Category Archives: Criminal Law

Criminal Law, Defences, LAW FIRM

R v Dudley and Stephens (“Lifeboat case”) (1884) 14 QBD 273 | 9 December 1884

ON 9 DECEMBER 1884, the Queens Bench Division of the High Court of Justice delivered R v Dudley and Stephens (1884) 14 QBD 273.

http://cyber.law.harvard.edu/eon/ei/elabs/majesty/stephens.html

In 1848, Sydney Barrister John Henry Want purchased an English 52 foot yacht, “The Mignonette”. Want arranged for the yacht to be sailed from England to Australia by Tom Dudley (Captain), Edwin Stephens, Edmund Brooks and Richard Parker.

On 18 May 1884, Mignonette set sail from Southampton to Sydney. On 5 July, somewhere near the Cape of Good Hope, the yacht was struck by a wave and sank. The crew abandoned ship to the lifeboat with only turnips and water.

On 29 July, the lifeboat was rescued by “The Montezuma”. The crew of the Montezuma discovered that Richard Parker had been eaten by Dudley, Stephens and Brooks. The survivors were taken to Falmouth, Cornwall, where they were interviewed about incident. Dudley and Stephens made statements to the effect that on about 25 July, Parker was close to death so they decided to kill him so they could, as well as eat his flesh, preserve his blood to drink. Brooks denied being party to the killing but admitted to eating part of Parker.

Dudley and Stephens justified their actions out of necessity to preserve their own lives. They maintained that this justification was an ancient custom of the high seas.

Dudley and Stephens were charged and tried. The matter ended up before the Queens Bench of the High Court in London.

Dudley and Stephens were convicted of murder. The court held that the law did not recognise a defence of necessity, either in precedent nor morality.

Per Lord Coleridge CJ:

“Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity’. But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it…..”

“It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No’”

Dudley and Stephens were sentenced to death. In response to public pressure, the Government commuted the sentence to a 6 month term of imprisonment on the grounds that the trial court had withheld the verdict of manslaughter from the jury. Dudley and Stephens were released from prison on 20 May 1885.

John Henry Want later became the Attorney General for New South Wales from 1894 to 1899.

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Longman v R [1989] HCA 60 | 6 December 1999

ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).

http://www.austlii.edu.au/au/cases/cth/high_ct/168clr79.html

Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.

The High Court held that what the jury was told was not sufficient.

Per Brennan, Dawson and Toohey JJ at [30]:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.

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Administrative Law, Criminal Law

Cunneen v Independent Commission Against Corruption [2014] NSWCA 421

ON 5 DECEMBER 2014, the NSW Court of Appeal delivered Cunneen v Independent Commission Against Corruption [2014] NSWCA 421.

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=176019

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Sydney, Australia

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM

Crampton v R [2000] HCA 60 | 23 November 2000

ON 23 NOVEMBER 2000, the High Court of Australia delivered Crampton v R [2000] HCA 60; 206 CLR 161; 176 ALR 369; 75 ALJR 133 (23 November 2000).

http://www.austlii.edu.au/au/cases/cth/HCA/2000/60.html

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Constitutional law, Criminal Law

Kuczborski v Queensland [2014] HCA 46

ON 14 NOVEMBER 2014, the High Court of Australia delivered Kuczborski v Queensland [2014] HCA 46 (14 November 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/46.html

A Hells Angels member brought proceedings challenging the constitutional validity of Queensland legislation enacted to disrupt the operations of motorcycle clubs and associations.

The plaintiff sought declarations that the legislation is invalid as it infringes the the principle of Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 by conferring functions on the Queensland courts that are incompatible with their institutional integrity and therefore contrary to Chapter III of the Constitution.

The High Court held unanimously that the plaintiff did not have the standing to seek the declarations as he had not been charged with or committed any offence under the legislation and therefore was not restricted in his freedom.

The court also held that the laws do not impose an extraordinary imposition on the Queensland judiciary.

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Criminal Law, LAW FIRM

R v Wald | 28 October 1971

ON 28 OCTOBER 1971, Judge Levine of the NSW District Court delivered R v Wald.

It was ruled that an abortion performed by a medical practitioner is lawful in New South Wales if there is “any economic, social or medical ground or reason” for the practitioner to hold an honest and reasonable belief that a termination at any stage of the pregnancy was required to avoid “serious danger to the pregnant woman’s life or to her physical or mental health”.

Per Levine DCJ at 29:

“In my view it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health. It may be that an honest belief be held that the woman’s mental health was in serious danger at the very time 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 pregnancy, if uninterrupted. In either case such a conscientious belief on reasonable grounds would have to be negatived before an offence under s 83 of the Act could be proved.”

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Criminal Law, Damages, LAW FIRM, Torts

CES and Anor v Superclinics (Australia) Pty Ltd and Ors (1995) 38 NSWLR 47 | 27 October 1995

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 s83 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, Discrimination Law, Human Rights, Law reform

Criminal Records Amendment (Historical Homosexual Offences) Bill 2014

ON 23 OCTOBER 2014, the NSW Parliament passed the Criminal Records Amendment (Historical Homosexual Offences) Bill 2014.

The legislation amends the Criminal Records Act 1991 (NSW) by providing a process for extinguishing convictions for certain consensual homosexual conduct that was illegal in New South Wales up until 1984. The process also covers conduct that ceased to be an offence when the unequal age of consent laws were changed in 2003.

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Appeals, Criminal Law, Criminal Procedure, LAW FIRM, United Kingdom

Guildford Four released | 19 October 1989

ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.

http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm

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Criminal Law, Criminal Procedure, LAW FIRM

Practitioner’s Guide to Criminal Law

The NSW Young Lawyers’ Practitioner’s Guide to Criminal Law is an invaluable resource for users of the criminal justice system in NSW. Visit http://www.crimlawguide.com.au/

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