Directors' duties to creditors in Australia after spies v the Queen

In August 2000, the High Court handed down its decision in Spies v The Queen . According to most commentators, the decision ended a "quiet revolution" which had been underway since Walker v Wimborne by rejecting the suggestion that directors owe an independent duty to creditors. In this article, the writer responds to this commentary in two ways. First, by contending that the High Court's comments in Spies concerning directors' duties to creditors were merely obiter, thereby leaving open the possibility that an independent duty to creditors will be confirmed in a subsequent case. Secondly, by suggesting that if the commentary to date is correct, then the Spies decision has minimal impact in terms of creditor protection as directors' duties under the Corporations Act 2001 already provide sufficient protection for creditors.

Baker v The Queen & Fardon v Attorney General for the State of Queensland

In 2004, the High Court of Australia had cause to revisit its 1996 decision in Kable, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of Fardon and Baker demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be "tough on crime". The so-called "Kable principle", as construed by the High Court in 2004, may prove to be the "constitutional watch dog that barks but once".

Understanding tourists' cultural experiences : benefits and satisfaction at the Queen Victoria Market, Melbourne

This empirical research of tourists’ cultural experiences aims to advance theory by analysing consumers’ benefits (sought and gained) and inferred satisfaction with the Queen Victoria Market. Produce markets are under-researched cultural attractions, despite their popularity with tourists. The current exploratory study found dimensions of importance to tourists’ cultural experience benefits (sought and gained) included socio-psychological, hedonic benefits and attribute specific, utilitarian benefits. It further found that tourists were most satisfied with the hedonic benefits, and least satisfied with the services, signs and written information. This study concludes that researching both types of benefits (sought and gained) and both types of dimensions (psychologically-based and attribute-based) increases understanding of tourists’ cultural experiences.

The Queen v Getachew : rethinking DPP v Morgan

In The Queen v Getachew, a recent decision of the High Court of Australia that was soon followed by the Victorian Court of Appeal, the High Court correctly noted that there is a fine line between the mens reas of belief and knowledge which turns upon the degree of conviction with which a belief is held. In particular, the court emphasised that a belief in the existence of a fact or circumstance that contemplates a real possibility or perhaps a higher degree of doubt as to the existence of that fact or circumstance is tantamount to knowledge or awareness that such fact or circumstance may not exist. When applied to the principle enunciated in DPP v Morgan, that type of belief would not be mutually exclusive with the alternative mens reas that require the Crown to prove that the accused was aware that the complainant was not or might not be consenting to the penetration at issue. In Getachew, the High Court merely pointed out that the mens reas of knowledge and belief, though similar in certain respects, are separate and distinct mental states that were incorrectly and inexplicably treated as though they were identical in Morgan and innumerable decisions that have followed and relied upon Morgan since it was decided by the House of Lords in 1976. In the aftermath of Getachew, therefore, the principle that an accused can act with a mental state that is mutually exclusive of the mens rea for rape remains intact. What has changed is that it is knowledge, rather than a mere belief that the complainant is not or might not be consenting, that is mutually exclusive of the requisite mens rea for rape.

Consent as a Common Law Defence to Non-Sexual Assaults: The Effect of Neal v The Queen

The following discussion is an exposition of the recognised exceptions to the general rule that the law will not sanction the giving of a lawful consent to the application or threat of actual or grievous bodily harm. The discussion will also focus on a series of decisions in the UK and Australia, particularly Neal v The Queen, that have altered the law's approach to these exceptions and, more importantly, now permit a personto give an informed consent to the risk of contracting HIV or any other sexually transmitted diseases, provided there was no intention on the part of the accused to actually infect the other person. The underlying rationale for sanctioning an informed consent to such a risk is that consenting adults should be accorded the utmost autonomy in conductingtheir private affairs, and particularly so in the context of the choices they make regarding their private sexual activities. Whether one agrees or disagrees with the notion of allowing one to lawfully consent to such a risk, it raises an important question as to the current status of the general rule that one cannot generally give an informed consent to the applicationor threat of actual or grievous bodily harm. More succinctly stated, if the law is prepared to allow an informed consent to the risk of contracting a potentially fatal disease, then what remains of what had previously been a well-settled rule that, save for a few well-recognised exceptions, persons were generally prohibited from consenting to the application or threat of actual or grievous bodily harm?

Singh v The Queen: A Path Toward Confusion, Redundancy and Doctrinal Inconsistency

In Walkington v The Queen, the English Court of Criminal Appeal enunciated criteria fordetermining whether a building contains parts thereof for purposes of ss 76 and 77 of the CrimesAct 1958 (Vic): burglary and aggravated burglary respectively. In Singh v The Queen, the VictorianCourt of Appeal was confronted with a situation in which a trespassory entry had been made into abuilding that, according to the principles enunciated in Walkington, did not consist of any part orparts. Recognizing that there was scant evidence with which to prove that the accused’s entry hadbeen accompanied by an intention to commit one of the crimes specified in ss 76 and 77, the courtnonetheless affirmed the applicant’s conviction for aggravated burglary under s 77. In so doing,the court reaffirmed its earlier decision in The Queen v Chimirri which held that a trespassoryentry into a building results in continuing trespass for as long as the accused remains in thebuilding. In Chimirri, it was further held that if an accused forms an intention to commit one ofthe specified crimes subsequent to the initial trespassory entry and enters a part of the buildingwith that intention, he or she has committed burglary, aggravated burglary, or both by virtueof the continuing trespass doctrine. The discussion to follow will demonstrate that the court’sreasoning in both Chimirri and Singh is not only flawed, but flies in the face of the very passagesfrom the judgment of Lane LJ in Walkington that were quoted with apparent approval in Singh.The discussion will further demonstrate that the continuing trespass doctrine adds nothing of valueto the law of burglary as it existed prior to Chimirri and Singh; rather, its only effect is to addconfusion and uncertainty to what had been a settled area of the law.

Her Majesty moves: Sarah Bernhardt, Queen Elizabeth and the development of motion pictures

Sarah Bernhardt, the greatest theatrical star of the late nineteenth century, enabled and even promoted the association of early film with the British monarchy. She did this literally, by playing the role of Queen Elizabeth in Queen Elizabeth (Les Amours de la Reine Elisabeth, Henri Desfontaines and Louis Mercanton, 1912). Bernhardt also promoted the association of the cinema with monarchy symbolically, making the medium a new empathetic vehicle for the development of celebrity mystique and global power.