High Court of Australia Judgment Summary Notes

The Queen v Keenan [2009] HCA 1 (2 February 2009)

Even if a man did not anticipate that his friend would use a gun on someone who owed him money, he was still guilty of grievous bodily harm as it was open to the jury to find that the shooting was the kind of offence that was a probable consequence of a plan to cause the victim harm, the High Court of Australia has held.

Francis Keenan, Stephen Booth and Dion Spizzirri were charged with attempted murder of Darren Coffey and alternatively with doing grievous bodily harm with intent. The jury found Mr Keenan not guilty of attempted murder but guilty of causing grievous bodily harm. The three, along with Jeramie Jupp, had planned to assault Mr Coffey after he failed to pass on $7000 collected for Mr Keenan. Mr Keenan left threatening messages for Mr Coffey on the mobile phone of his niece, Vonda Muir, who was Mr Coffey’s girlfriend. Mr Coffey was located by Mr Jupp at Hope Island in south-eastern Queensland where he and Ms Muir were living in a van. The four men went to the site in two cars. Mr Keenan’s passenger was Mr Booth who was carrying a small baseball bat. During the confrontation, Mr Spizzirri allegedly produced a sawn-off gun and shot Mr Coffey several times in the spine. Mr Coffey was left a paraplegic. There was no evidence that using a gun had been discussed beforehand. Mr Booth was found not guilty. The jury could not reach a verdict on Mr Spizzirri who was retried and found not guilty.

The case against Mr Keenan did not depend upon conviction of a principal offender. Section 8 of the Queensland Criminal Code provides that when two or more people form a common intention to carry out an unlawful purpose together, and in doing so another offence is committed of such a nature that it was a probable consequence of the prosecution of such purpose, then each of them is deemed to have committed the offence. The trial judge, Chief Justice Paul de Jersey, instructed the jury that they had to be satisfied that there was a common intention to prosecute an unlawful plan, that the offence of attempted murder or alternatively intentional grievous bodily harm was committed in carrying out that purpose, and that any offence committed was of such a nature that its commission was a probable consequence of the prosecution of that purpose.

The Court of Appeal acquitted Mr Keenan and held that a jury, properly instructed, could not have excluded an inference that Mr Spizzirri was acting independently of the common planned intention with respect to the attack on Mr Coffey. It held that misdirections by Chief Justice de Jersey resulted in a miscarriage of justice. The Crown appealed to the High Court.

The Court unanimously allowed the appeal, although one Justice did so only to substitute an order for a retrial. Four Justices ordered that Mr Keenan’s conviction should be restored. They agreed that if a miscarriage of justice had resulted from misdirection the Court of Appeal should have ordered a retrial. However the majority held that Chief Justice de Jersey did not misdirect the jury so that no miscarriage of justice occurred. It held that section 8 of the Code required the jury to consider what the common purpose was, then whether the shooting was an offence of such a nature that its commission was a probable consequence of carrying out that purpose. They concluded that an inference that the unlawful purpose was to inflict serious physical harm on Mr Coffey was open to the jury. That purpose was achieved and whether it had been achieved with a gun or a baseball bat did not matter in the circumstances of the case. The question was not whether the actual shooting was a probable consequence but whether the act of shooting was an offence of such a nature that its commission was a probable consequence. The Court remitted the case to the Court of Appeal to determine Mr Keenan’s application for leave to appeal against his sentence.

Wurridjal v The Commonwealth of Australia [2009] HCA 2 (2 February 2009) Proper provision had been made for compensation of Aboriginal organisations and people in the Northern Territory where property rights had been affected by the Commonwealth’s NT intervention laws, the High Court of Australia has held.

In August 2007, the federal government introduced a package of legislation designed to support an emergency response to deal with sexual abuse of Aboriginal children in the NT, along with alcohol and drug abuse, pornography and gambling. The response included improving living conditions and reducing overcrowding by building houses and providing other facilities and infrastructure. To do this the government took control of certain townships for a limited period. Under the Northern Territory National Emergency Response Act (NER Act), five-year leases were created over Aboriginal land, communities and town camps. Any pre-existing right, title or interest in land was preserved and provision made for compensation to be paid where required by section 51(xxxi) of the Constitution. Section 51(xxxi) gives Parliament power to make laws for the acquisition of property on just terms from any State or person for any purpose in respect of which Parliament has power to make laws.

The Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act (FaCSIA Act) amended the Commonwealth Aboriginal Land Rights (Northern Territory) Act (Land Rights Act) to provide that permits for entry onto Aboriginal land would no longer be required for townships and roads. The FaCSIA Act also provided for reasonable compensation if action under the amendments to the Land Rights Act would result in an acquisition of property to which section 51(xxxi) applied.

Reggie Wurridjal and Joy Garlbin are senior members of the Dhukurrdji clan, the traditional Aboriginal owners of Maningrida land. The land, measuring 10.456 square kilometres, includes a township, four sacred sites, an outstation, a sand quarry, a billabong and a ceremonial site. It is part of a total land grant of almost 90,000 square kilometres held by the Arnhem Land Aboriginal Land Trust under the Land Rights Act as an estate in fee simple. A five-year lease on Maningrida land was granted to the Commonwealth under the NER Act. Mr Wurridjal and Ms Garlbin claimed that the grant of the lease constituted an acquisition of Land Trust property that was not on just terms within the meaning of section 51(xxxi) of the Constitution. They also alleged that their entitlement under section 71 of the Land Rights Act to enter, use or occupy Maningrida land in accordance with Aboriginal tradition constituted property that had been acquired by the Commonwealth other than on just terms. They argued that their property had been acquired because their section 71 entitlement could be terminated at any time by the Minister under the NER Act and/or was effectively suspended by the grant of the lease. No party submitted that the Commonwealth had acquired any native title rights held by the Dhukurrdji clan

Mr Wurridjal, Ms Garlbin and the Bawinanga Aboriginal Corporation began proceedings in the original jurisdiction of the High Court in October 2007 to challenge the validity of certain provisions of the NER and FaCSIA Acts. In March 2008, the Commonwealth demurred to their claim on the ground that it did not show any cause of action to which the Court could give effect. The Commonwealth alleged that the Acts were not subject to the just terms requirement in section 51(xxxi) of the Constitution because they were supported by section 122 of the Constitution, which gives Parliament the power to make laws for the governing of any territory; that if they were subject to it they provided for compensation amounting to just terms; and that any property affected was not property within the meaning of section 51(xxxi) or was not property capable of being acquired.

The High Court, by a 6-1 majority, held that the demurrer should be allowed. A majority held that the creation of the statutory lease on the Maningrida land constituted an acquisition of property from the Land Trust but the acquisition was on just terms due to the compensation provisions in the NER Act. There was no acquisition of Mr Wurridjal and Ms Garlbin’s rights under section 71 of the Land Rights Act because those rights had been preserved throughout the intervention and could not be extinguished by the Commonwealth pursuant to the NER Act. Their interests in their sacred sites also remained protected under section 69 of the Land Rights Act, which makes intruding on a sacred site a criminal offence. To the extent that abolition of the permit system had resulted in an acquisition of property, just terms were afforded by the compensation provisions of the FaCSIA Act.

A majority of the Justices overruled a 1969 decision of the High Court, Teori Tau v The Commonwealth, which held that the just terms requirement in section 51(xxxi) did not apply to laws made by the Commonwealth for the governing of the territories. Therefore, section 122 of the Constitution is subject to the just terms requirement in section 51(xxxi).

Wong v Commonwealth of Australia; Selim v Lele, Tan and Rivett constituting the Professional Services Review Committee No 309 [2009] HCA 3 (2 February 2009)

The Medicare system does not amount to civil conscription of doctors in contravention of the Constitution, the High Court of Australia has held.

Dr Wong and Dr Selim have each been found by a Professional Services Review (PSR) Committee, set up under the Commonwealth Health Insurance Act, to have engaged in conduct amounting to “inappropriate practice” due to seeing very high numbers of patients in a given time. In April 2006, Dr Wong commenced an action in the High Court, seeking declarations that sections 10, 20 and 20A and Part VAA of the Act were invalid because they amounted to civil conscription, within the meaning of section 51(xxiiiA) of the Constitution. Section 51(xxiiiA), added to the Constitution after a referendum in 1946, gives Parliament the power to make laws with respect to “provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances”. Sections 10, 20 and 20A deal respectively with entitlement to a Medicare benefit, payment to persons incurring medical expenses, and assignment of a Medicare benefit to the relevant medical practitioner. Part VAA of the Act sets up the PSR Scheme and contains the provisions relating to inappropriate practice. The doctors said all their professional activities were controlled by the Commonwealth and that Part VAA dealt so extensively with doctors’ conduct as to cover everything a doctor might do.

A Justice of the High Court remitted Dr Wong’s action to the Federal Court of Australia in October 2006. In that Court, Dr Wong’s action was heard together with an appeal by Dr Selim from a decision of Justice Margaret Stone denying Dr Selim’s application for judicial review. The Full Court’s decision was adverse to both doctors. It held that the impugned sections did not compel a practitioner to render any professional service to any person. Rather, they compelled doctors to conduct their practices with the care and skill that would be acceptable to the general body of medical practitioners. Dr Wong and Dr Selim both appealed to the High Court.

The High Court, by a 6-1 majority, dismissed both appeals. It held that sections 10, 20 and 20A of the Act do not amount to a form of civil conscription, because doctors do not compulsorily provide service for the Commonwealth, or for other bodies on the Commonwealth’s behalf. The Act does not force doctors to treat or not treat particular patients. Doctors are free to choose where and when they practise. The PSR scheme requires doctors to conform to certain norms, which are calculated to ensure that doctors perform professionally. Aspects of the Medicare scheme, such as denial of payment where there is a failure to record details such as item numbers, are conditions of participation in the scheme but these aspects do not amount to a practical compulsion to perform a professional service.

K-Generation Pty Limited v Liquor Licensing Court [2009] HCA 4 (2 February 2009)

The requirement for South Australian courts to maintain the confidentiality of criminal intelligence about an applicant for a liquor licence did not diminish their integrity as impartial and independent courts, the High Court of Australia has held.

In October 2005, K-Generation applied to the SA Liquor and Gambling Commissioner for an entertainment venue licence. The director, Genargi Krasnov, wanted to set up a karaoke club called Sky Lounge KTV in premises on King William Street, Adelaide. The Police Commissioner intervened in July 2006 to introduce evidence and make representations to Liquor and Gambling Commissioner Bill Pryor, particularly on the issue of whether Mr Krasnov and his partner Adeline Tay were fit and proper persons to hold the licence. When Commissioner Pryor heard the application, the police submitted information classified by the Police Commissioner as “criminal intelligence”, pursuant to section 28A of the Liquor Licensing Act. The information was not disclosed to K-Generation. In January 2007, Commissioner Pryor, acting upon that information, refused the application on the ground that the grant of a licence would be contrary to the public interest.

The SA Licensing Court affirmed his decision. K-Generation and Mr Krasnov instituted proceedings in the SA Supreme Court, seeking a declaration that section 28A was invalid for being incompatible with the exercise by the Licensing Court of the judicial power of the Commonwealth. They sought a declaration that the Licensing Court, in affirming Commissioner Pryor’s decision, had failed to observe the requirements of procedural fairness. They also applied for judicial review of the Licensing Court’s decision. The proceedings were referred to the Full Court of the Supreme Court, which by majority refused the application for the declarations and dismissed the application for judicial review.

K-Generation and Mr Krasnov appealed to the High Court on the ground that the Full Court erred in finding section 28A to be valid, notwithstanding that it required the Licensing Court to hear and determine the review without disclosing the intelligence relied on by Commissioner Pryor in refusing the licence application. K-Generation and Mr Krasnov contended that section 28A deprived the Licensing Court of the reality and appearance of independence and impartiality required of a court exercising the judicial power of the Commonwealth. Their particular concern was with section 28A(5) which directs the Liquor and Gambling Commissioner, the Licensing Court and the Supreme Court to take steps to maintain the confidentiality of information classified as criminal intelligence. These steps may include receiving evidence and hearing argument about the information in private without the parties or their lawyers.

The Court unanimously dismissed the appeal. It held that section 28A did not confer upon the Licensing Court or the Supreme Court functions incompatible with their integrity as courts of the States or with their constitutional role as courts exercising federal jurisdiction. Section 28A left to the courts decisions on whether facts existed to warrant classification of information as “criminal intelligence”, what if any weight should be placed on it, and what steps to take to preserve the confidentiality of that material. Section 28A(5) did not subject the courts to the direction of the executive or an administrative authority. Therefore it did not deny to the courts the constitutional character of independent and impartial tribunals.

PNJ v The Queen [2009] HCA 6 (10 February 2009)

PNJ was convicted of wounding with intent to cause grievous bodily harm.  The charge arose out of a stabbing incident. The victim of his attack died nearly two years after being stabbed and PNJ was then charged with his murder. The High Court of Australia held that the bringing of that charge was not unjustifiably oppressive to PNJ, nor would it bring the administration of justice into disrepute.

In September 2002 PNJ stabbed H in the temple with a knife. He was arrested and taken into custody. At trial he was acquitted of attempted murder but convicted of wounding with intent to cause grievous bodily harm. He was sentenced to seven years’ imprisonment, with a non-parole period fixed at four years. The victim died in 2004, allegedly as a result of the injuries received in the attack in 2002. In January 2006 PNJ was charged with his murder.   In 2007 section 32 of the Criminal Law (Sentencing) Act 1988 (SA) was amended to fix a mandatory minimum non-parole period of 20 years for a conviction for the offence of murder. The amendments apply whether the relevant offence was committed before or after their commencement. The amendments also provided that a court could fix a non-parole period shorter than the mandated period only if satisfied that special reasons existed for doing so. Under section 32A(3)(b) one set of reasons which would constitute “special reasons” would be “if the offender pleaded guilty to the charge of the offence — that fact and the circumstances surrounding the plea”.

PNJ’s trial for murder has not yet commenced. Having unsuccessfully applied for a permanent stay on the prosecution in September 2006, he made a second application for a permanent stay of the prosecution in February 2008. He alleged the amendments would expose him to being punished twice for the same conduct. This was because, if he were to be convicted and sentenced for murder, he would have largely served the full seven-year term of imprisonment for the original conviction, and any non-parole period for a murder conviction could not be fixed to begin at the time he began serving the sentence for the original conviction. Alternatively PNJ argued he would be denied a free choice about his plea because the only way he could avoid a 20-year non-parole period if he were to be convicted of murder would be if he were to plead guilty prior to the trial. In that event he could argue for a shorter non-parole period under section 32A(3)(b) of the Sentencing Act. PNJ’s application for a permanent stay of the prosecution was denied at first instance. The Full Court of the Supreme Court of South Australia dismissed his appeal.  He applied to the High Court for special leave to appeal against the Supreme Court’s decision. His special leave application was referred to the Full Court of the High Court by a panel of three Justices.

The Court unanimously refused special leave. It held that if PNJ were to be convicted of murder then, under section 30 of the Sentencing Act, the sentencing judge would be empowered to fix the commencement date of the head sentence and the non-parole period (whether that was the mandated 20 years or a lesser period because special reasons existed to reduce the non-parole period) as the date on which PNJ was first taken into custody. On that basis there would be no abuse of process in prosecuting PNJ for the murder of H. The prosecution would not bring the administration of justice into disrepute, nor would it be unjustifiably oppressive to PNJ.

Parker v Comptroller-General of Customs [2009] HCA 7 (12 February 2009)

A man charged with evading duty on imported Scotch whisky was not denied procedural fairness by the New South Wales Court of Appeal when he was not invited to make submissions about an earlier decision of a lower court, the High Court of Australia has held.

An Australian Customs Service investigation between 1987 and 1990 into suspected contraventions of the Customs Act and Spirits Act found that some importers were mixing local spirits made from grain and/or molasses into imported brandy before bottling. It was an offence to describe as brandy any spirit not wholly distilled from wine produced from grapes. Customs formed the view that two companies controlled by Stephen Parker — Lawpark Pty Ltd which imported and distributed alcoholic spirits and Breven Pty Ltd which ran a warehouse for imported spirits — and a third company, Kingswood Distillery Pty Ltd, were involved in such a scheme. In March 1990 Customs, relying upon notices to produce issued under section 214 of the Customs Act, sought books and documents covering the previous five years relating to a particular bottle of Cheval Napoleon Old French Brandy and all other imports. When this requirement was apparently not met, they carried out a search and seizure at Lawpark’s premises at Wetherill Park in Sydney using warrants issued under section 214 (which has since been repealed). Mr Parker was ultimately charged with other offences uncovered during the investigation into adulterated brandy.   In 1992, the Comptroller-General of Customs (now known as the Chief Executive Officer of Customs) began proceedings in the New South Wales Supreme Court against Mr Parker, Lawpark, Breven, and another individual, Gary Thomas Lawler. Mr Parker was charged with the removal, without Customs’ authority, of almost 93,000 litres of Scotch whisky from the Breven warehouse and 13 counts of evasion of duty on the whisky totalling more than $3 million. Proceedings against him finally came on for hearing in April 2005. Proceedings against the other defendants had already been concluded. Mr Parker challenged the admissibility of the documents seized from Lawpark’s premises and contended that evidence had been obtained improperly or in contravention of an Australian law. He said the search and seizure power had not been enlivened because the notice to produce was invalid and that the documents seized did not relate to the bottle of brandy identified in the notice to produce. Under section 138 of the NSW Evidence Act, such evidence obtained improperly or in contravention of the law cannot be admitted unless the desirability of admitting it outweighs the undesirability of admitting it. The Comptroller-General conceded the notice to produce was deficient because it was imprecise about the documents to which it applied.

Justice Carolyn Simpson adopted a 1988 ruling by the NSW District Court, In the matter of Lawrence Charles O’Neill, which held that section 214(3) authorising search and seizure was limited to documents pertaining to goods on which the notice to produce was based. She held that the range of documents went well beyond what was authorised by section 214 of the Customs Act. Although the seizure was unlawful she admitted the evidence under section 138 of the Evidence Act. Justice Simpson convicted Mr Parker on all 14 charges. She ordered him to pay a penalty of more than $10 million, which was 3.25 times the duty evaded, and a penalty of $12,000 for the unauthorised movement of goods, plus costs. Mr Parker appealed unsuccessfully to the NSW Court of Appeal, which held that Justice Simpson was mistaken in accepting the construction of section 214 in O’Neill. However, she correctly admitted the evidence. Customs had not shown wilful disregard of the Customs Act.

The High Court granted Mr Parker special leave to appeal on the ground that the Court of Appeal had denied him procedural fairness by finding against him without notifying him of its intention to depart from the O’Neill decision and giving him an opportunity to respond. The High Court, by a 4-1 majority, dismissed the appeal. It held that Mr Parker was not deprived of the possibility of a successful outcome. The Court held that although the Court of Appeal disagreed with O’Neill, it decided the appeal on the basis that O’Neill was correctly decided which meant there was no prejudice to Mr Parker. Consideration by a court of the weight to be given to decisions that were not authoritative did not necessarily attract an obligation to invite submissions by the parties about those decisions. What was required was that the Court of Appeal gave the parties sufficient opportunity to be heard on all the issues and there was no relevant unfairness.

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 (12 February 2009)

Tabcorp rented office premises from Bowen Investments. A clause in the lease prohibited the tenant from making substantial alteration or addition to the leased premises without first obtaining the landlord’s written consent. Within six months of leasing the building Tabcorp redesigned and replaced the foyer without the landlord’s consent, written or otherwise. The High Court decided Bowen Investments was entitled to damages that would cover both the cost of reinstating the foyer as it had been prior to the unauthorised alteration and the loss of rent while that work was being done, rather than to damages which would cover only the reduction in the value of the premises arising out of the unauthorised work.

Mrs Bergamin is a director of Bowen Investments. During 1996 she took particular interest in the construction of the foyer in a building owned by the company, located at 5 Bowen Crescent Melbourne. The foyer utilised San Francisco Green granite, Canberra York Grey granite and sequence-matched crown-cut American cherry timber in its construction. On 23 December 1996 Bowen Investments leased the building to Tabcorp.   The lease commenced on 1 February 1997 for a term of 10 years. It contains options to renew for a further five years in 2007 and 2012. Under clause 2.13 Tabcorp promised “not without the written approval of the Landlord first obtained (which consent shall not be unreasonably withheld or delayed) to make or permit to be made any substantial alteration or addition to [the premises]”.   On 10 July 1997 Mrs Bergamin had indicated to Tabcorp that Bowen Investments did not consent to any alteration to the foyer. On 11 July 1997 she wrote to Tabcorp advising the landlord could not consent to proposed alterations until they had been examined at a site meeting arranged for 14 July 1997. When Mrs Bergamin attended the premises to inspect the proposal on 14 July she found that a glass and stone partition, timber panelling and stone floor tiles had been removed and that what remained of the floor stone work was being jack-hammered. Despite her protests Tabcorp continued the work of altering the foyer until it was completed in August 1997.

Bowen Investments sued Tabcorp for damages in the Federal Court. The trial judge described Tabcorp’s conduct as involving “contumelious disregard” for Bowen Investments’ rights. Neither party disputed the description. The trial judge found there had been a breach of clause 2.13 but determined that the appropriate assessment of damages for the breach was the reduction in the value of the premises arising out of the unauthorised alteration to the foyer. The reduction in value arose out of the reduction in the floor area available for use as office space. The resulting loss of rental income was assessed to be $34,820. On appeal the Full Court of the Federal Court determined that damages should be assessed taking account of the cost of restoring the foyer to its condition before Tabcorp made the alterations. A majority of the Full Court increased the damages to $1.38 million, made up of $580,000 for the cost of restoring the foyer to its original condition and $800,000 for rental losses during the restoration period. The third member of the Full Court wanted to hear further argument about how the damages should be assessed. Tabcorp appealed that decision and two Justices of the High Court granted special leave to appeal on 1 August 2008.   In a unanimous decision the High Court held that, in the absence of its giving written consent to any alterations, Bowen Investments was contractually entitled to have the building foyer remain as it had been constructed. By altering the foyer without consent Tabcorp had failed to perform its contractual obligation to preserve the foyer. The appropriate measure of Bowen Investments’ loss was the cost of restoring the foyer to the condition it would have been in had Tabcorp not breached that obligation. The High Court dismissed Tabcorp’s appeal thus confirming the assessment of damages at $1.38 million.