The High Court has decided a challenge in its original jurisdiction to two ministerial determinations on ‘offshore resources activity’ and associated vessels, both of which impact on the visa conditions of non-citizens involved in work in various offshore resources industries. The initial challenge was to the Minister’s decisions made in March 2015 under ss 9A(6) and 33(2)(b)(ii) of the Migration Act 1958 (Cth), which respectively empower the Minister to make a determination to define an Continue reading
Monthly Archives: August 2016
The Queen v Baden-Clay
The High Court has allowed an appeal against a decision of the QCA to substitute a conviction of murder for one of manslaughter on the basis of the jury’s verdict being reasonable. Baden-Clay was found guilty of the murder of his wife by a jury after a trial at which he gave evidence that he did not fight with her, kill her or dispose of her body. On appeal, the QCA held that while the evidence supported a finding that Baden-Clay had killed his wife, it did not allow it to be satisfied beyond reasonable doubt that he had intended either to kill her or cause her grievous bodily harm, and specifically that the prosecution had not excluded the hypothesis that Baden-Clay had fought with his wife without intent to kill or cause grievous bodily harm and in the course of that Continue reading
NH v DPP; Jakaj v DPP; Zefi v DPP; Stakaj v DPP
The High Court has allowed four appeals from a judgment of the Full Court of the Supreme Court of South Australia on jury procedures. After it emerged that the jury foreman may have misunderstood the trial judge’s question about whether or not ten or more of the jury had voted to find the appellants not guilty of murder, the DPP applied for orders to expunge or quash those verdicts, the judgment of acquittal, and the alternative convictions of manslaughter returned by the jury, and an order for a new trial on the murder charges. A majority of the SASCFC Continue reading
News: Claim Baden-Clay judgment sets a ‘massive precedent’
R v Baden-Clay  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
Deal v Father Pius Kodakkathanath
The High Court has allowed an appeal against a decision of the Victorian Court of Appeal concerning workplace accident compensation and the connections between tasks and anticipated risks. The appellant, a primary school teacher, was injured after falling from a small step-ladder while removing artwork from a wall at the school. Regulation 3.1.2 of the Occupational Health and Safety Regulations 2007 (Vic) requires that an employer ensure that the risk of a musculoskeletal disorder ‘associated with’ a Continue reading
Sio v The Queen
The High Court has allowed an appeal against a decision of the New South Wales Court of Criminal Appeal on the unreasonableness of a conviction for armed robbery with wounding in light of that conviction’s inconsistency with an acquittal for murder, and on the use of a convicted criminal’s statements to police in convicting an accomplice. At trial, the appellant was acquitted of murder, but convicted of one count of armed robbery with wounding for his role in the robbery of a brothel by his co-offender, who stabbed and killed an employee of the brothel. The co-offender had made a statement to police that alleged the appellant had driven and encouraged him to commit the robbery, but did not testify at the defendant’s trial. The NSWCCA held that Continue reading
Miller v The Queen; Smith v The Queen; Presley v DPP (SA)
The High Court has allowed three appeals against a decision of the South Australian Supreme Court on the extended joint criminal enterprise doctrine of complicity, in the context of a murder conviction. Miller and two others were convicted of murder through extended joint criminal enterprise for their involvement in a confrontation in which a fourth man, Betts, stabbed and killed one of the victims. The SASC rejected Miller’s arguments that the verdict was unsafe because the trial judge had erred in misdirecting the jury by leaving open extended joint criminal enterprise in relation Continue reading
News: High Court rejects challenge to Australia’s common law of complicity
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
News: Vale James Merralls AM QC
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.
News: When the High Court went on strike
The High Court’s Gageler J will deliver a lecture at Melbourne Law School titled ‘When the High Court went on strike’. According to the blurb:
This lecture covers a little known historical episode from the early history of the High Court when the justices went ‘on strike’. This historical episode will be used as a basis for a broader exploration of the question of judicial independence.
The speech happens to coincide with the start of a period of reduced activity in the current High Court, which has nothing scheduled between 2nd September and 2nd October. The High Court’s 2016 schedule differs from all past ones since at least 1999, where the Court sat in the first two weeks of September, while having all (or nearly all) of July off. By contrast, this year, the Court sat in the final two weeks of both July and August.
Justice Gageler will present the Allen Hope Southey Memorial Lecture in the law school at 6pm on 6th September.
Coralling the penalties horse: Paciocco v Australia and New Zealand Banking Group Ltd
It’s said that you can’t shut the stable door after the horse has bolted, but this presumes that there is only one door. If there is a gate on the field around the stable, then the horse can be successfully corralled by shutting the second door, even if the first door is left wide open. And in Paciocco v Australia and New Zealand Banking Group Ltd  HCA 28, the High Court effectively shut a ‘second door’ to prevent the penalties doctrine from escaping. The ‘doors’ are the two questions a court must ask when establishing whether a clause is a penalty and thus void or unenforceable:
- Is this a clause to which penalties doctrine applies?
- On the facts, is this clause a penalty?
The first door had been left ajar in Andrews v Australia and New Zealand Banking Group Ltd  HCA 30, potentially allowing the penalties doctrine to invalidate (at least partially) a wider range of clauses. This post will focus on the penalties doctrine rather than on the statutory claims of the appellants. It is suggested that after Paciocco there will only be a very small number of cases where plaintiffs can successfully challenge contractual clauses as void or unenforceable penalties. The Court’s findings regarding the question of whether a specific clause was a penalty indicate that the second door has been closed so that only the tiniest crack remains. This will be a relief for organisations such as banks and utility companies as they will have greater latitude to charge late payment fees. And it will provide particular relief for construction contractors, who were concerned that abatement provisions (often used in PPP or Public Private Partnerships) and time bar provisions would be penalties pursuant to Andrews. Continue reading
News: Former High Court judge rules on high profile NZ murder case
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