Russell (a pseudonym) v The Queen [2016] VSCA 196

1 The applicant is facing trial in the County Court on several charges, including trafficking in methylamphetamine and pseudoephedrine, possession of equipment and substances for the purposes of trafficking, and possession of unregistered firearms. The prosecution case is that a clandestine laboratory was set up at the applicant's home and used to manufacture methylamphetamine which was then supplied to drug dealers.

2 The prosecution wish to rely on evidence of a search conducted at the same premises more than 10 years earlier ('the 2001 search'), when a quantity of finished drugs was found together with equipment, glassware, documents and substances used in the manufacture of methylamphetamine. Notice was therefore given by the prosecution that it would seek to rely on the evidence of what was found in the 2001 search as coincidence evidence under s 98 of the Evidence Act 2008 ('Evidence Act').

3 Before the trial judge, however, the prosecutor relied principally on the decision of this Court in Ivanoff v The Queen.[2] In a detailed ruling, the judge concluded that the evidence was admissible in accordance with that decision. The applicant sought leave to bring an interlocutory appeal from that ruling.

4 As this Court has repeatedly emphasised, when an interlocutory decision concerns the admissibility of evidence, the scope for interlocutory appeal is heavily circumscribed.[3] Section 295(3)(a) of the Criminal Procedure Act 2009 provides that no application for leave to appeal may be made unless the judge who made the decision certifies that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

5 As Maxwell P (with whom Buchanan and Bongiorno JJA agreed) pointed out in CGL v Director of Public Prosecutions (No 2):[4]

It was obviously necessary to establish a threshold test before evidentiary questions could be the subject of an interlocutory appeal. Otherwise this court would be inundated with applications for leave to appeal regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials. It is important, therefore, that trial judges and prosecutors exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this court become bogged down, in a way Parliament cannot possibly have intended, with applications for leave to appeal against evidentiary rulings.

6 In the present case, the applicant sought a certificate under s 295(3)(a). Having heard brief argument, the trial judge said she was satisfied that, if the evidence had been ruled inadmissible, it would have 'substantially weakened' the prosecution case. As will appear, the prosecutor had effectively conceded that this was so.

7 On the hearing of the application for leave to appeal, the Court raised with the Crown as a threshold question whether the loss of the 2001 evidence would in fact have 'substantially weakened' the prosecution case. The response from counsel (who did not appear below) was clear and unequivocal. The loss of that evidence would not have substantially weakened the prosecution case.

8 At the conclusion of argument, we ruled that leave to appeal should be refused, without consideration of the merits of the proposed challenge to the judge's ruling. We made orders accordingly. For the reasons which follow, we do not consider that the exclusion of the 2001 evidence would have 'substantially weakened' the prosecution case. The position adopted by the Crown in this Court is the position which the prosecutor should have adopted before the trial judge. The 'very real vigilance' referred to in CGL required nothing less.

9 Our decision to refuse leave did not, however, rest solely on the issue raised by s 295(3)(a). We concluded that it would in any event have been undesirable to entertain an interlocutory appeal on the evidentiary question ruled on by the judge. Put shortly, the applicant's defence has yet to be articulated and the precise scope of the 2001 evidence to be relied on has yet to be resolved. It would not have been an appropriate exercise of the interlocutory appeals jurisdiction to decide the question in those circumstances.

10 The applicant was charged with several offences arising out of what the prosecution contends was a methylamphetamine trafficking operation. He was charged with trafficking in methylamphetamine, amphetamine and pseudoephedrine, possession of a precursor chemical, possession of substances, equipment and material for the purpose of trafficking in methylamphetamine, possession of amphetamine and possession of unregistered firearms. He has pleaded not guilty to all charges and is awaiting trial.

11 On 19 March 2014, police executed a search warrant at the applicant's property. The applicant was not present and was arrested later that day. The prosecution case is that police found a 'clandestine laboratory' at the property. Evidence will be given that police seized equipment, scientific glassware, documents detailing the process of manufacture of methylamphetamine and substances routinely used in the manufacture of methylamphetamine. Pharmaceutical 'blister packs' containing 3620 pseudoephedrine tablets were found at the property. A gas bottle was seized that was later found to contain 138 grams of methylamphetamine in a concealed compartment. Additionally, four unregistered bolt action rifles were found in the main bedroom.

12 The prosecution will seek to prove that the applicant regularly attended hotels in Melbourne where he would meet with his co-accused and that person's associates and provide them with methylamphetamine. A series of telephone intercepts will, on the Crown case, show that the applicant's co-accused placed orders for 406 grams of methylamphetamine between 1 December 2013 and 7 February 2014.

13 The combined weight of the methylamphetamine contained in the gas bottle and that allegedly supplied by the applicant to his co-accused is 544 grams. That amount constitutes a commercial quantity of methylamphetamine under the Drugs, Poisons and Controlled Substances Act 1981. The aggregate of these two quantities gives rise to the charge of trafficking in a commercial quantity of methylamphetamine. The applicant is also charged with trafficking in a commercial quantity of pseudoephedrine, and possession of amphetamine.

14 A number of pre-trial issues arose in respect of both the applicant and his coaccused. There is one matter that is presently relevant: evidence of the applicant's previous misconduct. On 11 April 2016, the judge delivered a ruling that evidence in relation to that previous misconduct was admissible. That is the ruling the subject of this application for leave to appeal.

15 The application for leave to appeal lists four grounds of appeal, two of which are pressed:[5]

1. The Learned Trial Judge erred in finding that the evidence of the previous misconduct sought to be led was relevant and admissible as to the question of whether the [applicant] had a particular state of mind or understanding which constitutes an element of the offence charged, or in rebuttal of a defence that is reasonably anticipated.
2. The Learned Trial Judge erred in finding that if the previous misconduct evidence sought to be led by the Prosecution was relevant and admissible there was no unfair prejudice to the [applicant] and accordingly the evidence was not to be excluded pursuant to s 137 [of the] Evidence Act 2008.

16 As mentioned earlier, police had executed a warrant at the same property in 2001. The applicant was arrested at the scene. On the prosecution evidence, he was manufacturing methylamphetamine at the property and supplying it to a Melbourne-based ring.

17 On that occasion, police recovered 540 grams of methylamphetamine from the property, as well as equipment, scientific glassware, documents and substances used in the manufacture of methylamphetamine. Precursor chemicals and over 1000 pseudoephedrine tablets, as well as 'significant quantities'[6] of empty cold and flu tablet blister packs, were also found. A number of firearms, including bolt action shotguns similar to those found in 2014, were found during the 2001 raid.

18 Moreover, surveillance, telephone intercepts and the evidence of a covert operative supported the inference that, on the day of the execution of the warrant, the applicant was in possession of eight ounces of methylamphetamine for the purpose of sale. There was also evidence that the applicant had previously supplied six ounces of methylamphetamine. There is plainly a degree of similarity between the items found in 2001 and those found in 2014.

19 After the 2001 raid, the applicant was committed for trial on charges including trafficking in a commercial quantity of methylamphetamine, trafficking in pseudoephedrine, possession of equipment or substances used in the manufacture of a drug of dependence for the purpose of trafficking, possession of money alleged to be proceeds of crime, and unregistered firearms charges.

20 Much of the evidence in respect of those charges has been located, including the original hand-up brief, the committal transcript, exhibit logs of what was retrieved from the property, and certificates in respect of the drugs and firearms. The photographs that were taken on the day of the raid have not been located.

21 In 2004, the charges referred to above were resolved. The applicant pleaded guilty instead to a between dates charge of trafficking simpliciter in methylamphetamine, being the six ounces of methylamphetamine that he had intended to supply, a charge of possession for sale of the eight ounces found at the execution of the warrant, and a rolled up unregistered firearms charge covering the firearms found on the property. The trial and plea presentments, transcript of the plea and the reasons for sentence from this matter have been retrieved.

22 As noted earlier, the prosecution in the present trial sought to adduce evidence of the 2001 search, and filed a coincidence notice pursuant to s 98(1) of the Evidence Act. In oral argument before the judge, however, the prosecutor contended that the 2001 evidence was relevant to the applicant's state of mind, and therefore need not be admitted as coincidence evidence. He relied instead on the judgment of Weinberg JA in Ivanoff.[7]

23 The judge accepted that the case, like Ivanoff, was one where the evidence could be admitted as relevant to the applicant's state of mind rather than as coincidence evidence. Although in this case 'the issues [were] not as narrowly or precisely defined as they were in Ivanoff',[8] that case stood for the broader proposition that evidence going to an applicant's state of mind was not the same as coincidence evidence and could, assuming other discretionary exclusions did not apply, be admitted as such. Finding that the probative value of the evidence was high, her Honour was not persuaded that s 137 of the Evidence Act required its exclusion.

24 The judge therefore ruled that the evidence was admissible as relevant to the applicant's state of mind in respect of the offences with which he was charged. In light of that and the fact that the applicant's defence amounted to putting the Crown to its proof, the judge refused to allow the prosecution to rely on the evidence as coincidence evidence but left open the possibility that the matter might be revisited if the applicant's defence were to change.[9]

25 After the judge delivered her ruling, counsel for the applicant applied for a certificate pursuant to s 295(3)(a) of the Criminal Procedure Act 2009. The judge invited the prosecutor's response, pointing out that she had to be satisfied 'that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case'.

[PROSECUTOR]: Well in my respectful submission, given that the facts in issue are the state of mind, knowledge and the like. The 2001 matters - or the absence of the 2001 matters, in my respectful submission, would substantially weaken the prosecution case.

HER HONOUR: Yes.

[PROSECUTOR]: And so therefore I would be - well my submission is that in the words of [s 295](3)(a), '[a] party may not seek leave to appeal unless the judge certifies'.

HER HONOUR: But given the findings I've made in respect of the significance of the 2001 evidence, and, in fact, the [force] with which the Crown argued for [its admission] -

[PROSECUTOR]: Yes.

HER HONOUR: - you'd be hard pushed to say its exclusion would - wouldn't substantially weaken the prosecution case. I mean, you could run your case without it.

[PROSECUTOR]: Well we've got the existing -

HER HONOUR: Yes.

[PROSECUTOR]: - 2014 evidence.

HER HONOUR: Yes. That's right.

[PROSECUTOR]: As it is. But - and perhaps I'll focus on the word, 'substantially.'

HER HONOUR: Yes.

[PROSECUTOR]: That's the word I should focus on.

HER HONOUR: Yes.

[PROSECUTOR]: Certainly, the absence of the 2001 evidence would weaken the prosecution case.

HER HONOUR: Yes. Would it substantially weaken it, that's the question.

[PROSECUTOR]: That's the real question.

HER HONOUR: Yes.

[PROSECUTOR]: The 2001 -

HER HONOUR: You could run your case without it, you'd still have an arguable case.

[PROSECUTOR]: Absolutely.

HER HONOUR: Yes. And you would've run your case if you didn't have the 2001 evidence.

[PROSECUTOR]: Absolutely.

HER HONOUR: And it would've passed all the threshold tests for whether it was appropriate to lay the charges and reasonable prospects of conviction, no doubt about any of that.

[PROSECUTOR]: Precisely.

27 We note in passing that the judge was not assisted by reference to authority regarding the meaning of s 295(3)(a). As well as leading to a focus on the proper test, such reference to authority would also have drawn attention to two other matters. First, it would have highlighted the need for vigilance in the granting of certificates under s 295(3)(a).[10] Secondly, it would have drawn attention to the desirability of the judge giving short reasons explaining why the case was a proper one for certification. Such reasons are important to give this Court a clear indication of why the judge considered the evidence to be of the requisite character.[11]

'Eliminate or substantially weaken the prosecution case'

28 Although the interlocutory appeals regime has been in operation since 2010, this Court has only rarely had occasion to consider the scope of the phrase 'eliminate or substantially weaken the prosecution case' in s 295(3)(a). The first occasion was in the early case of CGL, which concerned a ruling with respect to evidence of an admission made by an accused. Although the judge had certified under s 295(3)(a), the Court refused leave to appeal, holding that the evidence - if excluded - would not have 'eliminated or substantially weakened' the prosecution case.

It is unnecessary for the purpose of these reasons to express any view about just how significant a piece of evidence the admission might be. The prosecutor properly concedes that it is of real assistance to the prosecution case to have the confession evidence. But the foundation of the prosecution case is the evidence of the complainant who, the Crown consider, is a credible witness. It would seem likely that, if the evidence of the complainant were accepted by the jury, the prosecution case would be made out. In the circumstances, the exclusion of the admission would clearly not have eliminated the prosecution case, nor can it be said that its exclusion would have 'substantially weakened' the prosecution case.

In the course of argument, Bongiorno JA suggested that some guidance in assessing whether the exclusion of evidence would 'substantially weaken the prosecution case' might be found in considering what effect the loss of the relevant evidence would be likely to have on the view of the Crown as to the propriety of proceeding with the case. With respect, that seems to me to be an illuminating way of approaching this question. If the evidence is of such importance that its exclusion could be properly said to 'substantially weaken' the prosecution case, then the situation would presumably be one which called for serious consideration by the Crown about whether the prosecution case should go ahead.

Whether that is in the end an appropriate way to test this question will require further consideration. His Honour having raised that question, however, the prosecutor indicated to the court that, as the prosecutor responsible for this case, she would have had no hesitation at all in proceeding with the case had the confession evidence been excluded. With respect, that seems to me to be an unsurprising response in the circumstances. Taking the evidence of the complainant at face value, the prosecution case would have retained very real strength, and would not have been 'substantially weakened', had the admission evidence been excluded.

The certificate under s 295(3)(a) is an important element in the management of this new procedure. Although we have no formal function of reviewing the grant of a certificate (in contrast to our function under s 296 of reviewing a refusal to certify), it will ordinarily be relevant on an evidentiary application of this kind to examine the significance of the evidence by reference to the test in s 295(3)(a). If, as here, this court comes to a different view about the significance of the evidence in question, that is likely to bear heavily on the exercise of the discretion under s 297(1) to grant or refuse leave to appeal. Accordingly, it seems to me to be important that a judge who certifies that the evidence is of the requisite character should give this court some indication of why he or she came to that view. The reasons can be quite short but should be sufficient to explain how the judgment about the importance of the evidence was arrived at.

30 Senior counsel for the applicant helpfully drew attention to ZL v The Queen,[13] where the interlocutory appeal concerned a ruling that two witness statements be admitted into evidence under s 65(2)(b) of the Evidence Act 2008. The Court (Nettle JA, with whom Bongiorno JA and Ross AJA agreed) followed CGL in treating the s 295(3)(a) question as relevant to the determination of whether leave to appeal should be granted.[14]

31 As to the test, the Crown had submitted to the judge (consistently with CGL) that the test for 'substantially weaken' was whether exclusion of the evidence would call into serious question whether the prosecution should proceed. On the appeal, however, the Crown submitted, and the Court accepted, that the phrase 'eliminate or substantially weaken' in s 295(3)(a) should be construed in the same way as the identical phrase in the corresponding New South Wales legislation.[15] The relevant New South Wales authority was R v Shamouil, where Spigelman CJ said '[e]ven a case which is otherwise likely, even very likely, to succeed, may still be 'substantially weakened', if evidence of cogency or force is withheld'.[16]

Contrary to the Crown's submissions below, counsel for the Crown urged us to adopt a similar view of the section. He submitted that, given that Parliament enacted s 295(3) of the Criminal Procedure Act [2009] in terms which, so far as relevant, are identical to the s 5F(3)(a) [sic] of the Criminal Appeal Act 1912 (NSW), it should be taken to have intended that s 295(3) be construed in accordance with Shamouil.

I accept that submission. The words 'substantially weaken the prosecution case' in s 295(3) of the Criminal Procedure Act 2009 are in pari materia with the words 'substantially weaken the prosecution case' in s 5F(3)(a) [sic] of the Criminal Appeal Act 1912 (NSW) and, therefore, in the absence of any indication to the contrary, it may be assumed that Parliament intended that they should bear a similar meaning.

So to say does not detract from the importance of the warning sounded by Maxwell P in CGL v Director of Public Prosecutions (Vic) (No 2) that trial judges and prosecutors must exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this Court become bogged down in a way Parliament cannot possibly have intended with applications for leave to appeal against evidentiary rulings. As counsel for the Crown rightly submitted, therefore, proper application of the Shamouil test does not justify an interlocutory appeal unless a major or very important piece of evidence is in issue. It is not enough that the exclusion of evidence may 'significantly' weaken a Crown case. In this context, 'substantially' connotes something more than 'significantly'. It bespeaks evidence which is of major importance or at least is very important to the Crown case under consideration.

33 In our view, consistently with what was said in ZL, the expression 'eliminate or substantially weaken' conveys a clear legislative intention that there be a high hurdle for certification where an interlocutory decision concerns the admissibility of evidence. That is especially so given that - in contrast to the position in New South Wales - the right to challenge an evidentiary ruling is conferred on the defence as well as on the Crown. As Maxwell P stated in CGL, the need for stringency is plain enough, given the multiplicity of evidentiary rulings given in trial courts every day.[18]

34 The Court has developed a substantial jurisprudence on interlocutory appeals since CGL and ZL. Nothing has been said, however, to weaken the emphasis on stringency in relation to evidentiary rulings. If anything, those early views have been strengthened. For example, in 2015 in Director of Public Prosecutions v Pace (a pseudonym), the Court said that the introduction of the interlocutory criminal appeals regime 'was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable'.[19] While this observation has been made in the context of the decision whether to grant leave, as a statement of the underlying purpose of the interlocutory appeals regime it bears also on the test for certification in respect of an interlocutory decision regarding the admissibility of evidence. The test laid down in ZL reflects the context in which the expression 'eliminate or substantially weaken' is used in s 295(3)(a). A certificate cannot be granted unless the evidence in question is of 'major importance' or 'very important' to the Crown case.[20]

35 The foundation of the prosecution case is what was found at the applicant's property in 2014. The Crown will rely on the inferences to be drawn about the purposes for which the relevant substances and equipment were present on the property, and about the applicant's knowledge and intention with respect to those substances and that equipment. The drawing of those inferences will rest principally on the fruits of the 2014 search.

36 It is true that the case will be strengthened if relevant inferences can be drawn - as the judge concluded they could be - from the 2001 evidence. The 2001 evidence is significant for that reason. But in light of the other evidence upon which the Crown will rely, and in light of the prosecutor's submissions quoted above, it could not be said that the 2001 evidence was of 'major importance' to the Crown case. For that reason, the Crown case would not be 'substantially weakened', within the meaning of s 295(3)(a), if the evidence were to be ruled inadmissible.[21] That conclusion bears heavily on the exercise of the Court's discretion under s 297(1) whether or not to grant leave to appeal.[22]

37 Section 297(1) of the Criminal Procedure Act 2009 provides that the Court may give leave to appeal against an interlocutory decision only if it is satisfied that it is in the interests of justice to do so, having regard to the matters set out. Having regard to those matters, we were not satisfied that it was in the interests of justice to grant leave.

38 As already mentioned, our decision to refuse leave did not depend only on our opinion that this was not an appropriate case for the grant of a certificate under s 295(3). We also refused leave because in our view the questions sought to be raised on the interlocutory appeal should be determined at the trial.

39 In the first place, if and when the applicant articulates a defence, the issues are likely to change. After noting that, as matters currently stood, the defence had essentially made a general denial of the Crown's allegations, the trial judge observed that it could 'fairly be said' that the Crown was to be put to proof in respect of the applicant's 'state of mind', by which the judge meant the relevant mental elements in relation to the possession and trafficking charges.[23]

40 In the applicant's written summary of contentions it was not conceded that the 2001 evidence was relevant at all. In oral submissions it was suggested that a detailed review of the evidence would reveal such a 'disconnect' between the evidence concerning the 2001 events and the evidence concerning the current charges as to impugn the judge's conclusion that the evidence was relevant within the meaning of s 55 of the Evidence Act.

41 In circumstances where there has been no clear indication of what the defence will be, there is every chance that the judge will be called upon to assess large questions of relevance within the meaning of s 55, and probative value, in a different context during the trial. These are matters which are likely to become clearer as the trial progresses. Once the nature of the defence does become clear, the evidence concerning the 2001 events may well be revealed to be more or less relevant and probative than presently appears.

42 Secondly, the prosecutor indicated in oral submissions before the making of the ruling that he would be having discussions with other counsel regarding a possible 'fall back position' the Crown might adopt. In written submissions, counsel indicated that the Crown maintained a willingness to eliminate the potential for unfair prejudice, in particular by leading evidence of the amount of methylamphetamine upon which the applicant was sentenced in 2004 (8 ounces or 224 grams), rather than the full amount actually found in 2001 (595 grams). (The former amount does not exceed what was then a commercial quantity under the Drugs, Poisons and Controlled Substances Act 1981; the latter does.) It is clear that the actual evidence that may ultimately be sought to be led by the Crown has itself not been finally settled, despite the ruling.

43 Thirdly, as noted above, the judge left open the possibility that the evidence in question might ultimately be permitted to be relied upon as coincidence evidence. This again highlights that the probative value of the evidence in question is not yet clearly identified.

44 In these circumstances it would potentially be futile, or at least quite unhelpful, for this Court to address the issues now sought to be raised. It would be unsatisfactory for this Court to embark upon an assessment of the relevance and probative value of the evidence or, more accurately, an assessment of whether the trial judge made a relevant error in relation to that issue, in circumstances where developments in the course of the trial might very well have a significant impact on that assessment.

45 Those developments may call for further rulings by the trial judge in order to determine the real issues of admissibility as they ultimately appear. It is preferable for the matter to be dealt with on appeal, if at all, only after all the evidence has been led and full submissions as to its admissibility have been made and ruled upon in the context of the trial as it is ultimately conducted. Unless leave were to be granted on a further interlocutory application at that time (as to which prospect we say nothing), the matter would arise only upon an appeal following any conviction.

46 Finally, the parties at the hearing in this Court accepted that the test to be applied in reviewing the ruling of the judge under s 137 of the Evidence Act by way of interlocutory appeal was that stated in House v The King.[24] Assuming that to be so, the need to establish error of that kind presents an additional difficulty in persuading the Court to grant leave.[25]

47 For these reasons, we refused the application for leave.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] [2015] VSCA 116 ('Ivanoff').

[3] See, eg, MA v The Queen [2011] VSCA 13; (2011) 31 VR 203, 207 [12] (Redlich JA; Weinberg and Bongiorno JJA agreeing) ('MA'); KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11, 13 [13] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA); DPP v Garrett (a pseudonym) [2016] VSCA 31 [3] (Maxwell P, Redlich and Beach JJA).

[4] [2010] VSCA 24; (2010) 24 VR 482, 483 [5] ('CGL'). See also ZL v The Queen (2010) 208 A Crim R 325, 329 [20] (Nettle JA; Bongiorno JA and Ross AJA agreeing) ('ZL'); MA [2011] VSCA 13; (2011) 31 VR 203, 205 [4].

[5] Grounds 3 and 4, relating to the evidence of the finding of methamphetamine in the gas bottle seized from the property, were abandoned.

[6] DPP v [Russell] (Unreported, County Court of Victoria, Judge Hampel, 11 April 2016) [52] ('Reasons').

[7] [2015] VSCA 116.

[10] See [5] above.

[11] CGL [2010] VSCA 24; (2010) 24 VR 482, 484 [13] (Maxwell P), 485 [20] (Bongiorno JA).

[12] Ibid 484 [10]-[13] (emphasis altered).

[13] (2010) 208 A Crim R 325.

[15] See Criminal Appeal Act 1912 (NSW) s 5F(3A).

[16] [2006] NSWCCA 112; (2006) 66 NSWLR 228, 234 [37]. See also R v SJRC [2007] NSWCCA 142 [56] (Rothman J).

[17] (2010) 208 A Crim R 325, 329 [18]-[20] (emphasis altered) (citations omitted). See also CJD v The Queen [2012] VSCA 329 [16] (Osborn JA; Buchanan JA agreeing).

[18] [2010] VSCA 24; (2010) 24 VR 482, 483 [5]. See also MA [2011] VSCA 13; (2011) 31 VR 203, 207 [12] (Redlich JA; Weinberg and Bongiorno JJA agreeing).

[19] (2015) 45 VR 276, 284 [24] (Priest and Beach JJA); DPP v Wise (a pseudonym) [2016] VSCA 173 [5] (Warren CJ, Weinberg and Priest JJA) ('Wise').

[20] See also Wise [2016] VSCA 173 [10]-[11].

[22] CGL [2010] VSCA 24; (2010) 24 VR 482, 484 [13] (Maxwell P; Buchanan and Bongiorno JJA agreeing); ZL (2010) 208 A Crim R 325, 329 [20] (Nettle JA; Bongiorno JA and Ross AJA agreeing).

[23] Reasons [47]; see generally at [45]-[47].

[24] [1936] HCA 40; (1936) 55 CLR 499. See also McCartney v The Queen (2012) 38 VR 1, 11 [46]-[48] (Maxwell P, Neave JA and Coghlan AJA).

[25] See MA [2011] VSCA 13; (2011) 31 VR 203, 207 [13] (Redlich JA; Weinberg and Bongiorno JJA agreeing).