Last Updated 1 July 2020
24 July 2020
Apologies for the fact that this website has been down for a week or so due to my moving the website away Telstra Digital Marketing Services, who I do not recommend.
1 July 2020
Today the Evidence Amendment (Tendency and Coincidence) Act comes into force. It furthers lowers the requirements for the admission of tendency and coincidence evidence under the Evidence Act.
4 December 2019
Today the High Court handed down its decision in State of NSW v Robinson  HCA 46. The Court held that the power to arrest a person under s. 99 of the LEPRA Act can only be for the purpose of bringing that person before a magistrate or justice to answer a charge and to be dealt with according to law. An arrest by a police officer who does not have an intention to charge the person is unlawful. This case will be incorporated into the text of the website soon.
9 September 2019
A podcast for lawyers is now online, produced by Felicity Graham, Stephen Lawrence, and John Kerkyasharian. It is available at https://podcasts.apple.com/au/podcast/the-wigs/id1478979953
2 September 2019
Two different interpretations of the effect of s. 66 Crimes (Sentencing Procedure) Act have been handed down by the CCA. The first of these was handed down on 22 August 2019. In Regina v Fangaloka  NSWCCA 173, Basten JA (with whom Price and Johnson JJ agreed) suggested that it meant that an intensive correction order could only be made if there sentencing judge assessed that such an order was more likely to address the offender's risk of reoffending than full time imprisonment (at para ).
However, on 29 August 2019 a judgement in Casella v Regina  NSWCCA 201 was handed down. In that case Beech-Jones J (with whom Bathurst CJ and N Adams J agreed) said that it is not necessary for a sentencing judge to affirmatively find that an ICO will more likely address the risk of the offender reoffending (at para ).
21 March 2019
Yesterday the High Court handed down its decision in DPP Reference (No. 1 of 2017)  HCA 9. In that case the High Court held a trial judge should not give a 'Prasad' direction (The Queen v Prasad (1979) 2 A Crim R 45) at the end of the Crown case, that is, a direction to the jury that it may return a verdict at any time, without hearing the defence case, addresses or the summing up.
6 February 2019
Alissa Moen has drawn my attention to a recent case about whether cross-examining a complainant in a sexual assault case about prior false complaints of sexual assult made by the complainant comes under the prohibition on cross-examing or adducing evidence on such material falls foul of the prohibition on cross-examining or adducing evidence about the complainant's sexual history: s. 293 Criminal Procedure Act. There is clear authority that such cross-examination, or introducing such evidence, is in breach of the general prohibition: see for example M (1993) 67 A Crim R 349.
However, in Adams v Regina  NSWCCA 303, it was held that previous false complaints of sexual assault may fall under an exception to the general rule under s. 293 (4) (a) Criminal Procedure Act as part of a 'connected set of circumstances' at or about the time of the alleged offence.
1 January 2019
My apologies for a long hiatus in being able to update this website, due to a combination of ill-health, trials out of Sydney, and the infuriating decision of someone at Austlii to change the urls of every High Court case, making it necessary to manually edit each reference to a High Court case in this website. Hopefully the website is now pretty up to date.
What follows is intended to be a review of some of the important changes in 2018.
On 5 February 2018 a 5 judge bench of the Court of Criminal Appeal handed down its judgment in the case of Regina v Xiao  NSWCCA 4 which overturned the line of authority which said that in sentencing for Commonwelath matters, the courts could not discount a sentence for the utilitarian value of a plea of guilty.
On 30 April 2018 the process of having an independent judicial officer (namely, a magistrate in a committal) determine whether or not there was sufficient evidence for an accused to be put on trial for an indictable offence was drastically changed to pass that responsibility to officers of the DPP. A system of compulsory case conferences was instituted in order to encourage the prosecution and the defence to resolve matters at an early stage. Those changes have been incorporated into the 'committals' section of this web-site.
On the same day changes Division 1A of the Crimes (Sentencing Procedures) Act came into force, setting out fixed discounts for the utilitarian value of a plea depending when the plea is entered, ranging from 25% in the Local Court to 5% after 14 days before trial. Those changes have been incorporated into the chapter on 'Sentencing'..
On 12 September 2018 the High Court handed down its decision in The Queen v Bauer (A Pseudonym)  HCA 40. That decision has profound consequences in relation to tendency evidence. In particular, the High Court has held that in a case where there are multiple allegations by a particular complainant, those allegations should ordinarily be heard together, without the need to demonstrate that there was a special, particular or unusual feature common to to them (at para ).
The Queen v Bauer (A Pseudonym)  HCA 40 has also made it clear that in sexual assault cases, representations about sexual assaults alleged to have occurred years before may still be regarded as 'fresh in the memory' and therefore admissible under s.66 Evidence Act (at para ).
On 24 September 2018 a number of changes to the Crimes (Sentencing Procedures) Act came into force to changing the sentencing options available to the courts, including the abolition of suspended sentences and home detention.
On 2 November 2018 the Criminal Procedure Amendment (Pre-trial Disclosure) Act (2018) amending s. 143 Criminal Procedure Act so as to increase the defence obligations for pre-trial disclosure. In particular, expert reports to be relied on by the defence are now required to be served. It is important to note that this requirement only applies in cases where the indictment is filed or presented after 2 November 2018.
20 November 2017
My attention has been drawn to the decision of the CCA in Robertson v Regina  NSWCCA 205. In that case the CCA considered a well-known earlier decision of the Court, Regina v Clark (NSW CCA unreported 15/3/1990) in which the Court said that where an offender had engaged in the trafficking of drugs 'to any substantial degree', in the absence of 'exceptional circumstances', a sentence of full-time imprisonment was required. This decision was followed many times.
However in Robertson v Regina  NSWCCA 205 the CCA unanimously expressed doubts as to whether this prescriptive approach was good law. In Regina v Parente  NSWCCA 284 a 5 judge bench of the Court of Criminal Appeal held that the 'principle' that drug trafficking 'in any substantial degree' should normally lead to a full-time custodial sentence in the absence of exceptional circumstances should no longer be applied (esp at para ).
27 June 2017
My attention has been draw to the decision of the High Court in Smith v The Queen; The Queen v Afford  HCA 19, in which the majority of the High Court held gave suggested jury directions in a drug importation case (at para ). The directions are set out in the Criminal Law section.
15 June 2017
Yesterday the High Court handed down its decision in Hughes v The Queen  HCA 20. This case was a conviction appeal by a television actor who appeared in a television comedy, 'Hey Dad'. By the narrowest of majorities, the appeal was dismissed (per Kiefel CJ, Bell, Deane and Edelman JJ; contra Gageler, Nettle and Gordon JJ.). The majority approved the approach of the NSW CCA that it was not always necessary that evidence of other incidents tendered as tendency evidence in relation to the charge in question bear similarity to the charge in question, depending on the issues in the trial. Thus if the issue is identification of the accused as the offender, a high degree of similarity may be required, but not where the issue is whether the offence was committed at all (at para  to ).
24 August 2016
Today the High Court handed down its decision in Miller v The Queen  HCA 30. Although the appeals were allowed, the High Court by majority (Gageler J dissenting) rejected an argument that the line of authority as to liability on the basis of common purpose (or extended joint criminal enterprise), which in cases such as Johns v The Queen (1980) 143 CLR 108, stated that that contemplation of the possibility of the commission of a criminal act, not part of the agreed criminal enterprise, rendered defendants who did not commit the incidental criminal act guilty of that incidental criminal act (typically, murder in a robbery case) should be overturned and that the English decision of Regina v Jogee [2016 UKSC 8,  UKPC 7 should be followed. In my respectful opinion, the dissenting judgment on this issue of Gageler J is a persuasive one and should have been followed.
18 April 2016
Last week the High Court handed down its decision in IMM v The Queen  HCA 14, a case relating to the admissability of tendency evidence. The High Court has followed the approach towards the assessment of the probative value of evidence in determining whether or not evidence is admissible under s. 97 Evidence Act which was adopted by the NSW CCA in Regina v Shamouil (2006) 66 NSWLR 228, rather than the approach taken by the Victorian Court of Appeal in Dupas v The Queen  VSCA 328. That is, the trial judge does not take into account questions of reliability and credibility in determining the potential probative value of the evidence. The High Court refrained from deciding whether or not the rule in Hoch (1988) 165 CLR 292 that tendency/coincidence evidence was not admissible if there is a reasonable possibility of concoction in making a ruling under s. 101 Evidence Act.
My attention has also been drawn to the decision of Privy Council and the UK Supreme Court of Regina v Jogee [2016 UKSC 8,  UKPC 7 which was handed down in February 2016. In that case the court departed from the line of cases about extended common purpose (followed in Australia in cases such as Johns v The Queen (1980) 143 CLR 108) to the effect that an accessory before the fact and a principal in the second degree are liable for a crime within the contemplation of both of them as a possible incident of the originally planned venture. In Jogee the court held that for a principal in the secondar degree, or an accessory before the fact, the Crown had to prove that the accused encouraged or assisted the commission of the offence by the principal offender, and that the accused intended to assist or encourage the commission of the crime charge, and that this requires the knowledge of any facts necessary for it to be criminal.
18 February 2016
Regrettably because of the decision of a no doubt well meaning IT person in the Supreme Court, the system of assigining urls to cases was overhauled leading to a very large number of broken links of the site. My very clever and hard working son James Stratton has spent many hours checking each of the links on the website and hopefully they are now no longer broken.
8 November 2015
Apologies, loyal readers, for the absence of updates to this site, caused by overwork and a series of medical problems which have seen me in and out of hospital on multiple occasions this year.
In late 2014 in Jones v Regina  NSWCCA 280 esp at para  the Court of Criminal Appeal said (arguably in obiter dicta) that Hoch v The Queen (1988) 165 CLR 29 no longer applied after the Evidence Act and the fact that there was a reasonable possibility of concoction between complainants did not render tendency/co-incidence evidence inadmissible. This decision or a case where this principle is applied is likely to be the subject of an appeal to the High Court.
On 31 March 2015 the the NSW Court of Criminal Appeal decided Sio v Regina  NSWCCA 42 which upheld the admission of an inculpatory record of interview by a co-offender who refused to be sworn or to take the affirmation at a trial of an alleged co-offender.
On 20 April 2015 the NSW Court of Criminal Appeal held that a 'consciousness of guilt' direction on lies is only required if it is necessary to ensure a fair trial: Gall v Regina  NSWCCA 69 esp at para .
On 27 May 2015 the NSW Court of Criminal Appeal held that in sexual assault cases (but arguably not other cases), the effect of s. 294AA of the Criminal Procedure Act is that a 'Murray direction' should no longer be given: Ewen v Regina  NSWCCA 117 esp at para . The 'Murray direction' was a direction that if the sole witness supporting the Crown case is the complainant the jury should consider the evidence of the complainant with great care (Murray (1987) 11 NSWLR 12).
The fact that the accused elects to be tried by judge alone is a relevant factor in determining whether or not a judge alone trial would be in the interests of justice: Regina v Simmons and Moore (No. 4)  NSWSC 259, approved in Redman v Regina  NSWCCA 110 at para . There is no consensus in the cases that where there are issues of credibility that factor militates strongly in favour of a jury trial: Regina v Simmons and Moore (No. 4)  NSWSC 259 at para , approved by the NSW Court of Criminal Appeal in Redman v Regina  NSWCCA 110 at para . In Redman the Court of Criminal Appeal held that it was an error of law to reject an application for a judge alone trial on the basis of an assumption that a jury was a superior tribunal of fact in a word against word case (at para ).
14 August 2014
Yesterday the High Court allowed an appeal in a case where evidence of Professor Henneberg of anatomical similarity between the appellant and the offender in a robbery who was filmed on CCTV was held to have been wrongly admitted: Honeysett v The Queen  HCA 29. Hopefully this case will mark the end of reliance of the prosecution on the pseudo-science of 'body mapping'.
15 June 2014
On 13 June 2014 the Crimes Amendment (Provocation) Act came into force, amending s. 23 Crimes Act. It limits the defence of provocation to cases where there is 'extreme provocation', and excludes the defence where the provocation relied upon is a non-violent sexual advance to the accused, and where the accused incited the violence in order to provide an excuse to use violence against the deceased.
20 May 2014
The Bail Act (2013) came into force today. The chapter dealing with bail will be updated as soon as possible (now updated)
3 October 2013
Yesterday the High Court decided the case of Bugmy v The Queen  HCA 37 which rejected the finding of the Court of Criminal Appeal that the principles of sentencing of Aboriginal offenders set out in Fernando (1992) 76 A Crim R 58 lost much of their force over time and where the offender had a long criminal record. The relevant parts of the sentencing section will be amended as soon as possible to reflect this decision.
4 September 2013
On 1 September 2013 two important pieces of legislation came into force.
Most importantly, the Evidence Amendment (Evidence of Silence) Act 2013 came into force. It states that where an accused charged with a serious indictable offence, has been given a 'special caution' (namely 'you do not have to do or say anything, but it may harm your defence if you do not mention something later relied upon in court, but anything you say or do may be used in evidence', or words to that effect), and that caution was given in the presence of an Australian legal practitioner who was acting for the accused, and the accused has been allowed a reasonable opportunity to consult with the legal practitioner, the jury may be directed that the jury is entitled to draw such inferences as the jury thinks fit about the failure of the accused to mention a fact relied on by the defence, which the accused might reasonably have been expected to refer to.
The effect of this amendment will be worked out over time. However, one thing is very clear. It will never be in the interests of the accused for a lawyer to attend a police station with a suspect who is about to be interviewed about a serious criminal offence. You might want to give the accused advice over the phone either to speak or not to speak to the police (no longer a simple question) but attending the police station may invite a direction adverse to your client.
1 July 2013
The Road Transport Act (2013), which consolidates the various pieces of legislation relating to traffic law, commenced today. The changes relating to traffic offences will be incorporated into the web-site as soon as possible.
29 May 2013
Last week the NSW Court of Criminal Appeal handed down a decision of a 5 judge bench in the case of Regina v XY  NSWCCA 121. It considered a challenge to the NSW interpretation of the interpretation of s. 137 Evidence Act. This provision gives judges the power to refuse to admit evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the defendant. As discussed in the last update (20 March 2013), in NSW it has been held that the credibility or reliability of the tendered evidence will rarely be relevant: Regina v Shamouil (2006) 66 NSWLR 228. The opposite approach was taken by the Victorian Court of Appeal in Dupas v The Queen  VSCA 328. In Regina v XY, the NSW Court of Criminal Appeal appears to have unanimously rejected a challenge to Regina v Shamouil (2006) 66 NSWLR 228.
20 March 2013
Last week the government introduced into Parliament the Evidence Amendment (Evidence of Silence) Bill 2013, which will , if passed, amend the Evidence Act so that if an accused exercised exercises his or her right to silence, an adverse inference may be drawn against the accused. The government also introduced the Criminal Procedure Amendment (Mandatory Pre-trial Defence Disclosure) Bill 2013 will if passed require the defence to disclose (amongst other things) the nature of the defence case and to disclose any expert reports sought to be relied upon by the defence.
Another important development relates to the correct approach to s. 137 Evidence Act which gives judges the power to refuse to admit evidence in criminal proceedings if its probative value is outweighed by the danger of unfair prejudice to the defendant. In NSW, it has been held that in considering the probative value of the challenged evidence, the evidence is to be considered on the assumption that it will be accepted, so matters of credibility and reliability will only rarely be relevant: :Regina v Shamouil (2006) 66 NSWLR 228. The fact that evidence is ambiguous (for example, an ambiguous confession) will not suffice to have evidence excluded, as long as the evidence is capable of giving rise to the inference contended for by the Crown: Regina v SJRC  NSWCCA 142 esp at para .
However, the approach taken in Shamouil has been rejected in late 2012 by a 5 judge bench of the Victorian Court of Appeal in Dupas v The Queen  VSCA 328, which has held that the reliability of the proposed evidence can be considered in the consideration of the power under s. 137. The difference in the approaches of the Victorian Court of Appeal and the NSW Court of Criminal Appeal will almost certainly have to be resolved in the High Court.
19 September 2012
Last week the High Court handed down the reasons for its designs in Burns v The Queen  HCA 35, in which it held that the mere supply of a drug to a sane person who decides to use it is not of itself enough to establish liability for manslaughter:
1 December 2011
Today the Court of Criminal Appeal handed down a decision about 'body mapping'. On the evidence in that presented by a prosecution expert witness, it was held that the Crown had not established that the expert was in a better position to compare photographs of the accused with CCTV photographs of the offence than the jury itself: Morgan v Regina  NSWCCA 257 . This decision is not currently available on the Supreme Court web-site.
On 17 November 2011 the Court of Criminal Appeal handed down its judgment in Regina v Lipton  NSWCCA 247. That judgment held that the duty of the police to disclose to the DPP all material relevant to either the prosecution case or the defence case under s. 15A Director of Public Prosecutions Act included material which was subject to a claim for public interest immunity.
On 25 November 2011 the NSW Parliament passed an amendment an amendment to the Director of Public Prosecutions Act (s. 15A (6)) which states that the police are not required to disclose to the DPP material which is the subject of a claim for public interest immunity. The provision is retrospective, but will cease to be in force after 1 January 2013 unless renewed.
6 October 2011
Yesterday the High Court handed down its decision in Muldrock v The Queen (2011) 244 CLR 120. The High Court has held that Regina v Way (2004) 60 NSWLR 168 was wrongly decided. This decision has an enormous potential for effecting the sentencing of offenders convicted of an offence with a standard non-parole period. As soon as I can, I will revise the chapter on sentencing to take into account this decision, but in the meantime I suggest that all practitioners read this decision. [Chapter now revised]
23 June 2011
From today there is a mandatory sentence of life imprisonment for the murder of a police officer acting in the course of his duty: s. 19B Crimes Act.
29 January 2011
From 14 January 2011, a judge may still order a judge alone trial even if the DPP does not consent if the accused consents and it is in the interests of justice to do so: s. 132 (4) Criminal Procedure Act. In other words, the DPP's veto over judge alone elections has been ended. Disturbingly, a judge can also order a judge alone trial if the judge finds that there is a substantial risk of jury tampering: s. 132(7) Criminal Procedure Act.
17 September 2010
Today a 5 judge bench of the NSWCCA handed down a judgment in the case of DPP (Commonwealth) v De la Rosa  194. This case establishes that s. 68A of the Crimes (Appeal and Review) Act (which greatly limits the effect of double jeopardy in Crown appeals) applies to Commonwealth as well as state offences.
13 September 2010
A week ago the NSW CCA handed down the first decision on the legislative changes to s. 66(2) of the Evidence Act by including In s. 66(2A) a non-exhaustive list of matters which have to be taken into account to determine if an asserted fact is 'fresh in the memory' which includes 'the nature of the event concerned' and 'the age and health of he person.' In Regina v XY  NSWCCA 181 the Court decided that on the facts of that case, where an alleged victim of sexual assault in 2003 to 2005 had complained to a friend in 2007 and then to his parents in 2009, the evidence was admissible.
19 August 2010
Today the NSW CCA observed that where there has been a breach of the rule in Brown v Dunn, the defence should only be prevented from calling evidence on that issue as a matter of last resort: A judge should only prevent the accused from calling evidence about a matter not put to a prosecution witness as a matter of last resort: Khamis v Regina  NSWCCA 179 esp at para .
6 July 2010
On 9 April 2010, after an extremely careful examination of the authorities, the NSW Court of Criminal Appeal has held that the principles of parity apply even if the co-offenders are charged with different offences: Jimmy v Regina  NSWCCA 60 esp at para , not following: Formosa  NSWCCA 363 esp at para .
26 May 2010
Today the High Court handed down its decisions in The Queen v LK and RK  HCA 17 and Ansari v The Queen  HCA 18. These decisions confirm that the Crown may charge an offence of conspiracy to commit an offence of recklessness, but only where the Crown can establish that the accused had actual intention of knowledge, or where a third party carries the conduct constituting the offence.
28 April 2010
In March the CCA held that where s. 61I or 61J (sexual intercourse without consent or aggravated sexual intercourse without consent) is charged, it is necessary for the prosecution to establish that the complainant did not consent even if the complainant is under 16: McGrath v Regina  NSWCCA 48. Although this is clear from the statute it clears up a widespread misconception.
I have checked every flaming link on the web site.
5 April 2010
On 22 March 2010 the Court of Criminal Appeal handed down its decision in Regina v JW  NSWCCA 49 as to the effect of s. 68A of the Crimes (Appeal and Review) Act. That provision states that double jeopardy is no longer to be taken into account in determining whether or not a Crown appeal will be allowed, or in resentencing a respondent toa Crown appeal. The Court held that while the Court retained a discretion as to whether or not to intervene when error has been established in a Crown appeal, for example where the Crown has delayed or where the Crown shares responsibility for the error. However s. 68A prevents the Court from taking into account the distress and anxiety to which any respondent in a Crown appeal would be presumed to be subject in determining whether or not to allow the appeal and in resentencing. It also prevents the frequency of Crown appeals in either the discretion to intervene or in resentencing (see esp. para ).
10 March 2010
Already this year a couple of interesting decisions have been handed down. In Butters v Regina  NSWCCA 1 at para  the NSWCCA rejected the argument that because of s. 21A (3) (i) Crimes (Sentencing Procedure Act an offender had to give direct evidence of contrition before getting any benefit for it.
In Regina v McIvor  NSWCCA 7 Howie J said that even though he thought that the range of sentences for offences for multiple armed robberies was inadequate, the offender was entitled to be sentenced in accordance with the actual range of sentences being imposed (at para ).
25 October 2009
On 24 September 2009 s. 68A of the Crimes (Appeal and Review) Act came into operation stating that double jeopardy is no longer to be taken into account in determining whether or not a Crown appeal will be allowed, or in resentencing a respondent to a Crown appeal. The legislation states that s. 68A applies to appeals commenced but not yet fully determined. An appeal in the case of Carroll has been filed challenging the constitutional validity of the retrospective nature of this legislation. It is suggested that Crown appeals should be adjourned until this appeal is determined.
7 October 2009
Site disappeared for a few days when Telstra terminated its 'free' web site hosting bundled with Internet access. It appears to be working OK again but let me know about any glitches.
25 April 2009
Again apologies for an absence of updates.
Changes to the Evidence Act came into force on 1 January 2009. Most of them are to the detriment of the criminal law. What follows is only a brief summary.
Section 41 (which deals with offensive and insulting questions) has been amended by including a large number of synonyms for the words 'offensive' and 'insulting' but also a prohibition on cross-examination based on cultural stereotypes.
Section 60 has been amended to permit hearsay evidence to be given whether or not the person who made the representation had personal knowledge of the fact. In other words, second hand hearsay can be admitted as evidence of the fact. This amendment was intended to overcome what were perceived to be the difficulties with Lee v The Queen (1998) 195 CLR 594, 74 ALJR 1484, which limited the effect of s. 60 to cases of first hand hearsay.
However the actual outcome of Lee v The Queen is preserved by s. 60(3) which states that s. 60 does not apply to evidence of an admission in criminal proceedings.
Section 66 has been amended in order to weaken the effect of Graham v The Queen (1998) 195 CLR 606 In determining whether or not the asserted fact was 'fresh in the memory', the court is now required to take into account the nature of the event concerned, the age and health of the person, and the period of time between the occurrence of the asserted fact and the making of the representation: s. 66(2A).
The Evidence Act has been amended to specifically declare that specialised knowledge includes knowledge of child development and behaviour, and in particular knowledge of the impact of sexual abuse on children and their development and behaviour: s. 79(2).
Section 128 has been amended to make it clear that it does not extend protection to evidence given by an accused of conduct which is not directly prove the commission of the offence charged but from which the commission of the crime could be inferred: s. 128(10). In addition a s. 128 certificate does not apply in favour of an accused who is giving evidence in a retrial: s. 128(9).
Section 192A Evidence Act empowers courts to make advance rulings on evidence, overcoming the disapproval of this useful practice by the High Court in TKWJ v The Queen (2002) 212 CLR 124 .
In Mahmood v Western Australia (2008) 232 CLR 397 the High Court stated that a Jones v Dunkel direction should not be given against the Crown. In Regina v Louizos  NSWCCA 71 the NSW Court of Criminal Appeal accepted that this case has changed the law in NSW.
It has been held that the Crown can charge an accused with conspiring to commit an offence where the mental element is recklessness, but both under the Commonwealth Criminal Code and at common law, in order to establish the offence the Crown must prove actual knowledge of the facts which make the act or acts unlawful: Regina v RK and LK  NSWCCA 338.
20 November 2008
Apologies for absence of updates, but I have spent a fair bit of the year out of Sydney. Here a few notable cases from the year.
In Adams v The Queen (2008) ALR 270 the High Court rejected an argument that sentences for possessing or importing ecstacy should be less than offences relating to heroin.
The question of the effect of the repeal of s. 77 Crimes Act, which in a sexual assault case gave a statutory defence of honest and reasonable mistake when the complainant was between the age of 14 and 16, was considered in CTM v Regina  HCA 25 The High Court held that that the defence of honest and reasonable mistake about the age of the complainant was still available as a defence.
In a decision on the common law, four out of 7 High Court justices said that similar fact evidence had to be proved beyond a reasonable doubt before a jury could act upon it: HML v The Queen  HCA 16, especially Hayne J. at [106-7], Gummow J. at , Kirby J. at  and arguably Kiefel J. at . The Court of Criminal Appeal has accepted that until the High Court rules otherwise, juries should be directed that the standard of proof of tendency evidence is beyond reasonable doubt: DJV v Regina  NSWCCA 272 at para .
The Law Enforcement (Controlled Operations) Act (1997) permits various law enforcement bodies to authorise an operation which would otherwise be illegal. The Act prohibits conduct likely to seriously endanger the health and safety of any person, or cause serious damage to property (s. 7). In Gedeon v Commissioner of the NSW Crime Commission  HCA 43 it was held that this provision was breached when the Crime Commission authorised the sale of 6 kilos of cocaine knowing it was unlikely to be recovered.
17 January 2008
A great deal of legislation came into force on 9 January 2008. Extra aggravating factors have been added to s. 21A Crimes (Sentencing Procedure) Act. More offences now have standard non-parole periods.
The law relating to sexual assault has been extensively changed. In particular the the circumstances in which it can be established that there was no consent to sexual intercourse have been widened, and a partly objective test has been substituted for the mens rea for sexual assault.
The relevant sections of the CLSK have been amended to reflect these changes.
Special leave has been granted by the High Court to reconsider the decision in CTM v Regina  NSWCCA 131 discussed immediately below: see CTM v The Queen  HCA Trans 704
1 June 2007
The Court of Criminal Appeal held that there is no defence of honest and reasonable mistake about the complainant's age in sexual assault charges where the age is an element of the offence: CTM v Regina  NSWCCA 131.
17 April 2007
A lot has happened.
As predicted, there have been amendments to the Crime (Sentencing Procedure) Act so that the non-parole period is imposed not when the suspended sentence is imposed, but only if there is a breach. It has been clarified that the District Court can deal with an appeal against the decision to revokes a suspended sentence and any subsequent order because of an amendment to the definition of 'sentence' in s. 3 of the Crimes (Appeal and Review) Act.
The Longman (1989) 168 CLR 179 direction has been limited by amendments to s. 294 Criminal Procedure Act. There has been attempt to eliminate the Murray direction (Murray (1987) 11 NSWLR 12) by the insertion of s. 294AA Criminal Procedure Act, but arguably this amendment has failed to do what its drafters set out to do. The Murray direction is that if the sole witness establishing the Crown case is the complainant the jury should consider the evidence of the complainant with great care.
The once absolute 'autrefois acquit' rule has been modified by statute, but only in relation to very serious changes: see Part 8 of the Crimes (Appeal and Review) Act.
8 November 2006
I understand that the problem of judges not setting a non-parole period when imposing a suspended sentence under s. 12 Crimes (Sentencing Procedure) Act is to be solved by giving the judge revoking the suspended sentence the power to set a non-parole period. This legislation is expected within a few weeks.
I would strongly advise anyone in the next few weeks dealing with the revocation of a suspended sentence where no non-parole period has been set to seek an adjournment until the situation has been clarified.
It has been held that the defence of mental illness can be raised in Local Court proceedings: Regina v McMahon  NSWDC 81. In the opinion of the writer, this defence should only be raised in cases other than murder in the most exceptional circumstances, because of the risk that a resolution under the mental health legislation might lead to a longer period of incarceration than a plea of guilty with a strong case in mitigation.
26 May 2006
As from today majority verdicts are available in New South Wales. In a trial (other than a Commonwealth trial), where there is a jury of 12 or 11, if there is evidence from a juror after a reasonable time (at least 8 hours) having regard to the nature an complexity of the matter that it is unlikely that the jury will come to a unanimous verdict, an 11-1 or 10-1 verdict can be returned: s. 55F Jury Act
25 May 2006
Yesterday the NSW Court of Criminal Appeal handed down Tang  NSWCCA 167 which may have the effect of eradicating facial mapping and body mapping expert evidence, at least where protocols are not disclosed, and where the expert does not simply assert a similarity, but purports to say that the accused is the identical person to the person in the photograph/video of the crime.
3 April 2006
Today the Crimes (Serious Sex Offenders) Act commenced. It permits the Attorney General to apply to the Supreme Court for a 'continuing detention order' of up to 5 years during the last six months of a sex offender's sentence.
15 December 2005
Today the NSW Parliament passed legislation in response to the Chronulla riots. The package includes an amendment to the Bail Act which means there is a presumption against bail for for the offence of riot, or an offence carrying a maximum penalty of more than 2 years which is committed while the accused is participating a large scale public disorder or 'in connection with the exercise of police powers to prevent or control such a disorder or the threat of such a disorder': section 8D Bail Act. How an accused could be expected to know that police are exercising their powers to prevent a threat of a disorder is not explained. The provision is retrospective.
4 August 2005
Today the High Court handed down the decision in Lavender v The Queen  HCA 37. This decision rejected the approach taken in the NSW Court of Criminal Appeal that malice was an element of manslaughter.
10 March 2005
Two days ago the High Court handed down its decision in Ali v The Queen  HCA 8. The High Court seemed to be of the opinion that where there is a cut-throat defence, there should be a joint trial, unless there are special or other features of the case requiring a separate trial (see esp para ).
5 February 2005
On Thursday the High Court handed down it decision in Nicholls and Coates v The Queen  HCA 1. The High Court has held that 'reasonable excuse' for not recording an admission by a suspect includes the situation where in the course of an interview the police turn the video and tape recorder off at the request of the suspect: Nicholls and Coates v The Queen  HCA 1. The High Court also rejected a challenge to the collateral evidence rule at common law.
4 December 2004
On 1 December the High Court rejected an appeal against the Court of Criminal Appeal's decision in Ellis (2003) 58 NSWLR 700, which in brief held that the Evidence Act had overturned the common law "Pfennig' test for similar fact.
23 November 2004
Last week the Court of Criminal Appeal handed down the decision of Mohamadin  NSWCCA 401 which is the culmination of a number of cases emphasising the fact that aggravating factors for the purposes of s. 21A Crimes (Sentencing Procedure) Act do not include matters that are elements of the offence.
In particular, in sentencing for an offence of armed robbery, the factors 'actual or threatened use of violence' and 'actual or threatened use of a weapon' probably are not available to be used as aggravating factors: Mohamadin  NSWCCA 401 at para . Similarly, in a charge of robbery in company, the fact that the offence was committed in company is not an aggravating factor.
Already it appears that errors of this kind will be a fertile field for appeals.
8 September 2004
Today the Court of Criminal Appeal handed down a guideline judgment for high range pca, Application by the Attorney General (no. 3 of 2002)  NSWCCA 303.
28 August 2004
Yesterday the Court of Criminal Appeal handed down its decision in Lirisitis  NSWCCA 287, in which it was said that 'there was much to commend' the radical view that the rule in Browne v Dunn (1894) 6 R 67 (having to put your case to a Crown witness who says something different to instructions from the accused) does not apply against an accused in a criminal trial (see para ), but did not decide the point.
18 August 2004
Yesterday the High Court granted special leave to appeal against the NSW Court of Criminal Appeal decision in Ellis  NSWCCA 319, the decision held that the common law 'Pfennig ' test for propensity no longer applied.
30 June 2004
Today the NSW CCA handed down the decision of Perez  NSWCCA 218. This case makes it clear that in cases where a judge is sentencing for a matter with a standard non-parole period, if he/she finds that there are special circumstances, that finding must be taken into account in setting the non-parole period. In other words it is an error to set the non-parole period, then find special circumstances, then use this finding to simply impose an extra long additional term.
6 June 2004
The NSW CCA has recently handed down the decision of Studenkin  NSWCCA 164, which in brief says that although the abolition of s. 16G does not mean that the tariff for Commonwealth matters has gone up by 50%, it does mean that the abolition of s. 16G cases does have to be taken into account in considering cases decided before the abolition of s. 16G.
11 May 2004
Today the NSW CCA handed down a number of judgments about the effect of the new 'standard non-parole period'. It has been made clear that the 'standard non-parole period' in the table is to be taken as the sentence to be imposed after a contested trial: Way  NSWCCA 131, Tuncbilek  NSWCCA 139. It follows that if you are pleading guilty to an offence to which the 'standard non-parole periods' apply, you can argue that the standard non-parole period needs to be discounted to take into account the plea.
9 April 2004
I am informed that as from 3 May 2004 magistrates are to be addressed as 'Your Honour' rather than 'Your Worship'. Readers of this site will no doubt pay due respect to magistrates.
The High Court has handed down a decision of Kelly v The Queen  HCA 12, which takes a very narrow view of the phrase 'in the course of official questioning' , very relevant for the admissibility of alleged verbal admissions under s. 281 Criminal Procedure Act.
6 November 2003
Yesterday a 5 judge bench of the CCA handed down its decision in Ellis  NSWCCA 319. In brief this decision overrules the line of authorities that said that propensity and coincidence evidence was admissible only if the 'Pfennig test' was satisfied (see Pfennig (1994-5) 182 CLR 461)
27 July 2003
I have found an online version of the amended Criminal Procedure Act at the web site of the Parliamentary Counsel's Office, and I have attempted to update all references on the site.
21 July 2003
As from 8 July 2003 the Justices Act was replaced (disturbingly for dinosaurs like me) by provisions in the Criminal Procedure Act. I have been waiting for AUSTLII to update their version of the Criminal Procedure Act before updating this site. In the meantime, a copy of the Criminal Procedure Act can be seen by searching for 'Criminal Procedure Act' at http://www.legislation.nsw.gov.au/maintop/search/inforce.
Practitioners should be aware that it appears that a 5 judge bench of the Court of Criminal Appeal will reconsider the question of whether the Pfennig test (see Pfennig (1994-5) 182 CLR 461)applies to propensity and coincidence evidence tendered under the Evidence Act in an appeal of Ellis, set down for hearing on 21 August 2003.
23 June 2003
Today the Victims Legislation (Amendment) Act comes into force. It permits victims of crime (or their representatives) to read out victim impact statements in court.
On 13 June 2003 the Crimes Amendment (Sexual Offences) Act came into force. This act to a great extent places offences of homosexual intercourse with minors in the same position as heterosexual intercourse, and increases penalties for some offences.
21 February 2003
The troubling suggestion by two judges of the High Court in Dyers v The Queen  HCA 45 that the rule in Jones v Dunkel did not apply to the failure of the prosecution to call witnesses has been firmly rejected in Riscuta and Niga  NSWCCA 6 (see paras  to ).
3 February 2003
Today the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act came into force. For certain offences committed after today, there is a 'standard non-parole period', which is to be imposed unless there are reasons for setting a longer or shorter non-parole period.
For all offences committed after today, the court is to first set the non-parole period, and then set the total sentence (s. 44)
As from 16 January 2003, s. 16 G and s. 19AG of the Commonwealth Crimes Act have been repealed. These provisions required sentencing judges to take into account the fact that remissions have been abolished in New South Wales in setting the sentence and the non-parole period in Commonwealth offences.
20 December 2002
Today the NSW Court of Criminal Appeal handed down judgments in relation to two guideline judgments. In the first, Attorney General's Application No 1 of 2002  NSWCCA 518, the NSW CCA considered the effect of putting matters on a Form One. It was held that the offender is not punished for the matters on the Form One, the effect of putting matters on the Form One was the offences were given a 'significantly lower salience in the sentencing process'.
In the second, Attorney General's Application No 2 of 2002  NSWCCA 515, the CCA declined to hand down a guideline judgment about the offence of assault police.
The NSW CCA also handed down the decision of Suteski  NSWCCA 509, which holds that an alleged co-offender who refuses to give evidence is an 'unavailable witness', so that an inculpatory record of interview made by him may be admissible in the trial of his alleged co-offfender.
16 November 2002
Yesterday the High Court handed down its decision in MFA  HCA 53. This decision rejected the view that because of Jones v the Queen (1997) 191 CLR 439 where there is a single complainant, and there are different verdicts on different counts, on appeal the guilty verdicts will be regarded as inconsistent and quashed.
The NSW Judicial Commission has put its Bench Book on-line. You should go to the Agreement for Use Page first. The bench book is used by most judges in New South Wales as a precedent for the summing up to the jury. Until very recently the Bench Book was not available to the legal profession, let alone the public. The availability of the Bench Book to the public, and on-line, is to be applauded. I would encourage practitioners to make use of this material while it is available. This material is gold.
On 9 October 2002 the High Court handed down its decision in Dyers v The Queen  HCA 45 which has held that except in an exceptional case a Jones v Dunkel direction should not be given against an accused.
Today the NSWCCA handed down Ambrosoli  NSWCCA 386 which appears to resolve the conflict in the authorities as to what could be considered in determining whether or not a statement made by an unavailable witness was 'made in circumstances that make it highly probable that the representation is reliable' and thus admissible under s. 65(2)(c) Evidence Act.
Today the NSW Court of Criminal Appeal handed down its judgment in Palu  NSWCCA 381. This case is interesting for a number of reasons but suffice to note that it states that if there are agreed facts on sentence, those facts should not be consistent with a more serious offence than that to which the offender has pleaded, and the Crown should not tender material inconsistent with those facts.
Last week an 'exposure draft' of the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Bill (2002) was released. It sets out proposed 'standard non-parole periods' for 19 offences. The bill is a very troubling move in the direction of mandatory or minimum sentencing.
On Friday the NSW Court of Criminal Appeal decided that the statutory power of a sentencing judge to grant a Griffiths type remand, now found in s. 11 Crimes (Sentencing Procedure) Act, is no longer limited to cases where a non-custodial sentence is contemplated, but can be granted in a case where the judge wants to wait for a period to get further information to assist the court in setting the appropriate non-parole period: Trindall  NSWCCA 364.
Yesterday the NSW Court of Criminal Appeal, in a 5 judge bench, held in Whyte  NSWCCA 343 that the decision of the High Court in Wong and Leung  HCA 64 did not have the effect of overturning either Jurisic (1998) 45 NSWLR 209 (the guideline judgment on sentences for dangerous driving occasioning death or grievous bodily harm, AKA culpable driving) or Henry (1999) 46 NSWLR 346 (the guideline judgment for sentences for armed robbery).
The judgment drastically modified the guideline set out in Jurisic. The amended guideline is set out in the Chapter on Sentencing.
For any offences allegedly committed after 1 July 2002, the presumption of bail has been removed for any-one who:
-at the time of the alleged offence, was already on bail, on parole, serving a sentence, or subject to a good behaviour bond
-had a previous conviction at any time for failing to appear
-had a conviction at any time for an indictable offence (s. 9B Bail Act).
This provision will probably have a huge impact on the number of people who are refused bail.
In Katarzynski  NSWSC 613 Howie J has made some interesting comments on the new laws about self-defence. In particular his Honour expresses the view that for the second leg of the defence (whether the defendant's actions were reasonable), the intoxication of the accused is irrelevant. This is contrary to to the view expressed in Conlon (1993) 69 A Crim R 92, and arguably contrary to the requirement in s. 418 Crimes Act that the that the reasonableness of the defendant's response be based upon his assessment of the facts 'as he or she perceives them'. I appreciate that this view may be contrary to public policy considerations, but I have difficulty in seeing how a statutory direction, to consider an assessment of the facts as the defendant perceives them, can ignore the fact of the defendant's intoxication.
A troubling suggestion that the defence of intoxication no longer applies to the crime of murder has been quashed: Grant  NSWCCA 242.
I have extensively added to the precedents section of the web-site.
On 24 April 2002 the New South Wales Court of Criminal Appeal handed down its decision in Sharma  NSWCCA 142. In this decision the court held that despite what three of the judges of the High Court said in Wong and Leung  HCA 64, judges in New South Wales should continue to apply the principles in R v Thomson (2000) 49 NSWLR 383 as to sentence matters where there is a plea of guilty (see entry below for 17/8/2000).
On 22 February 2002 the Crimes Amendment (Self-Defence) Act came into force. The Act inserts sections 418 to 423 into the Crimes Act.
The Act has two important consequences. Firstly, the Act codifies the 'defence' of 'self-defence'. The key change is that s. 418 makes it clear that the test to determine if the prosecution has excluded self-defence, is whether the defendant's response to a perceived threat was reasonable 'in the circumstances as he or she perceived them'.
Secondly, the Act by s. 421 re-introduces the doctrine of manslaughter by way of excessive self-defence, which at common law was in effect abolished by Zecevic (1987) 162 CLR 645.
On Friday the proposed guideline judgment case on sexual assault was postponed because of procedural problems. The NSW Attorney General has attempted to overcome the problems posed for the 'guideline judgment' procedure by Wong and Leung by seeking to amend the Crimes (Sentencing Procedure) Act.
On 15 February 2002 the High Court granted special leave in the case of MFA. It appears that the High Court is prepared to reconsider the appropriate test in cases where there are arguably inconsistent verdicts.
On 15 November 2001 the High Court handed down its decision in Wong and Leung  HCA 64. In it the High Court has overturned the NSW Court of Criminal Appeal's guideline judgment on sentences for drug couriers. The decision may also have the effect of invalidating the earlier guideline judgments, or perhaps at least those not involving the statutory power under the Criminal Procedure Act.
On 11 October 2001 the High Court handed down the decision of Gilbert Adam v The Queen  HCA 57. The line of authorities which have held that the prior inconsistent statements of a witness who has been declared an unfavourable witness under s. 38 were now admissible as evidence of the truth of those statements has been confirmed. The High Court said that as a result of s. 38 the decision of Blewitt (1988) 62 ALJR 503 no longer applies, and the Crown may call a witness known to be hostile. The High Court said that 'There appears much to be said, however, for the view that to give evidence which, at best, is unhelpful to the party calling it, and to do so without "making a genuine attempt to give evidence", is to give evidence "unfavourable" to that party.'
Decided some time ago, but only just available on the internet, is the decision of Gamgee  NSWCCA 251, which has held that a sentence can be partially suspended.
My attention has been drawn to Blackman and Walters  NSWCCA 121, a case were the CCA held that a judge was entitled to find that there were 'most exceptional' circumstances justifying a non-custodial sentence for an armed robbery. You may think that the circumstances in this case are not particularly unusual. As a result the case may be useful when attempting to get a non-custodial sentence for armed robbery for a young offender, with no record, and good subjective circumstances.
Today the High Court handed down its judgment in Mundarra Smith  HCA 50, in which the High Court held that evidence of police witnesses that they recognised an accused from photographs of a robbery is inadmissible.
Today the High Court handed down its orders, but not its judgment, in the appeal of Mundarra Smith. Smith's appeal was allowed and a retrial ordered. As a result it appears likely that the High Court that evidence of police witnesses that they recognise the accused as being the person depicted in a bank photograph of a robbery is inadmissible. The NSW Court of Criminal Appeal judgment, which has been overturned, is Mundarra Smith (1999) 47 NSWLR 419,  NSWCCA 317
The High Court has overturned the judgment of the NSW CCA to the effect that in sentencing a priest of prior good character for sexual assault offences upon young boys over many years, the judge was not in error in giving no weight to prior good character: Ryan v The Queen  HCA 21.
Also, the Australian Law Reform Commission Reports which led to the Evidence Act are now finally both on-line. The reports can be used by courts in interpreting the Evidence Act. However both have been out of print and rare as hen's teeth for some time. You can find both Report 26 Evidence (1985) (Interim) and Report 38 Evidence (1987).
On 3/5/2001 the High Court handed down its long awaited judgment in Azzopardi v The Queen  HCA 25. In brief the High Court has confirmed its decision in RPS. Only in 'rare and exceptional circumstances' should a jury be given a Weissensteiner direction; that is, a direction that the failure of an accused to give evidence can be used by a jury to infer that doubts about prosecution evidence can more readily be discounted, and that evidence from prosecution witnesses can more readily be accepted, because of that failure to give evidence.
Apologies for the delay in updating the site which were largely the result of a tragic hard disk crash.
The NSW Court of Criminal Appeal has reiterated that it will rarely be appropriate to give a Jones v Dunkel direction in a case in which the no-one calls a witness who on either case is open to suspicion as being criminally involved: Zreika  NSWCCA 57.
In Taousanis  NSWSC 74 it was held that an identifying witness could only give evidence of a prior act of identification, it was necessary for the relevant incident to be 'fresh' in the witness's mind, in the sense that that expression is used in Graham. This decision turns on the decision of the Court of Criminal Appeal in Barbaro and Rovere (2000) 112 A Crim R 192 which is to the effect that a witness to an act of identification can only give evidence of the act of identification by an eye-witness if when the act of identification was done it was fresh in the witness' mind.
A bit of a round up of recent developments. I have added a link to the Defender Bank page in the Public Defenders' web site, which has links to a number of articles including 'Short Notes', a summary of nearly all Court of Criminal Appeal decisions, reported and unreported. I should express a personal bias as a Public Defender myself.
The vexed question of the directions to be given in a trial where the accused does not give evidence will be reconsidered by the High Court on 20 November 2000 in Azzopardi v The Queen. You can to read the transcript of the the special leave application. It seems fair to say that the future of RPS is currently uncertain.
The NSW Court of Criminal Appeal has rejected a long line of common law authority about the requirements for the admissibility of voice identification evidence in the case of Idler  NSWCCA 357. This decision appears to have overturned the common law requirement (at least in New South Wales) that either the hearer was previously familiar with the voice, or that the voice was very distinctive, as established in Smith  7 NSWLR 444 and Brownlowe (1986) 7 NSWLR 461.
Today the High Court granted special leave to appeal in the case of Mundarra Smith  NSWCCA 317. This case deals with the important question of whether police witnesses should be able to give evidence that they recognise the accused as being the person depicted in a bank photograph of a robbery. The transcript of the special leave application can be read here.
Today the Court of Criminal Appeal handed down a guideline judgment about pleas of guilty, R v Thomson & Houlton  NSWCCA 309. In it the Court of Criminal Appeal stated that judges should explicitly state that a plea of guilty is taken into account, and failure to do so may be taken as indicating that the plea was given insufficient weight. A discount in the range of 10% to 25% was suggested for the bare utilitarian value of the plea (that is, before genuine contrition is taken into account). The extent of the discount will depend on the time when the plea is entered- obviously the discount is less for a plea at the last possible moment, but there is still some discount.
My attention has been drawn to the decision of the NSW CCA of Blick  NSWCCA 61 which is an important case on the 'discretion' to exclude identification evidence. The word 'discretion' is in inverted commas because the CCA emphasised that once a judge finds under s. 137 Evidence Act that the danger of unfair prejudice outweighs the probative value of the evidence, there is no longer any discretion, and the evidence must be excluded.
Today the Crimes (Sentencing Procedure) Act commences which has the effect of transferring many of the sections of acts dealing with sentencing into one statute. As a result familiar sections like s. 556A of the Crimes Act and s. 5 of the Sentencing Act are no longer where you would expect them to be. I hope I have updated the chapter on Sentencing to take all this into account.
Yesterday (3 February 2000) the High Court handed down its decision in RPS  HCA 3. The effect of this decision is that when an accused does not give evidence, in most cases a 'Weissensteiner' direction should not be given.
The vexed question of the appropriate test to apply for legal professional privilege appears to have been resolved by the High Court in the case of ESSO v Commissioner of Taxation  HCA 67.
A number of important provisions relating to evidence and criminal procedure have been removed from the Crimes Act and inserted into the Criminal Procedure Act. These changes commenced on 1 January 2000.
All these developments have been incorporated into the text of the Criminal Law Survival Kit.
Yesterday (16 December 1999) the Court of Criminal Appeal handed down to further guideline judgments on sentencing.
The first of these is In the matter of the Attorney-General's Application (no. 1)  NSWCCA 435 and is a guideline judgment about the offence of break enter and steal. No particular tariff is set out. The second is Regina v Wong and Leung  NSWCCA 420 and deals with sentencing for the importation of heroin and cocaine. Both these cases are now dealt with in the Criminal Law Survival Kit.
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