Grants of Special Leave to appeal to the High Court

On Friday, 15 August 2014 the High Court granted Special Leave to Appeal in four cases.

In Grant Samuel Corporate Finance Pty Ltd v Fletcher the Court granted Special Leave to appeal from a decision of the NSW Court of Appeal ([2014] NSWCA 31) which raises an important issue in relation to the commencement of proceedings by liquidators in relation to voidable transactions.  Section 588FF(3)(a) provides that such applications be brought within 3 years of the relevant relation-back date.  Section 588FF(3)(b) authorises a Court to extend that period, although an application for extension must be brought within the original 3-year period.  In this case an extension application was made ex parte within the 3-year period and granted by Hammerschlag J.  A further application was brought outside of the initial 3-year period, but within the original extended period, for a further extension of time within which to commence proceedings.  This application was granted by Ward J, relying upon the power under UCPR 36.16 to vary orders made in the absence of a party.

In Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd the Court granted Special Leave to appeal from a decision of the Full Federal Court ([2014] FCAFC 22).  The case arises out of the prank phone call made by two morning radio presents who, posing as Queen Elizabeth II and Prince Charles, recorded a telephone call with two hospital staff at King Edward VII Hospital in London, where the Duchess of Cambridge was an inpatient, being treated for acute morning sickness.  Notoriously, one of the hospital staff involved subsequently committed suicide.  ACMA investigated the incident and found that Today FM, in broadcasting the recording of the private conversation (which was made in contravention of section 7(1) of the Surveillance Devices Act 2007 (NSW)), had contravened section11(1) of that Act, and had therefore contravened a condition of its broadcasting licence which provides that “the licensee will not use the broadcasting service or services in the commission of an offence against another Act or a law of a State or Territory”.  At issue is whether or not ACMA has the power to investigate and make a determination that a licensee has committed a criminal offence.

In Commissioner of State Revenue v Lend Lease Development Pty Ltd the Court granted Special Leave to appeal from a decision of the Victorian Court of Appeal ([2013] VSCA 207) which raises a question of general importance as to whether or not payments made by a developer to a statutory authority for infrastructure and construction works carried out as part of a large urban renewal project form part of the consideration paid for the sale of parcels of land from the authority to the developer.

In Korda v Australian Executer Trustees (SA) Ltd the Court granted Special Leave to appeal from a decision of the Victorian Court of Appeal ([2014] VSCA 65) which raises a question of general important as to whether the intention necessary to create a trust by investors in an investment scheme is to be determined by reference to the transaction documents executed by them, or more generally by reference to the commercial setting in which the investment was made.

High Court upholds indefinite detention of Queensland paedophiles

This morning the High Court of Australia delivered judgment in Pollentine v Bleijie, in which it upheld a challenge to the validity the Queensland regime for the indefinite detention of a person found guilty of an offence of a sexual nature committed upon or in relation to a child.

In 1984 the plaintiffs each pleaded guilty to charges of sexual offences committed against children.  In each case, on the report of medical practitioners, the District Court declared that the plaintiffs were incapable of exercising proper control over their sexual instincts and directed that they be detained in an institution during Her Majesty's pleasure.

Section 18 of the Criminal Law Amendment Act 1945 (Qld) provides that a judge presiding at the trial of a person found guilty of an offence of a sexual nature committed upon or in relation to a child may direct that two or more medical practitioners to inquire as to the mental condition of the offender, and in particular whether the offender "is incapable of exercising proper control over the offender's sexual instincts".  The section further provides that if the medical practitioners report to the judge that the offender "is incapable of exercising proper control over the offender's sexual instincts", the judge may, either in addition to or in lieu of imposing any other sentence, declare that the offender is so incapable and direct that the offender be detained in an institution "during Her Majesty's pleasure".  An offender the subject of a direction to detain is not to be released until the Governor in Council is satisfied on the further report of two medical practitioners that it "is expedient to release the offender".

The plaintiffs challenged the validity of section 18 of the Act on the ground that it was repugnant to or incompatible with the institutional integrity of the District Court of Queensland, as a repository or potential repository of Federal jurisdiction, thereby infringing Chapter 3 of the Constitution.  The High Court upheld the validity of the provision, noting that while a court may direct the detention but not the release of an offender under section 18, the court has discretion whether to direct detention.  Furthermore, while the release of an offender was subject to the exercise of executive discretion, that discretion was informed by medical opinion about the risk of an offender reoffending, and the exercise of the discretion was subject to judicial review.  Section 18 was therefore not inconsistent with the institutional integrity of the District Court.

New judgments from the High Court of Australia

Yesterday the High Court delivered two judgments.

The first was the Court’s reasons for allowing the appeal and directing that a judgment and verdict of acquittal be entered in Fitzgerald v The Queen [2014] HCA 28.  In that case the appellant was convicted of murder, and an aggravated offence of causing serious harm.  The prosecution case was that the appellant and his co-accused were members of a group that forced entry into a house, and that each member of the group was a party to a common plan to cause grievous bodily harm to persons inside the house. The issue in the appellant’s trial was the sufficiency of the evidence to establish that he was one of the group. The prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish that fact.  The High Court held that the forensic evidence of Dr Henry, called by the prosecution, did not establish beyond reasonable doubt that the appellant’s DNA in the sample was derived from the appellant’s blood.  That then left the issue of how the DNA came to be on the didgeridoo. Dr Henry’s evidence was to the effect that a primary transfer is a much more likely source of contact or trace DNA than a secondary transfer, but that nevertheless a secondary transfer of contact or trace DNA is possible. There was no conflict in the evidence that there were at least two distinct occasions on which a secondary transfer of the appellant’s DNA to the didgeridoo may have occurred. The recovery of the appellant’s DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. For those reasons, the High Court held that it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. Alternative hypotheses consistent with the appellant’s innocence, in particular the hypothesis that his co-accused transferred the appellant’s DNA to the didgeridoo on during a visit to the house on the day in question, were not unreasonable and the prosecution had not successfully excluded those hypotheses.

The second was the judgment in Honeysett v The Queen [2014] HCA 29.  In that case the appellant was convicted of the armed robbery of an employee of a suburban hotel.  CCTV recorded the robbery. At the trial, over objection, the prosecution adduced evidence from an anatomist, Professor Henneberg, of anatomical characteristics that were common to the appellant and to one of the robbers. Professor Henneberg’s opinion was based on viewing the CCTV images of the robbery and images of the appellant taken while he was in custody.  The question for determination was whether or not the evidence of Professor Henneberg “involved an area of specialised knowledge based on training, study or experience” and whether Professor Henneberg’s opinion was wholly or substantially based on that area of specialised knowledge.  In the High Court, the only specialised knowledge relied upo by the Crown was Professor Henneberg’s is knowledge of anatomy. The Crown argued that Professor Henneberg did not give evidence in the trial of identification based on anatomical comparison. Rather, his evidence was no more than an account of the characteristics of the body of the person depicted in each set of images: it was evidence of opinion wholly or substantially based on Professor Henneberg’s specialised knowledge of anatomy. However, the High Court held that Professor Henneberg’s opinion was not based on his undoubted knowledge of anatomy. Professor Henneberg’s knowledge as an anatomist, that the human population includes individuals who have oval shaped heads and individuals who have round shaped heads (when viewed from above), did not form the basis of his conclusion that the robber and the appellant each have oval shaped heads. That conclusion was based on Professor Henneberg’s subjective impression of what he saw when he looked at the images. His opinions about right-handedness, were also not based upon his expertise in handedness, but on his observations that the robberne used his right hand to remove cash from the till and the appellant used his right hand to write his name and insert a swab into his mouth. Professor Henneberg’s evidence gave the unwarranted appearance of science to the prosecution case that the appellant and the robber shared a number of physical characteristics. Among other things, the use of technical terms to describe those characteristics – the robber and the appellant are both ectomorphic – was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny.  It should therefore not have been admitted.

This week in the High Court of Australia

The High Court will hear argument in two cases this week.

The first is Plaintiff S4/2014 v Minister for Immigration and Border Protection, which will be heard on Wednesday, 13 August 2014.  In that case the plaintiff, a stateless person originating from Myanmar, entered Australia in December 2011.  Because of section 46A of the Migration Act 1958 he was unable to lodge an application for a protection visa.  He was, however, entitled to request a Protection Obligations Determination, an administrative process whereby an assessment was made as to whether the plaintiff was a person to whom Australia owed protection obligations (ie a refugee).  In April 2012 officers of the Department determined that he was a refugee.  Between April 2012 and January 2014 the plaintiff’s case was referred to ASIO for assessment, ultimately resulting in a “non-prejudicial (clear) security assessment.”  Ordinarily, these processes would have resulted in the Minister exercising the discretion under section 46A to lift the bar preventing an application for a protection visa being made.  However, without notice to the plaintiff and without application by the plaintiff, the Minister granted the plaintiff a 7-day Temporary Safe Haven visa, and a 3-year Temporary (Humanitarian Concern) Visa.  The effect of granting the 7-day TSH visa was to enliven section 91K which imposes a bar on the plaintiff making an application for any form of visa.  The apparent purpose was to avoid the reasoning in the Offshore Processing Case, that in undertaking the Protection Obligations Determination process the Minister had embarked upon consideration of whether or not to lift the bar under section 46A.

On Thursday, 14 August 2014 the High Court will hear argument in Versi v The Queen.  In that case the accused was convicted of two of four counts of sexual misconduct against his step-daughter. One of the counts of which he was convicted (Count 2) involved an allegation that he had asked his step-daughter to rub medicinal cream on his genitals.  During the trial, evidence was led from a different step-daughter from a previous marriage to the effect that the accused had asked her to hold his erect penis in her hands while he moved his hips, which he told her would help to ease a hernia in his groin.  This evidence was admitted as coincidence evidence in respect of Count 2, the jury being instructed they could not use that evidence in relation to the other counts with which the accused was charged.  However, the jury was also told that if they found the accused guilty of one of the counts, it could proceed to conclude that the accused had a sexual interest in his step-daughter on which he had acted, which could then be used as tendency evidence in relation to the other three counts.  The main issues on appeal are whether or not the evidence was properly admissible as coincidence evidence under section 98 of the Evidence Act, and if so whether it ought to have been excluded under sections 101 or 137 of the Evidence Act.

Judgments this week from the High Court of Australia

The High Court will deliver judgment in three cases this week.

On Wednesday, 13 August 2014 the Court will deliver judgment in Honeysett v The Queen.  In this case the accused was convicted of armed robbery. The Crown adduced evidence from a “forensic anatomist” who compared images of the offender taken from CCTV footage of the robbery with police photographs of the accused.  The expert gave an anatomical description of the offender based on the CCTV by reference to eight features, including that he had a slim body build, a well-bent small of the back, sort hair and a head that was somewhat elongated rather than round.  The expert also gave evidence that the accused also shared the eight anatomical features identified in the offender.  He also gave evidence that he was unable to discern any differences between the accused and the offender.  At issue in the appeal is the admissibility of that evidence as “expert opinion” in accordance with section 79 of the Evidence Act 1995.

Also on Wednesday the Court will deliver judgment in Fitzgerald v The Queen.  At the conclusion of the hearing of the appeal the Court adjourned for four minutes before allowing the appeal and entering a verdict of acquittal, with reasons to be published. It is those reasons that will be delivered on Wednesday.  In this case the appellant was convicted of a number of offences arising from an attack by a large number of men in which one person was killed and another seriously injured.  None of the eyewitnesses to the attack identified the appellant as being present.  His conviction was based upon evidence that his DNA was found on a didgeridoo that had been moved within the house during the attack, along with evidence that he had never previously been to the house.  At issue in the appeal is whether this evidence was sufficient to establish beyond reasonable doubt, that he was one of the attackers.  The South Australian Court of Criminal Appeal held that this hypothesis depended upon the occurrence of a succession of unlikely events.  The appellant’s argument was, in essence, that the Crown had failed to exclude a reasonable hypothesis consistent with his innocence, namely that the presence of his DNA on the didgeridoo could be explained by secondary transfer from a co-accused. 

Finally, on Thursday, 14 August 2014 the Court will deliver judgment in Pollentinev The Honourable Jarrod Pieter Bleijie Attorney-General for the State of Queensland.  This case is a challenge to the Queensland regime for the indefinite detention “during Her Majesty’s pleasure” of persons convicted of sexual offences against children under 17 years of age who are found to be incapable of exercising proper control over their sexual instincts.  The challenge is yet another attempt to invoke the Kable principle to challenge indefinite detention regimes.