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GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
In this decision, the CCA (Payne JA; Rothman and Harrison JJ agreeing) has declared that ‘intentionally chokes’ within the meaning of s 37(1A) of the Crimes Act 1900 means ‘intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head’.
Totaan v R [2022] NSWCCA 75
In this decision the Court of Criminal Appeal (‘CCA’) a five-judge bench has overturned NSW and interstate authority on the question of hardship to third parties when sentencing federal offenders. The Court held that there is no requirement that such hardship meet the description of being ‘exception
McKinley v R [2022] NSWCCA 14
In this decision the Court of Criminal Appeal (‘CCA’) upheld the appeal on the basis that the ‘Ellis’ discount given to the offender for disclosing previously-unknown offending was insufficient. The decision seems to update, to some extent, previous authority which had purported to set arithmetical
Darcy v R [2022] NSWCCA 54
As a Table 1 offence, the various forms of offence in s 114 often offer parties a less serious alternative charge in cases involving robberies and break and enter offences. Unfortunately, the ‘sister’ offence in s 115 committing a s 114 offence, having previously been convicted of an indictable offe
Black v R [2022] NSWCCA 17
What is the appropriate discount in a matter on indictment if a defendant offers in the Local Court to plead guilty to an alternative charge which is on the charge certificate, but that offer is not accepted by the prosecution until the matter has already been committed for trial? In this case, the
Lloyd v R [2022] NSWCCA 18
Most criminal law practitioners will be familiar with the authorities urging sentencing courts to exercise caution before giving any weight to untested statements made by offenders to experts. Here, the Court of Criminal Appeal (‘CCA’) has observed that there is no ‘principle’ that such statements a
McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298
In this decision the Court of Appeal has held that the District Court appeal jurisdiction requires an appellant to establish ‘error’ – even if it is unhelpful to describe the jurisdiction as being ‘error-based’. More to the point, the error might simply be that the magistrate should not have been co
Ahmed v R [2021] NSWCCA 280
In this decision the Court of Criminal Appeal has held that in cases where the accused bears an onus in relation to a defence, there is a particular need for the judicial officer to direct themselves that the failure of the accused to give of sworn evidence cannot be used as a factor on the question
Ah Keni v R [2021] NSWCCA 263
In this decision the CCA has found that in order to be guilty of being an accessory after the fact, an offender has to take active steps to assist the principal offenders. It will not be enough to simply fail to report the offence to the police – although silence might sometimes be relevant to objec
Xue v R [2021] NSWCCA 270
In this decision the Court of Criminal Appeal (‘CCA’) has held that when prosecuting an offence of dealing with property that there are reasonable grounds to suspect are proceeds of crime, the Crown can rely upon a non-specific ‘serious offence’ as the source of the proceeds. This is to be contraste
Edwards v The Queen [2021] HCA 28
In this decision of the High Court, both judgments make comments favouring the provision of all electronic data to defendants (as distinct from merely telling them that the material exists). But it also serves as a reminder that if there is late disclosure and the defendant does not seek to make use
Lai v R [2021] NSWCCA 217
In this case the CCA has criticised the practice of tendering a letter on sentence, without exposing the offender to cross-examination.
Mourtada v R [2021] NSWCCA 211
In this decision the Court of Criminal Appeal (‘CCA’) has added yet more commentary to saga interpreting the legislation providing for the imposition of an Intensive Correction Order (‘ICO’)
Nasrallah v R [2021] NSWCCA 207
This decision of the CCA exposes a potential problem in trying to apply the principles from Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’) to cases where there may not have been a lengthy history of trauma, but rather only one or two traumatic episodes, and perhaps against a background of less depri
Lunney v Director of Public Prosecutions [2021] NSWCA 186
In this decision, the Court of Appeal has held that in a District Court appeal against conviction, the issues to be considered by the judge are those raised by the parties. If the appellant does not raise for consideration a point that requires a review of the whole of the evidence, then a judge wil
Meoli v R [2021] NSWCCA 213
In this decision the Court of Criminal Appeal (‘CCA’) has held that whilst prospects of rehabilitation, and unlikelihood of reoffending are separate and distinct factors, the burden of establishing the latter falls on the offender – and in any event the two issues will often be co-extensive.
Ke v R [2021] NSWCCA 177
In this case the Court of Criminal Appeal (‘CCA’) has held that when considering the Early Appropriate Guilty Plea sentencing discounts, if it happens to be the case that the parties failed to record in the Case Conferencing Certificate an offer which was formally made in writing by a defendant, the
Naberezhnov v R [2021] NSWCCA 142
You might think drugs and music festivals seem to go hand-in-glove; a fact which was as true at Woodstock as it is today. In this decision, however, the CCA has used the occasion to observe that just because it might be notorious that drugs are consumed and distributed at music festivals, that gener
Huynh v R [2021] NSWCCA 148
The Court of Criminal Appeal (‘CCA’) has held that, in appeals to the District Court, if the original sentence included a conviction and the appellant a mental health diversion, they need to lodge a conviction appeal, not just a sentence appeal – under both Commonwealth and State regimes. A convicti
Stoneham v Director of Public Prosecutions (NSW) [2021] NSWSC 735
This single-judge decision provides that it will be an error if a Magistrate adjourns a sentence to get around the Local Court 5-year jurisdictional limit for offenders already serving a sentence.