Cases and authorities

CRIMINAL LAW - sentence appeal - aggravated armed robbery offences - offences committed whilst armed and in company against various hotels - factors amounting to special circumstances do not compel a reduction in non-parole component - special circumstances found in relation to individual sentences - asserted error in not reflecting finding of special circumstances in overall sentence - proportions in overall sentence reflected specifically stated intention of sentencing judge - no error - asserted lack of parity with co-offender - substantially different factual basis for each case - no legitimate basis for sense of grievance

CRIMINAL LAW - application for leave to appeal against sentence - application well out of time - identification of "Muldrock error" - no error in giving no discount for pleas of guilty - no utilitarian benefit from pleas - sentences not manifestly excessive - leave to appeal granted - appeal dismissed

CRIMINAL LAW - sentence appeal - asserted Muldrock error - application for extension of time in which to appeal -Applicant convicted after trial in February 2010 - offences of causing a person to take an intoxicating substance with intent to have sexual intercourse without consent (s.38(b) Crimes Act 1900), indecent assault (s.61L) and having sexual intercourse without consent (s.61I) - s.61I offence only subject to standard non-parole period - sole ground of appeal asserted Muldrock error - no appeal in relation to sentences for other offences - Muldrock error demonstrated -whether some lesser sentence warranted in law - where challenge is made to only one of several sentences imposed at the same time - held no lesser sentence warranted in law - insufficient prospects of success - application for extension of time to appeal refused

CRIMINAL LAW - sentence appeal - application for extension of time to appeal - Applicant sentenced in August 2008 - Applicant convicted after trial of two counts of aggravated sexual intercourse without consent (s.61J Crimes Act 1900) and one count of indecent assault (s.61L Crimes Act 1900) - s.61J offences subject to a standard non-parole period - sole ground of appeal asserted Muldrock error - relevant considerations for grant of extension of time - Muldrock error conceded by Crown - whether lesser sentence warranted in law - extensive criminal history including prior sexual assault offences - offences committed in breach of conditional liberty - Applicant with deprived early background and later stable and supportive marriage - relevance of Applicant's mental condition to sentence - Applicant sentenced subsequently to entirely concurrent terms of imprisonment for unrelated offences - held no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused

CRIMINAL LAW - sentence appeal - causing grievous bodily harm with intent to murder - applicant sentenced in September 2009 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - extension of time opposed by Crown - importance of principle of finality - whether substantial injustice would result if extension of time were refused - was there "Muldrock error" - application of s6(3) of the Criminal Appeal Act 1912 - no lesser sentence warranted in law - application for extension of time dismissed.

CRIMINAL LAW - sentence appeal - inflicting grievous bodily harm with intent to cause grievous bodily harm - applicant sentenced in December 2008 - whether decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 entitled applicant to an extension of time for leave to appeal against sentence - importance of principle of finality - whether substantial injustice would result if an extension of time were refused - prospects of success of application for leave to appeal - application of s6(3) of the Criminal Appeal Act 1912 - re-exercise of sentencing discretion by Court of Criminal Appeal if "Muldrock error" made out - no lesser sentence warranted in law - application for extension of time dismissed.

CRIMINAL LAW - appeal - leave to appeal against severity of sentence - parity - discounts - no error established - parity with co-offenders - no disparity in sentences - leave to appeal granted - appeal dismissed

CRIMINAL LAW - appeal pursuant to certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 - motion that indictment be quashed based on inconsistency between State and Commonwealth laws dismissed. CONSTITUTIONAL LAW - whether there is inconsistency between State and Commonwealth laws - whether s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) is inconsistent with Pt 9.1 of the Criminal Code Act 1995 (Cth).

CRIMINAL LAW - appeal pursuant to certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 - motion that indictment be quashed based on inconsistency between State and Commonwealth laws dismissed. CONSTITUTIONAL LAW - whether there is inconsistency between State and Commonwealth laws - whether s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) is inconsistent with Pt 9.1 of the Criminal Code Act 1995 (Cth).

CRIMINAL LAW - appeal against conviction - two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985. CONSTITUTIONAL LAW - inconsistency between State and Commonwealth laws - whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth). EVIDENCE - admissibility - improperly obtained evidence - gravity of impropriety or contravention - evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 - authority subsequently held to be invalid. EVIDENCE - admissibility - improperly obtained evidence - whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community. EVIDENCE - admissibility - improperly obtained evidence - whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth). EVIDENCE - admissibility - improperly obtained evidence - whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability. EVIDENCE - witness - cross-examination on voir dire - privilege - self-incrimination - whether answers would tend to prove an offence against a law of a foreign country - proof of foreign law - whether the interests of justice required that the evidence be given over objection. CRIMINAL LAW - sentencing - parity principle.

PRACTICE AND PROCEDURE - claim for damages for defamation - commenced more than three years after publication - struck out because statute-barred - application for leave to appeal - dismissed - no question of principle.

INSURANCE - collision between train and car at level crossing - claim by railway authorities against insurer of car - whether car owner/driver incurred legal liability "as a result of an accident" - whether placing of the car in the path of the train was intentional or inadvertent - APPEAL - interference with judge's findings of fact - re-assessment of all evidence

EVIDENCE - admissibility - documents shown to witness in cross-examination and marked for identification - expert witness provides opinion on documents and cross-examination - documents admissible

ADOPTIONS - where prospective parents seek orders joining them to the proceedings as parties - interests of prospective parents cannot be disregarded - where it is proper that the prospective parents have an opportunity to put their position before the court

EVIDENCE - admissibility - Part 3.4 Evidence Act 1995 (NSW) - s87 - whether statement of witness contains admissions - whether statement contains representations to which it is reasonably necessary to refer in order to understand admissions - whether witnesses representations related to a matter within the scope of her employment

EVIDENCE - admissibility of question

EVIDENCE - s 138 and s 139 Evidence Act 1995 - improperly obtained evidence- failure to caution the accused- interview conducted notwithstanding initial refusal to answer questions- s 90 Evidence Act 1995 - unfair deprivation of right to silence- advantage taken of vulnerable person- 15-year-old girl CRIMINAL LAW - right to silence- requirement for caution- provisions relating to juveniles

CORPORATIONS - Winding up - Creditor's statutory demand - Application to set aside a creditor's statutory demand under ss 459H and 459J of the Corporations Act - whether a genuine dispute is established - whether some other reason to set aside the demand.

DEFAMATION- cause of action- corporate plaintiff not established excluded - imputations- whether carried- identity of natural plaintiffs irrelevant to Broadcast- whether defamatory- no injury to plaintiffs' reputation as distinct from goods- defences- justification- truth- evidence of all contextual imputations to be weighed against imputations not proved true- qualified privilege- when available to mass media- damages- special damages- whether attributable to matter complained of EVIDENCE- findings as to credit- witness advocate for own cause TORTS- injurious falsehood- relevant counterfactual to assess damages WORDS AND PHRASES- meaning of 'falsely'- synonymous with 'incorrectly'

CONFLICT OF INTEREST - whether actual conflict exists - circumstances justifying separate representation of a party suing in different capacities STAY OF PROCEEDINGS - discretionary considerations - case management - policy of Civil Procedure Act EXPERTS' REPORTS - principles governing use of - control by the court

SECURITY FOR COSTS - costs of appeal

MISLEADING OR DECEPTIVE CONDUCT - financial services - s 12DA Australian Securities and Investment Commission Act 2001 (Cth) - where respondents had not read the documents provided by the appellants in relation to a complex financial product - where strong reservations on credit had been expressed - whether respondents were led into error by the appellants in relation to the capital protection feature - whether the appellants caused the respondents' loss - where post-facto evidence relied upon

WORKERS' COMPENSATION - six month time limit after injury received to commence claim for compensation - injury taken to have been received when worker first became aware of it - s 261(6) Workplace Injury Management and Workers Compensation Act 1998 - injury defined in Act as "personal injury arising out of or in the course of employment" - appellant worked in noisy conditions at factory operated by respondent - gradual onset of hearing loss - whether worker's opinion or belief that hearing loss causally related to noisy employment constitutes awareness where determination of the cause of a gradual hearing loss is a matter for expert opinion - whether worker only aware when received appropriate medical advice - discussion of concepts of awareness and knowledge

WORKERS' COMPENSATION - six month time limit after injury received to commence claim for compensation - injury taken to have been received when worker first became aware of it - s 261(6) Workplace Injury Management and Workers Compensation Act 1998 - injury defined in Act as "personal injury arising out of or in the course of employment" - appellant worked in noisy conditions at factory operated by respondent - gradual onset of hearing loss - whether worker's opinion or belief that hearing loss causally related to noisy employment constitutes awareness where determination of the cause of a gradual hearing loss is a matter for expert opinion - whether worker only aware when received appropriate medical advice - discussion of concepts of awareness and knowledge

CRIMINAL LAW - procedure - course of evidence, statements and addresses - addresses - final address of counsel for Crown - during summing up new case put against accused - new case not put before jury or during opening or part of case statement - change in course prejudicial to accused - parties to consider how to proceed

EVIDENCE - admissibility - rejected evidence - cross-examination making rejected evidence relevant

PARTNERSHIP - accounting between partners - agreement to make adjustment to billings accounting if one partner's contribution to gross billings fell below a certain proportion - construction of agreement - method of quantifying additional contribution by one partner - whether additional contribution should be included in gross billings for determining proportions of contribution to billings - relevant financial years to consider

WILLS, PROBATE AND ADMINISTRATION - Probate - Letters of administration with will annexed - Application for revocation of grant - Where due and proper administration of estate prevented by continuation of one of two co-administrators - Form of orders - Order for revocation of grant, with fresh grant to continuing administrator.

EVIDENCE - client legal privilege - waiver - whether for purposes of s 122(2) Evidence Act 1995 party acted inconsistently with objecting to evidence of counsel's advice - counsel's advice formed part of basis for matters deposed to in affidavit but not mentioned in affidavit. EVIDENCE - client legal privilege - waiver - whether for purposes of s 122(3) of Evidence Act 1995 party knowingly and voluntarily disclosed the substance of counsel's advice - disclosure that counsel had recommended a course of action - no disclosure of counsel's reasoning. EVIDENCE - client legal privilege - wavier - where privilege in relation to other documents waived by voluntary disclosure - whether privilege waived pursuant to s 126 Evidence Act 1995 in relation to an advice of counsel because adducing evidence of it is reasonably necessary to enable a proper understanding of other documents.

CONTRACT - banking - bank seeks to enforce an all moneys mortgage securing a personal guarantee executed by the defendants in relation to a business loan -mortgage executed in 1992 - the first defendant claims that she was not aware at the time of executing the personal guarantee that her liability was secured by the mortgage - whether the bank officer informed the first defendant that the guarantee was secured by the mortgage - first defendant argues that the guarantees are void or voidable because of the bank's non-compliance with cl. 28.4 and 28.5 of the Code of Banking Practice - alternatively the first defendant seeks damages for breach of the Code in the amount equal to her liability to the bank - the bank admits breach of cl. 28.5 - the bank say it provided the first defendant with a list of any "related security contracts" pursuant to cl. 28.4 - nature of the obligations under the Code - effect of non-compliance with the Code - whether the first defendant would have proceeded with the guarantee if she knew it was secured by the mortgage.

APPEAL - appeal from Local Court - CONTRACT - interpretation of terms of contract - whether the Magistrate adopted the wrong methodology - implied terms - whether there was an implied term regarding supply of blocks

CRIMINAL LAW - sentencing - joint criminal enterprise - manslaughter - parity - finding of special circumstances

CRIME - sentencing - aggregate sentences - parity - where sentence imposed on co-offender very lenient and (by majority) erroneously so - application of principles stated in R v Green; R v Quinn

CRIMINAL LAW - sentence appeal - take part in manufacture of large commercial quantity of methylamphetamine - well planned and organised operation - appellant a central part of the organisation - asserted Muldrock error - sentencing judge arrived at head sentence for which notional non-parole period equated to standard non-parole period before reducing for mitigating features - error established - no lesser sentence warranted

CRIMINAL LAW - sentence appeal - cultivation of large commercial quantity of cannabis by enhanced indoor means - asserted Muldrock error - evidence categorisation of offence in relation to the "midrange" and reliance upon standard non-parole period as significant - need to resentence - consideration of personal matters occurring since incarceration

CRIMINAL LAW - murder charge - directions to jury - defence of provocation - direction to be given where only evidence of provocation is evidence of the accused - Liberato v the Queen 159 CLR 507 - whether direction should have been given as set out in the Criminal Trial Courts Bench Book - whether jury should have been directed that if it did not accept appellant's evidence it still had to consider whether the Crown had negatived provocation beyond reasonable doubt

CRIMINAL LAW - sentence appeal - Applicant sentenced in November 2010 - claim of Muldrock error - application for extension of time to appeal - Applicant pleaded guilty to one count of having sexual intercourse with a child under the age of ten years contrary to s.66A Crimes Act 1900 - victim aged five to six years - principle of finality - relevant considerations for grant of extension of time - held no Muldrock error demonstrated - challenges to sentencing judge's assessment of objective gravity - whether offence motivated by sexual gratification - no error demonstrated - claim of manifest excess - held sentence not manifestly excessive - no lesser sentence warranted - insufficient prospects of success - application for extension of time to appeal refused

CRIMINAL LAW - sentence appeal - murder contrary to s18 Crimes Act 1900 - application for extension of time for leave to appeal against sentence - delay of over 6 years - principle of finality - applicant aged 16 at time of offence - application of s6(3) of Criminal Appeal Act 1912 - substantial injustice likely to occur if extension of time not granted - insufficient weight given to age of applicant - less severe sentence warranted in law - applicant re-sentenced.

CRIMINAL LAW - sentence appeal - sexual intercourse without consent, contrary to s61I Crimes Act 1900 - "Muldrock error" - application for extension of time for sentence appeal - delay of 5 years - principle of finality - relevant considerations for a grant of an extension of time - application of s6(3) Criminal Appeal Act 1912 - insufficient prospects of success - application for extension of time dismissed.

CRIMINAL LAW - Application for extension of time for leave to appeal against sentence - sexual intercourse with a child under 10, contrary to s68A(2) Crimes Act 1900 - whether "Muldrock error" occurred - two year delay - principle of finality - relevant considerations for grant of extension of time - whether error in assessment of objective gravity of offence - whether sentence manifestly excessive - insufficient prospects of success - application for extension of time dismissed.

CRIMINAL LAW - sexual offences - validity of indictment - statutory provisions changed during period covered by indictment - not known when during the period the offences were committed - whether appellant charged with offences known to law - whether indictment bad for duplicity CRIMINAL LAW - sexual offences - judge alone trial - context evidence - whether complainant's errors and inconsistencies in versions of events should have led to rejection of her evidence CRIMINAL LAW - sentencing - sexual offences - application of Di Simoni 147 CLR 383 principle

CRIMINAL LAW - conviction appeal - supply of prohibited drug - credibility evidence - coincidence evidence

CRIMINAL LAW - appeal - application to extend time in which to seek leave to appeal against sentence - asserted error on the part of the sentencing judge as a result of the decision in Muldrock v The Queen - principles to be applied in determining whether extension of time should be granted - error established CRIMINAL LAW - sentence - where applicant convicted of several counts of having sexual intercourse without the consent of the victim - where some counts involved digital penetration - whether offending which involves digital penetration should be regarded as being less serious than other forms of similar offending

TORTS - damages - whether award of damages for non-economic loss excessive - whether award of damages for past and future economic loss excessive - whether plaintiff entitled to damages for future domestic care - apportionment under Workers Compensation Act 1987, s 151Z

ADMINISTRATIVE LAW - judicial review - Industrial Court - decision not to submit question of law - no discretion to decline to submit question of law to Full Bench - whether question put a question of law - whether Supreme Court has jurisdiction - requirement of jurisdictional error - appeal to Full Bench available - discretion to decline relief CRIMINAL LAW - appeal by submission of question of law - prosecution under Occupational Health and Safety Act 2000 (NSW) - claim of abuse of process by prosecutor - production of documents - claim for client legal privilege rejected - Criminal Appeal Act 1912 (NSW), s 5AE - Industrial Relations Act 1996 (NSW), s 196 EVIDENCE - client legal privilege - imputed waiver by statement of reliance on legal advice - whether substance of legal advice disclosed - Evidence Act 1995 (NSW), s 122 WORDS AND PHRASES - "question of law arising at or in reference to the proceedings" - Criminal Appeal act 1912 (NSW), s 5AE

CRIMINAL LAW - judge alone trial - murder - child victim

CRIMINAL LAW- sentencing- murder- 25 % discount for plea of guilty- objective seriousness- use of weapon- aggravating factors- risk to public safety- offence committed on parole- moral culpability- partial accumulation

EVIDENCE - expert evidence - admissibility of evidence - compliance with r 31.23 of Uniform Civil Procedure Rules 2005 - whether discretion should be exercised under r 31.23(3) of UCPR - interests of justice require balance between any real or substantial prejudice and the determination of all issues at trial - overriding duty of trial judge to ensure a fair trial - overriding purpose of UCPR

PRACTICE & PROCEDURE - where plaintiff did not include subject document in court book - whether plaintiff provided sufficient notice of its intention to rely on the document - where defendant deprived of opportunity to cross-examine the author of the document

CRIMINAL LAW - remarks on sentence - plea of not guilty - offender convicted of murder - offender part of a joint criminal enterprise - approach to fact finding - offender with prior criminal convictions - offence of great moral culpability - sentence imposed