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High Court judgments

High Court judgments

By Andrew Yuile

Courts Judgment 


Native title Compensation for impairment of native title rights and interests In Northern Territory v Mr A Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (13 March 2019) the High Court considered the proper amount payable in compensation for the extinguishment of certain native title rights. The Ngaliwurru and Nungali People (the “Claim Group”) held non-exclusive native title rights over land in the Northern Territory that had been extinguished by acts done by the Northern Territory. That gave rise to an entitlement to compensation under s51 of the Native Title Act 1993 (Cth). The question in this case was the proper method of determining the compensation payable. At trial, the Claim Group was awarded compensation assessed at 80 per cent of the unencumbered freehold value of the land, plus simple interest, plus compensation for non-economic (cultural) loss of $1.3 million. On appeal, the Full Court varied the trial judge’s assessment to award the Claim Group 65 per cent of the unencumbered freehold value of the land but otherwise affirmed the trial judge’s decision. The High Court held that the first step is to determine the value of the particular native title rights held and to deduct from the full exclusive native title rights a percentage that represented the comparative limitations of the Claim Group’s interests, then to apply that reduction in percentage value to the full freehold value of the land as a proxy for full exclusive native title. In this case, that percentage equated to no more than 50 per cent of the freehold value. The Court also upheld the award of simple as opposed to compound interest, and upheld the award for cultural loss, also commenting on the factors to be considered in determining that award. Kiefel CJ, Bell, Keane, Nettle and Gordon JJ jointly; Gageler J separately concurring except as to the method for determining the economic value of the Claim Group’s interests; Edelman J separately concurring except as to the method of valuation of cultural loss. Appeals from the Full Federal Court allowed in part. Criminal law Statutory interpretation – meaning of “destroys or damages” In Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8 (13 March 2019) the High Court held that alteration to the physical integrity of a thing is required to show that the thing was damaged. The appellant was a protestor who climbed into a ship loader at a coal terminal and locked himself in. The appellant put the ship loader in a position where he was at risk of harm. The ship loader was shut down because of safety concerns and remained inoperable until he was removed. The appellant was convicted of intentionally or recklessly destroying or damaging property belonging to another, contrary to s195(1)(a) of the Crimes Act 1900 (NSW). The offence was particularised as doing damage to property causing the temporary impairment of the working machinery of the ship loader. The appellant appealed his conviction to the District Court of New South Wales, which stated a case to the Court of Criminal Appeal asking whether the facts could support a finding of guilt under s195(1)(a). The Court said that they could. In the High Court, a majority held that “damage to property within the meaning of s195(1) of the Crimes Act requires proof that the defendant’s act or omission has occasioned some alteration to the physical integrity of the property, even if only temporarily”. The question stated in this case had to be answered no and the appellant’s conviction quashed. Kiefel CJ, Bell, Keane and Gordon JJ jointly; Nettle J dissenting. Appeal from the Court of Criminal Appeal (NSW) allowed. Criminal law Jury directions – Prasad directions In Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 (20 March 2019) the High Court held that jury directions commonly known as Prasad directions are contrary to law and should not be administered. The case concerned an accused who was arraigned on an indictment of murder. A plea of not guilty was entered and a jury empanelled. At the end of the Crown case, the defence sought a Prasad direction, which allows for the jury to be informed that they are allowed at any time after the close of the prosecution case to return a verdict of not guilty without hearing more. Over the Crown’s objection, a lengthy Prasad direction was given. The jury considered the direction but asked to hear more. After the close of the defence case, but before final addresses, the jury was reminded of the direction. After considering again, the jury returned a verdict of not guilty without hearing more. The Director of Public Prosecutions referred a point of law to the Court of Appeal, asking whether Prasad directions are contrary to law and should not be administered. A majority of the Court of Appeal held that there was no reason in principle to hold that such directions should not be given. The High Court unanimously upheld the appeal. The Court held that a jury does not have a common law right to return a verdict of not guilty any time after the close of the Crown case. To give a Prasad direction was inconsistent with the division of functions between the judge and the jury (for example, because it might suggest to the jury that the judge considers acquittal to be appropriate, or because it leaves the jury without the benefit of the prosecution’s final address and the judge’s summing up). It is a matter for the jury to decide if guilt beyond reasonable doubt has been established, assuming that the evidence at its highest is capable of sustaining a conviction. A jury cannot make that decision until the end of the case. The Court therefore held that Prasad directions are contrary to law and should not be administered. Appeal from the Court of Appeal (Vic) allowed. Criminal law Jury directions – lies in complainant’s evidence – application of the proviso In OKS v Western Australia [2019] HCA 10 (20 March 2019) the appellant had been charged with four counts of indecently dealing with a child under 13. The trial took place nearly 20 years after the alleged offending. The central issue at trial was the credibility and reliability of the complainant’s evidence. The complainant admitted to telling lies to police in her earlier accounts of events, and further lies were asserted by the defence. In the course of summing up, the trial judge directed the jury that they should not reason that just because the complainant had been shown to have lied, all of her evidence was dishonest and could not be relied on. The jury returned verdicts of guilty on one count and not guilty on the other (two counts were withdrawn). On appeal the Court of Appeal held that the direction given was a wrong decision on a question of law but held that the conviction should stand because there had not been a substantial miscarriage of justice (the proviso). The High Court unanimously upheld the appeal. The Court held that it was open to the jury, if it accepted that the complainant had lied, not to accept the balance of her evidence as making out the offences. The direction effectively prevented the jury from reasoning in that way or was apt to lessen the weight that the jury might properly give to a finding about the complainant’s lies. The jury’s assessment of her credibility was wrongly circumscribed. On the proviso, the High Court said that the only gauge of sufficiency of the evidence for the Court of Appeal was the verdict. But it could not be assumed that the misdirection had no effect on that verdict, in circumstances where the misdirection precluded the jury from adopting a process of reasoning, favourable to the appellant, that was open to it. The conviction had to be quashed and a new trial ordered. Bell, Keane, Nettle and Gordon JJ jointly; Edelman J separately concurring. Appeal from the Supreme Court (WA) allowed. Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email ayuile@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.

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