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
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
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.
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.
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.
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
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
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”.
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.
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
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
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
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.
Legal professional privilege-Principles-Onus of an assertion of legal professional privilege-Scope of legal advice extends to what prudently and sensibly should be done in the relevant legal context
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)
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.
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)
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
CRIMINAL LAW – Confiscation of criminal proceeds – Restraining orders – Ancillary orders – Necessity for reasons – New statutory regime for applications to set aside restraining orders.
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  NSWCA 291 at .
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 .
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 .
PRACTICE AND PROCEUDRE – s 40F Evidence (Miscellaneous Provisions) Act 1991 (ACT) – admission of audiovisual evidence of child sexual or physical assault complainants as evidence.
EVIDENCE – admissibility of audiovisual interview recording between child complainant and police officers recorded prior to commencement of s 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
STATUTORY INTERPRETATION – whether s 40F of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) gives prospective effect to facts or has retrospective operation – provisions give prospective operation to facts.
STATUTORY INTERPRETATION – whether Div 4.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) is inconsistent with the Evidence Act 1995 (Cth) – intention of legislature and context within which legislation operates – no inconsistency between the statutes.
Human Rights Act 2004 (ACT), s 22(2)(g)
Evidence Act 1995 (Cth), Pt 2.1, ss 4(5),(6), 8, 26, 66
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)
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
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
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
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.”
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 
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 
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).
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)
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
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
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
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
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.
Extradition – Extradition proceedings before magistrate – review – supporting documents – warrant – dual criminality – extradition objections
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
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
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.
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  HCA 33; (1990) 170 CLR 321, applied.
Aust Dig Administrative Law 
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  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 
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  TASSC 130; (2004) 12 Tas R 366, referred to.
Aust Dig Professions and Trades 
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  TASSC 32; Fernando v Medical Complaints Tribunal (No 2) (2003) Tas R 337; Fernando v Medical Complaints Tribunal  TASSC 130; (2004) 12 Tas R 366; R v Birks  NSWLR 667; TKWJ v R  HCA 46; (2002) 212 CLR 124; Nudd v R  HCA 9; (2006) 80 ALJR 614, referred to.
Aust Dig Appeal and New Trial 
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
TRUSTS – application for judicial advice by trustee – parties given notice under s 63(4) of the Trustee Act 1925 (NSW) – whether parties given notice are entitled to privileged legal opinion obtained by trustee and provided to Court – no entitlement to privileged material
JUDICIAL ADVICE – application under s 63 of the Trustee Act 1925 (NSW) – whether proceedings adversarial – proceedings non-adversarial
PRIVILEGE – legal professional privilege –legal opinion obtained by trustee to assist court in application for judicial advice – privilege covers legal opinion in its entirety – privilege not abrogated by rules of natural justice –whether implied waiver by placing legal opinion before court – no waiver
Evidence Act 1995 (NSW) ss 4(1), 118, 122 Pt 3.10 Div 1
EVIDENCE – Privilege – Legal professional privilege or client legal privilege – Exceptions – Whether displaced in protective proceedings – Opinion evidence – Whether admissible if based on privileged communications – Protected reports
COURTS AND JUDGES – Appeal – Objection to evidence not taken below – Whether can be taken on appeal
PROFESSIONS – Lawyers – Duties to client – Privilege – Duty of confidence – Conflict of interests – Lawyer believes client incapable of giving rational instructions – Whether lawyer can take protective proceedings against client – Whether lawyer can use or disclose confidential information in such proceedings. D.
Evidence Act 1995 ss.4, 9, 119-122, 126A, 126B, 132, 134, 135
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.
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
PATENTS – appeal under s 60(4) of the Patents Act 1990 (Cth) against the Commissioner’s decision on an opposition to a grant of patent – whether tender of evidence as to the Commissioner’s decision, including the material on which it was based, inadmissible in the trial in this Court – whether Evidence Act 1995 (Cth) applies to such evidence – nature of opposition proceeding before the Commissioner – nature of appeal under s 60(4) of the Patents Act – effect of s 160(a) of the Patents Act – effect of O 58 r 8 of the Federal Court Rules – admissibility of evidence at the trial governed by Evidence Act 1995 (Cth)
EVIDENCE – admissibility of evidence as to the Commissioner’s decision and the material on which it was based – whether evidence as to the Commissioner’s decision irrelevant – whether evidence as to the material on which the Commissioner’s decision was based inadmissible as hearsay – evidence about the Commissioner’s decision relevant as jurisdictional fact and as the opinion of a person with technical expertise – this evidence and material on which the Commissioner’s decision was based is admissible under the Evidence Act 1995 (Cth)
PRACTICE AND PROCEDURE – whether leave to appeal against evidentiary ruling ought to be granted – case raises a matter of public importance – leave granted
Evidence Act 1995 (Cth) ss 4(1), 8(1), 9(1), 48(1)(b), 56(2), 59, 60, 76, 77, 79, 140, 190(3)(b)
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
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.
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’
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)
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