Hearsay ... the Journal of the Bar Association of Queensland
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Issue 72 - Mar 2015
Court of Appeal Judgment Summary Notes Print E-mail

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The 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. 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

CRIMINAL APPEALS

  • R v Smith [2014] QCA 315 (14/0101) Holmes, Muir and Gotterson JJA 02/12/2014
  • R v Rockwell [2014] QCA 321 (14/0157) Gotterson and Morrison JJA and Dalton J 05/12/2014
  • R v Sheldon [2014] QCA 328 (13/0129) Holmes and Morrison JJA and Alan Wilson J 12/12/2014
  • R v Woods [2014] QCA 341 (14/4) Fraser and Morrison JJA and Henry J 19/12/2014
  • R v Goodwin; ex parte Attorney-General (Qld) [2014] QCA 345 (14/0150) Fraser JA and Mullins and Philippides JJ 19/12/2014
  • R v Williams; Ex parte Attorney-General (Qld) [2014] QCA 346 (14/0090) Holmes JA and McMeekin and Henry JJ 19/12/2014
  • R v JV [2014] QCA 351 (13/0246) Gotterson and Morrison JJA and McMeekin J 19/12/2014
  • R v Tahiraj [2014] QCA 353 (13/0175) Margaret McMurdo P and Fraser JA and Alan Wilson J 19/12/2014
  • R v WAZ [2015] QCA 016 (14/125) Fraser and Gotterson JJA and Henry J 24/02/2015
  • R v Thomas [2015] QCA 020 (14/0144) Holmes and Morrison JJA and Mullins J 27/02/2015

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CIVIL APPEALS 

Mekpine Pty Ltd v Moreton Bay Regional Council [2014] QCA 317; [2015]5 QLR (13/11770) Margaret McMurdo P and Holmes and Morrison JJA 02/12/2014

Appeal from the Land Appeal Court – Compulsory Acquisition of Land – where the applicant entered into a 10 year lease of premises in a shopping centre – where the applicant’s lease was in relation to land registered as Lot 6 – where the shopping centre was extended over both Lot 6 and an adjacent lot, Lot 1 – where the registration of Lot 1 and Lot 6 were cancelled and the land was amalgamated into a new registered lot, Lot 1 – where the applicant's lease was endorsed on the registered survey plan of the new, amalgamated Lot 1 as an "Existing Lease Allocation" – where land on the new, amalgamated Lot 1 was resumed by the Council – where the resumed land was wholly outside the old Lot 6 – where the applicant applied for compensation for its interest in the resumed land under s 12(5) Acquisition of Land Act 1967 (Qld) – where the Council refused the applicant’s application – where the applicant applied to the Land Court to determine whether it had a compensable interest under s 12(5) – where the Land Court held that at the date of resumption, the applicant did have an estate or interest in the resumed land – where the Land Appeal Court overturned the finding of the Land Court – whether leave should be given to appeal against the decision of the Land Appeal Court – whether the Land Appeal Court erred in law in holding that the applicant did not have an estate or interest in the resumed land – where the better view in applying s 182 Land Title Act 1994 (Qld) to the present facts is that "instrument" refers to the survey plan amalgamating the old Lot 6 and the old Lot 1 into the new, amalgamated Lot 1, with the applicant's lease noted on it – where s 182 has the effect that the registration of this survey plan with the applicant's lease noted on it as an "EXISTING LEASE ALLOCATION" transferred or created a leasehold interest on the part of the applicant in the new, amalgamated Lot 1 and as the old Lot 6 ceased to exist from 27 September 2007, the reference to "Land" in the definition in the lease of "Common Areas" then became a reference to the land in the new, amalgamated Lot 1, not the old Lot 6 – where one clear purpose of the registration of the amalgamated survey plan on which the lease was endorsed was to protect the applicant's leasehold interest in the registered new, amalgamated Lot 1 which included the resumed land. Application granted. Appeal allowed. Decision of the Land Appeal Court set aside and instead it is ordered that the appeal is dismissed and the matter remitted to the Land Court for determination of compensation.

CMF Projects Pty Ltd v Riggall & Anor [2014] QCA 318; [2015]2 QLR (14/4459) Holmes, Gotterson and Morrison JJA 02/12/2014

General Civil Appeal – Contracts – where the home owner respondents entered into an agreement with the builder appellant to renovate the former’s home – where the contract was a “cost plus contract” for the purposes of the Domestic Building Contracts Act 2000 (Qld) (“DBCA”) – where the appellant carried out the work between 10 June 2011 and 2 May 2012 – where the respondents made payments on 10 progress claims totalling $1,938,932 – where in October 2013 the appellant commenced proceedings against the respondents for an outstanding sum of $182,252 – where the respondents defended the action on the basis that the agreement was unenforceable for non-compliance with the DBCA – where the appellant filed an amended statement of claim pleading quantum meruit – where the learned primary judge struck out the amended statement of claim – whether the provisions of the DBCA preclude an action based on quantum meruit – where the issue has not been considered before by this Court – where the decision in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 itself illustrates that whether a given right of action has been abrogated by statute is dependent upon the statutory language used – where legislative intention to take away a common law right may be expressly stated or it may arise by necessary implication – where here, an intention to abrogate the restitutionary right to claim quantum meruit has not been expressly articulated – where s 55 regulates a jurisdiction given to QCAT to make an award in favour of a building contractor – where the basis and nature of the award that QCAT may make is distinctly different from an amount that a building contractor might recover on a quantum meruit basis – where the language of the section does not indicate in a very clear way an intention to abrogate such a right, as the test in Berowa Holdings would require it do in order to displace the alternative construction – where abrogation would have the consequence that the building contractor could not counterclaim in the court proceeding for an unpaid amount either under the terms of the contract or on a quantum meruit. Appeal allowed.

airport.jpgQantas Airways Limited v Fisher [2014] QCA 329 (14/5850) Muir JA and Mullins and Henry JJ 12/12/2014

General Civil Appeal – where the respondent injured himself whilst employed as a baggage handler with the appellant – where pain persisted after a period of light duties – where the respondent took a voluntary early redundancy from the appellant and undertook alternative paid employment including self-employment – where a trial ensued over the respondent’s claim – where the respondent was awarded damages – where the appellant alleges the trial judge erred by assessing loss of earnings as opposed to loss of earning capacity – whether the trial judge erred – whether the judgment and order at first instance should be set aside – where in the present case, the period of forecast loss after cessation of employment with the appellant was only five years – where it was therefore unremarkable that the evidence of loss or likely loss of earnings was apparently regarded by the learned trial judge as affording a reliable basis for assessing compensation for the diminution of earning capacity – where it is not the law that the reasons of trial judges must recite a well established matter of principle whenever it is being applied – where reference to loss of earnings was in the circumstances of this case an appropriate method of assessing loss of earning capacity. Appeal dismissed.

Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330 (14/10120) Muir, Fraser and Morrison JJA 12/12/2014

General Civil Appeal – Equitable Remedies – Injunction – where the appellants (“MMM”) entered into two contracts with the respondent (“WICET”) to supply, install and construct works forming part of a coal export terminal – where MMM supplied to WICET bank guarantees to secure performance of MMM’s obligations under the two contracts – where WICET sought to call upon those guarantees – where the primary judge, finding there were not serious questions to be tried, refused an application by MMM for an interlocutory injunction to restrain WICET from calling upon those guarantees – where MMM argues there was a serious question whether s 67J of the Queensland Building and Construction Commission Act (“the Act”) precluded WICET from having any recourse to the guarantees because each contract was a “building contract” – where it was agreed that if each contract was a “building contract” the Act’s notice requirements would apply and WICET had not complied with those requirements – where this Court determined a “building contract” is a contract that involves any “building work” – whether there was a serious question to be tried that each contract involved “building work” as defined in Sch 2 of the Act and under regulations – where as the primary judge considered, the issue ultimately concerns the effect of the definition of “building work” – where MMM did not demonstrate that there was a serious question to be tried that the PE95 contract was a “building contract” as defined in s 67AAA(1) of the Act – where MMM therefore did not demonstrate that there was a serious question to be tried that s 67J of that Act precluded WICET from having recourse to any of the guarantees supplied by MMM under the PE95 Contract – where it it is open to question whether any of the contractual provisions upon which MMM relied describe work which is “building work” within the meaning of the relevant paragraphs of the definition of that term – where the GC12 Contract described itself as being for “Offshore Marine Works: Approach Jetty and Ship Berth” – where some of the buildings are described as being temporary (“temporary office and amenities buildings (including meeting room, training room, crib facilities, kitchen and toilets)”), but some may not necessarily be in that category (for example, “workshop area”, “generators”, “drinking water tanks”, “sewerage tanks”, and “storage area.”) – where at least some of the structures depicted in an exhibited photograph appear to be both substantial and a considerable distance from the waterline – where at a trial the evidence might suggest that the whole of this export coal terminal, or at least the whole of the work within the GC12 Contract, should be treated as a single “maritime structure”, just as a single “harbour” may comprise a variety of different works, some in the sea and some on land above high water mark – where it follows that, although the evidence at a trial might paint a different picture there is a serious question to be tried whether the GC12 Contract is a “building contract” as defined in s 67AAA(1) of the Act – where there is thus a serious question to be tried whether MMM is entitled to an injunction restraining WICET from having recourse to the guarantees supplied by MMM under the GC12 Contract – where the submission for MMM is accepted that the primary judge’s assessment was influenced by his conclusion that there was no serious question to be tried that s 67J of the Act prohibited WICET from having recourse to the guarantees – where there is no evidence that the refusal of an interlocutory injunction to restrain WICET from having recourse to the guarantees under the GC12 Contract will cause material harm to MMM – where for that reason there is no justification for granting an interlocutory injunction to restrain WICET from having recourse to the guarantees supplied under the GC12 Contract. Appeal dismissed

Chandra v Queensland Building and Construction Commission [2014] QCA 335 (14/2885) Margaret McMurdo P and Peter Lyons and North JJ 16/12/2014

Queensland Civil and Administrative Tribunal Application – Occupational Regulation – where QCAT found that the applicant had engaged in professional misconduct – where QCAT made orders that the applicant never be re-licensed as a building certifier by the respondent and that the applicant pay compensation to the home owners – where the applicant lodged an application to the appeal tribunal to extend time to appeal against the decision only in respect of the order that the applicant never be re-licensed as a building certifier – where a Senior Member of QCAT constituting the appeal tribunal refused the application for an extension of time and dismissed the application for leave to appeal or appeal – whether the applicant can appeal against the appeal tribunal's decision to refuse the application for an extension of time – whether the applicant can appeal against the appeal tribunal's decision to dismiss the application for leave to appeal or appeal – where s 32(2) of the QCAT Act authorised the appeal tribunal to conduct the proceeding without an oral hearing "if appropriate" – where decisions which are made in a disciplinary proceeding may be protective of the public; but can also have considerable significance for the person against whom the proceedings were brought – where one of the objects of the QCAT Act is to have the tribunal deal with matters in a way that is, amongst other things, "economical, informal and quick" – where the the requirements of a fair hearing are not to be sacrificed to achieve economy, informality and speed – where the applicant had in his submissions advanced what appears to be a good explanation for his failure to apply for leave to appeal prior to 17 December 2013 – where it is sufficient to say that, in light of the material the applicant had placed before the Senior Member on that question, and in the absence of any other relevant material, she should not have come to that conclusion, without giving the applicant the opportunity to comment on any consideration which might be regarded as justifying it – where the striking feature of the present case is the conclusion by the Senior Member as to prejudice to the home owners, if an extension of time were granted – where in light of the material placed before the tribunal by the applicant, the conclusion of the Senior Member on this question can only be described as extraordinary – where it is not possible to see how the Senior Member could have proceeded from the fact that the applicant sought an extension of time within which to apply for leave to appeal against Order 1 to a conclusion that the extension of time (or even the grant of leave to appeal) would have any effect on the home owners' right to recover money payable under the compensation order – where since the reasons do not demonstrate how the Senior Member reached that conclusion, there is some difficulty in identifying the error – where the conclusion she reached about prejudice to the home owners, without reference to what appeared in the applicant's material relating to the nature of the proposed appeal, and to the absence of prejudice to the home owners, strongly suggests a complete failure on the part of the Senior Member to pay attention to these aspects of the applicant's material – where insofar as the refusal of the application for leave to appeal to the appeal tribunal was a direct product of the reasons of the Senior Member, the present application for leave should be granted, the hearing treated as the hearing of the appeal, the appeal allowed, and the appeal tribunal's decision on that application set aside. Parties are at liberty to file written submissions in relation to the final orders.

helicopter.jpgMcDermott & Ors v Robinson Helicopter Company Incorporated [2014] QCA 357 (14/3840) Margaret McMurdo P and Holmes JA and Alan Wilson J 19/12/2014

Torts – General Civil Appeal – where the first appellant was seriously injured in a helicopter accident – where the respondent manufactured the helicopter – where the appellants alleged at trial that the wording of the helicopter’s maintenance manual failed to specify and require an adequate inspection procedure such that the defect which led to the accident would have been discovered in time and the accident would have been prevented – where the trial judge found that the manual adequately addressed the risks associated with the inspection procedure for the defect, and that the respondent had therefore not breached its duty of care – where the appellants argue on appeal that the trial judge made erroneous findings of fact, and inconsistent and contrary findings of fact, in relation to how the defect came about and if it was detected, and how and the extent to which the maintenance manual addressed the risk of that type of defect – whether the appeal should be allowed – where the plaintiffs’ case was directed to the wording of Robinson’s maintenance manual for the helicopter which, it is alleged, failed to specify and require an adequate inspection procedure such that the defect would have been discovered in time – where in particular it was alleged that the manual, in its directions to servicing mechanics (and pilots), failed to require that the tightness of the four bolts through the flexplate should be checked by a method more stringent than simply looking to see if markings on the bolts, called torque stripes, were in a proper condition – where the very phrase in the manual, ‘verify security’, carries a tacit but compelling acknowledgment from the manufacturer Robinson that, despite being properly torqued at the time of installation or last inspection, bolts may (for whatever reason) be or become loose – where the learned trial judge found that Bolt 4, when last installed, was left loose – where the learned trial judge was not asked, as part of the case pleaded by both parties, to decide how or why that occurred – where this is product liability case against the manufacturer of a helicopter, focusing on its service manual – where in light of the terms of the manual, with its clear wording directed towards checking the security of the bolts, and in light of the way the case was advanced for Robinson, the plaintiffs were not required to prove that the manual failed to address the risk of incompetence or negligence by LAMEs; only, rather, that it failed to adequately address an identified, and accepted, risk - that, for whatever reason, bolts might be loose – where indispensable to the learned trial judge’s reasoning that the manual provided sufficient instruction to meet the risk which arose here is the premise that reliance upon the torques stripes as an indicator of the ‘security’ of each bolt is sufficient - and that, of course, was the finding upon which the plaintiffs’ case foundered – where that finding must stand or fall upon the reliability of the stripes as indicators of a need to do nothing, or something, by way of checking each bolt manually rather than visually – where the manual as it was pre-accident did not make clear to LAMEs verifying security in the context of a periodic service that a visual inspection of torque stripes may not be sufficient to indicate whether critical fasteners like bolt 4 were correctly assembled – where the evidence established that a torque wrench or a simple spanner could be easily used to verify that a bolted joint was not loose; any movement detected meant the bolt would have to be re-assembled and retorqued – where the manual did not provide adequate instructions to LAMEs performing periodic inspections – where had those further, simple instructions been in the manual, the LAMEs would have followed them and inevitably detected movement in the incorrectly assembled bolt – where the LAMEs would have re-assembled and retorqued the bolt and the accident would have been avoided. Appeal allowed. Decision below set aside and instead it is ordered that judgment be entered for the plaintiffs and the matter be remitted to the trial division for the assessment of the plaintiff’s damages.

medical.jpgMules v Ferguson [2015] QCA 005 (14/3754) Margaret McMurdo P, Applegarth and Boddice JJ 06/02/2015

General Civil Appeal – Torts – where the appellant, a 49 year old female, sustained devastating personal injuries, including the loss of her sight and hearing, after contracting cryptococcal meningitis in or about September 2008 – where she sued the respondent, her general practitioner, claiming damages for her personal injuries, which she alleged were occasioned by the respondent’s breach of duty in consultations in the weeks leading up to the ultimate diagnosis – where the primary judge assessed Ms Mules' damages at over $6.7 million but dismissed her claim – where the central focus on appeal was whether the appellant ought to have been referred for specialist assessment by the respondent at the time of her consultations on 18 or 19 September 2008, and whether such a referral would have led to a diagnosis and commencement of treatment before the onset of the appellant’s catastrophic injuries – where there was evidence the appellant had an observable restricted range of movement of the neck by 18 September 2008 – where having regard to the fact the appellant did have cryptococcal meningitis, the trial judge erred in concluding a physical examination performed on 18 or 19 September 2008 would not have caused the respondent to suspect the presence of a symptom with a cause any more sinister than a musculoskeletal cause – where a consideration of the evidence clearly establishes that throughout this period the appellant was complaining of headaches or neck ache – where the collateral evidence in respect of headaches assumes special significance having regard to the trial judge’s finding the appellant was experiencing headaches, something the respondent would have found out had she asked the appellant – where the consequences of the two breaches of duty had to be assessed collectively, in the context of what the respondent ought to have done, having reached a conclusion the continuing nature of the appellant’s symptoms necessitated undertaking a physical investigation, and further enquiry as to the location, nature and severity of those ongoing symptoms – where the evidence in respect of an observable restriction in the appellant’s range of movement and the existence of headaches, in the context of a deteriorating condition, supported a conclusion that if the respondent, exercising reasonable care and skill, had undertaken a physical examination of the appellant’s neck and made appropriate enquiries as to the location, duration, frequency and severity of her headaches at the consultations on 18 and 19 September 2008, she would have determined the appellant had restricted neck movement and headaches in a region consistent with the possibility of meningeal infection – where having regard to the evidence that this insidious disease cryptococcal meningitis, with its gravely serious consequences, is more common in the tropical north, such a conclusion ought to have resulted in the respondent referring the appellant for investigation either to a specialist or to her local hospital – where s 22 of the Civil Liability Act 2003 (Qld) provides a defence to a breach of duty if the medical practitioner establishes he or she acted in a way which was widely accepted by peer professional opinion by a significant number of professionals in that field – where the onus rests on the respondent to satisfy that defence – whether the respondent met that onus required a consideration of the respondent’s conduct in the context of the presenting symptoms as found by the trial judge – where the opinions of two experienced general practitioners were based on facts consistent with the respondent’s version of events – where the facts as found by the trial judge were not entirely consistent with the respondent’s version of events and differed in two critical respects – where the trial judge did not accept the respondent’s version that the appellant had not said anything to her on 18 September about a headache – where the trial judge found the appellant, in referring to her neck pain, also referred to experiencing pain at the base of her head – where the trial judge accepted the reference in the respondent’s notes to reduced range of movement implicitly acknowledged some decline in the appellant’s condition relevant to her previous presentation on 12 September 2008 – where in reaching the conclusion that s 22 was satisfied, the trial judge relied upon the expert opinions expressed by the two experienced general practitioners – where those opinions were not based on the appellant’s presentation, as found by the trial judge and against that background, there was no evidence upon which the trial judge could be satisfied the respondent had discharged her onus under s 22 of the Act. Appeal allowed. Judgment and orders entered below be set aside. Judgment be entered for the appellant in the amount assessed by the trial judge with interest. Leave to make submissions on costs.

Graham v Legal Services Commissioner [2015] QCA 006 (13/10749) Fraser and Gotterson JJA and Philippides J 06/02/2015

Case Stated – Further Order – Costs – where the respondent brought disciplinary proceedings in the Queensland Civil and Administrative Tribunal alleging that the appellant, a legal practitioner, had failed to maintain reasonable standards of competence and diligence in relation to his conduct of a costs assessment – where the Tribunal referred a question of law to the Court – where the substance of the question was whether s 93LA of the Supreme Court of Queensland Act 1991 rendered the appellant immune from the application of the provisions for the discipline of legal practitioners in Ch 4 of the Legal Profession Act 2007 – where the Court answered the question in the negative – where it may be said that the resolution of the point raised by the appellant has contributed to the proper understanding of the law in question, but it is not easy to accept that the proceeding in this Court was brought to advance the public interest or that it involved no private gain – where the appellant acted in his own interests in promoting the referral of the question of law and advocating that he was immune from disciplinary proceedings of the kind brought against him – where the litigation would not be categorised in the Court as “public interest” litigation which justifies departure from the usual approach that costs follow the event. The appellant pay the respondent’s costs of the case stated.


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CRIMINAL APPEALS

R v Smith [2014] QCA 315 (14/0101) Holmes, Muir and Gotterson JJA 02/12/2014

Appeal against Conviction – where the complainant children were attending school swimming lessons with the appellant instructor – where the appellant allegedly indecently touched the complainants as they were swimming – where the appellant was charged with seven counts of indecent treatment of a child under 12 years of age – where the appellant was convicted of five charges and sentenced to a total of twelve months’ imprisonment, to be suspended after four months with an operational period of two years – where after the jury retired they asked to view again the complainants’ pre-recorded evidence in relation to three counts – where the learned trial judge directed the jury not to place undue weight upon that evidence because they had seen it twice – whether the direction was sufficient – where a further direction of the kind proposed by the appellant was not required – where a direction of that kind could have comprised no more than telling the jury that the appellant denied deliberately touching either complainant in the genital area – where the jury were plainly conscious of this and needed no reminding of it – where there were inconsistencies in the complainants’ evidence – whether there was a sufficiently reliable basis for the jury to be satisfied beyond reasonable doubt of the appellant’s guilt – where a summary of the evidence of the complainant, GK, reveals a number of significant inconsistencies in it in respect of each count – where inconsistency in evidence as to the nature of the contact is common to all four counts concerning the complainant GK – where there is no plausible basis for distinguishing the inconsistencies as explicable in some instances, but not in others – where the respondent rightly concedes that there does not appear to be a satisfactory explanation for the differing verdicts on all four counts based upon the differences in evidence for each count – where the complainant GK’s evidence on each of those counts was sufficiently inconsistent in a major respect as to preclude a jury from being satisfied beyond reasonable doubt that the appellant was guilty of intentionally dealing with her in an indecent manner – where there is considerable force in the challenge to the reliability of the evidence of the complainant, ER, as given – where in particular, her evidence concerning the other complainant is a very unreliable account of the contact she claimed to have seen – where given that her head was under water, her lack of a side-on view, her distance from the appellant and GK, and the disturbance of water adjacent to the surface caused by activity in the pool, she was not in a position to observe clearly any contact between the appellant and GK – where she was therefore not capable of giving a reliable account – where moreover, her preparedness to venture an account of what she thought she saw clearly, is apt to suggest the possibility of a creative imagination at play – where there are further aspects to her testimony which cast doubt on its reliability overall – where beyond evidential unreliability, another manifestation of unreasonableness raised by the appellant is the unlikelihood of a scenario in which he would indecently touch children in the presence of many other people including teachers, pool staff and other instructors. Appeal allowed. Convictions set aside. Enter verdicts of acquittal on each count

R v Rockwell [2014] QCA 321 (14/0157) Gotterson and Morrison JJA and Dalton J 05/12/2014

Appeal against Conviction – where the complainant was robbed by two offenders in April 2013 – where in July 2013 the complainant was again robbed but by a single offender whom she recognised from the April incident – where the complainant reported both incidents to the police in August 2013 – where the complainant identified the appellant from a photoboard – where the appellant was charged and convicted after a trial of two counts of robbery – where the complainant was the primary witness at the trial – where her evidence was at times inconsistent – whether the complainant’s evidence was so inconsistent that a jury could not have been satisfied beyond reasonable doubt of the appellant’s guilt – where the evidence adduced at trial was sufficient for the jury to have been satisfied beyond reasonable doubt of the appellant’s guilt – where the appellant’s case is that a miscarriage of justice occurred because the conduct of his counsel at trial deprived him of a chance of acquittal which, but for that conduct, would have been fairly open to him – where of particular significance is that the new evidence, if received, would prove that at all relevant times, the appellant had blue eyes – where it would also prove, by inference, that photograph 10 that the complainant promptly identified as the offender incorrectly depicted the colour of the appellant’s eyes – where an alert defence counsel, upon hearing the complainant describe the offender’s eye colour as “normal brown” would have taken a number of steps – where leave should be granted to adduce the new evidence concerning the appellant’s true eye colour, the wrong depiction of his eye colour in photograph 10, and defence counsel’s knowledge of his client’s true eye colour. Application for admission of fresh evidence granted. Appeal allowed. Convictions set aside. Retrial ordered.

accident.jpgR v Sheldon [2014] QCA 328 (13/0129) Holmes and Morrison JJA and Alan Wilson J 12/12/2014

Appeal against Conviction & Sentence – where the appellant was convicted by a jury of dangerous operation of a vehicle causing the death of two passengers, and leaving the scene when he ought reasonably to have known his passengers had been killed – where the appellant’s vehicle collided with a truck parked in the parking lane – where the appellant asserted that he was distracted by a safe falling onto him – where the appellant submitted that extraordinary emergency under s 25 of the Criminal Code should have been left to the jury – where the trial judge did not direct the jury that the prosecution had to exclude the possibility that an ordinary person would have reacted as the appellant did – where no such direction was sought – whether the failure to leave the excuse deprived the appellant of a real chance of acquittal – whether a miscarriage of justice has resulted – where the excuse under s 25 of the Code is available to a person charged with dangerous driving – where there is no doubt that the scenario depicted by the appellant, if accepted, could amount to a circumstance of sudden emergency so as to attract the application of s 25 – where the onus of excluding the excuse beyond reasonable doubt lay on the prosecution – where a direction on the excuse would have told the jury that they had, firstly, to consider whether they were satisfied that the circumstances did not amount to a sudden emergency; and, if they were not so satisfied, then to consider whether the appellant’s reaction was other than could reasonably be expected of an ordinary person with ordinary powers of self-control – where there is no obvious forensic reason for the defence to have failed to seek a direction on the excuse under s 25 – where the excuse required consideration of the reasonableness of the appellant’s reaction as a person interrupted in his driving by a falling safe, rather than an objective consideration of what was involved in the safe operation of a vehicle – where failure to leave the excuse has deprived the appellant of a real chance of acquittal so that the appeal must be allowed on this point alone – where the appellant had sought leave to appeal against the sentences imposed for both the 2009 and 2011 offences – where it is necessary to re-sentence in respect of the 2009 offence, if only because of the serious violent offence declaration attached to it – where even making allowance for the period of roughly a year spent on remand, a sentence of seven years imprisonment is appropriate, having regard to the aggravating circumstance of the appellant’s leaving the scene knowing the other driver to have been killed or injured, and his previous conviction of dangerous operation of a vehicle. Appeal against conviction allowed. Conviction set aside. Retrial ordered. Application for leave to appeal against sentence granted and allowed. Impose a sentence of seven years imprisonment, with parole eligibility date fixed at 2 May 2016. Declaration of days already served under that sentence.

R v Woods [2014] QCA 341 (14/4) Fraser and Morrison JJA and Henry J 19/12/2014

Appeal against Conviction & Sentence – where the appellant was found guilty after trial of entering a dwelling with intent to commit an indictable offence and wounding with intent to disfigure – where the appellant had said to police “You should know me, I’m the granny slasher”, and that statement was admitted at trial as an admission – whether that evidence was not capable of amounting to an admission and was therefore inadmissible – where like the primary judge, it is considered that evidence of the statement made by the appellant is close to the borderline between admissible and inadmissible evidence, but for the following reasons it is respectfully concluded that it was inadmissible – where the meaning of the appellant’s statement cannot be determined without regard to the context in which it was made – where the relevant context was that: the appellant had persistently denied involvement in the offences; whilst those denials were made many months before the appellant made the statement, there was nothing to suggest that the appellant intended to withdraw his denials; the appellant was present in the holding cell at the watch house at Wynnum only for the purpose of appearing at the mention of a committal hearing relating to the offences; it was common ground that the appellant had earlier been referred to in the media as “the granny slasher”; and the appellant made the statement immediately after an enquiry by police about the identity of the prisoners in the holding cell – where the circumstances revealed by the evidence of the police witnesses demonstrate that the appellant’s statement amounted only to a description of the most serious offence with which he had been charged so as to identify him in response to the police inquiry – where that the inquiry was not made directly of the appellant and that he identified himself in such a callous way do not detract from that conclusion – where acknowledging that this is an issue about which different views might reasonably be held it is considered that the better view is that the statement is not capable of amounting to an admission – where there was other evidence in the Crown case which might justify a jury in concluding that the appellant was the intruder, but that is not an inevitable conclusion once the evidence of the alleged admission is excluded – where it is necessary to grant leave to appeal against the sentence, if only to set aside the orders making the effective sentence of three years imprisonment cumulative upon the sentence of fourteen years imprisonment, and to fix a parole release date – where for the offences committed by the appellant a parole release date, rather than a parole eligibility date, must be imposed if the sentence does not exceed three years imprisonment: Penalties and Sentences Act 1992 (Qld), s 160B – where accordingly, emphasising that all of the mitigating factors upon which the appellant relied are fully taken into account in this sentence, the appellant’s sentence for these offences should be three years imprisonment with a parole release date fixed after eighteen months. Appeal against conviction on two specified counts allowed. Conviction and sentence set aside. Retrial ordered on these specified counts. Otherwise confirm the sentences on other indictments. Parole release date fixed at 24 November 2015.

computer.jpgR v Goodwin; ex parte Attorney-General (Qld) [2014] QCA 345 (14/0150) Fraser JA and Mullins and Philippides JJ 19/12/2014

Sentence Appeal by Attorney-General (Qld) – where respondent pleaded guilty to 125 counts of recording in breach of privacy, 13 counts of burglary by breaking, in the night, six counts of sexual assault, three counts of burglary and stealing, one count of burglary, one count of making child exploitation material, two counts of indecent treatment of a child under 12, one count of observation in breach of privacy, one count of distributing child exploitation material and one count of possessing child exploitation material – where the respondent was sentenced to eight years imprisonment for each count of burglary by breaking, in the night and lesser concurrent sentences for each of the other offences, with eligibility for parole after serving two years and eight months – where the ground of appeal was manifest inadequacy – where there was a lack of comparable sentences – whether the sentences were unreasonable and plainly unjust – where in view of the respondent’s argument based on the lack of comparable sentences, it is necessary to consider the effect on both the sentencing judge and the appeal court of the absence of comparative decisions for the respondent’s offending – where the lack of comparable sentences may deprive the sentencing judge of the assistance of “the yardstick” for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending – where having regard to the totality, period and variety of the respondent’s offending, the effective head sentence of eight years (before any further mitigation) gives recognition to the plea of guilty to the 154 offences – where it is common for a parole eligibility date on a guilty plea to be fixed after one-third of the head sentence, but that is not an invariable rule, as the circumstances may not justify that approach – where the facts and circumstances of the respondent’s multiple offences make this an exceptional case that does not justify the common approach – where it is the further mitigation of that effective sentence of eight years with an eligibility for parole date fixed after one-third of the sentence that results in the sentence that is unreasonable and fails to reflect the overall criminality of the respondent’s offending. Appeal allowed. Sentences varied by removing the parole eligibility date. Otherwise the orders imposed by the sentencing judge are confirmed.

R v Williams; Ex parte Attorney-General (Qld) [2014] QCA 346 (14/0090) Holmes JA and McMeekin and Henry JJ 19/12/2014

Sentence Appeal by Attorney-General (Qld) – where the respondent pleaded guilty to assault with intent to commit rape, deprivation of liberty and rape – where the respondent was sentenced to eight years imprisonment with eligibility for parole after three years – where the respondent committed the offences against the complainant in a public place when she was on an evening training run – where the appellant contends that the sentence was plainly unreasonable and unjust – where the appellant appeals the sentence on the basis that the sentencing judge should have declared this a serious violent offence under s 161B(3) of the Penalties and Sentences Act 2003 (Qld) – where the appellant contends the trial judge misapprehended an obligation to set a parole eligibility date and failed to give sufficient weight to the aggravated culpability of the respondent due to his self-intoxication at the time of the offence – where the appellant submits the parole eligibility date produced an exceptional result – whether the sentence was unjust or unreasonable – whether the sentence was manifestly inadequate – where the impression that the sentencing remarks give is that her Honour moved from a selection of eight years as a suitable head sentence automatically to a conclusion that something around the conventional one-third mark as the minimum non parole period was appropriate without pausing to consider the overall effect of her conclusion – where the concern is that by adopting what might be thought to be the conventional approach the sentencing judge has in the end result given too much weight to mitigating factors and insufficient weight to the need to punish and deter, important factors in cases of this type – where the head sentence of eight years imprisonment was plainly within range, bearing in mind the mitigating features to which have been referred to – where the appellant argued that a declaration of a serious violent offence ought to be made pursuant to s 161B Penalties and Sentences Act 1992 (Qld) requiring that the respondent serve 80 per cent of his sentence before becoming eligible for parole – where that declaration ought not to be made – where the circumstances of the offence and the personal mitigating features do not suggest that the protection of the public requires such a long period of actual custody before eligibility for parole – where there should be no declaration as to the eligibility date with the result that the usual statutory period should apply – where that approach gives sufficient recognition to the plea of guilty and the other mitigating features and it reflects, if only just, the need to punish, deter and denounce. Sentence imposed below set aside. The respondent be sentenced to imprisonment for eight years.

R v JV [2014] QCA 351 (13/0246) Gotterson and Morrison JJA and McMeekin J 19/12/2014

Sentence Application – where the applicant pleaded to the manslaughter of his infant twins – where the applicant’s de facto partner, and the mother of the deceased, was the co-accused – where the deceased were 18 months old at the time of death – where the applicant and co-accused failed to engage with the deceased, including feeding them – where the applicant and co-accused were sentenced to eight years’ imprisonment – where the applicant submitted that he was not the primary caregiver and that there was no violence involved – whether the sentence was manifestly excessive – where the respondent’s submissions are accepted that there are no truly comparable cases for the applicant’s offending – where the applicant’s conduct cruelly harmed the twins at several levels – where he contributed to Ms MKS’ mental condition and resultant impaired fitness to care for them – where more significantly, he abnegated any responsibility for the twins – where towards the end, he completely ignored their needs and welfare – where he did so consciously, ignoring the concerns of others expressed to him about them – where the departure from reasonable community standards exhibited by him was both profound and inexcusable – where the sentence imposed on the applicant of eight years’ imprisonment was an appropriate exercise of the sentencing discretion – where the sentence also bears an appropriate parity relationship with that imposed on Ms MKS. Application refused.

R v Tahiraj [2014] QCA 353 (13/0175) Margaret McMurdo P and Fraser JA and Alan Wilson J 19/12/2014

Appeal against Conviction & Sentence – where the appellant was convicted after trial of two counts of using a carriage service to procure a person under 16 (counts 1 and 6); unauthorised access to a computer with intent (count 2); using a carriage service to make child pornography material available (count 3); using a carriage service to access child pornography material (count 4); using a carriage service to access child abuse material (count 5); and knowingly possessing child exploitation material (count 7) – where the appellant was sentenced to an effective term of 12 years imprisonment – where the trial judge considered count 6 to be the most serious offence – where the appellant was sentenced to two periods of cumulative imprisonment – whether the sentence was manifestly excessive – where the learned sentencing judge rightly identified that he could not take into consideration the prosecutor's statement of opinion as to the appropriate sentence – where ordinarily a court must give considerable weight to the immaturity of offenders, particularly youthful first offenders – where the appellant had many people who spoke well of him and who considered this conduct was out of character, a supportive family, and he is completing tertiary studies which should aid in his rehabilitation – where the detrimental impact on the victim may be less in offences of this kind when the offender and the victim are closer in age – where fortunately for the appellant and no doubt because of B's good sense, his criminal predatory efforts rendered him no success and the offending did not continue over a lengthy period – where count 1 was a concerning example of vicious, bullying power play over the internet – where the appellant took advantage of a vulnerable young teenager, not quite 14 years old, and forced her to participate in humiliating sexual behaviour on webcam for his gratification – where as to count 3 the appellant deliberately posted on the internet the video recording of the complainant taken in the circumstances outlined in count 1 – where there is no evidence that A has been detrimentally impacted by the offending in count 1 but it has the potential to do so and will forever remain a concern for her – where it is uncontroversial that cumulative sentences may warrant moderation under the totality principle – where the sentence imposed, however, was in the circumstances crushing and manifestly excessive so that this Court should resentence the appellant – where an effective total sentence of eight years imprisonment with a non-parole period of four years should be substituted – where this remains a severe penalty for any 19 year old first offender of this kind – where it stands as a firm deterrent to him and others who would use the internet to criminally prey on young people, whilst still reflecting his youthfulness and supporting his rehabilitative prospects. Appeal against conviction dismissed. Sentence application granted and allowed. Cumulative sentences of eight years, non-parole period of four years imposed. (brief)

R v WAZ [2015] QCA 016 (14/125) Fraser and Gotterson JJA and Henry J 24/02/2015

Sentence Application – where the applicant pleaded guilty to thirteen counts on the indictment – where the offences were attempted unlawful use of a motor vehicle with damage (Count 1), armed robbery (Counts 2, 3, 4, 5, 6 & 14), attempted unlawful use of a motor vehicle (Count 7), armed robbery in company (Counts 8 & 10), unlawfully using a motor vehicle (Counts 9 & 11), stealing (Count 12) and fraud (Count 13) – where the applicant was sentenced to nine months’ detention for Count 1, to three years’ detention for each of Counts 2, 3, 4, 5, 6, 8, 10 and 14, to six months’ detention for Count 7, to twelve months’ detention for each of Counts 9 and 11 and to seven days’ detention for each of Counts 12 and 13 – where all sentences were concurrent and the applicant was ordered to serve 50 per cent of each sentence – where no convictions were recorded – whether the sentences imposed on Counts 2, 3, 4, 5, 6, 7, 8, 10 and 14 were manifestly excessive – where the learned sentencing judge noted the dearth of authorities at the appellate level involving serious youth offending in such a number, pattern and nature of offences – where his Honour observed that without any comparable decisions to assist, “it seems, then, that I need to look to the penalty imposed on Mr Prindable as a starting point” – where Mr Prindable was an adult co-offender of the applicant who had been sentenced to six years’ imprisonment, with parole eligibility after two years – where the expression “unfortunate phrase” aptly acknowledges the inappropriateness of adopting Mr Prindable’s sentence as akin to a standard to be adjusted to reflect the criminality of the applicant’s offending, his personal circumstances and the YJA principles – where his Honour’s description of the starting point as “logical” and “appropriate” in the course of submissions reveal as much the prominence of the role given by him to Mr Prindable’s sentence in fixing the applicant’s sentence as does the term itself – where the adoption Mr Prindable’s sentence as the starting point overlooked a fundamental consideration, namely, that the sentencing regime for child offenders and that for adult offenders are distinctly different – where the important difference has consistently been recognised by this Court – where the error of legal principle in exercising the sentencing discretion vitiated the sentencing process – where in considering the cognate New South Wales provision in Kentwell v The Queen (2014) 88 ALJR 947, a majority of the High Court recently observed that, under the provision, in the case of specific sentencing error enlivening the appellate court’s power to intervene, there is a duty to re-sentence “unless in the separate and independent exercise of its discretion, (the court) concludes that no different sentence should be passed” – where allowing for the features of mitigation including the applicant’s relatively minor criminal history, his co-operation in turning himself in to police, the support given to him by his family, his clear sense of remorse, and his efforts towards rehabilitation, for Counts 2, 3, 4, 5, 6, 8, 10 and 14 a sentence of three years’ detention is appropriate in each case with release at 50 per cent with no convictions recorded – where given that the sentences are no different from those imposed at sentence, consistently with Kentwell, the appeal against sentence must be dismissed. Application granted. Appeal dismissed.

R v Thomas [2015] QCA 020 (14/0144) Holmes and Morrison JJA and Mullins J 27/02/2015

Sentence Application – where the applicant pleaded guilty to one count of dangerous operation of a motor vehicle causing death and grievous bodily harm, whilst adversely affected by an intoxicating substance, namely methylamphetamine – where the applicant was sentenced to nine years imprisonment, with eligibility for release on parole after he had served three years – where the accident resulted in the death of one child and caused grievous bodily harm to another child – whether the driving involved any element of deliberate recklessness – where it is of some importance that the dangerous operation of a vehicle causing death and grievous bodily harm to which the applicant pleaded guilty was of limited duration and did not involve any element of deliberately reckless driving – where there is a distinction to be drawn between the time and distance for which a defendant drives while his faculties are impaired and the duration of his driving which is actually dangerous and which results in death; the latter conduct, of course, being the gravamen of the offence – where there is a significant difference between the case of an intoxicated driver who deliberately undertakes dangerous manoeuvres and one who is overcome by the effects of his intoxication so that he loses control of his vehicle – where the context of the dangerous driving in the present case warranted a severe sentence – where the applicant drove over some distance, with small children in the car, in an impaired condition which he had induced in himself although knowing of his responsibilities – where a term of nine years imprisonment might have been appropriate if there had been some element of deliberate or protracted recklessness in the applicant’s manner of driving, or had he, like the applicants in Clark ([2009] QCA 361) and Kelly ([1999] QCA 296) been facing sentence for manslaughter. Application granted. Appeal allowed. Sentence imposed below varied by substitution of seven years imprisonment on count 1 with parole eligibility on 23 September 2016.


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