R v Diallo (No 6)
[2024] NSWSC 917
…ds, the existence of a ‘cut-throat’ defence will not, of itself, support an order for a separate trial: see, for example, R v Fernando & Anor [1999] NSWCCA 66 (‘ Fernando ’) at [198]-[212]; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 (‘ Rogerson and McNamara’ ) at [61]-[66]. [83] The rationale for the rule w…
R v Hawkins; R v Garland
[2023] NSWSC 1201
Para 82
…ds, the existence of a “cut-throat” defence will not, of itself, support an order for a separate trial: see, for example, R v Fernando & Anor [1999] NSWCCA 66 (“Fernando”) at [198]-[212]; R v Rogerson; R v McNamara (No 3) [2015] NSWSC 965 (“Rogerson and McNamara”) at [61]-[66].…
R v Poudel
[2022] NSWDC 472
Para 71
…far recognising the duty of the investigating police officer on the one hand and the right of a suspect on the other, relying on R v Fernando & Anor [1999] NSWCCA 66 at [32]. Merely because a suspect said that he did not wish to answer any further questions does not render inadmissible answers to further questions…
R v KQE
[2022] ACTSC 69
Para 199
…ent starting point is the decision in R v Assim [1966] 2 QB 249 (quoted with approval by the New South Wales Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [199] ). There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said: As a general rule, it is of course, no more proper to have…
R v Dilosa; R v McHenry
[2021] NSWSC 1470
Para 56
…The point was cited in R v Fernando and Anor [1999] NSWCCA 66, and the desirability of one jury making a fully informed assessment of such defences by both being considered at a joint trial was affirmed. Citing R v Grondkowski (1946) 1 KB 369, the Court of Criminal Appeal observed, at [203] – [205]:…
R v Al Batat (No 2)
[2020] NSWSC 992
…46. The majority and prevailing view has been applied consistently since the decision in Webb v The Queen : see, for example, R v Fernando and Anor [1999] NSWCCA 66.…
R v Loughhead
[2020] ACTSC 78
…R v Fernando [1999] NSWCCA 66 R v Ronen [2004] NSWSC 1289 Symss v R [2003] NSWCCA 77…
R v Yavuz
[2020] ACTSC 117
Para 1
…related, the interests of justice are best served by a joint trial. In R v Assim [1966] 2 QB 249; 2 All ER 881 (quoted with approval in R v Fernando [1999] NSWCCA 66 at [199]), it was stated:…
R v Cunningham; R v Moarefi
[2020] ACTSC 24
…R 163 R v Dellapatrona and Duffield (1993) 31 NSWLR 123 R v Demirok [1976] VR 244 R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90 R v Fernando [1999] NSWCCA 66 R v Henry; R v Gravett; R v Swansson [2008] NSWCCA 248 R v Mack [2009] ACTSC 83; 4 ACTLR 55 R v Middis (Unreported, Supreme Court of New South Wales,…
R v Jabal; R v Jabal; R v Poulakis
[2019] ACTSC 319
Para 199
…ent starting point is the decision in R v Assim [1966] 2 QB 249 (quoted with approval by the New South Wales Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [199]). There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said: As a general rule, it is of course, no more proper to have t…
Lyon (a pseudonym) v The Queen
[2019] VSCA 251
…[7] R v Fernando [1999] NSWCCA 66.…
R v Wood
[2019] NSWDC 778
Para 72
…hotograph the need to consider identification directions such as in Clout v R (1995) 41 NSWLR 312 and Lowe v R (1997) 98 A Crim R 300 and a Fernando ([1999] NSWCCA 66) warning about the potential unreliability of identification of objects. I had those directions in mind when expressing the conclusions that I did ea…
R (Cth) v Lipton
[2019] NSWSC 372
Para 109
…ng jointly tried, and the interests of the applicant in receiving a fair trial: R v Dellapatrona& Duffield (1993) 31 NSWLR 123 at [133]; R v Fernando [1999] NSWCCA 66 at [212].…
R v Featherstone; R v Bloxsome (No 2)
[2019] ACTSC 90
Para 1
…ient staring point is the decision in R v Assim [1966] 2 QB 249 (quoted with approval by the New South Wales Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [199]). There, Sachs LJ delivering the judgment of the Court of Criminal Appeal said:…
R v HG; R v We (No 1)
[2019] NSWSC 573
…[62] In R v Fernando & Anor [1999] NSWCCA 66 the Court (Newman, Studdert and James JJ), having discussed a number of authorities, observed (at [212]) that in determining whether a separate trial should be granted the Court must carry out a balancing process between the community interest and the question of undue p…
R v Woods; R v Cheong
[2018] NSWSC 123
Para 73
…being jointly tried, and the interests of the accused in receiving a fair trial: R v Dellapatrona & Duffield (1993) 31 NSWLR 123 at 133; R v Fernando [1999] NSWCCA 66 at [212].…
R v Afu; R v Caleo (No 8)
[2018] NSWSC 187
Para 36
…the need to strike a balance between the public interest in a jury hearing the trials together and any prejudice to the accused: R v Fernando & Anor [1999] NSWCCA 66 at [212].…
R v Tepania
[2017] NSWDC 435
Para 71
…significant factors to be given consideration in determining an appropriate sentence. The Fernando principles, derived from the judgment of Wood J in R v Fernando (1999) 76 A Crim R 58, provide a framework. Wood J (as his Honour then was) said at [64]:…
R v Bloodsworth; R v Errington (No 1)
[2017] NSWSC 1482
Para 11
…where co-offenders are alleged to be engaged in a joint criminal enterprise, they should be tried jointly: see the authorities cited in R v Fernando [1999] NSWCCA 66 at [199]–[212]. In Webb & Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30, Toohey J, with whom Mason CJ and McHugh J agreed, said at 89 (citations o…
Mansfield v The State of Western Australia
[2017] WASCA 178
Para 9
…333, 339 (Hunt CJ at CL, Finlay & Levine JJ agreeing); Questions of Law Reserved (No 3 of 1997) (1998) 70 SASR 555, 567 (Perry J); R v Fernando [1999] NSWCCA 66 [220] (Newman, Studdert & James JJ); R v Patsalis [1999] NSWSC 649; (1999) 107 A Crim R 432 [15] (Kirby J); R v Swan [2013] QCA 217 [24] (Holmes JA, Appleg…
R v Barakat; R v Younes (No 1)
[2016] NSWSC 1152
Para 48
…Where two or more accused are charged with committing an offence jointly, it is presumed that they should be tried jointly: R v Fernando [1999] NSWCCA 66 at [199]-[212]; Webb and Hay v R (1994) 181 CLR 41. Although the applicant and Barakat are not charged with committing the same offence, the applicant’s liability…
Shozo Maeda v Director of Public Prosecutions (Cth)
[2015] VSCA 367
Para 129
…t 459–60 per Wood CJ at CL; R v Adam (1999) 106 A Crim R 510 at 517–23; R v Esho [2001] NSWCCA 415 at [129]–[130]; and R v Fernando [1999] NSWCCA 66. To the same effect is R v Horton (1998) 45 NSWLR 426, where it was held that the meaning of the term ‘admission’ in relation to New South Wales legislation that requi…
R v Roff
[2015] NSWSC 1853
Para 46
…The majority and prevailing view has been applied consistently since the decision in Webb v The Queen: see, for example, R v Fernando and Anor [1999] NSWCCA 66. Senior Counsel for the applicant acknowledges that in cases where two people alleged to have committed the same crime (either jointly or otherwise) seek to…
R v Basanovic (No. 1)
[2015] NSWSC 1033
Para 16
…This statement by Hunt J was approved in R v Baartman (unreported - Court of Criminal Appeal - 6 October 1994), in R v Fernando [1999] NSWCCA 66 at [416], and in R v Pham [2004] NSWCCA 190 at [48].…
R v Rogerson; R v McNamara (No 3)
[2015] NSWSC 965
Para 62
…In R v Fernando & Anor [1999] NSWCCA 66 the Court (Newman, Studdert and James JJ), having discussed a number of authorities, observed (at [212]) that in determining whether a separate trial should be granted the Court must carry out a balancing process between the community interest and the question of undue prejud…
Australian Institute of Fitness Pty Limited v Australian Institute of Fitness (Vic/Tas) Pty Limited
[2015] NSWSC 635
Para 19
…at common law, it has influenced the approach of New South Wales Courts to the Uniform Acts: see, eg, R v Em [2003] NSWCCA 374; R v Fernando [1999] NSWCCA 66.…
Jasmin Destanovic v The Queen
[2015] VSCA 113
…R v Baartman (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Gleeson CJ, Powell JA and Smart J, 6 October 1994); R v Fernando [1999] NSWCCA 66, [210].…
R v R Abokhalil
[2015] NSWDC 48
Para 67
…mind the observations of the Gummow and Hayne JJ at [109] of that case and also the observations of the Court of Criminal Appeal in R v Fernando [1999] NSWCCA 66 at [30]. There are also observations about the width of meaning of s 90 by Gleeson CJ and Hayne J in EM , particularly in para [56]. This is not a case w…
Amos v R
[2014] NSWCCA 302
Para 1
…point is the presumption that where co-offenders are alleged to be engaged in a joint criminal enterprise, they should be tried jointly: R v Fernando [1999] NSWCCA 66 at [199]-[212] and the authorities there cited.…
Hamado Nabole and v The Queen and
[2014] VSCA 297
Para 129
…NSWLR 442 at 459–60 per Wood CJ at CL; R v Adam (1999) 106 A Crim R 510 at 517–23; R v Esho [2001] NSWCCA 415 at [129]–[130]; and R v Fernando [1999] NSWCCA 66. To the same effect is R v Horton (1998) 45 NSWLR 426, where it was held that the meaning of the term ‘admission’ in relation to New South Wales legislatio…
R v Hiroki
[2014] NSWSC 365
Para 1
…, then a separate trial should be ordered: R v Middis NSWSC, unreported, 27 March 1991; R v Baartman NSWCCA, unreported, 6 October 1994; R v Fernando [1999] NSWCCA 66.…
Regina v JP
[2013] NSWSC 1370
Para 1
…le applies particularly in cases where co-accused place the blame on each other: Webb & Hay , supra; Ignjatic (1993) 68 A Crim R 333 at 339; Fernando [1999] NSWCCA 66 at [203].…
Ngo v R
[2013] NSWCCA 142
Para 12
…or considered and rejected: R v Kalajzich (1997) 94 A Crim R 41; R v Harris [2000] NSWCCA 469; 50 NSWLR 409; R v Rose [1999] NSWCCA 327; R v Fernando [1999] NSWCCA 66. He expressed his conclusion as follows: "32 In my opinion, the killing of a member of Parliament for political purposes, involving as it does an att…
R v Gowans
[2013] NSWDC 284
Para 1
…on Ms Gowans, I have taken into account significantly her background. It fits the sort of background where the principles to be found in R v Fernando [1999] NSWCCA 66 are of direct application. Her decision to take drugs, her decision to commit crimes and the difficulty that she has giving up drugs have to be looke…
R v Amanda Convery aka Crombie
[2013] NSWDC 69
Para 1
…ith the law when she started copying her brother's behaviour and so I have no hesitation in accepting that the principals to be found in R v Fernando [1999] NSWCCA 66 are to be applied, and significantly so in the present case.…
R v Morris
[2013] NSWDC 31
Para 1
…The offender, as an aboriginal man is entitled to have me consider the well known principles in Fernando v The Queen [1999] NSWCCA 66. Often the upbringing of aboriginal children means that they are less able than others to make an informed decision as to whether they will commit crimes or not. Where they are broug…
Ross v The Queen
[2012] NSWCCA 207
Para 1
…would not expect them to be tried separately: R v Demirok [1976] VR 244 at 254; Demirok v R [1977] HCA 21; 137 CLR 20; and see generally R v Fernando [1999] NSWCCA 66 at [199]-[212]. The danger that may exist is by the admission of evidence against one only of the accused. This risk is to be obviated by express and…
R v White (No 1)
[2012] NSWSC 465
Para 1
…ever, a case in which, potentially, one accused will attempt to exculpate himself by blaming another; something akin to the situation in R v Fernando [1999] NSWCCA 66. The critical question is whether the possible attempt by Serone to do so will cause unacceptable prejudice, or positive injustice, in the trial of W…
Ng v R
[2011] NSWCCA 227
Para 1
…liberate murder to cover up another crime and to assist the murderers from being detected: R v Lett (NSWCCA, 27 March 1995, unreported); R v Fernando [1999] NSWCCA 66 at [350]; R v Villa [2005] NSWCCA 4 at [87]. The maximum penalty for the crime of murder is imprisonment for life. His Honour's finding meant that th…
R v Iskandar
[2011] NSWSC 1192
…buko Henry Ugo v R [2011] NSWCCA 135 R v Baartman (unreported - Court of Criminal Appeal - 6 October 1994) R v Darwiche [2011] NSWCCA 62 R v Fernando [1999] NSWCCA 66 R v Mahmoud Chami [2002] NSWCCA 136 R v Middis (unreported - Hunt J - 27 March 1991) R v Pham [2004] NSWCCA 190 R v Symss [2003] NSWCCA 77 Regina v P…
R v McParland; R v Wingate (No 3)
[2011] NSWDC 266
Para 1
…The authorities on this question emphasise - for example in R v Fernando [1999] NSWCCA 66 at [30] - that the courts need to "be vigilant to ensure that evidence is not permitted to be introduced at an unacceptable price". And in R v Em [2003] NSWCCA 374 at [104] the Court said that the "purpose of the discretion is…
Director General, NSW Department of Industry & Investment v Mato Investments Pty Ltd (No 2)
[2010] NSWLEC 196
…ector General, NSW Department of Industry & Investment v Mato Investments Pty Ltd & Ors [2010] NSWLEC 56 Dietrich v R (1992) 177 CLR 292 R v Fernando [1999] NSWCCA 66 Philopos v R [2008] NSWCCA 66 DATES OF HEARING: 1 October 2010 EX TEMPORE JUDGMENT DATE: 1 October 2010 LEGAL REPRESENTATIVES: PROSECUTOR: Mr T Howar…
R v Hamieh
[2010] NSWCCA 189
…s been reserved for the ‘worst type of case falling within the relevant prohibition’: Regina v Tait and Bartley (1979) 46 FLR 386, R v Fernando [1999] NSWCCA 66 at para 227 and Ibbs v The Queen (1987) 163 CLR 447, although the adoption of that phrase is not an occasion for the imposition of a lesser sentence if it…
R v Lipton, Richard
[2010] NSWDC 187
…Wales v Ghidgey [2008] NSWCCA 65 Commissioner for Railways v Small (1938( 38 SR (NSW) 563 Carroll v Attorney-General (1993) 70 ACrimR 162 R v Saleam [1999] NSWCCA 66 PARTIES: Regina Commissioner of Police (NSW) Lipton, Richard FILE NUMBER(S): 2009/78658 COUNSEL: Mr P A Regattieri for Commissioner of Police (NSW) M…
Director General, NSW Department of Industry and Investment v Mato Investments Pty Ltd
[2010] NSWLEC 56
…ssment Act 1979 s 125(1) Fisheries Management Act 1994 s 220ZD(1) CASES CITED: R v Annakin (1989) 17 NSWLR 202 R v Demirok [1976] VR 244 R v Fernando [1999] NSWCCA 66 R v Jones (No 1) [2007] NSWSC 769 R v Middis (NSWSC, Hunt J, 27 March 1991, unreported) DATES OF HEARING: 24 March 2010 EX TEMPORE JUDGMENT DATE: 24…
Habib v Nationwide News Pty Ltd
[2010] NSWCA 34
…South Wales Court of Criminal Appeal, 17 September 1998) R v Esposito (1998) 45 NSWLR 442 R v Fernando [1999] NSWCCA 66 R v Fulling [1987] QB 426 R v GH [2000] FCA 1618; (2000) 105 FCR 419 R v Heffernan; R v Peters (NSW Court of Criminal Appeal, Smart, Bruce James and Sperling JJ, 16 June 1998, unreported, BC98025…
R v Bertrand
[2008] VSCA 182
Para 1
…m R 27 at 43-4 per Wood CJ at CL; R v Adam (1999) 106 A Crim R 510 at 517-523; R v Escho, R v Sako [2001] NSWCCA 415 at [129]-[130]; and R v Fernando [1999] NSWCCA 66. To the same effect is R v Horton (1998) 104 A Crim R 306, where it was held that the meaning of the term ‘admission’ in relation to New South Wales…
R v Steven Ford, Joshua Jackson, Ryan Harrington and James Thorn
[2008] ACTSC 66
Para 1
…e one or other of them. That is not a reason for ordering separate trials. The reasons for ordering separate trials are, as was cited in R v Fernando [1999] NSWCCA 66 at [210] and, I might say, also cited by Connolly J in the case of R v McBride [2007] ACTSC 8 and in that case set out at [8] of his Honour’s judgmen…
MIH v Regina
[2007] NSWCCA 199
…542 R v Sophear Em [2003] NSW CCA 374 R v Swaffield (1998) 192 CLR 159 Regina v Fernando [1999] NSWCCA 66 PARTIES: MIH - Applicant Regina - Respondent FILE NUMBER(S): CCA 2006/2379 COUNSEL: Appellant in person N Noman - Crown SOLICITORS: Appellant in person Director of Public Prosecutions - Crown LOWER COURT JURIS…
R v Abdul Reda Al-Shawany
[2007] NSWDC 141
…liver (1980) 7 A Crim R 174 Gilson v The Queen (1991) 172 CLR 353 R v H (1980) 3 A Crim R 53 Regina v Tait and Bartley (1979) 46 FLR 386 R v Fernando [1999] NSWCCA 66 Ibbs v The Queen (1987) 163 CLR 447 Veen v The Queen [No 2] (1988) 164 CLR 465 De Simoni (1981) 147 CLR 383 R v Slack 2004 NSWCCA 128 R v MAK [2005]…