Recent Cases

High Court of Australia

  • Catchwords: Criminal practice – Appeal – Miscarriage of justice – Application of proviso that no substantial miscarriage of justice actually occurred – Where appellant convicted of sexual offences against two complainants – Where appellant’s evidence contradicted complainants’ testimonies – Where rule in Browne v Dunn not observed by defence counsel – Where prosecutor cross-examined appellant about defence counsel’s non-observance of rule – Where prosecutor’s cross‑examination suggested parts of appellant’s evidence a recent invention – Whether prosecutor’s questioning impermissible and prejudicial such that it resulted in miscarriage of justice – Whether proviso applied because no substantial miscarriage of justice actually occurred. Words and phrases – “any departure from a trial according to law to the prejudice of the accused”, “appellate court’s assessment of the appellant’s guilt”, “credibility”, “cross-examination”, “glaringly improbable”, “miscarriage of justice”, “nature and effect of the error”, “proviso”, “real chance”, “recent invention”, “root of the trial”, “rule in Browne v Dunn”, “serious breach of the presuppositions of the trial”, “substantial miscarriage of justice”.

  • Catchwords: Criminal law – Sentence – Plea of guilty – Where appellant sentenced in District Court of New South Wales for multiple offences including taking a conveyance without consent of owner contrary to s 154A(1)(a) of Crimes Act 1900 (NSW) (“offence”) – Where maximum penalty for offence five years’ imprisonment – Where offence dealt with as a “related offence” under s 165 of Criminal Procedure Act 1986 (NSW) – Where sentencing court subject to jurisdictional limit of two years’ imprisonment for offence – Where s 22(1) of Crimes (Sentencing Procedure) Act 1999 (NSW) provided sentencing court may impose lesser penalty than it would otherwise have imposed but for plea of guilty – Where sentencing judge awarded 25% discount for guilty plea for offence – Where indicative sentence of two years and eight months’ imprisonment exceeded jurisdictional limit – Whether sentence that court “would otherwise have imposed” can exceed jurisdictional limit. Words and phrases – “aggregate sentence”, “appropriate sentence”, “discount to the sentence”, “guilty plea”, “indicative sentence”, “jurisdictional limit”, “lesser penalty than it would otherwise have imposed”, “maximum penalty”, “plea of guilty”, “sentence in excess of the jurisdictional limit”.

  • Catchwords: Criminal law – Defences – Where respondent member of Northern Territory Police Force – Where respondent alleged to have fatally shot deceased after being deployed to arrest – Where respondent charged with murder and alternative offences under Criminal Code (NT) – Where s 148B of Police Administration Act 1978 (NT) (“Act”) provides person “not civilly or criminally liable” for act done or omitted to be done “in good faith” in actual or purported “exercise of a power or performance of a function under” Act – Where s 5(2) of Act lists “core functions” of Police Force – Where s 25 of Act provides member of Police Force “shall perform the duties and obligations and have the powers and privileges as are, by any law in force in the Territory, conferred or imposed on” member – Whether “function” under s 148B of Act includes core functions listed in s 5(2) of Act. Criminal practice – Question of law arising before trial – Where trial judge referred four questions to Full Court of Supreme Court of Northern Territory of Australia – Where questions referred on basis of “assumed facts” – Where “assumed facts” not agreed and likely to be disputed at trial – Where Full Court reformulated third question – Whether third question hypothetical – Whether Full Court erred in reformulating third question. Words and phrases – “assumed facts”, “common law powers”, “defence”, “exercise of a power or performance of a function”, “fragmenting the ordinary course of criminal proceedings”, “hypothetical”, “powers and functions of a police officer”, “protection from liability”.

  • Catchwords: Criminal practice – Trial – Directions to jury – Where appellant charged with ten counts of aggravated indecent assault against three of his children – Where appellant did not seek that counts be tried separately – Where appellant alleged complainants’ evidence was inconsistent and had been concocted – Where appellant did not seek anti‑tendency direction and no anti‑tendency direction given – Where trial judge gave Murray direction requiring jury not to convict on any count unless satisfied that evidence of each child was honest and reliable in relation to that count – Where trial judge directed jury to give separate consideration to each count – Whether trial miscarried because of failure to give anti‑tendency direction. Words and phrases – “anti‑tendency direction”, “concoction of evidence”, “counts tried together”, “failure of counsel to seek a direction”, “forensic advantage”, “forensic strategy”, “impermissible tendency reasoning”, “miscarriage of justice”, “multiple complainants”, “Murray direction”, “separate consideration direction”, “stark contest of credibility”.

  • Catchwords: Local government – Town planning – Development approvals – Where second appellant purchased undeveloped parcel of land in 2015 – Where preliminary approval granted in 2007 for development project pursuant to Integrated Planning Act 1997 (Qld) – Where preliminary approval contained “conditions” regarding payment of infrastructure contributions by developers to respondent Council – Where development permits granted in 2016 – Where Integrated Planning Act introduced new regime permitting local governments to levy infrastructure charges by notice – Where s 6.1.31(2)(c) of Integrated Planning Act preserved as interim measure existing regime of imposing condition on development approval requiring infrastructure contributions – Where new regime maintained by Sustainable Planning Act 2009 (Qld) and Planning Act 2016 (Qld) – Where respondent Council issued infrastructure charges notices in accordance with new regime following issue of development permits – Whether conditions in preliminary approval imposed liability to pay infrastructure contributions – Whether conditions proper exercise of power in s 6.1.31(2)(c) of Integrated Planning Act. Words and phrases – “conditions”, “development approval”, “development permit”, “future liability”, “infrastructure charges”, “infrastructure contributions”, “notice alerting the developer to the Council’s future intentions”, “preliminary approval”.

Full Federal Court

  • Catchwords: MIGRATION — appeal from decision of the Federal Circuit Court to dismiss an application for judicial review of a decision to refuse to grant a Safe Haven Enterprise visa — where Minister not satisfied that the grant of the visa was in the national interest under cl 790.227 of the Migration Regulations 1994 (Cth) — where appellant convicted of, and sentenced for, a people smuggling offence but recognised as a refugee at risk of serious harm in his country of nationality and where appellant satisfied all other visa criteria and there was no evidence that he was entitled to enter and reside in a country other than his country of nationality, whether Minister did not consider the prospect of refoulement and the potential breach by Australia of its non-refoulement treaty obligations — whether, if so, the Minister was bound to do so — whether primary judge erred by making a finding of fact in the absence of evidence — whether Minister’s decision legally unreasonable because appellant not found to be a person whom the Minister considered a danger to Australia’s security within s 36(1C) of the Migration Act 1958 (Cth) or because it was made for the purpose of further punishing the appellant

  • Catchwords: TORTS – tort of deceit – alleged representations about filing proposed proceeding – representations not made or, if made, not knowingly false – inferences – reliance not established – causation not established – tort of deceit not committed – loss/damage not established –– loss of opportunity – aggravated and exemplary damages –– appeal dismissed and cross-appeal allowed TORTS – tort of collateral abuse of process – whether proceeding brought for an improper purpose and to achieve object outside scope of legal remedy – no improper purpose – no object outside scope of legal remedy – difference between an abuse of process and tort of collateral abuse of process – tort of collateral abuse of process not committed – appeal dismissed and cross-appeal allowed

  • Catchwords: TORTS – tort of deceit – alleged representations about filing proposed proceeding – representations not made or, if made, not knowingly false – inferences – reliance not established – causation not established – tort of deceit not committed – loss/damage not established –– loss of opportunity – aggravated and exemplary damages –– appeal dismissed and cross-appeal allowed TORTS – tort of collateral abuse of process – whether proceeding brought for an improper purpose and to achieve object outside scope of legal remedy – no improper purpose – no object outside scope of legal remedy – difference between an abuse of process and tort of collateral abuse of process – tort of collateral abuse of process not committed – appeal dismissed and cross-appeal allowed

  • Catchwords: EXTRADITION – appeal against decision of the Federal Court of Australia dismissing application under s 21 of the Extradition Act 1988 (Cth) (Act) challenging the orders of a magistrate that the appellant was eligible for surrender to the Republic of Chile under s 19(9) of the Act – whether the primary judge mischaracterised the extradition offences contained in the extradition request – whether the primary judge failed to recognise the violation of a “principle of legality” under s 19(2) of Act – whether the primary judge erred in concluding that a dual criminality requirement under s 19(2)(c) of the Act could not have been made out – whether the primary judge erred in concluding that the prosecution was not a result of political pressure under s 7(b) and 7(c) of the Act –where the appellant challenges that dual criminality is satisfied – whether the primary judge erred in failing to find that the effect of the Amnesty Law is such that the appellant has been ‘pardoned’ within the meaning of s 7(e) of the Act – where the appellant has not established any of the grounds of appeal – appeal dismissed

  • Catchwords: EXTRADITION – appeal against decision of the Federal Court of Australia dismissing application under s 21 of the Extradition Act 1988 (Cth) (Act) challenging the orders of a magistrate that the appellant was eligible for surrender to the Republic of Chile under s 19(9) of the Act – whether the primary judge mischaracterised the extradition offences contained in the extradition request – whether the primary judge failed to recognise the violation of a “principle of legality” under s 19(2) of Act – whether the primary judge erred in concluding that a dual criminality requirement under s 19(2)(c) of the Act could not have been made out – whether the primary judge erred in concluding that the prosecution was not a result of political pressure under s 7(b) and 7(c) of the Act –where the appellant challenges that dual criminality is satisfied – whether the primary judge erred in failing to find that the effect of the Amnesty Law is such that the appellant has been ‘pardoned’ within the meaning of s 7(e) of the Act – where the appellant has not established any of the grounds of appeal – appeal dismissed

NSW Court of appeal