High Court of Australia Judgments – Summary Notes

Washer v The State of Western Australia [2007] HCA 48 (8 November 2007)

Evidence of an acquittal on one drug conspiracy charge was rightly excluded from a later trial on a different charge, the High Court of Australia has held.

Mr Washer was convicted by the Western Australian District Court in 2005 of conspiring with John Di Lena and Andrea Scott between 18 May and 2 June 2000 to possess a prohibited drug, methylamphetamine, with intent to sell or supply it, and sentenced to seven years’ jail. The alleged conspiracy involved the proposed importation to WA from Queensland of two kilograms of the drug. Mr Washer contributed $55,000 to the deal. He and Mr Di Lena, allegedly the organiser, flew to Brisbane at different times to organise the shipment. An associate, Robert Fisher, was sent to Brisbane to collect the drug. Rather than flying back, Mr Fisher wanted to return by hire car with his girlfriend, Pauline Lennon. Ms Scott arranged to have the car hire charged to her credit card. In northern New South Wales, Mr Fisher and Ms Lennon argued, and she drove off in the car, with the drug concealed inside. Police apprehended Ms Lennon two days later and found the concealed methylamphetamine. Ms Lennon was arrested, Mr Fisher was arrested a few days later, and Ms Scott’s payment for the hire car led to her being arrested, along with Mr Di Lena and Mr Washer.

In 2004, Mr Washer was acquitted of a separate conspiracy with Gavin Whitsed and William Bowles to sell or supply methylamphetamine. They and Mr Di Lena and Ms Scott were members of the Rebels Outlaw Motorcycle Gang. Some evidence presented at the first trial, including police surveillance of conversations between Mr Washer, Mr Whitsed and Mr Bowles, and scales and a coffee grinder with traces of the drug found in Mr Washer’s home, was also used at the second trial. During that trial, Mr Washer’s counsel, during cross-examination of a police witness, sought to adduce evidence of the earlier acquittal. Judge Henry Wisbey disallowed the line of questioning.

Mr Washer appealed unsuccessfully against his conviction to the WA Court of Appeal, then appealed to the High Court. He argued that Judge Wisbey erred in not allowing evidence of the acquittal to be adduced and that once the evidence was received Judge Wisbey should have directed the jury to give Mr Washer the full benefit of his acquittal.

The High Court unanimously dismissed the appeal. Four members of the Court upheld Judge Wisbey’s ruling against the earlier acquittal being allowed into evidence. One member would have allowed evidence of the acquittal but held that the proviso that there had been no substantial miscarriage of justice applied, due to overwhelming evidence against Mr Washer. The plurality held that the acquittal had to be relevant to be admitted into evidence. Relevance depended upon whether the evidence could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings. The acquittal would be relevant if it gave an appellant a right to the benefit of an assumption related to the assessment of other evidence in the case, or it had had some logical connection with the assessment of any facts in issue. The plurality held that the acquittal only established that Mr Washer was not guilty of a particular conspiracy, but did not establish that he was innocent of drug dealing or that his conversations with Mr Whitsed and Mr Bowles were not about drugs. It held that no logical connection between his acquittal and some fact in issue at the later trial was identified and the evidence was properly excluded as irrelevant.

PM v The Queen [2007] HCA 49 (8 November 2007)

The New South Wales District Court had jurisdiction to try a child who was originally charged with an offence that was downgraded to a lesser offence that would ordinarily be dealt with by the Children’s Court, the High Court of Australia has held.

In September 2004, when PM was 16, he was given a court attendance notice alleging that he had had non-consensual sexual intercourse with a girl in circumstances of aggravation, namely that she was aged under 16. She was 14. A month later, PM was given another court attendance notice charging him with a second count of aggravated sexual assault in which the circumstance of aggravation was that he caused actual bodily harm to the girl. The first charge, relating to age, was not a serious children’s indictable offence, but the second, relating to bodily harm, was. Under the Children (Criminal Proceedings) Act (CCP Act), the NSW Children’s Court has jurisdiction to hear and determine proceedings in respect of any offence other than a serious children’s indictable offence. At the committal hearing at the Bidura Children’s Court in Glebe in April 2005, the Director of Public Prosecutions proceeded only on the second offence and the magistrate committed PM for trial at the District Court. The DPP filed an indictment containing only the second charge. In March 2006, the DPP filed a fresh indictment containing three counts which were the first charge and two alternative counts: having sexual intercourse with a girl aged between 14 and 16, and assaulting a girl under 16 at the same time committing an act of indecency on her. None of the charges was a serious children’s indictable offence.

Shortly after the District Court trial began, the jury sent a note to Judge John McGuire asking why PM was being tried as an adult and PM submitted that the proceedings should be remitted to the Children’s Court. Judge McGuire concluded that, because the Children’s Court had not said that the charges may not be dealt with summarily, the District Court had no jurisdiction to deal with the charges and he remitted the matter to the Children’s Court. The DPP appealed to the Court of Appeal which, by majority, allowed the appeal and set aside Judge McGuire’s order. PM appealed to the High Court. He argued that all offences not defined as serious children’s indictable offences are required to be dealt with summarily and the District Court had no jurisdiction to hear and determine the charges because he had not asked for a jury trial and the Children’s Court had not decided that it could not properly dispose of the particular charges in a summary manner.

The High Court unanimously dismissed the appeal. It held that, while section 44 of the CCP Act gives the District Court power to remit a matter to the Children’s Court if the District Court is satisfied that it does not have jurisdiction to deal with the charge, nothing in the Act excludes or limits its jurisdiction in respect of indictable offences (crimes that warrant a trial by jury). Criminal proceedings against PM were commenced appropriately in the District Court. An indictment that lays charges different from those on which they were committed for trial does not affect the jurisdiction of the court in which the indictment is filed. The CCP Act does not give the Children’s Court exclusive jurisdiction over indictable offences that not are serious children’s indictable offences. The condition for exercising the power under section 44 is not satisfied and the District Court had jurisdiction to deal with the charges against PM.

Weston Aluminium Pty Limited v Environment Protection Authority; Weston Aluminium Pty Limited v Alcoa Australia Rolled Products [2007] HCA 50 (8 November 2007)

An aluminium recycling plant was not permitted to process aluminium dross brought in from interstate without a separate development consent, the High Court of Australia has held.

In 1996, Alcoa acquired Comalco Australia’s aluminium manufacturing plant at Yennora in western Sydney. Since the 1960s, aluminium cans and other scrap have been recycled at Yennora by melting them down and casting them into blocks or bars. Melting aluminium scrap produces aluminium dross which, when used as feedstock in a rotary furnace, allows recovery of more aluminium. Smelting also produces aluminium dross and since 2002, when it obtained a variation to its licence under the Protection of the Environment Operations Act (PEO Act), Alcoa has brought dross from its smelter at Port Henry in Geelong to Yennora as feedstock.

Weston Aluminium brought proceedings in the New South Wales Land and Environment Court (LEC) alleging that the processing of imported dross at Yennora is a land use which requires development consent under the Environmental Planning and Assessment Act (EPA Act) and that Alcoa lacks this consent. Weston sought declarations and an injunction restraining Alcoa from processing imported dross. In 2004, Justice David Lloyd held that Weston was entitled to this relief but no orders granting relief were made because Alcoa applied under the EPA Act for authority to process imported dross at Yennora. The application was not determined within the time limit so Alcoa brought proceedings in the LEC to challenge the deemed refusal of its application. Alcoa obtained leave to appeal out of time against Justice Lloyd’s decision, even though no final orders had been made. In 2005, Weston began further proceedings in the LEC to challenge the variation to Alcoa’s licence to process imported dross. The LEC dismissed these proceedings and Weston appealed to the NSW Court of Appeal. The Court of Appeal ordered that Weston’s first proceedings be dismissed and upheld the LEC’s order dismissing Weston’s second proceedings. By special leave, Weston appealed to the High Court regarding the first proceedings and Weston also sought special leave to appeal in the second proceedings.

The High Court unanimously allowed the appeal in the first matter. In the second matter, it granted special leave to appeal, treated the appeal as heard and allowed the appeal. In relation to the first appeal, there was no development consent which permitted Alcoa’s use of the Yennora site to process imported dross. In the second matter, the Court held that the PEO Act provides that the Environment Protection Authority is prohibited from issuing or varying any licence regulating a particular use of land unless development consent has been granted for that use. When the EPA varied the relevant licence, Alcoa did not have development consent to use the Yennora site to process imported dross, therefore the variation was invalid. The matter was remitted to the LEC for further consideration in conformity with the High Court’s decision.

Elliott v The Queen; Blessington v The Queen [2007] HCA 51 (8 November 2007)

The High Court of Australia has refused Mr Elliott and Mr Blessington leave to reopen their 1992 appeal and held that a recommendation that they never be released did not give them grounds to appeal against their life sentences.

The two men, along with Stephen Jamieson, were convicted in the NSW Supreme Court in 1990 in relation to the abduction, rape and murder of 20-year-old bank teller Janine Balding in Sydney on 8 September 1988. Mr Elliott was 16, Mr Blessington 14, and Mr Jamieson 22 at the time of the murder. Justice Peter Newman jailed the three for life and recommended that they never be released. At the time, such a recommendation had no legal effect. The Court of Criminal Appeal (CCA) in 1992 dismissed appeals by Mr Elliott and Mr Blessington against the severity of their sentences. The final orders made those appeals were not perfected (properly finalised), and in 2006, they brought another appeal to the CCA in which they sought to have the sentences imposed by Justice Newman quashed and to be resentenced in light of subsequent changes to sentencing laws. The CCA dismissed the appeal, but Justice David Kirby, in dissent, would have resentenced them to 28 years’ jail with a non-parole period of 21 years. They appealed to the High Court.

Mr Elliott and Mr Blessington argued that Justice Newman’s recommendation had legal effect upon their punishment and it could then have been the subject of an appeal against sentence. They also argued that, in any event, the treatment of the recommendation by later legislation gave it the status of an order made by the trial court against which they could appeal.

The High Court unanimously dismissed their appeals. It held that the non-release recommendation did not have the character of an order by the trial court against which an appeal against sentence would lie. The Court also rejected the submission regarding the effect of subsequent legislation. Any subsequent legal effect resulting from Justice Newman’s recommendation was a matter of legislation, not judicial power. The High Court held that the recommendation never was and did not subsequently acquire the character of an order made by the trial court, with the result that the CCA was correct to dismiss the 2006 appeal.

Although the orders made in the 1992 appeal had not been perfected, the High Court held that the CCA was correct to refuse to grant leave to reopen the 1992 decision. Subsequent legislation affecting the position of Mr Elliott and Mr Blessington did not create any miscarriage of justice in the 1992 CCA decision which would call for interference in that decision. The 1992 decision did not proceed upon any misapprehension of the relevant law, and there was no other reason to reopen the case.

Director of Public Prosecutions for Victoria v Le [2007] HCA 52 (14 November 2007)

Only the wife’s interest in an apartment owned by her and her husband, rather than the whole apartment, should have been quarantined from confiscation after being used for criminal purposes by the husband, the High Court of Australia has held.

In 2003, Ms Le’s husband, Roy Le, was charged with a number of offences including trafficking in a commercial quantity of heroin. He pleaded guilty in 2005 and was sentenced to four years’ jail with a two-year non-parole period. The Les married in Vietnam in 1997. In 1998 Mr Le bought an apartment in Sunshine in Melbourne and Ms Le has lived there since she came to Australia in 1999. Two months after being charged, Mr Le transferred the apartment into their joint names, with the consideration for the transfer expressed as “natural love and affection”. Ms Le was concerned that if anything happened to Mr Le his children from a former marriage would get the apartment and she would have nowhere to live. After Mr Le was charged, the DPP obtained from the Victorian County Court a restraining order under Victoria’s Confiscation Act over the property. The apartment was “tainted property” because Mr Le had used it to store and prepare heroin for sale. It was automatically forfeited to the State 60 days after his conviction.

Ms Le later sought an order under section 52 of the Act excluding the property from forfeiture. Judge Stuart Campbell said that the transfer appeared to be no more than a recognition of Ms Le’s matrimonial rights. He and the majority of the Court of Appeal held that an order under section 52 excluded all of the property in which Ms Le claimed an interest, and not merely her interest in the property. The Court of Appeal unanimously agreed with Judge Campbell that “natural love and affection” in the circumstances of the case constituted “sufficient consideration” under section 52 for acquiring an interest in property and that Ms Le lacked a reasonable suspicion that the apartment was “tainted property”. The DPP had sought to have the exclusion order apply only to Ms Le’s interest as a joint tenant. The DPP appealed to the High Court.

Three judges of the Court allowed the appeal in part. Two judges would have allowed it entirely. The majority allowed the appeal on the ground that the exclusion order should have applied only to Ms Le’s interest rather than to the whole property. It upheld the Court of Appeal’s findings that “sufficient consideration” encompassed “natural love and affection” and that Ms Le had not held a reasonable suspicion that the apartment had become “tainted property” through criminal activity there. The minority held that the original restraining order had applied to the whole property, but held that “natural love and affection” did not amount to “sufficient consideration” under section 52. The DPP had undertaken to pay Ms Le’s costs whatever the outcome.

Queensland Premier Mines Pty Ltd v French [2007] HCA 53 (15 November 2007)

Registration of a transfer of a mortgage does not necessarily assign the right to recover money owed under a separate loan agreement, the High Court of Australia has held.

In 1989, Seventeenth Febtor Pty Ltd loaned $415,000 to Queensland Premier Mines (QPM) and Mr and Mrs Beckinsale and $560,000 to QPM. The loans were for acquiring and developing land at Yeppoon on the central Queensland coast. Interest of 24 per cent was charged and the loans were collaterally secured by mortgages over specified land. The mortgages were granted by QPM in favour of Seventeenth Febtor. The Beckinsales were not a party to them. By a deed dated 18 December 1992, Seventeenth Febtor assigned its rights and interests in the mortgages and loan agreements to Mr “Rusty” French. No money was repaid. In 1999 Mr French told Mr Beckinsale he planned to sell the land covered by the mortgages. The outstanding principal and interest due under the loan agreements was $4 million. In 2000, Mr French accepted Mr Beckinsale’s offer on behalf of Marminta to buy back the mortgages for $950,000, but a dispute arose. Marminta commenced action in the Queensland Supreme Court for specific performance of the buy-back agreement. Mr French brought proceedings in the Victorian Supreme Court in 2002 to recover the money due under the loan agreements from QPM and the Beckinsales. QPM agreed to sell the development site, which included the mortgaged land, to Unison Properties for $2.44 million.

Marminta was initially unsuccessful in its claim for specific performance but succeeded on appeal. The Queensland Court of Appeal ordered Mr French to do all that was necessary to enable Marminta to become the registered proprietor of the mortgages. In January 2004, a transfer of the mortgages to Marminta, Marminta’s release of mortgage, and a transfer of the estate to Unison Properties were registered. In the Victorian proceedings, which became the subject of the appeal to the High Court, Marminta contended that the right to sue upon the mortgages and to recover any debt under them vested in it when the transfer of the mortgages to it was registered which meant Marminta became the creditor of QPM and the Beckinsales of what was owed under the loan agreements. The Supreme Court made declarations sought by Marminta but the Victorian Court of Appeal unanimously gave judgment for Mr French for the balance owing by QPM and the Beckinsales under the loan agreements and for the rates and taxes he had been obliged to pay.

QPM, the Beckinsales and Marminta appealed to the High Court, which unanimously dismissed the appeal. The appellants argued that the registration of a transfer of a mortgage effects an assignment of the right to recover money owed under a separate loan agreement secured by the bill of mortgage. They argued that this is so under section 62 of Queensland’s Land Title Act, which provides that, on registration of an instrument of transfer for interest in a lot, all the transferor’s rights vest in the transferee. However, the Court held that there were two separate and distinct covenants to pay: one contained in the loan agreement, which is freestanding and enforceable in its terms, and another under the mortgage. Section 62 did not justify a construction which allows the right to recovery of a debt merely collaterally secured by the mortgage. The debt sought to be recovered by Mr French arose under the loan agreements, not under the mortgage. He was assigned the right to recover the money owing under the loan agreements and Marminta was not an assignee from him. He retained the right to sue and recover that money from QPM and the Beckinsales.

Bluebottle UK Limited v Deputy Commissioner of Taxation [2007] HCA 54 (5 December 2007)

Assignments of dividend rights to two foreign shareholders in Virgin Blue were ineffective to displace Virgin Blue’s obligation to retain money to cover the tax liabilities of those shareholders resulting from earlier transactions, the High Court of Australia has held.

On 11 November 2005, Virgin Blue’s directors declared a final, fully franked dividend of 25 cents per ordinary share with payment due on 15 December 2005. They fixed 28 November 2005 as the record date. On that date, Cricket held 23 per cent of the issued capital of Virgin Blue and Virgin Holdings held 2.08 per cent. Cricket and Virgin Holdings, both Geneva-based corporations, could expect dividends of about $65 million. The Tax Commissioner alleged that each was liable to pay tax on a capital gain made on disposal of Virgin Blue shares in 2003. The Commissioner attempted to intercept the two companies’ dividend payments and have the amounts applied to their tax liabilities. On 12 December 2005, the Commissioner gave Virgin Blue two notices directing it to retain $72,518,346.06 in respect of Cricket and $20,839,554.45 in respect of Virgin Holdings to cover their tax. (Cricket was later assessed to be liable to pay $64,441,613.86 in tax and interest and Virgin Holdings’ liability was assessed at $20,483,993.56.) The notices were issued pursuant to section 255 of the Income Tax Assessment Act (ITAA). The day after the notices were issued, the two companies assigned their dividend rights to Bluebottle which gave Virgin Blue an irrevocable direction to pay the dividends to Barfair. On 14 December 2005, the Commissioner issued assessment notices to Cricket and Virgin Holdings for the year to 31 March 2004.

On 15 December 2005, Bluebottle, Cricket, Virgin Holdings and Barfair commenced proceedings in the New South Wales Supreme Court seeking declarations that the various transactions were effective and that notices issued by the Commissioner had no force or effect in relation to the dividend. Justice Ian Gzell made such declarations but the Commissioner’s appeal to the Court of Appeal was allowed. The Court of Appeal ordered Virgin Blue to pay the Commissioner the dividends that had been declared. The other four companies appealed to the High Court.

The Court unanimously dismissed the appeal. It held that in the circumstances of the case the Commissioner’s first notices did not comply with section 255(1) of the ITAA as no assessment had been issued to Cricket or Virgin Holdings so no tax was due by them. By contrast, when the Commissioner’s second notice was given, assessments had been issued to the two companies and tax was then due and payable. Virgin Blue had control of money belonging to its shareholders because it was liable to pay the declared dividend to those who were its shareholders on the record date. Despite the assignments to Bluebottle, Virgin Blue remained liable to pay the dividend to Cricket and Virgin Holdings. Virgin Blue was obliged to retain from the dividends sufficient funds to pay the tax due under each assessment.

Gately v The Queen [2007] HCA 55 (6 December 2007)

No miscarriage of justice occurred when a jury, without the trial judge or lawyers present, was able to have a second viewing of a video of a child giving her evidence in a sexual offences trial, the High Court of Australia has held.

Mr Gately was convicted in the Queensland District Court in November 2004 of 10 counts of indecent treatment of a girl under 16 who is a lineal descendant and one count of incest. A further charge of attempting to procure a child under 16 to commit an indecent act was withdrawn during the trial. The girl was 14 at the time the offences allegedly occurred between 22 July and 4 August 2002 and 16 by the time of the trial. A pre-recorded video of the girl giving her evidence and being cross-examined was shown to the jury. During deliberations, the jury asked to see the video again. Counsel for both the prosecution and defence agreed that, rather than reconvening the court, the jury could watch the video in the courtroom supervised by the bailiff.

Mr Gately appealed to the Court of Appeal against his convictions. It unanimously dismissed the appeal. He then appealed to the High Court, alleging that there had been a miscarriage of justice because Judge Milton Griffin erred in allowing the jury to watch the video again and he did not direct the jury not to give undue weight to the girl’s evidence. Mr Gately also alleged that Judge Griffin erred in permitting the prosecutor to tender the girl’s written statement to police when she had already given full pre-recorded evidence.

The High Court, by a 4-1 majority, dismissed the appeal. The Court unanimously held that the way in which the video was replayed to the jury without the Court reconvening was irregular, but the majority held that in the circumstances of the case this had not led to a miscarriage of justice. Mr Gately’s counsel’s consent to the jury watching the video with the bailiff was significant. Mr Gately did not give evidence or call evidence in his defence and little other evidence was given apart from the girl’s pre-recorded testimony. Her evidence was critical to both the prosecution’s case and Mr Gately’s answer that the prosecution had not proved its case beyond reasonable doubt. Allowing only the girl’s evidence to be re-examined by the jury in the circumstances of this case presented no risk of an unbalanced consideration of competing accounts of what allegedly happened. The majority rejected Mr Gately’s contention that Judge Griffin should have directed the jury not to give undue weight to the video evidence. No such direction was sought at trial.

The Court unanimously dismissed the third ground of appeal, that the girl’s police statement was wrongly received in evidence. It held that the statement was properly admitted under section 93A of the Queensland Evidence Act which concerns written statements by children or intellectually impaired persons where they were also available to give evidence at trial.

Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56 (7 December 2007)

A costs order made against a bankrupt after he entered bankruptcy is not a debt provable in his bankruptcy, even though it related to a damages award made before the bankruptcy, the High Court of Australia held today.

In the Queensland Supreme Court in 2005, Justice Richard Chesterman heard a complex multi-party action concerning the ownership of machinery at an open-cut coal mine. On 26 August he gave judgment for Ensham in its cross-claim against Southern Cross Mine Management and Mr Foots, who had been Ensham’s chief executive officer. Justice Chesterman found that Mr Foots had breached his fiduciary and contractual duties of good faith towards Ensham, and that he had was also liable for breaches by Southern Cross of section 52 of the Trade Practices Act relating to misleading and deceptive conduct. On 1 September 2005, Justice Chesterman awarded damages of $2.46 million to Ensham. Two weeks later, Mr Foots entered bankruptcy.

On 22 November 2005, Justice Chesterman heard argument as to whether a stay under section 58(3) of the Bankruptcy Act applied so that Ensham would require leave of the Federal Court to take a fresh step in proceedings, in this case applying for costs, where the fresh step was in respect of a provable debt. If the costs order was a debt or liability provable in his bankruptcy within the meaning of section 82(1) of the Bankruptcy Act, the proceedings in which the costs order was made would be stayed under section 58(3). If the costs order was not a provable debt or liability Mr Foots remains liable to meet those costs after his discharge from bankruptcy. A release from bankruptcy only applies to debts provable in the bankruptcy. Justice Chesterman held that since the costs order would not be a debt provable in Mr Foots’s bankruptcy, section 58(3) was no impediment to his making a costs order. On 3 February 2006, Justice Chesterman ordered Mr Foots to pay Ensham’s costs. Rather than awarding costs on the usual party-and-party basis, on application from Ensham Justice Chesterman awarded them on an indemnity basis in light of Mr Foots’s wrongdoing. By majority, the Queensland Court of Appeal dismissed an appeal by Mr Foots.

In the High Court, he argued that the costs order was, in the terms of section 82 of the Bankruptcy Act, a debt or liability arising from the award of damages, an obligation incurred before his bankruptcy. Alternatively, Mr Foots submitted that the costs order was a liability incidental to a provable debt. The Court, by a 4-1 majority, rejected both arguments and dismissed the appeal. It held that the award of costs is discretionary, and arises independently of the entry of judgment against Mr Foots. The costs order fell outside section 82(1) because it was made after bankruptcy and was not a liability to which he was subject at the date of bankruptcy. Mr Foots was also not under a pre-existing obligation to pay costs until the order was made against him. The stay in section 58(3) of the Act therefore did not apply.