Criminal law - Rape - Evidence - Admissibility - Complaint - Propensity evidence - Grech warning - Evidence of recent sexual attack by accused on complainant's daughter - Sentence - Crimes Act 1958 (No 6231) s 398A

Criminal law - Sentence - Criminal damage - Possession of unlicensed firearm - Armed robbery - Use of motor vehicle in commission of offence - Driver's licence - Licence cancellation and disqualification order - Whether order constituted "sentence" - Substantial connection test - "In connection with the driving of a motor vehicle" - Crimes Act 1958 (No 6231) ss 566, 567(d) - Road Safety Act 1986 (No 127) s 28(1)

Statutes - Interpretation - Definition provisions - Criminal law - Road traffic offences - Definition of "sentence" - Whether inclusive or exhaustive - History of repeated and substantial changes to definition - "Includes" - "Means" - Road Safety Act 1986 (No 127) s 28(1)

Practice and procedure - Writ - Service out of jurisdiction - Application to set aside service - Contract - Carriage of goods by sea - Delay - Breach in Victoria of contract wherever made - Whether plaintiff a party to contract - Contractual negotiations by email - Falsa demonstratio non nocet cum de corpore constat - Strongly arguable case - Stay application - Forum non conveniens - Whether Victoria clearly inappropriate forum - Effect of bill of lading - Application for summary judgment by defendant - Carriage of Goods by Sea Act 1991 (Cth) s 11 - Supreme Court (General Civil Procedure) Rules 2005 rr 7.01, 7.02

Accident compensation - Workers compensation - Serious injury - Leave to commence common law proceedings - Injury suffered on or after 20 October 1999 - Onus of proof - Proof of compensable injury amounting to serious injury after relevant date - Inconsistencies in plaintiff's statements - Pre-existing injury to lower back - Exacerbation basis for claim impermissible on appeal - Accident Compensation Act 1985 (No 10191) ss 134AB(1), 134AB(16)(b), 134AB(38), 134AD, 134AE

Criminal law - Sentence - Appeal - Totality principle - Fresh evidence - Admissibility - Criteria - Facts in existence at time of sentencing - Future outcomes - Inferences - Offence committed by parolee - No action by Parole Board at time of sentencing - Subsequent parole cancellation - Additional period of incarceration - Admissible as fresh evidence on appeal - Whether sentence manifestly excessive - Sentencing Act 1991 (No 49) ss 5(2AA), 16(3B).

Criminal law - Sentencing - Recklessly causing serious injury - Unprovoked assault - Subsequent compensation order - Prospects for rehabilitation - Appellant with limited financial means - Compensation order not additional punishment - Sentencing Act 1991 (No 49) s 85B.

Defamation - Pleading - Defences - Maintainability - Interlocutory strike-out application - Comment - Jury questions - Whether publication fact or comment - Facts supporting alleged comment to be truly stated - Whether pleaded facts true - Falsity by omission - One fact literally true - Whether omitted fact necessarily implied and thereby rendering pleaded facts false - Context - Defendant entitled to rely upon context in absence of express plea - Defence wrongly struck out.

Criminal law - Practice and procedure - Fair trial - Indictable offence - Summary offences - Magistrates' Court prosecution - Appeal to County Court against convictions - Abandonment of appeal - Later application for leave to appeal out of time - Delay - Three years - Test for granting leave - Exceptional circumstances - Material prejudice - Whether County Court judge applied correct test - Magistrates' Court Act 1989 (No 51) Sch 6, cll 1(1), 1(2), 1(3)

Human rights - Equality before law - Access to justice - Fair trial - Rights of self-represented litigants - Overriding duty of trial judge to ensure fair trial - Provision of due assistance - Necessity - Proportionality - International law - Applicability of International Covenant on Civil and Political Rights.

Criminal law - Practice and procedure - Fair trial - Concession made in defence opening - DNA evidence - Withdrawal of concession - Trial judge refusing to allow - Fundamental right - Crimes (Criminal Trials) Act 1999 (No 35) ss 7(3), 8(1), 8(4).

Human rights - Fair trial - Criminal trial - Concession made in defence opening - Withdrawal of concession - Accused's fundamental right to put Crown to proof.

Accident compensation - Workers compensation - Leave to commence common law proceedings - Time bar - Serious injury - Cause of action arising before 12 November 1997 - Injury - Consequences of injury - Redundancy - Worker unable to obtain substitute employment - Worker's state of relevant knowledge - Whether knowledge first acquired before relevant date - Knowledge of severity of injury and incapacity - Knowledge of pecuniary disadvantage - Knowledge of consequential incapacity - "Incapacity arising from the injury" - Accident Compensation Act 1985 (No 10191) s 135AC(b)

Criminal law - Murder - Evidence - Admissibility - Circumstantial evidence - DNA testing - Mixed DNA - Identification of contributors - Statistical likelihood ratios - Expert opinions - Complexity - Conflict - Jury's ability to understand - Adequacy of trial judge's direction - Exculpatory statements made to investigators - Evidentiary value - Misdirection - Proviso - No miscarriage of justice - Accused's alleged post-offence conduct - Crown not relying upon consciousness of guilt - Edwards direction not required.

Criminal law - Sentence - Time spent serving sentence of imprisonment during remand - Not qualifying as pre-sentence detention - Time in custody for an offence on which offender acquitted - Parity - Sentencing Act 1991 (No 49) s 18.

Property law - Domestic partners - Property interests - Adjustment - Jurisdiction - Application - Time limit - Application out of time - Simultaneous application for leave to apply out of time - Consent orders for leave application and substantive application to be heard at same time - Whether prior grant of leave a jurisdictional requirement for substantive application - "Must" - Property Law Act 1958 (No 6344) ss 279, 282

Practice and procedure - Consent order - Whether power to discharge or vary procedural consent orders.

Administrative law - Victorian Civil and Administrative Tribunal - Discrimination complaint - School student - Learning disability - Tribunal finding complaint proved in part - Tribunal scheduling directions hearing for remedy stage and dismissing remainder of complaint - Appeal to Supreme Court - Appeal against master's grant of leave to appeal - Preliminary issue - Whether VCAT decision appellable - "Order" - Equal Opportunity Act 1995 (No 42) s 136(1) - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148(1)(b) - Supreme Court (General Civil Procedure) Rules 2005 r 77.05.

Criminal law - Murder - Mother accused of suffocating her four infant children - Children's deaths occurring over four years - Evidence - Admissibility - Province of the jury - Expert evidence - Scope of evidence of medical experts - Cause of death - Unexplained death in children - Post-mortem examination findings - Conflicting opinions as to whether homicide a possibility - Circumstantial evidence - Motive - Evidence of dysfunctional marital relationship - Evidence of family relationships - Alleged pattern of conduct said to reveal homicidal motive.

Criminal law - Sentencing - Discount - Multiple offences of violence against former domestic partner - Synthesis - "Two-tier" sentencing - Co-operation with prosecuting authorities - Trial judge allowing one year reduction from head sentence - No error of law.

Criminal law - Motor vehicles - Driving with excessive blood alcohol concentration - Evidence - Compulsory provision of blood sample - Sample to be taken by medical practitioner - Strict compliance - Certificate - Ambiguity - Presumption of regularity - "In accordance with" - Road Safety Act 1986 (No 127) ss 49, 55, 56, 57.

Criminal law - Sentence - Validity - Amendment - Power to amend - Director's appeal - Original sentence unable to be given effect - Sentencing judge's intention - Judge not informed of pre-trial detention - Effect on concurrency - Sentence recalled and amended - Sentencing Act 1991 (No 49) s 104A.

Criminal law - Sentencing - Mitigation - Offender's rehabilitation - Sexual offences - Teenage offender - Indecent assault on person under age of 16 years - Prosecution occurring two decades later - Age and immaturity of offender at time offences committed - Sentence manifestly excessive.

Criminal law - Open justice principle - Suppression orders - Necessity test - Applicable principles - Murder - Armed robbery - Three persons accused - Two co-accused pleading guilty and undertaking to give evidence against remaining accused - Order suppressing names of former co-accused and publication of their evidence until verdict or further order - Jury unable to agree - Limited suppression order continued pending retrial - Vulnerability of imprisoned former co-accused to attack inside prison - Crown supporting former co-accused's application for indefinite suppression orders - Public interest in encouraging persons to give evidence - Countervailing public interest in publicising co-accused's co-operation and sentencing - Application refused - Supreme Court Act 1986 (No 110) ss 18, 19

Criminal law - Rape - Consent - Lack of - Penetration while complainant asleep - Resumption of penetration - Complainant requiring cessation of penetration - Whether multiple acts of penetration - Whether verdict of guilty afflicted with latent duplicity or uncertainty - Verdict not inconsistent with acquittal of co-accused - Sentence.

Criminal law - Sexual offences - Elements - Rape - Statutory offence - Sexual penetration without consent - Statute specifying methods of penetration - Presentment - Duplicity - Prosecution entitled to allege alternative methods of penetration - No resulting sentencing difficulty - Crimes Act 1958 (No 6231) ssnumsp35,numsp38

Landlord and tenant - Factory premises - Lease - Interpretation - Covenant for quiet enjoyment - Covenant that landlord would keep premises watertight - Leaking roof - Roof repairs effected by landlord's contractor - Roof surfaces containing asbestos - Negligent roof cleaning - Unlawful use of high pressure water jet - Water and asbestos debris damage - Liability of landlord for breach of covenant - Loss of profits claim - "Anyone connected with the landlord".

Negligence - Duty of care - Property damage - Loss of profits - Lease - Factory - Roof repairs - Damage to lessee's machinery and ensuing prolonged cessation of factory operations - Whether landlord had discharged duty by engaging ostensibly competent contractor - Contributory negligence - "Breach of a contractual duty of care that is concurrent and co-extensive with a duty of care in tort" - Wrongs Act 1958 (No 6420) ss 25, 26

Tort - Breach of statutory duty - Whether statute conferred private right of action - Safety of premises - Asbestos - Occupational health and safety - Lessee not within intended class of persons protected by duty - Occupational Health and Safety Act 1985 (No 10190) ss 44, 59 - Occupational Health and Safety (Asbestos) Regulations 1992 regs 11, 15, 24, 25, 27, 28, 32, 33

Land tax - Exemption - Land vested in public body providing or promoting cultural or sporting recreation - Private golf club - Objectives - Golf course used predominantly by casino patrons - Club's objects clause - Greenkeepers' residences - Whether club applied its profits in promoting its objectives - "Exists for the purpose of providing" - Land Tax Act 1958 (No 6289) s 9(1)(g)

Stamp duty - Conveyance or transfer of real property - Assessment - Valuation - Manufacturing business - Management buy-out - Specific amounts of purchase price allocated to business and assets, working capital, land and buildings, and plant and equipment - Whether market value of plant and equipment exceeded agreed consideration - Whether commissioner's valuation of plant and equipment shown to be excessive - Stamps Act 1958 (No 6375) ss 17(1), 33A(2), 63(3), Heading VI, Sch 3

Criminal law - Homicide offences - Reform - Transitional provisions - Murder - Date of offence - Ascertainment - Date of death - Crime committed between dates - Statutory specification that crime alleged to have been committed before commencement of statutory reform - Victim stabbed before commencement - Death occurring after commencement - Application of statutory self-defence and defensive homicide, and common-law self-defence - Crimes (Homicide) Act 2005 (No 77) - Crimes Act 1958 (No 6231) ss 9AC, 9AD, 9AE, 603.

Criminal law - Administration of justice - Offences - Magistrates' Court - Judgment debt - Enforcement - Seizure and sale warrant - Sheriff - Seizure of heavy equipment - Walking possession - Sale of seized property without sheriff's consent - Seized property allegedly subject to fixed charge - Whether charged property constituted personal property - Whether offence applied to seized property not amounting to personal property - "Dispose" - Magistrates' Court Act 1989 (No 51) ss 111(3)(a), 111(7A), 111(7B)(a)

Judgments, orders and declarations - Enforcement - Offences - Sheriff - Magistrates' Court - Judgment debt - Seizure and sale warrant.

Criminal law - Assault - Indecent assault - Consent - Onus of proof - Proof that accused aware complainant was not or might not be consenting - Prosecution's onus - Accused suffering from disability - Asberger's Syndrome - Crimes Act 1958 (No 6231) s 39 - Summary Offences Act 1966 (No 7405) s 23

Negligence - Duty of care - Causation - Material contribution - Personal injury - Negligent exposure of plaintiff to increased risk of injury - Pre-2003 Wrongs Act amendment injury - Negligent omission - Injury to mother during childbirth - Long labour - Medical practitioner - Forceps delivery - Alleged negligent failure to perform episiotomy - Jury direction as to available chain of reasoning - Whether open for jury to find failure to perform episiotomy increased risk of injury and that risk materialised.

Criminal law - Drug offences - Trafficking - Drugs of dependence - Commercial quantities - Mixture containing two or more drugs - Presentment - As many trafficking counts as drugs within mixture - Appeal following plea of guilty - Miscarriage of justice - - Drugs, Poisons and Controlled Substances Act 1981 (No 9719) ss 71, 71AA - Interpretation of Legislation Act 1984 (No 10096) s 37.

Practice and procedure - Costs - Indemnity costs - Entitlement - Complex building design and construction contract case - Defendant's offer of compromise - Effect of non-acceptance - Defendant obtaining no less favourable result - Numerous parties - Defendant counterclaiming and adding multiple defendants - Proportionate liability claims - Contribution - Offer of compromise simultaneously directed to plaintiff's claims alone and combinations of counterclaims - Whether offer capable of acceptance by plaintiff alone - Litigation risks - Effect of selective joinder of parties - Building Act 1993 (No 126) s 131 - Wrongs Act 1958 (No 6420) s 23B - Supreme Court (General Civil Procedure) Rules 1996 Ch I rr 26.08, 26.09

Courts and judges - Procedural fairness - Opportunity to party to correct or contradict any relevant prejudicial statement - Accident compensation - Workers compensation - Serious injury - Application for leave to commence common law proceeding - Extent of applicant's incapacity - Leave refused - Judge's reasons for decision - Applicant's credibility impugned - Judge relying on observations of applicant's demeanour in court - Demeanour out of sight of counsel - Judge not disclosing that observations might be taken into account adversely to applicant - Extent of judge's duty to call attention to courtroom observations - Fairness and common sense as touchstone - Effect of non-disclosure by judge - Whether impugned decision vitiated - Denial of possibility of successful outcome - New trial ordered.

Limitation of actions - Tort - Negligence - Injury suffered in South Australia - Choice of law - Law of the place of the tort - Whether action statute-barred - Victorian legislation supplementing common law choice of law rules - Whether 2004 statutory Ipp reforms applied - Extension of time - Criteria - Victorian court directed to exercise discretion as in comparable cases in South Australia - Choice of Law (Limitation Periods) Act 1993 (No 100) ss 5, 6 - Limitation of Actions Act 1936 (SA) s 48 - Law Reform (Ipp Recommendations) Act 2004 (SA) s 76.

Criminal law - Confiscation of property - Tainted property - Forfeiture - Exclusion order application dismissed - Court purporting to make declaration as to applicant's interest in property - Power to make declaration only enlivened if order made to exclude property from automatic forfeiture - "If the court makes an order" - Confiscation Act 1997 (No 108) s 52

Criminal law - Sentence - Commencement date - Drug offences - Offender serving New South Wales sentence transferred to Victoria - Victorian sentences - Erroneously fixed to commence on New South Wales sentence commencement date - Cultivation for purposes related to trafficking an aggravating factor - Totality principle - Prisoners (Interstate Transfer) Act 1983 (No 9881) ss 25, 27, 28 - Sentencing Act 1991 (No 49) ss 16, 17.

Criminal law - Sentence - Suspended sentence - Restoration - Husband committing offences against wife - Breach of order - Subsequent offences against wife - Wife seeking withdrawal of presentment - Wife unwilling to give evidence - Husband re-establishing himself interstate - Rehabilitation - Interests of children - Director of Public Prosecutions forming view that conviction for breaching offences unlikely - Informal plea bargain with Director of Public Prosecutions - Husband pleading guilty to breaching offences - Suspended sentence restored - Whether unjust - "Exceptional circumstances" - Sentencing Act 1991 (No 49) s 31(5), 31(5A).

Criminal law - Sentencing - Concurrency - Offender on parole - Concurrent sentence not open in absence of exceptional circumstances - Cancellation of parole - Sentencing judge ordering partial concurrent sentence - Express finding of no exceptional circumstances - Crown appeal - Aggravated burglary - Intentionally causing injury - Totality principle - Gravity of parole-breaching offences - Young offender's long history of violent offending - Sentence manifestly inadequate - Sentencing Act 1991 (No 49) s 16(3B).

Local government - Councillors - Information disclosure obligations - Reportable transactions - Register of councillors' interests - Annual return - Gifts to councillors - Obligation to disclose certain gifts - Specified amount or value - Municipal elections - Candidates - Disclosure obligations - Electoral campaign expenses - Donations - Supporter paying portion of councillor's re-election campaign expenses - Whether statute having retrospective effect - "Gift" - Local Government Act 1989 (No 11) s 81(7)(e).

Accident compensation - Workers compensation - Leave to bring common law proceedings - Serious injury - County Court - Leave refused - Reasons - Adequacy - Impression and value judgment - Status of County Court hearing serious injury applications - Not specialist tribunal for purpose of such applications - "Decide for itself" - Accident Compensation Act 1985 (No 10191) ss 134AB(16), 134AB(37), 134AC, 134AD - County Court Act 1958 (No 6230) s 74.

Courts and judges - Appeals - Court of Appeal - Appeal from County Court - Accident compensation - Workers compensation - Serious injury - Appeal from refusal of leave to bring common law proceedings - Nature of appeal - Conventional rehearing - Onus of persuasion - Court of Appeal directed to decide for itself - Record not equipping Court of Appeal to do so - Proceeding remitted to County Court - Accident Compensation Act 1985 (No 10191) ss 134AB(16), 134AB(37), 134AC, 134AD, 134AE

Contract - Interpretation - Dispute resolution clauses - Arbitration - Companies - Shareholders agreement - Closely held joint venture company - Sale of shares - Valuation - Agreement providing for shares to be offered to other shareholders at "fair value" - Not necessarily same as market value - Expert determination - Dispute arising from determination - Whether dispute arbitrable - Whether dispute was one between shareholders - Whether dispute was substantial.

Criminal law - Summary offences - Public order offences - Using insulting words in public place - Behaving in insulting manner in public place - Elements of offences - Intoxicated person shouting expletives at police from outside hotel and outside dwelling - Whether necessary to prove words or behaviour intended, or reasonably likely, to provoke unlawful physical retaliation - Criterion of liability - Contemporary standards of good order - "Insulting words" - "Insulting manner" - Summary Offences Act 1966 (No 7405) s 17(1).