News: Six new cases as Morcombe matter ends

Friday’s High Court special leave hearings received particular attention in Queensland, with the Court rejecting an application for leave to appeal by Brett Cowan, who was convicted of murdering Sunshine Coast teenager Daniel Morcombe in 2011. The case drew attention because of the tragedy of a 13-year old’s violent death, the publicity given to police suspicions about Cowan at the coronial inquest, the oddity that Cowan was one of two otherwise unrelated child sex offenders who may have been in the vicinity when Morcombe vanished, and the playing out of the dispute about the Chief Justiceship of Tim Carmody during Cowan’s state appeal. Today’s hearing was attended by Morcombe’s parents, who were relieved that the matter was at an end and reportedly critical of the appeal process. However, the national Court’s refusal of leave will disappoint those who hoped it would revisit its earlier support for complex police stings such as the one used to obtain admissions from Cowan, especially given the recent revisiting of such operations by the Supreme Court of Canada, where the method originated.

The High Court nevertheless granted leave to appeal six cases, all of which are especially interesting:

  • Case Stated On Acquittal No 1 of 2015; R v Stakaj & N, H [2015] SASCFC 139 concerns court powers to remedy a jury trial train wreck. In a twist on the usual difficulty of determining whether four men involved in a fatal stabbing were guilty of murder or manslaughter, the jury foreman, after initially reporting a majority verdict of not guilty of murder and a unanimous verdict of guilty of manslaughter for all the accused, returned to court after the trial ended to explain that he had misunderstood the judge’s questions and the jury hadn’t acquitted anybody of murder. The Full Court of the Supreme Court of South Australia ruled that affidavits later taken from the jurors about their actual votes were admissible and (by majority) that the Supreme Court had an inherent jurisdiction to quash all the murder acquittals on the basis that they were invalid under South Australian law.
  • Flight Centre Limited v Australian Competition and Consumer Commission [2015] FCAFC 104 addresses the application of Australian competition law to travel agents. Australia’s competition regulator alleged that an agreement between travel agent Flight Centre and various airlines to the effect that the airlines would not offer prices directly to potential passengers that were lower than those that Flight Centre offered was a breach of competition law because Flight Centre and the airlines were competing for the passenger’s airline bookings. However, the full court of the Federal Court upheld Flight Centre’s appeal, ruling that the travel agent did not compete with the airlines but rather acted as their agent.
  • Lyons v State of Queensland [2015] QCA 159, a second case involving jury procedures. This plaintiff in a discrimination action was called up for jury duty but excluded from service because, although she could lip read, she required an AUSLAN interpreter to follow conversations in their entirety. The Court of Appeal upheld a tribunal ruling that the court registrar did not discriminate against the prospective juror because she was deaf, but rather because Queensland’s jury statute would have barred her from communicating with her AUSLAN interpreters while the jury was kept together to deliberate, leaving her disqualified as incapable of effectively performing her functions as a juror.
  • R v Graham [2015] QCA 137 returns the topic of bikie gang violence in Queensland to the High Court, this time in the context of a criminal trial after a gang member shot a rival and a passerby after a chance meeting at a Gold Coast shopping centre. Queensland’s Court of Appeal upheld the shooter’s convictions for attempted murder and unlawful wounding, holding that the trial judge had correctly directed the jury on how Queensland selfdefence law applied to the prosecutor’s arguments that the shooter either consented to, provoked or over-reacted to his rival’s drawing of a flick knife. The Court also dismissed the defendant’s appeal against his twelve-year sentence for attempted murder.
  • Sio v R [2015] NSWCCA 42 concerns the use of a criminal’s statements to the police to convict an accomplice. Arrested after a stabbing at a brothel, the stabber eventually told the police that he was put up to the crime by the defendant, but later refused to testify at the defendant’s trial. The Court of Criminal Appeal held that the jury was allowed to use a recording of the police interview with the stabber to convict the defendant because of a provision in Australia’s uniform evidence law allowing prosecutors to introduce the words of an eyewitness who is unavailable to testify and spoke against his own interests in circumstances that made his words likely to be reliable.
  • SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 involves the consequences of 2014’s widely publicised immigration department ‘data breach‘ that placed the names of nearly 10,000 refugee applicants on the internet for a fortnight. In a case involving two unsuccessful applicants who were facing removal when their names were revealed, the full court of the Federal Court held that a new statutory provision barring considerations of Australia’s non-refoulement obligations in removal cases did not apply to the applicants and anyway did not prevent the department from taking account of the Minister’s own consideration of such obligations; another provision preventing review of preliminary decisions did not prevent the federal courts from requiring the Minister to consider not removing the applicants; that the rules of natural justice applied to the departmental process initiated in response to the data breach; and that the department broke those rules by requiring the applicants to make submissions about the impact of the breach without the department disclosing everything it knew it. Finally, the court issued an injunction against removing the applicants, saying that the department’s conduct raised doubts about whether its assurance that it would not remove anyone while its own internal processes were ongoing should be trusted.

Somewhat unusually, the applications in the first of these cases was granted ‘on the papers‘, implying that the prosecution agreed with the defendants that their appeal was worthy of consideration by the High Court.

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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.