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Part 1: Spotlight on 7 landmark cases

It was another good year for high-profile cases reported in the media in 2016, writes Carl Olson.

In the first of two articles in this series, we lift out three cases, two with important legal ramifications and another that hasn’t changed the law much, but has seized the public imagination and indignation.

Intending to be reckless? Best to be reckless without any intention

In Zaburoni v The Queen (2016) 256 CLR 482, the High Court emphasised the importance of distinguishing between reckless behaviour and behaviour involving intention to transmit HIV.

The appellant, Mr Zaburoni, was found guilty of unlawfully transmitting a serious disease with intent to transmit the disease contrary to the Criminal Code (Qld), s 317(b).

Mr Zaburoni knew not to engage in sexual intercourse without taking protective measures, however he persuaded the complainant to engage in unprotected sex over a protracted period. After the complainant was diagnosed as HIV-positive, the appellant told a number of lies both to her and to the police which suggested consciousness of guilt.

The High Court held that common law concepts of foreseeability, likelihood and probability were not relevant to proof of the element of intention for the offence created by the Criminal Code, s 317(b).

Where proof of the intention to produce a particular result is an element of liability for an offence under the Code, the prosecution is required to establish that the accused has meant to produce that result by his or her conduct. Knowledge or foresight of the result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code. Proof of the s 317(b) offence required the prosecution to establish beyond reasonable doubt that, at the time the appellant engaged in unprotected sexual intercourse with the complainant, his purpose was to transmit HIV to her.

A rational inference open on the evidence was that the appellant was reckless of the risk of transmitting HIV to the complainant. Such an inference made it less easy to reach a conclusion that the appellant intended to transmit the disease through frequent unprotected sexual intercourse.

The High Court dismisses our collective gasps

Many people who have forgotten to make their credit card payment in time have gasped at the late payment fee that is imposed. In Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835, the High Court was asked to hear our collective gasps. They heard, but weren’t impressed.

The appellant, a business owner and head of the representative proceeding, argued that various late payment fees were penalties and/or unconscionable or unfair, and contrary to various provisions of the Australian Securities and Investments Commission Act 2001 (Cth), the Australian Consumer Law and the National Consumer Credit Protection Act 2009 (Cth).

However, the High Court found that the appellants had failed to establish that the late payment fees were a penalty and that the relevant test was whether a provision for the payment of a sum of money on default was out of all proportion to the interests of the party intended to be protected by that provision. A sum stipulated for payment on default is a penalty if it bears no relation to the possible damage to or interest of the innocent party. Here, ANZ Bank had an interest in receiving timely payment of the credit extended to its customers. Late payment impacted the bank’s interests through operational costs, loss provisioning and increases in regulatory capital costs.

It was also noted that Mr Paciocco had chosen to pay late and incur late payment fees as a matter of his own convenience.

Grasping for a Gold Card – politicians try ‘The Castle’ defence to get their ‘property’ back

In Cunningham v Commonwealth (2016) 90 ALJR 1138, the High Court was asked to decide whether four retired politicians had had their property acquired otherwise than on just terms when their travel benefits were removed.

The challenge, under the Constitution, s 51(xxxi), drew comparisons with the popular 1997 Australian film The Castle, where that section of the Constitution was used to stop a family home being acquired to extend an airport runway.

The four retired MPs challenged the validity of various provisions of statutes related to their retirement allowances and travel benefits (‘Life Gold Passes’) for former parliamentarians and also of the powers of the Remuneration Tribunal. The plaintiffs contended that those allowances amounted to property rights within the meaning of the Constitution, s 51(xxxi), and that changes to those provisions and the connected tribunal determinations constituted or authorised the acquisition of their property otherwise than on just terms.

The High Court held that neither the sections under challenge nor the determinations contravened the requirements of s 51(xxxi) as the rights to retirement allowance under the Parliamentary Contributory Superannuation Act 1948 (Cth) were inherently liable to variation, being dependent on the ambulatory will of the Commonwealth Parliament.

Carl Olson is an ANZ product management director at Thomson Reuters Legal.

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