Material Evidence Not Presented at Sentence

Published by Geoff Harrison | 8 January 2025

Failure to present material evidence at sentence regarding known issues impacting an offender's moral culpability or subjective case can result in a miscarriage of justice, as the sentencing judge is deprived of fully considering the applicant's circumstances: Shaw v R.

Generally, an appellant is bound by the conduct of his/her counsel. However, the Court of Criminal Appeal does have the discretion to receive new evidence where it is necessary to do so to avoid a miscarriage of justice.

Cases:

• Shaw v R [2024] NSWCCA 241

• Shortland v R [2024] NSWCCA 174

• Betts v The Queen [2016] HCA 25 ("Fresh Evidence" and "Miscarriage of Justice")

• McInnes v R [2024] NSWCCA 104 (New Evidence and Health Concerns)

• John Wayne TSIAKAS v R [2015] NSWCCA 187

• Khoury v R [2011] NSWCCA 118