Our lawyers have been involved in many cases of significance in this State. Below are just a few examples of the cases in which we have been involved in recent years. The full Judgments can be accessed via the Australasian Legal Information Institute website (Austlii) by clicking on the case headings:-

CRIMINAL LAW – Referral of questions of law – Misconduct in public office – Common law offence – Elements of offence – Necessary relationship between public office and alleged conduct for purposes of offence – Whether conduct must occur ‘in relation to’ office – Whether public officer must be acting ‘as such’ – How seriousness of misconduct is to be described.

CRIMINAL LAW - Sentencing - Three applications for leave to appeal - Dishonestly obtaining a financial advantage by deception - Co-offenders - Pleas of guilty by all three applicants - Whether sentences manifestly excessive - Whether sufficient discount given for early pleas of guilty - Leave refused to first and second applicants - Whether sufficient weight given to third applicant's mental state at the time of sentence - Whether 'new evidence' admissible as to third applicant's mental state since sentence imposed - Whether sentencing discretion re-opened due to deterioration of third applicant's mental state since sentence imposed - Third application for leave granted, appeal allowed, appellant re-sentenced.

ADMINISTRATIVE LAW – Suppression orders – Magistrates’ Court of Victoria – Relief sought in the nature of certiorari – Whether jurisdictional error – Denial of procedural fairness – Standing of Chief Commissioner to seek orders pursuant to s 126 of the Magistrates’ Court Act 1989 – Magistrates’ Court Act 1989, s 126.

ADMINISTRATIVE LAW – Statutory interpretation– Relevance of s 10(5) of the Witness Protection Act 1991 in an application under s 126 of the Magistrates’ Court Act 1989 – Whether a non-publication order necessary to avoid prejudicing the administration of justice – Witness Protection Act 1991, s 10(5).

CRIMINAL LAW – Hearing before a purported delegate of the Director of Police Integrity – Perjury charges based on answers obtained pursuant to power to examine on oath – Delegation by instrument – No delegation to relevant person as defined – Delegation invalid – Crimes Act 1958 s 314; Police Regulation Act 1958 ss 69, 86NA, 86P, 86PA, 86PB, 86PC, 86PD, 86PE, 86Q, 86QA, 86R, 102A, 102AB, 102B, 102BA, 102C, 102D, 102E, 102F; Evidence Act 1958 ss 3, 18, 100, 110, 111, 151; Interpretation of Legislation Act 1984 ss 35, 42A; Sex Offenders Registration Act 2004 s 66C

ADMINISTRATIVE LAW – Judicial review – Order 56, Supreme Court (General Civil Procedure) Rules 2005.
ADMINISTRATIVE LAW – Jurisdictional error – Police Appeals Board misconstrued the nature of its review function under Division 1 of Part IV of the Police Regulation Act 1958.
ADMINISTRATIVE LAW – Error of law in failing to permit new evidence.
ADMINISTRATIVE LAW – Breach of the rules of natural justice constituted by receiving ex-parte communications.

DEFAMATION – Practice and procedure – Whether words capable of defamatory meanings pleaded in proposed amended Statement of Claim – Whether proposed imputations pleaded with sufficient precision.

CRIMINAL LAW - Acquitted on three counts of Culpable Driving Causing Death – convicted on three counts of dangerous driving causing death – Found to have driven semi-trailer in Burnley tunnel at a speed or in a manner dangerous to the public – Semi-trailer swerved to avoid collision with vehicle stopped in left lane – Failed to pay proper attention to road ahead – Total effective sentence of five years with non-parole period of two years and nine months

  • Dale v DPP [2009] VSCA 212

CRIMINAL LAW - Bail – Appeal – Refusal of bail by Supreme Court judge – Whether appeal lies to Court of Appeal – Fernandez v DPP (2002) 5 VR 374 applied – Supreme Court Act 1986 (Vic) ss 17(2), 17A(4)(b) – Bail Act 1977 (Vic) s 18A.

CRIMINAL LAW – Bail – Murder – Whether exceptional circumstances shown – Long delay before trial – Mental illness caused by harsh prison conditions – Threat to family business – Whether unacceptable risk if released on bail – Burden of proof – Onus on Director to show unacceptable risk – Whether unacceptable risk of interference with witness – Whether risk rendered acceptable by imposition of strict conditions – Bail granted – Bail Act 1977 (Vic) ss 4(2)(a), 4(2)(d), 13

CRIMINAL LAW – Committal Proceeding – Rape – Credibility of Complainant – Committal test – Whether evidence of “sufficient weight” to support conviction – Whether properly instructed jury could convict Defendant – Defendant discharged

JUDICIAL REVIEW – Application to set aside Magistrate’s order permitting publication of part of complainant’s evidence at a committal – Order not inconsistent with s 4 of the Judicial Proceedings Act 1958 – No demonstrated error in exercise of power under s 126(1) of the Magistrates Court Act 1989 – Clause 17, Schedule Five of the Magistrates Court Act 1989

CRIMINAL LAW – Bail – Applicant charged with murder – Whether exceptional circumstances – Likely delay of two years from arrest to trial  – whether strong Crown case – Accused detained in severe circumstances in high security prison – whether unacceptable risk that accused would interfere with witness or otherwise obstruct the course of justice – Bail refused.

SUBMISSIONS on behalf of the Police Association Victoria and its Members - Hearings 11 May 2009 – 6 July 2009: Critical Considerations – 2009/2010 Fire Season. The written submissions can be downloaded here

CRIMINAL LAW – committal proceeding – informant’s applications for orders requiring witnesses to attend for examination – applications refused – refusal not amenable to review in the nature of certiorari - Magistrates’ Court Act 1989 s 56A

CORPORATIONS – Civil penalty proceedings – Application to stay civil proceedings where criminal proceedings reasonably possible – Whether real injustice if proceedings not stayed – Whether criminal proceedings “on the cards” – Whether substantial prejudice to defendants not to stay proceedings – Whether plaintiff’s rights harmed if proceedings stayed – Privilege against self-incrimination – Likelihood of civil proceedings being stayed under s 1317L by criminal proceedings being started - Application of McMahon v Gould line of authorities – Civil penalty proceedings stayed - Sections 180, 181, 184, 189, 206C, 1317E, 1317L, 1317M, 1317N, 1317P, 1317S and 1331 of the Corporations Act 2001 (Cth)

CRIMINAL LAW – Police – Police rights and duties – Offences by and against – Duty not to disclose information – Source and scope of police officer’s duty – Whether disclosure of information in Victoria Police Manual constitutes breach of duty – Police Regulation Act 1958 s 127A – Appeal dismissed

CRIMINAL LAW – Sentencing – Drug Trafficking in a large commercial quantity – Manifest excess – Early plea of guilty – Re-sentenced to nine years’ imprisonment with a non-parole period of six years.

CRIMINAL LAW & PROCEDURE – summons to produce – subpoena decus tecum – issued by accused to police informant – access sought to “unused material” – whether abuse of process – whether fishing – applicable test – whether “on the cards” documents would assist the defence – duty of fairness of prosecutor - duty of prosecutor to disclose – fundamental duty of court to ensure fair trail of accused – application of “reasonable possibility” test – Magistrates’ Court Act 1989, s 43(2).
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JUDICIAL REVIEW – decision of magistrate in committal proceedings – refusal to strike out summons to produce documents issued by accused to police informant – whether error
of law on the face of the record – application dismissed.
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HUMAN RIGHTS – “equality of arms” - equality before the law – right to fair hearing of criminal charges – relevance to duty of prosecutor to disclose – “unused material” – relevance to setting aside summons to produce issued by defence – International Covenant on Civil and Political Rights, arts 14(1) and (3)(b)

PRACTICE AND PROCEDURE – suppression order – whether circumstances exist to prevent publication of defendants’ identity – the use of pseudonyms – s 18 Supreme Court Act

CRIMINAL LAW – Applications for bail – Show cause situation – Delay – Likely effects of delay – Parity with co-offender – Whether unacceptable risk of further offending or endangering public – Applications granted subject to strict bail conditions

CRIMINAL LAW - Assault – Consent – Indecent assault – Whether prosecution bear the onus of proving the defendant was aware the complainant was not consenting or might not be in a case of common assault – s.39 Crimes Act 1958 – s.23 Summary Offences Act 1966

CRIMINAL LAW – Murder – Appeal against conviction – Admissibility of “no comment” answers in record of police interview – Sufficiency of trial judge’s directions in relation to potential misuse of “no-comment” answers – Consciousness of guilt – Adequacy of directions as to consciousness of guilt – Reckless murder – Whether offence of reckless murder should have been left to the jury – Whether directions as to reckless murder erroneous – Distinction between the mental elements of unlawful and dangerous act manslaughter and reckless murder – Necessity of jury directions in relation to accused’s state of mind in accordance with Pemble (1971) 124 CLR 107 – Admissibility of psychiatric evidence – Effect of Gordon v The Queen (1982) 41 ALR 64on the rule in Ramsay v Watson (1961) 108 CLR 642 – Admissions against interest – Admissibility of mixed statements – The rule in Queen Caroline’s Case (1820) 129 ER 976 – Effect of R v McKeown [2006] VSCA 74 on directions as to objective element of provocation – No requirement that the violent manner of the accused’s response be proportionate to the provocation – Appeal allowed – Re-trial ordered.

CRIMINAL LAW – Bail – Serious drug offences – Whether “exceptional circumstances” made out – Whether unacceptable risk – Bail granted

CRIMINAL LAW – Sentence – Acquitted of Attempted Murder - Intentionally causing serious injury by shooting – Causing injury – Pleas of guilty – Delay – Remorse – Good prospects of rehabilitation – Sentence of 8 years with a non-parole period of 5 years

CRIMINAL LAW – Sentence appeal – Negligently causing serious injury – Two counts – New evidence admitted in relation to count 1 as to extent and consequences of injuries at time of sentencing – Appeal allowed on count 1 – Resentenced to total effective sentence of two years’ imprisonment with non-parole period of eight months

CRIMINAL LAW - Sentencing – Armed robbery – Conspiracy to commit armed robbery – Associated offences – Guns used to subdue armed security guards to be robbed of substantial amounts of money –  Participants and/or potential participants as gunman or lookout – Fatal shooting in the course of one armed robbery – participation in conspiracies to commit further armed robberies after the fatal shooting – multiple mitigating factors leading to very substantial sentencing discounts – pleading guilty – providing evidence of their own involvement – providing co-operation as to the involvement of others – undertaking to give evidence against others

ADMINISTRATIVE LAW – judicial review – decision by Chief Commissioner of Police to dismiss officers – ultra vires – procedural fairness – apprehension of bias – relevant considerations

CRIMINAL LAW – Sentencing – Trafficking in commercial quantity of drug of dependence, pseudoephedrine, 3 kg., approx – Appellant transferred to Victoria for sentencing from interstate prison, where undergoing sentence for five years’ imprisonment for manufacturing methylamphetamine within same period as Victorian offence – Interstate offence deemed to have been imposed in Victoria – Commencement date of interstate offence deemed to have been imposed by a Victorian Court – Sentence by Victorian judge of four years’ imprisonment on trafficking count and sentences for other counts to be served concurrently – Victorian sentence ordered to be served cumulatively on interstate sentence, producing total effective sentence of nine years’ imprisonment, with new non-parole period of five years and three months’ – Sentence held manifestly excessive – Principle in Mill v. R. (1988) 166 C.L.R 59 – Sentence of three years’ imprisonment on trafficking count substituted, with twelve months cumulative on interstate sentence – Total effective sentence of six years - New non-parole period fixed of four years

CRIMINAL LAW – Sentencing – Director’s appeal – Culpable driving causing death – Alcohol and fatigue – Exceptional circumstances – Respondent overseas national on short visit and for lawful purposes – Appeal dismissed