News: Five special leave grants round off the year

In its final week of formal sittings, the High Court granted special leave in five matters (one on the papers, four in oral hearings in Sydney and Melbourne), taking the total of 2017’s special leave grants to 43.

The five cases that will be appealed to the High Court sometime in the first third or so of 2018 are:

  • Bauer (a Pseudonym) v The Queen (No 2) [2017] VSCA 176, which involves allegations of a foster carer’s repeated sexual abuse of children in his care. After he was convicted in relation to one of the five complainants, Victoria’s Court of Appeal upheld four appeal grounds: that the jury should not have been shown a recording of the complainant’s testimony from an earlier trial (because her ‘preference’ not to testify did not establish her ‘unwillingness’ to testify), that another foster daughter’s evidence that she saw the alleged abuse lacked the required ‘significant probative value’ (because the abuse alleged lacked any distinctive feature, such as brazenness), that a count that rested solely on the other foster daughter’s evidence should have been tried separately, and that the complainant’s out-of-court account of the abuse around a decade after the alleged events commenced lacked the requirement that it be ‘fresh in [her] memory’. (This case revisits two recent major High Court evidence rulings in child sexual abuse cases: IMM, on the meaning of probative value, and Hughes, on the meaning of significant probative value.)
  • Coshott v Spencer [2017] NSWCA 118, a dispute about legal costs where the costs of a family’s litigation were paid by another family member. After the family member (but not the family parties) challenged the family’s solicitor’s bill of costs, the NSW Court of Appeal ruled that the costs assessor was allowed to determine whether or not the family member had an obligation to fund the litigation, and in any case rightly dismissed the application given the small amounts involved. As well, the Court held that the family member had to pay the solicitor’s own professional costs in defending the costs application (an exception to the usual rule that self-represented professional costs cannot be claimed.)
  • DL v R (No 2) [2017] NSWCCA 58, a delayed sentencing appeal for a teen defendant convicted of the seemingly unmotivated murder of another teen. The NSW Court of Criminal Appeal had to resentence him because his earlier 22 year sentence was determined under a view of the law since overturned by the High Court. Relying on events in the subsequent decade (including the non-emergence of the defendant’s mental illness, which the trial judge had predicted would explain the original murder, and the defendant’s maintaining his innocence since then), the majority reimposed the earlier sentence. (The High Court refused special leave to appeal the NSW Court’s dismissal of the teen’s appeal against his conviction.)
  • Lane v R [2017] NSWCCA 46, a manslaughter appeal concerning a fight between strangers outside a Sydney pub, where CCTV showed that the victim twice hit his head on the roadway in the space of ten seconds. The NSW Court of Criminal Appeal ruled that the jury should have been told that they needed to be unanimous that whichever act of the accused caused the victim’s death was voluntary and not in self-defence, but a majority held that the lack of such a direction caused no miscarriage of justice in this case. The Court also dismissed appeals based on the jury’s apparent access to a magazine criticising ‘one-punch’ and ‘king hit’ killings.
  • Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82, which involves the thorny question of when immigration decisions can be reviewed by a court. After the Administrative Appeals Tribunals refused to review a visa rejection on two grounds – the review was requested late without a ‘compelling reason’ and the applicant owed money to the Commonwealth without a plan to repay it – the Federal Circuit Court overturned that refusal, citing the Commonwealth’s concession that the Tribunal applied the wrong test for ‘compelling reason’. However, a majority of the full court of the Federal Court restored the tribunal ruling, holding that, whether or not the Tribunal’s error was ‘jurisdictional’, the debt issue provided an adequate (and unreviewable) reason for the Tribunal’s decision.
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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.

One thought on “News: Five special leave grants round off the year

  1. Jeremy,
    A bit of trivia for you-in the matter of DLv The Queen all counsel were women.Keane J spoilt an all female line up.

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