Criminal Law

PHAN V R [2018] NSWCCA 225

CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of coaccused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of coaccused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

Dr James Stellios represented the First Intervenor.

Reasons for the decision can be found here.

Rizeq v Western Australia [2017] HCA 23

From the High Court of Australia:

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).

Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).

Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".

Dr James Stellios assisted Matthew Howard SC in representing the appellant.

Jimenez v R [2017] NSWCCA 1

From the New South Wales Court of Criminal Appeal:

CRIMINAL LAW -  Leave to appeal against conviction – referral to Court of Criminal Appeal – possession of child pornography – Federal and State jurisdiction – error as to relevant law – conviction quashed.

Sophie Callan appeared with Madeleine Bridgett for the Crown.

R v Fang (No. 2) [2016] NSWSC 1784

CRIMINAL LAW – murder trial - whether adult Crown witness competent to give evidence - witness found unfit to be tried in separate criminal proceedings - ss.12 and 13 Evidence Act 1995 - applicable principles on competence inquiry - presumption of competence not displaced - witness competent to give sworn evidence

Crimes Act 1900 - Criminal Procedure Act 1986 - Evidence Act 1995 - Mental Health (Forensic Provisions) Act 1990

Madeleine Bridgett appeared as amicus curiae for the witness.

SafeWork (NSW) v Romanous Contractors; SafeWork (NSW v John Allen Romanous [2016] NSWDC 48

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee
SENTENCE – mitigating factors – aggravating factors – fine – capacity to pay – circumstances – objective seriousness – specific deterrence – general – credit – character - deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty
COSTS – prosecution costs

Michael Seck appeared for the offenders.