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Category Archives: Criminal Procedure
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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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.
Reference under s443A of the Criminal Code by the Attorney-General for the Northern Territory of Australia of the convictions of Alice Lynne Chamberlain and Michael Leigh Chamberlain
ON 15 SEPTEMBER 1988, Michael and Lindy Chamberlain were acquitted by the Northern Territory Court of Criminal Appeal, who quashed their earlier convictions.
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Illinois v Leopold & Loeb | 10 September 1924
ON 10 SEPTEMBER 1924, Nathan Leopold Jr and Richard Loeb were sentenced to 99 years imprisonment after being convicted of attempting to kidnap and murder a 14 year old boy.
Click to access Leopold_Loeb_Sentencing.pdf
Sydney, Australia
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Pearce v R [1998] HCA 57 | 10 September 1998
ON 10 SEPTEMBER 1998, the High Court of Australia delivered Pearce v R [1998] HCA 57; 194 CLR 610; 156 ALR 684; 72 ALJR 1416 (10 September 1998).
Where more than one offence contains the same elements of conduct, an offender should not be punished more than once for the overlapping elements. The punishment should reflect what the offender has done and should not be affected by how the offence is expressed: at [40].
There is no single correct sentence for a particular offence to be applied with mathematical precision. It is important for proper principle to be applied: at [46].
Sydney, Australia
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Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303 | 8 September 2004
ON 8 SEPTEMBER 2004, the NSW Court of Criminal Appeal delivered Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No. 3 of 2002) [2004] NSWCCA 303.
The NSW Attorney General made an application to the Court of Criminal Appeal seeking a guideline judgment for sentencing of offenders convicted of high range drink driving. The Attorney General held a concern that too many offenders were receiving leniency by way of s10 orders dismissing or conditionally discharging the offence without a conviction being recorded.
The guideline identifies:
- Circumstances in which s10 orders will be appropriate or inappropriate.
- An “ordinary case” of high range drink driving (in which a s10 order will rarely be considered appropriate).
- Factors that increase the moral culpability of an offender.
- Appropriate penalties in circumstances of high moral culpability.
The actual guideline is as follows:
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender’s licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
(ii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include:
(a) the nature of the offender’s employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Crimes (Sentencing Procedure) Act will rarely be appropriate;
(ii) an order under s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Pro¬cedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than impris¬onment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate
Sydney, Australia
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Mental Health (Forensic Provisions) Act 1990 (NSW) | 3 September 1990
ON 3 SEPTEMBER 1990, the NSW Mental Health (Forensic Procedures) Act 1990 (formerly known as the Mental Health (Criminal Procedure) Act 1990) commenced.
http://www.austlii.edu.au/au/legis/nsw/consol_act/mhpa1990355
The significant provisions are found in Part 3, specifically s32.
MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 32
Persons suffering from mental illness or condition
32 Persons suffering from mental illness or condition
(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:
(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):
(i) developmentally disabled, or
(ii) suffering from mental illness, or
(iii) suffering from a mental condition for which treatment is available in a mental health facility,
but is not a mentally ill person, and
(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,
the Magistrate may take the action set out in subsection (2) or (3).
(2) The Magistrate may do any one or more of the following:
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013 ,
(c) make any other order that the Magistrate considers appropriate.
(3) The Magistrate may make an order dismissing the charge and discharge the defendant:
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or
(c) unconditionally.
(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.
(3B) If the defendant fails to appear, the Magistrate may:
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.
(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer within the meaning of the Criminal Procedure Act 1986 to issue a warrant for the defendant’s arrest.
(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.
(4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.
(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).
(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.
(5) The regulations may prescribe the form of an order under this section.
Sydney, Australia
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Cheatle v R [1993] HCA 44 | 26 August 1993
ON 26 AUGUST 1993, the High Court of Australia delivered Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 (26 August 1993).
http://www.austlii.edu.au/au/cases/cth/HCA/1993/44.html
South Australian law allowed for a majority verdict of 10 or 11 jurors. Mr and Mrs Cheatle were convicted by a majority verdict of a South Australian jury for the indictable offence of conspiracy to defraud the Commonwealth. The High Court allowed an appeal, holding that s80 of the Constitution required unanimous verdicts for Commonwealth indictable offences. A new trial was ordered.
Sydney, Australia
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