Hearsay ... the Journal of the Bar Association of Queensland
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Issue 74 - Dec 2015
Court of Appeal Judgment Summary Notes Print E-mail

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The 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. The full text of each decision may be accessed from the Court website which is accessible by clicking the case name.

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

CIVIL APPEALS

Walker & Anor v Brimblecombe [2015] QCA 232 (15/2990) Chief Justice and Gotterson JA and Ann Lyons J 17/11/2015 

Mules v Ferguson [2015] QCA 233 (14/3754) Margaret McMurdo P and Applegarth and Boddice JJ 17/11/2015 

Nelson v Cyran [2015] QCA 226 (14/10948) Margaret McMurdo P and Morrison JA and North J 13/11/2015 

Francis v Crime and Corruption Commission & Anor [2015] QCA 218 (15/2450) Fraser and Morrison JJA and Mullins J 06/11/2015 

Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219 (14/9842) Margaret McMurdo P and Philippides JA and Boddice J 06/11/2015 

Albrecht v Ainsworth & Ors [2015] QCA 220 (14/10847) Margaret McMurdo P and Morrison JA and Martin J 06/11/2015 

Interlink Australia Pty Ltd v Lowe [2015] QCA 211 (14/8585) Gotterson and Morrison JJA and Dalton J 30/10/2015 

Kencian & Anor v Watney [2015] QCA 212; [2015]44 QLR (14/12293) Carmody CJ and Morrison JA and Boddice J 30/10/2015 

Lindsay v McGrath [2015] QCA 206; [2015]44 QLR (14/9012) Gotterson and Philippides JJA and Boddice J 27/10/2015 

Woolworths v Perrins [2015] QCA 207; [2015]43 QLR (15/4917) Fraser and Gotterson JJA and McMeekin J 27/10/2015 

Schultz v Bank of Queensland Ltd [2015] QCA 208; [2015]43 QLR (15/616) Holmes CJ and Philippides JA and Boddice J 27/10/2015 

CRIMINAL APPEALS

R v Wells [2015] QCA 230 (14/68) Holmes CJ and Morrison JA and Dalton J 17/11/2015 

R v Stewart [2015] QCA 231 (14/208) Morrison JA and Atkinson and Applegarth JJ 17/11/2015 

R v CBN [2015] QCA 224 (14/268) Morrison JA and Mullins and Burns JJ 13/11/2015 

R v Brown [2015] QCA 225 (14/315) Margaret McMurdo P and Gotterson and Morrison JJA 13/11/2015 

R v Barker [2015] QCA 215 (14/300) Morrison and Philippides JJA and Carmody J 06/11/2015 

R v Leedie [2015] QCA 216 (15/49) Gotterson JA and Philip McMurdo and Peter Lyons JJ 06/11/2015 

R v RAU [2015] QCA 217 (14/305) Gotterson and Philippides JJA and Martin J 06/11/2015 

R v Nguyen [2015] QCA 205 (15/88) Fraser and Gotterson JJA and Dalton J 27/10/2015 

R v BCY [2015] QCA 200 (15/143) Margaret McMurdo P and Morrison JA and Peter Lyons J 23/10/2015 

R v Simmons [2015] QCA 194 (15/22) Gotterson and Morrison JJA and Douglas J 16/10/2015 

R v Thiemann [2015] QCA 195 (15/117) Gotterson JA and Philip McMurdo and Peter Lyons JJ 16/10/2015 

R v Ali [2015] QCA 191 (15/104) Gotterson JA and Philip McMurdo and Peter Lyons JJ 13/10/2015 

R v BCX [2015] QCA 188 (15/24) Margaret McMurdo P and Philippides JA and Burns J 09/10/2015 

R v Armstrong [2015] QCA 189 (15/43) Holmes CJ and Philip McMurdo and Peter Lyons JJ 09/10/2015 

R v Schoner [2015] QCA 190 (15/135) Gotterson JA and Philip McMurdo and Peter Lyons JJ 09/10/2015 

R v MCG [2015] QCA 184 (14/0152) Fraser and Gotterson JJA and Jackson J 06/10/2015 

R v MacGowan [2015] QCA 185 (14/0246) Holmes CJ and Gotterson JA and Mullins J 06/10/2015 

R v Parker [2015] QCA 181 (15/15) Fraser and Gotterson JJA and Flanagan J 02/10/2015 

R v Chardon [2015] QCA 186 (14/0211) Margaret McMurdo P and Gotterson JA and Jackson J 06/10/2015 

R v Hooker & Solomon [2015] QCA 182 (14/313) Holmes CJ and Henry and North JJ 02/10/2015

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CIVIL APPEALS

Walker & Anor v Brimblecombe [2015] QCA 232 (15/2990) Chief Justice and Gotterson JA and Ann Lyons J 17/11/2015

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – OTHER MATTERS – where the respondent commenced a proceeding for defamation against the appellants concerning a matter published in an email to shareholders in a company and in a document attached to said email – where the email and document were republished to ASIC – where the appellants were unsuccessful in seeking to have the claim and statement of claim struck out – where the appellants’ solicitors, Bennet & Philp and McBride Legal filed a signed “Notice of Appeal” on behalf of the appellants in March 2015 – where the document is not in Form 64 and a separate application for leave to appeal has not been filed – whether the document filed should be treated as a composite Leave to Appeal and Notice of Appeal

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – OTHER MATTERS – where the appellants submitted that the learned primary judge was asked to make a preliminary determination whether in fact the republication was defamatory of the respondent – where this submission is erroneous – where consistent with Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 it was not necessary to determine that question in order to determine whether to strike out the proceeding – where the relevant enquiry was as to whether relevant minds might possibly differ on the issue of capability of bearing a defamatory meaning – where a preliminary determination of the question alone would not necessarily have determined the fate of the proceeding – whether there has been an appealable error

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – OTHER MATTERS – where the appellants submit that his Honour should have held that absent any allegation of malice on the part of Quantum Power, the republication by it attracts defences of qualified privilege which are available to the appellants notwithstanding the alleged malice on their part in publishing in the first instance – where the arguments, as framed here, have not crystallised as a question for determination whether a defence of qualified privilege is ever available to an original publisher in respect of a republication where the original publisher acts without malice – where the parties have not been able to identify any judicial decision in which this question has been considered and decided – where judicial statements indicate that it is the fact that a person is actuated to publish defamatory matter by a desire to injure another which operates to deprive the person of a defence of qualified privilege – where since malice in making the original publication here has been alleged and is deemed not to be admitted, his Honour was correct to hold that there is a need for a trial on that issue – where if malice is proved, it may defeat the appellant’s reliance upon qualified privilege – whether the challenge on this ground must be rejected

Mules v Ferguson [2015] QCA 233 (14/3754) Margaret McMurdo P and Applegarth and Boddice JJ 17/11/2015

PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – ORDER FOR COSTS ON AN INDEMNITY BASIS – where the appellant was successful on appeal – where the appellant sought an order that the respondent pay the appellant’s costs of the action on an indemnity basis, and the appellant’s costs of the appeal on an indemnity basis – where the respondent did not make any submissions as to costs – where the plaintiff made a formal offer to settle under Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) for a sum significantly less than the judgment sum – whether the respondent ought to pay the appellant’s costs of the action on an indemnity basis, and the appellant’s costs of the appeal on an indemnity basis

Nelson v Cyran [2015] QCA 226 (14/10948) Margaret McMurdo P and Morrison JA and North J 13/11/2015

PROCEDURE – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST THE PERSON – QUEENSLAND – GENERALLY – where the appellant, while working as a bouncer in Western Australia, caused the respondent catastrophic brain injury – where the Western Australian District Court awarded judgment in favour of the respondent – where the appellant’s employer and the relevant insurance company, who were parties to the proceedings, went into liquidation – where the appellant was initially represented in the proceedings through his solicitors but did not appear at the trial and his whereabouts became unknown – where the respondent’s efforts to locate the appellant were constrained by the respondent’s financial position and other factors – whether the trial judge erred in the exercise of his discretion in granting the respondent leave to commence enforcement proceedings against the appellant

Francis v Crime and Corruption Commission & Anor [2015] QCA 218 (15/2450) Fraser and Morrison JJA and Mullins J 06/11/2015

JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – where the applicant seeks to appeal the decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”) dismissing him from the Queensland Police Service – where the appeal tribunal held that no reasonable tribunal could have concluded that the sanction of dismissal should be suspended – where the applicant contends that the appeal tribunal misconstrued the QCAT member’s reasons – where the applicant contends that the appeal tribunal failed to take into account the applicant’s conduct and post-suspension performance – whether the QCAT member’s decision was so unreasonable that it lacked an evident and intelligible justification

POLICE – INTERNAL ADMINISTRATION – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – where the applicant was formerly a member of the Queensland Police Service – where the applicant had engaged in improper conduct on multiple occasions – where the second respondent imposed the sanction of reduction in salary for Matters 1 and 3 and suspension from the Police Service for 12 months with no entitlement to salary, entitlement or accumulation of leave for Matter 2 – where the first respondent applied to the Queensland Civil and Administrative Tribunal (“QCAT”) for a review of this decision – where a QCAT member confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2, and instead imposed a 12 month suspension, reduction in rank and dismissal suspended for a period of three years – where the first respondent appealed to the QCAT appeal tribunal – where the appeal tribunal concluded that as a matter of law, the QCAT member’s decision was unreasonable – where the appeal tribunal confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2 and instead imposed the sanction of dismissal – whether the purposes of police discipline would be defeated by a decision to allow the applicant to remain in the police force

Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219 (14/9842) Margaret McMurdo P and Philippides JA and Boddice J 06/11/2015

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – where the applicant sought leave to appeal against a decision of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, upholding a decision at first instance to enforce an entirely oral building contract between the applicant and the respondent – whether a wholly oral building contract is enforceable, having regard to certain provisions of the Queensland Building and Construction Commission Act 1991 (Qld) which provided that a person who entered into non-written contracts for building work above a prescribed amount committed an offence, and related public policy considerations – whether the respondent was entitled to recover the judgment sum on a restitutionary basis

Albrecht v Ainsworth & Ors [2015] QCA 220 (14/10847) Margaret McMurdo P and Morrison JA and Martin J 06/11/2015

PROCEDURE – INFERIOR COURTS – QUEENSLAND – QUEENSLAND CIVIL AND ADMINISTRATIVE APPEAL TRIBUNAL – where the applicant and the respondents are owners of homes in an architectural award-winning multi-dwelling complex, Viridian – where the applicant wanted to extend the deck area of his home – where the applicant could do so only if the body corporate, in an extraordinary general meeting, approved the proposal in his motion without dissent and granted him exclusive use of the common property airspace between his existing deck spaces – where at the extraordinary general meeting, seven of the 23 owners voted for the motion, seven voted against, one abstained, and the remainder did not vote – where the applicant applied for a referral to an adjudicator and sought orders that effect be given to his motion – where the question for the adjudicator was whether the respondents’ opposition to the motion was unreasonable in the circumstances and whether the body corporate acted reasonably in refusing to give its approval – where the adjudicator granted his application and made the relevant orders, giving effect to the motion – where the respondents appealed from those orders to QCATA – where QCATA allowed the appeal and set aside the adjudicator’s orders – where the applicant has applied for leave to appeal to this Court contending that the appeal to QCATA should have been dismissed – where the appeal to QCATA was on a question of law only, and not an appeal by way of rehearing – where the applicant contends that QCATA erred in not clearly identifying the errors of law allegedly made by the adjudicator – where the applicant contends that questions of reasonableness and unreasonableness were questions of fact and it was not open to QCATA to review the correctness of the adjudicator’s fact finding, except on orthodox administrative law grounds – where the applicant contends that QCATA conducted an impermissible merits review – whether QCATA erred in identifying errors of law in the adjudicator’s reasons – whether the application for leave to appeal should be granted – whether the appeal should be allowed

Interlink Australia Pty Ltd v Lowe [2015] QCA 211 (14/8585) Gotterson and Morrison JJA and Dalton J 30/10/2015

APPEAL AND NEW TRIAL – CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – IMPLIED TERMS – where the respondent’s home was situated on two adjoining lots – where the appellant sought to purchase the lots from the respondent – where the appellant only required one lot to build a display home, but was content to buy both lots on the basis they would build a display home on one lot and keep the second for an investment – where the intention of the appellant was that the contracts would be in two different names, Interlink Australia Pty Ltd and Interlink Holdings Pty Ltd – where the two executed contracts were mistakenly both in the name of the company – where the appellant sought to have one of the contracts amended to be in the name of the holding company, and also sought that the respondent have the lots split via the title office – where the respondent refused these requests – where initially the appellant sought performance of both contracts, but at trial sought for specific performance of only one contract, or damages in the alternative – where the trial judge found that subjective intention at the time the contracts were signed was that both lots would be sold together – whether it was the subjective intention of the parties, objectively ascertained, that the contracts be interdependent – whether a term as to contemporaneous settlements should be implied – whether the trial judge gave adequate reasons

Kencian & Anor v Watney [2015] QCA 212; [2015]44 QLR (14/12293) Carmody CJ and Morrison JA and Boddice J 30/10/2015

APPEAL AND NEW TRIAL – DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – TRIAL BY JURY – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the respondent was a school principal at a school attended by the children of the appellants – where the respondent claims that he was defamed by the appellants – where the respondent started proceedings claiming damages for defamation – where the respondent’s Amended Statement of Claim included an election for trial by jury – where the appellants defended the claim – where the appellants signed a request for trial date and sent it to the respondent’s solicitors to action – where the respondent’s solicitors returned the form without ticking Item G, the relevant box for the trial by jury election – where the appellants commenced correspondence regarding this – where the respondent’s solicitors responded that they had been instructed to give up the right to have a trial by jury, by not paying the fees – where the appellants sought orders: compelling the respondent to adhere to his election for trial by jury by paying the fees; or permitting them to do so and allowing those fees to be recovered at the end of the trial; or ordering a trial by jury on the basis that they were entitled to elect for such a trial but had not done so – where the learned primary judge dismissed that application – where the appellant seeks to challenge that decision – whether a party who elects for trial by jury can abandon that election, by refusal to pay the jury fees, in the absence of a court order – whether a trial by jury should have been ordered under Uniform Civil Procedure Rules 1999 (Qld) r 475

Summary Notes

General Civil Appeal – Civil Procedure – Juries – where the respondent was a school principal at a school attended by the children of the appellants – where the respondent claims that he was defamed by the appellants – where the respondent started proceedings claiming damages for defamation – where the respondent’s Amended Statement of Claim included an election for trial by jury – where the appellants defended the claim – where the appellants signed a request for trial date and sent it to the respondent’s solicitors to action – where the respondent’s solicitors returned the form without ticking Item G, the relevant box for the trial by jury election – where the appellants commenced correspondence regarding this – where the respondent’s solicitors responded that they had been instructed to give up the right to have a trial by jury, by not paying the fees – where the appellants sought orders: compelling the respondent to adhere to his election for trial by jury by paying the fees; or permitting them to do so and allowing those fees to be recovered at the end of the trial; or ordering a trial by jury on the basis that they were entitled to elect for such a trial but had not done so – where the learned primary judge dismissed that application – where the appellant seeks to challenge that decision – whether a party who elects for trial by jury can abandon that election, by refusal to pay the jury fees, in the absence of a court order – whether a trial by jury should have been ordered under Uniform Civil Procedure Rules 1999 (Qld), r 475 – where there are three basic defences: (i) no defamatory imputation, (ii) qualified privilege, and (iii) honest opinion – where it seems to be an overstatement to characterize the Reply as a “labyrinth of defences”, or to describe this trial as more burdensome than the average defamation trial – where juries in defamation cases are called upon to decide questions of fact, namely whether the imputations pleaded are conveyed, whether or not the publication is defamatory in the sense complained of, and whether the publication has been defended under defences such as truth, honest opinion or fair report – where the relevant defence here is honest opinion – where the learned primary judge has overstated the extent and impact of the defences, and, for that reason, has proceeded on a mistake as to the facts, or allowed irrelevant matters to guide or affect him. Appeal allowed. Orders made on 17 December 2014 are set aside, and in lieu thereof it is ordered that pursuant to r 475(1) of the Uniform Civil Procedure Rules 1999 (Qld) the trial proceed as trial by jury at the appellants’ election. Costs.

Lindsay v McGrath [2015] QCA 206; [2015]44 QLR (14/9012) Gotterson and Philippides JJA and Boddice J 27/10/2015

SUCCESSION – MAKING OF A WILL – TESTAMENTARY CHARACTER – where the deceased made a Will with the Public Trustee in December 1986 but subsequently revoked that Will – where the appellant believed the deceased died without a last Will, the appellant applied for, and was granted, the Letters of Administration on the basis of an intestacy – where the appellant later located a five page hand-written document in a storage box containing items removed from the deceased’s family home – where the document was inside an envelope which was marked “The envelope contains the Will of”, and contained other personal and financial documents – where the appellant, in his role as administrator of the deceased’s estate, brought an application, seeking an order that the Court pronounce that document in solemn form as the deceased’s last Will – whether that document should be pronounced as the deceased’s last Will

Woolworths v Perrins [2015] QCA 207; [2015]43 QLR (15/4917) Fraser and Gotterson JJA and McMeekin J 27/10/2015

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – WHERE NERVOUS SHOCK OR MENTAL DISORDER – where the respondent was employed by the appellant – where the respondent applied to take part in a management training programme during his employment – where the respondent was accepted into the programme then removed before the programme commenced – where the respondent made a second application for the management training programme the following year but was again removed before it commenced – where the respondent was diagnosed with “adjustment disorder with depressed mood”, “dissociative disorder”, and “substance abuse disorder” following his removal from the programme the second time – where the respondent had a history of drug abuse and depression – where the respondent had not indicated any factors which would negatively impact his performance when applying for employment – where the respondent gave evidence at trial that he had notified the appellant of his vulnerability to psychiatric injury – whether the fundamental findings of fact made by the trial judge should stand – whether the appellant was negligent – whether the appellant’s duty of care as an employer extended to avoiding psychiatric injury liable to be caused by insistence on meeting the criteria for promotion – whether appellant’s alleged breach of duty caused the respondent’s psychiatric injury – whether the respondent’s psychiatric injury was reasonably foreseeable

Summary Notes

General Civil Appeal – Torts – where the respondent was employed by the appellant – where the respondent applied to take part in a management training programme during his employment – where the respondent was accepted into the programme then removed before the programme commenced – where the respondent made a second application for the management training programme the following year but was again removed before it commenced – where the respondent was diagnosed with “adjustment disorder with depressed mood”, “dissociative disorder”, and “substance abuse disorder” following his removal from the programme the second time – where the respondent had a history of drug abuse and depression – where the respondent had not indicated any factors which would negatively impact his performance when applying for employment – where the respondent gave evidence at trial that he had notified the appellant of his vulnerability to psychiatric injury – whether the fundamental findings of fact made by the trial judge should stand – whether the appellant was negligent – whether the appellant’s duty of care as an employer extended to avoiding psychiatric injury liable to be caused by insistence on meeting the criteria for promotion – whether appellant’s alleged breach of duty caused the respondent’s psychiatric injury – whether the respondent’s psychiatric injury was reasonably foreseeable – where one examines the relevant facts pertaining here the employer could not have reasonably foreseen that by taking him off the course for trainee managers there was a risk of causing such mental anguish to Mr Perrins as to result in psychiatric decompensation – where it is not shown that Woolworths had notice of any vulnerability – where there was no prior complaint of this conduct over five years to any medical practitioner, there was no support from any other witness that the conduct had occurred, the one witness that Mr Perrins did identify as having knowledge of his complaints rejected the claim and was not challenged, the obvious opportunities to mention the matter to managers and medical practitioners were not availed of, and there was no pleading of the matter – where the acceptance of Mr Perrins’ allegations cannot be supported – where it seems obvious that the managers at Woolworths did not hold the view that Mr Perrins was unusually vulnerable to psychological stressors as he presumably would not have been offered the position if they detected any such thing – where having reached a very different view to the primary judge the case cannot be left without recording that his Honour was not greatly assisted by the way in which the plaintiff’s case was pleaded and argued – where the pleading seems to have raised a false issue and led to a failure to address fundamental questions of the duty owed, its breach and the causation of harm, despite the efforts of counsel for Woolworths to keep matters on track. Appeal allowed. Judgment below set aside. Judgment entered for the appellant. Costs

Schultz v Bank of Queensland Ltd [2015] QCA 208; [2015]43 QLR (15/616) Holmes CJ and Philippides JA and Boddice J 27/10/2015

EQUITY – GENERAL PRINCIPLES – UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD – where the appellant purchased properties in Highgate Hill and Cotton Tree, both funded by bank loans and secured by registered mortgages – where the appellant was familiar with bank guarantees – where the appellant’s then husband inherited vacant land at Mudjimba Beach – where the appellant funded the building of the family home on that land by selling the Highgate Hill property, and was registered, with her husband, as a co-owner of the Mudjimba Beach property – where the appellant and her husband established a family trust – where the appellant entered into two guarantees, secured by the Cotton Tree and Mudjimba Beach properties, in return for the respondent loaning funds to the trust – where, in respect of those guarantees, the appellant did not receive independent legal advice and signed a waiver of the opportunity to seek and obtain that advice – where each waiver acknowledged the appellant understood the practical legal effect of the documentation and transaction, and the appellant confirmed she understood that if the borrower defaulted, the respondent would be entitled to sue the appellant, as guarantor, to recover the monies due to the respondent – where the appellant claimed she was a volunteer who did not understand the nature and effect of the transaction she entered into with the respondent – whether the trial Judge erred in dismissing the appellant’s claim for relief from her legal obligation to pay the respondent

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CRIMINAL APPEALS

R v Wells [2015] QCA 230 (14/68) Holmes CJ and Morrison JA and Dalton J 17/11/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted by a jury of raping the complainant – where the complainant and her friend, who were both under the influence of alcohol and marijuana, gave partly inconsistent versions of the events leading up to and following the rape – where a family friend of the complainant, who was under the influence of alcohol and painkillers, gave evidence which partly supported the complainant’s version – where the complainant’s mother, who consistently admitted to having a poor recollection, gave evidence which partly supported the complainant’s version – where the complainant, her mother and her friend all gave evidence that the complainant had said that during the offence she was pinned down to a trampoline and that following the offence the complainant was visibly upset – where the jury was in a position to assess the evidence of each of the witnesses in light of their relevant inhibitions at the time – whether the verdict was unreasonable or insupportable having regard to the evidence

APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the rape was alleged to have occurred on the night when the appellant and her friend were at the appellant’s house – where no other possible occasion was raised on the evidence as to when the rape would have occurred – where it was not suggested to the complainant that she may have confused the occasion on which the rape occurred – whether the trial judge erred in failing to direct the jury that they had to be satisfied that the rape occurred on the night that the complainant and her friend were at the appellant’s house

R v Stewart [2015] QCA 231 (14/208) Morrison JA and Atkinson and Applegarth JJ 17/11/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was convicted of murder – where the appellant was a drug user who had purchased drugs from the deceased on numerous occasions – where the appellant had run out of money and drugs – where the appellant was angry with the deceased for failing to provide a discount on an earlier drug transaction – where the appellant was in a psychotic and intoxicated state and broke into the deceased’s unit for the purpose of robbing him – where the appellant carried a metal bar with him and used it to assault the deceased in the course of prosecuting the robbery – whether the jury could be satisfied beyond a reasonable doubt that the appellant had the requisite intention to cause death or grievous bodily harm or to rob at the material time – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – EFFECT OF MISDIRECTION OR NON-DIRECTION – where the trial judge directed the jury on the issue of the appellant’s alleged unlawful purpose – where the appellant contends that the trial judge erroneously directed the jury to consider the appellant’s intent at the time of entering the deceased’s unit rather than at the time of the assault – where the trial judge did not direct the jury on the definition of “robbery” – where the trial judge did not direct the jury on circumstantial evidence in respect of intent – whether the alleged misdirection and/or failures to direct resulted in a miscarriage of justice

R v CBN [2015] QCA 224 (14/268) Morrison JA and Mullins and Burns JJ 13/11/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was charged on indictment with one count of indecent treatment of a child under 16, under care, and two counts of rape – where the complainant was the niece of the appellant – where the complainant gave evidence about a separate and uncharged act of indecent treatment by the appellant – where one count of rape was discontinued on the third day of trial – where the discontinued count and the uncharged act were relied on by the Crown as evidence of other discreditable conduct – where there were features of the complainant’s evidence which compelled the giving of a Robinson direction to the jury – where the appellant was convicted of one count of indecent treatment of a child under 16, under care, and one count of rape – where the appellant appealed against conviction on the basis that the verdicts were unreasonable or insupportable having regard to the evidence – whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant also appealed on the ground that the jury was misdirected as to the standard of proof required before they could act upon evidence of “other discreditable conduct” – where there was no application for redirections at the conclusion of the summing-up – whether there was any error in the directions given to the jury

R v Brown [2015] QCA 225 (14/315) Margaret McMurdo P and Gotterson and Morrison JJA 13/11/2015

APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the application for leave to appeal was filed 11 months late – where the applicant’s only explanation for eight months of that delay was that his lawyers, at the time of his sentence, did not advise him that he could appeal – whether the explanation provided is adequate – whether an extension of time for leave to appeal should be granted

APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to a number of drug related offences, including trafficking in methylamphetamine, MDMA and MDEA over a period of 19 months and was sentenced to nine years’ imprisonment for the trafficking – where the applicant’s offending was very serious and was committed, for the most part, while on bail – where the prosecutor, during sentencing submissions, informed the sentencing judge that MDMA is a Schedule 1 dangerous drug for the purpose of the Drugs Misuse Act 1986 (Qld) – where, in fact, MDMA was a Schedule 2 dangerous drug for a large part of the trafficking period – where the sentencing judge did not place emphasis on the types of drugs trafficked and, instead, focused on the nature, extent and seriousness of the offending – whether the sentence imposed on the trafficking count was manifestly excessive

R v Barker [2015] QCA 215 (14/300) Morrison and Philippides JJA and Carmody J 06/11/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – OTHER CASES – where the applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine and three lesser drug offences and was sentenced to 10 years imprisonment for the trafficking – where police surveillance revealed a large number of wholesale supplies the applicant made but did not identify the amount of drugs sold in some of those transactions – where a search of the applicant’s home revealed $995,250.50 in concealed cash, which formed part of the applicant’s unexplained income – where the sentencing judge rejected the applicant’s explanation for the source of the cash and this finding was not challenged on appeal – whether the sentencing judge erred in finding that the unsourced cash was the proceeds of the applicant carrying on the business of trafficking – whether the sentence of 10 years imprisonment was manifestly excessive

R v Leedie [2015] QCA 216 (15/49) Gotterson JA and Philip McMurdo and Peter Lyons JJ 06/11/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of eight counts – where count 1 charged the appellant with an offence against s 355 of the Criminal Code (Qld), namely, deprivation of liberty – where counts 2, 3, 4, 6, 7 and 8 concerned offences against s 349 of the Code, namely, rape – where count 9 concerned an offence against s 320A(1) of the Code, namely, torture – where count 5 concerned an offence against section 350 of the Code, namely, attempted rape – where the jury found the appellant not guilty in relation to count 5 – where for each of counts 2, 3, 4, 6 and 8 the appellant was sentenced to twelve years’ imprisonment – where by virtue of s 161A(a) of the Penalties and Sentences Act 1992 (Qld), the appellant was convicted of serious violent offences in respect of each of those counts – where on counts 7 and 9 the appellant was sentenced to eight years’ imprisonment and on count 1 to twelve months’ imprisonment – where all prison terms are to be served concurrently – where the complainant attended the appellant’s house to engage in consensual sexual intercourse – where the appellant became aware of messages on the complainant’s phone between her and the appellant’s younger brother – where the appellant then began to deprive the complainant of her liberty and repeatedly assaulted, raped and tortured the complainant – where the appellant advances two grounds of appeal – where the first is that the convictions were unreasonable and unsupported by the evidence – whether the convictions were unreasonable and unsupported by the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – OTHER CASES – where the second ground of appeal is that the learned trial judge erred in refusing to discharge the jury and order the complainant be further examined at the trial – whether the learned trial judge erred and a miscarriage of justice occurred as a consequence

R v RAU [2015] QCA 217 (14/305) Gotterson and Philippides JJA and Martin J 06/11/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after a trial of one count of exposing a child under 12 years to an indecent act and one count of indecent treatment of a child under 12 years – where the complainant child and her mother were the only two witnesses – where there were some alleged inconsistencies in the complainant’s evidence – where the trial judge gave directions as to the need to scrutinise the complainant’s evidence carefully – where the jury were aware of the substantial matters relevant to the complainant’s credit and reliability – whether the verdicts were unreasonable or insupportable having regard to the evidence

R v Nguyen [2015] QCA 205 (15/88) Fraser and Gotterson JJA and Dalton J 27/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of possession of dangerous drugs, namely methylamphetamine and 3,4-methylenedioxymethamphetamine – where the applicant was sentenced to imprisonment for a period of two years and six months – where the applicant was intercepted by police and found to be in possession of 13.051 grams of pure methylamphetamine as well as 0.441 grams of MDMA – where the learned sentencing judge made a finding that the methylamphetamine was to be used for a commercial purpose although his Honour was not prepared to make a positive finding that sales were to be made by the applicant himself – where the applicant was 27 years old at the time of offending, married and had two children – where the applicant had a previous conviction for trafficking in the dangerous drug heroin at the age of 17 – where the applicant submits that the sentence is manifestly excessive in that insufficient regard was given to the applicant’s psychological vulnerability in prison and to the strain placed on the applicant by his wife’s mental illness – where allied with these factors was a further submission that too much weight was placed upon the applicant’s prior offending – whether the sentence is manifestly excessive

R v BCY [2015] QCA 200 (15/143) Margaret McMurdo P and Morrison JA and Peter Lyons J 23/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – where the applicant pleaded guilty to two counts of taking an indecent photograph of a child under 16 years; four counts of indecently dealing with the child; and one count of making child exploitation material – where, on each count, the applicant was sentenced to a term of one year’s imprisonment, the terms to be served concurrently; suspended after four months, for an operational period of two years – where the sentencing judge referred to evidence of uncharged conduct described in a Schedule of Facts – where the nature of the applicant’s interest in the complainant, and that the conduct was not an “isolated lapse”, is apparent from the subject matter of the counts – where there was a real prospect that a victim impact statement described impacts that were, in part, not a product of the charged offences – where the charged conduct played a not insignificant role in the impacts described in the victim impact statement – whether the sentencing judge erred in considering evidence of uncharged conduct – whether the victim impact statement should be taken into account on sentencing

Summary Notes

Sentence Application – where the applicant pleaded guilty to two counts of taking an indecent photograph of a child under 16 years; four counts of indecently dealing with the child; and one count of making child exploitation material – where, on each count, the applicant was sentenced to a term of one year’s imprisonment, the terms to be served concurrently; suspended after four months, for an operational period of two years – where the sentencing judge referred to evidence of uncharged conduct described in a Schedule of Facts – where the nature of the applicant’s interest in the complainant, and that the conduct was not an “isolated lapse”, is apparent from the subject matter of the counts – where there was a real prospect that a victim impact statement described impacts that were, in part, not a product of the charged offences – where the charged conduct played a not insignificant role in the impacts described in the victim impact statement – whether the sentencing judge erred in considering evidence of uncharged conduct – whether the victim impact statement should be taken into account on sentencing – where a case where conduct is alleged to have continued over a period of nine and a half months, involving the relatively regular taking of photographs which qualifies as making child exploitation material, could not rationally be said to be a case where the conduct might be regarded as an “isolated lapse”, or the result of some momentary yielding to temptation – where it follows that criminal conduct of the applicant constituted by the taking of an indecent photograph of the complainant, outside the period specified in count 7, could not be relied upon for the purpose of determining sentence, unless it was the subject of a specific charge, as was the case with counts 1 and 2 – where accordingly the uncharged conduct of the applicant should be disregarded for the purpose of re-exercising the sentencing discretion – where no attempt is made to distinguish between the consequences of the charged conduct, and the consequences of the uncharged conduct, referred to in the victim impact statement – where it would be speculation to attempt to determine the extent to which the complainant would have suffered impacts only from the charged conduct, it seems sufficient to conclude that that conduct played a not insignificant role in the impacts described by the complainant – where in the present case, significant features are the age of the complainant; the fact that she was in her own home and usually in her own bedroom when the offences were committed; the period of time over which the offending occurred; the persistence and frequency of offending conduct the subject of count 7; and the contribution of the offending conduct to the impacts described by the complainant – where apart from the applicant’s relative youth, particularly when the offending began, and his timely pleas of guilty, significant mitigating features are the absence of any criminal history; the strong evidence of substantial efforts to rehabilitate himself; the very low risk of recidivism; the absence of any subsequent offending conduct over a period of more than nine years; the punishment inflicted by his Church; his remorse; his contributions to his Church community; and the fact that in the years subsequent to his offending he has established a business likely to be adversely affected by a period of incarceration. Application granted. Appeal allowed. Sentence imposed at first instance is varied by suspending the sentence forthwith. Sentence imposed at first instance is otherwise confirmed.

R v Simmons [2015] QCA 194 (15/22) Gotterson and Morrison JJA and Douglas J 16/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – OTHER CASES – where at the conclusion of a trial over six days in the District Court at Brisbane the appellant was found guilty of the offence of rape (Count 2 on the indictment) – where the appellant was acquitted on Count 1 which alleged indecent assault of the same complainant – where a conviction was recorded and the appellant was sentenced to five years’ imprisonment – where four days of pre-sentence custody were declared to be time served and no orders were made suspending the sentence or fixing a parole eligibility date – where the appellant was 30 years old at the time of the alleged offending – where the appellant attended the Stock Exchange Hotel to have some drinks with friends – where at the hotel bar, the appellant met the complainant, who was then 22 years old, and her female flat mate – where the appellant had never met them before and he and the flat mate flirted – where at closing time, the three of them left and travelled by taxi to the unit where the complainant and her flat mate resided – where upon arrival at the unit, the complainant went to her room and changed into her sleeping clothes – where the appellant entered her room, asked her if she was “ok” and hugged her, which she reciprocated – where the appellant then tried to kiss the complainant and she pushed him away, telling him that she was “fine” and that he needed to leave the room – where the complainant went into the kitchen to make some toast and the appellant approached her from behind, placed his hands on her hips and pressed his hips against hers – where the complainant removed the appellant’s hands – where the appellant pressed up against her again and tried to kiss her neck and the complainant pushed him away, telling him that he needed to leave her alone; that he was there for her flat mate; and that she had a boyfriend – where at that point, the flat mate came into view and the appellant desisted – where the conduct in the kitchen formed the basis of Count 1 – where the complainant returned to her bedroom and called her boyfriend, to whom she complained about the appellant’s advances – where the complainant fell asleep on the phone – where the complainant said she fell asleep on her stomach with her left leg up, her head facing towards the left and the doona on top of her – where the complainant woke in the same position but with her pants pulled down from behind – where the complainant heard heavy breathing and felt someone inside her and behind her – where with apology to the court, the complainant described the person as “trying to fuck the shit out of me” – where the complainant turned around, saw the appellant and asked him what he was doing, asked him to get off her and then pushed him off her and told him to leave her alone – where the appellant got off her and left the room – where the appellant’s penetrative conduct formed the basis of Count 2 – where the appellant testified that upon reaching the unit he told both the complainant and her flat mate that he would sleep on the couch in the lounge room – where the appellant kept awake, hoping for a chance to have sex with the complainant after noting that she earlier rebuffed his advances but said “we can’t now” which he took as a signal of interest on her part in having sex with him so long as the flat mate did not know of it – where later, the flat mate emerged from her bedroom, approached the appellant and asked him to sleep with her – where at first, the appellant declined but then changed his mind and they went to the flat mate’s room and had sex in her bed – where the flat mate was still quite drunk and the appellant, discouraged, stopped short of ejaculation and then left the room – where the complainant was not aware of the sexual encounter between the appellant and her flat mate – where the appellant said that, later on, he went to the complainant’s room and knocked on the door and when there was no response he entered her bedroom – where the complainant was in a sitting position on her bed and looked as though she had fallen asleep while on the phone – where the appellant got into bed and the complainant stirred and appeared to wake up – where the complainant then rolled on to her side, facing away from him and the appellant followed her into a spooning position with his left arm across her body – where the appellant’s evidence noted that he then began caressing the complainant’s fingers and she gave a reciprocating response with her fingers – where the appellant started to kiss her on the neck and ear and the complainant moved her hips around and backed them up against him – where the appellant kissed her on the cheek and the lips and she responded to the kissing – where the appellant fondled her breasts and moved his hand from that area towards her vaginal area – where the complainant’s apparent receptiveness encouraged the appellant to remove his underwear and continue kissing her in the spooning position, then he began to move her shorts downwards – where the appellant moved onto his knees and was able to gain entry – where the appellant described the sexual intercourse which followed as lasting about two minutes and consisting of him thrusting into her with what he thought was “normal” vigour, and she thrusting back – where the appellant tried to resume kissing the complainant as he had before, but then a “strange reaction” occurred on her part: she immediately stopped her movements and began to tell him to get off her, he did, she grabbed her phone and started yelling at him and he put his underwear on and ran out of the room – where a s 590AA application to exclude the evidence of the sexual intercourse with the flat mate was initially granted but later overturned – whether the learned trial judge erred in overturning the s 590AA application

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the learned trial judge did not direct the jury as to the use that could be made of the first preliminary complainant by the complainant to her boyfriend on the telephone – whether the learned trial judge erred accordingly

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the learned trial judge did not direct the jury that the reasonable grounds for the appellant’s belief must be assessed in his particular circumstances – whether the learned trial judge erred accordingly

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – OTHER MATTERS – where the jury returned a verdict of not guilty on Count 1 but guilty on Count 2 – whether the conviction was unreasonable

R v Thiemann [2015] QCA 195 (15/117) Gotterson JA and Philip McMurdo and Peter Lyons JJ 16/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to serve various terms of imprisonment to be served concurrently with each other but cumulatively upon an existing period of imprisonment – whether the resulting sentences were manifestly excessive – where the sentence imposed for one offence against s 75(1)(b) of the Criminal Code had to be ordered to be served cumulatively by operation s 156A of the Penalties and Sentences Act 1992 (Qld) – where the sentencing judge’s reasons indicated an intention to make the order that the offence against s 75(1)(b) be served cumulatively but did not indicate an intention that the other sentences be served cumulatively – where the other offences were not required to be served cumulatively – apparent inconsistency between the sentencing judge’s reasons and the orders recorded in relation to whether all terms were to be served cumulatively – where, absent an order or any intention expressed in the sentencing judge’s reasons of an intention to make each of the terms cumulative upon the existing period, the sentences were to be served concurrently: Penalties and Sentences Act 1992 (Qld) s 155

R v Ali [2015] QCA 191 (15/104) Gotterson JA and Philip McMurdo and Peter Lyons JJ 13/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – NON-DIRECTION – where the Court made orders allowing an appeal by the appellant against his conviction of an offence against s 210(1)(a) of the Criminal Code (Qld) – where the count on which the appellant was convicted alleged that he unlawfully and indecently dealt with a teenage boy who was then 14 years old – where the appellant was sentenced to release on entering into a recognisance in the amount of $200 on the condition that he keep the peace and be of good behaviour for two years – where on appeal this Court ordered that the appellant’s conviction be set aside and that there should be a retrial on the count – where the complainant’s evidence was that he was visiting the Ipswich City Library with his family – where the complainant was searching through the aisles – where the complainant noticed a man of Indian appearance, the appellant, sitting in a lounge area, staring at him and being “really creepy” – where the complainant noticed the appellant in the same aisle – where the appellant asked the complainant his name and offered his right hand to him for a handshake – where whilst the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand – where it seemed to the complainant that the appellant’s penis was erect underneath his pants – where the appellant asked the complainant for the time – where the complainant checked on his mobile phone and told the appellant the time that he saw displayed – where the appellant said that that was the wrong time and that the complainant should accompany him back to his car so that he could show him the right time – where the complainant was uneasy because he could see that the appellant had his own iPhone with him – where the complainant walked away from the appellant – where the complainant resumed looking for books in the aisles – where the appellant approached the complainant a second time and again offered his hand – where the appellant kept asking if he could drive the complainant home or if the complainant could go back to the appellant’s place – where the appellant put his hands around the complainant’s waist and put his head on the complainant’s shoulder and tried to kiss his neck – where the complainant could feel the appellant rubbing his penis against the complainant’s body – where the complainant found his father and made a complaint to him – where the complainant’s father went searching for the person, the subject of the complaint, but was unable to find him – where at trial the complainant’s reliability was challenged – where during the jury’s deliberations they sent a note that they wished to hear again the evidence of what the complainant had told the male police officer and view the complainant’s evidence in court – where the learned trial judge read the evidence the male police officer gave from his notes of his interview with the complainant and the answers the police officer gave to questions in cross-examination – where arrangements were made for the recordings of the s 93A interview and the s 21AK cross-examination of the complainant to be shown to the jury – where, during the playing of the interview, there was a short adjournment and the jury sent a note saying they did not need to be shown the complainant’s cross-examination – where consequently, the jury were not again shown the recording of the complainant’s s 21AK evidence, specifically the cross-examination of the complainant contained in it – where the appellant contended that in the interests of fairness it was necessary for the learned trial judge to remind the jury of the matters put to the complainant during cross-examination which he accepted – whether the failure of the learned trial judge to direct the jury accordingly occasioned a substantial miscarriage of justice

R v BCX [2015] QCA 188 (15/24) Margaret McMurdo P and Philippides JA and Burns J 09/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of making child exploitation material and two counts of indecent treatment of a child under the age of 16 years with a circumstance of aggravation, that is, that the child was under 12 years – where the applicant was sentenced to six months’ imprisonment for making child exploitation material and 18 months’ imprisonment (suspended after serving six months for an operational period of two years) for the indecent treatment counts, to be served concurrently – where the applicant appealed on the ground that the sentencing judge erred in not making a finding of “exceptional circumstances” under s 9(4) of the Penalties and Sentences Act 1992 (Qld) – where the applicant also appealed on the ground that the sentences imposed were, irrespective of any finding of “exceptional circumstances”, manifestly excessive in all of the circumstances – whether the sentencing judge erred in not making a finding of “exceptional circumstances” – whether the sentences were manifestly excessive

R v Armstrong [2015] QCA 189 (15/43) Holmes CJ and Philip McMurdo and Peter Lyons JJ 09/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – whether the appellant was wrongly deprived of the opportunity to conduct his own cross-examination of the complainant – where the appellant argued he was wrongly charged under s 359E and that the complainant was incorrectly classified as a protected witness under s 21N of the Evidence Act 1977 (Qld) – where the trial judge had no discretion to order otherwise and the appellant’s argument misunderstood the effect of s 359E

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISDIRECTION AND NON-DIRECTION – PRESENTATION OF CROWN CASE – whether the prosecutor misled the court by stating that all persons charged with unlawful stalking are charged under s 359E of the Criminal Code or through inaccurate comments in relation to the element of detriment in that offence – where the appellant misunderstood the effect of s 359E – where the prosecutor’s statements were not inaccurate or misleading

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant alleged fabrications by investigating police officers and irregularities in witnesses’ evidence in relation to evidence regarding the appellant’s identification – evidence irrelevant as no issue about the identification of the appellant at trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – IRREGULARITIES IN RELATION TO JURY – appellant argued the jury did not properly understand that detriment in relation to unlawful stalking must arise reasonably – where the trial judge correctly explained the necessary elements of conduct constituting unlawful stalking – where it was open to the jury to conclude whether the detriment suffered reasonably arose in the circumstances – where the appellant argued the facilities in the jury room were inadequate but provided no evidence to substantiate this claim

R v Schoner [2015] QCA 190 (15/135) Gotterson JA and Philip McMurdo and Peter Lyons JJ 09/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to, amongst other things, dangerous operation of a motor vehicle causing death and grievous bodily harm – where, as a result of the collision, one person died, another was seriously injured, and a third was injured – where, prior to the collision, the applicant had driven about 1,600 kilometres in a little less than 18 hours with some breaks – where, in the course of giving the applicant a speeding ticket about an hour and a quarter before the collision, a police officer noted that the applicant was tired – where the sentencing judge was not prepared to sentence the applicant on the basis that she was then in such a state of fatigue that she ought to have known that she should stop driving – where, at the time of the collision, the applicant was disqualified from driving – where, for the dangerous operation of a vehicle offence, the applicant was sentenced to five years’ imprisonment, suspended after two years – where the applicant applied for an extension of time within which to appeal against her sentence – whether a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension – whether the sentence was manifestly excessive

Summary Notes

Application for Extension (Sentence) – where the applicant pleaded guilty to, amongst other things, dangerous operation of a motor vehicle causing death and grievous bodily harm – where, as a result of the collision, one person died, another was seriously injured, and a third was injured – where, prior to the collision, the applicant had driven about 1,600 kilometres in a little less than 18 hours with some breaks – where, in the course of giving the applicant a speeding ticket about an hour and a quarter before the collision, a police officer noted that the applicant was tired – where the sentencing judge was not prepared to sentence the applicant on the basis that she was then in such a state of fatigue that she ought to have known that she should stop driving – where, at the time of the collision, the applicant was disqualified from driving – where, for the dangerous operation of a vehicle offence, the applicant was sentenced to five years’ imprisonment, suspended after two years – where the applicant applied for an extension of time within which to appeal against her sentence – whether a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension – whether the sentence was manifestly excessive – where for the respondent it was accepted that the extension might be granted, even without satisfactory explanation of delay, if a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension – where the respondent was unable to identify a case where a person had been convicted of the dangerous operation of a motor vehicle causing a death and causing grievous bodily harm to another person, where neither alcohol nor drugs had played a role, and the defendant did not leave the scene, which had resulted in a sentence as high as the present sentence – where a consideration of precedents leads to the conclusion that the sentence which was imposed for the offence involving dangerous operation of a motor vehicle was outside the boundaries of the proper exercise of the sentencing discretion, and was accordingly manifestly excessive. Application for extension granted. Sentence application granted. Appeal allowed, substitute a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years.

R v MCG [2015] QCA 184 (14/0152) Fraser and Gotterson JJA and Jackson J 06/10/2015

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – PROOF AND EVIDENCE – OTHER MATTERS – where the applicant was convicted of an offence of bestiality – where the trial judge made a finding that the applicant was a risk of being influenced to do things she might not have done otherwise – where the trial judge recorded a conviction – whether the trial judge erred in his finding that the applicant was a relevant risk

Summary Notes

Sentence Application – where the applicant was convicted of an offence of bestiality – where the trial judge made a finding that the applicant was a risk of being influenced to do things she might not have done otherwise – where the trial judge recorded a conviction – whether the trial judge erred in his finding that the applicant was a relevant risk – where the industry the applicant was hoping to go into is to work with disadvantaged children – where his Honour’s concern for the protection of the community (including its children) is more than understandable – it is an express purpose for which a sentence may be imposed – where the relevant risk as identified by his Honour, appears to be that the applicant might be persuaded by another person to behave inappropriately or assist that person to behave inappropriately towards or around children – where the circumstances of the offence, as disclosed by the evidence and the submissions before his Honour, did not justify the factual conclusion as to the existence of the relevant risk – where in the unusual circumstances of this case there needed to be some evidentiary link between the applicant’s offence and the relevant risk before it was appropriate to make a finding, on the balance of probabilities, as to the existence of that risk – where the prosecution adduced no such evidence. Conviction set aside and in lieu thereof it is ordered that no conviction be recorded.

R v MacGowan [2015] QCA 185 (14/0246) Holmes CJ and Gotterson JA and Mullins J 06/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was convicted of two counts of murder – where the bodies of the deceased were disposed of in a remote location – where the trial judge gave a direction on post-offence conduct, saying the jury might infer intent from the manner of the disposal of the bodies – where defence counsel agreed to the content of the direction and did not seek a redirection – where the appellant argues that the trial judge should have given a full consciousness of guilt direction – whether the trial judge erred – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 30 years – where the sentencing judge considered that the need for denunciation, punishment and community protection warranted a non-release order substantially beyond the statutory minimum of 20 years – where the sentencing judge deemed the killings, which were execution style and intended to solve financial problems, to be more serious than some of the comparable sentences for double murder – whether the sentences were manifestly excessive

R v Chardon [2015] QCA 186 (14/0211) Margaret McMurdo P and Gotterson JA and Jackson J 06/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was charged with one count of indecent treatment of a child under 16, under care (count 1); four counts of indecent treatment of a child under 16 (counts 2, 3, 5 and 6); and three counts of rape (counts 4, 7 and 8) – where all counts concerned the same complainant and were charged as occurring between September 1998 and October 1999 – where the prosecution did not proceed on counts 3 and 5 – where the appellant was convicted on counts 1, 2, 6 and 7 – where the appellant was found not guilty on count 4 but was convicted on the alternative charge of attempted rape – where the appellant was found not guilty on count 8 but was convicted on the alternative charge of unlawful carnal knowledge – where the complainant gave evidence to support all counts on which the appellant was convicted – where the complainant made preliminary complaints to a school friend, a school counsellor and a psychologist – where the complainant gave evidence that she told the appellant’s two daughters, Angela and Candice that the appellant had abused her – where the complainant visited the appellant’s house a few years later when she was over 16 – where the appellant offered her money if she would have sex with him – where the appellant offered the complainant $1,000 and told her that she could go on business trips with him and be his secret girlfriend – where the complainant agreed – where the complainant signed a piece of paper which she believed was a contract for $1,000 – where the appellant and the complainant then had a consensual, sexual paid relationship for approximately 18 months – where the appellant stated in a police interview that he had no sexual contact with the complainant until she was over 18 – where the appellant’s daughters Angela and Candice both gave evidence denying that the complainant told them that the appellant had abused her – where the appellant contended that the verdicts were unreasonable or cannot be supported having regard to the evidence due to the conflict between the complainant’s evidence and the evidence of Angela and Candice; the discrepancies between the complainant’s evidence and that of preliminary complaint witnesses; and from the generally poor quality of the complainant’s evidence – whether the verdicts were against the weight of the evidence – whether there has been a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – CONSIDERATION OF SUMMING UP AS A WHOLE – where there were inconsistencies between the complainant’s evidence and the evidence of other witnesses – where the appellant contended that the judge did not adequately put the defence case to the jury because the judge did not point out all these inconsistencies – where the judge referred to many inconsistences in the complainant’s evidence and how this may detract from the complainant’s credibility – where the judge referred to the evidence of the defence witnesses and twice directed the jury to read the appellant’s police interview – whether the judge’s summing up fairly placed the defence case before the jury – whether the appellant has been deprived of a chance of acquittal

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant was charged with three counts of rape (counts 4, 7 and 8) – where the appellant was found guilty on count 7 – where the appellant was found not guilty on count 4 but guilty on the alternative offence of attempted rape – where the appellant was found not guilty on count 8 but guilty on the alternative offence of unlawful carnal knowledge – where the judge left the defence of honest and reasonable mistake of fact as to consent under s 24 Criminal Code to the jury only in relation to count 8 – where the appellant contended that had the defence been left in respect of counts 4 and 7 the jury may have acquitted him of attempted rape on count 4 and rape on count 7 and convicted him of the lesser counts of attempted carnal knowledge of a girl under 16 and carnal knowledge of a girl under 16 – where the complainant gave evidence that immediately preceding the commission of count 4 she was “saying no” and “sobbing” – where the complainant gave evidence that during count 7 she was crying and saying “no” – where the appellant told police that he had no sexual contact with the complainant until she was 18 – where there was no evidence before the jury of the appellant holding an honest and reasonable mistake of fact as to consent in respect of counts 4 or 7 – whether the judge erred

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL DISMISSED – where the appellant’s police interview was tendered by the prosecution – where the appellant contended that the judge erred in not directing the jury as to why it was led by the prosecution, how they should use it and how the defence said it should be used – where the appellant contended that if the interview was entirely self-serving it was inadmissible – where the appellant contended that the jury may have reasoned that it was a false denial and treated it as a lie without the benefit of any directions as to lies – where the appellant did not object to the prosecution leading evidence of his police interview – where the police interview was admissible as during it, the appellant accepted the complainant’s account that he had employed her to clean his house and therefore had the opportunity to commit the alleged offences – where the appellant’s counsel did not seek any directions as to lies – where the judge twice directed the jury to read the appellant’s police interview – whether there has been a miscarriage of justice

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the appeal was originally heard on 17 February 2015 – where on 25 March 2015, the appellant applied to re-open the appeal and adduce further evidence – where at the hearing of that application on 14 April 2015, counsel for the appellant stated that if leave to re-open were granted, the appellant would seek leave to amend the notice of appeal by adding a further ground of appeal – where the proposed fifth ground of appeal was that there has been a miscarriage of justice in that the appellant did not, at the trial, have the information contained in the affidavit of Steven John Pike, sworn 16 February 2015 – where Mr Pike’s affidavit exhibited documents, including copies of notes and reports of psychiatrist, Dr John Chalk, and psychologist, Ms Wendy Mackay concerning their consultations with and treatment of the complainant – where the appellant also sought to lead evidence contained in statutory declarations from Matthew Webb and Renee Webb – where the respondent sought leave to adduce further evidence by way of affidavits from an officer in the Office of the Queensland Director of Public Prosecutions and from the complainant – where the appellant then sought to lead evidence from appellant’s solicitor and from a paralegal employed by him – where the complainant deposed that there were two episodes of sexual intercourse with the appellant when she was a child, both at the appellant’s home – where a report of Ms Mackay makes reference to a third episode of sexual intercourse in 1999 at the appellant’s factory – where the complainant denied telling Ms Mackay that any of the appellant’s offending in 1999 occurred at his factory – where the complainant gave evidence that when she was over 16, during her consensual, sexual paid relationship with the appellant, most of the sexual conduct occurred at the appellant’s factory – where the appellant contended that Ms Mackay’s report supported the appellant’s case that the complainant had conflated evidence about aspects of their lawful, consensual paid relationship when she was over 16 into false testimony about fabricated sexual encounters when she was 14 or 15 – whether the application to re-open the hearing of the appeal should be granted – whether the applications to adduce further evidence and to add a further ground of appeal should be granted – whether the appeal should be allowed

R v Parker [2015] QCA 181 (15/15) Fraser and Gotterson JJA and Flanagan J 02/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an offence against s 5(a) of the Drugs Misuse Act 1986 (Qld) in that, he carried on the business of unlawfully trafficking in the dangerous drug methylamphetamine – where the applicant was sentenced to imprisonment for eight years – where a declaration of a conviction of a serious violent offence was made pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld) (“PS Act”) – where the applicant was in custody at the time of sentence – where the offending was committed while the applicant was on parole – where the sentence hearing proceeded on the footing that the applicant’s trafficking activity had taken place over a period of about six months – where s 156A(2) of the PS Act required that because the applicant offended while on parole, his sentence the subject of this application should be served cumulatively with his current sentence – where the sentence of eight years is to commence on 8 December 2015 – where there was no declarable time already served – where the learned sentencing judge took into account the serious violent offence declaration and fixed a parole eligibility date of 1 May 2022 pursuant to s 160D of the PS Act – where by 1 May 2022 the applicant will have served 80 per cent of his eight year sentence – where the applicant’s involvement in the trafficking was described at sentence as a “junior partner” role – where the applicant sourced methylamphetamine – where transactions were organised with persons in Brisbane, the Sunshine Coast, Cairns and South Australia – where the applicant was able to source drugs with a higher percentage of methylamphetamine, up to 75 per cent purity – where the applicant was selling from street level amounts known as “points” to ounces of methylamphetamine – where these were cash transactions interspersed with occasions when the applicant would take payment from customers by way of pseudoephedrine tablets – where the roles carried out by the applicant in the partnership business diversified over time – where on one occasion the applicant part-financed a proposed methylamphetamine production venture to the extent of $9,500 from his drug earnings – where the applicant sourced pre-cursors for further methylamphetamine production and investigated a source of cannabis in South Australia which he expected the partnership could re-sell profitably – where the partnership encountered issues with drug quality and quantity from time to time and the applicant terminated the partnership at the end of May 2012 – where the applicant continued to traffic in methylamphetamine on his own account during June and July 2012 – where the applicant would sell drugs in south-east Queensland and Cairns – where the applicant had served suppliers and at least 15 customers – where the nature of the applicant’s sole trading was described by the learned sentencing judge as “especially … retail” in contrast to the “mainly wholesale” description the learned sentencing judge gave to the trafficking in which the partnership had engaged – where complaints about quality continued – where several of the applicant’s proposed transactions did not eventuate – where the learned sentencing judge found that the trafficking in which the applicant was involved was producing sales of “many tens of thousands of dollars” – where Police arrested the applicant on 15 July 2012 and found 110 grams of methylamphetamine in five containers concealed in the engine bay of his car – where of the 100.88 grams tested, 69.72 grams were methylamphetamine with a purity of the order of 75 per cent – where the applicant had $4,060 in his wallet at the time of his arrest – where despite the scale of the trafficking, the applicant did not possess business acumen and traded on credit – where there were no obvious signs of business success – where the applicant was 37 years of age at the time of this offending and is now 41 years old – where the applicant had been a drug user since his teenage years and was a user of methylamphetamine at the time of the offending the subject of this application – where the applicant had an extensive and relevant prior criminal history – where the learned sentencing judge referred to the circumstances of the applicant’s offending, his age, his drug usage habit and his criminal history, including his twice offending on parole – where the learned sentencing judge observed that the applicant must have been aware of harmful consequences in the community of his trafficking and that courts impose penalties for trafficking calculated to deter would-be offenders from engaging in it – whether the sentence imposed was manifestly excessive

R v Hooker & Solomon [2015] QCA 182 (14/313) Holmes CJ and Henry and North JJ 02/10/2015

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant Hooker was convicted of one count of grievous bodily harm – where the only evidence of his assaulting the complainant came from a witness who, under cross examination, volunteered that Hooker might merely have been a bystander – where another witness gave evidence that Hooker was standing beside her during the incident – whether the verdict was unreasonable

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant Solomon was convicted of one count of grievous bodily harm – where the complainant gave evidence that he thought his jaw had been broken by punches delivered by a short, round Aboriginal man – where the complainant identified a picture of Solomon from a photo board as the man who had punched him – where Solomon contended that the complainant’s identification of him was equivocal and that no other witness described the assault as the complainant did – where Solomon contended that there was a reasonable possibility that a different assault broke the complainant’s jaw – whether the verdict was unreasonable

CRIMINAL LAW – EVIDENCE – IDENTIFICATION EVIDENCE – WARNING ADVISABLE OR REQUIRED – ADEQUACY OF WARNING – GENERALLY – where the appellant Solomon was convicted of one count of grievous bodily harm – where the complainant identified a picture of Solomon from a photo board as the man who had punched him – where Solomon argues that the identification direction given by the trial judge was inadequate as it did not conform to the requirements identified in Domican v The Queen (1992) 173 CLR 555 – where the defence case at trial was not put on the basis of wrong identification, but raised an issue as to whether Solomon’s assault was such as to cause the grievous bodily harm – whether the direction was inadequate – whether there was a miscarriage of justice

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AVERMENTS – UNCERTAINTY, DUPLICITY AND AMBIGUITY – where the appellant, Solomon, was convicted of one count of grievous bodily harm – where, in response to a question from the jury, the trial judge directed that although there were different incidents involving different people, there was an ongoing course of violent conduct – where the appellant argues that the charge was latently duplicitous because the Crown case was capable of establishing more than one assault on the complainant – where the respondent Crown at trial identified the initial assault on the complainant as the one which caused grievous bodily harm – whether the charge involved latent duplicity – whether there was a miscarriage of justice


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