News: David Eastman conviction quashed

The Supreme Court of the Australian Capital Territory today quashed David Eastman’s conviction for the 1989 murder of the Commissioner of the Australian Federal Police, Colin Winchester. This result followed a wide-ranging report into the safety of his conviction by former Northern Territory Chief Justice Brian Martin that concluded that his conviction was unsafe for a combination of reasons, the primary one being a finding of flawed science and bias by a ballistics expert. The Supreme Court agreed with Martin’s conclusion, but not his further view that any retrial would be impossible. Today’s decision is a lengthy and complex one raising difficult questions about judicial inquiries into the safety of finalised convictions, including matters such as whether the court is limited to inquiring into doubts about guilt (as opposed to the fairness of the trial), whether the court can have regard to material that is kept confidential from the parties, whether an otherwise strong circumstantial case becomes unsafe because of doubts about forensic evidence and whether retrial should be ordered so long after the original 1995 trial.

It may be that questions about these issues will be appealed to the High Court. If so, it will be the latest of many High Court rulings on Eastman’s prosecution, including Continue reading

News: New Zealand Supreme Court follows High Court on political charities

A charity or a trust with a ‘political purpose’ has traditionally been held not to have charitable status (sometimes called the Bowman principle). In Bowman v Secular Society [1917] AC 406, Lord Parker said at 442:

a trust for the attainment of political objects has always been held invalid, not because it is illegal, for every one is at liberty to advocate or promote by any lawful means a change in the law, but because the Court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift.

This has been subsequently upheld in English case law in cases such as McGovern v Attorney-General [1982] Ch 321 and Hanchett-Stamford v Attorney-General [2009] Ch 173. The latter case held that while a new Charities Act had been enacted in 2006, this did not change the fundamental principle that charities with political purposes were not charitable.

By contrast, in 2010, a majority of the High Court of Australia declined to follow the English case law in Aid/Watch Incorporated v Commissioner for Taxation [2010] HCA 42. At [45]–[46], French CJ, Gummow, Hayne, Crennan and Bell JJ noted that agitation of political and public debate could be a societal good, and that the court did not have to decide on whether the political purposes furthered by the charity were legitimate.

Now, in In re Greenpeace [2014] NZSC 105, a majority of the New Zealand Supreme Court has decided to follow the High Court’s lead. Following the decision of the New Zealand Court of Appeal in Molloy v Commissioner of Inland Revenue [1981] 1 NZLR 688, the Charities Commission in New Zealand had refused to register Greenpeace as a charity on the basis that two of its purposes were political, namely the promotion of disarmament and peace and the agitation of change to government policy and legislation. The Australian approach was an important influence on the Supreme Court’s decision to overturn the political purpose exemption (see [66]–[71] of In re Greenpeace). As with the High Court decision, the New Zealand Supreme Court was not unanimous and there were two dissenting judges. As the majority noted, there is still a possibility that Greenpeace will not qualify as a charity in light of arguments that it furthers illegal purposes by endorsing trespass and other such activities when advocating “non-violent direct action.” Now the question of Greenpeace’s status as a charitable entity has been remitted back to the Charities Commission for reconsideration in light of the New Zealand Supreme Court decision.

News: Tasmanian anti-environment protest laws back before Parliament

Tasmania’s upper house of Parliament will soon debate proposed laws that create new offences for conducting protests in a manner that disrupt business activities, including conducting protests on business premises or that impede access to the location for business activities.

The Workplaces (Protection from Protestors) Bill 2014 passed the Tasmanian lower house in late June 2014. On 19 August 2014 it was read for the first time in the Tasmanian Legislative Council. The Bill continues to generate protest and opposition from within parliament and beyond. The proposed bill creates new definitions of protest and business that, should the bill pass, will be much analysed by judges. However, as Melbourne Law School’s Professor Adrienne Stone has noted, the law may ultimately be subject to a constitutional challenge on the ground that it is inconsistent with the implied constitutional freedom of political communication. The limitation on protestors might be unreasonable or disproportionate to the desired purpose of the law – to protect businesses from disruption. Should a challenge to the law be brought before the High Court, it will add to the opportunities presented to the court last year in the cases of Monis and Corneloup and already this year in the Unions NSW case to develop jurisprudence on the implied freedom.


The DNA, the Handshake and the Didgeridoo: Fitzgerald v The Queen

By Professor Jeremy Gans

Fitzgerald v The Queen Case Page

On 19 June 2011 at around 6 am, a group of men carrying makeshift weapons poured from two cars into an Adelaide suburban home. The resulting horror left 23 year-old Kym Drover dead and 25 year-old Daniel Fitzgerald serving a minimum twenty year term for his murder. Just two pieces of evidence linked the two: a handshake the previous evening (between Fitzgerald and the only other person convicted of the attack on Drover) and a didgeridoo found the next morning next to Drover (containing Fitzgerald’s DNA).

Two months ago, on the crime’s third anniversary, the High Court unanimously, correctly and — after his counsel noted his otherwise clean record — summarily freed and acquitted Fitzgerald, exemplifying the national court’s role as a last ditch avenue of appeal for the wrongly convicted. But the case should never have got that far. Fitzgerald should never have been charged. He should never have been found guilty. He should have easily won his appeal in South Australia. The High Court’s slight reasons in Fitzgerald v The Queen [2014] HCA 28 do too little to address the risks arising from the criminal justice system’s overuse of DNA evidence. Continue reading

News: New Court matters include case about tragic radio hoax

This week, the High Court decided three criminal law cases, declined to proceed with a fourth following a full hearing, awarded additional costs to the victor in an earlier matter and held two case management hearings: one, in the ongoing litigation about the Commonwealth’s powers to detain asylum seekers en route to Australia and another in a constitutional challenge to a NSW law revoking mining licences following a corruption inquiry.

As well, today, the High Court  granted special leave to appeal in three commercial investment matters and a regulatory dispute involving a very high profile tragedy. Continue reading

Pollentine v Attorney-General (Qld)

The High Court has decided a special case and upheld the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld), which relates to continued detention of child sex offenders after the expiry of sentence, ‘at her Majesty’s pleasure’, on the grounds that the ‘offender is incapable of exercising proper control over the offender’s sexual instincts’. Continue reading

News: Big trouble for crime boss scenario evidence

Seven years ago, a majority of the High Court in Tofilau v R [2007] HCA 39 upheld four Victorian convictions founded on an unusual criminal investigative method. The method (known in Australia as ‘scenario’ evidence) is for undercover police officers to recruit suspected criminals into fake criminal gangs and then trick them into confessing real crimes by telling them that such confessions are a requirement for membership. After further prompts (such as staged inquiries from real police and promised aid from ‘corrupt’ police), the scenario culminates in a detailed, videotaped interview with the gang’s ‘boss’, after which the sting is revealed to the stunned suspect. This astonishing method (whose details can only be published thanks to a 2005 High Court ruling rejecting a publication ban) was developed in Canada, and the High Court in 2007 relied heavily on its repeated endorsement by the Canadian Supreme Court in upholding its use here.

However, last week, Canada’s top court unanimously changed its mind Continue reading