Yesterday, in Isbester v Knox City Council  HCA 20, the High Court unanimously quashed a 2013 decision by a local council ordering that the plaintiff’s dog, Izzy, ‘be destroyed’, observing that the decision:
affects the owner of the dog. Whether one describes an interest in a dog as a property right, or acknowledges the importance of a domestic pet to many people, the appellant is a person who may be affected by a decision which will require her interests to be subordinated to the public interest.
The Court held that, because the panel the Council formed to decide Izzy’s fate included a council employee who had prosecuted the plaintiff for the offence of owning Izzy when the dog bit a person’s finger (a ‘serious injury’ under Victoria’s Domestic Animals Act 1994), her involvement in the later decision about Izzy’s destruction created a risk of apprehended bias. Izzy’s fate now depends on a fresh decision by the council, made without any involvement by the earlier decision-makers or the prosecutor.
The case is an unusual illustration of how a final court of appeal like the High Court can sometimes be required to make decisions about life and death. In a speech published in 2003 (the Court’s centenary), then High Court justice Michael Kirby reflected on the Court’s former role in a more common life-and-death decision for courts. His paper describes sixteen decisions the Court made in capital appeals, including five made in the defendant’s favour:
- Tuckiar v R  HCA 49; (1934) 52 CLR 335
- Davies v R  HCA 27; (1937) 57 CLR 170
- Stapleton v R  HCA 56; (1952) 86 CLR 358
- Thomas v R  HCA 2; (1960) 102 CLR 584
- Mizzi v R  HCA 77; (1960) 105 CLR 659
However, as Kirby notes, scanty records of executions and some High Court decisions make it difficult to identify all such rulings. For example, in my research, I’ve come across a further capital reprieve granted by the High Court in Shaw v R  HCA 18; (1952) 85 CLR 365.
Of the dozen or so cases where the Court found against a capital defendant, the first and last are especially noteworthy. The Court’s first capital appeal decision, Ross v R  HCA 4; (1922) 30 CLR 246, upheld a murder conviction in the notorious ‘Gun Alley’ case involving the rape and killing of a 12 year-old in Melbourne’s CBD. Seventy-eight years after Ross was hung, the High Court approved the view of Isaacs J in dissent that such convictions are flawed unless the jury is directed on the alternative (non-capital) offence of manslaughter. More dramatically, another seven years later, Ross was posthumously pardoned on the recommendation of Victoria’s Supreme Court, following a re-examination of forensic evidence linking him to the murder. The Court’s final capital decision was to refuse special leave from R v Ryan and Walker  VR 553, where Victoria’s Court of Appeal dismissed Ronald Ryan’s appeal against his conviction for constructive murder of a warden shot as he escaped from Pentridge Prison. Ryan’s hanging remains the last instance of the death penalty on Australian soil.
Isbester is a puzzling case – one wonders how four experienced Supreme Court justices got it so plainly wrong at first instance and appeal that their decisions were overturned by a unanimous High Court. It was not a complex case, nor a complex principle to be applied – and frankly, even if the council had been on the right side of it, it’s puzzling that they chose to defend the matter rather than take the simpler step of just reconstituting the panel, re-making the decision and being done with it. A lot of puzzling decisions being made, really.
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