News: Another NSW-Vic schism amongst special leave grants

It is always hard to predict the outcome of special leave applications, but one category of appeal comes close to a certainty: cases where Australian courts have divided on the meaning of a single, important statute. Earlier this year, the High Court (in a divided decision of its own) entered into a key dispute between the NSW and Victorian courts about the meaning of Australia’s ‘uniform’ evidence law, and last month the Court took on a case dealing with a second dispute between those courts about that law. Last week, the Victorian Court of Appeal decided not to follow the NSW Court of Criminal Appeal on the precise role of guilty pleas in federal sentencing, guaranteeing that the issue will reach the High Court soon. This month, the sole grant of leave ‘on the papers‘ was a pair of cases where the NSW and Victorian courts reached different views on the fault element of federal drug offences.

The Court’s new process continues to be unpredictable. For the first time since the process began, the Court held two oral hearings – these were held, unusually, in separate weeks, and yielded five more special leave grants. The Court’s written dispositions refusing leave continue to be very uninformative. One exception was the Court’s refusal of a NSW criminal appeal, which included the Court’s view that the NSW Court of Criminal Appeal was right to apply the High Court’s House ruling (requiring an error of law before a decision can be reviewed) to a trial judge decision; alas, the NSW case is (for now) suppressed, so the public is none the wiser about the nature of this ruling. Chief Justice French continues to play no role in the Court’s written dispositions, but participated in (at least) the first oral hearing.

The six matters where leave was granted are appeals from the following decisions:

  • Afford v The Queen; DPP (Cth) v Afford [2016] VSCA 56 and Smith, Maltimore v R [2016] NSWCCA 93 are a pair of decisions about what must be proven to convict a person of a contemporary federal drug trafficking offence when they deny knowledge of drugs discovered in their luggage. Afford, who flew into Melbourne Airport with heroin hidden in oil and a laptop he’d been given as part of an apparent scam, was cleared by a majority of Victoria’s Court of Appeal because it was clear that he didn’t want to import any drugs, while the NSW Court of Criminal Appeal unanimously upheld the conviction of Smith, who flew into Sydney Airport with methamphetamine hidden inside soap and golf sets he’d been given, on the basis that his intent could be inferred from his admission that he had ‘significant misgivings’ about those gifts. The NSW Court held that the Victorian Court wrongly distinguished a 1987 High Court holding that intent to import can be inferred from awareness of the risk that luggage contains drugs.
  • Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd [2016] FCAFC 42 involves the application of Australian restrictive trade practices law to airlines transporting cargo to Australia. A majority of the full court of the Federal Court held that the market for transporting goods to Australia is a market ‘in Australia’ as required by statute, holding that the trial judge had wrongly ignored the Australian location of the importing customers. The full court also unanimously rejected the respondent’s lengthy notice of contention – described by the majority as a ‘scorched earth policy’ – that challenged the trial judge’s findings that the respondents had engaged in price-fixing.
  • Bondelmonte & Bondelmonte [2016] FamCAFC 48 concerns whether teenagers removed by their father from Australia in breach of Family Court orders must return despite their unwillingness to live with their mother in Australia.  A majority of the full court of the Family Court upheld a trial judge’s order that the teenagers must return, including provision for them to live with friends’ families if their father did not return with them and they continued to refuse to live with their mother. The dissenting judge would have required the trial judge to make further findings, including whether living in Australia with neither their mother nor their father would be in the teenagers’ best interests.
  • Gee Dee Nominees Pty Ltd v Ecosse Property Holdings Pty Ltd [2016] VSCA 23 concerns the interpretation of a 99-year lease for farmland containing clumsy amendments to an old form contract. A majority of Victoria’s Court of Appeal held that a clause that required the tenant to ‘pay all rates taxes assessments and outgoings whatsoever excepting land tax which during the said term shall be payable by the Landlord or tenant in respect of the said premises’ left the landlord liable for payments (including land tax) levied on the landlord. In dissent, Kyrou J held that another clause stating the parties’ intention that the tenant purchase the land by paying the entire 99-year rent in advance made the majority’s interpretation untenable.
  • R v Van Ryn [2016] NSWCCA 1 examines the sentencing of paedophiles, a controversial topic last considered in detail by the High Court fifteen years ago. The 60 year-old defendant pled guilty to a series of assaults on children who visited his home between 2004 and 2014, which expert witnesses attributed to a paraphillic disorder that was now being managed with anti-libidinal medication with the defendant’s full cooperation and the support of his family. The NSW Court of Criminal Appeal quashed the sentence given to him at trial, on the ground that the sentencing remarks did not provide a reasoned account of that sentence, including making no finding about the objective seriousness of the offending and the importance of deterrence in any sentence, and that a sentence of thirteen years (and seven non-parole) was manifestly inadequate. In place, the Court imposed a sentence of eighteen years (and thirteen non-parole), finding that many of the offences were particularly serious and that there were no circumstances requiring a lower than usual non-parole period.
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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.

2 thoughts on “News: Another NSW-Vic schism amongst special leave grants

  1. The transcript for R v Van Ryn reveals that the grant of special leave is limited to a very narrow issue: an apparent error by the NSW Court of Criminal Appeal in relation to one of the charges the defendant pled guilty to, and the effect of that on the overall sentence, a matter may well be resolved between the parties without a further hearing. The High Court refused special leave on what seemed to be a broader challenge to the NSW Court’s approach to sentencing paedophiles.

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