In hearings yesterday in Brisbane and Sydney, the High Court granted special leave in five new matters, including two Queensland judgments where Holmes JA (who recently replaced Carmody CJ as chief justice of Queensland) was the lone dissent. We know what four of the five judgments being appealed are broadly about:
- Fischer v Nemeske Pty Ltd  NSWCA 6, a dispute about a family trust, where minutes of a 1994 meeting of directors indicated a distribution of $4M of assets to two beneficiaries. Since then, both beneficiaries, their daughter and all but one of the directors have died, without any transfer of property. The NSW Court of Appeal unanimously held that the directors duly exercised their powers in 1994,that an oral resolution a month before accelerating the vesting day didn’t affect the distribution, that the distribution placed the trust in debt to the beneficiaries and that a 2004 directors’ declaration acknowledging the earlier events extended the period for enforcing the debt (which otherwise would have expired in 2007) so that the estate’s claim could proceed.
- Murdoch v The Queen  NTCCA 20, an appeal by a man convicted of sexually abusing his step-grandchild on three occasions. The Northern Territory Court of Criminal Appeal unanimously held that the trial judge properly admitted evidence from the complainant’s friend and relatives of the revelation of the abuse, that a direction to the jury that her revelations ‘were some evidence that an offence did occur’ was appropriate (despite their generality), and that the trial judge properly admitted her testimony about a later incident where the accused allegedly ran his hand up her leg during a massage as evidence of the accused’s sexual interest in her. The latter issue may finally draw the High Court into a dispute between the NSW and Victorian courts as to the meaning of the key terms ‘probative value’ and ‘significant probative value’ in Australia’s uniform evidence legislation.
- Mekpine Pty Ltd v Moreton Bay Regional Council  QCA 317, an action by a shopping centre tenant for compensation for land that the Council resumed for road improvements in 2008. When the lease was signed in 1999, it was over a lot unaffected by the later roadworks, but a redevelopment five years later combined that lot with another lot that was affected. While the trial judge and Holmes JA would have rejected the tenant’s claim, a majority of the Queensland Court of Appeal held that the amalgamation gave the tenant an interest in both lots and that, anyway, a statutory provision giving commercial tenants rights over ‘common areas’ meant that the tenant had a compensable interest in the area that was resumed.
- McDermott & Ors v Robinson Helicopter Company Incorporated  QCA 357, an action by a survivor of a fatal helicopter accident near the Queensland/Northern Territory border, alleging that the chopper’s maintenance manual gave inadequate instructions on how to check for loose bolts (the cause of the accident.) While the trial judge and Holmes JA held that the manual was adequate in requiring that a tape on key bolts be routinely visually inspected for signs of twisting, a majority of the Queensland Court of Appeal held that the manual should have recommended physically testing each bolt’s tightness with a spanner. (Presumably, the High Court’s interest in the case is not about the law of helicopter bolt maintenance manuals, but rather the appropriateness of an appeal court reversing a trial judge’s factual findings in a negligence case.)
The fifth judgment is an enigma for now. The judgment whose citation is provided by the High Court registry –  ACTCA 15 – is not currently available on court, public or commercial webpages. All we know is that it appears to be a criminal judgment and the Crown is listed as the applicant in the High Court. A possible explanation for the judgment’s non-availability is that it involves a defendant who was convicted at trial but who successfully obtained an order for a new trial on appeal on the basis that some of the evidence against him or her should not have been admitted (a finding that will have to be kept from any future jury.) I am not aware of an earlier occasion when the High Court has granted special leave in this circumstance. Crown appeals to the Court are rare and all the ones I am aware of are appeals against orders of stays or acquittals, rather than new trials.
The transcript of GW is up: http://www.austlii.edu.au/au/cases/cth/HCATrans/2015/267.html.
It seems as though it was a case involving child sex offending, in which questions arose as to the competence of a 6 year old child to give evidence, and the directions which ought to have been given to the jury given that the child was allowed to give unsworn evidence. The Court of Appeal seems to have held that the trial judge erred in applying s13 of the Evidence Act 2011 (ACT), in deciding to permit the witness to give unsworn evidence after concluding that he was “not satisfied that [the witness] did have the capacity” to understand the obligation to give truthful evidence. The ACT Court of Appeal seems to have held that (in the words of Senior Counsel for the respondent to the High Court special leave application) “if you are not sure then the default position is she gives sworn evidence”. Justice Bell, at the special leave hearing, pointed to the fact that the trial judge’s ruling was ex tempore, and that a close reading of the decision might indicate that the judge had not misunderstood the correct approach to applying s13. The respondent’s argument was essentially that this did not raise a question of general importance, even if the Court of Appeal was wrong to find the trial judge in error.
A second issue was whether the Court of Appeal was in error in finding that the trial judge should have given a direction to the jury about “the differences between sworn and unsworn evidence”. The respondent didn’t seek to argue that this did not raise a question of general importance, accepting that such a direction would, following the Court of Appeal’s decision, be sought as a matter of course by defence counsel, and required in every case in which a child gave unsworn evidence, at least where there was a significant risk of a miscarriage of justice. Rather, the respondent argued that the Court of Appeal’s decision to require such a direction was not attended by sufficient doubt for a grant of special leave, in “a highly contested case where you had … a contention that the … complainant … had been manipulated by the mother, which raises both questions of reliability and truthfulness”.
This is my reading of the transcript – the High Court submissions (and the judgment of the Court of Appeal, when made publicly available) may prove my reading wrong. I note finally that there is a judgment in a matter of GW in 2014, in which Refshauge J granted a stay of the execution of the sentence, pending appeal against a conviction for committing an act of indecency in the presence of a young person under the age of ten years: http://www.austlii.edu.au/au/cases/act/ACTCA/2014/54.html.
Thanks Joel. I agree with your reading. I must say that I think that Stephen Odgers’s argument that the issue was too slight to merit a special leave grant was quite compelling, especially as this was a Crown appeal. (As well, if the appeal is dismissed, then the trial will have been significantly delayed, which is no small matter when the complainant is now 6.) Nevertheless, the Court was obviously keen to take the case, as they didn’t call on the Crown.
In other news, the transcript for Murdoch (where Stephen Odgers also represents the defendant) confirms that the issue of the definition of ‘probative value’ under the uniform evidence law is front and centre to the application for leave. I have some qualms, though, about whether or not the Court will usefully reach this issue, as it isn’t really starkly raised by the evidence at trial. Also, the processes at trial and on appeal were quite complex, so there’s every possibility that the Court will find some other matter to be crucial.
It appears that both matters will be heard in December.
Further details about the High Court appeal from GW v R are set out in the latest High Court bulletin as follows: ”
Criminal law – Evidence – Unsworn statements – Where respondent was found guilty of committing acts of indecency upon or in the presence of children “R” and “H” contrary to s 61(1) of the Crimes Act 1900 (ACT) – Where R gave evidence at a pre-trial hearing but was unable to give sworn evidence due to her age – Where she gave unsworn evidence pursuant to s 13 of the Evidence Act 2011 (ACT) – Where evidence was admitted without a warning – Where the Court of Appeal overturned the conviction on the basis that the unsworn evidence of R should not have been admitted and the trial judge failed to direct the jury regarding the unsworn evidence of R – Whether, where witnesses give unsworn evidence pursuant to s 13 of the Evidence Act, there should be a requirement that the jury be warned that there is a difference between sworn and unsworn evidence – Whether a finding by a judge that a witness is not competent to give sworn evidence pursuant to s 13(3) of the Evidence Act requires a particular formulation of the warning.”
The Fischer appeal is far more limited in its scope. What appears below is from the latest High Court of Australia Bulletin:
Equity – Trusts and trustees – Power of Trustees – Maintenance and Advancement – Where first respondent is the trustee of the Nemes Family Trust and applicants are the “Specified Beneficiaries” – Where in July 1994 the trust recorded an “asset revaluation reserve” in the accounts of the trust in the amount of $3,904,300 – Where first respondent determined to make a distribution to Mr and Mrs Nemes but no money was paid out – Where, in 1995, first respondent executed a Deed of Charge in favour of the Nemes which recorded that trust was indebted to the Nemes to the sum of $3,904,300 – Whether a trustee of an express trust validly exercise a power to “advance” or “apply” the capital or income of that trust by resolving to pay or credit an amount of money to a beneficiary of the trust, notwithstanding that the trust assets do not include, and have never included, any money – Whether an action for money had received maintainable against a trustee upon the trustee stating an account to the relevant beneficiary, notwithstanding that the trustee continued to have ongoing active duties as trustee in respect of all of the trust assets from which any liability to the relevant beneficiary would be realised.