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Benchmark Publication Friday, 11 November 2016 Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary The Queen, on the application of Denby Collins v The Secretary of State for Justice (UK - QBD) - criminal law - householder’s defence - householder restrained intruder in headlock who sustained serious injuries - whether householder entitled to rely upon householder’s defence - whether defence limited to ‘reasonable force’ - whether defence incompatible with right to life protection under human rights convention - defence limited to ‘reasonable force’ (WCL) Kelly v R (NSWCCA) - criminal law - sentence appeal - applicant with psychiatric issues and cognitive disorder pleaded guilty to 6 offences, including wounding causing grievous bodily harm (‘GBH’) - applicant represented himself on sentence and failed to adduce relevant, available psychiatric evidence - on appeal, arguing miscarriage because of incompetent representation - appeal allowed, resentenced R v Adams (No 5) (NSWSC) - criminal law - evidence - admissibility of representations contained in historical documents tendered on voir dire - 1983 murder - documents business records of police service - whether hearsay representations in documents admissible or excluded by s69(3) Evidence Act 1995 - one representation excluded and one admitted DPP (NSW) v Mustow (NSWSC) - criminal law - judicial review - respondent pleaded guilty to assault occasioning actual bodily harm (‘OABH’), but magistrate dismissed the charge and found him guilty of recklessly inflicting grievous bodily harm - on appeal, conviction quashed and respondent re-charged with assault OABH - second magistrate dismissed charge - on Director’s appeal - both magistrates erred - matter remitted for determination of charge of Page 1 assault OABH The Queen v Edwards (VSC) - criminal law - bail - applicant with intellectual disability and history of anger management issues - failure to adequately present all evidence in support of application - consideration of relevance of delay in hearing matter - unacceptable risk - bail refused R v Maddison (QCA) - criminal law - conviction appeal - appellant convicted of rape of child - appellant did not adduce evidence - whether verdict was unreasonable - principles considered and applied - verdict not unreasonable - appeal dismissed Yaqubi v the State of Western Australia (No 2) (WASCA) - criminal law - sentence appeal - whether sentence should have been suspended - appellant pleaded guilty to unlawfully inflicting grievous bodily harm (‘GBH’) - sentenced to 16 months - whether sentence manifestly excessive - principles considered - comparable cases considered - sentence within range - no error - appeal dismissed Wilson v The Queen (ACTCA) - criminal law - stay pending appeal - applicant found guilty of historical child sexual offences - application for a stay of the sentencing until after determination of applicant’s conviction appeal - principles considered - exceptional circumstance not demonstrated - application dismissed Clark v Bluett (ACTSC) - criminal law - conviction appeal - presumption of regularity - evidentiary certificates under firearms legislation - appellant convicted on 4 counts of possession of firearms and ammunition - magistrates purported to amend the certificates to validate them - appeal allowed, convictions set aside Brown v Guerin & Ors (NTSC) - criminal law - sentence appeal - domestic violence - appellant, who pleaded guilty to assaults, was herself a victim of domestic violence (‘DV’) - whether history of DV constituted mitigating factor to reduce her moral culpability - sentence did not reflect appellant’s history of DV - error demonstrated - appeal allowed, resentenced Summaries With Link (Five Minute Read) The Queen, on the application of Denby Collins v The Secretary of State for Justice [2016] QB 862 Queen’s Bench Division Sir Brian Leveson P, Cranston J Criminal law - householder’s defence s76(5A) Criminal Justice and Immigration Act 2008 (UK) - Article 2 European Convention on Human Rights (‘ECHR’), protection of right to life - Denby Page 2 Collins had unlawfully entered B’s home and was restrained by B in a headlock for some 6 minutes - as a result of the headlock, Collins suffered serious personal injury (‘positional asphyxia’) and was not expected to recover - the Crown Prosecution Service declined to prosecute B, on the basis that while the force used might have been considerable, it was not ‘grossly disproportionate’ and was therefore ‘reasonable’ and that, accordingly, B could rely upon the householder’s defence so there were not reasonable prospects of a successful prosecution - Collins, though his litigation friend (his father) sought a declaration that s76(5A) was incompatible with Article 2 ECHR, which limits the use of force to ‘no more than is absolutely necessary’ - held: at common law, self-defence required two elements, one a subjective element that the defendant genuinely believed that use of force was necessary and secondly, a partly objective and partly subjective element, being whether the nature and degree of force used was reasonable in the circumstance as the defendant believed them - authorities referred to (cf R v Oye [2014] 1 Cr App R 11) - s76(5A) qualifies the second element and automatically excludes a degree of force that is grossly disproportionate from being reasonable in householder cases - where the degree of force is not grossly disproportionate, s76(5A) does not prevent the degree of force from being reasonable - the test used in the section does not depend upon whether the force used was proportionate, disproportionate or grossly disproportionate - on the basis that the householder genuinely believed that it was necessary to use force, s76(5A), read together with the common law on self-defence, requires two separate, disjunctive questions to be put to a jury in a householder case (1) was the degree of force used grossly disproportionate in the circumstances the householder believed existed? If ‘yes’, the defence does not apply, but if ‘no’, then (2) was the degree of force used nevertheless reasonable in the circumstances the householder believed existed? If ‘yes’, then the defence can be relied upon, but not if the force was unreasonable - in deciding whether the degree of force was reasonable it is necessary to take into account the fact that the person acting in self- defence may not be able to weigh to a nicety the exact measure of any action - evidence of a person having only done what he or she honestly and instinctively thought necessary for their defence, constitutes potent evidence that the force was reasonable - in considering Article 2, it has been consistently held that the ‘reasonableness limb of self-defence’ is compatible with the Article 2 requirement of ‘absolute necessity’ - accordingly, there is no incompatibility between the householder’s defence and Article 2 - the CPS applied the wrong test in determining not to prosecute B - application dismissed [Editor’s note: cf s9, Charter of Human Rights and Responsibilities Act 2006 (Vic); s9, Human Rights Act 2004 (ACT); see ss418, 419, 420, 421 Crimes Act 1900 (NSW); ss 322I, 322K, 322N, 322R Crimes Act 1958 (Vic); ss25, 271,272, 277, 278 Criminal Code 1899 (Q); ss15, 15A, 15B, 15C Criminal Law Consolidation Act 1935 (SA); ss244, 248 Criminal Code 1923 (WA); ss8,40-46 Criminal Code Act 1924 (Tas); ss41, 42 Criminal Code 2002 (ACT); ss27, 29 Criminal Code Act 1983 (NT)]. Denby Collins Kelly v R [2016] NSWCCA 246 Court of Criminal Appeal of New South Wales Page 3 Hoeben CJ at CL, Rothman & R A Hulme JJ Criminal law - sentence appeal - applicant with psychiatric issues and cognitive disorder pleaded guilty to 6 counts: 2 counts of wounding with intent to cause grievous bodily harm (s33(1)(a) Crimes Act 1900 (NSW)); 3 counts of assault Occasionally Actual Bodily Harm (‘OABH’) (s59(1) Crimes Act 1900); one count destroy or damage property (s195(1)(a) Crimes Act 1900) - during the sentence hearing the judge repeatedly advised the applicant that he should obtain legal representation and that psychiatric reports would assist him - the respondent refused to accept this advice and was sentenced to an aggregate sentence of 12 years, NPP 9 years - he appealed on the primary ground that a miscarriage of justice occurred due to his incompetent presentation of his subjective case and sought to adduce further evidence - held: the evidence sought to be adduced on appeal related to the applicant’s psychiatric condition which existed at the time of sentencing - this evidence could have been available and adduced at sentence, but that did not happen - ordinarily parties are bound by the manner in which their cases are presented at first instance, however there are exceptions and the rule is not absolute 209 A Crim R 509, [104]-[105]) - here, the situation was complicated by the fact that the sentencing judge directly raised the question of both the availability and desirability of material of the kind now sought to be relied upon, being adduced before him - however, that emphasised the importance of the material - ultimately, whether to permit the material to be adduced rested on the
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