PRACTICE AND PROCEDURE – discovery – public interest immunity

Evidence Act 1995 (Cth) s 130

TRADE PRACTICES – misleading or deceptive conduct

EVIDENCE – onus of proof – Jones v Dunkel – Browne v Dunn
68. … Mr Adam Reinisch’s attempt to explain why he had never seen a document by reason of it being sent to the “wrong fax number”, only for it to emerge that the number to which the document was sent was a number previously used by Mr Adam Reinisch – and possibly used in 2004 – is not the hallmark of a witness telling “the truth, the whole truth and nothing but the truth”.
69. That, of course, is part of the oath now set forth in the Schedule to the Evidence Act 1995 (Cth) and part of the oath in fact taken by Mr Adam Reinisch. The oath itself has been traced back to at least 1649: Mellinkoff, The Language of the Law (1963) at 172. An oath to “tell the truth”, it has also been pointed out long ago, was not always regarded as an oath to tell “the whole truth”: Silving, ‘The Oath’ (1959) 68 Yale L J 1329 at 1346 and 1527 to 1577. It should constantly be recalled that the requirement that an oath or affirmation be administered, as contemplated by s 44(1) of the Federal Court of Australia Act 1976 (Cth) and by s 21 of the Evidence Act 1995 (Cth), is not merely a procedural step which is but a precursor to a witness thereafter answering such questions as may be asked in such a manner as the witness may see fit. An oath or an affirmation is (in part) a solemn reminder to any witness of the serious obligation imposed to give a truthful account. The evidence given by a witness is central to the administration of justice.

INTERLOCUTORY APPEAL – Maintaining a sexual relationship with a child under 16 – Uncharged acts – Admissibility – Complainant sole source of evidence of uncharged acts – Tendency evidence – Evidence of sexual interest by accused in complainant – Evidence Act 2008 – s 97 and s 101 – Significant probative value substantially outweighing any prejudice – Relevance of Common Law as guide.

CRIMINAL LAW – Appeal – Crown appeal – Interlocutory appeal – Evidence – Hearsay – Admissibility of representations made by witness in evidence at committal concerning facts in issue – Evidence Act 2008 , ss 59, 65(3), 65(6), 137, 165 – Evidence Act 1958, s 55AB – Justices Act 1928, s 203 – Indictable Offences Act 1848 (U.K.).

MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of “professional misconduct” – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions – whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.

Evidence Act 1995, ss 11, 26

EVIDENCE – warnings concerning the complainant’s evidence – delay in making complaints – Longman warning given – Evidence Act 1995 (Cth) s 165B – risk of “false” or “recovered” memories – reliability of complainant’s evidence – uncharged acts not led for tendency or propensity purposes – evidence of uncharged acts does not have special confirmatory value towards events subject of the indictment – inconsistency in evidence between committal and trial does not necessarily suggest fabrication of genuine recollection

CRIMINAL LAW – Appeal against conviction – Miscarriage of justice – Appellant prohibited from putting his case – Rule in Browne v Dunn – Remedies available in criminal trial where rule breached – Availability of exclusion of evidence in New South Wales where rule breached – Generally a matter of last resort in a criminal trial – need to relate remedy to circumstances of particular case

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – review of finding of insider trading – whether Tribunal applied the correct test in determining whether information was ‘inside information’ for the purposes of s 1043A of the Corporations Act 2001 (Cth)

21. The Tribunal then considered the evidence, noting in the course of so doing, at [23], that the Evidence Act 1995 (Cth) does not apply to proceedings before the Tribunal, so that s 128 of that Act, which is designed to protect the evidence given in proceedings to which the Act applies from being used against the person giving the evidence in subsequent criminal proceedings where the person would otherwise be able to invoke the privilege against self-incrimination, does not apply to evidence given in the Tribunal. The Tribunal accepted, however, that in not giving evidence before the Tribunal the applicant had exercised his undoubted right not to say or do anything that might incriminate himself and that no inference adverse to his interests could be drawn as a result of him availing himself of the privilege against self-incrimination.

INCOME TAX – Exemption – Not-for-profit corporation established to facilitate the provision of face-to-face banking services in a rural town lacking such a service – Whether established for “community service purposes” –s 50-10 Income Tax Assessment Act 1997 (Cth)

EVIDENCE – Judicial notice – Non-local geographical location – Published map

Evidence Act 1995 (Cth) s 144