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Higgins v R [2020] NSWCCA 149
This decision reinforces previous authority in relation to the co-conspirators rule, and particularly the (in)admissibility of certain kinds of admissions made. It also draws specific attention to the test for the taking of ‘judicial notice’ of things, and emphasises the importance of the court givi
Kabir v R [2020] NSWCCA 139
The Court of Criminal Appeal (‘CCA’) has found that requiring an offender to verbally answer whether they want offences taken into account on a s 16BA schedule would be a triumph of form over substance; it should usually be enough in Commonwealth matters (at least) if their lawyer confirms the offen
Pehar v R [2020] NSWCCA 118
The Court of Criminal Appeal (‘CCA’) has confirmed that an offence is not aggravated merely because another person is present ‘in company’ with the offender. For the statutory aggravating factor to be engaged, there must be a principled explanation as to why the presence of another person renders th
Ford v R [2020] NSWCCA 99
When working through the different types of aggravated and ‘specially’ aggravated break and enter offences, the CCA has determined that the various factors are untethered from one another. The correct approach is to cascade through s112 according to its subsections, at each stage only asking whether
Jurd v R [2020] NSWCCA 91
The Court of Criminal Appeal (‘CCA’) has determined where spouses and other family members have a right to object to giving evidence for the prosecution, the procedure needs to be followed carefully – especially since (contrary to some older authority) it has the capacity to affect the rights of the
Park v R [2020] NSWCCA 90
If you think the question of Local Court sentencing jurisdiction has been settled for about 20 years, prepare to be unsettled. In this decision, by the barest of majorities, the CCA has endorsed the existing position – but it has been found to be ‘arguable’ that the way we have been approaching this
Kennedy v R [2020] NSWCCA 49
The Court of Criminal Appeal (‘CCA’) has examined the sentencing range for ongoing supply – which is due to become a Table 1 offence soon – and held that at least in the circumstances of this case, no penalty other than a conviction was necessary.
Kahil v R [2020] NSWCCA 56
Some practitioners likely have health concerns which place them at particular risk if they contract COVID-19. Those practitioners may also feel compromised by the lengthy history of some matters, so that they don’t feel they can withdraw, especially if there is no other representation available (for
Amante v R [2020] NSWCCA 34
The Court of Criminal Appeal (‘CCA’) has found that a court is not taking ‘judicial notice’ of a fact where what it is doing is combining pieces of evidence from which a particular finding might be inferred – like combining a photo with Agreed Facts to make a finding that the structural integrity of
Bradley v Senior Constable Chilby [2020] NSWSC 145
The Supreme Court has reiterated that the duties of disclosure are broad, and a failure to comply with them can (and here, did) result in a temporary stay of proceedings, where police refused to produce a criminal history, Facts Sheets, and records of conversations between police officers and the po
Jackson v R [2020] NSWCCA 5
The Court of Criminal Appeal (‘CCA’) has considered whether, in light of recent High Court authority, there is a different standard of proof to be applied to uncharged acts when there is only one complainant in sex matters, versus when there is more than one. This was not thought to be the right veh
Vasilevski v R [2019] NSWCCA 277
What is the truth, anyway? In a debate befitting the times of ‘alternative facts’, the CCA has considered whether offences of persuading someone to withhold ‘true evidence’ refer to evidence that the witness believes to be true, or evidence which is objectively true. Although strictly unnecessary to
Hogg v R [2019] NSWCCA 323
In this decision of the Court of Criminal Appeal (‘CCA’), the Court has examined the use of the ‘special caution’ and how it may (or may not) qualify the right to silence.
Wood v R [2019] NSWCCA 309
The CCA has made it clear in this decision that there needs to be a bright-line distinction between factors which go to the objective seriousness of the offending, and those which go to the subjective case of the offender. However, they have also held that the concept of ‘moral culpability’ stands s
HT v The Queen [2019] HCA 40
In a High Court decision which was handed down close to publication deadline (leaving the door open for this perpetually-late author to do the summary), the High Court has determined that it is not permissible to use ‘closed material’ procedures on sentence, in which an affidavit is provided to the
Purves v R [2019] NSWCCA 227
In this decision the CCA has held that it is essential to the procedure in s 16BA of the Commonwealth Crimes Act that the offender is actually asked, by the Court, that they want the offences taken into account on sentence.
Darestani v R [2019] NSWCCA 248
In this decision the CCA has held that when deciding whether something is an imitation firearm, the use and intention of the accused at the time of possession is relevant to the question of whether a toy falls within the statutory definition for the purpose of the offence.
Jones and Anor v Booth and Anor [2019] NSWSC 1066
In comments made in the context of applications under s 32 of the Mental Health (Forensic Provisions) Act, but which are relevant to any case where there is expert evidence of mental illness, the Supreme Court has commented on the circumstances in which it will be appropriate to have a psychologist
Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236
This decision of the Court of Criminal Appeal deals with two important issues: when do you have to challenge a sentencing judge on a favourable position they expressed to your opponent? And can adverse use be made of affidavits of assistance if they are not induced? The answers are, respectively: Wh
Casella v R [2019] NSWCCA 201
In this decision the Court of Criminal Appeal (‘CCA’) has thrown more fuel on the fire in the competing decisions around Intensive Correction Orders (‘ICOs’). First, by finding that ICOs of 6 months or less are fine. And secondly, by challenging whether a court is obliged to positively determine tha