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”

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

By Sophie Coulson

Introduction

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”

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”

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”

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?”