NSW attempt to control bikies fails in the High Court

In Wainohu v State of NSW [2011] HCA 24 the High Court has ruled that the attempt by the former NSW government to control the activities of motorcycle gangs and their members is invalid.

The Crimes (Criminal Organisations Control) Act 2009 (NSW) contains two substantive parts.  Part 2 of the Act provides for the appointment by the Attorney-General of judges of the Supreme Court of NSW as "eligible judges".  The Police Commissioner may apply in writing to an eligible judge for a declaration under Part 2 that an organisation is a "declared organisation" for the purposes of the Act.  The application must set out the grounds upon which  the declaration is sought, and must be supported by an affidavit.  Members of the organisation and other persons who may be directly affected by the outcome of the application must be invited, by public notice, to make submissions to the eligible judge.  The rules of evidence do not apply to the hearing of an application for a declaration.  If the eligible judge is satisfied that members of the organisation associate for the purposes of organising, facilitating or engaging in serious criminal activity, and that the organisation represents a risk to public safety and order, the eligible judge may make the declaration.  The eligible judge is not required to provide any grounds or reasons for the declaration or decision.

Part 3 of the Act deals with the control of members of declared organisations.  It empowers the Supreme Court to make control orders against members.  It is in offence for controlled members to associate with each other.  A controlled member must not recruit another person to become a member of the declared organisation.  And controlled members are prevented from applying for or holding authorisation to conduct certain types of business activities (such as bookmakers, tow truck drivers or motor mechanics, pawnbrokers, security guards, selling liquor or possessing or selling firearms).

The High Court (French CJ and Kiefel J, and Gummow, Hayne, Crennan and Bell JJ, Heydon dissenting) held that Part 2 of the Act offended the so-called Kable doctrine and that because Part 3 of the Act depended upon the operation of Part 2, the whole Act was invalid.

Shortly stated, the effect of the so-called Kable doctrine is that  a State legislature cannot confer on the judges of a State Court administrative functions which substantially impair its essential and defining characteristics as a Court.

The High Court held that the Act effects such an impairment because it provides, in effect, that the jursidiction of the Supreme Court to make control orders against members of an organisation (under Part 3) will be enlivened by a decision of a judge of the Court (under Part 2), following an adversarial proceeding, which requires factual findings of a wide-ranging and complex nature, and the important evaluative judgment that the organisation represents a risk to public safety and order, and for which the Act expressly provides that no reasons are required to be given.  This, it was said, contrasts sharply with the general duty of judges of the Supreme Court to give reasons for their decisions.  The effect of the Act was that the basis of an eligible judge's declaration, a necessary precondition for the making by the Court of a control order against members, was unexplained to the Court, or to anybody else.

Ultimately, this may be a pyrrhic victory for the Hell's Angels who brought the case.  It seems clear from the judgments that so long as there is an obligation on the eligible judge to give reasons for the making of the initial declaration, the Act would otherwise be valid.

High Court's missed opportunity for expert evidence

In the recent decision of Dasreef Pty Ltd v Hawchar [2011] HCA 21 the High Court has passed up an opportunity to resolve, once and for all, a number of important issues in relation to the admissibility of expert evidence.

Hawchar worked for Dasreef as a labourer and stonemason over a period of around five and a half years between 1999 and 2005.  In 2006 he was diagnosed with early stage silicosis.  In proceedings commenced in the Dust Diseases Tribunal, Hawchar relied on opinion evidence from Dr Kenneth Basden, a chartered chemist, chartered professional engineer and retired academic. In his report, Dr Basden said that “actual dust concentrations generated in [Hawchar’s] breathing zone ... most certainly would not be from half to two ten-thousandths of a gram [0.05 to 0.2mg] per cubic metre of air, but more realistically would be of the order of a thousand or more times these values or even approaching one gram, or thereabouts, per cubic metre.  The trial judge used it as an integer in calculations leading to the conclusion that the time weighted average of Hawchar’s exposure to dust while working for Dasreef, assuming he was exposed for 30 minutes on each of five days per week, was 0.25mg/m3, which exceeded the limit of 0.2mg/m3 in the relevant Australian standard. That was a pleaded particular of a breach of statutory duty.  The Court of Appeal upheld the trial judge’s use of the evidence in that way.

On appeal to the High Court, Dasreef argued that Dr Basden’s opinion was inadmissible by reason of s79(1) of the Evidence Act 1995 (NSW) which provides:  “If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”  The “opinion rule” is the general exclusionary rule contained in s76(1) of the Act that provides: “Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.”

The High Court unanimously ruled that Dr Basden’s evidence was not admissible to establish the numerical or quantitative level of exposure. 

The plurality judgment (ie the whole of the High Court except Heydon J) based its conclusion on the basis that Dr Basden had not demonstrated how his opinion was based upon his training, study or experience.  There was no evidence that his training, study or experience permitted him to provide anything more than what he called a “ballpark” figure estimating the amount of respirable silica dust to which a worker using an angle grinder would be exposed if that worker was using it in the manner depicted in the photograph of Hawchar or a video recording that Dr Basden was shown. Indeed, in his written report, Dr Basden had pointed out that he had seen the use of an angle grinder in this way only once before. And he gave no evidence that he had then, or on any other occasion, measured directly, or sought to calculate inferentially, the amount of respirable dust to which such an operator was or would be exposed.

In doing so, the plurality emphasized that while the admissibility of evidence was to be considered in the light of the provision of the Evidence Act:

It remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

Where the plurality judgment becomes more interesting is in relation to a submission by Hawchar that Dasreef was seeking to reintroduce the common law “basis rule” that had been discarded (so it was argued) by the Evidence Act.  The “basis rule” was a rule that provided that opinion evidence was to be excluded unless the factual bases upon which the opinion was proffered are established by other evidence.  The plurality said:

Whether that rule formed part of the common law of evidence need not be examined.  It may be accepted that the Law Reform Commission’s interim report on evidence denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the legislation the Commission proposed and which was later enacted as the Evidence Act.

The plurality concluded by saying:

A failure to demonstrate that an opinion expressed by a witness is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight. To observe, as the Court of Appeal did, that what Dr Basden said about the volume of respirable dust to which Mr Hawchar was exposed over time was “an estimate” that was “contestable and inexact” no doubt did direct attention to its worth and its weight. But more importantly, it directed attention to what exactly Dr Basden was saying in his evidence and to whether any numerical or quantitative assessment he proffered was admissible. And if, as the Court of Appeal observed, his opinion on that matter lacked reasoning, the absence of reasoning pointed (in this case, inexorably) to the lack of any sufficient connection between a numerical or quantitative assessment or estimate and relevant specialised knowledge.

In his concurring judgment, Heydon J let both barrels fly in defending the statement of the law relating to opinion evidence he had proffered when in the NSW Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, which has been stridently criticized as at best a “counsel of perfection” and at worst an overstatement of the opinion rule provided for by the Evidence Act.  In doing so, Heydon J emphasized that both at common law and continuing under the Evidence Act, in order to be admissible opinion evidence had to satisfy three requirements:

• First, the expert has to disclose the “facts” and “assumptions” on which the expert’s opinion was founded (the “assumption identification” rule).

• Secondly, the “facts” and “assumptions” stated must be proved before the evidence is admissible (the “basis” rule in the language of the ALRC, but which Heydon J refers to as “proof of assumption” rule).

• Thirdly, there must be a statement of reasoning showing how the “facts” and “assumptions” are related to the opinion so as to reveal that that opinion was based on the expert’s expertise (the “statement of reasoning” rule). 

In relation to the assertion that the “proof of assumption” rule did not exist at common law, and the ALRC had deliberately decided not to include it in s79, Heydon J said:

The [ALRC’s] reasoning has misled both itself and some of its readers. A decision to refrain from including what was thought to be a rule which does not exist at common law does not demonstrate abolition of a rule which does in fact exist at common law.  The [ALRC] wrongly thought that there is no proof of assumption rule at common law. On that hypothesis, as the [ALRC] correctly saw, the question was whether it should recommend that the legislature should enact one, and it decided not to make that recommendation. In fact there is a proof of assumption rule at common law, and the question for the [ALRC] thus should have been whether to recommend that it be abolished by legislation. To abolish it by legislation would have called for specific language. The [ALRC’s] misapprehension of the common law, and hence of its task, has resulted in a failure to have enacted specific language ensuring that s79 tenders need not comply with a proof of assumption rule. 

There can be no doubt that Heydon J’s reference to “readers” being misled is directed towards Branson J’s complaint in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 that Heydon J’s statement of the law in Makita was a “counsel of perfection”.  Heydon J’s rejection of that criticism was taken further in dealing with Branson J’s proposition that if “tenders depended on compliance with a proof of assumption rule, ‘the smooth running of trials involving expert evidence could be expected to be interrupted by the need to explore in detail, in the context of admissibility, matters more properly considered at the end of the trial in the context of the weight to be attributed to the evidence.’ "  In response, Heydon J said:

Those complaints overlook a key distinction. It is a distinction between the need for the party tendering an expert opinion to establish that the other evidence (tendered or yet to be tendered) taken at its highest is capable of supporting the expert’s factual assumptions, on the one hand, and, on the other hand, the need for the tendering party to persuade the trier of fact to accept that the evidence tendered to support the factual assumptions actually does support them. And it is necessary to set against any practical difficulties caused by the proof of assumption rule a competing consideration. That is whether the reception of evidence which turns out to be useless because the assumptions on which it rests are unproven does not create countervailing difficulties – costs burdens, unduly long trials, the risk of misleading the trier of fact, and unnecessary appeals.

Ultimately, Heydon J ruled Dr Basden’s evidence inadmissible on the same basis as the plurality, ie that Dr Basden had not demonstrated how his opinion was based upon his training, study or experience.

As a footnote, it should also be noted that the plurality overruled previous decisions of the NSW Court of Appeal that had held that the DDT was entitled, as a specialist tribunal, to take into account its experience in determining what caused Hawchar’s silicosis.

The plurality concluded, nonetheless, that despite the inadmissibility of Dr Basden’s quantitative opinion, and the trial judge’s incorrect use of his experience as a specialist tribunal, nonetheless the evidence was sufficient to uphold the finding of liability in Hawchar’s favour.

The curious case of the plurality in the High Court

The word "plurality" has made an appearance more frequently in the judgments of the High Court to describe a judgment in which the majority of the judges forming the majority in the result have joined.

This is a very recent trend.

Of the judgments delivered since the Court's commencement in 1903 the word "plurality" appears in 83 of them.  Originally, it was used to describe more than one person (eg a plurality of voters or creditors) or more than one thing (eg a plurality of purposes, or of ducts) or to describe the grammatical concept of there being more than one thing (ie in contradistinction to singularity).

The word "plurality" does not make an appearance with its modern meaning until December 1999 in the case of Lipohar v R.  There, it is used to describe a plurality in the US Supreme Court where the use of the word in the sense of a judgment in which the majority of the judges forming the majority in the result have joined seems to have a more ancient lineage.  It next appears in its modern sense in 2000 (again in reference to the US Supreme Court).

It does not make a further appearance until 2006 where, in Australian Broadcasting Corporation v O'Neill it is used, perhaps inaccurately, to refer to the judgment of Lord Coleridge CJ in Bonnard v Perryman, a judgment that Lord Esher MR, and Lindley, Bowen and Lopes LJJ did not join, but with which they concurred.

Then, all of a sudden, in 2008 the word is used in its modern sense in 9 judgments, in 8 judgments in 2009 and in 7 judgments in 2010.

Curiously, it is only in its modern sense that the word has been used since 2006.

Private International Law

The world of Private International Law (or Conflict(s) of Law(s) as it is sometimes described) can be a dark and mysterious place, treacherous unless you're sure-footed, and labyrinthine for those who do not visit regularly.  It can be particularly bamboozling in Australia where many principles are yet to be the subject of authoritative rulings by the High Court, and where the principles applicable in conflicts between state laws may not necessarily be the same principles applicable to conflicts between an Australian law and a foreign law.


That is by way of introduction to an interesting paper written by Justice Brereton, one of the more cerebral judges on the NSW Supreme Court, entitled Proof of Foreign Law:  problems and initiatives.  This paper was delivered as part of a symposium hosted by the Sydney Law School on The future of private international law in Australia.  A podcast of the symposium is available for download.

Property confiscation orders upheld in the High Court

This morning the High Court rejected the appeal of a convicted murderer against a property confiscation order made by the Supreme Court of Western Australia.

This case concerned provisions of the Western Australia Criminal Property Confiscation Act 2000.  This Act in broad terms provides a scheme for the confiscation of property acquired as a result of the proceeds of criminal activity, and property used for criminal activity.  It also allowed for the confiscation of other property of equal value to that acquired from the proceeds of or used for criminal activity, where the original property was not owned by, or no longer owned by, the criminal.

In this particular case, in May 2003 White was convicted of the wilful murder of a Mr Tapley in 2001.  At the time of the murder White lived in rented premises on a property located in an industrial area from which he conducted a trucking business in Maddington.  A 6-foot cyclone fence surrounded the property.  Tapley attended the property with his girlfriend in order to obtain amphetamines.  Both were intoxicated.  When they arrived, there were three young women, two unidentified men and a third man known as Rainbow.  White was not at the property at the time.  He rang a Mr Reid and asked him to attend the property, lock the gates, and not let anyone come or go.  When Reid arrived at the property he saw that the gates were open, and so he asked Rainbow, who had a key, to lock the gates.  Reid and Rainbow then went up to the house.  A short time later White attended the property with a Mr Samuels.  They unlocked the gate, drove onto the property, then locked the gates behind them.  White told Tapley’s girlfriend and the other women to leave the property, which they did, Rainbow unlocking the gates and then locking them again after they had left. 

White confronted Tapley about the repayment of money.  Tapley did not reply, and White said that he would make an example of him.  Tapley walked form the house followed by White, who pulled out a gun and shot Tapley in the shoulder.  Tapley ran, and White fired a further three shots before Tapley reached the locked gates.  While he climbed over the gates, White shot him in the buttocks.  Tapley collapsed on the ground outside the fence.  White then unlocked the gates, walked out of the property, and shot Tapley in the head killing him.  He then moved Tapley’s body onto the property, before transporting it and disposing of the body.

The Director of Public Prosecutions instituted proceedings seeking a declaration that property owned by White was available for confiscation instead of the crime-used property at Maddington (which White did not own at the time of the murder).  The power to make such a declaration depended upon the operation of sections 146 and 147 of the Criminal Property Confiscation Act 2000.

Section 146(a) provides that property is crime-used if the property is used, or intended to be used, in the commission or in facilitating the commission of a confiscation offence (in this case, wilful murder).  Section 146(c) provides that property is crime-used if any act was done or facilitated in or on the property in connection with the commission of a confiscation offence.  Section 147 provides that a person makes criminal use of property if the person, alone or with anyone else, uses or intends to use the property in a way that brings the property within the definition of crime-used property.

Jenkins J at first instance refused to make the declaration.  The conduct did not fall within section 146(1)(a) because it was straining ordinary speech to say that, because the fence and gates were used in connection with the offence, the premises were also used in that connection.  However, because Tapley was shot by White while he was on the premises and the acts of White were “in connection with” the ultimate fatal shot which was discharged with an intent to kill, then White’s conduct fell within section 146(1)(c).  However, this did not mean that White made use of the property in committing the murder within the meaning of section 147.  Although the locking of the gates may have assisted White in committing the murder, the original reason for locking the gates was not to facilitate the commission of that offence.  In doing so, Jenkins J held that a person did not make “criminal use” of the property within the meaning of section 147 where it was crime-used by virtue only of section 146(1)(c).

The WA Court of Appeal allowed an appeal by the DPP.  In doing so, the Court of Appeal found that the property had been “used” in two ways bringing the property within section 146(1)(a):  by the intentional locking of the gates in order to prevent Tapley from leaving the property and allowing him to confront and deal with him; and by storing Tapley’s body away from public view ending its disposal.  These two uses were in connection with the commission of the offence of wilful murder, and it clearly therefore satisfied the requirements of section 147.

The High Court unanimously upheld the decision of the Court of Appeal.  In doing so, however, it did not have to consider the dispute about whether or not, on the facts of the case, section 146(1)(a) was engaged.  It held that section 147 applied equally in respect of conduct falling within section 146(1)(c) as it did in relation to conduct falling within section 146(1)(a) and (b).  In doing so, it therefore rejected the rather strained construction placed on the legislation by Jenkins J.

White v Director of Public Prosecutions (WA) [2011] HCA 20

Prevention is better than cure

Today the High Court allowed an appeal from the NSW Court of Appeal holding (by majority) that Jemena Gas Networks (NSW) Ltd was entitled to be paid an amount from the Mine Subsidence Compensation Fund to meet the proper and necessary expense of preventing or mitigating cumulative subsidence from longwall mining that Jemena anticipated was likely to cause damage to its pipeline.

Jemena owns and operates a gas pipeline that runs from Moomba to Sydney. The pipeline runs underground at the point where it crosses Mallaty Creek and traverses an area of land which is subject to a mining lease held by a subsidiary of BHP Billiton Limited relating to the West Cliff Colliery. The pipeline runs above a series of “panels” used for underground longwall mining. Expert consultants predicted that there would be subsidence where the pipeline crosses Mallaty Creek when a certain panel was mined and that the subsidence would increase as subsequent longwall panels were mined. Other experts advised that mitigating works would be needed as a result of future mining from subsequent longwall panels. Jemena undertook excavation work to prevent the pipeline being damaged by the predicted subsidence. Subsidence, broadly corresponding with that predicted by Jemena’s experts, subsequently occurred.

The Fund, to which colliery proprietors make compulsory contributions pursuant to the Act, is administered by the Mine Subsidence Board.  Under s12A(1)(b) of the Mine Subsidence Compensation Act 1961 (NSW), owners of improvements on land may make claims for payment from the Fund for expenditure incurred in preventing or mitigating damage to those improvements that, in the opinion of the Board, “the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place”.  Jemena made a claim against the Fund for the costs of preventative and mitigatory works performed by it on the pipeline.

Relying on existing authority, the Board and subsequently the NSW Land and Environment Court and the NSW Court of Appeal considered that Jemena could only make a claim if the whole of the subsidence had occurred before the expense of preventative works was incurred.

By majority, the High Court held that claims under s12A(1)(b) are not confined to expenditure incurred only once a subsidence has in fact occurred.  Rather, claims under s12A(1)(b) extend to expenditure that, in the opinion of the Board, the owner could reasonably have anticipated would otherwise have arisen, or could reasonably anticipate would otherwise arise, from a subsidence that has taken place prior to that damage arising, even though at the time when the expense is incurred or proposed there has been neither subsidence or damage.

Jemena Gas Networks (NSW) Limited v Mine Subsidence Board [2011] HCA 19

A win for ASIC in the High Court

The High Court today allowed an appeal brought by ASIC against a decision of the Full Federal Court. The Full Court had allowed an appeal by Lanepoint Enterprises Pty Ltd from the decision of Gilmour J in which ASIC was granted leave to apply for a winding up order, and ordered that Lanepoint be wound up in insolvency pursuant to s 459A of the Corporations Act. Lanepoint had sought to establish its solvency so as to rebut a presumption of insolvency under s459C(2)(c) of the Act. However, Gilmour J held that certain transactions relied upon by Lanepoint to establish its solvency were ineffective to reduce its indebtedness to a related company and the presumption was therefore not rebutted.

The Full Court accepted the argument of Lanepoint that the discretion exercised by Gilmour J in ordering that the company be wound up rather than to stay or dismiss the proceedings, had miscarried.  The Full Court considered the winding up application to be an inappropriate vehicle for the determination of Lanepoint’s solvency.

The High Court unanimously allowed ASIC’s appeal from the decision of the Full Court.  Lanepoint was unable to point to further evidence relevant to rebutting the presumption of insolvency that was not adduced at the hearing of the winding up application. It was not necessary that other parties be joined to the proceedings before the question of Lanepoint's solvency should be determined.  Rather, the postponement of the winding up application would have added to the considerable delays that had already been encountered by ASIC since the application had been filed.

ASIC v Lanepoint Enterprises Pty Ltd [2011] HCA 18