Fast reads on the decisions that matter to your practice, updated daily.
Last updated: 23 October 2026
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23 October 2026
[2026] NSWCCA 172
The "double might" test from HCF v The Queen requires an appellate court to first find, on the balance of probabilities, facts extrinsic to jury deliberations establishing an irregularity before asking whether a fair-minded observer might reasonably apprehend the jury did not decide according to law. Jury questions alone, without supporting extrinsic evidence such as a juror's comment or a sheriff's investigation, will not satisfy that thresho…
23 October 2026
[2026] NSWCCA 173
The Court of Criminal Appeal confirmed that double counting is not cured by ordering concurrent sentences, or by accumulating sentences with reference to totality, where the sentencing judge never addressed the factual overlap between counts when determining the aggregate sentence (at [28], [39]). Significant factual overlap between offences is sufficient to ground a double counting error; it is not necessary to show that the criminality of on…
23 October 2026
[2026] NSWCCA 174
In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentence falling on the lenient side of the spectrum does not, without more, establish manifest inadequacy; the sentence must fall outside the broad margin of appreciation afforded to sentencing judges (at [58]-[63]). Where the Crown accepts findings of reduced moral culpability, diminished need for general deterrence, and a compelling subjective case, those unchalle…
23 October 2026
[2026] NSWDC 384
The District Court confirmed that the failure of an attempt to pervert the course of justice is irrelevant to assessing objective seriousness: it is the intent that constitutes the offence, and courts must not discount the gravity of conduct merely because the intended interference with justice did not ultimately succeed (at [16]). Under the Bugmy principles, a history of childhood disadvantage, early entry into custody, and long-term drug dep…
23 October 2026
[2026] NSWDC 383
The District Court confirmed that, even in drug supply matters where general deterrence carries significant weight, the section 5 threshold for full-time imprisonment may not be met where the offending is at the lowest end of objective seriousness and the offender's subjective case is compelling (at [10]). A 25% sentencing discount applied where the offender pleaded guilty at the first opportunity, consistent with the standard provisions under…
21 October 2026
[2026] NSWCCA 170
Statutory mandatory minimum sentences under the Commonwealth child sexual abuse sentencing regime operate as static yardsticks representing the least serious category of case warranting imprisonment. They are not reduced by any percentage discount for a guilty plea or cooperation when used in that yardstick role (at [62]). Under ss 16AAC(2) and (3) of the Crimes Act 1914 (Cth), the discount for a guilty plea or cooperation operates on the sent…
21 October 2026
[2026] NSWDC 382
The District Court confirmed that, under section 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the default position for assaults committed by inmates in correctional centres is consecutive sentences, and displacing that default requires consideration of the usual sentencing factors with extra weight accorded to general deterrence (at [47]-[48]). Bugmy Principles require a finding, on the balance of probabilities, that an offender's c…
16 October 2026
[2026] NSWCCA 167
A hearsay statement that is equivocal, accompanied by a general hearsay warning, not attributed to a named tendency witness, and substantially duplicated by other unchallenged tendency evidence will not ordinarily constitute a material irregularity capable of realistically affecting the jury's verdict (at [46]-[54]). Where trial counsel makes a considered forensic choice to leave objectionable evidence before the jury because it supports the d…
16 October 2026
[2026] NSWCCA 168
Parity between co-offenders requires comparison of all components of each sentence, including the circumstances of both common and unrelated offending; a co-offender's successful appeal can ground a justifiable sense of grievance even where the applicant faces additional charges (at [87]-[88]). A mathematical approach to demonstrating error in the application of the totality principle is misconceived; the principal focus remains whether the ag…
16 October 2026
[2026] NSWCCA 166
The phrase "at such a time" in s 32(2)(b)(ii) of the Evidence Act 1995 (NSW) refers to when the events recorded in the document were fresh in the witness's memory, not when the witness found the document to be accurate. The Court of Criminal Appeal confirmed that both limbs of s 32(2)(b) share the same core freshness requirement (at [40]-[45]). Evidence read aloud by a witness under s 32(3) of the Evidence Act is not hearsay evidence under the…
16 October 2026
[2026] NSWDC 376
The District Court confirmed that, before a firearm's co-location with drugs can aggravate either type of offending, the prosecution must establish a relevant connection between them beyond reasonable doubt. Suspicion, even strong suspicion, does not suffice (at [7]). Under Bugmy v The Queen, childhood trauma that directly contributes to long-term mental health conditions and drug addiction can entitle an offender to full leniency in sentencin…
14 October 2026
[2026] NSWCCA 165
Where a co-offender is sentenced after an applicant, the parity principle can still be engaged: a justifiable sense of grievance may arise from insufficient disparity in the co-offender's later sentence, not only from a harsher sentence imposed on the applicant (at [54]-[55]). The parity principle is free-standing and does not depend on a finding that the original sentence was manifestly excessive; the test is objective, not a matter of the ap…
14 October 2026
[2026] NSWCCA 164
A sentencing judge's failure to address the potential impact of a diagnosed mental condition on the weight to be given to general deterrence can constitute House v The King error, even where no specific submission on that point was made, provided the evidence was sufficiently before the court and its relevance was sufficiently apparent (at [51]-[55]). Under the principles drawn from De La Rosa and Verdins, a mental condition need not materiall…
14 October 2026
[2026] NSWSC 1279
Although there is no precedent for a third party intervening in first instance criminal proceedings, the Supreme Court held that its inherent power is capable of extending to a confined intervention of that type, though the circumstances in which it would be appropriate to exercise that power are extremely rare (at [29]-[30]). A government intervener's application will be scrutinised closely where its interests are wholly aligned with those of…
12 October 2026
[2026] NSWCCA 159
A miscarriage of justice from a refusal to discharge the jury is established where the impugned evidence could realistically have affected the jury's reasoning to a guilty verdict. The Court of Criminal Appeal confirmed this is not an onerous burden and is distinct from the higher "substantial miscarriage of justice" threshold that applies under s 53C of the Jury Act to decisions made after an individual juror has been discharged (at [45], [64…
12 October 2026
[2026] NSWCCA 158
A sentencing judge's error in applying the totality principle need not arise from a misunderstanding of the law: a miscalculation of the practical effect of cumulation on the total effective non-parole period is itself sufficient to establish error on appeal (at [34]). Where sentencing reasons express an intention that a new sentence will have "nil effect" in light of existing sentences, but the orders as pronounced extend the non-parole perio…
12 October 2026
[2026] NSWCCA 163
Inconsistent verdicts will not be established merely because charges arose from closely related events. Where distinct features distinguish the evidence on each count, such as the presence of strong complaint evidence for some counts but not others, a rational jury can properly acquit on some counts while convicting on others (at [67]-[81]). A complainant's willingness to deceive authorities for a specific instrumental purpose, such as a visa …
12 October 2026
[2026] NSWCCA 161
An offence of perverting the course of justice under section 319 of the Crimes Act 1900 (NSW) can be committed by conduct intended to pervert the course of justice in Federal Court proceedings, even where no State legislation is being applied or enforced in those proceedings (at [3]). The "course of justice" in sections 312 and 319 is not confined to proceedings "in and of" New South Wales. Commonwealth and State legislation form a single, com…
12 October 2026
[2026] NSWCCA 155
Section 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which identifies recognition of "harm done to the victim" as a sentencing purpose, refers to harm directly caused by the offence, not to hardship a victim may suffer as a consequence of the offender being imprisoned (at [63], [65]). Long-standing sentencing principle confirms that leniency on account of hardship suffered by an offender's dependants is available only where that …
12 October 2026
[2026] NSWCCA 156
In dismissing the appeal, the Court of Criminal Appeal confirmed that an independent assessment of the whole evidence is required on an unreasonable verdict ground, and that in a circumstantial case the prosecution must do more than establish a pathway to guilt: it must exclude any inference consistent with innocence that was reasonably open on the evidence (at [55]-[58]). Where an accused claims self-defence, post-offence conduct such as flee…
12 October 2026
[2026] NSWCCA 162
The Court of Criminal Appeal confirmed that sexual enthusiasm or willing participation in sexual activity on some occasions within a relationship is not inconsistent with an absence of consent on other specific occasions, and that a jury acts rationally in accepting such a distinction (at [31], [110]). In dismissing the appeal across all eight counts, the Court applied the principle that delay in reporting sexual assault is not uncommon and do…
12 October 2026
[2026] NSWCCA 160
A trial judge's duty to direct the jury on any alternative verdict reasonably open on the evidence applies regardless of whether defence counsel requests that direction; the failure to do so where a viable basis exists constitutes a wrong decision on a question of law under section 6(1) of the Criminal Appeal Act 1912 (NSW) (at [60], [63]). Where the Crown advances an extended joint criminal enterprise case as an alternative to a primary joint…
9 October 2026
[2026] NSWSC 1249
Where the precise scope of a joint criminal enterprise is in dispute at sentencing after a jury verdict, the sentencing judge must resolve that dispute to the criminal standard. Here, the court declined to sentence Tuli and Latham on the prosecution's primary case of a simple joint enterprise to shoot, finding instead that only the extended joint criminal enterprise basis was established beyond reasonable doubt (at [80], [85]). A finding of sp…
8 October 2026
[2026] NSWDC 372
The District Court confirmed that a large volume of Category 1 and 2 child abuse material stored in a secure, hidden application, without evidence of dissemination or profit, falls towards the mid-range of objective seriousness for possession offences of this type (at [43]-[44]). Where an offender's diagnosed mental health conditions (including PTSD, depression, and ADHD) and a history of profound childhood deprivation are causally linked to t…
7 October 2026
[2026] NSWCCA 154
A trial judge in a judge-alone trial commits a material error of procedural fairness by basing a finding of guilt on a factual theory that the Crown expressly disavowed during closing address and never put to the accused in cross-examination (at [93], [99]). The Court of Criminal Appeal confirmed that the principles governing procedural fairness in jury trials, including the principle that an accused must be able to meet the case actually put …
7 October 2026
[2026] NSWCCA 157
A De Simoni error is established only where the sentencing judge actually punishes the offender for conduct constituting a more serious uncharged offence. The Court of Criminal Appeal confirmed that correctly identifying the maximum penalty and imposing a sentence consistent with it are powerful indicators that no such error occurred (at [56]-[59]). Where Agreed Facts are limited to a bare recitation of the elements of an offence, the adequacy…
30 September 2026
[2026] NSWCCA 152
A Crime Scene Officer with tertiary forensic science qualifications and attendance at 20 to 25 road crash scenes was found to possess sufficient specialised knowledge to give opinion evidence about the location of a collision point based on road surface gouge marks, under s 79 of the Evidence Act 1995 (NSW) (at [31]-[35]). Where defence counsel at trial did not challenge an expert witness's qualifications or the sufficiency of the expert's rea…
30 September 2026
[2026] NSWCCA 153
Section 56 of the Crimes (Sentencing Procedure) Act 1999 applies only to "convicted inmates" as defined, and does not extend to persons held on remand at the time of the offence in question. Applying the provision to a remand prisoner constitutes a legal error (at [61]-[63]). Where a sentencing court finds special circumstances warranting individual non-parole periods below 75% of each head sentence, it must attend to the combined structural e…
30 September 2026
[2026] NSWSC 1182
A search warrant that identifies a motor vehicle by registration number, without specifying make, model or colour, can satisfy the requirement for a "full description of that thing" under section 62(1)(d) of LEPRA, because a registration number describes a specific vehicle with considerable particularity (at [56]). Under LEPRA, a motor vehicle nominated as an object of search in a warrant is not thereby converted into "premises" authorised to …
30 September 2026
[2026] NSWDC 359
A company's actual knowledge of a risk, documented in its own safety management system but left unimplemented, is a serious aggravating feature when sentencing for a Category 1 offence under the Work Health and Safety Act 2011. The District Court treated that knowledge as central to its finding of gross negligence and to the overall objective seriousness of the section 31 offence (at [35], [86], [90]). Under section 32 of the Act, an officer's…
