Decided on 3 November, Hamilton (a pseudonym) v The Queen [2021] HCA 33; (2021) 95 ALJR 894, concerned multiple charges of child sexual abuse involving three victims.  The appellant elected not to have separate trials, wishing to put forward a case that the charges were fabricated to give his wife an advantage in family law proceedings.  After being convicted on all counts the appellant sought leave to appeal to the Supreme Court of New South Wales (Court of Criminal Appeal) on the grounds that the jury must have engaged in impermissible tendency reasoning and had not been properly directed by the trial judge as to the use of each child’s evidence.  The Court of Criminal Appeal refused leave and a majority of the High Court dismissed a further appeal, holding that there is no absolute proposition in law that a failure to give an anti-tendency direction always constitutes a miscarriage of justice in cases where multiple counts of sexual offences involving similar fact evidence are tried together.  Their Honours further held that forensic decisions made by the appellant’s trial counsel did not bring about a miscarriage of justice in the circumstances of the case.

In a unanimous judgment also handed down on 3 November, the court held in Addy v Federal Commissioner of Taxation [2021] HCA 34; (2021) 95 ALJR 911 that the flat-rate “backpacker tax” did not apply to assessable income earned in 2017 by a United Kingdom national, resident in Australia under a working holiday visa.  This was because a more burdensome taxation requirement was imposed on the appellant than that imposed on an Australian national in the same circumstances, contrary to Art 25(1) of the Convention for the avoidance of double taxation made between the Australian and UK governments.

On 10 November, the court in Sunland Group Ltd v Gold Coast City Council [2021] HCA 35; (2021) 95 ALJR 922; 249 LGERA 312 unanimously agreed with the Queensland Court of Appeal that infrastructure contributions for a long-proposed development should not be collected under and in accordance with a preliminary approval granted by the respondent council years previously, under repealed legislation imposing a lower rate.  Although the preliminary approval contained conditions under a heading “Infrastructure Charges” the court held that there had been no actual exercise of power conferred on the council by the previous legislation.

Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937, also decided on 10 November, concerned the application of the rule in Browne v Dunn to criminal trials.  The appellant was tried and convicted of 11 counts of sexual assault on two victims.  He gave evidence at trial, seeking to establish a defence of consent although the alleged facts underpinning the defence were not put to the victims in cross-examination by his counsel.  The High Court held on appeal that although the rule in Browne v Dunn had its origins in non-accusatorial civil procedure, there is no reason in principle why it should not be applied in criminal trials – although difficulties will arise where it is not observed, in particular how the jury is to be directed to make use of the emerging evidence. 

Gageler J’s separate judgment contains a useful discussion on the meaning of the term “miscarriage of justice” in the Criminal Appeal Act 1912 (NSW), s 6(1) and other standard-form criminal appeals legislation.

Hofer was recently distinguished by the court in Orreal v The Queen [2021] HCA 44 (to be reported in the January 2022 issue of the ALJR).

In Park v The Queen [2021] HCA 37; (2021) 95 ALJR 968, (also handed down on 10 November) the court considered the Crimes (Sentencing Procedure) Act 1999 (NSW), s 22(1), which allows a sentencing court to give a discount for a guilty plea.  The High Court held that any jurisdictional limit on the sentencing court is to be applied only after determining the appropriate sentence for the offence, so that where the sentencing court was limited to a maximum sentence of two years imprisonment for an offence that carried a maximum penalty of five, it was not erroneous, when forming an aggregate sentence, to give an indicative sentence of two years and eight months before applying a 25% discount for the guilty plea.

R v Rolfe [2021] HCA 38; (2021) 95 ALJR 975, also delivered on 10 November, concerned police immunity, and in particular the scope of protection from liability given to police for acts done in good faith under the Police Administration Act 1978 (NT), s 148B.  The court unanimously held that s 148B applies to functions performed by police under the common law (via s 25) and the power of arrest in s 124, but not to the non-specific “core functions” listed in s 5(2).

Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd [2021] HCA 39, delivered on 8 December, concerned an access regime for a declared service at the port of Newcastle NSW under the Competition and Consumer Act 2010 (Cth), Pt IIIA.  The court held that a person wanting access to a declared service is a “third party” for the purposes of that Part: such a person had a right to negotiate, and failing agreement to arbitrate the amount of the navigation service charge applicable to the access regime.  The first respondent, a coal mining company exporting its product through the port, often via fob contracts by vessels owned by their customer was held to be a “third party” on those terms.

Turning to another topic, it has long been held that if someone’s car is damaged in a traffic accident as a result of another’s negligence, the owner should be able, if the use of a vehicle is needed, to recover as damages the hire of a replacement until the damaged vehicle is repaired.  However courts were divided as to whether that meant that the plaintiff could recover the hire of an identical vehicle or was confined to that of a basic model.  On 8 December the court handed down judgment in Arsalan v Rixon and Nguyen v Cassim [2021] HCA 40; (2021) 96 ALJR 1, which has at last settled that issue.  The controversy in the two appeals from the New South Wales Court of Appeal was whether the plaintiffs were entitled to recover foregone “intangible benefits” such as loss of amenity or enjoyment of the use of their prestige cars.  The court unanimously held that they could, stating that “loss of amenity of use of a chattel should be recognised as a head of damage and the loose concept of ‘need’ should be eschewed.”

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 96 ALJR 13, also decided on 8 December, considered whether the Minister was permitted to take his or her personal or specialised knowledge into account when determining whether to revoke or cancel a visa for “another reason” pursuant to the Migration Act 1958 (Cth), s 501CA(4)(b)(ii).  In the absence of objective evidentiary material the Minister made certain findings of fact in support of a decision to cancel the respondent’s visa and have him deported to Samoa at the conclusion of his prison sentence.  The court held that the Minister is entitled to make findings based on personal or specialised knowledge, including the accumulated knowledge of the Minister’s department, or by reference to that which is commonly known.

In Bell v Tasmania [2021] HCA 42; (2021) 95 ALJR 22, a Full Bench decision delivered on 8 December, the court considered the defence of honest and reasonable mistake of fact contained in the Criminal Code 1924 (Tas), s 14, in the context of supplying a controlled drug to a minor.  The appellant supplied methylamphetamine to a 15-year-old, believing her to be aged 20.  Blow CJ at first instance and the Tasmanian Court of Criminal Appeal held that a defence of honest and reasonable mistake of fact as to age was not available since, even if the appellant was mistaken as to supplying a child, he could still have committed an offence of supplying “another person” contrary to the Misuse of Drugs Act 2001 (Tas), s 26.  The High Court unanimously agreed, holding that for the defence to be available, an accused person's act, on the facts as honestly and reasonably believed, must render the accused innocent of any offence.  An act is only “innocent” in the circumstances if it is not a criminal offence at all.

Finally on 8 December, in Deputy Commissioner of Taxation v Huang [2021] HCA 43; (2021) 96 ALJR 43, the court considered the power to make freezing orders over foreign assets pursuant to the Federal Court Rules 2011 (Cth), r 7.32.  The court held that the power to make a worldwide freezing order is not constrained by any precondition that there be proof of realistic possibility of enforcing a judgment debt against assets in each foreign jurisdiction to which the proposed order relates.  Accordingly the Federal Court had power to make freezing orders in respect of the respondent’s assets in Hong Kong and the People’s Republic of China, even though there was no guarantee of enforcing judgment in those jurisdictions.

The court is in recess for the summer vacation until Monday 7 February. The first judgments of 2022 will be handed down on the morning of Wednesday 9 February, when the Full Court will publish reasons in the matters of Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (P5/2021) and ZG Operations Australia Pty Ltd v Jamsek (S27/2021), both of them on appeal from the Full Court of the Federal Court of Australia.