Category Archives: Practice and Procedure

Miranda v Arizona 384 US 436 | 13 June 1966

ON THIS DAY in 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).

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).

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

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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Bunning v Cross [1978] HCA 22 | 14 June 1978

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

“Evidence – Illegally obtained – Statutory offence – Driving under influence of alcohol – Compulsory breath and blood tests – Grounds for requiring submission to test – Grounds not satisfied – Whether sample obtained illegally – Whether evidence admissible – Error in obtaining evidence not wilful – Discretion to exclude – Public policy – Road Traffic Act, 1974 (W.A.), ss. 63-68, 70, 71.”

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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Grant Samuel Corporate Finance Pty Limited v Fletcher: JPMorgan Chase Bank, National Association v Fletcher [2015] HCA 8

ON 11 MARCH 2015, the High Court of Australia delivered Grant Samuel Corporate Finance Pty Limited v Fletcher: JPMorgan Chase Bank, National Association v Fletcher [2015] HCA 8 (11 March 2015).

The High Court held that rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 (NSW) could not be utilised to vary the time for the bringing of proceedings for orders with respect to voidable transactions under s588FF(3) of the Corporations Act 2001 (Cth).


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Queensland v J L Holdings Pty Ltd [1997] HCA 1 | 14 JANUARY 1997

ON 14 JANUARY 1997, the High Court of Australia delivered 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).

Per Dawson, Gaudron and McHugh JJ (at 154):

“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 the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

The decision has since been used as 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.  Since the High Court’s 2007 decision in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, JL Holdings no longer is authority for propositions (2) and (3).


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Browne v Dunn (1893) 6 R 67 (HL) | 28 November 1893

ON 28 NOVEMBER 1893, the House of Lords delivered Browne v Dunn (1893) 6 R 67 (HL).

A party who cross-examines a witness must, out of fairness, “put it” to the witness any contradiction they suggest arises from their evidence in order to give them an opportunity to explain the contradiction.

Per Lord Herschell at 70-71:

“…it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and, then, when it is impossible for him to explain…to argue that he is a witness unworthy of credit.”


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Craig v South Australia [1995] HCA 58 | 24 October 1995

ON 24 OCTOBER 1995, the High Court of Australia delivered Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995) 

At 179:

“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

At 180:

“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.

At 177:

A court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”.

At 177:

Jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers”.

At 177-8

Examples of a court acting beyond its jurisdiction by entertaining a matter outside the limits of the court’s functions include:

  • the absence of a jurisdictional fact
  • disregard of a matter that a relevant statute requires to be taken into account or ignored as a condition of jurisdiction.
  • misconstruction of the relevant statute thereby misconceiving the nature of the court’s function or extent of its powers with respect to the particular issue, though the line between jurisdictional error and mere error of exercise of jurisdiction may be difficult to identify.


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Jago v District Court of NSW | 12 October 1989

ON 12 OCTOBER 1989, the High Court of Australia delivered Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (12 October 1989).

Superior Courts “possess an inherent power to prevent their processes being used in a manner which gives rise to injustice”.

The inherent jurisdiction of the Superior Courts empowers them to order a permanent stay of proceedings to prevent an abuse of process. The power is to be exercised with fairness as the “touchstone”: per Mason at 31.

A permanent stay of proceedings will only be ordered in an “extreme case”: Per Mason CJ at 34.

Per Mason CJ at 33-34:

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial…At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’…”

It is fundamental to the legal system that an accused be given a fair trial according to the law. The accused has “a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.”: per Deane at 56-57.

The five main considerations in determining whether or not proceedings should be stayed on the grounds of unfair delay are, per Deane J at 60:

  •  “the length of the delay”
  • “reasons given by the prosecution to explain or justify the delay”
  • “the accused’s responsibility for and past attitude to the delay”
  • “proven or likely prejudice to the accused”
  • “the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.”

Legal Helpdesk

Peter O’Grady, Lawyer
BA, LLB, Grad Cert Leg Prac, Acc Spec
Principal Solicitor, Legal Helpdesk

Blackmore Design Group Limited v Manly Council [2014] NSWLEC 151

ON 18 SEPTEMBER 2014, the NSW Land and Environment Court delivered Blackmore Design Group Limited v Manly Council [2014] NSWLEC 151.


Sydney, Australia

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Revised Legal Aid General Criminal Law Panel Practice Standards

Revised Legal Aid General Criminal Law Panel Practice Standards take effect from 15 September 2014.


Sydney, Australia

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Ashby v Slipper [2014] FCA 973

Ashby v Slipper [2014] FCA 973 (11 September 2014).


Sydney, Australia

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