The Criminal Law NSW Noticeboard is your one-stop-shop for criminal law news as it occurs. With rapid updating by District Court Judge, Martin Blackmore, the Noticeboard keeps you appraised of all of the latest legislative and case developments related to the practice of criminal in NSW. For a more detailed look into these and other criminal law matters, Criminal Law NSW, the authority on criminal law in NSW for almost 100 years, is available for subscription online, in looseleaf or on ProView eSub.

April 2014

Recent Cases

• Sentencing orders and mental health – Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15
• Physical coercion within jury – a miscarriage of justice? – Smith v Western Australia (2014) 88 ALJR 384; [2014] HCA 3
• Submissions as to "available range" of sentences – Barbaro v The Queen (2014) 88 ALJR 372; [2014] HCA 2
• Defence of self-defence and directions to jury – Flanagan v The Queen [2013] NSWCCA 320
• Nature of required consent – Reeves v The Queen (2013) 88 ALJR 215; [2013] HCA 57
• What is the test for offensive conduct? – New South Wales v Beck [2013] NSWCA 437
• Availability of relief in nature of prerogative writs – Jenkins v Director of Public Prosecutions [2013] NSWCA 406
• Unreasonable or insupportable verdict with regard to evidence – BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48
• Petition for pardon and inquiry after conviction – Sinkovich v Attorney General (NSW) [2013] NSWCA 383
• Powers and duties of prosecution – calling of witness and presenting evidence – Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34; [2013] HCA 42
• Statutory authority to call witnesses – Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34; [2013] HCA 42
• Compulsory examination by court and questioning touching subject of pending criminal charges – Lee v New South Wales Crime Commission (2013) 87 ALJR 1082; [2013] HCA 39
• Social deprivation and high incarceration rates – relevant factors when sentencing Aboriginal offenders? – Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37
• Will recidivism diminish the mitigating effect of a deprived background? – Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37
• Systemic social deprivation and the sentencing of Aboriginal offenders – Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38
• Pre-conditions of exercise of power of arrest – Konneh v New South Wales (No 3) [2013] NSWSC 1424
• Fraud where mistake raised as issue by accused – Giourtalis v The Queen [2013] NSWCCA 216
• Scope of "mitigating circumstance" – Re Sinkovich [2013] NSWSC 1342
• Unanimous and majority verdicts – Hunt v The Queen (2011) 81 NSWLR 181; [2011] NSWCCA 152
• Providing for criminality in sentencing for Form 1 offences – Abbas v The Queen [2013] NSWCCA 115

Recent Legislation

• Heavy Vehicle (Adoption of National Law) Act 2013
• Jury Amendment Act 2010
• Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2004
• Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013
• Mental Health (Forensic Provisions) Amendment Act 2013
• Crimes Legislation Amendment Act 2013
• Firearms and Criminal Groups Legislation Amendment Act 2013
• Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013

RECENT CASES

Updated 14 April 2014

Sentencing orders and mental health

Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15 – 13 February 2014 Court of Appeal – Bathurst CJ, Beazley P, Basten, Macfarlan JJA, Simpson J

Sentence – Sentencing orders – Custodial orders – Mental health, hospital security orders, etc – Generally – Limiting term set – Court's discretion to set mentally ill person at large

Issues: Was the trial judge right to have released the mentally ill person?

Held: The Director's construction of the Mental Health (Forensic Provisions) Act had to be accepted. The scheme of the Mental Health (Forensic Provisions) Act is entirely consistent with the proposition that once a limiting term has been fixed and a person has been found to be suffering from a mental illness or from a mental condition, an order should be made by the court that the person be detained pursuant to s 27. It is inconsistent with the legislative scheme that the court can simply release a person unconditionally (or even conditionally) once that stage has been reached.

Physical coercion within jury – a miscarriage of justice?

Smith v Western Australia (2014) 88 ALJR 384; [2014] HCA 3 – 12 February 2014 High Court – French CJ, Crennan, Kiefel, Gageler, Keane JJ

Particular grounds of appeal – Irregularities in relation to jury – Other cases – Physical coercion within jury – Evidence of coercion discovered following conviction of appellant – Reasonable suspicion as to failure of juror to discharge duty – Evidence capable of illustrating miscarriage of justice

Issues: Were the circumstances capable of establishing a miscarriage of justice?

Held: (allowing the appeal)

1. Where there is an allegation by a juror capable of belief that an incident has occurred which could be regarded as unlawful intimidation, a court of appeal is warranted in entertaining that allegation in considering whether a miscarriage of justice has occurred.
2. In determining whether a miscarriage of justice has occurred, the court should consider whether there exists a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that a juror has not discharged his task. If there is such a suspicion, the appeal should be allowed unless other evidence is capable of putting the verdict of the jury beyond question.
3. In the present matter, the juror's note was capable of giving rise to a reasonable suspicion on the part of a fair-minded and informed member of the public that a juror had not discharged their task as a result of unlawful coercion. The note was therefore capable of establishing a miscarriage of justice if an inquiry into the matter was unable to dispel the shadow of injustice cast upon the verdict. The matter should be remitted to the Court of Appeal for redetermination of the appeal.

Submissions as to "available range" of sentences

Barbaro v The Queen (2014) 88 ALJR 372; [2014] HCA 2 – 12 February 2014 High Court – French CJ, Hayne, Kiefel, Bell, Gageler JJ

Sentence – Sentencing procedure – Role of parties – Prosecutor – Submissions as to "available range" of sentences – Whether relevant consideration informing exercise of discretion – Corresponding role of sentencing judge

Issues: Was the sentencing hearing unfair?

Facts: The applicants pleaded guilty to several very serious drug offences following plea agreements based on the prosecution's view of the available sentencing range. The sentencing judge indicated at the outset that she would not seek, nor would she receive, any submission in respect of the sentencing range and proceeded to impose head sentences of life imprisonment and 26 years respectively. In seeking special leave to appeal to the High Court of Australia, the applicants argued that the sentencing process was unfair and that the sentencing judge had failed to take a relevant consideration, namely the available range, into account.

Held: (granting special leave but dismissing the appeals)

1. (by French CJ, Hayne, Kiefel and Bell JJ) A prosecutor's conclusion about the bounds of an available range of sentences is a statement of opinion, not a submission of law. It therefore follows that a sentencing judge need not and should not take it into account in fixing the sentence to be imposed.
2. (by Gageler J contra) A submission as to an available range of sentences is a submission of law, but where made, it has no greater or lesser status than any other submission of law. The sentencing court is not bound to accept it and may or may not in the event be assisted by it. In the present case the submission would have been wrong in law and one which the sentencing judge would have been bound to reject.
3. (by French CJ, Hayne, Kiefel and Bell JJ) To the extent that R v MacNeil-Brown (2008) 20 VR 677 stands as authority supporting the practice of prosecuting counsel providing a submission about the bounds of the available range of sentences, the decision should be overruled. The practice is wrong in principle and should cease: it is for the sentencing judge alone to decide what sentence will be imposed; it is not the role of the prosecution to act as a "surrogate judge".
4. (by the court) The applicants were not denied procedural fairness because the sentencing judge would not receive statements of what the prosecution considered to be the bounds of available sentencing ranges. Not receiving such statements was not a failure to take account of some material consideration.

Defence of self-defence and directions to jury

Flanagan v The Queen [2013] NSWCCA 320 – 20 December 2013 Court of Criminal Appeal – Beazley P, Fullerton, Campbell JJ

Criminal liability and capacity – Defence matters – Defence of persons or property – Directions to jury – Nature of directions – Whether direct evidence of need for self defence required

Issues: Discussion of the directions required in relation to the defence of self-defence.

Held:

1. Where self defence is left for the jury's consideration there are three components which must be the subject of direction by a trial judge; a judge is only obliged to leave the issue for the jury if there is a sufficient evidential basis for the first two elements, namely that the accused believed the conduct was necessary to defend himself or another person and that the accused carried out the conduct for that purpose.
2. The third component, that the conduct be a reasonable response in the circumstances as perceived by the accused, only fell to be considered if the jury was satisfied that there was a reasonable possibility that the conduct was carried out defensively.
3. The question whether the response was reasonable is determined by an objective assessment of the proportionality of the conduct that is relied upon as the defensive response of Crimes Act 1900 (NSW) s 418(2) does not require an accused to give direct evidence of belief that it was necessary in the particular circumstances to act defensively if there is a basis for that belief from other evidence or as a matter of inference from that evidence.

Nature of required consent

Reeves v The Queen (2013) 88 ALJR 215; [2013] HCA 57 – 18 December 2013 High Court – French CJ, Crennan, Bell, Gageler, Keane JJ

Assault – Consent – Medical procedures – Nature of required consent – Advice in broad terms of nature of procedure – Removal of effectively whole of external genitalia of female patient – Consent to removal of less tissue

Issues: Was there a substantial miscarriage of justice?

Facts: The applicant, a gynaecologist, was convicted of maliciously inflicting grievous bodily harm with intent, contrary to the Crimes Act 1900 (NSW), s 33, after he surgically removed the complainant's entire vulva, including her labia and clitoris. The complainant's evidence was that she had consented to the removal of a small flap of skin containing a pre-cancerous lesion on her left labia and not to the removal of her entire vulva. The Court of Criminal Appeal found that the trial judge had misdirected the jury by directing in terms of "informed consent", but applied the proviso in the Criminal Appeal Act 1912 (NSW), s 6(1), to dismiss the appeal notwithstanding that error. On appeal to the High Court of Australia, the applicant contended that the Court of Criminal Appeal had itself applied an incorrect test of liability and that it had erred in applying the proviso.

Held: (dismissing the appeal against conviction)

1. A medical practitioner is not required to explain the possible major consequences of a procedure and any alternative treatments before the patient's consent will afford the practitioner lawful cause or excuse for performing the procedure. It is sufficient that the patient consents to the procedure having been advised in broad terms of its nature. A failure to explain the possible major consequences or any alternative treatments might be a breach of the practitioner's common law duty of care, but it does not vitiate the consent to the surgery.
2. The trial judge erred in directing the jury in terms of "informed consent". There was a risk that the jury might reason to guilt even if it considered that it was reasonably possible that the complainant understood in broad terms the nature of the operation: the jury might find that the complainant had not given "informed consent", and convict, because the applicant had not explained the possible major consequences of the surgery or any alternative treatments to her.
3. In the context of this trial, the Court of Criminal Appeal did not apply a more demanding test by asking whether the complainant had been informed of the "nature and extent of the procedure" rather than whether she had been informed "in broad terms of the nature of the procedure". No meaningful distinction could be drawn between asking if the prosecution had proved that the complainant was informed in broad terms of the nature of the procedure (being the removal of her vulva, including the labia and clitoris) and asking if she was informed of the nature and extent of the procedure.
4. In the context of this trial, the phrase "informed consent" and the reference to possible major consequences and alternative treatments did not distract the jury from determining the one issue presented with respect to the complainant's consent (whether the prosecution had excluded beyond reasonable doubt that she had been informed that the surgery involved the removal of her vulva, including her labia and clitoris). The misdirection did not occasion a substantial miscarriage of justice.

What is the test for offensive conduct?

New South Wales v Beck [2013] NSWCA 437 – 13 December 2013 Court of Appeal – Beazley P, Barrett, Ward JJA

Public place, street or thoroughfare and place of public resort – Test for offensive conduct – Urination in public street

Issues: What is the test for offensive conduct?

Held:

1. In determining whether an offence of offensive conduct contrary to the Summary Offences Act 1988 (NSW), s 4, has been committed where there was no member of the public present, the relevant question is whether if there had been an ordinary reasonable person in the street at the relevant time (the hypothetical ordinary reasonable person), that person could have seen and been offended by the relevant conduct.
2. In the instant case, the judge below had erred in incorrectly focussing on whether there had been anyone physically present in the street at the time that the respondent had urinated behind a car in a public street who could reasonably have been offended at that conduct. It mattered not, on the respondent's case, that he had concealed his penis while urinating; the hypothetical ordinary reasonable person could have been offended by the act of urination in the street.

Availability of relief in nature of prerogative writs

Jenkins v Director of Public Prosecutions [2013] NSWCA 406 – 3 December 2013 Court of Appeal – Hoeben, Gleeson JJA, Simpson J

Juries – Separation – During deliberations – Separation without order of court – Consequences of irregularity – Availability of relief in nature of prerogative writs

Issues: Should relief in the nature of prerogative relief be granted?

Facts: The applicant sought relief in the nature of prerogative relief under the Supreme Court Act 1970 (NSW), s 69, with respect to the refusal of the trial judge to discharge the jury on the ground that separation of the jury occurred, without an order under the Jury Act 1977 (NSW), s 54(1)(b), while the jury was deliberating following a trial of the applicant on an indictment. The jury had separated on the afternoon of the first day of deliberations after being allowed to leave the courthouse by a court sheriff who had assumed that an order had been made that the jury could separate.

Held: (dismissing the application)

1. The jury's separation without an express or implied order under s 54(1)(b) was an irregularity in the trial. The irregularity having occurred, the question to be determined on the discharge application was whether it was such that it would affect the jury's deliberations so as to result in a mistrial. The District Court undoubtedly had jurisdiction to determine that application. That jurisdiction was not withdrawn by any non-compliance with a procedural requirement or condition relating to jury separation under s 54(1)(b). Accordingly, the refusal decision of the trial judge was made within jurisdiction.
2. Having regard to the language of s 54(1)(b) and the scope and object of the Act as a whole, it was not a purpose of the Act that an act done in breach of s 54(1)(b) should be invalid. The consequences of noncompliance not being specified in s 54 or elsewhere in the Act, the matter of non-compliance was left to the discretionary decision of the trial judge whether to discharge the jury. The mere fact of non-compliance with s 54(1)(b) did not invalidate the verdict. The jury did not cease to be a jury merely because of the irregularity. Discussion of the legislative purpose of the Act and s 54(1)(b).
3. The mere fact of an irregularity having occurred in the separation of the jury did not result in a fundamental defect in the trial. Where an irregularity has occurred, the court should inquire into the extent and consequences of the irregularity upon the criminal trial to determine whether the particular irregularity invalidated, or would invalidate, a verdict. In each case, whether there has been a material irregularity and departure from the procedure for jury separation while the jury is deliberating, such that there would be a miscarriage of justice, will depend on the nature and consequences for the fairness of the trial of the noncompliance with the procedural requirement or condition in s 54(1)(b). In this case, an irregularity having occurred, the trial judge was satisfied, after hearing an application for discharge of the jury, that it would not affect the verdicts. There was no complaint in these proceedings that the trial judge's exercise of discretion miscarried in any way.
4. Moreover, even if the trial judge's direction to the jury to continue with its deliberations and the convictions against the appellant were infected with jurisdictional error, relief should be refused on a discretionary basis. The applicant had a statutory right of appeal against his conviction provided by the Criminal Appeal Act 1912 (NSW), s 5(1), and a remedy under s 6(1).
5. (by Hoeben JA) When the jury's verdict of guilty was returned, the "direction" of the trial judge merged with the conviction. It was therefore necessary for the applicant to set aside the conviction before any of the orders sought by him could be made. This was a further reason why the applicant's summons should be dismissed.

Unreasonable or insupportable verdict with regard to evidence

BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48 – 27 November 2013 High Court – Hayne, Crennan, Kiefel, Bell, Keane JJ

Verdict unreasonable or insupportable having regard to evidence – Other matters – Duty of appellate court – Duty to make own assessment of evidence – Sufficiency of assessment of evidence and reasons – Indecent dealing with child under 12 years – Consideration of inconsistencies in child's evidence

Issues: Was the verdict unreasonable or insupportable?

Facts: The appellant was convicted of two counts of unlawfully and indecently dealing with a child under 12 years who was for the time being under his care. He unsuccessfully appealed against his convictions to the Queensland Court of Appeal on the ground that the verdicts were unsafe and unsatisfactory. On appeal to the High Court, the appellant contended that the Court of Appeal failed to assess the evidence and to give adequate reasons for its conclusion that the verdicts were supported by the evidence; and that the Court of Appeal erred in failing to conclude that the verdicts were unreasonable and unsupported by the evidence.

Held:

1. In determining a ground of appeal which challenges the sufficiency of the evidence to support a conviction, the appellate court is required to disclose, in its reasons, its assessment of the capacity of the evidence to support the verdict. In this case, the Court of Appeal's observation that the jury was entitled to accept the complainant's evidence and act upon it was insufficient to discharge that obligation.
2. It was not in the interests of justice to remit the proceedings to the Court of Appeal for it to determine afresh the challenge to the reasonableness of the verdicts. This was a short trial that lasted not more than two days and in which the evidence was in short compass. The Court was in a position to determine that challenge itself.
3. On a review of the whole of the evidence, it could not be said that the verdicts were unreasonable or not supportable by the evidence. None of the appellant's criticisms of the evidence led to a conclusion that it was not open to the jury to convict. The inconsistencies in the complainant's accounts were to be considered in light of her age at the date of the offences, the interval between the offending and her first interview with police and the further interval between the interview and her evidence. On the essential features of her account of the offences, the complainant was consistent.

Petition for pardon and inquiry after conviction

Sinkovich v Attorney General (NSW) [2013] NSWCA 383 – 18 November 2013 Court of Appeal – Bathurst CJ, Beazley P, Basten JA, Price, Beech-Jones JJ

Pardon, commutation of penalty, reference on petition for pardon and inquiry after conviction – Inquiry after conviction – Appeal – Refusal to order inquiry

Issues: Was there an error in sentencing the applicant?

Facts: In imposing sentence on the applicant for drug offences, the trial judge followed the guidance of the Court of Criminal Appeal in R v Way [2004] NSWCCA 131. However, six months after the Court of Criminal Appeal dismissed the applicant's appeal, the High Court delivered judgment in Muldrock v The Queen [2011] HCA 39, holding that the guidance given in Way was erroneous. The applicant made an application for an inquiry into his sentence pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 78. The primary judge refused the application.

Held: (making a declaration) There was an error of law on the part of the sentencing judge and, on appeal, the Court of Criminal Appeal, which may have caused a sentence to be imposed of greater severity than would otherwise have been the case. This constituted an aspect of the proceedings giving rise to the sentence which might form the basis of a doubt or question as to circumstances having the potential to mitigate the sentence imposed, for the purpose of considering an application for an inquiry under s 78.

Powers and duties of prosecution – calling of witness and presenting evidence

Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34; [2013] HCA 42 – 30 October 2013 High Court – French CJ, Kiefel, Bell JJ

Powers and duties of prosecution as to calling of witness and presenting evidence – Duty to call witnesses – Police officers – Corroborative evidence

Issues: Did the prosecution's failure to call additional police witnesses work a miscarriage of justice?

Facts: The appellants were convicted in the Supreme Court of Nauru on a charge of rape. The trial was heard by judge alone. Two police officers attended the crime scene following an early complaint. Only one officer was called to give evidence for the prosecution; a statement prepared by another officer was disclosed to the defence but the officer himself was not available to be called at the trial. The appellants argued that they were denied the right to a fair trial because they were deprived of the opportunity to cross-examine the second officer on inconsistencies between his statement and the evidence given by the principal officer. They advanced a similar argument in connection with the prosecution's failure to call another officer involved in the subsequent search of their property.

Held: (dismissing the appeal) (by the court)

1. The objective of a fair trial requires the prosecutor to call all available witnesses unless there is some good reason not to do so. Mere apprehension that the testimony of a particular witness might be inconsistent with that of another prosecution witness is not a good reason for not calling that witness.
2. The decision whether or not to call a particular witness is a matter of discretion for the prosecutor. A decision not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.
3. The central issue in the case was whether the conduct alleged by the complainant happened at all. The only direct evidence on that issue came from the complainant herself: the first appellant had denied the incident. The trial judge accepted the evidence of the complainant, corroborated by both evidence of her distress given by the sole police witness and a finding that the appellants lied when asked by police about the complainant's presence at their house. The failure to call additional police witnesses did not give rise to a miscarriage of justice in those circumstances.

Statutory authority to call witnesses

Diehm v Director of Public Prosecutions (Nauru) (2013) 88 ALJR 34; [2013] HCA 42 – 30 October 2013 High Court – French CJ, Kiefel, Bell JJ

Witnesses – Powers of judge – Power to call witnesses – Nauru – Statutory authority to call witnesses – In what circumstances exercised

Issues: Should the trial judge have called a prosecution witness of his own volition?

Facts: It was anticipated that two police witnesses would be called, but in the event the prosecution called only one. The second witness, whose evidence was expected to be generally corroborative, was unable to appear at the trial. An issue arose as to whether the trial judge should have called the witness of his own volition. The power to do so was explicitly authorised by the Criminal Procedure Act 1972 (Nauru), s 100.

Held: (by the court)

1. As a general rule, a trial judge should not call a person to give evidence, save in the most exceptional circumstances. This principle is qualified for Nauru by the Criminal Procedure Act 1972, s 100, which authorises the court to call a witness and requires it to do so when it appears "essential to the just decision of the case".
2. There is, however, no reason to suppose that the discretionary element of s 100(1) should not be informed by a principle of restraint, having regard to the risks that necessarily attach to a trial judge calling a witness. The obligatory element of the section is not enlivened unless the calling of the witness appears to the court to be essential to the just decision of the case.
3. The failure to call the second police officer was not shown to have given rise to a miscarriage of justice. That being so, it could not be said that his evidence was essential to the just decision of the case.

Compulsory examination by court and questioning touching subject of pending criminal charges

Lee v New South Wales Crime Commission (2013) 87 ALJR 1082; [2013] HCA 39 – 9 October 2013 High Court – French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ

Confiscation of proceeds of crime and related matters – Forfeiture or confiscation – Procedure – Investigation and examination – New South Wales – Compulsory examination by court – Questioning touching subject of pending criminal charges

Issues: Can an order be made for the examination of a person touching the subject matter of criminal charges pending against that person?

Facts: The Supreme Court of New South Wales refused to make the compulsory examination order which the respondent Commission applied for under the Criminal Assets Recovery Act 1990 (NSW), s 31D(1)(a), on the basis that such examination would expose the appellants to questioning about matters relevant to criminal charges that had already been instigated against them. The Court of Appeal allowed an appeal, ordering that both appellants be examined on oath before a registrar. The central issue in the appeal to the High Court was whether the Act clearly authorises compulsory examination about matters which were the subject of the criminal charges against the appellants.

Held: (dismissing the appeal; by majority)

1. (by French CJ) The Act impinges upon the accusatorial system of criminal justice and, in particular, the privilege against self-incrimination and the right of a person to remain silent when accused of the commission of a crime. As a matter of implication, the Act authorises an order for the making of an examination of a person on matters the subject of criminal charges pending against that person.
2. (by Crennan J) The court, when controlling an examination under the Act, will not permit an examiner either to abuse its processes or to occasion a real risk of interference with pending criminal proceedings (short of ordering that the expressly abrogated privilege be restored). The legislative scheme for compulsory examination may operate in respect of persons charged with an offence, notwithstanding overlap between the subject matter of the compulsory examination and the subject matter of the pending criminal proceedings.
3. (by Gageler and Keane JJ) The court can order the examination of a person against whom criminal proceedings have been commenced but not completed where the subject-matter of the examination will overlap with the subject-matter of those proceedings. The making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject matter of the examination will overlap with the subjectmatter of such criminal proceedings.
4. (by Kiefel J dissenting; Hayne J agreeing; Bell J agreeing) An intention to abrogate an examinee's privilege against self-incrimination, without more, does not evidence an intention that the Act is to apply to a person charged with a serious crime whose trial is pending or in progress. Section 31D(1)(a) cannot be taken to authorise an examination by compelling answers about an offence with which a person is charged: this would alter the fundamental principle that the prosecution must discharge the onus of proof and cannot compel the accused to give evidence for it.

Social deprivation and high incarceration rates – relevant factors when sentencing Aboriginal offenders?

Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37 – 2 October 2013 High Court – French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ

Sentence – Relevant factors – Nature and circumstances of offender – Aboriginality – Generally – New South Wales – Social deprivation and incarceration rates

Issues: Are social deprivation and high incarceration rates always relevant factors when sentencing Aboriginal offenders in New South Wales?

Held: (by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ; Gageler J not deciding)

1. The Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1) does not direct courts to give particular attention to the circumstances of Aboriginal offenders. There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that applicable to a non-Aboriginal offender.
2. There is also no warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice.
3. It is also antithetical to individualised justice to argue that courts should take judicial notice of a systemic background of deprivation with respect to Aboriginal offenders. In any case in which it is sought to rely on an offender's background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.

Will recidivism diminish the mitigating effect of a deprived background?

Bugmy v The Queen (2013) 87 ALJR 1022; [2013] HCA 37 – 2 October 2013 High Court – French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ

Other matters – Effect of deprived background – Sentencing of repeat violent offender – Whether mitigating factor diminishes over time

Issues: Will recidivism diminish the mitigating effect of a deprived background?

Held: (by French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ)

1. The effects of profound deprivation do not diminish over time and are to be given full weight in determining the appropriate sentence in every case. A background of profound deprivation may compromise a person's capacity to mature and learn from experience. It is a feature of the person's make-up and remains relevant to determination of an appropriate sentence notwithstanding that the person has a long history of offending.
2. However, this is not to suggest that an offender's deprived background has the same mitigatory relevance for all of the purposes of punishment. An offender's childhood exposure to extreme violence and alcohol abuse may explain a recourse to violence when frustrated, such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control a violent response to frustration may increase the importance of protecting the community from the offender.
3. (by Gageler J) The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment.

Systemic social deprivation and the sentencing of Aboriginal offenders

Munda v Western Australia (2013) 87 ALJR 1035; [2013] HCA 38 – 2 October 2013 High Court – French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ

Sentence – Relevant factors – Nature and circumstances of offender – Aboriginality – Generally – Western Australia – Effect of systemic social deprivation

Issues: Is systemic social deprivation a factor relevant to the sentencing of Aboriginal offenders?

Held:

1. The circumstance that the appellant was affected by an environment in which the abuse of alcohol was common must be taken into account in assessing his moral culpability, but that consideration was to be balanced with the seriousness of his offending. It is important to observe that indulging in drunken bouts of domestic violence is an example of very serious moral culpability.
2. It is contrary to the principle of individualised justice to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons is to deny Aboriginal people their full measure of human dignity. It is quite inconsistent with principle to act upon a kind of racial stereotyping that diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. It is also wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.
3. It may be argued that general deterrence has little rational claim on the sentencing discretion in relation to crimes that are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated as to make it unreasonable to expect the conduct of individuals in those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion; but the proper role of the criminal law is not limited to the utilitarian value of general deterrence.

Pre-conditions of exercise of power of arrest

Konneh v New South Wales (No 3) [2013] NSWSC 1424 – 27 September 2013 Supreme Court – Garling J

Bail – Breach of bail conditions – Power of arrest – Pre-conditions of exercise

Issues: Does a police officer have a right to arrest a person where the officer holds a reasonable belief that the person is subject to a grant of bail?

Facts: The plaintiff brought proceedings against the defendant for wrongful arrest after he was arrested and detained by a police officer who mistakenly believed that the plaintiff was subject to a bail undertaking. The defendant submitted that the reasonable belief held by the police officer that the plaintiff was subject to a bail undertaking provided a defence to the plaintiff's action.

Held:

1. It would be a significant abrogation of an individual's right to be at liberty if a police officer was entitled to arrest that individual on a mistaken belief that they were subject to a grant of bail. The phrase "where an officer believes on reasonable grounds" within the Bail Act 1978 (NSW), s 50(1), refers to the belief held by an officer that a bail undertaking has been breached, and not to the existence of the bail undertaking itself.
2. Accordingly, it is a pre-condition to the exercise of a police officer's power to arrest under s 50(1)(a) that the individual has actually been released on bail. Therefore, in the present case, it was not a defence to the plaintiff's claim for wrongful arrest that the police officer mistakenly believed that the plaintiff was subject to a bail undertaking.

Fraud where mistake raised as issue by accused

Giourtalis v The Queen [2013] NSWCCA 216 – 25 September 2013 Court of Criminal Appeal – Bathurst CJ, Hidden, Button JJ

Property offences – Other frauds and impositions – Fraud – Defrauding the Commonwealth – Generally – Intent to defraud – Directions – Where mistake raised as issue by accused

Issues: Was there a substantial miscarriage of justice?

Facts: The appellant was convicted of multiple counts of defrauding the Commonwealth and attempting to defraud the Commonwealth contrary to the Crimes Act 1914 (Cth), ss 7(1) and 29D, in relation to a number of false tax returns that he had prepared in his work as an accountant. In his defence at trial, he claimed that certain incorrect information that he had included in preparing a number of the returns was the result of an honest mistake. In her summing up, the trial judge gave directions in respect of honest and reasonable mistake, including a direction that the appellant bore the onus of proving the mistake on the balance of probabilities. The appellant appealed against his convictions for the relevant counts, claiming that the directions on mistake were erroneous.

Held: (dismissing the appeal)

1. The direction given by the trial judge was a serious misdirection. The issue of mistake went to the question of whether the appellant was acting dishonestly and with the intent to defraud, that is, to an element of the offence which the Crown had to prove beyond reasonable doubt. The issue of mistake having been raised, the Crown was required to negative that matter beyond reasonable doubt.
2. However, in all the circumstances of the case, there was no substantial miscarriage of justice. The erroneous direction did not stand alone; it had otherwise been made clear to the jury that, to convict the appellant, it had to be satisfied beyond reasonable doubt that his version of events could not be accepted; and the evidence established beyond reasonable doubt that the appellant was guilty of the offences charged.

Scope of "mitigating circumstance"

Re Sinkovich [2013] NSWSC 1342 – 17 September 2013 Supreme Court – Latham J

Pardon, commutation of penalty, reference on petition for pardon and inquiry after conviction – Inquiry after conviction – Scope of "mitigating circumstance"

Issues: Was a change in sentencing practice capable of amounting to a mitigating circumstance under the Crimes (Appeal and Review) Act 2001 (NSW), s 79?

Facts: In 2009, the applicant had been sentenced for the offence of knowingly taking part in the supply of methylamphetamine. In fixing the non-parole period, the sentencing judge applied the law as it then stood in light of R v Way (2004) 60 NSWLR 168; an appeal against sentence was subsequently dismissed by the Court of Criminal Appeal. Following that appeal, the High Court of Australia disapproved of Way in Muldrock v The Queen (2011) 244 CLR 120. In the instant application, the applicant maintained that the approach taken to the assessment of an appropriate sentence had been erroneous, notwithstanding compliance with authority as it existed at sentence and on appeal, and that it raised a doubt or a question as to a mitigating circumstance under the Crimes (Appeal and Review) Act 2001 (NSW), s 79, pursuant to which the instant court ought to conduct an inquiry into his sentence. The issue for the court was whether a change in the law could amount to a mitigating circumstance under s 79.

Held: The construction of "mitigating circumstances" in s 79(2) cannot be strained to accommodate errors of law: it was clear from the history of the provision, and from applications made to the instant court, that an inquiry invariably proceeded on the basis of fresh material, or additional evidence that cast the conviction, and/or the sentence, in a different light to that prevailing at first instance, or on appeal.

Unanimous and majority verdicts

Hunt v The Queen (2011) 81 NSWLR 181; [2011] NSWCCA 152 – 30 June 2011 Court of Criminal Appeal – Tobias AJA, Johnson, Hall JJ

Verdict – Unanimous and majority verdicts – Majority verdicts – Directions to jury – Time for making enquiry of jury

Issues: Was there a miscarriage of justice?

Held:

1. Where the jury indicates that it is deadlocked before the time has come to consider a majority verdict, it should always be encouraged to continue its deliberations and to strive for a unanimous verdict without being advised that the time for accepting a majority verdict is imminent, or that such a verdict may be taken after the expiry of a particular period of time.
2. An enquiry under the Jury Act 1977 (NSW), ss 55F(2)(b) or 56(2), into whether the jury is likely to reach a majority verdict should not be undertaken until the point has been reached at which a majority verdict is capable of being taken under s 55F.
3. The trial judge erred by explaining to the jury, apparently for the purposes of s 56(2), the majority verdict formula and enquiring of the foreperson as to whether a majority verdict was possible well before a majority verdict was available in law. This error was then compounded by the trial judge advising the jury as to the precise time when a majority verdict could be taken and inviting them to wait out the expiry of the minimum period of eight hours upon the implied assumption that no further deliberations would be undertaken and without consideration of whether eight hours of deliberation by the jury had occurred. These were clear failures to comply with the requirements of s 55F(2) and this resulted in a miscarriage of justice.

Providing for criminality in sentencing for Form 1 offences

Abbas v The Queen [2013] NSWCCA 115 – 22 May 2013 Court of Criminal Appeal – Bathurst CJ, Basten JA, Hoeben CJ at CL, Garling, Campbell JJ)

Sentence – Purpose of sentence – Retribution and denunciation – Retribution for criminality in Form 1 offences – Role in sentencing

Issues: Is it open to a court to provide in sentencing for the criminality in Form 1 offences?

Facts: In an appeal against sentences imposed for drug-related offences contrary to the Drug Misuse and Trafficking Act 1985 (NSW) s 25(2), a question for the Court of Appeal was whether a sentencing judge was entitled, as a matter of discretion, to provide for criminality in sentencing for the principal offences by virtue of Form 1 offences, under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 33(1). It was submitted that the sentencing judge had erred when taking into account the seriousness of the Form 1 offences by imposing in effect a penalty referable specifically to those offences, rather than taking them into account in determining the appropriate sentence for the principal offence.

Held:

1. A sentence can be increased to take into account an additional need for deterrence and retribution in respect of charged offences by virtue of taking into account Form 1 offences. Section 33(1) empowers a court to take further offences into account where the statutory preconditions are met; it was clear that that could lead to an increase in penalty up to the maximum penalty for the principal offence and the existence of those additional offences could demonstrate a greater need for personal deterrence and retribution in respect of the offence.
2. Whether to take into account Form 1 offences in sentencing is a matter of discretion.
3. In sentencing taking into account Form 1 offences, no analysis of each Form 1 offence is to be carried out for the purpose of sentencing for the principal offence as would occur if the offence was included on the indictment; such a top-down approach was expressly rejected in Attorney-General's Application under s 37 of Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518.
4. There could be cases in which it was not possible to properly take Form 1 offences into account by reference to the additional need for punishment and retribution in respect of the convicted offence. That will generally only occur in cases where the gravity of the Form 1 offence was far in excess of those for which an offender was being sentenced, or when the magnitude of the offences on the Form 1 made it impossible to take them into account in sentencing for the convicted offence. In these circumstances a court should decline to take the Form 1 offences into account.

RECENT LEGISLATION

Updated 14 April 2014

Heavy Vehicle (Adoption of National Law) Act 2013

The Heavy Vehicle National Law (NSW) is adopted for the purpose of a national scheme that regulates the use of heavy vehicle on roads. Many of the provisions contained in the National Law, including offences and those relating to driver fatigue, were previously found in Acts such as the Road Transport (General) Act 2005 (renamed the Road Transport (Vehicle and Driver Management) Act 2005) and in regulations including the Road Transport (Vehicle and Driver Management) Regulation 2005. The National Law contains numerous penalty provisions in relation to heavy vehicle operations such as standards and safety, permits, vehicle standard exemption conditions, mass and dimension and loading limits, speed, driver fatigue, Intelligent Access Program, enforcement, powers and duties of authorised officers, appeals and review, the National Heavy Vehicle Regulator and discrimination. The maximum penalties for offences range between $1,500 and $10,000.

Jury Amendment Act 2010

The Jury Act 1977 is amended to broaden the pool of eligible jurors to ensure the burden of jury duty is widely distributed and juries remain representative of society.

• Schedule 1 has been replaced to expand the categories of persons excluded from jury service, for example, those who have committed serious offences; those who are serving or who have served a sentence of imprisonment or a period of detention; those with access to information about inmates and other detainee.
• Schedule 2 now contains categories of persons with a right to claim an exemption from jury service, such as clergy, vowed members of any religious order, pharmacists, dentists, medical practitioners, emergency service works and certain other persons who have previously served or were prepared to serve as a juror.
• Section 14 is inserted to provide for the sheriff to exempt a person from jury service, whether or not on the request of the person, if the sheriff is of the opinion that there is good cause for the exemption.
• Section 14A sets out what generally constitutes "good cause", such as hardship, serious inconvenience, disability, conflict of interest or some other reason that would affect the person's ability to perform the functions of a juror.
• Section 69 is amended by increasing the penalties for unlawful dismissal of, or prejudices to, employees summoned for jury service: 200 penalty units if corporation or 50 penalty units and/or 12 months imprisonment if individual.
• Section 69A is inserted to prevent employers from requiring their employees to use leave if they are summoned for jury service or to work extra time to make up for work time lost attending jury service.

Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2004

The Crimes Act 1900 is amended by inserting ss 25A and 25B, creating offences of assault causing death (s 25A(1), maximum penalty, 20 years imprisonment; mandatory minimum and non-parole period of 8 years imprisonment), assault occasioning death where a person is aged 18 and above and intoxicated (s 25A(2), maximum penalty, 25 years imprisonment).  It is a defence for an offence under s 25A(2) if the intoxication of the accused was not self-induced or if the accused had a significant cognitive impairment at the time the offence was alleged to have been committed.

The Crimes (Sentencing Procedure) Act 1999 is amended by inserting a new s 21A(5AA) where, in determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

The Drug Misuse and Trafficking Act 1985 is amended by inserting a list of steroid type drugs in Sch 1 (prohibited plant or prohibited drug). For the purposes of s 25A(2) of the Crimes Act 1900, a drug includes a drug under the Drug Misuse and Trafficking Act 1985 and a poison, restricted substance or drug of addiction in the Poisons and Therapeutic Goods Act 1966 and includes steroids.

Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013

The Law Enforcement (Powers and Responsibilities) Act 2002 is amended by clarifying when police officers may exercise the power to arrest without a warrant: s 99.

• Section 99(1)(a) no longer limits the power to arrest a person without a warrant for an offence previously committed to serious indictable offences.
• Section 99(1)(b) is amended by adding reasons for such an arrest, including to stop the person fleeing from a police officer or from the location of the offence; to enable inquiries to be made to establish the person's identity; to obtain property in the possession of the person that is connected with the offence; to protect the safety or welfare of any person; the nature and seriousness of the offence.
• Section 99(2) is inserted to provide that a police officer may also arrest a person without a warrant if directed to do so by another police officer provided the latter may lawfully arrest without a warrant.
• Section 99(4) is inserted and provides that a person lawfully arrested under s 99 may be detained for the purpose of investigating whether they committed the offence, or for any other purpose authorised by Pt 9 (Investigations and questioning) of the Act.
• Section 105(3) is inserted to clarify that a police officer may discontinue an arrest at any time, despite the obligation under s 99(3) to take the person before an authorised officer to be dealt with according to law.

Mental Health (Forensic Provisions) Amendment Act 2013

• Section 76AA is inserted into the Mental Health (Forensic Provisions) Act 1990 and provides that at least 6 months before the expiry of a limiting term or extension order to which a forensic patient is subject, the Tribunal must inform the Ministers responsible for the Act of the date on which the limiting term (or if applicable extension order) is due to expire.
• Schedule 1 is inserted, setting out the process by which the Supreme Court can make an order for the extension of a person's status as a forensic patient. A forensic patient can be made the subject of an extension order if, and only if, the court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under s 53: cl 2(1).
• The application by a Minister for an extension order must be made 6 months before the expiration of the limiting term: cll 3 and 4.
• The court is to hold a preliminary hearing of the application: cll 6(4) and (5). Following that hearing if the court is satisfied the matters alleged in the supporting documents would, if proved, justify the making of an extension order, it must make orders appointing two professionals, being a qualified psychiatrist, a registered psychologist or medical practitioner, to conduct separate examinations of the forensic patient and furnish reports for the court.
• When the court determines the application, it is either to make an order extending the person's status as a forensic patient or to dismiss the application. The term of an extension order must not exceed 5 years: cl 8.

Crimes Legislation Amendment Act 2013

The Bail Act 1978 is amended by replacing s 44(2). It provides that a magistrate may review any decision made in relation to bail by the President of the Children's Court, exercising the jurisdiction of the Children's Court.

The Crimes (Forensic Procedures) Act 2000 is amended. Section 21(2) now provides that the legal representative and interview friend of a suspect who is subject to an order to carry out a non-intimate forensic procedure must be given the opportunity to speak to the senior police officer who made the order. Section 26(2)(d) is repealed, removing the requirement for an application for an order authorising the carrying out of a forensic procedure on a suspect to be made in the presence of the suspect. Section 30(1) is replaced and enables the magistrate to make an order authorising the carrying out of a forensic procedure on a suspect ex parte.

The Crimes (High Risk Offenders) Act 2006 is amended by inserting s 25(2A), enabling the Attorney-General to request a Court to provide information that relates to the behaviour or physical or mental condition of an offender.

The Criminal Procedure Act 1986 is amended by repealing s 294D(2A) and replacing s 294D(3), providing that the protections of Pt 5 Div 1 of the Act (Evidence in certain sexual offence proceedings) for a complainant to apply to "a sexual offence witness and a reference to a prescribed sexual offence, in relation to a sexual offence witness, includes a reference to an act referred to in subsection (2)(b)."

The Interpretation Act 1987 is amended by inserting s 21(3) which provides that, in any Act or instrument, a reference to an offence that is punishable by imprisonment for a specified term or more includes a reference to a common law offence and to an offence that is punishable by imprisonment for life.

Firearms and Criminal Groups Legislation Amendment Act 2013

The Firearms Act 1996 is amended by omitting "prohibited firearm or pistol" and replacing it with "pistol or prohibited firearm". This clarifies that the expression covers all pistols, not just prohibited pistols.

• Section 51CA is inserted to create an offence of attempt with respect to offences under the Act. Upon conviction, an offender is liable to the penalty for the offence attempted.
• Sections 50B(1) and 50B(2) create new offences of giving possession of a firearm or firearm part to an unauthorised person: maximum penalty, 14 years imprisonment if the firearm is a pistol or prohibited firearm, or the firearm part relates solely to any kind of pistol or prohibited firearm; 5 years imprisonment in any other case.
• Section 74 is replaced and provides that it is an offence for a person subject to a firearm prohibition order to acquire, possess or use a firearm (maximum penalty, 14 years imprisonment if the firearm is a pistol or prohibited firearm; 5 years imprisonment in any other case), acquire or possess a firearm part (maximum penalty, 14 years imprisonment), or acquire or possess ammunition (maximum penalty, 5 years imprisonment).

The Restricted Premises Act 1943 is amended to enable the Supreme or District Courts, in exercising existing powers to declare premises to be disorderly houses, to state that the declaration is made on the basis reputed criminals attend the premises, or control or manage the premises (a "reputed criminal declaration"): s 3(3).

Sections 8(2A) and 9(3) create new offences relating to reputed criminal declarations. It is an offence committed by owners and occupiers of declared premises if a reputed criminal attends the premises or has (or takes part or assists in) control or management of the premises: maximum penalty, 3 years imprisonment and/or 150 penalty units.

Crimes (Sentencing Procedure) Amendment (Standard Non-parole Periods) Act 2013

The Crimes (Sentencing Procedure) Act 1999 is amended by repealing certain notable provisions: ss 54A(2), 54B(2) and 54B(3), following the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120; 212 A Crim R 254; [2011] HCA 39.

• Section 54A(2) is replaced and provides that for the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the Table to Div 1A that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.
• Section 54B(2) has been replaced and provides "the standard non-parole period for an offence is a matter to be taken into account by a court determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender".
• Section 54B(3) provides that a court must make a record of its reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.
• Section 54B(4) provides the court is still to indicate the non-parole period it would have set for each standard non-parole period offence where an aggregate sentence is imposed.
• Where a court indicates under s 54B(4) that it would have set a non-parole period that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why and the factors taken into account: s 54B(5).
• Section 54B(6) provides that the requirement to give reasons for setting a non-parole period that is longer or shorter than the standard non-parole period does not require the court to "identify the extent to which the seriousness of the offence for which the non-parole period is set differs from that of an offence to which the standard non-parole period is referable."

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