Cases to be heard next week in the High Court of Australia

The High Court of Australia will hear four cases next week.

On Tuesday, 4 March 2014 the High Court will hear argument in NSW Registrar of Births, Deaths and Marriages v Norrie.  Section 32DA of the Births, Deaths and Marriages Registration Act 1995 (NSW) enables certain persons who have undergone a “sex affirmation procedure” to apply to the Registrar “for the registration of the person’s sex” in the Register.  A “sex affirmation procedure” is defined to mean a surgical procedure involving the alteration of a person’s reproductive organs carried out for the purpose of assisting a person to be considered to be a member of the opposite sex, or to correct or eliminate ambiguities relating to the sex of the person.  Section 32DC requires the Registrar to either register, or refuse to register, the person’s change of sex. In this case Norrie was born with male sex characteristics, but never identified as male and in the 1980s underwent sex affirmation surgery. Following this Norrie did not identify with either the male or female gender, nor was Norrie physically unambiguously male or female. Norrie applied to for a Recognised Details Certificate (Norrie wasn’t born in NSW) recording the sex as “non specific” rather than male. At the same time, Norrie also registered for a Change of Name certificate, also recording the sex as “non specific”.  The issue that arises in this case is whether section 32DC permits the registration of a person’s sex as anything other than “male” or “female”.

On Wednesday, 5 March 2014 the High Court will hear argument in Thiess v Collector of Customs.  In this case the appellant imported a yacht into Australia. For reasons not entirely apparent to the casual observer, because this yacht had a gross construction tonnage exceeding 150 tons, no duty was payable upon its importation.  However, due to a mistake made by the appellant’s customs broker who believed the vessel to be only 108 tons, the yacht was entered under the incorrect tariff classification and import duty was assessed in the amount of almost $500,000 (along with almost $50,000 in GST payable in respect of the import duty).  Section 167 of the Customs Act 1901 provides a procedure by which a dispute as to the amount or rate at which duty is payable may be resolved.  That procedure calls for the full amount to be paid under protest, and for proceedings challenging that amount or rate to be commenced within 6 months.  The position of Customs is that as no such proceedings for the recovery of the duty had been commenced within the 6 month period, the appellant was not entitled to a refund of the duty paid.  The appellant, on the other hand, argues that section 167 only applies where there had been a demand for payment of duty, because until such time there could be no dispute or payment made under protest. 

On Thursday, 6 March 2014 the High Court will hear argument in Stewart v Atco Controls Pty Ltd (in liquidation).  This a factually complex case, but in essence the liquidator of a company in liquidation commenced proceedings (in the name of the company) against the company’s secured creditor and receivers appointed to the company under the security.  The proceedings claimed damages, as well as relief setting aside the security.  The proceedings failed but, in order to avoid the risks of an appeal, the receivers ultimately paid a settlement sum to the company.  The settlement sum was captured by the security and would ordinarily, therefore, have been available for the benefit of the secured creditor.  However, the liquidator claimed priority over the settlement sum pursuant to the liquidator’s equitable lien for costs, expenses and remuneration incurred in the care, preservation and realization of company assets.  The practical question for determination by the High Court is which of the liquidator and the secured creditor has priority over the settlement sum.

On Friday, 7 March 2014 the High Court will hear argument in two proceedings commenced in the Court’s original jurisdiction challenging the validity of regulations made by the Commonwealth with respect to protection visas.  The cases are brought by Plaintiff S297/2013 and Plaintiff M150/2013.  On 18 October 2013 the newly-elected Abbott Government introduced a new subclass of protection visa, the Subclass 785 temporary protection visa.  The Migration Amendment (Temporary Protection Visa) Regulation 2013 inserted clause 866.222 which had the effect that “unauthorized maritime arrivals” could only obtain a temporary protection visa, not a permanent protection visa.  This regulation was disallowed by the Senate on 2 December 2013.  On 16 December 2013 the Government made Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 which again inserted a clause 866.222 which had the effect that a permanent protection visa could not be granted to an unauthorized maritime arrival.  In each case the plaintiffs claim that the second regulation is invalid, on the grounds that it is substantially the same as the earlier regulation that had within the previous 6 months been disallowed by the Senate (thereby invalid under section 48 of the Legislative Instruments Act 2003).  They also claim it is invalid because, to the extent it deprives them of eligibility for a protection visa, it is inconsistent with section 36(2) of the Migration Act 1958. 

Judgments next week in the High Court of Australia

On Wednesday, 5 March 2014 the High Court will deliver judgment in two cases.

The first is the case of 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.

The second is second is the related cases of Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd, and Woodside Energy Ltd v Electricity Generation Corporation t/as Verve Energy.  Woodside and Verve were parties to a long term gas supply agreement (“GSA”).  Verve purchased gas under the GSA for use in its electricity generation facilities.  Under the GSA, Woodside had firm obligations to supply up to the maximum daily quantity of gas (“MDQ”) nominated by Verve, within a specified tolerance.  Verve was also entitled to nominate up to the supplemental maximum daily quantity (“SMDQ”). Woodside was obligated to use reasonable endeavours to make SMDQ Gas available for delivery.  In determining whether they were able to supply SMDQ on a day, Woodside could take into account all relevant commercial, economic and operational matters.  On 3 June 2008, a fire at a gas production facility owned by Apache (the other principal supplier of gas into the Western Australian market) shut down the supply of gas from that plant.  This event reduced gas supply to the market by some 30%-35%.  Demand for gas then exceeded supply and prices for short term supply increased considerably.  These circumstances prevailed until late September 2008. On 4 June 2008, Woodside informed Verve that they would not be able to supply SMDQ Gas but they could however supply the equivalent quantity of gas at a greater price than the price prescribed under the contract.  Under protest, Verve entered into a series of short term agreements with Woodside for additional gas at this higher price. At issue is the respective rights of the parties under the GSA, and whether Woodside was entitled to refuse to supply the SMDQ Gas.

High Court rules prosecution view of appropriate sentence irrelevant

The High Court has delivered judgment in the related cases of Barbaro v The Queen and Zirilli v The Queen, which examines the role of the prosecutor in making submissions as to the available range of sentences for an offence.

In each case the appellants pleaded guilty to various drug-related offences under the Commonwealth Criminal Code.  Following discussions between the appellants legal representatives and the Crown prosecutor, the appellants had entered into a plea agreement with the Crown.  In the course of those discussions the Crown prosecutor had provided an indicative sentencing range to the appellants’ legal representatives. 

In R v MacNeil‑Brown (2008) 20 VR 677, the Court of Appeal of the Supreme Court of Victoria held that if a sentencing judge asked, the prosecution was bound to submit what the prosecution considered to be the available range of sentences that could be imposed on an offender.  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. 

In the present case, 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.  The appellants challenged their sentences in the Court of Appeal, including on the basis that it was procedurally unfair for the sentencing judge to have refused to hear a submission from the prosecution on the available range of sentences in light of the discussions between the appellants and the prosecution. 

The High Court unanimously dismissed the appeals. The plurality considered that the appellants’ arguments depend on two flawed premises. The first was that the prosecution is permitted (or required) to submit to a sentencing judge its view of what are the bounds of the range of sentences which may be imposed on an offender. That premise, in turn, depended upon a second flawed premise, namely that such a submission is a submission of law.  The plurality held that the prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. A statement of the bounds of the available range of sentences is a conclusion which depends upon identifying (and in many cases assuming) the facts and circumstances relevant to the offence and the offender and striking a balance between the many competing considerations which may bear upon the sentence. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law, or applying those principles to the facts to yield the sentence to be imposed.

Not only is the prosecution not required to make such a statement of bounds to a sentencing judge, it should not be permitted.  This is because the statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.

Gageler J concurred in the result, but departed significantly from the plurality’s reasoning. His Honour considered that a submission that a sentence within a given range would or would not be available to be imposed by a sentencing court in the circumstances of a particular case is a submission of law. It is a submission that a sentence within that range would or would not meet a limiting condition of the discretion conferred on the court to sentence for the offence, and therefore would or would not fall within the limits of a proper exercise of the sentencing discretion.  His Honour regarded R v MacNeil‑Brown correct to hold that the prosecution duty to assist a sentencing court to avoid appealable error requires the prosecutor to make a submission on sentencing range if the sentencing court requests such assistance or if the prosecutor perceives a significant risk that the sentencing court would make an appealable error in the absence of assistance. 

However, in this case the experienced sentencing judge made clear that she would derive no assistance from a prosecution submission as to the available range. The appellants did not suggest that the prosecution in those circumstances failed to perform its duty to assist the court to avoid appealable error. Nor did the appellants suggest that the sentence imposed on them was “unreasonable or plainly unjust” on the facts found by the sentencing judge.  It was for that reason that his Honour joined in the orders of the plurality to dismiss the appeals.

High Court rules juror note about coercion is admissible

The High Court has delivered judgment in Smith v State of Western Australia, which addresses the circumstances in which evidence of the conduct of jury deliberations is admissible in a challenge to a conviction. 

The appellant had been 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 [sic].”  The trial judge was of the opinion that, because the verdict had already been entered, he could not do anything about the note.  However, the trial judge remarked that there were a number of unusual factors surrounding the delivery of the verdict, including that one male juror seemed somewhat upset.

The appellant appealed to the Court of Appeal on the ground that his trial had miscarried due to a juror being physically coerced into changing his verdict to guilty.  The Court of Appeal unanimously dismissed the appeal, holding that the note was inadmissible and that no order should be made directing the Sheriff to make inquiries concerning the allegations raised in the note.

The appellant then appealed to the High Court, which unanimously held that the note was admissible.  The Court affirmed the general exclusionary rule that once a trial has been determined by an acquittal or conviction upon the verdict of a jury, and the jury discharged, evidence of a juror or jurors as to the deliberations of the jury is not admissible to impugn the verdict.  However, the consistently with the rationale for the exclusionary rule, the rule was not absolute. 

The Court noted that if public confidence in the system of criminal justice is to be deserved, criminal misconduct calculated to prevent free and frank deliberation by a jury must not be kept secret lest it become endemic. In such cases, the application by the courts of the exclusionary rule to preserve finality would be contrary to the first duty of the courts to preserve the integrity of the system of criminal justice which they administer.  The conduct described in the note tended to cast a shadow over the administration of justice in this case in a way that lawful but irresponsible behaviour by a juror, careless of his or her oath, does not. The risk that a juror may not be true to his or her oath because of his or her personal eccentricities is a risk which is inherent in a system of trial by jury, whereas the risk of the intimidation of jurors by unlawful threats of violence from other jurors is not. 

Accordingly, the appeal was allowed and the appellant’s appeal and application for in inquiry into the conduct of the jury was remitted to the Court of Appeal for re-determination.

Forthcoming judgments in the High Court of Australia

The High Court will this morning deliver judgment in three appeals.

The first appeals are the related cases of 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.

The third appeal is 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.