Legal Studies: Case Law

CASE NAME	BASIC ISSUES	SYLLABUS DOT POINT	SYLLABUS THEME AND CHALLENGE
R v Burrell [2006] NSWSC 581, 2006	·       Murder conviction without a body ·       Rogue juror caused first trial to be aborted Lead to law reform (majority verdicts) ·       Exhausted appeal process	·       The role of juries, including verdicts ·       Appeals ·       Effectiveness of the criminal trial process ·       The criminal investigation process ·       Law reform	·       Issues of compliance… ·       Law balances the rights… ·       Law Reform
Gang Rape Case No 2 - R v Bilal Skaf, R v Mohommed Skaf, 2000	·       Sexual assault  - law reform: Crimes Act 1900 (NSW) Sect 61JA: Sexual committed on a person with another person/people present with intent to deprive victim of liberty; to inflict or threaten to inflict bodily harm ·       Clear use of sexual assault in company law ·       Juror misbehaviour (sought evidence outside of court, when to check out at the park and toilets if screams could be heard > mistrial) ·       Allowance for transcript evidence in a case of sexual assault – protects the victim ·       They then appeled to CCA and got their sentence reduced from 35 to 25 years	·       Summary and indictable offences ·       Parties to a crime ·       the role of juries ·       The role of the victim ·       Witnesses	·       Role of law reform ·       The law balances the rights ·       Moral and ethical standards ·       Compliance…
Dietrich v The Queen HCA 1992	·       Concerned right to legal representation ·       High Court appeal ·       He represented himself (even though he was provided with legal aid, they wanted him to plead guilty then they would represent him) ·       It is unfair for no legal representation but there is no requirement for the state to provide legal assistance ·       Comments made by the Justices Mason CJ and McHugh J in Dietrich v. The Queen (1992) 177 CLR 285 “…by reason of the lack of representation of the accused, the resulting trial is not a fair one…for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.”	·       Legal representation, including legal aid ·       Court jurisdiction ·       Appeals ·       The adversary system	·       Moral and ethical standards ·       Law balances the rights ·       Legal and non-legal methods
R v Loveridge [2013] NSWSC 1638, 2013	·       Sparked the one punch law reforms ·       Killed Kelly with one punch ·       Charged with manslaughter [loveridge] expressed remorse and demonstrated deprivation ·       Convicted. Sentenced to 7 years, 5 years non-parole (he got concurrent sentencing, because of his young age and his ability to rehabilitate, he also had an abusive childhood – discretion of judges, mitigating factors) ·       Kelly family unhappy. Wanted murder charges and appeal ·       Mandatory sentencing, ·       Implication:  slide into other aspects of law? ·       Nicholas Cowdrey – former head of DPP very critical due to 1) taking away judicial discretion and 2) breaching separation of powers ·       Media backlash ·       Caused law reform (one punch law, mandatory minimum sentencing)	·       The elements of crime ·       Causation ·       Factors affecting criminal behaviour ·       Statutory and judicial guidelines ·       The purposes of punishment ·       The role of the victim ·       Discretion ·       Mitigating factors	·       Law Reform ·       Law balances rights ·       Legal and non-legal methods ·       Role of discretion ·       Legal and non-legal
R v Singh [2012] NSWSC 637, 2012	·       Homicide – Mitigating Factors due to provocation ·       Used defence of provocation to reduce offence for murder to manslaughter (voluntary murder) ·       Slit his wife’s throat when she said she didn’t love him and found another man and would get him deported ·       Law reform 2013 – Defence of extreme provocation (crime must be an indictable offence, reasonable person in same situation would also be provoked)	·       Defences to criminal charges: - partial defences to murder ·       The role of the victim	·       Law reform ·       Balancing the rights ·       Moral and ethical standards
R v Jacobs (No 9) [2013] NSWSC 1470, 2013	·       Homicide ·       Snr constable David Rixon, murdered while on duty. Jacobs first person to be sentenced under new mandatory life sentences for on duty police officers, under section 19B of the Crimes Act 1900 (NSW) ·       Lead to law reform: Crimes Amendment (Murder of Police Officers) Act 2011 NSW	·       Police powers ·       Mandatory minimums	·       Law reform ·       Moral and Ethical Standards
R v Dean [2013] NSWSC 1027	·       Homicide – Aggravated Circumstance ·       Sentence of life imprisonment for the murders of 11 nursing home victims ·       Justice Latham J described Dean as being in the “worst case category” and there was “no evidence the offender was unable to appreciate…the wrongfulness of his actions” ·       Coronial Inquest – caused law reform in regards to sprinklers (shelter)– it occurred after the criminal trial ·       Aggravating factors: position of care, elderly victims, no remorse	·       Factors affecting a sentencing decision: aggravating circumstances ·       Discretion ·       Sentencing ·       Law Reforms ·       Coronial Inquest	·       Law balances rights ·       Role of discretion ·       Issues of compliance ·       Moral and ethical standards
R v LMW [1999] NSWSC 1128 (the Corey Davis case)	·       Corey Davis Case ·       Case where mens rea may be absent ·       10 year old boy died, killed by drowning on the second of march 1998 in Georges. ·       LMW charged with manslaughter of 6 year old boy ·       Doli Incapax: Presumes any child aged 10-14 is capable of criminal intent unless proven otherwise ·       Defence said LMW was disadvantaged and had a low IQ ·       Victims said that he was sly and cunning	·       The elements of crime: mens rea	·       Moral and ethical standards ·       Balancing the rights
Stephen Jacob Boney case, Wee Waa 2000 – unreported	·       Raped an Old Woman ·       Men were requested to have their saliva samples taken	·       Criminal Investigation Process	·       Law balances the rights ·       Moral and ethical standards ·       Compliance
Nanette May – unreported	·       Stalked by her ex, who brutally attacked her and sliced her lip ·       May went onto multiple media outlets, including Insight on SBS and 60 minutes on channel 9 ·       Now police must agree, as well as DPP and the victim for charge negotiation	·       Statutory and Judicial Guidelines ·       Pleas, charge negotiation	·       Legal and non-legal methods ·       Law balances the rights ·       Law reform
R v. Rivkin [2003]	·       White collar crime, insider trading ·       Sentenced to 9 months imprisonment, served as periodic detention and a $30,000 fine ·       Second trial occurred and was an appeal by the state	·       Types of penalties: fine, periodic detention, imprisonment ·       Appeals	·       Law balances the rights
Magaming v The Queen [2013] HCA 40, 11 October 2013
Byron’s Law/ Zoe’s Law
R v Abrahams [2013] NSWSC 729 & R v Kristi Anne Abrahams [2013] NSWSC 952, 18 July 2013	·       Homicide – Mitigating Factors ·       Moderate Range of offences ·       Killed her baby daughter (Kiesha Abrahams) ·       Sentenced to 22 years and 6 moths, 16 years non parole ·       Harrison J “The offender is nevertheless entitled to be sentenced dispassionately having regard both to the objective circumstances of her crimes and the subjective considerations at play. I do not consider that thee is any need for specific deterrence. The offender is never likely in my opinion to reoffend and is likely to be rehabilitated in the course of her imprisonment. The offender showed herself to be remorseful when secretly recorded and also reported similarly to MR Champion. Retribution and mercy are important in equal measure”	·       Factors affecting a sentencing decision: mitigating circumstances	·       Role of discretion ·       Law balances the rights ·       Law reflects moral and ethical standards
Bugmy v the Queen [2013] HCA 37, 2 October 2013	·       Significant implications for sentencing and punishment ·       Bugmy > extensive criminal record since 12 > aboriginal man > subject to alcohol abuse and violence and suffers from mental illness ·       Sentenced in district court for assault on a prison officer >increase after DPP appealed ·       Bugmy appealed later for the court not taking into account his “relative deprivation” >  a background of that kind may compromise the persons capacity to mature and to learn from experience \ ·       High court ruled in favour deciding it should have been takin into account at sentencing but made it clear that relative deprivation will always be based on specific circumstance and not of race (i.e. not just cause he was aboriginal)	·       Appeals ·       The purposes of punishment ·       Factors affecting a sentencing decision: aggravating and mitigating factors ·       Discretion ·       The role of sentencing and punishment in achieving justice	·       Law balances the rights ·       Moral and ethical standards ·       Role of discretion
R v Gilham [2009] NSWSC 138 (11 March 2009) & Gilham v R [2012] NSWCCA 131 (25 June 2012)	·       First trial: Guilty of manslaughter of brother, substantial impairment of mind, suspended sentence ·       Coronial inquest no.1: finds Christopher had killed parents ·       Media pressure – 60 minutes ·       Coronial inquest no.2: evidence missing, found likely to be one killer but DPP refused to prosecute ·       Private prosecution by uncle – DPP closed it down ·       New evidence emrerge, police reinvestigation, referred back to DPP, charged laid, J. Gilham convicted of murder, life sentence in 2009 for murder	·       Appeals ·       Investigating crime: gathering evidence ·       Legal personnel: DPP ·       Use of evidence, including witnesses ·       Defences to criminal charges: partial defences to murder ·       Types of penalties: suspended sentence	·       Law balances the rights ·       Moral and ethical standards
R v Gittany (No 4) [2013] NSWSC 1737, 27 November 2013	·       Threw his fiancé over the balcony of a Sydney high rise ·       Judge only trial, sentenced to 26 years with a non-parole period of 18 years ·       Got a judge only trial because he was too poor to pay for legal counsel as jury trials usually take longer (and could not get legal aid as he wasn’t poor enough) ·       Good example of how evidence is presented in court in an adversarial system	·       Judicial discretion ·       Legal Representation	·       Balancing rights
Rv AEM, R v KEM, R v MM [2002]	·       Gang rape cases ·       Gang rape changes in Crimes Act 1900 (NSW) Sect 61JA due to these three cases as well as R v Skaf 2012 NSW ·       Lead to aggravated sexual assault in company
R v. Easom 1971	·       Larceny ·       Theft – intention to permanently deprive ·       Defendant in cinema picked up a handbag and sorted through contents but put it back with nothing taken from the bag ·       Handbag was attached to a police sergeant’s wrist via cotton ·       He was found not guilty as he only had the intention of depriving the owner of property but not actually depriving of the property and hence he did not steal ·       Edmund Davies LJ: In every case of theft the taking must be done with ‘an intention of permanently depriving the owner of his property’. If the person who does the taking examines to see if they are worth taking and then replaces them ready at hand for the owner, there is no theft. This was clearly what Mr Easom’s intent was. ·       The appeal was allowed and the conviction was quashed	·       Elements of a crime: actus reus ·       Appeals	·       Role of discretion ·       Moral and ethical standards ·       Law balances the rights
R v. Thomas Sam; R v Majar Sam (No.18) [2009]	·       Baby died/eczema > Only treated with homeopathy despite medical advice ·       Guilty (Incacerated) ·       Legal issues: Manslaughter/Criminal negligence
DPP v. Morgan (1975) 2 WLR 913	·       Criminal Negligence ·       Woman raped/men claimed no mens rea due to them thinking she had given consent ·       Legal issue: Consent/mens rea ·       Court found men guilty	·       Defences to criminal charges, complete defences	·       Law balances rights
R v Waterlow [2011] NSWSC 326, 19th April 2011	·       Absence of mens rea due to mental illness ·       Affirmed the following test for whether an accused would be deemed mentally ill and therefore not responsible in law for his/her actions
R v Munter [2009] NSWSC 18	·       Causation ·       The accused was charged with manslaughter after he punched the 66 year old victim during neighbourhood dispute ·       The victim fell to the ground and the accused then kicked him in the midsection with moderate force ·       Shortly after, the victim had a heart attack and died ·       The accused was charged and convicted of manslaughter. Although there was no apparent intention to murder the victim, the heart attack was caused by the unlawful assault of the accused ·       Test is now”…but for” i.e. but for the unlawful assault would the heart attack have happened?	·       Causation ·       Summary and indictable offences	·       Law balances rights ·       Law reform (from R v Blaue)
R v Blaue (1975) 3 A11ER 446	·       Causation: But for test (derived from) ·       Appeal court judgement, Blaue’s act had resulted in the injury: his act has caused her injury ·       It was the injury, not the woman’s refusal to have a blood transfusion that was the substantial cause of her death	·       Appeals	·       Law Reform
Fitzgerald v R [2014] HCA 28	·       Lack of any physical or eyewitness evidence beyond a problematic DNA sample should not have convinced the jury ·       Fitzgerald had been part of group of men who had arrived in Adelaide carrying axes and gardening forks to which to attack the occupants of a property. One occupant died and the other had serious injuries ·       Fitzgerald was charged with murder and “aggravated causing serious harm with intent to cause serious harm” in SC of SA ·       Appeal issue: wrongful conviction ·       HC unanimously quashed his conviction	·       Investigating crime: gathering evidence ·       Court jurisdiction ·       Use of evidence, including witnesses ·       The role of juries ·       Appeals	·       Law balances the rights
Aytugrul v The Queen [2012] HCA 15	·       Accused tried for murder, hair found under deceased’s thumbnail, underwent DNA testing ·       Expert evidence: “99.9% of the population could not have [the same DNA profile as the accused]” ·       Wrongful conviction appeal: jury rounded 99 to 100 ·       HCA found that there was no sufficient reason for refusing to admit the opinion into evidence	·       Appeals ·       Use of evidence, including witnesses ·       The role of juries, including verdicts ·       Use of Evidence	·       Law balances the rights ·       Role of discretion ·       Moral and ethical standards
Darby v Dept of Public Prosecutions [2004] NSWCA 431	·       Dogs snout touched his groin ·       Sniffer dogs may not touch suspects as they have ‘no judgement’ on when/how/where to touch a suspect	·       Police powers ·       Investigating crime: gathering evidence, search and seizure	·       Law balances the rights
Beckett v State of New South Wales [2013] HCA 17, 8th May 2013	·       Roseanne catt was jailed for a decade for trying to poison her husband before she was set free ·       Her husband and a police officer had worked together to frame her ·       She received the right to sue the state of NSW for malicious prosecution	·       Appeals ·       Court Jurisdiction ·       Legal Personnel ·       Police powers	·       Law balances the rights
R v Zecevic (1978) 162 CLR 645 Zecevic v Director of Public Prosecutions	·       Accused killed neighbour after argument ·       During trial presiding judge withdrew the issue of self-defence, resulting in a conviction. after an appeal, a retrial occurred ·       Dawson and Toohey JJ setting out the requirements for self-defence “The question to be asked in the end is quite simple. It is whether the accused believed beyond reasonable grounds that it was necessary in self-defence to do what he did. IF he had that belief and there were reasonable grounds for it, or if the jury is left with reasonable doubt about the matter, then he is entitled to an acquittal.”	·       Appeals ·       Defences to criminal charges: complete defence	·       Law balances the rights ·       Role of discretion ·       Law reform
R v Dudley and Stevens (1884) 14 QBD 273 House of Lords	·       Necessity ·       3 sailors and 17 year old boy stranded at sea with no food, little water ·       On 8th day, two of the three sailors hatched plan to kill boy, third sailor dissented ·       The boy was killed and the three sailors ate his remains before they were rescued ·       House of lords > two who hatched plan were guilty of wilful murder or else this defence might become “the legal cloak for unbridled passion and atrocious crime.”	·       Defences to criminal charges: complete defences	·       Law balances the rights ·       Moral and ethical standards
R v Abusafiah [1991] 24 NSWLR 531	·       Duress ·       Defendant threatened a man with a knife and demanded money ·       Defendant said he only did this cause someone else told him to and threatened him with a gun	·       Defences to criminal charges: Complete defences	·       Moral and ethical standards ·       Law balances the rights ·       Compliance and non-compliance
R v Complin [1978] AC 705	·       15 year old boy killed his uncle after hitting him with frying pan. ·       Uncle had just finished sexually assaulting him and was mocking him about the incident ·       Provocation	·       Defences to criminal charges: ·       - partial defences to murder	·       Moral and ethical standards ·       Law balances the rights
R v Nam [2006] NSWSC 802; 2nd August 2006	·       In 2006, Nam plaeaded guilty to the manslaughter of Michael Pestano and maliciously inflicting grievous bodily harm to two other men from the Taylor family ·       Gross provocation, sentence significantly reduced ·       Minimum custodial sentence: 2 years manslaughter and 18 months for assault	·       Defences to criminal charges: partial defences to murder	·       Moral and ethical standards ·       Law balnaces the rights
Veen v The Queen (No.2) [1988] HCA 14	·       David Allen Harding murdered Christine Joy Anthony at her home in NSW in February of 2011 by pouring methylated spirits and setting her alight ·       Harding plead guilty ·       Received a non-parole period of 20 years and 3 months ·       Sentencing Judge, Justice Garling “The courts have developed clear guidance for the exercise of the sentencing discretion by every judge. These common law principles are to be found in deciding cases” In regards to Garlin he set out the principle of proportionality, namely that the sentence should be proportionate to the gravity of the offences.	·       Statutory and Judicial guidelines ·       The purposes of punishment	·       Law reform ·       Law balances the rights ·       The role of discretion
R v Camplin [1978] AC 705	·       Provocation (old laws) ·       A 15 yr old boy killed his uncle after hitting him with a frying pan. The uncle had just finished sexually abusing him and was mocking him about the incident ·       The court held that an ‘ordinary person’ in the position of the accused would have formed the intent to kill or inflict grievous bodily harm on the person who had assaulted him	·	·
R v Nam [2006] NSWSC 802; 2nd of August 2006	·       Gross Provocation to Murder ·       Timothy Nam pleaded guilty to the manslaughter of Michael Pestano and maliciously inflicting grievous bodily harm to the two other men from the taylor family	·	·
R v Williamson [1972] 2 NSWLR 281	·       Duress ·       The defendant disposed of a body while under the threat of death	·	·
Wood v R (2012) NSWCCA 21	·       The associate professor, Rod Cross, was heavily criticised by the Court of Criminal Appeal for a lack of impartiality, questionable expertise and the nature of his experiments designed to calculate how far a woman could be thrown or jump head first ·       Expert witness was criticised for being “too close” to the prosecution ·       The Chief Justice of the Supreme Court described the expert witness as having “crossed a line that experts should never cross…” ·       Wood’s convictions were overturned	·	·
Honeysett v R 2014 [HCA] 29	·       Honeysett had been found guilty of armed robbery on the basis of expert testimony ·       The expert specialised in anatomy and testified in court that although the feature of the robbers captured on CCTV were hidden by head coverings that he could ‘see’ that the footage and the defendant had no anatomic dissimilarities ·       Honeysett appealed to the HC who quashed his conviction on the grounds that the expert’s opinion was based only on ‘subjective opinion’. ·       A trial was reordered	·	·
R v Lane [2011] NSWSC 289 2011	·       Murder of newborn ·       Coronial inquest determined that enough evidence existed for lane to answer criminal charges of murder ·       There was no body	·	·
R v Gonzales [2004] NSWSC	·       Killed his family for monetary reasons and for failing uni ·       Tried to fabricate evidence, paid prostitute for alibi ·       Pleads not guilty – ‘worst case’	·	·
R v Istephan [2013]	·       Dentist who pulled out elderly people’s teeth for monetary reasons and without anaesthetics ·       He got a suspended sentence with an ICO (intensive correctional order)	·	·
R v Newman [2014]	·       Tony Abbott Daughter info leak ·       Received a good behaviour bond ·       Suspended sentence	·	·
R v Silva (2015)	·       Jessica Silva claimed she acted in self-defence when she killed her abusive ice-addict partner, James Polkinghorne, at her family’s house ·       She stabbed him 5 times when he arrived at her house ·       Used defence of Self-Defence ·       Was unsuccessful in the defence ·       The jury’s verdict indicated that they found her action “was not a reasonable response in the circumstances as she perceived them, thereby rendering her guilty of the crime of manslaughter by way of excessive self-defence” ·       She was convicted of manslaughter and sentenced her two years’ imprisonment wholly suspended and backdated to 11 August 2014 ·       The presiding judge said offenders convicted of manslaughter could only avoid jail “in the most exceptional case” and silva’s case fell into that category ·       Case very dependent on judicial discretion	·	·

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