John Stratton SC’s Criminal Law Survival Kit is a useful online resource for lawyers and the public involved with the criminal justice system. Visit http://www.criminallawsurvivalkit.com.au/
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Category Archives: Criminal Law
Legal Issues Bulletins – NSW Department of Education & Communities
The NSW Department of Education & Communities from time to time publishes Legal Issues Bulletins.
As at 12 October 2014, there are 54 Legal Issues Bulletins. The bulletins, which are prepared as general information for officers of the department, cover issues such as criminal offences, confidentiality, power to search students, discipline, child protection, police interviews, accidents, personal injury, occupational health and safety, insurance and subpoenas. The bulletins may be accessed by visiting http://www.dec.nsw.gov.au/about-us/information-access/legal-issues-bulletins.
Sydney, Australia
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Jago v District Court of NSW | 12 October 1989
ON 12 OCTOBER 1989, the High Court of Australia delivered Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (12 October 1989).
http://www.austlii.edu.au/au/cases/cth/HCA/1989/46.html
Superior Courts “possess an inherent power to prevent their processes being used in a manner which gives rise to injustice”.
The inherent jurisdiction of the Superior Courts empowers them to order a permanent stay of proceedings to prevent an abuse of process. The power is to be exercised with fairness as the “touchstone”: per Mason at 31.
A permanent stay of proceedings will only be ordered in an “extreme case”: Per Mason CJ at 34.
Per Mason CJ at 33-34:
“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial…At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’…”
It is fundamental to the legal system that an accused be given a fair trial according to the law. The accused has “a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.”: per Deane at 56-57.
The five main considerations in determining whether or not proceedings should be stayed on the grounds of unfair delay are, per Deane J at 60:
- “the length of the delay”
- “reasons given by the prosecution to explain or justify the delay”
- “the accused’s responsibility for and past attitude to the delay”
- “proven or likely prejudice to the accused”
- “the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.”
Peter O’Grady, Lawyer
BA, LLB, Grad Cert Leg Prac, Acc Spec
Principal Solicitor, Legal Helpdesk
R v Jurisic [1998] NSWSC 423 | 12 October 1998
ON 12 OCTOBER 1998, the NSW Court of Criminal Appeal delivered R v Jurisic [1998] NSWSC 423 (12 October 1998).
http://www.austlii.edu.au/au/cases/nsw/NSWSC/1998/423.html
The court delivered a Guideline Judgment for NSW courts to follow when sentencing offenders for dangerous driving (occasioning death and grievous bodily harm). The judgment was the first of its kind in NSW, made in response to concerns about the consistency and adequacy of sentences for dangerous driving since the introduction of s52A of the Crimes Act 1900 (NSW) in 1994.
The Court of Criminal Appeal promulgated the following guidelines:
“1 A non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.
2 With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.
The period of three or two years, once the threshold of abandoning responsibility has been reached, is a starting point. The presence of additional aggravating factors, or their increased intensity, will determine the actual sentence.”
Spigelman CJ at CL at 228 quoted the following passage from Hunt CJ at CL in R v Musumeci (unrep, 30/10/97, NSWCCA):
“This court has held that a number of considerations which had to be taken into account when sentencing for culpable driving must also be taken into account when sentencing for this new offence of dangerous driving:
- 1. The legislature has always placed a premium upon human life, and the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.
- 2. The real substance of the offence is not just the dangerous driving; it is the dangerous driving in association with the taking of a human life.
- 3. Such is the need for public deterrence in this type of case, the youth of any offender is given less weight as a subjective matter than in other types of cases.
- 4. The courts must tread warily in showing leniency for good character in such cases.
- 5. So far as youthful offenders of good character who are guilty of dangerous driving, therefore, the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime, and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances.
- 6. Periodic detention has a strong element of leniency built into it and, as presently administered, it is usually no more punitive than a community service order.
- 7. The statement made by this court in relation to the previous offence of culpable driving — that it cannot be said that a full-time custodial sentence is required in every case — continues to apply in relation to the new offence of dangerous driving. As that offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence (although that does not mean that a non-custodial sentence is ordinarily appropriate in such a case), but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence.”
The guideline has been reformulated in R v Whyte and other subsequent decisions.
Sydney, Australia
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Kentwell v The Queen [2014] HCA 37; O’Grady v The Queen [2014] HCA 38
ON 9 OCTOBER 2014, the High Court of Australia delivered Kentwell v The Queen and O’Grady v The Queen.
http://www.austlii.edu.au/au/cases/cth/HCA/2014/37.html
http://www.austlii.edu.au/au/cases/cth/HCA/2014/38.html
NSW Court of Criminal Appeal had refused two applications for extension of time to appeal against sentences by applying the test used in Abdul v The Queen which requires the court to ask whether or not a refusal would cause a substantial miscarriage of justice by the sentence.
The High Court allowed appeals against the dismissals, holding that Abdul was wrongly decided as it confined the use of the court’s discretion. The High Court held that the Court of Criminal Appeal has a wide discretion that is to be exercised by consideration of what the interests of justice require in the particular case rather than whether or not a refusal would cause a substantial miscarriage of justice.
Sydney, Australia
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Kentwell v The Queen [2014] HCA 37; O’Grady v The Queen [2014] HCA 38
Kentwell v The Queen
http://www.austlii.edu.au/au/cases/cth/HCA/2014/37.html
O’Grady v The Queen
http://www.austlii.edu.au/au/cases/cth/HCA/2014/38.html
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Tajjour v State of New South Wales [2014] HCA 35
ON 8 OCTOBER 2014, the High Court of Australia delivered Tajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South WalesTajjour v State of New South Wales; Hawthorne v State of New South Wales; Forster v State of New South Wales
Click to access hca-35-2014-10-08.pdf
http://www.austlii.edu.au/au/cases/cth/HCA/2014/35.html
The High Court upheld the constitutional validity of s93X of the Crimes Act 1900 (NSW).
Section 93X makes it an offence for a person to habitually consort with convicted offenders and consort with those convicted offenders after being given an official warning in relation to each of those offenders.
The section was challenged on the basis that it impermissibly burdens the implied constitutional freedom of communication concerning government and political matters.
The court determined that the section did not impermissibly burden the implied constitutional freedom.
The court accepted that there is a burden, but held the section was not invalid as it was “reasonably appropriate and adapted, or proportionate, to serve the legitimate end of the prevention of crime in a manner compatible with the maintenance of the constitutionally prescribed system of government”.
Sydney, Australia
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Neal v R | High Court of Australia | 24 September 1982
ON 24 SEPTEMBER 1982, the High Court of Australia delivered Neal v R [1982] HCA 55; (1982) 149 CLR 305 (24 September 1982).
http://www.austlii.edu.au/au/cases/cth/HCA/1982/55.html
The ethnic or other background of an offender may be a material fact to be taken into account in sentencing.
New Alcohol Interlock Laws
From 1 FEBRUARY 2015, new drink driving laws come into effect. It will be mandatory for courts to order drivers convicted of high range, repeat and other serious drink driving offences with a minimum license disqualification and a minimum 12 month participation in the alcohol interlock program.
For further information go to:
- New Alcohol Interlock Laws
- Factsheet on Mandatory Alcohol Interlock Program
- Factsheet on Increased Traffic Offender Penalties
- Factsheet for Legal Practitioners
- Guardian Interlock
- Draeger Safety Pacific
- Alcohol Interlock Program – Information for Participants
Sydney, Australia
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Revised Legal Aid General Criminal Law Panel Practice Standards
Revised Legal Aid General Criminal Law Panel Practice Standards take effect from 15 September 2014.
Sydney, Australia
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