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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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45 B A L A N C E M A R C H 2 0 1 8 C R I M I N A L L A W Murder and manslaughter Intention and wilful acts In Koani v The Queen [2017] HCA 42 (18 October 2017) the deceased was killed by a single shot from a shotgun that had been loaded by the appellant, given to the deceased and almost fully cocked. The gun was modified such that it could go off when not fully cocked. The trial judge did not leave murder to the jury because he considered that the act causing death in a firearm case must be a deliberate act. The judge left the alternative case to the jury, that the accused would be guilty of murder if the accused failed to use reasonable care in the management of the gun at a time when he intended to kill or inflict grievous bodily harm. The appellant was found guilty. The High Court held that it was an error to leave the alternative case to the jury, because the act causing death and the required intention must coincide. On the alternative case, the intention occurred at a different time to the omission (the failure to use reasonable care) that caused the deceaseds death. The Court also held that it would be open to a jury to conclude that the loading of the gun, presenting it and pulling back the hammer were all connected, willed acts that caused the deceaseds death. The primary case could have been left to the jury. Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ jointly. Appeal from the Court of Appeal (Qld) allowed. A D M I N I S T R A T I V E L A W Appeal from Supreme Court of Nauru Migration In BRF038 v The Republic of Nauru [2017] HCA 44 (18 October 2017) the High Court held that the Supreme Court of Nauru failed to accord the appellant procedural fairness. The appellant applied for refugee status in Nauru. The application was refused by the Secretary of the Department of Justice and Border Control of Nauru. An appeal to the Refugee Status Review Tribunal (RSRT) was dismissed. An appeal to the Supreme Court was also dismissed. The appellant argued that the RSRT had erred by applying the wrong test for persecution, by requiring a total deprivation of human rights; and by failing to accord procedural fairness, by failing to put to him country information about the tribal make-up of the police force in his home country. Procedurally, the High Court held that the Supreme Court was exercising original jurisdiction, meaning that an appeal to the High Court lay as of right. The Court rejected the wrong test argument, holding that the RSRT was not articulating an exhaustive test. However, the information about the police was integral to the reasons for refusing the application, and a failure to bring it to the appellants attention was a breach of procedural fairness. The decision was quashed and sent back to the RSRT for reconsideration. Keane, Nettle and Edelman JJ jointly. Appeal from the Supreme Court (Nauru) allowed. JANUARY/FEBRUARY C O N S T I T U T I O N A L L A W Section 44(i) Parliamentary elections Qualification to be elected In Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017) the High Court considered the proper interpretation of s 44(i) of the Constitution and whether persons referred to the Court were incapable of being chosen or sitting as a Senator or Member of Parliament. The ultimate question was whether any of the referred persons were under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power as at the time of their nomination to the Parliament. Four different constructions of s 44(i) were argued. Three of those impliedly included a mental element informing the acquisition or maintenance of foreign citizenship, but varied with respect to the degree of knowledge required and whether a voluntary act of acquiring or retaining foreign citizenship was necessary. The Court rejected those approaches, holding that knowledge of foreign citizenship was not required for a person to come within s 44(i). The Court also held that the reasonableness of steps taken by candidates to inquire as to whether their personal circumstances gave rise to disqualification under s 44(i) was immaterial to the operation of s 44(i). The only question was whether a person had the status of foreign subject or citizen, as determined by the law of the foreign power in question. If a person had that status when they nominated, they would be disqualified unless the foreign law in question is contrary to the constitutional imperative that an Australian citizen not be irremediably prevented from participation in representative government. That exception is engaged where a person can show that they took all steps within their power and that are reasonably required by the foreign law to renounce his or her citizenship. The Court went on to apply these principles to the facts of the references. The Court held that Mr Ludlam, Ms Waters, Senator Roberts, Mr Joyce MP and Senator Nash were disqualified; Senator Canavan and Senator Xenophon were not disqualified. Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ jointly. Answers to Questions Referred given.