CRIME – Proper construction of s 110(c) LEPRA and s 139(2) of Evidence Act – Meaning of “the person has been informed that they are free to leave” for the purpose of s 110(c) of LEPRA and “an investigating officer who does not have the power to arrest” for the purpose of s 139(2) of the Evidence Act – s 99 LEPRA – s 138 Evidence Act – Evidence obtained in contravention of improprieties – Admissibility – Balancing exercise
COSTS — defendant seeks the imposition of a cap on costs after judgment has been entered – defendant seeks an issue by issue approach to be applied to the costs order
CIVIL PROCEDURE — Time — Extension of time – application to extend the 12 year long-stop limitation period – ascertaining the date on which the cause of action was discoverable – matters relevant to the exercise of discretion
CRIME – SENTENCE – Found guilty by jury – Attempt to possess border controlled drug – Marketable quantity of heroin – Package containing drug intercepted and substituted – Accepted by offender from UCO posing as delivery man – Whether offender knew drugs in delivery – Inferences to be drawn from electronic evidence (mobile phones and computer tower) – Prior conviction in New Zealand – Claimed need to care for elderly parents – Whether further attempts at education (university degree) realistic.
CRIME – SENTENCE – Import commercial quantity of border controlled drug – 4.618kg pure methamphetamine – Foreign national – Offender elected not to give evidence to explain discrepancies in subjective evidence – Consideration of effect of sentence on family and dependents – Good prospects of rehabilitation.
CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.
CRIMINAL LAW – interpretation – fraud and dishonesty offences – offence of fraudulent embezzlement by clerk of servant – whether ‘fraudulent’ is equated to the test for dishonesty in s 4B of the Crimes Act 1900 (NSW) – significance of earlier High Court authority on offences concerning fraudulent conduct which do not have dishonesty as an essential element of the offence
CRIME – SENTENCE – PLEAS OF GUILTY Commonwealth Offences: Furnish authority with document containing false or misleading statements – Mid-range objective seriousness. Obtain travel documents dishonestly – Low-range objective seriousness. Conceal had been known by any other name and had been convicted of offence – above mid-range objective seriousness. Minimal criminal history – Historical crimes – Low risk of reoffending – High prospects of rehabilitation – Remorse. Effect of sentence on child in kindergarten – Offender sole parent.
STATUTORY INTERPRETATION – Companion Animals Act 1998 (NSW) – whether bodily injury within the meaning of s 25(1)(a) includes psychological injury caused by trauma of witnessing attack on the plaintiff’s dog at the time of the attack on the plaintiff – damages for psychological injuries limited to the sequelae of physical injuries suffered by the plaintiff and the trauma of the attack on her ASSESSMENT OF DAMAGES – approach to be applied to an interrelated but not compensable causal factor – evidentiary onus to disentangle contributing causes – unrealistic on the evidence to dissect components of a psychiatric injury suffered in one event – quantification of buffer for economic loss
CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act 1986, s 196
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability – Guarantor’s awareness of charges due under the contract the subject of the Guarantee and Indemnity
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIME – aggravated break and enter and specially aggravated break and enter. CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.
CRIME — Citizenship and migration offence – Furnishing false and misleading information to a migration official in connection with entry into Australia and application for a visa – Arrival on tourist visa with intention of staying – False personal details provided for both protection visa and citizenship application – Failure to declare relevant matters for both protection visa and citizenship application – Previous denial of protection visa SENTENCING — Penalties – Recognisance SENTENCING — Unexplained delay – Stale offences – Offences committed 10-14 years previously SENTENCING — Subjective considerations on sentence – Childhood hardship – Poverty – Abuse – Arrest and abuse in China for violation of One Child Policy
PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall through void – failure to undertake adequate risk assessment – failure to enforce defendant’s control to use scissor lift – inadequate information, training and instruction to workers about hazards and controls – failure to provide adequate supervision to ensure compliance with SWMS – failure to prohibit work near voids and penetrations through which a person could fall
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence - parity COSTS – prosecution costs OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – inadequate training, instruction and supervision
CRIMINAL LAW – appeals and reviews – appeal against conviction – sexual offences – carrying out sexual act without consent – domestic violence offences – stalking or intimidation offence – whether the accused knew that the complainant was likely to suffer physical or mental harm
CRIME – SENTENCE – Knowingly take part in supply of prohibited drug – Large commercial quantity of cocaine (3.164kg) – Remorse shown – Good prospects of rehabilitation – Low to moderate prospects of recidivism – Special circumstances found.
CRIMINAL LAW – Application for further and better particulars – Application to quash indictment – Application for permanent stay of proceedings – Negligent manslaughter -Dangerous driving causing death – Drive manner dangerous – Accessory before the fact to the offence of dangerous driving causing death - Aid and abet- failure to take reasonable care – Criminal negligence – Recklessness – Negligent loading – Securing load
NEGLIGENCE – risk was foreseeable – risk was not insignificant – reasonable person in the position of the council would have taken precautions – significant probability that the harm would occur – serious harm could result – minimal burden to take precautions – social utility – factual causation established – scope of liability extends to the harm so caused DAMAGES – non-economic loss – past and future out of pocket expenses – future domestic assistance OTHER – trip in hole in nature strip – council had actual knowledge
CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence
CONTRACTS – Construction and interpretation – Commercial setting known to both parties at the time of contract – Proper construction of liquidated damages provision – Does it apply to Goods and Services Tax not expected or able to be paid on completion – Construction of contract that provides sensible commercial outcome to be preferred CONTRACTS – Remedies – Damages – Purpose of liquidated damages provision is to provide agreed mechanism for proof of damages for breach of contract – Only has work to do in circumstances of breach
CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CRIME — Child sex offences — Child abuse material — Possession CRIME — Bestiality material — Possession SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis — Advanced age — Health issues — Time in custody onerous
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury WORK HEALTH AND SAFETY
CRIME – SENTENCING – five counts of embezzlement by clerk – offender was manager of a community bowling club and embezzled funds over a period of five years through fake invoices and unsupported expenses – total amount embezzled was $1,788,805 – offender made admissions when confronted by club board – offender suffered from gambling addiction – offender disputed total amount embezzled on sentence – late guilty plea – assessment of objective seriousness of fraud-like offences – breach of trust – strong prospects of rehabilitation – offender subsequently employed as counsellor with Lifeline and assisted others with gambling addiction – remorse and contrition – finding of special circumstances – need for general and specific deterrence in cases of white collar crime – sentence of full-time imprisonment warranted
SENTENCING - aggravated dangerous driving causing death – application of Whyte guideline - fulltime custody – history of alcohol abuse – no remorse or insight. Tension between a reduction of moral culpability for cognitive impairment and mental health issues and s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 for intoxication.
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Assault occasioning actual bodily harm knowing that people were there SENTENCING — Aggravating factors — Home of victim — In company — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Care not to impose a crushing sentence — Deterrence — Form 1 offence — Moral culpability — Objective seriousness — Proportionality SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorder — Childhood trauma
CRIME – Special hearing – previous trial – retrial ordered by Court of Criminal Appeal – subsequent finding of unfitness – Director elected special hearing – historical allegations said to have occurred between 1973 and 1991 – tendency evidence – allegations that the accused in part used hypnosis (or relaxation therapy involving massage) on complainants – expert evidence on memory and hypnosis – accused gave evidence in original trial – three further complainants subsequent to grant of re-trial
NEGLIGENCE – motor vehicle accident – remitter from Court of Appeal relating to liability only – dispute as to factual matters relating to liability - no expert report evidence - principles applicable – credit and reliability in issue
PRACTICE AND PROCEDURE – plaintiff commences proceedings for malicious prosecution against his former wife shortly before expiry of limitation period – long history of litigation between plaintiff and defendant in other courts - plaintiff fails to comply with timetable orders including guillotine orders – plaintiff diagnosed with inoperable cancer and seeks to explain his defaults as being health-related – plaintiff ordered to show cause and continues to fail to comply with orders – orders to serve amended pleadings and evidence not complied with despite imminent hearing date – certainty that the 4-day-plus hearing date will have to be vacated – proceedings dismissed with costs. COSTS – defendant seeks gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether sufficient information before the court – whether court should inquire into the nature of the costs agreement where a party’s lawyers are acting pro bono – application refused.
CONTRACT – loan of $300,000 by the plaintiff to the defendant – whether money advanced was a loan or a gift – whether the terms of the contract were varied – quantum – no issue of principle
CRIME – sentencing – specially aggravated break and enter – larceny – two co-offenders and third unidentified co-offender – joint criminal enterprise – youth – mental health and disability – deprived background
SENTENCING - drive manner dangerous causing death – drive manner dangerous causing grievous bodily harm - application of Whyte guideline - fulltime custody required for a drive manner dangerous - availability of ICO when Offender in custody on other matters bail refused
DEFAMATION – three lengthy social media podcasts and X posts over a 10-day period – imputations that the plaintiff engaged in criminal activity including paedophilia and abuse of children, was the leader of an international criminal and paedophile cult and had perjured himself in legal proceedings – application by second defendant for preliminary rulings on serious harm – evidence of thousands of listeners and readers – matters remained on the social media site for an extended period – evidence of grapevine effect in the form of publications on other podcast and social media sites – whether serious harm findings should be the subject of a ruling now, at a later interlocutory stage, or at the trial – parties with limited financial means – desirability of early trial – serious harm findings made in the context of an early trial hearing date being set PRACTICE AND PROCEDURE – impact on case management of second defendant’s submissions referring to non-existent and/or misstated judgments and legal principles, in breach of District Court General Practice Note 2 Generative AI Practice Note
SENTENCE- cannabis supply SENTENCE- relevant factors on sentence -courier- multiple transactions- first time in custody- strong pro-social support- used time on remand to advantage- - excellent prospects of rehabilitation - intensive correction order appropriate and in community interest
SENTENCING - Juvenile offender - To be dealt with “according to law”. SENTENCING - Non-parole period - special circumstances – principles to be applied. SENTENCING - Relevant factors on sentence – youth – immaturity – deprived background – long history of offending – drug use – intellectual disability – serious offending - aggravated break and enter – aggravated take and drive vehicle- knife used – on parole – aggregate sentence – totality – parity adult and child.
CRIME - Sexual intercourse without consent - Intentionally record intimate image w/o consent (DV) SENTENCING - Relevant factors on sentence – late guilty plea- some early admission- no-consensual sexual intercourse during a relationship – sleeping victim - no” means “no” - offender expresses regret and remorse but has difficulty accepting the wrongness of his actions- strong subjective case – purposes of sentencing - rehabilitation and retribution considered - need for custodial sentence
CRIME — Property offences — Break and enter and steal — Larceny — Possess housebreaking implements — Take and drive a conveyance — Police pursuit — Use offensive weapon to prevent detention CRIME — Summary offences — Custody of knife in public place TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Failure to give particulars SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — Form 1 offences — Moral culpability — Multiple offences —Objective seriousness — Purposes of sentencing — Proportionality SENTENCING — Subjective considerations on sentence — Drug addiction — Traumatic brain injury — Traumatic childhood — Poverty — Childhood sexual abuse — Institutionalisation —Motivation to rehabilitate — Avoiding a crushing sentence
CRIMINAL LAW - Conviction Appeal - Sentence Appeal - Possession of a knife (not a prohibited weapon) in Court premises – Dominion and control over the knife – Mental intent for possession
CRIME – Sentencing – Intentionally recording intimate images without consent – Creation of child abuse material – Later possession does not inform creation – Prosecutors must ensure not to lead a judge into error – Unusual case of reckless creation of child abuse material – Gross breach of trust of Airbnb guests
COSTS – plaintiff obtains award of nominal damages for breach of contract after abandoning claims for substantial damages for breach of contract (and in negligence) and compensation for non-compliance with consumer guarantees – plaintiff fails to obtain order for court-ordered apology under the Australian Consumer Law – characterisation of the ‘event’ for the purposes of r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – whether ‘successful’ party should be wholly or partly disentitled to its costs
BUILDING AND CONSTRUCTION — Contract — Defects – Home Building Act 1989 (NSW) – Design and Building Practitioners Act 2020 (NSW) – liability of builder – liability of engineer
WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – presumptive and actual prejudice – availability of witnesses and evidence – whether plaintiff establishes the conduct of the trial will not cause the defendant significant prejudice such as to render the trial unfair – appropriate costs order
CIVIL PROCEDURE – Stay of proceedings – Application for permanent stay of proceedings based on the passing of approximately 54 years since the alleged events – Has the impoverishment of evidence caused by the passage of time resulted in a fair trial not being possible – Principles to be applied – Stay refused TORTS — Trespass to the person — Alleged sexual assaults in 1971 or 1972 when the plaintiff was 6 or 7 years’ old – Proof – Onus of proof – Assessing reliability or accuracy of evidence based on memory of events more than 50 years ago
CRIME – SENTENCE – supply large commercial quantity of methylamphetamine – where offender only participated in offence for one minute – strong subjective case – good prospects of rehabilitation and low risk of reoffending – whether Intensive Correction Order available – term of ICO adjusted to take pre-sentence custody into account
STAY – application to stay civil proceedings whilst active police criminal investigation relating to defendant’s main witnesses’ alleged conduct arising from the same facts ongoing – factors to be considered
SENTENCING — Sentence after Guilty pleas – Child sex offences — Procuring or grooming child for unlawful sexual activity – Fail to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 – Child Exploitation Internet Unit – Prior similar offending –– Strong subjective circumstances
Crime – Sentence – Aggravated break and enter with intent to commit assault occasioning actual bodily harm – Reckless driving failing to stop in the course of a police pursuit – Driving whilst disqualified.
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — Fail to comply with child protection reporting obligations SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Maximum penalty — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Childhood sexual abuse and trauma — Mental disorders
CRIME – Sexual intercourse without consent - Assault with act of indecency SENTENCING — Relevant factors on sentence —sentence after trial - victim impact - young offender - strong subjective case
CORPORATIONS — Voluntary administration – Stay of proceedings – Does s 440D operate as a stay of an application by a defendant to a claim for a gross sum costs order against the company?
LEASES AND TENANCIES – Failure to make good – Necessary to compare condition of premises at time of handover date of the sublease and the date of termination of the sublease – That comparison is different to the similar claim made by the landlord on the plaintiff in relation to the head lease DAMAGES – Proof of damages by reference to a settled claim – Where settled claim a different claim to that being made by the plaintiff
Criminal law — Sentencing — Sexual Offences — Aggravated Sexual Assault — Section 61J(1) of the Crimes Act 1900 (NSW) — Where complainant under the age of 16 years — Whether Offender was in a position of “authority” or “trust” — Whether Offender’s continuing claim of innocence prevents a finding of positive prospects of rehabilitation — Whether continuing claim of innocence affects assessment of recidivism risk
CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury
Criminal Law — Special Hearing — section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — Defendant unfit to be tried — judge alone trial — sexual Offences — section 66DC(a) of the Crimes Act 1900 (NSW) — sexual act towards a child under the age of 10 years — section 66A(1) of the Crimes Act 1900 (NSW) — sexual intercourse with a child under the age of 10 years — section 293A of the Criminal Procedure Act 1985 (NSW) — where Complainant states a lack of memory about alleged offending — where there are inconsistencies between Complainant evidence and complaint evidence
CONTRACTS – supply of services by aged care provider – action in contract for breach of express and implied terms relating to the care of a patient – construction of contractual duties – significance of regulatory context – standard of obligation to observe and act on rights in a Charter – whether alleged breach(es) of duty established CONSUMER LAW – services supplied to a deceased person in an aged care facility – characterisation of ‘services’ – whether non-compliance with care guarantee CONSUMER LAW – remedies – executor of deceased’s estate claims relief by way of public apology by the service provider– whether District Court has jurisdiction to make orders under s 237 and s 243 of the Australian Consumer Law – whether a court is empowered to grant the relief sought under s 237 to an individual applicant where the relief is not expressly available in s 243 – whether ‘loss or damage’ has actually or is likely to be sustained – consideration of the nature of the remedy of a court-ordered public apology informing the Court’s discretion to grant the relief
PERSONAL INJURY – scope of duty of care owed by Defendant/Council – whether Defendant/Council owed a duty of care – scope of Defendant/Council duty of care – whether Plaintiff pedestrian on a footpath exercised reasonable care – negligence of public authority Defendant/Council – fall on raised lip/edge of section of footpath in partial light – relevance of Defendant/Council’s footpath assessment and maintenance Policy – where Defendant/Council knew of the hazard – whether Defendant/Council breached its duty of care – ss 5B, 5C, 5D, 5E CLA – whether raised lip in footpath was an obvious hazard – ss 5F, 5H CLA – onus of proof of negative proposition that Defendant/Council failed to monitor the hazard where Defendant/Council had greater means to produce evidence – application of s 42 CLA – application of s 43A CLA – contributory negligence - DAMAGES – causation – assessment of damages for future loss where no expert medical opinion of natural course of progression of pre-existing advanced arthritis.
CRIME – Sentence – Pleas of Guilty – 4 offences of sexual intercourse with child under the age of 10 years, namely 8 and 9 years, against s 66A(1) Crimes Act 1900 (NSW) – 4 offences of sexual intercourse with child under the age of 14 years, namely 10 and 11 years against s 66C(2) Crimes Act 1900 (NSW) – 1 offence of common assault against s 61 Crimes Act 1900 (NSW) – aggravation of abuse of position of authority by action in breach of position of trust – principles – s 66C(2) – aggravation by abuse of position of trust or authority s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) – Form 1 offences and uncharged acts – principles of approach – indicative sentences – aggregate sentence – where offender was victims’ mother’s partner and offended when she was absent
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse
SENTENCING – Powers of court – Penalties - Intensive Correction Order (ICO) – No power to impose ICO if the offender resides outside NSW SENTENCING – Mitigating factors - Hardship to a third party – exceptional circumstances SENTENCING – Relevant factors on sentence - Relevance of a finding that the offence was committed while the subject of a coercive relationship
CONTRACT – Oral guarantee – Written contract purported to be a written guarantee – International contractual agreement – Where foreign law not pleaded – Where agreement lacks consideration
CIVIL – COMPENSATION – Application for closed period redemption – Not pleaded based on proper understanding of case law and evidence available – Compromise too great – Application refused.
CRIMINAL PROCEDURE — Trial — Judge-alone — Reasons of trial judge — 6 counts on indictment — Possession of commercial quantity of methylamphetamine; possession of .22 long rifle calibre cartridges; possession of prohibited firearms — Extended definition of possession in the deeming provision s 4A of the Firearms Act 1996 — Common law definition of possession.
CIVIL – CONTRACT – Order to deliver up goods not complied with – Referral of Plaintiff’s application for contempt against the Defendants to Supreme Court of NSW.
PRACTICE AND PROCEDURE – Application for adjournment – Failure to comply with earlier orders – Failure of defendant to serve any evidence – Alleged illness of defendant – Defendant’s solicitor still on record – Adjournment refused. CONTRACT – Repudiating conduct by defendant – Finance of 2021 Ferrari two door coupe – Failure to pay instalments – Orders that defendant deliver to plaintiff motor vehicle and authorising plaintiff to repossess vehicle and ancillary orders.
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker
CRIME – s21(2) CPA Application for severance of indictment into 5 different trials – 9 counts, including counts of larceny, break and enters and a take and drive conveyance without consent – Granted in part.
CRIME – SEVERITY APPEAL – 40 Offences in Local Court – Combined aggregate sentences amounting to 29 years and 3 months – Appellant sentenced to 5 years imprisonment with no parole period – Personal circumstances considered on appeal – Parole period fixed. SENTENCE – For 3 offences – Aggregate sentence on top of non-parole period fixed on Severity Appeal – Special circumstances.
CRIMINAL - SENTENCE - robbery in company - dishonestly obtain a financial advantage by deception - expert witnesses - non compliance the Expert Code of Conduct - consequences - Parity - Special circumstances.
CRIME — Historic child sex offences — Assault and act of indecency of a girl CRIME — Appeal and review — Appeal District Court to Supreme Court — Matter remitted to District Court for resentence RESENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Multiple offences — Totality — Not impose a crushing sentence SENTENCING — Subjective considerations on sentence — Chronic health issues — Advanced age — Mobility issues — Vulnerable in custody
Aggravated break and enter - robbery in company - stealing - carried in conveyance without consent of owner - assault occasioning actual bodily harm - joint criminal enterprise - legal and moral culpability - parity in sentencing co-offenders - "... it is in the highest degree desirable that co-offenders be sentenced by one judge…"
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – costs
CIVIL PROCEDURE – transfer of proceedings from Local Court to District Court pursuant to s 140 Civil Procedure Act 2005 (NSW) – plaintiff obtains default judgment in the Local Court – prior to assessment hearing being commenced plaintiff seeks transfer to District Court – defendant raises quantum and other discretionary matters in opposition to transfer – whether plaintiff has established sufficient reason for transfer
SENTENCING — Child sex offences, 11 counts — Sentence following jury trial — Elderly offender — Offences committed by offender between his late 60s to early 80s — Two complainants — No contrition or remorse for offences to which offender pleaded Not Guilty at trial — No prior criminal history — Abuse of position of trust between complainants and offender — Element of grooming — Offender paid one complainant for sexual acts — Offender provided other complainant with gifts — Significance of general deterrence for child sexual abuse offences.
CRIME – SENTENCE - Attempt import commercial quantity of border controlled drug - N,N-Dimethylamphetamine – Offender on tourist visa – Impact of language and cultural differences on whether incarceration onerous.
COSTS — Appeals — Appeal from a costs assessment – question of whether the defendant was entitled to legal fees – was the costs agreement an entire contract
COSTS – application for costs, including indemnity costs, following rejection of an oral “walk away” offer made on the morning of the hearing – no issue of principle
TORT – assault, battery, trespass to the person and false imprisonment - plaintiff buys house from defendant – defendant asserts there was an oral agreement the plaintiff would split the profits from a subsequent resale with him, which the plaintiff denies – plaintiff and defendant have a chance encounter in the street and come to blows - police called to the scene charge plaintiff and defendant, who both plead guilty – no conviction recorded for plaintiff but defendant is fined - plaintiff brings proceedings for damages for assault, battery, trespass to the person and false imprisonment – claim for damages including aggravated and exemplary damages - nominal and derisory damages
PRACTICE AND PROCEDURE – Pleadings – Cross-claim – Is it necessary to seek by way of cross-claim relief claimed under remedial legislation or is it sufficient to plead such relief in a Defence – Are the cases that hold no requirement of a cross-claim limited to proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), which precludes the filing of a cross-claim
CRIME – SENTENCE – Larceny – Circumstances of aggravation – Offensive weapon – Foreign national – Disadvantage due to language and cultural differences while incarcerated.
CRIME – Evidence – Proper construction of s 138 of the Evidence Act 1995 (NSW) – Causation between identified contravention/impropriety and evidence – Limitation on “but for” test – Objective expectation of subsequent offending the subject of evidence required as outer limit of “but for” enquiry
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Offensive weapon CRIME — Domestic violence — Intimidation MENTAL HEALTH — Criminal proceedings —Defence of mental illness — Special verdict of not guilty by reason of mental illness — Referral to Mental Health Review Tribunal
CRIME — Appeals — Firearms offences — Appeal against sentence — Sentence appeal dismissed CRIME — Domestic violence — Stalking or intimidation CRIME — Property offences — Break, enter and steal — Take and drive a conveyance CRIME — Firearms offences — Possess unregistered / unauthorised firearm in a public place — Possess loaded firearm in a public place SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Multiple offences — Totality — Objective seriousness SENTENCING — Subjective considerations on sentence — Identifies as Indigenous — Drug addiction — Mental health — Childhood trauma — Childhood sexual assault
Sentence – access of child abuse material – access child abuse material – state and federal offending – “Bugmy factors” – causal connection between “Bugmy factors” and offending – whether exceptional circumstances are made out in respect of federal offending
CRIME — Fraud — Victim a Commonwealth entity – Crime of submitting false claims to the NDIA purporting to be legitimate claims under NDIS – Total attempted financial gain of $214,973.93 – Total lost to Commonwealth of approximately $30,000 – Objective seriousness of crimes of fraud against the Commonwealth – Strong subjective case
CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — drug addiction — personal use CRIME — summary offences — custody of knife in public place or school
CRIME – SENTENCE – Forgery – Two charges – Investment manager in financial world – Forged auditor’s reports of his investment scheme used by his principal to entice its customers to invest with the principal – Sums invested by customers (over $14 million) reimbursed by offender within one month of offender’s principal’s learning of the forgeries – Crimes caused offender severe personal hardship – Aggregate sentence – ICO.
SENTENCING – sentence following guilty verdict CRIME — violent offences — recklessly cause grievous bodily harm — defence of self-defence rejected SENTENCING — relevant factors on sentence — circumstances of offence – street violence – lack of regard for victim’s wellbeing — substantial harm, injury, loss or damage suffered by victim — traumatic brain injury suffered by victim SENTENCING — mitigating factors — insignificant record of previous convictions — offender’s submissions on remorse not accepted by court – mental health – impact of upbringing — quasi custody SENTENCING — subjective considerations on sentence — drug addiction
PRACTICE AND PROCEDURE – Application for an advance ruling on admissibility of evidence under s. 192A Evidence Act, 1995 – application would involve determination of complex fact and law – not appropriate to give ruling
SENTENCING – Commonwealth offence – use carriage service to transmit communications to a child under 16 with intention of making it easier to procure the child to engage in sexual activity – imprisonment
TORT – defamation – application for leave under s 23 of the Defamation Act 2005 (NSW) to commence fresh proceedings against the same party for the same subject matter – leave granted
PRACTICE AND PROCEDURE – claim for negligence pursuant to s 177 of the Conveyancing Act 1919 (NSW) for failure to take reasonable care not to damage the adjoining property – subpoenae issued by defendants to the plaintiff and council for work carried out by plaintiff on his own property many years beforehand – whether parties entitled to issue subpoenae against each other as opposed to seeking discovery or issuing Notice to Produce – whether subpoenae fishing in nature – subpoenae set aside
Participate in a criminal group whose activities were organised and ongoing; deal with proceeds of crime; by deception did cause financial disadvantage; possession of false documents with intention to induce a person to accept them as genuine thereby causing financial disadvantage; deal with ID information to facilitate commission of an indictable offence
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall from roof – failure to install fall prevention devices around the perimeter of the roof – failure to properly assess anchor point requirements and develop and document an anchor point plan – failure to develop, implement and enforce a site-specific Safe Work Method Statement
CRIMINAL PROCEDURE – alleged offences committed by two accused persons arising out of the same circumstances – whether there should be separate trials or a joint trial – joint trial does not give rise to injustice or forensic unfairness – separate trials increase inconvenience to witnesses – separate trials increase costs upon the prosecutor and court – competing considerations of cost and inconvenience to defendants – separate trials are not required in the interests of justice
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director put in place no appropriate processes – director provided no appropriate resources – failure to verify PPE was in use
PROCEDURAL – amendment of Summons – whether Summons fails to disclose an offence known to the law – defendant to know the charge it has to meet – consideration of entire Summons including particulars required – whether there was a slip or clumsiness in drafting – costs of seeking an indulgence necessary as a result of need to amend
COSTS — WHS criminal prosecution —When a prosecutor has withdrawn charges — Application of principles concerning costs in WHS prosecutions from Nash v Resource Pacific Pty Ltd (No 4) — Defendants filed and then abandoned Motions arguing that the proceedings were brought outside the limitation period — Defendants subsequently pleaded guilty — Prosecutor and defendants continued litigation on a common erroneous understanding of the law — Not just and reasonable for the prosecutor to pay all of the defendants’ costs
CRIME — Drug offences — Supply prohibited drug — More than indictable quantity less than commercial quantity — More than commercial quantity — Participate in criminal group — Deal with property reasonably suspected of being the proceeds of crime SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity SENTENCING — Relevant factors on sentence — Form 1 offences — Form 1 assessment intrinsic to offences for sentence — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorders —Refugee — Childhood sexual assault – Multiple childhood traumas — Strong family support TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Drive vehicle with menaces CRIME — Appeals — Appeal against sentence
Contracts – oral contracts – terms of contract - Australian Consumer Law - misleading or deceptive conduct – unconscionability – breach of consumer guarantees
CRIME – property offences – aggravated break and enter commit serious indictable offence - aggravated break and enter with intent to commit serious indictable offence - enter land with intent to commit serious indictable offence - enter building with intent to commit serious indictable offence SENTENCE – multiple offences over a number of properties – juvenile co-offenders – past brain injury – no overt evidence of an intellectual disability, but deficits in executive functioning – principles in Bugmy enlivened – parity has little work to do in this case
CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — gambling addiction — personal use
CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm CRIME — Public justice offences — Escape police custody TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Drive motor vehicle during disqualification period SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — Multiple offences — Totality — Moral culpability — Objective seriousness — Proportionality SENTENCING — Subjective considerations on sentence — Drug and alcohol addiction — Mental health — Antisocial — Childhood deprivation — Childhood trauma and sexual abuse
BUILDING AND CONSTRUCTION – building works on a large residential apartment building – Owners of strata plan, as successors in title, rely upon entitlements to sue on statutory warranties against the builder and developer – Home Building Act 1989 (NSW), ss 18B, 18C, 18D – determination of whether defects were ‘major’ defects – Home Building Act 1989 (NSW), s 18E(4) BUILDING AND CONSTRUCTION – whether District Court empowered to make a ‘work order’ where the alternative claim for relief, a money claim, exceeds the monetary jurisdiction of the New South Wales Civil and Administrative Tribunal – Home Building Act 1989 (NSW), ss 48A, 48K, 48L, 48MA, 48O CIVIL PROCEDURE – exercise of power to make directions for parties to take specified steps and the time for such steps to be completed by – directions for further reports on issues concerning rectification costs
CORPORATIONS – Capital raising – Information memorandum and other documents issued to plaintiff – Relied upon by plaintiff to purchase shares – Alleged misleading or deceptive conduct s 12DA ASIC Act / s 1041H Corporations Act – Found to be misleading or deceptive conduct engaged in by the corporation and its directors – What is level of conduct by directors or officers to justify finding of engagement by officer of corporation so as to find primary liability for contravention of the misleading or deceptive conduct provisions
TORTS – negligence – fall of six years old plaintiff from three metres high diving board platform onto surrounding concrete – precise circumstances of fall – whether preventative measures should reasonably have been taken by defendant and/or cross-defendant – cause of fall – reliability of witnesses – precise injury caused – extent of disabilities due to accident - appropriate damages to be awarded – legal status of persons contracting to manage pool with the cross-defendant LIMITATION OF ACTIONS – torts – negligence – personal injury – discoverability - tutor initially acting for plaintiff EMPLOYEE – whether person was an employee or independent contractor and consequences of status LEASE – construction of lease – applicable contractual principles - whether indemnity and insuring obligation placed on cross-defendant by lease
Judgment of
Dicker SC DCJ at Albury (20-23 May 2023) and Sydney (14-16 October 2024; 6-8 November 2024; 27-28 November 2024); 16 December 2024 (plaintiff’s written submissions in chief); 17 January 2025 (defendant’s written submissions); 10 February 2025 (cross-defendant’s written submissions); 28 February 2025 (plaintiff’s reply submissions)
COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company COSTS — Security for costs — Quantum and form COSTS — Security for costs — Relevant factors — Other factors
CRIME – sentence – alleged plea traversal said to be a Machiavellian attempt to manipulate the facts for sentence PRACTICE AND PROCEDURE – adjournment and Mosely stay – Crown fault conceded – not need abuse of process - ultimately a test of unfairness PRACTICE AND PROCEDURE – Crown granted indulgence on condition of Mosely stay – it does not lie in the teeth of the Crown to then seek to overcome the effect of a Mosely stay by charging a different offence COSTS – assessment by Court of Mosely stay costs – appropriate matter for senior counsel
CIVIL PROCEDURE — Pleadings — Amendment – application to amend Statement of Claim – proposed joinder of additional defendant where claim may be statute barred
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — Production/Dissemination/Possession SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Recognisance SENTENCING — Relevant factors on sentence — Deterrence — Establishing relevant matters — Factual basis for sentence — s 16BA schedule offences — General principles — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Extra curial punishment — Health issues
PRACTICE AND PROCEDURE – pleadings – whether Statement of Claim should be struck out because of alleged non-compliance with s.318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)
CRIME – SENTENCE – Multiple offences – Major offence: commit indictable offence in a dwelling house and break out: Crimes Act 1900 s109(2). Long history of drug addiction, flowing from self-treatment following abuse when a child – Offender also having a “life crisis” at time of offending, following breakdown of a relationship.
CRIMINAL LAW – sentencing – firearms offences – significance of good character – whether it is material that late plea of guilty delayed because of earlier legal advice
CRIMINAL LAW – Sentence – Postal worker - Significant breach of trust – Need for general deterrence - Dishonest misappropriation – Proceeds of crime – Possess border controlled drug –– Money laundering - Previous good character – Exaggerated claim of hardship to others.
COSTS – application for indemnity costs for the whole of the proceedings - departing from the general rule that costs follow the event - conduct of the parties - whether the second defendant/cross-claimant's fraud justifies the award of indemnity costs for the whole of the proceedings
SENTENCING — Sentencing procedure — Findings of fact after jury trial — Offender convicted of 17 of the 29 counts at trial. CRIME — 17 counts of domestic violence offences — Sexual assault — Common assault — Assault occasioning —Intimidation. SENTENCING — Sentencing procedure — Continued denial of all offending — No remorse — Cannot find good prospects of rehabilitation. SENTENCING — Sentencing procedure — Impact of totality when offending occurred over a period of 20 years across two relationships. SENTENCING — Standard non-parole period for aggravated sexual assault applicable for mid-range offending.
COSTS – application for gross sum costs orders – no issue of principle – INJUNCTIONS – observations on status of injunctive orders after proceedings concluded
CRIMES - SENTENCE - providing personal identification information with the intention it would be used to commit, or facilitating the commission of, the offence of obtaining a financial advantage from a government entity by deception - assisting the commission of the offence of, by a deception, dishonestly obtaining a financial advantage from Services Australia by supplying personal identification information - assisting the commission of the offence of receiving money reasonably suspected of being proceeds of crime - misconduct in a public office.
CIVIL PROCEDURE – interlocutory applications by defendants to strike out and dismiss proceedings – whether proceedings disclose a reasonable cause of action – whether proceedings are clearly statute-barred – whether proceedings are an abuse of process – whether plaintiff attempting to relitigate or circumvent prior determinations – grant of limited leave to replead
CRIMINAL LAW – sentencing – drug offences – manufacturing and supply of methylamphetamine in amounts greater than the large commercial quantity for that drug – additional offences of possession of precursors – sentencing of co-offenders – parity principle – [redacted]
CRIMINAL LAW – appeals and reviews – convictions of domestic violence offences in the Local Court – whether Mahmood directions should have been made – whether Liberato directions misapplied – significance of absence of Markuleski direction CRIMINAL LAW – denial of procedural fairness – whether, for assault charge, prosecutor departed from its case – whether, for intimidation charge, it was unfair for Magistrate to convict appellant on the basis that on his version of conduct, he engaged in “intimidating” conduct STATUTORY INTEPRETATION – intimidation offence – construction of physical element of offence, being ‘intimidating’ conduct – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 7(1)(c)(iv) whether mental element satisfied to requisite standard – proof of ‘knowledge’ – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
CRIMES – Aggravated Sexual Intercourse Without Consent – Assault Occasioning Actual Bodily Harm - Common assault – domestic violence related – Pervert the Course of Justice - Use Offensive Weapon to Commit Indictable Offence SENTENCE – plea of guilty - form 1 offences – cognitive impairment – causal connection - subject to the ICO at the time of the offending – likely to reoffend
CRIMINAL PROCEDURE – Suppression and non-publication orders – application by offender to anonymise published sentence remarks – submission that publication of identity may create risk of suicidal ideation – opposed by Crown - “calculus of risk” approach – medication and observation in custody, psychological report sent to Department of Corrective Services
Sentence – Aggravated Break Enter and Commit Serious Indictable Offence – Steal Firearms – Use Offensive Weapon to Avoid Apprehension – issue of seriousness of s 33B charge – Whether “Bugmy” enlivened – totality – commencement date of sentence
CRIME — Child sex offences — Intentionally sexually touch child <10 — Intentionally carry out sexual act with child <10 — Intentionally incite child <10 to do sexual act to them SENTENCING — Aggravating factors — Breach of trust — Father offends against daughter — Age of child SENTENCING — Mitigating factors — Prior good character — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability Multiple offences — Totality — Objective seriousness SENTENCING — Sentencing procedure — Agreed facts — No traversal of pleas of guilty — Instinctive synthesis — Rejection of offender’s assertion about his motive — Psychological reports SENTENCING — Subjective considerations on sentence —Personal history — Mental health disorders
CIVIL – COSTS – APPLICATION FOR INDEMNITY COSTS – COSTS ON THE ORDINARY BASIS – Judgment was $966 less than the Plaintiff’s offer of compromise – No principle of propinquity.
TORTS – NEGLIGENCE – Fall in the auditorium of a playhouse during a band performance when house lights were turned off – Whether stairs adequately illuminated.
CIVIL PROCEDURE – Application to dismiss proceedings in whole UCPR 13.4 and 14.28 – Argument that contract sued upon had been mutually abandoned and replaced by a different contract – Not manifestly clear this had occurred – Plaintiff’s case arguable – Application to strike out collateral contract claim against 2D – Whether claim sufficiently pleaded – Whether claim arguable. SECURITY FOR COSTS – Order made that would not stifle proceedings.
CRIME – SENTENCE 1. Manslaughter by excessive self defence. 2. Assault occasioning actual bodily harm prior to death. 3. Accessory after the fact to manslaughter. GUILTY PLEA DISCOUNTS – Where all 3 offenders originally charged with murder, then manslaughter – Only one offender guilty of manslaughter – Operation of EARLY GUILTY PLEA scheme – 25% discount allowed to each offender – Belated acceptance by Crown of principal offender’s plea of guilty.
CRIME – prosecution – work health and safety – definition of person conducting a business or undertaking (PCBU) – risk of death or serious injury – injury to worker EVIDENCE – admissions – criminal proceedings - agents and employees – reliability WORK HEALTH AND SAFETY – fall from height – likelihood of risk occurring – risk of workers falling from a height - category 1 offences – recklessness – gross negligence – category 2 offences – strict liability – breach of s 19(1) and s 20 duty – duty owed by a worker s 28(b) – breach of s 28(b) duty – causation of exposure to risk of death or serious injury PARTNERSHIPS AND JOINT VENTURES – limited partnership – contract of partnership – liability of limited partner for criminal conduct of general partner – meaning of take part in business of the partnership
CRIME — Public justice offences — Threatening or intimidating victims or witnesses CRIME — Property offences — Destroying or damaging property — Aid and abet SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment — Start date SENTENCING — Relevant factors on sentence — Form 1 offences — Maximum penalty — Moral culpability — Unsworn evidence in reports going to objective facts cannot be accepted — Objective seriousness — Deterrence — Specific — General — Rehabilitation must be fostered despite entrenched recidivism — Community Protection SENTENCING — Subjective considerations on sentence — Assessing reports where the offender’s history is uncontroversial — Professional opinions that do not rely on unsworn assertions as to motive can be accepted — Mental illness and multiple mental disorders — Drug addiction — Childhood neglect — Sexual abuse when a child — Impact of custody on non-association prisoner