Friday, 21 April 2017

Weekly Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal

Search Engine

Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary

DPP (Cth) v Pratten (No 2) (NSWCCA) - criminal law - respondent convicted of defrauding the Commonwealth - successful appeal and re- - whether second court could impose higher than that imposed at first trial - whether delay relevant - cause of delay to be identified - sentences manifestly inadequate - resentenced

Wilson v R (NSWCCA) - criminal law - historical sexual offences - setting NPP periods - practice at time of offending to be applied - error demonstrated - resentenced

Wat v R (NSWCCA) - criminal law - drug offences - applicant and co-offender sentenced to different terms - severity appeal on ground of parity - co-offender’s sentence lenient - error demonstrated - applicant resentenced

State of NSW v Kay (NSWSC) - criminal law - suppression order - principle of open justice - high risk offender - interim suppression order made - whether permanent order appropriate - necessity for - interim order revoked

Baker (a Pseudonym) v DPP (VSCA) - criminal law - sexual offences - permanent stay - offender a child at time of offences but an adult at time of trial - whether breach of human rights - Charter rights considered - no breach of Charter - principles relating to permanent stay considered - application refused

Burgess v The Queen (VSCA) - criminal law - historical sexual offences - whether sentence imposed on 83-year-old offender crushing - use of life expectancy statistics - sentence not

Page 1 manifestly excessive

R v MCK (QCA) - criminal law - maintaining a sexual relationship with a child - whether plea entered on legal advice that would be avoided - whether sentence of 9 years 11 months manifestly excessive - appeal allowed - resentenced to 4 years, suspended at 12 months

R v Bricola (QCA) - criminal law - murder - character - whether evidence that appellant had met a witness in a prison and was familiar with police procedures improperly put his character into evidence - whether defence counsel failed to adduce exculpatory evidence - no errors identified - appeal dismissed

Atherley v The State of Western Australia (WASCA) - criminal law - white collar crime - accountant stealing from client - whether indictment bad for duplicity - whether sentence offended totality principle - no errors demonstrated - appeal dismissed

The Queen v Adam Filippone (NTSC) - criminal law - hearsay notices - principles considered - notices examined and rulings on admissibility made

Summaries With Link (Five Minute Read)

DPP (Cth) v Pratten (No 2) [2017] NSWCCA 42 Court of Criminal Appeal of New South Wales Basten JA, Campbell & N Adams JJ Criminal law - respondent, who had incorporated an insurance company in Vanuatu, acted as an insurance broker in Australia, collecting insurance premiums in excess of $1.9 million - the respondent charged a fee of 33% of the net premiums received and some $4.5 million was paid to him and not declared as income - the respondent was charged with obtaining a financial advantage by deception and after a lengthy trial was convicted - he was sentenced and appealed - his appeal was upheld, his set aside and a re-trial ordered - his severity appeal was dismissed without consideration of its merits - on his re-trial, the respondent was found guilty of 7 counts of obtaining a financial advantage by deception (s134.2(1) Criminal Code Act 1995 (Cth)) - the offending was found to be a deliberate course of conduct undertaken in the expectation of avoiding tax - the respondent did not demonstrate remorse and his rehabilitation prospects were poor - respondent was sentenced to a total term of 5 years, NPP 2 years - the Commonwealth DPP appealed, arguing that the sentences were manifestly inadequate - two major issues on the appeal concerned the relevance of hardship to the respondent’s family and - held: (1) double jeopardy - the trial judge accepted that there is a principle of restraint inhibiting the imposition, following a conviction at a second trial, of a sentence higher than that imposed for the same offence at the earlier trial (R H McL v The Queen (2000) 203 CLR 452) - considering the application of this principle to federal

Page 2 offences (s16A Crimes Act 1914 (Cth): see Bui v DPP (Cth) (2012) 244 CLR 638), and noting that at it may be open to the court imposing the second sentence to impose a greater sentence if the first sentence was manifestly inadequate (see R H McL [23]; R v Petersen [1999] 2 Qd R 85, 87) - it was not open to the sentencing court, or this Court, to treat ‘double jeopardy’ as a relevant consideration involving the reduction of the sentence which would otherwise have been imposed, in resentencing for a federal offence; (2) hardship - noting that in NSW, hardship to an offender’s family or dependants is only to be taken into account in ‘exceptional’ circumstances (R v Togias (2001) 127 A Crim R 23, [13]-[17]; R v Zerafa (2013) 235 A crim R 265, [109]-[13]; R v Edwards (1996) 90 A Crim R 510) - here, the evidence did not establish that the length of the sentence would significantly and deleteriously affect the lives of the respondents’ family - the trial judge was in error in taking into account, as a factor mitigating the length of the sentence, the effect of the sentence on the respondent’s family; (3) whether the sentence was manifestly inadequate - the conduct of the respondent was ‘objectively above the mid-range in seriousness’ - the amount involved in the offences was well in excess of other cases where similar or higher sentences were imposed; (4) delay - to identify the relevance of ‘delay’ in the sentencing process it is necessary to identify salient factors in 3 categories (the beginning and end of the relevant period; the causes of the delay; the consequences of the delay) - these considerations have been considered in Sabra v Regina [2015] NSWCCA 38, [27]-[45]; see also Scook v The Queen (2008) 185 A Crim R 164 - dilatory behaviour on the part of prosecuting authorities may be a ground for mitigating the severity of a sentence for a federal offence (see s16A(2) (fa), (g), (h), (m), (n) Crimes Act 1914 (Cth)) - in the absence of statutory authority, a sentence for a federal offence should not be reduced as an expression of disapproval of the conduct of the prosecutor or investigating authority - here, only a minor portion of the delay could be treated as unreasonable conduct by the prosecutor - the respondent was not to be punished for exercising his rights as a criminal defendant, but neither was he to obtain a benefit from that exercise - a degree of reduction in the appropriate sentences was warranted as the respondent had been subject to conditional liberty for 6 years; (5) residual discretion should not be exercised - respondent resentenced [Editor’s note: Campbell & N Adams JJ agreeing with Basten JA]. Pratten (No 2)

Wilson v R [2017] NSWCCA 41 Court of Criminal Appeal of New South Wales Hoeben CJ at CL, Garling & Beech-Jones JJ Criminal law - applicant committed the principal offence of assault and act of indecency upon a person under the age of 16 at a date between November 1982 and March 1982 (s61E(1) Crimes Act 1900 (NSW)) - the complainant was either 7 or 8 years old and he was 45 or 46 - the complainant reported the matter to police in 1999, but did not make a written complaint until 2011 - the applicant was arrested and charged in May 2013 - the applicant entered a plea of guilty and asked that another s61E (1) offence against the same complainant committed in 1985 when she was 10 or 11 years be taken into account (s32(1) Crimes (Sentencing Procedure) Act 1999 (NSW)) - applicant was sentenced to a total effective term of 43 months , NPP 25 months

Page 3 - the sentencing judge allowed a 10% discount for the plea, which was entered on the eve of the trial and after the judge ruled that the prosecution could adduce tendency evidence - the applicant had also been convicted of 7 indecent assaults upon other complainants in 1979 & 1999 - on the applicant’s severity appeal - held: (1) historical approach to setting NPP - it is accepted in NSW that it is proper for a sentencing judge to take into account the sentencing practice prevailing as at the date of commission of the offence charged when sentencing practice has moved adversely to an offence since that time (Regina v MJR (2002) 54 NSWLR 368, [31], [71], [105]: AJB v Regina [2007] NSWCCA 51, [37]) - in 1982 a non- period was fixed at somewhere between a third and a half of the term of the sentence (AJB [39]) - this assessment of the prevailing practice in 1982 has been consistently applied in this Court since AJB was decided (Bradbery v Regina [2008] NSWCCA 93, [36]; CPW v R [2009] NSWCCA 105, [69]; MPB v R [2013] NSWCCA 213, [93]; Henderson v R [2016] NSWCCA 8, [44], [46]) - here, the sentencing judge was led into error in finding that the ordinary sentencing practice at the time of the commission of the principal offence was that the ratio of the parole period to the total sentence was between one third to one half - instead, the ordinary practice at that time was that the ratio of the non-parole period to the total sentence was between one third and one half - in Denham v R [2016] NSWCCA 309, [56] & Henderson v R [2016] NSWCCA 8, [46], [48] a failure by a sentencing judge to take into account the correct positon concerning the historical sentencing practice in setting non-parole periods was found to establish error justifying this Court’s interference - no different conclusion was warranted in this case - accordingly, the Court was required to determine whether some lesser sentence was warranted in law, or whether the ‘same sentence or a greater sentence [was] the appropriate sentence (Kentwell v the Queen (2014] 252 CLR 601, [35], [42]; s6(3) Criminal Appeal Act 1912 NSW)) - taking into account the applicant’s medical deterioration since he was incarcerated and accepting findings made by the sentencing judge, applicant resentenced to 3 years, NPP 18 months 2 days [Editor’s note: Hoeben CJ at CL & Garling J agreeing with Beech-Jones J].

Wilson

Wat v R [2017] NSWCCA 62 Court of Criminal Appeal of New South Wales Bathurst CJ, Walton & Price JJ Criminal law - severity appeal - applicant and Wei Piao Chu were suspected of being a ‘shore party’ for a transnational criminal syndicate - both pleaded guilty to one count of knowingly take part in the supply of a large commercial quantity of ephedrine (s25(2) Drug Misuse and Trafficking Act 1985 (NSW) (‘DMT Act’) - applicant sentenced to 15 years, NPP 10 years - applicant allowed 25% for his early plea - applicant, who was 65 years old, had been out of work for 3 years and was suffering financial difficulties due to his wife developing bowel cancer - he did not have a prior record and the sentencing judge found that he was unlikely to re-offend - applicant had good prospects of rehabilitation and ‘special circumstances’ were found - offending was at the upper end of mid-range - co-offender, who was 59 years and also without a prior record, was sentenced to 10 years, NPP 7 years - ‘special circumstances’ were also

Page 4 found in respect of the co-offender - on appeal, the applicant relied on several grounds, including parity - held: inherent characteristics of the offence are a level of planning and financial gain - these are not aggravating factors unless ‘the financial gain or the planning is significant [so that it is] more than might be expected in the lowest level of offending for this type of offence’ (Prculovski v R [2010] NSWCCA 274, [43]; Farkas v R (2014) 243 A Crim R 388, [62]) - the judge found that two substantial aggravating factors in this instance were that the offence was committed for financial gain and the applicant was involved in planned and organised criminal activity - the level of planning was elaborate and sophisticated - it went well beyond that which might be expected at the lowest level - no error - the sentence imposed on the applicant was appropriate - an appeal based upon parity assumes that the sentence is otherwise correct (Tatana v R [2006] NSWCCA 398, [15]; Gill v R [2010] NSWCCA 236, [50]) - there was, however, a marked disparity between the sentence imposed on the applicant and Chu, which gave rise to a justifiable sense of grievance which required appellant intervention (Postiglione V R (1997) 189 CLR 295) - the extent of the disparity was not explained - the scope for reduction was however limited and Chu’s sentence was lenient - applicant re-sentenced to 12 year, NPP 9 years [Editor’s note: Bathurst CJ & Walton J agreeing with Price J].

Wat

State of NSW v Kay [2017] NSWSC 274 Supreme Court of New South Wales Harrison J Criminal law - defendant subject to a supervision order pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (‘CHRO Act’) - an extension of the order for 3 years was sought and an interim order suppressing publication of the defendant’s name was made (s10 Court Suppression and Non-Publication Orders Act 2010 (NSW)) - the defendant applied to make the interim orders permanent - the defendant said that he was threatened regularly when he was in custody and that his friends and relatives had received threats - since his release he had not been threatened, but he had been dismissed from his employment due to ‘adverse recent media’ - held: the starting point was s6 Court Suppression Non-Publication Orders Act (‘CSNPO Act’) - whether or not to make an order is to be informed in the first instance by the consideration of the public interest in open justice (see Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378) - the prospect of collateral damage to third parties has not been thought to be sufficient to attenuate this principle - the defendant’s concern that friends and relatives may suffer or be adversely affected by association with publicity concerning him is not sufficient to limit the principle of open justice (Ashton v Pratt [2011] NSWSC 1092, [11]) - the focus is upon the question of necessity, which provides the touchstone of applicability for all the five paragraphs in s8 CSNPO Act (see also Hamzy v R [2013] NSWCCA 156) - the question of necessity and whether or not an applicant has made out a case for an order restricting or limiting publication is a function of the strength of the evidence called in support - P1 v D1 [2012] NSWCA 314, [49]-[51] considered the extent to which the defendant must demonstrate that an order is necessary to protect his safety - here, at the highest, the defendant is presently

Page 5 only, if reasonably, able to say that he holds fears for his safety - the concern he has for friends and relatives is insufficient to trigger the operation of s8(1)(c) - the evidence does not establish that his safety is at risk, either because of the probability of violence or because of some imminent threat of violence towards him - the relief sought fails to take account of the fact that his name and picture are now and for some considerable time have been open to public scrutiny - the primary object of the CHRO Act is to provide for the extended supervision and continuing detention of high risk sexual and violent offenders so as to ensure the safety of the community - that primary objective is arguably more effectively advanced by the coincidental promotion of the principle of open justice than by its restriction - it would only be in cases where an applicant were able to demonstrate by cogent evidence that people with knowledge of him were likely to resort to violence or that violence was imminent that an order suppressing his details could be made - this was not such a case - interim suppression order revoked [Editor’s note: Principal proceedings: State of New South Wales v Kay [2017] NSWSC 254; earlier proceedings including appeal: R v Kay [2000] NSWSC 716; Regina v Kay [2002] NSWCCA 286; interim suppression order: The State of New South Wales v Kay [2016] NSWSC 1820].

Kay

Baker (a Pseudonym) v DPP [2017] VSCA 58 Court of Appeal of Victoria Maxwell P, Tate & Beach JJA Criminal law - interlocutory appeal - applicant, who was 17, asked the complainant, aged 14 years, for nude photos of herself - subsequently they had sexual intercourse - the compliant told a teacher when the applicant threatened to send the nude photograph to other people - the applicant was charged with sexual penetration of a child under 16 (s45(1) Crimes Act 1958 (Vic) and 2 child pornography offences (s70(1) Crimes Act 1958 & s 57A(1) Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (Vic)) - by the time the matters were investigated and charges were laid the applicant had turned 19 - the applicant sought a permanent stay of the proceedings, arguing that he had lost the opportunity to be dealt with by the Children’s Court - the application was refused and he sought leave to appeal that decision (s295 Act 2009 (Vic)) - the applicant relied upon provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’): s25(2)(c) - right to be tried without unreasonable delay; s 17(2) - protection of child’s best interests; s25(3) - right to be tried by procedures that take account of his age and the desirability of promoting rehabilitation; s24(1) - right to a fair hearing - held: it was appropriate for the Charter issues to be ventilated despite the interlocutory nature of the first instance decision, the remedy being sought, a permanent stay, having the ability to resolve the entire proceedings - at common law, when a court is entertaining an application for a permanent stay, the focus is upon whether the continuation of the proceedings could be an abuse of process (Dietrich v The Queen (1992) 177 CLR 292) - the power extends to a consideration of whether something that was done before trial resulted in an accused being deprived of a fair trial (R v Glennon (1992) 173 CLR 592) - the principles have been reviewed in Clark (a pseudonym) v The Queen [2016] VSCA 96 - here, the

Page 6 question was whether the loss of the opportunity to be sentenced in the Children’s Court meant that the continuation of the trial in the County Court would be unfairly and unjustifiably oppressive and constitute an abuse of process - while the right under s17(2) Charter was engaged, there was no breach of the Charter - the judge did not err in refusing to order a permanent stay pursuant to the court’s inherent power to stay the proceedings as being an abuse of process - a permanent stay of a criminal prosecution will only be granted where the continuation of the proceedings would involve unacceptable injustice or unfairness (Clark, [18]-[19]) - there is considerable public interest in ensuring that someone accused of committing criminal offences is dealt with by a court and not given, in effect, an immunity from prosecution - here, the charges were serious and there was considerable public interest in bringing to trial those accused of sexual offences, including offences committed through the use of the internet, especially where the victim was a child [Editor’s note: Maxwell P & Beach JA agreeing with Tate JA. See Human Rights Act 2004 (ACT) ss 11(2) & 22(3) (protection of child’s best interests); 21(1) (right to fair trial); 22(2)(c), 18(4) & 20(3) (right to trial without unreasonable delay)].

Baker (a Pseudonym)

Burgess v The Queen [2017] VSCA 59 Court of Appeal of Victoria Redlich, Santamaria & Ferguson JJA Criminal law - historical sexual offences - applicant, now aged 83 years, charged with sexual offending in 1980s and early 1990s - the complainant was then aged between 9 and 14 years - applicant sentenced to an effective term of 8 years 6 months, NPP 6 years 6 months - applicant had subsequent relevant convictions for 2 charges of indecent act with a child under 16 years - sentencing judge found that applicant had little prospect of being rehabilitated and that need for specific deterrence and protection of the community were only of moderate importance on sentence having regard to his age - general deterrence was, however, important - applicant appealed, arguing sentences manifestly excessive and crushing - held: whether the sentence was manifestly excessive (crushing) - the applicant’s reliance upon Australian Bureau of Statistics in respect of life expectancy of Victorian males aged 82 and 88 was misconceived - such material is not a substitute for evidence about the health and consequent life expectancy of a particular person being sentenced - here, the judge took account of the applicant’s old age - approaching the matter upon the basis that the whole of the sentence must be served, it was a weighty matter that the applicant might die in prison - however, the applicant had not demonstrated that the sentence was manifestly excessive given his advanced age - other grounds of appeal not made out - application for leave to appeal refused.

Burgess

R v MCK [2017] QCA 56 Court of Appeal of Queensland

Page 7 Holmes CJ, Gotterson JA & Ann Lyons J Criminal law - conviction appeal - appellant entered a plea to one count of maintaining an unlawful sexual relationship with a girl under 16 years, aggravated by carnal knowledge of her - applicant had originally been charged with other offences, including rape and sodomy - the other offences were discontinued upon the plea being entered - applicant argued on appeal that he had entered his plea because he was advised by his solicitors that he would not receive a custodial sentence - evidence from appellant’s solicitors and barrister - solicitor and barrister examined - sentenced to 9 years 11 months - held: the real questions were whether, when he pleaded guilty, he either did not appreciate the nature of the charge of maintaining an unlawful relationship or did not make his plea freely and voluntarily as the result of an inducement in the form of unjustifiable advice that he would not face - the court did not accept the appellant’s evidence - court did not accept that he failed to appreciate the nature of the charge of maintaining a sexual relationship - it was more probable that he was prepared to accept the responsibility for the allegation made against him in connection with the maintaining charge once the more damaging allegations of rape and sodomy were withdrawn, in the hope that he might (not would) escape a custodial sentence and that he now regretted his decision - no demonstrated - it was conceded by the Crown that the sentence was manifestly excessive - appellant resentenced 4 years, suspended after 12 months for 5 years [Editor’s note: Gotterson JA & Ann Lyons J agreeing with Holmes CJ].

MCK

R v Bricola [2017] QCA 51 Court of Appeal of Queensland Gotterson & Morrison JJA, Bond J Criminal law - murder - conviction appeal - the Crown case was the appellant had stabbed the deceased with the intention of doing grievous bodily harm to, if not killing, the deceased - the defence case was one of self-defence - on appeal, appellant argued that his character was improperly put into evidence; that the prosecutor’s opening was unfair; that he was deprived of a possible by his counsel’s failure to elicit evidence favourable to his case; and that the judge misdirected the jury on the issue of self-defence - held: (1) the appellant was not measurably prejudiced by the prosecutor’s words; (2) in considering whether the appellant’s character was improperly put into evidence by references to him being aware of police procedures and by the reference to a meeting at a prison - it would have been reasonably clear to the jury that the statement by the police officer meant that the appellant knew that as an operational organisation the police service had procedures which its members were required to follow - it was a matter of common knowledge that that is so and it was unlikely that members of the jury would have taken the statement to mean that the appellant was familiar with specific police procedures because he had been subjected to them in the past - there was no significant prejudice to the appellant and it was significant that both defence counsel and the judge had a similar view - considering the appellant’s reference to the prison, no application to the jury was made and it was important to identify precisely what the disclosure was and what

Page 8 information it conveyed expressly or impliedly (see R v Hally [1962] Qd R 214; R v Genrich [2001] QCA 466) - here, there was no express disclosure of a criminal record but of a location where the appellant and the witness had known each other, and what conclusion a juror reached as to why the appellant was at that location would be based upon a speculative choice made between open inferences - any impression formed as to the nature of any prior offending by the appellant would have been entirely the product of speculation - ground not made out; (3) defence counsel’s failure to elicit favourable evidence - where, on appeal, complaint is made of a failure to call certain evidence, if there could be a reasonable explanation for not calling it, it follows that counsel could have chosen to act in that way without criticism (TKWJ v The Queen (2002) 212 CLR 124, [2]) - at its highest, the evidence in question was inconclusive - no error identified; (4) self-defence - no error identified - appeal dismissed [Editor’s note: Morrison JA and Bond J agreeing with Gotterson JA].

Bricola

Atherley v The State of Western Australia [2017] WASCA 53 Court of Appeal of Western Australia Martin CJ, Buss P, Mazza JA Criminal law - conviction and severity appeals - applicant was deceased’s accountant for 1989 until her death in 2010 and from that date, executor of her will - applicant stole in excess of $1.62 million from deceased and was convicted of 2 counts of stealing and one of perjury - applicant was sentenced to 7 years 6 months and sought leave to appeal both his conviction and sentence - held: argument that the indictment was bad for duplicity as it relied upon a general deficiency arising from multiple transactions, rather than alleging separate counts - count 1 was framed in reliance upon s8(3) of Schedule 1, Criminal Procedure Act 2014 (WA) - the approach was entirely consistent with s44(2) Evidence Act 1906 (WA) - the indictment was not duplicitous - each of the other grounds relied upon were without substance - leave to appeal conviction refused - on the severity appeal, there was a high level of criminality, the applicant having engaged in prolonged and significant dishonesty, abusing a positon of trust - this criminality was compounded by the applicant’s attempts to cover his track by false documents and perjury - his criminal conduct had a significant adverse effect upon the deceased’s beneficiaries - the only mitigating factors were the applicant’s cooperation with police and the prosecution during his trial - the total effective sentence was not disproportionate to the overall criminality involved (Brennan v the State of Western Australia [2010] WASCA 19; The State of Western Australia v Chapman [2012] WASCA 203) - considering the second limb of the totality principle, the sentence was not crushing - each appeal dismissed [Editor’s note: Buss P & Mazza JA agreeing with Martin CJ].

Atherley

The Queen v Adam Filippone [2017] NTSC 67 Supreme Court of the Northern Territory

Page 9 Blokland J Criminal law - hearsay evidence - accused charged with murder, or in the alternative, with one count of assisting Russell, who the accused knew had murdered the deceased, to escape prosecution - 4 Hearsay Notices were served upon the accused, the Crown relying upon s65(2)(c) & (d) Evidence (National Uniform Legislation) Act (NT) (‘UEA’) - both ‘representors’ were deceased and therefore ‘not available’ - held: the onus was upon the Crown to satisfy her requirements for admission under either s65(2)(c) or (d) - s65(c) considerably expands the range of statements that were admissible at common law as part of the res gestae - evidence may be admitted if the representation is made circumstances that make it ‘highly probable’ that it is reliable - the court must consider the circumstances in the relevant sense - it is necessary to consider the circumstances both before and after the making of the representation that bear on the reliability of the representation (Conway v The Queen (2000) 98 FCR 204) - the exceptions to hearsay should be interpreted strictly - ‘relevant circumstances’ mean ‘the circumstances in which the representation was made, its factual setting at the time it was made’ (R v Mankotia [1998] NSWSC 295, 10; Williams v The Queen (2000) 119 A Crim R 490, [53]-[54]) - to satisfy s65(2)(d) the representation must be shown to be against the maker’s interest and to be made ‘in circumstances’ as identified in s65(2)(c) - s65(2)(d)(ii) only requires the characteristic of ‘reliable’ to be met - the High Court held in Sio v the Queen (2015) 249 A Crim R 533 that s65 requires the court to identify each material fact that would be proven by a hearsay statement and to apply the section to the particular statement being considered - this in turn requires that the circumstances of the making of the statement suggest that the representation is likely to be reliable and the facts asserted true - to admit the hearsay the circumstances in which the representation was made must be such that the ‘dangers which the rule seeks to prevent are not present or are negligible in the circumstances’ - for s65(2)(d) the focus is upon the objective circumstances in which the representation was made - the representations are not to be dealt with in a compendious manner - when s65 refers to ‘a representation’ it is referring to a particular representation that asserts a relevant fact that is sought to be proved - each Notice considered and, where appropriate s137 applied - rulings on admissibility made.

Adam Filippone

Page 10 Who Has Seen the Wind? By Christina Rossetti Who has seen the wind? Neither I nor you: But when the leaves hang trembling, The wind is passing through.

Who has seen the wind? Neither you nor I: But when the trees bow down their heads, The wind is passing by.

Click Here to access our Benchmark Search Engine

Page 11

Powered by TCPDF (www.tcpdf.org)