Plaintiffs v Defendant

2 The first plaintiff was at all relevant times a licensed racehorse trainer within the meaning of the Australian Rules of Racing ('the Rules'), and was licensed as a visiting trainer with the defendant, Racing Victoria Limited. The second plaintiff was at all relevant times registered with the defendant as a visiting stable hand, and was employed as a stable hand for the first plaintiff.

3 At the times which are relevant to this appeal, the horse 'Howmuchdoyouloveme' was trained by the first plaintiff. It was normally stabled and trained at Rosehill. On 13 October 2012, the horse and its gear were transported to Melbourne. The horse was initially stabled at Caulfield Racecourse, where it raced on 20 October. It was then moved to Flemington Racecourse, where it was kept in the stables of Mr Steve Richards. The horse was allocated box 11 at those stables.

4 On 3 November 2012, which was Derby Day, the horse was due to run in race 8 at the Flemington Racecourse. The race was scheduled to commence at 4.30 pm, and the horse was due on the racecourse at 1.30 pm.

5 On 3 November 2012, the two plaintiffs and Mr Chris Wood arrived at the Richards stables shortly after 6.00 am, in order that the plaintiffs could attend to the horse. Mr Wood was a close friend of the two plaintiffs. The plaintiffs mixed a saline powder in the feed room, and placed it in a chaff bag, which contained a stomach tubing apparatus. A feed mix was also prepared in a white bucket. The plaintiffs and Mr Wood then departed from the stables between 7.30 am and 8.00 am.

6 Later in the morning, Mr Kane Ashby and Mr Dion Villella, who were stewards and members of the compliance assurance team of Racing Victoria Limited, received information that the horse was to be stomach-tubed. As a result of that information, Mr Ashby and Mr Villella took up concealed positions near box 11.

7 At 12.37 pm, Mr Pat Cannon, a licensed trainer, who was assisting the first plaintiff, arrived at the stables. He parked the float outside the double gate of the stables. At approximately 1.02 pm, the two plaintiffs and Mr Wood arrived at the stables. The first plaintiff unlocked the feed door room and also unlocked the front gates which were secured by chains and a padlock. The plaintiffs, Mr Wood and Mr Cannon then entered the stables. Mr Cannon placed a head collar on the horse.

8 After a short time, the first plaintiff left the box. He placed the chain around the front gate, and he was observed to be manipulating the padlock which had previously been secured to the chain. At about the same time, he gave a hand signal to the persons who had remained in or near the box.

9 At that point, Mr Ashby contacted Mr Villella on his telephone, and told him to enter the stables. When Mr Villella entered the stables, he searched the two plaintiffs and Mr Wood. At the first plaintiff's request, Pat Cannon brought the horse out of box 11 to the wash bay area. Mr Ashby then entered the stables and inspected box 11. On doing so, he observed a chaff bag and a white feeder bucket which was empty. The chaff bag contained two naso-gastric tubes, a funnel, a small bucket and a sachet containing some powder. He asked the plaintiffs to explain why those articles were in a bag in box 11. The second plaintiff's response was, 'I've just picked up the wrong bag'. He said that he meant to carry a bag, which he believed contained a biscuit of hay, as well as a bucket containing hay feed and put them in box 11. Mr Villella asked the second plaintiff to show him the bag containing the hay, and the two men went to the feed room. There, the second plaintiff picked up a bag which was empty. He then took some hay from a pallet and put it in the bag.**

10 Both plaintiffs were charged with breaches of rule 175(k) and r 175(l) of the Australian Rules of Racing. Those rules provide as follows:

Rule 175 The Committee of any Club or the stewards may penalise:

...

(k) any person who has committed a breach of the Rules, or whose conduct or negligence has led or could have led to a breach of the Rules.

(l) any person who attempts to commit, or conspires with any other person to commit, or any person who connives at or is a party to another committing any breach of the Rules.

11 In each case, the plaintiffs were charged with conduct which could have led to a breach of rule 64G(1), and with conspiring or attempting to breach that rule. Rule 64G(1) provides:

No horse engaged to run in a race, official trial or jump out shall without the permission of the stewards be stomach-tubed within 24 hours of the appointed starting time for such race, official trial or jump out. For the purposes of this Rule 'stomach-tubed' means any application to a horse of a naso-gastric tube.

12 Two charges were laid against the first plaintiff. They were:

(1) A charge alleging a breach of r 175(k). The particulars to this charge alleged that on or before 3 November 2012 the first plaintiff arranged for the second plaintiff to stomach-tube the horse before race 8, and that his conduct in doing so could have led to a contravention of r 64G(1).

(2) A charge under r 175(l). The particulars to the second charge were that in arranging and/or authorising the second plaintiff to stomach-tube the horse before race 8, the first plaintiff had conspired with the second plaintiff to commit a breach of AR64G(1).

13 Three charges were laid against the second plaintiff. They were:

(1) A charge under r 175(k). The particulars to that charge were that the second plaintiff had arranged with the first plaintiff and/or agreed to stomach-tube the horse before race 8, and that, before race 8, he had placed a bag containing two naso-gastric tubes, a funnel, a bucket and powder in the horse's box for the purpose of stomach-tubing the horse before race 8. It was alleged that that conduct could have led to a breach of r 64G(1).

(2) A charge under r 175(1). The particulars of the charge were that on or before 3 November 2012, the first plaintiff had arranged with and/or authorised the second plaintiff to stomach-tube the horse before race 8, and that in return the second plaintiff had thereby conspired with the first plaintiff to breach r 64G(1).

(3) A second charge under r 175(l). The particulars of this charge were that before race 8 on 3 November 2012, the second plaintiff had placed a bag containing two naso-gastric tubes, a funnel, a bucket and powder in the horse's box for the purpose of stomach-tubing the horse before race 8, and that he had thereby attempted to commit a breach of r 64G(1).

14 The Racing Appeals and Disciplinary Board upheld each of the charges against the two plaintiffs. It disqualified the first plaintiff from training for a period of nine months effective from midnight on 31 May 2013. It disqualified the second plaintiff from acting as a registered stable hand for a period of two years. On appeal, the Tribunal affirmed the decisions of the Racing Appeals Tribunal, and confirmed the penalties imposed by it.

15 The proceedings before the Tribunal were a re-hearing de novo of the charges against each of the two plaintiffs. Mr Ashby and Mr Villella each gave evidence on behalf of the defendant. The two plaintiffs, Mr Wood, Mr Cannon, and two veterinary surgeons, Dr Johannes van Veenendaal and Peter Anthony Faehrmann, gave evidence on behalf of the plaintiffs.

16 The Tribunal Member commenced his reasons for decision by noting that the defendant bore the onus of satisfying the Tribunal that the charges had been proved. The Member stated that the applicable standard of proof was that described by the High Court in Briginshaw v Briginshaw.[1] He observed that the allegations were serious, and that the applicants faced a sanction which could affect their livelihoods. Thus he stated:

'Applying the Briginshaw standard I must be comfortably satisfied that each charge has been proved to the requisite standard.'

**17 The Member then proceeded to make findings in respect of five issues of fact raised by the evidence of the witnesses.

18 The first, and most important, issue arose from the evidence of the second plaintiff, in which he adhered to the explanation that he gave to Mr Ashby for the presence of the bag containing the naso-gastric tubes in the horse's box. In particular, the second plaintiff stated that he had mistakenly picked up that bag in the feed room, wrongly believing that it contained a biscuit of hay. The Tribunal Member rejected that evidence in unequivocal terms. He noted that the bag containing the tubes, and the bag which the second plaintiff claimed that he had intended to pick up, were visually distinctive. The Member regarded the second plaintiff as an 'unimpressive and unreliable witness' and he adopted the defendant's submission that the second plaintiff 'was prepared to make up evidence on the run in an endeavour to support his case'. He thus rejected the explanation given by the second plaintiff, and stated that he was satisfied 'to the requisite standard' that the second plaintiff had deliberately put the bag, containing the naso-gastric tubes, in box 11, knowing that it contained stomach tubing equipment.

19 The second factual issue concerned evidence by Mr Ashby that, shortly after the first plaintiff left the stable, he heard the first plaintiff state, 'I will call you if there's any trouble'. The first plaintiff and Mr Cannon both disputed that evidence, and claimed that the first plaintiff had said to the second plaintiff, 'Call me if there's any trouble.' The Tribunal Member did not accept that evidence, and he was satisfied, to the 'requisite Briginshaw standard,' that the evidence of Mr Ashby was correct as to what the first plaintiff had stated to the second plaintiff.

20 The third factual issue concerned the hand signal given by the first plaintiff when he was at the gate. It was common ground that at that point the first plaintiff did give such a signal. In his evidence, Mr Ashby described how the first plaintiff put his hand through the triangle section of the gate, and he demonstrated the signal which he saw the first plaintiff give. Mr Ashby interpreted the signal as a warning to those inside the gates, while the first plaintiff stated that he was signalling to the second plaintiff to bring the horse up. The Tribunal Member did not make any express finding in relation to that difference in the witnesses' evidence.

21 The fourth issue of fact arose from the evidence of Mr Villella, that he had observed the first plaintiff at the gate with the chain and a padlock in his hand, and that Mr Villella believed that he was attempting to lock the gate. The first plaintiff, in his evidence, endeavoured to explain his actions, by stating that he was attempting to play with the padlock because it was stiff. That evidence was contradicted by Mr Villella, who stated that on the following Monday he had tested the padlock, and found that it only required a little force to lock. The Member regarded the explanation given by the first plaintiff, for his actions, as 'feeble'. He said that there was no logical reason for the first plaintiff to be holding the chains and playing with the padlock, if he was not intending or attempting to lock the gate. The Member preferred the evidence of Mr Villella, and was satisfied 'to the required standard' that the first plaintiff was in the process of locking the gate.

22 The fifth issue of fact, determined by the Tribunal Member, arose from the fact that there was no twitch in the horse's box. In his evidence, the second plaintiff stated that he always used a twitch to drench the horse. It was therefore put that, in the absence of such a twitch, it was unlikely that he would have intended to stomach-tube the horse. The Tribunal Member rejected that evidence of the second plaintiff. In doing so, he relied on inconsistencies in the evidence given by the second plaintiff with evidence which he had given to the steward's inquiry, and to the racing tribunal, on the need to use a twitch when stomach-tubing the horse.

23 Having decided those issues of fact, the Tribunal Member noted that he had considered all the evidence, including the veterinary evidence given by Dr van Veenendaal and Dr Faehrmann. He stated, 'In the circumstances it is unnecessary for me to refer to that evidence although I have not disregarded the relevant parts of that evidence'.

This is a circumstantial case and the outcome depends on whether certain facts have been proved to the Briginshaw standard and whether those facts, if proved to the requisite standard, go to found the inference for which the respondent contends, namely that there was an intention on the part of the applicants to stomach-tube the horse on the race day before the horse competed in a race on that day.

**25 The Tribunal Member then referred to the principles which apply to the drawing of inferences in civil cases, as stated by the Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir[2] and Chapman v Cole,[3] namely, that the inference to be drawn against a defendant must be the more probable inference.

26 Having referred to those principles, the Tribunal Member concluded his reasons as follows:**

I have already referred to the six issues raised by Dr Pannam which he submitted go to found the inference for which the respondent contended, namely, that the applicants intended to tube the horse prior to the race on race day. The respondent was required to prove the facts alleged in those various issues to the Briginshaw standard. Having decided which of those issues has been proved to the required standard I then look at the combination of facts proved to determine whether I should draw the inference for which the respondent contended. I am comfortably satisfied to draw the inference that Con and Tony intended to tube the horse prior to the race on race day. There was time and opportunity to do so. Tony had placed the bag (exhibit 9) in box 11 while Con was endeavouring to lock the front gate. Ashby and Villella then arrived on the scene. I am satisfied that the respondent has proved the charges against each applicant.

**27 The plaintiffs bring this appeal, against the decision of the Tribunal Member, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998. Pursuant to that section, the plaintiffs are required first to obtain leave to bring the appeal. The application by the plaintiffs for leave was referred by the Associate Justice to the judge determining the appeal. Thus, I have before me both the application for leave to appeal, and the appeal, by the plaintiffs from the decision of the Tribunal Member.

28 The proposed amended Notice of Appeal ('the Notice of Appeal') in this case contains six grounds of appeal, namely:**

(1) The Tribunal erred in drawing inferences from the facts found without applying the Briginshaw standard of proof to the drawing of such inferences where the nature of the proceedings attracted the Briginshaw standard of proof;

(2) The Tribunal misdirected itself as to the law regarding the drawing of inferences where the nature of the proceedings attracted the Briginshaw standard of proof;

(3) The Tribunal failed to direct itself in relation to the requirement that to constitute an attempt an act must be 'sufficiently proximate;'

(4) The conclusion drawn by the Tribunal is erroneous in that it could not be drawn in the absence of a finding that the plaintiffs or either of them were in possession of or had access to a substance with the intent of administering such substance to the horse in breach of the Australian Rules of Racing;

(5) There are no findings of fact from which the Tribunal could conclude:

(a) that the first plaintiff arranged with the second plaintiff and/or agreed to administer a substance to the horse Howmuchdoyouloveme in breach of the Australian Rules of Racing;

(b) that the second plaintiff arranged with the first plaintiff and/or agreed to administer a substance to the horse Howmuchdoyouloveme in breach of the Australian Rules of Racing;

(c) that the second plaintiff attempted to administer a substance to the horse Howmuchdoyouloveme in breach of the Australian Rules of Racing;

(6) The Tribunal failed to provide adequate reasons in as much as:

(a) the reasons provided do not adequately explain the reason for the Tribunal disregarding the evidence of Dr van Veenendaal and Dr Peter Faehrmann.

(b) the reasons provided do not contain findings of fact from which the ultimate conclusion reached by the Tribunal can be drawn;

(c) the reasons provided do not sufficiently reveal the logical steps by which the Tribunal proceeded from its findings of fact to its conclusions.

**29 The parties filed written outlines of submissions, and also made oral submissions. In oral argument, Mr P Nash QC, who appeared with Mr G Burns for the plaintiffs, focused on three principal submissions. However, he did not resile from the other arguments contained in the written outline.

30 The principal submission advanced on behalf of the plaintiffs was that the Tribunal erred in finding that the two plaintiffs intended to have the naso-gastric tube administered to the horse before the race. That fact was a critical element of each of the charges against the two plaintiffs. It was submitted that the Tribunal, properly applying the standard of proof described in Briginshaw v Briginshaw,[4] could not reasonably have concluded that the plaintiffs had intended to stomach-tube the horse. In particular, Mr Nash relied on the absence of evidence of any substance which might have been administered to the horse by the naso-gastric tube. He submitted that, in the absence of any such substance, there was no rational purpose to be served in administering the stomach-tube to the horse. Mr Nash also relied on the evidence of the veterinary surgeons, that the administration of a naso-gastric tube involves risks to the health and well being of the horse. In those circumstances, Mr Nash contended that the Tribunal Member, properly applying the Briginshaw principles, could not reasonably have concluded that the two plaintiffs intended to apply the naso-gastric tube to the horse.

31 Mr Nash also submitted that the Tribunal Member failed to properly apply the principles stated by the High Court in Briginshaw. In particular, Mr Nash submitted that although the Tribunal Member applied those principles in determining intermediate facts which were in issue between the parties, the Member did not apply the same principles in inferring, from those facts, that the plaintiffs intended to stomach-tube the horse. Rather, he submitted, the Member based that inference on what he described as an 'unmodified' balance of probabilities test.

32 The third submission by Mr Nash was that the Tribunal Member disregarded the uncontradicted evidence of two veterinary surgeons called on behalf of the plaintiffs, without giving any reasons for doing so. That evidence, to which I shall later refer, described some of the risks associated with the process of stomach-tubing a horse. It was put before the Tribunal, and on this appeal, that that evidence was relevant to an assessment of the probabilities as to whether the plaintiffs had intended to stomach-tube the horse before the race.

33 In their written outline, the plaintiffs' counsel further submitted that the facts, as found by the Tribunal Member, were an insufficient basis for a conclusion that the third charge against the second plaintiff had been established, namely the charge that the second plaintiff had attempted to commit a breach of r 64G(1). The submissions referred to the principle that, in criminal law, a person is not guilty of attempting to commit an offence unless the accused has performed an act which is more than merely preparatory to the commission of the offence. The act must be 'immediately and not merely remotely connected' with the completed offence, and thus must be 'sufficiently proximate' to the completed offence, to be properly considered to be an attempt to commit that offence.[5] It was submitted that the facts found by the Tribunal Member were insufficient to satisfy that test, because no substance was available in the horse's box to enable the horse to be stomach-tubed. In those circumstances, it was submitted that the findings by the Tribunal, that the second plaintiff had brought the naso-gastric tube to the horse's box with the intention of stomach-tubing the horse, were not sufficiently proximate to constitute an attempt by the second plaintiff to stomach-tube the horse.

34 Finally, in their outline, counsel for the plaintiffs made a similar submission in relation to the findings by the Tribunal Member in respect of the second charge against each plaintiff, namely, the charge of conspiring to breach r 64G(1). In particular, it was submitted that there was no sufficient evidence, of an agreement between the two plaintiffs, for the making of that finding.

35 In response, Mr M Stirling, who appeared on behalf of the defendant, submitted that the plaintiffs had failed to establish any error of law by the Tribunal.

36 He submitted that the Tribunal Member did not err in law in concluding, on the evidence, that the plaintiffs had intended to stomach-tube the horse. Mr Stirling pointed out that the offence created by r 64G(1) is an 'instrument only offence', and not a 'substance' offence. The conduct, that is prohibited, is the use of stomach-tubing within 24 hours of race time. Thus, he submitted, the defendant was not required to prove the nature of the substance intended to be administered by the stomach-tube. Mr Stirling submitted that the facts, found by the Tribunal Member, were a sufficient basis for a finding that the plaintiffs intended to stomach-tube the horse. In that respect, Mr Stirling relied on the findings by the Tribunal that the second plaintiff had deliberately brought the stomach-tube to the horse's box shortly before the horse was due to race, the finding that the first plaintiff had told the second plaintiff that he would give him a call if there was any trouble, the finding that the first plaintiff had locked, or attempted to lock, the gate to the stable, and the finding concerning the hand signal given by the first plaintiff to the second plaintiff. Mr Stirling submitted that, taken together, those facts were a sufficient circumstantial basis upon which to found an inference that the plaintiffs intended to stomach-tube the horse before the race.

37 In addition, Mr Stirling submitted that there was evidence as to the availability of a bag of bicarbonate powder nearby, in the feed room. He pointed to evidence that bicarbonate of soda was regularly fed to the horse. Both plaintiffs were aware of, and monitored, the resting levels of the bicarbonate in the horse's blood, which were below the maximum level permitted by the rules. He submitted that that evidence was sufficient to negate the argument that there could not have been an intention to stomach-tube the horse, because there was no substance available to administer to the horse through the tube.

38 Mr Stirling further submitted that the Tribunal properly applied the principles, that are relevant to the drawing of inferences. He submitted that where, as in this case, the Tribunal was required to apply the principles stated in Briginshaw, those principles only applied to the finding by the Tribunal of the intermediate facts upon which it based its inference as to the intention of the plaintiffs. Mr Stirling submitted that, properly considered, the Briginshaw principles did not apply to the drawing of an inference from those facts. He submitted that, in any event, the same inference would have been validly drawn by the Tribunal, if the Briginshaw test applied to the inference as to the intention of the plaintiffs to administer the stomach-tube to the horse.

39 Mr Stirling submitted that the Tribunal was entitled to draw the inference, as to the intention of the plaintiffs to administer the stomach-tube to the horse, notwithstanding the evidence of the veterinary surgeons. In particular, he referred to an observation made by the Tribunal Member, in the course of the evidence of Dr van Veenendaal, querying the relevance of the evidence. Mr Stirling further submitted that, in any event, the fact, that the administration of a naso-gastric tube may involve some risks to the health of a horse, would not preclude the drawing of the inference that the two plaintiffs nevertheless intended to administer the naso-gastric tube to the horse before the race.

40 Finally, Mr Stirling submitted that the findings of fact made by the Tribunal Member were sufficient to support the conclusion by the Tribunal Member as to the existence of a conspiracy for the purposes of the second charge against each plaintiff. In particular, he referred to the evidence of the first plaintiff that he would not permit the second plaintiff to do anything to the horse without his permission, and that anything that was done to the horse by the second plaintiff would have been done with his consent. Similarly, Mr Stirling referred to the evidence of the second plaintiff, that he would not stomach-tube a horse without first discussing it with the first plaintiff. Mr Stirling also submitted that the actions of the second plaintiff, as found by the Tribunal Member, were sufficiently proximate to the commission of a breach of r 64G(1) to constitute an attempt to breach that rule.**

41 The submissions, and grounds of appeal, raise two questions concerning the principles stated by the High Court in Briginshaw v Briginshaw,[6] namely:

(1) Do the Briginshaw principles apply to the drawing of inferences?

(2) Did the Tribunal misdirect itself as to the application of the Briginshaw principles to the drawing of inferences?

**42 The first question arises from the submission by the defendant that the Briginshaw principles only apply to the finding of specific intermediate facts, but that they do not apply to the drawing of inferences from those facts. In my view, both authority and principle are contrary to that proposition. I consider that it is clear law that where a court, in a civil proceeding, is invited to draw an inference as to serious wrongdoing by a party, the court is obliged to approach the drawing of those inferences with the degree of caution described by the High Court in Briginshaw v Briginshaw, and in subsequent authorities, including Helton v Allen,[7] Rejfek v McElroy,[8] Murray v Murray[9] and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.[10]

43 The classic statement of the principle is contained in the leading judgment of Dixon J in Briginshaw v Briginshaw,[11] where his Honour stated:**

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

44 That statement of principle was clearly directed both to the finding of facts proven by direct evidence, and to the finding of facts by a process of inference. In the succeeding pages of his judgment, Dixon J examined, in detail, the authorities upon which the proposition, stated by him, were based. A number of those authorities were concerned with the drawing of inferences in civil litigation. Dixon J concluded his examination of the authorities in the following terms:

Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the Tribunal of fact that the adultery alleged was committed, it should so find.[12]

**45 In my view, it is clear, from the passages of the judgment of Dixon J, which I have just quoted, and from the reference by Dixon J to authorities concerning the drawing of inferences in civil litigation, that his Honour directed the principles, which he was stating, not only to the finding of facts based on direct evidence, but also to the finding of facts based on a process of inference.

46 Two years later, the question of the application of the Briginshaw principles, to the drawing of inferences, came before the High Court, in Helton v Allen.[13] In that case, the principal question concerned the application of the Briginshaw principles to a case in which the plaintiff sought to establish an allegation of criminality by the defendant based solely on circumstantial facts.

47 In Helton v Allen, a testatrix had died of strychnine poisoning. Proceedings were brought by the plaintiff, who was one of her next of kin, to establish that the defendant, who was named as the executor and a residuary devisee in her will, had unlawfully killed the testatrix, and that he was thus disqualified from acting as executor or taking under the will. The case was tried before a jury. The evidence in support of the plaintiff's case was entirely circumstantial. The judge directed the jury on the burden of proof by explaining the difference between the standard of proof in a criminal charge and the standard of proof applicable in a civil trial. In doing so, the judge placed emphasis on the slightness of the preponderance of probabilities which is necessary to establish a civil claim. When the jury, during its deliberations, sought a further direction about 'the point about probabilities', the judge directed the jury that it was sufficient to find in favour of the plaintiff on the issue of homicide if the jury considered there was any greater probability favouring that conclusion.

48 On appeal, the High Court held that the judge had misdirected the jury. In particular, the court held that, in a civil case involving an allegation of a grave crime or fraud, it is a misdirection to charge a jury that a mere preponderance of the probabilities in favour of such an allegation will suffice. Rather, the court unanimously held that the jury should have been directed to approach its task in the manner described by Dixon J in Briginshaw.[14]

49 There is no reason in principle why the test, stated by the High Court in Briginshaw, should not apply equally to the finding of facts by the drawing of inferences, as it does to the finding of facts based on direct evidence. The drawing of an inference is a process by which a court or tribunal may find a fact to be established on the balance of probabilities (or, in a criminal trial, beyond reasonable doubt). There is no rational reason why a court should adopt less caution in inferring the existence of a fact, than it would be required to exercise in accepting direct evidence as to the existence of the fact. The underlying rationale of the principles stated in Briginshaw resides in the seriousness of the particular allegation, and the fact that members of society do not ordinarily engage in fraudulent or criminal conduct[15]. That rationale is equally relevant and applicable to the drawing of inferences as it is to the finding of facts based on direct evidence.

50 For those reasons, I consider that the Tribunal Member was obliged to apply the approach, described by the High Court in Briginshaw, in determining whether it was satisfied, on the balance of probabilities, that the plaintiffs intended to stomach-tube the horse before the race on race day.

51 The second question is whether the Tribunal Member correctly directed himself in relation to the application of that test. The plaintiffs relied on the concluding paragraphs of the Tribunal Member's reasons in support of the contention that the Member erred by misdirecting himself as to the application of the test. Mr Nash submitted that the Member expressly stated his satisfaction on the Briginshaw standard in relation to the various intermediate facts, to which I have earlier referred. However, he submitted that the Member applied a lesser 'standard' in respect of the drawing of inferences. That proposition was based on the section in the Member's reasons which quoted passages from the decisions of the Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir[16] and Chapman v Cole.[17] In those cases, the court stated the principles relating to the drawing of inferences in civil cases in the usual terms, namely, that the relevant test is whether the inference contended for is the more probable inference.[18]

52 In my view, when read as a whole, it is clear that the Tribunal Member did correctly direct himself as to the Briginshaw principles to be applied in drawing the inference as to the intention of the plaintiffs. As I stated, at the outset, the Tribunal Member referred to the Briginshaw principles, and stated that, in applying those principles, he must be 'comfortably satisfied' that each charge had been proven to the requisite standard. The Member then examined the five issues of fact, to which I have referred, and in doing so, he expressly applied the Briginshaw standard. In that context, the reference by the Member to the principles relating to the drawing of inferences in civil cases, as stated in the two Court of Appeal decisions to which I have referred, was not a departure by the Member from the standard described by the High Court in Briginshaw. Rather, in doing so, the Member identified, correctly, the principles relating to the drawing of inferences in a civil case. In the last paragraph of his decision, the Member, having referred to the findings of fact which he had made, concluded that he was 'comfortably satisfied' to draw the inference that the plaintiffs intended to stomach-tube the horse before the race. In that context, having earlier correctly directed himself on the application of the Briginshaw principles, I am satisfied that the Member applied those principles in drawing the inferences to the intention of the plaintiffs, and in particular in finding that he was 'comfortably satisfied' to draw that inference. I therefore reject the submission that the Tribunal Member misdirected himself concerning the application of the Briginshaw principles to the civil standard of proof. It follows that grounds 1 and 2 in the Notice of Appeal fail.**

The Tribunal's conclusion as to the plaintiffs' intention to stomach-tube the horse

**53 The second, and the principal, issue raised on the appeal concerns the finding by the Tribunal Member that each of the plaintiffs intended to stomach-tube the horse before the race.

54 The submissions made on behalf of the plaintiffs impugn that finding on the basis that it was not reasonably open to the Tribunal Member on the evidence before him. The particular ground of appeal (ground 4) alleges that the conclusion, as to the intentions of the two plaintiffs, could not be drawn in the absence of a finding that the plaintiffs, or one of them, had possession of or access to a substance which might be administered to the horse through the naso-gastric tubes that were found in the horse's box.

55 The conclusion by the Tribunal Member, as to the intentions of the plaintiffs, was, of course, a conclusion of fact based on the evidence. Under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998, a party may only appeal to this Court from a decision of the Tribunal on a question of law. There was little discussion, in argument, as to the principles applicable to the question whether the ground of appeal, relied on by the plaintiffs, involves a question of law. Mr Nash submitted that, in order to establish a relevant error of law, the plaintiffs must establish that the finding by the Tribunal, as to the intentions of the plaintiffs, was not reasonably open to the Tribunal on the evidence. The conclusion by the Tribunal Member, as to the intention of the plaintiffs, was arrived at by process of inference from a number of facts established to the satisfaction of the Tribunal Member. Mr Nash submitted that in order to make out an error of law on appeal, he must, therefore, demonstrate that a reasonable Tribunal Member, correctly applying the Briginshaw principles, could not have been satisfied that the more probable inference, from the evidence, was that the plaintiffs intended to stomach-tube the horse.

56 As I stated, the applicable test, on appeal, to the question raised by the plaintiffs, was not the subject of discussion. However, I accept that Mr Nash has stated the test in sufficiently accurate terms for the purposes of the issues raised on this appeal. The question, whether a conclusion of fact by a Tribunal is open to it on the evidence, is a question of law.[19] In such a case, the question is not whether the court would have reached a different conclusion than that reached by the Tribunal. Rather, in order to establish an error of law, it must be demonstrated that the conclusion of fact, by the Tribunal, was not reasonably open to it on the evidence.

57 As I stated, the conclusion by the Tribunal Member, as to the intentions of the plaintiffs to stomach-tube the horse, was based on an inference from the facts established to the satisfaction of the Tribunal Member. The drawing of inferences is, essentially, a matter of fact for the Tribunal. However the question whether, on the evidence, and applying the appropriate balance of proof, the particular inference could be rationally drawn by the Tribunal, is a question of law.[20]

58 Accordingly, the test which I must apply is not whether, on the evidence found by the Tribunal Member, this Court might have reached a different conclusion, as to the intentions of the plaintiffs. Rather the question is whether the inference, drawn by the Tribunal Member, was reasonably open as the more probable inference, taking into account the principles stated by the High Court in Briginshaw v Briginshaw, to which I have referred above.

59 The submission on behalf of the plaintiffs, that it was not reasonably open to the Tribunal Member to conclude that the plaintiffs intended to stomach-tube the horse before the race, was based on two principal points. First, Mr Nash submitted that, in the absence of the finding of a prohibited substance in the possession of, or available to, the plaintiffs, there would have been no purpose served by the plaintiffs stomach-tubing the horse before the race. Secondly, Mr Nash referred to the evidence of the two veterinary surgeons, as to the risks associated with administering a stomach-tube to the horse, and also as to the time required to administer that process.

60 In respect of the latter matter, I was not taken, in submissions, to any specific aspect in the evidence of the veterinary surgeons. However, I have read their evidence so before the Tribunal. Dr van Veenendaal estimated that it would take between 10 and 20 minutes to administer a stomach-tube to a horse. He was asked by counsel whether there are any risks associated with administering a stomach-tube. That question was the subject of objection on behalf of the defendant, on the basis of relevance. The Tribunal Member expressed doubts as to the relevance of the question, but permitted the question to be asked. Dr van Veenendaal stated that the administration of a stomach-tube to a horse did involve a risk of nasal bleeding, but that that does not happen commonly.

61 Dr Faehrmann, in his evidence, stated that there was a risk in administering bicarbonate solution to a horse on race day before a race, because that process might unintentionally raise the TCO 2 level of the horse above the permitted threshold. He also expressed the view that the administration of a stomach-tube could involve a risk of drowning the horse, and could also cause bleeding to the nasal passage. He estimated that it would take about six minutes to stomach-tube a horse.

62 The question, then, is whether the absence of any substance to be introduced to the horse through the stomach-tube, and the evidence of the veterinary surgeons, had the effect that it was not reasonably open to the Tribunal Member to infer, from the evidence, that the plaintiffs intended to stomach-tube the horse before the race. In the concluding paragraph of his reasons, the Member based the inference, as to the intention of the plaintiffs, on the conclusions of fact which he had expressed, and which I have already summarised. Thus, the critical question is whether the combined force of those facts was such that it was open to the Tribunal to conclude, by way of a rational inference, that the plaintiffs intended to stomach-tube the horse, notwithstanding the two matters relied upon by the plaintiffs on this appeal.

63 The two points relied on by the plaintiffs raise a preliminary issue as to whether in fact there was a substance available to the plaintiffs, to administer to the horse via the naso-gastric tube, and as to whether the Tribunal Member made any finding as to that question. The evidence of the second plaintiff was to the effect that bicarbonate of soda was regularly fed to the horse. A one kilogram bag of bicarbonate of soda had been brought with the plaintiffs from Sydney. On the morning of 3 November, there was half a kilogram left in the bag, which was then located in the feed room.

64 There was argument before me as to whether, in those circumstances, the bicarbonate of soda was readily available to the plaintiffs to administer to the horse through the naso-gastric tube. Mr Nash, with some force, contended that, in light of the finding by the Tribunal Member that the first plaintiff was in the process of locking the gate, it could not be concluded that any such substance was available to the plaintiffs in the time leading up to the race.

65 The Tribunal Member did not make any finding of fact in relation to that issue. In the concluding paragraph of his decision, he did state that there was 'time and opportunity' for the plaintiffs to stomach-tube the horse before the race. However, that statement does not, of itself, constitute a finding that there was a substance available, which might be fed to the horse through the tube. In the absence of any such finding, I am prepared to assume, for the purposes of this appeal, that at the relevant time, there was no substance available to the plaintiffs to administer to the horse through a stomach-tube.

66 I return, then, to the critical question whether the combined force of the factual issues, determined by the Tribunal Member, was such that it was open to the Tribunal Member to reasonably draw the inference as to the intention of the plaintiffs to stomach-tube the horse, bearing in mind the obligation of the Tribunal Member to apply the principles stated by the High Court in Briginshaw v Briginshaw concerning the making of such a finding.

67 It must be acknowledged, at the outset, that the two matters, relied on by the plaintiffs, are of some force. In particular, I accept that the absence of any substance, to feed to the horse through the stomach-tube, was a weighty factor in favour of the plaintiffs, which militated against the drawing of the inference that the plaintiffs intended to stomach-tube the horse before the race.

68 Nevertheless, I do not accept the submission by the plaintiffs that it was not open to the Tribunal Member, in any circumstance, to reasonably draw an inference as to an intention to stomach-tube the horse, in the absence of the finding of a substance to introduce to the horse through the stomach-tube. In particular, I do not accept the submission by Mr Nash that a conclusion, as to the existence of such an intention, would not be logical in the absence of the existence of a substance to introduce to the horse through the tube. Ultimately, the question as to whether, notwithstanding the absence of the substance, an inference as to intention is nevertheless established on the balance of probabilities, must depend upon the combined force and weight of the factors relied on by the Tribunal in favour of drawing such an inference. In particular, the question is whether the combined force of those facts is such that, notwithstanding the two points relied on by the plaintiffs, it was open to the Tribunal, by rational inference, to conclude that the plaintiffs did intend to stomach-tube the horse.

69 The first, and most important, fact, found by the Tribunal Member, was that the second plaintiff intentionally took the stomach-tube to the horse's box, 30 minutes before the horse was due on course. The second plaintiff endeavoured to explain the presence of the stomach-tube in the bag on the basis that he mistakenly picked up the wrong bag. That explanation was rejected by the Tribunal Member. It is important to bear in mind that the second plaintiff did not seek to proffer any other 'innocent' explanation for the presence of the naso-gastric tubes in the bag in the horse's box, shortly before the horse was due on course. For example, neither plaintiff suggested - as was put in submissions before me - that the naso-gastric tubes might have been brought to the box in order to enable the horse to be stomach-tubed with a saline drench after the race, so as to prevent the horse becoming dehydrated. The absence of any such 'innocent' explanation given by the second plaintiff, and accepted by the Tribunal, had the effect that the Tribunal Member was entitled, and indeed obliged, to act on the basis of an established fact that the second plaintiff had deliberately brought a stomach tube to the box containing the horse, shortly before the horse was due to depart for the racecourse, without any appropriate explanation being given for the presence of the stomach-tube in the horse's box.

70 I interpolate at this stage that the grounds of appeal also raised an issue as to whether the Tribunal Member proceeded on the basis of a 'consciousness of guilt' line of reasoning. However, in the end, it was common ground that the Tribunal Member did not seek to draw any inference, adverse to the plaintiffs, from his rejection of the explanation given by the second plaintiff, both to Mr Ashby, and in his evidence, for the presence of the stomach-tube in his box. Rather, for the purpose of analysis, the important point is that the Tribunal Member was satisfied that the second plaintiff had deliberately brought the stomach-tube to the box of the horse, shortly before it was due on course, and that there was no acceptable explanation for the second plaintiff having done so.

71 Pausing there, and standing alone, that fact, of itself, was a powerful circumstance in favour of drawing an inference that the naso-gastric tube had been brought to the horse's stall for the purpose of stomach-tubing the horse. Logically, the purpose of a naso-gastric tube is to stomach-tube a horse. There was no other reason why the stomach-tube would be brought to the horse's stall. No other explanation was given by the plaintiffs for its presence there. The conveying of a stomach-tube to the box of a horse, prima facie, is a sound starting point for the drawing of an inference in favour of an intention by the second plaintiff to stomach-tube the horse.

72 That fact, of course, was not the sole support for the finding by the Tribunal Member. In addition, the Member found that the first plaintiff said to the second plaintiff, when he was stationed at the gate, that 'I'll call you if there's any trouble'. At about the same time the first plaintiff was proceeding to lock the gate with a padlock. There was no logical reason for the first plaintiff to lock the gate at that point. On the contrary, as the horse was shortly due on the course, it would be illogical to lock the gate, unless there was some other important reason to do so. Further, at about that time, the first plaintiff was observed to give a hand signal to the second plaintiff.

73 The case, in respect of the intention of the two plaintiffs, was essentially a circumstantial case. The task of the Tribunal Member was to consider the combined weight and force of those facts working together, and not in isolation from each other.[21] Taken together, those four facts were a strong basis upon which the Tribunal Member was entitled to infer that the first and second plaintiffs were acting in combination to stomach-tube the horse before the race. The case made on behalf of the defendant, before the Tribunal, was that the two plaintiffs were acting in combination. There was at least a prima facie basis for such a conclusion. Thus, it was not in issue before the Tribunal, or on appeal, that the actions and conduct of each of the plaintiffs, in pursuance of that joint combination, might be used as evidence to prove the participation by the other plaintiff in the joint enterprise.[22] In those circumstances, there was a strong basis upon which the Tribunal Member might reasonably conclude, as a matter of inference, that it was the intention of each of the two plaintiffs that the second plaintiff stomach-tube the horse.

74 As I have already stated, I acknowledge that the absence of a substance to introduce through the naso-gastric tube, was a weighty factor militating against the drawing of such a conclusion. I also acknowledge that the evidence of the two veterinary surgeons, as to the risks associated with stomach-tubing a horse, was relevant as bearing on the probabilities as to the existence of the joint agreement and intention of the plaintiffs to stomach-tube the horse. However, ultimately, those two facts do not logically preclude the drawing of an inference, on the balance of probabilities, as to the existence of an intention by the plaintiffs to stomach-tube the horse, taking into account the principles stated by the High Court in Briginshaw v Briginshaw. For those reasons, I do not accept that it was not open to the Tribunal Member to rationally infer, on the balance of probabilities, that the two plaintiffs intended to stomach-tube the horse before the race. Thus, I reject the submission made on behalf of the plaintiffs that the Tribunal Member erred in concluding, by way of inference, that the plaintiffs had an intention to stomach-tube the horse. It follows that ground 4 of the Notice of Appeal should fail.**

**75 The third principal submission, advanced on behalf of the plaintiffs, was that the Tribunal Member erred in failing to take into account the evidence of the two veterinary surgeons, Dr van Veenendaal and Dr Faehrmann, without giving any adequate reason for doing so. That submission addresses ground 6(a) of the Notice of Appeal, which alleges that the Tribunal erred in failing to provide adequate reasons for the Tribunal 'disregarding' the evidence of Dr van Veenendaal and Dr Faehrmann. In the plaintiffs' written submissions, it was argued that the finding by the Tribunal, of the intention of the plaintiffs to stomach-tube the horse, was reached by the Tribunal contrary to the 'uncontradicted, inherently reasonable evidence' of the two veterinary surgeons.

76 I do not accept the proposition that the conclusion by the Tribunal Member, as to the intention of the two plaintiffs to stomach-tube the horse, was contrary to the evidence of the two veterinary surgeons. The evidence of those two witnesses was relevant, and, as I have already indicated, it bore on an assessment of the probabilities as to whether the plaintiffs intended to stomach-tube the horse. However, that evidence was not, of itself, such as to logically preclude a conclusion by the Tribunal Member as to the existence of an intention by the plaintiffs to stomach-tube the horse.

77 The evidence of the veterinary surgeons was relevant, and it was uncontradicted. As such, if the Tribunal Member disregarded it, he was obliged to give proper reasons for doing so.[23] However, the plaintiffs have not established that the Tribunal Member disregarded the evidence. In his reasons, the Tribunal Member stated that he had read and considered the evidence, including the evidence of the two veterinary surgeons. The Member stated that it was unnecessary for him to refer to that evidence although he had not 'disregarded the relevant parts of that evidence'.

78 As I stated, the evidence of the two veterinary surgeons did not logically preclude the drawing of an inference that the plaintiffs intended to stomach-tube the horse. Thus, the conclusion by the Tribunal Member, to that effect, does not mean that he must have disregarded the two veterinary surgeons' evidence. Rather, as I have stated, the Tribunal Member, in his reasons, recorded that he had not disregarded the relevant parts of that evidence. For those reasons, ground 6(a) of the Notice of Appeal is not made out.**

The finding of a conspiracy between the plaintiffs

**79 Grounds 5(a) and (b) of the Notice of Appeal alleged that there was no findings of fact from which the Tribunal could conclude that the two plaintiffs agreed with each other to administer a substance to the horse in breach of the Australian Rules of Racing. Those grounds were not addressed by Mr Nash in oral submissions. However, in their written outline, the plaintiffs' counsel submitted that the evidence before the Tribunal was insufficient for a finding that the plaintiffs conspired to stomach-tube the horse. In particular, it was submitted that, in the absence of direct evidence of an agreement between the plaintiffs, and in the absence of any finding that the horse had been stomach-tubed, there was insufficient evidence upon which to find that such a conspiracy had taken place.

80 The Tribunal Member based his finding, as to the existence of the conspiracy, on the evidence of the first plaintiff, in cross-examination, that he would not allow the second plaintiff to do anything to the horse without his permission, and that anything done to the horse by the second plaintiff would have been done with the first plaintiff's consent, and on the like concession by the second plaintiff, in cross-examination, that he would not treat or stomach-tube the horse without first discussing it with the first plaintiff.

81 I agree with the submission by the plaintiffs that those facts, alone, would be insufficient to found a conclusion as to the existence of a conspiracy between the two plaintiffs to stomach-tube the horse. However, those two concessions, in cross-examination, did not stand alone. The Tribunal Member then made the five findings of fact to which I have referred. Based on those findings, the Tribunal Member was satisfied as to the existence of the intention of the two plaintiffs that the horse be stomach-tubed. In that context, the first plaintiff's concession, that the second plaintiff would not proceed to stomach-tube the horse without his permission, was, in my view, a sufficient basis upon which to make a finding against the first plaintiff that he was involved in an agreement with the second plaintiff to stomach-tube the horse. Likewise, the concession by the second plaintiff, that he would not stomach-tube the horse without first discussing it with the first plaintiff, was sufficient to justify a finding that the second plaintiff had conspired with the first plaintiff to stomach-tube the horse.

82 Further, the Tribunal would have been justified in inferring the existence of a conspiracy from the facts found by it, and in particular, from the combined effect of: the fact that the first plaintiff deliberately took the naso-gastric tubes to the box in which the horse was located; the statement by the first plaintiff that he would 'Call you if there's any trouble'; the actions of the first plaintiff in commencing to padlock the gate to the stables; and the hand signal given by the first plaintiff to the second plaintiff. Those actions, taken together, bespoke the existence of a common purpose between the two plaintiffs. The concessions made by each of the plaintiffs in cross-examination, to which I have just referred, would reinforce a finding as to such a common purpose between the plaintiffs.

83 For those reasons, I reject the submissions made in respect of ground 5(a) and (b) of the Notice of Appeal.**

The finding of attempt against the second plaintiff

**84 Ground 3 of the Notice of Appeal alleges that the Tribunal failed to direct itself in relation to the requirement that to constitute an attempt an act must be 'sufficiently proximate'. Ground 5(c) of the Notice of Appeal alleges that there were no findings of fact from which the Tribunal could conclude that the second plaintiff attempted to administer a substance to the horse in breach of the Australian Rules of Racing. Those grounds of appeal were not the subject of oral submissions on behalf of the plaintiffs. However, in their written outline, the plaintiffs' counsel submitted that the actions of the second plaintiff were not sufficiently proximate, to the completed offence of stomach-tubing the horse, to constitute an attempt. In particular, it was submitted that those actions did not go beyond steps which were merely preparatory to the commission of that offence.

85 At common law, it is well established that, in order to constitute an attempt to commit an offence, the accused must have carried out acts which were more than merely preparatory to the commission of the offence, and which were immediately and not remotely connected with the commission of that offence.[24] Those principles have been expressly incorporated in s 321N(1) of the Crimes Act 1958.

86 The question, whether the actions of an accused person were sufficient to constitute an attempt, and in particular whether those actions were sufficiently proximate to the completion of the offence to constitute an attempt, is a question of fact.[25] Thus, in order to succeed on ground 5(c), the plaintiffs must demonstrate that the Tribunal could not reasonably conclude that the actions of the second plaintiff were sufficiently proximate to the completed offence of stomach-tubing the horse as to constitute an attempt to commit that offence.

87 The actions of the second plaintiff, which were alleged to have been an attempt to commit the offence of stomach-tubing the horse, were constituted by his taking the two naso-gastric tubes, and other equipment, in a bag to the horse's box, a short time before the horse was due on course, with the intention of stomach-tubing him with that equipment. At that time the second plaintiff was acting in combination with the first plaintiff, who was proceeding to lock the gate to the stables. The critical question is whether, in that context, the actions of the second plaintiff could reasonably be characterised as being more than merely preparatory to the commission of the offence of stomach-tubing the horse, and to be immediately and not remotely connected with the commission of that offence.

88 In considering that question, it must be readily acknowledged that the line between actions which are merely preparatory in nature, and actions which might be properly described to be proximately connected with the commission of the offence, is not clear cut. In an often cited passage, Salmond J, in R v Barker,[26] stated:**

All that can be definitely gathered from the authorities is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. The dividing line between preparation and attempt is to be found somewhere between these two extremes; but as to the method by which it is to be determined the authorities give no clear guidance.

**89 The point made by Salmon J is well borne out by a comparison of cases, in which an attempt to commit a crime has been established,[27] with cases in which an attempt has not been proven.[28]

90 Ultimately, the question whether the actions of the second plaintiff went beyond mere preparation, and were sufficiently proximate to the commission of the completed offence, does involve an exercise of judgment by the Tribunal of fact. It follows that in forming that judgment, the Tribunal would only have made an error of law, if the conclusion reached by it was one not reasonably open on the evidence.

91 Bearing in mind those principles, I am not persuaded that the finding by the Tribunal Member, that the second plaintiff was guilty of attempting to stomach-tube the horse, was a finding which was not open to the Tribunal Member in the circumstances. Certainly, reasonable minds might respectively differ as to whether the actions of the second plaintiff were sufficient to be properly characterised as being so proximate to the commission of the offence as to constitute an attempt to commit it. However, it is not for this Court to substitute its own view for the conclusion reached by the Tribunal. On the Tribunal's findings of fact, the second plaintiff had brought the naso-gastric tubes to the horse's box, shortly before it was due on course, with the specific intention of stomach-tubing it. The first plaintiff was in the process of locking the stable gate, when the stewards intervened. Given those findings of fact, I am not persuaded that the Tribunal Member erred in law in reaching the conclusion that the second plaintiff's actions were sufficient to constitute an attempt to commit the offence of stomach-tubing the horse.**

**92 It follows that the plaintiffs have not succeeded in establishing any of the grounds contained in the proposed Notice of Appeal, although I do consider that some of the proposed grounds were sufficiently arguable to justify the grant of leave to appeal, notwithstanding that, after full argument, none of the grounds have succeeded.[29]

93 Accordingly, I shall grant the plaintiffs leave to appeal from the orders of the Victorian Civil and Administrative Tribunal made on 22 April 2013 and 14 May 2013. I shall direct that the appeal be heard instanter. I further order that the appeal be dismissed.**

[1] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[2] [1997] 1 VR 127.

[3] [2006] VSCA 70; (2006) 15 VR 150.

[4] [1938] HCA 34; (1938) 60 CLR 336.

[5] Haughton v Smith [1975] AC 476, 492 (Lord Hailsham).

[6] [1938] HCA 34; (1938) 60 CLR 336; see also Evidence Act 2008 (Vic) s 140(2).

[7] [1940] HCA 20; (1940) 63 CLR 691.

[8] [1965] HCA 46; (1965) 112 CLR 517.

[9] (1959) 33 ALJR 521.

[10] [1992] HCA 66; (1992) 110 ALR 449.

[11] [1938] HCA 34; (1938) 60 CLR 336, 362.

[12] [1938] HCA 34; (1938) 60 CLR 336, 368-9; see also at 343 (Latham CJ), 350 (Rich J).

[13] [1940] HCA 20; (1940) 63 CLR 691.

[14] [1940] HCA 20; (1940) 63 CLR 691, 696 (Rich J), 701 (Starke J), 712-13 (Dixon, Evatt and McTiernan JJ); see also Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 232-3 (Mahoney JA); Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156, 174.

[15] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 450.

[16] (1997) 1 VR 215.

[17] [2006] VSCA 70; (2006) 15 VR 150.

[18] See also Holloway v McFeeters [1956] HCA 25; (1956) 94 CLR 470, 480-481 (Williams, Webb, Taylor JJ).

[19] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89 (Phillips JA); Savage v Crimes Compensation Tribunal [1990] VicRp 9; [1990] VR 96, 99 (McGarvie, Beach and Hampel JJ).

[20] S v Crimes Compensation Tribunal [1998] 1 VR 83, 91; Myers v Medical Practitioners' Board [2007] VSCA 163; (2007) 18 VR 48, 60 [48] (Warren CJ); Tracy Sports Village & Social Club v Walker (1992) 111 FCR 32, 37-8 (Mildren J); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 (Mason CJ); cf R v Cengiz [1998] 3 VR 720, 735 (Harper AJA); Case stated by DPP (No 2 of 1993) [1993] SASC 4152; (1993) 70 A Crim R 323, 327 (King CJ).

[21] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 128; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535 (Gibbs CJ, Mason J); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 580-581 (Dawson J).

[22] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7; Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 94-95.

[23] Hardy v Gillette [1976] VicRp 36; [1976] VR 392, 395-6.

[24] Haughton v Smith [1975] AC 476, 492 (Lord Hailsham); Director of Public Prosecutions v Stonehouse [1978] AC 55, 68 (Lord Diplock); R v Mai (1992) 26 NSWLR 371, 381-2 (Hunt CJ at CL); Park v The Queen [2010] NSWCCA 151; (2010) 202 A Crim R 133, 143 [46] (McClellan CJ at CL).

[25] Director of Public Prosecutions v Stonehouse [1978] AC 55, 79-80 (Lord Salmon); 87-88 (Lord Edmund-Davies), 94-95 (Lord Keith); See also Situ v The Queen [2008] NSWCCA 161, [28] (McClellan CJ at CL); Susak v The Queen [1999] NTSC 61; (1999) 105 A Crim R 592, 595 [13] (Riley J); Nicholson v The Queen (1994) 76 A Crim R 187, 194 (Underwood J).

[26] (1924) NZGLR 393, 397-398; see also R v Williams, ex parte The Minister for Justice and Attorney-General [1965] Qd R 86, 101-102 (Stable J); R v De Silva [2007] QCA 301, [20] (Jerrard JA); Nicholson v The Queen (1994) 76 A Crim R 187, 191 (Underwood J).

[27] E.g. R v Page [1933] VicLawRp 57; [1933] VLR 351; R v Jones [1990] 1 WLR 1057; R v Williams; ex parte Minister for Justice (Qld) [1965] Qd R 86; Nicholson v The Queen (1994) 76 A Crim R 187; Henderson v The Queen [1948] SCR 226; [1949] 2 DLR 121.

[28] E.g. R v Chellingworth [1954] QWN 35; R v Gullefer [1990] 1 WLR 1063; R v Robinson [1915] 2 KB 342.

[29] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, 335 (Phillips JA).