News: Leave granted in three criminal cases

The April sittings saw the High Court rejecting all of the special leave matters heard on the papers, including Valve’s high profile argument that its Steam gaming platform is not subject to the Australian Consumer Law. But the Court granted half of the (six) matters it heard orally on Friday, all criminal appeals, including one on the topical question of how to establish whether or not cannabis found at someone’s home was harvested from two plants.

The three cases that the Court will visit on appeal are:

  • McPhillamy v R [2017] NSWCCA 130, yet another case on the difficult issue of admitting other abuse allegations at a trial of charges of historic organisational child sexual abuse. The jury convicted the defendant, an acolyte of Bathurst Cathedral, of charges of abusing an altar boy in the mid-1990s, after the trial judge allowed the prosecution to lead evidence from two people who said that he  had abused them the previous decade when he was an assistant housemaster at St Stanislaus’ College. The majority of the NSW Court of Criminal Appeal (briefly) held that, despite the gap in time and differences between the allegations,  the earlier evidence was admissible because it showed a pattern of abuse of authority when the opportunity arose. (The Court also unanimously held that the failure of trial judge King DCJ to give reasons caused no unfairness to the accused in this case.)
  • Outback Ballooning Pty Ltd v Work Health Authority and Bamber [2017] NTCA 7, on whether and precisely when state and territory work safety laws can apply to planes and other air vehicles. The defendant, an Alice Springs hot air balloon operator, was prosecuted under Northern Territory work safety law after one of its passengers died when her scarf was sucked into an inflation fan as she boarded a balloon. The Northern Territory Court of Appeal upheld the magistrate’s dismissal of the charge, ruling that a 2011 Federal Court decision meant that federal civil aviation statutes overrode state and territory work safety statutes in aviation contexts, including boarding accidents.
  • Rodi v Western Australia [2017] WASCA 81, concerning a police officer who changed his evidence on cannbis yields between trials. The defendant was convicted of possessing 1kg of cannabis found in his house ‘for sale’ in part because a police officer testified that the two plants outside his house could only have yielded at most 800g of cannabis head. A majority of the Western Australian Court of Appeal ruled that the police officer’s failure to disclose that he had previously testified that a female cannabis plant could yield up to 600g of cannabis head did not cause a miscarriage of justice, because the defendant made a tactical choice to rely primarily on his own claims of yield, his good character and the lack of trafficking paraphernalia at his house to establish that the cannabis was for personal (medicinal) use, rather than challenging the police evidence.
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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.