Public Defenders

Court of Criminal Appeal Update : Review of 2011


Chrissa Loukas,
Barrister, Public Defenders Chambers

NSW Bar Association Conference, Sydney
March 2012


Chrissa Loukas thanks Ms Prita Supomo and Ms Jennifer Wheeler, Research Lawyers, Public Defenders Chambers, for their invaluable assistance in the preparation of this Paper.


Sentence Appeal Cases

1. Standard Non-Parole Period
2. Aggravating Factors
3. Mitigating Factors
4. Comparative cases and Statistics
5. Discount for Guilty Plea
6. Sentencing for Old Offences
7. Procedural Fairness
8. Commencement of Sentence
9. Special Circumstances
10. Drug Offences
11. Firearm Offences
12. Sexual Assault Offence
13. Other Sentencing Cases

Conviction Appeals and Other Cases
1. Duty of disclosure by police: Lipton [2011] NSWCCA 247
2. Screening witnesses: BUSB v Director-General of Security [2011] NSWCCA 39
3. Majority verdicts: Ingham [2011] NSWCCA 88; Hunt [2011] NSWCCA 152
4. Evidence Act s 20(3): DJF [2011] NSWCCA 6
5. Evidence Act s79 Expert evidence: Chen [20110 NSWCCA 145; Morgan [2011] NSWCCA 257
6. Evidence Act 137: Chand [2011] NSWCCA 53
7. Failure to leave Carey defence to jury in drug supply: Alliston [2011] NSWCCA 281
8. Criminal Procedure Act s 281 Admissions: Bryant [2011] NSWCCA 26
9. Directions ‘Recklessly cause GBH’: Blackwell [2011] NSWCCA 93
10. Judicial questioning in judge alone trial: FB [2011] NSWCCA 217
11.. Manslaughter – liability of drug suppliers: Burns [2011] NSWCCA 56
12. Environmental law cases
Annexures / Appendix
A. High Court Cases
B. Legislation 2011
C. Supreme Court Cases
D. STOP PRESS: 2012 – The Story So Far.


This paper reviews some of the significant Court of Criminal Appeal sentence and conviction appeal judgments through 2011. Annexed are summaries of 2011 High Court cases along with recent criminal legislation and highlights for 2012 as at early March 2012.

The High Court decision of Muldrock v The Queen [2011] HCA 39; (2011) 281 ALR 652 was of critical importance in the area of sentencing in NSW in 2011. The High Court ruling underlined that the NSW Court of Criminal Appeal had for the better part of a decade adopted an overly prescriptive approach to the standard non-parole period legislation.

At this point in 2012 three decisions are of particular note - the first being Wood [2012] NSWCCA 21 on the duties of prosecutors and expert witnesses; the second, DSJ; NS [2012] NSWCCA 9 on the issue of coincidence evidence; and the third JB [2012] NSWCCA 12 on the admissibility of admissions to support persons.




Muldrock v The Queen [2011] HCA 39; (2011) 281 ALR 652

The High Court in Muldrock v The Queen [2011] HCA 39; (2011) 281 ALR 652 held that Way (2004) 60 NSWLR, the leading case on SNPPs, was wrongly decided. The SNPP does not have determinative significance in sentencing: at [32].

Section 54B(2) Crimes (Sentencing Procedure) Act provides that “the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter …”

The High Court held:-

. “… it was an error [in R v Way] to characterise s 54B(2) as framed in mandatory terms. The court is not required when sentencing for a Div 1A offence to commence by asking whether there are reasons for not imposing the standard non-parole period nor to proceed to an assessment of whether the offence is within the midrange of objective seriousness.”: at [25].

. “It is a mistake to give primary, let alone determinative, significance to so much of s 54B(2) as appears before the word ‘unless’.”: at [26].

. The Court is not to engage in a two-stage approach commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with a hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period: at [28]

The High Court outlined the approach to sentencing for a SNPP offence:

. Fixing of the non-parole period is one part of the larger task of passing an appropriate sentence and is not to be treated as if it were the necessary starting point or the only important end-point in framing a sentence: at [17].

. Section 54B requires an approach to sentencing for Div 1A offences that is consistent with Markarian v The Queen (2005) 228 CLR 357 at [51] per McHugh J:
"[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." (emphasis added) at [26]
. Under s 54B(2) and (3) the Court must take into account the full range of factors, mindful of the maximum sentence and the SNPP. The assessment of the middle of the range of objective seriousness for a SNPP offence is to be assessed wholly by reference to the nature of the offending, without reference to matters personal to a particular offender or class of offenders: at [27].

. By s 54B(4), a judge must identify the facts, matters and circumstances which bear upon sentence. The obligation applies for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling within low, middle or high range of objective seriousness: at [29].

The High Court observed that it is likely some NPPs will increase as a result of these provisions not because the SNPP is the starting point in sentencing for a midrange offence after conviction but because the SNPP is a factor to be considered in the determination of the appropriate sentence: at [31]

Application of Muldrock by the CCA

In MDZ [2011] NSWCCA 243 at [27]-[38] the CCA said that an assertion that a judge failed to determine the extent to which the objective seriousness of the offence fell below the mid-range is no longer viable as a ground of appeal.

In Beveridge [2011] NSWCCA 249 the appellant argued that the sentencing judge’s finding that the offence fell below mid-range of seriousness did not comply with Way. The CCA said that the whole basis on which this ground of appeal was founded has been undermined by Muldrock. There is no suggestion in Muldrock that a sentencing judge is required to specify with precision the degree to which the objective seriousness of a particular offence departs from the objective seriousness of a notional mid-range offence: at [18].

In Madden [2011] NSWCCA 254 Simpson J (Whealy JA and Hislop J agreeing) found the sentencing judge had given considerable emphasis to the SNPP in accordance with Way (as required to do so prior to Muldrock). While it was not necessary to fix the offence on a scale of objective seriousness, that the sentencing judge did so did not deflect the judge onto an erroneous course. Per Simspon J:

“[34] In my opinion, however, the preponderance of the Remarks indicate that he gave considerable emphasis to the standard non-parole period, particularly in rejecting the submission of the applicant's solicitor that a period of imprisonment of about one year would sufficiently acknowledge the applicant's criminality. (With or without the foundation of the standard non-parole period, that finding was perfectly correct.)

[35] It remains the case, even post- Muldrock , that a sentencing judge is to be "mindful" of both the maximum sentence for which provision is made, and the standard non-parole period as "legislative guideposts": ( Muldrock , at [27]). However, the standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction (at [56]); even less is the standard non-parole period the starting point for sentence after a plea of guilty.

[36] Although I have considered it necessary, in fairness to the applicant, to raise the Muldrock issue, I have concluded that no error of the kind exposed in that judgment has been disclosed. While it was not necessary (Muldrock, [25]) to fix the offence on a scale of objective seriousness that his Honour did so (in accordance with the law as it was understood at the time of sentencing) did not deflect the judge onto an erroneous course. “

In Koloamatangi [2011] NSWCCA 288 the CCA said that the SNPPs found in the Crimes (Sentencing Procedure) Act 1999 cannot have determinative significance but the sentencing judge needs to bear it in mind as a “marker”, whether or not there are reasons why it should not be applied: at [19]- [21] applying Muldrock; Carlton [2008] NSWCCA 2. Per Basten JA (Adams and Johnson JJ agreeing) referring to Muldrock:

“[19] What remains in doubt, however, is whether the sentencing court is required or permitted to classify, or prohibited from classifying, the particular offence by reference to a low, middle or high range of objective seriousness. The statements at [25] and [29] indicate that the sentencing judge is not required to undertake such an assessment or classification. The statement at [28] indicates that it would be wrong to adopt a two-stage approach which commenced with such an assessment and then sought reasons for departure. On the other hand, to treat the standard non-parole period as a guidepost requires that the phrase "the middle of the range of objective seriousness" must be given content: see [27]. Further, the Court recognised the need for a sentencing judge to maintain "awareness" of the standard non-parole period as an additional consideration bearing on the appropriate sentence: at [31]. That exercise must include reference to the statutory context for its consideration. Nor did the Court suggest that a conventional assessment of the objective offending, according to a scale of seriousness, was to be eschewed. The diminished role accorded the standard non-parole period is, in effect, a function of the fact that it involves an hypothetical offence, ascertained by reference to a limited range of considerations. In Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 at [90], I noted that, whilst s 54A refers to "the range" of objective seriousness:
" The statutory language does not require the determination of a low range, a middle range and a high range of seriousness: it envisages a single range and an offence in the middle of the range. ... As a practical matter, it must be accepted that the middle of a range of seriousness is not a precise point, nor is there any paradigm by which it can be identified. This follows almost inevitably from the scope and variety of circumstances which can be relevant to considering seriousness."
[20]Further, I suggested at [88] in Carlton that while the standard non-parole period is said to "represent" the non-parole period for an offence in the middle of the range of objective seriousness, the term "represents" is a curious one:
"Section 54A(2) does not say that the standard non-parole period is that which 'should be' set for an offence in the middle of the range of objective seriousness. That the legislature eschewed such language may reflect the fact that a non-parole period is not determined solely by reference to an assessment of the objective seriousness of the offence; the exercise also takes into account subjective factors specific to the offender, but not relevant to the seriousness of the offence."
[21]These comments do not appear to be inconsistent with the remarks in Muldrock . One consequence of Muldrock is that a sentencing judge will need to bear the standard non-parole period in mind as a marker, whether or not there are reasons why it should not be applied. One reason for non-application is a plea of guilty entitling the offender to a discount, although that is not a factor relevant to the objective seriousness of the offence, in the terms identified in Muldrock . More importantly, the standard non-parole period cannot have "determinative significance" - see Muldrock at [32] - nor even, as the Court also noted, much weight at all in circumstances such as those which arose in Muldrock itself. “

In Sheen [2011] NSW CCA 259 (Break and enter with intent to do GBH in circumstances of special aggravation s112(3) Crimes Act) Johnson J (Hall and Price JJ agreeing) said:

‘[169] It remains necessary, of course, to have regard to the objective gravity of the offence contained in the fourth count, together with all relevant subjective factors and other sentencing principles which bear upon the imposition of sentence in this case: Muldrock v The Queen at 1162 [26]. The maximum penalty and standard non-parole period are "legislative guideposts" to be borne in mind when considering the appropriate penalty, having regard to the objective circumstances of the offence and the subjective features of the Appellant: Muldrock v The Queen at 1162-1163 [27]-[31].

(Johnson J then assessed the objective gravity: at [170]-[172])

[173] To the extent that an opinion concerning the objective seriousness of the Appellant's crime should be expressed to allow the standard non-parole period to have some practical utility as a "legislative guidepost" , I consider that this offence lay within the middle of the range of objective seriousness. “

(Johnson J went on to consider the Appellant's subjective circumstances, then proceeded to pass sentence: at [174]-[176]).

See also RR [2011] NSW CCA 235 per Johnson J at [131]-[132]; Aoun [2011] NSWCCA 284 at [72].

In Foster [2011] NSWCCA 285 Adams J made the following observations. (There was no argument on the application of Muldrock before the Court and for this reason Hoeben J was not prepared to endorse Adams J’s conclusion. McClellan CJ at CL did not refer to the matter in agreeing with Hoeben J).
“[31] It seems to me that Muldrock establishes that the ordinary, longstanding method of setting sentences and, where appropriate, non-parole periods that applies to offences without standard non-parole periods, is now to be understood as entirely applicable to offences for which standard non-parole periods are prescribed, with the additional feature in the latter class of case that the court must bear in mind as guideposts not only the maximum sentence but also the standard non-parole period as statutory indications of the gravity of an offence . This does not entail the need to hypothesise possible conduct that might be so characterised but requires advertence to and consideration of the objective circumstances of the case in order to utilise the standard non-parole period as a guidepost.
[32] In Biddle [2011] NSWSC 1262, Garling J summarised the effect of Muldrock in the following way -
[23] In considering the imposition of a sentence under s 54B, the following considerations are appropriate:
(a) The effect of the s 54B(2), despite its apparently mandatory terms, is to preserve the full scope of judicial discretion to impose a non-parole period longer or shorter than a standard non-parole period: Muldrock at [25];
(b) When read with s 21A, s 54B requires an approach to sentencing which is consistent with the judgment of McHugh J in Markarian (2005) 228 CLR 357 at [51]: Muldrock at [26];
(c) In considering all factors relevant to sentencing the Court must keep in mind the two legislative guideposts: the maximum sentence and the standard non-parole period: Muldrock at [27];
(d) In giving content in a specific case to the statutory phrase "... an offence in the middle of the range of objective seriousness ...", the assessment is made without reference to matters personal to an offender or class of offenders, and is made by reference wholly to the nature of the offending: Muldrock at [27];
(e) The standard non-parole period is not the starting point in sentencing for a mid-range offence after conviction: Muldrock at [31], nor does it have determinative significance in sentencing an offender: Muldrock at [32]. "
[33] If I may respectfully say so, I would agree with this summary of the position (so far as it goes) but, for the reasons I have given, subject to the (I think significant) qualification as to what is meant by the phrase "nature of the offending" in paragraph (d). “

Supreme Court judgments referring to Muldrock in murder sentence cases include: Ryan [2011] NSWSC 1249 at [2] per Latham J; Martin [2011] NSWSC 1189 at [27] per Kirby J; Biddle [2011] NSWSC 1262 (Garling J); Tran [2011] NSWSC 1480 (Rothman J); McKenzie [2011] NSWSC 1460 (Schmidt J).

Circumstances personal to the offender causally related to the offence (such as mental health and intoxication) are relevant to assessment of objective seriousness

In MDZ [2011] NSWCCA 243 (above) the Court said mental health and intoxication are relevant to an assessment of objective seriousness. The applicant was sentenced for aggravated sexual intercourse without consent (s 61J Crimes Act - SNPP 10 years). The applicant had mental health problems and submitted the sentencing judge failed to take into account his "state of mind and capacity to reason" in considering objective seriousness. Muldrock was delivered consequent to the submissions in this case being lodged: at [34]. Allowing the appeal, the Court said that as held by Muldrock, sentencing for Division 1A offences requires an approach consistent with Markarian (2005) 228 CLR 357 per McHugh J. The judge must identify all factors relevant to sentence, discuss their significance and then make a value judgment as to appropriate sentence given all factors of the case. Per Hall J (Tobias AJA and Johnson J agreeing):

“[67] In my opinion, in light of the High Court's judgment in Muldrock [2011] HCA 39, it is open to conclude that the mental condition of the applicant at the time of the offence may bear upon the objective seriousness of the offences: Muldrock (supra) at [27] and [29].. Certainly, in the present case, the sentencing judge, on the evidence, was required to expressly determine the moral culpability of the applicant in assessing the seriousness of the offences and in determining the appropriate sentences to be imposed in relation to them. In this case, the evidence required a finding that the applicant's moral culpability was reduced by his mental health issues."
It was an error to assess objective seriousness "by reference to the physical aspects of the offending" and to consider the mental health problems as subjective features but not considered in the context of the objective seriousness of the offences: at [66], [69]. The Crown conceded a causal link between the applicant's mental condition and the commission of the offence and this was a matter relevant to assessing objective seriousness. Regard should be made to the applicant's borderline personality disorder, drug addiction, low intellect and drug intoxication : at [74]-[75].

In Ayshow [2011] NSWCCA 240 Johnson J (Bathurst CJ and James J agreeing) said that, “To the extent that a question arises whether the Applicant's mental state at the time of the offence may bear upon objective seriousness (Muldrock at 1162-1163 [27], 1163 [29]), it remains a relevant factor on sentence in an assessment of moral culpability. Accordingly, if there is evidence to support a finding that an offender's moral culpability is reduced by a relevant mental condition, the offender is entitled to have it called in aid on sentence.”: at [39].

Recently in Cotterill [2012] NSWSC 89 (involving murder) McCallum J said:

“[29] I have regard to the fact that, in accordance with the statute, twenty years is the non-parole period for an offence of murder in the middle of the range of objective seriousness. As recently explained by the High Court, the guidance afforded by that statutory fact is informed only by reference to the nature of the offending, without reference to matters personal to the offender: Muldrock v R [2011] HCA 39 at [27]. The offence in the middle of the range is hypothetical and does not comprehend the range of factors relevant to sentencing in the individual case before the Court: at [31]. Accordingly, contrary to a line of appellate authority preceding the decision in Muldrock , the Court is not required to assess whether the individual offence under consideration is within the mid-range of objective seriousness: see Muldrock at [25] and [29].

[30] It nonetheless remains an important aspect of the sentencing task to assess the objective seriousness of the offence, which may include consideration of circumstances personal to the offender that are causally connected to the commission of the offence. I do not understand the decision of the High Court in Muldrock to hold otherwise. “


Where disconformity between the NPP and head sentence raises question whether head sentence is excessive

In Fajloun [2011] NSWCCA 41 the Court found that disconformity between the non parole period and the head sentence raised the question whether the head sentence was excessive. The applicant was sentenced for ‘aggravated breaking and entering and commit serious indictable offence (kidnapping)’, which carries a maximum penalty of 20 years and a SNPP of 5 years. The judge imposed a sentence of 12 years imprisonment with a NPP of 6 years. The Court in a joint judgment found the sentence was excessive and allowed the appeal:

“[38] ….. The disconformity between the non-parole period of 6 years and the head sentence of 12 years, even taking into account the finding of special circumstances, raises the question whether the head sentence was excessive. The difference between the non-parole period and head sentence may have been brought about by the disconformity between a 20 year maximum sentence and a five year standard non-parole period for the offence under the Crimes Act, s 112(2). Given the types of offences capable of falling within the expression "serious indictable offence", and considering the kidnapping here, the head sentence of 12 years was, in our view, clearly excessive.

[39] Leaving aside subjective and special circumstances, the non-parole period was reflective of his Honour's legitimate evaluative conclusion that the offence in count 1 was in "the upper echelons of the middle range of objective seriousness". However, the terms in which his Honour expressed his findings of special circumstances must logically have led to a reduction in the non-parole period from what it would otherwise have been. Raad's subjective circumstances should also have done so, even if the reduction on account of them had been small. But for these factors, we would find no fault with the six year non-parole period. Once they are taken into account, however, the six years does not seem to reflect properly his Honour's reasons and is too high. We would impose a five year non-parole period. “


2. AGGRAVATING FACTORS (s 21A(2) Crimes (Sentencing Procedure) Act 1999)

s 21A(e) Vulnerability of victim

In Ollis [2011] NSWCCA 155 the offender sexually assaulted a 17 year old Japanese student who had poor English. The applicant submitted that the judge had erred in finding the victim was vulnerable given that s 21A(2)(l) states: [if] “… the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)”. However, the Court found the judge was correct. Per Johnson J:

“[96] As the terms of s 21A(2)(e) make clear, the provision does not purport to be an exhaustive list of circumstances of vulnerability for the purpose of sentence: Perrin v R [2006] NSWCCA 64 at [35]. A combination of factors may operate, in a particular case, to render a victim vulnerable for the purposes of sentence. The fact that the complainant in this case was 17 years of age and not, in that sense, “very young” does not mean that she cannot be a vulnerable victim.

[97] With respect, his Honour’s analysis of the victim’s vulnerability was both open and correct. She was a 17-year old girl from a foreign country who had come to Australia for the purpose of study. She was travelling alone on public transport. The Appellant, who could speak some Japanese, approached her in a manner which gave the appearance of friendship and assistance. Travelling on a public transport system in a foreign land, the adolescent victim no doubt felt somewhat at ease with the Appellant and trusted him. In this context, he sexually assaulted her. To my mind, the characterisation of the complainant as a vulnerable victim was entirely appropriate.”


s 21A(2)(eb) ‘offence committed in home of victim’ aggravating factor does not apply where offender is lawfully on premises

In Ingham [2011] NSWCCA 23 the applicant committed sexual assault offences upon two child complainants in their home. The applicant was staying with the family of the victims on the weekends. The CCA agreed that it was an error to find under s 21A(2)(eb) that the offence was aggravated by the offence being committed in the victims’ home. There is a clear line of authority that s 21A(2)(eb) CPSA does not operate to aggravate an offence where the offender is lawfully on the premises. The CCA referred to Comert [2004] NSWCCA 125 where it was held that where a husband had assaulted his wife it was not further aggravated by the fact that the assault was committed in the matrimonial home: see also per Dunford J in Preston (unreported, 9 April 1997, NSWCCA). It will be an aggravating circumstance when a victim is assaulted in their own home by an unauthorised intruder. However, it is otherwise when the offender is lawfully on the premises. See also BIP [2011] NSWCCA 224.

s 21A(2)(h) Racial motivation

In Holloway [2011] NSWCCA 23 the applicant was sentenced for assault offences. While following the victims, the applicant and two co-offenders swore and called out “f….. black c....” and “black bastard”. The sentencing judge found the offences to be in the mid-range of objective seriousness and “racially motivated.” Dismissing the applicant’s sentence appeal, the CCA said that in a multicultural society racial violence should be strongly deterred and taken into account on sentence: CSPA s21A(2)(h) which states that it is an aggravating feature if an offence is “motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)”. The injuries were not substantial, however, the assault was unprovoked and vicious, and together with the racial motivation made the offences serious.

s 21A(2)(k) Breach of trust

In MRW [2011] NSWCCA 260 the applicant was convicted of sexual intercourse with a a person between 10 and 16 years under authority (s 66C(2) Crimes Act). The victim was his daughter. The applicant argued it was an error to find there was an aggravating factor of ‘breach of trust’ under s 21A(2)(k) separate to the “authority” element in s 66C(2); and this constituted double-counting contrary to s 21A(2). The CCA dismissed the appeal, finding that ‘abuse of trust’ and ‘authority’ are distinct concepts: at [77]-[78].

s 21A(2)(i) ‘Failure to have regard to public safety’ – drug offences

In Mansour [2011] NSWCCA 28; (2011) 209 A Crim R 275 the applicant was sentenced for ‘ongoing drug supply’ under s 25A Drug Misuse & Trafficking Act. The sentencing judge took into account as an aggravating factor that the offence was committed without regard for public safety under 21A(2)(i) CSPA. This was an error. Where a factor is an element of an offence it should not be taken into account as an aggravating factor under s21A(2) unless its nature or extent in the particular case is unusual or "exceeds the norm”: Mansour at [51]; Elyard [2006] NSWCCA 43; Yildiz (2006) 160 A Crim R 218. A failure to have regard for public safety is not an element of the offence of ongoing drug supply. But the offence is of a kind that reflects a policy of prohibiting conduct which disregards public safety. Thus failure to have regard to public safety is an inherent characteristic of this offence and should not have been taken into account.. There was nothing about this offence which suggested its nature or extent went beyond what ordinarily might be expected: at [47]-[51].

Similarly, in Ta & Nguyen [2011] NSWCCA 32 the applicants were sentenced for ‘knowingly taking part in the cultivation of a large commercial quantity of cannabis by enhanced indoor means’. The sentencing judge took into account as aggravating factors under s 21A(2) that the offence was committed in company, that it had little regard for public safety, and that it was part of planned and organised criminal activity. However, as these were matters inherent to the offence and not present to any unusual extent, it was an error to take them into account.

Sexual offences - Error to take into account as aggravating factor that offences were "committed for the offender's own sexual gratification."

In Ingham [2011] NSWCCA 23 the Court said at [113] that it was an error to find the child sexual assault offences aggravated by the fact they were "committed for the offender's own sexual gratification." It was inherent in the offence that it would be carried out for the purpose of the sexual gratification of the perpetrator.


3. MITIGATING FACTORS (s 21A(3) Crimes (Sentencing Procedure) Act 1999)

s 21A(3)(d) Duress

In Tiknius [2011] NSWCCA 215 the applicant said he committed drug importation offences as a result of Z supplying him free cocaine until he became dependent, then Z demanding repayment by threatening to hurt the applicant’s girlfriend. The sentencing judge found the applicant had acted due to significant pressure falling short of the defence of duress. However, the CCA said that the sentences imposed did not give adequate weight to the judge’s findings. Allowing the appeal, Johnson J (Tobias AJA and Hall J agreeing) made the following observations:

. Where an offender commits a crime when acting under duress which falls short of the complete defence, that ‘non-exculpatory’ duress may be mitigating factor on sentence. The onus is on the offender to establish the facts which are said to operate to mitigate penalty: Olbrich (1999) 199 CLR 270 at 281: at [32].

. In NSW a mitigating factor arises where "the offender was acting under duress : s.21A(3)(d) Crimes (Sentencing Procedure) Act 1999 ; Razzak (2006) 166 A Crim R 132 at 147; Le [2007] NSWCCA at [6]. For Commonwealth offences, the test for duress is contained in s.10.2 Criminal Code (Cth) : Oblach (2005) 65 NSWLR 75. Duress in not referred to in s.16A Crimes Act 1914 (Cth) as a factor to be taken into account on sentence for a Commonwealth offence. But a Court must impose a sentence that is appropriate in all the circumstances: s.16A(1); and must take into account the nature and circumstances:(s.16A(2)(a): at [33]-[36].

. After trial, non-exculpatory duress as a mitigating factor may arise where duress has been a trial issue. The judge must make factual findings as part of an assessment whether this factor assists the offender. If the jury has rejected the defence of duress this does not mean that threats or other conduct falling short of the defence cannot be taken into account on sentence: Oblach at [69]-[70]: at [37].

. After a judge alone trial, the findings made which led to the rejection of the defence of duress may assist a determination of the relevance of non-exculpatory duress on sentence: Lorenz (1998) 146 FLR 369 at 377: at [38].

. There are two reasons why non-exculpatory duress may be taken into account as a mitigating factor. First, it may affect the degree of the offender’s subjective or moral culpability. Second, it may affect their prospects of rehabilitation in that once the fear has been removed the offender is unlikely to offend again: at [41] citing Day [2009] SASC 84 per Sulan J at [35].

. The fact an offence is committed due to threats and fear rather than profit or greed is relevant to objective gravity. Such matters are relevant to the moral or true culpability of an offender: Z (2005) 2 AC 467 at [22]. But, courts are entitled to consider such claims with a significant degree of circumspection. This is because claims may be easily made concerning the alleged conduct of persons in another country: Anna Le [2006] NSWCCA 136 at [32]: at [45].

. Where duress is a mitigating factor, the Court will determine the weight to be accorded to that factor. Considerations will include the form and duration of the criminal conduct, the nature of the threats and opportunities to report the matter to authorities, and general deterrence: at [49]-[51].

In this case, the judge did not assess the impact of duress upon objective gravity and moral culpability: at [60]. The mitigating value of the duress was reduced by the opportunities available to report the matter to authorities and not revealing the identities of those who made the threats: at [65]-[66], [69]-[72].

But the CCA said that the judge should have given a significant reduction as to the applicant's moral culpability and, in the unusual circumstances of the case, the objective seriousness of the offences: at [75].

The CCA (at [48]) also referred to other drug importation cases where duress was a factor on sentence: Tapasa (NSWCCA, 31 October 1997, unreported); N (1999) 106 A Crim R 493; Oblach at 86 [69]-[70]; Liu [2005] NSWCCA 378; Stankovic [2006] NSWCCA 229; Huynh [2008] NSWCCA 16.

Remorse (see s 21A(3)(i) CSPA)

In Alvares [2011] NSW CCA 33; (2011) 209 A Crim R 297 the CCA gives a detailed discussion of cases dealing with remorse and what type of evidence provides evidence of remorse. The Court said there is no authority for the proposition an offender will only be entitled to a finding of remorse where s/he gives sworn evidence. This is because an offender may demonstrate remorse by words or conduct without giving sworn evidence. For example, during a confession, by voluntary disclosure, by financial reparation, or by post-ameliorative conduct such as calling the police or ambulance to the crime scene: at [66]-[67].

In Sun [2011] NSWCCA 99 the judge erred in finding that the applicant had not expressed any remorse. In fact, the applicant had expressed remorse to the Probation and Parole Service, to a psychiatrist and in a letter to the Court: at [29]. Upholding the appeal, Campbell JA (RS Hulme and Adams JJ agreeing) said:

“[31] There is ample authority that the sentencing judge can be cautious about the weight that he or she places upon an offender's unverified statement of remorse when no direct evidence of remorse is placed before the court. Caution is appropriate whether the statement is made to a psychiatrist or psychologist (eg R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 per Smart AJ at [58]-[59], Spigelman CJ at [79]; R v McGourty [2002] NSWCCA 335 at [24]-[25] per Wood CJ at CL), to an officer preparing a presentence report ( R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [40]-[41] per Howie J (Levine and Hidden JJ agreeing), TS v R [2007] NSWCCA 194 at [30] per Giles JA (James and Hislop JJ agreeing)), or in a letter from the offender to the sentencing judge ( R v Elfar [2003] NSWCCA 358 at [25] per Whealy J (Ipp JA and Davidson AJ agreeing)). As McClelland CJ at CL pointed out in Pfitzner v R [2010] NSWCCA 314 at [33] such out-of-court statements are made in circumstances where they are unlikely to be challenged, and when an offender does not give viva voce evidence the judge does not have the assistance of demeanour in evaluating the correctness of asserted remorse. Further, as Buddin J (McClelland CJ at CL and Schmidt J agreeing) said in Alvares v R [2011] NSWCCA 33 at [65]:

"... a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace (1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as "the often ritual incantation of remorse and contrition" be automatically accepted by a sentencing judge."


[33] The Crown submits that the judge's remark about the Applicant not expressing any remorse for his offending should be understood as his Honour saying that there was insufficient evidence to persuade him to the requisite standard that a finding of remorse should be made. I do not accept that submission. That is simply not what the judge said. In my view, the judge approached the sentencing on the basis that the Applicant did not express any remorse to his offending, and that thereby he approached it on a wrong factual basis.”


s 21A(5) Prior good character

Section 21A(5) Crimes (SP) Act states that in sentencing for child sexual assault offences a court is not to take into account good character or lack of previous convictions as a mitigating factor where satisfied the factor assisted in the commission of the offence.

In NLR [2011] NSWCCA 246 the sentencing judge did not refer at all to s 21A(5) and had gone on to find that good character did not entitle the applicant to any leniency: at [28]. The CCA said this was erroneous and that for s 21A(5) to apply a judge must make an express finding that this is so.

However, the CCA dismissed the appeal as the error was procedural and did not affect the sentence: at [32]-[33]. The judge’s remarks were general. If the judge had referred to the need to make an express finding, she would have been entitled to make such a finding in regard to both good character and lack of convictions. The judge would not have made these general remarks unless they were applicable to the applicant: at [32].

Exceptional circumstances of family hardship

In Mokhaiber [2011] NSWCCA 10 the applicant was sentenced for child sexual assault offences. The CCA accepted fresh evidence of family hardship due to the applicant’s youngest child being diagnosed with a severe genetic condition. The applicant’s wife was full-time carer and also cared for two other children. Allowing the appeal, the CCA said the hardship to family members caused by a prison term can only be taken into account in “highly exceptional circumstances”: Edwards (1996) 90 A Crim R 510. In this case, the overwhelming hardship to the applicant’s wife due to the applicant’s imprisonment were to be regarded as highly exceptional. Modest weight was also given to the applicant’s distress at being unable to assist his wife thus making his imprisonment more onerous: Markovic v R; Pantelic v R [2010] VSCA 105 at [20].

Motive – Provocation

In Smith [2011] NSWCCA 209 the applicant broke into the victim’s home and assaulted him, mistaking the victim for NK who had been making abusive phone calls to the applicant’s mother. Allowing the appeal, the CCA found the judge failed to give the applicant’s motive sufficient weight in assessing the offence’s objective gravity and had erred in finding that motive underscored the need for personal deterrence: at [26].

Motive is always a relevant factor. It affects moral culpability, the weight to be given to personal deterrence and may affect the weight to be given to general deterrence: at [24]; Swan [2006] NSWCCA 47 at [61]. The offence was out of character. The applicant’s motive did lessen his culpability and diminished the need for personal deterrence, while general deterrence remained an important factor: at [26].

Drug addiction caused by an event for which offender not primarily responsible

In Turner [2011] NSWCCA 189 (armed robbery) it was an error not to take into account as a mitigating factor an addiction to prescription drugs that did not arise out of personal choice. The applicant pointed a syringe at hospital medical staff then took drugs from a cupboard. When arrested the applicant told police he was intending to commit suicide. The applicant had developed an addiction to medication / painkillers as a result of a serious accident seven years ago.

Allowing the appeal, the CCA said that the applicant’s addiction grew from an event for which he was not primarily responsible and was not a matter of personal choice. The CCA cited from Henry at [255]-[259] where Wood CL at CL stated that drug addiction may be relevant as a:

“ … subjective circumstance, insofar as the origin or extent of the addiction, and any attempts to overcome it, might:

o (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example, where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery (cf R v Hodge (Court of Criminal Appeal, 2 November 1993, unreported) and R Talbot [[1992] 34 FCA 100]); or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete.”

The CCA said the applicant’s case fell squarely into that principle: at [58].

The judge also erred in referring to cases concerning drug abuse as the applicant had been receiving legitimate prescriptions and there was no evidence of drug abuse: at [62].

Basten JA also noted a distinction between illicit drugs and prescription drugs. In the latter case, addiction may diminish the level of moral responsibility: at [5].

In Jodeh [2011] NSWCCA 194 the offender committed three armed robberies. He had been involved in a serious motorbike accident which led to using drugs to cope with depression, anxiety and physical and mental pain. The judge found that the applicant had made a deliberate decision to use illicit drugs and that his drug addiction did not reduce culpability to any significant degree. The CCA said this finding was open to the judge. It was open to the judge to find that this case did not fall into the “rare category” described by Wood CJ at Cl in Henry (1999) 46 NSWLR 346 (referred to in Turner, above); (the appeal was allowed on other grounds). Per McCallum J:

“[32] Particularly (in light of the applicant’s decision not to give evidence) there was little basis on which the Judge could assess the extent to which the applicant was troubled by pain on a regular basis in the period leading up to the offences. He was evidently able to ride a motorbike on the days of the first two armed robberies. There was no evidence that he made any attempt to address the issues of pain and depression with professional assistance and legally-prescribed drugs. Although the letter from the applicant’s sister identified the drug he had been prescribed, and asserted that it did not provide adequate pain relief, there was no ability for the Judge to assess the strength of those contentions.”


In Job [2011] NSWCCA 267 the applicant was sentenced for fraud offences. The applicant offered to make restitution by repaying $106,500 which would mean selling his home and property. The judge ordered the reparation but said: “…it is not a matter of mitigation that reparation is paid. It is an aggravating factor if it is not.” Allowing the appeal, the CCA said it was an error to not treat the reparation as a matter of mitigation. Reparation can be taken into account as mitigation where it involves “a substantial degree of sacrifice”: at [37]-[45] citing Phelan (1993) 66 A Crim R 446 at 448, Conway (2001) 121 A Crim R 177 at [17]–[22], Thewlis (2008) 186 A Crim R 279 at [3]-[4]. Voluntary reparation in property crimes can be characterised as ameliorative conduct - not seen merely as an incident of remorse, although clearly the two notions overlap. It may be seen as a factor which might justify a measure of leniency in its own right: at [46]; Thewlis at [38]-[40].

In this case, the applicant had not yet made any restitution as in other cases. However, his undertaking to do so, and the steps he had taken by putting two properties on the market, were entitled to some weight in his favour. The hardship occasioned by the sale of the family home was not dissimilar to that identified in Phelan: at [46]-[49].


Comparative cases

In Wilcox [2011] NSWCCA 42 the CCA analysed a schedule of comparable cases and allowed the applicant’s appeal against a sentence of 19 years with a non parole period of 14 years for armed robbery (s97(2) Crimes Act). The Court said that comparable cases may be examined to determine whether patterns exist and to shed light on the proper sentence in any case under consideration: DPP (CTH) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 at [123–124], [197]. A substituted sentence on appeal does not indicate the limits of the range unless the court says so. When the court dismisses an offender's appeal against sentence it does not thereby imply where, or whether, the sentence lies within the appropriate range. It simply declares that the sentence is not excessive. There are cases, however, where the remarks of the court indicate the upper limits of the appropriate range. When the court allows a Crown appeal against the inadequacy of a sentence, the substituted sentence will often indicate the lower limit of the appropriate range. Thus the cases decided by the court may to some extent indicate the limits of appropriate sentencing ranges: [109]-[111].

Consistency of approach in using statistics and comparable cases

In Smith [2011] NSWCCA 290 Blanch J (McClellan CJ at CL and Hislop J agreeing) said the difficulty with statistics and attempts to compare cases is that matters in each case are so variable. Blanch J said that, “It is in the context of the principle of consistency of approach that an analysis of past decisions is useful”: at [16], [20]. In this case, involving s52A(3) aggravated dangerous driving, an analysis of several past decisions led to the conclusion that the sentence imposed was the highest sentence imposed for this offence. In order to maintain a consistency of approach in sentencing, the sentence should be reduced: at [23].

Statistics - Armed robbery

In McCarthy [2011] NSWCCA 64; (2011) 206 A Crim R 131 the CCA said that statistics will be useful in an armed robbery case. The High Court in Hili & Jones v R [2010] HCA 45 was critical of the use of Judicial Commission statistics, however, Hili concerned federal offences for which there were a very small number of cases and the circumstances of such offences so varied that any useful analysis or graphical depiction of the results was difficult: at [41].

By contrast, armed robberies can demonstrate a marked similarity of characteristics, in respect of facts and the subjective features of the offenders. The cases are of such a kind, the experience of the Court extensive and the numbers of cases so substantial that the statistics are indeed useful: at [42]. The Court went on to consider the statistics under s 97(2) Crimes Act and comparable cases.

Use of statistics for a more serious offence

In Sinkovich [2011] NSWCCA 90 the CCA warned against the over-reliance on statistics. The applicant was sentenced for supply commercial quantity of amphetamine. The applicant referred to sentencing statistics for the more serious offence of "supplying a large commercial quantity of amphetamine" arguing they showed the sentences and non-parole periods were considerably lower than that imposed on him for a lesser offence. The CCA disagreed with this approach as the quantity of drug involved is not necessarily determinative of the level of criminality: Markarian (2005) 228 CLR 357. The individual circumstances of the lesser offence could cause it to be characterised as a more serious offence by comparison: at [59].



In Hawkins [2011] NSWCCA 153 the CCA discussed the appropriate discount where the applicant first pleaded guilty in the Local Court but due to delay and other procedural matters did not enter a plea in the District Court until 18 months later.
The applicant pleaded guilty to two offences in the Local Court in November 2008. In July 2010 in the District Court, the Crown presented a third charge but decided not to proceed with it in the event that the applicant pleaded guilty to the first two charges. The applicant then pleaded guilty to the two offences he had pleaded guilty to in the Local Court. There had been lengthy delays due to the applicant’s mental health and a fitness hearing. The sentencing judge allowed a discount of 20%. However, the CCA allowed the appeal and accepted that the discount should have been 25%.

The CCA at [22]-[23] referred to Zeilaa [2009] NSWSC 532 where Howie J had noted that a plea of guilty at arraignment will not normally result in the maximum discount for the utilitarian value of the plea: Borkowski (2009) 195 A Crim R 1. A delay in the plea will usually impact upon its utilitarian value whatever the reason for the delay: Tazelaar [2009] NSWCCA 119. But the amount to be awarded by way of discount is discretionary and it is accepted that there can be unusual situations where fairness may impact upon the determination of the appropriate discount.

In this case, the fact the applicant pleaded guilty in the Local Court to the same two charges as in the District Court, was an important matter in determining the appropriate discount. The judge failed to have regard to that relevant matter: at [25]. The delay in the entry of the pleas of guilty both in the Local Court and again in the District Court can fairly be attributed to the applicant’s mental illness. The utilitarian value of those pleas is not reduced by the fact that they were the subject of negotiation whereby other charges were not pursued. That was also the case in Zeilaa (and see also Sharrouf [2009] NSWSC 1002): at [26].

It should be noted that in Thawer [2009] NSWCCA 158 the CCA said that Borkowski does not mean that a discount of no more than 15% can be given where a plea occurs on arraignment in the District Court. Borkowski does not prevent a judge awarding a larger discount in an appropriate case even where the plea is delayed until the offender appears in the District Court: at [46].

Manner in which hearing conducted may substantially erode utilitarian value of a plea of guilty

In AB [2011] NSWCCA 229 (culpable driving) the CCA said that the protracted way in which the hearing was conducted substantially eroded the utilitarian value of the plea of guilty.

The offender pleaded guilty in the Local Court but disputed the facts. This resulted in a protracted sentence hearing in the District Court over six days between May 2010 and March 2011. The sentencing judge gave a discount of 25% for the offender’s guilty plea. However, the CCA said there was a substantial erosion of the utilitarian value flowing from the respondent's pleas of guilty: at [26]. (The Crown appeal was allowed on other grounds).

Johnson J made the following observations (Bathurst CJ and Hoeben J agreeing):

. Where a Court must undertake a lengthy sentence hearing due to an unsuccessful application for leave to withdraw a guilty plea ( R v Wilkinson (No. 5) [2009] NSWSC 432 at [75]), or where, like here, there are disputed questions of fact which are resolved adverse to an offender, then a sentencing Court is entitled, if not required, to have regard to these practical events in assessing the utilitarian value flowing from the pleas of guilty: at [27].

. The utilitarian discount for pleas of guilty does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence, but this is relevant to remorse: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10 [32]: at [28].

. As a matter of general principle, the utilitarian value flowing from a plea of guilty is not a fixed element, and is capable of erosion due to the manner in which the sentencing hearing is conducted. This is an acknowledgment of the fact that what may be gained in utilitarian terms from the avoidance of a trial may be lost, also in utilitarian terms, by way of a protracted sentencing hearing involving the adducing of evidence and the consumption of public resources for a purpose ultimately determined adversely to an offender: at [33].

Bathurst CJ in AB (at [3]) said that sentencing courts should generally continue to follow the approach in Borkowski (2009) 195 A Crim R 1 but that the principles should be applied by reference to the particular circumstances of any given case. Borkowski sets set out the general principles to be applied in allowing a discount for the utilitarian value of a plea of guilty. Again, it is noted that Borkowski does not prevent a judge awarding a larger discount than 15% where an offender does not plead guilty until the District Court: see Thawer [2009] NSWCCA 158 at [46].

Discount of 25% under the Criminal Case Conferencing Trial Act 2008

The Criminal Case Conferencing Trial Act 2008 establishes a trial scheme for compulsory case conferences for proceedings involving an indictable offence. The scheme relates to committal proceedings in the Downing Centre or Central Local Courts in Sydney. The scheme was ended by the Criminal Case Conferencing Trial Amendment Regulation 2011. However, the Act continues to apply where a Court Attendance Notice (CAN) was filed on or after 1 May 2008 but before 8 October 2011.

Under the scheme, the Court must allow a discount of 25% where an offender pleads guilty in the Local Court any time before being committed for sentence: s 17(1). In Chompeay [2011] NSWCCA 96 it was an error not to allow a 25% discount as required by s 17(1). See also Do [2010] NSWCCA 182; Tran [2010] NSWCCA 183.

Discount under Criminal Case Conferencing Trial Act 2008 where earlier offer to plead guilty to an alternative charge is rejected by Crown

In Passaris [2011] NSWCCA 216 the CCA said the applicant should have received a larger discount for a guilty plea when an earlier offer to plead guilty to an alternative charge was initially rejected by the Crown. The applicant had offered to plead guilty to ‘recklessly inflicting grievous bodily harm in lieu of ‘inflict grievous bodily harm with intent’. The prosecution disagreed with the facts as put forward by the applicant and rejected the offer. On the day of his trial the offender pleaded guilty to the lesser offence on the basis of different agreed facts.

If an offender pleads guilty to an offence any time after being committed for trial, the court may allow a discount up to 12.5% unless “substantial grounds” exist: ss 17(2)-(5). The sentencing judge gave a discount of 12% as the plea was not entered at the earliest opportunity.

The CCA (Harrison J with whom Hall J and Bathurst J agreed; Hall J disagreeing with this ground) held the offender should have been considered for a larger discount pursuant to s 17(5). However, no lesser sentence was warranted and the appeal was dismissed.


Old sexual assault offences

In PWB [2011] NSWCCA 84 the applicant was sentenced for two old child sexual assault offences under s 61E(1) (Act of indecency on child under 16) and s 61M(2) (Act of indecency on child under 10). The offences were committed in 1987 and 1991. The judge recognised the legal principle that the applicant should be sentenced according to sentencing standards that applied at the time of the offences. However, the judge erred in then saying that heavy custodial penalties were now in place and were required. Upholding the appeal, per RS Hulme J (Harrison J agreeing; Beazley JA agreeing generally but differing as to sentence):

“[55] Another error related to the principle that, given the extent of the time between his offending and sentence, the Applicant was entitled to be sentenced in accordance with sentencing standards current at the time of his offending - R v MJR (2002) NSWLR 368; 130 A Crim R 481; AJB v R [2007] NSWCCA 51; 169 A Crim R 32 at [39].

[56] Her Honour recognized this principle although having done so and adverted to some earlier cases from the period 1989 to 1994, she went on inexplicably to remark:-

Thankfully, the view of the Court of Criminal Appeal and the legislature has changed. By 1995 there was a significant shift in the penalties to be imposed and there has been further increases in the penalties in more recent times. ... The Court of Criminal Appeal has stated ... that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual assaults by adults.

[57] The tone of these remarks is such that, despite her Honour's recognition of the principle, it is impossible to conclude otherwise than that her Honour allowed herself to be influenced by this shift in penalties for which she was thankful. Such an approach was erroneous.”

The judgment contains useful reference to cases involving old sexual offences. The Court derived assistance from two publications by the Judicial Commission:- "Child Sexual Assault" (Number 15, 1997, Monograph Series) and "Sentencing Offenders Convicted of Child Sexual Assault" (Number 25, 2004, Monograph Series). A schedule of cases prior to 1 January 1999 involving ss 61E and 61M(2) is annexed to the judgment.

Sentencing practice at the time of the offence is relevant when sentences have subsequently increased - Manslaughter case

In Scott [2011] NSWCCA 221 the applicant was sentenced to ten years’ imprisonment for accessory before the fact to manslaughter committed in 2000. The CCA said the judge had not erred by failing to sentence in accordance with earlier sentencing practice. This was because the sentencing practice at the time of the offence is relevant when sentences have subsequently increased, and this was not the case with manslaughter. Dismissing the appeal, the CCA made the following observations:

. At [40]: Where sentencing patterns (sentencing practice) have moved adversely to the offender since the commission of the offence, then the sentencing court should take into account sentencing patterns for the offence at the time of the commission of the offence: MJR (2002) 54 NSWLR 368. . The onus is on an offender to establish what was the sentencing practice at the time of the commission of the offence; Moon (2000) 117 A Crim R 497 per Whealy J at [25] and per Howie J at [64]: at [52].

. Evidentiary materials which can be used to discharge this onus include sentencing statistics, judgments and recollections of judges having knowledge of what was the sentencing practice at the time the offence was committed: at [53].

. If sentencing practice has moved adversely to an offender since the time of offending, this will probably reflect changes in the legislature’s attitude to the type of offending, evidenced by legislative changes in the nature of the offence and increases in maximum penalty: Moon per Howie J at [65].

The CCA observed that in contrast to sexual assault offences, the offence of manslaughter remained unchanged, with the same maximum penalty, between 2000 and 2010. While standard non-parole periods have been enacted for many offences, with a resulting increase in the level of sentences for some offences, there is no standard non-parole period for manslaughter: at [66]. On the whole of the evidentiary materials, and particularly the statistical evidence, it was not established there was any significant change, in sentencing practice for manslaughter between the time of the applicant's offence and the time of sentencing: at [67].



Exchanges between Bench and counsel – increasing proposed sentence

Procedural fairness was denied where the judge indicated the proposed sentence during submissions at the sentencing hearing but later increased it without notice when delivering judgment: Ng [2011] NSWCCA 227; Weir [2011] NSWCCA 123.

In Ng [2011] NSWCCA 227 (murder) it was substantial unfairness when the judge imposed a longer sentence on the applicant than his co-offender and also made a finding that the applicant was more dangerous than his co-offender. Defence counsel was not given an opportunity to make further submissions on these points. During exchanges in the sentence proceedings, the judge had said he would impose the same starting point for both offenders and had indicated he would not make such a finding as to dangerousness. indicating he would not be making such a finding. Per the Court:

“[41] This Court has observed that it will not normally find an error of principle from interchanges between the Bench and counsel, since judicial views expressed during submissions do not necessarily reflect a considered decision: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475 [32]. It is the judgment of the Court which ought be considered for this purpose, and not exchanges between the Bench and counsel during the course of submissions.

[42] Of course, the Applicant does not seek to rely here upon exchanges during submissions to demonstrate an erroneous view of law or fact on the part of the sentencing Judge. Rather, the Applicant submits that the course of events demonstrates a denial of procedural fairness to the Applicant.

[43] The relevant principles to be applied when such a complaint is made were summarised helpfully by Garling J (Macfarlan JA and Johnson J agreeing) in Weir v R [2011] NSWCCA 123 at [64]-[67]:

"64 It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.
65 The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.
66 The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].
67 One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18]."


[48] We are satisfied that there has been a practical injustice, and substantial unfairness to the Applicant in this case in at least two respects.

[49] Firstly, the Applicant received a longer sentence of imprisonment on the murder count than that which had been identified clearly by the sentencing Judge in the course of submissions, without any indication from his Honour that his view had altered in this respect, accompanied by an opportunity to make further submissions on the issue.

[50] Secondly, the finding that the Applicant was "a markedly more dangerous man" than Lo (as an apparent basis for moving upwards from the 30-year starting point) had not emanated from any submission from the Crown nor from any exposure of his Honour's provisional thought processes during the sentencing hearing. ………


[52] It is important to observe that this ground does not contend that his Honour was bound to impose a particular sentence because of the Crown concession on sentence or the common position expressed by counsel. It is for the Court to decide on sentence. The sentencing discretion is to be exercised in the public interest: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 606E-F. There is no such thing as a plea agreement which restricts the sentencing Judge: GAS v The Queen [2004] HCA 22; 217 CLR 198 at 210-211 [27]-[32]; Ahmad v R [2006] NSWCCA 177 at [21]-[26].

[53] The present ground arises from the course of events which commenced with the expression of a 30-year starting point as a ceiling on the murder count, an expression which continued throughout the sentencing hearing.

[54] We are satisfied that the course of events in the sentencing proceedings gave rise to a denial of procedural fairness to the Applicant. In our view, Ground 6 has been made good.”

In Weir [2011] NSWCCA 123 the CCA said procedural fairness was denied even though the judge said the view he was expressing was only “tentative”. This was because the judge also made other comments that it is “highly likely that that would be the sentence”. To then later impose a longer sentence resulted in “practical injustice and substantial unfairness”: at [78].


Section 59 Crimes (Sentencing Procedure) Act: Power to vary commencement of sentence on quashing or varying of other sentence

A Court (usually the District Court or CCA) may quash a sentence and the appellant is left with another sentence of imprisonment to commence on a future date in relation to another offence. Section 59 Crimes (Sentencing Procedure) Act gives a Court the power to vary the commencement date of that future sentence.

In Allan v R (No 2) [2011] NSWCCA 27 at [13] the CCA noted that s 59 applies to applies to concurrent sentences and partially consecutive sentences. Section 59 is not limited to the situation where the quashing or varying of a sentence will result in a hiatus for a further sentence of imprisonment which commences on a future date in the future. The commencement date of a future sentence may be varied where a sentence is quashed and the offender’s release date remains unchanged: at [18]-[19]. Per Price J (Simpson and Hoeben JJ agreeing):

“ [16] The facultative nature of the Court's power under s 59 was emphasised by Spigelman CJ in Regina v Pham [2004] NSWCCA 263. The Chief Justice explained at [9]:

"Section 59 is a provision designed to serve pragmatic purposes: to ensure the efficiency and expedition of the administration of criminal justice. Its clear purpose is to permit variations consequential upon a sentence of imprisonment being set in a second matter by reference to the dates of the sentence imposed in the first matter."
[17] In Regina v Walsh [2004] NSWCCA 428, Howie J backdated the commencement date of another sentence to overcome an error made by a sentencing judge. Howie J said at [18]:
"Because I have varied the dates on which the sentences imposed by [the sentencing judge] are to commence, and therefore have varied the date upon which the non-parole periods are to conclude, there will have to be some adjustment made to the sentences imposed in the District Court on appeal, in respect of the other matters dealt with by [the sentencing judge]. I have power under section 59 of the Crimes (Sentencing Procedure) Act 1999 to vary those sentences, because I have varied the earlier sentences on which those later sentences relied."
[18] I conclude that this Court's power under s 59(1) is not limited to those cases where the quashing or varying of a sentence of imprisonment will result in a hiatus before any other sentence imposed on the offender by any other court commences.

[19] It does not necessarily follow from the quashing or variation of the first sentence that this Court should exercise its discretion under s 59(1) to vary the commencement dates of the second sentences: see for example AJO v Regina [2008] NSWCCA 28.”


Error to backdate commencement of sentence on expiry date of parole period for earlier sentence

In Aiken [2011] NSWCCA 208 the applicant was sentenced for a number of offences which were committed whilst serving a prison sentence for other matters. The Court said it was an error the judge ordered the new sentence commence at the expiration of the parole period for the earlier sentence. The applicant was eligible for release to parole and no decision to deny the applicant parole had been made: at [5]. The Crown accepted there was an error. The applicant was being effectively punished twice for the later offence: at [6]. Per McClellan CJ at CL:
“[6] The Crown accepts the legitimacy of this complaint for it effectively results in the applicant being punished twice for the later offence. The issue was considered by this Court in R v Ellmore [2002] NSWCCA 242. A sentencing court is required to take into account any time which an offender has been held in custody in relation to the offence or offences for which he or she is to be sentenced: ss 24 and 47(3) of the Crimes (Sentencing Procedure) Act 1999. A sentencing judge retains a discretion as to whether or not a sentence should be backdated to commence on a date prior to the expiry of a parole period of an earlier sentence when an offender's parole has been revoked ( Callaghan v The Queen (2006) 160 A Crim R 145). However, it is erroneous to backdate a sentence to commence on a date prior to the expiry of a parole period of an earlier sentence, in circumstances where an offender's parole has not been revoked.

[7] As it happened the applicant's custody after 16 October 2008 was solely referrable to the present offences. He was eligible for release to parole on that date. No order for revocation of parole was made by the Parole Board in relation to the earlier period of custody. It was appropriate for the sentencing judge to have regard to the fact that the offences were committed during a period of incarceration as an aggravating feature but otherwise the sentence ought to have been commenced on 16 October 2008. In my judgment this Court must re-sentence to have regard to this issue. “


General principles - no judicially determined ‘norm’ for non-parole periods

In Caristo [2011] NSWCCA 7 the CCA said that there is no judicially determined “norm” or ratio of non-parole period to head sentence where special circumstances has been found: at [41]. Where determining the non-parole period for more than one offence, the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term because the “actual periods involved are equally, and probably more, important”: at [42].

The applicant received a sentence of 8½ years with a non-parole period of 6 years for two drug offences. The non-parole period was effectively 70.6% of the total sentence. The applicant submitted that the sentence did not properly reflect the judge's finding of special circumstances: s 44 Crimes (Sentencing Procedure) Act. However, the CCA found that the judge did not err in the exercise of his discretion. The Court referred generally to the principles regarding special circumstances. Per RA Hulme J (Giles JA and Adams J agreeing):

“[25] Principles applicable to the setting of the non-parole period of a sentence under s 44 Crimes (Sentencing Procedure) Act are well settled and only brief reference is required. The following is not intended to be exhaustive.

[26] The non-parole period is the minimum period of actual incarceration that the offender must spend in custody having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the offence and the offender's subjective circumstances: Power v R [1974] HCA 26; 131 CLR 623 at 627–629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59]; R v Cramp [2004] NSWCCA 264 at [34].

[27] A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83].

[28] “As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive”: R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36].

[29] Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow, above, at [22].

[30] The degree or extent of any adjustment of the “statutory ratio” is a matter for the discretion of the sentencing judge: R v Cramp, above, at [31]; Trad v R [2009] NSWCCA 56 at [33]. “

The applicant argued that the "norm" for the non-parole period for Commonwealth offences was about 60 — 66-2/3% of the total term as stated in Bernier (1998) 102 A Crim R 44 and this should be applied to State offences. However, the CCA said there is no judicially determined 'norm' for non-parole periods: Hili v The Queen (2010) 272 ALR 464; and a sentencing judge should determine the length of the non-parole period in accordance with general principles: at [39].

The Court observed it is important to look at the actual periods involved and not just focus on percentages. Per RA Hulme J:

“[41] …… The factual situations confronting a judge who has made a finding of special circumstances are so variable that no generalised proposition would suit every situation. To offer an obvious example, a non-parole period that is 50 per cent of the total term might be considered appropriate in a case where the total term is 2 years when it is felt necessary to allow for a 12 month period of parole. But it is almost impossible to imagine 50 per cent being appropriate where the total term is 20 years so as to allow for a 10 year parole period. Further, the total term of the sentence is but one of almost infinite considerations that may potentially be relevant.

[42]This brings me to the point that the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important. In the present case the judge's sentencing order allows for a potential period on parole of 2 years 6 months. There was no evidence before the judge that required a conclusion that this was insufficient to meet the purposes for which the judge found special circumstances. ”

Accumulation of sentences and institutionalisation

In Barrett [2011] NSWCCA 213 the Court discussed the finding of special circumstances where sentences are accumulated. The applicant had been in custody for some time for other offences when sentenced. The proportion between the effective non-parole and aggregate sentence was 83%. The applicant argued on appeal that, in regard to the longest sentence imposed, special circumstances should have been found.

Allowing the appeal, the CCA said accumulation of sentence is a well established basis for the finding of special circumstances. Where a judge does not explain why the proportion between effective non-parole and aggregate sentence exceeds 75% the inference might be drawn that the practical effect of accumulation was overlooked: at [29]. Institutionalisation may also be a basis for special circumstances. Per Hidden J (Whealey JA and Johnson J agreeing):

“[29] It is well established that accumulation of sentence, whether by reference to sentences passed on one occasion or to a sentence which the offender is already serving, is a basis for a finding of special circumstances. Equally, it is well established that whether special circumstances are found for that reason is a matter for judgment in each case. Certainly, there is not a general requirement that the proportion between effective non-parole period and aggregate sentence should not exceed 75%. Nevertheless, where it does, one would expect the sentencing judge to articulate his or her reasons for doing so and, in the absence of such reasons, the inference might be drawn that the practical effect of the accumulation was overlooked: R v Nightingale [2005] NSWCCA 147, per Tobias JA (with whom Buddin and Hall JJ agreed) at [39] - [46].

[30] That inference is available here. Furthermore, the case raises another issue, although it is one which does not appear to have been raised before his Honour. There is authority that the risk of institutionalisation might be a basis for a finding of special circumstances. A number of cases concerned with this issue were cited by Fullerton J (with whom McClellan CJ at CL and Simpson J agreed) in Jackson v R [2010] NSWCCA 162 at [24]. Among those cases was R v Lemene [2001] NSWCCA 5, 118 A Crim R 131, decided by a bench comprising Simpson and Dowd JJ. It is unnecessary to recite the facts of that case but, significantly for present purposes, on re-sentence the court found special circumstances largely because of the degree of institutionalisation of that offender: see the leading judgment of Dowd J at [66] - [67], Simpson J agreeing at [9].

[31] In Jackson , at [25], Fullerton J expressed the approach of the court in Lemene , and the principle underlying it, in this way:

" The adjustment in the statutory ratio was made in that case expressly to assist in the rehabilitation of the offender who had spent little time out of an institution over the course of his adult life having suffered social, educational, psychological and occupational disadvantages in his youth. Her honour's approach, however, underscores the fact that a risk of institutionalisation, even in the face of entrenched recidivism and serious reoffending, is a factor a sentencing court may regard as a sufficiently special circumstance to warrant an adjustment to the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act ."

(In that passage Fullerton J appears to have attributed to Simpson J observations which, in fact, are to be found in the judgment of Dowd J.)

[32] In my view, the present case called for that approach. The applicant's criminal history discloses that from 2002 until his present period of custody, commencing in 2007, he had been in and out of gaol. In 2002 and in each of the ensuing years he was sentenced to prison terms, and on two occasions he was returned to custody following the revocation of a parole order. As I have said, his present custodial situation is such that by the time he next becomes eligible for release on parole he will have spent almost 7 years in prison. “
Offences committed whilst on bail irrelevant to special circumstances

In Bellchambers [2011] NSWCCA 131 it was an error to decline making a finding of special circumstances on the basis that the offender had committed further offences whilst on bail. This had no relevance to whether a finding of special circumstances ought to be made: at [43].


Drug importation

In Holland [2011] NSWCCA 65; (2011) 205 A Crim R 429 (drug importation) the CCA said that DPP v De La Rosa [2010] NSWCCA 194; (2010) 205 A Crim R 1 does not have the status of a guideline decision and that the sentence ranges referred to may not be used to establish error. The Court (Schmidt J; McClellan CJ at CL agreeing with additional observations; Buddin J agreeing with Schmidt J) dismissed the Crown appeal, rejecting the Crown’s reliance on De La Rosa to demonstrate inadequacy. The Court made the following observations on the appropriate use of De La Rosa:

. Much of the argument in the appeal focused upon the "Categories of offence" in De La Rosa (2010) 243 FLR 28 . As stated in De La Rosa, so as to assist others to readily access the information, decisions were grouped by reference to common characteristics, so far as they could be identified. However it would be wrong to sentence an offender by seeking out the "category" into which they fit and imposing a sentence which is thought to be appropriate for an offence which happens to have the characteristics found in that category: at [3] per McClellan CJ; at [78] per Schmidt J.

. De La Rosa is not a guideline decision: at [51]

. That the sentence imposed in a particular case falls outside the range identified as applying to one of the categories considered in De La Rosa, cannot be a basis upon which error in the exercise of the sentencing discretion may be identified. A conclusion that a particular sentence is manifestly inadequate or excessive must rest on a more particular identification of error than that. That must be all the more so in the case of a sentence imposed before De La Rosa was decided: at [52].

Characteristics of a ‘principal’ in drug cultivation matter

In Nguyen [2011] NSWCCA 92; (2011) 208 A Crim R 432 the applicant was sentenced for cultivate a large commercial quantity of cannabis by enhanced indoor means. The applicant submitted on appeal that the sentencing judge had erred in finding that she was a principal.

Although the Court unanimously dismissed the appeal, there was disagreement as to whether or not the applicant was a principal. Simpson J (with whom Davies J agreed) held that it was not open on the evidence to find that the applicant was a principal: at [4]. [9]. Grove AJ, however, found there was no error in finding that the applicant was a principal: at [31].

Simpson J discussed some of the characteristics of a ‘principal’ and why the applicant did not fall into this category:

. "Principal" is an expression that is commonly used in sentencing in respect of drug offenders, but may not have a commonly accepted or applied meaning. The indicator of the role of an offender as "principal" involves at least some of the following characteristics:

. contributing financially to the cost of setting up the operation;
. standing to share in the profit (as distinct from receiving payment);
. having some hand in the management of the operation (although it is well recognised that principals will, so far as possible, distance themselves from the day to day operation, they nevertheless maintain considerable control over the enterprise);
. having some decision making role (which may not be different from the item above).
This does not purport to be anything like an exhaustive list. There may well be other features that indicate an offender ought to be characterised as a principal: at [4].

In this case there was, no proper basis for the finding that the applicant was a principal. The evidence fell far short of establishing any of these characteristics for these reasons: at [5]-[9] -

. There was no that the applicant was in any position to contribute anything financially to the enterprise. A very considerable financial outlay had been made in establishing the cultivation. The premises were rented and considerable modifications had been made to the premises which had been "fitted out as sophisticated hydroponic growing rooms".

. While it could be accepted that the applicant had a day to day hands-on role in the cultivation, there was no evidence she had any management or decision making role to justify a conclusion she was principal (even one of two principals).

. It is difficult to reconcile the finding that the applicant was a principal with the subsequent finding that others may "have preyed upon her naivety and vulnerability".

Where offender not involved in trafficking to a “substantial degree”- Whether custodial sentence appropriate

In Bassos [2011] NSWCCA 218 (drug supply commercial quantity) the applicant submitted that the judge had found the applicant was not substantially involved in the supply of drugs, but had then failed to make the necessary anterior finding of “trafficking in drugs to a substantial degree” before concluding that a custodial sentence had to be imposed: Scott [2010] NSWCCA 103. The applicant also argued that the judge failed to gave regard to s 5 Crimes (Sentencing Procedure) Act 1999. Dismissing the appeal, Hoeben J (Bathurst CJ and James J agreeing) held that the judge had not erred in her approach and that a custodial sentence was required. Per Hoeben J:

“[30] With due respect to the applicant, his statement of principle in relation to sentencing for drug trafficking, is not entirely correct. The correct approach was set out by Simpson J (with whom RA Hulme J and I agreed) in Zahrooni v R; Director of Public of Public Prosecutions (NSW) v Zahrooni [2010] NSWCCA 252 at [29]:

‘29 The cases to which I have referred focus largely upon the meaning of the word “trafficking”. Whether consideration is given to that word, or to the words “to a substantial degree”, the issue is the extent of involvement in supply. Where the supply is on a single, isolated occasion, the circumstances might (or might not) permit a non-custodial sentence. But the authorities are clear that where the dealing involves “trafficking to a substantial degree” it is only in exceptional circumstances that a non-custodial sentence will be imposed. The converse of that proposition, on Mr Zahrooni’s argument, is that, if the trafficking is not “to a substantial degree”, a custodial sentence is not necessarily inevitable. It would be more accurate to say that the cases cited do not, in those circumstances, require a custodial penalty.’

[31] That last observation by her Honour is important. In such circumstances, it is open to a court to impose a custodial penalty but in accordance with the authorities, it is not obliged to do so.

[32] In Zahrooni her Honour went on to say:

‘30 Here, as in Scott, the judge did not make an express finding as to whether Mr Zahrooni’s offence involved “trafficking to a substantial degree”. But he did, with justification, find that Mr Zahrooni was “a user/dealer”.

31 It is incorrect to suggest that the judge failed to take account of the extent of Mr Zahrooni’s involvement. On two occasions he referred to the quantity of the drug (69 grams — more than double the trafficable quantity); the individual packaging (48 sachets); the relatively large sum of money in his possession (having regard to his financial circumstances); and the text message; to this may be added the possession of two mobile telephones.’

[33] Similarly, it is not correct to say that in this case her Honour failed to take account of the extent of the applicant’s involvement in drug dealing. Her Honour specifically found that “the offender had a large quantity of the substance in his possession, that he had or would give some to friends, that he was a big user of the substance himself and that at most, the substance was worth $5,000”. Those findings refer to the quantity of drug involved and that there was some (albeit modest supply on her Honour’s findings) to friends.

[34] Accordingly, it was open to her Honour to impose a custodial penalty but she was not obliged to do so. When, however, one takes into account the standard non-parole period of 10 years, which continued to operate as a guidepost, the maximum sentence of imprisonment for 20 years, which also operated as a guidepost, and the effect of the Form 1 offences, it is difficult to see how a lesser sentence could have been imposed.”

The judge did not refer to s 5 Crimes (Sentencing Procedure) Act but her Honour’s reasons disclose that her Honour considered the alternative to a custodial sentence but rejected it: at [35].

‘Exceptional circumstances’ is not required before leniency may be extended to drug importer

In Chong [2011] NSWCCA 182, involving a drug importation, the sentencing judge said, “there is not a great deal of latitude in these matters, barring exceptional circumstances or the provision of significant assistance”. The Court accepted the applicant’s submission that the judge erred in introducing a requirement of ‘exceptional circumstances’ before leniency can be extended. Allowing the appeal, per Simpson J (McClellan CJ at CL and Fullerton J agreeing):

“[33] …. But each case must be treated individually; s 16A(1) of the Crimes Act directs a court sentencing federal offenders to:

impose a sentence … of a severity appropriate in all the circumstances of the offence.

Against that must be balanced the direction in s 16A(2)(k) to pay adequate regard to:

… the need to ensure that the [offender] is adequately punished for the offence.

[34] That, in my opinion, leaves no room for the super-imposition of an “exceptional circumstances” test: see Hili v R [2010] HCA 45 ; 84 ALJR 195 at [25], [54]. It is correct to say that, in the interests of consistency in sentencing, sentencing judges must have regard to what has been done in other cases: Hili at [53]. What has been done in other cases may give way to the particular circumstances of the case in question. I have come to the conclusion that, in speaking as he did, the sentencing judge introduced into the exercise of his discretion a barrier that was not warranted: the need to establish exceptional circumstances before he could depart from some (unspecified) range of sentences. It is true, of course, that there does exist a point below which a sentence would be manifestly inadequate, and a point above which a sentence would be manifestly excessive. But, within that range, there is no call for a requirement that exceptional circumstances be established. It is not entirely clear what his Honour meant, but it does seem to me that he may have removed the flexibility in his approach to which the applicant was entitled.”


In Mezzadri [2011] NSWCCA 125 the applicant pleaded guilty to possessing eight firearms. The firearms were all unregistered as the applicant was unlicensed. The offence was under s 51D(2) Firearms Act 1996 which carries a maximum penalty of imprisonment for 20 years and a SNPP of 10 years. The Crown appealed against the sentence of 1 year and 10 months. The judge had found the weapons to be unserviceable when seized by the police. The judge also accepted the applicant’s evidence that he believed the weapons were unserviceable: [10]-[12].

The CCA dismissed the Crown appeal. The possession of unserviceable weapons is significantly less objectively serious than the possession of serviceable weapons. The degree to which the weapons in question were unserviceable, that is to say whether the missing parts were capable of being found and the ease with which the gun could be made to work would be relevant. There was no evidence about such matters in this case. The unchallenged findings of the sentencing judge as to the actual serviceability of the weapons was of considerable significance. Even if the weapons were serviceable, the applicant’s belief that they were not, that they could not be fired with safety, was a material objective circumstance which pointed to the lower end of objective seriousness together with the lack of any intention to repair, use or dispose of them: at [19].


Error to refer to preventative detention where offender did not pose continuing threat to victims

In BIP [2011] NSWCCA 224 (child sexual assault) the judge referred to the importance of the protection of the community and the victims and imposed a sentence to that effect. The Court held that as the offender did not pose any continuing threat to the victims it was an error to impose a sentence involving preventative detention. Per Hoeben J:

“[44] The applicant submitted that her Honour's observation at ROS 16.9 that "it is in this type of offence very important to protect the community and more importantly of course each of these victims from the offender by making a lengthy custodial term that will have that effect ..." involved a finding which was contrary to principle. The applicant referred to Veen v R (No 2) (1988) 164 CLR 465 at 473 where the Court said:
"It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventative detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society, among other factors, which is permissible."
][45] The applicant submitted that as well as being contrary to principle, the statement was not supported by the evidence. He submitted that there was no evidence that he presented any continuing threat to the victims.

[46] On one view of what her Honour said she was doing no more than restating one of the purposes of sentencing an offender set out in s3A(c) of the Crimes (Sentencing Procedure) Act 1999. Had her Honour restricted her statement to the protection of the community, no real criticism could be made of it. There is, however, some force in the applicant's complaint about her Honour saying that "in this case it was very important to protect each of these victims from the offender by making a lengthy custodial term that will have that effect". There was no evidence before her Honour to support the proposition that the applicant presented any continuing threat to any of the victims. There was no submission by the Crown to that effect. Her Honour erred in making that statement. “

Aggravated indecent assault – suspended sentence appropriate in this case

In NJK [2011] NSWCCA 151 the respondent was sentenced for aggravated indecent assault and using a child for pornographic purposes. He was sentenced to 22 months and 15 days imprisonment, wholly suspended. The maximum penalty for the first offence was 10 years with a standard non-parole period of 8 years. Dismissing the Crown appeal, the CCA said that in the unusual circumstances of this case a suspended sentence was appropriate.

The respondent had taken photographs of his 5 year old step-daughter showing her bottom and had also briefly touched her bottom. He deleted the photographs shortly afterwards but they were found by his wife.

The CCA found a suspended sentence was within the permissible range and that the judge had balanced all relevant considerations: at [56]-[58]. The touching of the victim’s bottom is less serious than a touching of the genital area: at [37]-[38]. The case was unusual as it was a brief period of aberrant behaviour with no apparent adverse effect on the victim. The respondent had demonstrated rehabilitation: at [43].

Aggravated sexual intercourse with child — non-custodial sentences appropriate in this case

In KB; JL & RJB [2011] NSWCCA 190 the respondents were sentenced for aggravated sexual intercourse with a child between 10-14 (s 66C(2) Crimes Act. After drinking together, the offenders and the victim went to a park. KB and JL both had sexual intercourse with the victim while RJB touched her shoulders. The victim had told them she was 16.

The judge imposed suspended sentences on KB and JL, and RJB was given a good behaviour bond. The judge sentenced on the basis that the victim consented to the sexual acts and the fact the offence was committed in company was thus less significant: at [56]. As the victim had told the offenders she was 16 and also appeared to be 16, her age was not a matter of aggravation: [at 58]. The victim’s intoxication could also not be taken into account as an aggravating factor vitiating consent because this would render the offenders liable to a more serious charge: at [60].

Dismissing the Crown appeal, the CCA (Bathurst CJ, Buddin and Harrison JJ agreeing) said that in these circumstances it was open to the judge to find that the objective seriousness of the offence was at the lower end of the spectrum: at [62]. Appellate courts should be cautious in finding a judge erred in the assessment of objective circumstances, particularly for offences of this nature which occur in a wide variety of circumstances: at [53].



Offender’s contribution to mortgage and other financial costs to family relevant

In NJK [2011] NSWCCA 151 the applicant was sentenced for a child sexual assault offence involving his step-daughter. In suspending the sentence, the sentencing judge took into account that the applicant continued to pay the mortgage and renovation costs of the family home. The Crown appealed submitting on one ground that it was error to take this into account. Dismissing the appeal (Hoeben J agreeing; Grove AJ agreeing but with separate reasons) the CCA said that the benefits to the applicant’s family, including the victim, of the applicant being able to continue to work, alongside other matters, was a matter that could be taken into account: at [45]-[48].

Parity - Desirability of co-offenders being sentenced by the same judge

In two cases – Dwayhi & Bechari [2011] NSWCCA 67; (2011) 205 A Crim R 274. and Rae [2011] NSWCCA 211 - the CCA restated the desirability of co-offenders being sentenced by the same judge. Johnson J in Rae at [52] referred to the significant advantages such as remarks on sentence containing factual findings and conclusions concerning the relative criminality of the offenders and differing subjective features of each of them: at [52]; Dwayhi at [39]-[43]. Strong maintenance of the practice of related offenders being sentenced by the same Judge at the same time will serve the public interest in consistent and transparent sentencing of related offenders which underlies the parity principle itself: at [55]; Dwayhi at [46]. Different Judges may take different views as to the relevant culpability of related offenders: at [53]; Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 320; Dwayhi at [35], [37]. A recurring theme in the authorities is that, where co-offenders are sentenced after hearings before different Judges, there may be different evidence and submissions, leading to different conclusions being expressed by the sentencing Judges concerning criminal conduct of persons involved in the same criminal enterprise: at [56].

Conditions on parole orders only to be made on sentences of 3 years of less

The High Court in Muldrock [2011] HCA 39; (2011) 281 ALR 652 at [4] observed that a court can only impose parole conditions on sentences of three years’ imprisonment or less: ss 50-51 Crimes (Sentencing Procedure) Act 1999.

Reference in Victim Impact Statement to sexual assault offending with which Applicant not charged

In PWB [2011] NSWCCA 84 the judge incorrectly took into account offending with which the Applicant was not charged from a Victim Impact Statement. The applicant had been sentenced for two old child sexual assault offences occurring in 1987 and 1991 upon two victims. Wider sexual abuse had commenced in 1982. Per RS Hulme J (Harrison J agreeing; Beazley JA agreeing generally but differing as to sentence):

“{52] Before turning to these grounds in detail, it is appropriate to recognize that, in addition to those errors so far referred to, her Honour made other errors. One was in her treatment of the Victim Impact Statements. In this connection, her Honour said:-

From the victim impact statement it is clear her childhood was destroyed by the actions of this offender. Her schooling was adversely affected. Her relationship with her parents and siblings have been adversely affected. It has made her role as a mother and wife so much more difficult. She has attended counselling. I find on the evidence before me that she suffers substantial ongoing emotional harm.

[53] In R v Bakewell (unreported, NSWCCA, 27 June 1996) and other cases this Court has pointed out the difficulties that arise when a Victim Impact Statement asserts consequences to a victim arising from offending other than that the subject of a particular offence in respect of which a sentence is to be imposed. RB's statement purported to set out what was said to be the consequences of the totality of offending by the Applicant to its author. Given what RB asserted to be the extent of the Applicant's offending, that was perhaps inevitable and it not possible to separate out the impact of any particular occurrence. But be that as it may, it was only the impact of the offences charged that the judge was entitled to take into account. The remarks that I have quoted thus demonstrate error. “

Credit for time in residential rehabilitation where similar to quasi-custody

In BJT [2011] NSWCCA 12 the applicant submitted, and it was accepted by the Crown, that the applicant ought to have been given credit for 6 months spent in residential rehabilitation as it amounted to quasi custody. Allowing the appeal, the CCA backdated the sentence by one half of the period spent in residential rehabilitation. In this case, the applicant resided for 6 months at accommodation that met the strict requirements that correspond to quasi-custody. The Court referred to cases that have held that it is appropriate for an offender to receive recognition and credit for time spent in rehabilitation which has been productive: Delaney [2003] NSWCCA 342; (2003) 59 NSWLR 1; Hughes [2008] NSWCCA 48; (2008) 185 A Crim R 155.

Error to take into account injuries not inflicted during commission of offence

In Adams [2011] NSWCCA 47 the sentencing judge erred in taking into account a fracture to the victim’s arm in sentencing for an offence of ‘wounding with intent to cause GBH’ (s 33 Crimes Act). This was because the fracture occurred independently of the wounding. The applicant in the company of two co-offenders assaulted the victim. During this assault, the victim was struck by a baseball bat and suffered a wounding to his head - this was the wounding constituting the charge. Later, the applicant caused a fracture to the victim’s arm with a curtain rod. In allowing the appeal, the CCA considered other cases where this type of issue arose: McCullough [2009] NSWCCA 94, Wilkins [2009] NSWCCA 222; Bourke [2010] NSWCCA 22. Per Latham J:

“[31] It may be appreciated from the above extracts that a significant factor in Bourke, leading to the rejection of substantially the same arguments as the applicant has pressed upon the Court, was the fact that the relevant grievous bodily harm was inflicted at the same time as, and as a consequence of, the blows causing the wounding.
[32] Justice Hulme's reference to his judgment in Wilkins is instructive. At [34] and [35] of his Honour's judgment in Wilkins, it was accepted that Howie J's reasoning in McCullough applied and that the De Simoni principle had been infringed. The Chief Judge at Common Law and Davies J agreed with Hulme J. However, it is clear that the Court in Bourke revisited the issue in the light of the Crown's stance in that appeal.
[33] Given the rationale of the decision in Bourke, there is no basis for distinguishing McCullough in the circumstances of this case. It cannot be said that the fracture of the arm was an incident of the wound to the scalp. The Judge's finding, which was clearly correct, was that the blow by the applicant with the curtain rod that caused the fracture to the victim's arm was independent of the joint assault that caused the wounding. It was not open to the Judge to take into account an injury that was not inflicted in the course of the same assault in order to arrive at an assessment of the objective gravity of the principal offence.”

The need to deter others from making false claims is not a function of sentencing

In Kumar [2011] NSWCCA 139 (child pornography) the offender told a psychologist and a probation officer that his daughter had confessed to downloading the offending material. The judge said he took into account the need to deter others from making false claims that they did not commit the offence. The CCA said this was a serious error. The need to deter others from making “false claims” of innocence is not and never has been a function of sentencing. It cannot be an element of general deterrence as that function of sentencing is directed to deterring the commission by others of the offence in question. And, because it is not an offence, it cannot be justified by the need to prevent such false claims by the offender being made in the future: at [23].


Duty of disclosure by investigating police officers

Lipton [2011] NSWCCA 247 considered the duty of investigating police officers to disclose information under s15A Director of Public Prosecutions Act 1986. That section provides:
s 15A Disclosures by investigating police officers
(1) Police officers investigating alleged indictable offences have a duty to disclose to the Director all relevant information, documents or other things obtained during the investigation that might reasonably be expected to assist the case for the prosecution or the case for the accused person.
In Lipton (supply drugs) the Accused, prior to sentence, sought material regarding the relationship between his girlfriend and Police hoping to find evidence of entrapment that would provide mitigation. The DPP refused to produce any material. In response to a subpoena, Police indicated they had material that could assist the Accused but declined to produce it to the DPP claiming public interest immunity. The subpoena was set aside on the basis of no legitimate forensic purpose. An appeal to the CCA was dismissed.

The Accused obtained a stay of proceedings until the DPP had obtained from the Police all relevant documents; had formed an opinion on the relevance to the sentence of the Accused; and communicated that opinion to the Accused. The DPP appealed to the CCA.

The CCA considered whether the duty of disclosure under s.15A requires police officers to produces all materials to the DPP and whether it is insufficient to indicate the mere existence of material and claim public interest immunity.

Dismissing the appeal, the CCA (McColl JA; RS Hulme and Hislop JJ agreeing) considered the duty of a Crown Prosecutor to call all available material witnesses at [75]-[82], and the nature of the public interest immunity at [83]-[12]. McColl JA concluded as follows:

. Section15A of the DPP Act requires police to produce all material to the DPP. It is insufficient just to indicate material in existence but will not be produced. The DPP cannot discharge its primary role in the prosecution of indictable offences without all material [103]-[106].

. The Pro Forma Police Disclosure Certificate currently used by the Police and the DPP is invalid to the extent that it purports to permit Police to withhold material [109]

. Police can indicate a public interest immunity to the DPP upon production of the material but the DPP must examine the material and makes a decision as to whether such a claim may exist [110-111].

Legislative response to Lipton: new s 15A(6) DPP Act 1986

As a direct response to Lipton, the legislature enacted the Director of Public Prosecutions (Disclosures) Amendment Act 2011. The Act inserts a new s 15A(6) into the DPP Act 1986 to ensure that police investigating an alleged indictable offence are not required to disclose to the DPP any information which is the subject of a claim of privilege of public interest immunity; and that police only have to inform the police that have information of this kind. The amendment is a temporary measure while the issue is reviewed. (The current practice of police is to advise the Director of the existence of this material, using a Police Disclosure Certificate (cl 5, Sch 1 DPP Regulation 2010) but not to produce any sensitive material).

The amendment will cease to have effect on 1 January 2013: s 15A(7) The amendment is retrospective and applies to previous and current matters: s36(10)-(11).

“Screening” witnesses so that they cannot be viewed by offender

In BUSB v Director-General of Security [2011] NSWCCA 39 the Court said that a District Court judge had been correct in making a screening order in respect of ASIO officers, who were witnesses, so that they could be seen by everyone in court except the applicant. A five-judge bench (Spigelman CJ; Allsop P, Hodgson JA, McClellan CJ at CL, Johnson J agreeing) dismissed the applicant’s appeal. The District Court has an implied power to screen witnesses and can do so for the purpose of protecting national security: at [24], [36]. The judge was entitled to accept that the safety and operational effectiveness of the ASIO witnesses would be under threat if their identities were made known to the applicant: at [61]-[63]. There was no forensic disadvantage to the applicant: at [76]. The overriding principle is the right to a fair trial and the judge correctly balanced the conflicting interests: at [83]-[86]. (See also BUSB [2010] NSWCA 49).

Majority verdicts

As a result of Ingham [2011] NSWCCA 88, brief reference may be made to a majority verdict in the judge’s summing up. McClellan CJ at CL said:

“[25]………. The desirability of referring to majority verdicts in the summing up was emphasised by the Victorian Court of Appeal in R v Muto & Anor [1996] 1 VR 336; (1995) 83 A Crim R 67 where the Court said at 70-71:
"Early in the course of a charge the judge at a criminal trial usually includes a direction along the following lines:
'Parliament has recently introduced a provision which in certain circumstances allows me to take a majority verdict. Those circumstances have not yet arisen and, until they do, you should consider that your verdict of guilty must be unanimous'
That usually follows a direction to the effect that the verdict must be unanimous ...
The advantage[s] of a direction such as that to which we have referred are threefold. First, it is frank with the jury. It does not pretend that majority verdicts are not possible. Secondly, it does not confuse them with premature and largely irrelevant information about the effect of s 47 of the Juries Act . Thirdly, it makes it clear that their verdict should be unanimous and encourages them to put the possibility of a majority verdict out of their minds."
The advantages referred to by the Victorian Court of Appeal are equally applicable to criminal trials in NSW. “

Suggested directions are available at Judicial Commission at

Majority verdicts – reasonable period of deliberation – incorrect directions on availability of majority verdict

In Hunt [2011] NSWCCA 152 the CCA (Tobias AJA; Johnson and Hall JJ agreeing) held that the judge failed to comply with ss 55F and 56 of the Jury Act.

s 55F(2) provides a majority verdict may be returned if –

"(a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings, and

(b) the court is satisfied, after examination on oath of one or more of the jurors, that it is unlikely that the jurors will reach a unanimous verdict after further deliberation."

s 56(1) provides the Court may discharge the jury if it finds, after examination of one or more jurors, that it is unlikely the jurors will reach a unanimous or majority verdict under section 55F.

Section 56(2) provides the Court may not discharge the jury if it finds, after examination of one or more jurors, that it is likely the jurors will reach a majority verdict under s 55F.

In this case, the jury retired and at two hours sent a note to the judge that it could not reach a unanimous verdict. The judge gave a perseverance direction under Black v R (1993) 179 CLR 44. A second similar note followed. The judge then examined the foreperson at 4 1/2 hours. The foreperson said the jury could only reach a majority verdict. The judge then told the jury the time for a majority verdict had not yet arrived. A third similar note followed. The judge directed the jury (at 6 hours) that he could not take a verdict until 8 hours. The jury delivered its majority verdict straight after the 8 hours was up. Allowing the appeal and ordering a new trial, the Court said:

. “It is not without controversy as to what may be included and excluded when calculating the minimum time span for deliberation. Judicial consideration is required to establish that the jury has in fact deliberated for not less than 8 hours and, if necessary, for a longer period where the nature and complexity of the issues so requires. The statutory pre-condition referred to in s 55F(2)(a) is not satisfied by a trial judge simply acting upon the lapse of the minimum period of 8 hours, let alone 8 hours since the jury first retired. It would be prudent for trial judges to avoid the risk of miscarriage by refraining from acting soon after the estimated expiry of eight hours where there is any ambiguity about a component part of that minimum span of time: AGW [2008] NSWCCA 81 per Grove J at [24]-[25]”: at [24].

. In this case, neither the trial judge nor counsel exercised this necessary prudence to which Grove J referred in AGW, This involved a failure to comply with the procedural requirements of a trial as to constitute a miscarriage of justice: at [25].

. The judge’s questioning of the foreman was premature. No enquiry of the jury for the purpose of s 56(2) should have been made until the point had been reached at which a majority verdict was capable of being taken: at [26]. Questioning the foreman and then directing the jury that the availability of a majority verdict was a real possibility, had the potential to distract the jury from its primary obligation to reach a unanimous verdict and thus undermined the Black direction. This was sufficient of itself to cause the trial to relevantly miscarry: at [27], [31]-[32].

The Court said:

“[33] In our view, it follows from the foregoing that when a Black direction is given in response to an indication by the jury that it is deadlocked or otherwise unable to reach a unanimous verdict, it would be prudent that, generally speaking, no subsequent direction should be given which does other than continue to exhort the jury to strive for a unanimous verdict prior to the expiry of a minimum 8 hours of deliberation (and if necessary, a greater period having regard to the nature and complexity of the issues in the case) and that this is so notwithstanding that the jury may continue prior to the expiry of that period to advise the court that it is unable to reach a unanimous decision. In other words, if the jury indicates it is deadlocked before the time has come to consider a majority verdict, it should always be encouraged to continue its deliberations and to strive for a unanimous verdict without being advised that the time for accepting a majority verdict is imminent, or that such a verdict may be taken after the expiry of a particular period of time ( RJS (2007) 173 A Crim R 100 at [23] and note [24]). “

Evidence Act s 20 (3) – Comment by Crown on failure of appellant’s spouse to give evidence prohibited

Section 20(3) Evidence Act 1995 states: "The judge or any party (other than the prosecutor) may comment on a failure to give evidence by a person who, at the time of the failure, was: (a) the defendant's spouse or de-facto spouse..."

In DJF [2011] NSWCCA 6; (2011) 205 A Crim R 412 the applicant was convicted of sexual assault offences. The Crown said during address, , "You've heard the evidence from the officer that there's no statement [having] been obtained from...the wife of the accused who you may have...expected would have been called, considering the incident which is alleged to have occurred in the spa": Allowing the appeal, the CCA held that the comment infringed s 20(3) and resulted in a miscarriage of justice.

The Crown submitted that the comment was not on the failure of the appellant's wife to give evidence, but on the different matter of her failure to make a statement to the police; or put another way on the failure of the Crown to call her to give evidence. The Crown submitted that the Crown Prosecutor was only explaining that the Crown had not called her because she had not made a statement.

The CCA did not accept this submission. The evidence of which the jury was reminded was that the appellant's wife had declined to give a statement on legal advice. The Crown Prosecutor suggested that the jury "may have ... expected [the appellant's wife] would have been called", not confining the expectation to calling by the Crown. The suggestion extended to an expectation that the defence might have called the appellant's wife. In the particular circumstances, this was a comment on the failure of the appellant's wife to give evidence: at [4].

Evidence Act s 79 – Expert evidence that coded language used in telephone intercepts was consistent with drug dealing was admissible

In Chen [2011] NSWCCA 145, involving drug supply, the police officer gave expert evidence that the coded language was consistent with that used by persons in drug dealing. The officer’s expertise came from his specialised knowledge from experience in investigating the “criminal drug milieu.” The CCA said the evidence was properly admitted as expert opinion given that the officer had specialised knowledge: [70]. Section 79 Evidence Act allows opinion evidence where a witness had specialised knowledge based on training, study and experience. The officer’s evidence was only in relation consistency of language used. This was distinct from other cases where experts had stated an opinion that the person was in fact talking about drugs and not using language which could have been the language used in drug trading: at [74]-[78].

Evidence Act s 79 – Body mapping – Expert evidence that the appellant’s appearance was similar to one of the offenders was inadmissible

In Morgan [2011] NSWCCA 257 expert evidence that the appellant’s appearance was similar to one of the offenders was inadmissible as the observations were not based upon specialised knowledge. CCTV footage showed two robbers committing the alleged offence. Expert evidence from Crown witness Professor H (a biological anthropologist and anatomist with expertise in “body mapping”) that there was a “high level of anatomical similarity” between the offender in the CCTV images and the appellant was admitted. Professor H did not actually identify the appellant as the offender.

Allowing the appeal and ordering a new trial, the CCA said that it was an error to admitted Professor H’s evidence that the appellant was similar in appearance to one of the robbers: at [102]. Section 79 Evidence Act allows the opinion evidence if the witness has specialised knowledge based on their training, study or knowledge and their opinion is wholly substantial or substantially based on that knowledge.

The question is whether the witness had specialised knowledge, beyond the reach of lay people, which he brought to bear in arriving at his opinion. That question is to be answered by reference to the task which the witness undertook. Here, the task was to make an anatomical comparison between relatively poor quality CCTV images of a person covered by clothing from head to foot with images of the appellant. Applying his specialised knowledge, Professor H claimed he was able to detect not just a measure of similarity but "a high level of anatomical similarity" between the two persons. How he was able to do that when no part of the body of the offender in the CCTV images was exposed was never satisfactorily explained: at [139]-[140]. Professor H’s observations of the offender's body shape through his clothing, his observations about the shape of his head and face were clearly vital to his conclusion that there was a high degree of anatomical similarity between that person and the appellant. It did not appear that those observations could be said to be based upon a specialised knowledge of anatomy: at [144].

Evidence Act s 137 – Unfairly prejudicial evidence ought to have been excluded by court even where accused made no objection

In Chand [2011] NSWCCA 53 the applicant was charged with violence offences against his neighbour. A police witness for the Crown gave evidence of 20 COPS entries regarding the appellant. The CCA said that although some entries went to motive, others were irrelevant: at [79]-[80]. These entries were prejudicial to the appellant and accordingly the balancing exercise required by ss 135 and 137 Evidence Act needed to be carried out. The fact no application was made by the appellant under s 137 did not remove that obligation on the part of the Court: at [82]-[82]; Chai [2002] NSWCCA 512. That there was no direction as to the way in which the COPS entries could be used (in particular that they could not be used on a character or credit basis), increased the risk the evidence would be misused by the jury in an unfair way: at [85]. However, although the COPS entries were inadmissible under s 137 (the probative value being outweighed by the danger of unfair prejudice), no substantial miscarriage arose from their admission: [96]-[100].

Failure to leave Carey defence to jury in drug supply

In Alliston [2011] NSWCCA 281 the appellant was jointly charged with her partner of supply large commercial quantity of drugs. She was convicted by a jury of the lesser offence of supply commercial quantity. Drugs were found in the appellant’s purse in a car in which she was a passenger and her partner was driving. The appellant said these drugs were her partner’s. The Crown at trial relied on the deeming provision in s29 Drug Misuse and Trafficking Act (by which a person who has in their possession not less than the trafficable quantity of a prohibited drug shall be deemed to have the prohibited drug in their possession for supply, "unless (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply …)”.

In Carey (1990) 20 NSWLR 292 at 294 it was held that where an accused has drugs in their physical control but intends to return them to the owner, the accused will not have the drugs in possession for the purposes of supply. It is necessary for the party raising the Carey defence to demonstrate that the evidence is capable of proving that possession of the drugs was merely momentary or transient and that the accused intended to return the drugs to their owner: at [19], [28] referring to EAS (unreported NSWCCA 26 July 1990; Tuckey (1991) 57 A Crim R 468; Frazer [2002] NSWCCA 59

McClellan CJ and Fullerton said that the trial judge erred in not giving a Carey direction. It was open to the jury to conclude that the appellant intended to return the drugs to her partner even though she did not expressly say this in her evidence: at [34]. (Simpson J disagreed on this issue: at [133]-[134]). However, the Court dismissed the appeal on the basis there was no miscarriage of justice as the appellant was convicted of the lesser offence in respect of which a “Carey defence” was not available: at [38]. Per McClellan CJ at CL:

[33] To my mind it is clear, as her Honour acknowledged, that the appellant was in possession, at least, of the drugs found in her purse. The jury must also have found that she was in possession of the drugs secreted elsewhere in the car. However, the fact that she was in possession of the drugs does not mean that she was guilty of the offence of supply. In accordance with the decision in Carey before she could be guilty of supply the jury would have to be satisfied that she was both in possession of the drugs and was holding them for the purpose of supply rather than returning them to Mr Schirmer who had continuing control over them.

[34] Although the appellant did not actually say in her evidence that her intention was to hold the drugs and later return them to her partner, in my opinion it was it was open to the jury to conclude, from her responses to the questions which she was asked as to how she came into possession at least of the drugs in her purse, that this was in fact the case. In relation to those drugs the “Carey defence” should be have been left to the jury and accordingly ground 1 of the appeal should be accepted. To that extent the trial judge’s summary of the defence case was also inadequate. However, lest there be a misunderstanding, I express no view about the manner in which a jury might have resolved this issue.”

Section 281 Criminal Procedure Act – Admissions were not made during course of official questioning

Section 281 Criminal Procedure Act states that an admission, made by an offender to an investigating official during the course of official questioning, is not admissible unless tape-recorded. In Bryant [2011] NSWCCA 26; (2011) 205 A Crim R 531 it was held that admissions made to a custody manager were not within s 281 - they were not made during the course of official questioning and were therefore admissible.

When being charged, the custody manager (the Station Sergeant) said to the appellant, "Do you understand that you are going to be charged with several armed robbery offences?" The appellant responded, "Yes, I don't know about the others but I admitted to three. The two here and one in Canberra". The Sergeant said, "As these are serious offences that involved violence that happened over a period of time I will be refusing bail. That means that I will try to get you before a magistrate this afternoon. What happens from there is the decision of the magistrate, do you understand that?" The appellant said, "Yes, I don't know why I did it".

Applying Kelly v The Queen (2004) 218 CLR 216, the CCA said that “official questioning” meant the formal (ERISP) interview conducted before the appellant was delivered to the custody manager: at [147]. The custody manager was performing her duty of informing the appellant of procedures and to make sure he understood them. The conversation did not amount to “questioning … in connection with an investigation of the commission … of an offence”: at [148]-[150]; Naa (2009) 76 NSWLR 271 at [77].

Directions: proving recklessly under ‘Recklessly cause grievous bodily harm’ (s 35(2) Crimes Act) the Crown must establish the accused had foresight of the possibility of grievous bodily harm

In Blackwell [2011] NSWCCA 93; (20110 208 A Crim R 392 the CCA said that to prove recklessly under ‘Recklessly cause grievous bodily harm’ (s 35(2) Crimes Act) the Crown must establish the accused had foresight of the possibility of grievous bodily harm. The mere foresight of the possibility of ‘some physical injury’ is not enough: at [82]; Coleman (1990) 19 NSWLR 467 not followed. The jury should have been directed in terms that if the appellant was to be found guilty they had to be satisfied that he realised that by thrusting the glass into the victim’s face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted: at [78].

Section 35(2) is a relatively new offence which commenced on 27 September 2007. The Judicial Commission states: “The holding in Blackwell extends beyond offences under s35(2). The problem that occurred in Blackwell only arises where an offence provides for a specific form of harm, such as offences with the ingredients “recklessly inflicts actual bodily harm” (ss 61J, 61JA, 61K, 66C, 80A, 95, 109-113, 154C and 195) or “recklessly by any means … wounds” (ss 60(3)-(3A), 60A(3), 60E(3)) or “recklessly inflicts … any grievous bodily harm”: (ss42, 60E(3)(b)).” See Judicial Commission, Special Bulletin No 23 (8.6.2011), Criminal Trial Bench Book available at:

Judicial questioning in judge alone trials

In FB [2011] NSWCCA 217 the CCA discussed the principles applicable to judicial questioning in a criminal trial without a jury. Such trials may well become more prevalent: see s 132 Criminal Procedure Act. The Court (Whealy JA; Buddin and Harrison JJ agreeing) made the following observations:

. A judge sitting alone is entitled within reasonable limits to explore issues of fact: at [90]; , in Galea v Galea (1990) 19 NSWLR 263 at 281-282, Yuill v Yuill [1945] 1 All ER 183; Jones v National Coal Board [1957] 2 QB 55 at 64..

. A judge must, within reasonable limits, intervene wherever it is necessary to ensure that the issues are clarified and that justice is dispensed within reasonable limits of efficiency: at [93].

. In judge alone trials the circumstances in which a judge may legitimately intervene will be wider than a jury trial. They will, depending on the circumstances, be many and varied. It is impossible, indeed undesirable, to mark out the outer limits of appropriate questioning. Much will depend on the manner in which it is done, the timing with which it occurs and the opportunities that are given to the parties to deal with answers that may be given by a particular witness. It would be quite inappropriate to restrict the capacity of a trial judge sitting alone to clarify matters where clarification is relevant resolve issues before the court: at [97].

. A judge sitting alone may, in the course of clarifying the evidence, involuntarily or inevitably assist either the prosecution or the defence. There is no principle requiring a judge in this situation to stay mute, especially where a lack of clarification will hinder the fact finding process: at [109].

In this case the judge's questioning was relevant to an issue that needed clarification. The questioning was polite and generally occurred at the end of cross-examination or evidence-in-chief: at [103]. The judge's questions did not appear to intend to assist the prosecution: at [109]. The appeal was dismissed.

Manslaughter - liability of drug suppliers

In Burns [2011] NSWCCA 56; (2011) 205 A Crim R 240 the Court upheld the applicant’s conviction for manslaughter on the basis that the applicant had supplied drugs to the victim from which the victim had died. The applicant and her husband sold methadone to the victim from their home and the victim injected it in their presence. The Court held that the manslaughter conviction on the basis of gross criminal negligence or by unlawful and dangerous act was open on the evidence: at [165]. Dismissing the appeal, McClellan CJ at CL (Howie AJ and Schmidt J agreeing) discussed English authorities and saw no reason to take a different approach to the issue that has been taken in those cases: at [112]. NOTE: Special Leave to Appeal to the High Court was granted on 10.2.2012.

Environmental Law: Invalid notice from EPA for information and records
This is a case from the Court of Appeal. In D’Anastasi v Environment, Climate Change & Water NSW [2011] NSWCA 374 the EPA issued a notice under s 193(1) Protection of the Environment Operations Act 1997 to the appellant asking questions about dead animals on his land and requiring production of records relating to pesticide use. Section 193 allows a notice to be issued requiring a person to provide information or records in connection with any matter within the responsibilities and functions of the relevant regulatory authority. The Court of Appeal considered whether the notice fairly indicated the matter within the responsibilities and functions of the regulatory authority about which information was required. The Court said the notice was invalid as it failed to indicate the “matter” with which it was concerned: at [54]-[55]. A notice must set out the relationship between the information sought and the matter in respect of which it is sought. The description of a matter must go beyond a mere assertion that it may be a contravention against a particular section: at [43]. There was nothing to prevent the notice from stating the EPA was investigating “the misuse of pesticides in baits laid outside rabbit warrens or around olive trees on the premises in late February 2010 and needs information to assist in that investigation”: at [39].

Environmental Law: Prosecution under Protection of the Environment Operations Act 1997 - appeal against interlocutory decision

In Queanbeyan City Council v EPA [2011] NSWCCA 108 the Council appealed against a decision of the NSW Land and Environment Court (LEC). The Council was charged with an offence of polluting waters (s120 Protection of the Environment Operations Act 1997) when its sewage treatment plant discharged untreated sewage into a river on two occasions. The LEC dismissed the Council’s application for a permanent stay of prosecution on grounds that the Council could not demonstrate that the licence must have been issued for a pumping station; that even if a licence were issued there was no statutory defence available; and that overflow was not causally related to work carried out by the Council as consequence of prevention notices issued by the Environmental Protection Authority. The Council appealed to the CCA on a number of grounds including a denial of natural justice; error of statutory construction; and failure to properly identify the proper legal test for whether a permanent stay ought to be granted. The CCA dismissed all grounds. The appeal was allowed in part, only to the extent that the costs order was set aside.


The Judicial Commission Statistics for the Court of Criminal Appeal for 2011 sentencing and crown appeals have not as yet been finalised. The statistics for 2000-2010 are set out below. What can be gleaned from the available statistics is that successful severity appeals reached a high point of 46% in 2004, and fell progressively to 34.2% in 2009. In 2010 the percentage of successful appeals rose to 38.9%. Successful crown appeals reached a low point of 49.2% in 2003 and there has been an increase to 71% in 2010.

Severity appeals *

Number of appeals
Appeals Allowed
Percentage %

Crown appeals *

Number of appeals
Appeals Allowed
Percentage %
Figures for 2000-2009 from JIRS.



1. Muldrock v The Queen [2011] HCA 39; (2011) 281 ALR 652
(Appeal from NSW) Appeal allowed. This case is discussed at p.1 of this Paper.

2. Green v The Queen [2011] HCA 49: (2011) 281 ALR 223
(Appeal from New South Wales)
Appeal allowed. In Green and Quinn [2010] NSWCCA 313 the CCA held that on a Crown appeal the Court can raise the sentence of a respondent while the sentence of a co-offender remains unchanged even though a justified sense of grievance may result. Disparity was not an outright bar to the success of a Crown appeal. The High Court allowed the appeal and ordered that the appeal to the CCA be dismissed. The first ground of appeal was that the CCA erred in allowing the Crown appeal thereby creating a disparity between the appellants' sentences and that of a co-offender T. The second ground of appeal concerned the CCA finding, without any argument from the Crown or intimation by the CCA, that T’s sentence was manifestly inadequate (T’s sentence was not the subject of any appeal). The High Court held, by majority, that the CCA failed to give adequate weight to the purpose of Crown appeals and the importance of the parity principle. The CCA also erred in allowing the appeals partly on the basis that T’s sentence was manifestly inadequate as this was not raised in argument. The intervention of the CCA, created "unacceptable disparity" between the new sentences which it imposed and the sentence that stood unchallenged in respect of T. The result was that the CCA became "the instrument of unequal justice”: at [4]. Taking into account the consequent disparity and the significant delays that had occurred in the appellate process, the CCA ought to have exercised its discretion to dismiss the appeals: at [4]-[5]. Further, the CCA was not entitled to allow the appeal on the basis that the sentence imposed upon T was manifestly inadequate. To do so involved a breach of procedural fairness: [4]-[5].

3. SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
(Appeal from NSW)
Appeal allowed. SKA was convicted of 5 counts of child sexual assault. On counts 4 and 5, the victim could not specify a date, only that it was around Christmas 2006. The date these incidents took place was critical because SKA gave alibi evidence for 22 - 24 December 2006. The CCA dismissed SKA’s conviction and sentence appeal. The applicant's ground of appeal in the CCA relevant to the proceedings in the High Court was that the verdicts of the jury were perverse and not supported by the evidence: s 6(1) Criminal Appeal Act 1912. The High Court held that the CCA had incorrectly concerned itself with whether, as a question of law, there was evidence to support the verdicts, rather than making its own assessment of the evidence. The High Court held it was critical that the CCA determine the date it was alleged SKA committed counts 4 and 5. The failure to do this led the CCA into error when considering the sufficiency of evidence to support the jury's verdict: at [20] – [25]. The High Court allowed the appeal and remitted the matter to the CCA for rehearing.

4. Wainohu v NSW [2011] HCA 24; (2011) 243 CLR 181
(Appeal from NSW)
The High Court declared invalid the Crimes (Criminal Organisations Control) Act 2009 (NSW) (“motorcycle gang” legislation) which had come into force on 3.4.2009. The Court held that the Act undermines the institutional integrity of the Supreme Court of NSW.

5. Lithgow City Council v Jackson [2011] HCA 36; (2011) 281 ALR 223
(Appeal from NSW Court of Appeal)
Appeal by the Council allowed. The respondent was found badly injured in a park at the base of a 1.41m wall. He claimed he fell down vertical face of wall and could not recall falling due to injuries. The respondent sought to rely upon a statement made in the patient record by ambulance officers attending the scene:"? Fall from 1.5 metres onto concrete". The CA held the statement was admissible opinion and could be used to establish causation. The High Court allowed the appeal by the Council ruling that the statement (the “impugned representation”) was inadmissible. The High Court held the impugned representation was irrelevant because it was so ambiguous it could not rationally affect the assessment of the probability of a fall from the vertical head wall; that the representation was not an “opinion”; and that the representation did not satisfy the requirements under s 78 Evidence Act and was therefore not an exception to the opinion rule: s 76 Evidence Act.


6. Dasreef P/L v Hawchar [2011] HCA 21; (2011) 243 CLR 588
(Appeal from NSW Court of Appeal)
Appeal dismissed despite errors at trial and by Court of Appeal. H sued Dasreef P/L over contracting silicosi in the Dust Diseases Tribunal. On voir dire, Dr B (a chartered chemist and retired academic) gave an estimate or “ballpark” figure of the silica dust H was exposed to. The judge used evidence by Dr B and another expert to calculate the levels of silica dust to which H was exposed. The judge also stated that Court of Appeal authority permitted him to take his experience in the Tribunal into account in determining what caused H’s silicosis. The judge found in favour of H. The judge did not give a ruling on the admissibility of Dr B’s evidence until judgment. The High Court said it was an error by the judge not to give a ruling and in using Dr B’s evidence. “As a general rule, trial judges confronted with an objection to admissibility of evidence should rule upon that objection as soon as possible": at [19]. Also, Dr B did not have the training and expertise necessary for his evidence to be admissible via s 79 Evidence Act (Exception: opinions based on specialized knowledge) as an exception to the opinion rule in s 76 Evidence Act.

7. Momcilovic v The Queen [2011] HCA 34; (2011) 280 ALR 221
(Appeal from Victoria)
Appeal allowed. The Applicant was convicted of trafficking under s 71AC (VIC) Drugs, Poisons and Controlled Substances Act 198. The drugs were found in the applicant’s unit. The drugs belonged to her boyfriend who often stayed. Both the applicant and boyfriend both claimed the applicant was unaware of the drugs. The Crown relied on the presumption for deemed possession in s 5. The Vic CA ruled that s.5 created a legal burden of proof on an accused and applied to the offence of trafficking; and also made a declaration under s.36(2) (VIC) Charter of Human Rights and Responsibilities Act 2006 that s.5 is inconsistent with the presumption of innocence under s.25(1) of the Charter. As this has no more than a declaratory effect the appeal was dismissed. Allowing the appeal and ordering a new trial, the High Court Appeal held that s 5 imposes a legal burden of proof on an accused, not an evidentiary one as argued for by the applicant. However, s does not apply to the offence of trafficking under s 71AC – the trial judge was in error in doing so. The Court also held that there is no inconsistency between the offence of trafficking under the State legislation and the new offence of trafficking under s.302.4(1) Cth Criminal Code.

8. Bui v DPP (CTH) [2012] HCA 1; (2012) 284 ALR 445
(Appeal from Victoria)
Appeal dismissed. The appellant was sentenced for the Commonwealth offence of importing prohibited drugs. The Court considered whether Victorian state provisions in relation to double jeopardy apply to the sentencing for Commonwealth offences - ss 289(2), s 290(3) Criminal Procedure Act (Vic); s 80 Judiciary Act (Cth). The Court found that Judge-made law of double jeopardy is not picked up by s.16A Crimes Act (Cth): De La Rosa (2010) 273 ALR 324. The reference in s 16A(m)(2) to ‘mental condition’ of the offender does not include a presumption of double jeopardy: at [21]-[23]. The Court further considered that there was no gap in the Commonwealth sentencing law that required the application of double jeopardy principles under s.80 Judiciary Act: at [27]-[28]. The Court concluded that the Victorian provisions are not required because the principle of double jeopardy does not apply to Commonwealth sentences: at [29].

9. Cth DPP v Poniatowska [2011] HCA 43; (2011) 282 ALR 200
(Appeal from South Australia)
Appeal by Cth DPP dismissed. The respondent received single parenting payments from Centrelink and at the same time received payments of commission (but no wage) from her employer for selling building contracts. It was alleged that receipt of the commission reduced entitlement to Centrelink payments and the respondent had been receiving overpayments. The SA CCA quashed the respondent’s conviction finding the respondent was not under legal duty under the Social Security (Administration) Act 1999 (Cth) to advise Centrelink of commission payments because the respondent did not receive required notices under that Act. The High Court said the SA CCA was correct to hold that “the Code incorporates the general law principle that criminal liability does not attach to an omission, save the omission of an act that a person is under a legal obligation to perform”: at [29]. The law creating the offence does not make the omission of an act a physical element of the offence within the meaning of s 4.3(a): at [37]. Note: The Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) (assented to on 4.8.2011) inserted s 66A into the Administration Act (Cth) providing a general duty to inform the Department of changes to income and circumstances.

10. Stubley v Western Australia [2011] HCA 7; (2011) 242 CLR 374
(Appeal from WA)
Appeal allowed. The appellant, a psychiatrist, was convicted of sexual offences against two patients. The issue was of consent only. The Crown led evidence from three other females as to sexual misconduct. The High Court held that the evidence of the other females did not have significant probative value under s 31A(2)(a) Evidence Act (WA) and should not have been admitted into evidence. Because the question of whether sexual contact took place was admitted, the evidence was not relevant as evidence of a tendency to have sexual relations: at [64], [65]. The use of the evidence as proof of the appellant's tendency to engage in grave professional misconduct by manipulating young, vulnerable patients into having sexual contact with him could not rationally affect the likelihood that the complainants did not consent to sexual contact: at [66]-[74]. The conviction was quashed.

11. Lacey v Western Australia [2011] HCA 10; (2011) 242 CLR 573
(Appeal from Queensland)
Appeal allowed. The applicant was convicted for manslaughter. His sentence was increased on a successful Crown appeal to the Court of Appeal. The High Court had to consider whether an appeal court has power to vary sentence on a Crown appeal without finding demonstrated or inferred error on the part of a sentencing judge. The High Court held that the appellate jurisdiction conferred upon the Court of Appeal by s 669A(1) Criminal Code (Qld) requires that error on the part of the sentencing judge be demonstrated before the Court's "unfettered discretion" to vary the sentence is enlivened. The judgment contains a summary of principles applicable to Crown appeals at [8]-[21] which includes NSW crown appeals. There is also an interesting summary of types of appeals (ie rehearing, strict appeals and denovo) at [57]-[60].

12. Braysich v Western Australia [2011] HCA 14; (2011) 243 CLR 434
(Appeal from WA)
Appeal allowed. Re-trial ordered. The appellant, a stockbroker, was convicted of 25 counts of creating a false or misleading appearance of active trading in securities. The appellant sought to rely on a statutory defence, that the purpose for which he caused the relevant trades to take place was not, or did not include, the purpose of creating a false or misleading appearance of active trading (the “proscribed purpose"). The trial judge ruled that the appellant had not raised the statutory defence and refused to allow expert evidence to rebut the testimony of a Crown expert witness. The High Court held that it would be open to a reasonable jury to conclude that the appellant did not have the proscribed purpose and ought to be acquitted.

13. Roach v the Queen [2011] HCA 12; (2011) 242 CLR 610
(Appeal from Queensland)
Appeal dismissed. The applicant was convicted of assault occasioning actual bodily harm against his former partner. Evidence of previous assaults was admitted at trial. The High Court considered whether the trial judge ought to have applied Pfennig (1995) 182 CLR 461 and whether "viewed in the context of the prosecution case, there is a reasonable view of [the relationship evidence] which is consistent with innocence." Alternatively, if the evidence was admitted, if the jury ought to have been directed that they could not rely upon the evidence unless satisfied of its truth beyond reasonable doubt. The Court considered ss 132B and 130 Evidence Act 1977. (Section 132B allows relevant evidence of the history of the domestic relationship between the defendant and the victim to be admissible in proceedings. Section 130 upholds a Court’s power to exclude evidence if satisfied it would be unfair to the accused). The Court said that the sole basis for admission of evidence under s.132B is relevance, but must take into account s.130 which preserves common law discretion to exclude evidence on grounds of unfairness: at [30]. The rule in Pfennig is inconsistent with common law discretion and therefore does not apply to s.130: at [36]-[38]. Also. directions that jury must be satisfied of additional evidence beyond reasonable doubt were not necessary because evidence was not tendered as propensity and trial judge had already warned the jury against use of the evidence as propensity evidence: at [49].

14. Hargraves v The Queen; Stoten v The Queen [2011] HCA 44; (2011) 282 ALR 214
(Appeal from Queensland)
Appeal dismissed. The appellants were convicted of conspiracy to dishonestly cause loss to the Commonwealth (s 135.4(3) Criminal Code (Cth). When instructing the jury, the judge said that assessing the evidence they could consider a witness’ interest and “self-protection.” The appellant said this infringed the principle in Robinson v The Queen (1991) 190 CLR 531 – that a judge should not direct the jury that the accused’s interest in the outcome of proceedings is relevant to assessing his / her credibility as a witness. The Court dismissed both conviction appeals.

The court said that Robinson did not establish a new principle. It was the application of a more general principle (applied in other cases) that directions should not deflect the jury from its fundamental task of deciding whether the prosecution had proved its case beyond reasonable doubt. Whether there has been on any other ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury. In every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury deflected the jury from its proper task: at [46]. The directions in this case did not deflect the jury from its task.

15. Handlen v The Queen; Paddison v The Queen [2011] HCA 51; (2011) 283 ALR 427
(Appeal from Queensland)
Appeal allowed. The appellants were convicted of importing drugs. The Queensland CCA found that the appellants had been convicted on an erroneous basis of joint criminal enterprise as the basis for liability did not exist under the Criminal Code (Cth) until s.11.2A was introduced after the trial was completed. The Qld CCA held that although a mistake was made as to the basis for liability, the evidence established guilt on the basis of accessorial liability and applied the proviso. The High Court held that the proviso should not have been applied, and allowed the appeal. The High Court found that the prosecution of the appellants upon a basis that was not known to law was a departure from the proper conduct of the trial. The departure was fundamental and constituted a miscarriage of justice: at [3], [47].

16. Moti v The Queen [2011] HCA 50; (2011) 283 ALR 293
(Appeal from Queensland)
Appeal allowed. An Australian citizen, being the Attorney General in the Solomon Islands, was wanted for prosecution in Australia for sexual offences. The Solomon Islands government terminated the applicant’s position and commenced deportation. The applicant had 7 days to appeal deportation in Solomon Islands - this advice was provided to the Australian government by the Australian High Commission. The High Commission was nonetheless ordered to issue travel documents for the applicant. The applicant was deported by the Solomon Islands prior to expiry of the appeal period. The Commonwealth DPP paid the complainant and her family money for expenses after statements were given to police. The High Court held the proceedings be stayed on the basis that the facilitation of deportation, knowing such deportation was unlawful, constituted an abuse of process. The payments to witnesses were not an abuse of process.



Aytugrul v R [2010] NSWCCA 272
Special leave granted 2.9.11. Case reserved. The presentation of DNA evidence in terms of exclusionary percentages and whether such presentation creates unfairness to an accused.

Burns v R [2011] NSWCCA 56; (2011) 205 A Crim R 240
Special leave granted 10.2.12. The nature of the duty of care in manslaughter by gross criminal negligence, manslaughter by unlawful and dangerous act and directions regarding causation.

Khazaal v R [2011] NSWCCA 129
Special leave granted 7.10.11. Terrorism - ss101.5(5) Criminal Code defence - if collection or making of document not intended to facilitate preparation for, engagement of a person in, or assistance in a terrorist act - whether respondent discharged evidential burden - whether evidence at trial suggested reasonable possibility that making of document by respondent not intended to facilitate assistance in terrorist act so as to engage defence.

King v R (2011) 57 MVR 373; [2011] VSCA 69
Special leave granted 2.9.2011. Case reserved. Whether error to direct jury that, in relation to dangerous driving, driving need only have significantly increased risk of hurting or harming others, and that driving need not be deserving of criminal punishment.

Baker v R [2010] VSCA 126
Special leave granted 28.10.11. Hearsay and Admissions - A and LM jointly tried murder - A found guilty and LM acquitted - whether evidence of LM's admissions admissible in exculpation of A - whether potential exception to hearsay considered in Bannon v The Queen (1995) 185 CLR 1 ought to be recognised and whether LM's admissions within scope of any such exception.

R v Getachew [2011] VSCA 164
Special leave granted 29.9.2011. Rape - Whether respondent able to hold belief that complainant gave consent where jury found beyond reasonable doubt that respondent knew or believed complainant asleep at time of penetration

Likiardopoulos [2010] VSCA 344; (2010) 208 A Crim R 84
Special leave granted 9.3.2012. Murder – Whether abuse of process for Crown to allege accused counselled or procured others to commit murder when none of the alleged principals were convicted of murder.




1. Crimes (Sentencing Procedure) Amendment Act 2010
Commenced 14.3.2011

The main amendments are to the Crimes (Sentencing Procedure) Act (CSPA):-

Aggregate sentences
The CSPA has been amended o allow for an aggregate sentencing scheme. The aim is to remove some of the complexity involved when sentencing offenders for multiple offences.

s 53A allows a court, when sentencing an offender for more than one offence, to impose an aggregate sentence of imprisonment instead of imposing a separate sentence of imprisonment for each.

s 49(2) provides that the term of an aggregate sentence of imprisonment must not be more than the sum of the maximum periods of imprisonment that could have been imposed if separate sentences of imprisonment had been imposed in respect of each offence to which the sentence relates. It must not be less than the shortest term of imprisonment that must be imposed for any separate offence; or, if the sentence relates to more than one such offence, must not be less than the shortest term of imprisonment that must be imposed for any of the offences.

s 44(2A)-(2B): a court that imposes an aggregate sentence of imprisonment in respect of 2 or more offences may set one non-parole period for all the offences after setting the term of the sentence. The term of the sentence that will remain to be served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances.

Guilty Pleas
Section 22 requires a court to take a guilty plea into account in passing sentence for an offence and allows a lesser penalty to be imposed.
s 22(1) (c) requires a court to take into account the circumstances in which an offender indicated an intention to plead guilty in passing sentence. I

s 22(1A) requires that any lesser penalty imposed by the court must not be unreasonably disproportionate to the nature and circumstances of the offence.

Power to reduce penalties for facilitating the administration of justice

Section 22A amended so that a court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise) (changes underlined).

Power to reduce penalties for assistance provided to law enforcement authorities
Section 23A(4) inserted so that a court that imposes a lesser penalty because the offender has assisted, or undertaken to assist, law enforcement authorities must indicate to the offender that the lesser penalty is being imposed for either or both of those reasons, state the penalty that it would otherwise have imposed, and state the amount by which the penalty has been reduced for each reason.

Mandatory requirements for supervision of sex offenders and prohibitions against child-related employment to be disregarded in sentencing
Section 24A inserted so that a Court must not take into account as a mitigating factor that as a consequence of being convicted of the offence, an offender is prohibited from applying or being in child-related employment.

Confiscation of assets and forfeiture of proceeds of crime to be disregarded in sentencing
New s 24B states that a court must not take into account, as a mitigating factor, the consequences for the offender of any order of a court imposed because of the offence under confiscation or forfeiture legislation (eg Confiscation of Proceeds of Crime Act 1989; Criminal Assets Recovery Act 1990, the Proceeds of Crime Act 2002 CTH)

Consultation with victim and police in relation to charge negotiations

New s 35A provides that a court must not take into account offences specified in a list of additional charges under s 32 in relation to an offence, or any statement of agreed facts, that was the subject of charge negotiations unless the prosecutor has filed a certificate with the court verifying that: (a) the requisite consultation has taken place or, if not, the reasons why; and (b) any statement of agreed facts arising from the negotiations tendered to the court constitutes a fair and accurate account of the objective criminality of the offender having or has been settled in accordance with prosecution guidelines.

Sentences for offences involving escape by inmates
New s 57 (1A) states a sentence of imprisonment to which this section applies must be imposed after any other sentence of imprisonment that is imposed in the same proceedings. Note that under the transitional provisions the amendments apply unless (a) a court has convicted the person being sentenced of the offence, or (b) a court has accepted a plea of guilty and the plea has not been withdrawn, before the commencement of the amendment concerned.

Crimes (Administration of Sentences) Act 1999
Section 135 General duty of Parole Authority - If the offender has provided post-sentence assistance, the Parole Authority may have regard to the nature and extent of the assistance (including the reliability and value of any information or evidence provided by the offender) and the degree to which the offender’s willingness to provide such assistance reflects the offender’s progress to rehabilitation: s 135(2A).

2. Crimes (Sentencing Procedure) Amendment (Children in Vehicles) Act 2011
Commenced 16.11.2011

The Act inserts a new s 21A(2)(p) into the Crimes (Sentencing Procedure) Act to make it an aggravating factor if a “prescribed traffic offence” is committed whilst a child under the age of 16 was a passenger in the offender's vehicle. A new s 21A(5C) states that certain prescribed offences will be taken to have been committed if the offence was part of a series of events involving the driver and the child was a passenger. A “prescribed traffic offence” is defined in s 21A(6) and includes various drink driving offences (under Road Transport (Safety and Traffic Management) Act 1999 and dangerous driving offences (under ss 51B, 52A Crimes Act 1900).

3. Crimes Amendment (Murder of Police Officers) Act 2011
Applies to offences committed after 23.6.2011

The Act inserted a new s 19B into the Crimes Act which requires a court to impose a sentence of life imprisonment where a police officer is murdered in the course of executing his or her duty where the person knew the person killed was a police officer. The person must have intended to kill or been involved in criminal activity risking serious harm to police officers.

Section 19B does not apply to an offender who is under the age of 18 years or one suffering a significant cognitive impairment: s 19B(3). A sentence under s 19B cannot be reduced under s 21 of the Crimes (Sentencing Procedure) Act 1999: s 19B(4).

4. Evidence Amendment Act 2010
Commenced 14.1.2011

Mutual recognition of certificates relating to the privilege against self-incrimination – ss.128, 128A
Amends section 128 and section 128A to provide for the recognition in NSW courts of certificates to the same effect as self-incrimination certificates and self-incrimination disclosure certificates given under sections 128 and 128A, respectively, if given under a provision of a law of a State or Territory declared by the regulations to be a prescribed State or Territory provision.

Unavailability of witnesses - Dictionary Definition
Substitutes definition to provide that a person is taken not to be available to give evidence about a fact if the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability.

5. Court Suppression and Non-publication Orders Act 2010

Commenced 1.7.2011

The Act confers a statutory power on the Supreme Court, Land and Environment Court, Industrial Court, District Court, Local Court and Children's Court to make suppression orders and non-publication orders. The Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court: s 4.

A court may, by making such an order, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of any party to or witness in the proceedings; or
(b) information that comprises evidence or is about evidence given in proceedings before the court: s7

The Act sets out the grounds upon which a court may make such an order including that the order is necessary to prevent prejudice to the proper administration of justice; the order is necessary to prevent prejudice to the interests of the Commonwealth, a State or Territory in relation to national or international security; or otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. The Act provides for the procedure for making an order, interim orders, where an order applies (which may be anywhere in the Commonwealth), and review and appeal. It is a summary offence to contravene an order.

6. Criminal Case Conferencing Trial Amendment Regulation 2011

Commenced 7.10.2011

The Regulation amends cl 6 of the principal Regulation to end the trial scheme of compulsory pre-committal conferences and codification of sentence discounts for guilty pleas under the Criminal Case Conferencing Trial Act 2008. The scheme required a court to allow a discount of 25% where an offender pleaded guilty in the Local Court any time before being committed for sentence. The Act does not apply to proceedings for which a court attendance notice is filed after 8 October 2011. The Act continues to apply to proceedings for which a court attendance notice was filed on or after 1 May 2008 and before 8 October 2011: s 5 Criminal Case Conferencing Trial Act 2008; cl 6 Criminal Case Conferencing Trial Regulation 2008; Criminal Case Conferencing Trial Amendment Regulation 2011.

7. Summary Offences Amendment (Intoxicated and Disorderly Conduct) Act 2011

Commenced 30.9.2011

Police may give an intoxicated person in a public place a move on direction where the officer believes on reasonable grounds that certain circumstances exist. Those circumstances are expanded so as to include ”disorderly” behavior: s 198 Law Enforcement (Powers and Responsibilities) Act 2002.

A new s 9 Summary Offences Act 1988 makes it is an offence for a person who is given a move on direction for being intoxicated and disorderly in a public place, who within the ensuing six hours is intoxicated and disorderly in the same, or another, public place. The offence is punishable by way of fine.

8. Identification Legislation Amendment Act 2011
Commenced in part on 1.11.2011

The Act amends the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) and other legislation to allow police, juvenile justice officers, corrective services officers and court security officers to require a person to remove a face covering for identification purposes. The main amendments to LEPRA are:

. Definition of “face” and “face covering”. “Face covering” means clothing, helmet, mask or any other thing worn by a person preventing their face from being seen: s 3

. A police officer may require a person to remove a face covering if it is to provide photographic identification or if it is required to identify the person or to provide other identification particulars: s 19A(1).

. Police officers exercising this power must ask for the person's co-operation and conduct the viewing of the person's face as quickly as reasonably practicable and in such a way that provides reasonable privacy (if requested): s 19A(3).

. Failure or refusal to comply with the requirement to remove a face covering without special justification is an offence: s 19B. “Special justification” is defined in s 19B(2) and includes a legitimate medical reason.

. A police officer may request a person to disclose their identity if the officer proposes to give them a move-on direction: s 11(2).

Other amendments are:

. A court security officer can require a person to remove a face covering if the person is seeking to enter court premises or the officer has arrested (or has grounds for arresting) the person: s 13A(1). A person who fails or refuses to comply with a requirement to remove a face covering, without special justification, is guilty of an offence: s 13A(3)-(5) Court Security Act 2005.

. Corrective services or juvenile justice officers may require a visitor to a corrective centre or detention centre to remove a face covering for identification purposes.

9. Director of Public Prosecutions (Disclosures) Amendment Act 2011
This legislation is discussed under Lipton [2011] NSWCCA 247, above.

10. Evidence Amendment (Journalists’ Privilege) Act 2011 (CTH)
Commenced 13.4.2011

A new Division 1A is substituted. Section 126H (‘Protection of journalists’ sources’) provides if a journalist has promised an informant not to disclose the informant’s identity, neither the journalist nor his employer is compellable to answer any question or produce any document that would disclose the informant’s identity. The court may, on application of a party, order that the provision is not to apply if satisfied the public interest in the disclosure of evidence of the informant’s identity outweighs any likely adverse effect of the disclosure on the informant or any other person; and the public interest in the communication to the public by the media.

11. Law and Justice Legislation Amendment (Identity Crimes and Other Measures) Act 2011 (CTH)

Commenced 3.3.2011

A new “Part 9 – Identity Crime” was inserted into the Criminal Code Act 1995 (Cth). Three new offences deal with the fraudulent use of another person’s identity:- Deal in identification information (s 373.1); Possess identification information (372.2); Possess equipment to make identification information (s 372.3). The penalties range from 3 to 5 years imprisonment.




Annexure C - Supreme Court Cases

s 114 Evidence Act – “an identification” can include a phone call to police shortly after commission of offence
In DPP v Walford [2011] NSWSC 759 the respondent was charged with breached an AVO that he not to go within 100 metres of the complainant’s home. Shortly following the offence, the complainant telephoned the police to say she saw the respondent nearby. She later made an in-court identification at the hearing. The magistrate held the in-court identification to be identification evidence and ruled it inadmissible as the police should have held an identification parade. Davies J held the magistrate erred. In fact “an identification” was first made for the purposes of s 114 Evidence Act when the complainant made her out-of-court assertion to police in her telephone call. The magistrate ought to have found that the identification was made at or about the time of the commission of the offence and thus not reasonable to hold an identification parade: at [45]-[46].

Magistrate’s failure to give reasons
In DPP v Abouali [2011] NSWSC 110 the respondent pleaded not guilty to ‘Fail to stop at stop line at red light’ under r. 56(1)(a) Road Rules. The magistrate dismissed the matter, finding the offence not established because the infringement notice was issued for the wrong offence. Schmidt J allowed the DPP’s appeal, finding the magistrate erred in failing to give adequate reasons for her decision. The magistrate had a duty to give reasons, which is a necessary incident of the judicial process: at [6], DPP (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402. Schmidt J also found the magistrate misconstrued r.56 and r.59 of the Road Rules.

Forensic procedures – assumption there will be crime scene DNA to enable comparison with a forensic sample insufficient for reasonable belief under s 24(3)(b) Crimes (Forensic Procedures) Act
In LK v Commr Police [2011] NSWSC 458 the Magistrate made an order under s 24(3)(b) Crimes (Forensic Procedures) Act. That section states a Magistrate must be satisfied that there are “reasonable grounds to believe… the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed the offence.” Allowing the appeal, Fullerton J said that an assumption there will or might be crime scene DNA to enable a comparison with a forensic sample is insufficient to induce the reasonable belief in s 24(3)(b):at [28]. An application must be assess whether existing facts are enough for a reasonable belief.

Compellability of parent to give evidence
In LS v DPP [2011] NSWSC 1016 the plaintiff was charged with damaging property being his mother’s home (s 195 Crimes Act). The mother objected to giving evidence under s 18 Evidence Act, which enables a parent to object to giving evidence for the prosecution. Section 19 states that s 18 does not apply in proceedings for certain offences – listing s 279 Criminal Procedure Act 1986 which refers to a domestic violence offence against a spouse. The Magistrate held that a s 195 offence amounted to an offence referred to in s 279. Johnson J quashed the ruling. Section 279 applies only to a spouse, not a parent. Thus the Magistrate was in error to find that s 279 removed the mother’s right to object under s 18.

Section 281 Criminal Procedure Act applies to admissions concerning an indictable offence being dealt with summarily
In CL v DPP [2011] NSWSC 943 the plaintiff was convicted in the Children’s court of aggravated break and enter under s 112(2) Crimes Act. The plaintiff objected to the tender of admissions to police as they were not tape recorded as required by s 281 Criminal Procedure Act. That section applies to admissions relating to indictable offences “other than an indictable offence that can be dealt with summarily without the consent” of the accused: s 281(1)(c). The Magistrate erred in holding the admissions were admissible as s 281 did not apply to proceedings conducted summarily in the Children’s Court. Section 281(1)(c) applies only to Table 1 and 2 offences to Schedule 1 of the Criminal Procedure Act. An offence under s 112(2) is not listed in either Table. The Magistrate erred in finding that s281 applied only to offences on indictment: at [16]-[18]. Section 281(1)(c) looks to the type of offence not the nature proceedings.

Police powers of arrest without warrant
A police officer can arrest a person without warrant if they suspect on reasonable grounds that the person has committed an offence: s99(2) Law Enforcement (Powers and Responsibilities) Act 2002. However, an officer must not arrest a person unless it is reasonable to achieve particular purposes set out in s 99(3). In Williams v DPP [2011] NSWSC 1085 Harrison AJ held that the magistrate erred in concluding the offences of hindering police were proven without applying s99(3). Section 99(3) limits the operation of s99(2). At the relevant time, the elements of a lawful arrest were not established, and because this is an element of the offence of hindering police, the offence was unable to be established.

Annexure D – 2012 CASES

Duties of Prosecutor and Expert Witnesses
In Wood [2012] NSWCCA 21 the appellant was convicted of the murder of his girlfriend. Allowing the conviction appeal and entering an acquittal, the CCA ruled there was insufficient evidence to support the conviction: at [378]-[387].

The CCA considered the duty and obligations of the Crown to provide a fair trial (at [571]-[581] and [632]-[634]). In this case the following conduct of the Crown Prosecutor came under criticism:
. The Crown Prosecutor posed 50 questions for the jury inviting them to consider whether the accused had provided satisfactory answers. This breached Rugari (2001) 122 A Crim R 1 at [57] by reversing the onus of proof: at [604]-[617].

. The questions also breached s 20(2) Evidence Act 1995 by suggesting that a failure to answer the questions pointed to guilt: at [604]-[618]. The questions and the prosecutor’s comment that the answers “all point to the guilt of the accused” "suggest[ed] … the defendant failed to give evidence because the defendant was … guilty of the offence concerned.” The word “suggest” in s 20(2) includes comment which makes “reference, direct or indirect, and either by express words or the most subtle allusion” to guilt being a reason that an answer might not have been given: at [618].

. The Crown Prosecutor improperly invited the jury to draw conclusions on critical factual issues based on how they felt: at [625]-[626].

. The Crown Prosecutor improperly, and without any basis in evidence, made speculations as to the depression of the victim and the ‘typical’ behaviour of persons committing suicide, capable of seriously prejudicing the accused: at [627] – [631].

Criticism was further made of the Crown’s expert witness in that:

“[758] . [he].. took upon himself the role of investigator and became an active participant in attempting to prove that the applicant had committed murder. Rather than remaining impartial to the outcome and offering his independent expertise to assist the Court he formed the view from speaking with some police and Mr [B] and from his own assessment of the circumstances that the applicant was guilty and it was his task to assist in proving his guilt.”

Evidence Act s 90 – Admissions by young person to a support person
In JB [2012] NSWCCA 12 the 15 year old appellant (a Sudanese refugee) was convicted of murder having stabbed a bystander during a brawl. A youth liaison officer with the Sudanese community attended the police station. Alone in a room, the support person asked what had happened to which the appellant relied he had stabbed someone. The appellant submitted the admission should have been excluded under s 90 Evidence Act.

Dismissing the appeal, the CCA said there was no error in the judge admitting the evidence and it should not have been excluded under s 90: Em v The Queen (2007) 232 CLR 67. When the two were alone together the support person simply asked "What happened?" The question was entirely neutral and did not require the making of any admission. It did not place any pressure on the appellant or create any unfairness. The trial judge was correct to find that the appellant's admission fell into the category of an “unguarded incriminating statement.” The trial judge did not fail to take into account a relevant matter by not discussing at length the regulatory position of the support person and its underlying rationale. Nor was the judge incorrect to record that the relevant inquiry was into the appellant's state of mind, and whether his freedom to speak or refrain from speaking had been compromised. Each of these matters was a relevant consideration to the discretionary exercise under s 90: at [41].

The relationship between the support person and the appellant (a juvenile) did not fall within any of the restricted categories of protected relationship and it is not a "special relationship" under s 126A or some other privileged communication: at [29].

The CCA discussed the fundamental role of a support person which is to assist a juvenile in dealings with police. Such a role, though important, does not demand per se confidentiality in relation to admissions made freely by the juvenile to the support person outside the interview room, and in the absence of the police: at [31].

Evidence Act s 98 – Coincidence Evidence

In DSJ; NS [2012] NSWCCA 9 the appellants were charged with a number of counts of insider trading (s 1043A Corporations Act 2001 CTH). The Crown alleged DSJ obtained inside information through his employment which he passed to NS who used it to buy or sell shares. The trial judge held the evidence was admissible as coincidence evidence so that evidence regarding each count was admissible on each of the other counts. Section 98 Evidence Act 1995 states coincidence evidence is not admissible unless the court “thinks” the evidence will have significant probative value “either by itself or having regard to other evidence adduced or to be adduced”.

A five-judge Bench (Whealy JA; Bathurst CJ agreeing with additional comments; Allsop P and McCallum J agreeing with both; McClellan CJ at CL agreeing with Whealy JA) allowed the appeal and remitted the matter to the trial judge.

The judge erred in rejecting the need to recognise, in the evaluation process, the existence of alternative inferences inconsistent with guilt arising from the Crown evidence: at [130]. The judge correctly found it was not his task to intrude into the fact finding area which included the weighing and assessment of inferences and that this was a matter for the jury. However, this does not mean that in assessing s 98, a judge must ignore and put to one side altogether an alternative explanation that properly arises on the evidence inconsistent with guilt: at [130-[131].

The trial Judge was required to ask himself whether the available alternative inferences substantially altered his view as to the otherwise significant capacity of the Crown evidence to establish the facts in issue. And whether the alternative inferences deprived the coincidence evidence, taken with the other evidence, of its capacity to prove significantly the Crown case. The judge may well have found this was so. However, the alternative possibilities had to be recognised and taken into account and it was an error not to do so: at [130]-[132].

The Court also reconsidered Simpson J’s judgment in Zhang (2005) 158 A Crim R 504 at [139] where her Honour outlined a formulation regarding the admissibility of coincidence evidence. The Court said that Justice Simpson’s formulation focussed on the evaluation to be performed by the trial judge and sought to explain in a practical manner the ‘process’ to be undertaken. It did not intend to supplant or replace the language of s 98: at [67]. A judge is required to ask whether a hypothetical jury would be likely to find the evidence of importance or of consequence in coming to a conclusion about matters in issue: at [71]. A judge is required to take the evidence at its highest, and to determine whether it has the capacity to be of importance or of consequence in establishing the fact in issue: at [75]-[76]. In determining whether the evidence has significant probative value under s 98, the judge must consider whether there is a real possibility of an alternate explanation inconsistent with the guilt of the offender: at [78]-[82].

Evidence Act 138 – Undated search warrant
In Sibraa [2012] NSWCCA 19 the police used a search warrant that had been signed but not dated by the Magistrate authorising the warrant. The trial judge found the police reckless within s.138(3)(e) Evidence Act and excluded evidence obtained during the execution of the search warrant. Allowing the appeal, the CCA found the judge had erred in finding recklessness on the part of police. On the facts it was not necessarily unreasonable for the police to have expected the Magistrate would have dated the document at the time of signing nor to have failed to scrutinise the document to check if there were any defect or omission. The CCA held the identification of the nature of the defect was an important consideration in the balancing exercise under s 138.

Cross-examination of accused – Rule in Browne v Dunn
In Lysle [2012] NSWCCA 20 the appellant was convicted of child sexual assault offences. During cross-examination the appellant was asked the following questions by the Crown:

Had you told your barrister about that episode before (the complainant) gave evidence?
Did it concern you that he didn't ask her any questions about that when he was cross-examining her?
Did you bring to his attention when he was cross-examining her that he hadn't ever put to her that there was an occasion where you had carried her from her bed up _?
Did it concern you that your barrister didn't ever put to (N) that she was aware that you were going to go into the caravan and take (the complainant) out?
The CCA held that the first and third questions were unfair and should not have been asked. Although the Appellant could claim professional privilege under s118 Evidence Act 1995, an accused person should not be asked, certainly for the first time in the presence of a jury, as to the content of conversations with his legal advisers. For an accused to deal with such a question properly, he is entitled to legal advice and the potential for prejudice is obvious. The two questions that commenced “Did it concern you …” were not unfair. However, on the evidence, all questions were irrelevant and inadmissible since they could not substantially affect the assessment of the appellant’s credibility as required under ss 102 and 103 Evidence Act. The appeal was however dismissed on the basis that there was no miscarriage of justice.

Although not necessary to the decision, RS Hulme J made the following observations regarding the application of Browne v Dunn:

“[40] …… In Llewellyn v R [2011] NSWCCA 66 at [137], Garling J in summarising principles he deduced from earlier authorities on the topic said of cross-examination of an accused predicated on a failure of his counsel to put something to a Crown witness:-
"(d) Except in the rarest of cases and only where a proper basis exists, cross-examination of the accused in this manner is highly and unfairly prejudicial to the accused, with the potential to undermine the requirements of a fair trial: R v Birks at 703D per Lusher AJ; R v Dennis at [45]-[46] per Spigelman CJ; Picker v R at [41]-[42] per Smart AJ."
[41] I would respectfully disagree with his Honour's reference to the "rarest of cases". ……….

[44] It may be that the caution that Crown Prosecutors have been told to exercise should inspire them to first raise the issue of any explanation for a contrast between the silence of an accused's counsel and evidence of an accused in the absence of the jury or, if they do not adopt that course, of going little or no further than drawing the contrast, merely asking an accused if he can give any explanation for the difference, and suggesting he has made up his evidence on the topic. Any explanation may involve a waiver of the confidentiality of communications by an accused with his legal advisers and that argues for at least some aspect of the matter being first raised in the absence of the jury. However, in an appropriate case the Crown is entitled to the benefit of the rule and, as was said in R v Scott , this requires that an accused be given an opportunity to provide an explanation. Nor should the Crown be obliged to lose such advantage as the rule provides by forewarning an Accused of too much in the absence of the jury. “

Admissions - Claim by Crown that appellant’s failure to deny charge amounted to an admission
In McKey [2012] NSWCCA 1 (child sexual assault) the Crown, in cross-examination and closing address, relied upon the failure of the appellant to discuss the alleged incident when put to him by the relatives of the victim. The CCA held the Crown used the appellant’s silence as a form of consciousness of guilt. The trial judge erred in failing to properly direct the jury as to how the evidence should be used.

The trial judge should have given a direction to the jury to guard against the unjustified drawing of an inference adverse to the appellant. The cross-examination unequivocally suggested the appellant's conduct constituted an implied admission. The jury should have been directed that, before they could infer that the appellant behaved as he did because he was conscious of his guilt, they were required to examine that inference to determine whether it was reasonable and justifiable; and were required to exclude any alternative inference inconsistent with guilt. The most obvious alternative inference that called for exclusion was that the appellant acted in accordance with advice to say nothing about the allegation to anyone: at [42].