Cases and authorities

CONTRACTS — Formation — Agreement — Intention to make concluded bargain— Where the whole of the evidence indicates that negotiations are not complete CONTRACTS — Construction — Interpretation — Natural and ordinary meaning

SUCCESSION — contested probate — testamentary capacity — whether deceased’s age and illness, and exclusion of his son from his will, raised doubt as to his testamentary capacity — whether deceased had the ability to understand the nature and value of his estate — whether deceased suffering from insane delusions that affected the provisions of the will — whether deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect — whether alleged false misrepresentation vitiates will

INSURANCE – house fire – claim for indemnity – whether insured responsible for fire – circumstantial case – good faith in taking of defence alleging lack of reasonable dispatch in rectifying property

VEXATIOUS PROCEEDINGS – Vexatious Proceedings Act 2008 (NSW) s 8(7) – where defendant and his corporate alter egos have repeatedly, frequently, and unsuccessfully brought final and interlocutory proceedings against the plaintiff without reasonable cause in connection with the same underlying grievance – where substantial costs orders have been made against the defendant and his companies in favour of the plaintiff which have not been met and which have no prospect of being met – where the defendant has expressly stated that he will do all he can to destroy the plaintiff’s solicitor, that he has nothing to lose in causing the plaintiff as much pain as he can, and that he is not going away – HELD – appropriate to make an order that the defendant be prohibited from instituting proceedings in NSW against the plaintiff.

PRACTICE AND PROCEDURE – dismissal of proceedings brought by a company – where Court previously refused leave for the company’s director to bring the proceedings and dismissed the proceedings but ordered stay of the dismissal pending a solicitor coming onto the record – where solicitor came onto the record but promptly ceased to act – HELD – stay of dismissal dissolved

CRIMINAL PROCEDURE – fitness inquiry – question of unfitness raised by self-represented accused at commencement of trial – District Court refused to order an inquiry – urgent application for leave to appeal under Criminal Appeal Act 1912 (NSW), s 5F – where finding that psychiatrist’s opinion founded on accused’s “pretended” presentation and history – where psychiatrist’s report given little or no weight – whether trial judge erred in finding that question of unfitness not raised in good faith, engaging prohibition in Mental Health (Forensic Provisions) Act, s 10(2) – whether on evidence there was a real or substantial concern as to unfitness – appeal dismissed

CRIME – appeal against sentence – co-offenders – disparity between sentences – disparity justified once regard had to different objective and subjective circumstances – no legitimate sense of grievance – appeal dismissed

CIVIL PROCEDURE – Hearings – Duty List – Frequent unmeritorious and informal applications – Whether motions and affidavits to be submitted to Duty Judge for leave to file

ADMINISTRATIVE LAW — statutory requirement for procedural fairness — Motor Dealers and Repairers Act 2013 (NSW) s 41 — whether s 41 binds the Tribunal when reviewing determinations made under the Act ADMINISTRATIVE LAW — procedural fairness — Notice — Particulars of case against applicant — disciplinary action under Motor Dealers and Repairers Act 2013 (NSW) — where disciplinary action must be commenced by show cause notice — where new matters not particularised in show cause notice introduced at hearing — whether introduction of new matters was a denial of procedural fairness

COSTS – pre-trial discovery – substantive issue resolved – Civil Procedure Act 2005 (NSW) – displacing general costs principle – demonstration of manifest unreasonableness by the parties

SUCCESSION — Construction — Gifts — Absolute gift

Criminal law – Murder – Causation – Where appellant's assault caused serious injury to victim – Where victim suffered severe deterioration in quality of life as a consequence of assault – Where victim later suffered fractured femur requiring surgery – Where decision made not to undergo possible life-saving surgery – Whether sufficient evidence for it to be open to jury to convict on basis that low quality of life resulting from assault caused decision not to undergo surgery – Whether appellant's conduct a "substantial or significant cause of death" – Whether appellant legally responsible for death. Words and phrases – "but for", "causation", "legal responsibility", "murder", "substantial or significant", "sufficiently substantial". Crimes Act 1900 (NSW), s 18(1)(a).

Criminal law – Sentence – Manslaughter – Where appellant pleaded guilty to manslaughter – Where hearing held to determine factual basis upon which appellant to be sentenced – Where acts comprising offence disputed – Where appellant failed to give evidence at sentencing hearing – Whether sentencing judge applied R v Miller [2003] QCA 404; [2004] 1 Qd R 548 – Whether sentencing judge drew adverse inferences from appellant's silence in making factual findings – Whether R v Miller [2003] QCA 404; [2004] 1 Qd R 548 wrongly decided – Whether sentencing judge permitted to more readily draw inferences adverse to appellant. Words and phrases – "absence of contradictory evidence", "accusatorial proceeding", "adverse inference", "balance of probabilities", "beyond reasonable doubt", "burden of proof", "civil standard", "contested facts", "contradictory out of court statements", "criminal standard", "fact-finding", "failure to give evidence", "Jones v Dunkel inference", "plea of guilty", "presumption of innocence", "rare and exceptional circumstances", "right to silence", "sentencing hearing", "standard of proof". Evidence Act 1977 (Qld), s 132

Western Australia v Manado Western Australia v Augustine Commonwealth of Australia v Augustine Commonwealth of Australia v Manado Aboriginals – Native title to land and waters – Determinations of – Native title rights and interests – Where s 212(2) of Native Title Act 1993 (Cth) provided that Commonwealth, State or Territory may by legislation confirm existing public access to and enjoyment of beaches and other categories of lands or waters – Where Parliament of Western Australia enacted legislation confirming public access and enjoyment pursuant to s 212(2) – Where s 225(c) of Native Title Act required that determination of native title rights and interests include nature and extent of "any other interests" in relation to determination area – Where s 253 of Native Title Act defined "interest" as including any other right or privilege over or in connection with land or waters – Whether s 225(c) required determination of native title to include reference to confirmation – Whether access and enjoyment capable of confirmation limited to legally enforceable rights and privileges – Whether act of confirmation through legislation enacted in reliance on s 212(2) gave rise to "right" or "privilege" amounting to "other interest" in relation to determination area. Words and phrases – "confirmation", "confirmed access and enjoyment", "determination area", "determination of native title", "general expectation of public access", "interest", "lack of legal prohibition", "land or waters", "liberty", "native title", "nature and extent of any other interests", "ordinary meaning", "other interest", "principle of public access", "privilege", "public access and enjoyment", "right", "unallocated Crown land". Coastal Waters (State Powers) Act 1980 (Cth), ss 4, 5. Coastal Waters (State Title) Act 1980 (Cth), s 4. Land Act 1933 (WA), ss 3, 164. Land Administration Act 1997 (WA), ss 3, 267. Native Title Act 1993 (Cth), ss 94A, 212, 225, 253. Off-shore (Application of Laws) Act 1982 (WA), s 3. Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA), s 14.

Criminal law – Sentence – Irrelevant consideration – Where respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – Where primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Where Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Where respondent's mental condition at time of offending called for application of principles stated in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 – Where element of offence of infanticide included disturbance of balance of mind – Where infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Whether Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide. Words and phrases – "acceptance of a plea", "attempted murder", "disturbance of mind", "impaired mental functioning", "infanticide", "irrelevant consideration", "manifestly excessive", "mental condition", "mitigating factors", "moral culpability", "murder", "sentencing", "sentencing considerations", "specific error", "Verdins considerations". Crimes Act 1958 (Vic), ss 3, 6(1), 321P(1)-(1A).

Stamp duties – Declaration of trust – Partnership – Dissolution – Partnership assets – Nature of partners' rights in relation to partnership assets – Where freehold titles to land held by two partners as joint tenants – Where other partners not registered title holders – Where partnerships dissolved but not wound up upon death of one partner holding titles – Where surviving partner declared trusts over freehold titles for benefit of other partners in proportion to partnership interests – Where Commissioner assessed declaration of trust as "dutiable transaction" within meaning of Duties Act 2008 (WA), s 11(1) – Whether partner holding freehold titles trustee for other partners – Whether declaration of trust by surviving partner holding freehold titles created new interests in land – Whether declaration of trust dutiable transaction. Words and phrases – "beneficial interest", "conveyance", "declaration of trust", "dissolution", "dutiable transaction", "equitable interest", "non-specific interest", "partners' interest", "partnership property", "right to account and distribution", "transfer", "trust for partnership", "winding up". Partnership Act 1895 (WA), ss 30, 32, 33, 50, 57. Duties Act 2008 (WA), ss 11(1)(c), 78.

CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Application to transfer proceedings commenced in the Supreme Court to the District Court — Where declaratory relief sought — Where construction of contractual obligations in issue — Where relations between the Commonwealth government and a foreign government in issue

CIVIL PROCEDURE — time — extension of time — service of expert report out of time — whether necessary to demonstrate exceptional circumstances under r 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW)

CIVIL PROCEDURE – argument relied on not previously pleaded – prejudice to other party – proper articulation of claim

LEGAL AID – pro bono assistance – claim for possession of land – where defendant was guarantor and mortgagor for loans to companies of her son – where defendant was an old-aged pensioner - where defendant’s reading and writing skills in English lacking - son now bankrupt – where defendant authorised son to act on her behalf in the proceedings – undesirability of son conducting proceedings for defendant – limited referral for advice and drafting of pleadings

CORPORATIONS – winding up – statutory demand –application to set aside – where companies will not bring application themselves – application for leave to bring derivative action – Corporations Act 2001 (Cth) s 237 – where leave sought on interim basis – Corporations Act s 241 – leave granted

CORPORATIONS – winding up – where company in liquidation – where property of company disclaimed by liquidator – Corporations Act 2001 (Cth) s 568(1) – where sale of company property generated surplus funds – application to vest surplus funds in applicant liquidator – Corporations Act s 568F(1) – vesting order made

VALUATION – expert determination – valuer appointed pursuant to lease to determine current market rent – whether determination carried out in accordance with the terms of the lease – adequacy of reasons given by valuer – whether valuer required to comply with code of professional conduct – whether valuer failed to comply with code – whether valuer failed to disregard goodwill of lessee’s business – whether valuer failed to have regard to incentives given to lessees of comparable premises – not shown that determination was not carried out in accordance with the provisions of the lease – determination held to be final and binding on the parties LAND LAW – leases – rent – provision for review of rent – valuer appointed as expert to determine current market rent – whether determination carried out in accordance with the terms of the lease – adequacy of reasons given by valuer – whether valuer required to comply with code of professional conduct – whether valuer failed to comply with code – whether valuer failed to disregard goodwill of lessee’s business – whether valuer failed to have regard to incentives given to lessees of comparable premises – not shown that determination was not carried out in accordance with the provisions of the lease – determination held to be final and binding on the parties

COSTS – appeals – offers of compromise – where respondent (plaintiff) achieved a result on appeal no less favourable than his rejected offer of compromise – where application of UCPR r 42.14 as modified by r 51.48(1) engaged – where appellant’s rejection of offer unreasonable – where respondent’s “favourable” judgment, measured by reference to that offer, also represented a successful outcome to appellant (defendant) in the appeal – discretion to “order otherwise” in relation to costs of appeal, both before and after making of offer

TORTS – general principles – vicarious liability – workplace – liability of builder for negligent acts of supervisor on building site – supervisor employed by independent contractor – supervisor under builder’s control – whether employer of supervisor vicariously liable for negligence of supervisor TORTS – negligence – apportionment of responsibility between tortfeasors – both parties occupied parts of building site – liability of head contractor – liability of subcontractor undertaking building work – heavy metal plate covering penetration into underground retention pit removed – replacement with empty pallet – delivery driver injured by fall into pit TORTS – negligence – contributory negligence – injury to driver of truck – delivery of supplies to building site before dawn – driver clearing site of empty pallet – concealed penetration into underground retention pit – Civil Liability Act 2002 (NSW), s 5R TORTS – negligence – employer – duty of corporate alter ego of sole employee to provide safe system of work – business involved delivery of supplies to building sites – assessment of risks at sites not controlled by employer – Civil Liability Act 2002 (NSW), s 5B

TORTS – intentional torts of sexual assaults and physical assault – four counts of sexual assault admitted and others denied by defendant – standard of proof – s 140 Evidence Act 1995 (NSW) –Briginshaw standard – disputed torts proved on credibility of witnesses EVIDENCE – tendency evidence – whether assaults the defendant admitted to should be allowed as tendency evidence to prove whether the disputed assaults occurred – notice requirement under s 97 of the Evidence Act 1995 (NSW) met – similarity of fact patterns between admitted and denied assaults – tendency evidence significantly probative for at least some of the disputed assaults – tendency evidence admitted for at least some of the disputed assaults but not necessary as court satisfied that the assaults occurred even absent tendency evidence TORTS – Wilkinson v Downton claim – whether torts committed were calculated to cause physical, psychiatric or psychological harm – each assault was calculated to and did cause the defendant such harm – not satisfied that defendant’s overall abusive and controlling behaviour aside from the assaults sufficient to satisfy the Wilkinson v Downton test - assaults sufficient to establish a Wilkinson v Downton claim even absent more general behaviour towards plaintiff LIMITATION OF ACTIONS – no limitation period applicable to counts of sexual assault – s 6A Limitation Act 1969 (NSW) – whether 2012 non-sexual assault statute barred by 3 year discoverability period in s 50C of Limitation Act 1969 (NSW) – defendant bears onus of proof for an action being statute barred – defendant failed to discharge onus of showing psychological and psychiatric harm specifically attributable to the 2012 assault became discoverable more than three years prior to plaintiff commencing action DAMAGES – whether damages assessed under the Civil Liability Act 2002 (NSW) – each assault excluded from the damages provisions of the Civil Liability Act 2002 (NSW) – damages at large DAMAGES – general and aggravated damages – general damages awarded for impact of sexual and physical assaults on plaintiff’s childhood and life more generally – recognised psychiatric condition – aggravated damages awarded because assaults caused ‘injury to feelings caused by insult, humiliation and the like’ DAMAGES – plaintiff claims for past and future medical expenses – allowance based on estimate – limited evidence to support plaintiff’s specific quantification DAMAGES – economic loss – plaintiff claims for losses related to past and future economic loss –estimate – limited evidence to support plaintiff’s specific quantification DAMAGES – exemplary damages – defendant’s conscious wrongdoing was done in contumelious disregard for the plaintiff’s rights – discretion should be exercised in favour of plaintiff – exemplary damages awarded

CORPORATIONS — Winding up — Liquidators — Powers — Application for powers to enter litigation funding agreement and conduct investigations

ASSOCIATIONS AND CLUBS – registered club – extraordinary general meeting – resolution that property be “non-core property” – whether such resolution is one dealing with alienation of club’s property – whether Associate Members of club entitled to vote – where any such entitlement made no difference to the outcome – whether validating order should be made under s 1322 of the Corporations Act 2001 (Cth)

LIMITATION OF ACTIONS — Application for extension — Limitation Act 1969 (NSW) — Where the plaintiff police officer suffered psychiatric injuries in the police force PRACTICE AND PROCEDURE — Separate determination — Uniform Civil Procedure Rules 2005 (NSW), r 28.2 — Application to consider extension of time and whether the plaintiff was disabled separately from and before the substantive hearing

TORT – Negligence – Breach of duty – Liability – Plaintiff injured while driving a grader on a coal mine haul road – Whether the injury occurred due to collision with a lamination or a windrow TORT – Negligence – Contributory negligence DAMAGES – Assessment

EQUITY — equitable remedies — injunctions — ex parte — standing — private event held on commercial premises EQUITY — equitable remedies — injunctions — ex parte — undertaking as to damages

HIGH RISK OFFENDERS – withdrawal of application – Court imposed requirement for leave to re-apply PRACTICE and PROCEDURE – withdrawal after notification that adjournment opposed – leave to withdraw granted on condition of costs and leave to re-apply

MORTGAGES AND SECURITIES — mortgages — mortgage contracts — form, validity and effect – solicitor’s ad hoc authority to deliver executed mortgage instrument

CORPORATIONS – Directors and officers – Fiduciary duties and Directors’ duties – Duty to act in good faith in the best interests of company and for proper purpose – Duty not to place oneself in position of conflict of interest between oneself and principal – Where plaintiff company sued two former directors for breach of fiduciary obligations, both in equity and pursuant to 181(1) and 182(1) of the Corporations Act 2001 (Cth) – Where the impugned conduct arose in connection with a 2008 board resolution authorising purchase and development of a house in Wollongong – Project involved plaintiff spending $10.153 million through a subsidiary company whose only asset was the house; all the shares in the subsidiary were sold to a third party in 2013 for $3.75 million, which is what the house was then valued at, leading to a loss for the plaintiff of $6.4 million – In promoting the project to the company’s board, the defendant directors (a married couple) intended to, and later did, use the house as an exclusive rent-free residence for themselves and their children, but did not disclose this intention to the board; they instead advanced a contrary purpose to secure passage of the resolution and personally voted on it instead of recusing themselves – Where one of the two defendant directors cross claimed against the company secretary and the two non-defendant directors of the company who voted on the impugned resolution, contending that if he himself was found liable then these three cross defendants were similarly liable – Held: defendant directors in breach of fiduciary duties and liable to plaintiff for loss of $6.4 million plus interest. Cross claim failed, as the cross defendants were not shown to have been aware of the defendant directors’ true purpose in promoting the purchase. CORPORATIONS – Directors and officers – Directors’ duties – Duty of care and diligence – Where plaintiff company sued two former directors for breach of the duty of care and diligence, both in equity and pursuant to s 180(1) of the Corporations Act 2001 (Cth) – Where one of the two defendant directors cross claimed against the company secretary and the two non-defendant directors of the company who voted on the impugned resolution, contending that if he himself was found liable then these three cross defendants were similarly liable – Held: defendant directors not liable for breach of this duty due to lack of evidence, and cross defendants could have no coordinate liability to the plaintiff for breach of this duty. EQUITY – Trusts and trustees – Constructive trusts – Rule in Barnes v Addy – Where plaintiff company sued defendant company (being plaintiff’s former wholly owned subsidiary), asserting a constructive trust over a house which had been purchased with money the plaintiff invested in and loaned to the subsidiary – The expenditure was a result of the breach of fiduciary obligations on the part of two directors of the plaintiff – Defendant received the money with knowledge of the breach because the two defaulting directors were also directors of the defendant company – Where, before proceedings commenced, the plaintiff had converted the debt the defendant owed to it into additional equity in the defendant and then sold all of its shares in the defendant to a third party for $3.75 million – Held: constructive trust not available because plaintiff unable to rescind the earlier transactions and did not seek to rescind the agreement to convert the debt to equity and the sale of shares to the third party. EQUITY – Equitable remedies – Equitable compensation – Where plaintiff company sought equitable compensation against two defendant directors for breach of fiduciary obligations; plaintiff also sought equitable compensation against its former subsidiary company which received the plaintiff’s funds with knowledge of the breach by the defendant directors – Where plaintiff later converted the debt owed to it by the subsidiary into further equity in the subsidiary and then sold all of its shares in the subsidiary to a third party for $3.75 million – Consideration of the causation test applicable to equitable compensation, including the Privy Council’s decision in Brickenden v London Loan & Savings Co concerning the kind of counterfactual scenarios courts can consider in determining causation – Consideration of distinction advanced between substitutive compensation and reparative compensation – Held: defendant directors held liable to pay equitable compensation to the plaintiff for all of the loss that would not have happened but for the breach (less the $3.75 million from the share sale) plus interest. Plaintiff’s claim for equitable compensation against the subsidiary refused on discretionary grounds because it was inconsistent with the sale of shares in the subsidiary to a third party.

STATUTORY INTERPRETATION – declaratory relief – whether firearms prohibition order made under the Firearms and Dangerous Weapons Act 1973 constitutes a firearms prohibition order for the purposes of Part 7 of the Firearms Act 1996 – savings and transitional provisions – ordinary meaning manifestly absurd or unreasonable – extrinsic materials – purposive construction of Firearms Act 1996 – HELD: firearms prohibition order made under the Firearms and Dangerous Weapons Act 1973 is a firearms prohibition order for the purposes of Part 7 of the Firearms Act 1996 – amended summons dismissed

SEARCH WARRANTS – BAIL CONDITIONS – material provided as a condition of bail – deposited with Court pursuant to Court order – Court grants Commissioner of Police access to conduct investigation – material included electronic data that was copied – criminal proceedings terminated – whether order granting access ceases – inherent power of Court – asserted possessory title to “information” – whether information property – status of electronic data – whether can be returned under Law Enforcement (Powers and Responsibilities) Act 2002 – proceedings dismissed

CRIMINAL LAW – Evidence – Accused charged with doing acts in preparation for a terrorist act or acts – Where accused sought to tender evidence of a large volume of material found on electronic devices including pornographic video footage – Assessment of probative value – Whether probative value of the evidence was substantially outweighed by the danger that the evidence might cause or result in undue waste of time – Evidence excluded

CONTRACTS — formation – agreement – intention to make concluded bargain – indicative letter of offer of loan – requirement to pay fees whether or not loan made – where mortgage signed but loan did not proceed – whether indicative offer bound borrower to pay fees – whether indicative offer superseded by mortgage WAIVER – where fees payable on one of two occasions at option of debtor – where no demand made by creditor before first occasion – whether creditor waived obligation to pay

CIVIL LAW – Interim supervision order – Extended supervision order – applicability of Crimes (High Risk Offenders) Act to parolees – difference between parole and extended supervision order conditions – parole conditions superseded by interim supervision order conditions - unacceptable risk of committing another serious violence offence - criminal history – involvement in offenders programs

COSTS – third party costs – indemnity costs –reasonable apprehension of bias – comments critical of delay – fair-minded lay observer or bystander test –whether conduct of litigation unreasonable – interests of justice test – whether exceptional circumstances exist to warrant indemnity costs order

Administrative Law – Judicial Review – Statutory construction – Plaintiff previously convicted of murder and sentenced to life imprisonment – Sentence subsequently re-determined so as to incorporate a non-parole period – Where non-parole period expired and plaintiff sought release on parole – Plaintiff a citizen of the United Kingdom who had never applied for Australian citizenship – Where plaintiff’s visa had been cancelled and plaintiff was liable to immediate deportation to the United Kingdom upon release – Evidence before the Authority to support the conclusion that the plaintiff required assistance to reintegrate into the community and address the risk of reoffending – No means available for any supervision of the plaintiff if he left Australia – Where the State Parole Authority refused the plaintiff’s application for release on parole – Whether the Authority erred in taking into account the fact of the plaintiff's inevitable deportation – Whether the Authority erred in concluding that the interests of the safety of the community extended to the community in the United Kingdom to which the plaintiff proposed to relocate upon release and deportation Words and Phrases – “community" – “general community” – “interests of the safety of the community"

PRACTICE AND PROCEDURE – costs – security for costs – application for security for costs pursuant to s 1335(1) of the Corporations Act 2001 (Cth) – security sought against appellant company – concession that order for security should be made – determination of appropriate quantum of security

APPEAL – civil – notice of appeal – extension of time to apply for leave to appeal – where notice of appeal filed almost two years after the material date – where government respondent consented to late filing – relevance of model litigant policy VALUATION – compulsory acquisition of land – assessment of compensation – market value – role of “judicial valuer” – valuation of non-marketable parcel – assessment of value before and after acquisition – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1) VALUATION – compulsory acquisition of land – assessment of compensation – disturbance – where acquired land included resource – assessment of value where resource only had value because of the carrying out of the public purpose for which the land was acquired – whether claimed disturbance related to “actual use” of acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55(d) and 59(f)

CRIME – appeals – appeal against conviction – unsafe and unreasonable verdict having regard to the evidence – attempted armed robbery – offender turned himself in and confessed in ERISP, was bailed, then failed to appear – applicant arrested over twenty years later when all evidence except for partial ERISP lost or destroyed – applicant denied he was the person in ERISP – whether open to the jury to be satisfied beyond reasonable doubt that the applicant was that person – circumstantial evidence – inference of identity – appeal dismissed

CRIMINAL LAW – appeal against sentence – importing a commercial quantity of a border controlled drug – utilitarian value of plea of guilty for Commonwealth offence – “Xiao error” established – mitigatory duress - lesser sentence warranted – applicant resentenced

CRIMINAL LAW – application for variation of commencement of sentence – where earlier unrelated sentence quashed – whether application for leave to appeal against sentence or application under s 59 – considerable confusion – where no ground impeaching reasons of sentencing judge – nature of appeal – jurisdiction – where extensive delay – whether criminal appeal rules provide a time limit for bringing application – discretionary considerations – where further sentences and parole orders made during period of delay – uncertainty around release dates if application was made earlier – whether egg can be unscrambled – where no evidence of matters relevant to the exercise of discretion – where applicant at large on parole order – rendering nugatory decisions of Parole Authority – application refused in exercise of discretion

CRIME — Sexual offences — alleged incompetence of trial counsel in failing to dispute geographical jurisdictional nexus with New South Wales in respect of one count on the indictment — whether there was a rational explanation for counsel’s approach — where dispute as to nexus on that count may have enhanced the complainant’s credibility on another count on the indictment CRIME — Appeals — Appeal against conviction — Unreasonable verdict

PROCEDURE – contempt – breach of search orders – abuse of documents and devices – access regime – supervision by respondent’s legal representative – insufficient funds to retain legal representation – lack of financial evidence

CRIME — Confiscations — Restraining orders