Hearsay ... the Journal of the Bar Association of Queensland
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Issue 30: October 2008
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

  • Nominal Defendant v Duntroon Holdings P/L [2008] QCA 183
  • MBA v AAE [2008] QCA 187
  • Manly v The Public Trustee of Qld & Anor [2008] QCA 198
  • Pepper v A-G (Qld) [No 2] [2008] QCA 207
  • Bezzina Developers P/L v Deemah Stone (Qld) P/L & Ors [2008] QCA 213
  • Holdway v Arcuri Lawyers (A Firm) [2008] QCA 218
  • Bourk v Power Serve P/L & Anor [2008] QCA 225
  • Attorney-General for the State of Queensland v Francis [2008] QCA 243
  • CAG v The Public Trustee of Qld (as personal representative of the estate of JM, dec'd) [2008] QCA 252

CRIMINAL APPEALS

  • R v Wallader [2008] QCA 179
  • R v Jones [2008] QCA 181
  • R v Kolodziej [2008] QCA 184
  • R v RAC [2008] QCA 185
  • R v CAF [2008] QCA 195
  • R v Salsone; ex parte A-G (Qld) [2008] QCA 220
  • R v TR & FV; ex parte A-G (Qld) [2008] QCA 221
  • R v Ferguson; ex parte A-G (Qld) [2008] QCA 227
  • R v Blanch [2008] QCA 253

CIVIL APPEALS 

carcrash1529636.jpgNominal Defendant v Duntroon Holdings P/L [2008] QCA 183 Keane JA Holmes JA Philippides J 11/07/2008

General Civil Appeal – Insurance – Third-party Liability Insurance – Motor Vehicles – Compulsory Insurance Legislation – Uninsured Vehicles – Queensland – where an employee of the appellant was injured in an accident involving a mobile crane owned by the appellant – where the crane was not registered – where the respondent settled the action brought by the employee – whether the injury of the employee was one to which the statutory compensation scheme applies – whether the respondent was the proper defendant in the action brought by the employee – whether the appellant is liable to reimburse the respondent in respect of expenses incurred by it in settling the action – HELD: Appeal dismissed; Appellant to pay the respondent's costs of the appeal to be assessed on the standard basis.

MBA v AAE [2008] QCA 187 de Jersey CJ Muir JA Fraser JA 16/07/2008 (delivered ex tempore)

Application for Leave s 118 DCA (Civil) – 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 District Court Judge awarded the present respondent $3,375 compensation under the Criminal Offences Victims Act 1995 (Qld), a reduction by one-half of the primary amount that was $6,750 – where the applicant seeks leave to appeal against the decision of the District Court, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contends that the primary amount should be further reduced – where the applicant additionally contends that the respondent’s conduct precluded any award, because the respondent’s injury was caused by an offence to which the respondent was a party – whether the applicant should be granted leave to appeal – HELD: Application refused with costs.

Manly v The Public Trustee of Qld & Anor [2008] QCA 198 McMurdo P Mackenzie AJA Daubney J 25/07/2008

General Civil Appeal – Succession – Family Provision and Maintenance – Failure by Testator to Make Sufficient Provision for Applicant – Whether Applicant Left with Insufficient Provision – claims by spouse – where the appellant’s late husband made a will dividing his residuary estate evenly between the appellant and his three sons – where the appellant applied under s 41 of the Succession Act 1981 (Qld), contending that the deceased did not make adequate provision for her maintenance in his will – where the trial judge refused her application – where the appellant challenged the weight ascribed by the trial judge to various factors including the relationship between the appellant and the deceased, the relationship between the deceased and his sons, the care provided by the appellant to the deceased and an informal prenuptial agreement between the appellant and the deceased – whether the trial judge erred in determining that adequate provision was made for the maintenance and support of the appellant – Appeal dismissed with costs.

Pepper v A-G (Qld) [No 2] [2008] QCA 207 de Jersey CJ, Muir JA and Fraser JA 29/07/2008

General Civil Appeal – Statutes – Acts of Parliament – Interpreation – Rules of Construction – Generally – where the respondent was convicted in June 2000 of one count of maintaining a relationship of a sexual nature with a child under 12 in his care, one count of rape and three counts of indecent treatment of a child under the age of 12 in his care – where the respondent in October 2005 petitioned to the Governor for a pardon – where the appellant decided not to refer the respondent’s case to the Court of Appeal for consideration pursuant to s 672A Criminal Code 1899 (Qld) – where the respondent made an application for an order pursuant to s 39 Judicial Review Act 1991 (Qld) that the appellant give a statement of reasons – where the primary judge ordered that the appellant give the respondent a statement of reasons in relation to the decision not to refer the respondent’s case to the Court of Appeal – where Item 1 of Sch 2 Judicial Review Act 1991 (Qld) provides that reasons need not be given in relation to “decisions relating to the administration of criminal justice, and in particular–” – where the primary judge applied the ejusdem generis rule of statutory construction to come to the conclusion that the class of matters coming within Item 1 of Sch 2 was confined to “decisions relating to the investigation and trial of criminal offences” – whether the general introductory words of Item 1 of Sch 2 were restricted by the particular matters outlined in the item’s sub-paragraphs – whether a referral under s 672A can be categorised as a decision relating to the “administration of criminal justice”, HELD: Appeal allowed, Orders made by the primary judge on 12 February 2008 be set aside, Respondent pay the appellant’s costs of and incidental to this appeal and of the hearing at first instance on 12 February 2008.

Bezzina Developers P/L v Deemah Stone (Qld) P/L & Ors [2008] QCA 213 McMurdo P Keane JA Fraser JA 1/08/2008

Aconstruction261263.jpgppeal from the Supreme Court – General Civil Appeal – matter involving progress payment had initially been adjudicated under the Building and Construction Industry Payments Act 2004 (Qld) – both parties had been involved in an earlier adjudication decision – neither party advised the second adjudicator of the first adjudication decision – primary judge had set the decision of the second adjudicator aside under the Judicial Review Act 1991 (Qld) – On Appeal – the better view of s 27(2) BCIPA is that it operates on the premise that one of the parties will have informed the adjudicator of any relevant, previous adjudication decision – primary judge erred by concluding that the second adjudicator erred in law in failing to take into account the first adjudication decision – Costs – Appeal record occupied 1,660 pages, of which only a very small fraction were referred to the Court or otherwise relevant – appellant through its counsel appropriately acknowledged that the responsibility for the state of the record lay with it – HELD: Appeal allowed, decision set aside, application for an order of review dismissed with costs, respondent to pay the costs of the appeal save for the costs of the appeal record.

Holdway v Arcuri Lawyers (A Firm) [2008] QCA 218 McMurdo P Keane JA Mackenzie AJA 1/08/2008

Appeal from the Supreme Court – General Civil Appeal – Lawyers – Negligence – where the appellant was engaged on 1 August 2002 by the respondent to act in a claim under Pt 4 of the Succession Act 1981 (Qld) – appellant did not serve the application on the executor of the deceased or inform him of the pending application before the executor transferred to himself the principal assets (land) of the estate of the deceased – deed of compromise signed by the respondent and the executor on 21 November 2003 – trial judge held the appellant negligent and judgment awarded to the respondent for $233,000 – On Appeal – the trial judge held that the pieces of land which were transferred to the executor had not been distributed to the executor – admissions had been made that the relevant real property transfers had been distributed, however the parties called evidence at trial on this issue without objection – the trial judge treated the admission as decisive – once the evidence at trial was admitted without objection, the admission was relevant but it could no longer be decisive – the trial judge proceeded to determine the issue rather than treating it as foreclosed by the state of the pleadings – terms of the deed of compromise show that the respondent and the executor were explicitly agreeing to extinguish the respondent’s claim against the estate of the deceased in return for the provision of benefits to the respondent appropriate from the estate – HELD: Appeal allowed, decision below set aside, plaintiff’s action dismissed.

Bourk v Power Serve P/L & Anor [2008] QCA 225 Keane JA Muir JA Fraser JA 8/08/2008

Appeal from the Supreme Court – Employment Law – Breach of Statutory Duty – Causation – where s 28(1) Workplace Health and Safety Act 1995 (Qld) imposes an obligation on the employer to ensure the workplace health and safety of its workers – linesman injured in a fall from a power pole when the pole strap attached to his safety harness failed – trial judge found that the first respondent breached its obligations under s 28(1) however breach in itself was insufficient to establish liability as the appellant was still obliged to prove that the breach of the Act caused the appellant’s injury – On Appeal – Court held that the employer’s duty to ensure the employee’s safety is absolute – subject to the operation of s 26, s 27 and s37, if an employee such as the appellant is injured through the failure of a piece of necessary safety provided to him by his employer there is a breach of the obligation imposed by s 28(1) – the employer has failed to ensure the safety of the employee – causation is established – HELD: Appeal allowed, judgment below set aside, judgment for the appellant against the first respondent on the appellant’s claim in the sum of $694,317.05 and costs.

Attorney-General for the State of Queensland v Francis [2008] QCA 243 Muir JA Mackenzie AJA Fryberg J 22/08/2008

Appeal from the Supreme Court – General Civil Appeal – Judge ordered that the appellant be detained under s 21(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – Appellant had been sentenced to imprisonment in 1999 for multiple sexual and other offences – On Appeal – Constitutional challenge by appellant using principle from Kable – temporary duration of detention pending a determination on the merits under s22 or release under s 21(3) pending final decision identifies its character as non-punitive – Legislative framework does not offend the relevant constitutional principles – Challenge to validity of warrant – Warrant was obtained on a complaint that a corrective services officer had a reasonable belief that the appellant had contravened his supervision order by consuming a drug – if the existence of such a suspicion was established to the satisfaction of the Magistrate, the Magistrate was obliged to issue the warrant – HELD: Appeal dismissed with costs.

fight1627642.jpgCAG v The Public Trustee of Qld (as personal representative of the estate of JM, dec'd) [2008] QCA 252 de Jersey CJ Keane JA Fraser JA 29/08/2008

Appeal from the Supreme Court – General Civil Appeal – De Facto Relationships – Adjustment of Property Interests – where the appellant and the deceased were in a de facto relationship – where the relationship ended prior to the death of the deceased – whether the right to apply for an adjustment of property rights under Part 19 of the Property Law Act 1974 (Qld) survives the death of a person against whom the right is asserted so that it may be pursued against the person’s estate – trial judge acceded to the Public Trustee’s application to have the claim by CAG under the Act be struck out – On Appeal – Court held that s 315 does tend to confirm that the right of one party to a de facto relationship to apply for an adjustment of property rights against the other party to such a relationship presupposes that each of these parties is alive – the reference to the right of a de facto partner to apply under s 283 of the Act must be to a living de facto partner – HELD: Appeal dismissed with costs.
 

CRIMINAL APPEALS 

notguilty2667674.jpgR v Wallader [2008] QCA 179 Keane JA Mackenzie AJA Fryberg J 8/07/2008

Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Interference with Discretion or Finding of Judge – Particular Matters – where appellant convicted of nine counts of possession of a counterfeit prescribed security – where trial judge ruled that proof that a document is a counterfeit prescribed security does not require proof of the existence at the relevant time of an actual prescribed security from which the counterfeit security had been created – whether the finding of the trial judge was erroneous – HELD: Appeal allowed; Verdict below set aside and in lieu thereof a verdict of not guilty entered.

R v Jones [2008] QCA 181 McMurdo P Muir JA Mackenzie AJA 10/07/2008 (delivered ex tempore)

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 – applicant sentenced to three years imprisonment with a parole release date fixed after 15 months on a plea of guilty to one count of unlawful wounding – applicant smashed beer glass into face of complainant – applicant's conduct unprovoked and unpremeditated – complainant scarred, but not disfigured – applicant of otherwise good character and remorseful – whether sentence manifestly excessive – HELD: The indictment presented to the Southport District Court be amended by correcting the spelling of the applicant's name to "MATTHEW KENNETH JONES", Application for leave to appeal granted, Appeal allowed, Set aside the sentence imposed at first instance, Instead, a sentence of 18 months imprisonment is substituted and a parole release date is fixed at 10 September 2008.

R v Kolodziej [2008] QCA 184 Muir JA Fryberg J Lyons J 11/07/2008

Sentence Application – Criminal Law – Appeal and New Trial and Inquiry After Conviction – Appeal Against Sentence – Appeal by Convicted Persons – Applications to Reduce Sentence – When Granted – Particular Offences – Other Offences – where applicant pleaded guilty to one count of robbery in company and one count of wilfully and unlawfully damaging a taxi cab – sentenced to two years imprisonment for robbery and 12 months imprisonment for wilful damage – both periods of imprisonment wholly suspended for an operational period of two and a half years – ordered to pay $1000 compensation within three months – persistent course of threatening and intimidating conduct towards the taxi driver – the acts were not pre-meditated – both offenders were inebriated – no actual violence inflicted on the complainant and no weapons used – co-operation with police and full admissions – genuine remorse – both counts involved the ‘same act or omission’ – whether sentencing judge punished twice for same offence – sentence manifestly excessive – HELD: (by majority) - Allow the appeal, Set aside the sentences imposed, Impose a sentence of imprisonment of 18 months fully suspended for an operational period of 18 months in relation to count 1, Convict but not further punish in relation to count 2.

R v RAC [2008] QCA 185 McMurdo P Muir JA Cullinane J 11/07/2008

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 – applicant convicted on plea of guilty to eight counts of rape and two counts of indecent dealing with a circumstance of aggravation – victim was the applicant’s six year old step son – judge sentenced the applicant to 10 years imprisonment on each count and declared the applicant convicted of a serious violent offence – applicant extensively co-operated with the authorities, including admitting to then unknown offences – applicant pleaded guilty to ex officio indictment – whether sentence was manifestly excessive – HELD: Application for leave to appeal granted, Appeal allowed, Sentence imposed at first instance set aside, On each count of rape the applicant is sentenced to eight years imprisonment and declared convicted of a serious violent offence, On each count of indecent dealing with a circumstance of aggravation the applicant is sentenced to five years imprisonment, Pursuant to s 161 of the Penalties and Sentences Act 1992 (Qld), it is declared that 458 days spent in pre-sentence custody between 12 September 2006 and 13 December 2007 be deemed time already served under the sentence.

R v CAF [2008] QCA 195 McMurdo P Muir JA Lyons J 18/07/2008

Sentence Application – Criminal Law – Jurisdiction, Practice and Procedure – Judgment and Punishment – Sentence – Juvenile Offenders – Relevant Principles – applicant pleaded guilty to two counts of assault occasioning bodily harm in company – applicant involved in fracas where two innocent passers-by were set upon by large group of teenagers – applicant held on to fence while he jumped on the head of the complainant, who had been knocked to the ground – applicant served 91 days pre-sentence custody – applicant had begun to rehabilitate before sentence – applicant had educational and employment prospects – applicant ashamed and remorseful – judge sentenced applicant to 15 months detention, to be released after serving 50 per cent of the detention on a supervised release order – convictions were recorded – principles of sentencing juvenile offenders – whether detention imposed was appropriate at all and for the least time justified in the circumstances – whether sentence was manifestly excessive – HELD: Application for leave to appeal granted, Appeal allowed, Sentence imposed at first instance set aside, Instead, on each count order under s 180 Juvenile Justice Act that the applicant be sentenced to 175 days detention and that he be placed on 12 months probation on the usual terms and conditions under s 193 Juvenile Justice Act together with the further conditions that he undergo such counselling or treatment as directed by the chief executive for substance abuse and in particular alcohol abuse, and that under s 193(3) he comply with the probation order outside the State, The 91 days pre-sentence custody from 19 November 2007 to 18 February 2008 is declared as time served under the detention order, The applicant's legal representatives are directed to explain to him the purpose and effect of these orders under s 158 Juvenile Justice Act.

R v Salsone; ex parte A-G (Qld) [2008] QCA 220 McMurdo P Fraser JA Mackenzie AJA 1/08/2008

Appeal from the District Court – Sentence appeal by A-G (Qld) – respondent convicted upon guilty plea of one count of distributing, and one count of possessing, child exploitation material – respondent used peer-to-peer software which allowed others to access child exploitation on his computer – respondent was 21 years old, co-operated with the authorities, pleaded guilty at an early stage and had promising prospects of rehabilitation – judge imposed concurrent sentences of two and three year terms of probation and 200 hours of community service – On Appeal – the legislature plainly intended that, in like circumstances, offences against s 228C Criminal Code 1899 will ordinarily warrant heavier penalties than those against 228D – ordinarily, the need to deter the distribution of child exploitation material would require the recording of a conviction – the offences were so serious and the need for deterrence so great that convictions should have been recorded on each count – a custodial sentence in the range of 12 to 18 months imprisonment was appropriate in respect of Mr Salsone’s offence against s 228C – mitigating factors in his favour warranted either its full suspension or at least after a relatively short period of actual custody – HELD: Appeal allowed, Sentence imposed at first instance set aside, On count 1 substitute a sentence of 15 months imprisonment suspended forthwith with an operational period of two years, On count 2 substitute a sentence of two years probation with conditions, Convictions recorded on each count.

R v TR & FV; ex parte A-G (Qld) [2008] QCA 221 Holmes JA Fraser JA Mackenzie AJA 1/08/2008

Appeal from the District Court – Application to increase sentence – TR was charged with 62 offences and FV with 41 offences, all of which related to their daughter – Counts 1 and 2 charged them individually with maintaining an unlawful relationship of a sexual nature with a girl under 16 – On count 1 TR was sentenced to six years imprisonment and on count 2 FV was sentenced to seven years imprisonment – On Appeal – the most serious aspect of the matter is to be found in the circumstances of the prostitution, in which TR played a more direct role than FV, by being present when acts of prostitution were engaged in and, on occasions, giving directions to the girl who was reluctant to engage in acts with D (a client) – FV did not involve himself in the day to day operation of the prostitution business, but was aware that it involved the girl, and approved of it – cannot establish that the sentence of seven years imprisonment for FV’s offending against s 229B, depraved as it was, is manifestly inadequate for his level of offending against that section – sentence contains an error in principle in the sentencing process because FV received a longer sentence than TR for maintaining when the differential should have been the other way – HELD: In relation to TR, the A-G’s appeal is allowed, the sentence on count 1 is set aside and in lieu thereof a sentence of nine years imprisonment is imposed with the parole eligibility date fixed to 18 March 2010; In relation to FV the appeal is dismissed.

R v Ferguson; ex parte A-G (Qld) [2008] QCA 227 McMurdo P Keane JA Muir JA 8/08/2008

Appeal from the District Court – Application to set aside a permanent stay of prosecution on one count of indecent treatment of a child – trial judge found that the accused could not have a ‘fair’ trial in respect of this charge because judge did not think it improbable that a jury can be empanelled, all of whom would be able to be dispassionate and follow the judge’s directions – trial judge also concluded that the child’s evidence must create doubt as to the child’s reliability and that there were many concerning aspects of the Crown case – On Appeal – the trial judge did not advert at all to s 47 of the Jury Act or to its other provisions aimed at protecting an accused person’s right to a fair trial, such as s 43, s 48, s 53 (2A)(b) and s 69A – the conclusion that the respondent cannot be convicted on the basis of a fair-minded verdict of a jury of his fellow citizens is, to say the least, premature before the processes made available by s 47 of the Jury Act have been implemented – it is no part of the function of a judge to pre-empt the decision of the jury on the question of the guilt or innocence of the accused – the trial judge did not advert to the possibility that any adverse effect of pre-trial publicity might be dissipated by an adjournment of the trial for a few months – this possibility should have been considered and failure to address this was an error – HELD: Appeal allowed, set aside decision below, issue a warrant for the apprehension of the respondent, to lie in the registry for four days.

R v Blanch [2008] QCA 253 Keane JA Mackenzie AJA Douglas J 29/08/2008

Appeal against the District Court – Sentence Application – applicant was convicted on his own plea of one count of dangerous operation of a motor vehicle causing death and grievous bodily harm while adversely affected by an intoxicating substance – sentenced to six years imprisonment with parole eligibility date of 10 September 2010 – On Appeal – trial judge was right to refuse to regard the death of Mr Tierney as merely a tragic accident – the strong need for deterrence in cases of this kind is not lessened by the circumstance that the offender is young – unable to accede that the head sentence was manifestly excessive – common practice of sentencing courts in Queensland to recognise the value of an early plea of guilty and other circumstances in mitigation by ordering that the offender be eligible for parole after serving one-third of the term of imprisonment imposed as the head sentence – there are strong reasons why it should have been applied, in particular to the applicant’s youth, his deep and genuine remorse, and the unusually long delay attending his conviction and sentence – HELD: Application for leave to appeal allowed, allow the appeal to the extent of deleting the parole eligibility date set below and inserting in place thereof 10 March 2010.


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