Kalbasi v The State of Western Australia [2018] HCA 7: proviso and substantial miscarriage of justice

By Seppy Pour

On 14 March 2017, the High Court handed down its decision in Kalbasi v Western Australia [2018] HCA 7 and explored the application of the ‘proviso’ by an appellate court. By a 4:3 majority, the High Court held that the trial judge’s misdirection did not occasion a substantial miscarriage of justice.

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Irwin v The Queen [2018] HCA 8

By Seppy Pour

On 14 March 2018, the High Court handed down its decision in Irwin v The Queen. The case considered whether there existed any difference between what an ordinary person “could” and “would” reasonably foresee in the context of the potential for injury to a victim.

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Frits George Van Beelen v The Queen [2017] HCA 48

By Seppy Pour

On 8 November 2017, the High Court handed down its decision in Van Beelen v The Queen [2017] HCA 48. The case concerned the assessment of expert evidence that was obtained subsequent to the trial and whether this evidence was “fresh”, “compelling”, “substantial”, and in the “interests of justice”.

Background

In 1973, the appellant was convicted of the murder of a 15-year-old school girl at Taperoo Beach in South Australia. The prosecution case was circumstantial and relied upon evidence that the appellant, given the time of death, was one of the few male persons with the opportunity to have committed the offence.

At trial, a pathologist who conducted the autopsy gave evidence that the deceased must have died by 4:30pm based on the contents of her stomach. This was disputed by defence. There was unchallenged evidence that the appellant left the beach not later than 4:30pm. Continue reading “Frits George Van Beelen v The Queen [2017] HCA 48”

The Queen v Holliday [2017] HCA 35 (“R v Holliday”)

By Thomas Buckingham

Holliday was charged with, inter alia, inciting the kidnapping of two witnesses in relation to crimes for which he was in custody awaiting sentence. He was tried on indictment in the ACT Supreme Court before a Judge and Jury. The Crown case at trial was that while Holliday was in jail he urged a fellow inmate to procure another or others to carry out his plan for the witnesses to be kidnapped and forced to read pre-prepared statements on camera, recanting their evidence against him. The fellow inmate did not follow-through, instead reporting Holliday to the authorities. Holliday was ultimately convicted of one count of attempting to pervert the course of justice and two counts of inciting kidnapping.

Under s 47 of the ACT Criminal Code a person commits the offence of Continue reading “The Queen v Holliday [2017] HCA 35 (“R v Holliday”)”

The Queen v Dookheea [2017] HCA 36

By Nicholas Morrissey 

In The Queen v Dookheea [2017] HCA 36, the High Court considered whether it was an error of law productive of a substantial miscarriage of justice for the trial judge in a murder trial to direct the jury that the Crown did not have to satisfy the jury of the accused’s guilt ‘beyond any doubt, but beyond reasonable doubt.’ The judgment doesn’t break any new ground, but acts as a reminder of the wise course of action in directing a jury on the criminal standard of proof. Continue reading “The Queen v Dookheea [2017] HCA 36”

An Act that is ‘always speaking’: Aubrey v The Queen [2017] HCA 18 (10 May 2017)

‘Always speaking’ approach to statutory construction and contemporary understandings of GBH

By Suzanne Martinez

Introduction

The High Court, by a 4:1 majority, dismissed the appellant’s appeal against a decision of the NSWCCA. The majority clarified the meaning of ‘inflict grievous bodily harm’ in a historical provision of the Crimes Act 1900 (NSW) (Crimes Act) that applied at the time of offending in 2004. Further, it was held that infliction of grievous bodily harm (GBH) did not require direct or indirect application of force and may be inflicted by the transmission of sexual disease. In 2007 and 2012 – after the offences were committed – the relevant provisions of the Crimes Act were substantially amended, and now similarly define GBH to include transmission of grievous bodily disease. Therefore, you ask, what contemporary relevance does this decision have?

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It is a matter of interpretation: Pickering v The Queen [2017] HCA 17 (3 May 2017)

By Rhanda Taouk

In Pickering v The Queen [2017] HCA 17 the High Court, in two separate judgments, unanimously allowed an appeal from a decision of the Court of Appeal of the Supreme Court of Queensland. The High Court held that the appellant was occasioned a miscarriage of justice as the trial judge had failed to leave to the jury the possible application of s 31(1)(c) of the Criminal Code (Q) (‘the Code’). Section 31(1) enables an accused in certain circumstances to be exculpated for an act or omission for which they would otherwise be criminally responsible. Section 31(2) provides exceptions to s 31(1).

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