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High Court judgments

Every Issue

Cite as: Cite as: March 2012 86 (03) LIJ, p.56

Courts

Abuse of process – prosecution of person brought to Australia after illegal expulsion from Solomon Islands with assistance of Australian authorities

In Moti v Q [2011] HCA 50 (7 December 2011) the High Court ordered that the further prosecution of charges of child molestation against M be permanently stayed where he had been brought to Australia following his illegal expulsion from the Solomon Islands that was achieved with the assistance of Australian government officials: French CJ with Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J. Appeal allowed.

Courts

Practice – procedure on suggestion judge is biased – contempt of court

In Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 (1 December 2011) the High Court considered when a judge could be said to be biased for having allowed an ex parte application by a party to a proceeding. The High Court concluded there was not a reasonable apprehension of bias. The Court considered whether a party waived the right to complain about the bias by allowing the trial to proceed but did not decide the issue. The Court also concluded that in the circumstances it was not an abuse of process for a party that had brought arbitration proceedings in London alleging breach of fiduciary duties by a solicitor to commence proceedings in a court in Australia on the same issue: Gummow ACJ with Hayne, Crennan and Bell JJ; Heydon J sim.

Criminal law

Crown appeal against sentence

In Green v Q [2011] HCA 49 (6 December 2011) the High Court allowed an appeal against orders made in a Crown appeal against sentence where a NSW Court of Appeal of five members increased the sentence imposed. Consideration of the role of Crown appeals against sentence and whether the orders made on appeal created disparity in the sentences imposed on other offenders: French CJ with Crennan, Kiefel JJ; contra Heydon J and Bell J. Appeals allowed.

Criminal law

Trial – jury misdirection in group criminal activity

In Handlen v Q; Paddison v Q [2011] HCA 51 (8 December 2011) the High Court allowed an appeal where the jury was misdirected consequent on the mistaken assumption by the parties and the trial judge that guilt of drug importation offences could be established by proof the accused were parties to a joint criminal enterprise to bring the drugs into Australia. The High Court concluded, contrary to the conclusion of the Queensland Court of Criminal Appeal that a miscarriage of justice had occurred and the guilt of the appellants was not inevitable. Appeals allowed: French CJ, Gummow, Hayne, Crennan, Kiefel with Bell JJ; contra Heydon J.

Evidence

Expert evidence – causation of mesothelioma from exposure to asbestos

In Amaca Pty Ltd v Booth [2011] HCA 53 (14 December 2011) the High Court considered the difference between the “risk” of harm and the “cause” of the harm and when causation of an event could be established by reference to increased risk of it. The Court concluded the Dust Diseases Tribunal of NSW had not erred in finding the malignant pleural mesothelioma that B suffered from had been contracted by exposure to asbestos in brake linings he had worked on as a motor mechanic with the appellant employers: French CJ; Gummow, Hayne, Crennan JJ; contra Heydon J. The Court concluded that the finding that all exposure to chrysotile asbestos other than trivial exposure materially contributes to mesothelioma was supported by the evidence led by B. Appeal against decision of NSW Court of Appeal dismissed.

Evidence

Privilege – whether common law recognises spouse privilege

In Australian Crime Commission v Stoddart [2011] HCA 47 (30 November 2011) the High Court concluded that a spouse was not entitled to refuse to answer questions put in an examination by the Australian Crime Commission by reason of any privilege at common law protecting communications between spouses: French CJ with Gummow J; Crennan, Kiefel and Bell JJ; contra Heydon J. Appeal allowed.

Migration

Visas – criterion

In Shahi v Minister for Immigration and Citizenship [2011] HCA 52 (14 December 2011) the High Court concluded a delegate of the minister made a jurisdictional error in concluding a person had ceased to be a member of a family unit for the purposes of the Migration Regulations where he had turned 18 between the time the application was lodged and when it was decided: French CJ, Gummow, Hayne, Bell JJ; contra Heydon J.




THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email tvhurley@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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