The High Court of Australia Criminal Matters Report 2021

Abstract

This missive attempts a review of those criminal ‘matters’ that came within the grasp of the High Court of Australia, from 01 July 2029 to 30 June 2021, which resulted in an appeal being heard and determined.

Full text

The High Court of Australia Criminal Matters Report
01 July 2020 to 30 June 2021.
Contents.
1. Introduction ...................................................................................................................................... 1
2. Original and Appellate Jurisdiction in the HCA ........................................................................... 3
3. The year in the HCA 01 July 2020 to 30 June 2021 ...................................................................... 9
4. Due Process of the Law ................................................................................................................. 12
5. Upholding Human Rights ............................................................................................................. 25
6. Departures and Arrivals .............................................................................................................. 27
7. Conclusions and Recommendations ............................................................................................ 31
References ............................................................................................................................................ 32
Tables
Table 1. Conspectus of High Court Judgments, 01 July 2020 to 30 June 2021 ............................... 9
Table 2. Rights Manqué and High Court Judgments, 01 July 2020 to 30 June 2021 ................... 25
Mark Alfred Clarkson, LL B, LL M, MPPM, MBA, Grad Dip ALLN, Grad Dip Mining
Doctoral Student
04 July 2021
https://www.linkedin.com/in/mark-clarkson-3848329b/

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1. Introduction.
This Annual Report is not an official one published by the High Court of Australia (‘HCA’).
Indeed, the HCA publish no report detailing its disposal of criminal matters. Access to the HCA
is fiercely guarded by the offices of the HCA Registrar. Historically, matters only proceeded to
the HCA by special leave.
1
The criteria for granting special leave are set by legislation,
2
and by
the Court.
3
The ‘doctrine’ followed by the Court changes.
4
Cases for hearing and determination
are unashamedly cherry-picked for their unique features and characteristics of ‘public
importance’.
Gleeson CJ in Re McBain; Ex parte Australian Catholic Bishops Conference,
5
observed that:
Not all parties to legal disputes submit their disputes for resolution by the judicial process. If
they do not, no occasion for the exercise of judicial power arises. Courts do not have a mandate
to seek out interesting and important questions of law, and decide them, irrespective of the
desire of parties to litigate.
6
Thus, the HCA cannot go and get them, but must sit and wait for those ‘interesting and
important questions of law’ to fight their way past the gatekeepers, through the maze of rules,
and protocols, find the not inconsiderable sums of monies required to instruct solicitors, pay
senior and junior counsel, and wait the years needed to ascertain the favour that it may please
the HCA to shine on their case.
From at least 1995, when the Honourable Sir Gerard Brennan AC KBE QC was appointed by
the Keating Labor government as Chief Justice of the HCA,
7
the ‘Brennan Court’
8
appeared to
adopt a policy or doctrine that the Courts of Appeal of the States and Territories should largely
1
Judiciary Act 1903 (Cth), s 21; High Court Rules 2004, pt 41.
2
Ibid.
3
Anthony Mason, ‘The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special
Leave to Appeal’, (1996) 15 University of Tasmania Law Review 1; Haig Patapan, Judging Democracy: the new
politics of the High Court of Australia, (Cambridge University Press, 2000).
4
Re Heerey; ex parte Heinrich (2001) 185 ALR 106; Glennan v Commissioner of Taxation (2003) 198 CLR
250; Em v The Queen [2007] HCA 46, [238] (Kirby J).
5
(2002) CLR 372.
6
Ibid [7].
7
High Court of Australia, Former Chief Justices: Sir (Francis) Gerard Brennan AC KBE QC (2010)
<http://www.hcourt.gov.au/justices/former-justices/former-chief-justices>.
8
Tony Blackshield, Michael Coper and George Williams, ‘Brennan Court’ in The Oxford Companion to the
High Court of Australia (Oxford University Press Australia, 2001) 68.

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be the final avenue of appeal in criminal matters, and that the HCA should not interfere with
their decisions. This doctrine has been successfully implemented, with the HCA now only
hearing and determining a handful of criminal cases each year. In the year under review, only
ten appeals in a criminal matter or cause were heard and determined – less than half those heard
and determined the year before. Whilst the Coronavirus Pandemic might on one view explain
the paucity of criminal appeals, the trickledown effect of the doctrine of the ‘Brennan Court’
is a more likely explanation.
The overwhelming probability is that an accused will lose any appeal in the HCA. Most matters
are dismissed as applications for special leave and never get a hearing as an appeal. Why the
HCA favours the matters it does, is not always easy to grasp from merely reading the judgments.
Even the learn’d Stephen Odgers, of Senior Counsel who appeared in IMM v The Queen,
9
and
obtained a ‘win’ does not appear to understand how or why the case was won.
10
What hope
then for the mere common or garden variety criminal to understand the machinations of the
reasoning of the HCA.
Most of the cases in Table 1 below emanate from 2017 and 2018. Given the two or three-year
wait to get cases through the State or Territory Courts of Appeal, a criminal would need to be
serving a sentence with a non-parole period of five years or more to gain any utility from the
considerable bother of making an application to the HCA. And increasingly they are not
bothering. Appellants manqué increasingly feel that their matters have no prospect of success,
despite their perceptions of justice and the advice of Counsel as to the merits – because merit
is no longer seen as part of the decision-making process. The warning given by Kirby J was
not heeded.
11
The case for a new Australian National Intermediate Court of Criminal Appeal
grows in strength.
12
9
[2016] HCA 14 (14 April 2016).
10
Benchmark Television, ‘Probative Value: A consideration of IMM v The Queen [2016] HCA 14’, Legal
Education, 12 May 2016, (Gabriel Wendler, Barrister, in discussion with Stephen Odgers, of Senior Counsel)
<https://benchmarkinc.com.au/web/television/single/166294276>.
11
Em v The Queen [2007] HCA 46, [238].
12
Mark Clarkson, ‘The Case for a New Australian National Immediate Court of Criminal Appeal’, LinkedIn, 8
May 2017 <https://www.linkedin.com/pulse/case-new-australian-national-immediate-court-criminal-mark-
clarkson>.

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2. Original and Appellate Jurisdiction in the HCA.
In Re Heerey; ex parte Heinrich (‘Re Heerey’),
13
Kirby J found that that where a matter could
proceed by way of an application for special leave, it should, and applications for prerogative
relief should not be contemplated by the High Court in those circumstances and be refused as
a matter of discretion.
In this way, Justice Kirby in the name of ‘doctrine’ effectively repealed the provisions of the
Commonwealth of Australia Constitution Act 1900 (Imp) and the Judiciary Act 1903 (Cth)
which otherwise provide the HCA with original and appellate jurisdiction exercised by way of
Constitutional Writ.
The nature of the remedies sought and the vices they seek to address are relevant to the exercise
of the ‘discretion’ to issue applications for constitutional writs pitched to the original and/or
appellate jurisdiction of the HCA.
A Full Bench of the HCA in The Roy Morgan Research Centre Pty Ltd v Commissioner of
State Revenue
14
considered the radical difference between leave to initiate originating judicial
process to review a decision of an administrative decision-maker for error of law, and leave to
initiate an appeal against the decision of a court, finding:
In Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1, the Privy Council considered
whether the provision of the Court of Appeal Act 1964 of Bermuda permitted an appeal against
an order refusing leave to apply for an order of certiorari. Lord Hoffmann, giving the advice of
the Privy Council, considered that it was (at 15) "by no means obvious that a refusal of leave to
challenge [the] legality [of a decision subject to judicial review] should be final". His Lordship
said (at 14-15):
In principle … judicial review is quite different from an appeal. It is concerned with the
legality rather than the merits of the decision, with the jurisdiction of the decision-maker
and the fairness of the decision-making process rather than whether the decision was
correct. In the case of a restriction on the right of appeal, the policy is to limit the number
13
Re Heerey; ex parte Heinrich (‘Re Heerey’) [2001] HCA 74, (2001) 185 ALR 106.
14
[2001] HCA 49.

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of times which a litigant may require the same question to be decided. The court is
specifically given power to decide that a decision on a particular question should be final.
There is obviously a strong case for saying that in the absence of express contrary
language, such a decision should itself be final. But judicial review seldom involves
deciding a question which someone else has already decided. In many cases, the
decision-maker will not have addressed his mind to the question at all. The application for
leave may be the first time that the issue of the legality of the decision is raised". (emphasis
added)
Again, however, Kemper can provide no absolute rule. The relevant statutory provision must
govern. Further, it may be important to notice that the parallel with Kemper is not exact. The
kind of judicial review for which leave was sought in this case is narrower than the general
supervisory jurisdiction which was invoked in Kemper. Importantly, however, Kemper does
invite attention to the radical difference between leave to initiate originating judicial process to
review a decision of an administrative decision-maker for error of law, and leave to initiate an
appeal against the decision of a court. A conclusion that the latter kind of decision is final may
be reached more readily than a conclusion that a litigant is to be barred from invoking the judicial
process to review administrative action without the legitimacy of that bar being capable of being
considered on appeal in the same way as any other determination by the court would be (Electric
Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554).
However, since Re Heerey, the HCA seldom considers matters that fall within its original
jurisdiction,
15
with most declared ‘an abuse of the process of the Court, to be frivolous or
vexatious or to fall outside the jurisdiction of the Court’,
16
and those that make it past the
registry gatekeepers are remitted down to a lower Court.
17
There is one instance of a matter
within the original jurisdiction of the HCA that had already found its way into a lower Court
for a criminal trial, without the HCA needing to make an order, even though the lower Court
did not seem to appreciate at the time that it was operating under Commonwealth jurisdiction.
18
Whilst it is one thing for the Court to regulate the conduct of its business by refusing in the
exercise of the discretion said to exist to do so, applications pitched to the original jurisdiction
of the HCA, thereby restricting litigants only to the vagaries of the appellate jurisdiction of the
15
Above N 3. Cf: Re McBain; Ex parte Australian Catholic Bishops Conference (2002) CLR 372.
16
High Court Rules 2004, r 6.07.
17
Judiciary Act 1903 (Cth), s 40.
18
Momcilovic v The Queen (2011) 245 CLR 1 [139].

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Court. It is entirely another matter to extrapolate the findings of Kirby J in Re Heerey,
19
so as
to declare ‘vexatious and an abuse of process’ the efforts of an applicant who dared to attempt
to invoke the original jurisdiction of the HCA.
The inescapable conclusion is that the HCA does not want to be put in a position where it needs
to become ‘concerned with the legality rather than the merits of the decision, with the
jurisdiction of the decision-maker and the fairness of the decision-making process rather than
whether the decision was correct’. The ‘balancing’ approach to due process of the law focuses
on the veracity of criminal convictions not the legality of the means used to obtain them.
Australian Courts like it that way.
It is therefore somewhat surprising that in the year under review, the HCA heard and determined
questions of law in a special case pitched to the original jurisdiction of the HCA seeking Writs
of Certiorari quashing search warrants and orders under the Crimes Act 1914 (Cth) s 3LA,
together with a mandatory injunction requiring the destruction or return of seized and copied
material.
20
Perhaps it was the security intelligence implications of the case – involving the State
NSW Parliament and the Chinese PRC that made the HCA reluctant to insist on its ‘doctrine’
and mandate the long and convoluted path to the HCA by applications for special leave.
There is a perception that what the HCA has described as its ‘doctrine’
21
has changed, and
moved to the right in harmony with a general political trend. The Labor Party, Liberal Party
and the Nationals all appear to be moving more towards the right. The more right-wing Unions
appear to be gaining ascendancy within the Union movement.
22
In Dietrich v The Queen (‘Dietrich’),
23
the HCA observed that due process of the law has
received scant attention in Australia,
24
and that it does not mean in Australia what it means in
the United States.
25
No doubt residents of the United States are deeply grateful for that fact.
However, the High Court did not go on to say what due process of the law does mean in
19
Ibid.
20
Zhang v Commissioner of Police [2021] HCA 16.
21
Re Heerey; ex parte Heinrich (2001) 185 ALR 106; Glennan v Commissioner of Taxation (2003) 198 CLR
250; Em v The Queen [2007] HCA 46, [238] (Kirby J).
22
Linda Colley, ‘Union recognition and union security: Steps to the left and jumps to the right in an Australian
state’, (2017) 23(1) Journal of Management History 95.
23
(1992) 177 CLR 292.
24
Before Ibrahim. See Dietrich, 304, and the reference to R v Ibrahim [1987] 17 A Crim R 460.
25
Dietrich, 304, following Adler v District Court [1990] 19 NSWLR 317.

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Australia.
26
While the High Court did not say that in Australia due process of the law is an
entirely meaningless expression, it does seem that whatever process effected the imprisonment
of anyone is regarded as the due process of the law, ignoring, rather than implicitly repealing
historical impediments to inquisitorial powers.
27
The Roman Catholic former Chief Justice of the High Court of Australia, the Honourable
Murray Gleeson AO observed that the Australian Constitution ‘for a large part of the 20th
century, was given a rights-based interpretation’ and: ‘That rights-based interpretation was
later abandoned by the High Court, apparently with general approval’.
28
However, the High
Court neither sought nor obtained the ‘approval’ of the Australian people for this course. In
short, the ‘doctrine’
29
adopted by High Court of Australia is inconsistent with, and overrides
the due process model for the administration of justice.
Australia is a signatory to the International Covenant on Economic, Social and Cultural Rights
(‘ICCPR’),
30
its Optional Protocol,
31
and other UN treaties and conventions dealing with
Human Rights, which are built on the due process model. Australia urges other countries to
adopt these international instruments as part of their domestic law. However, as Mason CJ and
McHugh J point out in Dietrich,
32
following the earlier decision in Bradley v Commonwealth,
33
these international agreements and instruments are not part of Australian domestic law.
34
However, the Australian Commonwealth does have some legislative capacity make things
inspired by the ICCPR part of Australian domestic law – if it chose to do so. Mostly it chooses
not to do so.
26
Ibid 307.
27
For example, the procedures of the Star Chamber emulated by the Chief Examiner are proscribed by [1640]
16 Charles I c. X (The Habeas Corpus Act), and incarceration to facilitate the investigations of a Royal
Commission is imprisonment other than according to due process of the law: [1627] 3 Charles I (Petition of
Right) c. I and [1688] 1 William and Mary Sessions II c. II (The Bill of Rights).
28
Murray Gleeson AO, ‘Rights and Values’, (Speech given to the Melbourne Catholic Lawyers Association,
Melbourne, 18 June 2004) <http://www.hcourt.gov.au/assets/publications/speeches/former-
justices/gleesoncj/cj_18june04.html.
29
Re Heerey; ex parte Heinrich (2001) 185 ALR 106; Glennan v Commissioner of Taxation (2003) 198 CLR
250; Em v The Queen [2007] HCA 46, [238] (Kirby J).
30
International Covenant on Economic, Social and Cultural Rights, open for signature 19 December 1966, 999
UNTS 3 (entered into force 03 January 1976).
31
Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976).
32
(1992) 177 CLR 292, 391.
33
(1973) 128 CLR 557, 582.
34
Reaffirmed in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273, 287.

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Immediately after the ratification of the Optional Protocol,
35
offences proscribing sodomy and
gross indecency between consenting adult males under the Criminal Code 1924 (Tas) were
challenged by Nicholas Toonen before the UN Human Rights Committee. The Committee
held that the existence of these offences violated rights of privacy under Article 17, of the
ICCPR.
36
The subsequent failure to repeal these laws in Tasmania led the Keating Labor
government, relying upon the Federal external affairs powers under the Constitution, to enact
the Human Rights (Sexual Conduct) Act 1994 (Cth), giving a right to privacy in relation to
sexual conduct for adults that has the effect of rendering the Tasmanian laws inoperative. The
Commonwealth Statute is generally accepted as a valid exercise of the legislative powers of
the Commonwealth.
37
The success achieved in the Toonen case, when most other successes before the UN Human
Rights Committee are ignored by the Australian Commonwealth, might be attributed to the
great political power wielded in Australia by the Lesbian, Gay, Bisexual, Transgender, Queer,
Questioning, Intersex, and Allies (LGBTQQIA) community.
However, in the case of His Eminence Cardinal Dr George ("I'm like Jesus") Pell (‘Pell’)
38
the
HCA appears to have dispensed with the need for special leave – the application for special
leave to appeal being immediately referred to a Full Court for argument as on an appeal.
39
Thereafter on hearing that appeal, the HCA found it evident that there is ‘a significant
possibility that an innocent person has been convicted because the evidence did not establish
guilt to the requisite standard of proof’, granted special leave to appeal and then allowed the
appeal.
40
In doing so, the HCA rejected the Crown submission that if they were minded to grant
special leave, the matter should be remitted back to the Victorian Court of Appeal, or relisted
before the HCA so that the whole of the evidence might be placed before it.
41
It appears that
the HCA were prepared to some extent to fly blind, relying solely upon the material put in the
first instance before the Court.
42
35
Above N 31.
36
Toonen -v- Australia [1994] 1 PLPR 50 Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992, 4
April 1994.
37
See Report by the Senate Legal and Constitutional Legislative Committee, Human Rights (Sexual Conduct)
Bill 1994 (December 1994) [1.72].
38
Pell v The Queen ('Pell') [2020] HCA 12 (7 April 2020).
39
Ibid [8].
40
Ibid [9].
41
Ibid.
42
Ibid [10].

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In citing three authorities said to support the course taken,
43
the HCA offered no real authority
in law allowing Pell to jump over the need first to obtain special leave to appeal. That may be
because on any objective view Pell did not have any real grounds for special leave. The
common or garden variety criminal would not get far, if the only grounds for special leave were
a general claim of innocence and/or that the jury was perverse, after a faultless trial where every
conceivable protection and advantage was afforded to the accused (and a few that had never
hitherto been contemplated). As Mathews and Thomas observed: ‘This appears perilously close
to re-trial by the court’.
44
They were perhaps being somewhat polite. The HCA in Pell leave
themselves open to the challenge that they just intervened on political and religious grounds
not hitherto known to the law to give Pell a ‘get out of gaol’ card in a bespoke, one-off case
not to be seen as a precedent of universal application.
Gleeson CJ in Re McBain; Ex parte Australian Catholic Bishops Conference,
45
adopted the
reasoning in In re Judiciary and Navigation Acts,
46
when that HCA found: ‘we do not think
that the word “matter” in s 76 [of the Constitution] means a legal proceeding, but rather the
subject matter for determination in a legal proceeding’. Most of the subject matters raised for
determination by the HCA are never really considered in any depth, but dismissed somewhat
summarily from the judicial mind in harmony with what has become the rather routine
dismissal of applications for special leave to appeal.
The High Court Rules 2004 provide that the Court may determine leave and special leave
applications on the papers without an oral hearing. In those cases, the applications are not
listed for hearing but for publication of reasons and pronouncement of orders only. Indeed on
the morning that the case of His Eminence Cardinal Dr George ("I'm like Jesus") Pell was
heard, seventeen applications for special leave were summarily dismissed on the papers without
a hearing.
47
His Eminence must have felt very special indeed!
43
Ibid. The judgment N 5 listed Chidiac v The Queen (1991) 171 CLR 432 at 444 per Mason CJ, citing
Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 618-619 per Deane J; see also M v The Queen (1994)
181 CLR 487 at 494 per Mason CJ, Deane, Dawson and Toohey JJ.
44
Ben Mathews, and Mark Nicholas Bernard Thomas, 'How George Pell won in the High Court on a legal
technicality', The Canberra Times, online at 7 April 2020
<https://www.canberratimes.com.au/story/6715000/how-george-pell-won-in-the-high-court-on-a-legal-
technicality/?cs=14329>.
45
(2002) CLR 372 [3].
46
(1921) 29 CLR 257, 265.
47
High Court of Australia, Special leave applications results 2020: 11 March 2020
<https://www.hcourt.gov.au/registry/special-leave-applications-results-2020#Mar20>.

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3. The year in the HCA 01 July 2020 to 30 June 2021.
This missive attempts a review of those criminal ‘matters’ that came within the grasp of HCA,
from 01 July 2029 to 30 June 2021, which resulted in an appeal being heard and determined.
The task is made somewhat easier by the fact that in the twelve months being considered the
HCA only heard and determined ten appeals. Not even one a month – and three of the appeals
deal with procedural matters and barely make it on to the list. The judgments appear to be
delivered in clusters just before and after judicial holidays. Table One (below) lists the
judgments in date order.
The unfortunate Appellant in Singh v The Queen
48
died after the matter had been heard, but
before judgment could be delivered. It became no longer possible to make an order quashing
the Appellant’s conviction and ordering a retrial. No other order was found to be appropriate.
Special leave to appeal was revoked. The Appellant died a convicted person. In Re Golding,
49
Nettle J found that whilst an application for an extension of time and an application for special
leave to appeal are interlocutory applications and ‘second’ applications are not proscribed, it is
not open to an applicant to make a second application for leave to appeal. Whilst His Honour
did not specifically enunciate the reasoning for this ruling, it appears to be pitched to some
notion of res judicata.
Date
Case Name
Type
Citation
Disposition
Origin
05 Aug 2020
Singh v The
Queen
Because he died after the matter was
heard, but before judgment could be
pronounced, it became no longer
possible to make an order quashing
the Appellant’s conviction and
ordering a retrial. No other order was
found to be appropriate. Special leave
to appeal was revoked.
[2020] HCA 25
Special Leave to
Appeal revoked.
NT
05 Aug 2020
Lewis v ACT
Nominal damages only for false
imprisonment, because even if the
Appellant had not been denied
procedural fairness it was inevitable
that a periodic detention order would
have been cancelled and full-time
imprisonment would have resulted.
[2020] HCA 26
Appeal
dismissed with
costs.
ACT
48
[2020] HCA 25.
49
[2020] HCA 38.
Table 1. Conspectus of High Court Judgments, 01 July 2020 to 30 June 2021

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09 Sep 2020
Private R v
Cowan
ADF personnel validly charged under
the Defence Force Discipline Act
1982 (Cth), albeit that the offence is
also proscribed by the Criminal Code
(Qld) and was allegedly committed in
Queensland in time of peace when
recourse to the civil courts was
available.
[2020] HCA 31
Appeal
dismissed with
costs.
Cth
14 Oct 2019
The Queen v
Abdirahman-
Khalif
Respondent convicted of offence of
intentionally being member of
terrorist organisation contrary to
Criminal Code (Cth) s 102.3(1). The
concept of an "organisation" under s
100.1 of the Code is not amenable to
an exhaustive or rigid definition.
[2020] HCA 36
Appeal Allowed
Conviction
reinstated.
SA
21 Oct 2020
Re Golding
Whilst an application for an
extension of time and an application
for special leave to appeal are
interlocutory applications and
‘second’ applications are not
proscribed, it is not open to an
applicant to make a second
application for leave to appeal.
[2020] HCA 38
Application
Dismissed.
Qld
04 Nov 2020
GBF v The
Queen
Sexual offences. Uncorroborated
testimony of complainant. Appellant
did not give evidence. Trial Judge
directed the jury that: “there is no
evidence, no sworn evidence, by the
defendant to the contrary of her
account. That may make it easier".
[2020] HCA 40
Appeal
Allowed. New
trial ordered.
Qld
09 Dec 2020
Roy v O’Neill
Implied licence to enter premises
without a warrant by police officers,
so they might undertake such
enquiries and observations of the
Appellant as were necessary to
ascertain whether a DVO had been
breached and an offence committed.
No trespass established. Convictions
upheld.
[2020] HCA 45
Appeal
Dismissed.
NT
09 Dec 2020
Peniamina v
The Queen
The partial defence of provocation
operates to reduce what would
otherwise be murder to manslaughter.
Criminal Code (Qld) s 304. The
burden of proof for the defence is
placed on the accused, but whether
the defence allowed under s 304(3)
applies is a matter of law, not a
matter for the jury and not for the
accused to disprove.
[2020] HCA 47
Appeal
Allowed. New
trial ordered.
Qld
14 Apr 2021
Namoa v The
Queen
Acts in preparation for a terrorist act
contrary to the Criminal Code (Cth) s
101.6(1). For the purposes of the
Criminal Code (Cth) s 11.5(1) a
husband and wife are each a "person"
and can be guilty of the statutory
offence of conspiracy with each
other.
[2021] HCA 48
Appeal
dismissed.
NSW
12 May 2021
Zhang v
Commissioner
of Police
Original jurisdiction of HCA.
Australian Constitution s 75(v).
Judiciary Act 1903 (Cth) s 30(a).
[2021] HCA 16
Questions of
law in the
special case
Cth

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Writs of certiorari sought quashing
search warrants and orders under the
Crimes Act 1914 (Cth) s 3LA,
together with a mandatory injunction
requiring the destruction or return of
seized and copied material. Special
case filed.
answered
against the
Plaintiff, with
costs.
The creation of a scoreboard, which attempts to discover what features impress the HCA
sufficiently for an appeal to succeed, may not be of much utility. The ten cases heard and
determined in the twelve months considered, would never be considered a large enough sample
statistically to show trends. However, the sample under review may have to suffice since there
is no immediate evidence that the HCA will hear and determine more cases each year (and this
year the HCA heard twelve fewer criminal cases than last year).
Of the ten appeals, two dealt with procedural matters and are not counted for the purposes of
this exercise.
50
Five – 62.5% were dismissed (36.37% in 2020). However, if the successful
Crown appeals are counted as if they were appeals by accused persons being dismissed, the
aggregate ‘victories’ for the Crown grows to six or 75% (59.09% in 2020). No verdicts of
acquittal were entered – (13.36% in 2019). Two new trials were ordered – 25% (9.09% in
2020). In no cases was the appeal was allowed, and the matter remitted for resentencing –
(13.64% in 2020). There was only one very high-profile case – Zhang (one Pell in 2020).
The Pell case confuted any suggestion that you have a better chance of winning your appeal
with an acquittal in the HCA, if you are a sexual offender and it is not a high-profile case.
Aggregating all the ‘victories’ for an accused, you only have a 20% odd chance of obtaining
an acquittal, a retrial or resentencing (45.45% in 2020). The overwhelming probability is that
an accused will lose any appeal in the HCA.
50
Singh v The Queen [2020] HCA 25; Re Golding [2020] 38.

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4. Due Process of the Law.
In refusing to read together the Victorian due process requirements of those Imperial Acts
transcribed in the Imperial Acts Application Act 1980 (Vic) together with Section 397, of the
Crimes Act 1958 (Vic) in the same way as the US Supreme Court has read together the 5th, 6th
and 14th Amendments to the US Constitution to give a right to Counsel, the HCA observed in
Dietrich
51
that due process of the law has received scant attention in Australia,
52
and that it
does not mean in Australia what it means in the USA
53
. No doubt residents of the US are deeply
grateful for that fact. As an adjunct to the right to a fair trial, Australians now have a right to
an adjournment, but not to Counsel. In short, the HCA does not favour the American or
historically English due process model for the administration of justice. The "balancing"
approach to due process is now entrenched in Australian law.
The traditional due process model is ‘means’ driven, not ‘end’ driven. The ‘end’ (the
imprisonment and conviction of an accused) is not sustainable in law, if the ‘means’ employed
to achieve the end are not in themselves, lawful, fair and just. The use of ‘means’ that are in
themselves corrupt, unlawful, wrong, cruel, inhuman or unjust, vitiates in law the ‘end’
achieved and the convictions obtained by such means are quashed and offenders are released
from custody. The Roman Catholic HCA Justice Dyson Heydon attempted to explain the
Summum bonum as it is applied in Australian law in Moti v The Queen,
54
(although in dissent
with the majority judgment), saying that it is not a case of ‘the end justifies the means’, but that
‘the accident of evil means should not disrupt the fulfilment of a just end’. The HCA later
refined that as ‘accidents of incompetence’. There are a lot of ‘accidents’ in Australian justice
simply because Courts inevitably find that any ‘accidents of evil means’
55
or ‘accidents of
incompetence’
56
perpetrated, were just an accidental oversight, a mere breach of some technical
provision and that no substantial miscarriage of justice actually occurred.
51
1992) 177 CLR 292.
52
Before Ibrahim. See Dietrich -v- The Queen (1992) 177 CLR 292, 304 and the reference to R -v- Ibrahim
[1987] 17 A Crim R 460.
53
Dietrich -v- The Queen (1992) 177 CLR 292, 304 following Adler -v- District Court [1990] 19 NSWLR 317.
54
[2011] HCA 50, [105].
55
Ibid [106].
56
Pseudonyms v CDPP [2018] HCA 53, [96]-[100].

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In short, in Australian law, any failures to follow the precise written law relating to
investigations or prosecutions are dismissed as an ‘accident’ and ‘balanced’ against the ‘greater
good’ achieved by ignoring the use of ‘evil means’. Curious then that when the Roman Catholic
former High Court Justice, the Honourable (“Dirty”) Dyson Heydon AC QC was found by an
HCA internal review to have consistently sexually harassed his associates and other legal
professionals, the Roman Catholic Barrister Kate Eastman decried the failure to follow strict
procedural fairness, and to offer Heydon the right to cross-examine witnesses – both said to be
amongst the tenets of natural justice.
57
This has the appearance of demanding an exemption for
Heydon from the rules that apply to other Australians that Heydon helped craft.
Appellate courts in California first coined the expression ‘fruit of the poisonous tree’ to
describe the concept that under the due process model, everything that flowed from a failure to
follow the rules for criminal investigation and prosecution became tainted and inadmissible.
Successively state and federal courts throughout the USA followed the Californian lead,
accepting that this concept was the only effective way of controlling corrupt and unlawful
conduct by investigators, prosecutors, and judges.
Rather than the American fruit of the poisonous tree approach, Australia balances all the crimes
perpetrated by police, prosecutors, defence counsel, and Judges, against the crimes committed
by an accused. Only the accused must obey the law. The greater good excuses all lesser evils
perpetrated in bringing criminals to justice. Moreover, in Australia there is no right to silence,
58
right to speedy trial,
59
or right to Counsel.
60
The duties of Counsel are loosely defined, noted
more when there is an occasional challenge to their conduct.
61
Expect that Appellate Courts
considering appeals by those suffering the legal representation of Gobbo, will observe that
Counsel, seeking to avoid being Particeps criminis in the criminal offending by their clients,
57
Kate Eastman, ' Natural justice is a golden rule of investigations. Has it been followed in the Dyson Heydon
case?', The Guardian, online at 24 June 2020
<https://www.theguardian.com/commentisfree/2020/jun/24/natural-justice-is-a-golden-rule-of-investigations-
has-it-been-followed-in-the-dyson-heydon-case>.
58
The remnants in Victoria, of the historic ‘right to remain silent’ or ‘right against self-incrimination’ are
abrogated – wilting under the powers of the Inquisitors commissioned under the Major Crimes (Investigative
Powers) Act 2004 (Vic), s 39(1); 39(1A). The majority decision of the High Court in Petty and Maiden v The
Queen [1991] HCA 34; (1991) 173 CLR 95 [2]-[3] is a distant memory.
59
Jago v District Court (1989) 168 CLR 23.
60
Dietrich above N 53.
61
For some instances see: Mark Alfred Clarkson,'Adversarial to Inquisitorial: Reflections on the Criminal
Justice System in Victoria, Australia (revised 1 October 2017)', ResearchGate, online at October 2017
<https://www.researchgate.net/publication/ 320145559
_Adversarial_to_Inquisitorial_Reflections_on_the_Criminal_Justice_System_in_Victoria_Australia_revised_1_
October_2017>.

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have a duty to disclose to police all relevant information and documents provided by an
accused, even if they are not registered police informers.
Certainly, the brave stand taken by Judge Montgomery in the County Court of Victoria to
exclude evidence unlawfully by Victoria Police following their practice not to swear the
affidavits in support of search warrants,
62
changed that practice – when nothing else seemed to
have that effect.
However, Lasry J in R v Borg (Ruling No.1)
63
followed the more prevalent Australian judicial
practice by finding that the information contained in the affidavits in that case was ‘accurate,
correct and truthful’, and exercised ‘his discretion’ to allow the evidence obtained to be
admitted. This was despite the evidence given by Senior Sergeant Iddles that he had been a
member of the Victoria Police for some 33 years, spending much of that time in the Homicide
Squad, and that since 1994, when he rejoined the police force after being away for five years,
he had not sworn an affidavit, or asked anyone to swear an affidavit in his presence. Iddles
said, ‘it became custom and practice that the affidavits were not sworn’.
64
While Judge
Montgomery changed the practices of Victoria Police, Lasry J did not want to change a thing.
The State Victoria legislature moved to entrench the Lasry stance.
65
In Hudson v Michigan,
66
the US Supreme Court imposed limits on due process of the law,
finding that the failure to comply with the ‘knock and announce’ extension to the lawful search
and seizure rules should not invoke the application of the exclusionary rule and lead to the
quashing of the convictions otherwise obtained. The judgments of Justice Breyer, for due
process and the Roman Catholic Justice Scalia for the Summum bonum, clearly outline the
basis for, and the consequences of, the opposing foundations for justice and show that Roman
Catholic Law and Doctrine is not just an Australian problem, but that this Strangler-Fig of
Justice is an International virus.
In Australia, corrupt and unlawful conduct on the part of investigators, prosecutors and judges
is regarded as necessary and desirable. The stance ‘do anything’ to obtain and maintain criminal
62
DPP v Marijancevic & Ors [2011] VSCA 355.
63
[2012] VSC 26; see also R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82.
64
Ibid [25].
65
Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic).
66
200 US 321 (2006).

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convictions is encouraged by appellate courts, politicians and the media. Under this stance
nothing is scared, no one is barred, and no act is too low. No wonder then that Australian
political, economic, and legal systems are regarded as deeply and irretrievably corrupt – in the
sense of not capable of not being corrupt. The variable, relative morality of Roman Catholicism
prevails, and everything is judged on a case-by-case basis. The ultimate imperative is to decide
where in the ‘basket of evils’ the ‘greater good’ lies. This was expressed as a ‘balancing’
process in Ireland v R,
67
Bunning v Cross,
68
Pollard v R,
69
Ridgeway v R,
70
R v Swaffield and
Pavic,
71
Nicholas v R.
72
and reaffirmed in 2020 in Kadir v The Queen; Grech v The
Queen.
73
No surprise then that the term ‘Kangaroo Court’ was coined to describe Australian
Courts.
Many ask why the accused persons in the perhaps 1,000 cases tainted by the conduct of Nicola
Gobbo, One of Her Majesty's Counsel, One of Victoria Police's Informers at the Victorian Bar
(‘Gobbo’) remain in custody. These questions mainly come from lawyers familiar with the
American concepts of due process, the right to silence, the right to speedy trial, and the right
to counsel developed under the auspices of the 4th, 5th, 6th, and 14th amendments to the US
constitution and those Australians who watch US crime shows and become inculcated with
American concepts of justice, fairness, due process, and the duties and responsibilities of
counsel.
As for the other Australian States that are component parts of the Commonwealth of Australia
confederated under the Australian Constitution,
74
Victoria follows the United Kingdom model
of a largely unwritten Constitution. Not all the powers and duties of the otherwise sovereign
State of Victoria are committed to writing. The liberties and freedoms of Her Majesty’s subjects
resident in the State of Victoria are largely dependent upon the conventions and customs that
are expressed in the protocols that have built up over millennium. The will of the Legislature
is expressed in those Statutes, Regulations and Rules that are specifically passed or empowered
67
[1970] HCA 21; (1970) 126 CLR 321
68
[1978] HCA 22; (1978) 141 CLR 54, 74-75 (Stephen and Aickin JJ)
69
[1992] HCA 69; (1992) 176 CLR 177
70
[1994] HCA 33; (1995) 184 CLR 19
71
[1998] HCA 1; (1998) 192 CLR 159
72
[1998] HCA 9; (1998) 193 CLR 173
73
[2020] HCA 1.
74
Commonwealth of Australia Constitution Act 1900 (Imp).

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by legislation. There is no Constitutional protection for any of this legislation, which can be
amended or repealed at any time. Its interpretation is the province of the Courts.
However, some Statutes are so central to that which defines Victoria, that they are regarded as
written parts of the otherwise unwritten Constitution of the State of Victoria. These include the
Constitution Act 1975 (Vic) and the other Statutes that constitute the Courts and the
Parliament.
75
These Acts are regarded as written parts of the otherwise unwritten Constitution
of the State of Victoria, not because they cannot be amended or repealed, but because they are
not amended or repealed very often, and then only slowly, and with a good deal of debate and
trepidation.
76
At least that is the theory. However, when Victoria repealed the centuries-old
protection against double jeopardy,
77
there appeared to be much ‘knee-jerk’ style haste, and
not much evidence of debate or trepidation.
78
Gone in a flash was what the High Court of
Australia unanimously found was a rule ‘properly understood as a value which underpins the
criminal law’.
79
The due process and the other requirements of those Imperial Acts transcribed in the Imperial
Acts Application Act 1980 (Vic),
80
are also regarded as written parts of the otherwise unwritten
constitution of the State of Victoria. They are notionally incorporated into the Charter of
Human Rights and Responsibilities Act 2006 (Vic), s 21(3). The Imperial Acts are said to
continue to influence the development of the common law in Victoria,
81
although apart from
the platitudes – there is little real evidence of this. The due process concepts were further
developed, and reaffirmed in England in the aftermath of the English Civil War,
82
and
Revolution (1603-1714),
83
as a foil to the tenets of the auto-da-fé, and the Star Chamber, and
75
Including the Constitution (Appointments) Act 2009 (Vic); Constitution (Council Vacancies) Act 1984 (Vic);
Constitution (Supreme Court) Act 1989 (Vic).
76
McCawley v R (1918) 26 CLR 9, 52 (Isaacs and Rich JJ).
77
Criminal Procedure Act 2009 (Vic), ch 7A—Limitations on rules relating to double jeopardy (inserted by
No. 81/2011 s. 17).
78
Marilyn M McMahon, ‘Retrials of persons acquitted of indictable offences in England and Australia:
Exceptions to the rule against double jeopardy’ (2014) 38 Criminal Law Journal 159, 163.
79
Bui v DPP (Cth) (2012) 244 CLR 638 (emphasis in original), following Pearce v The Queen (1998) 194 CLR
610, 614; see also Yuce Baykara, Acquitted with an Asterisk: Implementing the ‘New Double Jeopardy’
Exception into Canadian Law (Master of Laws Thesis, University of Toronto, 2012) 28-32.
80
Emulated in some other Australian States: see for example the Imperial Acts Application Act 1969 (NSW).
81
Antunovic v Dawson (2010) 30 VR 355, 362 [25].
82
Norah Carlin, The Causes of the English Civil War (Wiley-Blackwell, 1999).
83
Mark Stoyle, Soldiers and Strangers: An Ethnic History of the English Civil War (Yale University Press,
2005); Mark Stoyle, Overview: Civil War and Revolution, 1603-1714, BBC online at 17 February 2017
<http://www.bbc.co.uk/history/british/civil_war_revolution/overview_civil_war_revolution_01.shtml>.

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did not adopt the variable, relative morality of Roman Catholicism concatenated in the
Summum bonum, but rejected it, providing rights which were absolute.
In Victoria, for criminal appeals ‘the proviso’ was removed and the onus cast upon an appellant
to establish a substantial miscarriage of justice as well as the substantive grounds of appeal.
84
The term ‘substantial miscarriage of justice’ appears to have been interpreted as meaning that
the appeal should be dismissed if the Court thinks that the accused was ‘guilty anyhow’.
Imagine then an appellant presenting a case saying, I was guilty. I pleaded guilty. The sentence
I am serving is not inappropriate for my offences. However, when I big-noted myself to Gobbo
and confessed to her my crimes, she told the police and gave the police documents that proved
my guilt. She then helped police perfect their case, and persuaded me to plead guilty.
85
Is the
Court of Appeal expected to find a substantial miscarriage of justice?
In Mokbel v DPP (Cth),
86
the Victorian Court of Appeal appears (with respect) to have entirely
missed the point when referring to due process. Noting the concession by the Commonwealth
DPP that the convictions could not stand, Beach and Osborn JJ found:
87
To the extent that the appellant submitted that an order for a retrial would be futile in
circumstances where the Director has said there will be no retrial, we reject that submission.
Section 326E(1) of the Criminal Procedure Act provides only two alternatives for this Court in
the circumstances of this case: an order for a retrial, or an order for an acquittal. The fact that
there will be no retrial does not make an order for due process futile. An order for retrial will
remit the decision as to further prosecution of this matter to the proper decision maker in
accordance with the principles stated in Dyers, Thomas and Walker. It will also result in a
qualitatively different disposition of the proceeding from an acquittal. Recognition of that
qualitative difference is implicit in the observations of Kiefel CJ and Keane J in A2. The
qualitative difference is not overcome by the fact that an acquittal by this Court on appeal can in
some circumstances itself be regarded as qualitatively different from acquittal by a jury.
(emphasis added)
84
Criminal Procedure Act 2009 (Vic) s 276.
85
Danny Morgan, 'Gobbo gave police documents behind tomato tin ecstasy bust, royal commission hears', ABC
News, online at 08 August 2020 <https://www.abc.net.au/news/2019-08-08/gobbo-gave-police-tomato-tin-bust-
documents-royal-commission/11396570>.
86
[2021] VSCA 94 (16 April 2021)
87
Ibid [67].

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In this passage, the Victorian Court of Appeal appeared desperate to equate due process with
the veracity of the convictions, whilst just as desperate to avoid any examination of the
lawfulness of the process used to convict Mokbel (and a 1,000 others). It is insulting to the
intelligence of anyone who understands the long battle for due process of the law for the
Victorian Court of Appeal to use the term as a justification for ordering a retrial. Due process
demanded that the imprisonment of Mokbel be terminated – along with that of the 1,000 odd
others affected by the machinations of the corrupt cartel including Gobbo, Victoria Police, and
the prosecutors and Judges particeps criminis in her offending. The Victorian Court of Appeal
did not appear to really understand what due process really meant. Certainly, they did not
define it, but mouthed the term as if a platitude – perhaps believing that things become true,
merely because they utter words. Judges are not appointed for their high intelligence quotas or
based on the depth of their legal scholarship, but for their compliant political beliefs.
Crying out for articulation was a submission that the imprisonment was obtained corruptly and
unlawfully, other than according to the due process of the law. That submission was never
made. It speaks volumes about the compliant nature of the Victorian Bar that no barrister has
made an application seeking to cauterise the imprisonment as a violation of due process on
behalf of any of the more than 1,000 affected by the machinations of the corrupt cartel.
Whilst the HCA in Dietrich did not define what due process means in Australia, it could not
mean having police, defence counsel, prosecutor and Judge all working in collaboration to
secure a conviction – but it appears that ‘the end justifies the means’ of Roman Catholic Law
and Doctrine embraces this course. This is an ancient battle. In common with many police
forces throughout the world staffed by Irish Roman Catholic emigrees, policing in Australia is
seen as regulating, controlling, and taxing, but not eliminating crime. From the proverbial
backhander around the head of an uncooperative youth, to the planting and fabricating of
evidence, and false confessions known as ‘verbals’, Australian policing has had more than its
fair share of the Roman Catholic tolerance for a rough and tumble justice system that focuses
on getting to a ‘just end’ anyway it has to, even though the journey may be resplendent with
corrupt and unlawful devices.

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The Habeas Corpus Acts
88
in force and effect in Victoria pursuant to the Imperial Acts
Application Act 1980 (Vic) on their face demand the release of anyone imprisoned other than
according to due process of the law – and once released on the writ, they can never be again
imprisoned for the same matter. However, the Victoria Court of Appeal appears desperate to
avoid at all costs having to deprive the corrupt cartel of the fruits of their poisonous tree. The
rough and tumble justice demanded by policing has infiltrated high into the judiciary of
Australian courts to craft a uniquely Australian ‘Kangaroo Court’ justice system. That situation
will never change as long as Australian courts provide the ‘moral leadership’ that allows,
demands, and requires corrupt and unlawful conduct to achieve ‘just ends’.
The HCA is at the top of the pulpit when it comes to providing moral leadership to Australian
Judges, Prosecutors, Defence Counsel, Police, and other agencies – all of whom are expected
to behave corruptly and unlawfully to achieve a preordained result for the ‘greater good’ or in
the ‘public interest’. Rarely are they found to have exceeded the permitted ‘accidents of evil
means’
89
or ‘accidents of incompetence’
90
and moved to the now proscribed ‘instances of
deliberate or advertent reckless disregard of a duty or obligation’
91
(whatever that may mean
from time-to-time) which might found a permanent stay of the proceedings. There are a lot of
"accidents" in Australian justice.
The words due process first appear in Magna Carta,
92
and are repeated in several of the Habeas
Corpus Acts,
93
and in the Bill of Rights.
94
They appear in the 5th and 14th Amendments to the
United States Constitution,
95
and in Article 9(1) of the Optional Protocol of the International
Covenant for Civil and Political Rights.
96
They are notionally incorporated into the Charter of
Human Rights and Responsibilities Act 2006 (Vic), s 21(3).
97
The due process and the other
88
[1640] 16 Charles I c. X (The Habeas Corpus Act); [1679] 31 Charles II c. II; [1816] 56 George III c. C.
89
Moti v The Queen [2011] HCA 50 [106].
90
Pseudonyms v CDPP [2018] HCA 53 [96]-[100].
91
Ibid.
92
[1297] 25 Edward I c. XXIX (Magna Carta).
93
Above N 88.
94
[1688] 1 William and Mary Sessions II c. II (The Bill of Rights) 3.
95
Steve Bachmann, ‘Starting Again with the Mayflower... England's Civil War and America's Bill of Rights’
(2000) 20 (2) Quinnipiac Law Review 193.
96
Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976).
97
But not ipsissima verba, although there appears to be no real difference in the effect of the words used.
➢ 5th Amendment: ‘No person shall be … deprived of life, liberty or property without due process of law…’
➢ 14th Amendment: ‘nor shall any state deprive any person of life, liberty or property without due process of
law…’.

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requirements of those Imperial Acts transcribed in the Imperial Acts Application Act 1980
(Vic),
98
are also regarded as written parts of the otherwise unwritten constitution of the State
of Victoria, and are said to continue to influence the development of the common law in
Victoria,
99
although apart from the platitudes – there is little real evidence of this. The due
process concepts were further developed, and reaffirmed in England in the aftermath of the
English Civil War,
100
and Revolution (1603-1714),
101
as a foil to the tenets of the auto-da-fé,
and the Star Chamber, and did not adopt the variable, relative morality of Roman Catholicism
concatenated in the Summum bonum, but rejected it, providing rights which were absolute.
In many ways, the English Civil War was more than just a fight between the followers of the
Roman Catholic and Protestant religions, but also between those favouring the Summum
bonum, and those demanding due process of the law. Roman Catholics largely supported the
concept of a Monarch wielding absolute power – (on the basis that the Monarch must be a
Roman Catholic), supported by a hierarchy of Nobles.
102
This structure emulates the power
hierarchy by which the Roman Catholic Church itself is ruled. Whilst following the death of
Cromwell, it appeared for a time that the Summum bonum of Roman Catholic Law and Doctrine
would become entrenched in England, Scotland, and Ireland under a Roman Catholic
Monarch,
103
the ascendency of the ‘orange’ William and Mary,
104
resulted in the reaffirmation
of due process in the English Bill of Rights.
105
In Victoria, Australia, reversing the legal and ideological victories the ‘orange’ William and
Mary obtained over English Roman Catholic Monarchs manqué,
106
is included in Roman
Catholic causes célèbre. Gradually, the Summum bonum of Roman Catholic Law and Doctrine
➢ [1354] 28 Edward III c. III: ‘no man shall be put out of land or tenement, nor taken, nor imprisoned, nor
disinherited, nor put to death, without being brought in answer by due process of the law’.
➢ [1368] 42 Edward III c. III: ‘no man shall be put to answer without … due process …’.
➢ ICCPR, Art 9(1): ‘No one shall be deprived of his liberty except on such grounds and in accordance with
such procedure as are established by law’.
➢ Charter of Human Rights and Responsibilities Act 2006 (Vic), s 21(3): ‘A person must not be deprived of his
or her liberty except on grounds, and in accordance with procedures, established by law’.
98
Emulated in some other Australian States: see for example the Imperial Acts Application Act 1969 (NSW).
99
Antunovic v Dawson (2010) 30 VR 355, 362 [25].
100
Norah Carlin, above N 82.
101
Mark Stoyle, above N 83.
102
John SA Adamson, ‘The baronial context of the English Civil War’ (1990) 40 Transactions of the Royal
Historical Society 93.
103
Mark Stoyle, above N 83.
104
Ibid.
105
Above N 94.
106
Mark Stoyle, above N 83.

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vanquished due process of the law. The Summum bonum dilutes the effectiveness of the
Charter of Human Rights and Responsibilities Act 2006 (Vic) – with s 7 demanding ‘that rights
should not generally be seen as absolute but must be balanced against each other and against
other competing public interests’. This application of the Roman Catholic ‘no rights are
absolute’ doctrine,
107
ignores the plain fact that if it is not ‘absolute’, it is not a ‘right’, and
renders the Charter of Human Rights and Responsibilities Act 2006 (Vic), a ‘show-no-go’
instrument designed to placate calls for human rights, without conceding much.
The then recently retired Roman Catholic Chief Justice of the High Court of Australia Murray
Gleason AO in his speech ‘Rights and Values’ given to the Melbourne Catholic Lawyers
Association in Melbourne on 18 June 2004,
108
expressed the view that ‘no rights are absolute’.
Gleeson posited the question, ‘If two rights, neither of which is absolute, conflict, and a court
is required to decide, by a process of "balancing", which is to prevail, and to what extent, what
is the intellectual process by which that task is to be accomplished’? The answer was also
provided. ‘When rights conflict, a decision as to which is to prevail, and to what extent, can
only be justified rationally by reference to some value external to the "balancing" process’.
Gleeson added:
To describe something as a ‘right’ may itself require justification. It is a commonplace feature
of political and legal debate that advocates of various interests seek to characterise those
interests as rights, thereby staking a claim for weight or recognition that may be contestable.
By calling an interest a right, you may trump another interest. If there is a contest, then, again,
it can only be resolved rationally (as distinct from resolution by power or weight of numbers)
by reference to some value’.
In the past, religion provided many of the common values by reference to which conflicts of
rights or interest were resolved. In the future, what will take its place? Our law still reflects
many Christian values. If and when these are challenged, how is the challenge resolved?
We live in a pluralist society. By definition, that means that there is competition, not only when
it comes to applying values, but also in identifying values. Everybody is aware that our society
is rights-conscious. A rights-conscious society must also be values-conscious. If it is not, then
107
The Honourable Murray Gleeson AO QC, above N 28.
108
Ibid.

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we have no way of identifying those interests that are rights, or of resolving conflicts between
them. Rights cannot work without values.
Gleeson observed that the Australian Constitution ‘for a large part of the 20th century, was
given a rights-based interpretation. That rights-based interpretation was later abandoned by the
High Court, apparently with general approval’.
109
However, the HCA neither sought nor
obtained the ‘approval’ of the Australia people for this course, and Australians now live under
the unrelenting grip of Roman Catholic Law and Doctrine. The ‘balancing’ approach to due
process fiercely delineates recourse to Courts so that they only ever look at the veracity of
criminal convictions of it and not the lawfulness of the means used to obtain them.
The ‘rights’ of Australians are being progressively abandoned in favour of ‘the accident of evil
means’ that ‘balances’ their aspirations against the political, religious and economic ‘ends’
dictated by those exercising power over them – of course, on a case-by-case basis. Moreover,
the recent riots in the US appear to indicate that the ‘better training’ posited by the Roman
Catholic Justice Scalia in Hudson v Michigan
110
as a solution for police perpetrating corrupt
devices against due process is not effective. The only ‘training’ they receive is on-the-job
training in the learned behaviour of corruption.
The Australian ‘whatever it takes’ approaches to terrorism, immigration, and criminal offences
are intertwined. It is not contemplated that human rights will be extended to anyone coming
within the grasp of the systems that deal with any of the above. The Roman Catholic Church
did not willingly give up its powers to secular institutions that rose to take their modern form
as the legislature, executive and judiciary. Modern concepts such as the doctrine of the
separation of powers are the complete antithesis of Roman Catholic Law and Doctrine. The
Roman Catholic Church sees any separation of powers independently exercised by the
legislature, executive, and judiciary as an artificial and unnecessary delineation of the exercise
otherwise of the absolute executive power which is the foundation of Roman Catholic Law and
Doctrine.
109
Ibid.
110
200 US 321 (2006).

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The righteousness of ‘natural law’ persists as a concept,
111
but one could be forgiven for
assuming that evolutionary jurisprudence really does mean the survival of the fittest, despite
urgings to the contrary.
112
Nor has the assumption of justice powers by the State, removed the
influence of the Roman Catholic Church from the process, which persists in most polities where
the Roman Catholic Church has a presence.
113
The reformation may have allowed States to
rise, and take some powers from the Roman Catholic Church, but those States largely continued
the application of Roman Catholic Law and Doctrine.
114
The explanation of ‘why an authority
that lacked the sinews of a state was able to orchestrate a centralised system of law’ is more
complex. Indeed, D'Avray makes a convincing argument that it was the very complexity of
legal systems that fuelled the need for papal law.
115
The focus on the veracity of decision-making processes, which examines only the overall ‘end’
achieved rather than being ‘concerned with the legality rather than the merits of the decision,
with the jurisdiction of the decision-maker and the fairness of the decision-making process
rather than whether the decision was correct’ adopted in Australia for terrorism, immigration,
and criminal offences, must be contrasted with what unmistakeably appears to be the opposite
approach for resource approvals taken by Australian Courts, including the HCA.
In Australia resource approvals are notorious for ‘lawfare’ – that continued repeated delays in
securing approvals based on the most microscopic examination of the compliance by the
resource proponent with the most exacting of requirements. Woe betide any resource proponent
if a lower Court fails to observe procedural fairness in conducting a hearing and making a
recommendation,
116
or any decision-maker fails to consider matters germane to the
decision-making process or considers matters extraneous to the decision-making process.
117
The ‘end justifies the means’ Weltanschauung appears to apply to resource approvals on the
basis that the ‘whatever it takes’ doctrine is applied to defeat the aspirations of any resource
111
Charles E Marske, Charles P Kofron, and Steven Vago, ‘The Significance of Natural Law in Contemporary
Legal Thought’ (2017) 24 (1) The Catholic Lawyer 5.
112
Haydn J Rigby, History Matters: A Survey of Ideas about Evolution in Western Legal Theory from Antiquity
to the Present Day in order to Propound a Theory of Evolutionary Jurisprudence (Doctoral dissertation,
Murdoch University, 2017) 8-13.
113
Jay P Corrin, ‘The English Catholic New Left and Liberation Theology’ (2017) 59 (1) Journal of Church and
State 43.
114
Haydn J Rigby, above N 112, 91.
115
David D'Avray, ‘Stages of Papal Law’ (2017) 5 Journal of the British Academy 37, 47-55.
116
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 (3 February 2021) [65].
117
Australian Conservation Foundation Inc v Minister for the Environment [2021] FCA 550 (Perry J) (25 May
2021).

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proponent not in favour. Some are more equal than others. Whilst Adani spent a decade and a
reputed AUD 1 billion seeking approval fighting the Qld State Labor government and Green
Groups to gain approvals for its Carmichael Coal Mine,
118
Pembroke Resources was quickly
given approval by the Qld State Labor government for its Olive Downs coal mine and a federal
government loan to assist it develop the resource.
119
Like for for terrorism, immigration, and criminal offences, in Australia, resource approvals
appears to be a game of snakes and ladders. The favoured are helped up the rungs of the ladder.
Those not in favor continually slide down the snakes and can never make much progress. The
inescapable conclusion is that a deeply entrenched form of Schmiergeld operates. It is not
merely based on money, power, religion, and politics, but all of the above help. The executive
knows no restraint but continue the machinations of an Australian society that is deeply and
irretrievably corrupt – in the sense of not capable of not being corrupt. The doctrine of the
separation of powers is seen as an unnecessary impediment to the efficacious use of power by
executive agencies and at best only given lip service.
A tribal warlord feted for a complete disregard of the rule of law, would blush on realizing that
the tribal rules and customs observed in his polity are more fixed and certain that those
governing Australia under tribal Roman Catholicism.
118
P Manoj, ‘After a decade of fighting green groups, Adani set to begin work on Australian coal mine’, The
Hindu Business Line, online line at 11 June 2019 <https://www.thehindubusinessline.com/companies/after-a-
decade-of-fighting-green-groups-adani-set-to-begin-work-on-australian-coal-mine/article27776625.ece>.
119
Tobi Loftus, ‘Federal Government to loan Olive Downs coal mine project near Moranbah $175m’, ABC
News, online at 01 July 2021 <https://www.abc.net.au/news/2021-07-01/federal-government-to-loan-olive-
downs-coal-mine-175-million/100259414>.

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5. Upholding Human Rights.
It is difficult to characterise the political ‘move to the right’ of the ‘doctrine’ of the HCA
described above, as meaning anything other than that the HCA is now less likely to uphold any
‘values’ that might reflect the broader concern of the Australian community for civil and
political rights. The HCA has seldom done so. It is not the champion of Australian civil and
political rights. The HCA appears to see that as the role of the legislature, but has not otherwise
appeared reluctant to exercise its ‘legislative capacity’ in cases not dealing with civil rights.
120
The HCA just does not want to enter the civil rights arena. Not a point of principle, but of topic
head. The last significant case in the very slow crawl that might otherwise advance Australian
civil and political rights was Dietrich.
121
In this light, the score-card for the HCA for the year under review can be ‘balanced’ against a
list of the ‘rights’ most civilised societies regard as desirable. These rights are adumbrated
elsewhere,
122
but are listed in Table 2 below.
120
see Phillip Morris -v- Commissioner of Business Franchises [1989] 167 CLR 399; Street -v- Queensland Bar
Association [1989] 168 CLR 461; ACTU -v- Commonwealth (No. 2) 108 ALR 577; Mabo v Queensland (No 2)
(1992) 175 CLR 1.
121
(1992) 177 CLR 292.
122
Mark Clarkson, ‘Australian Values and the Criminal Law, LinkedIn, 9 May 2017
<https://www.linkedin.com/pulse/australian-values-criminal-law-mark-clarkson>.
Right Manqué
Contribution made by High Court of Australia
1 July 2019 to 30 June 2020.
Freedom from Arbitrary Arrest,
and Detention
Considered in Lewis v ACT [2020] HCA 26. Detention deemed unlawful,
but since imprisonment was inevitable, it did not matter.
Right to Bail
Not Considered
Limits to power of investigation
Considered in Zhang v Commissioner of Police [2021] HCA 16. Warrants
upheld. No injunction granted restraining use of the information obtained.
Considered in Roy v O’Neill [2020] HCA 45. Implied licence to enter
premises without a warrant by police officers, so they might undertake such
enquiries and observations of the Appellant as were necessary to ascertain
whether a DVO had been breached and an offence committed. No trespass
established. Convictions upheld.
Limits to attacks upon wives
and families of accused persons
by police and investigators
Not Considered
Restrictions on capacity to
present for trial
Not Considered
Right to Speedy Trial
Not Considered
Table 2. Rights Manqué and High Court Judgments, 01 July 2020 to 30 June 2021

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In the year under review there was only one judgment by the HCA – Roy v O’Neill
123
that
might in any way appear to be related to civil and political rights, and in that case an implied
licence to enter premises without a warrant by police officers could not be seen as advancing
them. No case illuminated the ‘instances of deliberate or advertent reckless disregard of a duty
or obligation’ coined in Pseudonyms v CDPP,
124
(whatever that may mean from time-to-
time),
125
but a new year has just commenced and we can all only hope that some amplification
of the phrase is yet to come. However, like Pell that case can also be regarded as one where
the HCA wanted to uphold an appeal for political reasons. Neither case should not be regarded
as a precedent of universal application. A different result may well have been presented had
the case involved mere common or garden variety criminals.
123
[2020] HCA 45.
124
[2018] HCA 53 [96]-[100].
125
For critiques of this case, see Mark Alfred Clarkson, ‘A short conspectus of Pseudonyms v CDPP [2018]
HCA 53’, ResearchGate (online), December 2018 <https://www.researchgate.net/publication/ 329328332_A_
short_conspectus _of_ Pseudonyms_v_CDPP_2018_HCA_53>; Mark Alfred Clarkson, ‘Pseudonyms v CDPP
[2018] HCA 53 – Standard of Proof’, ResearchGate (online), December 2018 <https://www.researchgate.net/
publication/329352297_Pseudonyms_v_CDPP_2018_HCA_53_-_Standard_of_Proof>.
Right to Counsel
Not Considered. The cases involving Nicola Gobbo, One of Her Majesty's
Counsel, One of Victoria Police’s Police Informers at Victorian Bar, must
be considered as works in progress and are presently the subject of further
investigations following a State Victoria Royal Commission (see below).
Trial by Jury
Not considered.
Defendant Right of Discovery
in Criminal Proceedings
Not Considered
Limits to the application of the
‘proviso’
Not considered.
Due Process/ Procedural
Fairness
Considered in GBF v The Queen [2020] HCA 40. Sexual offences.
Uncorroborated testimony of complainant. Appellant did not give evidence.
Trial Judge directed the jury that: “there is no evidence, no sworn evidence,
by the defendant to the contrary of her account. That may make it easier".
Appeal allowed. New trial ordered.
Considered in Peniamina v The Queen [2020] HCA 47. The partial defence
of provocation operates to reduce what would otherwise be murder to
manslaughter. Criminal Code (Qld) s 304. The burden of proof for the
defence is placed on the accused, but whether the defence allowed under s
304(3) applies is a matter of law, not a matter for the jury and not for the
accused to disprove. Appeal allowed. New trial ordered.

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6. Departures and Arrivals.
Grasping the Nettle.
During the year under review, the Honourable Justice Geoffrey Nettle AC QC retired from the
HCA bench. Early in his career, a young Geoffrey Nettle, then of Counsel appeared for the
Office of Corrections against the author in the Full Court of the Supreme Court of Victoria. He
ran flustered late into the fray, dropped all his papers on the floor and whilst on his hands and
knees gathering them up, explained to Sir John Young, as he then was Chief Justice of the
Supreme Court of Victoria, that he had only just picked up the brief and was attempting to
grasp the Nettle of the matter.
No one laughed!
Geoffrey Nettle has now been appointed ‘Special Investigator’ to consider whether criminal or
disciplinary charges are warranted in response to the matters uncovered by the Royal
Commission into the Management of Police Informants (‘RCMPI’),
126
which examined the
machinations of the corrupt cartel including Gobbo, Victoria Police, and the prosecutors and
Judges particeps criminis in her offending and recommended that the matter be investigated.
We can only trust that for the role as Special Investigator, Geoffrey will be able to grasp the
Nettle completely and quickly.
This appointment follows the earlier appointment of New Zealand Labour Identity Sir David
Carruthers KNZM as ‘Implementation Monitor’, to ‘ensure [RCMPI] recommendations are
delivered in a transparent and timely manner, providing oversight and accountability as we
move through the implementation process’.
127
Sir David is somewhat unkindly referred to as
‘Budgie’ in legal circles.
128
126
The Hon Daniel Andrews, Premier of Victoria, ‘Former High Court Judge Appointed As Special
Investigator’ (Media Release, 30 June 2021) <https://www.premier.vic.gov.au/former-high-court-judge-
appointed-special-investigator>.
127
The Hon Daniel Andrews, Premier of Victoria, ‘Royal Commission Implementation Monitor Appointed’
(Media Release, 01 March 2021) <https://www.premier.vic.gov.au/royal-commission-implementation-monitor-
appointed>.
128
Jock Anderson, 'A His and Hers tale of two judges', NBRNZ, online at 16 April 2012
<https://nbr.co.nz/.../his-and-hers-tale-two-judges-ja-116708>.

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The cynical (including the author) might consider these incentives as taken from the textbook:
‘How to bury a scandal 101’ apparently penned by Sir Humphrey Appleby GCB KBE MVO.
First hold a Royal Commission to investigate the matter, which recommends that the matter be
investigated. Then appoint an Independent Implementation Monitor to oversee the
implementation of the recommendation to investigate. A Special Investigator reporting to the
Independent Implementation Monitor then investigates, but is almost certain to recommend
that the Director of Public Prosecutions then investigates the product of the investigation to
determine whether any criminal charges are feasible.
On the appointment of Geofrey Nettle, Victorian Attorney-General Jaclyn Symes said: “We’re
getting on with the work of restoring the integrity of the justice system by implementing the
Royal Commission’s recommendations – ensuring our justice system has Victorians’
confidence and trust”.
129
She added that Nettle would now commence preparations for his role.
No doubt those 'preparations' will include Geoffrey's legendary penchant for polishing the soles
of his shoes. Whilst no one has ever offered any insight into why he does that, it might make it
easier for him to skate over issues!
Again the cynical (including the author) may feel that Geoffrey Nettle was appointed as a
former HCA judge to add the imprimatur of the HCA to a decision-making process that
demands that all those imprisoned as a result of the conduct of the corrupt cartel remain in
prison at least until their sentences have been served in full, and that the HCA is never
embarrassed by having to rule on the legality of the means used to obtain the convictions
against them or define what due process of the law really means in Australia. To that end
Geoffrey Nettle’s Secret Commission à huis clos maybe to ensure that the scandal remains
wholly within the confines of the Victorian court system.
“Ensuring our justice system has Victorians’ confidence and trust” may merely mean allowing
enough time to pass to allow all the perpetrators and stakeholders to grow too old to care
anymore, and the public-at-large to become weary of the matter and saturated with other
concerns.
129
Melissa Coade, ‘Geoffrey Nettle picked to deliver on Victoria’s management of police-informants inquiry’,
The Mandarin, online at 30 June 2021 <https://www.themandarin.com.au/161539-geoffrey-nettle-picked-to-
deliver-on-victorias-management-of-police-informants-inquiry/>.

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The Margravess Gleeson.
During the year under review, after seven years on the Federal Court bench, the Honourable
Justice Jacqueline Gleeson SC was appointed to the HCA (March 2021) apparently as Chief
Justice Manqué to be elevated to that position on the retirement of the incumbent the
Honourable Chief Justice Susan Kiefel AC.
Jacqueline Gleeson was a somewhat surprising appointment. She has little trial experience.
Almost no criminal law experience. She appeared at the bar in no cases of any note. She has
written no articles of any great legal moment. A conspectus of her curriculum vitae appears to
indicate a rather mixed bag of employment as a solicitor, barrister, in-house counsel at the
Australian Broadcasting Authority and as a senior executive lawyer with the Australian
government solicitor. She never sat on the appeals courts of any of the states where the
jurisprudentes opine the ‘real law’ is promulgated in Australia.
However, Jacqueline Gleeson is apparently able to recite off by heart her Father's missive on
‘rights and values’.
130
The appointment of Jacqueline Gleeson was apparently orchestrated by
the notorious ‘gang of five’ to ensure that Roman Catholic ‘values’ continue to take the place
of human rights in the Australian legal system. The equally notorious ‘balancing’ approach to
due process of the law will no doubt continue under her reign.
In the year under review in Namoa v The Queen,
131
Gleeson J delivered the judgment finding
that for the purposes of the Criminal Code (Cth) s 11.5(1) a husband and wife are each a
"person" and can be guilty of the statutory offence of conspiracy with each other. The judgment
is unremarkable save for the apparent deference accorded to Gleeson J by the other members
of the bench. The initial section of the report records:
1. KIEFEL CJ. I agree with Gleeson J.
2. GAGELER J. I agree with Gleeson J.
3. KEANE J. I agree with Gleeson J.
4. GORDON J. I agree with Gleeson J.
130
The Honourable Murray Gleeson AO QC, above N 28.
131
[2021] HCA 48.

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5. EDELMAN J. I agree with Gleeson J.
6. STEWARD J. I agree with Gleeson J.
7. GLEESON J. [Judgment]
Of course, the apparent acquiescence may merely be her fellow justices indicating that as a
new appointment Gleeson J does not need training-wheels, but it could also be virtue signaling
that they recognize the political and religious standing of a Chief Justice in waiting.
In any event it is seldom that all seven justices of the HCA have nothing more to say than “I
agree”. In the past it appeared that the members of the HCA could not agree in unison about
what time morning tea should be served. Certainly, the attempts by the incumbent Chief Justice
to engage in ‘cuppa conciliation’ or ‘collaborative decision-making’ in order to produce joint
judgments appeared to lack any great success – despite some initial promise.
132
It is too late for Australia where the process of Roman Catholicization is complete. However,
Americans should learn the lessons well from observing the corrosive effect Roman Catholic
law and doctrine has had on the Australian ‘Kangaroo Court’ justice system and fiercely resist
the appointment of any further Roman Catholics to the Supreme Court of the United States
(‘Scotus’). As observed in the author’s 2020 missive,
133
the Roman Catholics decrying their
minority voice on Scotus are now silent. Why? Because they are now in the majority. The
corrosive destruction of due process of the law in America which commenced with Hudson v
Michigan
134
once Roman Catholics became dominant, will continue unabated if Roman
Catholics continue to hold a majority on Scotus.
132
Andrew Lynch, ‘Opinion Consensus rules in Kiefel's first year as Chief Justice’, UNSW Newsroom, online at
23 February 2018 <https://newsroom.unsw.edu.au/news/business-law/consensus-rules-kiefels-first-year-chief-
justice>.
133
Mark Alfred Clarkson, ‘Reflections on Appointments to the Supreme Court of the United States: Applying
the Lessons learned in Australian “Kangaroo Courts”’, ResearchGate, online at October 2020
<https://www.researchgate.net/publication/344537269_Reflections_on_Appointments_to_the_Supreme_Court_
of_the_United_States_Applying_the_Lessons_learned_in_Australian_%27Kangaroo_Courts%27>.
134
200 US 321 (2006).

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7. Conclusions and Observations.
Australian courts have become impervious to concepts of justice held by the international
community. Appeals to the Judicial Committee of the Privy Council are no longer available.
Applications to the United Nations Human Rights Committee are an exercise in futility because
if a litigant obtains a judgment that Australia does not favour, it is simply ignored. Animals
isolated on islands become either very large or very small versions of their species. Isolated on
its own judicial island, Australian jurisprudence has become a dwarf.
Mark Alfred Clarkson, LL B, LL M, MPPM, MBA, Grad Dip ALLN, Grad Dip Mining.
04 July 2021

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References.
Legislation.
Charter of Human Rights and Responsibilities Act 2006 (Vic).
Commonwealth of Australia Constitution Act 1900 (Imp).
Constitution Act 1975 (Vic).
Constitution (Appointments) Act 2009 (Vic).
Constitution (Council Vacancies) Act 1984 (Vic).
Constitution (Supreme Court) Act 1989 (Vic).
Crimes Act 1958 (Vic).
Criminal Procedure Act 2009 (Vic).
Evidence (Miscellaneous Provisions) Amendment (Affidavits) Act 2012 (Vic).
Human Rights (Sexual Conduct) Act 1994 (Cth).
High Court Rules 2004 (Cth).
Imperial Acts Application Act 1969 (NSW).
Imperial Acts Application Act 1980 (Vic).
Judiciary Act 1903 (Cth).
Major Crimes (Investigative Powers) Act 2004 (Vic).
[1297] 25 Edward I c. XXIX (Magna Carta).
[1627] 3 Charles I (Petition of Right) c. I
[1640] 16 Charles I c. X (The Habeas Corpus Act).
[1679] 31 Charles II c. II.
[1688] 1 William and Mary Sessions II c. II (The Bill of Rights).
[1816] 56 George III c. C.
United States Constitution.

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International Instruments.
International Covenant on Economic, Social and Cultural Rights, open for signature 19
December 1966, 999 UNTS 3 (entered into force 03 January 1976).
Optional Protocol to the International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
Toonen -v- Australia [1994] 1 PLPR 50 Communication No 488/1992, UN Doc
CCPR/C/50/D/488/1992, 4 April 1994.
Cases.
ACTU -v- Commonwealth (No. 2) 108 ALR 577.
Adler v District Court [1990] 19 NSWLR 317.
Antunovic v Dawson (2010) 30 VR 355.
Australian Conservation Foundation Inc v Minister for the Environment [2021] FCA 550.
Bui v DPP (Cth) (2012) 244 CLR 638.
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54.
Chamberlain v The Queen [No 2] (1984) 153 CLR 521.
Chidiac v The Queen (1991) 171 CLR 432.
Dietrich -v- The Queen (1992) 177 CLR 292.
DPP v Marijancevic & Ors [2011] VSCA 355.
Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956)
94 CLR 554.
Em v The Queen [2007] HCA 46.
GBF v The Queen [2020] HCA 40.
Glennan v Commissioner of Taxation (2003) 198 CLR 250.
Hudson v Michigan 200 US 321 (2006).
In re Judiciary and Navigation Acts (1921) 29 CLR 257.
Ireland v R [1970] HCA 21; (1970) 126 CLR 321.
Jago v District Court (1989) 168 CLR 23.

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Kadir v The Queen; Grech v The Queen [2020] HCA 1.
Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1.
Lewis v ACT [2020] HCA 26.
M v The Queen (1994) 181 CLR 487.
Mabo v Queensland (No 2) (1992) 175 CLR 1.
McCawley v R (1918) 26 CLR 9.
Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
Mokbel v DPP (Cth) [2021] VSCA 94 (16 April 2021).
Momcilovic v The Queen (2011) 245 CLR 1.
Moti v The Queen [2011] HCA 50.
Namoa v The Queen [2021] HCA 48.
Nicholas v R [1998] HCA 9; (1998) 193 CLR 173
Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd [2021] HCA 2 (3 February
2021).
Pearce v The Queen (1998) 194 CLR 610.
Pell v The Queen [2020] HCA 12 (7 April 2020).
Peniamina v The Queen [2020] HCA 47.
Petty and Maiden v The Queen [1991] HCA 34; (1991) 173 CLR 95.
Phillip Morris -v- Commissioner of Business Franchises [1989] 167 CLR 399.
Pollard v R [1992] HCA 69; (1992) 176 CLR 177.
Private R v Cowan [2020] HCA 31.
Pseudonyms v CDPP [2018] HCA 53
R v Borg (Ruling No.1) [2012] VSC 26.
R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82.
R v Ibrahim [1987] 17 A Crim R 460.

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R v Swaffield and Pavic [1998] HCA 1; (1998) 192 CLR 159.
Re Golding [2020] 38.
Re Heerey; ex parte Heinrich (2001) 185 ALR 106.
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) CLR 372.
Ridgeway v R [1994] HCA 33; (1995) 184 CLR 19.
Roy v O’Neill [2020] HCA 45.
Singh v The Queen [2020] HCA 25.
Street -v- Queensland Bar Association [1989] 168 CLR 461.
The Queen v Abdirahman-Khalif [2020] HCA 36.
The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49.
Zhang v Commissioner of Police [2021] HCA 16.
Articles and other Media.
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