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Sio v The Queen [2016] HCA 32 (24 August 2016)

Sio was charged with murder and armed robbery with wounding. Sio had driven Filihia to a brothel to enable Filihia to carry out a robbery. During the robbery Filihia stabbed and killed Gaudry. Filihia pleaded guilty to murder and inculpated Sio during his recorded interview, saying that Sio had given him the knife and put him up to the robbery. The prosecution contended that there was a joint criminal enterprise to rob and that Sio foresaw the possibility that Filihia would commit murder. Filihia refused to give evidence, so the prosecution sought to tender his recorded interview under s 65 of the Evidence Act (NSW). The recorded interview was admitted. Sio was acquitted of murder, but convicted of armed robbery with wounding. The conviction was set aside for two reasons.

First, the trial judge’s directions on armed robbery with wounding were in error, a point which was not noticed at trial or in the Court of Appeal. The trial judge provided question trails for murder and armed robbery with wounding which were identical for the first five elements. The fifth element was that Sio participated in a joint criminal enterprise of armed robbery. The sixth element, which applied to the charge of murder only, required that Sio foresaw the possibility that the victim might be wounded by the use of a knife. There should have been an equivalent sixth element for the circumstance of aggravation of armed robbery with wounding. But for the second error, the High Court would have ordered a conviction for armed robbery simpliciter.

The second error arose from the trial judge and Court of Appeal’s compendious approach to assessing whether Filihia’s inculpatory statements were ‘likely to be reliable’ for the purpose of s 65 of the Evidence Act. The trial judge drew a distinction between credibility, which was a matter for the jury, and reliability. The Court of Appeal found that the interview as a whole was likely to be reliable, without paying close attention to the particular ‘representations’ made in the interview and their individual reliability, which was what the statute implicitly required. Noting the law’s long history of treating the inculpatory evidence of accomplices with circumspection, the High Court found that Filihia’s inculpatory representations, particularly that Sio had given him the knife and put him up to it, were inadmissible. The court noted that s 83 of the Evidence Act would have produced the same outcome if Filihia was tried jointly with Sio, but because he pleaded guilty he was not a party to the proceedings against Sio.

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Kelbush Pty Ltd v ANZ [2015] WASC 117 (PDF)
7 April 2015

This litigation arises out of the Forge liquidation. The plaintiff is a creditor who (it is inferred) does not expect to receive 100 cents in the dollar. It alleges that ANZ may be liable for misleading and deceptive conduct by failing to correct ASX announcements released by Forge, which suggested that Forge retained the support of its creditors (which included ANZ). So the claim, in substance, is that the Australian Consumer Law has the effect of extending the duty in Hedley-Byrne v Heller to the world at large.

Master Sanderson refused the plaintiff's application for pre-action discovery, but accepted the underlying premise of the claim [17]. It only failed because the alleged loss arose from the plaintiffs' performance of a rental agreement. The plaintiff had not shown that, if it was made aware of Forge's (allegedly) parlous financial situation, it would have had the right to terminate or otherwise mitigate its losses from the agreement [18].

This kind of litigation (even if ultimately unsuccessful) is a risk borne by any investor who is seen by the public at large as a substantial backer, or shadow director, of a failed company.

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R v JS [2007] NSWCCA 272 (NSW Caselaw, AustLII)
10 September 2007

This was a decision of 5 judges. Spigelman CJ wrote the leading judgment (3 agreeing); Mason P wrote a concurring judgment that expanded on s 80 of the Constitution.

This was a Crown appeal against a directed verdict of acquittal. Like Leeth (1992) 174 CLR 455, it concerned the difficulties created by the 'autochthonous expedient' of investing State courts with federal jurisdiction. At common law there was never a right of appeal from a verdict of acquittal. Various State criminal appeal statutes now confer such a right. This case establishes that they are picked up as federal law by the general words of s 68(2) of the Judiciary Act. The appellant submitted that clear statutory language was required to displace the finality of an acquittal at common law. The respondent relied on Kim (1993) 65 A Crim R 278 (a decision of the Tasmanian Full Court).

The court was required to consider the irreducible content of the right to a 'trial by jury' found in s 80 of the Constitution. A related inquiry is the scope of the essential features of the 'criminal trial process', cf. X7 v Australian Crime Commission [2013] HCA 29 [97] - [101]. 

The verdict of acquittal was one of the last breaths of the doctrine that some decisions are so final that they cannot be challenged, even by the grant of a statutory right of appeal. The notion of double jeopardy has long inhibited the law from recognising rights of review. At common law, superior courts exercised review jurisdiction in civil cases long before they entertained the possibility even of granting a new trial: Orfield, History of Criminal Appeal in England (1936) 1 Mo L Rev 326, 328.

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Ryan v Kazacos [2001] NSWSC 140 (AustLII)
heard 21 February 2001; delivered 13 March 2001

These were contentious probate proceedings (a dispute regarding a deceased person's will).

[7] The deceased was a one-half owner with his father of a business known as the "Penthouse Club" in Sydney. This was euphemistically called a "gentlemen's club". It was a seven day a week, 24 hours a day business which involved attending to the needs of the members. In order to service the members, shifts of large number of hostesses were employed and at least ten suites of rooms were made available by the club for private conferences between the members and the hostesses.

Kazacos committed suicide, leaving [46] "an estate which would appear ... to have a value of about $4.5 million". He left a suicide note, which purported to leave his 50% share in the business to Michelle Ryan. The question was whether the suicide note acted as a codicil to a will he had made some years earlier.

As it turned out, the business was under investigation by the National Crime Authority – unbeknown to Kazacos – and Kazacos' phone calls were legally tapped. A solicitor for Kazacos took notes from recordings of the calls. Young J found that the notes were inadmissible under the statute authorising the tapping.

In Australia, an informal codicil is not presumed invalid merely because it is a suicide note. [50]

[51] The defendant says that the evidence of Anabel, which should be accepted as it was uncontradicted and Anabel was unaffected by the cross examination, shows that the deceased was in a depressed state of mind when he wrote the note. He wrote the note only four minutes after finishing a very emotional conversation with Anabel's father, after he had just found Anabel in bed with another man, in circumstances where he was accusing Anabel of betraying him.

The judgment contains a salacious review of the evidence concerning Kazacos' private life. For the most part, Young J was unconvinced by the evidence going to Kazacos' incapacity:

[58] In their affidavits and in cross examination, the doctors were asked about the size of the estate, the fact that there was a large benefit given to the plaintiff which had the effect of reducing substantially the benefit that the deceased's son would take under the will, that there was no benefaction to Anabel, that it might be said that the "will" was to punish Anabel for what she had done by leaving money to her rival. I must confess that none of this really impressed me very much. There was also debate as to whether a person who says in his will that he is of sound mind thereby signifies that he is afraid that other people will think he is not. This, to my mind is speculation...
[55] Evidence was given by two psychiatrists, one for each side. As is almost always the case in this sort of litigation, neither psychiatrist had ever seen the deceased and all their views were formed from documents which had been briefed to them...
[59] ... it is probable from the evidence that the defendant also asked a Dr Strum, a psychiatrist, to give an opinion, yet no report from Dr Strum was ever forthcoming. The conclusion must be that nothing that Dr Strum said could have assisted the defendant's case. I should note at this time that the culture in probate proceedings has been that both parties are assisting the Judge to get at the truth and the Court does expect all medical evidence to be produced, whether favourable or unfavourable to a party. It is regrettable that just because these are hotly contested proceedings involving a lot of money the prevailing culture does not seem to have been observed in the instant case.

Ultimately, Young J found that the note validly amended Kazacos' will. The Canberra Times reported accordingly.

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JLW v The State of WA [2010] WASC 179
heard 29 June 2010; delivered 29 June 2010

This was an appeal against the sentence for an offence under s 76 Criminal Property Confiscation Act 2000 (WA). That section gives police the power to "require a person to give to the officer any information within the person’s knowledge or control that is relevant to determining whether or not property is confiscable" when conducting a search, even if that information tends to incriminate them (although incriminating information cannot be admitted in evidence). The maximum penalty is a $100,000 fine and imprisonment for 5 years. s 73 allows police to conduct such a search if they reasonably suspect that the person has confiscable property, and use "any necessary force". (s 4 summarises the definition of 'confiscable property'. It includes 'unexplained wealth' and all property owned, controlled or given away by a declared drug trafficker.)

The appellant's brother was charged with the unlawful possession and sale of cannabis, and police discovered that he had paid money into the appellant's bank account. The police advised her that they would interview her and inquire into the source of the money. She telephoned a lawyer and was incorrectly advised that she was required only to give the police her name and address. On the basis of this advice, she refused to answer questions. She was then charged under s 76 and the police froze her bank accounts. Six months later, the police discontinued confiscation proceedings after discovering that the monies were loan repayments from legitimate income and the appellant's bank accounts were unfrozen.

The appellant pleaded guilty and was fined $1,000 and ordered to pay costs of $114.20. The magistrate's reasons were as follows:

[15] Stand up, Ms [W], please. You have entered a plea of guilty. It was initially an endorsed plea of guilty at an early stage but I determined that the matter was far too serious to have it dealt with in your absence. It is a serious matter. There does need to be both specific and general [deterrence] deterrents and a message needs to be sent to the public that this sort of requirement to provide this kind of information to the police is very important because the police are investigating whether or not a sum of money is obtained as a result of – whether it's proceeds of crime or not.
That's important for them and then they make a particular application to the court. Now, I've heard what [counsel] said on your behalf in relation to certain legal advice that you obtained. Obviously, from the statement of material facts it sounds like the police were informing you that really, you were required to give them that information and an explanation which you refused to comply with and that's obviously why you're here today. Now, I do have regard to the fact that you don't have any previous convictions. You are a person of previous good character, but in relation to the matter, it's my view, there's no evidence before me that this is going to have a detrimental affect on your employment and I'm not persuaded that it is appropriate to grant a spent conviction order. It's my view on the contrary that it's in the public interest that a conviction of this type be known to your employer given the type of offence that is here. So that in relation to the matter, you will be fined $1000 and you are ordered to pay costs of $114.20. Yes, thank you.

The appellant sought a spent conviction order because spent convictions need not be disclosed to employers. On appeal, Heenan J found that the magistrate had erred in failing to consider the circumstances under which a spent conviction order should be made.

[25] certainly could not be said that this offence, in its generic sense, was trivial. The learned magistrate was undoubtedly correct to stress the importance of this legislation in the pursuit and deterrence of crime and in the need for the public to be informed of the obligation to provide information to the police when they conduct inquiries in search of the proceeds of crime. The particular offence, as committed by this offender, has a number of mitigating factors which have been identified and which, in her case, significantly diminish her level of culpability, but I see no basis for contending that the learned magistrate was in error in not treating the offence as trivial.
[26] Nevertheless, the third statutory criterion was present, namely the previous good character of the offender ... Accordingly, the statutory power to make a spent conviction order was present and full attention needed to be given to that possibility.

The appeal was allowed and a spent conviction order was made.

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R v Pollock [2010] WASC 164
heard 12 June 2010; delivered 7 June 2010

This was a criminal trial for a charge of defrauding the Commonwealth by way of tax avoidance. Normally, it is the jury's responsibility in a criminal trial to assess the quality of the evidence against the accused. The judge will address the question of law by identifying the findings of fact which the jury must make in order to find the accused guilty. It is then the jury's responsibility to assess the evidence available and determine whether or not the accused is guilty beyond reasonable doubt on that evidence.

Here the judge dismissed the jury after finding that the accused had no case to answer: even if the Crown evidence were taken at its strongest, no reasonable person could be satisfied beyond reasonable doubt of the accused's guilt. That is, even a jury which took the view of the evidence most favourable to the Crown could not reasonably find the accused guilty.

[26] However, the Crown's case taken at its highest in this respect was that the accused was a director and he had signed some false earning statements for the charged period. Apart from that evidence, the Crown's evidence was that the accused did not know his obligations as a director, did not know of the company's financial obligations, did not control Express, did not prepare or have anything of note to do with the Express payroll and only became a director because Mr Kevin Pollock told him to sign the requisite form. During the charged period, the accused was a young man without any formal qualifications.
[27] In my view, even if the fact that the accused was a director of Express is added to the mix of circumstantial evidence, the evidence was insufficient for a properly instructed jury to conclude that the accused knowingly omitted to make PAYE tax instalment deduction remittances to the ATO on behalf of Express and, even if he did so, that he did so dishonestly.
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Gray v The State of WA [2010] WASCA 114
heard 17 May 2010; delivered 24 June 2010

This was an application for leave to appeal against a conviction of unlawful wounding and aggravated robbery.

[3] The complainant gave evidence as follows. Three men secured a violent entry through the front door of his home at about 6.00 pm on 21 July 2008. The three men, who were armed with bats and lumps of wood, were people who he had seen before. He identified them ... Two other people entered the house after the three identified by the complainant. The other two were wearing disguises.
[4] The co-accused were yelling and brandishing weapons. The complainant backed into the hallway moving towards the backdoor or the backroom. He received two gashes to his head, the first from a hit over the head with a baseball bat (ts 46) and the second was caused by the appellant throwing an ornament (a Balinese statue) which hit the complainant on the head (ts 45, 47, 73). The incident took around four or five minutes in total (ts 49).
[5] The complainant had seen (but not spoken to) the appellant and Harvey at a gathering at Robertson's house some three weeks prior to the home invasion ... the complainant referred to the appellant's haircut and a tattoo on his forearm of the word 'ANARCHY'. There was photographic evidence at trial of the appellant's appearance at the time of the offences. He had a distinctive 'mullet' haircut. The tattoo on his forearm is also very distinctive; it occupies the majority of the inside of the appellant's forearm.

The jury were convinced by the victim's evidence. He claimed that he had met the appellant before. The appellant claimed that the trial judge failed to adequately direct the jury on the dangers of convicting someone based on such evidence. Leave to appeal was denied: the trial judge's directions were found to be adequate.

It's important to bear in mind, and indeed, you're probably well aware of it, but common experience suggests a potential for unreliability of recognition evidence based on a single sighting of a person, particularly if that person was not well known to the witness providing the recognition evidence, because mistaken identity is a reality. And evidence of recognition based on personal impression, however bona fide the person forming the personal impression might be, can be unreliable. And it may be that unless that impression is supported by other facts, it's reliability might be doubtful. Such evidence is frequently given with confidence by respectable and honest witnesses who are nevertheless mistaken. Many of us have had the experience of going up to someone, in the street or a social occasion, thinking they it is someone other than it turns out to be. So there's therefore a special need for caution before accepting identification or recognition evidence ...
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DPP v Italiano [No 2] [2010] WASC 150
heard 8 and 10 June 2010; delivered 10 June 2010

This was the first review of a continuing detention order imposed on a convicted sex offender. These orders can be made even after an offender's sentence has expired.

Blaxell J found that the offender remained a 'serious danger to the community.' However, he exercised a discretion open to him in rescinding the detention order. It was replaced with a continuing supervision order which, while it will result in the offender being released from prison, will require him to "permit police officers to enter and search his residence at any time."

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Ives v Lim [2010] WASC 122
heard 31 March 2010; delivered 1 June 2010

This case involved alleged defamation on LiveJournal. The plaintiff, against whom the defendant had a restraining order, initiated legal proceedings on 24 July 2009, then failed to appear at the hearing on 25 November 2009. His claims were summarily dismissed and he was ordered to file a statement of claim. He then failed to appear at the next hearing on 20 January 2010, but elected to make an appearance in person at the third hearing on 4 February 2010.

[11] On 17 March 2010 the plaintiff issued a subpoena to the defendant to produce documents identifying all previous friends of Live Journal Account '[ profile] youramazin' to the specific details' there enumerated.

He also sought "[a]n application for leave to have a judicial discovery order served on a third party in Russia [LiveJournal]". The alleged defamatory material included:

[26] ... a publication entitled 'wow, saturday night totally topped the night i had 3 bottles of wine' published on 14 April 2008 on the defendant's web page 'youramazin'. It is pleaded that the publication included the words:

wow, Saturday night totally topped the night I had 3 bottles of wine it started off with me harassing charlie who is my favourite blind tabby cat (he has socks!)
a lot of vodka, one bus and a toilet later, dj who flirts with me and plays apologise just for me gave my friend 3 tickets to exposed. bahahaha. a silly faggot tries to start a fight with us because he is insane. i went into a psychotic rage for 5 minutes because I am insane. then we left and my other friend digs through the bushes - voila! bottle of vodka! at a new club, i somehow met this guy. i think i was leaving the toilets and ran into him (wouldn't be surprised if I actually RAN into him). left with him, denied entry into another club. tried again, denied again, nearly got into a fight with the fucktard bouncer. go to another club. barmaid refuses to serve me, ahah. guy gives me his drinks later we leave and for some reason I thought to GET to the city, you had to walk AWAY from the city. i remember crossing the freeway and jumping a fence. then we gave up and got a taxi. he was cutely asking if he could come to mine and that he'd be really quiet and hide under the bed. i was like 'haha, that's cute, but no'

i got home, made fettucine, watched house and went to sleep.


The plaintiff did not put forward any argument suggesting that he is the person referred to in the LiveJournal post. Other supposedly defamatory material included "a publication on the same web page on 20 May 2008 entitled 'hahahahaha'" and "a further publication on the same website on 17 June 2008 entitled 'I'm not even going to try and write this in some kind of coherent manner'". The plaintiff was unhappy because "[t]he publication mocks the plaintiff and suggest [sic] he is foolish and an ignorant insincere uncouth person."

[38] Paragraph 14 refers to a further publication on the defendant's 'youramazin' website. The words published are not set out. The very words complained of are the material facts in a defamation action and must be set out in the statement of claim. The paragraph says that the publication contained a large photo of a pet rabbit purchased by the plaintiff by the defendant (sic) and is said to highlight the deception the plaintiff was allowed to live under by the defendant and the complete disregard for the plaintiff's feelings. The pleading fails to set out the words complained of, that the words refer to the plaintiff or the defamatory meaning which is said to arise from them.

The plaintiff's statement of claim was struck out because it was "so confused and cluttered with irrelevancies that it is impossible clearly to make out the case ... The plaintiff may have an actionable case but he has failed to plead it in a way that makes clear the case he wishes to advance."

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Maslin v Searle [2010] WASC 146
heard 4 February 2010; delivered 18 June 2010

This was an appeal against a stealing conviction in the Magistrate's Court. The appellant claimed a number of errors of law.

A man returned to his house on 20 May 2008 to find it had been burgled. Shortly afterwards the police, who recognised the appellant, saw him near the burgled house and called him over. He ran away. Eventually, the police caught him and found him in possession of the stolen property.

[13] Constable Searle then had a conversation with Constable Hogben, and, after a search in the general area first by Constable Hogben and then by the two police officers, they located the appellant, at a car park at a shopping centre close by the medical premises. The appellant was seen crouched down behind a motor vehicle in the car park. Constable Hogben approached the appellant, who ran off. Constable Hogben caught the appellant, of whom he at no point lost sight, in the drive way of units nearby. Shortly thereafter the appellant was arrested and cautioned.

The appellant was convicted on circumstantial evidence. He claimed that there was reasonable doubt as to whether he was guilty of the offence he was charged with (s 378 stealing): it had not been established that he stole the property. Instead, he may have received it knowing it had been stolen (s 414).

Simmonds J applied the following test:

[22] [T]he test to apply to the grounds was whether or not it was reasonably open to the learned magistrate to conclude that the charges for the burglary offence and for the stealing offence had been proved beyond reasonable doubt, on the basis that the only rational or reasonable inference open to him was that the offender was guilty of those offences. [emphasis added]
[W]here a party is stopped coming out of a room with a gold watch which has been taken from the room; but if he has left the room so long as to render it probable that he may have received it from some one else, then it may be evidence either of stealing or of feloniously receiving.
Gilson v The Queen [1991] HCA 24 per McHugh J

Considering all the circumstances of the case, however (the appellant's suspicious behaviour and unexplained possession of stolen property), the appeal was dismissed.

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Gray v Lavan Legal [2010] WASC 144
heard 17 May 2010; delivered 17 May 2010

This case is a procedural decision as to an extension of time. Bruce Gray, a former employee at UWA, helped to develop a treatment for liver cancer which he subsequently marketed (and presumably profited from). UWA sued him in the Federal Court in 2007 for violation of its intellectual property rights and lost.

UWA's argument that academics had a duty to invent, not just to research, suggested they had to keep promising results secret lest they prejudice the commercial interests of their university employers, the court said. "As a general rule, secrecy is anathema in academic life," Professor Monotti said. [source]

(UWA sought leave to appeal to the High Court, which was rejected. By that time, French J (who decided against UWA at first instance) had become the Chief Justice of the High Court.

This case involves Dr Gray's action against Lavan Legal, who handled his defence to UWA's claim, as a result of the costs he incurred: over $4.8 million.

[2] The trial lasted for some 50 sitting days between March and July of 2007. On most of those days, the court sat extended hours. The transcript of the trial ran into 4,568 pages. There were more than 1,000 documentary exhibits. During the course of the action, 19 interlocutory judgments were published. French J (who was then a judge of the Federal Court) published his judgment on 17 April 2008. The judgment has 1,619 paragraphs.
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Director of Public Prosecutions (WA) v Peters [2010] WASC 139
heard 22 April 2010; delivered 22 April 2010

Peters was convicted on indictment for stealing and recklessly driving a car. This is potentially more serious than a summary offence for the same act, with a maximum penalty of 8 years' imprisonment rather than 3 years'. Additionally, an indictable offence involves a long and expensive trial before a District Court judge and jury. A summary offence can be dealt with before a magistrate.

Many of the State's magistrates had treated the stealing and reckless driving charge as if it were strictly indictable, when in fact it was to be tried as a summary offence unless the case was particularly serious. Defendants may therefore have endured unnecessary trials by jury and unusually high sentences, so their convictions can be quashed:

[2] ...the time has come for this unseemly procedural ping-pong to stop and [the DPP] has brought the present application as a test case to establish the nature and character of a charge for an offence against s 378(2) of the Code ... in a disquieting number of instances in the past, magistrates have taken the approach that persons charged with that offence must be committed for trial or sentence in the District Court and have made corresponding orders for committal without considering whether or not, under s 5 of the Code, the charge should be dealt with summarily.
[11] Proceeding with a trial on indictment in respect of an offence which is either not indictable or which may only be tried on indictment if certain prior conditions are met, in the absence of satisfaction of those conditions, it is open to challenge because, if the trial were conducted without jurisdiction then, any ensuing conviction could be quashed – Bounds v The Queen [2005] WASCA 1.
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Manyam v The State of WA [2010] WASCA 107
heard 18 March 2010; delivered 9 June 2010

This is an appeal against a criminal conviction for the aggravated armed robbery of the Sizzler in Innaloo. The prosecution's evidence gives you some insight into the Government's investigation and prosecution of crime.

[Police:] To the best of your knowledge there's a guy standing there with a balaclava on his head with black gloves and a backpack going through a till. Is that something that could be you?
[Appellant:] It could be me, yeah. There's nothing that proves to me that it's definitely not me otherwise I'd be jumping up and down pointing at it.
[Police:] Right. So that's something that could quite easily be you, wearing a balaclava, taking cash out of a till?
[Appellant:] It could be me. I can't see - I can't see any features there that would without a doubt prove that it wasn't me, put it that way.

The case against the appellant was circumstantial and the way he responded to police questioning was a factor in his conviction.