News: Three new appeals headed for the Court

In today’s combined Sydney and Melbourne special leave hearing, the Court granted¬† leave to appeal the following three decisions:

  • Lavin v Toppi [2014] NSWCA 160 concerns the obligations that one loan guarantor owes to another. In this case, a company’s loan was guaranteed by a number of people, including two of the company’s directors. ¬†After the company defaulted and the bank sued the guarantors, one of the directors settled with the bank by paying less than half of the debt in return for being released from any obligation. The NSW Court of Appeal held that the second director, who paid the remaining debt, could nevertheless sue to ensure that the first director contributed equally to the payment.
  • R v CMB [2014] NSWCCA 5 concerns the demise of a NSW program that allowed some child sexual offenders to be diverted from prison into a three-year treatment regime that aims to assist victims and prevent recidivism. The program was abolished in between the defendant being referred to it after pleading guilty to offences against his daughter and his admitting to further offences as part of the program’s entry assessment. Following an appeal by the Attorney-General, the NSW Court of Criminal Appeal held that the sentencing judge should not have given him a three year good behaviour bond for the later offences (in an attempt to mimic the likely outcome if the program had not lapsed) and instead re-sentenced him to a minimum three years in prison (despite the prosecution having supported the original non-custodial sentence.)
  • Zhao v Commissioner of the Australian Federal Police [2014] VSCA 137 concerns the vexed question of whether civil proceedings can go ahead against a defendant who is also facing criminal charges on the same subject. In this case, a husband and wife were subject to a civil proceeds of crime action at the same time the husband was prosecuted for the offence of dealing in the same proceeds of crime (said to be from an illegal brothel.) Despite a provision barring the staying of a civil proceeding because of the ‘fact’ that criminal charges have been laid, the Victorian Court of Appeal entered a stay on the basis that the defendants should not be forced to choose between not defending the civil action or prejudicing the defence in the later criminal prosecution.
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.