Hearsay ... the Journal of the Bar Association of Queensland
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Issue 81 - Dec 2017
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. The full text of each decision may be accessed from the Court website which is accessible by clicking the case name.




McQueen v Mount Isa Mines Ltd  [2017] QCA 259 (16/12902) Fraser and McMurdo JJA and Brown J 3 November 2017

General Civil Appeals “Limitation of Actions “where Mount Isa Mines Ltd (MIM) brought an action against various defendants (the appellants) alleging breaches of contract and negligence “where MIM filed and served an amended statement of claim (ASOC) without first seeking leave to do so “where the appellants allege that the amended statement of claim added new causes of action which were out of time and for which leave was required “where the key complaint of the appellants in this appeal is that the amendments made to [26] to [29] added a new cause of action by pleading a different case on causation, which was not referred to in [28] of the statement of claim (SOC) “where in particular it is contended that the allegation that MIM was prevented or delayed from carrying out works necessary to achieve a commercial aim of increasing zinc/lead ore throughput by the second half of 2008 is a new allegation and a different case on causation “where the IPA appellants frame the argument slightly differently, contending that the SOC did not plead any material facts in relation to the alleged causal connection between the fire and the claimed consequential loss and the pleading of those facts in the ASOC necessarily constitutes a new cause of action “where the appellants applied to have various paragraphs of the amended statement of claim struck out with no liberty to re-plead “where the primary judge refused the application “whether the primary judge erred “whether the amended statement of claim pleaded new causes of action “whether œcause of action has a different meaning under the Limitations of Actions Act 1974 (Qld) than under the Uniform Civil Procedure Rules 1999 (Qld) “where in accordance with s 16(3) of the Civil Proceedings Act 2011 (Qld), the circumstances in which the rules of court provide for amendments to be made are set out in UCPR r 375 and r 376 “where by expressly referring to the power to permit amendments notwithstanding the expiration of a limitation period, it is evident that the legislative intent of s 16 of the Civil Proceedings Act is that œcause of action in the Civil Proceedings Act has the same meaning as œcause of action under the Limitation of Actions Act “where consistent with this interpretation, r 376 applies where leave for amendment is sought after the relevant period of limitation has expired “where the context in which œcause of action is used in r 376 makes it clear that it does not refer to a meaning other than that which it has under the Limitation of Actions Act “where the limitation on adding a new cause of action in r 376(4) only arises “where the time for instituting proceedings in respect of the cause of action has expired “where œcause of action is an undefined term “where in the context of limitation statutes, the courts have had regard to its meaning at common law “where at common law, a cause of action accrues once the plaintiff is able to issue a statement of claim capable of stating every existing fact which is necessary for the plaintiff to prove to support his or her right to judgment: Central Electricity Board v Halifax Corporation [1963] AC 785 “where the appellants relied particularly upon the decision of PD McMurdo J in Borsato v Campbell & Ors [2006] QSC 191 (Borsato) in support of their contention that it refers to material facts pleaded to claim the relief sought “where in Borsato, PD McMurdo J found that the amended case did plead a new cause of action on the basis that it pleaded a different breach which gave rise to a different assessment of damages, from that already alleged “where the amendments pleaded a breach of the duty to warn as opposed to a breach of the duty of care as to the performance of surgery which was pleaded originally “where his Honour found the amended case involved œa different breach with a different consequence “where in substance it was such a different case from that pleaded originally involving the negligent performance of surgery that it could not be said that the amendments were merely further particularisation of the case already pleaded “where it is unremarkable therefore that a different breach which arose at a different time and gave rise to different damage was characterised as a new cause of action “where his Honour did not find that any change in a pleading amending the damages claimed constitutes a new cause of action “where the decision provides no support for the appellants™ contention “where in this case there was no error by his Honour in finding the amendments did not plead a new cause of action by reference to the meaning of œcause of action as contended for by the appellants “where the amended statement of claim pleaded additional loss “where the appellants contend that the causal link between the alleged tortious breach and the consequential loss was first pleaded in the amended statement of claim “where the appellants contend that the amended statement of claim added a new cause of action by pleading a different case on causation “whether the statement of claim pleaded material facts of the causal connection between the alleged negligence and the consequential damage “whether the additional facts pleaded in the amended statement of claim constitute new causes of action “where the claim here is for loss consequential upon property damage “where there is no claim for pure economic loss which requires different matters to be pleaded to establish a duty of care “where in the present case therefore, the cause of action for negligence, where the breach of duty is said to have resulted in the fire, was complete and time began to accrue when physical damage was suffered by the mine infrastructure as a result of the fire “where the fact that consequential damage was suffered for loss of production and sales of zinc as a result of the property damage caused by the fire does not recommence the time at which time begins to accrue for limitation purposes “where in the context of the present claim for negligence, there is no separate cause of action by amending the pleadings to claim additional loss arising from the same breach “where properly characterised the amendments further particularise the loss “where the primary judge™s conclusion that, applying a broad brush comparison test, the additional facts pleaded in the ASOC do not constitute the addition of new causes of action, but rather, further particularise claims that had been previously advanced, was not in error and was supported by his comparison of the pleading “where the ASOC claims losses under the same four categories as the SOC “where as his Honour found, this is not a case where the amendment sought to allege a different contractual obligation or tortious duty or a different breach. Appeals dismissed with costs to follow the event.

Wagner v Nine Network Australia Pty Ltd  [2017] QCA 261 (16/9199) Morrison and Philippides and McMurdo JJA 3 November 2017

General Civil Appeal “Defamation “where the appellants brought a defamation action in relation to a 60 Minutes broadcast and a subsequent internet publication about the 2011 Grantham Floods “where the primary judge ordered that certain paragraphs of the appellants™ amended statement of claim be struck out on the basis that the imputations pleaded therein were incapable of arising “whether the pleaded imputations were capable of arising as a matter of law “where there is no dispute that the thrust of the broadcast was that the flood that devastated Grantham was not a natural consequence of the rain that had fallen in the previous 24 hours in the catchment area northwest of Grantham but was due to the collapse of the wall of a quarry owned by the appellants to the west of the town “where the broadcast was also capable of giving rise to imputations beyond that concerning the cause of the flood being attributable to the collapse of the quarry wall “where it was also capable of conveying that the collapse of the wall which caused the flood was due to œman-made interventions and failings “where the statements that the deadly flood was a œman-made intervention and that what occurred was œnot just a freak flood but a man-made catastrophe that should have been avoided but wasn™t were capable of being understood as conveying that someone was responsible and at fault for failing to ensure that the quarry wall did not collapse “where on a consideration of the broadcast as a whole, the imputation that the appellants caused the deaths in Grantham by failing to take steps that should have been taken to prevent the wall from collapsing and causing the catastrophic flood was not untenable “where the threshold test as to whether an imputation is unarguably bad or manifestly hopeless is a high one “where the imputation struck out in paras 18(a) and 19 were not able to be characterised as so unarguable that they could not be made out and should not, therefore, have been struck out on that basis “where, given the view that the imputation that the appellants caused the catastrophic flood that turned deadly by failing to take steps that they should have, but did not take to prevent the wall from failing was open and, bearing in mind also the finding by the primary judge, the imputation in para 18(b) that the appellants had œsought to conceal the truth from becoming known about the role [their] quarry played in causing the catastrophic flood that devastated Grantham was also open, it cannot be said that the imputation in para 18(c) is untenable “where that the imputation was available is reinforced by assertions that the town needed to know the œtruth about how the flooding turned œdeadly, the suggestion of the resorting to secrecy in the obtaining of footage in the broadcast and the concerns voiced about the need to preserve the œnow crumbled quarry wall œcould prove to be key evidence “where given these factors, the imputation alleged in para 18(c) of the amended statement of claim was not incapable of arising. Appeal allowed. Orders of the primary judge striking out paras 18(a), 18(c) and 19(a) of the amended statement of claim are set aside. Unless written submissions are filed on costs, the respondents are to pay the appellants™ costs of and incidental to the appeal and the application below. (Brief)

Amos v Wiltshire  [2017] QCA 279 (17/408) Gotterson and Morrison JJA and Flanagan J 14 November 2017

Application for Extension of Time s 118 DCA (Civil) “where the respondent brought a claim against the applicant in 2009 “where Amos sought damages for negligent advice by Wiltshire about the prospects of success in a court application “where the respondent was successful at first instance but the Court of Appeal ordered a retrial “where the Court of Appeal order on 22 October 2010, was that œthe judgment and order of the District Court made on 25 March 2010 be set aside and that there be a new trial of the proceeding “where since the basis of the order for a new trial was that relevant fresh evidence had come to light, which had been previously held back by a failure on Amos™s part to comply with an order for discovery, it is not surprising that the Court of Appeal directed a new trial be held “where on no reasonable reading of the order made on 22 October 2010, could it be suggested that the Court of Appeal was issuing some form of mandatory injunction by which the only thing the District Court could do was have a trial “where it is plain that the Court of Appeal intended that the District Court would be in a position to deploy any and all of its powers under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to progress the proceedings once again to a trial, so that the issues could be finally determined on a proper basis “where the respondent applied for special leave to the High Court of Australia and instituted other proceedings relevant to the appeal judgment “where special leave was refused “where the respondent has not taken steps to proceed to a retrial as ordered by the Court of Appeal “where seven years have passed since the Court of Appeal ordered a retrial “where the primary judge dismissed the proceedings for want of prosecution because of the respondent™s failure to take steps and the risk of unfairness to the applicant “whether the respondent has taken a step in the proceedings “where the learned primary judge found that Amos™s steps by way of appeals were not steps to prosecute the District Court proceedings “where since October 2010, a binding determination that a new trial was warranted to properly determine the issues in the District Court, taking into account the evidence which Amos had withheld because he breached his duty of disclosure “where that provides the prism within which the question of prosecution of the District Court proceedings had to be considered “where of particular importance is the conclusion that Wiltshire was denied a fair trial because Amos breached his duty of disclosure, the result being that the judgment was unfairly obtained “where all of the steps taken by Amos since that time, in courts other than the District Court, have been in an effort to sustain the unfairly obtained District Court judgment, rather than to progress the new trial ordered by the Court of Appeal “where the lack of any reasonable basis for the steps that were taken by Amos prevents them being characterised as prosecuting the proceeding “where Amos™ pursuit of that course deserves censure “where the six years spent subsequent to the Court of Appeal™s decision for a new trial, were occupied largely by baseless attempts to overturn the Court of Appeal™s decision, in a way that cannot be described as progressing the proceedings “whether there is a substantial risk of unfairness to the applicant “where the learned primary judge™s reasoning in respect of the risk from non-genuine recollections is unassailable “where given the finding by the Court of Appeal and Martin J as to Amos™ tailoring of evidence, and the adverse credit findings against him, there can be no great confidence that his account of the new trial will consist of anything but a reconstruction “where the same cannot be said of Wiltshire, but the fact is that such a long period has now elapsed that there must be a risk that genuine memory has gone, and in its place will be the entrenched memory based on previous evidence or previous affidavits “where there has been an extraordinary period of delay and interference with Wiltshire™s life, caused by Amos making attempts to overturn a Court of Appeal decision, and all those attempts have been without a reasonable basis “where there cannot be any real question, but that Wiltshire has suffered prejudice by having the vexation of the case for so long “where overlaying all of those factors is the extraordinary conduct of Amos in refusing to repay that which he had been twice ordered to repay “where Amos™ refusal to comply with orders of the District Court and the Court of Appeal add an extra layer to the prejudice suffered by Wiltshire over the period of delay “where despite having been ordered to repay those sums, Amos acted in defiance of the courts, presumably because of his attempts to overturn the Court of Appeal order of 22 October 2010 “where the fact that those attempts lacked any reasonable basis makes his defiance all the more deplorable. Grant leave to appeal nunc pro tunc. Appeal dismissed. Costs.

Logan APZ Pty Ltd v Council of the City of Logan  [2017] QCA 288 (17/2881) Gotterson and McMurdo JJA and Mullins J 22 November 2017

General Civil Appeal “where the appellant and the respondent entered into an agreement for the lease of land “where the respondent asserted it had terminated the agreement “where the appellant brought a claim for specific performance of the agreement and damages “where the learned primary judge made orders for security for costs on application by the respondent “where the appellant appeals the quantum and form of the security for costs “where Mr Tony Garrett of Hickey & Garrett, Legal Costs Consultants, swore an affidavit on which the respondent relied in support of its security for costs application “where for the appellant, reliance was placed upon the affidavit of Mr Graham Robinson, Barrister, who practises in the area of the law of costs “where having regard to the criticisms made by the parties of their opponent™s respective reports, his Honour determined to make a substantial discount to the respondent™s Part A costs as assessed by Mr Garrett to allow for œcertain matters as identified by Mr Robinson “where his Honour accepted that he should set the security of the costs amounts œhaving regard to the Court scale “where Mr Garrett™s assessment ventured, in an admittedly imprecise way, to convert the hours-based information he was given to what, in his experience, would approximate the outcome if the Scale was applied, incorporating the discretions allowed within it “where Mr Robinson™s approach aligned more with the methodology of the Scale, however his Honour instanced what he considered to be an unrealistic application of it “where in the circumstances, it was clearly open to his Honour to be guided by both reports and to adopt a figure between the respective assessments “whether the learned primary judge erred by having regard to the actual legal costs chargeable between solicitor and client rather than predicting the costs assessed on the standard basis after a trial “where here, the experienced learned primary judge™s feel for the case was instrumental in the impression he gained of the number of documents that would need to be reviewed and the extent to which senior counsel would need to be briefed “where it was also instrumental in his assessment of the likely duration of the trial, which, it might be noted, the appellant has not criticised on appeal “whether the learned primary judge failed to discount his assessment of the amount of security to acknowledge the prospects of an early resolution “where it is accepted that his Honour did not state how he discounted for the prospects of the case collapsing by stating a percentage rate or similar for the discount “where, however, it was neither necessary nor appropriate for him to have discounted in such a manner “where in this context, the process of discounting is not one of allowing discrete deductions for conceivable contingencies that might shorten the proceeding “whether the learned primary judge erred by excluding security in the form of a registered mortgage over land “where it clearly was open to the learned primary judge to have made the order he did make for security by way of bank guarantee “where there was no error in principle on his part in not leaving the form of security to the satisfaction of the Registrar, especially in circumstances where the only other form of mooted security was wholly unparticularised “where it goes without saying that it would not have been a sound exercise of the discretion to order security in the form of a registered mortgage over unidentified land. Appeal dismissed. Costs.

fingerprint.jpgCRIMINAL APPEALS

R v OT  [2017] QCA 257 (17/24) Fraser and McMurdo JJA and McMeekin J 3 November 2017

Appeal against Conviction & Sentence “where the appellant was found guilty by a jury of 14 offences of a sexual nature, committed against his stepdaughter at various times over a three year period “where the appellant was convicted of all 14 counts, and was sentenced to various concurrent terms of imprisonment “where the only evidence of the offences came from the complainant “where three other witnesses gave evidence of her preliminary complaints “where the trial judge instructed the jury that they had to give separate consideration to each charge “where the trial judge summarised each of the final addresses “where those summaries did not contain a particularisation of the counts “where the prosecution™s final address did not repeat the particulars “where the appellant argues that the jury could not have discharged its duty to consider each charge separately without being properly reminded by the trial judge of the particulars in relation to each charge “whether there was a miscarriage of justice because the trial judge did not instruct the jury as to the particular facts which had to be proved for each charge “where in order for the jury to properly consider an individual charge, the members of the jury had to have an understanding, and importantly the same understanding, about what conduct was the subject of that charge “where the case was properly particularised by the prosecutor™s opening and the question is whether that was sufficient for the jury™s purposes, at the end of the trial, when they were considering their verdicts “where although the jury had listened to that opening, much of it would not have been clear in their minds by the end of the case “where it is correct to say that ordinarily a jury should be presumed to have followed the directions of a trial judge “where however, in the present case, there is a real risk the jury did not follow the judge™s instructions to consider each charge separately, because absent a clear recollection and understanding of the particularisation of the prosecution case provided at the commencement at the trial, it is unlikely that the jury could have done so “where even assuming that the jury did consider the charges separately, there is a risk that they each misunderstood what constituted the relevant evidence for a particular charge, or alternatively that within the jury there were different understandings on that matter “where with the exception of counts one and nine, there was a miscarriage of justice “where counts one and nine were of a remarkably different character, for which the jury could not have been under any relevant misunderstanding. Appeal be allowed on the convictions for counts two, three, four, five, six, seven, eight, ten, eleven, twelve, thirteen and fourteen on the indictment. Convictions on those counts be set aside and a retrial be ordered. Appeal against the convictions on counts one and nine be dismissed. Written submissions as to whether the application for leave to appeal against sentence for counts one and nine should be refused.

R v Carlisle  [2017] QCA 258 (17/55) Gotterson and Morrison JJA and Applegarth J 3 November 2017

Sentence Application “where the applicant was sentenced to ten years™ imprisonment for drug trafficking “where the applicant submits that the nominal sentence adopted by the sentencing judge was manifestly excessive and did not reflect the criminality of the offending “where the applicant submits the reduction of two years from the nominal sentence of 12 years™ imprisonment was a manifestly inadequate reduction for his very early guilty plea and the one year served in pre-sentence custody “whether the sentence was manifestly excessive in all the circumstances “where the similarity between R v KAQ; R v KAQ; Ex parte Attorney-General (Qld) [2015] QCA 98 and the applicant in terms of offending, as well as similarities and differences in their personal circumstances, supports an effective sentence close to the indicative sentence for KAQ, namely slightly less than 10 years “where if, however, a similar process of reasoning is adopted to that of the sentencing judge in arriving at a nominal sentence before account is taken of the guilty plea and that nominal sentence is 10 years or more, then the very early guilty plea would be recognised by a substantial reduction from a nominal sentence of not more than 12 years “where either way, one arrives at a sentence of slightly less than 10 years “where upon analysis of the comparable cases, it is concluded that, as a result of inadequate account being taken of the applicant™s very early plea of guilt, he did not receive a sentence of less than 10 years “where the consequence was an automatic non-parole period of nine years rather than a non-parole period appropriate to a head sentence of less than 10 years “where this resulted in a manifestly excessive sentence “where for reasons given, a sentence of slightly less than 10 years seems appropriate before account is taken of pre-sentence custody “where the applicant was not the principal of the business and there is no evidence that he was responsible for procuring any firearms or that he used them “where the imposition of a serious violent offence declaration as a matter of discretion would result in an excessive sentence in all the circumstances “where having taken the plea of guilty into account in arriving at an effective sentence of nine years, it is not considered that the applicant should be eligible for parole at the usual one third point on account of his early plea “where although a subsidiary in the operation, and an addict, he played an essential role in a major trafficking operation “where considerations of personal deterrence, general deterrence and denunciation justify parole eligibility later than the usual one third point. Leave granted. Appeal allowed. Sentence varied by reducing the 10 years term of imprisonment imposed on count 1 to nine years and set aside the automatic serious violent offence declaration. Parole eligibility date of 24 February 2020 be fixed.

R v Berry  [2017] QCA 271 (17/167) Sofronoff P and Gotterson and Philippides JJA 10 November 2017

Sentence Application “where the applicant had conducted a large methylamphetamine trafficking operation and had been a user of methylamphetamine himself “where the applicant was convicted of one count of trafficking in dangerous drugs, one count of possessing a dangerous drug in excess of two grams and three related summary charges “where the applicant was sentenced to 10 years and two months™ imprisonment “where the sentencing judge made a serious violent offence declaration, thereby obliging the applicant to serve 80 per cent of his sentence before being eligible for parole “where the applicant was aged between 24 and 25 years at the time of offending “where there was evidence that he had ceased using drugs and had commenced rehabilitation after being charged with the present offences “where the applicant had secured employment while on bail for the present offences “whether the sentencing judge adequately took the applicant™s rehabilitation efforts into account when imposing sentence “where the applicant submitted that the head sentence of 10 years and two months is an unusual period and the reasons for its imposition are not discernible from his Honour™s reasons “where at the hearing of the application the Crown were unable to explain this peculiar period of imprisonment “where his Honour did not refer to any of the previous sentences relied upon by the Crown and the applicant as comparable “where there were over 10 of these and some of these were capable of informing the sentence in this matter “where these cases, and others like them, demonstrate is that youthful offenders who plead guilty and who have demonstrated sincere efforts towards rehabilitation and, at least, early success at fighting addiction have received significantly lesser terms of actual imprisonment than their older and less pliable colleagues in this industry “where the comparative sentences would indicate that a head sentence of less than 10 years is appropriate in the case of a youthful offender, even one who trafficked at a wholesale level, in cases in which a real and voluntary effort at rehabilitation has been made “where the sentence imposed in this case is inconsistent with the cases referred to and the reasons do not disclose why, in these circumstances, his Honour imposed it. Leave granted. Appeal allowed. Set aside the orders made on Charge 1. Order that the applicant be imprisoned for nine years. Declare that 256 days of pre-sentence custody be imprisonment already served under the sentence. The applicant be eligible to apply for parole after serving four years of his term of imprisonment. (Brief)

R v Succarieh  [2017] QCA 282 ; [2017] 47 QLR (17/88) Fraser and Gotterson and McMurdo JJA 17 November 2017

Appeal against Conviction & Sentence “where the appellant was convicted of extortion by a judge sitting without a jury “where the appellant gave evidence of a belief that the complainant owed money to a third party “where the prosecution alleged several threats were made against the complainant, including threats to take over the complainant™s business, bring the demands to the attention of the complainant™s wife and daughter and cause physical injury to the complainant “where the appellant denied the threat to cause physical injury “whether it was reasonably open to the learned trial judge to conclude that the appellant™s belief as to indebtedness was not based on reasonable grounds “whether it was reasonably open to the learned trial judge to have rejected the appellant™s denial of the threat to cause physical injury to the complainant “where there was no explicit acknowledgment of any debt by the complainant “where the manner in which the appellant arranged to meet, and first met, the complainant supported the finding now challenged “where the appellant did not at first identify himself and he gave the complainant the impression that he was interested in buying the café “where an honest and reasonable belief that a debt was owed and that the appellant was authorised to pursue collection of it could not have provided reasonable cause for making a demand with the threats which were found to have been made, including the threat that the complainant™s legs would be broken if he did not pay “where the appellant claims he had a reasonable and honest belief that a debt was owed by the complainant and he was authorised to collect it “where some of the threats allegedly made by the appellant were unlawful “where s 415(1) of the Criminal Code (Qld) states that a person who, without reasonable cause, makes a demand with intent to gain a benefit for any person and with a threat to cause a detriment, commits a crime “where the appellant submits that, as a matter of law, the phrase œwithout reasonable cause¯ applies only to the demand itself and not to the alleged threat “whether the learned trial judge erred in finding the scope of the phrase œwithout reasonable cause¯ extends to the detriment threatened “where the scope of the application of the phrase œwithout reasonable cause¯ is turned to “where it is adverbial in that it is a qualification upon the act of making a demand “where thus, when a demand is made with such an intent and threat, both are incidents of the making of the demand “where accordingly, the scope of application of the phrase œwithout reasonable cause¯ extends to the detriment threatened in the course of making the demand “where a consideration of whether there is reasonable cause for making a particular demand involves consideration of any detriment threatened in the course of making the demand “where it is not limited to a consideration of whether there is reasonable cause for that which is demanded be done “where the interpretation adopted by the learned trial judge is correct and did not involve an error of law “where it accords better with the ordinary meaning of the language in which s 415(1) is enacted than does the appellant™s interpretation “where it has support in judicial interpretation of the analogous statutory provision in the United Kingdom and has been preferred in decisions of this Court “where the applicant was sentenced to two years and nine months™ imprisonment “where the applicant was already serving a sentence for four years and six months™ imprisonment for Commonwealth offences to which he pleaded guilty “where the parole eligibility date for the subject offending is eight months after the parole eligibility date for the Commonwealth offending “where the combination of the two sentences result in imprisonment for a period of about five years and five and a half months “where the applicant will serve three years and eight months of the combined sentence before becoming eligible for parole “where that period approaches 70 per cent of the total combined sentences “whether the requirement to serve almost 70 per cent of the combined sentences makes the sentence manifestly excessive “whether it was necessary for the learned sentencing judge to explain why the sentence was imposed with that result “where it was not unreasonable for his Honour to require that the appellant serve some period of the period of imprisonment that he was imposing before the appellant would become eligible for parole “where he was not constrained by any requirement that the percentage of the Commonwealth sentence to be served for parole eligibility under it be maintained or not exceeded, when that sentence was combined with the sentence he was about to impose “where the result that the appellant would have to serve approximately 70 per cent was obvious from the interaction of the separately imposed sentences under separate regimes “where no explanation was necessary. Appeal dismissed. Application for leave to appeal against sentence refused.

R v Gibb  [2017] QCA 280 (16/276) Sofronoff P 15 November 2017

Miscellaneous Application “Criminal “where the appellant was convicted in the District Court on one count of entering a dwelling with intent at night while armed and in company and one count of robbery while armed or pretending to be armed “where the appellant has brought an appeal against conviction and sentence “where the appeal is yet to be heard “where the appellant has requested the Registrar to issue 33 subpoenas in relation to her appeal “where some of these subpoenas are directed to the production of documents and some are directed to compel the attendance of witnesses “whether the Registrar should issue these subpoenas before the Court hearing the substantive appeal has decided whether or not it will grant leave to adduce further evidence “where because of the requirement to obtain the Court™s leave before evidence can be called on an appeal, the actual marshalling of the evidence to be called and the calling of witnesses and tendering of evidence in the usual case need not occur until or unless the Court grants leave under r 108 of the Criminal Practice Rules 1999 (Qld) “where the issue of subpoenas will, in most cases, be premature until such leave is given “where in some appeals, perhaps in most appeals, the issue whether a subpoena should issue should be referred to the Court of Appeal as a matter to be determined before the hearing of the appeal proper “where although in the ordinary case the question of leave to adduce evidence will be decided by the Court that is constituted to hear the appeal itself, subpoenas should not be issued in anticipation of leave being granted unless the Registrar, for good reason, thinks it right to do so or the Court makes a direction to that effect “where to do otherwise may result only in inconvenience, disruption, waste of time and cost to parties with no interest in the proceeding “where in this particular case the appellant has applied for the issue of 33 subpoenas, some to compel the attendance of witnesses to give evidence and some to compel the production of documents and other forms of evidence “where it would be premature and unnecessary to issue subpoenas to compel the attendance of so many people when it is not yet known whether the evidence that they can give will be admitted or not. Registrar directed not to issue the subpoenas requested by the appellant until the Court makes a further direction, except for the subpoena directed to Vanessa Brookes of the West Moreton Hospital and Health Service (directed to the production of documents which the appellant says she requires for her imminent bail application). The question whether the remainder of the subpoenas should issue will be directed to the Court that is to hear the appeal. (Brief)

R v Angel  [2017] QCA 287 (17/58) Sofronoff P and McMurdo JA and Boddice J 22 November 2017

Appeal against Conviction “where on 3 March 2017 the appellant was convicted by a jury of two counts of possessing dangerous drugs “where the appellant was sentenced to an effective three year head sentence “where the appellant contends that the trial judge erred in admitting into evidence her admission of past drug use “where the appellant contends that the trial judge erred by excluding evidence of criminal convictions of another occupant of the appellant™s residence “where in ruling the defendant™s admission that she used drugs now and again admissible, the trial judge found the appellant™s statement was œplainly relevant evidence “where a finding that the admission had some probative value rendered the evidence admissible, the trial judge erred in concluding that evidence was not prejudicial, other than its effect to connect the defendant “where the statement made by the appellant was in response to an assertion by police that they suspected the appellant was a drug dealer “where in that context, an assertion by the appellant that she used drugs now and again could not properly be considered an admission supportive of a conclusion that drug users are known to possess drugs in commercial quantities “where any probative value of that statement to the issue in question, namely the appellant™s knowledge of the existence of the drugs the subject of each count, was slight “where by contrast the prejudicial effect of the admission of that evidence was significant, particularly having regard to the Crown™s address to the jury “where in that address the Crown specifically invited the jury to conclude that the probability that the defendant knew of the presence of the drugs was enhanced by the fact that the appellant was a user of drugs now and then “where the evidence of the appellant™s admission had a substantial prejudicial effect over and above its effect in proving the offence “where that evidence could logically add nothing to a determination of whether the appellant knew of the presence of the drugs the subject of the counts or had reason to believe they were present “where the trial judge ruled the criminal history of the child inadmissible as it was relevant “where the child™s criminal history established the child was dishonest generally and inclined to break the law “where it is correct that criminal history contained no previous convictions for drug offences, it did not follow that evidence of the existence of criminal behaviour by that child was irrelevant to the facts to be determined by the jury “where the Crown invited the jury to determine who was more likely to have had drugs buried in the backyard, the œdrug using home owner¯ or the œsober 14 year old child¯ inaccurately conveyed to the jury that the child did not engage in criminal conduct “where in that context the ruling that the child™s criminal history was inadmissible deprived the appellant of the opportunity for the jury to consider, as a real possibility, a conclusion that someone other than the appellant had concealed the drugs in the residence “where that history was relevant as it could rationally show that the character and personality of the child is such that she, rather than the appellant, may have hidden the drugs the subject of the counts “where as a consequence the appellant was deprived of the real possibility of an acquittal of the counts on the indictment. Appeal allowed. Set aside the convictions on counts 1 and 2 on the indictment. The appellant be retried on those counts.

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