Kyle McDonald

Sheerin v DPP (2021) 288 A Crim R 162; 95 MVR 291 -Driving Offences — Refusal of requirement to remain for purposes of providing sample of oral fluid for testing — Wording of charge — Whether charge defective for being ambiguous — Whether requirement to remain can be impliedly stated in charge

Johns v The Queen (2020) 92 MVR 160 - CRIMINAL LAW – Appeal – Conviction – Application for leave to appeal against conviction – Convicted for recklessly cause serious injury in circumstances of gross violence – Crimes Act 1958 s 15B – Whether verdict unsafe and unsatisfactory – Head on collision between applicant’s car and victim’s truck – Whether it was open to jury to find that applicant foresaw probable risk of serious injury to victim given marked disparity between size and weight of vehicles – Application for leave to appeal refused. CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Judge applied wrong test under Sentencing Act 1991 s 10A(2)(e) when considering whether ‘special reasons’ existed to justify imposing non-parole period of less than four years – Whether error constituted ‘error in the sentence’ for purpose of Sentencing Act 1991 s 281(a) – Whether error was ‘material’ and vitiated sentencing discretion – Kentwell v The Queen (2014) 252 CLR 601 considered – Whether inadequate order for concurrency – Whether sentence manifestly excessive – Application for leave to appeal granted – Appeal dismissed.

Makeham v Sheppard [2020] VSCA 242 - Appeal on a question of law from Magistrates’ Court — Applicant convicted of indecent act with a child under 16 — Adequacy of magistrate’s reasons — Magistrate’s failure to deal with character evidence and prior inconsistent statements — Whether primary judge erred in failing to find magistrate’s reasons to be inadequate — Whether conviction unsafe and unsatisfactory — Appeal allowed

Omerdic v Angland [2018] VSCA 320 - APPEALS – Applicant convicted in Magistrates’ Court of one charge of solemnising a marriage where there was reason to believe that there was a legal impediment to the marriage – Conviction upheld on appeal to the Trial Division – Video recording of part of ceremony – Whether open to infer that ceremony completed – Whether evidence of form of ceremony sufficient for the purpose of a valid marriage – Whether open to infer that applicant intended to solemnise a marriage rather than conduct ‘Nikah’ or religious blessing – Relevance of non-compliance with formal requirements of the Marriage Act – Adequacy of reasons for decision – Marriage Act 1961 (Cth) ss 5A, 11, 42, 45, s 48(2)(a), 50, 100 – Criminal Code Act 1995 (Cth) s 5.2(1) – Criminal Procedure Act 2009 (Vic) s 272 – Application for leave to appeal refused

Burgess v The Queen [2017] VSCA 59 - CRIMINAL LAW – SENTENCING – 83 year old applicant pleaded guilty to 10 charges of historical sexual offending – Applicant sentenced to 8 years’ and 6 months’ imprisonment with non-parole period of 6 years and 6 months’ imprisonment – Australian Bureau of Statistics data on life expectancy – Sentence not manifestly excessive – Application for leave refused

Singh v The Queen (2016) 260 A Crim R 216; (2016) 310 FLR 348 - (Written case by Nick Papas QC.) Dishonesty Offences — Money laundering — Fault elements — Dealing with money valued at $100,000 or more — No fault element as to amount involved — Criminal Code (Cth), ss 400.9, 400.10 Dishonesty Offences — Money laundering — Receiving money reasonably suspected of being proceeds of crime — Whether reasonable suspicion must be contemporaneous with receiving — Whether evidence of subsequent third party transaction admissible — Interpretation of timing of reasonable belief of value of dealing — Meaning of ‘at or before the time of dealing’ — Whether partial defence — Criminal Code (Cth), ss 400.9, 400.10

McGrath v The Queen [2015] VSCA 176 - CRIMINAL LAW – Appeal – Sentence – Cultivate commercial quantity of cannabis (8.5 CQ) – Sentence 2 years and 6 months – Whether manifestly excessive – Whether judge erred in failing to consider community correction order (CCO) – Principle of parsimony – Sentence imposed before publication of CCO guideline judgment in Boulton v The Queen [2014] VSCA 342 – Whether judge failed to apply correct principles – No error – Sentence within range – Leave to appeal refused – Sentencing Act 1991 s 5(3), 5(4), 5(4C), pt 3A.

Gianello v The Queen [2015] VSCA 205 - Criminal Law – Sentence – Appeal – 'White collar' offender – Multiple counts of dishonestly obtaining a financial advantage by deception – Parity – Whether principles of parity infringed – Whether judge erred in rejecting community correction order as an appropriate sentencing option – Serious offending – Community correction order not appropriate – Principles of parity not infringed – Appeal dismissed

Ahmet v Jardine [2014] VSCA 52 - PRACTICE AND PROCEDURE – Application for leave to appeal from order appointing litigation guardian – Supreme Court (General Civil Procedure) Rules 2005, Order 15 – Principles relating to appointment of litigation guardian – Whether substantial injustice if leave refused – whether sufficient doubt as to correctness to warrant leave PRACTICE AND PROCEDURE – Application to admit fresh evidence on appeal from interlocutory application – When fresh evidence will be admitted – Right to cross-examine in interlocutory applications

Ahmet v Chief Commissioner of Police [2014] VSCA 265 -PRACTICE AND PROCEDURE – Subpoena – Claim for public interest immunity – Production and inspection objected to – Balancing of claim for public interest immunity against the public interest in the administration of justice – Whether judge below erred in failing to inspect the documents

Ryan v State of Victoria [2014] VSCA 340 -EVIDENCE – Public interest immunity – Matters of state – Evidence Act 2008 ss 130, 131A. APPEAL – Application for leave to appeal – Sufficient doubt to justify the grant of leave to appeal

AB v The Queen (2013) 37 VR 88 - Practice and procedure — Suppression order — County Court — Sentencing remarks — Jointly-tried accused — Mitigation — Judge receiving material concerning co-accused’s co-operation with authorities — Limited non-publication order by trial judge — Access by other co-accused to transcript — Proper process not followed —Access obtained contrary to non-publication order —Application to be made in court on notice to other side—Ex parte communication with trial judge’s associate — Communication between party and the court must include all relevant parties — County Court Act 1958 (No 6230) s 80(1).

Edwards v The Queen [2013] VSCA 188 - CRIMINAL LAW – Leave to appeal against sentence – Use carriage service to transmit indecent communication to a person believed to be under 16 – Using carriage service to access child pornography – Use carriage service to make available child pornography – Possess child pornography – Total effective sentence of 17 months’ imprisonment – Non-parole period of five months purportedly fixed – Applicant to be released after serving five months’ imprisonment on a recognisance release order in the sum of $1,000 on the condition that he be of good behaviour for a period of three years – Not open to fix a non-parole period in respect of a sentence of less than 12 months’ imprisonment – Verdins principles – Sentence manifestly excessive – Serious sexual offender status – Leave granted – Appeal allowed – Total effective sentence of nine months’ imprisonment imposed – Applicant to be released on a recognisance release order in the sum of $500 on the condition that he be of good behaviour for a period of 12 months.

Aguirre (a pseudonym) v Nwigwe [2024] VCC 1832 -Application by victim for a compensation order – sexual assaults – compensation order made in favour of the applicant in the sum of $250,000

DPP v Tunescu [2024] VCC 1270 -Dangerous Driving Causing Death – Truck driver – Momentary Inattention – whether s 5(2H) is enlivened – Whether impaired mental functioning – whether substantial and compelling reasons that are exceptional and rare - low moral culpability – good prospects of rehabilitation – elderly offender – minor criminal history - significant and complex health challenges – remorseful – community protection and specific deterrence of negligible importance

DPP v Luk [2024] VCC 1183 -Discontinuance of indictable charges – summary related offences – careless driving – learner driver driving without a supervisor present – death – plea of guilty – youthful offender – good prospects for rehabilitation – post-traumatic stress disorder – significant remorse – non-conviction

DPP v Watts [2024] VCC 1120 -Obtain financial advantage by deception – Employment with Department of Education as School Principal – Employed on basis of falsified documents and false declarations on resume and job application – Serious offending – Early plea of guilty – Breach of trust – No criminal record – Community corrections order – Restitution order

DPP v Aboueid [2022] VCC 205 -Plea of guilty – Dangerous driving causing death – Degree of genuine remorse Victim not wearing seatbelt at the time of the collision – Delay – Youthful offender - COVID-19 pandemic.

DPP v EB Ocean Pty Ltd [2019] VCC 2072 - Plea of guilty – one charge of hindering compliance with the Biosecurity Act 2015 (Cth) – one charge of failing to carry out biosecurity activities in accordance with an approved arrangement – no prior criminal history – serious and deliberate offending – general deterrence – extra curial punishment.

DPP v Riak [2018] VCC 1439 - Sentence – Pleas of guilty – Conspiracy to dishonestly cause a loss to the Commonwealth – Childcare claims

Maher v Krumins (2022) 67 VR 40 -Appeal from Magistrates' Court on a question of law — Animal cruelty charges — Magistrate fined both appellants — Appellants disqualified from being in charge of animals for 10 years — Where Magistrate erred in making comparisons to different legislative scheme and referred to expectations regarding material that should have been provided by the appellant — Appeal allowed

Robinson v State of Victoria [2018] VSC 470 - PRACTICE AND PROCEDURE – Discovery – Whether redacted documents subject to public interest immunity – Whether release of documents would be injurious to public interest – Whether plaintiff should have access in the interest of fair administration of justice – Whether public interest outweighs desirability of documents being released – Police training, tactics, and equipment – Inspection of documents pursuant to Evidence Act 2008 (Vic) - State of Victoria v Brazel [2008] VSCA 37 - Ryan v State of Victoria [2015] VSCA 353 – Plaintiff granted access to document

Joseph v Worthington (2018) 272 A Crim R 292 - Procedure — Statute of limitation — Non-payment of long service leave — Time limits within which to lay charge — Whether a continuing offence — Long Service Leave Act 1992 (Vic), s 72(2) — Criminal Procedure Act 2009 (Vic), s 7.

DPP v Batikas [2018] VSC 61 - CRIMINAL LAW – Attempted Murder – Accused stabbed parents repeatedly – Consent mental impairment hearing before judge alone – Verdict recorded of not guilty because of mental impairment – Accused declared liable to supervision – Matter adjourned so that further report and certificate of available services might be obtained – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Blyss v Magistrates and Court of Victoria (2016) 261 A Crim R 518 - Sentence — Sexual offences — Sex offender registration order — Requirements for sex offender registration order — Wilful and obscene exposure — Consideration of merits — Sex Offenders Registration Act 2004 (Vic), ss 11, 34(4).

Koeleman v Nolan (2012) 220 A Crim R 563 - CRIMINAL LAW — Sentencing — Restitution order — Vehicle stolen but not recovered – Restitution order made requiring offender to transfer his own motor vehicle – Goods that directly or indirectly represent the stolen goods – Appeal allowed and order set aside – Sentencing Act 1991 s 84(1)(b)

Eagles v Densley [2012] VSC 355 COURTS AND JUDGES – Procedural fairness – Summary prosecution – Appeal to County Court – Knowingly possessing child pornography – Images contained on plaintiff’s DVD – DVD an exhibit – Contents of DVD not displayed in open court – County Court Judge viewing DVD in private chambers after hearing – Judge relying on way DVD was “configured” to convict plaintiff – Interpretation of Judge’s reasons – Whether Judge acted as investigator or prosecutor or created new evidence or denied plaintiff fair opportunity to be heard – No unfairness – Proceeding dismissed