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Eakin v R [2020] NSWCCA 294
In this decision the CCA has held that where a sentencing judge sets up a parity relationship between offenders, and a co-offender subsequently gets their sentence reduced, then that might give rise to a justifiable sense of grievance – even if you already had a lower sentence – allowing an appeal t
R v Riley [2020] NSWCCA 283
In this decision the Court of Criminal Appeal (‘CCA’) has considered a case where illegally-obtained evidence was rejected by a trial judge. In making the determination, they held that the probative value of the evidence must be taken at its highest, excluding (in all but the most extreme circumstan
Saffin v R [2020] NSWCCA 246
Despite being a sentence appeal, this decision sheds some light on how the law of consent works in the context of sex offences. After reiterating that a sentencing judge is not obliged to accept the defence version on sentence just because they do not accept the prosecution version, the Court went o
Jackson v R [2020] NSWCCA 230
In this decision the Court of Criminal Appeal (‘CCA’) has pointed out that although advanced age can be relevant in many ways, it does not follow that elderly offenders are necessarily entitled to a lower sentence.
R v Stonestreet [2020] NSWCCA 212
The last several years have seen an increase in the focus on reduced ‘moral culpability’ as a result of mental illness as a mitigating factor on sentence. However, in this appeal, the CCA has reminded us that in some cases there is a flip side: sometimes, mental illness will indicate an increased ne
SB v R [2020] NSWCCA 207
In this decision the Court of Criminal Appeal (‘CCA’) has held that evidence of complaint is not ‘independent’ of the complainant. To the extent that the Criminal Trials Bench Book had a recommended direction to that effect, it was wrong.
WX v R [2020] NSWCCA 142
In this decision the CCA has carefully analysed the legislation allowing a complainant to be recalled under certain circumstances, notwithstanding legislation providing a presumption that they will not be recalled. The test, the CCA observed, is not whether there was a miscarriage of justice occasio
Curran v R [2020] NSWCCA 171
In this decision the Court of Criminal Appeal (‘CCA’) has harshly criticised comments made by a prosecutor which suggested the accused had a motive to lie in order to be acquitted, and a comment that he might have a broader tendency than that actually pleaded in the tendency notice.
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
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
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
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