The High Court’s October sittings commenced on 10 October, with the first three judgments delivered on Wednesday 12 October 2022.

SDCV v Director-General of Security [2022] HCA 32; (2022) 96 ALJR 1002 (coram Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) held by majority that the Administrative Appeals Tribunal Act 1975 (Cth), s 46 is a valid law of the Commonwealth which does not cause practical injustice to a person appealing against an adverse security assessment and does not undermine the institutional integrity of the Federal Court as a statutory repository of Commonwealth judicial power.  When a person the subject of an adverse security assessment, who is unsuccessful on review before the Administrative Appeals Tribunal wishes to appeal on a question of law to the Federal Court, s 46(1) relevantly provides that all documents that were before the tribunal (including classified documents) are to be transmitted to the court and pursuant to s 46(2), any classified material is not to be disclosed except to the member or members of the court hearing the appeal and their staff.  It can, however be considered by the court.

BHP Group Ltd v Impiombato [2022] HCA 33; (2022) 96 ALJR 956 was an interlocutory appeal from the Federal Court in a shareholder class action.  The High Court unanimously rejected the appellant’s argument that the Federal Court of Australia Act 1976 (Cth), Pt IVA precludes non-residents from being classed as “group members” in representative proceedings.

Bosanac v Federal Commissioner of Taxation [2022] HCA 24; 96 ALJR 976 concerned the equitable presumptions of resulting trust and/or advancement in the context of matrimonial property.  The couple’s matrimonial home was held in the sole name of the wife, although it was purchased with moneys advanced to both of them and secured by mortgages over the home and other properties owned by the husband and wife individually.  The respondent Commissioner was a creditor of the husband and sought declarations before McKerracher J in the Federal Court to the effect that the wife held a half-interest in the home on a purchase price resulting trust for the husband.  The primary judge upheld the wife’s contention that she was the sole beneficial owner of the property by reason of the presumption of advancement, which had not been displaced on the evidence.  On appeal to the Full Court, Kenny, Davies and Thawley JJ set those orders aside and declared that the wife held the half-interest on trust for the husband, the presumption of advancement having been rebutted.  The High Court restored the primary judge’s orders, holding that the proper inference to be drawn from the facts was that the parties objectively intended that the wife be the sole beneficial owner of the property and that the husband was simply facilitating her acquisition of it.  The court declined the Commissioner’s invitation to declare that the presumption of advancement had ceased to be part of the law of Australia, stating that it was well entrenched in authority and its abolition was a matter for the legislature if considered appropriate to do so.

On 19 October the court delivered judgment in the matter of TL v The King [2022] HCA 35; (2022) 96 ALJR 1072.  The appellant was convicted of murdering his infant stepdaughter, who had died from a blunt force trauma late one night.  Three people including the appellant were present in the house in the course of the evening, although two of them left briefly to buy food.  At the appellant’s trial before the Supreme Court of New South Wales, the prosecutor led tendency evidence relating to the appellant’s earlier infliction of physical harm on the child, which the trial judge admitted.  Appeals against conviction and sentence were dismissed by the Court of Criminal Appeal which rejected the appellant’s argument that certain tendency evidence was irrelevant and refused leave to challenge the rest of it.  The High Court held that the trial judge was correct to have admitted all of the evidence but criticised the generality of the prosecution’s tendency notice and the reformulation of the alleged tendency during the course of the trial.  Referring to Hughes v The Queen (2017) 263 CLR 338, the court held that the threshold of “significant probative value” had been reached without the need for the “close similarity” contended for by the appellant.

In the November sittings, the court handed down only one judgment, Awad v The  Queen; Tambakakis v The Queen [2022] HCA 36; (2022) 96 ALJR 182.  Both appellants had been charged with attempting to possess a border-controlled substance (cocaine).  The prosecution was required to prove that both appellants had entered a van containing the supposed consignment of drugs.  Mr Awad did not give evidence in his own defence but Mr Tambakakis did.  He stated on oath that Mr Awad never entered the van and that he, Mr Tambakakis had thought that the shipment was one of steroids (which were not border-controlled).  In summing up to the jury the trial judge observed in relation to Mr Tambakakis’s evidence that an innocent person can do no more than give evidence in his own defence and submit himself to cross-examination but that “a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence”. This type of direction was common in Victoria until abolished by the Jury Directions Act 2015 (Vic), s 44J. The appellants were convicted and appealed to the Supreme Court of Victoria (Court of Appeal) which dismissed the appeals by majority.  The High Court on appeal held that the directions did involve a miscarriage of justice which infected both trials, being inconsistent and confusing, and Court of Appeal ought to have considered the whole of the record before reaching the conclusion that it did. In the circumstances that it did not, it should have concluded that there was a substantial miscarriage of justice and ordered new trials.

On 15 November the court, comprising Kiefel CJ, Gageler, Gordon, Edelman, Steward, Gleeson and Jagot JJ heard Stanley v Director of Public Prosecutions (NSW), on appeal from a five-member bench of the New South Wales Court of Criminal Appeal [(2021) 107 NSWLR 1; 294 A Crim R 305].  At the conclusion of submissions the court allowed the appeal by “at least a majority”.  Reasons will be delivered at a later date.

The last sittings for the year will commence on Monday 5 December.

At the date of writing, volume 96 of the Australian Law Journal Reports is completely up-to-date with published judgments.  The editors would like to take this opportunity to thank our reporters and Carolyn May, our unflappable and indefatigable production editor for making this happen.