Monday, November 4, 2013

Cases being heard this week in the High Court of Australia

There are two cases listed for hearing in the High Court of Australia this week.
On Tuesday, 5 November 2013 the Court will hear argument in Unions NSW v State of NSW, a challenge to laws enacted by the O’Farrell Government restricting funding and expenditure of political parties, candidates for and members of the NSW Parliament, and third party campaigners.  Section 96D of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) now prohibits any such person or body from accepting political donations unless the donor is an individual who is enrolled to vote (previously, political donations could also be made by any entity with an Australian Business Number). Section 95F prescribes caps on the amounts of “electoral communication expenditure” that can be made by parties, candidates and third party campaigners for a State election campaign.  Where the expenditure of a party is less than or equal to the cap, section 95G operates to add any electoral communication expenditure made by “affiliated organisations”, namely bodies authorized by a party’s rules to participate in the pre-selection of candidates, or to appoint delegates to the party’s governing body. The vast majority (in dollar terms) of political donations made to the major parties in NSW have been made by organisations and associations rather than by individuals. The party with the highest proportion of non-individual donations is the NSW branch of the ALP.  The plaintiff in these proceedings challenges the validity of the new funding provisions on the grounds that they impermissibly burden the implied freedom of communication on governmental and political matters, or a freedom of association, contrary to the Commonwealth Constitution, or alternatively contrary to the NSW Constitution.
On Thursday, 7 November 2013 the Court will hear argument in James v The Queen. James was charged with one count of intentionally causing serious injury and an alternative count of recklessly causing serious injury.  The victim suffered serious injury when he was struck by a vehicle driven by James.  At his trial, James contended that he did not intend to cause serious injury. Alternatively, he claimed that he acted in self-defence, because he was fearful that the victim wanted to try and stab him with a knife. James was convicted on the count of intentionally causing serious injury.  On appeal, James contended that a miscarriage of justice resulted from the trial judge’s failure to leave to the jury possible alternative verdicts of intentionally, or recklessly, causing injury (as opposed to serious injury). In rejecting that contention, the majority of the Court of Appeal noted that the issue in controversy in the trial as to intention did not concern the severity of the injury intended: rather, it concerned whether any injury was intended. The issue was whether the impact between the vehicle and the victim was deliberate or not. It was never suggested that it might be open to conclude that James had struck the victim deliberately with an intention of causing injury, rather than serious injury. Defence counsel throughout the trial had implicitly accepted that, if James had struck the victim deliberately, the requisite state of mind in terms of serious injury must follow. It was obvious that defence counsel had, for forensic reasons, deliberately decided not to ask the judge to direct the jury about the lesser alternatives. The question for consideration by the High Court is whether or not a trial judge has a duty to leave lesser alternative verdicts for consideration by the jury (where they are realistically or fairly open on the evidence) where that would be inconsistent with the forensic position adopted by trial counsel.

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