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High Court Bulletin

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

[2021] HCAB 10 (10 December 2021)

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: Summary of New Entries
2: Cases Handed Down
3: Cases Reserved
4: Original Jurisdiction
5: Section 40 Removal
6: Special Leave Granted
7: Cases Not Proceeding or Vacated
8: Special Leave Refused

1: Summary of New Entries

2: Cases Handed Down

Case	Title
Bell v The State of Tasmania	Criminal Law
George v The State of Western Australia	Criminal Law
Orreal v The Queen	Criminal Practice
Arsalan v Rixon; Nguyen v Cassim	Damages
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane	Immigration
Deputy Commissioner of Taxation v Huang	Practice and Procedure
Port of Newcastle Operations Pty Limited v Glencore Coal Assets Australia Pty Ltd & Ors	Trade Practices

3: Cases Reserved

Case	Title
Plaintiff M1/2021 v Minister for Home Affairs	Immigration
Australian Building and Construction Commissioner v Pattinson & Anor	Industrial Law
Kozarov v State of Victoria	Torts

4: Original Jurisdiction

Case	Title
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor	Administrative Law
Ruddick v Commonwealth of Australia	Constitutional Law

5: Section 40 Removal

Case	Title
Garlett v The State of Western Australia & Anor	Constitutional Law
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor v Montgomery	Constitutional Law

6: Special Leave Granted

Case	Title
O'Dea v The State of Western Australia	Criminal Law
Google LLC v Defteros	Defamation

7: Cases Not Proceeding or Vacated

8: Special Leave Refused

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the December 2021 sittings.

Criminal Law

Bell v State of Tasmania

H2/2020: [2021] HCA 42

Judgment delivered: 8 December 2021

Coram: Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ

Catchwords:

Criminal law – Defences – Honest and reasonable mistake of fact – Where appellant charged with supplying controlled drug to child contrary to s 14 of Misuse of Drugs Act 2001 (Tas) – Where appellant claimed he honestly and reasonably believed child was adult – Where appellant's conduct, had his belief been true, would have constituted lesser offence of supplying controlled drug contrary to s 26 of Misuse of Drugs Act – Where common law principle of honest and reasonable mistake of fact operates to excuse conduct that, on believed state of facts, would be innocent – Meaning of "innocent" – Whether appellant entitled to rely on excuse of honest and reasonable mistake of fact.
Words and phrases – "common law principle", "criminal responsibility", "excuse", "ground of exculpation", "honest and reasonable but mistaken belief in the existence of any state of facts", "innocent", "justification", "mistake as to age", "voluntary and intentional".
Criminal Code (Tas) – ss 13, 14.
Criminal Code Act 1924 (Tas)…

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

Case: [2021] HCAB 10
Decision Date

CaseChat Overview and Summary

In Bell v The State of Tasmania, the High Court dismissed an appeal against a conviction for supplying a controlled drug to a child. The appellant argued he was entitled to rely on the excuse of honest and reasonable mistake of fact, as he genuinely believed the child was an adult. The Court held that the common law principle of honest and reasonable mistake of fact operates to excuse conduct that, on the believed state of facts, would be innocent. However, the Court found that the appellant's conduct, had his belief been true, would have constituted the lesser offence of supplying a controlled drug, which is not considered innocent. Therefore, the appellant was not entitled to rely on the excuse of honest and reasonable mistake of fact.

In George v The State of Western Australia, the High Court refused special leave to appeal against a conviction for indecently dealing with a child between the ages of 13 and 16 years. The applicant submitted that a miscarriage of justice occurred because the trial judge failed to warn the jury that the applicant's silence could not be used as evidence against him. The majority of the Western Australian Court of Appeal held that the absence of such a direction did not constitute a miscarriage of justice. The High Court agreed and refused special leave to appeal.

In Orreal v The Queen, the High Court allowed an appeal against a conviction for unlawfully and indecently dealing with a child under the age of 16 years and rape. The Court of Appeal found a miscarriage of justice because the trial judge failed to direct the jury to disregard inadmissible evidence that both the appellant and the complainant tested positive for herpes simplex virus type 1. The Court of Appeal applied the proviso that no substantial miscarriage of justice actually occurred, as it concluded that the inadmissible evidence could not have impacted the jury's assessment of the reliability or credibility of the complainant. However, the High Court held that the proviso should not have been applied in this case and allowed the appeal.

In Arsalan v Rixon; Nguyen v Cassim, the High Court dismissed appeals against a decision that costs of hiring replacement vehicles of equivalent value to damaged vehicles were not recoverable as damages. The respondents argued that the costs were incurred to mitigate the loss of use of their prestige vehicles, which were negligently damaged. The Court held that hiring replacement vehicles of equivalent value constituted acts taken to mitigate the loss, but the respondents were not required to prove the need for such replacement vehicles. The Court also held that hiring replacement vehicles of equivalent value was not unreasonable and dismissed the appeals.

Overall, the High Court made several decisions in these cases, addressing issues such as the availability of certain legal defences, the admissibility of evidence, the interpretation of statutory provisions, and the assessment of damages. The Court's reasoning and outcomes in each case provide valuable guidance for legal practitioners and contribute to the development of Australian law.

Orders