All posts by Legal Helpdesk Lawyers

Solicitor of the Supreme Court of NSW, Federal Court and High Court of Australia. Public Notary in the State of New South Wales.
LAW FIRM

Obergefell v Hodges, Director General of Department of Health 576 US (2015)

ON 26 JUNE 2015, the Supreme Court of the United States delivered Obergefell v Hodges, Director General of Department of Health 576 US (2015).

Click to access 14-556_3204.pdf

The petitioners successfully challenged the marriage laws in the US States of Michigan, Kentucky, Ohio and Tennessee which, like Australia, defined marriage as being between the union of one man and one woman. The US Supreme Court held that Fourteenth Amendment of the US Constitution required the States to licence the marriage of persons of the same sex whose marriage was lawfully licensed and performed in other States.

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Constitutional law, Human Rights, Property Law, United Kingdom

Magna Carta | 15 June 1215

ON THIS DAY in 1215, King James executed the Magna Carta at Runnymede. King James agreed to this document which limited the power of the Crown and granted the barons and citizens certain individual rights, freedoms, liberties and protections. The document laid the constitutional foundations for government under the rule of law.

http://bailii.austlii.edu.au/uk/legis/num_act/1215/magna__carta.html

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Criminal Law, Criminal Procedure, Evidence, Practice and Procedure, United States

Miranda v Arizona 384 US 436 | 13 June 1966

ON THIS DAY in 1966, the US Supreme Court delivered Miranda v Arizona 384 US 436 (1966).

http://supreme.justia.com/cases/federal/us/384/436/

The Court held that in order to protect the constitutional privilege against self incrimination under the 5th amendment of the US Constitution, an accused in custody must be informed of his or her right to remain silent; that anything he or she says may be used against him or her in court; and that he or she has the right to consult a lawyer who may present during any interrorgation.

The court held that the prosecution may not use statements of the accused whilst in custody unless the prosecution can show that they informed the accused of their right to silence and the right to a lawyer and that the accused understood this and voluntarily waved such rights in making such a statement.

Miranda warnings are typically phrased as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you?”

The rule in Miranda v Arizona is specific to the United States and does not apply in Australia. There is no 5th amendment privilege against self-incrimination, though the High Court of Australia has held that under the Australian common law, no inference may be drawn from an accused’s silence: Petty & Maiden v R [1991] HCA 34; (1991) 173 CLR 95 (5 September 1991).

http://www.austlii.edu.au/au/cases/cth/HCA/1991/34.html

See also: RPS v R [2000] HCA 3; 199 CLR 620; 168 ALR 729; 74 ALJR 449 (3 February 2000).

http://www.austlii.edu.au/au/cases/cth/HCA/2000/3.html

However, if an accused choses to answer some questions but not others, inferences may be drawn against the questions the accused did not answer.

In limited circumstances, some questions must be answered, such as in traffic matters. One must give their name and address if they are to receive bail.

The NSW Evidence Act 1995 when first enacted said that no adverse inference could be drawn from the exercise of the right to silence by the accused.  On 20 March 2013, the Act was amended so that the accused is cautioned with: “it may harm your defence if you fail to mention something now that you later rely on at trial”.

NSW law enforcement officers have traditionally given the following warning: “You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

Since the amendment of the Evidence Act, the NSW warning is: “You are not obliged to say or do anything unless you wish to do so. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say and do may be given in evidence. Do you understand?”

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Criminal Law, Criminal Procedure, Evidence, LAW FIRM, Practice and Procedure

Bunning v Cross [1978] HCA 22 | 14 June 1978

ON THIS DAY in 1978, the High Court of Australia delivered Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 (14 June 1978).

“Evidence – Illegally obtained – Statutory offence – Driving under influence of alcohol – Compulsory breath and blood tests – Grounds for requiring submission to test – Grounds not satisfied – Whether sample obtained illegally – Whether evidence admissible – Error in obtaining evidence not wilful – Discretion to exclude – Public policy – Road Traffic Act, 1974 (W.A.), ss. 63-68, 70, 71.”

http://www.austlii.edu.au/au/cases/cth/HCA/1978/22.html

A court has the discretion to admit or exclude evidence that is improperly or illegally obtained. In exercising its discretion, the court is to weigh up the competing public requirements of (a) bringing to criminal wrongdoing to conviction and (b) protecting all individuals from unfair and unlawful treatment.  The onus is on the accused to prove misconduct and justify the exclusion.

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LAW FIRM

ON 10 JUNE 2015, the High Court of Australia delivered Isbester v Knox City Council [2015] HCA 20 (10 June 2015).

‘Administrative law – Natural justice – Bias – Reasonable apprehension of bias – Incompatibility of roles – Where respondent made order under s 84P(e) of Domestic Animals Act 1994 (Vic) for destruction of appellant’s dog – Where there was panel hearing and deliberation prior to decision being made – Where member of panel had been involved in prosecuting related criminal charges – Whether fair-minded observer might reasonably apprehend that panel member might not bring impartial mind to decision – Whether interest of panel member might affect decision-making of others on panel.

Words and phrases – “conflict of interest”, “incompatibility of roles”.

Domestic Animals Act 1994 (Vic), s 84P(e).’

http://www.austlii.edu.au/au/cases/cth/HCA/2015/20.html

The appellant had been convicted by a Victorian Magistrate on a charge that her Staffordshire terror had attacked and seriously injured another person. The decision making committee of Knox City Council (“the Panel”) subsequently determined that the dog be destroyed.

The appellant unsuccessfully sought judicial review of the decision in the Supreme Court of Victoria and the Victorian Court of Appeal.

The appellant was successful on appeal to the High Court of Australia. The High Court held that the decision making process of the respondent’s Panel was contrary to natural justice because a fair minded observer might think that a person who took part in the prosecution of the dog owner might not bring an impartial mind to the decision to destroy the dog because of their role in the prosecution.

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LAW FIRM

Elevation of Justice Carolyn Simpson to Court of Appeal

Justice Carolyn Simpson has been elevated to the Court of Appeal of the Supreme Court of New South Wales. Her Honour will be sworn in at a private ceremony on 11 June 2015.

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LAW FIRM

Appointment of Desmond Fagan SC to the Supreme Court of NSW

Desmond Fagan SC will be sworn in as a judge of the Supreme Court of New South Wales at 9am on 11 June 2015 in the Banco Court, Level 13, Queen’s Square, Sydney.

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Compensation to relatives, Motor Accidents, Personal Injury

King v Philcox [2015] HCA 19

ON 10 JUNE 2015, the High Court of Australia delivered King v Philcox [2015] HCA 19 (10 June 2015).

“Negligence – Duty of care – Mental harm – Motor accident – Civil Liability Act 1936 (SA) – Appellant negligently drove motor vehicle resulting in death of passenger – Respondent witnessed aftermath – Respondent later realised brother died in accident – Whether appellant as driver owed duty of care to passenger’s brother not to cause mental harm – Whether mental harm to brother of person killed foreseeable under s 33 of Civil Liability Act – Whether sibling relationship relevant to foreseeability.

Negligence – Damages for mental harm – Civil Liability Act 1936 (SA) – Whether respondent present at scene of accident when accident occurred – Whether accident includes aftermath.

Words and phrases – “accident”, “duty of care”, “incident”, “present at the scene of the accident when the accident occurred”, “proximity”, “reasonably foreseeable”.

Civil Liability Act 1936 (SA), ss 33, 53(1)(a).”

http://www.austlii.edu.au/au/cases/cth/HCA/2015/19.html

The High Court upheld an appeal from a decision of the Full Court of the Supreme Court of South Australia, holding that the respondent could not recover damages for mental harm because of the operation of s53 of the Civil Liability Act 1936 (SA).

Section 53 provides that a plaintiff who is not a close relative to a person injured, killed or endangered in an accident may not recover damages for mental harm unless the plaintiff was physically injured or “present at the scene of the accident when the accident occurred”.

The respondent’s brother was killed in a motor accident caused by the appellant. The respondent had driven past the accident scene on five occasions after the accident but before the scene was cleared, not knowing that the accident involved his brother. He later learned that his brother had died in a car accident and released that he had witnessed the aftermath. He subsequently developed a major depressive disorder.

The High Court found that the respondent was not present at the scene of the accident when the accident occurred and therefore, because of s53, was not entitled to damages for the mental harm that he suffered.

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LAW FIRM, Migration Law

Migration Act 1958 (Cth) | 1 June 1958

ON THIS DAY in 1959, the Commonwealth Migration Act 1958 commenced.

http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/

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Animal rights, Criminal Law, LAW FIRM, Legislation

Tail docking | 1 June 2004

ON THIS DAY in 2004, the Prevention of Cruelty to Animals Act 1979 was amended to make it an offence to dock the tail of a dog unless done by a registered veterinary surgeon and in the interests of the dogs welfare.

http://www.austlii.edu.au/au/legis/nsw/consol_act/poctaa1979360/

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