Australia woke this morning, 16 December 2014, to learn the sad news of the deaths of two hostages in the Lindt cafe in Martin Place Sydney. My thoughts are with their families and the survivors.

There has been reporting that the hostage taker, Man Haron Monis, was known to police. His criminal history is being reported extensively elsewhere.

Of particular interest to Constitutional lawyers, Monis was responsible for a recent challenge to s 471.12 of the Criminal Code (Cth) ((See Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4.)). That provision prohibits using the postal service to send letters that are objectively “menacing, harassing or offensive.” Monis had sent letters to the families of Australian soldiers who had been killed in action in the Middle East. His letters were plainly offensive in common parlance.

Monis challenged the indictment before pleading to it. His challenge found its way to the High Court where, in a 3:3 decision the Court split as to whether the provision offended the implied freedom of political communication. Each judgment of the Court applied the test in Lange v ABC. (( (1997) 189 CLR 520; [1997] HCA 25)) In a joint judgment Crennan, Kiefel and Bell JJ held s 471.12 was valid. Each of French CJ and Hayne and Heydon JJ delivered their own dissenting judgment.

Section 23(2)(a) of the Judiciary Act 1903 (Cth) provides that the decision appealed from shall be affirmed where the High Court is evenly split. Thus the the validity of s 471.12 was upheld and Monis’ appeal was dismissed.

Notably Heydon J at [240] – [251] in the minority suggested that perhaps it was time for Lange to be reviewed. ((See [240] to [251].))

Having failed in his challenge to the indictment, Monis then pleaded guilty. However that was not quite the end of the story. He appealed his conviction (seeking to re-agitate the issues argued before the High Court).

On Friday 12 December 2014, Monis’ counsel applied to the High Court to have that appeal removed. French CJ and Gageler J refused the application, French CJ saying:

The applicants seek orders under section 40 of the Judiciary Act 1903 (Cth) to remove to this Court appeals pending in the New South Wales Court of Criminal Appeal against convictions for offences against section 471.12 of the Criminal Code (Cth). The applicants, who had pleaded guilty to the charges, nevertheless sought leave to appeal against their convictions on the basis that section 471.12, in its application to offensive communications, is invalid as infringing the implied freedom of communication on political and governmental matters. That question was resolved against them in the Court of Criminal Appeal on appeals against the dismissal of their motions to quash the original indictments on which they were charged. On appeal to this Court, the Court was evenly divided and the decision of the Court of Criminal Appeal was thereby affirmed by reason of section 23 of the Judiciary Act.

In our opinion it suffices to say that, having regard to the history of the matter, we do not think it appropriate to make an order for removal in this case. … The application for removal will be dismissed. ((See Monis & Droudis v The Queen [2014] HCATrans 280.))