Recent decisions for Court of Criminal Appeal

Catchwords:

CRIME – appeals – Crown appeal – whether sentencing judge erred in assessment of objective seriousness, or alternatively, mistaking the facts – whether sentence manifestly inadequate – sexual offences against estranged wife with related assault offences on schedule – two-year-old child present for some offending – no criminal history – need for clear general deterrence and denunciation – appeal allowed – sentence below quashed – sentence increased

Catchwords:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Principles where statute provides mandatory minimum sentence – Whether sentence imposed failed to reflect the objective seriousness of the offence having regard to the nature and circumstances of the offender CRIME – Appeals – Appeal against sentence – Whether sentencing judge failed to take into account a relevant consideration – Where offence committed while respondent subject to conditional liberty – Whether discretion to re-sentence enlivened

Catchwords:

CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment or order — Interlocutory order dismissing an application to discharge the jury — Application dealing with admissibility of evidence — Application brought 45 days into four-month trial — No evidence of detriment to applicant — No immediate objection taken by counsel below to disputed evidence — No cross-examination directed to area of controversy — Whether Crown ought be bound by its submissions made much earlier in the proceedings — Decision within discretion which the trial Judge had and properly exercised — Application dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence – child sexual assault – whether error in taking into account abuse of a position of trust where for offences under s 66C(2) the victim being under the authority of the offender was an element of the offence – whether error in failing to explain abuse of trust and abuse of authority – relationship between father and daughter – where reasons provided by judge for finding breach of trust as an aggravating factor – whether sentence manifestly excessive – need for general deterrence in child sexual assault

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:

CRIME – appeals – appeal against conviction – judge-alone trial – where applicant found guilty of five counts of sexual offences – where applicant gave evidence conceding he had opportunity to commit offences but denying offending – where trial judge did not believe applicant’s denials – whether trial judge’s reasons for rejecting applicant’s evidence inadequate – whether verdict unreasonable and cannot be supported by evidence CRIME – appeals – appeal against conviction – fresh evidence – whether miscarriage of justice due to unavailability of fresh evidence at trial

Catchwords:

CRIME – appeal – sentencing – dishonestly obtain credit of $2.56 million by deception – recruiting persons to assist in criminal activity – fraud in the course of acquiring luxury motor vehicles – substantial sum lost by credit providers – wide-ranging complaints of error as well as assertion sentence manifestly excessive – evidence of events post-sentencing – no merit – no point of principle

Catchwords:

SENTENCING — Appeal against sentence — Co-offenders — Whether insufficient differentiation between the sentences to reflect differences in roles and more favourable subjective case

Catchwords:

CRIME – appeal against sentence – where applicant involved in a drug supply enterprise – whether error in assessment of objective seriousness – characterisation of objective seriousness of offending on a notional scale – parity – whether a lesser sentence warranted in law

Catchwords:

CRIME – sentencing – child sex offences – persistent sexual abuse of a child – Crimes Act 1900 (NSW), s 66EA – offences in NSW and Qld – sexual touching and intercourse SENTENCING – appeal against sentence – objective seriousness – nine-year old victim – 40-year-old offender – victim was offender’s stepdaughter – five ingredient offences occurred over a week – serious breach of trust – sentencing judge found offending to be below mid-range, but above low range – no error SENTENCING – appeal against sentence – manifest excess – 35% discount for early plea and assistance to authorities – comparable cases – Burr v R [2020] NSWCCA 282; Eacott (a pseudonym) v R [2019] NSWCCA 158; Mills v R [2017] NSWCCA 87; GP (a pseudonym) v R [2021] NSWCCA 180, considered – starting-point beyond range SENTENCING – re-sentencing on appeal –reasonable prospects of rehabilitation – general deterrence less relevant with intellectually unsophisticated offender – discount assessed by sentencing judge applied

Catchwords:

CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” CRIME — appeals — appeal against sentence — re-sentence – obtaining a financial advantage by deception from the Commonwealth, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth) — where offending involved social security fraud — where offender underreported or failed to report income to authorities and thereby received benefits to which she was not entitled — the proper treatment of general deterrence in sentencing for social security fraud offences — where offender was the victim of physical, emotional and financial abuse perpetrated by her former partner — where the offender’s incarceration resulted in hardship to her family and children JUDGMENTS AND ORDERS — court of appeal — review of previous decision of the court of appeal — whether previous decision plainly wrong — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” SENTENCING — appeal against sentence — general principles — relevant considerations for a court sentencing a federal offender pursuant to s 16A of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” SENTENCING — federal offenders — relevant considerations — hardship — to third parties — whether s 16A(2)(p) of the Crimes Act 1914 (Cth) requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong” STATUTORY INTERPRETATION — precedent — federal legislation — the importance of comity and consistency between intermediate appellate courts in the interpretation of federal legislation — the proper construction of s 16A(2)(p) of the Crimes Act 1914 (Cth) — whether s 16A(2)(p) of the Act requires “exceptional hardship” to be established in order for a court to have regard to, or attach a specified weight to, the probable effect of a sentence or order on an offender’s family or dependants — whether s 16A of the Act was intended to alter or displace the common law with respect to the relevance and treatment of hardship to third parties — whether previous decisions of the New South Wales Court of Criminal Appeal and other intermediate appellate courts holding that “exceptional hardship” is required are “plainly wrong”

Catchwords:

CRIME – Appeals – Appeal against sentence – Miscalculation as to backdate of sentence – Concurrence between parties – Not an error which reopens sentencing discretion – Applicant re-sentence with correct backdate applied

Catchwords:

CRIME — appeals — appeal against sentence — federal offences — attempted exportation of regulated native specimens — possession of CITES-regulated specimens — manifest excess — sentence unreasonable or plainly unjust — resentenced

Catchwords:

CRIMINAL PROCEDURE — Stay of proceedings — Application for permanent stay refused by primary judge CRIME — Significant pre-trial publicity in the form of popular podcast and associated reports, which included matters which would be inadmissible at trial and prejudicial to the accused — Whether directions would be sufficient to ameliorate prejudice — Rare circumstances in which pre-trial publicity warrants a permanent stay of criminal proceedings CRIME — Appeals — Interlocutory appeal — By accused against interlocutory judgment — Leave to appeal against refusal of a permanent stay — Further evidence admitted — Whether the primary judge’s discretion miscarried — The primary judge applied the correct test, did not fail to take into account relevant considerations and it was not unreasonable for the primary judge to refuse a permanent stay — Consideration of authorities concerning the grant of a permanent stay and the question of delay — Prejudice to the accused occasioned by pre-trial publicity and delay can be remedied or sufficiently ameliorated — Trust placed by the administration of justice in the ability of jurors to abide by directions

Catchwords:

CRIMINAL PROCEDURE – costs – application for certificate under Costs in Criminal Cases Act 1967 – successful appeal against conviction – where the Crown case critically dependent upon the credibility of Witness B – institution of proceedings unreasonable

Catchwords:

CRIME – appeal against sentence – robbery whilst armed – robbery upon service station attendant – question of misapplication of guideline judgment – question of the parity principle where the co-offender was sentence in the Children’s Court – question of manifest excess – question of the distinction between aggravating factors and the assessment of objective gravity

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

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Possession of firearms – Circumstantial case – Firearms and ammunition containing applicant’s DNA found in wall cavity of premises leased by applicant’s business – Whether reasonable possibility of secondary transfer of DNA during police search excluded – Presumption of possession under Firearms Act 1996 (NSW), s 4A on some counts – Open to jury to be satisfied beyond reasonable doubt of applicant’s guilt of all counts – Appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – firearms and drug offences – whether judge erred in finding special circumstances and increasing balance of term of sentence – whether judge erred in taking into account offences on Forms 1 – error not established

Catchwords:

CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where appellant was convicted by a jury of murder – Where principal Crown witness gave an account of the shooting of the deceased – Where that account was contradicted by the sworn evidence of the appellant – Where the trial judge gave directions in terms of the jury having to “choose” or “decide” between the two accounts – No direction given to the jury regarding fact that the appellant had given evidence – No direction given to the jury as to how the appellant’s evidence should be assessed in circumstances where the Crown had the onus of proof – Where the trial judge refused an application for a Liberato direction – Directions of trial judge erroneous – Refusal to give a Liberato direction also erroneous – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Summing-up of trial judge – Where trial judge expressed a number of views in the course of the summing-up which were critical of aspects of the appellant’s evidence in the course of his summing-up – Absence of any clearly defined summary of the appellant’s case in the summing up – Where the trial judge put propositions to the jury which had not been advanced by the Crown – Summing-up generally lacking in fairness and balance – Appeal allowed and new trial ordered – Observations as to the extent to which comments by the trial judge as to the evidence and the facts is permissible CRIMINAL LAW – Juries – Where trial judge discharged a juror at a relatively early stage of the appellant’s trial – Where the trial judge subsequently discharged two other jurors on the basis of the stress and anxiety associated with the trial – Where trial judge then refused an application to discharge the whole jury following the discharge of the third juror – Where verdict of guilty followed virtually immediately following the discharge of the third juror – Clear inference that the views of the third juror were at odds with the majority – Risk of miscarriage of justice arising from the refusal of the trial judge to discharge the jury – Appeal allowed and new trial ordered CRIMINAL LAW – Practice and procedure – Directions of trial judge – Where jury indicated that they were unable to reach a unanimous verdict – Where trial judge then gave what he described as an “adaptation” of a Black direction – Where that direction departed from the model direction and omitted a material part – Where the direction which was given contributed to the miscarriage of justice which arose from the subsequent failure to discharge the jury – Appeal allowed and new trial ordered – Observations as to the undesirability of departing from the terms of the model direction which is given in response to an indication that the jury are unable to reach a unanimous verdict CRIMINAL LAW – Practice and procedure – Juries – Where deliberations were permitted to continue on two separate occasions for substantial periods of time in the absence of all members of the jury being present – Where the trial judge had not made any order for separation of the jury – Where the trial judge had not directed the jury at any stage that deliberations should only take place when all members of the jury were present – Whether either instance of separation amounted to an irregularity – If so whether such irregularity gave rise to a miscarriage of justice and was thus material – Material irregularity established – Appeal allowed and new trial ordered – Observations as to the importance of making orders allowing a jury to separate during deliberations – Further observations as to the importance of directing juries at the commencement of, and during, the trial that deliberations must only be undertaken when all members of the jury are present

Catchwords:

CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — consideration of the probable effect of a sentence or order on an offender’s family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where offender was sentenced before the decision of Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 — where sentencing judge did not take into account evidence of hardship to third parties for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship — where error conceded by the Crown on appeal — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) CRIME — appeals — appeal against sentence — re-sentence — offences involving taxation fraud and identity theft — where offender used position as payroll officer to access identification information of other employees, produced false identification documents, and illegitimately obtained tax refunds by lodging false tax returns on behalf of others — where offender relied upon hardship to his family caused by a term of imprisonment, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where asserted hardship to third parties included the cessation of financial support from the offender, which was derived to some extent from offending conduct — where sentencing judge imposed a sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 2 months — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) SENTENCING — appeal against sentence — misapplication of principle — sentencing for federal offences — consideration of the probable effect of a sentence or order on an offender’s family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where offender was sentenced before the decision of Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 — where sentencing judge did not take into account evidence of hardship to third parties for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship — where error conceded by the Crown on appeal — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) SENTENCING — appeal against sentence — re-sentence — offences involving taxation fraud and identity theft — where offender used position as payroll officer to access identification information of other employees, produced false identification documents, and illegitimately obtained tax refunds by lodging false tax returns on behalf of others — where offender relied upon hardship to his family caused by a term of imprisonment, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where asserted hardship to third parties included the cessation of financial support from the offender, which was derived to some extent from offending conduct — where sentencing judge imposed a sentence of 4 years’ imprisonment, with a non-parole period of 2 years and 2 months — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW)

Catchwords:

CRIME – Appeals – Appeal against interlocutory decision of District Court judge – Where each applicant charged with an offence contrary to s 307.8 of the Criminal Code (Cth) (“the Code”) – Where primary judge refused to grant a permanent stay of proceedings – Whether the decision should be set aside because the proceedings were an abuse of process – Whether proceeding under s 307.8 of the Code, instead of s 307.5 of the Code, amounted to an abuse of process where the prosecution could prove that unlawful importation occurred – Consideration of the legislative history of Division 307 of the Code

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Manifest excess – Where applicant sentenced to a term of imprisonment for one count of supplying a prohibited drug – Whether sentence manifestly excessive – Where applicant submitted that the nominal starting point of the sentence was outside the appropriate range – Consideration of comparable cases and sentencing statistics relied on by the applicant

Catchwords:

CRIME – Appeal against conviction – leave to appeal – judge alone trial – application to rely on new and fresh evidence – whether excessive intervention by trial judge – whether judge’s questioning caused miscarriage of justice – whether prosecution complied with disclosure obligations – data downloaded from applicant’s mobile phones – whether data provided in advance of trial – whether guilty verdicts unreasonable or unsupported by the evidence CRIME – Appeal against sentence – leave to appeal – appeal against sentence – two offences of perverting the course of justice and one offence of perjury – whether error in assessment of need for specific deterrence – whether aggregate sentence double punishment or crushing – whether failure to give adequate weight to conditions in custody – whether sentence was manifestly excessive CRIME – Bail – bail pending appeal – where two previous appeal bail applications dismissed by Court of appeal – whether change in circumstances since previous application – Bail Act 2013 (NSW) ss 74(1), (3)

Catchwords:

CRIME – appeals – appeal against conviction – circumstances in which Court of Criminal Appeal may quash a conviction entered after a plea of guilty – where accused entered unexpected guilty plea at arraignment – where accused made application to primary judge for leave to withdraw guilty plea very shortly after it was entered – where application was refused and accused was convicted and sentenced – correct legal test to be applied by judge on an application for leave to withdraw a guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – whether leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed CRIMINAL PROCEDURE – entry of pleas – withdrawal of guilty plea – correct legal test to be applied by judge on application for leave to withdraw guilty plea before conviction and sentence – whether necessary to demonstrate that a miscarriage of justice would occur if leave were refused – distinction between application to withdraw guilty plea prior to conviction and attempt to go behind guilty plea for the first time on appeal – whether certain previous authorities wrongly decided – leave to withdraw guilty plea to be granted where in the interests of justice to do so – where application of wrong legal test to application to withdraw a guilty plea resulting in conviction for murder amounted to miscarriage of justice – considerations bearing upon “interests of justice” test in the context of application to withdraw guilty plea prior to conviction and sentence – where not established under proviso in s 6 Criminal Appeal Act that no substantial miscarriage of justice would occur if appeal dismissed

Catchwords:

APPEAL – applicant stood trial with a co-accused on indictment that contained eleven counts – Counts 1 to 8 charged the applicant – Counts 1 to 3 charged the applicant with supplying drugs to the complainant – applicant pleaded guilty to Counts 1 and 2 – Count 3 charged the supply of the stupefying drug “GBH” or “G” – Count 4 charged the applicant with having sexual intercourse with a child above the age of 14 and below the age of 16 years in circumstances of aggravation – aggravating circumstance was that applicant took advantage of complainant being under the influence of a drug – Crown alleged that drug was the three drugs the subject of Counts 1 to 3 including “G” – Counts 5 to 8 charged the applicant with other sexual offences concerning the complainant – complainant was 14 years old – With Counts 1 to 4, Crown alleged applicant met her at train station, supplied her with drugs and had sex with her at home – With Counts 5 to 8, Crown alleged that he then took complainant to nightclub or brothel and had sex – applicant admitted sex the subject of Count 4 but denied supplying her with G, having sex at the “adult shop” and said he believed she was over 16 – jury convicted on Counts 3 and 4 and acquitted on Counts 5 to 8 – whether verdicts inconsistent – HELD: not inconsistent as verdicts explicable on basis that jury believed complainant but required additional proof on Counts 5 to 8 that sexual contact occurred – whether verdicts on Counts 3 and 4 unreasonable and could not be supported by the evidence – HELD: by all of the Court that it was reasonably open to the jury to find the complainant’s evidence as honest and that she told the applicant she was 14 years of age – by a majority that it was reasonably open to the jury to find that the applicant supplied her with “G” – appeal dismissed.

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:

CRIMINAL LAW – evidence – admissibility – multiple counts of drug supply – where some offences admitted and others denied – cross-admissibility of evidence – where evidence not relied on as tendency evidence – whether admissible on any other basis – whether relevant to rebut accused person’s defence – whether relationship evidence – where co-offender in custody at the time of subsequent offending – risk of tendency reasoning – danger of unfair prejudice – whether directions able to cure risk of impermissible reasoning CRIMINAL LAW – adequacy of directions – whether anti-tendency direction required – risk of impermissible reasoning high – where direction not to reason “automatically” that accused guilty of other offences – whether Prosecutor’s address increased the risk of tendency reasoning

Catchwords:

CRIME – Appeals – Appeal against sentence – Dishonestly obtain financial advantage – Manifest excess – Where “exceptional hardship” specifically conceded not to exist before sentencing judge – Manifest excess ground not sustained – Leave to appeal refused

Catchwords:

CRIME – Appeals – Appeal against sentence – - Section 33(1)(a) of the Crimes Act 1900 (NSW) – Wounding with intent to cause grievous bodily harm – Determination of the objective seriousness of the offence – Sentencing judge made finding that injuries amounted to grievous bodily harm – Whether the principles in The Queen v De Simoni breached – Whether finding resulted in a miscarriage of justice – Sentencing judge entitled to take into account the injuries he did in the way he did

Catchwords:

APPEALS — Appeal against sentence — Severity — Whether sentence was manifestly excessive — Multiple offences — Accumulation, concurrency and totality — Where criminality involved in offences under the Child Protection (Offenders Registration) Act 2000 (NSW) is distinct from criminality of other offences

Catchwords:

CRIME – appeals – appeal against sentence – supply of prohibited drug – commercial and indictable quantity – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in assessment of the significance of the applicant’s deprived background to his moral culpability – whether sentence unreasonable or plainly unjust – no error demonstrated – leave to appeal granted – appeal dismissed

Catchwords:

CRIMINAL APPEAL – remittal for re-sentence from the High Court of Australia – High Court quashed all convictions subject to High Court appeal – remaining convictions not subject to appeal require re-sentence – no reason to depart from previous indicative sentences – no reason to depart from previous ratio between head sentence and non-parole period – applicant re-sentenced

Catchwords:

CRIMINAL LAW – conviction appeal – appeal from decision of the District Court – judge alone trial – whether trial judge’s conduct gave rise to procedural unfairness or an apprehension of bias causing a miscarriage of justice – whether wrong test applied in determining whether appellant had established that he was mentally ill at the time of the alleged offence – whether a special verdict of act proven but not criminally responsible should be entered pursuant to s 7(4) of the Criminal Appeal Act 1912 – appeal allowed – special verdicts entered

Catchwords:

CRIME — Appeals — Appeal against sentence — Failure to determine objective criminality of offence — Ground upheld CRIME — Appeals — Appeal against sentence — Failure to take account of “Bugmy factors” — No relevant evidence of such factors — No relevant submission made below — Ground dismissed CRIME — Appeals — Appeal against sentence — Re-sentence — No lesser sentence warranted

Catchwords:

CRIME – appeal against sentence – specially aggravated break enter commit serious indictable offence being assault occasioning actual bodily harm – Form 1 offence of intentionally damaging property – principal offence involved violence and was committed in company – question of whether aggravating features under s 21 Crimes (Sentencing Procedure) Act 1999 (NSW) were incorrectly held to exist – question of error of fact made by sentencing judge - factual error established – no lesser sentence warranted – appeal dismissed.

Catchwords:

CRIMINAL LAW – sentencing – application of early appropriate guilty plea provisions – prescriptive scheme for sentencing discounts – where instructions to plead guilty provided well in advance of trial – instructions communicated to prosecutor but not to court – arrangements not made for entry of plea 14 days before trial date – applicant not represented at pre-trial call-over – court notified of plea one day after 14 day cut off for larger sentencing discount – applicant’s case fell between the cracks – material irregularity in sentencing proceedings – whether proceedings miscarried – whether practical injustice resulted – where prescriptive nature of provisions do not allow the appellate court to adjust level of discount – significant material tendered on the usual basis – lesser sentence warranted – applicant re-sentenced

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice – summing up – directions to jury – circumstantial case – applicable principles – McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – whether summing up so lacking in balance and unfair as to occasion a miscarriage of justice – three complaints of substance – complaints made out relevant to the two most significant circumstances relied on in the Crown case – unfairness in the manner in which the jury was directed established

Catchwords:

CRIMINAL LAW – release application – sophisticated fraud and money laundering offences – extensive criminal network – applicant’s role limited – modest community ties – consideration of bail concerns – whether unacceptable risk – length of remand – onerous conditions capable of mitigating risk – conditional bail granted – no question of principle

Catchwords:

CRIMINAL LAW – conviction appeal – applicant found guilty of one count of sexual assault – trial by judge alone – context evidence as to systemic sexual assault of victim, siblings and cousins by other members of the family – whether verdict was unreasonable and cannot be supported by the evidence – approach to trial by judge alone – asserted inconsistencies and delay by victim in coming forward – ground rejected – appeal dismissed.

Catchwords:

CRIME — violent offences — choking, suffocation or strangulation — s 37(1A) of the Crimes Act 1900 — meaning of “intentionally chokes” — declaration that “intentionally chokes” means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head” CRIME — appeals — appeal against directed acquittal — where primary judge directed acquittal for intentional choking — direction based on erroneous construction of “intentionally chokes” — where it was open on the evidence for the jury to find “choking” on its correct construction CRIME — appeals — appeal against conviction — inconsistent verdicts — whether conviction in respect of sequence 4 is inconsistent with acquittal in respect of sequences 1-3 and acquittal by jury in respect of counts 1 and 2 — where evidence of witness in relation to sequence 4 was supported by evidence of bruising — no inconsistency in verdicts CRIME — appeals — appeal against sentence — manifest excess — no error of principle demonstrated CRIME — appeals — discretion not to remit matter for retrial — where accused has served a longer time in prison than the head sentence imposed STATUTORY INTERPRETATION — legislative purpose — s 37(1A) of the Crimes Act 1900 (NSW) — meaning of “intentionally chokes” — context of the provision — where there is clear legislative intention to deter controlling behaviours by perpetrators of family and domestic violence — purpose of provision to prohibit conduct capable of restricting breathing and/or blood flow to or from the head

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – aggravated breaking and entering in company and committing a serious indictable offence in circumstances of special aggravation – whether sentencing judge erred in failing to find applicant’s lack of significant record of previous convictions as a mitigating factor

Catchwords:

CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Whether the sentencing judge erred in finding that the offending was aggravated by the fact that victims were police officers – Whether that finding reflected double counting – Whether the legislature specifically intended to protect police in enacting the statutory provision pursuant to which the applicant was charged – Where a number of other legislative provisions conferred a power of arrest on persons other than police – No error established CRIMINAL LAW – Offences – Sentence – Where applicant pleaded guilty to using an offensive weapon to avoid lawful apprehension or detention – Where applicant asked the sentencing judge to take into account an additional matter on a Form 1 of taking and driving a conveyance without consent – Where further matter of driving whilst disqualified contained in a certificate under s 166 of the Criminal Procedure Act 1986 (NSW) – Whether sentencing judge erred by taking into account the Form 1 offence when assessing the objective seriousness of the offence of driving whilst disqualified to which the Form 1 did not attach – Error established leading to the necessity to re-sentence – Serious offending requiring a strong element of general deterrence – Guarded prospects of rehabilitation dependent upon the applicant addressing his drug addiction – No lesser sentence warranted in law – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME – appeal against convictions and sentence for multiple sexual offences – extension of time in which to appeal – notice of appeal lodged more than three years after trial and sentencing – 35 proposed grounds of appeal – extension of time and leave granted for limited grounds as to convictions CRIME – appeal against convictions – miscarriage of justice – apprehension of bias of judge – trial by jury – judge’s language or conduct only relevant if in presence of jury – reference to “grooming” – whether reasonable juror might have apprehended judge might have formed opinion as to guilt of accused – self-represented accused – judge not expressing fixed view that accused groomed complainant – judge’s clarification and reformulation of accused’s questions in cross-examination of complainant CRIME – appeal against convictions – miscarriage of justice – procedural unfairness – self-represented accused – duty of trial judge to ensure fair trial – refusal of adjournment – role of trial judge to inform but not advise accused – advice as to right to object to evidence not extended to legal advice as to basis of objection to particular evidence – judge not obliged to interfere with prosecution address unless risk of miscarriage CRIME – appeal against convictions – unreasonable verdicts – finding that victims were sedated – compelling video evidence of state of complainant during abusive conduct – expert evidence supporting inference of sedation – no basis to doubt truthfulness and reliability of witness – accused admitted to performing sexual acts on complainant CRIME – appeal against sentence – aggregate sentence – errors in indicating sentences for individual offences – error in considering inapplicable standard non-parole period – factual error affecting culpability of offender – re-sentencing discretion engaged CRIME – appeal against sentence – re-sentence – serious sexual abuse of stepdaughter – offending persistent and regular over four years – sedation of victim and victim’s mother – offending video recorded for sexual gratification – late guilty pleas to video-recorded sexual assaults – convictions following trial on other offences – reflecting discounts for pleas in aggregate sentence – no arithmetical calculation for utilitarian discount – applicant’s health conditions considered – lesser aggregate sentence not warranted

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – whether the sentencing judge erred in identifying the elements of the offence – Criminal Code Act 1995 (Cth) s 400.3 – whether sentencing judge erred in making a finding of guilt under s 400.3(2)(b)(i) – De Simoni principle - whether the sentencing judge erred in assessing the discount to be afforded for the value of guilty plea – whether the sentence for the Money Laundering Offence was manifestly excessive – whether error in overall effective non-parole period – parity – leave to appeal granted - appeal allowed – re-sentence

Catchwords:

APPEAL – appeal against conviction – carrying out of project in contravention of conditions of approval – condition requiring bulk earthworks on site not to exceed a maximum exposed disturbed area – construction of condition – “site” on which bulk earthworks carried out – whether only parts of site on which earthworks carried out under condition or site more generally – misconstruction of “site” – bulk earthworks authorised but not undertaken under other consents – whether changes calculation of maximum exposed disturbed area – whether areas disturbed by winning of fill and placing of fill are both exposed disturbed areas – whether ambiguity of condition should have resulted in construction in favour of defendant – whether error in construction of “site” material – no substantial miscarriage of justice – maximum exposed disturbed area limit still exceeded

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:

PRACTICE AND PROCEDURE – appeal from interlocutory order – refusal of trial judge to grant leave to apply for trial by a judge alone less than 28 days prior to the date fixed for the trial – Crown opposed leave but if leave granted consented to order – accepted that application did not involve “judge shopping” – trial judge refused application because of “appearance” of judge shopping – trial judge erred in not considering that one accused could not apply earlier because other accused did not consent – trial judge erred in acting on basis that appearance of judge shopping could remain where it was accepted that neither applicant engaged in judge shopping – appeal allowed – leave granted – orders for judge alone trial made

Catchwords:

CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in limiting consideration of Bugmy and Fernando factors to special circumstances finding — where no such error demonstrated having regard to reasons as a whole CRIME — Appeals — Appeal against sentence — Failure to take into account a relevant consideration — whether trial judge erred in not finding that lack of planning was a mitigating factor — domestic violence offence — where no error shown CRIME — Appeals — Appeal against sentence — Re-sentence — calculation error for commencement date of sentence

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – sexual intercourse with a child under 10 years and aggravated indecent assault – victim three years old – no direct evidence of acts the subject of the offences – evidence of witness about applicant sending videos by phone recording the two acts – WhatsApp exchanges between applicant and witness relied on as admissions and tendency evidence – evidence of second witness shown video of indecent assault by applicant on her phone CRIME – appeals – appeal against conviction – extension of time in which to seek leave to appeal

Catchwords:

SENTENCING – parity – no question of principle

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Sole ground of proposed appeal manifest excess — Where the applicant was sentenced to five years and six months imprisonment for a number of drug related offences — Whether the sentencing judge wrongly focused on the applicant’s significant assets as opposed to the applicant’s subjective circumstances APPEAL — Leave to appeal — Principles governing

Catchwords:

CRIME – appeals – appeal against sentence – four counts of using carriage service to menace, harass or offend contrary to s 474.17(1) Criminal Code (Cth) – offending occurred while applicant an inmate at various prisons – offending involved use of phone accounts of other inmates to call various entities and describe fictitious abuse of young daughter and other girls under the age of ten – calls made for purpose of sexual gratification – offending latest manifestation in persistent and identical offending over number of years despite earlier imprisonment – whether sentencing judge erred in applying principle of totality – where approach of backdating sentence to make it partly concurrent with sentence applicant had been serving was open to sentencing judge - whether sentence manifestly excessive – where notional accumulation within sentencing judge’s discretion – no House v The King error demonstrated

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Applicant found guilty by jury of two counts of adult sexual assault – Applicant acquitted by jury of multiple counts of same offending – Where Crown case was that two conviction counts were supported by contemporaneous complaint material in the form of text messages – Where applicant contends the jury must have misused the evidence of text messages – Where appeal court should not attempt to parse jury findings in determining unreasonable verdict ground – Where text messages sent by complainant to applicant were powerful contemporaneous complaint suggestive of adult sexual assault CRIME – Appeals – Appeal against conviction – Where applicant convicted of multiple counts of sexual and physical violence – Summing-up of trial judge – Where trial judge gave partial Liberato direction – Where direction did not speak of complete rejection of evidence of applicant – Where primary fact in contention was issue of consent – Where applicant gave sworn evidence in his defence contradicting evidence of complainant on two counts – Where applicant also gave sworn evidence admitting two offences – Where Crown relied on evidence of applicant in that regard – Where defence counsel at trial explicitly satisfied with partial Liberato direction – Where Rule 4.15 engaged – Where no miscarriage of justice CRIME – Appeals – Appeal against conviction – Final address of Crown prosecutor – Summing-up of trial judge – Where final address of Crown prosecutor referred to asserted lies and unusual behaviour of applicant – Where vast majority of final address of Crown prosecutor did not feature consciousness of guilt reasoning – Where one submission of Crown prosecutor should, on analysis, be characterised as consciousness of guilt reasoning – Where applicant contends Edwards direction should have been given to jury –Where defence counsel at trial did not request Edwards direction – Where no miscarriage of justice CRIME – Appeals – Appeal against sentence – Manifest excess – Where applicant submitted that indicative sentences for non-sexual assault offences were manifestly excessive – Where jury verdicts regarding previously committed sexual assaults meant that applicant could not rely on prior good character –Where aggregate sentence imposed for four offences was arguably lenient – Where no manifest excess established

Catchwords:

CRIME – Appeals – Appeal against sentence – Ongoing drug dealing – Manifest excess – Where submitted that remarks of sentencing judge were not reflected in sentence imposed – Where unusual sentence structure imposed – Where special circumstances found causing dramatic departure from statutory ratio between non-parole period and head sentence – Leave to appeal granted and appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — whether tendency evidence was wrongly admitted — where evidence was of applicant’s consensual sexual relationship with a female under 16 years — where offence alleged involved no consent — where evidence showed sexual interest in females under 16 years — where evidence not wrongly admitted CRIME — Appeals — Appeal against conviction — Miscarriage of justice — whether crown prosecutors questioning appropriate — fairness obligation — where held questioning appropriate CRIME — Appeals — Appeal against conviction — Unreasonable verdict — alternative count — where verdict could be explained based on different consent requirements in counts charged — where verdict not unreasonable CRIME — Appeals — Appeal against sentence — whether finding made by sentencing judge consistent with jury verdict — De Simoni principle — where finding consistent

Catchwords:

CRIME — work health and safety — appeal against conviction for breaching duty owed by persons conducting a business or undertaking under s 19(2) of the Work Health and Safety Act 2011 (NSW) — appeal pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW) — consideration of extent to which challenges to findings of fact permitted CRIME — work health and safety — whether conduct of labour hire worker occurred as part of host’s business or undertaking for the purposes of s 19(2) of the Work Health and Safety Act — alleged error in finding that worker an employee or agent of hirer for the purposes of s 244 not material — conviction well supported by factual findings without the need to rely on s 244

Catchwords:

APPEAL – criminal appeal – application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from decision pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) to discharge whole of a jury following discharge of a single juror – where discharge of jury occurred following the close of evidence – where discharge of jury opposed by the accused in a murder trial – whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches CRIME – murder trial – where Crown applied to discharge the whole of the jury after close of the evidence – where accused opposed application for discharge – where jury nevertheless discharged - whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches

Catchwords:

CRIMINAL LAW – Appeals – appeal by applicant against aggregate sentence – trial judge’s misstatement of statutory threshold for large commercial quantity of methylamphetamine – trial judge overemphasised role of weight as factor in sentencing – appeal allowed – resentence applicant – lesser sentence warranted CRIMINAL LAW – Parity principle – issue of equality before the law – comparison of seriousness of criminality of applicant against co-offenders – like cases be treated alike – different cases be treated differently according to circumstances of the case – no error as to application of parity principle

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where Crown relied on evidence of [redacted] witness who had twice earlier been found by the Court of Criminal Appeal to be a witness who lacked credibility CRIME — appeals — appeal against conviction — unreasonable verdict — unreliable witnesses — whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Whether sentence manifestly excessive – Cause to take intoxicating substance to enable the commission of an indictable offence – Sexual intercourse without consent – Intentionally recording intimate images without consent – No specific error asserted – Where manifest excess was said to be reflected in the application of the discount to reflect the applicant’s pleas of guilty and sentences imposed in other cases of similar offending – No error in the application of the discount – Where it was expressly conceded that the objective and subjective circumstances in the cases relied upon for comparative purposes were distinguishable from the present case on various bases – Serious offending – Findings of sentencing judge unchallenged – Leave to appeal granted – Appeal dismissed

Catchwords:

STATUTORY INTERPRETATION – commencement and duration – transitional provisions – where accused found unfit to be tried for a number of criminal offences – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing EVIDENCE – admissions – criminal proceedings – improperly obtained – admission of evidence pursuant to s 138 of the Evidence Act 1995 (NSW) – where complainant recorded telephone call with accused without the accused’s consent, in contravention of s 7 of the Surveillance Devices Act – where phone call contained admissions made by the accused – where primary judge declined to exclude the recorded phone call pursuant to s 138 of the Evidence Act – whether primary judge erred in assessing the relevant considerations enumerated in s 138(3) – whether probative value was reduced by reason of the accused’s intellectual disability – whether importance of phone call in proceedings was reduced by the existence of other evidence containing admissions – whether primary judge erred in finding that the public interest in admitting the phone call outweighed the public interest in its exclusion EVIDENCE – tendency evidence – criminal proceedings – where accused found unfit to be tried for a number of criminal offences, including one of aggravated sexual assault – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where Crown sought to adduce tendency evidence given by a former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – where special hearing conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed a number of offences, including one of aggravated sexual assault – where Crown sought to adduce tendency evidence given by former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the relevant “hearing” began on the finding of unfitness to be tried, or at the beginning of the special hearing – whether the amendments to the Evidence Act applied to the admission of tendency evidence SENTENCING – appeal against sentence – severity – sentence manifestly excessive – appeal against limiting term imposed pursuant to s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether sentencing judge gave adequate weight to the appellant’s intellectual disability in assessing the need for general deterrence – whether sentencing judge gave effect to recognised principles that people with intellectual disabilities may be inappropriate vehicles through whom to send messages of deterrence – whether limiting term was plainly wrong, unreasonably or unjust

Catchwords:

CRIME – Appeals – Appeal against sentence – possession of tobacco products imported to defraud the revenue – asserted failure to consider parity – whether justifiable sense of grievance – asserted failure to take applicant’s antecedents into account – whether some other sentence warranted

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:

CRIMINAL LAW – Appeal – Evidence – Expert evidence – Where the applicant was convicted of multiple counts of dealing in identification information with the intention of facilitating the dishonest obtaining of a financial advantage by deception – Where Crown case relied on circumstantial evidence including evidence of telephone intercepts – Where interpreter gave evidence of having translated conversations from Hindi into English – One of the parties to those conversations was described as a “male voice” – Crown case was that this was the voice of the applicant – Where interpreter gave evidence without objection that the “male voice” in each conversation was the same voice – Whether that evidence was admissible – Whether the jury were in the same position as interpreter to reach that conclusion – Whether the Crown was under an obligation to play each of the conversations in Hindi to the jury absent any request by trial counsel for the applicant to do so – Consideration of principles governing the Crown’s decision to call witnesses in a criminal trial – Where the playing of the entirety of the calls would have been a waste of valuable Court time – Where applicant required an extension of time in which to bring the application for leave to appeal against his convictions – No merit in either ground of appeal – Extension of time granted – Appeal dismissed

Catchwords:

CRIME – Terrorism offences – Aid, abet, counsel or procure the commission of terrorist act - CRIME – Appeals – Appeal against sentence – Whether error in sentencing applicant on basis that prospects of rehabilitation were poor – Assessed prospects of rehabilitation on basis of evidence at the time CRIME – Appeals – Appeal against sentence – Whether strong element of general or personal deterrence required SENTENCING – Relevant factors on sentence – Deterrence – General deterrence SENTENCING – Relevant factors on sentence – Deterrence – Personal deterrence CRIME – Appeals – Appeal against sentence – Whether error in giving primacy to deterrence, incapacitation and retribution over rehabilitation and youth – Applicant 18 years of age – Terrorism Offence SENTENCING – Relevant factors on sentencing – Relevance of Youth – Terrorism Offences CRIME – Appeals – Appeal against sentence –Whether error in failing to take into account existence of continuing detention scheme for high risk terrorist offenders HIGH RISK OFFENDERS – Continuing detention orders –High risk terrorist offenders – Relevance to sentencing CRIME – Appeals – Appeal against sentence – Manifest excess CRIME – Appeals – Appeal against sentence – Section 19AG Crimes Act (1914) (Cth) – Whether error in failing to determine an appropriate non-parole period – Whether error in fixing the non-parole period – Whether section 19AG Crimes Act (1914) (Cth) invalid – Statutory minimum non-parole period CONSTITUTIONAL LAW – Commonwealth Constitution – Legislative Power – Validity of section 19AG Crimes Act (1914) (Cth) – Whether incompatible with the exercise of judicial power – Statutory minimum non-parole period

Catchwords:

CRIME – Terrorism offences – Possessing things connected with a terrorist act – Possessing revolver – Reckless as to connection of the thing to the preparation for a terrorist act CRIME – Firearms offences – Supply loaded revolver to person who is not authorised to possess the pistol by a licence or permit. CRIME – Appeals – Appeal against sentence – Whether miscarriage of justice by admission of Exhibit in the absence of an annexure to that statement CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding sympathetic towards Islamic State and motivated to commit the offences because of such sympathy CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in finding that disclosed to applicant that revolver was to be used for the purposes of a terrorist attack CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in sentencing applicant on basis that he knew revolver was to be used to shoot a person CRIME – Appeals – Appeal against sentence – Multiple offences - Degree of accumulation between offences CRIME – Appeals – Appeal against sentence – Manifest excess

Catchwords:

CRIME – appeals – appeal against conviction – recklessly causing grievous bodily harm – trial by judge alone – skull fracture – circumstantial case – unreasonable verdict – expert evidence – whether injuries caused in the essential period – whether injury amounted to grievous bodily harm – where trial judge had no relevant advantage – quintessential jury question – relevance of age of victim – relevance of future risk of harm – appeal allowed – conviction quashed – verdict of acquittal WORDS AND PHRASES – “grievous bodily harm”

Catchwords:

CRIMINAL LAW – sentence appeal – multiple grounds of appeal raised – little merit – extremely serious offences on young child – use of knife for mutual cutting – discount for plea of guilty where no evidence led to explain delay in entry of plea – aggravating circumstances – whether judge erred in taking into account impact on child victim – totality principle – offending over four year period – significant evidence of grooming and uncharged offences – whether judge erred in not finding offences to be spontaneous or opportunistic – relevance of course of offending – no error CRIMINAL LAW – sentencing – standard non-parole period – where legislation amended on multiple occasions – whether Judge led into error as to applicable standard non-parole period – matter raised in course of appeal hearing – whether leave should be granted to rely on ground – error established – leave granted – no lesser sentence warranted – appeal dismissed

Catchwords:

SENTENCING – murder charge – plea of guilty to manslaughter at Local Court case conference and at trial – plea not accepted by Crown – manslaughter verdict – Crimes (Sentencing Procedure) Act s 25E –– mandatory discount – error conceded SENTENCING – manslaughter – objective seriousness – where sentencing judge found “well above mid-range” and declined to find species of manslaughter – duty of sentencing judge to find facts consistent with jury verdict – extreme provocation and excessive self-defence – no error – sentence not otherwise manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against convictions – sexual offences and assault offences committed against wife – arranged marriage – failure to call two character witnesses at the applicant’s trial due to the failure by the applicant’s former solicitors to notify trial counsel of their availability – whether miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 (NSW) established – approach to miscarriage considered – whether no substantial miscarriage – where evidence not called, difficulty for the court’s ability to assess guilt being established beyond reasonable doubt – appeal allowed – convictions quashed – new trial ordered

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – trial – judge alone – murder – domestic violence – mental illness – partial defences – whether the accused had a “substantial impairment” – opinion evidence – expert opinion – whether the trial judge unreasonably rejected opinion evidence – Crimes Act 1900 (NSW), s 23A CRIMINAL PROCEDURE – trial – judge alone – appeal against conviction – new trial – miscarriage of justice – murder – domestic violence – whether a warning should have been given that no adverse inference can be drawn from the failure of an accused to give evidence – where the warning was not mandatory – where the onus lay on the accused to establish a partial defence – whether the warning can be implied from a right to silence direction –Criminal Procedure Act 1986 (NSW), s 133(3) – Criminal Appeal Act 1912 (NSW), s 6(1) – Crimes Act 1900 (NSW), s 23A

Catchwords:

CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether applicant had actual knowledge of disability – Sentencing judge’s finding of actual knowledge, largely based on own observations of victim, was open CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether victim’s age an aggravating factor – Relative age of victim to offender relevant to objective seriousness where it increases victim’s vulnerability as exploited by offender CRIME – Appeals – Appeal against sentence – Where applicant guilty of aggravated sexual assault of victim with cognitive impairment – Whether direction by applicant to victim not to tell anyone what happened constituted a threat and therefore an aggravating factor – No requirement that a threat must contain express consequences for non-compliance – Nature of statement informed by context in which it was said – In context of criminal conduct, statement carried implication of adverse consequences for non-compliance – Relevant direction held to be a threat and therefore an aggravating factor CRIME – Appeals – Appeal against sentence – Where no express finding made as to prospects of rehabilitation – Prospects of rehabilitation and risk of re-offending are inter-related factors – No requirement that each is referred to in express terms if reasons as a whole show they have been considered

Catchwords:

Interlocutory Appeal – appeal by Director of Public Prosecutions against exclusion of parts of ERISP with accused and entirety of a walk through interview – respondent charged with manslaughter – Crown alleges he fought with the deceased and forced him onto a busy road and was hit by a car – respondent intoxicated at time of fight – interviewed the following day – during interview respondent stated he could not recall parts of fight including how deceased came to be on the road – trial judge accepted respondent was genuinely cooperating in interview – trial judge accepted Crown’s expert that it was likely that lack of memory was due to cognitive impairment at time of fight from alcohol consumption – trial judge found that when respondent indicated a lack of memory his answers “have no greater status than … hypothesis” – exclusion of parts of ERISP and walkthrough “substantially weakened” Crown case – forced Crown to prove dangerousness and causation by inference rather than direct proof – whether trial judge mistook of facts – part of the trial judge’s reasons for finding cognitive impairment relied on evidence of Crown expert relating to different topic – finding still open or reasonably open – whether in finding unfairness trial judge failed to consider extent to which jury could determine reliability of admissions – once trial judge held that answers no more than hypothesis then did not matter that jury could make its own assessment – whether trial judge erred in excluding entirety of walkthrough interview – exclusion of entirety of walkthrough inconsistent with findings in relation to ERISP – respondent’s memory only partly affected – appeal allowed in part – consideration of exclusion of walkthrough remitted to trial judge – appeal otherwise dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – application of sentencing discount for the utilitarian value of a guilty plea – where first day of trial aborted due to non-attendance of the offender – whether 10% discount available upon guilty plea within 14 days of the new first day of the trial – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice – unreasonable verdicts – new evidence – no error or miscarriage of justice shown – verdict not unreasonable – appeal against sentence – special circumstances – whether error in consideration of appellant’s subjective circumstances – manifest excess – no error shown – sentence not excessive

Catchwords:

CRIME — Appeals — Appeal against conviction — Incompetence of counsel – Miscarriage of justice – Unreasonable verdict – Whether evidence established that the offences occurred within the date range alleged by the Crown – Whether jury must have entertained a doubt where evidence was elicited only after witness was shown his prior statement following a grant of leave under s 38 – Whether evidence on particular grounds was incapable of being reconciled – Whether evidence was insufficiently particular

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 — Appeals — Appeal against sentence — whether trial judge erred in finding of mid-range objective seriousness — where factors argued to show error did not assist given circumstances of offending — appeal dismissed CRIME — Appeals — Appeal against sentence — Manifest excess — where sentence not unreasonable or plainly unjust in light of maximum penalty and standard non-parole period — appeal dismissed

Catchwords:

CRIMINAL APPEAL – review of procedural decisions of Registrar – no question of principle

Catchwords:

CRIME — Bail — Appeal bail — Jurisdiction of the appeal court — Applications filed out of time — No substantive proceedings on foot in the appeal court — No jurisdiction to hear and determine release application

Catchwords:

CRIME – Appeals – Appeal against convictions – sexual assault – multiple complainants – tendency evidence – whether error by judge in not severing counts of indictment – whether judge failed to identify the fact in issue – whether tendency evidence lead to establish identity of offender – cross-admissibility of complainant’s evidence – whether evidence was capable of proving appellant’s sexual interest had significant probative value – whether common features of sexual offending – whether location of offending relevant to establish tendency – whether probative value outweighed danger of bolstering identification evidence – whether danger of impermissible co-incidence reasoning – whether directions could reduce prejudicial effect – whether error in judge’s directions to jury – erroneous use of metaphor – whether final direction overcame erroneous metaphor – failure by counsel to seek re-direction – rule 4 – whether potential injustice – photo board identification – whether photo array suggested person in police custody – whether probative value of evidence was outweighed by danger of prejudice – whether error in not discharging jury – whether judge erred in not properly considering issues relevant to the application to discharge pursuant to s 53C(1)(a) Jury Act – whether error in moving to a majority verdict – whether error in failing to give Black direction

Catchwords:

CRIMINAL LAW – appeal against conviction – jury verdict of guilty to an alternative count of recklessly causing grievous bodily harm – Crown concession of error by trial judge in refusing to admit a video into evidence – whether proviso should be applied – whether oral testimony contrary to the Crown case was obviously false – unnecessary to consider whether case was extreme – powerful prosecution case – credibility of witnesses was crucial – witness’ credibility undermined by evidence of police officer – witness credibility supported by the video – appellant denied fair chance of acquittal – new trial ordered

Catchwords:

CRIME – Appeals – Appeal against sentence – Agreed Facts – where applicant pleaded guilty to two fraud offences and one attempted fraud offence – where applicant engaged in joint criminal enterprise to defraud bank with co-offender – where each offender had a separate set of agreed facts on sentence – where co-offender’s agreed facts suggested that applicant played a larger role than the applicant’s agreed facts – where sentencing judge extracted section of co-offender’s agreed facts which outlined their respective roles in judgment relating to the applicant – where sentencing judge found that applicant was less culpable – where same finding on objective seriousness made for both offenders – whether sentencing judge erred in sentencing applicant on the basis of material in co-offender’s agreed facts – Court of Criminal Appeal noted that agreed facts for sentence should not be “unnecessarily complex” CRIME – Appeals – Appeal against sentence – Committing offence in area of professional qualifications as aggravating factor – where applicant has university level accounting qualifications and worked as a financial controller – where applicant’s role included transferring monies and retaining records concerning applications for credit by false identities – where detailed spreadsheets used to facilitate scheme found on applicant’s computer – whether sentencing judge erred in finding applicant used his “skills as an accountant” to commit the offences CRIME – Appeals – Appeal against sentence – Third party hardship as subjective circumstance – where applicant has wife and two children, including a son with autism spectrum disorder – where applicant relied on evidence suggesting his imprisonment would cause adverse financial impacts to his family – where sentencing judge referred to financial hardship to family and “other hardship” – where sentencing judge found that Edwards hardship was not established – where applicant did not rely upon impact of family hardship on himself at sentencing hearing – whether sentencing judge erred in failing to properly consider hardship to family – whether sentencing judge erred in failing to consider impact of family hardship on the applicant

Catchwords:

CRIME – Appeals – Appeal against sentence – Federal child abuse offence – statutory mandatory minimum sentence prescribed – reduction of mandatory minimum pursuant to s 16AAC of the Crimes Act 1914 (Cth) – concession by the Crown of error by the sentencing judge by not reducing the sentence below the specified minimum – re-sentence – consideration of non-parole period

Catchwords:

CRIME — appeals — appeal against sentence – whether error in manner of taking into account prescribed standard non-parole period – whether error in findings concerning applicant’s mental health – consideration of borderline intellectual functioning as defined in DSM-5 – reliance upon DSM-labelled conditions – whether sentence miscarried due to the Crown submitting a sentence below two years may give rise to appellable error – consideration of Barbaro v The Queen – prosecutorial duty to the court in sentence proceedings

Catchwords:

CRIME – Appeals – Appeal against sentence – Double Punishment – where applicant pleaded guilty to charges of aggravated detain for advantage and contravene apprehended domestic violence order (“ADVO”) – where aggravating feature of detain offence was occasioning of actual bodily harm – where both offences occurred in course of same incident – where violent conduct formed basis for both offences – where sentencing judge imposed wholly consecutive sentences of imprisonment – whether sentencing judge erred by doubly punishing the applicant for the contravene ADVO – whether error manifest in imposing entirely consecutive sentence for the contravene ADVO offence CRIME – Appeals – Appeal against sentence – Manifest Excess – where applicant sentenced to term of imprisonment for each offence – where applicant submitted that detention was “fleeting” and injuries were “relatively minor” – where applicant relied on sentencing statistics and comparable cases – whether sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – whether trial judge erred in failing to find that there was no case to answer in relation to a count – whether trial miscarried having regard to that count being left to the jury – where that count entailed the appellant causing the complainant to take three drugs simultaneously by way of a drink – whether it was open to the jury to find that the appellant provided the complainant with the drug methylamphetamine – whether jury engaged in improper speculation or conjecture rather than logical inference CRIME – appeals – appeal against conviction – verdict of acquittal substituted – where verdict of acquittal substituted for verdict in respect of one count but not others – where verdict on that count was unreasonable CRIME – appeals – appeal against conviction – new trial – whether a new trial should be ordered on the remaining counts in light of a wrongful conviction on two counts – where the remaining counts involved a different complainant – where the remaining counts were committed at a different time – where acquittal entered on one count indicates jury was able to differentiate between charges involving different complainants CRIMINAL PROCEDURE – trial – jury – conduct of Crown prosecutor – closing address of Crown prosecutor – whether trial miscarried because of the Crown prosecutor’s closing address – where experienced defence counsel made no objection at trial – where it was not suggested that the references were without foundation

Catchwords:

SENTENCING — appeal against sentence — subjective considerations on sentence — special circumstances — failure to give effect to finding of special circumstances — error requiring resentencing SENTENCING — appeal against sentence —informers — sentence reduced because of assistance provided to law enforcement authorities SENTENCING — appeal against sentence — co‑offenders — disparity between sentences

Catchwords:

CRIME – sentence – appeal against sentence – failure to take pre-sentence custody into account in imposing sentence – intensive correction order imposed – error conceded by Crown – court required to re-sentence – question of utility of application – “Parker warning” – requirement to commence any intensive correction order from the date of imposition – impossibility of backdating sentence – question of burden of any further, shorter, intensive correction order on the applicant’s liberty – whether such sentence would constitute a harsher penalty in the circumstances

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Whether verdict supported by evidence – Miscarriage of justice – Whether miscarriage of justice occasioned as a result of the appellant being tried jointly with the co-accused

Catchwords:

CRIMINAL LAW – sentencing – serious offences of domestic violence – relevance of psychiatric condition – personality disorder – whether subject to “De La Rosa principles” – where primary Judge decided “as a matter of law” principles not applicable – error established – where Judge determined lack of previous convictions “assumed less significance” due to nature of offences and recent history of domestic violence – error established – applicant resentenced

Catchwords:

CRIME — appeals — appeal against sentence — break, enter and commit a serious indictable offence — assault occasioning actual bodily harm — aggravated by being in company — whether sentencing judge erred in finding of fact as to provocation — whether sentencing judge erred in qualifying finding about remorse due to applicant’s refusal to identify co-offenders — whether sentencing judge erred by double counting factors of aggravation — whether sentencing judge’s interventions during sentence hearing denied applicant procedural fairness

Catchwords:

CRIME — Appeals — Appeal against conviction — Miscarriage of justice — applicant seeking to withdraw guilty pleas accepted by a magistrate at committal hearing — applicant says that he never gave instructions to enter pleas of guilty — charges never read to applicant either in Local Court or when sentenced in District Court

Catchwords:

CRIME – appeal against sentence – sentence after trial – sexual intercourse with person under 10 years – multiple counts – aggravated indecent assault – significant delay in bringing application for leave to appeal – delay unexplained – aggregate sentence imposed – question of level of concurrence and accumulation in determining aggregate sentence – question of manifest excess

Catchwords:

CRIME - appeal - conviction - unreasonable verdict –inconsistent verdicts – multiple counts of sexual offences – single complainant – consent – knowledge – acquittals able to be explained without recourse to complainant’s credibility – ground rejected CRIME – appeal – conviction – jury note – apparent reversal of burden of proof in jury question – no specific correction by trial judge – no request for further direction in response to jury note – leave granted under r 4.15 – accused deprived of real chance of acquittal – miscarriage of justice – retrial ordered

Catchwords:

CRIME – appeals – appeal against conviction – historical child sexual offences – application for permanent stay refused – where indictment spanned five years – lack of particularity, delay, forensic disadvantage – standard of appellate review where stay refused and trial proceeds to conviction – House error and miscarriage under s 6(1) of Criminal Appeal Act – neither shown by applicant in this case CRIME – appeals – appeal against conviction – unreasonable verdict – complainant’s testimony said to lack adequate particularity – complaint evidence – pretext calls – verdicts not unreasonable – appeal dismissed

Catchwords:

CRIME — Appeal — Appeal against conviction — Whether the trial Judge was required to warn himself pursuant to ss 165(1)(a) and 165(1)(d) of the Evidence Act 1995 (NSW) — Whether the complainant might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings — No request by trial counsel that the trial Judge give himself the relevant warnings — No miscarriage of justice demonstrated — Unreasonable verdict — Whether it was open to the trial Judge to be satisfied beyond reasonable doubt of the elements of Count 2 — Appeal dismissed

Catchwords:

CRIME – Appeal against sentence – procedural fairness – limited prior criminal history – where written submissions referred to leniency – not raised on oral submissions by the parties or the Judge – whether procedural fairness denied as issue not opened up by the Judge – whether applicant had a legitimate expectation that written submissions would be accepted – discretionary matter for the Judge – whether Judge had made the finding that grounded the appeal – whether leniency extended because of limited prior criminal history

Catchwords:

CRIMINAL LAW – sentence appeal – two juvenile offenders DM and DS – each convicted of murder and aggravated take and drive motor vehicle without consent of owner while owner present in vehicle in aggravation – DM also convicted of robbery with wounding while armed with an offensive weapon – wounding with intent to cause grievous bodily harm – offences included on Form 1 – offences committed on the same night in Queanbeyan – murder involved robbery of service station and stabbing of attendant by one of the offenders – both offenders liable for constructive murder – DS culpable for foundational crime on the basis of extended joint criminal enterprise to commit robbery – each offender affected by dysfunctional background and mental health issues – moral culpability reduced – long sentences imposed – whether moral culpability of offender part of determination of objective seriousness of offence – rejected – sentencing judge erred in assessing objective seriousness of DS’s offences – sentencing judge addressed DS’s participation in DM’s offences as opposed to DS’s offences – sentencing judge erred in failing to give effect to finding of special circumstances – no error in consideration of DS’s youth – objective seriousness of DM’s offence of murder assessed as substantially above the mid–range – no error established – whether sentencing judge erred in consideration of DM’s youth – no error established – whether sentencing judge erred in describing murder as involving “gratuitous violence”, “cold blooded” – submission untenable – no error established – whether sentences imposed manifestly excessive – sentences well in excessive of the objective seriousness of each offence – parity – Bugmy considerations – leave to appeal granted – appeal allowed – applicants resentenced

Catchwords:

CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether “existing sentence” determined at the time the “new sentence” is being imposed or at the time the “new sentence” commences – Determined at time the “new sentence” is being imposed CRIME – Appeal and review – Stated case – Question of law – Construction of s 58 of Crimes (Sentencing Procedure) Act 1999 (NSW) – Whether s 58 constrains the length of the sentence that can be imposed or is limited to constraining the extent of accumulation of sentences – Section 58 effectively constrains the length of a new sentence that can be imposed

Catchwords:

CRIME – bail – detention application – application made by prosecution following conviction and before sentencing – s 22B Bail Act 2013 – whether conditions limiting Court’s power to make bail decision met – whether convicted person will be sentenced to full-time imprisonment – where condition involves a state of satisfaction as opposed to a fact – whether special or exceptional circumstances exist to grant bail STATUTORY INTERPRETATION – meaning of “will” – assessment of disposition of sentence in light of available sentencing alternatives – meaning of “special” or “exceptional” circumstances – where same words appear in different parts of statute – where reference to dictionary definitions is of limited assistance

Catchwords:

CRIME – bail – detention application – application following conviction and before sentencing – s 22B Bail Act 2013 – whether conditions limiting Court’s power to make bail decision met – whether convicted person will be sentenced to full-time imprisonment – where condition involves state of satisfaction as opposed to a fact – where deference given to view of trial judge as to likely disposition of sentence

Catchwords:

CRIME – appeal against conviction – applicant convicted of child sex offences – ground of appeal challenges aspects of summing up to jury – statements by trial Judge concerning evidence of children – whether statements made exceeded permissible comment in accordance with RGM v R [2012] NSWCCA 89 and McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 – held that cumulative effect of statements gave rise to miscarriage of justice – appeal allowed – convictions quashed – new trial ordered

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – where applicant convicted by jury of single count of sexual intercourse with a three year old girl – where complaint made in response to leading question of complainant’s parents – whether verdict of guilty open to jury – where video exhibits of complainant’s evidence available to Court of Criminal Appeal – where applicant relied on a number of identified inconsistencies in the evidence – consideration of reliability of complainant’s account CRIME – Appeals – Appeal against sentence – Manifest excess – where applicant sentenced to term of imprisonment – where maximum penalty for offence was life imprisonment – where finding of special circumstances made – whether sentence manifestly excessive – where applicant relied on comparable cases – where assessment of objective seriousness not challenged

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where direct evidence only available from conflicting accounts of complainant and accused – Where trial judge gave self Liberato direction and then rejected accused’s evidence – Finding that having regard to the whole of the evidence, accused’s account cannot be set aside as not a reasonably possible version of events, and thus a reasonable doubt as to his guilt is entertained – Held that trial judge enjoyed no relevant advantage over appellate court and thus ought to have entertained the same reasonable doubt – Conviction and sentence quashed and substituted with verdict of acquittal

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Whether loss of tooth amounts to grievous bodily harm CRIME – Appeals – Appeal against sentence – Error in indicative sentences

Catchwords:

CRIME — Crown appeals — whether excessive allowance for totality — reconciling principles of cumulation and concurrency with totality principle —where offenders sentenced to both State and Commonwealth offences — whether sentences manifestly inadequate — Crown appeal against [restricted] dismissed — Crown appeal against [restricted] allowed in limited respect — sentence which would have been imposed but for past and future assistance to authorities — [restricted] resentenced — cross-appeals against severity of sentences — both respondents/cross-applicants convicted of one count of blackmail contrary to s 249K(2) of the Crimes Act (NSW) and one count of laundering the proceeds of the commission of the blackmail offence contrary to ss 400.3(1) and 11.2A(1) of the Criminal Code (Cth) — [restricted] additionally convicted of one count of aid and abet fraud contrary to ss 135.1(3) and 11.2(1) of the Criminal Code (Cth) — separate sentences and non-parole periods for State and Commonwealth offences — application of s 19(3) of the Crimes Act (Cth) [restricted] sentenced to imprisonment for 10 years and 5 months with a non-parole period of 7 years and 2 months — [restricted] sentenced to imprisonment for 8 years with a non-parole period of 6 years — whether patent errors of sentencing principle required intervention in a resentencing exercise for both cross-applicants — error in dealing with [restricted] prior good character — Crown conceded disparity between [restricted] sentence and [restricted] sentence for blackmail — no lesser sentence warranted in law — appeals dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction — Where applicant convicted of murder — Where alternative verdict of manslaughter left to jury —Circumstantial case CRIME — Appeals — Appeal against conviction — Directions to jury regarding use of evidence of lies and post offence conduct — Inference of consciousness of guilt — No miscarriage as evidence was not intractably neutral as between murder and manslaughter — No miscarriage as not seeking the direction was objectively justifiable as a rational forensic decision CRIME — Appeals — Appeal against conviction — Miscarriage of justice — Directions to jury regarding reasonable hypotheses consistent with manslaughter — No miscarriage of justice as there was no need to explain further hypotheses CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Evidence supported the view that the applicant acted with intent to inflict at least really serious injury — Verdict of guilty supported on the whole of the evidence

Catchwords:

CRIME – appeals – appeal against sentence – aggregate sentence imposed with commencement back-dated – whether error in not back-dating commencement earlier still – totality – significance of two month period during which applicant was at liberty following earlier imprisonment – whether inadequate weight given to youth – appeal dismissed

Catchwords:

SENTENCING — Appeal against sentence — Co-offenders — Disparity between sentences — where co-offenders sentenced by different judges — where co-offenders found guilty of different offences — whether open to applicant to impugn findings in co-offenders sentencing judgment — application dismissed

Catchwords:

CRIME — Appeal and review — Appeal from District Court to Supreme Court — Applicant sentenced to a term of imprisonment for offences of importing a border controlled drug and trafficking in a substance, the substance being a border controlled drug — Whether sentence was manifestly excessive — Weight afforded to the Applicant’s subjective case — Leave to appeal granted — Appeal dismissed

Catchwords:

CRIME – Crown appeal against sentence – joint enterprise murder of minor by juveniles – alleged error in applying standard non-parole period – alleged failure to apply statutory aggravating features – alleged manifest inadequacy – statutory aggravating features not to be applied formulaically – no error disclosed – not manifestly inadequate in light of respective roles and subjective circumstances

Catchwords:

CRIME — sentencing — manslaughter — guilty plea — discount to be applied — whether utilitarian discount under s 25E(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available where offer to plead guilty to an offence made but initially refused by prosecutor — statutory construction — whether alternative less serious offence is a “different offence” to the subject of the proceedings — found — 25% discount applied under operation of s 25E(3)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

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:

CRIMINAL LAW – appeal against sentence – error conceded in respect of the failure to refer to and apply s16A(2AAA) of the Crimes Act 1914 (Cth) – resentence

Catchwords:

CRIME – appeals – appeal against sentence – s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) – parity principle – totality principle – applicant sentenced to 4 years imprisonment with non-parole period of 2 years, 6 months for single armed robbery offence – co-offender sentenced to aggregate sentence of 5 years, 3 months with a non-parole period of 3 years, 2 months for three offences – co-offender’s indicative sentence for shared armed robbery offence only 3 months more than applicant’s sentence – co-offender’s non-parole period extended by 12 months and total sentence extended by 13 months – whether applicant has a justifiable sense of grievance arising from disparity between his sentence and sentence imposed upon co-offender – both offenders had strong subjective cases – difference in sentence for the shared armed robbery offence sufficient to reflect differences in subjective case – Court must consider all the components of the sentence for all the offences that each offender is serving – total effect of the sentences on each offender not reflective of their respective criminality – justifiable sense of grievance arises – resentenced

Catchwords:

CRIME – appeals – appeal against sentence – domestic violence offences – dysfunctional background – reduced moral culpability – specific deterrence – general deterrence – rehabilitation – community protection – maximum penalties reserved for worst category offences – resentenced

Catchwords:

CRIME – appeals – appeal against sentence – by Crown against inadequacy – Court’s discretion to intervene – principles concerning Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – where error was established in the sentencing judge’s reasoning – where the circumstances of the case are highly fact-specific and offer little by way of precedential value – where the arguments advanced on appeal involve refinements to those advanced at first instance – where a resentencing exercise would amount to a mere correction of error SENTENCING – relevant factors on sentence – maximum penalty – calculation of maximum penalty for an offence of conspiring to cause a bribe to be offered to a foreign public official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – where amount of the maximum penalty expressed as a multiple of “benefit” derived from impugned conduct – construction of the word “benefit” in s 70.2(5)(b) of the Criminal Code – where foreign government contracts to provide services in relation to public infrastructure projects were procured – whether “benefit” should be interpreted to mean gross income (i.e. the total value of the contracts awarded) or the net income obtained from those contracts STATUTORY INTERPRETATION – immediate context – consistency of meaning – calculation of maximum penalty for an offence of conspiring to cause a bribe to be offered to a foreign public official, contrary to ss 11.5(1) and 70.2(1)(a)(iv) of the Criminal Code Act 1995 (Cth) – where the amount of the maximum penalty turns upon the construction of the word “benefit” in s 70.2(5)(b) of the Criminal Code – whether “benefit” in s 70.2(5)(b) should be given the same meaning as in s 70.2(1)(a)-(b), which creates the substantive offence – where statutory context requires or results in different meanings being ascribed to the same term in a statutory provision SENTENCING – relevant factors on sentence – deterrence – general deterrence – where corporate offender reported its own misconduct, and subsequently provided substantial assistance to law enforcement authorities – where sentencing judge allowed significant discounts for the offender’s past and future assistance to law enforcement authorities – where sentencing judge also had regard to the desirability of encouraging the self-reporting of corporate misconduct when considering the importance of general deterrence, and determining the starting point for the sentences to be imposed – where sentencing judge considered that the prevention of offending is better achieved by rewarding a self-reporting company than by imposing a substantial fine – whether such an approach amounted to a failure adequately to take general deterrence into account SENTENCING – Crown appeal against inadequacy of sentence – Court’s discretion to intervene – principles concerning Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – where error was established in the sentencing judge’s reasoning – where the circumstances of the case are highly fact-specific and offer little by way of precedential value – where the arguments advanced on appeal involve refinements to those advanced at first instance – where a resentencing exercise would amount to a mere correction of error

Catchwords:

CRIMINAL APPEAL – remittal from High Court – High Court set aside some but not all of appellant’s convictions – appellant given aggregate sentence – remittal to Court of Criminal Appeal to consider resentence or remittal to District Court – matter remitted to District Court – no question of principle

Catchwords:

CRIME – appeals – appeal against conviction – applicant charged with sexual offences upon 13 year old girl – absence of consent an element of two of the counts – oral and written jury direction identified five pathways Crown could establish knowledge of absence of consent – fifth pathway was lack of reasonable basis for belief that complainant was consenting – addition “not” erroneously included in fifth pathway in oral and written direction – error unnoticed during trial – whether error amounted to miscarriage of justice – where absence of reasonable grounds for honest belief removed from issues at trial – where error wholly to advantage of accused because it denied one pathway by which Crown could establish knowledge of absence of consent – no miscarriage of justice established CRIME – appeals – appeal against sentence – aggregate sentence imposed for five sexual offences – all offences committed upon same complainant, at same location, as a single episode – extremely high level of effective concurrency required – aggregate sentence did not reflect sufficient level of effective concurrency – Evans v R [2017] NSWCCA 281 applied – sentence quashed and applicant resentenced

Catchwords:

CRIME – appeals – appeal against conviction – sexual offences committed on six-year-old boy in neighbour’s house – defects in complainant’s identification (or recognition) evidence of perpetrator – certain recollections contradicted by other evidence – risk of suggestion and displacement – where witnesses changed evidence after communicating with each other – jury ought to have had a reasonable doubt as to whether the applicant was the perpetrator – appeal allowed – convictions quashed – acquittal

Catchwords:

CRIME – appeals – appeal against sentence – spree of dangerous driving giving rise to seven offences – where four children died, one injured seriously, two injured – whether ADHD causally linked to commission of offences – whether sentence manifestly excessive – no truly comparable case – indicative sentences on manslaughter counts too high – aggregate sentence too high – appeal allowed – re-sentence CRIME – appeals – appeal against sentence – totality principle – whether sentence “crushing” – approach where one criminal act but multiple victims CRIME – manslaughter – use of a motor vehicle – species of involuntary manslaughter in driving cases

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where applicant sentenced to a term of imprisonment for serious sexual offending – Application of Bugmy principles – Where there was evidence of the applicant’s disadvantaged background – No evidence of any causal link between that background and the applicant’s offending – No error in the sentencing judge failing to find that the applicant’s moral culpability was reduced – Clear that the sentencing judge took into account the applicant’s disadvantaged background as part of the instinctive synthesis – Whether sentence was “crushing” – Whether the sentencing judge failed to correctly apply principles of totality – Whether sentence was manifestly excessive – Weight to be given to the offender’s subjective case – Observations as to the limitations placed on the use of so-called “comparable” cases – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIMINAL LAW – sentence appeal – offences committed in custody – attacked fellow prisoner – carved ISIS slogan into forehead – wound with intent to kill – inflict grievous bodily harm with intent – committed acts in preparation to commit a terrorism offence – planned attack on corrective services officers – encouraged attacks by others – wrote threatening letter to Commissioner for Corrective Services – long sentences imposed – mostly accumulated – Crimes (Sentencing Procedure) Act s 56 – whether sentencing judge failed to consider entire length of time in custody – rejected – whether aggregate sentence for attack on inmate involved too little consideration of totality principle – whether manifestly excessive – ground upheld – whether accumulation between sentences excessive – rejected – applicant resentenced for attack on inmate – further offence in custody – attempted “exorcism” of inmate – assault – detain for advantage – aggregate sentence imposed – sentencing judge informed of incorrect maximum sentence – error found – whether sentencing judge erred in applying s 56 of Sentencing Act – whether at time applicant committed offence on 15 May 2017 he was “a convicted inmate of a correctional centre” – non-parole period expired but not released as refused bail – held not convicted inmate – error found – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – where sentencing judge fixed non-parole period to expire on date of sentence – where judge recommended that applicant be released on that day – whether sentencing judge proceeded on mistaken belief as to operation of parole provisions in Crimes Act 1914 (Cth) – whether judge believed effect of sentence imposed would be that applicant was released to parole on that day

Catchwords:

CRIME – SENTENCE – appeal against sentence imposed for reckless infliction of grievous bodily harm – whether the sentencing judge erred in finding risk of widespread COVID-19 infection in prison system diminished – whether error in failing to mitigate sentence due to COVID-19 – whether sentence manifestly excessive

Catchwords:

CRIME – sentence appeal – aggregate sentence of 24 years with non-parole period of 18 years for serious sexual assault and physical assaults – applicant brutalised partner over 11‑hour period – whether sentencing judge erred in assessing objective seriousness of sexual assault by reference to facts of other sexual assault committed shortly prior to and shortly after subject offences – facts of other offences relevant to vulnerability of victim and intention to commit further assaults – reliance on wrong maximum penalty and wrong standard non-parole period – error conceded – no lesser sentence warranted in law

Catchwords:

CRIME – Appeals – appeal against sentence – parity – specially aggravated take and detain in company with intent to commit a serious indictable offence occasioning actual bodily harm – reckless wounding – where co-offender received ICO and applicant received custodial sentence – youth, rehabilitation and relative role in favour of co-offender – extent of disparity not justified – appeal allowed – re-sentence

Catchwords:

CRIMINAL PROCEDURE — prosecution for non-compliance with statutory notice — ruling that notice invalid — classification of ruling as interlocutory or final — whether leave to appeal could be granted under s 5F Criminal Procedure Act 1986 (NSW) ENVIRONMENT — validity of notice purportedly issued under s 191 Protection of the Environment Operations Act 1997 (NSW) requiring addressee to furnish information — whether the notice sufficiently identified the material required to be produced and whether it showed that the addressor was entitled to require that production COURTS AND JUDGES — jurisdiction — whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summary prosecution prior to final hearing

Catchwords:

SENTENCING — appeal against sentence — subjective considerations on sentence — finding by sentencing judge of special circumstances — finding not reflected in total effective sentence — appeal allowed

Catchwords:

CRIMINAL LAW – Evidence – Tendency and coincidence evidence – Where Appellant charged with multiple counts of sexual offending – Where Crown served co-incidence notice – Where evidence admitted – Where direction by the Trial Judge failed to identify the relevant path of reasoning – Where the direction had the effect of reversing the reasoning process – Where the direction given resembled a direction as to tendency reasoning – Where evidence was admitted in the absence of the jury being given any direction as to how that evidence could be used in reasoning towards a conclusion that relevant aspects of the complainant’s evidence should be accepted CRIMINAL LAW – Juries – Where individual juror discharged – Where the trial judge rejected an application to discharge the entire jury – Where the jury’s verdicts were returned a short time after the discharge of the juror – Risk of substantial miscarriage of justice CRIMINAL LAW – Juries – Where individual juror discharged – Where appellant adduced evidence that the discharged juror had the appearance of a “man of black African ancestry” – Where the appellant was described as a “dark-skinned Aboriginal man” – Where it was submitted that the discharged juror would have been supportive of the appellant on the grounds of race – Where it was submitted that the there was a consequent risk of a substantial miscarriage of justice in not discharging the whole jury – Submission firmly rejected – Submission entirely overlooked the direction given by the trial judge to the jury to act impartially

Catchwords:

CRIME — appeal against sentence — by Crown against inadequacy – serious drug supply offences – error in assessment of objective seriousness — manifestly inadequate sentence — appeal upheld — residual discretion to resentence the offender exercised to maintain adequate standards of punishment — resentencing to reflect objective gravity as well as strong subjective case

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – whether the absence of new evidence led to a miscarriage of justice – whether Crown has an obligation to call all expert witnesses available CRIME – appeals – appeal against conviction – whether the decision for a joint trial and the multiplicity of charges resulted in a miscarriage of justice – whether the trial judge erred in failing to provide a divided summing up, divided jury deliberations and divided verdict CRIME – appeals – appeal against conviction – application for discharge of jury – alleged juror bullying – whether the trial judge erred in refusing to discharge the jury CRIME – appeals – appeal against conviction – admissibility of tendency evidence CRIME – appeals – appeal against conviction – unreasonable verdict – whether the jury must have been left with a reasonable doubt – advantage enjoyed by the jury – whether the available evidence was capable of meeting the submissions – reliability of complainant CRIME – appeals – appeal against sentence – manifest excess – gravity of offending – where the facts lay on the spectrum of least serious instances of offence to worst category – range of possible sentences that could be imposed CRIME – appeals – appeal against sentence – evidence of good character – whether the sentencing judge erred in not giving weight to prior good character – good character taken into account but given no weight CRIME – appeals – appeal against sentence – whether error by the sentencing judge – consideration of non-exculpatory duress – treatment of prospects of rehabilitation – consideration of applicant’s mental health – treatment of victim impact statements

Catchwords:

CRIME – appeals – interlocutory appeal – permanent stay of criminal proceedings – sexual offences – sexual act with or towards a child – masturbating while looking at child – child not aware of act – meaning of “with or towards” – meaning of “towards” – statutory interpretation – legislative history – presumption that legislature intends words to take the meaning given to them by courts

Catchwords:

SENTENCING — appeal against sentence — manslaughter on basis of excessive self-defence — assessment of the objective seriousness of the offending — necessity to identify the circumstances as the offender perceived them at the time of the criminal conduct — appeal allowed

Catchwords:

CRIME – appeals – persistent sexual abuse of a child – nature of the offence – requirement that the unlawful sexual relationship be maintained – whether sentencing judge erred in sentencing the offender on the most favourable basis – effect of legislative reforms – significant questions of criminal culpability shifted from jury to judge – difficult fact-finding exercise on sentence – no unanimous jury finding on the underlying acts said to make up the relationship – sentencing judge bound to make own factual findings on uncertain evidence – error established – matter to be remitted to the District Court

Catchwords:

CRIMINAL PROCEDURE – trial – directions to jury – allegation that accused had sexual interest in complainant and tendency to act on it – jury directed to consider evidence of uncharged and charged acts collectively – whether judge should have directed jury that each act must be proved beyond reasonable doubt before use as tendency evidence – Criminal Procedure Act 1986 (NSW), s 161A EVIDENCE – record of interview with complainant adduced as evidence-in-chief – admissibility to support complainant’s credibility and as direct evidence of assault EVIDENCE – credibility evidence – evidence re-establishing credibility – complaints made 10 years after alleged offences – no application for leave to adduce evidence – no objection to evidence – whether admissible to support complainant’s credibility – Evidence Act 1995 (NSW), ss 66, 108(3) EVIDENCE – tendency evidence – single complainant sexual offences – evidence of uncharged acts – evidence of accused having a sexual interest in complainant and tendency to act upon it – cross-admissibility of charged acts as tendency evidence

Catchwords:

CRIMINAL LAW – appeal against sentence – whether sentencing judge took into account an irrelevant factor – view expressed during proceedings on sentence as to availability of intensive correction order – exchange did not form part of reasons CRIMINAL LAW – appeal against sentence – reliance on applicant being on conditional liberty at time of offending as aggravating factor – whether revocation of earlier parole order with effect from date before offending conduct altered offender’s status in the community before revocation order was made – construction of Crimes (Sentencing Procedure) Act 1999 (NSW), s 171(4) CRIMINAL LAW – appeal against sentence –obligation to consider an intensive correction order – intensive correction order not pressed for by Counsel before sentencing judge

Catchwords:

CRIMINAL APPEALS – fresh evidence on sentence appeal – when admissible – evidence that applicant involved in violence incidents in gaol – evidence not brought to the attention of the sentencing Judge – applicant a schizophrenic – where applicant refused to authorise his lawyers to access Justice Health records – evidence that violent incidents typical of victimisation of schizophrenic inmates – where sentencing Judge found experience in custody not more onerous by reason of mental illness CRIMINAL LAW – sentence appeal – re-sentencing – serious stalking and strangling offence – chilling facts – relevant considerations – whether less severe sentence warranted

Catchwords:

CRIME – appeals – appeal against sentence – two offences of doing an act intending to pervert the course of justice – forging letters for use in bail application – sentencing judge rejected applicant’s evidence in psychological report – no indication to applicant that issue was to be taken – denial of procedural fairness – error in assessment of objective seriousness – “typical” case not necessarily a mid-range case – cumulation not warranted – resentence

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Crown appeal asserting manifest inadequacy of sentence – Multiple instances of sexual and related offending committed over a lengthy period of time on eight separate victims – Consistently predatory behaviour on the part of the respondent – Some of the offending planned – Serious breach of a position of trust towards the victims – Aggregate sentence of imprisonment for 10 years imposed with a non-parole period of 6 years and 6 months – Where Crown relied upon latent error – Where errors were identified in the reasons of the sentencing judge but not relied upon by the Crown – Factual errors and omissions – Inadequate reasons – Failure to properly assess the objective seriousness of the offending – Displacement between findings as to objective seriousness and indicative sentences – Brevity of the individual instances of offending of limited relevance – Necessity to apply the correct approach when sentencing for an offence to which a Form 1 attaches – Apparent error in not treating the fact that one episode of offending occurred in the victim’s home as an aggravating circumstance – Lack of clarity as to what aggravating circumstances were in fact taken into account – Confusion between matters which are relevant to the assessment of an offender’s subjective case and those which might justify a finding of special circumstances – Where the sentence imposed failed to recognise the fundamental purposes of sentencing – Necessity for the Court to intervene in order to maintain public confidence in the criminal justice system – Crown appeal allowed – Sentence quashed and the respondent re-sentenced

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:

CRIMINAL LAW – appeal – appeal against conviction and sentence – aggravated indecent assault and sexual touching of a child between the age of 10 and 16 years – conviction ground asserted that a miscarriage of justice arose as trial Judge did not additionally remind and identify for the jury inconsistencies in the complainant’s evidence following the replay of JIRT interview during jury deliberations - no such application made at trial by defence counsel – consideration whether Court of Criminal Appeal should view pre-recorded evidence for the purpose of determining ground of appeal – no forensic purpose established for Court to view JIRT interview – leave to rely on ground refused – sentence ground asserted that aggregate sentence was manifestly excessive by reason of allegedly excessive indicative sentences – significance of “problematic” standard non-parole period for s.61M(2) Crimes Act 1900 offences – absence of standard non-parole period for s.66DB(a) Crimes Act 1900 offence – aspects of indicative sentences resulted in manifestly excessive aggregate sentence – Applicant resentenced

Catchwords:

BAIL – release application – bail refused by Court of Criminal Appeal – fresh application under s 74(3) as not legally represented on previous application – conviction and sentence appeal listed on 15 July 2022 – no special or exceptional circumstances – s 22 Bail Act not satisfied – application dismissed.

Catchwords:

COSTS – questions of law submitted by a prosecutor pursuant to s 5AE – prosecutor sought to “appeal” trial judge’s decision – costs order made – no question of principle

Catchwords:

CRIME – appeals – appeals against sentence – applicant convicted of three offences pertaining to violent attempted sexual assault of victim in her home late at night – applicant intoxicated by alcohol – objective seriousness – no error in consideration of relevant serious indictable offence on count 1 – opportunistic but not spontaneous – remorse – s 21A(3)(i) of Sentencing Act – conflated with inability to explain offending, rehabilitation and risk of re-offending – no separate finding made despite unchallenged evidence – error established – applicant remorseful – appeal allowed – re-sentence CRIME – property offences – aggravated enter dwelling with intent to commit serious indictable offence and break out – s 109(2) of Crimes Act – elements – whether count 2 correctly said to be a manifestation of the intent expressed in the s 109(2) offence – no error made out

Catchwords:

BAIL – release application – breaches of ESO – s 17 bail risks – unacceptable risks – bail refused

Catchwords:

CRIMINAL APPEAL – sentence appeal – extension of time – parity – where offenders sentenced for the same offences – where co-offenders sentences for additional offences – different roles and subjective cases – where the same sentence imposed on each offender – whether lack of disparity gives rise to justifiable sense of grievance – equal justice

Catchwords:

CRIMINAL LAW – sentence – prosecution appeal against inadequacy – sexual offending against two children – whether judge failed to apply standard non-parole period – use of word “depart” or “departure” from standard non-parole period – whether indicative of error – aggregate sentence – where indicative sentences significantly below standard non-parole period – whether indicative of error CIRMINAL LAW – sentencing – totality and proportionality – whether Judge erred in application of totality principle – whether sentence reflected the criminality against separate victims and in separate time frames – whether sentence manifestly inadequate as a result – (by majority) aggregate sentence increased – totality principle – notional accumulation within aggregate sentence

Catchwords:

CRIME — Appeals — Appeal against sentence — whether disparity between sentence imposed on applicant compared to co-offender — where open to sentencing judge to assess relative culpability as similar — where open to sentencing judge to impose same pre-discount sentence on both offenders — leave to appeal granted — ground not made out CRIME — Appeals — Appeal against sentence — whether sentencing judge could make finding on time of death based on evidence — where evidence existed — where ground devoid of merit and unduly technical — leave to appeal not granted

Catchwords:

CRIMINAL LAW – conviction appeal – applicant convicted of one charge of sexual intercourse with the complainant without her consent – applicant met victim following contact on social media – applicant drove her to various locations and then to carport at his apartment block – applicant found to have raped her in car parked in carport – applicant and victim exchanged text messages in the following days – victim then spoke to her ex-boyfriend in Vietnam and approached police – whether verdict was unreasonable and cannot be supported having regard to the evidence – victim told jury that she sent messages to find out whether the person who raped her had any interest in her other than sex – any doubt about victim’s credibility or reliability arising from messages was a doubt that the jury’s advantage in seeing and hearing her evidence was capable of resolving – observations of trial judge in absence of jury about strength of Crown case – irrelevant to ground of appeal – whether absence of evidence from ex-boyfriend meant verdict unreasonable – ground rejected – leave to appeal granted but appeal dismissed

Catchwords:

CRIME — appeals — application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against orders dismissing the applications for permanent stay or for separate trial — ruling on evidence is not an interlocutory order or judgment amenable to appeal under s 5F(3) of Criminal Appeal Act — the underlying basis for the application is a preliminary ruling on evidence — leave to appeal refused

Catchwords:

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdict — logical and rational basis for distinction drawn by jury

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant found guilty on one count, not guilty on five counts and jury unable to return verdict on one count — appeal dismissed

Catchwords:

CRIME – Crown appeal against sentence – manifest inadequacy – sentence was manifestly inadequate – insufficient accumulation for separate offence of assault over unrelated drug offences – no issue of principle requires intervention – “residual” discretion to intervene refused.

Catchwords:

CRIME – appeals – appeal against sentence – principle of parity – where applicant and co-offender pleaded guilty to different offences arising from identical facts – where different offences reflected different levels of moral and criminal culpability CRIME – appeals – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending SENTENCING – appeal against sentence – co-offenders – disparity between sentences – applicant shot victim in leg after co-offender lured him into position – applicant and co-offender pleaded guilty to different offences arising from identical facts – where maximum penalty for applicant’s offence is 25 years’ imprisonment compared to 10 years for co-offender’s offence – where applicant’s moral and criminal culpability significantly higher than that of co-offender – where applicant obtained lesser discount than co-offender for guilty plea – whether there was unjustifiable disparity between applicant and co-offender’s sentences SENTENCING – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where applicant and co-offender pleaded guilty to offences in the same terms – where a comparison is drawn between an indicative sentence, noted pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a sentence imposed on a co-offender for a single offence – the use of indicative sentences as a guide to the application of the parity principle – where the disparity in sentences reflected different levels of moral and criminal culpability SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender assisted applicant in the manufacture of methylamphetamine – where applicant recruited and paid co-offender to assist in the criminal enterprise – where co-offender had no prior knowledge or expertise in the manufacturing process – where applicant and co-offender pleaded guilty to offences in the same terms – the use of indicative sentences as a guide to the application of the parity principle

Catchwords:

CRIME – appeals – appeal against sentence – Crown appeal on sole ground of manifest inadequacy – eight serious sexual offences committed on five victims aged between 15 and 20 years over a period of one year – 12 similar offences on five Form 1s – pattern of offending where victims approached offender’s piercing business as customers – relationship of trust or victims in vulnerable position – offender with chronic drug abuse and mental health problems – application of principle of totality – appeal allowed – aggregate sentence and non-parole period increased – special circumstances

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence – supply prohibited drug – possess unauthorised prohibited firearm – possess more than three unregistered firearms – whether sentencing judge erred in sentencing the applicant twice in relation to the same offence – whether sentencing judge erred by failing to take into account the applicant’s mental health status – whether sentencing judge erred in assessing objective seriousness – whether sentence was manifestly excessive – error conceded – appeal dismissed

Catchwords:

CRIME — Drug offences — Manufacture prohibited drug Supply prohibited drug — Appeal against sentence — where sentencing judge erred in concluding the applicant’s previous conviction amounted to an aggravating factor and taking that aggravating factor into account – where sentencing judge erred in failing to give sufficient reasons for treatment of the prior conviction as an aggravating factor

Catchwords:

CRIMINAL LAW – prosecution appeal – asserted inadequacy of sentence – totality – delay in sentencing – community corrections order – where respondent served earlier gaol sentences for similar offending against children – offences committed at around the same time – rehabilitation – lengthy period of non-offending – whether sentence of imprisonment only alternative – where previous sentence fully served – where additional punishment would have been appropriate had offences been dealt with at the same time – not necessary to “reverse engineer” earlier sentence – correct approach to totality – sentence not inadequate

Catchwords:

SENTENCING – appeal against sentence – manifest excess – difficult sentencing exercise – sexual offences committed on child when offender was also a child – Bugmy background – delay of 16-17 years between offending and charges laid – offender lost opportunity both to be dealt with as a child and to be dealt with prior to amendments to sentencing regime in 2018 – threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 – objective seriousness of offending required custodial sentence – sentence did not reflect delay, age of applicant at time of offences and overwhelming subjective case – leave to appeal granted – appeal allowed

Catchwords:

SENTENCING — Crown appeal against inadequacy of sentence — Principles — approach to sentencing where statute provides mandatory minimum sentence — whether sentencing judge erred by not applying the Bahar approach — where sentencing judge should have applied Bahar approach — where ground made out SENTENCING — Crown appeal against inadequacy of sentence — Manifest inadequacy — where failure to apply Bahar approach led to starting point of minimum mandatory sentence — whether indicative sentence inadequate — where indicative sentence not ‘of a severity appropriate in all the circumstances of the offence’ as required by statute — where ground made out CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — when ‘relevant conduct’ in s 474.22A of the Criminal Code (Cth) had to occur for s 16AAB of the Crimes Act 1914 (Cth) to apply CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — whether conduct was a ‘State or Territory registrable child sex offence’ — where offence was not a registrable offence at the time committed

Catchwords:

CRIME — Appeals — Appeal against conviction — whether trial judge reversed onus of proof — where trial judge stated Ewen and Murray directions — where no incorrect statement of principle CRIME — Appeals — Appeal against conviction — whether inconsistencies in evidence were not taken into account by trial judge — whether reasons adequately addressed inconsistencies in evidence CRIME — Appeals — Appeal against conviction — whether evidence of sexualised conduct taken into account by trial judge in the absence of findings — whether all evidence needs to be addressed irrespective of significance CRIME — Appeals — Appeal against conviction — Unreasonable verdict

Catchwords:

CRIME — appeal against sentence — whether sentence manifestly excessive — relevance of encouragement of undercover operative to assessment of objective seriousness — application of Taouk principles

Catchwords:

CONVICTION – APPEAL – applicant found guilty of two counts of sexual assault – acquitted on other two counts – no dispute on two guilty counts that sexual acts occurred – victim gave answer to ambiguous question capable of suggesting she consented – necessary to consider evidence as a whole – whether verdicts inconsistent – verdicts can be reconciled on basis victim’s evidence imprecise about whether sexual acts on counts that led to acquittals occurred – whether verdicts of guilty unreasonable – reasonably open to jury to be satisfied beyond reasonable doubt that applicant knew victim did not consent

Catchwords:

CRIME – appeals – appeal against conviction – challenge to prosecutor’s address to jury – misstatement of evidence – use of colloquial expressions – tendency to inflame prejudice – expression of personal opinions – miscarriage of justice CRIMINAL PROCEDURE – whether prosecutor’s submissions on accused’s lies unfair – prosecutor’s characterisation of defence case as “red herring” and “myth” inappropriate but qualified – whether prosecutor impugned own witnesses’ credit – whether prosecutor impugned defence counsel – trial judge correction of baseless allegation against accused – whether prosecutor’s emotive language caused prejudice – no miscarriage of justice

Catchwords:

CRIMINAL LAW – appeal against conviction – trial by judge alone – whether trial judge should have directed herself in terms of s 165B of the Evidence Act – where no application for such a direction was made – whether failure to make direction resulted in a miscarriage of justice

Catchwords:

CRIME – Appeals – Interlocutory appeal – s 5F of the Criminal Appeal Act – Appeal against refusal of permanent stay by primary judge – Delay of two decades between murder and charge – Whether delay was unreasonable – Whether proceedings were unfairly burdensome and vexatious – Whether continuation of proceedings amounted to abuse of court’s process – General principles governing grant of permanent stay of criminal proceedings – Where delay was not unreasonable – Where aspects of unfairness could be dealt with at the trial – Appeal dismissed

Catchwords:

CRIME – appeal against conviction – applicant convicted of 13 assaults, acts of indecency, indecent assault and aggravated sexual intercourse against three complainants – applicant challenged jury's verdicts on 7 counts – challenged counts involved all offences with one complainant and some offences involving a second complainant – whether convictions were unreasonable – inconsistencies in complainants’ evidence – absence of record of complaint of assault in contemporaneous notes taken by police officer – weaknesses in Crown case at forefront of addresses to jury – no challenge to other convictions, nor to the applicant’s history of domestic violence – having regard to advantages of jury, no basis for setting aside guilty verdicts – leave granted but appeal dismissed

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – historical child sexual offences – trial by judge alone – where applicant a teacher in school attended by complainants – position of trust – unrepresented applicant – where applicant convicted on a majority of counts on the indictment – whether verdicts unreasonable – whether evidence unfairly admitted – whether applicant incompetently represented by counsel at trial – where applicant’s principal contention was that trial judge failed to conclude that complainants had motive to lie CRIMINAL LAW – appeal – appeal against sentence – where applicant raises manifest excess as a ground without identifying legal error – where applicant’s principal argument asserting manifest excess was that he was wrongly convicted

Catchwords:

CRIMINAL LAW – sentence appeal – whether parity principle applied – whether offenders were co-offenders in a common criminal enterprise – whether there was a marked disparity – justifiable sense of grievance – applicant re-sentenced

Catchwords:

CRIME — appeal against conviction — whether jury’s verdicts unreasonable — one count of armed robbery and one count of assault with intent to rob — victims did not identify appellant — no objective evidence connecting appellant with offences — Crown case dependent on evidence of a co-accused who was the driver of the vehicle — driver’s evidence unsatisfactory — not open to jury to accept driver’s evidence as proving appellant’s guilt beyond reasonable doubt — convictions quashed and verdicts of acquittal entered

Catchwords:

CRIME – Sentence Appeal – operation of pre-conditions to s 21A(3)(I) OF Crimes (Sentencing Procedure) Act – failure to take account of mandatory consideration – mistake of fact as to extent of applicant deprivation – non-acceptance of unchallenged and uncontroverted evidence – appeal upheld – resentence.

Catchwords:

CRIME – appeals – appeal against sentence – where applicant pleaded guilty in Local Court to robbery in company – discount for assistance – where another offender involved – where other offender identified by applicant - where alleged co-offender not prosecuted – whether sentencing judge erred in not having regard to all matters set out in s 23(2) in assessing value of applicant’s assistance – whether discount of 5% was open to sentencing judge CRIME – appeals – appeal against sentence – parity – where applicant’s 16-year-old sister was co-offender and was sentenced in Children’s Court – whether disparity between sentences imposed on applicant and young person gave rise to a justifiable sense of grievance – where parity not raised by the applicant before the sentencing judge – significant differences between applicant and co-offender – no justifiable sense of grievance

Catchwords:

SENTENCING – appeal against sentence – co-offenders – different discounts for respective pleas – difference in accumulation due to applicant’s greater culpability and additional Form 1 offence – difference in non-parole period due to differences in motive, health needs and prospects of rehabilitation – disparity justified

Catchwords:

CRIMINAL PROCEDURE — s 5F Criminal Appeal Act 1912 — temporary stay of proceedings granted to enable applicant to seek leave to appeal against a decision of the District Court refusing a permanent stay application — reluctance of appellate courts to fragment criminal proceedings at first instance — prospects of appeal succeeding and balance of convenience considered CRIMINAL PROCEDURE — whether plea bargains are a form of contractual undertaking — whether arguable that an abuse of process on the part of the Crown to reinstate charges that it agreed not to prosecute pursuant to a plea bargain with the applicant

Catchwords:

APPEALS – leave to appeal against pre-trial rulings – s 5F(3) Criminal Appeal Act 1912 (NSW) – undesirability of fragmenting and delaying resolution of criminal proceedings at first instance not outweighed by arguments mounted by applicant

Catchwords:

CRIME — Appeals — Appeal against sentence – aggregate sentence for offences involving dishonesty – concession by the Crown that sentencing judge was mistaken as to the maximum term of imprisonment for three offences on a s 166 certificate and as to the backdating of sentence – appeal allowed – re-sentence – affidavits tendered on re-sentence – whether more favourable subjective findings should be made

Catchwords:

CRIME — Appeals — Appeal against conviction – manslaughter – whether trial judge failed to properly put the defence case in the summing up – requirement for a fair and balanced identification of the issues and respective cases – Rule 4.15 of the Supreme Court (Criminal Appeal) Rules – no request for further directions at trial – whether miscarriage of justice – consideration of weight to be given to jury’s advantage of seeing and hearing witnesses – whether summing up raised consciousness of guilt – whether error to instruct jury as to entitlement to give less weight to exculpatory statements than admissions – Bench Book direction – whether verdict unreasonable

Catchwords:

CRIME — Appeals — Appeal against conviction — Application of rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to grounds — Adequacy of direction that evidence be considered as a whole — No proper basis for a Murray direction — Whether the trial judge should have directed the jury about matters relating to credibility — Matters quintessentially within the province of the jury require no direction CRIME — Appeals — Appeal against sentence Application for leave to appeal successful — Whether the sentencing judge erred in failing to sentence in accordance with the principles in Chiro v The Queen (2017) 260 CLR 425; [2017] HCA 37 — Whether the sentencing judge was entitled to sentence in accordance with Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 — Whether principles in Chiro v The Queen apply wherever extended unanimity direction given or only for omnibus offences which require proof of facts which themselves amount to offences – Alleged failure to take into account delay CRIME — Appeals — Crown appeal against sentence — Whether sentence imposed was manifestly inadequate – relevance of respondent’s age – need for general deterrence – objective seriousness of criminal conduct

Catchwords:

CRIME — Appeals — Appeal against sentence — Whether sentencing judge erred in the assessment of the objective seriousness of the firearm offence — Sentencing judge appeared to treat the presence of ammunition as an aggravating factor — Unfair to have regard to ammunition as an aggravating factor where there was no evidence that the ammunition could be used with the firearm — The relevance of the ammunition required closer scrutiny — House v The King error established CRIME — Appeals — Appeal against sentence — Whether sentence manifestly excessive — Circumstances of this case departed from the circumstances contemplated in the armed robbery guideline judgment — Starting point in excess of that contemplated in the guideline was warranted CRIME — Appeals — Appeal against sentence — Whether the court proceeded on an erroneous view of the facts — Fresh evidence of child sexual abuse disclosed post-sentence — Unnecessary to determine CRIME — Appeals — Appeal against sentence — Appeal allowed — Resentence — Child sexual abuse — Post-traumatic stress disorder leading to substance abuse — Mental health conditions were present at time of offending — Willingness to seek assistance for mental health and substance use issues — Lesser sentence imposed

Catchwords:

CRIMINAL PROCEDURE – order to produce – application to set aside by Commissioner – documents sought by respondent in relation to appeal against murder conviction – documents pertaining to the police investigation – onus on respondent to show legitimate forensic purpose – applicable approach after Blacktown and Waters – where many of the documents already produced or not in the Commissioner’s possession – onus not discharged – application granted – order set aside

Catchwords:

CRIME – Appeals – Appeal against sentence – Commonwealth offences – Requirement to take into account offender’s contrition for offence – Distinction between rehabilitation and remorse – Whether offender “downplaying” criminality – Remorse does not require abandoning attempts to identify mitigating factors – Held that sentencing judge did not duly consider offender’s contrition – Sentence appeal allowed

Catchwords:

APPEAL – interlocutory ruling rejecting Crown evidence – CCTV footage – assessment of relevance – no question of principle

Catchwords:

CRIME – appeals – appeal against sentence – alleged error in assessment of objective seriousness – parity – applicant sentenced on agreed facts different to co-offenders – other facts disclosed more serious criminality – applicant instigated and planned offending, co-offenders assisted – no error in assessment of objective seriousness – no disparity – appeal dismissed

Catchwords:

CONVICTION APPEAL – applicant faced trial on 10 counts of child sexual assault involving two victims – convicted on one count involving one victim which was supported by evidence from other victim – Markuleski direction – trial judge told jury they could use any doubt about a victim’s evidence on one count in considering their evidence on other counts involving that victim but not in addressing any count concerning the other victim – effect of direction was to preclude jury from using any doubts about the evidence of one of the victims in the assessment of so much of their evidence that related to the count concerning the other victim – point not taken at trial – no forensic advantage to accused – miscarriage of justice – unreasonable verdict – whether verdicts inconsistent – whether evidence supporting conviction meant that it was unreasonable – whether commission of offence improbable because of risk of detection – ground rejected – verdict not unreasonable – appropriate order – retrial ordered

Catchwords:

CRIME – Appeal by Crown against acquittals – charges of sexual touching – respondent suffering from “sexsomnia” – question of volition – construction of phrase “mental health impairment” – s 4 Mental Health (Forensic Provisions) Act 2020 – whether Act codifies or alters the common law concerning the mental illness defence - relevance of common law defence of non-insane automatism –whether sexsomnia is a mental health impairment – question of correctness of construction and application of Act at trial

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:

CRIMINAL LAW – Sentence – Appeal – Where the applicant pleaded guilty to importing a border controlled drug concealed in the lining of a suitcase – Where the Crown specifically disavowed a case based on the applicant having actual knowledge of the drugs – Crown case put on the basis of recklessness – Where the effect of the applicant’s evidence was that he had turned his mind to the possibility that he was importing drugs – Where the relevant legislation defined recklessness in terms of the existence of a substantial risk rather than a possibility – Where the sentencing judge made reference to the applicant’s evidence when assessing his criminality and his level of recklessness – Whether that approach reflected the application of an incorrect test – Necessity to read the reasons for sentence as a whole – No error established – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIMINAL LAW – Sentence – Appeal – Where the three applicants were involved with a number of other persons in offending involving evading excise duty payable on tobacco products – Complicated and difficult sentence proceedings involving complex facts, numerous offenders and a multiplicity of different charges – Where two of the applicants advanced specific submissions as to their respective prospects of rehabilitation – Where third applicant advanced specific submissions as to the disposition of the matters by way of an Intensive Correction Order – Where none of those submissions were considered by the sentencing judge – Necessity to engage with specific submissions made and provide adequate reasons – Error established – Applicants resentenced – Objective seriousness of the offending – Substantial amounts of duty involved – Need for general deterrence – Effects of lengthy delay in the finalisation of proceedings – 3 year delay between date of arrest and sentence hearing – 9 month delay between sentence hearing and passing of sentence – Latter period of delay brought about by the effects of the Covid-19 pandemic on listing arrangements in the District Court – Prospects of rehabilitation – Parity considerations

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – sexual intercourse without consent – whether verdict of the jury was unreasonable – whether verdicts of the jury were inconsistent – whether rational explanation for differing verdicts

Catchwords:

BAIL – Where respondent was convicted in the Local Court and sentenced to a term of full time imprisonment – Where an appeal to the District Court was dismissed – Where the respondent then commenced proceedings seeking judicial review of the decision of the District Court – Where the respondent was granted conditional bail – Where respondent’s visa had been cancelled resulting in his being taken into the custody of the Australian Border Force on his release – Agreed between the parties that there had been a relevant change in circumstances which had a material and potentially adverse effect on the applicant’s prospects of success in the judicial review proceedings – Where Crown made an application for the respondent’s detention – Agreed between the parties that the application should succeed and that the respondent should be returned to the custody of Corrective Services NSW – Orders made – No point of principle

Catchwords:

CRIME – sentencing – appeal against sentence – two counts of vehicular manslaughter – additional count of dangerous driving causing grievous bodily harm – two people killed – offender heavily intoxicated – whether sentencing Judge erred in finding facts – whether Judge failed to afford procedural fairness – finding that offender always intended to drive away from hotel – thoughtful and comprehensive sentencing judgment – no patent error established – no denial of procedural fairness CRIME – sentencing – whether sentence manifestly excessive – tragic case – offending approaching but not within the worst category of case – survey of comparable cases – totality – aggregate sentence – where individual indicative sentences high but within range – totality and notional accumulation – (by majority) aggregate sentence held to be excessive – appeal allowed – applicant re-sentenced

Catchwords:

CRIME – appeals – appeal against sentence – applicant sentenced for sexual offences committed against 14-15 year old student – where applicant was a physical education teacher – explicit material exchanged on Snapchat – touching on the outside of clothing – where the applicant’s borderline personality disorder materially contributed to the commission of the offending – sentence manifestly excessive – weight to be afforded to the promotion of rehabilitation of the applicant – error in taking into account in relation to one offence a standard non-parole period that had ceased to be applicable

Catchwords:

CRIMINAL LAW – Appeal against conviction – judge alone trial - applicant found guilty of sexual assaults on two young boys some 50 years earlier – whether reasons of trial judge complied with s 133 of Criminal Procedure Act 1986 (NSW) – inconsistencies in complainants’ evidence with established facts – divergence of complainants’ evidence from their police statements – evidence of reconstruction of aspects of complainants’ recollection – uncontradicted evidence of appellant’s movements at the time – convictions quashed and acquittals entered

Catchwords:

CRIMINAL PROCEDURE — costs — application for certificate under Costs in Criminal Cases Act 1967 (NSW) — successful appeal against conviction for sexual assault — where complainant’s credibility a central issue at trial — whether institution of proceedings unreasonable