Appellate Work

Peter has developed a significant appellate practice in criminal law, including criminal matters raising constitutional issues, both in his own right as well as being junior Counsel with prominent silks.

Peter appears frequently in legally aided appeals and is one of a select number of barristers who is on the NSW Legal Aid Specialist Barrister Panel (Criminal Appellate Matters).

Notable appeals in which he has appeared are as follows:

High Court Appeals:

Tajjour, Hawthorne and Forster v State of New South Wales (2014) 313 CLR 221. This was a constitutional case argued before the High Court regarding whether the NSW offence of “consorting” under s 93X of the Crimes Act 1900 was invalid because of the implied freedom of political communication regarding government or political matters. Peter Lowe appeared for Mr Forster, one of the plaintiff’s. The High Court, by majority, held that the offence provision to be a valid law of the NSW. This was so despite the sheer breadth of the provision which had been criticized by the NSW Ombudsman’s report Consorting Issues Paper for being abused by police who issued warnings to stop consorting to children as young as ten years old, Aboriginal people (who were given in excess of one third of all warnings in NSW), as well as homeless people. In dissent, Chief Justice French held that the provision was invalid because of its affect on the implied freedom.

Coleman v Power (2004) 220 CLR 1. This was a constitutional case involving consideration by the High Court of the implied freedom of political communication regarding government or political matters. Mr Coleman had been arrested for handing out pamphlets in Townsville Mall complaining about police corruption. He was arrested, incidentally by one of the same police officers he was complaining about, for the use of insulting words in a public place. Peter Lowe succeeded in arguing on appeal that the offence provision by which the appellant was prosecuted under Vagrants, Gaming and Other Offences Act was invalid and should be struck down. As a consequence Mr Coleman’s conviction for the offence of insulting words was quashed.

R v Hillier (2007) 228 CLR 618. Led by Patrick Tehan QC from the Victorian Bar. In this case the Crown successfully appealed to the High Court against the quashing of a murder conviction by the ACT Court of Appeal. The High Court sent the matter back to the ACT Court of Appeal to rehear the appeal which eventually ended with the grant of a retrial for Mr Hillier. At his retrial he was acquitted.

Ansari v R (2010) 241 CLR 299. Led by Stephen Odgers SC. In this case the High Court considered the issue of whether you can have a conspiracy to commit an offence, the mental element involving recklessness.

Full Court of the Family Court of Australia

Sahadi & Savva and Anor [2016] FamCAFC 65.  In this case the Full Court of the Family Court of Australia considered whether the Commissioner of Police (NSW) was permitted to have access to a family report which was prepared in relation to custody proceedings where access was being sought for use in a pending criminal prosecution.

Court of Criminal Appeal (NSW)

Smith v The Queen (2011) NSWCCA 209. This was an application for leave to appeal against the severity of sentence involving an offence of break and enter with intent to commit a serious indictable offence in circumstances of aggravation. The application was successful and the appeal allowed and the applicant was re-sentenced with the sentence being reduced from a non-parole period of 5 years to one of just 3 years.

Regina v Chishimba, Makasa & Mulenga (2010) NSWCCA 228. This appeal against conviction for aggravated sexual assault without consent related to the issue of ancillary liability involving whether the acts of encouragement were such as to justify a conviction on the basis of aid, abet, counsel or procure. Mr Lowe appeared for the appellant Mulenga whose conviction was quashed and no order made for any retrial.

Chand v Regina (2011) NSWCCA 53. This appeal against conviction for reckless wounding. The Court found that a miscarriage of justice had been occasioned by the admission of evidence at trial which should never have been admitted but applied the proviso to dismiss the appeal.

Kwok v The Queen (2007) 175 A Crim R 278; 64 ACSR 307. The appeal considered the question of the nature of dishonesty for improper use of position of a Director under section 184 of the Corporations Act. Whilst the conviction appeal was eventually dismissed, the associated appeal against the severity of the sentence imposed on Mr Kwok was allowed and his sentence was reduced.

Adam v Regina (2014) 246 A Crim R 232. The appeal considered the question of the appropriate statutory construction of section 52AB of the Crimes Act relating to the failure to stop and render assistance following a motor vehicle accident. The Court held that section 52AB was able to be relied on by the Crown where the evidence supported a charge of negligent driving, in contrast to driving in a dangerous manner, having occurred.

Ansari v The Queen (2007) 70 NSWLR 89; 173 A Crim R 112. This appeal considered the issue of the statutory inter-relationship of the conspiracy and money laundering provisions under the Commonwealth Criminal Code. Whilst that appeal was dismissed, special leave to the High Court from that decision was given and the Full Court of the High Court is scheduled to hear the appeal on 3 December 2009.

Boscolo v The Queen (2000) NSWCCA 356. In that appeal Peter Lowe successfully argued that it was not open for the Crown to secure a conviction for the offence under NSW law of use a false instrument where the false instrument or document the subject of the charge was a caveat lodged over property in WA.

Gilfillan v R (2003) 139 A Crim R 460. During the course of his trial Mr Gilfillan withdrew his instructions and was unable to obtain representation at short notice. The trial was continuing and in its ninth day when an appeal against the decision of the trial judge to proceed with the trial was heard by the appeal court. Peter Lowe successfully argued that the trial should not proceed any further and had to be adjourned as no fault on the part of Mr Gilfillan had been demonstrated.

Ridley v The Queen (2008) 192 A Crim R 139. Mr Ridley had been convicted of significant GST fraud. The appeal considered the question whether Mr Ridley had an honest claim of right to make the claim for payment input tax credits for offences committed shortly after the introduction of the GST system.

Chekeri v R (2001) 122 A Crim R 422. Mr Chekeri had been the beneficiary of a directed verdict in relation to 20 kg of heroin secreted under the house that he had been living in jointly with others and had been granted a permanent stay in respect of another quantity of heroin found in the boot of the car that he had been driving. An appeal was instituted by the Crown against the granting of the permanent stay.

Nikolaidis v R (2008) 191 A Crim R 556. Led by Robert Richter QC from the Victorian bar. Mr Nikolaidis was a solicitor who was convicted of make a false instrument being a costs agreement. The Court considered the elements of that particular offence.

R v Spathis (2001) NSWCCA 476. Led by Anthony Bellanto QC. This appeal considered the validity of a murder conviction in circumstances where the Crown was running a case involving both mens rea murder as well as felony murder. The Court considered the question whether the verdict of the jury was compromised.

JCG v R (2001) 127 A Crim R 493. Led by Anthony Bellanto QC. This appeal considered the issue of DNA and the prosecutor’s fallacy. Whilst the Court held that a miscarriage of justice existed because inadmissible evidence was admitted at trial which would lead the jury to reason impermissibly as to what the DNA evidence actually proved, the appeal was dismissed under the proviso.

Chen, Siregar, Ismunandar & Lau v R (2002) 130 A Crim R 300. Led by Anthony Bellanto QC. This appeal against conviction for the importation of 400 kg of heroin raised the issue whether the trial court had jurisdiction to try the accused. The accused had travelled to Australia on a ship, the MV Uriana, which carried the heroin. The ship was detected by a naval frigate within Australian territorial waters and a hot pursuit followed whereby the ship left territorial waters but was forced to return by the naval frigate whereupon the ship was boarded and the crew arrested. The appeal court held that the matter was justiciable, that notwithstanding that the ship did not return to territorial waters voluntarily that fact did not affect the jurisdiction of the court to try the crew.

Court of Appeal (NSW)

Avilion Group Pty Ltd v Commissioner of Police (2009) 74 NSWLR 514. Led by Anthony Bellanto QC. This appeal considered the issue whether the Appeal Panel of the Administrative Decisions Tribunal acted in breach of the statutory requirement as to the proper constitution of the Appeal Panel. The Appeal Panel had constituted itself by one member rather than as a panel of three members in respect of an interlocutory matter. The Court held that the Appeal Panel fell into error in doing so and set aside the relevant orders made by the panel.

Ghamrawi v GIO General Ltd (2006) 14 ANZ Ins. Cas 61-677. This appeal considered the issue of waiver of privilege with regard to provision of written legal advice under Evidence Act 1995 (NSW).

ACT Court of Appeal

Hillier v The Queen (2008) 163 ACTR 60. Led by Patrick Tehan QC from the Victorian bar and then by Andrew Haesler SC. Fresh evidence on appeal in relation to DNA evidence led at trial. The appeal court granted a retrial. Mr Hillier was subsequently acquitted at his retrial.

Full Court of Federal Court of Australia

Seymour v Migration Agents Registration Authority (2007) FCAFC 76; 45 AAR 370. Led by Tom Hurly of the Victorian bar. Judicial review was sought of an Administrative Appeals Tribunal decision to refuse re-registration as a migration agent. The issue on the appeal was whether the migration agent was a fit and proper person within the meaning of section 290 of the Migration Act.

 

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