Chapter 7 — Unusual and Interesting Cases

Chapter Seven — Unusual and Interesting Cases

From The High Court of Australia 1903-2003

by Crispin Hull

Aside from the cases of high constitutional importance and major legal principle, the High Court has heard some unusual and dramatic cases in its first 100 years. This small sample includes matters of life and death; cases which were for the parties matters of high emotion; and cases involving the nuts and bolts of commerce in unusual ways. The sample illustrates the diversity and human character of the court’s work and the Court’s influence of nearly every aspect of Australian life. The cases also illustrate the breadth and difficulty of legal subject matters with which the Justices of the Court have to deal.

Family matters

Jenkins v Morrison — Whose baby?

Jenkins v Morrison (1949) 80 CLR 622

On 22 June 1945, a baby girl was born to Alberta Gwen Morrison in the labour ward at the Kyneton Hospital in Victoria. Within the preceding five minutes a baby girl had been born in the same ward to Jessie Jenkins. Mrs Morrison and her husband said the babies had been inadvertently swapped at the hospital and that Mrs Jenkins had left the hospital with the Morrisons’ baby, later named Nola Jenkins. Four years later, the case reached the High Court. The delay was caused by a misunderstanding on the part of the Morrisons about their rights to sue.

The Morrisons sought the return of Nola. The Jenkins family resisted. Mr and Mrs Jenkins did not seek the return of the baby that went from the hospital with the Morrisons, Johanne Lee Morrison, because they were convinced they had the right child.

There was no DNA testing at the time. But blood tests showed that Mr Morrison could not be the father of the baby they had brought from the hospital. The Supreme Court of Victoria held that the evidence showed that Nola was the daughter of Mr and Mrs Morrison and that Nola should be returned to their custody.

The High Court was divided. Justices Rich and Dixon said the evidence left the parentage of the child so much in doubt that it would not be for the child’s welfare to remove her from her present custody. Justice Webb said the evidence as a whole did not warrant the conclusion of the trial judge that the child belonged to the Morrisons. The evidence included the fact that two other children had been born within 24 hours of the contested children. One of those might have been given to the Morrisons and explain why Mr Morrison could not be Johanne’s father.

Chief Justice Latham and Justice McTiernan said the Morrisons should get custody of Nola. Justice McTiernan said the blood tests and other evidence established beyond any reasonable doubt that Mrs Morrison had been given a baby to which she did not give birth and the baby was Johanne Lee. The best-interests-of-the-child test applied when parents fight each other for custody, but when the parents are together, “The parents are the natural and lawful guardians of their child: they have a legal right to the child’s custody.”

The result of the majority decision was that Nola should stay with the Jenkins family and Johanne with the Morrisons. Leave to appeal to the Privy Council was refused.

Marion’s Case

Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218

In Marion’s Case, the High Court had to determine issues of parental authority, the human rights of an intellectually disabled child and the authority of courts to make decisions about medical treatment.

Marion was a 14-year-old suffering from mental retardation, severe deafness, epilepsy and behavioural problems. She was incapable of caring for herself physically and she was incapable of understanding the nature and implications of sexuality, pregnancy and motherhood. Her parents, residents of the Northern Territory, applied to the Family Court of Australia for an order authorising Marion’s sterilisation to prevent pregnancy and menstruation. They said it was in her best interests. The Full Family Court held the parents could authorise the operation.

The High Court reversed that decision. Chief Justice Mason and Justices Dawson, Toohey and Gaudron said in a joint judgment that except where sterilisation was an incidental result of surgery performed to cure a disease or correct some malfunction, the decision to sterilise an intellectually disabled minor fell outside the ordinary scope of parental powers. It would be necessary for the parents to get an order from the Family Court to authorise the procedure if it was in the best interests of the child.

They and Justices Deane and McHugh held that parental power to consent to medical treatment on behalf of a child diminished gradually as the child’s capacities and maturity grew. Minors could give informed consent to a medical procedure when they achieved a sufficient understanding and intelligence to understand fully what was proposed.

Justice Brennan dissented. He considered that neither the parents nor the Family Court could authorise a non-therapeutic sterilisation. Justice McHugh would have given the parents greater authority than the majority. He said parents could give consent to the sterilisation of an intellectually disabled child if the procedure was required to eliminate a real risk of the child becoming pregnant if she was incapable of understanding sexual relationships or pregnancy.

Justice Brennan, dissenting, said:

“In the world in which [an intellectually disabled] child perceives himself or herself to be living, the child’s self-estimate is entirely valid, however defective or limited that estimate may appear to an observer to be. Moreover, that world and that self-estimate live in the mind of the child to which the outside world, even loving parents, have only limited access. The more profound the intellectual disability, the more limited the access. Yet, if a third party is to be empowered to authorize the compulsory sterilization of an intellectually disabled child, the third party must be able to take account of the degree of impairment of the child’s dignity entailed by the sterilizing procedure. It follows that no authority for sterilization should be given unless some compelling justification [such as a therapeutic requirement] is identified and demonstrated. A substituted ‘consent’ does not provide its own justification.” (at 268).

Murder, attempted murder and capital punishment

Tait v The Queen

Tait v The Queen (1962) 108 CLR 620

Robert Peter Tait was convicted in 1961 of the murder of an elderly lady and sentenced to death. The Full Court of the Victorian Supreme Court, the High Court and the Privy Council refused leave to appeal. Execution was scheduled for 22 October 1962. The Premier, Sir Henry Bolte, was apparently determined that Tait be hung. Tait’s counsel had unsuccessfully argued that Tait was temporarily insane at the time of the killing. His mental condition might affect whether he was to be executed. The long-delayed Mental Health Act 1959 (Vic) was due to come into force on 1 November 1962, replacing the Mental Hygiene Act 1958 (Vic). The new Act redefined insanity and might have provided grounds for arguing that Tait should not be hanged. An officer of the Brotherhood of St Laurence petitioned unsuccessfully to prevent the execution under the old Act; at first to a single judge and then on appeal to the Full Court of the Supreme Court. By that point the execution had been postponed until 8am on 1 November – just before any action could be taken under the new Act. Another petition was made to the trial judge who heard the matter on the evening of 30 October and rejected it at 10.30pm under some pressure of time.

On 31 October, with the execution due the next day and Tait’s grave already dug in the grounds of Pentridge jail, applications were made to the High Court for special leave to appeal against the rejection of the petitions. The Court was not in session. Three Justices had to fly from Sydney to Melbourne to join two others. John Starke, for the petitioner, argued for a stay so the matter could be fully considered. “We have been bundled through this court to keep an appointment with the hangman at 8 o’clock tomorrow morning.”

The Chief Justice, Sir Owen Dixon, later wrote in his diary the question was “whether we should allow the State to evade our jurisdiction by hanging the man tomorrow.” And he deplored the fact that Victorian judges had allowed themselves to “be harried and bullied by State politicians”.

Dixon was not to be harried or evaded. He announced that the Court would adjourn the applications for full argument and “so that the authority of this Court may be maintained . . . order that the execution of the prisoner fixed for tomorrow morning be stayed.” Counsel for the Crown, Sir Henry Winneke, could offer no guarantee that this would be enough because Bolte had earlier asked in Cabinet what would be the legal position if the execution went ahead anyway. So Dixon ordered that the Chief Secretary and his deputies be restrained from carrying out the execution.

Tait’s sentence was commuted to life in prison where he died 23 years later.

Perry v The Queen

Perry v The Queen (1982) 150 CLR 580

In 1982, Emily Phyllis Gertrude Perry appealed to the High Court after being sentenced to 15 years’ jail in the South Australian Supreme Court for the attempted murder of her third husband, Kenneth Warwick Henry Perry, by arsenic poisoning. Mr Perry was found to be suffering from arsenic poisoning. Mr Perry gave evidence asserting his wife’s innocence. The defence said Mr Perry must have ingested the arsenic while restoring a musical instrument.

At the trial the Crown led evidence that Mrs Perry’s second husband, Albert Otto Haag, and her brother, Francis William Montgomerie, had died of arsenic poisoning in 1961 and 1962 respectively, and that her de facto husband, Jim Duncan, had died of an overdose of barbiturates in 1970. The accused benefited financially from the deaths of her second husband and her de facto husband, and would have benefited from the death of her third husband if he had died. An inquest was held into the death of the second husband, but no charges resulted.

The question for the High Court was whether evidence of the earlier deaths should have been admitted. Usually, evidence of previous convictions or evidence suggesting previous criminality is not usually admissible. However, the law makes an exception for what is called “similar facts”, but as the court held in this case the evidence tendered to prove similar facts must have a strong degree of probative force. It is not enough that it merely raises a suspicion that the accused may have been guilty of the similar misconduct alleged or of the crime charged. The Court held that critical parts of the evidence were more prejudicial that probative and were not admissible. Mrs Perry’s conviction was quashed. The Court ordered a new trial, but the Crown did not proceed with it. Mr and Mrs Perry gave television interviews and resumed married life.

The case illustrates the importance of the rules of evidence in reducing the danger of prejudice and misplaced suspicion.

Chamberlain v The Queen

Chamberlain v The Queen (1983) 153 CLR 521

The Chamberlain case is one of the most notorious in the history of Australian criminal law. Alice Lynne (Lindy) Chamberlain was charged with the murder of her nine-week-old daughter Azaria on 17 August 1980 at Ayers Rock (Uluru) in the Northern Territory. Her husband, Michael, was charged as an accessory after the fact. The Crown alleged that Mrs Chamberlain took her baby from a campsite to their car and cut her throat, later disposing of the body with the help of her husband. Mrs Chamberlain asserted that a dingo had taken her baby.

A search failed to find the body, though Azaria’s jumpsuit and vest were found a few days later, but not the matinee jacket which Mrs Chamberlain swore Azaria had been wearing.

The fact that the Chamberlains were Seventh Day Adventists gave rise to series of improbable rumours that Azaria had been sacrificed by religious fanatics.

An inquest supported Mrs Chamberlain. But its findings were quashed and a new inquest ordered, which led to the charges being laid against the Chamberlains.

The Crown’s case was circumstantial and relied on half a dozen strands of evidence, much of it scientific, which taken together, the Crown’s counsel suggested, had the strength of rope. The evidence included what the Crown said was blood of a type that could only come from a baby found in the Chamberlains’ car; the cuts in the fabric of the jumpsuit not being consistent with being pulled by a dingo’s teeth but a sharp instrument; the vegetation on the jump-suit not being consistent with being dragged over a distance; an imprint of a bloodied hand on the jumpsuit and so on. The jury apparently rejected evidence of independent witnesses that they had heard a baby cry after the time the Crown alleged Mrs Chamberlain had killed her baby.

The Chamberlains were found guilty and Mrs Chamberlain sentenced to life imprisonment and Mr Chamberlain to a suspended sentence.

In the High Court appeal there were three main legal questions. Three of the five judges – Chief Justice Gibbs and Justices Murphy and Brennan — said that if upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, it was not for an appellate court to disturb a verdict of conviction simply because it disagreed with the jury’s conclusion. Justice Deane dissented. He said that the evidence in his mind did not establish guilt beyond a reasonable doubt and he would have allowed the appeal.

The same three judges said that, in a case where the evidence is circumstantial, the jury should not reject one circumstance because, considered alone, no inference of guilt could be drawn from it. The jury should decide whether they accepted the evidence of a particular fact, not by considering the evidence relating to it in isolation, but in the light of the whole evidence, and they could draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.

The third point was that the three judges said that a jury could not view a fact as a basis for an inference of guilt unless they were satisfied beyond reasonable doubt of the existence of that fact. So the strands of scientific and circumstantial evidence could be woven together to form a conclusion of guilt.

Justice Murphy dissented from the conclusion on the question of blood. He agreed with Chief Justice Gibbs and Justice Mason that there was not enough evidence for the jury to conclude it was foetal blood. The Chief Justice and Justice Mason, however, said that that was not enough to disturb the overall conclusion because the jury could conclude that it was at least blood. Justice Murphy said the foetal blood conclusion could not be disentangled from the overall conclusion of guilt and so the verdict was unsafe.

The jury’s verdict was upheld. But after Mrs Chamberlain had served three years in jail, the matinee jacket was discovered at Uluru. A commission of inquiry discredited the scientific evidence and concluded that the convictions were unsafe. It concluded, among other things, that the substance in the Chamberlains’ car was not blood at all.

In 1987 a special Act was passed by the Northern Territory Legislative Assembly to permit the Chamberlains to apply to the Supreme Court of the Northern Territory to have their convictions quashed. On 15 September 1988, Lindy and Michael Chamberlain returned to the Darwin courthouse where they had been convicted six years earlier. The three judges of the Court of Criminal Appeal took less than two minutes to announce their unanimous decision to quash the Chamberlains’ convictions. The finding being that “the convictions having been wiped away, the law of the land holds the Chamberlains to be innocent.”

The case gave rise to calls for greater caution with scientific evidence. It also illustrates the balance between the need to respect, within limits, jury decisions against the temptation for a court to look at the whole of the evidence themselves and replace the jury’s decision with that of their own.

Tuckiar v The King

Tuckiar v The King (1934) 52 CLR 335

On 28 June 2003, the Chief Justice of the High Court, Murray Gleeson, attended a ceremony in Darwin at the invitation of the Yolngu people, at which the High Court was thanked for righting an injustice against Yolngu clan leader Dhakiyarr Wirrpanda, also known as Tuckiar. The ceremony was for the unveiling of memorial poles inside the foyer of the Supreme Court in Darwin, dedicated to the Yolngu elder and his family.

In 1934 Tuckiar was sentenced to death in the Northern Territory Supreme Court for the murder by spearing of Constable Albert McColl on an island off Arnhem Land. McColl had gone to Arnhem Land with a police party to apprehend the Aboriginal killers of the crew of a Japanese pearling lugger. When he was killed, McColl was handcuffed to a wife of Tuckiar. She had recently been raped by two white men and Tuckiar thought she was about to be harmed by McColl.

The trial lasted only one day, and the all-white jury took just over two hours to find Tuckiar guilty. Defences of self-defence or provocation were not put.

The judge said in summing up:

“If you bring in a verdict of ‘not guilty’ it means that this man is freed and cannot be tried again, no matter what evidence may be discovered in the future, and that may mean a grave miscarriage of justice. Another aspect of the matter that troubles me is that evidence has been given about a man who is dead, and if the jury brings in a verdict of ‘not guilty’ it may be said that they believe that evidence, and it would be a serious slander on that man. . . .

Tuckiar has told two different stories to two different boys, and both of these stories have been told to you here in Court. Which one is true? For some reason Tuckiar has not gone into the box and told you which one is true, and that is a fact which you are entitled to take into consideration. You can draw from it any inference you like.” (at 342-343)

Also, during the trial, counsel for the accused told the court that a matter had arisen causing him embarrassment, but he continued to represent his client. After the verdict counsel said his client had told him that the more damning story of the killing was true. The trial judge said after the trial that counsel had behaved correctly because if he had withdrawn (the proper course) the public might think an Aboriginal had been left in the middle of a trial without counsel.

On appeal to the High Court by Chief Justice Gavan Duffy and Justices Dixon, Evatt and McTiernan said in a joint judgment:

“We think the observations made by the learned Judge upon the failure of the prisoner to give evidence amounted to a clear misdirection and one which in the circumstances was calculated gravely to prejudice the prisoner . . . . In the next place, although the evidence of McColl’s good character and moral tendencies was not objected to, it clearly should have been disallowed. The purpose of the trial was not to vindicate the deceased constable, but to inquire into the guilt of the living Aboriginal.” (at 345)

They said counsel’s conduct was indefensible. He should not have disclosed the confidential communication. Moreover, having continued to appear he should have pursued the possibility of an acquittal or a verdict of manslaughter.

In an act of reconciliation, 38 descendants of Constable McColl attended the 2003 ceremony.

A Justice appeals to his own court

R v Murphy (1985) 158 CLR 596

R v Murphy is perhaps unique in the history of highest national courts. In this case, the court heard a matter brought by one of its own members in a criminal matter. High Court Justice Lionel Keith Murphy had been charged and found guilty of perverting the course of justice. It was alleged he had sought favourable treatment from a New South Wales magistrate for a friend who had been charged with Commonwealth offences and was facing a committal hearing. In August 1985 Murphy applied to the High Court to quash the conviction. He argued that the Commonwealth law under which he had been charged was invalid. He argued that the law had attempted to create an offence with respect to committal hearings. Committal hearings were not judicial in nature and therefore any law attempting to create a criminal offence with respect to them would be beyond the Commonwealth’s legislative power to make laws with respect to the exercise of the judicial power of the Commonwealth.

Murphy’s six fellow Justices on the High Court held against him in a joint judgment. They held that committal hearings relating to Commonwealth offences were part of the exercise of the judicial power of the Commonwealth. The Commonwealth law that made it an offence to pervert the course of justice in relation to those hearings was a valid law.

Murphy subsequently appealed against the conviction to the New South Wales Court of Criminal Appeal. The appeal was allowed and the conviction was set aside.

Before the trials, two Senate committee inquiries looked at the matters with a view to determining whether Murphy’s conduct constituted grounds under section 72 of the Constitution for his removal. That Section provides that a Justice shall not be removed “except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity”. Both Senate inquiries were inconclusive. Murphy refused to submit to questioning, saying it would be a breach of the separation of powers. By then an election had been called. In November 1984, the Director of Public Prosecutions recommended that Murphy be prosecuted.

After Murphy’s ultimate acquittal, Attorney-General Lionel Bowen appointed, in May 1986, a parliamentary commission of inquiry comprising three retired judges to consider whether any conduct of Murphy’s might amount to “proved misbehaviour”.

By July the commission had identified 14 allegations that it would consider. Murphy then announced he was dying of cancer and intended top return to the Court. The commission was halted. Murphy returned to the Bench for one week of sittings in August 1986. The other Justices expedited the preparation of their judgments because of the rule of law that when a judge dies his or her undelivered judgments die too. A special Full Court was constituted at 3pm on 21 October 1986, and the judgments were delivered. An hour later Murphy died.

Murphy’s death left two issues unresolved. The first was the precise meaning of “proved misbehaviour” and the second was whether Murphy was guilty of it.

Under the Parliamentary Commission of Inquiry (Repeal) Act 1986 (Cth) the documents in the possession of the commission were put into the custody of the Presiding Officers, not to be released for 30 years.

The nature of property

Victoria Park Racing and Recreation Grounds Company Limited v Taylor

Victoria Park Racing and Recreation Grounds Company Limited v Taylor (1937) 58 CLR 479

Sometimes the most abstract questions have very practical consequences. In 1937, the High Court was faced with a question about the nature of property. Obviously, there was property in land and goods. There was also property in intellectual ideas, such as inventions and the expression of literary, artistic and musical works. But could there be property rights in a spectacle?

Victoria Park Racing and Recreation Grounds Company Limited conducted race meetings at its racecourse in a suburb of Sydney. The racecourse was surrounded by a very high fence. Taylor, who had a house and front yard adjacent to the course, allowed the radio broadcasting station 2UW to construct a five-metre high platform on scaffolding from which someone could see into the course and broadcast – with the help of binoculars — the races and information about horses posted at the ground. Attendance at the ground plummeted. The company sued, arguing it had property in the spectacle and copyright in the information. No so, held the court. There was no property in a spectacle and uncollated information in signs on the ground was not copyright. Moreover, the case has caused concern that it might deny a common law right of privacy. The company’s only remedy was an extra-legal one – build a higher fence.

Autodesk Inc v Dyason

Autodesk Inc v Dyason (1992) 173 CLR 330

This case illustrates how the Court has to deal with issues arising out of new technologies – a task that will inevitably increase in the Court’s second century. It presented the Court with difficult technical questions involving computer piracy. The producers of AutoCAD computer programs for architectural and other design drafting provided a lock with their software. The software – which cost $5200 — was provided on easily copiable disks. The lock plugged into a computer port. Without it the software would not run, thus preventing piracy. Only one computer could run the program at a time. The lock set up electronic challenges every few seconds from the computer to the lock. If the response was not correct, the program closed.

Dyason made a device which performed the function of the lock and put it on the market for $500. Autodesk sued for breach of copyright. Dyason asserted that it had not copied AutoCAD nor was its device the same as the AutoCAD lock; it performed the same function in a different way. The trial judge found for AutoCAD, but on appeal all three Federal Court judges found for Dyason.

Justice Dawson, with whom the other Justices agreed, resolved the question with some ingenuity. He said the AutoCAD program included the electronic transfers between the computer and the lock. When the lock received the challenges from the computer they hit a look-up table and generated a response which was sent back to the computer. Only if it was the correct response would the software keep operating. Dyason had very cleverly found a different way to generate the correct response. The response was in the form of electronic pulses – the absence or presence of electrical current — sent from the lock to the computer which could be represented as a series of zeroes and ones.

Justice Dawson said Dyason had not copied the main design software including the challenges to the lock. (Presumably others would do that by copying the disks that the software came on.) However, Dyason had copied the pulses sent from the lock which could be represented as a series of zeroes and ones, and so it had breached AutoCAD’s copyright.

The Court confirmed, incidentally, that copyright could subsist in electronic pulses.


The High Court has decided more than 10,000 reported cases in its first century. It would be a mistake – as the above examples show — to think the matters dull, limited or only of major constitutional import. The Court’s work affects social and economic life, as well as constitutional issues. In this respect its work affects all Australians, as its decisions determine not only the issues between the parties before it, but also the influence the advice given to, and the actions of, countless others who find themselves in similar situations in the future.

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