News: Putting names to pseudonyms

On Monday, I wrote:

The Court’s judgment in Strickland is a powerful (if controversial) step in the promotion of the rule of law and the right to silence, but it is only a penultimate one. Only when (or if) the Victorian courts finally lift their suppression orders will the Australian public be able to judge to nobility or villainy of the investigators, prosecutors and courts in this matter.

Yesterday, the Supreme Court of Victoria reportedly lifted the suppression order, prompting the media to write at last on the High Court’s ruling two weeks ago and reveal that it concerned a high profile scandal: the involvement of two companies with close connections to the Reserve Bank of Australia in the bribery (said to total some $50 million) of various foreign government officials. The effect of the High Court’s 5-2 ruling  is that four of the alleged conspirators, all former executives of Note Printing Australia, which produces polymer notes for the Reserve Bank, cannot be tried on charges of bribery and (for three of them) false accounting. The media reporting also reveals that the two companies themselves both plead guilty to bribery, resulting in fines and heavy pecuniary penalties, and that a number of people have been convicted and sentenced (in some instances to prison) for their role in the scandal.

The lifting of the suppression orders means that the original judgments of Hollingworth J, which do not use pseudonyms, are now available. And that means that the pseudonyms in the High Court judgment can now be linked to actual names Continue reading

The Penultimate Peril: Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors

“Here are your blindfolds,” said one of the managers, opening the door and handing the children three pieces of black cloth. The Baudelaires suspected he was Ernest, as he hadn’t bothered to say ‘Hello.’ “Blindfolds?” Violet asked. “Everyone wears blindfolds at a High Court trial,” the manager replied, “except the judges, of course. Haven’t you heard the expression ‘Justice is blind’?”

Tony Strickland, according to Wikipedia, is a former Californian legislator who twice failed to make the jump to the US Congress. Strickland’s fellow High Court appellant, Donald Galloway, has a longer entry in the Internet’s encyclopaedia thanks to his prominent roles in 1960s procedural Ironside and 1980s soap General HospitalThe third man arrested alongside them on Friday 1 July 2011 doesn’t satisfy Wikipedia’s significance criterion; however, Google reveals that one Edmund Hodges is seeking a female penpal willing to overlook his imprisonment for a dramatic Chicago bank heist. Joining Strickland, Galloway and Hodges at the apex court is Rick Tucker, who was charged nearly two years after the others and whose name appears alongside Buddy Holly’s and Roy Orbison’s on various YouTube clips.

The only thing that the ex-legislator, ex-actor, ex-heister and ex-singer actually have in common is that their names were generated by one of the following websites:

Victoria’s Court of Appeal uses these sites ‘to comply with the state’s ubiquitous suppression laws, while avoiding the ‘alphabet soup’ problem posed by using initials instead. As Gageler J explains in Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors [2018] HCA 53, the quartet’s pseudonyms are courtesy of ‘orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record.’

All we really know about the four appellants is that they are either managers or employees of two companies that were given the (soupy) pseudonyms XYZ Ltd and QRS Ltd, presumably to the chagrin of a colour management company in Clayton South and a third party support company in Worcestershire. While all four men have appeared twice in Victoria Court of Appeal judgments in 2014 and 2017, the High Court judgment is the first time we learnt what they were actually arrested for in 2011 and 2013; Gageler J and Edelman J reveal that all four were charged with the federal offence of conspiracy to bribe a foreign public official and that three (excluding Tucker) were also charged with the Victorian offence of dishonestly falsifying a document for an accounting purpose. Each offence carries a maximum penalty of ten years in prison.

Well, there are two more things we now know. Justice Edelman quotes Strickland’s own counsel as admitting that the four were ‘”sharks”, not “minnows”‘. And a majority of the High Court has ruled that none of these sharks can ever be tried for their alleged crimes. Continue reading

News: Court’s workload in March and April 2019 is ‘extraordinarily large’

In a directions hearing on Wednesday, Gordon J rebuffed an attempt by Julian Burnside QC to avoid having a challenge to the Court’s 2004 Al-Kateb ruling heard in February (because he would be overseas) saying:

Well, the difficulty about it is twofold, Mr Burnside. One is that – and this is why they are insurmountable hurdles – this case, your client, has been in detention for a long time; that is the first. The second is that the Court’s workload in March and April is extraordinarily large and so, in the circumstances, the Court thinks that it would be in a sense the only opportunity and window to hear what I suspect is a one-day case in the second week of February.

This is the first indication from a High Court judge of the Court’s 2019 workload. What is not clear (to me, at least) is what the Court’s extraordinary workload in March and April next year will comprise. Continue reading

News: Two cases beat the odds on special leave

Last Friday’s oral special leave hearing in Canberra received blanket coverage because of the appearance, in the list and in person, of Rebel Wilson, hoping to restore the defamation damages award that she lost in Victoria’s Court of Appeal. She failed, which is unsurprising, as most applications for special leave to appeal to the High Court are unsuccessful. Moreover, the Court is in the midst of downswing on  special leave grants, compared to: past Novembers (where there have always been at least three and up to eight in the past decade); past three monthly cycles (three in the past three months, less than half the previous quarterly low of seven in late 2014); and past annual trends:

On the other hand, Wilson was fortunate to be one of six matters heard orally  this month(compared to forty heard – and rejected – on the papers) and also to have the Court only dismiss her application after hearing both sides’ oral submissions (the only one of the four unsuccessful oral matters on Friday to be afforded that courtesy) and a four minute adjournment.

The two cases that beat the long odds to be granted special leave this month are appeals from: Continue reading

Strickland (a pseudonym); Galloway (a pseudonym); Hodges (a pseudonym); Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions & Ors

The High Court has allowed appeals by four criminal defendants, upholding a trial judge’s stay of their prosecutions. The defendants were employees or managers of a company whose suspected criminal activity was first reported to the Australian Crime Commission in December 2008. Five months later, the ACC decided not to investigate the company but instead referred its alleged crimes to the Australian Federal Police. In 2010, pursuant to an agreement between the ACC and the AFP, an ACC examiner questioned the four defendants. In each case, the defendants first declined a request to participate in interviews under caution with the AFP and then were required to answer the examiners questions under threat of criminal punishment. The examiner, despite being aware that all four were criminal suspects, allowed between six and nine AFP officers to secretly watch the examinations from an adjoining room and made directions that permitted the examination recordings and transcripts to be made available to the AFP investigators and the staff of the Commonwealth Director of Public Prosecutions. The defendants were later charged with the federal offence of bribing a foreign official and the Victorian offence of false accounting. The trial judge found that the examinations were authorised by the ACC Act, but ordered a permanent stay of the prosecutions. Victoria’s Court of Appeal unanimously reached the opposite conclusions, holding that the examinations were illegal, but overturning the stay. At both the trial and (over the defendants’ objections) the appeal, the ACC was given leave to intervene.

A 5-2 majority of the High Court (Kiefel CJ, Bell, Keane, Nettle & Edelman JJ, Gageler and Gordon JJ dissenting) allowed the defendants’ appeal to the High Court and dismissed the Cth DPP’s appeal to the Court of Appeal. Citing suppression orders made in other courts, the Court temporarily barred the public release of the full, unredacted reasons for judgment until 10am on 14th November 2018. As noted by Gageler J at [116], ‘[b]y orders of the Supreme Court of Victoria, unchallenged in the appeals and made for reasons not revealed in the appellate record, the appellant in each appeal has been assigned a pseudonym. The appellants are referred to as Mr Strickland, Mr Galloway, Mr Hodges and Mr Tucker. The company for which all of them once worked has been assigned the pseudonym XYZ Ltd.’

Legality of the examinations

The Court unanimously upheld the Court of Appeal’s finding that the ACC examiner’s questioning of the four defendants  was unlawful. Continue reading

Comptroller General of Customs v Zappia

The High Court has allowed an appeal against a decision of the Full Federal Court on the definition of persons who ‘has, or has been entrusted with, the possession, custody or control’ of goods on which customs duty is payable. Zappia worked for his father and his father’s company, Zaps Transport (Aust) Pty Ltd, as its warehouse and general manager and, as notified to the Australian Taxation Office, Zappia was one of the people who participated in management and control of the warehouse. Following the theft of tobacco products from the warehouse, the ATO served a notice of demand under s 35A(1) of the Customs Act 1901 (Cth) to Zappia, his father and Zaps. Section 35A(1) provides that

Where a person who has, or has been entrusted with, the possession, custody or control of dutiable goods which are subject to customs control:

(a) fails to keep those goods safely; or

(b) when so requested by a Collector, does not account for those goods to the satisfaction of a Collector in accordance with section 37;

that person shall, on demand in writing made by a Collector, pay to the Commonwealth an amount equal to the amount of the duty of Customs which would have been payable on those goods if they had been entered for home consumption on the day on which the demand was made.

The ATO notices stated that each failed to keep the goods that were stolen safe, and demanded the payment of the customs duty that would have been payable on the tobacco products. The Administrative Appeals Tribunal affirmed each ATO notice, finding that the products were not safely kept, and that Zappia, his father, and Zaps each exercised control over the products (at [18]). Continue reading

SAS Trustee Corporation v Miles

The High Court has allowed an appeal against a decision of the New South Wales Court of Appeal on pension entitlements for disabled members of the police force. The respondent Miles was injured on duty and medically discharged from the police force in 2003. He was certified under s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) as being ‘incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer’ on the basis of four orthopaedic injuries, and, in accordance with s 10(1A)(a) of that Act, was entitled to a superannuation allowance equal to 72.75 per cent of his salary (at [12]). Under s 10(1A)(b)(ii), a disabled police officer is, subject to some conditions, entitled to an additional amount that is ‘commensurate, in the opinion of [the appellant, the SAS Trustee Corporation], with the member’s incapacity for work outside the police force’. From 2004 onwards, Miles made a number of applications under s 10(1A)(b) to increase his superannuation allowance, including to recognise a diagnosis of post-traumatic stress disorder in 2009 (see at [13]ff). A majority of the NSWCA held that ‘incapacity for work outside the police force’ meant an incapacity for work, whatever the cause, rather than an incapacity for work caused by being hurt on duty while a police officer (the view taken by Schmidt J in dissent, and Judge Neilson at the NSWDC).

The High Court unanimously allowed the appeal. The joint judges (Kiefel CJ, Bell and Nettle JJ) held that the phrase ‘member’s incapacity for work outside the police force’ means an incapacity from a specific physical or mental infirmity determined to have been caused by the member being hurt while on duty as a police officer. The joint judges began by recounting the statutory provisions and facts ([2]ff), before reiterating that s 10(1A)(b)(ii) allows for a constructional choice between the additional amount being paid for incapacity regardless of the cause of injury (the respondent’s contention) and paid only for the incapacity caused by being hurt on duty as a police officer (the appellant’s contention) (see [17][19]).

Noting that the starting point for statutory construction is the text of the provision in light of its context and purpose, the joint judges held that textual and contextual indicators in surrounding provisions operated to limit s 10(1A)(b)(ii) (at [20]). Section 7 suggested, or at least was consistent with, the legislative intention that no allowance be paid on work incapacities not caused by being hurt on duty (at [21]). The use of cognate phrases like ‘incapacity’ in nearby sections (see [22], [23], [26]), the additional amount being commensurate with ‘abnormal risks’ that the member was exposed to (at [24]), the unlikelihood that additional amounts by reference to risk extended to risks unconnected to police work (at [25]), and that no allowance is payable for members who resign or retire due to an injury that has not been determined under s 10B(3) (at [27]) together suggest that incapacity means one caused by being hurt on duty. The joint judges also rejected the  NSWCA majority and respondent’s suggestion that the power to vary an additional amount ‘at any time’ do not run counter to the section applying only to incapacities relating to on duty injuries (at [28]), and the respondent’s argument that recent case law supported their contentions (at [30]ff). Finally, the joint judges held that the appellant’s construction was consistent with the Act’s legislative history and extrinsic materials (see [33]ff), and rejected the respondent’s final contention that inconsistent requirements for SAS to seek medical advice at some points in the process suggested the respondent’s construction was correct: these points did nothing to lessen the force of the joint judges’ earlier considerations in favour of the appellant’s view (at [38ff]).

Gageler J agreed with the orders of the joint judges, endorsing the conclusions of Schmidt J on the NSWCA. For Gageler J, the ‘elaborate structure’ of determining the additional  allowance under s 10(1A)(b) or (c) works coherently if, and only if, the incapacity for each is the same incapacity, and that it is determined to have been caused by the member being hurt on duty (at [53]). The alternative construction of s 10(1A)(b)(ii) taken up by the NSWCA, that it refers to incapacity regardless of the source of incapacity, is textually available, but would distort the complementary operation of sub-ss (b) and (c) (at [56]).

Edelman J also agreed with the orders of the joint judges. Edelman J noted that the respondent’s argument encounters a textual difficulty where s 10(1A) is read with the definitions in the Act: the allowance is ‘for’ both a person and a purpose, where the person must be a police officer and the purpose must be to provide for an incapacity ultimately caused by the member being hurt on duty (at [62]). The ordinary meaning of s 10(1A) requires the allowance to be confined to that purpose (at [63]), and the wider context and purpose aligns with and reinforces that natural meaning (at [65]).

High Court Judgment [2018] HCA 55 14 November 2018
Result Appeal allowed
High Court Documents SAS v Miles
Full Court Hearing [2018] HCATrans 147 16 August 2018
Special Leave Hearing [2017] HCATrans 208 20 October 2017
Appeal from NSWCA [2017] NSWCA 86 4 May 2017
Trial Judgment
[2016] NSWDC 56 11 April 2016

News: Court restricts publication of its reasons for ending a criminal prosecution

Yesterday, the High Court allowed an appeal by four criminal defendants against a unanimous judgment of the Victorian Court of Appeal and set aside two orders made by that court. According to the judgment summary of the High Court ruling, a majority of the Court ‘ordered that prosecutions of the appellants for offences against the Criminal Code (Cth) and the Crimes Act 1958 (Vic) be permanently stayed.’ This means that the prosecution of the four defendants, whoever they are, for a number of federal and state offences, whatever they are, is over, for ever. The summary explains that all seven High Court justices found that one of Australia’s peak crime investigating bodies, the Australian Crime Commission, illegally allowed its extraordinary coercive powers to be used by another peak investigative body, the Australian Federal Police, to overcome the four defendants’ legitimate refusal to explain the possibly illegal activities of a (pseudonymous) company, XYZ Limited. According to the summary, a majority of the seven judges held that ‘in the circumstances of the case, to allow the prosecutions to proceed would bring the administration of justice into disrepute.’

This is an extraordinary ruling. The Court’s findings, especially if it turns out that the allleged crimes or criminals are high profile, would ordinarily be big news, both for the legal community and to the wider public. However, for now, suppression orders made somewhere – it’s a Victorian case – are preventing not only the naming of the defendants but also the release of the High Court’s reasons for judgment. Continue reading

McPhillamy v The Queen

The High Court has allowed an appeal against a conviction for child sexual abuse. The defendant, an acolyte at St Michael’s and St John’s Cathedral in Bathurst, was accused of sexually assaulting “A”, an altar boy under his supervision, on two occasions in 1995-1996 in the public toilets of the church. At the trial, the prosecution was permitted to call evidence from “B” and “C”, two students boarding at St Stanislaus’ College in Bathurst, that the defendant, their boarding master, assaulted them in school bedrooms while purporting to comfort them in 1985. The trial judge directed the jury that “If you find that [the appellant] had a sexual interest in male children in their early teenage years, who were under his supervision, and that he had such an interest in ‘A’, it may indicate that the particular allegations are true.” The jury convicted the defendant of the charges relating to “A” and a majority of the NSW Court of Criminal Appeal dismissed his appeal.

The Court (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ) allowed the defendant’s appeal at the end of the oral hearing. Continue reading

Republic of Nauru v WET040 [No 1] and [No 2]

The High Court has allowed an appeal against a decision of the Supreme Court of Nauru on testing the credibility of refugee claim evidence and the obligation for the Nauru Refugee Status Review Tribunal to give reasons for its decision.

On 7 November 2018, the Court (Gageler, Nettle and Edelman JJ) held that Nauru’s October 2017 invocation of the High Court’s jurisdiction under s 5 of the Nauru (High Court Appeals) Act 1976 (Cth) was valid. While the Agreement underpinning that statute was terminated on 12 December 2017, with effect from 13 March 2018, the agreement to terminate provided that it would not affect proceedings instituted before the date of termination (at [8]). Once the proceedings were instituted by filing the notice of appeal, the procedure applicable to them was governed entirely by the High Court Rules, not the termination agreement, and thus the Court still has the power to determine the appeal (at [10]ff).

The respondent is an Iranian national who applied for refugee status on the basis that, following the breakdown of his marriage, he began to receive violent threats from his family in-law and what he claimed were false allegations of domestic abuse against his wife, and that, if returned to Iran, he feared that his father-in-law would use his connections within the state to have him imprisoned or killed (see [5]ff).

After the Nauruan Secretary rejected his claim, the respondent claimed that he fled Iran on the basis of political and religious opinion, and that his in-laws were Islamic fundamentalists and, in the case of the father-in-law, a member of a fundamentalist state security organisation (see [12]ff). The Tribunal responded to each of these ‘shifting set of explanations’, rejecting the respondent’s account (at [16]ff). On appeal, the Supreme Court of Nauru (Crulci J) held that the Tribunal’s findings against the credibility of the respondent’s account were unsound and that it had not given full reasons for its decision: in dealing with credibility, an event was only ‘implausible’ if it was ‘inherently unlikely’ or involved ‘basic inconsistencies’ in the evidence or country information (at [25]), and the Tribunal had not follow that standard.

The Court (Gageler, Nettle and Edelman JJ) held that that Crucli J had erred. Her Honour’s reasoning was based on a judgment that was later overtuned on appeal, misemphasised the observations of the FCAFC majority in another case, and, most importantly, mischaracterised the Tribunal’s implausibility findings as speculative, conjecture or unsupported by basic inconsistencies (at [26]). The Tribunal had soundly reasoned that the respondent had changed his evidence and given an improbable account of events, in each case making rational inferences from doubts about his account (see at [27]ff). Regrading the appellant’s argument that, even if the Tribunal had not given full reasons for its findings of implausibility, the reasons it did give would have satisfied the statutory requirements (at [37ff]), the High Court held that the adequacy of reasons ultimately turns on the facts and circumstances of each case, and that the Tribunal’s extensive reasons clearly met that standard (at [39]).

The Court ordered that the judgment of the Supreme Court of Nauru be set aside and in its place an order that the appeal to that Court be dismissed.

High Court Judgment [2018] HCA 60 5 December 2018
Result Appeal allowed
High Court Documents WET040
Order Extending Appeal [2018] HCA 56 7 November 2018
Full Court Hearing [2018] HCATrans 230 7 November 2018
Appeal from NRSC [2017] NRSC 79 28 September 2017

Wehbe v Minister for Home Affairs

The High Court has dismissed an application to extend the time limit on an application to the Court for judicial review under the Migration Act 1958 (Cth), and also dismissed the plaintiff’s application for an order to show cause. The plaintiff’s migration agent made a series of errors on her application for a partnership visa, including a misstatement made to the Minister’s delegate. That misstatement regarded the plaintiff’s marriage status: she had been married in Iran in 2014, that relationship came to an end in 2015, but she did not have an official divorce decree, and the certificate of her second marriage to an Australian citizen in 2017 described her as ‘Never Validly Married’ (see [3]ff). The delegate refused the application on the basis that the applicant had provided ‘a bogus document or information that is false or misleading’, namely the ‘Never Validly Married’ marriage certificate, the statement in the application that she had been previously married, and the agent’s response that the divorce was still in progress (see [9]ff). Despite the agent emailing the delegate to attempt to explain the misstatement, the delegate stated that no information had been received to consider a waiver of the condition, and that the decision would stand (at [12]ff). The agent also Continue reading