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Key decisions

  • R v Porter [2015] NSWCCA 59
  • Gall & Gall v R [2015] NSWCCA 69
  • Ceissman v R [2015] NSWCCA 74

R v Porter [2015] NSWCCA 59

In Porter, the NSW Court of Criminal Appeal (CCA) (Adamson J, Harrison J agreeing, Simpson J agreeing with some additional observations) was bemused by the absence of clear agreed facts and suggested the appropriate course practitioners should be taking when there are disputed facts.

The appellant turned up at the victim’s house, apparently to level accusations about the victim’s son. The appellant was hiding a machete behind his back and during a scuffle, struck the victim on the arm with it. The victim’s son went inside to arm himself but when he reappeared the appellant fled.

On sentence the Crown tendered a ‘Statement of Agreed Facts’, but there was a dispute about how the victim’s son had armed himself, and whether there had been provocation and threats by those on the ‘victim’s side’. The appellant gave evidence on sentence which was inconsistent with parts of the statement of facts. No evidence was called which was directly contrary to the offender’s version.

In the CCA, the appellant’s counsel described the evidence as ‘unchallenged’, but the Court preferred the term ‘uncontroverted’, since the contrary had actually been put to the offender in cross examination. The CCA found they were not bound to accept the offender’s version just because no evidence was called to controvert it (at [36]).

Most importantly, though, the Court was displeased that the factual dispute had not been explicitly defined. The Court said it is desirable that agreed facts are signed by or on behalf of the offender and the Crown and ‘[w]here there are disputed facts it is necessary that any dispute be described with some precision so that it can be recorded on the transcript, if not in a document. Any evidence relating to the disputed [facts] can then be adduced and the issue determined … by the sentencing judge …’ (at [39]).

They went on to talk about cases where negotiations continued up to sentence. In those circumstances, the Court proposed that a typed draft be brought to court and amended, by hand if necessary, so everybody knows what the facts are on any appeal. All fantastic guidance – provided everybody has the appropriate instructions, delegations, and time to approach things that way.

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