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Case [2012] HCAB 6 13 June 2012

Constitutional Validity

Natural Justice & Procedural Fairness

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High Court Bulletin

Produced by the Legal Research Officer,
High Court of Australia Library

[2012] HCAB 06 (13 June 2012)

A record of recent High Court of Australia cases: decided, reserved for judgment, awaiting hearing in the Court’s original jurisdiction, granted special leave to appeal, refused special leave to appeal and not proceeding or vacated

1: Cases Handed Down
2: Cases Reserved
3: Original Jurisdiction
4: Special Leave Granted
5: Cases Not Proceeding or Vacated
6: Special Leave Refused

Summary of New Entries

1: Cases Handed Down

Case	Title
PGA v The Queen	Criminal Law

2: Cases Reserved

Case	Title
Likiardopoulos v The Queen	Criminal Law
Patel v The Queen	Criminal Law
Commissioner of Taxation v Qantas Airways Limited	Taxation
Newcrest Mining Limited v Thornton	Torts

3: Original Jurisdiction

Case	Title
Plaintiff M47/2012 v Director General of Security & Ors	Citizenship and migration
RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, One of the Judges of the Family Court of Australia & Ors	Constitutional law

4: Special Leave Granted

Case	Title
No new matters were granted special leave since High Court Bulletin 5 [2012] HCAB 05.

1: Cases Handed Down

The following cases were handed down by the High Court of Australia during the May/June 2012 sittings.

Criminal Law

PGA v The Queen

A15/2011: [2012] HCA 21.

Judgment delivered: 30 May 2012.

Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Catchwords:

Criminal law – Rape – Husband's immunity from prosecution for rape of wife – Presumption of consent to intercourse by wife in marriage – Appellant charged in 2010 with two counts of rape contrary to s 48 of Criminal Law Consolidation Act 1935 (SA) – Alleged rapes committed in 1963 against then spouse – Legislative amendments enabled institution of proceedings despite lapse of time – Elements of offence of rape in 1963 supplied by common law – Whether in 1963 common law of Australia presumed consent by wife in marriage.

Precedent – Judicial method – Development of common law – Whether presumption of consent by wife in marriage was part of common law of Australia – Whether statement of common law in R v L [1991] HCA 48; (1991) 174 CLR 379 applied to events alleged to have occurred in 1963.

Words and phrases – "common law", "marital exemption", "marital immunity", "presumption of consent", "rape", "retrospective application".

Appealed from SA SC (CCA): (2010) 109 SASR 1; [2010] SASCFC 81.

2: Cases Reserved

The following cases have been reserved or part heard by the High Court of Australia.

Administrative Law

Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor

A7/2011: [2011] HCATrans 322.

Date heard: 29 November 2011 — Judgment reserved.

Coram: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

Catchwords:

Administrative law — Judicial review — Grounds of review — Jurisdictional error — Privative clauses — Applicant notified two disputes in Industrial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: High Court Bulletin [2012] HCAB 6
Case: [2012] HCAB 6
Decision Date

CaseChat Overview and Summary

In PGA v The Queen, the High Court was asked to consider whether the common law of Australia presumed consent by a wife in marriage in 1963, which would have exempted the husband from being charged with rape. The court examined the development of the common law and whether the presumption of consent was part of the common law in 1963. The court also considered the retrospective application of the law in this case. In the end, the court found that the presumption of consent by a wife in marriage was not part of the common law of Australia in 1963 and therefore, the husband could be charged with rape.

In Plaintiff M47/2012 v Director General of Security & Ors, the High Court was asked to consider whether the indefinite detention of an unlawful non-citizen without a judicial order infringed the judicial power of the Commonwealth as set out in Chapter III of the Constitution. The court examined the scope of the Executive's power to detain an unlawful non-citizen and whether this power involved the exercise of judicial power by the Executive. The court found that the indefinite detention of an unlawful non-citizen without a judicial order did not involve the exercise of judicial power by the Executive and therefore did not infringe Chapter III of the Constitution.

In RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, One of the Judges of the Family Court of Australia & Ors, the High Court was asked to consider whether the Family Law (Child Abduction Convention) Regulations 1986 required a Chapter III court to exercise judicial power in a manner repugnant to the judicial process. The court examined the scope and content of the duty of procedural fairness and whether the regulations were beyond the delegated-legislative power under which they were purportedly made. The court found that the regulations did not require a Chapter III court to exercise judicial power in a manner repugnant to the judicial process and were not beyond the delegated-legislative power.

In Clodumar v Nauru Lands Committee, the High Court was asked to consider whether evidence of Presidential approval of a land transfer in Nauru was admissible in an appeal to the High Court. The court examined the scope of the original jurisdiction of the High Court and whether fresh evidence could be admitted in an appeal in the original jurisdiction. The court found that evidence of Presidential approval of the land transfer was admissible in the appeal to the High Court.

Orders