News: Ten new grants of special leave

Senators’ queries and qualifications aside, the High Court is having a quiet month, perhaps in part because some pending matters have been shifted to February when the Court will again have seven functioning judges. The Court finished off all of this month’s full court hearings in a single week and also announced orders settling or partly settling matters where special leave had been granted (in cases concerning migration, sentencing and advocates’ immunity.) At the same time, there has been a bumper crop of special leave grants this month, two on the papers last week, a spectacular five out of six applications granted in Wednesday’s oral hearing and three at today’s oral hearing.

All up, ten new cases will eventually be heard on appeal:

  • Bennett v Talacko [2016] VSCA 179 addresses whether the Victorian Supreme Court can issue a certificate allowing the enforcement of one of its judgments in a foreign court if the subject of that judgment is currently bankrupt. The case concerns a long-running family dispute over historic properties in Eastern Europe that were expropriated by the Communists and later restored. In 2009, the Supreme Court of Victoria held that one family member reneged on an agreement he struck with his siblings to share the proceeds of the restoration and a later settlement of the resulting litigation, and ordered that he pay equitable compensation of approximately 10 million euros. Seven years later, a majority of Victoria’s Court of Appeal held that the losing sibling’s subsequent (and continuing) bankruptcy did not prevent the issue of a certificate to the winning siblings’ successors allowing them to enforce the 2009 judgment in the Czech courts against the losing siblings’ successors.
  • Commissioner of Taxation v Jayasinghe [2016] FCAFC 79 discusses whether a person who works for, but does not hold an official position with, a United Nations agency is liable to Australian income tax. A majority of the Full Court of the Federal Court upheld the Administrative Appeals Tribunal’s findings that the engineer, who was an independent contractor engaged by the United Nations Office of Project Services as project manager for the building of a road in Sudan, was exempt both as ‘holding’ an ‘office’ under the International Organisations (Privileges and Immunities) Act 1963 (Cth) and as being an ’employee’ of the United Nations under a 1992 determination by the Commissioner on that topic.
  • Dickman v The Queen [2015] VSCA 311 examines the admissibility of low quality photoboard identification evidence. The defendant was convicted on the basis that he was the ‘old man’ who participated in a bashing of the victim by the Hells Angels, based largely on the victim selecting him out of a photoboard two years after the crime (and years after wrongly selecting another person who the police initially suspected.) The Court of Appeal unanimously dismissed the defendant’s arguments that the police’s search of his Adelaide home breached South Australian law and that the police wrongly failed to hold an ID parade under s114 of the uniform evidence law. However, a majority of the Court held that the photoboard ID should have been excluded because its ‘seductive quality’ outweighed its very weak probative value.
  • Dookheea v The Queen [2016] VSCA 67 discusses the adequacy of jury directions in a murder trial. The defendant and his partner attacked a former employer to ‘teach him a lesson’, but the multi-stage fight left the employer dead, apparently caused either by the defendant choking him or later sitting on his back. The Court of Appeal rejected the defendant’s arguments that the judge should have clearly told the jury that they had to be unanimous as to the precise act that killed the employer and had to be sure of the defendant’s intend to cause serious harm during that act. However, the Court of Appeal nevertheless upheld the appeal because the trial judge said that the prosecution ‘has to have satisfied you of this not beyond any doubt, but beyond reasonable doubt’, a breach of the High Court’s ban on directions on the meaning of reasonable doubt.
  • Forrest & Forrest Pty Ltd v Wilson [2016] WASCA 116 concerns the meaning and effect of statutory preconditions for the grant of a mining lease. In 2011, two holders of exploration licences applied for their conversion to mining leases, but their applications did not include a ‘mineralisation report’ (which came four months later) or a ‘mining operations statement’ (which never came.) The warden nevertheless recommended that the leases be granted and the Minister agreed. Western Australia’s Court of Appeal unanimously held that, although the applications failed to meet a statutory requirement that they be ‘accompanied by’ the two documents, that failure did not prevent the warden or Minister from considering the applications and was not a factor that must be considered before the leases could be recommended or granted.
  • Katanas v Transport Accident Commission [2016] VSCA 140 involves the assessment of whether a mental disorder is ‘severe’. The trial judge found that the plaintiff suffered post-traumatic stress disorder after being injured in a car accident, but that, given the range of social, recreational and domestic matters she continued to engage in, her disorder failed to meet the statutory requirement that it was ‘severe’. A majority of the Court of Appeal held that the trial judge erred in holding that severity was to be determined by whether or not a disorder was in the ‘higher echelons’ of a ‘spectrum’ ranging from mild anxiety to illnesses with ‘the most extreme symptoms and consequences’.
  • MA v R [2015] NSWCCA 323 examines the application of the NSW offence of maliciously inflicting grievous bodily harm to a HIV positive person whose partner became HIV positive. Before the defendant’s trial, NSW Court of Criminal Appeal rejected the defendant’s argument that the offence doesn’t apply to virus-transmitting sex because any harm isn’t immediate; the High Court refused leave to appeal that ruling prior to the defendant’s trial. Now that the defendant has been convicted, the Court of Criminal Appeal refused to change its earlier view and also rejected the defendant’s further arguments that the jury’s verdict was unsafe (because of the possibility that the defendant’s partner acquired HIV from someone else) and that the jury should have been required to determine whether the defendant realised that his partner probably (rather than possibly) would have acquired HIV from him.
  • R v IL [2016] NSWCCA 51 concerns the intersection of the criminal law on constructive homicide (where the victim is killed unintentionally in the course of another crime) and joint enterprise (where the defendant can be liable for crimes committed by someone else pursuant to an agreement with the defendant.) The victim died during a fire sparked by a gas burner used to manufacture methamphetamine. The NSW Court of Criminal Appeal overturned a trial judge’s ruling acquitting the defendant of both constructive murder (causing death in the course of manufacturing a commercial quantity of drugs) and manslaughter (by unlawful and dangerous act), holding that it did not matter that the defendant did not foresee the victim’s death or the fire (it was enough that he foresaw lighting the burner), that it did not matter whether lighting the burner was a joint act of the pair (it was enough that the drug manufacturing was joint) and that it did not matter whether or not the defendant foresaw that the victim would probably be harmed (it was enough, under a repealed NSW definition of ‘malicious’ preserved by a transitional provision in the case of murder, that he foresaw that the victim might be harmed.)
  • R v Pickering [2016] QCA 124 involves whether part of a general defence for compelled acts in Queensland’s criminal code  is available for the crime of manslaughter  After the defendant stabbed and killed a childhood friend who ‘charged him’ while yelling threats, a jury acquitted him of murder but convicted him of manslaughter. The Queensland Court of Appeal dismissed his argument that the jury should have been directed on the Code’s defence of reasonably resisting violent threats (rather than just the narrower defence of self-defence), holding that that all aspects of the Code’s compulsion defence was made inapplicable to a stabbing crime by an exception to the general defence for crimes causing grievous bodily harm.
  • SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 considers whether refugee protection should be granted to people who face detention for unlawfully leaving their country. After the Minister rejected a Sri Lankan applicant’s application for protection against government reprisals for his participation in anti-government protests and persecution as a Tamil, the Full Court of the Federal Court unanimously rejected his further claim for protection from his likely detention for some months by Sri Lankan authorities for unlawfully departing. The Court unanimously held that any degrading treatment due to the poor quality of Sri Lankan prisons would not be ‘intentionally inflicted’ by the Sri Lankan government and that people who break Sri Lanka’s laws on emigration are not a particular social group that requires protection against persecution.
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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.

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