Two new judgments were handed down on Wednesday 9 September. 

Western Australia’s controversial High Risk Serious Offenders Act 2020 was scrutinised by the court in Garlett v Western Australia [2022] HCA 30.  Mr Garlett, a young Indigenous man, was nearing completion of a prison sentence for robbery in company committed in 2017.  The State applied for a restriction order (in the form of continuing detention) on the basis that Mr Garlett was a “high risk offender” due to the 2017 offending, supported by evidence of his previous convictions as a juvenile and abuse of alcohol and methylamphetamine.  Mr Garlett challenged the validity of the Act to the extent that it was repugnant to the Supreme Court of Western Australia’s role as a repository of Commonwealth judicial power.  Corby J rejected that argument and Mr Garlett appealed to the Court of Appeal.  Gordon J ordered removal of the pending constitutional ground into the High Court, which affirmed Corboy J by majority.  Kiefel CJ, Keane and Steward JJ (with whom Edelman and Gleeson JJ substantially agreed in separate judgments) held that the function of the State Supreme Court under the High Risk Serious Offenders Act was not incompatible with the court’s role as a repository of the judicial power of the Commonwealth, its processes not being dictated by the executive or legislature, but allowed to follow established judicial procedures of proof and evaluative judgment as to whether a restriction order is appropriate to the Act’s purpose of public protection.

The majority also noted that the provisions of the Act are indistinguishable from similar protective provisions upheld in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 and Minister for Home Affairs v Benbrika (2021) 272 CLR 68; 95 ALJR 166.  Gageler and Gordon JJ in dissenting judgments distinguished Fardon and Benbrika, pointing out that the protective provisions in those cases were aimed at far more heinous offences than robbery, for which the Criminal Code (WA), s 392, prescribes a range of penalties dependent on the seriousness of the particular case.  In their Honours’ view the fact that the impugned provisions extended so far, and in particular to Mr Garlett’s relatively minor 2017 offending, meant that the Act was punitive rather than protective, and undermined the constitutional position of the Supreme Court.

Stephens v The Queen [2022] HCA 31; 96 ALJR 871 concerned the practice of charging historical sexual offences where statutory amendments (especially with respect to penalty) occur during the charge period.  Mr Stephens was charged with multiple offences, some of them involving alternative counts owing to uncertainty as to when they were alleged to have occurred.  Two days after his first arraignment, the Crimes Act 1900 (NSW), s 80AF commenced operation.  The Crown was granted leave to amend the indictment taking the effect of s 80F into account and Mr Stephens was arraigned a second time, again pleading not guilty.  He was subsequently convicted on 14 counts, including the four that had been amended.  He appealed to the NSW Court of Criminal Appeal, which held by majority that s 80AF applied retroactively to trials that had already commenced.  It accordingly upheld convictions on three of the four amended counts but quashed the conviction on the fourth because it was amended after empanelment of the jury.  A majority of the High Court allowed Mr Stephens’s appeal.  Keane, Gordon, Edelman and Gleeson JJ held that while s 80AF is intended to have some retroactive operation, there is no indication that it was meant to change the law for extant proceedings, including those commenced before the section came into force, where forensic decisions may have been made in reliance on the previous law.  In Mr Stephens’s case the section came into force after his trial commenced with the entry of his pleas to the original indictment.

Before adjourning on 9 September, the Chief Justice remarked that

“The handing down of these judgments is likely to be the last occasion on which we sit as a Full Court with Justice Keane before his Honour’s retirement on 16 October 2022. …  It was said at his swearing-in ceremony that Justice Keane was known for his powerful intellect and his industry.  That is undoubtedly true, and this Court has benefitted from those abilities, as well as his Honour’s breadth of legal knowledge and his adherence to judicial method and to legal principle. …  We shall miss our discussions with him and his good humour.  The Court thanks Justice Keane for his valuable service and wishes him and his wife, Dr Shelley Keane, well for the future.”  

It was subsequently announced that his Honour will be succeeded by the Honourable Justice Jayne Margaret Jagot of the Federal Court.

The High Court resumed on 10 October.