The Supreme Court of the Australian Capital Territory today quashed David Eastman’s conviction for the 1989 murder of the Commissioner of the Australian Federal Police, Colin Winchester. This result followed a wide-ranging report into the safety of his conviction by former Northern Territory Chief Justice Brian Martin that concluded that his conviction was unsafe for a combination of reasons, the primary one being a finding of flawed science and bias by a ballistics expert. The Supreme Court agreed with Martin’s conclusion, but not his further view that any retrial would be impossible. Today’s decision is a lengthy and complex one raising difficult questions about judicial inquiries into the safety of finalised convictions, including matters such as whether the court is limited to inquiring into doubts about guilt (as opposed to the fairness of the trial), whether the court can have regard to material that is kept confidential from the parties, whether an otherwise strong circumstantial case becomes unsafe because of doubts about forensic evidence and whether retrial should be ordered so long after the original 1995 trial.

It may be that questions about these issues will be appealed to the High Court. If so, it will be the latest of many High Court rulings on Eastman’s prosecution, including Continue reading →

This week, the High Court decided three criminal law cases, declined to proceed with a fourth following a full hearing, awarded additional costs to the victor in an earlier matter and held two case management hearings: one, in the ongoing litigation about the Commonwealth’s powers to detain asylum seekers en route to Australia and another in a constitutional challenge to a NSW law revoking mining licences following a corruption inquiry.

As well, today, the High Court  granted special leave to appeal in three commercial investment matters and a regulatory dispute involving a very high profile tragedy. Continue reading →

Seven years ago, a majority of the High Court in Tofilau v R [2007] HCA 39 upheld four Victorian convictions founded on an unusual criminal investigative method. The method (known in Australia as ‘scenario’ evidence) is for undercover police officers to recruit suspected criminals into fake criminal gangs and then trick them into confessing real crimes by telling them that such confessions are a requirement for membership. After further prompts (such as staged inquiries from real police and promised aid from ‘corrupt’ police), the scenario culminates in a detailed, videotaped interview with the gang’s ‘boss’, after which the sting is revealed to the stunned suspect. This astonishing method (whose details can only be published thanks to a 2005 High Court ruling rejecting a publication ban) was developed in Canada, and the High Court in 2007 relied heavily on its repeated endorsement by the Canadian Supreme Court in upholding its use here.

However, last week, Canada’s top court unanimously changed its mind Continue reading →

This July – the High Court’s winter recess – has seen six lengthy hearings concerning legal action on behalf of passengers of a boat from India who have spent the balance of the month detained in an Australian government vessel. Continue reading →

This week brought important developments in two significant proceedings that will soon be heard by the High Court: the urgent litigation over the fate of approximately 150 Sri Lankan asylum seekers held in an Australian cargo vessel; and the constitutional challenge to Queensland’s ‘bikie’ laws. Continue reading →

Canadian journalist Catherine Clark, the daughter of a former Prime Minister and the host of Beyond Politics (shown on Canada’s public affairs cable channel) has conducted video interviews with the entire bench of the Supreme Court of Canada. Each runs for nearly 30 minutes. There are only eight interviews, as the Court’s ninth seat was unoccupied until recently (for reasons explained here). The interviews are available online at the website of Beyond Politics and on the show’s youtube channel (see the end of the list). In her interview, the current Chief Justice Beverly McLachlin reveals that she received the phone call offering her a place on the court while vacationing with her twelve-year old in Townsville.

Clark’s interviews resemble video interviews given by all sitting judges of the United States Supreme Court in 2009 on CSPAN. The American and Canadian Supreme Courts’ willingness to give interviews while on the bench contrasts with the general practice of Australia’s High Court, which is generally limited to rare interviews with the Chief Justice on special occasions, such as impending retirement [UPDATE: see comment below.] Last year, The Australian reported that the Court’s current Chief Justice, Robert French, has ruled out any media interviews before he retires in 2017.

Media reports state that the High Court has issued an injunction preventing the Australian navy from handing over approximately 150 people, said to have travelled by boat to seek asylum in Australia, to Sri Lankan officials.  This follows confirmation by the Australian government of an incident involving 41 people:

Forty one potential illegal maritime arrivals who were intercepted on the SIEV were returned to Sri Lankan authorities yesterday (Sunday 6 July). The 41 Sri Lankan nationals were transferred at sea, in mild sea conditions from a vessel assigned to Border Protection Command (BPC) to Sri Lankan authorities, just outside the Port of Batticaloa. All persons intercepted and returned were subjected to an enhanced screening process, as also practised by the previous government, to ensure compliance by Australia with our international obligations under relevant conventions.

The Australian reports that the injunction was granted by Crennan J in an urgent hearing this evening and will apply until 4pm tomorrow, by which time a further hearing will have occurred.

A possible precedent for the reported injunction is an interim injunction granted by Hayne J on 7 August 2011 to prevent the first transfer of asylum seekers from Christmas Island to Malaysia under the ‘Malaysian Solution’. Continue reading →

Last week, the High Court held two directions hearings in Kuczborski v The State of Queensland, the long-expected constitutional challenge to multiple laws enacted by the Queensland Parliament in the early hours of 16th October last year as a response to a Gold Coast ‘brawl’ nineteen days earlier. In last Monday’s hearing, Keane J revealed that the High Court hoped to schedule the full hearing in Brisbane in the first week of September. Queensland’s new Solicitor-General, noting that the case would require a day of arguments each by the challenger and Queensland and may attract interventions from many other Attorneys-General, suggested that the hearing would take ‘at least three days’. A four-day hearing would be the second one this year. As I noted last month on the chaplaincy hearing’s fourth day, the two previous four-day matters in the High Court were in 2009 and 2006.

The length of this matter may be less to do with its significance or controversy, and rather is likely due to the number of laws being challenged and the number of grounds. Continue reading →

This past fortnight, the Court heard two constitutional challenges (to NSW’s consorting offence and a Queensland indefinite detention statute) and two potential landmark appeals (on the admissibility of expert evidence and tort liability for defective building), and also published five judgments (including rulings on the validity of the PNG solution, the chaplaincy program and the cap on protection visas). As well, the Court made some quieter rulings, revoking special leave in a technical case about refugee appeals and allowing a criminal appeal about DNA transfer. To cap off its busy fortnight, the Court also took on two new private law appeals from the following decisions of the NSW Court of Appeal: Continue reading →

The High Court today granted special leave to appeal in seven cases as follows: Continue reading →

The High Court today heard its fourth day of oral arguments in Ron Williams’s current challenge to the National School Chaplaincy Program. The High Court’s willingness to allow days of argument on major cases sharply contrasts with the United States Supreme Court, which abandoned the practice of lengthy arguments in 1849, and now typically allows just 30 minutes per side and often hears two full cases in a morning. The more relaxed approach in Australia allows arguments to develop and even alter substantially during the course of a hearing. However, that flexibility was itself a matter of controversy in Williams’s previous challenge to the Chaplaincy Program in 2011. Continue reading →

The High Court played a role on both occasions when jury findings against Raymond Carroll in relation to the death of toddler Deidre Kennedy were overturned on appeal. In 1985, Carroll’s conviction for Kennedy’s murder was quashed by Queensland’s Court of Criminal Appeal, relying in part on the High Court’s judgments in Chamberlain (to hold that the jury should have been directed that it should not rely on forensic evidence that his teeth matched a bite on the toddler’s body unless satisfied of that fact beyond reasonable doubt) and Markby, Perry and Sutton (to hold that ‘similar fact’ evidence of Carroll’s alleged biting of another child was inadmissible). Each of these High Court judgments have since been qualified by later High Court judgments (Edwards and Pfenning) and (in some states) legislation. More importantly, in 2002, the High Court ruled that Carroll’s subsequent conviction for perjury (for allegedly lying at the 1985 trial when he denied murdering the toddler) was an abuse of process because of the rule against double jeopardy. Following England’s lead, most Australian states and territories have since enacted exceptions to the rule against double jeopardy.

Yesterday, the Queensland Attorney-General announced an extension to the state’s existing exceptions to the double jeopardy rule that has particular implications for Raymond Carroll: Continue reading →

In yesterday’s special leave hearings in Melbourne and Sydney, the High Court rejected all the applications from Melbourne but gave positive responses to three from Sydney. The three cases that will now be heard by the full Court are: Continue reading →

In 1996, the High Court – in arguably its most significant constitutional law decision in recent decades – struck down a NSW law providing for the continued detention of one person, Gregory Wayne Kable, ruling that a number of aspects of that law, including its one-person nature, were incompatible with the institutional integrity of state Supreme Courts required by the federal constitution. Last year, the Court revisited that case, ruling out Kable’s claim that he was falsely imprisoned under the invalid law. It seems likely that the High Court will revisit that decision in another way this year. The Victorian Parliament today enacted a Bill barring parole except in cases of permanent physical incapacity or imminent death for just one person – the ‘prisoner Julian Knight’.

Continue reading →

A majority of Canada’s Supreme Court today ruled that:

the appointment of Justice Nadon and his swearing-in as a judge of the Court were void ab initio. He remains a supernumerary judge of the Federal Court of Appeal.

‘[T]he Court’ the Court referred to, was, of course, the very Court that made that ruling. If the dissent of Moldaver J had prevailed, Nadon J would now be (and would have been for months) a fellow member of the Court that just ruled him ineligible for membership. The background to the decision is described here.  Continue reading →

The High Court today held special leave hearings today for sixteen matters from the ACT, NSW, South Australia, Western Australia and the Federal Court. Of these, six cases were granted special leave to appeal. The six cases are: Continue reading →

Last year, some Australians learnt the outcome of the High Court’s same-sex marriage decision minutes (or more) before it was delivered. This weekend, the result of a UK Supreme Court decision was announced in the UK press four days before it was delivered. The case concerned an investigation of an alleged leak from a government emergency committee to a Sky News reporter. Scotland Yard’s Chief Commissioner asked the Supreme Court to overturn a lower court’s ruling that a court cannot rely on secret (undisclosed) government evidence to order a media organisation to disclose documents relevant to the investigation. However, according to one paper:

The Mail on Sunday understands that the Supreme Court has rejected his demand. Its ruling is due to be published on Wednesday.

As yesterday’s Supreme Court judgment revealed, the Mail’s reporting was accurate.

So, who leaked the Court’s media leak judgment to the media? Continue reading →

Last Friday saw a dubious first: video of argument before the United States Supreme Court, now available on youtube. The matter was McCutcheon v Federal Electoral Commission, argued last October, on the vexed issue of campaign finance laws. There are several reasons this ‘first’ is dubious. For starters, there are two past clandestine photos of the court at work, albeit taken over eighty years ago. As well,the youtube video barely shows anything, as it was also taken surreptitiously and focused mainly on a protest by a group opposed to the Court’s controversial Citizens United ruling striking down limits on corporate donations. (Australia’s High Court heard and ruled on a similar case late last year.)  While the video has drawn modest attention to issue of campaign financing, its main impact has been to prompt some  interesting discussion of the legality of videos and protests inside a national court.

Continue reading →

Economists from Monash University, Dr Vinod Mishra and Professor Russell Smyth, have published a paper in the Australian Journal of Political Science examining the effect of barrister gender on appeal outcomes in the High Court of Australia. According to the abstract:

We examine the relationship between gender of the barrister and appeal outcomes on the High Court of Australia. We find that an appellant represented in oral argument by a female barrister, opposed to a respondent represented in oral argument by a male barrister, is less likely to receive a High Court justice’s vote. However, we also find that the appellant disadvantage of having a female barrister present oral argument is (partially) offset in the case of liberal justices and on panels having a higher proportion of female justices. The extent to which the disadvantage is offset, and potentially turns from being a disadvantage to an advantage, depends on the degree to which the justice is liberal and the proportion of female justices on the panel.

For non-subscribers, an earlier version of the paper is available here. Continue reading →

At Friday’s special leave hearings, the High Court only granted leave to appeal in one case decided by the NSW Court of Appeal, a corporations law matter. However, the Court also ruled that it will hear and decide another case that is before the NSW Court of Appeal but which that court is yet to rule upon. The case is an ongoing prosecution of three people for committing the NSW crime of consorting. Even though there hasn’t been a trial so far, the matter was before the NSW Court of Appeal to determine whether or not the provision setting out the offence is invalid. Friday’s ruling means that the High Court will now be the first and final court to rule on that question.

What is the challenge about? Continue reading →

In a joint press release, the Prime Minister, Employment Minister and Attorney-General today made their expected announcement of a new royal commission into trade union governance and corruption. The announcement revealed the new commissioner:

The Government will also recommend that The Honourable John Dyson Heydon AC QC be appointed as Commissioner to lead this inquiry. A former High Court Judge, His Honour has a distinguished legal career and I am pleased to confirm his willingness to accept this appointment.

Dyson Heydon is the most recent judge to leave the High Court, reaching the constitutionally mandated retirement age of 70 on 1 March last year.

In some respects, the role will be a familiar one for Mr Heydon. Continue reading →

The Supreme Court of Canada, that country’s equivalent to Australia’s High Court, held a hearing this week on the interpretation of its own constituting statute, the Supreme Court Act. Or, to be more precise, some of its judges held that hearing. One of its judges, Nadon J, who was sworn in to the national court last October, did not sit – and, indeed, has never sat – because it is the legality of his appointment that his remaining colleagues must determine. One newspaper has likened the hearing to a tribal council on television’s Survivor.

The legal issue for decision is the statutory qualifications for appointment to the national court. Continue reading →

In its final scheduled sitting day for the year, the High Court granted a modest three applications for special leave to appeal lower court decisions involving the dismissal of a senior bank manager, the wrongful disclosure of a compelled examination and a lover’s promise about a burnt-down cottage: Continue reading →

Today’s High Court announcements on same-sex marriage, immigration detention and consumer law were doubtless disappointments for some. However, the one body that may be especially disappointed is the Court itself. The Canberra Times reports:

The court handed down its findings in the landmark case about 12.15pm, although a statement announcing the decision was accidentally published on the court’s website about 20 minutes earlier.

While French CJ’s announcement in Courtroom 2, reportedly greeted by silence and sobs, was anticipated by many legal observers, others knew exactly what the Chief Justice would announce. Continue reading →

You are cordially invited…:

Please be advised that the High Court will deliver the following judgments in the next week:

Thursday, 12 December 2013 at 12:15 pm in Court No.2 Parkes Place, Canberra

Plaintiff M76/2013 v Minister for Immigration Multicultural Affairs and Citizenship & Ors(M76/2013)

Australian Competition and Consumer Commission v TPG Internet Pty Ltd(M98/2013)

The Commonwealth of Australia v. The Australian Capital Territory(C13/2013)

The third case is the same-sex marriage case. This announcement (from the High Court’s Judgment Delivery Notification alert service) confirms the ‘hopes’ that French CJ expressed at the end of Tuesday’s hearings. Barring an unlikely retraction, the validity of the ACT’s marriage law will be known on December 12. Indeed, it will be known not too long after 12.15pm that day. The announcement also reveals two further details: the venue and who else is in the order of ceremonies. Continue reading →

Yesterday’s hearing in the same-sex marriage case concluded with the following words (at 4:40:15 on the video) from French CJ:

The Court will reserve its decision. The Court hopes to be in a position to announce a decision on 12 December.

The first sentence means that the Court will not decide the case right away. That is typical in final hearings, although there are exceptions (see here and here.) However, the second sentence is not at all typical. In most cases, no indication is given and the judgment comes when it comes.  For example, there was no indication at the May hearing that today’s decision on patents would be the Court’s slowest judgment this year. The Court makes exceptions, though, if knowledge of the timing of the judgment would make a significant difference to someone. For example, at the conclusion of the 2010 hearings on the validity of laws on electoral enrolments, French CJ announced that he hoped that the Court would be in a position to announce a decision the next day, presumably saving the Commonwealth Electoral Commission a lot of money in planning for the contingency of a judgment of invalidity after the rolls had closed.

It is easy to see why the High Court announced a (tentative (UPDATE: see second comment below)) date for judgment in Cth v ACT. As has been widely reported, the announcement immediately resolved whether or not this weekend’s planned weddings in the national capital can go ahead (subject to the distant possibility of a speedier Court decision or the less distant possibility of a Commonwealth application for an injunction.) However, the particular date the Court set is a genuine surprise Continue reading →

Today was to be the first of two days of hearings of Commonwealth v ACT, the High Court’s first foray into the issue of same-sex marriage. The dispute has been the subject of a number of excellent media pieces explaining the legal issues, most recently a preview on The Conversation by Sydney Law School’s Professor Anne Twomey, including a link to a paper she presented last week on the key statutory provision in the dispute, s. 28 of the ACT (Self-Government) Act 1988. This blog’s case page provides links to coverage  of the case on Opinions on High, the transcripts of hearings to date, the Commonwealth’s writ of summons and the High Court’ s own archive of orders and written submissions. Following a recent innovation, the Court will post videos of the hearings on its webpage.

The breaking news today is that the Court has reportedly reserved its judgment after just a single day. While we wait for the transcript of the proceedings, the other news at this stage is about who is involved in the hearing and who isn’t: who is on the bench? who is at the bar? and who is absent? Continue reading →

High Court watchers sometimes speculate that the judges’ willingness to grant special leave varies inversely with their current level of business. Friday’s application hearings show no support at all for that theory.

Having just heard a complex challenge to NSW campaign funding laws and with closely watched expedited hearings on marriage equality and the WA Senate results in the pipeline, the Court granted eight applications for special leave – the highest number in a single day since September 2011 –  from the following (highly complex) cases: Continue reading →

Monday’s second directions hearing in Cth v ACT fixed a firm date for the full court hearing: 3 and 4 December. That puts the hearing — and perhaps the Court’s orders — ahead of any possible marriages under the yet-to-commence new law’s one-month notice period.

Chief Justice French also settled eight questions for the Court to resolve. Unfortunately, the transcript only reveals the final two, concerning the Court’s ultimate orders and who pays the costs. The rest are contained in an unpublished amended statement of claim lodged by the Commonwealth on 28 October.

Nevertheless, the transcript did reveal two things that won’t be at issue in early December: Continue reading →

Last week saw the introduction and speedy passing of some extraordinary Bills in the Queensland parliament. A trio of laws targeting criminal associations follow a widely reported brawl between two bikie gangs outside a Broadbeach restaurant in late September, while a further law targeting sex offenders comes as the Attorney-General appeals against a ruling that same day permitting the release into the community of Robert Fardon, the first man detained as a dangerous sex offender following the expiry of his sentence. Foreshadowing the new bikie gang laws last week, Premier Campbell Newman reportedly told the media:

“We know that some of these things will be challenged… We know that some may be overturned. It doesn’t matter. We are going to continue to try again. There are many mechanisms that we are going to use.”

Indeed, High Court judgments both past and future loom over each law. Continue reading →

A month ago, the High Court announced that it would enter the video-publishing business, uploading videos of its Canberra hearings (other than special leave hearings) to its website. On Monday, the Court uploaded its first four videos to a new  ‘recent AV recordings‘ entry under its webpage‘s ‘cases’ menu.  The Court’s prediction that the recordings’ availability would be ‘initially likely to be a few business days after hearings’ was too ambitious; it took eight business days for video for the first eligible hearing (BCM v R, including the bonus issuing of judgments in Bugmy and Munda) to be uploaded. However, the most recent hearing of the session (Karpany v Dietman) took just three business days, confirming its prediction that ‘[t]his delay is likely to be reduced as Court experience grows.’

Interestingly, the new page sets out, for the first time, the Court’s ‘terms of use’, which indicate that none of its videos will be going viral anytime soon: Continue reading →

At hearings in Sydney and Canberra today, the High Court granted special leave to four new cases (in contrast to six new cases at each its previous two sessions.) Two of the cases – both particularly interesting ones, in my view – are appeals from the Northern Territory Supreme Court. It’s been over three-and-a-half years since the High Court last granted leave to a Northern Territory case. The Court typically averages a little under one case a year from that jurisdiction.

The four special leave grants are for appeals from the following decisions: Continue reading →

The High Court today released its highly-anticipated judgment in Bugmy v The Queen,[2013] HCA 37, previewed here, examining the so-called Fernando principles concerning the sentencing of indigenous Australians. The defendant, William David Bugmy, succeeded in his appeal. However, as is often the case with High Court judgments, the true significance of the case is harder to parse.The Court didn’t restore Bugmy’s original (lower) sentence, but rather told the NSW Court of Criminal Appeal to reconsider the Crown’s criticism of that sentence afresh. More importantly, the Court rejected both the Court of Criminal Appeal’s interpretation of the Fernando principles and a number of suggested refinements of those principles proposed by Bugmy.

The case has generated interest online, captured in discussions on social media. Immediate reactions on Twitter fell into two camps.  Continue reading →

In a media release today, the High Court announced that it will make audio-visual recordings of hearings held in its Canberra building available on its website from 1 October 2013, supplementing written transcripts of the Court’s hearings that have been published on Austlii since 1994. The videos will be made available a few days after the hearing (to allow for confidential information, such as the suppressed names of witnesses, to be edited out), but the release observes that the delay is likely to reduce as experience with the procedure increases. The new policy applies to ‘all Full Court hearings in Canberra, other than Applications for Special Leave’.

The release notes that ‘[t]he Court’s decision to take these steps was made having regard to the nature of its jurisdiction and is not intended to set any precedent for other courts’. However, it does partially follow precedents set in other top national courts. Continue reading →

The High Court spent three days in the past week (including two in Perth) sorting through applications to bring appeals before it. The Court turned down some high profile cases (including The Age’s battle to resist revealing its sources for its reporting on MP Joel Fitzgibbon and businesswoman Helen Liu and Hancock Prospecting’s attempt to retain a stake in a Pilbara iron ore venture), while agreeing to hear appeals from six judgments: Continue reading →

The 2001 federal election was shaped by the maritime rescue of 438 people by a cargo vessel, the MV Tampa. When the ship’s captain, Arne Rinnan, attempted to take the rescuees to Christmas Island, the Howard government responded by closing the port, an action whose validity under domestic law was upheld by the Full Court of the Federal Court (including then Justice Robert French).

This week, two aspects of the Tampa affair’s aftermath reached the High Court.  Continue reading →

A former High Court judge, Ian Callinan QC, is currently playing a central role in an issue of intense political controversy in Victoria: the state parole board’s failure to revoke the parole of Adrian Bayley in the period leading up to his murder of Jill Meagher. His review of the board’s operation is widely quoted in today’s press prior to its formal release. Continue reading →

In hearings in Melbourne and Sydney today, the High Court agreed to hear six new cases. The six cases are appeals from the following judgments: Continue reading →

Today, the High Court will hear an application from Robert Farquharson, who was convicted in 2010 of murdering his three children by deliberately driving into a dam near Winchelsea, Victoria on Fathers’ Day 2005. The events at that dam continue to be of great interest to many Australians, but that is not a typical reason for a criminal defendant to get a full hearing before the national court. Continue reading →