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In this occasional feature we deal with the judgments given by the top courts in Australia, Canada, Hong Kong, Ireland, New Zealand, South Africa and the United States in July 2009. Attention is drawn, in particular, to important Canadian cases on freedom of expression, freedom of religion and the exclusion of evidence for breaches of the Charter.

Australia:  The High Court of Australia gave four judgments in this period

  •  Vale v Sutherland [2009] HCA 26: the High Court considered a number of issues in relations to challenges by a trustee in bankruptcy to transactions at  an undervalue.
  • Campbell v Backoffice Investments [2009] HCA 25 – dealt with misleading and deceptive conduct under the Fair Trading Act
  • Bakwell v The Queen [2009] HCA 24:  concerned the operation of certain sentencing provisions when a prisoner was transferred between States.
  • Pape v Commissioner of Taxation [2009] HCA 23: concerned the constitutional validity of legislation which sought to give a one-off payment of up to Aus$900 to taxpayers.  By a 6:1 majority the Act was upheld.   

 

Canada:  The Supreme Court of Canada gave eight  judgments during this period:

  • Greater Vancouver Transportation Authority v Canadian Federation of Students 2009 SCC 31  – concerned the application of the right to freedom of expression under s.2(b) of the Charter to rules governing political advertising on public transport vehicles
  • R v Shepherd 2009 SCC 35 – this case concerned whether or not a demand for a breath test was supported by “reasonable and probable cause”
  • R v Harrison 2009 SCC 34 – the Court considered “warrantless searches” and the exclusion of evidence under the Charter.
  • R v Suberu 2009 SCC 33 – the Court considered the circumstances in which the “right to counsel” under s.10(b) of the Charter is triggered.
  • R v Grant 2009 SCC 32 – the Court conducted a full review of the case law on detention and exclusion of evidence under the Charter
  • R v Layton 2009 SCC 36 – the Court considered the directions which should be be given to a jury as to the meaning of “beyond reasonable doubt”
  • Alberta v Hutterian Brethern of Wilson Colony 2009 SCC 377 – the Court considered whether the requirement that driving licences should include a photograph was an unjustified infringement of the freedom religion of the respondents who believed that the Second Commandment prohibited them from having their photographs taken.  By 4:3 majority the Court held that the regulation was a proportionate interference.
  • R v Bjelland 2009 SCC 38 – the Court held that evidence which was disclosed late by the Crown should not have been excluded under s.24 of the Charter (bringing the administration of justice into disrepute).

  

 

Hong Kong:   The Court of Final Appeal gave five substantive judgments in this period: 

  • HALL v HKSAR [2009] HKCFA 65 – concerned a prosecutor’s duty of disclosure in criminal proceedings
  • HKSAR v CHEUNG KWUN YIN [2009] HKCFA 64 – concerned the offence of the dishonest procuring by deception of the making of an entry in a record of a bank.  
  • LEUNG LAI FONG v CHAN YUI LING [2009] HKCFA 68 – concerned the meaning of “mother” in the Intestate Estates Ordinance.  The appellant unsuccessfully invoked the Bill of Rights Ordinance in what was a  dispute between two private parties.
  • NGAI LIK ELECTRONICS v COMMISSIONER OF INLAND REVENUE [2009] HKCFA 70 – dealt with the anti-avoidance provisions of the Inland Revenue Ordinance
  • WONG HON SUN v HKSAR [2009] HKCFA 67  – concerned the law relating to proof in forfeiture proceedings
     

 Ireland:  The judgments of the Irish Supreme Court in this period include:

  • Mahon Tribunal v Keena [2009] IESC 64 – concerned an order for the disclosure of a journalist’s source to a Tribunal set up to investigate a leak of information to the Irish Times.  The Court overturned the order compelling the journalists to disclose their sources on the basis that the High Court had “devalued the journalistic privilege so severely, the balance was clearly not properly struck”.
  • Magee v Farrell [2009] IESC 60 – it was held that there was no constitutional entitled to State funded legal representation at an inquest
  • JD v Residential Institutions Redress Committee [2009] IESC 59 – concerned legislation to provide compensation for persons who had suffered abuse in residential institutions in the State during childhood.  The Court rejected an argument that confining the compensation to persons under 18 at the relevant time was incompatible with the constitution.

  

  New Zealand:  The New Zealand Supreme Court gave four substantive judgments in this period

  • Saxmere Company Limited and others v Wool Board [2009] NZSC 72 (3 July 2009) – the Court dealt with an allegation of bias arising out of a personal friendship between an appeal court judge and Counsel for one of the parties.
  • Westpac New Zealand v Clark [2009] NZSC 73 (9 July 2009) – the Court considered the effect of a forged mortgage and loan contract and held that they were nullities, meaning the no loss was suffered as a result of a negligent failure to register the mortgage.
  • Ye and Qui v Minister of Immigration [2009] NZSC 76 (20 July 2009) – concerned the statutory provisions relating to the removal of “overstayers”
  • David McAlister v Air New Zealand [2009] NZSC 78 (20 July 2009) – dealt with a complex set of interlocking statutory provisions concerning age discrmination in relation to an airline pilot.

 South Africa

The Constitutional Court gave three judgments in this period

  • Centre for Child Law v Minister for Justice and Constitutional Development and Others [2009] ZACC 18 (15 July 2009) – the Court
    ruled that the Constitution prohibits minimum sentencing legislation from being applied to children aged 16 and 17 years old.  It found that while the Constitution permits Parliament to deal effectively with child offenders, including through the imposition of long sentences, the approach required by the minimum sentencing legislation unjustifiably infringes the protections the Bill of Rights affords to all children under 18.
  • Hassam v Jacobs NO [2009] ZACC 19 (15 July 2009)- the Court decided that women who are party to a polygunous Muslim marriage under Muslim personal law are spouses for the purpose of inheriting or claiming from estates where the deceased died without leaving a will.

     

  • Women’s Legal Trust v President of the Republic of South Africa and Others [2009] ZACC 20 (22 July 2009)- decided that
    that applications challenging the legislative programme and duties of the government should not be brought directly to the Court, but must first be lodged in the High Court and go through the ordinary judicial processes before reaching the Court.  The Court dismissed an application to oblige the President and various Ministers to enact legislation regulating Muslim marriages.

United States:  The US Supreme Court is currently in recess and gave no judgments during this period.

  

 

 

 

 

 

 

  

 

 

 

 

 

 

 

 

 

 

South Africa:  The South African Constitutional Court gave three judgments in this period: