Friday, 9 September 2016
Weekly Criminal Law Review
Editor - Richard Thomas of Counsel
A Weekly Bulletin listing Decisions
of Superior Courts of Australia covering criminal
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Executive Summary
R v Ye (SASFC) - criminal law - severity appeal - 2 counts of attempted trafficking in controlled
drug (MDMAZ) - guilty pleas - whether sentences manifestly excessive - whether judge erred in
characterising appellant’s conduct as more serious than a street dealer - whether sentences
should have been suspended - appeal allowed - resentenced, applying s18A Criminal Law
(Sentencing ) Act 1988 (SA)
Yazdani v R (NSWCCA) - criminal law - participating in a criminal group suppling drugs convicted and sentenced to 28 years, NPP 21 years - appeal arguing miscarriage of justice due
to wrongful admission of evidence obtained by alleged unlawful/improper search and seizure s138 Evidence Act 1995 (NSW) - s21 Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) - alleged non-disclosure by the Crown - appeal dismissed
R v Alqudsi (NSWSC) - criminal law-sentencing - convicted on 7 counts of assisting persons
with the intention they enter Syria to engage in hostilities (s7(1)(e) Crimes (Foreign Incursions
and Recruitment) Act 1978 (Cth)) - purpose of legislation examined - need for general
deterrence - non-parole period considered - effective sentence of 8 years, NPP 6 years,
imposed
R v Smith (QCA) - criminal law - application to appeal conviction and sentence 26 years out of
time - manslaughter conviction - no explanation for delay - no miscarriage of justice
demonstrated - application refused
R v Simpson (SASCFC) - criminal law - severity appeal - serious firearms offences - correct
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approach to the application of s18A Criminal Law (Sentencing) Act 1988 (SA) identified sentencing judge erred in applying s18A - resentenced
R v Eccles-Smith (SASCFC) - criminal law - inconsistent verdicts - appellant found guilty of
indecent assault and acquitted of rape - the proper approach to a consideration of the
inconsistent verdict ground is set out in MacKenzie v The Queen ((1996) 190 CLR 348) verdicts not inconsistent - appeal dismissed
R v P, S (SASCFC) - criminal law - complaint evidence (s34M Evidence Act 1929 (SA) - 5
counts of rape - complainant resident in Australia on spousal visa - allegations made after
applicant advised authorities that the complainant had separated from him - complainant
alleged applicant raped her monthly during marriage - consideration of complaint evidence evidence of motive - necessary directions - complaint evidence improperly admitted convictions quashed
R v Novakovich (SASC) - criminal law - murder - victim disappeared 25 years previously accused alleged to have made admissions to police agent - admissions covertly recorded admissibility of admissions - whether there was any reasonable alternative explanation covertly recorded admissions admissible - satisfied victim deceased, but not satisfied accused
responsible - verdict of acquittal entered
Summaries With Link (Five Minute Read)
R v Ye [2016] SASCFC 82
Full Court of the Supreme Court of South Australia
Nicholson, Bampton & Doyle JJ
Criminal law - severity appeal - 2 counts of attempted trafficking in controlled drug (MDMA contrary to s270A Criminal Law Consolidation Act 1935 ) - guilty pleas - 30% discount applied sentenced on basis that appellant’s conduct was more serious than a street dealer - sentenced
to total period of 4 years 3 months, NPP 2 years - whether sentences manifestly excessive whether sentences should have been wholly suspended - appellant had ceased his personal
recreational use of drugs - held: House v the King ((1936) 55 CLR 499) error identified sentencing judge mischaracterised the seriousness of the offending by characterising the
appellants’ conduct as more serious than a street dealer - the offending involved attempted
trafficking, rather than a competed offending - the appellant demonstrated very good prospects
of rehabilitation and the total sentence imposed was outside the permissible range and
manifestly excessive - 30% discount applied - s18A Criminal Law (Sentencing ) Act 1988
applied - re-sentenced to 2 years 10 months, NPP 15 months - it is generally inappropriate to
suspend sentences imposed for drug trafficking offences - here, having regard to the quantity of
drugs involved there is no good reason to suspend the sentence imposed.
Ye
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Yazdani v R [2016] NSWCCA 194
Court of Criminal Appeal of New South Wales
Simpson JA, McCallum & Davies JJ
Criminal law - conviction appeal - 16 counts including knowingly participating in criminal group
involved in drug smuggling (s93T(1) Crimes Act 1900 (NSW)); supplying large commercial
quantities of prohibited drugs (heroin, MDMA, methylamphetamine), possessing drug
manufacturing apparatus and dealing with proceeds of crime - convicted after trial of 14 counts aggregate sentence of 28 years, NPP 21 years imposed - Crown case that appellant was a
principal member of an extensive drug distribution syndicate - during surveillance operation
police observed the appellant place bags in a vehicle parked in a private car park - the police
had obtained permission from the owner of the premises to conduct surveillance of the car park
and a police officer entered the car park and looked inside the bags and identified drugs - the
officer then obtained a warrant but failed to disclose in the supporting affidavit that he had
already looked inside the bags - the bags were then lawfully seized - objection under s138
Evidence Act 1995 (NSW) was taken at trial but the evidence was admitted - 4 grounds of
appeal (i) trial judge erred by failing to exclude evidence of drugs seized during the search (ii)
miscarriage as a result of the absence of video evidence (iii) miscarriage as a result of the
Crown’s failure to disclose the use of covert listening devices (iv) miscarriage as a result of the
Australian Crime Commissions’ failure to produce in answer to a subpoena transcript of a
witnesses’ interview - held: the appellant’s argument was misconceived - R v Rondo ((2001)126
A Crim R 562) distinguished - s21 Law Enforcement ( Powers and Responsibilities) Act 2002
(NSW) was irrelevant as s21 provides an authorisation to NSW police officers, which was not
the case here - even if it was necessary to establish that the officer had a reasonable suspicion
that there were drugs in the bags before his preliminary examination, the evidence established
that he did - in considering whether the evidence should have been excluded pursuant to s138,
the reasonable suspicion was relevant to the balancing process required by the section - the
original entry of the officer into the car park was lawful and authorised - and in considering the
matter it was artificial to break up the officers’ actions into component parts - the preliminary
inspection was brief and any improprieties were minor and inadvertent - there was no error in
the admission of the evidence - R v Abou-Chabake ((2004) 149 A Crim R 417) examines the
relevant authorities on the admission of fresh evidence, summarising the principles - the first
step is to determine if the evidence is “fresh” (Ratten v The Queen (1974) 131 CLR 510; Khoury
v R 209 A Crim R 509) - here the evidence was available at trial but the appellant argued that
legal aid funding prevented it being obtained - that issue of principle not further discussed as the
appellant’s explanation for failing to obtain the evidence was wholly inadequate - the evidence
would not have assisted the appellant in any event - there was in fact no non-disclosure Crown
and the call on the subpoena should have been rejected - appeal dismissed.
Yazdani
R v Alqudsi [2016] NSWSC 1227
Supreme Court of New South Wales
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Adamson J
Criminal law - sentencing - convicted on 7 counts of assisting persons with the intention they
enter Syria to engage in hostilities contrary to s7(1)(e) Crimes (Foreign Incursions and
Recruitment) Act 1978 (Cth) - reasons for enactment of the Crimes (Foreign Incursions and
Recruitment) Act and background to Syrian conflict considered - conduct of offender examined held: offences formed part of a course of conduct of assisting men to go to Syria to fight - totality
of offenders conduct must be considered to determine appropriate sentences for all offences
(s16A(2) Crimes Act 1914 (Cth) - purpose of ss6 & 7 Crimes (Foreign Incursions and
Recruitment) Act to deter and prevent foreign fighters from engaging in armed hostilities in
foreign States and to punish those who assist them - not an aggravating factor that the civil war
was violent - not appropriate to take into account any injury, loss or damage resulting from the
offence - offending moderately high - general deterrence is an important consideration here and
is relevant to the maintenance of public confidence in the administration of justice (Markarian v
The Queen (2005) 228 CLR 357) - the offender did not co-operate with authorities, however, the
trial was conducted efficiently and that should be taken into account on sentence - the offender
lacked insight into his offending behaviour and attempted to minimise his offending - the
conditions under which the offender will be held and the likely effects upon his family considered
- no sentence other than that of imprisonment appropriate - for Commonwealth offences there is
no statutory, or judicially determined “normal” ratio between the non-parole period and the total
sentence, so that the sentencing discretion is not constrained by any formula or norm - the nonparole is determined by what in the circumstances ought to be the minimum period of actual
incarceration (Power v The Queen (1974) 131 CLR 623; Hili v The Queen ; Jones v The Queen
242 CLR 520) - here a significant period of parole supervision is not required - overall effective
sentence 8 years, NPP 6 years.
Alqudsi
R v Smith [2016] QCA 201
Court of Appeal of Queensland
Fraser JA, Dalton & North JJ
Criminal law - application to appeal conviction and sentence 26 years out of time-manslaughter
conviction - applicant convicted on his plea and sentenced in August 1989 to 12 years - held: an
applicant seeking leave to appeal out of time must show good reason for the delay and must
present a compelling demonstration of a serious injustice which can only be corrected on appeal
- here the applicant’s stated reason for wishing to appeal is that he had been “harassed and
pursued” because of his conviction, but he provided no evidence that the conviction was
wrongful - the Crown case was strong and the applicant made a deliberate decision not to
appeal his conviction - no evidence of a miscarriage of justice - application refused.
Smith
R v Simpson [2016] SASCFC 83
Full Court of the Supreme Court of South Australia
Blue, Nicholson & Doyle JJ
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Criminal law - severity appeal - pleas to 25 offences committed during two periods - offences
included 7 serious firearms offences-sentenced to 9 years 8 months, NPP 5 years-plea entitled
appellant to a discount of up to 30% (Criminal Law (Sentencing) Act 1988 (SA)(Sentencing Act)
) - sentencing remarks unclear as to whether judge imposed 25 separate sentences or utilised
s18A Sentencing Act and imposed two sentences or imposed one penalty for 25 offences s20AAC(1) - s20AAC(1) Sentencing Act limits the extent to which s18A can be used when an
offender is being sentenced for serious firearms offences and other offences (as here) - held:
whilst not raised by the grounds of appeal, the sentencing judge erred in his approach to the
applicable discount and in allowing credit for time spent in custody on home detention - the
judge also erred by allowing a discount of 33%, when the maximum permitted discount
permitted is 30% - the appellant was a “serious firearms offender” (s20AA(1)(e),
s20AAB(1) Sentencing Act) and the provisions of s20AAC Sentencing Act had to be observed
in sentencing him for the serious firearms offences - this required separate sentences for those
offences and s18A could not be applied to those sentences and (where available) a sentence of
imprisonment had to be imposed which could not be suspended - s18A provides a useful
sentencing device which a judge may employ in cases of multiple offences - here, the
sentencing judge did not intend to impose one penalty for all offences, but conflated the
approach of sentencing each offence individually with the s18A procedure - this transmogrified
approach constituted error and failed to accurately identify or record individual sentences and
meant that it was not possible to determine the length of any individual sentence or when any
individual sentences commenced or ended - the judge arrived at a total period of imprisonment,
but had not determined a “head sentence” - R v Tyler ((2016) 124 SASR 412) referred to - the
final result was only able to be achieved by applying s18A contrary to s20AAC(1) - s20AAC91)
imposes a limitation upon the use of s18A - it is mandatory to impose a custodial sentence for
serious firearms offences, but not for other offences dealt with at the same time - the limitation
upon the use of s18A ensures a proper focus on the serious nature of firearms offences and the
special sentencing regime that applies to them - re-sentenced to a total period equating to
almost 11 years.
Simpson
R v Eccles-Smith [2016] SASCFC 84
Full Court of the Supreme Court of South Australia
Kourakis CJ, Blue & Doyle JJ
Criminal law - inconsistent verdicts - appellant found guilty of indecent assault and acquitted of
rape - complainant’s evidence was that the offending occurred between two telephone calls ,
with the second call being interrupted - held: the proper approach to a consideration of the
inconsistent verdict ground is set out in MacKenzie v The Queen ((1996) 190 CLR 348) - MFA v
the Queen (2002) 213 CLR 606 and R v Gbojueh 103 SASR 545 applied - the verdicts related
to two distinct incidents and there was no reason to think that the verdict of not guilty on the
second count demonstrated that the jury doubted the complainant’s credibility - appeal
dismissed [Editor’s note- Doyle J dissented].
Eccles-Smith
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R v P, S [2016] SASCFC 97
Full Court of the Supreme Court of South Australia
Nicholson, Parker & Lovell JJ
Criminal law - complaint evidence (s34M Evidence Act 1929 (SA)) - 5 counts of rape (s48(1)
Criminal Law Consolidation Act 1935 (SA)) - application for leave to appeal conviction - the
applicant, an Australian citizen, married the complainant who came to Australia on a 2 year
spousal visa - the complainant would be entitled to apply for permanent residency if she was still
married to the applicant after 2 years, but before that date they separated - the applicant notified
the authorities that they had separated and the next day the complainant complained to police
that the applicant had raped her - she alleged that throughout their marriage most occasions of
sexual intercourse were without her consent - a central issue in the trial was whether any of the
sexual contact was consensual - the Crown relied upon complaint evidence, but that evidence
was ultimately withdrawn from the jury during the Judge’s summing up - the applicant relied
upon character evidence - applicant convicted on all 5 counts - held: while the matter was
essentially one of oath against oath the applicant put forward a positive defence alleging that
the complainant had a motive to lie - the principles to be applied in relation to complaint
evidence considered and authorities referred to (cf R v S, DD (2010) 109 SASR 46; R v Maiolo
(No2) (2013) 117 SASR 1) - s34M does not abrogate the common law discretions to exclude
complaint evidence in appropriate circumstances - here the trial judge erred by permitting the
complainant to give evidence of complainant - while the trial judge gave a character direction he
failed to direct the jury how they might properly use the evidence of good character - here, the
character evidence was of probative significant in relation to both the applicant’s propensity to
commit the crimes charge and to his credibility - the direction was deficient in that it failed to
sufficiently identify for the jury the distinction between evidence bearing on honesty and
truthfulness and that bearing on character and propensity (The Queen v Trimboli (1979) 21
SASR 577; Melbourne v The Queen (1999) 198 CLR1 applied) - the relevant law concerning
the obligation to direct a jury on the issue of a complainant’s motive to lie is summarised in R v
Sluczanowski ([2008] SASSC 185) - the judge’s direction on the issue of motive and character
were economical and deficient - the direction on motive was deficient in that it did not direct the
jury that the rejection of the motive to lie did not strengthen the prosecution case - leave to
appeal granted, appeal allowed - all convictions set aside and the matter remitted.
P,S
R v Novakovich [2016] SASC 132
Supreme Court of South Australia
Stanley J
Criminal law - murder - judge alone trail - accused charged with murder 25 years after victim
disappeared - victim’s body never found - Crown case circumstantial - Crown argued accused
killed victim because she had attempted to blackmail him over his involvement in an armed
robbery - Crown relied upon alleged admissions made by the accused to his former domestic
partner and to a police agent - the alleged admissions to the police agent were covertly
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recorded - held: in the 25 years since the victims disappearance a number of witness have died,
records have been lost and memories faded - accordingly, the forensic disadvantage suffered
by the accused as a result of the delay was required to be taken into account when scrutinising
the evidence - in considering the admissibility of the covertly recorded admissions a distinction
is drawn between definite rule voluntariness and basal voluntariness - the principles relevant to
both are examined in R v Jelicic ([2016] SASC 57) - here the statements to the police agent
were voluntary and the accused’s will was not overborne - Tofilau v The Queen ((2007) 231
CLR 396) referred to - accordingly, basal voluntariness had been established - the evidence
may, however, be excluded on discretionary grounds (R v Swaffield; Pavic v The Queen ((1998)
192 CLR 159) - where an accused’s right to silence has been impugned the fairness discretion
is enlivened but in deciding whether to exercise the discretion to exclude the evidence all the
circumstances must be considered - there must be limits on the tactics employed by police to
obtain evidence - the subterfuge here involved the use of the police agent in the absence of a
caution, but there was no interrogation of the accused and the police were entitled to engage in
deception and subterfuge in investigation the crime - it would not unfair to admit this evidence
notwithstanding that the accused had previously declined to be interviewed by police - the
probative weight of the evidence outweighed any prejudicial effect - nor should it be excluded
under the public policy discretion 122 SASR 391) as there was no coercion and any breach by a
State official was minor - while satisfied that the victim was dead the judge was not satisfied that
the only reasonable hypothesis open on the evidence was that she was killed by the accused verdicts of acquittal of murder and manslaughter entered.
Novakovich
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Voices of the Air
By Katherine Mansfield
But then there comes that moment rare
When, for no cause that I can find,
The little voices of the air
Sound above all the sea and wind.
The sea and wind do then obey
And sighing, sighing double notes
Of double basses, content to play
A droning chord for the little throats
The little throats that sing and rise
Up into the light with lovely ease
And a kind of magical, sweet surprise
To hear and know themselves for these
For these little voices: the bee, the fly,
The leaf that taps, the pod that breaks,
The breeze on the grass-tops bending by,
The shrill quick sound that the insect makes.
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