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[2016] ACTSC 273
Supreme Court of the ACT
2016-09-06
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
PROCEDURE - CRIMINAL LAW - Adjournment of trial - adjournment for psychiatric evaluation - assessment of the defendant's mental state - defendant exhibiting potential symptoms of mental illness - potential difficulty in providing counsel instructions - potential lack of understanding of trial process - possible question of fitness to stand trial - fitness to plead - real or substantial question about fitness to plead - determination of fitness to plead
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 11
Kesavarajah v The Queen (1994) 181 CLR 230
Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1
R v Dashwood [1943] KB 1
R v DM (2011) 253 FLR 349
R v Dunn [2015] 2 Qd R 407
R v Khallouf [1981] VicRp 38; [1981] VR 360
R v Monaghan [2009] ACTSC 61
R v Presser [1958] VicRp 9; [1958] VR 45
R v Taylor (1992) 77 CCC (3d) 551
SM v The Queen [2011] VSCA 332; (2011) 33 VR 393
Legal Aid ACT (Accused)
1. On 17 March 2015, Saba Al-Mdwali died apparently from multiple stab wounds. Her husband, Maged Mohommed Al-Harazi, the accused, has been charged with her murder.
2. A trial is listed to commence on 7 September 2016, and the estimated time for the trial is six weeks.
3. In August 2016, the Court was given notice that there may be an issue as to the fitness of Mr Al-Harazi to plead to the indictment. As Gaudron J explained in Eastman v The Queen (2000) 203 CLR 1 at 21-2; [62]:
If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead or if that issue is not determined in the manner which the law requires, 'no proper trial has taken place [and the] trial is a nullity' [R v Begum (1985) 93 Cr App R 96 at 100, Watkins LJ]. To put the matter another way, there is a fundamental failure in the trial process.
4. Accordingly, the question of a person's fitness to plead or otherwise is a most important and serious matter that cannot be ignored nor overlooked. See also R v Dashwood [1943] KB 1 at 4.
5. For an accused to be fit to plead is for the accused to be able to appropriately participate in the criminal trial which is held to determine whether the accused person is guilty or not guilty of a count or counts on the indictment with which he or she is charged.
6. The law presumes that an accused person is fit to plead: s 312(1) of the Crimes Act 1900 (ACT). Under s 312(2), that presumption is only rebutted if it is established by investigation under Div 13.2 of the Crimes Act that the person is unfit to plead.
7. Section 311 of the Crimes Act defines when a person is unfit to plead as follows:
(1) A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot -
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) give instructions to the person's lawyer.
(2) A person is not unfit to plead only because the person is suffering from memory loss.
8. That test is one established by the Supreme Court of Victoria in R v Presser [1958] VicRp 9; [1958] VR 45 at 48 and adopted by the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 at 245, but has now been enshrined in legislation in this Territory.
9. The investigation as to whether a person is fit to plead as referred to in s 312(2) of the Crimes Act has not commenced in this case. Such an investigation is commenced only when a Court is satisfied under s 314 that there is "a real and substantial question about [the accused's] fitness to plead" and, if the Court is so satisfied, it must reserve that question for investigation.
10. Once that question is reserved for investigation, the Court must, under s 315 of the Crimes Act adjourn the trial and may take other steps set out in the section. The investigation then proceeds under s 315A of the Act. Unlike the position in some jurisdictions, the investigation is conducted by a judge alone and not by a jury (cf s 11 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)).
11. Section 315A of the Crimes Act, under which the investigation is conducted, is in the following terms:
315A Investigation into fitness to plead
(1) On an investigation into a defendant's fitness to plead -
(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
(b) if the court considers that it is in the interests of justice to do so, the court may -
(i) call evidence on its own initiative; or
(ii) require the defendant to be examined by a psychiatrist or other health practitioner; or
(iii) require the results of the examination to be put before the court.
(2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant's privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.
(3) The court must decide whether the defendant is unfit to plead.
(4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.
12. It is clear that there are two important stages of this process: the determination by a judge of whether there is a real and substantial question about the fitness to plead of Mr Al-Harazi and the determination, also by a judge, of whether Mr Al-Harazi is, in fact, fit to plead. It is, as observed by the Full Court of the Supreme Court of Victoria in R v Khallouf [1981] VicRp 38; [1981] VR 360 at 364, important to keep the two issues separate.
13. As Margaret McMurdo P said in R v Dunn [2015] 2 Qd R 407 at 429; [63], the first issue is:
[t]he question ... not whether ... the accused was not fit to plead, but whether there was a question as to the accused's fitness.
14. Thus, the first issue is whether there is a real and substantial question about Mr
Al-Harazi's fitness to plead. The wording of the statutory provision is important: the question is whether "there is a real and substantial question about [the accused's] fitness to plead". That is to say, the legislation has chosen to use the wide term "about" and not, for example, to use "as to whether" the accused is fit to plead.
15. The clear implication of s 315A of the Crimes Act is that the material that is sufficient for a court to find that there is a real and substantial question about the fitness to plead of an accused will not necessarily be sufficient to determine that the accused is actually unfit to plead. Were that not so, it is difficult to see the necessity for the two stage process established by the legislation.
16. On the other hand, it is clear that there are good reasons for the kind of sifting requirement that the first test, of a real and substantial question, requires.
17. If the Court is satisfied that there is such a question then, the trial must be adjourned so that the question can be investigated and the Court has no option: R v Monaghan [2009] ACTSC 61 at [11].
18. In s 10(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW), the first test is put somewhat differently: there it is required that the question raised appears to the Court in good faith. In reference to this test, Kirby J, with whom Grove J agreed, in Tier [2001] NSWCCA 53; (2001) 121 A Crim R 509 at 521; [71], in terms, however, relevant to the question under s 314 of the Crimes Act, said as follows:
The exception provided by s 10(2) recognises that inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed (and is provided, by s 10(2)) for the trial judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the court that the question has not been raised in good faith (s 10(2)). It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process (cf Dunford J, Zhang at [29]). Conversely, where there is a real and substantial question good faith will be presumed.
19. The question then is as to the meaning of "a real and substantial question". It is reasonable to accept, in relation to the meaning of "real", that what Kirby J said in Tier, as did Sheller JA in the same case at 511; [4], namely that a question is raised in good faith, or, as Sheller JA additionally suggested, "genuinely" or "on the basis of a belief honestly held", are useful guides to the meaning of the term "real".
20. Again, it is important to recognise that the question is not whether the accused is fit to plead but rather whether there is a question about that. This is because, as pointed out by Kirby J in Tier at 522; [72], the issue will often be raised by a legal practitioner. Such a person will ordinarily have no training or expertise in psychiatry or psychology to justify an opinion on that issue, but will, for example, have had difficulty in obtaining instructions.
21. As to the need for the question to be substantial, there is no clear answer on the authorities and, indeed, what Kirby J said in Tier seems to apply to the whole phrase "real and substantial question". Substantial means according to the Macquarie Dictionary a range of things, including "of ample or considerable amount" when referring, for example, to "a substantial sum of money". In my view, however, the meaning ascribed in that Dictionary to the word when used, for example, in reference to "substantial reasons" is more appropriate, namely "of real worth or value".
22. In Kesavarajah v The Queen at 245, Mason CJ, Toohey and Gaudron JJ, repeating a phrase from Ngatayi v The Queen [1980] HCA 18; (1980) 147 CLR 1 at 9, said:
[I]t cannot be doubted that, in the context of s 393 [of the Crimes Act 1958 (Vic)], '[o]nce a real question as to incapacity is raised, the judge must follow the procedure raised in the section'. Sometimes the test has been stated in terms of whether there is a reason to doubt the accused's fitness to stand trial. However, the judge should leave the issue to be tried by the jury unless no reasonable jury, properly instructed, could find that the accused was not fit to be tried.
23. This approach was followed in Eastman v The Queen by Gaudron J at 23; [66]. In the same case, Hayne J said at 98; [295]:
In the great majority of cases, no question of fitness arises. But if it does, the question for a trial judge is whether the accused may not be fit to plead or stand trial. Only if affirmatively satisfied that the tribunal which is responsible for determining the fitness of the accused (in many jurisdictions a jury empanelled to determine the question but in the Australian Capital Territory a statutory tribunal) could not reasonably find that the accused was not fit to stand trial, may the trial proceed. (emphasis in original)
24. There is some difficulty with this test, for it suggests that there must be evidence on which the relevant body charged with determining fitness or unfitness to plead could make such a finding, but I am not convinced that this is what is meant. That would be inconsistent with the process where the statute provides for a real investigation which, most particularly, may require an order requiring an accused to be examined by a psychiatrist or other health professional to be undertaken after the determination of whether there is a real and substantial question. It is usually necessary for such expert evidence to be available before a finding of unfitness to plead can be made.
25. What must be meant is that the material before the Court on the issue of whether there is a real and substantial question about the accused's fitness to plead must be such that no such question arises only if it would not be possible for the body charged with determining whether the accused is fit to plead to have a reasonable doubt about the accused's fitness to plead.
26. This is consistent with what Gibbs, Mason and Wilson JJ said in Ngatayi v The Queen at 9, as follows:
Once a real question as to incapacity is raised, the judge must follow the procedure laid down in the section. If counsel raises an issue of incapacity he should indicate the nature of the facts which in his submission will support the view that the accused is incapable of understanding the proceedings so as to be able to make a proper defence. The judge should then leave the issue to the jury unless on the facts as stated no reasonable jury, properly instructed, could find that the accused was not capable of understanding the proceedings so as to be able to make proper defence.
27. Here, no question of psychiatric opinion or psychological report is required before the matter is reserved and, in that case, referred to the jury to determine the issue.
28. Mr Al-Harazi, his wife and children are from Yemen. They came to Australia in 2007. In 2008, however, the family returned to Yemen. It was submitted by the Crown that Mr Al-Harazi wanted to live in Yemen; his wife's family, however, were in Australia. Mr Al-Harazi and his family only stayed in Yemen for a short time and then returned to Australia. Mr Al-Harazi returned to Yemen from time to time but the family returned there in early 2012. They came back to Australia in early 2014.
29. It appears that, while he was in Yemen, Mr Al-Harazi consulted a psychiatrist, Dr Khulaidi, for treatment for delusions. A copy of a report was to be sought but I have not seen one.
30. The matter was raised before me because counsel expressed concern about the ability of Mr Al-Harazi to give instructions. This was complicated because Mr Al-Harazi's English was not good and all conferences with counsel had to be conducted with the help of an interpreter.
31. Counsel had concerns also about the level of Mr Al-Harazi's understanding of the trial process as he saw signs that Mr Al-Harazi had quite a distorted view of the trial process.
32. As a result of these concerns, Mr Al-Harazi's legal representatives had attempted to involve psychiatrists, but Mr Al-Harazi resisted. He vigorously asserted that he was not mentally unwell and he was keen for the trial to proceed on the allocated dates.
33. Dr Steven Allnutt, an experienced forensic psychiatrist, had, however, been able to examine Mr Al-Harazi. He interviewed him for about three hours and noted what he called "a number of inconsistencies" including:
variable presentation since his arrest (at times reporting psychotic symptoms and other times not); observations of others (others who speak his language, have viewed him as mentally unwell); and lack of clarity of diagnosis (mental health professionals have not made a definitive diagnosis).
34. He also found interviewing through an interpreter to be very difficult and problematic. He did not come to a conclusion about Mr Al-Harazi's fitness to plead. He said in the letter, admitted into evidence:
For these reasons, while I am suspicious that he might have a mental illness but I am unable to be definitive at this stage.
At the time he saw me he presented as tangential but re-directable. He provided reasonable responses to questions that pertained to Presser but I was concerned about his understanding of the consequences of a trial - he seemed to think that the consequences would be less serious (I was unsure whether this was cultural or due to mental illness or both), but at that stage on balance, at the time that I saw him, I thought his perspective about the consequences of a trial was cultural.
I note that in a telephone conversation with me on 12 August 2016, you raised concern about his fitness to stand trial and that you believed his mental state had deteriorated.
For these reasons I would prefer a further opportunity to reassess him prior to concluding my opinions.
35. Since then, Mr Al-Harazi has been placed, on 15 June 2016, in The Canberra Hospital for a mental health assessment. It was anticipated that he would be there for 14 days to permit him to be seen over a reasonably extended period of time but he was in fact discharged on 20 June 2016 without that opportunity having been taken.
36. Dr Allnutt strongly recommended that an Arabic-speaking psychiatrist should examine Mr Al-Harazi and, in conjunction with such a person, would provide further advice.
37. A psychiatrist, a Professor at the University of Wollongong, Dr Burhan, has been identified. He speaks Arabic and is a specialist in schizophrenia. He can, however, only see Mr Al-Harazi on 16 September 2016 but is expected to have a report available by 19 September 2016.
38. While he has been in the Alexander Maconochie Centre, Mr Al-Harazi has been subject to a number of investigations by mental health professionals.
39. It is not necessary to detail each of the findings in the various notes that were subpoenaed by the Crown from the Alexander Maconochie Centre and exhibited to an affidavit filed and read by the Crown.
40. Thus, in March 2015 it was recommended that Mr Al-Harazi be placed on medication and be monitored for perceptual and cognitive abnormalities and for a further neuropsychological investigation when appropriate. It is not clear whether any such neuropsychological investigation was in fact conducted.
41. Later he appeared distressed and was again reviewed, but he is reported not to have shown any symptoms of a psychotic disorder.
42. In September 2015, he was examined by a psychiatrist who reported that he could not identify any mental illness. I interpolate that, of course, a diagnosable mental illness is not a pre-condition to a finding of unfitness to plead. See Eastman v The Queen at 21; [59] and R v DM (2011) 253 FLR 349. It was reported also that his difficulties in adjustment to custody had appeared to have resolved.
43. He was able to discuss with the psychiatrist issues of the trial, including whether he had killed his wife and if not, who had done so. It was not clear however, whether these were rational answers, although they appeared to be. He remained on medication.
44. He was again interviewed by a psychiatrist in January 2016. He refused to discuss his beliefs that he was being punished because of matters that he would not disclose. He confirmed that he had seen a psychiatrist in Yemen because he had disclosed "revelations from God". He said he was given medication but no diagnosis nor follow up.
45. Certain notes of other examinations were also included in the subpoenaed notes which suggested that Mr Al-Harazi's brother had reported, in the previous six to eight months, that Mr Al-Harazi had been reporting delusions which included that "God had told him things and that God had - would kill his children". There were also suggestions in those notes that Mr Al-Harazi was said by a fellow detainee, who appears to be of Arabic extraction, to have told him that he, Mr Al-Harazi, had mental health problems since childhood in Yemen and while being in Saudi Arabia. He is said to talk to himself and yell.
46. Mr Al-Harazi, however, explained that he talks to himself because he is lonely and admits that he did hear God's voice, but that it was in a normal religious context.
47. The psychiatrist's report, however, found no evidence of psychotic symptoms during the interview. There was no suggestion of self-harm or suicidal ideation.
48. He was again examined in June 2016, presumably in The Canberra Hospital in the admission to which I have referred above (at [35]). He showed no apparent psychosis and was able to tolerate an interview of 50 minutes. Of course, Dr Allnutt had interviewed him for three hours. There was reported, however, no evidence of pervasive mood disorder.
49. There were further assessments during this time and comprehensive nursing observations. No psychiatric illness was found and there was no evidence of psychiatric illness or pervasive mood disorder.
50. It was also stated by the psychiatrist that, on discharge from The Canberra Hospital, Mr Al-Harazi had "demonstrated good understanding of [the] trial process".
51. The recordings of telephone conversations with Mr Al-Harazi and his brother in Yemen were also kept and translated. They showed that Mr Al-Harazi was able to discuss his court proceedings and his response to the charges laid. He was aware of the process of appeal should he be convicted. I was told that these telephone conversations were held in April 2015.
52. Another significant factor is that a delay in the trial will bring significant issues. In the first place, there are a number of witnesses who, the evidence is, will be compromised in their ability to attend a delayed trial because of overseas or other commitments. The Court itself is challenged as to when it could accommodate a delayed or deferred trial. These matters should not predominate, but I am satisfied that they must be taken into account. Another factor is Mr Al-Harazi's wish to continue with the trial and to maintain the current trial date.
53. The Crown submitted that there was no real or substantial question as the notes from the Alexander Maconachie Centre and other records showed that on each of the criteria set out in s 311(1) of the Crimes Act, Mr Al-Harazi was not unfit to plead. A careful analysis of each by reference to that material was carried out in submissions made to me. It was said in summary:
54. There is in this case a stark problem. On the one hand, there is a history of recent psychiatric examinations and observations of Mr Al-Harazi which show no diagnosis of psychiatric illness and some evidence of him meeting the criteria for being fit to plead.
55. On the other hand, there are significant suggestions of a longer-term history of mental illness, of some delusions, a recently asserted deterioration of Mr Al-Harazi's condition, a refusal by an experienced forensic psychiatrist to opine that Mr Al-Harazi is fit to plead and an unchallenged and confident assertion by Mr Al-Harazi's legal representatives of difficulties in matters of instructions, which give rise to the question of whether he is fit to plead.
56. I note that none of the psychiatric examinations of Mr Al-Harazi while in custody have been directed to the question of whether he is fit to plead. That was specifically what Dr Allnutt was tasked to assess. I also accept that a person's fitness to plead can change over time; indeed, the authorities make it clear that it can fluctuate during a trial itself. That, of course, brings its own challenges in the light of the stringency of s 315 of the Crimes Act.
57. While there has been an apparent psychiatric history, which was reported by relatives and associates of Mr Al-Harazi, and which was of concern to Dr Allnutt, there is little hard evidence of that, but it cannot be discounted entirely.
58. Dr Allnutt's view was challenged by the Crown as being an inadequate basis for there being a real and substantial question about Mr Al-Harazi's fitness to plead. I accept that he has not expressed a view and so it could not be said that, in itself, this shows a likelihood that Mr Al-Harazi is unfit to plead. It is important, however, that Dr Allnutt has declined to express a view and that this relies on uncertainty about cultural issues, the presentation since Mr Al-Harazi's arrest, the history of mental health at that time, especially as, despite finding no psychosis, medication has been prescribed with no reported differential or definite diagnosis, the reports of associates of prior mental illness, and the description by his legal representatives of some deterioration and Mr Al-Harazi's acknowledgement of the investigation in Yemen as to his mental illness. These form a rational basis for Dr Allnutt's doubt.
59. I am mindful of the need to take a robust and practical approach to the issue. I note, in particular, that Gleeson CJ in Eastman v The Queen at 14-15; [26], repeated with approval what the Ontario Court of Appeal said in R v Taylor (1992) 77 CCC (3d) 551 at 564-5, namely:
(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.
(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render the person unfit to stand trial;
(d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.
60. I also take seriously, as the authorities make clear I should, the assertion of counsel as to the issues confronting them.
61. I have re-read the Alexander Maconachie Centre mental health records. I have carefully considered the Crown's submissions. I have pondered over Dr Allnutt's letter and counsel's assertions.
62. In the end, I have a genuine doubt about whether Mr Al-Harazi is fit to plead. I cannot say, however, that, on the material I have seen, a court would be unreasonable if, on the material before me, it held that Mr Al-Harazi was in actuality fit to plead.
63. I accept that there are real difficulties with any delay of the trial which must be taken into account.
64. I have found considerable assistance in the approach taken by the Victorian Court of Appeal in SM v The Queen [2011] VSCA 332; (2011) 33 VR 393.
65. There, the trial judge was asked to adjourn a trial so that counsel's concern that the accused was unfit to plead might be explored. The application was made on the first day of the trial. The trial judge refused the application on the ground that the information placed before him was (at 399; [26]):
extremely vague, had no evidentiary foundation and was more in the manner of an application to adjourn to explore matters that could and should have been explored well before the matter came before [him].
66. The Court of Appeal held that his Honour was in error. The information that was before his Honour was described by the Court of Appeal at 399; [25], as follows:
Assertions from the bar table including submissions from highly experienced counsel: expressing serious concerns regarding the appellant's general ability to give instructions; relaying the professional opinion of the appellant's treating physician that it was prudent to arrange an assessment of the appellant's mental condition by a forensic psychiatrist before trial; and conveying general information that the appellant suffered from mental illness including schizophrenia and was prescribed anti-psychotic medication.
67. The Court of Appeal further addressed the assertion by the trial judge of the perceived weakness of the information saying (at 399; [27]):
Putting to one side the lateness in bringing the application, to the extent that the absence of material supporting the assertions was important, his Honour could have obtained such material through a number of avenues. The trial judge could have required affidavits of viva voce evidence from the appellant's instructing solicitor - who had also spoken with the appellant's treating physician on the morning of the application and shared counsel's concerns about the appellant's fitness, or required the appellant's treating physician to testify on the appellant's history of mental illness and the professional view he had conveyed to counsel that the appellant be assessed before trial.
(Footnotes omitted)
68. I could have taken this course. I was satisfied that the material before me, however, was sufficient without having to go further along that route.
69. The Court of Appeal considered at 398; [23], that the refusal of the trial judge to adjourn so as to permit the question to be explored was wrong given that the adjournment was required to deal with the question of "whether or not there was risk, likelihood or threat that an injustice would result from the refusal of the adjournment at the time of the application". That was because, of course, if the trial proceeded there would be a miscarriage of justice and a fundamental failure of the trial process if it turned out that the accused was ultimately unfit to plead as was found in fact in that case.
70. I cannot ignore counsel's concerns, especially as to his ability to obtain instructions. I cannot dismiss Dr Allnutt's doubt based, as it is, on evidentiary material and not on speculation. I have a real doubt about whether Mr Al-Harazi might be found fit to plead.
71. In my view, the trial should not begin until a proper psychiatric examination has been conducted and the results considered.
72. My doubt may not meet the test of being a real and substantial question as required, and I confess to some hesitation in the light of the formulation of that test in Eastman v The Queen, though other authorities would seem to hold that it would meet that test; such a doubt as expressed by me would be sufficient. I do not have finally to resolve that issue. If it does meet that test, however, the trial must be adjourned.
73. If it does not, then it seems to me that, in the particular circumstances of this case, as in the case of SM v The Queen, the trial must be adjourned to explore whether there is a real risk of a trial that would be a miscarriage of justice.
74. That could be addressed by a psychiatric report which would be the basis of finding that there was a real and substantial question about Mr Al-Harazi's fitness to plead and that the reservation of the trial and the following investigation could then be carried out. It may be that the report itself will make that relevantly clear.
75. Accordingly, the trial must be adjourned, but I shall hear the parties as to the appropriate orders to be made on that question.
I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Al-Harazi
(2000) 203 CLR 1
(1994) 181 CLR 230
(1980) 147 CLR 1
(2011) 253 FLR 349
(2011) 33 VR 393