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The wife was rescued by 3 members of the public & the applicant was held by these people until police arrived. Applicant apprehended following a covert police operation in which he had agreed, following receipt of cash, to supply heroin. NSW Mental Health (Criminal Procedure) Act ss.14, 24, 26. Crown alleged that appellant's de facto placed appellant's daughter's hand on his penis & used it to masturbate while the appellant sat next to him.Sentence too harsh - insufficient weight given to subjective material. POLDEN, James Pryde MITCHELL, Kim Michelle - CCA, Sentence appeal. Polden played a more significant role in commission of the 2 offences in which Mitchell was involved & also faced punishment for 3 further offences. Sentences manifestly excessive - error in sentencing process - parity. Appellant made no attempt to stop the activity nor to bring the matter to the attention of the authorities. The common law offence of misprision of felony was abolished in 1990. Held: Common law rule that a married woman is immune from prosecution for misprision of felony where the felony is committed by her husband should not be extended to de facto wives. MADDOCKS, John David - CCA, Appeal against stated case.Pleaded not guilty - in poor health, suffering from Parkinson's disease - maintained innocence - declined to participate in sentencing proceedings - assistance to authorities. A passer-by came to her rescue & he was kicked in the chest. Accused & wife saw each other during this period & on occasions had sexual relations.Admitted to long history of armed robberies - already imprisoned for murder - distributed heroin on large scale - paid bribes to corrupt police to avoid consequences of his criminality - gave false evidence in 2 judicial proceedings, one of which was to conceal a murder. A second passer-by came to assist & the applicant was detained until the police arrived. Accused believed their separation was temporary & they would be reconciled.This led to him being charged with the above charges. GATIEN, Paul Anthony - CCA, 9.12.98Conviction appeal. Appellant indicted on 7 counts, 6 were for sexual offences & one was for AOABH.The judge directed the jury to acquit on counts 1, 2 & 3.Assistance to authorities - proportionality - discount - parity - sentence manifestly excessive.

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At the hearing he denied going into the national park with a rifle, however, later a rifle bearing the respondent's name was discovered in the park.Prior good character - good rehabilitation prospects - break-up of long-term relationship & death of father figure - parity. N - CCA, 8.12.98Application for leave to reopen hearing of issue dealt with by CCA (differently constituted) on 21.7.98 - operation of s.126H Evidence Act 1995 in its application to proceedings outside of trial itself, for example on return of subpoena.During the previous CCA hearing the Court was given misinformation concerning application of District Court Rule Pt.29 r.1. Count 3: knowingly take part in supply of heroin - concurrent FT 3y.The Court was advised on the day following the hearing & it was directed that application for leave to reopen be listed before the CCA in the ordinary course. Joint enterprise - applicant's sister charged with 2nd & 3rd counts.In the meantime, the CCA has heard extensive argument about the same issue in another matter & reserved its judgement. The 1st count related to a transaction which formed part of the larger enterprise in which both sisters were involved which police observed when conducting surveillance. Applicant involved in enterprise for more than 7 months. Before arraignment, sentencing judge refused application by appellant that counts 9 & 10, based on identical facts, should not be permitted to stand together on basis of double jeopardy.Both counts alleged inflicting GBH, one count maliciously & with intent to do GBH. Proof of specific intent - partial defence of diminished responsibility - medical condition of depression - evidence of good character - role in criminal trial - relevance to defence of diminished responsibility - evidence not taken into account - error of law - miscarriage of justice - whether verdict supported by evidence - whether substitution for verdict of manslaughter on ground of diminished responsibility. SPYRIDIS, Nicholas - CCA, Conviction and sentence appeal. Sexual intercourse without consent; indecent assault. Crown withheld evidence of earlier complaint on misunderstanding of the law - what course to be taken - delay in complaint - need for Kilby direction in context of Crimes Act 1900 s.405B - need for balanced direction - 'why would complainant lie?Total gross amount of heroin found at premises was 141 grams with a value of ,000. All charges arose out of a single series of events which involved applicant & his wife who were separated at the time. SLATTERY, Carl Rodney - CCA, 9.12.98Appeal against order refusing permanent stay.Attack upon wife outside her workplace following an argument with her the previous evening, striking the wife repeatedly with the butt of a shotgun with sufficient force to cause part of the wood of the butt to break away. Already serving a sentence at time of sentencing for above offences. Maliciously discharge gun with intent to do GBH; possess shortened firearm; possess unlicensed pistol. Fitness to be tried - special hearing held - found guilty of some offences by jury - subsequent review of forensic patients one year later - now found fit to plead. Appellant convicted of misprision of felony (common law misdemeanour triable on indictment) involving a sexual offence on appellant's daughter.The jury acquitted appellant of counts 4, 6 & 7 & convicted him of count 5 only.Complainant's evidence supported by appellant's admission in record of interview.Both were arrested, the man found to be in possession of 22 foils of powder comprising 61% heroin & 39% glucose (total weight 1.05 grams).Search of respondent's premises revealed powder comprising 60.5% heroin & 39.5% sucrose, some bound with tape, some in plastic bags & some in 15 foils similar to those supplied to the man in the car park. Maliciously inflict GBH (s.34(b) Crimes Act; firing firearm in public place (s.93G(1)(b)); 3 further charges taken into account (possess unlicensed firearm; possess loaded firearm in public place; carry or fire firearm in manner likely to endanger safety of another). MT 11m, AT 2y (his Honour finding special circumstances).Other counts included enter building with intent to commit felony; assaults with intent to rob; assault; armed B&E; sexual assault. - CCA, Conviction appeal.3 x sexual intercourse with child (10 to 16) under authority. Found guilty of 2nd & 3rd counts, acquitted of 1st count. Knowingly take part in manufacture & supply large commercial quantity prohibited drug (methylamphetamine); supply large commercial quantity methylamphetamine. Directions - 4 day adjournment of trial between jury's question & trial judge's answer - whether jury entitled to convict. '- whether leave to argue this ground should be granted pursuant to Rule 4. GILBERT, Gavin John - CCA, Conviction appeal.2 x assault; armed with firearm with intent to commit assault. Cross examination of accused concerning fabrication by witnesses of their testimony - need for direction that evidence admitted to show relationship not to be used to conclude accused's propensity to offend - cross-examination of accused about statement by another person - Evidence Act s.44. KENNEDY, Michael Graham - CCA, 9.12.98Appeal against interlocutory order refusing permanent stay.For counts 9 & 10, appellant sentenced to concurrent MT 8y, AT 4y on each count & cumulative upon sentence of 3y FT for sexual assault; for remaining counts sentenced to between 1y & 3y to be served concurrently with other sentences imposed. Appeal allowed on count 10: resentenced to 2y FT to be served concurrently with other sentences. Leaving of evidence to jury where competing versions of events given - sufficiency of warning under s.165 Evidence Act concerning complainant's evidence & delay in making complaint - verdict unsafe & unsatisfactory - duty of trial counsel to seek directions - admissibility of evidence of complaint. Child sexual assault charges: indecent assault (fellatio); a number of acts of sexual intercourse.




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