The latest round of special leave determinations is notable for the attention the media gave to some refusals of leave. On Wednesday, the Court published a list of thirteen written refusals of leave. One, refusing Victoria’s Attorney-General leave to appeal Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306 (where the Court of Appeal held that the Ombudsman can investigate a referral from the Legislative Council concerning entitlements) was reported with the headline ‘High Court delivers embarrassing blow to Andrews government‘, including criticism from the shadow Attorney-General of the challenge’s ‘scandalous waste of taxpayer dollars’. The Court’s disposition (published the next day) stated:
The application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.
which does, perhaps, qualify as somewhat embarrassing. A second case, refusing leave from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, which held that misleading labelling on Nurofen warranted a penalty of $6M (as ‘the bottom of the appropriate range for the contraventions’), was widely reported, including internationally, through Associated Press under the headline ‘Australian court rejects British painkiller firm’s appeal‘. The disposition stated that ‘The decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant the grant of special leave to appeal’, which is perhaps a little less embarrassing than the disposition of the Ombudsman matter.
The wider significance of special leave determinations has always been hard to parse, as the Court’s reasons are not always about the merits of the appeal or the arguments made by either side and, anyway, they typically only represent the views of two of the Court’s seven judges. However, the Court’s shift to written determinations, while a welcome saving of (amongst others’) ‘taxpayer dollars’, have made it even harder to judge the flavour of any particular determination, because we no longer have access to clues that would appear i a transcript of the oral hearing about the arguments that were made by each side and the particular views of the judges about the merits and other issues. An extreme illustration is a matter granted leave on the papers on Thursday. Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215, part of a decade-long saga of proceeds of crime litigation, is 1275 paragraphs (and nearly 130,000 words) long. Justice Morrison’s judgment begins with a 5-page overview detailing the three appeals dealt with (each with notices of contention), the seven common issues, the sixteen appeal grounds, eighteen determinations of general disputes and the eleven outcomes for particular assets – and his judgment turns out to be in dissent on a number of key issues! The High Court granted the Commonwealth leave in each appeal, but we don’t yet know what arguments they raised (and what notices of contention will be raised.) We may get a hint when the transcript announcing the written determination s published, but otherwise we will have to wait until the next High Court bulletin (for a brief summary) or the parties’ submissions on appeal (for fuller details.)
Having noted these uncertainties, here are summaries of the four cases where leave was granted last week, all criminal and three from Queensland:
- Commissioner of the Australian Federal Police v Hart & Ors; Flying Fighters Pty Ltd v Commonwealth of Australia & Anor; Commonwealth of Australia v Yak 3 Investments Pty Ltd & Ors [2016] QCA 215 is a federal effort to unwind the financial crimes of accountant Steve Hart, who was convicted in 2005 of defrauding the Commonwealth over a tax-minimisation scheme he organised with multiple clients. While his conviction triggered a $13M pecuniary penalty and the automatic seizure of Hart’s own assets, the Queensland Supreme Court needed to resolve the status of assets held by companies associated with Hart (notably his collection of planes, which was quite difficult to value.) Amongst many other determinations, a majority of the Court of Appeal gave those companies a partial victory, by holding that they could avoid forfeiture if their assets were ‘substantially’ (rather than entirely) lawfully derived.
- R v Craig [2016] QCA 166, concerns a domestic violence murder conviction. The Queensland Court of Appeal held that the defendant was wrongly advised not to testify because of the risk that his prior conviction for another unlawful killing would be raised, but that there was no miscarriage of justice because there were other sound reasons for him not to testify. The Court also rejected the defendant’s complaints about the trial judge’s directions on the victim’s multiple wounds and on the basis of his defence of provocation.
- R v Hamra [2016] SASCFC 130 is now the second case currently before the High Court on South Australia’s offence of persistent exploitation of a child. Here, the trial judge dismissed a charge under this offence on the ground that the allegations – by a now 50-year-old man of ‘routine’ abuse by his step-father between 1977 and 1982 – lacked sufficient detail to identify at least two particular incidents of abuse. A five-judge bench of the full court of the Supreme Court of South Australia unanimously disagreed, holding that the allegations were sufficient to allow a conviction. They also held that the Court’s new statutory power to allow appeals against an acquittal by a trial judge applied to offences committed before that power was enacted, but divided on the consequences. While Peek J would have sent the matter back to the original trial judge to resume the hearing in accordance with the correct law, the remainder held that the Court only had power to order an entirely new trial.
- R v Koani [2016] QCA 289, is (another) domestic violence murder conviction. Unusually, this killing occurred in front of witnesses, who said that the defendant pointed a gun at his girlfriend, said ‘I don’t care if I go back to jail’, the gun fired and she died. The complication is that the gun was faulty and was capable of going off ‘half cocked’ (i.e. by the defendant pulling the trigger a centimetre and then letting go, accidentally or otherwise.) A majority of the Queensland Court of Appeal held that, under Queensland’s Criminal Code, the defendant could be convicted of murder even if he accidentally fired the gun, so long as he was negligent in doing so and wanted his girlfriend to be seriously injured. The Court also unanimously held that one of the witnesses was properly prompted by a transcript of his earlier evidence at the defendant’s committal to concede that he had also heard the defendant say ‘I’ll shoot you’ just before the gun fired.
Thahks so much for this update, Professor Jeremy — it will be interesting to follow these proceedings. I should add as a Queeslander that the place is not nearly as violent and unpredictable as these applications might tend to suggest.
Even as a Queeslander everybody else should be assured that it is!
As someone who grew up in Queensland, I certainly didn’t notice any wave of (non-state) violence, although that was decades ago. Anyway, special leave grants are a pretty poor way of learning something about a particular state (though, maybe, they could indicate something about the courts?)
Transcripts for all four grants are now out. The transcripts reveal nothing at all about Hart and Koani. However, the oral transcripts make it clear that Hamra has received its grant (and DL its adjournment) because of commonalities with the earlier SA grant in Chiro, and the two will be heard together (although the acquittal issue in Hamra will also get a run.) And the sole issue in Craig appears to be the one about the flawed legal advice the defendant was given prior to his decision not to testify and his plea to manslaughter -I have to say that I’m surprised this one was granted.
Jeremy/Andrew — good evening — Just a thought: I find myself getting a bit confused these days about ‘dispositions’ and ‘bulletins’ and what-not emanating from the court and those who report on its proceedings. Is there any sort of ready reference or method of keeping up to date (apart from this excellent web page) where one can get a bit better informed about the meaning of these expressions and similar, as used in current business of the court?
I think my problem is simply that I was admitted (in Queensland) some 24 years ago and not being a frequent litigator in the HC of A, I’ve just lost the thread a bit. Perhaps one of your visitors can help with an outline?
Kevin, as a non-litigator, my main source of court publications is two web pages – the High Court’s own page, which publishes orders (as well as lists of upcoming hearings, and submissions from pending and decided matters from this decade) and Austlii, which is where the Court’s main outputs (including transcripts, special leave dispositions, bulletins and ‘short particulars’) are published. I’m not aware of any definitions of any of these things, and I’m not sure they keep the same meaning from year to year. What the Court sorely lacks is an electronic ‘docket’ which tells you what is before the Court in any sense, its history and current status, and all relevant documents. The other federal courts have this: https://www.comcourts.gov.au/public/esearch. It would surely be technically trivial to add the High Court to this service, but there must be some non-technical reason that is preventing it.
Tks so much, Jeremy — that is helpful.
R v Koani will prove interesting.
The majority in the Qld C of A observed:
“Where a person who holds a murderous intent towards another picks up a gun to shoot the other person and, as a result of a failure on the person’s part to take reasonable care and precaution, the gun discharges, it would be incongruous that, because the gun discharged earlier and not in precisely the way the person intended, the person who kills is guilty of manslaughter and not murder.”
Not really, I say. It may well be within one of the worst categories of manslaughter, but it is not murder. The intent has to accompany the act of killing (or perhaps the ‘event’ of killing – the event for s 23 of the Qld Criminal Code) and not just ‘accompany’ in a temporal sense but in the sense that the killing is willed. Brandishing the weapon carelessly – as those who are robbing, assailing, threatening, overcoming resistance – no doubt tend to do disrupts the one integrated concept of willing a death and causing it through exercise of that will.
Still — we have a long history of pondering this sort of thing in Code jurisdictions. My favourite — I can’t recall the name of the case — involved a man who struck out at his wife with a stick in the pitch black night (aiming on hearing her voice) intending to cause her some pain and some harm…and actually striking the infant in her arms (the killer did not know his wife was carrying their child) and killing the babe in arms. Might be Supreme Court of PNG, actually.
Jeremy — any insights on why the HCA appears to be sitting a full court for two appeals in Sydney in June?
Hi Anon. Thanks, I hadn’t noticed that… and I have no idea. What’s especially strange is that neither appeal is from Sydney. And one is from Canberra.
Canberra is pretty cold in June.