Countering Terrorism Will Lead to More Bail Reforms

By Rhanda Taouk

The Federal and State Governments in Australia are increasingly focused on measures to counter an ‘evolving terrorist threat’. In NSW, for example, the Terrorism Legislation Amendment (Police Powers and Parole) Bill 2017 (NSW) was introduced in June 2017 in response to recommendations made by the ‘State Coroner of NSW Inquest into the deaths arising from the Lindt Café – Findings and Recommendations’ (Inquest report). Coroner Michael Barnes recommended that the Government consider legislative changes to ensure that police have the necessary protections to resolve terrorist incidents in a manner most likely to minimise risk to the public (recommendation 24; p. 324). The Premier announced that the legislation was to provide certainty for police to use lethal force against terrorists.

In October 2017, the Council of Australian Governments (COAG) agreed that a number of measures be implemented as part of a nationally-consistent approach to prevent the threat of terrorism. These included changes to Commonwealth legislation, including a new Commonwealth offence for those who possess instructional terrorist material, a specific ‘terrorism hoax offence’ to deter hoaxes which have the potential to cause significant alarm and disruption to the community, and the enhancement of the existing commonwealth pre-charge detention regime under Part 1C of the Crimes Act 1914 (Cth).

The COAG also noted that progress had been made in States’ respective High Risk Terrorist Offenders schemes, in which such offenders may be detained after the completion of their sentences. Relevantly, on 30 November 2017, the NSW Government assented to the Terrorism (High Risk Offenders) Bill 2017 (NSW), complementing the existing Commonwealth scheme (which was outlined in Emma Bayley’s post in December 2016).  An exploration of the latest amendments is however beyond the scope of this post.

This post, however, focuses on a change COAG recommended be implemented at a State Government level, namely a presumption against bail for persons who have demonstrated support, or have links to, terrorist activity. Focusing on NSW, this post considers the change may go too far and deviates from the purpose of bail, which is to preserve the innocence of the accused (and balance liberty against community and safety considerations) until they are formally tried. Continue reading “Countering Terrorism Will Lead to More Bail Reforms”

Advertisements

Have we lost sight of the purpose of bail?*

By Raffaele Piccolo

*Originally published in Amicus September 2016 edition.

The purpose of bail is to preserve the integrity of the criminal justice system, by securing an accused person’s attendance at their trial, and avoiding interference with the course of justice (ie through an accused person’s contact with or intimidation of, a witness or victim). The decision of whether to grant bail ultimately requires an assessment of risk; the risk that an accused person’s being at liberty poses to the preservation of the criminal justice system. Consistent with the presumption of innocence and the general right of persons to be at liberty, an accused person’s right to liberty will only be interfered with (with the imposition of bail conditions or denial of bail) to the extent strictly necessary to give effect to the purpose of bail. The Bail Amendment Act 2014 (NSW) and the Bail Amendment Act 2015 (NSW) throw these basic propositions into doubt, and indicate that we have lost sight of the purpose of bail. Continue reading “Have we lost sight of the purpose of bail?*”

From Sex and Violence to Terrorism: Comparing the NSW and Commonwealth continuing detention schemes*

By Emma Bayley**

*Originally published in Amicus December 2016 edition.

**Senior Solicitor, Crown Solicitor’s Office. The views expressed are those of the author and do not necessarily reflect those of the Crown Solicitor.

 

Many practitioners will have seen recent media reports about the new Commonwealth scheme for continued detention of high risk terrorist offenders beyond the expiry of their sentences.

The Commonwealth scheme for terrorist offenders passed both houses on 1 December 2016. The NSW scheme has been around for some time now, since 2006 for sex offenders and since 2013 for violent offenders. It is now a good time to compare the two schemes. The NSW scheme is found in a stand alone Act, the Crimes (High Risk Offenders) Act 2006 (“the NSW Act”), whereas the Commonwealth scheme will be inserted as a new Division 105A into Part 5.3 of the Commonwealth Criminal Code. Continue reading “From Sex and Violence to Terrorism: Comparing the NSW and Commonwealth continuing detention schemes*”

Frits George Van Beelen v The Queen [2017] HCA 48

By Seppy Pour

On 8 November 2017, the High Court handed down its decision in Van Beelen v The Queen [2017] HCA 48. The case concerned the assessment of expert evidence that was obtained subsequent to the trial and whether this evidence was “fresh”, “compelling”, “substantial”, and in the “interests of justice”.

Background

In 1973, the appellant was convicted of the murder of a 15-year-old school girl at Taperoo Beach in South Australia. The prosecution case was circumstantial and relied upon evidence that the appellant, given the time of death, was one of the few male persons with the opportunity to have committed the offence.

At trial, a pathologist who conducted the autopsy gave evidence that the deceased must have died by 4:30pm based on the contents of her stomach. This was disputed by defence. There was unchallenged evidence that the appellant left the beach not later than 4:30pm. Continue reading “Frits George Van Beelen v The Queen [2017] HCA 48”

The Exceptions to the Rule against Double Jeopardy: When is Evidence “Fresh”?

Originally published in Amicus, June 2016 edition. At the time of writing, the below post was speculative, and pre-dates legal argument in the recent hearing.

 

By Raffaele Piccolo

On 24 May 2016 the Attorney-General of NSW announced that the NSW Government would make an application to the NSW Court of Criminal Appeal (“the Court”) for the retrial of the person accused of the murders of Colleen Walker, Evelyn Greenup and Clinton Speedy-Duroux.[1]

Section 100(1) of the CARA provides for an exception to the rule against double jeopardy. It provides that the Court may order an acquitted person to be retried for a “life sentence offence” if satisfied that there is “‘fresh” and “compelling” evidence against the acquitted person in respect of the relevant offence, and the retrial is in all the circumstances, in the “interests of justice”.

This is first time that the Court has been asked to consider such an application.

This post will provide a brief history of the offences that are the subject of the application, and possible questions the Court will have to consider when asked to determine the application. Continue reading “The Exceptions to the Rule against Double Jeopardy: When is Evidence “Fresh”?”

Robertson and Parente – recent CCA decisions on the incompatibility of the “Clark principle” with judicial discretion

 

By Sophie Coulson

Introduction

Hunt J in R v Peter Michael Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported) stated that the Court of Appeal “has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers, and it has indicated that only in exceptional circumstances will a non-custodial order be appropriate” [3]. This statement, otherwise known as the “Clark principle” has been affirmed time and time again.

The recent decisions of Robertson v R [2017] NSWCCA 205 and Parente v R [2017] NSWCCA 284 considered whether this principle has any future application in our courts. Continue reading “Robertson and Parente – recent CCA decisions on the incompatibility of the “Clark principle” with judicial discretion”

R v Terkmani [2017] NSWSC 1154 and Unfavourable Witnesses

By Sophie Coulson

Introduction

Section 38 of the Evidence Act 1995 (NSW) permits a party calling a witness to go against the ordinary course and cross-examine that witness on certain matters where leave is granted. The recent judgment of McCallum J in R v Terkmani [2017] NSWSC 1154 considers a number of applications made by the Crown pursuant to this provision. This article firstly considers the operation of s 38 and then examines some of the applications made pursuant to s 38 in the case of Terkmani. Continue reading “R v Terkmani [2017] NSWSC 1154 and Unfavourable Witnesses”

R v Lazarus [2017] NSWCCA 279

By Andrew Tiedt

The Court of Criminal Appeal has handed down its decision on the appeal by the Crown against Luke Lazarus’ acquittal, following a judge alone retrial.

Procedural Background and Facts

Lazarus was tried in early 2015 and convicted by a jury of one count of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900.

The allegation was that he sexually assaulted an 18 year old woman in the alley behind his father’s nightclub. They had met on the dance floor of the club that evening. She was intoxicated.

Lazarus and the complainant kissed each other in the alley. On the complainant’s version, after a while they stopped and she asked to return to the club, at which time she claimed the accused raped her. The accused claimed that they engaged in consensual intercourse.

After being convicted, Lazarus was sentenced to imprisonment for 5 years, with a non-parole period of 3 years. He appealed to the Court of Criminal Appeal, arguing that the trial judge misdirected the jury on the question of consent. He also alleged that the verdict was unreasonable.

Continue reading “R v Lazarus [2017] NSWCCA 279”

Director of Public Prosecutions v Dalgliesh (A Psyuedonym)

By Nicholas Morrisey

In Director of Public Prosecutions v Dalgliesh (A Psyuedonym), the High Court (‘the Court’) unanimously allowed an appeal on sentence from the Victorian Court of Appeal (‘Court of Appeal’). In doing so, the Court again affirmed the desirability of the process of instinctive synthesis and reiterated the importance of individualised justice. No single factor in sentencing is to be afforded supremacy in such a way as to fetter discretion or allow an unjust sentence to stand. The decision also acts as a reminder for practitioners that when considering a plea of guilty, the accused’s expectation of a sentencing outcome will not act as a bar to the fixing of a just sentence. Continue reading “Director of Public Prosecutions v Dalgliesh (A Psyuedonym)”

“Revenge” Porn or Child Porn? Is New South Wales’ First Image-Based Abuse Charge being Misapplied?

By Aurhett Barrie

A 20 year old man has been charged in what appears to be the first case prosecuting New South Wales’ new “revenge porn” offences, however the charges have arguably been misapplied, potentially minimising what may amount to more serious conduct.

Continue reading ““Revenge” Porn or Child Porn? Is New South Wales’ First Image-Based Abuse Charge being Misapplied?”