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  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  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)  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  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  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  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.