Case Law For All 4 Subjects

Question 1

Defects and Variances Case Law:

Lineham v Aust. Public Assoc. per Fitzgerald J

Answer 1

“the proceedings will be dismissed if the information upon which the summons was issued failed to disclose an offence at all because some material allegation was omitted and the time within which a prosecution may be commence has expired.”

Question 2

MARTIN v PRIDGEON

Answer 2

A variance points to some difference between the allegation and the evidence, not to a different offence.

Question 3

R v STRINGER (2000) A CRIM R 198

Answer 3

The question of when time was an essential ingredient was considered. Grove J observed at (20) that, “time has been stated to be of the essence in four situation, namely”

1. When an act is criminal only when does within a CERTAIN TIME of some other act or event; (example: CPR)
2. When it is an essential INGREDIENT of a particular offence that certain CONSEQUENCES should follow a particular act; (Example: Breath test)
3. When it is an essential INGREDIENT of a particular offence that the act alleged was committed between certain hours of the DAY or NIGHT; (example: P platers) and
4. When the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.”

Question 4

MOHR J, CAMILLERI v WILKINSON

Answer 4

“The true test is that SO LONG AS THE CORE OFFENCE REMAINS UNTOUCHED AN AMENDMENT CAN BE MADE TO A PARTICULAR so long as by doing so the defendant is not prejudiced in his defence. …I regard the aiming of the drug as a “particular”…”

Question 5

BOUJAOUDE v R, (2008) NSWCCA 35

Answer 5

-The indictment disclosed an offence know to law, so the weight alleged in the indictment was merely a particular.

Question 6

Mental Health Case Law:

DPP v WALLMAN (2017) NSWSC 40

Answer 6

Section 32 MUST NOT BE DONE IN CHAMBERS

Question 7

PERRY V FORBES & STOREY unreported, NSWSC, 21 May 1993

Answer 7

Magistrate needs to know:

• The circumstances surrounding the commission of the offence,
• The mental condition of the defendant (Medical Report)
• A CLEAR AND EFFECTIVE TREATMENT PLAN, and
• The plan must be likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident.
• PROSECUTOR TENDERS FACTS, ANTECEDENTS, AND ANY OTHER RELEVANT INFORMATION ON THE APPLICATION.
• SECTION 32 APPLICATION CAN BE MADE AT ANY TIME BEFORE THE LOCAL COURT.
• DEFENDANT DOES NOT HAVE TO ENTER A PLEA BEFORE S32 APPLICATION

Question 8

Sentencing Case Law:

R v PARIS

Answer 8

Role of the Prosecutor:

• The crown does have an obligation to DRAW TO THE ATTENTION OF THE JUDGE ALL RELEVANT SENTENCING OPTIONS and to ENSURE THAT APPROPRIATE OPTIONS ARE NOT OVERLOOKED.
• The Crown’s role us NOT to secure a conviction at any cost NOR to secure the heaviest available penalty

Question 9

R v O’NEILL

Answer 9

Plea of Guilty:

“A plea of guilty in itself carries with it a admission of the ESSENTIAL LEGAL INGREDIENTS of the offence and no more.”

Question 10

R v MEISSNER

Answer 10

Entering a guilty plea:
-A court will accept a plea of guilty by a person of full age, sound mind and understanding provided the pea is an exercise of free choice in that person’s interest EVEN IF THAT PERSON IS NOT IN TRUTH GUILTY OF THE OFFENCE.

Question 11

R v BOAG

Answer 11

Withdrawing a plea:

• The Court found that the defendant had even given more favourable advice by his second counsel as to his prospects at trial - THIS WAS INSUFFICIENT
• Plea was NOT attributable to a GENUINE CONSCIOUSNESS OF GUILT and a MISCARRIAGE OF JUSTICE.

Question 12

R v STOREY

Answer 12

Aggravation & Mitigation:
Aggravation - Prosecution must prove BEYOND A REASONABLE DOUBT
Mitigation - Defence must provide BEYOND A REASONABLE DOUBT

Question 13

R v DiSIMONI

Answer 13

Aggravating Factors:

• Fact which would have warranted a conviction for a more serious offence cannot be taken into account on sentencing for the offence that the defendant has plead to or been found guilty of
• “No one should be punished for an offence of which he has no been convicted.”

Question 14

R v FINIE

Answer 14

Correcting Sentencing Errors:

• Court nay re-open proceedings to correct sentencing errors SECTION 43
• May occur when either the Court has imposed a sentence that is CONTRARY TO THE LAW or the Court has failed to impose a penalty that is REQUIRED TO BE IMPOSED BY LAW

Question 15

R v HENRY

Answer 15

• Prosecution may appeal a sentence imposed if considered MANIFESTLY INADEQUATE
• DPP only have 28 DAYS to lodge appeal of decision