http://www.austlii.edu.au/au/cases/tas/TASCCA/2012/9.html

Evidence – Documentary evidence – Statutory provisions relating to business records – In general – Criminal cases – Prosecution case based on business records – Makers of representations not apparent from records – Request by accused to call makers of the representations at the trial – Prosecution asserted inability to identify makers – Unsuccessful application by accused to have evidence not admitted – Finding that accused likely to have known of the identity of the makers – Onus on prosecution to show reasonable cause for failing to call the makers as witnesses – Relevance of knowledge of the accused – Evidence Act 2001 (Tas), ss167, 169.

Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.

Aust Dig Evidence [121]

Evidence – Documentary evidence – Statutory provisions relating to business records – Particular cases – Criminal proceedings – Business record – Notation on document relied on for a non-hearsay purpose – Request by accused to call maker – Prosecution asserted inability to identify maker – Unsuccessful application by accused to have evidence not admitted – Evidence Act , ss167 and 169 apply to representations tendered for non-hearsay purposes.

Deputy Commissioner of Taxation v Trimcoll Pty Ltd [2005] NSWSC 1324; Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307, considered.

Lewis v Nortex Pty Ltd (In liq) [2002] NSWSC 237, applied.

Aust Dig Evidence [122]

Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection or non-direction – Misdirection – Prosecution based on representations in business records – Miscarriage of justice where trial judge wrongly gave significance to a notation not relied on by prosecution as incriminating – Failure to properly re-direct when requested.

Aust Dig Criminal Law [3466]

Criminal Law – Procedure – Confiscation of proceeds of crime and related matters – Pecuniary penalty and like orders – Assessment of benefit derived from the commission of the crime – Crime of conspiracy – Conspiracy to commit crimes under fishing legislation by understating in catch records amount of fish caught – Payment by accused for undeclared amount at lesser rate than for declared amount – Benefit derived was the wholesale value of the undeclared fish received – Price paid for undeclared fish disregarded.

Cornwell v Australian Federal Police (1990) 24 FCR 544 at 554, followed.

Crime (Confiscation of Profits) Act 1993 (Tas), ss21, 22.

Aust Dig Criminal Law [3230]

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1036.html

CIVIL PROCEDURE – interlocutory application for access to documentary exhibit for forensic examination – quaere the existence of any genuine dispute as to authenticity or identity of the document– no reasonable forensic purpose identified – whether request reasonable in the circumstances – application refused

[2008] NSWSC 786

EVIDENCE – defendant served expert report on plaintiffs – plaintiffs requested certain documents and information referred to in the expert report pursuant to s 166 of the Evidence Act 1995 (NSW) – defendants did not comply with request and plaintiffs obtained order of the Court under s 169 that defendant was to comply with the requests – defendant sent letter explaining non-compliance – plaintiffs sought order under s 169(3) that the defendant’s expert report not be admitted into evidence – whether reasonable cause for non-compliance under s 169(4)(a) – whether Court had power to make order directing defendant to comply with request to identify author of a document – whether discretion to direct that the expert report not be admitted into evidence should be exercised

[2005] NSWSC 1324

Requests made under s.167 Evidence Act – plaintiff requested the defendant call as a witness certain persons who had made previous representations in particular documents – defendant refused to compy with request – plaintiff seeking an order that the evidence to which the request is made is not to be admitted in evidence – plaintiff would alternatively accept an order directing that persons believed to be concerned with production of specified documents be called as witnesses at the hearing – authenticity or admissibility of the documents in issue – defendant did not wish to tender the documents as evidence of the truth of the representations – documents annexed to affidavits contained previous representations – annexed documents included payment declaration forms and invoices for work undertaken by sub-contractors – the request procedures under s.167 of the Evidence Act – whether plaintiff’s requests made under s.167 of the Evidence Act reasonable – the preconditions to be met by a requesting party – matters relevant to determining whether a request under s.167 a reasonable request – whether defendant’s refusal to comply with request made without reasonable cause – matters to be considered in the exercise of the power to make orders under s.169.

[1998] FCA 1580

EVIDENCE – documentary evidence – business records – exception to hearsay – effect provisions creating time limit for objections on admissibility of evidence – whether Pt 4.6 Div 1 of  Evidence Act 1995  (Cth) requires Court not to admit evidence for twenty-one days

Evidence Act 1995  (Cth), ss 26, 47-51, 55, 56, 59, 63, 64, 67, 69, 70-75, 135, 166, 167, 168, 169, 190