Category Archives: s. 142

Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 (25 March 2015)

EVIDENCE – whether unlawfully obtained evidence was properly admitted under s 138 of the Evidence Act 1995 (NSW) – vehicle stopped by police on grounds that were found not to be reasonable – before search of vehicle or occupants commenced passenger dropped prohibited drugs on ground – whether dropping of drugs irrelevant consideration in determining whether illegally obtained evidence ought be admitted
JUSTICES – latitude to be given to reasons given ex tempore – no opportunity to remove infelicities of expression – whether phrase “benefit of the doubt” indicated that Magistrate applied criminal standard of proof to determination whether contravention was deliberate or reckless

R v Simmons; R v Moore (No 3) [2015] NSWSC 189 (10 March 2015)

CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – use of listening device – where device deployed in psychiatric hospital – accused recovering from acute psychosis – whether police failed to disclose relevant information in application for surveillance device warrant – discretion to exclude admissions that are unfair – whether witness an agent of the state – whether witness “elicited” admissions – where accused had not previously been interviewed or advised of his right to silence
CRIMINAL LAW – admissions – whether admission induced by offer of “off the record” conversation – whether reliability adversely affected – fairness discretion

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

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.

Beckett v The State of New South Wales (No. 3) [2013] NSWSC 791 (28 June 2013)

PROCEDURE – discovery and interrogatories – discovery – privilege – statutory privilege under s 170 Police Act 1990 – whether documents should be produced though not admissible in evidence – definitions of privileged document and privileged information in UCPR – whether original complaints should be produced – who is a witness for the purposes of s 170

Dye v Commonwealth Securities Limited [2012] FCA 242 (16 March 2012)

CONTRACTS – employment contract – implied term of mutual trust and confidence and/or good faith discussed – incorporation of employer’s policies and procedures discussed – whether employment of employee via a subsidiary company was a sham

DEFAMATION – qualified privilege – reply to attack

HUMAN RIGHTS – discrimination – allegations of sexual harassment – jurisdiction of the Federal Court – some alleged conduct occurred in New Zealand – whether Sex Discrimination Act 1984 (Cth) has extraterritorial effect – vicarious liability – workplace participant

TORTS – injurious falsehood – whether damage to trade or business of an employee

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

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

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

Australian Competition and Consumer Commission v Allphones Retail Pty Limited (No 4) [2011] FCA 338 (12 April 2011)

CONTEMPT OF COURT – respondent gave undertakings to the Court not to withhold consent to assignment of its franchises on a certain basis – whether respondent contravened undertakings – general principles applicable to determination of a charge of civil contempt – what constitutes an “assignment” for the purposes of undertakings – whether consent to assignment “withheld” where no request to assign made but respondent indicated that consent to assignment would not be given – whether change of directors constitutes an assignment of franchise for purposes of undertakings in circumstances where franchise agreement deemed such a change to constitute an assignment – not an assignment for the purposes of undertakings

EVIDENCE – admissibility of documents exhibited to affidavit – whether documents exhibited to affidavit are what they purport to be – authenticity of documents – whether admissible as business records – reliance on other evidence to support contention that documents exhibited to affidavit are what they purport to be – documents admissible as business records
Words & phrases: “assignment”, “withhold consent”

Evidence Act 1995 (Cth), s 48(1), s 55(1), s 58(1), s 69, s 142 and s 183

R v Bormann [2010] ACTSC 145 (17 November 2010)

ADMISSIBILITY OF EVIDENCE – admissions made by accused’s partner – whether representations made by accused’s partner can be considered to be the admissions of the accused.

ADMISSIBILITY OF EVIDENCE – section 138 of the Evidence Act 1995 (Cth) – application to exclude evidence improperly obtained by interviewing officer – section 85(2) of the Evidence Act 1995 (Cth) application to exclude admissions made unless the circumstances of making the admissions are such that it is unlikely that the truth is adversely affected – application dismissed.

Evidence Act 1995 (Cth), ss 85, 87, 88, 135, 137, 138, 138(2), 139(2), 142

R v D G; D G v The Queen [2010] VSCA 173 (7 July 2010)

CRIMINAL LAW – Applications for leave to appeal against two interlocutory decisions – Two evidentiary rulings concerning admissibility of certain DNA evidence in murder trial – Consideration of s 297 of Criminal Procedure Act 2009 (Vic) – Whether leave to appeal should be given – Merits of appeal relevant to giving of leave – Onus of proof in exercise of judicial discretions under Evidence Act 2008 (Vic) – Applications for leave refused.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 (17 August 2007)

[2007] FCAFC 132

TRADE PRACTICES — restrictive trade practices — appeal against finding that union was liable as an accessory under s 76(1) of Trade Practices Act 1974 (Cth) to company’s contraventions of ss 45E and 45EA — whether primary judge erred in finding contract, arrangement or understanding between company and union contravened s 45E — whether primary judge erred in drawing certain inferences — whether primary judge erred in finding alternative case of Australian Competition and Consumer Commission made out — whether primary judge erred in finding union had knowledge of all elements required by s 45E(3)

TRADE PRACTICES — restrictive trade practices — proper construction of s 45E(3) of Trade Practices Act — whether ‘purpose’ for the inclusion of a provision is objective or subjective — whether ‘purpose’ to be common intention of parties — whether ‘purpose’ must be the only purpose or an operative purpose — whether union can be liable as an accessory to a corporation’s contravention of s 45E(3) — whether ‘second person’ must be a particular identified person — whether sufficient to identify a class of persons

TRADE PRACTICES — appeal against pecuniary penalty imposed on union for accessorial liability — whether pecuniary penalty excessive — standard of proof for pecuniary penalties under s 76


Evidence Act 1995 (Cth) ss 140, 140(2)

Regina v Lodhi [2006] NSWSC 648 (11 May 2006)

[2006] NSWSC 648

Criminal law; admissions by accused: s 81 Evidence Act (NSW) 1995; exception to hearsay rule (s 65(1) and 65(2)(c) Evidence Act); availability of witness; evidence admissible for non-hearsay purpose; s 136 Evidence Act – Limitation order

I am satisfied that there is no basis under ss 135 or 137 of the Evidence Act to exclude the evidence of the representations, provided the Crown does not lead the evidence relating to the name “Faheem”.

R v Moffatt [2000] NSWCCA 174 (23 May 2000)

[2000] NSWCCA 174

CRIMINAL LAW – appeals – appeal against conviction – murder – trial by judge alone – role of Court of Appeal – causation – whether death of deceased caused by act of appellant – where more than one possible cause of death – where constitutional defect – admissibility of admissions – confabulation – reliability of admissions.

Evidence Act 1995 s 85, 85(2), 86, 90, 135, 136, 137, 142, 189(3)

Chapman v Luminis Pty Ltd [No 2] [2000] FCA 1010 (28 July 2000)

[2000] FCA 1010

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

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

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

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

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 (4 June 2002)

[2002] FCAFC 157

APPEAL – nature of and approach to appeals in Federal Court – consideration of what constitutes ground of appeal – whether appropriate for parties to invite Court to re-hear matter ab initio – appeal is by way of re-hearing not trial de novo – task of appellate court is correction of error at first instance – need for parties to clearly demonstrate error – conclusions of trial judge given appropriate weight in determining whether error has been made

EVIDENCE – whether evidence is excludable where trial judge has taken it into consideration when objection not taken at first instance – expert evidence – admissibility of expert evidence – distinction between admissibility and ultimate weight – role of expert evidence in Federal Court hearings – whether marketing is considered an area of expertise – whether expert can give evidence on matters of common experience – where party failed to cross-examine expert witness on evidence and subsequently raised objection to it on appeal

TORT – passing off – characteristics of a valid cause of action – action designed to protect trader’s goodwill – whether requirement for actual, subjective intention to mislead – only likelihood of confusion of prospective purchaser need be proven – totality of the conduct of alleged deceiver to be considered – whether get-up distinctive of respondent’s product – whether appellant’s get-up would lead potential purchasers to believe appellant’s product was associated with the respondent – role of `gestalt’ in determining passing off – whether deliberate copying of rival’s get-up – whether get-up designed to “sail as close as possible to the wind” – where identical shades of blue, silver and red and diagonal thrust are features of both products’ get-up

TORT – joint tortfeasor – whether managing director procured or directed tort by corporation – where managing director not a `one man company’

TRADE PRACTICES – misleading and deceptive conduct – designed to protect consumers- whether conduct was misleading or deceptive or likely to mislead or deceive – whether managing director knowingly concerned in misleading and deceptive conduct of corporation when closely, as distinct from, remotely associated with conduct – whether injunctive relief can be sought against managing director of infringing corporation

Evidence Act 1995 (Cth) ss 56, 57, 76, 79, 80, 135, 142

Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; 216 CLR 161; 201 ALR 1; 77 ALJR 1629 (5 September 2003)

 [2003] HCA 49

Customs and excise – Prosecutions under Customs Act 1901  (Cth) and Excise Act 1901  (Cth) – Standard of proof required in order to obtain convictions for offences against specified provisions of Customs Act 1901  (Cth) and Excise Act 1901  (Cth).

Practice and procedure – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether standard of proof a matter of “practice and procedure” in the context of s 247 Customs Act 1901 (Cth) and s 136 Excise Act 1901 (Cth) – Whether standard of proof within contemplation of rules governing “commencing, prosecuting or proceeding with” a prosecution – Whether statutory averment provisions affect question of standard of proof.

Federal jurisdiction – Supreme Court exercising federal jurisdiction in respect of “Customs prosecutions” and “Excise prosecutions” under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Whether s 79 Judiciary Act 1903 (Cth) “picks up” any State law prescribing standard of proof to be applied – Whether s 80 Judiciary Act 1903 (Cth) applies to direct attention to common law principles.

Criminal law – Prosecutions under Customs Act 1901 (Cth) and Excise Act 1901 (Cth) – Standard of proof – Common law requirements where conviction sought for offence against a law of the Commonwealth – Significance of orders sought in prosecution proceedings – Meaning of “conviction” – Relevance of penal consequences of prosecutions to issue of whether proof beyond reasonable doubt necessary.

Words and phrases – “Customs prosecution”, “Excise prosecution”, “recovery of penalties”, “usual practice and procedure”, “commenced prosecuted and proceeded with”, “conviction”.

R v Tran [2003] ACTSC 53 (27 June 2003)

[2003] ACTSC 53

CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.

EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.

EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness –  Evidence Act 1995 , s 65.

EVIDENCE – availability of witness – whether witness not competent to give evidence about fact –  Evidence Act 1995 , s 65

Evidence Act 1995  (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary

R v Waters [2002] ACTSC 13 (15 March 2002)

[2002] ACTSC 13

CRIMINAL LAW – evidence – confessions – official questioning – no caution administered after formal arrest – earlier caution at search –  Evidence Act 1995  (Cth), s 139, Crimes Act 1914 (Cth), s 23F.

CRIMINAL LAW – evidence – confessions – official questioning – where recording facilities available confession inadmissible unless recorded – parts of questioning not recorded – separate periods of questioning – Crimes Act 1914 (Cth), s 23V.

CRIMINAL LAW – evidence – confessions – official questioning – whether truth of confession adversely affected –  Evidence Act 1995  (Cth), s 85.

CRIMINAL LAW – evidence – confessions – official questioning – unfairness discretion – Evidence Act 1995 (Cth), s 90.

Evidence Act 1995  (Cth), s 85, s 90, s 135, s 138, s 139, s 142

NAB v Rusu [1999] NSWSC 539 (4 June 1999)

[1999] NSWSC 539

Practice and Procedure – commercial litigation – unrepresented parties – non-English speaking – proper advice and assistance from Court –

Evidence – tender of Business records by plaintiff bank – admissibility – Need to prove authenticity of records –  Evidence Act 1995 .

Evidence Act 1995  ss 48(1), 48(1)(6), 55(1), s 7(1), 59(1), 69(1), 69(2), 81(1) 142(1), 144(1) (6), 152, 166, 168 and 169.

R v JF [2009] ACTSC 104 (27 August 2009)

EVIDENCE – pre-trial application – voir dire – admissibility of admissions –  Evidence Act 1995  (Cth), s 189; Court Procedures Rules 2006 (ACT), rr 4752, 4753, 4737 – first admission influenced by violent and oppressive conduct – Evidence Act 1995 (Cth), s 84 – whether second admission influenced by prior inadmissible admission.
EVIDENCE – proper procedure when questioning a young person – Children and Young People Act 1999 (ACT), s 79; Crimes Act 1914 (Cth) s 23K – failure to provide time for suspect to confer with ‘interview friend’.
EVIDENCE – admissibility of admissions – Crimes Act 1914 (Cth), s 23V – proper procedure when questioning – failure to tape-record questioning when practicable to do so – contrary to the interests of justice to admit such evidence – vulnerability of the suspect – guidelines for police questioning.
EVIDENCE – admissibility of taped interview – discretion to exclude –  Evidence Act 1995  (Cth), s 90 – factors considered – period of remand – Crimes Act 1914 (Cth), s 23C –allowable discounted time – alleged failure to provide sleep and food to suspect – alleged prejudice due to conduct of suspect’s lawyer – seizure of clothes.
EVIDENCE – whether prior questioning formed part of later questioning.
Evidence Act 1995  (Cth), ss 75, 84, 85, 90, 135, 137, 138, 142(1), 189