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?*”

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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?”

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”

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”