Tuesday, December 2, 2014

This week in the High Court of Australia

The High Court of Australia will hear argument in three cases this week.
Starting Tuesday, 2 December 2014 the High Court will hear argument in State of Queensland v Congoo.  The case involves a native title application made by the Bar Barrum people in relation to land on the Atherton Tableland in Far North Queensland.  During the Second World War, extensive portions of that land were subject to five successive military orders made pursuant to the National Security Act 1939 (Cth) and its Regulations. The issue for determination is the effect of these orders on the Bar Barrum peoples’ claim to native title.
On Thursday, 4 December 2014 the Court will hear argument in Commissioner of the Australian Federal Police v Zhao.  The respondents in this case are husband and wife.  They husband has been charged with various offences relating to dealing with cash taken from illegal sex workers.  The wife has not been charged with any offence. Orders were made on the application of the AFP Commissioner to restrain the disposal of properties and other personal items owned by the respondents under the Proceeds of Crime Act 2002 (Cth).  The AFP Commissioner then sought orders for the forfeiture of the property.  The respondents sought a stay of the forfeiture proceedings ending the determination of the charges against the husband.  This was refused at first instance but granted on appeal.  At issue in the appeal is the effect of the earlier decision of the High Court in Lee v The NSW Crime Commission (2013) 302 ALR 363 and in Lee v The Queen (2014) 308 ALR 252 on the circumstances in which it is appropriate to stay forfeiture proceedings pending determination of criminal charges.

On Friday, 5 December 2014 the Court will hear argument in CMB v Attorney General for New South Wales.  This case considers who bears the onus of proof in an application under section 5D of the Criminal Appeal Act 1912 (NSW).  That section provides that the Attorney-General may appeal to the Court of Criminal Appeal against sentence, and that the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as may seem proper.  The Court of Criminal Appeal held that it was the offender who bore the onus of establishing that the discretion should be exercised not to re-sentence him.

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