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NCAT Appeal Panel | 2014-04-09
Tenants were terminated for non-payment of rent following an uncontested hearing where the landlord's agent gave evidence and the Member recorded findings in hearing notes. The tenants sought leave to internally appeal under s 80(2)(b) but did not raise any question of law; therefore leave required. Clause 12 Schedule 4 requires showing the appellant 'may have suffered a substantial miscarriage of justice' because the decision was unfair, against the weight of evidence, or there is significant new evidence. The tenants relied on phone logs and asserted contact and willingness to pay. The Appeal Panel found the record disclosed arrears and necessary findings, the phone logs were not fresh or persuasive, and there was no denial of procedural fairness. Leave was refused, the appeal dismissed, and the stay of the original orders lifted.
1,627 case citations
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Before: Taylor J
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Before: Burns J
Before: Brownhill J
Before: Jones JJ
The High Court majority restored AR's convictions. It held that a tendency may be supported by evidence of the charged acts and that this use of evidence is not inherently circular. A judge should ordinarily avoid asking jurors to make findings about charged conduct during the tendency inquiry, because that can create confusion about proof beyond reasonable doubt. But a departure from that preferred approach is not automatically a miscarriage of justice. The whole summing up must be examined. Here, repeated and explicit directions about the criminal standard meant that the majority found no real risk the jury had misunderstood it. Three Justices dissented, considering that the particular tendency and directions created an inadequately addressed risk of burden-of-proof confusion.
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