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[2022] VSC 692
General information, not legal advice.
Supreme Court of Victoria
2022-11-11
T FORREST JA
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Dismissal of charges following failure by prosecution to appear at hearing - Whether s 79 of Criminal Procedure Act 2009 remains available as power to determine proceeding where guilty plea has been entered and proceeding falls for determination pursuant to s 7 of the Sentencing Act 1991 - Whether magistrate erred in exercising discretion in circumstances where guilty plea accepted, plea in mitigation conducted and proceeding adjourned for sentencing - Whether magistrate erred in failing to notify prosecution that charges would be dismissed if prosecutor failed to appear - Appeal allowed - Matters remitted to Magistrates' Court.
House v the King (1936) 55 CLR 499; R v Clarkson [1987] VicRp 80; [1987] VR 962; ; ; ; ; ; referred to.
1 The appellant in these appeals is the Director of Public Prosecutions. She appeals to this Court under s 272(1) of the Criminal Procedure Act 2009 against final orders made on 14 February 2022 by his Honour J P Foster, magistrate in the Melbourne Magistrates' Court. Both respondents were the defendants in separate part-heard guilty pleas set down to be heard on 14 February 2022. No prosecutor attended court in either matter. His Honour purported to exercise his power under s 79(a) of the Criminal Procedure Act 2009 to dismiss the charges against both respondents.
2 These appeals raise identical questions of law. They are expressed in the appeal notices as follows:
(1) Does s 79 of the Criminal Procedure Act 2009 remain available as a power to determine a proceeding where a guilty plea has been entered and the proceeding falls for determination pursuant to s 7 of the Sentencing Act 1991?
(2) Did the magistrate err in the exercise of his discretion under s 79 of the Criminal Procedure Act 2009 in circumstances where a guilty plea had been accepted, a plea in mitigation conducted and the proceeding had been adjourned for sentencing?
(3) Did the magistrate err in failing to give notice to the prosecution that he would dismiss the charges if a prosecutor did not appear and thus denied the prosecution the opportunity to respond?
3 As a secondary line of attack, the Director as plaintiff has brought proceedings by Originating Motions against the Magistrates' Court and Ms Horan and Mr Shahadat as defendants. The plaintiff seeks orders in the nature of certiorari and mandamus bringing up and quashing the orders made on 14 February 2022 by Foster M. For reasons that will become apparent it will be unnecessary to consider these Originating Motions.
4 Emily Horan attended the Melbourne Magistrates' Court on 28 October 2021 to answer charges filed by eight different informants. Her cases were consolidated together into the one hearing before Foster M. In short, she entered guilty pleas to various charges and others were withdrawn by the prosecution as part of a negotiated plea. The charges were not trivial. I shall set out a summary in table form of those charges.
Theft (of motor vehicle) on 11 January 2021 contrary to s 74 Crimes Act 1958.
Use unregistered motor vehicle on a highway on 31 July 2020 contrary to s 7(1)(a) Road Safety Act 1986.
5 The magistrate accepted guilty pleas entered on Ms Horan's behalf by her counsel. The agreed charges were withdrawn and those charges were struck out. A summary of all charges was read to the court by the prosecutor. Upon its completion counsel for Ms Horan accepted that the summary was fair. The magistrate stated that he found the charges before him proven. Ms Horan admitted prior convictions and a plea was commenced on Ms Horan's behalf.
6 After hearing Ms Horan's plea the magistrate ordered that she be assessed for a Community Corrections Order and adjourned the further hearings of the matter to 14 February 2022. His Honour explained the three and a half month adjournment in the following terms:
HIS HONOUR: Ms Horan, there are some magistrates in this jurisdiction that think there is no point having deferred sentences, we should just give a sentence and get on with things and go to the next matter. I take a little bit of a different view. In some matters where I see some potential and I see some people already reaching out and trying to do the right thing I am prepared to defer the matter for sentence to enable you to get further time and show good works. Do you understand that?
ACCUSED: Thank you, yes, I do, your Honour.
HIS HONOUR: You can appreciate it works to the contrary as well. If there is further offending between now and 14 February I will be taking a very dim view on those sorts of matters.
ACCUSED: I understand, your Honour.
7 The magistrate then said that 'the matter will be adjourned to 14 February 2022 and I will have an assessment ordered between now and then seeking, amongst other things, potentially drug use, dependency and perhaps some mental health assistance ... '.
8 On the same day Aladean Shahadat also attended the Melbourne Magistrates' Court. He too was to answer multiple charges filed by multiple informants in a consolidated hearing. We shall set out a summary in table form of those charges.
9 Mr Shahadat's case was called on. The magistrate accepted the guilty pleas entered on Mr Shahadat's behalf. The agreed charges were withdrawn and these charges were struck out. Two charges were 'rolled up' into one charge. Summaries were read to the court by the prosecutor and were accepted by counsel for Mr Shahadat as fair. The magistrate stated that he found the charges before him proven. These charges were not trivial. Prior convictions were admitted and a plea was commenced on Mr Shahadat's behalf.
10 After hearing Mr Shahadat's plea the magistrate adjourned finalising sentence, also until 14 February 2022, and made a fresh order for bail which included a condition of compliance with the Youth Justice Supervised Bail program.
11 During the plea Mr Shahadat's counsel had submitted that 'time served' (a few days in adult custody) would be sufficient punishment.
12 The magistrate said 'I have had a number of matters today going to 14 February, which strikes me - especially over the Christmas period where there might be a great deal of temptation - that it might be worthwhile having that supervised bail continue and then if he sees through the next four months there could be - and with another positive progress report - I would be mind[ed] to deal with him in the way you've suggested, insofar as time served, Mr Hocking.'
13 It is abundantly clear that in both matters the magistrate had moved past the stage of finding guilt and into the sentencing phase of the proceedings. All that remained was - assuming all went well for Ms Horan and Mr Shahadat - that they be sentenced on 14 February 2022.
14 On 14 February 2022 both the Horan and Shahadat cases were allocated to Court 28, a civil practice court, where Magistrate Foster was sitting. On this day other part-heard criminal cases were also to be heard in four other civil courts. Additional police prosecutors were assigned to those four other courts, however no prosecutor was available to appear in Court 28. Acting Sergeant Rebekah White, the coordinating police prosecutor, advised the magistrate's clerk, Megan Faustica, that no prosecutor was available to appear in Court 28.
15 In a Microsoft Teams conversation that took place at 12:14 pm on that day, Acting Sergeant White advised the Registry Coordinator Christina Wijeysooria that there were part-heard matters to be heard in Court 28, but that she had no-one available. Ms Wijeysooria replied 'That is ok! You can only do so much. I will enquire with the court 28 clerk shortly and give you an update but if you don't have pros to allocate then you don't'.
16 At no stage was Acting Sergeant White told that the cases of Horan and Shahadat would be called at 2:00 pm, nor was she told that the matters would be dismissed if a prosecutor did not appear.
17 The availability of police prosecutors was affected in early 2022 due to the COVID-19 virus. In March 2022, an average of five prosecutors were absent on most days due to illness.
18 Both the Horan and Shahadat matters were initially listed for 10:00 am on 14 February 2022, but were then re-listed for hearing at 2:00 pm. Mr Shahadat's matter was called first at about 2:30 pm. No prosecutor was available to attend. The magistrate stated that his clerk had specifically requested that the prosecution present at court at 2:00 pm, and that despite this when the matter was called on at 2:30 pm there was no prosecution attendance. The magistrate asked counsel for Mr Shahadat if he had any application to make - counsel then applied for costs. The magistrate then stated 'you can do better than that' and that he was considering making an order under s 79 of the Criminal Procedure Act 2009 ('CPA'). Counsel reviewed the section upon the invitation of the magistrate and made an application under s 79(a) of the CPA. The magistrate granted the application and all the charges in Mr Shahadat's consolidated matter were dismissed. Magistrate Foster asked if counsel had any other applications to make and counsel replied in the negative.
19 The Horan consolidation was then called on. Ms Horan's counsel had watched the virtual Shahadat hearing described above, no doubt with considerable interest. No prosecutor was present to prosecute Ms Horan's matter. In that circumstance counsel for Ms Horan made the identical application to that made by counsel for Mr Shahadat - namely that pursuant to s 79(a) of the CPA all charges before the court be dismissed. The magistrate acceded to this application. No application was made for costs.
20 The first question of law raised in this appeal is whether s 79 of the CPA is available as a power to determine a proceeding after a guilty plea has been entered and the proceeding falls for determination pursuant to s 7 of the Sentencing Act 1991 ('Sentencing Act'). Both the appellant and respondent made submissions on this ground. Their submissions are reproduced in brief below.
21 It is useful to set out the legislation before reviewing the submissions. Section 79 of the CPA is located within Part 3.3 of that Act and relevantly provides as follows:
Non-appearance of informant
If the informant in a criminal proceeding does not appear on the date on which the proceeding is listed for hearing, the Magistrates' Court may -
(a) dismiss the charge; or
(b) adjourn the proceeding on any terms that it considers appropriate.[1]
22 The appellant submits that the reference to a 'hearing' in s 79 is restricted to a hearing by a magistrate to determine guilt or innocence, and that the power is not available to be exercised in a mention hearing or a plea hearing. The appellant contends that the power to dismiss in s 79(a) is not available once charges have been proven either by making a finding of guilt or accepting a guilty plea. In support of this contention the appellant argues that s 79 should be construed according to its text, context and purpose. The appellant contends that its preferred construction of s 79 is supported by the other references to 'hearing' within Part 3.3 of the CPA. The appellant contrasts s 79 with s 80 of the CPA, which sets out powers where an accused person 'does not appear in answer to a summons to answer to a charge'. The appellant submits that s 80 of the CPA could include mention hearings or other forms of hearing, and that the text 'the date on which the proceeding is listed for hearing' in s 79 is a narrower and more specific term. The appellant notes that s 79 of the CPA speaks to the importance of a matter being heard and determined to finality on the day it is listed, and as such submits that s 79 is intended for use before a plea is entered or a finding of guilt is made. Once that finding is made s 79 has done its work and s 7 of the Sentencing Act is then engaged.
23 The respondents submit that s 79 of the CPA grants the magistrate a discretionary power to dismiss charges faced by an accused at a hearing and at any point in a proceeding up until a conviction has been recorded and/or a sentence imposed, contingent on an informant failing to appear. The respondents submit that primacy must be given to the statutory text in question, and note that since a 'hearing' is not defined within the CPA (with the exception of the term summary hearing), a criminal proceeding can be listed for a hearing many times. The respondents further submit that a purposive construction of s 79 aligns with the ordinary meaning of its words. They argue that there is nothing in the plain wording of s 79 of the CPA that fetters the type of hearing the section applies to and if Parliament had intended to fetter the section it could have used a specific term, as it did with a 'summary hearing'.
24 The modern approach to statutory interpretation starts with the text of the statute under consideration. At the same time the context and purpose of the statute must be considered. Resort to context and purpose is not dependent upon uncertainty or ambiguity arising from the text. It may be that this integrated examination of the statute results in a meaning given to the relevant words that departs from their literal or strict meaning. In SZTAL v Minister for Immigration and Border Protection[2] Kiefel CJ, Nettle and Gordon JJ said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
25 The context to be considered in this examination includes the relevant statute, the existing state of the law and the statutory purpose. However it must be borne steadily in mind that the task of statutory interpretation is to find the meaning of the text itself, and any interpretation of the words cannot disregard them, or extend to a meaning 'beyond ... textual limits'.[3]
26 Similarly, while the search for legislative intention or purpose may be assisted through an examination of extrinsic materials, it is well established that the most reliable indicator of legislative intention is the impugned words themselves.[4]
27 In this case the dispute turns on the meaning of the phrase 'listed for hearing'. There is no statutory definition of the word 'hearing' in the CPA, and there is no overt attempt by Parliament to restrict its meaning in s 79 to any specific type of hearing. Specifically the phrase is not, on its face, confined to a summary hearing, nor does it exclude a part-heard plea hearing.
28 If the appellant's submissions are to be accepted in both cases, what started life on 28 October 2021 as a summary hearing was amenable to the operation of s 79 up until the moment the magistrate found the matters proven,[5] at which point the summary hearing mutated into a 'plea hearing' that was not so amenable.
29 Upon a consideration of the text, context and legislative purpose I take the view that s 79 should not be read down in the manner proposed. It is clear to me that s 79 is intended to give a magistrate a broad discretion should an informant not appear on the day a proceeding is listed for hearing. If it were to be confined in the manner proposed by the appellant, it would have been a simple matter to have asserted a limiting word or phrase - 'listed for contested hearing' or 'listed for determination'. No such limiting phrase exists.
30 The fact that s 7 of the Sentencing Act is engaged upon a finding of guilt, enabling a magistrate to sentence an offender, does not, in my view, exhaust the wide discretion granted by the text. Section 7 provides the various options open to a judicial officer upon that finding of guilt. Most of those options involve orders for sentence, however s 7(1)(k) reads as follows:
(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence and subject to this Act -
(k) impose any other sentence or make any order that is authorised by this or any other Act.
31 Certain contextual aspects of Part 3 of the CPA do offer some support for a narrow reading of s 79. The CPA specifically allows a magistrate to set aside a plea of guilty, or a finding of guilt. Section 88, within Part 3.4, provides that where a person has not appeared at a criminal proceeding and a sentence is imposed, an application may be made for the matter to be reheard. Section 94 provides for an automatic rehearing in certain prescribed circumstances.[6] Save for these limited circumstances, the appellant contends there is no statutory or common-law warrant for a magistrate to set aside a finding of guilt - unless, of course, s 79 provides such a warrant, upon a prosecutorial non-attendance at a part-heard plea hearing.
32 Section 79 of the CPA has its genesis in clause 4 to schedule 2 of the Magistrates' Court Act 1989. This clause was the predecessor to s 79 and is expressed in near identical terms to s 79. The term 'hearing date' was defined in s 3 of the Magistrates' Court Act 1989 as 'in relation to a criminal proceeding, means the date on which the proceeding is listed for hearing'. I agree with the respondent that there is nothing in the history of s 79 that suggests that it carries a narrower meaning than its text supports.
33 The Legislative Guide to the CPA[7] includes the following statement:
An informant is the person who commences a criminal proceeding by signing and filing a charge-sheet (see section 6) . However, the informant will rarely personally prosecute the case and appear in court. This is because the majority of summary prosecutions are taken by police officers who are usually represented in court by a police prosecutor (under section 328) ... Section 79 allows the court to either adjourn the case or dismiss the charge if there is no appearance on behalf of the informant.
There is no hint in these words that Parliament intended to restrict the operation of s 79 in the manner proposed by the appellant.
34 The purpose, history, broader context and most importantly the text of s 79 lead me to conclude that the first question posed ought to be answered affirmatively. Section 79 of the CPA remains available as a power to determine a proceeding where a guilty plea has been entered and the proceeding falls for determination pursuant to s 7 of the Sentencing Act.
35 Question 3 is subsumed within Question 2 and these two questions can be considered together. The question can be reframed in the following way - did the magistrate err in the exercise of the discretion granted him under s 79 of the CPA by dismissing all charges in both proceedings in circumstances where:
(a) Both respondents had pleaded guilty to charges that were not trivial.
(b) Both respondents had agreed that the prosecution summary was 'fair'.
(c) The magistrate had found all charges that remained before him 'proven' and thus found each respondent guilty of all charges alleged.
(d) Both proceedings were adjourned part-heard for further plea for three and a half months.
(e) The prosecution did not have notice that the matters would be dismissed if they did not provide a prosecutor to be present at the part-heard hearings.
(f) No prosecutor attended at either hearing.
36 It is common ground between the parties that the principles set out in House v The King[8] apply to the magistrate's discretion created by s 79:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
37 These principles have been considered more recently in Minister for Immigration and Citizenship v Li.[9] Every statutory discretion is constrained by law, and every statutory discretion is confined by the subject matter, scope and purpose of the legislation under which it is conferred.[10] Every discretion allowed by statute 'is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour ... '.[11] Discretionary decisions must be reached by reasoning that is 'intelligible and reasonable and directed towards and related intelligibly to the purposes of the power'.[12]
38 The appellant contended that while the prosecution was clearly aware that both proceedings were listed for part-heard plea in Court 28, it was not made aware that the magistrate, in the absence of a prosecutor, had stood those matters down until 2:00 pm, or that, in the absence of a prosecutor, he would dismiss the matters pursuant to s 79(a). Thus, so the argument went, the prosecution was denied procedural fairness. I am not satisfied that this is the case. On any view it was known to the co-ordinating police prosecutor Acting Sergeant White that these matters were listed in Court 28. It follows that the prosecution division at Melbourne Magistrates' Court was on notice that at some stage on that day the matters would be called on in Court 28 and dealt with in some way. That is sufficient notice in my view and no breach of procedural fairness is occasioned by this asserted lack of notice. Further, I consider that the court was under no obligation to foreshadow the likely outcome of a non-appearance by a prosecutor in these matters. The prosecution division, I infer, must or at least should have known of the existence of s 79, which after all is a section in the CPA that specifically deals with the non-appearance of a prosecutor. I am not satisfied that the prosecution was denied procedural fairness as a result of some failure on the court's behalf. The prosecution knew the matter was listed for that day and, at the very least, should have known of the magistrate's discretion created by s 79.
39 Having said that, I am troubled by several aspects of the magistrate's use of his s 79 discretion in these matters, to the extent that I am satisfied that there has been a failure properly to exercise the discretion statutorily reposed in the magistrate.
40 It is regrettable that no transcript is available of the relevant events in Court 28. I am prepared to infer that an element of frustration must have attended the magistrate's thought process at the relevant time. The course of events throughout the day would have tested even the most imperturbable judicial officer. The cases had been adjourned for three and a half months to allow the respondents to demonstrate that they were worthy of lenient consideration and those cases were sabotaged (temporarily at least) by the lack of a prosecutor.
41 Other matters were also relevant in the exercise of his Honour's discretion. The alternative was to adjourn the matters and award costs. In this event justice would have been further delayed, but it would not have been denied. In February 2022 reported COVID-19 cases in Victoria were at a very high level - it is common public knowledge that at the start of February around 14,000 new cases a day were being reported and that this trended gently downwards after that. In an affidavit on this appeal[13] Acting Sergeant White deposed as follows:
[6] On a routine sitting day at Melbourne Magistrates' Court, there are around fifteen criminal courts. Two further civil courts are used to hear family violence related matters.
[7] The management of the criminal courts is the responsibility of the Victoria Police Criminal Court Co-ordinator, usually an experienced Sergeant. The management of cases in the family violence courts is the responsibility of police lawyers who usually staff those courts.
[8] Additionally, individual Magistrates may direct that criminal matters be listed on, or adjourned to, a day when they are sitting in a civil court. This can occur without any prior consultation with the Victoria Police Criminal Court Co-ordinator as to the availability of police prosecutors.
[9] On a routine sitting day, Victoria Police have around forty police prosecutors on duty, of which twenty will be rostered for serving the criminal courts with the remainder engaged in the preparation of contested cases and contested mentions and other matters as well as attending case conferences.
[10] The availability of police prosecutors has been affected by illness due to COVID-19. In March 2022, we had an average of five prosecutors absent on most days due to illness. Absences also arise due to requirements for sworn police members to complete compulsory operational training courses including first aid and bi-annual firearms training. Police prosecutors have also been redeployed at short notice for other duties related to enforcement of COVID-19 related measures as well as emergencies such as bushfires.
42 Another highly relevant factor to the proper exercise of the s 79(a) discretion is the nature and gravity of the offending conduct. Amongst the 13 charges to which she had pleaded guilty, Ms Horan fell to be sentenced for theft of a motor vehicle (two charges), theft (two charges) and driving while disqualified (two charges). Mr Shahadat had pleaded guilty to numerous charges relating inter alia to family violence, intentionally damaging property, unlawful assault, and committing an indictable offence while on bail. Both respondents therefore faced relatively serious criminal charges. Whilst there is a public interest in the bringing of criminal charges to timely finality, in my view this public interest in the present case is subsumed by the strong public interest in subjecting those people guilty of offences to the sanctions of the court.[14]
43 Whilst I would have exercised the discretion differently to his Honour, that is insufficient from the appellant's perspective. I need to be satisfied of more. I am satisfied in both appeals and in all the circumstances that his Honour gave no or no adequate consideration to this strong public interest. For the sake of a further (frustrating) adjournment this public interest could have been accommodated by an adjournment that is contemplated by s 79(b) and which was anticipated by Mr Shahadat's counsel and to which he acquiesced. I consider his Honour's orders, in all the circumstances as I have described them, to be unreasonable.
44 More broadly, s 79(a) creates a discretion to exercise a significant power to dismiss criminal charges. This is not a power to be exercised lightly or capriciously. It should never be used out of frustration or with a desire to punish. To do so would be contrary to the 'rules of reason and justice'. I consider that, where an accused is facing criminal charges that are not trivial, this power would only be exercised in extreme circumstances. All the more so where an accused has entered a plea of guilty to those charges. Put another way, in these sorts of matters the exercise of the s 79(a) power to dismiss would be a rarity. The power to adjourn under s 79(b) and award costs if appropriate would be exercised in the vast majority of cases captured by s 79, and it should have been exercised on this occasion.
45 My answers to the questions arising on the appeal notices are therefore:
Question 1: Does s 79 of the Criminal Procedure Act 2009 remain available as a power to determine a proceeding where a guilty plea has been entered and the proceeding falls for determination pursuant to s 7 of the Sentencing Act 1991? - Yes.
Question 2: Did the magistrate err in the exercise of his discretion under s 79 of the Criminal Procedure Act 2009 in circumstances where a guilty plea had been accepted, a plea in mitigation conducted and the proceeding had been adjourned for sentencing? - Yes.
Question 3: Did the magistrate err in failing to give notice to the prosecution that he would dismiss the charges if a prosecutor did not appear and thus denied the prosecution the opportunity to respond? - No.
46 As foreshadowed, it is unnecessary to consider the Originating Motions.
47 I shall make orders to the effect that both matters be remitted to the Magistrates' Court for further plea and sentence by the same magistrate.
[1] Section 328 of the CPA provides that in the Magistrates' Court an informant may appear 'by a police prosecutor'.
[2] [2017] HCA 34; (2017) 262 CLR 362, 368 [14]; [2017] HCA 34 (citations omitted).
[3] R v A2 [2019] HCA 35; (2019) 269 CLR 507, 545 [124] (Bell and Gageler JJ); [2019] HCA 35.
[4] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, 46-7 [47] (Hayne, Heydon, Crennan and Kiefel JJ); [2009] HCA 41.
[5] It was accepted on this application that by using the phrase 'I find the matters proven', this constituted findings of guilt.
[6] Namely, where a person was unaware of the service of a charge-sheet summoning them to court.
[7] Legislative Guide, Criminal Procedure Act 2009, Part 3.3, 106.
[8] (1936) 55 CLR 499, 504-5 (Dixon, Evatt and McTiernan JJ); [1936] HCA 40 ('House').
[9] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ('Li').
[11] Ibid 349 [24] (French CJ). French CJ cited the comments of Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 189; [1965] HCA 27, and Kitto J in turn paraphrased the comments of Lord Halsbury LC in Sharp v Wakefield [1891] UKLawRpAC 8; [1891] AC 173, 179.
[12] Li [2012] HCA 61; (2013) 249 CLR 332, 349 [25] (French CJ); [2013] HCA 18.
[13] Further Affidavit of Rebekah White 2 August 2022.
[14] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 60-1 (Deane J), 72 (Toohey J); [1989] HCA 46; R v Clarkson [1987] VicRp 80; [1987] VR 962, 971-2 (Crockett, O'Bryan and Gobbo JJ).
DPP
Horan [2022] VSC 692
(1936) 55 CLR 499
(1989) 168 CLR 23
(2013) 249 CLR 332
(2017) 262 CLR 362
(2019) 269 CLR 507
(2009) 239 CLR 27
(1965) 113 CLR 177