September 2011 Updates

Subtitle 11.8 Appeals

Updated by Danielle Andrewartha, Consultant, McPhee Andrewartha

This Subtitle closely examines the procedural aspects of criminal appeals against conviction and sentence. It considers rights of appeal as arising for prosecution and defence, as well as the powers of courts of appeal. The processes of criminal appeals in each jurisdiction are outlined. The updated material reflects important legislative changes, including Acts such as Criminal Rules 2006 (Tas); Criminal Procedure Act 2009 (Vic); Supreme Court (Court of Appeal) Rules 2005 (WA). Further, this Subtitle briefly considers the use of petitions of mercy and pardon as a final means of redress.

Subtitle 16.1 General Principles of Evidence

Updated by Professor Mirko Bagaric, School of Law, Deakin University

This Subtitle update deals with the changes in the law that have occurred as a result of the Uniform Evidence Acts being adopted in four jurisdictions within Australia. The update also sets out the current plans of adopting uniform legislation in other jurisdictions and includes a number of recent case authorities decided under the uniform legislation.

Subtitle 16.2 Proof in Civil Cases

Updated by Professor Mirko Bagaric, School of Law, Deakin University

This Subtitle explains the often misapplied distinction between the nature and application of burdens of proof and the standard of proof in civil actions, including where there is a direct verdict or no case submission. The effect of legislative intent, presumptions and commonly occurring inferences of fact on the allocation of burdens is also discussed. This update references recent developments under the Uniform Evidence Act regime (ie Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Bill 2011 (NT)) and includes updated commentary on recent authorities such as Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 74 ALJR 743; 170 ALR 594; [2000] Aust Torts Reports 81-553; [2000] HCA 18; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition & Consumer Commn (2007) 162 FCR 466; 242 ALR 643; [2007] ATPR 42-177; [2007] FCAFC 132.

October 2011 planned updates

(Subtitles subject to change):

• 5 Civil Procedure 5.10 “Limitation of Actions”
• 17 Family Law 17.9 “Adoption of Children”
• 35 Unfair Dealing 35.5 “Notion of Unconscionability”
• 35 Unfair Dealing 35.6 “Estoppel”
• 35 Unfair Dealing 35.7 “Duress”
• 35 Unfair Dealing 35.8 “Undue Influence”