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”

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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”

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”

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”

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)”