REFORM OF CRIMINAL TRIAL
PROCEDURE
Dietrich and the Appropriate Way
to Deal With Related
Applications
Nunzio LaRosa,
Managing Solicitor,
Victoria Legal Aid
In the documentation provided to assist in the
preparation of this paper, I noted that "the paper will seek to identify the
appropriate boundaries for executive and judicial action in relation to the
indigent defendant"; further it will consider "whether the trial judge
should be involved in determining indigence." "The experience with s.360A of
the Victorian Crimes Act" is to be commented on. Finally, the question of
whether "the person determining indigence should have a say in the level of
representation to be provided" may be addressed. If this paper brings
together all the varied views on the matter at hand, it will have achieved
something. If it stimulates debate, which in turn assists in arriving at some
consensus of how best to deal with the problems that arise, then it has achieved
its purpose.
An appropriate starting point in this
discussion should be the case of Dietrich[1]
itself, or possibly the law in Australia just prior to that decision. As Deane,
J. stated in Dietrich,
"it is true that ..... past practice in this
country has been to force a person accused of a serious crime to trial,
notwithstanding that, by lack of means, he is unable to obtain legal advice or
representation."[2]
Certainly in Victoria in the late 1980's and
early 1990's, a number of cases spring to mind (Dietrich, Cunningham) where an accused has been unrepresented and
been forced to proceed with the trial, with devastating results to the Criminal
Court lists, and the subsequent appeals to the Full Court (as it was then), and
no doubt other jurisdictions have had similar experiences.
What then did the case of Dietrich decide? The now well quoted passage of the majority
states:
".....the approach which should be adopted by a
Trial Judge who is faced with an application for an adjournment or a stay by an
indigent person charged with a
serious offence who,
through no fault on his or her part, is unable to obtain legal
representation should be that ... in the absence of exceptional
circumstances, the trial should be adjourned, postponed or stayed
until legal representation is available. If, in those circumstances, an
application that the trial be delayed is refused and, by reason of the lack of
representation of the accused, the resulting trial is not a fair trial, any
conviction of the accused must be quashed by an appellant court for the reason
that there has been a miscarriage of justice in that the accused has been
convicted without a fair trial."[3] (my
italics).
The High Court specifically rejected the
proposition that an accused had a right to representation at the public expense;
rather, it recognised that an accused person has a positive right to a fair
trial, or more correctly stated, to a trial that is not unfair. Accordingly, if
in all the circumstances of the particular case, lack of representation would
mean that an accused is unable to receive such a trial, then the Court should
use its inherent jurisdiction to stay the proceedings.[4]Such a
finding is, however, inextricably linked to the facts of the case and the
background of the accused.
So stated, the principle is simple enough, yet
it is the resultant difficulties encountered in the implementation of that
principle that have presented difficulties in the administration of criminal
justice in the various jurisdictions. In a country where the vast majority of
criminal trials are dependent on the provision of a definitely finite amount of
"public expense" (otherwise known as legal aid funds), the tension between the
Court's desire to ensure that accused are represented and accorded a fair trial,
and the attempts by legal aid bodies to keep some measure of control on the
amount of monies spent in the defence of criminal charges in the superior
courts, is evident. Experience has shown that trials involving unrepresented
accused are invariably longer, as the mechanisms available to shorten the
criminal trial process cannot be utilised (eg: admissions as to facts and
issues, leading of witnesses, etc.), the risk of aborted trials are increased,
and the appeal path is inevitably trodden; systemically, a disaster. However,
the mechanism to avoid such a situation, as outlined in Dietrich, is for the Court to stay proceedings. The result
is that the trial process is thwarted and, unless funding is made available to
the indigent unrepresented accused, no trial is had. This is a situation that no
government will accept, nor should it, as the wider community including victims
as witnesses, also has an interest in seeing the criminal justice system work.
Therein lies the dilemma.
Turning to the issue of the respective roles of
the Courts and Legal Aid Commissions, and the appropriate boundaries of
executive action (through such funding bodies) and judicial action, what is the
current state of affairs? Governments, through legislation, have created the
various legal aid bodies in the States and Territories, and through those
bodies, the legal aid funds are controlled and administered. Each has an
obligation, however phrased, to deal with the fund in an efficient and economic
manner. To that end, guidelines have been developed, dealing with both issues of
"means" and "merit". Currently, there exists a national means test, which
governs the eligibility of an accused to legal assistance, and is the threshold
to a grant of assistance.
A legal aid body is obliged to be satisfied as to an accused's
eligibility for legal assistance before making a grant of assistance. If an
accused satisfies the legal aid body that he/she is without sufficient funds (as
per the means test), then there would be little or no argument that the aspect
of indigence would be made out. The problem that arises in this regard is
whether it is appropriate to utilise such a test, set by a non-judicial
administrative agency, as being determinative of an issue so close to the heart
of the requirement of a fair trial.
The two opposing views are simply stated: on the one hand, the
view that the legal aid commissions' means test is the appropriate test of
indigence, and on the other hand, that such a matter is so important that, in
the particular circumstances of each case, it should be a matter for the Court
to determine. Should the former position hold sway, which seems to be the
starting position of the Working Party on White Collar Crime Reform[5], the Court will be
required to permit its processes to be used in situations where it is of the
view that a fair trial cannot be had for an accused in a particular case, a
position it would find untenable. The main argument in favour of this position
would appear to be an economic one that is, that the Court is not responsible
for the economic consequences of any decision it might make. The contrary view, advanced by the Working
Group on Criminal Trial Procedure[6] and the Law Council of
Australia[7], is that the Court should be left to supervise its
own processes and that the fundamental principle of a fair trial can only be
properly guarded by a watchful and responsible Court.
Presently, all jurisdictions appear to follow
the latter view, no legislation having been passed which seeks to impose a means
test guideline as a qualifying test to obtaining of a fair trial, Speaking from
the experience in Victoria, particularly since the 1998 amendments to s.360A of
the Crimes Act 1958 (Victoria), the situation is one of review by
the Court of the decision of Victoria Legal Aid. The relevant provision in
Victoria is s.360A, which reads as follows:
S. 360A
Adjournment or stay of
trial
(1) Subject to sub-section (2) and despite any
rule of law to the contrary, if
(a) a person is committed for trial;
or
(b) a presentment has been filed
-
the fact that an accused has been refused
legal assistance in respect of a trial is not a ground for an
adjournment or
stay of the trial.
(2) If a court is satisfied at any time before
or during the trial that -
(a) it will be unable to ensure that the accused
will receive a fair trial unless the accused is legally represented in the
trial; and
(b) the accused is in need of legal assistance
because he or she is unable to afford the full cost of obtaining from a private
practitioner legal representation in the trial -
the court may order Victoria Legal Aid to
provide assistance to the accused, on any conditions specified by the court, and
may adjourn the trial until such assistance is provided.
(3) Despite anything to the contrary in the
Legal Aid Act 1978, Victoria Legal Aid must provide legal representation in
accordance with an order under sub-section (2).
(4) Despite anything to the contrary in
sub-section (2 ) -
(a) if the court is satisfied that,
in relation to the trial, the accused has engaged in vexatious or unreasonable
conduct that has contributed to the accused's inability to afford the full cost
of obtaining from a private practitioner legal representation in the trial, the
court may refuse to make an order under sub-section (2);
(b) the legal burden of proof for the
purposes of subsection (2)(b) that the accused is unable to afford the full cost
of obtaining legal representation rests on the accused;
(c) for the purposes of providing under
sub-section (2)(b) that the accused is unable to afford the full cost of
obtaining legal representation, regard must be had to property
-
(i) that is subject to the effective control of
the accused (whether or not the accused has an interest in it);
or
(ii) in which the accused has an interest
-
as determined in accordance with section 9
or 10 of the Confiscation Act 1997;
(d) a reference in sub-section (2) to the
provision of assistance to the accused is a reference to the provision of legal
representation;
(e) the conditions that may be specified by
the court under sub-section (2) do not include conditions relating to the
identity, number or remuneration of persons representing the
accused;
(f) the court must give Victoria Legal Aid
an opportunity to appear and be heard before an order is made under sub-section
(2).
(5) Despite anything to the contrary in
section 17A of the Supreme Court Act 1986, Victoria Legal Aid may appeal
to the court of Appeal, with leave of the Court of Appeal, fon an order under
sub-section (2) of the trial Division constituted by a
Judge.
(6) This Section, as amended by section 6 of
the Crimes (Amendment) Act 1998, applies to and with respect to an order
made by a court under sub-section (2) of this section after the commencement of
that section, whether proceedings relating to the relevant trial commenced
before or after that commencement.
The initial provision was limited to
s.(1). Ss.(2) and (3) were introduced by the 1995 amendments, whilst ss.(4), (5)
and (6) were the product of the 1998 amendments.
Rather than require the Court to accept
Victoria Legal Aid's means test in determining the question of indigence, which
would in such cases render s.360A of the Crimes Act redundant, the Court is
required to have regard to such income or assets over which he/she has effective
control. Victoria Legal Aid has some expertise in making inquiries as to assets
and interests of an applicant for assistance and can accordingly assist the
Court by putting before it information which may not be forthcoming from an
accused seeking to convince the Court of his/her state of indigence. Indeed, as
can be seen from the provision, the onus is on the accused. Such an approach
clearly seeks to address the concerns raised in white collar cases, where often
elaborate steps are taken to distance the accused from assets. However, it also
caters for the situation, as arose in the case of R v Casser,[8] where a young offender, charged with murder, was
refused assistance because his parents had significant assets, even though the
relationship between parents and son was strained, and the parents had refused
to provide any financial assistance. An order under s.360A of the Crimes Act was
made.
On any investigation by the Court into the
question of indigence, the evidentiary question must arise as to who has the
burden of proving the assertion. In Victoria, in the case of R v
Reid[9], the Court had held that the accused bore the onus
of raising some evidence that he/she is unable to afford the full cost of
obtaining private legal representation; however, once this evidential onus had
been satisfied, it was for Victoria Legal Aid to prove the contrary. The 1998
amendments sought to make the position clear, and s.360A(4)(b) makes it clear
that the accused bears the onus of proving that issue to the satisfaction of the
court.
Accordingly the Court maintains control of its
own processes; however, they allow for the Court to have regard to a number of
factors which, from a funding bodies perspective, are important and relevant to
how limited legal aid funds are to be dispersed. This approaches the ultimate
position suggested by the Working Party on White Collar Crime
Reform.
In the jurisdictions that apply the common law
as stated in Dietrich, the position is somewhat
similar, in that the court looks at the particular circumstances of the instant
case, though certainly does not appear that there is any structure of matters
that the court is required to take account of.
In the case of R v Karounos,[10] it was said by King C.J that it was open to
the court, if it saw fit, to review the Legal Aid Commission's assessment of
indigence. Again, this approach can be seen in A.G(NSW) v
Milat,[11] where the Court emphasised the
relationship between the Legal Aid Commission and the trial judge as
one:
“where their respective functions are separate
and distinct it is for the trial judge to decide, in light of what the Legal Aid
Commission has done, whether there has been an infringement of the accused's
right to a fair trial.
Tied closely to this issue of indigence is the
issue of fault. The High Court in Dietrich spoke of “the
indigent accused who, through no fault of their own, was unable to obtain legal
representation..." This fault inquiry, in states other than Victoria (prior,
at least to the 1998 amendments), has been the source of much judicial analysis
and consideration.
In R v
Small[12] Hunt C.J explains fault:
“The concept of fault should not, in my view,
be interpreted narrowly. It is a well-known and frequently encountered
phenomenon that some accused persons are psychologically quite unable to face up
to the fact that their trial is to proceed. They put off applying for legal aid
until it is too late for their case to be prepared adequately. Very rarely could
such conduct properly or fairly be characterised as a deliberate refusal or
wilful neglect on their part, yet the absence of legal representation can
certainly be characterised as resulting from their fault. The criminal justice
system would be crippled if such persons had either the absolute right to an
adjournment in order to finally arrange legal representation or the right to a
new trial if the trial is unsatisfactory as a result of the absence of such
representation when they are solely responsible for that state of
affairs".
The later case of R v
Batiste[13] is a further example where the
notion of fault was appropriately interpreted in a manner which was consistent
with the view that there was a public interest in the administration of justice.
The most recent consideration by the High Court of the reference in Dietrich to the accused being unable to obtain legal
representation “through no fault on his or her part" comes in
Craig v
South Australia[14]. The Court held that:
“these comments were not intended to indicate
that in every instance of misbehaviour, improvidence or other fault in the part
of the accused which had contributed to his or her lack of representation must
automatically preclude entitlement to a stay. In this regard, we agree with the
view expressed by Olson, J in the Full Court that:
...what was in contemplation was a test which
focused on the reasonableness of the conduct of the accused in all the
circumstances and excluded situations in which it could fairly be said that the
accused, by his gratuitous and unreasonable conduct had been the author of his
own misfortune.
A fortiori it was not intended to suggest that
the power to grant a stay on the grounds of inability to obtain legal
representation does not exist at all if there has been, as a matter of objective
fact, contributing fault on the part of the
accused".[15]
Smart, J in R v Kay .[16]
follows this reasoning.
In Victoria, the question of fault was
discussed, in the context of s.360A, (prior to the 1998 amendments), in
the decision of Victoria Legal Aid v Boris Beljajev and
ors[17]. In the legislation there under consideration, the
Court distinguished the position in Victoria under s.360A from those
jurisdictions operating under the Dietrich principles, and held
that
“the Court was invested with the jurisdiction
to order Victoria Legal Aid to provide assistance (and to adjourn the trial
until it does) if it was satisfied of two criteria;
1. That it cannot ensure that the accused will
receive a fair trial unless the accused is legally represented (s360A(2)(a);
and
2. That the accused is in need of legal assistance
because he or she is unable to afford the full cost of obtaining legal
representation from a private practitioner (s.360A(2)(b)).
There is nothing in those criteria to suggest
that the Court is required to take into account wide ranging issues of fault in
determining whether it can ensure a fair trial to the unrepresented
accused".[18]
His Honour Winneke, P, then went on to state
that he was of the view:
“that the concept of the “fair trial"
contemplated by s.360A(2)(a) was not intended by the legislation to be eroded by
considerations of “contributing fault". Those considerations will become
relevant in the exercise of the Court's discretion once it is satisfied of the
criteria referred to in the subsection".[19]
The provisions of s.360A(4)(a), as introduced
in the 1998 amendments, may be seen as a response to the reasoning of the Court
in Beljajev, (and the experience of the Victorian Courts
with such cases as the Frugniet series of
cases[20] on the question of fault, and provide specifically for
the court to look at the accused behaviour and the concept of a fair trial.
This, it would appear, that the position is similar in all states on this
point.
Clearly, the one defining difference between
Victoria and the other States and Territories is the power of a superior Court
to order that legal assistance be provided to an indigent unrepresented
accused, where to proceed with the trial without representation would be to deny
that accused of a fair trial. That power is found in s.360A(2).
The Court has the power to adjourn the trial
until such assistance has been provided. In practice, applications pursuant to
that section are made earlier rather than later in the proceedings, particularly
in the County Court. To date, there have been some 46 such applications made to
the County and Supreme Courts. In contrast, the position in the other States and
Territories appears to be that as experienced in such cases as R v
Souther [21]. In that case, neither the Legal
Services Commission nor the South Australian government was willing to provide
adequate compensation and Counsel refused to act. Olsson, J applied Dietrich and stayed the proceedings until the stand off
situation had been resolved in a fair and satisfactory manner. Such a situation
allows for uncertainty, which ought not to exist in a criminal justice
system.
The remedy provided by a provision such as
s.360A eliminates such a dilemma by providing a decisive response to each
situation that it is applied to. A court will either order that the trial
proceed, without representation, once it has formed the view that an accused can
be accorded a fair trial and exercised its discretion so, or it will order
Victoria Legal Aid to provide assistance if it is not so
satisfied.
Turning now to the question of whether the
Court has the power to determine the level of representation, or whether such
matters are really within the province of the legal aid body providing the
funding, it would appear that there is common ground across Australia that such
matters are properly left to the funding body. The common law position was
stated in A.G for NSW v Milat[22]. The trial judge
had ordered a stay of the accused's murder trial until funds were provided for
the legal representation in accordance with a formulae set by his Honour, and
further stipulated that the (second) junior counsel should have at least ten
years practice in the criminal jurisdiction. This was in the situation where
legal assistance had been granted, but the funding body would not provide a
level of assistance “acceptable" to the accused.
On appeal, the NSW CCA unanimously set aside
those orders and said it was inconsistent with Dietrich for
trial judges to:
“embark upon a detailed exercise of assessing
the relative degrees of competence and experience potentially available to act
for an accused person.....the principle in Dietrich turns
upon whether legal representation is unavailable to an indigent accused....It
does not concern an accused person's supposed right to competent
counsel.....".[23]
In Victoria, this topic was dealt with in R v Beljajev[24], where His Honour Winneke, P
stated that
“.....in my opinion the court is empowered to
specify whatever conditions are relevant to the exercise of the power, whether
they be conditions imposed upon VLA or the accused.....It must, in my view, be
understood that the power invested in the Court by the section is a power to
order “the [VLA] to provide assistance to the accused. Such conditions as the
Court imposes must be relevant to the exercise of that power". It seems to be
that any condition which directs VLA to provide assistance through a particular
person and/or at a particular rate amounts, in truth, to an order that
assistance is to be provided by that person and not by VLA. In my opinion no
condition can be imposed by the Court which limits the capacity to VLA to
provide the assistance which the court has ordered it to
provide...."[25]
His Honour approves of the comments of the
Court in A.G (NSW) v Milat, where the NSW Court of Appeal
said:
There could, no doubt, be cases where the legal
aid being offered was so inadequate, or subject to such restrictive terms and
conditions, that it would be right to conclude that a person to who legal aid
was offered has been left relevantly unrepresented. But, when a stay application
is made in the present circumstances, there is a risk that a trial judged will
be drawn into a form of arbitration between lawyers and the Legal Aid
Commission.[26]
This point was picked up in the 1998
amendments, (which were drafted prior to the decision in Beljajev), in response to decisions, particularly in the Supreme
Court, where the Court had made specific orders as to number of counsel and
their fees in one case and the identity of the solicitor to be assigned the case
in another.
The section now specifically states at
s.360A(4)(e) (as introduced by the 1998 amendments), that the conditions that
may be specified by the court under sub-section (2) do not include conditions
relating to the identity, number or remuneration of persons representing the
accused.
A further matter that should be noted in the
current provision of s.360A is the right by VLA, as the prospective funding
body, to be heard on any such application. Further, there is provision for VLA
to appeal an order made under the section by a Supreme Court Judge. There is a
right to appeal against such orders if they are made by the County Court. It is
clearly desirable that, in appropriate cases, the funding body be able to appeal
against the decision that it provide assistance.
Before concluding, attention is drawn to the
relevant recommendations made by the Working Group on Criminal Trial Procedure,
Report September 1999. Recommendation 47 states:
“any response to the decision in
Dietrich
must be related to the common law concern to ensure a fair trial for
every defendant"
S.360A of the Victorian Crimes Act makes it a
criteria that a trial judge is to be satisfied of that matter in exercising
his/her discretion under that provision. On this point, reference is made to the
recent decision of R v Quoc Kinh Phung[27].
Brooking, JA, in the course of the leading judgement, stated:
“...in any event, s.360A does not impinge upon
the notion of a fair trial as laid down in Dietrich...."[28].
In that case, the Court in the course of
finding a miscarriage of justice in the conduct of a trial of an unrepresented
accused, reviewed the “triable issue" test which had been used by the County
Court in determining whether, in any given case, the court would be “unable to
ensure that the accused will receive a fair trial unless the accused is legally
represented at the trial...." The test had its origin in the case of
R
v Drljaca, where His Honour Chief Judge Waldron analysed s.360A and Dietrich and concluded that:
“there needs to be a triable issue for there to
be a requirement that the accused have representation in order to ensure a fair
trial. If an accused in truth has no defence but nevertheless simply wishes to
put the Crown to its proof in the hope rather than the expectation that the
proof will not prevail, it cannot in my view be said that the lack of
representation has caused the accused to “lose a chance which has fairly open to
him of being acquitted “or" to involve a risk of the accused being properly
convicted" or to result “in the court being unable to ensure that the accused
will receive a fair trial". Rather, such a case is an exceptional case as
contemplated in Dietrich".[29]
His Honour Brooking, JA, who delivered the
leading judgement, rejected that test:
“The trial test as laid down in
Drljaca
should be regarded as requiring the judge to consider whether the accused has
shown that at trial there will be some issue of fact or law which, if resolved
in favour of the accused, will result in acquittal, and that the issue is one on
which the accused has some prospect of acquittal, even though that prospect
should be small. So understood, the test does not seem to me, with all respect
to those who have thought otherwise, to lay down an acceptable condition of,
that is to say, the requisite to, the making of an order under s360A(2).
.......all that paragraph (a) of s.360(A)2) refers to is inability to ensure a
fair trial without legal representation" [30]
His Honour goes on to say:
“I accept that it is possible to conceive of a
case in which a judge might be able to say in advance that if it was fanciful to
suppose an accused might avoid conviction, so that legal representation could
not by any possibility affect the outcome of the trial and the absence of
representation would not make the trial unfair....such a case must be very
rare....Save in a most exceptional case, unlikely to be encountered in practice,
I do not think it can be said in advance that the Crown case is so strong that
legal representation may not affect the outcome of a trial.....Applications
under this section should be approached on the footing that in all but a most
exceptional case representation may possibly affect the result of a trial and
that it is not for the applicant to raise a triable issues but for the judge to
consider whether the presumption that a fair trial requires representation has
been displaced. This means asking affirmatively whether it appears that it is
fanciful to suppose that the accused might avoid conviction, bearing in mind the
difficult of reaching that conclusion at a preliminary stage as opposed to
considering the matter in light of an actual
trial".[31]
It may well be that there is, for all intents
and purposes, very little difference between s.360A and Dietrich
when all is said and done.
In summary, I would submit that the provisions
of legislation in the form of s.360A do not affect an accused's right to a fair
trial. Further, the decision as to indigence is a matter for the trial judge
about to deal with a matter, or preferably well before a matter is to proceed.
The matter can at that stage be dealt with by a judge of that court, as such
applications proceed in Victoria presently. The concerns of the funding body are
adequately addressed by the requirement on the court to take account of a series
of maters that they would have regard to in assessing eligibility for legal
assistance, together with the right of appearance and the right of appeal, as
provided for in the Victorian provision.
Currently the practice in Victorian courts is
that at the threshold test for the making of a s.360A application is that all
appeal avenues within Victoria Legal Aid are exhausted - s.360A(1). It is only
after that point has been reached is it that the court can be called upon to
decide on the issue of representation. In cases where assets are held by the
prosecution under the relevant confiscation provisions, there too the accused
should be required to exhaust all other avenues before being in a position to
seek a stay or a court order for assistance to be provided to them. In such
cases, consideration needs to be given to how those assets are expended on the
conduct of legal proceedings.
There is merit in the view adopted by the
Working Party on White Collar Crime Report[32]
that restrained
assets could be managed by the legal aid body, and expenditure on defence
controlled as if a grant of assistance existed. Currently there is a trial in
the County Court at Melbourne where Victoria Legal Aid has the responsibility of
handling the accused's restrained funds for the purposes of his defence. It is
the large white collar matters that pose the greatest threat to the limited
legal aid funds and it would seem appropriate that consideration be given to
ways of avoiding the situation that the cost of the trial be borne by the public
purse if there are innovative means of ensuring that funds are not squandered at
the preliminary hearing stage and the burden of the cost of the trial be in some
way lessened on the public purse. I do not wish to be taken as favouring any
departure from the requirement for a fair trial in such cases, only that lateral
thinking may be required for this particular problem.
In conclusion, I support recommendations 47 - 53 made by the Working Group on Criminal Trial Procedure, though I concede that
I have not dealt with them all in detail. My colleagues and I certainly support
a move toward uniformity in approach to this problem, in legislative form, along
the lines of the current provisions of S.360A of the Victoria Crimes
Act.
1
Dietrich v the Queen (1992) 177 CLR
292.
3
ibid at p315 per Mason C J and McHugh,
J.
5
Issues paper for Working party on White Collar
Crime Reform - p9.
6 Working Group on Criminal Trial Procedure - Report September, 1999, recommendation 48.
7
Reform of Pre-Trial Criminal Procedure
Principles - 27 August, 1998.
8
Unreported, Supreme Court, 23 June
1998.
10 (1995) 63 SA SR 451 @ 450.
11
(1995) 37 NSWLR 370 @ 380.
12
(1994) 33 NSWLR 575 @ 588.
16
100 A Crim R 367 @ 373.
17
Unreported, Supreme Court of Victoria, Court of
Appeal, 5/10/1998.
20 Victorian County Court, June 1997
- October
1998.
21 Unreported, Supreme Court of South Australia 22
May 1997.
27 Unreported, Supreme Court of Victoria, Court of
Appeal 1 December 1999.