Weekly Criminal Law Review Editor - Richard Thomas of Counsel A Weekly Bulletin listing Decisions of Superior Courts of Australia covering criminal

Friday, 23 December 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 RP v The Queen (HCA) - criminal law - doli incapax - appellant convicted of sexual intercourse with a child under 10 - complainant appellant s younger brother - appellant aged 11 years 6 months - whether presumption of incapacity rebutted - absence of evidence of appellant s education and social development - no evidence that appellant knew conduct morally wrong - convictions quashed R v Bucic (NSWCCA) - criminal law - appeal against acquittal - manufacture of cocaine - what constitutes manufacture - extracting cocaine by evaporation - relevant principles of statutory construction considered - error - appeal allowed - retrial ordered Barbieri v R (NSWCCA) - criminal law - murder - sentence appeal - significant cognitive impairment s19b Crimes Act 1900 (NSW) - substantial impairment s23a Crimes Act 1900 - parity - applicant stabbed police officer - mother involved in confrontation - both suffering from severe mental illness - mother entered plea to manslaughter - applicant sentenced for murder - applicant s condition derivative - relevance of condition to offending - error - resentenced R (Cth) v Rapolti; R (Cth) v Russell; R (Cth) v Speedy Corporation Pty Limited (NSWCCA) - criminal law - search warrants - interlocutory appeal against trial judge s exclusion of evidence - s138 Evidence Act 1995 - Crown use of warrant to seize material held by DPP to launder it - evidence seized improperly - no error by trial judge - appeal dismissed R v Obeid (No 12) (NSWSC) - criminal law - sentence - offender convicted of common law offence of wilful misconduct in public office - offence intentional and serious - relevant Page 1

sentencing principles considered - age & health of offender considered - effect of publicity and delay considered - relevance of prior good character - no other penalty than imprisonment warranted - sentenced to 5 years, NPP 3 years Spajol v The Queen (VSCA) - criminal law - causation - negligently causing serious injury while driving ( NCSI ) - reading of 0.178% to 0.195% at time of collision - passenger, not wearing a seat belt, left with permanent brain injury - sentenced to 3 years, NPP 18 months - on appeal, argued sentence excessive because victim contributed to her injures - appeal dismissed The Queen v D A & G F K (VSCA) - criminal law - privilege against self-incrimination - coercive powers to require answers - reasonable excuse for failure - burden of proof - contempt proceedings where respondents refused to answer questions of Chief Examiner under Major Crime (Investigative Powers) Act 2004 (Vic) - construction of legislation within context of human rights - authorities considered - reference to Court of Appeal - Questions answered X v Callanan & Anor (QCA) - criminal law - privilege against self-incrimination - companion rule - appellant required to appear before Crime & Misconduct Commission to answer questions - appellant asked for location of a weapon used to kill Z - appellant refused to answer, relying on the companion principle - whether reasonable excuse for not answering - authorities considered - companion principle not engaged - appeal dismissed R v Gathercole (QCA) - criminal law - prosecutor s address - murder - conviction appeal - argued prosecutor s address occasioned miscarriage of justice - issue of intent - prosecutor suggested appellant formed intent because of prior unrelated suicide attempts - chance of acquittal lost - appeal allowed - retrial ordered Summaries With Link (Five Minute Read) RP v The Queen [2016] HCA 53 High Court of Australia Kiefel, Bell, Gageler, Keane & Gordon JJ Criminal law - doli incapax - judge alone trial - appellant convicted of 2 counts of sexual intercourse with a child under 10 years - complainant, aged 6 years 9 months, was appellant s younger brother - appellant aged approximately 11 years 6 months at the time of the offences - evidence at trial was wholly documentary - 2 reports were tended dealing with assessments of the applicant when aged 17 and 18 years - the reports included IQ test results which placed the appellant in the borderline range of intellectual functioning / top of the borderline disabled range, placing him in the eighth percentile in terms of functioning - one assessment reported that the appellant s upbringing appears to have been marked by a measure of turmoil and dysfunction - the facts of the offences, which were not disputed, were contained in an interview between the complainant and police, which occurred when the complainant was aged 15 - the Page 2

appellant was sentenced to an effective term of 2 years 5 months, NPP 10 months - the appellant was acquitted of one additional count of aggregated indecent assault and on appeal to the NSW CCA his conviction on a second count of aggregated indecent assault was quashed - appellant granted special leave to appeal on ground that verdicts on both counts were unreasonable because the evidence did not establish to the criminal standard that the presumption of doli incapax was rebutted - held: s5 of the NSW Children (Criminal Proceedings) Act 1987 provides a conclusive presumption that no child under the age of 10 years can be guilty of an offence - from the age of 10 years to 14 years, the presumption may be rebutted by evidence that the child knew that it was morally wrong to engage in the conduct that constitutes the physical elements of the offence - knowledge of the moral wrongness of an act or omission is to be distinguished from the child s awareness that his or her conduct is merely naughty or mischievous (C (A Minor) v DPP [1996] AC 1, 38; BP v The Queen [2006] NSWCCA 172, [27]-[28]) - this distinction may be expressed in terms of proof that the child knew the conduct was seriously wrong or gravely wrong (R v Gorrie (1918) 83 JP 136; C (A Minor) v DPP, supra) - no matter how obviously wrong the acts constituting the offence may be, the presumption cannot be rebutted merely as an inference from the doing of the acts - to the extent that R v ALH (2003) 6 VR 276 suggests a contrary approach, it is wrong - the prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child s development is such that he or she knew that it was morally wrong to engage in the conduct - this directs attention to the child s education and the environment in which the child was raised - rebutting the presumption requires evidence of the child s progress at school and home life - rebutting the presumption directs attention to the intellectual and moral development of the child - the onus lies upon the prosecution to adduce evidence to rebut the presumption to the criminal standard - here, the prosecution did not adduce any evidence, apart from the circumstances of the offences, to establish that the appellant s development was such that he understood the moral wrongness of his acts - the fact that the appellant s conduct went well beyond the ordinary childish sexual experimentation does not carry with it a conclusion that he understood his conduct was seriously wrong in a moral sense, as distinct from being rude or naughty - the fact that a child of 11 years 6 months knew about anal intercourse and to use a condom when engaging in it was strongly suggestive of exposure to inappropriate sexually explicit material or of having been himself the subject of sexual interference - despite the suggestion in one assessment that the appellant may have been sexually molested, the prosecution did not call anyone responsible for his care to give an account of the environment in which he was raised - no evidence was adduced from which any conclusion could be drawn as to his moral development - no evidence as to his performance at school as an 11 year old was adduced - in the absence of evidence on these subjects it was not open to conclude that the appellant, with his intellectual limitations, was proved beyond reasonable doubt to have understood that his conduct in engaging in sexual intercourse with his younger brother was seriously wrong in a moral sense - appeal allowed - convictions quashed. RP R v Bucic [2016] NSWCCA 297 Page 3

Court of Criminal Appeal of New South Wales Hoeben CJ at CL, Harrison & Campbell JJ Criminal law - Crown appeal against acquittal (s107(2) Crimes (Appeal and Review) Act 2001 (NSW) - judge alone trial - respondent charged with knowingly take part in the manufacture of cocaine (s24(1) Drug Misuse and Trafficking Act 1985 (NSW) ( DMTA )) - also charged with importing a marketable quantity of the drug - respondent and co-accused were in possession of sheets of A4 paper impregnated with cocaine - they had instructions & items to separate the cocaine from the paper - the issue at trial and on appeal was the meaning of the expression manufactures a prohibited drug (s24 DMTA) - expert evidence was to the effect that cocaine hydrochloride goes into the paper in the form of cocaine hydrochloride and comes out exactly in that form & that no specialised equipment, or chemicals, were required to extract it - the respondent, relying upon the decision of Beqiri v R (2013) 37 VR 219 argued that as the process of extraction did not result in making something, ie cocaine, from something different from cocaine, he had not taken any step in the manufacture of the cocaine - held: considering the issue of statutory construction of the relevant provisions (ss3, 6, 24(1) DMTA) - the task of statutory construction must begin with a consideration of the text itself (Alcan (NT) v Territory Revenue (2009) 239 CLR 27, [47]) - see also Beckwith v The Queen (1976) 135 CLR 569, 576; R v Thomas (1993) 67 A Crim R 308, 310 - assuming that the ordinary English meaning of manufacture is making something out of something different, it was an error for the trial judge to say that that meaning clearly informs the context in which the process of extracting the prohibited drug must occur (Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503, 507 - the legal meaning of manufacture in DMTA includes to work up material into a form for use, so that on the Crown case it was open to the jury, as a matter of law, to be satisfied beyond reasonable doubt that the respondent and the co-accused were engaged in manufacture - even without the definition of manufacture being extended to a process of extraction, the dissolution and evaporation to be undertaken was a step in the process of manufacture (see R v Randylle (2006) 95 SASR 574, 582) - a jury could accept that the steps taken by the respondent and co-accused constituted the final stage of a much larger process of manufacturing cocaine as a marketable commodity - dissolving the cocaine impregnated paper in an alcohol solution and evaporating that solution to obtain the cocaine hydrochloride as a marketable commodity was a process of extraction of the drug in a statutory sense - Beqiri v R (supra) has no application to the interpretation of DMTA - appeal allowed - verdict of acquittal quashed - retrial ordered. Bucic Barbieri v R [2016] NSWCCA 295 Court of Criminal Appeal of New South Wales Simpson JA, Price & McCallum JJ Criminal law - murder - sentence appeal - significant cognitive impairment (s19b Crimes Act 1900 (NSW)) - substantial impairment (s23a Crimes Act 1900) - applicant stabbed police officer during confrontation at his home - applicant s mother involved in confrontation - applicant s mother suffering from chronic paranoid schizophrenia - applicant lived with mother Page 4

and had come to share her delusions - Folie A Deux - applicant and mother both charged with murder - DPP accepted mother s plea to manslaughter on basis that she was suffering from substantial impairment within s23a Crimes Act 1900 (NSW) - applicant s offer of a plea to manslaughter was rejected on basis that his mental disorder was derived from his mother and had improved since he had been away from her - DPP offered a concession that it accepted applicant had a significant cognitive impairment within s19b(3)(b) Crimes Act 1900 - applicant then entered plea to murder - mother sentenced to a total term of 9 years with NPP 6 years 6 months for the manslaughter offence - applicant with good rehabilitation prospects, low risk of reoffending, but lacking genuine remorse, sentenced to 35 years, NPP 26 years (additional offences being taken into account) - s19b(1) Crimes Act 1900 provides that a sentence of life imprisonment is mandatory where a police officer is killed while on duty, however the concession of significant cognitive impairment meant that life imprisonment was not mandated - Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) further provided that a standard NPP of 25 years applied - applicant sought leave to appeal severity of his sentence, relying upon 7 grounds including error in application of principles applying to mentally ill offenders, failure to find special circumstances (s44 Crimes (Sentencing Procedure ) Act 1999); parity - held: principles applicable to sentencing mentally disordered offenders spelled out in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 - of particular importance in assessing an offender s moral culpability is the causal relationship between the mental disorder and the offending - here it constituted error to take into account the fact that the applicant s mental condition was derivative and that it had improved since separating from him mother - the importance of deterring attacks on police officers does not and cannot make an offender a suitable vehicle for general deterrence who is plainly an unsuitable one due to mental disorder - accordingly, the applicant was required to be resentenced (Kentwell v The Queen (2014) 252 CLR 601) - in considering the appropriate discount to be allowed where a plea has been entered (s22 Crimes (Sentencing Procedure) Act 1999) the timing of the plea is important (R v Borkowski (2009) 195 A Crim R 1) - here, the applicant faced a difficult decision & the appropriate discount was 15% - on the issue of parity: the disparity between the sentences was stark - the sentencing judge attributed far greater weight to the mother s mental illness than to the applicant s - that constituted error - on resentence: additional evidence was received on the usual basis (see Betts v The Queen (2016) 332 ALR 185) - the applicant s mental illness was plainly severe and that diminished his moral culpability to a very significant degree - that reduced significantly the emphasis that ought to be placed on general deterrence - personal deterrence was of minor importance - applicant was genuinely remorseful and unlikely to reoffend - appeal allowed - discount 15% for plea allowed - special circumstances found - resentenced to 21 years 3 months, NPP 15 years [Editor s note: see R v Barbieri, Mitchell; R v Barbier, Fiona [2014] NSWSC 1808 for sentences. Price J agreed that the appeal should be allowed but differed as to the appropriate sentence to be imposed]. Barbieri R (Cth) v Rapolti; R (Cth) v Russell; R (Cth) v Speedy Corporation Pty Limited [2016] NSWCCA 264 Page 5

Court of Criminal Appeal of New South Wales Ward JA, Garling & N Adams JJ Criminal law - search warrants - interlocutory appeal (s5f(3a) Criminal Appeal Act 1912 (NSW)) against trial judge s exclusion of evidence - Speedy Corporation charged with offences under s134.2 Criminal Code 1995 (Cth) of dishonestly obtaining financial advantage by deception - 2 directors of corporation also charged with aiding and abetting - allegation that corporation imported aluminium road wheels from China, but dishonestly held them out as having originated in Malaysia to avoid anti-dumping duties - a computer tower and business records were seized pursuant to a search warrant issued under s198 Customs Act 1901 (Cth) (the s198 warrant ) - these items were held by the Cth DPP (CDPP) - on day one of the trial, the respondents applied to have certain documents excluded and a voir dire was commenced to determine that issue - on that day, at the request of the Crown, the Australian Federal Police (AFP) executed a search warrant under s3e Crimes Act 1914 (Cth) at the Sydney offices of the CDPP, seizing the documents sought to be excluded (the s3e warrant ) - the trial judge ruled that the seized material was inadmissible as being improperly obtained (s138 Evidence Act 1995 (NSW)) - the CDPP appealed - the threshold issue was whether the ruling eliminates or substantially weakens the prosecution case (s5f(3a) Criminal Appeal Act 1912) - held: the phrase prosecution case in s5f(3a) was the case presented by the CDPP on the voir dire - R v Shamouil (2006) 66 NSWLR 228, R v SJRC [2007] NSWCCA 142 referred to - here, the ruling eliminated the Crown case and accordingly the appeal was competent - the parties accepted that a search warrant could not be issued under s198 for offences under s134.2 of the Code, but disagreed as to whether s203r Customs Act 1901 (Cth) permitted the material seized under the s198 warrant to be used in a prosecution under the Code even when it was not seized for that purpose - s203r is concerned with the circumstances under which seized material can be retained, but the power to retain must be for a particular purpose - possession, use, retention are connected concepts & seizure and subsequent retention are prerequisites for the ultimate use of the material - proceedings must be construed as meaning proceedings for offences specified in s183ua - here, the s198 warrant was issued in a prosecution for breaches of ss234(1)(a) & (b) Customs Act 1901 - prosecutions for those breaches are civil in nature - the authorities (eg ASIC v Rich [2005] NSWSC 62) establish that material seized under a warrant issued in respect of criminal proceedings cannot be used in civil proceedings - a fortiori material seized in civil proceedings cannot be used in criminal proceedings - no error identified in trial judge s ruling on the construction of s203r Customs Act 1901 - the trial judge s ruling on s138 Evidence Act 1995 was a discretionary ruling which required balancing the concepts of desirability and undesirability - see Parker v Comptroller-General of Customs (2007) 243 ALR 574, [57] - here, there was no power to retain the seized material, so that the issue was whether on all the evidence it was open to the trial judge to find that the retention of the material through the execution of the s3e warrant constituted a serious, deliberate and easily avoidable impropriety within s138 - see DPP v Carr (2002) 127 A Crim R 151, [82] - the power to issue and execute a search warrant is to be exercised with great care (George v Rockett (1990) 170 CLR 104, [4]-[5]) - the trial judge s findings that the use of the s3e warrant constituted an abuse of power was clearly open to her (see the factors set out at [210]-[217]) - this was a Page 6

deliberate decision to involve the AFP in a round robin exercise to seize and launder the material when the court was conducting a voir dire on the very issue of its admissibility - seizing the material by use of the s3e warrant constituted obtaining it improperly - appeal dismissed. Rapolti; Russell; Speedy Corporation Pty Limited R v Obeid (No 12) [2016] NSWSC 1815 Supreme Court of New South Wales Beech-Jones J Criminal law - sentence - offender convicted of common law offence of wilful misconduct in public office - object of the offence is to ensure a public official does not abuse intentionally the trust reposed in him or her (see DPP v Marks [2005] VSCA 277, [35]) - here, the essence of the criminality alleged was that the offender intentionally abused the public trust reposed in him as a member of the Legislative Assembly of NSW by using his position to make representations to a senior officer of the Maritime Authority of NSW to advance the financial interests of himself or his family - held: the jury was directed on the elements of the offence: (i) the offender was a public officer; (ii) in making the representations he acted in the course of or in connection to his public office; (iii) in so acting he wilfully misconducted himself; (iv) his conduct was misconduct that was serious and merited criminal punishment (see R v Quach (2010) 201 A Crim R 522, [46]; Obeid v R [2015] NSWCCA 309, [133]-[142] - judge satisfied beyond reasonable doubt that the misconduct was intentional - the offence here was not an omission to disclose the interest of himself or his family, rather, the proper performance of his duty as a parliamentarian required that he not communicate with the Maritime Authority officer for the purpose of advancing his or his family s pecuniary interests - the offender did not give evidence at his trial or on sentence and relied upon a report from a psychologist - this means of adducing evidence on sentence is problematic as the offender s version cannot be tested (R v Qutami [2001] NSWCCA 353, [58]-[59]) - the offender s explanation in the psychologist s report rejected as inconsistent with the jury verdict - while the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to the common law offence, resort to the common law is required to ascertain the principles to be applied to sentencing a parliamentarian convicted of wilful misconduct in public office - an analogous, or corresponding statutory offence is to be adopted as a reference point (R v Hokin, Burton & Peisely (1922) 22 SR (NSW) 280, 291) - the appropriate analogue charge was the offence of corruptly receiving commissions (Pt 4A Crimes Act 1900 (NSW)) - no relevant sentence decisions identified - a number of authorities referred to and considered - the importance of general deterrence and denunciation over other sentencing considerations identified - prior good character of offender to be given less weight than it would receive for other offences (R v Rivkin (2004) 59 NSWLR 284, [410]; R v Williams (2005) 152 A Crim R 548, [60]; Blackstock v R [2013] NSWCCA 172, [67]) - the offender s conduct was a very serious example of the offence because of the onerous nature of the duty owed by him as a parliamentarian - imprisonment of the offender will cause his wife significant distress, but hardship to an offender s family is only to be taken into account in exceptional circumstances (Hay v R [2013] NSWCCA 22, [49]) - publicity will only be considered as a relevant factor on sentencing where it reaches such proportion as to have a physical or Page 7

psychological effect on the offender (Duncan v R [2012] NSWCCA 78, [28]) - here, no such effect was identified, the publicity instead affecting his family - the combination of the offender s age, health and reduced life expectancy was not of any real significance on the issue of whether he should be incarcerated - here the delay between the commission of the offence and imposition of the sentence was not relevant, the offender being sentenced on the basis that he will not reoffend - no penalty other than imprisonment appropriate - special circumstances found (offender s age & health) - sentenced to 5 years, NPP 3 years. Obeid (No 12) Spanjol v The Queen [2016] VSCA 317 Court of Appeal of Victoria Maxwell P, Redlich & McLeish JJA Criminal law - causation - negligently causing serious injury while driving ( NCSI ) - applicant pleaded guilty to one charge - the victim, the applicant s girlfriend, sustained severe brain injury and other injuries when the applicant lost control of their vehicle and it struck a tree - both had been drinking and the applicant had a blood alcohol reading of 0.178% & 0.195% at the time of the collision - the victim was not wearing her seat belt, however the vehicle struck the tree on the passenger s side and it was likely that she would have sustained serious injuries even if she had been strapped in - the applicant was sentenced to 3 years, NPP 18 months - sole ground of appeal rested upon the contention that the sentence should have been reduced because of the victim s failure to take care of her own safety - the applicant referred to conflicting decisions of the Court: R v Tran (2002) 4 VR 457; R v Howarth (2000) 1 VR 593) - held: authorities considered - 5 propositions identified: (1) in a case of NCSI by driving, a finding of guilt (or a plea of guilty) establishes that the offender s driving was criminally negligent and that that driving caused the victim s serious injury; (2) in sentencing, the starting point is that the offender is solely responsible for the manner of driving and that the manner of driving was the sole cause of the serious injury, but the evidence may require these propositions to be qualified; (3) the offender, by evidence, may be able to establish that some other person (whether the victim or someone else) and/or some external circumstance, was partly responsible for the manner of driving; (4) considering the causal link with the serious injury, the offender may be able to establish that there was an additional factor outside the offender s control which was also a material cause of the injury; (5) the language of reduced responsibility is to be preferred to the language of complicity - here, the victim s knowledge of the applicant s intoxication was not capable of reducing his responsibility for the negligent driving - here, the evidence did not establish that the victim s failure to wear a seat belt was a contributing cause of her injuries - general deterrence is a major consideration in sentencing for a NCIS offence of this nature - specific deterrence was also important here as the applicant had previously been disqualified for driving while intoxicated - he had a high degree of moral culpability for his decision to drive - he pleaded guilty and was sentenced prior to the Court s decision in Harrison & Rigogiannis v The Queen [2015] VSCA 349 - had error been established, no lesser sentence would have been warranted - appeal dismissed. Spanjol Page 8

The Queen v D A & G F K [2016] VSCA 325 Court of Appeal of Victoria Ashley, Redlich & McLeish JJA Criminal law - privilege against self-incrimination - contempt - coercive powers to require answers - reasonable excuse - burden of proof - pursuant to s49(1)(b) Major Crime (Investigative Powers) Act 2004 (Vic) ( MCIPA ) the Chief Examiner applied to the Supreme Court for DA and GFK to be punished for contempt for refusing to answer questions he had put to them (s36 MCIPA) - questions arising in each proceedings were referred to the Court of Appeal as a common matter - s49(1)(b) provides that a person who without reasonable excuse refuses to answer any questions relevant to the subject matter of the examination is guilty of contempt of the Chief Examiner - held: consideration of the construction of the legislation within the context of the Victorian Charter of Human Rights and Responsibilities Act 2006 and relevant authorities - questions answered: (1) it is an element of the contempt that the person who refused/failed to answer did not have a reasonable excuse for refusing/failing to do so; (2) the person against who the contempt order is sought carries the evidential burden of raising the existence of a reasonable excuse; (3) once the evidentiary burden has been discharged, the applicant bears the legal burden of establishing beyond reasonable doubt that the respondent did not have a reasonable excuse for refusing/failing to answer the question; (4) it is not an essential precondition to an application for contempt that the Chief Examiner first give the person, during the examination, an opportunity to advance any excuse for refusing/failing to answer the question; (6) it is not an essential precondition to an application for contempt that the Chief Examiner inform the person that the excuse is not considered reasonable; (7) it is not an essential precondition to an application for contempt that the Chief Examiner allow the person to reconsider their position before commencing contempt proceedings; (8) an omission by the Chief Examiner to assure a person that the answer given will not be communicated to prosecuting authorities or used to compel the person to become a witness does prevent a finding that the person did not have a reasonable excuse; (9) an omission by the Chief Examiner to assure a person that answer given will not be communicated to prosecuting authorities or used to compel the person to become a witness does not establish that the person had a reasonable excuse for refusing/failing to answer. D A & G F K X v Callanan & Anor [2016] QCA 335 Court of Appeal of Queensland Margaret McMurdo P, Gotterson JA & Atkinson J Criminal law - privilege against self-incrimination - companion rule - derivative evidence - in 2009, Z was shot and killed at the Gold Coast - in 2011, the Crime and Misconduct Commission issued a notice to the appellant to appear at a hearing (s82 Crime and Misconduct Act 2001 (Qld) ( CMA )) - at the hearing, the respondent, the presiding officer, prohibited disclosure of any document or answer produced or given during the hearing and any information that might enable the identity of the appellant being discovered (s180(3) CMA) - the respondent also Page 9

ordered that all answers given by the appellant were made under objection, relying on the privilege against self-incrimination - the appellant was asked the whereabouts of the gun used to shoot Z and he declined to answer on the ground of reasonable excuse under s190(1) CMA - respondent determined that the appellant had no reasonable excuse & the appellant contested that ruling, resulting in the current appeal - held: Ground 1 concerns the application of the companion principle (R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 ( IBAC )) - the principle, which sits alongside the fundamental principle of the common law that the onus of proof of a criminal charge rests upon the prosecutor, provides that an accused cannot be required to testify to the commission of the offence they are charged with (see X7 v Australian Crime commission (2013) 248 CLR 92, [159]) - in IBAC the companion principle was not engaged because the appellants in that case had not been charged; there was no prosecution pending - in Zanon v Western Australia (2016) 50 WAR 1, [135]-[144] the court found that the critical time for the application of the principle was the commencement of the prosecution, so that it had no application to a compulsory examination - the common law privilege against self-incrimination and the companion principle must be construed in the light of the plurality s binding decision in IBAC - the Commission is an investigative, evidence gathering body without general powers to charge suspects or to prosecute criminal offences - there had been no breach of the common law companion principle - nothing supports the appellant s contention that the companion principle is engaged prior to the actual charging of the person claiming its protection, at least where the charging is broadly construed as including the point at which those with the power to charge a person suspect that he or she has committed an offence - the companion principle was not engaged in this instance - this ground must fail - appeal dismissed [Editor s note: The Crime and Misconduct Commission is now the Crime and Corruption Commission - see Crime and Misconduct and Other Legislation Amendment Act 2014 (Qld)]. Callanan R v Gathercole [2016] QCA 336 Court of Appeal of Queensland Margaret McMurdo P, Morrison JA & Atkinson J Criminal law - prosecutor s address - conviction appeal - appellant convicted of murder - issue at trial was whether he intended to kill or do grievous bodily harm to the deceased at the time of the killing - appellant had stabbed the deceased in circumstances where there was no evidence of any prior hostility - on appeal, appellant relied on two grounds: (1) verdict unreasonable; (2) prosecutor s final address to the jury contained inappropriate remarks that may have improperly influenced the jury and led to a miscarriage of justice - held: (1) unreasonable verdict - after reviewing the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant s guilt - ground rejected; (2) statements of the prosecutor - in conducting an Australian criminal trial, which is both accusatorial & adversarial, the prosecutor has a duty not to obtain a conviction at any cost, but to act as a minister of justice (Libke v R (2007) 230 CLR 559, [71], [1], [177]) - the central principle is that the prosecution case must be presented with fairness to the accused & unfairness may arise from the manner in which the prosecutor Page 10

addresses the jury - where no objection is taken at trial the appeal court must examine what happened at trial to determine whether there has been unfairness - if so, the question arises as to whether the appellant may have lost a chance of an acquittal which was fairly open, so that there has been a miscarriage of justice - here, the impugned passages of the prosecutor s address were unfair - the reference to the appellant s attempted suicide two months earlier was completely unrelated to the charge and potentially highly prejudicial - the prosecutor wrongly urged the jury to reason that because the appellant had attempted suicide in the past he had no respect for human life and formed a murderous intent when he killed the deceased - while the appellant s counsel did not object, the judge did not correct the prosecutor - in the absence of firm directions from the judge to disregard the prosecutor s submissions that the appellant had formed a murderous intent because he had not obtained treatment for his mental health issues; had stopped his medication and previously attempted suicide, the jury may have convicted him of murder, following the impermissible and illogical path of reasoning adopted by the prosecutor - it follows that the appellant may have thus been deprived of a chance of acquittal on the charge of murder that was fairly open to him - appeal allowed - new trial ordered. Gathercole Page 11

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