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ABORTION
Crimes Act s.65. Abortion prosecutions have become rare in Victoria and the meaning of the abortion laws has become uncertain. R v Davidson [1969] VR 667 (Menhennitt J.) was thought to provide some guidance for s.65 but is merely a trial ruling and now quite old:
... to establish that the use of an instrument with intent to procure a miscarriage was unlawful, the Crown must establish (a) that the accused did not honestly believe on reasonable grounds that the act done by him was necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or (b) that the accused did not honestly believe on reasonable grounds that the act done by him was in the circumstances proportionate to the need to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and child birth) which the continuance of the pregnancy would entail.
See further N. Cica Abortion Law in Australia (1998).

ALIBI DEFENCE
Crimes Act s.399A, s.399B; R v Merrett [2007] VSCA 1, (2007) 14 VR 39; R v Chan [1998] VICSC 250.

ALTERNATIVE VERDICTS
General Crimes Act 421(2); attempt s.421(3); assist accused s.325(2); sexual offences s.425, AJS v R [2007] HCA 27.
R v Christy [2007] VSCA 152; R v Kane [2001] VSCA 153, (2001) 3 VR 542; R v Ashman [1957] VLR 364; R v Burnside [1962] VR 96; R v Macready [1967] VR 325; R v Winner (1989) 39 A Crim R 180; R v Boyd (1989) 44 A Crim R 111.

AMENDMENT
Crimes Act s.372(1). R v Power [1960] VR 373; R v Ernst [1984] VR 593. Magistrates' Court Act s.50(a). Ayles v R [2008] HCA 6; Broome v Chenoweth (1946) 73 CLR 583. Kennett v Holt [1974] VR 644. No change amounting to fresh information outside a time limit for filing of information: Kerr v Hannon [1992] 1 VR 43 (date of offence essential where time limit on commencement of process); place not necessarily so: Gigante v Hicks [2001] VSCA 4. Possibility of amendment where charge does not disclose an offence known to law: Walpole v Bywool Pty Ltd [1963] VR 157.
At trial: Maher v R (1987) 163 CLR 221. Need for re-arraignment if the amendment changes the issue already raised: R v Hoser [1998] 2 VR 535.

ATTEMPT
Crimes Act ss.321M-321S. For federal offences, Criminal Code s.11.1.

BAIL
Bail Act
Pending trial & section 4 exceptional circumstances: YSA v DPP [2002] VSCA 149; DPP v Koumis [2006] VSC 416; Tran v DPP [2005] VSC 498; DPP v Cozzi [2005] VSC 195, (2005) 12 VR 211; DPP v Bernath [2003] VSC 304.
Pending trial & section 4 show cause: DPP v Peterson [2006] VSC 199; Asmar, Bail application [2005] VSC 487; Re Walker [2007] VSC 129.
Inherent power of Supreme Court to entertain an appeal against refusal of bail: R v Durose [1991] VR 176. Statutory power of Supreme Court to entertain an appeal by DPP against grant of bail: Bail Act s.18A.
ABSCONDING. After failure to appear (in County and Supreme Courts the practice is thrice calling by tipstaff), the Undertaking of Bail for appearance at trial is tendered. Any surety or sureties are then likewise called. Then usually order sought for forfeiture of undertaking of bail together with the amounts undertaken by any surety, in default distress, in default of distress, imprisonment. Forfeiture is mandatory: see Crown Proceedings Act s.6(1). Exception - illness, accident or other sufficient cause: Bail Act s.16(3). Forfeiture of the undertaking of a surety is mandatory upon forfeiture of the undertaking of bail: R v Baker [1971] VR 427. A surety might be able to pre-empt the matter by an application under the Bail Act s.23. A surety has a right to apply for an order varying or rescinding the forfeiture: Crown Proceedings Act s.6(4); ; DPP v Mokbel [2007] VSCA 195; Re Wilkinson [1983] 2 VR 250; Re Condon [1973] VR 427. Forfeiture by person bailed: Bail Act s.32. Court may issue warrant for arrest of accused: Bail Act s.26(2). Extension of bail for postponements and adjournments of hearing: Bail Act s.16; Crimes Act s.360. On application to Supreme Court, see Supreme Court of Victoria Practice Statement No 5 of 2004 (pdf at Sup Ct site).

CALLING OF PROSECUTION WITNESSES
Discretion of trial prosecutor. "A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence. In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined": R v Apostilides (1984) 154 CLR 563; see also R v Martin [2000] VSCA 163; R v Su [1997] 1 VR 1; R v Shaw (1991) 57 A Crim R 425. In general, the Crown would be expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown case and the names of such persons would, ordinarily, in conformity with Presentment Rule 4(1) be endorsed on the presentment: R v Armstrong [1998] VICSC 350, [1998] 4 VR 533. In Armstrong, the suggested eye witness was without statement, not on presentment and brought to attention of the prosecutor by defence counsel; it was held miscarriage of justice that there had been a point blank refusal of the prosecutor to have the witness interviewed or to consider notes proffered by defence counsel indicating the substance of the evidence which it was anticipated the witness would give, if called in the trial.
Prosecution calling of witnesses whose evidence is to be criticised by it generally is unobjectionable: R v Macfie (No 2) [2004] VSCA 209, (2004) 11 VR 215. Calling simply for cross-examination: Foley (1984) 13 A Crim R 29; R v Komornick [1986] VR 845. It has not been Crown practice to call accomplices who are unwilling to testify: Read Preparation of Criminal Trials in Victoria pp.31-33.

CAUSATION
Royall v R (1991) 172 CLR 378; R v Evans and Gardiner [1976] VR 523; R v Franklin [2001] VSCA 79, (2001) 3 VR 9. To be operating and substantial cause.

CHANGE OF PLEA
Once plea of guilty has been entered at County Court or Supreme Court arraignment, change to plea of not guilty requires permission of the Judge which may be granted at any time until sentence is passed, or in the event it has been made as part of a mixed plea before jury, until verdict. Whether to grant permission is a discretion: Maxwell v R (1995) 184 CLR 501; R v Douglass [2006] VSCA 37; R v Seyfarth [1998] VSCA 27; R v Webb (1992) 64 A Crim R 38. There is no presumption one way or the other; the test is whether not to allow change would be a miscarriage of justice: R v Middap (1989) 43 A Crim R 362. In "most cases a prisoner who desires to withdraw his plea of guilty should be allowed to do so": R v Broadbent [1964] VR 733. Use upon trial of former plea of guilty or indication of intention to plead guilty: R v Rustum [2005] VSCA 142; R v Hee [1998] VSCA 23; R v D'orta-Ekenaike [1997] VICSC 31, [1998] 2 VR 140. Directions must be given to jury if use permitted.
Change to guilty - direct verdict of guilty: R v Paprounas [1970] VR 865.

CHANGE OF VENUE
Crimes Act s.359; R v Vjestica [2008] VSCA 37; R v Iaria [2004] VSC 96 (Nettle J).

COMMENT PROHIBITED ON STANDING MUTE
Crimes Act s.399(3). The two necessary elements of the prohibited comment are "a reference to the fact that the accused could give evidence on oath and a reference to the fact he has not done so": Bataillard v R (1907) 4 CLR 1282; R v Barron [1975] VR 496. The elements are to be applied acknowledging that the jury knows of the right of an accused to give sworn evidence: Allen (1994) 77 A Crim R 99. A direction that a recorded interview is not on oath is not a breach of s.399(3): R v KJ [2005] VSCA 153. On a somewhat different NSW provision: RPS v R (2000) 199 CLR 620.

COMMITTALS, PRESENTMENT FOR TRIAL
Committals: Magistrates' Court Act Schedule 5; Magistrates' Court (Committals) Rules 1999; Summers v Cosgriff [1979] VR 564; Forsyth v Rodda (1988) 37 A Crim R 50; R v Allen (1989) 43 A Crim R 1; Shaw v Coco (1991) 54 A Crim R 128; Thorpe v Abbotto (1992) 59 A Crim R 208; Grassby v R (1989) 168 CLR 1. As to the limited respects in which decisions at committal proceedings are reviewable by the Supreme Court, see Potter v Tural [2000] VSCA 227.
Presentment for trial: For Victoria cases, except with grand jury (see below), the Director of Public Prosecutions or a Crown Prosecutor in name thereof solely possess the power to present for trial: Crimes Act s.353; Public Prosecutions Act s.36; R v Parker [1977] VR 22. Normally this follows a committal for trial by a Magistrate but the power to present is independent of this. There may be extreme circumstances where to make presentment without committal proceeding ("direct presentment") is abuse of process: Barton v R (1980) 147 CLR 75; Williams, Brincat & Traglia v DPP [2004] VSC 516 (Gillard J.). Where there has been a committal on Victoria law and a defendant has been discharged on a charge, to make presentment for trial on a count that is not materially different from that offence requires special decision under Public Prosecutions Act sections 3, 23, see further section 37. Crimes Act Schedule 6 has Presentment Rules. On DPP's limited power as to guidelines: Public Prosecutions Act s.26. Omission of certain details not fatal to presentment: Crimes Act s.375. Filing over: R v TSR [2002] VSCA 87. Broad discretion for extension of time for filing presentment: R v Jones, Court of Criminal Appeal, 5 Dec 1985. Where a defendant has been committed or presented, there is a prosecution power to discontinue the proceedings known as Nolle Prosequi: Public Prosecutions Act s.25; Gipp v R (1998) 194 CLR 106.
It is comparable though not identical with Commonwealth prosecutions: R v Holden [2001] VSCA 63; R v Nicola [1987] VR 1040.

There is in Victoria provision for grand jury as alternative: Crimes Act s.354. This is rare, though see Application by Shaw [2001] VSCA 175.

COMPLICITY
Crimes Act s.323, s.324. Clayton v R [2006] HCA 58; McAuliffe v R (1995) 183 CLR 108; Johns v R (1980) 143 CLR 108; Giorgianni v R (1985) 156 CLR 473; King v R (1986) 161 CLR 423; R v Guthrie & Nuttal [2006] VSCA 192; R v Hartwick [2005] VSCA 264; R v Makin [2004] VSCA 85, (2004) 8 VR 262; R v Lao [2002] VSCA 157.
Parties act in "joint criminal enterprise" or "common purpose" (to use the terminology often favoured in more recent cases) when the crime they commit is within the scope of an understanding or arrangement between them. All such parties are liable for the offending. When all such parties are present or constructively present at a crime, the particular kind of joint criminal enterprise or common purpose has often been described, particularly in earlier cases, as action in concert: R v Jensen and Ward [1980] VR 194; R v Lowery and King (No 2) [1972] VR 560. There has for long been another principle, now often described as extended common purpose, which extends liability of those who enter an agreement or understanding to commit a crime to such further crimes as were unintended but foreseen acts which might arise out of the originally planned crime: R v Taufahema [2007] HCA 11; Clayton;. Where the foresight extends only to some lesser crime than that committed, then the liability extends only to the lesser crime: Gillard v R (2003) 219 CLR 1 (murder and manslaughter).
An aider and abettor is present whilst aware a crime is being committed and does one or other of first, intentionally encouraging another to commit it, or, secondly, intentionally encouraging the other by words or by presence and behaviour to commit it, or, thirdly, intentionally conveying to the other by words or by presence and behaviour assent and concurrence in the other’s commission of it: R v Lam and Ors [2008] VSCA 109; R v Lowery and King (No 2) [1972] VR 560.
For federal offences, Criminal Code s.11.2.

COSTS
Costs against prosecution or defendant in Magistrates' Court: Magistrates' Court Act s.131; Latoudis v Casey (1991) 170 CLR 534; Junek v Busuttil [2004] VSC 115; Nguyen v Hoekstra [1998] VICSC 242; Norton v Magistrates' Court at Heidelberg (1995) 83 A Crim R 90.
Crimes Act s.545 also gives discretion to order prosecution costs against person convicted on indictable offence in higher courts but is rarely, if ever, applied.

CRIMINAL LIABILITY OF CHILDREN
The effect of Children and Young Persons Act s.127 is that in Victoria a child under 10 years cannot commit an offence. At one time, there was a presumption of impotence for boys under 14, but this is abolished by Crimes Act s.62. For a child aged 10 to 14 years, the prosecution must prove the child has the mental capacity to understand that he or she is doing something which ought not be done: Howard’s Criminal Law (5th ed.) p.475. This is sometimes known as the presumption of doli incapax. See R v ALH [2003] VSCA 129, (2003) 6 VR 27. The procedure and sentence options for children accused of crime in Victoria are mainly provided by the Children and Young Persons Act.

CROSS-EXAMINATION
Questions should not include comment and personal views of the cross-examiner, nor be of compound structure, invite argument or interrupt answers: Libke v R [2007] HCA 30. Cross-examination bounds considered in Wakeley v R (1990) 64 ALJR 321; R v Higgins, Ct of Crim Appeal, 2 March 1994.
Subject to avoidance of unfairness, the prosecution is entitled to open fresh relevant issues in cross-examination of defence witnesses: R v Chin (1985) 157 CLR 671; R v Vonarx [1995] VICSC 216, [1999] 3 VR 618; R v TSR [2002] VSCA 87, (2002) 5 VR 627. The unfairness in this context of splitting a prosecution case, see also R v Soma (2003) 212 CLR 299.
Evidence Act s.37; R v Reed [1995] VICSC 210.
Cross-examination on a document. A witness can be cross-examined on a document which has been used by the witness to refresh memory; however if such cross-examination goes beyond the part of the document which has been so used and the document has been called for and inspected, tender of the document can be required as part of the evidence in the case; the opportunity to require tender is not confined to the period when the cross-examination is occurring: R v Vella [2006] VSCA 248. On cross-examination on a document without establishing that it has been used by the witness to refresh memory: Evidence Act s.36; R v DP [2007] VSCA 219.
Cross-examination may be to credit. Alleged facts put merely to credit should be subject of direction to jury as to their limited function. However independent evidence to contradict answers given by a witness in cross-examination as to credit is inadmissible (the "collateral evidence" or "finality" rule) unless it tends to show that the witness is biassed, partial, not to be believed on oath or medically unreliable: Nicholls v R (2005) 219 CLR 196; R v FTG [2007] VSCA 109; R v Pearce [2007] VSCA 109, [1999] 3 VR 265 (medical); R v Umanski [1961] VR 242. Difficulties sometimes arise with prosecution cross-examination of defence witnesses. The general rule is against putting other offences or bad character to an accused, see Crimes Act s.399(5). Otherwise, prosecution cross-examination should not put new alleged facts merely to credit if they have also relevance to the issues or are unduly prejudicial.
Cross examination of a witness as to whether another witness is lying is improper. R v HRA [2008] VSCA 56; R v Davis [2007] VSCA 276; R v SWC [2007] VSCA 201; R v Gell [2006] VSCA 255; R v MMJ [2006] VSCA 226; R v Bajic [2005] VSCA 158, (2005) 12 VR 155; R v Buckley [2004] VSCA 185, (2004) 10 VR 215. It is legitimate to suggest to the witness that the witness is in error and to invite the witness in view of someone else's testimony to modify the story or admit the possibility of error; a witness can be asked if what another witness has said is true.
The rule in Browne v Dunn is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit, but it is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution: MWJ v R [2005] HCA 74, see also Nicholls v R (2005) 219 CLR 196; R v Thompson [2008] VSCA 144; R v SWC [2007] VSCA 201; R v McLachlan [1999] VSCA 127, [1999] 2 VR 553. In the particular circumstances of R v MG [2006] VSCA 264, a direction to the jury that the rule had been breached was held erroneous. In the particular circumstances of R v ZW [2006] VSCA 256, prosecution arguments to the jury that the rule had been breached were held legitimate. Where relevant, it is appropriate that an explanation for compliance with the rule be given to the jury: R v Demiri [2006] VSCA 64. Where rule has been breached, the judge may comment adversely but cannot withdraw consideration of the defence argument from the jury: R v Rajakaruna (No 2) [2006] VSCA 277.
Cross-examination of own witness if hostile. R v Ngo [2002] VSCA 188; R v McLachlan [1999] VSCA 127, [1999] 2 VR 665. An alternative course may be leading the witness: R v Shalala [2007] VSCA 199; R v Thynne [1977] VR 98.
Cross-examination of accused. In limited circumstances, there is a discretion to permit cross-examination of an accused as to bad character: Crimes Act s.399(5), 399(6); R v Thomas [2006] VSCA 167; R v Stantchev [1995] VICSC 144. R v Perrier (No 1) [1991] 1 VR 697; Phillips v R (1985) 159 CLR 45.
Cross-examination by trial judge is permitted but it is not to endeavour to fill gaps in a Crown case; nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone; nor to ask leading questions of an accused or any other witness in an endeavour to throw doubt upon the witness’s credit, particularly if the witness is the accused: R v Brdarovski [2006] VSCA 231, (2006) 166 A Crim R 366 .
Basha enquiry. Where fairness requires, cross-examination before trial commences of prosecution witness not called at committal: DPP v Denysenko [1997] VICSC 4, [1998] 1 VR 312; R v Basha (1989) 39 A Crim R 397.

DIPLOMATIC IMMUNITY
The immunities and privileges for diplomatic agents and family members stated by the Vienna Convention on Diplomatic Relations are made Australian law by Diplomatic Privileges and Immunities Act. They are set out in the Schedule to the Act and include, subject to waiver:
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity…
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of [certain real actions, succession actions and actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions].
Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State...
High officers and missions of certain international organizations have the same immunities and privileges: see International Organizations (Privileges and Immunities) Act and Specialized Agencies (Privileges and Immunities) Regulations. Some comparable privileges apply to overseas missions and persons associated with them: Overseas Missions (Privileges and Immunities) Act. Also, some privileges (not from criminal jurisdiction) apply for consular officials: Consular Privileges and Immunities Act.
See Green v Philippines Consulate General [1971] VR 12.

DOCUMENTS
Obtaining by subpoena duces tecum, or Magistrates' Court Act s.43 summons. Alister v R (1984) 154 CLR 404. It is for witness to object and for example in case of a police witness sometimes there is independent representation to do so. Grounds for opposition include privilege, abuse of process, lack of relevance or legitimate forensic purpose, lack of particularity, oppressive or burdensome to witness.

DRINK DRIVING
Road Safety Act; Road Safety (General) Regulations 1999
Mills v Meeking (1990) 169 CLR 214; Thompson v Byrne (1999) 196 CLR 141.,
The s.49(1)(b) offence: DPP v O'Rourke [2006] VSCA 252 (being subject to zero limit not an element but an aggravating factor).
Meaning of "under s.55(1)" in s.49(1)(f) does at least need there to have been positive preliminary breath test but does not need there to have been requirements to accompany to or remain at Police Station: DPP v Foster [1999] VSCA 73.
s.49(1)(e) refusal: Hrysikos v Mansfield [2002] VSCA 175
Wording for s.49(1)(f) charge: DPP Ref No 2 of 2001 [2001] VSCA 114.
Furze v Nixon [2000] VSCA 149, (2000) 2 VR 503. Sher v DPP [2001] VSCA 110, (2001) 120 A Crim R 585. Where excessive percentage more than 3 hours after driving, presumption of continuance though in a particular case continuance may not be a finding reasonably open: Wright v Morton [1997] VICSC 46, [1998] 3 VR 316.
For some consideration of the s.49(1)(g) charge, see DPP v Colbey [2006] VSC 357.
The s.49(4)(f) defence: DPP v Luff [2006] VSC 195
Necessity for strict proof that instrument meets definition of "breath analysing instrument": Impagnatiello v Campbell [2003] VSCA 154.
The belief required by s.55(2): Mitchell v DPP [2004] VSCA 36.
The s.49(6) restriction applies including to the s.49(4) defence: DPP v Hore [2004] VSCA 192.
The statutory provisions do not displace the common law which permits any bodily condition including blood alcohol concentration to be proved by any recognised and reliable scientific technique: even if a device is not within that class of notorious scientific instruments of which the accuracy is presumed at common law, a court may admit the results of a test conducted with a scientific instrument on the basis of evidence from a witness expert in its use: R v Ciantar [2006] VSCA 263.

DURESS & NECESSITY DEFENCES
R v Japaljarri [2002] VSCA 154, (2002) 134 A Crim R 261.
Duress: R v Goldman [2007] VSCA 25; R v Zaharias [2001] VSCA 168, (2001) 122 A Crim R 586; R v Lanciana (1996) 84 A Crim R 268; R v Darrington [1980] VR 353; R v Tawill [1974] VR 84; R v Dawson [1978] VR 536; R v Hurley [1967] VR 526. See further site notes on Homicide for which there is now instead statutory provision.
Necessity: R v Loughnan [1981] VR 443; R v Dixon-Jenkins (1985) 14 A Crim R 372; Woodward v Morgan (1990) 10 MVR 474 (speeding).

EXTRADITION
Between states or territories of Australia
A Commonwealth Act, the Service and Execution of Process Act, by sections 81-94 provides for the execution of warrants of apprehension from one state or territory of Australia to another, by order of a Magistrate.
Bail pending a hearing to determine whether a person is to be extradited interstate is in accordance with the State in which the person is being held: s.88.
Review by Supreme Court: s.86. Power to stay for oppression and unfairness: Lavelle (1994) 72 A Crim R 402.
To other countries
A Commonwealth Act, the Extradition Act, provides for the execution of warrants of apprehension issued from other countries with which Australia has extradition treaties. Its procedures include decisions by the Attorney-General and a Magistrate: see further DPP v Kainhofer (1995) 185 CLR 528; Attorney-General v Tse [1998] HCA 25. Various regulations under the Extradition Act bring extradition treaties into Australian law: see Extradition Act s.11 and regulations for example Commonwealth Countries, United States, Germany. The Magistrate is precluded from taking into account matters other than those set out in s.19(2) but their content varies according to the regulations applicable.
See also Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act and associated extradition regulations.
Bail pending a hearing to determine whether a person is to be extradited overseas must be dealt with in accordance with Extradition Act s.15, s.32 (New Zealand).
Review by Federal Court of an order for extradition: s. 21; Republic of South Africa v Dutton (1997) 77 FCR 128; Federal Republic of Germany v Parker [1998] FCA 803.
From other countries
Is Commonwealth executive power: Oates v Attorney-General (2003) 214 CLR 496. Confinement of trial to extradition offences or at least offences related to them: ("speciality") Extradition Act s.42; Truong v R (2004) 223 CLR 122.

GOOD CHARACTER OF ACCUSED ON ISSUE OF GUILT
Melbourne v R (1999) 198 CLR 1; Stanoevski v R (2001) 202 CLR 115. Includes "rule from case of Rowton" concerning defence evidence of good reputation of accused. Also the distinct entitlement to lead good character by lack of previous convictions: R v ALH [2003] VSCA 129, (2003) 6 VR 27. Goes to improbability of committing the offences, sometimes also to credibility of accused. Where good character is put issue, evidence of bad character is admissible in rebuttal.

HEARSAY
A statement is hearsay and inadmissible when it has been made in the absence of the accused and the object of the evidence is to establish the truth of what is contained in the statement; a statement of this kind may be relevant to other matters, for instance to prove the maker's contemporaneous state of mind, the relationship existing between particular individuals, the presence of a person at some particular time or place: Kamleh v R [2005] HCA 2; Pollitt v R (1992) 174 CLR 558; Walton v R (1989) 166 CLR 283; R v Macrae [1995] VICSC 108. Waiver of objection: R v Clark [2005] VSCA 294. There are some exceptions to hearsay inadmissibility. However out of court statements made by a co-accused are no exception to the rule:
Bannon v R (1995) 185 CLR 1.

HANDWRITING
Adami v R (1959) 108 CLR 605; Evidence Act s.148; R v Devenish [1969] VR 73; R v Browne-Kerr [1990] VR 78.

IMMUNITY OF ADVOCATE IN CRIMINAL CASES FROM CIVIL SUIT
An advocate is immune from suit whether for negligence or otherwise in the conduct of a case in court or work done out of court which leads to a decision affecting the conduct of the case in court or work intimately connected with work in a court: D'Orta-Ekenaike v VLA (2005) 223 CLR 1.

INNOCENT AGENCY
White v Ridley (1978) 140 CLR 342; Osland v R (1998) 197 CLR 316; Pinkstone v R (2004) 219 CLR 444; R v Hewitt [1998] VICSC 318, [1998] 4 VR 862. For federal offences, Criminal Code s.11.3.

INTOXICATION
R v O'Connor (1980) 146 CLR 64; R v Faure [1999] VSCA 166, [1999] 2 VR 537; R v McCullagh [2002] VSCA 163. For federal offences, Criminal Code s.8.1.

MOTIVE TO LIE
It is prohibited for the prosecution to argue or a judge to direct or comment that an accused has a special motive to lie: Robinson v R (1991) 180 CLR 531; R v Franco [2006] VSCA 302. It is prohibited for the prosecution to argue that the credibility an incriminating prosecution witness is enhanced because the witness has not been shown to have a motive to lie: Palmer v R (1998) 193 CLR 1; R v MMJ [2006] VSCA 226; R v Bajic [2005] VSCA 158, (2006) 12 VR 155; R v Cupido [2004] VSCA 183; R v Miller [2000] VSCA 67. It is however open to an accused with a reasonable basis for doing so to suggest that an incriminating prosecution witness has a motive to lie: R v Noonan [1998] VSCA 8. Where this occurs, the judge is required to direct jury that the credibility of the witness is not strengthened by the jury’s rejection of the motive suggested: R v PFG [2006] VSCA 130.

PARTICULARS
A defendant is entitled to whatever further particulars are reasonably required: R v Australian Char [1995] VICSC 168, [1999] 3 VR 834; Marchesi v Barnes [1970] VR 434; R v Magistrates' Court at Heidelberg [1976] VR 680; Lodge v Lawton [1978] VR 112. There is no "absolute right" to particulars for committal proceedings: Summers v Cosgriff [1979] VR 564. Whether prosecution is confined to particulars is matter for judicial discretion: DPP Ref No 1 [1992] 2 VR 405.

PERJURY
Need for corroboration: R v Holmes [2008] VSCA 128; R v Townley (1985) 24 A Crim R 76. For an alleged in-court perjury, evidence of the testimony from a person present is sufficient: R v Rowley (1825) Ry & Mood 299, 171 ER 1027; R v Munton (1829) 3 Car & P 498, 172 ER 519.

PERVERT COURSE OF JUSTICE
R v Murphy (1985) 158 CLR 596; Rogerson v R (1992) 174 CLR 268; Meissner v R (1995) 184 CLR 132; R v Aydin [2005] VSCA 85; R v Walsh [2002] VSCA 98; R v Briggs [2000] VSCA 234; R v Coombe [1999] VSCA 94; R v Allan [1995] 2 VR 468.

PRESUMPTION OF REGULARITY
Impagnatiello v Campbell [2003] VSCA 154.
Acting in a public office is evidence of due appointment to that office, not only in civil proceedings, but also in a criminal case; "omnia praesumuntur rite et solemniter esse acta": Cassell v R (2000) 201 CLR 189; Yamasa Seafood v Watkins [2000] VSC 156; Hardess v Beaumont [1953] VLR 315. It seems the presumption can fill gaps in proof but not of itself bestow a power though the "doctrine of the validity of the acts of de facto public officials" in some circumstances can do so: United Transport v Evans [1992] VR 240.

PRIVILEGE
Public interest: Sankey v Whitlam (1978) 142 CLR 1; State of Victoria v Brazel [2008] VSCA 37.
Legal professional privilege is for the client to invoke or waive: A-G v Maurice (1986) 161 CLR 475; British American Tobacco v Cowell [2003] VSCA 43 (limited waiver possible). It is confined to documents and communications which are brought into existence for the dominant or sole purpose of being submitted to legal advisers for advice or for use in legal proceedings: The Daniels Corp v ACCC (2002) 213 CLR 543; Baker v Campbell (1983) 153 CLR 52; Grant v Downs (1976) 135 CLR 674. For example identity of client is not privileged: Southern Cross v Crinis [1984] VR 697; CT v Coombes [1999] FCA 842. It does not apply where confidentiality already lost: Baker v Campbell (Gibbs CJ). It does not apply where the purpose was prima facie to facilitate crime or fraud: A-G v Kearney (1985) 158 CLR 500; Cross on Evidence (1991 ed as updated) para 25290.
Against self-incrimination: Evidence Act s.29; R v Roberts [2004] VSCA 1; Gamble v Jackson [1983] 2 VR 334.

PRIOR STATEMENTS OF WITNESS
Where inconsistent with testimony, may be put against credit: Evidence Act (Vic) s.35; Adam v R (2001) 207 CLR 96. Necessity for directions to jury as to limited use: R v Russom [2005] VSCA 145. Generally, prior consistent statements cannot be put to bolster credit, nor can failure to put prior inconsistent statements infer prior consistent statement: R v Mackaway [2005] VSCA 229; R v Hackett [2006] VSCA 138. An exception is with evidence of recent complaint in sexual offence cases: see site notes 2. Another exception is as rebuttal of claims of recent invention: Nominal Defendant v Clements (1960) 104 CLR 476; R v Heinze [2005] VSCA 124; R v DJT [1998] VICSC 320.

PROSECUTION DISCLOSURE
Notice of additional evidence: R v Devenish [1969] VR 737.
Prior convictions of prosecution witness: R v Garofalo [1998] VSCA 145, [1999] 2 VR 625.
That prosecution witness had received favourable treatment by the Crown in consideration of testimony against the accused: Grey v R [2001] HCA 65.
It is good practice in general for the prosecution to inform the defence the identity of any witness from whom a statement in possession of the prosecution has been obtained: Lawless v R (1979) 142 CLR 659; R v Higgins (1994) 71 A Crim R 429. Failure to disclose exculpatory evidence may constitute denial of natural justice amenable to relief in the nature of certiorari: Clarkson v R [1990] VR 745.
R v TSR [2002] VSCA 87, (2002) 5 VR 627; Cannon & Rochford v Tahche [2002] VSCA 84; Ragg v Magistrates Court [2008] VSC 1 (Bell J).

RELEVANCE
Evidence which is irrelevant is inadmissible; meaning of relevance: Evans v R [2007] HCA 59; Smith v R (2001) 206 CLR 650; R v Stephenson [1976] VR 376. Relevant evidence is not necessarily admissible. Various rules of evidence might apply to make it it inadmissible.

RES GESTAE
Bull v R (2000) 201 CLR 443; Pollitt v R (1992) 174 CLR 55; Harriman v R (1989) 167 CLR 590; R v Benz (1989) 168 CLR 110; R v Mark [2006] VSCA 251; R v GG [2004] VSCA 238. Evidence forming a continuous transaction with an alleged offence is admissible, even to the extent of going to prove fact asserted or implied, notwithstanding that the evidence breaches some other rule of inadmissibility.

TERRITORIAL & EXTRA-TERRITORIAL JURISDICTION
Before a charge of offence against Victoria law can succeed in a Victoria court, there must be Victoria territorial jurisdiction or Victoria extra-territorial jurisdiction. It seems that where an offence is brought beyond Victoria territorial jurisdiction or Victoria extra-territorial jurisdiction the Victoria court itself has jurisdiction, but no Victoria offence is proved and the case is therefore is to be dismissed: McDonald v Bojkovic [1987] VR 387. Where there is a factual contest upon which territorial or extra-territorial jurisdiction would depend, proof is on the balance of probabilities: Thompson v R (1989) 169 CLR 1.

There is territorial jurisdiction only where an accused commits in Victoria all the elements of a Victoria offence, or if there is an element recognised at common law as the gist of the offence, that element (this second limb now of rare or lacking example in Victoria as statute has largely displaced common law). With a continuing offence, there can be territorial jurisdiction notwithstanding that the offence is also committed elsewhere.

There is some extra-territorial jurisdiction for common law offences. The main examples of common law offences remaining now in Victoria are some homicide offences, affray, common assault and conspiracy to defraud (other conspiracies are now statutory). Absent any statutory provision, there is extra-territoriality for common law offences where an accused, though committing in Victoria not all or none of the elements of a Victoria offence, commits within Australia that which if all the elements were committed in Victoria would be a Victoria offence, and there is nexus to Victoria. The requirement of nexus is to be liberally applied, a real connection with the jurisdiction will suffice (sometimes called "real connection" nexus). Leading authority is Lipohar v R (1999) 200 CLR 485 (concerned South Australian case alleging common law conspiracy to defraud) and by the joint judgment of Gaudron, Gummow and Hayne JJ, the main underlying reasoning is that throughout Australia the common law has unity (other judgments did not go this far, Gleeson CJ finding it sufficient there was to be harm within the State in which case was heard, Callinan J finding real connection enough but refraining from necessarily extending the principle beyond conspiracy cases; Kirby J dissenting). With common law offences, where the aforesaid commission is at least partly outside Australia, it seems the required nexus is stricter, being actual or threatened breach of the peace within the State where the case is heard even if the accused be outside that State or Australia: Truong v R (2004) 223 CLR 122 accepting Privy Council case Liangsiriprasert v United States [1991] 1 AC 22 (sometimes called "terminatory" nexus). With common law offences, there can instead be statutory provision on extra-territoriality. For common law offences (and statutory offences) there is some extra-territoriality for coastal waters of Victoria and the seas beyond: Interpretation of Legislation Act s.57; Crimes at Sea Act. Similarly, two Victoria cases from the border region concern alleged common law murders where there was some statutory provision for extra-territoriality: Ward v R (1980) CLR 308; R v Graham [1984] VR 649; cf Thompson v R (1989) 169 CLR 1 where for common law murder in A.C.T. it was common ground A.C.T. statute allowed some extra-territoriality.

Any extra-territorial jurisdiction for statutory offences depends upon statute. Off-shore and at sea provisions are referred to above. Also, there are for Victoria some express creations of extra-territoriality for particular statutory offences, such as by Crimes Act sections 70B, 80A, 90, 181, 252, 317A, 321A and 321O. In accordance with general principles of statutory interpretation, there can for statutory offences also be implied creations of extra-territoriality, though there at least used to be a rebuttable presumption against it for penal provision: Thompson v R (1989) 169 CLR 1 (per Brennan J); McDonald v Bojkovic [1987] VR 387. In Truong v R (2004) 223 CLR 122, where some of the offences were statutory and there was no express provision for extra-territoriality, the court accepted that the offences including the statutory offences had extra-territoriality, the nexus being actual or threatened breach of the peace within Victoria even if the accused be outside Victoria or Australia. Stalking pursuant to Crimes Act s.21A is an example of a statutory offence held to have impliedly extra-territorial application of even no more than "real connection" nexus: DPP v Sutcliffe [2001] VSC 43 (Gillard J); leave to appeal declined without ruling on the issue Sutcliffe v DPP [2003] VSCA 34.

Certain places which otherwise would be within State territorial jurisdiction are made exclusively within Commonwealth territorial jurisdiction by Commonwealth Places (Application of Laws) Act 1970; Svikart v Stewart (1994) 181 CLR 548 eg certain Commonwealth buildings and facilities.

TIME LIMITATIONS
For Victoria, Magistrates Court Act s.26 provides
"A proceeding for a summary offence must be commenced not later than 12 months after the date on which the offence is alleged to have been committed, except where otherwise provided by or under any other Act."
Otherwise, there is hardly any statute of limitation affecting commencement of Victorian prosecution.
Time limits do not go to jurisdiction: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545. But cannot be waived by defence, at least where time limit is expressed as a bar to prosecution: R v Tait [1995] VICSC 154; [1996] 1 VR 662.
"In a practical sense such a point is not likely to arise unless the accused or the Crown raises the matter for consideration. Once such a point is raised it is the duty of the court to give effect to it": Tait is an example where the point was successfully taken on appeal though it had not been taken below.

UNREPRESENTED ACCUSED
Judge's duty to unrepresented accused: MacPherson v R (1981) 147 CLR 512; R v White [2003] VSCA 174.

VOIR DIRE
Crimes Act s.391A, s.391B. JH Phillips "The Voir Dire" (1989) 63 ALJ 46.
Grant is discretionary: Rowley (1986) 23 A Crim R 371. Need for significant issue to be tried: R v Callaghan [2001] VSCA 209, (2001) 4 VR 79; R v Lars Da Silva (1994) 73 A Crim R 91. Proof on voir dire is to prima facie standard for issues which would remain for the jury: Wendo v R (1963) 109 CLR 559. Where the voir dire issue is one for final determination by the judge, it seems balance of probabilities is the standard: R v Browne-Kerr [1990] VR 78. When guilt may be subject of cross-examination: R v Frijaf [1982] WAR 128; not upon whether alleged confession should be received by Wong Kam-ming [1980] AC 247 though the force of this authority in Victoria is questionable: R v Tofilau [2006] VSCA 40.

WARRANTS, SURVEILLANCE DEVICES & TELEPHONE INTERCEPTS
Warrant to search: Crimes Act s.465; Allitt v Sullivan [1988] VR 621; Drugs, Poisons and Controlled Substances Act ss.81, s.82.
Telephone intercept warrants issue under administrative power: R v Robinson (1996) 129 FLR 409; Telecommunications (Interception) Act. Defect on the face or non-compliance with terms can be raised in a trial court, especially as to the discretion to exclude unlawfully obtained evidence: R v Rich [1998] 4 VR 44; R v Nicholas [2000] VSCA 49. However it seems not to be open to a trial court to adjudicate on whether the issuing authority was in fact satisfied as to any statutory requirements or should have been: R v Robinson above. It seems likewise with listening and surveillance devices, at least in Victoria: Ousley v R (1997) 192 CLR 69 at 80, 87 and seemingly 130-131; Surveillance Devices Act.
In R v Robinson above, the Court distinguished between the issue of the warrant and the subsequent step, being the use of resulting evidence in proceedings. By operation of the Telecommunications (Interception) Act, the latter step turns on whether the evidence is "under a warrant". The Court did not decide the meaning of this expression or whether it permits opening up the issuing process. In Ousley v R above at 130-131, Gummow J. seems to make similar point.
At one time, the issuer was open to any administrative or judicial review grounds in a court with jurisdiction for such matters: Hilton v Wells (1985) 157 CLR 57; Grollo v Palmer (1995) 131 ALR 225; George v Rockett (1990) 170 CLR 104; Coco v R (1994) 179 CLR 427.
Surveillance evidence incidentally obtained outside purposes of warrant is not illegally obtained: R v Daniele (1989) 49 A Crim R 44.

WITNESSES
Audio and video link: Evidence Act (Vic). For County Court. Need for warning: s.42V; R v Moroz [2007] VSCA 30
Witness not called: Dyers v R (2002) 210 CLR 285; Jones v Dunkel (1959) 101 CLR 298.
Contempt in face of court and its procedure: Keeley v Brooking (1979) 143 CLR 162 (refusal to answer); R v Garde-Wilson [2005] VSC 441; R v Fraser (1984) 15 A Crim R 58. Accomplice refusing to testify: R v Smith (1991) 56 A Crim R 148. Conviction for contempt discretionary: Hancock v Lynch (1987) 26 A Crim R 366.
Use of witness deposition at trial: Evidence Act (Vic) s.55AB; R v Kotzmann (No 2) [2002] VSCA 21; R v Massie [1998] VSCA 82, [1999] 1 VR 542; R v Collins [1986] VR 3.

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page author
Don Just barrister
of Victorian Bar
Melbourne, Victoria, Australia

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latest 12 Sept 2008