Cases and authorities

Practice and procedure – High Court of Australia – Non-publication order – Application for non-publication order under s 77RE of Judiciary Act 1903 (Cth) – Application for special leave to appeal from orders of Court of Criminal Appeal of Supreme Court of New South Wales dismissing appeal from refusal of single judge to quash indictment or permanently stay criminal proceeding – Application in High Court for stay of criminal proceeding pending determination of special leave application – Respondent applies for non-publication order concerning information tending to reveal identity of applicant – Whether non-publication order should be made. Judiciary Act 1903 (Cth), ss 77RE, 77

CRIMINAL LAW AND PROCEDURE - Sentence - Crown appeal - Fire set in store in order to make insurance claim when business failing - Offender's significant prior record - Sentences and order for suspension manifestly inadequate

Criminal Law - Proceedings for trial - Sentencing - Crown Appeal - maliciously inflict gbh upon a child by father - pleas of guilty - no alternative to full-time custody available - whether bonds manifestly inadequate - respondent re-sentenced.

CRIMINAL LAW – Trial – Stay of proceedings – Adverse publicity – Appropriate order

Family law – Family Law Act 1975 (Cth) – Spousal maintenance – Conditions for making or discharge of interim spousal maintenance orders – Interim spousal maintenance order in favour of wife – Application to discharge by husband – Where wife's father's will expressed wish that wife receive voluntary annual payment from family business controlled by wife's brothers – Meaning of "financial resources" under s 75(2)(b) – Whether confined to present legal entitlements – Whether finding open on evidence that wife able to support herself adequately – Whether just cause for discharge of spousal maintenance order. Courts and judges – Procedural fairness – Whether party on notice of possibility of factual finding being made – Whether party denied opportunity to lead further evidence. Words and phrases – "financial resources", "source of financial support", "support himself or herself adequately". Family Law Act 1975 (Cth), ss 72, 74, 75, 83.

CRIMINAL LAW - appeal against sentence - whether sentencing judge erred by quantifying the discount afforded for guilty plea and assistance separate to other sentencing considerations - combined discount for guilty plea and assistance - whether sentencing judge deviated from instinctive synthesis approach - appeal dismissed

Criminal law – Sentence – Statutory aggravating factors – Double counting of age of victim – Crimes (Sentencing Procedure) Act 1999, s 21A. - Criminal law – Sentence – Standard non-parole period – Middle range of objective seriousness – Degree of penetration – Sexual assault of child under 10 years – Crimes Act 1900, s 66A. - Criminal law – Sentence – Statutory mitigating factors – Risk of re-offending – Crimes (Sentencing Procedure) Act 1999, s 21A. - Criminal law – Sentence – Whether error in greater sentence for less serious offence

Constitutional law (Cth) – Trial by jury – Trial on indictment for offence against Commonwealth law – Where applicant pleaded not guilty in Supreme Court to charges on indictment under Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) – Where applicant sought trial by judge order under State law empowering State courts to order trial by judge alone – Whether application of State law to applicant's trial inconsistent with Constitution, s 80. High Court – Stare decisis – Whether Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 should be re-opened and overruled. Words and phrases – "elective mechanism", "indictment", "interests of justice", "shall be by jury", "State court principle", "trial by judge alone", "trial by judge order", "trial by jury", "trial on indictment", "waiver of trial by jury". Constitution, s 80. Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), ss 7, 9A. Judiciary Act 1903 (Cth), s 68. Criminal Procedure Act 1986 (NSW), s 132.

CRIMINAL LAW - application for leave to appeal against severity of sentence - pleas of guilty - multiple offences - receiving stolen property - disposing of stolen property - possession of stolen property - failure to give proper allowance for total pre-sentence custody - appeal allowed - commencement dates adjusted

CRIMINAL LAW AND PROCEDURE - Sentence - No special point of principle

CROWN APPEAL - s 11 adjournment respondent suffering from psychiatric illness - period of full-time custody served before the order

CRIMINAL LAW AND PROCEDURE - Attempt to possess imported narcotic - Conviction after trial - Sentence - Whether manifestly excessive - Particular circumstances - No special point of principle

SENTENCE manslaughter - unlawful and dangerous act - domestic argument - punches to head

CRIMINAL LAW - appeal under s 5F of the Criminal Appeal Act - application for adjournment or dismissal of proceedings - notice of motion dismissed - grounds of appeal - judicial error - judicial bias - admissibility of documents - admissibility of evidence a matter for the trial judge - judicial bias not a ground for stay of proceedings - withdrawal of pleas of guilty - leave to appeal refused

Local government – Town planning – Proprietary rights – Suspension of proprietary rights by planning instrument – Ku-ring-gai Local Environment Plan No 194 ("LEP 194") amended Ku-ring-gai Planning Scheme Ordinance ("Ordinance") to effect rezoning of certain land – Purported effect of rezoning was to render unenforceable a restrictive covenant which burdened land owned by third respondent for benefit of land owned by appellant – Section 28 of Environmental Planning and Assessment Act 1979 (NSW) required that planning instrument which rendered unenforceable a restrictive covenant be approved by Governor acting on advice of Executive Council – Whether LEP 194 "provide[d] that" restrictive covenant "shall not apply" – Whether restrictive covenant unenforceable where failure to comply with s 28 when amending Ordinance. Words and phrases – "environmental plan", "environmental planning instrument", "provide", "regulatory instrument". Environmental Planning and Assessment Act 1979 (NSW), s 28. Local Government Act 1919 (NSW), Pt

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment including detention by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act constituted usurpation of judicial power – Whether provisions had prohibited features of bill of pains and penalties. Constitutional law (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether acquisition by Commonwealth of plaintiff's cause of action for false imprisonment. Torts – False imprisonment – Liability of Commonwealth for acts of members of defence force – Detention of plaintiff a disciplinary measure applied by one member of defence force to another – Detention in obedience to command of superior – Command of superior lawful on its face – Whether action for false imprisonment destructive of military discipline – Whether action for false imprisonment available to plaintiff. Words and phrases – "bill of pains and penalties", "false imprisonment", "military discipline", "usurpation of judicial power". Constitution, ss 51(vi), 51(xxxi), Ch III. Defence Force Discipline Act 1982 (Cth), ss 3, 27, 68, 170, Pt VIIIA. Military Justice (Interim Measures) Act (No 2) 2009 (Cth), Sched 1, items 3, 4, 5, Pt 7.

CRIMINAL LAW - aggravated kidnapping - SENTENCING - early plea - no direct evidence of causal connection between appellant's mental health and commission of offence - sentence not manifestly excessive

CRIMINAL LAW AND PROCEDURE - Sentence - Relevance of prior record - No error of application by sentencing judge - Imposition not manifestly excessive

CRIMINAL LAW AND PROCEDURE - Sentence - Drug trafficking - Ongoing supply and knowingly concerned in one further supply - Co-offender involved only in that further supply - Parity - No special point of principle

CRIMINAL LAW AND PROCEDURE - "Mixed" verdicts of guilty and not guilty - Uncorroborated evidence of complainant - Rational basis for discrimination - Sentence - Crown appeal - Imposition within discretionary range

CRIMINAL LAW AND PROCEDURE - Sentence - Pre-sentence custody - Desirable practice of backdating affirmed - No error in adopting different practice when allowance clearly demonstrated

CRIMINAL LAW – appeal against conviction and sentence – guilty plea accepted in full satisfaction of indictment – whether conviction on basis of guilty plea ought to be quashed – complainant retracted complaint after conviction but prior to sentence – new trial ordered

Criminal Law - Appeal - application for leave to appeal against refusal of permanent stay - trial proceeding - prior applications abandoned - whether leave should be refused.

CRIMINAL LAW – Section 5F application – applicant charged with multiple sexual offences – pre-trial evidence – allegation from witness that statement was incorrect and signature a forgery – allegation that witness made a deal to give information about the applicant to a television program – whether applicant denied a fair trial if allegations not investigated – whether enquires by a handwriting expert could produce admissible evidence

BUILDING CONTRACTS - Building and Construction Industry Security of Payment Act 1999 (NSW) - progress claim served on superintendent - whether service of progress claim on superintendent that is also a payment claim under the Act constitutes valid service of payment claim on owners corporation for the purpose of s 31 - no stipulation in contract authorising service of payment claim on superintendent on behalf of owners corporation - whether as a matter of practice parties objectively intended that progress claims that are also payment claims under the Act may be delivered as one document to superintendent.

Appeal against sentence - rob landlady armed with a weapon - reference to “gratuitous” violence - whether a breach of De Simoni principle - whether sentencing judge erred in finding the offender breached a degree of trust

CRIMINAL LAW – sentence appeal – break and enter with intent to commit serious indictable offence – form 1 matters taken into account – applicant on parole at time of offences – finding by trial judge of a more serious offence than as charged – error accepted by the crown – obligation to sentence based on offences pleaded – whether court of appeal should intervene – whether sentence manifestly excessive

CRIMINAL LAW – Appeal against sentence – Grounds for interference – consideration of plea of guilty – remarks by sentencing judge in the course of submissions – consideration of aggravating circumstances

Appeal against conviction - robbery inflicting grievous bodily harm - appellant did not give evidence at trial - no directions given about the right to silence - omission not identified by prosecution or defence counsel - Azzopardi direction required

CRIMINAL LAW- Appeal - Application for leave to appeal against sentence - Lack of reasons for not setting non-parole period - Cumulation of sentences - Relevance of intention with which offence committed

CRIMINAL LAW AND PROCEDURE - Supply of prohibited drug - Incidental involvement of offender - Assisting in delivery from home of his partner to her brother - No suggestion of commercial or other interest by offender - Low level of criminality - Co-offenders sentenced for other offences and as actual dealers - Parity - Difference in sentence justifying sense of grievance in appellant

Criminal Law - Break, enter and steal from bank - Discount for plea of guilty and assistance of almost 60 per cent - whether adequate - whether periodic detention order should have been made.

PRACTICE - Interlocutory relief pending application for special leave to appeal to High Court - Balance of convenience not clear - Appeal assessed as not having strong grounds.

CASE STATED - HEARING IN DISTRICT COURT ON APPEAL FROM LOCAL COURT - LIMITED NATURE OF PROCEDURE AFFIRMED - WHETHER ISSUES RAISED SHOULD HAVE BEEN CONSIDERED - AFFIRMATIVE ANSWER

CRIMINAL LAW: appeal from Drug Court sentences - extent of jurisdiction of Court of Criminal Appeal

CRIMINAL LAW - APPEAL - SENTENCE APPEAL - no identifiable error - no manifest error - no basis for intervention of court.

CRIMINAL LAW - Appeal against sentence imposed in the Drug Court - supply and possess prohibited drug - single heroin dose - prior convictions for driving offences - breach of earlier imposed suspended sentences - unsuccessful participation in Drug Court Program.

CRIMINAL LAW - Crown appeal on sentencing - Evidence sought to be led by respondent - Whether fresh evidence - Whether should be admitted in the interests of justice.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act had prohibited features of bill of pains and penalties – Whether provisions invalid as contrary to Ch III. Words and phrases – "bill of pains and penalties", "usurpation of judicial power". Constitution, s 51(vi), Ch III. Defence Force Discipline Act 1982 (Cth), ss 27, Pt VIIIA. Military Justice (Interim Measures) Act (No 2) 2009 (Cth), Sched 1, items 3, 4, 5, Pt 7.

CRIMINAL LAW AND PROCEDURE - SENTENCE - OFFENDER PUNISHED FOR STEALING - LATER PUNISHED FOR BREAK ENTER AND STEAL - NO DUPLICATION OF PARTICULARS OF LOOT - ASSERTION OF APPEARANCE OF DOUBLE PUNISHMENT - DISCOUNTS FOR PLEAS OF GUILTY AGAINST UNSTATED ASSESSMENTS OF TERMS OF IMPRISONMENT - CASE MADE FOR INTERVENTION

Criminal Law - Sentencing - Delay in prosecuting child sexual offences in NSW after applicant charged and sentenced in Queensland - whether insufficient account taken of the delay and effect of it upon the applicant - whether in light of the delay partially accumulating sentences were warranted - formal defect in pronouncement of sentences.

CRIMINAL LAW AND PROCEDURE - Trial - Failure to caution jury concerning election of accused not to give evidence - Omission due to oversight - No request by counsel - Direction required in circumstances - Evidence of sample selection following pointing to locations by trained dog - No error in admission of evidence - No special warning required as probative evidence was sample analysis not site selection