Issue 15: December 2006
Book Review

main_12BookRevCrimLaw.jpgCriminal Law and Procedure in New South Wales (Second Edition)
Authors: Robert Hayes and Michael Eburn
Lexis-Nexis Butterworths 2006

T he emergence of a national legal profession brings with it an increased likelihood that practitioners will be briefed in matters to be heard interstate. I was reminded of this recently when I received a call from a colleague in Sydney who, whilst vastly experienced in criminal law, had not previously appeared in Queensland. Briefed to appear in a trial and anxious to learn the local ways, he complained that none of the texts he had consulted was particularly helpful in providing him with an overview of the substantive law, evidentiary provisions and procedural issues which might be relevant.

Had the roles been reversed, I would not have encountered the same sort of difficulties. This book, which is intended “to provide a one-semester course text”, is, as the Honourable Greg James QC declares in the foreword, “much more valuable than that”. It provides a comprehensive overview of the jurisprudence of the New South Wales Criminal Courts.

I suspect most Queensland barristers, briefed to appear in New South Wales, would find that part of the text concerned with criminal procedure and evidence particularly useful. The authors lead a guided tour through the hearing of a criminal matter, from the first return date via committal hearings, pre-trial disclosure, arraignment and, ultimately, trial.

There is a particularly useful segment devoted to sentencing which addresses not only the principles but also the statutory framework and various kinds of non custodial and custodial options which are available.

To state the obvious, much that is written about the substantive law will be of limited assistance to the Queensland practitioner who is not going to appear in New South Wales. However, as one might expect of a work intended as a textbook, it contains some material which may well have application in other contexts. For example, the competent treatment of subjects such as insanity,
voluntariness, automatism and intoxication will be useful even when considering the analogous provisions in the Criminal Code.

The final part of the book is devoted to “aspects of evidence” and considers the interpretation and application of relevant provisions in the Evidence Act 1995 (New South Wales). These are provisions which have their counterparts in the Evidence Act 1995 (Cth) and other statutes. As such, they can arise for consideration in any Court in any State or Territory.

It is no criticism to observe that it is difficult for any bound text such as this to maintain contemporary relevance. The foreword to this book was written on 15 December 2005. On that same date, the High Court delivered judgment in Weiss -v- The Queen [2005] HCA 81. It follows that what would otherwise have been a helpful analysis of the application of the “proviso” is largely redundant.

It is impossible to guard against such changes, but there was a hint of prescience in the authors’ observations on the rule against double jeopardy. They observed that “the doctrine has come under criticism following the High Court’s decision in R. -v- Carroll but, at this stage, remains part of the law” (emphasis added).

No doubt, by 15 December next year, many other aspects of the book will be similarly dated. In the meantime, whether heading to the Tweed Heads Magistrates Court or somewhere closer to Phillip Street, prior consultation of this text would be worthwhile.

Peter Callaghan SC