Recent decisions for Court of Criminal Appeal

Catchwords:

CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Driving offences – Dangerous driving occasioning death – Dangerous driving occasioning grievous bodily harm – Where Crown concedes that trial judge misdirected jury as to onus and standard of proof in respect of voluntariness – Where real prospect that jury did not properly consider whether Crown proved beyond reasonable doubt that applicant not driving involuntarily due to epileptic seizure – Appeal allowed – Convictions quashed – Retrial ordered CRIME – Bail – Appeal bail – Where appeal against conviction successful – Bail not opposed – Bail granted subject to conditions

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Importation of border-controlled drug — Where the co-accused was the applicant’s abusive partner — Where the applicant was subordinate to her co-accused in the importations— Evidence of a non-financial motive — Whether the sentencing judge failed to take into account that the applicant was acting at the direction of an abusive partner in committing the offences in regard to general deterrence and denunciation — failure to make a finding as to moral culpability

Catchwords:

APPEALS — CRIME — appeal against conviction — sexually touching a child — 16 offences against 5 complainants — guilty verdicts returned in respect of 12 counts against 3 complainants — unreasonable verdict — whether it was open to jury to be satisfied of the applicant’s guilt in respect of those counts — discrepancies and conflicts in evidence of complainants — open to jury to resolve evidentiary issues — counts proved beyond reasonable doubt

Catchwords:

CRIME – conspiracy – conspiracy to commit common law offence of wilful misconduct in public office – elements of conspiracy – element of misconduct created by conflict between self-interest and public duty – need to establish causal element – whether agreement to do undertake a particular act(s) required – whether each participant in the conspiracy must agree to carry out act(s) in furtherance of unlawful purpose – whether motive of parties to be established – need to prove parties agreed as to quality of misconduct – conduct to be serious and meriting criminal punishment CRIMINAL PROCEDURE – elements of a conspiracy – each element and fact that are necessary links in the chain to conviction to be established beyond reasonable doubt – whether Shepherd direction required CRIMINAL PROCEDURE – judge alone trial – nature of warnings – warning to be “taken into account” – whether to be recorded in reasons – application of Criminal Procedure Act 1986 (NSW), s 133(3) CRIMINAL PROCEDURE – conviction – appeal – verdict unreasonable or not supported by the evidence – appeal court to conduct independent assessment of evidence – consideration of all circumstantial evidence – relevance of reasons of trial judge – Criminal Appeal Act 1912 (NSW), s 6(1), first limb – challenge to individual findings – whether finding indispensable to conviction – standard of review EVIDENCE – admissions – hearsay rule – conduct of one conspirator admissible as admission by other conspirator – operation of Evidence Act 1995 (NSW), ss 57(2), 87(1)(c) EVIDENCE – admissions – lies – consciousness of guilt – need for direction in accordance with Edwards v The Queen EVIDENCE – unreliability – description of map – whether tantamount to identification evidence – whether warning required under Evidence Act 1995 (NSW), s 165(2)

Catchwords:

CRIME — Appeals — Appeal against conviction and sentence — Murder MENTAL HEALTH — Criminal proceedings — Defence of mental health impairment — Special verdict of act proven but not criminally responsible — Where applicant diagnosed with schizophrenia after conviction

Catchwords:

SENTENCING — relevant factors on sentence — whether sentencing judge failed to consider, or mistook the facts in relation to, pressure exerted by the offender’s mother and ex-partner to commence and continue social security fraud SENTENCING — resentence — relevant factors on sentence — relationship between moral culpability and objective seriousness — where duress is present — significance of general deterrence in sentencing for social security fraud

Catchwords:

CRIME – Appeals – Interlocutory appeal – Application for leave to appeal two interlocutory decisions pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) – Where trial judge refused applications to adjourn trial and recuse himself for apprehended and actual bias – Whether refusal of adjournment application infected by House v The King error –Whether recusal decision amenable to s 5F appeal

Catchwords:

CRIME — Appeals — Appeal against sentence

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of a count to which it did not attach – facts and circumstances of a Form 1 offence may be considered to provide context – no demonstrable error – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction —Directions of trial judge — Whether trial judge’s direction about alternative verdicts erroneously restricted the jury’s deliberations — No error — Leave refused SENTENCING — Appeals — Appeal against sentence — Relevant factors on sentence — Parity principle — Two co-offenders sentenced with benefit of pleas and application of the totality principle — Unorthodox method of achieving appropriate totality reduced the co-offenders’ sentences for the common offence — No justifiable sense of grievance arising from co-offenders’ sentences or from a related offender’s sentence

Catchwords:

CRIME – appeals – appeal against conviction – one count of sexual intercourse without consent – where parties had been drinking heavily all day – where complainant was in and out of consciousness – where applicant stopped attempted anal penetration when asked – applicant resumed vaginal penetration – complainant said “Stop” multiple times – non-consensual penile/vaginal intercourse continued for around two minutes – where complainant made an immediate complaint to her mother – other early complaints – where mother’s evidence disclosed an alleged complaint about anal penetration inconsistent with other evidence the complainant gave – whether trial judge erred by failing to direct jury on complaint evidence given by the complainant’s mother – where Crown case never concerned anal intercourse – trial judge’s summing up made clear penile/vaginal intercourse formed the basis of the charge – jury could have had no doubt what act constituted the offence – no miscarriage of justice – leave to appeal refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether by reason of inconsistencies and discrepancies the jury ought to have had a doubt – “inconsistencies” entirely explicable by reason of the complainant’s intoxication – central allegation consistent since time of first complaint – greater detail emerged in subsequent complaints – immediacy and distress of first complaint sufficient in nature and quality to satisfy jury beyond reasonable doubt CRIME – appeals – appeal against conviction – whether trial judge erred by failing to direct on the accuracy and reliability of the complainant’s account – where trial judge gave standard direction in accordance with s 293A of the Criminal Procedure Act – where applicant’s trial counsel sought no further direction – direction now proposed adds nothing to what the trial judge said – no miscarriage of justice – leave to appeal refused – appeal dismissed

Catchwords:

CRIME – appeals – purported appeal against interlocutory orders of Court of Criminal Appeal – orders made limiting applicant’s written submissions to 200 pages – whether in interests of justice to reconsider, vacate or amend orders – no reason shown to vary orders

Catchwords:

APPEAL – Criminal Appeal Act 1912 (NSW), s 5F(3A) – whether exclusion of evidence substantially weakens Crown case – HELD – ERISP met threshold test as it was inconsistent with version given by respondent in pretext call APPEAL – Evidence Act 1995 (NSW), s 90 – whether ERISP ought be excluded on grounds of unfairness – alleged unfairness constituted by investigating police not putting their knowledge of content of pretext call to respondent in ERISP – distinction between exclusion under ss 138 and 90 CRIMINAL LAW – no procedural fairness required of police when investigating alleged commission of criminal offence

Catchwords:

CRIME – Appeals – Appeal against conviction – armed robbery of bank – inadmissible and prejudicial material heard by jury – whether refusal to discharge jury a miscarriage of justice – whether substantial miscarriage of justice – test to be applied – appeal upheld.

Catchwords:

Criminal Law – appeal – application to vacate hearing – Legal Aid Commission Act 1979 section 57 – pending decision of Legal Aid Review Committee – hearing vacated

Catchwords:

CRIME – SENTENCE – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” – evidence taken into account on sentence in general mix of subjective features

Catchwords:

CRIME – appeals – appeal against sentence – where applicant sentenced to a term of imprisonment for 1 year and 10 months for cause grievous bodily harm reckless as to actual bodily harm – whether sentencing judge followed “three step process” – where applicant posed no risk to community safety - whether intensive correction order had to be imposed – whether intensive correction order should have been imposed – application of High Court decision in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Catchwords:

COURTS AND JUDGES — Jurisdiction — Supreme Court — whether decision to decline to grant a costs certificate pursuant to the Costs in Criminal Cases Act is an exercise of judicial or administrative power COURTS AND JUDGES — Jurisdiction — Supreme Court — where application for costs pursuant to Costs in Criminal Cases Act 1967 (NSW) determined by trial judge in the Supreme Court — whether appeal lies to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) — whether decision to decline application for costs certificate an interlocutory decision — whether decision to decline application for costs certificate is an order given or made in the proceeding for the prosecution of the offender on indictment CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 — whether public policy considerations weigh against grant of certificate to legally aided applicants — whether Court should exercise residual discretion to decline to grant certificate to legally aided applicants CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — whether it would have been unreasonable for a hypothetical prosecutor in possession of all the facts to institute proceedings against the applicant — no question of principle COSTS — Party/Party — Criminal cases — Statutory power to award costs — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967

Catchwords:

CRIMINAL LAW – sentencing – conspiracy to assist a person to engage in hostile activities in Syria – offence against Commonwealth Criminal Code – intensive correction order – requirement to take into account purposes of punishment in state sentencing act – whether requirement satisfied by considering matters in Commonwealth Crimes Act – where issue considered by Court of Criminal Appeal after current sentence imposed – error established despite otherwise impeccable and well-reasoned sentencing judgment – re-sentencing – where intensive correction order no longer appropriate – sentence reduced and applicant entitled to immediate release

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

Catchwords:

CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence

Catchwords:

CRIME – appeals – appeal against sentence – where sentencing judge found that community safety would be best served by the applicant serving his sentence in the community – where sentencing judge declined to order an ICO – whether a positive finding with respect to community safety mandates a sentencing judge to impose an ICO – consideration of Stanley v Director of Public Prosecutions (NSW) – whether sentencing judge impermissibly subordinated community safety to general deterrence

Catchwords:

CRIME – Appeals – Appeal against conviction – Where applicant found guilty by jury of common assault and one count of sexual intercourse without consent – Where applicant not found guilty of related offences – Whether guilty verdicts unreasonable with regard to available evidence and related not guilty verdicts – Guilty verdicts reasonable – Leave granted, but appeal dismissed CRIME – Appeals – Appeal against direction given to jury by trial judge - Whether trial judge misdirected jury – Where no objection made to direction during trial – Where appeal against direction is strictly protective where identical argument rejected in earlier decision of this Court

Catchwords:

CRIME – appeals – extension of time – where applicant pleaded guilty to maintaining an unlawful sexual relationship with a child – female teacher sexually abused one of her students between 1977 and 1979 – where underlying offences were contrary to s 81 of the Crimes Act 1900 (NSW) (since repealed) – where Court recently held in Lam v R [2024] NSWCCA 6 that s 81 was incapable of being committed by a female – applicant now seeks leave to appeal against conviction – where no application made to withdraw plea – extension of time granted CRIME – bail – bail pending appeal – whether pending proceedings – whether bail should be granted – necessity to demonstrate “special or exceptional circumstances” – where Crown accepts applicant more likely than not to succeed on appeal – where no bail concerns – conditional bail granted

Catchwords:

CRIME – appeals – appeal against sentence – offences of sexual intercourse with child – inclusion on form 1 of repealed offence – error conceded – no findings on remorse, prospects of rehabilitation or risks of reoffending – offender denying offences six weeks prior to sentencing hearing despite having pleaded guilty three months prior – questionable insight – no lesser sentence is warranted in law

Catchwords:

CRIME – appeals – appeal against sentence – where applicant had committed a large number of property offences – larceny, obtain property by deception, break and enter, reckless damage – whether error in sentencing judge’s determination of objective seriousness – consideration of the applicant’s status as subject to conditional liberty at the time of the offending in determining objective seriousness – consideration of the applicant lengthy criminal history in determining objective seriousness of offence pursuant to s 115 Crimes Act 1900 – objective features of the offending and subjective features of the offender must be considered separately – appeal upheld – applicant resentenced CRIME – appeals – appeal against sentence – whether error in sentencing separately for common elements in ss 114 and 115 offences – no additional act of criminality necessary for guilt under s 115 – offence complete on proof of previous conviction and applicant’s commission of the s 114 offence – double punishment –contravention of Pearce v the Queen – discussion of background to statutory provision – consideration of approach in Darcy v R and R v Tillott – s 115 inconsistent with prevailing sentencing standards – unanimous criticism of s 115 – inappropriate to impose any penalty – inappropriate to indicate any sentence as part of an aggregate term of imprisonment – appeal upheld on this ground by majority

Catchwords:

CRIMINAL PROCEDURE — sexual offence proceedings — applicant convicted of indecent assault of and sexual intercourse with a child under the age of 10 — victim gave detailed description of ejaculation when interviewed by police at the age of 11 — effect of prohibition in to s 293 Criminal Procedure Act 1986 (NSW) (now s 294CB of Crimes Act 1900 (NSW)) — whether Crown was entitled to make submission to the effect that victim would not have known about ejaculation other than because of the offending conduct — whether trial judge was entitled to infer that victim would not have known about ejaculation other than because of the offending conduct EVIDENCE — discretions — exclusion of evidence — criminal proceedings — whether trial judge erred in not accepting evidence of witness (a child) which was contradicted by complainant — reasons for verdict to be read as a whole to determine why such evidence was rejected CRIMINAL PROCEDURE — sexual offence proceedings — complaint evidence — minor inconsistencies in complaint evidence — whether trial judge entitled to address alleged inconsistencies in global way in reasons for verdict EVIDENCE — whether trial judge was obliged to refer to evidence of witness whose evidence was of little or no probative value in reasons for verdict JUDGES — Courts — Duty of trial judge in trial by judge alone to give reasons for verdict — whether infelicitous phrase revealed error — requirement to read judgment fairly and as a whole

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where the appellant was convicted of being an accessory after the fact to murder of the principal offender’s girlfriend – Where Crown case wholly circumstantial – Whether the jury was not adequately directed as to the elements of the offence – Whether the evidence admissible against the appellant did not support his conviction – Whether there was a substantial miscarriage of justice EVIDENCE – Admissions – Criminal Proceedings – Where the trial judge admitted the principal offender’s certificate of conviction in the appellant’s trial – Whether the certificate can be admitted under the Evidence Act 1995 (NSW) in the appellant’s trial EVIDENCE – Criminal Proceedings – Appeals – Failure to object – Where the principal offender’s interviews with police were admitted during the appellant’s trial – Where the trial judge admitted evidence of sexual interactions between the principal offender and another – Where the trial judge admitted text messages sent by the appellant as admissions – Where no objections were made at trial – Where leave required to challenge admissions –Whether the jury was misdirected as to the use of the statements made by the principal offender

Catchwords:

CRIME – appeals – appeal against conviction – where applicant charged with specially aggravated break, enter, and commit assault occasioning actual bodily harm – joint criminal enterprise to break and enter victim’s home, commit common assault, and steal cash – whether guilty verdict was unreasonable or unsupported by the evidence – three particulars – evidence sufficient to find agreement to assault made before breaking and entering – evidence sufficient to find that infliction of actual bodily harm was foreseen as a possibility in carrying out the joint criminal enterprise – discussion of whether prohibited to combine legal concepts of extended joint criminal enterprise and committing the offence in company – concepts able to stand together – consideration of Markou v R – in that case only the assault itself required to be proven to have been committed in company, not the consequence of actual bodily harm – whether miscarriage of justice occasioned by trial judge’s failure to provide written directions about the doctrines of basic and extended joint criminal enterprise – oral directions sufficient – no sign of any difficulties in jury’s understanding – appeal dismissed

Catchwords:

CRIME – appeals – Crown appeal against directed verdicts of acquittal pursuant to s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) – 40 counts of aggravated sexual offences – where respondent was employed as a gynaecologist and obstetrician – 19 complainants – respondent’s case at trial that the physical acts had either been performed for a proper medical purpose, or had not occurred at all – verdict of not guilty directed – trial judge found Crown had not adduced any evidence the complaints were not consenting, or that the respondent had possessed the requisite mental element to be charged with any sexual offence – appeal involved four proposed questions of law alone – evidence of complainants’ lack of consent readily inferred –evidence that the respondent at least foresaw the possibility that each complainant was not consenting available – directed verdicts erroneous – appeal allowed – verdicts of not guilty quashed CRIME – appeals – Crown appeal against acquittals – new trial – whether new trial appropriate – where new trial would be the third – where respondent submits new trial would be unduly oppressive – not in the interests of justice to allow acquittals to stand – new trials ordered

Catchwords:

CRIME — drug offences — supply prohibited drug psilocybin — commercial quantity — whether weight of prohibited drug included weight of mushrooms in which psilocybin naturally found — construction of s 4 of the Drug Misuse and Trafficking Act 1985 (NSW)

Catchwords:

CRIME – Appeals – Appeal against conviction – Where appellant was convicted of murdering his girlfriend – Where tendency evidence as to the appellant’s tendency to act aggressively when motivated by jealousy – whether probative value substantially outweighed prejudicial effect CRIME – Appeals – Appeal against conviction – Where Crown case was wholly circumstantial – Whether dedicated inferences direction should have been given to the jury in addition to a circumstantial case direction CRIME – Appeals – Appeal against conviction – Where defence proposed former partner of deceased as alternative theory for death of deceased – Where trial judge did not permit defence to cross examine deceased’s former partner regarding alleged dishonest conduct CRIME – Appeals – Appeal against conviction – Where deceased’s cause of death was blunt force trauma – Whether trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury CRIME – Appeals – Appeal against conviction – Unreasonable verdict CRIME – Appeals – Appeal against sentence – Where Crown closing relied upon intention to cause grievous bodily harm – Whether sentencing judge erred in determining there was intention to kill CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in assessment of objective seriousness of offending CRIMES – Appeals – Appeal against sentence – Whether sentence manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manslaughter — Where sentencing judge took account of evidence not tendered in sentence proceedings — Whether miscarriage of justice occurred CRIME — Appeals — Appeal against sentence — Where applicant had a background of profound childhood deprivation — Whether sentencing judge failed to give meaningful consideration to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CRIME — Appeals — Appeal against sentence — Where sentencing judge erred in failing to consider special circumstances

Catchwords:

CRIME – appeals – appeal against sentence – whether obligation on a sentencing judge to make a finding of fact about an offender’s unlikelihood of re-offending – no such obligation on the evidence relevant and known to the court – where the sentencing judge made a “neutral” finding – appeal dismissed

Catchwords:

CRIME – appeal against conviction – resisting officers executing duty – appellant acquitted of charges of resisting arrest by first two officers at the scene because arrest held to be unlawful – appellant also charged with counts of resisting officers executing duty – charges based on resistance to third and fourth officers who arrived at scene later and saw appellant struggling with first and second officers – appellant pleaded guilty – whether appellant should be permitted to withdraw his pleas – whether unlawfulness of arrest by first two officers impacted upon charges based on resistance to third and fourth officers – alternatively, whether appellant entitled to set aside one of the convictions because both were based on identical conduct – significance of absence of findings by primary judge – appeal against conviction dismissed CRIME – appeal against sentence – whether finding that arrest was invalid relevant to sentencing – whether sentencing judge failed to have regard to evidence of appellant’s cognitive deficits – whether sentencing judge failed to have regard to aspects of appellant’s subjective case – appeal against sentence allowed and appellant resentenced

Catchwords:

APPEALS – criminal procedure – temporary stay of proceedings – where the Crown sought to rely on putatively privileged communications by a third party – where delay occurred because the question of whether privilege had been waived was not resolved when the third party was to give evidence – temporary stay of proceedings granted pending the Crown’s payment of costs thrown away – whether decision of the Director of Public Prosecutions not to fund legal representation for the third party to resolve the privilege issue was an irrelevant consideration in granting the temporary stay – whether the Crown was at fault for the delay such that the principles of R v Mosely (1992) 28 NSWLR 735 applied – whether the accused suffered unfairness because of delays in resolving the privilege issue

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

Catchwords:

CRIME – appeals – Crown appeal pursuant to Criminal Appeal Act s 5F(3A) – doli incapax – where respondent aged between ten and fourteen at time of alleged offending – knowledge and development for doli incapax purposes – whether evidence if admitted would substantially weaken the Crown case

Catchwords:

CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Supply of not less than commercial quantity of drug — Where applicant supplied significantly lower quantities of drugs prior to the involvement of police undercover operative — Whether sentencing judge erred in assessing the objective seriousness of the offence on the basis that it was designed to accrue a financial benefit CRIME — Appeals — Appeal against sentence — Where sentencing judge took account of the applicant’s background of profound childhood deprivation as part of instinctive synthesis but refused to reduce the applicant’s moral culpability — Whether the sentencing judge failed to correctly apply the principles of Bugmy v The Queen (2013) 249 CLR 571

Catchwords:

CRIME — appeals — appeal against convictions for sexual intercourse without consent — miscarriage of justice — alleged risk of prejudice following exchange between Crown witness and accused in courtroom — whether trial judge’s decision not to discharge jury following the exchange resulted in a miscarriage of justice — whether trial judge’s direction to jury was sufficient to overcome potential prejudice SENTENCING — appeal against sentence — whether sentencing judge erred in calculation of commencement date of sentence — pre-sentence custody period — discretion of sentencing judge to back-date commencement date of sentence

Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – criterion for leave to appeal from interlocutory decision in criminal proceedings – whether leave to appeal should be granted – where applicant for stay had been found unfit to stand trial on the indictment pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether standard of appellate review is the correctness standard in light of the High Court’s decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 – whether there was an error of principle and possibility or likelihood of substantial injustice CRIMINAL PROCEDURE – stay of proceedings – permanent – where permanent stay of proceedings sought on multiple bases including the Applicant’s mental infirmity and forensic disadvantages arising out of delays in bringing the prosecution – whether “common humanity” test applies in cases where more than mental infirmity is relied upon to found an application for a permanent stay – whether sufficient weight given to the Applicant’s mental infirmity – whether primary judge inappropriately weighed the forensic advantage accruing to the accused as a result of delays in bringing the prosecution against those accruing to the Crown

Catchwords:

CRIMINAL LAW – appeal against conviction –accountant convicted of knowingly dealing with proceeds of crime – whether summing-up lacked balance or contained “advocacy” favouring prosecution – summary of prosecution and defence cases – no miscarriage of justice in judge recounting evidence relied on by prosecution – summing up of defence case undermined credibility of witness relied on by defence – credibility of witness not challenged by prosecutor – subsequent neutral directions not sufficient to rectify error – convictions quashed

Catchwords:

CRIMINAL PROCEDURE – Indictment – where Crown case relied on multiple potential principals and several instances of alleged provision of financial advice in proof of a single count of contravening ss 911B(1) and 1311(1) of the Corporations Act – where trial judge had declined to quash or permanently stay indictment – whether the identification of multiple principals failed to allege an offence known to law – whether the identification of multiple principals was in contravention of the rule against duplicity – whether the identity of the principal is a factual matter that must be pleaded in order to avoid uncertainty in the charge – whether the number of potential principals and instances of provision of alleged advice was an abuse of process. CRIMINAL PROCEDURE – Indictment – where indictment did not address the exculpatory condition in s 911B(1)(e) – whether indictment fails to aver an offence known to law by failing to allege all of the necessary conditions to make out an offence.

Catchwords:

CRIMINAL LAW – sentence appeal – applicant sentenced in relation to a number of contact and non-contact sexual offences – whether the sentencing judge made a finding of special circumstances – the non-parole period was greater than the statutory ratio – approach to re-sentencing – whether discrete matter or arithmetical error – tension in authorities – where parties agree full re-sentencing is required – unfairness – offender resentenced (but only in so far as the non-parole period)

Catchwords:

CRIME — Appeals — Appeal against conviction — Sexual assault and intimidation offences — Where trial judge did not give Markuleski direction — Unreasonable verdict

Catchwords:

CRIME – appeals – appeal against sentence – one count of obtaining a financial advantage by deception – where applicant falsely represented she was separated from her husband to claim Parenting Payment Single (PPS) – offending took place over seven years and involved fraudulent payments totalling $170,787.11 – where applicant did not give evidence and psychiatric evidence was tendered without objection – where the Crown accepted applicant’s major depressive disorder at least at certain points in time impaired her decision making – where sentencing judge held applicant’s mental health condition did not reduce her moral culpability to a significant degree – whether sentencing judge’s finding on subjective circumstances amounted to a denial of procedural fairness – sentencing judge not obliged to accept what was contained in the psychiatric report – no independent evidence confirmed history given to psychiatrist and appeared inconsistent with other evidence – no denial of procedural fairness – ground rejected CRIME – appeals – appeal against sentence – whether judge ought to have found that applicant’s mental condition would make custody more onerous – where no such finding was sought by the applicant at the sentence hearing – ground rejected CRIME – appeals – appeal against sentence – where fraudulent funds had been fully repaid – where applicant did not give sworn evidence of contrition or remorse – whether sentencing judge failed to take into account repayment of money as evidence of contrition – held sentencing judge not obliged to find contrition simply because fraudulent funds had been repaid – other matters inform determination of contrition – ground rejected – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — alleged unreasonable verdicts in judge-alone trial — whether it was open to the trial judge to be satisfied beyond reasonable doubt that the applicant engaged in dangerous driving CRIME — driving offences — dangerous driving occasioning death and grievous bodily harm — truck driver experienced potential trigger for vasovagal syncope when stopped at the lights — put the vehicle in motion before losing consciousness — history of vasovagal syncope — whether applicant had sufficient warning of oncoming loss of conscious such that driving was dangerous — whether applicant’s loss of consciousness was caused by pre-existing medical condition (vasovagal syncope) or a pulmonary embolism

Catchwords:

SENTENCING — Crown appeal against sentence — offender convicted of aggravated sexual intercourse without consent and intimidation — whether sentence imposed was manifestly inadequate — whether sentence was unreasonable or plainly unjust — balancing objective seriousness of offence with subjective considerations SENTENCING — subjective considerations on sentence — special circumstances — offender’s youth and cognitive impairment — consideration of how best to achieve the purposes of sentencing including rehabilitation and prevention of further offending — lack of rehabilitation options for offender in custody

Catchwords:

CRIME — appeals — appeal against conviction — 16 counts of assault with an act of indecency — 1 count of common assault— three complainants — unreasonable verdict — verdict unsupported by evidence — evidence cross-admissible for tendency purpose — whether deficiencies and inconsistencies in evidence sufficient to give rise to reasonable doubt

Catchwords:

CRIME – criminal liability – absolute liability – statutory offences – whether the offence of driving a motor vehicle while there is present in the person’s oral fluid, blood or urine any prescribed illicit drug is an offence of strict or absolute liability – statutory interpretation of s 111(1) of the Road Transport Act 2013 (NSW)

Catchwords:

CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a “serious children’s indictable offence” within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive.

Catchwords:

CRIME – appeals – appeal against sentence – parity – disparity between sentences of co-offenders after sentencing judge found applicant’s sentence should be slightly longer than co-offender’s – whether sentencing discretion miscarried – appeal allowed – applicant resentenced

Catchwords:

CRIME — Appeal under s 5F Criminal Appeal Act 1912 (NSW) — Sexual offences — Historical indecent assaults — Where female teacher allegedly engaged in sexual activities with male teenage students in 1978 — Whether a female capable of committing the offence of indecent assault upon a male person under the now-repealed s 81 of Crimes Act 1900 (NSW)

Catchwords:

CRIME – Appeals – Appeal against sentence – Assessment of objective seriousness of offence – Assessment by sentencing judge not open – No failure to take into account totality of evidence – Applicant resentenced

Catchwords:

CRIMINAL LAW – bail – appeal bail – release application – where charges not yet certified and charge certificate not yet filed – show cause offences – strength of prosecution case – requirement for medical treatment – cause shown – unacceptable risk – strong connections with organised crime – unacceptable risk of committing a serious offence –unacceptable risk of failing to appear – unacceptable risk of interfering with witnesses – bail refused

Catchwords:

CRIMINAL LAW – bail – release application – whether the identified unacceptable risks can be mitigated – not satisfied that any conditions can reasonably be imposed to mitigate the unacceptable risks – bail refused

Catchwords:

CRIME – bail – release application – show cause requirement s 16B(1)(h) Bail Act 2013 (NSW) –proceeds of crime and dishonesty offences – extensive criminal history – non-compliance with bail and parole obligations – witnesses not credible – connections and resources to assist leaving the country – cause not shown and application refused – charges subsequently reformulated and bail granted in court below

Catchwords:

CRIMINAL LAW — appeal against conviction — trial by jury of child sexual assault — two complainants —evidence of each complainant admitted as tendency evidence with regard to alleged offending against the other complainant — middle-aged applicant of good character in a particular respect with regard to absence of any suggestion of prior child sexual assault or sexual interest in children — character not raised by defence counsel at trial in any respect —deliberate decision of counsel — whether miscarriage of justice established

Catchwords:

CRIME — Appeals — Appeal against sentence — By Crown — Where parties agree sentence miscarried — Offence which carries life imprisonment erroneously attached to Form 1 — Matter remitted to District Court

Catchwords:

SENTENCING – appeal against sentence – aggravating factors – dangerous driving occasioning death – moral culpability – objective seriousness – where the applicant was “showing off” his vehicle; grossly disregarded the speed limit and was found to have engaged in aggressive driving

Catchwords:

CRIME – appeals – appeal against conviction – circumstantial evidence – standard of proof of intermediate facts – whether higher standard of proof applies to certain non-indispensable intermediate facts

Catchwords:

CRIMINAL PROCEDURE – lies – directions to jury – consciousness of guilt – where Crown conducted a case in relation to one alleged lie told in consciousness of guilt – whether trial judge erred in directing jury about three alleged lies told in consciousness of guilt EVIDENCE – character evidence – good character – where applicant sought to lead evidence of lack of prior convictions – where trial judge refused to allow applicant to adduce evidence of prior good character – whether trial judge erred EVIDENCE – tendency evidence – coincidence evidence – whether direction sought by Crown – whether trial judge permitted to give direction

Catchwords:

CRIME – appeals – appeal against sentence –whether an Adverse Publicity Order should be substituted with a form of order reflecting the findings subsequent to a conviction appeal – Adverse Publicity Order quashed and substituted

Catchwords:

APPEAL – crime – sentence discount for guilty plea – sentencing discount to aggregate sentence rather than indicative sentences APPEAL – crime –– several times the commercial quantity of cocaine – whether this was an error of fact in sentencing APPEAL – crime – sentencing – objective seriousness – reference to “many multiples of the commercial quantities” – whether this was an error to the extent it referenced cocaine SENTENCING – appeal against sentence – role of appellate court – exercising the sentencing discretion afresh – effect of Kentwell v The Queen

Catchwords:

CRIME – Appeals – Appeal against conviction – two counts of sexual intercourse without consent – whether trial judge failed to properly direct the jury on all the elements of the offence – concession by the applicant’s trial counsel that there was no issue as to consent or knowledge of lack of consent – no request for further directions at trial – whether further directions were required – whether miscarriage of justice – whether verdicts were unsafe and unsatisfactory – inconsistencies in evidence of Crown witnesses – whether complainant had motive to fabricate her evidence – whether inconsistencies and discrepancies lead to the conclusion that the jury acting rationally ought to have entertained a reasonable doubt

Catchwords:

CRIME – appeal against sentence – environmental offences – appellant pleaded guilty to three offences contrary to s 144AA(2) and one offence contrary to s 144AA(1) of the Protection of the Environment Operations Act 1997 (NSW) – transmission of false or misleading information during the course of dealing with waste – three offences of knowingly providing false information – hundreds of weighbridge documents falsified and provided to developers and site auditors – further false documents created to conceal earlier offending – whether primary judge erred in assessing harm and risk of re-offending – whether fines totalling $943,650 manifestly excessive – consideration of nature of ground alleging manifest excess – consideration of whether offending a “single course of conduct” and significance of that conclusion – whether errors in assessment of totality and parity – whether participation in statement of agreed facts a separate mitigating factor – appeal allowed and offender resentenced

Catchwords:

CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of objective seriousness CRIMES – Appeal against sentence – whether sentencing judge erred in assessment of the applicant’s rehabilitative prospects CRIMES – Appeal against sentence – where offending was assessed to be within the mid-range – where offences occurred within a short period in a single course of conduct – where applicant had strong subjective case – consideration of sentences imposed in cases with similar fact patterns – sentence is manifestly excessive – applicant resentenced

Catchwords:

CRIMINAL LAW – appeal – pleas of guilty – appeal against sentence – insufficient regard to psychologist’s report – whether the sentencing judge failed to consider and apply De La Rosa principles to the applicant’s circumstances – error found – applicant resentenced

Catchwords:

CRIME – appeals – appeal against a special verdict of act proven but not criminally responsible – where trial judge considered accused presented unusually on complainant’s account of acts charged, on body worn police camera and in court – where accused expressly and repeatedly disavowed potential mental health defence – where both accused and Crown opposed to special verdict at trial – where accused gave evidence of historical brain injury – where no expert evidence about effect of any potential impairment on accused’s brain and cognitive functioning – where special verdict entered

Catchwords:

CRIME – appeals – appeal against sentence – attempt to import commercial quantity of border-controlled drug – ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – Crown conceded “Totaan error” – appellant’s incarceration causes hardship to family and dependents – parity with co-offenders – appellant resentenced

Catchwords:

CRIME – Appeals – Appeal against conviction – Where evidence of text conversations between complainant and relative of applicant had been admitted by the primary judge – Whether evidence was admitted in error – Whether admission of evidence caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Where evidence of messages sent by the complainant had been obtained improperly but were admitted on the basis of relevance – Where the evidence was not admitted until the complainant and other Crown witnesses had already been cross-examined – Whether the failure to determine the admissibility of the evidence until after the Crown witnesses had been cross-examined was an error or caused a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to object to admission of evidence occasioned a miscarriage of justice CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Whether failure of counsel to determine admissibility of evidence prior to cross-examination of the complainant caused a miscarriage of justice CRIME – Appeals – Appeal against sentence – Where two counts of intimidation also involved suffocation – Whether sentencing judge fell into De Simoni error by sentencing on the basis of findings constituting a more serious offence CRIME – Appeals – Appeal against sentence seriousness – Where count of common assault constituted fourth of four counts in final episode of abuse after nine years of domestic violence – Whether sentencing judge erred in finding count was at the mid-range of objective CRIME – Appeals – Appeal against sentence – Where offending involved 28 counts of domestic violence over nine years – Whether aggregate sentence was manifestly excessive

Catchwords:

CRIME – criminal liability – absolute liability – statutory offences – liability of nominated supervisor at a day care centre under s 165(2) of the Children (Education and Care Services) National Law 2010 (NSW) – whether “must ensure” imports a standard of absolute liability

Catchwords:

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 – where applicant’s defence largely funded by legal aid – whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 CRIMINAL PROCEDURE – Stay of proceedings – where applicant sought a Mosely stay during proceedings – whether a legally aided applicant can seek a Mosely stay where the Crown was at fault in relation to matter that led to termination of proceedings

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – sexual intercourse without consent – whether sentencing judge erred in assessing objective seriousness of offences – whether sentencing judge erred in assessing applicant’s disability – whether sentencing judge erred by having insufficient regard to applicant’s history of early childhood deprivation – whether sentencing judge erred in assessing applicant’s prospects of rehabilitation and likelihood of reoffending – whether sentencing judge erred by attributing too much weight to harm to the victim – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — judge alone trial — guilty verdicts on three counts — not guilty verdict on one count — whether reasonable doubt as to guilt of applicant on whole of the evidence CRIME — Appeals — Appeal against sentence — Manifest excess — whether consideration of intellectual disability sufficiently reflected in sentence

Catchwords:

CRIME – appeal and review – post-conviction inquiry ordered pursuant to s 77(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) – where judicial officer formed the opinion that there is reasonable doubt as to the guilt of the Applicant – where matter referred to the Court of Criminal Appeal pursuant to s 82(2) for consideration of whether the Applicant’s convictions should be quashed

Catchwords:

CRIMINAL LAW – appeal – sentencing – application of Crimes (Sentencing Procedure) Act 1999 (NSW), s 59 – whether commencement date of a sentence should be varied to preserve the sentencing judge’s intention as to the period of concurrence between two sentences served by the Applicant for unrelated offences – where the Applicant brought a successful appeal against sentence in relation to the earlier of the two sentences – where considerable delay in bringing the application

Catchwords:

CRIME — Appeals — Appeal against conviction — Child sex offences – Three counts of sexual intercourse with child >10 <16 – Two counts under authority – Unreasonable verdict – whether complainant’s evidence inherently unlikely and lacked detail – whether opportunity to develop closeness – where certain matter unexplored and unexplained – whether statement made to arresting officer and effect of statement – whether alleged location of third count possible given evidence of applicant’s brother – whether reasonable possibility applicant’s account might be true

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentences – where aggregate sentence not reconcilable with the sentencing judge’s stated intentions as to the accumulation of the indicative sentences – error conceded by the Crown SENTENCING – firearms offences – where offender convicted of possession, use and unsafe storage of a firearm – general need for some degree of accumulation – where subjective circumstances justified minimal accumulation

Catchwords:

CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress

Catchwords:

CRIME — Appeals — Appeal against conviction — Inconsistent and unreasonable verdicts — Single complainant — Child sexual assault

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal – parity – where applicant and co-offender received identical sentences – where co-offender convicted of a more serious offence – whether the applicant has a justifiable sense of grievance – appeal allowed – applicant resentenced

Catchwords:

CRIME – Appeals – Appeal against conviction – Sexual assault offences – whether identification direction was erroneous – whether guilty verdicts were unreasonable

Catchwords:

CRIME – appeal against sentence – cultivation of not less than large commercial quantity of prohibited plant – supply of large commercial quantity of cannabis leaf – conspiracy to manufacture commercial quantity of methylamphetamine –erroneous consideration of standard non-parole periods – material error – resentence required

Catchwords:

CRIME – appeals – appeal against sentence – where applicant convicted of affray and two counts of assaulting police – where applicant on conditional liberty at the time of offending – parole revoked – imposed sentence partially cumulative upon balance of parole to very small degree – whether sentence imposed failed to reflect sentencing judge’s finding of special circumstances when regard is had to the total effective sentence and total minimum period to be served by the applicant in custody – suggestion that applicant lost the opportunity to be re-released on parole purely hypothetical in the circumstances – no error on part of sentencing judge – appeal dismissed

Catchwords:

CRIME – SENTENCE – appeal against sentence – historical child sexual assaults – two victims aged about 6 to 12 years – ongoing course of conduct over a period of years – familial relationship between applicant and victims – lengthy delay between offending and prosecution – inappropriateness of grounds of appeal complaining of weight given to particular features – relevance of applicant’s reactive depression developed as a consequence of prosecution – relevance of claims by applicant of childhood abuse – no error disclosed

Catchwords:

CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether misstatement in the remarks on sentencing meant that sentencing judge proceeded on an incorrect basis and had capacity to influence the sentence – Whether expressions of frustration by the sentencing judge in the sentencing remarks at the way the charges had been brought affected the sentencing judge’s discretion CRIME – Appeals – Appeal against sentence – Where evidence of assaults in custody was not before the Court at the sentencing hearing – Whether assaults in custody constituted extra-curial punishment CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred by failing to take into account events that had not occurred at the time of sentencing CRIME – Appeals – Appeal against sentence – Whether the sentencing judge erred in failing to find that delays in the police investigation amounted to a mitigating factor in sentencing CRIME – Appeals – Appeal against sentence – Where there was material before the Court at the sentencing hearing – Where the sentencing judge had made factual findings adverse to the applicant – Whether the sentencing judge had failed to take into account relevant material – Whether the findings made by the sentencing judge were reasonably open CRIME – Appeals – Appeal against sentence – Where applicant pleaded guilty to 38 offences – Whether the indicative sentences for six counts were manifestly excessive – Whether manifestly excessive sentences on some of the 38 counts was sufficient to establish that the overall effective sentence was manifestly excessive CRIME – Appeals – Appeal against sentence – Where charges were initially brought under the wrong section of legislation – Where that was not brought to the applicant’s knowledge by his lawyers – Where those charges were later withdrawn – Where the applicant’s lawyers had advised him against tendering certain evidence – Whether there had been a miscarriage on the basis of incompetence of counsel

Catchwords:

CRIME – appeals – appeals against sentence – failure to backdate sentence to account for time served in pre-sentence custody – parties contributed to sentencing error in providing unnecessarily complicated pre-sentence custody information – error established – failure to sufficiently vary the statutory ratio upon finding special circumstances – adjustment reflects explicit intention – no error – non-parole period in years, months, and days – mathematical precision not required – appeal allowed – applicant re-sentenced

Catchwords:

CRIMES – appeals – application for leave to appeal against sentence – where applicant sentenced for 34 offences, including aggravated break and enter and commit serious indictable offence – whether error in relation to finding of no evidence of remorse – whether sentencing judge erred by giving insufficient regard to impact of COVID-19 – whether sentence manifestly excessive – consideration of principles of remorse – no error found in sentence imposed

Catchwords:

CRIME – sentencing – offence under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), s 6 –engaging in hostile activity in foreign country – parole only available in exceptional circumstances – Crimes Act 1914 (Cth), s 19ALB – parole refused – whether s 19ALB or established practice of Commonwealth to be disregarded in sentencing – whether sentence manifestly excessive – whether improbability of parole warranted reduction of sentence

Catchwords:

CRIME — Appeals — Appeal against sentence — Future commencement date of sentence — Delay — Revocation of parole — Manifest excess

Catchwords:

CRIME — Appeals — Appeal against sentence — Purposes of sentencing — General and specific deterrence — subjective circumstances

Catchwords:

CRIME – appeals – appeal against conviction – judge-alone trial – multiple carjacking, firearm and assault with intent to rob in company offences – where offending occurred over 18-hour time period and covered more than 1000km – where appellant in coercive control relationship with co-offender – duress – where trial judge determined that duress had not been established – whether trial judge erred by failing to consider that duress sufficiently raised to be considered by tribunal of fact – held trial judge’s ruling clearly a final determination as the tribunal of fact – whether there must be evidence of a particular request or demand to commit the offences charged – no direct or implied evidence of a demand or request to commit any of the offences – trial judge correctly concluded that the Crown had negatived the issue of duress – appeal dismissed

Catchwords:

CRIME — Appeals — Crown appeals against sentence — Commonwealth and State drug offences – import commercial quantity of border controlled drug – whether manifest inadequacy – whether sentencing judge determined objective seriousness – where co-offender received higher sentence – whether co-offender’s sentence and comparative cases demonstrative of error – subjective cases – whether sentences encompassed the whole of the criminality

Catchwords:

CRIMINAL LAW – Crown appeal – sexual intercourse with a 10 year old child – offence on Form 1 – respondent serving an aggregate sentence for domestic violence offences – concession by respondent that sentence was manifestly inadequate when the degree of concurrence with existing sentence was taken into account – whether sentence for the offence was manifestly inadequate – whether sentencing judge had taken into account specific deterrence, protection of society and denunciation – whether error in consideration of JIRS statistics – whether error in consideration of JIRS starting date of sentence – residual discretion – resentence – assessment of objective seriousness – consideration of moral culpability – respondent’s deprived background – whether causal link between deprived background and offending – whether causal link necessary – mental health – approach to totality – appeal allowed

Catchwords:

CRIME – sentence appeal – finding of lack of remorse based on lack of candour – finding open – finding of attempts to minimise role – finding open – parity – no error – appeal dismissed

Catchwords:

CRIMES – appeals – appeal against sentence – where applicant pleaded guilty to possession of a pistol and two counts involving discharge of the weapon – where sentencing judge misapprehended agreed facts as to which count involved the infliction of second gunshot wound – whether despite factual error no lesser aggregate sentence warranted for the three counts

Catchwords:

CRIME – Crown appeal – whether aggregate sentence for multiple counts of supplies of large commercial quantities of prohibited drugs manifestly inadequate – totality - significance of sentences previously imposed for separate supplies of large commercial quantities of prohibited drugs – significance of separate sentence imposed by sentencing judge for separate offending contrary to federal law – whether inadequacy of sentence so marked that amounted to an affront to justice – appeal allowed and respondent resentenced

Catchwords:

CRIME – appeals – appeal against conviction – circumstantial case – whether trial judge’s directions in response to jury question gave rise to miscarriage of justice – jury directed that there was no evidence to support a particular inference inconsistent with the Crown case but consistent with guilt – direction a proper reflection of evidentiary position – no misdirection established CRIME – appeals – appeal against sentence – murder – relevance in sentencing proceedings of generalised research on effects of background of disadvantage – Bugmy Bar Book – relevance of background of disadvantage to sentencing for serious offending – appeal allowed – offender resentenced

Catchwords:

CRIME – Appeals – Appeal against conviction – accessorial liability – applicant convicted of accessory before the fact to murder by shooting – whether impermissible reliance by the Crown on an alternative path to guilt on the basis of knowledge of an unidentified act committed with the intention of causing grievous bodily harm of an unidentified kind – whether trial judge’s instructions gave rise to error of law – whether knowledge of the type of offence in accessorial liability includes knowledge of the manner in which it will be brought about – crown submissions and directions read in proper context–leave granted – appeal against conviction dismissed CRIME – appeals – appeal against sentence – murder – accessorial liability – whether the sentencing judge failed to engage with a critical submission advanced on the applicant’s behalf about the applicant’s knowledge of the principals’ intention – leave to appeal granted – appeal dismissed CRIME – appeals – Crown appeal against sentence – murder – accessorial liability – whether the sentence imposed for murder is manifestly inadequate – whether the sentencing judge erred in failing to accumulate the sentence imposed in relation to the accessory after the fact of murder count to any extent – sentence imposed for murder was manifestly inadequate – respondent resentenced

Catchwords:

CRIME — Bail — Detention application — where “exceptional circumstances” established — whether bail conditions could ameliorate risk of commission of serious offence which endangers safety of community — where conditions could not ameliorate risk — where application granted and bail revoked CRIME — Bail — Terrorist offences — “Exceptional circumstances” — where respondent has been incarcerated for seven years — where COVID-19 pandemic has made conditions more onerous than normal — where “exceptional circumstances” established

Catchwords:

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – 14 counts of child sexual abuse against biological daughter over a period of two years – where complainant was aged between 6 and 8 years – where clear guidance on the appropriate range for indicative sentences for this type of offending was recently provided in Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81 – where Crown drew attention to TH in its written submissions to the sentencing judge – held indicative sentences for 10 offences at mid-range and above mid-range far below the proper range of sentences for such offending – where head sentence for all of the offending less than standard non-parole period for 1 of the 13 counts of sexual intercourse with a child under 10 years –– aggregate sentence an affront to the administration of justice – Court must intervene and resentence – appeal allowed – resentence

Catchwords:

CRIMES – appeals – appeal against sentence – manifest excess – where applicant pleaded guilty to six offences including supply of shotgun – whether degree of notional accumulation unreasonable – whether indicative sentences nominated for minor offences excessive – where degree of accumulation additional to indicative sentence for most serious offence of supply shotgun very modest – aggregate sentence not manifestly excessive

Catchwords:

CRIME – Appeals – Appeal against sentence – leave to appeal granted – parity – whether applicant has a justifiable grievance in light of the sentences imposed on the co-offenders – manufacture of a large commercial quantity of MDMA – criminal enterprise – group of four offenders – where two co-offenders previously successfully appealed sentences to achieve parity with applicant – where applicant was slightly lower in hierarchy than co-offenders – differentiation justified by other factors – no justifiable sense of grievance established – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against finding that offences committed after special hearing — Unreasonable verdicts

Catchwords:

CRIME – appeals – appeal against sentence – sexual assault – knowledge about absence of consent – self-induced intoxication – Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA) – whether intoxication not self-induced due to asserted history of addiction – whether sentencing judge erred in finding that offender had actual knowledge, rather than an unreasonable belief, that the victim consented – whether sentence was manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against conviction and sentence — guilty pleas — multiple child sexual assault offences

Catchwords:

APPEALS — crime — appeal against conviction — sexual intercourse without consent — unreasonable verdict — credibility of complainant — alleged inconsistencies in complaint evidence to friends and family — whether aspects of complainant’s evidence and behaviour towards applicant would cause jury to have a reasonable doubt — appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against conviction – Inconsistent verdict – Where applicant had been convicted of two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent – Where the applicant was acquitted of two counts of sexual offences, the conduct of which preceded the conduct which formed the basis of the three convictions – Whether the verdicts of guilty were inconsistent with the verdicts of acquittal

Catchwords:

CRIME – Appeals – Appeal against conviction – Child sexual assault offences – applicant convicted of several counts and acquitted of several other counts – whether the verdicts were inconsistent or unreasonable – whether the prosecution submissions to the jury were materially prejudicial

Catchwords:

CRIME – appeals – appeal against conviction – female genital mutilation – whether excision of part of the labia minora of complainant was contrary to s 45 of the Crimes Act 1900 (NSW) – whether purpose of s 45 was to prevent female genital mutilation being performed on female children – whether statements as to purpose of s 45 by High Court in The Queen v A2 (2019) 269 CLR 507 required s 45 to be read down so as only to apply to female children – where actual text of s 45 does not support such a reading – principles of statutory interpretation – purposive construction – departure from literal meaning of statute CRIME – appeals – appeal against conviction – whether consent available as a defence to a charge of infliction of grievous bodily harm – where body modification artist performed “tummy tuck” surgery on complainant who consented to such surgery – consideration of the role of consent in cases of actual and grievous bodily injury – whether considerations of autonomy should render consent a defence CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – where the Appellant inserted a silicon implant into the hand of the deceased – whether evidence capable of establishing beyond reasonable doubt that the Appellant’s treatment of the deceased was criminally negligent CRIME – appeals – appeal against conviction – unreasonable verdict – judge-alone trial – manslaughter by criminal negligence – causation – where multiple possible causes of death – whether evidence capable of proving beyond reasonable doubt that septicaemia was a significant or substantial cause of death – whether multi-drug toxicity was the sole or a contributory cause of death CRIME – appeals – appeal against conviction – miscarriage of justice – failure to give a “Shepherd direction” that the Crown had the burden of proving beyond reasonable doubt that septicaemia was present in the deceased at the time of her death and that it was a significant or substantial cause of her death – standard of proof in finding that septicaemia was a significant or substantial cause of the deceased’s death SENTENCING – appeal against sentence – severity – whether sentence manifestly excessive – objective seriousness – whether indicative sentences adequately took into account the consent of the victims to body modification procedures

Catchwords:

CRIME – appeal against sentence – serious sexual offending against teenage step-daughters – offences a small part of broader course of conduct interstate – earlier convictions and sentences interstate – totality – question of extra-curial punishment – question of manifest excess

Catchwords:

CRIMINAL PROCEDURE – costs – subpoena – issued by Crown to non-parties – non-parties are legal practitioners – client legal privilege asserted – non-parties seek costs of setting aside and complying with subpoenas – power of District Court in proceedings on indictment to order costs against the Crown in relation to subpoena – whether statutory power exists – whether implied power exists – distinction between compliance costs and litigation costs APPEALS – jurisdiction – Court of Criminal Appeal – where District Court awards costs to non-parties who received subpoenas issued by Crown in criminal proceedings – Criminal Appeal Act 1912 (NSW) s 5F – whether decision to grant application for costs of subpoena an interlocutory judgment or order – whether decision to grant application for costs of subpoena a decision made in the proceeding for the prosecution of the offender on indictment

Catchwords:

CRIME – Sentence – offences of sexual intercourse with child aged between 14 and 16 – grooming child for sexual activity – produce child abuse material and other like offending – question of manifest excess – need for some accumulation of sentence to reflect offences against three children - subjective case contradictory and unsupported by objective evidence – absence of remorse – offender who blamed 13 year old victims - prioritisation of rehabilitation in imposition of sentence of offender of 35 years as a “young person” – conclusions favourable to applicant

Catchwords:

BAIL – where a detention application is brought by the Crown following a grant of bail – jurisdiction of the Supreme Court – relevant principles – bail conditions – delay – lawful reasons to be released – strength of the Crown case – detention application granted

Catchwords:

INTERLOCUTORY APPEAL – application for leave to appeal from ruling excluding evidence and refusing to grant a permanent stay – sexual offences – complainant young child – note records that complainant disclosed offending by applicant and her grandfather – complainant later disavowed offending by her grandfather – evidence ruled inadmissible under s 294CB(3) of the Criminal Procedure Act – trial judge refused to grant permanent stay – no jurisdiction to review evidentiary ruling – not a step in the appeal against the refusal of a stay – leave refused – no House v The King error shown in relation to refusal to grant a stay

Catchwords:

CRIME – appeal against conviction – jury irregularity – where judgment on admissibility mistakenly included in juror’s folder – individual juror discharged – decision to continue with jury of 11 – whether risk of miscarriage – inconsistent versions of whether document had been discussed or seen by remaining jurors – miscarriage established CRIME – tendency evidence – directions – construction of s 161A Criminal Procedure Act – standard of proof – danger of circular reasoning process – Shepherd direction – reliance on both charged and uncharged acts – potential for misuse of evidence – potential for jury to apply wrong standard of proof to charges – need for directions to guard against prejudice – whether directions occasioned miscarriage – proposed directions flatly contrary to statute – ground of appeal dismissed

Catchwords:

CRIME – appeal against conviction – applicant found guilty of murder – whether verdict unreasonable – whether error in directions on causation – whether trial judge erred in admitting admissions influenced by violence or oppression – whether trial judge erred in failing to leave an alternative verdict of manslaughter – appeal allowed on alternative verdict issue and otherwise dismissed – retrial ordered CRIME – sentence appeal – various grounds not considered because conviction appeal allowed

Catchwords:

CRIMINAL LAW – appeals – appeals against sentence – whether sentencing judge erroneously took into account criminal history as an aggravating factor rendering the offending more objectively serious – remarks to be read as a whole – no error established – appeal dismissed CRIMINAL LAW – appeals – appeals against sentence – manifest excess – where non-parole period in excess of statutory ratio – sentence not unreasonable or plainly unjust – appeal dismissed

Catchwords:

CRIME – appeal against sentence – one count of sexual intercourse without consent – above mid-range of objective seriousness – offender reckless as to consent – whether recklessness can support a finding of above the mid-range – whether sentencing judge failed to make findings in relation to mitigating factors – whether sentencing judge erred in refusal to rely on untested out-of-court statements – whether sentence manifestly excessive CRIME – procedure – leave to appeal – out of time – explanation for delay required – obligation of solicitor to make inquiries

Catchwords:

APPEALS — CRIME — appeal against conviction — unreasonable verdict — credibility of complainant —evidence of Crown witnesses contrary to Crown opening and closing addresses — whether evidence was challenged — whether prosecutor should have sought leave to cross-examine pursuant to s 38 of Evidence Act 1995 (NSW) — whether open to jury to consider that witnesses were mistaken

Catchwords:

CRIME – appeals – appeal against sentence – where report of forensic psychiatrist tendered at sentence hearing alleged applicant abused during childhood – where psychiatrist’s finding of abuse referred to notes of clinician who treated applicant as an adult – whether miscarriage of justice arose where representatives for applicant omitted to tender notes – notes containing more hearsay allegations of historical abuse of limited probative weight in the absence of firsthand evidence from applicant – sentencing judge’s rejection of fact of abuse not due to absence of notes – ultimately factual finding of abuse not of itself significant to applicant’s subjective case – no significant possibility of lesser sentence absent representative’s failure

Catchwords:

APPEALS — CRIME — Crown appeal against sentence — manifest inadequacy — aggregate sentence in respect of 19 offences of indecent assault, aggravated sexual assault of daughter and common assault — two sentences for breach of Apprehended Domestic Violence Order and soliciting mother to ask complainant to withdraw complaint (doing an act with intent to pervert the course of justice) — whether sentences unreasonable or plainly unjust — determination of appropriate sentence — residual discretion

Catchwords:

SENTENCING – Resentencing – Powers of appellate court to remit for resentencing – where High Court made orders remitting the matter to the Court of Criminal Appeal for resentencing pursuant to s 5D of the Criminal Appeals Act 1912 (NSW) – whether s 12(2) of the Criminal Appeals Act 1912 (NSW) requires that remittal only occur where there is a positive reason why the Court of Criminal Appeal could not do justice in resentencing or which makes a trial court better suited to the resentencing exercise

Catchwords:

CRIME – appeals – appeal against sentence – applicant pleaded guilty to one count of dealing in money intending it to become an instrument of crime – parity – where co-offender received higher discount – where difference between starting point of sentences appropriate to differences in objective gravity of offending – applicant’s sentence not manifestly excessive

Catchwords:

EVIDENCE – Tendency evidence – Significant probative value – Evidence of tendency of conduct and tendency of state of mind of the accused – Whether the tendency evidence has a significant probative value that substantially outweighs the risk of prejudice

Catchwords:

CRIME – appeals – appeal against conviction – inconsistent verdicts – 9 offences against same complainant – where applicant convicted of two counts – where applicant acquitted of all other counts – whether jury verdicts of guilty inconsistent with acquittals – verdicts not inconsistent CRIME – appeals – appeal against sentence – where sentencing judge made finding complainant under authority of offender – described by sentencing judge as aggravating feature – whether sentencing judge fell into De Simoni error – error made out – applicant resentenced

Catchwords:

JUDGMENTS AND ORDERS — Court of Criminal Appeal — Apprehended Bias — Application for disqualification — Where trial judge made an order rejecting application to disqualify herself — Whether order made was an “interlocutory order or judgment” under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) — Where certain line of Court of Criminal Appeal authority overtaken by subsequent High Court and Court of Appeal authority APPEALS — Leave to appeal — Aversion to granting leave where doing so may cause delay in or fragmentation of a trial COURTS AND JUDGES — Bias — Apprehended bias — Application for disqualification — Legal repugnance to judges receiving communications about a case outside court processes — Where invitation was an innocent case of mistaken identity — Necessity for apprehension of bias to be reasonable — Trial judge’s decision not to disclose the meeting was erroneous but understandable — Fair-minded lay observer would not reasonably conclude that the trial judge might not bring an impartial mind to the resolution of the questions the judge is required to decide — Trial judge did not err in declining to disqualify herself

Catchwords:

CRIME – appeals – appeal against sentence – solicit person to kidnap, detain and threaten to pervert the course of justice – where applicant and her ex-husband were involved in acrimonious Family Court proceedings – applicant wanted ex-husband detained and threatened until he agreed to apportionment of property – undercover operative acted as go-between between applicant and “enforcer” – whether sentencing judge failed to take account of involvement of undercover operative when assessing objective seriousness of the offending – extent to which such involvement impacted the finding of objective seriousness entirely a matter for sentencing judge – applicant was not encouraged or entrapped by undercover operative – ground not upheld CRIME – appeals – appeal against sentence – whether applicant was denied procedural fairness given sentencing judge’s qualified finding of remorse – where sentencing judge asked counsel if she intended to call the applicant and counsel did not – applicant does not need to be put on notice that a qualified finding would be made – no denial of procedural fairness – ground not upheld CRIME – appeals – appeal against sentence – whether sentencing judge failed to consider applicant’s mental health issues and their impact on moral culpability – where psychiatric and psychological reports disclosed an alcohol use disorder, anxiety disorder and depressive illness – sentencing judge referred to mental health issues but did not say whether or how it reduced moral culpability – diagnosed conditions somewhat related to offending – ground upheld – no lesser sentence warranted given serious threats of violence and gravity of offences of this kind – appeal dismissed

Catchwords:

CRIMINAL LAW – child sexual assault – pre-recorded evidence – failure to put matters raised by accused in interview with police – leave sought to re-call witness – lengthy delay – change of defence counsel – “interests of justice” – purpose of reducing trauma to child witnesses CRIMINAL APPEALS – interlocutory judgment or order – competence of application – whether ruling of trial judge amenable to appeal under Criminal Appeal Act 1912 (NSW), s 5F

Catchwords:

APPEALS — CRIME — appeal against conviction — maintain unlawful relationship with child — directions given by trial judge in accordance with authority — whether leave to appeal is required — whether leave to appeal is warranted if directions are in accordance with law but pending special leave application

Catchwords:

CRIME – appeals – appeal against aggregate sentence for offences against Customs Act 1901 (Cth) – where applicant was principal of criminal syndicate that coordinated importation of cigarettes with intent to defraud revenue – where persons engaged to bypass Australian Border Force and secure release of goods without payment of duty and GST were undercover police operatives – where applicant used operatives’ offer of assistance willingly – whether sentencing judge erred in finding that assistance of undercover operatives did not reduce the applicant’s moral culpability CRIME – appeals – appeal against aggregate sentence – importation and possession of tobacco products on which applicant knew duty and GST unpaid – whether sentencing judge erred in concluding that actual loss to revenue was a factor in gravity of offending – where offences related to intent to defraud revenue – relevance to objective gravity of amount intended to be evaded – where no lesser sentence warranted at law despite error

Catchwords:

CRIMINAL LAW – procedure – application to vacate trial date – where complainant not available for medical reasons – refusal of adjournment application – where accused consented to Prosecutor’s application – where evidence to be used as tendency evidence in respect of other complainants – role of Prosecutor – role of trial Judge – case management – tail wagging dog – whether decision unreasonable or plainly unjust CRIMINAL LAW – application to discharge jury – antecedent adjournment application not dealt with – where trial Judge insists on empanelling jury – where jury made aware of complainant who was unavailable – application of wrong test – question is not whether there may be a “substantial miscarriage of justice”

Catchwords:

CRIME — Appeals — Appeal against sentence — Whether sentencing judge failed to separately assess the objective seriousness of each offence — Whether sentencing judge failed to adequately differentiate the role of the applicant with co-offenders — Consideration of objective seriousness need not be expressed in a particular way — Sentencing exercise is to be judged in light of the sentencing judge’s reasons read as a whole

Catchwords:

CRIMINAL APPEAL – alleged indecent assaults by primary schoolteacher on Years 5, 6 and 7 students – three complainants – 19 counts – jury delivered verdicts on 4 counts relating to one victim – three guilty verdicts – one not guilty verdict – jury then discharged because of bullying allegation by one juror – Jury Act 1977 (NSW), s 73A – Sheriff investigation into bullying allegation – unfounded – applicant sought to rely on material produced by Sheriff’s investigation to show juror bias – one juror alleged to invoke personal experiences of sexual assault in evaluating the evidence – one juror reported that another juror “had made up their mind on the first day basically” – whether evidence produced by Sheriff inadmissible by reason of exclusionary rule concerning evidence of jury deliberations – whether exclusionary rule applicable where evidence of deliberations derived from Sheriff’s report – held that evidence that juror referred to own experience of sexual assault inadmissible – by a majority held that evidence that one juror perceived another to have their mind made up inadmissible – bias ground rejected – whether verdict unreasonable or could not be supported having regard to the evidence – ground rejected – in support of Count 1 complainant gave evidence that applicant kissed her in the storeroom throughout the year – in support of Count 2 complainant gave evidence that applicant kissed her in the laundry while tutoring her over a sustained period of time – whether trial judge erred in directing the jury that the relevant acts for Counts 1 and 2 was the “first time” that the applicant kissed her in the storeroom and the laundry – ground rejected

Catchwords:

CRIME – Appeals – Appeal against sentence – Covid-19 pandemic – where sentencing judge acknowledged the impact of the Covid-19 pandemic during the proceedings on sentence – where remarks on sentence did not expressly acknowledge the likely impact of Covid-19 on conditions of imprisonment – whether sentencing judge erred by failing to take into account that the Covid-19 pandemic renders conditions of imprisonment more onerous CRIME – Appeals – Appeal against sentence – Parity – where applicant and a co-offender were each sentenced by a different sentencing judge – whether there is a disparity in the sentence of the applicant and the co-accused that gives rise to a justifiable sense of grievance on the applicant’s behalf – discussion of how the respective ratios of the non-parole period to the head sentence of each co-accused are compared

Catchwords:

CRIME – appeals – appeal against conviction – applicant convicted of eight counts of indecent assault – all offending decades old – whether evidence of complaint, many years after the event, was admissible as fresh in the complainants’ memories under Evidence Act 1995 (NSW), s 66 – whether evidence of complaint admissible as evidence re-establishing credibility under Evidence Act, s 108(3) – whether trial judge ruled evidence admissible at pre-trial hearing and counsel thereafter acquiesced in evidence being led – whether trial judge obliged to intervene when no objection was made to complaint evidence – held that trial judge had made no ruling, trial judge was not obliged to intervene, and evidence would have been admissible pursuant to s 108(3) even if objection had been taken CRIME – appeals – appeal against conviction – indecent assault – elements of offence – whether mental element of indecent intention in addition to intention of committing the assault – where no such direction sought at trial – where authorities bearing on issue not addressed – whether sentence for these offences subsumed by sentence imposed for other offending – leave refused CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts unreasonable having regard to inconsistencies, age of complainants and absence of complaint for many years – appeal dismissed

Catchwords:

CRIME – appeal against conviction – murder – single fatal knife wound to the abdomen – refusal of application to discharge jury – application based on prejudicial statements during cross examination that accused had propensity for violence – whether failure to discharge jury gave rise to miscarriage of justice – whether conviction unreasonable and unsupported by evidence

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – coincidence evidence – whether evidence of a previous conspiracy to commit a similar offence was properly admitted as coincidence evidence – whether dissimilarities “undercut” the improbability of the events having occurred coincidentally – significant probative value of coincidence evidence – probative value substantially outweighed prejudicial effect – evidence properly admitted as coincidence evidence – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether verdict unreasonable or cannot be supported having regard to the evidence – judge alone trial – circumstantial case – no rational inference available other than guilt – appeal dismissed CRIMINAL LAW – appeals – appeal against sentence – whether sentencing judge failed to advert to the fact that the sentence imposed on the applicant would result in him serving more than 75% of his effective head sentence before being eligible for release on parole – cumulation of sentences for separate offences – no error established – appeal dismissed

Catchwords:

APPEALS – appeal against conviction – nature of appeal - failure to establish any of the three grounds of appeal - appeal is dismissed – conviction sustained. EMPLOYMENT AND INDUSTRIAL – prosecution – work health and safety – relevant principles – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker – s 19(1) of the Workplace Health and Safety Act 2011 (NSW) – elements of offences – reasonable practicability – Baiada – written instructions – training – supervision - relevance of post-incident conduct – essential facts – safe work procedures and methods – written instructions and directions – whether safe work methods and procedures were reasonably practicable - omissions CRIMINAL LAW – appeal - work health and safety – exposing employee to risk of death or serious injury – conviction sustained EVIDENCE – communication with deceased persons – rejection of evidence when it is illogical, unreliable or contradictory to a large body of alternative evidence - Landmark Roofing – accepting parts but not all evidence

Catchwords:

CRIME — appeals — manslaughter by neglect — judge alone trial — applicant voluntarily assumed care of former partner who suffered serious health conditions from cancer diagnoses — deceased suffered two strokes and experienced protracted neglect — deceased hospitalised and suffered third stroke days before death — two experts emphasised multi-factorial nature of death and opined deceased’s cachexia and ulcers had contributed to and hastened death — third expert identified direct cause of death as third stroke caused by deceased’s cancer — third expert considered cachexia and ulcers as “separate ongoing parallel problems” to strokes — applicant convicted and sentenced to 5 years imprisonment with non-parole period of 3 years — appeal against conviction — unreasonable verdict — whether it remained a “reasonable possibility” that deceased’s death occurred independently of his cachexia and ulcers — proposition that the deceased died from third stroke with no relevant contribution from his cachexia (or ulcers) no more than a bare possibility — third expert’s opinion that recovery from the third stroke was “highly unlikely” because of deceased’s cachexia and ulcers appeared to implicitly accept it was also highly likely those conditions hastened his death — overall effect of evidence leads to overwhelming conclusion deceased’s cachexia and ulcers made a significant contribution to the hastening of death — causation proven beyond reasonable doubt — appeal against sentence — manifest excess — comparative cases and present sentence do not establish a sentencing range for manslaughter by neglect — sentence not manifestly excessive having regard to sentencing judge’s finding of “high seriousness” — leave to appeal against conviction and sentence granted — appeals dismissed

Catchwords:

CRIME – appeals – appeal against sentence – multiple counts of historical child sexual abuse against two complainants – whether complainant was under authority of the offender as a consequence of extended family and family interactions – described by sentencing judge as an aggravating feature – whether sentencing judge fell into De Simoni error by considering aggravating circumstance that applicant abused position of authority – sentencing judge did not consider the position of authority as establishing a feature of statutory aggravation – issue of authority part of the instinctive synthesis – error not made out – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – serious conspiracy to import drug offence – parity – disparity between applicant and co-offender – where co-offender’s sentence successfully appealed – justifiable sense of grievance – appealed allowed – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge erred in failing to find special circumstances – whether the applicant was a co-offender in the same criminal enterprise as an offender who had been sentenced by a judge other than the sentencing judge – whether parity principle applied

Catchwords:

CRIME — appeal against sentence — conspiring to import commercial quantities of border-controlled drugs — five separate conspiracies to import large quantities of prohibited drugs into Australia — applicant arranged vessels and supervised Australian side of operations — applicant pleaded guilty and cooperated with police — applicant provided lengthy statement and undertaking to give “full, frank and truthful” evidence — applicant gave evidence at proceedings against nine co-conspirators including his two cousins and two nephews — AFP evaluated assistance as “full and frank” and “very useful” — applicant experienced worsening conditions of custody as a result of co-operation — total discount of 50% allowed by sentencing judge being 25% for pleas of guilty, 10% for past assistance and 15% for future assistance — sentencing judge found effect of co-operation on applicant’s family not exceptional and did not mitigate penalty — family hardship ground conceded — re-exercise of sentencing discretion afresh — conditions in custody — evidence of conditions in custody save for COVID-19 restrictions borne out in sentencing judge’s assessment of applicant’s conditions in custody and vulnerability — medical conditions — applicant’s medical conditions warrant conclusion time in custody has and will continue to be worse than sentencing judge’s pessimistic assessment — applicant’s poor health and likely deterioration in custody matters of real weight — family hardship — hardship to applicant and his family from applicant’s assistance and significance of willingness to implicate extended family members taken into account in assessing discount for assistance — discount for assistance to authorities — “principles” expressed in the form of rules that unduly fetter sentencing discretion by specifying maximum levels of discounts not to be exceeded unless exceptional circumstances arise cannot be reconciled with s 16A of Criminal Code (Cth) — no statutory requirement to specify percentage discount but generally should be nominated — whether sentencing judge erred in assessing applicant’s relative role in conspiracies — no relevant inconsistency between sentencing judge’s findings of roles and positions of applicant and co-conspirators — applicant resentenced for role in two conspiracies on basis he was “at the apex” but not the apex — applicant introduced to both conspiracies by cousin and took guidance and direction from him — applicant’s role across all conspiracies was significant — parity — consideration of parity with co-conspirators does not enhance applicant’s case for leniency given his greater criminality — extension of time and leave to appeal granted — appeal allowed — applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – whether failure to find or take into account unchallenged expert evidence of offending behaviour and pre-existing co-morbid mental disorders – GBL offence – whether sentence imposed is manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — domestic violence offences — findings of sentencing judge — Victim Impact Statement — objective seriousness — appeal dismissed

Catchwords:

APPEALS — crime — appeals against sentence — murder — wounding with intent to cause grievous bodily harm — relative youth — applicant has mental health impairment but no psychotic disorder — sentence judge gave consideration to but did not impose a life sentence due to applicant’s age and mental health CRIME — whether the sentencing judge gave adequate reasons regarding the meaning of “unwarranted double counting” — no error CRIME — whether the sentencing judge considered that the applicant’s term of imprisonment could be more onerous than the theoretical inmate — error established CRIME — whether the sentence judge erred in assessing the applicant’s demeanour — no error CRIME — whether the learned sentencing judge erred in failing to take into account the applicant’s youth other than for the purpose of consideration of a life sentence — no error CRIME — appeals against sentence — resentence — a somewhat reduced sentence is warranted having regard to the sentence judge’s error in not considering the impact of the applicant’s mental health on the onerousness of his custody — contra view that despite the error, no other sentence is called for at law having regard to the objective seriousness, consideration of proportionally and specific deterrence in this case

Catchwords:

CRIME — Appeals — Child sex offences — Sexual intercourse with children under 10 — Offender with cognitive impairment EVIDENCE — Admissions — Criminal proceedings — Whether to admit Police interview of applicant into evidence under s 138 of the Evidence Act 1995 (NSW) — Applicant vulnerable as Indigenous and intellectually impaired — Protections under Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW) — Aboriginal Legal Service advice not to be interviewed or go to interview room accepted and this communicated to Police — Police asked support person if applicant would be interviewed and told no — Police nevertheless commenced interview — Substantial impropriety by Police officers — Primary judge erred in concluding difficulty of obtaining inculpatory evidence favoured admission — Admissibility of evidence reconsidered — Evidence inadmissible APPEALS — Appropriate standard of appellate review re s 138 of the Evidence Act 1995 (NSW) — Whether House v The King error required — Whether open to appeal court to decide admissibility for itself — Discretion to acquit or order retrial affected by interests of justice, which linked to admissibility

Catchwords:

CRIMINAL PROCEDURE — Trial — Directions to jury on intoxication and intent — Where oral directions said to have introduced a staged approach — Where oral directions said to have reversed the onus and undermined the criminal standard of proof — Leave to appeal refused

Catchwords:

CRIMINAL LAW – conviction appeal – applicant pleaded guilty to supplying cannabis plant – no evidence to establish that offence – should have been charged with supply cannabis leaf – Crown concedes error

Catchwords:

CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

Catchwords:

CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Open justice – Presumption in favour of open justice – Inutility in making orders under Act where there are other mechanisms having similar effect – Where limited order “necessary” to prevent prejudice to administration of justice CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Undue distress and embarrassment – Where undue distress and embarrassment is asserted by well known relative of applicant – Insufficient reason to order non-publication or suppression MEDIA AND COMMUNICATIONS – Open justice – Access to court files – Application for access – Where court proceedings occurred in open court – Access to file granted

Catchwords:

CRIME – appeal against conviction – offences of sexual and physical assault – question of obligation on prosecution to investigate accused person’s case – extent of Crown’s obligation to call witnesses – question of admissibility of evidence that implied sexual experience – whether verdict unsupported by the evidence

Catchwords:

SENTENCING – appeal against sentence – attempted possession of border-controlled drug – applicant sentenced before co-offender – expectation of equality – whether disparity in sentences before discount gave rise to justifiable sense of grievance – whether co-offender’s lesser sentence justified by lesser role in offending, youth and more favourable subjective circumstances – judge who sentenced both expressly addressed question of parity

Catchwords:

CRIME – appeals – appeal against sentence – sentencing of children – 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm – whether sentencing judge erred in failing to have regard to youth in assessing moral culpability and weight afforded to general deterrence – errors established – where same sentencing judge sentenced co-offender – where same errors were established and co-offender re-sentenced on appeal – whether re-sentence imposed upon co-offender gives rise to a justifiable sense of grievance – issue of parity warrants re-sentence – appeal upheld – re-sentence

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – unreasonable verdict not supported by the evidence – whether the evidence adduced at trial was capable of proving guilt beyond reasonable doubt – jury’s advantage in seeing and hearing the evidence – verdict not unreasonable – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction - whether trial miscarried because of Crown’s closing address – whether it was improper for the Crown to invite the jury to “jettison” the evidence of a witness – no complaint made at trial – no miscarriage established – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether the trial miscarried because evidence which was audible but not transcribed resulted in the trial being conducted as though it had not been adduced – miscarriage established – appeal allowed – retrial ordered

Catchwords:

CRIME – appeals – appeal against conviction – wounding with intent to cause grievous bodily harm – complainant received knife wound in altercation involving a number of men – only issue was whether applicant was wielding knife – whether jury’s verdict unreasonable – whether inconsistencies in evidence gave rise to reasonable doubt – open to jury to be satisfied beyond reasonable doubt of applicant’s guilt – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – conspiracy to commit misconduct in public office – common law offence – choice of comparable sentences – whether sentence manifestly excessive SENTENCING – common law offence with no maximum penalty – use of statutory analogues for guidance – whether statutory offences in other jurisdictions provide guidance as to unexpressed intention of local State legislature – whether sentencing judge failed to give appropriate weight to proposed Commonwealth analogue – whether obligation to explain departure from proposed analogue SENTENCING – challenge as to fact finding on sentence – whether sentencing in a circumstantial case must rely only on facts established beyond reasonable doubt – observations as to standard of review of assertion of mistaken facts

Catchwords:

CRIME – appeals – appeal against sentence – recklessly dealing in proceeds of crime – where offence involved only the moving of money on one day – where offender had been to premises on six prior occasions – whether sentencing judge erred by relying on prior attendance – prior attendance informed overall assessment of criminality – where co-offender charged additionally with two drug trafficking offences – where roles of the two offenders differed for common offence and different subjective factors existed – where sentencing judge gave express consideration to issue of parity – no justifiable sense of grievance – appeal dismissed SENTENCING – appeals against sentence – powers of court – Crimes Act 1914 (Cth) s 19AHA – where sentencing judge erroneously amended sentencing order – whether Court of Criminal Appeal can amend clerical error of another court – held Court does not have power under Supreme Court (Criminal Appeal Rules) 2021 (NSW) – application to correct must be made to District Court

Catchwords:

CRIME – Appeals – Appeal against conviction – Conspiracy to import commercial quantity of cocaine – Whether miscarriage occasioned by asserted incompetence of legal representatives – Whether directions to jury inadequate – Whether trial judge erred by admitting evidence of prior drug importation as tendency evidence – Whether Crown elicited coincidence evidence without giving notice – Whether trial judge erred by declining to discharge jury after foreperson inadvertently provided draft submissions on exclusion of evidence – Whether trial judge erred by declining to discharge jury following closing address of co-accused CRIME – Appeals – Appeal against sentence – Whether finding that applicant was a ‘principal’ in the conspiracy open on the evidence – Whether weight of imported drug treated as the primary sentencing consideration – Whether prior criminal record used to determine objective seriousness of offence – Whether life sentence manifestly excessive

Catchwords:

CRIME – appeal against conviction – causing grievous bodily harm with intent – joint criminal enterprise – physical altercation between three people – evidence against first accused overwhelming – injuries to victim serious – jury directed that if not satisfied of the existence of a joint criminal enterprise they must acquit both accused – whether direction wrong in law – whether miscarriage of justice

Catchwords:

SENTENCING – whether sentence should be backdated or reduced to take account of wrongful imprisonment on unrelated charges – consideration of interstate authorities – no basis for departing from existing position in New South Wales SENTENCING – federal offenders – sentence by State court for offence against Commonwealth law – consistency CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of border-controlled drug – MDMA – pure weight of 594.43 kilograms – parity – manifest excess – leave to appeal granted – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of MDMA – tobacco smuggling – Commonwealth offences – aggregate sentence - whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – where sentencing judge found applicant was willing and trusted participant who expected significant financial gain – where sentencing judge did not err in finding that involvement of undercover operative did not substantially diminish applicant’s culpability – principles of sentencing offenders involved in controlled operations – relevance of specific and general deterrence in controlled operations – discount of 25% afforded for applicant’s guilty plea – where discount was appropriate – issues of parity with co-offender –where applicant could have no justifiable sense of grievance – whether aggregate sentence manifestly excessive – where undiscounted indicative sentences fell outside range of reasonable sentences in circumstances of offending – where notional accumulation was unreasonable – appeal against sentence allowed – imposition of aggregate sentence for multiple Commonwealth offences – applicant re-sentenced

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Joint criminal enterprise and extended joint criminal enterprise — Where admissions were made by the applicant against own interests — Where admissions are inconsistent — Whether admissions sufficiently reliable to found a guilty verdict — Whether jury had a natural advantage in hearing phone intercepts and viewing police interviews CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle

Catchwords:

APPEALS — CRIME — appeal against conviction — indecent assault of a person under 16 — aggravated sexual intercourse — directions — consciousness of guilt reasoning — evidence of applicant’s conduct in response to allegations — whether implied admission of guilt — whether miscarriage of justice occasioned by prosecutor inviting consciousness of guilt reasoning in closing address — whether trial judge failed to direct jury adequately — difference between Edwards and Zoneff directions

Catchwords:

CRIME — appeals — appeal against sentence — by Crown against inadequacy — respondent convicted of 12 sexual offences relating to two young foreign nationals — offences involving sexual assaults, recording and dissemination and threat to disseminate intimate video — whether sentencing judge failed to take into significant account emotional harm as an aggravating factor — s 21A(2)(g) Crimes Sentencing Procedure Act — whether sentencing judge misapplied principle of totality in setting aggregate sentence — whether sentence manifestly inadequate — where complainant suffered substantial emotional harm — alienation from family and friends in Nepal — where harm went well beyond what could ordinarily be expected — where sentencing judge erred in not finding substantial emotional harm as a matter of aggravation — whether aggravating factor applied to all the charges - sentence manifestly inadequate - appeal allowed — respondent resentenced

Catchwords:

CRIME – appeals – application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for separate trials – alleged home invasion – where case against each applicant is weak – where not established that there will be any evidence led at a joint trial which will be inadmissible as against the applicants – leave granted – appeal dismissed

Catchwords:

CRIME – appeals – conviction appeal – judge alone trial – driver found not guilty of dangerous driving but guilty of negligent driving – whether verdict of not guilty of dangerous driving consistent with verdict of guilty for negligent driving – inconsistency found – appeal allowed

Catchwords:

CRIMES – appeals – appeals against sentence – whether error because of backdating the commencement of a sentence by more than the actual time spent on remand in order to take into account conditions and occurrences while offender on remand – whether s 47(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) permits consideration of conditions experienced in pre-sentence custody as well as the period of such custody

Catchwords:

APPEALS — CRIME — appeal against conviction — indecent assault of a child — possess child abuse material — sexual interest in children and BDSM — whether trial judge reversed onus of proof — unreasonable verdict — fresh evidence — whether Court would have reached different verdict if it had been aware of evidence of witness’s sexual interest APPEALS — CRIME — PRACTICE AND PROCEDURE — directions — trial by judge alone — whether trial judge should have made direction in accordance with s 165 of Evidence Act — whether witness criminally concerned in events — whether trial judge should have made a Murray direction — whether trial judge failed to apply Liberato direction

Catchwords:

CRIME — appeals — appeal against conviction —applicant convicted of three sexual offences against two child complainants — where application under Criminal Procedure Act 1986 (NSW), s 306Y for order that one complainant’s evidence not be given by JIRT interview — whether judge erred in not being satisfied that not in “interests of justice” for that evidence to be given — where trial judge gave a direction and warning that JIRT interview evidence may be unreliable due to manner in which interview conducted — whether that direction and warning was sufficient having regard to Evidence Act, ss 165, 165A — whether guilty verdicts on three offences unreasonable

Catchwords:

CRIME - appeal - conviction - fresh evidence not available at trial – miscarriage of justice - whether significant possibility jury acting reasonably would acquit appellant

Catchwords:

CRIME – appeals – appeals against sentence – offence of doing an act in preparation for, or planning, a terrorist act – whether sentencing judge erred in determining objective seriousness – large body of material addressing offender’s youth, lack of insight, mental illness, remorse and prospect of rehabilitation – whether error in failing to make findings in respect of offender’s subjective case – whether sentence manifestly excessive – significance for purpose of resentencing of harsher conditions of imprisonment than could have been foreseen – significance of subsequently enacted legislation restricting availability of parole – appeal allowed and offender resentenced

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – indigenous offender – deprived background - Bugmy v The Queen principles – whether sentencing judge gave effect to these principles having regard to the applicant’s circumstances – re-sentence – intensive corrections order

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal – possession of child abuse material – specific deterrence – general deterrence – sentencing factors – applicant resentenced – no lesser sentenced warranted

Catchwords:

CRIME – appeals – appeal against sentence imposed in the Drug Court – whether early pleas of guilty taken into account – whether irrelevant consideration taken into account when assessing objective seriousness – appeal allowed – appellant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – assistance to authorities – determination of discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether sentencing judge erred in determining that the applicant was not entitled to a discount for promised assistance in respect of unrelated offending – appeal upheld – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – offence of knowingly take part in the supply of a large commercial quantity of methylamphetamine –manifest excess – appeal dismissed

Catchwords:

CRIME – appeal against sentence – assessment of objective gravity – asserted failure of sentencing judge to differentiate the criminality of two related offences – use of singular rather than plural relied on to point to error – question of manifest excess

Catchwords:

APPEALS — CRIMINAL LAW — appeal against sentence — reckless wounding in company — Children’s Court — young person — control order — whether control order ought be suspended — re-sentence — whether lesser sentence is warranted

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where Applicant convicted of being an accessory after the fact to manslaughter by excessive self-defence – whether Crown excluded the reasonable possibility that the Applicant believed that her co-accused saw her being threatened with a gun on the street such that at the time she assisted him in evading arrest after the fact, she believed her co-accused’s conduct was a reasonable response to the circumstances as she believed he perceived them – where the co-accused and eyewitnesses did not see the deceased threaten the Applicant with a gun on the street – where gun found in close proximity to site where the deceased was struck with the samurai sword CRIME – appeals – appeal against conviction – miscarriage of justice – consciousness of guilt reasoning – where Crown relied on post-offence conduct as part of a circumstantial case as to co-accused’s state of mind at the time of the sword strike rather than as an implied admission or independent evidence of guilt – where Applicant and co-accused fled the scene, disposed of various items from the co-accused’s house and concealed the bloodied samurai sword – where no objection raised or direction sought by Applicant’s trial counsel

Catchwords:

APPEALS — CRIME — Appeal against conviction — sexual intercourse without consent in circumstances of aggravation — whether there has been a miscarriage of justice — jury directions — whether trial miscarried because of directions given in relation to consent and intoxication — indirect answer to jury question whether complainant could consent if substantially intoxicated — Crown case that complainant did not consent — whether trial miscarried by admission of evidence prejudicial to applicant — no objection during trial

Catchwords:

CRIMINAL LAW – sentence appeal – error in commencement date – commencement date in breach of s 47(5) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CRIME — Appeals — Appeal against sentence — Backdating commencement of sentence — Taking into account immigration detention — Obligation to give reasons

Catchwords:

CRIMINAL LAW – interlocutory appeal – accused seeks to adduce co-accused’s conversation with police – excluded by trial judge – accused applies for separate trial to adduce evidence – probative value of evidence – whether evidence exculpatory – whether risk of injustice to accused if not able to adduce evidence in separate trial – leave to appeal refused.

Catchwords:

CRIME — Appeals — Appeal against sentence – extension of time for leave to appeal – manifest excess – where applicant’s medical condition has deteriorated since time of sentencing – whether sentencing judge failed to appreciate the significance of the applicant’s medical condition – fresh evidence

Catchwords:

SENTENCING – possession of firearms and ammunition – receipt of stolen goods – possession of stolen motor vehicle – pervert course of justice – aggregate sentence – whether sentencing judge erred in concluding applicant was on a bond at time of offending – bail conditions as quasi custody – whether form 1 offence of not stop in police pursuit should have been charged as lesser offence – post sentence assault in custody – effect of pandemic restrictions – comparable cases – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.

Catchwords:

CRIME – Appeals – Appeals against conviction – Incompetence of counsel – Whether defence counsel failed to put defence to jury properly – Whether the applicant was not properly advised of giving evidence – Whether there was a miscarriage of justice

Catchwords:

CRIMINAL LAW – appeals – Crown appeal against sentence – findings of objective seriousness – whether findings of the sentencing judge were open – appeal dismissed CRIMINAL LAW – appeals – Crown appeal against sentence - manifest inadequacy – aggregate sentence – totality – significance of applicant’s subjective case – appeal dismissed

Catchwords:

CRIME – appeal against conviction – judge-alone trial – applicant charged with three counts of sexual intercourse without consent – applicant pleaded guilty to digital penetration, and not guilty to counts of penile vaginal penetration and cunnilingus – all offending alleged to take place upon same complainant on same occasion – applicant found guilty of second and third counts – whether primary judge’s findings of guilt unreasonable and cannot be supported by evidence – significance of inconsistencies in complaint evidence – significance of primary judge’s assessment of complainant’s testimony – significance of complainant’s language difficulties – significance of malleability of memory – consideration of appellate review on basis findings of guilt unreasonable – appeal dismissed by majority

Catchwords:

CRIME – appeal against conviction – murder – judge-alone trial – whether partial defence of substantial impairment should have been upheld – whether impairment so substantial as to warrant liability for murder being reduced to manslaughter – whether factual error in one aspect of evaluative conclusion by judge – no error established

Catchwords:

CRIMINAL LAW – appeal – applicant faced 11 charges of sexual offences against two children SS and NL – convicted on counts 1 to 3 against SS and count 9 against NL – acquitted of counts 4 to 8, 10 and 11 against NL – SS participated in five interviews with police conducted over 13 months and gave pre-recorded evidence for the trial – evidence in support of counts 1 and 2 provided in the third interview and evidence in support of count 3 in the fifth interview – SS recanted her evidence in the fourth interview – NL participated in three interviews and gave pre-recorded evidence for the trial – SS supported NL’s evidence on count 9 but not the other counts – prosecution called evidence from “expert” with tertiary qualifications in psychology and law – based on review of various studies expert gave evidence as what the “research” indicated was the typical response of child victims to sexual assault – expert also gave evidence of research about child sex offenders acting in a brazen manner – held expert was qualified by reason of her study to give evidence of responses of child victims – held expert not qualified to give evidence of the behaviour of child sex offenders generally – ground upheld – guilty verdicts not inconsistent with acquittals – jury entitled to conclude that SS provided “something additional” to support the evidence of NL – verdicts of guilty not unreasonable – reasonably open to the jury to be satisfied of applicant’s guilt – retrial ordered

Catchwords:

CRIMES – appeals – appeal against conviction – sexual offences against child – asserted unreasonableness or questionable supportability of verdicts – where complainant six years old at time of alleged offending and nine years old at trial – asserted inconsistency of complainant’s evidence – where allegations themselves said to be so inherently fantastical jury must have had doubt – nature of child sexual offending – nature of allegations described within experience of courts and the community – jury advantage in observing witnesses – verdicts not unreasonable

Catchwords:

CRIME – appeal – appeal against sentence – murder – trial by judge alone – whether mode of trial per se capable of facilitating the administration of justice for purposes of Crimes (Sentencing Procedure) Act 1999 s 22A – whether accused’s decision to opt for trial by judge alone attracts consideration of a lesser sentence – whether trial judge considered mode of trial neutral in the facilitation of its conduct or factored in irrelevant consideration of motive to seek trial by judge alone – whether error established – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Attempt to possess unlawfully imported border controlled drug – Methamphetamine – Commercial quantity – Observed conduct of applicant limited to two occasions – Whether sentence manifestly excessive – Whether sentencing judge erred in assessment of or lack of discernible finding as to objective seriousness

Catchwords:

EVIDENCE — Tendency evidence — Multiple complainants — Significant probative value — Need for a sufficient link between distinct events — No need for link to be peculiar — Evidence of tendency of accused to adopt particular kind of persistence in the pursuit of his sexual interests — Whether relevant evidence is proposed tendency evidence upon which primary judge ruled or evidence as actually admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle CRIME — Appeals — Appeal against sentence — Failing to make any proper assessment of the objective seriousness of the offending