Criminal law - Sentence - Director's appeal - Combination of community correction order and suspended sentence of imprisonment in excess of three months not lawful - Appeal allowed - Sentencing discretion reopened - Sentences of immediate imprisonment should not be imposed - Discretionary considerations - Sentencing Act 1991 (No 49) s 44

Statutory interpretation - Literal interpretation failing to promote legislative purpose - Commencement of amending legislation - Community correction order (CCO) reforms (2011) - Literal construction of prerequisites to making CCO not applicable to sentence until whole amending Act in operation - Illogical, irrational and unintended consequences - Reading down statute - Reading words into statute - Wentworth Securities principles - Precise identification of mischief - Plain drafting error - Ascertainment of additional words - Additional requirement - Preferred construction must be reasonably open - Sentencing Amendment (Community Correction Reform) Act 2011 (No 65) - Sentencing Act 1991 (No 49) s 37

Charter of Human Rights and Responsibilities - Whether Charter required the court to depart from literal interpretation - Compatibility with the right against arbitrary detention - Compatibility with the right against greater penalties being imposed than applied at time offence committed - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 21(2) 27(2) 32

Arbitration - Agreement - Applicability of arbitration clause - Third party proceeding - Claimant not party to arbitration agreement - Related company - Refusal of stay application - Whether dispute capable of settlement by arbitration - Appeal allowed - Conditions - "Claiming through or under a party" - International Arbitration Act 1974 (Cth) ss 7(2) 7(4)

Criminal law - Sentencing - Director's appeal - Suspended sentence - Power - Partial abolition - Recklessly causing serious injury - County Court judge purporting to impose wholly suspended sentence - Judge later becoming aware of statutory change - Judge recalling and purporting to vacate sentence - Judge functus officio notwithstanding jurisdictional error - Substituted sentence of three year community correction order - Whether manifestly inadequate - Whether irrespective of validity of second sentence community correction order an appropriate sentencing disposition - Criminal Procedure Act 2009 (No 7) ss 289 412 - Sentencing Amendment (Community Correction Reform) Act 2011 (No 65)

Administrative law - Inferior court - Supervision - County Court - Sentencing order - Validity - Doctrine of functus officio - Applicability - County Court lacking general power to recall sentence - County Court Act 1958 (No 6230) s 36A - Sentencing Act 1991 (No 49) ss 104 104A - Criminal Procedure Act 2009 (No 7) s 412

Judgments, orders and declarations - Finality - Inferior court - County Court - Sentence - Order entered in court record - No general power to recall and reconsider sentencing orders.

Criminal law - Criminal intelligence information - Australian Crime Commission - Special investigation - Examination - Summonses to give evidence before examiner - Offences - Giving false evidence to examiner - Prosecution - Validity of summons - Summonses relating to two murders - Refusal to stay prosecution as abuse of process - Interlocutory decision - Appeal - Whether examination related to federally relevant criminal activity - Whether murder an offence against a law of a State - "Federally relevant criminal activity" - "Law of a State" - Australian Crime Commission Act 2002 (Cth) ss 4 4A 7C 33(1)

Statutory interpretation - Ordinary and natural meaning - Purposive interpretation - Necessity of avoiding absurd or irrational results - Acts Interpretation Act 1901 (Cth) s 15AA.

Criminal law - Sentence - Totality - Offences committed whilst on parole - Whether cumulation of reclaimed parole on sentence imposed offended totality principle - Whether application of totality principle permitted consideration of time already served under earlier sentence - Sentencing Act 1991 (No 49) s 16(3B)

Equity - Unconscionable conduct - Mortgages - Credit facility - Loan application - False information - Mortgage originator and manager - Supply of financial services - Failure to inquire - Failure to interview borrower - Whether unconscionable conduct - Position and conduct of borrower - Whether statutory unconscionability - Services "ordinarily acquired for personal, domestic or household use" - Australian Securities and Investments Commission Act 2001 (Cth) (No 51) s 12CB - Trade Practices Act 1974 (Cth) (No 62) s 51AC

Criminal law - Sentencing - Sexual offences - Indecent assault - Rape - Sex offenders registration - Discretion - Reporting obligation - Offences by professional masseur - Appellant ordered to report for life - Risk - Nature - Assessment - Risk at time of prisoner's release - Degree of likelihood of risk eventuating - To be balanced against onerous reporting obligations - Expert opinion not always essential to finding of risk - Judge erring in inferring that offender would continue to work as masseur after release - Lifetime reporting obligation removed - "Risk" - Sex Offenders Registration Act 2004 (No 56) s 11

Criminal law - Sentencing - Totality principle - Indecent assault - Rape - Total effective sentence infringed totality principle.

Criminal law - Sentencing - Appropriate range - Counsel for Crown - Position adopted on appeal irreconcilable with submission on plea - Instructions - Desirability of counsel having instructions to make such concessions as counsel regards as appropriate.

Accident compensation - Workers compensation - Entitlement - Work capacity - Medical panel - Review of decision - Workplace injury to knee - Diminished capacity for work - Later unrelated unconnected non-workplace injury to shoulder with low back pain - Impermissible aggregation of injuries - Logic and policy - "No current work capacity" - "Arising from" - "Single incapacity" - Accident Compensation Act 1985 (No 10191) ss 5(1) 45 93 93C - Supreme Court (General Civil Procedure) Rules 2005 O 56

Criminal law - Sentencing - Role of the Crown - Submission from counsel as to sentencing range - Whether sentencing submission a relevant consideration - Judge's receipt of sentencing submission not necessarily indicative of taking into account irrelevant consideration - Statutory specification of when appeal not to be allowed - Whether different sentence should be imposed - Whether principle restricts defence submissions - Criminal Procedure Act 2009 (No 7) s 298(1).

Criminal law - Sentencing - Drug trafficking - Whether sentencing range given by the Crown resulted in sentencing error - Whether sentence manifestly excessive - Parity - Relative non-parole period of co-offenders.

Criminal law - Evidence - Views and inspections - Jury inspection of alleged crime scene - Questions asked by jury but not recorded - Judge declined to summarise view - Acquiescence by defence counsel - No miscarriage of justice - Importance of summarising what took place - Evidence Act 2008 (No 47) ss 53 54

Criminal law - Sentencing - Indecent assault (eight charges) - Total effective sentence four years, non-parole period two years not manifestly excessive - Serious sexual offender - Judge did not make required declaration - Whether omission able to be corrected on appeal - No power to correct on appeal - Sentencing Act 1991 (No 49) ss 6F 104A - Criminal Procedure Act 2009 (No 7) ss 312 325

Criminal law - Interlocutory appeal - Stay - Fair trial - Sexual offences - Delay - Alleged offending occurred nearly 40 years earlier - Child complainant - Original complaint to police lost - Whether irremediable prejudice to accused - Whether forensic disadvantage warning sufficient - No error in refusal of stay - Leave to appeal refused.

Criminal law - Alternative verdicts on uncharged offences - Attempted defensive homicide as uncharged alternative to attempted murder - Whether allegation of attempted defensive homicide included in allegation of attempted murder - Crimes Act 1958 (No 6231) ss 9AC 9AD - Criminal Procedure Act 2009 (No 7) s 239.

Defamation - Pleadings - Defences - Justification - Hore-Lacy form - Availability - Whether part of general law preserved by uniform defamation legislation - Defamation Act 2005 (No 75) ss 6 8 24 25 26

Defamation - Pleadings - Defences - Justification - Hore-Lacy form - Imputations - Whether defendants' imputations permissible variants of plaintiff's imputations - Correlation of competing imputations - Particulars of justification.

Defamation - Pleadings - Defences - Form - Justification - Imputations - Precision - Vagueness and generality.

Defamation - Defences - Pleadings - Contextual truth - Availability - Imputations - Identical with Hore-Lacy form of imputations - Correlation with substance of plaintiff's imputations.

Defamation - Pleadings - Imputations - Strike-out application - Capacity - Test.

Criminal law - Murder - Jury directions - Statement containing inculpatory and exculpatory material - Whether direction constituted a substantial miscarriage of justice - Whether direction suggested that jury bound to give exculpatory statements less weight.

Criminal law - Trial - Counsel - Obligation to request directions - Jury Directions Act 2013 - Effect of statutory reform on common law obligation - No temporal limitation on counsel's duty - Effect of failure to seek direction - Whether trial judge obliged to give direction - Judge's residual obligation to give directions unsought by counsel narrower than at common law - Criteria - Judge must have concluded that the failure to give the direction would cause the trial to miscarry and vitiate any resulting conviction - Appeal court must determine whether trial judge should have so concluded - "Substantial miscarriage of justice" - Jury Directions Act 2013 (No 12) ss 10 11 13 14

Criminal law - Evidence - Right to silence - Post-offence conduct - Consciousness of guilt - Implied admission - Accused's failure to mention victim's death to police or others.

Criminal law - Sentencing - Murder - Sentence of 27 years' imprisonment with non-parole period of 24 years not manifestly excessive.

Criminal law - Procedure - Indictable offence triable summarily - Theft - Defendant seeking to have charge determined summarily but only after a committal hearing - Magistrate ruling that defendant not entitled to committal hearing ahead of summary trial - Defendant committed for trial in County Court - Judicial review - "Commit for trial" - Supreme Court (General Civil Procedure) Rules 2005 O 56 - Criminal Procedure Act 2009 (No 7) ss 29 30 97 128 141 168 - Magistrates' Court Act 1989 (No 51) ss 54 56

Administrative law - Judicial review - Orders of Magistrates' Court committing or refusing to commit defendant for trial on indictment - Amenability to review.

Criminal law - Interlocutory appeal - Commonwealth offences - Attempts - Physical and mental elements - Inferences - Application for permanent stay - Whether prosecution foredoomed to fail - Attempt to import border controlled drug - Multiple pellets secreted in alimentary canal - Substance imported not a border controlled drug - Accused's mistaken belief - Not necessary for prosecution to identify particular drug accused believed he was importing - Criminal Code Act 1995 (Cth) ss 11.1 300.5 307.3.

Criminal law - Sentencing - Crown appeal - Affray - Recklessly causing serious injury - Recklessly causing injury - Random street violence - Gravity - Offender assisted principal offender - Foresight of high probability of serious injury - High culpability - General deterrence - Specific deterrence - Total effective sentence 15 months, non-parole period eight months - Sentence manifestly inadequate - Appeal allowed - Offender resentenced to total effective sentence of three years with non-parole period of one year and nine months.

Criminal law - Sentencing - General deterrence - Need for sentences to be published - Need for sustained community education - Responsibility of government.

Criminal law - Sentencing - Manifest inadequacy - Current sentencing practices - Crown appeal - Aggravated burglary - Hogarth explained - False imprisonment - Intentionally causing injury - Violent attack on former domestic partner - Total effective sentence of three years and six months' imprisonment with non-parole period of one year and six months - Determining seriousness of particular instance of aggravated burglary - Whether error occasioned by Crown submission on plea - Impairment of mental functioning - Whether moral culpability reduced - Appeal allowed - Offender resentenced to total effective sentence of five years and six months' imprisonment with non-parole period of three years - Crimes Act 1958 (No 6231) s 77

Criminal law - Aggravated burglary - Armed robbery - Recklessly causing injury - Assault - Evidence - Opinion evidence - Credibility of witness - Expert evidence - Neuropsychologist - Effect of drug use on reliability of memory - Evidence wrongly excluded - Lengthy trial - Obligations of counsel - Appeal allowed - Evidence Act 2008 (No 47) ss 101A 108C 192

Legal practitioners - Counsel - Duty to ensure trial conducted with reasonable expedition, consistent with fairness - Duty to co-operate - Trial by jury - Inordinate length (46 days) - No possible justification - Belligerent and undignified behaviour by both counsel - Unnecessarily lengthy debates.

Criminal law - Prerogative relief - Permissible fragmentation of prosecution - Evidence - Admissibility - Summary offences - Motor vehicles - Registration - Licensing of drivers - Victoria Police - Random checks - Validity - Driver complying with police requests - Passenger leaving vehicle - Police request that passenger provide name and address - Passenger repeatedly and abusively refusing to comply with police request - Passenger charged with offensive behaviour and assault - Preliminary ruling by magistrate that police request was made without lawful authority - Exercise of discretion to exclude police evidence - Collapse of prosecution - Appeal against ruling - Evidence Act 2008 (No 47) s 138(1)

Human rights - Charter of Human Rights - Applicability - Statutory interpretation - Principles - Consistency - Legality.

Human rights - Charter of Human Rights - Applicability - Road safety legislation - Enforcement - Victoria Police - Random road checks - Vehicle drivers - Stopping of motor vehicles in random checks not amounting to detention - Interference with driver's rights - Consequential interference with passenger's rights - Qualified right to drive on public roads - Right to liberty - Right to freedom of movement - Right to privacy - International Covenant on Civil and Political Rights - Interpretation of Legislation Act 1984 (No 100961) s 35(a) - Road Safety Act 1986 (No 127) s 59(1) - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 12 13 32(1) 38(1) - Evidence Act 2008 (No 47) s 138(1) (3)

Criminal law - Interlocutory appeal - Sexual penetration of a child aged under 10 or between 10 and 16 - Coincidence evidence - Probative value - Prejudicial effect - Evidence Act 2008 (No 47) ss 98(1), 101(2) - Leave to appeal granted and appeal allowed.

Trust and trustees - Trust deed - Construction - Intention of settlor - Commercial purpose - Employee remuneration and share incentive scheme - Employer wound up in insolvency - Scheme participants' share awards not then vested - Trustee's application for variation of deed - Advancement of trust termination date - Proposed prorated distribution among participants - Trustee's proposal rejected - Direction for distribution to Residual Beneficiaries - Power to nominate Residual charities - Trustee Act 1958 (No 6401) s 63A

Costs - Trustee - Appeal - Trustee's costs of appeal - Trustee taking advice of court and then appealing against advice - Appeal unsuccessful - Ordinary rule - Trustee to pay costs personally - Relevance of circumstances of the case - Attorney-General declining invitation to participate in proceeding below - Circumstances warranting departure from ordinary rule.

Criminal law - Commonwealth offences - Sentencing - People smuggling - Impoverished low-level offender - Efficacy of sentencing regime - Limited options - Gravity of crime - General deterrence - Likelihood of offender's deportation - Futility of fine - Guilty plea - Sentence of 633 days' imprisonment - "Time served" approach adopted by sentencing judge - Offender to be released upon recognizance release order after nine months' imprisonment - Deliberate decision to file notice of appeal out of time - Theoretical future benefit to offender of reduced sentence on appeal - Proposed grounds meritless - Immediate custodial sentence not inevitable - Unsatisfactory explanation for delay - Extension of time refused - Migration Act 1958 (Cth) s 233A

Criminal law - Trial - Procedural fairness - Jury - Confidentiality - Deliberations - Inability to arrive at unanimous verdict - Jury "votes" - Disclosure of voting intentions to trial judge - Voting numbers not revealed to counsel - Relevance to question not yet determined - Substantial miscarriage of justice - Appeal allowed and retrial ordered.

Precedent - Court of Appeal - Bench of three judges - Invitation not to follow recent considered decision - Undesirability.

Administrative law - Judicial review - Law enforcement - Major crime investigation - Chief Examiner - Coercive powers - Witness - Compelled evidence - Protection of personal safety and reputation - Non-publication order - Power to provide for exceptions - Requirement of specificity - Scheme for disclosure to court - Disclosure to law enforcement agencies - Information sharing - "Specifies" - Major Crime (Investigative Powers) Act 2004 (No 79) ss 1 20 29 43 67 68

Insurance - Policy - Construction - Investment management cover - Wrongful management acts - Director - Legal liability - Costs of defending legal proceedings - Special excess cover for non-executive director - Denial of claim for excess cover - Whether claimant a non-executive director during the relevant period - Director represented in product disclosure statements as an executive director - Director regarded by company board as executive director - Director not employed by the company but by related company - Relevance of tasks performed by director for benefit of company.

Criminal law - Sexual offences against children under 16 years - Indecent acts - Sexual penetration - Threat to kill - Expert opinion evidence based upon representations in business records - Whether exclusion of business records productive of substantial miscarriage of justice - Complainant exhibiting sexualised behaviour - Whether result of exposure to sexual conduct or sexual abuse - Risk of misattribution or transference - Whether judge erred in refusing leave to cross-examine complainant - Appeal allowed - Criminal Procedure Act 2009 (No 7) s 342

Criminal law - Tendency evidence - Accused's sexual interest in complainant - Whether anti-propensity warning required - Evidence Act 2008 (No 47) ss 97 101

Courts and judges - Criminal trial - Ostensible bias - Whether undue intervention in trial - Whether judge's refusal to recuse himself gave rise to apparent bias.

Evidence - Business records - Files maintained by Department of Human Services and other cognate organisations - Expert opinion evidence based on facts recorded in files sought to be tendered by defence - Whether files admissible into evidence as business records under s 69 of the Evidence Act 2008 (No 47) - Whether contents of files rightly excluded as hearsay - Procedure to be followed - Each entry in files relied upon in expert reports reviewed to determine whether entry satisfied admissibility requirements - Whether representations by person who had personal knowledge of facts - Second-hand or more remote hearsay - "Business" - Evidence Act 2008 (No 47) ss 62 69