Chiro; Harma and Special Verdicts

By Sophie Coulson

On 13 September 2017, the High Court of Australia heard two appeals considering the operation of s 50(1) Criminal Law Consolidation Act 1935 (CLCA) These two appeals, Chiro v The Queen  and Hamra v The Queen, are considered in detail below.

Continue reading “Chiro; Harma and Special Verdicts”

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The Queen v Holliday [2017] HCA 35 (“R v Holliday”)

By Thomas Buckingham

Holliday was charged with, inter alia, inciting the kidnapping of two witnesses in relation to crimes for which he was in custody awaiting sentence. He was tried on indictment in the ACT Supreme Court before a Judge and Jury. The Crown case at trial was that while Holliday was in jail he urged a fellow inmate to procure another or others to carry out his plan for the witnesses to be kidnapped and forced to read pre-prepared statements on camera, recanting their evidence against him. The fellow inmate did not follow-through, instead reporting Holliday to the authorities. Holliday was ultimately convicted of one count of attempting to pervert the course of justice and two counts of inciting kidnapping.

Under s 47 of the ACT Criminal Code a person commits the offence of Continue reading “The Queen v Holliday [2017] HCA 35 (“R v Holliday”)”

The relevance of an accused’s flight to a consciousness of guilt: Grogan v The Queen [2016] NSWCCA 168

By Anastasia Kalos

In a unanimous judgment of the NSW Court of Criminal Appeal, Ward and RA Hulme JA and  Davies J held that evidence of the appellant’s flight was admissible as it was “very relevant” to the issue of whether the appellant assaulted the deceased, despite the fact that the death of the deceased occurred 3 months after the assault. Continue reading “The relevance of an accused’s flight to a consciousness of guilt: Grogan v The Queen [2016] NSWCCA 168”

The Queen v Dookheea [2017] HCA 36

By Nicholas Morrissey 

In The Queen v Dookheea [2017] HCA 36, the High Court considered whether it was an error of law productive of a substantial miscarriage of justice for the trial judge in a murder trial to direct the jury that the Crown did not have to satisfy the jury of the accused’s guilt ‘beyond any doubt, but beyond reasonable doubt.’ The judgment doesn’t break any new ground, but acts as a reminder of the wise course of action in directing a jury on the criminal standard of proof. Continue reading “The Queen v Dookheea [2017] HCA 36”

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”

Section 25A Assault causing death

By Maeve Curry, Barrister, Sir Owen Dixon Chambers

 

The “one punch” laws

Section 25A was inserted into the Crimes Act 1900 (NSW) with alarming speed, following intensifying media coverage and public campaigns for tougher laws and mandatory sentencing to tackle alcohol-fuelled violence. However, a recent statutory review of section 25A reveals that the new law remains largely untested.

On 21 January 2014 former NSW Premier Barry O’Farrell announced his 16-point plan. On 30 January 2014, without any known public consultation or input from the NSW Law Reform Commission (NSWLRC), and barely over a week later, a Bill was passed and introduced, with a promise to have “one punch” laws up and running for the weekend. The next day section 25A came into effect. Continue reading “Section 25A Assault causing death”