High Court of Australia Judgment Summary Notes

Maloney v The Queen [2013] HCA 28

Today the High Court unanimously dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with s 10 of the Racial Discrimination Act 1975 (Cth).

The appellant, an Indigenous resident of Palm Island in Queensland, was convicted in the Magistrates Court in Townsville of the offence of being in possession of more than a prescribed quantity of liquor in a restricted area on Palm Island contrary to s 168B of the Liquor Act 1992 (Q).  Schedule 1R of the Liquor Regulation, made under the Act, has the effect of restricting the nature and quantity of liquor which people may have in their possession in public areas on Palm Island.  The Palm Island community is composed almost entirely of Indigenous people.

The appellant’s appeal against her conviction to the District Court of Queensland was dismissed.  Her application for leave to appeal to the Court of Appeal was also dismissed.  By special leave, she appealed to the High Court.

By force of s 10 of the Racial Discrimination Act, where a law has the effect that persons of a particular race enjoy a right to a more limited extent than persons of another race, the persons adversely affected shall enjoy that right to the same extent as the persons of that other race.  However s 10 does not apply if the law is a “special measure” taken for the sole purpose of securing the adequate advancement of a racial group requiring such protection as may be necessary to ensure that group’s equal enjoyment or exercise of human rights and fundamental freedoms.

In the High Court, the appellant argued that s 10 of the Racial Discrimination Act applied to the provisions of Sched 1R of the Liquor Regulation because those provisions affected her enjoyment of three rights:  the right to equal treatment before courts and tribunals; the right to own property; and the right to access places and services intended for use by the general public.  She also argued that Sched 1R was not a “special measure” within the meaning of s 8 of the Racial Discrimination Act.

The High Court found, by majority, that the impugned provisions were inconsistent with s 10 of the Racial Discrimination Act.  However, the Court was unanimously of the view that s 10 did not apply because the provisions constituted a “special measure” designed to protect the residents of Palm Island from the effects of prevalent alcohol abuse and associated violence.  Accordingly, the Court held that Sched 1R was valid and dismissed the appeal.

X7 v Australian Crime Commission & Anor [2013] HCA 29

Today a majority of the High Court held that the Australian Crime Commission Act 2002 (Cth) (“the Act”) did not authorise an examiner, appointed under the Act, to require a person charged with an indictable Commonwealth offence to answer questions before his or her trial about the subject matter of the offence.

On 23 November 2010, the plaintiff was arrested and subsequently charged with three indictable Commonwealth offences in relation to alleged conspiracies to import and traffic in a commercial quantity of a controlled drug, and to deal with money that was the proceeds of crime.  Whilst in custody, the plaintiff was served with a summons, issued pursuant to the Act, which required him to answer questions before an examiner for the purposes of a special investigation by the Australian Crime Commission (“the ACC”).  At the examination, the plaintiff was asked, and answered, questions about the subject matter of the offences with which he had been charged.  Following an adjournment of the examination, the plaintiff refused to answer further questions about that subject matter.  The plaintiff was told that he would be charged with the offence of failing to answer a question that he was required, by the examiner, to answer.

The plaintiff applied to the High Court for an injunction to prevent the ACC, by its officers and examiners, from examining him in relation to the subject matter of the charged offences.  The plaintiff sought a declaration that the examination provisions of the Act were beyond the power of the Commonwealth Parliament to the extent that they permitted the compulsory examination of a person charged with an indictable offence about the subject matter of that offence.  He also sought a declaration that any such examination contravened Ch III of the Constitution because it interfered with his right to a fair trial.

A majority of the High Court held that the examination provisions of the Act did not permit an examiner of the ACC to require a person charged with, but not yet tried for, an indictable Commonwealth offence to answer questions about the subject matter of the charged offence.  The Court held that if the examination provisions of the Act were interpreted to permit compulsory examination in such circumstances, the provisions would effect a fundamental alteration to the accusatorial and adversarial process of criminal justice.  Such an alteration could only be effected by express statutory language or by necessary implication.  The Court held that examination provisions of the Act did not, expressly or impliedly, effect such an alteration.  Having so held, the majority of the Court did not need to consider the plaintiff’s constitutional arguments.

Director of Public Prosecutions (Cth) v JM [2013] HCA 30

Today the High Court unanimously held that buying or selling shares on the securities exchange operated by ASX Limited (“the ASX”), for the sole or dominant purpose of creating or maintaining a particular price, created or maintained an “artificial price” for those shares for the purposes of the offence of market manipulation under s 1041A of the Corporations Act 2001 (Cth) (“the Act”).  The High Court allowed an appeal by the Commonwealth Director of Public Prosecutions (“CDPP”) regarding answers given by the Court of Appeal of the Supreme Court of Victoria to questions of law that arose before JM’s trial on charges of 39 counts of market manipulation contrary to s 1041A of the Act and two counts of conspiring with others to commit market manipulation in relation to the trading of shares on the ASX.  JM has pleaded not guilty to all charges. 

Before a jury was empanelled, Weinberg JA, sitting in the Trial Division of the Supreme Court of Victoria, stated a case under s 302 of the Criminal Procedure Act 2009 (Vic) and reserved three questions of law for the Court of Appeal.  The questions asked whether the price of a share on the ASX, which had been created or maintained by a transaction carried out for the sole or dominant purpose of creating or maintaining a particular price for the share, was an “artificial price” for the purposes of s 1041A of the Act.  The case stated set out the assertions of fact which the CDPP sought to establish at trial.

The Court of Appeal held, by majority, that the original questions formulated by Weinberg JA were inappropriate to answer because they were answerable only by reference to disputed facts.  The Court of Appeal remitted the case stated to Weinberg JA for amendment of the first question reserved, to ask whether the expression “artificial price” in s 1041A of the Act was used in the sense of a term having a legal signification as opposed to its sense in ordinary English or some non legal technical sense and, if so, what was its legal signification.  The Court of Appeal found that the expression “artificial price” in s 1041A had the legal signification of being market manipulation by conduct of the kind typified by American jurisprudential conceptions of “cornering” and “squeezing”.

The CDPP sought special leave to appeal to the High Court against the orders made by the Court of Appeal, alleging that the answer given to the reformulated question was founded on a misconstruction of s 1041A of the Act.  JM sought special leave to cross-appeal to argue that both the original and reformulated questions were hypothetical questions and that to answer the questions was beyond the judicial power of the Commonwealth.

The High Court granted both applications for special leave.  The Court allowed the appeal and allowed the cross-appeal in part.  The Court held that the original question should have been answered by the Court of Appeal, but that the reformulated question was not a question which arose before JM’s trial.  The construction of s 1041A of the Act adopted by the Court of Appeal was held to be incorrect.  The High Court held the price of a share on the ASX created or maintained by a transaction on the ASX that was carried out for the sole or dominant purpose of creating or maintaining a particular price was an “artificial price” for the purposes of s 1041A.  No question concerning the judicial power of the Commonwealth arose. 

Elias v The Queen; Issa v The Queen [2013] HCA 31

Today the High Court unanimously dismissed an appeal by two men from a decision of the Court of Appeal of the Supreme Court of Victoria which had rejected their appeals against the severity of the sentences imposed for their respective convictions for attempting to pervert the course of justice. 

The appellants each pleaded guilty before the Supreme Court of Victoria to offences which included a count of attempting to pervert the course of justice, which, under Victorian law, carries a maximum penalty of imprisonment for 25 years.  The appellants were each sentenced to eight years’ imprisonment for that offence.  The conduct constituting the attempted perversion of justice consisted of acts of assistance given to a fugitive, Antonios (Tony) Mokbel, who had been convicted and sentenced for a Commonwealth offence. 

The appellants appealed to the Court of Appeal against the severity of their sentences.  They submitted that the sentencing judge was wrong not to take into account, as a factor in mitigation of their sentences, that there was a Commonwealth offence of attempting to pervert the course of justice which carried a lesser maximum penalty of five years’ imprisonment.  The Court of Appeal rejected that argument on the basis that the Sentencing Act 1991 (Vic) does not permit a sentencing judge to have regard to some other maximum penalty prescribed for a Commonwealth offence when sentencing for a Victorian offence.

The appellants sought, and were granted, special leave to appeal to the High Court.  The High Court unanimously dismissed their appeals.  The Court said that there is no common law principle requiring a sentencing judge to take into account as a matter of mitigation that a different offence, for which it was open to prosecute a person, has a lesser maximum penalty.  The Court said that the decision of the Court of Appeal of the Supreme Court of Victoria in R v Liang (1995) 124 FLR 350, which held that a sentencing judge must take into account in mitigation of sentence that there is a less punitive offence upon which the prosecution could have proceeded and which is as appropriate to the facts as the charged offence, should not be followed.

Nguyen v The Queen [2013] HCA 32

Today the High Court unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Victoria.  Dang Khoa Nguyen (“the appellant”) had been convicted in the Supreme Court of Victoria on one count of murder and one count of attempted murder.  The Court of Appeal upheld the convictions.  The High Court quashed the convictions and ordered a new trial on both counts.

On 8 November 2004, the appellant, in company with Dang Quang Nguyen (“Quang”) and Bill Ho, went to a flat in Carlton to collect a drug debt.  There were seven people in the flat at the time.  Bill Ho shot two of the occupants, killing one of them and wounding the other.  The appellant and Quang were both found guilty of murder and attempted murder for their complicity in Bill Ho’s crimes.

In 2009, the appellant and Quang appealed against their convictions to the Court of Appeal.  Quang’s convictions were quashed and a verdict of acquittal was entered on the basis that his convictions could not be supported by the evidence and were, therefore, unsafe or unsatisfactory.  The appellant’s appeal was dismissed.

In 2010, the prosecution appealed to the High Court against the judgment of the Court of Appeal relating to Quang.  Quang cross-appealed in relation to the sufficiency of the directions given by the trial judge to the jury.  On 3 November 2010, the High Court held that the jury had been misdirected because the trial judge’s directions did not instruct the jury that manslaughter was available as an alternative verdict with respect to the murder charge if Bill Ho was found to be guilty of murder.  The High Court ordered that Quang’s convictions be quashed and a new trial had on both charges. 

After the decision in Quang’s case, the appellant appealed to the High Court substantially on the same grounds as those successfully raised by Quang.  The Court accepted that there was no material difference between the position of the appellant and Quang.  As in Quang’s case, the trial judge erred by failing to direct the jury that it was open to them to conclude that the appellant was guilty of manslaughter, even if they were satisfied that Bill Ho was guilty of murder.  The misdirection constituted a substantial miscarriage of justice which required the convictions to be quashed and a new trial had.