Tony Hargreaves & Partners has been involved in many cases of significance in Victoria. Some examples of the cases in which we have acted are listed below. Where available, the full Judgment can be accessed via AUSTLII or the relevant Court website by clicking on the link in the case heading:
JUDGMENTS
CRIMINAL LAW – Contravention of family violence intervention order contrary to s 123(2) of the Family Violence Protection Act 2008 – Whether offence is one of strict liability – Defence of honest and reasonable mistake of fact – Charges dismissed.
CRIMINAL LAW– Appeal – Sentence – Crown appeal – Recklessly cause serious injury, sexual penetration of stepchild – Plea of guilty – Sentenced to 4 years’ imprisonment with non-parole period of 1 year – Whether sentence manifestly inadequate – Whether proportionate to objective gravity – Extremely serious offending – Victim aged 5 – Respondent was carer – Life-threatening injuries – Grave breach of trust – Powerful mitigating factors – Background of disadvantage, violence, sexual abuse – Moral culpability substantially reduced, general deterrence substantially moderated – Discretion of mercy exercised – Exceptional circumstances – More severe sentence not required – Appeal dismissed – Bugmy v The Queen (2013) 249 CLR 571, Munda v The Queen (2013) 249 CLR 600, DPP v Miceli [1997] VSC 22; (1997) 94 A Crim R 327 applied.
CRIMINAL LAW- Appeal – Conviction – Recklessly causing injury – Miscarriage of justice – Failure to disclose relevant information – Fresh evidence available since conviction – Prior inconsistent account – Appeal allowed – Whether new trial ordered or judgment of acquittal entered – Criminal Procedure Act 2009 s 277 – Difficulties associated with retrial – Admissibility of evidence of prior acquittals – Judgment of acquittal entered
JUDICIAL REVIEW– Validity of a charge – Whether failure to provide adequate particulars in a charge – Charge of accessing ‘police information’ without reasonable excuse – Order 56 – Certiorari to quash decision of Magistrate dismissing application to invalidate charge – Declaration sought that charge is invalid – Invalidity established – Criminal Procedure Act 2009 (Vic) Sch 1, Cc 1-3 – Victoria Police Act 2013 (Vic) s 227(1) – Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 considered – Southgate Management Ltd v Nitschke [2018] VSC 236 discussed.
FAMILY VIOLENCE INTERVENTION ORDER- Appeal - costs – whether exceptional circumstances exist – meaning of exceptional circumstances - Family Violence Protection Act 2008 - Stevens v Baxter [2009] VSC 257; Quinlivan v Spectrum Imaging Pty Ltd [2015] FWC 4750; Douglas v Dole & Ors [2019] NTSC 80
CRIMINAL LAW- Appeal - Sentence - Attempt to procure child for act of sexual penetration (Charge 1) - Misconduct in public office (Charge 2) - Crimes Act 1958 s 58(3) and 321M - Guilty plea - Sentenced to 10 months’ imprisonment and Community Correction Order - Sentencing judge erred as to the maximum sentence applicable on Charge 1 - Appeal allowed in part - Applicant resentenced to 190 days imprisonment.
CRIMINAL LAW – Appeal – Police officer convicted of common assault and attempting to pervert the course of justice – Whether common assault an alternative to intentionally causing injury – Whether prosecution improperly split its case – Whether judge’s comments on facts occasioned a substantial miscarriage of justice – Whether conviction for attempting to pervert the course of justice inconsistent with acquittals for perjury – Appeal allowed – Judgment of acquittal entered.
CRIMINAL LAW – Appeal – Sentence -Applicant pleaded guilty to persistent sexual abuse of child under 16 – Crimes Act s 47A – Complainant aged between 6 and 8 at time of offending – Complainant offender’s biological daughter – Whether sentencing judge erred in finding methamphetamine use was aggravating feature – Whether judge erred in holding DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 called for uplift in sentences for persistent sexual abuse of child – Appeal allowed – Sentence reduced to 9 years’ imprisonment with non-parole period of 6 years – DPP v Dalgliesh (a Pseudonym)[2016] VSCA 148 considered
CRIMINAL LAW – Appeal – Sentence – Appellant sentenced to 13 years and six months’ imprisonment with a non-parole period of eight years on five charges of rape and one of sexual assault – Whether sentence manifestly excessive – Whether sentencing judge properly balanced s 6Eof the Sentencing Act 1991 against principle of totality and ‘one episode’ rule – New evidence – Whether certainty, as distinct from likelihood that appellant would be deported at the expiration of his sentence, made his incarceration more burdensome than sentencing judge appreciated – Appeal allowed – Sentence reduced to nine years and six months’ imprisonment with non-parole period of six years and six months.
STATUTORY INTERPRETATION – Accrued rights – Whether plaintiff accrued right to bring application under repealed provision of Coroners Act 1985 – Whether contrary intention expressly appears – No accrued right to bring application – Contrary intention appears – Coroners Act 1985 s.59 – Coroners Act 2008 s.123(2), sch 1 – Interpretation of Legislation Act 1984 s.14(2).
CRIMINAL LAW — Appeal — Conviction — Sexual penetration of and indecent acts with a child under 16 — Other misconduct evidence — Text messages sent between appellant and complainant — Failure of trial judge to give anti-propensity warning — Whether substantial miscarriage of justice resulted — Appeal allowed — Jury Directions Act 2015 ss 16, 29.
CRIMINAL LAW – Sentence – Application for leave to appeal – Found guilty by jury of five charges of rape and one charge of sexual assault – Total effective sentence of 13 years and 6 months’ imprisonment – Non-parole period of 8 years – Whether manifestly excessive – Whether sufficient regard had to offences occurring in single incident – Serious sexual offender – Totality – Sentencing Act 1991, s 6D(a), s 6E – Leave to appeal granted.
PROCEEDS OF CRIME – Order for examination – Principles to be applied in exercising discretion to make an order for examination discussed – Whether examination is for a substantially collateral purpose?
COMPULSORY EXAMINATION OF SUSPECT – Non-disclosure of compulsorily acquired material – Principles of statutory interpretation and principles of non-disclosure in relation to compulsory examinations discussed – Risk of prejudice to a fair trial – Should a non-disclosure order be made with respect to the examination of the person suspected of (but not charged with) a criminal offence?
COMPULSORY EXAMINATION OF NON-SUSPECT – Use of material compulsorily acquired from a third party in the prosecution of another person – Should a non-disclosure order be made with respect to the examination of the person not suspected of a criminal offence – Do the fundamental principle and companion rule protect an accused person from the use of material compulsorily acquired from a third party? – Proceeds of Crime Act 2002 (Cth) s 266A considered.
DEFAMATION – Internet page – Whether sufficient evidence for inference of publication to unknown individuals – Whether damages excessive given scope of publication – Leave to appeal refused.
DEFAMATION – assessment of damages following verdict of jury for plaintiff – publication of defamatory statements on defendant’s Internet website – plaintiff one of four police officers involved in death by shooting of boy aged 15 years – coronial inquiry exonerated plaintiff of personal responsibility – defendant stated (among other things) that plaintiff had ‘executed’ the boy and ‘gunned [him] down … like he was a monster and a dangerous mongrel dog’ – very grave defamations about serving police officer – no mitigating circumstances – plaintiff feels intense distress, humiliation and embarrassment – scope of publication not large - importance of vindication (nailing the lie) – aggravated damages – whether defendant’s failure to apologise and retract and conduct of his defence improper and unjustified – requirement for amount of damages to bear appropriate and rational relationship to harm sustained by plaintiff – Defamation Act 2005 (Vic) s.34 .
DEFAMATION – Internet website – trial by jury – defendant’s application of no case to answer – whether website pages had been published inside limitation period – whether statements in pages had been communicated to and comprehended by at least one person other than plaintiff – inferring publication in Internet cases – evidence that subject of alleged defamation was matter of substantial public controversy and that searches on standard search engine listed defendant’s website very highly – whether evidence, if accepted by jury, could properly support inference of publication to unidentified persons – other evidence of publication to one person (other than plaintiff) inside limitation period – person had previously read statements outside that period – whether one publication or two – whether, by maintaining website, defendant engaged in continuing act of publication to all persons, including previous readers – Defamation Act 2005 (Vic) s.7(2) – Limitation of Actions Act 1958 (Vic)s.5(1AAA) .
CRIMINAL LAW – Sentence – Sexual offences – Sexual penetration of child under 16 – Combined sentence of 20 months’ imprisonment and CCO of 2 years’ duration – Offender’s previous good character – Breach of trust an aggravating circumstance – Reduction in mitigatory weight of good character constituted double punishment – Extra-curial punishment – Sentence of imprisonment reduced to 18 months – CCO to NSW – Transfer of Community-Based Sentences (Transfer) Act 2012– Unpaid community work unable to be transferred – Condition removed – Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; CMG v The Queen (2013) 46 VR 728; Bishop v The Queen [2013] VSCA 273; (2013) 39 VR 642; SD v The Queen (2013) 39 VR 487; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 considered.
ADMINISTRATIVE LAW – Application for leave to appeal by Chief Commissioner – Judicial review of decision of Police Registration and Services Board – Board required to have regard to the public interest – Whether Board failed to take public interest into account – No obligation to provide reasons in statute – Statement made as to basis for determination – Examination of transcript and determination together – Whether inference that public interest not taken into account should be drawn – Application for leave granted – Appeal dismissed – Police Regulation Act 1958 ss 86AM, 86AN
ADMINISTRATIVE LAW – Application for leave to appeal by Chief Commissioner – Judicial review of decision of Police Registration and Services Board – Board required to have regard to the public interest – Whether Board failed to take public interest into account – No obligation to provide reasons in statute – Statement made as to basis for determination – Examination of transcript and determination together – Whether inference that public interest not taken into account should be drawn – Application for leave granted – Appeal dismissed – Police Regulation Act 1958 s.86AM
ADMINISTRATIVE LAW - REVIEW – Private Security Act 2004 (Vic), section 25 - application for a security licence refused by Chief Commissioner of Police – application for review of decision – whether the applicant is not a fit and proper person to hold a licence – whether it would not be in the public interest to grant a licence.
CRIMINAL LAW – Sentence – Dangerous driving causing death – Accused operating domestic commercial sightseeing vessel on Port Phillip Bay – Deceased killed when struck by vessel’s propeller after jumping into water while vessel reversing – Deceased’s actions contrary to earlier instruction of crew member – Accused not aware deceased in water when reversing – Low moral culpability – Plea of guilty following sentence indication – Remorse – No prior convictions – Positively good character – No risk of re-offending – Excellent prospects of rehabilitation – Particular hardship of imprisonment for accused – Unusual offence – General deterrence, denunciation and just punishment of less weight than usual – Specific deterrence and protection of community of no weight – Rehabilitation important – Imprisonment inappropriate – Sentenced to a community correction order for 18 months – Whether order can be made in respect of marine licence – No power to make order – Marine Safety Act 2010 (Vic), ss 3, 4A, 4B, 53, 54 & 171 – Marine Safety (Domestic Commercial Vessel) National Law (Cth), ss 6 & 7
ADMINISTRATIVE LAW – Judicial review of a decision by the Police Registration and Services Board – Did the Board fail to take a relevant consideration into account? – Public interest – Police Regulation Act 1958 (Vic) ss 70, 71, 76, 86AH, 86AL, 86AM, 86AN, 86AR, 86AQ
ADMINISTRATIVE LAW – Judicial review of a decision by the Police Registration and Services Board – Did the Board fail to take a relevant consideration into account? – Public interest – Police Regulation Act 1958 (Vic) ss 80, 86AH, 86AL, 86AM, 86AN, 86AR, 86AQ
PROCEEDS OF CRIME – Application for forfeiture of property – No case submission – Proceeds of Crime Act 2002 (Cth)
PROCEEDS OF CRIME – Application for forfeiture of property – Admissibility of evidence – Hearsay – Documentary evidence – Business records – Whether inference of authenticity can be drawn from document itself – Opinion evidence – Evidence Act 2008 (Vic)– ss 48, 58, 59, 64, 67, 69, 76, 79, 142, 170, 171, 183, 190, Proceeds of Crime Act 2002 (Cth)
PROCEEDS OF CRIME – Application for forfeiture of property order – Application for Exclusion from restraining order – Property subject to restraining order – Respondents not convicted of an offence - Determination of order of proceedings - Proceeds of Crime Act 2002 (Cth) sections 19, 29, 31, 45, 49, 59, 73, 74
CRIMINAL LAW – SENTENCE - Five charges of indecent assault – two charges of common law assault
Legislation Cited: Crimes Act 1958 (as it then was between 1 April 1959 and 28 February 1981), s44(1) (as amended by the Crimes (Sexual Offences) Act 1980; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited: R v Swift [2007] VSCA 52; (2007) 15 VR 497; Lucino v R [2015] VSCA 173; Cole (pseudonym) v R [2015] VSCA 44; Sherritt v R [2015] VSCA 1; Phillips v R (2012) 37 VR 594; SD v R (2013) 39 VR 487; Ryan v R [2001] HCA 21; (2001) 206 CLR 267; R v Verdins; R v Buckley; R v Vo[2007] VSCA 102; (2007) 16 VR 269; Boulton v R [2014] VSCA 342; R v Merrett & Ors (2007) 37 VR 594; Rodriquez v R (2013) 40 VR 436
Sentence: Convicted and sentenced to a total effective sentence of three years’ imprisonment with one year suspended for a supervision period of three years.
CRIMINAL LAW – SENTENCE – plea of guilty to one charge of Dangerous Driving Causing Serious Injury
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: R v Ibbs [1987] HCA 46; [1987] 163 CLR 447; Hall v R [2010] VSCA 349; R v Jurisic(1998) 45 NSW WLR 209; DPP v Neethling [2009] VSCA 116; [2009] 22 VR 466; R v Tokova [2006] VSCA 156; Boulton v R [2014] VSCA 342; DPP v Bertuch [2014] VCC 1026; DPP v Neethling [2009] VSCA 116
Sentence: Convicted and ordered to serve a Community Corrections Order of 4 years
CRIMINAL LAW – Sentencing – Indefinite sentence – Appeal against refusal to discharge indefinite sentence pursuant to Sentencing Act 1991 s 18O – Nature of the appeal right – Whether judge erred in refusing to make an order under s 18M – Whether appellant is still a serious danger to the community – Appellant accepts that he would be a serious danger to the community if released unsupervised – Whether s 5(2BD) prevents the court reviewing an indefinite sentence having regard to the regime for supervision and detention under the Serious Sex Offenders (Supervision and Detention) Act 2009 – Construction which least impinges on offender’s liberty to be preferred – Charter of Human Rights and Responsibilities Act 2006 – Whether the existence of the SSODSA regime sufficient to conclude that the appellant would not be a serious danger to the community if indefinite sentence discharged – Appeal allowed – Indefinite sentence discharged and appellant made subject to a five year re-integration period.
CRIMINAL LAW – Sentence – Conduct endangering person – Offenders pursued deceased, who had stolen a wallet belonging to the first offender – Violent altercation resulted in death – Offenders cannot be sentenced for manslaughter – Not a case of random street violence – Guilty plea – Demonstrated remorse – Excellent prospects for rehabilitation – Little need for specific deterrence – Punishment and general deterrence -Community Corrections Order
ARBITRATION – Application for subpoena requiring attendance for examination before AFL Anti-Doping Tribunal – Commercial Arbitration Act, s 27A – Supreme Court (Chapter II Arbitration Amendment) Rules 2014, r 9.14 - Supreme Court (General Civil Procedure) Rules 2005, Order 42 - Characteristics of an arbitration - Whether AFL Anti-Doping Tribunal is an arbitral tribunal – AFL Player Rules, rr 4.1, 4.9, 42.1, 42.3, 42.4, 42.7 – Whether AFL Anti-Doping Tribunal proceedings comprise domestic arbitration – Whether AFL Anti-Doping Tribunal proceedings comprise commercial arbitration
CRIMINAL LAW – Sentence - Murder of Wife - no coherent motive – plea of guilty – argument Re: Verdins - Sentence of 18 years with minimum 14 years
CRIMINAL LAW – Sentence – Multiple counts of obtaining financial advantage by deception – Multiple counts of having a deficiency in a trust account – Continuing Criminal Enterprise offending – Lawyer misappropriated over $12 million of clients’ money – Plea of guilty – Remorse – Loss of career – Importance of general deterrence, just punishment, denunciation and rehabilitation – Total effective sentence 12 years’ imprisonment, non-parole period of 8 years
CRIMINAL LAW – Sentence - thefts from employer over 18 months totalling in excess of $300,000 - chronic depressive disorder affecting judgment - plea of guilty - R v Verdins [2007] VSCA 102 - partially suspended imprisonment
CRIMINAL LAW – Sentence - Affray - Pleas of guilty - young and youthful offenders - no prior convictions - serious injury caused to victim - Sentencing Act 1991 - Community Corrections Order imposed without conviction
LEGAL PRACTITIONERS – Disciplinary proceedings – Appeal against VCAT suspension – Appellant suspended for three years - Professional misconduct by barrister – Failure to make provision and failure to report income and other tax for eight years - Whether global approach to penalty breaches common law rule in Ryan v The Queen – Whether use of charged conduct in a separate charge was a double penalty – Whether penalty was manifestly excessive – Discretion re-opened – Re-sentenced to 30 months suspension with 24 months suspended – Ancillary orders for conditions to be placed on any future practising certificate granted to the appellant - Ryan v The Queen [2000] HCA 46; (2000) 203 CLR 452; Pearce v R [1998] HCA 74; (1998) 194 CLR 656; LSC v Moore [2010] VCAT 742
CRIMINAL LAW – Appeal – Interlocutory appeal – Application for leave to appeal out of time – Stay of trial until counsel for respondent provided with solicitor to instruct counsel on day to day basis for duration of trial – Crown acquiescing in stay – Later application by Crown for leave to appeal out of time against stay despite previous acquiescence – Whether just to grant leave to appeal – Application for leave to appeal refused – Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, referred to.
CRIMINAL LAW – Criminal Procedure – Stay – Whether trial judge erred in finding that lack of instructing solicitor likely to make trial unfair – Dietrich v The Queen (1992) 177 CLR 292, considered; Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370, distinguished; R v Fuller & Cummings (1997) 95 A Crim R 554, referred to.
HUMAN RIGHTS – Charter of Human Rights and Responsibilities – Whether appropriate to entertain Charter points on interlocutory criminal appeal – Wells v R (No 2) [2010] VSCA 294, applied – Charter of Human Rights and Responsibilities Act 2006 (Vic).
PRACTICE AND PROCEDURE – Application for leave to appear as amicus curiae – Whether court would be assisted by submissions of amicus – Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222, [2011] HCA 54, applied.
CRIMINAL LAW – Sentence - Serving police officer – unauthorised disclosure of information to journalist of impending counter-terrorism raid – breach of trust reposed in officer attached to specialised unit – powerful mitigatory factors - s127A(1AB)Police Regulation Act 1958 - wholly suspended term of imprisonment
CRIMINAL LAW – Sentence - Dangerous Driving Causing Death – inattention – concession as to danger of intersection – concession as to sentencing range - wholly suspended term of imprisonment imposed
CRIMINAL LAW – Manslaughter – Defences not raised on the evidence – Unlawfulness – Whether jury should be instructed on trespass – Use force other than in self defence
CRIMINAL LAW – Evidence - Consciousness of guilt - Post-offence conduct - Lies - Necessity for evidence capable of proving a statement is a lie – Lies as to the credibility of explanation – Limiting the use of evidence – Section 136 Evidence Act 2008
CRIMINAL LAW – Submission of no case to answer - Section 299 Criminal Procedure Act 2009 - Manslaughter by unlawful and dangerous act - Whether evidence of causation - Whether evidence that the actions of the accused were dangerous - Joint criminal enterprise - Whether evidence of agreement - Whether evidence of aiding and abetting
CRIMINAL PROCEDURE – Suppression orders - Separate trials - Application by accused to prohibit publication of proceedings in first trial until completion of second trial - R v Cox and Sadler [2005] VSC 526 - Different accused - Different alleged victims - Limited suppression necessary
CRIMINAL LAW – Evidence - Relevance – Prejudice
CRIMINAL PROCEDURE – View - Assistance to jury to understand the evidence
CRIMINAL LAW – Sentencing – Crown appeal – Multiple charges of armed robbery, attempted armed robbery and robbery – Whether total effective sentence of two years’ imprisonment wholly suspended for three years and three years Community Corrections Order manifestly inadequate – Whether nature and gravity of offending such as to mandate immediate custodial sentence – Mental state of respondent – Very significant psychiatric and psychological evidence as to depleted mental state of respondent at time of offences – All six Verdins principles applicable – Verdins v R [2007] VSCA 102; (2007) 16 VR 269 – Appeal dismissed
CRIMINAL LAW – Sentence - 4 charges of Theft from Employer - Significant sum - Continuning Criminal Enterprise Offender - Consideration of R v Roussety [2008] VSCA 259 - Significant remorse and cooperation - early plea - Application of R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 - Personal Hardship caused by imposition of immediate imprisonment - Sentence of wholly suspended term of imprisonment and Community Correction Order imposed
CRIMINAL LAW – Sentence - Early plea of guilty to 6 x Obtain Property by Deception and 5 x Obtain Financial Advantage by Deception - total amount $338,901.67 - victim was employer and accused was in position of high level of trust - offences occurred over long period - offending hard to detect - mitigation due to likely pre-existing depression and anxiety and need for therapeutic counselling - good prospects for rehabilitation - about a third of funds repaid - total effective term of imprisonment of three and a half years, with non-parole period of 18 months
ADMINISTRATIVE LAW – Application for certiorari and mandamus – Decisions of Police Appeals Board – Distribution of emails by police members contrary to Instruction of Chief Commissioner – Breach of discipline – Whether Board, in assessing breaches, adopted impermissible hierarchy of seriousness – Whether error of law by Board on face of record
CRIMINAL LAW – Summary Proceeding – Charge of Exceeding the speed limit – Fixed Speed Camera on Eastlink – evidence of speed – evidence to the contrary – charge dismissed – Road Safety Road Rules 2009 s.20 – Road Safety Act 1986 s.79(1)
CRIMINAL LAW – Factories, shops and industrial safety – Crown appeal – Sentence – Respondent pleaded guilty to four counts of failing to provide and maintain a working environment that is safe and without risks to health contrary to s 21(1) of the Occupational Health and Safety Act 2004 – Stated purpose of appeal to obtain guidance on sentencing range given alleged absence of sentencing practice – No increase to sentences imposed sought – Appeal amounted to seeking of advisory opinion – Appeal dismissed – No point of general principle.
CRIMINAL LAW – Appeal against sentence – Drug trafficking offences (MDMA, cocaine and methylamphetamine) – Total effective sentence of seven years and ten months’ imprisonment with a non-parole period of five years and six months – Whether sufficient weight given to principle of parity – Appeal allowed – Appellant re-sentenced to six years and six months’ imprisonment with a non-parole period of four years and six months.
CRIMINAL LAW – Appeal against sentence – Two counts theft, two counts obtaining property by deception, one count burglary and one count attempting to obtain property by deception – Whether plea of guilty sufficiently taken into account – Delay – Whether change in appellant’s personal circumstances sufficiently taken into account – Whether total effective sentence of six years’ imprisonment with a non-parole period of four years and six months manifestly excessive – Appeal allowed – Total effective sentence manifestly excessive – Specific error also demonstrated – Appellant re-sentenced to four years and three months’ imprisonment with a non-parole period of two years and six months.
ADMINISTRATIVE LAW – appeal from orders of Victorian Civil and Administrative Appeals Tribunal – discipline of lawyers – charge of common law misconduct by misappropriation – found proven on what lawyer ‘well knew (or ought to have known)’ – no finding of dishonesty – whether tribunal erred in law – whether charge should be remitted for rehearing – ‘misconduct’, ‘misappropriation’ and ‘dishonesty’ – Legal Practice Act 1996, ss 137, 174(3), Victorian Civil and Administrative Tribunal Act 1998, s 148(1), (7).
CRIMINAL LAW – Sentencing – Fraud – Sections 6H and 6I Sentencing Act 1991 – Section 74Crimes Act 1958 – Multiple counts of theft – Continuing criminal enterprise counts – Sentencing considerations – Plea of guilty – Approximately $19 million misappropriated and $16 million recovered – Mitigating factors – No exceptional circumstances
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.
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 Act1991, 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 1958s 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
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 Act2001 (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