Court of Criminal Appeal
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- Catchwords
- CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - whether permitted under Land and Environment Court Act s 63.CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - obligation of judge to ensure fair trial - conviction - whether miscarriage of justice.CRIMINAL LAW - Appeal - Conduct of defence - representation by unqualified person - obligation of judge to ensure fair trial - sentencing - failure to inform defendant of right to raise matters of mitigation - miscarriage of justice.
- Judgment of
- Bathurst CJ at [1]; Whealy JA at [105]; McClellan CJ at CL at [106]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - sentence appeal - aggravated robbery - plea of guilty - applicant attending strict residential rehabilitation course over 14 months - rehabilitation very successful - failure of sentencing judge to take into account time on rehabilitation course as quasi-custody - need to take period of quasi-custody into account - backdating of commencement date of sentence.
- Judgment of
- HOEBEN JA at [1]RS HULME J at [35]FULLERTON J at [36]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - sentence - whether error emerges from sentencing judge's remarks during hearing - whether sentencing judge erred in failing to account for appellant's protective custody in sentencing.
- Judgment of
- Whealy JA [1]Hidden J [56]Schmidt J [57]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - conviction appeal - unreasonable verdict ground - application of SKA v The Queen [2011] HCA 13; 243 CLR 400 where order for retrial made - whether necessary or appropriate for Court to express view on issue of appellant's guilt
- Judgment of
- Macfarlan JA at [1] RA Hulme J at [8] Garling J at [9]
- Category
- Procedural and other rulings
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- Judgment of
- Basten JA at [1]Blanch J at [2]Hall J at [20]
- Category
- Principal judgment
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- Catchwords
- Judgment of
- Whealy JAHislop JLatham J
- Category
- Principal judgment
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- Catchwords
- Criminal law - sentencing - provocation - finding as to seriousnessAppeal - limits on usefulness of statistics and past cases
- Judgment of
- Macfarlan JA at [1]RS Hulme J at [2]RA Hulme J at [39]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - 5F application - jury trial - trial by judge alone - application of s 132 of the Criminal Procedure Act 1986 - whether there is a presumption in favour of a jury trial - what factors are relevant to a determining the interests of justice - whether the subjective views of the accused are relevant to the interests of justice - whether there is evidence to support the subjective views of the accused - whether trial efficiency and reasons are relevant to the interests of justice
- Judgment of
- McClellan CJ at CL at [1]Hidden J at [116]Hislop J at [121]
- Category
- Interlocutory applications
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- Catchwords
- CRIMINAL LAW - Crown appeal against sentence - robbery in company - whether primary judge failed to take into account, or misapplied sentencing guideline judgment - whether primary judge underestimated objective seriousness of offences - whether sentences manifestly inadequate - application of parity principles - whether primary judge erred in finding offender genuinely remorseful.
- Judgment of
- Whealy JA at [1]Blanch J at [2]Beech-Jones J at [3]
- Category
- Principal judgment
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- Catchwords
- EVIDENCE - Coincidence evidence - s 98 Evidence Act 1995 (as at 10 November 2008) - for events to be related events, the events must be substantially and relevantly similar; and that the circumstances in which the events occurred must be substantially similarEVIDENCE - Coincidence evidence - where evidence of A is adduced to prove that because of the improbability of A and B occurring coincidentally, a person did B; and evidence of A also adduced to prove that because of the improbability of A and C occurring coincidentally, that person did C - consideration of similarities between B and C not relevant to whether evidence of A can be admitted as coincidence evidence concerning B or CCRIMINAL LAW - Evidence - Coincidence evidence - s 101 Evidence Act 1995 - probative value of evidence must outweigh any prejudicial effect it may have on the defendant - whether trial judge applied testEVIDENCE - Coincidence evidence - s 95 Evidence Act 1995 - where evidence inadmissible as coincidence evidence but admitted as circumstantial evidence, but where the probative value of the evidence as circumstantial evidence relied upon the same similarities as those identified in relation to coincidence evidenceAPPEAL - s 6 Criminal Appeal Act 1912 - where applicable statute requires a range of questions to be addressed, it must be clear that in substance all questions have been considered - whether trial judge permitted evidence to be adduced without having satisfied statutory preconditionsEVIDENCE - Admissibility - Voir dire - decision made on basis of evidence expected to be given - whether unavailability of evidence expected to be given - whether possibility of miscarriage of justice arising from jury having had before them evidence that, as the facts ultimately unfolded, they should not have hadAPPEAL - Practice and Procedure - Appeal against conviction - s 10(1) Criminal Appeal Act 1912 - notice of intention to appeal against conviction required within 28 days after conviction - need for evidence to justify grant of extension of time - court requires substantial reasons to be advanced before granting extension of time - prospects of success and significance of consequences if extension denied are relevant matters
- Judgment of
- Campbell JA at [1]RS Hulme J at [127]Hoeben J at [128]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - APPEAL - sexual offences - appeal against conviction - Criminal Procedure Act, s 293 - presence of disease - evidence of sexual experience of complainant - psychological condition - s 293(4)(2)(ii) - probative value of evidence - evidence admissible.CRIMINAL LAW - APPEAL - sexual offences - appeal against conviction - Crimes Act s 73 - meaning of "step-father" - does not include de facto partner of parent of child - R v Miller [2001] NSWCCA 209 - history of sexual offences legislation - meaning of "foster parent" - whether includes de facto partner of parent of child.STATUTORY INTERPRETATION - literal approach - purposive approach preferred.
- Judgment of
- Whealy JA at 1Simpson J at 37Hoeben J at 169
- Category
- Principal judgment
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- Catchwords
- Criminal law - sentencing - standard non-parole period - role of judge in assessing objective seriousness - significance of standard non-parole period
- Judgment of
- Basten JA at [1]Blanch J at [2]Hall J at [19]
- Category
- Principal judgment
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- Catchwords
- BAIL PENDING APPEAL TO COURT OF CRIMINAL APPEAL - bail - bail review - unrepresented litigant - whether special or exceptional circumstances existed
- Judgment of
- Hoeben JA at [1]RS Hulme J at [2]Schmidt J at [8]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - sentencing - inflicting grievous bodily harm with intent - affray - plea of guilty - parity principle - relevant differences - different degrees of culpability - different circumstances - youth - children - power to order young offender who has attained 18 years to serve sentence as a juvenile offender - extent of power - where offence is serious children's indictable offence - order available where special circumstances exist - vulnerability due to illness or disability - whether disability available on evidence - whether open to sentencing judge to take into account limitations on power to order sentence be served as juvenile offender - whether manifestly excessive - Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 17, 18, 19, 19(1), 19(2), 19(3), 19(4), 19(4A) - Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A, ss 12, 44, 54D(3) - Crimes Act 1900 (NSW) ss 33, 35, 93C(1) - Criminal Appeal Act 1912 (NSW) s 6(3)
- Judgment of
- Whealy JA at [1]Simpson J at [27]Hoeben J at [148]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - conviction - offences of aggravated dangerous navigation occasioning death - whether trial judge erred in presentation of evidence during summing up to jury - failure to summarise evidence by reference to issues - whether leave to appeal should be granted - R v Zorad (1990) 19 NSWLR 91 distinguished; El-Jalkh v R [2009] NSWCCA 139; RR v R [2011] NSWCCA 235 applied - Criminal Procedure Act 1986 (NSW), s 161 CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - whether manifestly inadequate - whether trial judge failed to assess adequately the moral culpability of the defendant - whether trial judge erred in assessing the objective seriousness of the offence - whether manifest error CRIMINAL LAW - appeal - sentence - offences of aggravated dangerous navigation occasioning death - application of guideline judgments - R v Reynolds; R v Small [2010] NSWSC 691; R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 applied
- Judgment of
- Basten JA at 1; Blanch J at 51; Beech-Jones at 52
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - Appeal - Application for reconsideration - Criminal Appeal Rules 50C - New trial order revoked and acquittal orderedEVIDENCE - Evidence Act 1995, s 98 - coincidence - insufficient similarities
- Judgment of
- Campbell JA at [1]RS Hulme J at [26]Hoeben J at [27]
- Category
- Consequential orders
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- Catchwords
- CRIMINAL LAW - Crown appeal against sentence - supply of ecstasy - whether sentencing judge erred in finding that respondent's mental condition was such that his judgment was impaired - whether sentencing judge erred in finding that respondent would face adverse consequences in relation to his employment and ability to travel overseas if a conviction was recorded - whether sentence was manifestly inadequate - sentence not manifestly inadequate - appeal dismissed
- Judgment of
- Beazley JA at 1Harrison J at 2McCallum J at 43
- Category
- Principal judgment
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- Catchwords
- Criminal law - appeal on ground sentence excessive - appeal dismissed
- Judgment of
- McClellan CJ at CL at 1, Hidden J at 2, Hislop J at 3
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - extra-curial punishment, public humiliation and vilification - effect on the offender - whether community response should be understood in context - whether error of the sentencing judge shown CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - remorse and self punishment - weight to be given to remorse and self punishment in a case of gross moral culpability - discussion of Neal v The Queen [1982] HCA 55; 149 CLR 305 CRIMINAL LAW - appeal - sentence - manslaughter and aggravated dangerous driving occasioning grievous bodily harm - whether manifestly excessive - whether sentences were outside the relevant range - discussion of R v Borkowski [2009] NSWCCA 102; 52 MVR 528 and R v Cameron [2005] NSWCCA 359; 157 A Crim R 70
- Judgment of
- Basten JA at 1; Blanch J at 46; Hall J at 47
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - conviction - evidence - sexual intercourse with person aged under 10 years - complainant gave unsworn evidence - Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether non-compliance necessitates upholding appeal - whether miscarriage of justice EVIDENCE - witnesses - competence - unsworn evidence - requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue - whether Evidence Act 1995 (NSW), s 13 complied with - whether witness competent to give unsworn evidence if not given required direction
- Judgment of
- Basten JA at 1; Blanch J at 36; Hall J at 37
- Category
- Principal judgment
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- Judgment of
- McClellan CJ at CL at [1]Johnson J at [2]Grove AJ at [3]
- Category
- Principal judgment
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- Catchwords
- Criminal Law - sentencing - aggravated sexual intercourse with child - aggravated sexual assault on child - totality
- Judgment of
- CAMPBELL JA [1]RS HULME J [4]HOEBEN J [74]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - conviction - detention with the intention of holding to ransom in the company of others with occasioning of actual bodily harm - s 86(3) Crimes Act 1900 - whether verdict unsafe and unsatisfactory - s 6 Criminal Appeal Act 1912 - whether evidence to support Crown case
- Judgment of
- Macfarlan JA at [1] RS Hulme J at [56] Garling J at [57]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL - Appeal - sentence - driving in a manner dangerous causing death - s 52A(1)(c) Crimes Act 1900 (NSW) - whether primary judge erred in regarding death as an aggravating feature.
- Judgment of
- Whealy JA at [1]Blanch CJ at DC at [14]Beech-Jones J at [15]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - sentencing - taking into account a circumstance of aggravation which was element of uncharged offence - whether uncharged offence more serious - application of The Queen v De Simoni CRIMINAL LAW - appeal - standard non-parole period - sentencing for a more serious offence
- Judgment of
- Basten JA at [1] Blanch J at [10] Beech-Jones J at [31]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal - conviction - assault occasioning actual bodily harm in company - whether evidence of actual bodily harm - definition of 'bodily harm' - whether explanation necessary in judge-alone trial - whether offence committed 'in company' - evidence of common purpose - whether self-defence open on factsCRIMINAL LAW - appeal - sentence - assault occasioning actual bodily harm - whether necessary to identify extent of harm inflicted - whether sentence of imprisonment warranted
- Judgment of
- Macfarlan JA at [1] RS Hulme J at [64] RA Hulme J at [74]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - sentencing - disparity of sentence with co-offender - whether difference in charges precludes application of equality principle CRIMINAL LAW - sentencing - whether sentence excessive - whether extent of accumulation excessive
- Judgment of
- Basten JA at [1] Blanch J at [9] Beech-Jones J at [31]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - prosecution appeal - residual discretion to reject appeal where inadequacy established - relevance of lapse of time since sentencing - relevance of proximity to release - responsibility of Director for delay in presenting relevant material to appeal court - effect of Crimes (Appeal and Review) Act 2001 (NSW), s 68A CRIMINAL LAW - prosecution appeal - sentencing - accumulation - whether sentence should have been partly accumulated on balance of parole in relation to a prior offence - whether increase in overall sentence sufficient to warrant intervention CRIMINAL LAW - prosecution appeal - sentencing - conspiracy to manufacture a prohibited drug (amphetamine) in an amount not less than the large commercial quantity - whether sentence manifestly inadequate CRIMINAL LAW - prosecution appeal - sentencing - offences of possess prohibited pistol contrary to Firearms Act 1996 (NSW), s 7(1) and sell prohibited firearm contrary to Firearms Act, s 51 - transposition of sentences based on comparative seriousness - whether error warrants appellate intervention CRIMINAL LAW - sentencing - assistance to authorities - whether permissible to provide discount for assistance to authorities and consider assistance as a special circumstance for the purposes of Crimes (Sentencing Procedure) Act 1992 (NSW), s 44 CRIMINAL LAW - sentencing - provision of assistance to authorities - whether conditions of incarceration likely to be more onerous - need to demonstrate likelihood - role of Director in relation to the circumstance of incarceration EVIDENCE - sentencing - evidence as to conditions of imprisonment post sentencing - failure of Director to challenge at hearing - tender of evidence without leave after hearing purporting to contradict offender's evidence - propriety of Director's conduct
- Judgment of
- Basten JA at 1; RS Hulme J at 60; Hall J at 155
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - Sentence appeal - unauthorised possession of a prohibited firearm - whether sentence was manifestly excessive - parity - whether there is a justified sense of grievance arising out of sentence imposed on another offender in relation to same firearm - differences in nature of the offences and personal circumstances
- Judgment of
- Macfarlan JA at [1]R S Hulme J at [2]R A Hulme J at [3]
- Category
- Principal judgment
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- Catchwords
- CRIMINAL LAW - appeal against sentence - cultivate commercial quantity of cannabis - parity principle - different roles of co-offenders - where sentence of co-offenders inadequate - whether sentence manifestly excessive.
- Judgment of
- McClellan CJ at CL at [1]Davies J at [2]Garling J at [41]
- Category
- Principal judgment
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- Catchwords
- COSTS - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether "an appeal" within the meaning of Criminal Appeal Act 1912 (NSW), s 17 - whether costs can be ordered CRIMINAL LAW - appeal - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - whether appropriate for trial judge to identify findings of fact other than those identified in the judgment - whether extension of time to submit stated case should be granted CRIMINAL LAW - appeal - sentencing - application pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether failure to consider facts relied upon by applicant or other relevant matters amounted to an error of law - whether failure to make factual findings and consider submissions amounted to an error of law - whether failure to consider mitigating factors specified in Crimes (Sentencing Procedure) Act, s 21A amounted to an error of law - whether s 10 is available to a person charged with a strict liability offence CRIMINAL LAW - procedure - case stated pursuant to Criminal Appeal Act 1912 (NSW), s 5B - trial judge in declined to proceed with matter under Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 - whether issue not proffered for determination by the District Court can form the basis of a stated case - whether question of law arises
- Judgment of
- Basten JA at 1; RS Hulme J at 52; Schmidt J at 64; The Court at 129
- Category
- Principal judgment
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- Catchwords
- CRIMINAL - conviction appeal - murder - tape recorded conversations between appellant and undercover operatives - failure of counsel to address admissibility question at trial - evidence wholly prejudicial - appeal upheld - conviction quashed and new trial ordered.
- Judgment of
- McClellan CJ at CL at [1]Blanch J at [101]Hislop J at [102]
- Category
- Principal judgment
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- Judgment of
- Bathurst CJ at 1James J at 6Johnson J at 7
- Category
- Principal judgment