Monday, May 6, 2013

Forthcoming judgments in the High Court of Australia

The High Court will deliver judgment in four cases at 10am on Wednesday, 8 May 2013.
First up is the judgment in Beckett v State of New South Wales.  The plaintiff was formerly known as Roseanne Catt.  In 1991 a jury found her guilty of various offences relating to assaults on her husband by the plaintiff, and a number of offences of soliciting a Mr Morris and a Mr Taylor to murder her husband.  She was acquitted of a further offence of encouraging a Mr O’Brien to murder her husband, an offence for which the magistrate had refused to commit her to stand trial, but in respect of which the DPP had presented an ex officio indictment.  She was sentenced to 12 years imprisonment. An appeal to the Court of Criminal Appeal was dismissed.  In early 2001 the plaintiff petitioned the Governor for a review of her convictions (under s474B of the Crimes Act 1900) and at the completion of the procedure laid down for such a review in August 2005 the Court of Criminal Appeal quashed certain of the convictions and ordered a re-trial in respect of them.  In September 2005 the DPP directed that there be no further proceedings against the plaintiff in relation to those charges.  The plaintiff in August 2008 commenced proceedings against the State of NSW for malicious prosecution.  Separate Questions were stated for determination which raise the issue of whether or not the plaintiff, in her claim for damages for malicious prosecution, had to positively establish her innocence and whether proof of her innocence was a necessary element of the cause of action for malicious prosecution. A subsidiary question is whether the statutory power of the DPP to direct that there be no further proceedings is equivalent to entering a nolle prosequi at common law.
Second is the judgment in Minister for Immigration and Citizenship v Li.  In general terms this case considers the content of the procedural fairness requirements in appeals to the Migration Review Tribunal.  More particularly, it considers whether or not a refusal by the MRT to adjourn a hearing to enable the applicant time in which to satisfy a criterion for the grant of a visa, a criterion that the applicant did not then satisfy, amounts to a denial of procedural fairness.
Third is the judgment in in Wallace v Kam, an interesting failure to warn case.  The plaintiff suffered from a temporary condition known as bilateral femoral neuropraxia following spinal surgery.  This was caused by lying prone for an extended period during surgery, and was not a result of the procedure itself.  The plaintiff had not been warned of the risk of this condition, but the trial judge held that had he been warned he would have gone ahead with the surgery nonetheless.  However, the plaintiff also claimed that he had not been warned of the risk of paralysis as a result of damage to the spinal nerves from the surgery itself.  Had he been warned of that risk, he would not have proceeded with the surgery.  The trial judge and the Court of Appeal held that this risk was irrelevant, as it was not the risk that materialised, and the plaintiff was not entitled to recover damages for the risk that did materialise, because he was prepared to accept that risk. 
Foinally, judgment will be delivered in in Director of Public Prosecutions (Cth) v Keating.  In this case Keating was charged with obtaining a financial advantage in breach of section 135.2 of the Commonwealth Criminal Code.  This financial advantage was said to be the overpayment of certain social security benefits, totalling the princely sum of $6,292.79.  The overpayments occurred because Keating failed to inform Centrelink of changes to her income, which fluctuated fortnightly.  At the time of the overpayments, there was no obligation on Keating to inform Centrelink of the changes to her income.  Indeed, this was still the case at the time Keating was charged.  This situation was remedied in 2011 with the introduction of section 66A of the Social Security (Administration) Act 1999.  The main issue that arises for determination in the High Court is whether or not the Commonwealth has the power to retroactively impose the duty to inform Centrelink so as to now criminalise her past conduct, and if it has such a power whether section 66A in fact achieves that result.

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