Monday, June 24, 2013

Judgments to be delivered this week in the High Court of Australia

This week the High Court will deliver judgment in four cases.
On Wednesday, 26 June 2013 the Court will deliver judgment in X7 v Australian Crime CommissionThis case is a challenge to the power of the Australia Crime Commission to conduct an examination of a person charged with an indictable offence where the examination concerns the subject matter of the offence so charged.  The challenge is mounted firstly as a question of the proper construction of the Australian Crime Commission Act 2002 (Cth), and if properly construed the Act does authorise such an examination whether the Act itself is, to that extent, invalid on the basis that it impermissibly interferes with the administration of justice in the exercise of Commonwealth judicial power and/or is contrary to section 80 of the Constitution.
On Thursday, 27 June 2013 judgment will be delivered in three cases.  First in the list is Director of Public Prosecutions v JM, an appeal from the Victorian Court of Appeal in a share market manipulation case.  In essence the question for consideration is whether the meaning of the phrase “artificial price” within the meaning of section 1041 of the Corporations Act 2001 is to be informed by the US jurisprudence relating to “cornering” and “squeezing”, concepts derived from trading in the futures markets that have no practical application in the equities market with which the prosecution of the respondent was concerned.  More generally, the cases raises important issues in relation to statutory construction, and in particular the use, and utility, or extrinsic material.
Judgment will also be delivered in Nguyenv The Queen, an appeal by Dang Khoa Nguyen in criminal proceedings that have already made their way to the High Court on a previous occasion (see R v Nguyen (2010) 242 CLR 491, an appeal involving Dang Khoa Nguyen’s co-accused, Dang Quang Nguyen).  At issue is whether the trial judge ought to have left for consideration by the jury an alternative charge of manslaughter (by acting in concert, by extended common purpose, or by aiding and abetting) where the perpetrator had been conceited of murder.  A further issue of more general importance is the extent to which a trial judge is entitled to have regard to the manner in which an accused has conducted the defence in determining whether or not to leave an alternative charge for the jury’s consideration.  This judgment is being delivered only 3 weeks after the hearing.
Finally, the Court will deliver judgment in Issa v The Queen and Elias v The Queen, in which the Court will consider the extent of the principle in R v Liang & Li, whereby a sentencing court imposing a penalty for a State offence is required to have regard to the fact that the accused could have been charged with a different offence under State law that carried a lesser penalty.  At issue in the appeal is whether or not in sentencing a person for a State offence, the principle in R v Liang & Li requires a court to take into account that the person could have been charged with a similar offence for the same conduct under a Commonwealth law which carried a lesser maximum penalty. Again, this judgment is being delivered relatively quickly, with the argument have been heard on 30 May 2013.

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