News: Six new administrative and criminal law cases

In sittings in Canberra and Sydney yesterday, the High Court granted special leave to appeal six decisions, consisting of two administrative law matters and four criminal law ones. As well, in the special leave hearing concerning R & M v IBAC, discussed here, French CJ continued the order Nettle J gave  suppressing the names of the two police officers who IBAC wants to publicly examine ‘until further order’, despite Nettle J’s earlier expressed ‘doubts as to whether publication of the name of either applicant at this stage of the proceeding would give rise to any real risk of prejudice to a fair trial, when and if they are ever charged with any offences arising out of the subject matter of the inquiry’.

The cases where the High Court will hear appeals (most likely early next year) are:

  • Acquista Investments Pty Ltd  v The Urban Renewal Authority [2015] SASCFC 91, a challenge to the validity of a controversial Cabinet decision to sell a large parcel of Crown land north of Adelaide (formerly the site of the ill-fated ‘multi-function polis‘) to a consortium that made an unsolicited bid to use it as an oil and gas hub. South Australia’s auditor-general criticised the process leading to the sale, but the Premier and a Minister were recently cleared of public maladministration by the state’s anti-corruption commission. A majority of the full court of the Supreme Court of South Australia dismissed a challenge by two waste management companies who said they wished to purchase parts of the land itself (and whom the majority doubted had standing to sue), holding that the Cabinet decision was not amenable to judicial review and, in any case, was neither unlawful nor unreasonable.
  • May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93, where a five-judge bench of the Federal Court considered whether a RAAF pilot whose career was cut short by what was loosely described as ‘vertigo’ that gradually arose after he was vaccinated suffered an ‘injury’ for the purposes of a military compensation statute. The Court held that a tribunal and judge were wrong to reject the compensation claim on the basis that the vertigo was not ‘sudden’. The five-judge bench also applied its recent ruling on the Federal Court’s jurisdiction to hear appeals from the Administrative Appeals Tribunal to hold that the question of whether or not the vertigo was an injury was a ‘question of law’ that was capable of being appealed.
  • Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98, which concerns whether and how one jurisdiction’s offence of escaping lawful custody applies to prisoners outside that jurisdiction who are being transferred to it. The defendant was being transferred to NSW to face fraud charges when he briefly escaped from two police officers at Tullamarine airport (a ‘Commonwealth place’ within Victoria.) The NSW Court of Appeal, including Leeming JA (who wrote a book on how conflicts of law are resolved), held that NSW’s escape offence applied, despite its terms not appearing to describe the defendant’s circumstances and without any reliance on the federal statute applying state laws to commonwealth places, because of a provision in the federal Service and Execution of Process Act that applies the destination state’s escape offence to people being transferred under that Act.
  • R & M v IBAC [2015] VSCA 271, concerning whether Victoria’s anti-corruption commission can hold a public examination of two police officers about matters on which they also face criminal charges. The case is yet another in the recent spate of High Court appeals on whether the principle of accusatorial justice limits the powers of investigatory bodies, and also its second case this year on the powers of anti-corruption commissions. (As discussed here, Victoria’s Court of Appeal, which had dismissed the pair’s appeal, regarded the police’s chances of success in the High Court as too low to justify delaying the public examination until the special leave application was heard.)
  • R v Presley, Miller & Smith [2015] SASCFC 53, where the South Australia Supreme Court dismissed appeals against convictions for murder by three men who went with a fourth man, Betts, to confront two others they had earlier argued with and were present when Betts fatally stabbed one with a knife. Miller unsuccessfully argued below that his jury should not have been directed on the possibility that Miller foresaw that Betts would plan to seriously hurt his victim (an unnecessary option given the DPP’s alternative argument that Miller himself intended serious harm), that his jury should have been directed on self-defence (because he may have thought Betts was defending himself) and that his conviction was unsafe. The latter issue was the basis for the High Court’s grant of special leave, in light of evidence that Miller’s blood alcohol level was in the order of 0.3 at the time of the crime, arguably preventing him from forming the required intention (or knowledge of Betts’s intention) to cause serious harm, an issue last addressed by the High Court in 1980.
  • R v Zaburoni [2014] QCA 77, examined whether evidence that a man learnt six years earlier he was HIV positive and that HIV could be transmitted by unprotected penis-vagina sex, lied to his new partner about his HIV status, engaged in unprotected sex with her for 21 months and later lied to the police about some of these matters was sufficient to allow a jury to conclude that he intended to transmit a serious disease (an offence with a maximum life sentence, for which he was sentenced to nine years imprisonment without parole.) A majority of the Court of Appeal held that it could, noting a similar 2006 appeal decision that included the High Court’s Keane JA, while the dissent, noting uncontradicted expert evidence that any instance of unprotected penis-vagina sex carries only a 0.1% chance of passing on HIV (suggesting that the defendant’s partner, who did contract HIV, was quite unlucky), held that it could only support a finding that the defendant was reckless and callous. A similar Victorian offence, intentionally causing another person to be infected with HIV, was recently abolished on the ground that it was unnecessary and discriminatory.
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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.

5 thoughts on “News: Six new administrative and criminal law cases

  1. I am curious about one thing in Mok v DPP. If the NSW Court of Appeal is right that Mok should be ‘taken to have been charged with a federal offence, namely, a contravention of s 310D of the Crimes Act as made applicable by reason of s 89(4) of the SEP Act’, then (under s80 of the Constitution) any trial on indictment ‘shall be held in the State where the offence was committed’, which in Mok’s case would be Victoria.

    Of course, that assumes that there is a trial on indictment. According to s4G of the federal crimes act, the offence (which carries 10 years imprisonment) is indictable. Under s4J, the offence can be tried summarily if both Mok and the prosecutor consent. Doing so would be in Mok’s interests in one sense (as his maximum penalty will be capped at 2 years – given how brief his escape was, it seems doubtful he’d face more than that anyway), but if he does not consent, then it is perhaps doubtful that he would be sent back to Victoria for a complex trial under federalised NSW law.

    • I would have thought your s.80 concerns foreclosed by R v Mario Perfili [1995] VSC 222; [1995] VICSC 222 (14 December 1995) CALLAWAY JA, SOUTHWELL AND VINCENT AJJA R. v. Toubya [1993] VicRp 14; (1993) 1 VR 226 at p 235

      • Thanks for mentioning these authorities. (I didn’t research any case law in my speculation above.)

        Having read them, I’m not sure Perfili is on point. On my reading, it says that s80’s venue requirement is satisfied by an allegation that the venue was as required, rather than proof that it was. I guess the Mok prosecutors could allege that Mok’s escape happened in NSW, but would they? (Perfili also queries whether the venue requirement in s80 can be waived, something that the High Court to date has ruled out for the jury requirement. But that issue is now up for further consideration in a separate HCA case.)

        Toubya is another matter. It holds that the question isn’t (just) where the acts took place but can also be where the result of the crime took place. (In that case, NSW acts of conspiracy in relation to an importation that happened in Victoria.) Fair enough, but the question is whether the crime of escaping lawful custody works the same way. Is s80’s venue requirement triggered exclusively by where the acts of escape happen, or also by what jurisdiction was to be escaped from? Maybe Toubya will be ‘followed’ in this context, but it doesn’t (on my reading) ‘foreclose’ other readings.

        Both are somewhat old cases, of course, and also, more importantly, not HCA cases.

  2. Some of the Federal Court’s comments in May are a trifle disturbing considering it was a per curiam judgment. It is peculiarly anti-science, which is troubling given it is effectively an anti-vaccine case.

    The Federal Court’s interpretation of Adelaide Stevedoring Co Ltd v Forst and the line “This focus on the need for an appropriate clinical diagnosis reflects a tendency to elevate a requirement for one kind of proof (medical opinion) over reasonably founded lay common-sense inference that is not scientifically derived, but drawn from the plain sequence of events” are worrying. It is appropriate to consider the limits of objective scientific evidence but not to cast it aside for “common sense”. Common sense is frequently wrong.

    It rather beggars belief that they are castigating the Tribunal for valuing scientific, objective evidence over “common sense” to the extent of overturning a decision on appeal on the basis the Tribunal has fallen into error by doing so. Also the castigation of the Tribunal for differentiating between symptoms and the underlying diagnosis- no more controversial than differentiating between a broken arm and the car crash that caused it, surely?- and for looking for some causal connection between the vaccinations and the alleged illness beyond the temporal one (this last appears to be a particularly clear error of reasoning by the Federal Court- the “temporal” connection only applies if the vaccinations caused the illness; otherwise there is no basis for saying the illness arose temporally during the course of employment. It is very clear that the Federal Court believes the vaccinations caused May’s vertigo and have assumed this in their reasoning, to the point of all but directing a decision in his favour when the matter is remitted to the Tribunal).

    The point about injury not needing to be sudden is only relevant if, as the Federal Court does, you believe there was an injury arising in the course of employment in the first place.

    Definitely hoping for a High Court overrule in this case, it seems an obviously bad one (much like Isbester from the Vic SC earlier in the year which has already been overruled by the HC, is there something in the Administrative Law water at the moment?)

  3. Arky, military compensation law has a quite unusual proof provision. Section 335 of the Military Rehabilitation and Compensation Act provides that any injury that ‘relates to’ service is a ‘service injury’ unless the Commission is satisfied beyond reasonable doubt that it is not a service injury, which is defined to mean that there is no reasonable hypothesis connecting the injury to the service. To say the least, that’s a system weighted in favour of finding connections between injury and service! That system explains why the definition of ‘injury’ looms larger than questions of proof and (perhaps) explains the FCAFC’s view that a combination of ‘common-sense’ and (the conclusion of the quote you mentioned) that ‘any such inference is not denied by medical science’ suffices.

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