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Court of Criminal Appeal 15 October 2025

Comer v R

[2025] NSWCCA 164

DrugsFirearms & weaponsPublic order & justice offences

Citation: Comer v R [2025] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 15 October 2025
Judges: N Adams J (majority); Sweeney J (agreeing); Coleman J (dissenting in part)

Background

The appellant was sentenced in the Campbelltown District Court in May 2019 after pleading guilty to twelve offences, including serious firearm and drug supply charges. Nine further offences were taken into account on Form 1 documents. Three of the twelve offences had been placed before the District Court on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), a procedure that allows the District Court to deal with certain summary or lesser offences alongside indictable matters being sentenced in that court.

Two of those three "certificated" offences were the focus of this appeal: a failure to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (the "fail to report" offence), and a charge of resisting an officer in the execution of duty under s 58 of the Crimes Act 1900 (NSW) (the "resist arrest" offence). The appellant had agreed at the time of committal, and again at sentencing, that both offences were "related offences" properly before the District Court.

Six years later, the appellant sought leave to appeal out of time, contending that the District Court had in fact lacked jurisdiction to deal with those two offences because they did not satisfy the statutory definition of "related offence" in s 165 of the Criminal Procedure Act. He sought to have his convictions on both offences quashed and the matters remitted.

  • Whether the fail to report offence and the resist arrest offence each constituted a "related offence" within the meaning of s 165 of the Criminal Procedure Act 1986 (NSW), such that the District Court had jurisdiction to deal with them under s 166.
  • What the phrase "arises from substantially the same circumstances" means in the definition of "related offence" in s 165, in particular the meaning of "substantially" and "circumstances."
  • Whether leave to appeal out of time should be granted, and whether leave to appeal against conviction should be granted.

Decision

The definition of "related offence." The majority (N Adams J, Sweeney J agreeing) held that "substantially" in s 165 means "in substance" or "essentially," and qualifies the degree of connection required between the circumstances of the related offence and those of the first indictable offence. "Circumstances" refers to factors such as time, place, manner, and other contextual details surrounding the offence; it does not include the legal elements of the offence itself. The definition should be construed broadly to serve the purpose of Part 3, Division 7 of the Act, which is to increase efficiency in the administration of criminal justice. The court acknowledged there will often be no "bright line," and each case turns on its own facts.

The resist arrest offence. All members of the Court agreed that the resist arrest offence was properly before the District Court as a related offence. It arose in close temporal and physical proximity to the firearm offences, and there was a sufficient factual nexus between the two sets of conduct to satisfy the "substantially the same circumstances" requirement.

The fail to report offence: the majority. N Adams J (Sweeney J agreeing) held that the fail to report offence was also a related offence. The failure to comply with reporting obligations was part of the state of affairs that surrounded and affected the police searches that gave rise to the first indictable offence. On this basis, the appeal was dismissed by the majority.

The fail to report offence: the dissent. Coleman J disagreed on this point. The indictable offences were discovered because of a search conducted pursuant to a Firearms Prohibition Order, not because of or in any way connected with the circumstances giving rise to the failure to report. Coleman J was not satisfied that the evidence established any link between service of the order and the failure to report, and declined to infer such a link. On the dissent's approach, the aggregate sentence should have been quashed and the fail to report matter remitted to the Local Court.

Orders Made

The orders proposed by the dissenting judge (Coleman J) are reproduced below as they appear in the text, noting that the majority dismissed the appeal. The majority's operative outcome was to dismiss the appeal:

  • Leave to appeal granted (out of time)
  • Appeal dismissed (majority)

The orders proposed by Coleman J (dissenting) were:

  • Extend the time for filing the Notice of Appeal
  • Grant leave to appeal
  • Allow the appeal
  • Quash the sentence imposed by the District Court on 17 May 2019
  • Remit all matters except the failure to comply with reporting obligations (sequence ending 255/1) to the District Court for sentence
  • Remit the failure to comply with reporting obligations charge (sequence ending 255/1) to the Local Court for sentence

Key Takeaways

  • The NSW Court of Criminal Appeal confirmed that "substantially the same circumstances" in the s 165 definition of "related offence" does not require an identical factual matrix; "substantially" means "in substance" or "essentially," and the comparison is between the surrounding factual circumstances, not the legal elements, of the offences.

  • Determining whether an offence is a "related offence" for the purposes of s 166 jurisdiction involves no bright-line test; the inquiry is fact-specific and requires an assessment of the closeness in time, place, manner, and factual context between the offences in question.

  • Under s 165, "circumstances" encompasses the contextual and factual details accompanying the first indictable offence but excludes its legal elements. This distinction is central to the jurisdictional analysis.

  • A party's prior agreement that an offence is a "related offence" does not itself confer jurisdiction if the statutory definition is not in fact satisfied; jurisdiction under s 166 is a matter of law, not consent.

  • The majority and dissent diverged on whether an offence that forms part of a broader "state of affairs" surrounding police action can constitute a related offence to the indictable charges uncovered during that action. The majority answered yes on the fail to report offence; Coleman J answered no, finding no evidential link between the reporting failure and the search that uncovered the primary offences.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 160, 165, 166, 167, 168
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5AA, 5AD, 6(3), 7, 8, 10(1)(b), 12
- Crimes (Sentencing Procedure) Act 1986 (NSW), s 33
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes Act 1900 (NSW), ss 58, 99(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), (2)
- Firearms Act 1996 (NSW), ss 7(1), 39(1)(a), 62(1)(b), 65(3), 74(3)
- Bail Act 2013 (NSW), s 79(1)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(2)(a)

Cases:
- Director of Public Prosecutions v Sinton (2001) 51 NSWLR 659; [2001] NSWCA 179
- R v MacDonald [2000] NSWCCA 1; 110 A Crim R 238
- Jibran v R [2020] NSWCCA 86
- Fantakis v R [2023] NSWCCA 3
- Kershaw v R [2024] NSWCCA 27
- DJ v R [2017] NSWCCA 319
- Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
- Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404; [1994] HCA 54
- *Alcan (NT) Alumina Pty Ltd v