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[2007] VSCA 164
General information, not legal advice.
Court of Appeal (Vic)
2007-08-23
VINCENT, NETTLE and NEAVE JJA
Original judgment source is linked above.
CRIMINAL LAW - Possession of excisable goods contrary to s 117(1) of the Excise Act 1901 (C'th) - Verdict - Whether unsafe and unsatisfactory - Possession - Whether necessary for Crown to prove "exclusive possession" - Evidence - Circumstantial evidence - Contraband found in garage and store room to which applicant had keys - Whether necessary for Crown to exclude possibility of existence of other keys - Charge to jury - Whether necessary for judge to identify facts said to constitute indispensable link in chain of reasoning leading to inference of guilt - Whether judge required to direct jury of necessity for Crown to exclude possibility of existence of other keys beyond reasonable doubt - Excise Act (C'th), - ; , ; , applied; , , considered; ; , ; , ; , referred to.
1 I agree that, for the reasons advanced by Nettle JA, the application for leave to appeal against conviction should be dismissed.
**2 Following a trial in the County Court at Melbourne, the applicant was on 30 August 2006 convicted of one count that he did, contrary to s 117(1) of the Excise Act 1901 (C'th), without being a licensed manufacturer and without permission possess or have custody or control of manufactured or partly manufactured excisable goods on which duty had not been paid, namely, tobacco, knowing or being reckless as to whether the goods were excisable goods on which duty had not been unpaid.
3 He now applies for leave to appeal on grounds that:
4 Pursuant to s 149AB of the Evidence Act 1958 the following were admitted facts for the purposes of the trial:
**1) In 2003 the registered proprietor of the property at 76 Ford Avenue Sunshine North was Thi Tuyet Hong Dao. That property is a dwelling with a car garage in the left/rear of the block.
5 In addition, Desmond Michael Direen, an investigator with the Australian Taxation Office, Investigation Unit, gave evidence that on the morning of 26 May 2003 he executed a warrant at 76 Ford Avenue, Sunshine North. He said it was a double-storey residence with a garage at the right-hand side,[1] at the end of the driveway. When he arrived at the premises, he knocked on the door and it was answered by the applicant. He then went inside and observed that the house had a living area on the ground floor, which included a lounge room, kitchen and eating area, and that there were three or four bedrooms and a bathroom upstairs. He also observed a female inside the house. After conducting a search within the house, he moved outside with the applicant to the driveway, where there was the garage, and he conducted a search in that area. The garage was locked and Mr Direen asked the applicant to open it. The applicant produced a bunch of keys from his right hand side trouser pocket, walked up to the door and immediately selected the correct key and unlocked the door. Mr Direen walked into the garage with the applicant and smelt tobacco. On the left hand side were five plastic garbage bags later ascertained to contain tobacco. Mr Direen then walked with the applicant back out through the roller door of the garage and through a gateway at the left hand side of the garage to a store room at the rear of the garage. It was also locked. The applicant unlocked that room with a different key which he also selected without hesitation from the bunch. Upon entering the store-room, Mr Direen smelled tobacco once more and saw a total of eleven green plastic garbage bags, later found to contain tobacco, six in one spot and five in another.
6 Under cross-examination, Mr Direen said that he believed that the owner of the premises had children. He also said that he did not believe that the woman whom he saw at the premises was the applicant's wife. He agreed that, in his experience, when one buys something fitted with a lock, it is normally supplied with two keys. He also agreed that he did not know whether there was second or other key to the garage or storeroom in which the tobacco had been located. He said that the applicant was seen arriving at the premises, about 10 minutes before the warrant was executed, in a car which was registered to the premises. He accepted, however, that he did not know how many other cars were registered to the premises and that he had not made any enquiries about that.
7 The prosecutor sought to tender as business records of the Commonwealth[2] Centrelink documents purporting to show that the registered proprietor of the premises, Thi Tuyet Hong Doa, had been living with the applicant as her partner at the premises since 6 December 2002. But the judge rejected the tender, and the Crown did not offer other evidence of the applicant's marital status or relationship with Ms Doa or as to where he was living at the time of execution of the warrant. The jury was not given any explanation of what was meant by the admitted fact that the applicant's car was "registered to 76 Ford Avenue, Sunshine North." In particular, it was not said whether expression "registered to" was intended to convey that 76 Ford Avenue, Sunshine North was the address for the service of notices on the registered operator of the vehicle or the garage address of the vehicle.[3] The Road Safety (Vehicles) Regulations 1999 were not tendered and the certificate of registration relating to the applicant's car was not put in evidence.**
**8 In deciding whether the verdict in this case is unsafe or unsatisfactory, we are bound to ask whether we think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In undertaking that task we are also required to bear in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury has had the benefit of having seen and heard the witnesses. If, however, we experience a doubt as to the guilt of an accused, we should ordinarily treat it as a doubt which the jury ought also to have experienced. The function of this court is to determine whether the jury, acting reasonably and appreciating the burden and standard of proof could have convicted the applicant on the evidence available to support his conviction.[4] In my view it was open to the jury to come to the view that the applicant was guilty beyond reasonable doubt of the offence with which he was charged.
9 The Crown went to the jury on the basis that they were entitled to infer custody possession and control of the tobacco from the facts that the applicant was present at the house at 76 Ford Street, Sunshine North, and had his car registered at that address, and had keys to the garage and store room there, and used them to open the garage and store room in the manner that he did.
10 Thereafter, the judge correctly directed the jury that, in order to convict the applicant, they had to be satisfied beyond reasonable doubt that the applicant intentionally possessed or had custody or control of the tobacco in the garage and the store room, and that meant that they had to be satisfied that the accused knew that the tobacco was in the garage and store room; and that the garage and store room were places to which he could go without any physical bar to obtain manual possession of the tobacco; and that he had the right to exclude everyone else from interference with the tobacco.
11 Counsel for the applicant contends that it was not open to convict because it was not open to exclude as a reasonable possibility that someone apart from the applicant also had a key to the garage and store room and therefore that the applicant did not have the exclusive means and right of opening the garage and store room and obtaining the tobacco. I do not accept that contention.
12 The idea that it was incumbent on the Crown to prove that the applicant had exclusive access to the tobacco is based on the decision of the High Court in Moors v Burke.[5] That case was concerned with the question of what it was that amounted to "actual possession" for the purposes of s 40 of the Police Offences Act 1915.[6] The defendant was a Customs officer who placed wool in a locker to which he had access as of right, and to which at least one other Customs officer also had access as of right. In a joint judgment delivered by Isaacs J, the court held that having actual possession within the meaning of s 40 meant:**
"... having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes....But it does not include the case of a person who has put the property out of his present manual custody and deposited it in a place where any other person independently of him has an equal right and power of getting it, and so may prevent the first from ever getting manual custody in the future." (Emphasis added).[7]
It followed, it was said, that because another Customs clerk had equal right and power with the defendant and independently of him to open the locker and take out its contents, the wool was not in fact in the "actual possession" of the defendant.
13 In Williams v Douglas[8] a differently constituted High Court gave a similar meaning to "possession" in s 36 of the Gold Buyers Act 1921-1948 (WA).[9] After referring to Moors v Burke with apparent approval, Latham CJ and Dixon and McTiernan JJ held in a joint judgment that in the context of the Gold Buyers Act it appeared right to construe the words "possession or control" as referring to de facto possession and actual control and that the result was much the same as if the word "actual" had been written before the word "possession". Consequently, "possession or control" was wide enough:
"...to include any case where the person alleged to be in possession had hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident."[10]
14 Rich J in a separate judgment to the same effect held that the phrase "possession and control" denoted the right and power to deal with the article in question and that on the facts of the case, the accused, being shown to have hidden gold under a bath in a communal bathroom in a hotel at which he was staying at the time, had the gold:
"...as effectually under his control or his de facto possession as if he had locked it in a box in the bathroom, a box of which he and he alone had the key, or if you like he and an accomplice alone had the keys."[11]
15 More recently, however, in He Kaw Teh v The Queen,[12] Dawson J described the Moors v Burke definition of possession as "somewhat verbose" and stated that for the purposes of the criminal law there is no better working definition of possession than that given by Lord Diplock in Director of Public Prosecutions v Brooks:[13]
"In the ordinary use of the word 'possession', one has in one's possession whatever is, to one's own knowledge, physically in one's custody or under one's physical control."
That definition and the facts in Brooks imply that it is not always necessary for the Crown to exclude the possibility of someone other than the accused having equal right and power of getting at the object.
**16 There are also two later decisions of intermediate courts of appeal concerned with the possession of proscribed drugs in which, notwithstanding Moors v Burke, it has been held that it was not necessary for the Crown to exclude the possibility of a person other than the accused having an equal right and power of getting at the drugs in question.
17 First, in R v Dibb,[14] where the accused were charged with deemed supply based upon possession of not less than a traffickable quantity of heroin (the heroin having been found in the kitchen of their home and it being reasonably possible that their daughter had licence to enter the premises), the New South Wales Court of Criminal Appeal held that the trial judge had erred in failing to direct the jury that the Crown was required to eliminate any reasonable possibility that the heroin was in the daughter's possession or, alternatively, to establish that the daughter was acting in concert with the accused in relation to the prohibited substance. But in going on to apply the proviso, on the basis of admissions that the accused owned the heroin, the court reasoned that:**
"...in the present case, each of the appellants admitted to knowledge and ownership of the heroin; each was able to obtain manual possession of the heroin without physical bar. It was in the possession of them both. The Crown did not have to establish that they were the only persons who had possession of the heroin. It was sufficient to establish that they had possession. The fact that there was a reasonable possibility that the daughter (or anyone else) also had such possession... - does not mean that the appellant were not themselves guilty of such possession. To hold otherwise would make a farce of the criminal law."[15]
18 Secondly, in R v Cumming,[16] where the accused had been charged with possession of methyl amphetamine found in the kitchen refrigerator in a house which she shared with her partner, Merrett, the Western Australian Court of Criminal Appeal rejected a contention that the Crown was required to prove that the appellant had exclusive possession of the methyl amphetamine. Owen J, with whom Pidgeon and Rowland JJ agreed, held that:
"It is well settled that several persons can have possession as against the rest of the world: see Moors v Burke[17]...
...In my opinion the learned trial judge was not required to direct on the issue of exclusive possession. There was evidence before the jury from which an inference could be drawn that the appellant had possession of the methyl amphetamine irrespective of Merrett's involvement. Merrett's absence was explained to the jury both by counsel for the prosecution and the learned trial judge. The jury was duly directed that it could not and should not convict [the] appellant on the basis of association with Merrett. Her case had to be considered separately. No more was required."[18]
**19 Although Moors v Burke and William v Douglas are binding as to the meaning of the legislation with which those cases were concerned, in my view the approach in R v Dibb and R v Cumming is in principle to be preferred in cases involving possession of proscribed drugs and other contraband under other legislation such as the Drugs Poisons and Controlled Substances Act 1981. For example, a drug trafficker who stored drugs in a railway station locker (to which the station management reserved an unqualified right of access) could hardly avoid a conviction for possession of the drugs on the basis only that station management, independently of the drug trafficker, had an equal right and power of getting at the drugs and so might prevent the drug trafficker from ever getting manual custody of the drugs in the future. Similarly, a professional man addicted to narcotics who stored his stash in a locked desk drawer to which he and a secretary (not an accomplice) each had keys, would be unlikely to avoid a conviction for possession of the narcotics on the basis only that the desk was a "locked box" to which someone other than the offender and any accomplice had a key. As Hunt J said in R v Dibb, to hold otherwise would make a farce of the criminal law.
20 Similarly, under the Excise Act 1901 (C'th), it does not seem to me that an offender who stores contraband in a locked shed or garage to which another person, (not being an accomplice) also has a key, can avoid conviction for possession of the contraband on the basis only that the other person, independently of the offender, has an equal right and power of getting at the contraband (and so might prevent the offender from ever getting manual custody of the contraband in the future); or on the basis that the shed or garage is to be equated to a "locked box" to which someone other than the offender and any accomplice has a key. In reality there may be any number of circumstances in which an offender places contraband in a place of storage, well knowing that someone else has means of access to that place but chancing that the other person will not exercise their means of access before the offender returns and removes the contraband; or, perhaps, assuming that, even if the other person does exercise their means of access and finds the contraband, they will choose to leave it alone and say nothing about it. To hold that offenders in such situations could not be convicted of possession of the contraband in question would make a mockery of the Excise Act provisions.
21 Consequently, even if the jury in this case could not reasonably have excluded the possibility that someone in addition to the applicant had a key to the garage or store room, it seems to me that it might still have been open to them to be satisfied beyond reasonable doubt that the applicant had possession of the tobacco found in the garage and store room . In the circumstances postulated, they may not have been able to exclude the possibility that the other holder or holders of keys also had possession of the tobacco. But as was said in R v Dibb, that would not mean that the applicant was not himself guilty of such possession.
22 Assuming, however, that it was necessary for the jury to exclude the possibility that someone apart from the applicant had a key to the garage and store room, the fact is that the judge instructed the jury that they could not convict the applicant of possession unless they were satisfied beyond reasonable doubt that the garage and store room were places to which the applicant could go without physical bar to obtain manual possession of the tobacco and that the applicant had the right to exclude everyone else from interference with the tobacco. In my view, it was open to the jury to be satisfied of guilt consistent with those instructions. After all, the only thing ever said about the possibility of a second or other set of keys was the concession extracted from Mr Direen in cross-examination that in his experience something supplied fitted with a lock is normally supplied with two keys. In point of fact there was no evidence that there had ever been or was now more than the one set of keys to the garage and shed. In those circumstances it would have been speculating to suppose that there might have been a second key or keys either ever or still in existence. And a speculative hypothesis of that kind is not to be equated with a reasonable hypothesis consistent with innocence. It was rather something which the jury were required to ignore.
23 I allow that the jury could not have been satisfied beyond reasonable doubt that the applicant lived at the premises. On the evidence which was admitted, perhaps the most that could be said beyond reasonable doubt was that the applicant had some sort of licence to be on the premises and that, whatever its nature, it was sufficiently enduring to warrant that he should choose to register his car to that address and possess and be readily familiar with the keys to the garage and store room. But, as it seems to me, that meant that it was not unlikely that the applicant lived at or spent considerable periods of time at the premises and, when that circumstance was combined with his knowledge and possession of the keys to the garage and shed, as the jury were properly instructed that they could combine it, it was in my view open to be satisfied beyond reasonable doubt that the applicant had custody of the tobacco in the sense which I have described.**
**24 The applicant contends as a separate ground of appeal that the judge erred by failing to direct the jury as to the exclusivity of access to the garage area being required to be proved beyond reasonable doubt.
25 I reject that contention. For the reasons already given, I do not consider that the Crown had to establish that the applicant was the only person who had possession of the tobacco. It was sufficient to establish that he had possession even if there had been a reasonable possibility that someone else also had possession. But in any event, the judge did direct the jury that they had to be satisfied beyond reasonable doubt of exclusivity of access to the tobacco. As his Honour put it:**
"If I could come to the elements of this offence. As I mentioned earlier, each of these has to be established to your satisfaction by the Crown beyond reasonable doubt...
The third element is that he [the applicant] intentionally possessed, or had custody or control of , the tobacco in the garage and store room. 'Intentionally' there means 'meant to'. 'Possessed' and 'possession' mean 'intentionally', there is that word again, 'had custody or control over the tobacco in the garage and store room to the exclusion of everyone else'; that is, that he had the right to exclude everyone else from interference with the tobacco and that he had the tobacco in a place to which he could go without any physical bar to obtain manual possession of it and it also means that he had the legal right to exclude all person from the garage and store room."
**26 The applicant complains that the judge erred, initially, by failing to direct the jury on the issue of knowledge of the applicant and then, when re-directing the jury as to the issue of knowledge, by failing sufficiently or at all to relate the re-direction contextually to the previous directions regarding possession, exclusivity of access to the garage area, evidence relevant to knowledge and the requirement that the jury be satisfied beyond reasonable doubt as to knowledge.
27 In my view that complaint is also unfounded. In his initial directions on the elements of the offence, the judge explained to the jury that the fifth element of the offence was that:**
"[T]he accused knew or was reckless as to whether the tobacco was excise goods on which duty had not been paid. 'Knowing' in this context means being aware that the tobacco was excisable goods on which duty was not paid and 'being reckless' means being aware of the substantial risk that ... the tobacco was excisable goods on which excise duty had not been paid and it was unjustifiable to take the risk upon that."
Thereafter counsel for the applicant took exception that the judge had failed to direct the jury that:
"..the Crown must prove beyond reasonable doubt firstly that he knew the tobacco was there. If they don't prove that they can't prove possession.
Secondly, they have to prove that he had access and thirdly they have to prove beyond reasonable doubt that he - and it's what your Honour said earlier - but that he intended exclusive possession to the world at large and had the legal right to exclude all other persons from the garage and storeroom."
"Sorry to disturb your deliberations, Mr Foreman and members of the jury, but I just wanted to stress a point which is that to find that the accused intentionally possessed or had custody or control of the tobacco in the garage and storeroom, you have to be satisfied that the accused knew that the tobacco was there. I just wanted to stress that point. I think I probably moved around that a bit and I think you have probably come to that conclusion yourself, but I just wanted you to hear that from me that for that third element of intentionally possessing or having custody or control of the tobacco in the garage or storeroom, you have to be satisfied that the accused knew that the tobacco was there."
**28 With respect, I doubt that the re-direction was necessary. It appears to me that the judge's initial directions made plain that the Crown had to prove that the applicant "knew the tobacco was there" and that he intended exclusive possession to the world at large and had "the legal right to exclude all other persons from the garage and storeroom." I refer in particular to his Honour's instruction to the jury concerning the fifth element of the offence that they needed to be satisfied that the applicant intended, in the sense of meant, to have possession or control of the tobacco in the garage and store room to the exclusion of everyone else, and to his Honour's instruction to the jury that they needed to be satisfied that the applicant was aware that the tobacco was excisable goods on which duty was not paid or that there was a substantial risk that the tobacco was excisable goods on which excise duty had not been paid.
29 But, obviously, the exception having been taken, his Honour was right to re-emphasise the need for the Crown to prove knowledge, and in my view the re-direction did that in a way which expressly related the re-direction contextually to the initial directions regarding possession, exclusivity of access to the garage area, and the requirement that the jury be satisfied beyond reasonable doubt as to knowledge. His Honour did not refer specifically in the redirection to the evidence relevant to knowledge. But he had already dealt with that evidence at length immediately before exception was taken and thus shortly before the re-direction was given. In the circumstances, the jury cannot have failed to understand that they were to consider the evidence to which the judge had so referred in the context of the re-direction.**
**30 The applicant further contends that the judge erred by failing to direct the jury in accordance with the reasoning in Shepherd v The Queen[19] that they had to be satisfied beyond reasonable doubt as to any fact which they considered to be indispensable to the line of reasoning adverse to the applicant and specifically with regard both to a submission advanced by the Crown in final address that the fact that the applicant was resident at 76 Ford Avenue was "the only inference you can draw" and as to the exclusivity of access to the garage area. Counsel for the applicant took exception below on the basis that the judge had not given such directions but his Honour refused to re-direct as requested.
31 In my view the judge was correct to rule as he did. His Honour had already given the "the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances".[20] As he put it:**
"In a criminal trial such as this, you have got to be very careful about the inferences you draw. The rule is that you must not draw an inference as to the existence of an element of the crime charged or the guilt of the accused person unless first of all you are satisfied beyond reasonable doubt of the factual basis of the inference and secondly, you are satisfied also that the inference is the only reasonable inference to be drawn from those facts.
To put the matter another way, in a circumstantial case such as this you cannot convict if there is any rational hypothesis or reasonable explanation consistent with innocence. Because inferences, and the last piece I told you in particular with respect to a circumstantial case such as this, are so fundamental to this whole trial I want to repeat that for you.
In a criminal trial such as this, you have got to be very careful about the inferences you draw. The rule is that you must not draw an inference as to the existence of an element of the crime charged or the guilt of the accused person unless first of all you are satisfied beyond reasonable doubt of the factual basis of the inference and secondly, you are satisfied also that the inference is the only reasonable inference to be drawn from those facts. Then, because this is a circumstantial case, that is how it is put by the Crown, you cannot convict, you must acquit if there is any rational hypothesis or reasonable explanation consistent with innocence."
32 It is true, as Dawson J said in Shepherd, that it may sometimes be necessary or desirable for a judge in a circumstantial case to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. But as Dawson J went on in Shepherd to point out, not every possible intermediate conclusion of fact will be of that character:
"[I]f it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence[21] - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."[22]
**33 In this case I do not consider that it was necessary or desirable to identify any intermediate fact as indispensable to the chain of reasoning leading to the ultimate inference of guilt. The jury had been instructed of the elements of the offence of which they need to be satisfied beyond reasonable doubt. It was up to them which facts they considered were sufficient to satisfy them of those elements beyond reasonable doubt. In my view, it was sufficient to tell them that the guilt of the applicant had to be established beyond reasonable doubt and that they could not be satisfied of that beyond reasonable doubt if there were any other inference consistent with innocence reasonably open on the evidence.
34 The applicant refers in particular to the Crown's submission in final address to the jury (that the fact that the applicant lived at the premises was the only inference open). Counsel for the applicant argues that in light of that submission it was necessary for the judge to instruct the jury they could not convict unless satisfied beyond reasonable doubt that the applicant lived at the premises. But in my view that is not so. The jury were not bound to adhere to the Crown's process of reasoning or to acquit unless satisfied of its efficacy. As the judge correctly instructed the jury, they were not bound by any comments or arguments of counsel and they were free to accept them or reject them as they chose. Logically, there was no necessity of being satisfied that the applicant lived at the premises before being satisfied that the applicant was in possession of the tobacco. All that the jury had to be persuaded of was that the applicant placed the tobacco there under lock and key so as to preserve to himself the ability of taking physical possession of the tobacco when he chose to do so. As has already been observed, he had some sort of licence to be upon the premises and it was of such a nature as to make it appropriate to register his vehicle to the address and to have in his possession and under his control what was upon the evidence the only known set of keys to the locked garage and store-room in which the tobacco was stored. The jury might well conclude on that basis, as I would conclude, that he had possession.[23]
35 Nor do I accept that the judge was bound to say anything more than he did about the need to be satisfied of exclusivity of possession. As observed earlier in these reasons, the judge specifically directed the jury that they had to be satisfied beyond reasonable doubt that the applicant had the right to exclude everyone else from interference with the tobacco and that he had the tobacco in a place to which he could go without any physical bar to obtain manual possession of it and the legal right to exclude all person from the garage and store room. In my view that was more than enough.**
36 It follows for the reasons which I have given that I would refuse the application for leave to appeal.
37 For the reasons given by Nettle JA, I agree that the application for leave to appeal should be dismissed.
[1] Presumably, as faced from the street.
[2] Evidence Act 1995 (C'th), ss 69(2) and 182(1).
[3] See Road Safety (Vehicles) Regulations 1999, Regulations 218 (1)(b) and (c).
[4] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 and 501.
"Any person having in his actual possession or conveying in any manner any personal property whatsoever suspected of being stolen or unlawfully obtained may be arrested either with or without warrant and brought before a Court of Petty Sessions, or may be summoned to appear before a Court of Petty Sessions." (Emphasis added).
"Any person...who has gold or gold matter in his possession or control...may be required by...any member of the police force... to satisfy him that such person came lawfully by the same...and if he does not so satisfy such ... member... proceedings for an offence against this Act may be taken against such person upon information..."
[12] [1985] HCA 43; (1985) 157 CLR 523, 600.
[13] [1974] AC 862, 866.
[17] [1919] HCA 32; (1919) 26 CLR 265, 271.
[21] Vol 9 (Chadbourn rev. 1981), par 2497, pp 412-414.
[23] Wrightson v McArthur and Hutchinsons (1919) Ltd [1921] 2 KB 807, 817-818; Seka Pty Ltd (in prov liq) v Fabric Dyeworks (Aust) Pty Ltd (No. 2) (1991) 28 FCR 574, 9 ACLC 646, 649.
R
Tran [2007] VSCA 164
(1994) 181 CLR 487
(1990) 170 CLR 573
(1919) 26 CLR 265
(1985) 157 CLR 523
(1949) 78 CLR 521
(1949) 78 CLR 527
(1991) 28 FCR 574