Criminal Law — Evidence — Judicial discretion to admit or exclude evidence — Illegally obtained evidence — Particular cases — Records and returns as to fish catches — Whether discretion available.
Ridgeway v R (1995) 184 CLR 19
R v Swaffield (1998) 192 CLR 159
Nicholas v R (1998) 193 CLR 173, referred to.
Aust Dig Criminal Law 
Criminal Law – Jurisdiction, practice and procedure – Warrants, arrest, search, seizure and incidental powers – Search warrants – Generally – Susceptibility to collateral challenge – Misrepresentation to issuing officer – Matters relevant to trial judge’s discretion to exclude evidence.
Murphy v R (1989) 167 CLR 94;
Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356, distinguished.
Lego Australia Pty Ltd v Paraggio (1994) 53 FCR 542;
Flanagan v Commissioner of the Australian Federal Police (1995) 60 FCR 149;
R v Grassby (1988) 15 NSWLR 109, referred to.
Aust Dig Criminal Law 
R v S  TASSC 18
CRIMINAL LAW — Jurisdiction practice and procedure — Adjournment, stay of proceedings or order restraining proceedings — Stay of proceedings — Abuse of process — Delay in instituting proceedings — Whether the accused will be prejudiced or oppressed by the delay.
CRIMINAL LAW — Jurisdiction, practice and procedure — Information, indictment or presentment — Joinder — Joint or separate trials — Generally — Discretion of trial judge to make orders — Severance of counts of indictment.
(TAS) Aust Dig Criminal Law 
(TAS) Criminal Code 1924 s 326
(TAS) Evidence Act 2001 ss 97, 98(2)(a) and 101
(TAS) Aust Dig Criminal Law 
Jago v District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, applied
R v Randell  TASSC 78, considered
CRIMINAL LAW — General matters — Ancillary liability — Conspiracy — Generally — Whether offender must be capable of committing the crime the object of the conspiracy — Whether only one of the conspirators need be so capable.
CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Illegally obtained evidence — Generally.
Gallagher (1989) 44 A Crim R 256, applied
(TAS) Aust Dig Criminal Law 
(TAS) Evidence Act 2001 s 138(1)
(TAS) Aust Dig Criminal Law  
CRIMINAL LAW — Evidence — Similar facts — Relevance — Sexual Offences — Similar acts in relation to different persons — Whether related events — Whether significant probative value.
(TAS) Evidence Act 2001 ss 98(1)(b) and (2) and 101(2)
(TAS) Aust Dig Criminal Law 
L v Tasmania  TASSC 59; R v Ellis (2003) 58 NSWLR 700, applied
CRIMINAL LAW — Jurisdiction, practice and procedure — Warrants, arrests, search, seizure and incidental powers — Warrants — Search warrants — Issue and validity — Generally — Whether susceptible to collateral challenge for insufficiency of material before issuing officer.
CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence — Evidence unfair to admit or improperly obtained — Generally — Assessment of whether the desirability of admitting evidence outweighs the undesirability of its admission is a balancing exercise.
(TAS) Aust Dig Criminal Law 
(TAS) Aust Dig Criminal Law 
(TAS) Evidence Act 2001 s 138
McArthur v Williams (1936) 55 CLR 324; Murphy v R (1989) 167 CLR 94; Ousley v R (1997) 192 CLR 69; Question of Law Reserved on Acquittal (2000) 111 A Crim R 75,, referred
BAIL – review of refusal of bail in Magistrates Court – applicant charged with threat to kill – applicant convicted of offence of violence in previous 10 years – presumption in favour of bail “does not apply” – Bail Act 1992 (ACT), s 9B – unique provision – onus lies with applicant, though prosecution must be heard.
HUMAN RIGHTS – factors relevant to grant of bail – Bail Act 1992 (ACT), s 22 – relevance of right to liberty – Human Rights Act 2004, s 18 (ACT) – presumption of innocence and interests of the accused – balanced against attendance at trial and “future risk” to the community – refusal of bail for “future risk” tantamount to “preventative detention” – policy of mandatory arrest in family violence matters – management of mental health and strict bail conditions held to mitigate risk.
EVIDENCE – assessment as to risk must be based on more than mere suspicion – court may consider any “information” it considers “relevant and reliable” – Bail Act 1992 (ACT), s 19(6).
appeal against sentence
maliciously inflicting grievous bodily harm in company
whether error in factual findings by sentencing judge
whether error in failure to apply 25 per cent discount for guilty plea
whether error in appointment of applicant’s role in commission of offence
whether failure to give sufficient weight to subjective circumstances
 NSWCA 414
PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – Apprehended bias by way of prejudgment – Challenge to judge’s refusal to recuse himself – Where judge previously made credit and factual findings adverse to a party in an interlocutory judgment in separate proceedings – Whether findings in the interlocutory judgment expressed in such terms of finality that might give the impression to the reasonable fair-minded observer that the judge might not bring an impartial and unprejudiced mind to the issues in the proceedings – Material to which fair minded lay-observer may be assumed to have regard – Whether erroneous refusal of a judge of the Dust Diseases Tribunal to disqualify himself involves a decision in point of law so to ground an appeal under s 32(1) of the Dust Diseases Tribunal Act 1989 – Whether judge should have declined to disqualify himself on the ground of necessity
CORPORATIONS- oppression- numerous instances of oppression by director of companies- remedies- appropriate remedy a compulsory purchase order- valuation of shares. CORPORATIONS- oppression- remedies- compulsory buy-out order- valuation of shares- company’s assets solely land and business- relevance of capital gains tax (CGT) liability when sold- whether CGT deducted from value-whether selling costs to be deducted from gross proceeds. EQUITY- general principles- equitable defences- laches and delay- elements of laches- degree of knowledge of wrongdoing required depends on facts in all the circumstances- applicability of defence to oppression suit. EQUITY- fiduciary duties- directors’ duties to shareholders- when owed to shareholders. REAL PROPERTY- valuation of land- highest and best use- special value irrelevant in prevailing circumstances.
Evidence Act 1995, s 81
CONTRACTS – construction and interpretation of contracts – use of surrounding circumstances – whether ambiguity in the words of the contract is required before surrounding circumstances can be examined – businesslike or commercially sensible construction – relationship with surrounding circumstances – scope of admissible surrounding circumstances – CONTRACTS – construction and interpretation of contracts – subsequent conduct – whether the subsequent conduct of the parties can be examined to construe a written contract – relationship with objective theory of contract – extent of permissible use of evidence arising after the execution of a written contract – CONTRACTS – construction and interpretation of contracts – recitals – use of recitals as an aid to construction – EQUITY – equitable remedies – rectification – common intention of the parties – role of commercial context in determining the common intention of the parties – rationale for rectification – nature of the common intention required – standard of proof for common intention of the parties – test for appellate intervention – ESTOPPEL – equitable estoppel – whether the parties could be taken to have assumed or expected the existence of a binding agreement which differed the written agreement as executed – whether parties would be assumed to be free to withdraw from negotiations – estoppel by convention – need for a common assumption to be adopted by both parties – whether estoppel by convention can arise from pre-contractual negotiations
 FCA 1508
EVIDENCE – parties attended a Court ordered mediation conference – whether evidence of communications of offer of compromise made at the mediation conference admissible on the question of costs.
COSTS – whether Commissioner acted unreasonably in not accepting offer of compromise – obligation on Commonwealth to act as a model litigant – whether compassionate considerations a relevant factor.
Evidence Act 1995 (Cth) s 131, 131(1), 131(2)(h)
 NSWSC 1375
AMENDMENT TO PLEADINGS – Application to amend Cross-Claim by guarantors (defendants) against lenders/mortgagees (cross-defendants) – issue as to whether the cross-claimant guarantors were to receive the benefit of the loan – relevant to relief sought under Contracts Review Act 1980 – true purpose of loan sought to be raised under proposed amendments – contrary to purpose disclosed in principal affidavit of first cross-claimant – APPLICATION RE EVIDENCE – to adduce new or additional evidence to explain circumstances in which a contrary or contradictory version as to the purpose of the loan was given by first cross-claimant in unrelated proceedings at an earlier time – issues of delay and need to recall witnesses and likelihood of a prolonged hearing resulting – application refused – principles enunciated in Aon Risk Services Australia Limited v Australian National University applied – EVIDENCE – whether certificate under s.128, Evidence Act 1995 may be given where potentially incriminating evidence sought to be led in cross-examination or re-examination – whether such evidence can be considered to be given under objection or willingly by the witness – held a s.128 certificate may not be given with respect to such evidence as foreshadowed on the application for leave
 NSWSC 1363
APPEAL AND NEW TRIAL – appeal – whether appeal raises questions of law – sale of goods – whether claimed transactions established – documentary evidence – section 183 of the Evidence Act 1995 – Jones v Dunkel inferences – whether nemo dat quad non habit rule arose – appeal dismissed
[This decision seems to have been removed. It can still be located at LexisNexis]
CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered
EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied
EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt
Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165
 NSWSC 1344
EVIDENCE – facts excluded from proof – privilege in respect of self-incrimination – application for a certificate to be given under s 128 of the Evidence Act for evidence proposed to be given by a defendant in chief by affidavit – whether the defendant in those circumstances “objects” within the meaning of s 128(1) – consideration of Ferrall v Blyton  FamCA 1442; (2000) 27 Fam LR 178 and Cornwell v R  HCA 12; (2007) 231 CLR 260 – held that defendant did not object within the meaning of s 128 as defendant not otherwise compelled to give the evidence
PROCEDURE – courts and judges generally – precedents – decisions of particular courts – conflict between ratio of Full Family Court judgment and dicta of High Court majority judgment – both entitled to significant deference but neither strictly binding upon New South Wales Supreme Court – consideration of phrase “seriously considered dicta” – consideration of proper approach to conflicting non-binding authorities
 ACTSC 154
CRIMINAL LAW – trial by Judge alone – act of indecency upon person under age of 16 years.
CRIMINAL LAW – evidence – hearsay evidence – admissibility under Evidence Act 1995 (Cth) – out of court representation to police officer – representation as to kind of evidence witness could give in trial – content and purpose of representation – evidence inadmissible – Evidence Act 1995 (Cth), s 66(3).
Evidence Act 1995 (Cth), s 60, s 66
 NSWSC 1414
application for leave to cross examine unfavourable witness
hearsay evidence including admissions
s 137 discretion to exclude
whether voir dire or cross examination in front of jury.
Whether settlement of proceedings had been agreed
Construction of correspondence including emails
 FCA 1330
TRADE PRACTICES –interlocutory injunction – restraining from importing distributing supplying offering for sale or selling goods of a same design and appearance – passing off – breach of ss 52 and 53 of the Trade Practices Act 1974 (Cth).
EVIDENCE – hearsay expert opinion – need to comply with ss 76 and 79 of the Evidence Act 1995 (Cth).
 NSWCA 369
LIMITATION OF ACTIONS – postponement of the bar – disabilities – nature of the disability required – type of affairs with respect to which the disability must relate – nature of the suspension arising from a period of disability – meaning of “cause of action” in the Limitation Act 1969 – APPEAL AND NEW TRIAL – appeal – no order made in the court below – incomplete application for leave to appeal – procedure for dealing with a purported appeal when there was no order made in the District Court below – transfer of proceedings in the District Court for the purpose of making an order – PROCEDURE – interlocutory decisions – limitation of actions – methods by which a claim that a limitation period has been suspended might be litigated – EVIDENCE – admissibility of a history recorded in a medical report – WORDS AND PHRASES – “cause of action” – “substantially” – “affairs” – “management of his or her affairs”
 FCA 1363
PRACTICE AND PROCEDURE – Application for leave to inspect documents produced under subpoena directed to expert witnesses – Claim for legal professional privilege – Whether claim engaged with a known category of legal professional privilege – Whether privilege should be regarded as waived in terms of current Court practice and procedure – Held no claim for legal professional privilege – Held leave to inspect documents granted
Evidence Act 1995 (Cth) ss 118, 119
 FCA 1306
EVIDENCE – whether hearsay evidence of statements by persons overseas should be permitted – the extent to which the proposed evidence was first hand or more remote hearsay – no independent evidence corroborating any hearsay version – whether undue prejudice to the respondent.
PRACTICE AND PROCEDURE – application to take evidence by video link – requirement to make out a case for such an order where it is opposed – discussion of the possible difficulties associated with video evidence.
PRACTICE AND PROCEDURE – security for costs – consideration of application for further security.
Evidence Act 1995 (Cth) ss 59(1), 62, 63, 64, 67, 68, 75, 135, 136, 192, 192A
CRIMINAL LAW – reference appeal by Director of Public Prosecutions – whether question of law arose “at” or “in relation to” a trial – exchanges in transcript between judge and counsel do not give rise to a question of law – defective application for a reference appeal.
 FCA 1320
EVIDENCE — Expert evidence — Application to reject tender of expert report — Relevance — Whether expert’s evidence based on specific knowledge based on that expert’s study, training or experience — Importance of identifying the relevant opinion of the expert and the material upon which the opinion is based — Whether expert has expertise with respect to the issues on the pleadings — Held expert does have particular expertise — Held expert report covers wider issues than those on the pleadings — Held difficulties distinguishing fact from opinion within expert report — Held detailed editorial exercise would be necessary to separate relevant from irrelevant – Tender of whole pressed – Held Application allowed and tender of report rejected
Evidence Act 1995 (Cth) ss 55, 56, 76, 79
 ACTSC 146
DEFAMATION – application to amend statement of claim – minor amendments made – no issue of principle
PRACTICE AND PROCEDURE – application to amend statement of claim – previously amended 3 times – 7 years since claim commenced – long delays – remarks on case management
Evidence Act 1995 s 136
 NSWSC 1223
Admissibility – Coincidence – Customs offence
 FCA 1222
TRADE MARKS – applicant seeking rectification by cancellation of trade mark – construction of s 88 of Trade Marks Act 1995 (Cth) – grounds relied upon not enlivening s 88 of the Act
PRACTICE AND PROCEDURE – quasi summary nature of trade mark opposition proceedings – orders by consent dismissing appeal to Federal Court – undertakings noted including undertaking “not to threaten the Respondent … with any form of action” – construction of consent orders and undertakings – threaten in the context intended to comprehend “the initiation” of an action
Evidence Act 1995 (Cth) s 140
 NSWSC 1320
facts excluded from proof
on grounds of privilege
call for emails under s 36 Evidence Act
emails produced but client privilege claimed
waiver of privilege
emails made available
Evidence Act 1995 (NSW) s 36
EVIDENCE – admissibility of expert report – where report does not sufficiently disclose rationale – leave to adduce supplementary evidence
(NSW) Evidence Act, 1995 s 79(1)
 FCA 1238
PRACTICE AND PROCEDURE – discovery of documents – discovery from non-parties to the proceedings – discovery against third parties is exceptional and the power to order third-party discovery must be exercised with restraint – inadequate evidence – no proper basis for ordering discovery – Notice of Motion dismissed.
Evidence Act 1995 (Cth) s 75
 NSWCCA 259
CRIMINAL LAW AND PROCEDURE
Convictions for sexual offences
Evidence called by Crown from spouse of the appellant
Leave to cross examine
Ruling that evidence unfavourable giving rise to grant of leave not eroneous
Direction by trial judge
Absence of objection at trial
Comment on scope of rule 4 of Criminal Appeal Rules
 FCA 1196
EVIDENCE – pecuniary penalty proceedings under s 16(1) of the Occupational Health & Safety Act 1991 (Cth) – whether to admit written victim impact statements from victim’s family members
Held: Immediate family of deceased worker may table written material detailing the impact of death of deceased worker on their lives, being background information of assistance to Court. Material not taken into account to increase or decrease pecuniary penalties
Evidence Act 1995 (Cth) s 56(2)
 NSWCA 349
APPEAL – nature of appeal indicated by whether first instance decision best characterised as an exercise of ‘discretion’ or ‘judgment’ – ex parte nature indicates first instance determination should be treated in the same way as an inference from facts – principles in Warren v Coombes applicable
CRIMINAL LAW – procedure – confiscation of proceeds of crime and related matters – restraining or freezing order – evidence and procedure – requirements of affidavit under s 10 Criminal Assets Recovery Act 1990
CRIMINAL LAW – procedure – confiscation of proceeds of crime and related matters – restraining or freezing order – evidence and procedure – police officer issuing charge not sufficient to establish reasonable grounds for suspicion under s 10 Criminal Assets Recovery Act 1990
EVIDENCE – admissibility and relevancy – hearsay – interlocutory proceedings – need not identify the ultimate source of the statement
WORDS & PHRASES – “reasonable grounds for suspicion”.
 FCA 1175
PRIVILEGE – consideration of public interest immunity claims at the second stage – requirement to consider and balance the requirements of the due administration of justice against the national interest and the interests of national security – access to most documents refused
Evidence Act 1995 (Cth), s 69, s 183
SECURITY FOR COSTS – resident outside jurisdiction – impecunious – inability to work because of injury – effect to stifle proceedings – conditional costs agreement with success payment not, on the facts, undertaking litigation for a commercial profit – order refused
PRIVILEGE – communication with third parties for the purpose of settling proceedings – s 131 Evidence Act 1995 – not applicable to costs agreement
Criminal Practice and Procedure
charge of murder
treating neuorsurgeon’s opinions as to the degree of force required to inflict fatal injuries and the manner injuries were inflicted.
Evidence Act 1995 s 79(1), s 137
EVIDENCE – expert evidence – whether expert report admissible without acknowledgment of expert code of conduct – whether relevant time for knowledge is creation of report or swearing of affidavit annexing report – whether exceptional circumstances.
Barnes and Addy — Breaches of contract — Secret profits — Diverting business opportunities from former employer to competing business — Confidential information — Plaintiff law firm offering legal services and business consultancy in Kazakhstan brings proceedings against former employees for having furthered their own interests to their employers detriment by various means — Jurisdiction — Enquiry as to whether foreign law applies to determination of matters litigated — Principled approach to determining questions of foreign law — Proceedings involve consideration of several potentially applicable systems of law — Multiplicity and overlapping nature of issues require court to consider the level of abstraction appropriate to address issues so as to discharge its ultimate mandate of doing justice between the parties — Fraud — Principles which inform the proper approach to whether or not particular conduct is proven to have been fraudulent — Conspiracy to defraud — Principles — Interference with contractual relations-Principles-Causation-Abuse of process — Defendants claim that proceedings amount to an abuse of process and required to be summarily dismissed-Consideration of what amounts to an abuse of process — Case management — Allegations of abuse of process intertwined with principal issues litigated — Efficiently dictates that both the plaintiffs pleaded case as well as the defendant’s abuse of process case be litigated together — Causation — Remedies — Constructive trusts — Election — Split election — Nullus commodum capere potest de injuria sua propria — Overriding purpose rule — Achievement of a just, timely and cost-effective resolution of dispute has an effect upon the court and upon other litigants — Commercial life depends on timely and just payment of money such that those who claim to be entitled to money should know, as soon as possible, whether they will be paid and those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay — Ethos of Commercial List to determine disputes speedily
Criminal Practice and Procedure
charge of murder
previous representations of domestic violence not admitted.
Evidence Act 1995 s 55, s 65(2)(b), s 97(1), s 137
PRACTICE AND PROCEDURE – applicant company conducts tours in remote Western Australia – applicant part of tourism business jointly operated by applicant’s sole director and the second respondent – applicant seeks order for delivery of booking records allegedly taken by respondents – whether applicant entitled to relief sought – standard of proof – causes of action raised by applicant after judgment reserved
Held: Application for order for delivery of booking records dismissed
Evidence Act 1995 (Cth) s 140(2)
EVIDENCE – affidavits and statutory declarations – affidavits – plaintiff seeks to read affidavit of conversation with person unable to be called as a witness – where plaintiff’s solicitor sent letter to defendant’s solicitors purporting to give notice under (NSW) Evidence Act 1995, s 67 of an intention to adduce evidence of previous representation in reliance on s 64(2) – where notice substantially complied in form with requirements of (NSW) Evidence Regulations 2005, reg 4 – where requisite 21 days prior service not complied with – where there would be potential prejudice from inability to investigate – leave to read affidavit refused
(NSW) Evidence Act 1995, s 64(2), s 67, s 68
[CONTEMPT] – Penalty hearing – Special circumstances warranting lenient approach
EVIDENCE – defamation – admissibility and relevance – facts relevant to facts in issue – facts showing state of mind – credit and credibility – objection to the tender of evidence on the contention that it is irrelevant, unfairly prejudicial, previous representation and does not qualify as business record – Evidence Act 1995 ss 44, 69 and 135
EVIDENCE – defamation – admissibility – objection to question asked in cross-examination on contention that it attempted to adduce tendency evidence without giving reasonable notice – credit and credibility – Evidence Act 1995 ss 97, 103 and 135
application for discharge of jury
error of law on face of record
decision of State Parole Authority
determination not to rescind order revoking parole
reasonableness of decision
onus of proof
not accepting evidence despite finding not untruthful
whether witnesses had interest in outcome of proceedings
assessment of voice identification evidence
 FCAFC 116
CONTRACT – implication of terms in law – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – whether implied term that the university had proprietary rights in the inventions, patent applications and patents – whether term implied in law that employee held them upon trust for the university – special features of universities and academic pursuits – freedom to publish results of research.
Held: there was no “duty to invent” and the conditions required for the implication of a term at law were not satisfied.
FIDUCIARY DUTIES – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – whether implied term that the university had proprietary rights in the inventions, patent applications and patents – whether term implied in law that employee held them upon trust for the university – special features of universities and academic pursuits – freedom to publish results of research.
Held: in absence of implication of terms in law, there was no independent fiduciary obligation of a kind and scope that made employee accountable to university for the inventions, applications for patents, or patents.
PATENTS – inventive concept – identification of inventive concept – time when inventive concept was complete – identification of inventors – person employed by university as professor of surgery – express contractual obligations, inter alia, to undertake research, to organise research and generally to stimulate research among the university’s staff and students – employee part of a team carrying out research directed to treatment of tumours in the liver – funding of the research came from numerous bodies – the employee had been engaged on research of that kind before joining the staff of the university as well as during his tenure there – inventions and applications for and the grant of patents resulted from the research – claim by university that employee accountable to university for inventions, patent applications and patents resulting from research done by him during and in course of his employment – whether inventive concept was complete during period of his employment – distinction between inventive concept on one hand and verification and reduction to practice on other hand – whether employee was the inventor.
CONTRACT – express terms – person employed by university as professor of surgery – contractual term incorporating university’s patents regulations to effect that employee making an invention during and in the course of employment must promptly notify Vice-Chancellor who is to refer matter to Patents Committee for recommendation whether university should assert rights in invention and apply for a patent – university’s failure to maintain patent committee mechanism – failure to maintain mechanism on which its rights dependent – non-fulfilment of contingent condition.
Held: on the evidence, university had abandoned the patent committee mechanism and the term incorporating the patent regulations did not avail university.
Evidence Act 1995 (Cth) s 144
 FCAFC 105
ADMINISTRATIVE LAW — voluntary statement of reasons — filed “to assist the parties” — filing constitutes no joinder of issue — legal advice in minute making recommendations — no waiver of privilege
PRACTICE AND PROCEDURE — leave to appeal — legal professional privilege –statement of reasons — statement as to effect of legal advice — waiver
Evidence Act 1995 (Cth) s 122(5)(a)(iii)
 ACTSC 98
EVIDENCE – admissibility – identification evidence relying on photograph of accused –photograph taken during execution of defective search warrant – whether identification evidence obtained improperly or in contravention of Australian law, or in consequence of impropriety or contravention.
EVIDENCE – admissibility – identification evidence relying on photograph of accused –photograph taken during execution of defective search warrant – application of s 230 Crimes Act 1900 (ACT) – whether photograph should have been retained by police if taking of photograph not authorised by s 230 Crimes Act 1900 (ACT) – whether s 231 applies to material taken in mistaken belief that s 230 permits taking of material – whether, if s 231 does not apply, material can be retained or should be destroyed.
EVIDENCE – admissibility – identification evidence relying on photograph of accused – scope for taking identification material apart from s 230 Crimes Act 1900 (ACT) – effect of Surveillance Devices Act 2004 (Cth)].
EVIDENCE – admissibility – application of s 138 Evidence Act 1995 (Cth) – evidence obtained in consequence of an impropriety or contravention of Australian law – whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained in the way it was obtained – public interest in compliance with restrictions on police powers to take identification material.
Evidence Act 1995 (Cth), s 138
 NSWSC 892
EVIDENCE  – Admissibility and relevancy – in general – other cases – Judicial discretion to exclude – Evidence Act 1995, s 135
Evidence Act 1995, ss135, 136