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MAY SPOTLIGHT ON APPELLATE LAW DECISIONS
COURT OF CRIMINAL APPEAL & NEW SOUTH WALES SUPREME COURT
SENTENCING – appeal against sentence – co-offenders – different discounts for respective pleas – difference in accumulation due to applicant’s greater culpability and additional Form 1 offence – difference in non-parole period due to differences in motive, health needs and prospects of rehabilitation – disparity justified.
CRIMINAL LAW – murder trial – significant public interest in the trial proper – Court Suppression and Non-publication Orders Act 2010 – applications by accused and Crown that all evidence and submissions be suppressed pending conclusion of accused’s District Court trial – whether the public interest in preventing prejudice to the proper administration of justice outweighs the public interest in open justice. From Paragraph 11 of the judgement:
Put another way, accepting the fundamental public interest in maintaining the integrity of Mr Dawson’s trial in the District Court, the public interest in open justice is not outweighed, and is more importantly not “significantly outweighed”, by that public interest if the suppression order that is sought will, in lay terms, simply make no difference. Something that will, or that appears likely to, have no practical consequence, according to this argument, could nottherefore be “necessary”, even if it were highly desirable: see generally with respect to the meaning of “necessary” Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]-[31].
Decision Restricted [2002] NSWCCA 95
CRIME — Appeals — Appeal against conviction – manslaughter – whether trial judge failed to properly put the defence case in the summing up – requirement for a fair and balanced identification of the issues and respective cases – Rule 4.15 of the Supreme Court (Criminal Appeal) Rules – no request for further directions at trial – whether miscarriage of justice – consideration of weight to be given to jury’s advantage of seeing and hearing witnesses – whether summing up raised consciousness of guilt – whether error to instruct jury as to entitlement to give less weight to exculpatory statements than admissions – Bench Book direction – whether verdict unreasonable. This decision has not yet been published.
CRIME — Appeals — Appeal against sentence – aggregate sentence for offences involving dishonesty – concession by the Crown that sentencing judge was mistaken as to the maximum term of imprisonment for three offences on a s 166 certificate and as to the backdating of sentence – appeal allowed – re-sentence – affidavits tendered on re-sentence – whether more favourable subjective findings should be made.
Environment Protection Authority v Eastern Creek Operations Pty Ltd [2022] NSWCCA 97
CRIMINAL PROCEDURE — prosecution for non-compliance with statutory notice — ruling that notice invalid — classification of ruling as interlocutory or final — whether leave to appeal could be granted under s 5F Criminal Procedure Act 1986 (NSW)
ENVIRONMENT — validity of notice purportedly issued under s 191 Protection of the Environment Operations Act 1997 (NSW) requiring addressee to furnish information — whether the notice sufficiently identified the material required to be produced and whether it showed that the addressor was entitled to require that production
COURTS AND JUDGES — jurisdiction — whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summary prosecution prior to final hearing.
On 14 February 2003 the Environment Protection Authority (the “EPA”) issued a licence under the Protection of the Environment Operations Act 1997 (NSW) to Eastern Creek Operations Pty Limited (“Eastern Creek”) authorising it to undertake a range of activities, including waste processing, resource recovery and composting, at its facility in Eastern Creek. Between 2010 and 2018, operations at the facility included the sorting and processing of waste into an organic-based output known as mixed waste organic outputs (“MWOO”).
On 24 May 2018 the EPA received a report which found, inter alia, that MWOO contained chemical contaminants which raised “significant concern” for the environment and human health. On 24 September 2018 the EPA issued a Notice to Eastern Creek, purportedly pursuant to s 191 of the Protection of the Environment Operations Act 1997 (NSW), requiring it to provide specified information and/or records pertaining to MWOO.
The EPA brought two Class 5 proceedings in the Land and Environment Court against Eastern Creek, charging it with offences in connection with the Notice. The EPA alleged that Eastern Creek failed to produce the required material and in purported compliance with the Notice knowingly produced misleading material. The EPA subsequently sought leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) against a ruling made by Pain J in the course of the proceedings that the Notice is invalid.
The primary issues in the application were:
(1) Whether the Notice is valid;
(2) Whether the EPA is entitled to seek leave to appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) and whether leave to appeal should be granted;
(3) By way of case stated, whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summons after finding invalid a statutory notice which constituted an element of the criminal charge laid by the service of the summons.
The Court (Fullerton and Lonergan JJ; Macfarlan JA dissenting) dismissed the application for leave to appeal and (per Fullerton and Lonergan JJ) answered the stated case question in the affirmative:
In relation to Issue 1 (validity of the Notice):
Macfarlan JA found the Notice to be valid.
Fullerton and Lonergan JJ found it unnecessary to consider the validity of the Notice.
Per Macfarlan JA:
For a notice such as that in the present case to be valid, it must not only identify with sufficient clarity the documents which are required to be produced, it must show to the person to whom it is addressed that any document which he or she is required to produce is one whose production the issuer is entitled to require: [28]. Macfarlan JA found that the Notice in question satisfied these requirements: [51].
Federal Commissioner of Taxation v Australia and New Zealand Banking Group Ltd (1979) 143 CLR 499; [1979] HCA 67, applied.
In relation to Issue 2 (leave to appeal under s 5F):
Per Fullerton J, Lonergan J agreeing:
While it can be said that the finding of invalidity on the Notice had, in one sense, the requisite element of finality by resolving an issue in the proceedings in a binding manner, it was not a finding that determined “an identifiable or separate part of the proceedings”. The proper characterisation of the primary judge’s finding that the Notice is invalid is that it, in effect, operated as a final order and that, save for the EPA inviting her Honour not to order that the summonses be dismissed, the finding of invalidity would have had that effect. Although on one view it was a decision made in the proceedings at a preliminary stage and not in a final hearing, in this case that is not a relevant consideration and even less a determining factor in the characterisation of the ruling as “interlocutory”: [133].
Their Honours were not persuaded that the application for leave to appeal pursuant to s 5F(3)(a) is competent. Even if they were in error in that conclusion, theywould have refused leave: [136].
R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296, distinguished; Turnbull v R [2016] NSWCCA 109, applied.
Per Macfarlan JA, contra:
The primary judge’s determination that the Notice is invalid was an “interlocutory judgment or order” for the purposes of s 5F(3) of the Criminal Appeal Act 1912 (NSW) against which the EPA is entitled to seek leave to appeal. The question her Honour determined was one presented to her in a formal fashion (by notices of motion) and was the subject of a separate and substantial preliminary hearing: [2], [72].
As well, the issue was considered by her Honour at length in a substantial judgment. The fact that her Honour’s conclusion was not translated into a formal order, whether by way of declaration or otherwise, is not of significance. The determination was well capable of being reflected in the Court records consistently with “ordinary usage”. It was unlike a simple ruling on the admissibility of evidence which is not ordinarily entered in the records of the Court: [72].
In light of the conclusion that the Notice is valid, leave to appeal should be granted. The primary judge’s determination, if it stands, effectively puts an end to the prosecutions which are brought by the EPA in its capacity as a protector of the environment and health of the community: [75].
R v Steffan (1993) 30 NSWLR 633, applied.
In relation to Issue 3 (case stated):
Per Fullerton J, Lonergan J agreeing; Macfarlan JA not deciding:
The question raised by the case stated is a pure question of law and should be answered: [143].
There is nothing in s 247G of the Criminal Procedure Act, when considered in the structure of the Act, to deprive a superior court in an appropriate case (as this case plainly was) of the power to determine whether a case should be dismissed after a preliminary hearing into the question whether an essential condition of criminal liability can be established or proceed to a final hearing: [216]. The construction of s 247G(2) advanced by the respondent provides a source of power available to a superior court to be exercised in those circumstances. That purposive construction is an endorsement of the legislature’s commitment to a form of criminal justice in which the real issues in dispute between the parties are determined without undue delay and expense: [217].
CRIME – Appeals – Appeal against sentence – Commonwealth offences – Requirement to take into account offender’s contrition for offence – Distinction between rehabilitation and remorse – Whether offender “downplaying” criminality – Remorse does not require abandoning attempts to identify mitigating factors – Held that sentencing judge did not duly consider offender’s contrition – Sentence appeal allowed.
On 8 March 2021 the applicant Dominic Patel, having adhered to his earlier plea of guilty in the Local Court on 16 September 2020, was sentenced in the District Court at Lismore to an aggregate term of four years and six months imprisonment, with a non-parole period of two years and eight months. This sentence was imposed in respect of one count of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, namely MDMA (75.45g pure), contrary to s 307.6(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) and one count of trafficking a controlled drug, also MDMA (9.31g pure) contrary to s 302.4(1) of the Criminal Code. Also taken into account, under Crimes Act 1914 (Cth), s 16BA, were two additional matters admitted by the applicant, each of which resembled the first count but involved around half the quantity of MDMA. The applicant sought leave to appeal against the severity of his sentence.
Held (Per Brereton JA, N Adams J and Lonergan J agreeing), allowing the appeal [78] (Brereton JA), [79] (N Adams J) and [87] (Lonergan J).
1. Per Brereton JA, N Adams J and Lonergan J agreeing: When sentencing for Commonwealth offences, the Court is required by Crimes Act 1914 (Cth), s 16A(2)(f) to take into account the degree to which the person has shown contrition for the offence. An offender’s contrition is a distinct (although related) concept from their prospects of rehabilitation, and must be considered as such: [40] (Brereton JA), [79]-[80] (N Adams J); [87] (Lonergan J).
Barbaro v The Queen (2012) 226 A Crim R 354; [2012] VSCA 288 at [36]-[38], considered.
2. Per Brereton JA, N Adams J and Lonergan J agreeing: Contrition does not require the abandonment of legitimate attempts to point to mitigating factors, nor does it require self-flagellation in every domain. The offender demonstrated contrition by his assumption of responsibility for his conduct; his guilty pleas; his engagement in extensive rehabilitation; and, most significantly, his influencing his peers to make similar changes to their lifestyles. The sentencing judge did not duly consider the offender’s contrition: [51]-[54] (Brereton JA); [79]-[82] (N Adams J); [87] (Lonergan J).
Commissioner of Police (NSW) v Fantakis [2022] NSWCCA 94
CRIMINAL PROCEDURE – order to produce – application to set aside by Commissioner – documents sought by respondent in relation to appeal against murder conviction – documents pertaining to the police investigation – onus on respondent to show legitimate forensic purpose – applicable approach after Blacktown and Waters – where many of the documents already produced or not in the Commissioner’s possession – onus not discharged – application granted – order set aside.
CRIME – appeals – appeal against sentence – alleged error in assessment of objective seriousness – parity – applicant sentenced on agreed facts different to co-offenders – other facts disclosed more serious criminality – applicant instigated and planned offending, co-offenders assisted – no error in assessment of objective seriousness – no disparity – appeal dismissed.
CONVICTION APPEAL – applicant faced trial on 10 counts of child sexual assault involving two victims – convicted on one count involving one victim which was supported by evidence from other victim – Markuleski direction – trial judge told jury they could use any doubt about a victim’s evidence on one count in considering their evidence on other counts involving that victim but not in addressing any count concerning the other victim – effect of direction was to preclude jury from using any doubts about the evidence of one of the victims in the assessment of so much of their evidence that related to the count concerning the other victim – point not taken at trial – no forensic advantage to accused – miscarriage of justice – unreasonable verdict – whether verdicts inconsistent – whether evidence supporting conviction meant that it was unreasonable – whether commission of offence improbable because of risk of detection – ground rejected – verdict not unreasonable – appropriate order – retrial ordered.
Decision Restricted [2022] NSWCCA 89
CRIME — Bail — Detention application — where “exceptional circumstances” established — whether bail conditions could ameliorate risk of commission of serious offence which endangers safety of community — where conditions could not ameliorate risk — where application granted and bail revoked
CRIME — Bail — Terrorist offences — “Exceptional circumstances” — where respondent has been incarcerated for seven years — where COVID-19 pandemic has made conditions more onerous than normal — where “exceptional circumstances” established
CRIME – Appeal by Crown against acquittals – charges of sexual touching – respondent suffering from “sexsomnia” – question of volition – construction of phrase “mental health impairment” – s 4 Mental Health (Forensic Provisions) Act 2020 – whether Act codifies or alters the common law concerning the mental illness defence - relevance of common law defence of non-insane automatism –whether sexsomnia is a mental health impairment – question of correctness of construction and application of Act at trial.
An important decision concerning principles of jurisdiction and the operation of the new act concerning mental health issues at trial.
SPOTLIGHT ON HIGH COURT OF AUSTRALIA DECISIONS
HIGH COURT OF AUSTRALIA
Hoang v The Queen [2022] HCA 14 (13 April 2022)
Appeal allowed in part, new trial to be ordered in part.
PRACTICE AND PROCEDURE – Jury trial – Where s 53A(1)(c) of Jury Act 1977 (NSW) provided for mandatory discharge of juror where juror engaged in misconduct in relation to trial – Where misconduct included conduct constituting offence against Jury Act – Where offence against s 68C(1) of Jury Act for juror to make inquiry for purpose of obtaining information about any matters relevant to trial – Where evidence led as to Working with Children Check – Where evidence subject of submissions and referred to in summing up – Where jury note disclosed juror had searched internet for requirements of Working with Children Check – Where trial judge took verdicts which jury indicated they had reached unanimous verdict on before discharging juror – Whether information subject of inquiry about matter relevant to trial – Whether inquiry made for purpose of obtaining information about that matter – Whether mandatory discharge of juror required.
MEANING OF TERMS – "constitution and authority of the jury", "discharge of jurors", "jury deliberations", "making an inquiry", "mandatory discharge", "matters relevant to the trial", "misconduct in relation to the trial", "purpose of obtaining information", "true verdict according to the evidence".
Critical Excerpts from the Judgement:
[3] The appellant, Mr Hoang, was tried in the District Court of New South Wales on an indictment charging him with 12 counts of sexual offences against children: five counts of aggravated indecent assault (counts 1, 6, 8, 9 and 10); two counts of aggravated acts of indecency (counts 2 and 3) and five counts of aggravated sexual intercourse (counts 4, 5, 7, 11 and 12). There were five complainants. The offences were alleged to have been committed whilst the appellant was a mathematics tutor between 1 January 2007 and 31 July 2014. The appellant pleaded not guilty to all charges.
[...]
[5] During the course of jury deliberations, the jury provided a note to the trial judge stating that they had reached agreement on eight of the 12 counts and had varying degrees of agreement about the other counts. The jury continued to deliberate until approximately 4pm that day, at which time they were sent home.
[6] The jury returned the following morning. At approximately 12.30pm, the jury foreperson sent the trial judge a note which stated:
"This morning a juror disclosed that yesterday evening they google/looked up on the internet the requirements for a working with children check. The juror had previously been a teacher and was curious as to why they themselves did not have a check. They discovered the legislation, which was only introduced in 2013.
I myself have completed a working with children course and so already know this information but it had not been discussed in the jury room.
This information discovery of a juror making their own enquiry I do not feel has had an impact, however I understand my duty to notify you of this as per the written instructions at the commencement of this trial."
[7] Upon the trial judge being informed of the inquiry, her Honour proceeded to take the eight verdicts referred to in the jury note from the previous day as well as two further verdicts which, that afternoon, the jury indicated they had reached a unanimous verdict on. The jury returned verdicts of not guilty in respect of counts 2 and 3 and guilty verdicts in respect of counts 4 and 6 to 12. The trial judge then discharged the juror for misconduct under s 53A(1)(c) of the Jury Act. The remaining jurors then continued to deliberate in respect of the remaining two counts (counts 1 and 5). Unanimous guilty verdicts were later delivered with respect to those counts. Two weeks after the last verdict was delivered, the trial judge delivered reasons for discharging the juror.
[8] The appellant applied for leave to appeal against his convictions to the Court of Criminal Appeal of the Supreme Court of New South Wales. The three proposed appeal grounds relevantly related to the juror's conduct in conducting the search and whether that search constituted misconduct within the meaning of s 53A(1)(c) of the Jury Act and, if so, whether the juror should have been discharged prior to taking the first ten verdicts.
[9] In the Court of Criminal Appeal, the Crown accepted that if the juror's conduct in conducting the search constituted misconduct within the meaning of s 53A(1)(c) of the Jury Act, the juror should have been discharged prior to taking the ten verdicts. However, the Crown contended that the evidence did not establish that the juror's conduct constituted misconduct and contended that the trial judge was in error in finding to the contrary. In particular, the Crown submitted that the juror did not make the inquiry "for the purpose" of obtaining information about a matter relevant to the trial but did so for her own personal purpose.
[10] The appeal was dismissed (N Adams J, with whom Hoeben CJ at CL agreed; Campbell J dissenting). The majority held that the requirement in s 68C(1) that the inquiry be for a specified "purpose" requires a finding of the juror's intention in making the inquiry or the reason why the inquiry was made. The majority found that the juror made the inquiry for the purpose of "satisfying herself as to why she did not require a Working with Children Check" and, as that was not a matter that was relevant to the trial, the juror had not engaged in misconduct. The majority also held that, although the trial judge may have tentatively formed the view that there was misconduct prior to taking the verdicts, "the decision that later discharged the juror was made after the point in time at which it [was] alleged that the obligation to discharge was enlivened" (emphasis in original).
[11] [...] the appeals must be allowed. On the proper construction of s 68C(1), read with s 53A(1)(c), the juror had engaged in misconduct by making an inquiry for the purpose of obtaining information about a matter relevant to the trial and the trial judge was in error in taking the ten verdicts before discharging that juror.
FRINGE LAW
Sometimes in Courts you see the most interesting things...
TRANSCRIPT FROM THE HIGH COURT OF AUSTRALIA
Taylor, In the matter of an application for leave to issue or file [2022] HCATrans 96 (13 May 2022) [2022] HCATrans 096
IN THE HIGH COURT OF AUSTRALIA
In the matter of - an application by CINDY ANNE TAYLOR for leave to issue or file
Before Mr Justice GAGELER
AT SYDNEY ON FRIDAY, 13 MAY 2022, AT 1.00 PM
GAGELER J: Pursuant to r 6.07.3 I refuse the application for leave to issue or file the proposed application for a constitutional or other writ. I publish my reasons, and I direct that those reasons be incorporated into the transcript.
On 27 March 2022, Ms Cindy Anne Taylor attempted to file in the Registry of this Court a document purporting to be an application for a constitutional or other writ seeking orders that the Attorney‑General of the Commonwealth “Instruct the Crown” to:
1. With all of the World, immediately engage in a Treaty to acknowledge the rank and title of by the Grace of God, Our Sovereign :)cin, Wife and Mother; Head of the World Crown, Defender of All, and abide by Her conscionable directives;
2. Immediately relocate the Plaintiff and Her Family to a safe location as She wishes, and provide all that She wishes for, to enable their permanent self sufficiency.
3. Locate and relocate the Plaintiff’s Son to their new safe Family home by the end of April, 22;
4. Locate and relocate the Plaintiff’s Soul Mate to their new safe Family home by the end of April, 22; and according to their wishes, host their wedding to publicly confirm their vows as Wife & Husband
5. In Australia on Mother’s Day, Sunday 8 May, ‘22, Crown the Plaintiff by the Grace of God, Our Sovereign :)cin, Wife and Mother; Head of the World Crown, Defender of All, when She will confirm Her loyalty to, and allegiance with God, the Family and the World.
6. Other Orders as the High Court determines as fit and necessary.
On 11 April 2022, Gordon J directed, pursuant to r 6.07.2 of the High Court Rules 2004 (Cth), that the Registrar refuse to issue or file the proposed application without the leave of a Justice. By ex parte application filed on 12 April 2022, and pursuant to r 6.07.3, Ms Taylor now seeks that leave.
The document discloses no “matter” capable of adjudication by this Court. Further, the proposed application would seek to invoke the Court’s original jurisdiction on a basis that is both confused and manifestly untenable: Re Young (2020) 94 ALJR 448 at 451 [13]; 376 ALR 567 at 570.
Accordingly, I refuse leave to issue or file the document.
AT 1.01 PM THE MATTER WAS CONCLUDED.
For those not following along - that is 1 minute of Court.