Proctor : May 2018
38 PROCTOR | May 2018 High Court and Federal Court casenotes High Court Constitutional law – ‘office of profit under the Crown’ – section 44(iv) of the Constitution In Re Lambie  HCA 6 (14 March 2018) the High Court considered the meaning of the phrase “under the Crown” in s44(iv) of the Constitution in deciding whether Mr Steven Martin was incapable of sitting or being chosen as a senator. In December 2017, the High Court answered questions referred to it, finding that Ms Jacqui Lambie was incapable of being chosen as a senator. Mr Martin was identified by a special count as a candidate who could be elected in her place. Mr Martin was, at all relevant times, the mayor and a councillor of the Devonport City Council, which is established by the Local Government Act 1993 (Tas). The question for the court was whether those positions were “offices of profit under the Crown” within s44(iv). It was accepted that they were “offices of profit” and that the “Crown” in s44(iv) meant the “executive government” of the Commonwealth or a state. The decision turned on the meaning of “under” and the relationship required between the executive and the office. A majority of the court held that s44(iv) seeks to avoid a conflict between a parliamentary member’s duties to the House and a pecuniary interest allowing for executive influence over the performance of parliamentary duties. Relevantly, an office would be held “under” the Crown if it was held at the will of the executive or the receipt of profit from the office depended on the will of the executive. In this case, Mr Martin’s positions depended on the Local Government Act and the executive did not have effective control over Mr Martin holding or profiting from them. The offices were, therefore, not “under the Crown”. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ jointly; Edelman J separately concurring for different reasons. Answers to questions referred given. Criminal law – appeal against conviction – application of the ‘proviso’ – whether ‘substantial miscarriage of justice’ occurred In Kalbasi v Western Australia  HCA 7 (14 March 2018) the High Court considered the ‘proviso’ that, notwithstanding error, a court may dismiss an appeal against conviction if “no substantial miscarriage of justice has occurred”. The appellant was convicted of attempting to possess 4.981kg of a prohibited drug with intent to sell or supply to another, contrary to the Misuse of Drugs Act 1981 (WA) (MDA). A consignment of methylamphetamine was replaced with rock salt by police. A person known to the appellant collected the consignment. The appellant was present when the ‘drugs’ were unpacked and the appellant’s DNA was found in gloves used to cut drugs in the premises. The issue at trial was whether the appellant was ‘in possession’ of the ‘drugs’. Section 11 of the MDA deems that a person in possession of more than 2g of methylamphetamine, subject to proof to the contrary, possesses the drug with intent to sell or supply. However, prior authority held that s11 does not apply to the charge of attempted possession of a prohibited drug. At trial the judge and counsel assumed that s11 applied. The jury was directed accordingly on the issue of intention to sell or supply. On appeal the Crown admitted the misdirection but argued that the proviso applied. The Court of Appeal agreed and dismissed the appeal. In the High Court, the majority declined to re-open the principles governing the proviso stated in Weiss v The Queen (2005) 224 CLR 300. The majority also rejected the appellant’s arguments about the way the trial would have been run or the way the jury might have decided the case if the misdirection had not occurred. Their Honours held that there was nothing in the evidence or the way the appellant ran his case that left open the possibility that the jury could find he was in possession of less than the whole of the ‘drugs’ with a view to purchasing an amount for his own use. The Court of Appeal was correct to hold that proof beyond reasonable doubt that the appellant had attempted to possess the ‘drugs’ compelled the conclusion that he intended to sell or supply them to another. Therefore, the misdirection did not occasion a substantial miscarriage of justice. Kiefel CJ, Bell, Keane and Gordon JJ jointly; Gageler J, Nettle J and Edelman J each separately dissenting. Appeal from the Court of Appeal (WA) dismissed. Criminal law – verdicts unreasonable or unsupportable on evidence – criminal responsibility and foreseeability Irwin v The Queen  HCA 8 (14 March 2018) concerned whether the jury’s verdict was unreasonable or incapable of being supported by the evidence. The appellant was convicted of one count of unlawfully doing grievous bodily harm and acquitted of one count of assault occasioning actual bodily harm. At trial, an issue was foreseeability. Section 23(1) of the Criminal Code (Qld) provides that a person is not criminally responsible for an event that the person does not intend or foresee as a possible consequence, and that an ordinary person would not reasonably foresee as a possible consequence. The appellant accepted that the judge’s directions on this point were correct, but argued that the jury could not rationally have excluded the possibility that an ordinary person in the appellant’s position would not reasonably have foreseen the possibility of an injury of the kind sustained by the complainant as a possible consequence of the appellant’s actions. In the High Court, the appellant argued that the Court of Appeal had applied an incorrect test of whether a reasonable person ‘could’ as opposed to ‘would’ have foreseen the outcome. The High Court held that there was a difference in meaning between those two words and the proper test was ‘would’. The Court of Appeal should not have expressed the test in terms of ‘could’. However, the jury had been properly directed and there was no reason to doubt that they had adhered to the directions or to doubt the reasonableness of the verdict they gave. Other alleged errors in the Court of Appeal’s approach were rejected. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ jointly. Appeal from the Court of Appeal (Qld) dismissed. Planning law – town planning – conditions on development – enforcement orders In Pike v Tighe  HCA 9 (14 March 2018) the High Court considered whether conditions on planning approvals run with the land and oblige successors in title to fulfil conditions that were not fulfilled by the original owner. The Townsville City Council (council) issued a planning approval over land allowing for it to be developed into two lots. One condition of the approval was that an easement had to be registered over lot 1 for the benefit of lot 2. Easements were created by the owner, but not in accordance with the condition. Nonetheless, the council approved the relevant survey plan and the easements were registered. The Tighes were later registered as owners of lot 1 and the Pikes were registered as owners of lot 2. The Pikes applied to the Land and Environment Court for a declaration that the development approval had been contravened and for an enforcement order requiring compliance with the condition. The Tighes argued that any development offence committed by a failure of the original owners to comply with a condition was the fault of the original owner, not the successor. At first instance, the judge granted relief, holding that the conditions in the approval ran with the land. The Court of Appeal overturned that decision. The case turned on the meaning of s245 of the Sustainable Planning Act 2009 (Qld) which stated that a development approval attaches to the land the subject of the application and binds the owner and any successors in title. The High Court held that s245 “expressly gives development conditions of a development approval the character of personal obligations capable of enduring in their effect beyond the completion of the development”. The approval and the conditions attach to the whole of the land, not just the lots. Because the condition had not been complied with, there had been a contravention of the Act. The enforcement order could therefore be made. Kiefel CJ, Bell, Keane, Gordon and Edelman JJ jointly. Appeal from the Court of Appeal (Qld) allowed. Andrew Yuile is a Victorian barrister, phone 03 9225 7222, email firstname.lastname@example.org. The full version of these judgments can be found at austlii.edu.au.