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.

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: Continue reading

News: Second quarter brings 15 special leave grants

At the year’s halfway mark, the High Court has made twenty grants of special leave to appeal, putting it on track to easily exceed last year’s low-point of thirty-five annual grants. The relatively chipper pace of grants so far (albeit still well off medium-term rates) is largely due to a bumper crop of nine grants – six in oral hearings and three on the papers – in May. The last time so many special leave applications were granted in a single leave cycle was a decade ago when the Court made eleven grants in a single day (12 March 2010.) Three of the new grants made this quarter are listed to be heard in August. That leaves the remaining twelve, plus one criminal matter granted leave in March, to be heard across the last third of 2019 (alongside any urgent or original jurisdiction matters.)

We can currently read the thirteen of the fifteen lower court decisions that the Court agreed to review in the past three cycles: Continue reading

News: One-sided oral special leave hearings

The High Court heard ten oral special leave hearings this month (with three grants, which I will summarise in my – now – quarterly grants post.) Of interest in the most recent batch is a phrase spoken at the end of eight of the ten hearings on Friday:

BELL J: Thank you, Mr Boyce, we do not need to hear from you.

BELL J: Mr Heaton, we do not need to hear from you.

BELL J: Thank you, Mr Boccabella. We do not need to hear from you, Mr McGlade.

BELL J: Yes, thank you, Ms Farnden. We do not need to hear from you.

GAGELER J: Thank you. We do not need to hear from you, Mr Crawshaw.

GAGELER J: Thank you, Mr Toomey. We do not need to hear from you, Mr Kirk.

GAGELER J: Thank you. Mr Lenehan, we do not need to call on you.

GAGELER J: Mr Walker, we do not need to hear from you, thank you.

This is the Court’s typical practice whenever it is minded to rule against one party after hearings its arguments, a practice it also follows in some full court hearings. It saves the other party the tedium preaching to the choir and permits the Court’s justices to get on with their busy special leave morning (or whatever they do in the afternoon.) As I noted in an earlier post, it is allied to a practice used in jury trials in England, Hong Kong and Australia that the Court declared contrary to law in this country last month, but it differs because judges hear arguments, not evidence, and do not require a direction on how to apply the law.

But it is surprising to see it featuring in contemporary special leave hearings, because the Court never has to hear special leave matters. Continue reading

News: The High Court and the federal election

The just announced federal election on 18th May 2019 doesn’t directly affect the High Court of Australia (as opposed to the other two branches of the federal government) but it indirectly affects it in several ways. First, elections are often preceded by election-related challenges, as occurred in three of the last four elections:

  • in 2007, the Court struck down legislation barring all prisoners from voting.
  • in 2010, the Court struck down legislation removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
  • in 2016, the Court rejected an argument that the 7 day statutory grace period should extend until election day and also rejected a challenge to the new Senate voting rules aimed at stopping preference harvesting.

Consistently with this trend, a directions hearing last week explored a narrow pre-election challenge concerning the 2019 election, specifically when the Australian Electoral Commission can release who it predicts are the two most likely candidates to win in each House of Representatives seats. A past lower house MP, Clive Palmer – you may have seen an ad or two by him recently – wants to bar such information from being released in some east coast seats when polls close there, because of the possibility that the AEC’s predictions could influence voting on the west coast where polls would remain open for two hours more. Justice Gordon tentatively scheduled a full court hearing for 6 May, under two weeks before the election but enough time for a speedy instruction to the AEC. However, whether the case will actually go ahead depends on whether the parties can agree on the facts and, as the Commonwealth Solicitor-General foreshadowed, whether Palmer himself or a lesser known person will be nominating for an east coast lower house seat.

However, the greatest impact of the federal election on the High Court is likely to come after the poll, when the Court sits as the Court of Disputed Returns to hear challenges to the announced election result. Continue reading

The Last Prasad Direction: Director of Public Prosecutions Reference No 1 of 2017

Yes Mr Gardner. Your Honour, I wanted to rise at this stage to urge Your Honour to consider giving a Prasad invitation to the jury.

Narendra Prasad is one of the unlucky Australians who have a rule of law named after them. But his rule isn’t really a rule, just some dicta (passing judicial commentary.) And it isn’t a really a law, just a practice that judges can choose to use in a criminal trial if they want to. As well, as of last month, it’s a practice they can no longer choose.

Prasad’s brush with the law began with a site at Adelaide’s West End where a Banh Mi shop now sits underneath one of the city’s ubiquitous Polites signs. In between the 1960s (when it was a Scientology HQ) and the 90s (when it was a lesbian bar), the address hosted a string of restaurants: The Brussels, Cedars, Tripoli, Fagans, Rogues, Bandito’s, Katz, and Out. In August 1974, Praspen Estates Pty Ltd, a company Prasad cofounded the previous year, bought Cedars, but he soon sold the company to the restaurant’s owners. Alas, in 1978, Victoria Penley, the other co-founder of Praspen (and the portmanteau’s other half), told police that Prasad sold their company without her knowledge. Prasad was charged with obtaining $7000 from Cedars’ operators under the false pretence that he owned their restaurant outright.

The prosecution’s case against Prasad rested on two witnesses. One was the company’s then lawyer, who contradicted Prasad’s story to the police that Penley gave up her shares because she didn’t want to own a restaurant; however, the since debarred Tennyson Turner’s credibility was, to put it mildly, under a cloud. The only other witness was Penley herself. She denied any transfer, but at times seemed to concede that her husband managed such things for her:

Is it a possibility that you could have signed this share certificate to transfer the shares back to Mr. Prasad and you have now forgotten about it, or didn’t notice at the time-isn’t that just a possibility?  I don’t think so. But isn’t it a possibility?  It could be.

Penley’s husband was not called to testify.

If that strikes you as a fairly thin basis to convict someone of false pretences, you aren’t alone. At the end of the prosecution case, Prasad’s lawyer, Kevin Borick, asked for the charge to be thrown out, but the trial judge and later the full court of South Australia’s Supreme Court ruled that Penley’s testimony was capable of supporting Prasad’s conviction. Nevertheless, two of the full court’s judges, including Len King, the state’s feted Chief Justice, noted that trial judges aren’t limited to either throwing a charge out or letting the trial continue. They have a third option: letting the jury choose whether to acquit immediately or hear the rest of the case.

Just four years later, that option – which was neither sought not used in Prasad’s own trial – was mentioned for the first time in the High Court. Justice Dawson, joining a unanimous ruling overturning a South Australian indecent assault conviction where the prosecution chose not to call the complainant as a witness, observed that the trial judge had refused the defendant’s request to give the jury a ‘Prasad invitation’. In 2006, the practice was mentioned again in the High Court by Chief Justice Gleeson, when he joined a unanimous holding that a NSW trial judge prejudged whether or not to throw out a protection racket charge at the end of the prosecution case. Neither Dawson J nor Gleeson CJ expressed any reservations about the practice, which received its third  and last High Court mention last month in a Victorian case. In Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9, a unanimous joint judgment ruled the practice ‘contrary to law’.

Mr Gardner, you know, I take it, that the direction, if I give it, will be offered to the jury in the context of them only having an option to acquit or to indicate that they want to hear more. Yes, I’m aware of that, Your Honour, and I’ve got an instruction to make this application.

There is a set order in criminal trials in an adversarial justice system like Australia’s. First, the prosecution gives an opening speech to the court and then the defence does. Then the prosecution presents its evidence (witnesses and the like) and then the defence can do the same (or not.) Next, the prosecution gives a closing speech and the defence can too. If there’s a jury, the trial judge will speak to them last. Finally, the verdict.

A fraught question in criminal procedure law is whether and when to deviate from this set order. Sometimes the variations are small ones – slight changes to the order of events, delays and the like – to cope with life’s and the law’s exigencies, matters that all trial judges must deal with ad hoc. But the Prasad issue is part of a much harder question: whether, when and how a trial should stop early if the prosecution case falters. This question pits the criminal justice system’s adversarial nature (where both sides play similar roles) against its accusatorial nature (where the burden of proving guilt falls on the state alone.)

One view is that criminal trials should never end early. In apartheid South Africa, for instance, trial judges were obliged to continue even after the prosecution case failed to prove an element of a crime, because  of the possibility that the defence may nevertheless be bungled in a way that convinces the court of the accused’s guilt. But that rule is roundly rejected nowadays as inconsistent with the accused’s right to remain silent.  Another view, taken in England, is that trial judges can stop a trial if the prosecution case is really weak because of bad, vague or inconsistent evidence. In 1990, the High Court (following earlier Australian courts, including South Australia’s in the Prasad case) rejected that view. The only situation where an Australian trial judge can stop a jury trial early is ‘if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’ Accordingly, it dismissed an appeal by a drug trafficking accused whose trial continued despite the main prosecution witness admitting to repeated lies to the police.

Australia’s rule allows some very flawed trials to continue through to the end. A startling recent example is a murder trial where the main evidence that the accused killed the victim at an isolated rural property was from a man who had moved in with the pair six weeks earlier. As he testified about discovering the accused standing over the victim’s bruised body, the accused shouted from the dock ‘it’s not true’, prompting the following statements by the witness (with Justice Richard Button intervening):

Who said that, how do you know it’s not fucking true I was there. Just a moment, sir. Just answer the questions that the prosecutor asks and then we’ll get through the process. It’s fucking true, Gary.  Just a moment. It’s so fucking true, you gronk. Just a moment, sir. We can’t have people yelling out in court, neither you nor him, otherwise we are not going to get through the process. Fucking murdering cunt. Take a moment and then we’ll– I should have fucking killed you too you cunt.

Now, it’s not every trial where the main prosecution witness seemingly admits to being the actual murderer in open court. And this was just one of numerous bad moments for the prosecution, including Button throwing out all the admissions the accused allegedly made to the police. Button later declared: ‘Since an early stage of the Crown case, I have considered that there is a significant possibility that an innocent man has been arrested, charged, incarcerated for almost exactly 4 years, and ultimately arraigned’.

And yet, consistently with the High Court’s ruling in 1990, he observed: ‘there is certainly some evidence implicating the accused in the death of the deceased; it is no doubt for that reason that no application was made for a verdict by direction by defence counsel’. Instead, the judge – who was deciding the facts without a jury after the accused was found unfit to stand trial – gave himself a Prasad invitation and acquitted the accused, declaring that the ‘continuation of this state of affairs is not to be countenanced’.

And yet, consistently with the High Court’s ruling last month, if the trial had happened just one year later, that state of affairs would have had to continue until the trial ended or the prosecution gave up. In urging the High Court to ban the Prasad process, Victoria’s Director of Public Prosecutions suggested that problematic cases could instead be dealt with by the judge urging the prosecutor to withdraw the case. She added that ‘such circumstances will be rare and should only occur where the issue as to sufficiency of evidence is glaringly obvious’.

Dr Rogers. There’s nothing before the jury about what precisely happened in the unit on the night of the 18th of July 2015. I agree. And in my submission that’s the short answer about why a Prasad direction should be resisted by Your Honour. As Your Honour pleases.

The case that led to the High Court banning the Prasad process is a less rare type of trial where the flaws of the prosecution case are less glaringly obvious: domestic homicide trials where the evidence reveals the deceased’s violence towards the accused.

In July 2015, Gayle Dunlop called the police to report that her long-term partner, John Reid, was bleeding from a fall. In fact, she had struck him with a timber footstool and he died a few days later. The prosecution led evidence of events leading up to Reid’s death that made it clear that Dunlop was the victim of domestic abuse. Her sister and daughter described seeing her bruises and being told ‘It’s none of your business and you know what goes on’. Another witness told of her explaining in front of Reid, a few weeks before he died, that she’d had a fall but later confiding: ‘I think he’s going to kill me’. Two police officers described being called to the couple’s house not long after to remove him at her request. On the night Reid was injured, neighbours heard a heated argument where Reid called Dunlop ‘you whore’. After her emergency call, forensics found her blood at the scene. When she was arrested that night, police initially ignored her requests to speak to her sister. When she finally did, she told her ‘You don’t know what I’ve been through’.

When Dunlop’s barrister Shane Gardner asked for a Prasad invitation at the close of the prosecution’s case, Supreme Court Justice Lex Lasry was initially dubious. He pointed out how such cases often cause public controversy, mentioning  a 1979 Victorian case where the reigning Miss Australia and her son were acquitted of the shooting murder of their husband and father, William Krope, after testifying about his violence and perversions. He noted that Victoria’s current law on the issue was complex and he would need to tell the jury about the fault elements of both murder and manslaughter and the recently amended law on self-defence. Gardner observed that Lasry himself had given a jury a Prasad direction in a complex (but different) homicide case a decade earlier, but the judge reflected on how he had experienced the ‘pitfalls’ of such directions as both judge and counsel, perhaps referring to how the jury in the earlier case ultimately convicted the accused of manslaughter.

Last year, New South Wales’s Justice Richard Button (two months before he gave himself a Prasad direction to end the domestic homicide trial described above) declined to give a Prasad direction to a jury in a still more extreme domestic homicide trial. Not only did the prosecution present multiple witnesses who testified to the deceased’s violence in several relationships and his extensive criminal record, but their case was that the accused fatally stabbed the deceased at the same time as he fractured her skull with a domestic clothes iron. Button’s reasons for declining to use Prasad were similar to those raised by Lasry eighteen months earlier: the complexity of the directions and the fact that self-defence raises not only factual but ‘normative’ considerations about what actions are reasonable:

As I remarked to counsel in discussing the application, such a question perhaps raises all sorts of “sub-questions” about the availability of alternative ways of protecting oneself; about how life is in an outback town as opposed to an urban centre; about possible alternative ways of getting help within an extended relationship marred by domestic violence; and countless other social matters. In short, I felt uncomfortable, with regard to that evaluative judgment, about providing even a “hint” to the jury as to how it should be determined; and, no matter how one expresses it, in my experience that is always how a Prasad invitation is received by a jury.

But the trial soon collapsed completely. Immediately after Button’s decision, the prosecution conceded that the murder charge – brought despite a magistrate refusing to commit her for that crime –  was never sustainable. Then, after several defence expert and character witnesses testified, the prosecution responded to a renewed request for a Prasad direction on the remaining manslaughter charge not only by supporting it, but urging the judge to simply tell the jury to acquit the accused. A flabbergasted Button complied and later ordered the prosecutor to pay the accused’s costs for the trial.

Ultimately, Lasry opted to give Dunlop’s jury a Prasad direction, noting that Victorian law now includes a lengthy provision requiring jurors to fully consider evidence of family violence. After his direction, the jury deliberated for an hour and then returned to say: ‘We would like to hear more evidence.’ Lasry responded: ‘It’s not a now or never. The choice that I offered you this morning is a choice that you can make at any time before the trial concludes’.

Bearing in mind your very economic submission, it is the fact that after the close of the prosecution case the jury has a right to acquit. Yes, Your Honour. What we’re discussing is whether they should be informed of it…

For decades, Canadian judges believed that they could never stop a jury trial themselves. Rather, their practice in cases where the prosecution evidence was inadequate was to tell the jury: ‘Since the accused have been placed in your hands, it is not for me to acquit them.  It is for you to do so’, before directing them that the accused is legally entitled to an acquittal. This lasted until a case reached the Supreme Court of Canada where a juror replied: ‘I don’t think all of us think that it’s not guilty.  Sorry.  Some of us still believe a guilty verdict should go through.’ The juror explained that some of them felt it wrong that they spent four weeks on a case without making a decision. After the judge told them he was happy to discuss the issue, but it had nothing to do with the verdict, the jury acquitted the accused. The Supreme Court responded by modifying the practice so that judges would enter the not guilty verdict themselves.

But what about the opposite situation? In a 1903 English trial, after the prosecution case had closed and the defence started calling its witnesses, the jury stopped the hearing and returned a verdict of ‘Not guilty’. The prosecutor said he wanted to address the jury but the judge told him ‘Your case is finished, and, that being so, the jury are entitled to exercise their right at any moment afterwards to say whether the case has been made out or not.’ Unsurprisingly, an identical practice to the Prasad direction – albeit without the catchy name – has long been and remains part of English law. In 1987, Hong Kong’s Court of Appeal, in response to a prosecutor’s reference, ruled: ‘Yes, there is a right in a jury to acquit an accused at any time after the close of the Crown’s case on the whole or any of the counts in the indictment.’ Citing Prasad itself, the Court of Appeal concluded that a judge has a duty to end a case in some circumstances and power to inform the jury of its right to do so in others, albeit ‘only in the rarest cases and after receiving submissions from counsel.’

The right to acquit ‘at any time’ has affinities to two other better established, albeit sometimes controversial, parts of court practice. One is the High Court’s own recurrent practice of stopping hearing a case after one side concludes its arguments. The Court exercised that power the same week it ended the Prasad direction, telling the parties to a constitutional challenge that it no longer wanted to hear arguments on part of that challenge.  The second is what Americans call the jury’s right of ‘nullification’ and English courts call a ‘perverse verdict’, where jurors acquit in face of the evidence and the law. A famous Australian example occurred in Adelaide several years after Prasad’s trial. In a murder case, where the accused killed her sleeping husband with an axe after discovering that he had been raping their daughters for years, the jury were told that their options were to convict the accused of either murder or manslaughter. They returned and asked how to acquit the accused completely. Two hours later, they did so, to widespread public approval.

Whatever the current status of those rights in Australia (and, indeed, the right of judges deciding alone to give themselves a Prasad direction), the High Court ruled last month that Australian common law ‘does not recognise that the jury empanelled to try a criminal case on indictment have a right to return a verdict of not guilty of their own motion’. The Court dismissed the early English cases on such a right as historical relics and more recent ones as sloppy references to a mere right to act on a trial judge’s invitation. (The justices were seemingly unaware of the Hong Kong ruling.) Rather, the Court held:

It cannot be that the jury possess a personal right to acquit at the close of the prosecution case regardless of the issues that arise for their determination. In cases of legal or factual complexity, a jury may not be able to return a “true verdict”, consistently with the oaths taken by each juror, without the assistance of addresses and the judge’s instruction on the applicable law.

The High Court identified a further problem in trials such as Dunlop’s where more than twelve jurors are empanelled to allow for attrition during the trial. It deemed Lasry J’s decision to ballot off the extra juror while the jury considered the Prasad direction and then having the extra juror rejoin the jury to be ‘a serious departure from the proper conduct of the trial’, apparently because of the possibility that returning juror might hear what the other twelve discussed in private. The Court made no reference to proposals by the NSW Law Reform Commission to put the process Lasry J improvised on a statutory basis or by the Victorian Law Reform Commission to allow enlarged panels of jurors to deliberate on the verdict.

Yes. I meant the important thing is whether or not the original judgment of Chief Justice King in Prasad remains the law and as far as I’m aware it does. Yes, Your Honour.

Dunlop’s defence called two witnesses, a family violence expert (whose testimony was pre-recorded) and Dunlop herself. After the defence case closed, Lasry told the jury that they would now be addressed in turn by the prosecutor, Nanette Rogers, the defence lawyer, Shane Gardner and then himself; however, he also reminded them that their earlier option to acquit at any time stood. The foreman promptly asked for ‘ten minutes’ and (after a juror was again balloted off) the rest returned twenty-two minutes later with a not guilty verdict. The trial – and Gayle Dunlop’s trials – was over.

But Victorian law means that prosecutors can – and did – ask the Court of Appeal to rule on questions of law after a person is acquitted. And that case could – and did – proceed to the High Court because of the Mason Court’s overruling of the Dixon Court’s ban on the High Court getting involved in such matters, over Brennan J’s lone dissent that allowing the Court’s jurisdiction to be invoked in this way:

enhances the influence of the Executive Government on the development of the law and thus diminishes the characteristic capacity of the courts to give an unprejudiced ruling to determine the rights and liabilities of subjects in controversy with Government. To compromise the courts in the discharge of that role is to diminish the guarantee of a free society. In my opinion, so serious a tampering with a constitutional safeguard is not to be justified by pragmatic considerations favouring the declaration of points of law that have been misunderstood.

(The correctness of the Mason Court’s ruling, and its compatibility with the later doctrine barring courts being given powers that compromise their institutional integrity, was not raised before – or by – the Kiefel Court.) In contrast to Hong Kong’s Court of Appeal in 1987, which upheld the Prasad practice in that country but criticised its particular application in the court below, the High Court (at the DPP’s urging)  made a blanket ruling that the entire practice ‘contrary to law’ while barely considering Lasry J’s own decision.

Having held that jurors do not have a right to acquit at any time but only when invited to do so, the Court’s reasons simply balanced the pros and cons of the practice of giving the such an invitation mid-trial. According to the Court, the cons are many:

In summary, the jury are deprived of the benefit of addresses by counsel and the judge’s summing-up; provisional views about the acceptance of a witness’s evidence may be hard to displace; juries are often keen to register their independence and may react against perceived pressure to acquit; the practice is inherently more dangerous in a complex case or one with multiple accused; the prosecution or defence may not have the opportunity to correct a mistaken understanding of their case; and there is a danger, in a case in which the defence is contemplating not calling evidence, of asking the jury if they want to hear more.

The pros, on the other hand, are few: ‘The saving of time and costs, and restoring the accused to his or her liberty at the earliest opportunity’, which the Court deemed minor in straightforward trials. Accordingly, the Court announced the practice ‘contrary to law’ (at least in jury trials.)

Like the pronouncements of jurors and legislatures, the reasons for blanket rulings by the High Court – ones whose terms don’t allow them to be distinguished in future cases – don’t really matter now.  It certainly doesn’t matter that the Court made no mention of (and may well be wholly unaware of): Dawson J’s and Gleeson CJ’s earlier (uncritical) observations on Prasad invitations; the mid-trial practices of any common law country beyond England and Australia (including the contrary ruling by Hong Kong’s Court of Appeal); the recommendations from two Australian law reform bodes on how to manage oversized jury panels in such contexts; or the seemingly lingering issue of whether and when trial judges acting without a jury can stop a trial early. It is unlikely that any of these matters would have changed the Court’s mind, had the justices been aware of them. Nor does it much matter that the Court made no mention at all of the ‘accusatorial’ nature of Australian criminal justice, a staple of its past decisions, or dwelt on how the abolition of Prasad directions would mean that more accused people will be judged (as Prasad himself was) by a jury after they have just witnessed the accused exercise his right to decline to testify.

But I do think it extraordinary that, in 2019, Australia’s apex court can rule on a trial practice that was applied to the benefit of a victim of extreme domestic violence in a homicide trial without any significant consideration of the impact of its ruling in such trials. If the Court had been interested in doing so, the key facts were all there for the justices to see.

The railing up there, then you can see concrete, that’s what you walk on, but there’s a little bit of concrete that protrudes past that fence on the outside. So when he’s done that I’ve managed to grab onto the concrete and hold on. Thank you Ms Dunlop. That completes your evidence, you can go back to the dock. Thank you. 

The appeal book – the book of materials placed before the justices for their consideration –  contains extracts of the trial that prompted the DPP’s request for the High Court to ban the Prasad direction. It shows how Shane Gardner pointedly told Lex Lasry that he sought a Prasad direction at the ‘instruction’ of his client. It reveals that, after the jury opted to hear more of the case, Gardner immediately told Lasry that his client ‘asked me to raise with you’ her concern about having to testify over two days rather than one given the evidence ‘involves a number of deep sensitivities’ (prompting Lasry to wave the usual trial order and let the defence present their lone expert witness first.) While the appeal book skips nearly all of Gayle Dunlop’s testimony, it includes the very last piece of evidence the jury heard before they acquitted her: Gardner asking her to mark a photograph of the flat she shared with Reid so that the jury could see exactly where she hung from a first-floor balcony after her de facto threw her over the edge.

Had any or all of the Court’s seven justices read this material, I find it hard to believe that they would have described the sole or even main benefits of the Prasad process as ‘saving of time and costs, and restoring the accused to his or her liberty’.  Gayle Dunlop didn’t ask her lawyer to seek a Prasad direction to save the Supreme Court money and I think it unlikely that her concern was to end her 497 day stay in prison a day or two early. Rather, her goal was surely to avoid having to relive the horrors of life with her abusive partner on the witness stand.

Likewise, had the justices contemplated this sequence of events for more than a moment, I doubt that they would have been willing to dismiss jurors who seek to acquit early as disregarding their oaths by acting ‘without the assistance of addresses and the judge’s instruction on the applicable law.’ Rather, it is clear that the jury, having heard Dunlop’s testimony, were strongly motivated not to keep her waiting a moment longer to learn her fate. Can anyone doubt that they already knew at that stage that three more speeches from lawyers and a judge would never overcome what they had just heard from her mouth.

Speculation aside, what we know for sure is that Justice Lex Lasry saw fit to give the jury this option to do so in this particular case, despite his full awareness of the difficulties and even risks of the practice. He would surely be horrified to learn that his compassion and care for a victim of years of abuse would prompt a less careful and compassionate non-trial court to forever bar that option for future Australian judges.

But I am sure that he would have no regrets. Marking Lasry’s retirement last year, John Silvester wrote:

If you want to make Lasry cry, there is a simple way. Put on the iconic Al Pacino speech in Scent of a Woman, the final scene in Dead Poets Society or the climax of 12 Angry Men. “No matter how many times I see [them], they always get me.”

I suspect he also cried a little as he gave Dunlop’s jury his final direction:

Members of the jury, the only thing that remains for me to do now is to thank you for your service. We’ve been together now for over a week and and I’m sure you, if you didn’t already know, I’m sure you now clearly understand what an important responsibility jury service is. So on behalf of the community and in particular on behalf of the court can I thank you for your commitment to the case. It’s not been an easy case for all the reasons that are obvious, I don’t need to recount them. If I may say so, and I say this extremely rarely, in my opinion your verdict was a most appropriate verdict and brings this awful saga obviously to a conclusion.

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: Continue reading

News: The Court and the Conferences

Last week, the High Court spent the better part of four days on a single case, a challenge to Queensland’s ban on political donations by property developers. Such lengthy hearings no doubt impose all manner of burdens on the many judges and lawyers involved — all seven High Court justices and eight of Australia’s nine Solicitors-General (with only the Northern Territory’s Sonia Brownhill absent) together with the challenger’s counsel, Jeremy Kirk, not to mention the various associates, juniors and solicitors tending to each of them. Chief Justice Kiefel repeatedly indicated that ‘the Court would be assisted if it concluded around lunchtime on Friday.’ Her timetable was met, in no small part, because of her statement to Queensland’s Solicitor-General on the case’s third day:

Mr Solicitor, the Court will not require further submissions on whether the basis for or justification for the Queensland legislation is distinguishable from that in McCloy.

Half an hour later, he checked her meaning: ‘I take it your Honours want no submissions — your Honours are not looking for any submissions on the implied freedom at all?’ ‘That is correct’, Kiefel CJ confirmed. The argument that the political donations law breached the Constitution’s free speech rule was over, but the other arguments that the law breached the Constitution’s federalism rules remained.

When the law breaks so slow or so fast, spare a thought for the organisers of Australia’s constitutional law conferences. Continue reading

News: High Court protects Lawyer X’s children

While the nation debates the verdict and sentencing of George Pell – topics that may perhaps reach the High Court one day – the Court itself has been working on a matter that will dominate Victorian news this afternoon: the identity of Lawyer X, the Victorian barrister who spent years speaking to the police about some of her criminal clients. Victoria’s Court of Appeal recently rejected Lawyer X’s last plea for that court to keep her identity secret (or, more precisely, off our TV screens and mainstream newspapers. However, her identity remained protected by an order made by the High Court’s seven justices when they threw out her earlier effort to keep her name from some of the nation’s worst criminals. That temporary order was due to expire on 5 February, but the Court extended it twice, t to 15 February and then to 12 April, without any (publicised) hearing or reasons. However, two days ago, the Court varied the order for (presumably) the last time, again without explanation. At 4.15pm today, she will become the Lawyer Formerly Known as X. (The 12 April date remains in place for the unusual secrecy around her court file and the earlier Court hearings in her case.)

Yesterday saw a further published judgment in the case from Nettle J (the High Court justice assigned to manage the whole case), giving Lawyer X her first court victory. Continue reading

News: Many Australians say they ‘don’t know’ whether or not Australia’s High Court freed OJ Simpson

“[F]ew Australians outside the law schools are likely to be able to name the Chief Justice, let alone the puisne Justices of the High Court”, Justice Virginia Bell said in 2017. And she’s right, according to a survey of roughly 500 Australians performed later that year, now published in the Federal Law Review (open access draft available here.) Between 82 and 92% of the participants (all recruited by a market research company from existing panels) didn’t come within cooee of identifying the occupations of each of the seven current justices, with Kiefel CJ and Nettle J the best known and Edelman J the least, scoring no better than US Supreme Court Chief Justice John Robert, fictional US President Selina Meyer and 1960s Australian Chief Justice Owen Dixon. More Australians could identify the occupation of Judy Sheindlin (TV’s Judge Judy) than any current High Court justice. Several identified both Susan Kiefel and Virginia Bell as New Zealand’s Prime-Minister, Stephen Gageler as Australia’s Treasurer and Geoffrey Nettle as either a Victorian judge (which he once was) or the Governor-General (which he isn’t yet.) On the other hand, one respondent correctly identified Patrick Keane as the AFL’s (then) Media Relations Manager. More Australians thought the High Court had only one female judge than three, but – as in all the survey questions – many more said they just didn’t ‘know’.

The justices’ identities are one thing, but their work is another. Continue reading

News: Honours for Their Honours

26th January 2019 marked not only the anniversary of Captain Cook’s the First Fleet’s settlement invasion of Australia but also the addition of various people to the ‘Order of Australia’, including nineteen new Companions of that Order, a group that now numbers over 500 Australian civilians. As well as singer Olivia Newton-John, tennis player Roy Emerson and children’s author Jennifer Rowe, the latest batch includes two sitting High Court justices:

The Honourable Justice Michelle Marjorie GORDON Parkes ACT 2600 For eminent service to the judiciary, and to the law, to legal education and judicial administration, as a role model, and to the community.

The Honourable Justice Geoffrey Arthur NETTLE Kingston ACT 2604. For eminent service to the judiciary, and to the law, to criminal and civil appeals reform, to legal education, and to professional standards.

Honours for sitting High Court justices are nearly always for ‘services to the law’ – and, since French CJ’s award, ‘for eminent service’ to either ‘the law and the judiciary’ (French CJ & Kiefel, Keane and Gageler JJ) or ‘the judiciary and the law’ (Bell J and, now, Gordon & Nettle JJ.) Justice Gordon is the first High Court justice to be cited as a ‘role model’.

This year marks the first time in three decades that two justices have been honoured in a single year. Continue reading

News: Five new special leave grants bring the yearly total to 35

The High Court granted special leave in five new cases this month, one on the papers and four at Friday’s oral hearings. That brings the total up to 35 grants for the year, the same number as in 2014, and hence equal to the lowest annual number of grants in the past decade.

The five new cases that the Court will hear in (roughly) the first third of next year are: Continue reading

News: The Court reveals a legal scandal

EF’s actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF’s obligations as counsel to her clients and of EF’s duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system

This week, the High Court published its reasons for judgment in AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58, among the first official words on the public record on a shocking Victorian legal scandal. While the central events of the scandal played out from 2005 to 2009, the High Court’s involvement arises from one of its aftermaths, concerning the question of whether the ‘Convicted Persons’ (Tony Mokbel and six of his associates) can be told about the findings of a suppressed 2013 report by Victoria’s anti-corruption commission. The main legal dispute before the Court was between CD (Victoria’s Director of Public Prosecutions), who wanted to tell Mokbel et al what the commission had found as part of its duty of prosecutorial disclosure and AB (the Chief Commissioner of Victoria Police), who didn’t want them told, because of the extreme danger the revelation would pose to both EF (simultaneously a barrister for Mokbel et al and an informer for Victoria Police) and to the future use of informers. In a separate action, EF also sought to stop the DPP from revealing her identity on the ground that doing so would be a breach of confidence. Also in the mix were the Commonwealth DPP (who would also have duties of disclosure to Mokbel and others), Victoria’s human rights commission (intervening to address the role of the state’s rights statute) and an amicus curiae, who was appointed to represent the interests of Mokbel et al (who in theory knew nothing of the proceedings until today.)

Aside from an interlocutory hearing before Nettle J and the announcement of two grants of special leave without an oral hearing, the High Court has revealed absolutely nothing about this case until now. Continue reading

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

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

News: Special leave grants lowest in a decade

This October saw no special leave grants in the High Court of Australia, either on the papers or in last Friday’s oral hearings. The last time this happened in the High Court was nearly a decade ago, in August 2009, but that was surrounded by much more fertile months, including thirteen grants three months previously. By contrast, October’s fallow month follows a previous one with just one grant (in a relatively minor matter involving the statute of limitations applicable to local council applications to collect unpaid rates.) Unsurprisingly, this dry spell leaves the current count of special leave grants, 28, the lowest at this stage of the year in the past decade:

As this graph shows, November and December often add close to ten to that total, making it quite possible that the total grants by the end of 2018 will exceed 2014’s low point of 35 grants. However, it is unlikely that this year’s total will exceed last year’s of 40, itself the second-lowest of the past decade. Although the annual number of grants ebbs and flows, the recent trend is downward: from the mid- to high 40s to the mid- to high 30s.

Importantly, though, these regular hearings and scheduled determinations for considering grants of special leave to appeal (and some removals from lower courts) does not show the full story of the High Court’s case load Continue reading

Johnson v The Queen

The High Court has dismissed an appeal concerning evidence of other misconduct in a historic child sexual abuse prosecution. The accused, aged 58, was convicted of three sexual offences against his younger sister (by two years and ten months): carnal knowledge when the accused was 17 and the complainant was 14; rape when the accused was 28 and the complainant was 25 and a second rape when the accused was 29 and the complainant was 26. At the trial, the prosecution also presented evidence of other sexual incidents, including in a bathtub when the accused was 6 and the complainant was 3; in an implement shed when the accused was 8 and the complainant was 5; in a bedroom when the accused was 9 and the complainant was 6; in a shearing shed when the accused was around 10 and the complainant was around 7; and persistent sexual offending when the accused was aged 18 to 20 and the complainant was aged 15 to 17. The accused was originally convicted of offences in relation to the shearing shed and the persistent sexual offending, but these were quashed by the Full Court of the South Australian Supreme Court on the grounds that the accused was too young to be criminally responsible for the shearing shed incident and the evidence of the persistent sexual offending was too imprecise to support a conviction for that offence. The Full Court nevertheless upheld the accused’s convictions for carnal knowledge and two rapes.

The High Court (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ) unanimously dismissed the accused’s argument that he should be retried on the remaining convictions because the prosecution offered evidence of the other uncharged (or charged, but incapable of sustaining a guilty verdict) incidents. The joint judgment noted (at [17]) that the Court’s recent ruling in Bauer v The Queen means that evidence of uncharged acts involving the complainant and the accused ‘will commonly have very high probative value as circumstantial evidence of the accused’s propensity to act on his or her sexual attraction to the complainant’; however, despite originally asking to use the evidence in this way, the prosecution in this case did not use the evidence for that purpose at the trial. The probative value of such ‘non-propensity’ evidence – to place otherwise inexplicable evidence in context; or to explain the complainant’s or accused’s conduct – ‘lies in its capacity to assist in evaluating the evidence of the offence’, while its prejudicial effect ‘is concerned is the risk that the jury will make some improper use of the evidence’ ([19]). There is seldom such a risk when the evidence is sourced from the complainant, especially where the jury is carefully directed on use ([20]) and there is no logical reason why the length of time since the alleged events will increase this risk ([21]).

The joint judgment held that the evidence offered to support the count of persistent sexual abuse, although inadequate for that purpose, was important to the evaluation of the two counts of rape. Continue reading

Rodi v Western Australia

The High Court has allowed an appeal against a conviction for possessing cannabis with intent to supply. After executing a search warrant at the accused’s home in the Perth suburb of Madeley, police found almost a kilogram of cannabis head material inside the home and three cannabis plants behind the house. The accused’s case was that the cannabis was for personal use and was harvested from two of the three plants. Anticipating that evidence, the prosecution called Detective Sergeant Andrew Coen, who testified that a cannabis plant typically yields 100 to 400 grams of cannabis and that ‘head material’ at the upper range is rare. Following his conviction, the accused appealed, relying on new information that Coen had testified in two earlier trials that cannabis plants typically yield 300 to 600 grams of cannabis head material. After hearing evidence from Coen as to why he had changed his view prior to the accused’s trial, a majority of Western Australia’s Court of Appeal dismissed the appeal.

The High Court (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) unanimously allowed the appeal. The joint judgment held (at [30])  the factors relied on by the Court of Appeal to dismiss the appeal – that the accused bore the onus of proof on the question of intent, and that the accused had not called his own expert testimony, or objected the Coen’s trial testimony, or that the prosecution’s non-disclosure of Coen’s testimony were understandable – were ‘irrelevant to whether there was a significant possibility of a different verdict if the new evidence had been before the jury’. Nothing turns on whether only Coen’s earlier testimony or also Coen’s testimony at trial is treated as fresh evidence ([31]); either way, Coen’s earlier testimony was ‘distinctly apt’ to improve the accused’s prospects of a favourable verdict. Continue reading

News: The High Court’s birthday pinch

A week ago, Associate Justice Verity McWilliam of the ACT Supreme Court pondered a real-life law exam problem:

The plaintiff in these proceedings was born in a leap year, on 29 February 2000. She has been charged with committing certain criminal offences on 28 February 2018, being a common year (or non-leap year). The question on this judicial review application is whether, at the time she allegedly committed those offences, she was 17 and therefore a child at law, or 18 and therefore an adult.

To find that the plaintiff committed her alleged offences when she was (just) a child, McWilliam AJ distinguished not just The Pirates of Penzance but also a High Court judgment. In 1961, a majority of the High Court held that alleged car accident victim Charles John Prowse’s ‘coming… of full age’ occurred at the start of the day before his 21st birthday, citing a strange common law rule. As Dixon CJ explained:

In the anonymous case mentioned in argument in Nichols v. Ramsel the question was in a devise whether the testator was of age or not. The report says “and the evidence was that he was born on the first day of January in the afternoon of that day and died in the morning of the last day of December: and it was held by all the judges that he was of full age; for there shall be no fraction of a day”.

The result was that Prowse, who sued for negligence on the day before his 27th birthday, found his case (just) barred by a six-year statute of limitations that started after his majority.

Justice Windeyer’s judgment in Prowse commenced:

In measuring lapse of time the common law eschews metaphysics. Nevertheless some nice questions have arisen for the courts. In one of the first references to the topic, Dyer’s note of Thomas Somerset’s Case in 1562, it is said “ceo fuit un narrow pinche in le case”. There have been narrow pinches since then.

Continue reading

The Queen v Dennis Bauer (a pseudonym)

The High Court has allowed a Crown appeal against a decision of Victoria’s Court of Appeal that had quashed the defendant’s convictions on 18 counts of sexual offences. When he was first tried in 2014, the defendant was charged with 37 counts against five complainants related to events between 1967 and 1998 and convicted of 33 of those. However, the Court of Appeal quashed those convictions in 2015, criticising the prosecution for overloading the indictment. The defendant then faced a series of separate (and in five instances aborted) trials relating to the three of the complainants and was acquitted in relation to two of them. The High Court appeal concerns the defendant’s 18 convictions a 2016 trial in relation to the third complainant, his foster daughter, for alleged sexual offending between 1988 and 1998, when she was aged between 4 and 15 and the defendant was between 42 and 53.

In 2017, the Court of Appeal quashed the defendant’s convictions for the second time and ordered a new trial, on three broad grounds. First, that the jury should not have been shown a recording of the complainant’s evidence at a previous trial, because her expressed strong preference not to testify was not sufficient to justify such a step. Second, that the jury should not have been told of evidence of uncharged sexual offences by the defendant against the complainant, because such evidence did not satisfy the requirement of ‘significant probative value’. Third, that the jury should not have been told that the complainant described the accused’s offending to a school friend in 1998, as there was no evidence that the events were ‘fresh in her memory’ when she described them and her description was too generic to have any probative value.

The High Court (Kiefel CJ,  Bell, Gageler, Keane, Nettle, Gordon & Edelman JJ) unanimously allowed the Crown’s appeal, rejecting all three grounds of appeal relied upon by the Court of Appeal. Continue reading

News: The Court unites on child sexual abuse prosecutions

In the middle of Wednesday’s criminal appeal decision by the High Court, The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 is the following remarkable paragraph:

[P]revious decisions of this Court have left unclear when and if a complainant’s evidence of uncharged sexual and other acts is admissible as tendency evidence in proof of charged sexual offences. That is due in part to differences of opinion between members of the Court in HML – and in subsequent tendency evidence decisions, most recently IMM – as to the rationale of admissibility of tendency evidence in single complainant sexual offences cases. It is unsatisfactory that trial judges and intermediate courts of appeal should be faced with that problem. It is also unsatisfactory that the issue should continue to be attended by as many complexities as have thus far been thought to surround it. The admissibility of tendency evidence in single complainant sexual offences cases should be as straightforward as possible consistent with the need to ensure that the accused receives a fair trial. With that objective, the Court has resolved to put aside differences of opinion and speak with one voice on the subject.

And speak with one voice the seven justices did, issuing a unanimous joint judgment to resolve all of the many issues raised by the appeal. While unanimous joint judgments have become commonplace in the High Court of late, child sexual abuse appeals have been a notable exception, with narrowly divided decisions on the topic in 2001, 20062008, 2012, 2016 and 2017, the last four with 4-3 splits.

Still more remarkable is that the Court’s new ‘one voice’ is at odds with the voices of five justices from just two years ago, including four current justices. Continue reading

News: A gap in the Court’s revised October list

The High Court has now released its business list for its sitting in the middle two weeks of October.The delayed publication is likely due to the recent vacation of a hearing date for a trust dispute involving Gina Rinehart and the settlement of the constitutional challenge to the Murray/Darling Royal Commission, both cases that had previously been scheduled for hearing during those two weeks. Although there are eight matters listed, in reality there are only three the Court now says it plans to hear:

  • Clubb v Edwards; Preston v Avery are two criminal appeals raising constitutional challenges to laws in the ACT and Victoria creating ‘zones’ around abortion providers that bar some sorts of behaviour. The cases are high profile ones with seven Attorneys-General intervening and four further parties recently given leave to act as friends of the court.
  • Grajewski v DPP (NSW) likewise concerns the law about protesting, but here it is the statutory interpretation issue of whether the action of a person suspending himself from machinery counts as the offence of damaging property.
  • ASIC v Lewski; ASIC v Wooldridge; ASIC v Butler; ASIC v Jaques; ASIC v Clarke are civil penalty proceedings against five directors of a failed aged care and retirement trust concerning whether they breached their duties when they amended the trust’s constitution.

The recent changes mean that one constitutional case has been replaced by another, and Grajewski has replaced Rinehart, leaving the scheduled workload unchanged at three cases. While three matters in a sitting is notably fewer than usual, it does happen occasionally. Indeed, it happened last October, when the Court spent its first sitting week hearing the Citizenship 7 case, and its second hearing two quite short matters.

The scheduling of the coming October sitting is more unusual, however. Continue reading

News: Challenge to Murray/Darling Royal Commission dropped

When he isn’t penning legal advices for the ALP on the possible disqualification from parliament of prospective Prime Ministers, Bret Walker SC is currently in charge of the Murray/Darling Basin Royal Commission. Established by the previous government of South Australia in January this year, this state-based inquiry into a Commonwealth-administered scheme raises some difficult questions about the interaction between state investigations and the federal government. Unsurprisingly, this June saw a directions hearing on the question of whether or not Walker can apply his statutory powers (including powers to search premises, demand documents and jail non-compliant witnesses for contempt) to the Commonwealth and relevant federal entities and officers (and also interstate residents.)

Alas, for those who wanted to see these issues explored, and most likely for the Roysl Commission, the case of Commonwealth v Walker is no longer before the High Court. Continue reading

DL v The Queen (NSW)

The High Court has allowed an appeal involving an appellate court differing with findings of fact made by a sentencing judge. DL was convicted in 2008 of a 2005 murder involving the repeated stabbing of a teenager for no apparent motive. At his sentencing in 2008, the trial judge found that ‘there was much irrationality about what occurred’, that it was not established that DL intended to kill the teen and that he was probably acting under the influence of psychosis. Holding that the offence was less serious than the median range murder and that NSW law provided that 25 years was the standard non-parole period for a mid-range murder, he sentenced DL to a 17 year sentence with a 12 year non-parole period. At his appeal against sentence in 2016, all parties agreed that a subsequent High Court judgment disapproving of this use of standard non-parole periods meant that the Court of Criminal Appeal needed to resentence him, that subsequent sentencing law changes meant that the standard non-parole period no longer applied to him and that the Court’s resentencing could take account of new facts since the sentence. A majority of the Court of Criminal Appeal, observing that all parties had been given an opportunity to be heard on all aspects of the resentencing and finding that DL was not affected by psychosis and did intend to kill, dismissed the appeal, holding that no lesser sentence was warranted.

The joint judgment (Bell, Keane, Nettle, Gordon and Edelman JJ) unanimously allowed the appeal. The joint judgment (at [33]ff) held that the majority’s holding that all parties had been given the opportunity to be heard on resentencing was the result of two ‘misconceptions’: Continue reading

The Queen v Falzon

The High Court has allowed a Crown appeal concerning the prosecution’s use of evidence of large amounts of cash found at the defendant’s premises to support charges of trafficking cannabis. The defendant was charged with possessing and cultivating cannabis for sale at two properties. His defence was that the cannabis was for his personal use or for gifts to others. The prosecution presented evidence of $120,000 in cash hidden at his home address. The jury convicted him of cultivating cannabis for sale at one of the properties and possessing it for sale at another. However, his appeal to Victoria’s Court of Appeal was allowed on the basis that the cash could not be properly used to convict him, because (a) ‘insofar as the evidence of the possession of the cash was admitted on the basis that it was evidence of past trafficking, it was irrelevant and therefore inadmissible’ (VSCA at [146]) and (b) if it is relevant, ‘such probative value must be low, in circumstances where the risk of the misuse of the evidence is undoubtedly high.’ (VSCA at [148]). On further appeal to the High Court, the Court unanimously allowed the Crown’s appeal at the conclusion of the hearing, with reasons to follow.

The joint judgment (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ) reviewed lower court rulings on the use of cash as evidence in drug trafficking prosecutions (at [34]-[39]), commencing with a 1989 ruling by the Northern Territory Court of Appeal. The joint judgment observed that that ruling by an Australian intermediate court was not followed by other Australian intermediate courts and instead it was the dissenting ruling in that case that ‘has ultimately prevailed in subsequent authority’ (at [34]). Turning to the relevance of the cash in the case before it, the the joint judgment held that the trial judge’s and dissenting judge’s rulings that the cash was admissible was ‘plainly correct’ (at [40]). Continue reading

News: Relief and reproach in the High Court

The High Court’s return from its winter break includes a slight, but important, change in the Court’s sitting practice. Each of this week’s main sitting days has commenced at 10am, rather than the usual 10.15am. Chief Justice Kiefel explained the purpose of the early start yesterday:

The parties would be aware in accordance with the new trial practice we will be adjourning at 11.15 for 15 minutes.

While no explanation was given for the mid-morning adjournment, its utility is obvious. Perhaps coincidentally, the change follows an impromptu ‘short adjournment’ of six minutes during a June matter, after the defendant’s counsel, called on to address the court 102 minutes into the morning session, sought ‘the indulgence of the Court of a brief comfort break’.

Otherwise, however, yesterday’s Court was not in a generous mood.  Continue reading

News: The Court of Disputed Returns Returns

It seems that the High Court’s extraordinary run of cases on the qualifications of federal MPs has ended at last, with no new referrals in (or likely to be added to) the pipeline. Nevertheless, the very first of this term’s thirteen referrals is now back before the High Court. Yesterday, Kiefel CJ heard an application from Rob Culleton to reopen his referral (which led to his disqualification) on the basis that the Senate lacked quorum when it sent his election to the Court of Disputed Returns. The relevant Hansard reads:

I just raise—and I may be out of order—that I spoke to Senator Culleton a few minutes ago and he indicated to me in very broad terms that he was looking at seeking leave to move an amendment. I wonder, out of fairness to him, if that is what he is still intending to do, whether we ought to draw attention to the state of the chamber. I just do not want to be seen as being unfair to Senator Culleton. I want to be fair to the man.
The PRESIDENT: Thank you, Senator Xenophon. You have drawn to my attention that he chamber may not be quorate, so we shall bring the bells. (Quorum formed)

(As it happens, both parties to this conversation, Senators Xenophon and Parry, were later the subject of their own referrals!) Apparently, parliamentary video shows that there were fewer than the required 19 senators present when the chamber voted to refer his position to the Court of Disputed Returns, some three minutes later.

So, what should the High Court do? Continue reading

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

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

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

News: Eight special leave grants, but two are a secret

In Friday’s oral hearings, the High Court granted leave in four matters in Sydney (and none in Melbourne), but that is only the half of it. A week earlier, the Court also granted leave in four matters on the papers. Two are immigration matters (concerning anonymised applicants, as usual) while the others are… well, who knows?:

12. AB v CD & Ors (M183/2017)

13. EF (a pseudonym) v CD (a pseudonym) & Ors (M185/2017)

The published registry list does not name the lower court judgments that are under appeal. We don’t know who any of the parties are (though we know that at least CD and EF aren’t their real names.) We don’t know what either matter is about. We don’t know what the issues are. We don’t know why they’re secret. We don’t know if the two cases raise the same or different issues. As usual (for matters dealt with on the papers), we don’t know why they were granted leave. The brief special leave transcripts disclose a smidgen more in their titles, revealing that AB and EF are respectively parties for the actions they aren’t named in, and that the federal Director of Public Prosecutions and Victoria’s human rights commission are parties in both. And maybe (or maybe not) there’s a connection to a High Court transcript from late last year of a directions hearing before Nettle J between all the same parties, where ‘AB ‘was represented by Victoria’s government solicitor, ‘CD’ (the first respondent in both matters) was represented by Victoria’s solicitor for public prosecutions and ‘EF’ was represented by a commercial law firm.

All will eventually be revealed. Or will it? The same day it granted leave to those two cases, the Court held a final hearing in a matter (also from Victoria, Australia’s suppression order capital) involving four pseudonymous people facing federal prosecution for charges that are secret. At least in that case, we can read the judgment below and the parties’ submissions so that we know what the general issues are. Perhaps something similar will happen with the mysterious dispute between AB, CD, EF and co. But, for now, I can only summarise three-quarters of the matters where Australia’s apex court granted leave this month. Sometime later this year, the Court will hear appeals from the following six, published decisions: Continue reading

News: The cost of the High Court

Yesterday’s decision by the High Court (sitting as the Court of Disputed Returns) in Re Gallagher means that there will have to be a recount of Territorians’ votes in the 2016 federal election to determine a new (hopefully eligible) Senator. Such recounts are relatively cheap things, as they are done electronically. The same is not true for the four by-elections that the decision’s reasoning indirectly prompted after four lower house MPs resigned. By-elections cost around $2M each. Together with the three other by-elections prompted to date and the $11.6M identified as post-budget  ‘legal expenses – constitutional matters’  December’s mid-year statement, the cost to taxpayers of the dual citizenship issue so far as roughly $26M. These costs can’t, of course, be attributed to the High Court – the mere umpire in these matters.

But Tuesday’s annual budget – somewhat overshadowed by yesterday’s decision and its aftermath – reveals more about how much the High Court costs taxpayers. Continue reading

Collins v The Queen

The High Court has allowed an appeal by a man convicted of four counts of sexual offences, including rape, alleged to have been committed in January 2000. The complainant, then aged 19, answered a newspaper ad for a nanny to accompany the accused, then aged 61, his partner and child on a sailing trip, After an initial interview, the complainant returned for a further interview a week later. According to the complainant, at around 11pm on the yacht, she had a shower and was then shaved and raped by the accused. The prosecution case included comments she made the next morning to a friend and her mother the next morning, and the results of a police search warrant on the yacht two weeks later that found a razor with her DNA on it. At the trial, the accused formally admitted that he and the complainant had had sex on the yacht that evening.

At the trial in 2014, the complainant’s mother testified that, on the morning after the alleged rape, the complainant ‘phoned me to tell me that she had been raped’. In cross-examination, she was given a transcript of evidence that she she gave at the accused’s committal in 2007, where she had said that the complainant had told her that morning that ‘I think I have been raped’ and that ‘I had some wine and I felt funny and I don’t remember every – anything after a certain time’. Asked if she agreed that she gave that evidence, she said that she did. This part of the cross-examination concluded:

When you gave evidence back on the 21st of September 2007, was better than it is now? Yes. I would say so, yes.
And when you gave that evidence, that was the best recollection you could give to the court of what she said to you? Yes. I would say so, yes.

The trial judge directed the jury on this exchange as follows:

That inconsistency between what the mother told the committal court seven years ago and what she told today, depending upon your view of it, impacts, potentially upon the mother’s credibility and reliability. But what the mother said to the committal court seven years ago is not evidence of the fact that the complainant said those things to her. It’s not evidence of the truth of the contents of the statement if you can follow that logic. It impacts upon the particular witness’s credibility who’s giving the evidence.

On appeal, the Queensland Court of Appeal accepted that the trial judge’s direction was incorrect, but dismissed the appeal on the ground that the misdirection caused no substantial miscarriage of justice to the accused.

The High Court (Kiefel CJ & Bell, Keane & Gordon JJ, Edelman J concurring) first considered whether or not the trial judge misdirected the jury. Continue reading

News: Agreement in the High Court

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Last week, the High Court published two unanimous judgments and announced a third, bringing its total of unanimous decisions so far this year to 15, out of 17 to date. At this early stage, the Court is tracking ahead of its past rates of unanimous assent in orders.* On my count of the last five years (since Gummow and Heydon JJ left the bench and Gageler and Keane JJ joined), the Court’s judges unanimously asesnted to the court’s orders in 75% (2013), 76% (2014), 81% (2015), 76% (2016) and 67% (2017) of three-or-more judge cases.This average unanimity rate of 76% over the past five years is – according to data compiled and generously supplied to me by regular blog commenter Matan Goldblatt – well ahead of earlier multi-year periods where unanimous orders made up 67% (2007-2012),  54% (2003-2007) and 61% (1998-2003) of High Court decisions. The backdrop (and possible explanation) of the current institutional unanimity rate is each judge’s personal rate of assenting to the Court’s order. From 2013, my count of those rates is: French CJ: 95.5%; Hayne J: 91.9%; Crennan J: 94.8%; Kiefel J/CJ: 97.7%; Bell J: 96.7%; Gageler J: 87.0%; Keane J: 97.1%; Nettle J: 91.1%; Gordon J: 90.0%; and Edelman J: 88.9%.

These figures show that the current court is characterised, not just by its lack of ‘Great Dissenters’ – Gageler J’s outlier of 87% is barely comparable to the likes of Kirby J (around 60%, dropping to 52% in 2006) and Heydon J (55% in his final year) – but perhaps especially by its run of ‘Great Assenters’ Continue reading

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: Continue reading

News: High Court’s Nauru jurisdiction silently disappears

Nearly four weeks ago, on Tuesday 13th March, the High Court’s jurisdiction apparently shrank. We know this because the media has reported that the High Court registry informed parties to a criminal matter in Nauru (which had previously reached the High Court last October) that:

The agreement between Australia and Nauru that gave the High Court of Australia jurisdiction was terminated as at 13/3/18.

The agreement in question is a treaty between the governments of Australia and Nauru signed in 1976, around six years after Nauru’s independence from Australia. Article 1  of the treaty states that ‘appeals are to lie to the High Court of Australia from the Supreme Court of Nauru’ in some cases. Article 6.1 provides that ‘this Agreement shall continue in force until the expiration of the ninetieth day after the day on which either Government has given to the other Government notice in writing of its desire to terminate this Agreement’. So, presumably, one government gave the other notice on or about Wednesday 13th December 2017, which happens to be the date of the High Court’s most recent judgment on Nauru law (ruling that Nauru’s immigration authorities denied procedural fairness to an asylum seeker transferred to Nauru in 2013.) Continue reading

Drug Law is Bad, M’Kay?: Kalbasi v Western Australia

So, first of all, smokin’s bad. You shouldn’t smoke. And uh, alcohol is bad, you shouldn’t drink alcohol. And as for drugs, well, drugs are bad, you shouldn’t do drugs. M’kay, that about wraps up my introduction, now are there any questions? Yes, Stan?

The many problems of drugs — and of the ‘war on drugs’ — are well known. This post concerns a less discussed drug problem: the criminal law of drugs. No-one has adequately solved the legal puzzle of how to prohibit the market in bags of powder — in particular, how to reliably and fairly connect identifiable people to those bags of powder,

The criminal law of drugs is bad. Even the simplest drug situations routinely raise vast problems for police, lawyers and judges. The common scenario of someone flying into an airport with a suitcase lined with drugs prompted Australia’s most important — and its most difficult — High Court case on the criminal law. A person’s criminal responsibility (or lack of responsibility) for what is in her luggage continues to be fine-tuned three decades later, including in two High Court cases last year.

Last month, the High Court’s judges split four to three on another, recurrent drug law puzzle: proving who is responsible for drugs sent unaccompanied in the mail. The complex appeal in Kalbasi v Western Australia [2018] HCA 7 is an object lesson, not only in how very difficult it is for police to net the biggest players, but also how Australian courts can punish someone for being a Mr Big without ever affording him a fair trial before a jury.
Continue reading

News: Three special leave grants, two on papers, one oral

This morning, the High Court ended Eddie Obeid’s formal challenge to his conviction for misconduct in public office, refusing the former MP special leave to appeal to the nation’s apex court. He wasn’t alone in being disappointed. There were just six matters listed for oral hearing today (compared to thirteen a month ago) and only one application was granted) compared to six a month ago. On the other hand, the Court had already granted special leave in two matters on the papers this Wednesday, albeit out of around fifty dealt with without a hearing.)

The three cases where the Court will hear appeals some time this year are: Continue reading

Craig v The Queen

The High Court has unanimously dismissed appeal against a decision of the Queensland Court of Appeal on a defendant’s decision not to testify in the context of a domestic violence murder conviction. Although he told his solicitors that the killing was an accident that occurred after the victim attacked him, his defence at trial instead relied on his police interview that described the killing as a deliberate attack that occurred in the heat of the moment. The defendant’s reasons for not testifying were evidenced in the following signed instructions he gave to his solicitor before the trial:

I am not relying on self defence or provocation as defence for tactical or legal reasons. Firstly, I did not raise these defences in my interview to police and secondly it would require me to give further evidence if such defences were to be raised. I have already given my preliminary view that I do not wish to give evidence as I do not want to be cross-examined about my previous criminal history.

On appeal, the defendant’s trial counsel explained that the advice was based on a number of contingencies that might arise during the defendant’s testimony – imputations against the police or the victim, assertions of his good character or the substance of his defence that the killing was an accident – which might allow the introduction of his earlier conviction for a home invasion where a person was fatally stabbed, but admitted that he had not told the defendant that the trial judge would have to give leave for that to occur. The QCA held that the trial counsel’s advice was incorrect, but dismissed the defendant’s appeal because the decision not to testify was a sound, forensic decision where the wrong advice was merely ‘an additional, but inaccurately expressed, reason’.

A unanimous High Court consisting of all seven judges rejected the defendant’s argument that he could not be held to a forensic decision that was informed by incorrect legal advice. Continue reading

Kalbasi v Western Australia

The High Court dismissed, by majority, an appeal against a decision of the Western Australian Court of Appeal on a conviction and sentencing for drug importation. The appellant was convicted for attempted possession of 5kg of methylamphetamine with intent to sell or supply them to another, after police intercepted the drug shipment in two tool cases, substituted salt for the drugs, and then surveilled a Perth man take the cases home and unpack them in front of the appellant. The trial judge directed:

I’m now going to deal with the fourth element upon the jury aid, that the accused intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.

The WASCA dismissed the appeal, holding that, although this direction was incorrect (as a statutory presumption of intent to sell or supply did not apply to the offence of attempted possession), the so-called ‘proviso’ to Western Australia’s criminal appeal statute (that the Court ‘may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred’) applied.

The High Court formed a bench of seven judges to address the meaning of its 2005 precedent on the ‘proviso’, Weiss v The Queen, which held:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

The appellant argued that the WASCA’s approach that regards the ‘negative proposition’ as determining the application of the proviso unless there was a ‘fundamental’ error of ‘process’ either ‘misapplies the principles explained in Weiss or, if it does not, Weiss should be qualified or overruled.’ The Court unanimously declined to overrule Weiss, but divided on whether the ruling was correctly applied in this case. Continue reading

Irwin v The Queen

The High Court unanimously dismissed an appeal against a decision of the Queensland Court of Appeal on the defence of accident to a grievous bodily harm conviction. The appellant and his former business partner fell out over business dealings and an adultery claim, leading to a fight in a Gold Coast shopping mall. The jury convicted the appellant of grievous bodily harm for breaking the victim’s hip after shoving him over, but acquitted him of another charge that he kicked the victim while he was on the ground. The defence of accident in s23 of Queensland’s Crimninal Code states (emphasis added):

(1) Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for—

(b) an event that— (i) the person does not intend or foresee as a possible consequence; and (ii) an ordinary person would not reasonably foresee as a possible consequence.
Example: Parliament, in amending subsection (1) (b) by the Criminal Code and Other Legislation Amendment Act 2011 , did not intend to change the circumstances in which a person is criminally responsible.
(1A) However, under subsection (1) (b), the person is not excused from criminal responsibility for death or grievous bodily harm that results to a victim because of a defect, weakness, or abnormality.

The QCA rejected the appellant’s claim that the hip fracture fell within s23(1)(b) in the following terms (emphasis added):

A jury may well have considered that an ordinary person in the position of the appellant could not have reasonably foreseen the complainant would in those circumstances suffer a fractured hip. That, it seems, was the trial judge’s view. But that is not the test for this Court. It was equally open to the jury on the evidence to reach the contrary conclusion, that an ordinary person in the position of the appellant could have foreseen that the complainant might suffer a serious injury such as a fractured hip from such a forceful push. The resolution of the issue was a matter for the jury. They had the advantage of seeing the height and build of the 55 year old complainant and appellant. Assuming they were of average build and height, the appellant’s push of the complainant, necessarily on the medical evidence forceful, on a slight downward sloped tiled ramp, could foreseeably result in the complainant falling badly and seriously injuring himself, even breaking his hip. Such a result was not theoretical or remote.

After reviewing the whole of the evidence, I am satisfied that the jury verdict of guilty of grievous bodily harm was not unreasonable and against the weight of the evidence. It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. It follows that I would dismiss the appeal against conviction.

The High Court (Kiefel CJ, Bell, Gageler, Nettle & Gordon JJ) held (at [44]) that s23(1)(b)’s reference to ‘would’ ‘involves a degree of probability, albeit that it need not be more likely than not, whereas’ the QCA’s referrence to ‘could’ ‘is a matter more akin to mere possibility’ and hence was ‘prone to lead to error in the application of s 23(1)(b)(ii)’ and ‘the practice should not be repeated’.However, the Court noted (at [45]) that the trial judge directed the jury in the correct terms and ‘there is no reason to doubt that the jury adhered to those directions, or cause to doubt the reasonableness of the verdict on that basis.’

The Court then turned to the particular reasoning of the QCA, Continue reading

News: Secret men’s evidence in the High Court

At the start of Friday’s hearing of an application for leave to appeal Australia’s first contested determination of compensation for loss of native title, Nettle J made it clear that he and Gordon J saw the topic as clearly deserving attention from the High Court:

Ladies and gentlemen, our present inclination, which is plainly tentative, is to think that the matter raises questions of principles of general importance which would warrant the grant of special leave.

Not only did Western Australia’s Solicitor-General Peter Quinlan fail to convince the Court that the case was a poor one for testing those principles (because the Northern Territory didn’t rely on a statutory rule limiting compensation), but he seemingly opened up a major new issue for the Court to consider: whether extinguishing native title is a deprivation of property for the purposes of the Constitution’s requirement of just terms compensation. The Commonwealth’s counsel Stephen Lloyd cited that issue (which he said would likely attract interventions from every state and territory) as well as the twenty regular appeal grounds now before the Court as reasons why the usual limit of twenty pages per party for submissions on appeal should be lifted to eighty or more, and why the full court hearing would take some four or five days. Calling the latter estimate ‘a little alarming’, Nettle J raised the page limit to fifty and told the parties to find a way to limit the hearing to three days.

Buried in the transcript is a further, relatively minor, but quite unusual issue the High Court will now encounter. Lloyd drew the Court’s attention to:

some secret men’s evidence that was confidential before Justice Mansfield. Different orders were made in relation to that to go to the Full Court which only allowed female judicial officers to see it – no other females have been allowed to see it so, no other court staff or the like.

Continue reading

News: Court may lose Nauru appellate role

Last Wednesday, the High Court conducted an unusual sitting, where two ‘full court’ (two or more judge) benches heard final appeals simultaneously in separate Canberra courtrooms. This joint sitting is the product of two oddities: first, the High Court’s rare role hearing appeals from a single judge court, the Supreme Court of Nauru (allowing the Court to sit unusual three judge benches); and second, a recent uptick in such appeals. However, these may be amongst the last such sittings. Three weeks ago, at Nauru’s 50th anniversary of its independence in 1968, Nauru’s President Baron Waqa reportedly told the national parliament of a plan to terminate the High Court’s role:

Severance of ties to Australia’s highest court is a logical step towards full nationhood and an expression of confidence in Nauru’s ability to determine its own destiny.

Continue reading

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union

The High Court has remitted a proceeding concerning a civil breach of federal industrial relations law to the Full Court of the Federal Court of Australia to consider whether to order an individual defendant to pay the penalty personally. The defendants, a building industry union and an employee of that union, admitted to breaching s346 of the Fair Work Act 2009, which prohibits coercing someone into taking industrial activity, by organising a blockade of cement supplies to a government building site in order to put pressure on the builders to hire a representative of the union. In proceedings brought by the predecessor to the Australian Building and Construction Commission, the Federal Court imposed a civil penalty of $60,000 for the union and $18,000 for the employee. The amount of penalty was not disputed before the High Court.

The issue that went to the High Court was the ‘non-indemnification’ order that accompanied the civil penalty on the employee. Continue reading

News: Major commercial implications in latest leave grants

After rejecting twentyseven special leave applications on the papers in recent weeks, the High Court granted over half of the applications in today’s oral hearings. Several of the cases raise major points of principle with significant commercial implications: compensation for loss of life, arrangements for near bankrupt companies, compensation for native title and the tax valuation of mining companies. In some instances at least, these are balanced by human elements. Notably, in one sad matter – involving the question of compensation for a shortened life expectancy – the transcript reveals that the defendant volunteered to pay the plaintiff’s High Court costs (on both appeal and cross-appeal) and that that the High Court offered to hear the matter speedily this April in light of the plaintiff’s deteriorating condition.

The six new matters that will proceed to the High Court’s appellate jurisdiction are: Continue reading

News: State of play in the Court of Disputed Returns

The High Court entered its summer holiday having fully resolved nine matters in the Court of Disputed Returns concerning the 2016 federal election in four full court judgments, one each concerning one of the five disqualifications for federal MPs set out in s44 of the Constitution:

Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Re Canavan resolved seven challenges under ground (i) (dual citizenship), Re Culleton No 2 a challenge under ground (ii) (criminality), Re Nash No 2 a follow-up challenge to one of the successors of one of the Citizenship 7 under ground (iv) (office of profit under the Crown) and Re Day No 2, a challenge under ground (v) (pecuniary interest.) (Ground (iii) on bankruptcy has only been considered once by the High Court, three decades ago.)

However, the Court began this year with six more election challenges on its books. While no major judgments have since been published, there has been a lot of activity and plenty of diversions in these matters in recent weeks. So, where are they now? Continue reading

Commissioner of the Australian Federal Police v Hart; Commonwealth of Australia v Yak 3 Investments Pty Ltd; Commonwealth of Australia v Flying Fighters Pty Ltd

The High Court has allowed an appeal against a decision of the Court of Appeal of Queensland on the meaning and application of federal proceeds of crime legislation. The proceeds of crime proceedings follow a successful criminal prosecution of Steven Irvine Hart, the respondent in the one of the three High Court appeals, for his involvement in tax minimisation schemes. During that prosecution, the Commonwealth Director of Public Prosecutions obtained a restraining order on property under Hart’s ‘effective control’. When Hart was convicted in 2006, the restrained property became subject to automatic forfeiture under s 92 of the Proceeds of Crimes Act 2002 (Cth). The present proceedings involve two subsequent actions: first, an action by companies against the Commonwealth under s 102 of the Act claiming an interest in some of the forfeited properties (respondents in two of the three High Court Appeals) for their interests (or an equivalent value) to be transferred to them; second, an action by the Commonwealth DPP under s 141 of the Act seeking a declaration that any property the companies recover in this way be made available to pay any pecuniary penalty Hart was liable to pay. The companies generally succeeded in both actions at the trial in Queensland’s District Court in 2013 and following the Commonwealth’s appeal to Queensland’s Court of Appeal, with the Commonwealth ordered to pay the companies the value of their interests and denied the ability to use that money to pay a nearly $15M pecuniary penalty that Hart was ordered to pay to the Commonwealth in 2010.

The High Court (Kiefel CJ, Bell, Gageler and Edelman JJ, and Gordon J) unanimously allowed the Commonwealth’s appeal against the orders to pay the companies, but dismissed the Commonwealth’s appeal against the refusal to allow it to use the interests the company’s retained to pay off Hart’s pecuniary penalty. Justice Gordon’s judgment sets out the facts, background and orders. The plurality agreed with Gordon J (at [2]) on the facts, the orders and the dismissal of the Commonwealth’s appeal relating to offsetting the pecuniary penalty, but provided alternative reasons for allowing the Commonwealth’s appeal relating to order to restore the companies’ interests. Continue reading

News: Court may no longer expedite MP eligibility referrals

Last Friday, Kiefel CJ kicked off the High Court’s public work for 2018 with a directions hearing on the latest two referrals of MPs who were or are possible dual citizens. As occurred previously with Senator Malcolm Roberts, it is clear that both of these references will require first resolving factual (in addition to legal) disputes, including disputes about the meaning of overseas (UK) law. However, when the Commonwealth Solicitor-General told the Chief Justice that both London experts in Senator Katy Gallagher’s referral were available to appear by video link on Monday 29 January, she responded:

Mr Solicitor, I do not suppose the experts have been asked to consider the availability of dates further down the track, so to speak, in advance? I say that for this reason. The Court is of course aware of the need to determine these matters as soon as possible but there is a limit to its ability and its preparedness to do so in relation to these references when they keep coming in and to treat every matter, every reference, as one of extreme urgency.

Ruling out scheduling a hearing ahead of the Court’s coming February sitting weeks, she suggested a date in the second of those weeks, noting that the Court will then be dealing with smaller bench matters (presumably a bundle of appeals from Nauru.) However, it is not clear that her proposed timing will work Continue reading

News: The High Court’s summer homework

A month or so after the last federal election, the judges of the High Court decided that the High Court’s ‘summer recess begins on Saturday 16 December 2017.’ A year later, the current judges settled on ‘Monday 5 February 2018’ as the Court’s first sitting day for next year. The dates in between are the summer holiday for the High Court (and its bar), a tradition not limited to Australia’s apex court. US Chief Justice John Roberts, in his previous role as a counsel in the Reagan Government, criticised the Court he would later lead for sitting too few weeks to handle its workload, writing ”it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off’ and semi-joking: ‘we know that the Constitution is safe for the summer’.

It turns out that the Australian Constitution is not so safe for this coming summer. Continue reading

News: 3 new cases in the Court’s non-s44 docket

As the High Court presumably braces for its next ‘job lot‘ of s. 44 cases, it has also added a relatively small number of new cases to its regular docket. While all special leave applications heard on the papers were rejected this month, the Court granted leave in Friday’s twin oral hearings in three matters. One grant is a rare (and welcome) instance of the High Court intervening in a criminal proceeding that has not yet gone to trial, in this case a very long running prosecution of four defendants on federal charges. The fact that the trial is yet to occur may (or may not) explain why the four are only referred to by pseudonyms and that the charges in question are not identified.

The three cases that will now be appealed to the High Court are: Continue reading

News: The High Court dismisses a runner-up Senator

This Wednesday at 10.05AM, Australians at last saw an end to the marriage law survey, the indirect product of the High Court’s 2013 decision declaring the ACT’s Marriage Equality Bill inoperative and the High Court’s September decision upholding the government’s instruction to the Australian Bureau of Statistics to perform the survey. Marriage equality is now exclusively a matter for the politicians Australians elected in 2016. But, as a decision from the High Court five hours later makes clear, the 2016 election is still ongoing and doesn’t look like ending any time soon. This time the High Court held that nominee Hollie Hughes was ineligible to be declared elected, because she took a position in the Administrative Appeals Tribunals (an ‘office of profit under the Crown’) during the 15 months that ineligible dual citizen Fiona Nash purported to take her spot in the Senate. This especially startling instance of the Court’s ‘brutal literalism‘ (when it comes to s44) will undoubtedly lead to more questioning of whether some of the people currently sitting in Parliament were actually elected.

The requirements of s44 are challenging, not just to MPs and nominees, but also to the media, which faces the difficulty of reporting on its content and the various processes for testing it. On Wednesday, the media were not assisted by the Chief Justice, Continue reading

The Mikado in the Constitution: Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45

Mikado. Ha! ha! ha! I forget the punishment for compassing the death of the Heir Apparent.

Ko-Ko, Pooh-Bah & Pitti-Sing. Punishment.

Mikado. Yes. Something lingering, with boiling oil in it, I fancy. Something of that sort. I think boiling oil occurs in it, but I’m not sure. I know it’s something humorous, but lingering, with either boiling oil or melted lead. Come, come, don’t fret — I’m not a bit angry.

Ko-Ko. If your Majesty will accept our assurance, we had no idea—

Mikado. Of course —

Pitti-Sing. I knew nothing about it.

Pooh-Bah. I wasn’t there.

Mikado. That’s the pathetic part of it. Unfortunately, the fool of an Act says “compassing the death of the Heir Apparent.” There’s not a word about a mistake —

Gilbert & Sullivan’s Mikado is a staple of both amateur theatres and Australian criminal law classes. Law lecturers routinely quote it (or, in some unlucky classes, sing it) to students because it illustrates a common problem in statutes: drafters’ penchant to ignore people’s minds when they devise rules of behaviour.

A case in point is s44(i) of Australia’s federal Constitution. Most constitutional provisions are about institutional, not individual, behaviour. But s44(i), which determines when otherwise eligible people are disqualified from Australia’s federal parliament, states:

Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; … shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

This provision duly identifies a situation the drafters wanted to avoid – a person with certain status in a foreign country in a position of (legislative) power in Australia – but says nothing at all about what (if anything) is going on inside the mind of that person.

Ko-Ko, Pitti-Sing & Pooh-Bah. No!

Mikado. Or not knowing —

Ko-Ko. No!

Mikado. Or having no notion —

Pitti-Sing. No!

Mikado. Or not being there —

Pooh-Bah. No!

Mikado. There should be, of course —

Ko-Ko, Pitti-Sing & Pooh-Bah. Yes!

Mikado. But there isn’t.

Ko-Ko, Pitti-Sing & Pooh-Bah. Oh!

Mikado. That’s the slovenly way in which these Acts are always drawn. However, cheer up, it’ll be all right. I’ll have it altered next session.

The central holding of Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 is that s44(i) means exactly what it says and what it doesn’t say:

Section 44(i) does not say that it operates only if the candidate knows of the disqualifying circumstance. It is a substantial departure from the ordinary and natural meaning of the text of the second limb to understand it as commencing: “Any person who: (i) … knows that he or she is a subject or a citizen …”

The High Court unanimously rejected suggestions from the parties to the seven references before it that it read requirements of voluntariness (the Attorney-General’s suggestion), wilfulness (ex-MP Barnaby Joyce’s) or constructive knowledge (the Green ex-Senators’) into s44(i).

So much, so constitutional, you may say. But reading in words (aka ‘implications’) into constitutional provisions is very standard constitutional fare. Implications were the entire basis of the High Court’s decision landmark decision a week before the Citizenship 7 case, striking down some Tasmanian anti-protest laws. As well, given that s44(i)’s accepted purpose is to avoid an MP’s dreaded ‘split allegiance’ between Australia and some other nation, some sort of knowledge requirement (constructive, actual, whatever) of that foreign link would make a lot of sense.

The case for reading in a mental requirement into s44 is especially strong because the provision doubles up as something close to a criminal offence, complete with its own (initial) penalty provision:

46 Penalty for sitting when disqualified Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

As all criminal law students learn, Australian courts routinely read mens rea requirements into criminal offence provisions, applying either general criminal codes (often based on one drafted by Samuel Griffith, one of the Constitution’s drafters) or a detailed system set down by the High Court itself in a 1985 drug offence decision. So, Australian criminal law lecturers use The Mikado to illustrate exactly how criminal offences aren’t interpreted by Australian courts.

The High Court has now unanimously ruled that The Mikado is good law when it comes to s44. Continue reading

News: UK Supreme Court aligns with Australian High Court on criminal dishonesty

The United Kingdom’s Supreme Court is not shy about changing course on major legal issues, such as complicity law and (just last week) state immunity. On Wednesday, it dropped another criminal law bombshell. The case in question was a civil dispute between a champion poker player, Phil Ivey, and a London casino, on whether Ivey was entitled to 7.7 million pounds he seemingly won at Baccarat over two days. The issue was whether Ivey’s method, which included tricking the croupier into turning particular cards around and then making plays by relying on his ability to tell which cards had been turned from the pattern on their back, was cheating. The Court upheld lower court rulings in favour of the casino, surprising those who thought it took the case to hold that Ivey’s (undisputed) belief that his play was an honest ‘advantage’ one meant that he was no cheat . Instead, the Court not only found for the casino, but overturned the 1982 Court of Appeal decision, R v Ghosh, that held that criminal dishonesty requires proof that the defendant knew others would regard his or her actions as dishonest. The Supreme Cuurt’s ruling not only reversed thirty-five years of English theft and fraud law, but also seemingly left Ivey to prosecution for criminal cheating (not that any such prosecution is on the cards.)

While Ghosh‘s many fans in the academy are currently working their way through the five stages of grief, some Australian High Court judges may be feeling quite different emotions. Continue reading

News: Six new High Court cases

At last Friday’s oral special leave hearings, it was easier to ask which cases didn’t get special leave. There were just two and they were both quite interesting – a NSW decision upholding a high-interest short-term loan (now $670K plus $2.4M interest!) even though the lender (correctly) believed that the borrower had fallen for a Nigerian fraud scam; and a Victorian holding that a pregnancy the military failed to detect is not a ‘service injury’ (and therefore is not limited by a statutory military compensation scheme.)

The five new appeals that made the grade were: Continue reading

News: Dispute over submissions to High Court in a sentencing appeal

On 14th June this year, the High Court heard a Crown appeal against an incest sentence, an appeal that turns in part on a practice of Victoria’s Court of Appeal. Since 2007, the Victorian Court has sought submissions and made rulings on the topic of ‘current sentencing practices’ in particular classes of case, simultaneously with but separate from resolving particular sentencing appeals. A year ago, the Court of Appeal ruled that sentencing practices for incest were too low, but also dismissed a Crown appeal about a particular incest sentence. In his written submissions on appeal, Victoria’s Chief Crown Prosecutor said:

It is not apparent that any other State or Territory in Australia struggles with the question of consistency of sentencing in quite the manner experienced in Victoria. It is respectfully submitted that the correct role to be played by “current sentencing practices” should be decided. From what appears above, it might be said that there is not a united position in the Victorian Court of Appeal on the issue.

In the High Court hearing, he used sharper language, describing the Victorian approach as ‘inimical’ and ‘not permissible’. One exchange went like this:

KEANE J: But as I understand it, it seems to be said against you that the Director somehow accepted that there was this limit on the appeal and that the result is essentially something for which the Director is responsible.

MR SILBERT: Your Honour, this has been going on for something like 10 years. The Director has no option, when requested to make these submissions, but to make them. When the court refers to an uplift the Director cannot simply say, “I refuse to be involved in this uplift.” If the Director is lodging an appeal on the basis of manifest inadequacy he has to go along with it or else he has no basis for appealing. So it is a procedure that is imposed by the court and has been for something like 10 years. It has actually never been used by the Director effectively, I do not think, to produce any result in any concrete case.

There are dicta that emanate from various cases where the court considers this uplift and says well, sentencing is inadequate, and they have said it here, but they do not determine the dispute in issue between the parties. There is obiter, as referred to by Justice Ashley in Ashdown, that emanates from these discussions but they are more philosophical discussions than disputes between the Crown and an accused. The Crown is not complicit in the exercise – it did not invent the exercise – and it is dragged kicking and screaming into each one of these contests. I do not know whether that answers your Honour’s question.

KEANE J: It just does seem odd.

On Wednesday, the High Court unanimously upheld the DPP’s appeal, drawing on its recent ruling in Kilic (on the relevance of the maximum sentence) and holding that the decision to uphold a sentence that was based on then current, but wrong, sentencing practices, was ‘an error of principle’. Indeed, the plurality concluded that it ‘might’ be that the Court of Appeal’s practice ‘is inconsistent with [Victoria’s] Sentencing Act’.

The publication of the judgment coincided with the release by News Ltd of letters between Victoria’s then Chief Justice and Victoria’s Director of Public Prosecutions. Continue reading

News: What is happening in the MP eligibility cases?

After a lengthy break for renovations (and rare full court hearings in Sydney and Melbourne), the High Court will return to its Canberra headquarters next month. The first case on the business list for Tuesday 10th October is:

In the matter of questions referred to the Court of Disputed Returns pursuant to section 376 of the Commonwealth Electoral Act 1918 (Cth) concerning Senator Matthew Canavan, Mr Scott Ludlam, Ms Larissa Waters, Senator Malcolm Roberts and the Hon. Barnaby Joyce MP (C11/2017, C12/2017, C13/2017, C14/2017 & C15/2017)

These are five of the seven matters referred to the High Court concerning possible ineligibility under s44(i) of the Constitution, specifically its disqualification of ‘a citizen… of a foreign power’. It is likely that the remaining two matters (concerning Senators Nick Xenaphon and Fiona Nash) will  be heard at the same time. (An eighth pending matter about MP eligibility – Labor’s challenge to David Gillespie over his ownership of a shopping centre company with Australia Post as a tenant – is not yet listed and involves entirely separate issues and processes.)

The seven matters to be heard in October aren’t regular High Court challenges where one person sues someone else. Continue reading

News: Murphy J and the ‘Greek Conspiracy’

Last week, the federal Parliament released a large set of documents from 1986’s ‘Parliamentary Commission of Inquiry’ into the conduct of High Court justice Lionel Murphy, which ended without resolution after the sad news broke of the judge’s imminent death. Justice Murphy’s family have strongly objected to the release, noting that the papers include many wholly unsubstantiated allegations and that there is now no possibility of them being formally investigated; instead, the papers can only contribute to the much more ambiguous judgement of history. None of the allegations relate to Murphy J’s actual work as a High Court judge, but instead are concerned with his alleged activities off the bench (albeit ones that may have led to his resignation or removal from the Court.)

An arguable exception is what is known as ‘Allegation 39‘, Continue reading

News: The High Court returns to Melbourne

The High Court’s current rectification works at its Canberra headquarters are said to be urgent, but foreseen. The Court could not have foreseen that they would coincide with a series of urgent, high profile cases that may determine the future of the present government. This week’s hearing into the legality of the same-sex marriage postal poll takes place in premises that have never before held a major hearing and are ill-suited to housing so many judges and barristers, let alone journalists and interested members of the public. The Court’s current Melbourne home, on Level 17 of the Commonwealth Courts building above Flagstaff Station, has just a single modest sized courtroom designed for special leave applications, and an even more modest lobby. The Federal Court warns its users:

It is anticipated that there will be delays through security screening at Commonwealth Law Courts building in Melbourne over the next few days. This is due to the High Court sitting in Melbourne over September and the expected increase in visitor numbers to the building. Please allow extra time for screening ahead of your court event.

The High Court’s contribution is to permit its hearing to be  ‘broadcast to‘ a second courtroom on Level 8 of the same building, one usually used for Federal Court hearings (and the odd lecture.)

This isn’t a first – the Court has previously had overflow facilities for high profile cases such as the Gerard Baden-Clay appeal in Brisbane. An apparent first is the Court’s permission for live tweeting to occur in the overflow room, presumably because there is no possibility of the arguments being interrupted by a ringing phone. Video and audio recordings, and photographs, remain forbidden.

This week’s hearing is also a significant event in the history of the Court, Continue reading

News: Parties and dates set for dual citizenship hearings

Thursday morning’s directions hearing relating to the possible of ineligibility of sitting federal MPs due to their possible dual citizenship began with a series of ‘determinations‘ by the Kiefel CJ under this section of the Commonwealth Electoral Act:

The Court of Disputed Returns may allow any person who in the opinion of the Court is interested in the determination of any question referred to it under this Part to be heard on the hearing of the reference, or may direct notice of the reference to be served on any person, and any person so allowed to be heard or so directed to be served shall be deemed to be a party to the reference.

Most actions before the High Court have two clear parties, because one of the parties starts the action and names their opponent. By contrast, the present five (and counting) applications are just ‘questions’ referred to the Court of Disputed Returns by parliament, and the Court needs to work out who (if anyone) will actually be making arguments. Hence, the Court itself advertised the references on its webpage and called for submissions from prospective parties. Kiefel CJ then determined who were the lucky (or unlucky) parties for each reference, for example:

In relation to the reference concerning Mr Ludlam, the orders of the Court are: The following persons shall be allowed to be heard on the hearing of the reference and shall be deemed to be the parties to the reference pursuant to section 378 of the Commonwealth Electoral Act 1918 (Cth): (i) Scott Ludlam; and (ii) the Attorney-General of the Commonwealth. Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be heard by the Court. The submissions of Joe Bloggs, Deearne Gould, Ian Bruce Bell, Bret Busby and John Lewis Cameron will not be received by the Court and will not be taken into account on the hearing of the reference.

Senator Scott Ludlam was the first of the five MPs whose dual citizenship became an issue. He has since resigned and, according to the Commonwealth Solicitor-General, isn’t going to argue that he was ever eligible to be a Senator. However, Kiefel CJ said that she wasn’t willing to resolve his position separately from the rest, so he became a (unwilling?) party, as did the Commonwealth Attorney-General (who said he won’t necessarily be arguing either way on Ludlam’s eligibility.) But Kiefel CJ rejected nearly all the remaining hopefuls, including barrister John Cameron (who revealed Ludlam’s dual citizenship) and the ubiquitous ‘Joe Bloggs’ (who made submissions on all five candidates.) The Chief Justice’s detailed reasons for these determinations (if any) have not yet been published.

The remainder of Thursday’s hearing was devoted primarily to setting a date for the hearings, although that was quite complex. Continue reading

News: Four more High Court cases

On Friday’s oral special leave hearings, the High Court added three new cases to its docket, while rejecting leave in a high profile matter, former army reservist, Bernard Gaynor, whose sacking by the ADF over anti-gay and anti-Islam views he posted online will accordingly stand. However, in the week after June’s oral hearings, the High Court granted leave on the papers in a connected set of five disputes concerning the powers of state tribunals, which include an anti-discrimination complaint against Gaynor over his alleged anti-homosexual remarks.

The four matters that can now be appealed to the High Court are: Continue reading

News: High Court OKs a one-person law

On 12th September 1996, a 4-2 majority of the High Court struck down a NSW law that applied to only one person:

Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.

The law allowed a Supreme Court judge to detain Kable (and only Kable) for six months at a time, if the judge thought that Kable was still a danger to the community. Today, nearly twenty-one years later, the High Court unanimously rejected a challenge to a Victorian law that applies to only one person:

In this section a reference to the prisoner Julian Knight is a reference to the Julian Knight who was sentenced by the Supreme Court in November 1988 to life imprisonment for each of 7 counts of murder.

That law forbids Victoria’s parole board from ever releasing Knight (and only Knight, who perpetrated 1987’s Hoddle St Massacre), even if the parole board thinks he is no danger to the community. Kable’s law was struck down because it placed his freedom in the hands of the courts. Knight’s was upheld because it left his freedom in the hands of no-one at all.

When Kable was decided in 1996, some hoped it was the start of judicial scrutiny of laws that sought to impose punitive outcomes by unjust means Continue reading

News: The High Court revisits same-sex marriage

Take a moment to consider the workload of the Commonwealth Solicitor-General, Stephen Donaghue, now seven or so months into his job. On Monday and Tuesday, he argued the Commonwealth’s position before the High Court in Brisbane in a horrendously complex proceeds of crime matter, an appeal from a 1275 paragraph Queensland  judgment. He (presumably) spent last weekend advising the Prime Minister on the potential disqualification of his deputy under s44(i) of the Constitution, advice Turnbull cited in Parliament on Monday. And last Friday, he represented various Commonwealth parties being sued in two actions over the proposed poll on same-sex marriage in a directions hearing before Kiefel CJ. Donaghue’s busy long weekend is one sign of how the recent whirlwind in federal politics will soon descend onto the High Court, which has only just returned from its winter break and is still unable to work in its renovations-affected Canberra home.

The High Court last ruled on an issue of same-sex marriage in 2013, Continue reading

News: The High Court on dual citizen MPs

The recent resignations of Senators Ludlam and Waters mean that the following provision of Australia’s constitution is having a moment:

44 Any person who: (i)  is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power… shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Despite some comments to the contrary, the issue is not one of foreign ‘allegiance’ – no-one seriously thinks the two ex-Senators owed, much less acknowledged, an ‘allegiance, obedience or adherence’ to New Zealand and Canada. Rather, the issue is their foreign citizenship. Both Ludlam and Waters are foreign citizens by birth, despite moving to Australia as very young children and quickly obtaining Australian citizenship. Their resignations have prompted some debate about the appropriateness of s44(i). For instance, it is startling that both Senators could now readily become MPs in the parliaments of their respective birthplaces without relinquishing their Australian citizenship.

While the media discussion of s44(i) has centred around its text and the slim possibility of a referendum, Australia’s High Court has also played a key role in the lead up to this situation. Continue reading

News: Live tweeting the High Court

Two weeks ago, I ‘live tweeted’ a hearing at Victoria’s Court of Appeal, sending out roughly 115 tweets in around an hour (‘storified’ here) of discussions about alleged contempt by three Ministers.  It was my first try at live tweeting and the tweets were well received and distributed – and, it turns out, wrong. At last Friday’s hearing, a court officer told me that the use of mobile phones (or even having them on) is forbidden in Victoria’s Supreme Court When I  asked if that included live tweeting, he told me that if I ‘argued any more’, I’d have to leave. It turns out, though, that there is a rule on live tweeting by ‘members of the public’ set out on the Court’s website:

Accredited journalists may use electronic equipment for the publication of material on the internet (blogging, twittering and similar)…. Non-accredited journalists, free-lance writers, ‘citizen journalists’ and members of the public need to seek permission from the trial judge for the use of electronic equipment in Court.

Alas, this rule is cleverly hidden away. While court visitors who consult the website’s instructions on ‘court etiquette‘ are simply told to ‘turn off all mobile phones and other electronic equipment’, those seeking the process allowing them to live tweet must first click ‘contact us’, then ‘media centre’, then a link that directs ‘members of the media’ to a document titled ‘media policies and practices‘, which has  a heading – ‘journalists using electronic equipment in court’ – where the above discussion is buried in the middle (behind a sign that says ‘beware of the leopard’.) How visitors are meant to seek permission to live tweet appeal proceedings, particularly urgently scheduled ‘mentions’ such as those about contempt, is anyone’s guess.

So, what is the policy on live tweeting High Court proceedings? Continue reading

News: Bell J on ‘The Individual Judge’

UNSW Law Journal has now released the video of Bell J’s keynote speech at the launch of its thematic issue on ‘The Individual Judge.’ Pleasingly, this was certainly no puff piece. Beyond praising the journal’s ‘honoured place’ amongst peer-reviewed law journals and describing the issue as ‘very readable and stimulating’, she didn’t (unless I missed something) have a single good thing to say about any of the papers inside it. Indeed, she strongly criticised several and threw in some critiques of academic writing on the Court’s 2013 Monis decision to boot. Her language was forceful and full of humour, and many of her arguments were persuasive. All of this, in my view, is a powerful example of everything we lose when each High Court judge’s individual voice is submerged in anonymous and depersonalised joint judgments.

Unsurprisingly, Bell J directly addressed the paper by Partovi et al identifying the authors of the Mason Court’s joint judgments, discussed here. She says: Continue reading

News: Sir Keith Aickin’s death, 35 years ago

At 1.25pm on Friday 4th June 1982, Gwyn Reiseger was driving on Coolart Road in Somerville on Victoria’s Mornington Peninsula. Ahead of her, she could see a small green Volkswagen waiting at a stop sign to cross the road. As she slowed down and indicated that she was turning left at the intersection, the driver of the green car slowly drove across Coolart Road. Unfortunately, he didn’t look the other way until too late. Seeing a silver Datsun speeding towards him at 90km/h, he stopped in the middle of the intersection. Reiseger heard a screech of brakes and then saw the Volkswagen spin off the road. Both cars were wrecked. She later told the coroner:

Both drivers were having a conversation when I got there. I told someone to go and ring an ambulance. The driver was still seated in the vehicle and I had a quick look at him and he seemed to be alright. He had a cut on his left calf which was the only injury I observed.

The Datsun driver, navy diver Russell Crawford, was uninjured. After the ambulance left, he asked a tow truck operator who the Volkswagen driver was. He was told that it was Keith Aickin.

Two weeks later, and thirty-five years ago yesterday, the High Court’s Sir Keith Aickin died at Melbourne’s Prince Henry’s Hospital. Continue reading

News: Three private law matters granted special leave

My co-editor Katy Barnett has lately lamented the lack of special leave grants in private law matters. She will be happy about the three grants last Friday. In my view, a particular pleasure of private law matters is how hard-fought they can be over minutiae. An example is one of the three matters granted, which was described as follows in the lower court by the dissenting judge:

This is yet another appeal in what has been a long and bitterly contested series of actions and appeals between Clone Pty Ltd (“Clone”) and Players Pty Ltd (“Players”). There have already been two sets of proceedings that have been the subject of appeals to the Full Court and unsuccessful applications for leave to appeal to the High Court.

For added interest, one side of the dispute – who lost two High Court special leave applications but succeeded in their most recent state appeal – includes three well-known sports stars. Their opponent – a company owned by a wealthy family including a high profile investment banker – obtained leave to appeal the reopening of their victory 11 years ago. Astonishingly, the core dispute is about whether the word ‘NIL’ in a 1994 lease agreement was crossed out with a blue pen, to be resolved by examining four surviving photocopies of the lease because the original was lost. (For a taste of the factual subtleties of that process, see the dissenting judgment at [673]-[694].) And yet, the case raises some very major issues indeed concerning civil discovery, the obligations of civil litigants and the finality of civil rulings.

The three matters where leave have been granted are: Continue reading

News: High Court cases behind today’s contempt hearing

Today’s reported contempt proceedings in the Supreme Court of Victoria do not (yet) involve the High Court. Rather, they concern an ongoing appeal in Victoria’s Court of Appeal by the Commonwealth Director of Public Prosecutions against a ten year sentence imposed on convicted terrorist Sevdet Besim by the Supreme Court. However, the issues are closely tied to several past High Court decisions.

One is a ruling in late 2015 allowing a Cth DPP sentencing appeal in a federal drugs matter, where the High Court unanimously held that:

to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair.

This ruling almost certainly is the background for reported comments by judges hearing the DPP’s appeal that, the case of terror sentences:

Warren CJ: “NSW courts appeared to put less weight on the personal circumstances of the offender than Victorian courts, with greater concern for denouncing the crime and sending a message to others in the community. It’s as if the Murray River is an enormous gap in terms of sentencing.”

Weinberg JA: “The range seems to be in the 20s [years] for offending somewhat similar to this. It is extremely worrying, I would have thought, that there is such a gap.”

Just as in the 2015 case, the difficulty faced by the judges is that Victorian courts consistently gave lower sentences than other states, notably NSW. The High Court has made it clear that Victoria should generally follow the national approach, rather than its own one.

The other High Court rulings in play today are ones concerning the common law offence of scandalizing the court. Continue reading

News: High Court hears appeal in…. Sydney??

This may not seem like news, but it is a first in nearly four decades. While the High Court’s Sydney Registry is often host to hearings of Australia’s apex court, these have long been limited to minor fare: special leave hearings, case management and the like, involving between one and three judges. By contrast, today’s hearings involve the Court’s core business (appeals) and at least five judges, something that last happened in Sydney on 10th and 11th March 1980, when all seven members of the Barwick Court heard a workers compensation dispute.

What changed after that date? The opening of the High Court’s first and only dedicated premises in May 1980 in Canberra. While Sir Garfield wanted that move to mark an end to the Court’s ‘circuits’ of Australian capitals (then administered by its Sydney Registry), a combination of resistance from the other judges (who didn’t want to live in Canberra) and state bars preserved the circuit system, albeit in a more limited form described in the Court’s most recent annual report as follows:

The Court conducts its sittings in Canberra and such other places as are determined by a Rule of Court made by the Justices in the preceding year. In addition, applications for special leave to appeal to the Court are heard regularly in Sydney and Melbourne, and the Court continues the practice, established on its inauguration, of sitting in Brisbane, Adelaide, Perth and Hobart if warranted by the amount of business.

So, what has changed now? Continue reading

News: Who wrote the Mason Court’s joint judgments?

Monday evening was the launch of the latest ‘thematic’ issue of the UNSW Law Journal. This issue’s theme is ‘The Individual Judge’, which is also the title of Kiefel CJ’s 2014 speech and paper, where she first said ‘collegiality is not compromise’. The paper is one of three where she has defended the High Court’s practice of attributing judgments largely written by one judge to all the judges who agreed with it. While there is much of interest in the new issue of the UNSWLJ, only one of the articles responds directly to Kiefel CJ’s stance. The paper by Andisheh Partovi et al sets out five arguments for correctly attributing authorship of judgments: ensuring individual accountability (an argument I also put here), discouraging free riding, and serving the interests of judges, academics and lawyers. More importantly, the authors acted on their views by outing the likely authors of the joint judgments of the High Court from 1987 to 1995, when Sir Anthony Mason was Chief Justice. Needless to say, their list is absolutely fascinating.

So, who, out of the eight judges who sat in that period, likely wrote the most important joint judgments of the Mason Court? Continue reading

News: Upcoming conferences include French court legacy

In two months, Melbourne Law School’s own Centre for Comparative Constitutional Studies will hold its fourth annual conference, this time focussing on:

  • Non-Statutory Executive Power;

  • Proportionality after McCloy;

  • Restrospectivity and the Rule of Law

The first of these topics in particular is associated with the work of the French court, while the second captures a key issue in the transition to the successor Kiefel court. More importantly:

The final session of the Conference provides a retrospective on the High Court under Chief Justice Robert French, with a special focus on Chapter III and the separation of powers.

Unsurprisingly, the day will encompass a host of High Court cases:

The cases to be discussed include: Re Culleton [No 2] (2017); Cunningham v Commonwealth (2016);… Murphy v AEC (2016); Plaintiff M68 (2015); P T Bayan Resources v BCBC Singapore (2016); Rizeq v Western Australia (2016); McCloy v New South Wales (2015); Assistant Commissioner Condon v Pompano Pty Ltd (2013); Wainohu v New South Wales (2011); Momcilovic v The Queen (2011); Kirk v DPP (2010); South Australia v Totani (2010) and International Finance Trust Co Ltd v New South Wales Crime Commission (2009).

Looking further ahead, 2018 will be the first time that the biennial Public Law Conference series (previously held in Cambridge) will be held in Australia, inevitably including a consideration of the French Court’s work. Former High Court judge Ken Hayne is a speaker at both conferences.

The website for the CCCS conference is here, while the one for the Public Law conference is here.

News: Bumper crop of special leave grants includes a sequel

After rejecting all written applications this session, the High Court granted seven applications in Friday’s twin oral hearings in Canberra. The grants include a direct sequel to a 2015 decision by the Court concerning an industrial dispute in Melbourne. As discussed in this post, the incident was a 2013 blockade of concrete trucks in Footscray at a site connected to the Regional Rail Link, seemingly led by Joe Myles, a CFMEU employee. Two years ago, the High Court ruled that the CFMEU, facing contempt proceedings for allegedly breaching an order barring such action, could be required to divulge telephone details that could link it to Myles. The contempt matter has since been settled and the CFMEU and Myles have admitted breaching the Fair Work Act in a parallel proceeding in the Federal Court. The new issue before the High Court concerns an unusual civil penalty that the Federal Court imposed on Joe Myles for his role in the Footscray incident.

The seven matters where leave has been granted this session are: Continue reading

News: High Court overrules 130 year-old criminal law precedent

In a decision this week, Aubrey v The Queen [2017] HCA 18, a 4-1 majority of the High Court overruled an 1888 decision of the Court of Crown Cases Reserved (a predecessor to England’s Court of Appeals), which had held that a man who gave his wife gonorrhoea could not be convicted of ‘inflicting’ harm. Holding that the English decision should not be applied to the case of Michael Aubrey, a NSW man convicted of maliciously inflicting grievous bodily harm by giving his sexual partner HIV in 2004, the majority said:

Granted, until this case, Clarence had not been distinguished or judicially doubted in New South Wales. It was assumed that proof of an offence against s 35 of the Crimes Act necessitated proof of a direct causing of some grievous physical injury with a weapon or blow…  It may also be accepted that the Court is ordinarily loath to overturn a long-standing decision about the meaning of a provision unless there is doubt about it, or to depart from the view of judges who, because of proximity in time to the passage of the legislation in question, were more aware of the reasons underlying the legislation. But that is not this case.

The majority listed nine reasons why Clarence should no longer be followed, including contrary pre-1888 authority, the lack of a single majority view in the case, two forceful dissenting judgments, subsequent discoveries about infection, the subsequent abandonment of the presumption of consent to marital sex and the more recent rejection of Clarence in England’s courts.

Few, other than people in a similar position to Aubrey himself, will mourn the death of Clarence. However, the majority’s approach to overruling that decision is an interesting contrast to the Court’s refusal last year to overturn its own little-loved decisions on complicity Continue reading

News: Forest challenge stumbles into a factual thicket

This week, the full bench of the High Court heard a challenge by ex-politician Bob Brown to Tasmanian laws giving police new powers to protect ‘workplaces’, including part of the Lapoinya forest where a logging operation has been occurring. Apart from its immediate political significance, the case is of enormous legal interest because the Court is being asked to revisit both ‘limbs’ of 1997’s Lange test on the operation of the Constitution’s implied freedom of political communication: what counts as a burden on the freedom (Tasmania argues that the new law cannot impose a burden on people who were, it claimed, already trespassers) and the test for when a law that burdens the freedom is invalid (some of the State parties have asked the Court to rethink the three-step proportionality test adopted by a bare majority of the Court in 2015’s decision on political donations.)

But these political and legal issues have long risked being sidelined by factual concerns. Continue reading

News: Four new criminal cases

The latest round of special leave determinations is notable for the attention the media gave to some refusals of leave. On Wednesday, the Court published a list of thirteen written refusals of leave. One, refusing Victoria’s Attorney-General leave to appeal Attorney-General v Glass (in her capacity as Ombudsman) [2016] VSCA 306  (where the Court of Appeal held that the Ombudsman can investigate a referral from the Legislative Council concerning entitlements) was reported with the headline ‘High Court delivers embarrassing blow to Andrews government‘, including criticism from the shadow Attorney-General of the challenge’s ‘scandalous waste of taxpayer dollars’. The Court’s disposition (published the next day) stated:

The application for special leave to appeal discloses no reason to doubt the correctness of the decision of the Court of Appeal of the Supreme Court of Victoria.

which does, perhaps, qualify as somewhat embarrassing. A second case, refusing leave from Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181, which held that misleading labelling on Nurofen warranted a penalty of $6M (as ‘the bottom of the appropriate range for the contraventions’), was widely reported, including internationally, through Associated Press under the headline ‘Australian court rejects British painkiller firm’s appeal‘. The disposition stated that ‘The decision of the Full Court of the Federal Court is not attended with sufficient doubt to warrant the grant of special leave to appeal’, which is perhaps a little less embarrassing than the disposition of the Ombudsman matter.

The wider significance of special leave determinations has always been hard to parse, as the Court’s reasons are not always about the merits of the appeal or the arguments made by either side and, anyway, they typically only represent the views of two of the Court’s seven judges. However, the Court’s shift to written determinations, while a welcome saving of (amongst others’) ‘taxpayer dollars’, have made it even harder to judge the flavour of any particular determination, because we no longer have access to clues that would appear i a transcript of the oral hearing about the arguments that were made by each side and the particular views of the judges about the merits and other issues. An extreme illustration is a matter granted leave on the papers on Thursday. Commissioner of the Australian Federal Police v Hart & Ors [2016] QCA 215, part of a decade-long saga of proceeds of crime litigation, is 1275 paragraphs (and nearly 130,000 words) long. Justice Morrison’s judgment begins with a 5-page overview detailing the three appeals dealt with (each with notices of contention), the seven common issues, the sixteen appeal grounds, eighteen determinations of general disputes and the eleven outcomes for particular assets – and his judgment turns out to be in dissent on a number of key issues! The High Court granted the Commonwealth leave in each appeal, but we don’t yet know what arguments they raised (and what notices of contention will  be raised.) We may get a hint when the transcript announcing the written determination s published, but otherwise we will have to wait until the next High Court bulletin (for a brief summary) or the parties’ submissions on appeal (for fuller details.)

Having noted these uncertainties, here are summaries of the four cases where leave was granted last week, all criminal and three from Queensland: Continue reading

News: Kiefel J’s last judgment, Kiefel CJ’s first

Yesterday’s two judgments mark the final step of the transition from the French Court to the Kiefel Court. Until this week, judgments published by Susan Kiefel have been attributed to ‘Kiefel J’, even though she has been Kiefel CJ since January 30th. In today’s two decisions, the first, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12, has a joint judgment attributed to ‘Kiefel, Bell & Gordon JJ’, while the second, Kendirjian v Lepore [2017] HCA 13, has a solo judgment attributed to ‘Kiefel CJ’. The obvious explanation of the shift is that ‘Kiefel J’ is used for judgments where Susan Kiefel was still a mere Justice when she sat at the hearing. Ecosse was heard on 14th December last year, at a time when Robert French was still Chief Justice – he had six weeks left in the role – but by then he had not heard any cases for over two months and the Court had already held a ceremony to mark his retirement. By contrast, Kendirjian is the fifth case heard by the High Court since Susan Kiefel became Chief Justice, but the first to be decided.

So, what were the first ever words in a judgment by Kiefel CJ?:

I agree with Edelman J.

Continue reading

News: Kiefel CJ describes and defends her Court’s judicial method [updated]

The new Chief Justice of the High Court, Susan Kiefel, gave the 2017 ‘Supreme Court Oration‘ in Brisbane last week to a sell-out crowd. I dare say it is one of the most significant speeches a sitting Chief Justice has given, outlining in detail the High Court’s current process for producing judgments and responding to some criticisms of that Court’s approaches, including those of former High Court judge Dyson Heydon and current President of the NSW Court of Appeal, Margaret Beazley. The Australian Financial Review covered the speech as favouring ‘productivity over prose‘, and contrasted her approach to one-time law student favourite Lord Denning. The Chief Justice’s line:

I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows.

has the potential to be her version of Dixon CJ’s famous, and much debated, pronouncement: ‘There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.’

The 12-page speech has far too much detail to cover in a short news post. However, one passage, explaining one reason she deprecates unnecessary separate judgments, caught my (and the Australian Financial Review‘s) eye: Continue reading

News: Three grants of leave

Last week’s special leave hearings broke a four-month drought in appeals granted special leave ‘on the papers’. There were three grants of leave announced, one on Wednesday (without a hearing) and one each on Friday’s two oral hearings in Brisbane and Sydney.

The three appeals that will now go to the High Court are:

  • Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106, which concerns the circumstances when a person who a court previously held owed a debt and is now bankrupt can now argue that he didn’t owe the debt. In 2015, the NSW Supreme Court held that the respondent owed just under $10,000,000 [EDITED: see comments] to the applicant after guaranteeing a now bankrupt company’s debts, rejecting his argument that details of the debt were not attached to the papers he signed and that he wasn’t aware of them. After he went bankrupt and the applicant applied to sequester the debt (preserving it from the demands of other creditors), he submitted new financial evidence challenging whether the bankrupt company ever owed anything to the respondent. The Full Court of the Federal Court unanimously held that the trial judge should have opted to inquire into whether any debt was owed, even though the applicant never challenged the amount of the debt in the NSW Supreme Court.
  • Kennedy & Thorne [2016] FamCAFC 189, which examines the enforceability of binding financial agreements (colloquially known as ‘pre-nups’), where one party insists on the agreement as a pre-condition to marriage. The parties to a 2007 marriage differed in assets (none vs $18M),  Australian immigration status (a tourist visa vs Australian citizenship) and English fluency (little vs complete.) A week before they married, they signed an agreement prepared by the richer party’s solicitor, despite the poor party receiving independent legal advice that the agreement was ‘no good’ and (about a further agreement shortly after the marriage) ‘terrible’. Ruling after their 2011 separation and the richer spouse’s death in 2014, the Full Court of the Family Court overturned a trial judge’s finding that the agreement was the result of duress, holding that the trial judge failed to provide adequate reasons for the finding of duress and failed to make a finding of unlawful pressure (as opposed to a mere threat not to marry), instead holding that the agreement was binding on both parties.
  • Shop, Distributive & Allied Employees Association v ALDI Foods Pty Ltd [2016] FCAFC 161, concerns the process for approving a regional enterprise agreement with employees who are presently in a different region. After the majority of seventeen employees of Aldi who were offered roles in a new ‘region’ of the company’s operations (on the NSW/SA border) voted to approve an enterprise agreement and the agreement was approved by the Fair Work Commission, the union (which was not involved in the earlier agreement) challenged the agreement on three grounds. A majority of the Full Court of the Federal Court held that the agreement could not be approved because it failed a statutory requirement that ‘the agreement has been genuinely agreed to by the employees covered by the agreement’ – at the time of the vote, the new region had no employees. The same majority also held that the Commission failed to properly apply the requirement that the employees be ‘better off overall’, relying instead on a clause in the agreement that promised the employees equal (but not better) terms than the award. But the Court unanimously held that it could not invalidate the agreement because of a one-word deviation between the notice given to the employees and the required wording, because, to the extent that the different wording was important – something the three judges differed on –  the Commission’s failure to act on it was not a jurisdictional error.

News: The High Court splits three ways on three-way splits

Today’s decision in Perara-Cathcart v The Queen [2017] HCA 9 reviews a split decision in the Full Court of South Australia’s Supreme Court, which Gageler J’s judgment usefully describes with a table:

This combination raises a long-standing puzzle about the judgments of multi-member courts that have to decide two different issues in a particular case and manage to produce a three-way split. Continue reading

News: Four new criminal law appeals, including Van Beelen case

The Kiefel Court held its first oral special leave hearings on Friday morning. Last week, the Court ruled on several dozen written applications, dismissing them all. According to the High Court’s business list, a further seven matters were ‘TO BE HEARD IN CANBERRA AND BY VIDEO-LINK TO ADELAIDE AND TO SYDNEY’. However, on Thursday, the next day’s court list revealed, for the first time, that there would be two separate hearings at the same time, one in Canberra (hearing three applications, including two from Adelaide via video link) and the remaining four live in Sydney (rather than from Sydney via video link. [EDIT: Corrected. See comment below.]) It seems unlikely that anyone was put out by this late change of plans, but it is also unclear why it was not announced earlier.

The High Court granted leave in four matters, all of which relate to crimes or the criminal law. The four decisions appealed are: Continue reading

Catch-22 in the Court of Disputed Returns: Re Culleton (No 2)

By Jeremy Gans

Re Culleton [No 2] Case Page

‘What did you mean,’ he inquired slowly, ‘when you said we couldn’t punish you?’ ‘When, sir?’ ‘I’m asking the questions. You’re answering them.’

No-one cares about Re Culleton [No 2] [2017] HCA 4. Not Rod Culleton, who is out of the Senate regardless, thanks to his bankruptcy problems. Not political types, because the One Nation candidate’s spot will just be taken by another one. Not anyone else, because no-one much likes the ex-Senator (or never Senator or whatever he is — was? — now) or cares who’s who in One Nation. And, it seems, not the High Court either, which last week phoned in a judgment in the case.

This indifference is a bit of a pity. Re Culleton [No 2] raises lots of issues that have nothing to do with Culleton and a number that have nothing to do with elections — and the High Court’s judgment fluffs several of them. Re Culleton [No 2] is a fine example of much that is wrong with Australia’s apex court these days.

‘I didn’t say you couldn’t punish me, sir.’ ‘When?’ asked the colonel. ‘When what, sir?’ ‘Now you’re asking me questions again.’

Every Australian’s right to be elected to Parliament (and to cast a valid vote for their preferred candidate) is limited by the following text:

44 Any person who:

(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or

(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or

(iii) is an undischarged bankrupt or insolvent; or

(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or

(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

Section 44 of the Constitution is well meant, but has mostly silly effects. Para (i) forces all dual citizens who want to stand for election to first give up their non-Australian citizenship forever. Para (iv) likely forces all public servants (including all teachers) to quit (and not just take leave from) their jobs if they just want to try to become an MP. Para (v) is basically incomprehensible (and might invalidate the election of many investors, depending on how the High Court rules in Re Day [No 2].) Para (iii), the best of a bad bunch, still makes it risky for anyone to combine running a business with being a politician (as both Rod Culleton and Bob Day exemplify.)

And then there’s para (ii), which keeps Parliament free of (some) criminals. While that certainly sounds like a good idea, Australia’s contemporary criminal law is a good deal broader than most people imagine. The drafters of s 44(ii) wanted to ban people convicted of a ‘felony or any infamous crime’, which in 1900 covered the sort of crimes that could see criminals executed or deprived of all of their property. But Samuel Griffiths, realising that criminal law terms can change or lose their meaning over time, suggested a different test: ‘any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Alas, those replacement words – especially ‘offence punishable’ – are now s 44(ii)’s biggest problem.

‘When didn’t you say we couldn’t punish you? Don’t you understand my question?’ ‘No, sir. I don’t understand.’ ‘You’ve just told us that. Now suppose you answer my question.’

We mainly know criminal ‘offences’ by their shorthand labels — murder, rape, theft, etc — but, under Australian law, offences actually consist of a complex (often very broad) definition and a maximum (often very high) penalty. Lots of offences cover an extremely wide range of behaviour, from absolutely trivial to extremely serious. Assault can be anything from an unwanted tap on the shoulder to a kick in the face. Drug possession can be anything from one banned pill to a truck full of contraband. Criminal damage can be anything from putting up a poster to burning down a house. Child pornography can be anything from a sext on your phone to a hard drive’s worth of horror. And so on. We tolerate these broad definitions (and the accompanying vast maximum penalties) because Australia’s criminal justice system is also full of discretion: prosecutors rarely chose to prosecute trivia and, if they do, judges rarely choose to punish it.

But there is no discretion in s 44(ii). If you have ever done anything trivial that happens to fall within the definition of a serious offence, then you can lose your right to stand for election (and your voters will lose their right to elect you) simply through bad timing, even though you never came within cooee of ‘imprisonment’. All it takes is for someone to charge you with an offence that bundles together whatever trivial thing you did with much more serious behaviour that merits a lengthy stay in prison. That is exactly what happened to Rod Culleton. Continue reading

News: ACs in the HCA

This has undoubtedly been a busy week for the High Court’s website manager, with multiple changes to incorporate, including moving Kiefel J to Chief Justice and inserting Edelman J in the current justices list, and removing French CJ from the current justices list – he is now at the end of the Former Chief Justices list. A further change, also visible on the Court’s ‘About the Justices’ page, as to add ‘AC’ to all mentions of Gageler J:

As this image shows, the photo of the seven judges has not yet been updated (though French CJ is blocked by the drop-down menu.) Presumably, the Court is waiting for the first occasion when the seven current judges sit together (probably Thursday’s hearing of Rizeq v Western Australia, concerning the application of the constitutional right to a jury in state prosecutions involving non-state residents.)

Amidst the excitement of Kiefel CJ and Edelman J’s new judicial roles, Gageler J’s entry into the General Division of the Companion of the Order of Australia,  five years after his appointment to the High Court, has received little attention. Continue reading

News: Kiefel CJ’s swearing in by Bell J

The swearing in of Justice Kiefel as the Chief Justice of the High Court of Australia was major news throughout Australia, and rightly so. But, as Professor Adrienne Stone pointed out on twitter, the Australian Financial Review fluffed its reporting:

The photo the Fin used was from Kiefel J’s swearing in as a High Court judge in 2007. On Monday, Kiefel CJ was sworn in by the High Court’s next most senior judge, Bell J, arguably adding to the groundbreaking nature of the event from a gender perspective.

Without letting Fairfax off the hook, I have noticed that there don’t seem to be any photos online of Bell J swearing in Kiefel CJ anywhere. Continue reading

News: Testimony in the High Court

Here’s something you don’t often read in High Court transcripts:

HER HONOUR: Come into the witness box please, Mrs Smith. Do you wish to take an oath or an affirmation?
MRS SMITH: An oath.
DEBRA KIM SMITH, sworn:
HER HONOUR: Have a seat please, Mrs Smith, and pour yourself a glass of water if you would like one.
THE WITNESS: Thank you.

Debra Smith was testifying before Gordon J as part of litigation about the validity of former Senator Bob Day’s election last year. The final case’s hearing will be held in the second week of February before the full High Court (with Susan Kiefel as Chief Justice and James Edelman newly on the bench.) This week’s hearing is a preliminary one to resolve some factual disputes, the result of an order made by French CJ in November:

10. If the parties have been unable to agree by 22 December 2016 a statement of all the facts and documents which are relevant to the reference, the hearing and determination of the facts will be heard by a single Justice at a date to be fixed with a view to a referral to the Full Court thereafter.

The parties agreed on most issues, but not all of them. According to a ruling by Gordon J last week:

Notwithstanding that agreement, Ms McEwen sought, and continues to seek, additional findings of fact. The additional facts are directed to three separate issues: Mr Day’s interest in the lease with the Commonwealth (“Issue 1”), Mr Day’s statement and declaration in nominating for the Senate in 2016 (“Issue 2”) and distortion of the vote (“Issue 3”).

At Monday’s hearing, two witnesses, Debra and her husband John, both acquaintances of Senator Day and his building company, testified on the first issue and were cross-examined by Day’s counsel.

Witness evidence before the High Court, while unusual, is not unprecedented. Continue reading

News: New special leave procedures affect injunction practices

Litigants who win their ‘day in court’ often have to wait until long afterwards to reap the rewards, because of the mere possibility that the decision might be successfully appealed. An example is a dispute between members of Perth’s Mercanti family about the validity of Michael Mercanti’s 2004 appointment of his son Tyrone in his place as appointer of a trust governing proceeds of the family’s shoe repair business. Although Tyrone first won that battle in October 2015 in Western Australia’s Supreme Court, he has been subject to a series of injunctions concerning his exercise of powers under the trust ever since. First, the Supreme initially issued an injunction in 2013, presumably when the action by Michael, his wife, and two other children, commenced. Second, after ruling in Tyrone’s favour, the same court immediately issued an injunction pending Michael’s appeal to the Court of Appeal, which effectively lasted thirteen months until Michael lost the appeal in late November 2016. Third, the Court of Appeal immediately issued a three-week injunction to allow Michael time to consider an application for special leave to the High Court. Fourth, the Court of Appeal issued a second three-week injunction because Michael (apparently for understandable reasons) was not able to act before the High Court shut for Christmas. Fifth (but perhaps not finally), earlier this month, the High Court’s Kiefel J issued a further injunction against Tyrone, with no end date. That final injunction arose, in part, because the appellants thought the Court of Appeal wouldn’t grant a longer injunction and because Tyrone wouldn’t consent to any further extension of the injunction that had governed his actions for three years.

Justice Kiefel, in the High Court’s first judgment of 2017, addressed the issue of who should decide whether to grant an injunction pending a High Court special leave application: the court being appealed from, or the High Court? Continue reading

News: French Court averaged 50 substantive judgments per year

The High Court’s 2015/2016 annual report states (as every annual report has for the past decade) that:

the numbers of Full Court hearings and decisions in 2015–16 were comparable with averages for both during the past 10 years.

However, as noted here last year, the number of published judgments in 2014 (49) and 2015 (53)  were among the fifteen lowest in the High Court’s history. With three judgments released today, 2016 equals 2015’s number of published judgments.

As previously noted, counting High Court judgments is not straightforward, because of changing practices in judgment publication (notably past courts’ willingness to issue lengthy substantive judgments on special leave applications.) The judgments published by the High Court typically include some minor judgements – single judge decisions and interlocutory rulings – that seemingly reflect publishing preferences in individual judges. This year, there were four such judgments, leaving 49 substantive judgments in 2016, one more than each of the last two years. The final counts of substantive judgments for the French Court are: Continue reading

News: Three new special leave grants round off 2016

Just when it seemed that 2016 couldn’t get any worse, the High Court’s website went out of action last weekend from late Friday afternoon until mid-Sunday. The High Court has not provided any explanation to date of the outage, either over the weekend – the Court presently does not use social media tools that would suit such notice – or since. That means that Australians (other than those who happened to be at the High Court’s Sydney or Canberra registries on Friday morning) had to wait until Monday afternoon to discover what special leave applications were granted or dismissed in the Court’s last oral hearings for the year. Applications addressed in those hearings include three matters of broad public interest: an appeal by The Age newspaper concerning an order that journalists reveal their sources to a defamation matter; a dispute in Nauru’s Supreme Court concerning its jurisdiction to hear appeals in refugee matters; and challenges to ICAC findings holding that developers committed corrupt conduct by allegedly concealing the involvement of Eddie Obeid in their proposals.

As it turns out, leave was not granted in any of those matters. Rather, yesterday afternoon, the Court’s  website revealed that three different applications were granted at the oral hearings (the only three grants in December.) The three matters that will be heard by the Kiefel Court next year are: Continue reading

News: High Court forms must now include the Queen’s name

The  High Court Amendment (2016 Measures No. 2) Rules 2016 were published on December 6th this year and took effect on December 9th. The amendments, presumably the final ones from the French Court, include new forms for arrest warrants, committal warrants, subpoenas and writs. For the first time since 2004, those forms must include the following words:

ELIZABETH THE SECOND, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth

These are the exact same words that were once required by the 2004 rules’ predecessor. As noted here, these amendments were prompted by a question from Senator Rod Culleton to Attorney-General Brandis, who pointed out that the previous version of the rules did not require that such forms comply with  s. 33 of the High Court of Australia Act 1979:

All writs, commissions and process issued from the High Court shall be:
(a) in the name of the Queen…

Even if Senator Culleton’s election is held to have been invalid by the Court of Disputed Returns, he will have had an impact on the statute book and the High Court that is rare indeed for a minor party Senator.

News: French CJ’s last words

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In Wednesday’s ACCC v Flight Centre Travel Group Limited [2016] HCA 49, concerning whether Flight Centre breached competition laws by seeking a deal with some airlines not to undercut its prices, French CJ’s separate judgment concludes:

In my opinion, Flight Centre was not in competition, in any relevant market, with the airlines for which it sold tickets. Its proposals with respect to the pricing practices of its principals were not proposals offered by it as their competitor but as their agent. I would dismiss the appeal with costs.

These are very likely French CJ’s last words in a court judgment. He did participate in a second judgment on Wednesday, seconds after the ACCC one, but that was a joint judgment with (as is often the case) Kiefel, Bell & Keane JJ, and (as is always the case) no indication of who wrote it. (Austlii’s earliest judgment by French J appears to be this one.) As French CJ has no more reserved judgments (having stopped hearing cases in early October), his only possible remaining judgments would be chambers or special leave matters. His remaining duties on the Court until his resignation on 29th January next year will be almost entirely administrative or ceremonial.

Wednesday’s ACCC judgment was unusual for the outgoing Chief Justice in another respect. Continue reading

News: An Interruption in the Court of Disputed Returns

This week, the United Kingdom’s and Australia’s apex courts each held hearings that touch on recent votes in each country. The UK Supreme Court’s Brexit case (on whether triggering the UK’s exit from the EU is a matter for parliament or just the executive) is broadcast live on the Court’s website. The High Court’s Culleton hearing (where the Court of Disputed Returns will determine whether the WA One Nation Senator was disqualified by a since annulled conviction for larceny) can now be viewed on the Court’s AV archive, albeit not live. One difference that seemingly follows from this is that the video record of the Court may be incomplete. A possible example is an incident at the hearing described in The Guardian as follows:

The high court hearing into Rodney Culleton’s eligibility as a senator was interrupted by a One Nation member who labelled it a “star chamber” and “kangaroo court” after Culleton lost a bid for an adjournment. The dramatic interjection was made by member John Wilson, without Culleton’s knowledge. The senator’s chief of staff, Margaret Menzel, then remarked “he’s right” and his wife Ioanna Culleton said “at least someone has the guts to stand up [and say it]” as Wilson was asked to leave the court room.

I have been unable to locate this incident on the video recording of the hearing that appeared on the High Court’s website yesterday afternoon. Interestingly, though, there appears to be an unexplained, and unsignposted, break in the recording just after the 36 minute mark, immediately after Kiefel J says the words ‘We will now proceed to hear the substantive argument.’ You can see it most clearly by watching Keane J’s hands.

As noted in an earlier post, interruptions in apex court proceedings, usually as a form of political protest, are nothing new. However, video recording of hearings is a recent phenomenon in the High Court. If it is correct that the interruption and other events described in the media indeed occurred in the above break, then it appears that the Court may have an unannounced policy to remove these events from thevideo  record.  Continue reading

News: The Kiefel Court

Today’s news, as welcome as it is unsurprising, officially confirms that the next High Court will be the Kiefel Court. Here are some features of the new Court that will commence on 30th January 2017:

  • Susan Kiefel, age 63, appointed by Howard government until 17th January 2024
  • Virginia Bell, age 65, appointed by Rudd government until 7th March 2021
  • Stephen Gageler, age 58, appointed by Gillard government until 5th July 2028
  • Patrick Keane, age 64, appointed by Gillard government until 26th October 2022
  • Geoffrey Nettle, age 66, appointed by Abbott government until 2nd December 2020
  • Michelle Gordon age 52, appointed by Abbott government until 19th November 2034
  • James Edelman, age 43, appointed by Turnbull government until 9th January 2044

With Edelman J ( a Supreme Court judge later Federal Court judge, from WA) replacing French CJ (previously a Federal Court judge from WA, appointed by the Howard government), the Court’s diversity in appointing party, gender, geography (alas for South Australia) and prior positions remains unchanged. However, Edelman J is the Court’s first appointee born in the 1970s, just as Gordon J before him was the Court’s first appointee born in the 1960s.

Assuming no early resignations, these are the last new appointments to the High Court for four years. The next (or so) Prime Minister  will then have the opportunity to replace Nettle J and Bell J in quick succession in 2020/1, followed by Keane J in 2022. If Kiefel CJ stays for her full term, then the next most senior judges will be Gageler J, Gordon J and Edelman J. As  Gageler J will have only four years remaining on the Court (although Brennan CJ was appointed in similar circumstances), a Gordon Court from 2024-2034 and an Edelman Court from 2034-2044 would be a solid bet.

News: Ten new grants of special leave

Senators’ queries and qualifications aside, the High Court is having a quiet month, perhaps in part because some pending matters have been shifted to February when the Court will again have seven functioning judges. The Court finished off all of this month’s full court hearings in a single week and also announced orders settling or partly settling matters where special leave had been granted (in cases concerning migration, sentencing and advocates’ immunity.) At the same time, there has been a bumper crop of special leave grants this month, two on the papers last week, a spectacular five out of six applications granted in Wednesday’s oral hearing and three at today’s oral hearing.

All up, ten new cases will eventually be heard on appeal: Continue reading