Category Archives: s. 139

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

R v Hunt [2014] NTSC 19 (2 June 2014)

http://www.austlii.edu.au/au/cases/nt/NTSC/2014/19.html

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Whether failure to involve Indonesian Police is unlawful or improper – Mutual Assistance in Criminal Matters Act 1987 (Cth)

- Evidence (National Uniform Legislation) Act 2011 (NT) s138
CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Accused not cautioned or informed of rights prior to questioning – Evidence (National Uniform Legislation) Act 2011 (NT) ss138 & 139

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Misleading conduct of police in obtaining consent to search – Evidence (National Uniform Legislation) Act 2011 (NT) s 138

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude – Evidence obtained in consequence of an impropriety – Defective police investigation – Whether subsequent conduct of police affects admissibility of evidence – Evidence (National Uniform Legislation) Act 2011 (NT) s 138

Azar v DPP [2014] NSWSC 132 (28 February 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/132.html

POLICE – legitimate exercise of powers – searches and detention of persons – whether suspicion was reasonably formed – presence of hire car in area known to police to be connected with drug use and supply, in circumstances where a person got into the passenger seat of a motor vehicle and then got out again within a short period of time – whether Parliament intended power to detain to amount to an arrest

Lodhi v Attorney General of New South Wales [2013] NSWCA 433 (18 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/433.html

ADMINISTRATIVE LAW – judicial review – whether juror in criminal trial ineligible – application to Sheriff to investigate – refusal by Supreme Court to consent to investigation – whether exercise of judicial or administrative function – whether ancillary to the exercise of judicial power – whether judge required to give reasons

CRIMINAL LAW – immunity of jury from investigation – effect on deliberations – power to investigate miscarriage in relation to conviction of federal offence

JURISDICTION – conviction for federal offence – request to NSW Sheriff to investigate improper conduct of juror – no appeal available against conviction – possible application under Part 7 of Crimes (Appeal and Review) Act 2001 (NSW) – whether exercise of federal jurisdiction

PROCEDURE – whether leave required to institute proceedings – leave not required under Felons (Civil Proceedings) Act 1981 (NSW), s 4

WORDS AND PHRASES – “improper conduct” – Jury Act 1977 (NSW), s 73A

R v FE [2013] NSWSC 1692 (12 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1692.html

EVIDENCE – s 138 and s 139 Evidence Act 1995 – improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 – unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl

CRIMINAL LAW – right to silence- requirement for caution- provisions relating to juveniles

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/283.html

EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice

Patsalis v Attorney General for New South Wales [2013] NSWCA 343 (16 October 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCA/2013/343.html

ADMINISTRATIVE LAW – judicial review – relief – whether quashing order available unless rights directly affected or decision a step in a process with legal consequences – whether jurisdictional or legal error – whether order available against judge of Supreme Court

APPEAL – refusal to grant an inquiry under Crimes (Appeal and Review) Act 2001 (NSW), Part 7 – decision by judge of a superior court – whether exercise of judicial function – whether appeal available under Supreme Court Act 1970 (NSW), s 101

CRIMINAL LAW – appeal and review – unsuccessful appeal – application for inquiry – whether doubt or question as to guilt – whether refusal to direct an inquiry reviewable

WORDS & PHRASES – “proceedings” – Crimes (Appeal and Review) Act 2001 (NSW), s 79 – “judgment or order” – Supreme Court Act 1970 (NSW), s 101

Lee v New South Wales Crime Commission [2013] HCA 39 (9 October 2013)

http://www.austlii.edu.au/au/cases/cth/HCA/2013/39.html

Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.

Words and phrases – “accusatorial system of criminal justice”, “derivative use immunity”, “direct use immunity”, “examination”, “fair trial”, “principle of legality”, “privilege against self-incrimination”, “real risk of interference with the administration of justice”, “right to silence”, “serious crime related activity”.

Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.

Mapham v Bannerman; Mapham v Bannerman [2013] ACTSC 157 (13 August 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/157.html

APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appeal from Magistrate’s finding of guilt – availability of appeal on ground that verdict unsafe and unsatisfactory – applicability of “proviso” in such appeals – whether error by Magistrate had resulted in substantial miscarriage of justice.

APPEAL – GENERAL PRINCIPLES – Interference with Judge’s Findings of Fact – appeal from Magistrate’s finding of guilt – Magistrate should not have applied Jones v Dunkel reasoning against appellant – no miscarriage of justice – appeal dismissed.

APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal on ground of Magistrate’s failure to uphold no case submission – error in rejecting no case submission – no miscarriage of justice if defence evidence incriminated appellant – defence evidence did not incriminate appellant – appeal allowed.

EVIDENCE – Admissibility and Relevancy – appellant in company of informant in relation to existing proceedings against appellant – without caution, appellant gave informant receipt relevant to existing proceedings – appellant charged with using false evidence, arising out of provision of receipt to informant – whether failure to caution meant that evidence of provision of receipt improperly obtained for purposes of use false evidence charge – whether person in company of investigating officer should be cautioned in order to avoid impropriety in obtaining evidence of any offence subsequently committed – evidence of subsequent offence not improperly obtained – no error by Magistrate in admitting evidence.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Relating to the Administration of Justice – use false evidence – offence alleged involved giving police officer false receipt in connection with charge of unlawful possession of stolen property – police officer spoke to offender in connection with unlawful possession offence – whether evidence of using false evidence offence obtained improperly because defendant not cautioned before providing receipt – no requirement for caution in circumstances of case – evidence not improperly obtained – no error by Magistrate in admitting evidence.

Patsalis – Application for Inquiry into conviction pursuant to s 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1597 (20 November 2012)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2012/1597.html

CRIMINAL LAW – application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 – applicant convicted in 1999 for murder – prior petition to Governor rejected – asserted fresh and new evidence – re-agitation of matters raised at trial – no doubt or question as to guilt

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

http://www.austlii.edu.au/au/cases/act/ACTSC/2010/145.html

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 Jason Robert Naa [2009] NSWSC 851 (26 August 2009)

 http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/851.html

Criminal Law – Evidence – Admissibility – Admissibility of statements made by the accused during police siege – where statements made during course of negotiations to have the accused disarm – whether statements “made in course of official questioning” within meaning of s 281 of Criminal Procedure Act 1986 – whether the accused should have been cautioned under s 139 of Evidence Act – if so, whether admissions should be admitted under s 138 of Evidence Act – Discretion to exclude admissions under s 90 of Evidence Act – whether admission of evidence would render trial unfair.

Evidence Act 1995 – ss 84, 85, 90, 138, 139

R v Cornwell [2003] NSWSC 97 (20 February 2003)

[2003] NSWSC 97

Criminal Law and Procedure – Admissibility of listening device material – s 138 Evidence Act – whether mistatement in application for warrant improper – whether recorded conversations should be edited – admissibility of evidence of uncharged criminal conduct to prove relationship of alleged co-conspirators.

Evidence Act 1995 – ss 137, 138, 139, 48(1), 97

R v Sophear Em [2003] NSWCCA 374 (12 December 2003)

[2003] NSWCCA 374

Evidence

Admissibility

Admissions

Police secretly record conversation with suspect

Failure to fully caution

persistent questioning

Whether evidence obtained improperly or whether admission of evidence unfair or unfairly prejudicial

Application of statutory discretions

Evidence Act (1995) (Cth)- s. 138, 90, 137, 138(3), 84, 85, 139, 139(5), 139(1), 138(2),138(1).

State of Tasmania v Stojakovic [2008] TASSC 48 (29 August 2008)

[2008] TASSC 48

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Police interrogation – Propriety of police questioning and other conduct by police – Administering caution – Particular cases – Impropriety or unlawfully obtained evidence – Question of sufficiency of accused’s understanding of English – Whether accused understood caution and questioning – Whether interview admissible or to be excluded.
Evidence Act 2001  (Tas), ss85, 90, 138, 139.
Criminal Law (Detention and Interrogation) Act 1995 (Tas), s5.
R v Deng [2001] NSWCCA 153, R v Taylor [1999] ACTSC 47, followed.
Aust Dig Criminal Law [433]

The Queen v Michael John Taylor [1999] ACTSC 47 (26 May 1999)

[1999] ACTSC 47

CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion as to admission or rejection of improperly obtained evidence – whether police caution understood by accused at interview – accused intoxicated – whether officer administering caution knew or ought to know that caution misunderstood – record of interview relevant to Crown case – impropriety resulted from mere inadvertence not deliberate contravention of accused’s rights – judicial discretion to exclude not exercised – ss 138(1), 139(1), 139(3), Evidence Act 1995 (Cth).

CONFESSIONS AND ADMISSIONS – in criminal proceedings – whether truth of admissions made by accused adversely affected by circumstances in which admissions made – whether evidence to be excluded – whether accused lacked choice in making admissions – whether admissions unreliable – “circumstances” to include physical and mental characteristics of person interviewed – truth of admissions adversely affected by overall circumstances – s 85(2), Evidence Act 1995 (Cth).

CONFESSIONS AND ADMISSIONS – in criminal proceedings – discretion to exclude confession where unfair to accused – whether confession unreliable or untrustworthy – overall circumstances of admissions relevant – evidence excluded – s 90,  Evidence Act 1995  (Cth).

WORDS AND PHRASES – “circumstances in which the admission was made”

Evidence Act 1995  (Cth), ss 85, 90, 138(1), 139(1), 139(3)

Van Der Lee & Ors v New South Wales & Ors [2002] NSWCA 286 (30 August 2002)

[2002] NSWCA 286

EVIDENCE – Privilege – Without prejudice communications attempting to negotiate a settlement of a dispute – Where such communications are alleged to evidence abuse of process – Whether admissible

PROCEDURE – Abuse of process – Proceedings against employees of deregistered company – Alleged purpose of obtaining money from holding company – Reasonable grounds for bringing proceedings against employees and against holding company – Whether proceedings against employees an abuse of process.

Evidence Act 1995 , ss.11, 125, 139.

Kelly v R [2004] HCA 12; 218 CLR 216; 205 ALR 274; 78 ALJR 538 (10 March 2004)

[2004] HCA 12

    A Note to Section 85(1) states “Subsection (1) was inserted as a response to the decision of the High Court of Australia in Kelly v The Queen (2004) 218 CLR 216.”

Criminal Law – Evidence – Admissibility of statement made to police after video-recorded interview was completed – Where statement was not made in response to any police question – Whether the statement was “made in the course of official questioning” within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995  (Tas).

Evidence – Admissibility – Statement made to police after video-recorded interview completed – Where statement was not made in response to any police question – Whether the statement was “made in the course of official questioning” within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Criminal Law – Appeal – Proviso – No substantial miscarriage of justice.

Statutes – Construction – Purposive construction – Use of definition sections to aid statutory construction.

Words and Phrases: “made in the course of official questioning”, “confession or admission”.

McNeill v The Queen [2008] FCAFC 80 (23 May 2008)

[2008] FCAFC 80

EVIDENCE – whether record of interview and handwritten statement induced by untrue representation and thus inadmissible pursuant to s 410 Criminal Law Act 1960 (NI) – whether trial judge erred in finding this evidence to be admissible – whether s 410(1)(a) impliedly repealed by Evidence Act 2004 (NI) – consideration of construction of s 410 and meaning of “untrue representation” – whether any untrue representations made and whether confession induced – no error in trial judge’s decision to admit record of interview and handwritten statement.

EVIDENCE – whether trial judge erred in failing to exclude record of interview and handwritten statement pursuant to ss 85, 90 or 138 Evidence Act 2004 (NI) – consideration of relevance and application of s 23 New Zealand Bill of Rights Act 1990 (NZ) – whether evidence obtained improperly – whether unfair to admit evidence – trial judge correctly found these sections not to be enlivened.

JURY – discharge of juror by reason of illness – order by trial judge to continue with a jury of less than 12 jurors – whether trial judge erred in application of s 5D Juries Act 1960 (NI) – s 5E Juries Act 1960 (NI) provided that s 5D applied – trial judge entitled to continue with 11 jurors.

EVIDENCE – exclusion of certain expert evidence by trial judge in exercise of discretion – interviewing officer had put parts of expert evidence to appellant – whether subsequent exclusion affected admissibility of confession – whether trial judge erred in failing to revisit earlier ruling regarding admissibility of confession – no error in trial judge’s refusal to revisit ruling.

CRIMINAL LAW – summing up by trial judge – whether trial judge failed to direct jury appropriately on certain forensic evidence by failing specifically to direct that the forensic evidence could have come from a source other than that put in Crown case – no obligation upon trial judge to put to jury every piece of evidence which might have undermined Crown case – whether trial judge erred in failing to direct jury in relation to the positioning of the deceased’s clothing at autopsy – positioning of clothing at autopsy not relevant – whether trial judge erred in failing to direct jury that witnesses unable to identify precise source of certain evidence – fact of source of evidence sought be to proved inferentially – no obligation upon trial judge to direct jury that witnesses unable to identify precise source – whether trial judge failed to direct jury about certain intermediate facts which needed to be proved beyond reasonable doubt – whether trial judge directed jury incorrectly about lies – whether trial judge failed to direct jury that DNA evidence could have originated from unidentified person – trial judge did not fail so to direct – no error in trial judge’s directions.

CRIMINAL LAW – unsworn statement given by appellant pursuant to s 405 Criminal Law Act 1960 (NI) – explanation by trial judge to jury of unsworn statement and how it may be used – whether trial judge commented impermissibly on appellant’s unsworn statement and infringed s 407 Criminal Law Act 1960 (NI) – no infringement as trial judge did not compare unsworn statement with right to give evidence.

PRACTICE AND PROCEDURE – application pursuant to s 27 Federal Court of Australia Act 1976 (Cth) for Court to receive further evidence on appeal – evidence that fact known to appellant in public domain at time of trial – Crown case that fact not in public domain – discussion of powers of Federal Court when hearing criminal appeals – discussion of principles governing application to admit further evidence in context of criminal appeals – whether miscarriage of justice by reason of evidence not being adduced to contradict Crown case or by reason of evidence not being put before Crown to prevent adduction of evidence by Crown that fact not in public domain – whether significant possibility that evidence would reasonably have led jury to return different verdict – very strong Crown case – no possibility that jury, acting reasonably, would have acquitted appellant – application refused as no miscarriage of justice demonstrated.

CRIMINAL LAW – whether conviction should be set aside on ground that verdict unsafe and unsatisfactory – discussion of role of appellate court – consideration of evidence to support Crown case – jury verdict not unsafe and unsatisfactory.

Evidence Act 1995  (Cth) s 8
Evidence Act 2004 (NI) ss 8, 20, 55, 56, 85, 90, 135, 137, 138, 139
Evidence Act 1995  (NSW) s 8

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 Pearce [2001] NSWCCA 447 (7 November 2001)

[2001] NSWCCA 447

Defrauding the Commonwealth (3 counts)- notional deduction of group tax – responsibility for not sending in employment declarations and for alterations to group number and company names – refusal of adjournment to allow further investigation – admissibility of statements made to ATO tax audit team – not obbtained improperly – ss 138 & 139 of Evidence Act – s 137 of Act – probative value not outweighed by danger of unfair prejudice – notes made by appellant as to meetings with ATO officers admissible as evidence of consciousness of guilt – no prejudice suffered by admission and later withdrawal of group tax summary as evidence to that effect given – ample evidence to support all counts – sentencing structure erroneous – appellant re-sentenced.

Evidence Act 1995  ss 50 137 138 139

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