Tuesday, March 6, 2012

RECENT CRIMINAL LAW CASES (WA)

RECENT CRIMINAL LAW CASES
BUI  v DIRECTOR OF PUBLIC PROSECUTIONS (Cth) [2012] HCA 1
(9 February 2012)
Coram: FRENCH CJ, GUMMOW, HAYNE, KIEFEL AND BELL JJ
Order: Appeal dismissed. - On appeal from the
Supreme Court of Victoria
Representation: P F Tehan QC with G F Meredith for the appellant (instructed by Greg
Thomas, Barrister & Solicitor):
W J Abraham QC with D D Gurvich for the respondent (instructed by Commonwealth
Director of Public Prosecutions);S G E McLeish SC, Solicitor-General for the State of Victoria  with R J Orr intervening on behalf of the  Attorney-General for the State of Victoria  (instructed by Victorian Government Solicitor).
Catchwords: Criminal law  – Appeal  – Appeal against sentence – Prosecution appeal – Double  jeopardy  – Appellant pleaded guilty to importation of a marketable quantity of a border  controlled drug contrary to s 307.2(1) of Criminal Code (Cth)  – Appellant sentenced  to three years' imprisonment to be released forthwith upon giving security to comply with a condition that appellant be of good behaviour for three years  – Respondent appealed against sentence  – Sections 289(2) and 290(3) of Criminal Procedure Act 2009 (Vic) ("Victorian provisions") provided that double jeopardy not to be taken into account in allowing appeal against sentence or imposing sentence  – Whether ss 68(1) or 79(1) of Judiciary Act 1903(Cth) ("Judiciary Act") rendered Victorian provisions applicable to prosecution appeal against sentence instituted by respondent  – Whether a "common law principle against double jeopardy" picked up
by s 80 of Judiciary Act – Whether ss 16A(1)- (2) of Crimes Act 1914 (Cth) required or
permitted court determining sentence for federal offence to take into account double jeopardy. Words and phrases – "double jeopardy".

(From the Case Notes of Thomas Hurley)
SPW -v- THE STATE OF WESTERN
AUSTRALIA [2012] WASCA 41
Coram: PULLIN JA, BUSS JA, MAZZA JA
Catchwords: Criminal law - Appeal against conviction - Sex offences against children -
Doctrine of recent complaint - Whether complaint was made at the first reasonable opportunity - Whether complaint was elicited by questions of an inducing character - Defence counsel decided for tactical reasons not to object to complaint evidence - Whether trial judge erred in his directions to the jury on complaint evidence - Whether a miscarriage of justice occurred as a result of inadmissible evidence, not objected to by defence counsel, being adduced at the trial.
Result: Leave to appeal granted on ground 1, Appeal dismissed
Representation: Counsel: Appellant: Mr L M
Levy SC & Mr C G Primerano; Respondent: Mr A L Troy; Solicitors:
Appellant: Carlo Primerano & Associates;
Respondent: Director of Public Prosecutions (WA).
(From the Case Notes of Thomas Hurley)
THE STATE OF WESTERN AUSTRALIA -v- RAYNEY [No 2] [2012] WASC 38
Coram: COMMISSIONER SLEIGHT
Catchwords: Criminal procedure - Witness summonses for production of details and documents - Applications by Commissioner of Police for cancellation of summonses - Meaning  of 'relevant to the case' - Meaning of 'legitimate forensic purpose' - Whether legitimate forensic purpose established - Criminal Procedure
Result: Applications to cancel witness summonses in part successful
Representation: Counsel: Prosecution: Mr J L S O'Sullivan; Accused: Mr A G Elliott; Applicant: Mr J L S O'Sullivan
Solicitors: Prosecution: Director of Public Prosecutions (WA); Accused: Timpano Legal;
Applicant: Commissioner of Police
(From the Case Notes of Thomas Hurley)

ARMSTRONG -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 42
Coram: BUSS JA, NEWNES JA, MAZZA JA
Catchwords: Criminal law - Appeal against conviction - Appellant convicted after trial of doing an act, with intent to harm the complainant, as a result of which bodily harm
was caused to the complainant  - Whether the trial judge made an error of law by admitting hearsay evidence as part of the res gestae  - Whether there was a miscarriage of justice as a  result of defence counsel allegedly ignoring the appellant's instructions - Whether new evidence  established that the appellant was innocent or raised such a doubt that the court was satisfied that the appellant should not have been convicted - Extension of time to appeal refused
Result: Application for leave to adduce additional evidence in the appeal dismissed. Application for an extension of time to appeal dismissed
Representation: Counsel: Appellant: In person;
Respondent: No appearance, Solicitors:
Appellant: In person; Respondent:  Director of Public Prosecutions (WA)
(From the Case Notes of Thomas Hurley)

MAS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 36
Coram: MARTIN CJ, PULLIN JA,  MAZZA JA
Catchwords: Criminal law - Directions to jury -
 Longman warning - Requirement that direction refer to 'actual' as opposed to potential prejudice from substantial delay - Reference to prejudice  to police from delay  - Direction viewed as a whole when assessing its adequacy to avert risk of miscarriage of justice Criminal law  - Direction to jury - Crofts  direction - Turns on  own facts Criminal law  - Sentencing  - Sexual offences against children - Plea of not guilty
Representation: Counsel: Appellant: Mr T F
Percy QC, Respondent: Mr J A Scholz,
Solicitors: Appellant: D G Price & Co, Respondent: Director of Public Prosecutions (WA).
(From the Case Notes of Thomas Hurley)

FERREIRA -v- THE STATE OF WESTERN AUSTRALIA [2012] WASCA 33
Coram: McLURE P, PULLIN JA, ALLANSON
Catchwords: Criminal law - Evidence - Complaints - Summing up to jury - Where evidence of complaint was not admissible as evidence of recent complaint - Where trial judge erroneously directed the jury that complaint was a recent complaint  - Whether erroneous direction resulted in a miscarriage of justice
Criminal law - Evidence - Complaints - Whether complaint evidence admissible in relation to allegation of invention by complainant Criminal law - Evidence - Complaints - Whether evidence of complaints could be taken into account by the jury to show  consistency of conduct in considering
Complainant's credibility and truthfulness - Whether errors constituted a substantial miscarriage of justice
Result: Leave to appeal granted, Appeal dismissed
Representation: Counsel: Appellant: Mr S Vandongen SC & Mr S F Rafferty, Respondent: Mr D Dempster Solicitors: Appellant: Seamus Rafferty, Respondent: Director of Public Prosecutions (WA)
(From the Case Notes of Thomas Hurley)

POLLOCK -v- THE QUEEN [2012] WASCA 30
Coram: McLURE P, MAZZA JA
Catchwords: Criminal law - Application for leave to appeal against sentence - Defrauding the Commonwealth - Whether total effective sentence infringed the first limb of the totality principle
Result: Leave to appeal refused Appeal dismissed
Representation: Counsel: Appellant: Mr P J Urquhart; Respondent: No appearance;
Solicitors: Appellant: Chris Stokes & Associates; Respondent: Director of Public Prosecutions (Cth)

(From the Case Notes of Thomas Hurley)

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