Recent Cases

The approach of the Queensland Court of Appeal to the sentencing of Commonwealth offenders over the last 12 months has not been easy to follow.

Case 1: Robertson

In R v Robertson [2008] QCA 164 the Court of Appeal considered an appeal against sentence by an applicant who had received (over a 26 year period) Commonwealth benefits totalling $121,000.00 in excess of her entitlements.  She was sentenced at first instance to 3 years’ imprisonment, to be released on a recognisance after 15 months.  On appeal, her representatives submitted that she had not obtained the “usual allowance of one third”.  (The initial release date that was ordered equated to 42% of the head sentence). 

The Commonwealth DPP submitted that “the norm for non-parole periods is in the range of about 60 percent to two-thirds of the head sentence, although subject to judicial discretion”, pointing to interstate decisions in support of that contention.  Such a submission, had it been successful, would have had significant consequences for Robertson, in that she would have been required to serve in the region of 2 years of her 3 year head sentence, rather than the 15 months ordered. 

The Court of Appeal did not accept the Crown’s position.  Fraser JA (at [10]) noted that:

His Honour went on to say (at [18]) that:

Daubney J specifically noted (at [43]) that he agreed with everything said by Fraser JA.

Ultimately, whilst rejecting any notion that the “usual” factors in mitigation entitled the applicant to be released at the one-third mark, the court ultimately amended the original sentence with the effect that Ms Robertson would become eligible for release  after serving 12 months of her 3 year term.

Case 2: Cak and Cal

An entirely different approach was taken by the Court in February this year in the case of R v Cak and Cal; ex parte Commonwealth DPP [2009] QCA 23.  That case involved a Commonwealth appeal against a sentence of 3 years with release after 4 months for two offenders who pleaded guilty to two counts of dishonestly obtaining a financial advantage by deception. 

In the Court’s judgment, Atkinson J relied upon various interstate authorities to conclude (at [18]) that:

Her Honour indicated that, given the mitigating features in the present case, a release date towards the lower end of that range, i.e. about 60% of the head sentence, would be appropriate.1  The sentence was then further reduced to reflect some other unusual features of the case, but it is clear that Her Honour’s view was that 60 to 66% was the appropriate non-parole period range.  Importantly, in making this statement, no distinction was drawn between different classes of Commonwealth offences; rather it was suggested that the 60 to 66% range is the norm for Commonwealth offences generally.  His Honour Justice Lyons agreed with the reasons of Atkinson J in that regard.

Case 3: Mokoena

One week later, on 27 February this year, a differently constituted Court of Appeal considered R v Mokoena [2009] QCA 36 and provided a different analysis again.  The case involved the importation of heroin, for which the applicant was sentenced at first instance to 9 years jail with a non-parole period of 4 years and 9 months (i.e. about 53% of the head sentence).

In this case Holmes JA observed (at [8]) :

Footnotes

1. Indeed, that calculation produced a result in excess of what the Crown had sought at first instance.
2. Section 184 of the Corrective Services Act 2006 (Qld) provides for parole eligibility at the half-way point for certain prisoners, including those sentenced to more than 3 years imprisonment.
3. Under ss19AB-AC Crimes Act 1914 (Cth), it is only sentences involving a custodial term exceeding 3 years that may involve a non-parole period — lesser terms involve release by way of recognisance.
4. This raises an interesting argument about whether a judge sentencing a Commonwealth offender should take into account the fact that a Queensland offence, equally or more applicable to the conduct in question, should have been preferred.  In this regard, see Liang & Li 82 A Crim R 39.
5. See for example the recent comments of Howell DCJ in R v Panchal and Ors. [2009] QDC 105.

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Issue

The issue came to a head when Apotex Pty Ltd (Apotex), whom Servier alleged had infringed the patent, served a notice to produce on Servier seeking certain documents recording or referring to the lawyer’s views as expressed in his evidence in support of the application as well as the instructions from Servier. The basis for this request was that the supporting evidence referred to the identification by the solicitor of a gap in the patent’s claims, that being the subject matter of the application to amend. An example from his evidence was as follows:

Apotex contended that Servier had by its reliance on this evidence as the basis of it seeking the amendment, waived its privilege over the documents it now sought to claim.

Decision

Servier was required to produce certain documents which provided the background for the amendments sought, which would otherwise have been privileged.

Reasons

Before considering a number of other cases as examples, Bennett J stated the common law principle that a person who was entitled to claim legal professional privilege could waive that privilege. Waiver could be express or implied and was a matter for objective consideration regardless of the intention of the party who has lost the privilege (Mann v Carnell (1999) 201 CLR 1 at [29]).

Of telling relevance was an examination of whether there was an inconsistency between the conduct of the client and maintenance of the confidentiality of the relevant communications (Mann v Carnell at [28]).

Its application to the case was that her Honour considered that it was inconsistent for Servier to claim legal professional privilege with respect to the communications between Servier and their solicitor concerning the solicitor’s opinion, their instructions, the application for amendment and Servier’s reasons for making it, having disclosed the legal advice they were given by presenting that advice as the totality of its reasons for seeking amendment: [19].

Her Honour noted that Section 118 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) established privilege in relation to the provision of legal advice to a client.  Section 122 of the Evidence Act set out the circumstances in which this client legal privilege may be lost.

Bennett J observed that the Evidence Act applied to the adducing of evidence in proceedings to which the Evidence Act was applicable.  It did not however apply to pre-trial processes such as discovery or to the production of documents prior to the adducing of evidence (Mann; Esso Australia Resources Limited v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49).

As the documents sought in the notice to produce were for the purpose of inspection and not for being immediately adduced in evidence, the Evidence Act had no application to the production of documents pursuant to the notice to produce:  [27]

Her Honour noted that there was some uncertainty as to whether Order 33 rule 11 of the Federal Court Rules introduced the Evidence Act into pre-trial processes of the Court. Bennett J referred to the full court decision in Seven Network Ltd v News Ltd (2005) 144 FCR 379 at [17], where court held that O 33 r 11 of the Federal Court Rules did not so operate, concluding that the rule was limited to cases where the order to produce would result in immediately adducible evidence: ‘circumstances in which an order is made for production of a document or thing to the Court … at a time when the Court … is authorised to receive evidence.  That is, in circumstances in which the order to produce the document or thing is made to facilitate its being immediately adduced in evidence’.

Apotex Pty Ltd (ACN 096 916 148) v Les Laboratoires Servier [2008] FCA 1466 (Bennett  J, 30 September 2008)

Dimitrios Eliades

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CIVIL APPEALS

Moffatt Property Development Group P/L v Hebron Park P/L [2009] QCA 060 McMurdo P Keane JA Atkinson J 20/03/2009

General Civil Appeal from the Supreme Court, Trial Division — The appellant (Hebron) is the registered proprietor of 20 acres of rural residential land on the Sunshine Coast — The respondent is a property developer (Moffatt) — Negotiations for the sale of the land commenced between the parties — Further negotiation elicited counter-offers from Hebron — A director of Moffatt sent a letter dated 8 April 2008 with the words “unconditional offer” containing the ACN of Moffatt was sent to a Mr Muldrew (a real estate agent) — The letter was subsequently signed by a Mrs Edwards (the sole director of Hebron) on behalf of Hebron on 9 April — At trial the learned judge determined the dispute in Moffatt’s favour and declared that the letter dated 8 April 2008 and signed by both parties constituted a valid and binding agreement with respect to the sale of the land to Moffatt — On Appeal — The difficulty with the argument advanced by Hebron, and which was a fatal difficulty, is that the offer which Mrs Edwards accepted in an unqualified way by her signature on behalf of Hebron was expressed to be an “unconditional” offer — The unqualified acceptance of the unconditional offer gave rise to an agreement which was explicitly unconditional — Moffatt was identified unequivocally by its ACN — This was not a case of a sale of a residence to a consumer but of an acquisition of stock by a developer — Once it was accepted that the parties intended to be legally bound by their exchange of correspondence, the facilitation of the mechanical details of the implementation of their agreement could be supplied by implied terms and considerations of reasonableness which obviated the need for further express agreement — HELD: Appeal dismissed with costs.

Drew v Makita (Australia) P/L [2009] QCA 066 Holmes JA Muir JA Daubney J 24/03/2009

Appeal from the District Court — Torts — Respondent claimed damages for injuries sustained by him when his left hand was severed by a circular saw — Primary judge found that the circular saw had a defect in it within the meaning of s 75AC of the Trade Practices Act 1974 (Cth) and that the injuries resulted from the negligence of the appellant — Primary judge awarded judgment against the appellant in the sum of $194,454 — Primary judge: set out a brief resume of the evidence of each lay witness; referred to parts of the experts’ oral and written evidence; discussed relevant principles of law; and summarised the respective submissions of counsel for the parties — On Appeal — Primary judge made no reference to and did not discuss: any inconsistencies in the evidence of any witness; the reliability, weaknesses or strengths of the evidence of any witness; whether the evidence of one expert was to be preferred over the other and if so, why — The existence of a defect in the circular saw which enabled the safety guard to stick or jam in the open did not lead, necessarily, to a finding of liability — Necessary to establish that the safety guard was stuck in the open position at the time of the accident — Implicit in the primary judge’s finding that the safety guard was stuck and unable to retract at the time the respondent’s injury occurred — The precise way the accident occurred is unknown — Not all matters were discussed by the primary judge in his reasons; but in fairness to him, some of them were not drawn to his attention — Difficulties and inconsistencies in the evidence were not explained nor resolved by the primary judge — As far as one can tell from the reasons, his Honour’s conclusion about how the accident happened may be derived from intuition as much as from, or in lieu of, any logical reasoning process — Necessary for the primary judge to resolve significant evidentiary conflicts or inconsistencies — It was desirable that he make findings on credibility for the benefit of an appellate court in the event of an appeal and to obtain the benefit to be gained by submitting himself to the intellectual discipline thereby imposed — No ground of the notice of appeal challenged quantum — HELD: Appeal allowed, Orders of primary judge set aside, New trial on all issues other than quantum, Should the respondent be successful in establishing liability on the part of the appellant on the new trial, damages be as assessed by the primary judge in the original trial, costs of the first trial abide in the result of the new trial, respondent pay the costs of the appeal.

FY & Anor v Department of Child Safety [2009] QCA 067 Keane JA Muir JA Daubney J 24/03/2009

Application for Leave to Appeal from the District Court — In June 2008 the Ipswich Childrens Court constituted by a Magistrate decided pursuant to s 67 of the Child Protection Act 1999 (Qld) (CPA) that temporary custody of six children who had previously been in the custody of the applicants should be given to the Chief Executive of the Department of Child Safety — Proceedings had been brought because of a concern the children were being physically abused by the applicants — Two of the children were said to be natural children of the applicants with the other four children coming from Samoa and having been adopted by the applicants in accordance with Samoan law — The applicants appealed this decision to the Childrens Court which dismissed the appeal — On Appeal — The decision of the Childrens Court judge was a decision by that court as the “appellate court” for the purposes of s 117 of the CPA — No appeal from the Childrens Court constituted by a Judge, which is itself sitting as the appellate court, lies to the Supreme Court of Queensland, Court of Appeal division as of right — Unnecessary to determine whether an appeal lies to the Court of Appeal, even by leave, from a decision of the Childrens Court as the appellate court, however there is much to be said in favour of this view — The only orders sought by the applicants on their proposed appeal was that it be “ordered” that the applicants are “parents” within the meaning of the CPA — No order sought from the Court of Appeal in relation to the disposition of the custody of any of the children — The proposed appeal, even if successful, would not result in any variation to the orders made below — The Court of Appeal should not accept invitations to deliver hypothetical opinions about the reasons for decisions of inferior courts with such a role not in accordance with the modern understanding of the judicial function — Argument of guardianship of the children and standing in relation to the adopted children had not been considered by the courts below — Important to emphasise that it is of the first importance that the child protection proceedings be resolved as soon as possible in the interests of the children — Interlocutory skirmishing in which the parties have thus far been engaged has been remarkable for the proliferation of half-baked arguments the consequences of which have not been thought through — It is hoped that all parties will bring a more responsible focus to bear on the further prosecution of these proceedings — HELD: Notice of Appeal struck out, Application refused.

WorkCover Queensland v AMACA P/L & Anor [2009] QCA 072 de Jersey CJ McMurdo P Muir JA 27/03/2009

Case Stated from the Supreme Court, Trial Division — Case principally concerned with the proper construction of s 272(7) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (now numbered 207B(7)) — Mr Thomson contracted mesothelioma in the course of his employment in Queensland — He was a worker under the relevant legislation — In April 2006 he received $340,000 in compensation for which he was entitled under the statutory scheme — He died in June 2006 in consequence of the mesothelioma — In June 2007 WorkCover commenced a proceeding against the manufacturers and suppliers of the asbestos to which Mr Thomson had been exposed (AMACA and Seltsam) to recover the amount of the compensation paid to Mr Thomson relying on s 272(7) of the Act — The Questions (in brief): 1. Whether upon the proper construction of s 272(7) of the WCRA the damages referred to in the expression “liability for damages” are to be assessed at the date of trial or of judgment or some other dates? Answer: Damages are to be assessed at the date of judgment — Substantial authority that under materially similar legislation in other States the assessment of damages must be made at the date of judgment — Questions 2 and 3. Whether s 207B(7) posits the apportionment of each respondent’s respective liability, so that the extent of WorkCover’s indemnity enforceable against each is limited to that respondent’s liability? Answers: 2. No and 3. On the assumption to be made, the extracted words refer to the respective respondent’s liability for the whole of the damages. — On the assumption the Court of Appeal was invited to adopt, the respondents were respectively liable for the whole of the loss to Mr Thomson, their respective negligence having materially contributed to it — The “liability” of each, in terms of the sub-section, is for the whole — Had the legislature intended that a respondent’s liability could be assessed at less than 100 per cent of an injured party’s loss then it could be expected to have said so clearly — Question 4. Is the quantum of the indemnity the plaintiff is entitled to recover reduce by the operation of s 66 of the Succession Act 1981 (Qld) if the worker dies after compensation is paid and before the trial of the plaintiff’s action to recover the indemnity? Answer: Yes. The section treats the existence of the indemnity, and the calculation of the damages to determine how far it goes, as two quite separate matters — It is the survival of the worker’s cause of action which the legislation ensures — It is the assessment of damages under that cause of action which delineates the extent of the indemnity — Question 5. By whom should the costs of the Costs Stated be paid? Answer: The plaintiff, WorkCover Queensland should pay three-quarters of the respondents’ costs — In view of the respondents’ level of success of this determination.

Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 075 Keane JA Fraser JA Daubney J 3/04/2009

General Civil Appeal from the Supreme Court, Trial Division — Restitution — The respondent’s predecessor in title was a contractor engaged in the construction of an ammonium nitrate plant at Moura — The respondent engaged the appellant as its subcontractor to undertake the construction of earthworks and concrete works for the project — In March 2001 the appellant commenced proceedings against the respondent claiming moneys unpaid for work done under the contract — The respondent made a counterclaim for the recovery of some money paid by it to the appellant — The trial judge consolidated the judgments on claim and counterclaim and, including interest, gave judgment for the respondent in the sum of $15,216,484.16 — Described by Senior Counsel on appeal described the outcome of the appellant having to disgorge payments made for work actually performed for the respondent as “scandalous” — Court of Appeal would not disagree with this description however this epithet is not warranted by any aspect of the learned trial judge’s determination of the issues of law or fact tendered to him for decision by the parties — On Appeal — Common ground that much of the work which the appellant carried out was building work under s 42 of the Building Services Authority Act 1991 (Qld) (BSAA) — It is accepted that, contrary to the requirements of the Act, and in breach of terms of the subcontract, the appellant was not licensed to carry out building work under the Act — The trial judge remarked upon the dismal attempt made by the parties to address in the evidence the reasonable cost of the items of building work for which remuneration was claimed — Not argued on appeal that any of these observations were affected by error of fact or law — The entitlement to the unlicensed builder to recover or retain moneys paid to it is limited to the amount of reasonable remuneration claimed in conformity with the requirements of s 42(4) of the BSAA — The onus was on the appellant to make good a claim for an amount of reasonable remuneration under the BSAA — Absent such proof the respondent’s counterclaim was bound to succeed — The appellant failed to demonstrate its entitlement for reasonable remuneration when it had the opportunity to do so — The appellant’s argument involves a departure from the case made by the appellant at trial — Three contentions advanced by the appellant were not litigated at trial — That result is a consequence of its own failure to establish the case it determined to litigate at the trial — HELD: Appeal dismissed with costs.

Katsikalis v Body Corporate for “The Centre” [2009] QCA 077 McMurdo P Chesterman JA Douglas J 3/04/2009

Application from the District Court — Application for Leave to Appeal — Real Property — Strata and Related Titles and Occupancy — Common Property — Dispute related to a group of shops in an arcade in Surfers Paradise — Applicant’s shop, lot 6 in a building plan, was adjacent to lot 5 — Lot 5 carried out works to extend the ceiling bulkhead of his shop to align with the frontages of lot 6 and lot 4 which flanked lot 5 — The design of these shops was such that each odd-numbered lot was recessed 57 cms from its neighbours — The extension of the bulkhead over the entrance of the shop meant that the bulkhead occupied part of the common property of the body corporate — On 10 November 2005 at its annual general meeting the body corporate passed what was described as a special resolution that would allow such modification with approval from the committee — A subsequent committee resolution was made in respect of lot 5 granting permission for the extension — The resolution did not make clear which statutory power was being exercised — No money was offered for that use of the common property — The resolution could be construed as the grant of an indefinite licence to the owner of lot 5 to use that part of the common property however under s 91(1)(a) of the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Qld) such a resolution should have been passed without dissent — Four lot owners voted against it — On Appeal — The approvals were given retrospectively and would allow the extensions to the bulkheads over the common property to be enjoyed exclusively and indefinitely by the lot owner — This amounted to a disposition of that property at least by the grant of an exclusive licence to it for some indefinite period — The resolution purporting to authorise the extension of bulkheads was a disposition “otherwise” for the purposes of s 91(2)(a) of the regulation and was not passed without dissent, and was therefore invalid — Court of Appeal expressed concern about the delay between the filing of the appeal in the District Court at Southport on 17 March 2006 and the hearing of the appeal two years and five months later on 13 August 2008 — HELD: Application for leave to appeal granted, Appeal allowed, Order of the District Court set aside, Matter remitted to the adjudicator for determination in accordance with these reasons and costs.

Hare v Mt Isa Mines Ltd & Ors [2009] QCA 091 Holmes JA Fraser JA Douglas J 17/04/2009

Application from the District Court — Application for Leave to Appeal — Practice and Procedure — The respondent (a child of six) wished to bring a personal injuries action against the appellants — The respondent’s mother, a Ms Hare, gave part 1 of the notice of claim on her behalf — The respondent at first instance obtained a declaration that the notice of claim served on the appellants pursuant to s 9 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) was a complying part 1 notice of claim under PIPA — The learned judge found that the part 1 notice of claim fulfilled the fundamental purpose of providing sufficient information to a respondent about a proposed claim — On Appeal — The learned judge impermissibly recast the requirements of s 3(3) and s 3(4) of the Personal Injuries Proceedings Regulation 2002 (Qld) (PIPR) so as to substitute the requirement of “details of how the incident happened”, a different requirement for information about “the nature of the incident”. His Honour did not address the appellants’ argument that “details of how the incident happened” were not provided — Nor did the learned judge offer any reasons for his finding that the respondent’s notice identified “why the [appellants were] alleged to be responsible” and he simply did not deal with the appellant’s complaint that the respondent had wrongly answered Q 24 in the negative in response to the query of whether the respondent had suffered any injuries, illnesses or disabilities which might affect the extent of the disabilities to which the claim related or the amount of damages and had not complied with the requirement in s 3(6)(d) PIPR — The failure to give adequate reasons means, in this case, that the appellants are left with a justifiable sense of grievance — The appellant’s argument that the notice of claim did not give details of “how the incident happened” must be accepted — The answer at Q 9 explained what the “incident” was: the absorption of toxins at various locations; but it did not explain how that had happened — The appellant’s complaint that the respondent failed to give her reasons for attributing responsibility to the appellants is similarly justified — No link was drawn between the appellants’ alleged “contamination” and the respondent’s absorption of toxins or the locations at which her exposure was said to have occurred — In relation to the answer to Q 24 when the matter was before the judge at first instance there was uncontradicted evidence showing the relevance of the premature birth, hence the answer to Q 24 was then established to be wrong and the notice non-compliant — It is the state of the document at the time it is delivered that is relevant — Non-compliance cannot thereafter be altered although it can be remedied — To remedy her non-compliance in respect of the answers to Q 9 and Q 18 it was incumbent on the respondent to articulate to the appellants how she ingested the toxins and why she attributed responsibility to them — HELD: Application for leave to appeal granted; Appeal allowed; Declaration and costs order at first instance set aside; Application for stay dismissed with written submissions to be made on costs.

Virgtel Ltd & Anor v Zabusky & Ors [2009] QCA 092 Keane JA Fraser JA Wilson J 17/04/2009

Application from the Supreme Court, Trial Division — Application to Strike Out — Procedure under Rules of Court — Judgment and Orders — Relief Against — Virgtel and another are respondents to an appeal by Zabusky and others against a decision of the learned primary judge, Daubney J — Daubney J refused to stay several orders for costs made against Zabusky by de Jersey CJ and McMurdo J in proceedings by Virgtel against Zabusky — The principal proceedings arise out of the alleged wrongful diversion to Zabusky of payments which should have been made to Virgtel — Zabusky had sought a stay of the orders for costs until the determination of the principal proceedings but this had been refused by Daubney J — No appeal has been made by Zabusky against any of the orders for costs which have been made in the principal proceedings — Virgtel applied to the Court of Appeal to have Zabusky’s appeal against the refusal of the stay to be struck out or dismissed as incompetent on the basis that leave to appeal from Daubney J had not been obtained — On Appeal — A determination of Zabusky’s appeal by reference to the considerations relevant to an application for a stay of execution or the inherent jurisdiction of the court would not involve this Court in a review of the discretionary considerations which led de Jersey CJ and McMurdo J to make the orders for costs in favour of Virgtel in the principal proceedings — The only connection between the refusal of the stay and “an order as to costs” is that, historically, the liability the immediate enforcement of which Zabusky sought to stay arose pursuant to such an order but that connection is too tenuous and remote to characterise the refusal of the stay as an “order as to costs” — After the hearing of Virgtel’s application, Virgtel forwarded to the Court a further submission for which leave had not been sought or granted — The Court declined to receive this further submission — HELD: Application dismissed with costs.

CRIMINAL APPEALS

R v Hannigan [2009] QCA 040 de Jersey CJ Chesterman JA Atkinson J 3/03/2009

Sentence Application from the District Court — In November 2008 the applicant pleaded guilty to dangerously operating a motor vehicle when adversely affected by an intoxicating substance, and also to a number of summary offences all committed on an earlier date — The applicant was severely intoxicated, with three police officers required to get him into a police van — The applicant has an appalling history of traffic offences and was sentenced to a period of 18 months imprisonment suspended after serving six months with an operational period of two years — As well he was disqualified from holding or obtaining a driver’s licence for three years and convictions were recorded on each of the summary offences — The applicant accepted that the sentence was consistent with penalties imposed for similar offending and was within the appropriate range — On Appeal — The case for leave to appeal against sentence was on the basis that it was excessive if one had regard to evidence that he was assaulted by the arresting constable and that the assault and the injuries inflicted on the applicant amounted to “extra-curial punishment” which should have been taken into account and lead to a reduction in sentence — No evidence of the assault was put before the sentencing judge as the applicant had no knowledge or recollection of the event — A witness provided an affidavit that was read on the application and deposed that she “witnessed the police officer vigorously punching the face of the person in the utility and swearing at him…several times” — The arresting officer did not respond to the affidavit — The sentence imposed on the applicant should not be disturbed with an assumption that the constable punched the applicant several times, not to prevent his escape, or to overcome resistance to arrest, but in response to the manner in which the applicant had driven — The injuries to the applicant were minor, not serious, and he did not know he had been hit — The applicant cannot be regarded as having undergone punishment at the hand of the police officer when he himself was oblivious to the castigation and its aftermath — The punishment imposed on the applicant was apt to persuade him of the seriousness of his behaviour and to provide a sound incentive to reform — Excessive force, or violence, by police officers on persons they apprehend is unacceptable and is to be discouraged by all legitimate means — The proper responses to such misconduct include disciplinary action by the Police Service to whom complaint is made; a civil action for damages for assault; a prosecution for assault. — To reduce the sentence imposed on the applicant would not work any sanction on the arresting constable and may remove a deterrent against re-offending and hence increase the risk to the public that he might re-offend — HELD: Application for leave to appeal against sentence refused.

R v Bedeau [2009] QCA 043 McMurdo P Muir JA Atkinson J 6/03/2009

Sentence Application from the District Court — Applicant convicted after a trial of two counts of using the internet to procure a child to engage in a sexual act and one count of using the internet to expose a child to an indecent act — In January a police officer using the pseudonym “Gemma Sterling” made contact with the applicant informing him that she was 14, female and lived in Brisbane — The applicant commenced a lurid sexual discourse in the course of which he purported to give instructions to “Gemma” on masturbatory techniques and arranged to meet her that night for the purposes of engaging in sexual activity — The meeting did not take place — The applicant was sentenced on each count to an 18 month term of imprisonment with all terms ordered to be served concurrently — No suspension was ordered — On Appeal — Whether the primary judge took into account the fact that the conversation was initiated by the police officer was unknown — The evidence was before her and the applicant’s counsel made no submissions in that regard — The applicant’s contention that the primary judge erred in failing to take into account a matter not relied on by the applicant’s counsel, merely because it was not mentioned in the sentencing remarks should be rejected — However the relevance of the fact that the unlawful conduct in a conversation was initiated by a police officer was accepted — Also of relevance was the applicant’s role as his ill mother’s carer and her financial dependence on him — Other relevant considerations were the applicant’s work history, lack of relevant criminal history and the fact that he did not, in fact, communicate with a 14 year old girl — The failure to set a parole release date or to suspend the sentences after six months resulted in manifestly excessive sentences — HELD: Application for leave allowed, Appeal allowed, Each sentence imposed at first instance be suspended after six months with an operational period of three years.

R v Phillips [2009] QCA 057 Holmes JA White AJA McMurdo J 20/03/2009

Appeal against Conviction & Sentence from the District Court — The appellant went to trial on four counts of rape and was convicted of one count of rape, in respect of two others he was convicted of the lesser alternative of unlawful carnal knowledge; and he was acquitted absolutely on the remaining count — The complainant was a 13 year old girl who was a friend of the complainant’s stepbrother — The appellant often stayed at the complainant’s home, with the four offences said to have occurred on four such overnight stays — On Appeal — Evidence that once the prosecutor had concluded her closing address the trial judge adjourned the court, that the associate had both thumbs raised in a ‘thumbs up’ gesture, and mouthed words to the effect, “That was awesome” — It was common ground that a juror or jurors might have seen the associate’s gesture and mouthed words — Although unaware of what had occurred, the directions of the trial judge were apt to remind the jury of the need to act only on the evidence, disregarding the views of others — This ground of appeal fails — Nothing in the evidence explains why the jury, at the least, considered that the Crown had not ruled out mistaken belief in consent in relation to counts 1 and 3 (unlawful carnal knowledge), despite the complainant’s evidence of having offered physical resistance to the appellant, yet convicted of rape on count 4, in which there was no equivalent evidence of any resistance — Verdict on count 4 (rape) was unreasonable — Significant that there had been no Attorney-General’s appeal against the sentences of two years imprisonment on the other unlawful carnal knowledge counts — To impose a greater sentence on this count would be, in effect, to treat the sentences on those counts as inadequate without any appeal having been heard in respect of them — HELD: Appeal against conviction in respect of counts 1 and 3 dismissed, In respect of Count 4 appeal against conviction allowed, conviction of rape set aside and conviction of unlawful carnal knowledge substituted, In respect of count 4, sentence of two years imprisonment imposed, with 378 days to be declared to be imprisonment already served under that sentence.

R v ON [2009] QCA 062 Holmes JA Muir JA Fraser JA 24/03/2009

Appeal against Conviction from the District Court — Appellant convicted of one count of indecent treatment, six counts of rape, one count of maintaining an unlawful relationship, one count of assault occasioning bodily harm, and two counts of common assault (counts 1 to 9 and 12 to 13) — The appellant was acquitted of a further two counts of assault occasioning bodily harm, and killing an unborn child (counts 10 to 11) — The complainant in respect of all counts was his step-daughter (B) and were said to have been committed when she was 13 years old until she was 20 years old — At the suggestion of police, B telephoned the appellant in a call which was recorded by police — B gave evidence that she became pregnant to the appellant and that during the course of an argument he assaulted her, threw her from the stairs so that she landed on her stomach on concrete, causing her to lose the baby — A doctor from the hospital where B was treated said that B made no complaint of assault or injury, and no abrasions, lacerations, bruising or other signs of injury were noted — The appellant was acquitted of these counts of assault occasioning bodily harm and of killing an unborn child — On Appeal — Joinder of Charges — Objectively speaking there was a discernible forensic reason for wishing the counts involving the offences of violence to proceed with the others, particularly the counts on which the appellant was acquitted — Medical evidence was able to confirm the absence of any contemporaneous complaint or sign of injury — The forensic advantage of this course was not so “slight in comparison with the importance to be attached to the … irregularity in question” as to lead to a different conclusion — No miscarriage of justice resulted from the joinder — Recorded Telephone Conversation — At trial the prosecutor opened and addressed the evidence of the tape as manifesting the appellant’s guilty knowledge — Once the prosecutor invited the jury to conclude that the conversation demonstrated a consciousness of guilty, upon which it could act, it was incumbent on the trial judge to give a direction of the Edwards type (Edwards v The Queen (1992) 173 CLR 653), with the jury being cautioned that it should consider whether there might be other reasons than consciousness of guilt for the appellant’s responses, and that the relevant consciousness of guilt must be in relation to the offences charged, not some other misconduct — No such direction was given — Comments that the learned judge did make compounded the error by suggesting that there was some relevant failure to deny allegations and that the jury might infer guilt from the tenor of the conversation — HELD: Appeal allowed, convictions set aside, appellant to be retried on counts 1 to 9, and 12 to 13

R v Swayn; ex parte A-G (Qld) [2009] QCA 081 Muir JA Fraser JA Mullins J 9/04/2009

Appeal from the District Court — Sentence Appeal by the Attorney-General (Queensland) — Respondent, Anthony Swayn, received a sentence on 27 November 2008 of eight months imprisonment with a parole release date of 27 November 2008 for an offence of grievous bodily harm — The respondent was 27 at the time of the offence, had a relatively minor criminal history and resided with his pregnant de facto spouse, their three month old child and the respondent’s 10 year old daughter — The respondent worked as a trades assistant at the time of the offence — The respondent and his brother, Patrick Swayn, had been informed by a person called Fielder that the complainant had threatened members of their family — Fielder had a grievance against the complainant arising out of a drug transaction — Fielder, the respondent and Patrick went to an apartment where they found the complainant — Fielder and Patrick assaulted the complainant — The respondent did not enter the premises but went there believing that his companions intended to assault the complainant — His role was to provide assistance to his co-offenders should it be required — Fielder assisted in the administration of justice and his sentence was reduced due to his special circumstances — Patrick was 31 years of age at the time of the offence, had a more extensive criminal history and was sentenced to three years imprisonment suspended after eight months with an operational period of three years — On Appeal — There was a significant difference in the brothers’ offending conduct arising from their respective roles — Patrick’s criminal history was more extensive and he was four years older than his brother — The combination of factors show that the sentencing judge was correct in treating the respondent more leniently than his brother — Authorities show that a sentence imposed for an offence such as that committed by the respondent should normally include a term of actual custody unless there are particular circumstances which militate against that result — The offence was premeditated and the respondent was in company with others — He does not have the benefit of a plea of guilty and he did have a relevant criminal history — Those matters combine to establish that the criminality of the respondent’s conduct was not reflected in his sentence: it was manifestly inadequate — If the respondent’s sentence is to be increased then having regard to the parity principle it would need to take into account the early suspension of Patrick Swayn’s sentence — HELD: Appeal allowed, Sentence of fifteen months imprisonment suspended after four months with an operational period of two years be substituted, Warrant to issue for the arrest of the respondent.

R v Rose [2009] QCA 083 McMurdo P Muir JA Atkinson J 9/04/2009

Application from the District Court — Application for Extension (Sentence & Conviction) — Objections or Points Not Raised in Court Below — Appellant charged and convicted of incest with his de facto daughter under s 222 of the Criminal Code 1899 (Qld) — Court heard the application for an extension of time to appeal against conviction on 19 February 2009, granted the application, allowed the appeal, quashed the convictions and reserved its decision as to whether a re-trial should be ordered on any count — The appellant’s relationship with the complainant’s mother began in about 2001 when the complainant was approximately 12 years old — He assumed the role of father to the complainant — When the complainant was 17 the appellant had sex with her — The appellant showed no remorse or insight into the significant detrimental impact of his conduct on her — On Appeal — Immoral behaviour does not, however, always equate to criminal behaviour — Whether the appellant is criminally liable for his dishonourable relationship with the vulnerable complainant turns on the terms of s 222(8) of the Code, and, in particular the meaning of “persons…who are lawfully entitled to marry”. There is no evidence in this case that the parties planned to marry — Once the complainant was 18 years old, she and the appellant were both “persons… entitled to be lawfully married” under the Code — It was conceded by the respondent that the appellant’s convictions for the offences when the complainant was 18 years old must be quashed — The complainant at the times of the other offences was 17 years old and entitled under the Marriage Act to lawfully marry the appellant after obtaining an order of a judicial officer and with the necessary consent — She therefore had grounds for laying a claim to be able to lawfully marry — HELD: Application granted, Appeal allowed, Convictions quashed and Verdicts of acquittal entered on the offences.

R v Cannell [2009] QCA 094 McMurdo P Fraser JA Applegarth J 21/04/2009

Appeal from the District Court — Appeal against Conviction — Misdirection and Non-Direction — Appellant was charged with one count of rape and one count of assault occasioning bodily harm — Pleaded guilty to the assault charge and was found guilty after trial of the rape charge — He was sentenced to eight years imprisonment for rape and to a concurrent term of three years for the assault charge — On Appeal — The complainant consistently maintained her account that the appellant had sex with her against her will, with no evidence directly contradicting her account and a considerable amount of evidence to support it — Although the appellant was very intoxicated at the time, the prosecution did not allege that she “lacked the cognitive ability to give the consent” referred to in s 348(1) of the Criminal Code 1899 (Qld) — The judge then spent a significant portion of his summing-up referring to the evidence in what had been a short trial with less than three days of evidence — The judge’s summation of the evidence covered about 32 pages of the 75 pages of his Honour’s transcribed jury directions — After retiring the jury returned seeking “clarification of the legal definition of consent” — The judge stated to the jury “If a complainant such as [the complainant’ was unconscious, blacked, asleep or so affected by alcohol or drugs that she did not know what was occurring when the act of intercourse took place, the she does not have the cognitive capacity to consent to intercourse.” — Any lack of cognitive capacity on the part of the complainant at the time of sexual intercourse was simply not an issue at trial, although her intoxication and its effect on her reliability of her account was a central issue — If the jury were in doubt as to her account that she did not consent, they should have acquitted — The judge in his ultimate redirection should have told the jury that they could only convict the appellant if they were satisfied beyond reasonable doubt that the appellant had sex with the complainant in [the] unit after forcing the complainant into submission, essentially in the way she described in her evidence — His Honour could and should have told the jury that it was not the prosecution case that the complainant was too drunk to have the cognitive capacity to give consent — The judge’s directions and redirections failed to identify the real issue in the trial and to relate it to the relevant law and facts — HELD: Appeal against conviction of rape allowed, Application for extension of time granted, Application for leave to appeal against sentence on the assault charge granted and the appeal allowed, Sentence imposed on the assault charge set aside with the matter remitted to the District Court for determination at the completion of any re-trial in respect of the offence of rape.

R v Campbell [2009] QCA 095 McMurdo P Keane JA Chesterman JA 21/04/2009

Application from the District Court — Sentence Application — Applicant was charged with child stealing and assault occasioning bodily harm in company — Found not guilty of the child stealing charge but guilty of the assault charge — Sentenced to 12 months imprisonment with parole release date fixed at 11 June 2009 — The applicant was 50 years old at the time of the offence and 52 at sentence — No relevant prior convictions however he had a 2005 conviction for soliciting for prostitution for which he was fined — The applicant’s daughter had been in a de facto relationship with the complainant — There were two children of this relationship and they were ordinarily resident with the daughter with the complainant having regular access to them — The daughter asked the complainant to look after the children while she moved house — No discussion occurred as to when the children would return to the daughter — The daughter asked for the children’s return but this did not occur — The police were called and performed a welfare check and found that the children were being properly cared for and not in any danger — The applicant said to the police officer “I’ll just go and kidnap the kids then” — The police warned him that he could be charged if he did this and that the proper channel was to go through the family law courts — In a car park at a shopping centre the applicant sought the return of one of the children from the complainant — He placed the complainant in a headlock from behind and then stepped back and kicked the complainant in the buttocks or lower back with sufficient force to cause him to fall to the ground — The complainant suffered minor soft tissue injuries — On Appeal — The primary judge’s concern to impose a sentence that discouraged vigilantism and encouraged citizens to follow lawful means to enforce their rights was sound — The applicant was a mature man — The applicant had shown no remorse or insight into the seriousness of his conduct — Nor did he have the mitigating benefit of a plea of guilty — The sentencing judge’s concern about the applicant’s contempt for the rule of law and his resort to violence to effect his daughter’s rights in relation to the child certainly warranted condign punishment — Assaulting and causing bodily harm to the carer of a young child in a public place in the presence of the child and in the company of others was appalling behaviour — Endorse the observations of the trial judge made for the benefit of taxi licensing authorities that the applicant’s commission of this offence would appear to have no bearing on the question of his fitness to continue to drive taxis — HELD: Application for leave refused.

R v Cannell (No 2) [2009] QCA 097 McMurdo P Fraser JA Applegarth J 24/04/2009

Appeal from the District Court — Appeal against Conviction — Misdirection and Non-Direction — Appellant was charged with one count of rape and one count of assault occasioning bodily harm — Pleaded guilty to the assault charge and was found guilty after trial of the rape charge — He was sentenced to eight years imprisonment for rape and to a concurrent term of three years for the assault charge — On Appeal — The complainant consistently maintained her account that the appellant had sex with her against her will, with no evidence directly contradicting her account and a considerable amount of evidence to support it — Although the appellant was very intoxicated at the time, the prosecution did not allege that she “lacked the cognitive ability to give the consent” referred to in s 348(1) of the Criminal Code 1899 (Qld) — The judge then spent a significant portion of his summing-up referring to the evidence in what had been a short trial with less than three days of evidence — The judge’s summation of the evidence covered about 32 pages of the 75 pages of his Honour’s transcribed jury directions — After retiring the jury returned seeking “clarification of the legal definition of consent” — The judge stated to the jury “If a complainant such as [the complainant’ was unconscious, blacked, asleep or so affected by alcohol or drugs that she did not know what was occurring when the act of intercourse took place, the she does not have the cognitive capacity to consent to intercourse.” — Any lack of cognitive capacity on the part of the complainant at the time of sexual intercourse was simply not an issue at trial, although her intoxication and its effect on her reliability of her account was a central issue — If the jury were in doubt as to her account that she did not consent, they should have acquitted — The judge in his ultimate redirection should have told the jury that they could only convict the appellant if they were satisfied beyond reasonable doubt that the appellant had sex with the complainant in [the] unit after forcing the complainant into submission, essentially in the way she described in her evidence — His Honour could and should have told the jury that it was not the prosecution case that the complainant was too drunk to have the cognitive capacity to give consent — The judge’s directions and redirections failed to identify the real issue in the trial and to relate it to the relevant law and facts — HELD: Appeal against conviction of rape allowed, Application for extension of time granted, Application for leave to appeal against sentence on the assault charge granted and the appeal allowed, Sentence imposed on the assault charge set aside with the matter remitted to the District Court for determination at the completion of any re-trial in respect of the offence of rape.

R & R Fazzolari Pty Limited v Parramatta City Council; Mac’s Pty Limited v Parramatta City Council [2009] HCA 12 (2 April 2009)

The High Court decided that Parramatta City Council may not compulsorily acquire land owned by R & R Fazzolari Pty Ltd and Mac’s Pty Ltd without their approval.

Parramatta City Council proposed to redevelop a block within the city centre bounded by Smith,Darcy, Church and Macquarie Streets. The redevelopment was to be called “Civic Place” and was to be carried out under a Public Private Partnership between Parramatta City Council and two companies in the Grocon group. The agreement between the Council and Grocon provided, amongst other things, that the Council would acquire certain land within the redevelopment block and would transfer some of the acquired land to the Grocon companies, and in return, the Council would receive substantial financial payments and other benefits from Grocon.

Some of the land which the Council had to compulsorily acquire in order for the agreement between it and Grocon to come to fruition and for the redevelopment to proceed belonged to R& R Fazzolari Pty Ltd. Some belonged to Mac’s Pty Ltd. Some parts of the land — in Darcy St and Church St – were actually parts of the public roads owned by the Council under the Roads Act. Although those two streets were vested in the Council, it had to compulsorily acquire them from itself in order for them to be utilised in the redevelopment. That procedure was authorised by section 7B of the Land Acquisition (Just Terms Compensation) Act.

In NSW section 188(1) of the Local Government Act provides that if land is being acquired for the purpose of re-sale, then it may not be compulsorily acquired without the approval of the owner. Section 188(2) qualifies this constraint on a Council’s power to compulsorily acquire land — it provides that the owner’s approval is not required if the land is part of, adjoins or lies in the vicinity of other land acquired at the same time under Part 1 of Chapter 8 of the Local Government Act for a purpose other than re-sale

The Council sent proposed acquisition notices to owners of land within the redevelopment block, including Fazzolari and Mac’s. Each of them challenged the proposed acquisitions on the basis that their land was being acquired in order to re-sell it to Grocon. Before the NSW Land and Environment Court they successfully argued the land could not be compulsorily acquired without their consent. However three judges of the NSW Court of Appeal agreed with the Council that the land belonging to Fazzolari and Mac’s was being acquired to implement the Council’s “Civic Place” project and not for the purpose of re-selling it to Grocon. The Court of Appeal held the Council did not need the owners’ consent to compulsorily acquire the land.  Fazzolari and Mac’s appealed to the High Court.

The High Court considered that the acquisition of the Fazzolari land and the Mac’s land could be characterised as steps along the way in an arrangement which was directed towards the “Civic Place” re-development, but that did not detract from the fact that, under the development agreement, the Council’s purpose in acquiring the specific parcels of land owned by Fazzolari and Mac’s was to re-sell them to Grocon.   At the hearing before the High Court the Council argued that, even if the land owned by Fazzolari and Mac’s was being compulsorily acquired for the purpose of re-sale, both parcels of land adjoined other land (ie — Darcy St and part of Church St) acquired under Part 1 of Chapter 8 of the Local Government Act for a purpose other than re-sale. The Council argued that the application of section 188(2) of the Local Government Act meant it was not required to obtain the owners’ approval for the compulsory acquisition. The High Court, however, found the Council was acquiring Darcy St and part of Church St under section 7B of the Just Terms Compensation Act, not under Part 1 of Chapter 8 of the Local Government Act, and therefore section 188(2) did not apply to relieve the Council of the need to obtain the approval of Fazzolari and Mac’s before it compulsorily acquired their land.

Carroll v The Queen [2009] HCA 13 (21 April 2009)

The High Court allowed Mr Carroll’s appeal and remitted to the Court of Criminal Appeal of the Supreme Court of New South Wales for reconsideration the Director of Public Prosecution’s appeal against the sentence imposed on Mr Carroll for his plea of guilty to manslaughter.  The decision of the five member High Court was unanimous.   One evening in May 2007 Mr Carroll and his friends left a hotel at about the same time as Mr Criniti. A dispute arose between some members of the group and Mr Criniti and Mr Criniti made some threats to harm them. Mr Carroll responded by head-butting Mr Criniti, who fell backwards onto the road and hit the back of his head on the roadway. Ten days later Mr Criniti died.   Mr Carroll pleaded guilty to manslaughter and was sentenced by a judge of the District Court of New South Wales to a three-year term of imprisonment, to be served by way of periodic detention, with a non-parole period of 18 months.  The sentencing judge gave detailed reasons for that decision.  The DPP appealed against that sentence to the Court of Criminal Appeal and submitted that the sentence was manifestly inadequate.  By majority, the Court of Criminal Appeal accepted the submissions put by the DPP and re-sentenced Mr Carroll to a period of full- time incarceration.   Mr Carroll was granted special leave to appeal to the High Court on the question of whether the majority of the Court of Criminal Appeal erred in concluding that the sentence imposed by the primary judge was manifestly inadequate.   The High Court found that the majority in the Court of Criminal Appeal was wrong to assess the adequacy of the sentence on the footing that Mr Carroll should not have been provoked by Mr Criniti’s conduct. The primary judge had found that Mr Carroll had been subject to some provocation and the Crown had not challenged this finding. Secondly, the High Court said that it was an error for the Court of Criminal Appeal to assess the seriousness of the offence by characterising it as one in which “severe injury was clearly foreseeable and death at least a possibility”. Mr Carroll’s admission of guilt acknowledged no more than that his act in striking Mr Criniti carried an appreciable risk of serious injury.   The High Court remitted the DPP’s appeal against the inadequacy of the sentence to the Court of Criminal Appeal for determination because the task of deciding that question is better undertaken by that Court.

IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14 (22 April 2009)

IceTV provides a subscription based electronic television program guide known as the “IceGuide”, which uses time and title information obtained in part from aggregated guides such as those published in newspaper TV guides and online.  The aggregated guides are based on TV program scheduling information provided to media outlets by the television networks.  The Nine Network provides a weekly schedule which is incorporated into the aggregated guides.  The High Court decided that IceTV’s use of some of Nine Network’s time and title information obtained from aggregated guides did not infringe Nine’s copyright in its weekly schedules.   The IceTV guide originated from templates of the daily programming of the Sydney channels, Nine, Ten and Seven prepared by an employee of IceTV who watched television continuously for a period of weeks and wrote down time and title information of programs broadcast throughout that time.  The template was then used to predict programs to be broadcast for the purposes of the IceGuide.  The IceGuide itself was corrected from week-to-week by reference to the aggregated guides.   The aggregated guides are schedules of programs to be broadcast on various television stations over a given week and are published in various media.  They are produced from information provided by free-to-air television broadcasters including information provided by the Nine Network via its weekly schedules.  The weekly schedule is a schedule of programs to be broadcast on Nine Network stations in a given week and is produced from an electronic database.  It contains various elements including the time and title of programs to be broadcast, whether a program is a repeat or live screening, format and classification information, and program or episode synopses.   When the IceGuide is downloaded on to certain devices it displays details of programs scheduled to be broadcast by free-to-air television stations for the coming six to eight days, including stations in the Nine Network.  In preparing information to be included in the IceGuide for a given day in a current week, IceTV employees would use information usually in the previous week’s IceGuide for that specific day, then compare it with the published aggregated guide for that same day in the current week.  If there were a discrepancy between the IceGuide and the aggregated guide, the IceGuide would be amended to reflect the aggregated guide in almost all circumstances.   Nine Network argued before a single Judge of the Federal Court that IceTV’s reproduction of time and title information from the aggregated guides amounted to reproduction of a substantial part of the weekly schedules which had been prepared by Nine Network staff.  On that basis the Nine Network argued that IceTV had infringed Nine’s copyright in the weekly schedule.  The trial judge disagreed.  The Nine Network appealed to the Full Court of the Federal Court which allowed the appeal.  The High Court granted IceTV special leave to appeal against the Full Court’s decision.   Today the High Court allowed IceTV’s appeal having determined that its use of time and title information in the IceGuide did not infringe Nine’s copyright in either the weekly schedule or the database from which the weekly schedule was produced, assuming without deciding that Nine had copyright in the database.  The judges of the Court produced two separate sets of reasons.   Three judges were of the view that a program’s title was ordinarily bestowed by the producer of the program rather than the person or persons who authored the weekly schedule and that expression of the time at which a program is shown can only practically be done by using words or figures based on either a 12 or 24 hour time cycle for a day.  Thus there was little originality in the expression of time and title information.  The level of skill and labour required to express the time and title information was minimal.  These considerations led to the conclusion that the time and title information was not a substantial part of the weekly schedule or of Nine’s database. Their Honours determined that IceTV had not infringed Nine’s copyright in the weekly schedule or the Nine database when it utilised time and title information from the aggregated guides in the IceGuide.   The other three judges considered that the originality of Nine’s weekly schedule lay not in the time and title information but rather in its selection and presentation together with additional program information and synopses to produce a composite.  They considered that setting down program titles in particular time slots required only modest skill and labour.  IceTV’s use of the time and title information from the aggregated guide therefore could not be characterised as reproduction of a substantial part of the weekly schedule or of the Nine database.   The High Court set aside the orders of the Full Federal Court and restored the orders made by the trial judge.

Stuart v Kirkland-Veenstra [2009] HCA 15 (22 April 2009)

The High Court decided that two police officers did not owe Mrs Kirkland-Veenstra’s husband, Ronald Veenstra, a duty of care to take steps to prevent him from committing suicide.   At about 5.40am on 22 August 1999, two police officers observed Mr Veenstra in his car at a beachside car park. There was a hose pipe leading from the exhaust into the interior of the car, but the car engine was not running. The officers spoke with Mr Veenstra who indicated that he had thought about doing something stupid but had changed his mind. The officers offered to contact various people, including his wife or a doctor, but Mr Veenstra said that he would go home and talk to his wife. The officers considered that Mr Veenstra was rational and cooperative and showed no sign of mental illness. They allowed him to leave. Later that day, Mr Veenstra committed suicide at his home by securing a hose from the exhaust of his car and starting the engine.   Under section 10 of the Mental Health Act (Victoria), the police officers were empowered (though not obliged) to apprehend a person and take him or her to be assessed by a medical practitioner if he or she appeared to them to be mentally ill (“mental illness” being defined in the Act to mean “a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory”) and they reasonably believed that he or she had recently attempted suicide or was likely to do so.   Mrs Kirkland-Veenstra sued the officers and the State of Victoria, arguing that the officers owed duties of care, both to her husband to protect his health and safety, and to her to avoid the foreseeable psychiatric injury consequential upon her husband committing suicide.   In the Victorian County Court, the trial judge held that, as a matter of law, the officers owed neither Mr Veenstra nor Mrs Kirkland-Veenstra a duty of care. On appeal to the Victorian Court of Appeal, it was held by majority that the officers did owe those duties of care. The two officers appealed to the High Court and the High Court today allowed their appeal.   In three separate judgments, all six Justices decided that the officers owed no duty of care to either Mr Veenstra or Mrs Kirkland-Veenstra. It was explained that historically the law did not oblige a person to rescue another from harm. In one judgment it was held that the circumstances present in this case did not contain special features to take the case outside of that general rule; no duty of care arose. The Justices held that the control of the risk of the harm to himself remained with Mr Veenstra.   In each of the judgments it was pointed out that the Mental Health Act was not designed to prevent suicide; it was addressed to the protection of mentally ill persons. It would be wrong to assume that all persons who attempted suicide were mentally ill; the Mental Health Act contained no such assumption.

Three Justices considered the fact that the police officers had not formed the view that Mr Veenstra was mentally ill to be critical. Unless they had that opinion they were not permitted to apprehend him pursuant to section 10 and take him to be assessed. They did not have that power.    The High Court set aside the decision of the Victorian Court of Appeal and reinstated the trial judge’s finding that the officers owed no duty of care to Mrs Kirkland-Veenstra.

Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 (22 April 2009)

The High Court dismissed Radio 2UE’s appeal in relation to an earlier jury finding that comments made by John Laws about Ray Chesterton on the John Laws Morning Show were defamatory.   On 8 August 2005, on his radio program, John Laws made some derogatory comments about Ray Chesterton, a journalist who had previously worked with 2UE. Radio 2UE Sydney Pty Ltd is the licensee of the radio station over which the comments were broadcast. Mr Chesterton sued 2UE for defamation.   At the trial before a judge and jury in the Supreme Court of NSW, the jury had to decide whether the comments made by John Laws conveyed certain imputations about Mr Chesterton and, if so, whether those imputations defamed him. The jury decided in Mr Chesterton’s favour on both of those issues.   Radio 2UE appealed to the NSW Court of Appeal, arguing that the trial judge had given the members of the jury incorrect directions about how they should decide whether Mr Chesterton had been defamed in respect of his professional or business reputation. The Court of Appeal, by majority, found that the trial judge had given appropriate directions to the jury.   2UE was granted special leave to appeal to the High Court. A majority of justices affirmed that the general test for defamation, namely whether an ordinary reasonable person would think less of the plaintiff because of what was said about him or her, applied to imputations regarding all aspects of a person’s reputation, including business reputation.   All members of the High Court considered that the trial judge had given appropriate directions to the jury about how they should approach the task of determining whether Mr Laws’ comments contained certain imputations, and if they did, whether the comments were defamatory. The members of the Court were unanimous in dismissing 2UE’s appeal.

Jones v The Queen [2009] HCA 17 (29 April 2009)

In April 2007 Christopher Jones and James Roughan were convicted of murdering Morgan Jay Shepherd, a 17 year old youth. Five Justices of the High Court unanimously dismissed Mr Jones’ appeal against the Queensland Court of Appeal’s determination that there had been no substantial miscarriage of justice arising out of his trial.   Mr Shepherd’s decapitated body was found in a shallow grave in bushland near Dayboro, a township north of Brisbane, in April 2005. He had been stabbed numerous times though it was impossible to determine which wound had actually caused his death.  Mr Jones and Mr Roughan were charged jointly with his murder. Each pleaded not guilty to murder but guilty to being an accessory after the fact. At their joint trial the evidence that both were present when Mr Shepherd died was uncontroverted, however each argued that the other had killed him. A tape recording made secretly while both were in a prison van did not contain unequivocal admissions of guilt from either of them.   The jury convicted both men of murder. Both appealed against the jury’s verdict to the Queensland Court of Appeal. That Court allowed Mr Roughan’s appeal and he was retried, however, he was convicted at his second trial. The Court of Appeal dismissed Mr Jones’ appeal, and the High Court granted special leave to Mr Jones to appeal to this Court.   In the High Court Mr Jones’ counsel submitted that the primary judge had erred in refusing to allow him to lead evidence concerning allegations that Mr Roughan, in circumstances unrelated to the death of Mr Shepherd, had attempted to murder a friend by attacking him with a knife. The evidence, it was submitted, was relevant to Mr Jones’ argument that Mr Roughan was a violent man of whom Mr Jones was afraid, and thus more likely to have committed the murder than was Mr Jones. However, the Court considered that the evidence Mr Jones wanted to lead about that issue was hearsay and not admissible.   Mr Jones also submitted that the Court of Appeal had been wrong to dismiss his appeal given that it had found that the trial judge had misdirected the jury in one respect. The High Court considered that it was open to the Court of Appeal to find that the misdirection did not result in a substantial miscarriage of justice. It considered that the Court of Appeal’s conclusion, that the Crown’s case against Mr Jones was overwhelming, was one that was well open to it.   The Court unanimously dismissed Mr Jones’ appeal against his conviction.

Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18 (29 April 2009)

The High Court allowed Dr Keramianakis’ appeal against a decision of the NSW Court of Appeal that it had no jurisdiction to consider his appeal against a verdict entered by a District Court judge in favour of Regional Publishers Pty Ltd.   Regional Publishers Pty Ltd publishes the Daily Liberal, a newspaper which circulates in Dubbo. In March 2001 the newspaper published an article about a skin cancer clinic operating under the name “Dubbo Skin Cancer Centre” which included comments critical of the services offered at the clinic and of its fees. Dr Keramianakis and a colleague had established and were running the clinic. They sued Regional Publishers for defamation in the District Court of NSW.   Under section 7A of the Defamation Act 1974 (NSW) (the relevant law at the time these events occurred), if the court determined that a publication was reasonably capable of carrying the imputation pleaded by a complainant and that the imputation was reasonably capable of bearing a defamatory meaning, then a jury had to determine whether in fact the publication did carry the imputation pleaded by the complainant and whether the imputation was defamatory.   The trial judge determined that the comments published in the Daily Liberal were reasonably capable of carrying the imputations pleaded by Dr Keramianakis and that the imputations were reasonably capable of bearing a defamatory meaning. He asked the jury to determine whether the comments in fact carried the imputations Dr Keramianakis alleged they carried. In each case the jury answered, “No”. Those answers were fatal to Dr Keramianakis’ case. On the basis of the jury’s answers the trial judge entered a verdict in favour of Regional Publishers Pty Ltd and ordered Dr Keramianakis to pay Regional Publishers’ costs.   Dr Keramianakis appealed to the NSW Court of Appeal. The majority of that Court considered that the District Court Act allowed an aggrieved party to appeal against a judgment or order of a judge following a jury trial. However, it held that a verdict, even when entered by the judge, did not fall within the description of a “judgment or order”. In the case of a District Court civil jury trial, an aggrieved party could only challenge a jury verdict by making an application for a new trial before the judgment against that party had been entered. The majority of the Court of Appeal determined that it did not have the power to hear Dr Keramianakis’ appeal. The Court of Appeal did say that had it had the power to hear the appeal, it would have found in favour of Dr Keramianakis in relation to two of the three imputations the jury was asked to consider, and it would have entered a verdict for Dr Keramianakis in relation to the complaint of defamation contained in those two imputations.   The High Court granted Dr Keramianakis special leave to appeal against the decision of the Court of Appeal and today, in a unanimous decision, held that Dr Keramaniakis had a right to appeal against the orders made by the trial judge in favour of Regional Publishers. This right was not affected by the existence of the procedure which would have allowed him to challenge the jury’s answers by seeking a new trial prior to the verdict being entered.  The Court set aside the orders of the NSW Court of Appeal and ordered that there should be a new trial to determine whether the Dubbo Liberal carried the two imputations alleged by Dr Keramianakis, and if it did, whether the imputations were defamatory.

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Limited [2009] HCA 19 (30 April 2009)

The High Court handed down a decision about the scope of what is sometimes called the “media safe-harbour” protecting media outlets from liability for misleading or deceptive conduct under the Trade Practices Act.   Section 52 of the Trade Practices Act prohibits a corporation from engaging in misleading or deceptive conduct, or in conduct that is likely to mislead or deceive.  Section 65A of that Act exempts “prescribed information providers” from the application of section 52, except in certain circumstances.  Television broadcasters holding licences under the Broadcasting Services Act 1992 are “prescribed information providers”.  Prescribed information providers do not have the benefit of the exemption where a misleading or deceptive publication concerns the supply or possible supply of goods or services and is made pursuant to a contract, arrangement or understanding with a person who supplies good or services “of that kind”.  Today a majority of the High Court allowed an appeal by the Australian Competition and Consumer Commission (the ACCC) against a decision of the Full Court of the Federal Court, which found that the media exemption under section 65A applied to members of the Channel Seven network. The High Court was required to determine what was meant by goods or services “of that kind”. The case concerned the broadcast of two episodes of Today Tonight containing segments concerning a business called “Wildly Wealthy Women”. The business offered to train women to make money out of real estate investment.   At the hearing of the appeal in the High Court, there was no dispute that the relevant Today Tonight episodes contained untrue claims about the wealth and assets of the two women who were offering the training. Nor was it in dispute that certain representations made in the episodes were misleading and deceptive.  The main question to be determined was whether section 65A exempted the television stations which carried the broadcast from the operation of section 52.  The ACCC argued that because of the arrangement made between the television stations and the two women to broadcast the program, the broadcast was not covered by the section 65A exemption.  The primary judge had held that the television channels were not exempt from the operation of section 52 in these circumstances.  The Full Court of the Federal Court, on the other hand, held that the benefit of the exemption did apply to the broadcasters.  The High Court granted special leave to the ACCC to appeal the decision of the Full Court.   A majority of members of the High Court considered that the primary judge had properly construed section 65A.  The exemption conferred by section 65A does not apply to situations in which a media outlet publishes matter in relation to goods or services where the publication is pursuant to an arrangement with a supplier of goods or services.   The High Court allowed the ACCC’s appeal, set aside the Full Court’s orders and restored the orders made by the primary judge.

The Queen v Edwards [2009] HCA 20 (21 May 2009)

The High Court has decided that a judge of the Supreme Court of Tasmania applied a wrong principle and took account of irrelevant issues when he granted a permanent stay of the trial of two pilots charged with reckless operation of an aircraft. The pilots’ trial will now proceed in the Supreme Court of Tasmania.

Captain Peter Edwards and First Officer Stephen Sarunic were the pilots in charge of a Qantas aircraft which arrived at Launceston Airport on 23 October 2001 to collect 70 passengers who had been stranded. The aircraft arrived at about 10.30pm and took off just after 11pm. The control tower was not staffed between 10pm and 6am, and the pilots themselves were responsible for turning on the runway lighting when arriving at and departing from the airport. While there was no issue concerning the runway lights when the plane landed, witnesses provided inconsistent statements about whether the runway lights were on or off when the aircraft taxied along the runway and took off. Electronic records, which could have assisted in determining whether the runway lights had been activated or whether the pilots had attempted to activate the runway lights, were overwritten before attempts were made to retrieve them.

CASA investigated the incident and in April 2002 referred the matter to the Commonwealth DPP. Complaints against the pilots were not sworn until March 2004. The pilots were committed for trial, but the trial had still not commenced by November 2006. In November 2007 their application for a permanent stay of the trial was heard by a judge of the Supreme Court of Tasmania. The High Court held that the primary judge had applied a test of whether, on the material before him, a continuation of the trial could constitute an unacceptable injustice or unfairness. The primary judge concluded that the factors of overall delay and lost evidence made it appropriate to grant the stay. The High Court granted the Commonwealth DPP special leave to appeal that decision.

In a unanimous decision the High Court confirmed that in exercising the discretion to grant a permanent stay of proceedings, a court should consider whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or whether continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.

The Court noted that it is not uncommon for trials to proceed despite the unavailability of relevant evidence and held that the loss of evidence did not prejudice the pilots. It concluded that no feature of the delay or loss of evidence justified the extreme step of permanently staying the proceedings. The Court set aside the order of the Supreme Court of Tasmania and dismissed the pilots’ application for a permanent stay.

Friend v Brooker [2009] HCA 21 (28 May 2009)

The High Court determined that a director of a company who borrowed from a third party to on-lend the money to the company could not claim contribution from a fellow director toward repaying the third party lender. The remedy of equitable contribution did not apply where there was no co-ordinate liability or common obligation on the part of the two directors.   In May 1977 Mr Frederick Brooker, a civil engineer, and his colleague, Mr Nicholas Friend, agreed that they would set up a construction business together. Although the business relationship was initially created as a partnership, they incorporated the company of Friend & Brooker Pty Ltd on 18 July 1977 to carry on the business. Each of Mr Friend and Mr Brooker was a shareholder and director of the company. Over the years they each obtained loans from family and friends which were then advanced as loans to the company, to ensure the company could continue to operate during periods of financial difficulty. The company’s indebtedness appeared in its books as debts due to either of the directors, Mr Friend or Mr Brooker.

In 1986 Mr Brooker obtained one such loan of $350,000 from SMK Investments Pty Ltd (the SMK loan). By December 1995, with the accrual of interest, the amount needed to repay the loan was $1.1 million.

The company ceased to trade in 1990 and was deregistered in 1996. Thereafter Mr Brooker and Mr Friend disputed the company accounts and who was responsible for repayment of various loans. In 2000 Mr Brooker filed a claim in the Supreme Court of NSW alleging that the company had been a corporate vehicle for the conduct of a partnership or joint venture between the two men. He sought the taking of a full account of the partnership and recovery for loss he had suffered because Mr Friend refused to make equal contribution to the repayment of his personal borrowings made for the purpose of the business. The primary judge dismissed the claim, having found no evidence to support Mr Brooker’s contentions that a partnership or joint venture existed. He considered the law concerning corporate insolvency should determine how the debts owed by the company were be dealt with.

Mr Brooker appealed to the NSW Court of Appeal and, in allowing the appeal, the majority considered that Mr Friend had an equitable duty to contribute equally to repayment of the SMK loan. The High Court granted special leave to Mr Friend to appeal from that decision.

In a unanimous decision, the High Court considered the equitable doctrine of contribution could not be extended to overcome the undisturbed findings of the primary judge that, after the company was created, Mr Brooker and Mr Friend were neither in a partnership nor a joint venture. Mr Brooker and Mr Friend had set up a corporate structure as the vehicle for their business enterprise and the consequences were that companies legislation determined how the debts owed by the company were to be dealt with. The Court also held that there was no fiduciary obligation requiring Mr Brooker and Mr Friend to be personally liable to each other for losses flowing from their personal borrowings. The Court allowed Mr Friend’s appeal and reinstated the decision of the primary judge.