Judgments, ordered by date

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Minister for Immigration and Border Protection v CED16 [2020] HCA 24

Date: 30 Jun 2020 Case Number: S347/2019
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("Authority") – Review by Authority under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection refused to grant first respondent protection visa – Where decision referred to Authority for review – Where Authority ordinarily obliged to consider "review material" provided by Secretary of Department of Immigration and Border Protection ("Secretary") without considering "new information" – Where review material must include material considered by Secretary to be relevant to review – Where review material included identity assessment form – Where Authority notified that s 473GB applied to identity assessment form – Where notification included certificate purporting to certify that disclosure of information or matter contained in identity assessment form contrary to public interest – Where certificate invalid – Where certificate not before delegate at time of making decision under review – Whether certificate "new information" within meaning of s 473DC(1) – Whether certificate a "document" or contained "information" – Whether Authority could be inferred to have considered that certificate may have been relevant to conduct of review.

Words and phrases – "certificate", "document", "documentation or information of an evidentiary nature", "fact, subject or event", "fast track reviewable decision", "identity assessment form", "information", "new information", "notification", "procedural obligation", "protection visa", "relevant", "relevant to the conduct of the review", "review material".

Migration Act 1958 (Cth) – Pt 7AA.

Nguyen v The Queen [2020] HCA 23

Date: 30 Jun 2020 Case Number: D15/2019
Evidence – Criminal trial – Mixed statements – Where appellant interviewed by police prior to being charged – Where appellant made inculpatory and exculpatory statements during interview ("mixed statements") – Where recorded interview relevant and admissible – Where recorded interview not tendered by prosecution at trial – Whether prosecution's obligation to put case fully and fairly requires tender of records of interview containing mixed statements.

Words and phrases – "admissibility of mixed statements", "admissions", "all available, cogent and admissible evidence", "duty of fairness", "ethical practice", "fair trial", "fully and fairly", "inculpatory and exculpatory statements", "miscarriage of justice", "mixed record of interview", "mixed statement", "obligation to tender", "prosecutorial discretion", "prosecutorial duty", "record of interview", "rule of practice", "speculation by the jury", "tactical decision".

Evidence (National Uniform Legislation) Act 2011 (NT) – ss 59(1), 81, 190.

Binsaris v Northern Territory [2020] HCA 22

Date: 3 Jun 2020 Case Number: D11/2019 D12/2019 D13/2019 D14/2019
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".

Prisons (Correctional Services) Act (NT) – ss 9, 62(2).

Weapons Control Act (NT) – ss 6, 12.

Youth Justice Act (NT) – ss 151(3), 152(1), 153, 154, 157(2), 159, 160.

Cumberland v The Queen [2020] HCA 21

Date: 3 Jun 2020 Case Number: D23/2019
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".

Criminal Code (NT) – s 414(1)(c).

Pickett v Western Australia [2020] HCA 20

Date: 29 May 2020 Case Number: P45/2019 P46/2019 P47/2019 P48/2019 P49/2019
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".

Criminal Code (WA) – Chs V, XXVI; ss 1, 2, 7, 8, 29, 36, 268, 277, 279.

Hocking v Director-General of the National Archives of Australia [2020] HCA 19

Date: 29 May 2020 Case Number: S262/2019
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".

Constitution – covering cll 3, 4, s 2, Ch II.

Archives Act 1983 (Cth) – ss 2A, 3, 3C, 5, 6, 62, 64, 70, Pt V.

Governor –General Act 1974 (Cth), s 6.

Bussa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCA 18

Date: 24 Apr 2020 Case Number: M164/2019
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".

Constitution – s 75(v).

Migration Regulations 1994 (Cth) – Sch 2, cl 485. 223.

Moore v Scenic Tours Pty Ltd [2020] HCA 17

Date: 24 Apr 2020 Case Number: S285/2019
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".

Competition and Consumer Act 2010 (Cth) – Sch 2, ss 60, 61, 267, 275.

Civil Liability Act 2002 (NSW) – ss 3, 11, 11A, 16.

Commonwealth of Australia v Helicopter Resources Pty Ltd [2020] HCA 16

Date: 24 Apr 2020 Case Number: S217/2019
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".

Coroners Act 1997 (ACT) – ss 36, 43, 58(6).

Evidence Act 2011 (ACT) – s 87(1)(b).

Coughlan v The Queen [2020] HCA 15

Date: 24 Apr 2020 Case Number: B60/2019
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".

Criminal Code (Qld) – ss 408C(1)(c), 459, 461(1)(a).

Smethurst v Commissioner of Police [2020] HCA 14

Date: 15 Apr 2020 Case Number: S196/2019
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".

Constitution – s 75(v).

Australian Federal Police Act 1979 (Cth) – s 8.

Crimes Act 1914 (Cth) – Pts IAA, VII; ss 3C, 3E, 3F, 3H, 3LA, 3ZQU, 79(3).

Judiciary Act 1903 (Cth) – s 32.

Re Young [2020] HCA 13

Date: 15 Apr 2020 Case Number: S12/2020 S13/2020
High Court – Leave to issue or file proceeding – Removal of proceedings – Where causes said to be pending in Supreme Court of New South Wales said to involve matter "arising under any treaty" within meaning of s 75(i) of Constitution – Where applications for removal of causes into High Court under s 40 of Judiciary Act 1903 (Cth) were refused – Where applicant sought to file documents in the form of applications for leave to appeal and accompanying summons – Where Registrar directed to refuse to issue or file documents without leave of a Justice first had and obtained – Whether appellate jurisdiction of High Court extends to hearing and determining appeal from order granting or refusing removal of cause – Whether order is under implied exception to appellate jurisdiction prescribed by Parliament within meaning of s 73(i) of Constitution – Whether conditions for grant of leave to appeal established.

Words and phrases – "abuse of process", "appellate jurisdiction", "cause", "exception", "federal jurisdiction", "incidental judicial power", "leave to issue or file", "order granting or refusing removal of a cause", "original jurisdiction", "preliminary and discretionary nature", "proceedings inter partes", "removal", "special leave", "substantial injustice", "treaty".

Constitution – ss 51(xxxix), 73(i), (ii), 75, 76, 77(iii).

High Court Rules 2004 (Cth) – rr 6. 07. 1, 6. 07. 2, 6. 07. 3, 26. 07. 1.

Judiciary Act 1903 (Cth) – ss 2, 30(a), 34(1), (2), 35(2), 40(1), (2)(b), 42, 78B.

Pell v The Queen [2020] HCA 12

Date: 7 Apr 2020 Case Number: M112/2019
Criminal law – Sexual offences against children – Appeal against conviction by jury on ground that verdict unreasonable or cannot be supported having regard to whole of evidence – Where prosecution case wholly dependent upon acceptance of truthfulness and reliability of complainant's account – Where jury assessed complainant's evidence as credible and reliable – Where witnesses gave unchallenged evidence of specific recollections, practices and routines inconsistent with acceptance of complainant's account ("unchallenged inconsistent evidence") – Where Court of Appeal required to take into account forensic disadvantage experienced by applicant – Whether prosecution negatived reasonable possibility that applicant did not commit offences – Whether Court of Appeal required applicant to establish offending impossible to raise reasonable doubt – Whether unchallenged inconsistent evidence required jury, acting rationally, to have entertained doubt as to applicant's guilt.

Criminal practice – Appeal – Video evidence – Where evidence of complainant and other witnesses recorded – Where Court of Appeal viewed recorded witness testimony – Whether proper discharge of appellate court's function necessitated review of recorded witness testimony.

Words and phrases – "beyond reasonable doubt", "compounding improbabilities", "credibility and reliability", "function of the appellate court", "function of the jury", "impossibility", "improbability of events", "invariable practice", "jury's advantage in seeing and hearing the witnesses", "negatived the reasonable possibility", "opportunity witnesses", "realistic opportunity for the offending to have occurred", "religious ritual", "routines and practices", "significant forensic disadvantage", "significant possibility that an innocent person has been convicted", "solid obstacles to conviction", "standard and burden of proof", "unchallenged evidence", "uncorroborated", "video-recordings of the witnesses at trial".

Crimes Act 1958 (Vic) – ss 45(1), 47(1).

Criminal Procedure Act 2009 (Vic) – ss 276(1)(a), 378, 379(b)(i).

Judiciary Act 1903 (Cth) – s 37.

Jury Directions Act 2015 (Vic) – ss 4A, 39.

Swan v The Queen [2020] HCA 11

Date: 18 Mar 2020 Case Number: S291/2019
Criminal law – Murder – Causation – Where appellant's assault caused serious injury to victim – Where victim suffered severe deterioration in quality of life as a consequence of assault – Where victim later suffered fractured femur requiring surgery – Where decision made not to undergo possible life-saving surgery – Whether sufficient evidence for it to be open to jury to convict on basis that low quality of life resulting from assault caused decision not to undergo surgery – Whether appellant's conduct a "substantial or significant cause of death" – Whether appellant legally responsible for death.

Words and phrases – "but for", "causation", "legal responsibility", "murder", "substantial or significant", "sufficiently substantial".

Crimes Act 1900 (NSW) – s 18(1)(a).

Strbak v The Queen [2020] HCA 10

Date: 18 Mar 2020
Criminal law – Sentence – Manslaughter – Where appellant pleaded guilty to manslaughter – Where hearing held to determine factual basis upon which appellant to be sentenced – Where acts comprising offence disputed – Where appellant failed to give evidence at sentencing hearing – Whether sentencing judge applied R v Miller [2004] 1 Qd R 548 – Whether sentencing judge drew adverse inferences from appellant's silence in making factual findings – Whether R v Miller [2004] 1 Qd R 548 wrongly decided – Whether sentencing judge permitted to more readily draw inferences adverse to appellant.

Words and phrases – "absence of contradictory evidence", "accusatorial proceeding", "adverse inference", "balance of probabilities", "beyond reasonable doubt", "burden of proof", "civil standard", "contested facts", "contradictory out of court statements", "criminal standard", "fact-finding", "failure to give evidence", "Jones v Dunkel inference", "plea of guilty", "presumption of innocence", "rare and exceptional circumstances", "right to silence", "sentencing hearing", "standard of proof".

Evidence Act 1977 (Qld) – s 132C.

Western Australia v Manado [2020] HCA 9

Date: 18 Mar 2020 Case Number: P34/2019 P35/2019 P36/2019 P37/2019
Aboriginals – Native title to land and waters – Determinations of – Native title rights and interests – Where s 212(2) of Native Title Act 1993 (Cth) provided that Commonwealth, State or Territory may by legislation confirm existing public access to and enjoyment of beaches and other categories of lands or waters – Where Parliament of Western Australia enacted legislation confirming public access and enjoyment pursuant to s 212(2) – Where s 225(c) of Native Title Act required that determination of native title rights and interests include nature and extent of "any other interests" in relation to determination area – Where s 253 of Native Title Act defined "interest" as including any other right or privilege over or in connection with land or waters – Whether s 225(c) required determination of native title to include reference to confirmation – Whether access and enjoyment capable of confirmation limited to legally enforceable rights and privileges – Whether act of confirmation through legislation enacted in reliance on s 212(2) gave rise to "right" or "privilege" amounting to "other interest" in relation to determination area.

Words and phrases – "confirmation", "confirmed access and enjoyment", "determination area", "determination of native title", "general expectation of public access", "interest", "lack of legal prohibition", "land or waters", "liberty", "native title", "nature and extent of any other interests", "ordinary meaning", "other interest", "principle of public access", "privilege", "public access and enjoyment", "right", "unallocated Crown land".

Coastal Waters (State Powers) Act 1980 (Cth) – ss 4, 5.

Coastal Waters (State Title) Act 1980 (Cth) – s 4.

Land Act 1933 (WA) – ss 3, 164.

Land Administration Act 1997 (WA) – ss 3, 267.

Native Title Act 1993 (Cth) – ss 94A, 212, 225, 253.

Off –shore (Application of Laws) Act 1982 (WA), s 3.

Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) – s 14.

The Queen v Guode [2020] HCA 8

Date: 18 Mar 2020 Case Number: M75/2019
Criminal law – Sentence – Irrelevant consideration – Where respondent pleaded guilty to murder contrary to common law and to infanticide and attempted murder contrary to ss 6(1) and 321M of Crimes Act 1958 (Vic) respectively – Where primary judge sentenced respondent to 26 years and six months' imprisonment with non-parole period of 20 years – Where Court of Appeal allowed appeal against sentence and re-sentenced respondent to 18 years' imprisonment with non-parole period of 14 years – Where respondent's mental condition at time of offending called for application of principles stated in R v Verdins (2007) 16 VR 269 – Where element of offence of infanticide included disturbance of balance of mind – Where infanticide carried significantly shorter maximum penalty than offences of murder and attempted murder – Whether Court of Appeal erred by evaluating appropriateness of sentences imposed for murder and attempted murder in light of lesser maximum penalty for offence of infanticide.

Words and phrases – "acceptance of a plea", "attempted murder", "disturbance of mind", "impaired mental functioning", "infanticide", "irrelevant consideration", "manifestly excessive", "mental condition", "mitigating factors", "moral culpability", "murder", "sentencing", "sentencing considerations", "specific error", "Verdins considerations".

Crimes Act 1958 (Vic) – ss 3, 6(1), 321P(1)-(1A).

Commissioner of State Revenue v Rojoda Pty Ltd [2020] HCA 7

Date: 18 Mar 2020 Case Number: P26/2019
Stamp duties – Declaration of trust – Partnership – Dissolution – Partnership assets – Nature of partners' rights in relation to partnership assets – Where freehold titles to land held by two partners as joint tenants – Where other partners not registered title holders – Where partnerships dissolved but not wound up upon death of one partner holding titles – Where surviving partner declared trusts over freehold titles for benefit of other partners in proportion to partnership interests – Where Commissioner assessed declaration of trust as "dutiable transaction" within meaning of Duties Act 2008 (WA), s 11(1) – Whether partner holding freehold titles trustee for other partners – Whether declaration of trust by surviving partner holding freehold titles created new interests in land – Whether declaration of trust dutiable transaction.

Words and phrases – "beneficial interest", "conveyance", "declaration of trust", "dissolution", "dutiable transaction", "equitable interest", "non-specific interest", "partners' interest", "partnership property", "right to account and distribution", "transfer", "trust for partnership", "winding up".

Partnership Act 1895 (WA) – ss 30, 32, 33, 50, 57.

Duties Act 2008 (WA) – ss 11(1)(c), 78.

KMC v Director of Public Prosecutions (SA) [2020] HCA 6

Date: 18 Mar 2020 Case Number: A20/2019
Criminal law – Sentence – Offence of persistent sexual exploitation of child – Where applicant convicted of persistent sexual exploitation of child contrary to s 50(1) of Criminal Law Consolidation Act 1935 (SA) ("CLCA") – Where Chiro v The Queen (2017) 260 CLR 425 handed down after sentencing – Where Chiro required sentencing judge to ask jury to identify underlying acts of sexual exploitation found proved or otherwise sentence on basis most favourable to offender – Where not known which alleged acts of sexual exploitation jury found had been proved beyond reasonable doubt – Where applicant not sentenced on basis of facts most favourable to applicant – Where s 9 of Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) ("Amending Act") provided that sentence imposed for offence against s 50 of CLCA not affected by error or otherwise manifestly excessive merely because, relevantly, sentencing court sentenced person having regard to acts of sexual exploitation it determined proved beyond reasonable doubt – Whether s 9(1) of Amending Act engaged – Whether sentencing remarks identified acts of sexual exploitation determined by sentencing court to have been proved beyond reasonable doubt.

Words and phrases – "acts of sexual exploitation", "extension of time", "facts most favourable", "persistent sexual exploitation of a child", "proved beyond a reasonable doubt", "sentence", "sentencing judge", "sentencing remarks", "underlying acts".

Criminal Law Consolidation Act 1935 (SA) – s 50.

Statutes Amendment (Attorney –General's Portfolio) (No 2) Act 2017 (SA), s 9.

Australian Securities and Investments Commission v King [2020] HCA 4

Date: 11 Mar 2020 Case Number: B29/2019
Corporations – Officers – Meaning of "officer" of corporation – Where para (b)(ii) of definition in s 9 of Corporations Act 2001 (Cth) defined "officer" of corporation as person who had capacity to affect significantly corporation's financial standing – Where MFS Investment Management Pty Ltd ("MFSIM") responsible entity of registered managed investment scheme, Premium Income Fund ("PIF") – Where MFSIM entered into loan facility to be used solely for purposes of PIF – Where MFSIM drew down on loan facility to pay debts of other related companies in MFS Group – Where MFSIM secured no promise of repayment of funds to PIF – Where first respondent was Chief Executive Officer of parent company of MFS Group – Where first respondent acted as "overall boss" of MFS Group and assumed "overall responsibility" for MFSIM – Where first respondent approved and authorised disbursement of funds from loan facility knowing no benefit or consideration would pass to PIF – Where first respondent not director of MFSIM at relevant time – Where Australian Securities and Investments Commission alleged first respondent breached duties as officer of MFSIM in contravention of Corporations Act – Whether para (b)(ii) of definition of "officer" in Corporations Act requires person to have acted in recognised position within corporation with rights and duties attached to it – Whether first respondent "officer" of MFSIM.

Words and phrases – "capacity to affect significantly the corporation's financial standing", "chief executive officer", "corporate group", "de facto director", "financial standing", "managed investment scheme", "management of corporation", "misuse of funds", "named office", "office", "officer", "officer of a corporation", "recognised position".

Corporations Act 2001 (Cth) – ss 9, 179, 180, 601FD.

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