Elzahed v Commonwealth of Australia & State of NSW
This case drew significant media attention. Irrespective of the claim, the case highlighted the clash between religious views and court protocols.
In what has been loosely coined an Australian first, Moutia Elzahed (wife of convicted Islamic State recruiter, Hamdi Alqudsi) unsuccessfully sued both the Federal and NSW Police for damages as a result of claimed injuries sustained during the execution of a search warrant at her home in September 2014.
When Ms Elzahed testified in court, she refused to remove her niqab (full face veil) once she took the stand. Her lawyer cited religious reasons, explaining to the NSW District Court Judge, Audrey Balla, that she could not expose her face to any male outside of her family.
Judge Balla offered Ms Elzahed the opportunity to have a closed court during her testimony or alternatively the option to provide her evidence via video link. This was however refused as male legal representatives would still witness her face. This resulted in Judge Balla refusing Ms Elzahed to take the stand and give evidence.
This case highlighted the importance of a Judge being able to assess a witness’s face and demeanour whilst giving evidence to determine the credibility of the evidence.
On a side note, Ms Elzahed also refused to stand for Judge Balla when she entered and left the court. It was reported earlier this month that these actions will result in Ms Elzahed being prosecuted for intentionally disrespectful behaviour.
The offence, which carries a maximum 14 days in prison or $1,100 fine, was introduced last year following instances of religious extremists not standing in court.
Australian Conservation Foundation Incorporated v Minister for the Environment
In November 2015, ACF initiated proceedings in the Federal Court of Australia to challenge the Federal approval of the Carmichael coal mine under the Federal Environment Protection and Biodiversity Conservation Act (‘EPBC Act’). The case was heard by Justice Griffiths on 29 August 2016.
This case has been referred to as a landmark climate change case in Australia that follows a long line of legal challenges involving similar climate change arguments against other projects such as the Wandoan Coal Project and the Alpha Coal Mine.
The ACF argued that the Federal Environment Minister unlawfully approved what would be the largest mine in the Southern Hemisphere. Specifically, the ACF argued that the Minister’s approval was inconsistent with the Australian Government’s international obligations to protect the World Heritage- listed, Great Barrier Reef Marine Park.
Ultimately, the case was decided on the definition of ‘impact’ under the EPBC Act. The Minister claimed that because climate change is a global problem, and the quantity of overseas pollution was subject to a range of variables, to quantify actual net pollution would have been speculative and thus there was ‘no relevant impact’ for the purposes of the EPBC Act. The Judge found that this was a legitimate decision-making process and thus no error of law was made.
This case provides an example of the use of strategic litigation by interest groups, the delays that can be caused to large-scale resource projects and the need for project proponents to ensure that they factor in potential legal challenges in their project schedule.
Brenner v Taxi Services Commission
Despite Uber drivers having operated in Melbourne for the past two years, this case in Victoria was the first time the legal system has decided whether or not driving a car for UberX is a criminal offence.
Mr Brenner was charged and found guilty with operating a commercial passenger vehicle without a licence, permit or authority. This effectively outlawed Uber drivers in Victoria. However, on 18 May 2016 an appeal was held which dismissed the charges and ordered the Taxi Services Commission to pay the costs of Mr Brenner’s appeal.
Essentially legalising Uber services, this landmark decision clears the way for full competition between taxis and ride sharers, like Uber.
What we may see in 2017 is a push for the State Governments to regulate Uber services in order to introduce sensible, safety based regulations, as the commuter is now choosing ride-sharing services over taxis.
Silva v R
The NSW Court of Criminal Appeal has allowed an appeal and subsequently quashed a manslaughter conviction where self-defence was raised.
Ms Silva, the accused, and her partner, Mr Polkinghorne, the deceased, had been in a tempestuous relationship for close to four years. Throughout this time Ms Silva was constantly subjected to physical and emotional abuse inflicted by Mr Polkinghorne.
On the night of the incident, Mr Polkinghorne had threatened Ms Silva that he would ‘cave [her] f***king head in’ and ‘break [her] jaw, cause [she was] a dog’. He arrived at Ms Silva’s residence and was behaving erratically and affected by drugs.
In an attempt to calm Mr Polkinghorne, Ms Silva was punched in the face, had her pants ripped before the deceased proceeded to engage in a struggle with Ms Silva’s father and brother. Ms Silva went into her house, retrieved a large kitchen knife and when she returned outside to see the deceased on top of her father, she then proceeded to stab the deceased five times in the shoulder and neck.
Ms Silva was acquitted of murder at her trial but was found guilty of manslaughter. In appealing her manslaughter conviction, the Court of Criminal Appeal was faced with the issue of whether Ms Silva’s actions in stabbing and subsequently killing Mr Polkinghorne were reasonable under the circumstances and ultimately amounted to self-defence.
The Court found in Ms Silva’s favour, that her actions under the circumstances were reasonable due to her perceived imminent fear for her safety and her family’s safety.
This case is undoubtedly a landmark decision in the movement against domestic violence in Australia. For defence lawyers, it is intriguing to note that self-defence was made out despite the fact that Ms Silva at the time of stabbing the deceased was not herself being physically attacked. She also had made the decision to return inside her house for a knife and had stabbed the deceased repeatedly. Therefore, it can be interpreted that the definition of self-defence is arguably expanding when considering this decision.