LSJ - June 2014



By Thomas Spohr, solicitor, O«ce of the Director of Public Prosecutions

McKellar v DPP [2014] NSWSC 459 In an appeal from the Local Court, the Supreme Court has confirmed the right of an accused person to appear by way of legal representative rather than physically in court. Lawyers and Magistrates everywhere can rejoice in the absence of all those defendants who just got in the way of work. The appellant was charged with larceny. She did not attend court, but was represented. Having refused an adjournment application by her lawyer, the Magistrate dealt with her as though she was not present, pursuant to s196 of the Criminal Procedure Act 1986 (NSW). On appeal (with the agreement of the Crown, who accepted error on the part of the Magistrate), Adamson J found that the combination of s3 and s36 of that Act meant that s196 (which allows a court to convict an accused in their absence) did not apply. Similarly, s38 did not require her personal attendance, and the consequence ought to have been that the Magistrate, having refused the adjournment application on behalf of the appellant, should have proceeded to hear the evidence on the hearing, rather than just convicting the accused as though she were not there. Adamson J also went on to reduce the overflowing work of the Local Court somewhat by finding that, assuming the accused was not present and not represented (i.e. genuinely not there at all), s199(2) did not require a prosecutor to tender the brief – the Magistrate could have dealt with it on the basis of the CAN alone, subject to anything the prosecution sought to tender and anything the accused had put by way of written pleading. Note that although this case deals with the physical absence of the accused where they are represented, there is no discussion of bail or its interplay with the above provisions. Nothing in the decision appears to detract from the proposition that an accused person who is bailed to appear on a particular date will still be required to (physically) appear unless a bail condition allows them to appear by way of legal representative. Peiris v R [2014] NSWCCA 58 There have been lots of cases about using sentencing statistics, the caution to be

that to [48] of Hili , but even that paragraph concludes with “… the circumstances attending [o©enders’] o©ending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results”. That is not to say that the sentencing judge’s approach might not have been in error; merely that his Honour Leeming JA, in carefully analysing the error by reference to the statistics, might have compounded it a bit. His Honour, apparently conscious of the possibility that his analysis was problematical, “acknowledge[d] that if the position were less clear-cut, it would not be available.” The upshot seems to be that where there are solid statistics and a “clear-cut” case, numerical analysis might be warranted. In spite of that, the smart advocate will probably continue to steer clear from too-specific use of statistics for fear of leading a sentencing court into error (and to avoid the danger of having to read and understand numbers). KJS v R [2014] NSWCCA 27 In a judgment that might reinforce the confusion of any person who has ever attempted to understand the finer distinctions of tendency evidence, the Court of Criminal Appeal has handed down a decision on context (relationship) evidence. The case is helpful both because it lists (at [34]) some bases where evidence that otherwise looks like tendency might in fact be context evidence, but also because it implicitly sets out the approach to be taken aggravated sexual assault, both against his daughter. For some reason the decision also mentions in passing that he had previously been convicted of murdering his wife; presumably the less-than-unblemished character of the appellant played no part in the outcome. The two counts on the indictment were described by the trial judge as “dramatic”. As part of the case against the appellant, the Crown had led evidence of other, less dramatic, conduct of a sexualised nature. The evidence was led, first, to show that the two counts on the indictment were not isolated – to leave the evidence out would have resulted in an artificial perception that those dramatic incidents were isolated when they were not, which might seem to objecting to evidence of that kind. The appellant was convicted of an aggravated indecent assault and an

Viewed in that context, the approach taken by the CCA in Peiris is a little hard to reconcile. Maybe you can use them with quite a bit of mathematical precision indeed – where there are “ample data”. The appellant was convicted in the District Court of o©ences that could have been dealt with in the Local Court (they were dealt with together with a strictly indictable charge). The question was whether the o©ences (one under s61M(1) and one under s61M(2)) required fulltime custody rather than the suspended sentence the o©ender was asking for. The sentencing judge made reference to the Local Court statistics when he sentenced the o©ender to fulltime custody. He found that the sentences were “below mid range but above low range” and said that he had “… considered the sentencing statistics for such o©ences in the Local Court. Although it [was] di«cult to extract precise or analogous details from the statistics and to compare them with the like matters in the District Court, the sentences [he was considering were] within the range of comparable sentences for the relevant time periods, for the same o©ences.” On appeal, the error was said to be that the sentence his Honour eventually imposed – fulltime custody of 18 months with a non-parole period of nine months – was inconsistent with the finding he had made about the seriousness (below mid-range), compared with the statistics. Those statistics showed that at least half of o©enders didn’t go to gaol (“majorities of o©enders ranging between 57 per cent and 64 per cent are not sent to prison, while minorities between 36 per cent and 43 per cent are”). The sentencing judge did not give a detailed explanation as to how that discrepancy occurred and that was an error. Although Leeming JA, who wrote the leading judgment, made reference more than once to the High Court decision in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520, his Honour’s careful analysis of the statistics does not mesh neatly with the proposition in that case that “the consistency that is sought is consistency in the application of the relevant legal principles , not some numerical or mathematical equivalence” (emphasis added). Leeming JA distinguished the present case on the basis that there are ample data and contrasted

exercised, and the non-mathematical approach that ought to be taken to sentencing generally.

86 LSJ I JUNE 2014

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