Coming up in the High Court of Australia

There are four appeals being heard in the High Court of Australia in the two-week sittings commencing on Tuesday, 3 September 2012.

The first is an appeal from the Full Court of the Family Court in Stanfordv Stanford.  At issue in this case is whether (and if so in what circumstances) the Family Court has jurisdiction to make an order for property settlement pursuant to section 79 of the Family Law Act 1975 where a marriage is still intact but where a physical separation has been forced upon the parties by reason of one of the parties’ health.  The circumstances of the elderly parties in this case were such that the wife, by reason of her physical and mental frailty, required high care in a nursing home. In contrast, the husband was of considerably good health and wished to remain living in this home, which was within his ability. The proceedings were initiated by the wife’s daughters who asked that the former matrimonial home be sold so that the proceeds of sale could be spent on care for their mother. The appeal to the High Court raises numerous related issues, but central to the case is the constitutional question of the scope of the term “matrimonial cause” in placitum 51(xxii) of the Constitution.

Next is the appeal in Public Service Association and Professional Officers’ Association Amalgamated of NSW v Director of Public Employment the High Court granted special leave to appeal from the Industrial Court of NSW in a case that raises the question of whether a provision in the NSW Industrial Relations Act 1996 that requires the Industrial Relations Commission to give effect to certain aspects of government policy on public sector employment contravenes the so-called  Kable principle.

Westfield Management Ltd v AMP Capital Property Nominees Ltd is an appeal from the NSW Court of Appeal arising out of a dispute between UniSuper and Westfield whether to wind-up their joint venture investment scheme in the Karrinyup Regional Shopping Centre in Perth.  At issue is whether or not the Unitholders’ and Joint Venture Agreement properly construed has the effect that UniSuper cannot vote to wind-up the scheme under section 601NB of the Corporations Act without the prior written consent of Westfield, and if so whether the Agreement is to that extent unenforceable as being contrary to the public interest.

Finally, in Google Inc v ACCC is an appeal from the Full Court of the Federal Court of Australia in which the principal issue is whether Google has engaged in misleading and deceptive conduct as a result of displaying an advertiser’s web address as a sponsored link in response to an enquiry made of the Google search engine by search terms which consist of or include the name of a competitor of the advertiser. This conduct is said to amount to a misrepresentation of a commercial affiliation between the advertiser and its competitor by displaying the advertiser’s web address in collocation with information concerning the competitor.

Grants of Special Leave to Appeal in the High Court of Australia

On Friday, 17 August 2012 the High Court of Australia granted special leave to appeal in four cases.

The first is Baini v The Queen, an appeal from a decision of the Victorian Court of Appeal that considered the circumstances in which certain counts in an indictment ought to be severed, and whether or not the failure to sever occasioned a miscarriage of justice in relation to the whole of the indictment, or merely the count not severed.

Special leave was granted in two taxation cases.  The first is Mills v Commissioner of Taxation, an appeal from a decision of the Full Federal Court which held that because the purpose of a scheme involving the issue of unsecured subordinated notes was to enable subscribers to obtain imputation credits, and the imputation credits were not simply a natural incident of the capital raising being undertaken, the Commission of Taxation was entitled to make a determination that no imputation benefits would be allowed.  The second is Commissioner of Taxation v Consolidated Media Holdings Ltd, an appeal from a decision of the Full Federal Court which allowed an appeal by the taxpayer against an assessment which included a capital gain of around $400m arising from an off market share buy-back by its wholly-owned subsidiary, Crown Melbourne Limited.

Finally, special leave to appeal was also granted in Commissioner of Police v Eaton, an appeal from a decision of the NSW Court of Appeal which held that the NSW Industrial Relations Commission had jurisdiction to determine an unfair dismissal claim made by a probationary constable, notwithstanding the provisions of section 80 of the Police Act 1990 which enabled a probationary police officer to be dismissed at any time and without giving any reason. 

In the High Court of Australia commencing 14 August 2012

Next week in the High Court of Australia, on Wednesday, 15 August 2012 at 10:15am judgment will be delivered in two cases.

The first is Baker vThe Queen. In this case 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?

The second is Minister for Home Affairs v Zentai.  This is yet another step in protracted attempts to extradite Charles Zentai to Hungary in order to face trial in respect of alleged war crimes.  At issue in the proceedings is whether or not extradition is precluded where the specific offence for which extradition is sought  was not an offence under Hungarian law at the relevant time (the conduct having occurred in 1944, and the war crime offence not having been enacted until 1945), even though the conduct constituted another offence (ie murder) at the relevant time.

The High Court will also pronounce orders in Big Tobacco’s challenge to the Commonwealth Government’s plain packaging legislation, although the reasons for judgment will not be delivered until a later date.

The High Court will also hear argument in three cases next week.

On Tuesday, 14 August the Court will hear argument in Andrews v ANZ Banking Group Ltd, a group proceeding challenging the validity of various exception fees charged on overdraft account, dishonour fees, overdrawn credit card accounts etc.  The issues in the High Court include whether the jurisdiction of the courtsin relation to penalties is available only at law or whether it is still alive in equity, and whether a party can only be relieved against a penalty where it becomes payable for a breach fo contract (that limitation having been imposed by the House of Lords in Expert Credit Guarantee Department v Universal Oil Products Co).

On Wednesday, 15 August the Court will hear argument in two cases from NSW in which the question is whether or not the costs recovery limitations in the Legal Profession Act 2004 that apply in relation to a claim for “personal injury damages” apply in cases where the cause of action sued upon is an intentional tort (in these cases, assault and false imprisonment).

On Thursday, 16 August the Court will hear argument in Douglass v The Queen, a case which raises the important question of the application and discharge of the burden of proof where the prosecution case depends solely on an out of court statement and unsworn evidence of a young child contradicted in court by the accused’s sworn evidence where that sworn evidence is not rejected by the trial judge.

High Court restores conviction for making document in connection with terrorist act

The High Court of Australia in The Queen v Khazaal today upheld a prosecution appeal and reinstated the conviction and sentence of Belal Khazaal, who had been convicted in the NSW Supreme Court of an offence against section 101.5(1) of the Commonwealth Criminal Code, in that he made a document connected with assistance in a terrorist act, knowing of that connection.

The document the subject of the charges was an electronic book entitled Provisions on the Rules of Jihad: Short Judicial Rulings and Organizational Instructions for Fighters and Mujahideen Against Infidels.  The book contained material concerning Islam and jihad that Khazaal had downloaded form the internet, together with a dedication, foreword and other short passages written by Khazaal.  The e-book was submitted to the administrators of the “Al Maqdese” website which, according to expert evidence adduced at the trial, was a website linked to the terrorist group Al-Quaeda, and which contained a number of publications by leaders of known terrorist organisations.  The website also, according to the expert evidence, contained benign material on Islamic issues.

The introduction to the e-book, written by Khazaal, was as follows:

“This is but a short message I hastily prepared in response to a request from brothers working to support this religion. I was requested to prepare it, in this fashion, to serve as a reference to all brothers or small cells desiring to support this religion.

With God’s help I set on its compilation and I completed it in few days. I am however convinced that had I sufficient time and had I been settled in my residence I would have produced a better job than this work which has been conceived in haste. However, better ‘haste’ than never.

I pray to the Almighty that this essay would be of benefit to everyone working to support this religion. I seek the Almighty’s reward and I seek martyrdom for his sake. I do so running towards it not away from it.

I beseech my brothers who read this message to pray that I may attain martyrdom.”

Chapters 1-9 of the e-book contained justifications for jihad emanating from religious sources. Jihad was defined as meaning “fighting the infidels to make God’s word supreme.” The recurrent themes in this part of the e-book were that jihad is a religious duty, that militant jihad (that is, the killing of “infidels”), is the best form of jihad, and that jihad may involve attaining “martyrdom”.

Chapter 10 of the e-book (entitled “Reasons for Assassination”) included commentary on: important characteristics for members of an assassination team; training members of an assassination team; stages of the assassination process; various methods of assassination, including wireless detonation, letter bombing, booby trapping or detonating a car, sniping, smothering, hitting with a hammer and booby trapping a room; and targets “that should be assassinated”. The targets listed in Chapter 10 included persons holding various public offices, including “diplomats, ambassadors and the military”, of “enemy nationalities” or of the Jewish, Christian, Hindu and Buddhist religions, a group called “Arab atheists”, and “[h]olders of key positions” in “original countries of atheism”, the list of which included Australia.

Evidence was also adduced as to Khazaal’s occupation as an accredited journalist who regularly contributed to an Islamic affairs magazine, and had a large personal collection of materials relating to Islam which cinluded various documents, tapes and videos.

Khazaal did not give evidence at his trial.  There was no real factual dispute about the making of the e-book or its content.  What was in issue was what inferences could be drawn from that material.

The elements of the offence with which Khazaal was charged required the Crown to establish that:

(a) Khazaal made the e-book;

(b) the e-book was connected with assistance in a terrorist act; and

(c) the Khazaal was aware of the connection between the e-Book and assistance in a terrorist act.  It was not an element of the offence that Khazaal intended to provide assistance in a terrorist act. 

However, Khazaal sought to invoke an exception to the offence contained in section 101.5(5) which provides that the offence provision does not apply if the collection or making of the document was not intended to facilitate … assistance in a terrorist act.”  Khazaal’s case was that the evidence taken as a whole raised a real possibility that Khazaal did not make the e-book with the intention of facilitating assistance in a terrorist act, and therefore the jury could not convict Khazaal unless satisfied beyond reasonable doubt that the making of the e-book was intended to facilitate assistance in a terrorist act.  The issue ultimately raised in the High Court was whether or not the evidence in fact suggested a reasonable possibility that the making of the e-book was not intended to facilitate assistance in a terrorist act, sufficient to discharge Khazaal’s evidential onus necessary to invoke the exception provision in section 101.5(5).

The High Court accepted that satisfying that evidential onus required no more than slender evidence, and that for the purposes of establishing whether the onus had been discharged the evidence should be taken at its most favourable to Khazaal. 

However, the High Court held that in the absence of any evidence of his intention in making the e-book, the evidence that Khazaal had acted lawfully in the past as an accredited journalist interested in Islam, and had published material about Islam, was incapable of supporting or raising an inference that his making of the e-book was a lawful activity not intended to facilitate a terrorist act. Furthermore, the e-book contained information and instructions to any possessor and others in methods of assassination of identified persons described as “targets”. For that reason, the e-book was incapable of raising or supporting an inference that Khazaal’s intention in making the e-book was lawful, scholarly, or educational in the sense of making or compiling an inoffensive reference work.  As Heydon J noted, “the type of “education” and “scholarship” on jihad that the book supplied was instruction on who should be assassinated and how. Similarly, an intention to support a religion which, in [Khazaal’s] perception, encourages assassination does not indicate a reasonable possibility that making the book was not intended to facilitate assistance in a terrorist act involving assassination. A reasonable possibility of that type cannot exist where it is a tenet of the religion, in [Khazaal’s] perception, that terrorist acts be committed.”

Khazaal also argued that the words “connected with” required the Crown to establish that the e-book itself must have been capable of directly assisting in the commission of a terrorist act.  This contention was rejected.  Because the e-book contained information and instructions to possessors and others in methods of assassination of identified persons described in the e-book as “targets”, on any view the e-book had an obvious and direct connection with assistance in the terrorist act particularised in the indictment.

This week in the High Court of Australia

There are three cases being argued in the High Court of Australia this week commencing Tuesday, 7 August 2012.

The first is RCB v The Honourable Justice Forrest, to be heard on Tuesday and Wednesday.  This case raises important issues relating to the operation of the Convention on the Civil Aspects of International Child Abduction (“Hague Convention”).  Among the issues to be considered are whether or not procedural fairness requires a child to be independently and separately represented whenever it appears that a child may object to being returned to a foreign country pursuant to the Hague Convention, and if so whether section 68L(3) of the Family Law Act 1975 (which is to the effect that a child in abduction proceedings may only be separately represented in exceptional circumstances) contravenes Chapter III of the Constitution.

On Wednesday and Thursday the High Court will hear argument in Sweeney v Thornton.  In this case the applicant for special leave/appellant, a learner driver, lost control of the vehicle in which she was learning to drive as a result of entering a bend at excessive speed.  She sued the respondent, who was teaching her to drive, in negligence for failing to advise her as to the speed at which she should have entered a bend, or to take control of the vehicle.  At issue in the appeal is the content of the duty of care owed by an instructor to a learner driver, and whether in the circumstances of the case the NSW Court of Appeal had erred in its findings as to breach of duty and of causation.

On Thursday and Friday the High Court will hear argument in Cooper v The Queen.  This case raises a number of issues, the most interesting of which is perhaps the question of whether or not the defence counsel’s failure to lead evidence of certain mental health service records which indicated the deceased suffered from a psychosis that could be exacerbated by drugs and alcohol, and the failure to cross-examine the deceased’s grandmother concerning the deceased’s mental health, gave rise to a miscarriage of justice.