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.