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.