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Devitt v Ross [2018] NSWSC 1675
It is not uncommon for defendants to lodge District Court appeals completely out of time – that is, even after the three month period where they can still seek leave to appeal. However, what should happen when a District Court appeal is out of time, and a Supreme Court appeal is also lodged in an at
Robinson v State of New South Wales [2018] NSWCA 231
In this decision (which, admittedly, deals with the tort of wrongful arrest), the Court of Appeal has determined that an arrest is only lawful if it is exercised for the purpose of commencing criminal proceedings. It is not a legal exercise of the power to arrest a person in order to investigate whe
Fang v R [2018] NSWCCA 210
The CCA has unanimously held that, at least on the evidence in this case, a drug-induced psychosis may not, on its own, meet the common law test for the defence of mental illness – although the Court also appears to have left the door open to reconsider the issue in a case where there is appropriate
Reddy v R [2018] NSWCCA 212
In this case the Court of Criminal Appeal (‘CCA’) has confirmed that it is not a precondition of giving a defendant credit for time in residential rehabilitation that they were compelled to be there. The real question is whether they did in fact subject themselves to the restrictions of the course.
Bandao v R; Bruce v R [2018] NSWCCA 181
In an era where everybody has a mobile recording device immediately to hand, what happens if material comes to light which might be relevant to a defence, but might also have been recorded illegally? In this decision of the Court of Criminal Appeal, the court has set out a step-by-step process which
Director of Public Prosecutions (NSW) v Kmetyk [2018] NSWCA 156
This twin pair of appellate judgments significantly alters the previously-accepted state of affairs in relation to stays of disqualifications pending an appeal. The Court of Appeal has (twice) provided an interpretation of legislation which means that an appellant who lodges a severity appeal will n
Baradi v R [2018] NSWCCA 143
The Court of Criminal Appeal (‘CCA’) has considered the question of just how little control is required for the purpose of detaining a person for advantage, and has determined that, at least in this given scenario, it will be enough to say ‘come on, get up.
Noufl v Director of Public Prosecutions (NSW) [2018] NSWSC 1238
The Supreme Court has determined that a single judge cannot hear a bail application for a person sentenced in the District Court unless the applicant has first been refused bail in the District Court.
Gould v Director of Public Prosecutions (Cth) [2018] NSWCCA 209
The CCA has confirmed that the there is no power to go behind Telecommunication Interception warrants; challenges are limited to issues on the face of the warrant which would render it invalid.
R v Busby [2018] NSWCCA 136
In a decision that has potentially wide-reaching ramifications for drug supply matters, the Court of Criminal Appeal (‘CCA’) has found that the relevant quantity level for a prohibited drug (‘small’, ‘traffickable’, ‘indictable’, ‘commercial’, ‘large commercial’) must be for the drug that the accuse
Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811
A judge of the Supreme Court has held that police do not need to suspect that a person who is the subject of a Firearms Prohibition Order has a firearm before exercising a related power to search them.
Rohan v R [2018] NSWCCA 89
The Court of Criminal Appeal has considered the restrictions relating to issuing subpoenas in sexual assault proceedings. After observing that some previous authority might be questionable, they examined the intersection between ‘substantial probative value’ and the warnings juries receive in sexual
Alesbhi v R; Esbhi v R [2018] NSWCCA 30
The CCA has held that for an offence to be aggravated by the presence of a child requires the court to be satisfied, beyond reasonable doubt, that the child was physically present and aware of the offence. The extent of aggravation, if any, requires an assessment of the likelihood of the effect the
Odisho v R [2018] NSWCCA 19
The Court of Criminal Appeal (‘CCA’) has examined applications for leave to cross examine one’s own witnesses under s38. The core principle seems to be that grants of leave will be strictly interpreted, and if there is any possibility that cross examination will stray into territory which is only ab
Campbell v R [2018] NSWCCA 17
Have you ever wondered whether, when a judicial officer makes a mistake while handing down an ex tempore judgment, you should interrupt them to tell them? The Court of Criminal Appeal (‘CCA’) has provided the answer: at least where the misstatement is about the maximum penalty, you should interrupt,
Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754
In the course of confirming that the offence of driving under the influence of drugs or alcohol does not require that the prosecution prove that the drugs or alcohol affected the accused’s manner of driving, the Supreme Court has also considered the procedure in relation to ‘no case to answer’ submi
Xiao v R [2018] NSWCCA 4
Overturning a NSW authority which has stood for more than a decade, the Court of Criminal Appeal (‘CCA’) has determined that when sentencing for Commonwealth matters, it is permissible to take into account the utilitarian value of a plea of guilty.
R v Hall [2017] NSWCCA 313
In this decision the CCA has re-endorsed a rule of thumb to the effect that, even with a finding of special circumstances, non-parole periods should not usually be set as low as 20% of the overall sentence.
Parente v R [2017] NSWCCA 284
This full-bench decision of the Court of Criminal Appeal (‘CCA’), which follows a recent line of cases previously reported in these pages, finally overturns the so-called ‘principle’ or ‘rule’ which meant that involvement in trafficking of drugs to a substantial degree must lead to fulltime custody