Hearsay ... the Journal of the Bar Association of Queensland
OOPS. Your Flash player is missing or outdated.Click here to update your player so you can see this content.
Court of Appeal Judgment Summary Notes Print E-mail

coaintro.jpgThe following summary notes of recent decisions of the Queensland Court of Appeal have been prepared by Bruce Godfrey, Court of Appeal Research Officer. They provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

The following Judgments are summarised in this issue. The summary notes follow after this list.


  •  Arrowsmith v Micallef & Ors [2013] QCA 143
  • Knight & Ors v The Queen [2013] QCA 144 
  •  Coeur de Lion Investments Pty Ltd v Kelly & Ors [2013] QCA 160
  • McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168


  •  R v Henderson [2013] QCA 146
  • R v Upson (No 2) [2013] QCA 149
  • R v Bradley [2013] QCA 163   

Arrowsmith v Micallef & Ors [2013] QCA 143 White and Gotterson JJA and Peter Lyons J 4/06/2013

General Civil Appeal – Procedure – where orders were made in the trial division for the distribution of the estate of Allan James Dumesny (the deceased) – where terms of settlement were agreed between the parties at a mediation – where a dispute emerged about the effect of the terms of settlement – where the terms of settlement contained a release clause – where at first instance the appellant sought an adjournment to obtain evidence that might be relevant in construing the release clause – where the application for an adjournment was refused – whether there was a denial of justice to the appellant as a result of the refusal of her application for an adjournment – where cl 6 of the Terms of Settlement is ambiguous – where language used in cl 6 is very broad – where relevant extrinsic evidence was admissible on the construction of cl 6, because it was ambiguous, and possibly because this is specifically required for the construction of a release – where this is an appeal against an exercise of discretion, in a matter of practice and procedure – where s 114 of the Supreme Court of Queensland Act 1991 (Qld), as it stood in December 2011, made inadmissible evidence of anything done or said at the mediation, unless all parties to the dispute otherwise agreed – where there seems to have been an agreement by conduct that evidence of things done and said at the mediation was admissible at the hearing – where there is much to be said for the proposition that the appellant should have been given the opportunity, through her legal advisers, to investigate whether there was available evidence, now admissible, relevant to the construction of cl 6 – where the evidence demonstrated the prospect of obtaining evidence which would objectively establish the subject matter, or the genesis and aim, of the Terms of Settlement, including cl 6 – where the refusal of the adjournment deprived the appellant of the opportunity to investigate the availability of evidence in support of her position about the proper construction of cl 6 of the Terms of Settlement – where the appellant’s evidence demonstrated a real prospect that evidence might be obtained to support her position, from sources likely to be regarded as credible – where there was a denial of natural justice. Appeal allowed. Matter remitted to the trial division for further hearing

barbed_wire_fend.jpgKnight & Ors v The Queen [2013] QCA 144 Muir JA and Boddice and Jackson JJ 7/06/2013

General Civil Appeal – Juries – where the appellants were convicted of murder of another inmate following a retrial – where the appellants’ criminal histories were only tendered during the sentencing hearing – where no member of the jury was present in Court during the sentencing hearing – where, 19 days after verdict, a jury member told his hairdresser that the outcome of the trial “wouldn’t make a difference as they were already serving life terms or long terms of imprisonment” – where details of the appellants’ criminal histories were available online during the course of the trial – where the trial judge repeatedly directed the jury not to make investigations of their own – where the appellants’ criminal histories were widely broadcast after sentence – where the primary judge refused the appellants’ application to investigate suspected jury bias, fraud or offence pursuant to s 70(7) of the Jury Act 1995 (Qld) – whether there are grounds to suspect that the juror may have been guilty of bias, fraud or offence – whether an investigation of the suspected bias, fraud or offence should be authorised – where it was quite likely, as the primary judge found, that a juror who had sat on a trial, such as the subject trial, would have been interested in accessing post trial electronic media reports in order to ascertain information about the sentences imposed and the sentencing hearing – where in the course of the trial the trial judge gave extensive directions to the jurors, drawing to their attention the prohibition against inquiring about the appellants – where there was nothing in the relevant conversation that suggested that the juror’s knowledge of the appellants’ prior criminal offences was gained before delivery of the jury’s verdicts – where having regard to the constitutional role of juries of the triers of fact in criminal trials, the respect with which the law has traditionally treated jury verdicts and the ability of juries to reach their verdicts faithfully following the trial judge’s directions, it cannot be supposed that s 70(7) contemplated the launching of an investigation without good cause – where those circumstances support the construction that for there to be “grounds to suspect” for the purposes of s 70(7) there needs to be more than the existence of a mere possibility that a juror obtained knowledge of prior convictions before a verdict was returned – where in this case there is the mere possibility that the juror obtained the relevant knowledge prior to the verdicts – where there are cogent reasons for believing that the relevant knowledge was gained after the verdicts. Appeal dismissed.

Coeur de Lion Investments Pty Ltd v Kelly & Ors [2013] QCA 160 Muir and Fraser JJA and Jackson J 21/06/2013

General Civil Appeal – Corporations Law – where the first, second and third respondents are directors of the fourth respondent, an unlisted public company – where the board passed a resolution to pay consultancy fees to the directors – where the appellant shareholder applied, pursuant to s 237(1) of the Corporations Act 2001 (Cth) (the Act), for leave to bring proceedings in the name of the fourth respondent against the first, second and third respondents to recover consultancy fees paid to the directors without member approval – where the primary judge refused the application on the basis that the appellant had not established that it was acting in good faith or that it was in the best interests of the fourth respondent to grant leave – where the appellant contends that the delay in challenging the consultancy payments is explained by the change in control of the appellant and not indicative of a lack of good faith – where the appellant contends that the respondents’ defences under s 208 and s 1318 of the Act should be tested at trial – where the appellant contends that the fourth respondent will be indemnified for the costs of the action – whether the primary judge erred in finding that the appellant was not acting in good faith – whether it is in the best interests of the company that leave be granted – where the appellant’s argument does not do justice to the primary judge’s findings – where the primary judge found, implicitly, that the appellant failed to give consideration to the benefits it and the Club had received from the work of the respondent directors and the bearing of its own “inaction” on the conduct of the respondent directors and the legal rights of the Club against those respondents – where one would think it likely that an applicant under s 237, acting in good faith, would turn its mind to the question whether the amount likely to be recovered in the litigation merited the expenditure of time, resources and money which litigation would necessitate – where it was not disputed in argument that it was arguable that approximately half of the claims could be statute barred – where the respondents’ arguments for relief under s 1318 and on the possible application of s 211 are also taken into account, it is plain that there is an appreciable risk that the amount ordered to be paid to the Club, if judgment is given for the appellant, would be a sum which would attract the application of the lowest District Court scale – where the difference between the amount of costs assessed on the standard basis and the Club’s costs of the proceeding could be substantial – where the appellant argues that this does not present a difficulty as the Club will be indemnified for the costs of the action – where that response, however, does not take into account questions such as the distractions to the board and disruption to the business of the Club in what, may be gleaned from the above historical narrative, is likely to be a turbulent time in which considerable demands are likely to be made on the time of the Club’s directors – where against the background of the diverging interests and developing conflict between the appellant and the other shareholders of the company, the failure of the appellant to request the respondent directors to justify their remuneration and to demand repayment before resorting to litigation is significant – where also relevant is the inference available from the correspondence referred to earlier that the appellant had no interest in resolving its claims by means other than litigation – where, finally, it is also relevant to the question of bona fides that the appellant alone, of the Club’s 325 shareholders, supports the proposed derivative action: a proceeding which must be on behalf of the Club and in its best interests – where it does not appear that the appellant has established any error on the part of the primary judge in not being satisfied of the existence of good faith. Appeal dismissed with costs.

McEvoy & Anor v The Body Corporate for No 9 Port Douglas Road [2013] QCA 168 Margaret McMurdo P and Holmes JA and Douglas J 24/06/2013

Application for Leave Queensland Civil and Administrative Tribunal Act – Body Corporate – where the applicants seek leave to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) which set aside an adjudicator’s orders, made under s 276 of the Body Corporate and Community Management Act 1997 – where those orders required the respondent to register a new Community Management Statement stating the applicants’ entitlement to exclusive use of an area of common property in a Port Douglas unit complex – where s 289(2) of the Body Corporate and Community Management Act allows a person aggrieved by an adjudicator’s order to appeal on a question of law to the Queensland Civil and Administrative Tribunal (QCAT) – where a developer contracted to sell a lot in a unit complex with exclusive use of an area of common property – where a general meeting of the body corporate passed a special resolution, which was not contained in the voting paper for the meeting, granting exclusive use – where the exclusive use area was not identified on any plan – where no amended community management statement containing the exclusive use by-law was registered – where more than ten years later the applicants as successor in title of the unit's purchaser successfully applied to an adjudicator for an order requiring the body corporate to register a new community management statement containing the exclusive use by-law – where the committee of the respondent body corporate appealed the adjudicator's decision in QCAT – where the committee failed to obtain a special resolution of the body corporate for the appeal – where the QCAT member failed to deal with the applicants' submission as to the lack of authority – where the body corporate purported to ratify the decision to appeal after a decision was given in its favour – whether the QCAT proceeding was a nullity – whether there could be effective ratification after the proceeding was complete – whether a substantial injustice has occurred by virtue of the want of authority for the QCAT proceeding, warranting leave to appeal – whether the developer could confer exclusive use on a unit holder during the "original owner control period" – whether the resolution granting exclusive use was valid – whether the QCAT member was correct in finding that the exclusive use area was not identified – whether an order in the nature of rectification could be granted where there was no identification of the relevant area – whether the applicants' delay in seeking relief was relevant to any exercise of discretion – where accepting the principle that the effect of ratification is to clothe the agent with authority for the purposes of the unauthorised act, the body corporate was able retrospectively to give the committee authority to mount the QCAT appeal – where that conclusion would be in keeping with the notion that ratification is designed to “remedy an inconvenience”; it seems clear enough that the body corporate wished to appeal, and that its failure to do so was the product of simple oversight as to the level of authorisation required – where there can be no doubt that the failure of the member of QCAT to deal with the submission put to him about the committee’s lack of authority to bring the appeal was an error of law, but neither the proceeding nor his order were rendered invalid by that want of authority – where given the ultimate unlikelihood of any different result purely on the basis of lack of authority for the tribunal appeal, the applicants would not be regarded as having established a substantial injustice warranting a grant of leave to appeal on this ground – where the Body Corporate and Community Management Act did not in 1998, and does not now, contemplate the conferring of a right of exclusive use attached to a lot except by means of an exclusive use by-law – where the member noted that for it to be just and equitable to make the order effectively giving exclusive use to the owner of lot 16, “an explanation had to be given for a decade of delay”; and there had been none – where that feature was entirely relevant to consideration of what was just and equitable. Application for leave refused with costs.



R v Henderson [2013] QCA 146 Holmes and Muir JJA and Mullins J 14/06/2013

Appeal against Conviction & Sentence – Stalking – where the appellant was convicted of unlawful stalking with a circumstance of aggravation – where the appellant and complainant never met but communicated through a dating website, Facebook and text messages – where the appellant’s texts became increasingly offensive and abusive – where the complainant asked the appellant to leave her alone – where the complainant reported the appellant to the police – where the appellant continued to text the complainant – where the appellant appeals against conviction – where the trial judge did not direct the jury as to the statutory meaning of “circumstances” – whether a direction was necessary where the evidence was limited to the relevant circumstances – where the appellant was sentenced to imprisonment for a period of 18 months with a parole release date fixed after five months – where the appellant applies for leave to appeal against sentence on the ground that the trial judge failed to evaluate properly the appellant’s true culpability – whether the sentencing discretion miscarried – where the complainant never met the appellant in person, but they commenced communicating with each other in early to mid January 2011 through a dating website, through Facebook and then by text messages – where the relevant circumstances for the purpose of s 359B(d)(i) Criminal Code 1899 (Qld) were delineated by the ambit of the evidence which was the nature of the contact between the appellant and the complainant, the content of the appellant’s text messages, the complainant’s texts in response, and the complainant’s evidence of her reaction to the appellant’s messages – where the appellant’s counsel at the trial (who was not the counsel on this appeal) put in issue that the appellant’s texts would not reasonably bring about an apprehension or fear in the complainant in the light of the way she responded to the messages sent to her – where the evidence covered the circumstances relating to the conduct relied on to constitute the charge of stalking, whether the term “circumstances” was given its ordinary meaning or the statutory meaning – where there was no misdirection as a result of the trial judge not reading out the definition of the term “circumstances” where the circumstances were confined by the limited evidence that was adduced in the trial – where the trial judge was entitled to consider the overall seriousness of the conduct, even though it became more serious as it progressed – where there is nothing in the trial judge’s findings that point to an error in the evaluation of the appellant’s culpability – where the sentence was imposed after trial, and where there was absolutely no remorse on the part of the appellant, the appellant had a previous conviction for like offending for which he had been imprisoned, and he was found to be at risk of further offending, the sentence that was imposed reflected a sound exercise of the sentencing discretion. Appeal dismissed. Application for leave refused.

cannabis.jpgR v Upson (No 2) [2013] QCA 149 Holmes and Fraser JJA and Daubney J 14/06/2013

Application for Extension (Sentence & Conviction) – where the applicant was found guilty at trial of carrying on the business of unlawfully trafficking in the dangerous drug, cannabis sativa – where the applicant was sentenced to eight years imprisonment – where the applicant’s appeal against his conviction was dismissed and application for leave to appeal against sentence was refused on the merits on 16 August 2011 – where the applicant filed an application for an extension of time within which to appeal again against his conviction and for leave to appeal against sentence – where the applicant sought to rely on different grounds of appeal and new evidence – whether the court has jurisdiction to entertain a second application for leave to appeal against sentence where the first application has been dismissed on the merits of the proposed appeal – where the court refused to grant an extension of time within which to appeal against conviction on 9 April 2013, but reserved its decision on the application for an extension of time for leave to appeal against sentence – whether an extension of time should be granted – where in relation to conviction and sentence alike, a convicted person’s right of appeal is conferred by s 668D(1) Criminal Code 1899 (Qld) and, if the relevant grounds of appeal are established, s 668E confers power upon the Court to set aside or quash the order appealed against and to make a different order in its place – where the relevant legislation reveals no basis for excluding applications for leave to appeal against sentence from the general rule in Grierson v The King (1938) 60 CLR 431 – where it is to be emphasised that, consistently with the importance of the principle of finality in litigation, any exception to the general rule in Grierson must fall within very narrow bounds – where the case of an application for leave to appeal against sentence where a previous application was refused on the merits of the proposed appeal, the mere repetition or refinement of the original grounds of appeal, the formulation of different grounds, or reliance upon new evidence, does not take the case outside the general rule that the Court lacks jurisdiction to hear the second application – where that is what the applicant sought to do in this case – where, accordingly, the Court lacked jurisdiction to hear the applicant’s proposed application for leave to appeal against sentence. Application refused.

methylamphetamine.jpgR v Bradley [2013] QCA 163 Chief Justice, Muir and Fraser JJA 18/06/2013

Appeal against Conviction – where the appellant was charged with various offences, including trafficking and possession of drugs, possession of a weapon and two counts of attempting to pervert the course of justice – where the appellant was convicted of some offences by a jury and acquitted in respect of others – whether the charges of attempting to pervert the course of justice and possession of a machine gun were improperly joined with the drugs charges and thereby constituted a miscarriage of justice – where a prosecution witness was declared hostile after giving different oral evidence to an earlier statement she had purportedly made to police – the witness denied having made the earlier statement – where the statement was not directly admitted into evidence, but parts of it were disclosed in the evidence of a police officer – where the Judge directed the jury in accordance with s 101(1) of the Evidence Act 1977 (Qld) (the Act) but failed to direct the jury as to the weight to be attached to the purported statement, which was a requirement of s 102 of the Act – whether the Judge’s failure to direct the jury on the weight to be attached to the purported statement in light of other evidence constituted a miscarriage of justice – where under s 567(2) of the Criminal Code, charges may be joined if they constitute “a series of offences committed in the prosecution of a single purpose” – where the joinder was justified because the alleged offences were committed in the prosecution of a single purpose, namely trafficking in dangerous drugs – where the principal witness for the prosecution was Neil Janezic, who gave evidence of purchasing methylamphetamine from the appellant, and running the appellant’s trafficking business for a short time – where Janezic gave evidence of visiting Townsville Prison in January 2009 to see Ms Main, who was a prisoner there, to ask her would she be prepared to take responsibility for ownership of 17 grams of methylamphetamine found in a police search, and that she refused – where in her oral evidence, Ms Main gave a different account, to the effect that a stranger called Neil visited her on behalf of Laith (the appellant’s first name) to seek her telephone number so that Laith could contact her – where the prosecution relied on a statement Ms Main allegedly gave to the police dated 17 February 2010, the content of which was consistent with Mr Janezic’s evidence – where Ms Main was declared hostile and cross-examined on that statement – where she denied giving the statement, claiming it was fabricated and that she did not sign it – where the statement was not admitted into evidence, but parts of it emerged through the evidence of a police officer – where the learned Judge’s direction to the jury was confined to a statement that if the jury were satisfied that the statement was Ms Main’s, then “that is proof of the truth of those matters as fact”, which is consistent with s 101(1) of the Evidence Act – where especially because the content of the statement was more damaging to the appellant than Ms Main’s oral testimony, it was necessary for the Judge “to give very careful and very precise instructions” to the jury as to the weight to be attributed to the evidence: Morris v The Queen (1987) 163 CLR 454 – where the risk remains that the jury may have had regard to the content of Ms Main’s written statement in convicting on the trafficking count – where the jury was not directed to ignore the statement when considering that count – where there is risk the jury may have relied on Ms Main’s account of the appellant’s pressuring her to accept responsibility for drugs found on his premises, as being supportive of a trafficking operation – where it suffices to say that it is not satisfied that had the jury been comprehensively instructed in relation to Ms Main’s statement, they would inevitably still have convicted on specified counts – where it is conceivable the jury would have considered it unsafe to rely on that statement, and that in the face of Ms Main’s oral evidence, their doubt as to Janezic’s credibility would have been reinforced. Appeal on specific counts be upheld and that there be a retrial on those counts.

| | | | | |