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Hamra v The Queen [2017] HCA 38

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 13 Sep 2017 Case Number: A14/2017
Criminal law – Offence of "[p]ersistent sexual exploitation of a child" – Criminal Law Consolidation Act 1935 (SA), s 50 – Where offence requires prosecution to prove two or more acts of sexual exploitation – Whether generalised nature of complainant's evidence meant that not possible to identify two or more acts of sexual exploitation – Whether no case to answer.

Criminal law – Permission to appeal – Where orders made included granting application for permission to appeal – Whether majority of Court of Criminal Appeal failed to consider question of permission to appeal.

Words and phrases – "acts of sexual exploitation", "distinct occasion", "distinct transaction", "double jeopardy", "extended unanimity", "no case to answer", "particularity", "particulars", "permission to appeal", "persistent sexual exploitation of a child".

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

The Queen v Holliday [2017] HCA 35

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 6 Sep 2017 Case Number: C3/2017
Criminal law – Incitement – Aiding, abetting, counselling or procuring – Criminal Code 2002 (ACT), ss 45, 47 – Where respondent charged with offence of incitement – Where prosecution alleged that respondent intentionally urged another person to procure third person to commit offence of kidnapping – Where offence of kidnapping not committed – Whether respondent urged commission of offence – Whether offence of incitement to procure offence exists under Criminal Code – Whether aiding, abetting, counselling or procuring commission of principal offence a discrete offence.

Words and phrases – "discrete offence", "incitement", "incitement to incite", "incitement to procure", "principal offence", "substantive offence".

Criminal Code 2002 (ACT) – Pt 2. 4.

Criminal Code (Cth) – s 11. 4.

Crimes Act 1914 (Cth) – ss 5, 7A.

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 6 Sep 2017 Case Number: S272/2016 S273/2016
Migration – Protection visa – Complementary protection – Cruel or inhuman treatment or punishment – Meaning of "intentionally inflicted" – Degrading treatment or punishment – Meaning of "intended to cause" – Where Refugee Review Tribunal found appellants would likely be imprisoned for short period if returned to Sri Lanka – Where prison conditions in Sri Lanka may not meet international standards – Where definition of "cruel or inhuman treatment or punishment" in s 5(1) of Migration Act 1958 (Cth) requires intentional infliction of pain or suffering – Where definition of "degrading treatment or punishment" in s 5(1) of Migration Act requires intention to cause extreme humiliation – Whether Sri Lankan officials intend to inflict pain or suffering or cause extreme humiliation – Whether intention established by knowledge or foresight of pain or suffering or extreme humiliation.

Words and phrases – "complementary protection regime", "cruel or inhuman treatment or punishment", "degrading treatment or punishment", "foresight of result", "intended to cause", "intention", "intentionally inflicted", "oblique intention".

Migration Act 1958 (Cth) – ss 5(1), 36.

Criminal Code (Cth) – s 5. 2(3).

Graham v Minister for Immigration and Border Protection [2017] HCA 33

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 6 Sep 2017 Case Number: M97/2016 P58/2016
Constitutional law (Cth) – Legislative power of Commonwealth – Constitution, s 75(v) – Where s 503A of Migration Act 1958 (Cth) prevents Minister for Immigration and Border Protection from being required to divulge or communicate certain information to courts – Whether s 503A requires courts to exercise judicial power in manner inconsistent with essential function of courts to find facts relevant to determination of rights in issue – Whether ss 501(3) and 503A(2) inconsistent with s 75(v) of Constitution – Whether s 503A(2)(c) denies High Court and Federal Court ability to enforce legislated limits of power – Whether s 503A(2)(c) curtails capacity of court to discern and declare whether legal limits of power conferred on Minister observed.

Migration – Jurisdictional error – Power of Minister to cancel visa on character grounds under s 501(3) of Migration Act 1958 (Cth) – Where decisions to cancel visas took into account information purportedly protected from disclosure under s 503A – Where Minister's understanding of s 503A erroneous – Where error was as to whether Minister's decision would be shielded from review by court in so far as based on information protected from disclosure under s 503A – Whether decisions invalid as consequence of error.

Words and phrases – "authorised migration officer", "character test", "fact-finding", "gazetted agency", "judicial power", "national interest", "protected from disclosure", "protected information", "public interest immunity", "purported exercise of a power", "substantial criminal record".

Constitution – ss 75(v), 77(i), 77(iii).

Migration Act 1958 (Cth) – ss 476A, 501, 501A, 501B, 501C, 503A, 503B.

Transport Accident Commission v Katanas [2017] HCA 32

Kiefel CJ, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Aug 2017 Case Number: M160/2016
Accident compensation – Transport accident – Statutory compensation scheme – Where respondent involved in motor vehicle accident and subsequently suffered mental disorder or disturbance – Where mental disorder or disturbance required to be "severe" to allow bringing of common law proceedings – Where respondent did not require inpatient psychiatric treatment – Where respondent found not to have suffered symptoms of psychological trauma at upper echelon of range – Whether severity of mental disorder or disturbance assessed only by reference to extent of treatment – Whether narrative test laid down in Humphries v Poljak [1992] 2 VR 129 followed by Court of Appeal.

Words and phrases – "mental disturbance or disorder", "narrative test", "range or spectrum of comparable cases", "serious injury", "severe", "symptoms and consequences".

Transport Accident Act 1986 (Vic) – s 93.

Plaintiff S195/2016 v Minister for Immigration and Border Protection [2017] HCA 31

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Aug 2017 Case Number: S195/2016
Migration – Regional processing – Where plaintiff "unauthorised maritime arrival" – Where plaintiff taken to regional processing centre in Papua New Guinea pursuant to s 198AD of Migration Act 1958 (Cth) – Where Commonwealth entered into arrangements with Papua New Guinea and took other actions in relation to regional processing functions – Where Supreme Court of Papua New Guinea held treatment of unauthorised maritime arrivals at Manus Island regional processing centre contrary to law of Papua New Guinea – Whether Commonwealth had power to enter into arrangements – Whether certain past and potential future actions of Commonwealth, its officers, and Minister invalid under Constitution or s 198AHA of Migration Act 1958 (Cth) by reason of Supreme Court decision – Whether arrangements entered into by Commonwealth not "arrangement[s]" for purpose of s 198AHA by reason of Supreme Court decision.

Constitutional law (Cth) – Legislative and executive power – Whether Constitution denies Commonwealth legislative or executive power to authorise or to take part in activity in another country that is unlawful under domestic law of that country.

Words and phrases – "domestic law of another country", "ministerial designation", "ministerial direction", "regional processing arrangements", "regional processing country", "regional resettlement arrangement", "unauthorised maritime arrival".

Migration Act 1958 (Cth) – ss 198AB(1), 198AD, 198AHA.

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30

Kiefel CJ, Bell, Gageler, Keane, Nettle JJ
Date: 17 Aug 2017 Case Number: P59/2016
Mining – Application for mining lease – Statutory conditions – Proper construction of s 74(1)(ca)(ii) of Mining Act 1978 (WA) – Where statutory regime conferred power on executive government of State to grant exclusive rights to exploit resources of State – Where s 74(1)(ca)(ii) provided application for mining lease "shall be accompanied by" mineralisation report – Effect of non-compliance with s 74(1)(ca)(ii) – Whether non-compliance with s 74(1)(ca)(ii) invalidated exercises of jurisdiction to progress application through to grant.

Words and phrases – "condition precedent", "indefeasibility", "informality", "irregularity", "jurisdictional error", "shall be accompanied by".

Mining Act 1978 (WA) – ss 71, 74, 74A, 75, 116(2).

Knight v Victoria [2017] HCA 29

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 17 Aug 2017 Case Number: M251/2015
Constitutional law (Cth) – Constitution – Ch III – State Supreme Courts – Principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 – Where s 74AA of Corrections Act 1986 (Vic) prevents parole order in respect of plaintiff unless Adult Parole Board satisfied plaintiff in imminent danger of dying or seriously incapacitated and does not have physical ability to harm any person – Where s 74AA identifies plaintiff by name and only applies to plaintiff – Whether s 74AA interferes with sentences imposed by Supreme Court in manner which substantially impairs institutional integrity of Supreme Court – Whether Crump v New South Wales (2012) 247 CLR 1; [2012] HCA 20 distinguishable – Whether necessary or appropriate to decide if function conferred by s 74AA could validly be exercised by division of Adult Parole Board which includes current judicial officer.

Words and phrases – "enlistment of judicial officers", "institutional integrity", "minimum term", "non-parole period", "parole", "party-specific legislation", "sentencing".

Constitution – Ch III.

Corrections Act 1986 (Vic) – ss 61, 61A, 64, 74, 74AA, 74AAB.

Corrections Amendment (Parole) Act 2014 (Vic) – ss 1, 3.

Interpretation of Legislation Act 1984 (Vic) – ss 4, 6.

Penalties and Sentences Act 1985 (Vic) – s 17.

Sentencing Act 1991 (Vic) – Sched 1, cl 2.

Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28

Kiefel CJ, Gageler, Keane, Nettle, Edelman JJ
Date: 17 Aug 2017 Case Number: S53/2017
Bankruptcy – Creditor's petition – Where petitioning creditor relied upon judgment debt – Where judgment debt resulted from contested hearing – Where no suggestion of fraud or collusion in obtaining judgment – Where evidence adduced to suggest debt not truly owing – Whether Bankruptcy Court has, and should exercise, discretion to "go behind" judgment to investigate debt.

Words and phrases – "debt truly owing", "fraud, collusion or miscarriage of justice", "'go behind' a judgment", "miscarriage of justice".

Bankruptcy Act 1966 (Cth) – s 52.

IL v The Queen [2017] HCA 27

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 9 Aug 2017 Case Number: S270/2016
Criminal law – Murder and manslaughter – Where appellant and deceased engaged in joint criminal enterprise – Where act causing death committed in course of joint criminal enterprise – Where Crown could not exclude possibility that deceased had committed act causing death – Where appellant charged with murder or manslaughter of deceased – Whether s 18(1) of Crimes Act 1900 (NSW) encompasses self-killing.

Criminal law – Joint criminal enterprise liability – Whether acts or liability for actus reus of crimes committed in course of joint criminal enterprise attributed to co-participant – Whether act of deceased causing death attributable to appellant.

Words and phrases – "attribution of acts", "complicity", "constructive murder", "derivative liability", "felo de se", "felony murder", "joint criminal enterprise liability", "primary liability", "rules of attribution", "self-murder", "suicide".

Crimes Act 1900 (NSW) – s 18.

Commissioner of Taxation v Jayasinghe [2017] HCA 26

Kiefel CJ, Gageler, Keane, Gordon, Edelman JJ
Date: 9 Aug 2017 Case Number: S275/2016
Income tax – International Organisations (Privileges and Immunities) Act 1963 (Cth) ("the IOPI Act"), s 6(1)(d)(i) – Whether taxpayer "holds an office in" an international organisation to which the IOPI Act applies – Whether taxpayer entitled to exemption from taxation on salaries and emoluments.

Income tax – Taxation Administration Act 1953 (Cth), Sched 1, s 357-60(1) – Taxation Determination TD 92/153 – Whether Commissioner bound to exempt taxpayer from taxation.

Words and phrases – "expert on mission", "incidents of the relationship", "international organisation", "person who holds an office", "skills and expertise", "specialist services", "terms of engagement".

International Organisations (Privileges and Immunities) Act 1963 (Cth) – s 6(1)(d), Fourth Schedule, Pt I.

Taxation Administration Act 1953 (Cth) – Sched 1, s 357-60(1).

United Nations (Privileges and Immunities) Regulations 1986 (Cth) – reg 10.

Taxation Determination TD 92/153.

Convention on the Privileges and Immunities of the United Nations [1949] ATS 3
– Art V, s 18.

GAX v The Queen [2017] HCA 25

Bell, Gageler, Nettle, Gordon, Edelman JJ
Date: 21 Jun 2017 Case Number: B72/2016
Criminal law – Appeal – Verdict unreasonable or insupportable having regard to evidence – Where appellant convicted on one count of aggravated indecent dealing with child and acquitted on two counts of aggravated indecent dealing with same child – Where appellant appealed conviction as unreasonable and inconsistent with acquittals – Whether Court of Appeal made independent assessment of sufficiency and quality of evidence in determining whether verdict unreasonable – Whether verdict unreasonable.

Words and phrases – "unreasonable verdict".

The Queen v Dickman [2017] HCA 24

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 21 Jun 2017 Case Number: M162/2016
Criminal law – Appeal against conviction – Identification evidence – Where victim's identification of accused on photoboard admitted at trial – Where police conveyed to victim that photograph of suspect would be on photoboard – Where victim had made erroneous previous identification – Whether probative value of identification evidence outweighed by unfair prejudice to accused – Whether evidence should have been excluded under s 137 of Evidence Act 2008 (Vic) – Whether admission of identification evidence occasioned substantial miscarriage of justice.

Words and phrases – "identification evidence", "probative value", "substantial miscarriage of justice", "unfair prejudice".

Evidence Act 2008 (Vic) – s 137.

Rizeq v Western Australia [2017] HCA 23

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 21 Jun 2017 Case Number: P55/2016
Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).

Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).

Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".

Constitution – ss 75(iv), 80.

Criminal Procedure Act 2004 (WA) – s 114(2).

Judiciary Act 1903 (Cth) – ss 39(2), 79, 80.

Misuse of Drugs Act 1981 (WA) – s 6(1)(a).

New South Wales v DC [2017] HCA 22

Kiefel CJ, Bell, Gageler, Keane, Gordon JJ
Date: 14 Jun 2017 Case Number: S35/2017
Negligence – Duty of care – Statutory power to report abuse of child to police – Where duty of care in exercise of statutory powers conceded – Where scope or extent of duty disputed – Where primary judge found that no authority acting reasonably could regard failure to report abuse to police as reasonable exercise of statutory powers in present case – Where State conceded that only reasonable exercise of statutory powers in some cases may be to report abuse to police – Whether appropriate in light of concessions to consider scope or extent of duty – Special leave to appeal revoked.

Tort – Vicarious liability – Where State conceded vicarious liability for breach of duty of care – Where statute providing for vicarious liability of Crown not in force – Where concession may not have reflected applicable law at relevant times – Special leave to appeal revoked.

Words and phrases – "duty of care", "scope or extent of duty", "statutory discretionary power", "vicarious liability".

Child Welfare Act 1939 (NSW) – Pt XIV, s 148B(5).

Civil Liability Act 2002 (NSW) – s 43A.

Law Reform (Vicarious Liability) Act 1983 (NSW) – s 8.

Air New Zealand Ltd v Australian Competition and Consumer Commission [2017] HCA 21

Kiefel CJ, Bell, Keane, Nettle, Gordon JJ
Date: 14 Jun 2017 Case Number: S245/2016 S248/2016
Trade practices – Restrictive trade practices – Price fixing – Market identification – Location of market – Meaning of market "in Australia" – Where airlines competed to supply unidirectional air cargo services from ports of origin outside Australia to destination ports within Australia – Where airlines arrived at understanding to impose various surcharges and fees for supply of air cargo services – Whether market for air cargo services "in Australia" for purposes of Trade Practices Act 1974 (Cth).

Trade practices – Restrictive trade practices – Price fixing – Foreign state compulsion – Where airlines contravened s 45 of Trade Practices Act 1974 (Cth) – Whether conduct compelled by foreign law or foreign regulator's administrative practices.

Statutory interpretation – Inconsistency – Where s 13(b) of Air Navigation Act 1920 (Cth) required airlines to comply with "agreement or arrangement" – Where Australia-Indonesia Air Services Agreement "agreement or arrangement" within meaning of ss 12(2) and 13(b) of Air Navigation Act – Where Australia-Indonesia Air Services Agreement required agreement between international airlines on minimum tariffs – Where ss 45 and 45A of Trade Practices Act 1974 (Cth) prohibited arriving at understandings concerning prices with competitors – Whether ss 12 and 13 of Air Navigation Act inconsistent with ss 45 and 45A of Trade Practices Act such that latter did not apply to contravening conduct.

Words and phrases – "competition", "foreign state compulsion", "market identification", "market in Australia", "otherwise competitive with", "practically and operatively inconsistent", "price fixing", "rivalrous behaviour", "substitutability", "supply and demand".

Air Navigation Act 1920 (Cth) – ss 12, 13.

Trade Practices Act 1974 (Cth) – ss 4, 4E, 45(2), 45(3), 45A.

Hughes v The Queen [2017] HCA 20

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Jun 2017 Case Number: S226/2016
Evidence – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where appellant charged with 11 sexual offences against five female children aged under 16 years – Where prosecution permitted to adduce evidence of each complainant and other witnesses as tendency evidence – Where alleged tendencies identified as having sexual interest in underage girls and as using relationships to gain access to underage girls in order to engage in sexual activities with them – Whether tendency evidence required to display features of similarity with facts in issue in order to have "significant probative value" – Whether tendency evidence had "significant probative value".

Words and phrases – "modus operandi", "pattern of conduct", "probative value", "significant probative value", "tendency evidence", "underlying unity".

Evidence Act 1995 (NSW) – s 97(1)(b).

Smith v The Queen [2017] HCA 19

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 10 May 2017 Case Number: S249/2016 M144/2016
Criminal law – Fault element – Intent – Inferential reasoning – Importation of commercial quantity of border controlled drug – Where accused persons brought substance into Australia – Where substance concealed in items – Where accused persons denied intent to import substance – Where accused persons perceived real or significant chance of presence of substance when entering Australia – Whether permissible to infer intent for purposes of Criminal Code (Cth) from awareness of real or significant chance of presence of substance – Whether process of inferential reasoning identified in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 applicable – Whether jury directions conflated intent with recklessness.

Words and phrases – "inferential reasoning", "intent to import", "intention", "jury directions", "real or significant chance", "reckless", "unsafe verdict".

Criminal Code (Cth) – ss 5. 2, 5. 4, 5. 6, 307. 1.

Aubrey v The Queen [2017] HCA 18

Kiefel CJ, Bell, Keane, Nettle, Edelman JJ
Date: 10 May 2017 Case Number: S274/2016
Criminal law – Infliction of grievous bodily harm – Meaning of "inflicts" – Where appellant caused complainant to contract human immunodeficiency virus – Whether infliction requires force and immediate physical injury – Whether communication of infection or disease amounts to infliction – Consideration of R v Clarence (1888) 22 QBD 23 and R v Dica [2004] QB 1257.

Criminal law – Fault element – Recklessness – Foresight of risk – Where appellant diagnosed with human immunodeficiency virus – Where appellant knew of possibility of transmitting virus through unprotected sexual intercourse – Whether foresight of possibility of risk sufficient to establish recklessness.

Words and phrases – "always speaking", "contemporary ideas and understanding", "grievous bodily harm", "inflicts", "maliciously", "recklessly".

Crimes Act 1900 (NSW) – ss 5, 35(1)(b), 36.

Pickering v The Queen [2017] HCA 17

Kiefel CJ, Gageler, Nettle, Gordon, Edelman JJ
Date: 3 May 2017 Case Number: B68/2016
Criminal law – Justification and excuse – Resisting actual and unlawful violence threatened to person – Where appellant stabbed deceased – Where appellant acquitted of murder but convicted of manslaughter – Where s 31(1) of Criminal Code (Q) not left to jury – Whether appellant able to rely on s 31(1) to deny criminal responsibility in relation to offence of manslaughter – Whether s 31(2) renders s 31(1) unavailable wherever evidence discloses that act of accused constitutes offence described in s 31(2) regardless of charge.

Words and phrases – "act", "criminally responsible", "liable to punishment", "offence".

Criminal Code (Q) – s 31.

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