FEATURE ARTICLE -
Case Notes, Issue 60: March 2013
Yates v The Queen [2013] HCA 8
Today the High Court allowed an appeal by a man with an intellectual disability from a decision of the Court of Criminal Appeal of the Supreme Court of Western Australia which upheld an order that he be detained in prison indefinitely.
In March 1987, the applicant was convicted of one count of aggravated sexual assault and one count of deprivation of liberty. He was sentenced to a maximum of seven years’ imprisonment for those offences. The sentencing judge made an order under s 662 of the Criminal Code (WA) directing that on the expiration of the term of his imprisonment the applicant should be detained “during the Governor’s pleasure in a prison”. The applicant’s term of imprisonment expired in June 1993. He has remained in prison since that date pursuant to the s 662 order and has been in prison for six years longer than the maximum sentence that could have been imposed for the offence of aggravated sexual assault.
In July 1987, a majority of the Court of Criminal Appeal dismissed an appeal from the making of the s 662 order, but reduced the maximum sentence to six years and three months to account for a period of pre-sentence custody.
On 20 June 2012, the applicant sought special leave to appeal to the High Court from the Court of Criminal Appeal’s decision. The High Court unanimously allowed the appeal. The Court held that the evidence before the sentencing judge was not capable of supporting the making of an order for the applicant’s indefinite detention and that the interests of justice required that leave to appeal be granted out of time.
Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7
Today the High Court unanimously upheld the validity of provisions of the Criminal Organisation Act 2009 (Q) (“the Act”) which relate to “criminal intelligence” relied upon in support of applications to the Supreme Court of Queensland to have an organisation declared a “criminal organisation”. The High Court held that the provisions were not inconsistent with the institutional integrity of the Supreme Court.
On 1 June 2012, the Assistant Commissioner of the Queensland Police Service filed an application in the Supreme Court seeking a declaration that the Finks Motor Cycle Club, Gold Coast Chapter, and Pompano Pty Ltd, said to be a part of that Chapter (together “the respondents”), constituted a criminal organisation under s 10 of the Act (“the substantive application”). In support of the substantive application, which is still pending, information which the Supreme Court had previously declared to be criminal intelligence is relied upon. Information which is criminal intelligence relates to actual or suspected criminal activity, the disclosure of which could reasonably be expected to “prejudice a criminal investigation”, “enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement”, or “endanger a person’s life or physical safety”.
As required by ss 66 and 70 of the Act, the Supreme Court heard the application to declare that particular information was criminal intelligence without notice to the respondents and in a “special closed hearing”. Because the Supreme Court made the declaration sought, it will be required by s 78(1) of the Act to order any part of the hearing of the substantive application in which the criminal intelligence is to be considered a closed hearing. The effect is that the criminal intelligence will be kept secret from the respondents.
In the High Court, the respondents contended that those provisions of the Act (among others) were invalid because they denied procedural fairness to a respondent to an application to have an organisation declared a criminal organisation. The parties agreed to submit a special case to the High Court asking whether such provisions were invalid for impairing the institutional integrity of the Supreme Court, thereby infringing Ch III of the Constitution.
The High Court upheld the validity of the provisions. The Court held that while the provisions may depart from the usual incidents of procedure and judicial process, the Supreme Court nonetheless retains its capacity to act fairly and impartially. The Court held that the provisions do not impair the essential characteristics of the Supreme Court, or its continued institutional integrity.
TCL Air Conditioner (Zhongshan) Co Ltd v The Judges of the Federal Court of Australia [2013] HCA 5
Today the High Court unanimously dismissed an application by TCL Air Conditioner (Zhongshan) Co Ltd (“TCL”) for constitutional writs directed to the judges of the Federal Court of Australia.
The High Court held that s 16(1) of the International Arbitration Act 1974 (Cth), which gives “the force of law in Australia” to the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”), is not invalid.
TCL entered into a written distribution agreement with Castel Electronics Pty Ltd (“Castel”). The agreement provided for the submission of disputes to arbitration. Following an arbitration, awards were made which required TCL to pay Castel a sum of money (“the awards”). In default of payment, Castel applied to the Federal Court for enforcement of the awards in accordance with Art 35 of the Model Law.
In separate proceedings instituted in the High Court, TCL applied for an order restraining the judges of the Federal Court from enforcing the awards, and for an order quashing decisions of that Court in relation to the awards. TCL submitted that the Model Law provided for the exercise of the judicial power of the Commonwealth in a manner contrary to Ch III of the Constitution. Under the Model Law, the Federal Court has no power to refuse to enforce an arbitral award on the ground that an error of law is apparent on the face of the award. TCL argued that consequently, the jurisdiction conferred on the Federal Court under the Act requires that Court to act in a manner which substantially impairs its institutional integrity. Further, the Model Law was said to vest the judicial power of the Commonwealth in arbitral tribunals.
The High Court unanimously dismissed the application.
Huynh v The Queen [2013] HCA 6
Today the High Court unanimously dismissed three appeals from a decision of the Full Court of the Supreme Court of South Australia (“the Full Court”) which upheld the appellants’ convictions for murder.
The appellants were convicted of murder in the Supreme Court of South Australia following a fight at a party in suburban Adelaide in which a young man was stabbed. The appellants were part of a group that had descended on an 18th birthday party after a dispute between one of the appellants and others attending the party. The appellants were convicted on the basis that they were participants in a joint criminal enterprise to kill or to cause really serious bodily harm to a person or persons at the party using a knife or similar bladed weapon.
The appellants appealed against their convictions to the Full Court, arguing that their trials had miscarried because the trial judge had not told the jury that it was necessary for the prosecution to prove that each appellant had participated in the joint criminal enterprise. The appellants also argued that their trial had miscarried because the trial judge had not addressed each appellant’s case separately in his summing-up to the jury. The Full Court dismissed the appeal on both grounds.
Huynh was granted special leave to appeal to the High Court, and the special leave applications of Duong and Sem were referred to an enlarged bench of the High Court to be heard at the same time as Huynh’s case.
The High Court granted Duong and Sem leave to appeal, but unanimously dismissed all three appeals. The High Court held that, although participation in furtherance of an agreement to kill or to cause really serious bodily harm to a person was an element that had to be proved against each appellant, the trial judge had not erred because the appellants’ participation was not a live issue at their trial. The appellants did not dispute that they were present when the crime was committed.
Their presence pursuant to the agreement constituted participation in the joint criminal enterprise.
The High Court held that the trial judge had not erred in failing to address each appellant’s case separately in his summing-up, because almost all the evidence in the trial was admissible against each appellant and his Honour had adequately identified the evidence relevant to the determination of the issues in each case and the criticisms each appellant had made of that evidence.
