The Queen v Tran & Ors [2013] VSC 153

3 It is the incident involving Olivia Ferguson and Matthew Anderson that gives rise to the charges now being dealt with on this trial. Each was restrained on the ground and then forcibly removed from the casino whilst Dunning remained inside unconscious and being treated before his eventual removal to hospital.

4 A jury has not yet been selected and applications have been made concerning some of the charges in the indictment. As to those charges, which I will shortly identify, the application is that they be permanently stayed as an abuse of process on the dual basis that the charges are foredoomed to fail due to a lack of evidence and, alternatively, that the charges are unfairly oppressive because of the late stage at which they have been brought.

5 For the purposes of this ruling, the relevant factual overview is set out in the Summary of Prosecution Opening in the following terms:

3. Dunning and his friend, Matthew Anderson and Anderson's partner, Olivia Ferguson, all attended at the Casino at about 6 pm on Sunday 3 July 2011, having earlier spent the afternoon at the football at the MCG. The three then spent the evening gambling and drinking alcohol. At about 10.30 pm, Anderson and Ferguson left Dunning at a roulette table and attended at the Food Court to get something to eat.

4. At about 10.43 pm, Dunning was observed by a security officer Matthew Lawson standing on the gaming floor outside the Velvet Bar with his mobile phone in his hand. Lawson formed the view that Dunning was intoxicated and should be asked to leave the premises. In accordance with the required procedures, he called the control room, notified staff of the presence of an intoxicated patron, and asked for "coverage" of the specified area, which meant video surveillance from the security cameras. Further security staff attended at the location where Lawson was waiting to approach Dunning. Amongst those who attended were the three accused, including the accused Tran whose position was that of a supervisor.

5. Once sufficient security staff had arrived at the location and surveillance was in place, Lawson approached Dunning and asked him to leave the Casino. After a short conversation, Dunning complied with the request and commenced to walk towards the exit in the company of Lawson and other security staff.

6. As he proceeded to the exit, Dunning met up with Anderson and Ferguson. A conversation then ensued between Dunning and his friends and security staff. During this conversation, for some reason Dunning's earlier ready compliance with the requirement of security staff that he leave the premises changed to reluctance. After several minutes of conversation, during which Ferguson and Anderson were encouraging their friend to comply with the request to leave, he did agree to leave the premises, and commenced to walk off in the company of security staff. Anderson followed a short distance behind, with Ferguson further still behind.

The alleged crimes

7. As Ferguson followed in the direction of Dunning, the accused Tran turned and made a comment to Lawson. Although the comment is not able to be discerned from the CCTV footage which has no audio, and is not able to be specifically recalled by Ferguson, it is apparent that it was audible to her. Her best recollection now is it was an inappropriate comment about Dunning. (Depositions page 572, Trial of Lawson and others page 246) Ferguson quickly responded to the comment by slapping Tran to the face with quite modest force. He immediately grabbed her around the neck with his right arm and unnecessarily and violently brought her to the floor face first and restrained her there. Another member of the security staff Chris Turner assisted Tran in "restraining" Ms Ferguson on the floor. The evidence of Ferguson and a number of Casino patrons who observed the event and the available CCTV footage will make it clear there was no resistance from Ferguson at any time once she was on the ground and that any physical force applied or any restraint of her there was entirely unnecessary. Ferguson will indicate that while her arms were pinned behind her back, she was repeatedly called a slut and a whore and told not to move.

8. About 54 seconds after having been thrown to the floor, Ferguson was lifted to her feet by Tran and Turner. She was apparently in a dazed and shaken state. 38 seconds after this, at 10.48.28, the left arm of Ferguson was handed to another member of the security staff, Adam Hewetson, by Tran. Tran then supervised the removal of Ferguson from the Casino by Hewetson and Turner. During this movement, strong and unnecessary restraint involving the use of wrist locks was maintained over Ferguson, all under the supervision of Tran. Substantial pain was caused to Ferguson by Turner and Hewetson during the course of this. Ferguson was then expelled from the Casino at the Whiteman Street exit. This occurred at 10.50.07, in excess of three minutes after she had been thrown to the ground by Tran.

9. Upon seeing his partner violently put to the ground in the manner described above, Anderson moved a short distance in her direction. He was immediately grabbed by the accused Fucile and Levchenko and unnecessarily and violently thrown to the ground on his back and held by the throat. Immediately, the two accused made efforts to turn Anderson onto his front, and once this had been accomplished, his face was forced into the floor. Anderson was then restrained for quite some time on the floor, during which his arms and fingers were pulled back and he was threatened with physical harm. At one point, one of the attackers said of Anderson, "This weak cunt's bleeding on me", and Anderson also heard someone say, "Your wife's a slut and she's on the fucking ground as well." During the course of this continuing assault upon him, Anderson sustained a broken nose and a fractured left elbow.

10. The evidence of Anderson himself, other civilian eye witnesses, and the CCTV footage, will make plain the fact that at no time did Anderson put up any physical resistance to what was being done to him on the floor.

11. At about 10.48.30, Anderson was lifted to his feet by Fucile and Levchenko. There was one accused holding onto each arm of Anderson. About 12 seconds later, they started to move him in the direction of the Sante exit of the Casino. He was taken to the exit of the Casino out onto the promenade along the Yarra River before being pushed onto the start of the pedestrian bridge leading up to King Street. The release of Anderson occurred at 10.51.32. Throughout the journey from inside the Casino to the point of release, he was restrained by his arms, involving the use of wrist locks which caused pain.

12. After her release on the Whiteman Street side of the Casino, Ferguson was dazed and in pain, and had lost her glasses. Anderson at the time of his release was bleeding and in significant pain from the injuries he had received. Eventually, Ferguson and Anderson were able to find each other.

13. On 5 July 2011, Ferguson and Anderson made statements to the police and an investigation commenced.

6 Thus, Quoc Tran is charged in relation to his actions in placing Olivia Ferguson on the ground and the actions of others concerning the removal of Olivia Ferguson from the casino. These charges are:

• Common assault (charge 1) ;
• False imprisonment (charge 4),
• Intentionally causing injury (charge 5); and
• Recklessly causing injury (charge 6).

7 The manner in which the Crown case is to be put against Tran is set out in the Crown opening summary as follows:

The case against Tran in respect of Charge 1 is that whilst he had been slapped by Ferguson, which would have entitled him to respond in some way, his actual response was not justified and was unlawful and constituted an assault. There was no justification at all for him to forcefully take her to the ground, and his continuing physical dealing with her while she was on the ground was also unnecessary and unlawful and constituted part of a continuing assault. Whilst some response to the slap inflicted by Ferguson may have been lawful, the level of force used by Tran from the commencement of his physical dealings with Ferguson was excessive and quite unjustified. The continuing assault constituted by Charge 1 encompasses all of the conduct of Tran towards Ferguson from the time he initially grabbed her to sling her to the ground until such time as he handed the left arm of Ms Ferguson to Hewetson in preparation for her removal from the Casino.

In respect of Charge 4, that is a charge of false imprisonment that covers the restraint of Ferguson from the time Hewetson grabbed hold of her arm until she was released in Whiteman Street at about 10.50.07. It will be alleged that there was no justification for the liberty of Ferguson being restricted during that time, or restricted in the manner in which it was. She was not given the opportunity of leaving the Casino of her own volition, and nor did she ever refuse to do so. Insofar as the physical force applied to Ferguson to affect the false imprisonment was applied by Turner and Hewetson, the accused Tran counselled or procured that conduct, or in the alternative at all times the three men were acting pursuant to a common purpose to detain Ferguson as was done.

In respect of Charge 5, that concerns the unnecessary physical force that was applied to Ferguson during the course of the false imprisonment by Turner and Hewetson. That force included the use of wrist locks upon Ferguson that were intended to and did cause pain. "Injury" includes pain. (Section 15, Crimes Act 1958.) The accused Tran counselled or procured the actions of Turner and Hewetson, or alternatively was acting pursuant to a common purpose with them in the infliction of injury upon Ferguson.

Charge 6 is laid in the alternative.

The Case Against Nicholas Levchenko and Jacques Fucile

8 Levchenko and Fucile are both charged with the following counts in relation to Matthew Anderson:

• Recklessly causing serious injury (charge 2);
• Intentionally causing injury (charge 3);
• Unlawful imprisonment (charge 7);
• Intentionally causing injury (charge 8);
• Recklessly causing injury (charge 9).

9 The manner in which the Crown case is to be put against Levchenko and Fucile is also set out in the Crown summary if opening:

The case against each of these accused on Charge 2 is put on the basis that their actions in forcefully throwing Anderson to the ground and then restraining him there in the way in which they did constituted a continuing unlawful assault, there being no justification for that level of violence towards Anderson. During the course of this attack upon Anderson, he sustained a broken nose and a fractured wrist. In combination his injuries were serious. It is alleged that the two accused realized at the time of their actions that those actions would probably result in serious injury to Anderson, but went ahead with their actions in spite of that risk. The continuing assault constituted by charge 2 encompasses all the conduct of the accused until such time as they commenced to move Anderson towards the exit of the Casino at about 10.48.42.

Charge 7 concerns the unnecessary restraint of Anderson by the accused from the time they commenced to remove him from the Casino at 10.48.42 until he was released onto the footbridge on the river side of the Casino at 10.51.32. It will be alleged that there was no justification for the liberty of Anderson being restricted during that time, or restricted in the manner in which it was. He had done nothing whatsoever wrong and had not at any time been asked to leave the Casino. He was not given the opportunity of leaving the Casino of his own volition, and nor did he ever refuse to do so.

In respect of Charge 8, that concerns the unnecessary physical force that was applied to Anderson during the course of the false imprisonment by the accused. That force included the use of wrist locks upon Anderson that were intended to and did cause pain. "Injury" includes pain.

10 On 6 July 2012 following a committal proceeding, the accused were each committed to trial in the Supreme Court along with Lawson, Sanderson and Vigo. Tran was committed to stand trial on charges of the assault, intentionally cause injury, recklessly cause injury and a further charge of assault. I understand that the first three charges relate to Tran taking Olivia Ferguson to the ground and restraining her there, and that the final charge of assault was alleged to have been committed by counselling or procuring Matthew Lawson to assault Dunning. Levchenko and Fucile were each committed to stand trail on the charges of recklessly causing serious injury and recklessly causing injury to Matthew Anderson.

11 In pre-trial directions, Coghlan J ordered that Tran, Levchenko and Fucile be tried separately to Lawson, Sanderson and Vigo. On 17 August 2012, an indictment was filed before King J which contained charges against Tran for the assault of Olivia Ferguson and the assault of Dunning and against Levchenko and Fucile for recklessly causing serious injury to Matthew Anderson.

12 On 15 February 2013, the prosecution provided to the Court and the instructing solicitors for the accused a new indictment proposed to be filed with the Court. It charged the accused with the offences outlined above and was accompanied by the summary of prosecution opening outlining the basis on which the charges are put.

13 On 4 April 2013, Mr Carter on behalf of Tran, argued that charges 5 and 6 should be permanently stayed as they are an abuse of process. Mr Hill QC made the same application on behalf of Levchenko in respect of charges 8 and 9. Mr McMahon made the same application on behalf of Fucile and adopted Mr Hill's submissions.

14 It is necessary to commence the analysis by identifying what the Crown must prove beyond reasonable doubt in order to establish the offence of intentionally or recklessly causing injury. The essential elements are:

• First, that the complainant suffered an "injury".
• Second, that the accused caused the complainant's injury.
• Third, that the accused intended to cause injury, or, in the case of recklessly causing injury, knew that injury was the likely result and proceeded anyway.
• Fourth, that the accused acted without lawful justification or excuse.

15 For the purpose of this application it is necessary to concentrate on the first element of injury. "Injury" is defined in s 15 of the Crimes Act 1958 as including "...unconsciousness, hysteria, pain and any substantial impairment of bodily function." This definition is not exhaustive and injury is to be regarded as an ordinary English word. It is for the jury to determine whether the person concerned suffered an injury.[1]

16 On behalf of the accused Tran, Mr Carter of counsel has submitted that charges 5 and 6 should be stayed as an abuse of process, firstly, because there is no evidence of injury to Olivia Ferguson. It is correct, as Mr Carter submits, that Ms Ferguson has not yet said that she suffered pain as a result of the hold that was being applied to her to remove her from the premises.

17 Second Mr Carter argued that these charges, if allowed to proceed, are unjustifiably oppressive. It needs to be born in mind that the point at issue is not how the witnesses, including Ms Ferguson, were treated but whether, in each case, they felt pain. As I followed Mr Carter's argument the oppression is primarily because of the manner in which the committal would have been conducted had the charges been laid originally. Mr Carter submitted that at the committal, the following things would have occurred:

• Cross examination of civilian witnesses as to what they saw and heard;
• Cross examination of Ferguson and Anderson as to what they did and what they said;
• Cross examination of Ferguson as to how she was held and whether there was pain; and
• Cross examination regarding training and the efficacy of holds.

18 In the result, and in reliance on the judgment of the High Court in Barton,[2] Mr Carter submits that given these matters were not explored at the committal because the charges had not been laid, the charges should now be stayed as an abuse of process.

19 On behalf of the accused Levchenko, Mr Hill QC submitted that in relation to his client's actions concerning Mr Anderson, there is no evidence that Anderson was injured in the sense that any wrist lock or other method used to remove him from the premises caused him pain.

20 It is common ground that nowhere in the evidentiary material does Matthew Anderson say that he suffered pain as a result of being wrist locked and removed from the premises. Indeed, Mr Hill QC points out that Anderson has not said that he was wrist locked and suffered pain as a result. Although accepting that the CCTV demonstrates that Anderson was being taken from the premises in a way likely to cause pain, he asserts that there is no evidence on the existing material which would permit a jury to draw the necessary inference. He gave a number of reasons why I should reach that conclusion. It is therefore submitted that the particular charges are an abuse of process because they are "foredoomed to fail" and should be permanently stayed.

21 In response to the suggestion that the witnesses should now be asked to either make a further statement or give evidence on the Basha enquiry, Mr Hill submitted that to do that would be contrary to all the rules of fairness that operate and that such a course "is simply not permissible".[3]

22 Mr McMahon, on behalf of the accused Fucile, had filed written submissions and adopted the submissions of Mr Hill QC and, to the extent that they applied to his client, Mr Carter.

23 Mr Tinney SC, on behalf of the Crown does not accept there is a lack of evidence as asserted. He submitted that the conclusion that Olivia Ferguson suffered pain from the wrist locks applied to her is a matter about which an inference could be drawn. He played a video from the CCTV footage which apparently shows Ms Ferguson in pain. The same inferences, he argued, were open in relation to Mr Anderson, though he accepted that the evidence was less clear.

24 Mr Tinney said that he anticipated, though he did not know, that if Ms Ferguson was asked she would say she remembers being in pain as the result of the manner in which she was removed from the premises.

25 As to the issue of unfair oppression, Mr Tinney SC submitted that the accused also faced charges of false imprisonment which were new charges not laid prior to February 2013 and noted there was no application in relation to those charges. Essentially he submitted there was nothing standing in the way of a fair trial.

26 At the outset I should say that these circumstances are most unsatisfactory. If the prosecution wished to proceed with the charges the subject of this application then they should have made the enquiries with the central witnesses in order to establish what they would say on the issue. If those witnesses indicated that their evidence would be that they suffered pain in the particular circumstances then a further statement could have been obtained and disclosed to the accused. The witnesses could then be the subject of a preliminary examination before me together with any other witnesses whose evidence is affected.

27 To be commencing the trial not knowing what the two central witnesses would say when asked about this issue strikes me as extremely unusual, to put it neutrally.

28 There have been many statements of principle concerning the issue of abuse of process and including proceedings which are said to be foredoomed to fail. The grant of permanent stay has been uniformly described as an exceptional step for a judge to take.

29 In Walton v Gardiner, Mason CJ, Deane and Dawson JJ said:[4]

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.

If a party instituting proceedings does so for a purpose alien to the purpose which the proceedings are designed to serve, the proceedings are an abuse of process whether or not they are well founded in fact and law (Williams v Spautz.). And equally, the institution of proceedings which will inevitably and manifestly fail (Cox v Journeaux (No.2_[6]_); Dey v Victorian Railways Commissioners[7]; General Steel Industries Inc v Commissioner for Railways (NSW).[8]

30 In Victoria, the issue of the granting of a stay on the basis that a criminal prosecution was foredoomed to fail was considered by the Full Court of this Court in R v Smith.[9] In that case, eight members of the Victoria Police Force were charged in relation the shooting by members of the Armed Robbery Squad of a criminal named Graeme Jensen. The eight accused were charged with his murder. The trial judge, Vincent J, stayed the case against five of the accused on the basis that the case against them was an abuse of process because it was foredoomed to fail. The Appeal Division of this Court (per Brooking, Byrne and Eames JJ) allowed the appeals of the Director of Public Prosecutions against the five orders for a permanent stay.

Assuming in favour of the respondents that a stay may be granted at the outset of a criminal trial on the ground that the Crown will be unable to make out a case to answer, having regard to the available evidence, that inability of the Crown must be clear beyond argument. If it is fairly arguable that on the evidence available to the Crown there will be a case to answer, the prosecution is not in the necessary sense clearly shown to be foredoomed to fail so as to be shown to be an abuse of process (added emphasis).

32 In judgment of Eames J the following appears:[11]

The real question is whether the passage in Doney, to which I have made reference and which relates to the principles relevant to a submission of 'no case', embraces the concept of the case being 'so clearly untenable' that the prosecution cannot possibly succeed, as stated by Barwick CJ in General Steel, or the concept of the case being ' foredoomed to fail ' stated in Walton where the application before the court is for a stay of proceedings. In my opinion it does not and, accordingly, his Honour has applied the wrong test in determining the application for a permanent stay.

The tests are very similar but, in my opinion, the very considerable emphasis given in the decided cases to the exceptional care which must be given to any such application, and the expected rarity of the success of such an application, suggests a test more onerous than that which would apply to a no case submission. Having had the advantage of reading the judgment of Brooking J, I am content to adopt the formulation of the test as proposed by his Honour, namely, that it must be clear beyond argument that the Crown is unable to make out a case to answer, having regard to the evidence available to it. A test stated in such stringent terms would be consistent with the often stated acknowledgment that the courts are not to interfere with the discretion residing in prosecuting authorities to determine which trials are to be prosecuted in the courts: Connelly v Director of Public Prosecutions [1964] AC 1254 at 1304; Jago at 39 per Brennan J; cf Mason CJ at 28. The rarity of the success of such an application as that presently under consideration may be gauged by the fact that counsel were unable to cite a single instance of such an application succeeding on grounds such as those argued here.

33 I should note that without dealing with the merits of the judgment relevant for my purposes, the High Court did allow an appeal and overturned the decision of the Full Court on the basis that there was no power to appeal against the order made by the trial judge at first instance in Victoria.[12] That said, I act on the basis that the considered judgments in Smith contain statements of principle I should follow. It has not been argued otherwise.

34 In my opinion, the applications of the accused are premature. The charges which are sought to be stayed are based on the contention that in the course of the application of wrist locks by the accused, both Ferguson and Anderson suffered pain such as to cause injury within the meaning of the definition of that word in s 15 of the Crimes Act for the purpose of the offence of intentionally causing injury. Those witnesses are the two central witnesses in this trial. At this stage it is not known what they would say when asked whether the application of the wrist locks caused them pain. Having determined to include these charges in the indictment, I am unable to understand why the prosecution did not arrange for further statements to be obtained from them. It may be that one or other of them would say they cannot recall or that the wrist locks did not cause pain. If that is so, that would be the end of the counts under consideration. On the other hand, one or other or both of them may say that they do recall feeling pain as a result of that force being applied. In those circumstances and for my purposes considering this application, how can it be "...clear beyond argument that the Crown is unable to make out a case to answer, having regard to the evidence available to it"?

It may be - we need not decide this - that in a quite exceptional case, where it was plain beyond argument that there was no evidence available of some essential element of the crime, a trial judge, being satisfied of this at the outset, could properly determine that the prosecution should be stayed as an abuse of process. If such an application for a stay was made, it may be that the trial judge would have a discretion to decide whether to deal with the application on the merits or to conclude that the interests of justice would be better served by allowing the prosecution to proceed to the point at which a no case submission could be made. But the present is not at all that kind of case.

36 Here it cannot be said that it was plain beyond argument that there is no evidence available of an essential element of the crime. This debate has been conducted as though the evidence is completed when, in fact, it has not commenced. The Crown contend that inferences can be drawn to support proof of injury as things presently stand but the witnesses themselves may give direct evidence about it.

It was contended by the parties before the primary judge and accepted by him that the proper test for such an application is that applicable upon an application usually made at the end of a Crown case seeking a directed verdict of acquittal on the ground that there is no case to answer. The primary judge proceeded on this basis, saying that it was not unheard of for such an application to be made before the end of the Crown case and sometimes, albeit rarely, at the outset of the proceeding. It seems likely, however, that his Honour was there referring to the practice where a trial judge invites the prosecutor to lead no further evidence where it is clear that no further evidence which may be led will defeat a successful no case submission, That is a far cry from the present, for such a case involves no coercive decision by the judge, but rather an exercise of persuasion upon a compliant prosecutor_. If the prosecutor does not share the judge's view of the prospect of success, the Crown case must proceed to its conclusion at which time the question of a no case submission might arise._

38 In this case, Mr Tinney SC has referred to evidence from the depositions and from the earlier trial from which he argues a jury could infer that Ms Ferguson and Mr Anderson suffered pain.

39 He also made it clear that he does not accept the pessimism of the accused in whether the Crown have any prospect of success and at this stage of proceedings it seems to me that the matter must proceed, subject to second submission of Mr Carter as to unfair oppression. I will come to that shortly. In my opinion it is not possible for me to conclude that there is no evidence "available" which would support the particular element of the charge of intentionally causing injury. There is the evidence to which the prosecutor has already referred. What is not yet known is what Ferguson and Anderson would say in answer to the direct enquiry as to whether they suffered pain caused by the way they were held when being removed from the premises. To the extent that evidence is "available" that needs to be discovered and disclosed. If at the end of the Crown case there is an absence of evidence supporting the charges then a submission can be made that those charges should be withdrawn from the jury's consideration.

40 Therefore, subject to the second consideration, in those circumstances, the most appropriate course to follow would be for the Crown either to take a statement from both Ferguson and Anderson or call them at a preliminary hearing pursuant to s 198 of the Criminal Procedure Act 2009. Before making an order under that section, I would need to be satisfied that it is in the interests of justice that the evidence of the witness be so taken. I would be. This procedure is there to cater for the serious risk of an unfair trial if the accused is not given the opportunity to examine the witness in the absence of the jury.

41 As to the argument that to proceed with charges 5, 6, 8 and 9 is unfair and oppressive and therefore justifies the granting of a stay, I reject the submission. I am unable to see how any of the steps which Mr Hill QC and Mr Carter, in particular, said would have been followed at the committal cannot now be followed in a preliminary examination of the evidence before the trial starts.

42 The judgement of the majority in Barton proceeds on the basis that what is at stake is a fair trial. As Gibbs ACJ and Mason J said in Barton:[15]

There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial.

Their Honours went on to say, dealing with the issue of the granting of a stay:

Whether such a stay should be granted depends upon a weighing up of the relevant interests which are at stake - on the one hand, the accuseds' interest in obtaining a fair trial, and on the other hand, the Crown's interest in bringing the accused to trial on serious charges...

43 Barton is not authority for the proposition that if a judge concludes that a fair trial can be had despite the absence of, or shortcomings in, a committal he or she must order that the trial be stayed. As their Honours said:[16]

It is for the courts, not the Attorney-General, to decide in the last resort whether the justice of the case requires that a trial should proceed in the absence of committal proceedings.

44 In my opinion, the forensic disadvantages and unfairness of the late decision to include charges 5 & 6 and 8 & 9 in the indictment can be ameliorated by the Director of Public Prosecutions doing what should have been months ago and obtaining details of the evidence to be given on the topic by the two witnesses concerned. If preliminary examination of them and other witnesses is required to ensure appropriate disclosure and testing before the trial commences that will be accommodated.

45 At this stage, the applications for a permanent stay of charges 5 & 6 and charges 8 & 9 are refused.

[1] R v Ferrari [2002] VSCA 186; R v Cogley [1989] VicRp 70; [1989] VR 799.

[2] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75.

[4] [1993] HCA 77; (1993) 177 CLR 378 at 392-393.

[6] [1935] HCA 48; (1935) 52 CLR 713.

[7] [1949] HCA 1; (1949) 78 CLR 62, at pp 84, 91-92.

[8] [1964] HCA 69; (1964) 112 CLR 125.

[9] [1995] VicRp 2; [1995] 1 VR 10.

[12] Smith v The Queen [1994] HCA 60; (1994) 181 CLR 338.

[13] [1995] VicRp 2; [1995] 1 VR 10 at p16.

[15] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75.