DOCSLIB.ORG

Court of Criminal Appeal New South Wales

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Court of Criminal Appeal New South Wales Court of Criminal Appeal New South Wales Medium Neutral Citation Gilham v R [2012] NSWCCA 131 Hearing Dates 28, 30 November 2011, 1 December 2011 Decision Date 25/06/2012 Before The Court at [1] McClellan CJ at CL at [647] Fullerton J at [662] Garling J at [677] Decision 1. Appeal upheld. 2. Convictions quashed. 3. Verdicts of acquittal entered on both counts Catchwords CRIMINAL LAW - appeal - conviction - double jeopardy - incontrovertibility of verdict - whether conviction of applicant for murder of his parents controverted applicant's acquittal for murder of his brother - whether manner in which Crown Prosecutor conducted trial controverted earlier acquittal - whether trial judge failed to instruct jury to give applicant "full benefit" of earlier acquittal - whether trial judge erred by not staying proceedings - rule against double jeopardy not infringed - trial judge's directions denied applicant full benefit of earlier acquittal. CRIMINAL LAW - appeal - conviction - expert evidence - admissibility - relevance - prejudicial effect - whether evidence of fire demonstrations and likely behaviour of fire elicited from Crown expert was relevant - whether probative value of evidence outweighed by prejudicial effect - probative value outweighed by prejudicial effect - evidence ought not to have been admitted - whether expert opinion evidence on similarity of pattern of stab wounds admissible - evidence of similarity admissible - opinion that similarity constituted an underlying pattern inadmissible - Crown Prosecutor's reliance on pattern of similarity amounted to coincidence reasoning - evidence of pattern of similarity not admitted as coincidence evidence under s 98 of Evidence Act 1995 - whether failure to call additional expert on issue of similarity on grounds of unreliability occasioned a miscarriage of justice - failure to call witness caused trial to miscarry - whether expert evidence on expected amount of blood on applicant and murder weapon relevant and admissible as expert opinion evidence - whether probative value of evidence outweighed by prejudicial effect - evidence admissible as expert opinion evidence - probative value outweighed prejudicial effect. CRIMINAL LAW - appeal - conviction - whether Crown Prosecutor cross-examined applicant in improper manner - whether Crown Prosecutor addressed jury in an improper manner - whether Crown Prosecutor undermined directions of trial judge - aspects of Crown Prosecutor's conduct and address improper -no miscarriage of justice occassioned. CRIMINAL LAW - appeal - conviction - whether verdict unreasonable or unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole - doubt capable of being resolved by jury's advantage in seeing and hearing evidence of applicant - no reasonable doubt on independent assessment of evidence. CRIMINAL LAW - new and fresh evidence - whether evidence available at time of trial - whether evidence credible, plausible or capable of belief - whether evidence likely to have caused jury to have entertained a reasonable doubt about guilt of applicant - new evidence concerning carbon monoxide likely to have caused jury to entertain a reasonable doubt. CRIMINAL LAW - appeal - conviction - whether applicant should be acquitted or retried - discretionary considerations. Legislation Cited Criminal Appeal Act 1912 Criminal Appeal Rules Director of Public Prosecutions Act 1986 Evidence Act 1995 Legal Profession Act 2004 Cases Cited Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 Burrell v R [2009] NSWCCA 193 Causevic v R [2008] NSWCCA 238; 190 A Crim R 416 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Director of Public Prosecutions v Shannon [1975] AC 717 Direction of Public Prosecutions (Nauru) v Fowler (1984) HCA 48; (1984) 153 CLR 317 Dyers v The Queen [2002] HCA 45; (2002) 210 CLR 285 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 Garrett v The Queen [1977] HCA 67; (1977) 139 CLR 437 Gerakiteys v The Queen [1984] HCA 8; (1984) 153 CLR 317 Gilham v R [2007] NSWCCA 323; (2007) 73 NSWLR 308 Gill v Walton (1991) 25 NSWLR 190 Haoui v R [2008] NSWCCA 209; (2008) 188 A Crim R 331 HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 Jiminez v The Queen [1992] HCA 14; (1992) 173 CLR 572 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 Justins v R [2010] NSWCCA 242; (2010) 204 A Crim R 315 Kanaan v R [2006] NSWCCA 109 King v The Queen [1986] HCA 59; (1986) 161 CLR 423 Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 M v The Queen [1994] HCA 63; (1994) 181 CLR 487 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 McCullough v R [1992] Tas R 43 MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 Parker v The Queen [1997] HCA 15; (1997) 186 CLR 494 Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Anderson (1991) 53 A Crim R 421 R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 R v Arp [1998] 3 SCR 339 R v Bikic [2002] NSWCCA 227 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 R v Darby [1982] HCA 32; (1982) 148 CLR 668 R v Degnan [2001] 1 NZLR 280 R v Gibson [2002] NSWCCA 401 R v Gilham [2007] NSWSC 231; (2007) 190 A Crim R 303 R v Gilham [2009] NSWSC 138 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v Grdic [1985] 1 SCR 810 R v Hilder (1997) 97 A Crim R 70 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Honeysett (1987) 10 NSWLR 638; (1987) 34 A Crim R 277 R v Kneebone [1999] NSWCCA 279; 47 NSWLR 450 R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 R v Murre [2001] NSWCCA 286 R v O'Donohue [2001] NSWCCA 458 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 R v Pernich (1991) 55 A Crim R 464 R v Perry (1990) 49 A Crim R 243 R v Ronen [2004] NSWSC 1298 R v Storey [1978] HCA 39; (1978) 140 CLR 364 R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 R v Thomas (No 3) [2006] VSCA 300; (2006) 14 VR 512 R v Wilkes [1948] HCA 22; (1948) 77 CLR 511 R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5 R v Z [2001] 2 AC 483 Ramsay v Watson [1961] HCA 65; 108 CLR 642 Randall v The Queen [2002] 1 WLR 2237 Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 Reid v The Queen [1980] 1 AC 343 SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 Spies v The Queen [2000] HCA 43; (2001) 201 CLR 603 Velevski v R [2002] HCA 4; 76 ALJR 402 Vella v R (1990) 2 WAR 537 Ward v R (1981) 3 A Crim R 171 Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492 Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 Wood v R [2012] NSWCCA 21 Category Principal judgment Parties Jeffrey Gilham (Applicant) Crown Representation Solicitors: Paladin Law Pty Ltd (Applicant) Solicitor for Public Prosecutions (Crown) Counsel: C Steirn SC/P Barham (Applicant) L Babb SC/N Noman (Crown) File Number(s) 2006/2766 DECISION UNDER APPEAL Court/Tribunal Supreme Court Before Howie J Date of Decision 11/03/2009 Medium Neutral Citation R v Gilham [2009] NSWSC 138 Court File Number(s) 2006/2766 JUDGMENT 1THE COURT: The applicant was convicted after trial of the murder of his parents. He appeals against his convictions and seeks leave to appeal against his sentence. 2The Court is unanimous in its conclusions with respect to each of the grounds of appeal against conviction. However, we have reached different conclusions with respect to the appropriate orders. This judgment sets out our views in relation to the grounds of appeal. We have prepared and publish separate judgments in relation to the appropriate orders. 3At or around 4 am on 28 August 1993, Mr Stephen Gilham and Mrs Helen Gilham were murdered in the home they occupied at Woronora with their two sons, Christopher, aged 25, and the applicant, Jeffrey, aged 23. 4The family was highly respected in the community. Both Christopher and the applicant were well regarded by both friends and neighbours for their scholastic achievements, their generally exemplary behaviour and character, and their loving relationship with their parents. The applicant was gregarious and popular, with marked success as a yachtsman. He was apparently his father's favoured son. Christopher was more quiet and sensitive although not without a supportive circle of friends. He was a keen and successful fencer and a talented pianist. 5The family home was built on a split level with the upper and lower floors connected by an internal spiral staircase. External stairs provided access through a garden to the Georges River. 6A double carport and single garage were located at street level, which housed a yacht as well as the motor vehicle the applicant customarily drove and his father's motor vehicle. The upper level of the house was accessed via stairs from the street, which connected with a side deck (or wooden walkway) that extended the length of the house along the upper level to glass sliding doors through to a living area. A dining table was immediately to the left on entry, and in relatively close proximity, but further into the room, there was a piano.
Load more

Recommended publications
  • Imagereal Capture
    Case notes R v CARROLL: DOUBLE JEOPARADY UNDER FIRE The longstanding principle of double jeopardy is under siege. The United Kingdom is at the forefront of introducing changes to the principle of double jeopardy. Part 10 of the Criminal Justice Bill 2002' seeks to reform the law relating to double jeopardy, by per- mitting retrials for a number of serious offences, where new and persuasive evidence2 becomes available. The prosecuting authorities3will have the power to apply to the Court of Appeal for an acquittal to be quashed, and for a retrial to take place. The Court of Appeal must be satis- fied that the new evidence is a compelling indication of the acquitted person's guilt. The new law will only apply to offences which carry a maximum sentence of life imprisonment, and for which the consequences for victims and society as a whole are serious. Such offences include murder, manslaughter, and rape.4 Where the Court of Appeal quashes an acquittal, the prosecuting authorities may then indict the respective individual for the same offence, and a retrial will follow. The Court of Appeal may refuse to quash an acquittal in cases where the evidence is not new and compelling, or where it is not considered in the interests of justice to proceed with a retrial. Notwithstanding fundamental challenges to the doctrine being considered by the British ~arliament,~in R v C~rroll,~the High Court of Australia has emphatically reaf- firmed its support of the double jeopardy principle. The rule against double jeopardy means that a person cannot be tried for an offence if he or she has already been acquitted or convicted of the same offence at a previous trial.
    [Show full text]
  • Bellanto QC Double Jeopardy and Standard Non-Paroel Periods
    Lexis Nexis Criminal Law Conference Parkroyal, Darling Harbour 30 November 2011 Developments in Double Jeopardy & The Application of the Statutory Non-Parole Period Presenter: Anthony Bellanto QC 2 Table of Contents1 About the Presenter ………………………………………………… 3 Double Jeopardy…..………………………………………………….4 Brief History ……………………………………….………………4 Definition and Related Concepts…………………………………..5 The Nature of Double Jeopardy……………………………………7 Connelly v DPP …………………………………………………….8 R v Humphrys ……………………………………………………12 Donald Hume …………………………………………………….13 O J Simpson……………………………………………………….14 Jack McCall……………………………………………………….15 Australia..………………...……………………………………….15 Reform ……………………………………………………………15 The Queen v Carroll……………………………………………….16 Removing the Rule? ……………………………………………....19 The Proposal – Australia..………………………………………...20 New South Wales ………………………………………………...21 Retrial after acquittal for serious offence – Legislation....………..23 Crown appeals against sentence – Legislation …………………..26 Regina v JW ……………………...……………………………….26 DPP (Cwlth) v De La Rosa ………………………………………..26 Queensland ………………………………………………………27 South Australia …………………………………………………...28 Tasmania …………………………………………………………28 Western Australia ………………………………………………..29 Victoria …………………………………………………………...29 Reform in United Kingdom …………………...………………….29 Reform in New Zealand ...………………………………………..31 The Debate …………………………………………………………31 The Application of the Statutory Non-Parole Period ………………33 Muldrock v The Queen …………………………………………..34 Bibliography ………………………………………………………..39 1 The author gratefully acknowledges the
    [Show full text]
  • Discussion Paper on Double Jeopardy (DP 141)
    (DISCUSSION PAPER No 141) Discussion Paper on Double Jeopardy Published by TSO (The Stationery Office) and available from: Online www.tso.co.uk/bookshop Mail, Telephone, Fax & E-mail TSO PO Box 29, Norwich, NR3 1GN Telephone orders/General enquiries: 0870 600 5522 Fax orders: 0870 600 5533 E-mail: [email protected] Textphone 0870 240 3701 TSO Shops 16 Arthur Street, Belfast BT1 4GD 028 9023 8451 Fax 028 9023 5401 71 Lothian Road, Edinburgh EH3 9AZ 0870 606 5566 Fax 0870 606 5588 The Parliamentary Bookshop 12 Bridge Street, Parliament Square London SW1A 2JX Telephone orders / General enquiries 020 7219 3890 ISBN 978-0108882319 Fax orders 020 7219 3866 Email [email protected] Internet bookshop.parliament.uk TSO@Blackwell and other Accredited Agents discussion £26.60 9 7 8 0 1 0 8 8 8 2 3 1 9 paper v1 Doub Jeop DP cover.indd 2 31/12/08 11:01:18 am Discussion Paper on Double Jeopardy January 2009 DISCUSSION PAPER No 141 This Discussion Paper is published for comment and criticism and does not represent the final views of the Scottish Law Commission. EDINBURGH: The Stationery Office £26.60 v1 Doub Jeop DP title.indd 1 31/12/08 11:00:36 am NOTES 1. In accordance with our Publication Scheme, please note that (i) responses to this paper will be made available to third parties on request in paper form once the responses have been considered at a Commission meeting unless a respondent has asked for a response to be treated as confidential or the Commission considers that a response should be treated as confidential; (ii) subject to the following,
    [Show full text]
  • Orders Page 1
    HIGH COURT OF AUSTRALIA GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ THE QUEEN APPLICANT AND RAYMOND JOHN CARROLL RESPONDENT The Queen v Carroll [2002] HCA 55 5 December 2002 B82/2001 ORDER 1. Special leave to appeal granted. 2. Appeal treated as instituted and heard instanter and dismissed. On appeal from the Supreme Court of Queensland Representation: M J Byrne QC for the applicant (instructed by the Director of Public Prosecutions (Queensland)) M J Griffin SC with P J Davis for the respondent (instructed by Legal Aid Office (Queensland)) Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports. CATCHWORDS The Queen v Carroll Criminal law – Perjury – Accused at murder trial denies in evidence that he killed the deceased – Accused acquitted of murder and subsequently indicted for perjury in relation to sworn statement – Whether perjury charge undermined accused's acquittal of earlier charge of murder – Whether perjury charge infringed common law rule against "double jeopardy". Criminal law – Double jeopardy – Res judicata – Issue estoppel – Autrefois acquit – Preclusion. Practice and procedure – Power of court to stay indictments for abuse of process – Whether perjury indictment should have been stayed as an abuse of process. Criminal Code (Q), ss 17, 123, 584, 592A, 598, 602, 631. Evidence Act 1977 (Q), s 8. Words and phrases – "Double jeopardy". 1 GLEESON CJ AND HAYNE J. In 1985, the respondent gave evidence on oath, at his trial for the murder of Deidre Maree Kennedy, denying that he had killed her. Despite his denial, the jury returned a verdict of guilty.
    [Show full text]
  • Double Jeopardy Briefing Paper No 16/03
    NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE Double Jeopardy by Rowena Johns Briefing Paper No 16/03 RELATED PUBLICATIONS • DNA Testing and Criminal Justice by Gareth Griffith, NSW Parliamentary Library Briefing Paper No 5/2000 ISSN 1325-5142 ISBN 0 7313 1744 0 August 2003 © 2003 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager.............................................(02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law..........................(02) 9230 2356 Talina Drabsch (BA, LLB(Hons)), Research Officer, Law......................(02) 9230 2768 Rowena Johns (BA (Hons), LLB), Research Officer, Law.......................(02) 9230 2003 Stewart Smith (BSc (Hons), MELGL), Research Officer, Environment..(02) 9230 2798 John Wilkinson (BA (Hons), MA), Research Officer, Economics...........(02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. CONTENTS EXECUTIVE SUMMARY 1. INTRODUCTION .....................................................................................................1 2.
    [Show full text]
  • Why Should the Double Jeopardy Rule Be Changed?
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Bond University Research Portal Bond University Research Repository Should the double jeopardy rule be in jeopardy? Lincoln, RA; Bennetts, Steven Published in: National Legal Eagle Published: 01/01/2003 Document Version: Publisher's PDF, also known as Version of record Link to publication in Bond University research repository. Recommended citation(APA): Lincoln, RA., & Bennetts, S. (2003). Should the double jeopardy rule be in jeopardy? National Legal Eagle, 9(2), 11-13. General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. For more information, or if you believe that this document breaches copyright, please contact the Bond University research repository coordinator. Download date: 09 Oct 2020 Should The DoubleLincoln and Bennetts: Should Jeopardy the double jeopardy rule be in jeopardy? Rule Be In Jeopardy? Assistant Professor of Criminology Bond University Robyn Lincoln and Steven Bennetts Bond University Masters of Criminology Student What is the double jeopardy rule? In Queensland there has been considerable debate about this case and the appropriateness of the double jeopardy rule. The term ’jeopardy’ generally means putting yourself in danger, at risk, or facing some kind of peril. In the law the The toddler’s mother, Mrs Faye Kemaedy, has now collected over 25,000 signatures on a petition to the state’s Attorney- role of ’double jeopardy’ generally means that a person who General to ask for the rule to be set aside because of the is acquitted at one trial should not be in danger of being tried again for the same crime.
    [Show full text]
  • Australian Law Journal and Australian Law Journal Reports
    Australian Law Journal and Australian Law Journal Reports INDEX TO VOLUMES 77-82 (2003-2008) Index compiled by ALAN WALKER BA (Hons), DipLib LAWBOOK CO. 2009 Customer Service and sales inquiries: Tel: 1300 304 195 Fax: 1300 304 196 Web: www.thomsonreuters.com Email: [email protected] Editorial inquiries: Tel: (02) 8587 7000 HEAD OFFICE 100 Harris Street PYRMONT NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 © 2009 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 688 trading as Lawbook Co. ISSN 0813-4073 Published in Sydney by Thomson Reuters (Professional) Australia Limited 100 Harris Street, Pyrmont NSW 2009 Typeset by Thomson Reuters (Professional) Australia Limited, Pyrmont, NSW Printed by Ligare Pty Ltd, Riverwood, NSW Table of Contents Volumes 77-82 Page Preface .......................................................................................................................................................... iii General Editors of the Australian Law Journal ............................................................................................ iv Table of Authors .......................................................................................................................................... 1 Table of Cases ............................................................................................................................................. 15 General Index .............................................................................................................................................
    [Show full text]
  • Double Jeopardy Reform: the New Evidence Exception for Acquittals 603
    2003 Double Jeopardy Reform: The New Evidence Exception for Acquittals 603 DOUBLE JEOPARDY REFORM: THE NEW EVIDENCE EXCEPTION FOR ACQUITTALS CHARLES PARKINSON∗ I INTRODUCTION A Carroll’s Case In 1973, a 17 month old girl in Queensland was abducted from her bedroom and murdered. Raymond Carroll was charged with the crime and found guilty by a jury in 1985. The Queensland Court of Appeal overturned the conviction due to lack of evidence.1 Advances in forensic medicine have since helped to strengthen the case against Carroll. As he could not be charged with the same offence twice under the double jeopardy rule, Carroll was indicted for perjury, having denied committing the murder in court. A jury found him guilty of perjury. The Queensland Court of Appeal quashed this conviction on two grounds. First, the evidence against the appellant was so lacking in cogency and probative value that the jury should have acquitted the defendant. Secondly, the prosecution breached the criminal law doctrine of double jeopardy by retrying the same facts twice.2 The prosecution appealed to the High Court of Australia, which upheld the decision of the Court of Appeal, relying on the double jeopardy rule.3 However, in their joint judgment, Gaudron and Gummow JJ noted that the conflict between protecting the integrity of the judicial process by convicting guilty persons and preventing successive prosecutions for the same elements of an offence ‘is capable of legislative resolution in different ways and with various exceptions and qualifications’.4 Following the High Court’s ruling in the Carroll case,5 The Australian newspaper ran a sustained campaign highlighting the unfairness of the double ∗ MA Candidate, University of Melbourne, DPhil Candidate, University of Oxford, UK Commonwealth Scholar, Trinity College, University of Oxford.
    [Show full text]
  • Double Jeopardy) Bill 2011
    THIRTY-EIGHTH PARLIAMENT REPORT 66 STANDING COMMITTEE ON UNIFORM LEGISLATION AND STATUTES REVIEW THE CRIMINAL APPEALS AMENDMENT (DOUBLE JEOPARDY) BILL 2011 Presented by Hon Adele Farina MLC (Chairman) November 2011 STANDING COMMITTEE ON UNIFORM LEGISLATION AND STATUTES REVIEW Date first appointed: 17 August 2005 Terms of Reference: The following is an extract from Schedule 1 of the Legislative Council Standing Orders: “8. Uniform Legislation and Statutes Review Committee 8.1 A Uniform Legislation and Statutes Review Committee is established. 8.2 The Committee consists of 4 Members. 8.3 The functions of the Committee are - (a) to consider and report on Bills referred under SO 230A; (b) of its own motion or on a reference from a Minister, to consider or review the development and formulation of any proposal or agreement whose implementation would require the enactment of legislation made subject to SO 230A; (c) to examine the provisions of any instrument that the Commonwealth has acceded to, or proposes to accede to, that imposes an obligation on the Commonwealth to give effect to the provisions of the instrument as part of the municipal law of Australia; (d) to review the form and content of the statute book; (e) to inquire into and report on any proposal to reform existing law that may be referred by the House or a Minister; and (f) to consider and report on any matter referred by the House or under SO 125A. 8.4 For a purpose relating to the performance of its functions, the Committee may consult with a like committee of a House of the
    [Show full text]
  • Wrongful Convictions, Appeals, and the Finality Principle: the Need for a Criminal Cases Review Commission
    270 UNSW Law Journal Volume 37(1) WRONGFUL CONVICTIONS, APPEALS, AND THE FINALITY PRINCIPLE: THE NEED FOR A CRIMINAL CASES REVIEW COMMISSION DAVID HAMER * Just as in the law, we can love truth, like all other good things, unwisely; pursue it too keenly; and be willing to pay for it too high a price, so we can also love finality too much. 1 I INTRODUCTION There is a ‘searing injustice and consequential social injury ... when the law turns upon itself and convicts an innocent person’. 2 The presumption of innocence and many other principles of evidence law and criminal procedure operate to minimise the risk of this injustice. 3 However, the risk of error is not totally precluded – the criminal standard of proof demands a high probability of guilt, but not absolute certainty 4 – and innocent defendants are convicted. Following conviction the defendant is presumed guilty, not innocent, and will face many obstacles in overturning the conviction. The law has a strong preference for treating the trial court’s verdict as final. 5 If convictions were subject to endless reassessment, the jury’s role would be undermined, the criminal justice system would lose efficiency, and victims and society would be denied closure. On appeal the defendant carries a heavy burden in seeking to establish innocence. Post-appeal, the burden is heavier still, and by this stage the * Faculty of Law, University of Sydney. I am grateful for the research assistance of Marie Nagy, and for the feedback obtained on presentations of this paper at the Law Faculty, The University of Hong Kong; the Gerald Gordon Seminar on Criminal Law at the University of Glasgow; the Efficient Forensic Science Symposium at the Australian Academy of Forensic Sciences; the Sydney Institute of Criminology; and the School of Law, University of New England.
    [Show full text]
  • Double Jeopardy) Bill
    Submission of the University of New South Wales Council for Civil Liberties to the NSW Attorney-General’s Community Consultation of the Draft Criminal Appeal Amendment (Double Jeopardy) Bill 15 October 2003 Authors: Roslyn Cook Sharona Coutts David Poole Trudy Sheehan Michael Walton (editor) Kathryn Wilson Francis Wong Contact: [email protected] www.nswccl.org.au/unswccl UNSWCCL Submission to Consultation on Double Jeopardy Bill Acknowledgments The draft Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW) has been heavily influenced by the Criminal Justice Bill1 in the UK and law reform proposals in New Zealand.2 As a consequence members of UNSWCCL have surveyed and drawn upon the debate in those countries to inform this submission. This submission also acknowledges its indebtedness to the briefing paper released by the NSW Parliamentary Library Research Service.3 While that paper was useful for background information, it should be noted that UNSWCCL found many parts of it to be inaccurate and biased towards the pro-reform agenda. 1 Criminal Justice Bill 2002 (UK), Pt 10, clauses 69-87. 2 New Zealand Law Commission, Acquittal Following Perversion of the Course of Justice, Report 70 (2001). 3 Rowena Johns, Double Jeopardy (2003) NSW Parliamentary Library Research Service, Briefing Paper No 16/03 Page (i) UNSWCCL Submission to Consultation on Double Jeopardy Bill Table of Contents 1. EXECUTIVE SUMMARY...........................................................................................................1 2. INTRODUCTION.........................................................................................................................2
    [Show full text]
  • Abuse of Judicial Process in Criminal Proceedings1
    ‘Fundamentals of Private Practice’. Law Society of Fiji Conference 2015, Suva, Fiji. September 2015 ABUSE OF JUDICIAL PROCESS IN CRIMINAL PROCEEDINGS1 Stephen Lawrence2 1 An earlier version of this paper was presented at the ‘Reasonable Cause CLE’ in Sydney on 15.09.2012. www.reasonablecause.net.au. 2 Barrister, Sir Owen Dixon Chambers, Sydney. 1 Table of Contents INTRODUCTION ........................................................................................................ 4 What is Abuse of Process .................................................................................... 5 Categories of Abuse of Process in the Criminal Law ........................................ 7 Abuse of Process Generally in the Civil Law ................................................... 10 Abuse of Process and Constitutional Context ................................................. 12 Legal Character of the Power to Prevent an Abuse of Process ...................... 16 The Remedies for an Abuse of Process in Criminal Proceedings .................. 18 An Order for a Stay Of Proceedings .................................................................................................. 18 Abuse of Process as a Basis for Excluding Evidence or Giving Certain Directions ............ 19 The Relevance of Abuse of Process to the Exercise of Discretion ........................................... 20 An Exceptional Power ............................................................................................................................ 20 THE CIRCUMSTANCES
    [Show full text]