The High Court has today allowed two appeals.
In the first, MacarthurCook Fund Management Ltd v TFML Ltd the High Court unanimously allowed an appeal from a decision of the NSW Court of Appeal. The High Court held that redemption of certain interests in a managed investment scheme did not constitute a withdrawal from that scheme within the meaning of Part 5C.6 of the Corporations Act 2001.
In the second, Gillard v The Queen, the High Court unanimously allowed an appeal from the ACT Court of Appeal against conviction for four sexual offences. The prosecution established that the appellant had abused a position of trust over the complainant which resulted in the complainant consenting to sexual intercourse. That abuse of trust had the result that the complainant’s consent was negatived by force of section 67 of the ACT Crimes Act 1900. This was sufficient to satisfy the physical element of the offences charged (ie, sexual intercourse without consent). The mental element for the offences required proof that the appellant knew the complainant was not consenting, or was reckless as to whether or not the complainant was not consenting. The High Court held that merely being reckless as to the fact that the appellant was abusing his position, or reckless as to the fact that this abuse of position resulted in the complainant’s consent, was not sufficient to establish that the appellant was reckless as to the complainant’s consent.