Kalbasi v The State of Western Australia [2018] HCA 7: proviso and substantial miscarriage of justice

By Seppy Pour

On 14 March 2017, the High Court handed down its decision in Kalbasi v Western Australia [2018] HCA 7 and explored the application of the ‘proviso’ by an appellate court. By a 4:3 majority, the High Court held that the trial judge’s misdirection did not occasion a substantial miscarriage of justice.

Continue reading “Kalbasi v The State of Western Australia [2018] HCA 7: proviso and substantial miscarriage of justice”


DPP Reference No 1 of 2017 [2018] VSCA 69: Prasad directions

By Steven Doupe

The Victorian Court of Appeal has handed down its decision in DPP Reference No 1 of 2017 [2018] VSCA 69 regarding the validity of the giving of a Prasad direction in criminal trials. The Prasad direction is the term given to a direction by a trial judge that, at any point following the close of the prosecution case, the jury may elect to acquit without hearing any further evidence in a case that is ‘obviously weak’. The practice of giving such a direction in Australia arose out of the dictum of King CJ in The Queen v Prasad (1979) 23 SASR 161. The present matter came before the Court of Appeal by way of the Director of Public Prosecutions exercising its power to refer a point of law pursuant to s 308 of the Criminal Procedure Act 2009 (Vic) (‘CPA’).

Continue reading “DPP Reference No 1 of 2017 [2018] VSCA 69: Prasad directions”

Amendments to the Crimes (High Risk Offenders) Act 2006

By Nayomi Senanayake

The ever-controversial Crimes (High Risk Offender) Act 2006 (‘the Act’) was amended late last year in an effort to strengthen the State’s high risk offender management regime. Broadly, the Act enables the State to make applications to the Supreme Court for continued detention orders (‘CDO’) or extended supervision orders (‘ESO’) in respect of certain offenders who are considered to be the most dangerous to the community. The amendments to the Act were part of a suite of justice reforms in 2017.

This post focuses on three main changes to the scheme being its expanded breadth, a change to the threshold test and the inclusion of community safety as the paramount consideration for the Court when making decisions under the Act. Other changes relevant to the application of the Act and its procedure are noted at the end of the article.

Continue reading “Amendments to the Crimes (High Risk Offenders) Act 2006”

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017: The Crash Course

By Sophie Coulson


The Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (“The Act”) changes the committal process as we currently know it and amends the sentencing discounts available for guilty pleas. It is expected to commence on 30 April 2018.

This post is not a comprehensive guide to the new legislation. It is intended to be a summary for the time poor practitioner. The legislation and Second Reading Speech of Attorney General, Mark Speakman, should be considered in full.

The Act amends committal procedures currently set out in Part 3 of the Criminal Procedure Act 1986 for proceedings commenced after the new legislation commences. The role of the Magistrate shifts from assessing the sufficiency of the prosecution evidence to facilitating effective negotiations between the parties earlier in the court process. The Act retains the statutory basis to apply to cross-examine prosecution witnesses [ss.82 to 92]. The same tests apply in considering applications made pursuant to the current sections 91 and 93 Criminal Procedure Act (to be replaced by sections 82 to 84).

The Act also amends the Crimes Sentencing Procedure Act 1999 (“CSPA”) introducing mandatory caps on sentencing discounts given by Judges for the utilitarian benefit of a guilty plea.

The new scheme follows the report of the NSW Law Reform Commission titled “Encouraging Appropriate Early Guilty Pleas”. The Act will, eventually, work alongside two associated bills, being the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Bill 2017 and the Crimes (High Risk Offenders) Amendment Bill 2017.

Continue reading “Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017: The Crash Course”

The Role of Prosecution and Defence INTERVIEW WITH KARA SHEAD SC

By Hallie Warnock

Last year I was fortunate enough to interview Kara Shead SC who is currently a Deputy Director of Public Prosecutions. Aside from working in prosecution-related roles for over 20 years, Kara Shead SC also was a Deputy Senior Public Defender. As a result she has gained valuable insight from working for both prosecution and defence – some of which she shared for the interview.

HW: Can you start off by telling us a bit about yourself and your career in criminal law? Continue reading “The Role of Prosecution and Defence INTERVIEW WITH KARA SHEAD SC”

Sentencing reforms: substantial changes to available sentencing orders

By Amanda Jamieson

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 received assent on 24 October 2017 and is awaiting proclamation. The amendments are anticipated to commence later this year. The amendment Act represents a substantive change to the NSW sentencing regime. It builds on a comprehensive report published by the NSW Law Reform Commission in July 2013 titled ‘Sentencing’.

All section numbers referred to in this post in brackets are to provisions of the Crimes (Sentencing Procedure) Act 1999 as amended or inserted by the amendment Act.

The changes in a nutshell

First and foremost, suspended sentences will be abolished. Home detention and community service orders will no longer be available as separate penalties. Bonds (under ss 9, 10(1)(b)) will no longer be available. [Sections 10(1)(a) and 10A will remain].

Intensive corrections orders (ICOs) will be expanded and strengthened and two new sentencing orders will be introduced: Community corrections orders (CCOs) and Conditional release orders (CROs). Each of these sentencing options will carry two ‘standard’ (i.e. mandatory) conditions and may also carry additional and/or further conditions. Continue reading “Sentencing reforms: substantial changes to available sentencing orders”

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”

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*”