General Civil Appeal — the appellant is currently imprisoned for convictions for sexual offences against children — a continuing detention order was made pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) — the appellant’s criminal history is one of persistent paedophilia — prior terms of imprisonment and bail orders have not deterred the commission of further offences — where appellant has consistently denied guilt and has not participated in any treatment program — where appellant was considered a high risk to the community if released — whether the case could be considered ‘exceptional’ within the meaning of the Act — whether the trial judge erred in making the continuing detention order — HELD: appeal dismissed.
Tolocorp Pty Ltd v Noosa Shire Council & Anor [2007] QCA 33; Appeal No 4753 of 2006, 9 February 2007
Application for Leave Integrated Planning Act — Tolocorp wished to subdivide certain land — an application was lodged for a development permit under the Integrated Planning Act 1997 — the council refused to accept the application on the ground that it was ‘not properly made’ — Tolocorp disagreed and commenced proceedings in the Planning and Environment Court for declaratory relief — the trial was confined to issues of reconfiguration of land and whether there was a change in material use — whether development application was properly made and not contrary to regulatory provisions — whether declaratory relief was properly given — whether leave to appeal should be granted — HELD: application for leave to appeal dismissed with costs.
Allison v Chief Executive, Department of Corrective Services [2007] QCA 52; Appeal No 8027 of 2006, 2 March 2007
General Civil Appeal — where appellant sentenced to life imprisonment for murder — where appellant achieved an open security classification — where classification subsequently revised and appellant transferred from a prison farm to Wolston Correctional Centre — where appellant’s transfer and classification were subject to a number of reviews by the General Manager — where June review resulted in a re-classification of the prisoner as low security — where General Manager was exercising a delegated power which was subjected to an express condition which limited his ability to classify the prisoner as open security — whether the decision-maker exercised an improperly fettered power — HELD: appeal allowed — June decision to classify as low security set aside — appellant’s classification to be reconsidered by an officer holding unlimited delegation of powers given under the (repealed) Corrective Services Act 2000, s 12(2) and s 12(4) — respondent to pay the appellant’s costs of the appeal and costs below.
Jet Developments P/L & Anor v Denning [2007] QCA 55; Appeal No 10779 of 2006, 2 March 2007
General Civil Appeal — where appellant granted the first respondent an option to buy land — where contract provided that the first respondent could nominate another person to exercise the option “before” the buyer exercised the option — where first respondent sought to nominate the second respondent and the second respondent sought to exercise the option — whether the nomination of the second respondent occurred “before” the exercise of the option — whether appellant had a legitimate ground to refuse to complete the sale — HELD: appeal dismissed.
Nicholl Holdings P/L v Tokio Marine & Fire Insurance Co Ltd [2007] QCA 57; Appeal No 10484 of 2006, 2 March 2007
General Civil Appeal — the plaintiff brought an action for moneys alleged to be owing by the defendant to the plaintiff for medical services rendered by the plaintiff to tourists holding policies of travel insurance with the defendant — where defendant applied for summary judgment under r 293 Uniform Civil Procedure Rules 1999 (Qld) on the basis that the plaintiff had no real prospects of succeeding — where learned primary judge gave judgment for the defendant — whether primary judge erred in concluding plaintiff’s claim lacked ‘real prospects’ of being established at trial — HELD: appeal dismissed — plaintiff to pay the defendant’s costs of the appeal.
DPP (Cth) v Corby [2007] QCA 58; Appeal No 1365 of 2007, 2 March 2007
General Civil Appeal — where Corby was to receive certain payments from the publication of a New Idea article and her memoirs — where the Cth DPP, on an ex parte application sought interim orders pursuant to s 20(1)(d) Proceeds of Crime Act 2002 (Cth) — whether Corby “derived” literary proceeds in relation to a foreign indictable offence — HELD: leave to appeal granted — appeal allowed — orders as per draft with addition of order that any consequential proceedings be brought in the trial division of the Supreme Court.
Blackbird Energy P/L v Vanbeelen [2007] QCA 60; Appeal No 5784 of 2006, 2 March 2007
General Civil Appeal — the respondent obtained interim judgment in the District Court under the Building and Construction Industry Payments Act 2004 (Qld) — where issues between parties subsequently resolved in common law proceeding — where interim judgment subject to appeal (in these proceedings) permanently stayed — whether appeal should proceed where issues on appeal are purely hypothetical — whether appeal should proceed in relation to the costs of interim judgment — HELD: appeal dismissed —appellant to pay respondent’s costs fixed at sum of $10,000.
Hintz v WorkCover Queensland & Anor [2007] QCA 72; Appeal No 6032 of 2006, 16 March 2007
General Civil Appeal — where appellant allegedly suffered psychological and physical injury at work — where appellant commenced an action for damages outside the limitation period — whether the appellant could have commenced action prior to receiving damages certificate from WorkCover in respect of psychological injury — whether appellant should be granted an extension of time — HELD: appeal dismissed — appellant to pay respondent’s costs of and incidental to the appeal.
Sorrento Medical Service P/L v Chief Executive, Dept of Main Roads [2007] QCA 73; Appeal No 3944 of 2006, 16 March 2007
General Civil Appeal and Miscellaneous Application (Civil) — the appellant had car-parking rights over land for its medical centre — where rights were granted by licence — where part of land resumed by respondent — where the President of the Land Court determined the Land Court had no jurisdiction to hear the matter — where Land Appeal Court refused appeal — whether appellant licensee entitled to compensation under the Acquisition of Land Act 1967 (Qld) — the meaning of ‘interest’ — HELD: appeal allowed — judgment of Land Appeal Court set aside — appeal from Land Court allowed — appellant’s claim remitted to the Land Court for determination — respondents to pay the costs of the appeal.
Mitchell v Pacific Dawn P/L [2007] QCA 74; Appeal No 7816 of 2006, 16 March 2007
General Civil Appeal — where parties entered a contract for the plaintiff to construct a building on the defendant’s land — where compromise was entered and subsequently avoided — where defendant contends for reversion to original contract — where plaintiff contends that a variation occurred before the compromise and that the contract as varied should govern rights and responsibilities — whether trial judge’s finding on this issue created an issue estoppel — where plaintiff’s pleading alleged duress, illegitimate pressure and unconscionable conduct arising out of the same facts — nature of unconscionable conduct — confusion between unconscionable conduct and illegitimate pressure — where cause of action lies in deceit or duress — whether references to illegitimate pressure and unconscionable conduct should be struck out — HELD: appeal dismissed — plaintiff to pay the defendant’s costs of the appeal to be assessed on the standard basis.
Chew & Singh v Commissioner of Land Tax [2007] QCA 78; Appeal No 9049 of 2006. 16 March 2007
Appeal from the Land Appeal Court — where appellants liable for land tax pursuant to amended notices of assessment — where appellants’ appeal to the Land Court was dismissed in their absence — whether the appellants were denied natural justice by this dismissal — whether failure to receive notice of determination of unimproved value invalidates an assessment of land tax based on those valuations — consequences of an uncompleted contract of sale as at 30 June — HELD: leave to appeal granted — appeal dismissed with costs.
Swan v Qld Community Corrections Board [2007] QCA 80; Appeal No 10491 of 2006, 16 March 2007
General Civil Appeal — where appellant’s parole was suspended and later cancelled by a decision of the Queensland Community Corrections Board — where this was done on the basis of breach of conditions of his parole — where appellant applied for judicial review of these decisions — where trial judge dismissed application — where appellant given notice of suspension — where appellant invited to show cause by written submissions why the board should change its mind — where board’s decision upheld — whether decision of the board cancelling parole involved a breach of natural justice — whether conditions of parole were unnecessary or an improper use of power — HELD: appeal dismissed with costs to be assessed.
Clement v Backo & Suncorp Metway Insurance Ltd [2007] QCA 81; Appeal No 4282 of 2006, 16 March 2007
General Civil Appeal — the respondent maintained a timber plantation prior to injury, which he could not maintain after the accident — where his wife and hired-hand tended to the plantation — where size of the plantation significantly increased post-accident — where trial judge found in respondent’s favour — whether costs of the services of his wife were compensable as gratuitous services under s 59 Civil Liability Act 2003 (Qld) by an extension of the rule in Griffiths v Kerkemeyer — HELD: appeal dismissed with costs.
Wright & Wrights v Rare Import Export Co P/L & Anor [2007] QCA 89; Appeal No 9031 of 2006, 23 March 2007
General Civil Appeal — the respondent purchased a health products business from the first appellant — where appellant made representations about the business to the respondent — where trial judge found that these were representations for purposes of s 52 Trade Practices Act — whether the representations were misleading and went to the current position of the business or future matters — whether the appellants relied on the representations — whether the evidence established accessorial liability of the second appellant — whether court should entertain a point on appeal not litigated below — HELD: appeal dismissed with costs.
Stubberfield v Lippiatt & Anor [2007] QCA 90; Appeal No 9320 of 2006, 23 March 2007
General Civil Appeal — the appellant appealed against an order staying proceedings against his former solicitors — where appellant claimed damages and other relief for breaches of duty, trust and defamation — where matter previously litigated — where no reasonable explanation for failure to raise issues in the original proceedings — whether claim precluded by res judicata, Anshun estoppel or absence of arguable case — HELD: appeal dismissed with costs.
Rapid Roofing P/L & Ors v Natalise P/L & Ors [2007] QCA 94; Appeal No 8388 of 2006, 23 March 2007
General Civil Appeal — the second plaintiffs and second defendants entered a partnership agreement which involved shipping items belonging to the plaintiffs from the Seychelles — an agreement was entered with respect to the price to be paid by the defendants to secure an interest in the relevant items to become partnership property — where the plaintiff made certain representations about the value of the machinery in question — whether such statements were contrary to s 52 TPA — whether relief should be granted under s 82 or s 87 TPA — the machinery was shipped in two containers and mixed with items belonging personally to the plaintiffs — moneys were advanced by the defendants to the plaintiffs for the purchase of a Hope Island property in the plaintiffs’ own name — the loan was secured by a mortgage over the property — where mortgage to be discharged upon delivery of the relevant machinery, with interest in machinery to be repayment of loan — where machinery was delivered late and was not insured — whether the plaintiffs were in breach of contract — whether plaintiffs entitled to a discharge of mortgage — where defendants paid $9000 of port charges to clearing agent upon arrival of containers — where defendants subsequently repented of the partnership arrangement — where defendants refused to return personal property in containers unless plaintiffs paid port charges — whether plaintiffs were entitled to damages for conversion — HELD: (1) Appeal allowed, with following orders made: (a) set aside declarations and orders made below; (b) set aside dismissal of counter-claim; (c) contract of sale avoided from 31 October 2001, and first plaintiff to repay first defendant the sum of $151,295 and defendants to release to the plaintiffs all machinery and property noted in the bills of lading; (d) interest payable from 31 October 2001 on $151,295 at 7% p.a; (e) costs order set aside, with plaintiffs to pay 75% of defendants costs of trial; (2) Plaintiff to pay defendants’ costs of the appeal.
A-G (Qld) v Beattie [2007] QCA 96; Appeal No 9990 of 2006, 30 March 2007
General Civil Appeal — where appellant imprisoned since 1996 for sexual offences against young boys — where A-G instituted proceedings against the appellant under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) — where appellant was due for release in November 2006 unless order made under the Act — where primary judge ordered the indefinite detention of the appellant pursuant to s 13(5)(a) of the Act — whether decision to make detention order was supported by adequate reasons — whether supervision order could have provided adequate protection to the community — HELD: appeal dismissed.
Bellmere Park P/L as trustee for the Bellmere Park Development Trust v Cameron Samuel Benson (as personal representative of the estate of Eric Gordon Benson) [2007] QCA 102
General Civil Appeal — where contract entered between appellant vendor and respondent purchaser for sale and purchase of land — where contract contained condition for due diligence procedure — where condition provided for an assessment of ‘viability’ — whether condition void for uncertainty — whether condition to be satisfied as a matter of subjective or objective fact — whether contract was illusory in nature — whether condition was for the benefit of both parties and thus capable of being waived by the respondent — whether costs on an indemnity basis should have been awarded — HELD: order for costs on a standard basis substituted for the indemnity costs order made on 2 February 2007 — appeal otherwise dismissed with costs.
CRIMINAL APPEALS
R v Parker [2007] QCA 22; CA No 298 of 2006, 5 February 2007
Sentence application — the applicant misappropriated monies from her employer in a fraudulent manner over a period of time — the monies were used to fund a gambling addiction — the applicant pleaded guilty to six counts of fraud, two counts of stealing as a servant, one count of dishonest application of a computer and one count of using a computer with intent to commit and indictable offence — a single sentence of five years suspended after 21 months with an operational period of five years was imposed for all counts — the applicant has not made restitution — whether the trial judge erred in imposing a singe sentence for all counts — whether sentence manifestly excessive in all the circumstances — HELD: sentence imposed set aside; leave to appeal granted; appeal against sentence allowed; sentence of five years suspended after 21 months with operational period of five years imposed for count 3, with lesser sentences imposed for other counts.
R v Watt [2007] QCA 23; CA No 290 of 2006, 5 February 2007
Application for Extension (Sentence & Conviction) — the applicant was convicted by a jury for dangerous operation of a motor vehicle — sentence of nine months imprisonment to be served by an intensive correction order imposed — applicant disqualified from holding a license for three years — where applicant’s back injury prevented applicant from being able to complete intensive correction order — the initial sentence was revoked and a wholly suspended sentence of six months with operational period of 18 months imposed instead — the applicant was convicted during the initial operational period — as a result, the operational period was extended for a further 12 months — where applicant seeks an extension of time to appeal against both conviction and leave to appeal against sentence — whether any satisfactory explanation for lengthy delay — whether any reasonable prospects of success — HELD: application for extension of time dismissed.
R v Saltmarsh [2007] QCA 25; CA No 267 of 2006, 6 February 2007
Sentence Application — the applicant pleaded guilty to a charge of dangerous operation of a motor vehicle causing grievous bodily harm while adversely affected by alcohol — applicant has prior record of traffic offences — applicant suffered from addiction to alcohol — applicant drove from scene after the incident — where applicant shows remorse and has attended rehabilitation — where a sentence of four years and nine months was imposed, suspended after 21 months for an operational period of five years — seven years licence disqualification also imposed — where need for such sentences to have deterrent effect — whether sentence manifestly excessive — HELD: application for leave refused.
R v Mooka [2007] QCA 36; CA 341 of 2006, 9 February 2007
Sentence Application — the applicant pleaded guilty to manslaughter and other offences — the applicant, whilst grossly intoxicated, struck the deceased with a pool cue in an unprovoked, gratuitous attack — the applicant had a bad criminal record — where he was sentenced to ten years imprisonment and deemed a serious violent offender —— whether sentence imposed was manifestly excessive — HELD: application refused.
R v Nudd [2007] QCA 40; CA No 287 of 2006, 15 February 2007
Application for Extension (Conviction) — the applicant seeks an extension of time in which to appeal — where an appeal on the merits has previously been determined by this Court and the High Court — the applicant wishes to appeal on different grounds, namely that his conviction did not conform to requirements of Ch III of the Constitution — whether the court has jurisdiction to entertain another appeal — whether the statutory right of appeal, once exhausted, can be re-agitated — HELD: application for extension of time within which to appeal dismissed.
R v UA [2007] QCA 41; CA No 221 of 2006, 16 February 2007
Appeal against Conviction & Sentence — where the appellant was convicted of two counts of indecent dealing with a child under 12 years and one count of permitting self to be indecently dealt with by the same child — the complainant was, and with the knowledge of the appellant, his lienal descendant — a sentence of two and a half years imprisonment was imposed on each count, to be served concurrently — where the appellant contended that the jury placed undue weight on the evidence given by the complainant under s 21AK and s 93A Evidence Act 1977 (Qld) — where the appellant submits that the complainant’s evidence was vague and inconsistent — where this was apparent to the jury — whether the conviction was unjust and contrary to law — whether sentence manifestly excessive — HELD: appeal against conviction dismissed; application for leave to appeal against sentence refused.
R v Searle [2007] QCA 42; CA No 209 of 2006, 16 February 2007
Appeal against Conviction & Sentence — the appellant was convicted on one count of trafficking in a dangerous drug, one count of possessing a thing used on connection with trafficking and three counts of unlawful possession of a dangerous drug — a sentence of three years imprisonment suspended after 18 months with an operational period of three years for trafficking was imposed, with lesser concurrent sentences for other offences — the principal witness for the crown was the appellant’s co-offender —the co-offender obtained the benefit of a reduced sentence under s 13A — where the appellant claimed the evidence of the co-offender was fabricated — the appellant did not give evidence at trial on the advice of counsel — where allowances in sentencing were made for youth and lack of criminal history — whether the verdict of the jury was unreasonable or could not be supported having regard to the evidence or was unsafe or unsatisfactory — whether the sentence was manifestly excessive — HELD: appeal against conviction dismissed; application for leave to appeal against sentence struck out.
R v Eaton [2007] QCA 43; CA No 317 of 2006, 16 February 2007
Sentence Application — the applicant pleaded guilty to two counts of supplying a dangerous drug — she was sentenced to two and a half years imprisonment with parole after eight months — where the supply involved 200 ecstasy tablets — where the applicant was on probation for other offences at the time of sentencing — whether the sentence was manifestly excessive — HELD: application for leave to appeal dismissed.
R v Hatten [2007] QCA 46; CA No 43 of 2006, 23 February 2007
Sentence Application — the applicant assaulted and stabbed a women — he pled guilty to attempted murder — he had prior convictions for rape and assault — the trial judge determined that the applicant was a serious danger to the community — an indefinite sentence, with a nominal sentence of 15 years, was imposed — where medical evidence was not adduced as to the risk he applicant would pose at the end of an extended period of imprisonment — whether the trial judge failed to have regard to the protective effect on a nominal sentence in considering the risk to the community and imposing an indefinite sentence — HELD: leave to appeal against sentence granted; appeal allowed and sentence set aside; matter remitted to Trial Division of Supreme Court for a hearing de novo of the sentence to be imposed.
R v Mules [2007] QCA 47; CA No 297 of 2006, 23 February 2007
Sentence Application — the applicant pled guilty to one count of attempted armed robbery with personal violence and one count of robbery with personal violence — a sentence of three years and four months was imposed with a recommendation for parole eligibility after 12 months — the applicant’s co-accused was sentenced to three years imprisonment with parole after seven months — the applicant has a criminal history — the co-accused has a more extensive criminal history — where the applicant was the primary offender — where the applicant had a dysfunctional childhood, is young, has responsibility for the care of two children, has cooperated and showed remorse — where the applicant shows promising prospects of rehabilitation — whether the sentence was manifestly excessive in the circumstances — HELD: application for leave to appeal against sentence granted, appeal allowed, sentence of imprisonment of three years with parole fixed after nine months imposed.
R v Barry [2007] QCA 48; CA No 2 of 2007, 23 February 2007
Sentence Application — the applicant was indicted on three counts of assaulting a police officer — she pled guilty to one, the remaining charges being subject to a nolle prosequi — the applicant was sentenced on 21 December 2006 to six months imprisonment with a parole release date of 19 January 2007 — the assault in question involved spitting and biting and verbal abuse after the police had tried to remove the intoxicated applicant from the rear of a taxi — where the applicant had a prior conviction for assaulting a police officer — where the applicant failed to show remorse — where the applicant was the sole carer of her child — where the applicant was suffering depression and had been subject to physical and sexual abuse — whether the sentence was manifestly excessive — HELD: application for leave to appeal against sentence dismissed.
Courtney v Thomson [2007] QCA 49; CA No 278 of 2006, 23 February 2007
Application for Leave s 118 DCA (Criminal) — the applicant was protesting by a busy road — the applicant was convicted for three offences in the Magistrates Court: committing a public nuisance, physically possessing a knife in a public place without reasonable excuse, and obstructing a police officer in the performance of his duty — the appeal to the District Court resulted in the public nuisance charge being quashed as a result of the charge not being properly particularised — where the applicant contends that as a result of the ‘unlawfulness’ of his arrest for public nuisance, the other charges must also fail — whether the other convictions should be upheld — HELD: leave to appeal granted with respect to obstruction offence, appeal allowed and conviction on that charge quashed and penalty for that charge set aside.
Kobylski v Queensland Police Service [2007] QCA 50; CA No 302 of 2006, 23 February 2007
Application for Extension of Time s 118 DCA (Criminal) — the applicant was convicted for a number of driving and related offences — the applicant unsuccessfully appealed to the District Court — whether there is a satisfactory explanation for delay — whether the interests of justice require the granting of the application — HELD: application refused.
R v Exposito [2007] QCA 53; CA No 201 of 2006, 2 March 2007
Appeal against Conviction — where appellant convicted of murder — where appellant did not give evidence at trial — where appellant alleges that his counsel at first instance deprived him the opportunity to give evidence and left out important elements of his defence — whether any miscarriage of justice resulted from counsel’s conduct — whether the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence — HELD: appeal dismissed.
R v Golledge [2007] QCA 54; CA No 262 of 2006, 2 March 2007
Appeal against Conviction — the appellant was convicted of murder and a number of lesser offences — where visual and audio identification evidence was admitted by the trial judge — where trial judge gave a comprehensive and detailed warning about the use of identification evidence — whether a reasonable jury could be satisfied beyond reasonable doubt that the appellant was guilty — whether the judge erred in allowing the identification evidence to be admitted — whether the trial judge erred in not discharging the jury — whether the verdict was unsafe and unsatisfactory — HELD: appeal dismissed.
R v Christensen [2007] QCA 56; CA No 304 of 2006, 2 March 2007
Sentence Application and Miscellaneous Application — the applicant pleaded guilty to a number of drug related offences and was sentenced to 10 years imprisonment — where applicant unsuccessfully applied for leave to appeal against that sentence in 2002 — where learned trial judge, in 2006, heard and dismissed an application brought under s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) to re-open his sentence — whether the judge erred in not allowing the appellant to re-open his sentence — HELD: applications refused.
R v Proesser [2007] QCA 61; CA No 19 of 2007, 5 March 2007
Sentence Application — the applicant pleaded guilty to a charge of dangerous operation of a motor vehicle causing grievous bodily harm — where applicant sentenced to 18 months imprisonment, suspended after three months, with an operational period of 18 months — where case was characterised as one of momentary inattention — where sentencing judge considered the importance of deterrence in imposing a period of actual custody — whether the sentence was manifestly excessive — HELD: application allowed — appeal allowed — sentence immediately suspended.
R v LU [2007] QCA 62; CA No 334 of 2006, 7 March 2007
Sentence Application — the applicant pleaded guilty to one count of unlawful and indecent assault and one count of unlawful assault occasioning bodily harm — where applicant sentenced to six years imprisonment for each offence, to be served concurrently, with a parole eligibility date of 8 November 2008 — where the complainant was the applicant’s 16 year old stepdaughter — where other cases suggested a range for indecent assault cases of 12 to 18 months — where the complainant was sleeping and awoke during the commission of the offence — where case involved aggravating features indicating a degree of pre-meditation and a plan to overcome resistance — where conduct had significant financial and psychological consequences for the complainant and her family — HELD: application allowed — appeal allowed — sentence imposed set aside — order in lieu that the appellant be sentenced to three and a half years imprisonment with a parole eligibility of 8 January 2008.
R v Slivo [2007] QCA 64; CA No 344 of 2006, 9 March 2007
Sentence Application — the applicant pleaded guilty to trafficking in Schedule 1 and 2 dangerous drugs under the Drugs Misuse Act 1986 (Qld) — where applicant sentenced to 13 years imprisonment — where applicant contends that the sentence was manifestly excessive — whether the sentencing judge gave insufficient weight to a plea of guilty — whether receiving the same sentence as co-accused gives rise to a “justifiable sense of grievance” — HELD: application refused.
R v Rollason & Jenkins; ex parte A-G (Qld) [2007] QCA 65; CA Nos 14 and 15 of 2007, 9 March 2007
Reference under s 668A Criminal Code — the accused persons made application for disclosure of affidavits relied on by the prosecution to secure telephone intercept warrants — where trial judge ordered disclosure pursuant to s 590AH(2)(c)(i)(A), s 590AJ(2)(e) and s 590AJ(2)(f) Criminal Code 1899 (Qld) — whether trial judge proceeded on a proper construction of these provisions — two question were referred to the Court: (1) whether the affidavits of a federal agent were statements of a witness for purpose of s 590AH(2)(c)(i)(A); and (2) whether the trial judge correctly applied the test to determine whether the said affidavits were relevant to the proceeding for the purpose of s 590AJ(2)(e) & (f) — HELD: both question answered in the affirmative.
R v DAN [2007] QCA 66; CA No 174 of 2006, 9 March 2007
Appeal against Conviction — the appellant was convicted of murder — where case against him was solely circumstantial — where trial judge failed to give specific directions about crucial pieces of evidence and the use that could be made of such evidence — where the circumstances of the case required the judge in summing up to present competing case theories with relevant evidence — where the hypothesis of death by natural causes had to be excluded beyond reasonable doubt — where the jury had to be satisfied on the evidence of an intention to cause death or grievous bodily harm — whether there was a miscarriage of justice — whether a new trial should ensue — HELD: appeal allowed — new trial ordered.
R v Temple [2007] QCA 67; CA No 318 of 2006, 9 March 2007
Appeal against Conviction — the appellant was charged with six counts of arson — where the six fires appeared to be related — where case against the appellant was circumstantial — where jury convicted the appellant on count six but acquitted on counts one to five — whether the verdict of guilty on count six was unreasonable given the acquittals on counts one to five — whether the finding of the jury should be interfered with — HELD: appeal dismissed.
R v Atkinson [2007] QCA 68; CA No 326 of 2006, 9 March 2007
Application for Extension (Conviction) — where applicant convicted of indecent dealing with a child under 16 and under his care — where sentence of six months imprisonment imposed — where applicant served sentence before application lodged — where applicant claims he was not advised by his barrister or other legal advisers of the 28 day time limit for lodging an appeal — whether there was a good reason for delay — whether appeal would have good prospects of success — whether interests of justice require granting an extension — HELD: application refused.
R v Lammonde [2007] QCA 75; CA No 320 of 2006, 5 March 2007
Sentence Application — where applicant was convicted on her own plea of guilty of trafficking in cannabis and other drug offences — where sentence of six years imprisonment with parole eligibility after two years and six months imposed for trafficking — where no punishment imposed for other offences — where trial judge considered her plea of guilty, her remorse and her being the mother of a large family — where trial judge did not avert to the dealing being for the purpose of supporting her family — where applicant had honest employment available — whether head sentence manifestly excessive — whether the parole eligibility date properly reflects the applicant’s mitigating personal circumstances — HELD: application for leave granted — appeal allowed — sentence varied by fixing parole eligibility date of 30 April 2008.
R v Johnson; ex parte A-G (Qld); R v Johnson; ex parte A-G (Qld); R v Ward; ex parte A-G (Qld); R v Ward [2007] QCA 76; CA Nos 180, 263, 264 and 265 of 2006, 16 March 2007
Appeal against Conviction and Sentence Application by A-G (Qld) — Joseph Ward, Clinton Johnson and Clayton Johnson were convicted of manslaughter — where Clayton Johnson was sentenced to six years imprisonment, Clinton Johnson sentenced to four years imprisonment and Ward sentenced to four and a half years imprisonment — where concurrent lesser sentences imposed on each for aggravated assault — where A-G appealed against sentences — where Ward appealed against his conviction — where deceased died due to injuries sustained as a result from a fall following a blow from Clayton Johnson — where cases against Clinton Johnson and Ward were left under s 7(1)(c) and s 8 Criminal Code — where proper application of these provisions considered — whether Judge’s directions regarding presence, aiding and encouragement were adequate — whether Ward’s verdict could be supported on the basis of s 7(1)(c) — where judge made allowance for cooperation — where respondents were young and of previous good character — whether sentences imposed were manifestly inadequate — HELD: appeal against conviction dismissed — A-G appeal against sentences of Ward and Clinton Johnson dismissed — A-G appeal against sentence of Clayton Johnson allowed — sentence imposed on Clayton Johnson with respect to manslaughter set aside, and in lieu, Clayton Johnson sentenced to seven years imprisonment.
R v Donnelly and Corbic [2007] QCA 77; CA Nos 207 and 219 of 2006, 16 March 2007
Sentence Application — where applicants pleaded guilty to various drug supply and trafficking charges — where head sentence of eight years was imposed with bail after two years and eight months — where applicants, whilst on bail for three and a half years, did not re-offended — where applicants cooperated and showed remorse — whether head sentence excessive — whether parole recommendation inadequate — whether substantial trafficking had occurred — HELD: applications for leave to appeal and the appeals allowed — sentences in respect of Count 1 set aside and sentences of six years substituted — sentences varied such that the applicants’ parole eligibility dates fixed at 11 July 2008.
R v Raymond [2007] QCA 91; CA No 285 of 2006, 23 March 2007
Appeal against Conviction & Sentence — where appellant convicted of armed robbery with personal violence and unlawful use of a motor vehicle — where complainant identified the appellant by his voice — where complainant’s native tongue was Thai — where English was complainant’s second language — where appellant contends that language history could affect identification evidence — whether verdict was unsafe and unsatisfactory — whether jury properly directed on identification evidence — HELD: appeal dismissed.
R v AAA [2007] QCA 92; CA No 319 of 2006, 23 March 2007
Appeal against Conviction — where appellant charged with various sexual offences against his stepdaughter — where jury convicted appellant on some counts but acquitted on others — where there was a delay in the making of a complaint and a Longman direction was given — where there was some conflicting evidence — where jury decided issues of credit — whether verdicts were inconsistent or unreasonable — HELD: appeal dismissed.
R v Saunders [2007] QCA 93; CA No 4 of 2007, 23 March 2007-03-27
Sentence Application — where applicant convicted of various drug related offences — where applicant sentenced to eight years imprisonment with a serious violent offence declaration for trafficking in 3,4-methylenedioxyethamphetamine, with lesser concurrent sentences for other offences — where offences committed during operational period of another sentence — whether trial judge properly took into account the principle of parity of sentencing — whether sentence was manifestly excessive — whether declaration was properly made — whether a declaration of pre-sentence custody should have been made — HELD: application and appeal in respect of count 1 allowed — serious violent offence declaration set aside and a term of imprisonment of 8 years reimposed, to be served concurrently with all other sentences being served by the applicant, with a parole release date of 25 March 2013.
R v FP [2007] QCA 97; CA No 336 of 2006, 14 March 2007, 30 March 2007
Appeal against Conviction — where appellant convicted for unlawfully and indecently dealing with a child under the age of 12 — where complainant was the appellant’s niece — where complainant gave evidence by a video-taped interview with police with cross-examination later recorded and put before the jury — where trial judge failed to direct the jury on preliminary complaint evidence — where appellant contends that hearsay evidence wrongly admitted — whether miscarriage of justice — HELD: conviction set aside — re-trial ordered.
Parsons v Raby [2007] QCA 98; CA No 346 of 2006, 30 March 2007
Application for Leave s 118 DCA (Criminal) — where applicant convicted in the Magistrates Court of public nuisance — where applicant participated in two fights in a public car park — where magistrate failed in his ex tempore decision to explain why the applicant was acting unlawfully — where magistrate imposed conviction for a fight occurring at a time when the appellant was lawfully defending himself — whether there was sufficient evidence to sustain the Magistrate’s findings about the fight — whether District Court judge conducted a proper re-hearing and adequately examined the evidence before him — HELD: application allowed — appeal allowed — conviction for public nuisance quashed — respondent pay the appellant’s costs of the appeal to this Court and to the District Court.
R v Robinson [2007] QCA 99; CA No 301 of 2006, 30 March 2007
Appeal against Conviction & Sentence — the appellant was convicted for two counts of rape and one count of maintaining a sexual relationship with a child under 16 — where appellant sentenced to life imprisonment — where audio recordings were admitted into evidence — where jury provided with transcripts of audio recording — whether sufficient warning was given in relation to voice identification — whether jury should have been provided with a transcript — whether appropriate direction given to jury as to the use which they could make of the appellant’s evidence — where trial judge concluded that the appellant was likely to commit further offences — whether sentence manifestly excessive — HELD: appeal against conviction dismissed — leave to appeal against sentence granted and appeal allowed — sentences of life imprisonment set aside and appellant instead sentenced to 18 years imprisonment in respect of each offence, to be served concurrently.
R v Cook; ex parte A-G (Qld) [2007] QCA 100; CA No 5 of 2007
Appeal against Sentence by A-G (Qld) — where respondent convicted of dangerous operation of a motor vehicle causing death whilst adversely affected by alcohol — where respondent sentenced to five years imprisonment with eligibility for parole after two years and was disqualified from holding a driver’s licence for five years — where A-G contends sentence fails to adequately reflect the gravity of the offence, fails to adequately consider the aspect of general deterrence and that the sentencing judge gave too much weight to mitigating factors — whether sentence manifestly inadequate — HELD: appeal dismissed.
R v OM [2007] QCA 101; CA No 222 of 2006, 30 March 2007
Sentence Application — where applicant pleaded guilty to three counts of rape, one count of attempted rape, two counts of procuring and one count of indecent treatment — where applicant sentenced to eight years imprisonment with a recommendation for parole after three years — where the victim was the applicant’s daughter — where applicant procured her daughter for sex with the applicant’s boyfriend — where sentencing judge noted the offences involved a “prolonged and significant repetitive gross breach of trust” — where applicant contends greater weight should have been given to her low self-esteem and insecurity — where applicant contends inability to act independently of boyfriend’s control — whether sentence adequately discounted under s 13A Penalties and Sentences Act 1992 (Qld) — whether personal circumstances sufficiently taken into account — whether sentencing judge erred in imposing a single sentence for all counts — HELD: application for leave to appeal granted — appeal allowed — sentences imposed below set aside — eights years imprisonment imposed for each count of rape, with lesser concurrent sentences for other counts, with eligibility for parole after three years.
R v GY [2007] QCA 103; CA No 321 of 2006, 30 March 2007
Appeal against Conviction & Sentence — where appellant convicted of maintaining a sexual relationship with a child under 16 years who was in his care and four counts of indecent treatment of a child under 16 years who was in his care — where sentence of four years imprisonment imposed for the maintaining offence with lesser concurrent sentences for the other offences — where appellant acquitted on other indecent dealing charges — where appellant alleges counsel failed to tender evidence according to his instructions — where appellant contends that the trial judge’s directions on maintaining were inadequate and wrong — whether there was a miscarriage of justice — whether the sentence was manifestly excessive — HELD: appeal against conviction dismissed — application for leave to appeal against sentence refused.
R v Wickson [2007] QCA 104; CA No 314 of 2006, 30 March 2007
Appeal against conviction — where appellant convicted after trial of six counts of indecent dealing with a boy under 16 years and one count of indecent dealing with a boy under 14 years — where appellant sentenced to concurrent terms of imprisonment totalling four years — where trial judge admitted similar fact evidence of three complainants — where no suggestion at trial of any current connection between the complainants — where direction issued to jury that they must be satisfied of the truth of each account — whether trial judge was required to give a specific warning regarding the risk of concoction — HELD: appeal dismissed.
R v Fischer [2007] QCA 105; CA No 215 of 2006, 30 March 2007
Appeal against Conviction & Sentence — where appellant convicted of various drug related offences including production and trafficking of schedule 2 drugs — where appellant appeals on various grounds — where trial judge admitted evidence of a rifle, ammunition and erection of fence — whether this evidence had probative value — whether admission of this evidence had prejudicial consequences resulting in a miscarriage of justice — where trial judge gave general direction about propensity evidence — where trial judge failed to give specific warning about the danger of propensity reasoning with respect to the rifle, ammunition and fence — whether failure to give a specific warning amounted to an error of law in the circumstances — where trial judge ruled that there was a case to answer on count 2 (producing methylamphetamine) — where trial judge directed the jury they could convict if satisfied that the appellant directed others to use the equipment to produce the drugs — where jury could be said understand that the case against the appellant was that he personally manufactured the drug — where defence case was that production was by persons “unknown or unbeknownst” — whether the trial judge erred in leaving the case on count 2 to the jury — whether the trial judge gave adequate re-directions about appellant’s failure to put forward names — whether this direction resulted in a miscarriage of justice — where prosecution case on some counts turned on the jury accepting informants’ evidence — whether prosecutor’s submissions with respect to this evidence was unfair — whether judge have adequate directions with respect to use of informant’s evidence — whether trial judge gave adequate directions about the prosecutor’s closing address — whether prosecutor’s closing address caused a miscarriage of justice — where appellant unsuccessful on all grounds of appeal against conviction — whether, if successful, the case should in any event be dismissed under s 668E Criminal Code being absence of any substantial miscarriage of justice — where appellant automatically sentenced to 10 years imprisonment on count 1, invoked under s 161B Penalties and Sentences Act — where regard had to the need to place witnesses in protection program — where membership in Rebels Motorcycle Club and fortification of the appellant’s property considered in sentencing — whether personal mitigating circumstances properly considered — whether sentence within appropriate range — HELD: appeal against conviction dismissed — application for leave to appeal against sentence refused.
CEO of Customs v Powell [2007] QCA 106; CA No 210 of 2006, 30 March 2007
Application for leave s 118 DCA (Criminal) — the respondent was convicted for importing a prohibited import (a breech bolt) contrary to s 233(1)(b) Customs Act 1901 (Cth) — where Magistrate reserved his decision for almost three months — where reasons when delivered only comprised 15 lines of transcript — where breech bolt capable of inclusion within two items of Schedule 6 Customs Act, but only prohibited with respect to one — whether District Court judge erred in finding that the breech bolt was not a prohibited import because it fell within both items — whether the District Court judge erred in determining that the magistrate’s reasons were so inadequate as to amount to an error of law — whether the learned District Court judge erred in finding that because of s 247 Customs Act that the proceedings were wrongly brought by way of complaint and summons under the Justices Act 1886 (Qld) — whether proceedings ought to have been brought by claim under the Uniform Civil Procedure Rules 1999 (Qld) — HELD: application for leave to appeal granted — appeal allowed — orders of District Court set aside — appeal to District Court dismissed.
