Monthly Archives: August 2012

Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2012] FCA 944 (31 August 2012)

PATENTS – two appeals from decisions of delegate of Commissioner of Patents – opposition to grant of patent for bulk material transport container on multiple grounds – consideration of nature of appeals as hearings de novo

PATENTS – combination patent – novelty – whether invention was disclosed in prior art – application of ‘reverse infringement’ test – whether invention involved an inventive step – whether the combination of integers would have been an obvious solution to a person skilled in the art in light of common general knowledge – consideration of how a person skilled in the art would have interpreted and understood the prior art – time at which prior art is to be construed

PATENTS – disputed priority date – whether there was a ‘real and reasonably clear disclosure’ in the provisional specification – whether secret use before the priority date – whether use by inventor for reasonable trial and experiment only

EVIDENCE – consideration of admissibility and weight to be given to expert evidence where the expert witnesses are not independent

Azizi v The Queen [2012] VSCA 205 (30 August 2012)

CRIMINAL LAW – Appeal – Conviction – Murder – Applicant found guilty of murdering his wife – Evidence adduced at trial of representations made by deceased to effect that applicant had physically and emotionally abused her – Crown sought to use evidence as tendency evidence – Whether evidence fell within exceptions to hearsay rule provided for in ss 65(2)(b) and (c) of Evidence Act 2008 – Whether evidence could be used as tendency evidence – Whether Crown’s failure to call as witnesses interpreters who interpreted conversations in which representations were said to have been made by deceased gave rise to miscarriage of justice – Whether directions given by trial judge tended to reverse onus of proof – Appeal allowed – Evidence Act 2008 ss 65, 66A, 67(1), 97(1), 101(2), 135 and 137 – Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204 – R v Mankotia [1998] NSWSC 295 – Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490 – R v Ambrosoli [2002] NSWCCA 386; (2002) 55 NSWLR 603 – Gaio v The Queen [1960] HCA 70; (1960) 104 CLR 419 – Director of Public Prosecutions (Vic) v BB [2010] 29 VR 110 – R v LRG (2006) 16 VR 89 – Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 – Liberato v The Queen [1985] HCA 66; (1985) 159 CLR 507.

N O M v DPP & Ors [2012] VSCA 198 (24 August 2012)

Revocation of non-custodial supervision orders under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Quasi-inquisitorial nature of proceedings – Role of Attorney-General – Role of Secretary of the Department of Health – Appeal from a discretionary decision – Application of principles in House v The King [1936] HCA 40; (1939) 55 CLR 499.

Interaction between s 39 and s 40(1) – Weight to be given to factors in s 40(1)(c) and (d) – Meaning of ‘endanger’ – Assessment of probability of risk of harm to community or appellant – Evaluation of the likelihood of risk materialising rather than gravity of harm if risk eventuated – Degree of restrictions on appellant’s autonomy – Whether restrictions the minimum necessary for avoidance of risk – When liberty of individual to be optimised – Appellant at low risk of re-offending.

Burden of proof – Rules of evidence inapplicable – Section 38 – No legal or evidential onus on any party – Common sense approach to evidence – Standard of proof – Whether principle of Briginshaw (1938) CLR 336 applied to determination of future risk – Section 140 of the Evidence Act 2008 (Vic) – Whether applicable to such proceedings – Statutory standard of proof – Actual persuasion on the part of fact-finder – Section 140(2) Evidence Act and principle in Briginshaw.

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 33, 35, 38, 39, 40 – Uniform Evidence Act ss 8, 140 – RDM v DPP & Ors [1999] VSCA 86; [1999] 2 VR 270; Dr Butler v Fourth Medical Services Review Tribunal (1997) 47 ALD 647; McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 applied. In Re SKD [2009] VSC 363 discussed.

In the matter of LN [1999] VSC 144, In the matter of TDD [2001] VSC 389 overruled in part.

Melrose Cranes and Rigging Pty Ltd v. Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904 (17 August 2012)

PRIVILEGE – fire causing damage to crane – crane owner sues company responsible for sales and service – seller serves subpoenas to produce documents on three non-party respondent incident investigators – owners insurer claims litigation privilege or in the alternative advice privilege – HELD – documents protected from disclosure by litigation privilege – WAIVER – seller claims owners insurer by its conduct waived privilege – HELD – privilege not waived

Castagna v R [2012] NSWCCA 181 (23 August 2012)

CRIMINAL LAW – appeal against conviction – supply of more than a large commercial quantity – deemed supply – whether trial judge erred in refusing to sever count 2 – whether trial judge erred in refusing to direct a verdict – whether trial judge erred in directions to the jury – whether unreasonable verdict

R v Gale; R v Duckworth [2012] NSWCCA 174 (17 August 2012)

CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (8 August 2012)

ADMINISTRATIVE LAW – judicial review – failure to take into account relevant considerations – whether failure to refer to particular evidence can constitute failure to take into account relevant consideration – whether applicant entitled to rely on the reasons of the decision maker – whether necessary for applicant to rely on submissions before decision maker – need to identify source of legal obligation to consider mandatory factors – whether decision maker considered evidence – whether evidence is a relevant consideration for the purposes of judicial review

DAMAGES – motor vehicle accident – future economic loss – use of buffer – whether decision to award damages by way of buffer is an evaluative judgment – whether buffer manifestly unreasonable given likely future loss

Kable v State of New South Wales [2012] NSWCA 243 (8 August 2012)

ADMINISTRATIVE LAW – judicial power – executing invalid order of superior court – whether order of superior court incompatible with exercise of judicial power is valid until set aside – whether non-judicial order derives whatever authority it has solely from the relevant legislation – effects of orders in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51

CONSTITUTIONAL LAW – judicial power – Supreme Court order under statutory power incompatible with judicial power invalid – order made in proceedings involving exercise of federal judicial power – exercise of federal judicial power simultaneous with function incompatible with judicial power – whether invalid State law applied by federal law – Judiciary Act 1903 (Cth), ss 39(2), 79 and 80

TORT – defences – protection from liability in tort for officer enforcing non-judicial order of judge of superior court in good faith – whether protection exists at common law – whether any protection extends to orders incompatible with exercise of judicial power

TORT – false imprisonment – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to purported State legislation – legislation incompatible with judicial power and invalid – whether deprivation of liberty carried out by a person for whose conduct the State was liable – whether deprivation of liberty justified by law

TORT – malicious prosecution and collateral abuse of process – plaintiff detained pursuant to order of Supreme Court on application of Director of Public Prosecutions pursuant to invalid legislation – whether malice established

TORT – vicarious liability – vicarious liability of the State for conduct of persons in service of the Crown – whether State vicariously liable for conduct which was tortious absent statutory protection – Law Reform (Vicarious Liability) Act 1983 (NSW), ss 8 and 10

F A D v The Queen [2012] VSCA 195 (16 August 2012)

CRIMINAL LAW – Conviction – Series of sexual offences against a child – Whether conviction unsafe and unsatisfactory – Whether delay and asserted inconsistencies in and improbability of complainant’s evidence taken together render conviction unsafe and unsatisfactory – Appeal dismissed – No point of principle.

Delay between the alleged offending and the trial

21 The matters in issue were alleged to have occurred between 17 and 20 years prior to the trial. This factor provides the context in which the other matters raised by the appellant must be assessed.

22 Nevertheless, this is not a case where it can be said that the appellant has suffered specific forensic prejudice as the result of a matter such as the death of a witness. Moreover, the trial judge gave an extended direction to the jury as to the question of delay, including specific directions that the likelihood of distorted memory was increased by delay and that delay may have affected the appellant’s ability to rebut the prosecution case.[8] His Honour’s directions complied with s 61(1A), (1B) and (1C) of the Crimes Act 1958 and s 165B of the Evidence Act 2008 .

Baker v The Queen [2012] HCA 27 (15 August 2012)

Criminal law – Evidence – Common law – Hearsay – Admissions – Appellant and co-accused jointly tried for murder – Appellant convicted; co-accused acquitted – Co-accused made certain admissions in police interview and to witnesses (“out-of-court confessional statements”) – Consideration of Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 – Whether out-of-court confessional statements were admissible in exculpation of appellant as exception to hearsay rule.

Words and phrases – “admissions”, “against penal interest”, “hearsay rule”, “out-of-court confessional statements”.

Minister for Home Affairs of the Commonwealth v Zentai [2012] HCA 28 (15 August 2012)

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Jury misdirection – Respondent convicted of making document “connected with … assistance in a terrorist act”, knowing of that connection, contrary to s 101.5(1) of Criminal Code (Cth) (“Code”) – Trial judge directed jury that words “connected with … assistance in a terrorist act” had no special or technical meaning – Whether trial judge misdirected jury.

Criminal law – Terrorism – Collecting or making documents likely to facilitate terrorist acts – Exception to liability – Evidential burden – Section 101.5(5) of Code created exception to liability under s 101.5(1) if making of document “not intended to facilitate … assistance in a terrorist act” – Respondent bore evidential burden under s 101.5(5), as defined in s 13.3(6) – Whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in a terrorist act.

Words and phrases – “connected with”, “evidential burden”.

Heydon J dissenting
94. These arguments must be rejected. It does not follow from the fact that a decision-maker has not provided reasons that the decision-maker’s decision is unreasoned. Nor does it follow that it is unexaminable. The publication of reasons certainly helps those who wish to challenge administrative decisions. But it is not essential to a challenge. A decision-maker can be compelled to produce documents revealing the reasons for a given decision, whether by a subpoena duces tecum or a notice to produce. That decision-maker can be compelled by interrogatories to reveal those reasons in writing, and by a subpoena ad testificandum to reveal those reasons in the witness box. It is true that judicial review proceedings cannot be commenced on an entirely speculative basis. But non-speculative inferences can be drawn from the nature of the decision and from the dealings between the decision-maker and the affected person before the decision was made. It is also true that it would be difficult for a person challenging the decision to frame non-leading questions capable of eliciting answers that would reveal the decision-maker’s reasons. But the person challenging the decision can question the decision-maker as though on cross-examination where the decision-maker is not making a genuine attempt to give evidence on a matter of which that decision-maker may reasonably be supposed to have knowledge: Evidence Act 1995 (Cth), s 38(1)(b). Reluctance on the decision-maker’s part to give reasons would support an inference that there were no reasons, or no convincing reasons. It would be likely to stimulate close curial scrutiny. That is particularly so of adherence to a code of omerta in the witness box[118].

L M D v The Queen [2012] VSCA 164 (20 July 2012)

CRIMINAL LAW – Conviction – Indecent assault on a child under 16 and indecent act with a child under 16 – Whether trial judge erred in allowing evidence of complaints to go to the jury – Evidence Act 2008 , s 66(2A) – Whether inconsistent verdicts led to a substantial miscarriage of justice – Whether jury speculated about the timing of one of the offences leading to a substantial miscarriage of justice − Whether jury verdict unreasonable or cannot be supported having regard to the evidence – Leave granted but appeal dismissed.

Matthews v SPI Electricity Pty Ltd & Ors; SPI Electricity Pty Ltd v Utility Services Corporation Limited (Ruling No 9) [2012] VSC 340 (13 August 2012)

EVIDENCE – Opinion based on specialised knowledge – Admissibility of evidence – Requirements of Order 44 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Evidence Act 2008 (Vic) ss 76, 79 and 55.

Rich v The Queen [2012] VSCA 183 (9 August 2012)

APPEALS – Application for directions in respect of application for leave to appeal against conviction and sentence – Whether order should be made for production of unlawful affidavits relating to the obtaining of evidence – No arguable basis for avoiding s 165 Evidence Miscellaneous Provisions) Act 1958 – Whether audio compact disc of transcript should be provided – Whether transcript of charge, plea hearing and sentence should be provided in Transcript Analyser format – Whether orders should be made against general manager of prison – Applications refused – Criminal Procedure Act 2009 s 317.

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 (3 August 2012)

EVIDENCE – prosecution relied on tendency evidence without giving notice – whether evidence also relevant to circumstantial case in relation to another offence – whether necessary to distinguish circumstantial evidence from tendency evidence – whether direction could have assisted jury – whether leave should be granted to rely on ground not objected to at trial – Evidence Act 1995 (NSW), s 97; Criminal Appeal Rules (NSW), r 4

Collins v The Queen [2012] VSCA 163 (30 July 2012)

CRIMINAL LAW – Conviction – Two counts of murder – Admissibility of conversations covertly recorded in prison – Discretion to exclude evidence on basis of unfairness and/or public policy grounds – R v Swaffield [1998] HCA 1; (1998) 192 CLR 159; Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396; Em v The Queen [2007] HCA 46; (2007) 232 CLR 67 referred to – Judge’s factual findings open – Evidence properly admitted – Appeal dismissed.

CRIMINAL LAW – Sentence – Two counts of murder – Life imprisonment with non-parole period of 32 years – Not manifestly excessive – Judge had proper regard to appellant’s age and principles relating to ‘crushing sentences’ – Offences correctly described as ‘worst category’ – Relevance of restrictive prison conditions – Appeal dismissed.

Mischel v Mischel Holdings Pty Ltd (in liq) [2012] VSC 292 (27 July 2012)

CO-OWNERSHIP – Joint tenancy at law – whether tenancy in common in equity – whether consideration given for acquisition of share – severance of joint tenancy by agreement and by conduct – effect of death of joint tenant after exchange of contracts but before completion of sale of the subject land – Delehunt v Carmody [1986] HCA 67; (1986) 161 CLR 464 – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Conlan v Registrar of Titles [2001] WASC 188; (2001) 24 WAR 229 – Lyons v Lyons [1967] VR 160 – Public Trustee v Pheiffle [1991] 1 VR 19 (Pfeiffle v Pheiffle (1989) 13 Fam LR 692 (VSCFC)) – Burgess v Rawnsley [1979] Ch 429 – Transfer of Land Act 1958 (Vic) s 42 – Evidence Act 2008 (Vic) sub-s 67(1)

EQUITY – Maxims – Equity will not assist a volunteer – Corin v Patton [1990] HCA 12; (1989) 169 CLR 540 – Blackett v Darcy [2005] NSWSC 65; (2005) 62 NSWLR 392

McKenna bhnf Upton v Australian Capital Territory and Others [2012] ACTSC 115 (27 July 2012)

PROCEDURE – discovery and interrogatories – whether witness statements form part of an investigator’s report – witness statements were obtained at the same time and prepared by the same person as the investigator’s report – witness statements are the basis for the investigator’s report – found that the witness statements are part of the investigator’s report

Evidence Act 2011 (ACT), s 118

DS v Regina [2012] NSWCCA 159 (26 July 2012)

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether trial was held according to law – Whether trial a nullity – Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) – Appellant not arraigned again after empanelment of jury – No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court’s jurisdiction under s 130(2).

CRIMINAL LAW – Appeal against conviction – Sexual assault offences -Complainant’s response during cross-examination “Why would I lie about that?”- Motive to lie an issue for the jury’s determination – Crown Prosecutor’s address to the jury drew attention to complainant’s response – Whether the Crown Prosecutor’s address resulted in a miscarriage of justice – Crown Prosecutor permitted to refer to complainant’s evidence – Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying.

CRIMINAL LAW – Appeal against conviction – Sexual assault offences -Complainant’s response during cross-examination “Why would I lie about that?”- Whether trial judge’s direction that there may be a number of reasons why a person has a motive to lie was inadequate – Trial judge directed jury to the complainant’s response and reminded jury that Crown bore onus of proof beyond reasonable doubt – Trial judge’s direction concluded that it was a matter for the jury to assess complainant’s evidence – Trial judge’s direction was adequate.

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions pursuant to the Evidence Act 1995 , s 165 – Appellant’s defence counsel specifically agreed to the terms of the direction that the trial judge proposed to give and in fact gave – Trial judge was not required to give a direction that contained the specific warning and information specified in s 165(2).

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether an aggregation of the defects alleged in the grounds of appeal constituted a miscarriage of justice – Court not satisfied that there were defects in the conduct of the case – Appeal dismissed.

CRIMINAL LAW – Application for leave to appeal on sentence – Trial judge misstated the standard non-parole period for Crimes Act, s 61M(2) offence at the time the offence was committed – Trial judge assessed the offending conduct below the mid-range of objective seriousness – Error in statement of standard non-parole period led to error in the non-parole period imposed for the offence – Appeal allowed – Appellant re-sentenced.

CRIMINAL LAW – Application for leave to appeal on sentence – Trial judge erred in finding that the commission of the offences in counts 1, 2 and 3 in the home was an aggravating feature – Despite error no other sentence warranted in law in respect of counts 1 and 2.

CRIMINAL LAW – Application for leave to appeal on sentence – Length of total sentence imposed – Whether trial judge erred in not finding special circumstances – Trial judge had regard to the question of accumulation of sentences – Trial judge was not in error.

Dean v Phung [2012] NSWCA 223 (25 July 2012)

DAMAGES – torts – exemplary damages – medical practitioner provided treatment that was objectively unnecessary and without therapeutic effect – relevance of planning and duration of course of conduct

MEDICAL PRACTITIONERS – liability in tort – defence of consent – medical practitioner providing treatment that was objectively unnecessary and without therapeutic effect – whether defence of consent available – burden of proof of demonstrating consent of patient – whether medical practitioner was reckless as to whether treatment was either appropriate or necessary – whether exemplary damages should be awarded

STATUTORY INTERPRETATION – Civil Liability Act 2002 (NSW), s 3B(1)(a) -intentional act that is done by a person with intent to cause injury – purpose of leaving those who commit intentional torts to the operation of the general law – whether provision engaged by treatment known not to be reasonably necessary

TORTS – trespass to the person – consent to medical treatment – requirement that basic information be given to patient – distinction between nature of procedure and peripheral characteristics – whether misrepresentation of the nature of the procedure vitiates consent – relevance of motive of practitioner in misrepresenting the proposed treatment – burden of proof of establishing that procedure undertaken with consent – whether honest and reasonable belief that patient consented a defence

Evidence Act 1995 (NSW), s 140

Attorney General (NSW) v Lipton [2012] NSWCCA 156 (20 July 2012)

APPEAL – criminal – appeal against interlocutory judgment or order – ruling with respect to admissibility of evidence not a judgment or order – whether ruling on objection to production of documents in answer to subpoena is amenable to appeal – Criminal Appeal Act 1912 (NSW), s 5F; Evidence Act 1995 (NSW), s 131A

EVIDENCE – public interest immunity – whether party called to produce material not the party asserting public interest immunity – discussion of State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60; Derbas v R [2012] NSWCCA 14 – Evidence Act 1995 (NSW), ss 130 and 131A

EVIDENCE – public interest immunity – offender sought material relating to conduct of suspected informer for use at sentencing hearing – whether public interest immunity capable of being overcome for the purposes of sentencing – whether appellate court is in a position to perform requisite balancing exercise – whether offender demonstrated a real and not hypothetical issue with respect to sentence – Evidence Act 1995 (NSW), s 130

Evidence Act 1995 (NSW), ss 130, 131A