Hearsay ... the Journal of the Bar Association of Queensland
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Issue 83: Sep 2018
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.

 

CIVIL APPEALS

Inghams Enterprises Pty Ltd v Kim Yen Tat [2018] QCA 182 (17/5334) Gotterson and Morrison JJA and Bond J 3 August 2018

Application for Leave s 118 DCA (Civil) – where the respondent brought an action in negligence – where the respondent was employed by the applicant – where the respondent was attacked by a third party in the applicant’s car park – where as a result of the encounter the respondent suffered a significant post-traumatic stress disorder injury, which she attributed to the negligence of the applicant – whether the primary judge erred in finding the risk was reasonably foreseeable – whether the primary judge erred in finding the applicant breached its duty of care – whether the primary judge erred in finding the breach caused the injury – where the evaluation which the learned primary judge reached was justified on the evidence before him and for the reasons which he gave – where the judgment which his Honour formed about the risk to female workers in the circumstances revealed by the evidence before him was unremarkable – whether the primary judge erred in inferring that a different course of events would have occurred – where the findings made by the learned primary judge reflected his acceptance of aspects of the expert opinion evidence which had been adduced by the respondent from engineers experienced in risk management and security assessments – where the conclusion which his Honour reached, that the security measures in place were not aimed at protecting employees from third party violence and that the security officers should actually be performing their duties with that risk in mind, was also supported by the evidence to which his Honour referred and cannot be criticized – where although his Honour did make reference to the notice which the applicant gave to its workers after the incident had occurred, that reference was as an exemplar of the sort of proactive response which he thought should have been adopted before the incident and, consequent upon an appropriate examination of risk, as a response to risk – where, given that he did not treat the post-incident conduct as an admission, it was unnecessary for him specifically to advert to the applicant’s submission that he should not do so – where the primary judge found the appellant breached its duty of care by failing to educate its employees to report suspicious behaviour – where the primary judge found the injury would not have occurred “but for” the breach – whether the primary judge erred in inferring that a different course of events would have occurred – whether the primary judge failed to provide adequate reasons – where his Honour’s hypothesis was that with training and instruction, the injury to the respondent would not have happened – where the applicant was justifiably critical of the paucity of his Honour’s reasons on this critical issue – where there was no engagement with the statutory provisions, which require an approach to causation different to that which is the subject of the common law: see Strong v Woolworths Ltd (2012) 246 CLR 182, nor was there any engagement with the evidence of the individuals who had been approached – where finally, there was no engagement with the applicant’s argument at trial that, on the evidence, the proper conclusion was that the respondent had not proved the injury to her would have been avoided had the alleged negligence not occurred – where although his Honour plainly rejected that argument, he did not explain why – where the failure to provide adequate reasons is an error of law: see Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 – where the question here is whether it was correct for the learned primary judge to infer the existence of a particular state of affairs, namely that particular omissions may be regarded as a necessary condition of the occurrence of injury and, therefore, as satisfying the requisite standard of factual causation, because if the omissions had not occurred, it is more probable than not that the injury would have been avoided because a different course of events would have occurred – where the question is whether at least one of the workers involved in the three encounters which took place between 11.00 pm and 11.45 pm would have would have been sufficiently concerned about Brain (the assailant) that they would have called security and reported the facts justifying that concern – where the evidence of the female workers Brain approached was that Brain’s conduct caused each of them to experience a degree of apprehension – where however, the degree to which that occurred varied and the level of apprehension which they say they experienced must be thought to have been expressed by them through the prism of hindsight and with the knowledge that Brain had actually posed a danger to them – where the result is that it was not open for the learned primary judge to make the finding which he did concerning the likelihood of a report actually being made – where if a security guard had received a report from one or other of the female workers approached by Brain which said his behavior was suspicious and reported the facts said to justify that concern, the question is whether the guard would have left the security office and would have found Brain and required him to move on – where the most which could be legitimately inferred is that, if a report had been made, the guard would have been left with a heightened state of awareness as to the possibility that a male person in the car park might pose a threat to female workers – where the question is whether, if a security guard had required Brain to leave the car park, Brain would have complied, and, critically, would not have come back in time to encounter and injure the respondent – where it must be recalled that there were people wandering out into the car park all the time and there were always workers who liked to hang around in the car park after work to have a gossip, smoke or wait for their friends – where Brain was determined to do what he had apparently set out to do, and was not necessarily responding rationally to what should, rationally, have been treated as a sufficient deterrent on the night in question – where the applicant has demonstrated that the primary judge erred in relation to the question whether the applicant’s breach of duty caused the respondent’s injury – where the error was fatal to the respondent’s claim against the applicant. Applicant is granted leave to appeal. The appeal is allowed. The judgment of the primary judge is set aside and in lieu thereof it is ordered that judgment is entered for the applicant on the respondent’s claim. Costs

Intensia Pty Ltd v Nichols Constructions Pty Ltd [2018] QCA 191 [2018] 34 QLR (18/766) Fraser and Gotterson JJA and Atkinson J 17 August 2018

General Civil Appeal – where the parties contracted for the sale of the land – where it was held at first instance that the appellant’s termination of the contract was not justified – where the appellant argued on appeal that its termination was justified as the respondent had breached cl 7.4(3)(a)(ii) of the standard REIQ contract in its warranty that it was not aware of any facts or circumstances that may lead to the land being classified as contaminated land under the Environmental Protection Act 1994 (Qld) (EPA) at the time of contract – where the respondent had demolished dwellings on the land before entry into the contract – where, after the date of contract, the demolition of the buildings caused the contamination of the land with asbestos – whether the phrasing “may lead to” should be construed broadly to incorporate mere possibility – whether the respondent had breached cl 7.4(3)(a)(ii) such as to give the appellant a right to terminate – where the EPA provides how the administering authority can or must be notified that land is contaminated land – where it knew from the approval of its application for demolition of the buildings that the buildings may contain asbestos – where the seller engaged a builder to conduct the demolition – where the fact that contamination did occur in this case cannot be used as ex post facto justification for holding that the seller must have been aware that that might happen and so have been obliged to disclose it in the contract or be in breach of the seller’s warranty found in cl 7.4(3)(a)(ii) entitling the buyer to terminate the contract – where there was no basis for the seller to form the view, at the relevant time, that the land might become contaminated by a hazardous contaminant which would oblige it to report that contamination to the administering authority within 22 business days – where there was no evidence capable of suggesting that the seller was aware of any facts or circumstances at the time it entered into the contract which could lead to the land being listed as contaminated land as a result of the statutory process set out in s 373 and s 374 of the EPA. Appeal dismissed. Procedural orders on costs

Kelly & Anor v Slade & Anor [2018] QCA 197 (18/191) Sofronoff P and Morrison JA and Atkinson J 28 August 2018

General Civil Appeal – where the appellants commenced proceedings to recover money which they said was agreed to be paid by the respondents in consideration of the transfer of the appellants’ interests in certain farm land – where in the course of discussions regarding the transfer, two documents were drawn up in lieu of a properly executed contract – where the learned primary judge made findings about the credibility of the witnesses but did so with reference to only part of the evidence – where the learned primary judge failed to take into account the two contemporary documents when testing the veracity of the witnesses – where because of the of the way the appeal was conducted it is not necessary to set out the competing submissions – where the central point concerned the construction and true significance of Exhibits 4 and 14 – where on the appeal particular emphasis was laid on the way in which the learned trial judge took into account Exhibits 4 and 14, which were created contemporaneously with the transaction – where Exhibit 4 was a handwritten document called a “written agreement”, created by Mrs Slade (the first respondent), and signed by Mr and Mrs Slade (the first and second respondents) and Gordon Kelly (the first appellant) – where Exhibit 14 was a letter from the solicitor acting for Mr and Mrs Slade to their bank, confirming that Gordon Kelly had “agreed to sell his share of the property to Vicki & Danny Slade in exchange for payment of $240,000 …” – where the case was one where, on the findings by the learned trial judge, the witnesses who were centrally involved in the conversations concerning the sale, Gordon Kelly and Mrs Slade, were found to be unreliable in one way or another – where that being the case one would normally expect to find that the contemporaneous documents would assume particular significance in the assessment of the credibility and reliability of the competing versions – where that did not happen here – where the competing versions were summarised, and what each of them said about Exhibit 4 and what the Slades said about Exhibit 14 was recorded, but when the learned trial judge made findings about the credibility and reliability of the witnesses those Exhibits did not feature in the analysis at all – where the learned trial judge made no analysis of Exhibits 4 and 14 before reaching his conclusion in the Reasons below, that the plaintiffs had failed to establish their case – where in a case where there was no properly executed contract and competing versions as to what was said, the contemporaneous documents would normally have been critical to the consideration of acceptance or otherwise of the evidence – where each of those documents records that there was an agreement with Gordon Kelly that he be paid $240,000 for his share – where looking at the Reasons below overall it appears to be the case that that the learned trial judge did not give any consideration to Exhibits 4 and 14, and the Form 1 Transfer, as being contemporaneous evidence of the price to be paid to Gordon Kelly – where the evidence given by the Slades was contrary to those documents yet their impact on their credit and reliability was not brought to bear. Appeal allowed. Orders made on 7 December 2017 dismissing the plaintiffs’ claim and 5 March 2018 as to costs are set aside. A retrial is ordered. The costs of the first trial are reserved to the trial judge hearing the retrial. Respondents are to pay the costs of the appeal.

Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 (18/7880) Gotterson JA and Boddice and Jackson JJ 31 August 2018

General Civil Appeal – where the appellant was refused an application under s 111 Liquor Act 1992 (Qld) (LA) to alter ID scanning commencement time for the Caxton Hotel on three dates when events were to be held at nearby Suncorp Stadium – where QCAT set aside the appellant’s decision and altered the ID scanning commencement time – where the appellant submits QCAT erred in finding that s 142ZZB LA conflicts with Part 6AA LA – whether QCAT did so find – where the appellant submits QCAT erred in failing to expressly refer to s 121 LA which sets out mandatory considerations – whether express reference to s 121 LA was required – where the appellant submits QCAT erred in applying a “balancing exercise” drawn from applications for exemptions of areas from ID scanning to an application for alteration of times for ID scanning – whether such applications are distinct – where the appellant submits QCAT erred in failing to give priority or primacy to s 3(a) LA among the purposes of the Act – whether QCAT misdirected in law as to the weight to be given to s 3(a) LA – where the appellant submits QCAT erred in failing to expressly consider appellant’s statement of reasons – – where it should be noted also that QCAT was required to make its decision urgently on 10 July 2018 because the State of Origin match was to be held the next night – where the reasons were accordingly given ex tempore – where as well, it should be noted that such reasons are not to be assessed by the standards that apply to the reasons of a court, but by those that apply to the tribunal – where the appeal to this court is one that a party to the proceeding for the decision of QCAT may bring, “but only if the appeal is on a question of law”: see s 35(3) of the LA – where photographic and other evidence before QCAT showed that on a major event day, such as a State of Origin rugby league match, Caxton Street is closed to vehicle traffic from Petrie Terrace in the direction of the Suncorp Stadium to a point past the Caxton Hotel – where after the event, spectators leaving Suncorp Stadium stream up Caxton Street towards Petrie Terrace across both the footpath and the road surface of Caxton Street – where at the same time, patrons seeking to enter the Caxton Hotel line up from the entrance (at which ID scanning would be performed), across the footpath and the road surface – where the outcome is a conflict in pedestrian traffic movements between the stationary line of patrons waiting to enter the Caxton Hotel and the spectators leaving Suncorp Stadium and walking up Caxton Street toward Petrie Terrace – where QCAT noted that the ID scanning obligations created under Part 6AA LA might operate in a way that conflicts with the obligation to provide and maintain a safe environment in and around the premises, under s 142ZZB LA – where QCAT did not hold that the ID scanning obligations must give way to the obligation to provide and maintain a safe environment under s 142ZZB LA – where it is unnecessary, therefore, to decide whether, properly construed, s 142ZZB LA would operate in priority to the ID scanning operations in the event of a potential contravention of s 142ZZB LA – where there is no distinction between the approach to a discretionary decision to be made under s 111 of the LA in relation to the application of conditions for ID scanning as between an application for exemption of an area, on the one hand, and an application to alter the regulated ID scanning times, on the other hand, as a question or matter of law – where no question of law is raised based on the distinction between those two kinds of applications – where the appellant relied on QCAT’s reference in the ex tempore reasons to the rivalries between States that can be quite intense amongst spectators at a State of Origin match as possibly causing heightened tensions – whether or not there was specific evidence supporting that fact, to make such a finding was not an error of law for the purposes of grounding an appeal on an error of law – where the appellant submitted that the finding that there was potential for aggression and violence between people in the queue entering the Caxton Hotel and spectators streaming up Caxton Street was hypothetical – where the challenge sought to be raised is to QCAT’s finding of fact that there was a potential for aggression and violence and is not a question of law that will ground an appeal on an error of law. Appeal dismissed. Costs.

CRIMINAL APPEALS

R v RAZ; ex parte Attorney-General [2018] QCA 178 [2018] 32 QLR (17/306) Sofronoff P and Gotterson JA and Boddice J 3 August 2018

Sentence Appeal by Attorney-General (Qld) – where the respondent was convicted of 18 sexual offences committed against his step-grandson over the course of a period of 12 years – where the Crown submitted for a head sentence of between 10 and 12 years imprisonment at first instance – where defence counsel at first instance submitted that a head sentence of eight years imprisonment was appropriate – where all sentences were ordered to be served concurrently and the respondent was sentenced to a head sentence of nine years on the first count, that of maintaining a sexual relationship with a child under 16 – where the appellant complained of four errors on the part of the learned sentencing judge – where the period of offending was a very important factor to be considered – where the respondent’s position as a magistrate was a relevant factor as it put him in a special position to fully appreciate the deleterious effects of sexual offences upon children – where the combination of the complainant’s age, the length of the offending and knowledge of the effects of the offending on the complainant made this an exceptional case – where the respondent has shown no remorse whatsoever for his crimes – where he pleaded not guilty and instructed his counsel to put to the complainant in cross-examination that he had made up a story to get money – where after the jury convicted him, the respondent refused to accept their verdict and proclaimed himself to be innocent of all charges – where this was a remarkable case in which the respondent began his sexual victimisation of the complainant when he was only four or five years old – where he used his position of trust and the opportunity it gave him as the child’s putative grandfather to enable him to satisfy his perversions – where he persisted with his predation until after his victim turned 16 – where in this way he devoured the complainant’s whole childhood and thereby ultimately corroded his whole life – where the period of the offending and when it occurred in the child’s life, therefore, was a very important factor to be considered – where so too was the respondent’s position as a magistrate – where as a magistrate hearing cases of sexual offences the respondent was in a special position to gather knowledge from the mouths of victims about the effect of sexual offences upon children – where the respondent’s position as a magistrate meant that, while he was committing these crimes, he knew very well what his criminal acts were doing to his victim and would continue to do – where a sentence that properly reflects the respondent’s offending, the circumstances of that offending and of his character and which properly reflects the community’s expectation that the Court denounce such crimes, calls for a sentence in respect of the maintaining offence of 11 years imprisonment. Appeal allowed. Sentence of nine years imprisonment on count 1 of the indictment be set aside. Respondent be sentenced to 11 years imprisonment on count 1 of the indictment. The conviction on count 1 of the indictment be declared a serious violent offence.

R v LAL [2018] QCA 179 (18/12) Sofronoff P and Crow and Ryan JJ 3 August 2018

Sentence Application – where the applicant was convicted, after a trial, of two offences of indecent treatment of a child under 12 – where the offences were committed when the applicant was a child but he was convicted as an adult – where the applicant was sentenced to imprisonment for four months for count 1 and nine months for count 2, to be served concurrently, wholly suspended, for an operational period of nine months – where those sentences carried convictions – where counsel for the applicant submitted that the applicant should have been sentenced to a period of probation to allow for an order that no convictions be recorded – where apart from informing his Honour of the incorrect maximum penalty which would have applied had the applicant been sentenced as a child (it was seven years’ detention, not five), the prosecutor said nothing more about the sentence that might have been imposed upon the applicant had the applicant been sentenced as a child – where neither he, nor defence counsel, referred to examples of children sentenced, as children, for like offending – where neither he, nor defence counsel, referred to the relevant principles, contained in ss 4 and 109 of the Juvenile Justice Act 1992 (Qld) (YJA), which would have applied had the applicant been sentenced as a child – including that detention was a last resort – where his Honour should have been referred to R v PGW (2002) 134 A Crim R 593 for the guidance it provides to sentencing courts dealing with an offender in accordance with s 144 of the Youth Justice Act 1992 (Qld) – where it has been considered or applied many times at first instance in comparable cases, resulting often in orders under s 19(1)(b) of the Penalties and Sentences Act 1992 (Qld), including in cases involving more serious offending than the applicant’s – where in the absence of assistance from counsel, and not having been referred to relevant authority, his Honour erred in his approach to s 144 of the YJA, and in particular the application of s 144(2)(b) YJA – while his Honour had regard to the sentence that might have been imposed upon the applicant had he been sentenced as a child (namely, probation), and discounted its present utility for the rehabilitated applicant, his Honour did not consider whether there was a reason to sentence the applicant more harshly as an adult – where also, in the absence of assistance, his Honour erred in concluding that the applicant would have “exposed himself [as a child] to the potential of a detention order for offending of this nature, particularly after pleas of not guilty” – where that is not borne out upon a consideration of comparable cases, nor upon the application of the relevant principles which would have applied to the applicant’s sentence as a child – where the applicant has matured into a law-abiding, productive member of the community – where not only is there a real risk that the findings of guilt per se will hinder the applicant in his contemplated future employment as a nurse but there is also a real risk of additional social prejudice attaching to the recording of convictions, including by his becoming a “reportable offender” – where sentencing the applicant is difficult – where he is an adult to be dealt with for sexual offences committed upon a child, but he was himself a child, albeit an adolescent, and a victim of child sexual abuse, when the offences were committed 17 years ago – where had the applicant been sentenced as a child, he would have been sentenced to a period of probation with no conviction recorded, to encourage his rehabilitation – where taking into account all relevant matters, a harsher sentence than that which might have been imposed upon the applicant had he been sentenced as a child is not warranted – where nothing calls for his rehabilitation or support (cf probation) – where nothing suggests that he must account for himself into the future (cf a bond, or as a “reportable offender”) – where nothing suggests that a recorded conviction should follow him – it is unlikely that he will sexually re-offend against children, and he is, regardless, a disqualified person – where notwithstanding the finding that a harsher penalty is not warranted, the delay in the applicant’s prosecution for this offending means that his social and occupational standing has in fact been affected to a greater extent than it would have been had he been sentenced as a child – where having regard to all proper matters, including the applicant’s age when the offences were committed, his rehabilitation and demonstrated good character thereafter, and the social and occupational consequences of the findings of guilt per se, only nominal punishment, in addition to those consequences, should be imposed upon the applicant – where that is not to suggest that the complainant has not been criminally wronged – where she has been, and she has suffered because of it – where having pleaded not guilty, notwithstanding his apologies during the pretext call, the applicant cannot claim to have demonstrated remorse by sparing the complainant the necessity of having to give evidence. Application for leave to appeal granted. Appeal allowed. Sentences imposed at first instance are set aside. In lieu thereof, the applicant is to be released upon his entering into a recognisance, in the sum of $500, on the condition that he be of good behaviour and appear for conviction and sentence if called upon at any time during the next two months. No convictions are recorded.

R v Trebeck [2018] QCA 183 (16/331) Morrison and McMurdo JJA and Boddice J 7 August 2018

Appeal against Conviction – where the appellant was convicted of murder after a 13 day trial – where the case against the appellant was circumstantial, with no evidence of motive, and relied upon post-offence conduct of the appellant – where manslaughter was properly left for the jury as an alternative verdict despite not being a feature of the defence case – where the Crown retained the onus of proving intention and the jury retained the obligation to exclude any inference consistent only with manslaughter – where it was submitted by counsel for the appellant that the directions given by the learned primary judge allowed the jury to rely on the post-offence conduct as evidence of consciousness of guilt of murder, without considering whether that conduct could only point to consciousness of guilty of manslaughter – where the Crown submitted that the Edwards v The Queen (1993) 178 CLR 193 direction given by the learned primary judge had been effective, in the context of the summing up as a whole, and that R v Mitchell [2008] 2 Qd R 142 could be distinguished – where the directions in this case suffered in the same way as those in R v Murray [2016] QCA 342 and Mitchell – where first, it is doubtful that the jury would have understood that they may use the evidence of the lies as an indication of a consciousness of guilt of murder, only if they were satisfied that the lie was not told out of a consciousness of guilt of the manslaughter – where unless the jury rejected the factual possibility that the lies were only referrable to the manslaughter, they should not have taken them into account only in respect of the question of intent on the murder – where, secondly, there was no direction to the jury requiring them to consider whether the conduct was consistent only with a consciousness of guilt of manslaughter – where thus, the jury may well have understood that they could consider the lies only in respect of the murder charge, without first considering whether they applied to the manslaughter – where as was said in Mitchell, where the accused is charged with murder, but the lesser offence of manslaughter is available, “it is of critical importance to identify what is in issue at the trial and what precise admission is established by the lie” – where in considering that question the admission that the killing was unlawful assumed some significance – where it meant that in respect of the manslaughter alternative the fact that the deceased had been killed unlawfully was admitted – where it followed that if the jury reached the conclusion that it was the appellant who killed the deceased, a verdict of manslaughter would necessarily follow – where therefore in respect of that charge the admission to be established by the lies in the post-event conduct was simply that it was the appellant who killed the deceased – where on the murder charge, the position was different – where one thing was common, namely that one admission sought to be established by the post-event conduct was that the appellant was the killer – where, however, as the jury were told on several occasions, the second admission that the post-event conduct was relied upon to establish was that at the time of the killing the appellant held the intent to kill or to do grievous bodily harm – where even though that is so, that does not avoid the difficulty that the jury were not directed to consider whether the post-event conduct, and more specifically the lies, were referrable only to a consciousness of guilt of manslaughter, rather than a consciousness of guilt of murder – where as a consequence, the jury were not directed as to how to approach those questions, nor given any assistance as to whether the identified lies and other post-event conduct bespoke a consciousness of guilt of the one offence (manslaughter) as opposed to the other (murder) – where as was said by Keane JA in Mitchell it was necessary to ensure that the jury clearly understood that they might use the evidence of the lies as an indication of consciousness of guilt of murder only if they were satisfied that the lies were not told out of a consciousness of guilt of manslaughter – where having been given no guidance in that respect there is an obvious risk that the jury did not reason properly in dealing with that category of the evidence – where reference to the identified lies leaves open the suggestion that some or all of them could be said to be referrable only to a consciousness of guilt of manslaughter, rather than indicative of an intent in relation to murder. Conviction be set aside and a retrial ordered

R v Brock [2018] QCA 185 (17/245) Sofronoff P and Morrison JA and Brown J 7 August 2018

Appeal against Conviction & Sentence – where the appellant/applicant was convicted after a trial of three counts of indecent treatment of a child under the age of 14 years – where the alleged incidents occurred between 1982 and 1985 in the context of a “Big Brother” program run by the Catholic Church – where it was submitted on behalf of the appellant/applicant that both the complainant and his mother were unreliable witnesses – where the preliminary complaint evidence was ambiguous due to conflicting accounts – where the passage of time was significant – where the complainant had suffered from alcohol and medical issues, including periods of blacking out – where the Crown submitted that any inadequacies or discrepancies did not taint the probative force of the evidence – whether the verdict was unreasonable or insupportable having regard to the evidence – where the fact that the evidence concerning the incidents and subsequent events, including dates in relation to the program, displayed some inconsistencies or lack of particularity, does not compel the view that the evidence should have been rejected by the jury – where the passage of time explains them, and the Longman direction (Longman v The Queen (1989) 168 CLR 79) dealt with it – where evidence was given that after the complainant had told his mother of the alleged incidents, she wrote a letter of complaint to the organisation – where that letter was not sent to the appellant, nor was there any suggestion that the mother had communicated the contents of it to the appellant – where three or four weeks after that letter was sent, the mother gave evidence that the appellant/applicant arrived at her front door and said, “I thought you would have wanted me to do that” – where the mother assumed he was talking about the sexual assaults – where during the trial the statement was continually referred to as an “admission” and a “confession” – where on appeal, the question arose as to whether what was said by the appellant could have amounted to an admission of guilt at all – whether the evidence as to the alleged confession was admissible – where in those circumstances it is not possible to draw out of the exchange at the front door any admission as to the alleged sexual misconduct – where one might infer that the event which prompted the appellant’s arrival was the complaint letter and the withdrawal from the program, but the mother’s question and his response did not go as to the nature of the complaint – where it could not be construed as an admission in relation to any alleged sexual misconduct – where if words spoken by an accused are reasonably capable of being construed as an admission by the accused, they are admissible – where in that situation it is for the jury to determine whether or not the words amount to an admission and what weight, if any, the admission should be given – where, however, here the words were not reasonably capable of being construed as an admission – where therefore the evidence of the appellant’s response was not capable of constituting an admission of guilt, and was inadmissible – where in the circumstances it was wrongly admitted, and, as the Crown concedes, one cannot conclude that it had no influence on the jury’s consideration of guilt – where the final result was that the jury were left to grapple with that piece of evidence when they should not have been doing so, because it was inadmissible – where notwithstanding its reception into evidence, had the learned trial judge concluded that it was inadmissible then that could have led to his Honour’s directing the jury that they must ignore that evidence completely – where the potential prejudice created by leaving that inadmissible evidence to the jury is obvious – where it is difficult to conclude that it did not influence the jury’s consideration in any way. Appeal against conviction allowed. Convictions are set aside. The sentences imposed on 19 October 2017 are set aside. A retrial is ordered.

R v Hannan; Ex parte Attorney-General (Qld) [2018] QCA 201 (17/303) Fraser and Morrison and Philippides JJA 31 August 2018

Sentence Appeal by Attorney-General (Qld) – where the respondent pleaded guilty to the offence of money laundering – where she was sentenced to three years’ imprisonment, wholly suspended with an operational period of three years – where a total of 12 days of presentence custody were declared under that sentence – where the Attorney-General submitted that the penalty imposed on the respondent did not reflect the seriousness of the offence and the applicable maximum penalty – where it was further submitted that the learned sentencing judge was overwhelmed by consideration of the impact on the children, at the expense of recognising the very serious offence involved in laundering about $650,000, where that was done with the full knowledge that the money constituted the proceeds of criminal activity – where in total, in a period of approximately two years and four and a half months, the respondent was involved in the creation of 45 false invoices, totalling $649,189 – where it was submitted that actual incarceration of a period between six and 12 months was warranted – where the respondent submitted that the sentence was not unreasonable or plainly unjust as it was open to the learned sentencing judge to take into account the effect on the children of their mother’s imprisonment – where it was submitted the children would be deprived of parental care and likely to suffer severe hardship – where this Court has consistently held, including in R v Chong; Ex parte Attorney-General (Qld) (2008) 181 A Crim R 200, that hardship to family members cannot overwhelm considerations such as the need for denunciation, deterrence and punishment – where in other words it ought not be allowed to overwhelm the punishment which would otherwise be appropriate – where unlike Chong, this is not a case where the children will be left without proper care – where the evidence established that at the time of the sentencing both the respondent’s mother and her mother and father-in-law provided practical day to day assistance in relation to child care – where it is therefore right to conclude that whilst there will be some impact on the children in terms of separation from their parents for a period of time, they will not be left without appropriate care, and not left without care by a family member – where properly characterised, this is a case where separation by reason of the imposition of a custodial sentence on the respondent will inevitably affect the children, but not in the exceptional way which is the hallmark of the principles in Chong – when that impact is balanced against the seriousness with which the legislature views that offending, and the need in drug trafficking and money laundering cases for denunciation and deterrence, it becomes apparent that the learned sentencing judge did permit the hardship to the children to overwhelm the punishment which would otherwise have been appropriate. Appeal allowed. Set aside so much of the orders made on 27 November 2017 as wholly suspended the period of imprisonment for an operational period of three years. Order that the term of imprisonment imposed be suspended after serving five months. Otherwise affirm the orders made on 27 November 2017. Order that a Warrant issue for the arrest of the respondent, to lie in the Registry for seven days.




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