Monday, June 16, 2014

This week in the High Court of Australia

This week the High Court will hear argument in three cases.
On Tuesday, 17 June 2014 the Court will hear argument in Pollentine v Bleijie.  This case is a challenge to the Queensland regime for the indefinite detention “during Her Majesty’s pleasure” of persons convicted of sexual offences against children under 17 years of age who are found to be incapable of exercising proper control over their sexual instincts.  The challenge invokes the Kable principle.
On Wednesday, 18 June 2014 the Court will hear an appeal from the NSW Court of Apeal in Brookfield Multiplex Pty Ltd v Owners Corporation Strata Plan 61288.  This case arose out of the construction by Brookfield of a high-rise apartment building on land owned by a company known as Chelsea Apartments Pty Ltd.  The apartments were completed in 1999 and the strata plan for the apartments was registered, creating the Owners Corporation.  In 2008 the Owners Corporation sued Brookfield in negligence for the cost of rectifying defects in the building.  The question that arises is whether or not a duty was owed by Brookfield to the Owners Corporation to take reasonable care in the construction of the building so as to avoid causing the Owners Corporation harm in the form of pure economic loss resulting from latent defects in the common property.

On Thursday, 19 June 2014 the Court will hear argument in Fitzgerald v The Queen.  The appellant in this case was convicted of a number of offences arising from an attack by a large number of men in which one person was killed and another seriously injured.  None of the eyewitnesses to the attack identified the appellant as being present.  His conviction was based upon evidence that his DNA was found on a didgeridoo that had been moved within the house during the attack, along with evidence that he had never previously been to the house.  At issue in the appeal is whether this evidence was sufficient to establish beyond reasonable doubt, that he was one of the attackers.  The South Australian Court of Criminal Appeal held that this hypothesis depended upon the occurrence of a succession of unlikely events.  The appellant’s argument is, in essence, that the Crown had failed to exclude the a reasonable hypothesis consistent with his innocence, namely that the presence of his DNA on the didgeridoo could be explained by secondary transfer from a co-accused. 

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