OTTAWAY -v- THE STATE OF WESTERN AUSTRALIA

[2012] WASCA 20

Criminal law – Appeal against conviction – Transcript of intercepted telephone conversations between the offender and his co­offender provided to the jury – Whether the provision of the transcript occasioned a miscarriage of justice

Before: McLure P, Buss JA, Mazza JA

Date Heard: 20 October 2011

Decision Date: 30 January 2012

32 Particular 1 of the proposed ground of appeal is devoid of merit.

33 First, defence counsel, who is an experienced criminal trial lawyer, did not inform the trial judge (as requested by his Honour on 19 November 2010), either before or during the trial, of any specific parts of the transcript which she contended were inaccurate. This indicates that, on defence counsel’s assessment, there was no material inaccuracy in the transcript.

34 Secondly, his Honour said, after he had completed his summing up and defence counsel had submitted that the transcript should be retrieved from the jury, that there was ‘no issue about [the] accuracy’ of the transcript (ts 572). Defence counsel did not disagree. This reinforces the impression that the appellant’s experienced defence counsel was of the view that there was no material inaccuracy in the transcript.

35 Thirdly, defence counsel did not cross-examine Officer Paterson in relation to the accuracy of the transcript.

36 Fourthly, the appellant did not give any evidence, and defence counsel did not attempt to adduce any evidence from him, as to any material discrepancies between the disk containing the relevant telephone conversations on the one hand and the transcript of those conversations on the other.

37 Fifthly, the appellant gave evidence about the meaning conveyed by the telephone conversations in question. He put an innocent interpretation upon them.

38 Sixthly, I am satisfied, after examining Mr Thomson’s affidavit, that none of the discrepancies set out by him is material. Many of the discrepancies relate to parts of the conversations which the transcript notes are ‘indistinct’. It is apparent that, in these instances, Mr Thomson has sought to decipher the indistinct passages.

39 Seventhly, Mr Thomson’s affidavit does not satisfy the test for the admission of new evidence on appeal. But even if it did, any inaccuracies or deficiencies in the transcript did not prejudice the appellant’s case. It is not reasonably arguable that the discrepancies to which Mr Thomson refers, when evaluated in the context of the issues at the trial, including the appellant’s defence and the manner in which his case was run, occasioned a miscarriage of justice.

42 Particular 2 of the proposed ground of appeal is unmeritorious.

43 First, it is not unusual, when a recording of intercepted telephone conversations is tendered in evidence at a criminal trial, for a transcript of the recording to be provided to the jury as an aide-mémoire.

44 Secondly, in the present case, the provision of the transcript to the jury did not solely assist the State. In a case such as the present where the State and the accused contended that the conversations bore a different meaning, the provision of the transcript assisted both of them. Also, it enabled the jury to have a better understanding of what was being said by the parties to the conversations.

45 Thirdly, in the present case, the disk containing the relevant conversations was played to the jury, and the disk was received as an exhibit. The trial judge directed the jury that the disk containing the relevant conversations was the evidence and that the transcript was not the evidence.

46 Fourthly, as I have mentioned in the context of particular 1 of the proposed ground of appeal, the transcript was used extensively during the trial, without objection by defence counsel, in examining and cross-examining some of the witnesses.

47 There is no basis for any apprehension that the provision of the aide-mémoire to the jury may have caused it to focus undue attention on particular statements in the transcript rather than evaluating the evidence as a whole.

Ashton v Pratt (No 2)

[2012] NSWSC 3

CONTRACTS – Whether deceased made certain promises to plaintiff in 2003 in consideration of her leaving escort industry to become his non-exclusive mistress -alleged promises include establishment of multi-million dollar trust funds for plaintiff’s children, and half a million dollar annual allowance and allowances for accommodation and business expenses for plaintiff – whether deceased made promises question of fact – defendant calls no evidence, save for tendering some documents – plaintiff’s evidence challenged but uncontradicted – cases against deceased estates founded on oral utterances of deceased which only deceased can refute require Court to closely scrutinise plaintiff’s evidence – no legal requirement for corroboration but corroboration ordinarily sought – plaintiff’s version of events of doubtful reliability – in context of a case involving extraordinary wealth deceased who had other “mistress” relationships plaintiff’s evidence not inherently incredible – some limited corroboration of plaintiff’s version – plaintiff consulted solicitors about claim prior to death of deceased – defendant could have called associate of deceased to deny subsequent conversation detailing promises allegedly made to plaintiff – witness in defendant’s camp and practically available to defendant – Jones v Dunkel inference drawn that associate’s evidence would not have assisted defendant’s case – held that deceased made promises as alleged in 2003 conversation.

CONTRACTS – Certainty – terms of agreement discussed in 2003 conversation sufficiently certain and complete.

CONTRACTS – Intention to create legal relations – absence of express statement that arrangements are legally binding -inference of fact whether intention to create legal relations – intention objectively determined – parties to family, social and domestic arrangements or agreements generally do not intend to create legal relations – rebuttable presumption that in such contexts parties do not intend arrangements and agreements to be legally binding – creation of “mistress” relationship determines that context of present case social – not obvious plaintiff relied on enforceable promise – parties did not seek legal advice and agreement not recorded in writing – incongruous to assume deceased could have obtained injunction restraining plaintiff from returning to escort industry or claimed damages for disappointment if plaintiff did not adequately discharge “mistress” role – subsequent conduct considered in assessing whether legally binding agreement intended – plaintiff’s subsequent letter to deceased does not assert legal right to performance of promise – presumption no intention to create legal relations not rebutted – parties did not intend to make contract.

CONTRACTS – Contracts that are void, illegal or unenforceable on grounds of public policy – contracts that are sexually immoral and/or prejudicial to the status of marriage – historically contracts for an ‘immoral purpose’ unenforceable – changing social mores result in liberalised attitude to extramarital cohabitation – rule as to unenforceability of contracts that are sexually immoral and/or prejudicial to status of marriage still pertains – content of rule – authorities establish two classes of case where contract will be not be void: where contract does not bring about state of extramarital cohabitation but makes provision for extant one; and/or where sexual relationship part of wider relationship including cohabitation and mutual support – contracts to provide meretricious sexual services contrary to public policy and illegal – arrangements between plaintiff and deceased not made to facilitate continuation of extant cohabitation or for a relationship beyond sexual services – contract void as contrary to public policy.

ESTOPPEL – Equitable estoppel – plaintiff must establish that she acted to her detriment on basis of assumption adopted by reason of the conduct or acquiescence of the defendant in circumstances where unconscionable for defendant to deny assumption – plaintiff claims suffered detriment by reason of giving up escort business, closing accessories business and not documenting agreement with deceased in writing – plaintiff had left escort business six years prior to arrangement – no evidence deceased asked plaintiff to close accessories business – omission to record agreement in writing not relevant detriment – detrimental reliance not established – rule that courts will refuse to enforce rights where enforcement would offend public policy equally applicable to claims arising in estoppel as in contract – plaintiff’s claim in equity also fails on public policy grounds.

CONTRACT – Whether plaintiff’s claim not maintainable by reason of an accord and satisfaction said to have occurred in February 2005 – plaintiff offered via email $100,000 and transfer of ownership in a car “in full and final settlement” of all claims against the deceased – plaintiff accepts moneys and car – accord and satisfaction requires sufficient material in relevant documents so that it is seen that acceptance of payment will be in full and final settlement of claim – any reasonable reader would have construed payment to be made in full and final settlement of all claims – plaintiff’s reply to email that she “accepted” and “acknowledged” the communication evince agreement to its terms – plaintiff’s claims not maintainable.

CONTRACT – Whether plaintiff’s claim not maintainable by reason of an accord and satisfaction said to have occurred in November 2005 – plaintiff offered, via document provided to her by associate of deceased, $50,000 “in full and final settlement of all current and future claims” against deceased – plaintiff denies reading document – highly improbably plaintiff did not read document as corrected spelling of her name and signed it – no application to set aside release – plaintiff again released claims in November 2005.

Date heard: 12, 13 14 & 15 September 2011

Decision date: 16 January 2012

Judgment: Bereton J

Judgment for the defendant with costs.

Contract

30 Family, social, and domestic arrangements do not normally give rise to binding contracts, because the parties lack the necessary intention [ Teen Ranch Pty Ltd v Brown (1995) 87 IR 308, 310 (Handley JA, referring to Balfour v Balfour [1919] 2 KB 571)]. In Balfour , a husband’s promise to pay his wife an allowance of 30 per month until she could rejoin him in Ceylon was held not binding for lack of intent that it be legally enforceable. In Cohen v Cohen (1929) 42 CLR 91, Dixon J (as he then was) held an arrangement between intending husband and wife as to a dress allowance to be not a contract (at 96):

The parties did no more, in my view, than discuss and concur in a proposal for the regular allowance to the wife of a sum which they considered appropriate to their circumstances at the time of marriage.

 31 In Jones v Padavatton [1969] 2 All ER 616, a mother’s promise to maintain her daughter at a specified rate if she would go to England and read for the Bar with a view to later practising in Trinidad was held not legally binding, notwithstanding that performance would necessitate the daughter abandoning secure accommodation and employment in Washington and her teenage son’s education there. The court found that the arrangement between the mother and daughter was a family arrangement depending on the good faith of the parties in keeping the promises made and was not intended to be a binding agreement. The daughter’s claim thus failed. Salmon LJ said (at 621):

Did the parties intend the arrangement to be legally binding? This question has to be solved by applying what is sometimes (although perhaps unfortunately) called an objective test. The court has to consider what the parties said and wrote in light of all the surrounding circumstances, and then decide whether the true inference is that the ordinary man and woman, speaking or writing thus in such circumstances, would have intended to create a legally binding agreement.

32 As Ward J has recently explained in Darmanin (at [206]), there is a rebuttable presumption of fact that arrangements or agreements made in a family are not intended to have legal force, the rationale being that, at the time of making the alleged promise, the parties would not have regarded their arrangements in terms of legal consequences. As her Honour also explained (at [207]), this presumption has been applied beyond the family context to other social and domestic arrangements [citing, as examples, Coward v Motor Insurer’s Bureau [1963] 1 QB 259; Buckpitt v Oates [1968] 1 All ER 1145; and Parker v Clark [1960] 1 All ER 93] .

Public Policy

38 One of the heads of public policy under which contracts have traditionally and conventionally been held void and illegal is that they are sexually immoral and/or prejudicial to the status of marriage. In Girardy v Richardson (1793) 1 Esp Cas 13, 170 ER 275, Lord Kenyon CJ held that where the wife of the plaintiff – who managed the business of his house in letting the lodgings – let rooms to the defendant who was a “woman of the town”, knowing of the defendant’s mode of life, the contract for use and occupation of the rooms upon which the plaintiff sued was ” contra bonos mores ” and could not found an action. The classic case is Pearce v Brooks (1866) LR 1 Exch 213, in which the plaintiffs let on hire to the defendant, a prostitute, a new horse-drawn vehicle, with knowledge that it was to be used in the course of her trade. The contract was held illegal on the ground of sexual immorality. In Upfill v Wright [1911] 1 KB 506, the plaintiff by his agent let a flat to the defendant for a term of three years, the agent knowing that the defendant was the mistress of a certain man, and assuming that the rent would be provided by that man on account of her being a “kept woman”. The court held that as the flat was let for an immoral purpose, the plaintiff was not entitled to recover the rent.

39 In more modern times, the House of Lords in Fender v St. John-Mildmay [1938] AC 1 held that a promise made by a spouse, after a decree nisi for the dissolution of the marriage had been pronounced, to marry a third person after the decree became absolute, was not void as being against public policy. But Lord Wright explained (at 42) (emphasis added):

The law will not enforce an immoral promise, such as a promise between a man and woman to live together without being married, or to pay a sum of money or to give some other consideration in return for immoral association . But nothing of the sort was suggested in this case. On the contrary, the promise, if carried out, would have regularized an immoral association. English law recognises the right of divorced people to marry though their former consorts are alive. The law has furthermore sacrificed a rigid idea of morality to the idea of making reparation by enforcing obligations under seal by a man to pay money to a woman in respect of past immoral cohabitation, though it might have been said that to enforce such obligations tended to encourage immorality.

 40 Later, his Lordship said (at 49):

Of course if the promise is given in consideration of future immoral relations it is illegal and void on that ground , but I cannot see any implied general tendency to immorality in such a promise. If the guilty parties are living together in immoral relations, the promise points to moral relations being established by marriage in the near future, when the decree is made absolute. If the parties are acting morally, I cannot see why the promise after decree nisi should lead them into immorality.

 41 Lord Thankerton said (at 26):

There remains the question of immorality, and it is in this regard that I find a vital distinction between a promise to marry on the contingency of a dies incertus , and a promise to marry on the decree nisi, already in existence, being made absolute . The general tendency of the latter, I should assume, will be to promote patience until the expiry of a period, which, in the vast number of cases, is practically mechanical in its operation.

Black & Black

[2008] FamCAFC 7

FAMILY LAW – APPEAL – FINANCIAL AGREEMENT – Parties had a short marriage of 18 months during which they entered into a financial agreement – Husband sought to have the financial agreement set aside on the basis that it did not comply with the statutory requirements for a binding financial agreement pursuant to s 90G as it was prior to the 2004 amendments – The trial judge adopted a purposive approach to interpreting the requirements of s 90G and held that the financial agreement was binding – Held on appeal: the financial agreement did not meet the requirements of s 90G(1)(b) in that it failed to include a statement that the parties had received independent legal advice in relation to all matters set out in the then s 90G(1)(b); a strict interpretive approach and strict compliance requirements should be applied where legislation ousts the court’s jurisdiction to make adjustive orders under s 79 – Appeal allowed, financial agreement set aside and retrial of the parties’ property settlement claims ordered

Date heard: 4 June 2007

Date delivered: 24 January 2008

Judgment of: Faulks DCJ, Kay and Penny JJ

29. A binding financial agreement which is valid under the relevant provisions of the Part VIIIA has the effect of ousting the jurisdiction of the court in respect to certain matters covered by the agreement. Section 71A specifically states that Part VIII of the Act which, inter alia, empowers the court to alter property interests, does not apply to financial matters or financial resources to which a binding financial agreement applies.

Senior v Anderson

[2011] FamCAFC 129

FAMILY LAW – APPEAL – (Per May J) – Property – Binding Financial Agreement – Where the subjective and common intention of the parties regarding the division of their property was properly expressed in the agreement – Where the mistakes in the agreement were of a technical nature – Where the incorrect reference to s 90C can be rectified to s 90D to reflect the parties’ true position – Where the incorrect reference to the parties’ names cannot be rectified by s 90KA but where it is appropriate to correct the solicitor’s error by reading the certificates as if they referred to the parties correctly – Where the remedial provisions in this case inevitably lead to a conclusion that it would be unjust and inequitable if the parties’ agreement is found not to be binding – Given the circumstances it is not necessary to remit the matter to the trial judge – Where this case is a good demonstration of Parliament’s intentions to not allow technical faults to be the basis for setting aside an agreement – The appeal should be dismissed.

FAMILY LAW – APPEAL – (Per Strickland J) – Property – Binding Financial Agreement – Where there were errors in the Agreement and the annexed Solicitor’s Certificates – Where the Agreement is described as being a s 90C Financial Agreement instead of a s 90D Financial Agreement and where the names of the parties were incorrect in the Solicitor’s Certificates – Whether the trial judge erred in rectifying the Agreement to accord with the provisions of s 90C of the Family Law Act 1975 (Cth) and in rectifying the Solicitor’s Certificates – Whether the trial judge erred in declaring that after rectification the Agreement was a Financial Agreement pursuant to s 90D of the Act and was binding on the parties pursuant to s 90G(1) of the Act – No merit found in the grounds of appeal relating to the rectification of the mis-description of the section pursuant to which the Agreement was made and the finding that the Agreement was a Financial Agreement, although the trial judge erred in finding that the power to rectify was derived in part from the recent amendments to the Act – Merit found in the grounds of appeal relating to the rectification of the Solicitor’s Certificates and the finding that the Financial Agreement was binding on the parties pursuant to s 90G(1) of the Act – Appeal allowed and remitted to the trial judge to determine whether the financial agreement can be declared binding pursuant to s 90G(1A) and (1B) of the Act.

FAMILY LAW – APPEAL – (Per Murphy J) – Property – Binding Financial Agreement – Effect of the transitional provisions of the Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth) (“the Amending Act”) – Where the effect of Item 8A of Schedule 5 of the Amending Act on the Binding Financial Agreement was not considered by the trial judge – Where the wording of the Amending Act is not clear and unambiguous – Where guidance is required regarding the retrospective operation of the Act – Appeal allowed.

FAMILY LAW – COSTS (Per Strickland & Murphy JJ) – Where the trial judge erred – Appropriate in the circumstances for both parties to be granted costs certificates for both the appeal and the re-hearing.

Hearing date: 3 March 2011

Date delivered: 14 June 2011

Judgment of: May, Strickland & Murphy JJ

Proceeding Appeal: [2011] FamCA 802

34. Young J dealt directly with the argument of the wife that to apply section 90KA was an error because the section was being used to create a financial agreement when there was none in the first place. His Honour rejected this argument and referred to a decision of the Full Court in Kostres and Kostres [2009] FamCAFC 222; (2009) FLC 93-420. His Honour was correct in concluding that the purpose and intent of section 90KA is primarily one of enforcement, however, the section also applies the general law to determine “the validity, enforceability and effect of contracts”. To the extent that it is necessary section 90KA imports the common law into these provisions. It is undoubtedly correct that the validity of an agreement is to be determined by reference to the document itself. To be binding in this case the provisions of section 90G must be satisfied (albeit through section 90G(1A).

Ungureanu v The Queen

[2012] WASCA 11

Criminal law ‘Money laundering’ offences Sentencing Meaning of ‘co­operation’ Voluntariness Whether co­operation by participating in a compulsory statutory examination Whether co­operation by giving evidence at trial of issues Inference of knowledge or belief from surrounding circumstances.

Coram: McLure P, Buss JA, Murphy JA

Heard: 3 October 2011

Delivered: 27th January 2012

Darcy (bht Diane Aldridge) v State of New South Wales

[2011] NSWCA 413

TORTS – wrongful imprisonment – detention of person with disabilities in residential centre – whether imprisonment – absence of formal consent by Public Guardian – whether Public Guardian acquiesced in detention – justification for detention – availability of aggravated or exemplary damages – principles

Before Allsop P at 1; Beazley JA at 11; Whealy JA at 13

Orders Appeal is dismissed with no order for costs.

Decision Date 21 December 2011

Gattellaro v Spencer and ors

[2011] NSWCA 415

NEGLIGENCE – duty of care – solicitors – whether breach of professional duty – failure to convey offer of settlement to appellant – causation – whether trial judge’s conclusion on causation was correct

LEGAL PROFESSION – solicitors – advocate’s immunity – question not arising where breach of duty and causation not established

Before Beazley JA at [1]; Young JA at [111]; Sackville AJA at [112]

Orders Appeal dismissed with costs.

Decision Date 20 December 2011

Hearing Dates 17 November 2011

Stanford & Stanford

[2012] FamCAFC 1

On Appeal From [2010] FCWAM 15

FAMILY LAW – APPEAL – PROPERTY – Where the parties are of a considerable age and each have children to former spouses – Where the parties were physically separated due to the frailty of the wife and her need to live in a nursing home – Where the husband remains living in the former matrimonial home – Where the wife’s children ask that the former matrimonial home be sold and the proceeds of sale spent on the wife’s care – Where the orders of the Magistrate provided, inter alia, for the wife to receive the sum of $612,931 – Where the husband maintained that he could only satisfy the orders by selling the former matrimonial home

FAMILY LAW – APPEAL – PROPERTY – Whether and if so in what circumstances can the court make an order for property settlement pursuant to s 79 where the marriage is still intact but where there has been the physical separation of the parties as a result of one of the parties health – Where the various options available in the alternative to the making of final orders were not considered – Where the Magistrate should have considered the possibility of making an order for spousal maintenance – Where it could not reasonably have been found that the wife needed a sum of money to provide for her financial future or that the level of care would improve by the making of a final settlement order – Where the Magistrate failed to give adequate reasons as to why her Honour considered the orders made to be just and equitable – Where although there was jurisdiction to make a property settlement order, the discretion to do so should not have been exercised in this case – Appeal allowed

FAMILY LAW – APPEAL – PROPERTY – Where the wife died before the discretion of the Magistrate was re-exercised – Where the requirements for the continuation of proceedings after the death of a party have been complied with – Where both parties agree that the Magistrate’s findings as to contribution should not be disturbed – Where a re-exercise of discretion was deemed appropriate – Where it was ordered that the wife’s legal personal representatives receive the fixed sum of $612,931 upon the death of the husband – Where the order recognises the wife’s contribution-based entitlement to the property pool and protects the husband from a need to move from his home earlier than he would wish, allows for a capital sum to be provided should it become necessary for his care and avoids an incorrect assessment of the husband’s current and future needs – Should the home be sold prior to the death of the husband, and in the event that the payment is not made to the wife at that time, security for payment is required. Failing agreement as to the form of the security the parties are at liberty to apply to the Court

FAMILY LAW – COSTS – Parties to file written submissions as to costs

Before Bryant CJ, May & Moncrieff JJ

Orders:

1. The husband by his case guardian pay to C Rafter and L Brims, the personal representatives of the wife, the sum of $612,931 (without interest) (“the payment”) upon the death of the husband or at such earlier time as may be determined by the case guardian.

2. In the event of the sale of the former matrimonial home in the State of Western Australia prior to the death of the husband, and in the event that the husband’s case guardian does not determine to make the payment at that time, the husband’s case guardian is to provide security for the payment in a form acceptable to the personal representatives of the wife, and failing agreement there be liberty to apply to the Court as to the form of the security.

3. The costs of the submissions of each party in relation to the re-exercise be reserved. Should either party wish to seek costs then such application be made within 28 days accompanied by written submissions.

Decision Date 19 January 2012

52. In our view, the many years of marriage and the wife’s contributions demand that those moral obligations be discharged by an order for property settlement.

53. We are mindful of the fact that this is a case in which the marriage of the parties had not broken down when the proceedings were commenced and that the wife’s claims were brought in order to provide her with access to funds which it was asserted she required for her support. Her death now removes the need for those funds. But in the course of the proceedings, the wife established that she had made contributions to the assets enjoyed by the parties during their long marriage, particularly the former matrimonial home, and in our view it continues to be appropriate to allow the wife’s estate the benefit of a share of the property in which she has established an interest.

Harris & Harris

[2011] FamCAFC 245

FAMILY LAW – APPEAL – PROPERTY – Family discretionary trust – Where the trial Judge found the assets of the trust to be assets of the husband – Whether the trial Judge erred in so finding – Where the Full Court relying on the observations of French CJ in Kennon v Spry (2008) 238 CLR 366 concluded that the husband did not as a matter of law directly control the trust and that the trial Judge’s findings did not support a conclusion of indirect control.

FAMILY LAW – APPEAL – PROPERTY – Calculation of property pool – Whether certain property of the wife should have been “added-back” in the calculation of the value of the parties’ property – Where the Full Court found that in the absence of the trial Judge providing sufficient reasons for certain of these determinations, the relevant grounds of appeal had substance.

FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Whether the trial Judge erred in dealing with the wife’s application under s 44(3) to institute spousal maintenance proceedings out of time at the same time as he determined the final property settlement – No substance in this complaint – But substance found in the complaint about the trial Judge’s decision to award maintenance made prior to determination of property division.

FAMILY LAW – APPEAL – Appeal allowed – Orders set aside – Wife’s application for orders with respect to property settlement and for leave under s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for spousal maintenance be remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Costs of the appeal – No order for costs – Costs certificates awarded to both parties under s 9, s 6 and s 8 of the Federal Proceedings (Costs) Act 1981 (Cth).

Before Finn, Thackray and Strickland JJ

Orders
1. The appeal against the orders made on 18 May 2010 (as amended on 26 May 2010) by the Honourable Justice Bell be allowed.

2. The orders be set aside.

3. The wife’s application for orders with respect to property settlement and for leave under s 44(3) of the Family Law Act 1975 (Cth) to institute proceedings for spousal maintenance, be remitted for rehearing by a Judge other than the Honourable Justice Bell.

4. There be no order for costs in relation to the appeal.

5. The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

6. The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

7. The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

Decision Date 22 December 2011

Pak v The Queen

[2012] VSCA 4

CRIMINAL LAW – Sentence – Possession of imitation firearm whilst a prohibited person – Effective repeal of provision creating offence – Offending conduct now proscribed by different provision with a lower maximum penalty – Legislative changes assented to at time of sentence but not in effect – Elements of fresh offence different from those of offence charged – No error – R v Ronen (2006) 161 A Crim R 300, R v Bowen [2008] VSCA 33 and Grenfell v R (2009) 196 A Crim R 145 considered – No point of principle.

 

Before: BUCHANAN JA and WILLIAMS AJA

Decision Date: 19 January 2012