Undercover police officers, posing as gangsters, lure a suspect into joining their "gang". However, to become an official member of that gang, the suspect is tricked into proving their trust and loyalty to Mr Big, the gang's ultimate boss, by confessing to a serious crime they have committed. Once the confession is extracted, the suspect is arrested and that confession is used as evidence against them at trial. This article analyses Mr Big operations through the public policy lens of s 138 of the Uniform Evidence Act. This provision confers discretion upon the court to exclude evidence obtained illegally or improperly. As a matter of public policy, as distinct from an individual's right to be treated fairly, this article argues that Mr Big operations are contrary to the minimum standards of acceptable police conduct. That argument is made in this article on the basis that Mr Big operations improperly subvert the right to silence.
Australian police and prosecutors use surveillance recordings of conversations, events, and telephone calls to investigate, prosecute, and prove serious criminal offences. Some of those recordings contain coded and ambiguous language, which is often used by criminals to disguise or conceal the topic of conversation. Prosecuting authorities often adduce evidence from police officers who claim expertise in identifying and interpreting conversations containing codes and ambiguous language. This article analyses the current approach to that evidence. It argues that courts do not have a complete concept of police-witness expertise and apply Australia's admissibility framework to their testimony inconsistently. In particular, I criticise the courts for failing to distinguish between the different types of evidence police-witnesses give, and for neglecting the conscious and unconscious role of contextual information in police-witness efforts to identify codes and attribute meaning to communications.
The Queensland, New South Wales and Northern Territory Governments passed "Post and Boast Laws":these laws created a standalone offence for offenders who make social media posts that brag about having committed certain specific criminal offences. The South Australian and Western Australian Governments are currently considering implementing a similar law. However, there is no evidence to show that Post and Boast Laws are likely to be effective, and judicial officers can already take social media posts that discuss a crime that the offender committed into account in sentencing. This article suggests important changes to the Post and Boast Laws so that they result in less posts that brag about crime on social media and governments use education and diversionary measures to try to prevent young people from making these posts. This is the first scholarly article, to the author's knowledge, that examines this very important and controversial issue.
Perceptions of effective cross-examination of children sit on a spectrum as long as the bar tables that dominate adversarial courtrooms. At one end are views that "best-practice" cross-examination is whatever creates reasonable doubt; at the other are views that children can, and should, always be questioned in developmentally appropriate ways with the child's wellbeing the priority. The present study explored this concept of "best-practice" cross-examination via interviews with judges, prosecutors, defence barristers, and academics. Participants unanimously acknowledged that definitions of best-practice crossexamination are complex, impacted by factors such as the rules of evidence and procedure; practitioner's skills; duties owed to the court and client; and recently introduced special measures. Nevertheless, participants agreed there was substantial opportunity for skilled practitioners to challenge children's evidence without exploiting their limited cognitive, emotional, and social abilities.
Over 100 years ago, Australian jurisdictions enacted rights to criminal appeals by copying those previously established in Britain. More recently, most Australian jurisdictions have enacted rights to a second or further appeal. In doing so, they adopted the wording from provisions which had been used to allow prosecutors to retry a person after they had been acquitted. In both cases, the copying of the earlier provisions failed to take account of important differences between the context in which they were initially enacted and the context in which they were later adopted. This has led to unfortunate consequences. Britain has gradually simplified the criminal appeal provisions and established a Criminal Cases Review Commission. Australia retained the initial confusing appeal provisions and added greater complexity and variations through the adoption of the additional appeal rights. It has no review Commission. It is time for a rethink on Australian criminal appeals.
Mr McCuskerAC CVO KC recalls his involvement with three Western Australian cases (Mallard, Mickelberg and Austic). In retracing crucial aspects of each of these matters, Mr McCusker observes how in each case luck played a crucial part-bad luck leading to the wrongful conviction and good luck facilitating the exoneration. Mr McCusker makes the point that justice for the wrongfully convicted should not depend on chance and that to strengthen the system there is a need for a Criminal Cases Review Commission to take on the work that, in these cases, only happened by good fortune.
In December 2023, in a 3-2 split, the High Court refused Derek Bromley's special leave application to appeal the Court of Criminal Appeal of South Australia's decision refusing permission to bring a second appeal against his 1985 murder conviction. The authors appeared for Mr Bromley in this application and provide their reflections on the High Court's decision in this article. Keim considers the majority's decision to refuse special leave and Lane discusses the minority's decision that would have granted special leave and replaced the convictions with acquittals. The whole article contains analysis and opinions shared by both authors.
Bob Moles is one of Australia's leading experts in wrongful convictions. In this article he traverses the controversial career of Dr Colin Manock. By all accounts, during his professional life, Dr Manock appears to have misrepresented his qualifications and engaged in malpractice. As Bob demonstrates here, the time has come for Australian governments, who drew on Manock's self-proclaimed expertise in ways that resulted in convictions, including that of Mr Derek Bromley, to re-examine this body of work and the extent to which it has resulted in many possible miscarriages of justice. This article refers to the deaths of an Aboriginal boy and of an un-named Aboriginal man. Advice was sought from Elders in the interests of justice and of the families and communities involved.
Australia is currently reconsidering the age at which a child can be dealt with in criminal proceedings. Some jurisdictions have already raised the minimum age of criminal responsibility (MACR) to 12, some plan a further increase to 14 in the near future and one did increase the MACR but has already reduced it back to 10. This article adds to this ongoing debate about reforming the MACR in Australia. It takes as a framework criticisms recently put forward against raising the MACR in an article published in 2023 by Andrew Hemming entitled "Criminal Responsibility: Older but No Wiser". It reviews these criticisms and reasserts the validity of arguments supporting an increase in the MACR. It also addresses further reasons for raising the MACR, including the dominant characteristics of children in the criminal justice system and their need for support outside that system. The article then explores recent changes and reform initiatives related to the MACR, including whether there should be carve outs for serious offences and whether there is still a need for the presumption of doli incapax.
Throughout Australia, forfeiture regimes confiscate assets acquired from, used in, particular types of criminal offending, or, more accurately, those owned or subject to the effective control of criminal offenders. In South Australia, one relevant kind of offender is the "prescribed drug offender". Section 6A(1)(b) of the Criminal Assets Confiscation Act 2005 (SA) provides that a person is a prescribed drug offender if "the person is convicted of a serious drug offence ... and the person has at least two other convictions for prescribed drug offences". Does a convicted person whose convictions are entered simultaneously, rather than sequentially, answer that description? By majority, the South Australian Court of Appeal in Donnelly v Director of Public Prosecutions (SA) answered that question in the affirmative. This article analyses that decision and argues that, of the competing interpretations s 6A(1)(b) adopted, the majority's better accords with orthodox interpretive principles.
This article tells the stories of two First Nations men found not guilty by reason of cognitive impairment who were subjected to human rights violations in custody. The experiences of the two men are described and compared. This article reflects on the merits of their different pathways to better outcomes, and the failure of Australia to implement its international human rights obligations properly.
Crime and punishment are among most politically and socially controversial subject areas in the United States. Over the past decade, there has been a general softening of the severity of sanctions, following the tough on crime era that occurred in the previous four decades. Against the backdrop of a large increase in crime in recent years, there are signs that parts of the United States are reverting to a more punitive setting. This article discusses the key sentencing reforms in the United States in 2024.
This article argues that ss 17(1) and 17A of the Summary Offences Act 1966 (Vic), which criminalise various forms of anti-social behaviour in public, are outdated, poorly drafted, and obscure the policy basis for the criminalisation of such conduct. More than 20 years after a parliamentary committee review founds 17 was unsatisfactory and should be revised, no substantive reforms have yet been enacted. This article argues that the provisions should be repealed and proposes a new suite of public order offences to replace ss 17(1) and 17A. The proposed offences target different forms of disorderly conduct in public: a base offence of disorderly conduct in public, followed by, in order of increasing gravity, disorderly and offensive conduct in public, disorderly and abusive conduct in public, and disorderly and threatening conduct in public.
Recent decisions of the New South Wales Court of Criminal Appeal have explored the "vexing" relationship between objective seriousness and moral culpability in the context of sentencing, and, how "causative" subjective features such as mental illness or childhood deprivation may impact upon those assessments. The varying usage and meanings behind "causation" leaves the authorities in a somewhat uncertain state. This article suggests causation ought to be viewed as a matter of degree, where the extent of the impact upon moral culpability and objective seriousness is a function of the proximity of the subjective feature to the offending, rather than the continued use of threshold tests of "sufficient" proximity.
The murder of Hannah Clarke and her three children in 2020 was a catalyst for the Women's Safety and Justice Taskforce recommendation that CC be a criminal offence in its own right in Queensland. This article examines the scope of CC, the harm done to victims of CC, and the pros and cons of criminalising CC. A comparative analysis of the Scottish CC offence, which is described as the "gold standard", the new New South Wales and the new Queensland CC offence, is undertaken in this research. Most notably, the new Queensland CC offence is broader than the Scottish CC offence, and thus has capacity to capture more CC behaviour. Both Queensland, New South Wales and Scotland could improve the protection of children as primary and co-victims.
Many methods of physical punishment used by parents, such as smacking, hitting, and grabbing, if done without consent or lawful justification or excuse, would amount to criminal assault. The defence of lawful correction permits parents and others acting in their place to use reasonable force to punish children in their care. This article undertakes a comparative doctrinal analysis of the lawful correction defences across the Australian States and Territories current to September 2023. This analysis examines the limits on lawful physical punishment by parents provided by the lawful correction defences and identifies areas of uncertainty and inconsistency in both law and application
The double jeopardy rule protects persons from being tried and punished twice for the same offence. In Queensland, limited exceptions to this rule have been in operation since 2007. For example, an acquitted person can be retried for murder, where there is "fresh and compelling evidence", and the re-trial is in the interests of justice. In 2023, after the discovery of DNA testing failures at a state-run Queensland forensic DNA laboratory, the Queensland government introduced a bill expanding these exceptions to additional offences. The bill became law in March 2024. This article ponders whether double jeopardy law reform was needed to respond to the DNA lab shortfalls. It considers the problem, how the new double jeopardy law reform responds to it and whether the introduced law is an appropriate remedy.
Section 22B of the Bail Act 2013 (NSW) requires an offender to show special or exceptional circumstances before they are released into the community. The provision applies after conviction and before sentencing. However, it is unclear whether the phrase "before sentencing" applies to an offender who has appealed against their Local Court sentence to the District Court. The question has not been considered by any higher court. This article concludes that s 22B does apply to appeals bail, mainly because any other interpretation would defeat its purpose.
This article discusses all of the High Court decisions in 2023 that relate to criminal matters. It examines the principles that derive from these cases and identifies jurisprudential themes from the decisions. It discusses in detail four of those decisions.
