Judgments to be delivered this week in the High Court of Australia

This week the High Court will deliver judgment in four cases.

On Wednesday, 26 June 2013 the Court will deliver judgment in X7 v Australian Crime Commission.  This case is a challenge to the power of the Australia Crime Commission to conduct an examination of a person charged with an indictable offence where the examination concerns the subject matter of the offence so charged.  The challenge is mounted firstly as a question of the proper construction of the Australian Crime Commission Act 2002 (Cth), and if properly construed the Act does authorise such an examination whether the Act itself is, to that extent, invalid on the basis that it impermissibly interferes with the administration of justice in the exercise of Commonwealth judicial power and/or is contrary to section 80 of the Constitution.

On Thursday, 27 June 2013 judgment will be delivered in three cases.  First in the list is Director of Public Prosecutions v JM, an appeal from the Victorian Court of Appeal in a share market manipulation case.  In essence the question for consideration is whether the meaning of the phrase “artificial price” within the meaning of section 1041 of the Corporations Act 2001 is to be informed by the US jurisprudence relating to “cornering” and “squeezing”, concepts derived from trading in the futures markets that have no practical application in the equities market with which the prosecution of the respondent was concerned.  More generally, the cases raises important issues in relation to statutory construction, and in particular the use, and utility, or extrinsic material.

Judgment will also be delivered in Nguyenv The Queen, an appeal by Dang Khoa Nguyen in criminal proceedings that have already made their way to the High Court on a previous occasion (see R v Nguyen (2010) 242 CLR 491, an appeal involving Dang Khoa Nguyen’s co-accused, Dang Quang Nguyen).  At issue is whether the trial judge ought to have left for consideration by the jury an alternative charge of manslaughter (by acting in concert, by extended common purpose, or by aiding and abetting) where the perpetrator had been conceited of murder.  A further issue of more general importance is the extent to which a trial judge is entitled to have regard to the manner in which an accused has conducted the defence in determining whether or not to leave an alternative charge for the jury’s consideration.  This judgment is being delivered only 3 weeks after the hearing.

Finally, the Court will deliver judgment in Issa v The Queen and Elias v The Queen, in which the Court will consider the extent of the principle in R v Liang & Li, whereby a sentencing court imposing a penalty for a State offence is required to have regard to the fact that the accused could have been charged with a different offence under State law that carried a lesser penalty.  At issue in the appeal is whether or not in sentencing a person for a State offence, the principle in R v Liang & Li requires a court to take into account that the person could have been charged with a similar offence for the same conduct under a Commonwealth law which carried a lesser maximum penalty. Again, this judgment is being delivered relatively quickly, with the argument have been heard on 30 May 2013.

High Court upholds Queensland liquor laws on Palm Island

In today’s decision in Maloney v The Queen the High Court of Australia unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with section 10 of the Racial Discrimination Act 1975 (Cth).

Ms Maloney is an Indigenous resident of Palm Island in Queensland.  She was convicted of the offence of being in possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to section 168B of the Liquor Act 1992 (Qld).  Schedule 1R of the Liquor Regulation, made under the Act, has the effect of restricting the nature and quantity of liquor which people may have in their possession in public areas on Palm Island.  The Palm Island community is composed almost entirely of Indigenous people.

Ms Maloney challenged her conviction, arguing that Schedule 1R of the Liquor Regulation contravened the Racial Discrimination Act.  By section 10 of that Act, where a law has the effect that persons of a particular race enjoy a right to a more limited extent than persons of another race, the persons adversely affected shall enjoy that right to the same extent as the persons of that other race.  Ms Maloney argued that the Liquor Regulation affected her enjoyment of three rights:  the right to equal treatment before courts and tribunals; the right to own property; and the right to access places and services intended for use by the general public.  This was disputed by the State of Queensland.

The State of Queensland also argued that the Liquor Regulation is a “special measure” taken for the sole purpose of securing the adequate advancement of a racial group requiring such protection as may be necessary to ensure that group’s equal enjoyment or exercise of human rights and fundamental freedoms.  If so, then section 10 did not apply.

The six-member bench of the High Court unanimously held that the Liquor Regulation constituted a “special measure” within the meaning of the Act.  In doing so, the Court rejected the proposition that a necessary prerequisite for a “special measure” was that there had been consultation (much less “adequate consultation”) with the Indigenous community.  They also rejected the proposition that the Liquor Regulation was not a “special measure” because there were less restrictive means of achieving the undisputed aim of addressing alcohol-related violence on Palm Island.

Their Honours differed in relation to whether or not the Liquor Act resulted in a “right” being enjoyed “to a more limited extent”.  Kiefel J held that none of the three rights identified by Ms Maloney was affected by the Liquor Regulation.  Of the remaining judges:

• French CJ and Gageler J rejected the proposition that Ms Maloney’s right to equal treatment before courts and tribunals had been affected (holding, in effect, that this right was directed towards procedural laws and not substantive laws).  Hayne J (with whom Crennan J agreed) doubted that this right had been affected but did not need to decide the question, and Bell J considered it unnecessary and therefore inappropriate to decide;
• French CJ, Hayne J (with whom CrennanJ agreed), Bell J and Gageler J held that Ms Maloney’s right to own property had been affected;
• French CJ rejected the proposition that the Liquor regulation affected Ms Maloney’s right of access to a place or service intended for use by the general public.  Hayne J (with whom Crennan J agreed) doubted that this right had been affected but did not need to decide the question.  Bell J and Gageler J held that this right was affected.

Beyond the specific determination of the validity of the Liquor Regulation, the decision provides a detailed and important examination by the High Court of a number of issues.   These include:

• the proper approach to identifying the “rights” referred to in section 10, and the extent to which they are “limited” by a particular legislative provision;
• the proper function of the courts in determining whether or not a particular law is a “special measure”, and the deference to be given to the legislative and executive arms of government in that determination;
• the relevance (or not) of determinations by international bodies in giving content to the term “special measures”;
• the relevance of prior consultation with affected communities in determining whether or not a law was a “special measure”;
• more generally, the proper approach of the courts in finding “constitutional facts” for the purposes of ruling upon invalidity of legislation;
• the relevance of “proportionality” in determining whether there has been a contravention of section 10, and in determining whether or not a law is a “special measure”.

The judgment (in which each of the six members of the Court wrote separately, running to 141 pages) will require careful and detailed reading in order to ascertain precisely what has been held in relation to these broader issues, in particular the first issue as to the identification of the relevant rights and their limitation in order to ascertain whether section 10 is engaged.

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

Last week the High Court of Australia granted special leave to appeal in five cases.

The case of Munda v State of Western Australia is a sentencing appeal in which the Court will be called upon to consider similar issues to the case of Bugmy v The Queen which is currently listed for hearing on 6 August 2013.  The cases raise two issues of general importance.  The first is the application of the principles articulated in R v Fernando (1992) 76 A Crim R 58, in which Wood J considered the relevance of Aboriginality in sentencing.  The second is the exercise of the residual discretion of an intermediate appellate court not to interfere with the sentence in a Crown appeal even where the sentence is erroneously lenient (the principles were recently discussed in Green v The Queen [2011] HCA 49).

In PEB v The Queen the appellant was convicted on charges of indecently dealing with a child.  The appellant, the complainant’s step-grandfather, mounted a positive case at trial to the effect that the incidents could not have occurred on the occasions alleged.  One ground of appeal to the Qld Court of Appeal was that the verdicts were unsafe and satisfactory.  It is well-established that such an appeal requires the Court of Appeal to make an independent assessment of the whole of the evidence to determine whether the verdicts could be supported.  This was done in a mere 13 paragraphs that described the evidence and the cases of the prosecution and the defence, and a further five short paragraphs in which that evidence was assessed.  At issue in the High Court is the adequacy of the reasons given by the Qld Court of Appeal in determining that the verdicts were not shown to be unsafe and unsatisfactory.

In Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited the High Court will consider the principles to be applied in determining whether or not legal professional privilege is waived by the accidental production of privileged documents in the course of discovery in civil proceedings.

In Daly v Thiering the High Court will consider the question of whether or not the Lifetime Care and Support Authority established under the NSW Motor Accidents legislation and/or a Compulsory Third Party insurer is liable to pay for gratuitous care and assistance provided to an injured person.  The answer to that question has subsequently been made clear by statutory amendment, but the amendment has no retrospective effect so that the case is still worth $40 million to the motor accidents insurance industry.

Finally, Magaming v The Queen will consider the constitutionality of the mandatory minimum sentences of five years (for a first offence) imposed by the Migration Act 1958 (Cth) for offences relating to people smuggling.  The NSW Court of Criminal Appeal unanimously upheld the validity of the provisions, but Allsop P (in comments with which Bathurst CJ specifically agreed) provided a withering attack on the humanity of the sentences when applied (as they were in this case) to the conviction of “an illiterate and indigent deckhand”.  It was also an attack on the humanity of the decision to prosecute on the particular people-smuggling charge, instead of a lesser charge in which the individual circumstances of the defendant could have been taken into consideration in sentencing.

Judgments tomorrow in the High Court of Australia

Tomorrow, 5 June 2013 the High Court will deliver judgment in three cases.

The first is Kakavas v Crown Melbourne Limited, a case involving a chronic gambler seeking to recover $20.5 million from the operator of Melbourne’s Crown Casino.  The appellant was suffering from a psychiatric condition known as pathologic gambling.  He was also subject to an exclusion order from Star City Casino in Sydney (issued by the NSW Police) as a result of which he was also prohibited from entering the Crown Casino in Melbourne and any winnings payable to him from gambling were forfeited to the State of Victoria.  It is apparent Crown Casino was aware of the appellant’s gambling habits and financial difficulties over a long period of time, but nonetheless the appellant was provided with various inducements to return to the casino and to gamble.  At issue in the High Court is whether the Casino acted unconscionably within the meaning of section 51AA of the Trade Practices Act 1974 by inducing him to gamble when it knew or ought to have known that he was suffering from a “special disadvantage”, namely pathological gambling.  Also at issue is whether or not the Casino acted unconscionably in inducing him to gamble in circumstances where it knew or ought to have known that by reason of the interstate exclusion order he was unable to retain any winnings from gambling at the Crown Casino. 

The second is State of NSW v Kable, the latest instalment of the long-running saga involving Gregory Wayne Kable.  At issue before the High Court is whether or not obedience to orders of a State Supreme Court that were valid on their face (but which were subsequently found to be ineffective by virtue of the invalidity of the authorising Act) provides a defence of lawful authority at common law to the claim for false imprisonment.

The third is Agius v The Queen.  At issue in the appeal is whether a person commits the offence of conspiracy to defraud contrary to section 135.4 of the Commonwealth Criminal Code where the agreement underlying the alleged conspiracy was formed prior to the commencement of that section, but the agreement was given effect to after that commencement.