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Supreme Court of Victoria - Court of Appeal |
Last Updated: 11 May 2021
SUPREME
COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0076
Applicant
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v
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First Respondent
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and
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THE COUNTY COURT OF VICTORIA
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Second Respondent
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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[2020] VSC 305 (Daly AsJ)
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CRIMINAL LAW – Motor vehicle offences – Failure of probationary driver to display P Plate on front of vehicle – Charge – Whether charge contained necessary particulars ‑– Whether ‘driving a motor vehicle other than a motor cycle’ is essential element of offence – Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 applied, Shillinglaw v Roberts [1891] VicLawRp 30; (1891) 17 VLR 136, De La Rue v Matthews [1945] VicLawRp 28; [1945] VLR 275 distinguished – Road Safety (Drivers) Regulations 2009 reg 55, Criminal Procedure Act 2009 sch 1 cl 4 – Appeal dismissed.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr C Boyce QC
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Ms A Hogan, Solicitor for Public Prosecutions
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For the First Respondent
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Mr P J Billings
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Patten Robins Lawyers
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For the Second Respondent
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No appearance
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1 The applicant, a member of Victoria
Police represented by the Solicitor for Public Prosecutions, seeks leave to
appeal against a
decision of an associate judge dismissing a charge against the
first respondent, a probationary driver, for not displaying a P plate
from
the front of the vehicle he was
driving.[1]
2 The
sole question raised by this application is whether the phrase ‘other than
a motor cycle’ in reg 55(1)(b) of the
Road Safety (Drivers)
Regulations 2009 (‘the Regulations’) is an element of the
offence created by that provision, or whether it is an
‘exception’.
3 For the reasons that
follow, we agree with the associate judge’s conclusion that the fact that
the motor vehicle driven by
the first respondent was not a motor cycle was an
element which needed to be included in the charge laid against him under
reg 55(1)(b).
The result is that, although leave will be granted, the
appeal will be dismissed.
Statutory provisions
4 Regulation 55 relevantly provided as follows:
55 Probationary driver must display P plates
(1) A person who holds a probationary driver licence ... must not drive a motor vehicle (other than a tractor) on a highway unless –
(a) an appropriate P plate is displayed facing out from the rear of the vehicle so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres behind the vehicle; and
(b) in the case of a vehicle other than a motor cycle, an appropriate P plate is displayed facing out from the front of the vehicle so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres ahead of the vehicle.
Penalty: 3 penalty units
...
(3) Subregulation (1) does not apply to a person who is—
(a) a member of the police force who, in the course of duty, is driving a motor vehicle; or
(b) a member of the Country Fire Authority who is driving a motor vehicle in the course of fire fighting operations; or
(c) driving an ambulance service or a Victoria State Emergency Service vehicle in the course of duty.
5 Regulation 55(4) sets out the
definition of an ‘appropriate P plate’, which generally means a
plate measuring approximately
150 millimetres by 150 millimetres with different
coloured backgrounds, depending on whether someone holds a ‘P1’ or
‘P2’ probationary driver licence.
6
Section 6(3)(c) of the Criminal Procedure Act 2009 (‘the
CPA’) provides that a charge sheet must comply with sch 1 to that
Act. Relevantly, cl 1 of sch 1 requires a charge
to state the offence
that the accused is alleged to have committed, and contain particulars that are
necessary to give reasonable
information as to the nature of the charge.
Clause 4 provides that any exception, exemption, proviso, excuse or
qualification need
not be specified or negatived in a charge.
Facts and procedural history
7 On 14 August 2015, there was a multiple
vehicle collision in Noble Park. A police officer attended and called for tow
trucks to
attend the scene.
8 The first respondent,
who was employed as a tow truck driver, attended some time later. The first
respondent was, at that time,
the holder of a probationary driver’s
licence and, when he attended, he did not have a P plate displayed facing
out from the
front of the tow truck that he was driving. The first respondent
did have a P plate displayed on the rear of his tow
truck.
9 The informant, Steven Kokas (the applicant
in this proceeding), laid a charge against the first respondent which (as
amended on
5 April 2016) read as follows:
The accused at Noble Park on 14/08/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway namely Corrigan Road without having a ‘P’ plate conspicuously displayed out from the front of such vehicle.
10 The charge sheet also specified
reg 55(1)(b) of the Regulations in respect of the entry ‘Under what
law?’
11 On 31 May 2016, following a contested
hearing in the Magistrates’ Court at Dandenong, the first respondent was
convicted
of the offence and ordered to pay a fine of $152.00, as well as
statutory costs of $73.30.
12 The first respondent
appealed and, on 29 September 2016, a County Court judge allowed the appeal, set
aside the orders of the Magistrates’
Court, and dismissed the charge. In
so doing, his Honour accepted the first respondent’s contention that he
had an honest
and reasonable belief that a P plate was facing out from the
front of his vehicle. His Honour did not, at that time, determine an
additional
submission that the charge was defective because it failed to stipulate that the
motor vehicle being driven by the first
respondent was a vehicle ‘other
than a motor cycle’.
13 On 12 September 2017,
a judge of the Supreme Court allowed an appeal by the
applicant.[2] Her Honour quashed the
orders made by the County Court on 29 September 2016, declared that an
honest and reasonable mistake of fact
was not relevant to proof of an offence
against reg 55(1) of the Regulations, and remitted the proceeding to the
County Court for
rehearing.
14 On 12 June 2018, this
Court refused the first respondent’s application for leave to appeal the
judge’s
decision.[3]
15 On
25 September 2018, the proceeding returned to the County Court and counsel
for the first respondent again submitted that the
charge was a nullity.
However, the judge rejected this submission and held that the charge did not
need to state that the first
respondent had been driving a motor vehicle
‘other than a motor cycle’ as it was not an element of the offence,
but an
exception to it. His Honour convicted and discharged the first
respondent.
16 An originating motion for judicial
review was filed in the Supreme Court and, on 23 June 2020, the associate
judge held that a
charge under reg 55(1)(b) of the Regulations must
state that the motor vehicle driven was a motor vehicle ‘other than a
motor cycle’, as this was an essential element
of the
offence.
17 On 25 June 2020, her Honour made
orders which quashed the orders made in the County Court on 25 September
2018, allowed the first
respondent’s appeal, and dismissed the charge.
Application for leave
18 The application for leave to appeal described the proposed ground(s) of appeal as follows:
The learned judge erred in holding (a) that an essential element of the offence that the respondent faced (namely, the offence described in reg 55(1)(b) of the [Regulations]) was that that [sic] the motor vehicle that the respondent was driving was not a motor cycle, (b) that it was necessary that the charge alleged against the respondent specify that the motor vehicle he drove was a motor vehicle other than a motor cycle, (c) that because the charge did not so specify this matter it was invalid, (d) that the decision of the judge to uphold the decision of the Magistrates’ Court to convict the respondent should be quashed, and (e) that the charge should be dismissed.
19 However, as identified already, the sole issue was whether the phrase ‘other than a motor cycle’ was an element of the relevant offence, or, alternatively, whether it was an ‘exception’ to that offence. If it was an exception, it did not need to be particularised in the charge by reason of cl 4 of sch 1 to the CPA.
Reasons of the associate judge
20 After setting out the background,
relevant legislation, and submissions, the associate judge observed that the
determination of
the issue in the proceeding involved the orthodox application
of the principles of statutory
construction.[4]
21
Her Honour considered that a linguistic analysis of the relevant provision was
appropriate in circumstances where other more ‘modern
approaches’
did not
assist.[5]
22 The
critical part of the Reasons then read:
23 Her Honour concluded that a charge
brought under reg 55(1)(b) must specify that the motor vehicle concerned
was a motor vehicle
other than a tractor and a motor vehicle other than a motor
cycle.[7]
24 Her
Honour added that the inclusion of the phrase ‘other than a motor
cycle’ in reg 55(1)(b), rather than in reg 55(3),
was relevant
to the statutory interpretation
issue.[8] She also cited the majority
in the High Court decision of Chugg v Pacific Dunlop
Ltd[9] (discussed below),
and found that the phrase ‘other than a motor cycle’
accompanied the offence created by reg 55(1)(b), and was also not a matter
which was particularly within the knowledge of the first
respondent.[10]
25 The
associate judge thereby held that the charge was invalid, and that the decision
of the County Court (to uphold the decision
of the Magistrates’ Court to
convict the first respondent) should be quashed.
Submissions
26 The applicant placed reliance on the
principles outlined by Dixon CJ in Dowling v
Bowie,[11] which were repeated
in Vines v
Djordjevitch[12] and,
more recently, in Chugg. In particular, he relied on a passage from
Dowling where Dixon CJ distinguished a case where ‘the
definition of the grounds of liability contains within itself the statement
of
the exception or qualification’, from a case where an exception
‘assumes the existence of the facts upon which the
general rule is based
and depends on additional facts of a special
kind’.[13]
27 The
applicant also placed reliance on the allegedly similar cases of Shillinglaw
v Roberts[14] and De La Rue v
Matthews,[15] as well as certain
dicta remarks made by Fullagar J in Barritt v
Baker.[16]
28 In
oral submissions Senior Counsel for the applicant accepted that
regs 55(1)(a) and 55(1)(b) might be described as giving rise
to two
offences. However, he contended that, regardless of whether there were two
offences, or one offence committed in two different
ways, reg 55(1) should
be read as requiring that all ‘motor vehicles’ (which included motor
cycles)[17] driven on highways bear
P plates visible from both the vehicle’s rear and front.
29 The reference in reg 55(1)(b) to
‘other than a motor cycle’ was said to constitute a
‘qualification or exception’
to this ‘general principle of
liability’, which ‘assumes the existence of the facts upon which the
general rule
is based’ (the driving of a motor vehicle) but ‘depends
on additional facts of a special kind’ (that the ‘motor
vehicle’ is of a specific kind, namely, a ‘motor
cycle’).
30 Support for this construction was
said to be found in the policy or purpose of the provision, namely, one of
general or presumed
compliance (unless a party can raise a relevant exception)
so as to further the important goal of public safety when it comes to
probationary drivers.
31 In written submissions the
applicant conceded that the parenthesized words ‘(other than
tractors)’ have ‘perhaps
more of a definitional flavour by virtue of
their positioning in the regulation itself and the relatively uncommon subject
matter
to which they refer when related to highways’. However, in oral
submissions, Senior Counsel’s position was that it was
unnecessary for the
words ‘other than a tractor’ to be expressed in the charge. Rather,
the elements of the offence
were said to be: (1) there was a person who
holds a probationary driver licence; (2) who drives a motor vehicle;
(3) in the absence
of the appropriate P Plate displayed on the front
or back.
32 The applicant criticised the reasoning
of the associate judge. In particular, he criticised the suggestion that if a
motor cycle
rider was charged with failing to display a P plate at the
front of the vehicle, the fact that the person charged was riding a motor
cycle
would not amount to an exception since ‘no such offence existed’.
He submitted that the gravamen of this reasoning
accepted that only a certain
class of people was made subject to the reg 55(1)(b) offence ie persons
other than motor cycle riders.
This was said to be similar to an argument which
was rejected in De La Rue. It was further submitted that to reason in
this manner was to beg the question since, although no offence would be
committed if a
motor cycle rider was charged under reg 55(1)(b), the real
issue was whether the requirements for the charge had been satisfied,
rather
than guilt or innocence.
33 The first respondent
largely adopted the analysis of the associate judge. The first respondent also
submitted that the decisions
of Shillinglaw and De La Rue were
simply examples, and that none of the cases cited by the applicant referred to a
provision which created two separate offences,
as in this case.
Authorities
34 In the decision of the High Court in
Chugg, the Court was concerned with a prosecution under s 21(1) of
the Occupational Health and Safety Act 1985 which provided that an
employer was to provide and maintain a working environment that is safe and
without risk to health ‘so
far as is
practicable’.[18]
35 The
Court determined that the onus of proof on the question of
‘practicability’ lay on the
informant.
36 The High Court considered both
Dowling and Vines. More particularly, the majority (Dawson,
Toohey and Gaudron JJ) found that a distinction is made between a
requirement which ‘forms
part of the statement of a general rule’,
and a statement of exception which serves to take a person ‘outside the
operation
of a general
rule’.[19]
37 The
majority further stated:
The distinction does not depend on the rules of formal logic. Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction. Where some matter is said to be an exception to an offence, the question is whether there is to be discerned a legislative intention ‘to impose upon the accused the ultimate burden of bringing himself within it’. The intention may be discerned from express words or by implication.[20]
38 The majority considered that, despite the language of provisions similar to cl 4 of sch 1 to the CPA, if a matter ‘accompanies the description of an offence’ it will ordinarily be construed as an element of the offence,[21] and also stated:
One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule. Such is ordinarily the case where ... there is a prohibition on the doing of an act ‘save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities’. ... If the new matter is a matter peculiarly within the knowledge of the defendant, then that may provide a strong indication that it is a matter of exception upon which the defendant bears the onus of proof.[22]
39 The issue was to be decided upon
considerations of substance rather than
form,[23] and with regard to the
object/policy of the
legislation.[24] Ultimately,
practical matters were both relevant and decisive in Chugg, given that
placement of the onus on the defendant would have entailed the additional burden
of anticipating arguments as to the
‘practicability’ of every
possible means of mitigating an
accident.[25]
40 The
decision in Chugg identifies the relevant principles in this case. Given
that a process of statutory construction is called for, previous decisions
are
of limited utility. However, we will briefly examine the two cases of
Shillinglaw and De La Rue, as well as Barritt, given the
emphasis placed on those cases by the
applicant.
41 In Shillinglaw the defendant
was charged with selling poison contrary to the provisions of the Poisons
Act 1890. The relevant provision stated that ‘every person
other than a legally qualified medical practitioner, or a registered
pharmaceutical
chemist, who shall sell any poison’ was liable to a penalty
unless he held a relevant certificate which showed that he was
a fit and proper
person.
42 The Court found that, consistent with the
policy of the legislature (as appeared from the preamble), the statute created a
general
prohibition against the retailing of poisons, but with exception made in
respect of certain persons. The onus therefore lay on the
accused person to
show that he belonged to the class of persons authorised to sell poison by the
legislation.
43 The legislation in De La Rue
prohibited a person ‘other than a manufacturer or distributor’ from
acquiring a tyre, except in limited circumstances.
O’Bryan J noted
the submission that only a certain class of persons was made subject to the
prohibition. However, he considered
that the ‘essence of the
offence’ was the acquisition of tyres unless certain circumstances were
present.[26] The onus was thereby
on the defendant to establish that he came within the exception (being a
manufacturer or distributor).
44 These two cases
highlight a distinction between the essence of the liability or obligation in
each case (being to ‘sell poison’
or ‘acquire tyres’) as
opposed to the person on whom that liability is imposed (eg ‘a person
other than a medical
practitioner’ or ‘a person other than a
manufacturer’). They are also readily characterised as cases concerned
with a general prohibition, save by persons of a ‘specified class’,
consistent with the passage in Chugg, cited
above.[27]
45 The
statute considered by the Court in Barritt prohibited ‘betting in a
street’, where ‘street’ was defined as ‘not including
race-courses’.
The Court held that the place was an essential element in
the specification of the offence. In such circumstances, the burden of
proving
that the enclosure was not a race-course rested on the
informant.
46 However, the applicant placed
particular reliance on certain dicta remarks made by Fullagar J as
follows:
[The Legislature] might, for example, provide that any person who made a bet in a city, town or borough should be guilty of an offence. Or it might provide that any person who made a bet in any municipality other than a shire should be guilty of an offence. The substance might be precisely the same, but it might well be held that s 214 applied to the latter case but not to the former. This would be because the essential elements in the specification of the offence are differently stated in each case.[28]
47 The fact that the way in which the essential elements are stated ‘might well’ change the necessary categorisation of the matter is unexceptional. The comments should not be understood as a general statement that any provision which contains the words ‘other than’ necessarily involves an exception. Rather, as the subsequent decisions of the High Court make clear, the question is to be determined as a matter of ‘substance’ based on the particular legislation under consideration.
Analysis
48 The principles relevant to statutory
construction require consideration by the Court of the ordinary and grammatical
meaning of
the words used, taking into account both context and legislative
purpose.[29]
49 In
this case the subject matter of reg 55(1) is the obligation to display
P plates while driving, ie the ‘essence’
of the offence is
concerned with an obligation to display P plates. However, the circumstances
which give rise to the offence are
not defined in the opening words themselves
(which do not even mention ‘P plates’). Rather, while
reg 55(1)(a) defines
when an obligation arises to display a P plate
from the rear of the vehicle, reg 55(1)(b) defines when such an obligation
arises
in relation to the front of the vehicle. In the latter case, the
obligation to display a P plate only arises in the case of a motor
vehicle
(other than a tractor) which is not a motor
cycle.
50 The structure of the provision therefore
suggests that there are two separate offences. More importantly, the phrase
‘other
than a motor cycle’ is definitional of when an obligation
will arise to display a P plate facing out from the
front.
51 We do not accept the applicant’s
submission that the definition of the vehicle should be read as being equivalent
to a statement
of the person on whom the obligation is imposed (ie persons
‘other than motor cycle riders’). Rather, on a natural reading,
reg 55 draws a distinction between the obligation and the person on whom
that obligation is imposed. The obligation or ‘general
rule’ is
that P plates must be displayed from the front of certain specified
vehicles. However, this should be compared with
the ‘person’ on
whom the obligation is imposed, namely, a ‘person who holds a probationary
driver licence’,
subject to the exceptions applying to persons identified
in reg 55(3).
52 Given this construction, the
cases of Shillinglaw and De La Rue do not assist the applicant,
as, for reasons given already, they dealt with an alleged failure to
identify/prove matters relating
to the person on whom the obligation was
imposed, rather than matters definitional of the obligation
itself.
53 The applicant’s concession that the
‘vehicle’ is an essential element of the offence is also consistent
with
our construction. Given that it is necessary to include reference to the
vehicle, it will be necessary to define that vehicle in
circumstances where the
obligation will only arise in respect of certain defined
vehicles.
54 A number of other principles in
Chugg further fortify our construction as
follows.
55 First, the reference to a vehicle other
than a motor cycle ‘accompanies the description of the offence’ such
that it
ought to be construed as an element of that
offence.
56 Secondly, the applicant’s
construction involves a formalistic approach by placing unnecessary emphasis on
the phrase ‘other
than’, instead of focusing on the substance of the
matter. Thus, the phrase ‘other than’ in this context is not
used
to identify an exception to an obligation. Rather, it serves to conveniently
define the class of vehicles made subject to the
relevant obligation (ie all
motor vehicles other than a motor cycle). The substance would be the same if
the legislature had chosen
to list all motor vehicles other than motor cycles.
The use of ‘other than’ therefore simply provides a more convenient
way of defining the obligation.
57 Thirdly, the
description of the vehicle is not a matter which is ‘peculiarly within the
knowledge of the defendant’
such that the defendant should carry the onus.
Rather, the type of vehicle can be readily identified by an
informant.
58 Finally, it may be accepted that the
ability to identify young inexperienced drivers is an important part of the road
safety regime
erected by the Road Safety Act 1986 and the
Regulations.[30] However, as is
evident from the precise specifications applicable to an ‘appropriate
P plate’ (which is distinguishable
(by colour) at a distance of 20
metres), the Regulations are highly prescriptive of the circumstances in which
any identification
is to occur. It is consistent with this prescriptive regime
that an obligation to display P plates from the front should only arise
in
respect of certain defined vehicles.
59 For all the
above reasons, the phrase ‘other than a motor cycle’ is an element
of the offence created by reg 55(1)(b).
It therefore needed to be stated
in the charge laid against the first respondent. Given this did not occur, the
associate judge
was correct in quashing the order made in the County Court and
dismissing the
charge.
Conclusion
60 There
will be leave to appeal, but the appeal will be
dismissed.
---
[1] Stanojlovic v Kokas [2020] VSC 305 (‘Reasons’).
[2] DPP v Stanojlovic (2017) 53 VR 90; [2017] VSC 540.
[3] Stanojlovic v DPP [2018] VSCA 152.
[4] Reasons [42].
[5] Ibid [43]. Her Honour considered that there was no ambiguity in the language used, no ‘absurdity’, nor any significant role for analysis of the purpose of the Regulations, or any extrinsic materials.
[6] Emphasis in original.
[7] Reasons [52].
[8] Ibid [53].
[9] (1990) 170 CLR 249; [1990] HCA 41 (‘Chugg’).
[10] Reasons [55].
[11] (1952) 86 CLR 136; [1952] HCA 63 (‘Dowling’).
[12] (1955) 91 CLR 512; [1955] HCA 19 (‘Vines’).
[13] Dowling [1952] HCA 63; (1952) 86 CLR 136, 139–40; [1952] HCA 63.
[14] [1891] VicLawRp 30; (1891) 17 VLR 136 (‘Shillinglaw’).
[15] [1945] VicLawRp 28; [1945] VLR 275 (‘De La Rue’).
[16] [1948] VicLawRp 53; [1948] VLR 491 (‘Barritt’).
[17] Road Safety Act 1986 s 3(1) (definition of ‘motor vehicle’).
[18] Section 21(2) further provided that, without in any way limiting the generality of sub-s (1), an employer contravened that sub-section if the employer failed to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health.
[19] Chugg [1990] HCA 41; (1990) 170 CLR 249, 257; [1990] HCA 41. See also Dowling [1952] HCA 63; (1952) 86 CLR 136, 139–40; [1952] HCA 63; Vines [1955] HCA 19; (1955) 91 CLR 512, 519; [1955] HCA 19.
[20] Chugg [1990] HCA 41; (1990) 170 CLR 249, 257 (citations omitted); [1990] HCA 41.
[21] Ibid 258.
[22] Ibid 258–9 (citations omitted).
[23] Ibid 258, citing Dowling [1952] HCA 63; (1952) 86 CLR 136, 140; [1952] HCA 63.
[24] Chugg [1990] HCA 41; (1990) 170 CLR 249, 261–2; [1990] HCA 41.
[25] Ibid 262–3.
[26] De La Rue [1945] VicLawRp 28; [1945] VLR 275, 278–9.
[28] Barritt [1948] VicLawRp 53; [1948] VLR 491, 495.
[29] Victoria v Thompson [2019] VSCA 237; (2019) 58 VR 583, 589 [27]–[28]; [2019] VSCA 237, citing R v A2 [2019] HCA 35, [33]–[34].
[30] See Stanojlovic v DPP [2018] VSCA 152, [50].
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URL: http://www.austlii.edu.au/au/cases/vic/VSCA/2021/119.html