DL v The Queen

The High Court has dismissed an appeal against a decision of the Full Court of the Supreme Court of South Australia concerning the adequacy of a judge’s reasons for convicting the accused of the offence of persistent sexual exploitation of a child. The complainant alleged that the accused, his uncle, abused him between the ages of 5 and 15, including showing him pornographic videos at the age of around 7, masturbation while the complainant used a computer in a bedroom, an oral sex at various locations (a shed and a property where he grew cannabis, a house owned by a woman the accused was having an affair with, and before the complainant rode the accused’s motorbike.) The uncle denied all the claims of sexual abuse and disputed some other details of the accused’s claims, including the location of the computer and when the complainant visited the shed and other locations. The accused was charged with the following offence:

An adult person who, over a period of not less than 3 days, commits more than 1 act of sexual exploitation of a particular child under the prescribed age is guilty of an offence.

Maximum penalty: Imprisonment for life.

The trial was before a judge without a jury. The judge said the complainant presented as ‘a man endeavouring to tell the truth’ and ‘described real events’, while he was ‘unimpressed with the [accused’s] presentation.’ He wrote:

I also accept [the complainant] as a reliable witness as to the core allegations. I have scrutinised his account very carefully. Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being ‘stoned’), but they were not sufficient to cause me to doubt either his truthfulness or reliability. Any exaggeration was not deliberate. As reflected in cross-examination, he had trouble remembering the process whereby statements were taken from him, who he told beforehand, who he was with and when he made particular allegations. My comments above should not be overlooked and it should not be forgotten that the conduct alleged took place many times over many years.

After further discussion, he concluded:

I have considered whether the attributes of [the complainant] as a person and the various criticisms of his evidence caused me to have a reasonable doubt and they do not. I reject the evidence of the [appellant] on substantive issues where he denied the alleged sexual conduct. I find that the [appellant] sexually assaulted [the complainant] on numerous occasions over a period of some years. The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse.

As Nettle J put it (at [115]), ‘That was it.’ The accused lost his appeal to the Court of Criminal Appeal, but made a new argument in the High Court of Australia that the trial judge’s reasons were inadequate in light of the requirement that the court find at least two acts of sexual abuse by the accused proved beyond reasonable doubt.

A 3-2 majority of the High Court (Kiefel CJ, Keane and Edelman JJ, with Bell J and Nettle J dissenting) held that the trial judge’s reasons were adequate. Continue reading

Lane v The Queen

The High Court has allowed an appeal against a conviction for manslaughter in a case concerning the proviso that permits an appeal court to dismiss a criminal appeal despite an error of law if there was no substantial miscarriage of justice. The defendant was charged with murder after an altercation outside a hotel in Casino, NSW left a man with head injuries, from which he died nine days later.  CCTV showed that the man fell twice: the ‘first fall’ after he approached the defendant and then retreated with the defendant in pursuit, falling backwards and striking his head; the ‘second fall’ after he rose and faced the defendant and then fell backwards again, leaving him unconscious. Although the Crown initially argued that the accused was responsible for the second fall, it changed its case – after its expert said that either fall could have caused the man’s death – to arguing that the accused was responsible for both falls. The accused did not seek to argue that the first fall both caused the man’s death and was not the accused’s responsibility. The jury acquitted the accused of murder but convicted him of manslaughter. He was sentenced to a minimum of six years four months imprisonment. On appeal, the NSW Court of Criminal Appeal unanimously held that the trial judge erred by failing to tell the jury that they needed to be unanimous not just on their verdict but on which act of the accused was the basis of his criminal liability. However, a majority nevertheless dismissed the appeal because the the evidence was insufficient to establish that the accused caused the first fall.

A unanimous High Court (Kiefel CJ, Bell, Keane & Edelman JJ, and Gageler J concurring) held that the appeal ought to have been allowed. Continue reading

Minogue v Victoria

The High Court has answered the questions in a special case on parole orders for prisoners who murdered a police officer, and its applicability to the plaintiff. The plaintiff was convicted of the murder of a police officer in a bombing in Russell St, Melbourne, and sentenced to a non-parole period of 28 years. After that non-parole period expired in September 2016, the plaintiff applied for parole, and that application proceeded through the parole review through October 2016. On 14 December 2016, s 74AAA was inserted into the Corrections Act 1986 (Vic), and provided new conditions for making parole orders for prisoners who murdered a police officer. It provides:

(1) The Board must not make a parole order under section 74 or 78 in respect of a prisoner convicted and sentenced (whether before, on or after this section comes into operation) to a term of imprisonment with a non-parole period for the murder of a person who the prisoner knew was, or was reckless as to whether the person was, a police officer, unless an application for the parole order is made to the Board by or on behalf of the prisoner.

Sub-section 3 provides that the Board ‘must have regard to the record of the court in relation to the offending, including the judgment and the reasons for sentence.’ Sub-section 6 defines ‘police officer’ to include an officer who was performing the duties or exercising the powers of a police officer at the time of the murder, or a murder that ‘arose from’ or ‘was connected’ with the officer’s role as a police officer, regardless of whether the officer was performing the duties or exercising the powers of a police officer at the time of the murder.

The plaintiff had commenced proceedings before the High Court in January 2017, seeking declarations that s 74AAA did not apply to him or his parole application (see [12]). In December 2017, s 127A was inserted into the Corrections Act, which purports to make s 74AAA applicable to Continue reading

News: The individual judges

Yesterday’s four judgments from the High Court broke with some recent patterns in the Court’s reasons. In one case, involving a compensation claim for lost pensions due to an early death, two judges dissented. That is only mildly unusual, but the dissenting judges’ identity is much more surprising. Chief Justice Kiefel gave her first dissent in over two years, while Keane J gave his first in over a year. It’s been over three-and-a-half years since the only previous matter where both judges dissented, a 2014 case about patent extensions. In a different break with recent tradition, two of the three other unanimous cases had separate concurrences. Again, the identities are the surprise. The main judgment in each case was from Gordon & Edelman JJ,  while the Court’s most routine joiners, Kiefel CJ, Keane & Bell JJ, gave concurrences, yielding one case with three judgments and (in a first, and perhaps last) a Nauru case with a concurrence.

Yesterday’s concurrences are consistent with a recent presentation at the ANU by James Lee, a Reader at King’s College London, Continue reading

CRI028 v Republic of Nauru

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on the ‘internal relocation principle’ in refugee status determinations. The appellant, a Sunni Muslim from the ‘K District’ in the province of Punjab, moved to Karachi in 2004, departed Pakistan in 2013, and applied for asylum in Nauru in 2014. The appellant claimed he held a well-founded fear of persecution by the Muttahida Quami Movement (MQM) for the imputed political opinion of opposing MQM, and feared harm from them throughout Pakistan. The Secretary of the Department of Justice and Border Control refused the application. On appeal, the Nauruan Refugee Status Review Tribunal found that the appellant had a well-founded fear of persecution in Karachi, it affirmed the Secretary’s decision because the appellant could return to K District where he would not face a reasonable possibility of persecution. The NRSC upheld the Tribunal’s determination.

The High Court unanimously allowed the appeal. The joint judges (Gordon and Edelman JJ) held that the Tribunal fell into error in applying the principles on internal relocation, and hence the NRSC should have allowed the appeal. After laying out the provisions of the Refugees Act (at [18]ff), the joint judges turned to the internal relocation principle, reiterating that where a person claiming refugee status on the basis of a well-founded fear of persecution, and there is an area within their home country in which they would not have that fear, and the person could reasonably be expected to relocate there, then that person is not outside their home country due to a well-founded fear of persecution (see [24]). Continue reading

News: High Court plans to sit in Darwin in September

Last week, the High Court hosted a directions hearing before Nettle J for a coming appeal concerning compensation for loss of native title. The native title in question is around Timber Creek, in the northwest of the Northern Territory, but the hearing was held in Melbourne, some 4000km away. Its main purpose was to make orders about who can see gender-specific evidence relevant to the case, as outlined in this earlier post. Justice Nettle held that the evidence can be seen by the seven High Court justices (male or female), court staff (including associates) who any justice determines can hear the evidence (again, male or female), lawyers and experts who need to view the evidence (but only if they are men) and anyone else (but only with a court order after notice to the parties.) In passing, he noted that the case would be heard before all seven judges of the Court.

At the hearing’s conclusion, Nettle J made a further announcement:

Finally, lady and gentlemen, I should announce that subject to final confirmation, which will not be before the second week of June, it is intended that the appeals be heard in Darwin in the Supreme Court of the Northern Territory on 3 to 6 September of this year.

Continue reading