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Private R v Cowen [2020] HCA 31

Date: 9 Sep 2020 Case Number: S272/2019
Constitutional law (Cth) – Defence – Military discipline – Where plaintiff charged with assault occasioning actual bodily harm – Where plaintiff and complainant members of Australian Defence Force at time of alleged conduct – Where neither plaintiff nor complainant on duty or in uniform – Where plaintiff charged under s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where s 61(3) provided defence member guilty of offence if engaged in conduct outside Jervis Bay Territory and that conduct would constitute Territory offence if it took place in Jervis Bay Territory – Where plaintiff's conduct also constituted offence under ordinary criminal law and civil courts available – Where plaintiff challenged jurisdiction of Defence Force magistrate to hear charge – Whether s 51(vi) of Constitution supported conferral of jurisdiction by Defence Force Discipline Act upon service tribunal to hear charge.

Words and phrases – "Ch III court", "Ch III protections", "concurrent jurisdiction", "conferral of jurisdiction", "courts martial", "defence force discipline", "defence force magistrate", "defence power", "judicial power of the Commonwealth", "maintaining or enforcing service discipline", "military discipline", "military jurisdiction", "naval and military defence", "pre-ordinate jurisdiction of the civil courts", "service connection test", "service offence", "service status test", "service tribunal", "sufficient connection".

Constitution – ss 51(vi), 68, 71, 80, 106, Ch III.

Crimes Act 1900 (ACT) – s 24.

Defence Force Discipline Act 1982 (Cth) – ss 61(3), 63.

Mokhlis v Minister for Home Affairs [2020] HCA 30

Date: 1 Sep 2020 Case Number: S92/2020
Administrative law – Migration – Application for constitutional or other writ – Where plaintiff transferred to Australia from Manus Island for medical treatment – Where plaintiff unlawful non-citizen – Where plaintiff held in immigration detention – Where plaintiff alleges he requested removal from Australia – Where plaintiff seeks declarations, injunctions and writ of habeas corpus in original jurisdiction of the High Court in relation to his detention – Whether remitter to Federal Circuit Court available pursuant to s 44(1) of Judiciary Act 1903 (Cth) – Whether Federal Circuit Court has jurisdiction in relation to relief sought – Where jurisdiction conferred is the same as the original jurisdiction of the High Court "under paragraph 75(v) of the Constitution" – Whether application relates to a "migration decision" for the purposes of s 476(1) of Migration Act 1958 (Cth) – Whether remitter appropriate in these circumstances.

Words and phrases – "ancillary or incidental remedies", "dispute of fact", "instituted or continued", "migration decision".

Constitution – s 75(v).

Federal Circuit Court of Australia Act 1999 (Cth) – s 10(1).

Judiciary Act 1903 (Cth) – s 44(1).

Migration Act 1958 (Cth) – ss 14(1), 189, 196, 197AB, 197AC, 198, 474, 476, 476B, 494AB.

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29

Date: 13 Aug 2020 Case Number: M160/2019 M165/2019
Industrial law (Cth) – Where Fair Work Act 2009 (Cth) contains National Employment Standards ("NES") – Where NES are minimum terms and conditions that apply to all national system employees – Where NES address paid personal/carer's leave – Where s 96(1) of Fair Work Act provides that employees entitled to "10 days" paid personal/carer's leave per year of service – Where s 96(2) provides that paid personal/carer's leave accrues progressively according to employees' ordinary hours of work – Where s 55(4) provides that enterprise agreement may only include terms not detrimental to employee when compared to NES – Where enterprise agreement provides that ordinary hours of work for employees are 36 hours per week – Where enterprise agreement provides that employees working 12-hour shifts entitled to 96 hours paid personal/carer's leave per annum – Whether "day" in s 96(1) of Fair Work Act refers to one-tenth of equivalent of employee's ordinary hours of work in two-week period ("notional day") or portion of 24-hour period otherwise allotted to working ("working day").

Words and phrases – "10 days", "day", "enterprise agreement", "fairness", "income protection", "minimum terms and conditions", "modern award", "National Employment Standards", "notional day", "ordinary hours of work", "paid personal/carer's leave", "working day", "working patterns", "working week".

Fair Work Act 2009 (Cth) – ss 3, 55, 85, 87, 96, 97, 99, 100, 101, 102, 104, 106A, 106E, 147, 186, 193.

Workplace Relations Act 1996 (Cth) – ss 246, 247, 249.

Queensland v Masson [2020] HCA 28

Date: 13 Aug 2020 Case Number: B63/2019
Negligence – Standard of care – Breach – Where woman suffering severe asthma attack treated by ambulance officers including intensive care paramedic – Where intensive care paramedic elected to administer intravenous ("IV") salbutamol rather than IV adrenaline in initial phase of treatment due to woman's high heart rate and high blood pressure – Where Clinical Practice Manual ("CPM") required that ambulance officers "consider" IV adrenaline – Whether decision to administer IV salbutamol contrary to CPM – Whether treatment fell below standard of care expected of ordinary skilled intensive care paramedic – Whether trial judge's finding that intensive care paramedic made clinical judgment to administer adrenaline "contrary to compelling inferences" or "glaringly improbable" – Whether administration of IV salbutamol supported by responsible body of opinion within medical profession.

Words and phrases – "adrenaline", "ambulance officers", "appellate intervention", "breach of duty of care", "case management guidelines", "clinical judgment", "clinical pharmacology", "clinical practice manual", "contrary to compelling inferences", "emergency medicine", "flowchart", "glaringly improbable", "intensive care paramedic", "negligent omission", "operating in the field", "ordinary skilled intensive care paramedic", "range of reasonable responses", "responsible body of opinion within the medical profession", "salbutamol", "severe asthma", "standard of care", "trial judge's advantage".

Berry v CCL Secure Pty Ltd [2020] HCA 27

Date: 5 Aug 2020 Case Number: S315/2019
Damages – Misleading or deceptive conduct – Where first appellant induced to give up agreement by respondent's misleading or deceptive conduct in contravention of s 52 of Trade Practices Act 1974 (Cth) – Where appellants sought damages pursuant to s 82 of Trade Practices Act referable to amounts payable had agreement not been terminated – Whether respondent entitled to contend that but for its misleading or deceptive conduct it would have lawfully terminated agreement – Whether presumption against wrongdoers applied – Whether evidence established real (not negligible) possibility that respondent would have terminated agreement by lawful means.

Words and phrases – "balance of probabilities", "counterfactual lawful termination", "deliberate contravention", "evidential burden", "lawful means alternative", "legal burden", "misleading or deceptive conduct", "notice of termination", "presumption against wrongdoers", "real (not negligible) possibility", "recovery of damages for lost commercial opportunities", "reversal of onus of proof".

Trade Practices Act 1974 (Cth) – ss 52, 82.

Lewis v Australian Capital Territory [2020] HCA 26

Date: 5 Aug 2020 Case Number: C14/2019
Damages – Tort – False imprisonment – Where appellant convicted and sentenced to 12 months' imprisonment served by periodic detention – Where appellant breached obligations of periodic detention – Where appellant liable to arrest without warrant – Where Sentence Administration Board ("Board") required by statute to decide to cancel appellant's periodic detention – Where Board's decision was held invalid for lack of procedural fairness – Where appellant unlawfully imprisoned in full-time detention for 82 days following Board's invalid decision – Where appellant's liberty already qualified and attenuated – Where appellant's imprisonment would otherwise have lawfully occurred – Where appellant awarded nominal damages – Whether award of only nominal damages appropriate – Whether appellant entitled to substantial compensatory damages – Whether vindicatory damages available.

Words and phrases – "aggravated damages", "alternative causes", "but for", "causation", "compensatory damages", "compensatory principle", "counterfactual", "damages", "exemplary damages", "false imprisonment", "lawful authority", "liability", "loss", "material contribution", "nominal damages", "periodic detention", "relief", "substantial damages", "substitutionary remedy", "user principle", "vindication", "vindicatory damages", "wrongful act".

Crimes (Sentence Administration) Act 2005 (ACT) – Ch 5.

Singh v The Queen [2020] HCA 25

Date: 5 Aug 2020 Case Number: D16/2019
Appeals – Criminal appeal – Death of appellant – Where appellant died after appeal heard – Where appellant sought order quashing conviction and ordering retrial – Whether possible to make order sought – Whether other order appropriate.

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.

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