Category Archives: s. 103

R v Smith [2014] NSWSC 768 (20 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/768.html

CRIMINAL LAW – procedure – witnesses – cross-examination – CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; s 103(1) – leave to adduce evidence in cross-examination of criminal convictions; application for – otherwise contrary to Evidence Act 1995; s 102 – credibility rule – five dishonesty offences – reliability and credibility of witness

Rich v The Queen [2014] VSCA 126 (20 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/126.html

CRIMINAL LAW – Conviction – Murder – Armed robbery – Application for new trial – Fresh evidence – Whether evidence available at time of trial with reasonable diligence – Whether evidence credible – Whether evidence might have led jury to different verdict – Gallagher v R [1986] HCA 26; (1986) 160 CLR 392, applied; R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259; R v Nguyen [1998] 4 VR 394, referred to.

JURY – Empanelment – Whether constitution of jury vitiated by order of judge that members of first, discharged, jury return to panel whence second jury subsequently selected – Whether selection of panel corrupted by informant assisting in handing out of documents – R v Gallagher [1998] 2 VR 671, considered; Juries Act 2000, s 30(4); Juries Regulations 2001, regs 5 and 10.

EVIDENCE – Hearsay – Whether evidence of co-offenders’ out-of-court statements admissible as evidence of acts in furtherance of joint criminal enterprise – Whether evidence ought to have been excluded in exercise of discretion – Tripodi v R [1961] HCA 22; (1961) 104 CLR 1; Ahern v R [1988] HCA 39; (1988) 165 CLR 87, applied; R v Christie [1914] AC 545, referred to.

EVIDENCE – Unreliable witness warnings – Whether judge failed to warn sufficiently of risks of relying on evidence of co-offenders – R v Strawhorn [2008] VSCA 101; (2008) 19 VR 101, applied; DPP (Vic) v Faure [1993] VicRp 87; [1993] 2 VR 497; Jenkins v R [2004] HCA 57; (2004) 79 ALJR 252, referred to.

MURDER – Statutory felony murder – Common purpose – Manslaughter – Whether applicant or co-offender shot deceased – Whether sufficient case of manslaughter to be left to jury – Whether applicant believed his and co-offender’s weapons to be unloaded – Whether applicant foresaw possibility that other weapons could be fired – R v Galas [2007] VSCA 304; (2007) 18 VR 205; Brown v R [2006] NSWCCA 395, applied; R v Vandine [1970] 1 NSWR 252; Johns v R [1980] HCA 3; (1980) 143 CLR 108, considered; Gilbert v R (2000) 201 CLR 414; Gillard v R [2003] HCA 64; (2003) 219 CLR 1; Dupas v R [2010] HCA 20; (2010) 241 CLR, 237, distinguished – Crimes Act 1958 (Vic), s 3A.

CONSTITUTIONAL LAW – Unlawfully obtained evidence – Documentary evidence seized under warrant issued on faith of affidavit not sworn or declared in accordance with ss 100 and 103 of Evidence Act 1958 – Whether evidence admissible – Whether s 5 of Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 inconsistent with Charter right to fair trial – Whether repugnant to Kable principle – Whether requiring court to turn blind eye to police impropriety – Momcilovic v R (2011) 245 CLR 1; Nicholas v R [1998] HCA 9; (1998) 193 CLR 173, applied; Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51; Fardon v AG (Qld) [2004] HCA 46; (2004) 223 CLR 575, distinguished; Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54; Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19, considered – Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012, s 5; Charter of Human Rights and Responsibilities Act 2006, s 24.

TRIAL – Fair trial – Whether Crown in breach of obligation to call witness in interests of justice – Whether witness so lacking in credibility as to justify prosecutor’s decision not to call him – Diehm & Anor v R [2013] HCA 42; (2013) 303 ALR 42, applied; R v Apostilides [1984] HCA 38; (1984) 154 CLR 563, referred to.

AGGREGATE OF ERRORS – Whether judge’s refusal of multiple applications for discharge of jury productive of miscarriage of justice – R v Boland [1974] VicRp 100; [1974] VR 849; Crofts v R [1996] HCA 22; (1996) 186 CLR 427, applied.

DENIAL OF DUE PROCESS – Whether judge’s refusal to grant applicant access to sections of subpoenaed documents productive of miscarriage of justice – Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & Ors [2011] VSC 3; Woolworths Ltd v Svajcer [2013] VSCA 270, referred to.

VERDICT – Whether unreasonable – Whether evidence sufficient to sustain finding of guilt beyond reasonable doubt.

SENTENCING – Validity of proceedings – Double punishment – Whether judge made sufficient allowance for criminality common to murder and armed robbery – Whether judge erred in taking into account quashed or spent conviction – Pearce v R [1998] HCA 57; (1998) 194 CLR 610, applied; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, referred to.

Applications for leave to appeal against conviction and sentence dismissed.

R v ST (No 2) [2014] ACTSC 52 (28 February 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/52.html

CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or exclude Evidence – Evidence of sexual activities of the complainant admissible only by leave of the Court – Exceptions to the credibility rule – Application to admit evidence of cross-examination of the complainant in relation to allegations by the complainant that she was the subject of the same sexual activities committed by her paternal grandfather as those she claimed she had been subjected to by her father – Leave given to adduce evidence of the complainant about alleged sexual activities with her paternal grandfather

The Legal Practitioner v Council of The Law Society of The Act [2014] ACTSC 50 (28 March 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/50.html

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal to Appeal Division of ACT Civil and Administrative Tribunal – appeal removed into Supreme Court – nature of appeal in Supreme Court.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – whether permitting Law Society to amend charges deprived appellant of procedural fairness – whether Law Society was a model litigant – whether Law Society misled ACT Civil and Administrative Tribunal about nature and significance of amendments – no breach of procedural fairness – no misleading of Tribunal – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – admissibility of credibility evidence arising in cross-examination of appellant about peripheral aspects of separate matter also subject of charges brought by Law Society – admissibility of prejudicial credibility evidence – whether credibility findings should be set aside – whether ACT Civil and Administrative Tribunal misunderstood cross-examination – whether Tribunal misled by Law Society about significance of cross-examination – whether Law Society sought to mislead Supreme Court about significance of cross-examination – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – challenge to factual findings of ACT Civil and Administrative Tribunal – whether evidence to support factual findings – whether Tribunal obliged to accept appellant’s evidence of his state of mind at relevant times – whether Tribunal inconsistent in treatment of witnesses cross-examined without access to relevant documents – no error in Tribunal’s conclusions – appeal dismissed.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/4.html

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Col v R [2013] NSWCCA 302 (3 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/302.html

CRIMINAL LAW – appeal against conviction – offence of causing grievous bodily harm with intent to cause grievous bodily harm – appellant threw methylated spirits onto bed where victim lay and ignited bedclothes – victim retracted earlier statement to police – whether trial judge erred in admitting into evidence complainant’s statement to police – whether use of victim’s statement to police resulted in miscarriage of justice – whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice – whether Zoneff direction was required – whether verdict is unreasonable or cannot be supported having regard to evidence – appeal dismissed

GEDEON Gilbert v R [2013] NSWCCA 257 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/257.html

CRIMINAL LAW – appeal against conviction – two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW – inconsistency between State and Commonwealth laws – whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – gravity of impropriety or contravention – evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 – authority subsequently held to be invalid.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE – witness – cross-examination on voir dire – privilege – self-incrimination – whether answers would tend to prove an offence against a law of a foreign country – proof of foreign law – whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW – sentencing – parity principle.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/984.html

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Doolan v R [2013] NSWCCA 145 (3 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/145.html

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found

CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence

R v XY [2013] NSWCCA 121 (22 May 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/121.html

APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] VSCA 328 – whether material difference between approaches

EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence

EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)

EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)

STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts

Dale v Clayton Utz (a firm) [2012] VSC 577 (29 November 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/577.html

LEGAL PRACTITIONER – Barrister – Application to restrain senior counsel from acting for defendant in this proceeding – Application brought under inherent jurisdiction and to enforce duties of confidence and loyalty – Whether leave to cross-examine deponents required – If so, whether leave should be granted – Leave granted on a limited basis

King v Benecke [2012] NSWSC 1012 (31 August 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1012.html

PRACTICE & PROCEDURE – subpoena – application to set aside – whether documents sought potentially likely to assist materially on an identified issue – whether legitimate forensic purpose identified

PRACTICE & PROCEDURE – notice to produce – application to set aside – whether documents sought potentially likely to assist materially on an identified issue – whether legitimate forensic purpose identified

Scott Alan May v Regina [2012] NSWCCA 111 (31 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/111.html

CRIMINAL LAW – appeal – conviction – evidence – whether verdict unreasonable on evidence
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – whether misdirection in summing up to jury – whether extended joint criminal enterprise alternative should have been left to jury
CRIMINAL LAW – appeal – conviction – whether misdirection in summing up to jury – whether evidence capable of verifying key witness’s account
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – whether manslaughter alternative should have been left to jury

DPP v Kocoglu [2012] VSC 185 (9 May 2012)

http://www.austlii.edu.au/au/cases/vic/VSC/2012/185.html

CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.

Li v Chief of Army [2012] ADFDAT 1 (16 March 2012)

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/1.html

Defence Force Discipline Appeal Tribunal

MILITARY LAW – leave to appeal sought – granted – Restricted Court Martial – charges – creating a disturbance by causing a confrontation – service offence – whether charge not known in law – not a service charge – not capable of founding jurisdiction – ground failed – whether conviction bad for duplicity – series of acts may constitute course of conduct – ground failed – whether conviction wrong in law – whether no direction given – whether fault element to charge – physical element – intention – recklessness – direction involved no error – no miscarriage – ground failed – whether requirement for direction as to onus of proof – element of charge – no error – whether erroneous direction as to meaning of “disturbance” – whether disturbance justified by conduct of other officer involved – disturbance correctly characterised – other officer’s conduct not relevant to charge – ground failed – whether first charge oppressive when combined with second charge – charges were preferred in the alternative – not oppressive to prefer charges in the alternative – no exhaustive statement of offences which may be regarded as alternatives under Defence Force Discipline Appeal Act – ground failed – whether failure to direct that potential cause of confrontation was a comment made previously by officer involved in confrontation with appellant – whether comment made contrary to Racial Discrimination Act – giving rise to consequential right to protest – duty on Commonwealth to prevent such conduct – no consequential right created – no duty imposed on Commonwealth or other person – ground failed – whether evidence should have been called as to cause of confrontation – evidence was before the court at trial – whether evidence incorrectly ruled as irrelevant and inadmissible – whether questions asked by defending officer were irrelevant and should have been disallowed – no substance to grounds – whether defending officer affected by apprehended bias – whether discretion in relation to adjournment application wrongly exercised – whether Judge Advocate should have disqualified himself – complaint amounted to appellant’s dissatisfaction with rulings on adjournment application – no bias discerned – ground failed – whether ruling of inadmissibility with respect to evidence going to credit of officer in error – ruling correct – ground failed – whether error in not providing Jones v Dunkel direction in relation to failure to call particular evidence – witness was unavailable – evidence supportive of prosecution – no proper basis to infer otherwise – ground failed – whether remarks made by Judge Advocate gave rise to actual or apprehended bias – no complaint made with respect to bias at trial – no rulings the subject of complaints alleged to be tainted by error – no reasonable observer could have apprehended the Judge Advocate might not bring an impartial mind to the resolution of the issues – ground failed – procedural defect in original charge sheet – said to give rise to want of delegation – no failure to properly exercise power of delegation – did not render trial nullity – ground failed – whether conviction unsafe and unsatisfactory by virtue of all matters raised above – evidence sufficient to conclude beyond reasonable doubt that service offence committed by appellant – ground failed – appeal dismissed

DPP v Polutele [2011] VSC 223 (26 May 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/223.html

CRIMINAL LAW – Evidence – Manslaughter by unlawful and dangerous act – Accused charged with delivering blow rendering deceased man unconscious – Accused alleged to have acted in concert with witness serving prison sentence for manslaughter after guilty plea – Leave granted under s 38(1)(b) of the Evidence Act 2008 (‘the Act’) to cross-examine witness with whom accused alleged to have acted in concert – Leave granted to cross examine in relation to contents of witness’s police Record of Interview as prior inconsistent statements – Section 192(2)(a)-(e) of the Act – Credibility evidence – Evidence of prior inconsistent statement which could substantially affect assessment of credibility under s 102 of the Act – Principle in Blewitt v R [1988] HCA 43; (1988) 62 ALJR 503 inapplicable – Evidence of Record of Interview not excluded under s 137 of the Act – Evidence of second-hand hearsay admissions in Record of Interview excluded under s 137 of the Act.

Knowles v Victorian Mortgage Investments Limited & Anor [2011] VSC 611 (20 December 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/611.html

CONSUMER CREDIT – Application of the National Consumer Credit Code 2011 – Whether loan for business and investment purposes – Rafiqi v Wacal Investments Pty Ltd (1998) ASC 155-024; Linkenholt Pty Ltd v Quirk [2000] VSC 166; Dale v Nichols Construction Pty Ltd [2003] QDC 453; Bank of Queensland v Dutta [2010] NSWSC 574; Brott v Shtrambrandt & Ors [2009] VSC 467 – Application for relief under section 76, 77 and 78 of the National Consumer Credit Code 2011 for loan application fees – West v AGC (Advances) Ltd (1986) 5 NSWLR 610.

Kingston v Australian Capital Territory [2011] ACTSC 165 (7 October 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/165.html

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – nature of appeal.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – magistrate using affidavit not read – error in doing so – appeal upheld.

Evidence Act 1995 (Cth), ss 43, 128, 103

Coleman v The Queen [2011] VSCA 301 (12 October 2011)

http://www.austlii.edu.au/au/cases/vic/VSCA/2011/301.html

CRIMINAL LAW – Incest and indecent acts with a child – Fresh evidence bearing on the credit of the complainant – Significant possibility that the jury would have acquitted the accused if the fresh evidence had been before it.

19 Counsel for the respondent concedes that the statements in the psychologist’s report constitute fresh evidence. The evidence could have been led as hearsay evidence pursuant to the provisions of s 59 of the Evidence Act or may have constituted prior inconsistent statements admissible pursuant to ss 103 or 106 of the Act. At trial the statements could have been put to the complainant. If she did not admit that she had made the statements, evidence could have been led from Dr Uebergang to prove the statements were made.

20 If the evidence had been available to counsel at trial, the trial may have proceeded differently in that there may have been cross-examination of the complainant and her mother and, depending on the evidence given by the complainant, possibly evidence given by Dr Uebergang. The cross-examination or the evidence may have affected the credit of the complainant and possibly that of the mother.

Dodge v Snell [2011] TASSC 19 (21 April 2011)

http://www.austlii.edu.au/au/cases/tas/TASSC/2011/19.html

Torts – Negligence – Essentials of action for negligence – Duty of care – Special relationships and duties – Other cases – Breach of duty owed to fellow jockey.
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40; Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383; Kliese v Pelling [1998] QSC 112, discussed.
Civil Liability Act 2002 (Tas), ss11, 12.
Aust Dig Torts [44]

Torts – The law of torts generally – Volenti non fit injuria – Three elements to be proven – Effect of Civil Liability Act 2002 (Tas).
Carey v Lake Macquarie City Council [2007] NSWCA 4; Colin Ball v Transport Commission, B52/1991, discussed.
Civil Liability Act 2002 (Tas), ss15, 16.
Aust Dig Torts [7]

Torts – Statutes, regulations, etc – Applicability and effect in actions for negligence – Generally – Civil Liability Act 2002 (Tas), s19 – “Recreational activity” – Professional jockey injured – Interpretation – Natural meaning.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; Falvo v Australian Oztag Sports Association (2006) NSWCA 17; Fallas v Mourlas [2006] NSWCA 32, discussed.
Civil Liability Act 2002 (Tas), ss15, 18, 19, 20.
Acts Interpretation Act 1931 (Tas), ss8A, 8B.
Aust Dig Torts [87]

Damages – Measure and remoteness of damages in actions for tort – Measure of damages – Personal injuries – Method of assessment – Generally – Civil Liability Act 2002 (Tas) – Award of damages for gratuitous services – General damages – Reference to awards in other jurisdictions.
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327; Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, applied.
Civil Liability Act 2002 (Tas), ss28, 28B.
Aust Dig Torts [32]

R v CH and JW [2010] ACTSC 75 (30 July 2010)

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/75.html

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 53(4) Evidence (Miscellaneous Provisions) Act 1991 (ACT) – written reasons not required to be given before trial can proceed.

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 51(1) does not apply to evidence of complainant’s sexual activities with accused.

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – whether alleged sexual activities have substantial relevance to the facts in issue or are a proper matter for cross-examination about credit – evidence of consensual sexual activity between the complainant and another man on the night of the charges not relevant to a fact in issue – evidence of prior consensual sexual intercourse followed by a rape allegation is a proper matter for cross-examination about credit – evidence of prior consensual sexual intercourse followed by a threat to make a rape allegation is a proper matter for cross-examination about credit.

PROCEDURE – interaction of provisions dealing with pre-trial hearings (div 4.2B Evidence (Miscellaneous Provisions) Act 1991 (ACT)) with provisions dealing with admissibility of evidence of complainant’s prior sexual activities (div 4.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT)) and with obligations of counsel during examination of witnesses.

Criminal Code 2002 (ACT), s 712A

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53, 72, 73

Evidence Act 1995 (Cth), ss 55, 102, 103, 106

Evidence Act 1971 (ACT), s 76G(2)

Legal Profession (Barristers) Rules 2008

R v Peter John Parkes [2010] ACTSC 44 (21 May 2010)

CRIMINAL LAW – trial by judge alone – offence of trafficking in a controlled drug other than cannabis, namely heroin – whether accused sold heroin or gave it as a gift – sale not proved beyond reasonable doubt – accused found not guilty.
http://www.austlii.edu.au/au/cases/act/ACTSC/2010/44.html

EVIDENCE – prior inconsistent statements – assessment of explanation for making prior inconsistent statement – consideration of what use can be made of prior inconsistent statement – operation of credibility rule and hearsay rule – prior inconsistent statement admitted to prove the truth of the facts asserted in the statement.

CRIMINAL LAW – circumstantial case – judge asked to draw particular inferences from evidence – whether evidence supports those inferences – requirement that no inference should be drawn from direct evidence unless it is the only rational inference available.

CRIMINAL LAW – prosecution request that if verdict of acquittal to be entered, the Court should instead direct the accused to be indicted on a charge of possession of heroin – operation of s 296 Crimes Act 1900 (ACT) – s 296 not applicable where accused to be acquitted – possession charge no longer indictable.

Evidence Act 1995 (Cth), ss 38, 59, 60, 101A(b), 102, 103, 192

Jovan Nenadov SAVIC v REGINA [2008] NSWCCA 312 (16 December 2008)

[2008] NSWCCA 312

CRIMINAL APPEAL – CONVICTION – asserted miscarriage of justice – verdict said to be unsafe and unsatisfactory – whether evidence of guilty plea in separate proceedings admissible or unfairly prejudicial – whether failure of counsel to object to evidence said to be inadmissible displayed flagrant incompetence – whether error in trial judge failing to accede to application for view – whether error in disallowing certain cross-examination on prior inconsistent statement and credit
CRIMINAL APPEAL – SENTENCE – application for reduction in sentence – sentence said to be excessive – whether sentence reflected objective seriousness of offence – whether failure to take into account and give credit for co-operative manner in which the trial was conducted by the accused – where wounding with intent to murder and wounding with intent to do grievous bodily harm – Crimes Act 1990 (NSW) ss 27, 33
EVIDENCE – identification evidence – voice identification – visual identification – admissibility – advantage of trial judge – prior inconsistent statement – credit

KAMM, William v Regina [2008] NSWCCA 290 (10 December 2008)

[2008] NSWCCA 290

Criminal law – sexual offences – whether miscarriage of justice through witness’ allegation that counsel complicit in destruction of documents – counsel and witness at cross purposes – not truly allegation of impropriety or likelihood of prejudice to accused – rational decision by counsel not to apply for discharge of jury or take some other course to negate possible prejudice to accused – whether miscarriage of justice through certain cross-examination by Crown Prosecutor – was relevant and not offensive – had substantial probative value – not outweighed by risk of unfair prejudice.

R v Merlino [2004] NSWCCA 104 (21 April 2004)

[2004] NSWCCA 104

CRIMINAL LAW – Appeal against conviction – 2 counts of robbery armed with offensive weapon – plea of not guilty – whether trial judge erred in directions to jury on circumstantial evidence – whether prejudice caused by trials being run together – whether miscarriage due to jury being made aware that appellant and his alibi witness had been in prison – whether Crown cross examination invited adverse inferences relating to onus of proof and right to silence of appellant.

Evidence Act 1995 – s 103

R v El-Azzi [2004] NSWCCA 455 (16 December 2004)

[2004] NSWCCA 455

appeal against convictions

knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine

conspiracy to manufacture not less than large commercial quantity of methylamphetamine

proper characterisation of the object of the conspiracy

impossibility of achievement by use of materials available

whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered

whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine

whether separate trial of first count ought to have been ordered

admissibility of coincidence evidence

directions concerning evidence admissible on individual counts

the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts

directions concerning circumstantial evidence

evidence of deceased witness read

indemnified witnesses

cross-examination of appellant on matters relevant only to credibility

evidence of prior criminal conviction

evidence of disciplinary proceedings

discretion to grant leave to cross-examine appellant on credibility

unfairness

“substantial probative value”

unreasonable verdicts

corroboration

corroboration of evidence of accomplices

whether one accomplice can corroborate the evidence of another

directions concerning unreliability of witnesses

jury access to transcripts of counsels’ addresses and summing up

leave to appeal against sentence

appeal dismissed

leave granted to appeal against sentence

appeal dismissed

Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192

R v Linard Shamouil [2006] NSWCCA 112 (12 April 2006)

[2006] NSWCCA 112

CRIMINAL LAW – Crown Appeal – Exclusion of Evidence – Jurisdiction to hear appeal – Whether exclusion “substantially weakened” Crown case – Exclusion of evidence of cogency or force will “substantially weaken” Crown case – Evidence to be considered on the assumption that it is accepted by the jury – Criminal Appeal Act 1912, s5F(3A)

EVIDENCE – Probative value – Whether reliability or weight relevant to determination of probative value – Rarely relevant – Evidence Act 1995, s 137

CRIMINAL LAW – Crown Appeal – Whether trial judge erred in excluding evidence on the basis that its probative value outweighed by danger of unfair prejudice – Where trial judge took into account credibility when assessing probative value – Where trial judge failed to identify manner in which prejudice unfair – Evidence Act 1995, s 137

Evidence Act 1995: ss 55(1), 97(1)(b), 98(1)(b), 101, 103(1), 115, 116, 135, 137, 165

Reed v R [2006] NSWCCA 314 (10 October 2006)

[2006] NSWCCA 314

CRIMINAL LAW – Jurisdiction, practice and procedure – Powers and duties of prosecution – Delay in disclosure to defence of evidence in possession of Crown.

CRIMINAL LAW – Appeal – Whether a miscarriage of justice – Material withheld not of “sufficient relevance”.

EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused – Cross-examination of sexual assault complainants – Significance of surrounding detail to reliability of memory of assault.

Vikramdeep Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333 (18 October 2006)

[2006] NSWCCA 333

UNFAIR TRIAL – conduct of co-accused – Appellant and co-accused tried together – whether conduct by co-accused’s counsel inflammatory, to the extent of being improper or unfair to the Appellant – refusal to admit evidence going to the credit of co-accused – failure to warn jury as to unreliability of the co-accused’s evidence against the Appellant – no direction requested under Evidence Act 1995 (NSW), s 165 – failure to give directions with respect to evidence of flight

SENTENCE – “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – balance of period of the sentence not exceeding one-third of the non-parole period

Evidence Act 1995 (NSW), ss 9, 102, 103, 112, 135, 138, 164, 165

Palmer v R [1998] HCA 2; 193 CLR 1; 151 ALR 16; 72 ALJR 254 (20 January 1998)

[1998] HCA 2

Criminal law – Sexual offences – Cross-examination of accused as to whether complainant had motive to lie – Relevance – Inviting jury to speculate – Risk of reversal of onus of proof – Whether judge’s directions capable of neutralising prejudicial effect of cross-examination.

Criminal law – Sexual offences – Unsafe and unsatisfactory verdict – Alibi.

Derek Gabriel v the Queen [1997] FCA 561 (25 June 1997)

[1997] FCA 561

CRIMINAL LAW – appeal against conviction and sentence of the Supreme Court – recklessly inflicting grievous bodily harm – grounds for appeal – error of law – statements from Crown witness unfairly prejudiced the accused – cross-examination of accused as to prior criminal history – miscarriage of justice – onus of proof.

EVIDENCE – admissibility of evidence as to the bad character and criminal propensity of the accused – whether the probative value of such evidence substantially outweighs the unfair or prejudicial effect to the accused – putting the character of the accused in issue – the Court’s discretion to grant leave to admit evidence of the prosecution to rebut evidence of the accused’s good character – admissibility of prior inconsistent statement – false denial of having been involved in the offence – consciousness of guilt – whether character evidence of the accused must be adduced by or on behalf of the accused rather than by the Crown in cross-examination – whether the Crown’s rebuttal of character evidence need be confined to those aspects of character raised by the accused.

WORDS & PHRASES – “adducing evidence”.

Crimes Act 1900 (ACT), ss47, 19, 20

Evidence Act 1995  (Cth), ss97, 101, 102, 103, 104, 108(3), 110, 112, 135, 137, 190(1)

Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 (21 December 2000)

  [2000] FCA 1886

EVIDENCE – tendency evidence – application to adduce evidence of representations made to other prospective tenants of respondent’s shopping centre – whether evidence “tendency evidence” within s 97 of Evidence Act 1995 (Cth) – whether primary judge erred in holding that the evidence lacked “significant probative value” – test for determining whether tendency evidence has “significant probative value”.

EVIDENCE – “credibility rule” in s 102 of  Evidence Act 1995  (Cth) – refusal to permit cross-examination on representations allegedly made to other prospective tenants – whether cross-examination relevant for reason other than credibility – whether evidence from cross-examination would have had “substantial probative value” in relation to credibility.

WORDS AND PHRASES – “significant probative value” – “substantial probative value”.

Evidence Act 1995  (Cth), ss 55, 56, 95, 97, 98, 101, 102, 103, 106, 108, 135, Dictionary.

State Rail Authority of New South Wales & v Brown [2006] NSWCA 220 (7 August 2006)

[2006] NSWCA 220

EVIDENCE & PROCEDURE – whether evidence of cross-examined expert could be preferred – whether rule in Browne v Dunn infringed – whether cross-examination was prematurely stopped
NEGLIGENCE – damages – whether rehabilitation expenses required under the Workers Compensation Act were “reasonably necessary”

Evidence Act 1995 , ss 55, 102, 103

R v Lumsden [2003] NSWCCA 83 (3 April 2003)

[2003] NSWCCA 83

Admission of identification evidence of Sgt Rayner and directions as to that evidence not erroneous

admissibility of evidence of drugs found at applicant’s premises 2 months after offence

directions not inadequate

cross-examination by Crown of defence witness did not breach the credibility rule as matters had substantial probative value

Adam v R [2001] HCA 57; 207 CLR 96; 183 ALR 625; 75 ALJR 1537 (11 October 2001)

[2001] HCA 57

    A Note to Section 101A states “Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.”

Criminal law – Evidence – Whether trial judge erred in admitting prior inconsistent statements of prosecution witness – Relevance of prior inconsistent statements – Application of credibility rule – Exceptions to hearsay rule – Prior inconsistent statements as evidence of the truth of the representations.

Criminal law – Evidence – Unfavourable witnesses – Whether trial judge erred in granting prosecution leave to cross-examine its own witness – Unreliable evidence.

Evidence – Prior inconsistent statements – Relevance of such statements – Whether evidence of the truth of representations – Whether judge erred in granting leave to prosecutor to cross-examine its own witness.

Evidence Act 1995  (NSW), ss 38(1), 38(3), 38(6), 55(1), 59(1), 60, 102, 103, 192(2).