The latest from the High Court: October 2015

Criminal law

Limits of discretion to exclude evidence to avoid miscarriage of justice

In Police v Dunstall [2015] HCA 26 (5 August 2015) it was noted that the Full Court of the Supreme Court SA in R v Lobban (2000) 77 SASR 24 recognised a discretion to exclude evidence untainted by illegality or impropriety where admission of the evidence would render the trial of an accused an unfair trial.

D was detected driving a vehicle with a blood alcohol content revealed by a police breathalyser to exceed the prescribed amount. D was taken by the police to a hospital where a blood test was taken.

At the hearing before a magistrate D pleaded not guilty. In answer to the certificate of the police operator (which created a statutory presumption of the level of blood alcohol content) D would have relied on the analysis of his blood sample taken at the hospital. Evidence was given that due to an error at the hospital insufficient blood was taken and the sample was denatured.

The magistrate relied on the Lobban discretion to conclude the medical error had denied D the opportunity to challenge the police evidence and this rendered the trial unfair unless the police evidence was excluded. The Magistrate excluded the certificates and D was acquitted.

An appeal by the police to the Supreme Court (SA) was dismissed as was an appeal to the Court of Appeal (SA) (by majority). The appeal by the police to the High Court was allowed by all members: French CJ, Kiefel, Bell, Gageler and Keane JJ jointly; sim Nettle J. The Court concluded questions of unfair evidence were properly addressed by determining whether the circumstances warranted a permanent stay. Appeal allowed. Matter remitted to magistrate.

Criminal law

Practice – juries – jury disclosing its voting results to trial judge – whether judge required to disclose this to parties

In Smith v The Queen [2015] HCA 27 (5 August 2015) a deadlocked jury, in referring questions to the trial judge, disclosed its interim voting results. The trial judge dealt with the questions referred but did not disclose to the prosecution or the defence the revealed voting results. All members of the High Court (French CJ, Kiefel, Bell, Gageler and Gordon JJ) concluded in a judgment (delivered by Gordon J) that this did not result in an unfair trial. Appeal dismissed.

Income tax

Deductions – whether payment on income or capital account

In AusNet Transmission Group Pty Ltd v Federal Commissioner of Taxation [2015] HCA 25 (5 August 2015) the taxpayer acquired the assets of a Victorian state-owned electricity transmission company in 1997. The sale agreement required the taxpayer/purchaser to pay additional charges as imposed by notices under s 163AA of the Electricity Industry Act 1993 (Vic) in addition to the price. The taxpayer made the payments and then self amended its tax returns for 1999 to 2000 to claim the payments as a tax deduction. These claims were disallowed in amended assessments issued in 2008 and objections to these assessments were disallowed in 2012.

The taxpayer’s appeal under s 14ZZ of the Taxation Administration Act 1953 (Cth) to the Federal Court was dismissed at first instance and on appeal. The taxpayer’s appeal to the High Court was dismissed by a majority who concluded the charges were on capital account for s 8-1 of the Income Tax Assessment Act 1997 (Cth) and not deductable from income: French CJ, Kiefel, Bell JJ jointly; sim Gageler J; contra Nettle J. Appeal dismissed.