Monthly Archives: February 2011

R v Bulger [2010] ACTSC 156 (13 December 2010)

CRIMINAL LAW – Complainant’s evidence inconsistent with that of all other prosecution witnesses – prosecution failure to make out offence as particularised in case statement – evidence raised possibility of self-defence – prosecution failure to negative self-defence – court not satisfied beyond reasonable doubt of accused’s guilty – accused acquitted.

Evidence Act 1995 (Cth), s 38

Australian Competition and Consumer Commission v April International Marketing Services Australia Pty Ltd (No 8) [2011] FCA 153 (25 February 2011)

TRADE PRACTICES – alleged price fixing arrangements made at overseas meetings – ACCC and certain respondents jointly seek proposed declarations, injunctions and penalties on basis of agreed facts and admissions – whether appropriate

Evidence Act 1995 (Cth) s 191(3)(a)

Australian Securities and Investments Commission v Fortescue Metals Group Ltd [2011] FCAFC 19 (18 February 2011)

CORPORATIONS LAW – continuous disclosure – misleading and deceptive conduct – listed company made announcements that it had entered binding agreements – agreements were merely agreements to negotiate – whether continuous disclosure obligations had been breached – whether obligation not to engage in misleading or deceptive conduct had been breached


78. It is convenient to note here some other issues considered by the trial judge. At trial, the respondents had submitted, on the basis of the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, that given the seriousness of the allegations made by ASIC, the standard of proof should be “as close to the criminal standard as could be in any civil proceeding” (at [72]). The trial judge held that the standard of proof to be applied is the balance of probabilities as prescribed by s 1332 of the Act. His Honour said (at [82]):

In conclusion, the standard of proof that I must apply is the balance of probabilities as prescribed by s 1332, and I accept that in deciding whether ASIC’s allegations are made out on the balance of probabilities I am required to take into account the causes of action and the gravity of the matters alleged and their consequences: s 140(2) Evidence Act ; Briginshaw [1938] HCA 34; 60 CLR 336. If inferences are to be drawn, ASIC has to establish that the circumstances appearing from the evidence give rise to a reasonable and definite inference and not merely to conflicting inferences of equal degrees of probability: Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287; [2009] NSWSC 287; (2009) 256 ALR 199 at [186]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; 162 FCR 466 at [38].

PWD v The Queen [2011] HCATrans 32 (11 February 2011)

Heydon J
We are of opinion that the application for special leave should be dismissed. The substantive points made by Mr Sutherland will remain available to be used by the accused in the event that the trial ends in his conviction. We think there are insufficient prospects of success in an appeal based on the present application to justify the grant of leave. We also think that, assuming as Mr Sutherland submitted, there is an emerging difference between the approach in New South Wales and Victoria to the operation of sections 97 and 98 of the Evidence Act , the proceedings as they now stand are not a satisfactory vehicle to examine what the law actually is since it turns on a ruling on evidence on the strength of statements of what it is expected the witnesses will say, as distinct from the actual evidence they will, in due course, give. For those reasons, the application must be dismissed.

P T v The Queen [2011] VSCA 43 (23 February 2011)

CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 10 (2 counts), gross indecency, indecent act with child under 16 (2 counts) – Delay in complaint – Whether applicant suffered ‘significant forensic disadvantage’ – Applicant absent because of illness during jury deliberation – Whether additional warning required – Application refused – Crimes Act 1958 (Vic) s 61(1A), Evidence Act 2008 (Vic) s 165B.

CRIMINAL LAW – Appeal – Sentence – Whether sentence of eight years’ imprisonment with non-parole period of six years manifestly excessive – Whether changes in applicant’s health constituted new evidence – Application refused.

WORDS AND PHRASES – ‘Significant forensic disadvantage’.

M R v The Queen [2011] VSCA 39 (18 February 2011)

INTERLOCUTORY APPEAL – Sexual offences – Counts 1 and 2 charge child pornography offences and count 3 charges indecent act – Single complainant is applicant’s daughter – Crown seeks to use photographs and video relating to counts 1 and 2 as tendency evidence relevant to count 3 – Admissible as evidence of applicant’s sexual interest in daughter – Judge correct to admit evidence and refuse severance – Application refused – Evidence Act 2008 , s 97.

Tran v The Queen [2011] HCATrans 30 (11 February 2011)

French CJ
At the applicant’s trial for a number of drug-related offences the Crown sought to produce evidence from a police officer, said to be based on that officer’s specialised knowledge devised from operational experience, that words used in intercepted telephone conversations, to which the applicant was a party, were coded terms referring to the identity, quantity and prices of specific drugs. The trial judge held the evidence admissible pursuant to section 79 of the Evidence Act on the basis of claimed specialised knowledge.

The applicant complains that the evidence given by the witness was conclusionary and did not expose the factual basis upon which the conclusions were offered. However, the general findings of fact in relation to the witness’ experience were sufficient, in our opinion, to support the admissibility of his evidence in this case pursuant to section 79.

The applicant also complains that the witness indicated that in forming his opinion he had made reference to a police dictionary of terms and a price list, which he declined to produce. He said on the voir dire examination that he referred to but did not rely upon the dictionary.

In our opinion, the Court of Appeal was correct to find that, notwithstanding the non-production of the dictionary, the reasoning processes were adequately exposed. Special leave will be refused.

British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 (9 February 2011)

Courts and judges – Bias – Reasonable apprehension of bias by reason of pre-judgment – Where judge previously made finding on same issue in unrelated interlocutory proceeding – Knowledge and characteristics to be attributed to fair-minded lay observer – Whether fair-minded lay observer taken to understand rules of evidence and procedure – Whether later statements of judge in recusal application relevant to fair-minded lay observer’s assessment – Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288.

Words and phrases – “fair-minded lay observer”, “reasonable apprehension of bias”.

Construction, Forestry, Mining and Energy Union v Stuart-Mahoney [2011] FCA 56 (8 February 2011)

INDUSTRIAL LAW – appeal from Federal Magistrates Court – civil penalty proceedings – whether there was action or threat of action having prejudicial effect on employment – whether onus of negativing proscribed reason reversed by s 809 of the Workplace Relations Act 1996 (Cth)

EVIDENCE – application of s 140 of the Evidence Act 1995 (Cth) – whether pleaded allegation sufficiently established by the evidence – whether inference of contravening conduct more probable than other available inferences

PECUNIARY PENALTIES – appeal from Federal Magistrates Court – whether pecuniary penalties imposed for contravention of ss 789 and 790 of the Workplace Relations Act 1996 (Cth) were excessive

Evidence Act 1995 (Cth) s 140

Australian Competition and Consumer Commission v Jones (No 5) [2011] FCA 49 (4 February 2011)

HIGH COURT AND FEDERAL COURT – Apprehension of bias as a result of past findings as to credit of the respondent – Where application for Judge to not conduct trial was withdrawn – Whether Judge should of his own motion not to conduct the trial – Where no findings as to credit were required to be made in the course of the trial

Held: No need in circumstance to refrain from hearing trial

PRACTICE AND PROCEDURE – Application by respondent to adjourn the trial – When trial dates had been fixed six months in advance – Where proceeding involved a matter touching on public health – Where respondent also requested that the case be dealt with as soon as possible – Where next available hearing date would have involved considerable delay – Where no offer was made by the respondent to pay the applicant’s costs thrown away by any adjournment

Held: In the interests of justice not to adjourn the trial

EVIDENCE – Affidavit evidence – Admissibility of opinions in articles annexed to affidavit (of the respondent) which were not authored by the deponent – Where applicant would not have had opportunity to cross-examine the authors of the articles in question – Where unfairness to the applicant could have occurred were the opinion evidence to be admitted

Held: The articles not be admitted into evidence

TRADE PRACTICES – Misleading or deceptive conduct – Whether respondent engaged in misleading or deceptive conduct in the contravention of s 52 or s 53(c) of the Trade Practices Act 1974 (Cth) – Where respondent represented that his “program” could be followed to cure cancer – Where representations were admitted – Where the applicant led medical opinion evidence probative of a conclusion that the admitted representations were misleading or deceptive – Where respondent led neither compelling medical evidence nor evidence to support the kind of intuitive reasoning outlined in EMI (Australia) Ltd v Bes (1970) 2 NSWR 238

Held: The representations were misleading or deceptive

Evidence Act 1995 (Cth) s 79

Director of Public Prosecutions v Walker [2011] ACTCA 1 (3 February 2011)

CRIMINAL LAW – Attorney-General’s reference – principles – reference limited to points of law arising in relation to the trial – question referred must be phrased with sufficient precision or appropriately for the Court to hear and decide – s 37S Supreme Court Act 1933 (ACT)

CRIMINAL LAW – offences of sexual intercourse without consent and statutory indecency – mens rea expressed as knowledge or recklessness – whether one or two offences depending on accused’s knowledge or recklessness – primary judge required Crown to elect between knowledge and recklessness on charges on an indictment for offences against ss 54 and 60 of the Crimes Act 1900 (ACT) – whether charge framed in terms of knowledge and recklessness duplicitous

Held: only one offence created – Crown need not elect between knowledge and recklessness

Evidence Act 1995 (Cth) s 66(2)

Griffiths v Rose [2011] FCA 30 (31 January 2011)

INDUSTRIAL LAW – Termination of employment – Breach of Australian Public Service Code of Conduct – Unauthorised use of computer equipment – Whether certain prohibitions upon use contrary to right of privacy – Whether evidence of unauthorised use collected contrary to right of privacy – Privacy Act 1988 (Cth) s 16 – International Covenant on Civil and Political Rights Art 17

Evidence Act 1995 (Cth) s 138

Tasmania v Cadman [2011] TASSC 2 (31 January 2011)

Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Other matters – Admission made to police officer following flight – Whether admission made during official questioning – Whether reasonable explanation why audio visual record of admission could not be made – Subsequent audio visual record of interview with the accused where he declined to adopt or confirm the making of the admission – Whether reasonable explanation why audio visual record of adoption or confirmation of the admission could not be made.

Kelly v R [2004] HCA 12; (2004) 218 CLR 216; followed.

Director of Public Prosecutions v Cook [2006] TASSC 75; R v Julin [2000] TASSC 50, referred to.

R v McKenzie [1999] TASSC 36, disapproved.

Evidence Act 2001 (Tas), s85A(1).

Aust Dig Criminal Law [2754]

M A v The Queen [2011] VSCA 13 (27 January 2011)

CRIMINAL LAW – Interlocutory appeal – Admissibility of identification evidence – Certification by trial judge pursuant to s 295(3)(a) Criminal Procedure Act 2009 – Whether ruling was attended by sufficient doubt to require certification – Leave to appeal ordinarily inappropriate where short trial or where ruling concerns routine evidentiary questions involving exercise of discretion – Evidence Act 2008 s 137 – Whether principles in House v The King apply – Probative value – Leave to appeal refused

La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd [2011] FCAFC 4 (19 January 2011)

DAMAGES – measure of damages – respondent negligently valued land for purposes of a loan – if properly advised the appellant would have sought to make an alternative loan – causation – loss of a chance – standard of proof – calculation of loss – whether capital loss and income loss should be segregated

EVIDENCE – opinion evidence – what constitutes opinion evidence

Evidence Act 1995 (Cth) ss 56(2), 76, 78, 135

JGM Nominees Pty Ltd & Ors v Australvic Pty Ltd (in liq) (No 3) [2010] VSC 623 (23 December 2010)

APPEAL – decision of associate judge – funds in court – balance of proceeds of mortgagee’s sale of property – who entitled to funds – whether property held on trust under joint venture agreement – whether trust a sham – whether property subject of charges – whether debts owing and secured by charges – appeal do novo – appeal dismissed – Supreme Court (General Civil Procedure) Rules 2005, r 77.06.

PRACTICE AND PROCEDURE – costs – appeal against decision of associate judge – order that liquidator should pay costs personally – whether should have been order for liquidator to recover costs and expenses from disputed funds in court – liquidator at all times reasonably conducted defence of company – liquidator performed statutory function as officer of the court – appeal allowed.

Bell J
“72 Australvic took objection to the admission of this affidavit, both before the associate judge and me. I reject the objection. The affidavit is a clear admission against interest by a party to this proceeding on the matter which is primarily in issue – whether the Oxford Street property was held on trust by Australvic for Mr Calderone. It is admissible as an admission by Australvic that the property was held on trust for Mr Calderone. Under s 81(1) of the Evidence Act 2008 , the hearsay and opinion rules do not apply to evidence of an admission. The admission was proved by tendering the affidavit and it was not necessary for Mr Calderone to call Mr Fisher to give the evidence independently or to prove his affidavit.”

Westpac Banking Corporation v Toksoz & Anor [2010] NSWSC 1509 (23 December 2010)

FRAUD – “IDENTITY THEFT” – Bank defrauded of more than $1.1M via telephone banking and on-line banking – whether First Defendant was the fraudster.
TRACING – whether Second Defendant received any proceeds of the frauds with knowledge of the frauds – whether Second Defendant accountable as trustee.

Evidence Act 1995 (NSW) – s 140(2)(c)