Judgments, ordered by case name

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Johnson v The Queen [2004] HCA 15

78 ALJR 616; 205 ALR 346
Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ
Date: 30 Mar 2004 Case Number: P44/2003
Criminal law – Sentencing - Federal offences - Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied - Whether sentencing judge applied peculiarly Western Australian sentencing principles - Whether express reference to relevant considerations in s 16A(2), Crimes Act 1914 (Cth) necessary.

Criminal law – Sentencing - Federal offences - Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied - Totality principle where sentencing for commission of several offences - Whether sentencing judge must fix sentence for each offence and aggregate them before determining questions of totality or concurrence - Whether sentencing judge may in some circumstances lower each sentence before aggregation - Instinctive or intuitive synthesis approach to sentencing.

Criminal law – Sentencing - Federal offences - Appellant convicted of two counts of attempting to obtain possession of prohibited imports to which s 233B, Customs Act 1901 (Cth) applied - One transaction rule - Where two offences contain common element - Effect of factual errors made by Court of Criminal Appeal - Whether factual errors made by Court of Criminal Appeal in dismissing appeal necessarily leads to conclusion that sentencing judge erred - Whether sentence properly reflects consideration of whether defendant was truly engaged upon one multi-faceted course of criminal conduct.

Crimes Act 1914 (Cth) – ss 16A, 16B, 19(2).

Customs Act 1901 (Cth) – s 233B.

Johnson v The Queen [2018] HCA 48

Kiefel CJ, Bell, Gageler, Nettle, Gordon JJ
Date: 17 Oct 2018 Case Number: A9/2018
Criminal law – Appeal against convictions − Where appellant convicted of five counts of sexual offending against single complainant being his sister − Where counts joined − Where s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − Where applications to have counts one and two tried separately and to prevent Crown from leading evidence of discreditable conduct against complainant dismissed − Where Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax and to show relationship between appellant and complainant − Where verdicts on counts one and three quashed on appeal − Whether evidence of appellant's other alleged sexual misconduct admissible on trial of each remaining count − Whether joinder occasioned miscarriage of justice.

Evidence – Criminal trial − Sexual offences − Propensity evidence − Admissibility − Where Crown relied on uncharged acts as relationship or context evidence − Where evidence of one uncharged act improperly admitted − Whether miscarriage of justice.

Words and phrases – "admissibility", "context evidence", "contextual use", "discreditable conduct evidence", "effluxion of time", "impermissible use", "non-propensity use", "other alleged sexual misconduct", "permissible use", "prejudicial effect", "probative value", "relationship evidence", "uncharged act".

Evidence Act 1929 (SA) – Pt 3 Div 3, s 34P.

Jones v Bartlett [2000] HCA 56

205 CLR 166; 75 ALJR 1; 176 ALR 137
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 16 Nov 2000 Case Number: P59/1999
Negligence – Duty of care - Person lawfully on premises injured by glass door - Scope of landlord's duty of care to a person who resides on premises - Scope of landlord's duty of care in respect of state of premises - Whether duty to have premises inspected by expert.

Contracts – Tenancy agreement - Whether s 11 of the Property Law Act 1969 (WA) allows a third party to sue for breach of tenancy agreement.

Statutory liability – Occupiers' liability - Whether landlord was an "occupier of premises" under s 5(1) of the Occupiers' Liability Act 1985 (WA) - Duty of landlord under s 9(1) of the Occupiers' Liability Act 1985 (WA).

Residential Tenancies Act 1987 (WA) – s 42.

Property Law Act 1969 (WA) – s 11.

Occupiers' Liability Act 1985 (WA) – ss 5(1), 9(1).

Words and phrases – "occupier of premises".

Jones v The Queen [2009] HCA 17

83 ALJR 671; 254 ALR 626
French CJ, Hayne, Heydon, Kiefel, Bell JJ
Date: 29 Apr 2009 Case Number: B40/2008
Criminal law – Evidence - Joint murder trial - Admissibility of evidence adduced by accused of bad character or propensity of co-accused - Whether appellant prevented by trial judge from fully adducing relevant admissible evidence - Whether jury misdirected as to use of evidence of appellant's bad character.

Criminal law – Appeals - Application of proviso.

Words and phrases – "substantial miscarriage of justice".

Criminal Code (Q) – s 668E(1A).

Joslyn v Berryman [2003] HCA 34

214 CLR 552; 77 ALJR 1233; 198 ALR 137
McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 18 Jun 2003 Case Number: S125/2002;S126/2002;S122/2002;
Negligence – Contributory negligence – Passenger in defective vehicle with intoxicated and inexperienced driver – Whether reasonable person would have foreseen a risk of serious injury – Facts and circumstances relevant to contributory negligence.

Negligence – Contributory negligence – Motor Accidents Act 1988 (NSW), s 74(2) – Whether passenger was "aware or ought to have been aware" that driver's ability was affected by alcohol – Objective or subjective test – Facts and circumstances to be taken into account.

Negligence – Contributory negligence – Motor Accidents Act 1988 (NSW), s 74(6) – Whether passenger a "voluntary passenger".

Appeal – Contributory negligence – Application of apportionment legislation – Factual considerations – Utility of earlier judicial decisions – Whether relevant to disclose common approaches at trial and on appeal – Whether relevant to disclose purpose of statutory amendments obliging finding of contributory negligence in specified circumstances.

Words and phrases – "aware or ought to have been aware", "just and equitable in the circumstances of the case", "responsibility for the damage", "voluntary passenger".

Law Reform (Miscellaneous Provisions) Act 1965 (NSW) – s 10.

Motor Accidents Act 1988 (NSW) – s 74.

JT International SA v Commonwealth of Australia [2012] HCA 43

250 CLR 1; 86 ALJR 1297; 291 ALR 669
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 5 Oct 2012 Case Number: S409/2011 S389/2011
Constitutional law (Cth) – Legislative power – Section 51(xxxi) – Acquisition of property on just terms – Plaintiffs hold registered and unregistered trade marks and other intellectual property rights in relation to tobacco product packaging – Tobacco Plain Packaging Act 2011 (Cth) regulates appearance of tobacco product packaging and use of trade marks on such packaging – Whether plaintiffs' intellectual property rights, goodwill and rights to determine appearance of tobacco products constitute "property" for purposes of s 51(xxxi) – Whether Act effects an acquisition of plaintiffs' property otherwise than on just terms.

Words and phrases – "acquisition of property", "intellectual property", "just terms", "trade marks".

Constitution – s 51(xxxi).

Tobacco Plain Packaging Act 2011 (Cth) – ss 15, 18-27, 30-48.

Competition and Consumer (Tobacco) Information Standard 2011 (Cth) – ss 1. 5, 3. 1, 4. 1, 9. 13, 9. 19-19. 20.

Tobacco Plain Packaging Regulations 2011 (Cth) – Divs 2. 1-2. 4, 3. 1.

K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4

237 CLR 501; 83 ALJR 327; 252 ALR 471
French CJ, Gummow, Kirby, Hayne, Heydon, Crennan, Kiefel JJ
Date: 2 Feb 2009 Case Number: A12/2008
Constitutional law (Cth) – Chapter III - Judicial power - Vesting of federal jurisdiction in State courts - Licensing Court of South Australia established under Liquor Licensing Act 1997 (SA) ("Licensing Act") - Licensing Court constituted by District Court judge - Whether Licensing Court "court of a State" within meaning of s 77(iii) of Constitution - Whether Licensing Court invested with federal jurisdiction by s 39(2) of Judiciary Act 1903 (Cth) ("Judiciary Act") - Significance of absence of express power of punishment for contempt.

Constitutional law (Cth) – Chapter III - Judicial power - Vesting of federal jurisdiction in State courts - Integrity of State courts - Requirement of impartiality and independence for repository of federal jurisdiction - Licensing Act, s 28A required Licensing Court to take steps to maintain confidentiality of information classified by Commissioner of Police as "criminal intelligence" in proceedings under Licensing Act - Steps included receipt of evidence and argument in absence of parties - Whether s 28A invalid for denying Licensing Court character of independent and impartial tribunal.

Statutes – Interpretation - Licensing Act, s 28A - "Criminal intelligence" defined to include information which "could reasonably be expected" to prejudice criminal investigations - Whether classification by Commissioner of Police of information as "criminal intelligence" amenable to review by Licensing Court - Whether mandatory for Licensing Court to hear evidence and argument in absence of parties.

Constitutional law (Cth) – Chapter III - Judicial power - Vesting of federal jurisdiction in State courts - Integrity of State courts - Whether consequence of impairment of integrity is that Licensing Court no longer "court of a State" to which s 77(iii) of Constitution applies - Whether s 39(2) of Judiciary Act ambulatory and would cease to apply - Whether States may establish "court of a State" then subsequently deprive court of independence and impartiality.

Constitutional law (Cth) – Chapter III - Judicial power - Nature of judicial power - Whether exercise by Licensing Court of judicial or administrative power.

Practice and procedure – Interveners - Procedure where interveners seek remedy and assert arguments opposed by immediate parties.

Words and phrases – "could reasonably be expected", "court of a State", "criminal intelligence".

Constitution – Ch III, s 77.

Judiciary Act 1903 (Cth) – s 39.

Liquor Licensing Act 1997 (SA) – s 28A.

Kakavas v Crown Melbourne Limited [2013] HCA 25

87 ALJR 708; 298 ALR 35
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 5 Jun 2013 Case Number: M117/2012
Equity – Unconscionable conduct – Where appellant gambled at first respondent's casino and lost $20. 5 million – Where appellant diagnosed as suffering from condition known as "pathological gambling" – Where appellant subject to "interstate exclusion order" under Casino Control Act 1991 (Vic) – Whether gambling transactions affected by unconscionable dealing – Whether appellant suffered from special disadvantage making him susceptible to exploitation – Whether first respondent had sufficient knowledge of any special disadvantage.

Words and phrases – "actual knowledge", "constructive notice", "interstate exclusion order", "special disadvantage", "unconscionable conduct".

Casino Control Act 1991 (Vic) – ss 76, 77(2), 78B.

Trade Practices Act 1974 (Cth) – s 51AA.

Kalbasi v Western Australia [2018] HCA 7

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 14 Mar 2018 Case Number: P21/2017
Criminal law – Appeal against conviction – Application of proviso – Where appellant indicted for attempting to possess prohibited drug with intent to sell or supply to another – Where police replaced prohibited drug with another substance – Where trial judge and counsel erroneously assumed s 11 of Misuse of Drugs Act 1981 (WA) applied deeming possession of quantity of drugs sufficient to prove possession for purpose of sale or supply to another – Where jury erroneously directed that proof of possession of substitute "drugs" would suffice to prove intention to sell or supply to another – Where intention not otherwise live issue at trial – Where sole issue at trial was appellant's possession of substitute "drugs" – Where prosecution concedes erroneous direction as to intention but contends "no substantial miscarriage of justice has occurred" – Whether "no substantial miscarriage of justice has occurred" – Whether misdirection precluded application of proviso.

Words and phrases – "deemed intent", "error of outcome", "error of process", "fundamental defect", "fundamental error", "fundamentally flawed", "inevitability of result", "intention", "loss of a fair or real chance of acquittal", "miscarriage of justice", "negative proposition", "proviso", "reasonable jury", "substantial miscarriage of justice", "this jury".

Criminal Appeals Act 2004 (WA) – s 30.

Misuse of Drugs Act 1981 (WA) – ss 6(1)(a), 11, 33(1), 34.

Kamleh v The Queen [2005] HCA 2

79 ALJR 541; 213 ALR 97
Gleeson CJ, McHugh, Kirby, Hayne, Heydon JJ
Date: 3 Feb 2005 Case Number: A30/2004
Criminal law – Evidence – Hearsay – Appellant charged with murder – Alleged accomplice not called as witness – Admissibility of evidence of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements – Whether evidence of out-of-court statements adduced to prove intention is admissible – Walton v The Queen (1989) 166 CLR 283 discussed.

Evidence – Hearsay – Criminal law – Admissibility of out-of-court statements to prove relevant facts other than the truth of the representations made in the statements – Walton v The Queen (1989) 166 CLR 283 discussed.

Karpany v Dietman [2013] HCA 47

88 ALJR 90; 303 ALR 216
French CJ, Hayne, Crennan, Kiefel, Bell, Gageler, Keane JJ
Date: 6 Nov 2013 Case Number: A18/2012
Native title – Native title right to take fish – Fisheries Act 1971 (SA) prohibited taking fish without licence or except as provided by the Act – Fisheries Act permitted taking fish by certain means without licence for non-commercial purposes – Whether statute inconsistent with continued existence of native title right to take fish – Whether native title right extinguished by pre-1975 State fisheries legislation.

Native title – Native title right to take fish – Native title holders charged with possessing undersize abalone contrary to s 72(2)(c) of Fisheries Management Act 2007 (SA) – Section 115 of Fisheries Management Act provided for ministerial exemption – Whether ministerial exemption "licence, permit or other instrument" for the purposes of s 211 of Native Title Act 1993 (Cth).

Words and phrases – "extinguishment", "inconsistent with the continued existence of a native title right", "licence, permit or other instrument", "native title rights and interests".

Fisheries Act 1917 (SA) – ss 39, 48.

Fisheries Act 1971 (SA) – ss 28, 29, 42, 47.

Fisheries Management Act 2007 (SA) – ss 3, 5, 72, 115.

Native Title Act 1993 (Cth) – ss 11, 211, 223.

Kelly v The Queen [2004] HCA 12

218 CLR 216; 78 ALJR 538; 205 ALR 274
Gleeson CJ, McHugh, Kirby, Hayne, Heydon JJ
Date: 10 Mar 2004 Case Number: H1/2003
Criminal Law – Evidence - Admissibility of statement made to police after video-recorded interview was completed - Where statement was not made in response to any police question - Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Evidence – Admissibility - Statement made to police after video-recorded interview completed - Where statement was not made in response to any police question - Whether the statement was "made in the course of official questioning" within the meaning of s 8(1)(b) of the Criminal Law (Detention and Interrogation) Act 1995 (Tas).

Criminal Law – Appeal - Proviso - No substantial miscarriage of justice.

Statutes – Construction - Purposive construction - Use of definition sections to aid statutory construction.

Words and Phrases "made in the course of official questioning" – "confession or admission".

Criminal Law (Detention and Interrogation) Act 1995 (Tas) – ss 8(1), 8(2)(a).

Criminal Code (Tas) – s 402(2).

Kendirjian v Lepore [2017] HCA 13

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ
Date: 29 Mar 2017 Case Number: S170/2016
Legal practitioners – Negligence – Advocates' immunity from suit – Where settlement offer made and rejected on first day of trial – Where rejection of settlement offer followed by judicial decision – Where damages awarded lower than settlement offer – Where solicitor and barrister alleged to have given negligent advice in relation to settlement offer – Whether advice affected conduct of case in court by bearing upon court's determination of case – Whether advocate immune from suit.

High Court – Stare decisis – Whether Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; 331 ALR 1; [2016] HCA 16 should be reopened.

Words and phrases – "advocates' immunity", "affecting the conduct of the case", "finality", "functional connection", "intimately connected", "judicial determination", "possibility of challenge to findings".

Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45

200 CLR 286; 74 ALJR 1298; 174 ALR 626
Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne, Callinan JJ
Date: 31 Aug 2000 Case Number: C16/1999
Workers' compensation (ACT) – Injury - Personal injury arising in the course of employment - Employee had diseased heart valve and suffered a lesion caused by a blood clot which resulted in a stroke - Whether mutually exclusive statutory regimes for "injury" and "disease".

Words and phrases – "injury" - "disease" - "lesion".

Workers' Compensation Act 1951 (ACT) – ss 6(1), 7(1), 9, 9A, 9B.

Workers Compensation Act 1987 (NSW) – s 4.

Kennon v Spry [2008] HCA 56

238 CLR 366; 83 ALJR 145; 251 ALR 257
French CJ, Gummow, Hayne, Heydon, Kiefel JJ
Date: 3 Dec 2008 Case Number: M25/2008 M26/2008
Family law – Courts having jurisdiction in matrimonial causes - Powers - Jurisdiction under s 79(1) of Family Law Act 1975 (Cth) to make orders - "Proceedings with respect to the property of the parties to the marriage or either of them" - Definition of "property" of parties to marriage - Whether right of wife with respect to due administration of trust and discretionary power of husband to appoint whole of trust assets to wife constituted part of the property of the parties to the marriage.

Family law – Courts having jurisdiction in matrimonial causes - Powers - s 85A of Family Law Act 1975 (Cth) - Court's power to make orders respecting property the subject of "ante-nuptial or post-nuptial settlements made in relation to the marriage" - Whether contributions by parties to existing trust are post- nuptial settlements - Whether just and equitable - Interests of third parties.

Family law – Courts having jurisdiction in matrimonial causes - Powers - s 79(1) of Family Law Act 1975 (Cth) - Whether "parties to the marriage or either of them" includes reference to persons who were parties to marriage since dissolved before court makes an order - Power of court to proceed in property settlement "as if" changes to property rights otherwise brought about by anterior divorce had not yet occurred.

Family law – Divorce and other matrimonial causes - Division of assets - Trusts and trustees - Wife one of the class of objects of discretionary trust - Right in equity to due administration of trust - Whether existence of such a right depends on entitlement to any fixed and transmissible beneficial interest in trust fund.

Statutory construction – Family Law Act 1975 (Cth) - Policy regarding contributions to property - Relevance to provisions relating to orders with respect to settlement of property.

Statutory construction – Family Law Act 1975 (Cth) - s 85A - Purposes with respect to settlement - Degree of association ("made in relation to") between settlement of property and marriage.

Words and phrases – "ante-nuptial or post-nuptial settlements" "made in relation to" "parties to the marriage or either of them" "property" "with respect to the property of the parties to the marriage".

Family Law Act 1975 (Cth) – Pt VIII, ss 4, 79, 80, 85A, 106B.

Kentwell v The Queen [2014] HCA 37

88 ALJR 947; 313 ALR 451
French CJ, Hayne, Bell, Gageler, Keane JJ
Date: 9 Oct 2014 Case Number: S113/2014
Criminal law – Appeal – Application to extend time within which to apply for leave to appeal against sentence – Principles to be applied in determining whether extension of time should be granted – Whether applicant required to demonstrate that refusal of application would occasion substantial injustice – Relevance of principle of finality – Relevance of prospect of success should extension be granted – Whether extension of time should be granted.

Criminal law – Appeal – Appeal against sentence – Appellate court's power to re-exercise sentencing discretion – Where error of the kind identified in House v The King (1936) 55 CLR 499 established – Whether appellate court must form positive opinion that some other sentence is warranted in law before intervening.

Words and phrases – "Abdul test", "principle of finality", "substantial injustice", "warranted in law".

Criminal Appeal Act 1912 (NSW) – ss 6(3), 10(1)(b).

Criminal Appeal Rules (NSW) – rr 3A, 3B.

Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18

237 CLR 268; 83 ALJR 680; 254 ALR 637
French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ
Date: 29 Apr 2009 Case Number: S311/2008
Practice and procedure – Appeals - Availability of appeal where trial in District Court of New South Wales conducted with jury - Where trial judge entered "verdict" for defendant following jury's answers to questions - Whether appellant a party "dissatisfied with a Judge's - judgment or order in an action" within meaning of District Court Act 1973 (NSW), s 127(1) - Relevance of absence in Supreme Court Act 1970 (NSW) of express provision conferring power on Court of Appeal in relation to appeals from District Court trial with jury.

Practice and procedure – Appeals - Where right of appeal exists in respect of "a Judge's - judgment or order in an action" - Relevance of cases dealing with phrase "all judgments, decrees, orders, and sentences" in Constitution, s 73.

Words and phrases – "all judgments, decrees, orders, and sentences", "Judge's - judgment or order in an action".

Defamation Act 1974 (NSW) – s 7A.

District Court Act 1973 (NSW) – ss 126, 127(1).

Supreme Court Act 1970 (NSW) – ss 22, 75A.

Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33

78 ALJR 1022; 207 ALR 1
McHugh, Gummow, Hayne, Callinan, Heydon JJ
Date: 23 Jun 2004 Case Number: B52/2003 B53/2003
Planning law – Compensation for alleged diminution in value of land – Appellant owned land in Noosa – Town planning scheme amended by a Development Control Plan ("DCP") – DCP constrained development potential of appellant's land thereby diminishing its market value – Appellant sought compensation from respondent pursuant to Local Government (Planning and Environment) Act 1990 (Q) ("the Act"), s 3. 5(1) – Compensation not payable where land affected by a planning scheme which had the effect of prohibiting or restricting "use of land or erection or use of building or other structure thereon for a particular purpose" – Whether the Act precluded appellant's claim for compensation.

Courts – Jurisdiction – Trial of one of several separate issues – Issue reserved for later determination – Appeal to Court of Appeal with respect to issue decided – Whether Court of Appeal erred in determining issue reserved for later determination.

Local Government (Planning and Environment) Act 1990 (Q) – ss 3. 4, 3. 5.

Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [2001] HCA 8

207 CLR 1; 75 ALJR 518; 177 ALR 460
Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ
Date: 15 Feb 2001 Case Number: S75/2000
Patents – Validity – Revocation – Whether invention sufficiently described – Whether complete specification includes claims – Whether sufficiency determined by reference to skilled addressee.

Words and phrases – "invention" – "complete specification" – "skilled addressee".

Patents Act 1952 (Cth).

Patents Act 1990 (Cth)
– ss 40(2), 40(3), 138.

King v Philcox [2015] HCA 19

French CJ, Kiefel, Gageler, Keane, Nettle JJ
Date: 10 Jun 2015 Case Number: A26/2014
Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger's brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability.

Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath.

Words and phrases – "accident", "duty of care", "incident", "present at the scene of the accident when the accident occurred", "proximity", "reasonably foreseeable".

Civil Liability Act 1936 (SA) – ss 33, 53(1)(a).

King v The Queen [2003] HCA 42

215 CLR 150; 77 ALJR 1477; 199 ALR 568
Gleeson CJ, Gummow, Kirby, Callinan, Heydon JJ
Date: 6 Aug 2003 Case Number: P28/2001
Criminal law – Burglary - Offence of committing an offence in the place of another person when in that place without that other person's consent - Criminal Code (WA), s 401(2) - Onus of proof - Onus on prosecution to prove beyond reasonable doubt absence of consent under s 401(2) - Where offence alleged to be committed was breach of restraining order - Where restraining order prohibited entry onto premises - Statutory provision for defence to offence of breach of restraining order if defendant proves on balance of probabilities existence of consent to be on premises - Whether provision relevant - Whether Court of Appeal erred in dismissing appeal from trial judge's jury direction that onus was on prosecution throughout to negative consent.

Criminal Code (WA) – s 401(2).

Restraining Orders Act 1997 (WA) – ss 61, 62.

King v The Queen [2012] HCA 24

245 CLR 588; 86 ALJR 833; 288 ALR 565
French CJ, Heydon, Crennan, Kiefel, Bell JJ
Date: 20 Jun 2012 Case Number: M129/2011
Criminal law – Appeal against conviction - Jury misdirection - Appellant convicted of two counts of "culpable driving causing death" contrary to s 318(1) of the Crimes Act 1958 (Vic) ("the Act") - Jury had power under the Act to return an alternative verdict of "dangerous driving causing death" contrary to s 319(1) if satisfied that accused not guilty of offence charged under s 318 - Trial judge directed jury that dangerous driving established by proof accused drove in way that "significantly increased the risk of harming others" and that Crown did not have to show driving was "deserving of criminal punishment" - Whether trial judge misdirected jury - Whether R v De Montero (2009) 25 VR 694 should be followed - Whether departure from trial according to law or miscarriage of justice.

Words and phrases – "culpable driving causing death", "deserving of criminal punishment", "dangerous driving causing death".

Crimes Act 1958 (Vic) – ss 318, 319, 422A(1).

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