Issue 79 - May 2017
High Court of Australia Judgment Summary Notes

highcourtintro.jpgThe following summary notes of recent decisions of the High Court of Australia provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

 



Talacko v Bennett [2017] HCA 15

Today the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of Victoria. The High Court held that the Court of Appeal erred in concluding that s 15(2) of the Foreign Judgments Act 1991 (Cth) did not prevent the issue of a certificate under s 15(1) of that Act, even though the judgment in question could not be enforced by execution by reason of s 58(3) of the Bankruptcy Act 1966 (Cth).

A dispute between three siblings concerning certain properties formerly owned by their parents in what is now the Czech Republic led to the commencement of legal proceedings in 1998. Those proceedings were compromised in February 2001 by written terms of settlement requiring one of the siblings, Jan Emil Talacko, to transfer all rights, title and interest in the properties to a nominated person. Mr Talacko reneged on that agreement, and in July 2005 the families of the other two siblings (collectively, "the respondents") reactivated the proceedings and in April 2008 obtained judgment. In November 2009, Mr Talacko was ordered to pay in excess of €10m as equitable compensation.

On 4 July 2012, upon the respondents' request, the Prothonotary of the Supreme Court of Victoria issued a document entitled "Certificate of Finality of Judgment and Orders" in purported reliance on s 15(1) of the Foreign Judgments Act. The respondents intended to file that certificate in proceedings then on foot in the Czech Republic against Mr Talacko and his sons. By this time, Mr Talacko had been made bankrupt by order of the Federal Court of Australia. Upon becoming aware that the certificate had been issued, he began to take steps to have it set aside. He died intestate shortly after, and his widow ("the appellant"), who was appointed representative of Mr Talacko's estate, issued a summons in the Supreme Court of Victoria seeking orders that the certificate (and a subsequently issued replacement certificate) were invalid and should be set aside.

On 4 February 2016 Sloss J declared the certificates to be invalid, relevantly on the basis that s 58(3) of Bankruptcy Act, which prevents creditors from enforcing any remedy against the property of a bankrupt in respect of a provable debt, operated to impose a "stay of enforcement of the judgment" within the meaning of s 15(2) of the Foreign Judgments Act and thus precluded the obtaining of a certificate under that Act. An appeal to the Court of Appeal was allowed on the basis that "stay of enforcement" referred only to a judicially ordered stay (or similar) and did not extend to include the statutory bar imposed by s 58(3) of the Bankruptcy Act.

By special leave, the appellant appealed to the High Court. The Court held that the meaning of the word "stay" is not necessarily confined to stays imposed by courts, but is capable of including any legal impediment to execution upon the judgment. The Court held that the evident purpose of s 15(2) of the Foreign Judgments Act is to prevent an application for a certificate which, if granted, would facilitate the enforcement abroad of a judgment that cannot be enforced in Australia. The judgment debt in question, because of s 58(3) of the Bankruptcy Act, was in that category. The orders of the Court of Appeal were set aside, with the effect that the declaration of the primary judge was reinstated.

Plaintiff M96A/2016 v Commonwealth of Australia   [2017] HCA 16

Today the High Court unanimously held that ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act") validly authorised the detention of unlawful non-citizens who were brought to Australia from a regional processing country for a temporary purpose.

In August 2013, the plaintiffs, a mother and her daughter, arrived in Australia at Christmas Island. As "unauthorised maritime arrivals", they were taken to the Republic of Nauru in February 2014. They claimed to be owed refugee protection. In November 2014, the plaintiffs were brought to Australia for the temporary purpose of medical treatment. They were detained in Darwin and at the Melbourne Immigration Transit Accommodation. In December 2016, they were released after the Minister for Immigration and Border Protection made a residence determination permitting them to reside at a specified place subject to conditions. At all material times, the plaintiffs needed to be in Australia for medical treatment, and had no right to apply for a visa whilst in Australia.

By an application for an order to show cause, the plaintiffs challenged the validity of ss 189 and 196 of the Act insofar as those provisions purported to authorise their detention in Australia. The plaintiffs submitted that their detention was unlawful because it was not necessary for a legitimate, non-punitive purpose, and because the duration of their detention was not reasonably capable of objective determination as it was governed only by the question whether and when they no longer needed to be in Australia. The plaintiffs did not challenge the lawfulness of the Commonwealth's act of bringing them to Australia, or the lawfulness of their eventual removal from Australia.

The defendants demurred to the whole of the plaintiffs' amended statement of claim, submitting that the detention was authorised by the Act. By an order of a single Justice of the High Court, the demurrer was referred to the Full Court.

The Court unanimously allowed the defendants' demurrer on the basis that ss 189 and 196 of the Act validly authorised the plaintiffs' detention whilst they were in Australia. The Court held that the plaintiffs' detention was for a lawful purpose, namely the purpose of removal from Australia. The Court also held that the duration of the plaintiffs' detention was able to be objectively determined at any time and from time to time by reference to various preconditions provided for in the Act, and that the temporal limits of their detention were connected with the purpose of their detention.

Pickering v The Queen  [2017] HCA 17

Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that a miscarriage of justice occurred in the trial of the appellant because the trial judge did not direct the jury on s 31(1)(c) of the Criminal Code (Q) ("the Code").

The appellant was tried before a judge and jury on a count of murder. The Crown alleged that the appellant had stabbed the deceased. The appellant was acquitted of murder but convicted of manslaughter, which was available as an alternative verdict under the Code.

The appellant appealed against his conviction to the Court of Appeal on the sole ground that a miscarriage of justice had occurred because s 31(1)(c) of the Code was not left to the jury. Under s 31(1)(c), a person is not criminally responsible for an act if the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person. But under s 31(2), that protection does not extend, among other things, "to an act … which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element". Grievous bodily harm or an intention to cause such harm is not an element of the offence of manslaughter in Queensland.

It was not in dispute, and the Court of Appeal accepted, that s 31(1)(c) was fairly raised on the evidence at trial unless it was excluded by s 31(2). The Court of Appeal held that s 31(2) applied if, on the evidence, the act for which an accused seeks to avoid criminal responsibility would constitute an offence described in s 31(2), irrespective of whether such an offence had actually been charged. The Court of Appeal held that s 31(1)(c) did not avail the appellant, because his act of stabbing the deceased in the way he did was an act that would constitute the offence of unlawfully doing grievous bodily harm to another, that being an offence described in s 31(2). The Court of Appeal therefore dismissed the appellant's appeal.

By grant of special leave, the appellant appealed to the High Court. The High Court held that s 31(2) of the Code applies to an act only if the accused has been charged in relation to that act with an offence described in s 31(2) and seeks to invoke s 31(1) to deny criminal responsibility on that charge. Therefore, s 31(1) is not available to deny criminal responsibility on a charge of any of the offences described in s 31(2), but may be available in relation to any other offence that is charged or that is available as an alternative verdict. In this case, the protection afforded by s 31(1)(c) was available to the appellant in relation to the offence of manslaughter, which was not an offence described in s 31(2). The appellant's conviction was quashed and a new trial ordered.

Aubrey v The Queen [2017] HCA 18

Today the High Court dismissed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. A majority of the High Court held that causing a complainant to contract the human immunodeficiency virus ("HIV") was capable of constituting infliction of grievous bodily harm contrary to s 35(1)(b) of the Crimes Act 1900 (NSW), as that provision stood in 2004. The Court also held that recklessness, within the now repealed definition of "maliciously" in s 5 of the Crimes Act, could be established by an accused's foresight of the possibility, rather than the probability, of the risk in question materialising.

The appellant engaged in unprotected sexual intercourse with the complainant between January and July 2004 in circumstances where the appellant had been diagnosed as, and therefore knew that he was, HIV positive. The appellant was charged with one count of maliciously causing the complainant to contract a grievous bodily disease with the intent of causing the complainant to contract that grievous bodily disease (Count 1) and, in the alternative, one count of maliciously inflicting grievous bodily harm upon the complainant (Count 2). In March 2012, the appellant moved for an order from the District Court of New South Wales that Count 2 be quashed. Sorby DCJ stayed the proceedings in relation to Count 2 due to uncertainty as to whether causing another person to contract a serious disease constituted the infliction of grievous bodily harm contrary to s 35(1)(b) of the Crimes Act. On appeal by the Crown the Court of Criminal Appeal dissolved this stay, holding that the word "inflicts" should not be given a limited and technical meaning.

At his subsequent trial in the District Court, the appellant conceded that he had known that there was a real possibility that he could infect the complainant by having unprotected sexual intercourse with him. The appellant was acquitted of Count 1 but convicted of Count 2. He unsuccessfully appealed against his conviction to the Court of Criminal Appeal on grounds including that Count 2 disclosed no offence known to law and that the trial judge erred in directing the jury that the element of malice was satisfied.

A majority of the High Court held that the meaning of "inflicts" in s 35 of the Crimes Act does not require the infliction of force productive of immediate physical injury, but rather extends to the communication of disease or infection. The Court also held that recklessness in the context of s 35 does not require an accused to have foresight of the probability that certain consequences will eventuate; foresight of the possibility of such consequences is sufficient. Accordingly, the appeal was dismissed.

Smith v The Queen; The Queen v Afford  [2017] HCA 19

Today the High Court held in relation to two appeals that an inference that an accused intended to import a substance contrary to s 307.1(1) of the Criminal Code (Cth) ("the Code") could be drawn from the accused's knowledge or belief that there was a real or significant chance that he or she was importing the substance.

The first appeal, Smith v The Queen, involved the importation into Australia of illicit drugs, secreted in golf sets, shoes, containers of vitamins and soap. Although admitting that he had some concerns about the items he had been given by an acquaintance in India, Mr Smith claimed that he had no intention to import the illicit drugs concealed in them. Mr Smith was convicted in the District Court of New South Wales on one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. He unsuccessfully appealed against conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales on the ground that the trial judge misdirected the jury with respect to the fault element of intent.

The second appeal, The Queen v Afford, also involved the importation of illicit drugs. The drugs were found in packages stitched inside the lining of luggage given to Mr Afford by an acquaintance in Manila. Mr Afford denied that he intended to import the illicit drugs and submitted that even if he had been suspicious that the suitcase might contain drugs, such a suspicion could not establish an intention to import the substances. Mr Afford was convicted in the County Court of Victoria on one count of importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. He successfully appealed to the Court of Appeal of the Supreme Court of Victoria on the grounds that the verdict was unreasonable and that a substantial miscarriage of justice occurred by reason of a misdirection with respect to the fault element of intent.

By grants of special leave, the appeals came before the High Court and were heard together. The Court held that the process of inferential reasoning posited in Bahri Kural v The Queen (1987) 162 CLR 502; [1987] HCA 16 is applicable to proof of an intention to import a substance contrary to s 307.1(1) of the Code. Consequently, where it is established that an accused perceived there to be a real or significant chance of a substance being present in an object which the accused brought into Australia, it is open to infer on the basis of all the facts and circumstances of the case that the accused intended to import the substance. It is also appropriate for a trial judge so to direct the jury. A majority of the Court held that the trial judge's directions to the jury were sufficient in both appeals. The Court also held that it was open to the jury to be satisfied of Mr Afford's guilt beyond reasonable doubt. Accordingly, the appeal in Smith v The Queen was dismissed and the appeal in The Queen v Afford was allowed.