Issue 15: December 2006
Court of Appeal Judgments - Summary Notes

main_11CourtAppeal.jpgThe following summary notes of recent decisions of the Queensland Court of Appeal have been prepared by the Associate to the Hon. Justice Williams, James Duffy. 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.

CIVIL APPEALS

SAY v AZ; ex parte A-G (Qld) [2006] QCA 462, Appeal No 5783 of 2006, 10 November 2006
Application for Leave s 118 DCA (Civil) – where the appellant sought criminal compensation from the respondent (stepfather) after he was convicted of one count of rape against her – where the psychologist found that she suffered from post-traumatic stress disorder – where there was abuse prior to rape – where there is more than one cause of injury and there was a contribution of acts not the subject of conviction to the injury – Held: Appeal allowed and order below set aside, respondent to pay compensation of $42,750 to the applicant, together with her costs of the appeal.

Meredith v State of Queensland [2006] QCA 465, Appeal No 1568 of 2006, 10 November 2006
General Civil Appeal – where an examination of the respondent was ordered pursuant to s 38(1)(c) of the Criminal Proceeds Confiscation Act 2002 (Qld) – where argument surrounds the scope of that examination – whether the appellant was authorised to ask, and whether the respondent was obliged to answer, questions exclusively about whether the respondent had engaged in serious criminal activity – Held: Appeal dismissed, the State of Queensland to pay the respondent’s costs of the appeal.

Smithson v Guest & Anor [2006] QCA 473, Appeal No 4616 of 2006, 17 November 2006
General Civil Appeal – where the appellant claims damages for personal injuries sustained as a result of a motor vehicle collision – where the road on which the incident occurred was being resurfaced, making it wet and slippery – the appellant’s vehicle skidded off the road –where first defendant’s vehicle (whilst attempting to aid the appellant) skidded off the road and hit the appellant’s vehicle – whether there was any departure from requisite standard of care – whether appellant’s claim for damages should have been dismissed.

Petrie v Qld Community Corrections Board [2006] QCA 474, Appeal No 7179 of 2006, 17 November 2006
General Civil Appeal - where respondent sought judicial review of decision refusing parole – where learned primary judge referred matter back to appellant for reconsideration – where appellant appealed decision of primary judge but subsequently granted parole to respondent – whether declaratory relief should be granted – Held: Appeal dismissed, appellant to pay the respondent’s costs of the appeal to be assessed on an indemnity basis.

Edwards v Nominal Defendant [2006] QCA 475, Appeal No 4386 of 2006, 17 November 2006
General Civil Appeal - where the appellant was injured as a result of the negligent driving of an unregistered motor vehicle and sued the respondent – after a trial, the appellant was found to have contributed to her injuries and liability was apportioned 50/50 – whether the appellant actually contributed to her own injuries – whether the apportionment of negligence was reasonable – whether the assessed quantum of damages was too low – Held: Appeal dismissed with costs.

Page v The Central Queensland University [2006] QCA 478, Appeal No 4786 of 2006, 17 November 2006
General Civil Appeal – where the appellant commenced an action in January 1997 seeking to recover damages from the respondent for loss allegedly suffered because of the respondent’s failure in 1991 to admit the appellant to a course of PhD study and award a scholarship to the appellant - appellant made a number of complaints to agencies of the executive government seeking redress for the wrong allegedly done him by the respondent – whether the appellant’s delay had prejudiced the prospects of a fair trial of his claim – whether the appellant was denied natural justice – Held: Appeal dismissed, appellant to pay the respondent’s costs of the appeal.

KQ v HAE [2006] QCA 489, Appeal No 5545 of 2006, 24 November 2006
General Civil Appeal – where the appellant claimed a property adjustment under the provisions of the Property Law Act 1974 (Qld) on the basis that she and the respondent had lived together in a de facto relationship – where the appellant and respondent were involved in a full relationship and then friendship over a number of years, but never lived together – where financial assistance between the parties existed – whether there existed any error or bias on the part of the trial judge – whether there was a de facto relationship between the appellant and respondent.

Dore (as executor of the will of W H B Chenhall dec’d) [2006] QCA 494, Appeal No 5801 of 2006, 24 November 2006
General Civil Appeal – where the respondent acted as solicitor for the testator for a number of years performing mainly conveyancing work – the respondent drafted a will on behalf of the testator which significantly benefited the respondent – where the trial judge upheld the validity of the will and the substantial gift to the respondent - whether respondent had a duty to refuse to make a will that benefited him – Held: Appeal dismissed.

lawbooks.jpgAston v Redcliffe City Council [2006] QCA 480, Appeal No 6128 of 2006, 17 November 2006
General Civil Appeal – where the plaintiff was riding a bicycle and alleged a piece of broken glass was thrown into the tyre of the bike by a mower operated by an employee of defendant – the plaintiff alleged the glass caused the tyre to deflate and the plaintiff to suffer personal injuries - whether there was sufficient basis in the evidence for the learned trial judge’s finding that the accident occurred because of glass thrown out by the lawnmower - whether the defendant’s employee was negligent in his operation of the lawnmower – Held: Appeal dismissed, defendant to pay the plaintiff ’s costs of the appeal.

CRIMINAL APPEALS

R v Moffett [2006] QCA 444, CA No 216 of 2006, 3 November 2006
Sentence Application – where the applicant pleaded guilty to entering a dwelling with intent to commit an indictable offence with circumstances of aggravation, unlawful assault occasioning bodily harm while armed with an offensive weapon and unlawful assault – the applicant was sentenced to two years imprisonment suspended after six months – the applicant committed the offences in the company of two others – whether the trial Judge accurately differentiated between the criminal responsibility in imposing sentence – whether the applicant’s sentence was in proportion with his co-offenders – where the applicant instigated the offences and had previous convictions for assault occasioning bodily harm – whether the sentence was manifestly excessive – Held: Application for leave to appeal against sentence dismissed.

R v Hook [2006] QCA 458, CA No 220 of 2006, 10 November 2006
Sentence Application – where the applicant pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol and was sentenced to three years imprisonment suspended after 12 months for an operational period of four years – the applicant was also disqualified from holding or obtaining a driver’s licence for four years – whether the three year imprisonment sentence should be suspended after six months – whether the sentence was manifestly excessive in all the circumstances – Held: Application for leave to appeal against sentence dismissed.

R v Taylor [2006] QCA 459, CA No 162 of 2006, 10 November 2006
Sentence Application – where the applicant pleaded guilty to one count of unlawful trafficking of a dangerous drug, 11 counts of supplying a dangerous drug to another, two counts of possession of a dangerous drug and was sentenced to a total of seven years and four months imprisonment – whether the sentencing judge erred in neither suspending the sentence nor recommending consideration for release on parole at some point earlier than the half-way mark of that sentence – whether the sentence is manifestly excessive in all the circumstances – Held: Appeal against sentence allowed, vary the sentence imposed of seven years and four months imprisonment by fixing a parole eligibility date of 26 November 2008.

R v Balan [2006] QCA 463, CA No 109 of 2006, 10 November 2006
Appeal against Conviction – where the appellant appeals against his conviction on one count of perjury – the appellant was convicted of knowingly giving false testimony at a Crime and Misconduct Commission hearing – where the appellant argues that he misunderstood the questions being asked of him at the hearing – where no evidence of this was given by the appellant at trial – whether the verdict was unreasonable – Held: Appeal against conviction dismissed.

R v HAD [2006] QCA 464, CA No 172 of 2006, 10 November 2006
Appeal against Conviction & Sentence - where the appellant was convicted after trial on multiple counts of sexual offences against young children including his own daughter – of the 31 counts on which the appellant was convicted, he was sentenced to a total of 13 years imprisonment to be served concurrently – where the appellant contends that the convictions on the two counts of rape were unsafe and unsatisfactory as they were based on uncorroborated evidence – the appellant also contends that his legal representatives did not pursue certain lines of cross examination of crown witnesses – whether the convictions of rape are unsafe and unsatisfactory – whether the sentence of 13 years imprisonment is manifestly excessive in all the circumstances – Held: Appeal against conviction dismissed, application for leave to appeal against sentence refused.

R v King [2006] QCA 466, CA No 231 of 2006, 10 November 2006

Sentence Application – where the applicant pleaded guilty to two counts of assault occasioning bodily harm, one count of wilful damage and three counts of unlawful use of a motor vehicle and was sentenced to a total of two years imprisonment, suspended after nine months for an operational period of three years – the applicant was also disqualified from driving for a period of three years – where the applicant possessed a lengthy criminal history – whether the sentence for assaults occasioning bodily harm was manifestly excessive in all the circumstances – Held: Application for leave to appeal against sentence is refused.

R v Kelly [2006] QCA 467, CA No 175 of 2005, 10 November 2006
Appeal against Conviction and Sentence – where the appellant/applicant was convicted of willingly and unlawfully killing a dog – whether the trial judge erred in granting leave to the prosecution under s 15(2) of the Evidence Act 1977 (Qld) to cross-examine the appellant/applicant about his prior convictions – whether the conduct of the appellant/applicant’s defence case involved imputations on the character of the prosecutor or a prosecution witness sufficient to enliven s 15(2) discretion – the appellant/ applicant was sentenced to four months imprisonment suspended after one month for an operational period of five years, and in addition was fined $5,000 – whether the sentence was manifestly excessive in all the circumstances – Held: Appeal against conviction dismissed, appeal against sentence allowed, the sentence imposed at first instance is varied by substituting a $1,000 fine for the $5,000 fine.

R v NH [2006] QCA 476, CA No 105 of 2006, 17 November 2006
Sentence Application – where the applicant was convicted of two counts of indecent treatment of a child under 16 and two counts of rape and was sentenced to three years imprisonment on all counts – on appeal, the conviction and sentence on one count of rape was set aside and a conviction of indecent dealing with a child under 16 was substituted – whether the sentence should be reduced in light of the substituted charge – Held: Sentences on all counts reduced to two and a half years with declarations as to time already served.

R v Quick; ex parte A-G (Qld) [2006] QCA 477, CA No 277 of 2006, 17 November
2006
Sentence Appeal by A-G (Qld) – where the respondent pleaded guilty to two counts of indecent treatment of a child under 16 and was sentenced to an 18 month wholly suspended sentence on count one and a 12 month intensive correction order on count two – where the case involved a marked age disparity and breach of trust – whether the circumstances were so "exceptional” such that the respondent should be spared actual imprisonment - Allow the appeal, set aside the intensive correction order imposed in respect of count two. Set aside the order made in respect of count one, and order in lieu, in respect of each of counts one and two, that the respondent be imprisoned (concurrently) for 18 months, suspended after three months for an operational period of two years.

R v GW [2006] QCA 479, CA No 252 of 2006, 17 November 2006
Appeal against Conviction – where the appellant was convicted by a jury of one count of indecent treatment of a child under his care and one count of rape - the complainant child was the appellant’s stepdaughter – where the complaint was made approximately two years after offences had occurred and there were inconsistencies in the complainant’s evidence - where the appellant also contends that inadmissible evidence was led at trial – whether the verdicts were unreasonable on the evidence – Held: Appeal against conviction dismissed.

R v Nahirni, Zmire & Zmire [2006] QCA 488, CA Nos 182, 183, 184 of 2006, 24 November 2006
Appeals against Conviction – where the appellants were convicted of unlawful assault occasioning bodily harm when in company – each appellant was sentenced to 12 months imprisonment, suspended after two months, with an operational period of 12 months – whether the verdicts were unreasonable and insupportable having regard to the evidence – whether the trial judge’s directions to the jury on additional defences, confused his direction to the jury on self-defence – Held: Appeals against conviction dismissed.

R v Cherrie [2006] QCA 491, CA No 256 of 2006, 24 November 2006
Sentence Application - where the applicant pleaded guilty to two counts of assault occasioning bodily harm in company, one count of common assault and one count of wilful damage and was sentenced to two years imprisonment, suspended after six months for an operational period of two years – the applicant possessed a relevant criminal history – whether the sentence was manifestly excessive in all the circumstances – Held: Application for leave to appeal against sentence refused.

R v Clifford; ex parte A-G (Qld) [2006] QCA 492, CA No 257 of 2006, 24 November 2006
Sentence Appeal by A-G (Qld) – where the respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16 and was sentenced to nine months imprisonment, wholly suspended for an operational period of 12 months - where at the time of the offence the respondent was 29 and the complainant was a 13 year old girl - where the respondent pleaded guilty at the earliest opportunity, showed genuine remorse and has good prospects of rehabilitation - the respondent was sentenced to nine months imprisonment wholly suspended for an operational period of 12 months - whether the sentence imposed was manifestly inadequate in all the circumstances.

R v Voyka [2006] QCA 493, CA Nos 149 & 186 of 2006, 24 November 2006
Appeal against Conviction and Sentence – where the appellant was convicted of five counts of defrauding the Commonwealth under s 29D Crimes Act 1914 (Cth) and was sentenced to three and a half years imprisonment for each count, to be served concurrently (to be released after giving security by recognisance in the sum of $5,000 after serving 21 months imprisonment) – the appellant did not deduct Pay as You Earn tax from the wages of his workers and remit that to the Australian Tax Office (ATO) – where the appellant referred to workers as “subcontractors” rather than employees to avoid tax – whether the sentence was manifestly excessive in all the circumstances – Held: Appeal against conviction dismissed, application for leave to appeal against sentence dismissed.