Category Archives: s. 190

R v McGuckin [2014] ACTSC 242 (18 September 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/242.html

CRIMINAL LAW – PARTICULAR OFFENCES – Aggravated robbery – Assault occasioning actual bodily harm – Recklessly causing damage to property – Not guilty by reason of mental impairment
CRIMINAL LAW – GENERAL MATTERS – General Liability and Capacity – Pleas of not guilty by reason of mental impairment – Difficulties in diagnosis – Differing diagnoses

Addenbrooke Pty Limited v Duncan (No 5) [2014] FCA 625 (16 June 2014)

http://www.austlii.edu.au/au/cases/cth/FCA/2014/625.html

EVIDENCE – whether previous representations made in certain printouts of emails should be admitted into evidence as business records pursuant to s 69 of the Evidence Act 1995 (Cth) – whether those emails should be excluded in the exercise of the Court’s discretion pursuant to s 135 or s 169 of the Evidence Act – whether the Court should compel the plaintiff to call the authors of the emails pursuant to s 169 of the Evidence Act – whether the provisions of the Telecommunications (Interception and Access) Act 1979 (Cth) prohibit the tender of transcripts of recordings of intercepted telephone calls and whether, if not, those transcripts are admissible as business records – whether transcripts of evidence given at a public inquiry conducted by the NSW Independent Commission Against Corruption are admissible as business records – whether a previous statement in writing made by a potential witness out of Court which was created for the purpose of being provided to a television journalist is admissible

Regent Holdings v State of Victoria [2013] VSC 601 (7 November 2013)

http://www.austlii.edu.au/au/cases/vic/VSC/2013/601.html [Correct link]

NEGLIGENCE – Duty of care – Breach of duty – Crown – Failure by servants or agents of State government to exercise statutory powers – Position of control over industry – Public duty – Fisheries Act 1995, ss 7, 9, 10, 11A, 28, 34, 42, 49, 51, 53, 142, 148, 150, 151 and 152 – Livestock Disease Control Act 1994, ss 7, 8, 13, 15, 21, 24, 26, 27, 110, 113, 115 and 135 – Wrongs Act 1958, ss 48, 49, 51, 52, 83 and 85.

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/458.html

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

Australian Securities and Investments Commission v Cassimatis [2013] FCA 641 (28 June 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/641.html

PRACTICE AND PROCEDURE – application for summary dismissal under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) – principles applicable to summary judgment – whether summary dismissal involves a two-stage test that shifts the onus to the respondent on the application when the applicant has established a prima facie case

CORPORATIONS – where substantive proceedings allege contraventions of s 180(1) of the Corporations Act 2001 (Cth) (Corporations Act) by directors of a company for exposing the company to risk of various adverse legal outcomes – where adverse outcomes include proceedings arising out of contraventions of the Corporations Act because of the manner in which the company provided advice to 46 investors – whether ASIC has reasonable prospects of success of establishing that a reasonable director would have foreseen a risk of the adverse legal outcomes and concluded the risks were unacceptably high – whether affidavit evidence from the directors that contains general, unparticularised assertions establishes a prima facie case

CORPORATIONS – whether ASIC has reasonable prospects of success of establishing a breach of s 180(1) where: the respondents held all the shares in the company and were the only executive directors, the company was solvent and no allegation of bad faith – whether those circumstances are determinative – reliance on ASIC v Maxwell (2006) 59 ACSR 373; [2006] NSWSC 1052 – whether identity of interest between shareholders and directors changes the content of the duty under s 180(1) –whether s 180(1) imposes a minimum standard of care and skill

Australian Competition and Consumer Commission v P. T. Garuda Indonesia (No 9) [2013] FCA 323 (11 April 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2013/323.html

EVIDENCE – Opinion evidence – Expert evidence – Whether expert on international transportation law qualified to give evidence on competition law – Whether expert on international transportation law qualified to give evidence on treaty construction

EVIDENCE – Opinion evidence – Expert evidence – Proof of international law – Whether international law to be proved as a matter of law – Whether question of international law arising as part of foreign law to be proved as a fact or whether it should be excluded – Interaction between foreign, domestic and international law in evidence

Australian Communications and Media Authority v Bytecard Pty Ltd [2012] FCA 1191 (22 October 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/1191.html

7. To the extent that it may be necessary to do so, I rely upon s 191(1), (2) and (3)(b) of the Evidence Act 1995 (Cth), although I do not confine the basis upon which I have admitted Exhibit A to that section. Given that there is no real dispute as to the facts and matters proven by the documents contained in Exhibit A, I also propose to make an order pursuant to s 190(3) of the Evidence Act to the effect that Pts 2.2, 2.3 and 3.2 to 3.8 of the Evidence Act do not apply to Exhibit A. I note that the majority of the facts dealt with in Exhibit A have been admitted in the respondents’ Defence, in any event.

Manday Investments Pty Ltd v Commonwealth Bank of Australia (No 3) [2012] FCA 751 (13 July 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/751.html

PRACTICE AND PROCEDURE – whether the applicants had a reasonable prospect of success in pleading misleading or deceptive conduct by the bank’s reliance on allegedly inaccurate property valuations – application for summary judgment by respondent bank and valuers pursuant to s 31A Federal Court Act 1976 (Cth) and r 26.01 Federal Court Rules 2011 – what onus if any on a party when all relevant evidence is held by the other

CONTRACT – whether the applicants had a reasonable prospect of success in pleading breach of implied term of loan contract by the bank’s reliance on allegedly inaccurate property valuations

Held: applicants’ breach of implied contractual term pleading should be summarily dismissed because the loan contract had expired and no automatic right of renewal

TRADE PRACTICES – reliance and causation – consideration of applicants’ conduct in chain of causation causing loss and reliance on valuations – held the respondents’ causation argument (that the actions of the bank were unaffected by the valuations) could not be determined summarily because the question of what the bank would have done had the property valuations been higher could only be determined at trial by testing the evidence

Held: however that the respondents’ reliance argument should succeed insofar as the ‘indirect causation theory’ could not apply as there was no evidence that the applicants relied on the valuation at any time, they were not misled by the valuation and their own actions in selling the property were the cause of the loss

The Bank and the Valuers particularly rely upon a judgment of Gordon J in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 where her Honour said (at [127]):

Thirdly, each case must be considered separately. No particular hard and fast rules can be set down, only general principles. One principle is that the moving party bears the onus of persuading the court that the opponent has no reasonable prospect of success (see Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 at 333). As noted earlier, however, s 31A has lessened the standard that must be met. In that regard, it must be emphasised that once a moving party has established a prima facie case that the opponent has no reasonable prospect of success, the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or non-particularised denials will be insufficient to defeat the motion: see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [22]. In other words, it is inappropriate in defence of a claim for judgment under s 31A of the [Act] to seek to defend by merely putting a claimant to formal proof: Vans Inc v Offprice.Com.Au Pty Ltd [2006] FCA 137 at [12]. This is not a new concept. It finds earlier reflection in ss 190(4) and 191 of the Evidence Act 1995 (Cth) and O 33, 34 and 34B of the Federal Court Rules 1979 (Cth).

Campbell Street Theatre Pty Ltd (receiver and manager appointed) (in liquidation) & Ors v Commercial Mortgage Trade Pty Ltd & Anor [2012] NSWSC 669 (19 June 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/669.html

CORPORATIONS – Uncommercial transactions – Corporations Act 2001 (Cth) s 588FB – Whether entry into deeds of agreement was an uncommercial transaction – Insolvency – Corporations Act 2001 (Cth) s 588FC – Whether entry into deeds of agreement was an insolvent transaction – Voidable transactions – Whether entry into deeds of agreement was a voidable transaction – Whether First Plaintiff should be released from the transaction.

R v Goodridge [2012] NSWSC 378 (20 April 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/378.html

CRIME – murder – special hearing – partial defence of substantial impairment by abnormality of the mind

“6. There was no cross-examination of any of the witnesses. All the statements were tendered without objection. The Crown and the defence agreed to waive the rules of evidence. Section 184 of the Evidence Act 1995 permits an accused in a criminal proceeding to admit a matter of fact or to give a consent “if advised to do so by his or her lawyer”. Section 190 of the Evidence Act permits the rules of evidence to be waived; however the defendant’s consent in criminal proceedings is not effective unless the defendant has been advised to consent by his or her lawyer. Mr Winch, who appeared for the accused, confirmed that he had given him the requisite advice. The procedure adopted is not inconsistent with s 21(1) of the Mental Health (Forensic Provisions) Act: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1 at 6 [15]- [18], per Spigelman CJ, with whom Sully J agreed.”

Tivo Inc v Vivo International Corporation Pty Ltd [2012] FCA 252 (19 March 2012)

http://www.austlii.edu.au/au/cases/cth/FCA/2012/252.html

TRADE MARKS – Whether respondents’ mark deceptively similar to applicants’ mark – Whether honest concurrent use – Whether use of respondents’ mark likely to deceive or cause confusion, because applicants’ mark had acquired reputation in Australia or due to convergence of goods sold under each mark – Whether discretionary factors justify maintenance of registration of respondents’ mark – Whether infringement of applicants’ trade mark – Whether second respondent liable as joint tortfeasor – Whether applicants’ or respondents’ mark should be removed from the Register due to non-use in respect of particular goods or services

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/458.html

APPEAL FROM LOCAL COURT- Appeal against final order by Magistrate that a non-intimate forensic procedure be performed – whether Magistrate erred in finding that the forensic procedure might produce evidence tending to confirm or disprove suspect committed the relevant offence pursuant to s 24(3)(b) Crimes (Forensic Procedures) Act in the absence of crime scene DNA – whether Magistrate erred by failing to consider and apply the matters set out in s 24(4) of the Crimes (Forensic Procedures) Act – whether Magistrate erred by failing to decide whether or not the forensic procedure was justified in accordance with the criteria set out in s 24(4) of the Crimes (Forensic Procedures) Act

Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 (22 August 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/950.html

INDUSTRIAL LAW – unlawful industrial action – whether there were contraventions by union officials – liability – whether breach of s 38 Building and Construction Industry Improvement Act 2005 – whether breach of Collective Agreements.
PRACTICE AND PROCEDURE – statement of claim – sufficiency of pleadings.

Evidence Act 1995 (Cth) ss 102, 106, 140(2), 190(3)

R v Ma [2011] ACTSC 126 (28 July 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/126.html

CRIMINAL LAW – jurisdiction, practice and procedure – real or substantial question raised about fitness to plead in the Magistrates Court – committed to the Supreme Court for trial.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offences.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – accused ordered to submit to the jurisdiction of ACAT.

R v Bauer [2011] ACTSC 127 (16 August 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/127.html

CRIMINAL LAW – trial by judge alone – assault – damage to property – discrepancies between evidence of complainants – identification evidence not reliable to establish accused’s involvement – prosecution evidence did not exclude alibi raised – reasonable doubt as to accused’s presence at the relevant occasions and times of the alleged incident – accused not guilty on all charges.

Evidence Act 1995 (Cth), Pt 3.2, ss 65(1), 65(3), 116(1)(a), 116(1) (b), 165(1) (b), 190

R v Fisher (No 2) [2011] ACTSC 100 (10 June 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/100.html

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – special hearing – accused engaged in the conduct required for the offence.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – what orders can be made.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – disposition following non-acquittal – ancillary orders – whether bail can be granted to submit to the jurisdiction of ACAT – no apparent power.

Evidence Act 1995 (Cth), ss 184, 190

R v Dunn [2011] ACTSC 84 (12 May 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/84.html

CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused found unfit – special hearing – accused engaged in conduct required for charged offences.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming unfit during trial – election for trial by judge alone – need for court to indicate whether accused can elect for trial by judge alone – expression of opinion by guardian – need for proper method of expressing opinion.

CRIMINAL LAW – jurisdiction practice and procedure – accused unfit to plead or becoming unfit during trial – accused unfit to plead – special hearing – accused found to have engaged in conduct required for charged offences – disposition – whether other orders available – orders when multiple offences involved.

Evidence Act 1995 (Cth), ss 184, 190

R v Williams (No 2) [2011] ACTSC 77 (12 May 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/77.html

CRIMINAL LAW – special hearing – trial by judge alone – accused found to have engaged in the conduct required for the offence.

CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – orders to be made after special hearing.

Evidence Act 1995 (Cth), ss 184, 190

Starkey v State of South Australia [2011] FCA 456 (9 May 2011)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/456.html

NATIVE TITLE – whether to order that a person cease to be a party to the proceeding – where party joined as of right by s 84(3) of the Native Title Act 1993 (Cth) – where party who was joined as a respondent was already a member of the native title claim group – where joined party contends that authorisation of applicant to act on behalf of the claim group pursuant to s 251B of the Native Title Act 1993 (Cth) could not legitimately occur without his consent – party to cease being a respondent party as to remain as such will delay and interfere with progress towards consent determination – where concern about proper authorisation is better addressed by s 84D

Yarra Valley Dairy Pty Ltd v Lemnos Foods Pty Ltd [2010] FCA 1367 (10 December 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/1367.htm

TRADEMARKS – whether trade mark capable of distinguishing designated goods – geographic reference – description of style of goods – cancellation of trade mark – onus of proof – Trade Marks Act 1995 (Cth), ss 41, 88(2)(a), (e)
TORTS – passing off – whether there has been representation by the respondent to the public leading the public to believe the goods offered by the respondent are the applicant’s goods
TRADE PRACTICES – misleading and deceptive conduct – clear distinguishing features – Trade Practices Act 1974 (Cth), ss 52, 53
EVIDENCE – hearsay – ss 60, 136, 190(3) Evidence Act 1995 (Cth)

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1145.html

CRIMINAL LAW – Confiscation of criminal proceeds – Restraining orders – Ancillary orders – Necessity for reasons – New statutory regime for applications to set aside restraining orders.

Garling J
8 In considering the application, it was necessary to bear in mind the applicable legal principles.

9 An application for a restraining order is governed by the rules of evidence applicable in civil proceedings: s 5(2)(b) of the Act: International Finance Trust Company Limited v NSW Crime Commission [2008] NSWCA 291 at [9].

10 An application is an interlocutory one in character, governed by the Evidence Act 1995 as it applies to interlocutory proceedings: s 4(1)(b) and (c), Evidence Act 1995 ; International Finance at [9].

11 The Court has the power to dispense with the application of various provisions of the Evidence Act 1995 if there is a matter not genuinely in dispute, or else if the application of those provisions would cause or involve unnecessary expense or delay: s 190, Evidence Act 1995 ; s 9, Criminal Assets Recovery Act 1990.

12 As well, the common law evidentiary rule which enabled the Court to exercise a power to dispense with the operation of the rule of evidence in an interlocutory proceeding remains: See Geoffrey W. Hill & Associates v King (1992) 27 NSWLR 228 at 230 per McLelland J; s 9, Criminal Assets Recovery Act 1990; International Finance at [13].

Huang v University of New South Wales [2010] FCAFC 104 (25 August 2010)

http://www.austlii.edu.au/au/cases/cth/FCAFC/2010/104.html

EVIDENCE – foreign evidence – application to obtain evidence from Korea for use in Federal Magistrates Court proceeding – whether appellant denied procedural fairness – interpreter present during morning, but absent in afternoon, when hearing continued and judgment given – application adjourned to enable appellant to apply to vacate trial date – application subsequently dismissed because appellant had not so applied – whether appellant failed to understand requirement to apply to vacate trial date before next mention of application – whether appeal court should deal with merits of application when primary judge had not done so – appellant could have made further application once trial date vacated, but did not do so – need to obtain evidence from Korea depends on course taken by respondents at trial in relation to statements of Korean witness in an exchange of emails with appellant and in an affidavit

Evidence Act 1995 (Cth), ss 27, 63, 63(2)(b), 67, 170, 173, 190(1)(b), 190(3), 190(4)

SNF (Australia) Pty Ltd v Commissioner of Taxation [2010] FCA 635 (25 June 2010)

http://www.austlii.edu.au/au/cases/cth/FCA/2010/635.html

INCOME TAX- transfer pricing, methodology of transfer pricing, application of Div 13 of Pt III of the Income Tax Assessment Act 1936, application of international tax treaties (Double Taxation Agreements), conferral of power by international treaties to impose tax, application of s 136AD(3) and (4), whether more than arm’s length consideration was given by the applicant, transfer pricing methods, comparable transactions.

Middleton J
112. To the extent that any reliance was sought to be placed upon s 190 of the Evidence Act , I would not exercise my discretion to allow the evidence to be otherwise admitted into evidence, as the evidence is contested and is central to the consideration I must undertake to determine the primary issue in this case. The taxpayer has been aware in the preparation of this proceeding that the burden would be upon it to provide evidence in admissible form to the Court. None of the considerations referred to in s 190 would lead me to exercise my discretion to admit the evidence objected to by the Commissioner.
113. In relation to the objections taken to the evidence of Mr Seve, I accept that he was an expert witness, founded upon his experience in and knowledge of transfer pricing. An expert is entitled to rely upon the information of others, and his own assumptions, as long as these are clearly identified, and the opinion expressed is his or hers: see Paino v Paino [2008] NSWCA 276. Contrary to the submission of the Commissioner, Mr Seve’s reliance upon others did not make his report a joint report of many authors (of the type referred to by Stone J in Cooke v Commissioner of Taxation [2002] FCA 1315; (2002) 51 ATR 223), as he was the sole author of the report and presented it as such to the Court.
114. However, and significantly in this proceeding, Mr Seve could not provide evidence as to the primary facts needed to properly undertake a CUP analysis or provide a comparative analysis. Like an economist, Mr Seve may be able to give evidence about markets and market behaviour generally, but in relation to specific markets and the comparable transactions primary evidence would be required.
115. As such, in this case, Mr Seve cannot give evidence of the factual elements of the CUP analysis which relate to economic comparability, comparability of goods, comparability of point in the chain where goods are sold, comparability of functions of the enterprise, comparability of terms and business strategies.
116. As a matter of procedure, pursuant to s 57 of the Evidence Act , the evidence of opinion could be admitted subject to evidence being admitted at a later stage in the proceeding proving the primary facts assumed by the expert. If by the end of the proceeding a fact upon which a particular opinion is based is not established, then the opinion has no weight.
117. Nevertheless, Mr Seve can provide expert evidence (like an economist) to assist the Court on comparability. However, even with this assistance, the Court has the ultimate task of considering the primary facts, and in this proceeding, determining the ultimate issue concerning arm’s length consideration in the context of the interpretation and application of Div 13.
118. In this regard, the comments of the Full Court of this Court in Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 131 FCR 529 have equal application to the present case:

[163] In concluding our findings in relation to s46, something should be said about the use of expert economic evidence in cases such as the present. The primary judge referred to the evidence of witnesses called in the cases, to writings on the topic by economists and lawyers, and to the discussion of economic theory in other judgments. The primary task of the Court, however, is to apply the words of the Act to the facts found on the evidence before it. These words involve some economic concepts and the application of the Act to the facts of a particular case may be informed by economic evidence or argument. But it is the language of the Act which defines the task that the legislature has set for the Court. To the extent that the statutory language conflicts with economic theory, the Court is bound to apply the Act.

119. Therefore, I regard the evidence of Mr Seve as expert evidence admissible under s 79 of the Evidence Act , but only to be given weight to the extent admissible evidence is otherwise before the Court as to the necessary primary facts. On this basis, the evidence is not unfairly prejudicial to the Commissioner for the purposes of s 135 of the Evidence Act . Mr Seve has set out the information he had relied upon, his assumptions, and the instructions he was given to prepare his reports. The taxpayer does not rely upon Mr Seve’s evidence to prove the primary facts, and no order was required to be given pursuant to s 136 of the Evidence Act .

R v Steven Wayne Hillier [2010] ACTSC 33 (16 April 2010)

CRIMINAL LAW – trial by judge alone – murder – circumstantial case – evidence of motive, opportunity and consciousness of guilt and DNA evidence – reasonable possibility of contamination of DNA evidence – consciousness of guilt evidence not proved beyond reasonable doubt – verdict of acquittal entered.

EVIDENCE – burden of proof in relation to DNA evidence and consciousness of guilt evidence – proof beyond reasonable doubt required because of importance of evidence to Crown case.

EVIDENCE – waiver of rules of evidence under s 190 of Evidence Act 1995 (Cth) – tender of transcript of first trial.

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010)

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html
Occupational health and safety – Statutory duty – Occupational Health and Safety Act 1983 (NSW), ss 15 and 16 provided duties of employer to “ensure the health, safety and welfare at work of all the employer’s employees” and that “persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking” – Section 53(a) provided a defence where it was “not reasonably practicable … to comply with the provision of this Act” – Breach of duty criminal offence – Statement of offences as particularised did not identify what measures defendant could have taken but did not take to fulfil duty – Whether statement of offence must identify act or omission said to constitute contravention of s 15 or s 16 – Whether failure to charge act or omission an error of law – Whether error on the face of the record – Whether jurisdictional error.

Evidence – Competence and compellability of accused persons – Joint trial – Industrial Relations Act 1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules of evidence – Evidence Act 1995 (NSW), s 17(2) provided that a defendant is not competent to give evidence as witness for prosecution – No power of Industrial Court of New South Wales to dispense with s 17(2) – Defendant called as witness for prosecution – Whether jurisdictional error – Whether error on the face of the record.

Administrative law – Jurisdictional error – Error of law on the face of the record – Whether orders in nature of certiorari available.

Statutes – Privative clause – Industrial Court of New South Wales – Construction of privative clause – Whether privative provision effective to prevent review for jurisdictional error – Whether effective to prevent review for error of law on the face of the record – Relevance of exclusion of right to appeal to Supreme Court of New South Wales and to High Court of Australia.

Constitutional law (Cth) – Chapter III – State Supreme Courts – Power of State Parliament to alter defining characteristic of Supreme Court of a State – Supervisory jurisdiction – Whether a defining characteristic is power to confine inferior courts and tribunals within limit of their authority to decide.

Procedure – Costs – Appellate court exercising supervisory not appellate jurisdiction – Appellate court makes orders in nature of certiorari – Whether appellate court has power to make orders in place of orders quashed.

Words and phrases – “act or omission”, “certiorari”, “description of offence”, “error of law on the face of the record”, “jurisdictional error”, “privative provisions”, “reasonably practicable”, “superior court of record”, “Supreme Court of a State”, “the record”.
Evidence Act 1995 (NSW), ss 17(2), 190.

Heydon J (dissenting in part)


Defendant called as witness by the prosecution

114. The law required the hearing to be conducted in accordance with the rules of evidence. That follows from s 163(2) of the Industrial Relations Act 1996 (NSW) (“the IR Act”). It also follows from the Evidence Act 1995 (NSW) (“the Evidence Act”): see s 4(1) read with the definition in Pt 1 of the Dictionary of “NSW court”. In defiance of the prohibition in s 17(2) of the Evidence Act, the prosecution called Mr Kirk as its own witness in a criminal case. It was not open to the Industrial Court to dispense with s 17(2) pursuant to s 190, even with the consent of the parties. That error was not sinister in that it arose by reason of an oversight by the parties and the judge. But it was a jurisdictional error. The trial judge had jurisdiction to decide whether to fine the appellants after a trial conducted in accordance with the rules of evidence. He did not have jurisdiction to decide whether to fine the appellants after a trial which was not conducted in accordance with the rules of evidence. The jurisdictional error appeared on the face of the record, being mentioned at least twice in the trial judge’s reasons for judgment. Will every error in applying those of the numerous rules of evidence which cannot be dispensed with pursuant to the fairly strict requirements of s 190 or bypassed by agreeing facts pursuant to s 191 or outflanked by making admissions be a jurisdictional error? That question should be reserved for consideration from case to case. It is possible that there may be instances of failure to comply with the rules of evidence which are of insufficient significance to cause the court making them to move outside jurisdiction. It is also possible, as the majority suggest, that even insignificant failures would be jurisdictional errors, but not jurisdictional errors of a type justifying the exercise of an appellate court’s discretion in favour of granting relief[145].

115. But the error involved here in the prosecution calling a personal defendant as its witness to give a substantial quantity of testimony is within neither of these two categories. On any view it was a jurisdictional error, and there was no discretionary reason for refusing relief. For a long time it was controversial whether, and on what conditions, the accused should be made a competent witness[146]. The position adopted by the Imperial and Australian legislatures in the late 19th century was that the accused was not to be a competent or compellable prosecution witness, but was to be a competent witness for the defence. That position has been continued in s 17(2) of the Evidence Act. It is an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales. A sign, and a cause, of its fundamental character is the provision in s 190(1)(a) that the court cannot make an order dispensing with that rule, even with the consent of the parties.

116. I agree with the reasons of the majority for rejecting the proposition that even if Mr Kirk was not competent to give evidence in the case against him he was competent to give evidence as a witness against the Kirk company[147].

117. It would be wrong to do what the prosecution in this Court did not do – to treat the fact that Mr Kirk was called by the prosecution as a mere technicality of which the appellants have been able to take an adventitious and unmeritorious advantage at a late stage in these proceedings. The credibility of a witness in the position of Mr Kirk in relation to the defence under s 53 of the Occupational Health and Safety Act 1983 (NSW) (“the OH&S Act”) is capable of being affected by the manner in which the testimony is elicited. The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least[148], normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner’s ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner’s client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client’s advocate is severely restricted in the capacity to ask leading questions in chief. Judging the credibility of a witness in the box can depend on the trier of fact making an assessment of that witness’s whole character. It is a process assisted by knowing as much about the witness’s character as possible. The credibility of testimony is often enhanced, and the assessment of credibility is assisted, when the testimony is given in answer to non-leading questions. Testimony given in answer to non-leading questions is the witness’s own testimony, resting on the witness’s own perceptions, and moulded by the witness’s own values. It is not something created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness’s character as much as possible. On some issues in the trial in this case the prosecution bore the legal burden of proof, but on the vital s 53 issue Mr Kirk and the Kirk company bore the legal burden of proof. It would have been asking too much of human nature to have expected counsel for the prosecution to have elicited evidence from Mr Kirk on issues exclusive to the s 53 defence. That task thus lay with counsel for Mr Kirk and the Kirk company. It is a task one would expect to have been more satisfactorily accomplished from the defendants’ point of view if it were done by an advocate not able to make extensive use of leading questions. There are many reasons for the legislative choice made in s 17(2) and s 190, but this particular consideration alone indicates that there is nothing irrational about it, and nothing trivial about the failure to comply with s 17(2) in this case.

Sherman v Commissioner of Patents [2008] FCA 1026 (9 July 2008)

[2008] FCA 1026

5 Counsel for the applicant objected to the reading of paragraphs 6, 7 and 8 of the affidavit, and to the reception into evidence of the exhibits referred to therein. Although those objections were based upon several grounds arising under the Evidence Act 1995 (Cth) (“the Evidence Act”), most of them involved the proposition that the Commissioner should not be permitted to prove the contents of the Rork citation referred to in the delegate’s affidavit, and of the statutory declarations exhibited to the affidavit, without calling direct evidence of the substantive facts which the Commissioner seeks to establish by the tender of those documents. Counsel for the applicant relied in this respect upon ss 59(1), 135, 56(2) and 48(1) of the Evidence Act, and upon O 14 r 9 of the Federal Court Rules.

6 Counsel for the Commissioner pressed for the reception into evidence of the contents of the delegate’s affidavit, and of the exhibits thereto. They submitted that, in an appeal to the Federal Court under s 60(4) of the Patents Act, that Act permitted all of the material which had been before the delegate in the opposition hearing to be tendered as evidence without reference to restrictions that might otherwise have been imposed by the Evidence Act. Alternatively, they sought a direction pursuant to s 190(3) of the Evidence Act that the provisions of that Act relied upon by the applicant not apply, on the ground that the application of those provisions would cause or involve unnecessary expense or delay. They relied also upon ss 60 and 75 of the Evidence Act in response to the applicant’s reliance upon s 59.

Williams Advanced Materials, Inc v Target Technology Company LLC [2004] FCA 1405 (29 October 2004)

[2004] FCA 1405
INTELLECTUAL PROPERTY – PATENTS – novelty – reverse infringement – no suggested advantage or difference between materials in possible range – reverse infringement – equal in practical utility – clear directions in prior art to work within claimed ranges or proportions – no suggestion that specified proportions or ranges other than arbitrary – claim construction and disclosure in prior art a matter for expert evidence only to the extent of special meaning to skilled reader – obviousness – reliance on evidence of skilled worker with no common general knowledge in Australia for inventive step – mental logic of the notional team constituting the skilled addressee – evidence given without knowledge of the patent – no hindsight analysis – test in Astra – not a question of worthwhile to try – inventive step is the choice of metal alloys in the combination that was otherwise common general knowledge and acknowledged as known in the specification – no suggestion that initiation of inventive step in other than the choice of the new alloys for use in the reflective layers by reference to known requirements – dependent and omnibus claims – incorporates the invalidity of the independent claims to the extent of dependence on that claim – lack of sufficiency of description

COSTS – O 62 r 11(2) – gross sum – evidence of detailed bill of costs – no appearance by respondent – further expense and delay – success by applicant – award of costs – amount logical, fair and reasonable

PRACTICE AND PROCEDURE – default judgment – revocation of patent – patentee chooses not to defend patent monopoly – Federal Court Rules O 10 r 7(1)(b) – O 11 r 23(1)(b) – O 33 r 3 (repealed) – s 190(3) Evidence Act – discretion in s 190(3) applied – relevance of O 33 r 3 (repealed) to s 190(3) – translations of prior art Japanese patent not a certified translation

Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 (31 March 2008)

[2008] FCA 406

TRADE PRACTICES – misleading and deceptive conduct – where applicant sells and promotes energy drink overseas using certain mark – where respondent commences using that mark without licence to sell energy drink in Australia – where applicant does not conduct business in Australia but alleges that it has reputation amongst target market in Australia on basis of exposure of its mark and that consumers would be misled or deceived – cross-claim by respondent that it has established requisite reputation – whether either party has established sufficient reputation – establishment of date at which reputation should be assessed

TORT – passing off – where applicant sells and promotes energy drink overseas using certain mark – where respondent commences using that mark without licence to sell energy drink in Australia – where applicant does not conduct business in Australia but alleges that it has reputation among target market in Australia on basis of exposure of its mark – whether sufficient reputation established

EVIDENCE – hearsay – business records exception – where television ratings data is sought to be tendered – where data is produced by computer extrapolating human representation – whether data is hearsay – where data is produced by third party as a product of its business – whether data falls within business records exception – whether data should be otherwise admitted under discretion in s 190(3) of Evidence Act 1995 (Cth)

Evidence Act 1995 (Cth) ss 59(1), 69, 76, 79, 146, 190(3)

Official Trustee v Pastro [1999] FCA 1631 (26 November 1999)

[1999] FCA 1631

BANKRUPTCY – ss 120 and 121 of the Bankruptcy Act 1966 (Cth) – whether transactions voidable as against the Official Trustee – “purchasers or encumbrancers in good faith” – mortgages to secure debts – intent to defraud creditors – meaning of good faith – imputation of mental state – family relationship.

Evidence Act 1995 (Cth), s 190

IBM Global Services Australia Limited in the matter of an Application for Writs of Certiorari and Prohibition, against the Australian Industrial Relations Commission [2005] FCAFC 66 (29 April 2005)

[2005] FCAFC 66

INDUSTRIAL LAW – industrial dispute – finding by Australian Industrial Relations Commission that industrial disputes existed between union and two employers – whether jurisdictional error – whether employees in respect of whom demands made eligible to join union – construction of rules of union relating to eligibility for membership – whether information technology incidental, ancillary or complementary to supply, installation or maintenance of telecommunications services – identification of part of business of employer – identification of principal function of part of business

WORDS AND PHRASES – ‘industrial dispute’, ‘incidental, ancillary or complementary’, ‘part of a business’, ‘principal function’

Evidence Act 1995 (Cth) ss 8, 48(1)(f), 52, 157, 190

Clark v R [2008] NSWCCA 122 (30 May 2008)

[2008] NSWCCA 122

CRIMINAL LAW
prescribed sexual offence
cross-examination of complainant
whether unrepresented accused should be required to provide written draft of proposed questions about complainant’s sexual reputation, experience or activity
unrepresented accused
court-appointed questioner
whether questioner should remain absent during complainant’s evidence-in-chief
whether accused should be required to provide before complainant gives evidence a written draft of questions proposed to be asked in cross-examination
whether miscarriage of justice
criminal law
possession
data on computer hard drive but “deleted”
whether retrievable
whether accused knew of its existence or ability to be retrieved
whether correct test for intentional possession applied
whether verdict unreasonable

Evidence Act 1995 ss94, 97, 98, 190(2)(b)

R v Ashton, Farmer and Randall [2003] TASSC 140 (4 December 2003)

[2003] TASSC 140

CATCHWORDS:

Criminal Law – Evidence – Evidentiary matters relating to witnesses and accused persons – Impeachment of credit and admissibility of evidence as to credit – Other cases – What constitutes “unfavourable” evidence – Crown application for leave to question own witness as if cross-examining – Factors relevant to the exercise of the discretion.

Evidence Act 2001  (Tas), ss38, 135, 136 and 190.

Adam v R [2001] HCA 57; (2001) 183 ALR 625, referred to.

R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474; R v Souleyman (1996) 40 NSWLR 712; R v Lozano (unreported, NSWCCA, 10 June 1997), discussed.

Aust Dig Criminal Law [537]

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)

Talukder v Dunbar [2009] ACTSC 42 (16 April 2009)

[2009] ACTSC 42

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

Commissioner of Patents v Sherman [2008] FCAFC 182 (20 November 2008)

[2008] FCAFC 182

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)

Insurance Australia Limited [2004] FCA 524 (7 May 2004)

[2004] FCA 524

CORPORATIONS – application for Court’s confirmation of scheme by which part of insurance business of a general insurance company is transferred to another general insurance company – transfer of compulsory third party motor accident part of insurer’s business to that insurer’s parent – requirement of s 17C(2) of Insurance Act 1973 (Cth) that application for confirmation may not be ‘made’ unless conditions set out in that subsection have been satisfied – requirement of s 17E(2) of Act that application for confirmation must be ‘made’ in accordance with prudential standards of Australian Prudential Regulation Authority – whether word ‘made’ refers to filing of form of application in Court Registry or to hearing of application – whether expression ‘affected policyholder’ in s 17C extends to include (a) holders of other policies issued by ‘transferor insurer’ which are not being transferred under the scheme, and (b) existing holders of policies issued by ‘transferee insurer’ – whether non-compliance with s 17C goes to Court’s jurisdiction – discretionary considerations – whether order should be made under s 190(1) of  Evidence Act 1995  (Cth) permitting hearsay evidence to be adduced on final hearing.

INSURANCE – application for Court’s confirmation of scheme by which part of insurance business of a general insurance company is transferred to another general insurance company – transfer of compulsory third party motor accident part of insurer’s business to that insurer’s parent – requirement of s 17C(2) of Insurance Act 1973 (Cth) that application for confirmation may not be ‘made’ unless conditions set out in that subsection have been satisfied – requirement of s 17E(2) of Act that application for confirmation must be ‘made’ in accordance with prudential standards of Australian Prudential Regulation Authority – whether word ‘made’ refers to filing of form of application in Court Registry or to hearing of application – whether expression ‘affected policyholder’ in s 17C extends to include (a) holders of other policies issued by ‘transferor insurer’ which are not being transferred under the scheme, and (b) existing holders of policies issued by ‘transferee insurer’ – whether non-compliance with s 17C goes to Court’s jurisdiction – discretionary considerations – whether order should be made under s 190(1) of  Evidence Act 1995  (Cth) permitting hearsay evidence to be adduced on final hearing.

Johnson & Page [2007] FamCA 1235 (18 October 2007)

[2007] FamCA 1235

FAMILY LAW – APPEAL – PARENTING ORDERS –ALLEGATIONS OF UNACCEPTABLE RISK OF SEXUAL ABUSE – ONUS AND STANDARD OF PROOF – Where trial Judge found no unacceptable risk of sexual abuse when ordering child spend unsupervised time with father – Whether trial Judge had applied correct legal principles in determining the question of unacceptable risk – Whether trial Judge erred in failing to give adequate reasons in determining the child would not be exposed to an unacceptable risk in the father’s care – Discussion of principles in M and M  [1988] HCA 68; (1988) 166 CLR 69 – Whether s 140 of  Evidence Act 1995  (Cth) applies – Whether trial Judge applied excessively high test – Trial Judge applied correct standard and onus of proof where no finding of actual abuse was sought.

FAMILY LAW – APPEAL – INJUNCTION RESTRAINING NON-PARTY – Injunction sought by independent children’s lawyer at conclusion of trial – Where mother’s new husband restrained from certain activities with the child – Where no allegations of abuse made against mother’s new husband – Consideration of exercise of discretion under s 68B – Whether adequate foundation for granting of injunction – Consideration of evidence required to dissolve injunction – Whether trial Judge’s discretion miscarried – Error by trial Judge established – Appeal allowed.

FAMILY LAW – COSTS – Where parties applied for certificates under Federal Proceedings (Costs) Act 1981 (Cth) – Where mother’s appeal against trial Judge’s finding of no unacceptable risk was wholly unsuccessful – Mother ordered to pay two-thirds of father’s costs – Where independent children’s lawyer sought injunction – No order for independent children’s lawyer’s costs.

Evidence Act 1995  (Cth) – Part 4.1, s 140, s 190

Leung v R [2003] NSWCCA 51 (1 May 2003)

[2003] NSWCCA 51

Criminal law

Evidence

Attempt to obtain possession of narcotic goods

More than commercial quantity

Circumstantial case

Prior entry into Australia using false name and documents

False banking and other documentation

Knowledge of goods in possession of accused

Suspicious circumstances combined with failure to make inquiry

Wilful blindness

Specific direction not required

Propensity

Character

Flight

Lies

Credibility

Ambit of s 108(3) of  Evidence Act 1995

Section 108(3) not limited to the particular witness in the witness box against whom relevant allegation made

Limitation on use of prior consistent statement admitted only under s 108(3)

Procedure to be adopted in relation to evidence concerning prior consistent statement

Error

No miscarriage of justice

Role of Appellant more than mere courier, not mastermind but performing organisational role in relevant criminal enterprise

Evidence Act: ss 55, 66, 97(1), 100, 102, 103, 108(3), 112, 135, 137, 190(2), 192; Part 3.8

Anthony Gordon Oates v The Honourable Daryl Williams QC in his capacity as Attorney-General & Anor [1998] FCA 136 (27 February 1998)

 [1998] FCA 136

ADMINISTRATIVE LAW – Consent by Minister to institution of criminal proceedings under Corporations Law – proceedings instituted more than five years after alleged criminal conduct – whether Minister failed to take into account relevant considerations – whether Minister obliged to give person who might be charged an opportunity to be heard before decision made whether to consent.

Corporations Law s 1316

Evidence Act 1995  (Cth) Part 3.2, s 67, s 190(3)

Edmunds-Jones Pty Limited and 1 Ors v Australian Women’s Hockey Association Inc [1999] NSWSC 285 (19 March 1999)

[1999] NSWSC 285

EVIDENCE – Hearsay rule and exception for business records – s69(3) of Evidence Act 1995 precludes exception where prepared for Australian proceeding – Application of s69(3) of  Evidence Act 1995  where pre-existing computer stored material retrieved and other adjustments made in responding to subpoenas – Effect of s48(1)(d) and (e) of  Evidence Act 1995  in relation to proof of documents retrieved from electronic storage – Discretion to permit waiver of rules of evidence under s190(3) of  Evidence Act 1995 .

Evidence Act 1995  s48(1)(d) and (e); s69(3)(a); s190(3) and (4)