ON 23 JUNE 2014, Australian Al-Jazeera journalist Peter Greste was convicted by an Egyptian court of aiding the Muslim Brotherhood. He was sentenced to seven years imprisonment.
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Category Archives: Criminal Law
Wainohu v New South Wales [2011] HCA 24 | 23 June 2011
ON 23 JUNE 2011, the High Court of Australia delivered Wainohu v New South Wales [2011] HCA 24 (23 June 2011).
http://www.austlii.edu.au/au/cases/cth/HCA/2011/24.html
The NSW Crimes (Criminal Organisations Control) Act 2009 was held to be constitutionally invalid on because the absence of an obligation for a Supreme Court justice to give reasons for a declaration is contrary to the proper exercise of the court’s jurisdiction.
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M’Naughten’s case | 19 June 1843
ON 19 JUNE 1843, the House of Lords delivered M’Naughten’s case.
The accused was found not guilty on the grounds of insanity. The decision set out the common law principles to be applied when making a defence of insanity.
http://www.bailii.org/uk/cases/UKHL/1843/J16.html
Sydney, Australia
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National Consumer Fraud Week
National Consumer Fraud Week 16-22 June 2014 commences today, coinciding with the release of the ACC’s report on Targeting Scams: http://www.accc.gov.au/publications/targeting-scams-report-on-scam-activity/targeting-scams-report-of-the-accc-on-scam-activity-2013.
The initiative of the Australian Consumer Fraud Taskforce aims to raise awareness about online scammers. For more information see: http://www.scamwatch.gov.au/content/index.phtml/tag/fraudweek2014/
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Bunning v Cross [1978] HCA 22
ON 14 JUNE 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).
http://www.austlii.edu.au/au/cases/cth/HCA/1978/22.html
A court has the discretion to admit or exclude evidence that is improperly or illegally obtained. In exercising its discretion, the court is to weigh up the competing public requirements of (a) bringing to criminal wrongdoing to conviction and (b) protecting all individuals from unfair and unlawful treatment. The onus is on the accused to prove misconduct and justify the exclusion.
Sydney, Australia
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Miranda v Arizona 384 US 436
On 13 June 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).
http://supreme.justia.com/cases/federal/us/384/436/
The Court held that in order to protect the constitutional privilege against self incrimination under the 5th amendment of the US Constitution, an accused in custody must be informed of his or her right to remain silent; that anything he or she says may be used against him or her in court; and that he or she has the right to consult a lawyer who may present during any interrorgation.
The court held that the prosecution may not use statements of the accused whilst in custody unless the prosecution can show that they informed the accused of their right to silence and the right to a lawyer and that the accused understood this and voluntarily waved such rights in making such a statement.
Miranda warnings are typically phrased as follows:
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”
The rule in Miranda v Arizona is specific to the United States and does not apply in Australia. There is no 5th amendment privilege against self-incrimination, though the High Court of Australia has held that under the Australian common law, no inference may be drawn from an accused’s silence: Petty & Maiden v R [1991] HCA 34; (1991) 173 CLR 95 (5 September 1991).
http://www.austlii.edu.au/au/cases/cth/HCA/1991/34.html
See also: RPS v R [2000] HCA 3; 199 CLR 620; 168 ALR 729; 74 ALJR 449 (3 February 2000).
http://www.austlii.edu.au/au/cases/cth/HCA/2000/3.html
However, if an accused choses to answer some questions but not others, inferences may be drawn against the questions the accused did not answer.
In limited circumstances, some questions must be answered, such as in traffic matters. One must give their name and address if they are to receive bail.
The NSW Evidence Act 1995 when first enacted said that no adverse inference could be drawn from the exercise of the right to silence by the accused. On 20 March 2013, the Act was amended so that the accused is cautioned with: “it may harm your defence if you fail to mention something now that you later rely on at trial”.
NSW law enforcement officers have traditionally given the following warning: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”
Since the amendment of the Evidence Act, the NSW warning is: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”
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Eastman Inquiry
ON 29 MAY 2014, the Report of the Inquiry into the conviction of David Harold Eastman for the murder of Colin Stanley Winchester was delivered to the Registrar of the ACT Supreme Court.
The report concluded that Mr Eastman suffered a substantial miscarriage of justice because he did not receive a fair trial according to the law and was not given a fair chance of acquittal. The report recommends that Mr Eastman’s murder conviction should be quashed.
Click to access Eastman_Inquiry_-_Board_of_Inquiry_Redacted_Full_Report_29_May_2014.pdf
http://www.eastmaninquiry.org.au/
BA, LLB, Grad Cert Leg Prac, Acc Spec Lawyer
Lee v R; Lee v R [2014] HCA 20
ON 21 MAY 2014, the High Court of Australia delivered Lee v The Queen; Lee v The Queen [2014] HCA 20 (21 May 2014).
http://www.austlii.edu.au/au/cases/cth/HCA/2014/20.html
The High Court allowed two appeals, ordering that convictions be quashed with respect to various drug and firearms offences.
Before the trial, the appellants had given evidence before the NSW Crime Commission and such material was subject of a direction that it not be published if publication would prejudice a fair trial. Contrary to s13(9) of the New South Wales Crime Commission Act 1985, the material was published to members of the NSW Police Force and officers of the NSW Director of Public Prosecutions before the trial.
The appellants contended that the unlawful publication amounted to a miscarriage of justice under s6(1) of the NSW Criminal Appeal Act 1912.
The High Court held that the purpose of s13(9) was to protect a fair trial of a person who may later be charged with offences investigated by the Crime Commission. The later possession and possible use of the material by the prosecution was unfair, shifting the balance of power to the prosecution and departing from the kind of fair trial that the system of justice provides (as the court referred to in X7 v Australian Crime Commission [2013] HCA) and that s13(9) aims to protect.
The court said that the prosecution ought to have alerted the trial judge that it had come into possession of this material so that the judge could make directions to ensure that the trial was not affected.
Sydney, Australia
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New Bail Act
ON 20 MAY 2014, the NSW Bail Act 2013 commenced.
McKellar v DPP [2014] NSWSC 459
ON 23 APRIL 2014, Justice Adamson of the Supreme Court of NSW delivered McKellar v DPP [2014] NSWSC 459.
The court quashed a Local Court conviction and sentence to a defendant who the Magistrate determined was not present (and dealt with her case as though she was not present) despite her solicitor being present.
http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=171034
Sydney, Australia
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