Criminal law - Sentencing - White collar crime - Commonwealth offences - Tax evasion - Director's appeal - Conspiracy - Dishonestly causing risk of loss to Commonwealth - Sentence of two years' imprisonment with release after 12 months on giving security by recognisance - Sentence inadequate and disproportionate to objective gravity of offending - Sentence that would have been passed upon co-offender but for plea of guilty impermissibly used as starting point for offender's sentence - Two-tiered sentencing - Offender and co-offender charged with different offences attracting different penalties - Parity - Offending warranting condign punishment - Discretion to decline to intervene despite finding of inadequate sentence - Criteria - Criminal Code Act 1995 (Cth) s 135.4(5).

Administrative law - Judicial review - Victorian Civil and Administrative Tribunal - Error of law - Misconstruction of statute - Relevant and irrelevant considerations - Children - Safety - Occupational regulation - Child-related work - Assessment of individuals working with children - Negative assessment notice - Merits review - Category 2 application - Whether applicant bore an onus of proof - Public interest considerations - Whether applicant planned to engage in specific child-related work - Failure to adduce evidence of positive influence on children - "Unjustifiable risk" - Working with Children Act 2005 (No 57) s 13(2)

Criminal law - Sentencing - Application for leave to appeal - Intentionally causing serious injury - Theft - Offender's mental condition - Principles - Tsiaras - Verdins - Requirements - Causal link between offender's mental state and offending conduct - Totality - No double punishment - Cancellation of driver's licence - Sentencing Act 1991 (No 49) s 89(4).

Criminal law - Conspiracy - Elements - Analysis of agreement - Common purpose - Conspirators' involvement - Two can conspire to commit offence where only one intends to play any active role - More than mere acquiescence - Judge correct in directing jury that they must find both co-accused guilty before they could find either co-accused guilty - Sentence - Conspiracy to murder - Sentences not manifestly excessive - Crimes Act 1958 (No 6231) s 321.

Criminal law - Sexual offences - Incest - Complainant - Daughter of accused's former de facto spouse - Jury directions - Adequacy - Existence of de facto relationship - Indicia - Emotional, financial and social commitment - Ongoing sexual component relevant - Whether verdicts unreasonable or against weight of evidence - Crimes Act 1958 (No 6231) s 44(2).

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - Loss of earning capacity - Assessment - Pre-injury capacity - Suitable employment - Criteria - Worker's place of residence - Employer - Evidentiary burden of proof - Accident Compensation Act 1985 (No 10191) ss 5 134AB(19) 134AB(38)(f).

Costs - Statutory direction - Workers compensation - Leave granted to commence common law proceedings - Pain and suffering claim only - Lapse of Calderbank offer - Judge not entitled to take account of Calderbank offer - Accident Compensation Act 1985 (No 10191) s 134AB(27)(a).

Evidence - Expert evidence - Limits of medico-legal expertise - Workers compensation - Suitability of particular employment - Analysis of necessary physical capacity and individual impairment.

Criminal law - Sentencing - Driving offences - Negligently causing serious injury - Collision at controlled intersection - Catastrophic head injury to passenger - Gravity of offending - Severe departure from applicable standard - Assessment - Culpability - High risk of harm - Driving at excessive speed - Driving with excessive blood alcohol level - Unlicensed driving - Disobeying red traffic signal - Maximum penalty doubled in 2008 - Current sentencing practice - Whether practice adequately reflected increased maximum - Crimes Act 1958 (No 6231) ss 23 24.

Criminal law - Murder - Disappearance of victim - Entirely circumstantial case - Reasonable doubt - Post-offence conduct - Lies - Murderous intent - Inference open to jury - Whether evidence equally consistent with intention relevant to unlawful and dangerous act manslaughter - Evidence not intractably neutral - Failure of accused to give evidence - Whether capable of assisting prosecution case - Conviction for murder unsafe or unsatisfactory - Appeal allowed - Accused remitted for trial on manslaughter count.

Criminal law - Interlocutory appeal - Sexual offences - Child complainant - Special hearing - Pre-recording of evidence - Time limits - Power to extend nunc pro tunc - Error made by court in setting date - Power exercisable in special circumstances and in interests of justice - Extension to date more than three months after committal - No error - Criminal Procedure Act 2009 (No 7) s 371.

Statutory interpretation - Legislative intention - Maxims - Actus curiae neminem gravabit.

Criminal law - Trial - Fair trial - Power to order provision of legal assistance - Limited to trials on indictment - Power to adjourn or stay trial in aid of rights to legal aid and fair trial - Stay an extraordinary remedy - Criminal Procedure Act 2009 (No 7) s 197.

Human rights - Charter - Construction of statutes - General approach - Right to fair trial - Common law right - Charter right reflective of common law position - Charter right not capable of enforcement by order for provision of legal assistance - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 24(1) (2) 25(2)(d) (f) 32(1)

Legal aid - Eligibility - Victoria Legal Aid (VLA) - Favourable exercise of discretion - Factors that may be taken into account - Charter rights - Not intended to alter VLA discretion - Interests of justice - VLA opinion - Legal Aid Act 1978 (No 9245) ss 24(1) (2) 25(2)(d) (f).

Costs - Jurisdiction - County Court - Criminal offences - Discontinuance of prosecution - Costs order against Director of Public Prosecutions quashed - "Commencement of trial" - County Court Act 1958 (No 6230) s 78A - Supreme Court Act 1986 (No 110) s 24 - Criminal Procedure Act 2009 (No 7) ss 210 370 401 404.

Courts and judges - Apprehended bias - Well-settled principles - Prejudgment - Costs - Taxation - Review - Substantive claim settled at early stage of proceeding for $49,000 - Costs claim in excess of $500,000 - Judge expressing disquiet at what quantum might be taken to suggest about claimant's conduct - Judge alluding to possible investigation by disciplinary authorities - Judge refusing recusal application before counsel could make submissions - Judge refusing second recusal application without permitting counsel to make submissions - Appeal allowed.

Contract - Manufacture and installation of fence - Payment of deposit - Purchaser failing to complete - Seller rescinding contract and retaining deposit - Purchaser's action for return of deposit - Seller's forfeiture rights not limited to sales of real property - No claim made for relief against forfeiture.

Appeal - Appeal from Magistrates' Court - Whether question of law - Whether competent to raise issue not raised below - Magistrates' Court Act 1989 (No 51) s 109

Criminal law - Manslaughter - Aiding and abetting - Elements - Knowledge - Belief - Essential circumstances of principal offence - Verdict of guilty neither unreasonable nor unable to be supported having regard to the evidence - Verdict of guilty to manslaughter not irreconcilable with verdict of guilty for co-accused to defensive homicide - Crimes Act 1958 (No 6231) s 323

Criminal law - Criminal responsibility - General principles - Conscious, voluntary and deliberate act - Evidentiary presumption - Strict liability offences - Driving offences - Refusing to allow doctor to take sample of blood - Elements of offence - Proof of conscious and voluntary refusal required - "Must allow" - Road Safety Act 1986 (No 127) s 56(2) (5)

Statutes - Interpretation - Presumptions - Exclusion of fundamental principle of law - Unmistakable and unambiguous language required.

Accident compensation - Serious injury - Applications for leave to bring proceedings - Subsequent injury aggravating existing injury - Test - Grech - Petkovski - Accident Compensation Act 1985 (No 10191) ss 134AB(16) (17) (37) 134AD - County Court Act 1958 (No 6230) s 74

Practice and procedure - Appeal - Judgment - Stay on execution pending appeal - Principles - Whether real risk that appeal if successful would be rendered nugatory - Discretion - Undertaking to pay sum of money into interest-bearing account pending hearing and determination of appeal - Stay granted.

Criminal law - Procedure - Sentencing indication - Indictable offences triable summarily - Magistrates' Court - Committal proceeding - Judicial review - Jurisdictional error - No power to give sentencing indication where summary jurisdiction not yet accepted - Criminal Procedure Act 2009 (No 7) ss 60 61

Courts and judges - Fair trial - Apprehended bias - Fair-minded lay observer - Prejudgment - Civil trial - Claim for workers compensation - Plaintiff appearing in person - Trial judge - Dismissal of claim - Rejection of plaintiff's evidence as to alleged injuries - Trial judge's earlier submission to Law Reform Committee inquiry on vexatious litigants - Submission referring to general characteristics of litigants in person - Allusion to plaintiff - Credit and mental condition - Prejudgment not limited to expression of views about ultimate issue - New trial ordered.

Negligence - Duty of care owed to prisoner by State of Victoria - Protection against assault by another prisoner - Breach - Jury charge - Adequacy - Identification of real issues and summarising of evidence - No error in judge referring to counsel's words rather than using own words - No error in failing to refer to other cases involving liability of prison authorities - Whether undue emphasis on plaintiff's past conduct and reasons for incarceration - No exception taken to charge at trial - Inferences.

Prisons and prisoners - Negligence - Prisoner assaulted in prison - Duty of care - Scope - Prisoner serving sentence for contempt of court - Assessment of risk factors affecting incoming prisoner - Prisoner's unusual behaviour - Informing on fellow prisoners - Corrections Act 1986 (No 117) ss 20(2) 30

Criminal law - Procedure - Interlocutory appeal - Competence - County Court trial - Close of Crown case - Ruling of no case to answer - Crown not entitled to bring interlocutory appeal in respect of ruling - "Interlocutory decision" - Criminal Procedure Act 2009 (No 7) s 3

Statutes - Interpretation - Change of fundamental principle - Crown lacking right of appeal against conviction - Irresistibly clear language required - Extrinsic material.

Criminal law - Sexual offences - Persistent sexual abuse of a child under 16 years - Uncharged acts - Jury directions - Whether judge required to direct jury that evidence of uncharged acts must be established beyond reasonable doubt - Whether judge gave such direction - Sentence - Youthful offender - Total effective sentence of five years and six months' imprisonment with non-parole period of three years and six months not manifestly excessive.

Trusts and trustees - Testamentary trust - Trustee - Powers - Advancement of capital - Testator's widow and daughter life tenants of residuary estate - Gift over for charitable purposes - Income from residuary estate insufficient to meet living expenses of daughter - Trustee power to advance capital for benefit of widow - Arrangement to vary trust to give trustee power to advance capital for benefit of daughter - Daughter lacking capacity to consent to arrangement - Application by trustee for approval of arrangement on behalf of daughter - Attorney-General not opposing application - Protective role of Attorney-General - Intention of testator to provide for daughter - "Arrangement" - Trustee Act 1958 (No 6401) s 63A

Sale of goods - Statutory implied conditions - Fitness for purpose - Merchantable quality - Whether implied terms expressly negatived by contract - Construction - Defective tartaric acid used for processing wine grapes - "Negatived or varied by express agreement" - Goods Act 1958 (No 6265) ss 19 61

Courts and judges - Bias - Prejudgment - County Court judgment set aside for ostensible bias - Retrial ordered - New trial judge having same associate and tipstaff as disqualified judge - New trial judge refusing to disqualify himself on that account - No basis for allegation of actual bias - Apprehended bias - Knowledge to be attributed to hypothetical lay observer - Test - Decision not attended with sufficient doubt - Application for leave to appeal and other relief refused - Accident Compensation Act 1985 (No 10191) s 52(1A) - County Court Act 1958 (No 6230) s 74

Criminal law - Drug offences - Drug of dependence - Cannabis - Large commercial quantity - Cultivation - Statutory definition - Associated activities - Hydroponic maintenance system - Servicing of system - Jury questions - Erroneous direction - "Cultivate" - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) s 70

Valuation of land - Municipal valuation - Site value - Capital improved value - Ascertainment - Retail and entertainment centre - Land affected by redevelopment proposal - Proposal extensively investigated but not pursued - Valuation methodology - Comparable sales - Hypothetical prudent purchaser - Admissibility of post-valuation assessment date material - Hindsight - Foresight - Falconer principle - Land not assumed to be vacant to let - Whether faccedilade constituted improvement for purposes of statutory definition of site value - "Capital improved value" - "Estate in fee simple" - "Highest and best use" - "Site value" - Valuation of Land Act 1960 (No 6653) ss 2 5A - Planning and Environment Act 1987 (No 45) s 60(1A)(g).

Valuation of land - Review of disallowance of objections - Application to Victorian Civil and Administrative Tribunal - Order that merits review application be treated as appeal to Supreme Court - Role of court - Onus of proof - Valuation of Land Act 1960 (No 6653) s 23(3).

Evidence - Expert - Documentary material not produced - Witnesses not called - Parties with closely aligned interests - Jones v Dunkel inference - Adverse comments about evidence in earlier proceedings - Usually irrelevant.

Trade practices - Misleading or deceptive conduct - Representations as to future matters - Reasonable grounds - State of mind of representor - Time for ascertainment - Heads of agreement - Franchisor promising to provide finance to franchisee - Later franchise arrangement - Entire agreement clause - Later agreement omitting promise - Omission not inadvertent - Finance none the less partially extended by franchisor - Dispute over provision of further finance - Franchisor ceasing to extend finance and purporting to terminate franchise agreement - Franchisor breaching agreement - Breach of contract not necessarily resulting in misleading or deceptive conduct - Onus of proof - Trade Practices Act 1974 (Cth) ss 51A 51AC 52 75B

Trade practices - Unconscionable conduct - Nature and scope - Not confined to statutory criteria - Moral obloquy required - Intentional conduct usually required but not necessarily conclusive - Trade Practices Act 1974 (Cth) s 51AC

Trade practices - Accessorial liability - Corporation CEO and director - Misleading or deceptive conduct - Requisite knowledge - Knowledge of misleading or deceptive character of impugned conduct - Deliberate breach of contract not necessarily unconscionable - No accessorial liability - "Involved in a contravention" - Trade Practices Act 1974 (Cth) ss 51A 51AC 52 75B

Practice and procedure - Commencement of proceeding - Irregularity - Power to regularise proceeding - Interests of justice - Abuse of process - Group proceeding - Black Saturday bushfires - Egregious conduct of solicitors for representative plaintiff - Proceeding issued without authority of representative plaintiff - Proceeding not void - Ratification by original representative plaintiff - Ratification by substituted representative plaintiff - Need to guard against possible windfall benefit to plaintiff and group members - Temporal restriction on entitlement to interest on damages - Supreme Court Act 1986 (No 110) ss 33C 33ZF

Practice and procedure - Summary judgment - No real prospect of success test - Principles - Whether pleadings disclosed cause of action - Black Saturday bushfires - Action based on alleged breach of statutory duty - Amenability to summary disposition - Claim struck out as hopeless - Civil Procedure Act 2010 (No 47) ss 63 64 - Crown Proceedings Act 1958 (No 6232) s 23 - Emergency Management Act 1986 (No 30) ss 1 5 6 10 11 13 17

Practice and procedure - Summary judgment - No real prospect of success test - Principles - Whether pleadings disclosed cause of action - Black Saturday bushfires - Negligence - Victoria Police - Alleged duty to warn persons threatened by advancing fires - Need for factual findings - Salient features of relationship between plaintiff and defendant - Full hearing on merits appropriate - Police Regulation Act 1958 (No 6338) ss 3 5 11 123 - Civil Procedure Act 2010 (No 47) ss 63 64 - Supreme Court (General Civil Procedure) Rules 2005 r 23.01

Tort - Breach of statutory duty - Whether statute conferred private right of action - Victoria Police - Other State emergency services - Emergency Management Act 1986 (No 30)

Stamp duty - Liability - Land rich landholder - Private unit trust converted to public unit trust - Whether payment made to person with interest of 20% in scheme or person ceased to hold interest of at least 20% - Whether trustee can hold interest - Whether private unit trust must be a land rich landholder "at the time" the agreement is made - "Interest" - "Beneficial entitlement" - Duties Act 2000 (No 79) ss 76(1) 77 89C

Precedent - Court of Appeal - Not strictly bound by its previous decisions - Criteria for departing from earlier decision - Whether earlier decision plainly wrong.

Employer and employee - Industrial dispute - Deed of settlement - Construction - Provision for entry into union greenfields agreement - Expiry date - Variation - Unions obliged to refrain from protected action - Repeal of Workplace Relations Act 1996 (Cth) - Transitional provisions - Whether union released from obligation not to engage in protected action - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

Constitutional law - Commonwealth legislation - Validity - Acquisition of property - Loss of contractual entitlement - Extinguishment of protected industrial action clause - Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Not a law with respect to the acquisition of property - No acquisition of property - Commonwealth Constitution s 51(xxxi)

Trusts and trustees - Discretionary family trust - Variation - Nature of jurisdiction - Court's supervisory role - Trust's principal connection with New South Wales - Potential for future residential connection of beneficiaries with Victoria - Objects of proposed variation - Legitimacy - Obtaining taxation advantage - Extension of vesting day - Varying class of beneficiaries - Prior purported variation of deed by trustee invalid - Distributions in breach of trust - Power to excuse trustee from breach of trust - Beneficiaries' consent to orders and declarations - Whether the unascertained class of potential beneficiaries would have consented to the variations - Orders nunc pro tunc inappropriate - Trustee Act 1958 (No 6401) ss 63A 67