PART A: CRIMINAL LAW IN NEW SOUTH WALES

Last Updated 1 September 2019

1/. From Arrest to Local Court

(a) Arrest and Following

Do I Have to Answer Police Questions

The general position is that you do not have to answer police questions. There are some important exceptions which are set out below. As a matter of common sense, if you are asked questions by police about a simple matter of which you are obviously innocent, it is probably a good idea to answer their questions. In other situations, speak to a lawyer first. In particular, if the police want to record an interview with you on tape or video, always say you want to speak to a lawyer first.

A police officer can request a person to provide his or her name and address if those details are uunknown to the police officer t and if the police officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged offence because the person was at or near the place where an alleged indictable offence occurred around the time when the offence occurred: s. 11 Law Enforcement (Powers and Responsibilities) Act (hereafter LEPRA). It is an offence to refuse to supply a name and address: s. 12 LEPRA. The penalty is 2 penalty units, or $220. It has been held that the police are entitled to demand the particulars of a suspect: DPP v Horwood [2009] NSWSC 1447.

Where a police officer reasonably suspects that a motor vehicle was or may have been used in the commission of an indictable offence, the police officer can ask the owner, driver or passenger of the vehicle to supply details of the driver and passengers in the vehicle at the time of the offence: s. 14 LEPRA. It is an offence to refuse to give an answer or to give a false name or address, carrying a penalty of $5500 or 12 months gaol: ss. 16-18 LEPRA.

Police can demand proof of identification: s. 19 LEPRA.

if police are entitled by law to require identification, they may require a person to remove a face covering for purposes of identification (s. 19A LEPRA). Failure to do so is an offence (s. 19B LEPRA).

Stop and Search.

The police have no power at common law to search someone prior to arrest: Mammone v Chaplin (1991) 54 A Crim R 163. However under s. 21 LEPRA the police may stop and search anyone whom they reasonably suspect has something stolen anything or otherwise unlawfully obtained or anything used in an indictable offence.

Being sniffed by a police drug dog is not a 'search': DPP v Darby [2002] NSWSC 1157

A 'reasonable suspicion' involves less than a belief but more than a mere possibility. There must be some factual basis for the suspicion; reasonable suspicion is not arbitrary. Hearsay material can be used as the basis for a reasonable suspicion: Rondo (2001) 126 A Crim R 562 .

A police officer has the power to stop and search a motor vehicle if he/she believes on reasonable grounds that the vehicle is being or may have been used in the commission of an indictable or firearms offence, or if the police officer believes on reasonable grounds that the vehicle contains drugs or anything used or intended to be used in the commission of such an offence, or if the police officer believes on reasonable grounds that there is a serious risk to public safety and the search might lessen that risk: s. 36 LEPRA.

De Facto Arrest and Lawful Arrest

There is a distinction between de facto arrest and legal arrest. De facto arrest is where the police deprive someone of their liberty, regardless of whether this is done lawfully. Lawful arrest is where is where a person is deprived of his/her liberty lawfully. Sometimes de facto and lawful arrest happen at the same time, sometimes they happen at different times, sometimes there is never a lawful arrest.

The distinction between de facto and lawful arrest can have practical consequences in reklatin to whether or not a resist arrest charge can be proved, whether an admission made after arrest is admissible, and whether or not an action in false arrest can be established.Somtimes even courts seem to be confused about this distinction.

De Facto Arrest.
A person is arrested when police deprive him of his liberty, regardless of the words used. A person is arrested when police make it plain to him that he is not free to leave if he chooses: Lavery (1978) 19 SASR 515, C (1997) 93 A Crim R 81. When a person is confronted at his home by armed police an arrest may occur unless police indicate that the person is free to leave: Trotter (1992) 60 A Crim R 1.

Requirements of a lawful arrest

Basten JA in State of NSW v Randall [2017] NSWCA 88 (dissenting but not on this point) said that the validity of an arrest without warrant depend upon three things (at para [10]):

• the police officer is satisfied that a person is committing or has committed an offence;
• the police officer is satisfied that it is necessary to arrest the person to stop the person committing the offence or another offence, to ensure that the person appears before the court in relation to that offence, or to protect the safety or welfare of any person (including the person arrested);
• the person arrested has been informed of the reason for the arrest.
  

Physical Aspect of Arrest.
Arrest involves either submission or actual touching of the accused: Thomson [1969] NZLR 513.

Reasonable Cause.
The arrester must have reasonable grounds to believe that the person has or is in the act of committing an offence: s. 99 LEPRA. Reasonable cause includes hearsay: Hussein v Chong Fook Kam [1969] 3 All ER 1282. The principles relating to 'reasonable grounds to arrest' have been summarised in Hyder v The Commonwealth [2012] NSWCA 336 esp at para [15].

Purpose of Arrest.
An arrest for the purpose of investigating whether or not the person has committed a crime, or obtaining more evidence, is an illegal arrest: Williams v The Queen (1986) 161 CLR 278, 66 ALR 385. The purpose of the arrest must be to charge the person with an offence and bring the person before a magistrate. This remains the case after the amendments to the Crimes Act allowing detention after arrest for the purpose of investigation: Dungay (2001) 126 A Crim R 216. It also means that there is no power to arrest a suspect when the arresting officer has not formed an intention to charge him: NSW v Robinson [2019] HCA 46 esp at para [63], Dowse v NSW [2012] NSWCA 337 esp at para [27].

Arrest as a Last Resort

The power to arrest should only be exercised as a last resort where alternatives (such as issuing a summons or a court attendance notice) are impractical. If the power of arrest is used inappropriately for a minor offence, and the offender reacts by committing an offence such as resist arrest /assault police, evidence of these latter offences may be excluded in the exercise of the court's discretion: DPP v Carr (2002) 127 A Crim R 151. See also DPP v CAD [2003] NSWSC 196.

Notification of reason for arrest and other information

Where the police arrest a person, the police are required to inform the person that he or she is under arrest. No particular form of words is necessary as long as it is made clear to the person that he is under arrest: Inwood [1973] 2 All ER 645.

Where a police officer arrests a person, the police officer is required to inform the person of the reason for the arrest as soon as practical after the arrest: see ss. 201(1) and 202 LEPRA. See also: Code of Practice for Crime p. 11, formerly Instruction 37.14. The reason for the arrest should be made clear to the person unless:

• this is obvious to the person or
• where the person makes it impossible

See Christie v Leachinsky [1947] AC 573, Johnstone v NSW [2010] NSWCA 70 and State of NSW v Randall [2017] NSWCA 88 at para [32].

The arresting police are also required to provide their names and stations (ss. 201(1) and 202 LEPRAHowever, the failure to comply with this requirement does not render the exercise of the power unlawful: s. 204A LEPRA.

Search of Arrested Persons.
A person who has been arrested may be searched: s. 27 LEPRA. So may a person in lawful custody: s.28A LEPRA.

Carry Cutting.
It is an offence to have a cutting weapon when arrested: s. 547D Crimes Act. This only applies when police locate the weapon after the defendant has been arrested: Pittman v Di Francesco (1985) 4 NSWLR 133.

Prints and Photos.
A police officer can take particulars necessary to identify a person in custody including fingerprints, palm prints and photographs for the purpose of identification of persons over 14: s. 133 LEPRA. Children under 14 can only be photographed or fingerprinted with a court order: s. 136 LEPRA. The purpose is ID for the court, not the police: Carr [1972] 1 NSWLR 609. However the decision to take fingerprints or photographs will only be impugned if not made bona fide: McPhail and Tivey (1988) 36 A Crim R 390. In practice, anyone arrested and charged is fingerprinted.

It has been held that s. 133 LEPRA permits the police to take photographs and fingerprints not only to establish identity but also in order to prove that the suspect had committed the crime: Regina v SA, DD, and ES [2011] NSWCCA 60.

The court can order particulars be taken of a defendant once an offence is proved: s. 134 LEPRA.

Handwriting Samples

It has been held that the predecessor to s. 133 LEPRA authorised the taking of a sample of handwriting from a person who has been arrested to identify the person: Knight (2001) 120 A Crim R 381.

Medical Examination.
Where an officer of or above the rank of sergeant has reasonable grounds for believing a medical examination will provide evidence, can request a doctor to examine a person in custody: s. 138 LEPRA. This provision does not permit includes specimens of blood and semen: Fernando (1995) 78 A Crim R 64. However, authority to take such samples can be obtained under the Crimes (Forensic Procedures) Act (2000, discussed below.

'Custody' includes people in prison as well as people in police custody: Hawes v Governor of Goulburn Correctional Centre (NSW SC 3/9/97).

Forensic Procedures

Under the Crimes (Forensic Procedures) Act (2000) police have been given wide powers to obtain forensic samples. The provisions are extremely complex and what follows is a summary.

This legislation does not apply to DNA obtained other than by taking samples from a suspect, such as by examining a discarded cigarette butt: Kane (2004) 144 A Crim R 496.

Forensic Procedures with the Consent of the Person

Any forensic procedure can be carried out with the informed consent of the suspect (s. 7) Children and mentally incapable people cannot give their consent (s. 8). 'Informed consent' carries with a requirement that police inform the suspect of his rights and in particular the fact that the forensic procedure may produce evidence against the suspect which could be used in court (s. 13). The giving of information to the suspect and the suspect's responses 'must if practicable' be recorded electronically (s. 15).

If the suspect is an Aboriginal or Torres Strait Islander, the police must notify an Aboriginal legal aid organisation, and must not ask the suspect to consent without an interview friend being present, unless the suspect expressly waives the right to have an interview friend (s. 10).

Forensic procedures can be carried out on 'volunteers' who are not suspects, with their informed consent, unless they are children or mentally incapable: s. 76.

'Non-Intimate' Forensic Procedures

Forensic procedures are divided into 'intimate' and 'non-intimate' procedures. Non-intimate forensic procedures include:

• examining, photographing, taking a swab or sample or cast or impression or measurement of part of the body other than the genitals, buttocks, or (in the case of a woman) the breasts
• taking a sample of hair other than pubic hair
• taking a sample of or from under a nail
• taking a hand print, fingerprint, foot print, or toe print (s. 3 Crimes (Forensic Procedures) Act).

A 'senior police officer' (of the rank of sergeant or above) can order the making of a non-intimate forensic procedure on a person if the senior police officer is satisfied that:

(1) the suspect is under arrest;

(2) the suspect is not a child or an incapable person;

(3) there are reasonable grounds to believe that the suspect committed an indictable offence (or, in summary, a related offence);

(4) there are reasonable grounds for believing that the forensic procedure might produce evidence tending to confirm or disprove that the accused committed the offence; AND

(5) the carrying out of the forensic procedure without consent is justified in all the circumstances.

: s. 20 Crimes (Forensic Procedures) Act.

Intimate Forensic Procedures

Intimate forensic procedures include:

• examining, photographing, taking a swab or sample from the genitals, buttocks or (in the case of a woman) breasts
• taking a sample of bloodtaking of a sample of saliva other than by buccal swab
• taking a sample of pubic hair
• taking a dental impression (s. 3 Crimes (Forensic Procedures) Act.

Intimate forensic procedures can only be carried by order of a magistrate or other authorised justice, after a hearing at which the suspect must normally be present: s. 22. Before making such an order, the magistrate must be satisfied of the following:

(1) that the person is a suspect (defined as s. 3 as meaning someone who has been arrested or charged with the offence, or whom the police officer reasonably suspects of having committed the offence);

(2) that there were reasonable grounds to believe that the suspect had committed a prescribed (i.e. indictable) offence or a related offence;

(3) that there were reasonable grounds to believe that the particular forensic procedure might produce evidence tending to confirm or disprove that the suspect had committed the offence of which he was suspected; AND

(4) that the carrying out of the forensic procedure was justified in all the circumstances (having regard to the gravity of the offence, the seriousness of the circumstances of the offence (?), the degree to which the suspect is said to have been involved in the offence, the age, cultural background and physical/mental health of the suspect, whether there are other practical ways of obtaining the evidence, the reasons the suspect has given for refusing, the time the suspect has been in custody, and such other matters as the magistrate considers relevant

see s. 24 and Orban v Bayliss [2004] NSWSC 428 at para [37].

The magistrate must make a finding that each of these matters have been established before an order can be made: Orban v Bayliss [2004] NSWSC 428 at para [48]. In particular, the magistrate must make a specific finding that there are reasonable grounds for believing that the suspect has committed the offence: Fawcett v Nimmo (2005) 156 A Crim R 431. It has been held that the magistrate can take into account hearsay material in making the determination: L v Lyons (2002) 56 NSWLR 600, 137 A Crim R 93. Before the magistrate makes an order requiring a suspect to give a sample of DNA, there must at least be a sample of DNA at the crime scene to match it with: Walker v Bugden (2005) 155 A Crim R 416.

Forensic Procedures and Prisoners

These provisions apply to 'serious indictable offenders', that is prisoners serving sentences for offences which carry a maximum penalty of 5 years or more: s. 3 Crimes (Forensic Procedures) Act. Police officers are given the power to make an order that a sample of hair (other than pubic hair) or a hand print, fingerprint, foot print or toe print be taken from a serious indictable offender in prison: s. 70 Crimes (Forensic Procedures) Act. A magistrate's order is required for the taking of a sample of blood or a buccal swab: s. 74.

Period of Detention

A person who is under arrest can be detained by police for the 'investigation period' (s. 114 LE (PAR) Act). This period is a 'reasonable time', but no more than 4 hours or such longer period as extended by an investigation warrant: s. 115 LE (PAR) Act.

In determining what is a 'reasonable time', certain periods can be disregarded as 'dead time.' Periods which can be treated as 'dead time' are the following (in summary):

(a) time taken to convey the person to the nearest location with facilities for conducting forensic procedures;

(b) a reasonable time waiting for the arrival of police officers or people whose special skills are necessary for the investigation;

(c) time waiting for a tape recorder or video tape to become available to record a record of interview;

(d) time to allow the accused to communicate with (presumably by phone) a friend, relative, guardian, independent person, lawyer or consular official;

(e) time taken in waiting for one of the people referred to in (d) to arrive;

(f) time taken to allow the accused to consult at the place where he is detained with one of the people referred to in (d)

(g) time taken in arranging for and allowing the accused to have medical treatment;

(h) time waiting for an interpreter to arrive or become available;

(i) time reasonably required to arrange and conduct an identification parade;

(j) time for the accused to rest, receive refreshments, or go to the toilet;

(k) time for the accused to recover from intoxication from alcohol an/or drugs;

(l) time for the police to prepare, make and dispose of an application for a detention warrant or search warrant;

(m) time reasonably required to charge the accused.

(see s. 117 LE (PAR) Act). The person must be released during the investigation period or brought before a justice, magistrate or court within the investigation period or 'as soon as practicable' after the end of that period: s. 114 LE (PAR) Act.

Extensions to the Investigation Period

A magistrate or clerk of the Local Court can authorise an extension to the investigation period for a further period, up to 8 hours (s. 118 LE (PAR) Act). The application can be made orally or in writing.

The Rights of the Suspect

The custody manager at the police station is required to caution the suspect and summarise the provisions about detention: s. 122 LE (PAR) Act. The custody manager is required to inform the suspect before any investigative procedure starts that the suspect can contact a friend, relative or lawyer to inform them of his whereabouts, consult them, or in the case of a lawyer to be present during the investigative procedures. The custody manager is required to provide facilities for the suspect to communicate with the friend, relative or lawyer (s. 123 LE (PAR) Act).

Similarly the custody manager is obliged to inform foreign nationals of their right to communicate with a consular official of the country of which the suspect is a citizen (s. 124 LE (PAR) Act).The custody manager must arrange for an interpreter to be present during any investigative procedure if it appears that because of inadequate knowledge of English the person cannot communicate with reasonable fluency in English (s. 128 LE (PAR) Act).

'Vulnerable Persons': Children, Aboriginals, people with an intellectual disability, etc

Vulnerable persons are defined as:

• children
• people with impaired physical or intellectual functioning
• Aboriginals and Torres Strait Islanders
• people from a non-English speaking background

(Regulation 24 LE (PAR)Regulations).

'Vulnerable persons' are entitled to have a support person present during any investigative procedure: Regulation 27 LE (PAR) Regulations. Before any investigative procedure starts, the custody manager at the police station must inform the 'vulnerable person' that he/she is entitled to have a support person present during any investigative procedure (reg 27).

Support Persons

If the 'vulnerable person' wishes to have a support person present, the custody manager must provide 'reasonable facilities' to enable a support person to be present (presumably access to a telephone) and allow the 'vulnerable person' to communicate privately with the support person: reg 27 LE (PAR) Regulations. This includes the right to make a phone call to a legal practitioner (reg 25 LE (PAR) Regulations).

The custody manager is to inform the support person that he/she is not restricted to acting merely as an observer in the interview, but may assist and support the person being interviewed, observe whether or not the interview is being conducted fairly, and identify communication problems with the person being interviewed: reg 30 LE (PAR) Regulations.

The caution should be repeated in front of the support person: reg 34 LE (PAR) Regulations. A copy of a summary of the suspect's rights while in custody (formerly called the part 10A document) should be given to the support person and any interpreter for the vulnerable person: reg 30 LE (PAR) Regulations.

Breaches of these regulations may be very significant in relation to the question of whether an alleged confession of the 'vulnerable person' is admissible.

Aborigines

In addition to the rights referred to in the preceding paragraph, the custody manager of a police station must inform an Aboriginal or Torres Strait Islander in custody that he will inform an Aboriginal legal aid organisation that he is the suspect is in custody for an offence, and notify the Aboriginal legal aid organisation accordingly: reg 33 LE (PAR) Regulations This requirement does not depend on the accused making a request for an Aboriginal legal aid organisation to be contacted. As to the effect on the admissibility of a confession made when this regulation was not complied with, see Helmhout (2001) 125 A Crim R 257.

(b) Search and Other Warrants

Surveillance Device Material

Generally speaking recording a private conversation of parties without their consent is unlawful: s. 7 Surveillance Devices Act. One exception is where the the person recording the conversation is a party to the conversation and records the conversation in order to protect that person's lawful interests: s. 7 (3) Surveillance Devices Act. This may permit a child complainant in a sexual assault case to record a conversation with an adult accused: DW v Regina [2014] NSWCCA 28.

Surveillance Device Warrants.
The validity of a listening device warrants cannot be challenged in an inferior court (Murphy v The Queen (1989) 167 CLR 94, Love v The Queen (1990) 169 CLR 307) but may be able to be challenged in the Supreme Court (Carroll (1993) 70 A Crim R 162, Haynes (1996) PD [155], Ousley v The Queen (1997) 192 CLR 69, 71 ALJR 1548).

Contents of a Surveillance Device Warrant
A surveillance device warrant is required to contain (s. 20 Surveillance Devices Act):

• the name of the applicant for the warrant
• the prescribed offence for which the warrant was granted
• the date when the warrant was issued
• the kind of surveillance device to be used
• the premises or place where the listening device is to be installed
• where known, the name of any person whose conversation may be recorded
• the period (not exceeding 90 days) during which the warrant is in force
• the name of the law enforcement officer primarily responsible for executing the warrant
• any conditions on the warrant

A warrant must expressly authorise trespassing to install it for such a trespassory installation to be valid : Coco v The Queen (1994) 179 CLR 427, 68 ALJR 401.

Interception of Telephone Calls

Interception of telephone calls is governed by the Telecommunications (Interception and Access) Act (Commonwealth) 1997. What follows can only be a summary of these provisions. Generally it is not permissible to listen to or record a telephone call (the cumbersome phrase 'a communication passing over a telecommunications system' is used in the Act): s. 7 Telecommunications (Interception and Access) Act. There are some important exceptions to this general rule:

• if the party being recorded is aware that the communication is being listened to or recorded: s. 6(1) Telecommunications (Interception and Access ) Act
• if the conversation is recorded by a microphone external to the telephone (Oliver (1984) 57 ALR 543)
• where an officer of the agency (usually a police officer) has reasonable grounds for suspecting that a party to the conversation has threatened to or may do an act which may result in a loss of life, or serious injury to a person or property (s. 7 (4) and (5) Telecommunications (Interception and Access) Act)
• where a warrant under the Act has been granted

Applications for a warrant

Applications for warrants can be made by state or federal police as well as a number of agencies including the Crime Commission and the ICAC (s. 39 Telecommunications (Interception and Access) Act). Normally applications for a warrant must be made in writing, supported by an affidavit (except in urgent cases): s. 40 Telecommunications (Interception and Access) Act. Applications are made to judges or nominated members of the AAT (s. 39 Telecommunications (Interception and Access) Act). Applications are to include (s. 42 Telecommunications (Interception and Access) Act):

• the facts upon which the application is based
• the period for which the warrant is sought and why it is sought for that period
• if for a named person, that person's name, and the telephones that person has used or is likely to use
• the number of previous applications made
• the number of warrants previously issued
• the use made by the agency of information obtained in those warrants

Matters of which a judge must be satisfied for a warrant for a class 1 offence

Class 1 offences are defined in s. 5 of the Act and include murder, kidnapping, and terrorism offences. Before issuing a warrant for a telephone intercept for a class 1 offence, the judge/AAT member must be satisfied that (s. 46 Telecommunications (Interception and Access) Act):

Search Warrants on Drug Premises

There are specific police powers relating to 'drug premises'. Any officer of or above the rank of sergeant can apply for a search warrant for premises which he/she believes on reasonable grounds is being used for the manufacture or supply of a prohibited drug: s. 140 LE (PAR) Act. If the warrant is granted the police have the power to search the premises and any person found on the premises: s. 142 LE (PAR) Act. Generally the provisions for the execution of ordinary search warrants described above apply: s. 59 LE (PAR) Act.

Common Law Powers

Police may only enter premises without a warrant if there is:

• notice of their presence, by knocking or ringing a doorbell
• notice of their authority, by identifying themselves as police, and
• notice of purpose, by stating a lawful reason for entry

(Lippl v Haines (1989) 18 NSWLR 620, O'Neill (2001) 122 A Crim R 510).

Notices to Produce

Police can now apply for a notice to produce addressed to a financial institution to produce records: s. 53 LE (PAR) Act.

Entrapment in State Proceedings

The situation in relation to entrapment has been changed so far as state offences in New South Wales are concerned by the Law Enforcement (Controlled Operations) Act (1997). The definition section makes it clear that a 'controlled activity' is an illegal activity (s. 3).

A law enforcement officer can make an application in writing (or, in urgent cases, orally) to the chief executive officer of a law enforcement agency (usually the Commissioner of Police) for an authority to conduct a controlled operation. The application must include the plan of the proposed operation, the alleged nature of the criminal activity or corrupt conduct being investigated, the nature of the 'controlled activity' to be used, and a statement about whether there has been any earlier application (s. 5).

The chief executive officer may authorise the controlled operation if satisfied that

• there are reasonable grounds for believing that criminal activity or corrupt conduct is being conducted
• the nature and extent of the criminal activity and corrupt conduct is such as to justify the conduct of a controlled operation
• the nature and extent of the proposed 'controlled activities' are appropriate to the suspected criminal activities or corrupt conduct
• the controlled activities are capable of being sufficiently accounted for

The power to issue an authority can be delegated but only to an officer of or above the rank of superintendent (s. 29). A written statement of reasons should be kept by the Chief Executive Officer (s. 6).

Importantly the legislation prohibits inducing or encouraging a person to commit criminal activity or corrupt conduct that the person could not reasonably be expected to engage in unless so induced or encouraged. It also prohibits conduct likely to seriously endanger the health and safety of any person, or cause serious damage to property (s. 7). In Gedeon v Commissioner of the NSW Crime Commission [2008] HCA 43 it was held that this provision was breached when the Crime Commission authorised the sale of 6 kilos of cocaine knowing it was unlikely to be recovered.

The authority must be in writing and must indicate:

• the operation by reference to the plan
• the law enforcement officer who is conducting the operation
• must identify the names of each person who may engage in 'controlled activities'
• must indicate whether such persons may operate under an assumed name
• must indicate the 'controlled activities' each law enforcement officer and civilian participant may engage in
• must specify the duration (not to exceed 6 months) of the authority (s.8)

A law enforcement official and a civilian authorised to engage in a 'controlled activity' does not constitute an offence (s. 16). A certificate issued by a chief executive officer of a law enforcement agency to the effect that he/she was satisfied of matters referred to in the certificate is conclusive evidence that he/she was so satisfied (s. 27).

Entrapment in Commonwealth Proceedings
There are similar provisions in ss. 15G to 15J of the Commonwealth Crimes Act. Once again, the Act does not apply of a person is intentionally induced to commit a crime, and the person would not otherwise have committed that offence or an offence of that kind (s. 15I)

(c) Interrogation

Children.
Police should not question a child suspected of committing an offence unless there is a 'support person' present (not a police officer): Code of Practice for CRIME, p. 33, replacing Instruction 37.17.

Aboriginals.
In the Northern Territory special rules have been formulated for interrogation of Aboriginals. For example there should be a 'prisoners friend' present, the caution should be read back by the accused, the questions should not be leading, etc. These rules are called the Anunga Rules: Anunga (1976) 11 ALR 412. Under the Code of Practice for Crime, the custody manager is required to ensure that Aboriginal legal aid has been contacted: Code of Practice for CRIME, p. 12.

Police Questioning: suspects with an intellectual disability
Where a person is suspected of being developmentally delayed the interview should take place in the presence of a guardian, relative, friend or non-police professional: Police Instruction 37.14.

Records of Interview.
The defendant should be asked to read the interview aloud. The senior officer available not connected with the investigation should ask the defendant if it was a voluntary statement etc. The defendant should be supplied with a copy: Instruction 37.16.

'Preliminary Questioning' in Notebooks.
When a suspect makes a 'confession, admission or statement' in preliminary questioning, the police officer should 'record it in full in your notebook' (Code of Practice for CRIME pp. 25-6). 'Do not make notes elsewhere' (Police Service Handbook p. N-2). The suspect should be asked to sign the notebook. In any subsequent ERISP, the notebook entries should be read to the suspect who should be asked to comment on them (Code of Practice for CRIME p. 26).

After Charge.
Once a person has been charged they should only be interviewed when necessary to minimize loss or harm to some person, or about new matters, or to recover property: Instruction 37.14. According to the Code of Practice for CRIME, a person in custody has a 'right' to communicate with a friend, relative or legal guardian: CRIME at p. 15, replacing Instruction 155.

(d) Bail

The Bail Act (2013)

The Bail Act (2013) commenced on 20 May 2014. I recommend a very good paper written by Lucinda Opper on the new act which can be found here. Subsequent to Lucinda's paper there have been some significant amendments to the Bail Act.

Applications under the Bail Act

Under the Bail Act, there can be three types of bail applications. They are (s. 48 Bail Act):

(a) a release application (made by the accused)

(b) a detention application application (made by the prosecutor)

(c) a variation application (which can be made by any 'interested person')

An 'interested person' who can make a variation application is an accused, a prosecutor, a complainant in a domestic violence offence, a person for whose benefit an apprehended violence order was made, or the Attorney-General (s. 51 Bail Act).

Offences where there is a right to release

There is a right to release on bail for offences for which the maximum penalty is a fine only, and offences under the Summary Offences Act (apart from certain specified offences): s. 21 Bail Act.

Power to grant bail in court generally

An application for bail can be made in a court where proceedings are pending in that court (s. 61 Bail Act).

An application for bail can be made in a court after conviction where an appeal against conviction or sentence has been lodged in another court but before the applicant has appeared in the other court (s. 62 Bail Act).

A court can hear an application for variation of bail decision made by that court, however constituted (s. 63 Bail Act).

Applications for bail in the Local Court

Appeals bail

Where there is an appeal from the District Court or Supreme Court to the Court of Criminal Appeal, or to the High Court, bail can only be granted if there are 'special' or 'exceptional' circumstances: s. 22 Bail Act. Under the previous Bail Act, it was held that in practice this means it is necessary to show that the appeal is most likely to succeed: Regina v Wilson (1994) 34 NSWLR 1. Where the appeal is against a sentence imposed in the District Court, it needs to be shown at least that if bail is not granted the whole sentence will be served before the matter is heard in the CCA, or that there is an overwhelming likelihood that the appeal will succeed in the CCA : Tyler (1995) 80 A Crim R 371. It is overstating the case to say that a succesful appeal must be virtually inevitable to obtain appeals bail: El-Hili and Melville v Regina [2015] NSWCCA 146 esp at para [24]. The CCA has the power to grant bail: Milsom v Regina [2014] NSWCCA 118.

It has been held that an applicant for appeals bail where there has been a Crown appeal is still required to establish special or exceptional circumstances in order to obtain bail: HT v DPP [2019] NSWCCA 141 esp at para [22].

'Show Cause' Offences

Where a bail authority is considering a case of an accused who is over 18, charged with a 'show cause' offence, the bail authority must refuse bail unless the accused shows cause why his or her detention is not justified: s. 16A (1) Bail Act. Once the accused has 'shown cause', the bail authority must then make a bail decision in accordance with the 'unacceptable risk' test: s. 16A (2) Bail Act. As to the 'unacceptable risk' test see below.

'Show cause' offences are set out in s. 16B Bail Act. In summary, they include:

• offences punishable by life imprisonment;
• serious indictable offences involving an adult having sexual intercourse (or inflicting actual bodily harm with intent to have sexual intercourse) with a child under 16;
• an offence of violence involving wounding or infliction of grievous bodily harm or more where the accused has a record of committing a' serious violence offence' (in summary an offence of violence with a maximum penalty of 14 years or more)
• an offence involving the possession of a firearm in a public place or use of a firearm in the commission of a serious indictable offence;
• an offence which involves possession, supply or use of a military-style firearm;
• a drug offence under either state or Commonwealth legislation involving at least a commercial quantity of the drug;
• a serious indictable offence committed while the accused is on bail or parole;
• an indictable offence committed while the accused is on a supervision order;
• offences of attempting or aiding and abetting the offences referred to

Procedure for 'show cause' offences

For 'show cause' offences, the applicant must demonstrate on the balance of probabilities that his or her detention is not justified, and that test is separate from the 'unacceptable risk' test: DPP v Tikomaimaleya [2015] NSWCA 83 esp at para [25]. However, in many cases the considerations for each test may be the same: DPP v Tikomaimaleya [2015] NSWCA 83 esp at para [24].

It is not necessary to show special or exceptional circumstances in order to show cause: Moukhallaletti v DPP [2016] NSWCCA 314 esp at para [55]. A single powerful factor, or a powerful combination of factors may show cause: Moukhallaletti v DPP [2016] NSWCCA 314 at para [54].

In Regina v Gountounas [2018] NSWCCA 40 there were mixed views about whether significant delay in bringing a matter to trial could satisfy the 'show cause' requirement. Fullerton J said that significant delay in bringing a matter to trial was not of itself sufficient to show cause (para [40]), and in view of the strength of the Crown case had little weight (at para [44]). Simpson J said that the delay in bringing the matter to trial had significant weight (at para [2]). McCallum J said that the significant delay could be enough to show cause (at para [55]).

Flow Chart of decisions for 'show cause' offences

Section 16 Bail Act contains a flow chart of decisions for 'show cause offences' under the Bail Act:

Flow chart of decisions under the Bail Act

Section 16 Bail Act contains a flow chart of decisions under the Bail Act:

Is there an 'unacceptable risk'?

For other offences, the first issue which arises a 'bail authority' (an authorised police officer, or justice, or judge) determining bail is assess any 'bail concerns' of the defendant:

• failing to appear;
• commiting a serious offence;
• endangering safety of victims, individuals of the community;
• interfering with witnesses or evidence (s. 17 Bail Act)

In determining assessing any 'bail concerns', the court is to consider the following matters, and only the following matters (s. 18 Bail Act):

(3) A bail authority is to consider the following matters, and only the following matters, in deciding whether there is an unacceptable risk:

(a) the accused person’s background, including criminal history, circumstances and community ties,
(b) the nature and seriousness of the offence,
(c) the strength of the prosecution case,
(d) whether the accused person has a history of violence,
(e) whether the accused person has previously committed a serious offence while on bail,
(f) whether the accused person has a history of compliance or non-compliance with bail acknowledgments, bail conditions, apprehended violence orders, parole orders or good behaviour bonds,
(g) whether the accused person has any criminal associations,
(h) the length of time the accused person is likely to spend in custody if bail is refused,
(i) the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence,
(j) if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success,
(k) any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment,
(l) the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice,
(m) the need for the accused person to be free for any other lawful reason,
(n) the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence,
(o) in the case of a serious offence, the views of any victim of the offence or any family member of a victim (if available to the bail authority), to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community,
(p) the bail conditions that could reasonably be imposed to address any bail concerns in accordance with section 20A.

(q) whether the accused person has any associations with a terrorist organisation (within the meaning of Division 102 of Part 5.3 of the Commonwealth Criminal Code), 

(r) whether the accused person has made statements or carried out activities advocating support for terrorist acts or violent extremism, 

(s) whether the accused person has any associations or affiliation with any persons or groups advocating support for terrorist acts or violent extremism.

 

It has been stressed that the length of time the accused is likely to spend in custody is a significant matter: Regina v Alexandris [2014] NSWSC 662 esp at para [12].

The views of the police about whether or not bail should be granted are irrelevant: DPP v Mawad [2015] NSWCCA 227 esp at para [35].

In determining whether or not the offence is to be regarded as a serious offence, the following matters are to be considered (s. 17(4)):

(a) whether the offence is of a sexual or violent nature or involves the possession or use of an offensive weapon or instrument within the meaning of the Crimes Act 1900,
(b) the likely effect of the offence on any victim and on the community generally,
(c) the number of offences likely to be committed or for which the person has been granted bail or released on parole.

Some very recent cases have said that the onus is on the prosecution to establish that there is an unacceptable risk if the accused is granted bail: Regina v Alexandris [2014] NSWSC 662 esp at para [10]). Cases in other jurisdictions with a similar test to the 'unacceptable risk' test have stated that although the risk must be more than a tenuous one or the worst fear, it is not necessary for the prosecution to establish that the risk is more probable than not: see for example Haidy v DPP [2004] VSC 247 esp at paras [15] to [16]. Some cases have emphasised that assessing 'unacceptable risk' involves not simply determining whether or not there is a risk that (for example) the offender  will re-offend, but balancing that risk against the consequences for the accused (including the accused's right to be at liberty) if bail is refused': see for example Woods v DPP [2014] VSC 1 esp at para [47].

Where there is no unacceptable risk, the bail authority must either release the defendant without bail, dispense with bail, or grant unconditional bail (s. 18 Bail Act).

Second Issue: Where there is are 'unacceptable risk', can it be sufficiently mitigated by bail conditions?

Where the bail authority has determined that there is an 'unacceptable risk', the bail authority must then determine whether or not the unacceptable risk can be sufficiently mitigated by bail conditions. Again, it has been held that the onus is on the prosecution, on the balance of probabilities, to establish that the 'unacceptable risk' cannot be mitigated: Regina v Lago [2014] NSWSC 662 esp at para [10].

If the 'unacceptable risk' cannot be mitigated by bail conditions, bail can be refused: s. 19 Bail Act.

Third Issue: What should the bail conditions be?

Bail conditions can only be imposed to mitigate an unacceptable risk. Bail conditions can only be imposed if (s. 20A (2) Bail Act);

(a) the bail condition is reasonably necessary to address a bail concern, and
(b) the bail condition is reasonable and proportionate to the offence for which bail is granted, and
(c) the bail condition is appropriate to the bail concern in relation to which it is imposed, and
(d) the bail condition is no more onerous than necessary to address the bail concern in relation to which it is imposed, and
(e) it is reasonably practicable for the accused person to comply with the bail condition, and
(f) there are reasonable grounds to believe that the condition is likely to be complied with by the accused person.

Bail conditions can be:

• conduct requirements
• security requirements
• character acknowledgment
• accomodation requirement

Conduct Requirement

A conduct requirement is a requirement that a person do or refrain from doing anything, but not providing security: s. 25 Bail Act.

Security requirement

A security requirement is a requirement that the accused or one or more other persons agree to forfeit a specified amount of money if the accused fails to appear in court, with or without security: s. 26 Bail Act.

A security requirement is only to be imposed to mitigate the risk of the accused not appearing in court (s. 26 (5)), and only if conduct requirements could not mitigate thata risk (s. 26(6)).

Character acknowledgment

A character acknowledgment is an acknowledgment that a person is acquainted with the accused and regards him as a responsible person who is likely to comply with bail: s. 27 Bail Act.

Accomodation requirement

A court may impose an accomodation requirement on a child to the effect that bail will not be granted until the authorities have made suitable arrangements for the accomodation of the child: s. 28 Bail Act.

Pre-release requirements

A bail condition is a pre-release requirement if the condition must be complied with before the person is released on bail. The only bail conditions which may be pre-release requirements are (s. 29 Bail Act):

• a conduct requirement to surrender a passport;
• security requirements
• character acknowledgments
• accomodation requirement

Enforcement conditions

A court may impose an enforcement condition, requiring the defendant to comply with specified kinds of police directions to monitor compliance: s. 30 Bail Act.

Limitations on jurisdiction to consider bail

The Local Court and the District Court can make a decision about appeals bail after conviction if the accused has not yet appeared in a higher court: s. 62 Bail Act.

The Local Court can consider bail after committing an accused for sentence or trial to a higher court, but not after the accused has appeared in the District Court or Supreme Court: s. 68 Bail Act.

Further applications for bail

Where a court has refused bail, it is not to hear a further release application or a detention application unless (s. 74 Bail Act):

• the defendant was not legally represented on the last occasion;
• relevant information was not presented on the last occasion;
• circumstances relevant to the bail application have changed; or
• the accused is a child

However, this does not apply to an application to the District Court after an application has already been made to the Local Court: Barr (A Pseudonym) v DPP [2018] NSWCA 47 esp at paras [55] to [63].

Proof in bail applications

The purposes of the Bail Act include a requirement that bail authorities determining a bail application have regard to the presumption of innocence and the general right to be at liberty: s. 3 Bail Act. This suggests that the onus of proof is on the prosecution.

The burden of proof is on the balance of probabilities: s. 32 Bail Act.

The rules of evidence do not apply in bail applications: s. 31 Bail Act.

Crown Appeals

If the Crown appeals against a decision to grant bail and immediately so informs the court, the decision is stayed for 3 business days or until the Supreme Court decides otherwise (s. 40 Bail Act). There is no 'principle of restraint' in relation to applications for detention made in the CCA after Supreme Court bail has been granted: Regina v Marcus [2016] NSWCCA 237, esp at para [27].

Applications for bail to the Supreme Court

As from 3 June 2019, applications for bail must be filed with submissions and all documentation in support of the bail application including affidavits, documents confirming the consent of the person with whom the applicant wishes to reside, reports, and character references. There is a practice note about filing Supreme Court bail applications, Practice Note SC CL 11. There is a Supreme Court bail application form.

(e) Crime Commission and Related Bodies

The NSW Crime Commission

The NSW Crime Commission is increasingly important in the criminal investigatory process. What follows is simply some suggestions about the basics of appearing in the Crime Commission.

Appearing for an Witness in the Crime Commission

A person giving evidence before the Crime Commission can be legally represented (s. 22 Crime Commission Act). A particular legal representative can be refused leave to appear if the Commissioner believes on reasonable grounds and in good faith that such representation will prejudice its representation (s. 22 Crime Commission Act).

The Crime Commission can and usually does as a matter of course direct that evidence before it, and even the fact that a witness has given evidence before it, not be 'published': s. 45 Crime Commission Act.

Evidence Before the Commission

The rules of evidence do not apply in proceedings (s. 23 Crime Commissions Act), so objections are often reduced to complaints about ambiguous questions. In particular, objections based on the privilege against self-incrimination do not apply: s. 39 Crime Commission Act. Legal professional privilege does apply: s. 39(4) Crime Commission Act. So does the privilege attached to religious confessions: s. 40 Crime Commission Act.

By far the most important thing to know about proceedings in the Crime Commission is that evidence given by a witness is not admissible in proceedings against that witness (except for proceedings for perjury and related offences) if the witness objects: s. 39 Crime Commission Act. The Commissioner can declare that all answers or all answers of a particular class will be regarded as being given under objection: s. 39(6). If there is the faintest suspicion that your client is a suspect, you should advise him/her to object to giving evidence.

Failing to attend when served with a summons, or failing to take the oath, or failing to answer questions, is an offence which carries 20 penalty units or 2 years gaol: s. 25 Crime Commission Act. The requirements of proof of a failure to take an oath or affirmation have been strictly construed in Fehon v Domican (2002) 127 A Crim R 592 .

Providing the prosecution with transcripts of an accused's evidence from the Crime Commission

In X7 v Australian Crime Commission [2013] HCA 29 a majority of the High Court held that there was no power to compulsorily examine an accused about an offence with which he has been charged (per French CJ and Crennan J at para [54], Hayne and Bell JJ at para [156], Kiefel J at para [162]).

The High Court has held that where the evidence of an accused who has given evidence before the Crime Commission about an alleged offence has been supplied to the investigating police and the prosecution, any resulting trial will give rise to a miscarriage of justice: Lee v the Queen [2014] HCA 20.

The Crime Commission Act has been amended to permit the Crime Commission to seek leave of the Supreme Court to compulsorily examine an accused person about an offence: s. 35A Crime Commission Act. Whether or not this provision overrules X7 v Australian Crime Commission [2013] HCA 29 is not clear. At least before a person is charged, the prosecution is entitled to have access to the transcript of the accused's evidence at ICAC: McDonald and Maitland v Regina [2016] NSWCCA 306.

(f) Local Court Proceedings

What Offences are Summary Offences?

Summary offences are offences which:

• are described as summary offences,
• are required to be dealt with summarily,
• have a maximum penalty of no more than 2 years imprisonment (s. 6 Criminal Procedure Act)
• are Table 1 or Table 2 offences for which there has been no election to have the matters dealt with indictably (see below).

Summary Proceedings: Commencing Proceedings
An information for a purely summary offence must be laid within 6 months of the offence being committed: s. 179 Criminal Procedure Act. Importantly, the 6 month time limit does not apply to indictable matters being dealt with summarily. However, if the matter is a penalty notice matter and the defendant has elected to have the matter dealt with in the Local Court, the time limit is extended to 12 months: s. 37A Fines Act.

The power to ignore defects in the information under s. 16 Criminal Procedure Act does not include a change to the elements of the offence: Ex parte Lovell; re Buckley (1938) 38 SR NSW 153, Ex parte Burnett; Re Wicks [1968] 2 NSWLR 119. The information must contain all the essential elements of the offence: John L v Attorney General of New South Wales (1987) 163 CLR 508 esp at para [14], Stanton v Abernathy (1990) 19 NSWLR 656.

Query if a charge can be withdrawn by an informant without being withdrawn dismissed: Gregg v O'Connor (Sully J, 21/4/92), overruled in Lay v Cleary [Bulletin 67]. A magistrate has no power to recharge: Suters v Harrington [CN 113].

A magistrate can order a stay of proceedings: DPP v Shirvanian (1998) 44 NSWLR 129.

Summary Proceedings: Service of a Brief

In all summary proceedings, except those for which a penalty notice may be issued, if the defendant pleads not guilty the prosecution must serve on the defendant a copy of the brief of evidence, including all witness statements and proposed documentary exhibits, 14 days before the hearing or such other time as the magistrate determines (s. 183 Criminal Procedure Act). It appears that the brief should include listening device warrants and telephone intercept warrants (DPP v Webb [2000] NSWSC 859) but not search warrants (DPP v Southorn [1999] NSWSC 786).

If the brief is not served, the magistrate may dispense with service, adjourn the proceedings (s. 187 Criminal Procedure Act), or refuse to admit the evidence (s. 188 Criminal Procedure Act). In determining whether or not to refuse to admit the evidence the magistrate is exercising a discretionary judgement and should weigh up the competing policy considerations including the quick and efficient disposal of criminal proceedings (on the one hand) and the public's interest in prosecuting offenders: DPP v Fungavaka [2010] NSWSC 917.

The Prosecution Duty of Disclosure in the Local Court

The prosecution in Local Court criminal proceedings has the same obligations of disclosure as the Crown in higher court criminal proceedings. That includes disclosure of any document which may allow the defence to pursue a 'proper an fruitful course in cross-examination', including matters going to credit, such as prior convictions of prosecution witnesses: Bradley v Senior Constable Chilby [2020] NSWSC 145.

Must the defendant be present?

It has been held that where a defendant is not on bail, it is not necessary for the defendant to be personally present during a hearing if he or she is legally represented: McKellar v DPP [2014] NSWSC 459.

Adjournments of Summary Proceedings

Refusal of an adjournment to a defendant can result in a procedural unfairness: Noble v DPP (2000) 118 A Crim R 305.

Where a defendant has been refused legal aid there is a right of appeal to the Legal Aid Review Committee (s. 56 Legal Aid Commission Act).

Where a defendant has appealed to the legal Aid Review Committee, or intends to so appeal, the court must adjourn the proceedings if the appeal is bona fide and not vexatious or frivolous or intended to delay proceedings unless there are special circumstances: s. 57 Legal Aid Commission Act.

In Lewis v Spencer [2007] 179 A Crim R 48 Rothman J said (at para [11]):

Prima facie the existence of an appeal or an intention requires the adjournment. It is only in circumstances where the appeal or intention to appeal is not bona fide, not frivolous or vexatious or not otherwise intended “to improperly hinder or improperly delay” the conduct of the proceedings that the adjournment may not be granted.

Summary Proceedings: Open, Closed, and Non-Publication Orders

Generally, summary proceedings are to be in open court, that is open to the public and the media: s. 191 Criminal Procedure Act. This general rule is subject to some important statutory and common law exceptions. In particular, under the Court (Suppresion and Non-Publication Orders) Act (2010) courts can make suppression or non-publication orders as to the identity of the accused, a witness, or any party to proceedings, or as to the evidence in proceedings, for a limited period.

In sexual assault cases (in particular in this context including indecent assault), the court can close the court (s. 291 Criminal Procedure Act). Such an order can include suppression of the name of the accused: Crampton v DPP (NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was held that the interests of the accused were relevant in determining whether or not to make an order forbidding publication: Nationwide News v District Court of NSW (1996) 40 NSWLR 486. Those interests include the effect that publicity might have on the accused's mental health or that of his family: AB (a pseudonym) v Regina (No. 3) [2019] NSWCCA 46 esp at para [59].

At common law, the power to make a non-publication order was limited. The name of an accused can be suppressed if it is necessary to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565. It was held that the District Court had no power to order the non-publication of the fact of a verdict even if there were to be later trials of the same accused: John Fairfax Publications v District Court of New South Wales (2004) 61 NSWLR 344.

Order of Addresses

An argument that the defence has the right to address last in summary proceedings has been rejected: Mason v Lyon [2005] NSWSC 804.

The magistrate's decision

The magistrate is required to give reasons for his or her decision including sentence: Roylance v DPP [2018] NSWSC 933 esp at para [14].

Summary Proceedings: Costs

Normally costs will not be awarded to a successful defendant unless the investigation was unreasonable or the proceedings were initiated without reasonable cause: s. 214 Criminal Procedure Act. An adjournment can be granted on condition that the Crown pays costs: Le Bouriscot (1996) PD [178].

Indictable Proceedings Dealt with Summarily.

Indictable proceedings may dealt with summarily if they a Table 1 or Table 2 offence. The election cannot be made after the evidence commences or the facts are tendered (s. 263 Criminal Procedure Act). Where an election is made the maximum penalty is generally 2 years imprisonment (s. 267 Criminal Procedure Act, for Table 1 and s. 268 Criminal Procedure Act, for Table 2).

A magistrate cannot impose a cumulative sentence on a prisoner who is serving a sentence which would mean that the new sentence would expire more than five years after the existing sentenced commenced : s. 58 Crimes (Sentencing Procedure) Act.

Table 1

Table 1 offences are to be dealt with summarily unless the prosecutor or the defendant elects (section 260 Criminal Procedure Act). They are generally more serious than Table 2 offences. The complete list of Table 1 offences can be found in Schedule 1 of the Criminal Procedure Act. The offences include:

• reckless wounding or inflict gbh
• aggravated indecent assault, culpable driving where death does not result
• larceny or receiving over $5000
• break and enter offences under $15000
• other dishonesty offences
• steal motor vehicle
• public order offences
• escape and other prison offences
• drug offences between the small and the indictable quantity (less than commercial quantity for cannabis)

Table 2

Table 2 offences are to be dealt with summarily unless the prosecutor elects (s. 260 Criminal Procedure Act). They are generally the less serious offences. The complete list of Table 2 offences can be found in Schedule 1 of the Criminal Procedure Act. The offences include:

• common assault, aoabh, assault police, indecent assault
• larceny etc or receiving for under $5000
• malicious damage under $5000
• possession of an implement
• take and drive motor vehicle
• drug offences under the small quantity

(g) Committals

Committals were until 2018 an administrative proceeding in the Local Court to determine whether or not a person charged with an indictable offence should be committed for trial or sentence in the Supreme Court or District Court. As from 30 April 2018, committals are simply proceedings for committing a person charged with an indictable offence for trial or sentence (s. 3 Criminal Procedure Act). Effectively, these changes pass the responsibility for determining whether or not there is sufficient evidence for an accused to stand trial, from an independent judicial officer, to a salaried prosecutor.

Procedure in Committals: 'Charge Certificates'

The magistrate hearing the committal must set a timetable for the prosecution to serve a copy of the brief (including statements of all witnesses and any other material ressonably capable of being relevant to the strength of the prosecution case or the defence case) on the defendant (s. 61 - 62 Criminal Procedure Act). There is a continuing obligation on the prosecutor to serve material evidence on the defendant (s. 63).

The Dirctor of Public Prosecutions (through a solicitor) is required to prepare a 'charge certificate' stating the charges to be proceeded with, any backup or related charges, and certifying that there is sufficient evidence to establish each charge (s. 66 Criminal Procedure Act). The charge certificate must be filed in court and served on the accused on a date set by the magistrate usually no more than 6 months after the first return date of the court attendance notice (s. 67 ). If the charge certificate is not filed in time, the magistrate has the power to discharge the defendant (s. 68 ).

Procedure in Committals: Case Conferences

After the Charge Certificate is filed, in cases where the defendant is legally represented, and pleads not guilty to at least one offence, there is required to be a 'case conference' (s. 70 Criminal Procedure Act). The purpose of the case conference is to determine whether or not there are any charges to which the defendant is prepared to plead guilty, and to identify the issues in the trial including the agreed or disputed facts (s.70 Criminal Procedure Act).

The case conference is between the prosecutor and the defendant's lawyer. The initial case conference must be in person or by audiovisual link. Subsequent case conferences may be held by telephone (s. 71 Criminal Procedure Act). The defendat's legal representative is required to obtain instructions from the defendant and explain the benefits of a plea of guilty: s. 72 Criminal Procedure Act. Where there are multiple accused, there must be a seperate case conference for each accused unless the prosecutor and all the accused consent (s. 73 Criminal Procedure Act).

Case Conference Certificate

After the case conference, the prosecutor is required to prepare and file a Case Conference Certificate: s. 74 Criminal Procedure Act. The matters which must be included in the certificate are set out in s. 75 Criminal Procedure Act, but include the offers made by the prosecution and the defence, whether any of these offers have been accepted, which charges the prosecution intends to proceed with, and whether or not the prosecution will seek to make a submission that the discount for the plea be reduced or should not apply. There must be a certificate signed by the accused's lawyer to the effect that the lawyer has explained to the defendant the benefits of a plea of guilty (s. 75 (2) Criminal Procedure Act).

Where the prosecution does not file the case conference certificate in time, the magistrate can adjourn the proceedings, or can discharge the accused (s. 76 Criminal Procedure Act).

Where the accused makes a plea offer after the case conference certificate is filed, thatoffer can be filed separately: s. 77 Criminal Procedure Act).

The case conference certificate and any discussions in the case conference are generally not admissible in other proceedings except sentence proceedings: s. 78 Criminal Procedure Act.

Directing witnesses to give evidence in committals

The power of directing witnesses to attend and give evidence during the committal proceedings has been retained even though magistrates no longer have the power to discharge defendants at committal: s. 82 Criminal Procedure Act. If one of the parties to the proceedings applies for a witness to give evidence at committal, and the other party consents, the magistrate must give the direction: s. 82(4). The purpose of retaining the power to direct witnesses to give evidence is so as to better understand the case against the defendant and facilitate charge negotiations.

If a witness is not required to give oral evidence, the witness' statement can be tendered. Practitioners should be very conscious of the fact that if a crucial witness is not required for cross-examination, and the witness's statement is tendered at the committal, if that witness later dies or is so ill that he/she cannot give evidence, the statement can be tendered at trial: s. 285 Criminal Procedure Act. As a result in if a witness gives damaging evidence against the accused, which evidence is in dispute, it may be advisable to require that witness to give evidence at committal. Even if nothing is achieved in cross-examination, the simple fact of the witness having to give an account on oath creates a potential prior inconsistent statement.

Witnesses who cannot be required to give evidence

Complainants in cases of sexual assault, sexual servitude, child prostitution, or the production of child abuse material where the complainant was under the age of 16 years cannot be directed to attend and give evidence ib committal proceedings: s. 83 Criminal Procedure Act.

Witnesses who cannot be required to give evidence only if there are 'special reasons ... in the interests of justice'

The magistrate should not require a witness in an offence involving violence (eg attempted murder, reckless wounding, reckless inflict grievous bodily harm, abduction, robbery, sexual assault) to give evidence unless there are 'special reasons ... in the interests of justice': s. 84 Criminal Procedure Act. The phrase 'in the interests of justice' has been held in another context to refer to incorporate 'as a paramount consideration that an accused person should have a fair trial' : Chapman v Gentle (1986) A Crim R 29.

'Special reasons'

Special reasons may include where the Crown case is weak, ID in issue, inconsistent versions, victim's willingness to testify: Baines v Gould (1993) 67 A Crim R 297. Special reasons may include where the complainant in a sexual assault case is vague about the dates of the offences: Kennedy (1997) 94 A Crim R 341, TS v George (1998) 5 Crim LN [843]. This applies to indictable matters which can be dealt with summarily unless summary jurisdiction is actually offered: Kant (1994) PD [261], CN [152].

Substantial Reasons

For other types of offences, the magistrate should not require a witness to give evidence unless there are 'substantial' reasons in the interests of justice: s. 82 Criminal Procedure Act.

The following case law relates to previous versions of this provisions. 'Substantial reasons' is 'obviously much wider' than special reasons: Kennedy (1997) 94 A Crim R 341. 'Substantial' does not mean special. It is not necessary to show that the case is exceptional or unusual. It may be that substantial reasons could be shown in a majority of cases: Losurdo v DPP (1998) 44 NSWLR 618, (1997) 101 A Crim R 196 (approved by the Court of Appeal in Losurdo (1998) 44 NSWLR 618, 103 A Crim R 189), this decision appears to have the specific approval of the former Attorney General: see 'Committals in NSW' (2000) 74 ALJ 24).

It is necessary to show that the reasons 'have substance in the context of the nature of committal proceedings and the provisions of the Justices Act relating to them': Losurdo (1998) 103 A Crim R 189.

'Substantial reasons' can include a case where cross-examination might substantially undermine the credit of a significant prosecution witness: Losurdo v DPP (1998) 44 NSWLR 618. They can also include a case where the matters to be the subject of cross-examination go only to the exercise of the discretion of the trial judge (and thus strictly outside the jurisdiction of the magistrate): Losurdo v DPP (1998) 44 NSWLR 618. The availability of 'Basha' type voir dires and pre-trial applications at trial is no justification for not permitting cross-examination at the committal: Dawson v DPP [1999] NSWSC 1147. The magistrate needs to consider separately in relation to each witness whether the witness should be required: Hanna v Kearney (1998) 5 Crim LN [867]. 'Substantial reasons' might include narrowing the matters in dispute: Hanna v Kearney.

In JW v DPP [1999] NSWSC 1244 Simpson J said:

It is not possible to define the boundaries of "substantial reasons" in this context: Losurdo, C of A, pp 622, 632. A potential narrowing of the issues to be determined at trial, if the defendant is committed, is within the term; so also is the possibility of establishing the foundation for a challenge to the admission or admissibility of evidence (Hanna p 8; Losurdo, C of A pp 631-2); the possibility of significantly undermining the credibility of a Crown witness (Losurdo, C of A p 631); clarification of the evidence proposed to be called so as to avoid a defendant being taken by surprise at a trial (Losurdo, C of A, p 631); and the opportunity of gaining relatively precise knowledge of the case against the defendant (Hanna, p 5).

In Sim v Magistrate Corbett [2006] NSWSC 665 Whealy J. said (at para [20]) of these applications:

20 I shall now set out, in summary form, my understanding of a number of the relevant principles. Because of its brief nature, this statement will not be as elegantly expressed as the full statement of the principles in earlier decisions. Secondly, I will not attempt to summarise every principle arising from previous authority. Thirdly, I will emphasise, where necessary, matters that are of significance to the present dispute. I take the relevant principles to be as follows: -

1. The purpose of the legislation is to avoid delays in the criminal process by unnecessary or prolix cross-examination at committal.

2. The onus is on the defence to satisfy the Local Court that an order should be made directing the attendance of witnesses. 

3. The process is an important part of the committal proceedings. The refusal of an application may have a significant impact upon the ability of the defendant to defend himself. As well, the prosecution has a real interest in ensuring only appropriate matters are sent for trial. 

4. In relation to matters falling within s 91 of the Criminal Procedure Act 1986, the defendant must show that there are reasons of substance for the defendant to be allowed to cross-examine a witness or witnesses. 

5. The obligation to point to substantial reasons is not as onerous as the reference to “special reasons” in s 93; nevertheless it raises a barrier, which must be surmounted before cross-examination will be permitted. 

6. Each case will depend on its own facts and circumstances. It is not possible to define exhaustively or even at all what might, in a particular case, constitute substantial reasons. It may be a situation where cross-examination may result in the discharge of the defendant or lead to a successful no-bill application; it may be a situation where cross-examination is likely to undermine substantially the credit of a significant witness. It may simply be a situation where cross-examination is necessary to avoid the defendant being taken by surprise at trial. The categories are not closed and flexibility of approach is required in the light of the issues that may arise in a particular matter. 

7. Substantial reasons might exist, for example, where the attendance of a witness is sought to enable cross-examination in respect of a matter which itself might give rise to a discretion or determination to reject evidence at trial. 

8. The expression “substantial reasons” is not to be ascertained by reference to synonyms or abstract dictionary definitions. The reasons advanced must have substance in the context of the committal proceedings, having particular regard to the facts and circumstances of the particular matter and the issues, which critically arise or are likely to arise in the trial. 

A witness cannot be required for cross-examination if the Crown indicates that the Crown no longer relies on the evidence: DPP v Tanswell (1998) 103 A Crim R 205. Where a witness has been required for cross-examination because of particulars matters, normally cross-examination will be restricted to those matters.

Committals: Taking of Evidence

If a witness is directed to give evidence, that evidence is to be given orally (including the evidence in chief) unless the parties consent or there are substantial reasons in the interests of justice why the evidence should not be given by tendering the statement (ss. 85 and 86 Criminal Procedure Act).

Evidence at a committal must be taken in the presence of the defendant unless the defendant is excused or if the defendant is not present for any good or proper reason: s. 87 Criminal Procedure Act.

Committals: Open, Closed, and Non-Publication Orders

Generally, committal proceedings are to be in open court, that is open to the public and the media: s. 57 Criminal Procedure Act.

This general rule is subject to some important statutory and common law exceptions. In particular, under the Court (Suppresion and Non-Publication Orders) Act (2010) courts can make suppression or non-publication orders as to the identity of the accused, a witness, or any party to proceedings, or as to the evidence in proceedings, for a limited period. In sexual assault cases (in particular in this context indecent assault), the court can close the court (s. 291 Criminal Procedure Act) and can also forbid the publication of part or all of the evidence (s. 292 Criminal Procedure Act). Such an order can include suppression of the name of the accused: Crampton v DPP (NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was held that the interests of the accused were relevant in determining whether or not to make an order forbidding publication: Nationwide News v District Court of NSW (1996) 40 NSWLR 486.

At common law, the power to make non-publication orders is more limited. The name of an accused can be suppressed if it is necessary to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565.

Committals: Costs
Costs can be awarded if the defendantis discharged or if the defendant is committed for trial or sentence on a different charge to that contained in the Court Attendance Notice: s. 116 Criminal Procedure Act. The application for costs must be made on the day when the charge is dismissed or : Fosse (1989) 42 A Crim R 289. Costs will only be awarded if the proceedings were initiated without reasonable cause or bad faith or the investigation was unreasonable or improper: s. 117 Criminal Procedure Act. There is no power to award costs in commitals under the Costs in Criminal Cases Act: DPP v Howard (2005) 64 NSWLR 139.


Effect of a No Bill
A no bill will only justify a stay of later proceedings if there is a degree of double jeopardy (such as a case being no billed during the course of the trial): Mellifont (1992) 64 A Crim R 75, Swingler (1995) 80 A Crim R 471. See also Regina v Burrell [2004] NSWCCA 185. In particular if there is a no bill after discharge at committal, the Crown will not be prevented from filing a further ex officio indictment: D v Regina [2016] NSWCCA 60 (not currently available on the internet).

Counsel's Brief.
Police who search an advocate's papers may be in contempt of court even if they believe that it contains documents suspected of being stolen: MacDonald and Shilling (1993) 70 A Crim R 478.

Local Court Flow Chart

Following a reader's suggestion, I have prepared a Local Court flow chart.

2/. Trial Procedure and Appeals

(a) Subpoenas.

Legitimate Forensic Purpose.
Counsel calling upon the subpoena should be able to identify with precision the legitimate forensic purpose for which the document is sought: Saleam (1989) 39 A Crim R 406, Alister v The Queen (1983-4) 154 CLR 404. It must be 'on the cards' that the documents would assist the defence case. A report by a principal Crown witness about the case is an example of such a document, even if nothing is known about its contents: Alister at 414, 451. Prima facie anything which might provide for proper and fruitful cross-examination is allowable: Maddison v Goldrick [1976] 1 NSWLR 651 esp at 663-4, Saleam. For example, in a case where the prosecution relied on only a small proportion of a large group of a large group of intercepted calls, there was held to be a legitimate forensic purpose in requiring production of the other tapes: Regina v Taylor (2007) 169 A Crim R 543.

It is not a 'legitimate forensic purpose' to want to check if the Law Enforcement (Controlled Operations) Act has been complied with: AG v Chidgey [2008] NSWCCA 65.

Width.
A subpoena will be set aside if it is too wide, for example if it requires production of all documents relating to a particular subject area (Small (1938) 38 SR (NSW) 564) although the words 'relating to' in themselves are not necessarily fatal: Spencer Motors v LNC [1982] 2 NSWLR 921. Once the documents are produced it is too late to take this objection: Saleam.

Public Interest Immunity.
When public interest immunity is claimed, the court must weigh up the public interest in non-disclosure with the public interest in the administration of justice. In a criminal case it is sufficient if the accused can establish that the documents will materially assist his case: Alister.

Special Classes of Public Interest Immunity.
Some classes of evidence will not be required to be disclosed unless the evidence is necessary to establish the innocence of the accused:

• identity of informers (Cain v Glass (1985) 3 NSWLR 231, Meissner (1994) 76 A Crim R 81), even if known to the accused (AG v Stuart (1994) 75 A Crim R 8), unless would help to show the accused is not guilty (D v National Society for Prevention of Cruelty to Children [1978] AC 171, Smith (1996) 86 A Crim R 308, Abdullah [1999] NSWCCA 188 esp at paras [22] to [23]).
• location of listening posts, provided there is evidence that at the time of arrest and trial the owner objects: Rankine (1986) 83 Cr App R 19, Johnson (1989) 1 All ER 121
• arguably not methodology (Brown (1988) 87 Cr App R 52).

Costs.
It seems that costs cannot be ordered in favour of a party who successfully opposes production of documents under subpoena: Stanizzo v Complaint [2013] NSWCCA 295 and Ansett Holdings (Qld SC, (1997) 94 A Crim R 7) but compare Carter v Mallesons (WA FC 15/7/93).

(b) Trial Procedure

Adjournments.
Normally an unrepresented accused should be granted an adjournment if he can prove that it was through no fault of his own: Dietrich v The Queen (1993) 177 CLR 292, 67 ALJR 1 (1992) 64 A Crim R 176, Small (1994) 72 A Crim R 462. Lack of an adequate interpreter may suffice to quash a conviction: Saraya (1994) 70 A Crim R 515. Where the Crown seeks an adjournment, the court can tell the Crown that the adjournment will not be granted unless the Crown agrees to pay costs: Moseley (1992) 65 A Crim R 452.

Constitutional Guarantee of Jury Trial.
Under s. 80 of the Constitution a person tried on indictment for a Commonweath matter is guaranteed jury trial even if he consents to summary trial: Brown v The Queen (1986) 160 CLR 171, 60 ALJR 257. Verdicts must be unanimous: Cheatle v The Queen (1993) 177 CLR 541, 67 ALJR 76 esp at para [73]. This does not mean that there must be 12 jurors: Brownlee v The Queen (2001) 207 CLR 278, 75 ALJR 1180.

Judge Alone Trial.

A person can elect to be tried by judge alone if the DPP consents: s. 132 Criminal Procedure Act. The judge alone election must be made no later than 28 days before the trial, except by leave of the court: s. 132A Criminal Procedure Act. The election is made by the accused signing a Judge Alone Election under s. 132 Criminal Procedure Act. If the DPP does not consent to the judge alone procedure, the judge may still order a judge alone trial if the accused consents and it is in the interests of justice to do so: s. 132 (4) Criminal Procedure Act. The provision states that the court may refuse the application if the crial will involve the application of community standards, such as reasonableness, negligence, indecency, obscenity, or dangerousness (s. 132 (5) Criminal Procedure Act). A judge can also order a judge alone trial if there is a substantial risk of jury tampering: s. 132(7) Criminal Procedure Act.

Where the accused seeks a judge alone trial, and the prosecution opposes it, there is no presumption in favour of a judge alone trial, nor does the accused have a burden of proof to establish that there should be a judge alone trial, although there is an evidentiary onus: Regina v Belghar [2012] NSWCCA 86 at para [96]. The fact that the accused elects to be tried by judge alone is a relevant factor in determining whether or not a judge alone trial would be in the interests of justice: Regina v Simmons and Moore (No. 4) [2015] NSWSC 259, approved in Redman v Regina [2015] NSWCCA 110 at para [13]. There is no consensus in the cases that where there are issues of credibility that factor militates strongly in favour of a jury trial: Regina v Simmons and Moore (No. 4) [2015] NSWSC 259 at para [75], approved by the NSW Court of Criminal Appeal in Redman v Regina [2015] NSWCCA 110 at para [14]. In Redman the Court of Criminal Appeal held that it was an error of law to reject an application for a judge alone trial on the basis of an assumption that a jury was a superior tribunal of fact in a word against word case (at para [17]).

There cannot be a judge alone trial in a prosecution under a Commonwealth law, because of s. 80 of the Constitution: Brown v The Queen (1986) 160 CLR 171, Alqudsi v The Queen [2016] HCA 24 esp at para [115].

The accused can withdraw his consent to a judge alone trial at any time before trial by signing and filing an Election under s. 132A (3) Criminal Procedure Act. It appears that an accused cannot withdraw his election to be tried judge alone after the trial has commenced: Regina v Hevesi-Nagy [2009] NSWSC 755.

The judgment justifying a verdict in a judge alone trial must refer to the relevant principles of law including warnings of which a jury would be directed to take into account: s. 133 Criminal Procedure Act, Fleming v The Queen (1999) 197 CLR 250, 73 ALJR 1.

Stay of Proceedings
A permanent stay of proceedings will only be granted in an extreme case: Jago v District Court (NSW) (1989) 168 CLR 23 at 34. It is necessary to show that the continuation of proceedings would involve an involve unacceptable injustice or unfairness, or be so unfairly and unjustifiably oppressive as to constitute an abuse of process: The Queen v Edwards (2009) 255 ALR 399 esp at [23]. The High Court in a unanimous judgment has said that a statement of Mason and Toohey JJ. in The Queen v Glennon (1992) 173 CLR 592 (at para [28]) that 'a stay of proceedings will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences' as an authoratative statement of principle: Dupas v The Queen [2010] HCA 20 at para [18].

A stay of proceedings until particulars were supplied was upheld in Compston (1993) PD [216]. A temporary stay of proceedings was granted where there had been considerable publicity about similar but unrelated sexual assault allegations in Re K [2002] NSWCCA 374.

A long delay in instituting proceedings of itself (even of over 30 years) will not justify a stay, unless there is evidence of prejudice to the accused: Birdsall (NSW CCA 3/3/97). A stay of proceedings was granted when a matter was not reached 5 times and witnesses and evidence disappeared: Nicholson (1998) 5 Crim LN [881]. A stay was refused where Crown exhibits had disappeared in Roberts (1999) 106 A Crim R 67. In The Queen v Edwards (2009) 255 ALR 399 the High Court allowed an appeal against a stay of proceedings in a 6 year old case where the exhibits had gone missing. In RM v Regina [2012] NSWCCA 35 the CCA upheld a decision to refuse to grant a stay in a 20 year old sexual assault special hearing because of the difficulty in obtaining evidence of the appellant's mental health. In TS v Regina [2014] NSWCCA 174 the Court of Criminal Appeal granted a stay in a 37 year old complaint where the accused was 77 years old and in ill health. Similarly a refusal to grant a stay in a 30 year old complaint (where a complaint was made, then proceedings discontinued, then recommenced) in was upheld (Hogan (a pseudonym) v Regina [2019] NSWCCA 125).

Duplicity
No one count in an indictment should charge more than one offence or it is duplicitous: Molloy [1921] 2 KB 364, Morrow and Flynn (1990) 48 A Crim R 232, S v The Queen (1989) 168 CLR 266, 45 A Crim R 221, Stanton v Abernathy (1990) 48 A Crim R 16, Walsh v Tattersall (1996) 188 CLR 77, 88 A Crim R 496. This applies to individual acts of sexual intercourse: Khouzame and Saliba (1999) 108 A Crim R 170. Each element of the offence must be stated in the indictment: Mai (1991) 60 A Crim R 49.

Inconsistent Counts

An indictment can contain mutually exclusive or inconsistent counts: Thomson and Dann (2002) 134 A Crim R 252.

Indictments.

The Crown is required to present an indictment within 4 weeks after committal: s. 129 Criminal Procedure Act. However the court has a discretion to permit the trial to proceed even if the indictment is filed out of time: s. 129(4) and JSM v Regina [2010] NSWCCA 255.

The time for presentation of an indictment can be extended by order of the court, but cannot be extended after the time for filing an indictment has expired: rule 53.10F of the District Court Rules. If the indictment is not presented within the relevant time, the court may proceed with the trial, adjourn the proceedings, or take such other action as the court thinks fit.

The indictment must be filed in the court registry and a copy must be served on the accused or his legal representative within 14 days of filing the indictment: Rule 53.10D of the District Court Rules. After an indictment is presented, it may not be amended unless the accused consents or with leave of the court: s. 20 Criminal Procedure Act. The prohibition applies to substituting a fresh indictment: s. 20(3) Criminal Procedure Act. It also applies to ex officio indictments: Sepulveda [2003] NSWCCA 131.

The indictment can be amended at nearly any time during a trial if the amendment does not cause an injustice to the accused (s. 21 Criminal Procedure Act, s. 22 Criminal Procedure Act, Stuart (1996) PD [195], and MM v R [2011] NSWCCA 262), but not after verdict and conviction: Lewis (1992) 63 A Crim R 18 at 27. It will be rare for the Crown to be refused eave to amend the indictment before the start of the trial: Regina v Lykouras [2005] NSWCCA 8 esp at para [27].

In a single trial, there can only be one indictment: Swansson and Henry (2007) 168 A Crim R 263.

Signing Indictments

An indictment can be signed by the Attorney General, the Solicitor, the Director of Public Prosecutions, a deputy DPP, or a Crown Prosecutor, or a person authorised in writing to sign indictment: s. 126 Criminal Procedure Act. If the indictment is signed by a private Crown prosecutor not so authorised ( it seems few private Crowns are so authorised), any trial or conviction which follows is a nullity: Janceski (2005) 64 NSWLR 10.

Pre Trial Disclosure Generally

In cases where there is no order for pre-trial disclosure, there are still limited requirements for pre-trial disclosure.

Prosecution Obligation of Disclosure

Under the Bar Rules, prosecutors are required to disclose to the defence all material which could constitute evidence relevant to the guilt or innocence of the accused (see rule 66). At common law, the Crown is obliged to inform the defence of any material which could be sensibly seen as:

(1) to be relevant or possibly relevant to an issue in the case;
(2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).

including previous inconsistent statements and previous convictions of Crown witnesses: Bradshaw (1997) 4 Crim LN [702] (WA CCA), Reardon (2004) 60 NSWLR 454, 146 A Crim R 475 , Spiteri (2004) 61 NSWLR 369 , Livingstone (2004) 150 A Crim R 117.

Material in a victim impact statement should be disclosed to the defence prior to the trial if it contains material which was sufficiently solid to cause reasonable prosecutors to think that cross-examination based on the information might elicit answers materially affecting the credibility of the witness: Lewis-Hamilton (Vic CCA 8/4/97). The prosecution does not have an obligation to produce the psychiatric records of a prosecution witness not already in the possession of the Crown: Marwan v DPP [2019] NSWCCA 161.

In England it has been held that Crown is not obliged to supply the defence with prior inconsistent statements of defence witnesses: Regina v Brown (H of L) (1998) AC 367.

Defence Obligations of Pre trial Disclosure

Similarly, even if there is no order for pre-trial disclosure, the defence needs leave of the court to call evidence of alibi unless a Notice of Alibi was served on the DPP at least 42 days before the trial is listed for hearing: s. 150 Criminal Procedure Act. The notice must contain names and addresses of witnesses to be called in support of the alibi. See the paragraph headed 'Alibi' below. The defence must also give notice of an intention to rely on the defence of substantial impairment in a murder trial at least 35 days before the date for trial under s. 151 Criminal Procedure Act. See the paragraph headed 'Notice' in the Chapter on 'Defences'.

Orders For Pre-Trial Disclosure

Under amendments which came into force on 1 September 2013, both the prosecution and the defence are required to make pre-trial disclosure in accordance in accordance with a timetable set down by the court: s. 141 Criminal Procedure Act.

In the District Court, under Practice Note 9 (District Court Practice Notes can be downloaded here), unless the Court otherwise orders, the following time table applies:

• prosecution disclosure no later than 3 weeks before the date for trial;
• defence disclosure no later than 10 days before the date set for trial
• prosecution response before thedate set for trial.

In The Supreme Court, under revised Practice Note 2 (which can be downloaded here) unless the Court otherwise orders, the following timetable applies:

• prosecution disclosure no later than 8 weeks before the trial date;
• defence response no later than 5 weeks before the trial date;
• prosecution response to the defence response no later than 3 weeks before the date for trial;
• pre-trial conference before the judge two weeks before the trial date

Prosecution Disclosure Where an Order is Made For Pre Trial Disclosure

The prosecution disclosure should include (s. 142 Criminal Procedure Act):

(a) a copy of the indictment

(b) a statement of facts

(c) copies of statements of all witnesses proposed to be called at the trial by the prosecution

(c1) a copy of any recorded statement the prosecutor intends to tender

(c2) a copy of any transcript of a recording the prosecution intends to tender

(d) copies of all documents proposed to be tendered by the prosecution

(e) if the prosecution proposes to tender a summary of evidence, a copy of that sumary

(f) copies of any document which the prosecution proposes to tender

(g) a copy of chart or explanatory material which the prosecution proposes to tender

(h) if any expert witness is to be called by the Crown, a copy of each report of that witness relevant to the prosecution or defence case

(i) any document, information or any other thing that would be reasonably regarded as relevant to the prosecution or defence case

(j) a list identifying any document, information or other thing which would reasonably be regarded as being relevant to the case and which is not in the possession of the prosecution, with information about where this material might be located

(k) a copy of any information in the possession of the prosecutor that is relevant to the reliability or credibilty of any prosecution witness

(l) a copy of any information, document, or other thing in the possession of the prosecution that would reasonably be regarded as being adverse to the credibilty or credit of the accused

(m) a list of witnesses identifying the statements of those witnesses who are going to be called at trial by the prosecution

There is a continuing obligation upon the prosecution to disclose: s. 147 Criminal Procedure Act.

Defence Response Where an Order is Made For Pre Trial Disclosure

The defence Response is to include (s. 143(1)):

(a) the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,

(b) the nature of the accused person’s defence, including particular defences to be relied on,

(c) the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,

(d) points of law which the accused person intends to raise,

(e) notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following:

(i) a statement of a witness that the prosecutor proposes to adduce at the trial,
(ii) a summary of evidence that the prosecutor proposes to adduce at the trial,

(f) a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g) a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment),

(h) if any expert witness is proposed to be called at trial by the accused, a copy of each report by that witness relevant to the case and on which the accused intends to rely,

(i) notice as to whether the accused proposes to raise any issue with continuity of custody in telation to any proposed prosecution exhibit,

(j) notice of any significant issue the accused proposes to raise regarding the form of the indictment, severabilityof charges or separate trials for the charges,

(k) any requests for edits of any recording or transcripts,

Paragraphs (g) to (k) only apply to cases where the indictment is presented or filed after 2 November 2019: Criminal Procedure Amendment (Pre-trial Disclosure) Act (2018).

If the Court orders, the defence response is to also include (s. 143(2)):

(b) if the prosecutor disclosed an intention to adduce evidence at the trial that has been obtained by means of surveillance, notice as to whether the accused person proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,

(c) notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(e) notice as to whether the accused person proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,

(g) notice of any consent the accused person proposes to give under section 184 of the Evidence Act 1995 (formal admissions).

Prosecution Response to the Defence Response

The prosecution must indicate what expert evidence is in dispute and what material which the defence has indicated it wishes to tender will be objected to: s. 144.

Sanctions for Non-Compliance with Pre-Trial Disclosure

Sanctions for non-compliance with pre-trial disclosure include:

The court may not prevent an accused from adducing evidence or comment on the accused's non-compliance unless the prosecution has complied with the pre-trial disclosure requirements: s. 146 Criminal Procedure Act.

If an accused fails to comply with the requirements of diclosure, the prosecution or any other party with leave of the court can make comment, and the court or jury draw such unfavourrable inferences as appear proper: s. 146A Criminal Procedure Act.

Late service of expert reports by the Crown

The late service of expert reports by the Crown may lead to a miscarriage of justice: Haoui v Regina [2008] NSWCCA 209.

Withdrawing a Plea.
A plea of guilty can be withdrawn if the defendant shows that otherwise there has been/would be a miscarriage of justice: Chiron [1980] 1 NSWLR 218 at 235, Boag (1994) 73 A Crim R 35 at 36. A plea of guilty is regarded as an admission to all the legal ingredients of the offence: Sagiv (1986) 22 A Crim R 73. In order for the defendant to establish that a plea of guilty to be withdrawn, he must demonstrate that there there is some circumstance which shows that the plea was not attributable to a genuine consciousness of guilt: Boag at 37.

Where a defendant has told his lawyer 'I am not guilty but I'll plead guilty', for example because he wants to get a discount for his plea, the authorities indicate that he may not be able to withdraw his plea subsequently. When a client gives instructions that he wishes to plead guilty on such a basis, the lawyer should get signed written instructions to that effect. There is a helpful discussion of this problem in Regina v Allison (2003) 138 A Crim R 378 at 384 under the heading 'I am not guilty but I'll plead guilty'.

Circumstances which may support the withdrawal of a plea include:

• where the plea has been entered pursuant to a material mistake (Sagiv at 80, Boskovitz (1996) PD [268])
• where the defendant did not appreciate the nature of the charge (Boag at 37, Ferrer-Esis (1991) 55 A Crim R 231, Pauli (1991) 55 A Crim R 297)
• if the facts presented are different to those pleaded to (Chow (1992) 63 A Crim R 316 at 320)
• where there is no evidence upon which the defendant could have been convicted (Boag at 37)
• where fraud or threats or other impropriety caused the plea to be entered (Boag at 37)
• exceptionally where there has been an erroneous ruling on evidence leading to a plea (Chiron, Marchando (2000) 110 A Crim R 337). A plea of guilty will only be permitted to be withdrawn because of an erroneous ruling on evidence in exceptional circumstances: Toro-Martinez (2000) 114 A Crim R 533 .
• where there has been a miscarriage of justice (Chiron)

The onus is on the accused to show that there has been a miscarriage: Boag (1994) 73 A Crim R 35.

If the plea of guilty has been entered during the course of the trial, and the judge has accepted the plea under s. 157 Criminal Procedure Act, there is no discretion in the trial judge to later allow the plea to be withdrawn: Hura (2001) 121 A Crim R 472 .

Plea Bargaining.
The Crown can accept a plea to any lesser charge of which the accused could be lawfully convicted: s. 153 Criminal Procedure Act, Andrew Foster Brown (1989) 44 A Crim R 385, Chow (1992) 63 A Crim R 316. The judge cannot reject a plea unless something suggests that the plea is not genuine: Maxwell v The Queen (1996) 184 CLR 501. The judge is not bound by an agreement between the parties as to the factual basis of the plea: GAS and SJK v The Queen (2004) 217 CLR 198. The Crown will be permitted to withdraw acceptance of a plea where to do otherwise would bring the system of justice into disrepute: Filioemaha (2003) 138 A Crim R 299.

Separate Trials.
An application for separate trials can be made at any time (s. 21 Criminal Procedure Act) although it is preferable to make the application prior to the trial. There may be an application for a separate trial in two situations:

• firstly, where an accused is trying to have tried separately different counts he/she is facing
• secondly where an accused in a joint trial is attempting to be tried separately from his/her co-accused.

As to the first situation, in sexual assault trials at least, there should be separate trials unless the evidence is admissible as tendency or coincidence evidence ('similar fact'): De Jesus v The Queen (1986) 68 ALR 1, Sutton v The Queen (1984) 152 CLR 528 (Brennan).

As to the second situation, prima facie the rule is that where a number of people are charged with committing the same crime, they should be tried together: Webb and Hay v The Queen (1994) 181 CLR 41 (esp para 25), Regina v Dellapronta and Duffield (1993) 31 NSWLR 123. The applicant has the onus of showing that a 'positive injustice' would be caused if there was a joint trial: Middis, Hunt J, u/r 27/3/1999, Patsalis and Spathis (1999) 107 A Crim R 432.

There was some authority that where there was a cut-throat defence (that is, each accused blaming the other), there should be a separate trial (Farrell and Cotton (1990) 48 A Crim R 311). However the more recent trend of cases is that in where there is a cut throat defence, there should be a joint trial, unless there was some 'special or other' feature which required separate trials: Ali v The Queen (2005) 214 ALR 1, 79 ALJR 662 (see esp para [58]), and Fernando [1999] NSWCCA 66. There should be separate trials when

a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial (Middis, Hunt J, u/r 27/3/1991, quoted in Dinh (2000) 120 A Crim R 42 at para [28]. In Pham [2004] NSWCCA 190 at paras [39] to [40] it was doubted that it was necessary to show that the case against the accused was weaker. It was also said that 'immeasurably' in this context means 'significant, though incommensurate' or disproportionate.

Multiple Trials

Where an accused faces a number of separate trials, there is no principle that the most serious matter should be tried first: Giovannone (2001) 119 A Crim R 519.

Change of Venue.
In order to obtain a change of venue the accused must satisfy the court that there is a reasonable possibility that the accused will not get a fair and impartial trial: Webb and Hay v The Queen (1992) 181 CLR 41, 64 A Crim R 38. The power to change venue is given by s. 30 Criminal Procedure Act. The onus is on the applicant toshow why there ahould be a change invenue, but it is not necessary to show 'exceptional circumstances', and the onus is not to be regarded as a heavy one: Regina v Turnbull [2016] NSWSC 189 esp at paras [68] to [72].

Joint Trials.
In a joint trial the judge should present the case against each accused separately: Masters (1992) 59 A Crim R 445 at 448.

Where Does the Accused Sit?

The judge can require the accused to enter the dock or can allow him to remain in the well of the court: s. 34 Criminal Procedure Act. This matter is very much in the discretion of the judge: see Regina v Dirani (No. 7) [2018] NSWCCA 945.

Absence of the accused

Generally the accused must be present at every stage of the trial: Jamal v Regina [2012] NSWCCA 198 esp at para [35]. However, if the accused absconds during the course of the trial, the judge has a discretion about whether the trial should continue or not: Williams v Regina [2012] NSWCCA 286. It is not clear what the responsibilities of counsel are in this situation, that is whether to withdraw or to proceed to appear, but probably the better view is that counsel should assume his or her instructions have been withdrawn.

Jury Challenges.
The accused has 3 peremptory challenges to jurors (s. 42 Jury Act). The Crown has the same number of challenges as all the accused put together: s. 42 Jury Act, Dickens [1983] 1 NSWLR 403. The old rule that there were more challenges in a murder trial has been abolished.

The DPP Guidelines state that the right to challenge 'should never be exercised so as to attempt to select a jury that is not representative of the community, including as to age, sex, ethnic origin, religious belief, marital status, or economic, cultural or social background' (DPP Guideline 25).

Discharge of Individual Jurors

An individual juror can be discharged through death, illness or any other reason. A criminal trial can proceed with as few as 10 jurors, and with as few as 8 if the prosecution and the accused both consent or if the trial has been going for at least 2 months: s. 22 Jury Act. Where a juror is discharged through illness, it is not necessary for the judge to be satisfied that the juror will not recover quickly: Wu v The Queen (1999) 199 CLR 99.

The judge must make 2 separate steps: first, to determine whether the individual juror should be discharged, and then to determine whether or not the trial can continue with the reduced jury: Wu v The Queen (1999) 199 CLR 99. The jury can be reduced below 12 in Commonwealth cases despite the constitutional guarantee of 'trial by jury': Brownlee v The Queen (2001) 207 CLR 278.

For an example of a case where a judge presiding over a long trial discharged the whole jury when one juror sought to be discharged at an early stage of the trial, see Regina v Khan (No. 5) [2019] NSWCCA 56.

A juror should not be discharged where there is evidence that that juror would, if not discharged, have voted for an acquittal: BG v Regina [2012] NSWCCA 139 esp at para [103].

Plea After Empanelling.
If there is a plea of guilty during a trial, the jury can be discharged and the judge can find the accused guilty: s. 157 Criminal Procedure Act. At common law, once the jury is empanelled, only it can find the accused guilty, even if there is a plea: Ross (1994) PD [175]. Once a judge has made a finding that the accused is guilty under s. 157, the judge has no discretion to allow the plea of guilty to be withdrawn: Regina v Hura (2001) 121 A Crim R 472 .

Plea by Co-Accused in Front of the Jury.
It is an error to have a co-accused plead in front of the jury: Velardi (NSW CCA 24/5/96). The plea of a co-accused is not evidence against the accused: Cowell (1985) 24 A Crim R 47 at 49. This also applies to an alleged co-offender who becomes a Crown witness: Nale [2002] NSWCCA 31. However, although it is preferrable if the plea is entered in the absence of the jury, if the plea is enteredin front of the jury, and appropriate directions are given, no succesful ground of appeal may arise: Humphries v Regina [2015] NSWCCA 319.

Crown Opening.
If the evidence falls short of the Crown opening there may be an entitlement to a discharge: Owen (1991) 56 A Crim R 279. The Crown is apparently entitled to refer to itself as bringing charges on behalf of the community: Skipworth [2006] NSWCCA 37.

A complainant about the tender of an agreed 'Court Book' of documents agreed by the parties was rejected in Roach v Regina [2019] NSWCCA 160.

Defence Opening

The defence is entitled to make an opening address immediately after the Crown's address, whether or not the defence intends to call evidence, limited to setting out the matters in dispute and the nature of the defence: s. 159 Criminal Procedure Act. The limitations on this right to make an opening were stressed in Regina v MM (2004) 145 A Crim R 148.

Duties of Prosecutors.
The Bar Association Rules require that prosecutors:

• not press for a conviction beyond putting the case fully and firmly (rule 63)
• not endeavour to inflame or prejudice the jury (rule 64)
• advise defence counsel of the existence of any witness who he does not propose to call but who he considers relevant to the defence (rule 66)
• not act as an advocate for a vindictive sentence or a sentence of a particular magnitude but be ready to assist the court to avoid appellable error (rule 71)
• inform the accused all material which could constitute evidence relevant to the guilt or innocence of the accused (rule 66, DPP Guideline 18)
• inform the defence of the record and any indemnities and criminal record of any informers the Crown intends to call (DPP Guideline 16)

It has been held that cross-examining a defence witness about an old prior criminal conviction, without informing the defence, or seeking a ruling from the trial judge, was a 'serious departure from the standards of conduct rquired by a Crown prosecutor': Montgomery v Regina [2013] NSWCCA 73 esp at para [6].

Transcript.
A conviction was quashed in Khalifeh (1996) 85 A Crim R 68 where the appellant in a 32 day case had no transcript.

Pursuant to s. 55C of the Jury Act the jury can be given access to a copy of the transcript if the jury requests, however this power should be exercised with caution and it is usually preferable to refer to the evidence in the summing up: Fowler [2000] NSWCCA 142.

Choice of Witnesses.
The Crown alone has the responsibility of whether or not to call a particular witness: The Queen v Apostilides (1984) 154 CLR 563. The Crown should not refuse to call a witness simply because the witness' testimony does not support the Crown's theory of the case. The Crown must be satisfied, normally from a conference, that the witness cannot give relevant and truthful evidence: Kneebone (1999) 47 NSWLR 450, [1999] NSWCCA 279, Geitonia and Gertos v Inner West Council [2016] NSWCCA 186. The judge only has the power to call a witness in exceptional circumstances: Apostilides, Griffis (1996) 91 A Crim R 203.

The DPP Guidelines state that 'the Crown should generally call all apparently credible witnesses whose evidence is essential to the complete unfolding of the Crown case or is otherwise material to the proceedings' (DPP Guideline 26). 'Mere inconsistency of the testimony of the witness with the Crown case is not grounds for refusing to call the witness' (DPP Guideline 26).

Witness not Called at Committal.
If a witness not called at committal is called at trial, the trial judge may order a voir dire: Basha (1989) 39 A Crim R 337, Sandford (1993) 72 A Crim R 160.

The Voir Dire

Where evidence needs to be called to determine whether or not evidence should be led before the jury, the evidence on the preliminary question of admissibility is led in the absence of the jury in what is called a 'voir dire'. The voir dire can be held before the jury is empanelled: Rule 53.11 District Court Rules.

Reading the Evidence of a Witness Unavailable at Trial
If a witness is dead or so ill as to not be able to travel or is absent from Australia, the depositions of the committal can be read: s. 285 Criminal Procedure Act, formerly s. 409 Crimes Act. This includes statements tendered at committal: s. 289 Criminal Procedure Act. It is not sufficient for s. 285 to apply if the witness cannot give credible evidence, or cannot give evidence without endangering the witness' health (Sinanovic (CCA 4/11/92), Brotherton (1993) 65 A Crim R 301). Section 285 only applies to admit evidence at the committal. It does not apply to a transcript of testimony at trial: Li [2003] NSWCCA 386.

Where an accused is unrepresented at committal, a statement is inadmissible under s. 285 unless the accused is advised of his rights including the right to seek an adjournment: s. 89 Criminal Procedure Act, Adamiczka (1994) 71 A Crim R 291.

There is no discretion in NSW to exclude such evidence unless the prejudice outweighs the probative value: Lynch [1979] 2 NSWLR 775, Gorman v Fitzpatrick (1987) 32 A Crim R 330, Stackelroth (1996) 86 A Crim R 438 but see Scott and Barnes [1989] 2 WLR 924 , Radford (1993) 66 A Crim R 210, Mendham (1994) PD [14]. The defence can require the deposition to be read with no discretion to reject such evidence: s. 286 Criminal Procedure Act, Stackelroth (1996) 86 A Crim R 438. The jury should be directed that it has not seen the witness to judge his credibility, or had the opportunity to cross-examine him, and the evidence should be scrutinized with great care: Horan [1951] VLR 249, Nablerski (1989) 44 A Crim R 434, Scott and Barnes, Mendham.

The depositions are taken to be a true record unless the contrary is proved: s. 287 Evidence Act.

Objections By Judge.
A trial judge should not reject questions not objected to unless eg the question is unfair: Lars and Da Silva (1994) PD [273].

Asking questions of witnesses

The CCA has stressed that caution must be exercised by the judge in questioning witnesses: see FB v Regina [2011] NSWCCA 217 esp at para [91].

The jury should not be invited to formulate questions to be asked of witnesses: Tootle v Regina [2017] NSWCCA 103.

Failure to give reasons

Failure of a judge to give reasons for a ruling is an error of law but it will not generally lead to a succesful appeal if the appeal court can independently come to the same conclusion: Madubuko v The Queen [2011] NSWCCA 135 esp at para [22].

Trials: Open, Closed, and Non-Publication Orders

Generally, trials are to be in open court, that is open to the public and the media. This general rule is subject to some statutory and common law exceptions. The name of an accused can be suppressed if it is necessary to secure the proper administration of justice: C v R (1993) 67 A Crim R 562 at 565.

The publication of the name of a child who is a victim, defendant, or witness in criminal proceedings is generally prohibited, unless the child is over 16 and consents, or if the child is under 16 and the court consents. The court can also permit publication of the name of a child convicted of a serious indictable offence: (s. 15A Children (Criminal Proceedings) Act).

In sexual assault cases (in particular in this context indecent assault), the court can close the court (s. 291 Criminal Procedure Act) and can also forbid the publication of part or all of the evidence (s. 292 Criminal Procedure Act). Such an order can include suppression of the name of the accused: Crampton v DPP (NSW C of A, 7/7/1997). In a decision about the predecessor of this section, it was held that the interests of the accused were relevant in determining whether or not to make an order forbidding publication: Nationwide News v District Court of NSW (1996) 40 NSWLR 486. Where there are back to back trials of trials involving the same accused, the court may grant non-publication orders: Nationwide News v Qaumi [2016] NSWCCA 97.

Power to Direct an Acquittal.
A trial judge has no power to direct an acquittal on the basis that the evidence that the evidence is unsafe and unsatisfactory. However if the identification evidence is unsatisfactory he may take that evidence away from the jury and then direct an acquittal: R (1989) 44 A Crim R 404. It is not enough that an innocent hypothesis can't be excluded: JMR (1991) 57 A Crim R 39. It is not sufficient to give a directed acquittal in a circumstantial case simply because there is a hypothesis consistent with innocence: JMR at 44. The judge should consider whether or not there is some evidence which, if accepted, could prove each element of the offence beyond reasonable doubt: Regina v Bilick and Starke (1984) 36 SASR 322 at 337, 11 A Crim R 452, and Regina v XHR [2012] NSWCCA 247.

On a no case submission, the Crown case is taken at its highest, and evidence favouring the accused is disregarded: Doney v The Queen (1990) 50 A Crim R 157.

The end of the 'Prasad' Direction

Formerly, there was a power for a trial judge to direct a jury, at the end of the Crown case, that the jury was entitled to return a verdict of 'not guilty' at any time, without waiting for the defence case, addresses, or the summing up: The Queen v Prasad (1979) 2 A Crim R 45. Unfortunately, the High Court has determined that hits useful direction should not be given in DPP Reference (No. 1 of 2017) [2019] HCA 9.

Alternative Counts.
If the Crown does not raise an alternative count it should not be left to the jury: Pureau (1990) 47 A Crim R 230, Cameron [1983] 2 NSWLR 66, King (2004) 59 NSWLR 515 at para [110]. The principles as to leaving alternative counts to a jury were helpfully summarised in King (2004) 59 NSWLR 515 at para [110]. It is undesirbale for an alternative count to be raised by the trial judge for the first time in the summing up (that is, after addresses): Sheen v Regina [2011] NSWCCA 259 esp at para [90].

If the jury is satisfied beyond reasonable doubt that the accused is guilty of one of two alternative counts, it need only be satisfied on balance as to which of the two applies: Gilson (1991) 53 A Crim R 344.

In a case where an accused is indicted with an offence (such as murder) and a less serious offence (such as manslaughter) is left as an alternative, it appears that no verdict can be taken on the lesser count unless the jury returns a unanimous verdict of not guilty on the more serious count: Stanton v The Queen [2003] HCA 29, 198 ALR 41.

Dock Statement.
There are no dock statements for people charged after 10th June 1994: s. 31 Criminal Procedure Act. The accused can give a dock statement and sworn evidence: Lister (1981) 1 NSWLR 110. However the accused can't say in the witness box that everything he said in the dock was true: Tangmahsuk (1987) 7 NSWLR 551. The judge may permit notes to be referred to but not read: Schneidas (1981) 4 A Crim R 101. A corporation may be able to make a dock statement: Elite Wood Products (Kinchington J 28/8/91, u/r, doubted by the CCA, Bulletin 63).

It appears that a document can be tendered in or after the dock statement if the accused would have been able to tender it if giving sworn evidence: See Lun and Welsh (1932) 49 WN 116, Howard (1932) 49 WN 196.

Alibi.
The defence needs leave of the court to call evidence of alibi unless a Notice of Alibi in writing was served on the DPP at least 21 days before the trial is listed for hearing: s. 150 Criminal Procedure Act. The notice must contain names and addresses of witnesses to be called in support of the alibi.

The Crown can normally tender an alibi notice as part of its case, though each case depends on its facts: Rossborough (1985) Cr App 139. For this reason great care should be taken in drafting an alibi notice.
The jury should be directed that:

• if they accept the alibi they must acquit
• if the alibi might reasonably be true they must acquit
• if they reject the alibi they must assess the evidence as a whole: Amyouni (CCA 18/2/88 u/r), followed in Steeden (1994) PD [363].

The jury should also be directed that alibi witnesses can be genuinely mistaken, that even false alibis can be put forward for many reasons, and that the fact of a false alibi can only be used if the sole reason for the fabrication was to deceive them: Visser (1994) PD [378].

In Skondin [2005] NSWCCA 417 (esp at para [47]) it was held that a trial judge should be slow to refuse leave to call alibi evidence where no notice has been given unless the Crown has suffered significant prejudice which could not be addressed without significant disruption of the trial. See also Evans (2006) 164 A Crim R 489.

Direction to Convict.
The judge can direct the jury to convict if there is no dispute about any of the ingredients of the offence: Yager v The Queen (1976-7) 139 CLR 28. If manslaughter arises as an issue on the facts must be left to the jury but there is no obligation to put to the jury the option of a merciful verdict of manslaughter. However the jury strictly has the power to return such a verdict even if that option is not left to them: Gammage v The Queen (1969) 122 CLR 444 .

Addresses.

Counsel for the accused address after the Crown addresses: s. 160 Criminal Procedure Act. Counsel for the accused address in the reverse order of the indictment (and thus also in the reverse order of the order of cross-examining), but see Webb & Hay (1992) 64 A Crim R 38 at 66.

In Regina v Sam and Sam [2009] NSWSC 561 the trial judge permitted the Crown to provide the jury with a document containing references to questions and answers in the accused's record of interview relating to a particular topic.

The Crown address should not suggest that because there was not greater cross-examination of a Crown witness, or that the witness's evidence was consistent with his prior statements to the police. The Crown should also not express a personal opinion (such as 'sounds like a girlfriend to me'): Rugari (2001) 122 A Crim R 1 , Liristis (2004) 146 A Crim R 547. As a rule of thumb, the Crown is not entitled to address the jury in terms of a direct expression of personal opinion, but can address a submission if it is expressed in terms of putting a distance between personal opinion and the submission (for example, 'you might think that' or 'the Crown's submission is that').

The Crown should not put a submission to the jury that because of their gender the jury female jurors have experience about a particular matter: GDD and NJC v Regina [2010] NSWCCA 62 (per Grove J at para [37]).

The Crown should not address the jury to the effect that witnesses have lied if that proposition has never been put to the witnesses: Teasdale (2004) 145 A Crim R 345.

The NSW CCA has said that these features either alone or in combination in a Crown address are worthy of censure in Regina v Livermore (2006) 67 NSWLR 659 at para [31]:

(i) A submission to the jury based upon material which is not in evidence.

(ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury.

(iii) Comments which belittle or ridicule any part of an accused’s case.

(iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit.

(v) Conveying to the jury the Crown Prosecutor's personal opinions.

As to a Crown prosecutor addressing on evidence not admissible against a particular accused in a joint trial, where that evidence is not admissible against that accused, see Charbaji v Regina [2019] NSWCCA 28 at paras [95] to [97].This case also contains a useful summary of cases where an address by a Crown prosecutor has been held to have breached these rules. See also Hughes v Regina [2015] NSWCCA 330 esp at paras [265] to [275].

See also Regina v Causevic [2008] NSWCCA 238 especially at para [4], GDD and NJC v Regina [2010] NSWCCA 62, Geggo v Regina [2013] NSWCCA 7 esp at para [225].

Summing Up.
The summing up should include a concise summary of the evidence on each legal issue: Zorad (1990) 19 NSWLR 91. This is so despite the existence of s. 161 Criminal Procedure Act, which says that the trial judge need not summarise the evidence: Piazza (NSW CCA u/r 16/6/97).

Directions based on differences between the accused's evidence and matters put to witnesses by counsel for the defence are 'fraught with peril and should therefore only be used with much circumspection' : Manuta (1990) 54 SASR 17, cited in Birks (1990) 19 NSWLR 677 at 691. If such directions are given, the jury should be told that there may be many explanations for such differences, such as counsel misunderstanding his /her instructions or simply overlooking the instructions. See also Picker [2002] NSWCCA 78.

Recently the High Court in McKell v The Queen [2019] HCA 5 said that the judge's 'right' to comment did not go so far as to permit the judge to comment on how a disputed question of fact should be resolved (see esp para [46]). In particular, the practise of a judge stating that 'they might think' that a particular conclusion was correct, followed by a reminder that the jury was free to ignore the suggestion if they felt differently, was criticised (at para [50]). The discretion to comment is located squarely within the judge's duty to assist the jury with a fair and accurate statement of the case presented by each party (at para [48]).The issue is whether the trial judge's comments created a danger or substantial risk that the judge's comments might persuade the jury of the accused's guilt (at para [42]). See also Lai v Regina [2019] NSWCCA 305.

The summing up should put the fairly put the defence case to the jury: Davis (1997) 4 Crim LN [731]. It should contain a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence: Meher [2004] NSWCCA 355 esp at para [77], Wong v Regina [2009] NSWCCA 101, Maraache v Regina [2013] NSWCCA 199, Lai v Regina [2019] NSWCCA 305 esp at para [87]. It should not normally include arguments not put by the Crown: Meher at para [87]. It should not include a demolition of the defence case: Taleb [2006] NSWCCA 119. In particular, it was held that a summing up in which the trial judge referred to each of the arguments made by the accused, and then gave the juries answers or explanations some of which were not made by the Crown, was unbalanced: Mulholland v Regina [2018] NSWCCA 299, esp at para [118].

Sending the Jury Out.
The jury should be told that they should not commence considering their verdicts until applications have been made for redirections: Lean & Aland (CCA 22/2/93), McCormack (1996) 85 A Crim R 445.

Chronologies

In complex cases juries may be provided with a chronology not as evidence but as an aide memoire: Regina v Petroulias (No. 34) [2007] NSWSC 1462.

Inadmissible Material to Jury Room.

A conviction was quashed where inadmissible material was sent to the jury room: Rinaldi (1993) 68 A Crim R 284, Rudkowsky (1993) PD [2], Vong [2001] NSWCCA 20 but see Minarowska (1995) 83 A Crim R 78. The test is whether or not it could be said that the jury would have returned the same verdicts if the irregularity had not occurred: Regina v Marsland (NSW CCA 17/7/1991), referred to in Qing An v Regina [2007] NSWCCA 53. Where a juror brought newspaper clippings of a trial into the jury room an appeal was not upheld: Carr v Regina [2015] NSWCCA 186.

A conviction was quashed when the judge read inadmissible material to the jury: Phipps and Young (1995) PD [389].

Similarly an unauthorised visit by some jurors to a crime scene led to a conviction being quashed: Skaf (2004) 60 NSWLR 86.

In a case where a juror accessed the fact of a prior trial of the accused for another murder, the conviction of the accused for another murder was quashed: K (2003) 59 NSWLR 431, 144 A Crim R 468.

Sending the Jury Home

Normally juries are allowed to 'separate' or go home at the end of the day: s. 54 Jury Act. An argument that this did not apply to Commonwealth trials was rejected by the High Court: Brownlee v The Queen (2001) 207 CLR 278, 75 ALJR 1180. The Court of Criminal Appeal has said that the jury should be brought in and the jury told they can go home, with a warning not to discuss the matter outside the jury room: Radju (2000-2001) 53 NSWLR 471.

Communications Between Judge and Jury

Before a judge communicates with the jury, it is preferable that the judge communicates with counsel about what the judge is going to say, and then communicates with the jury in open court: Colville (2003) 137 A Crim R 543.

Jury Notes

The judge should disclose the contents of notes from the jury to the parties, unless the note involves a personal matter unconnected with the trial, or includes references to voting numbers: Burrell v Regina [2007] NSWCCA 65 esp at paras [261 to [ 265], Black [2007] VSCA 61, Smith v The Queen [2015] HCA 27 esp at para [46] to [47], and [50].

Bias.
The test for bias is whether or not a fair minded member of the public would have a reasonable suspicion of bias of the judge or jury: Webb and Hay v The Queen (1994) 181 CLR 41, 68 ALJR 582, (1994) 73 A Crim R 258. Even a juror being related to a witness may not suffice: Schumacher (1996) PD [192]. A juror speaking to a Crown witness may not automatically suffice to lead to a conviction being quashed: Minarowska (1995) 83 A Crim R 78.

Recently the CCA set ot the following four principles in relation to a submission that there is a reasonable apprehenstion of bias (footnotes omitted) in Tarrant v Regina [2018] NSWCCA 21 at para [9]:

1. First, there is the postulate of the “fair-minded lay observer”. Use of that expression reflects the principle that it is public confidence in the administration of justice which is sought to be preserved and not, as explained in Johnson v Johnson “the assessment by some judges of the capacity or performance of their colleagues.”

2. Secondly, the test has been described as “objective”, by which is meant a third party’s assessment of the judge’s conduct and capacity, and not, as with actual bias, an assessment of the judge’s own state of mind.

3. Thirdly, there is said to be a two-stage process required; it is necessary to articulate “the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision-making."

4. Fourthly, use of the term “might” lowers the burden of proof below that of probabilities. Thus the court need not be satisfied that the fair-minded lay observer “would” have such an apprehension; nor need any apprehension in the mind of the observer itself involve a state of satisfaction on the probabilities.

The Exhortation.
If the jury appears to be having trouble reaching a unanimous verdict, the judge may give the jury the 'exhortation'. The exhortation to a jury should not refer to public cost and inconvenience: Black v The Queen (1993) 179 CLR 44, 68 ALJR 91 at 95, (1993) 69 A Crim R 248, Yuill (1994) 7 A Crim R 314. Black contains a pro forma exhortation in the following terms:

"Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence.

Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another's opinions about the evidence and test them by discussion. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one.

Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict."

The judge must tell the jury that each juror has a duty to give a verdict according to the evidence, and that if the juror cannot honestly agree with the other jurors he should not. Failure to give this direction is appellable: Timbery v Regina [2007] NSWCCA 355.

It has been held that where a jury indicates that it is having difficulty or inability reaching a unanimous verdict, a Black direction should be given, in particular so that jury understands that the judge may discharge the jury: Joyce (A Pseudonym) v Regina [2019] NSWCCA 187 esp at paras [35] and [67].

A conviction was quashed in a case where a judge gave a Black direction but then told the jury that at the end of 8 hours deliberation, the jury could give a majority verdict: RJS v Regina [2007] NSWCCA 241. See also Hunt v Regina [2011] NSWCCA 152. However, a direction to the jury that in certain circumstances a majority vedict can be returned (without reference to time limits) is acceptable: Ingham v Regina [2011] NSWCCA 88 esp at para [85].

Can a jury which cannot agree be discharged before being directed that majority verdict would be accepted?

It has been held that a trial judge has no power to discharge a jury on the basis that the jury are unable to agree on a verdict, before a majority verdict direction has been given: Villis v Regina [2014] NSWCCA 74 esp at para [16]. However, there is authority that a judge may discharge a jury which has clearly indicated that it cannot agree before the majority verdict direction is given, in order to avoid a miscarriage of justice: Regina v BC [2018] NSWDC 124.

Unanimous/Majority Verdicts

Until recently (26 May 2006) verdicts had to be unanimous in New South Wales. However, as from that date, in a state criminal trial, a majority verdict can be returned if

These preconditions are mandatory. In particular, it is not sufficient that the jury has deliberated for 8 hours, the trial judge must make a determination that the jury has deliberated for a reasonable time given the nature and complexity of the case: AGW v Regina [2008] NSWCCA 81, Hanna v Regina (2008) 191 A Crim R 302. It also seems that lunch hours are not to be taken into account as deliberation time, although time getting redirections is taken as part of deliberation time: AG, BR v Regina [2014] NSWCCA 46. A failure to examine one of the jurors on oath will also render the majority verdict liable to be quashed on appeal: RJS v Regina (2007) 173 A Crim R 100, T v Regina [2016] NSWCCA 48 esp at para [51](currently not available on th Supreme Court website).

'Majority verdict' means a verdict of 11-1 in a case where there are 12 jurors, or a verdict of 10-1 in a case where there are 11 jurors.

There cannot be a majority verdict in a Commonwealth matter (s. 55F (4) Jury Act). That confirms the existing law. It was held that because of s. 80 of the Constitution for a person tried on indictment for a Commonweath matter the verdicts must be unanimous: Cheatle v The Queen (1993) 177 CLR 541, 67 ALJR 76. This does not mean that there must be 12 jurors: Brownlee v The Queen (2001) 207 CLR 278.

A jury may be discharged if there has been evidence on oath from one or more of the jurors that the jury us unlikely to reach a unanimous verdict: s. 56 Jury Act. It has been suggested that where a juror is examined for the purposes of s. 56, this should be done in front of the whole jury: Villis v Regina [2014] NSWCCA 74 at para [26].

Verdict.

A verdict should not be taken before a jury question has been answered: Alameddine v Regina [2012] NSWCCA 12 esp at para [45].

Once a verdict has been given and the jury have been charged the verdict cannot be set aside by the trial judge even if the jury reached the verdict under a misapprehension: Biggs (WA SC 10/9/97, (1997) 4 Crim LN [760]).

Chatting to the Press

The practice of Crown Prosecutors making statements to television and radio was specifically criticised in Sheikh (2004) 144 A Crim R 124 at paras [113] to [114].

Costs

Where an accused is acquitted or discharged either in a trial or an appeal, the accused can ask the judge for a certificate for costs (s. 2 Costs in Criminal Cases Act). The certificate must specify that if the prosecution had been in possession of all the relevant facts, it would not have been reasonable to commence the proceedings; and that any act of the defendant which contributed to the institution of the proceedings was reasonable in the circumstances (s. 3 Costs in Criminal Cases Act). A certificate can be granted where the the proceedings are no-billed between arraignment and the commencement of the trial proper: JC v DPP [2014] NSWSC 228. The certificate should be forwarded to the Director General of the Attorney-General's Department who may determine the amount of costs to be paid (s. 4 Costs in Criminal Cases Act).

The relevant considerations are set out in Mordaunt v DPP (2007) 171 A Crim R 510 at para [36].

No certificate can be given under the Costs in Criminal Cases Act for Commonwealth offences: Solomons v District Court of NSW (2002) 76 ALJR 1601

If the jury is discharged (except in the case of a hung jury) the judge can be asked to provide a certificate under s. 6A of the Suitors Fund Act, certifying the reason for the discharge of the jury, and that such discharge was not attributable to the fault of the accused or his legal representatives. This site includes a Precedent for a Suitors Fund Certificate.

(c) Appeals from the Local Court


District Court Appeals.

Appeals from the Local Court to the District Court must be brought within 28 days of conviction order or sentence (s. 11 Crimes (Appeal and Review) Act) but leave may be granted to appeal within a period of 3 months: (s. 13 Crimes (Appeal and Review) Act). An appeal against conviction after the appellant has pleaded guilty or has not appeared can only be made with the leave of the court: (s. 12 Crimes ( Appeal and Review) Act).

The appeal is by way of rehearing on the transcript of evidence heard before the magistrate unless the court gives leave on the grounds that it is in the interests of justice for further evidence to be given: s. 17- 18 Crimes (Appeal and Review) Act. Victims of an offence involving violence can only be required to give evidence if it is established that there are special reasons why the witness should attend to give evidence. Other witnesses are only required to give evidence if there are substantial reasons why the witness should give evidence (s. 19). The judge should consider whether each individual witness should be called, and not make a ruling that all witnesses be called 'en bloc': Charara (2006) 164 A Crim R 39 at para [27].

The rehearing is not a rehearing 'de novo' because normally the evidence that can be called on appeal is limited to the evidence before the magistrate: Gianoutsos v Glykis (2006) 65 NSWLR 539 esp at paras [24] to [31]. Although the reasons given by the magistrate are not part of the evidence it has been held (obiter dicta) that they can be taken into account particularly on the assessment of the credibility of witnesses: Charara v Regina (2006) 164 A Crim R 39 at paras [23] to [24]. It is submitted that this part of the decision in Charara was wrongly decided. The judge should also recognise the advantage of the magistrate who had the advantage of seeing and hearing the witnesses give evidence: Charara v Regina (2006) 164 A Crim R 39 at paras [18] to [19].

The question for the District Court judge hearing a conviction appeal is not whether it has been demonstrated that the magistrate was in error, but whether the District Court judge has been satisfied beyond reasonable doubt of the guilt of the accused: Wood v DPP [2006] NSWCA 240 esp at para [7].

Where the judge intends to make a finding about the appellant's credit different to that of the magistrate based on the depositions at least the judge should warn the parties and give them a chance to call oral evidence: Barendse v Comptroller of Customs (1990) 93 A Crim R 210.

If an application is made to withdraw the appeal this must be done separately: Reischauer v Knoblanche (1987) 10 NSWLR 40. If the judge intends to increase the sentence he should give an indication that this is his/her intention to give the appellant an opportunity to withdraw the appeal: Parker (1993) 65 A Crim R 209.

An appeal from the decision of the District Court on an appeal can be made where the District Court Judge states a question of law to the CCA (s. 5B Criminal Appeal Act).

An appeal from the decision of the District Court on an appeal from the Local Court can be made to the Court of Appeal where the judgement amounts to a jurisdictional error, or the process represents a denial of procedural fairness: Ex parte Blackwell; Re Hateley [1965] NSWR 1061, Toth v DPP [2014] NSWCA 133. An appeal to the Court of Appeal is available under s. 69 Supreme Court Act. There is a privative clause preventing appeals from District Court appeals in cases other than jurisdictional error and denial of procedural fairness: s. 176 District Court Act; Blackwell, Toth v DPP [2014] NSWCA 133 esp at para [6], Stephens v DPP [2019] NSWSC 761.

Appeals from the Local Court to the Supreme Court.

Stated cases, statutory prohibition and mandamus have been abolished as means of appeal from the local court to the Supreme Court. There can now be an appeal by the the defendant as of right against a conviction order or sentence from the Local to the Supreme Court but only on a question of law alone: s. 52 Crimes (Appeal and Review) Act. If there is a question of fact or of mixed law and fact there can only be an appeal with leave of the court: s. 53 Crimes (Appeal and Review) Act

Appeals against orders made in committals, or interlocutory orders in summary proceedings, can only be about questions of law alone, and only with leave of the court: s. 53(3) Crimes (Appeal and Review) Act. Appeals against rulings on evidence will not normally be entertained because they are not appeals against an 'order' of the court. However the appeal will be entertained if the effect of the ruling was to prevent the Crown from making its case: Lisoff [1999] NSWCCA 364, Cheng (1999) 48 NSWLR 616, Haddad & Treglia (2000) 116 A Crim R 312.

It appears that there is no right of appeal against the decision of a magistrate not to require a prosecution witness to attend a committal and give evidence: Thompson v DPP [2014] NSWSC 522.

The prosecution alone may appeal direct to the Supreme Court in relation to sentences, stays of proceedings, and costs order, but only in relation to matters of law alone: s. 56 Crimes (Appeal and Review) Act. A complaint that a sentence was manifestly inadequate has been held not to be aground that involves a matter of law alone: Morse (Office of State Revenue) v Chan [2010] NSWSC 1290.

(d) Appeals to the Court of Criminal Appeal

Time to Lodge Notice of Intention to Appeal.

A Notice of Intention to Appeal or a Notice of Intention to Apply For Leave to Appeal must be lodged within 28 days of conviction or sentence (s. 10 Criminal Appeal Act (1912)). The Court has the power to extend the time to appeal: s. 10(1)(b) Criminal Appeal Act. Under Rule 3, the Notice of Appeal can be signed by the appellant, his solicitor, or counsel.

Where a notice of intention to appeal has not been filed, the notice of appeal must be filed wihtin 3 months of conviction (in the case of a conviction appeal) or the sentence (in the case of a sentence appeal), unless to file the notice of appeal is extended by the Court: rule 3B Criminal Appeal Rules, McIlwraith v Regina [2020] NSWCCA 274 esp at para [4].

Where there has been a delay before a notice of intention to appeal is filed, the Court should extend the time to appeal if it would be in the interests of justice: Kentwell v The Queen [2014] HCA 37 esp at para [29], overruling the decision of Abdul v Regina [2013] NSWCCA 247 which held that in a case of long delay the applicant had to establish that unless leave to appeal was granted if otherwise a 'substantial injustice' would result.

It appears that there is no time limit on the filing of a Crown appeal, but late filing of a Crown appeal may lead to the Crown appeal being dismissed: O'Har (2004) 59 NSWLR 596.

The Notice of Intention to Appeal has effect for 6 months after the date it is filed, but this can be extended by the Court at any time before or after the expiry of that period: rule 3A. In other words, the filing of the Notice of Intention to Appeal gives practitioners 6 months to file the formal Notice of Appeal with grounds and the other documents referred to immediately below. Currently the Court of Criminal Appeal is being fairly ruthless about enforcing the 6 month time limit, and it is strongly recommended that practitioners enter the expiry date of the Notice of Intention to Appeal in their diaries.

Notice of Appeal

A Notice of Appeal or Notice of Application for Leave to Appeal must be filed during the period in which the Notice of Intention to Appeal has effect (see the preceding paragraph), or, if no such Notice has been filed, within 3 months of the date of conviction or sentence. This 3 month period can be extended by the Court before or after the expiration of the period: rule 3B.

At the same time as the Notice of Appeal is filed, the following documents must also be filed:

• grounds of appeal
• written submissions in support of the appeal
• a certificate filed by the appellant's solicitor that the transcript of the trial, the summing up, and the remarks on sentence is available
• a statement nominating the solicitor and counsel appearing for the appellant

(rule 23C).

Appeals Bail.
Bail will only be granted on appeal to the CCA or High Court only in 'special or exceptional circumstances': s.30AA Bail Act. 'Special circumstances' may not be constituted by the fact that the gaol term will expire before the appeal is heard: Chew (1992) 66 ALJR 209 but see Chew (No. 2) 66 ALJR 221.

Transcript

A transcript of the trial is furnished by the CCA registry of the trial: s. 21 Criminal Appeal Act. The transcript should include a transcript of the evidence, legal argument, judgments during the trial, counsel's addresses, the summing up, proceedings after conviction, and the remarks on sentence: rule 6 Criminal Appeal Rules.

Appeal to the Court of Criminal Appeal.

There is a right of appeal to the CCA on questions of law alone. Appeals on questions of fact or sentence will only be heard with leave of the court (s. 5 Criminal Appeal Act). The trial judge can also submit a question of law to the CCA: s. 5A.

Where the leave is required for an appeal, the client is called 'the applicant'. Otherwise he is called 'the appellant'.

Appeals against interlocutory judgments and rulings

The Crown can appeal against any interlocutory judgment or order to the Court of Criminal Appeal (s. 5F (2) Criminal Appeal Act). The Crown can appeal against a decision or ruling on evidence, if it eliminates or substantially weakens the Crown case: s. 5F(3A) Criminal Appeal Act. This includes evidence which the defence is seeking to tender which the Crown says was wrongly admitted: Regina v Burton [2013] NSWCCA 335. The Crown has the onus of establishing that the ruling has substantially weakened the Crown case: Regina v Shamouil (2006) 66 NSWLR 228 at para [30]. However, it has been held that if evidence of 'cogency or force' has been withheld in a case, even if that case is otherwise likely or even very likely to succeed, the Crown case has been substantially weakened: Regina v Shamouil (2006) 66 NSWLR 228 at para [37]. An appeal under s. 5F (3A) can be brought even if no jury has been empanelled: Regina v Ngatikaura (2006) 161 A Crim R 329 at para [50].

It has been held that a refusal to declare a witness unfavourable pursuant to s. 38 Evidence Act is not a ruling on the admissibility of evidence, and so cannot be the subject of a Crown appeal: Milakovic [2004] NSWCCA 199. The Crown cannot appeal against a judge's ruling in favour of the accused that he had succeeded in his plea of autrefois acquit: Stone (2005) 64 NSWLR 413 at para [71]. The Crown cannot appeal against a judge's direction to a jury that there is no case to answer: (Cheng (1999) 48 NSWLR 616 at 621-2).

The accused can appeal against any interlocutory ruling or order only if the trial judge certifies that the judgment or ruling an interlocutory judgment or order is fit for determination on appeal, or if the Court of Criminal Appeal gives leave: s. 5F (3) Criminal Appeal Act. For example, a refusal to grant a separate trial is an interlocutory order and can be the subject of a s. 5F appeal: DAO v Regina [2011] NSWCCA 63.

A 'judgment' is a decision of a court which determines the proceedings or an identifiable part of them and which is entered in the records of the court. An 'order' is a command of the court that something be done or not done: Steffan (1993) 67 A Crim R 506, KN v Regina [2017] NSWCCA 249 esp at para [52].

Very importantly, a ruling on evidence has been held not to be an interlocutory ruling or judgment: see Steffan (1993) 67 A Crim R 506, Bozatsis and Spanakis (1997) 97 A Crim R 296, Lisoff [1999] NSWCCA 364, Cheng (1999) 48 NSWLR 616, Haddad & Treglia (2000) 116 A Crim R 312, Kocer v Regina [2006] NSWCCA 328, EK v Regina [2009] NSWCCA 4, and DAO v Regina [2011] NSWCCA 63.

Similarly, a ruling that a particular defence is not available is not an interlocutory judgment: Adamson [2005] NSWCCA 7, nor can accused appeal against a failure to find that there is no case to answer: Lethlean (1995) 83 A Crim R 197. A refusal to allow a Basha inquiry (Regina v Basha (1989) 39 A Crim R 337) is not an interlocutory judgment or ruling which would give rise to a right of appeal: Nicholson v Regina [2017] NSWCCA 38 esp at para [40]. A decision to permit a witness to give evidence by AVL is not 'an interlocutory judgment or order': KN v Regina [2017] NSWCCA 249 esp at para [52].

A refusal to grant an adjournment may be a judgment or order from which a 5F appeal is available: Alexandroaia v Regina (1995) 81 A Crim R 286, as may a refusal to discharge a jury (Khalil v Regina [2020] NSWCCA 56).

The Court of Criminal Appeal has said that it will only interfere with a ruling made in the course of a trial in 'wholly exceptional circumstances': Natoli [2005] NSWCCA 292 at para [7].

Conviction Appeals

Under s. 6(1) Criminal Appeal Act, an appeal against conviction can be under one of three limbs, or a combination of them:

(1) the conviction was unreasonable, or cannot be supported having regard to the evidence;

(2) the judgment of the court should be set aside on the ground of the wrong decision on a question of law, or

(3) on any ground whatsoever there was a miscarriage of justice.

Conviction Appeals after a plea of guilty

An appeal against conviction after a plea of guilty will only be permitted in extreme circumstances, when there is a real doubt about the guilt of the accused. This will be so even if evidence has been wrongly admitted: Toro-Martinez (2000) 114 A Crim R 533.

Appeals after an unsuccesful appeal

If an appeal has been heard on the merits and dismissed, there is no right for a subsequent appeal under the Criminal Appeal Act: see Grierson v The King (1938) 60 CLR 431. However, if the appeal is not heard on its merits, and leave to appeal is refused, there is still a right to to make a further application for leave to appeal: Postiglione v The Queen (1997) 189 CLR 295 esp at 305, Lowe v Regina [2015] NSWCCA 46.

If an appeal has been refused on its merits, there may still be available an application for a review under the Crimes (Appeal and Review) Act.

Appeals where there has been no objection and Rule 4

The rules of evidence in the Evidence Act stating that certain types of evidence are not admissible mean 'not admissible over objection': Perish v Regina [2016] NSWCCA 89 esp at para [270].

Where no objection was made at trial, leave is required to argue the matter: rule 4.15 Supreme Court (Criminal Appeal) Rules. was suggested that it may be necessary to file an affidavit of counsel explaining why: Hines (1992) 24 NSWLR 737. However the CCA has said of this practice: 'But generally speaking it seems to me to amount to no more than an imposition on trial counsel for little, or no, good purpose' (Moussa (2001) 125 A Crim R 505). Rule 4.15 applies even if it is argued that the material is inadmissible on different grounds to those advanced at trial: Poniris v Regina [2014] NSWCCA 100 esp at para [55].

In order to obtain leave under rule 4.15, an appellant must first establish that there is an arguable case of error. Next, the appellant must establish that the error has led to a miscarriage of justice; that is, that the appellant may have lost a chance of acquittal which was fairly open to him: South v Regina [2007] NSWCCA 117 at para [34], Regina v Wilson (2005) 62 NSWLR 346 at paras [20] to [21], ARS v Regina [2011] NSWCCA 266 esp at para [148].

Appeals based on asserted incompetence of counsel

For an appeal based on the asserted incompetence of counsel, it is necessary to establish that there has been a miscarriage of justice, in the sense that theappellant has lost a chance of acquittal that was fairly open to him. Only in an exceptional case should an appeal court resort to subjective evidence about trial counsel's reasoning for a particular decision: Alkhair v Regina (2016) 255 A Crim R 419 esp at para [31].

In the opinion of the writer an appeal based on the asserted incompetence of counsel should rarely be argued.

Report by the Trial Judge

A trial judge can make a report about a trial the subject of an appeal: s. 11 Criminal Appeal Act. However this should generally be done if there are problems with the trial which do not appear on the face of the record: Sloane [2001] NSWCCA 421, Whyte v Regina [2019] NSWCCA 218, and Cummings v Regina [2019] NSWCCA 163 esp at paras [10] to [11]. The CCA is not obliged to have regard to a judge's report: SKA v The Queen (2011) 243 CLR 400, 85 ALJR 271. A report should not be supplied in a sentence appeal: Vos [2006] NSWCCA 234.

Errors of Fact

An error of fact in a sentence appeal can only be established if there was no evidence to support the finding, or the evidence was all the one way, or if the judge misdirected himself: O'Donoghue (1988) 34 A Crim R 397, Khouzame [2000] NSWCCA 505.

In two cases, Clarke v Regina [2015] NSWCCA 232 (esp at para [36]) and Hordern v Regina [2019] NSWCCA 138 Basten JA and Hamill J said that it was sufficient for a court of appeal to find that a ground of appeal had been made good if there was simply a finding that there was an error of fact that may have affected the sentence imposed. This approach was rejected in Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278 and in Azzopardi v Regina [2019] NSWCCA 306 esp at para [39].

Leave is required to argue an error of fact on appeal (s. 5 Criminal Appeal Act)

Asserted errors in discretionary judgments

Where the decision appealed against is a decision or ruling of a discretionary nature (for example, a decision not to exclude evidence on a discretionary basis, or a decision not to exclude propensity evidence), it is not sufficient if the appeal court would have reached a different decision, the appellant must demonstrate that there has been an error in exercising the discretion, such as acting on wrong principle, taking into account irrelevant considerations, failing to take into account relevant considerations, or mistaking the facts: House v The King (1936) 55 CLR 499.

Appeals against conviction

Under s. 6(1) Criminal Appeal Act, an appeal against conviction can be under one of three limbs:

(1) the conviction was unreasonable, or cannot be supported having regard to the evidence;

(2) the judgment of the court should be set aside on the ground of the wrong decision on a question of law, or

(3) on any ground whatsoever there was a miscarriage of justice.

See Filippou v The Queen (2015) 256 CLR 47 at para [8].

The second limb involves a miscarriage of justice in the sense of a departure from trial according to law: Filippou at para [13]). A wrong decision on a question of law includes misdirections on substantive law and misdirections on adjectival law (law as to procedure or evidence): Filippou at para [13]). Where there is an error of law under the second limb, and the court is satisfied that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him, the proviso will apply and the appeal will not succeed ( Filippou at [15]).

The third limb involves a finding that the appellant has not received a trial according to law or a fair trial: Filippou at para [14]. Any irregularity or failure to comply with a rules of evidence is a miscarriage within the third limb (Kalbassi v Western Australia [2018] HCA 7 at para [12]). fair trial, it will follow that there has been a substantial miscarriage of justice. However, where although there is an identified irregularity, the appellant has otherwise received a fair trial according to law, and has not been deprived of a chance of an acquittal that was fairly open to him, the proviso will apply: Filippou at para [15]).

As to the proviso see below.

The Proviso

Section 6 of the Criminal Appeal Act says that an otherwise successful appeal can be dismissed if the Court considers that there has been 'no substantial miscarriage of justice'. For the proviso to operate it was said that the Crown must show that the applicant has not lost 'a chance which was fairly open to him of being acquitted' (Mraz v The Queen (1955) 93 CLR 493 at 514) or 'a real chance of acquittal' (The Queen v Storey (1978) 140 CLR 364 at 376) or but for the admission of the evidence, a conviction was not inevitable (Crofts v The Queen (1996) 186 CLR 427).

It is now clear that it is a condition for the application of the proviso, that the appellate court is satisfied that the evidence properly admitted at trial proved beyond reasonable doubt that the appellant was guilty of the offence of which the jury convicted him: Weiss v The Queen (2005) 224 CLR 300 at para [44]. This is a 'necessary but not a sufficient' condition for the application of the proviso': Baiada Poultry v The Queen (2012) 246 CLR 92 esp at para [29].

In some cases the appellate court may not be able to determine whether or not guilt has been proved to the requisite standard: for example, cases turning on contested credibility, cases where a defence should have been left to the jury but was not, and cases where there was a wrong direction on the elements of the offence or a defence (Kalbasi v Western Australia [2018] HCA 7 at [15]). However, even where there is a misdirection on an element of an offence, the proviso may apply if that element was not significant in the way that the trial was run: Priday v Regina [2019] NSWCCA 272 esp at para [78].

In other cases,the test which is now applied is the following. It cannot be said that there is no substantial miscarriage of justice unless the appellate court is persuaded that the evidence properly admitted at the trial proved beyond reasonable doubt the accused's guilt: Weiss v The Queen (2005) 224 CLR 300 at para [44], Kalbasi v Western Australia [2018] HCA 7 at [13], See also Cooper v The Queen [2012] HCA 50 esp at para [21], Campbell v Regina [2014] NSWCCA 175 esp at [262], Charbaji v Regina [2019] NSWCCA 28 at [104].

In some cases there has been a disinclination to make use of the proviso even in otherwise strong Crown cases: Whittaker (1993) 68 A Crim R 476 at 484, Gilbert v The Queen (2000) 201 CLR 414 at [86]. The Court of Criminal Appeal said in Rees v Regina [2010] NSWCCA 66 at paras [19] to [20] that it was not aware of a case where the proviso had been applied where the case was one of oath against oath.

It is doubtful whether post-conviction admissions are relevant to the application of the proviso: TDP v Regina [2013] NSWCCA 303 esp at para [128].

Errors can be so fundamental that they exclude the operation of the proviso: Wilde v The Queen (1988) 164 CLR 365, 76 ALR 570. An example of such a case is a case where there has been a significant denial of procedural fairness: Weiss v The Queen (2005) 224 CLR 300 at para [45].

If the court has determined that there is no substantial miscarriage of justice, the appeal must be dismissed: Baiada Poultry v The Queen (2012) 246 CLR 92 at para [25].

Fresh Evidence.

In order to quash a conviction, fresh evidence on appeal must be

(a) credible

(b) such that it was not available with reasonable diligence at trial (Ratten v The Queen (1974) 131 CLR 510) and

(c) must be such that viewed with the evidence at trial a jury would be likely to entertain a reasonable doubt or a significant possibility that the jury acting reasonably would have acquitted (Gallagher v The Queen (1986) 160 CLR 392, Burton (1986) 24 A Crim R 169, Mickelberg v The Queen (1989) 167 CLR 259, esp at 402-3 (per Mason and Dawson JJ), and at 399 (per GibbsCJ) 43 A Crim R 182, and Chidiac v The Queen (1991) 171 CLR 432, 52 A Crim R 119).

The principles are summarised by Kirby J in Abou-Chabake (2004) 149 A Crim R 417 at para [63]. In a conviction appeal, a ground of appeal relying on fresh evidence will usually be framed this way: 'A miscarriage of justice resulted from the absence at the trial of fresh evidence'. Fresh evidence entitling a retrial may be evidence from the Royal Commission that the police committed perjury in other matters: McClaren (NSW CCA 22/10/96), Vastag (NSW CCA u/r 20/6/97), Baartman (NSW CCA u/r 30/6/97), Regina v Heuston (2003) 140 A Crim R 422.

As to fresh evidence on sentence appeals, the evidence must:

• be of such significance that the sentencing judge may have regarded it as having a real bearing on the sentence;
• the appellant did not know of or did not realise the significance of the material; and
• the appellant's legal advisers did not know of it

(see Sims (1995) 83 A Crim R 1, Goodwin (1990) 50 A Crim R 328 at 330, De Marco (1996) PD [284]).

Normally events that take place after sentencing are regarded as a matter for the executive, not the courts: Many (1990) 51 A Crim R 54 at 62, Moreno (1994) PD [583]. For example, changes in the conditions of custody after sentence are generally irrelevant: Baladjam v Regina [2018] NSWCCA 304 esp at para [224]. Another example is the effect of COVID on conditions of imprisonment in appealsagainst sentences imposed before the COVID outbreak: Borg and Gray v Regina [2020] NSWCCA 67.

There may be an exception for matters occurring after sentence where an offender was suffering from an illness such as AIDS at th time of sentencing, but that was not realised at the time of sentence, or its full significance was not appreciated, or there was an incorrect expectation that there would be a particular level of medical care available in custody: see Turkmani v Regina [2014] NSWCCA 186 at para [66], approved in Balajdam v Regina [2018] NSWCCA 304 at para [222]. The principles were restated, with a useful summary of the authorities,in Lissock v Regina [2019] NSWCCA 282.

New evidence

Where evidence was not called at the trial, and was either available to the accused or could have been avaioable with reasonable diligence, it is not admissible as fresh evidence. However, it may be admissible on appeal as 'fresh evidence' if it is of such cogency that it is shown that the accused is not guilty, or that the Court has a reasonable doubt as to the appellant's guilt: see Ratten v The Queen (1974) 131 CLR 510 esp at paras [19] to [25], Abou-Chabake (2004) 149 A Crim R 417 at para [63]

Convictions Unreasonable or Cannot Be Supported By the Evidence

This ground was previously referred to as the 'unsafe and unsatisfactory' ground, but should now be referred to (in particular in Grounds of Appeal) as 'The convictions are unreasonable and/or cannot be supported having regard to the evidence': Fleming v The Queen (1998) 197 CLR 250, 73 ALJR 1, 103 A Crim R 12, Maxwell (NSW CCA 23/12/98), Dwyer [1999] NSWCCA 47 esp at para [43].

This ground will be made out when the court on its own assessment of the evidence concludes that it was not open to the jury to be satisfied beyond reasonable doubt: Morris v The Queen (1987) 163 CLR 454, M v The Queen (1994) 181 CLR 487 esp at 493-5, 69 ALJR 83, (1994) 76 A Crim R 213, SKA v The Queen (2011) 243 CLR 400. In most cases a doubt experienced by an appellant court will be a doubt that the jury ought to have experienced, unless it is a case where the jury's observing the demeanour of a witness was capable of resolving the doubt: M at 493, Jones v The Queen (1997) 191 CLR 439, 72 ALJR 78 at 85. This is also the case where there is a judge alone trial: Filippou v The Queen [2015] HCA 29 esp at para [12]. The suggestion that a jury had an advantage over the CCA in assessing a circumstantial case appears to have been rejected by a majority of the CCA in Kaldor (2004) 150 A Crim R 271.

Generally, when considering an appeal on the unreasonable and/or cannot be supported having regard to the evidence ground, an appeal court is not required to watch recordings of the evidence: Pell v The Queen [2020] HCA 12 esp at para [36]. Where there is an appeal based on the unreasonable and inconsistent with the evidence ground, and important evidence is given by the tendering of video interviews, the CCA may in some cases but not all watch the videos rather an rely on the transcript: AZ v R [2018] NSWCCA 294.

Where there is an appeal against a conviction appeal in a judge alone trial, the test for whether or not the unsafe and unsatisfactory ground is made out basically the same as for a jury trial, but the CCA can take into account findings of the trial judge as to credibility: Arun v Regina [2010] NSWCCA 214.

The unreasonable conviction ground appears to include a defect in the summing up which which might lead the jury to be mistaken or misled: Gipp v The Queen (1998) 194 CLR 106.

It has been said in the NSW CCA that the fact that the appellant did not give sworn evidence makes it more difficult to succeed on this ground: see Gordon (1991) 57 A Crim R 413, Zammit (1999) 107 A Crim R 489, Suckling [1999] NSWCCA 36. The same principles were said to apply in a judge alone trial: Kurtic (1996) 85 A Crim R 57, Moody (NSW CCA 24/2/97). However this line of authority appears to have been overturned by the High Court in Dyers v The Queen (2002) 210 CLR 285 (see paras [22] (Gaudron and Hayne JJ agreeing generally with Callinan J), [60] (Kirby J) and [124] -[125] (Callinan J)).

Because the unreasonable and not supported by the evidence ground is a question of fact, leave is needed to argue it (s. 5 Criminal Appeal Act).

Inconsistent Verdicts.
A conviction may be quashed on the basis that it is inconsistent with a verdict of acquittal against the same accused but only if the appellant has established that the verdicts are an affront to logic and commonsense: MacKenzie v The Queen (1996) 190 CLR 348, 90 A Crim R 468.

In RAT (2000) 111 A Crim R 361 it was held that where the only direct evidence of the offences is the evidence of the complainant, if the jury finds the accused not guilty of one count the jury must find him not guilty of all counts. However in Markuleski (2001) 52 NSWLR 82 a 5 judge bench of the CCA said that this was true only if there was nothing at all which differentiated the counts which the jury accepted beyond reasonable doubt from those where the jury was not so satisfied. This approach was adopted by the High Court in MFA v The Queen (2002) 213 CLR 606. It has been said that the test is now 'whether as a matter of logic and reasonableness the court is satisfied, after considering all the relevant circumstances of the case, that there is an acceptable explanation for the differentiation between the divergent verdicts': NEK [2001] NSWCCA 392. If there is no such explanation, the verdicts are inconsistent.

There is a line of authority that failure of a jury to agree on a verdict cannot amount to an inconsistent verdict argument ground: PA v Regina [2015] NSWCCA 18. However, in Daaboul v Regina [2019] NSWCCA 191 the Court of Criminal Appeal accepted (with reservations) that where there is a conviction on one charge and a failure to agree on another charge, and the difference is incapable of logical explanation, the question of inconsistent verdicts may arise (see esp para [248]).

As to whether, having found there are inconsistent verdicts, there should be an acquittal or a new trial, see Bonat [2004] NSWCCA 240 at para [106].

The order of the Court after a succesful conviction appeal

Where there has been a succesful conviction appeal, the court has a discretion whether or not to order a new trial under s. 8 Criminal Appeal Act.

In general, where an appeal ground which succeeds is that the verdict(s) were unreasonable or cannot be supported by the evidence, or that the verdicts of the jury are inconsistent, the resulting order will generally be that the conviction be set aside and that a verdict of not guilty be substituted.

Where the appeal ground which is successful is that there has been an incorrect ruling on evidence, or procedural unfairness, or a misdirection in the summing up, the resulting order will generally be that there be a retrial. If there is inadequate evidence to support a conviction, a new rtrial will not be ordered: ST v Regina [2010] NSWCCA 5 at para [9]. However, if there is evidence in support of the charge, a new trial should be ordered, even in cases where the whole of the sentence has been served: Spiers v The Queen (2000) 201 CLR 603 at paras [103] to [104]. There may be cases where the CCA will enter a verdict of not guilty where the sentence imposed has been substantially served.

Post conviction admissions may be relevant to the question of whether or not a retrial should be ordered: TDP v Regina [2013] NSWCCA 303 esp at para [128].

Time to Count.
The court has a discretion whether or not to allow time to count after an appeal: s. 18(3) Criminal Appeal Act. In practice time to count has always been granted, but in theory time should ordinarily count only in arguable cases (Brennan [1974] 1 NSWLR 618) but not otherwise (Cutherberson [1974] 1 NSWLR 672, and Shutt (1987) 5 NSWLR 232).The Court has warned that in unarguable cases that time to count should not be allowed : Vai v Regina [2015] NSWCCA 303.

Appeals Against Sentence

Section 6(3) of the Criminal Appeal Act permits the Court of Criminal Appeal to impose a lesser sentence if 'some other sentence in law was warranted in law and should have been imposed'. It has been held that as a result it is not sufficient in a sentence appeal to establish that there has been an error of law in the sentence proceedings. It is also necessary to satisfy the court that some other sentence was warranted in law and should have been imposed: Simpson (2001) 53 NSWLR 704 at para [79]. In practice this means that in a sentence appeal by an offender, it is usually necessary to establish that the sentence is excessive and that there is an error of law.

Where an error of law is established, an appeal court should not then move to consider whether or not the error of law affected the sentence imposed. The appeal court should move to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601 esp at para [42]. It has been held that where there is a need to correct a backdate, it is not necessary to resentence afresh: Diri v Regina [2019] NSWCCA 319 at para [66]. In resentencing the applicant, the court should generally accept the primary judge's findings on disputed facts, and assessments of objective gravity (unless under challenge). However, the appeal court can take into account post sentencing factors: Turnbull v Regina [2019] NSWCCA 97 esp at para [44].

Where the Court, on considering resentencing, thinks that a longer sentence should have been imposed, the Court should not impose a longer sentence without giving the appellant the opportunity to withdraw the appeal (Kentwell at para [43]). The Court should only indicate the longer sentence which it would have imposed when some particular warrants it (see RO v Regina [2019] NSWCCA 183 esp at para [89], but note dissenting opinion of N Adams J).

The fact that a judge makes an error about the maximum penalty for an offence will justify leave to appeal, but it will only be a material error if the error effects the sentence imposed, and the appeal will only be allowed if there the Court is of the opinion that a lesser sentence should have been imposed. It is not necessary to establish that the the sentence was manifestly excessive: RLS v Regina [2012] NSWCCA 236 esp at paras [112] to [116].

The fact that a judge makes an error about the standard non-parole period may consitute a material error: Kershaw v Regina [2009] NSWCCA 19 esp at para [15], Portelli v Regina [2018] NSWCCA 28 esp at para [40]. This is the case even when the sentence is one of a number of matters sentenced in an aggregate sentence: Oncu v Regina [2020] NSWCCA 260 esp at para [26], and Qaumi, Qaumi and Qaumi v Regina [2020] NSWCCA 163 esp at para [440].

The Court of Criminal Appeal has made it clear that it will be slow to conclude that the assessment of objective gravity of an offence by the sentencing judge was incorrect: Regina v Mulato [2006] NSWCCA 282 esp at paras [37] and [45] to [46], Alkanaan v Regina [2017] NSWCCA 56 esp at para [57]. Where it is argued that the judge has made an error in the assessment of objective gravity, this should be a separate ground of appeal: Hurmz v Regina [2017] NSWCCA 235 esp at para [20].

Where the ground of appeal relied upon is that the sentence is manifestly excessive (or manifestly inadequate), it is necessary to demonstrate that the sentence was unreasonable or plainly unjust: Makarian v The Queen (2006) 228 CLR 357 at [25]. It is not an arguable ground of appeal to argue that a sentence was too severe: Mammone v Regina [2013] NSWCCA 95 at paras [27] to [28].

The Court of Criminal Appeal summarised the relevant principles this way in Thomson-Davis v Regina [2013] NSWCCA 75 at para [53]:

(a) A finding by an appellate court of manifest excess means that "the result embodied in the sentencing judge's orders was 'unreasonable or plainly unjust'": Hili at 538 [58]; House v. the King [1936] HCA 40; 55 CLR 499 at 505;

(b) That finding is a conclusion that "there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons": Wong at 605 [58];

(c) By its nature, the conclusion that a sentence is vitiated by manifest excess "does not admit of lengthy exposition": Hili at 539 [59]. However, it does not follow from this that "manifest error is fundamentally intuitive", it is not: Hili at 539 [60]. "[W]hat reveals manifest excess ... is consideration of all of the matters that are relevant to fixing the sentence": Hili at 539 [60];

(d) Where an offender alleges manifest excess, the Court of Criminal Appeal assumes that no specific error is alleged: Hili at 539 [61]. Accordingly, it is futile, indeed erroneous, to search for one.

(e) Subject to the adoption of the correct, cautious approach, a consideration of past sentences in closely comparable cases may highlight excess: a consideration of sentences which have in fact been imposed in similar cases does not establish a correct range, but may provide "a yardstick against which to examine a proposed sentence": Hili at 537 [54]; Director of Public Prosecutions (Commonwealth) v. De La Rosa [2010] NSWCCA 194; 243 FLR 28 at 98 [303] - [305] per Simpson J;

(f) "The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if a sentencing judge is not also told why those sentences were fixed as they were": Wong at 606 [59] (emphasis in the original). For this reason marked difference from sentences imposed in other cases does not of itself justify appellate intervention: Wong at 604 [58].

The principles in an appeal arguing manifest excess were also summarised (perhaps more succinctly) by Hoeben CJ at CL in JJ v Regina [2020] NSWCCA 165 at para [14]:

1   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3   it is not to the point that this Court might have exercised the sentencing discretion differently;

4   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

Appeal grounds which assert that the sentencing judge gave too much or insufficient weight to a particular factor have inherent problems because they involve a tacit concession that some weight was given to the factor; it then becomes a question of whether the weight given to the factor was outside the discretionary range: Stephens v Regina [2009] NSWCCA 240 esp at paras [16] to [18], Regina v Baker [2000] NSWCCA 85 esp at para [11], Regina v Majid [2010] NSWCCA 121 esp at para [40], King v Regina [2015] NSWCCA 99 esp at para [56], Williams v Regina [2016] NSWCCA 68 esp at para [38], Bugmy v The Queen [2013] HCA 37 at paras [51] to [53] (per Gageler J). A ground that a particular feature was given too much or insufficient weight is in truth a particular of a ground asserting that a sentence is manifestly excessive or manifestly inadequate: Hanania v Regina [2012] NSWCCA 220 esp at para [33], Harkin v Regina [2020] NSWCCA 242 esp at paras [44] and [45].

Appeal courts are reluctant to allow a ground of appeal based on a submission that the sentencing judge did not take a matter in consideration when that submission was not made to the sentencing judge: Zreika v Regina [2012] NSWCCA 44 esp at paras [77] to [82]. However, were there is is uncontested evidence that supports a submission being made which was overlooked, the court may take that submission into account: Kliendienst v Regina [2020] NSWCCA 98.

The principle that appellate courts should resist the urge to 'tinker' with first instance sentences (Dinsdale v The Queen (2000) 202 CLR 321, 115 A Crim R 558 (esp at para 62)) appears to apply only to Crown appeals, not to appeals by an offender: Hillier v DPP [2009] NSWCCA 312 esp at para [48].

Where a judge apparently has a notional starting point before applying discounts, an appeal based on the starting point being too high will not necessarily succeed unless the final sentence is manifestly excessive: Graham [2009] NSWCCA 212. However, where it is not contended that the discount was excessive, the focus should be on the starting point: Xue v Regina [2017] NSWCCA 137 esp at para [4].

In appeals against an aggregate sentence, it is only the aggregate sentence, not the indicative sentences, which is amenable to appeal. However, if error is established in the indicative sentences, that may guide to whether error is established in the aggregate sentence: Kerr v Regina [2016] NSWCCA 218 at para [114].

The use of comparable sentence was criticised by Wilson J in Sabbah v Regina (Commonwealth) [2020] NSWCCA 89 esp at paras [132] to [134]. However, subsequently, Bell JA said in Moodie v Regina [2020] NSWCCA 160, where Bell P (with whom Davies and N Adams agreed) referred to what Wilson J said in Sabbah and said (at paras [83] to [86]):

[83] There are aspects of this passage that, in my respectful opinion, amount to too general a statement and require a degree of qualification. In particular, the statement that the use of “similar cases” has been “regularly, and repeatedly, decried by this Court as inapposite to the task” is too strong a statement. The position is, again with respect, rather more nuanced than is suggested by the words “decried” and “inapposite”. Far from being inappropriate, the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, and consistency of sentencing is an important element of both criminal justice and the rule of law more generally. As Sir Anthony Mason put the matter with customary clarity in Lowe v R (1984) 154 CLR 606 at 610-611; [1984] HCA 46:

“Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”

[84] Spigelman CJ, with similar clarity and to similar effect, said in Jurisic at 216:

“Inconsistency in sentencing offends the principle of equality before the law. It is itself a manifestation of injustice. It can lead to a sense of grievance amongst individuals on whom uncharacteristically severe sentences are imposed and amongst the broader community, or victims and their families, in the case of uncharacteristically light sentences.”

[85] Whilst it is true to say that no two cases and no two offenders are identical or the same, I do not share the opinion expressed by Wilson J that “no two crimes and no two offenders are alike”: cf FL at [79]. Indeed, decisions which do take into account comparative sentences proceed on the basis that cases do share common, or at least similar, features. So too, guideline judgments proceed by reference to a concept of a “frequently recurring case”: see, for example, Whyte at [204].

[86] In Wong at [12], Gleeson CJ observed that:

“Both in argument, and in reasons for judgment, inadequacy or excessiveness is often demonstrated by a process of comparison. Such a process is a legitimate forensic tool for advocates and judges; and has been employed for many years.”

 

Normally events which happened after sentencing are irrelevant to a sentence appeal: Goss v Regina [2009] NSWCCA 190. However if fresh evidence is admitted it may be be taken into account in determining whether or not a sentence is manifestly excessive: Burke [2002] NSWCCA 353 at [91].

It well established that once error has been established, in determining whether some other sentence was warranted and should have been imposed, the court can take into account material which relates to the applicant at the time of the appeal, rather than being restricted to material available to the sentencing judge: Douar [2005] NSWCCA 455.

Where a ground of appeal has been established, the appeal will still be dismissed if the court concludes that 'no lesser sentence is warranted at law. For the Court to conclude that although a ground of appeal has been made out,'no lesser sentence is warranted, the court shouldnot reach this conclusion in a summary manner, but should must re-exercise the sentencing discretion afresh: Abreu v Regina [2020] NSWCCA 286 esp at paras [1] and [10].

It is a good practice in nearly all cases to put on an affidavit by the applicant or his instructing solicitor about the current circumstances of the applicant. However the practice of routinely putting this material before the courts was criticised by Howie J in Bushara [2006] NSWCCA 8.

'Remarks on Sentence' or 'Judgment on Sentence'

There is a degree of disagreement between appeal judges as to whether the reasons given by a sentencing judge on handing down the sentence should be described as 'remarks on sentence' or 'a judgment'. Basten JA firmly believes that the expression 'remarks on sentece' should not be used: You v Regina [2020] NSWCCA 71 at para [21]. This view was rejected by Johnson J in Maxwell v Regina [2020] NSWCCA 94 (with whom the other members of the court agreed) who pointed out that the term has a lengthy and respectable history (at paras [136] to [147]).

Appeals based on apparent errors in the transcript of proceedings

Exchanges between counsel and the sentencing judge do not form part of the reasons and it is not safe to assume that an observation passed by a judge in the course of the submissions represents a considered final view of the judge on a matter: Regina v A [2004] NSWCCA 292 at para [12], Regina v Pham [2005] NSWCCA 94 at para [11]. However there are occasions when exchanges between counsel and the bench may elucidate abbreviated statements in the remarks on sentence: Regina v Hughes (2008) 185 A Crim R 155 at para [33].

Crown Appeals against failure to assist the authorities

The Crown can appeal against the failure of an offender to fulfill an undertaking to assist law enforcement authorities: s. 5DA Criminal Appeal Act, However, such an appeal is limited to a consideration of the extent of the discount: Chaaban (2006) 166 A Crim R 406 esp at para [26]. The Crown must establish beyond reasonable doubt that an undertaking was given and that there was a failure to comply with it: Regina v James [2014] NSWCCA 311.

Crown Appeals Against Sentence

Crown appeals against sentence should be exceptional and a rarity: Griffiths v The Queen (1977) 137 CLR 293 at 310, Everett v The Queen (1994) 181 CLR 295 at 299, Allpass (1993) 72 A Crim R 561 at 562, Baker [2000] NSWCCA 85, Dinsdale v The Queen (2000) 115 A Crim R 558 (esp at para 62), Wall [2002] NSWCCA 42 at para [70]. This is especially so if no objection was made by the Crown at sentencing: Everett v The Queen (1994) 181 CLR 295. In truth, presently they are anything but rare. The CCA has recently said that the principle that Crown appeals should be rare is not a factor to be taken into account in exercising whether or not to exercise the discretion to intervene in a Crown appeal: Regina v JW [2010] NSWCCA 49 esp. at para [141].

In a Crown appeal, the onus is on the Crown to establish error, and, if error is established, the onus is on the Crown to establish that the discretion to resentence should be exercised: Regina v Cahill [2015] NSWCCA 53 at para [91].

It is insufficient for a Crown appeal to succeed simply by showing that the Court of Criminal Appeal would have imposed a more severe sentence: Griffiths v The Queen (1977) 137 CLR 293 at 310. The Crown must establish that the sentence was outside the discretionary range available to the sentencing judge. The inadequacy must be such that it is indicative of error or departure from principle:Griffiths v The Queen (1977) 137 CLR 293 at 310. The crucial question is whether the total sentence, not the non-parole period, is within the range: Burnett (1996) 85 A Crim R 76.

As in sentence appeals by an individual, appeal grounds which assert that the sentencing judge gave too much or insufficient weight to a particular factor have inherent problems because they involve a tacit concession that some weight was given to the factor; it then becomes a question of whether the weight given to the factor was outside the discretionary range: Stephens v Regina [2009] NSWCCA 240 esp at paras [16] to [18], Regina v Baker [2000] NSWCCA 85 esp at para [11], Regina v Majid [2010] NSWCCA 121 esp at para [40], Bugmy v The Queen [2013] HCA 37 at paras [51] to [53] (per Gageler J) (also see paras [3] and [4] for the context of these comments).

The error must be clearly established; there should be a strong resistance to 'tinkering' with sentences: Dinsdale v The Queen (2000) 202 CLR 321, 115 A Crim R 558 (esp at para 62).

Generally speaking, if in the original sentence proceedings the Crown does not submit that a suspended sentence is inappropriate, the Crown will not be able to so argue successfully on appeal: R v Wilson (1981) 28 SASR 362 at 367-8, approved by the High Court in Everett v The Queen (1994) 181 CLR 295 at 302.

If the Crown puts on a Notice of Appeal simply asserting that the sentence was manifestly inadequate, and then in submissions argues that there were particular errors, that matter will ordinarily be relevant in the question of whether or not the CCA should intervene: DPP v Lombard (2008) 185 A Crim R 565 esp at para [3]. See also Regina v Dixon, Pearce and Pearce [2009] NSWCCA 179 esp at para [13] and Carroll v The Queen [2009] HCA 13 at para [8]. The requirement that the Notice of Appeal disclose the grounds of appeal was described by the CCA as a 'rule of practice', but failure to do so will not invalidate the appeal: Regina v JW [2010] NSWCCA 49 esp. at para [33].

Even if the Court considers that the sentence is manifestly inadequate, the Court has a discretion as to whether or not to intervene to correct the sentence. The Court retains this discretion even after the introduction of s. 68A of the Crimes (Appeal and Review) Act: see Regina v JW [2010] NSWCCA 49 esp. at para [95]. Formerly that discretion took into account the fact that the offender faced double jeopardy: Wall [2002] NSWCCA 42 at para [70]. However now s. 68A of the Crimes (Appeal and Review) Act states that double jeopardy is not to be taken into account in determining whether or not a Crown appeal will be upheld: Regina v JW [2010] NSWCCA 49 esp. at para [141], Regina v Mulligan [2016] NSWCCA 47 esp at para [50]. Section 68A applies to Commonwealth Crown appeals: DPP (Cth) v De La Rosa [2010] NSWCCA 194. Anxiety that a particular offender feels because of the threat of resentencing can be taken into account: DPP (Cth) v De La Rosa [2010] NSWCCA 194 esp at [176]. The Crown has the onus of showing that the discretion to intervene and resentence should be exercised: CMB v AG (NSW) (2015) 256 CLR 346 at para [33].

Where the Crown appeals against not the sentence imposed on an offender, but not a co-offender, the court should not allow the Crown appeal if it would create a disparity between the sentences even if the sentence imposed on the co-offender was manifestly inadequate, unless the sentence imposed on the co-offender was so inadequate that it could be described as an affront to the administration of justice: Green and Quinn v The Queen [2011] HCA 49.

An important factor in determining whether or not to exercise the discretion is the question of whether or not the Crown has allowed the sentencing judge to fall into error: Everett v The Queen (1994) 181 CLR 295 at 300.

At common law, when the court resentences after a successful Crown appeal, the Court should give recognition to the principle of double jeopardy by imposing a sentence somewhat less than the sentence which the Court believes should have been imposed at first instance: Allpass (1993) 72 A Crim R 561 at 562, Dinsdale v The Queen (2000) 202 CLR 321, 115 A Crim R 558 (esp at para 62), Wall [2002] NSWCCA 42 at para [70]. However, because of s. 68A of the Crimes (Appeal and Review) Act double jeopardy is no longer to be taken into account in resentencing a respondent to a Crown appeal. See also Regina v JW [2010] NSWCCA 49 esp. at para [141] where the CCA confirmed this was the effect of s. 68A.

Wood CJ at CL summarised these principles in this passage from Wall [2002] NSWCCA 42 at para [70]:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle 'for the governance and guidance of courts having the duty of sentencing convicted persons': per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at paras 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para 62.

It should be noted that as a result of s. 68A of the Crimes (Appeal and Review) Act, as interpreted in Regina v JW [2010] NSWCCA 49, it seems that paragraphs (b), the second clause of (d) and (e) no longer are good law.

Resentencing

When resentencing after the appeal the Court may take into account developments after sentence, such as attending courses, not having committed prison disclipinary offences, being in protection, and attending courses: Ali v Regina [2014] NSWCCA 45. As a result for a sentence appeal it is normally a good idea to have affidavit material filed setting out the applicant/respondent's current situation.

High Court Appeals on Sentence

Normally special leave will not be granted for appeals against sentence: see Ryan v The Queen (2001) 206 CLR 247 at 294 (per Kirby J)

3/. The Elements of Crime.

Burden of Proof.
The onus is on the Crown to prove each element of the offence beyond reasonable doubt: Woolmington v DPP [1934] AC 462.

Territoriality.

If all the physical elements of an offence have been committed somewhere (whether or not within New South Wales), and there is a 'geographical nexus' between NSW and the offence, the Crimes Act states that NSW courts have jurisdiction: s. 10C Crimes Act. That 'geographical nexus' exists if the offence was wholly or partially committed in NSW, or if the offence has an effect in NSW: s. 10C. If in dispute the trial proceeds in the usual way and the onus of proof is on the balance of probabilities: s. 10E.

Not surprisingly, the courts have jurisdiction over Aboriginals: Jacky (1993) PD [330].

Time and Place

The time when and the place where the offence took place are not normally elements of the offence, but are particulars. However on the facts of a particular case, time and place may become essential to the Crown case as in a situation where the accused can call evidence that he could not have committed the offence when it was alleged: Hughes [2000] NSWCCA 3, Kennedy (2000) 118 A Crim R 34. As a general rule, the prosecution is required to prove the elements of the offence, but not the particulars (such as time and place): Regina v VHP (NSWCCA 7/7/1997, cited in Dean v Regina [2019] NSWCCA 27 at para [20].

Where an indictment charges that an offence took place between dates which straddle a change in legislation which has the effect of changing the elements of the offence, it appears that the accused cannot be convicted of either offence: NW v Regina [2014] NSWCCA 217. This problem is now dealt with by s. 80AF Crimes Act which means that where theree is uncertainty about when an offence took place within a period where there was a change in the legislation, or a change in the complainant's age, the offence with the lesser penalty applies.

Mens Rea and Actus Reus

Lawyers often talk about the need for the prosecution to establish both the 'mens rea' and the 'actus reus' of an offence. These terms come from the Latin maxim, 'actus reus non facit reum nisi mens rea', meaning (loosely) a person does not become guilty of a crime by an act unless he has a guilty mind.

The 'mens rea' is the state of mind required to commit the crime (usually some form of intention or state of knowledge), and the 'actus reus' is everything else, that is, the physical acts of the accused required to show that the crime has been committed.

Actus Reus.
Mens rea must exist at the same time as the actus reus. That is, there must be the intention to commit the crime at the time the crime is committed. However the actus reus is considered as a whole. Thus if the final act is committed at a time when the accused believes the victim is already dead, there should still be a conviction: Thabo Meli v The Queen [1954] 1 All ER 373.

Similarly where a man drives onto another's foot and leaves it there after realising what he has done he is guilty of an offence: Fagan [1969] 1 QB 439.

Voluntariness.
An unwilled reflex or spasm is not voluntary and will not constitute actus reus. If a person accidentally pulls the trigger or jabs a knife at a person that will not excuse the accused. The act of presenting the weapon is the actus reus: Ryan v The Queen (1967) 121 CLR 205, Butcher [1986] VR 43. However the matter should still be left to the jury: Murray v The Queen (2002) 211 CLR 193. For Commonwealth matters see also the Commonwealth Criminal Code, section 4.2.

Intoxication.
Intoxication is only a defence to offences of specific intent such as murder, and maliciously inflict gbh with intent: ss. 428A-I Crimes Act, overruling The Queen v O'Connor (1980) 146 CLR 64 and Martin (1984) 58 ALJR 217. Intoxication is relevant to establish lack of intent for these offences.

Omissions.
Normally omissions cannot constitute actus reus unless they relate to someone to whom you have a legal duty (e.g. your children): Russell [1933] VLR 59, Stone and Dobinson [1977] QB 354.

Automatism.
If an act is not done voluntarily there is no actus reus. Once raised as an issue with a proper foundation (normally medical evidence) the onus of proof is on the Crown to show beyond a reasonable doubt that the act was voluntary or the accused should be acquitted: Hill v Baxter [1958] 1 QB 277, Bratty [1963] AC 486, Falconer v The Queen (1990) 171 CLR 90, 50 A Crim R 245, Youssef (1990) 50 A Crim R 1.

To constitute automatism, a condition must

• be transient;
• be caused by physical or psychological trauma which the mind of a normal person would not be likely to have withstood; and
• not prone to recur: Falconer v The Queen (1990) 171 CLR 90, 50 A Crim R 245.

If the automatism arises from a disease of the mind, the M'Naghten rules apply (Bratty, Cottle). If both issues are raised both should be left to the jury: Radford (1985) 20 A Crim R 425. The critical issue is not whether or not the automatism was the result of external stimuli, but whether or not the accused's mind was sound at the time of the offence: Radford v Regina (1985) 42 SASR 266 at 276, Woodbridge v Regina [2010] NSWCCA 185.

What Can Constitute Automatism.
The following states may constitute automatism:

• sleepwalking (Ryan v The Queen (1967) 121 CLR 205 )
• concussion after a blow to the head (Sullivan [1983] 2 All ER 673)
• hypoglycemia (Quick [1973] QB 910, Bailey [1983] 2 All ER 503, Watmore v Jenkins [1962] 2 QB 572)
• not hyperglycemia (Hennessy [1989] 2 All ER 9)
• epilepsy (Cottle [1958] NZLR 999, Bratty [1963] AC 486 but now see Sullivan [1983] 2 All ER 673)
• sleep- but the culpable conduct can be eg driving while tired- Kroon (1991) 52 A Crim R 15 and Jiminez v The Queen (1992) 173 CLR 572, 66 ALJR 308 overruling Jiminez (1991) 53 A Crim R 56.

Mens Rea.
In Australia (Parker v The Queen (1963) 111 CLR 610) there is no presumption that a man intends the natural and probable consequences of his act as is the case in England (Smith [1961] AC 290 ). The intention must go to every element of the offence such as knowledge that the victim does not consent in rape: Morgan [1976] AC 182.

Mental Illness and Intent.
Evidence of mental illness falling short of legal insanity is admissible on the question of intent: Hawkins v The Queen (1994) 179 CLR 500, 68 ALJR 572, 72 A Crim R 288, Toki [2003] NSWCCA 125.

Type of Intent.
In stealing or fraud cases the jury may be asked to find not only that the person intended to do the act but that the intention was fraudulent or dishonest: Feely [1973] QB 530, Glenister [1980] 2 NSWLR 597, Macleod v The Queen (2003) 214 CLR 230.

Presumption of Mens Rea.
There is a strong presumption that in any statutory offence the Crown must prove intention or knowledge on the part of the accused. The matters to be considered are:

• the words of the statute
• the subject matter of the statute ( the presumption will be stronger in clearly criminal matters, weaker in matters of grave social evils)
• whether or not strict liability will assist enforcement (e.g. can the defendant do anything to avoid committing the offence)

(Sweet v Parsley [1970] AC 132, He Kaw Teh v The Queen (1984) 157 CLR 523, 15 A Crim R 203 ).

Honest and Reasonable Mistake.
Even in offences where the presumption of mens rea does not apply, there will be a presumption that the defence of honest and reasonable mistake of fact applies. The accused has an evidentiary onus to raise the defence: CTM v The Queen (2008) 236 CLR 440 esp at para [35], Ibrahim v Regina [2014] NSWCCA 160. Once raised it is necessary for the Crown to establish beyond a reasonable doubt that the defendant did not have an honest and reasonable but mistaken belief in facts which if true would have made him not guilty of the offence: Proudman v Dayman (1941) 67 CLR 536 per Dixon J, Sweet v Parsley, He Kaw Teh, Commonwealth Criminal Code section 9.

Ignorance of the law does not provide a defence: Ostrowski v Palmer (2004) 218 CLR 493. Thus a mistake about the applicable speed limit does not provide a defence to a speeding charge: Ostrowski v Palmer (2004) 218 CLR 493, RTA v O'Reilly [2009] NSWSC 134.

Criminal Negligence and Recklessness.
To be guilty of a criminal offence where negligence suffices the accused must be guilty of a very high degree of negligence where the word 'recklessness' is the most appropriate: DPP v Andrews [1937] AC 576.

In Commonwealth matters, a person is negligent if it is shown that his conduct involved such a great falling short of the standard of care that a reasonable person would exercise in the circumstances that the conduct merits criminal punishment: Commonwealth Criminal Code, section 5.5.

In cases other than murder, advertence to the possibility of injury will suffice: Coleman (1990) 47 A Crim R 306, Stokes and Difford (1990) 51 A Crim R 25, but see Campbell (1995) 80 A Crim R 461 (Vic CCA). There must be advertence to damage to the type of thing or person actually damaged: B (1994) PD [21].

In Commonwealth matters it appears that to establish recklessness, it must be shown that the defendant is aware of a substantial risk that the result will occur, and that having regard to the circumstances known to the defendant, it is unjustifiable to take the risk: Commonwealth Criminal Code, section 5.4.

Corporations.
For a corporation to be guilty of a criminal offence there must be proof that the guilty knowledge was held by the brains of the company: the Board of Directors, the Managing Director, senior managers, possibly only people mentioned in the Memorandum and Articles of the Company: Tesco Supermarkets v Nattras [1972] AC 153.

For Commonwealth offences, the physical element of the offence must be committed by the employee, agent or officer acting within the actual or apparent scope of his employment, or actual or apparent authority. The mental or fault element must be attributable to the corporation by express, tacit or implied authorisation or permission of the corporation. Approval by a 'high corporate officer', and the prevailing corporate culture, can be taken into account: Commonwealth Criminal Code sections 12.1 to 12.3.

4/. Homicide.

Definition of Murder.
The elements of murder are as follows:

• the act or omission of the accused caused the death of the victim
• the act was done with intent to kill or inflict grievous bodily harm with reckless indifference to human life or or was committed in or before or after a felony punishable by life

(s. 18 Crimes Act).

Causation
An act is treated as the cause of a death if it is a substantial or significant cause of the death even if some other cause is operating: Royall v The Queen (1991) 172 CLR 378, Reynolds v Regina [2015] NSWCCA 29. Only if the original wound is merely a setting in which another cause operates, or if the second cause is so overwhelming as to make the original wound part of the setting, can it be said that the death does not flow from the wound. (Smith [1959] 2 QB 35 at 42-3 adopted in Hallet [1969] SASR 141 and Evans and Gardiner [1976] VR 523). It is sufficient if the acts of the accused accelerate the process of death: Moffatt (2000) 112 A Crim R 201.

The Crown does not have to exclude unreasonable possibilities to have a case fit to go to the jury: Puckeridge (1999) 168 ALR 4, 74 ALJR 373.

Examples of Causation.

The following situations have been held not to break the chain of causation:

• the refusal of the victim to accept reasonable treatment on religious grounds (Blaue [1975] 3 All ER 446).
• poor medical treatment unless the original wound had nearly healed ( Smith but see Jordan (1956) 40 Cr App R 152)
• expected natural forces like sea tides but not earth quakes (Hallett [1969] SASR 141 )
• unconscious actions of the victim but not conscious actions: Hallett
• lawful responses of third parties such as returning fire in self-defence: Pagett (1983) 76 Cr App R 279
• where the accused creates a well founded and reasonable fear in the victim who dies while trying to escape: Royall v The Queen (1990) 172 CLR 378, 54 A Crim R 53.

In Dixon and Smith (1992) 62 A Crim R 465 a conviction was quashed because the Crown could not exclude a reasonable inference that the sole cause of death was an underlying disease.

It is not necessary for the Crown to establish the precise act of the deceased which caused death: Regina v PL [2009] NSWCCA 256 esp at paras [46] to [52]. Thus the Crown can prove death in a circumstantial even where no body is found: see the cases listed in Regina v PL at para [50].

A Life.
Where a child is born alive, but subsequently dies from injuries in the womb, the perpetrator can be guilty of homicide: AGs Ref (No. 3 of 1996) [1996] 2 All ER 10.

Death.
A person is presumed to have died when there is irreversible cessation of all his brain functions or the circulation of blood in his body: s. 33 Human Tissue Act 1983. Thus the person who turns off the life support system has not committed murder: Malcherek and Steele [1981] 2 All ER 422.

Time.
The prosecution no longer has to prove that death occurred within a year and a day of the act relied upon to constitute murder: s. 17A Crimes Act.

Mens Rea in Murder.
In a charge of murder any of the following states of mind will suffice to establish that the mens rea:

• intention to kill or cause grievous bodily harm
• reckless indifference to human life
• felony murder.

(s. 18 Crimes Act).

Intent to Kill.
If a person commits an act which kills the victim, and when he commits the act he intends to either kill the victim or cause grievous bodily harm to the victim, he has the requisite intent for murder.

If there is a continuous stream of events leading to death it is enough if there is an intention to kill at any stage: Hallett [1969] SASR 141.

The accused will have the requisite intent if he intends to kill another even though he believes that he probably will not be successful: Jacobs J in La Fontaine v The Queen (1976) 136 CLR 62.

If a person intends to kill A but instead accidentally kills bystander B, there is an intent to kill: Standish (1991) 60 A Crim R 36.

Reckless Indifference to Human Life.
If a person does not intend to kill another but does an act or omission knowing that that the consequences of the act include the probability of death the mens rea has been established: The Queen v Crabbe (1985) 156 CLR 464. In NSW because of the definition of murder in s.18 of the Crimes Act only foresight of the probability of death is sufficient: Solomon [1980] 1 NSWLR 321.

It is not desirable that the court attempt to further define the terms 'probable' or 'likely', in particular in terms of more than 50% likely. It is not sufficient to say that death 'may well happen or could well happen': Annakin (1987) 37 A Crim R 131. More acceptable are descriptions of the relevant likelihood as a substantial or real chance, a good chance, something that may well or is likely to happen: Boughey v The Queen (1986) 161 CLR 10 esp at para [24], but see White Eaves and Parker (1989) 43 A Crim R 283.

In a case where recklessness is an issue, it is insufficient for the trial judge to read the jury the statutory definition of 'maliciously': Pengilley v Regina [2006] NSWCCA 163 esp at para [41]. In murder trials, 'recklessness' has the near moral equivalence of intention to kill or inflict grievous bodily harm: Aubrey v The Queen (2017) 260 CLR 305 esp at para [47].

The jury should be not be directed in terms of reckless indifference unless it arises as a practical issue: Tumananko (1992) 64 A Crim R 149.

Wilful Blindness.
The jury should not be directed in terms of wilful blindness although deliberate abstention from inquiry may be regarded as evidence of actual knowledge: The Queen v Crabbe.

Felony Murder.
Finally, the requisite mens rea for murder may be established by the fact that a person committed an act resulting in the death of the victim in an attempt to commit, or during or immediately after the commission of a crime punishable by 25 years imprisonment: s. 18 Crimes Act. For practical purposes it should be noted that robbery with wounding, and robbery with a dangerous weapon, but not most other forms of robbery, carry 25 years.

It is not necessary to establish a causal connection between the felony and the death: Munro: (1981) 4 A Crim R 67.

In a charge like robbery with wounding, by majority the High Court held that it is not necessary to show that the accused intended to cause the wounding if he did it: Ryan v The Queen (1967) 121 CLR 205. However, it is necessary for the prosecution to establish that the act was voluntary, and that is a question for the jury: Penza and Di Maria [2013] NSWCCA 21 esp at para [167].

Apprehension murder: query if this exists in NSW: Fry (1992) 58 SASR 424, 67 [ALJ] 626.

Penalty for murder

For most offences, the maximum penalty for murder is life imprisonment: s. 19A Crimes Act.

However, where the person killed is a police officer executing his or her duty, or as a consequnce of or in retaliation for acting in his or her duty, there is an automatic sentence of life imprisonment, unless theoffencer was under the age of 18 or was suffering from a significant cognitive impairment at the time (s. 19B Crimes Act).

Manslaughter.

The following situations are sufficient to establish manslaughter :

• manslaughter by criminal negligence
• manslaughter by unlawful and dangerous act
• manslaughter by excessive self-defence
• manslaughter by omission

It is not necessary for the jury to reach a verdict of guilty of manslaughter on the same basis of liability: Cramp (1999) 110 A Crim 198.

Criminal Negligence.

In order to establish manslaughter by way of negligence, the prosecution must establish the following:

(1) that the accused had a duty of care to the deceased;

(2) that the accused was negligent in that by the accused’s act, the accused was in breach of that duty of care

(3) that such act of the accused [caused/accelerated] the death of the deceased; and

(4) that such act merited criminal punishment because:

(i) it fell so far short of the standard of care which a reasonable person would have exercised in the circumstances; and

(ii) involved such a high risk that death or really serious bodily harm would follow; and

(iii) the degree of negligence involved in the conduct is so serious that it should be treated as criminal conduct.

See Nydam [1977] VR 430 and Lavender v The Queen (2005) 222 CLR 67.

The test an objective one; it is not necessary for the Crown to show that the accused was aware of the risk: Nydam [1977] VR 430 and Buttsworth [1983] 1 NSWLR 658, but see Andrews [1937] AC 576. In Lavender [2004] NSWCCA 120 the NSW CCA held that there is a requirement for the Crown to establish that the accused realised that there was an appreciable risk of harm. However this approach was rejected by the High Court in Lavender v The Queen (2005) 222 CLR 67. There must be a very high degree of negligence that equates to recklessness: Andrews, Buttsworth.

Unlawful and Dangerous Act.
In order to establish manslaughter by unlawful and dangerous act it is necessary to establish:

Manslaughter By Excessive Self-Defence

The rule that murder could be reduced to manslaughter on the basis of excessive self-defence has an unusual history. The doctrine was confirmed by the High Court in Viro v The Queen (1978) 141 CLR 148. The High Court subsequently abolished it, largely on the grounds that it was too complicated, in Zecevic v DPP (Victoria) (1987) 162 CLR 645. However it has been re-introduced by s. 421 Crimes Act, which applies to legal proceedings (other than committals) which commence after 22 February 2002, regardless of when the offence was committed: s. 423.

Section 421 applies where:

(1) the person uses force involving the intentional or reckless infliction of death;
(2) the conduct is not a reasonable response in the circumstances as the person perceived them
(3) but the person believed the conduct was necessary to defend himself/herself or another person, or to prevent or terminate the unlawful deprivation of his/her liberty or that of another person

In such a situation the person will be not guilty of murder, but, unless some other defence is available, will be guilty of manslaughter.

The second element referred to above is necessary because if the conduct was a "reasonable response in the circumstances as the person perceived them", there would be a complete defence of self-defence resulting in an acquittal (see s. 418).

In relation to assessing the appellant's belief, there is no requirement that the belief be reasonable, and it appears that the jury can take into account the fact that the defendant was effected by alcohol: Conlon (1993) 69 A Crim R 92. Section 428F of the Crimes Act does not exclude consideration of alcohol because there is no 'reasonable man' test: see Kurtic (1996) 85 A Crim R 57. It may be possible to take into account delusional beliefs of the defendant: Kurtic (1996) 85 A Crim R 57. See generally the section on Self-Defence in the next chapter.

Manslaughter By Omission.
The criminal law rarely imposes an obligation to do a positive act. Failure to do an act which results in death may constitute manslaughter in the following situations:

• where the victim is a person who the accused has a legal obligation to care for such as his children: Russell [1933] VLR 59
• where the accused assumes a duty of care to the victim and secludes the helpless person that others can't render aid: Stone and Dobinson [1977] 1 QB 354, Taktak (1988) 14 NSWLR 226.

Manslaughter on Multiple Bases

It is not necessary for a jury to reach a verdict of manslaughter on the same basis: Cramp (1999) 110 A Crim R 198, Dally (2000) 115 A Crim R 582.When the jury returns a verdict of manslaughter, it normally should not be asked on what basis: Isaacs (1997) 90 A Crim R 587, overruling Low (1991) 57 A Crim R 8.

Solicit to Murder.
The offence of solicit to murder is complete once the request to murder is made. Later withdrawal does not effect liability: Wright (1997) 4 Crim LN [724].

Penalty.
The penalty for murder is life imprisonment. However the judge may impose a lesser sentence (ss. 19A Crimes Act and s. 21 Crimes (Sentencing Procedure) Act).

The 'standard non-parole period' for murders committed after 2 February 2003 (where the victim was a police worker, emergency services worker, prison officer, judicial officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victims occupation) is 25 years. For other murders committed after 2 February 2003, the standard non-parole period is 20 years. For attempt murder and conspiracy to murder committed after 2 February 2003, the standard non-parole period is 10 years.

5/. Defences

Defences generally

Many of the defences in this chapter strictly speaking are not 'defences' in that once raised by the evidence, the onus is on the prosecution to negate the defences.

Very frequently in relation to defences, the issue of the effect of alcohol or drugs on the defendant also arises. For that reason, as far as possible, that question is considered in relation to each of the defences.

The Leaving Defences to the Jury.
Defences available on the facts must be left to the jury even if the defence opposes this: Ward (1989) 42 A Crim R 56. This does not apply in non-jury trials: Ion (1996) 89 A Crim R 81.

(a) autrefois acquit and convict

Autrefois Acquit.
Generally, if an accused has been already been convicted of an offence, or acquitted of an offence, he cannot again be convicted of the same offence arising from exactly the same circumstances. The judge has a discretion to stay a second set of proceedings arising out of the same or substantially the same circumstances unless the prosecution establishes that because of special circumstances there should not be a stay: Connelly [1964] AC 1254, Beedie [1997] 2 Cr App R 167, The Queen v Carroll (2002) 213 CLR 635.

However, exceptions have been created to this rule by statute. On application by the DPP, the Court of Criminal Appeal may order that a person who has been acquitted be retried for an offence carrying a maximum penalty of life, if there is fresh and compelling evidence of the guilt of the accused, and if it is in the interests of justice for the order to be made: s. 100 Crimes (Appeal and Review) Act. Evidence is 'compelling' if it is reliable, substantial, and highly probative in the case against the accused: s. 102 Crimes (Appeal and Review) Act.

On application by the DPP, the Court of Criminal Appeal may order that a person who has been acquitted be retried for an offence carrying 15 years or more gaol as a maximum penalty, if someone has been convicted of an administration of justice offence relating to the earlier trial (for example, perjury), and if it is more likely than not that, but for the commission of the administration of justice offence, the accused would have been convicted: s. 101 Crimes (Appeal and Review) Act.

Autrefois convict

Autrefois convict does not apply where there are convictions for two different offences constituted by the same act: Pearce v The Queen (1998) 194 CLR 610. However, in a situation where an accused is charged with an offence, and is acquitted, and is later charged with a second offence arising out of the same circumstances, autrefois acquit may apply if either all the elements of the first offence are contained within the second offence, or vice versa: Island Maritime v Filipowski (2006) 228 ALR 1 esp at paras [40] (per Gummow and Hayne JJ) and [91] (per Kirby J).

By analogy with autrefois acquit, where a person has been acquitted of an offence after giving evidence, a charge that the accused committed perjury by asserting his innocence should be stayed: The Queen v Carroll (2002) 213 CLR 635. That may not be the case if the defendant's evidence did not disprove an element of the offence and was not critical to the judge's decision: Decision Restricted [2019] NSWCCA 124.

(b) Fitness to be Tried

Raising the Issue of Fitness to be Tried

The question of fitness to be tried can be raised by the Crown, the defence, or the judge: s. 39 Mental Health and Cognitive Impairment Provisions Act (2020).

Where the issue of fitness to be tried is raised in good faith, there must be an inquiry into the fitness of the accused: s. 42(3) Mental Health and Cognitive Impairment Forensic Provisions Act (2020). The Court has a discretion to dismiss the charge because of the na trivial nature of the offence or the accused's mental health or cognitive impairment: s. 42(4) Mental Health and Cognitive Impairment Forensic Provisions Act (2020)

Where the accused's lawyer or the Crown has expert medical opinion that the accused is unfit to be tried, there is an obligation to draw this material to the attention of the judge, it seems even if the accused does not wish the issue to be raised: Eastman v The Queen (2000) 203 CLR 1 esp at para [297] (per Hayne J.). See also Regina v Mailes (2001) 53 NSWLR 251 esp at para [11].

The question of fitness to be tried can be raised at any time during the trial but where practical should be raised before the trial: s. 37 Mental Health and Cognitive Impairment Provisions Act (2020).

Fitness to Be Tried.

The following applies to criminal Proceedings in the Supreme Court and District Court: s. 35 Mental Health and Cognitive Impairment Provisions Act (2020)

Under the s. 36 Mental Health and Cognitive Impairment Provisions Act (2020), a person is taken to be unfit to be tried, either because of a mental health impairment, or because of a cognitive impairment, or both, or for any other reason, if the person cannot do none or more of the following:

(a) understand the offence the subject of the proceedings, 

(b) plead to the charge, 

(c) exercise the right to challenge jurors, 

(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, 

(e) follow the course of the proceedings so as to understand what is going on in a general sense, 

(f) understand the substantial effect of any evidence given against the person, 

(g) make a defence or answer to the charge, 

(h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, 

(i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court.

This test is virtually the same as the 'Presser' test at common law (Presser [1958] VR 45, Ngatanyi v The Queen (1980) 147 CLR 1, Kesavarajah v The Queen (1994) 181 CLR 230, 68 ALJR 670, (1994) 74 A Crim R 100). The cause of the unfitness is not limited to mental illness, and at least also includes developmental disability: Mailes (2000-2001) 53 NSWLR 251. The condition of the accused not only at the time of the application but also throughout the length of the trial must be taken into account: Kesavarajah. An inability to remember the incident said to be the crime (such as blackouts or amnesia) does not constitute unfitness: Drummond (1994) PD [266]. It is not sufficient that there is a reduced capacity to meet the Presser test: Rivkin (2004) 59 NSWLR 284. The fact that an accused is sleeping through parts of the trial may not be enough to establish that he was infit to be tried: Feili v Regina [2015] NSWCCA 43.

The relevant time for the test of fitness is the time of the trial, not the time of the offence: Dennison (CCA 3/3/88). There must be a report, an affidavit, or submissions raising suspicions before it is raised as an issue: Coffee (1992) PD [391].

Onus of Proof.

In state matters, the burden of proof is on the balance of probabilities: s. 38 Mental Health and Cognitive Impairment Provisions Act (2020)

There is no burden of proof on any particular party to the proceedings: s. 44(4) Mental Health and Cognitive Impairment Forensic Provisions Act (2020).

In Commonwealth matters arguably the NSW onus applies: Kesavarajah v The Queen (1994) 181 CLR 230, 68 ALJR 670, (1994) 74 A Crim R 100. At common law the onus of proof is on the accused if he alleges that he is unfit to be tried on the balance of probabilities, but on the Crown if it alleges it: Podola [1960] 1 QB 325.

Procedure in Fitness Hearings

The question of a person's fitness to be tried is to be determined by a judge alone: s. 44 Mental Health and Cognitive Impairment Forensic Provisions Act (2020).

The inquiry is not to be carried out in an adversarial manner: s. 44(3) Mental Health and Cognitive Impairment Forensic Provisions Act (2020)

Procedure After a Finding of Unfitness to be Tried

The procedure to be followed if a person is found to be unfit to be tried is extremely complicated procedure set out in the Mental Health and Cognitive Impairment Forensic Provisions Act (2020) If a further determination is made that the person is unlikely to be found unfit to be tried within 12 months, there can be a 'special hearing' on the basis of the limited evidence available.

The special hearing should be conducted as closely as possible to a criminal trial, and in particular there should be a formal arraignment: s. 56 Mental Health and Cognitive Impairment Forensic Provisions Act (2020), Zvonaric (2001) 54 NSWLR 1. A model explanation of the proceedings was given in Subramaniam v The Queen (2004) 211 ALR 1 at para [39]. It seems in a special hearing, counsel for the accused may raise mental illness as a defence even if expressly instructed not to raise it: Dezfouli v Regina [2007] NSWCCA 86 esp at para [46].

If the person is found guilty on the basis of the limited evidence available, a limiting term must be set, which is the longest period the person can be detained as a forensic patient, and which should represent the total sentence which the court would impose had the person been fit to be tried: s. 63 Mental Health and Cognitive Impairment Forensic Provisions Act (2020). A non-parole period and parole period should not be set: Mitchell (1999) 108 A Crim R 85, Mailes (2004) 62 NSWLR 181. The court should not give the offender the benefit of any discount for contrition in this situation: Mitchell (1999) 108 A Crim R 85.

The limiting term imposed as a sentence can be backdated to take into account periods of pre-sentence custody: Parker (1990) 47 A Crim R 281, s. 63 (5) Mental Health and Cognitive Impairment Forensic Provisions Act (2020). However the limiting term can commence at an earlier or later time than the date of sentencing: s. 64 Mental Health and Cognitive Impairment Forensic Provisions Act (2020). A court cannot release a forensic patient conditionally or unconditionally after imposing a limiting term: DPP v Khoury [2014] NSWCA 15.

Unfitness in the Local Court

There are no specific provisions for dealing with unfitness to be tried in the Local Court. It has been held that where a defendant in Local Court proceedings is found to be unfit to be tried, he should be discharged: Mantell v Molyneux (2006) 165 A Crim R 83.

(c) Mental Impairment or Cognitive Impairment

The defence of mental impairment or conitive impairment applies if the at the time of carrying out the act constituting the offence, the accused:

-did not know the nature and quality of his act, or

-did not know that the act was wrong (that is, that the accused could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong)

(s. 28 Mental Health and Cognitive Impairment Forensic Provisions Act (2020)). There is a similar provision under the Commonwealth Criminal Code section 7.3.

The defence is based on the common law defence of mental illness known as the M'Naghten rules: M'Naghten [1843-60] All ER 229. The irresistible impulse doctrine as a separate doctrine has been rejected: Sodeman v The Queen (1936) 55 CLR 230.

It has been held that the defence of mental illness can be raised in Local Court proceedings: Regina v McMahon [2006] NSWDC 81.

In the opinion of the writer, this defence should only be raised in cases other than murder in the most exceptional circumstances, because of the risk that a resolution under the mental health legislation might lead to a longer period of incarceration than a plea of guilty with a strong case in mitigation.

Common law cases on the defence of mental illness

At common law, the test for the defence of mental illness was whether or not the defendant, had a defect of reason, arising from a disease of the miond, such that he did not know the nature and quality of his act, or that he was doing wrong: M'Naghten [1843-60] All ER 229.

In relation to the nature and quality of the act, it may be established that the accused did not understand the physical nature of the act he was committing, such as thinking he was breaking a twig: Regina v Porter (1933) 55 CLR 182

Wrong means not legally wrong (as in England: Windle (1952) 2 QB 826) but morally wrong according to the ideas of ordinary men: Stapleton v The Queen (1952) 86 CLR 358. In Regina v Porter (1933) 55 CLR 182 Dixon CJ said 'If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong'. This statement is reflected in the statutory test for the defence of mental illness.

Mental Impairment

Under the Act, a person has a mental health impairment if (s. 4(1) Mental Health and Cognitive Impairment Forensic Provisions Act (2020)):

-the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

-the disturbance would be regarded as significant for clinical diagnostic purposes, and

-the disturbance impairs the emotional well-being, judgment or behaviour of the person

A mental health impairment may arise from any of the following disorders, but may also arise for other reasons (s. 4(2) Mental Health and Cognitive Impairment Forensic Provisions Act (2020)):

-an anxiety disorder

-an affective disorder (including clinical depression and an affective disorder)

-a substance induced mental disorder that is not temporary

A person does not have a mental health disorder if the person's impairment is caused solely by the temporary effect of ingesting a substance, or a substance abuse disorder: s. 4(3) Mental Health and Cognitive Impairment Forensic Provisions Act (2020)

Common law cases on the meaning of mental illness

Overall, the statutory defintion of mental impairment appears to be broader than the common law.

At common law, the cause of the disease of the mind is irrelevant, as is whether it is temporary or curable or not: Kemp [1957] 1 QB 399. Mere lack of self-control is insufficient: Regina v Porter (1933) 55 CLR 182. Alcohol withdrawal psychosis is included: Kina (1996) 3 Crim LN 36.

A person who is simply a psychopath (in modern psychiatric terms, a sociopath) does not have a mental illness: Willgoss v The Queen (1960) 105 CLR 295.

It has been held that the effect of intoxication by drugs or alcohol does not constitute a disease of the mind: Regina v Quick (1973) QB 910.

Overlap between mental illness and other defences

Evidence relating to the psychiatric condition may be relevant both to the defence of mental illness, and to other defences which may be available, such the issue of whether or not the accused had the requisite intent (but not the issue of sane automatism). In that case, the psychiatric evidence may be admitted on both issues: Hawkins v The Queen (1994) 179 CLR 500.

If mental illness and another defence or defences are left to the jury, the jury should be asked to determine what the accused did, and whether the accused was criminally responsible for doing it, before deciding whether any issues about the accused's intent in doing the act alleged to have constituted the offence: Hawkins at p. 517.

Proof in the defence of mental impairment

The defendant is presumed not to have a mental health impairment or a cognitive impairment unless the contrary is proved: s. 28 Mental Health and Cognitive Impairment Forensic Provisions Act (2020). The burden of proof in on the balance of probabilities: s. 28 Mental Health and Cognitive Impairment Forensic Provisions Act (2020).

Directions as to Consequences of findings

Under s. 29 of the Mental Health and Cognitive Impairment Forensic Provisions Act (2020) the judge must explain the consequences of the possible findings. This may include explaining to the jury the consequences of finding the accused guilty: Hilder (1997) 4 Crim LN [751].

Consequences of a finding of the jury's verdict

If the jury finds that the defendant has established the defence of mental health impairment or cognitive impairment has been established, the jury must return a verdict of act proven but not criminally responsible: s. 30 Mental Health and Cognitive Impairment Forensic Provisions Act (2020).

If a person is found not guilty by reason of mental illness the court must generally order that the accused be detained in such manner and in such place as the court deems fit until released by due process of law: s. 33 Mental Health and Cognitive Impairment Forensic Provisions Act (2020).

The court also has the power to release the accused, either conditionally, but only if the court is satisfied on the balance of probabilities that the safety of the accused or any member of the public will not be seriously endangered by the person's release: s. 33 Mental Health and Cognitive Impairment Forensic Provisions Act (2020). It is relatively rare for such an order to be made unless the accused has made a full recovery between the time of the offence and the hearing.

People found not guilty by reason of mental illness are not given a fixed sentence. They are reviewed every 6 months by the Mental Health Tribunal which can make orders as to the person's continued detention, care or treatment in a mental health facility, prison or other place: s. 78 Mental Health and Cognitive Impairment Forensic Provisions Act (2020). The Tribunal may also order the person's release, either conditionally or unconditionally: s. 81 Mental Health and Cognitive Impairment Forensic Provisions Act (2020). The requirement of approval by the Attorney General has been recently removed.

Mental Health Impairment and Cognitive Impairment in the Local Court.

Part Two of the Mental Health and Cognitive Impairment Forensic Provisions Act (ss. 7 to 26) applies to:

• summary proceedings
• indictable proceedings tried summarily
• bail applications

but not committals (s. 8 Mental Health Cognitive Impairment Forensic Provisions Provisions Act).

Mental Health Impairment

Under s. 4 (1) of the the Mental Health and Cognitive Impairment Forensic Provisions Act, a person has a 'mental health impairment' if:

(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and 

(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and 

(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

There is a non-exhaustive list of conditions from which a mental health disorder may arise which is an anxiety disorder, an affective disorder (including clinical disorder and affective depression), and a substance induced mental disorder which is not temporary (s. 4(2) Mental Health and Cognitive Impairment Forensic Provisions Act).

However, a 'mental health impairment' does not include an impairment caused solely by the temporary of ingesting a substance or a substance use disorder (s. 4(3) Mental Health and Cognitive Forensic Provisions Impairment Act).

Making an Application

An application under the Act can be made at any stage whether or not the defendant has entered a plea (s. 9 Mental Health and Cognitive Impairment Forensic Provisions Act). It is suggested that the application be entered at an early stage, before a plea is entered.

The application can be made on 'an outline of the facts' (s. 12 Mental Health and Cognitive Impairment Forensic Provisions Act). Generally this will be a tender on the police facts.

The magistrate in determining the application may 'inform himself or herself as the magistrate thinks fit' (s. 10 Mental Health and Cognitive Impairment Forensic Provisions Act). However, the magistrate 'should not require the defendant to incriminate himself or herself' (s. 10 Mental Health and Cognitive Impairment Forensic Provisions Act).

It is the view of the writer that it would be a very rare case where the defendant would give evidence in an application of this nature. Normally there application would be supported by a report from a psychiatrist or a psychologist. There is no blanket rule either in favour of or against the use of a psychologist's report rather than a psychiatric report in the application: Jones v Booth [2019] NSWSC 1066.

The magistrate may adjourn the proceedings for the purposes of :

-enabling the defendant's mental health or cognitive impairment to be assessed or diagnosed;

-developing a treatment plan for the defendant for the purposes of the order

-indentifying a responsible person for the purposes of the order

-for any other reason the magistrate considers appropriate (s. 13 Mental Health and Cognitive Impairment Forensic Provisions Act)

Relevant considerations

In determining whetheror not to make an order under these provisions, the magistrate may consider (in summary):

-the nature of the defendant's mental health or cognitive impairment;

-the nature, seriousness and circumstances of the offence;

-the suitability of the sentencing options if the defendant is found guilty;

-changes in the defendant's circumstances since the time of the offence;

-the defendant's criminal history

-whether or not there has been a previous order under these provisions;

-whether there is a treatment plan for the defendant and if so the content of the plan;

-whether the defendant is likely to endanger the safety of himself, a victim, or a member of the public

(s. 15 Mental Health and Cognitive Impairment Forensic Provisions Act). See also DPP v Lopez-Aguilar [2013] NSWSC 1019 esp at para [8].

Under the previous versions of this provision, it was held that the magistrate can take into account the seriousness of the offences (Confos v DPP [2004] NSWSC 1159, DPP v Mawas (2006) 66 NSWLR 93) and the fact that the offences were planned (DPP v Mawas (2006) 66 NSWLR 93). The magistrate can also take into account the fact that orders pursuant to the Act can effectively only have a limited duration: Mantell v Molyneux (2006) 165 A Crim R 83.

Orders in the Local Court

Where a magistrate is satisfied that:

-the defendant has or had at the time of the commission of the alleged offence a mental health impairment or a cognitive impairment, and

-on an outline of the facts it would appear to be more appropriate to deal with the defendant in accordance with the Division of the Act than otherwise according to law

the magistrate can make an order under Division Two (s. 12 Mental Health and Cognitive Impairment Forensic Provisions Act).

The magistrate can make an order dismissing the charge and discharging the defendant

-into the case of some person, unconditionally, or subject to conditions

-on condition the defendant attends a specified person or place for assessment, treatment or support for a mental health impairment or cognitive impairment

-or unconditionally (s. 14 Mental Health and Cognitive Impairment Forensic Provisions Act)

An order discharging the defendant into the care of a responsible person or conditional upon the defendant attending upon a person or place for assessment and treatment must specify the relevant person or place: DPP v Saunders [2017] NSWCCA 760 esp at para [47].

A discharge under the Act does not constitute a finding of guilt (s. 14 (2) Mental Health and Cognitive Impairment Forensic Provisions Act).

The magistrate must give reasons for his/her decision: s. 11 Mental Health and Cognitive Impairment Forensic Provisions Act.

If the defendant fails to comply with a condition of the order within 12 months, the defendant can be brought before the magistrate, and the magistrate deal with the defendant as if he had not been discharged: s. 16 Mental Health and Cognitive Impairment Forensic Provisions Act.

Mentally ill or mentally disordered persons

Where it appears to a magistrate that a defendant is a mentally ill or mentally disordered person, the magistrate may:

-make an order that the defendant be taken to a psychiatric hospital for assessment;

-make an order that the defendant be taken to and detained in apsychiatric hospital for assessment and detention, and, if not found to be a mentally ill or mentally disordered person, to be brought back to the court; or

-discharge the defendant unconditionally or conditionally into the care of a responsible person

(s. 19 Mental Health and Cognitive Impairment Forensic Provisions Act).

An authorised justice of the peace in bail proceedings can also order that a mentally ill or mentally disordered person be taken to a hospital for assesment: s. 21 Mental Health and Cognitive Impairment Forensic Provisions Act. There is a power to order a defendant in custody to be transferred to and from prison: s. 22 Mental Health and Cognitive Impairment Forensic Provisions Act.

The magistrate also has the power to grant bail and adjourn the proceedings : s. 15 Mental Health and Cognitive Impairment Forensic Provisions Act.

The magistrate also has the power to make a community treatment under the Mental Health Act (2007) if all the requirements under that Act are satisfied: s. 20 Mental Health and Cognitive Impairment Forensic Provisions Act.

If the defendant who has been taken to a psychiatric hospital under these provisions is not brought back before the magistrate within 6 months to be further dealt with for the charge, the charges are deemed to be dismissed: s. 23 Mental Health and Cognitive Impairment Forensic Provisions Act.

If the defendant is brought back to court and is ultimately sentenced to imprisonment, the magistrate in sentencing the defendant must take into account the time that the defendant was detained in a psychiatric hospitel as a result of the order: s. 23(2) Mental Health and Cognitive Impairment Impairment Forensic Provisions Act.

The fact that the charges have been dismissed under these provisions does not mean that the charge has been proven 'or otherwise': s. 23(3) Mental Health and Cognitive Impairment Impairment Forensic Provisions Act.


(d) Substantial Impairment by Abnormality of Mind

Substantial Impairment.

S. 23A Crimes Act- Substantial impairment (formerly diminished responsibility) reduces murder to manslaughter if:

(1) at the time of the acts/omissions causing death the person's capacity to

• understand events
• judge whether the person's action were right or wrong or
• control himself or herself

was substantially impaired by an abnormality of mind arising from an underlying condition AND

(2) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter

'Substantial' means less than total, more than trivial or minimal: Trotter (1993) 68 A Crim R 536.

The onus of proof is on the accused on the balance of probabilities: Elliot and Hitchins (1983) 9 A Crim R 238. The judge should not comment on the failure of the accused to give evidence: Bathurst (1968) 1 All ER 1175.

Abnormality of Mind.

Under previous legislation it was held that the abnormality of mind must be so different from ordinary human beings that a reasonable man would call it 'abnormal': Byrne (1960) 2 QB 396. Steroid rage does not constitute an abnormality of mind: De Souza (1997) 95 A Crim R 1.

'Underlying condition'

The abnormality of mind must arise from an underlying condition, which is defined as a pre-existing mental or physiological condition, other than a condition of a transitory kind: s. 23A(8), McGarvie (1986) 5 NSWLR 270.

Medical Evidence.
It is open to the jury to reject medical evidence but only where there is other evidence throwing doubt upon it: Tumananko (1992) 64 A Crim R 149 at 160.

Effect of alcohol or drugs on the defence of substantial impairment

By statute self induced intoxication by drugs or alcohol is to be disregarded by a jury in considering the defence of substantial impairment: s. 23A(3), Jones (1986) 22 A Crim R 42.

It appears that a drug induced psychosis, will not consitute 'an abnormality of mind arising from an underlying condition', nor is an underlying vulnerability to mental illness: Fang v Regina [2018] NSWCCA 210.

It has been held by the House of Lords that the jury should not be directed that if the accused had not taken drink/drugs he/she would not have killed, the defence is not available. If both drugs and the abnormality substantially impaired the accused's capacity, the defence is still available: Regina v Deitschmann [2003] UKHL 10.

However, that does not seem to be the case in NSW. In Zaro v Regina [2009] NSWCCA 219 it was held that if at the time the accused committed the offence, he had a pre-existing condition which was pre-disposed to become manifest when he took drugs and alcohol, the accused cannot rely on substantial impairment.

'So substantial as to reduce murder to manslaughter'

For the defence of substantial impairment to succeed, the defence must establish the 'second leg' of the defence as well, which is that the tribunal of fact (normally the jury) must be satisfied that the substantial impairment 'was so substantial as to reduce murder to manslaughter' (s. 23A (1) (b) Crimes Act).The legislation does not describe what criteria the jury is to apply to the question of whether the impairment was so substantial as to reduce murder to manslaughter. Expert evidence is not permitted on this issue: s. 23A (2).

Notice

The accused must not without leave of the court adduce evidence tending to prove that he is not guilty by reason of substantial impairment unless he has given notice in writing to the DPP, including names and addresses of witnesses and particulars of the evidence to be given by these witnesses: s 151 Criminal Procedure Act. A prescribed form can be found as Form 1 of the Criminal Procedure Regulation (2005). There is a precedent Notice of Intention to Adduce Evidence of Substantial Impairment in this site.

(c) Automatism

Automatism. See Chapter 3 above.

(d) Intoxication

Intoxication by drugs or alcohol of itself is not a defence. However, for offences of specific intent, intoxication is relevant to the question of whether or not the prosecution has established the mental element of the offence.

For offences committed before 16 August 1996, intoxication such that there was no intention is a defence for all offences including manslaughter (Martin (1984) 58 ALJR 217, O'Connor v The Queen (1980) 146 CLR 64). For offences committed after 16 August 1996, intoxication is irrelevant for voluntariness, and only provides a defence in relation to intention when the offence is one of specific intent, such as murder, and maliciously inflict gbh with intent (s. 428 C-D Crimes Act, Commonwealth Criminal Code sections 4.2 and 8.2).

The jury must be specifically directed that the accused's intoxication is relevant to the question of whether he had the necessary intent: Bellchambers v Regina [2008] NSWCCA 235.

Murder is an offence of specific intent, regardless of the legal basis on which it has been found that murder has been committed: Grant (2002) 55 NSWLR 80, 131 A Crim R 510.

(e) self-defence

Self defence generally.
The defence of self defence has now been codified. For proceedings which commence after 22 February 2002 (excluding committals) (see s. 423 Crimes Act), the following applies:

A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them (s. 418 Crimes Act, Commonwealth Criminal Code section 10.4).

Self defence is not excluded because the conduct that the defendant was responding to was lawful, or because the person carrying out the conduct to which the defendant responds was not criminally responsible for it: s. 422 Crimes Act, Thomas (1993) 65 A Crim R 269. Thus the defence can be raised even if the alleged victim was lawfully in the execution of his duty in arresting the accused: Crawford v Regina [2008] NSWCCA 166.

Self defence is not available as a defence to murder, when force is used to protect property only or to prevent trespass: s. 420.

The defence is not limited to situations where death or serious bodily injury is threatened: Honeysett (1987) 34 A Crim R 277. Before self-defence can be left to a jury there must be a threat of immediate harm: PRFN [2000] NSWCCA 230.

The defence of self-defence does not have to be left to the jury if the accused denies causing the victim any injury: Flanagan v Regina [2013] NSWCCA 320.

The onus of proof in self-defence

Taking into account the onus of proof in a criminal prosecution, to negative a defence of self defence, once raised, the prosecution must establish beyond reasonable doubt either that:

(1) the accused did not genuinely believe that he did what he did in self-defence, OR
(2) that the accused did was not a reasonable response to the danger, as he perceived it to be

(Katarzynski [2002] NSWSC 613 at para [23], Dziduch (1990) 47 A Crim R 378)

Once self defence is raised in the evidence, the Crown must satisfy the court that the defendant was not acting in self-defence beyond reasonable doubt: s. 419 Crimes Act. Even if self-defence is raised in the Crown case, the issue may only be determined by the jury: DPP Ref (No. 1) (1992) 60 A Crim R 43.

The first leg of the test: 'the subjective leg'

The first leg of the test is completely subjective. It is insufficient for the Crown to prove that the belief of the accused was unreasonable: Katarzynski [2002] NSWSC 613. The second leg of the test is whether the conduct of the defendant was a reasonable response in the circumstances as he or she perceived them.

As to the first leg of the test, it is not necessary for the accused to give evidence that he had a belief that it was necessary to act in the way that he did in defence of himself or another, if there was a basis for that conclusion based on other evidence or an inference from that evidence: Colosimo v DPP [2006] NSWCA 293 esp at [19], Flanagan v Regina [2013] NSWCCA 320 esp at para [86].

In relation to the first leg, the jury can take into account the defendant's personal characteristics, including intoxication: Doran and Brunton v DPP [2019] NSWSC 1191 (per Simpson AJA esp at para [47]). It has been held that the question of the belief of the defendant takes the defendant as he is, including his state of intoxication by drugs or alcohol: see Regina v Flame (No. 2) [2020] NSWSC 1602 at paras [18] to [27] and Regina v Katarzynski [2002] NSWSC 613 esp at para [28].

The second leg of the test: 'the objective leg'

As to the second leg, this leg requires consideration of the circumstances 'as the defendant perceives them'. It has been held that the question of the circumstances as the defendant perceives them is a subjective one, and takes into account the intoxication of the defendant: Doran and Brunton v DPP [2019] NSWSC 1191 (per Simpson AJA esp at para [48].

As to the second leg, the test relates to whether the defendant's actions were reasonable (in the circumstances as he perceived them), not to whether a reasonable man would have done the same thing: Conlon (1993) 69 A Crim R 92. In Conlon it was held that s. 428F Crimes Act did not apply, and the court can take into account characteristics of the defendant such as intoxication (Conlon (1993) 69 A Crim R 92) and possibly delusional beliefs (Kurtic (1996) 85 A Crim R 57). However in Katarzynski [2002] NSWSC 613, Howie J said that Conlon no longer applied, and said that intoxication could not be taken into account. See also Doran and Brunton v DPP [2019] NSWSC 1191 (per Simpson AJA esp at para [47]). However, other personal characteristics of the defendant can be taken into account, such as the defendant's age, gender, or state of health: Katarzynski [2002] NSWSC 613 at para [25].

'Detached reflection cannot be demanded in the presence of an upturned knife': Justice Oliver Wendell Holmes In Brown v The United States, quoted with approval by Dixon J in Howe v The Queen (1958) 100 CLR 448 at para [14].

Self-defence and murder: manslaughter by way of 'excessive self-defence'

Where:

(1) a person uses force involving the intentional or reckless infliction of death;
(2) the conduct is not a reasonable response in the circumstances as the person perceived them
(3) but the person believed the conduct was necessary to defend himself/herself or another person, or to prevent or terminate the unlawful deprivation of his/her liberty or that of another person

the person is to be found not guilty or murder but guilty of manslaughter: s. 421 Crimes Act.

In other words, in a murder trial where self-defence is raised, if the Crown succeds in negativing the second or objective leg, but not the first or subjective leg, the verdict should be not guilty of murder, but guilty of manslaughter.

This form of manslaughter is often referred to as 'excessive self-defence'.

(f) Duress

Duress Generally.

Duress is a defence to most crimes if the actor was acting under the threat of death or serious bodily harm: Lynch v DPP [1975] AC 653. Once raised, the Crown must exclude the defence beyond reasonable doubt: Youssef (1990) 50 A Crim R 1.

To convict, the jury must be satisfied that:

• there is no reasonable possibility that the accused did the acts by reason of a threat of death or really serious harm, or
• that there is no reasonable possibility that a person of ordinary firmness (of the age and sex of the accused) would act the way the accused did, or
• the accused failed to take advantage of an opportunity which was reasonably open to him to render it ineffective: Graham [1982] 1 All ER 801, Abusafiah (1991) 56 A Crim R 424.

Abusafiah sets out standard directions. Slightly different standard directions in the Bench Book were approved by the Court of Criminal in Makriynikos [2006] NSWCCA 170 at para [11]. In Victoria the direction is whether or not a person of reasonable firmness could or might have acted the way the accused did: Lanciana (1996) 84 Crim R 268.

A crucial question in determining whether or not the accused failed to take advantage of an opportunity to render the threat ineffective was whether or not the accused could have contacted the police: Taiapa v The Queen [2009] HCA 53.

In theory, self-defence may be available to a principal in the second degree who is not present when the offence is committed (for example someone who contracts with another to kill someone) (see Ryan and Coulter v Regina [2013] NSWCCA 175 esp at para [42], but clearly there would be difficulties in succeeding in this defence on a practical level.

In Commonwealth offences, duress will be available if and only if the defendant reasonably believes that

• a threat will be carried out unless an offence is committed
• there is no reasonable way the threat can be rendered ineffective, and
• the conduct is a reasonable response to the threat

(Commonwealth Criminal Code section 10.2). It has been held that the objective test takes into account the objective circumstances of the threats not the accused's perceptions of them: Oblach v Regina (2005) 65 NSWLR 75, 158 A Crim R 586. The defence should be left to the jury if there is some evidence, which taken at its highest would raise the three matters referred to above as a reasonable possibility: Commonwealth Criminal Code section 13.3, Mirzazadeh v Regina [2016] NSWCCA 65 esp at paras [65] to [66].

Duress and Murder.
Formerly duress was a defence available to principals in the second degree for murder (Lynch v DPP [1975] AC 653) but not to principals in the first degree: McConnell, McFarland and Holland [1977] 1 NSWLR 714 overruling McCafferty [1974] 1 NSWLR 89. In England duress is not available to either: Howe [1987] 1 All ER 771, followed in NSW in Bassett and Steele (1994) PD [181].

(g) necessity

Necessity.
Necessity may be a defence where a person does a criminal act by reason only of his mind being overborne by threats of death or serious bodily violence, to himself or another, such that an ordinary person of the like age and sex, would have done the act: Lawrence [1980] 1 NSWLR 122.

For Commonwealth offences, the defence is only available if

• circumstances of sudden or extraordinary exist, and
• committing the offence is the only reasonable way to deal with the emergency, and
• the conduct is a reasonable response to the emergency

(Commonwealth Criminal Code section 10.3).

The defence of necessity may assist a fireman driving through a red light (Buckoke v Greater London Council [1971] Ch 655) but not homeless squatters (London Borough of Southwark v Williams [1971] 2 All ER 175) or murderers: Dudley and Stephens (1884) 14 QBD 273. However it may be a defence to escape: Loughnan [1981] VR 443, but there will usually need to be evidence that protection was not available: Rogers (1996) 86 A Crim R 542.

Abortion.

At common law an abortion was lawful if the doctor honestly grounds that

• it is necessary to preserve the woman from serious danger to her life or physical or mental health and
• in circumstances not out of proportion to the danger to be averted (Davidson [1969] VR 667).

However, abortion is now dealt with under the Abortion Law Reform Act which makes this defence unnecessary.

(h) provocation

Provocation.

Provocation is only a defence to murder (s. 23(1) Crimes Act) and is a partial defence, which, if succesful, reduces murder to manslaughter (s. 23(1) Crimes Act). For other offences (such as assault and battery) it may be a mitigating factor on sentence but it not a defence: Fontin v Katapodis (1962) 108 CLR 177.

When can Provocation be left to the jury?
If the issue of provocation arises on the evidence it must be left to the jury even if the defence counsel does not wish it raised: Van Den Hoek v The Queen (1986) 161 CLR 158. It can be raised at committal: Kolalich v DPP (1991) 173 CLR 222, 57 A Crim R 237, 66 ALJR 25.

Elements of Provocation.
An act that otherwise would be murder will be reduced to manslaughter if there is 'extreme provocation'. To negate the defence, the Crown must negtaive beyond reasonable doubt one of these elements (see Regina v Cliff (No. 5) [2018] NSWCCA 166 at [12].

• the act of the accused causing death was in response to conduct of the deceased towards or affecting the accused;
• the conduct of the deceased constituted a serious indictable offence
• the conduct of the deceased caused the accused to lose control
• the conduct of the deceased was such that it could have induced an ordinary person in the position of the accused to have so far lost self control as to form an intention to kill or inflict gbh (s. 23(2) Crimes Act).

The defence does not apply if (s. 23( 3)):

• the conduct was only a non-violent sexual advance towards the accused; or
• the accused incited the violence in order to provide an excuse to use violence against the deceased

The onus of proof is on the Crown to exclude provocation beyond reasonable doubt once it is raised as an issue by some evidence: s. 23(7) Crimes Act.

The decision as to whether or not to leave the defence of provocation to the jury

It may be open to a jury to have a reasonable doubt as to whether or not the prosecution has excluded provocation even though on the facts it would be unreasonable to find affirmatively that provocation existed: see Lindsay v The Queen (2015) 89 ALJR 518 esp at para [38].

Model Directions.
Model directions for provocation are found in Starr (NSW SC Hunt J 12/10/94 u/r). To exclude the defence the Crown must establish beyond reasonable doubt either:

• the act of the accused causing death did not result from a loss of self control on the part of the accused, or
• any such loss of self-control had not been caused by conduct of the deceased towards the accused or
• the conduct of the deceased was not such as could have caused an ordinary person in the position of the accused to have so far lost his self-control as to have formed an intention to kill or inflict GBH.
  

In addition, the Crown could negate provocation by proving beyond reasonable doubt that the conduct of the deceased did not constitute an indictable offence.

The Provocation.
It used to be said that mere words (and in particular a confession of adultery) would never suffice to provocation ( Holmes [1946] AC 588) but see Parker v The Queen (1963) 111 CLR 610 and Moffa v The Queen (1977) 138 CLR 601. It is not necessary to show that the words are 'grossly insulting': Lees [1999] NSWCCA 301. The provocation needn't come shortly before the killing: Chhay (1994) 72 A Crim R 1, s.23(4) Crimes Act.

Intoxication and provocation

In determining whether or not the act causing death was in response to extreme provocation, the self-induced intoxication of the accused cannot be taken into account: s. 23 (5) Crimes Act. That appears to apply to both the objective and the subjective test for provocation. As to the fact that alcohol is not to be taken into account for the objective part of the test, see Croft (1981) 1 NSWLR 126 and Regina v Cook (1985) 39 SASR 225 (esp at 235).

The Subjective Test.
The words or conduct must be of the deceased in the presence of the accused (Quartly (1986) 22 A Crim R 25) or possibly a person associated with the accused closely (Tumananko (1992) 64 A Crim R 149, Hall [2001] NSWCCA 202) but words or actions not in the presence of the accused may provide a context to otherwise innocent words by the deceased: Queen v R (1981) 28 SASR 321. However the decision of Quartly was doubted by the High Court in Davis (1998) 73 ALJR 139.

The question of whether having lost self-control the accused was no longer provoked is to be judged on a subjective basis: Masciantonio v The Queen (1995) 183 CLR 58, 69 ALJR 598, (1995) 80 A Crim R 331.

There must be a loss of self control, not just anger or excitement: Peisley (1990) 54 A Crim R 42.

The Objective Test.
Under previous legislation, it ws held thatthe content and the extent of the provocation must be viewed from the viewpoint of the accused, including his age, race, sex, physical features (Stingel v The Queen (1990) 171 CLR 312 at 326) but not exceptional pugnacity or excitability (Camplin (1978) AC 705), and not affected by liquor: Croft (1981) 1 NSWLR 126, The significance of the deceased's conduct is to be judged by its significance to the accused, including his personal history and experiences (including a peculiar sensitivity to homosexual advances): Green v The Queen (1997) 148 ALR 659, (1997) 72 ALJR 19.

However it was suggested (but not finally determined) in Regina v Turnbull (No. 25) [2016] NSWSC 831 that the removal of the words 'in the position of the accused' from the section meant that the personal attributes of the accused (apart from his age) could not be taken into account in determining the 'ordinary person' test (see esp paras [90] to [91]).

The jury must then consider whether or not the provocation so assessed might cause an ordinary person of the age of the accused to do what he did (Stingel at 331, Baragith (1991) 54 A Crim R 240). The question was not what an ordinary person would have done, but what the ordinary person could have been induced to to intend: Green v The Queen (1997) 191 CLR 334.

Ordinary Person.
'Ordinary' person does not mean 'reasonable person' (Stingel at 328) or an average person (at 331) because the ordinary person is a person whose powers of self-control are within the limits of what is ordinary for a person of that age.

Law reform.
There are no longer rules that:

• there be reasonable proportion, although this is relevant to the subjective test: Quartly
• the act is done suddenly (s. 23(4) Crimes Act)
• the act was done with no intention to kill or take life (s. 23(5) Crimes Act ).

(s. 23(3) Crimes Act)

Sentencing in Provocation Cases.
A helpful consideration of the range and principles in a sentence for manslaughter by reason of provocation is found in Alexander (1995) 78 A Crim R 141.

(i) Age of Accused

Children.

Children under the age of 14 are presumed (depending on their age, rebuttably or irrebutably) not to be sufficiently intellectually and morally developed to appreciate the difference between right and wrong and thus lack the capacity for mens rea of a crime: RP v The Queen (2016) 259 CLR 641, [2016] HCA 53 at para [9]. This presumption is referred to as 'doli incapax'.

There is an irrebuttable presumption that a child under 10 cannot be guilty of an offence: s. 5 Children (Criminal Proceedings) Act, Commonwealth Criminal Code, section 7.1. For children from 10 to 14 the test is rebuttable: Commonwealth Criminal Code section 7.2.

The Crown must have establish beyond reasonable doubt that the child knew when he/she did the act that it was 'seriously wrong' or 'gravely wrong' as distinct from mere naughtiness or childish mischief:RP v The Queen (2016) 259 CLR 641, [2016] HCA 53, esp at para [9] BP and SW [2006] NSWCCA 172 esp at para [27]. See also RP v Regina [2015] NSWCCA 215 at [123] to [137] and [34] to [38]. The test has also been expressed as whether or the Crown has shown that the child knew that the act would subject him to punishment: Whitty (1993) 66 A Crim R 462.

Evidence in a doli incapax case

Mere proof of the act charged, no matter how obviously wrong, will not suffice to rebut the presumption: RP v The Queen (2016) 259 CLR 641, [2016] HCA 53, esp at para [9], C v DPP [1996] 1 AC 1.

As the age of the defendant approaches the age of 14, the burden on the Crown reduces (C v DPP).

In C v DPP [1996] 1 AC 1 Lord Lowry said that ways in which the Crown might rebut the presumption of doli incapax may be (at 38-9):

(1) what the defendant did before or after the act;

(2) what the defendant says to police

(3) what the defendant says to a psychiatrist (if he agrees to see one)

(4) evidence from someone who knows what the defendant well, such as a teacher

As to what the defendant did after the act, it has been observed that running away may be equivocal (C v DPP at 38-9). Statements by the defendant to a complainant in a sexual assault case may be equivocal as to whether they show that the act was seriously morally wrong or merely 'naughty or mischievous': see RP v The Queen (2016) 259 CLR 641 at at para [33], BC v Regina [2019] NSWCCA 111 esp at para [52], BP and SW v Regina [2006] NSWCCA 172 at [29]

The prior convictions of the child are not admissible (CRH (1997) 4 Crim LN [661]) unless the facts of the case are not in dispute (I v Griffiths (1998) 5 Crim LN [877]).

6/. Offences of Violence.

Assault and Battery.
Assault can constitute either

• assault- putting the victim in fear of imminent physical harm
• battery- applying physical harm to the person of the victim

Assault.
The mens rea for assault is intention to cause apprehension or recklessness. It is not clear if the foresight of the probability or possibility of required: compare MacPherson v Brown (1975) 12 SASR 184 and Venna [1975] 3 WLR 737. The actus reus is that the victim was actually put in fear. It may be necessary to show that a person of reasonable firmness would be put in fear: Barton v Armstrong [1969] 2 NSWLR 451. Pointing a toy pistol will suffice: Everingham (1949) 66 WN (NSW) 122.

Mere Words.
Words used over the telephone may constitute assault but there must be a threat of violence which can be immediately be carried out: Barton v Armstrong [1969] 2 NSWLR 451, Knight (1988) 35 A Crim R 314.

Hostile Intent.
As a general rule it is not necessary to establish a hostile intent. However if there is a minor infliction of force the existence of a hostile intent may convert it into an assault: Boughey v The Queen (1986) 161 CLR 10.

Consent.
Consent is a defence to assault where the blow is not struck in anger, but not where the blows where likely or intended to cause actual bodily harm: Donovan [1934] 2 KB 498, Brown (1992) 2 All ER 552. Playing sport does not involve consent to assaults: Stanley (1995) PD [120].

Consent in medical cases

In a criminal case where the allegation is that a medical procedure constitutes some form of assault, it is sufficient defence if the accused establishes that the patient was advised in broad terms of the nature of the procedure to be performed: Rogers v Whitaker (1992) 17 CLR 474 at 490, para [14], Regina v Reeves [2013] NSWCCA 34 esp at para [86], Reeves v The Queen [2013] HCA 57 at para [35]. For a prosecution to succeed, it is unnecessary for the prosecution to establish malice: Regina v Reeves [2013] NSWCCA 34 esp at para [169].

Abortion

Until 2019, abortion was a crime in NSW, unless the defence of necessity applied. In 2019 the Abortion Law Reform Act was passed. Under s. 5 Abortion Law Reform Act, a medical specialist may perform an abortion with the informed consent of the patient up to 22 weeks pregnant. Under s. 6, an abortion may be performed after the patient is more than 22 weeks pregnant but only with additional requirements. There is an offence of an unqualified person performing an abortion: s. 82 Crimes Act.

Battery.

Spitting on someone constitutes a battery: JWH (1997) 4 Crim LN [763].

Common Assault

Common assault is an offence which carries a maximum penalty of 2 years gaol: s. 61 Crimes Act. It is a Table 2 offence.

Contrary to a literal reading of s. 8 Criminal Procedure Act, it has been held that a charge of common assault can be dealt with on indictment in higher courts: Fisher (2002) 54 NSWLR 467.

Defence of lawful correction

For an offence arising out of the application of force to a child, there is a defence of 'lawful correction, if the person applying the physical force was a parent of the child, or a relative acting for a parent, and the infliction of force is for the purpose of punishment, and if the application of force was reasonable. Certain types of force are not to be regarded as reasonable (unless the force is trivial or neglible), namely force applied to the head or neck of a child, or to any part of a child that would cause harm for more than a short period: s. 66AA Crimes Act. The onus of establishing the defence is on the accused: DPP v FD [2017] NSWSC 679.

Actual Bodily Harm.
Actual bodily harm is any harm more than transient and trifling, but need not be permanent: Donovan. Bruises and scratches are typical examples: McIntyre v Regina (2009) 198 A Crim R 549 at para [44]. Emotional harm does not suffice unless there is evidence of psychiatric harm: Chan Fook (1994) 1 WLR 689. It is not necessary to prove intent to inflict actual bodily harm: Percoli (1986) 42 SASR, Williams (1990) 50 A Crim R 213. Assault occasioning actual bodily harm (s. 59) carries 5 years, and 7 years if in company. It is a Table 2 offence.

Meaning of Grievous bodily harm.

'Grievous bodily harm' means bodily harm of a really serious kind: Smith (1960) 3 All ER 161. This may not include disfigurement only: Tranby (1991) 52 A Crim R 228. Where reckless infliction of grievous bodily harm is charged, the prosecution must prove that the accused foresaw the possibility (as opposed to probability) of grievous bodily harm being inflicted: Aubrey v The Queen [2017] HCA 18 esp at paras [45] to [47].

'Grievous bodily harm' includes the destruction of the foetus of a pregnant woman, whether or not that woman suffers any other harm (other than in the course of a medical procedure or in the course of a termination authorised under the Abortion Law Reform Act (2019): see s. 4 Crimes Act.

It is not necessary for the Crown to establish that the defendant applied force to the complainant causing immediate injury. Thus, for example, causing someone to contract a disease (such as AIDS) can constitute inflicting grievous bodily harm: Regina v Aubrey [2012] NSWCCA 254, Aubrey v The Queen [2017] HCA 18. An undisplaced fracture not requiring ongoing treatment and not causing a permanant injury was held not to constitute 'grievous bodily harm' in Swan v Regina [2016] NSWCCA 79 esp at paras [74] to [78].

Meaning of Wounding

For there to be a wounding there must be a breaking or cutting of the 2 layers of the skin: Smith (1837) 8 Carrington and Payne 173, Shepherd [2003] NSWCCA 351. The two layers of the skin are usually referred to as the dermis and the epidermis.

Offence of Wounding or grievous bodily harm with intent

It is an offence to wound or inflict grievous bodily harm on another person with intent to wound, or inflict grievous bodily harm, or to resist or prevent the accused or someone else's arrest or detention: s. 33 Crimes Act. The penalty is 25 years imprisonment: s. 33 Crimes Act. For offences of inflicting grievous bodily harm with intent (s. 33) committed after 3 February 2003 the 'standard non-parole period' is 7 years.

As to the meaning of 'wounding' and 'grievous bodily harm', see above.

Where maliciously inflict gbh with intent is charged, there must be specific intent, not merely recklessness: McKnoulty (1995) PD [18].

Recklessly inflicting grievous bodily harm

It is an offence to recklessly inflict grievous bodily harm on another person: s. 35 Crimes Act.

As to the meaning of 'grievous bodily harm', see above under that heading.

The mens rea for recklessly inflicting grievous bodily harm or wounding is recklessness as to causing actual bodily harm (not wounding or inflicting grievous bodily harm) to the victim or any other person: s. 35 (1) (a) Crimes Act. Recklessness in this context means that the accused realised that the accused realised (or in other words was aware or had foresight) that there was a possibility of actual harm being caused: Blackwell v Regina (2011) 208 A Crim R 392 esp at paras [78], [82].

Under a previous version of this offence, it was held that the mens rea (or mental element) for the offence of malicious inflict grievous bodily harm or wounding is for the offence is foresight of the possibility of grievous bodily harm, and that foresight of some harm is insufficient: Blackwell v Regina (2011) 208 A Crim R 392 esp at para [82]. However, the insertion of s. 35 (1) (a) Crimes Act means that foresight of actual bodily harm is sufficient, in this respect overruling Blackwell v Regina (2011) 208 A Crim R 392.

The penalty for recklessly inflicting grievous bodily harm is 10 years (s. 35 (2)), or 14 years if in company (s. 35 (1))

For the offence of recklessly inflicting grievous bodily harm (s. 35 (2)), there is a standard non-parole period of 4 years, or, if in company (s. 35 (1)), 5 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act.

Reckless Wounding.

It is an offence to recklessly wound another person: s. 35 Crimes Act.

As to the meaning of 'wounding', see above under that heading above.

As to the mens rea for this offence, see above under 'recklessly inflict grievous bodily harm', just above.

The penalty is 7 years (s. 35 (4)), or if in company 10 years (s. 35 (3)).

There is a standard non-parole period of 3 years for the basic offence of reckless wounding (s. 35 (4)), and for the offence of reckless wounding in company ( s. 35 (3)), 4 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act.

Genital mutilation

Since 1995 it has been an offence to 'excise, infibulate or otherwise mutilitate' the whole or any part of the labia majora, the labia minora, or the clitoris of another person: s. 45 Crimes Act. The offence carries 21 years gaol. It has been held that 'mutilitate' means to injure to any extent, and that the clitoris includes the clitoral hood: The Queen v A2 [2019] HCA 35.

Assault Police.


For the offence of assaulting, stalking, or intimidating a police officer, in the execution of his duty, where no actual bodily harm is inflicted, the maximum penalty is 5 years (s. 60(1)).

For the offence of assaulting a police officer, while in the execution of his duty, and inflicting actual bodily harm, the maximum penalty is 5 years (s. 60(2)). For offences committed after 3 February 2003, the 'standard non-parole period' is 3 years.

For the offence of maliciously wounding or inflicting grievous bodily harm on a police officer while in the execution of his duties, the maximum penalty is 12 years (s. 60(3)). For offences committed after 3 February 2003, the 'standard non-parole period' is 5 years.

Generally these offences only apply if the victim was a police officer while the officer was in the course of execution of his duty. However, these offences apply if the officer was not on duty, but the assault was committed in consequence of or in retaliation for actions of the police officer in the execution of his/her duty, or because the victim was a police officer (s. 60(4)).The prosecution must generally show that the officer was acting in the execution of his duties: Donnelly v Jackman (1970) 1 All ER 987, Weekes v Lahood [CN 129].

It seems that in a prosecution for assault police it is not necessary to prove that the person knew that the person was a policeman: The Queen v Reynhoudt (1962) 107 CLR 381, criticised by Brennan J in He Kaw Teh v The Queen (1985) 157 CLR 523, 60 ALR 449 at 489.

In order to prove that a person has 'intimidated' a police officer it is necessary to show either that the person's conduct has induced fear in the police officer or effected his conduct: Mellor v Low (2000) 48 NSWLR 517. A person convicted of intimidating a police officer cannot based on the same conduct also be convicted of harassing a police officer because the latter is subsumed in the former: Vella v DPP (2005) 156 A Crim R 113. It has been held that a threat communicated from a defendant communicated to the alleged victim by another police officer can constitute intimidation: DPP v Best [2016] NSWCSC 261 esp at para [50].

The offence of intimidation is an offence of specific intent so a defence of intoxication applies.

Resist or Hinder Police

It is an offence to resist or wilfully obstruct a police officer in the execution of his/her duty: s. 58 Crimes Act. This offence carries a maximum penalty of 5 years imprisonment.

It is an offence to resist or hinder a police officer in the execution of his duty: s. 546C Crimes Act. The offence of resisting or hindering a police officer in the execution of his/her duty carries a penalty of 12 months imprisonment or $1100:

The actus reus of hinder police is any active interference or obstruction which makes the duty of the police officer substantially more difficult of performance: Leonard v Morris (1975) 10 SASR 528 at 531.

It has been held that a person who runs away from police is not guilty of hindering police: Taufahema (2006) 162 A Crim R 12.

Using an Offensive Instrument to Prevent Arrest.

It is an offence to possess, use, attempt or threaten to use an offensive weapon with intent to commit an indictable offence or to prevent or hinder the arrest of any person or any investigation. The maximum penalty is 12 years or if in company 15 years: s. 33B.

An inoffensive object may become offensive by its use and intent: Hamilton (1993) 66 A Crim R 575. An equivocal object like a knife is only an offensive instrument if there is an intention to use it as a weapon: Haigh (1995) PD [264].

In a very strange decision the Court of Criminal Appeal has held that where an accused drives a vehicle intending to break the grip of a police officer with a grip in him, the car is being used as an 'offensive instrument': Regina v Harkins [2015] NSWCCA 263.

Discharging a Firearm with Intent

It is an offence to discharge or attempt to discharge loaded arms with intent to inflict grievous bodily harm or with intent to resist or prevent the lawful arrest of any person. The penalty is 14 years or if in company 20 years (s. 33A Crimes Act).

It is an offence to shoot at or attempt to discharge loaded arms at any person with intent to resist the lawful arrest of any person. The penalty is 25 years: s. 33 Crimes Act. For offences committed after 3 February 2003 the 'standard non-parole period' is 7 years. To 'shoot at' means to intend to hit a person: Marshall (1987) 26 A Crim R 259, Abdallah (2005) 157 A Crim R 219 esp at para [56].

Kidnapping.

It is an offence to take or detain a person without the person's consent for ransom or for any other advantage: s. 86 Crimes Act. 'Detain' includes 'causing the victim to remain where he or she is' (s. 86(7)). It appears that it is necessary for the prosecution to establish that the complainant did not consent to be taken away or detained, and that the accused did not believe that she was willing or consenting: DMC (2002) 137 A Crim R 246.

'Advantage' is wide enough to include an intention to have sexual intercourse: Rowe (1996) 89 A Crim R 467, Robson [1978] 1 NSWLR 73.

If the victim is under 16, the accused is to be treated as acting without the consent of the child, unless the accused is the parent of the child, or is acting with the consent of a parent, and is not in contravention of any order of the court relating to the child: s. 86(5)-(6)

The elements of aggravated detain for advantage are that

• the accused detained the victim
• the detention was without the victim's consent
• the accused did this with the intention of obtaining an advantage
• that the accused was in company or actual bodily harm is inflicted on the victim during or immediately before or after the detaining
  

Charlesworth v Regina [2009] NSWCCA 27.

The penalty is

• 14 years for the 'basic offence'
• 20 years for the 'aggravated offence' of being in company or committing the offence when actual bodily harm is inflicted on the victim immediately before, during or immediately after the commission of the basic offence
• 25 years for the 'specially aggravated offence' if both the aggravating factors referred to above are present

'Claim of right' is not a defence to kidnapping: Williams (2006) 160 A Crim R 151.

A person can be guilty of detain for advantage if he is present during some part of the detention and provided assistance and encouragement: Charlesworth v Regina [2009] NSWCCA 27.

Common law offences of kidnapping and false imprisonment

It seems that there is still a common law offence of kidnapping: Nguyen and Tran (1998) 99 A Crim R 151.

At common law there is also an offence of unlawful imprisonment. The elements of the offence are:

• the accused compelled the victim to remain in a particular place without the victim's consent
• the restraint was deliberate and intended to constrain the victim from leaving
• the accused had no lawful excuse for his conduct

(JCS & JMS (2006) 164 A Crim R 1 esp at para [22]).


Sexual Intercourse.

Sexual intercourse is defined by statute as including oral sex, anal sex, insertion of objects, and continuation of any of the above: s. 61HA. It doesn't matter how much of the lips are penetrated: Preval [1984] 3 NSWLR 647. Cunnilingus does not require proof of penetration: Randall (1991) 53 A Crim R 380.

'Sexual intercourse' is defined to exclude sexual connection for proper medical purposes (s. 61HA (2)).

Consent

These provisions apply to offences where absence of consent is an element of the offence, and offences of attempting such an offence: s. 61 HG.

A person consents to have sexual intercourse if the person freely and voluntarily agrees to sexual intercourse: s. 61HI (1).

A person may withdraw consent to sexual intercourse by words or conduct at any time: s. 61HI (2). Sexual ineercourse which occurs after consent is withdrawn is sexual intercourse without consent: s. 61 HI (3).

The fact that a person does not offer physical or verbal resistance to sexual intercourse does not of itself establish that the person is to be regarded as consenting: s. 61HI (4).

A person who consents to a particular form of sexual intercourse is not, by reason only of that fact, to be taken to have consented to another form of sexual activity (for example, consent to sexual activity with a condom, is not by reason of that fact alone, to be taken to be consent to sexual activity without a condom): s. 61 HI (5).

A person who consents to have sexual intercourse with one person one one occasion is not, by reason of that fact alone, to be taken to have consented to sexual intercourse that person on another occasion, or with another person on that occasion or another occasion (s. 61 HI (6)).

The provisions relating to consent in s. 61HF to s. 61HK apply to offences of attempted sexual intercourse without consent (s. 61 HG).

Consent Obtained by Threats

If a person consents because of intimidatory or other conduct, or other threat not involving a threat of force, it can be established that a person does not consent: s. 61HE (8). This provision appears to have overturned Regina v Aiken (2005) 63 NSWLR 719 which held that where the threat was non-violent (such as a threat to report an alleged shop-lifter) it could not be said that subsequent sexual intercourse was non-consensual. Similarly it may be established that a person does not consent if the consent is given because of the abuse of a position of authority or trust: s. 61HE (8).

Absence of consent

A person's consent to have sexual intercourse is negated:

(a) if the person does not have the capacity to consent to the sexual intercourse, (including because of age or cognitive incapacity), or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained (s. 61HE (5)).

The Crimes Act specifically provides that the grounds upon which it may be held that a person does not consent to sexual intercourse include the following:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust (s. 61HE (8)).

Apparent consent induced by a mistake

A person who consents to sexual intercourse with a person who knows that the victim has a mistaken belief as to:

(a) the identity of the person,

(b) a belief that the sexual activity is for health or hygenic purposes,

(c) or as to whether or not they are married, or

(d) any other mistaken belief about the nature of the activity induced by fraudulent means

does not consent: s. 61HE (6). If the accused knows that there is no consent to sexual intercourse if he or she knows that the other person consents under such a mistaken belief: s. 61HE (7).

Knowledge of absence of consent

In a prosecution for the offence of sexual intercourse without consent the prosecution must prove that the accused knew that the complainant did not consent.

The prosecution can establish that the accused had knowledge that the complainant did not consent to having sexual intercourse by establishing any of the following:

(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse (s. 61HE (3) )

Recklessness indifference as to the consent of the victim will suffice. Thus where the accused is aware that the victim possibly might not be consenting there is no consent: Zorad [1979] 2 NSWLR 764, Hemsley (1988) 36 A Crim R 334. The test is an entirely subjective one: O'Meagher (1997) 101 A Crim R 196. Where the accused does not consider the issue of consent at all, there is also no consent: Kitchener (1993) 29 NSWLR 696, Tolmie (1995) 84 A Crim R 293. If the accused is aware that there is a possibility that the complainant is not consenting, but goes ahead anyway, he is guilty of sexual intercourse without consent on the basis of recklessness: Banditt v The Queen (2005) 224 CLR 262 esp at paras [35] to [38].

The third leg of the mens rea ('the person has no reasonable grounds for believing...') is a divergence from the common law. At common law, the test of knowledge that the complainant was not consenting was a purely subjective test: see for example DPP v Morgan [1976] AC 192. However the test of having no reasonable grounds to believe would appear to be a more stringent test a test of 'did not reasonably believe'.

Intoxication and Consent

As discussed above, it can be established that a person does not consent if the person consents while substantially intoxicated by alcohol or any drug (s. 61HE (8) (a)).

In determining whether or not the accused knew that the complainant was consenting, the jury or judge must take into account all the circumstances of the case, including any steps the accused took to ascertain whether or not the complainant was consenting, but not taking into account the effects of self-induced intoxication: s. 61 HE (4). The 'steps' taken to ascertain whether or not the complainant is consenting must involve 'the taking of some positive act', although it need not be a physical one. It would appear to include the accused considering or reasoning in response to things which he or she perceives: Regina v Lazarus [2017] NSWCCA 279 esp at para [147].

Section 61HE (unlike its predecessor) now applies to offences of sexual assault and attempted sexual assault. As a result, the provision that self-intoxication of the accused could not be taken into account in determining whether or not the accused knew that the complainant was consenting applies to attempted sexual assault as well as sexual assault, overruling WO v DPP [2009] NSWCCA 275.

It would appear to follow that when two highly intoxicated people have what would otherwise be consensual sexual intercourse, both may theoretically be guilty of sexual intercourse without consent.

Abolition of Immunities.

It is no longer the case that boys under the age of 14 are presumed to be incapable of sexual intercourse: s. 80AC. The immunity of husbands has also abolished: s. 61KA. This abolition was held not to be unconstitutional: The Queen v L (1991) 174 CLR 379, 66 ALJR 36.

Sexual Assault with GBH.
Sexual assault category 1 is inflicting grievous bodily harm on the victim or a third person present and nearby with intent to have sexual intercourse or threatening to inflict actual bodily harm on the victim or a person nearby with an offensive weapon or instrument: s. 61K. If the threat of harm by means of an offensive instrument is relied on the Crown does not have to prove that an offensive weapon was produced: Tout (1987) 11 NSWLR 251. The penalty is 20 years.

Aggravated Sexual Assault.
Sexual assault is treated as aggravated if there are any of the following circumstances of aggravation:

• the offender maliciously inflicts actual bodily harm on the victim or any other person who is present or nearby at the time of, immediately before or immediately after the sexual assault
• the offender threatens the victim or any person present or nearby with actual bodily harm by means of an offensive weapon or instrument
• the offender threatens to inflict grievous bodily harm or wounding on the victim or any other preson who is present or nearby
• the offender is in company
• the victim is under 16
• the victim is under the authority of the offender
• the victim has a serious physical or intellectual disability
• the offender breaks into any dwelling house or other building with the intention of committing the offence or any other serious offence
• •the offender deprives the victim of his or her liberty for a period before or after commission of the alleged offence

For aggravated sexual assault the maximum penalty is 20 years (s. 61J). For offences committed after 3 February 2003, the 'standard non-parole period' is 10 years

Where s. 61J is charged, it is necessary for the prosecution to establish that the complainant did not consent even if the complainant is under 16: McGrath v Regina [2010] NSWCCA 48.

As to the meaning of 'in company', it has been held that there must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission: Button and Griffen (2002) 54 NSWLR 455.

'Under the authority of a person' is defined as meaning if a person is under the 'care, or under the supervision or authority', of another person (s. 61H (2)). It has been held that those words are ordinary English words which do not require further explanation: KSC v Regina [2012] NSWCCA 179 esp at para [125]. Acting under authority may includes the employer/employee relationship: DH (1997) 4 Crim LN [725].

Where the age of the victim is alleged to be an aggravating factor, it is not clear that it must be proved that the accused knew of the complainant's age.

Aggravated Sexual Assault In Company
Aggravated sexual intercourse in company is committed when

• the offender has sexual intercourse with another person knowing that person does not consent to sexual intercourse
• the offender is in company of another person or persons
• one of the following aggravating circumstances applies:

• the offender maliciously inflicts actual bodily harm on the victim or any other person who is present or nearby at the time of, immediately before or immediately after the sexual assault OR
• the offender threatens the victim or any person present or nearby with an offensive weapon or instrument at the time of, immediately before or immediately after the sexual assault OR
• the offender deprives the person of his/her liberty for a period before or after the commission of the offence.

The maximum penalty is life imprisonment: s. 61JA. For offences committed after 3 February 2003, the 'standard non-parole period' is 15 years.

Sexual Assault (not aggravated)

Sexual Assault is having sexual intercourse with a person without their consent knowing that they are not consenting: s. 61I. See also Morgan v DPP [1976] AC 182, McEwan [1979] 2 NSWLR 926.

Where s. 61I is charged, it is necessary for the prosecution to establish that the complainant did not consent even if the complainant is under 16: McGrath v Regina [2010] NSWCCA 48.

The maximum penalty is normally 14 years. For offences committed after 3 February 2003, the 'standard non-parole period' is 7 years.

Sexual touching (formerly 'indecent assault')

Sexual touching is touching another person with a part of the offender's body or anything else through anything (including clothing) in circumstances where a reasonable person would regard the touching to be sexual. In determining whether the touching is sexual, matters to be considered are whether the area touched is the breasts (in the case of a female) or the genitals or anus, and whether the person doing the touching does so for the purpose of sexual arousal or gratification: s. 61HB.

Where a person sexually touches the alleged victim, or incites someone else to touch the alleged victim, or incites the alleged victim to sexually touch the person or another person, without the consent of the alleged victim, and knowing the alleged victim is not consenting, the person is guilty of sexual touching (s. 61KC).

Where the victim is over the age of consent, the Crown must prove that the accused was aware that the complainant did not consent, or the accused was reckless as to consent: Bonora (1994) 35 NSWLR 74, Kuckailis [2001] NSWCCA 333. The provisions under s. 61HE as to knowledge of the accused that the complainant does not consent (including having no reasonable grounds for beleiving that the person does not consent) do not apply to indecent assault or aggravated indecent assault (s. 61HE (1), Holt v Regina [2019] NSWCCA 50.

The touching can be a non-hostile touching.

Under previous legislation, it was held that here the part of the body that has been touched has no sexual connotation (not genitalia or breasts) there must be evidence of an indecent intention: Harkin (1989) 38 A Crim R 296.

Where the alleged vicitm is an adult, the maximum penalty is 5 years imprisonment.

Where the victim is between 10 and 16 years old, the maximum penalty is 10 years: s. 66DB.

Where the victim is under 10 years old, the maximum penalty is 16 years: s. 66DA. There is a standard non-parole period of 8 years.

Aggravated sexual touching

Where the offence of sexual touching is established, and a circumstance of aggravation is proved, the offender is guilty of aggravated sexual touching. The circumstances of aggravation are when the offence is committed in company, where the victim is under the authority of the offender, or where the alleged victim has a physical disability or a cognitive impairment.

The maximum penalty for aggravated sexual touching is 7 years: s. 61KD.

Sexual Intercourse with Minors
A person who has sexual intercourse with a child under 10 is liable for life imprisonment (s. 66A). For offences committed after 3 February 2003, the 'standard non-parole period' is 15 years.

A person who has sexual intercourse with a child between 10 and 14 is liable for 16 years imprisonment (s. 66C (1)). The standard non-parole period is 7 years. However if the offence is committed in circumstances of aggravation (including being under authority), the penalty is 20 years (s. 66C (2)). The standard non-parole period is 9 years.

A person who has sexual intercourse with a child between the age of 14 and 16 is liable to a penalty of 10 years (s. 66C (3)). If the offence is committed in circumstances of aggravation, the penalty is 12 years (s. 66C (4)). For the aggravated offence, the standard non-parole period is 5 years.

'Circumstances of aggravation' are as discussed under 'Aggravated Sexual Assault' discussed above (with the omission of being under the age of 16, and the addition of taking advantage of the victim being under the influence of alcohol or drugs).

Where a person has a sexual intercourse with a child between 16 and 17 and under his/her 'special care', the person is liable to 8 years imprisonment. If the child is between the age of 17 and 18, the maximum penalty is 4 years (s. 73 Crimes Act). A person is in a relationship of 'special care' with a person if he/she is the person's step-parent, guardian, authorised carer, de facto of any such person, teacher, coach, prison officer or health professional of the child (s. 73 Crimes Act). The provision now applies to a member of the teaching staff at a school where the victim is a student, overruling:Regina v PJ [2017] NSWCCA 290. The provision now applies to a case where a de facto has sexual intercourse with his de facto's daughter overruling Miller (2001) 127 A Crim R 344. It appears that 'foster parent' includes someone who is in a de facto relationship with the mother of a complainant: JAD v Regina [2012] NSWCCA 73.

Consent is no defence for these offences where the child is under 16 (s. 80AE Crimes Act).

The former statutory defence of mistake as to age when a child is between the ages of 14 and 16 (s. 77) was abolished. However the High Court held in CTM v Regina [2008] HCA 25 that the defence of honest and reasonable mistake about the age of the complainant was still available as a defence. The defence has an evidential burden of raising mistake as a defence, but once this is done, the prosecution has the obligation of negating honest and reasonable mistake beyond easonable doubt (see esp para [35]).

Persistent Sexual Abuse

A person has an 'unlawful sexual relationship' with a child under the age of 16 commits an offence under s. 66EA Crimes Act, which carries 25 years. An unlawful sexual relationshipis one where a person engages in two or more unlawful sexual acts over any period.

Incest
Having carnal knowledge with a parent, grandparent, sibling child or grandchild is incest. The penalty is 8 years (s. 78A). The prosecution must be sanctioned by the Attorney General (s. 78F).

Homosexual Intercourse
For most purposes, in 2003 homosexual intercourse was put in the same legal position as heterosexual intercourse. Homosexual intercourse between adults is not illegal in NSW.

For offences involving sexual intercourse with males under 16, see 'Sexual Intercourse with Minors' above.

Production, dissemination, or possession of child abuse material

It is an offence carrying 10 years imprisonment to produce or disseminate child pornography (s. 91H( 2) Crimes Act).

It is an offence carrying 5 years imprisonment to possess child pornography (s. 91H (3) Crimes Act).

'Child' is defined as a person under the age of 16 (s. 91FA)

'Child abuse material' is defined in s. 91FB as material that depicts or describes in a way that a reasonable person would regard as offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or 

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or 

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or 

(d) the private parts of a person who is, appears to be or is implied to be, a child.

'Private parts' of a person are defined to be the genitalia, or anus of a person, or the breasts of a female person (s. 91FB (4). The term 'breasts of a female person' has been held not to include the chest of a pre-pubescent girl: Turner v Regina [2017] NSWCCA 304 esp at para [59].

The matters which are to be taken into account in determining whether or not a rasonable person would regard the material as offensive include (s. 91FB (2)):

(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and 

(b) the literary, artistic or educational merit (if any) of the material, and 

(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and 

(d) the general character of the material (including whether it is of a medical, legal or scientific character).

It has been held that where material was found on an accused's hard drive which had been deleted but could still be retrieved, the Crown could not without more establish that the accused knew that the material was in his possession and the appeal had to be quashed: Clark v Regina (2008) 185 A Crim R 1 .

Offences which straddle a date where the maximum penalty was increased

Where the allegaton is that an offence occurred sometime during a particular period, and during that time the maximum penalty was increased, and the prosecution cannot prove whether the offence occurred before or after the increase in the maximum penalty, the offender is to be sentenced according to the lower maximum penalty: Regina v MAJW (2007) 171 A Crim R 407.

Lack of or Delay in Complaint.

Where it is suggested that the victim delayed complaining or did not complain the judge must tell the jury that a delay in or absence of complaint does not necessarily mean that the allegation is false, and that there may be very good reasons why a victim might so act: s. 294 Criminal Procedure Act. The judge should not identify possible but unexpressed reasons why no complaint had been made: Williams (1999) 104 A Crim R 260.

Section 294 does not mean that judges should not tell juries that they can take into account delay in making a complaint: (Crofts v The Queen (1996) 186 CLR 427, 88 A Crim R 232) and as a general rule such a direction should be given: DJK (1997) 96 A Crim R 443, Harvey (NSW CCA 9/4/98), JTS (1998) 5 Crim LN [913], M (1997) 99 A Crim R 464 (Vic C of A). However this direction only needs to be given if:

(1) the delay is significant, and

(2) the accused has suffered a significant forensic disadvantage caused by the delay, other than the mere passage of time (s. 294 ).

Judges should also tell the jury the delay in complaint makes it difficult for the accused to defend himself, referring to any specific difficulties: Harvey, Johnston (1998) 45 NSWLR 362. The direction should refer to the fact that (1) the delay made it harder for the accused to defend the Crown case, referring to specific difficulties in the case, and (2) as a result there was a need to consider the Crown case with additional care or caution: Johnston. For a detailed summary of the necessary directions on delay in complaint, see Chapter 16 in the Evidence Section.

Victims of Sexual Offences.

There is no longer a rule that the evidence of victims of sexual assault and indecent assault must be corroborated.

If the sole witness corroborating the Crown case is the complainant a traditional direction is that the jury should consider the evidence of the complainant with great care (Murray (1987) 11 NSWLR 12). The Murray direction should still be given after the Evidence Act: Vawdrey (1998) 100 A Crim R 488.

Under s. 294AA of the Criminal Procedure Act a judge is prohibited from warning a jury that complainants as a class are unreliable, and from warning a jury of the danger of convicting on the uncorroborated evidence of a complainant. Although this provision appears to have been intended to do away with the Murray direction, arguably it has not done so.

The Liberato direction in word against word cases

In a case which turns on whether a prosecution witness or the accused is believed, the jury should be told that:

(1) if you believe the accused's evidence (or his account in his record of interview) you must acquit;

(2) if you do not accept that evidence (account) but consider his account might be true, you must acquit;

(3) if you do not believe the accused's evidence (account) you should put that evidence (account) to one side. The question will remain, has the prosecution, on the basis of the evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

(Liberato v The Queen (1985) 159 CLR 507 at 515 per Brennan J, as modified in De Silva v The Queen (2019) 268 CLR 57, [2019] HCA 48 at para [12]. See also Decision Restricted [2021] NSWCCA 227 at para [63] (not currently available on the internet).

This direction should be given where the accused's version is before the jury, either by record of interview or by evidence: De Silva v The Queen (2019) 268 CLR 57, [2019] HCA 48, if the trial judge perceives that there is a real risk that the jury will reason that the accused's answers can only give rise to a reason able doubt if the jury believes them, or a preference for the evidence of the complainant over the accused's account suffices to establish guilt (esp at para [11]).

Victims of Sexual Assault: Delay in Complaint

At common law where there was a lengthy delay in complaint it was necessary to direct the jury that it would be dangerous to convict unless the jury having scrutinised the evidence with great care was satisfied of its truth and accuracy. This direction was called the 'Longman' direction: Longman v The Queen (1989) 168 CLR 179, 43 A Crim R 463 at 471.

However the issues of when the direction is required, and the content of the direction, have been modified by statute. The direction is only to be given if there is sufficient evidence to justify such a warning (s. 165B Evidence Act). If a judge in a sexual assault trial is satisfied that

(a) there is a delay in complaint and

(b) the person on trial has suffered a significant forensic disadvantage because of the delay

the judge may inform the jury (if one of the parties requests) the nature of the disadvantage and the need to take that disadvantage into account in determining whether or not to accept the evidence (s. 165B Evidence Act).

As to what is a 'significant' delay' the cases on the meaning of a long delay will be of assistance. In Longman the delay was 20 years. In Doggett v The Queen (2001) 208 CLR 343 the High Court said that there should have been a Longman direction in a case where there was a delay of 12 years. However in Dyers v The Queen (2002) 210 CLR 285 it seems 3 High Court judges (Kirby at para [58], McHugh at [47] and Callinan at [128] to [131]) did not think that there had to be a Longman direction in a case where there was a delay of 5 years. In WSP [2005] NSWCCA 427 it was suggested it may not be necessary to warn the jury that it may be dangerous to convict on that evidence if the delay is not 20 years but for example is 4 years (at para [179]). At the other end of the spectrum of delay, in a case where there was a delay of complaint of about 6 months, it was held that there was no need to give a Longman direction: MDB [2005] NSWCCA 354.

The direction is only to be given if the judge is satisfied that the accused has suffered a significant forensic disadvantage caused by the delay: s. 165B (2) Evidence Act. The death of or inability to find potential witnesses and evidence are given as examples in a non-exhaustive list (s. 165B (7) ). The mere passage of time is not of itself to be regarded as a forensic disadvantage: s. 165B (6). This overturns the common law position, in which it was presumed that the accused had sufferred a detriment, even though no specific detriment could be identified: BWT (2002) 54 NSWLR 241, 129 A Crim R 153 especially at paras [13] to [14].

The direction should be given even when there is corroboration of the complainant: Doggett v The Queen (2001) 208 CLR 343.

Content of the Longman direction

As discussed immediately above, at common law the 'Longman' direction was that where there was a lengthy delay in complaint it was necessary to direct the jury that it would be dangerous to convict unless the jury having scrutinised the evidence with great care was satisfied of its truth and accuracy: Longman v The Queen (1989) 168 CLR 179, 43 A Crim R 463 at 471.

Section 165B (4) of the Evidence Act prohibits a direction that it would be dangerous or unsafe to convict the accused solely because of delay in complaint or the forensic disadvantages suffered as a result of the delay.

If the judge on application of any party is satisfied that the accused has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury:

• of the nature of the disadvantage and
• the need to take that disadvantage into account in considering the evidence (s. 165B(2) Evidence Act).

It may be that the directions should still include a direction to scrutinise the evidence of the complainant with great care. It was assumed that such a direction should be given in TJ v Regina [2009] NSWCCA 257.

The jury should be told of any difficulties caused by the delay to the defence: Johnston (1998) 45 NSWLR 362, Crampton v The Queen (2000) 206 CLR 161.

If a Longman direction is given, the direction should not refer to difficulties suffered by both the Crown and the accused because of the delay. It should only refer to difficulties suffered by the accused: Folli [2001] NSWCCA 531 esp at para [22], Erohin [2006] NSWCCA 102 at para [86].

Multiple Victims and Multiple Counts
Where there are a number of counts, the jury is usually directed that each count must be considered separately. However where there is no evidence in the Crown case apart from the complainant's evidence, the jury should generally be told that if they find the accused is not guilty on one count, that must be taken into account in assessing the truthfulness of the complainant generally: Regina v Markuleski (2001) 52 NSWLR 82 esp at paras [186] to [191]. There is no universal requirement that the jury be given a 'propensity direction'; that is, a direction that if the jury found the accused guilty of one of the offences charged, it could not use that finding to reason that he was the sort of person likely to commit the another of the offences: KRM v The Queen (2001) 75 ALJR 550.

Where there are multiple complainants each alleging separate assaults, the jury must be directed that the evidence of one complainant could not be used towards proof of an offence against another complainant: Mayberry [2000] NSWCCA 531 especially at paras [259] to [263], KRM v The Queen (2001) 75 ALJR 550 at para 38 (per McHugh J). It should be noted that generally if there are multiple complainants there should be separate trials unless the other charges are admissible as tendency or coincidence fact evidence: De Jesus v The Queen (1986) 68 ALR 1, Sutton v The Queen (1984) 152 CLR 528 (per Brennan J.).

Previous Sexual Experience.
Evidence of the sexual experience or lack of experience of the victim is inadmissible in a prescribed sexual offence (defined in s. 3 Criminal Procedure Act) unless the probative value outweighs the distress etc to the victim and it comes within one of the following fact situations (s. 293 Criminal Procedure Act ) :

• where the evidence is of the complainant's sexual experience/inexperience, or sexual activity/events at about the time of the offence and those events are a connected set of circumstances ( s. 293 (4) (a) )
• where it is evidence of the relationship between the parties (s. 293 (4)(b))
• in a case where the accused does not concede that sexual intercourse took place, and the evidence is relevant to whether where the presence of injury, semen, disease or pregnancy is attributable to the accused (s. s. 293 (4) (c))
• if the evidence is relevant to whether at the time of the alleged sexual intercourse the accused or the complainant had a disease (s. 293 (4) (d))
• if the evidence is relevant to whether the allegation of sexual assault was first made following a realization or discovery of disease or pregnancy of the complainant (s. 293 (4) (e)).
• if the prosecution case has disclosed or implied that the complainant has sexual experience or a lack of sexual experience of a general or specified nature, or had taken part in or not taken part in sexual activity of a general or specified nature (s. s. 293 (6)).

AND the probative value outweighs the complainant's distress etc. See White (1989) 46 A Crim R 251.

Generally evidence of the complainant consenting to sexual activity with a person other than the accused will not be admissible: Regina v Burton [2014] NSWCCA 335 esp at para [70]. However evidence of a 'set of circumstances' ( s. 293 (4) (a)) may include intercourse with another person an hour later: Morgan (1993) 67 A Crim R 526. 'Relationship' in this context (s. 293 (4) (b) ) has been held to mean 'an emotional connection between people sometimes involving sexual relations': White (1989) 18 NSWLR 332. It may include intercourse between the parties a few weeks after the incident: Regina v Warner (NSWCCA unreported 7/5/1997), Taylor v Regina [2009] NSWCCA 180.

The reference in s. 293 (4) (c) to 'injury, disease' is not limited to injury to genitalia, and this provision should be construed broadly- see Dimian (1995) 83 A Crim R 358. If the defence case is that sexual intercourse occured but it was consensual, the exception under s. 294 (4) (c) does not apply: Taleb v Regina [2015] NSWCCA 105 esp at para [102].

The prosecution has not 'disclosed' the complainant's sexual history or lack of sexual history merely by the prosecution serving material on the accused recording that the complainant was a virgin: Spratt v DPP [2010] NSWSC 355.

The applicant should set out in writing the areas he wishes to question on, but not the specific questions: Dimian (1995) 83 A Crim R 358, Taylor v Regina [2009] NSWCCA 180 esp at paras [45] to [48].

If the accused is charged with one prescribed sexual offence and one offence which is not a prescribed sexual offence, s. 293 Criminal Procedure Act still appears to apply: ARS (CCA unreported 25/9/97).

The provision appears to preclude cross-examination about previous false complaints: M (1993) 67 A Crim R 549, Bernthaler (1994) PD [10]. The provision will not justify a stay of proceedings: PJE (CCA u/r 9/10/95). It will not be sufficient to make the verdict unsafe and unsatisfactory: but see HG v The Queen (1999) 197 CLR 414, overruling Morgan 67 A Crim R 526. To the same effect see Allan v Regina [2017] NSWCCA 6 esp at para [107]. The effect of this provision in preventing cross-examination about previous false complaints was desribed as 'an affront to justice' in R v RB, AG of NSW Intervening [2019] NSWDC 368.

However, in Adams v Regina [2018] NSWCCA 303, it was held that previous false complaints of sexual assault may fall under an exception to the general rule under s. 293 (4) (a) Criminal Procedure Act as part of a 'connected set of circumstances' at or about the time of the alleged offence (esp at para [172] per Campbell J, Hoeben CJ at CL at [4], N Adams J contra).

S. 293 Criminal Procedure Act also prohibits evidence of non-consensual sexual activity of the complainant: HG (1999) 197 CLR 414.

The complainant's evidence

A complainant in a prescribed sexual offence is entitled to give evidence by closed circuit television or shielded from the accused and from anyone else in the court room by use of screens: s. 294B Criminal Procedure Act.

Where no verdict is reached in a sexual assault trial (for example, where the jury is discharged before verdict or there is a hung jury), a recording of the complainant's evidence (including cross-examination and re-examination) is admissible in a new trial: s. 306I Criminal Procedure Act. Generally if the complainant's earlier evidence is admitted into evidence, the complainant is not compellable to give evidence in a later trial except in limited circumstances, being the need to clarify matters in the complainant's evidence, the need to canvas evidence not available at trial, or 'in the interests of justice': s. 306J. As to this provision see WX v Regina [2020] NSWCCA 142.

Where there is a new trial as a result of a succesful appeal, the complainant is not compellable to give further evidence at a later retrial (s. 306B Criminal Procedure Act).

Cross-Examination of a Complainant by an Unrepresented Accused
Section 294A Criminal Procedure Act prohibits an unrepresented accused from cross-examining a complainant in a sexual offence. However, in such a court situation, the court must appoint someone to ask the complainant the questions that the unrepresented person requests. A challenge to the constitutional validity of this legislation was rejected in MSK and MAK (2004) 61 NSWLR 204, 148 A Crim R 453.

The representative of the accused should be present for the evidence in chief of the complainant and the proposed questions of the complainant should not have to be submitted to the judge before the evidence in chief of the complainant is given: Clark v Regina [2008] NSWCCA 122.

Medical Evidence that it is probable that the complainant had been sexually assaulted

A doctor's opinion that, in light of the complainant's history and the doctor's examination, it was probable that the complainant had been sexually assaulted, is inadmissible: Davis [2004] NSWCCA 298 esp at paras [37] to [38].

Time on the Indictment

Late amendment of the date on the indictment can be fatal for the Crown case: Westerman (1991) 55 A Crim R 353. The date of the offence is not normally an element of the offence, but is a matter of particulars: VHP (NSW CCA 7/7/97), Kennedy (2000) 118 A Crim R 34. However, in a particular case, the date of the offence can achieve importance by indicating that the offence is not maintainable at law or is bad for duplicity: Greenaway (2001) 118 A Crim R 299.

7/. Drug and People Smuggling Offences

Commonwealth Offences.
Under the Commonwealth Criminal Code it is an offence to

• import or export a border controlled drug or plants (ss. 307.1-4)
• have in possession a bordered controlled drug or plants which was illegally imported (ss. 307.5- 307.7)
• have in possession bordered controlled drug or plants which are reasonably suspected of being illegally imported (ss. 307.8-307.10)

Elements of Importing the Commercial Quantity of a Border Controlled Drug/Plants

For the Crown to establish that an accused is guilty of the offence of importing the commercial quantity of a border controlled drug or plants, the Crown must establish:

Similarly for the offence of import the marketable quantity.

As to the mens rea for these offences, see below.

Meaning of 'import'

The word 'import' has been interpreted as meaning requiring proof that the border controlled goods arrived in Australia from abroad and were delivered to a point which would result in the goods remaining in Australia. It was held to be necessary that the Crown proves that the accused had the relevant mens rea at the time the goods were imported: Campbell v Regina (2008) 73 NSWLR 272, 188 A Crim R 1 .

Subsequently, s. 300 was amended to include dealing 'with the substance in connection with its importation'. It has been held that 'dealing' includes physical acts such as concealing or transporting the goods, as well as legal processes such as sale: El-Haddad v Regina [2015] NSWCCA 10.

Mens Rea of Importation

In a charge of importation there must be proof of intention to import, so there must be knowledge of the existence of the drugs: He Kaw Teh v The Queen (1985) 157 CLR 523. Under the Commonwealth Criminal Code, the fault element for knowledge that the substance imported was a prohibited drug or plant is recklessness. Intention to import narcotics can be inferred from awareness that the thing being imported contains narcotic goods.

It is sufficient if the Crown establishes that the accused was aware that it is likely that the thing being imported was narcotic goods: Kural v The Queen (1987) 162 CLR 502, Tomasevic (1990) 51 A Crim R 72, Chi Thanh Cao v Regina (2006) 65 NSWLR, 172 A Crim R 1 esp at para [63]. The jury should not be directed in terms of wilful blindness: Zakaria (1992) 62 A Crim R 259. It has been held that it is sufficient to establish the mens reas if the prosecution establishes that the accused realised that there was a 'real or significant chance' that the packages he was importing were prohibited drugs: Smith v Regina [2016] NSWCCA 93 esp at paras [79] to [82], and Smith v The Queen; The Queen v Afford [2017] HCA 19 esp at paras [58] to [59].

In Smith v The Queen; The Queen v Afford [2017] HCA 19, the High Court suggested that the following directions be given in an importation case where the fact that prohibited drugs were imported was not in dispute (at para [69]):

(1) The accused is charged with importing a border controlled drug. Importing something into Australia means bringing that thing into Australia.

(2) What is in dispute is whether the accused intended to import the substance and whether he or she knew, or was reckless as to whether, the substance was a border controlled drug.

(3) The accused cannot be convicted of importing a border controlled drug unless it is established beyond reasonable doubt that:

(i) he or she intended to import a substance; and

(ii) he or she knew, or was reckless as to whether, the substance was a border controlled drug.

(4) Each of those mental elements must be considered separately.

(5) The accused cannot be regarded as having intended to do something unless it is established beyond reasonable doubt that he or she meant to do that thing.

(6) To decide whether the accused meant to bring the substance into Australia, it is permissible to draw an inference as to the accused's state of mind at the time of bringing the substance into Australia. 

(7) In order to draw an inference of intent, it is necessary to be satisfied beyond reasonable doubt of the facts and circumstances from which the inference of intent is drawn and that the inference of intent is the only reasonable inference open to be drawn from those facts and circumstances.

(8) Where, as here, the accused brought into Australia a case, object or other thing ("the container") which has a substance in it, and it is open to infer that the accused meant to bring the container into Australia, it is open to infer that the accused meant to bring the substance into Australia if, at the time of bringing the container into Australia: 

(i) the accused knew that the substance was in the container; or 

(ii) the accused knew or believed there was a real or significant chance that the substance was in the container. 

(9) It is not necessary that the accused knew or had a belief as to where, or in what fashion, or in what form, the substance existed or was secreted in the container. It is enough if the accused knew or believed there was a real or significant chance that the substance was somehow, somewhere, in some form within the container.

(10) It must be stressed once again, however, that it is not permissible to draw an inference that the accused meant to bring the substance into Australia unless that is the only inference reasonably open on the established facts and circumstances of the case.

(11) If it is established beyond reasonable doubt that the accused meant to bring the substance into Australia, it will then be necessary to decide whether the accused knew, or was reckless as to whether, the substance was a border controlled drug. 

(12) The accused cannot be taken to have been reckless as to whether the substance was a border controlled drug unless it is established beyond reasonable doubt that:

(i) the accused was aware of a substantial risk that the substance was a border controlled drug; and

(ii) having regard to the circumstances which were known to the accused, it was unjustifiable for him or her to take the risk.

In importation matters, the element that the substance being imported was of the marketable or commercial quantity is a matter of absolute liability. The Crown is not required to prove that the accused knew the amount being imported: Cheng v The Queen (2000) 203 CLR 248, Keung v Regina (2008) 191 A Crim R 317 .

Mens Rea of Importation: Offences before 28 September 2004
It has been held that it is a misdirection to tell a jury that awareness that there was a substantial risk that the contained narcotic goods is sufficient to establish intention: Regina v Saengsai-Or (2004) 61 NSWLR 135, 147 A Crim R 172 at para [75]. However, the judge may direct the jury that the intention to import can be established by an inference that the accused was aware of the likelihood that the container narcotic goods: Saengsai-Or (2004) 61 NSWLR 135 at para [74].

Conspiracy to import

As to the elements of conspiracy to import, see Cranney v Regina [2017] NSWCCA 234 esp at paras [169] to [170].

• where the amount of the drug is the commercial quantity: life imprisonment (s. 307.1)
• where the quantity is the marketable quantity: 25 years imprisonment (s. 307.2)
• for importing less than the marketable quantity of a prohibited drug/plant:10 years
• where the offender proves that he/she did not intend to sell any of the border controlled drug and did not believe that any of it would be sold: 2 years

Schedule of Penalties for Importing Particular Drugs
Under the Criminal Code, there is a table of penalties for offences under varying according to the type of drug. The complete schedule can be found in schedule 3. The relevant quantities for commonly imported drugs are set out in this table:

Knowingly Concerned in Importation.
To be convicted of 'knowingly concerned' it is necessary to establish proof of some act or conduct prior to or during the act of importation, some practical connection, not just mere knowledge or inaction: Tannous (1987) 10 NSWLR 303, Marcell (1993) PD [88]. There must be knowledge of the essential elements of the principal offence: Edwards (1992) 62 A Crim R 100. You can be 'knowingly concerned' by conduct after the importation is complete: Leff (1996) 86 A Crim R 212.

People Smuggling

The Migration Act makes it an offence to organise or facilitate the bringing or coming of a person, or the entry or proposed entry of a person into Australi, where the person is a non-citizen, and the person has no right to come to Australia: s. 233A Migration Act. Aggravated forms of the offence exist where the smuggler exposes the non-citizen to the risk of death or serious harm (s. 233B), or where at least 5 people are being smuggled (s. 233C).

The maximum penalty for an offence under s. 233A is 10 years imprisonment, and the maximum penalty for an offence under s. 233B or s. 233C is 20 years imprisonment. However, where there is an offence under s. 233B there is a mandatory minimum sentence of 8 years with a non-parole period of 5 years, and where there is an offence under s. 233C there is a mandatory minimum sentence of 8 years with a non-parole period of 5 years for a first offence, and a mandatory minimum sentence of 8 years with a non-parole period of 5 years for a subsequent offence: s. 236B.

It is an element of the offence that the accused knew that the island to which the accused was taking the non-citizens was part of Australia: Alomalu v Regina [2012] NSWCCA 225 esp at para [82].


Possession of Minute Amounts.
Possession of minute amounts of a drug does not constitute possession: Williams v The Queen (1978) 140 CLR 591.

The Physical Aspect of Possession.
The physical aspect of possession is exclusive physical control: DPP v Brooks (1974) 2 WLR 899. Holding for a short time for the purposes of concealment is still possession: Todd (1977) 6 A Crim R 105.

The Mens Rea of Possession.
It is necessary for the prosecution to prove knowledge of the existence of the drug: He Kaw Teh v The Queen (1985) 157 CLR 523, 59 ALJR 620. Proof of the belief that the drugs were present will suffice: Kural. If a person forgets that he has the drugs in his possession he can still be convicted: Martindale [1986] Crim LJ 737, Kennedy (1998) 100 A Crim R 377. Possession does not require proof that the defendant knew precisely where the item was or that he knows that it is in his bag at the relevant time: DPP v Fairbanks [2012] NSWSC 150.

The Shared House.
Mere knowledge of the existence of the drugs, their location in the premises, and sanction of them being there does not amount to possession: Hinton (1978) PSR 1749.In a shared house situation the mere finding of the drugs will not amount to possession unless the possibility of sole possession by others is excluded: Fillipetti (1984) 13 A Crim R 335, Burns (19/8/88 CCA), Bazley (23/3/89) and Dib (1991) 52 A Crim R 65.These common law principles now have to be read subject to the specific statutory provisions relating top 'drug premises' (as to which see immediately below).

'Drug Premises'

It is an offence to be found on or entering or leaving 'drug premises'. There is a defence if the accused satisfies the court that he/she had a lawful purpose or lawful excuse. The maximum penalty for the first offence is a fine of $550 and 12 months imprisonment, for subsequent offences the maximum penalty is $5500 and 5 years imprisonment: s. 36X Drug Misuse and Trafficking Act. Similarly it is an offence for an owner or occupier of premises to knowingly allow premises to be used as drug premises, penalty $5500 and 12 months for the first offence, and $55, 000 and 5 years for subsequent offences: s. 36Y DM and T Act. The same penalties apply for organising or conducting, or assisting in organising or conducting, drug premises. This offence includes acting as a look-out, door attendant or guard: s. 36Z DM and T Act.

For all of these offences the prosecution is required to prove beyond reasonable doubt that the premises are 'drug premises': (s. 36W DM and T Act). That requires the court to be satisfied that at the relevant time the premises were being used for the manufacture or supply of a prohibited drug: (s. 36W DM and T Act). It is not necessary for the prosecution to prove that the accused had a prohibited drug in his possession or that there was a prohibited drug in the premises: s. 36V DM and T Act. In order to determine whether the premises are 'drug premises', the court can take into account:

• evidence that a police officer was obstructed from entering the premises
• evidence of security devices to delay police entry
• evidence of look outs
• evidence of the presence of means of supply or manufacture of prohibited drugs such as syringes
• evidence of the presence of firearms or prohibited weapons
• evidence of drug records
• evidence of the presence of drug affected persons

(s. 36W DM and T Act). 'Premises' is defined widely in s. 3 and appears to include motor vehicles.

The Car.
Where drugs are found in a car, a passenger cannot be convicted of possession without further evidence: Harris [1961] Crim LJ 256, Lester & Byast (1955) 39 Cr App R 157. Where the owner of a car has the drugs locked in the boot but he does not have the keys, prima facie he does not have exclusive physical control: Barron v Valdamis [1978] ACLD 374. Mere possession of the keys to a car does not of itself prove knowledge of the contents of the car, especially if others have access to the car: Amanatidis (2001) 125 A Crim R 89. Someone in a car from which drugs are being sold may be charged with being in drug premises as to which see the paragraph immediately above.

Hidden Drugs.
Where a person hides drugs so effectively he can take it into his custody and others are unlikely to find them, they are in his possession: Delon (1992) 29 NSWLR 29.

Possession of an Implement.
It is an offence to have in your possession an implement for the administration of a prohibited drug. There is an exemption for hypodermic syringes: s. 11 Drug Misuse and Trafficking Act. It is necessary to show that the person possessed the utensils for future use: Erickson v Pittard [1976] 2 NSWLR 528.
Penalty: $2200 or 2 years

Administration.
It is an offence to administer drugs to your self or to another person: ss. 12 and 13.
Penalty: $2200 or 2 years

Hearsay Admissions.
The courts can take into account street expressions for drugs such as 'grass' (Ringstaad v Butler [1978] 1 NSWLR 754) but not 'speed' (Woodward v Wallace NSW SC Cantor J 23/4/85). However the admissions only become admissible of what the drugs were if the maker has personal knowledge or expertise: Ringstaad v Butler, Brady [1980] 7 PSR 2199.

Cultivate.
It is an offence to cultivate indian hemp: s. 23. Watering plants with the intention of keeping the plants alive is cultivation: Eager v Smith (1988) 38 A Crim R 272.

Where the accused is charged with cultivating a particular quantity of plants (for example the commercial quantity), the Crown must establish that the crop contained the relevant number of plants, not the number of plants which were tendered: Mouroufas v Regina [2007] NSWCCA 58.

A number of separate sites can be the subject of a single charge of supply the commercial quantity: Regina v Whalen and Willer (2002-3) 56 NSWLR 454.

Actual Supply.
It is an offence to supply or take part in the actual supply of a prohibited drug: s. 25. If the defendant merely asks someone to obtain a drug and supply it to him he has not caused the person to supply: Castle v Olen [1985] 3 NSWLR 26. However it seems this can constitute incitement to supply: Regina v Eade (2002) 131 A Crim R 390.

The relevant intention is an intentional making of an offer with the intention that it would be regarded by the offeree as genuine, so a 'rip-off' may constitute supply: Dendic (1987) 34 A Crim R 40, Addison (1993) 70 A Crim R 213. However this does not mean that the sentencing principles applicable to drug dealers are relevant: Kalpaxis [2001] NSWCCA 119.

Supply includes buying a drug with pooled money and splitting the result: Buckley [1979] Crim LR 665. Supply includes causing a package to be forwarded to another person by a mail delivery system, even if the drugs end up being delivered by undercover police: Pinkstone v The Queen (2004) 219 CLR 444.

Under the extended definition of supply, 'suffering or permitting' a supply is included. This appears to include a failure of a police officer to intervene knowing that a supply is likely to occur: Jasper (2003) 139 A Crim R 329.

Does supply include sharing a joint? The cases go either way: King [1978] Crim LR 228, Moore [1979] Crim LR 789.

A number of supplies can be included in one count: Hamzy (1994) 74 A Crim R 341, F (1996) 90 A Crim R 356, Deng (1996) 91 A Crim R 80, and Jacobs (1997) 94 A Crim R 15, but see Walsh v Tattersall (1996) 188 CLR 77, 88 A Crim R 496.

For offences of supply of the commercial quantity of a drug (not cannabis) committed after 3 February 2003, the 'standard non-parole period' is 10 years. For the large commercial quantity, the 'standard non-parole period' is 15 years.

Holding.
Giving drugs to someone to hold for you is not supplying (Maginnis [1987] 2 WLR 765) nor is the holder giving the drugs back to you: Carey (1990) 50 A Crim R 163, (1991) 55 A Crim R 120, Tuckey (1991) 57 A Crim R 468, Pelham (1995) 82 A Crim R 455. Where the defence is that the defendant is simply holding the drugs for someone else, the jury should be specifically directed that this is a defence at law: Regina v Frazer (2002) 128 A Crim R 89. However holding the goods of the true owner as leverage to get money from him is supply, if the true owner has not given them to you: Regina v Asim (1997) 92 A Crim R 97. Holding drugs for someone else, which you then give to someone else, is supply: Blair (2005) 152 A Crim R 462.

Possession for the Purpose of Supply.
You can't be convicted both of possession and supply in the sense of possession for the purpose of supply: Dodd and Dodd (1991) 56 A Crim R 451.

Deemed Supply.
A person who has in his possession the trafficable quantity of a drug is deemed to have it in possession for the purpose of supply unless he proves the contrary: s. 29. The burden of proof is on the balance of probabilities: R v R (no. 2) (1990) 19 NSWLR 573. Possession for the purpose of disposing of the substance is not possession for the purpose of supply: Orban (CCA 5/7/84 ). The provision only applies to someone actually in possession of the drug, not to someone attempting to or conspiring to possess: Krakouer v The Queen (1998) 194 CLR 202.

Evidence of possession of money is relevant and generally admissible: The Queen v Falzon [2018] HCA 29 esp at para [40], Popa (1991) 53 A Crim R 102, McGhee (1993) 68 A Crim R 220, Sultana (1994) 74 A Crim R 27 but see Lewis (1989) 46 A Crim R 365. Evidence of customers ringing may be inadmissible: Kearby (House of Lords 66 ALJ 468), Omar (1992) 58 A Crim R 139, but see Firman (1989) 46 A Crim R 150, Al Khair (1994) PD [254], Sokvari (1995) PD [383]. Possession of plastic bags, pistols and scales is admissible: Edwards (1993) 67 A Crim R 539, Sultana. It has been held that possession of bullets, even without guns, is admissible: Radi v Regina [2010] NSWCCA 265.

Police can give evidence that conversations could be referring to drugs, but not that they do so refer: David (1995) [PD] 351.

Aid and Abet Supply.
The deeming provision does not apply to aid and abet supply. There must be proof of actual knowledge: Davis v The Queen (1991) 66 ALJR 22.

Supply on An Ongoing Basis

A person who supplies on 3 or more occasions within 30 days a prohibited drug (other than cannabis) for financial or material reward is guilty of supplying drugs on an ongoing basis and faces a penalty of 20 years: s. 25A Drug Misuse and Trafficking Act. It is necessary for the prosecution to establish that the accused himself receives the financial or material reward, not simply financial or material reward to another person: Jackson [2004] NSWCCA 110, White v Regina [2014] NSWCCA 329.

Deemed Drugs.
When a substance is represented as being as drug for the purpose of supply it will be deemed to be a drug: s. 40. There must be an actual substance represented as the drug for the section to operate: Miller v Page 6 PSR 2854.

Quantity of Drugs.
Where the accused is charged with eg cultivating or supplying more than a specified quantity of the drug (eg the commercial quantity), the Crown must prove that the accused knew that the relevant amount of drugs was involved: CWW (1993) 70 A Crim R 517. It appears that it is sufficient if the jury is aware that the accused believed that there was a significant or real chance that the drugs contained the commercial quantity: Lau (1998) 105 A Crim R 167. Where the plea is on the basis that the basis that the offender believed that the drug involved was another type of drug other than that which based the charge, the relevant amounts for commercial, large commercial, etc, are those for the drug which the offender believed was being supplied: Regina v Busby [2018] NSWCCA 136 esp at para [61].

Under state legislation a reference to a drug is deemed to include an 'admixture', so the impure quantity is what is relevant to the quantity of the drugs: s. 4 DMT Act. This does not apply if say the heroin is not mixed in with other white powder (Regina v Asim (1997) 92 A Crim R 97 at 100). It does apply to cardboard impregnated with LSD: Finch v Regina [2016] NSWCCA 133 esp at para [134].

Analysts Certificate.
An analysts certificate is prima facie evidence of the quantity of the drug: s.43. The drug must be traced from hand to hand from the police who seize the drug to the analyst for the certificate to be admissible: Young v Commissioner of Railways [1962] SR NSW 647, Barron v Valdamis [1978] ACLD 374. It may be a matter of fact for the jury: Reynolds (1992) PD [292]. The onus of proving that the resin has been extracted is on the defence: s. 40A.

Conspiracy to Supply.
It is actual supply rather than conspiracy to supply for A and B to agree for A to supply B (Chow 1987 11 NSWLR 561), or A and B to supply C (Trudgeon (1988) 39 A Crim R 252).

Manufacture Drugs

It is an offence to take part in the manufacture or production of a prohibited drug: s. 24. This is defined as taking part in or participating in any step in the manufacture of a prohibited drug, or providing finance or premises for such a step: s.6. It appears not to include transporting and acquiring chemicals or equipment: Regina v BD [2001] NSWCCA 184, Regina v Spicer (2003) 139 A Crim R 206. It appears not to include a situation where the accused intends to take a step in the manufacture of chemicals but in fact the chemicals he has are incapable of making a drug: Regina v McCoy (2001) 51 NSWLR 702, 123 A Crim R 81, but see Regina v El Azzi (2001) 125 A Crim R 113. Extracting cocaine from paper comes within the definition of manufacture because the statutory definition includes 'extracting or refining the prohibited drug': Bucic [2016] NSWCCA 297 esp at para para [26].

Where the prohibited drug is notactually produced, the accused can be convicted of knowingly take part in the manufactureof a prohibited drug, but not manufacture of the drug: Cashel v Regina [2018] NSWCCA 292 esp paras [72], [99], and [100].

Where the drug produced is not cannabis, the amount is the commercial quantity, and the offender is arrested after 3 February 2003, the 'standard non-parole period' is 10 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act.

It has been held that it is necessary for the Crown to prove that the accused knew that what was being produced was a prohibited drug, not merely a precursor: Siafakis v Regina [2016] NSWCCA 100 esp at para [38].

Where the drug produced, cultivated or supplied is cannabis, there is a standard non-parole period of 10 years: Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act.

Penalties

See Schedule 1 to Drug Misuse and Trafficking Act.

Small Quantity:

If under this amount, can be dealt with summarily without consent of accused.
Maximum penalty: 2 years, $5500.

If the person being supplied to is under 16 the penalty is increased to 2 years 6 months.

Traffickable Quantity.

If there is any more than the traffickable quantity, the deemed supply provisions apply (s. 29). The maximum penalty in the Local Court is $11,000 and 2 years.

Indictable Quantity, under Commercial Quantity:

If under this amount, can be dealt with in the Local Court unless the prosecution or defence elects otherwise.
Maximum penalty summarily: 2 years, $11 000. If the person being supplied to is under 16 the penalty is increased to 2 years 6 months.

If dealt with indictably:

Cannabis Plant or Leaf: $220 000, 10 years
Otherwise: $220 000, 15 years

If the person being supplied to is under 16 the penalty is increased to 25 years. If there are 3 supplies of any drug other than cannabis in a period of less than 30 days, s. 25A applies, and the maximum penalty becomes 20 years.

More Than Commercial Quantity
Cannabis Plant or Leaf: $385 000, 15 years
Otherwise: $385 000, 20 years.
If the person being supplied to is under 16 the penalty is increased by a fifth.

Over Large Commercial Quantity
Cannabis Plant or Leaf: $550 000, 20 years
Otherwise: $550 000, life.
If the person being supplied to is under 16 the penalty is increased by a fifth.

8/. Public Order Offences.

(a) general

Public Place.
Public place is defined in the Summary Offences Act as any place or part of premises open to the public or used by the public whether or not it is normally so used, whether or not it is open only to a limited class of persons. It does not include a school: s. 3. It does not exclude private property or property where the defendant has no right to go: Camp [1975] 1 NSWLR 452.

Drunkenness.
Drunkenness is no longer a crime. Under s. 206 Law Enforcement (Powers and Responsibilities) Act a person who is found intoxicated in a public place and either behaving in a disorderly manner or in a way likely to cause injury to person or property can be detained until he sobers up.

Consorting.
It is still an offence to habitually consort with people convicted of indictable offences after being given an official warning : s. 93X Crimes Act. 'Consorting' involves more than a casual meeting or conversation, but anintentional seeking out of something in the nature of companionship: Forster v DPP [2017] NSWSC 458.

Loitering with Intent.
It is an offence to be found near any premises or in a public place with intent to commit an indictable offence: s. 546B. It is not necessary to prove an intention to commit any particular felony: Harrison v Hegarty [1975] VR 362.

Police Powers to Move People on
If a police officer believes on reasonable grounds that a person's behaviour

• is obstructing people or traffic
• constitutes harassment or intimidation
• is likely to causing or likely to cause fear to other people, so long as the conduct would be such as to cause fear to a person of reasonable firmness
• is for the purpose of drug supply or purchase

the officer can give the person a direction (typically, to move on): s. 197 Law Enforcement (Powers and Responsibilities) Act. It is an offence to fail to comply (maximum penalty, 2 penalty units or $220). See s. 199 LE (PAR) Act.

Possession of Knives

It is an offence to have in your custody a knife in a public place or school without reasonable excuse, proof of which is on the defendant. The penalty is 5 penalty units for a first offence, and for subsequent offences 20 penalty units and/or 2 years imprisonment (s. 11C Summary Offences Act). Self defence is specifically defined not to be a reasonable excuse.

(b) offensive conduct

Offensive Language or Conduct.
It is an offence to engage in offensive conduct in, near or within view of a public place or school, penalty $600 or 3 months gaol: s. 4 . Offensive language now carries a maximum penalty of 6 penalty units: 4A Summary Offences Act. The word 'fuck' is not of itself necessarily offensive: Hortin v Rowbottom (1993) 68 A Crim R 381. Urinating in the street can constitute offensive conduct: State of NSW v Beck [2013] NSWCA 437 at para [170].

Intention.
Offensive conduct must involve an intention to an offend, which seems to mean doing an act with knowledge that the activity could at least offend: Pregelj and Wurramurra v Manison (1988) 31 A Crim R 383, Stone v Ford (1992) 65 A Crim R 459. Thus intoxication is a defence to offensive conduct: Jeffs v Graham (1987) 8 NSWLR 292.

Offensive.
Offensive seems to mean something that would wound the feelings or arouse disgust or outrage in a reasonable man: Ball v McIntyre (1966) 9 FLR 237, Smith [1974] 2 NSWLR 586. The reasonable man is reasonably tolerant and contemporaneous: Spence v Loguch (CN [103]).

Evidence of By-Stander Police Officers.
The evidence of bystanders that they were offended is relevant but not necessary, although it getting a conviction without it may be difficult. The fact that the bystanders were police officers only goes to weight: Connolly v Willis [1984] 1 NSWLR 378. There is no need to prove any person actually heard it: Stutsel v Reid (1991) 20 NSWLR 661.

Reasonable Excuse.
There is a statutory defence of having a reasonable excuse. Examples may be a belief that a beach is in fact a nude beach ( Featherstone v Fraser (1983) PSR 2962) or a cry after a heavy implement has fallen on your foot: Karpik v Zisis (1979) 5 PSR 2055.

(c) wilful and obscene exposure

Wilful and Obscene Exposure.
Under s. 5 of the Summary Offences Act wilful and obscene exposure of your person in or within view of a public place or school is an offence punishable by $1000 fine or six months gaol. Person seems to mean genitals: Evans v Ewels [1972] 2 All ER 22, Eyles (NSW CCA 1/10/97). There may be a defence of honest and reasonable mistake: Willy Wampfler (1987) 11 NSWLR 541.

Obscene.
Obscene has a narrower definition than indecent although they are related. The circumstances are relevant as is the reaction of the average man: Moloney v Mercer [1971] 2 NSWLR 208.

(d) public assemblies

Riot.
It is an offence under s. 93B Crimes Act if

• 12 or more persons present together, whether or not at the same time
• use or threaten to use of unlawful violence, whether to persons or property, including any violent conduct such as throwing missiles that fall short (for a common purpose- can be inferred from conduct)
• such that would cause a reasonable person to fear for his personal safety (no such person need actually be present)
• the accused used unlawful violence
• need not be in public

Maximum penalty: 15 years

It appears that the prosecution must prove that each accused used unlawful violence, and that the threat of violence is insufficient: Regina v Tyler (1993) 96 Cr App R 332, and Regina v Jefferson [1994] 1 All ER 270.

It is not necessary for the jury to be satisfied that the 12 or more persons were in close proximity, close enough so that they could assist each other by force if necessary: Parhizkar v Regina [2014] NSWCCA 240 esp at para [87].

Affray.
It is an offence under s. 93C Crimes Act if

• a person uses or threatens unlawful violence, whether to persons or property, (including any violent conduct such as throwing missiles that fall short) not including a threat by words alone
• and the conduct is such that it would cause a person of reasonable firmness to fear for his personal safety- no such reasonable person need be present
  need not be in public

Maximum penalty: 10 years

When an offender is sentenced for affray conduct of others aggravating the affray should not be taken into account: Fajka [2004] NSWCCA 166.

Violent Disorder.
Violent disorder:

• 3 or more persons present together
• use or threaten unlawful violence
• such as would cause a person of reasonable firmness to fear for his/her safety

Maximum penalty: 6 months (s. 11A Summary Offences Act)

Public Assemblies.
Where an application is made to the Commissioner of Police 7 days before a planned public assembly, the Commissioner must apply to the courts to stop the demonstration. If less than 7 days notice is given the organizers can approach the court for approval. The benefit of being in an authorised public assembly is that you cannot be convicted of being in a public assembly assembly or obstruction on that basis alone. It is not necessary for the police to prove that there is likely to be a breach of the peace. Reasons such as competing public interests (eg. Christmas day, Anzac marches) will suffice: Commissioner of Police v Allen (1984) 14 A Crim R 244.

(e) trespass

Trespass.
Under s. 4 of the Inclosed Lands Protection Act a person who enters inclosed lands without the consent of the owner or who remains on inclosed lands after being requested to leave by the owner or occupier or a person apparently in charge is liable to a fine of $500. If the inclosed lands are a school, child care service, hospital or nursing home the maximum penalty is doubled. Once you have permission to enter an enclosure you do not need separate permission to enter each enclosure inside: Press v Tuckwell (1968) 69 SR (NSW) 17. 'Inclosed lands' can include premises open to the piblic such as a shop: DPP v Strang [2011] NSWSC 259.

Defences to Trespass.
Lawful excuse is a defence. An honest belief which is wrong at law does not appear to be a defence: Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497. Protesting is not a lawful excuse: O'Donohue v Wille [1998] NSWSC 661.

(f) intentional or reckless damage to property

Intentional or reckless damage to property

Intentional or reckless damage to property is an offence punishable by 5 years, but if done by fire or explosives, 10 years: s. 195 Crimes Act. The offence is Table 1 but if the damage is over $5,000 it is Table 2. If the offence is committed in company, the maximum penalties are 6 years and 11 years respectively.

'Damage' means physical harm, and it need not be permanant or irreparable: DPP v Fraser and O'Donnell [2008] NSWSC 244. Spitting on a stainless steel seat in a police dock does not constitute malicious damage because it does not constitute either physical harm to or functional interference with property so as to render it imperfect or inoperative: Hammond v Regina [2013] NSWCCA 93 esp at para [77].

It has been held that where a defendant chains himself to a machine to render it inoperable, the offence is made out: Grajewski v DPP [2017] NSWCCA 251. Fortunately this decision has been overturned by the High Court in Grajewski v DPP (2019) HCA 8. By majority, the High Court held that 'damage to property' meant injuring or harming the thing which in some way that commonly lessens its value. It is not enough that the machine is rendered inoperable: see esp para [49].

There must be proof of intention or recklessness involving foresight: Kippist v Parnell (1988) 36 A Crim R 18, Kelly v Hillyer (Cantor J 12/3/84), Tzarrangos v Hayes (1991) 53 A Crim R 220. It is not an offence to damage property you solely own, but it seems it is an offence to burn down a house with a mortgage to a bank: Holden (1998) 103 A Crim R 70. If the defendant intended or was reckless to any damage to property, he will also be responsible for any damage to property which results, such as lighting a fire on a cushion which burns down a house: CB v DPP [2014] NSWCA 134.

(g) prostitution

Soliciting.
Soliciting near or within view of a dwelling, school, church or hospital is punishable by $600 or three months: s. 19(1) Summary Offences Act. The prosecution does not have to prove pestering by the defendant: Jitjardn v Thompson (1995) 85 A Crim R 24. Soliciting in those areas in a manner that harasses or distresses others is punishable by $800 or three months.

Public Acts of Prostitution.
Where there is a public act of prostitution (sexual activity for payment whether of the same or different sexes in a car or in view of the public or a dwelling etc) the crime is punishable by $1000 or 6 months: s. 20 Summary Offences Act.

Sex of Defendant.
The sex of the defendant is determined by the external sexual characteristics: Harris and McGuiness (1988) 35 A Crim R 146.

Living from the Earnings of a Prostitute.
It is an offence to live wholly or partly from the earnings of a prostitute punishable by $1000 or 12 months: s. 15. A person is deemed to live wholly or partly from the earnings of a prostitute if he lives with or is habitually in the company of a reputed prostitute and has no visible means of support unless he satisfies the court he has sufficient lawful means of support. A person who lives with a prostitute but has other means of support may not be convicted even if he benefits: Shalunga (1958) 75 WN (NSW) 120. Letting a room to a prostitute at grossly inflated rents may justify a conviction: Thomas [1957] 2 All ER 181.

Keeping Premises for the Purpose of Prostitution.
There is still a common law offence of keeping a brothel: Rahme (1993) 70 A Crim R 357. A prostitute who is the sole occupier of a house is not guilty of this offence: Bell v Stewart (1989) 43 A Crim R 400.

9/. Traffic Offences

Public Street.
A public street is defined as any street, road lane or thoroughfare or place open to or used by the public, including any place open to or used by the public on payment of a fare or otherwise. A public street appears to include any car park open to the public without discrimination such as a hotel car park (Abrahams [1984] 1 NSWLR 491) or service station: Doherty v Barbaric (1982) 7 PSR 2465.

Drives.
The test for driving seems to be using controls for directing the direction of the vehicle: Mercorella v Page (1975) 12 SASR 431. It does not appear to include a vehicle under tow: Hampson v Marin [1981] 2 NSWLR 782. The crucial matter may be control over the propulsion: Affleck (1992) 65 A Crim R 96. Even if a passenger has grabbed hold of the steering wheel, if the person in the driver's seat has control over the accelerator and the brake, he or she is the driver: Williams [2012] NSWCCA 286.

Dangerous Driving.

This offence is created by s. 52A of the Crimes Act. It has been held that that the elements of the offence are that:

• the accused drove a vehicle
• the vehicle was involved in an impact
• the impact occasioned the death or grievous bodly harm of another person
• the driver was, at the time of the impact, driving the vehicle under the influence of an intoxicating liquor or a drug, or at a speed dangerous to another person or persons, or in a manner dangerous to another person or persons

Where the alleged victim is an unborn child who is alleged to have died as a result of the accident, the prosecution must prove that:

• firstly, that the child was in utero at the time of the impact;
• secondly, that as the result of the impact it was born alive; and
• thirdly, that its later death was the result of that impact. That is, that the impact was a substantial or significant cause of its death.

(see Whelan v Regina [2012] NSWCCA 147 at para [81]).

It is not necessary for the Crown to establish that the defendant was negligent, as dangerous driving can be constituted by momentary inattention: see King v The Queen [2012] HCA 24. The trial judge should not direct the jury that it is not necessary to be satisfied that the driving was deserving of criminal punishment: King v The Queen [2012] HCA 24.

S. 52A is not restricted to public highways. Passengers will be treated as members of the public unless possibly on a joint escapade: S (1991) 53 A Crim R 263.

Penalty: 10 years for death and 7 years for gbh for dangerous driving, except for aggravated dangerous driving- see below.

Aggravated Dangerous Driving
To be convicted of aggravated dangerous driving, in addition the Crown must prove that at the time of the impact:

• the accused had the pca in his blood, or
• the accused was driving 45 kph more than the speed limit, or
• the accused was driving to escape a police pursuit.

The penalties for aggravated dangerous driving are 14 years for death and 11 years for gbh.

Driving in a speed or manner dangerous to the public.

Driving at a speed dangerous to the public can be constituted solely by speed: De Keyzer (1987) 9 NSWLR 709. Danger to the public is an objective standard, and does not depend on realization of the risk to the public. It refers to potential danger not merely actual danger: Hain (1966) 85 WN (NSW) (pt 1) 7.

The jury should be instructed that negligence, driving in a manner dangerous to the public and culpable driving are all divergences from the standard of driving of the ordinary prudent driver: Buttsworth [1983] 1 NSWLR 658. However to find the accused guilty of this offence, the jury would have to be satisfied that there was a serious breach of what the jury considered to be the proper management and control of a vehicle on a public road, so serious as to be in reality a potential danger to other persons on or in the vicinity of that road: Goodman (NSWCCA 10/12/91, cited in Saunders (2002) 133 A Crim R 104. The jury should usually be directed that mere negligence is not enough: Regina v Hopton (NSW CCA 8/10/98), Saunders (2002) 133 A Crim R 104.

Drive Under the Influence.
If a person drives or occupies the drivers seat of a motor vehicle and is under the influence of a drug or alcohol that person is guilty of an offence: s. 112 Road Transport Act. The evidence of a police officer that a person's breath smells of liquor, is unsteady on their feet, has bleary eyes etc is admissible and the police officer can give expert evidence that the person is drunk: Whitby (1957) 74 WN (NSW) 441.

It is not necessary to prove that the person is incapable of properly controlling a motor vehicle: Molloy v McDonald (1939) 56 WN (NSW) 159

Breath Testing.
The procedure for breath testing is as follows:

• a police officer can require any person driving or occupying the driving seat of a motor vehicle and attempting to put the motor vehicle in motion to submit to a breath test: clause 3 Schedule 3 Road Transport Act.
• if in consequence of a breath test the police officer is of the opinion that the person has in their blood the prescribed concentration of alcohol or refuses a breath test the police officer may arrest the person and require the person to undergo a breath analysis: clause 4 Schedule 3 Road Transport Act.
• if the person refuses or declines to undergo a breath test the police officer may arrest the person: clause 4 Schedule 3 Road Transport Act
• if a person is admitted into hospital in consequence of a motor vehicle accident it is the duty of the medical practitioner treating him to take a sample of blood: clause 11 Schedule 3 Road Transport Act. It is an offence for the driver to refuse to comply. The offence is an offence of strict liability: Brown v Bergan (1991) 53 A Crim R 417.

If this procedure is not carried out the certificate may still be admissible. Under Bunning v Cross (1978) 141 CLR 54, 52 ALJR the following factors need to be considered when for example the breath test is administered:

• the police were not aware of the unlawfulness of their action
• the illegally of the action did not affect the cogency of the evidence
• the ease of compliance: here equivocal
• drink driving endangers innocent people
• intention of the legislation (see also s. 138 Evidence Act).

Exemptions.
As a result of clause 2 Schedule 3 Road Transport Act a person cannot be required to undergo a breath analysis:

• if they have been admitted to hospital and the treating doctor objects
• if the sample taker objects on the grounds that it would be dangerous to the person's health
• 2 hours after the event entitling the breath test (applies to the analysis, but not the breath test: Wilson (1990) 47 A Crim R 391)
• at the person's home (not the front fence (Hall v Coughlan (1970) 91 WN (NSW) 886), but may include car park of a building (Clampett (1984) 11 A Crim R 103) or the driveway (DPP v Skewes [2002] NSWSC 1008). The onus is on the Crown to disprove this exemption beyond reasonable doubt: Vatner (1992) 29 NSWLR 311.

Certificates.
A certificate purporting to be signed by an authorised officer as to a person's alcohol reading is prima facie evidence of the things in the certificate: clause 35 Schedule 3 Road Transport Act. A certificate outside the 2 hour limit is inadmissible unless there is expert evidence about continuance: Olejarnik (1994) 72 A Crim R 542.

A certificate as to blood analysis is evidence of the things stated in the certificate if the certificate states that:

• the operating officer is authorised by the Commissioner to so do-the person named in the certificate submitted to a breath analysis
• the apparatus used by the officer was a breath analysing instrument
• the analysis was done at the date and time stated on the certificate
• a concentration of alcohol was found in the blood at the date and time stated in the certificate
• a certificate stating the above was delivered to the defendant as soon as practicable: clause 35 Schedule 3 Road Transport Act (2013).

Wilfully Alter Concentration.
It is an offence to wilfully alter the concentration of alcohol in the blood after having been required to undergo a breath test: clause 16 Schedule 3 Road Transport Act. The penalties are the same as for high range pca. The act of the driver must be done with the object of distorting a blood test: McRae v Bower (Yeldham J 26/6/86 ).

Refuse Breath Test

It is an offence to refuse a breath test and the penalty is a $1100 fine: clause 13(1), Schedule 3, Road Transport Act.

Refuse Breath Analysis.
It is an offence to refuse a breath analysis and the penalty is exactly the same as for high range pca: clause 13(1), Schedule 3, Road Transport Act.
Refusing a breath analysis is an offence of absolute liability: Walker (1994) 77 A Crim R 236.

Aid and abet PCA.
It is necessary to prove that the aider and abettor knew that the driver had drunk excessive alcohol: Bruce v Williams (1989) 46 A Crim R 122. Recklessness does not suffice.

Drive While Disqualified.
It is an offence to drive whilst disqualified or cancelled: s. 54 Road Transport Act. It appears that the defence of honest and reasonable mistake is a defence to drive whilst disqualified, but there must be some evidence of the mistake from the defendant: El Hassan v DPP [2000] NSWCA 330, but see Vlahos [1975] 2 NSWLR 580. It is not necessary to prove that the notice was served. Once honest and reasonable mistake has been raised, it is up to the Crown to disprove honest and reasonable mistake beyond reasonable doubt: Valentine v Eid [CN 119]. The mistake of fact must be such that if the mistaken belief was true, no offence would have been committed: DPP v Kailahi (2008) 191 A Crim R 145 .

If the disqualification is quashed on appeal, the disqualification periodremains on foot until the time of the appeal and there can still be a drive while disqualified charge during this period: RMS v Porret [2014] NSWCA 30.

Use Motor Vehicle.
The offence of use motor vehicle applies only to converting a vehicle to your own use (eg by driving it): Willis v Sugden [CN 114].

Particulars.
There is an obligation to stop and give particulars after an accident which is not limited to the scene of the accident: Solman v Libdy [CN 127].

Major Traffic Offences

For the purposes of disqualification periods, 'major traffic offence' is defined in s. 4 Road Transport Act as:

• murder or manslaughter arising from use of a motor vehicle
• malicious wounding or inflicting gbh under the Crimes Act arising from use of a motor vehicle
• predatory driving (s. 51 A Crimes Act), or driving recklessly or in a speed dangerous to the public in a police pursuit (s. 51 B Crimes Act)
• driving at a speed or manner dangerous to the public occasioning death or grievous bodily harm (s. 52A Crimes Act)
• drive manner or speed dangerous to the public (s. 117 Road Traffic Act)
• negligent driving occasioning death or grievous bodily harm (s. 117 Road Traffic Act)
• pca or refuse breath analysis (s. 110 Road Transport Act, clause 16, Schedule 3, Road Transport Act)
• wilfully alter concentration of alcohol (clause 18, Schedule 3, Road Transport Act)
• drive under the influence of drugs or alcohol (s. 112 Road Transport Act)
• fail to stop and give assistance when a person is killed or injured in a motor vehicle accident (s. 146 Road Transport Act).

Penalties.
The penalties for major traffic offences are set out below. There is a higher penalty for a second major offence within 5 years.

The disqualification periods are found in s. 188 Road Transport (General) Act. In working out the fines, it is important to bear in mind that the term 'penalty unit' is currently defined as being $110: s. 17 Crimes (Sentencing Procedure) Act.

The penalties are set out in the table below. In this table 'RTA' is an abbreviation for Road Transport Act.

'PCA' of course refers to the 'prescribed concentration of alcohol.' Novice range pca' applies only to drivers who hold a learner's licence or a provisional licence. The range is less than .02 but more than zero (s. 108 Road Transport Act).

'Special category PCA' is pca for special categories of driver, who include learners, provisional drivers, disqualified or cancelled drivers, and drivers who have not held a licence for more than 6 months (s. 107 (2) Road Transport Act). The range is .02 or more but less than .05 (s. 108 Road Transport Act).

LPCA is 'low range pca' and is .05 or more but less than .08 (s. 108 Road Transport Act)

MPCA is 'mid range pca' and is .08 or more but less than .15 (s. 108 Road Transport Act)

HPCA is 'high range pca' and is .15 or higher (s. 108 Road Transport Act).

DUI is 'drive under the influence'.

'DWC' is the offence of 'drive while cancelled', 'DWS' is drive while suspended, and 'DWD' is the offence of 'drive while disqualified' under: s. 54 Road Transport Act.

'Fail to stop' (s. 146 Road Transport Act) is the offence of failing to stop and render assistance after an accident in which a person is killed or injured.

Penalties for drive manner dangerous, refuse analysis, and alter concentration are the same as hpca.

It has been held that where a person is charged with drive whilst disqualified, the only offences relevant to determine whether the offence is a second or subsequent offence is the offence of drive whilst disqualified: DPP v Partridge (2009) 74 NSWLR 62 .

There is a guideline judgment on pca offences, Application by the Attorney General... (2004) 61 NSWLR 305, 147 A Crim R 546, which is dealt with in more detail in the chapter on sentencing.

Commencement of Disqualification Periods

Where an offender receives a prison sentence, it is doubtful if the sentencing judge can commence the disqualification period at a later date (such as the date the non-parole period expires): Hei Hei v Regina [2009] NSWCCA 87 esp at para [46].

10/. Offences of Dishonesty

(a) larceny

Elements of Larceny.
Larceny has the following elements:

Illich v The Queen (1987) 162 CLR 110 per Wilson and Dawson JJ. at para [10].

Owner.
The prosecution can charge a person with stealing property, the owner of which is unknown, but there must be proof that the goods are actually stolen and the prosecution must adduce evidence that the owner cannot be ascertained: Ellis v Lawson (1987) 33 A Crim R 69.

Property.
The property must be a specific moveable item and must have some value, no matter how slight: Daley (1879) 12 SCR (NSW) 151.This includes illegal drugs: Anic (1993) 68 A Crim R 313. It appears not to include confidential information: (Stewart (1988) 41 CCC (3d) 481) or withdrawals from a bank account: Croton v The Queen (1967) 117 CLR 326.

Intention to Permanently Deprive.
There must be proof of an intention to permanently deprive the owner of the property, despite the existence of s. 118 Crimes Act: Foster v The Queen (1967) 118 CLR 117.

Dishonestly.
A stealing must be 'dishonest,' and in deciding whether or not it is dishonest the jury should apply the current standards of ordinary people, and then determine whether or not the defendant must have realised that what he was doing was dishonest: Feely [1973] 1 QB 530 and Ghosh [1982] 1 QB 1053, adopted for larceny in Weatherstone (1987) 8 PSR 3729. See also Macleod v The Queen (2003) 214 CLR 230.

Intention and Taking.
The taking of the property must take place at the same time as the intention to steal. Therefore if the initial taking is innocent, a later intention to steal will not suffice: Matthews (1950) 34 Cr App R 55.

However if the initial taking is trespassory, a later dishonest intention will suffice: Riley (1853) 169 ER 674.

Larceny by Finding.
Where the Crown alleges stealing by finding, the Crown must negative the possibility that the goods have been abandoned and that the accused did not believe that the owner could be found. What the accused does to attempt to locate the owner is relevant: MacDonald [1983] 1 NSWLR 729. A later discovery of the owner and intention to keep the goods will not suffice: Thurborn (1848) 169 ER 293. Occupiers of land have possession of lost things on it: Hibbert v McKiernan [1948] 2 KB 142.

Claim of Right.
If the accused honestly even if unreasonably believed that he was asserting a lawful claim of right there is no larceny: Bernhard [1938] 1 KB 264. It is sufficient if the defendant honestly believed that he was legally entitled to the property, even if he did not believe that he had a right to claim it the way that he did: Love (1989) 44 A Crim R 416, Fuge (2001) 123 A Crim R 310. You can make a claim of right on behalf of someone else: Saunders (1991) 57 SASR 102. The defence only applies if you can only take what you believe you are owed: Sneddon (1994) PD [75], Fuge (2001) 123 A Crim R 310.

The defence applies not only to stealing but crimes which have larceny as an element of the offence, such as robbery: Fuge (2001) 123 A Crim R 310 (but note that claim of right will not provide a defence to an assault which is part of the offence).

Once the defence is raised, the onus is on the Crown to exclude it: Regina v Love (1989) 17 NSWLR 608 at 616, Fuge (2001) 123 A Crim R 310 at para [24].

For Commonwealth offences see Commonwealth Criminal Code section 9.5.

Mistake.
If a person hands another property under a mistake, it appears that there can be no larceny unless the mistake is a fundamental one as to the identity of the accused or the item handed over, but not for example as to the amount of money handed over: Illich v The Queen (1987)162 CLR 110 interpreting Ashwell (1885) 16 QBD 190 and Middleton (1873) LR 2 CCR 38. It may be that these cases should not be followed at all and property handed over as a result of a mistake cannot found a conviction for larceny: Illich, Potisk (1973) 6 SASR 389, Marshall v Szommer (1989) 44 A Crim R 198.

Stealing from Machines.
Making a withdrawal from an automatic teller when you have closed your account is stealing, even though the machine arguably 'consented': Kennison v Daire (1986) 160 CLR 129, 60 ALJR 249. It even appears to be stealing if the withdrawal is for more than the balance of the account: Evenett (1987) 24 A Crim R 330.

Larceny by a Trick.
If the accused obtains possession from the victim by reason of a trick, then larceny has been committed although the owner voluntarily handed over possession. However if the owner intends to hand over ownership to the accused, then larceny is not available but false pretences may be: Ward (1938) 38 SR (NSW) 308, Justelius [1973] 1 NSWLR 471.

Larceny by a Bailee.
Where money is alleged to have been stolen by a bailee, there cannot be a conviction of larceny as a bailee unless the bailment is in relation to the actual notes and coins: Ward.

Car Stealing

Where a car an offender 'takes and drives' a car, without necessarily intending to permanently deprive the owner of the car permanently, the offender can still be guilty of 'deemed' larceny by way of s. 154A Crimes Act. Importantly this includes being someone who knows the car is stolen agreeing to be a passenger in the car. As a result 'taking and driving' a car is deemed to be larceny, the maximum penalty for which 5 years imprisonment (see s. 117 Crimes Act). A conviction under s. 154AA involves a finding that the offender intended to permanently deprive the owner of the car. The maximum penalty in these circumstances is 10 years imprisonment.

(b) fraud and deception

Fraudulent Misappropriation.
This offence only applies if the money is entrusted to the accused not to use as he thinks fit but to apply it in a particular way or to retain an equivalent sum: Stephens v The Queen (1978) 139 CLR 315. There must be a fiduciary element in the relationship between the accused and the property: Andrews v The Queen (1968) 126 CLR 198. 'Fraudulently' means dishonestly: Lawrence (1996) 86 A Crim R 412. 'Money' includes cheques and bank accounts: Hunt (1996) 88 A Crim R 307.

The offence can be committed if a person receives property even if it is not delivered to him by the owner and the owner has no knowledge of it, such as when a car dealer receives money on behalf of a finance company: R v J (1987) 9 NSWLR 615.

False Pretences.
False pretences is committed when a person obtains property from another as a result of a false pretence or a wilfully false promise: s. 179. It appears that even if the contractual arrangement is to pass possession, and not ownership, false pretences can be committed: Petronius-Kuff [1983] 3 NSWLR 178.

A false statement of future intention is not a false pretence: Greene v The Queen (1949) 79 CLR 353. However this is covered by the 'wilfully false promise' part of the section. A wilfully false promise is one which is knowingly intentionally false at the time it was made: Harrison [1957] VR 117. A promise is meant in the same sense as a contract, and can be one whose performance depends upon the actions of others (eg false promises about returns on a business): Freeman and Sargent (1981) 4 A Crim R 55.

If the person upon whom the deception is practised realizes the deception is false, no crime is committed even if the property is handed over, but there may be an attempt: Kassis v Katsontonis [1984] 3 NSWLR 330.

The requirement for proof of an intention to defraud requires only proof of an intention to deprive a person by deceit, even if the person does with the property exactly what he says he will: Balcombe v De Simoni (1972) 126 CLR 576, London and Globe Finance Corporation [1903] 1 Ch 728. Where the person deceived is a public official, there is no need to prove economic loss: Welham [1961] AC 103.


Obtaining a Benefit By Deception.
It is an offence to by deception to dishonestly obtain property or a obtained financial advantage, or caused a financial disadvantage: s. 192E. It is not clear whether or not gaining time to pay an existing debt suffices. Using a cheque, later dishonoured, to pay of an existing debt, is not a financial advantage: Fisher v Bennett (1987) 85 FLR 469, but see Matthews v Fountain [1982] VR 1045.

The cause of the benefit being handed over must be the deception: Ho (1989) 39 A Crim R 145. However, it can be proved inferentially that the benefit was obtained by deception, even if no person can say they were deceived, for example where the victim is a corporation (such as a casino): Decision Restricted [2019] NSWCCA 43.

Serving a statement of claim is protected: Jamieson (1993) 67 A Crim R 150.

Using a credit card after it has been cancelled can constitute the offence: Lambie [1981] 3 WLR 88. The offence is not made out when a bank customer continued to make withdrawls from his bank account which the bank knew exceeded the balance of the account: Moore v Regina [2016] NSWCCA 260 esp at para [26].

An omission to inform the alleged victim of some matter where there is no express legal duty to do so will not constitute the offence: CDPP v Poniatowska [2011] HCA 43.

The defence of claim of right applies to the offence of obtaining benefit by deception: Love (1989) 44 A Crim R 416.

Conspiracy to Defraud.
A conspiracy to defraud is made out where there is an agreement by fraudulent means to inflict economic loss on a person or deprive him of an advantage, or to cause a public official to act contrary to his duty. Fraudulently means dishonestly: Horsington and Bortolus [1983] 2 NSWLR 72.

It is not necessary to give the jury a Ghosh [1982] 1 QB 1053 direction that the prosecution must prove that what the accused did was dishonest according to the ordinary standards of reasonable and honest people, unless an issue about whether what the accused did was dishonest arises on the evidence: Peters v The Queen (1998) 192 CLR 493, 72 ALJR 517.Conspiracy to defraud is an offence against the common law of Australia and so may be tried in any state where there is a real connection with the crime: Lipohar v The Queen (1999) 200 CLR 485.

Forgery.
Forgery, or making a false instrument, is an offence: s. 253 Crimes Act. Forgery means making or altering a document so it tells a lie about itself. This does not include falsely witnessing a genuine signature: Brott v The Queen (1992) 173 CLR 426, 66 ALJR 256, 58 A Crim R 97.

Using a false instrument.

It is an offence to make or use a false instrument, intending to induce another person to accept the instrument as genuine, to obtain property, to obtain a financial advantage, or to influence the exercise of a public duty: s. 254 Crimes Act.

For a person to be convicted of using a false instrument as a principal in the first degree, there must be prove that the accused dealt with the document in some way: Sultan v Regina [2008] NSWCCA 175.

A document can be a copy: Nikolaidis v Regina (2008) 191 A Crim R 556 .

(c) robbery, burglary and blackmail

Robbery.
Robbery is constituted by an intention to steal, with some degree of force putting the person in fear, and a taking from the person. It is not necessary for the Crown to establish that the item was held or worn by the victim, it is enough if the item is in his immediate presence: Delk (1999) 46 NSWLR 340, 106 A Crim R 240. There must be proof that force was used to overpower the other party and prevent him resisting, not just to get the property: Gnosil (1824) 171 ER 1206. The force or threat of force must come before the property is taken: Foster (CCA 7/4/95).

There must be an intention to permanently deprive some-one of their property: Salameh (1987) 26 A Crim R 353.

The charge should not be described as assault and rob in the charge, but as robbery: Smith and Kirton (1990) 47 A Crim R 43.

Claim of right is a defence to robbery: Langham (1984) 12 A Crim R 391, Skivington (1967) 1 All ER 483, Fuge [2001] NSWCCA 208. However it is not a dfence to assault.

The penalty for robbery or stealing from the person is 14 years (s. 94). Sentences for 'steal from person' tend to be lower than sentences for robbery.

Robbery in Circumstances of Aggravation.
A robbery is in circumstances of aggravation if any of the following occur before, during or immediately after the robbery:

• the offender uses corporal violence on any person
• the offender maliciously inflicts actual bodily harm on any person
• the offender deprives any person of his or her liberty (s. 95).

Under previous legislation, a 'push' was held not to constitute striking: Clarke (1993) 71 A Crim R 58.

The penalty for aggravated robbery is 20 years gaol (s. 95).

Armed Robbery or Robbery in Company.
Armed robbery or robbery in company is an offence (s. 97).
'Armed robbery' means armed with an offensive weapon or instrument. 'Offensive weapon or instrument' is defined as

• a dangerous weapon (as to which see below);
• anything made or adapted for offensive purposes; or
• anything that in the circumstances is used, intended to be used or threatened to be used for offensive purposes whether or not it is used for offensive purposes or whether or is capable of causing harm

(s. 4 Crimes Act). The definition of 'offensive weapon or instrument' is clearly wide enough to cover (for example) guns, knives, screwdrivers, and blood filled syringes.

'Dangerous weapon' is defined to mean a firearm, a prohibited weapon under the Prohibited Weapons Act, or a spear gun (s. 4 Crimes Act). Replica firearms are included in the definition of prohibited weapons (see Schedule 1 to the Weapons Prohibition Act). For practical purposes, it is important to note that a normal knife (not for example a flick knife) or a screwdriver are offensive weapons, but are not dangerous weapons (see Schedule 1 to the Weapons Prohibition Act). The difference between offensive weapons and dangerous weapon has practical consequences in relation to the maximum penalty (as to which see below) and also the availability of felony murder.

'In company' requires more than that others were present, at least they must be ready to assist or encouraging: Crozier (1996) PD [282]. The requisite intention is that the offender placed himself in a position where he knew or expected that the victim would know of his presence and ability to assist in the robbery if called upon: Leoni [1999] NSWCCA 14. To establish that offenders were 'in company', it has been held that there must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission: Button and Griffen (2002) 54 NSWLR 455. It is also necessary to show that the accused had a common purpose, that is, that there was an express or implied agreement to achieve an agreed end: Markou v Regina [2012] NSWCCA 64 at paras [27] to [28].

The penalty is 20 years unless the offence is aggravated by carrying a dangerous weapon, in which case the penalty is 25 years (s. 97).

Robbery with Wounding.
Where there is an armed robbery or robbery in company and immediately before during or immediately after the robbery the accused wounds or inflicts grievous bodily harm on the person being robbed the penalty is 25 years (s. 98). For offences committed after 3 February 2003, the 'standard non-parole period' is 7 years.

It is not necessary for the Crown to prove that there was an intent to wound: Ryan v The Queen (1967) 121 CLR 205.

Demanding Money with Menaces.
Demanding money with menaces is an offence under s. 99. There is no need to prove an intention to overbear the will of the victim, only to establish an intention to steal: Evans (CCA 7/12/79). A threat to property will suffice to be a menace: Kuo (1999) 49 NSWLR 226. The offence is complete when the demand is made in circumstances where the demand is likely to be communicated: Austin v The Queen (1989) 166 CLR 669, 63 ALJR 413, 40 A Crim R 355. The maximum penalty is 10 years, or if in company, 14 years (s. 99).

Carjacking

It is an offence to assault someone with intent to take a motor vehicle and take and drive or take with intent to drive the motor vehicle. It is also an offence to take a motor vehicle without the owner's consent when there is a person in it (s.154C).The penalty is for the basic offence 10 years (s.154C (1)). For offences committed after 3 February 2003, the 'standard non-parole period' is 3 years. Where there are circumstances of aggravation (in company or armed with an offensive weapon or inflicting actual bodily harm) the penalty is 14 years (s.154C (2)). For offences committed after 3 February 2003, the 'standard non-parole period' is 5 years.

Breaking and Entry.
It is an offence to break and enter premises and commit a serious indictable offence (s. 112). 'Serious indictable offence' is defined as an offence which carries a maximum penalty of 5 years or more (s. 4 Crimes Act). Typically the person may be charged with break, enter and steal.

Breaking can consist of opening a closed but unlocked door or window, but not opening something already partly open: Smith (1827) 1 Mood 178, Galea (1989) 46 A Crim R 158 and Stanford v Regina (2007) 70 NSWLR 474, 179 A Crim R 541. The opening of a closed interior door is sufficient: Regina v Johnson (1786) 2 East PC 448. Entry of any part of the body will suffice.

Where an accused intends to commit an unlawful act on premises which he is permitted to enter, and that permission was obtained by a trick or artifice or threat, there will be a 'constructive breaking' even if entry is obtained without any force: Ghamrawi v Regina [2017] NSWCCA 195 esp at para [97]. That will include a situation where the accused knocks on a door, and on the door being opened, rushes into the house, pushing the victimout of the way: Singh v Regina [2017] NSWCCA 110 esp at para [36].

The penalty is normally 14 years, unless the offence is aggravated (see below).

Aggravated Break and Enter.
The aggravated offence ('home invasion') is committed if the offender is

• armed with an offensive weapon or instrument
• is in company
• uses corporal violence on some person
• intentionally or recklessly inflicts actual bodily harm on some person
• deprives any person of their liberty
• knows that there is a person (or persons) in the place where the offence is committed (s. 105A).

'Offensive weapon' includes anything which is made or adapted for offensive purposes, or which is used, attempted to be used or threatened to be used for offensive purposes (s. 4 Crimes Act). The definition of 'offensive weapon or instrument' is clearly wide enough to cover (for example) guns, knives, screwdrivers, and blood filled syringes.

As to the meaning of 'in company', it has been held that there must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission: Button and Griffen (2002) 54 NSWLR 455.

For aggravated break enter and steal the penalty is 20 years (s. 112 (2)). For offences committed after 3 February 2003, the 'standard non-parole period' is 5 years.

Specially Aggravated Break and Enter

The specifically aggravated offence is committed when the offender :

• intentionally wounds or intentionally inflicts grievous bodily harm on any person
• inflicts grievous bodily harm and is reckless as to causing actual bodily harm to that person; or
• is armed with a dangerous weapon (s. 105A) .

'Dangerous weapon' is defined to mean a firearm, a prohibited weapon under the Prohibited Weapons Act, or a spear gun (s. 4 Crimes Act). Replica firearms are included in the definition of prohibited weapons (see Schedule 1 to the Weapons Prohibition Act). For practical purposes, it is important to note that a normal knife (not for example a flick knife) or a screwdriver are offensive weapons, but are not dangerous weapons (see Schedule 1 to the Weapons Prohibition Act).

For specially aggravated break and enter the penalty is 25 years (s. 112 (3)). For offences committed after 3 February 2003, the 'standard non-parole period' is 7 years.


Related Offences.
Exactly the same penalty structure that applies to break enter and steal also applies to entering premises with intent to commit a felony and breaking out (s. 109).

For the offence of break and enter with intent to commit a felony, the maximum penalty is 10 years, if aggravated, 14 years, and if specifically aggravated, 20 years (s. 113).

Blackmail

It is an offence to commit blackmail, under s. 294K Crimes Act. The maximum penalty is 10 years imprisonment, or, if the offence involves an accusation or threatened accusation of an indictable offence, 14 years imprisonment.

The elements of the offence appear to be:

-a person intentionally made an unwarranted demand;

-the demand was accompanied (intentionally) by a menace, meaning a threat of something detrimental or unpleasant to another person;

-the accused did not believe on reasonable grounds that there were reasonable grounds for the demand;

-with the intention of making a gain for the defendant or a loss for someone else or influencing someone in the exercise of a public duty.

(Petch v Regina [2020] NSWCCA 133)


(d) receiving and goods in custody

Receiving.
The elements of receiving are:

• the goods are stolen
• the stealing is a felony
• the accused received disposed of or attempted to dispose of the goods AND
• he knew at the time the goods were stolen (s. 188 Crimes Act).

The maximum penalty is 10 years, but if the property is a motor vehicle or a motor vehicle part, 12 years.

Proof of Theft.
The fact that the goods are stolen must be proved by evidence admissible against the alleged receiver (e. g. not the out of court admissions of the thief- but see Ollerton (1989) 40 A Crim R 1, Mabbott (1989) 40 A Crim R 243). Normally the owner of the property must be called to give evidence.

Proof of Possession.
The receiver must be in possession of the goods. Mere presence in a car where the goods are found is insufficient: Fien (1962) NSWR 134.

Knowledge.
It must be proved that the accused knew had a state of belief about the goods which amounted to:

• knowledge (Parker [1974] 1 NSWLR 14 )
• belief equivalent to knowledge (Raad [1983] 3 NSWLR 344, Armstrong (1990) 48 A Crim R 382, Dykyj (1993) 66 A Crim R 567) or
• suspicion coupled with a failure to make inquiries: Schipanski (1989) 17 NSWLR 618.

It is not sufficient that a reasonable man would have known that the goods were stolen: Parker. However it is permissible for the judge to say that the jury may convict if they find that the accused must have known that the goods were stolen: Fallon (1981) 4 A Crim R 413, Whalebone (1983) PSR 2904. If directions are given about wilful blindness, it must be stressed to the jury that this is only a step and that the crucial question was the actual belief of the accused: McConnell (1993) 69 A Crim R 39, Dykyj (1993) 66 A Crim R 567.

An altered engine number doesn't necessarily mean that even a dealer will know the goods are stolen: Seaton [1994] PD [178].

The belief that the goods were stolen must exist at the time when the goods come into the possession of the defendant: Curlija [1967] SASR 1, Murphy (1984) 12 A Crim R 38.

Recent Possession.
Where the accused is in possession of goods which are recently stolen, the jury is entitled to convict the accused of stealing or receiving unless it finds that the explanation given by the accused could reasonably be true: Bellamy [1981] 2 NSWLR 727, Ately (1985) 9 NSWLR 226, Kavanagh (CCA 1/9/82 PSR 2576), Bruce v The Queen (1987) 74 ALR 219, 61 ALJR 603. It is incorrect to refer to the doctrine as raising a presumption: Claxton (CCA 23/3/84 ). The doctrine does not operate unless there is first proof that the goods are stolen: Trainer v The Queen (1906) 4 CLR 126.

The Alternative Count.
Where an accused is charged with both larceny and receiving a special verdict is available where the jury is unable to determine if the goods were stolen or received: s. 121 Crimes Act. The jury should be directed that before returning a verdict of guilty for larceny, the jury must be satisfied unanimously that the accused is guilty of larceny, not receiving, and vice versa: Nguyen (NSW CCA u/r 20/2/97, (1997) 4 Crim LN [669]). The counts of receiving and larceny must relate to the same property, and the jury must be directed that they can only return a verdict of guilty on the special verdict if they are not satisfied beyond reasonable doubt on the larceny and receiving counts: Clarke (1995) 78 A Crim R 226. If the accused is not charged with the alternative count, the jury must be directed that in considering the larceny count, the jury must be satisfied that there is no reasonable possibility that that the accused is guilty of receiving, and presumably vice versa: Regina v McCarthy and Ryan (1993) 71 A Crim R 395.

Money laundering

It is a an abuse of process to charge an accused with a substantive offence of selling an illegal object, and also charging the accused with a money laundering offence for possession of the money: Nahlous v Regina [2010] NSWCCA 58. For the offence of laundering money reasonably suspected of being stolen or the proceeds of crime, the prosecution does not need to specify a particular offence: Lin v Regina [2015] NSWCCA 204.

There is a complex hierachy of offences depending upon the amount of money involved, and state of knowledge of the accused as to whether or not the money was believed to be stolen or the proceeds of crime by the accused, suspected of being stolen or the proceeds of crime by the accused, or reasonably suspected of being stolen or the proceeds of crime. It is a breach of the principles in The Queen v De Simoni (1981) 147 CLR 383 for a judge to sentence an offender who has pleaded guilty to the offence of suspecting that money was the proceeds of crime on the basis that he knew the money was the proceeds of crime: Shi v Regina [2014] NSWCCA 276.

The Offence of Goods in Custody

The offence of goods in custody has the following elements:

• the defendant had in

 

• his custody
• in the custody of another person
• in premises or
• gives custody to a person not lawfully entitled to possession of the thing AND

• a thing that may reasonably be suspected of being stolen or otherwise unlawfully obtained

The maximum penalty is $550 or 6 months gaol. but if the 'thing' is a motor vehicle or motor vehicle part, $1100 or 1 year gaol: s. 527C Crimes Act.

Goods in Custody.
The goods can consist of bank notes (Dittmar [1973] 1 NSWLR 722) but not credits in a bank account: Grant v The Queen (1981) 147 CLR 503. The very goods must be suspected of being stolen. It does not suffice to be the proceeds of sale of stolen goods: Brebner v Seager [1926] VLR 166. It is enough if some of the items are suspect: Edens v Cleary [1975] 1 NSWLR 278.

Custody.
Custody means immediate de facto control: Ex parte McPherson (1933) 50 WN (NSW) 25. In shared premises there must be evidence of knowledge of the existence of the goods and evidence excluding possession on the part of other residents: JAL and LL (1974) 3 DCR 182 .

The custody must be at the time of arrest: English (1989) 17 NSWLR 149, Larkey v Lahz (1993) PD [24]. If the goods are found by the police after the accused is in custody, arguably the goods are not in his custody: DPP v Miers (1997) 96 A Crim R 408, Dahl (1997) 96 A Crim R 502.

S. 527C (1) (d) includes the situation where suspect goods have been sold to an innocent third party: Gilroy v Jebra (1992) 29 NSWLR 20. Prosecutions under s. 527C (1) (d) relating to giving custody of a motor vehicle to another must be commenced within 2 years of the date of the offence (s. 527(1A)).

Reasonably Suspected of Being Stolen.
The magistrate must be satisfied beyond reasonable doubt that the goods are reasonably suspected of being stolen or unlawfully obtained on the basis of all the evidence available to him: Ex parte Patmoy; re Jack (1944) 44 SR (NSW) 351, Anderson (1992) 62 A Crim R 277. It may not be enough to show that there are competing lawful inferences: Chan (1992) 28 NSWLR (per Mahoney J, but contra see Abadee J: must be the strongest inference available). It is not necessary to show that the goods were stolen or unlawfully obtained in NSW: Porter [2004] NSWCCA 353.

It is the opinion of the magistrate, not the arresting officer that is important: Parker v Todhunter (1987) 26 A Crim R 169. Suspicion must attach to the goods, not just the thief: O'Sullivan v Tregaskis [1948] SASR 12. Hearsay has been said to be admissible (Tucs v Manley (1985) 62 ALR 460), (but this is really a case on expert evidence?).

There must be an intention to use the goods in a way inconsistent with the owner's use: Neilands (Ducker 4/4/91 u/r).

The Defence.
It is a defence for the defendant to show on the balance of probabilities that he had no reasonable grounds to suspect the items: Tegge v Caldwell (1988) 15 NSWLR 226.

(e) implements

Possession of an Implement.
Possession of an implement without lawful excuse capable of housebreaking or entering a car is an offence: s. 114. If the item is carried by a companion, there must be evidence not only of knowledge but of joint control: Pierpoint (1993) 71 A Crim R 187.

Older authorities said that the implement is one ordinarily used for lawful purposes there must be evidence that the accused had the implement with the intention of using it: Oldham (1852) 3 Carrington and Kirwan 249, Kirwan (1932) JP Reports 137, and Marijancevic (1991) 54 A Crim R 431. However it was held in Reynolds (NSWCCA unreported 22/8/1986) that the Crown simply has to establish that the item is capable of being used for that purpose (see also Pierpoint). It is submitted that the earlier authorities are to be preferred.

The accused has the onus of proving lawful excuse on the balance of probabilities: Patterson [1962] 2 QB 429.

The maximum penalty for the offence is 7 years imprisonment.

(f) money laundering

'Dealing with'

'Dealing with' is defined to include receiving, possessing, concealing or disposing of, bringing into NSW (including by electronic transfer) or engaging directly or indirectly in a transaction (s. 193A Crimes Act).

Money laundering

There is a cascading series of offences of dealing in the proceeds of crime depending on the level of awareness of the money being the proceeds of crime.

The offence of dealing with the proceeds of crime, knowing that it is the proceeds of crime, and intending to conceal that it is the proceeds of crime, has a maximum penalty of 20 years: s. 193B (1) Crime Act.

The offence of dealing with the proceeds of crime, knowing that it is the proceeds of crime, has a maximum penalty of 15 years: s. 193B (2) Crimes Act.

The offence of dealing with the proceeds of crime, reckless as to whether it is the proceeds of crime, has a maximum penalty of 10 years: s. 193B (3) Crimes Act.

Property suspected of being the proceeds of crime

It is an offence to deal with property where there are reasonable grounds to suspect the property is the proceeds of crime: s. 193C Crimes Act. If the value of the property is $100,000 or more, the maximum penalty is 5 years imprisonment: s. 193C (1). If the value of the property is under $100,000, the maximum penalty is 3 years imprisonment: s. 193C (2).

Without limiting the grounds which may establish reasonable grounds, various circumstances are specified as satisfying that requirement, including payments structured to avoid the financial reporting requirements, property grossly out of proportion to the defendant's income and expenditure, and making a claim to act for someone else without providing information for that person to be identified: s. 193C (3).

It is s defence for the defendant to establish that he had no reasonable grounds for suspecting that the money was the proceeds of crime: s. 193C (4).

Dealing with property which subsequently becomes an instrument of crime

For offences of dealing with property which becomes an instrument of crime, there are again cascading offences, depending on the state of knowledgeof the defendant.

'Property' means money or other valuables: s. 193D (5).

It is an offence to deal with property intending that the property will subsequently become an instrument of crime, where the property subsequently becomes an instrument of crime. The maximum penalty is 15 years imprisonment: s. 193D (1).

It is an offence to deal with property being reckless as to whether the property will become an instrument of crime. The maximum penalty is 10 years: s. 193D (2).

11/. Attempt, Conspiracy and Complicity.

Accessorial Liability

Accessorial liability is probably the most complicated area of the criminal law. In this chapter, I have attempted wherever possible to draw out what directions should be given in practice. It is acknowledged that many of the decisions referred to below appear to be inconsistent and indeed irrenconcilable.

(a) Attempt

Mens Rea of Attempt.
The mens rea for attempt is intention. Recklessness will not suffice, but may be evidence of intention: Mohan [1976] QB 1, Alister v The Queen (1984) 154 CLR 404, 58 ALJR 97, Knight v The Queen (1992) 175 CLR 495, 66 ALJR 860, 63 A Crim R 166 (esp at para [18]),Inegbedion v Regina [2013] NSWCCA 291 esp at paras [15] to [19].

Actus Reus of Attempt.
There are a number of competing tests for the actus reus of attempt:

• unequivocality test- Davey v Lee [1968] 1 QB 366
• perpetration rather than preparation- Robinson [1915] 2 KB 342
• last act depending on the accused- Stonehouse [1977] 2 All ER 1269, Eagleton (1855) Dears CC 515
• proximity test- are the acts sufficiently proximate, or too remote- Eagleton, Hope v Brown [1954] 1 All ER 330.

For Commonwealth offences, the test is whether the conduct was more than merely preparatory to the commission of the offence: Commonwealth Criminal Code section 11.1, Inegbedion v Regina [2013] NSWCCA 291 esp at para [17].

The intention of the accused is relevant in determining whether or not the acts were sufficiently proximate: O'Connor v Killian (1984) 15 A Crim R 353. Thus trying the doors of a car will not be sufficiently proximate unless there are also admissions: Brinkworth v Zimmer (Yeldham J 16/10/84 )

Impossibility.
If an accused is charged with attempting to commit an offence, if the Crown proves intention, and an unequivocal act going beyond mere preparation, impossibility is no defence: Mai (1992) 60 A Crim R 49 and Gulyas (1985) 2 NSWLR 260, not following Donnelly [1970] NZLR 980 cited in Haughton v Smith [1975] AC 476. See also Commonwealth Criminal Code section 11.1(4) and Onuorah v Regina [2009] NSWCCA 238.

In McCoy (2001) 51 NSWLR 702, 123 A Crim R 81 a conviction for knowingly take part in the manufacture of methylamphetamine was quashed because the materials used could never make methylamphetamine. However, a conviction of conspiracy to manufacture drugs with the ingredients which could never make those drugs was upheld in El-Azzi [2004] NSWCCA 455.

Attempting to Pervert the Course of Justice.

It is not necessary to prove that the act has a prospect of perverting the course of justice, as long as it is aimed at having that effect: Murphy [1985] 4 NSWLR 42. There must be identifiable court proceedings, not just a police inquiry: The Queen v Rogerson (1991) 51 A Crim R 359, (1992) 60 A Crim R 429, (1992) 174 CLR 268, 66 ALJR 500. Where proceedings have not been commenced, it is necessary for the Crown to prove that the defendant was apprehensive of a prosecution for the offence, and took the actions to avoid a prosecution being brought: Regina v OM [2011] NSWCCA 109. Sentences: collected in Taouk (1993) PD [61].

Attempting to Aid and Abet or Conspire

It is not an offence to attempt to aid and abet or conspire: Commonwealth Criminal Code section 11.1(7).

(b) Conspiracy.

Conspiracy.
Conspiracy is an agreement to do an unlawful act, or to do a lawful act by unlawful means. The actus reus is the agreement itself. The mens rea is the intention to carry out the unlawful purpose: Wilson (1994) PD [385]. Recklessness is not sufficient: Peters v The Queen (1998) 192 CLR 493, 72 ALJR 517 at 530.

It is necessary for there to be at least two parties to the conspiracy, both of whom intend to carry out the agreement: Gerakiteys v The Queen (1984) 153 CLR 137, 58 ALJR 182. At common law aconspiracy could be constituted simply of a husband and wife because they are regarded at law as one person: Mawji [1957] AC 126, but this the common law position has been reversed by s. 580D Crimes Act. It is not necessary for at least two parties to be convicted of conspiracy: The Queen v Darby (1982) 148 CLR 668, 56 ALJR 688, Commonwealth Criminal Code section 11.5(3). Where the evidence against one party is significantly different from that against other parties consideration should be given to separate trials: Darby.

Under the Commonwealth Criminal Code a conviction can be sustained for conspiring to commit more than one offence: B v Regina [2008] NSWCCA 85.

Late joining of a conspiracy

The Crown does not haveto prove that all the members of the conspiracy joined the conspiracy at the same time. An accused who joins an existing conspiracy at a time after it was formed can still be found guilty of conspiracy: Damoun v Regina [2015] NSWCCA 109 esp at para [27].

Types of conspiracy.
Conspiracies to commit a criminal act are conspiracies but so are:

• conspiracy to defraud
• conspiracy to commit a tort
• conspiracy to corrupt public morals
• conspiracy to pervert the course of justice: there must be an intention to do this: Freeman [1985] 3 NSWLR 303
• conspiracy to effect a public mischief: may not exist: Withers [1975] AC 842 , Cahill [1978] 2 NSWLR 453.

Multiple Parties.
A conspiracy involving many people cannot be established if the only evidence is that there were many small conspiracies: Gerakiteys v The Queen (1984) 153 CLR 317, 58 ALJR 182.

Spouses can be co-conspirators

There is no longer a rule that a husband and a wife cannot be guilty of conspiring with each other under state law (s. 580D Crimes Act) and Commonwaelth law (Namoa v Regina [2020] NSWCCA 62 esp at para [85].

Withdrawal from a Conspiracy

A person cannot be convicted of conspiracy to commit a Commonwealth offence if before an overt act was committed, the person withdrew from the agreement and took all reasonable steps to prevent the commission of the offence: Commonwealth Criminal Code section 11.5 (5).

Co-Conspirators Rule.
Acts or statements of a co-accused in furtherance of a conspiracy may be admissible against a co-accused. Normally narrative accounts of what has already happened (for example, rcords of interview after arrest) are not in furtherance of the conspiracy: Tripodi v The Queen (1961) 104 CLR 1.

Statements of a co-accused in furtherance of the conspiracy are admissible to prove the existence of the conspiracy. Statements are only admissible to prove that an accused participated in the conspiracy if there is already reasonable evidence of the existence of the conspiracy. Reasonable evidence appears to mean the same as prima facie case, with a discretion to reject the evidence: Ahern v The Queen (1988) 165 CLR 87, 62 ALJR 400, Masters (1992) 59 A Crim R 445 at 459. The statements by which the conspiracy is made are not admissible: Masters.

The jury should be warned that evidence admitted under the co-conspirators rule should be scrutinized with care: Chai (1991) 60 A Crim R 305. The jury should be directed what evidence is admissible against each accused: Checconi (1988) 34 A Crim R 160, Salib and Hanna (u/r, 8/12/89 ).

Conspiracy and Substantive Offences.
Where there is a substantive offence there should not be a duplication in penalties, and the penalty for the conspiracy should not exceed that set for the offence. Generally it is undesirable to profer a charge of conspiracy where a substantive charge is available: The Queen v Hoar (1981) 148 CLR 32. In Commonwealth matters, the court may dismiss a charge of conspiracy if it is in the interests of justice to do so: Commonwealth Criminal Code section 11.5 (6).

Conspiracy with Party Unknown.
A count of conspiracy can refer to a conspiracy with persons unknown: Gerakiteys v The Queen (1984) 153 CLR 313 at 334, Harrison (1995) 79 A Crim R 149.

Conspiring to Commit the Impossible.
It is not an offence to join in a conspiracy to do an act which is impossible to commit : Barbouttis (1995) 82 A Crim R 432. This is not the case with Commonwealth offences: Commonwealth Criminal Code section 11.5(3).

Conspiring to be reckless

The Crown can charge an accused with conspiring to commit an offence where the mental element is recklessness, but both under the Commonwealth Criminal Code and at common law, in order to establish the offence the Crown must prove actual knowledge of the facts which make the act or acts unlawful: Regina v RK and LK [2008] NSWCCA 338. Special leave to appeal against this decision was granted and the High Court is currently reserved on the matter.

Conspiracy and Jurisdiction.
It now appears that a NSW court has jurisdiction to deal with a conspiracy in Australia as long as there is a real connection with NSW: Lipohar v The Queen (1999) 200 CLR 485. It is an offence in NSW to conspire outside NSW to commit an offence in NSW. It is not clear if it is an offence in Australia to conspire in Australia to commit a crime outside Australia (Isaac (1996) 87 A Crim R 513).

Procedure.
The accused is entitled to particulars of the precise scope of the conspiracy: Mok (1987) 27 A Crim R 438. If the Crown moves away from the conspiracy as opened upon, the trial may miscarry: Wong (u/r, 27/5/88), Mok.

Penalty for Conspiracy

At common law the penalty for conspiracy was at large (i.e. there is no maximum penalty). For conspiracy to commit a Commonwealth offence, the maximum penalty is the maximum penalty for the substantive offence: Commonwealth Criminal Code section 11.5(1).

(c) Complicity

Degrees of Participation.
There are the following degrees of participation:

• principal in the first degree-commits the act- there may be more than one
• principal in the second degree- present at the commission of the crime, encouraging but not participating physically
• accessory before the fact- takes part in the preliminary stages of the crime but not present when it is committed
• accessory after the fact- takes part in subsequent stages of the crime- eg. preparing a hiding a hiding place.

See Osland v The Queen (1998) 197 CLR 316 especially per McHugh J.

Proof that a Crime Has been Committed.
It is necessary for the prosecution to establish that a crime has actually been committed: Demirian (1989) VR 97. It cannot be proved by a certificate of conviction of the principal: Triffett (1992) 64 A Crim R 145, Welsh (1998) 105 A Crim R 448, but see Carter and Savage (1990) 47 A Crim R 55. However because the principal can raise a defence does not prevent the accessory from being guilty: Cogan and Leak (1975) 2 All ER 1059, Howe (1987) AC 417, Attorney General's Reference (no. 1 of 1975) (1975) QB 777, Osland v The Queen (1998) 197 CLR 316.

Knowledge.
It was not enough to establish that the accused was aware that some illegal venture was planned, there must be evidence of knowledge that the accused was aware that a venture of the type committed was planned: Bainbridge (1960) 1 QB 129.

Presence.
Mere presence is not enough, unless there is an intention to encourage, ready to assist: Wilcox v Jeffrey (1951) 1 All ER 464, Phan (2001) 53 NSWLR 480, 123 A Crim R 30.

Withdrawal.
To withdraw there must be timely communication of the intention to abandon the common criminal purpose communicated to those who desire to continue with it: Becerra and Cooper (1975) 62 Cr App R 212, White v Ridley (1978) 140 CLR 342, Tietie (1988) 34 A Crim R 438. The accused must take reasonable steps to withdraw his encouragement: Wilton (1993) 64 A Crim R 359, White v Ridley. If the accused honestly does not believe that the others will still commit the crime he is entitled to be acquitted: Truong (1998) 5 Crim LN [879]. For Commonwealth offences see Commonwealth Criminal Code section 11.2 (4), 11.5(4).

Mens Rea.
To establish the mens rea for being an aider and abettor there must be proved knowledge of the essential facts that constitute the offence and intention that the offence be committed. Recklessness is not sufficient. Wilful blindness is only relevant in that it may be evidence of intention: Giorgianni v The Queen (1985) 156 CLR 473.

Joint Criminal Enterprise

In Tangye (1997) 92 A Crim R 545 at 556-7 Hunt CJ at CL set out the principles relating to joint criminal enterprise which have been accepted in other cases including Regina v Chishimba [2010] NSWCCA 228 at para [29]:

“(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.

(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.

(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.

(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission” (at 556 – 557).

In Youkhana v Regina [2015] NSWCCA 41 esp at para [9] it was held that it was not necessary to show that an accused is assisting or encouraging another participant to commit the crime if it was established that the accused was a party to the joint enterprise.

In order to establish that a person is ciminally liable by way of joint enterprise, it is not necessary for that person to be actually present at the the commission of the crime: Dickson v Regina [2017] NSWCCA 78 esp at paras [47] and [48].

Joint enterprise for manslaughter by way of unlawful and dangerous act

The Judicial Commission bench book suggests the following direction be given where the Crown case is that there is joint enterprise between A and B to commit a robbery on (V1) and B stabs and kills a bystander (V2):

1. The accused A and B entered into a joint criminal enterprise to rob V1.
2. B did an unlawful and dangerous act by stabbing V2 with a knife, thereby causing the death of V2.
3. B did the act of stabbing of V2 as an incident in the carrying out of the joint criminal enterprise to rob V1.
4. At the time of entering into the joint criminal enterprise to rob V1, and up to and including the time of the stabbing, the accused knew that B had the knife, which B used to stab V2.
5. At the time of entering into the joint criminal enterprise to rob V1, and up to and including the time of the stabbing, the accused contemplated that as an incident in the carrying out of the joint criminal enterprise to rob V1, B might do an unlawful and dangerous act, namely stabbing someone with the knife, thereby causing an appreciable risk of serious injury to that person, and the accused, having that contemplation, continued to participate in the joint criminal enterprise to rob V1.

Where the Crown case is that A and B agreed to assault V, and he dies as a result of an assault, the Crown must establish that:

• A and B agreed to assault V
• B did an unlawful and dangerous act (an assault) which caused the death of V
• A and B had an understanding or agreement that an act would be committed which exposed V to an appreciable risk of serious injury

See TWL v Regina [2012] NSWCCA 57.

Joint Enterprise for Maliciously Inflict Grievous Bodily Harm

The mens rea for a principal in the second degree in the offence of maliciously inflict GBH was held to be:

(1) that A knew (or was aware):

(a) of the intention of B to hit the victim, and

(b) that B:

(i) intended thereby to inflict some physical injury upon the victim, or

(ii) realised the possibility that some such injury might result but he nevertheless intended to go ahead and hit the victim; and


(2) that, with that knowledge, A intentionally assisted or encouraged B to commit the crime of maliciously inflicting grievous bodily harm upon the victim (Stokes and Difford (1990) 51 A Crim R 25 at 41).

Malicious Wounding with Intent

In Prince v Regina [2013] NSWCCA 274 the NSW CCA appears (at [77], per Schmidt J, with whom Gleeson JA agreed) to have accepted a Crown submission that where there is a charge of malicious wounding with intent on a joint enterprise basis, the prosecution must prove (as against a principal in the second degree, that is someone who was present but did not inflict the relevant injury) that

• the victim was recklessly wounded by one of the accused's co-offenders;
• the accused was part of a joint criminal enterprise to attack the victim;
• that he was acting in company with his co-offenders who he knew were armed with weapons, capable of inflicting a wound when used to strike the victim;
• that he realised that the victim might be wounded, as a result of the actions taken by one of his co-offenders;
• despite this, he continued to participate

Joint Enterprise for Malicious Wounding