R v Baden-Clay [2016] HCA 35 is one of the High Court’s most-watched judgments, at least by non-lawyers. Indeed, this morning’s announcement of the Court’s orders in its Canberra premises was live-blogged on at least two Brisbane websites, so readers at home knew of the outcome some 15 minutes before the Court posted its judgment summary on its website. The rather brief proceeding (including other judgments and a hearing in a current appeal) was attended by friends of Baden-Clay’s victim, who told the media:

The law has acknowledged what we, who were closest to her, knew from that very morning Allison went missing — that is — that she was murdered… Today’s decision brings an end to Gerard’s attempts to smear Allison’s name. If some were in doubt as to his true nature, his behaviour after Allison disappeared and during the trial must have removed that doubt.

All of these matters were established by the jury’s verdict, but in Australia’s criminal justice system, appeal courts can sometimes second-guess the jury. In today’s judgment, the High Court firmly second-guessed the Queensland Court of Appeal’s second-guessing and also closed off all regular avenues for future second-guessing in the courts.

But some lawyers commenting on the decision have attributed more to today’s decision. Baden-Clay’s lawyer told the media: Continue reading →

Today, a 6-1 majority of the High Court upheld a 6-1 majority decision of the same court a decade ago to not revisit a unanimous decision of the same court 21 years ago, whose effect is eloquently described in Gageler J’s judgment as follows:

Three men set out to rob a bank. They adopt a simple plan. One of them, the driver, is to wait in the car. The other two are to enter the bank. One is to wave a gun. The other is to put the money in a bag. The two who enter the bank encounter a security guard. The gunman shoots him and he dies. Who of the three is liable for murder? The traditional answer of the common law is that the criminal liability of each depends on the intention of each. The gunman is liable for murder if he shot the security guard intending to cause death or grievous harm…. But what if shooting to kill or cause grievous harm was never part of the plan? The gunman went too far. The gun was not meant to be loaded. The gun was meant only to frighten….  The common law has of late given a different answer. The bagman and driver need not have intended that the gunman would shoot to kill or cause grievous harm as a possible means of carrying out the plan to rob the bank. It is enough for them to be liable for murder that they foresaw the possibility that the gunman would take it upon himself to shoot to kill or cause grievous harm and that they participated in the plan to rob the bank with that foresight.

Whereas the Privy Council and the Supreme Court of the United Kingdom ruled that the ‘common law of late’  was a ‘wrong turn’, the High Court today disagreed. Continue reading →

We were deeply saddened at Opinions on High to read of the death of Mr James Merralls, AM QC, editor of the Commonwealth Law Reports for the last forty seven years. The High Court issued a press release celebrating the considerable achievements of Mr Merralls:

Mr Merralls was the editor of the Commonwealth Law Reports, the authorised reports of the decisions of the High Court of Australia, for 47 years commencing in 1969. His unsurpassed period as editor was one of great public service to the Court, the profession and to the administration of justice in Australia. The high standard of his work as editor has been publicly acknowledged by two former Chief Justices of the Court, Sir Anthony Mason and Chief Justice Murray Gleeson. Mr Merralls, who served as an associate to another Chief Justice of this Court Sir Owen Dixon, rose to become a leading member of the Victorian Bar with a national reputation. He will be greatly missed.

I first came to know Mr Merralls after I sat next to him at a conference lunch about four years ago, although I had already known of him by reputation while in practice and when working at the Victorian Supreme Court. He was a polite and humble man who always stopped to say hello when he saw me; a gentleman. To my delight, it became evident that he was a reader of this blog, and he would engage me in debate about posts.

Mr Merralls’ humility did not stop others from recognising his considerable skills, and in 2013, he was awarded an Honorary Doctorate in Laws by the University of Melbourne. Then, in 2014, a Visiting Fellowship in Law was established at Melbourne Law School in Mr Merralls’ honour.

We extend our deepest condolences to Mr Merralls’ wife and children.

In a report published on Tuesday, former Australian High Court judge Ian Callinan found that New Zealander David Bain ‘has not proved on the balance of probabilities that he did not kill his siblings and his parents on the morning of the 20th of June 1994.’ While the judge’s career since leaving the High Court in 2007 has been characterised by government-commissioned reports (as well as sitting on an International Court of Justice dispute between Australia and East Timor), this is surely the first occasion that a retired High Court judge has played the role of judge of fact in a murder case. The Bain case, which turns on the question of whether David Bain shot his parents and three siblings at an isolated farm near their house in Dunedin (for no known motive), or whether Bain’s father committed a murder-suicide (possibly fearing revelations of abuse of his only youngest daughter) while his eldest son was on a paper run, has long divided New Zealanders. Remarkably, it has also been the subject of three controversial interventions by overseas judges. Continue reading →