“QUOTEWORTHY” 1988

1. “What is also noticeable in connection with the circumstances attendant upon the commission of the offences is that the participants’ own subjective assessment of the gravity of their actions and any revulsion that they might arouse seems to be coloured by an unfortunate confluence of precocity and promiscuity. The language in which they express themselves and the sexually active lives that they have lived from a very early age suggest the standard by which they would judge their conduct is probably to be measured by a noticeably different standard from that which would be applied by the majority of the community.” Per Crockett J, in R v Spring and Anor [1988] VicSC 35, Vic Sup Ct (FC), 9 February 1988.

2. “The sentencing Judge is always entitled to discriminate between offenders; not everyone gets exactly the same sentence. It must depend upon all the circumstances, and the Judge thought a very significant circumstance in this case was the fact that Munn was much younger, and I am sure you would agree that a younger man is much more likely to be influenced by an older man, because an older man is supposed to have learnt some sense by the time he has got older. It has taken you a long time, having regard to your past record.” Per Young CJ, in R v Sleep [1988] VicSC 24, Vic Sup Ct (FC), 4 February 1988.

3. “Contests between downstream land users over access to water rights are as old as civilisation and gave rise to the wars between upper and lower Egypt, between the civilisations on the Tigris and Euphrates. A modern counterpart is found in the conflict over the waters from Lake Kinneret, which is sometimes known as the Galilee. This case is but a variant, although of an inconsequential kind. The time has long since passed when land owners can claim an unfettered right to interrupt the flow of natural water courses. It was never unfettered in this country, either in Colonial or in Federation times, and there is no such right today.” Per Nathan J, in Rural Water Commission of Victoria v Colli [1987] VicSC 506, Vic Sup Ct, 12 November 1987.

4. “Legal maxims, said Salmond, are the proverbs of the law, with the same merits and defects as other proverbs, being brief and pithy statements of partial truths: Jurisprudence, 10th ed, p498). Lord Esher disliked them:
‘They are almost invariably misleading: they are for the most part so large and general in their language that they always include something which really is not intended to be included in them.’: Yarmouth v France (1887) 19 QBD 647 at p653; 57 LJQB 7; 36 WB 281; 17 Rul Cas 217; 36 WR 281.
Sir Frederick Pollock Jurisprudence, 6th ed, pp235-6) similarly emphasised in the limitations of the maxim:
‘A maxim is a phrase embodying some legal idea of common application in a concise and portable form. It is a symbol or vehicle of the law, so far as it goes; it is not the law itself, still less the whole of the law, even on its own ground. One of the commonest mistakes of beginners and laymen is to take a maxim for an authentic and complete expression of the law, and go about to deduce consequences from its words as if it were a modern Act of Parliament.'”
Per Brooking J in GIO (NSW) v KA Reed Services Pty Ltd and Ors [1988] VicRp 75; [1988] VR 829, Vic Sup Ct (FC), 30 November 1987.

5. “Through no fault of Mr Moshinsky, the initial copy of that judgment that he was able to obtain was illegible, being a particularly poor example of a document which is known at the bar as a “purple gutser”; however, a legible copy was obtained and counsel for both parties took the opportunity of submitting to me written submissions.” Per Phillips J, in Cako v The Magistrates’ Court at Melbourne and Anor [1987] VicSC 483, Vic Sup Ct, 2 November 1987.

6. “Asbestos was once regarded as a wonder mineral. Its property of flexibility rendered it useful in textile industries; its high melting point rendered it useful in heat insulation. It is a silicate. It is capable of cleaving very readily in a direction parallel to the long axis of the crystal, resulting in long, needle-like fibres. But those fibres have a terrible potential. Upon human inhalation they lodge in and attack the body. Ultimately they are deadly.” Per Cummins J, in Kelly v Dowell Australia Ltd [1988] VicSC 222, Vic Sup Ct, 17 May 1988 allowing the Plaintiff $126,909 for special damages.

7. “If the matter did not contain such serious considerations as on the one hand the alleged oppression of the small property owner by blocking off a roadway and the alleged defiance of the law on the other, the scenario is one worthy of an AP Herbert.” Per Murphy J, in Shire of Swan Hill v Carty [1988] VicSC 276,  Vic Sup Ct, 9 June 1988.

8. “The course that you followed to procure the money I think rendered the robbery perhaps the most gentle form of robbery of which the Court has ever been aware. Having been detected, you immediately made a clean breast of it, you pleaded guilty, and all but $150 of the money taken was immediately recovered. $150 had been spent on clothing, which you seemed very necessarily to need at the time, and which you have told us you are still wearing.” Per Crockett, ACJ, in R v Stanley [1988] VicSC 317, Vic Sup Ct (FC), 24 June 1988.

9. “This Court has made it clear over recent years that persons detected in the business of trafficking in heroin can expect little mercy from the Courts. Offenders play for high stakes. Such offences cause very considerable misery within the community. Persons detected in such offences who may be regarded as key figures in the drug industry deserve condign punishment. In our opinion, the sentence imposed is not manifestly excessive and the application must fail.” Per Full Court in R v Clune [1989] VicRp 52; [1989] VR 567, Vic Sup Ct, 27 June 1988.

10. “[The Drugs, Poisons and Controlled Substances Act] merely translates into statutory form the common-sense conclusion that significant quantities of the commodity are not stored for private use, but indicate commercial trade. For example, if a householder were to be found in possession of three tonnes of refined sugar, which is about the same value as the seized cannabis in this case, the compelling inference would be that the householder was trafficking in refined sugar.” Per Nathan J, in R v Allaway [1988] VicSC 298, Vic Sup Ct, 21 June 1988.

11. “I repeat that in deciding this case the court must experience, as I certainly do, a feeling of inadequacy in the quality of justice that it is dispensing because of the unavailability of any transcripts of the proceedings before the learned trial judge. This is not because facilities are not available. It is because they are not made available to the County Court.” Per Murphy J, in SIO v Nestle Aust Ltd and Anor, infra, 16 June 1988.

12. “As it is certain that appeals to this Court must proliferate with new tribunals being established, and the jurisdiction of the County Court being substantially increased, it is imperative in the interests of justice that the make-do methods of the past century are discarded and the modern technologies of transcription universally established, at least in our County Courts.” Per Murphy J, in SIO v Nestle Aust Ltd & Anor, unrep, Vic Sup Ct, 16 June 1988.

13. “It can no longer be doubted that there is a duty upon any Judge or Magistrate of any court from which an appeal lies to adequately record the evidence given before him. If authority is required for such an obvious proposition, I refer to the following remarks of Sir Frederick Jordan in Carlson v King (1947) 64 WN (NSW) 65 at p66. His Honour there said:

“It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent, not only upon Magistrates and District Courts but also upon this court, from which an appeal lies to the High Court and the Privy Council.”

As the learned Chief Justice makes clear, one reason for the existence of the duty is to enable an appellate Court to examine the record of the proceedings below in order to determine whether an error has been demonstrated. It can be accepted that there is some difficulty in keeping an adequate longhand record of the evidence given in a trial where no transcript is provided. No doubt it will sometimes be necessary for the Judge to hold up proceedings from time to time to ensure that his note is adequate.” Per Gray J, in Cook v Blackburn [1989] VicRp 4; [1989] VR 35, 26 May 1988, Vic Sup Ct, (FC).

14. “John, when cross-examined on the question whether he had not made full disclosure for taxation purposes of his earnings in the fish shop business, was virtually destroyed on this point. I have no doubt that he was not including all cash takings in the takings book, and that in the witness box he dishonestly denied this. But how often does one see in court an otherwise honest citizen tell lies about taxation matters? It is as if they have an underlying belief that the system is unfair, that the rich get away with it and they should be allowed their little bit of cheating. Of course if a witness tells lies in the witness box, his credit is seriously affected, but it does not follow, as we are so often required to remind juries, that the whole of their evidence must be rejected. On the whole, I regarded John as a witness of truth.” Per Southwell J in Re Gleeson, unrep, Vic Sup Ct, 2 June 1988.

15. “The learned Judge heard a plea by counsel on the respondent’s behalf, from which it emerged that in addition to having become, to a considerable extent, a professional criminal, he was a man of marked intelligence. That fact perhaps leads to a necessity to mark his offences with condign punishment. A person of his intelligence and ability who has, as it were, declared war on society, cannot expect leniency from the courts.” per Young CJ, in R v Watson [1985] VicSC 483, Vic Sup Ct, (CCA), 3 October 1988.

16. “The offences which the applicant committed are offences which go to the heart of the freedom of the individual to move in our society. The rape and the allied offences and the robbery of the ladies in the street are frightening offences which detract from the free movement of people, but particularly females, in the community at large and they strike fear into the minds of the victims and affect their feeling of security in the future. They are crimes which it must be the responsibility of the Court to punish, having regard to these matters, and the learned sentencing Judge bore these considerations in mind. He correctly considered, in my view, that the victims of the crimes had been frightened and scared and shaken and that, accordingly, as I say, the community looks to the Court to punish those such as the applicant who bring terror into the lives of such innocent people.” per Murphy J, in R v Gates [1988] VicSC 483, Vic Sup Ct, (CCA), 16 September 1988.