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Mohana v R [2023] NSWCCA 61
The Court of Criminal Appeal (‘CCA’) has determined that the offence of participate in criminal group requires proof of a single serious indictable offence, and identification of a series of disparate, even if connected, offences will not be sufficient.
Nguyen v Director of Public Prosecutions (NSW) [2023] NSWCCA 42
The CCA has determined that, in proving indecency in the context of publishing an indecent article, there is no subjective element. That is, the question of indecency here (and, seemingly, in most other offence provisions) is determined wholly objectively.
Liu v R [2023] NSWCCA 30
In this decision the Court of Criminal Appeal (‘CCA’) has confirmed Western Australian authority as to the principles applicable when sentencing an offender of advanced age. Those principles essentially distil to the proposition that advanced age must be taken into account as a mitigating factor on
Bhatia v R [2023] NSWCCA 12
Where a close friend or family member commits a sexual offence, they may still be entitled to rely on good character despite the statutory exclusion, provided there is no evidence that they used that good character to get access to the victim. As ever, no prescriptive approach can be set out.
Kanbut v R [2022] NSWCCA 259
In this decision the CCA has observed that a tendency notice which simply asserts all the allegations in the prosecution case is unlikely to meet the objectives of the tendency rule, and examined the injustice which can arise when the jury directions from such a faulty tendency notice do not correct
R v Russell [2022] NSWCCA 294
In this decision the Court of Criminal Appeal (‘CCA’) has examined whether a witness who is unresponsive or silent will give rise to exceptions in the Evidence Act which would otherwise allow the tender of an earlier statement, either based on the credibility rule, or based on the ‘maker unavailable
White v R [2022] NSWCCA 241
In this decision the Court of Criminal Appeal (‘CCA’) has held that there is a different test to be applied when a defendant seeks to withdraw their plea, depending on whether the plea was entered before or after conviction. Where the plea is entered before conviction and sentence, the test is an ‘i
Rex v Taylor [2022] NSWCCA 256
In this decision the CCA has held that there is no rule of law which concludes that in all cases involving a mandatory minimum it is a precondition, in order to obtain that minimum sentence, for a sentencing judge to conclude that the sentence is at the bottom of the range of objective seriousness.
Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211
In this case the Court of Appeal has, in the course of dispatching a constitutional challenge to the committal regime, provided useful insights into aspects of the committal process. In particular, the Court has made observations about when and for what purpose witnesses can still be called, and pro
Masters v R [2022] NSWCCA 228
In this decision the Court of Criminal Appeal has examined the level of capacity required in order to establish the mental illness defence. Although it was considered in the context of now-repealed legislation, it considers the test under the current Act as well, and concludes in part that there is
Baker v R [2022] NSWCCA 195
In this decision the CCA has considered how threats can be taken into account as an aggravating factor on sentencing. By majority, the Court has held that a statement can constitute a threat even if it is not explicit, and even if it does not include the time-honoured words ‘or else’, so long as the
Wornes v R [2022] NSWCCA 184
The Court of Criminal Appeal (‘CCA’) has held that there is no rule of law that personality disorders cannot be used to mitigate an offender’s sentence. Each case turns on its facts, but at least where the personality disorder leads to distorted views of personal relationships or impairs emotional r
Director of Public Prosecutions (NSW) v van Gestal [2022] NSWCCA 171
In this decision the CCA has settled – at least for the time being – the level of satisfaction which is implied by s 22B of the Bail Act, which provides that convicted defendants are ordinarily to be refused bail following conviction (other than special or exceptional circumstances) if they ‘will be
R v Perrin [2022] NSWCCA 170
In this decision the Court of Criminal Appeal (‘CCA’) has determined that, for the purposes of the 5-year Local Court jurisdictional sentencing limit in s 58 of the Crimes (Sentencing Procedure) Act, the question of whether there is an ‘existing sentence’ is to be addressed as at the day on which se
Hraichie v R [2022] NSWCCA 155
When an offender commits an offence whilst already in custody, the law provides that in certain circumstances, the sentence for the fresh offence should be completely accumulated on the original sentence. In this decision, the Court of Criminal Appeal (‘CCA’) has held that if an offender is bail ref
Ahmad v R [2022] NSWCCA 144
When an offender is on parole, but parole is revoked and a warrant issued, an offence committed whilst the offender is still at large is not committed whilst on ‘conditional liberty’. But in this decision the CCA has pointed out that if the Parole Authority backdates the revocation, that doesn’t ret
R v Boyd [2022] NSWCCA 120
Sentencing courts normally aren’t allowed to take into account self-induced intoxication in mitigation of a sentence; the sentencing legislation prohibits it. But in this decision, the Court of Criminal Appeal (‘CCA’) has identified that there may be circumstances – most notably, where there is drug
Young (a pseudonym) v R [2022] NSWCCA 111
In this decision, the CCA has held that where a sentence has been delayed, it is permissible to take into account in mitigation not only the fact that the sentencing options have changed since the offences, but also (perhaps curiously) the very fact that the offender has been disadvantaged because t
Haile v R [2022] NSWCCA 71
The CCA has in this case reenforced the need for a Liberato direction in word-on-word cases, and sounded a caution about any suggestion that such cases involve a ‘choice’ between versions.
R v Obbens [2022] NSWCCA 109
In this judgment the Court of Criminal Appeal (‘CCA’) has said that the focus when sentencing an offender for fresh sentences which overlap a stale sentence imposed some time ago, the focus is on the totality of the sentence at the time it is imposed. In other words, the question is what the appropr