DPP v Sarkis [2006] VSCA 303 (21 December 2006)
CRIMINAL LAW – Sentencing – Crown appeal – Handling stolen goods and money laundering – Total effective sentence of three years’ imprisonment – Sentence imposed while respondent serving a sentence of 28 months’ imprisonment with a non-parole period of 17 months in respect of other offences – Sentencing judge imposing a new non-parole period of 18 months in respect of all sentences which the respondent was to serve or complete – Consequent increase in non-parole period of only five months – Whether judge erred in cumulation or setting of non-parole period – Whether sentence or non-parole period manifestly inadequate – Sentencing Act 1991, s.14 – Appeal dismissed.
R v Franco & Ors [2006] VSCA 302 (20 December 2006)
CRIMINAL LAW – Possession of prohibited import, being not less than a commercial quantity of cannabis resin – Statutory defence if accused did not know of importation – Whether defence open on the evidence – Whether deliberate decision by defence counsel not to argue defence – Whether directions on possession adequate – Customs Act 1901 s.233B(1)(c), (1A).
CRIMINAL LAW – Trial – Defence of duress – Direction to jury to scrutinise carefully accused’s evidence about threats – Whether direction impugned accused as witnesses – Whether direction required jury to treat accused as “suspect witnesses” – Robinson v R [1991] HCA 38; (1994) 180 CLR 531 – Whether judge’s refusal to allow naming of “true targets” of police operation emasculated defence.
CRIMINAL LAW – Sentencing – Whether prior convictions relevant to failed defence of duress – Whether failure of defence relevant to sentencing – Discretion reopened – Parity – Whether culpability of one co-accused greater than that of others.
Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301 (20 December 2006)
MEDICAL PRACTITIONERS AND SERVICES – The Medical Practitioners Board – Professional conduct of registered medical practitioner – Complaint against practitioner - Informal hearing – Finding that practitioner had not engaged in unprofessional conduct – Whether finding final and binding – Whether open to the Medical Practitioners Board to refer complaint to a second informal hearing - Medical Practice Act 1994, ss.22, 25, 29, 38K, 39, 40, 42, 43, 52, 54 and 56
Administrative law – Non-jurisdictional error of fact - Medical Practitioners Board – Informal hearing – Finding that practitioner had not engaged in unprofessional conduct – Whether finding vitiated by non-jurisdictional error of fact – Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 C.L.R. 597, considered.
Statutes – Statutory construction – Maxims – Nemo debet bis vexari, si constat curiae quod sit pro una et eadem causa – Interest reipublicae ut sit finis litium.
R v Martin [2006] VSCA 299 (20 December 2006)
Criminal Law – Conviction – Murder – Whether verdict unsafe and unsatisfactory – Directions in respect of lies – Consciousness of guilt – Whether trial judge erred in failing to extend the Edwards direction to the alternative verdict of assisting an offender – Edwards v R [1993] HCA 63; (1993) 178 CLR 193 – Application dismissed.
R v Russo (No 2) [2006] VSCA 297 (20 December 2006)
CRIMINAL LAW – Conviction – Murder – Evidence – Post-offence conduct – Whether lies and other post-offence conduct capable of evidencing consciousness of guilt – Admission - Whether judge erred in failing to give a Burns direction – DNA – Unknown contributor – Whether judge erred in failing to give a Pantoja direction – Juries – Jury announcing that they were “locked up 50-50″ – Whether judge erred in failing to give a Black direction – Verdict – Whether unsafe and unsatisfactory – Application for leave to appeal refused.
R v Nguyen [2006] VSCA 293 (20 December 2006)
Criminal law – Conviction – Commercial quantity cultivation – Expansion of Crown case by trial judge – Expansion of case post addresses – Principles relating to fundamental breach – Consideration of application of proviso – Appeal allowed – New trial ordered – R v Panozzo and Iaria [2003] VSCA 184; (2003) 8 VR 548 – R v Wilde [1988] HCA 6; (1988) 164 CLR 365 – R v Torney (1983) 8 A Crim R 437.
Re Zoudi [2006] VSCA 298 (19 December 2006)
CRIMINAL LAW – Appeal – Bail pending appeal – Exceptional circumstances – Likelihood that non-parole period will have expired before appeal heard – Whether distinction between non-parole period and partly-suspended sentence should be maintained – Re Pennant [1997] 2 VR 85 not followed – Bail granted.
R v Sibic [2006] VSCA 296 (19 December 2006)
Criminal law – Sentencing – Trafficking in a large commercial quantity of a drug of dependence – Where large commercial quantity constituted by number of cannabis plants – Relevance of past and anticipated low yield of plants – Relevance of maximum penalty – Where sentencing judge failed to give sufficient weight to physical and psychiatric conditions suffered by one appellant – Sentencing discretion reopened in relation to that appellant – Parity – Co-offender also re-sentenced
DPP v Garde-Wilson [2006] VSCA 295 (19 December 2006)
CONTEMPT OF COURT – Prosecution by DPP – Appeal against penalty – Competence of Crown appeal – Crown appeal generally – Supreme Court Act 1986 s.17(2), Public Prosecutions Act 1994 s.22, RSC O.75.
R v Tutchell [2006] VSCA 294 (19 December 2006)
Criminal law – Sentence – Rape – Failure of judge to state factual basis upon which sentence imposed – Sentence shown to have been imposed upon factual basis not supported by jury verdict – Imposition of disproportionate sentence without disclosure of that fact in sentencing remarks – Failure to make necessary findings before disproportionate sentence imposed – Appeal allowed – Disproportionate sentence imposed having regard to findings made by Court of Appeal.
Sentencing Act 1991, s.6D(a) and (b).
Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 (19 December 2006)
Accident compensation – Serious injury application – Whether pain and suffering and loss of earning capacity arising from injury “at least very considerable” – Video films of appellant’s movements – Whether appeal court should view video films – Whether video films bear on appellant’s credibility – Whether judge gave undue weight to video films – Whether decision below inconsistent with medical opinions – Accident Compensation Act 1985, s.134AB(38)(c)(e) and (f).
R v McEachran [2006] VSCA 290 (18 December 2006)
Criminal law – Sentencing – Intentionally causing serious injury, common law kidnapping and reckless conduct endangering life – Newborn baby snatched from mother in supermarket car park and left in derelict house in the hope that she would be found – Appellant sentenced to 11 years’ imprisonment with non-parole period of seven-and-a-half years, whilst co-offender sentenced to eight years’ imprisonment with non-parole period of four-and-a-half years – Whether unjustifiable disparity between offenders – Challenge to finding of fact on basis not put below – Whether concession may be withdrawn – Appellant’s stance on parity also differing from plea – Whether appropriate nevertheless to consider parity – Whether less punitive sentencing regime appropriate - Maximum of five years’ imprisonment for child stealing a relevant consideration – Kidnapping for “mothering purposes” – Appellant re-sentenced to nine years’ imprisonment with non-parole period of five years and three months – Crimes Act 1958, ss.63, 63A, 320.
R v Mitchell [2006] VSCA 289 (18 December 2006)
Criminal law – Accomplice warning – Whether accomplice or “Faure” (DPP v Faure [2000] VSCA 170; [1993] 2 VR 497) warning should have been given – Warning operative only once certain facts found adversely to accused – Warning conditional upon jury’s rejection of aspects of witness’s evidence – Whether judge erred in failing to give a “Burns” (Burns v The Queen (1975) 132 CLR 257) direction – Whether judge erred in leaving case to jury on alternative basis of acting in concert – Whether judge erred in not giving an “Edwards” (Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193) or “Zoneff” (Zoneff v The Queen [2000] HCA 28; (2000) 200 CLR 234) direction – Whether judge should have left alternative verdict of manslaughter to the jury – Misdirection in respect of accomplice warning but not otherwise.
R v L R G [2006] VSCA 288 (18 December 2006)
Criminal law – Sexual offences against children – Two complainants – One complainant not asked to attest to truthfulness of VATE tapes – No objection taken at trial – Whether miscarriage of justice – Form in which complainants should have been asked to attest to truthfulness of tapes – Whether sufficient warning given to jury about difficulties that delay causes for an accused person – Whether separate consideration direction included sufficient warning against propensity reasoning –Aggregate of errors or irregularities – Whether miscarriage of justice - Observations (by Callaway, J.A.) on uncharged acts – Crimes Act 1958, ss.398A, 568(1) – Evidence Act 1958, s.37B.
R v Rajakaruna (No 2) [2006] VSCA 277 (18 December 2006)
Criminal law – Common assault and rape – Two complainants – Crown case only partly circumstantial – Whether need to give directions on inferential reasoning – Rule in Browne v. Dunn – Questions not asked in cross-examination – Judge withdrawing issue from jury – Similar fact evidence – Innocent infection – Directions to be given – Appeal allowed - New trial directed.
Shaw v Yarranova Pty Ltd & Anor [2006] VSCA 291 (15 December 2006)
CONTRACT – Sale of apartment “off-the-plan” by way of a contract of sale – Whether contract of sale covered by Domestic Building Contracts Act 1995 – Whether a “Major Domestic Building Contract” Domestic Building Contracts Act 1995, ss 3, 4, 5, 6, & 42 – Statutory interpretation – Consideration of the position of the Act within legislative regime – Appeal dismissed.
R v Tran [2006] VSCA 285 (15 December 2006)
Criminal Law – Sentence appeal – Aggravated burglary, intentionally causing serious injury and injury – Injuries at lower end of relevant ranges – Prior good character – Evidence of rehabilitation – Absence of explanation and evidence of remorse – Manifestly excessive – Appeal allowed and re-sentenced.
DPP v Johnstone [2006] VSCA 281 (15 December 2006)
CRIMINAL LAW – Crown appeal - Culpable driving – Respondent reading mobile phone – Respondent not travelling at excessive speed – Two passengers dead – One passenger seriously injured - Total effective sentence of four years and six months with non-parole period of two years and three months manifestly inadequate – Appeal allowed – Respondent re-sentenced to total effective sentence of six years and nine months with non-parole period of three years and three months.
French v Queensland Premier Mines Pty Ltd & Ors [2006] VSCA 287 (14 December 2006)
REAL PROPERTY – Mortgage – Separate mortgage and loan agreement – Registered transfer of mortgage – Whether s.62 of Land Title Act (Qld) operates to vest in transferee the right to recover monies under loan agreement – Whether right to recover monies under loan agreement is a “right to recover a debt or enforce a liability under the mortgage” – Whether covenant to pay in mortgage imposes separate obligation from covenant to pay in loan agreement.
STATUTORY INTERPRETATION – Whether “right to recover a debt or enforce a liability under the mortgage” includes right to recover debt or enforce liability secured by mortgage – Presumption that meaning to be attributed to every word of statutory provision – Overriding principle that precise terms of provision will govern.
WORDS AND PHRASES – “Under the mortgage”
DPP v McEachran & Ors [2006] VSCA 286 (14 December 2006)
Confiscation – Confiscation of property – Restraining order over assets including land of accused – Order that Victoria Legal Aid grant assistance – Order conditional on accused paying cost of provision of legal services - Secured by a charge over land the subject of restraint – Whether Victoria Legal Aid able to take a charge whilst land remained subject of restraint – Whether charge can be given or taken over other property whilst the same remains subject to restraint – Order granting assistance on condition good in form but bad in substance.
Confiscation Act 1997, s.143. —
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (14 December 2006)
RELIGIOUS VILIFICATION – Seminar and articles concerning the religious beliefs of Muslims – Whether presentation of seminar or publication of articles inciting hatred against, serious contempt for or revulsion or severe ridicule of Muslims on the ground of religious belief – Whether conduct engaged in reasonably and in good faith for a genuine religious purpose - Racial and Religious Tolerance Act 2001, ss.8, 9 and 11
Judgment Orders and Declarations – Order – Order to publish notice in the nature of corrective advertising – Whether power to make orders under s.23 of the Racial and Religious Tolerance Act 2001 includes power to make orders in the nature of corrective advertising – Whether order in any event objectionable as lacking specificity - Racial And Religious Tolerance Act 2001, s.23; Equal Opportunity Act 1995, s.136(a)(iii)
Constitutional Law (C’th) - Implied freedom of communication about government or political matters – Prohibition on engaging in conduct which incites hatred against, serious contempt for or revulsion or severe ridicule of a group of persons on the ground of religious belief – Whether capable of burdening implied freedom – Whether reasonably appropriate and adapted to serve legitimate end – Racial and Religious Tolerance Act 2001, s.8.
DPP v Ripper [2006] VSCA 282 (14 December 2006)
CRIMINAL LAW – Sentencing – Director’s appeal – Principles – Recklessly causing injury – Victim young child – Protection of children – Appeal allowed – Respondent re-sentenced.
DPP v DL; DPP v CB [2006] VSCA 280 (13 December 2006)
Criminal Law – Sentencing – Crown appeal – Sexual penetration of a child under 16 – Possessing child pornography – Two-Offenders – Mother (”DL”) made 14 year old intellectually disabled daughter, “A” available to her boyfriend (”CB”) for sex – Naked photograph of A - Each co-accused convicted of one count of sexual penetration of a child under 16 – CB also convicted of producing and possessing child pornography – DL Sentenced to 15 months with a minimum of five months – CB sentenced to two years nine months with a minimum of 15 months – Sentences manifestly inadequate – Sentences failed to reflect the exploitative nature of the offences – Offenders re-sentenced – (CB) to four years and six months with a non-parole period of two years and six months – (DL) to two years and six months with a non-parole period of 18 months.
DPP v Yarra Valley Water Ltd; DPP v Blaxland Pacific Pty Ltd [2006] VSCA 279 (13 December 2006)
CRIMINAL LAW – Sentencing – Director’s appeal – Failing to provide and maintain a safe working environment – Accident – Death of a worker – Applicable principles of sentencing – DPP v Amcor Packaging Pty Ltd [2005] VSCA 219; (2005) 11 VR 557 – Occupation Health and Safety Act 1985 ss.21(1) and (2).
R v Fetherston [2006] VSCA 278 (13 December 2006)
Criminal law – Conviction – Abduction of child under 16; meaning of “taking away” – Maintaining sexual relationship with a child under 16 – Penetration of a child under 16 – Directions as to uncharged acts; propensity warning not given until after jury commenced deliberations – Standard of proof to prove uncharged acts – Directions as to evidence of denials and delayed complaints; adequacy of Kilby direction – Unsafe and unsatisfactory verdict – Application dismissed.
Tattersall’s Sweeps Pty Ltd v Veetemp Pty Ltd & Ors [2006] VSCA 276 (11 December 2006)
Contract – Construction – Whether authorised Tattersall’s outlets bear certain costs of network upgrade – Whether new power points were “a necessary and direct cost or expense of the upgrade” – Appeal allowed.
R v Cherry (No 2) [2006] VSCA 271 (8 December 2006)
Criminal Law – Conviction – Causing a person to take a substance capable of interfering substantially with bodily functions – Turbulent marital relationship between applicant and complainant – Defence contention that complainant “set up” the applicant to gain access to children – Motive to lie – Whether trial judge erred in failing to give a Palmer direction – Palmer v R [1998] HCA 2; (1998) 193 CLR 1 – Reliability of complainant’s evidence suspect – Complainant with a history of psychiatric and psychological difficulties – Whether trial judge’s warning in respect of complainant’s evidence was adequate in the circumstances – Whether miscarriage of justice – Application dismissed.
R v Bennett [2006] VSCA 274 (6 December 2006)
CRIMINAL LAW – Sentencing – Sentencing judge adjourned the plea in order to obtain a psychiatric report – Appellant sentenced without further plea hearing – Denial of natural justice - Failure to allow parties to make submissions regarding contents of report constituted sentencing error – Matter remitted to the County Court for sentencing following R v Roberts [2000] VSCA 46.
R v Alimic [2006] VSCA 273 (6 December 2006)
CRIMINAL LAW – Sentence – Defrauding the Commonwealth contrary to s.29D Crimes Act 1914 and ss.134.2(1) of the Criminal Code (C’th) – Income tax returns lodged in false names and fraudulently claiming of Family Tax Benefits – Plea of guilty – Whether sentence of five and a half years with a non-parole period of four years manifestly excessive – Whether judge failed to comply with ss.16A(1) and 19(2) of the Crimes Act 1914 (C’th) – Appeal dismissed.
R v Lewis [2006] VSCA 272 (6 December 2006)
Criminal Law – sentencing – sexual offences against a child under 16 years – whether sentence of 10 years with a non parole period of 8 years manifestly excessive – whether judge gave sufficient weight to plea of guilty – sentencing discretion re opened – appellant re-sentenced to 9 years with a non parole period of 7 years
S T Y (Afforestation) Pty Ltd v Atkinson & Anor [2006] VSCA 283 (4 December 2006)
CONTRACT – Waiver – Election – Statement of present intention not to exercise contractual right in the future – Subsequent attempt to exercise right – Whether earlier statement amounted to abandonment of right – Whether statement constituted election between inconsistent courses of conduct.
R v Dooley [2006] VSCA 269 (4 December 2006)
Criminal law – Sentencing – Theft and intentionally causing serious injury – Appellant mistakenly sentenced as serious violent offender – Discretion thereby reopened – Strong mitigating factors calling for exercise of leniency – Appellant resentenced to 4 1/2 years’ imprisonment with non-parole period of 2 1/2 years –Sentencing Act 1991, ss.6B, 6D.
R v McNamara [2006] VSCA 267 (4 December 2006)
Criminal law – Sentencing – Robbery, attempted armed robbery and armed robbery – Sentences of 12 months’, 30 months’ and 60 months’ imprisonment respectively – Directions for cumulation resulting in total effective sentence of six-and-a-half years’ imprisonment with non-parole period of five years – Psychiatric condition and low level of intellect – Numerous relevant previous convictions – Little prospect of rehabilitation – Directions for cumulation appropriate – Head sentence and non-parole period within range – Appeal dismissed.
R v M G [2006] VSCA 264 (4 December 2006)
Criminal Law – Appeal against conviction – Sexual assaults and indecent acts involving child under the age of 16 – Credibility of parties crucial issue – Adequacy of Longman warning considered – Rule in Browne v Dunn misapplied – Appeal against conviction allowed.
R v Jones [2006] VSCA 266 (1 December 2006)
Criminal law – Sentencing – Fresh evidence – Whether new material relating to burden of imprisonment on appellant admissible – Relevance of international treaties and conventions to burden of imprisonment at common law – Evidence does not show true significance of appellant’s mental condition – Whether sentencing judge placed sufficient weight on appellant’s mental condition – Manifest excess – No error established – Appeal dismissed.
R v Pyke [2006] VSCA 265 (1 December 2006)
Criminal law – Sentencing – Murder – Manifest excess – Whether mitigatory factors afforded sufficient weight – Appellant had been the victim of a serious assault which caused ongoing psychological trauma – Appellant suffered from a personality disorder and drug dependency – Relevance of these factors to premeditation and moral culpability – Appeal allowed – Appellant re-sentenced.
R v Drasko [2006] VSCA 257 (1 December 2006)
Criminal Law – Conviction – Attempting to obtain property by deception – Applicant embarked upon a scheme to defraud her insurance company – Whether applicant’s tape recorded interview should have been excluded as involuntarily obtained or excluded in the exercise of discretion – Whether the applicant was “a person in custody” within the meaning of s.464 of the Crimes Act 1958 – Whether no case to answer – Application dismissed.
Criminal law – Sentence – Manifest excess – Depression – No prior convictions – Application dismissed.
R v Z W [2006] VSCA 256 (1 December 2006)
Criminal Law – Conviction – Indecent assault – Gross indecency – Committing an indecent act with a child under the age of 16 years – Offences committed against applicant’s two daughters and the daughter of his de facto – Whether applicant’s trial prejudiced by trial judge’s failure to sever counts relating to each victim – Cross-admissibility of evidence – Voluntariness – Cross-examination of applicant’s failure to call certain witnesses – Whether trial judge erred in failing to direct the jury that they should not speculate about what a person not called by the applicant might have said – Failure of applicant’s counsel to put various matters to the prosecution witness – Miscarriage of justice – Whether trial judge erred in failing to exclude the covert tape recorded interview between the applicant and complainant – Application dismissed.
R v Ciantar; DPP v Ciantar [2006] VSCA 263 (30 November 2006)
CRIMINAL LAW – Evidence – Scientific matters and instruments – Blood alcohol concentration – Whether reading obtained with use of preliminary breath test device admissible as evidence of blood alcohol concentration - Road Safety Act 1986, ss.53, 55 and 58.
Criminal law – Culpable driving causing death – Driving under influence of alcohol to such extent as to be incapable of having proper control of a motor vehicle – Whether need for causal connection between alcoholic state of driver and death of victim – R. v. Feketa (1982) 10 A. Crim. R. 287, followed – Crimes Act 1958, ss.318(2)(c) and (d).
Criminal law – Evidence - Flight – Consciousness of guilt – Whether evidence of failure to stop at scene of accident causing death capable of being probative with respect to particular offence of culpable driving as opposed merely to involvement in unlawful activity – Directions to jury – R. v. Woolley (1989) 42 A. Crim. R. 418, considered; R. v. Angiocoli (1994) 87 C.C.C. (3d) 289 and R. v. Peavoy (1997) 117 C.C.C. (3d) 226, not followed; R. v. Heyes [2006] VSCA 86; (2006) 12 V.R. 401, doubted.
Criminal Law – Evidence – Lies - Consciousness of guilt – Directions to jury – Failure to give Edwards direction – Whether productive of miscarriage of justice.
Criminal Law – Appeal – Proviso – Whether proviso able to be applied where miscarriage of justice caused by failure to give Edwards direction – R. v. Weiss [2005] HCA 81; (2005) 80 A.L.J.R. 444, applied – Crimes Act 1958, s.568(1).
Criminal Law – Procedure – Mistake by jury in delivering verdict – Correction of mistake before jury discharged.
Criminal Law – Sentencing – Crown appeal – Culpable driving (one count), failing to stop after motor accident (one count) and failing to render assistance (one count) – Total effective sentence of four years and one month’s imprisonment with non-parole period of 19 months – Head sentence and non-parole period remarkably lenient but not attracting appellate intervention.
R v Orton [2006] VSCA 261 (30 November 2006)
Criminal law – Sentence appeal – Trafficking methylamphetamine and MDMA – Erroneous findings as to quantities trafficked – Resentenced to total effective sentence of two years’ imprisonment suspended for 217 days already served.
R v Jahanara [2006] VSCA 260 (30 November 2006)
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.
R v RGP [2006] VSCA 259 (30 November 2006)
Criminal law – Incest – Confession by applicant – Applicant giving evidence that confession was false – Evidence sought to be led that applicant made another false confession in not dissimilar circumstances three years before – Whether sufficiently relevant to be admissible – Step-children of applicant giving evidence against him – Whether a step-child is a child entitled to seek exemption from giving evidence – Crimes Act 1958, s.400.
R v Gibson [2006] VSCA 258 (30 November 2006)
Criminal law – Sentencing – Evidence of uncharged acts included in depositional material – Sentencing judge not informed that prosecution no longer relied on those allegations – Reference to allegations in reasons for sentence – Appellant re-sentenced for threatening to inflict serious injury (two counts), damaging property, being a prohibited person in possession of an unregistered firearm and fraudulently using a motor vehicle number plate.
R v Gell [2006] VSCA 255 (30 November 2006)
Criminal law – Sexual offences against children – Aggregate of errors or irregularities causing trial to miscarry – Prosecutor putting to accused that either he or complainants were lying – Objection by defence counsel not upheld - Jury question as to why one of the complainants would lie – Insufficient directions in light of jury question – More than one complainant but no propensity warning given – Direction on good character given but in very limited terms – Counts of sexual penetration described as “rape” in course of charge – Judge’s misapprehension affecting tenor of redirection – Crimes Act 1958, s.568(1)
R v K C F [2006] VSCA 270 (29 November 2006)
CRIMINAL LAW – Sentencing – Arson and theft – Appellant lighting fire in bakery – Manifest excessiveness – Appellant to give evidence against co-accused – Whether judge erred in determining the seriousness of the offence as to the co-conspirators – Whether resulting discount reflected sufficient acknowledgement – Johns v. R. [1979] HCA 33; (1979) 141 C.L.R. 409, R. v. Franklin [2001] VSCA 79; (2001) 3 V.R. 9 and Director of Public Prosecutions v. SJK [2002] VSCA 131 – Sentencing Act 1991 s. 16A(2)(h)
Noordennen v Rofe [2006] VSCA 253 (29 November 2006)
Equity – De facto relationship – Property acquired in the name of one party – Contribution to the acquisition and improvement of property by the other party – Common intention – Constructive trust based upon unconscionable conduct – Damages for detinue and conversion – Proof of value of items of personal property.
Garlick v DPP [2006] VSCA 275 (24 November 2006)
CRIMINAL LAW – Bail pending appeal – Partially-suspended sentence – Custodial portion of sentence will have expired before appeal heard – Exceptional circumstances – Bail granted.
R v Mark & Elmazovski [2006] VSCA 251 (24 November 2006)
CRIMINAL LAW – Sexual penetration of child under 16 – Defence under Crimes Act 1958 s. 45(4)(a) that accused believed on reasonable grounds that child was 16 or older – Whether consent also in issue – Whether prosecution should have conceded that consent not in issue.
CRIMINAL LAW – Trial – Jury directions – Prior inconsistent statements by complainants – Conflicts of evidence between prosecution witnesses – Whether trial judge sufficiently directed jury.
CRIMINAL LAW - Evidence – Admissibility - Propensity evidence – Evidence of drug-taking and supply of drugs to child victims – Whether likely to cause jury to engage in impermissible reasoning – Whether discreditable conduct part of the res gestae – Crimes Act 1958 s.398A(2).
CRIMINAL LAW – Trial – Role of prosecutor – Defence under Crimes Act 1958 s. 45(4)(a) – Whether prosecutor should have conceded that consent not in issue – Crown witnesses called but not examined by prosecutor – Crown witness criticised in prosecutor’s final address – Whether prosecutor’s duty discharged – Whether productive of unfairness.
Dordev v Cowan & Ors [2006] VSCA 254 (23 November 2006)
Accident compensation – Serious injury application – Whether pain and suffering and loss of earning capacity arising from injury “at least very considerable” – Where nature and consequences of injury difficult to establish – Applicant’s pain disproportionate to clinical findings – Reliability of medical evidence where applicant’s credit in issue – Objective medical evidence of injury not determinative of gravity of consequences – Video evidence – Failure to produce log relating to video films – Whether court must view video evidence – Relevance to credit and to determination of “serious injury” – Difficulty in overturning judgment based on credit and considerations of fact, matters of degree and value judgment below – Accident Compensation Act 1985, ss.134AB(37) and (38)(b).
R v Pridgeon [2006] VSCA 250 (23 November 2006)
Criminal law – Sentence – Six counts of indecent assault upon children under 16 – Offences committed in 1978 and 1991 – Total effective sentence of two years’ imprisonment with non-parole period of nine months – Applicant 71 years old – Multiple health problems – Whether a finding pertinent to the extent of risk of applicant re-offending was open – Whether judge bound to find that applicant posed a lesser risk of re-offending than was found in fact – Whether judge erred in finding that specific deterrence had some role to play in sentencing applicant – Sentencing discretion re-opened – Appeal allowed – Offender resentenced to a total effective sentence of 21 months’ imprisonment with the time not already served suspended for a period of two years.