News: Relief and reproach in the High Court

The High Court’s return from its winter break includes a slight, but important, change in the Court’s sitting practice. Each of this week’s main sitting days has commenced at 10am, rather than the usual 10.15am. Chief Justice Kiefel explained the purpose of the early start yesterday:

The parties would be aware in accordance with the new trial practice we will be adjourning at 11.15 for 15 minutes.

While no explanation was given for the mid-morning adjournment, its utility is obvious. Perhaps coincidentally, the change follows an impromptu ‘short adjournment’ of six minutes during a June matter, after the defendant’s counsel, called on to address the court 102 minutes into the morning session, sought ‘the indulgence of the Court of a brief comfort break’.

Otherwise, however, yesterday’s Court was not in a generous mood. One of the Wednesday’s four judgments concluded with sharp criticism of two judges of Victoria’s Court of Appeal. In a passage titled ‘Adherence to authority’, five justices unanimously said:

As this Court has emphasised on several occasions, Australian intermediate appellate courts are bound to follow the decisions of other Australian intermediate appellate courts in both matters of statutory interpretation and matters of common law unless persuaded that those decisions are plainly wrong. In this case, as has been explained, the admissibility of the evidence of the cash found at Essendon, as circumstantial evidence of drug trafficking and, therefore, as probative of intent to sell, was supported by a succession of decisions of other Australian intermediate appellate courts including an important previous decision of the Court of Appeal of the Supreme Court of Victoria which has been followed in other States. The majority in the Court of Appeal in this matter did not suggest that those decisions were plainly wrong and could not properly have considered them to be so. Rather, the majority purported to distinguish those previous decisions on the now concededly untenable basis of physical separation of the cash from the cannabis and the patent misconception that the evidence was unfairly prejudicial to the respondent. So to hold was in effect to refuse to follow those earlier decisions while purporting to observe them. That was not a course properly open to the majority and it should not be repeated.

The Court here restates its 2007 view that state intermediate courts ‘should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation [or the common law] unless they are convinced that the interpretation is plainly wrong’. Yesterday’s stance breaks new ground by holding that state courts should follow common law rulings even after the common law has been replaced by uniform legislation (in this instance the Evidence Act 2008.)  The Court’s stance will likely please Victoria’s Director of Public Prosecutions, who repeatedly said it brought the appeal not because of the specific ruling by the lower court, but rather to defend the status of past evidence law rulings favouring drug trafficking prosecutors.

But it may displease others. The Court’s 2007 stance on precedent received academic criticism and its application here to a ‘succession of decisions’ comprising fact-specific evidence law rulings from the 1990s will surely raise more eye-brows. Evidence lawyers may be surprised that the Court now characterises the view that jurors may use evidence of past criminality for a pure tendency purpose as a ‘patent misconception’.  The defendant and his lawyers may be dismayed at how the Court,  in its now typical short-hand way, dismissed his express complaints the the prosecution’s appellate stance was at odds with its trial arguments, while criticising him for raising a complaint about the trial judge’s direction that the majority below had acknowledged but not pursued because they had already in the defendant’s favour. The two Victorian judges, Philip Priest and David Beach, may be frustrated by the Court’s portrayal of their detailed analysis of precedent ([131]-[143]) – much lengthier than the High Court’s own analysis ([34]-[39])- as a ‘refus[al] to follow’ authority, and may also ponder whether Gageler J, had he been assigned to the case, would have joined in the plurality’s reproach, or even their orders.

But perhaps the greatest dismay will be from the non-High Court judiciary of Australia. The High Court’s reproach of Victoria’s Court of Appeals comes shortly after media observations about the burdens of judicial work:

The stresses for those on the bench are myriad, ranging from massive – and growing – caseloads to disturbing subject matter in the lower courts, often involving children. As if that wasn’t enough, there are regular and very public challenges from parts of the media aware that their “soft on crime” attacks are good clickbait. Appeals courts, meanwhile, can use some pretty tough language about judicial colleagues who’ve made errors.

In my view, the present High Court’s emphasis on collegiality ought to extend beyond Australia’s seven most senior judges.

This entry was posted in News, Opinions by Jeremy Gans. Bookmark the permalink.

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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