In the High Court commencing 28 February 2012

The High Court has now released details of what case, are going to heard (and when) over the next two weeks and so I have set out below an updated version of last week’s post, and included a case that I omitted.

First up on Tuesday, 28 February 2012 is the appeal in Baker v The Queen.  In this case the appellant invites the High Court to create an exception to the rule against hearsay of the kind considered in, but not determined by, Bannon v The Queen.  The issue is this:  in a joint trial where the Crown relies upon admissions made by an accused  in proof of guilt of the accused, and the admissions tend to exculpate a co-accused, should a trial judge be required (or have a discretion) to direct that the evidence of the accused’s admissions is also evidence in relation to the co-accused and should be considered as evidence in exculpation of the co-accused?

On Wednesday and Thursday the Court will hear argument in in Forrest v ASIC, an appeal against the Full Federal Court’s decision upholding an application by ASIC for civil penalties to be imposed on Twiggy Forrest and Fortescue Metals.  The proceedings related to alleged misrepresentations about to contracts entered into with a number of Chinese companies for the construction of certain railway infrastructure for Fortescue Metal’s Pilbara iron ore project.  At first instance ASIC’s application was dismissed in one of its many spectacular failures in the courts in recent years.  At issue will be the extent to which, and the circumstances in which, a statement of opinion (and in particular an opinion as to the effect of a contract) will be held to be misleading.

Then, on Friday, 2 March 2012 the appeal in R v Khazaal is listed for hearing.  This is, unusually, a Crown appeal against a decision by the NSW Court of Criminal Appeal upholding an appeal against conviction but ordering a retrial.  The accused had been convicted of terrorism-related charges arising out of his publication of an electronic book entitled “Provisions on the Rules of Jihad – Short Judicial Rulings and Organisational Instructions for Fighters and Mujahedeen against Infidels.”  The relevant provision of the Criminal Code (section 101.5) makes it an offence to make a document if the document is connected with preparation for, or assistance in, a terrorist act, and the person is aware of that connection.  However, it is not an offence if the making of the document was not intended to facilitate preparation for, or assistance in, a terrorist act.  At issue in the appeal is where the onus lies in proving or disproving that intention.

The following week commencing on Monday, 5 March 2012 is the further argument in Harbour Radio Pty Ltd v Trad which was adjourned after the original estimate proved to be insufficient.

On Tuesday and Wednesday, 6 and 7 March 2012 the Court will hear argument in a series of related cases that will either be reported as National Competition Council v Hamersley Iron Pty Ltd or as Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal.  This case involves Part IIIA of the Competition and Consumer Act 2010.  Part IIIA provides a regime whereby certain pieces of privately-owned infrastructure that cannot be economically duplicated can be “declared”, with the consequence that they must be made available for use by competitors. Upon an application by Fortescue Metals Group, privately-owned railway facilities in the Pilbara used by Hamersley Iron and Robe River Mining to transport iron ore were declared for a period of 20 years.  At issue in this appeal is which of two different methods (the “social cost approach” or the “private profitability approach”) should be used in determining whether or not “it would be uneconomical for anyone to develop another facility”.

Finally, on Thursday 8 March 2012, R v Getachew raises for consideration the burden of proof in relation to the mental element for the offence of rape where the complainant was asleep at the time of penetration, and the evidence is silent as to whether or not the accused knew the complainant was asleep, ought to have known the complainant was asleep, or thought the complainant was awake.