Category Archives: Evidence

Damages, Evidence, Personal Injury

Purkess v Crittenden [1965] HCA 34 | 16 July 1965

ON 16 JULY 1965, the High Court of Australia delivered Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 (16 July 1965).

http://www.austlii.edu.au/au/cases/cth/HCA/1965/34.html

Where a plaintiff has made out a prima facie case that his or her incapacity was the result of the defendant’s negligence, the onus of adducing evidence that the incapacity was to do with a pre-existing condition, or that the incapacity would have in any event resulted from the pre-existing condition, rests with the defendant. However, the burden remains on the plaintiff on the whole of the evidence to satisfy the court or tribunal of the extent of the injury caused by the defendant’s negligence.

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Civil procedure, Evidence, Family Law

Briginshaw v Briginshaw [1938] HCA 34 | 30 June 1938

ON 30 JUNE 1938, the High Court of Australia delivered Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (30 June 1938).

http://www.austlii.edu.au/au/cases/cth/HCA/1938/34.html

Where serious or grave allegations are made in a civil case, the court must, when making findings of fact, apply the civil standard of proof but, depending on the nature of the issue, give serious consideration as to whether or not it has reached the necessary degree of reasonable satisfaction or persuasion that the alleged facts are more likely than not to exist.

Per Dixon J at 362:

“… [R]easonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. …”

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Evidence, Legislation

Evidence Act 1995 (NSW) | 19 June 1995

ON 19 JUNE 1995, the NSW Evidence Act 1995 was enacted.

http://www.austlii.edu.au/au/legis/nsw/consol_act/ea199580/

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Criminal Law, Criminal Procedure, Evidence, Practice and Procedure

Bunning v Cross [1978] HCA 22

ON 14 JUNE 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).

http://www.austlii.edu.au/au/cases/cth/HCA/1978/22.html

A court has the discretion to admit or exclude evidence that is improperly or illegally obtained. In exercising its discretion, the court is to weigh up the competing public requirements of (a) bringing to criminal wrongdoing to conviction and (b) protecting all individuals from unfair and unlawful treatment.  The onus is on the accused to prove misconduct and justify the exclusion.

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Criminal Law, Criminal Procedure, Evidence, Practice and Procedure, United States

Miranda v Arizona 384 US 436

On 13 June 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).

http://supreme.justia.com/cases/federal/us/384/436/

The Court held that in order to protect the constitutional privilege against self incrimination under the 5th amendment of the US Constitution, an accused in custody must be informed of his or her right to remain silent; that anything he or she says may be used against him or her in court; and that he or she has the right to consult a lawyer who may present during any interrorgation.

The court held that the prosecution may not use statements of the accused whilst in custody unless the prosecution can show that they informed the accused of their right to silence and the right to a lawyer and that the accused understood this and voluntarily waved such rights in making such a statement.

Miranda warnings are typically phrased as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

The rule in Miranda v Arizona is specific to the United States and does not apply in Australia. There is no 5th amendment privilege against self-incrimination, though the High Court of Australia has held that under the Australian common law, no inference may be drawn from an accused’s silence: Petty & Maiden v R [1991] HCA 34; (1991) 173 CLR 95 (5 September 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/34.html

See also: RPS v R [2000] HCA 3; 199 CLR 620; 168 ALR 729; 74 ALJR 449 (3 February 2000).

http://www.austlii.edu.au/au/cases/cth/HCA/2000/3.html

However, if an accused choses to answer some questions but not others, inferences may be drawn against the questions the accused did not answer.

In limited circumstances, some questions must be answered, such as in traffic matters. One must give their name and address if they are to receive bail.

The NSW Evidence Act 1995 when first enacted said that no adverse inference could be drawn from the exercise of the right to silence by the accused.  On 20 March 2013, the Act was amended so that the accused is cautioned with: “it may harm your defence if you fail to mention something now that you later rely on at trial”.

NSW law enforcement officers have traditionally given the following warning: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

Since the amendment of the Evidence Act, the NSW warning is: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”

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Criminal Law, Criminal Procedure, Evidence

Lee v R; Lee v R [2014] HCA 20

ON 21 MAY 2014, the High Court of Australia delivered Lee v The Queen; Lee v The Queen [2014] HCA 20 (21 May 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/20.html

The High Court allowed two appeals, ordering that convictions be quashed with respect to various drug and firearms offences.

Before the trial, the appellants had given evidence before the NSW Crime Commission and such material was subject of a direction that it not be published if publication would prejudice a fair trial. Contrary to s13(9) of the New South Wales Crime Commission Act 1985, the material was published to members of the NSW Police Force and officers of the NSW Director of Public Prosecutions before the trial.

The appellants contended that the unlawful publication amounted to a miscarriage of justice under s6(1) of the NSW Criminal Appeal Act 1912.

The High Court held that the purpose of s13(9) was to protect a fair trial of a person who may later be charged with offences investigated by the Crime Commission. The later possession and possible use of the material by the prosecution was unfair, shifting the balance of power to the prosecution and departing from the kind of fair trial that the system of justice provides (as the court referred to in X7 v Australian Crime Commission [2013] HCA) and that s13(9) aims to protect.

The court said that the prosecution ought to have alerted the trial judge that it had come into possession of this material so that the judge could make directions to ensure that the trial was not affected.

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Administrative Law, Appeals, Criminal Law, Evidence, LAW FIRM, Occupational Health & Safety

Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1

ON 3 FEBRUARY 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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Civil procedure, Evidence, LAW FIRM, Pleadings, Practice and Procedure

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27

ON 5 AUGUST 2009, the High Court of Australia delivered Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (5 August 2009).

http://www.austlii.edu.au/au/cases/cth/HCA/2009/27.html

In Aon Risk, the Australian National University on day three of a four week hearing was granted an adjournment to make significant amendments to their statement of claim against their insurance broker. The ACT Court of Appeal dismissed an appeal of the decision except in relation to costs. The High Court of Australia allowed an appeal, setting aside the Court of Appeal’s decision and sending the matter back to the ACT Supreme Court for directions towards final determination.

The High Court considered its earlier decision of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146; (1997) 141 ALR 353; (1997) 71 ALJR 294 (14 January 1997) in the light of how it had been applied by the courts across Australia.

JL Holdings contains the often quoted passage regarding case management:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

Queensland v JL Holdings had come to be an authority for the propositions that (1) doing justice between the parties is paramount to the court’s use of discretion when determining an application for leave to amend  (2)case management principles should not limit a court’s discretion when considering such applications and (3) an application for leave to amend should be approached on the basis that a party is entitled to raise an arguable claim subject to payment of costs by way of compensation.

The majority in Aon Risk Services Australia Limited v Australian National University (Gummow, Hayne, Crennan, Kiefel and Bell JJ) at [111-113] held that applications for leave to amend should not be approached on the basis that a party is entitled to raise an arguable claim subject to costs as compensation.

The majority also held that the statements made in Queensland v JL Holdings regarding the limiting of case management principles should not be applied in the future.

French CJ at [30] added that to ignore the concerns of case management would be to ignore the facts of undue delay, wasted costs, strain and uncertainty and erode public confidence in the legal system.

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Agency, Bankruptcy, Contract, Corporations Law, Equity, Evidence, Insolvency, LAW FIRM, Limitations, Remedies

The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9)

ON 28 OCTOBER 2008, Justice Owen of the Supreme Court of WA delivered The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 (28 October 2008).

http://www.austlii.edu.au/au/cases/wa/WASC/2008/239.html

One of Australia’s longest cases.

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Appeals, Evidence, LAW FIRM

Fox v Percy [2003] HCA 22 | 30 April 2003

On 30 April 2003, the High Court of Australia delivered Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (30 April 2003).

“Appeal – Rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.”

The court affirmed the principles, developed over many previous cases, to be applied by appellant courts when considering whether or not to overturn the findings of credit made by a trial judge.

An appellate court must be satisfied that the findings are “glaringly improbable” or “contrary to compelling inferences”; or that the judge has “failed to use” or “palpably misused” his or her advantage or acted on facts which were inconsistent with the evidence or were glaringly improbable..”

http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html

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