High Court of Australia – [HCA]

  • Cumberland v The Queen [2020] HCA 21 (03 June 2020) (Bell, Gageler and Nettle JJ)
    Catchwords:
    Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant.

    Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re‑sentencing exercise", "residual discretion".
  • Binsaris v Northern Territory [2020] HCA 22 (03 June 2020) (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ)
    Catchwords:
    Tort – Battery – Statutory authorisation – Where CS gas (form of tear gas) used by prison officer in youth detention centre – Where prison officer called to assist at youth detention centre – Where detainees exposed to CS gas claimed damages for battery – Where device used to deploy CS gas prohibited weapon under Weapons Control Act (NT) – Whether deployment of CS gas by prison officer in youth detention centre lawful – Whether prison officer acting in course of duties as prison officer such that exemption for prescribed persons in s 12(2) of Weapons Control Act applied – Whether authorised by delegation of powers of superintendent of youth detention centre under s 157(2) of Youth Justice Act (NT) – Whether authorised by prison officer having powers of police officer under s 9 of Prisons (Correctional Services) Act (NT).

    Words and phrases – "acting in the course of his or her duties", "battery", "bodily integrity", "breach of the peace", "bystander", "collateral damage", "detainees", "emergency situation", "ensure the safe custody and protection", "maintain discipline", "maintain order", "necessary or convenient", "police officer", "positive authority", "prescribed person", "prison officer", "prisoner", "prohibited weapon", "superintendent", "tortious liability", "use of force that is reasonably necessary", "youth detention centre".
  • Cumberland v The Queen [2020] HCA 21 (03 June 2020) (Bell, Gageler and Nettle JJ)
    Catchwords:
    Criminal practice – Appeal – Crown appeal against sentence – Where appellant sentenced on pleas of guilty to six offences arising out of course of commercial dealing in cannabis plant material and MDMA – Where prosecution appealed against sentence on ground of manifest inadequacy – Where three-member Bench of Court of Criminal Appeal ("CCA") heard appeal and announced intention to allow appeal but referred relevant question of statutory construction to five‑member Bench – Where eleven months after initial hearing, CCA delivered judgment of five-member Bench, then immediately re-constituted to deliver judgment of three-member Bench, allowing appeal and re-sentencing to increased term of imprisonment – Where appellant not given opportunity to place material before CCA as to progress in custody, nor make submissions on re-sentence or dismissal of appeal in exercise of "residual discretion" – Whether CCA failed to accord appellant procedural fairness in conduct of hearing of appeal against sentence – Whether CCA erred in determining to allow appeal against sentence when all circumstances relevant to exercise of "residual discretion" not yet known – Whether matter should be remitted to CCA for re-sentencing of appellant.

    Words and phrases – "aggregate sentence", "Crown appeal against sentence", "delay in the appeal process", "discretionary factors against allowing the Crown appeal", "imminence of the offender's release", "manifestly inadequate", "procedural fairness", "proper exercise of discretion", "re‑sentencing exercise", "residual discretion".
  • Hocking v Director-General of the National Archives of Australia [2020] HCA 19 (29 May 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Administrative law (Cth) – Judicial review – Archives – Access to records – Where Governor‑General engaged in correspondence with Her Majesty the Queen – Where correspondence described as personal and confidential – Where Official Secretary to Governor‑General kept correspondence and made arrangement to deposit correspondence with predecessor organisation to National Archives of Australia ("Archives") – Where correspondence deposited by Official Secretary on instructions of former Governor-General after his retirement – Where Archives Act 1983 (Cth) subsequently enacted – Where s 31 of Archives Act provides that Commonwealth records within care of Archives must be made available for public access when within "open access period" – Where s 3(1) defines "Commonwealth record" as including "record that is the property of the Commonwealth or of a Commonwealth institution" – Where "Commonwealth institution" defined as including "the official establishment of the Governor‑General" – Whether correspondence property of Commonwealth or of official establishment of Governor‑General – Whether "property" within context of Archives Act connoted relationship involving holding of rights corresponding to ownership or possession at common law or connoted existence of legally endorsed concentration of power to control custody of record.

    Words and phrases – "administration", "archival resources of the Commonwealth", "Archives", "body politic", "care and management", "Commonwealth institution", "Commonwealth record", "comprehensive expression", "convention", "correspondence", "created or received officially and kept institutionally", "Crown in right of the Commonwealth", "custody", "functional unit of government", "Governor-General", "kept by reason of", "lawful power of control", "legally endorsed concentration of power", "management", "official establishment of the Governor‑General", "Official Secretary", "ownership", "personal and confidential", "personal records", "possession", "private and confidential", "property", "property of the Commonwealth or of a Commonwealth institution", "public access", "record", "right to exclude others", "the Commonwealth".
  • Pickett v Western Australia [2020] HCA 20 (29 May 2020) (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ)
    Catchwords:
    Criminal law – Parties to offences – Where group of eight males assaulted victim – Where group included appellants and a youth aged 11 years ("PM") – Where one member of group stabbed victim causing death – Where appellants charged with murder under Criminal Code (WA) – Where Crown alleged seven males who did not stab victim deemed to have taken part in committing offence under s 7(b), s 7(c) or s 8 of Criminal Code – Where ss 7(b), 7(c) and 8 of Criminal Code operated when "an offence is committed" – Where reasonably possible that PM inflicted fatal stab wound – Where PM could not be criminally responsible for acts unless he had capacity to know he ought not to do act under s 29 of Criminal Code – Where prosecution adduced no evidence to establish capacity – Where trial judge declined to direct jury that they could not convict appellants of murder unless satisfied beyond reasonable doubt PM did not cause death – Where appellants convicted of murder – Whether trial judge erred in declining to direct jury that they could not convict appellants of murder unless satisfied that PM did not cause death – Whether "offence" committed for purposes of ss 7(b), 7(c) and 8 where failure to prove criminal responsibility of person who may have done act constituting offence.

    Words and phrases – "accessorial criminal liability", "an offence is committed", "authorised or justified or excused by law", "commission of an offence", "common law antecedents", "construction of the Code", "criminally responsible", "enabler or aider", "excuse", "justification", "liable to punishment", "offence", "participants in the offence", "parties to the offence", "party to an unlawful common purpose", "principal offender", "unlawful killing".
  • Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCA 18 (24 April 2020) (Nettle J)
    Catchwords:
    High Court – Original jurisdiction – Applications for constitutional or other writ – Determination without hearing – Abuse of process – Where plaintiff seeks orders inter alia to quash orders of superior court of record dismissing appeal from judgment dismissing application for judicial review of decision of administrative tribunal affirming decision by delegate of defendant Minister – Where plaintiff has not applied for special leave to appeal or provided explanation for departure from ordinary appellate process – Whether application is an abuse of process.

    Migration – Visas – Skilled visas – Criteria for grant – Proof of skills – Where primary criteria to be satisfied for grant of visa include that application be accompanied by evidence that applicant had applied for assessment of skills for nominated skilled occupation by relevant assessing authority – Where visa applicant had failed skills assessment and not applied for subsequent skills assessment at time of submitting application – Whether evidence provided to defendant Minister after that time relevant to satisfaction of criterion.

    Words and phrases – "abuse of process", "accompanied by", "constitutional writs", "determination without oral hearing", "discretion to refuse relief", "extraordinary relief", "less convenient, beneficial and effective", "ordinary appellate process", "original jurisdiction", "skills assessment", "unnecessary recourse".
  • Moore v Scenic Tours Pty Ltd [2020] HCA 17 (24 April 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Damages – Consumer guarantees – Personal injury – Where appellant booked holiday cruise tour supplied by respondent – Where holiday cruise tour severely disrupted by adverse weather conditions – Where respondent breached consumer guarantees in ss 60 and 61 of Australian Consumer Law ("ACL") – Where appellant claimed damages for disappointment and distress – Where s 275 of ACL provided that where failure to comply with consumer guarantee that applies to supply of services and State law proper law of contract, that law applies to limit or preclude liability for failure and recovery of liability as it would for breach of contract – Where New South Wales proper law of contract – Where s 16(1) of Civil Liability Act 2002 (NSW) ("CLA") precluded damages for non-economic loss in relation to personal injury cases unless non-economic loss at least 15% of most extreme case – Where threshold in s 16(1) not reached – Whether s 275 of ACL picked up and applied s 16 of CLA as surrogate federal law – Whether s 16 of CLA applied to preclude damages for disappointment and distress not consequential upon physical or psychiatric injury.

    Words and phrases – "breach of contract", "damages", "disappointment and distress", "enjoyment", "head of loss", "holiday cases", "impairment of a person's physical or mental condition", "loss of amenities of life", "non‑economic loss", "pain and suffering", "peace of mind", "personal injury", "quantification of damages", "recovery", "recovery of that liability", "recreation", "surrogate federal law".
  • Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16 (24 April 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Criminal practice – Accusatorial system of criminal justice – Companion rule – Where subpoena issued for employee to attend to give evidence at coronial inquest into manner and cause of another employee's death – Where employer and Commonwealth of Australia prosecuted for alleged failures to comply with duty to ensure worker health and safety – Where s 87(1)(b) of Evidence Act 2011 (ACT) relevantly entailed that representation by employee of party relating to matter within scope of employment taken as admission by that party – Whether invocation of investigative power to compel employee to give evidence about matter with respect to which employer stands charged amounts to compelling employer to give evidence contrary to rule that accused not required to assist Crown in proving its case.

    High Court – Appellate jurisdiction – Practice – Extension of time – Where first respondent sought leave to file notice of contention out of time alleging that compulsion of its employee to give evidence at coronial inquest would constitute contempt of court in parallel criminal proceedings by creating real risk of interference with justice according to law – Where criminal proceedings concluded and first respondent acquitted of offences – Whether extension of time should be granted to resolve question of whether compulsory examination of potential witness other than accused can amount to contempt of court.

    Words and phrases – "accusatorial system of criminal justice", "admissions made with authority", "attribution", "companion rule", "compulsory investigative powers", "compulsory pre-trial examination", "contempt of court", "coronial inquest", "extension of time", "hypothetical circumstances", "practical reality", "real risk of improper interference with criminal proceedings".
  • Coughlan v The Queen [2020] HCA 15 (24 April 2020) (Kiefel CJ, Bell, Gageler, Keane and Edelman JJ)
    Catchwords:
    Criminal law – Arson and attempted fraud – Appeal against conviction – Where prosecution case based on circumstantial evidence – Where appellant's house destroyed by explosion and resulting fire – Where appellant present at and seen running away from scene – Where appellant gave version of events to police consistent with innocence – Where appellant made insurance claim on house and contents in connection with fire – Where no apparent financial motive to commit offences – Where expert evidence that explosion caused by build-up of gaseous vapours – Where petrol residues found on appellant's clothes – Where no evidence of petrol residues in house – Whether open to jury to be satisfied of appellant's guilt beyond reasonable doubt – Whether prosecution excluded reasonable possibility that explosion caused by build-up of gas ignited by electrical fire.

    Words and phrases – "absence of apparent financial motive", "arson", "attempted fraud", "beyond reasonable doubt", "circumstantial case", "consciousness of guilt", "inference consistent with innocence", "lack of motive", "reasonable possibility", "scientific evidence".
  • Smethurst v Commissioner of Police [2020] HCA 14 (15 April 2020) (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ)
    Catchwords:
    Police – Search warrants – Validity of warrant – Where police searched premises in reliance on warrant – Where police retained material copied from first plaintiff's mobile phone in reliance on warrant – Where warrant relied upon reasonable grounds for suspecting commission of Commonwealth offence – Where warrant purported to set out offence against s 79(3) of Crimes Act 1914 (Cth) – Whether warrant misstated substance of s 79(3) of Crimes Act – Whether warrant failed to state offence to which it related with sufficient precision.

    Injunctions – Mandatory injunction – Principles applicable – Where plaintiffs sought mandatory injunction requiring destruction or delivery up of material obtained under invalid warrant – Where plaintiffs sought injunction restraining police from making information available to prosecuting authorities – Whether statutory basis for injunction – Whether plaintiffs identified legal right to support injunction in auxiliary jurisdiction – Whether consequences of trespass provide basis for injunction – Whether s 75(v) of Constitution provides basis for injunction – Whether damages inadequate – Whether injunctive relief should be refused on discretionary grounds.

    Words and phrases – "adequacy of damages", "auxiliary jurisdiction", "basis for injunction", "certiorari", "computer or data storage device", "constitutional injunction", "constitutional remedies", "constitutional writs", "description of the offence", "discretionary considerations", "entry, search and seizure", "equity", "evidential material", "injunction", "injunctive relief", "juridical basis", "legal right or interest", "mandatory injunction", "misstatement", "mobile phone", "nature of the offence", "official secrets", "privacy", "relief", "remedy", "right to privacy", "search warrants", "statement of offence", "substance of the offence", "sufficient interest", "sufficient particularity", "sufficient precision", "trespass".

Supreme Court of Tasmania – Full Court [TASFC]

Supreme Court of Tasmania – Court of Criminal Appeal [TASCCA]

  • Finnegan v Tasmania [2020] TASCCA 5 (11 May 2020) (Blow CJ, Pearce J, Marshall AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Verdict unreasonable or insupportable having regard to evidence – Appeal dismissed – Appellant found guilty of murder – No significant possibility an innocent person convicted – Verdict open.
  • Director of Public Prosecutions v Johnson [2020] TASCCA 4 (09 April 2020) (Wood J, Geason J, Marshall AJ)
    Catchwords:
    Criminal Law – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Assault, stalking, attempting to interfere with a witness, breaching and attempting to breach a family violence order – Sentence of 2 years' imprisonment with non-parole period of half the sentence manifestly inadequate.
  • Director of Public Prosecutions v J S P [2020] TASCCA 3 (27 March 2020) (Wood J, Estcourt J, Pearce J)
    Catchwords:
    Criminal Law – Particular offences – Sexual offences – Rape and sexual assault – Mens rea, honest and reasonable mistake and recklessness – Honest mistake.
  • Hardwick v Tasmania [2020] TASCCA 2 (20 March 2020) (Blow CJ, Pearce J, Martin AJ)
    Catchwords:
    Criminal Law – Sentence – Sentencing procedure – Material relevant for determining appropriate sentence – Victim impact statements.
  • Riley v Tasmania [2020] TASCCA 1 (21 February 2020) (Wood J, Geason J, Martin AJ)
    Catchwords:
    Criminal Law – Adequacy of summing-up – Trial judge's duty to put defence case – Extent of obligation when summarising evidence – Summing-up adequate – No miscarriage of justice – Appeal dismissed.
  • Bishop v Tasmania [2019] TASCCA 21 (26 November 2019) (Wood J, Geason J, Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Dangerous driving and summary offences including evading police with aggravating circumstances – Offender drove more than 50 kilometres involving multiple instances of danger and high risk – Sentence of 3 years and 9 months’ imprisonment with non-parole period of 2 years not manifestly excessive.
  • Chatters v Tasmania [2019] TASCCA 20 (20 November 2019) (Blow CJ, Pearce J, Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Armed robbery, assault and rape – Female service station attendant robbed at knifepoint, deprived of liberty for three hours, and raped vaginally – Sentence of 10 years' imprisonment with non-parole period of 6 years not manifestly excessive.
  • Bell v Tasmania [2019] TASCCA 19 (15 November 2019) (Pearce J, Brett J, Martin AJ)
    Catchwords:
    Criminal Law – General matters – Criminal liability and capacity – Defence matters – Ignorance and mistake of fact – Availability of defence of honest and reasonable mistake – Generally – Act a criminal offence regardless of mistaken belief – Mistaken belief did not excuse crime charged.
  • Director of Public Prosecutions v Fletcher-Jones [2019] TASCCA 18 (12 November 2019) (Pearce J, Geason J, Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Assault and stealing – Man kicked and struck with weapon by two men – Sentence imposed when offender already serving long sentence – Totality principle – Head sentence of 15 months with 12 months to be served concurrently with another longer sentence not manifestly inadequate.
  • Auton v Tasmania [2019] TASCCA 17 (08 November 2019) (Wood J, Geason J, Martin AJ)
    Catchwords:
    Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Ill-treating a child – Three and a half year old with Autism Spectrum Disorder – Offender assumed a "disciplining" role while in a relationship with child’s mother – Multiple incidents of ill-treatment over a 3 week period – Child suffered multiple injuries and was subjected to repeated beatings, his mouth or hands taped with duct tape, and on one occasion he was placed naked inside a drum with tap running over his head – 24 year old offender with no prior convictions for violence – Plea of guilty – Significant mental health difficulties including major depressive disorder and post-traumatic stress disorder complicated by illicit and prescription drug use – Sentence of 3½ years' imprisonment with non-parole period of 2 years not manifestly excessive.

Supreme Court of Tasmania – [TASSC]

  • State of Tasmania v MFC [2020] TASSC 23 (03 June 2020) (Estcourt J)
    Catchwords:
    Procedure – Supreme Court procedure – Tasmania – Procedure under rules of Court – Associate Judges – Nature of appeals from Associate Judges.
  • PQR v Sundram [2020] TASSC 21 (02 June 2020) (Blow CJ)
    Catchwords:
    Criminal Law – Particular offences – Offences against peace and public order – Miscellaneous offences and other matters – Other matters – Breach of police family violence order – Order "subject to" parenting order under Family Law Act – Extent of inconsistency between two orders.
  • Richards v MBA Finance Pty Ltd [2020] TASSC 22 (01 June 2020) (Estcourt J)
    Catchwords:
    Guarantee and Indemnity – The contract of guarantee – Construction and effect – Whether second defendant is guarantor of or substitute debtor under first defendant's loan agreement – Whether email communication stating second defendant has "taken responsibility for [first defendant's] loan and will refund" constitutes guarantee or intention to become substitute debtor – Not necessary that the word "guarantee" be used.
  • McCarthy v Saltwood Pty Ltd [2020] TASSC 19 (27 May 2020) (Brett J)
    Catchwords:
    Corporations – Management and administration – Inspection of or access to financial records, registers, documents and other information of company – Admissibility in proceedings – Records of trust and company – Reliability of financial statements – Whether records correctly reflect actual financial transactions, and if so the validity and lawfulness of those transactions.
  • Edwards v Crawford [2020] TASSC 20 (25 May 2020) (Porter AJ)
    Catchwords:
    Equity – Trusts and trustees – Generally – Other matters – Secret trusts – Elements of a fully secret trust – Testator had five daughters including plaintiff – Testator left four equal shares of estate to plaintiff's sisters and fifth share to plaintiff's daughter – Claim by plaintiff against defendant daughter that her share held on secret trust pending plaintiff's discharge from bankruptcy – Dispute as to testator's intention – Communication of testator's alleged intention by plaintiff to defendant – Secret trust not made out.
  • Director of Public Prosecutions v Burton [2020] TASSC 16 (19 May 2020) (Geason J)
    Catchwords:
    Magistrates – Appeal and Review – Motion to review – Granting of Restricted Licence – Severe and unusual hardship – Public interest.
  • Venn v Pettit [2020] TASSC 18 (19 May 2020) (Geason J)
    Catchwords:
    Magistrates – Appeal and review – Tasmania – Motion to review – Appeal against sentence – Failure to have regard to relevant prior convictions – Sentence manifestly inadequate – Sentencing discretion miscarried – Appeal allowed.
  • Roadside Products Pty Ltd v Cocker [2020] TASSC 17 (19 May 2020) (Geason J)
    Catchwords:
    Magistrates – Appeal and review – Application for recusal – Apprehended bias – Magistrate’s conduct gave appearance of pre-judgment – matter remitted to different Magistrate
  • Bullard v Anti-Discrimination Tribunal [2020] TASSC 15 (19 May 2020) (Geason J)
    Catchwords:
    Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Review of decision – Out of time complaint not accepted by Commissioner – No tribunal jurisdiction to review Commissioner decision – Tribunal decision invalid – Appeal upheld.
  • Carlos v Commonwealth Bank of Australia [2020] TASSC 14 (14 May 2020) (Pearce J)
    Catchwords:
    Administrative Law – Judicial review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decisions of an administrative character – Order of Associate Judge of Supreme Court for possession of land under the Land Titles Act 1980, s 146 – Not decision of an administrative character.