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[2020] VSC 769
General information, not legal advice.
Supreme Court of Victoria
2020-11-18
TINNEY J
Original judgment source is linked above.
CRIMINAL LAW - Bail - Section 3A murder and armed robbery - Alleged drug rip off - Three co-accused in addition to applicant - Two co-accused granted bail by different judge - Prosecution cases against co-accused stronger than that against the applicant - No assertion by respondent of unacceptable risk against applicant - Parity - Hurdles confronting prosecution in respect of complicity and causation - Delay - Onerous conditions in custody due to COVID-19 - Strong family support - Availability of employment - Substantial surety - Exceptional circumstances made out - Bail granted with stringent conditions - Bail Act 1977 ss 1B, 3AAA, 4, , , , .
1 The applicant applies for bail on charges he faces of murder contrary to s 3A of the Crimes Act 1958 and armed robbery. The alleged offending occurred in the early hours of 15 September 2019.
2 The applicant was remanded in custody on these charges on 7 August 2020. This is his first application for bail. Pursuant to s 13(2) of the Bail Act 1977 ('the Act'), only this Court, or a court committing the person for trial, may grant bail to a person accused of murder. Murder is a Schedule 1 offence under the Act, and as a result, I must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail.
3 Three other people have been charged with the same offences as the applicant. Two of them, Denaye Whitfield ('Whitfield') and Tomas Cugurno-Pfabe ('CP'), were released on bail by Taylor J on 28 September 2020[1] and 20 October 2020[2] respectively. The other co-accused, Benjamin Nagy ('Nagy'), has made no application for bail and remains in custody.
4 At the time of the alleged offending, Bradley Crawford ('the deceased'), was residing at a caravan parked in the driveway of his mother's home at 43 Borg Crescent, Scoresby, using the caravan to traffick drugs, including cannabis, methylamphetamine and cocaine.
5 Co-accused Whitfield was introduced to the deceased through a mutual associate in June 2019. Over the next three months she attended the deceased's caravan to purchase drugs on approximately 10 occasions.
6 Whitfield met Nagy at a mutual friend's home in July 2019. During a conversation between the pair in September 2019, Whitfield informed Nagy that she had been purchasing methylamphetamine from the deceased. During a further conversation on 13 September 2019, Nagy enquired whether Whitfield knew how much 'gear' was kept at the deceased's caravan and whether he paid his suppliers upfront. Whitfield explained that she owed the deceased money to which Nagy allegedly responded, 'fuck him, don't pay him'. Nagy went on to say that he wanted to go to the caravan and asked for its location.
7 On the afternoon of 14 September 2019, the applicant, CP, Nagy and Nagy's partner checked into the Aria Hotel in Southbank before attending a 'day party' event at a nightclub in Southbank.
8 At approximately 3.52am on 15 September 2019, Whitfield and Nagy exchanged text messages. Whitfield wrote to Nagy stating 'we need to do this job like now' and the pair arranged to meet.
9 CCTV footage from the Aria Hotel at approximately 4.41am that morning depicts Nagy driving from the hotel in a Mazda utility with the applicant and CP both passengers in the vehicle. Before leaving the hotel carpark, CCTV footage allegedly captures Nagy retrieving a pair of work gloves from the rear tray of the utility vehicle where a black handled mallet is also visible.
10 At approximately 4.48am, CP messaged Whitfield asking for an address. Whitfield responded by providing the address to the Ferntree Gully Hotel where she was staying. She then sent a further text message, stating, 'then we going Scoresby, 10 min down rd'. Phone records show that the applicant, Nagy and CP's mobile phones were each located in South Melbourne before travelling to the Scoresby/Ferntree Gully area during this period.
11 CCTV footage recovered from a carpark at the Ferntree Gully Hotel depicts Whitfield meeting with the applicant, Nagy and CP at approximately 5.38am. Nagy can be seen reaching into the rear tray of his vehicle near the location of the mallet before the group are seen departing the hotel carpark in Whitfield's Volkswagen. CCTV footage from Borg Crescent, Scoresby shows Whitfield's Volkswagen arriving and parking in the street approximately 20 minutes later. Witnesses, including the deceased's mother and occupants of neighbouring properties on Borg Crescent, report hearing loud banging noises, muffled voices and a car taking off at speed at approximately 6.00am that morning.
12 The group were captured on CCTV footage returning to the Ferntree Gully Hotel carpark in Whitfield's car at approximately 6.32am. The applicant can be seen exiting the vehicle from the driver's side door. He, Nagy and CP then returned to the Aria Hotel in Nagy's car. CCTV footage shows the vehicle parking and the three men walking back towards the hotel at approximately 7.01am. CP can be seen re-arranging a white plastic bag and its contents before placing it down his pants.
13 At approximately 4.30pm on 15 September 2019, the deceased was discovered unresponsive in his caravan. He had facial injuries and his caravan appeared to have been ransacked. The caravan was later processed by the Major Crime Scene Unit. A black handled rubber mallet with blood and hair on it was found. A wooden box containing cocaine previously observed at the caravan by associates of the deceased was unable to be located.
14 A post mortem examination was conducted by Dr Matthew Lynch of the Victorian Institute of Forensic Medicine. The cause of death was unable to be determined. After noting significant injuries in the form of multiple bruises, abrasions and lacerations to the face in multiple planes and that there was resultant bleeding into the right and left maxillary sinuses, Dr Lynch stated the following:
Whilst the cause of death [of the deceased] remains undetermined, it is appropriate to make several comments. Whilst there was patchy bronchopneumonia noted and evidence of significant lung disease, in a young otherwise healthy man it would be unusual for this in itself to be an explanation for an individual's death. Toxicological analysis detected a number of drugs. Amphetamines and cocaine have the capacity to induce cardiac arrhythmias and thus contribution to death by these stimulants (amphetamines and cocaine) is not excluded. In terms of a possible contribution of the facial trauma to death, the impact to the head may have resulted in loss of consciousness and depending on the position of the injured individual after the incident, their airway may be compromised and lead to death as a result of cerebral hypoxia. In this instance, there was also fresh blood within the airways (as a consequence of the facial trauma) and this may have further compromised the capacity for adequate oxygenation.[3]
15 The applicant and all three co-accused were arrested on 11 December 2019. The applicant and Nagy provided 'no comment' interviews. Whitfield initially provided 'no comment' responses, but in a second interview, admitted having attended at the location of the deceased's caravan with the applicant, Nagy and CP, in the knowledge that the others were going to 'roll' the deceased for his drugs and money. She stated that she went inside the caravan, where she was joined by Nagy and CP, who began to assault the deceased before she left. The applicant stayed with the vehicle as the driver.
16 During his interview, CP admitted having travelled with the applicant, Nagy and Whitfield to the deceased's caravan. He stated that Nagy and Whitfield entered the caravan first before he heard a commotion and followed them inside. He stated that Whitfield was arguing with the deceased, causing a fight to break out with punches being thrown. Despite observing the deceased to be bleeding from his head, CP claimed that he was still conscious when the group left.
17 Following his interview, CP was recorded speaking with covert operatives inside his holding cell. He allegedly stated that he attended the caravan upon being informed that the deceased was 'holding', that he had struck the deceased twice to the head with a hammer which he had left behind, and that his friend placed the deceased in a choke hold while he took two ounces of methylamphetamine and one ounce of cocaine from the caravan.
18 Each member of the group was subsequently released without charge.
19 Whitfield was re-arrested, charged and remanded in custody on 6 August 2020. The applicant, Nagy and CP were each charged and remanded the following day.
20 The applicant is 23 years old. He was subjected and exposed to instances of family violence in his early childhood, causing Child Protection to become involved in his care on at least three separate occasions. His parents separated following an incident requiring police attendance in 1999. The applicant and his younger brother moved with their mother to Tasmania in 2008, but returned to live with their father in Frankston several months later after their mother was seriously injured in a motorcycle accident. The applicant characterises his relationship with his father as turbulent during his teenage years, resulting in him temporarily residing with friends and the imposition of a number of family violence intervention orders for his protection. At the time of the alleged offending, he was residing with his father in Mornington, but relocated to his mother's home in Hastings prior to his remand.
21 The applicant attended several different schools as a result of his fluctuating living arrangements. He successfully completed years 9 and 10 at TAFE and thereafter undertook a pre-apprenticeship and apprenticeship in plumbing. Prior to his remand, he was working six days per week as a registered plumber with Liquid Force Plumbing.
22 The applicant has a history of polysubstance use, commencing with cannabis at the age of 14. He self-reports having used cocaine, ecstasy and cannabis in the period leading up to the alleged offending. He reports that he is now drug-free in custody.
23 The applicant has a limited criminal history comprising findings of guilt in the Children's Court for criminal damage and three charges of recklessly causing injury, and one conviction for unlawful assault in the Frankston Magistrates' Court in August 2019 for which he received a fine. He complied with the non-conviction undertakings to which he was subject for the Children's Court matters. The present custodial period represents the applicant's first time on remand.
24 Section 1B of the Act sets out the guiding principles of the legislation, which include maximising community safety, and taking account of the presumption of innocence and the right to liberty.
25 Section 4 of the Act provides:
A person accused of an offence, and being held in custody in relation to that offence, is entitled to be granted bail unless the bail decision maker is required to refuse bail by this Act.
26 Section 4AA sets out situations in which the exceptional circumstances test applies to a decision whether to grant bail. One of those situations is when the applicant for bail is accused of a Schedule 1 offence, as is the case here. Section 4A(1A) dictates that the Court must refuse bail unless satisfied that exceptional circumstances exist that justify the grant of bail. The applicant bears the onus of satisfying the Court as to the existence of exceptional circumstances.[4] In determining whether exceptional circumstances exist, the Court must take into account the surrounding circumstances[5], including, but not limited to, those prescribed in s 3AAA(1) of the Act.
27 If satisfied that exceptional circumstances exist, the Court must then apply the unacceptable risk test pursuant to s 4D(1)(a) of the Act. Bail must be refused if the Court is satisfied by the respondent that there is a risk that the applicant would engage in any of the conduct outlined in s 4E(1)(a) and that such a risk is an unacceptable risk.
Effectively, the applicant has to establish circumstances right out of the ordinary. They have to be exceptional to the ordinary circumstances which would otherwise entitle the applicant to bail. Ordinary circumstances consist of circumstances such as hardship to the accused or to his family, disruption of his work and similar matters.[8]
30 It is plain from the cases that the threshold of exceptional circumstances is a high one, but not an impossible one to reach. It may be established by a combination of circumstances which may, by themselves, not be considered exceptional.[9]
31 Ms Jennifer Clifford, the mother of the applicant, gave impressive evidence before me. She told the Court about the somewhat difficult childhood of the applicant, in which he was exposed to domestic violence by his father towards her, in the context of the ongoing battle both she and her husband had fought with alcoholism. That was a battle in which she has had great success, having been sober for 17 years. Not so her husband. In the past, the applicant was also the victim of direct violence by his father. Indeed, the family had had significant involvement with Child Protection, and the applicant was the subject of a number of supervision and protection orders. Ms Clifford indicated that the applicant had been open in seeking counselling for his own emotional problems, and had developed a strong bond with their local GP. He is on anti-depressants now. He returned to live with her in May 2020, after he was interviewed by police but some months before his arrest. He had made it clear to her that he wanted to live a quiet life and would be drug free. He had then conducted himself accordingly, and she spoke of his conduct in glowing terms. The relationship was an exceedingly close one, she said, and the applicant also has close bonds with his siblings. In addition, he has a girlfriend, whom Ms Clifford saw as having a stabilising influence upon him. Ms Clifford indicated her willingness to provide a surety of $100,000. She also gave an undertaking that she would notify the informant of any breaches of bail.
32 Mr Gwynn, for the applicant, relied upon a combination of matters set out in his oral submissions and in the affidavit in support in proof of the existence of exceptional circumstances in this case. The matters were as follows:
(a) Parity. Mr Gwynn pointed to the fact of Whitfield and CB having been granted bail by Taylor J. Whilst counsel acknowledged that parity would not be a determinative issue on the question of bail, it is a consideration which should go into the mix of circumstances to consider. He submitted that the applicant's alleged role in the offending was much less than that of those two co-accused. Both of them made admissions of having entered he caravan and of being present when the deceased was assaulted. CP admitted having struck him with the mallet. In the case of each of them, unlike in the case of the applicant, the prosecution asserted an unacceptable risk of failure to appear. The hurdles in connection with causation and proof of complicity which were commented upon by Taylor J applied even more in the case of the applicant.
(b) The weakness of the prosecution case. Although Mr Gwynn commenced by describing the questions of causation and complicity as being triable issues in the case against the applicant or as amounting to hurdles, later in the application, he went as far as to submit that the case on the s 3A murder is a weak one.[10] There would be real issues in the prosecution seeking to prove the complicity of the applicant in the foundational offence for the s 3A murder, no matter whether that was armed robbery or robbery simpliciter, and in proving that any act carried out in the assault upon the deceased was a substantial and operating cause of his death.
(c) Delay and the onerous conditions of custody due to COVID-19. The committal of the applicant would not proceed until about August 2021, by which time the applicant would already have been in custody for 12 months. There would then be a further delay of an indeterminate time before a trial would proceed in this Court. The lengthy period the applicant would spend on remand would be particularly significant in view of his young age, the fact that this is his first time in custody, the very onerous nature of conditions in custody at the moment, which was summarised by Mr Gwynn, and the fact that the applicant is somewhat vulnerable as a result of his diagnosed depression and anxiety.
(d) Ties to the jurisdiction, stable accommodation, family support, and provision of a surety of $100,000. Mr Gwynn relied in particular on the evidence of the mother of the applicant, whom he described as a very impressive witness. She will be able to provide a very stable and appropriate residence for the applicant, and would be able to monitor his compliance with bail. Mother and son clearly share a close bond, making the provision of a substantial surety by her all the more significant.
(e) Availability of stable employment. If granted bail, the applicant has an offer of full-time employment available to him at his previous place of employment. He is very well regarded by his employer.
(f) Limited criminal history. Most of the applicant's appearances have been in the Children's Court, with his single conviction in the adult jurisdiction resulting in a fine. Mr Gwynn summarised the earlier matters, and indicated that in respect of the final matter, the prosecution of the applicant for assault was based on a situation of excessive self-defence. There have been no convictions for breaching bail or committing an indictable offence on bail. Indeed, by his conduct in keeping the earlier adjourned undertakings in 2012 and 2013, the applicant demonstrated his ability to comply with court orders. Furthermore, in the period between the time when he was interviewed by police in 2019 and the occasion of his arrest in August 2020, the applicant made no attempt to flee, or interfere with witnesses. He went about his business working full-time, and ceased his previous drug use.
33 Mr Gwynn proposed a number of conditions of bail which he submitted may be appropriate in the circumstances.
34 Mr Pickering made it clear at the outset that this was not a case in which, if the applicant succeeded in establishing the existence of exceptional circumstances, the respondent would assert that he poses an unacceptable risk. In respect of exceptional circumstances, however, he submitted that the matters relied on by the applicant, alone and in combination, were not sufficient to clear that high hurdle.
35 In respect of the strength of the prosecution case, Mr Pickering submitted that whilst there may be triable issues as outlined by Mr Gwynn, the case cannot be described as weak. There would be evidence capable of showing the applicant's complicity in at least a robbery, and evidence capable of establishing that the assault upon the deceased was a substantial and operating cause of his death.
36 The delay likely in this case, submitted Mr Pickering, cannot be said to be inordinate in the circumstances. Nor could it be asserted that he would be likely to spend more time on remand than the sentence he would be likely to receive upon conviction.
37 In respect of the applicant's submissions concerning COVID-19, Mr Pickering made the point that it has been noted in numerous cases, of which he gave some examples,[11] that exceptional circumstances will not usually be made out merely as a result of the existence of the pandemic.
38 On the question of parity, Mr Pickering submitted that there is 'no absolute parity in bail'.[12] He did acknowledge, however, that the decisions of Taylor J, which were not demonstrably wrong and were not the subject of appeal by the Crown, were relevant in considering whether exceptional circumstances have been made out in this case. He also acknowledged that unlike in the cases before Taylor J, there was no contention of unacceptable risk in this case. The question of exceptional circumstances remained to be assessed, no matter what determinations were made by Taylor J in the cases of the co-accused. Parity would be relevant, but not determinative. This case must be decided on its own facts.
39 On the question of family support and the availability of employment, the report of the informant, Detective Acting Sergeant Renfrey, made the point that the applicant was in full time employment at the plumbing business and residing with his father and receiving substantial family support at the time of the alleged offending. These matters, it was submitted, really go more to the issue of unacceptable risk rather than exceptional circumstances.
40 Mr Pickering submitted that looked at logically, most of the matters relied upon by the applicant were not exceptional, or even unusual. They certainly did not fit into the category of things which could be said to be right out of the ordinary. The applicant has failed to surpass the high threshold imposed by the exceptional circumstances test.
41 I think it is appropriate to deal first with the consideration which I believe to be the most important in this bail application, namely, the issue of parity.
42 In this case, I was provided with the decisions of Taylor J in the bail applications of the two co-accused who have applied for bail. To my mind, these decisions cannot be viewed as being anything less than well-reasoned, comprehensive and appropriate. Mr Pickering did not seek to submit to the contrary, and it was acknowledged that there has been no appeal brought against the grant of bail in either of these cases.
43 Both Mr Pickering and Mr Gwynn submitted that whilst those decisions are not determinative of this application, they are relevant, and should be taken into account by me. I have no doubt that that is correct.
44 The decisions of many judges of this Court make it plain that the principle of parity may be relevant in bail applications. Parity is of course a long-established principle of sentencing. It has been held to be appropriate for a variant of this principle to apply in bail applications.
45 A relatively early and frequently cited statement of the principle in modern times was made by Gillard J in the bail appeal of Director of Public Prosecutions (Cth) v Abbott ('Abbott').[13] Having referred to the decision of Coldrey J in the Matter of Donald Stuart Brown-Kerr,[14] and a number of decisions concerning the sentencing principle of parity, including Lowe v The Queen,[15] Gillard J noted that the rationale for the parity principle in sentencing 'is based on equal justice so that as between co-offenders there should not be a marked disparity which gives rise to a justifiable sense of grievance'.[16] His Honour went on to say:
The same sense of grievance leading to the appearance of injustice could result from the different treatment of co-accused on applications for bail. To that extent I am prepared to hold that the principle is relevant to the questions of exceptional circumstances as required by s 4(2)(a) and (aa), the question of the applicant showing cause why his detention in custody is not justified under s 4(4) and also in relation to the enquiry concerning unacceptable risk factors required by s 4(2)(d) of the Act. However, in my view it would indeed be rare for the principle to have any relevant weight in bail applications because the circumstances invariably at all levels of determination are peculiar to the particular applicant.
In my opinion the principle can apply but it must be established that things are equal as between the co-offenders...
Adapting that for a bail application the principle can be stated - where other things are equal applicants for bail should receive the same decision; where other things are not equal the bail applications may be dealt with differently.
In my opinion a manifestly wrong decision to grant bail could not be used as a basis for the application of the parity principle in another bail application.[17]
The principle of parity is based on the concept of a justifiable sense of grievance, due to the appearance of injustice resulting from different treatment of co-accused. In the context of this bail application, it may be relevant both to the questions of exceptional circumstances and unacceptable risk factors.[21]
47 In Politis, Zammit J included in a footnote a number of decisions of judges of this court in which Abbott has been cited with approval.[22]
48 In this case, I consider that the fact of Taylor J having released two of the applicant's co-accused on bail is a very telling matter in this application, in light of the above principles. The case against each of those co-accused was stronger than the case faced by the applicant.
49 In respect of Whitfield, on her own admission, she was complicit at least in a plan to rob the deceased. She was the first to enter the caravan and then was joined by Nagy and CP. She was present when the assault occurred. In the application, evidence indicated that at the time of her eventual arrest in August 2020, she was in possession of a driver's licence bearing her photograph but a false name. The respondent asserted an unacceptable risk in her case of failing to answer bail, and Taylor J expressed her concerns about her possession of the licence, whilst concluding that Whitfield's risk of absconding could be made acceptable by the imposition of conditions.
50 As for CP, he admitted involvement in the armed robbery, and admitted having struck the deceased to the head with the mallet during the course of the crime. He also admitted that he had witnessed his co-accused Nagy holding the deceased in a choke hold during the attack. The Crown asserted an unacceptable risk in CP's case, based on his ongoing drug habit and comments he had made to an undercover operative about fleeing the jurisdiction.
51 I do not pause to set out all of the matters upon which her Honour reached her decision in each case to grant bail. There were, of course, many differences between the personal circumstances of each applicant before her, as there are between each of them and the applicant before me. Suffice to say that I am satisfied that the applicant faces a significantly weaker prosecution case than either of those co-accused, and that, all things being equal, the case he has been able to advance on this application has been even stronger than those able to be advanced, successfully, on behalf of Whitfield and CP.
52 In those circumstances, and applying the parity principle as it has been adapted to bail applications, I take into account as an important matter going towards proof of exceptional circumstances, the fact that Taylor J granted bail to two co-accused of the applicant.
53 Turning to the other matters relied upon by the applicant, I will deal first with the question of the strength of the prosecution case against him. Mr Gwynn submitted that there were two hurdles facing the prosecution where the applicant was concerned, namely, causation and proof of complicity in the foundational offence. On the first matter, Mr Pickering was content for me to accept the characterisation of that issue as contained in Taylor J's decision in Re Cugurno-Pfabe[23] in which her Honour, without finding it necessary to assign any descriptor to the strength of the prosecution case, described the issue of causation as a 'hurdle' for the prosecution to overcome. Mr Pickering accepted that the causation issue would be a matter which the prosecution would be required to prove, and he accepted that this would not necessarily be a simple thing as would be the case, for instance, if a gunshot wound was being considered. As for the complicity point, that, too, would be a triable issue, according to Mr Pickering. None of this was to say, however, that the case was a weak one, but Mr Pickering did accept that the case could not be described as very strong.
54 I will act on the basis that the prosecution case against the applicant has some hurdles which would need to be overcome before his guilt could be proved. I do not consider that the case could appropriately be described as a weak one. On the other hand, it could not be described as an especially strong one either.
55 I take into account the lengthy delay which will occur before the trial in this matter, and the circumstances in which the applicant would be required to be detained should bail be refused. The delay would be significant, but I do not consider that it would be properly viewed as inordinate. I do not accept the submission of Mr Gwynn that, looked at through the prism of the onerous conditions on remand due to COVID-19, the delay 'in and of itself' would be exceptional.
56 The promise of a very stable situation in which the applicant could live and work should he be granted bail is an important consideration in this case, to my mind. I accept the submission of Mr Gwynn that the mother of the applicant, Ms Clifford, was a very impressive witness. She would be in a position to provide supervision, support and guidance to the applicant should he be released on bail, reducing any risk of a return to drug use or reoffending. He is very fortunate to have her continuing support and love.
57 As for the criminal history of the applicant, it does contain a number of appearances for crimes of violence, which is concerning, but that is tempered by the fact that most of the appearances were when the applicant was a child. He has not gone so far in his criminal history that it could be concluded that he is set in the ways of violence or other criminality.
58 Finally, I note that the absence of any factors which caused the respondent to assert an unacceptable risk of any of the eventualities set out in s 4E(1)(a) of the Act is one of the matters which I must weigh in the mix when pondering the issue of exceptional circumstances.
59 In the end, having carefully considered all of the circumstances of this case, including all of the matters specifically raised before me, and the matters set out in s 3AAA(1) of the Act, I am satisfied that the applicant has discharged the burden resting upon him of proving the existence of exceptional circumstances that justify the grant of bail.
60 For that reason, bearing in mind that the respondent has made no submission that the applicant poses an unacceptable risk, I have concluded that it is appropriate that a grant of bail be made to the applicant. I propose to admit him to bail on the conditions set out in Appendix A to this judgment.
The said JAKE OLDIS be admitted to bail on his own undertaking with one surety in the amount of $100,000 with the following conditions:
[1] Re Whitfield [2020] VSC 632.
[2] Re Cugurno-Pfabe [2020] VSC 687 ('Re Cugurno-Pfabe').
[8] Ibid [13]; See also Re Sipser [2019] VSC 362 [43] and Re Reker [2019] VSC 81 [39].
[9] See, for example, Re Brown [2019] VSC 751 (Lasry J).
[11] Re Tong [2020] VSC 141; Re Sepehrnia [2020] VSC 247.
[13] (1997) 97 A Crim R 19 ('Abbott').
[14] Unreported, Supreme Court of Victoria, 10 August 1993.
[18] [2014] VSC 284 ('Haddara').
[20] [2019] VSC 780 ('Politis').
[22] Politis (n 19); Re Wilson [2006] VSC 178 [18]-[19] (Hargrave J); Gray v DPP [2008] VSC 4 [15] (Bongiorno J); Bchinnati v DPP (No 2) [2017] VSC 620 [69]-[70] (Croucher J); Re Saputra [2017] VSC 433 [15] (Lasry J).
(1984) 154 CLR 606