Opinions on High extends our condolences to those affected by this morning’s events in Sydney, especially the bereaved. In the aftermath of this tragedy, there will undoubtedly be close scrutiny of Man Haron Monis, the man said to be the assailant in the Lindt Cafe. As part of its initial analysis, today’s Sydney Morning Herald notes Monis’s recent litigation before the High Court of Australia:
It has been Monis’ ongoing legal battle over his conviction for penning the poisonous letters to the families of dead Australian soldiers between 2007 and 2009 that has consumed him. It is understood Monday’s siege followed an unsuccessful, last-ditch attempt in the High Court on Friday, December 12, to have the conviction overturned.
This post outlines the various hearings the High Court has held relating to Monis’s argument that the federal crime he was charged with – using a postal service to cause offence – is invalid under the Constitution’s implied freedom of political communication.
In March 2011, the High Court refused an application by Monis and his co-accused to have his constitutional challenge ‘removed’ from the NSW courts to the national Court. French CJ, Gummow and Crennan JJ held that such a removal would interrupt the lower courts’ consideration of the issue and that it would be better for the Court to see the lower courts’ reasons before it ruled on Monis’s case. (See this post for a discussion of removals to the High Court.) After the NSW courts dismissed Monis’s constitutional challenge, the High Court granted him special leave to appeal that ruling. The High Court published its judgment in Monis v R  HCA 4 in February 2013. In a rare result, the six-judge bench was evenly divided on the question of whether or not the federal offence was constitutional, which meant that the NSW ruling against Monis was affirmed. (See this post by Professor Adrienne Stone on the High Court’s reasons and this post on the Court’s divided ruling.)
According to media reports, Monis and his co-accused have since pled guilty to the federal offence, with Monis being sentenced to community service and a good behaviour bond. However, the constitutional challenge was maintained and their application to again have the case removed to the High Court was heard last Friday. (See this post on the Court’s other decisions last Friday.) The transcript of Monis’s final application before the High Court in Sydney is here. Based on that transcript, it appears that the Commonwealth DPP argued that Monis could not challenge the constitutionality of the federal offence provision a second time. Monis’s counsel’s response was that the legal doctrines that bar people from re-arguing legal points do not apply to Monis for several reasons, including the fact that he was a criminal defendant, the constitutional nature of his challenge and the split nature of the High Court’s earlier ruling. The latter arguments drew some support from comments by some High Court judges on an earlier occasion in 1999 when the High Court ruled on a constitutional challenge that had previously been the subject of an evenly divided ruling. (See this post on why the Court sometimes has six-judge benches.) After a twenty minute hearing, French CJ and Gageler J dismissed Monis’s application with this statement:
In our opinion it suffices to say that, having regard to the history of the matter, we do not think it appropriate to make an order for removal in this case. We do not think it desirable to make any further comments on any preclusionary principles in relation to this case or generally in relation to constitutional cases. The application for removal will be dismissed.
Monis’s death means the end of his constitutional challenge but not necessarily that of his co-accused.