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

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

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

CIVIL APPEALS

  • Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 101
  • Cassatone Nominees P/L v Queenslandwide House & Building Reports P/L & Ors [2008] QCA 102
  • Forsyth & Anor (as trustees for the C&S Forsyth Superannuation Fund) v Gibbs [2008] QCA 103
  • Wenn v Café San Paul P/L [2008] QCA 108 Muir JA White J Lyons J 2/05/2008
  • Attorney-General of Queensland v Yeo [2008] QCA 115
  • Legal Services Commissioner v Dempsey [2008] QCA 122
  • Campbell v Turner & Ors [2008] QCA 126
  • Phillips & Anor v Scotdale P/L [2008] QCA 127
  • Wren v Gaulai [2008] QCA 148
  • Res 1 v Medical Board of Queensland [2008] QCA 152
  • Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157
  • Hills v Chalk & Ors (as executors of the estate of Chalk (deceased)) [2008] QCA 159

CRIMINAL APPEALS

  • R v HAN [2008] QCA 106
  • R v WAB [2008] QCA 107
  • R v Tapiolas [2008] QCA 118
  • R v Ly; R v Kyprianou [2008] QCA 149
  • R v WAC [2008] QCA 151
  • R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154
  • Rowe v Kemper [2008] QCA 175

law.jpgCIVIL APPEALS

Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 101 Holmes JA Fraser JA Chesterman J 2/05/2008

Application for Leave Integrated Planning Act – Environment and Planning – Courts and Tribunals with Environment Jurisdiction – Queensland – Planning and Environment Court and its Predecessors – Powers on Appeal – where judge in Planning and Environment Court allowed appeal in relation to the refusal of a development application by Mackay City Council – where appeal lodged with Court of Appeal against decision of Planning and Environment Court – where judge in Planning and Environment Court then made further orders with respect to hearing of questions concerning residential amenity issues – where judge proposed to rule on amenity question with the intention of excluding those matters from consideration by the Court of Appeal – whether in embarking on fresh hearing judge exceeded jurisdiction – whether judge failed to take into account relevant considerations – HELD: Application for leave to appeal granted; Appeal allowed; Orders of 4 February 2008 be set aside, and an order be substituted that any further hearing of the issues in dispute be adjourned pending determination of Appeal No 11897/07; First respondent to pay the costs of the applicants/appellants and the second respondent.

insurance.jpgCassatone Nominees P/L v Queenslandwide House & Building Reports P/L & Ors [2008] QCA 102 McMurdo P Fraser JA Fryberg J 2/05/2008

General Civil Appeal – Procedure – Supreme Court Procedure – Queensland – Procedure under Rules of Court – Summary Judgment – where the appellant claimed that a liability owed to it by the first respondent was covered by an insurance policy issued to the first respondent by the second and third respondents – where the second and third respondents alleged that they had repudiated the contract of insurance for non-disclosure by the first respondent – where the second and third respondents obtained summary judgment against the appellant – where r 293(2)(a) of the Uniform Civil Procedure Rules 1999 (Qld) required that no real prospect of succeeding be demonstrated before summary judgment be entered – whether a repudiation of the contract of insurance by the second and third respondents entitled the second and third respondents to summary judgment – Appeal and New Trial – Appeal – Practice and Procedure – Queensland – When Appeal Lies – By Leave of Court – Costs Orders - where the trial judge made an order as to costs – where s 253 of the Supreme Court Act 1995 (Qld) provided that no order as to costs only, which by law are left to the discretion of the judge, shall be subject to any appeal except by leave of the judge who made the order – where no such leave was obtained – whether the appeal was competent – HELD: That the appeal from the order of the learned primary judge made on 12 June 2007 by which the appellant's action was dismissed with costs to be assessed be allowed; Set aside the order of 12 June 2007 and in lieu thereof order that the second and third respondents' application for summary judgment be dismissed with costs to be assessed on the standard basis; That the appeal from the order that the appellant pay the second and third respondents’ costs of the successful application to set aside the default judgment be dismissed; That the second and third respondents pay the appellant’s costs of the appeal to be assessed on the standard basis.

Forsyth & Anor (as trustees for the C&S Forsyth Superannuation Fund) v Gibbs [2008] QCA 103 McMurdo P Keane JA Fraser JA 2/05/2008

General Civil Appeal – Procedure – Supreme Court Procedure – Queensland – Procedure under Rules of Court – Summary Judgment – where the appellants brought an action against the respondent for the recovery of a debt – where the respondent does not dispute the evidence of the debt adduced by the appellants – where the respondent sought to resist the appellants' application for summary judgment on the grounds of his entitlement to an equitable set-off against the debt – whether the claimed equitable set-off is a sufficient basis upon which an application for summary judgment can be refused – HELD: Appeal allowed; Orders of the Supreme Court set aside; Judgment for the appellants in the sum of $340,591.33 together with interest at the rate of 16 per cent from 20 September 2007; Respondent to pay the appellants' costs of the appeal and of the action to be assessed on the standard basis.

contract.jpgWenn v Café San Paul P/L [2008] QCA 108 Muir JA White J Lyons J 2/05/2008

Application for Leave s 118 DCA (Civil) – Appeal and New Trial – Appeal – Practice and Procedure – Queensland – When Appeal Lies – By Leave of Court – Generally – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the work was not completed – where the applicant seeks leave to appeal against the decision of the District Court under s 118(3) District Court of Queensland Act 1967 (Qld) – whether there was an error of law in the decision of the Commercial and Consumer Tribunal – whether the application for leave to appeal should be dismissed – where s 100 Commercial and Consumer Tribunal Act 2003 (Qld) requires an appeal of a decision of the Tribunal to be filed within 28 days after the decision takes effect – where the Tribunal’s decision took effect on 30 August 2006 – where the respondent sought leave to appeal on 10 August 2007 – where there is no power in the District Court of Queensland Act 1967 (Qld) or the Uniform Civil Procedure Rules 1999 (Qld) to extend the time limit – whether the primary judge’s implicit decision to give leave to appeal resulted in an error of law which ought to be corrected – Contracts – Building, Engineering and Related Contracts – Performance of Work – Remedies for Breach of Contract – Damages – Measure of – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where the contract sum was $6,600 – where the work was not completed – where the respondent engaged another builder to complete the contract for $13,970 – whether the contracts provided for the supply of labour as well as materials – whether the right test was applied for the assessment of damages – Other Matters – where a minor works contract was entered into between the applicant and the respondent for a shop refitting project – where three days after work commenced the applicant told the respondent he would not complete the work – where the applicant removed all his materials from the site – whether there was sufficiently clear acceptance of the applicant’s repudiation by the respondent by engaging another contractor to complete the work – HELD: Leave to appeal the order of the District Court made on 28 September 2007 be allowed; Such order be varied by substituting for “$9,587” in paragraph 3 thereof with “$4,370”; The following be substituted for paragraph 4 of such order: “The applicant Gerald James Wenn pay the respondent Café San Paul Pty Ltd’s costs of and incidental to the application for leave to appeal to be assessed on the standard basis on the scale of the District Court applicable to a claim of less than $50,000.”; No order as to costs of the appeal.

Attorney-General of Queensland v Yeo [2008] QCA 115 Keane JA Holmes JA White J 16/05/2008

General Civil Appeal – Appeal and New Trial – Appeal – General Principles – Interference with Discretion of Court Below – In General – Failure to Exercise Discretion – where the respondent was the subject of a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the continuing detention order was reviewed in accordance with s 27 of the Act – where the primary judge on review rescinded the continuing detention order and made orders for the supervised release of the respondent – whether the conclusion that the risk posed by the respondent to the community could be adequately met by the supervised release of the respondent on the conditions imposed was one that was reasonably open to the primary judge on the evidence – Right of Appeal – When Appeal Lies – Error of Law – Particular Cases Involving Error of Law – Failure to Give Reasons for Decision – Adequacy of Reasons – where the primary judge was obliged under the legislation to give detailed reasons for the making of a supervision order in preference to a continuing detention order – whether the reasons given by the primary judge were adequate – HELD: Appeal dismissed.

Legal Services Commissioner v Dempsey [2008] QCA 122 McMurdo P Keane JA White J 23/05/2008

General Civil Appeal – Professions and Trades – Lawyers - Remuneration – where the appellant arranged for loans to be made to his clients from a litigation lender for the purpose of covering the costs associated with prosecuting their claims – where the loan moneys from the litigation lender were paid into the appellant's trust account and then drawn upon as required to meet the costs incurred – whether the loan moneys amounted to "disbursements" which "the client must pay, or reimburse, to the practitioner" within the meaning of s 48IC of the Queensland Law Society Act 1952 (Qld) - where under the retainer between the appellant and his clients it was agreed that the amount of GST payable upon the appellant's fees would be added to the clients' accounts – whether the appellant's right under the retainer to recover from the clients his GST liability is precluded by the operation of s 48IB and s 48IC of the Queensland Law Society Act 1952 (Qld) – HELD: Appeal dismissed with costs.

justice-scales-sepia.jpgCampbell v Turner & Ors [2008] QCA 126 de Jersey CJ Fraser JA Douglas J 30/05/2008

General Civil Appeal – Procedure – Supreme Court Procedure – Queensland – Procedure Under Rules of Court – Pleading – Generally – where the plaintiff asserted an entitlement to an equitable interest on the basis of an alleged expectation created by the defendant – where the expectation was based on a deed as well as conduct and statements made before the deed was executed – where the deed was found to be void by operation of s 8 of the Land Sales Act 1984 (Qld) – where the trial judge accepted the arguments advanced on behalf of the defendants that contended that the deed could not be a source of any expectation giving rise to any equity in the plaintiffs – where the trial judge found that the plaintiffs did not plead a case which excluded reliance upon the deed – whether the plaintiff’s pleadings pleaded a case which excluded reliance upon the deed – whether the plaintiff’s case necessarily relied upon the Land Sales Act 1984 (Qld) as conferring any status upon them – Estoppel – Estoppel in Pais – Matters Against Which Estoppel Does Not Prevail – Statutory Provisions – where s 8 of the Land Sales Act 1984 (Qld) rendered invalid a deed assigning an interest in land – where the plaintiffs attempted to use the deed as a source of an equitable interest in the land – where the defendants argued that the plaintiffs were precluded from raising the estoppel to overcome the effect of the statute – whether the nature of the provision was such as to preclude the existence of the equity for which the plaintiffs contended – Appeal and New Trial – Appeal – General Principles – Points and Objections Not Taken Below – When Not Allowed to be Raised on Appeal – Questions Not Raised on Pleadings or in Argument – Generally – where the plaintiffs mounted an argument in the appeal that the defendant’s failure to inform the plaintiffs that a subdivision could not take place was productive of substantial loss – where the defendants objected on the basis that that case was not run at trial – whether the plaintiffs were allowed to run that argument on appeal – Interest – Where Equitable Relief or Fiduciary Relationship – where the plaintiff was granted equitable relief – where the relief was for breach of trust – whether compound interest should be granted in the circumstances – HELD: That the appeal be allowed and that the orders made by the trial judge be set aside; In lieu thereof order that: a) The first defendants pay the plaintiffs $145,759.81; b) The fourth defendant pay the plaintiffs $111,743.10; c) The claim against the second and third defendants be dismissed; That the parties make written submissions as to costs within ten days and in accordance with paragraph 37A of Practice Direction No. 1 of 2005.

Phillips & Anor v Scotdale P/L [2008] QCA 127 de Jersey CJ Keane JA White J 30/05/2008

General Civil Appeal – Conveyancing – Relationship of Vendor and Purchaser – Breach of Contract – Deposit – What Constitutes a Deposit – where in accordance with a special condition of the contract, the deposit holder was to pay the deposit to the vendor immediately and without any breach of contract by the purchaser – whether the payment to the deposit holder was a "deposit" within the meaning of the term as defined under s 71 of the Property Law Act 1974 (Qld) – Statutes – Acts of Parliament – Interpretation – Rules of Construction – Presumptions as to Legislative Intention – Not to Invade Personal Common Law Rights – where the parties agree under a special condition to the contract to authorise the deposit holder to pay out the deposit money to the vendor immediately and without any breach of contract by the purchaser – whether s 384 and s 385 of the Property Agents and Motor Dealers Act 2000 (Qld) operate to invalidate this clause of the contract – HELD: Appeal dismissed; Appellant to pay the respondents' costs of and incidental to the appeal to be assessed on the standard basis.

Wren v Gaulai [2008] QCA 148 Keane JA Fraser JA White J 6/06/2008

General Civil Appeal – Criminal Law – Jurisdiction, Practice and Procedure – Judgment and Punishment – Orders for Compensation, Reparation, Restitution, Forfeiture and other Matters Relating to Disposal of Property – Compensation – Queensland – where the respondent was convicted of doing grievous bodily harm to the appellant – where the appellant was awarded $54,750 in compensation – where the appellant appealed on the basis that the award was manifestly inadequate because of the omission from the award of amounts for various injuries described in the relevant compensation table – where the trial judge had grouped some injuries with other injuries notwithstanding that some of the injuries fell within other descriptions in the compensation table – where the respondent argued that the trial judge was merely exercising his discretion – whether the trial judge erred in grouping together the injuries – whether the trial judge had correctly performed the task required by the Act – examination of the methodology to be applied in making assessments of applicable items in the compensation table when the assessment might be duplicitous – HELD: 1.Appeal allowed; 2. Set aside the order made in the District Court on 10 October 2007, and in lieu thereof order that the respondent Wilson Conwell Gaulai pay the applicant Andrew John Wren the sum of $61,500 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1984 (Qld); 3. The respondent pay the appellant's costs of and incidental to the appeal; 4. Grant the respondent an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld).

Res 1 v Medical Board of Queensland [2008] QCA 152 McMurdo P Muir JA Douglas J 13/06/2008

General Civil Appeal – Appeal and New Trial – Appeal – General Principles – Right of Appeal – When Appeal Lies – Error of Law – Particular Cases Involving Error of Law – Failure to Give Reasons for Decision – Adequacy of Reasons – where a complaint was made against the appellant in relation to the appellant’s conduct in advising and treating a patient for a mid-trimester termination – where the Health Practitioners Tribunal determined that the appellant had engaged in unsatisfactory professional conduct – where the Tribunal ordered that the appellant’s registration be suspended for four months and conditions imposed as to the manner in which the appellant could conduct her practice pursuant to s 241(2)(h) Health Practitioners (Professional Standards) Act 1999 (Qld) – where there were ten particulars of unsatisfactory professional conduct – where the Tribunal had a duty to give reasons under s 245 Health Practitioners (Professional Standards) Act 1999 (Qld) and the common law – where the Tribunal did not indicate whether it accepted or rejected the appellant’s evidence – where the Tribunal failed to explain why it preferred the respondent’s expert evidence over the appellant’s expert evidence – where the Tribunal failed to identify the evidentiary basis for the conclusion that every particular of sub-standard professional conduct was satisfied – whether the Tribunal failed to give adequate reasons for the decision constituting a denial of natural justice – HELD: The decision of the Health Practitioners Tribunal on 11 December 2007 be set aside; The matter be remitted to a differently constituted tribunal for determination according to law; The respondent pay the appellant’s costs of the appeal; The costs of and incidental to the hearing at first instance be reserved for determination by the Tribunal if not agreed between the parties.

Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157 Holmes JA Muir JA White J 20/06/2008

Application for Leave Integrated Planning Act – Environment and Planning – Environmental Planning – Planning Schemes and Instruments – Queensland Generally – where the judge in the Planning and Environment court allowed an appeal against Mackay City Council’s decision to refuse an application by the first respondent for a development permit – where there were substantial conflicts between the application and planning Scheme provisions – where the primary judge determined there were sufficient planning grounds to justify approval despite any conflicts – where the primary judge failed to take into account residential amenity in evaluating sufficiency of planning grounds – whether the primary judge departed from the principle that a Court ought not replace the carefully constructed schemes of a planning authority with its preferred planning strategies – whether the primary judge’s reasons in allowing the appeal constitute an error of law – HELD: Allow application for leave to appeal; Allow the appeal; Set aside the orders made below and order that Appeal No. BD 3575 of 2006 to the Planning and Environment Court be dismissed; First respondent to each appeal pay the other parties’ costs of the appeal.

Hills v Chalk & Ors (as executors of the estate of Chalk (deceased)) [2008] QCA 159 Keane JA Muir JA Fraser JA 20/06/2008

General Civil Appeal – Appeal and New Trial – Appeal – General Principles – When Appeal Lies – For Bias in Judicial Proceedings – where at the commencement of proceedings the learned primary judge expressed some views on the merits based upon the written submissions of the parties – where the learned primary judge intervened on numerous occasions in the cross-examination of a key witness – whether the conduct of the learned primary judge was such that a fair-minded person might have a reasonable suspicion of bias on the part of the primary judge – Succession – Family Provision and Maintenance – Practice – Time for Making Application – General Matters – Queensland – where the application by the respondent under Pt IV of the Succession Act 1981 (Qld) was instituted outside of the statutory time limit for the bringing of such proceedings – whether the circumstances are such that the Court should exercise its discretion to extend the time in which such an application can be made – Failure by Testator to Make Sufficient Provision for Applicant – Whether Applicant Left with Insufficient Provision – General – where the grant of provision to the respondent by the testator reflected the terms of a pre-nuptial agreement between both parties – whether the terms of the pre-nuptial agreement are relevant to the question of sufficient provision by the testator to the respondent – whether the testator had made insufficient provision to the respondent thereby justifying the grant of the application for further maintenance – HELD: Appeal allowed; Order of the Supreme Court set aside and in lieu thereof it is ordered that application for provision out of the estate of Marie Sylvia Chalk be dismissed, The respondent to pay the appellants' costs both of this appeal and of the application below to be assessed on the standard basis.
 

fingerprint.jpgCRIMINAL APPEALS

R v HAN [2008] QCA 106 Muir JA White J Lyons J 2/05/2008

Sentence Application – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal Against Sentence – Appeal by Convicted Persons – Applications to Reduce Sentence – When Granted – Particular Offences – Offences – Offences Against the Person – Sexual Offences – applicant pleaded guilty to one count of maintaining a sexual relationship with his daughter with circumstances of aggravation – head sentence of seven years imprisonment – parole eligibility date not fixed – the complainant was between 13 and 17 when the offences occurred – the applicant procured the complainant to perform fellatio upon him ‘daily’ for a period of three years – where relevant mitigating factors – sentence was manifestly excessive – HELD: Application for leave to appeal against sentence granted; Set aside the sentences imposed and in lieu thereof order that a period of imprisonment of six years be imposed for count 1; a period of imprisonment of three years be imposed for count 3; and a period of imprisonment of two years be imposed for each of counts 2, 4, 5, and 6; All sentences to be served concurrently; The applicant be eligible for parole at 10 March 2010.

R v WAB [2008] QCA 107 Keane JA Fraser JA Lyons J 2/05/2008

Appeal against Conviction – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Particular Grounds – Misdirection and Non-Direction – General Matters – Presentation of Defence Case and Crown Case and Review of Evidence – where the trial judge allowed the admission of unparticularised evidence of uncharged acts of unlawful sexual activity by the appellant against the complainant – where the evidence was uncorroborated – where the trial judge directed the jury as to the dangers of such evidence and the need to scrutinise it with real care – whether such evidence was properly put to the jury as evidence that may be relied upon in establishing a contravention of s 229B(1) of the Criminal Code Act 1899 (Qld) – Unreasonable or Insupportable Verdict – Where Appeal Dismissed – where appellant convicted on one charge of maintaining a sexual relationship with a child under 16 years and acquitted on two counts of the rape of the same child – whether the conviction on the maintaining count is inconsistent and irreconcilable with the acquittals on the rape counts – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt – HELD: Appeal Dismissed.

legal_books_on_shelf.jpgR v Tapiolas [2008] QCA 118 Holmes JA Muir JA Chesterman J 16/05/2008

Sentence Application – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal against Sentence – Appeal by Convicted Person – Applications to Reduce Sentence – When Granted - Generally – where the applicant was convicted in the District Court for one count of grievous bodily harm and sentenced to imprisonment for 18 months – where applicant seeks leave to appeal to this Court on grounds that the sentence is manifestly excessive – where the applicant contends the learned sentencing judge made certain errors in fact finds on uncontradicted evidence – whether application should be allowed - Allow the application for leave to appeal; Allow the appeal and set aside the sentence imposed below; Substitute a sentence of 18 months imprisonment with a parole release date fixed at 16 May 2008; Declare that the applicant has served four days imprisonment under the sentence from 11 December 2007 to 14 December 2007.

R v Ly; R v Kyprianou [2008] QCA 149 McMurdo P Fraser JA Fryberg J 13/06/2008

Sentence Applications – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal against Sentence – Appeal by Convicted Persons – Applications to Reduce Sentence – applicants were involved, with others, in a sophisticated heroin trafficking operation – both applicants pleaded guilty to trafficking heroin over 11 month periods – Ly was sentenced to 12 years imprisonment and declared to be convicted of a serious violent offence – Kyprianou was sentenced to 10 years and 6 months imprisonment and declared to be convicted of a serious violent offence – neither applicant was a heroin addict, and each participated in the trafficking for profit – Kyprianou had a slightly lower level of involvement in the operation than Ly – references and a psychological report tendered on Kyprianou's behalf showed good prospects of rehabilitation – whether the sentences were manifestly excessive – Grounds for Interference – General Principles – Kyprianou settled an action against him by the Commonwealth DPP under the Proceeds of Crime Act 2002 (Cth), forfeiting property the proceeds of the trafficking to the Commonwealth – whether co-operation with Commonwealth authorities is a mitigating factor when being sentenced for a Queensland offence – whether Kyprianou had co-operated with the Commonwealth authorities – whether the sentencing discretion miscarried - Kyprianou returned to Australia from Cyprus knowing that he would be arrested upon his arrival – whether his voluntary return put Kyprianou in a special category of case requiring extraordinary leniency – whether the sentencing discretion miscarried – HELD: Applications for leave to appeal refused.

R v WAC [2008] QCA 151 Holmes JA Atkinson J Mullins J 13/06/2008

Appeal against Conviction – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Particular Grounds – Unreasonable or Insupportable Verdict – Where Appeal Dismissed – where jury found appellant guilty of one count of rape and not guilty on a second count – where complainant’s evidence on the first count was tangentially substantiated by other witnesses – where there were weaknesses in complainant’s evidence on second count – whether guilty verdict on first count was unreasonable –whether verdicts were inconsistent – Miscarriage of Justice – Particular Circumstances Involving Miscarriage – Misdirection and Non-Direction – where trial amounted to a “word against word” case – where weaknesses in complainant’s evidence on second count of rape – where trial judge’s direction over-stated tangentially corroborating evidence in relation to the first count of rape – where Markuleski order was not sought at trial – whether trial judge should have given a Markuleski direction – whether a miscarriage of justice occurred – HELD: (by majority) Appeal dismissed.

R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154 de Jersey CJ McMurdo P Keane JA 13/06/2008

Appeals against Sentence by A-G (Qld) – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal Against Sentence – Appeal by Attorney General or other Crown Law Officer – six respondents (AAC, PAG, KZ, BBL, WZ and YC) each pleaded guilty to one count of rape of a 10 year old girl – three respondents (WY, KU and KY) each pleaded guilty to two counts of rape of the same girl – sentencing judge referred to offence as 'hav[ing] sex with young girls' rather than as 'rape' in sentencing remarks on 24 October 2007 – sentencing judge stated that all the respondents would be treated the same 'in terms of the behaviour' – adults and juveniles are to be sentenced under different statutory regimes under the Penalties and Sentences Act and the Juvenile Justice Act – reasons for the sentence imposed are required by s 10 of the Penalties and Sentences Act and s 158 of the Juvenile Justice Act – whether sentencing judge gave adequate reasons to support the sentences imposed – whether the sentencing judge sentenced on an incorrect basis – whether the sentencing process miscarried – whether the Court of Appeal must re-sentence the respondents – Applications to Increase Sentence – the adult respondents, WZ, KU and WY, were sentenced to fully suspended terms of six months imprisonment with an operational period of 12 months – the juvenile respondents, YC, KY, PAG, AAC, KZ and BBL, were sentenced to 12 months probation with no conviction recorded – sexual offences by adults on children warrant custodial sentences except in exceptional circumstances – sexual offences by juveniles on children usually warrant a term of detention – whether sentences were manifestly inadequate – Jurisdiction, Practice and Procedure – Judgment and Punishment – Sentence – Miscellaneous Matters – Duty of Crown Prosecutor – officer of the Office of the Director of Public Prosecutions (Queensland) submitted that non-custodial sentences were appropriate for all respondents – Attorney-General on appeal submitted that orders for imprisonment for the adults, and detention for the juveniles, were appropriate for all respondents – considerations of a type of 'double jeopardy', given the concessions of the prosecution at sentence – whether prosecution submissions led sentencing judge into error – whether Attorney-General may resile from the submissions of the prosecution at sentence – whether, if satisfied that the sentencing process miscarried, the appeal should be dismissed because of the conduct of the prosecution – Factors to be Taken into Account – Aboriginal Offenders – all respondents and victim of Aboriginal descent and living in remote community at Aurukun – relevance of community dysfunction – rape and sexual relations with children not in accordance with Aboriginal customary law and not condoned by Aurukun community – whether only personal disadvantages suffered by each particular respondent should be taken into account – personal disadvantages must be considered with the seriousness of the offence and other relevant factors – whether the dysfunctionality of the community from which the offender came on its own warrants leniency – HELD: (Briefly) R v WZ - Appeal allowed; Set aside the sentence imposed in the District Court on 24 October 2007; Order that the respondent be imprisoned for six years and fix a parole eligibility date of 13 June 2010; There will be a declaration that 55 days pre-sentence custody (from 19 September to 5 November 2006 and 16 November to 22 November 2006) be treated as time served under this sentence; Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days. R v KU & WY – Same as WZ except for: On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010. R v KZ – Same as WZ except for: Order that a conviction be recorded; Order that the respondent be sentenced to detention for three years to be released after serving 50 per cent of that term; There will be a declaration that 41 days pre-sentence detention (from 1 to 3 July 2006, 19 to 20 September 2006, 5 October to 10 November 2006, 7 to 8 December 2006 and 19 to 20 March 2007) be treated as time served under this sentence; Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days; Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).R v AAC – Same as WZ except for: Order that a conviction be recorded; Order that the respondent be sentenced to two years detention to be released after serving 50 per cent of that term; There will be a declaration that one day pre-sentence detention (from 8 to 9 October 2007) be treated as time served under this sentence; Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days; Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld). R v YC, PAG & BBL - Appeal allowed; Set aside the sentence imposed in the District Court on 24 October 2007; Order that a conviction be recorded; Order that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program; Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance. R v KY – Same as YC except for: Order on each count that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program.

Rowe v Kemper [2008] QCA 175 McMurdo P Holmes JA Mackenzie AJA 27/06/2008

Application for leave s 118 DCA (Criminal) – Criminal Law – Particular Offences – Offences Against Peace and Public Order – Assaulting, Resisting, Hindering or Obstructing Police Officer – Officer Acting in Execution of Duty – Acting Without Warrant – where applicant was escorted out of a public toilet by police after failing to leave at the request of a cleaner – where applicant was directed to leave the Queen Street Mall for eight hours, and was subsequently arrested and convicted on charges of contravening that direction and obstructing the arresting officer in the course of his duties – whether the arresting officer had a reasonable suspicion in relation to the applicant for the purposes of giving a direction – whether the giving of the direction was reasonable and lawful in the circumstances – where arresting officer did not warn applicant that non-compliance with a direction was an offence in the absence of a reasonable excuse – where no evidence that it was impracticable to give such a warning – whether applicant had sufficient opportunity to comply with the direction – whether direction was contravened – whether arresting officer had an actual and reasonable suspicion that an offence had been committed for the purposes of the obstruction charge – HELD: Grant leave to appeal; Allow the appeal; Set aside order of the District Court dismissing appeal against convictions; Quash the convictions for contravening a direction and obstruction and enter verdicts of acquittal.


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