News: 3 new cases in the Court’s non-s44 docket

As the High Court presumably braces for its next ‘job lot‘ of s. 44 cases, it has also added a relatively small number of new cases to its regular docket. While all special leave applications heard on the papers were rejected this month, the Court granted leave in Friday’s twin oral hearings in three matters. One grant is a rare (and welcome) instance of the High Court intervening in a criminal proceeding that has not yet gone to trial, in this case a very long running prosecution of four defendants on federal charges. The fact that the trial is yet to occur may (or may not) explain why the four are only referred to by pseudonyms and that the charges in question are not identified.

The three cases that will now be appealed to the High Court are:

  • DPP (Cth) v Galloway (a Pseudonym) & Ors [2017] VSCA 120, an appeal from a trial judge’s decision to stay a prosecution because the prosecutors were allowed to read transcripts of compelled testimony given by the defendants when they were already suspected of serious crimes. Victoria’s Court of Appeal overturned the stay on the grounds that the Australian Crime Commission made a genuine (rather than reckless) error in permitting the prosecutors to read the transcript and that the prosecutors learnt little from the transcripts that they did not already know thanks to the advanced state of the investigation. (In an earlier appeal, the Court of Appeal blocked the trial judge’s ruling that the defendants could cross-examine DPP lawyers about the advice they had given.)
  • Nobarani v Mariconte (No 2) [2017] NSWCA 124, a long-running battle between two friends of the deceased about a will she made a week before she died in favour of one friend. The NSW Court of Appeal accepted that the other friend, who had poor English and little legal knowledge, was denied procedural fairness when he was given little warning that a hearing, originally scheduled to address caveats he had lodged, instead resolved the substantive issue of whether the will was valid. However, a majority held that there was no actual injustice, as the estate had settled with the beneficiary of an earlier will (the Animal Welfare League) and the other friend couldn’t prove the existence of a different will said to be in his favour.
  • R v Collins [2017] QCA 113, an appeal against a rape conviction, where the evidence included the complainant’s statement to her mother that the defendant had raped her. After the defendant drew attention to a difference between the mother’s evidence at the trial and at an earlier committal, the trial judge told the jury that the earlier version was only evidence about the mother’s credibility, not the truth of what the complainant said to her. The Court of Appeal accepted that that was a misdirection in the circumstances, but nevertheless dismissed the appeal (in two paragraphs) because of the strength of the prosecution’s case.
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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.