, by Tribunal

PRACTICE AND PROCEDURE – notice of contention sought to be filed beyond time limit prescribed by r 36.24 of the Federal Court Rules 2011 – where no explanation given for model litigant’s failure to comply with rules

ATV v Buxton [2012] TASSC 83 (11 December 2012)

Magistrates – Appeals and review – Tasmania – Motion to review – When remedy available – Need for error to be shown – Assertion that finding was unsafe and unsatisfactory.

Kelly v O’Sullivan [1995] TASSC 72; (1995) 4 Tas R 446, Dixon v Lusted [2010] TASSC 16, referred to.

Aust Dig Magistrates [270]

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Sufficiency of reasons.

Phillips v Arnold (2009) 19 Tas R 21, referred to.

Aust Dig Magistrates [274]

Goddard Elliott (a firm) v Fritsch [2012] VSC 87 (14 March 2012)

PROFESSIONAL LIABILITY – solicitors – property proceeding in Family Court of Australia – settled at door of court on terms overly generous to wife – action by husband for damages for lost opportunity – valuation, taxation and other evidence not prepared in time for hearing – instructions taken and acted on from client lacking mental capacity – whether solicitors should have known – whether breach of duty of care – whether breach of fiduciary duty – whether coercion – pre-hearing representations – whether in trade or commerce – whether misleading and deceptive conduct – advocates’ immunity – whether applicable – assessment of damages for lost opportunity – notional trial in Family Court – whether evidence of subsequent facts admissible – apportionment of damages between concurrent wrongdoers – rule in Jones v Dunkel – husband’s senior counsel not called by solicitor – whether senior counsel in camp of solicitor – affidavit of husband’s deceased father – whether admissible hearsay evidence – Fair Trading Act 1985 (Vic), s 9(1) – Wrongs Act 1958 (Vic), pt IVAA – Evidence Act 2005 (Vic), s 135.

R v AB [2011] ACTSC 204 (16 December 2011)

CRIMINAL LAW – trial by judge alone – incest – act of indecency – assault – alternative count of maintaining a sexual relationship with a young person – admissibility of statement of deceased mother of complainant – admissibility of evidence of other sexual activity of complainant – accused guilty on five counts – alternative count not considered.

Evidence Act 1995 (Cth) ss 51(1), 62(1), 65(2), 66(2), 108, 142(1)

United Dairy Power Pty Ltd v Murray Goulburn Co operative Co Ltd [2011] FCA 762 (6 July 2011)

TRADE PRACTICES – Application for interlocutory injunction –Respondent’s employees allegedly made representations that the applicant is in financial difficulty and unable to pay suppliers – Whether serious question to be tried – Whether balance of convenience favours the grant of interlocutory relief

EVIDENCE – Applicant relied on hearsay evidence – Whether double hearsay evidence admissible – Whether evidence should be excluded as unfairly prejudicial – Whether applicant required to prove damage

Evidence Act 1995 (Cth) ss 59, 62(1), 75, 135

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (8 April 2011)

CRIMINAL LAW – conviction appeals – joint trials of Appellants – all Appellants convicted of two murders (Lawford Street shooting) – firearm attack on suburban house from street – two occupants (Ziad Razzak and Mervat Nemra) killed – joint criminal enterprise – alleged to be part of feud between two groups – one Appellant (Darwiche) convicted at same trial of earlier offences of maliciously discharge loaded firearm with intent to cause grievous bodily harm (to Bilal Razzak) and shoot at a person (Farouk Razzak) with intent to murder (Yanderra Street shooting) – these offences also alleged to be part of feud – jury unable to agree upon verdict on further count against Darwiche of murder (of Ali Abdul Razzak) APPEAL – grounds by all Appellants claiming prejudice and a miscarriage of justice flowing from joint trial – no error in decision to hold joint trial of all Appellants for Lawford Street shootings – no error in decision to try Darwiche in same joint trial for earlier alleged shooting offences said to be part of feud – appropriate directions given to jury concerning use of evidence against each Appellant – jury reached verdicts impartially on evidence and in accordance with trial judge’s directions – no miscarriage of justice resulting from joint trial APPEAL – grounds challenging direction that evidence of one indemnified witness could support evidence of another indemnified witness – no error in direction APPEAL – claim by Darwiche that it was abuse of process for prosecution case to be based upon evidence of indemnified witnesses who received benefits – no application made at trial for stay on this basis – no proper basis for stay in any event – assessment of credibility and reliability of witnesses part of jury’s function – all evidence concerning indemnities and benefits placed before the jury – no miscarriage of justice APPEAL – grounds contending error in various respects during trial – no error demonstrated – no miscarriage of justice APPEAL – applications by two Appellants (Darwiche and El-Zeyat) for leave to add further grounds of appeal after hearing of appeal but before judgment delivered – suggested fresh evidence – approach to determination of application for leave – assessment of suggested fresh evidence – whether fresh and credible – whether likely in the context of the trial to cause jury to entertain a reasonable doubt about guilt of Darwiche or El-Zeyat – no miscarriage of justice – leave to add grounds refused

Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) [2009] FCA 1306 (13 November 2009)

[2009] FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.

PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.

PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.

Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A

Citibank Ltd v Liu; Abn Amro Bank Nv v Liu [2003] NSWSC 69 (20 February 2003)

[2003] NSWSC 69

EVIDENCE [118] – Documentary evidence – Statutory provisions as to statements in documents when direct oral evidence admissible – Where maker of statement not attending as witness – Evidence Act 1995 s 64 – Whether to call maker of statement would cause undue expense or undue delay or is not reasonably practicable.

Evidence Act 1995 ss 62 & 64

R v Suteski [2002] NSWCCA 509 (20 December 2002)

[2002] NSWCCA 509

CRIMINAL LAW – Appeal against conviction and sentence for murder – plea of not guilty – Crown appeal against leniency of sentence – Form 1 offences – obtain benefit by deception- exception to hearsay – ERISP evidence – admissibility of out of court statement where maker unavailable – statement against interest.

Evidence Act (NSW) 1995 ss 59 62, 65, 67, 135, 137, 165, 192

Vickers v R [2006] NSWCCA 60 (31 March 2006)

[2006] NSWCCA 60

appeal against conviction

maliciously inflicting grievous bodily harm

assault occasioning actual bodily harm

admission of evidence over objection

statement tendered at trial pursuant to s65(2)(b) and (c) of Evidence Act 1995

maker of statement unavailable to give evidence

objection taken on grounds of late notice and discretionary factors

no separate objection to content of evidence

whole of statement admitted

whether trial judge erred in admitting statement

– whether trial judge failed adequately to warn jury of the danger of relying on the evidence of the statement

directions to jury adequate to draw attention to any potential unreliability of statement, including those parts now held to have been inadmissible

hearsay provisions of the Evidence Act

exceptions to the hearsay rule

identification of previous representation

identification of what fact was intended to be asserted by previous representation

relevant evidence

evidence of out of court representation by one person cannot be given by out of court representation of another person

evidence of previous representations inadmissible

effect of admission of inadmissible evidence of previous representation

Criminal Appeal Rules, rule 4

whether appellant requires leave before being permitted to argue admissibility of previous representations as a ground of appeal

Criminal Procedure Act s68, s289

appellant waived right to committal hearing

proviso to s6 of the Criminal Appeal Act

admission of the inadmissible evidence would and should have had no significance in verdict

evidence properly admitted proves beyond reasonable doubt guilt of the offence

Evidence Act 1995 s55, s56, s59, s60, s62, s65, s66, s67, s81, s82, s135, s137, s165, s192

David Harold Eastman v the Queen [1997] FCA 548 (25 June 1997)

 [1997] FCA 548

Criminal Law – Practice and Procedure – appeal against conviction – miscarriage of justice – removal of disruptive accused from Court – right of accused to be present at trial – discretion of trial judge to revoke bail – entitlement of jury to have regard to behaviour of accused throughout trial – direction from trial judge

Bail – Revocation of during trial

Abuse of process – police surveillance of accused – whether surveillance affected capacity of accused to conduct trial

Evidence – Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged

Evidence – Whether fresh evidence not available at trial – whether sufficient to justify interference with verdict

Evidence – Whether evidence of good character of accused raised at trial – evidence in reply – appropriate use – discretion of Court – direction to jury

Evidence – Relevance and public interest immunity – accused denied access to prosecution documents – whether likely to be of assistance in answering prosecution case – whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt

Evidence – Identification evidence – admissibility – use to which hearsay evidence of non-identification could be put – evidence of voice identification – direction from trial judge – whether adequate – s.60  Evidence Act 1995  (Cth)

Evidence – Disputed confessions – admissibility of tape recordings – s.84 Evidence Act 1992 – transcript – discretion to admit – procedure adopted by trial judge in presenting evidence of recorded material to jury

Evidence – Witnesses – cross-examination – need to cross-examine on case on which reliance to be placed – rule in Browne v Dunn – criminal proceedings – parts of defence case not put – application to criminal proceedings – unrepresented accused – consequences of failure to observe rule – inferences to be drawn – appropriate direction

Evidence Act 1995  (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192

R v David Harold Eastman [1995] ACTSC 59 (22 June 1995)

[1995] ACTSC 59

Evidence – criminal law – hearsay – murder – admissibility of conversation regarding alleged murder weapon – witness deposing as to representations said to have been made by a person to alleged vendor of the weapon and subsequently related to witness – representation that person would return with money to purchase the weapon – admissibility under the  Evidence Act 1995  (Cth) – availability of firsthand hearsay exception in s.65 of Division 2 of Part 3.2 of the Act – definition of “previous representation” for the purposes of Division 2 – unavailability of exception in relation to secondhand hearsay.

Evidence – criminal law – hearsay – murder – admissibility of conversation regarding alleged murder weapon – representation that person would return with money to purchase the weapon – admissibility under the  Evidence Act 1995  (Cth) – prima facie inadmissible as secondhand hearsay – relevance to state of mind or as evidence of an arrangement – evidence inadmissible for this purpose.

Evidence Act 1995  (Cth), ss. 59, 62, 65, clause 4 of Part 2 of the Dictionary.

R v Nguyen [2008] ACTSC 40 (7 May 2008)

[2008] ACTSC 40

PRE-TRIAL RULING – admissibility of evidence – hearsay – hearsay exception –  Evidence Act 1995  (Cth) – evidence of received telephone calls – contemporaneous representations – state of mind evidence – admission for a non hearsay purpose – probable and reliable representation test
Evidence Act 1995  (Cth), ss 60, 62, 65(2), 66, 72, 136

Director of Public Prosecutions v Nicholls [2001] NSWSC 523 (22 June 2001)

[2001] NSWSC 523

Lawful arrest – whether necessary to intend to take suspect before a justice – effect of Part 10A, Crimes Act 1900, exercise of discretion to exclude evidence under s 138  Evidence Act 1995 – meaning of “reckless”- Identification – photograph identified long after observation – whether witness’ evidence of prior identification by him is hearsay – applicability of ss 59, 62 of the  Evidence Act 1995