Category Archives: Criminal Procedure

McKinney v R [1991] HCA 6 | 22 March 1991

ON THIS DAY IN 1991, the High Court of Australia delivered McKinney v R [1991] HCA 6; (1991) 171 CLR 468 (22 March 1991).

A trial judge must warn a jury of the dangers of convicting the accused on the basis of their alleged admissions whilst in custody.

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Section 10 of Crimes (Sentencing Procedure) Act 1999 (NSW) | 12 March 1929

ON THIS DAY IN 1929, section 10 of the NSW Crimes (Sentencing Procedure) Act 1999 (formerly known as section 556A of the Crimes Act 1900) was added to the Crimes Act 1900 through the passage of the Crimes (Amendment) Act 1929 No 2.

As at 12 March 2015, s10 provides:

Dismissal of charges and conditional discharge of offender
10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:
(a) an order directing that the relevant charge be dismissed,
(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,
(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.
(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:
(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or
(b) that it is expedient to release the person on a good behaviour bond.
(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.
(2B) Subsection (1) (c) is subject to Part 8C.
(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:
(a) the person’s character, antecedents, age, health and mental condition,
(b) the trivial nature of the offence,
(c) the extenuating circumstances in which the offence was committed,
(d) any other matter that the court thinks proper to consider.
(4) An order under this section has the same effect as a conviction:
(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and
(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996 , and
(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.
(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.


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Longman v R [1989] HCA 60 | 6 December 1999

ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).

Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.

The High Court held that what the jury was told was not sufficient.

Per Brennan, Dawson and Toohey JJ at [30]:

“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”

The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.


Sydney, Australia

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Crampton v R [2000] HCA 60 | 23 November 2000

ON 23 NOVEMBER 2000, the High Court of Australia delivered Crampton v R [2000] HCA 60; 206 CLR 161; 176 ALR 369; 75 ALJR 133 (23 November 2000).


Sydney, Australia

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Guildford Four released | 19 October 1989

ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.


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Practitioner’s Guide to Criminal Law

The NSW Young Lawyers’ Practitioner’s Guide to Criminal Law is an invaluable resource for users of the criminal justice system in NSW. Visit


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Jago v District Court of NSW | 12 October 1989

ON 12 OCTOBER 1989, the High Court of Australia delivered Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (12 October 1989).

Superior Courts “possess an inherent power to prevent their processes being used in a manner which gives rise to injustice”.

The inherent jurisdiction of the Superior Courts empowers them to order a permanent stay of proceedings to prevent an abuse of process. The power is to be exercised with fairness as the “touchstone”: per Mason at 31.

A permanent stay of proceedings will only be ordered in an “extreme case”: Per Mason CJ at 34.

Per Mason CJ at 33-34:

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial…At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’…”

It is fundamental to the legal system that an accused be given a fair trial according to the law. The accused has “a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.”: per Deane at 56-57.

The five main considerations in determining whether or not proceedings should be stayed on the grounds of unfair delay are, per Deane J at 60:

  •  “the length of the delay”
  • “reasons given by the prosecution to explain or justify the delay”
  • “the accused’s responsibility for and past attitude to the delay”
  • “proven or likely prejudice to the accused”
  • “the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.”

Legal Helpdesk

Peter O’Grady, Lawyer
BA, LLB, Grad Cert Leg Prac, Acc Spec
Principal Solicitor, Legal Helpdesk