News: Court adds eight more appeals to its docket

The third quarter of 2019 saw eight new grants of special leave to appeal, compared to the second quarter’s fifteen. The current three quarter total of 28 leaves the Court very well placed to exceed last year’s all-time-low of 35 grants in a year. Fittingly, in a fortnight where the Court heard four criminal law-related appeals (allowing one summarily) and issued judgments or reasons in two more, the majority of the new grants are criminal law-related.

Seven of the eight new matters the Court will hear by the end of the year are appeals from the following judgments:

  • Hocking v Director-General of the National Archives of Australia [2019] FCAFC 12, an attempt by a political science academic to gain access to correspondence between John Kerr (a Whitlam/Fraser-era Governor-General of Australia) and Elizabeth Windsor (a monarch of various countries from the same era), lodged with Australia’s National Archives by Kerr’s secretary in 1978. A majority of the Full Court of the Federal Court held that the letters are not governed by a statutory scheme for access to Commonwealth records after thirty years because they are Kerr’s and Windsor’s personal property, rather than ‘Commonwealth’ property.
  • JB & Ors v Northern Territory of Australia [2019] NTCA 1, concerning the use of CS spray on teenagers detained in the Don Dale Detention Centre while they were ‘rioting’. The Northern Territory Court of Appeal held that the use of tear gas was not limited by rules on the discipline or restraint of detainees but rather was authorised by the Superintendent’s general power to take necessary steps to maintain order within the precincts of the centre.
  • Mackellar Mining Equipment Pty Ltd & Ors v Thornton & Ors [2019] QCA 77, which concerns the aftermath of 2005’s Lockhart River plane crash, Australia’s worst plane accident since the 1960s. After the American companies connected to the plane settled, Queensland’s Court of Appeal rejected an application by the plane’s Australian owners to end proceedings brought by some of the victims in a Missouri court.
  • R v Strbak [2019] QCA 42, concerning the manslaughter sentencing of the mother of a toddler who died from stomach injuries. The sentencing judge, relying on the testimony of her de facto (who had also spent time alone with the child during the relevant period) and noting her own failure to testify at the sentencing, found that the mother had struck the child. Queensland’s Court of Appeal dismissed her sentencing appeal, holding that she had not demonstrated any error in the sentencing judge’s fact-finding and that it was more likely that she caused the injuries rather than her de facto.
  • Scenic Tours Pty Ltd v Moore [2018] NSWCA 238, an appeal in the aftermath of a 2013 luxury Rhine river cruise that was ruined by flooding. The NSW Court of Appeal overturned the trial judge’s award of $16,000 to a passenger for breaches of the Australian Consumer Law for a number of reasons, including that claims for distress and disappointment were precluded by a NSW provision restricting claims for non-economic loss.
  • Singh v The Queen [2019] NTCCA 8 and The Queen v Nguyen [2019] NTSC 37, two criminal cases raising a common issue: whether a prosecutor has a duty to tender the record of an accused’s police interview when the accused’s statements were largely exculpatory. A majority of the Northern Territory Court of Appeal held that, while such statements would be admissible if the Crown tendered them, the prosecutor was under no duty to do so. In the first case (an appeal against conviction), Blokland J would have ruled that the prosecutor’s failure to tender the evidence was unfair because the prosecutor told the jurors: “It is my job as the prosecutor to present to you all of the evidence that police have collected during the investigation of this matter.” In the second (a pre-trial referral to the full court), she dismissed the appeal on the basis of the first case’s ruling, while urging the prosecution to reconsider its decision.
  • Swan v R [2018] NSWCCA 260, concerning responsibility for the death of an elderly man eight months after a home invasion, from complications arising from an untreated leg fracture that he suffered some time after the assault. The NSW Court of Criminal Appeal held, whether the fracture was due to a post-assault fall or an untreated kidney tumour, the home invader still caused his death, given the role of invasion injuries in either causing the fall or causing the man’s doctors to decide not to treat his tumour.

The eighth matter is a set of five criminal appeals from an unpublished judgment of the Western Australian Court of Appeal. Based on the names of the appellants, the case appears to concern the 2016 death in Perth of Paddy Slater at the hands of a group of people, including an 11-year-old who may have dealt the fatal blow, raising a question about his – and by implication, his accomplices’ – criminal responsibility for the death.

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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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