http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/118.html

CRIMINAL LAW – appeal – sentencing – severity – plea of guilty – import marketable quantity of border controlled drug (heroin) – whether applicant was denied procedural fairness in that the sentencing judge failed to warn that he did not accept the uncontested evidence of duress – whether sentencing judge erred in failing to find that the applicant had acted under duress when he committed the offence for which he stood for sentence – Ground 1 made out – appeal allowed – matter remitted for further hearing in District Court

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/525.html

CRIMINAL LAW – murder – where offender pleaded guilty to manslaughter and was convicted by a jury of murder – offender’s participation in joint enterprise – where offender killed the deceased by strangulation – where offender a party to disposal and interference of the deceased’s body on two occasions – where defence of provocation rejected by the jury – whether evidence supported a finding of provocation as a mitigating factor

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/45.html

CRIMINAL LAW – Inquiry subsequent to conviction – applicant convicted of sexual assault offences – whether doubt or question as to guilt – reliability of evidence – where evidence based on dreams or flash backs – whether direction about unreliability of evidence required – whether breach of Prosecution’s duty of disclosure – Crimes (Appeal and Review) Act 2001, s 78.

http://www.austlii.edu.au/au/cases/act/ACTCA/2012/52.html

PRACTICE AND PROCEDURE – Appeals – where first instance decision delivered two years after conclusion of trial – circumstances in which open to appeal court to review findings of fact.

TORTS – Negligence – where plaintiff mentally ill and wielding kendo stick as weapon in public – where plaintiff shot by police officer – where plaintiff conceded police officer not negligent in discharge of weapon – whether duty of care owed by police to plaintiff – consideration of scope and application of police immunity from civil liability – whether breach of duty.

Held: Appeal allowed. The police did not owe the plaintiff a duty of care.

TORTS – Negligence – liability of statutory authority – whether ACT Mental Health owed duty of care to plaintiff – where plaintiff seen by ACT Mental Health for purposes of determining possible involuntary detention under subs 37(2) of Mental Health (Treatment and Care) Act 1994 (ACT) – where plaintiff not admitted to approved health facility – characterisation of duty of care – whether ACT Mental Health under duty to exercise statutory power to detain – whether breach of duty.

Held: Appeal allowed. ACT Mental Health owed the plaintiff a duty of care to follow up mental health assessment; however, ACT Mental Health did not breach this duty.

http://www.austlii.edu.au/au/cases/cth/FCA/2012/788.html

1. The Commonwealth and Peter Slipper, who are the respondents in these proceedings, filed interlocutory applications last month seeking orders pursuant to r 26.01 of the Federal Court Rules 2011 (Cth) that judgment be given against James Ashby, the applicant, because the proceeding against each of them, relevantly, was an abuse of the process of the Court and or vexatious or alternatively that the proceedings be permanently stayed on that footing.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/97.html

CRIMINAL LAW – appeal – conviction – whether misdirections in summing up to jury – evidence – whether verdict unreasonable or unsupportable on evidence – Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b)
CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – standard non-parole period – consideration of Muldrock – significance of appellant’s intellectual disability – Criminal Appeal Act 1912, s 5D(1)
CRIMINAL LAW – appeal – procedure – sentencing hearing – order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act – no direction in accordance with s 4(2)(a) that law of evidence applied – costs order set aside

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/458.html

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

http://www.austlii.edu.au/au/cases/cth/FCAFC/2011/95.html

PRACTICE AND PROCEDURE – Appeal from an interlocutory decision of Logan J to stay proceedings indefinitely – whether witness voluntarily giving evidence by video-link from overseas breaches nation’s sovereignty in the absence of permission from that nation – sovereignty and comity – where a respondent in the proceedings is also the subject of criminal proceedings in another nation and currently released on bail – where position of foreign nation regarding the taking of evidence by video link from that respondent unclear – where uncertain whether position of the foreign nation will ever be clarified in the future – where party may become unable to give evidence in the future if convicted in criminal proceedings in that foreign jurisdiction

Evidence Act 1995 (Cth) ss 4(1), 21

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2011/227.html

ADMINISTRATIVE LAW – judicial review – procedural fairness – whether Consumer, Trader and Tenancy Tribunal denied applicants procedural fairness in giving no weight to expert report on basis of non-compliance with Makita v Sprowles principles – whether Tribunal denied applicants procedural fairness in excluding one applicant from hearing room while her husband was being cross-examined – whether excluded applicant was denied a reasonable opportunity to be present and participate in the proceedings on second hearing day

ADMINISTRATIVE LAW – judicial review – relief sought in the nature of certiorari – whether Consumer, Trader and Tenancy Tribunal made factual findings in the absence of any evidence to support those findings

EVIDENCE – principle in Jones v Dunkel – whether failure to call available party eyewitness relevant to assessment of evidence of another party eyewitness who was called

http://www.austlii.edu.au/au/cases/tas/TASSC/2011/23.html

Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Relevant factors – Other matters – Use of victim impact statement to make a finding of fact.

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/74.html

APPEAL AND NEW TRIAL – appeal – appeal from Children’s Court – principle upon which appeal to be decided.

CRIMINAL LAW – sentencing – sentencing of juveniles – principle of individualised justice – how it is to be considered.

CRIMINAL LAW – sentencing – sentencing of Aboriginal offenders – principles in R v Fernando (1992) 76 A Crim R 58 – development of those principles in Director of Public Prosecutions (Vic) v Terrick (2008) 24 VR 457.

CRIMINAL LAW – sentencing – sentencing of persons with mental disabilities – principles to be applied.

Evidence Act 1995 (Cth), s 4(2)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/8.html

CRIMINAL LAW – Appeal against sentence – Appeal by Crown – Whether sentencing judge erred in making factual findings on the circumstances of the offence – Whether offender was provoked by the victim – Whether sentencing judge failed to take into account the need for personal and general deterrence – Whether no special circumstances found for departing from the statutory ratio between the non-parole period and the balance of sentence – Whether sentence is manifestly inadequate – Whether inappropriate for sentence to be served by periodic detention.

68 Neither of the parties applied to the Court below for, and the Court did not make, a direction that the law of evidence applied to the sentencing proceedings. Accordingly, the provisions of the Evidence Act 1995 did not apply: s 4(2)(a) Evidence Act .
69 Although the accounts which I have set out in paragraphs 66 and 67 are hearsay, the judge was nevertheless entitled to have regard to them. However, the question of the weight to be allocated to these accounts, was a matter which required careful attention.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/33.html

CRIMINAL LAW – APPEAL – offences involving conspiracy to import commercial quantities of a border controlled precursor – whether error in approach to assessing the evidence of remorse – whether error in fixing the non-parole period – whether error in relation to prospects of rehabilitation

Evidence Act 1995 (NSW)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1145.html

CRIMINAL LAW – Confiscation of criminal proceeds – Restraining orders – Ancillary orders – Necessity for reasons – New statutory regime for applications to set aside restraining orders.

Garling J
8 In considering the application, it was necessary to bear in mind the applicable legal principles.

9 An application for a restraining order is governed by the rules of evidence applicable in civil proceedings: s 5(2)(b) of the Act: International Finance Trust Company Limited v NSW Crime Commission [2008] NSWCA 291 at [9].

10 An application is an interlocutory one in character, governed by the Evidence Act 1995 as it applies to interlocutory proceedings: s 4(1)(b) and (c), Evidence Act 1995 ; International Finance at [9].

11 The Court has the power to dispense with the application of various provisions of the Evidence Act 1995 if there is a matter not genuinely in dispute, or else if the application of those provisions would cause or involve unnecessary expense or delay: s 190, Evidence Act 1995 ; s 9, Criminal Assets Recovery Act 1990.

12 As well, the common law evidentiary rule which enabled the Court to exercise a power to dispense with the operation of the rule of evidence in an interlocutory proceeding remains: See Geoffrey W. Hill & Associates v King (1992) 27 NSWLR 228 at 230 per McLelland J; s 9, Criminal Assets Recovery Act 1990; International Finance at [13].

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/87.html

CRIMINAL LAW – child pornography offences – using a carriage service to access child pornography – section 474.19, Criminal Code Act 1995 (Cth).

CRIMINAL LAW – child pornography offences – possession of child pornography – section 65, Crimes Act 1900 (ACT).

SENTENCING – material provided from different reports on the accused – issue as to whether accused expressed remorse for his actions – turns on its own facts.

SENTENCING – psychological report on the accused – prosecution critical of psychological report due to the lack of psychological testing, based on Psychologist opinion, self-reporting from accused and lack of corroboration.

SENTENCING – consideration of mental health of the accused at time of offence and present mental health of the accused – turns on its own facts.

Evidence Act 1995 (Cth) s 4(2)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/737.html

CORPORATIONS – examination of officers and others – written record of examination – to what extent admissible in evidence to prove facts stated – EVIDENCE – admissibility – hearsay – where deponent repeats in current affidavit statements made in an earlier affidavit – whether excluded by hearsay rule – EVIDENCE – admissibility – proceedings by company against director alleging breach of duty – whether defendant thereby exposed to penalty relevant to admissibility of evidence – EVIDENCE – admissibility – written record of examination – application of hearsay rule – statutory exception in Corporations Act

Evidence Act 1995 (Cth), s 4
Evidence Act 1995 , ss 4, 56, 59, 69(1), 69(2), 69(3), 91, 135

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/7.html

CRIMINAL LAW – Bail – jurisdiction to hear application for bail – new information and change in circumstances relevant to grant bail – s 43 Bail Act 1992 (ACT)
CRIMINAL LAW – Bail – criteria for grant bail – cash surety – applicant desire to undertake drug rehabilitation – no offences of a serious nature – no indication of an increasing seriousness of offences – no indication that applicant is unlikely to be able to resolve criminal habits with appropriate support.
CRIMINAL LAW – Bail – surety – cash provided by surety from own resources.
PRACTICE AND PROCEDURE – Bail – Evidence and information – facts asserted from counsel – ss 4.8 Evidence Act 1995 (Cth), s 19(6) Bail Act 1992 (ACT).
PRACTICE AND PROCEDURE – completion of bail form – need for reform of application form – need for applicants to complete form with information required.
PRACTICE AND PROCEDURE – adjournment of bail applications – need to adjourn if insufficient notice given of grounds of application.

Evidence Act 1995 (Cth) ss 4, 8

http://www.austlii.edu.au/au/cases/cth/AATA/2008/263.html

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for disability pension dismissed by Veterans’ Review Board – s 155AA notice sent to applicant – whether notice given to the applicant – notice not sent to applicant’s residential address – notice sent to an alternate address which applicant requested correspondence to be sent – notice not given to applicant – decision set aside

Evidence Act 1995 (Cth) ss 4, 5, 163

http://www.austlii.edu.au/au/cases/sa/SASC/2000/10.html

Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question – whether transcripts in question should be made available to the jury other than whilst the related tapes are actually being played over in court in the course of evidence – whether transcripts ought to be taken by the jury into the jury room whilst deliberating – whether permitting the jury to take the transcript into the jury room whilst deliberating would result in a situation in which the written transcripts may influence the deliberations of the jury in a way which was out of all proportion to their real weight – whether in practical terms, this could produce a situation in which the transcript might be regarded as in some way unduly strengthening what would otherwise be the purely oral/audio material and the oral evidence – consideration of proper exercise of judicial discretion in circumstances. IN GENERAL Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question.

“Status of transcripts

13 In considering the issue advanced by the accused it is necessary, at the outset, to direct attention to the evidentiary status, if any, of the transcripts here in question.

14 As appears from the judgment in Eastman v The Queen (1997) 76 FCR 9, transcripts of this type will attract the provisions of s 48 (1) (c) of the Evidence Act 1995 (Cth) in certain cases. However, this provision is not applicable in the instant case, by reason of ss 4 and  5  of that statute. It operates only in relation to proceedings in a federal court or in an ACT court; and also certain specified types of proceedings in other Australian Courts. This is not a proceeding of that class.

15 The status of the transcripts therefore falls to be determined by reference to the principles of the common law.”

http://www.austlii.edu.au/au/cases/tas/TASSC/2001/124.html

Blow J

Criminal Law — Evidence — Judicial discretion to admit or exclude evidence — Illegally obtained evidence — Particular cases — Records and returns as to fish catches — Whether discretion available.

Ridgeway v R (1995) 184 CLR 19

R v Swaffield (1998) 192 CLR 159

Nicholas v R (1998) 193 CLR 173, referred to.

Aust Dig Criminal Law [426]

Criminal Law – Jurisdiction, practice and procedure – Warrants, arrest, search, seizure and incidental powers – Search warrants – Generally – Susceptibility to collateral challenge – Misrepresentation to issuing officer – Matters relevant to trial judge’s discretion to exclude evidence.

Murphy v R (1989) 167 CLR 94;

Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, distinguished.

Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542;

Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149;

R v Grassby (1988) 15 NSWLR 109, referred to.

Aust Dig Criminal Law [623]

http://www.austlii.edu.au/au/cases/act/ACTSC/2009/172.html
BAIL – review of refusal of bail in Magistrates Court – applicant charged with threat to kill – applicant convicted of offence of violence in previous 10 years – presumption in favour of bail “does not apply” – Bail Act 1992 (ACT), s 9B – unique provision – onus lies with applicant, though prosecution must be heard.
HUMAN RIGHTS – factors relevant to grant of bail – Bail Act 1992 (ACT), s 22 – relevance of right to liberty – Human Rights Act 2004, s 18 (ACT) – presumption of innocence and interests of the accused – balanced against attendance at trial and “future risk” to the community – refusal of bail for “future risk” tantamount to “preventative detention” – policy of mandatory arrest in family violence matters – management of mental health and strict bail conditions held to mitigate risk.
EVIDENCE – assessment as to risk must be based on more than mere suspicion – court may consider any “information” it considers “relevant and reliable” – Bail Act 1992 (ACT), s 19(6).

[2000] FCA 377

MIGRATION – application for protection visa – notification of decision of Minister given by registered pre-paid mail – notification not in fact received by visa applicant until some months later – postal article inadvertently misplaced at post office – whether notification in that manner is notification under reg 2.16(1) by sending notice of decision to visa applicant’s address – whether notification deemed by reg 5.03 to have been received seven days after it was dated – whether application for review within time prescribed by s 412 and reg 4.31.

MIGRATION – Migration Regulations – s 412 provides for time within which application for review of decision of Minister to be prescribed – reg 4.31 prescribes time limits for such applications – reg 5.03 deems notification of Minister’s decision to have been received seven days after it was dated in certain circumstances – whether reg 5.03 may operate to abridge time periods prescribed by reg 4.31 – whether reg 5.03 may operate effectively to nullify right of review granted by s 412 –whether reg 5.03 valid exercise of regulation making power.

Evidence Act 1995 (Cth) ss 4, 160, 160(1)

[2002] FCA 230

INTELLECTUAL PROPERTY – patents – pre-grant opposition to patent – “appeal” against decision of delegate of Commissioner of Patents that opposition to grant was unsuccessful – nature of proceeding before Court – extent to which expert evidence admissible

INTELLECTUAL PROPERTY – patents – “manner of manufacture” – whether claims lacked quality of inventiveness to be a manner of manufacture

INTELLECTUAL PROPERTY -patents – novelty – definition of “prior art base” – appropriate date at which prior art should be taken for assessment of novelty

INTELLECTUAL PROPERTY – patents – priority date – whether claim is fairly based on matter disclosed in a priority document – whether “real and reasonably clear disclosure” of matters claimed in patent application

INTELLECTUAL PROPERTY – patents – obviousness – inventive step – boundaries of “common general knoweldge”

INTELLECTUAL PROPERTY – patents – whether complete specification failed to define the invention

EVIDENCE – definition of “a fact in issue in the proceeding”

WORDS & PHRASES – “manner of manufacture”, “prior art base”, “real and reasonably clear disclosure”, “common general knowledge”, “a fact in issue in the proceeding”

Evidence Act 1995 (Cth) ss 4, 55(1), 56, 135, 140

[2000] NSWSC 521

EVIDENCE – client legal privilege – waiver – whether inadvertent production of privileged document constitutes waiver – question of admissibility at final hearing – common law inapplicable

Evidence Act 1995 (NSW) ss 2, 4, 118, 122

[2000] NSWSC 354

Stated Case

appeal against Magistrate’s decision

Legal Profession Act 1987

power of costs assessors

whether negligence of solicitors can be raised before costs assessor

Anshun principle in context of a cross claim

Evidence Act 1995 – ss 4(1), 21

[2002] NSWSC 1061

Corporation – winding up. Application under s564 of the Corporations Act by creditor who granted indemnity and provided funds for liquidator to conduct examinations under Part 5.9.
Held: Litigation in the first limb of s564(a) included examinations under Part 5.9. A cause of action is property within the second limb of s564(a) which may be preserved so long as there has been a settlement of the cause of action and the proceeds recovered.

[2002] NSWSC 1086

Extradition – Extradition proceedings before magistrate – review – supporting documents – warrant – dual criminality – extradition objections

[2004] NSWSC 500

CORPORATIONS – winding up in insolvency – statutory demand – statutory demand served by post to old address on the day before a notice of change of address of registered office took effect – whether service effective

Evidence Act 1995 (Cth) ss 4, 160

[2007] NSWCA 354

EVIDENCE – presumption of delivery in course of post – relationship of Evidence Act 1995 (Cth) to other Acts – Evidence Act 1995 (Cth), ss 160 and 163

NOTICE – service by post – letter from Commonwealth agency – evidence of non-delivery or non-receipt – Acts Interpretation Act 1901 (Cth) s 29 – Income Tax Assessment Act 1936 (Cth) s 222AOF – Evidence Act 1995 (Cth) ss 160 and 163

TAXATION – liability for failure to remit tax withheld from salary entitlements – Income Tax Assessment Act 1936 (Cth) s 222AOE

WORDS & PHRASES – “contrary intention” in statute – “give”, “serve”, “send” a notice – “sending it by post”

[<i>Evidence Act</i>] 1995 (Cth), ss 4, 5, 160, 163, 182

[2002] NSWCCA 373

Sentencing – assistance to authorities – statement given to authorities on promise would not be used against offender – tendered in sentencing hearing – what was evidentiary regime for ruling on admissability – whether admissible over objection of the offender – whether admissible on basis that could not be used against offender – whether admitted on that basis – whether error in misuse against offender – whether insufficient discount for assistance to authorities – whether resistance to use of statement could be taken into account against offender – offender resentenced.

[2006] TASSC 73

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Not bound by the rules of evidence – Evidence improperly or illegally obtained – Discretion to exclude evidence.

Forensic Procedures Act 2000 (Tas), s46.

Evidence Act 2001  (Tas), ss3, 4, 8, 138.

Medical Practitioners Registration Act 1996 (Tas), ss50(12), 51(1), Sch5, cl 1(b).

R v The War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482; Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82, referred to.

Aust Dig Professions and Trades [189]

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Nature of proceedings.

Medical Practitioners Registration Act 1996 (Tas), ss49E, 51.

Dickens v The Law Society A42/1981; Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN NSW 136; Johns v Law Society of New South Wales (1982) 2 NSWLR 1; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366, referred to.

Aust Dig Professions and Trades [189]

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – Appeal by way of re-hearing from a statutory tribunal – Counsel’s failure to comply with client’s instructions – Miscarriage of justice.

Adamson v Pharmacy Board of Tasmania [2004] TASSC 32; Fernando v Medical Complaints Tribunal (No 2) (2003) Tas R 337; Fernando v Medical Complaints Tribunal [2004] TASSC 130; (2004) 12 Tas R 366; R v Birks [1987] NSWLR 667; TKWJ v R [2002] HCA 46; (2002) 212 CLR 124; Nudd v R [2006] HCA 9; (2006) 80 ALJR 614, referred to.

Aust Dig Appeal and New Trial [85]

[2000] FCA 1010

Evidence – public interest immunity – exclusion of matters of State – public interest in protecting confidential and restricted Aboriginal knowledge – public interest in not denying access to relevant evidence in the administration of justice -  Evidence Act 1995  (Cth), s 130

Constitutional Law – inconsistency – whether State law prohibiting the divulging of Aboriginal tradition in contravention of Aboriginal tradition inconsistent with the Commonwealth Evidence Act – Commonwealth Constitution s 109

Constitutional Law – whether laws of the Commonwealth otherwise provided – s 35 of the Aboriginal Heritage Act 1983 (SA) and Commonwealth Evidence Act – Judiciary Act 1903 (Cth), s 79

Evidence Act 1995  (Cth), ss 4, 8(1), 12, 48(4), 56(1), 130, 135, 142

[1998] HCA 9

Constitutional law – Separation of judicial power of the Commonwealth – Legislative response to Ridgeway v The Queen – Whether Parliament usurping judicial power – Whether legislation impermissibly specific in application – Integrity of judicial process – Retrospective operation of statute.

Evidence – Importation of prohibited drugs – “Controlled delivery” by law enforcement officer – Rationale for Ridgeway discretion to exclude evidence – Public policy.

[2009] ACTSC 42

CRIMINAL LAW – assault – domestic violence – sentencing – non-conviction order – s 17 Crimes (Sentencing) Act 2005 (ACT)

CRIMINAL LAW – sentencing – admissibility of evidence – s 4(2)  Evidence Act 1995  (Cth)

CRIMINAL LAW – sentencing – relevant considerations – s 33 Crimes (Sentencing) Act 2005 (ACT) – reasons for decision – use of victim impact statements

JUDICIAL REVIEW – refusal to adjourn to receive further evidence – denial of natural justice

Evidence Act 1995  (Cth) ss 4(1), 4(2), 190

[2006] NSWSC 1338

LEGAL PRACTITIONERS – appeal to Supreme Court from refusal by Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner – appeal by way of de novo hearing – role of Board on hearing of appeal – earlier criminal proceedings against Plaintiff for two alleged offences of perverting the course of justice contrary to s.319 Crimes Act 1900 – Plaintiff acquitted on one count and (following appeal) Crown determines not to proceed further on second count – approach to resolution of disputed factual issues on appeal – onus and standard of proof – whether Plaintiff made false statutory declaration and gave false evidence in 1996 wrongly claiming that she was driver of motor vehicle at time of red-light traffic offence – meaning of “good fame and character” – duty of candour on application for admission – finding on appeal that Plaintiff gave glaringly improbable evidence – held Plaintiff not of good fame and character and otherwise suitable for admission as legal practitioner

[2006] ACTSC 39

EVIDENCE – admissibility – assessment of damages for personal injury – clinical notes of treating medical practitioner – whether rendered inadmissible by Territory statute – whether Territory statute inconsistent with Commonwealth Act – Territory statute held ineffective to extent of inconsistency – notes admissible.

CIVIL AND POLITICAL RIGHTS – human rights – right to fair hearing – whether statutory provision rendering relevant evidence inadmissible compatible with right to fair hearing.

STATUTES – interpretation – Australian Capital Territory – whether provision of Territory statute inconsistent with Commonwealth Act – admissibility of evidence in personal injury action.

[2003] FCA 793

BANKRUPTCY – production of documents to trustee – where documents subject to claim for privilege against self-incrimination – whether privilege abrogated by provisions of the Bankruptcy Act 1966 (Cth) – extent of abrogation – obligations of trustee

BANKRUPTCY – proposed examination of bankrupt by trustee – privilege against self-incrimination – whether  Evidence Act 1995  (Cth) s 128 applies to examination under Bankruptcy Act 1966 (Cth) s 81

PRACTICE & PROCEDURE – privilege against self-incrimination – whether production of documents to trustee in bankruptcy abrogates privilege

PRACTICE & PROCEDURE – privilege against self-incrimination – proposed examination of bankrupt by trustee – whether  Evidence Act 1995  (Cth) s 128 applies to examination under Bankruptcy Act 1966 (Cth) s 81

WORDS & PHRASES – `other sufficient cause’

[1996] FCA 1478 (16 May 1996)

Criminal Law – sexual offence – necessity to warn jury – whether evidence uncorroborated – observations in respect of operation of the  Evidence Act 1995  (Cth) ss 164 and 165

Criminal Law – whether verdict unsafe or unsatisfactory – relevance of delay in complaint – whether a doubt must or ought to have been experienced by the jury

Evidence Act 1995  (Cth) ss 4(1), 164, 165
Evidence (Transitional Provisions and Consequential Amendments) Act 1995 s 4(1)

 [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