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High Court judgments

Every Issue

Cite as: October 2012 86 (10) LIJ, p.54

Criminal law

Evidence – admissions by co-accused that benefit accused

In Baker v Q [2012] HCA 27 (15 August 2012) B and a minor were tried for the murder of S who died as a result of a fall through a window after a fight. The minor made admissions to police and others that could be taken as admissions for causing the fall. Neither B nor the minor gave evidence. The trial judge ruled that under the common law the admissions made by the minor were evidence in his case only and not that of B. (The trial preceded the Evidence Act 2008(Vic)). B was convicted. The minor was acquitted. B’s appeal to the Court of Appeal (Vic) was dismissed as was his appeal to the High Court: French CJ, Gummow, Hayne, Crennan, Kiefel, Bell JJ; sim Heydon J. The Court concluded no miscarriage of justice had occurred and there was no occasion to extend the exceptions to the hearsay rule to allow third party confession to be considered. Appeal dismissed.

Criminal law

Evidence – evidential burden on accused seeking to rely on defence or exception

In Q v Khazal [2012] HCA 26 (19 August 2012) K had an interest in the Muslim faith. He had worked as a journalist, author and academic. He assembled extracts from the internet concerning “jihad” that referred to targets for assassination and the like and added some elements that were his own work and made an e-book. In 2008 he was convicted by a jury on a charge of “making a document connected with the assistance in a terrorist act knowing of that connection” contrary to s101.5 of the Criminal Code (Cth). By s101.5(5) it was a defence if the work was not intended to facilitate preparation for, engagement of a person in, or assistance in, a terrorist act. By s13.3(3) the Code imposed an evidential burden on any person seeking to rely on an exception or defence in the Code. K did not give evidence but the jury was told of his interests as a scholar. K’s conviction was quashed and a re-trial ordered by the Court of Appeal (NSW). This court concluded the evidence as to K’s past interests as an academic etc discharged the evidential burden in s13.3(3) of the Code and K had established the defence created by s101.5(5). The appeal by the prosecution was allowed by the High Court: French CJ; Gummow, Crennan with Bell JJ; Heydon J. The plurality considered the contents of the work did not permit inferences to be drawn from evidence of K’s past lawful work. The Court rejected a contention made by K that there had been a misdirection as to whether the document was “not connected with” a specific terrorist act. Appeal from Court of Appeal allowed. Appeal to that court dismissed.

Criminal law

Procedure – change in prosecution case midway through trial – whether fundamental failure of process

In Patel v Q [2012] HCA 29 (24 August 2012) P was a general surgeon practising in Bundaberg in Queensland. He was convicted of three counts of manslaughter and one of grievous bodily harm arising from unsuccessful surgery. The prosecution opened the trial contending that P was incompetent in recommending surgery, conducting the surgery, and the post-operative treatment that he supervised. The prosecution contended that the standard of care proved by P was so low that it breached s288 of the Criminal Code (Qld). On day 43 of the trial the prosecution gave further particulars that focused solely on whether P had been incompetent in advising whether the surgical treatment should have been undertaken. The trial judge refused an application that the jury be discharged. P’s appeal against conviction to the Court of Appeal was dismissed. His appeal to the High Court was allowed (French CJ, Hayne, Kiefel, Bell JJ jointly; Heydon J sim). The plurality concluded that the change of direction in the prosecution case rendered much of the preceding evidence as to malpractice in the operating theatre and afterwards irrelevant but highly prejudicial. The Court concluded s288 of the Criminal Code was not limited to the conduct of surgery and applied to the anterior decision to undertake it. The Court concluded the change in prosecution case meant that so much prejudicial evidence was in the minds of the jury that the irregularity went to the root of the proceeding and the proviso in s688E(1A) of the Criminal Code (that protected decisions absent a substantial miscarriage of justice) was not applicable. Appeal allowed. Orders of Court of Appeal set aside and in lieu thereof order that conviction quashed.


Offence for which extradition sought not a crime at date of offence

In Minister for Home Affairs v Zantai [2012] HCA 28 (15 August 2012) the High Court concluded the Extradition Act 1988 (Cth) and the extradition treaty between Australia and Hungary did not authorise extradition to Hungary where the relevant offence of “war crime” (alleged in relation to World War II) was not a crime that existed in the requesting country when the alleged events occurred: French CJ; Gummow, Crennan, Kiefel, Bell JJ; contra Heydon J. Appeal dismissed.

THOMAS HURLEY is a Victorian barrister, ph 9225 7034, email The full version of these judgments can be found at


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