Six special leave grants this quarter

This week, the United States Supreme Court heard its first case connected to a major true crime podcast- the superb second season of American Public Media’s superb anthology series, In The Dark – and seems likely to quash the result of the sixth trial of Curtis Flowers for a Mississippi multiple murder. Today, the High Court also heard its first case connected to a true crime podcast – the first of The Australian‘s efforts in the genre – and refused the Attorney-General special leave to appeal the NSW Court of Appeal’s ruling that NSW’s double jeopardy statute did not permit a retrial following the defendant’s acquittal on charges for multiple murders in Bowraville.

In the first quarter of this year, the High Court granted special leave to appeal in six cases: two in its February oral hearings, three in its March oral hearings and one grant on the papers. The cases the High Court will hear appeals from later this year are:

  • A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174, which concerns whether a slight injury to a child’s clitoris is female genital mutilation. A jury convicted the children’s mother and two others after two children described a ceremony involving a knife that hurt their genitals when they were aged between six and eight. However, the NSW Court of Criminal Appeal ruled that the jury were wrongly directed that cutting a clitoris ‘to any extent’ is ‘mutilation’ and – noting fresh evidence that both children now have clitorises (including clitoral heads) – acquitted the defendants.
  • BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, in which an asylum seeker applied for a visa based on fears of persecution in Sri Lanka because of his connection to the Tamil Tigers. The Immigration Assessment Authority rejected his claim after noting his brother’s description of the relevant events (in the brother’s visa application) did not match the applicant’s. The Full Court of the Federal Court held that the Authority’s use of the brother’s statement was not unreasonable and that it was not obliged to disclose the brother’s words to the applicant before making its decision.
  • Commissioner of Taxation v Sharpcan Pty Ltd [2018] FCAFC 163, about how to tax the income of poker machine venues who became poker machine operators after a change to the law in 2009.  The Royal Daylesford Hotel, whose patrons put $10M  into its 18 machines each year, claimed a $600K deduction for the licences it purchased that allowed it to operate the machines after the law changed. A divided Full Court of the Federal Court held that the the $600K could be claimed as a general deduction because the new licenses were not a capital expense and that, in any case, the hotel could have claimed any capital expenses as deductions  over time under a scheme for capital expenditure that preserves (but does not enhance) good will.
  • Commissioner of the Australian Federal Police v Kalimuthu [No 2] [2018] WASCA 192 and Lordianto v Commissioner of the Australian Federal Police [2018] NSWCA 199, which concern whether police can seize bank accounts that receive deposits in amounts of less than $10,000 in breach of Australian financial transactions law. In each case, the account holders, who ran money transfer businesses and were not said to be complicit in any criminal activity, sought to have their bank accounts excluded from forfeiture on the basis that they received the money as third parties for sufficient consideration and in non-suspicious circumstances. A split NSW Court of Appeal ruled that the account holders were not third parties because their acquisition of the money was connected to the crime itself, while a split WA Court of Appeal found that they were. However, both courts also ruled that the money was not received for sufficient consideration and that (except for one of the two account holders in WA) the circumstances ought to have given rise to a reasonable suspicion that a crime was committed.
  • R v Fennell [2017] QCA 154, an appeal against a murder conviction based on circumstantial evidence, where the accused argued that the victim was killed by a burglar. The Queensland Court of Appeal, while acknowledging that the prosecution case was not one ‘of evidential perfection’, applied the High Court’s ruling in the Baden-Clay case to reject the burglar hypothesis as ‘mere conjecture’. The Court also rejected multiple complaints about the jury’s exposure to prejudicial evidence; the failings of his trial counsel; and the trial judge’s refusal to discharge the jury after a witness mentioned the accused’s ‘form’.
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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.

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