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High Court Bulletin

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

[2020] HCAB 9 (13 November 2020)

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
GBF v The Queen	Criminal Practice
Calidad Pty Ltd & Ors v Seiko Epson Corporation & Anor	Patents
Deguisa & Anor v Lynn & Ors	Real Property

3: Cases Reserved

Case	Title
Wigmans v AMP Limited & Ors	Civil Procedure
Gerner & Anor v The State of Victoria	Constitutional Law
Palmer & Anor v The State of Western Australia & Anor	Constitutional Law
Minister for Immigration and Border Protection v Makasa	Migration Law

4: Original Jurisdiction

Case	Title
Zhang v Commissioner of Police & Ors	Constitutional Law

5: Section 40 Removal

Case	Title
Minister for Home Affairs v Benbrika	Constitutional Law

6: Special Leave Granted

Case	Title
Deputy Commissioner of Taxation v Shi	Evidence

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 September 2020 sittings.

Criminal Practice

GBF v The Queen

B18/2020: [2020] HCA 40

Judgment delivered: 4 November 2020

Coram: Kiefel CJ, Bell, Keane, Gordon and Edelman JJ

Catchwords:

Criminal practice – Trial – Directions to jury – Where appellant charged in seven counts with sexual offences allegedly committed against complainant half-sister when she was 13 and 14 years old – Where prosecution case wholly dependent on acceptance of complainant's evidence – Where appellant did not give or call evidence at trial – Where trial judge directed jury in unexceptional terms with respect to presumption of innocence and onus and standard of proof – Where trial judge later stated that failure of appellant to give sworn evidence "may make it easier" to assess complainant's credibility ("impugned statement") – Where neither prosecutor nor defence counsel applied for redirection arising from making of impugned statement – Whether impugned statement occasioned miscarriage of justice because its effect was to invite jury to reason to appellant's guilt from his exercise of right to silence – Whether influence of impugned statement weakened because it was comment not direction of law – Whether failure of either counsel to seek redirection weighed against conclusion that integrity of trial compromised – Whether impugned statement ambiguous such that there was no reasonable possibility jury would have felt it open to reason impermissibly.

Words and phrases – "absence of evidence", "contradictory instruction", "directions of law", "exercise of the right to silence", "false process of reasoning", "irregularity", "judicial observation on the facts", "miscarriage of justice", "onus of proof", "presumption of innocence",…

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: [2020] HCAB 9
Decision Date

CaseChat Overview and Summary

GBF v The Queen is a criminal case where the appellant was convicted of multiple sexual offences against his half-sister when she was a minor. The High Court of Australia had to decide whether the trial judge's comment on the appellant's exercise of the right to silence constituted a miscarriage of justice. The Court found that the comment did not occasion a miscarriage of justice, and the appeal was allowed. Calidad Pty Ltd & Ors v Seiko Epson Corporation & Anor is a patent case where the High Court had to determine whether the doctrine of exhaustion of rights and the implied licence doctrine should apply to modified printer ink cartridges. The Court held that the doctrine of exhaustion of rights and the implied licence doctrine should not apply, and the appeal was allowed with costs. Deguisa & Anor v Lynn & Ors is a real property case where the High Court had to decide whether the appellants were notified of restrictive covenants in accordance with the Real Property Act 1886 (SA). The Court found that the appellants were not notified, and the appeal was allowed with costs.

Orders