This week, the Parramatta District Court heard the trial of our client who was faced with two charges of aggravated break and enter. After a trial that went for three days, the court delivered a verdict of not guilty on both counts and acquitted our client, sending him home free.

The trial revealed the significant gaps in a prosecution case that was flawed from the outset by an inadequate Police investigation. Investigators failed to comply with the requirements of the Criminal Procedure Act by not recording an alleged series of admissions and then sought to fill the gaps by later having our client repeat those admissions onto tape. The court ruled such evidence was inadmissible because of section 281 of the Criminal Procedure Act which requires that where no reasonable excuse explains why admissions were not recorded, subsequently obtained evidence of them cannot be used at trial. The court found that there was no excuse in this case where Police indicated they couldn’t remember the situation and didn’t know why they did not comply with the law on such matters.

A trial such as this places the need for investigators to strictly comply with their obligations to preserve the integrity of their investigation and to ensure that accused men and women are never exposed to the danger of being “verballed” (a later account by Police of things said or done by the Accused that there is no objective evidence of and where it is in the power of the officer to embroider his or her account). Proper procedure means a proper trial. 

Of course, having a lawyer who knows the procedure helps have a successful trial.

A Kernaghan.

Mental Health on Trial

Arlie Loughnan, lecturer at the School of Law in the University of Sydney says,
“Lawyers say the question of mental fitness is a legal one – whether someone had the capacity to be convicted of an offence at the time of the offence. While psychiatrists say it’s a psychiatric prognosis,” she pointed out.
“Understanding where the other set of professionals is coming from is the challenge. This requires lawyers to take into account the psychiatric perspective and, equally, for medical practitioners to acknowledge the courtroom context.”
In 1981, the British serial killer dubbed ‘The Yorkshire Ripper’ pleaded guilty to the manslaughter of 13 women on the grounds of diminished responsibility. The prosecution intended to accept Sutcliffe’s plea after four psychiatrists diagnosed him with paranoid schizophrenia. But the trial judge, Justice Boreham, claimed the case was of significant public interest and ordered the matter be heard by a jury. Sutcliffe was subsequently found guilty of murder on all counts and sentenced to life imprisonment.
“In this case, there are medical professionals with a set of conclusions about the person’s condition who have translated these into the language required by the law, but you still have legal questions around whether it’s appropriate to go to trial and proceed through the normal criminal process,” Loughnan said.
She added that the case raises questions around “dangerousness” and whether criminal law is appropriate for defendants with serious impairments.
“If we’re dealing with defendants who are not going to be responsible in the relevant way and appropriate subjects of punishment, we need to think about whether a different approach is needed.
“As lawyers, we need to recognise the need to protect the community, and perhaps the defendant themselves, from harmful behaviour.”
Full story here.


A lawyer named Mark Spicehandler,  told “blatant, breathtaking lies” and has been struck from the profession until 2017.
He faced three charges of professional misconduct for denying on a job application that he had previously been charged with an offence, omitting details relating to his employment history from his resume and engaging in legal practice without a practising certificate.
Spicehandler had applied for the position of senior solicitor with the Office of Public Prosecutions in 2010, despite having not held a practicing certificate since June 2008 and  had held positions at five separate law firms between 2006 and 2010.
Full story here.

Murdoch Hacking Scandal the New Epic Saga

LONDON: The phone-hacking scandal that shook Rupert Murdoch’s global media empire and hit the heart of the British government began quietly on a Monday in 2005, when aides to the British royal family gathered in a palace office to air suspicions that their voicemail messages had been intercepted.

Seven years and dozens of arrests later, the day after the latest criminal charges were brought, information from the police, prosecutors and investigators indicated on Wednesday that the investigations are likely to go on for years, with no obvious end in sight.

More here.

Student Sues School for Not Getting into Law

The Age reports that Rose Ashton-Weir, an 18-year-old in the first year of an arts and sciences degree at the University of Sydney, left Geelong Grammar School in 2009 and completed her schooling at TAFE in Sydney.

 Her final marks were not good enough to do law at Sydney University and she is now seeking compensation in the Victorian Civil Administrative Tribunal (VCAT).

 According to The Age, she told VCAT this week that while at Geelong Grammar: “I didn’t ever feel I was getting the support I needed to really excel.”

 In particular, Ashton-Weir said she struggled at Maths (Folklaw hears ya), and said her English marks suffered after she was criticised for using “long words”.

 The school countered that she was poorly organised, had been placed on an “internal suspension” on more than one occasion and had skipped class.

More here.

Law Update: Un-sworn Evidence at Trial

Where children cannot swear an oath to give evidence truthfully (because, for example, they are too young to understand the significance of the oath) there remains a process by which the child can give un-sworn evidence at trial. That process is governed by section 13 of the Evidence Act.

In subsection 5 of section 13, it is a requirement that a person who cannot give sworn evidence will only be allowed to give unsworn evidence if the court has told that person:  

(a) that it is important to tell the truth, and

(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and

(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

In the recent case of SH v R [2012] NSWCCA 79, the Court dealt with a case in which the principal witness for the prosecution was a complainant who did not give sworn evidence, but gave evidence un-sworn. The appellant said that the judge failed to give a necessary instruction to the complainant before she gave her evidence. As a result, her evidence not merely  inadmissible, but also she was an incompetent witness. In such circumstances, it was submitted, the conviction must be set aside despite the fact that no objection was taken on that ground to her giving evidence, and that there may have been no substantial miscarriage of justice.

After reviewing a number of authorities, the Court concluded that while there appeared to be no substantial miscarriage of justice, the failure to comply with section 13(5) meant that the trial was not conducted according to law and that as a result the conviction would have to be set aside [per Basten JA at 35 with Blanche and Hall JJ agreeing]. 

The approach of the NSWCCA is consistent with the rule in R v BBR [2009] QCA 178 (19 June 2009) where Chesterman JA said: 

“[The] proposition is that where a statute permits the giving of unsworn testimony on certain conditions those conditions must be satisfied before the evidence can be given. Where a condition is that the judge give an explanation or admonition of some kind to the witness the explanation or admonition must be given.” 

A Kernaghan.

Law Update: Juveniles Avoiding Adult Gaol?

A provision of the Children (Criminal Proceedings) Act allows a court, when sentencing to goal a juvenile for an offence, to order that the child serve that sentence in Juvenile Detention Centre and not adult custody (section 19). The power to do that only comes into effect when the sentence that is imposed will see the child turn 18 while in custody. In such a circumstance, the court can order that the child serve that portion of his/her sentence over the age of 18 in a juvenile detention facility.

However there are restrictions on that power and one of these is that the sentence must, in any event, end within six months of the child/adult’s 21st birthday (Section 19(2)).

In the recent case of JM v R [2012] NSWCCA 83, the Court of Criminal Appeal considered a situation where a juvenile had been sentenced in such a way that he would be eligible for release when he was 23 years old – well after his twenty-first birthday and the six month maximum time period that is allowed for ordering such a person to serve the sentence in juvenile detention and avoid adult gaol. 

The question was whether or not it is relevant to consider that the child will serve time in adult gaol when determining the appropriate sentence? The answer seems to be “yes”. Simpson J observed this [at 123-125]:

“However, it is also my opinion that the constraint imposed by these subsections that makes it inevitable that the applicant will serve the major part of his non-parole period in an adult facility is a consideration relevant to the determination of the length of the non-parole period to be imposed. In saying this, I have not overlooked, and am indeed conscious of, subs (4A), which requires that more than mere youth is essential for a decision that would enable a juvenile offender who attains adulthood during the term of the sentence to serve that sentence as a juvenile offender.


It is then necessary to consider whether it was an error for her Honour to fail to take into account the circumstance that the legislation precluded the course that she envisaged (even though it was plain that she was aware that some part of the sentence would be served in adult custody); and the more difficult question whether it would have been open to her to tailor the sentence to take account of, and avoid, that circumstance.

I have concluded that the first part of the question ought to be answered affirmatively, that it was an error to fail to take into account that circumstance.

The second part of the question (can the court tailor the sentence specifically for the purpose of imposing a sentence that will involve no time in adult custody) has to be answered with very considerably more caution. As Howie J said in TG, it would be an error for the court to select a sentence solely for the purpose of avoiding a period in adult custody. Whatever sentence is imposed, wherever it is to be served, must meet the prime sentencing objective of recognising the objective gravity of the crime. If that is achieved, however, I am of the view, consistently with the approach taken in respect of sentences served in protective custody, that some, although limited, weight can be given to the nature of the offender’s custody.”

The other two justices disagreed with this approach noting that it ought never occur that a sentencing court adjusts a sentence to achieve a particular custodial outcome [per Howie J in TG and as set out in the reasons of Whealy J]. 

Although in the minority on this point, it seems the judgement of Simpson J has some work to do, particularly in the courts that regularly sentence juveniles. Simpson J’s judgement is typically careful and thorough and addresses the tension that might be observed to exist with the comments of Howie J in TG (as set out above). This is an important case.

A Kernaghan.

Law Update: Trial Summing Up

At the end of a trial in the District or Supreme Court, after each party has addressed the jury, it falls to the Judge to provide a summary of the evidence. Precisely what the summary should be has been the subject of instruction in the case of R v Zorad (1990) 19 NSWLOR 91 per Hunt, Enderby and Sharpe JJ:

“A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence [….]”

After critically observing the tendency of trial judges not to comply with such a rule, their honours noted this:

“It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine.”

This approach was approved in R v Tillott (NSWCCA, 8 April 1991, unreported).

Following those cases, the NSW Parliament ammended the legislation to provide that a trial judge need not summarise the evidence given in the trial if of the opinion that a summary is not necessary (Section 161 of the Criminal Procedure Act).

The recent case of Buckley v R; R v Buckley [2012] NSWCCA 85 affirms the good sense of the rule in Zorad while noting that, in some circumstances, it will be right for a judge not to summarise the evidence:

It is easy to state the basic requirements of a proper summing up: it is less easy to apply them in particular cases. Especially in times where every word uttered in the course of a trial is recorded and transcribed, there is considerable pressure on a trial judge to err on the side of excessive caution in referring to the evidence and the issues, lest any misstatement or omission be seized upon by counsel for the purposes of an appeal. The safest course, it may be thought, is to deal with the evidence as it has unfolded, in a largely chronological fashion. Unfortunately, that course is likely to be of less help to the jury than the more demanding course of identifying issues in dispute and relating relevant evidence to each issue in turn. It is clear that it is the latter course which must generally be adopted.” [per Basten JA at 14].

The court has also noted with approval the recent judgement of  El-Jalkh v R [2009] NSWCCA 139 James J (Spigelman CJ and Simpson J agreeing), where (after referring to Zorad and the statutory provision) it was observed that:

“It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel.”  [at 147].

A Kernaghan.

See Jade Law for more information on recent Australian and New South Wales case law.

Women at the Victorian Bar

11 women and 20 men joined the Victorian barrister ranks after completing the Bar Readers’ Course, taking the total number of barristers in Victoria from 1875 to 1906. The newly-appointed barristers come from a range of employment backgrounds and include a speechwriter, a television scriptwriter and an event manager.

Full article from Lawyers Weekly here.

No Rest for In-House General Counsel

The High Court ruling against the ex-general counsel of James Hardie means that it is now harder for general counsels to avoid liability, the country’s leading in-house legal body has said.
On 3 May the High Court handed down its judgment with regard to alleged breaches of the Corporations Act 2001 against eight former office holders of James Hardie.
The High Court found that Peter Shafron, the former general counsel and company secretary of James Hardie, had breached the Act by failing to discharge his duties as an officer of the company with the degree of care and due diligence that a reasonable person in his position would have exercised.
Baker & McKenzie corporate advisory partner James Halliday told Lawyers Weekly that the High Court decision has significant implications for general counsels.
“The Shafron decision is saying that a company officer can’t act in two roles (general counsel and company secretary),” said Halliday. “They can’t run around the other side of the desk and put on a different hat.

Full article from Lawyers Weekly here.