Director of Public Prosecutions (NSW) v Jones, Dillon Michael [2017] NSWCCA 164

By Kartini Saddington

In DPP v Jones, Dillon Michael [2017] NSWCCA 164, the NSW Court of Criminal Appeal responded to questions of law referred  by his Honour Judge Colefax SC, under s 5B of the Criminal Appeal Act 1912 (NSW). These questions fell under three main categories: can a Local Court Magistrate revoke bonds imposed by a District Court judge; can a direction that a bond be called up before a particular judge be binding; and if the Local Court does not have jurisdiction to revoke District Court bonds, is the resultant sentence invalid? Continue reading “Director of Public Prosecutions (NSW) v Jones, Dillon Michael [2017] NSWCCA 164”

Wilson v DPP – Interpretation Act 1986 (NSW), ‘penal servitude’ and preservation of criminal liability under repealed provision

By Seppy Pour

In Wilson v DPP [2017] NSWCA 128, the Court of Appeal considered whether a repealed offence which imposed a maximum of five years of ‘penal servitude’ was considered a ‘serious indictable offence’ for the purposes of the Crimes Act 1900 (NSW).

Background

The appellant, Philip Edward Wilson, was charged with an offence under Crimes Act 1900 (NSW) (Crimes Act) s 316(1). Section 316(1) makes it an offence to fail without reasonable excuse to bring material information to police where a person knows or believes that another person has committed a ‘serious indictable offence’. It was alleged that between 2004 and 2006, the appellant failed to bring material information to police relating to an indecent assault on a boy aged 10 years contrary to Crimes Act s 81. The indecent assault was allegedly committed in 1971 by a Catholic priest, Father Fletcher. The offence under s 81 was repealed in 1984.

The appellant sought to have the court attendance notice quashed at first instance on the basis that the offence was not a ‘serious indictable offence’ for the purposes of the Crimes Act. This application was dismissed. An appeal from that order to a single judge of the Supreme Court was dismissed.

The appellant appealed from that decision to the Court of Appeal (NSWCA). The issue before the NSWCA was whether, at the time the appellant was alleged to have withheld information relevant to Father Fletcher’s alleged offence, s 81 was a ‘serious indictable offence’ for the purposes of the Crimes Act. Continue reading “Wilson v DPP – Interpretation Act 1986 (NSW), ‘penal servitude’ and preservation of criminal liability under repealed provision”

Issa v R: application of De Simoni principle

By Seppy Pour

On 2 August 2017, the NSWCCA handed down its decision in Issa v R [2017] NSWCCA 188. The case considered, inter alia, a rather unusual application of the De Simoni principle.

Background

The appellant was found guilty of five counts of intentionally damaging property by means of fire and five counts of doing an act with intent to pervert the course of justice. During the course of the trial, the appellant also pleaded guilty to one count of recklessly cause grievous bodily harm in company. Zahra DCJ imposed an aggregate sentence of 12 years with a non-parole period of 9 years. In coming to his determination, his Honour took into account the fact that the damage to properties by fire harboured the possibility of injury to others in the vicinity of the properties. Continue reading “Issa v R: application of De Simoni principle”

Smith v The Queen; The Queen v Afford

In Smith v The Queen; The Queen v Afford the High Court has held that reasoning adopted in Kural regarding inferring intent to import drugs is applicable to offences under s 307.1 of the Commonwealth Criminal Code (the Code). In doing so, the High Court has resolved a difference between the Victorian Supreme Court of Appeal (VSCA) and the NSWCCA.

Continue reading “Smith v The Queen; The Queen v Afford”

An Act that is ‘always speaking’: Aubrey v The Queen [2017] HCA 18 (10 May 2017)

‘Always speaking’ approach to statutory construction and contemporary understandings of GBH

By Suzanne Martinez

Introduction

The High Court, by a 4:1 majority, dismissed the appellant’s appeal against a decision of the NSWCCA. The majority clarified the meaning of ‘inflict grievous bodily harm’ in a historical provision of the Crimes Act 1900 (NSW) (Crimes Act) that applied at the time of offending in 2004. Further, it was held that infliction of grievous bodily harm (GBH) did not require direct or indirect application of force and may be inflicted by the transmission of sexual disease. In 2007 and 2012 – after the offences were committed – the relevant provisions of the Crimes Act were substantially amended, and now similarly define GBH to include transmission of grievous bodily disease. Therefore, you ask, what contemporary relevance does this decision have?

Continue reading “An Act that is ‘always speaking’: Aubrey v The Queen [2017] HCA 18 (10 May 2017)”

It is a matter of interpretation: Pickering v The Queen [2017] HCA 17 (3 May 2017)

By Rhanda Taouk

In Pickering v The Queen [2017] HCA 17 the High Court, in two separate judgments, unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that the appellant was occasioned a miscarriage of justice as the trial judge had failed to leave to the jury the possible application of s 31(1)(c) of the Criminal Code (Q) (‘the Code’). Section 31(1) enables an accused in certain circumstances to be exculpated for an act or omission for which they would otherwise be criminally responsible. Section 31(2) provides exceptions to s 31(1).

Continue reading “It is a matter of interpretation: Pickering v The Queen [2017] HCA 17 (3 May 2017)”