Criminal law - Evidence - Admissibility - Identification - Photo board - Probative value not outweighed by danger of unfair prejudice - Nature of appeal from decision of trial judge not to exclude - Appeal court decides admissibility for itself - Distinction between appeal following conviction and interlocutory appeal - Conviction for armed robbery not unsafe and unsatisfactory - Evidence Act 2008 (No 47) s 137 - Criminal Procedure Act 2009 (No 7) s 276(1)

Criminal law - Sentence - Armed robbery, robbery, motor vehicle theft - Offences committed while on parole for earlier, similar offences - Parole cancelled and balance of previous sentence to be served - No breach of principle of totality - Sentence not manifestly excessive.

Criminal law - Sexual offences - Rape - Incest - Consent - Whether complainant gave free agreement - Prosecution required to establish absence of conduct indicating free agreement - Appeal against rape conviction allowed and conviction for incest substituted - Evidence - Complaint evidence - Prior representations of complaint evidence led as exception to hearsay rule - Trial judge limited use of evidence to buttressing credibility - Trial judge not in error in ruling probative value of evidence not outweighed by prejudicial effect - Sentence - Accused resentenced because of successful appeal against rape conviction - Sentence not manifestly excessive - "Fresh in the memory" - Crimes Act 1958 (No 6231) ss 37 37AAA - Evidence Act 2008 (No 47) ss 66 108 136 137 192

Accident compensation - Workers compensation - Impairment benefit - Assessment - Medical question - AMA Guides to the Evaluation of Permanent Impairment - Referral to medical panel - Panel function - Provision of opinion - Non-judicial - Engagement of consultants by panel - Whether panel assessed impairment - "In accordance with" - Accident Compensation Act 1985 (No 10191) ss 63 65 66 67 68 91(1)(a) 104B(9) (12)

Administrative law - Judicial review - Non-adjudicative body - Medical panel - Expert opinion - Reasons - Standard of scrutiny.

Criminal law - Sentencing - Totality - Total effective sentence - Offences committed whilst on parole - Parole cancelled and offender required to serve remaining portion of head sentence - Totality requiring consideration of parole sentence - Parity - Co-offender - Mistaken reliance on s 6AAA declaration in respect of co-offender as guide in sentencing offender - Total effective sentence breached principle of totality - Offender resentenced - Sentencing Act 1991 (No 49) ss 6AAA 16(3B)

Criminal law - Trial - Juries - Reasonable apprehension of bias - Juror notifying trial judge of acquaintanceship with witness - Application to discharge juror refused - No error in exercise of discretion not to discharge individual juror or jury - No high degree of need for discharge - Juries Act 2000 (No 53) s 43

Criminal law - Confiscation - Drug offences - Trafficking - Drug of dependence - Forfeiture application - Discretion - Criteria - Delay - Dismissal - Appeal - Property at which offender had grown cannabis - Property obtained lawfully - Offender's home for 20 years - Underground bunker - Forfeiture application adjourned on undertaking that bunker would be filled in - Confiscation Act 1997 (No 108) ss 3A 32 33(5)

Criminal law - Intentionally cause serious injury - Nature of serious injury - Judge impermissibly enlarging Crown case - Evidence insufficient to establish serious injury - Conviction quashed - Conviction for lesser offence of intentionally causing injury entered - Total effective sentence of four years and four months' imprisonment with a non-parole period of two years and three months imposed - "Serious" - Crimes Act 1958 (No 6231) s 16 - Criminal Procedure Act 2009 (No 7) s 277

Administrative law - Judicial review - Jurisdictional error - Statutory tribunal - Determination of claims abandoned during hearing - Whether decision made in excess of jurisdiction a nullity.

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Costs - Enforcement or restraint of order - Declaration in respect of such an order - Victorian Civil and Administrative Tribunal Act 1998 (No 53) ss 121 123 124

Costs - Rule against double recovery - Several defendants severally liable - Settlement of claims against all but one defendant - Single settlement amount in respect of all claims and costs - Settlement of claim against remaining defendant - One settlement amount for claims and further amount for party-party costs to be assessed - Whether costs to be paid by sole remaining defendant to be reduced by settlement amounts paid by other defendants - Partial satisfaction - Indemnity rule - Apportionment.

Estoppel - Administrative decision-makers - Applicability - Victorian Civil and Administrative Tribunal - Res judicata - Issue estoppel.

Tort - Vicarious liability - Nature and extent - Employer - Employee's unauthorised act - Need for connection between the wrongdoer's wrongful act and his or her employment - Policy - Context - Tests - Inevitable uncertainty - Course of employment - Unexplained, spontaneous prank-like assault seriously injuring fellow employee - Whether employer liable.

Legal practitioners - Roll of practitioners - Removal of name - Jurisdiction - Purpose - Protection of public, legal profession, courts, justice system and community confidence in legal system - Fitness to practise - Fit and proper person test - Present and future - Professional misconduct - Contributing factors - Criminal behaviour not necessarily requiring removal of name - Legal Profession Act 2004 (No 99) ss 2.4.42 4.4.17(a)

Administrative law - Victorian Civil and Administrative Tribunal - Regulation of legal profession - Roll of practitioners - Tribunal's limited power to recommend removal of name - Show cause procedure - Principles - Legal Profession Act 2004 (No 99) ss 2.4.42 4.4.17(a)

Criminal law - Jurisdiction - Territoriality - Sexual offences against children - Child under 16 - Sexual penetration - Indecent act - Offences committed on ferry travelling between Melbourne and Devonport - Not necessary for Crown to plead place of commission of offences - Whether and when necessary for Crown to prove that offences committed within Victorian jurisdiction - Jury directions - Standard of proof on issue of jurisdiction - Criminal Procedure Act 2009 (No 7) Sch 1 - Crimes at Sea Act 2000 (Cth) Sch 1 cl 2

Accident compensation - Workers compensation - Indemnity - Entitlement - Third party liability - Worker injured in transport accident in course of employment - Self-insured employer paying compensation to worker - Employer's claim for indemnity from third party vehicle driver - Transport accident compensation scheme extinguishing right to common law damages - Statutory compensation dependent on satisfying impairment threshold - No application by injured employee for impairment assessment - Employer not entitled to indemnity - Accident Compensation Act 1985 (No 10191) ss 134AA 134AB 134A 135 138 - Transport Accident Act 1986 (No 111) s 93

Wills and codicils - Revocation - Testator's marriage - Contemplation - Will made after proposal and before solemnisation of marriage - Whether will revoked by subsequent marriage - Wills Act 1997 (No 88) s 13

Criminal law - Fair trial - Accused giving evidence - No re-examination - Trial judge then questioning accused by way of clarification - Trial judge's broad discretion - Need for circumspection - Not an impermissible intervention in trial process.

Criminal law - Fair trial - Kidnapping - Evidence - Judge directing jury that defence counsel had not observed rule in Browne v Dunn - Reference to possibility that accused concocted his evidence - Rule not contravened - Misdirection - Proviso - Court of Appeal in position to evaluate evidence - Overwhelming case against accused - No miscarriage of justice.

Contract - Conditions - Express - Implied - Breach - Sale of land - Residential units - Proposed plan of subdivision - Vendors expressly obliged to use best endeavours to register plan - Plan not registered within stipulated time - Nature and scope of vendors' obligation - Purchasers' claim for specific performance - Vendors' breach disentitling them to rescind - "Best endeavours" - Subdivision Act 1988 (No 53) ss 5(3) 6 17(2)(c).

Town and country planning - Responsible authority - Powers - Agreements - Land covered by planning scheme - Authority entitled to enter into agreement with proposed owner of land in anticipation of building development - Planning and Environment Act 1987 (No 45) Pt 9, Div 2

Criminal law - Summary offences - Motor vehicles - Driving unregistered vehicle on highway - Proof - Reliance on statutory certificate - Deficient particulars - Charge found proven - Charge dismissed as trivial - Appeal on question of law - Not open to magistrate to find charge proven - Absolute liability offence - Defence of honest and reasonable mistake not available - Interpretation of Legislation Act 1984 (No 10096) s 53 - Road Safety Act 1986 (No 127) ss 7 84.

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Composition of tribunal - Local government - Exception for orders giving effect to settlement - "Necessary to give effect to" - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 93 Sch 1, cl 46E(1)

Appeal - Leave to appeal - Substantial injustice where lack of jurisdiction below alleged - Public interest in ensuring that administrative tribunals act within jurisdiction.

Arbitration and awards - Foreign arbitral award - Enforcement application - Prima facie entitlement - Applicant's evidential onus - Respondent not named as party to either arbitration agreement or award - Mere provision of agreement and award insufficient to discharge evidential onus - Once evidential onus discharged respondent having legal onus of satisfying court that application should be refused - Standard of proof - Balance of probabilities - Grounds - "Pro-enforcement policy" - International Arbitration Act 1974 (Cth) ss 2D 3 8(2) (5) (7) 9(1) 39.

Arbitration and awards - Foreign arbitral award - Enforcement - Respondent denying it was proper party to arbitration agreement - Whole of evidence indicating respondent not a party - Defences - International Arbitration Act 1974 (Cth) ss 7(b) 8(5)(b) (c).

Arbitration and awards - Foreign arbitral award - Enforcement - Foreign law - Findings of arbitral tribunal or foreign court - Identity of party to arbitration agreement or award - Giving of proper notice of arbitration - Not binding on Australian court.

Estoppel - Foreign arbitral award - Enforcement - Whether respondent failing to challenge jurisdiction of arbitral tribunal or to resist award in supervisory jurisdiction estopped from resisting enforcement in Australia - Respondent denying being party to arbitration agreement not obliged to participate in arbitration or take any steps in supervisory jurisdiction.

Evidence - Admissibility - Objections to admissibility to be ruled on at time made.

Practice and procedure - Foreign arbitral award - Enforcement - Application - Should proceed inter partes when extrinsic evidence required to establish respondent a party to arbitration agreement.

Costs - Indemnity costs - Special circumstances - Foreign arbitral awards - Enforcement - Ordinary principles applicable - Unsuccessful attempt to resist enforcement order by award debtor not of itself justifying award of indemnity costs.

Arbitration and awards - Award - Setting aside - Judicial review - Leave to appeal - Procedure - Manifest error on the face of award - Applicable law - Contract - Enforceability - Common law principles - Statutory provision for agreement for arbitrator to determine dispute by reference to considerations of general justice and fairness - Arbitrator concluding that statutory provision had no application - Misconduct - "Considerations of general justice and fairness" - "Manifest error of law on the face of the award" - "May" - ss 22 38 42

Arbitration and awards - Arbitrator - Applicable law - "Amiable compositeur" - "Ex aequo et bono" - UNCITRAL Arbitration Rules Art 33 - s 22(2)

Statutes - Interpretation - Extrinsic material - Implementation of international convention - Second reading speech - Marginal note - ss 35 36(3)

Contracts - Parties - Identification - Objective theory of contract - Parties' conduct - Evidence - Admissibility - Distinction between relevance of conduct to identification issue and to interpretation of contract - Post-contractual conduct - Contracting parties' tax returns - Deductions.

Agency - Partnership - Authority - Ostensible - Actual - Partnership business dealing in goods - Business name - Contracts for agricultural investment - Use of business name - Ratification.

Negligence - Solicitors - Executrix - Advice relating to proposed application for probate - Duty to warn client of risk - Testamentary trust of estate's interest in partnership - Personal liability for debts of partnership business - Failure to advise - Causation - Wrongs Act 1958 (No 6420) ss 51 52

Defamation - Remedies - Injunction - Test - Exceptional caution required - Threatened publication of allegations in County Court statement of claim - Statement of claim disclosed to newspaper before service - Statement of claim publicly available on County Court file - Application refused - Defamation Act 2005 (No 75) ss 28 30

Practice and procedure - Discovery - Preliminary - Ascertainment of identify of prospective defendant - Confidential disclosure of material to newspaper - Newspaper rule - Application refused - Supreme Court (General Civil Procedure) Rules 2005 rr 32.03 32.04

Criminal law - Sentencing - Judicial review - Causing serious injury recklessly - County Court - Transfer of proceeding to Magistrates' Court for summary hearing - Scope of discretion - "Appropriate" - "Adequacy" - Criminal Procedure Act 2009 (No 7) ss 28 29(2)(b) 168

Criminal law - Sentencing - "Glassing offence" - Whether sentence of two years' imprisonment reasonably open - Sentencing Act 1991 (No 49) s 27(2B).

Trade practices - Misleading or deceptive conduct - Representations - Promotion of complementary medical treatments - Cancer - Efficacy of treatments - Scientific basis - Context - Falsity - Opinion lacking reasonable basis - Fair Trading Act 1999 (No 16) s 9

Human rights - Charter of Human Rights - Interpretation - Freedom of expression - Compatibility - Prohibition on misleading or deceptive conduct in trade and commerce - No mens rea requirement - Purpose of statutory provision - Consumer protection - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 15 32

Precedent - Court of Appeal - Previous decision - Subsequent decision of High Court - Majority but non-binding contrary view by High Court - Whether previous Court of Appeal decision binding.

Criminal law - Sentence - Non-custodial supervision order - Revocation - Quasi-inquisitorial nature of proceedings - Role of Secretary to Department of Health - Appeal from discretionary decision - House v R - Probability of harm to community or offender - Risk - Evaluation - Risk of harm materialising rather than gravity of harm if risk eventuated - Degree of restriction on offender's autonomy - "Danger" - "Endanger" - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65) ss 33 35 38 39 40

Constitutional law - Ministers of the Crown - Attorney-General - Secretary to the Department of Health - Powers and obligations - Judicial proceedings - Criminal law - Review of non-custodial supervision order - Attorney ordinarily expected to advance a clear and unequivocal position - Secretary's assessment of therapeutic considerations - No explanation for secretary adopting neutral position at first instance - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65)

Evidence - Burden of proof - No legal or evidential onus on any party - Standard of proof - Briginshaw principle applicable - Determination of future risk - Statutory standard of proof - Actual persuasion on part of fact finder required - Evidence Act 2008 (No 47) ss 38 140

Criminal law - Evidence - Admissibility - Reliability - Tendency - Coincidence - Theft - Crown alleging accused stole money from municipal parking meters while employed as coin collector - Evidence led from co-workers that they had pleaded guilty and been sentenced for similar thefts while on shifts with accused - Evidence of deposit of coins in accused's bank account on numerous occasions used for coincidence purposes - No coincidence or tendency notice served - Judge obliged to direct jury as to use to be made of evidence of pleas of guilty - Judge obliged to give unreliability warning - Importance of compliance with statutory obligation to provide tendency and coincidence notices - Evidence Act 2008 (No 47) ss 97 98 165

Criminal law - Trial - Self-represented accused - Possible objections to evidence - Possible warnings to jury - Scope of trial judge's duty - Judge obliged to raise potential admissibility objections and need for unreliability warning.

Criminal law - Appeal - Serious departure from prescribed processes - Failure of trial judge to provide self-represented accused with necessary information and assistance - Whether substantial miscarriage of justice in accused's trial - Strength of Crown case not by itself a determinant factor - Whether conviction inevitable - Appeal allowed - Retrial ordered - Criminal Procedure Act 2009 (No 7) s 276(1)

Administrative law - Freedom of information - Access - Entitlement - Agency - Ministerial documents - Possession - Actual - Constructive - Affairs of an agency - Connection with agency - Premier of State of Victoria - Electronic private diary of Premier's Chief of Staff - "Official document of a Minister" - "Relates to the affairs of an agency" - Freedom of Information Act 1982 (No 9859) ss 3(1) 5(1) 13(b) 25