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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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N O T I C E B O A R D L A W S O C I E T Y N T M I G R A T I O N L A W Complementary protection Meaning of significant harm Intention In SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (6 September 2017) the Court considered the requirements of intention for the purposes of assessing an applicants case against the complementary protection provisions in s 36 of the Migration Act 1954 (Cth). Those provisions allow for a protection visa to be granted to a person at real risk of suffering significant harm if returned to their home country. Significant harm includes being subject to cruel or inhuman treatment or punishment, or degrading treatment or punishment. The appellants had both claimed to be at risk of harm if they returned to Sri Lanka. The Refugee Review Tribunal (RRT) found that, if they were returned, they would likely be held in prison for a short time. It also accepted that prison conditions in Sri Lanka were such that the appellants might be subjected to pain, suffering or humiliation. However, the RRT found that there would be no intention in Sri Lankan authorities to inflict the pain or suffering. The question on appeal was whether intention in this context requires subjective intention or whether it was sufficient that a person doing an act knew the act would, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation recklessness sufficed. A majority of the Court held that actual subjective intention to bring about pain or suffering or humiliation was required. Kiefel CJ, Nettle and Gordon JJ jointly; Edelman J separately concurring; Gageler J dissenting. Appeal from the Full Federal Court dismissed. C R I M I N A L L A W Incitement to procure offences In The Queen v Holliday [2017] HCA 35 (6 September 2017) the accused was serving a sentence for sex offences and was alleged to have offered another inmate, Powell, a reward in return for the inmate organising third parties outside the prison to kidnap two witnesses, procure statements exculpating the accused, then kill the witnesses. Powell reported this and did not go through with the plan. Counts 4 and 5 charged that Holliday committed the offence of incitement in that he urged [Mr Powell] to kidnap each witness. The jury convicted on those counts. The conviction was overturned on appeal; the prosecution appealed to the High Court. The issue was whether Holliday could be guilty of the offence of inciting another (Powell) to commit an offence given that the plan was for Powell to procure a third party to carry out the kidnapping. The High Court held that, at least where there had been no kidnapping, Holliday could not be convicted of urging Powell to commit that offence. A majority of the Court held that incitement requires the accused to urge a person to commit a discrete, substantive offence. However, there is no discrete offence of incitement to procure. Holliday could not, in the circumstances, be convicted of incitement. Kiefel CJ, Bell and Gordon JJ; Gageler J and Nettle J separately concurring in the orders of the majority. Appeal from the Supreme Court (ACT) dismissed. C R I M I N A L L A W Criminal procedure Jury directions Standard of proof The Queen v Dookheea [2017] HCA 36 (13 September 2017) concerned directions to the jury as to the standard of proof required to convict in a criminal case. The accused admitted that he had killed the deceased, but argued that he did not have the requisite intent. In the course of summing up to the jury, the trial judge stated that they needed to be satisfied of the accuseds guilt not beyond any doubt, but beyond reasonable doubt. On a number of occasions, the trial judge also used only the phrase beyond reasonable doubt. The Court of Appeal held that by referring to not beyond any doubt, the trial judge had erred in summing up. The High Court unanimously allowed the appeal. The Court held that what is a reasonable doubt is a question for the jury. It is generally undesirable to contrast any doubt with reasonable doubt, but as a matter of principle it is not wrong to notice the distinction. Whether such a reference gives rise to error depends on all of the context. In this case, having regard to the circumstances, including the whole summing up and addresses, it could not realistically be supposed that the jury might have been left in any uncertainty as to the true meaning of the need for proof beyond reasonable doubt. Kiefel CJ, Bell, Gageler, Keane, Nettle, and Edelman JJ jointly. Appeal from the Court of Appeal (Vic) allowed.