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.