Category Archives: Criminal Law

Criminal Law, Criminal Procedure, LAW FIRM, Sentencing

Postiglione v R [1997] HCA 26

ON 24 JULY 1997, the High Court of Australia delivered Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; (1997) 145 ALR 408; (1997) 71 ALJR 875 (24 July 1997).

http://www.austlii.edu.au/au/cases/cth/HCA/1997/26.html

The decision is an exposition of the principle of due proportionality set out in the earlier decision of the court in Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984).

Different sentences may be imposed upon like offenders to reflect different degrees of culpability or different circumstances of the offenders.

At 302, Dawson and Gaudron JJ said:

“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.”

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Constitutional law, Criminal Law, Human Rights, LAW FIRM, Law reform, Legislation

Euthanasia Laws Act 1997

ON THIS DAY in 1997 the Commonwealth parliament passed the Euthanasia Laws Act 1997 which overturned the Northern Territory legislation that legalised voluntary euthanasia for the terminally ill.

http://www.austlii.edu.au/au/legis/cth/num_act/ela1997161/

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Peter O’Grady

 

Criminal Law, LAW FIRM, Legislation, Privacy, United States

1996 | Megan’s Law

ON THIS DAY in 1996, US President Clinton signed legislation known as Megan’s Law, an Act “to amend the Violent Crime Control and Law Enforcement Act of 1994 to require the release of relevant information to protect the public from sexually violent offenders”.

Under the legislation, states are required to notify communities when a convicted sex offender moves into a neighbourhood.

Click to access PLAW-104publ145.pdf

Criminal Law, Damages, LAW FIRM, Torts

CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47

ON 27 OCTOBER 1995, the NSW Court of Appeal delivered CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47.

The plaintiff (CES) sought civil damages for the loss of opportunity to terminate a pregnancy arising from the defendants’ alleged breach of duty of care by failing to detect a pregnancy . Newman J of the Supreme Court of NSW found in favour of the defendants, not satisfied that the evidence justified a finding that termination of pregnancy would have been legal in accordance with Levine J’s test in R v Wald.

The NSW Court of Appeal upheld an appeal, ordering a new trial. The Court of Appeal held that the evidence did not justify a finding than a termination of pregnancy would have been illegal.

The Wald test, per Levine DCJ (at 29) provides:

“It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although not then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s33 of the Act could be proved.”

Kirby P in CES and Anor v Superclinics (Australia) Pty Ltd and Ors said that the Wald test “allows a consideration of the economic demands on the pregnant woman and the social circumstances affecting her health when considering the necessity and proportionality of a termination.”

Kirby P said that there is “no logical basis for limiting the honest’ and reasonable expectation of such a danger to the mother’s psychological health to the period of the currency of the pregnancy alone.”

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Ridgeway v R [1995] HCA 66

ON 19 APRIL 1995, the High Court of Australia delivered Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 (19 April 1995).

http://www.austlii.edu.au/au/cases/cth/HCA/1995/66.html

A conviction for drug importation was quashed after the High Court excluded certain evidence that was unlawfully obtained by the police in a controlled operation. However, the court did not go as far as stating that a defence of entrapment exists under Australian law if a person voluntarily and with the necessary intent commits an unlawful act induced by another.

The Commonwealth Parliament subsequently amended the Crimes Act to make controlled operations legal in order to protect such evidence from being ruled inadmissible.

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Pfennig v R [1995] HCA 7

ON 17 FEBRUARY 1995, the High Court of Australia delivered Pfennig v R [1995] HCA 7; (1995) 182 CLR 461; (1995) 127 ALR 99; (1995) 69 ALJR 147 (17 February 1995).

http://www.austlii.edu.au/au/cases/cth/high_ct/182clr461.html

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Appeals, Criminal Law, Criminal Procedure, LAW FIRM

M v R [1994] HCA 63

ON 13 DECEMBER 1994, the High Court of Australia delivered M v R [1994] HCA 63; (1994) 181 CLR 487; (1994) 126 ALR 325; (1994) 69 ALJR 83 (13 December 1994).

http://www.austlii.edu.au/au/cases/cth/HCA/1994/63.html

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Criminal Law, Criminal Procedure, Human Rights, LAW FIRM

Coco v R

ON THIS DAY in 1994, the High Court of Australia delivered Coco v R [1994] HCA 15; (1994) 179 CLR 427; (1994) 120 ALR 415; (1994) Aust Torts Reports 81-270; (1994) 68 ALJR 401; (1994) 72 A Crim R 32 (13 April 1994).

The court restated the principle that it is presumed that parliament does not intend to limit fundamental rights, freedoms or immunities unless it does so in clear terms.

Per Mason CJ, Brennan, Gaudron and McHugh JJ:

“The courts should not impute to the legislature an intention to
interfere with fundamental rights. Such an intention must be clearly
manifested by unmistakable and unambiguous language.”

http://www.austlii.edu.au/au/cases/cth/HCA/1994/15.html

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Peter O’Grady
Criminal Law, Criminal Procedure, LAW FIRM

Edwards v R [1993] HCA 63

ON 17 NOVEMBER 1993, the High Court of Australia delivered Edwards v R [1993] HCA 63; (1993) 178 CLR 193; (1993) 68 A Crim R 349 (17 November 1993).

http://www.austlii.edu.au/au/cases/cth/high_ct/178clr193.html

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Weissensteiner v R [1993] HCA 65

ON 17 NOVEMBER 1993, the High Court of Australia delivered Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217; (1993) 68 A Crim R 251 (17 November 1993).

http://www.austlii.edu.au/au/cases/cth/high_ct/178clr217.html

The accused’s election to exercise the right to silence is not free from consequences. In this case, the majority of the High Court held that the trial judge did not make an error by directing the jury that the prosecution’s inferences could be more safely drawn when “the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge”.

Mason CJ, Deane and Dawson JJ said: “Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them.”

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