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High Court Bulletin

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

[2018] HCAB 8 (24 October 2018)

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
Johnson v The Queen	Criminal Law
Rodi v The State of Western Australia	Criminal Law
Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited & Anor	Equity
ETA067 v The Republic of Nauru	Migration
WET052 v The Republic of Nauru	Migration
Nobarani v Mariconte (No 2)	Practice and Procedure
UBS AG v Scott Francis Tyne as Trustee of the Argot Trust	Practice and Procedure

3: Cases Reserved

Case	Title
Clubb v Edwards & Anor	Constitutional Law
Preston v Avery & Anor	Constitutional Law
Australian Securities & Investments Commission v Lewski & Anor; Australian Securities & Investments Commission v Wooldridge & Anor; Australian Securities & Investments Commission v Butler & Anor; Australian Securities & Investments Commission v Jaques & Anor; Australian Securities & Investments Commission v Clarke & Anor	Corporations Law
Grajewski v Director of Public Prosecutions (NSW)	Criminal Law

4: Original Jurisdiction

Case	Title
Unions NSW & Ors v State of New South Wales	Constitutional Law

5: Section 40 Removal

6: Special Leave Granted

7: Cases Not Proceeding or Vacated

2: Cases Handed Down

The following cases were handed down by the High Court of Australia during the October 2018 sittings.

Criminal Law

Johnson v The Queen

A9/2018: [2018] HCA 48

Judgment delivered: 17 October 2018

Coram: Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ

Catchwords:

Criminal law − Appeal against convictions − Where appellant convicted of five counts of sexual offending against single complainant being his sister − Where counts joined − Where s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − Where applications to have counts one and two tried separately and to prevent Crown from leading evidence of discreditable conduct against complainant dismissed − Where Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax and to show relationship between appellant and complainant − Where verdicts on counts one and three quashed on appeal − Whether evidence of appellant's other alleged sexual misconduct admissible on trial of each remaining count − Whether joinder occasioned miscarriage of justice.
Evidence − Criminal trial − Sexual offences − Propensity evidence − Admissibility − Where Crown relied on uncharged acts as relationship or context evidence − Where evidence of one uncharged act improperly admitted − Whether miscarriage of justice.
Words and phrases – "admissibility", "context evidence", "contextual use", "discreditable conduct evidence",…

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: [2018] HCAB 8
Decision Date

CaseChat Overview and Summary

Johnson v The Queen (Criminal Law) dealt with the admissibility of propensity evidence in a trial for sexual offences against a complainant. The appellant had been convicted of five counts of sexual offending against his sister. The counts were joined under s 34P of the Evidence Act 1929 (SA), which provided for the admission of discreditable conduct evidence for permissible use. The appellant's applications to have counts one and two tried separately and to prevent the Crown from leading evidence of discreditable conduct against the complainant were dismissed. The Court of Appeal quashed the verdicts on counts one and three and remitted the matter to the trial court for retrial of the remaining counts. The High Court dismissed the appeal, holding that the evidence of the appellant's other alleged sexual misconduct was admissible on the trial of each remaining count and that the joinder had not occasioned a miscarriage of justice.

In Rodi v The State of Western Australia (Criminal Law), the appellant was convicted of possession of a prohibited drug with intent to sell or supply it to another. An expert witness gave evidence at trial casting doubt on the credibility of the appellant's testimony. The expert witness had given evidence in earlier proceedings inconsistent with the evidence given in the appellant's proceedings. The earlier inconsistent evidence was not disclosed to the appellant at trial. The Court of Appeal of the Supreme Court of Western Australia admitted the expert witness's earlier inconsistent evidence as fresh evidence but determined that no miscarriage of justice had occurred. The High Court allowed the appeal, holding that the admission of the expert witness's earlier inconsistent evidence amounted to a miscarriage of justice.

In Ancient Order of Foresters in Victoria Friendly Society Limited v Lifeplan Australia Friendly Society Limited & Anor (Equity), the appellant was found to have knowingly assisted in breaches of fiduciary duty by the employees of the first respondent. The appellant then joined the first respondent. The primary judge found that the profits of the appellant's business were not a direct result of the appellant's knowing assistance. The High Court dismissed the appeal and allowed the cross-appeal, holding that an account of profits was not available and that the appellant was not obliged to account for the entire capital value of the business acquired.

In ETA067 v The Republic of Nauru (Migration), the appellant, a citizen of Iran, applied for refugee status in Nauru. The Secretary of the Department of Justice and Border Control determined that the appellant was not a refugee. The Refugee Status Review Tribunal affirmed the Secretary's determination. The Supreme Court of Nauru affirmed the Tribunal's decision. The High Court dismissed the appeal with costs, holding that the Tribunal did not fail to act according to the principles of natural justice, did not fail to assess the evidence provided by the appellant in relation to his claim to have a well-founded fear of persecution by reason of his political opinion, and did not fail to give the appellant an opportunity to comment on evidence concerning membership of a political party.

Orders