Two weeks ago, I ‘live tweeted’ a hearing at Victoria’s Court of Appeal, sending out roughly 115 tweets in around an hour (‘storified’ here) of discussions about alleged contempt by three Ministers. It was my first try at live tweeting and the tweets were well received and distributed – and, it turns out, wrong. At last Friday’s hearing, a court officer told me that the use of mobile phones (or even having them on) is forbidden in Victoria’s Supreme Court When I asked if that included live tweeting, he told me that if I ‘argued any more’, I’d have to leave. It turns out, though, that there is a rule on live tweeting by ‘members of the public’ set out on the Court’s website:
Accredited journalists may use electronic equipment for the publication of material on the internet (blogging, twittering and similar)…. Non-accredited journalists, free-lance writers, ‘citizen journalists’ and members of the public need to seek permission from the trial judge for the use of electronic equipment in Court.
Alas, this rule is cleverly hidden away. While court visitors who consult the website’s instructions on ‘court etiquette‘ are simply told to ‘turn off all mobile phones and other electronic equipment’, those seeking the process allowing them to live tweet must first click ‘contact us’, then ‘media centre’, then a link that directs ‘members of the media’ to a document titled ‘media policies and practices‘, which has a heading – ‘journalists using electronic equipment in court’ – where the above discussion is buried in the middle (behind a sign that says ‘beware of the leopard’.) How visitors are meant to seek permission to live tweet appeal proceedings, particularly urgently scheduled ‘mentions’ such as those about contempt, is anyone’s guess.
So, what is the policy on live tweeting High Court proceedings? Continue reading
The High Court has dismissed an appeal on a constitutional matter on the operation of s 79 of the Judiciary Act 1903 (Cth). The appellant was a New South Wales resident who was convicted of state drug offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) in the Western Australia District Court by a majority jury verdict. As the trial was a ‘federal diversity’ matter (that is, between a state and the resident of another state), the WADC tried the appellant in exercise of its federal jurisdiction. The WASCA dismissed his arguments that this majority verdict was inconsistent with the requirement in s 80 of the Constitution that juries must return unanimous verdicts for convictions, and held that Western Australia’s state law on majority verdicts, and not s 80, applied to the case as a federal diversity matter, due to the operation of s 79. Before the High Court the appellant sought to contend that the WASCA erred in its application of the High Court’s decision in Momcilovic v The Queen  HCA 34, and that it erred in its approach to the interaction between the State law and s 79.
The High Court unanimously dismissed the appeal.
The plurality (Bell, Gageler, Keane, Nettle and Gordon JJ) held that s 6(1)(a) applied at the time of the appellant’s offences and continued to govern the assessment of his criminal liability, even though the WADC exercised federal jurisdiction to resolve the controversy between the appellant and WA about the Continue reading
The High Court has allowed an appeal against a decision of the Victorian Court of Appeal on the admissibility of photoboard identification evidence. The respondent was convicted of intentionally causing serious injury and making a threat to kill on the basis that he was the ‘old man’ who participated in a gang bashing, as identified by the victim, who selected him from a photoboard two years after the crime (but had made other wrong selections at the time). A majority of the VSCA allowed his appeal against conviction, holding that the trial judge erred in failing to exclude the photobaord evidence because its ‘seductive quality’ outweighed its weak probative value, setting aside the convictions and ordering a new trial. Before the High Court, the Crown sought to challenge these conclusions, and contended that the VSCA erred in assessing the probative value by reference to the complainant’s unreliability.
The High Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) unanimously allowed the appeal and restored the convictions, holding that the real issue was the majority’s conclusion that the identification’s probative value was outweighed by the danger of unfair prejudice to the respondent: Continue reading
The High Court has allowed an appeal against a decision of the Queensland Court of Appeal on unreasonable or insupportable jury verdicts. The appellant was convicted of aggravated indecent dealing with a child and acquitted of two other counts of the same offence. A majority of the QCA (Atkinson J, Morrison JA agreeing) rejected his appeal against that conviction, in which he contended that the guilty verdict was inconsistent with the not guilty verdicts for the other counts. Before the High Court, the appellant argued that the QCA majority failed to make an independent assessment of the evidence in determining that it was open to the jury to convict him, and that the majority erred in concluding that the verdict was not unreasonable (see at –[22).
The High Court unanimously allowed the appeal. The plurality judges (Bell, Gageler, Nettle and Gordon JJ) noted that there was ‘force’ to the appellant’s arguments that the lead judgment of Atkinson J did not disclose her Honour’s own Continue reading
UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.
Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says: Continue reading
At 1.25pm on Friday 4th June 1982, Gwyn Reiseger was driving on Coolart Road in Somerville on Victoria’s Mornington Peninsula. Ahead of her, she could see a small green Volkswagen waiting at a stop sign to cross the road. As she slowed down and indicated that she was turning left at the intersection, the driver of the green car slowly drove across Coolart Road. Unfortunately, he didn’t look the other way until too late. Seeing a silver Datsun speeding towards him at 90km/h, he stopped in the middle of the intersection. Reiseger heard a screech of brakes and then saw the Volkswagen spin off the road. Both cars were wrecked. She later told the coroner:
Both drivers were having a conversation when I got there. I told someone to go and ring an ambulance. The driver was still seated in the vehicle and I had a quick look at him and he seemed to be alright. He had a cut on his left calf which was the only injury I observed.
The Datsun driver, navy diver Russell Crawford, was uninjured. After the ambulance left, he asked a tow truck operator who the Volkswagen driver was. He was told that it was Keith Aickin.
Two weeks later, and thirty-five years ago yesterday, the High Court’s Sir Keith Aickin died at Melbourne’s Prince Henry’s Hospital. Continue reading
My co-editor Katy Barnett has lately lamented the lack of special leave grants in private law matters. She will be happy about the three grants last Friday. In my view, a particular pleasure of private law matters is how hard-fought they can be over minutiae. An example is one of the three matters granted, which was described as follows in the lower court by the dissenting judge:
This is yet another appeal in what has been a long and bitterly contested series of actions and appeals between Clone Pty Ltd (“Clone”) and Players Pty Ltd (“Players”). There have already been two sets of proceedings that have been the subject of appeals to the Full Court and unsuccessful applications for leave to appeal to the High Court.
For added interest, one side of the dispute – who lost two High Court special leave applications but succeeded in their most recent state appeal – includes three well-known sports stars. Their opponent – a company owned by a wealthy family including a high profile investment banker – obtained leave to appeal the reopening of their victory 11 years ago. Astonishingly, the core dispute is about whether the word ‘NIL’ in a 1994 lease agreement was crossed out with a blue pen, to be resolved by examining four surviving photocopies of the lease because the original was lost. (For a taste of the factual subtleties of that process, see the dissenting judgment at -.) And yet, the case raises some very major issues indeed concerning civil discovery, the obligations of civil litigants and the finality of civil rulings.
The three matters where leave have been granted are: Continue reading
Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.
One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:
to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.
This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:
Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”
Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”
Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.
The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. Continue reading
The High Court has dismissed two appeals against a decision of the Full Federal Court on restrictive trade practices law and the location of markets, specifically the meaning of a market ‘in Australia’. Section 4E of the Competition and Consumer Act 2010 (Cth) provides that for the purposes of the Act ‘market’ means, absent a contrary intention, a ‘market in Australia’. The ACCC brought proceedings against the two appellant airlines, who are both involved in transporting cargo from other countries into Australia, claiming that the airlines had engaged in collusive behaviour by fixing surcharges and fees on air cargo arriving into Australia from Hong Kong, Singapore and Indonesia. The airlines claimed that the markets for that cargo were located in the departure nations, not Australia, and thus the provisions of the Act did not apply to their dealings there. The primary judge agreed with the airlines, holding that the markets were located in those countries because they were where the decision to choose an airline to carry freight into Australia took effect (the ‘switching decision’), and that decision was made when the Continue reading
The High Court has dismissed an appeal against a decision of the New South Wales Court of Criminal Appeal on tendency evidence in the context of multiple child sexual offences. The appellant, a well-known actor in a 1980s television series, was convicted of nine child sexual offences and sentenced to 10 years and nine months imprisonment. Among the evidence at trial was evidence from a range of complainants and other witnesses on the appellant’s sexual interactions with them, which was said to establish a tendency of the appellant to act in a particular way or have a particular state of mind, specifically, holding a sexual interest in children, using his social, familial and employment relationships to gain access to them, and engaging in particular kinds of sexual conduct. The NSWCCA dismissed his appeal against the conviction and sentence, rejecting (among a number of other arguments) that the trial judge erred in allowing the tendency Continue reading
This may not seem like news, but it is a first in nearly four decades. While the High Court’s Sydney Registry is often host to hearings of Australia’s apex court, these have long been limited to minor fare: special leave hearings, case management and the like, involving between one and three judges. By contrast, today’s hearings involve the Court’s core business (appeals) and at least five judges, something that last happened in Sydney on 10th and 11th March 1980, when all seven members of the Barwick Court heard a workers compensation dispute.
What changed after that date? The opening of the High Court’s first and only dedicated premises in May 1980 in Canberra. While Sir Garfield wanted that move to mark an end to the Court’s ‘circuits’ of Australian capitals (then administered by its Sydney Registry), a combination of resistance from the other judges (who didn’t want to live in Canberra) and state bars preserved the circuit system, albeit in a more limited form described in the Court’s most recent annual report as follows:
The Court conducts its sittings in Canberra and such other places as are determined by a Rule of Court made by the Justices in the preceding year. In addition, applications for special leave to appeal to the Court are heard regularly in Sydney and Melbourne, and the Court continues the practice, established on its inauguration, of sitting in Brisbane, Adelaide, Perth and Hobart if warranted by the amount of business.
So, what has changed now? Continue reading
Monday evening was the launch of the latest ‘thematic’ issue of the UNSW Law Journal. This issue’s theme is ‘The Individual Judge’, which is also the title of Kiefel CJ’s 2014 speech and paper, where she first said ‘collegiality is not compromise’. The paper is one of three where she has defended the High Court’s practice of attributing judgments largely written by one judge to all the judges who agreed with it. While there is much of interest in the new issue of the UNSWLJ, only one of the articles responds directly to Kiefel CJ’s stance. The paper by Andisheh Partovi et al sets out five arguments for correctly attributing authorship of judgments: ensuring individual accountability (an argument I also put here), discouraging free riding, and serving the interests of judges, academics and lawyers. More importantly, the authors acted on their views by outing the likely authors of the joint judgments of the High Court from 1987 to 1995, when Sir Anthony Mason was Chief Justice. Needless to say, their list is absolutely fascinating.
So, who, out of the eight judges who sat in that period, likely wrote the most important joint judgments of the Mason Court? Continue reading