More from: new cases

Habeas corpus

follow Here is the decision of McMillan J in the matter of Stewart v Magistrates’ Court of Victoria [2017] VSC 110 (15 March 2017). Members should acquaint themselves with the operation of the after hours bail court and the challenges it presents.

Tendency & coincidence in High Court

The High Court today delivered judgment in IMM v The Queen [2016] HCA 14 – an appeal from the NT Supreme Court. In it, the Court held that when determining the “probative value” of evidence under the Evidence Act, a trial judge must proceed on the assumption that the jury will accept the evidence, and as such it follows that no question as to credibility or reliability of the evidence can arise.

However the Court also held, by majority, that evidence from a complainant adduced to show an accused’s sexual interest can generally have limited, if any, probative value.

Victorian Reports

The Council of Law Reporting in Victoria is pleased to be partnering with BarNet, the producers of JADE, and Little William Bourke to provide the widest dissemination of the Reports at the lowest cost through a dedicated website.

The website provides a full statement advising of a new publishing arrangement and the appointment of a new editor for the Reports. The Council is also delighted with the appointment of Peter Willis SC as the new Editor.

Baseline sentencing ‘unworkable’: C of A

In DPP v Walters (a pseudonym) [2015] VSCA 303, the Court of Appeal held the baseline sentencing provisions to be unworkable. The appeal was brought by the DPP against a sentence said to be manifestly inadequate due to a failure to apply the baseline provisions. Whilst acknowledging the purpose of the legislation to effect a certain statistical outcome in sentences over time, the Court held that, in the individual sentencing task, “Parliament’s stated intention cannot be given effect to because the provisions contain no mechanism for its implementation and it is beyond the function of the Court to devise one.”

Members should note that the Court only had before it a Crown appeal against sentence. Stay tuned for what practical effect this decision may have in other cases.

Sentencing Manual extensively updated

Judicial College –  Sentencing Manual extensively updated to reflect recent Court of Appeal cases

Topics updated include:

  •  Victim impact statements
  •  Offences involving family violence
  •  Revelation of offences not known to police – Doran discount
  •  Child pornography offences
  •  Drug trafficking and actual or potential harm

Find out more here.

Casenotes: Velkovsky (VSCA) and Honeysett (HCA)

The CBA is happy to share material written by members for others to read, particularly summaries of recent cases. Summaries of 2 recent cases are now included on our ‘Publications’ page. Thanks to Harry Venice for his work:

If you have written a paper or case note and would like to share them with members, please email them to Simon Moglia or Karen Argiropoulos.

DNA papers and recent High Court decision

The paper and powerpoint from last night’s CPD by Jane Taupin are available on the Publications page. Jane’s book, ‘Introduction to Forensic DNA Evidence for Criminal Justice Professionals’ (2013) is available on Amazon and at other online booksellers.

Also, note that the High Court last week decided Fitzgerald v The Queen [2014] HCA 28 on the question of whether the presence of DNA alone could satisfy a jury beyond reasonable doubt that the accused was present during an offence. The conviction was quashed.

Tendency and co-incidence evidence

Members should be aware of the recent Court of Appeal decision of Velkoski v The Queen [2014] VSCA 121 which has application to cases involving tendency and co-incidence evidence.

The Judicial College of Victoria has made changes to the following directions in the Criminal Charge Book due to the Court of Appeal decision:

4.16.2 – Charge: Tendency Evidence (General Charge)
4.16.3 – Charge: Tendency Evidence (Sexual Interest Evidence)
4.16.4 – Charge: Tendency Evidence (Multiple sexual complaints)
4.16.6 – Charge: Coincidence Evidence


Update – JCV Criminal Procedure Manual

The Victorian Criminal Proceedings Manual on the JCV website has been updated to incorporate recent cases.

  • – ‘Between Dates’ particulars
  • 4.4.5 – Determination of committal proceedings
  • 11.5.1 – Change of plea during trial
  • 18.5.2 – Correction of errors in the record

Also, Recent case summaries in the Victorian Sentencing Manual have been updated. The summaries provide guidance on current sentencing practices.

Bail and human rights – new decision

Bell J, in his customary comprehensive style has given a significant judgment about the threshold questions for bail and how they relate to the various human rights reflected by the Charter. In particular, he discusses the relationship between unacceptable risk and show cause. Congratulations to members involved.

Woods v DPP [2014] VSC 1 (17 Jan 14)

CRIMINAL LAW – bail – human rights – fundamental common law rights and liberties – whether applicants represent unacceptable risk – whether applicants showed cause why detention not justified – imposition of conditions compatibly with human rights of applicants – onus of proof with respect to unacceptable risk in show-cause situations – bail of child-accused – ‘presumption of innocence’, ‘liberty’, ‘freedom of movement’ – ‘unacceptable risk’, ‘exceptional circumstances’, ‘show cause’ – Bail Amendment Act 2010 (Vic) – Bail Amendment Act 2013 (Vic) – Bail Act 1977 (Vic) ss 45Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 1221 and 25.