Supreme Court roundup 3 - 9 September 2021
Decisions, proceedings and news from the highest courts in some common law jurisdictions in the past week.
Successful leave application - Approved question whether CA correct to dismiss appeal – Appeal related, to Agreement that H would M a commercial property – SC said would be assisted by argument about circumstances in which a breach of the obligation to provide reasonable access to premises might defeat the right to avoid the agreement. Could include whether it would be sufficient to show a breach of that obligation in respects material to confirmation or waiver by the applicant of the relevant condition, or whether would be necessary to prove counterfactual - Counsel also asked to address whether or not breach of the obligation to provide reasonable access to the premises would sound only in damages, leaving the avoidance of the contract in place – SC said by raising particular points did not intend to constrain argument on other points approved question raised -Leave granted.
Successful applications for leave to appeal and cross-appeal - Leave intended to encompass all of the questions raised in the notices of application for leave to appeal and cross appeal and in the submissions for leave to appeal and cross appeal – Application granted.
Unsuccessful appeal from Victorian CA - Section 17 of the Crimes Act provided that a person who, without lawful excuse, recklessly caused serious injury to another person was guilty of an indictable offence - In February 2017, an accused was charged under s 17 - During the trial, the trial judge declined to direct the jury according to a New South Wales case (Aubrey) rather than a previous Victorian case (Campbell) – Jury acquitted accused - DPP referred the correctness of Campbell as a point of law to CA for its opinion - CA unanimously decided that unless and until it was altered by legislation, the meaning of "recklessly" in s 17 to be interpreted according to Campbell – DPP appealed to HC – HC majority said CA correctly answered the point of law – Said when Parliament enacted s 17 intention must have been to leave the development of the meaning of recklessness to the courts - CA took up that task in Campbell, adopting a foresight of probability test for recklessness which had since been followed in Victoria - Two legislative amendments to Crimes Act since Campbell decided were relevant to s 17 - Both amendments followed expert reviews and extensive consultation with key stakeholders in the criminal justice system - No suggestion in those reviews or consultations that meaning given to recklessness in Campbell caused any difficulty in directions to juries - By contrast, there could be real unfairness departing from a long-standing decision of a State court which has been acted upon in such a way as to affect rights - Campbell should be followed unless and until it is altered by legislation – Appeal dismissed.