In re a railway accident at Kerang

In re a railway accident at Kerang (Coroners Court of Victoria, Coroner Hendtlass, 21 October 2013, reported in Shepparton News, 22 October 2013 at p. 13 and Weekly Times, 23 October 2013 at p. 13)

Hat-tip to journalist Chris McLennan whose report provided material for this casenote.


On 5 June 2007 a truck collided with a passenger train near the Victorian town of Kerang, causing the deaths of 11 passengers and seriously injuring another eight. At his subsequent criminal trial, the truck driver gave evidence that he had not seen the crossing warning lights flash and believed it was safe for him to cross (1).


The accident was the subject of investigation by the Coroner. In the course of her investigation, Her Honour also considered 15 other deaths at rail crossings occurring between 2002 and 2009.


The Coroner’s report noted that of the accidents considered, two drivers saw the train too late to stop, and ten neither saw nor heard the level crossing lights or sounds nor the train itself. She observed that the horns fixed to trains were designed for warning pedestrians rather than drivers.

Interestingly, weather and road design appear to have little influence on these accidents, with over 80% of accidents in rural areas occurring in clear weather and on a straight road.

A finding which may interest plaintiff lawyers is the observation that the fitting of anti-lock brakes to the driver’s truck may have contributed to the accident: while the Coroner could not state that the truck would have stopped before the collision had it not been fitted with anti-lock brakes, she was “confident the force of the collision would have been reduced and the consequences less severe”.


(1) The driver was charged with 11 counts of culpable driving and acquitted: R v Christian Scholl (Supreme Court of Victoria, jury trial, 2009, unreported)

Australian Competition and Consumer Comm’n v Baiada Poultry

Australian Competition and Consumer Commission v Baiada Poultry & Ors (Federal Court of Australia, Tracey J, 2013, reported in Country News, 4 November 2013 at p. 7)


Two corporations, Baiada Poultry and Bartter Enterprises, producers of chickens for meat, made public claims in connection with the sale of their birds that their chickens were free to roam in large barns. The body representing their industry – the Australian Chicken Meat Federation – repeated this claim on its website in relation to the entire industry.

The Australian Competition and Consumer Commission (ACCC) brought proceedings against the two corporations and the Federation alleging that they had engaged in conduct which was false, misleading and deceptive, or likely to mislead or deceive.


The Court found that up to the 42nd day of a growth cycle which could be up to 56 days, the corporations’ chickens were kept at densities which meant they lacked “a largely uninhibited ability to move around at will in an aimless manner”.


The corporations were ordered to pay fines totaling $400,000.00.

The Federation’s wrongful conduct was noted to relate only to the gap between its claims and the reality at the facilities operated by the corporations (as well as a facility operated be a defendant in another proceeding). The Federation was ordered to pay a fine of $20,000.00, notify its members of the outcome, and have its staff attend training in trade practices compliance.

Howie v Lawrence [2013] VSC 616 (Supreme Court of Victoria, Mukhtar AsJ, 1 November 2013)

Howie v Lawrence [2013] VSC 616 (Supreme Court of Victoria, Mukhtar AsJ, 1 November 2013)


The Uniting Church in Australia was formed in 1977 from the union of the Presbyterian, Methodist and Congregationalist Churches. The forming of the church was recognized in statute by The Uniting Church in Australia Act 1977. The statute created a property trust which held the church’s assets. The Church itself was the beneficiary of the trust.

In recent years the church has experienced a long term decline with concomitant impacts on its financial stability. In addition, certain of the Church’s operations had financially failed generating significant debt. In May 2013 the Church’s Synod for Victoria and Tasmania (which included the Synod Property Trust, which held legal title to the church’s property), resolved to consider sales of certain church properties. It was also resolved that that decisions concerning sale of land would be made after discussions with the communities affected.

On 9 October 2013, the general secretary of the Synod’s Committee announced that a number of church properties would be sold, including St Stephen’s Church at Williamstown along with the associated hall and residence.


An application by a member of the St Stephen’s Church congregation (Kenneth Howie) sought judicial review of the decision to sell the premises under the Administrative Law Act 1978. He was accepted as having standing to make the application, being a person “whose interest…is…affected…to a substantial degree by a decision which has been made…”


In His Honour’s assessment, the critical question was whether the Synod’s committee was legally required by law to observe the rules of natural justice. While the Court accepted that neither the Uniting Church or its Synod were public bodes or a statutory authorities performing a statutory function, he considered it important that the church had both a statutory origin and statutory recognition. It was observed that the acts of an entity can be subject to judicial review even if they are not created by government or invested with statutory powers (for example, regulatory bodies recognised by statute, or having a ‘statutory linkage’ or performing a public function with government). The Court considered that there was a public element where the Church had a statutory origin or recognition. It noted that a public element can take a range of forms and that power is ‘public’ particularly if decisions carry significant weight.

Although the statutory basis of the church did not make it a public authority, it gave it a statutory and ‘public’ quality which meant it should “be accountable to the norms and values of public law including the requirements of natural justice”. However, it was not stated that religion was the business of government or that all of the Church’s activities would be subject to judicial review.


His Honour considered that the Church’s committee had not shown cause why their decision should not be reviewed by the Court. The matter will now proceed through the process of judicial review.


A number of Australian churches and religious bodies have a statutory foundation, sometimes based on legislation dating from the early colonial period (one such Act dates from 1838), including the Brotherhood of St Laurence, the Church of Christ, Scientist, the Church of Scotland, the Church of England, the Hungarian Reformed Church, the Roman Catholic Church in respect of property matters, the Sisters of Mercy in respect of at least one parcel of land, the Church of Christ in connection with property, the Baptist Church, the YWCA and possibly the Wesleyan and certain other older denominations. Notwithstanding the court’s refusal to inject judicial review into all aspects of church life, it may be interesting over time to consider whether statutorily founded churches and bodies may find that determinations which have affect congregations (for example, decisions as to doctrine which result in schisms) may ultimately be susceptible to review in the courts. Even more intriguingly, a person seeking to claim damages from a church may be able to call into question the validity of decisions to establish church structures or property arrangements which affect that persons prospects of recovering compensation.

Douglas Muir v Gayle Lesley Manginelli

Douglas Muir v Gayle Lesley Manginelli (Supreme Court of Victoria, 10 September 2013, reported in Country News, 16 September 2013 at p. 7)


In November 2007, Deborah Muir (the wife of the plaintiff) attended a horse property operated by the defendant. An incident occurred when the defendant was leading her thoroughbred on a long lead towards a dam. Mrs Muir was riding her own horse in the vicinity. As the defendant’s horse passed Mrs Muir’s horse, it kicked backwards, hitting Mrs Muir in the chest and causing fatal injuries.


The plaintiff sought damages for the mental harm caused to him by his wife’s death, including for consequential loss of earnings. It was asserted that the defendant’s horse had in the past tried to kick other horses and should have been under better control, including being on a short lead.


The proceeding was compromised on the second day of the trial after the evidence of the first witness. The terms of the settlement were confidential.

R v William John Lovel

R v William John Lovel (Supreme Court of Victoria, Hollingworth J, 16 October 2013, reported in Shepparton News, 22 October 2013 at p. 1 and Campaspe News, 22 October 2013 at pp. 1 and 3)

Hat-tip to journalists Riahn Smith and Elaine Cooney whose reports provided material for this casenote.


On 1 October 2012 the defendant attended a function at the Tatura Hotel. While there he became involved in an altercation with Terence Keenan. In the altercation he punched Mr Keenan, who was rendered unconscious and died thirteen days later without regaining consciousness.

Mr Lovel was charged with manslaughter by an unlawful and dangerous act as a result of the incident.


The matter was heard before Hollingworth J and a jury of five men and seven women in the Supreme Court at Shepparton. Mr Lovel pleaded not guilty to manslaughter.

The Crown alleged that the deceased was struck in an act of anger and retaliation and pointed to alleged inconsistencies in the histories given by the accused. The evidence of two lay witnesses was that the deceased had brought his fist back as if to prepare to hit the defendant, who was however able to punch first. On this basis the counsel for the defendant argued that his action had been in self defence and were therefore lawful.


After deliberating for a little under three hours, the jury acquitted Mr Lovel of manslaughter.

Darryl Tate v State of Louisiana (La., 5 Nov 2013)

Darryl Tate v State of Louisiana (Supreme Court of Louisiana, 5 November 2013, reported in The Advocate (Baton Rouge, La.), 6 November 2013)

Hat-tip to journalist Claire Galofaro whose exceptionally detailed report provided material for this casenote.


At age 17, Darryl Tate (applicant), shot a man in the course of a robbery, causing fatal injuries. In 1981, he pleaded guilty in Louisiana to second degree murder and was sentenced to a mandatory sentence of life without possibility of parole.

Legal Framework

In 2012, the Supreme Court of the United States found (in Miller v Alabama) that mandatory sentences of life without parole for offenders aged under 18 represented a cruel and unusual punishment and were therefore unconstitutional. It was held that a criminal court must required to consider the offender’s background, moral comprehension and rehabilitation prospects, although a sentence of life without parole might remain a permissible sentence after considering those factors.

The decision did not make clear whether Miller v Alabama required sentences already passed to be revisited. Courts in Missisippi, New Hampshire, Iowa and Illinois have considered that such sentences must be re-opened. The opposite view was taken by courts in Florida, Michigan, Minnesota and Pennsylvania. No consensus has emerged from the Federal circuit courts.

Procedural History

The applicant initially sought review of his sentence from the Orleans Parish Criminal District Court. His application was rejected and he appealed to Louisiana’s Fourth Circuit Court of Appeal. The appellate Court considered Miller’s Case to be retrospective and ordered that the applicant be re-sentenced.

The State appealed to the Supreme Court of Louisiana.


The Court found that Miller’s Case is not retrospective. It considered that the law requires a decision be treated retrospectively only where a substantive issue is involved (for example, the prohibition of the death penalty for infants). On its assessment, the change to the law was procedural: life imprisonment remains permissible but only the processes required before imposing such a term have changed. Hence, it was not retrospective.


The state’s appeal was upheld and Tate’s original sentence confirmed.


A dissenting judgment was entered by Johnson CJ and Hughes J.

Tate has the option of appealing to the Federal courts.

Victoria Police v Samuel Carroll

Victoria Police v Samuel Carroll (Shepparton Magistrates Court, Magistrate Smith, 4 November 2013, reported in Shepparton News, 5 November 2013 at p. 7)

An interesting matter relating to bail was dealt with by the Shepparton Magistrates Court on 4 November.

Hat-tip to journalist Darren Linton whose report provided material for this casenote.


The defendant is charged with armed robbery, allegedly committed on 28 October 2013. He was released on bail, subject to (inter alia) a condition that he not drink alcohol. After his release, he was found to have been drinking and his bail was reviewed.


The defendant’s solicitor advised the court that the defendant is an alcoholic and no longer had an address to which he could be bailed. There were no readily available detoxification facilities to which he could be sent.


His Honour considered that the defendant should be remanded –

“for seven days while he’s detoxing. I know that it is much harder in custody than in a hospital [but] I’m not prepared to release him when he’s in the throws [sic] of cravings”

The defendant was remanded to appear again on 11 November 2013.


No actual application for bail was made by the defendant. However, the Court’s observations raise the interesting issue of whether a court should exercise a kind of parens patriae jurisdiction in these matters, by providing a person with a structured setting (admittedly, gaol) rather than bail them under conditions where a breach of bail – and by extension, a worsening of their position – might be almost inevitable.