Judgments

CORPORATIONS – Company limited by guarantee – Professional association – Complaint against member by parent of patient – Whether complaint was investigated according to proper procedure – Exercise of powers under the defendant’s constitution – Whether plaintiff was afforded procedural fairness – Whether undertakings were oppressive, unfairly prejudicial or unfairly discriminatory – Corporations Act 2001 (Cth) ss 140, 232.

ADMINISTRATIVE LAW – Judicial review – Police officer dismissed from Victoria Police after a finding that a charge of disgraceful conduct was proven – Inquiry officer who found the charge proven amended the charge – Inquiry officer had no power to amend charge – Police Registration and Services Board affirmed the decision to dismiss the police officer – Error of law on face of record – Decision to dismiss police officer unjust because inquiry officer failed to comply with a statutory precondition for the valid exercise of power of dismissal – Police Registration and Services Board decision quashed – Application for review of dismissal decision remitted for hearing by differently constituted Board.

CRIMINAL LAW – Appeal – Conviction – Incest and associated offences involving stepson – Judge met privately with child complainant – No objections to meeting from counsel – No record of meeting – Whether substantial miscarriage of justice because of private meeting – Principle of open justice requires court proceedings to be open to scrutiny – Apprehension of partiality – Meeting occasioned substantial miscarriage of justice – Appeal allowed – New trial ordered.

CRIMINAL LAW – Interlocutory appeal – Applicant charged with intentionally causing injury, recklessly causing injury and common assault – Alleged offending spanned multiple complainants and incidents – Prosecution sought to adduce tendency evidence – Judge reformulated tendency alleged – Whether circumstances of reformulated tendency resulted in procedural unfairness to the applicant – Leave to appeal granted – Appeal allowed.

CRIMINAL LAW – Appeal – Conviction – Indecent act with child under 16 – Whether substantial miscarriage of justice occurred by admission of irrelevant evidence – Whether unfairly prejudicial – Whether cross-examination of applicant and prosecutor’s closing address reversed onus of proof – Whether verdicts inconsistent or unreasonable – Whether victim impact statement contained fresh evidence resulting in substantial miscarriage of justice – Whether prosecutor’s submissions on complainant’s distress at time of complaint resulted in substantial miscarriage of justice – Application for leave to appeal granted – Appeal allowed – Convictions set aside and new trial ordered.

ADMINISTRATIVE LAW – Appeal on question of law – Statutory notices – Statutory purpose – Anti-corruption investigation – Breach of confidentiality notices – Whether notices complied with statutory requirement – Whether notices valid – Notices invalid – Leave to appeal granted – Appeal allowed – Criminal Procedure Act 2009 s 272, Independent Broad-based Anti-corruption Act 2011 ss 3, 42.

CRIMINAL LAW – Contravention of family violence intervention order contrary to s 123(2) of the Family Violence Protection Act 2008 – Whether offence is one of strict liability – Defence of honest and reasonable mistake of fact – Charges dismissed.

COSTS – Indemnity costs ordered against applicants – Open to judge to find applicants’ failure to accept respondent’s Calderbank offer unreasonable – Applicants’ own offers irrelevant – Respondent entitled to pursue specific performance – Trial primarily concerned issues raised by applicants’ defence and counterclaim – No contravention by respondent of Civil Procedure Act 2010 – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Application for leave to introduce further proposed ground of appeal relating to award of damages not argued below – No proper explanation for delay – No evidential basis for proposed further ground – Application refused.

Orders:

1 Under section 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Tribunal directs that no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file.
2 The decision of the respondent dated 30 September 2020 is set aside.
3 The Tribunal directs the respondent to give a Working with Children clearance to the applicant.

INSTITUTIONAL LIABILITY — Evidence — Allegations of historical sexual abuse of a child — Allegations denied — Alleged perpetrator to be called as a witness by defendant — Plaintiff intends to report allegations to the police but has not yet done so — Privilege against self-incrimination — Whether in the interests of justice to require witness to give evidence — Relevant considerations — Evidence Act 2008 (Vic), s 128(4)(b), (5) — Lucciano v The Queen [2021] VSCA 12 — R v Lodhi (2006) 199 FLR 328 — X7 v Australian Crime Commission (2013) 248 CLR 92.

ADMINISTRATIVE LAW – Judicial review – Police officer dismissed from Victoria Police after finding of ‘disgraceful conduct’ – Day spa therapist complained police officer had exposed himself during waxing treatment while off duty – Police Registration and Services Board set aside dismissal decision, finding charge not proven – Board investigated ‘inadvertent exposure hypothesis’ not advanced by police officer –Chief Commissioner of Police sought judicial review of Board’s decision alleging jurisdictional error – Primary judge dismissed application for judicial review – Whether primary judge erred in concluding Board’s decision not unreasonable or seriously illogical or irrational – Whether primary judge erred in concluding Board’s decision did not deny Chief Commissioner procedural fairness – Application for leave to appeal allowed – Appeal dismissed – Victoria Police Act 2013 ss 125, 146, 152.

CRIMINAL LAW– Appeal – Sentence – Crown appeal – Recklessly cause serious injury, sexual penetration of stepchild – Plea of guilty – Sentenced to 4 years’ imprisonment with non-parole period of 1 year – Whether sentence manifestly inadequate – Whether proportionate to objective gravity – Extremely serious offending – Victim aged 5 – Respondent was carer – Life-threatening injuries – Grave breach of trust – Powerful mitigating factors – Background of disadvantage, violence, sexual abuse – Moral culpability substantially reduced, general deterrence substantially moderated – Discretion of mercy exercised – Exceptional circumstances – More severe sentence not required – Appeal dismissed – Bugmy v The Queen (2013) 249 CLR 571, Munda v The Queen (2013) 249 CLR 600, DPP v Miceli  [1997] VSC 22;   (1997) 94 A Crim R 327 applied.

CRIMINAL LAW– Appeal – Conviction – Recklessly causing injury – Miscarriage of justice – Failure to disclose relevant information – Fresh evidence available since conviction – Prior inconsistent account – Appeal allowed – Whether new trial ordered or judgment of acquittal entered – Criminal Procedure Act 2009 s 277 – Difficulties associated with retrial – Admissibility of evidence of prior acquittals – Judgment of acquittal entered

JUDICIAL REVIEW– Validity of a charge – Whether failure to provide adequate particulars in a charge – Charge of accessing ‘police information’ without reasonable excuse – Order 56 – Certiorari to quash decision of Magistrate dismissing application to invalidate charge – Declaration sought that charge is invalid – Invalidity established – Criminal Procedure Act 2009  (Vic) Sch 1, Cc 1-3 – Victoria Police Act 2013  (Vic) s 227(1) – Baiada Poultry Pty Ltd v Victorian WorkCover Authority  [2015] VSCA 344; John L Pty Ltd v Attorney-General (NSW)  [1987] HCA 42;   (1987) 163 CLR 508 considered – Southgate Management Ltd v Nitschke  [2018] VSC 236 discussed.

FAMILY VIOLENCE INTERVENTION ORDER– Appeal – costs – whether exceptional circumstances exist – meaning of exceptional circumstances – Family Violence Protection Act 2008 – Stevens v Baxter  [2009] VSC 257; Quinlivan v Spectrum Imaging Pty Ltd  [2015] FWC 4750; Douglas v Dole & Ors  [2019] NTSC 80

CRIMINAL LAW — Appeal — Sentence — Attempt to procure child for act of sexual penetration (Charge 1) — Misconduct in public office (Charge 2) — Crimes Act 1958 s 58(3) and 321M — Guilty plea — Sentenced to 10 months’ imprisonment and Community Correction Order — Sentencing judge erred as to the maximum sentence applicable on Charge 1 — Appeal allowed in part — Applicant resentenced to 190 days imprisonment.