Category Archives: s. 004

Farkas v R [2014] NSWCCA 141 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/141.html

CRIMINAL LAW – appeal against sentence – ongoing drug supply – misapprehension of fact about applicant’s motivation – no evidence of financial gain – whether financial gain an element of the offence

EVIDENCE – finding as to ‘normal street purity’ of drug – use of other cases as evidence of fact – judicial notice – lack of clarity of fact in issue – lack of notice to offender

EVIDENCE – whether Evidence Act 1995 (NSW) applies in sentencing proceeding – what rules apply if Act does not apply – Evidence Act 1995 (NSW), s 4

PROCEDURAL FAIRNESS – judge relying on own enquiries about factual matter without notice to offender

WORDS AND PHRASES – “common knowledge” – Evidence Act 1995 (NSW), s 144

TS v Constable Courtney James [2014] NSWSC 984 (17 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/984.html

APPEAL – whether magistrate erred in admitting evidence of intercepted telephone calls – whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply

EVIDENCE – Evidence Act 1995 (NSW) applies to applications for a forensic procedure – Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act – laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of – meaning of reasonable grounds for suspicion or belief

Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 2) [2014] FCA 481 (13 May 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/481.html

EVIDENCE – Legal Professional Privilege – governing common law principles discussed – whether privilege attached to a copy of a document containing legal work carried out by a lawyer for the benefit of the client where the copy document (Report) was brought into existence for the purpose of being communicated to a third person – principles of waiver at common law discussed – whether disclosure to insurer of Report for the purposes of making a claim under a contract of insurance effected a waiver of privilege – whether disclosure to insurer inconsistent with the confidentiality purpose protected by the privilege – rationale for litigation privilege discussed – whether insurer and insured had commonality or disparity of interests – whether inconsistency arose because privileged material disclosed to a third party without adequate restrictions preserving confidentiality – whether agreement as to confidentiality may be implied – whether by reference to the objective purpose for the provision of the Report it must have been objectively understood that the contents of the Report may pass into the public domain – contextual circumstances including the marking of Report as “Privileged and Confidential” considered – waiver found as disclosure was inconsistent with the maintenance of the confidentiality which the privilege was intended to protect – whether waiver avoided because of common interest privilege – whether waiver also effected by selective disclosure to respondents of most of Report.

R v Hadchiti (No 3) [2014] NSWSC 257 (18 March 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/257.html

CRIMINAL LAW – sentence – murder – serious offence – objective seriousness – high moral culpability – planning -aggravating factors – use of weapon – offence committed in company – mitigating factors – no record of prior convictions – prior good character remorse and prospects of rehabilitation and not re-offending not established – deterrence – personal circumstances – no special circumstances – victim impact statement – custodial sentence imposed

R v Gittany (No 5) [2014] NSWSC 49 (11 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/49.html

CRIME – sentence – murder – intention to kill formed quickly and in a state of rage – no planning or premeditation – no remorse – impossibility of assessing likelihood of re-offending or prospects of rehabilitation in light of offender’s refusal to accept responsibility for his offending – evidence of good character – whether of any weight where referees blind to or ignorant of any wrongdoing by offender – whether high level of media attention a relevant mitigating factor

R v Stenberg [2013] NSWSC 1858 (13 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1858.html

CRIMINAL LAW – sentence – murder – guilty plea – mutilation – nature and seriousness of offence – accounts given to psychiatrists – alcohol use – aggravating factors – mitigating factors – record, character, re-offending and rehabilitation – planning – remorse – remorse not taken into account by way of mitigation – mental illness – offender’s personal circumstances – comparable cases – discount – no special circumstances – victim impact statements – sentence imposed

McWhirter v Dunlop; Tran v Harris [2013] VSC 697 (13 December 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/697.html

APPEAL FROM MAGISTRATES’ COURT —Exceeding speed limit in breach of r 20 Road Safety Road Rules 2009—Defendant failed to appear — Preliminary brief served— Charge heard and determined ex parte — Whether informant’s statement in preliminary brief sufficient— Use of speed detector device— Sufficiency of evidence— Error in finding sentencing facts – ss 27, 37, 80, 84 Criminal Procedure Act 2009 (Vic), s 79(1) Road Safety Act 1986 (Vic), reg 20 Road Safety Road Rules 2009 (Vic), reg 41, 45, 46 Road Safety (General) Regulations 2009

LK v Commissioner of Police& Anor [2011] NSWSC 458 (20 May 2011)

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

Shea v TruEnergy Services Pty Ltd (No 5) [2013] FCA 937 (5 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/937.html

PRACTICE AND PROCEDURE –– production sought during trial of draft expert reports and expert’s correspondence with solicitors – whether client legal privilege subsisted and if so waived – relevant provisions of Evidence Act 1995 (Cth) and applicable legal principles – call for production too late – moreover, evidence indicated that documents had client legal privilege which was not waived

22. The present case is not governed by common law principles of legal professional privilege but rather is governed by the Evidence Act (see s 4(1) of that Act).

Jamieson Andrew Santos v The State of Western Australia [2013] HCASL 123 (14 August 2013)

http://www.austlii.edu.au/au/cases/cth/HCASL/2013/123.html

The applicant has filed a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). He contends that s 109 of the Constitution is engaged because of alleged inconsistencies between the Evidence Act 1906 (WA) and the Evidence Act 1995 (Cth), which he appears to contend should have applied at his trial. By force of s 4(1), the Evidence Act 1995 (Cth) did not apply in the applicant’s trial. No constitutional matter arises.

Cherdchoochatri v R [2013] NSWCCA 118 (20 May 2013)

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

R v Mathew Aquilina [2013] NSWSC 525 (10 May 2013)

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

SKAF Bilal – Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 45 (12 March 2013)

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.

The Australian Capital Territory v Crowley, The Commonwealth of Australia and Pitkethly [2012] ACTCA 52 (17 December 2012)

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.

Ashby v Commonwealth of Australia (No 3) [2012] FCA 788 (20 July 2012)

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.

Badans v R [2012] NSWCCA 97 (17 May 2012)

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

LK v Commissioner of Police& Anor [2011] NSWSC 458 (20 May 2011)

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

Australian Crime Commission v Stoddart [2011] HCA 47 (30 November 2011)

http://www.austlii.edu.au/au/cases/cth/HCA/2011/47.html

Evidence – Privilege – Spousal privilege – Witness summonsed pursuant to s 28(1) of Australian Crime Commission Act 2002 (Cth) (“Act”) to give evidence regarding “federally relevant criminal activity” involving her husband – Witness declined to answer examiner’s questions by claiming spousal privilege – Whether spousal privilege exists at common law and, if so, whether spousal privilege extends to non-curial proceedings – If spousal privilege exists at common law, whether Act restricts or abrogates spousal privilege.

Words and phrases – “compellability”, “competence”, “spousal privilege”.

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (formerly SC Land Richmond Pty Ltd) & Ors [2011] VSC 406 (26 August 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/406.html

Client legal privilege – subpoenas

19 The plaintiff submitted that the initial response to progress payment claims was merely contract administration and fell within the ambit of administration of the trust. However, in light of the transmission of 5 May 2006 it is not possible to characterise the resolution of the claims as anything other than an anticipated or pending Australian proceeding. Albeit that by virtue of s 4, the Evidence Act applies to all proceedings in a Victorian court as defined by the dictionary, s 9 sets out that the Evidence Act does not affect the operation of common law “except so far as this Act provides otherwise expressly or by necessary intendment.” Accordingly, I am not constrained to conclude that disputes with respect to progress claims not heard in a Victorian court are necessarily excluded from either the common law principles of legal professional privilege nor the statutory principles of client legal privilege.

Lahoud v Lahoud [2011] NSWSC 994 (1 September 2011)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/994.html

COSTS – Interest on costs – rate of interest – UCPR 36.7(1) – earlier order that interest be paid “at the rates set out in Schedule 5″ UCPR – effect of repeal of Schedule 5 and amendment of r 36.7(1) – rate at which interest payable prior to 1 July 2010 – proper construction of order

COSTS – Interest on costs – time during which interest runs – earlier order reserving consideration of whether costs should continue to run – whether power to make order denying interest over past periods – power to make order denying interest over future periods – whether delay that makes it just for the successful parties not to receive interest on costs for a particular time – delay in preparing bill of costs before High Court special leave application determined – delay while Review Panel reviewed cost assessor’s assessment – delay while appeal from Review Panel to District Court was on foot

COSTS – Effect of the entitlement to an input credit for GST on extent of indemnity –

COSTS – failure of costs assessor to disclose costs agreement between other party and solicitor – client legal privilege – procedural fairness

Joyce v Sunland Waterfront (BVI) Ltd [2011] FCAFC 95 (19 August 2011)

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

Chand v Azurra Pty Ltd (in liquidation) [2011] NSWCA 227 (5 August 2011)

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

TM v Karapanos and Bakes [2011] ACTSC 74 (12 May 2011)

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)

R v Stunden [2011] NSWCCA 8 (11 February 2011)

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.

Aon Risk Services Australia Limited v Australian National University [2010] ACTCA 28 (29 November 2010)

http://www.austlii.edu.au/au/cases/act/ACTCA/2010/28.html

PRACTICE AND PROCEDURE – whether a decision by a single judge of the Court not to rule certain evidence inadmissible one year before the trial is an “interlocutory order” within s 37E(4) of the Supreme Court Act 1933 (ACT) and thus susceptible to an application for leave to appeal from that decision before final judgment is delivered – in the circumstances of the present case, the decision of the primary judge not to exclude evidence in advance of the trial held not to be “an interlocutory order” within s 37E(4) – application for leave to appeal incompetent – even if, contrary to the Court’s conclusion, the application for leave to appeal in the present case was competent, leave to appeal should be refused – application dismissed with costs

Evidence Act 1995 (Cth), s 4, s 192A

NSW Crime Commission v Shane John Meads [2010] NSWSC 1145 (11 October 2010)

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].

R v Freestone [2010] ACTSC 87 (20 August 2010)

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)

Fodare Pty Ltd v Shearn [2010] NSWSC 737 (6 July 2010)

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

Re an application for bail by Merritt (No.2) [2010] ACTSC 7 (8 January 2010)

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

Goulding and Principal Member of the Veterans’ Review Board and Repatriation Commission (Party Joined) [2008] AATA 263 (2 April 2008)

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

R v BURNS & ORS (No 6) No. SCCRM-99-85 [2000] SASC 10 (28 January 2000)

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.”

R v Turner (No 14) [2001] TASSC 124

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]

In the matter of an application for Bail by Breen [2009] ACTSC 172 (31 December 2009)

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).

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 377 (4 April 2000)

[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)

E I Dupont de Nemours & Company v Imperial Chemical Industries PLC [2002] FCA 230 (12 March 2002)

[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

Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd [2008] FCA 369 (26 February 2008)

[2008] FCA 369

EVIDENCE – admissibility of evidence – affidavit sworn by solicitor of party and read by it as evidence in earlier interlocutory proceeding – subsequently at trial, affidavit sought to be adduced as evidence of admission by solicitor’s client – whether, for the purposes of s 87(1)(a) of Evidence Act 1995 (Cth), solicitor had authority to make admission on client’s behalf – whether representations in solicitor’s affidavit constituted an ‘admission’ – whether hearsay rule did not apply pursuant to s 81(1) of Evidence Act – whether, for purposes of definition of ‘previous representation’ in Evidence Act, earlier interlocutory proceedings were same proceedings as the trial within meaning of ‘the proceeding in which evidence of the representation is sought to be adduced’

Held: Each representation was made with client’s authority and constituted an ‘admission’ – ‘the proceeding’ in Evidence Act definition of ‘previous representation’ is the particular hearing before the particular judge and does not extend to other hearings or phases in the conduct of a matter, including any interlocutory proceeding, in which the parties have been engaged prior to that hearing

WORDS AND PHRASES – ‘admission’, ‘previous representation’, ‘in the proceeding in which evidence of the representation is sought to be adduced’, ‘judge’

Evidence Act 1995 (Cth), ss 3 (and Dictionary), 4, 81(1), 82(b), 87(1)(a), 88

DCT v Currockbilly [2002] NSWSC 1061 (12 November 2002)

[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.

Deputy Commissioner of Taxation v Meredith [2007] NSWCA 354 (10 December 2007)

[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

R v Bourchas [2002] NSWCCA 373 (2 October 2002)

[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.

Fuller & Anor v Resource Management and Planning Appeal Tribunal [2009] TASSC 51 (21 July 2009)

http://www.austlii.edu.au/au/cases/tas/TASSC/2009/51.html

Administrative Law – Judicial review – Grounds of review – Generally – No evidence ground advanced under the cover of an improper exercise of power ground.
Judicial Review Act 2000 (Tas), ss17(2)(e) and 20(b).
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, applied.
Aust Dig Administrative Law [1028]

Martin v Medical Complaints Tribunal [2006] TASSC 73 (6 October 2006)

http://www.austlii.edu.au/au/cases/tas/TASSC/2006/73.html

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]