The following changes have been incorporated into this update:
[1-0410] Court Suppression and Non-publication Orders Act 2010
In relation to a suppression or non-publication order being “necessary”, the correct approach to the interpretation of s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 is the “calculus of risk” approach, which requires the nature, imminence and degree of likelihood of harm to the relevant person when determining whether an order is necessary to protect the safety of the person: AB (A pseudonym) v R (No 3) (2019) 97 NSWLR 1046 at –; Darren Brown (a pseudonym) v R (No 2)  NSWCCA 69 at –, –. Safety in s 8(1)(c) is not confined to physical safety but is apt to include psychological safety.
It is noted that an Addendum to the Recommended National Standards for Working with Interpreters in Courts and Tribunals has been published.
[4-0625] Exception: Aboriginal and Torres Strait Islander traditional laws and customs — s 78A
Reference to the case of Re: Estate Jerrard, Deceased (2018) 97 NSWLR 1106 has been added.
[4-0630] Exception: opinions based on specialised knowledge — s 79(1)
Cases regarding specialised knowledge based on “training, study or experience” have been added:
In Hawkesbury Sports Council v Martin  NSWCA 76, the primary judge erred in admitting expert opinion evidence for the respondent as to matters of visual perception and vision science: at . The expert’s report did not explain how his opinions, based on “specialised knowledge”, in turn based on his “training, study or experience” and on which the opinion is “wholly or substantially based”, applied to the facts assumed or observed so as to produce the opinion propounded as required by s 79 Evidence Act 1995: at ; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at .
A police detective may have “the training and experience [placing] him in a position of having knowledge as to the effects on concrete of burning accelerants beyond that of a person lacking that training and experience”: Davies v R VSCA 66 at .
Failure to demonstrate that an opinion is based on a witness’s specialised knowledge based on his or her training, study or experience goes to the admissibility of the evidence, not its weight: Nicholls & Ors v Michael Wilson & Partners Ltd  NSWCA 383 at .
[4-1010] Applications of ss 91-93
In proceedings seeking an order that the solicitor should pay the costs that were ordered against his client, s 91 of the Evidence Act 1995 (NSW) does not prevent a court, exercising the jurisdiction conferred by s 99 of the Civil Procedure Act 2005 (NSW), from having regard to findings in its principal judgment: King v Muriniti (2018) 97 NSWLR 991. An application for special leave to appeal to the High Court was refused:  HCASL 390.
[4-1270] Persons with specialised knowledge — s 108C
Two Victorian cases, MA v R (2013) 40 VR 564 and De Silva v DPP (2013) 236 A Crim R 214 have been added. It was stated in De Silva that the purpose of such evidence is “educative” in order to impart specialised knowledge the jury may not otherwise have, to help the jury understand the evidence of and about the complainant, and so as therefore to be better able to evaluate it.
[5-6000] Concurrent evidence
It is noted that concurrent and consecutive expert evidence in criminal trials is dealt with by s 275C of the Criminal Procedure Act 1986.
[5-7120] Malicious prosecution
Perera v Genworth Financial Mortgage Insurance Pty Ltd  NSWCA 10 has been added at [5-7130], in which an appeal against the dismissal of an action for malicious prosecution in civil proceedings was refused. Although Perera referred to A v State of NSW (2007) 230 CLR 500 as leaving “open the possibility that the tort applied in relation to proceedings other than criminal proceedings”, it nevertheless required that those proceedings have been brought by the plaintiff against the defendant.
[7-0050] Pecuniary losses
Amaca Pty Ltd v Latz (2018) 92 ALJR 597 has been added. It was held by majority that the inclusion of superannuation pension “losses” in a claim for damages were compensable, however age pension losses were not. By majority, the court considered that superannuation benefits are a “capital asset”, which has a present value, and which can be quantified. The age pension however is neither a part of remuneration, nor a capital asset. It is not a result of, or intrinsically connected to, a person’s capacity to earn and no sum should be allowed on account of the age pension in the calculation of damages for the respondent’s personal injuries.