A Barrister's Blog

Justice Leeming from the NSW Court of Appeal is a well known and highly regarded equity lawyer and one of the current authors of Meagher, Gummow and Lehane’s equity textbook. His honour also has a PhD in pure maths. When he brings his intellect to bear on matters in the Court of Criminal Appeal there are sometimes some very interesting judgments, of which Ghamrawi v R [2017] NSWCCA 195 is one. Leeming JA traced the development of the common law of “breaking” (as in ‘break and enter’) from the 17th century through to today. I didn’t know (at least until recently) that:

• An actual breaking requires, broadly, that [the accused] interfere with the building’s physical security, in a recognised way;
• Or as Blackstone put it: “There must be an actual breaking; not a mere legal clausum fregit, (by leaping over invisible ideal boundaries, which may constitute a civil trespass) but a substantial and forcible irruption. … if a person leaves his doors or windows open, it is his own folly and negligence; and if a man enters therein, it is no burglary“;
• It follows that: “To enter or depart through an open door or window is not a breaking. To open a closed though unlocked door or window is a breaking. Where a door, window, or other point of entry is partly open it is not a breaking to widen the opening for purposes of entry. However, it is a breaking if to do so involves tampering with some fastening device.”; and
• There is also a species of “constructive breaking” where permission to enter is granted but as a result of some “artifice, trick or threat”. An example is given of the 1952 UK case in which Mr Boyle pretended to be from the BBC and entered the house to “inspect” the radio (the good old days of radio licences).

There are other complicating issues about express or implied consent and the overlap with the law of trespass. If you do like a bit of legal history this case should be near the top of your self isolation reading list.

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What use would a 30 June post be if it wasn’t about tax? Many of us probably remember the deals that were done

between the Commonwealth and the States when the GST was introduced (20 years ago tomorrow). A number of state imposts (remember FID on deposits?) were abolished in exchange for a share of GST revenue.

I had forgotten that the Commonwealth hasn’t always been in charge of income tax. After federation and up until WW2 the states levied income tax at different rates under different administrative regimes and each with under their own legislation. It also created some interesting jurisdictional issues. For instance: was Alfred Deakin’s salary as a minister of the Commonwealth, so far as it was earned in Victoria (where he was resident) subject to Victorian income tax? The High Court applied D’Emden v. Pedder (i.e. a state law can’t interfere with the executive power of the Commonwealth) and answered “no” (see Deakin v Webb (1904) 1 CLR 585).

If that wasn’t bad enough, imagine the negotiations that went on in 1942 when the Commonwealth needed war finance and suggested that the states vacate the income tax field for 2 years and allow the Commonwealth to be the sole income tax collector. Compensation was to be paid. Perhaps not surprisingly, the states were suspicious and rejected the proposal. That was to no avail when the Commonwealth passed four acts which imposed a uniform tax scheme (exercising “might of way”). Constitutional issues over which power was being used as a basis for the scheme (was it the taxation power or the defence power?) arose…. you can read the High Court’s decision in the  First (yes, there was a second one) Uniform Tax Case for yourself (1942) 65 CLR 373.

Who would have thought that tax history could be interesting ….. happy new financial year.

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Breath testing laws have been with us in all states in territories for a long time. In the ACT it is an offence if someone who has been the driver of a motor vehicle on a road or a road related area refuses to provide a sample of breath for analysis (s22 Road Transport (Alcohol and Drugs) Act 1977).

So, what was controversial about Mr Gonyley’s  conviction for refusing a breath test as he got out of the driver’s side of his car in the carpark of Jerilderie Court and why did he appeal to the ACT Supreme Court? On reading the judgment, it was clear that one of the issues was whether the car park as a “road related area”. There is a definition of “road related area” in the Road transport Act. Relevantly it includes “an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles”. There is caselaw on the meaning of that phrase and ones similar to it. There is also a statutory definition of “public place”. The judgment traverses all these issues and also the usual cases on statutory construction.

All the while, I was still puzzled about how the carpark at Jerilderie Court couldn’t possibly be a public place and road related area. Then the penny dropped (doh!) that Jerilderie Court is a public housing apartment building in the ACT suburb of Reid (not the Local Court at Jerilderie). The building is apparently notorious (google is my friend) for being the residential address of several local drug dealers.

Ultimately Mr Gonyley won his appeal,  but not on the “high brow” basis of statutory construction or consideration of the meaning of the various phrases. The Supreme Court found that the Magistrate had fallen into error because there was insufficient evidence to prove beyond reasonable doubt that the Jerilderie Court carpark was a road related area.

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There have been a few things happen during the current Covid19 outbreak which have made me ponder the underlying legal issues. As a result, I was very interested when I read Professor Natalie Klein’s (UNSW academic) article in the Conversation about international law obligations in respect of cruise ships. That article has inspired this post.

Like many issues, the Ruby Princess saga is more complicated that it might first appear. On one hand, Australia has (through the Navigation Act and Marine Order 11) implemented the Maritime Labour Convention. That means that seafarers (on all ships in our territorial waters) who are in need of immediate medical care are to be given access to onshore medical facilities. This explains the enthusiasm of the authorities to get the ship out of our territorial waters.

That seems clear enough, but there’s more. Australia as a sovereign state can generally control which vessels enter its ports. There is an exception to this rule which allows vessels in distress to dock. There is apparently an exception to the exception if a ship poses “a serious and unacceptable safety, environmental, health or security threat” (like in a pandemic for instance?). It’s also not clear to me how the Biosecurity Act might affect that obligation.

But what does distress mean? There is some early nineteenth century common law that it means imminent danger of a kind that would produce “on the mind of a skilful mariner, a well-grounded apprehension of the loss of vessel and cargo, or of the lives of the crew”. Traditionally this meant things such as a broken mast, or damaged sails or engine problems. So, what about on a cruise ship with a crew of about 1000? Some of those crew are on board to run the ship and others are there to serve the passengers. Professor Klein says distress would be easier to make out if those running the ship were unable to do so because they were sick.

Most (in)famously, in 2001, distress was invoked by Arne Rhinnan (the captain of the Tampa) to defy Australia’s threats of fines and imprisonment when he sailed into Australian waters and set anchor a few km off Christmas Island (because there were no facilities on the island to cope with a ship of that size). The distress he relied on was that he had insufficient food, water and medical facilities for his 438 newly acquired asylum seeker passengers (which he had taken on board under a duty to rescue and at Australia’s request). Apart from the diplomatic incident, the end result of his actions were that Captain Rhinnan received Norway’s highest civil honour for his handling of the situation and Australia ended up with a harsh “turn back the boats” border protection policy.

All that makes wish that I had taken “law of the sea” as an elective after all!

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My dark sense of humour found the facts of Ex parte Musgrove; Re Howard (1961) 78 W.N Feb 15 at 88 amusing….

At 9:15pm on 26 January 1960, Sergeant Howard from Kandos police came across Mr Musgrove standing beside his upside down car off the road on the eastern side of Davies Road. Mr Musgrove couldn’t offer any explanation for how he got off the bitumen and on to the gravel on the right hand side (which I assume is the “wrong” side) of the road.

Mr Musgrove was charged with driving a motor vehicle negligently on a public street. Although I have some sympathy for the magistrate who applied (in the absence of an explanation) res ipsa loquitor  and convicted him.  The problem is that he ignored the golden thread of english criminal law that it is the duty of the prosecution to prove the prisoner’s guilt….no matter what the charge or where the trial (Woolmington v DPP). The conviction was overturned (like the car) on appeal and the case is now authority for the proposition that res ipsa loquitor doesn’t apply in criminal law.

Another interesting anecdote about this case is that Mr Musgrove was represented by W. P. Deane. That would be William Patrick Deane, who started practice at the Sydney bar in 1957, en route to his appointments to the High Court and subsequently as Governor General.

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Many of you would have seen (as I have) some of the video clips of deserted streets and highways in what would otherwise be bustling Chinese cities that are now in shut down. More worryingly, you may also have seen videos of people being forcibly removed from their apartments and being bundled into white vans by security people in hazmat suits. My first reaction to some of those measures was surprise at how heavy handed these were. Surely it was a Chinese over-reaction?

Unfortunately, it appears that it’s not. In 2015, the antiquated 1908 Quarantine Act was replaced by the Bio-Security Act. Large parts of that act fall under the agriculture portfolio. I get it, we live on an island, agriculture is important and pests and diseases need to be kept out. However, as well as various “bio-security measures” the act also provides for human bio-security control measures which could come into effect if a human bio-security emergency is declared. There are accompanying human bio-security emergency powers which can be then be exercised by the Minister for Health.

If you end up becoming subject to a human bio-security control order you can: be required to provided information (s 85); be restricted in your movements (or confined to home)(s 87); be required to undergo decontamination (s 89); be required to submit to an examination (s 90) or provide body samples (s 91); or be required to receive a vaccine or medication (ss 92 and 93). However, you will be pleased to know that the use of force in administering this provisions is not allowed (s 95), but you can be detained if you don’t comply. If you are detained the amount of force used should not subject you to “greater indignity, than is necessary and reasonable to detain the detainee or prevent the detainee from escaping” (see ss103-104).

We might be a little way off being forcibly detained by people in hazmat suits, but it is a (lawful) possibility. Interesting, the health department has already issued an emergency response plan. Let’s hope that Australia manages to manage the spread of the corona virus.

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