Abuse of Discretion

A failure to take into proper consideration the facts and law relating to a particular matter; an Arbitrary or unreasonable departure from precedent and settled judicial custom.

Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal. It does not, however, necessarily amount to bad faith, intentional wrong, or misconduct by the trial judge.

For example, the traditional standard of appellate review for evidence-related questions arising during trial is the "abuse of discretion" standard. Most judicial determinations are made based on evidence introduced at legal proceedings. Evidence may consist of oral testimony, written testimony, videotapes and sound recordings, documentary evidence such as exhibits and business records, and a host of other materials, including voice exemplars, handwriting samples, and blood tests.

Before such materials may be introduced into the record at a legal proceeding, the trial court must determine that they satisfy certain criteria governing the admissibility of evidence. At a minimum, the court must find that the evidence offered is relevant to the legal proceedings. Evidence that bears on a factual or legal issue at stake in a controversy is considered relevant evidence.

The relevancy of evidence is typically measured by its probative value. Evidence is generally deemed Probative if it has a tendency to make the existence of any material fact more or less probable. Evidence that a murder defendant ate spaghetti on the day of the murder might be relevant at trial if spaghetti sauce was found at the murder scene. Otherwise such evidence would probably be deemed irrelevant and could be excluded from trial if opposing counsel made the proper objection.

During many civil and criminal trials, judges rule on hundreds of evidentiary objections lodged by both parties. These rulings are normally snap judgments made in the heat of battle. Courts must make these decisions quickly to keep the proceedings moving on schedule. For this reason, judges are given wide latitude in making evidentiary rulings and will not be over-turned on appeal unless the appellate court finds that the trial judge abused his or her discretion.

For example, in a Negligence case, a state appellate court ruled that the trial court did not abuse its discretion by admitting into evidence a posed accident-scene photograph, even though the photograph depicted a model pedestrian blindly walking into the path of the driver's vehicle with the pedestrian's head pointed straight ahead as if she was totally oblivious to the vehicle and other traffic. Gorman v. Hunt, 19 S.W.3d 662 (Ky. 2000). In upholding the trial court's decision to admit the evidence, the appellate court observed that the photograph was only used to show the pedestrian's position relative to the vehicle at the time of impact and not to blame the pedestrian for being negligent. The appellate court also noted that the lawyer objecting to the photograph's admissibility was free to remind the jury of its limited relevance during cross-examination and closing arguments.

An appellate court would find that a trial court abused its discretion, however, if it admitted into evidence a photograph without proof that it was authentic. Apter v. Ross, 781 N.E.2d 744 (Ind.App. 2003). A photograph's authenticity may be established by a witness's personal observations that the photograph accurately depicts what it purports to depict at the time the photograph was taken. Ordinarily the photographer who took the picture is in the best position to provide such testimony.

Further readings

Cohen, Ruth Bryna. 2000."Superior Court Affirms Non Pros for Failure to Subpoena Own Witness; Trial Court Did not Abuse Discretion in Its Application of Civil Procedure Rule 216." Pennsylvania Law Weekly (October 9).

Hamblett, Mark. 2001. "Circuit Panel Issues Recusal Guidelines; Says Rakoff Acted Properly In Not Stepping Down." New York Law Journal (February 26).

Riccardi, Michael A. 2002."Polygraph Evidence OK to Prove Probable Cause, Circuit Judges Say; No Abuse of Discretion in Relying on 'Lie Detector' for Limited Purpose." Pennsylvania Law Weekly (April 29).

Cross-references

Appeal; Bad Faith; Error; Evidence; Precedent; Probative; Relevancy.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

Ads by Google

Defamation Lawyer
Experienced Defamation Specialists 28 years experience in defamation
australian-defamation-lawyers.com.au

Reply to the Australian Government Solicitors



To
David Nguyen
Australian Government Solicitors
MLC Cente
Martin Place 2000

Dear Mr Nguyen
I respond to your letter dated 17th December 2013 where you intend to set my subpoena aside once again.
As I believe you must be of some intelligence I would recommend that you read the statements provided to the Australian Federal Police by Veronique Ingram , Adam Toma, Mathew Osborne Mark Findlay and Cheryl Cullen and you may come to your own ( even if it is limited ) conclusion why AFSA wants this subpoena set aside. Therefore it is the intention of the Australian Government Solicitor and AFSA to protect systemic corrupt conduct and I understand you are again asking a court and magistrate to comply with your request.

You also may feel obliged to inform your "ÇLIENTS'' of the consequences of perjury and the requirements of the Australian Public Service Code of conduct..........................
and may also feel obliged to inform Veronique Ingram of her obligation as a Government Agency Head and the responsibility this carries.
You are also aware I am not obligated in informing you how I intend to use the documents I have subpoenaed to use in my defence however you are clearly aware it relates to the systemic failure of senior Management at AFSA.
Thank You
Fiona Brown

Anyone wanting to testify against Veronique Ingram/ AFSA

If you have had difficulties with shonky Veronique Ingram Inspector General in Bankruptcy and  the systemic corrupt conduct this bitch is protecting at  the Australian Financial Security Authority or the old ITSA come and testify against  against her at the Downing Centre in Sydney...
Email me fionabrown01@hotmail.com if interested*****************

 Complaints about AFSA/ ITSA/ Veronique Ingram / Matthew Osborne/ Mark Findlay
If you have  had problems with ITSA / AFSA and would like to have the matter heard before a magistrate in a court of Law please contact me
fionabrown01@hotmail.com
and have your say in court.
This matter is to expose systemic corrupt conduct and corruption!!!!
Particularly if you   have had dealings with any of the following.....
Veronique Ingram, shonkey Inspector General in Bankruptcy
Adam Toma EX corrupt National Enforcement Manager
Matthew Osborne principal Legal Officer providing corrupt legal Advice to Trustees
Mark Findlay 
Gavin McCosker
Cheryl Cullen
Florence Choo 
Guilia Inga
Also anyone who has experience difficulty with Tibor Karolyi who originally worked for ITSA/ AFSA and now works for  de Vries Tayeh

Search Warrants/ when search warrants can be issued

Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

---

CRIMES ACT 1914 - SECT 3E

When search warrants can be issued

             (1)  An issuing officer may issue a warrant to search premises if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there will be within the next 72 hours, any evidential material at the premises.

             (2)  An issuing officer may issue a warrant authorising an ordinary search or a frisk search of a person if the officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that the person has in his or her possession, or will within the next 72 hours have in his or her possession, any evidential material.

             (3)  If the person applying for the warrant suspects that, in executing the warrant, it will be necessary to use firearms, the person must state that suspicion, and the grounds for that suspicion, in the information.

             (4)  If the person applying for the warrant is a member or special member of the Australian Federal Police and has, at any time previously, applied for a warrant relating to the same person or premises the person must state particulars of those applications and their outcome in the information.

             (5)  If an issuing officer issues a warrant, the officer is to state in the warrant:

                     (a)  the offence to which the warrant relates; and

                     (b)  a description of the premises to which the warrant relates or the name or description of the person to whom it relates; and

                     (c)  the kinds of evidential material that are to be searched for under the warrant; and

                     (d)  the name of the constable who, unless he or she inserts the name of another constable in the warrant, is to be responsible for executing the warrant; and

                     (e)  the time at which the warrant expires (see subsection (5A)); and

                      (f)  whether the warrant may be executed at any time or only during particular hours.

          (5A)  The time stated in the warrant under paragraph 3E(5)(e) as the time at which the warrant expires must be a time that is not later than the end of the seventh day after the day on which the warrant is issued.

Example:    If a warrant is issued at 3 pm on a Monday, the expiry time specified must not be later than midnight on Monday in the following week.

             (6)  The issuing officer is also to state, in a warrant in relation to premises:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found at the premises in the course of the search that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  whether the warrant authorises an ordinary search or a frisk search of a person who is at or near the premises when the warrant is executed if the executing officer or a constable assisting suspects on reasonable grounds that the person has any evidential material or seizable items in his or her possession.

             (7)  The issuing officer is also to state, in a warrant in relation to a person:

                     (a)  that the warrant authorises the seizure of a thing (other than evidential material of the kind referred to in paragraph (5)(c)) found, in the course of the search, on or in the possession of the person or in a recently used conveyance, being a thing that the executing officer or a constable assisting believes on reasonable grounds to be:

                              (i)  evidential material in relation to an offence to which the warrant relates; or

                             (ii)  a thing relevant to another offence that is an indictable offence; or

                            (iii)  evidential material (within the meaning of the Proceeds of Crime Act 2002 ) or tainted property (within the meaning of that Act);

                            if the executing officer or a constable assisting believes on reasonable grounds that seizure of the thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence; and

                     (b)  the kind of search of a person that the warrant authorises.

             (8)  Paragraph (5)(e) and subsection (5A) do not prevent the issue of successive warrants in relation to the same premises or person.

             (9)  If the application for the warrant is made under section 3R, this section (other than subsection (5A)) applies as if:

                     (a)  subsections (1) and (2) referred to 48 hours rather than 72 hours; and

                     (b)  paragraph (5)(e) required the issuing officer to state in the warrant the period for which the warrant is to remain in force, which must not be more than 48 hours.

           (10)  An issuing officer in New South Wales or the Australian Capital Territory may issue a warrant in relation to premises or a person in the Jervis Bay Territory.

           (11)  An issuing officer in a State or internal Territory may:

                     (a)  issue a warrant in relation to premises or a person in that State or Territory; or

                     (b)  issue a warrant in relation to premises or a person in an external Territory; or

                     (c)  issue a warrant in relation to premises or a person in another State or internal Territory (including the Jervis Bay Territory) if he or she is satisfied that there are special circumstances that make the issue of the warrant appropriate; or

                     (d)  issue a warrant in relation to a person wherever the person is in Australia or in an external Territory if he or she is satisfied that it is not possible to predict where the person may be.

---

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback

  Bernard Collaery./ East Timor
IT is not too hard to look ahead and see who is going to have the last laugh on this one!!!!!!!!!!!!!
It is a requirement that material seized in a search warrant must be used in a ciminal case in a court of Law.
By the shonky George Brandis ordering  a raid on the Offices and home of Bernard Collaery  a solicitor who only was  representing East  Timor Government in the Hague  and exposing corrupt Federal Government spy agencies  the matter is required to proceed to court.
Looks like it will provide great entertainment for all when the shonky  " spies "are exposed.
Clearly   search warrants are the preferred method of intimidation for Government Agencies who are attempting to protect Corrupt Conduct  and corruption!!!



ASIO officers have allegedly detained a man and raided the office of a lawyer who claims that Australian spies bugged the cabinet room of East Timor's government during negotiations over oil and gas deposits.
Attorney-General George Brandis confirmed last night that he had issued a search warrant for a Canberra address and that ASIO had executed it, seizing a number of documents "on the grounds that [they] contained intelligence related to security matters".

Office raided: Bernard Collaery. Photo: Supplied

The current director general of ASIO, David Irvine, was head of ASIS when the alleged bugging operation against East Timor took place.

Advertisement

Lawyer Bernard Collaery is representing the East Timorese government in the Hague as it seeks arbitration over a treaty it signed with Australia over the lucrative deposits, which it has since declared invalid.
East Timor, also known as Timor Leste, will tender evidence of the eavesdropping as part of its case.
Mr Collaery, who has just arrived in the Hague, told Fairfax Media the raids were a "disgrace". He said the man ASIO had detained in Australia was a whistleblower who had led the Australian Secret Intelligence Serice operation to bug the cabinet room in East Timor.
"How dare they," Mr Collaery said. "These tactics are designed to intimidate the witness and others from coming forward. It's designed to cover up an illegal operation in 2004 by ASIS."
But Mr Brandis said the allegation that the raid was intended to affect or impede the arbitration at The Hague was wrong.
"I have instructed ASIO that the material taken into possession is not under any circumstances to be communicated to those conducting those proceedings on behalf of Australia," he said.
Prime Minister Tony Abbott said: ''We don't interfere in cases, but we always act to ensure that our national security is being properly upheld.''
''That's what we're doing.''
The Greens on Wednesday called on Senator Brandis to give a full explanation as to why he authorised raids, with Greens MP Adam Bandt saying he was disturbed by the news.
''If it is true it seems that George Brandis seems to think he's J. Edgar Hoover and is able to throw warrants around like confetti,'' Mr Bandt said.
Senator Brandis needed to give a ''full explanation'' for the raids, he said.
Labor frontbencher Richard Marles cautioned all those ''who have been in government and those who are in government'' not to comment on the raids, saying it would undermine Australia's national security.
''It doesn't help anyone to be walking down the path of pulling apart and commenting on these intelligence matters,'' he told Sky News on Wednesday.
But his Labor colleague Kelvin Thomson said he was troubled by both the spying allegations and Wednesday's ASIO raids, questioning how East Timor could be considered a national security threat.
East Timor alleges that former foreign minister Alexander Downer dispatched a team of ASIS officers to East Timor's capital, Dili, to bug the government's cabinet room and Prime Minister's office in 2004.
The alleged incursion was a breach of international law and Timorese sovereignty, Mr Collaery added. It was not properly authorised and amounted to a criminal conspiracy.
At the time of the alleged ASIS operation, the two countries were negotiating a treaty covering the Greater Sunrise oil and gas deposits, worth many billions of dollars and the fledgling country's major source of revenue.
Mr Collaery told Fairfax Media the whisteblower had been in charge of the operation for ASIS.
"We have irrefutable evidence from the person who was in charge of the operation," he said. "This is not a maverick whistleblower like Edward Snowden."
Mr Collarey added he had the evidence of eavesdropping with him in the Hague.
He said his office in Canberra was raided by two men who identified themselves as ASIO agents but refused to show their search warrant, citing national security.
The officers, he said, seized documents and electronic files.
Mr Collaery, a former ACT attorney-general, said he had been unable to contact the whistleblower but believed he was still being detained at his house and questioned late Tuesday.
ASIO declined to comment.
Mr Collaery said the alleged ASIO action was unprecedented, but would not derail his case.
The negotiations over the Greater Sunrise were tense and Mr Downer was eventually forced to give East Timor a greater share of the deposits after public outrage here and in East Timor.
But resentment lingered in East Timor that it had come off second best.
As it sought to renegotiate the treaty, the East Timorese government informed then prime minister Julia Gillard of the alleged bugging by ASIS.
"We offered Gillard the opportunity to tear the treaty up and renegotiate it, but she refused," Mr Collarey said.
After her refusal to do so earlier this year, East Timor went public with the espionage allegations, declared the treaty – formally known as the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS) – invalid and took it to The Hague for arbitration.
.collaery-over-east-timor-spy-claim-20131203-2yoxq.html#ixzz2mTnNWeMl

Veronique Ingram , Adam Toma, Mark Findlay Matthew Osborne, Adam Toma Gavin McCosker/ Cheryl Cullen ITSA/ AFSA

Anyone who wishes to give evidence against any of the shonky senior Management of ITSA/ AFSA   named above please contact me.
 The trial will go ahead   sometime next year and I have asked the magistrate for 3 to 4 week with all of the above lining up to be cross examined.
If this shonky Government Agency has fucked you over  have your say and give evidence in court.
Although Senator Williams has a half hearted attempt at ITSA/ AFSA it clearly appears that it will be left to me to expose  systemic Corrupt conduct in this Government Department.
Contact me fionabrown01@hotmail.com and get in the list to expose them!!!!!!!!!!!!!....
Should be great entertainment for those  who enjoy seeing shonky Public Servants  squirm........................
 and what will become of the Corrupt Adam Toma who was National Manager Enforcement ITSA and slipped out the back door and thought he was going to make a fresh start at Victoria Commission Gaming and Liquor Regulation....... this is a message for you...... you can run but you can't hide from me......... see you in Court!!!!!!!!!!!!!!!!!!!!!!!!!!!!!