Today's judgments in the High Court of Australia

The High Court delivered judgment in two cases today.

In Li v Chief of Army the High Court quashed a conviction for the service offence of creating a disturbance on service land.  Major Li was involved in an incident with Andrew Snashall, a Commonwealth public servant, following statements made by Mr Snashall which Major Li found offensive and suspected to have been racially motivated.  Major Li refused to leave Mr Snashall's office when asked him to do so, followed Mr Snashall out of the office while speaking in a raised voice, forcefully pushed against the office door when Mr Snashall returned and attempted to close it, and stood close to Mr Snashall's face speaking in an agitated and aggressive manner. 

Major Li was charged before a restricted court martial with the service offence of having created a disturbance on service land.  The judge advocate directed the court martial that the prosecution did not need to prove that Major Li intended to create a disturbance, but needed to prove only that Major Li intended to engage in the acts that amounted to a disturbance.  That direction was upheld by the Defence Force Discipline Appeal Tribunal and subsequently by the Full Court of the Federal Court of Australia.

The High Court unanimously allowed the appeal.  The High Court held in order to convict for the offence of “creating a disturbance”, it must be proved that the person charged intended to do the act, that the act resulted in a disturbance, and that the person charged either believed that the act would result in a disturbance or was aware of a substantial risk that the act would result in a disturbance and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk.  The High Court held, however, that a “disturbance” is a non-trivial interruption of order and that it is not necessary to the existence of a disturbance that there be violence or a threat of violence.

In BCM v The Queen the High Court unanimously dismissed an appeal from a decision of the Queensland Court of Appeal which upheld the conviction of BCM on two counts of unlawfully and indecently dealing with a child under 12 years.  While the High Court accepted BCM’s complaint that the Queensland Court of Appeal’s reasons did not sufficiently disclose its assessment of the capacity of the evidence to support the verdict, and in particular its reasons for accepting the evidence of the complainant, notwithstanding various inconsistencies in that evidence.   The High Court held that those inconsistencies were to be considered in light of her age at the date of the offences and the intervals between the offending, her first interview with police and her evidence.  While the Court of Appeal’s reasons were inadequate, it was correct to treat as believable the complainant’s explanation that she was scared and embarrassed as the reason for her delay in coming forward.

Cases being heard this week in the High Court of Australia

There are five cases listed for hearing this week in the High Court of Australia.

The first, commencing on Tuesday, 26 November 2013 is the case of The Ship Go Star v Daebo International Shipping Co Ltd.  In this case the ship MV Go Star was the subject of a chain of time charterparties.  The ship was ultimately let to Daebo Shipping Company Ld, who let it to Nanyuan Shipping Co Ltd. When the ship was delivered by Daebo to Nanyuan it had substantial fuel bunkers on board.  Daebo invoiced Nanyuan for the hire of the ship and for the value of the fuel bunkers at the time of delivery.  The Go Star then sailed from Shanghai to Fangcheng to load cargo, on the instructions of Nanyuan.  Nanyuan purported to cancel or withdraw from the subcharter with Daebo.  The shipowners then withdrew the Go Star under the terms of the head charterparty.  At the time of the withdrawal, the Go Star was still at Fangcheng, within the territorial waters of the People’s Republic of China. Daebo claimed that the shipowners were liable for the tort of procuring Nanyuan to breach its contractual obligation to Daebo under the sub-charterparty to pay hire and to pay for the value of the bunkers transferred to it.  This claim failed at trial because the trial judge held that the applicable law was the law of China, and there was no such tort known to the law of China.  On appeal, it was held that the applicable law was the law of Singapore, on the basis that the interference with contractual relations was effected by email communications sent from China to Singapore, and intended to be and were in fact acted upon in Singapore. As there was no evidence led as to the law of Singapore, Australia law was applied to determine whether there had been any interference with contractual obligations.  The question that arises on appeal is as follows:  where a corporation is induced to breach its contractual obligations, is the place of the wrong the location of the individual who causes the corporation to breach its contract at the time when that individual is induced to breach the contract, or is it the location where the breach in fact occurs?

On Wednesday, 27 November 2013 the High Court will hear argument in two related appeals:  Barbaro v The Queen and Zirilli v The Queen.  In each case the appellants pleaded guilty to various drug-related offences under the Commonwealth Criminal Code.  The appellants had entered into a plea agreement with the Crown.  The Crown had provided an indicative sentencing range to the appellants’ legal representatives.  A practice had developed in Victoria to prepare such an indicative sentencing range in order to make it available to the Court is requested by the court, or if the prosecutor believed there was a significant risk the court would fall into error if a submission as to range was not made.  The sentencing judge made it plain that she did not want to hear submissions as to range from anyone, and would not take them into account.  The sentencing judge proceeded to impose sentences outside the prosecution’s indicative sentencing range.  At issue in the appeal is the extent to which the sentencing court is required to have regard to the prosecution’s indicative sentencing range, and the circumstances in which that indicative sentencing range should be taken into consideration.

On Thursday, 28 November 2013 the Court will hear argument in Commonwealth Minister for Justice v Adamas.  This case considers the interaction between the extradition treaty with Indonesia, and the Extradition Act 1988 (Cth).  In particular, it will consider the proper role of a court undertaking judicial review of the decision of the Attorney-General to determine that it would not be “unjust, oppressive or incompatible with humanitarian considerations” to surrender the respondent to Indonesia. 

On Friday, 29 November 2013 the Court will hear argument in Smith v State of Western Australia.  In that case the appellant was convicted on two counts of indecent dealing with a girl under the age of 13 years.  Following the return of the verdicts, an envelope was found in the jury room addressed to the trial judge.  The envelope contained a note that said:  “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote.  This has made my ability to perform my duty as a juror on this panel.”  The appellant sought an inquiry into the circumstances of the juror’s note, an application that was refused by the Court of Appeal.  At issue in the appeal is the extent to which a so-called “exclusionary rule” that makes evidence of jurors’ deliberations inadmissible could operate to exclude evidence of the note.

Forthcoming judgments in the High Court of Australia

Today the High Court of Australia will deliver judgments in three cases.

The first is Daly v Thiering, in which the High Court will rule on whether section 130A of the Motor Accidents Compensation Act 1999 entitles a plaintiff to recover damages against a negligent driver (and his third party insurer) for the past attendant care services provided to him, gratuitously, by his mother.

The second is Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd in which the Court will rule on the circumstances in which a claim for legal professional privilege over a document may be waived where the document has been provided to another party in the course of discovery, as a result of a mistake or as a result of inadvertence.  It will rule on whether the recipient of such a document may be restrained from using the document, notwithstanding the waiver.

The third is Karpany v Dietman, in which the Court will rule on whether or not the native title rights and interests of the Narrunga People in South Australia to fish for Greenlip Abalone were extinguished by operation of the Fisheries Act 1971 (SA).

Cases being heard this week in the High Court of Australia

There are two cases listed for hearing in the High Court of Australia this week.

On Tuesday, 5 November 2013 the Court will hear argument in Unions NSW v State of NSW, a challenge to laws enacted by the O’Farrell Government restricting funding and expenditure of political parties, candidates for and members of the NSW Parliament, and third party campaigners.  Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) now prohibits any such person or body from accepting political donations unless the donor is an individual who is enrolled to vote (previously, political donations could also be made by any entity with an Australian Business Number). Section 95F prescribes caps on the amounts of “electoral communication expenditure” that can be made by parties, candidates and third party campaigners for a State election campaign.  Where the expenditure of a party is less than or equal to the cap, section 95G operates to add any electoral communication expenditure made by “affiliated organisations”, namely bodies authorized by a party’s rules to participate in the pre-selection of candidates, or to appoint delegates to the party’s governing body. The vast majority (in dollar terms) of political donations made to the major parties in NSW have been made by organisations and associations rather than by individuals. The party with the highest proportion of non-individual donations is the NSW branch of the ALP.  The plaintiff in these proceedings challenges the validity of the new funding provisions on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters, or a freedom of association, contrary to the Commonwealth Constitution, or alternatively contrary to the NSW Constitution.

On Thursday, 7 November 2013 the Court will hear argument in James v The Queen. James was charged with one count of intentionally causing serious injury and an alternative count of recklessly causing serious injury.  The victim suffered serious injury when he was struck by a vehicle driven by James.  At his trial, James contended that he did not intend to cause serious injury. Alternatively, he claimed that he acted in self-defence, because he was fearful that the victim wanted to try and stab him with a knife. James was convicted on the count of intentionally causing serious injury.  On appeal, James contended that a miscarriage of justice resulted from the trial judge’s failure to leave to the jury possible alternative verdicts of intentionally, or recklessly, causing injury (as opposed to serious injury). In rejecting that contention, the majority of the Court of Appeal noted that the issue in controversy in the trial as to intention did not concern the severity of the injury intended: rather, it concerned whether any injury was intended. The issue was whether the impact between the vehicle and the victim was deliberate or not. It was never suggested that it might be open to conclude that James had struck the victim deliberately with an intention of causing injury, rather than serious injury. Defence counsel throughout the trial had implicitly accepted that, if James had struck the victim deliberately, the requisite state of mind in terms of serious injury must follow. It was obvious that defence counsel had, for forensic reasons, deliberately decided not to ask the judge to direct the jury about the lesser alternatives. The question for consideration by the High Court is whether or not a trial judge has a duty to leave lesser alternative verdicts for consideration by the jury (where they are realistically or fairly open on the evidence) where that would be inconsistent with the forensic position adopted by trial counsel.