The following summary notes of recent decisions of the High Court of Australia provide a brief overview of each case. For more detailed information, please consult the Reasons for Judgment which may be downloaded by clicking on the case name.

The following Judgments are summarised in this issue. The summary notes follow after this list:

• Ausnet Transmission Group Pty Ltd v Commissioner of Taxation [2015] HCA 25
• Police v Dunstall [2015] HCA 26
• Smith v the Queen [2015] HCA 27
• Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28

• Filippou v the Queen [2015] HCA 29

• AstraZeneca AB v Apotex Pty Ltd & Ors [2015] HCA 30

• Fuller-Lyons v New South Wales [2015] HCA 31
• Duncan v Independent Commission Against Corruption [2015] HCA 32
• Alcan Gove Pty Ltd v Zabic [2015] HCA 33
• McCloy & Ors v State of New South Wales & Anor [2015] HCA 34

• D’Arcy v Myriad Genetics Inc [2015] HCA 35

• PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36
• Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37
• The Queen v Beckett [2015] HCA 38
• North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia [2015] HCA 41

Ausnet Transmission Group Pty Ltd v Commissioner of Taxation [2015] HCA 25

On 5 August 2015 the High Court, by majority, dismissed an appeal from a decision of a Full Court of the Federal Court of Australia, which held that certain charges paid by the appellant were outgoings of a capital nature and therefore not tax deductible.

The appellant purchased the assets of a State-owned electricity transmission business, Power Net Victoria (“PNV”). The assets included an electricity transmission licence held by PNV which had been issued pursuant to Pt 12 of the Electricity Industry Act 1993 (Vic) (“the transmission licence”).

The Victorian Governor in Council, by Order made pursuant to s 163AA(1) of the Act, had imposed specified charges on the holder of the transmission licence. When the appellant became the holder of the transmission licence, it became liable to pay the charges by force of the Act. In addition, the relevant asset sale agreement expressly required that the appellant pay the charges to the State of Victoria and refrain from contesting their validity. Separately, it required the appellant to pay a specified “total purchase price” to PNV for its assets.

Section 8-1(2)(a) of the Income Tax Assessment Act 1997 (Cth) provides that a loss or outgoing of capital, or of a capital nature, is not tax deductible under that section. Relevantly, the appellant claimed that the payments of the specified charges were deductible from its assessable income. The respondent, the Commissioner of Taxation of the Commonwealth of Australia, disallowed the deductions claimed and the appellant’s subsequent objection.

At first instance, the Federal Court affirmed the Commissioner’s position. On appeal to a Full Court, the majority held that the specified charges were not deductible because they were of a capital nature and dismissed the appeal.

By grant of special leave, the appellant appealed to the High Court. By majority, the Court held that, from a practical and business point of view, the appellant assumed the liability to make the payments in order to acquire the transmission licence and the other assets of PNV. The payments of the charges were outgoings of a capital nature and were therefore not tax deductible.

Police v Dunstall [2015] HCA 26

On 5 August 2015 the High Court unanimously allowed an appeal from a decision of the Full Court of the Supreme Court of South Australia. The High Court held that, in dismissing a charge of drink-driving against the respondent, the Magistrates Court of South Australia had erroneously excluded evidence of the respondent’s breath analysis reading, and the Supreme Court of South Australia and the Full Court had erred in upholding that decision on appeal.

Section 47B(1)(a) of the Road Traffic Act 1961 (SA) makes it an offence for a person to drive a motor vehicle while the prescribed concentration of alcohol is present in his or her blood. Under certain conditions, the Act creates a presumption that the concentration of alcohol indicated by a breath analysing instrument as being present in the driver’s blood was the concentration of alcohol in the driver’s blood at the time of the breath analysis (“the presumption”). The presumption may only be rebutted if the defendant arranges for a sample of his or her blood to be taken by a medical practitioner in accordance with prescribed procedures and adduces evidence that analysis of the blood demonstrates that the breath analysing instrument gave an exaggerated reading.

The respondent was stopped by police while driving a motor vehicle. A breath analysing instrument recorded that the concentration of alcohol in his blood was 0.155 grams of alcohol per 100 millilitres, which was above the prescribed concentration. The respondent was supplied with a blood test kit and arranged for a sample of his blood to be taken by a medical practitioner. It was not possible to analyse the sample because the medical practitioner failed to take a sufficient quantity of blood.

The respondent was charged with an offence against s 47B(1)(a) of the Act, to which he pleaded not guilty in the Magistrates Court. The magistrate held that the breath analysis reading should be disregarded because the respondent, through no fault of his own, had lost his only opportunity to adduce evidence which may have rebutted the presumption. His Honour dismissed the charge.

The police appealed unsuccessfully to the Supreme Court and subsequently, by leave, to the Full Court. Both Courts held that it had been open to the magistrate to exclude the evidence of the breath analysis reading in the exercise of a “general unfairness discretion” to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the defendant in that it would make the trial unfair.

By grant of special leave, the police appealed to the High Court. In unanimously allowing the appeal, the Court held that admission of the evidence of the breath analysis reading would not make the respondent’s trial unfair in the relevant sense. The respondent did not have a statutory right to have a sample of blood taken and dealt with in accordance with the prescribed procedures; rather, the onus was upon him to bring himself within the confines of the rule allowing for rebuttal of the presumption. Having determined that the magistrate erred in excluding the evidence of the breath analysis reading, the Court held the appropriate course was to remit the matter for further hearing before the Magistrates Court.

Smith v the Queen [2015] HCA 27

On 5 August 2015 the High Court unanimously held that the appellant was not denied procedural fairness when the trial judge who had been informed of a jury’s interim votes for and against conviction did not disclose those votes or the voting pattern to counsel.

The appellant was tried on one count of rape in the District Court of Queensland in February 2014. During its deliberations, the jury sent three notes to the trial judge. The trial judge disclosed to counsel the precise contents of the first two notes.

The jury’s third note indicated that the jury could not agree on a unanimous verdict. It also stated two iterations of the jury’s interim votes for and against conviction. The trial judge informed counsel that the jury could not agree and that the note contained the jury’s interim voting patterns, but decided not to disclose the interim votes or voting patterns to counsel. Neither counsel objected.

At this point, the judge proposed to permit the jury to consider a majority verdict. Under s 59A of the Jury Act 1995 (Q) (“the Jury Act”), a trial judge has a discretion to permit a jury to return a majority verdict if, after a prescribed period of deliberation, the judge is satisfied that the jury is unlikely to reach a unanimous verdict. A trial judge also has a discretion to discharge a jury at any time under s 60 of the Jury Act.

The trial judge asked the jury if further time for deliberation would assist the jury to return a majority verdict. The jury indicated that it might. Accordingly, the trial judge permitted the jury to retire to consider a majority verdict. Neither counsel objected. The jury subsequently returned a guilty verdict by a majority of 11 to 1.

The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Queensland. He contended that he was denied procedural fairness when the judge failed to disclose the precise contents of the jury’s third note. He argued that the jury’s interim voting patterns were relevant to the trial judge’s discretion either to allow a majority verdict or to discharge the jury, and so ought to have been disclosed to counsel. The Court of Appeal dismissed the appellant’s appeal. By grant of special leave, the appellant appealed to the High Court.

The High Court unanimously dismissed the appeal, holding that there was no denial of procedural fairness. Procedural fairness requires that a trial judge disclose to counsel all information available to the trial judge but not available to counsel, where that information is relevant to an issue before the court. However, the jury’s interim votes and voting patterns were not and could not be relevant to an issue before the court because of the protean and changeable character of the jury’s deliberations. Nothing in the Jury Act otherwise made the interim votes and voting patterns relevant.

Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28

On 12 August 2015 the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales. The High Court held that declarations and orders made by the Federal Court of Australia in proceedings commenced by the Fair Work Ombudsman (“the Ombudsman”) against the respondent did not create an issue estoppel precluding the appellant from asserting that the respondent was not his employer in a subsequent proceeding.

The appellant was employed by the respondent to work in its abattoir. The appellant was later informed that his employment was at an end and that he would be employed by Tempus Holdings Pty Ltd, which would provide labour services to the respondent. The appellant was subsequently made redundant. He complained to the Ombudsman that certain statutory entitlements had not been paid to him and the Ombudsman commenced proceedings against the respondent in the Federal Court. The principal issue in those proceedings was whether the respondent or Tempus had been the appellant’s employer. The Federal Court declared that the respondent had been the appellant’s employer and ordered the respondent to pay the appellant’s entitlements.

The appellant subsequently commenced proceedings against the respondent in the District Court of New South Wales claiming damages in negligence for a personal injury he sustained while working at the abattoir. He contended that Tempus had been his employer, but that the respondent, as the party in control of the workplace, owed him a duty of care akin to that owed by an employer. If the respondent had been the appellant’s employer, the appellant would have been prevented from bringing the claim, or from recovering damages, by New South Wales legislation governing the management of, and limiting recovery for, workplace injuries. The respondent argued that the appellant was estopped by the declarations and orders made in the Federal Court proceedings from denying that the respondent was his employer or, alternatively, that the respondent was in fact the appellant’s employer.

The District Court rejected the respondent’s issue estoppel argument and found on the evidence that Tempus had been the appellant’s employer. On appeal, the Court of Appeal determined that the declarations and orders of the Federal Court created an estoppel binding on the appellant by reason of the appellant having been “privy” in interest with the Ombudsman in the Federal Court proceedings according to the principle stated by this Court in Ramsay v Pigram (1968) 118 CLR 271.

The High Court held that the Court of Appeal erred in concluding that the Ombudsman was the appellant’s privy in the Federal Court proceedings, as the Ombudsman was not enforcing payment of the appellant’s entitlements “under or through”, or “on behalf of”, the appellant. In commencing proceedings against the respondent, the Ombudsman was acting pursuant to his statutory power to enforce the Workplace Relations Act 1996 (Cth) and awards made under that Act. That power was not derived from the appellant or his entitlements, and, in exercising it, the Ombudsman was not representing the appellant’s legal interests. By majority, the High Court remitted the matter to the Court of Appeal for determination of an outstanding issue.

Filippou v the Queen [2015] HCA 29

On 12 August 2015 the High Court unanimously dismissed an appeal from the Court of Criminal Appeal of the Supreme Court of New South Wales (“the CCA”) against the convictions and sentence imposed upon the appellant, Christopher Angelo Filippou, for two counts of murder.

In 2010, the appellant shot and killed two brothers, Sam and Luke Willis. During a dispute, the brothers confronted the appellant outside his house. The appellant shot them at close range. The next day, the appellant admitted to police that he had killed the brothers. But he claimed that Luke Willis had pulled out the gun, and that he had taken the gun from Luke before shooting the brothers.

The appellant was charged with two counts of murder. To each count, he pleaded not guilty of murder but guilty of manslaughter by reason of provocation. He was tried before a judge of the Supreme Court of New South Wales, sitting without a jury. The sole issue at trial was provocation. The prosecution alleged that the appellant, not one of the brothers, brought the gun. The judge found that the allegation was not proved beyond reasonable doubt. Nevertheless, the judge found that there was no reasonable possibility that the appellant had lost self-control before he shot the brothers, and therefore the partial defence of provocation failed. The appellant was found guilty and convicted of both counts of murder.

In sentencing, the trial judge was neither satisfied beyond reasonable doubt that the appellant brought the gun nor satisfied on the balance of probabilities that one of the brothers brought the gun. The origin of the gun was, therefore, not proved to the standard required of either an aggravating factor or a mitigating factor in sentencing. Accordingly, the trial judge sentenced the appellant on the basis that the origin of the gun was unknown.

On appeal, the CCA held that the trial judge erred in fact as to the sequence of events before the killings, and possibly erred in law in directing herself as to the requirements of the partial defence of provocation, but that there was no miscarriage of justice because the appellant had been proved guilty beyond reasonable doubt of murder. The CCA found no error in the appellant’s sentence.

By grant of special leave, the appellant appealed to the High Court against his convictions and sentence. The Court unanimously dismissed the appeal. In relation to the appeal against conviction, the plurality held that the alleged errors of the trial judge were either not made out or of no consequence, and therefore there was no miscarriage of justice that would warrant allowing the appeal and remitting the matter to the CCA. On the appeal against sentence, the Court held that the judge was not bound to adopt the view of the facts most favourable to the appellant, and was therefore correct in sentencing on the basis that the origin of the gun was unknown.

AstraZeneca AB v Apotex Pty Ltd & Ors [2015] HCA 30

On 2 September 2015 the High Court unanimously held that a patent which disclosed a method of treatment for hypercholesterolemia was invalid because it lacked an inventive step within the meaning of s 7(2) and 7(3) of the Patents Act 1990 (Cth) (“the Act”).

Section 18(1)(b)(ii) of the Act provided as a requirement for a patentable invention that the invention must involve an inventive step. Sections 7(2) and 7(3) defined the condition on satisfaction of which an invention would not be taken to involve an inventive step. Relevantly, that condition was satisfied if the invention would have been obvious to a person skilled in the relevant art in light of the common general knowledge considered separately or together with prior art information publicly available in a single document before the priority date of the patent. The single document had to contain prior art information which could reasonably be expected to have been ascertained, understood and regarded by the skilled person, before the priority date, as relevant to work in the relevant art in the patent area.

The first appellant in each appeal is the registered proprietor of Australian Patent Number AU200023051 (“the Patent”). The second appellant is the exclusive licensee of the Patent. The Patent disclosed as a method of treatment for hypercholesterolemia the administration of rosuvastatin and its pharmaceutically acceptable salts at a starting dosage of 5-10 milligrams per day. The respondents supplied generic compounds using rosuvastatin at like dosages.

The appellants commenced proceedings in the Federal Court of Australia claiming infringement of the Patent by that supply and obtained interlocutory injunctions. The respondents sought revocation of the Patent. The primary judge found the Patent invalid on three grounds: that the appellants were not entitled to the Patent; that the invention disclosed in the Patent was not novel in light of two prior art publications; and that the invention disclosed in the Patent did not involve an inventive step and was obvious within the meaning of s 7(2) of the Act. The Full Court of the Federal Court of Australia overturned only the finding of lack of novelty and dismissed the appeals from the primary judge’s decision. On its appeals to the High Court, the appellants sought to agitate all grounds of invalidity which had been upheld by the Full Court. The respondents raised other issues by notice of contention.

The High Court unanimously dismissed the appeals on the basis that the invention claimed lacked an inventive step and was obvious in light of the common general knowledge together with either of the two prior art publications considered separately. It was unnecessary for the Court to consider the other ground of invalidity and issues raised in the notice of contention.

Fuller-Lyons v New South Wales [2015] HCA 31

On 2 September 2015 the High Court unanimously allowed an appeal from the Court of Appeal of the Supreme Court of New South Wales and restored the primary judge’s award of damages to the appellant.

In 2001, the appellant, who was then aged eight, suffered severe injuries when he fell from a train about two minutes after it departed from Morisset Station. By his representative, the appellant brought proceedings in the Supreme Court of New South Wales, claiming damages in negligence against the State of New South Wales (“the State”), the legal entity operating the rail network.

There was no direct evidence of how the appellant fell from the train. It was common ground that the appellant must have fallen through the front doors of the carriage in which he was travelling. The doors were fitted with electro-pneumatic locking motors which were centrally operated by the guard on the train. When the doors were locked, they could not be prised open. It followed that when the appellant fell, the doors could not have been locked, despite the guard having engaged the locking system before the train left Morisset Station.

The primary judge found that the only realistic means by which the appellant could have generated sufficient force against the pneumatic power of the locking motors to open the doors far enough to fall out was if he had his back to one door and he pushed with his arms or a leg against the other. The primary judge considered the most likely explanation for how the appellant came to be in this position was that he had been caught between the doors as they closed at Morisset Station, leaving part of his torso and at least one of his arms and legs outside the train. The primary judge held the State vicariously liable for the negligent failure of a railway employee to keep a proper lookout before signalling for the train to depart. The appellant was awarded $1,536,954.55 in damages.

The State successfully appealed against the finding of liability. The Court of Appeal accepted the primary judge’s inferential finding that, immediately before the fall, the appellant must have been positioned with his back to one door such that he could push against the opposing door. However, the Court of Appeal considered there were equally probable alternative hypotheses available to explain how the appellant came to be in that position which did not entail negligence on the part of railway staff.

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, finding that the Court of Appeal erred in overturning the primary judge’s ultimate factual finding. The Court of Appeal’s acceptance of the primary judge’s anterior factual findings left his Honour’s ultimate finding as the most likely inference “by a large measure”. It was a correct finding notwithstanding that other possible explanations could not be excluded. The Court also held that it was an error to reject the primary judge’s finding on the basis that the appellant had failed to exclude one alternative hypothesis that had not been explored in evidence.

Duncan v Independent Commission Against Corruption [2015] HCA 32

On 9 September 2015 the High Court unanimously dismissed an application seeking a declaration that Pt 13 of Sched 4 to the Independent Commission Against Corruption Act 1988 (NSW) (“the ICAC Act”) is invalid.

In July 2013, the respondent published a report containing findings that the applicant had engaged in “corrupt conduct” within the meaning of s 8(2) of the ICAC Act. The applicant commenced proceedings in the Supreme Court of New South Wales challenging the validity of those findings. His claim was dismissed by the primary judge. The applicant appealed to the Court of Appeal against that decision.

On 15 April 2015, prior to the determination of the Court of Appeal proceedings, the High Court delivered its judgment in Independent Commission Against Corruption v Cunneen [2015] HCA 14, holding that “corrupt conduct” within the respondent’s investigative jurisdiction under the ICAC Act does not encompass conduct which does not adversely affect the probity, even if it adversely affects the efficacy, of the exercise of the functions of a public official. It was common ground that the applicant’s conduct the subject of the respondent’s findings in the report did not affect the probity of the exercise of the functions of a public official. As a result, the applicant added to the grounds of his appeal the contention that the respondent lacked jurisdiction to make findings of corrupt conduct against him.

On 6 May 2015, the New South Wales Parliament enacted the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW), which added Pt 13 of Sched 4 to the ICAC Act. Pt 13 purports to ensure the validity of the respondent’s activities before 15 April 2015, notwithstanding the decision in Cunneen. The applicant sought a declaration from the Court of Appeal that Pt 13 is invalid. The applicant’s challenge to the validity of Pt 13 was removed to the High Court.

The High Court unanimously dismissed the application. The Court held that cll 34 and 35 of Pt 13 deem those acts done by the respondent before 15 April 2015 to be valid to the extent that they would have been valid if the definition of corrupt conduct in s 8(2) of the ICAC Act encompassed conduct which adversely affected the efficacy, but not the probity, of the exercise of official functions. A majority of the Court held that cll 34 and 35 of Pt 13 operate to effect an alteration in the substantive law as to what constitutes corrupt conduct, and the whole Court held that cll 34 and 35 of Pt 13 retrospectively confer jurisdiction upon the respondent. In doing so, the provisions attach new legal consequences and a new legal status to things done which otherwise would not have had such legal consequences or status.

Alcan Gove Pty Ltd v Zabic [2015] HCA 33

On 7 October 2015 the High Court published its reasons for dismissing an appeal from a decision of the Court of Appeal of the Northern Territory of Australia. The High Court unanimously held that the respondent was not statute-barred from suing the appellant in negligence in respect of mesothelioma he contracted as a result of inhaling asbestos fibres during his employment with the appellant.

The respondent was employed as a labourer at the appellant’s alumina refinery from 1974 to 1977. Around late 2013 or early 2014, he began to experience symptoms of mesothelioma.

The Workers Rehabilitation and Compensation Act (NT) (“the Act”) abolished common law actions in negligence with respect to certain workplace injuries and provided for limited statutory rights to compensation for injured workers. Sections 52(1) and 189(1) of the Act provided, in effect, that the respondent could not sue the appellant for damages in negligence unless his cause of action accrued before 1 January 1987.

The respondent commenced proceedings in the Supreme Court of the Northern Territory of Australia. The main issue in dispute was whether the respondent had suffered compensable damage before 1 January 1987. The evidence at trial was that the asbestos fibres that the respondent inhaled while working at the refinery caused changes to his mesothelial cells soon after the inhalation, which ultimately culminated in malignant mesothelioma. The changes to the cells were likely to have lain dormant until one to five years before the first manifestation of symptoms. At that point, an unknown “trigger” set off the development of abnormal genetic switches in the respondent’s mesothelial cells that resulted in malignancy.

The respondent’s claim was dismissed at trial, but the Court of Appeal allowed the respondent’s appeal. The Court of Appeal held that, with the benefit of hindsight, it was possible to infer that the mesothelial cell changes that occurred soon after exposure to asbestos between 1974 and 1977 led inevitably and inexorably to the onset of mesothelioma. The respondent’s cause of action therefore arose before 1 January 1987.

By grant of special leave, the appellant appealed to the High Court. On 12 August 2015, the High Court published an order dismissing the appeal. In its reasons published today, the Court unanimously held that, on the evidence given at trial, it could be inferred that the “trigger” which led to mesothelioma was present in the respondent’s mesothelial cells when the initial changes to the cells occurred. It followed that, because the mesothelial cell changes were bound to lead to mesothelioma, the respondent had suffered compensable damage at the time of the cell changes. His cause of action in negligence therefore arose before 1 January 1987 and his claim against the appellant was not barred by the Act.

McCloy & Ors v State of New South Wales & Anor [2015] HCA 34

On 7 October 2015 the High Court upheld the validity of certain provisions of the Election Funding, Expenditure and Disclosures Act 1981 (NSW) (“the EFED Act”), which impose caps on political donations, prohibit property developers from making such donations, and restrict indirect campaign contributions.

Division 2A of Pt 6 of the EFED Act (“Div 2A”) provides for general caps on the amount of political donations which a person can make to or for the benefit of a particular political party, elected member, group, candidate or third-party campaigner. Division 4A of Pt 6 (“Div 4A”) prohibits the making or acceptance, directly or indirectly, of a political donation by a “prohibited donor” or the soliciting of a person by or on behalf of a “prohibited donor” to make a political donation. “Prohibited donor” is defined to include “a property developer”. Section 96E prohibits the making or acceptance of “indirect campaign contributions”. Div 4A and s 96E apply in New South Wales to State and local government elections and to elected members of Parliament and councils. Div 2A applies only to State elections and elected members of Parliament.

The first and third plaintiffs are “property developers” and the second plaintiff made an “indirect campaign contribution” within the meaning of each expression in the EFED Act. Each of the plaintiffs intended, if permitted by law, to make donations in excess of the caps imposed by Div 2A. The plaintiffs brought proceedings in the original jurisdiction of the High Court, challenging the validity of Div 2A, Div 4A (as it applied to “property developers”) and s 96E on the basis that these provisions impermissibly burden the implied constitutional freedom of communication on governmental and political matters. They submitted that the impugned provisions burden the freedom of political communication by restricting the funds available to political parties and candidates to meet the costs of political communication, and further that the restrictions imposed upon the plaintiffs’ ability to gain access and make representations to politicians and political parties were also such a burden.

The High Court accepted that the impugned provisions indirectly burden political communication by restricting the funds available to political parties and candidates. However, the Court unanimously held that the burden imposed by the donation caps in Div 2A is not impermissible and the provisions are a legitimate means of pursuing the legitimate objective of removing the risk and perception of corruption and undue influence in New South Wales politics. The Court held that the provisions in fact enhance the system of representative government which the implied freedom of political communication protects. Section 96E was also held to be valid, on the basis that as an anti-avoidance provision its validity depends on that of Div 2A. By majority the Court held, taking note of a history of corruption in New South Wales, that the prohibition on donations by property developers in Div 4A is also valid.

D’Arcy v Myriad Genetics Inc [2015] HCA 35

On 7 October 2015 the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court of Australia. The High Court held that an isolated nucleic acid, coding for a BRCA1 protein, with specific variations from the norm that are indicative of susceptibility to breast cancer and ovarian cancer, was not a “patentable invention” within the meaning of s 18(1)(a) of the Patents Act 1990 (Cth) (“the Act”).

The term “nucleic acid” includes two kinds of molecules, deoxyribonucleic acid (DNA) and ribonucleic acid (RNA), which are found inside a human cell. A gene is a functional unit of DNA which encodes a particular protein produced by the cell. The protein produced depends on the sequence of nucleotides. The BRCA1 gene codes for the production of a protein called BRCA1.

The first respondent filed a patent which contained 30 claims. Relevantly, Claims 1 to 3 concerned a nucleic acid coding for a BRCA1 protein, and with one or more specified variations from the norm in its nucleotide sequence, isolated from its cellular environment. Those specified variations, characterised as mutations or polymorphisms, are indicative of susceptibility to breast cancer and ovarian cancer.

Section 18(1)(a) of the Act requires that, for an invention to be patentable, it must be “a manner of manufacture” within the meaning of s 6 of the Statute of Monopolies. The appellant commenced proceedings in the Federal Court of Australia challenging the validity of Claims 1 to 3 on the basis that the invention claimed did not meet the requirement of s 18(1)(a).

The primary judge dismissed the appellant’s challenge, holding that the invention fell within the concept of a “manner of manufacture”. The Full Court dismissed an appeal from that decision. The Full Court held that an isolated nucleic acid was chemically, structurally and functionally different from a nucleic acid inside a human cell. The invention was a manner of manufacture because an isolated nucleic acid with the characteristics specified in Claims 1 to 3 resulted in an artificially created state of affairs for economic benefit.

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that the invention claimed did not fall within the concept of a manner of manufacture. The Court held that, having regard to the relevant factors, an isolated nucleic acid, coding for the BRCA1 protein, with specified variations, is not a manner of manufacture. While the invention claimed might be, in a formal sense, a product of human action, it was the existence of the information stored in the relevant sequences that was an essential element of the invention as claimed. A plurality of the Court considered that to attribute patentability to the invention as claimed would involve an extension of the concept of a manner of manufacture which was not appropriate for judicial determination.

PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2015] HCA 36

On 14 October 2015 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of Western Australia. The High Court held that it is within the inherent power of the Supreme Court of Western Australia to make a freezing order in relation to an anticipated judgment of a foreign court which, when delivered, would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth) (“the Act”).

The appellant, a company incorporated in Indonesia, owns shares in the second respondent, a company incorporated in Australia. The first respondent is a company incorporated in Singapore. The appellant and the first respondent are parties to a joint venture agreement which is governed by the law of Singapore. The first respondent commenced a proceeding against the appellant in the High Court of Singapore, claiming, amongst other things, damages for breach of that agreement. That proceeding remains pending.

After commencing the Singaporean proceeding, the first respondent applied ex parte to the Supreme Court of Western Australia for freezing orders against the appellant and the second respondent in respect of the appellant’s shares in the second respondent. The application was made pursuant to O 52A of the Rules of the Supreme Court 1971 (WA) (“the Rules”). The Supreme Court made interim freezing orders. The appellant and the second respondent then commenced a separate proceeding in the original jurisdiction of the High Court seeking declaratory relief on the basis that the interim freezing orders were beyond power. That proceeding was remitted to the Supreme Court and determined concurrently with the first respondent’s application for continuation of the interim freezing orders. The primary judge dismissed the remitted proceeding, discharged the interim freezing order against the second respondent and continued the freezing order against the appellant. The primary judge made detailed findings of fact in relation to the continuation of the freezing order against the appellant, including that there was a real and sensible risk that any judgment by the High Court of Singapore in favour of the first respondent would remain unsatisfied. The Court of Appeal unanimously dismissed an appeal by the appellant from the orders of the primary judge.

On appeal to the High Court, the appellant accepted that the findings of the primary judge established a factual foundation for the continuation of the freezing order in accordance with the criteria set out in O 52A r 5 of the Rules, but contended that the Supreme Court lacked power to make a freezing order in accordance with those criteria. The High Court unanimously held that the power to make a freezing order in relation to an anticipated judgment of a foreign court, which when delivered would be registrable by order of the Supreme Court under the Act, is within the inherent power of the Supreme Court. The Court so held because the making of the freezing order is to protect a process of registration and enforcement in the Supreme Court which is in prospect of being invoked. The Court determined that the criteria set out in O 52A r 5 of the Rules are appropriately tailored to the exercise of that inherent power.

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37

On 14 October 2015 the High Court unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of New South Wales (“NSWCA”) in Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited and unanimously allowed an appeal from the NSWCA in Wright Prospecting Pty Limited v Mount Bruce Mining Pty Limited. The High Court held that Mount Bruce Mining Pty Limited (“MBM”) is liable to pay royalties to Wright Prospecting Pty Limited and Hancock Prospecting Pty Limited (together, “Hanwright”) in respect of iron ore mined in two areas of the Pilbara region of Western Australia known as “Eastern Range” and “Channar”.

Hanwright, MBM and Hamersley Iron Pty Limited entered into an agreement dated 5 May 1970, which, among other things, concerned the payment of royalties by MBM in relation to iron ore mined from areas of land the subject of the agreement (“the 1970 Agreement”). Pursuant to cl 2.2 of the 1970 Agreement, MBM acquired from Hanwright the “entire rights” to the “MBM area”, a term defined by reference to certain “temporary reserves” granted under the Mining Act 1904 (WA). Under cl 3.1 of the 1970 Agreement, royalties were payable to Hanwright on “[o]re won by MBM from the MBM area”. The obligation to pay royalties extended to “all persons or corporations deriving title through or under” MBM to the “MBM area”.

MBM claimed that the term “MBM area” did not refer to an area of land to which rights of occupancy had been transferred to MBM; rather, it referred to the rights themselves. The consequence of this construction would be that Eastern Range and Channar did not fall within the “MBM area” and royalties would not be payable on iron ore extracted therefrom. If MBM’s construction of the term “MBM area” was incorrect, MBM claimed that royalties were, in any event, not payable in respect of iron ore extracted from a part of Channar (referred to as “Channar A”) because such ore was not extracted by entities “deriving title through or under” MBM.

The Supreme Court of New South Wales rejected MBM’s claims and held that royalties were payable in respect of iron ore extracted from both Eastern Range and Channar. On appeal, the NSWCA held that royalties were payable in respect of Eastern Range but not Channar A. By grant of special leave, each of the parties appealed to the High Court.

The High Court held that the term “MBM area” referred to the physical area of land that had been transferred to MBM and was not limited to the rights under the tenements that affected that land at the time of the 1970 Agreement. The Court further held that iron ore was being won from Channar A by entities “deriving title through or under” MBM. The exploitation of Channar A was carried on under a title the derivation of which was facilitated by the deployment by MBM of its own title.

The Queen v Beckett [2015] HCA 38

On 23 October 2015 the High Court unanimously allowed an appeal against orders of the Court of Criminal Appeal of the Supreme Court of New South Wales (“the CCA”) that permanently stayed the prosecution of the respondent for an offence under s 319 of the Crimes Act 1900 (NSW) (“the Act”). The High Court set aside the orders of the CCA, enabling the prosecution of the respondent to proceed.

The respondent is a solicitor who was approved by the Chief Commissioner of State Revenue to electronically lodge certain tax returns and payments, including stamp duty. She was authorised to stamp transfers of real property using accountable stamps on the condition that the duty payable in respect of a transfer was available to her prior to processing the relevant transaction online. On 11 June 2010, the respondent stamped a transfer and completed an online assessment of duty payable for the conveyance of a unit. The duty was not paid to the Office of State Revenue (“OSR”), to which it was payable.

As part of the OSR’s investigation into the outstanding duty, the respondent attended a compelled interview conducted by investigators from the OSR. It is alleged that, during the interview, the respondent produced photocopies of two forged bank cheques and made false statements to the investigators, with a view to concealing the true facts and thereby preventing her prosecution for one or more offences under taxation law.

Section 319 of the Act makes it an offence for a person to do any act, or make any omission, intending in any way to pervert the course of justice. The respondent was arraigned in the District Court of New South Wales on an indictment which charged her with an offence under s 319. By notice of motion dated 4 December 2013, the respondent sought to quash the indictment or to stay the proceedings against her permanently. The respondent contended that there was no “course of justice” in existence at the time of the impugned conduct, that is, during the interview. Sweeney DCJ dismissed the respondent’s motion. Her Honour held that a prosecution for an offence under s 319 could be maintained notwithstanding that no judicial proceedings had been commenced at the time of the impugned conduct.

The respondent appealed to the CCA on numerous grounds. The CCA determined that Sweeney DCJ was wrong to conclude that the s 319 prosecution could proceed. Their Honours held that the impugned conduct occurred before the jurisdiction of a court or competent judicial tribunal was invoked and was, therefore, incapable of constituting an offence under s 319. The prosecution for the s 319 offence was permanently stayed and the respondent’s other grounds of appeal were dismissed.

By grant of special leave, the appellant appealed to the High Court. The Court unanimously allowed the appeal, holding that an act done before the commencement of judicial proceedings may constitute an offence contrary to s 319 where it is done with intent to frustrate or deflect the course of judicial proceedings that the accused contemplates may possibly be instituted. Liability for the offence hinges on the intention to pervert the course of justice and not upon the perversion of a course of justice already in existence.

North Australian Aboriginal Justice Agency Limited & Anor v Northern Territory of Australia [2015] HCA 41

On 11 December 2015, the High Court, by majority, dismissed an application for a declaration that Div 4AA of Pt VII of the Police Administration Act (NT) (“the Act”) is invalid.

Section 133AB(1) of the Act, which appears in Div 4AA, provides that the section applies if a member of the Police Force has arrested a person without a warrant in accordance with s 123 because the member believed on reasonable grounds that the person had committed, was committing or was about to commit an infringement notice offence. Section 133AB(2) provides that the member may take the person into custody and hold him or her for a period of up to four hours or, if the person is intoxicated, until the member reasonably believes that the person is no longer intoxicated. Section 133AB(3) provides that at the expiry of the relevant period in sub-s (2), the member may release the person unconditionally, with an infringement notice or on bail, or may bring the person before a justice of the peace or court. The first plaintiff provides legal services to Aboriginal and Torres Strait Islander persons in the Northern Territory. The second plaintiff, an Aboriginal person resident in the Northern Territory, was arrested by members of the Northern Territory Police Force in Katherine on 19 March 2015 and was detained pursuant to Div 4AA for a period of close to 12 hours. The first plaintiff commenced proceedings in the original jurisdiction of the High Court, joined by the second plaintiff. The plaintiffs sought a declaration that Div 4AA is invalid. The plaintiffs contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which are penal or punitive in character, and that this is beyond the legislative power of the Northern Territory because that power is subject to the same doctrine of the separation of judicial power which limits the legislative power of the Commonwealth. The plaintiffs also contended that Div 4AA is invalid because it confers powers on the Northern Territory Executive which undermine or interfere with the institutional integrity of the Northern Territory courts. The parties agreed a special case which asked the Court to determine whether Div 4AA of Pt VII is invalid.

The High Court, by majority, held that Div 4AA is valid. A majority of the Court held that, upon the proper construction of Div 4AA, the powers it confers on members of the Police Force are not penal or punitive in character and do not impair, undermine or detract from the institutional integrity of the Northern Territory courts. Div 4AA, properly construed, does not authorise members of the Police Force to detain a person for longer than is reasonably practicable for them to make a determination about which one of the options under s 133AB(3) is to be exercised. The Court ordered that the matter be referred to a single Justice for further directions.

CIVIL APPEALS

Walker & Anor v Brimblecombe [2015] QCA 232 (15/2990) Chief Justice and Gotterson JA and Ann Lyons J 17/11/2015

DEFAMATION — ACTIONS FOR DEFAMATION — OTHER PROCEEDINGS BEFORE TRIAL — OTHER MATTERS — where the respondent commenced a proceeding for defamation against the appellants concerning a matter published in an email to shareholders in a company and in a document attached to said email — where the email and document were republished to ASIC — where the appellants were unsuccessful in seeking to have the claim and statement of claim struck out — where the appellants’ solicitors, Bennet & Philp and McBride Legal filed a signed “Notice of Appeal” on behalf of the appellants in March 2015 — where the document is not in Form 64 and a separate application for leave to appeal has not been filed — whether the document filed should be treated as a composite Leave to Appeal and Notice of Appeal

DEFAMATION — ACTIONS FOR DEFAMATION — OTHER PROCEEDINGS BEFORE TRIAL — OTHER MATTERS — where the appellants submitted that the learned primary judge was asked to make a preliminary determination whether in fact the republication was defamatory of the respondent — where this submission is erroneous — where consistent with Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 it was not necessary to determine that question in order to determine whether to strike out the proceeding — where the relevant enquiry was as to whether relevant minds might possibly differ on the issue of capability of bearing a defamatory meaning — where a preliminary determination of the question alone would not necessarily have determined the fate of the proceeding — whether there has been an appealable error

DEFAMATION — ACTIONS FOR DEFAMATION — OTHER PROCEEDINGS BEFORE TRIAL — OTHER MATTERS — where the appellants submit that his Honour should have held that absent any allegation of malice on the part of Quantum Power, the republication by it attracts defences of qualified privilege which are available to the appellants notwithstanding the alleged malice on their part in publishing in the first instance — where the arguments, as framed here, have not crystallised as a question for determination whether a defence of qualified privilege is ever available to an original publisher in respect of a republication where the original publisher acts without malice — where the parties have not been able to identify any judicial decision in which this question has been considered and decided — where judicial statements indicate that it is the fact that a person is actuated to publish defamatory matter by a desire to injure another which operates to deprive the person of a defence of qualified privilege — where since malice in making the original publication here has been alleged and is deemed not to be admitted, his Honour was correct to hold that there is a need for a trial on that issue — where if malice is proved, it may defeat the appellant’s reliance upon qualified privilege — whether the challenge on this ground must be rejected

Mules v Ferguson [2015] QCA 233 (14/3754) Margaret McMurdo P and Applegarth and Boddice JJ 17/11/2015

PROCEDURE — COSTS — DEPARTING FROM THE GENERAL RULE — ORDER FOR COSTS ON AN INDEMNITY BASIS — where the appellant was successful on appeal — where the appellant sought an order that the respondent pay the appellant’s costs of the action on an indemnity basis, and the appellant’s costs of the appeal on an indemnity basis — where the respondent did not make any submissions as to costs — where the plaintiff made a formal offer to settle under Chapter 9 Part 5 of the Uniform Civil Procedure Rules 1999 (Qld) for a sum significantly less than the judgment sum — whether the respondent ought to pay the appellant’s costs of the action on an indemnity basis, and the appellant’s costs of the appeal on an indemnity basis

Nelson v Cyran [2015] QCA 226 (14/10948) Margaret McMurdo P and Morrison JA and North J 13/11/2015

PROCEDURE — JUDGMENTS AND ORDERS — ENFORCEMENT OF JUDGMENTS AND ORDERS — EXECUTION AGAINST THE PERSON — QUEENSLAND — GENERALLY — where the appellant, while working as a bouncer in Western Australia, caused the respondent catastrophic brain injury — where the Western Australian District Court awarded judgment in favour of the respondent — where the appellant’s employer and the relevant insurance company, who were parties to the proceedings, went into liquidation — where the appellant was initially represented in the proceedings through his solicitors but did not appear at the trial and his whereabouts became unknown — where the respondent’s efforts to locate the appellant were constrained by the respondent’s financial position and other factors — whether the trial judge erred in the exercise of his discretion in granting the respondent leave to commence enforcement proceedings against the appellant

Francis v Crime and Corruption Commission & Anor [2015] QCA 218 (15/2450) Fraser and Morrison JJA and Mullins J 06/11/2015

JUDICIAL REVIEW — GROUNDS OF REVIEW — UNREASONABLENESS — where the applicant seeks to appeal the decision of the appeal tribunal of the Queensland Civil and Administrative Tribunal (“QCAT”) dismissing him from the Queensland Police Service — where the appeal tribunal held that no reasonable tribunal could have concluded that the sanction of dismissal should be suspended — where the applicant contends that the appeal tribunal misconstrued the QCAT member’s reasons — where the applicant contends that the appeal tribunal failed to take into account the applicant’s conduct and post-suspension performance — whether the QCAT member’s decision was so unreasonable that it lacked an evident and intelligible justification

POLICE — INTERNAL ADMINISTRATION — DISCIPLINE AND DISMISSAL FOR MISCONDUCT — QUEENSLAND — where the applicant was formerly a member of the Queensland Police Service — where the applicant had engaged in improper conduct on multiple occasions — where the second respondent imposed the sanction of reduction in salary for Matters 1 and 3 and suspension from the Police Service for 12 months with no entitlement to salary, entitlement or accumulation of leave for Matter 2 — where the first respondent applied to the Queensland Civil and Administrative Tribunal (“QCAT”) for a review of this decision — where a QCAT member confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2, and instead imposed a 12 month suspension, reduction in rank and dismissal suspended for a period of three years — where the first respondent appealed to the QCAT appeal tribunal — where the appeal tribunal concluded that as a matter of law, the QCAT member’s decision was unreasonable — where the appeal tribunal confirmed the sanction in relation to Matters 1 and 3, but set aside the sanction imposed for Matter 2 and instead imposed the sanction of dismissal — whether the purposes of police discipline would be defeated by a decision to allow the applicant to remain in the police force

Nichols v Earth Spirit Home Pty Ltd [2015] QCA 219 (14/9842) Margaret McMurdo P and Philippides JA and Boddice J 06/11/2015

CONTRACTS — BUILDING, ENGINEERING AND RELATED CONTRACTS — THE CONTRACT — LEGALITY — where the applicant sought leave to appeal against a decision of the Queensland Civil and Administrative Tribunal, in its appellate jurisdiction, upholding a decision at first instance to enforce an entirely oral building contract between the applicant and the respondent — whether a wholly oral building contract is enforceable, having regard to certain provisions of the Queensland Building and Construction Commission Act 1991 (Qld) which provided that a person who entered into non-written contracts for building work above a prescribed amount committed an offence, and related public policy considerations — whether the respondent was entitled to recover the judgment sum on a restitutionary basis

Albrecht v Ainsworth & Ors [2015] QCA 220 (14/10847) Margaret McMurdo P and Morrison JA and Martin J 06/11/2015

PROCEDURE — INFERIOR COURTS — QUEENSLAND — QUEENSLAND CIVIL AND ADMINISTRATIVE APPEAL TRIBUNAL — where the applicant and the respondents are owners of homes in an architectural award-winning multi-dwelling complex, Viridian — where the applicant wanted to extend the deck area of his home — where the applicant could do so only if the body corporate, in an extraordinary general meeting, approved the proposal in his motion without dissent and granted him exclusive use of the common property airspace between his existing deck spaces — where at the extraordinary general meeting, seven of the 23 owners voted for the motion, seven voted against, one abstained, and the remainder did not vote — where the applicant applied for a referral to an adjudicator and sought orders that effect be given to his motion — where the question for the adjudicator was whether the respondents’ opposition to the motion was unreasonable in the circumstances and whether the body corporate acted reasonably in refusing to give its approval — where the adjudicator granted his application and made the relevant orders, giving effect to the motion — where the respondents appealed from those orders to QCATA — where QCATA allowed the appeal and set aside the adjudicator’s orders — where the applicant has applied for leave to appeal to this Court contending that the appeal to QCATA should have been dismissed — where the appeal to QCATA was on a question of law only, and not an appeal by way of rehearing — where the applicant contends that QCATA erred in not clearly identifying the errors of law allegedly made by the adjudicator — where the applicant contends that questions of reasonableness and unreasonableness were questions of fact and it was not open to QCATA to review the correctness of the adjudicator’s fact finding, except on orthodox administrative law grounds — where the applicant contends that QCATA conducted an impermissible merits review — whether QCATA erred in identifying errors of law in the adjudicator’s reasons — whether the application for leave to appeal should be granted — whether the appeal should be allowed

Interlink Australia Pty Ltd v Lowe [2015] QCA 211 (14/8585) Gotterson and Morrison JJA and Dalton J 30/10/2015

APPEAL AND NEW TRIAL — CONVEYANCING — THE CONTRACT AND CONDITIONS OF SALE — CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS — IMPLIED TERMS — where the respondent’s home was situated on two adjoining lots — where the appellant sought to purchase the lots from the respondent — where the appellant only required one lot to build a display home, but was content to buy both lots on the basis they would build a display home on one lot and keep the second for an investment — where the intention of the appellant was that the contracts would be in two different names, Interlink Australia Pty Ltd and Interlink Holdings Pty Ltd — where the two executed contracts were mistakenly both in the name of the company — where the appellant sought to have one of the contracts amended to be in the name of the holding company, and also sought that the respondent have the lots split via the title office — where the respondent refused these requests — where initially the appellant sought performance of both contracts, but at trial sought for specific performance of only one contract, or damages in the alternative — where the trial judge found that subjective intention at the time the contracts were signed was that both lots would be sold together — whether it was the subjective intention of the parties, objectively ascertained, that the contracts be interdependent — whether a term as to contemporaneous settlements should be implied — whether the trial judge gave adequate reasons

Kencian & Anor v Watney [2015] QCA 212; [2015]44 QLR (14/12293) Carmody CJ and Morrison JA and Boddice J 30/10/2015

APPEAL AND NEW TRIAL — DEFAMATION — ACTIONS FOR DEFAMATION — TRIAL — TRIAL BY JURY — FUNCTIONS OF JUDGE AND JURY — IN GENERAL — where the respondent was a school principal at a school attended by the children of the appellants — where the respondent claims that he was defamed by the appellants — where the respondent started proceedings claiming damages for defamation — where the respondent’s Amended Statement of Claim included an election for trial by jury — where the appellants defended the claim — where the appellants signed a request for trial date and sent it to the respondent’s solicitors to action — where the respondent’s solicitors returned the form without ticking Item G, the relevant box for the trial by jury election — where the appellants commenced correspondence regarding this — where the respondent’s solicitors responded that they had been instructed to give up the right to have a trial by jury, by not paying the fees — where the appellants sought orders: compelling the respondent to adhere to his election for trial by jury by paying the fees; or permitting them to do so and allowing those fees to be recovered at the end of the trial; or ordering a trial by jury on the basis that they were entitled to elect for such a trial but had not done so — where the learned primary judge dismissed that application — where the appellant seeks to challenge that decision — whether a party who elects for trial by jury can abandon that election, by refusal to pay the jury fees, in the absence of a court order — whether a trial by jury should have been ordered under Uniform Civil Procedure Rules 1999 (Qld) r 475

Summary Notes

General Civil Appeal — Civil Procedure — Juries — where the respondent was a school principal at a school attended by the children of the appellants — where the respondent claims that he was defamed by the appellants — where the respondent started proceedings claiming damages for defamation — where the respondent’s Amended Statement of Claim included an election for trial by jury — where the appellants defended the claim — where the appellants signed a request for trial date and sent it to the respondent’s solicitors to action — where the respondent’s solicitors returned the form without ticking Item G, the relevant box for the trial by jury election — where the appellants commenced correspondence regarding this — where the respondent’s solicitors responded that they had been instructed to give up the right to have a trial by jury, by not paying the fees — where the appellants sought orders: compelling the respondent to adhere to his election for trial by jury by paying the fees; or permitting them to do so and allowing those fees to be recovered at the end of the trial; or ordering a trial by jury on the basis that they were entitled to elect for such a trial but had not done so — where the learned primary judge dismissed that application — where the appellant seeks to challenge that decision — whether a party who elects for trial by jury can abandon that election, by refusal to pay the jury fees, in the absence of a court order — whether a trial by jury should have been ordered under Uniform Civil Procedure Rules 1999 (Qld), r 475 — where there are three basic defences: (i) no defamatory imputation, (ii) qualified privilege, and (iii) honest opinion — where it seems to be an overstatement to characterize the Reply as a “labyrinth of defences”, or to describe this trial as more burdensome than the average defamation trial — where juries in defamation cases are called upon to decide questions of fact, namely whether the imputations pleaded are conveyed, whether or not the publication is defamatory in the sense complained of, and whether the publication has been defended under defences such as truth, honest opinion or fair report — where the relevant defence here is honest opinion — where the learned primary judge has overstated the extent and impact of the defences, and, for that reason, has proceeded on a mistake as to the facts, or allowed irrelevant matters to guide or affect him. Appeal allowed. Orders made on 17 December 2014 are set aside, and in lieu thereof it is ordered that pursuant to r 475(1) of the Uniform Civil Procedure Rules 1999 (Qld) the trial proceed as trial by jury at the appellants’ election. Costs.

Lindsay v McGrath [2015] QCA 206; [2015]44 QLR (14/9012) Gotterson and Philippides JJA and Boddice J 27/10/2015

SUCCESSION — MAKING OF A WILL — TESTAMENTARY CHARACTER — where the deceased made a Will with the Public Trustee in December 1986 but subsequently revoked that Will — where the appellant believed the deceased died without a last Will, the appellant applied for, and was granted, the Letters of Administration on the basis of an intestacy — where the appellant later located a five page hand-written document in a storage box containing items removed from the deceased’s family home — where the document was inside an envelope which was marked “The envelope contains the Will of”, and contained other personal and financial documents — where the appellant, in his role as administrator of the deceased’s estate, brought an application, seeking an order that the Court pronounce that document in solemn form as the deceased’s last Will — whether that document should be pronounced as the deceased’s last Will

Woolworths v Perrins [2015] QCA 207; [2015]43 QLR (15/4917) Fraser and Gotterson JJA and McMeekin J 27/10/2015

TORTS — NEGLIGENCE — ESSENTIALS OF ACTION FOR NEGLIGENCE — DUTY OF CARE — WHERE NERVOUS SHOCK OR MENTAL DISORDER — where the respondent was employed by the appellant — where the respondent applied to take part in a management training programme during his employment — where the respondent was accepted into the programme then removed before the programme commenced — where the respondent made a second application for the management training programme the following year but was again removed before it commenced — where the respondent was diagnosed with “adjustment disorder with depressed mood”, “dissociative disorder”, and “substance abuse disorder” following his removal from the programme the second time — where the respondent had a history of drug abuse and depression — where the respondent had not indicated any factors which would negatively impact his performance when applying for employment — where the respondent gave evidence at trial that he had notified the appellant of his vulnerability to psychiatric injury — whether the fundamental findings of fact made by the trial judge should stand — whether the appellant was negligent — whether the appellant’s duty of care as an employer extended to avoiding psychiatric injury liable to be caused by insistence on meeting the criteria for promotion — whether appellant’s alleged breach of duty caused the respondent’s psychiatric injury — whether the respondent’s psychiatric injury was reasonably foreseeable

Summary Notes

General Civil Appeal — Torts — where the respondent was employed by the appellant — where the respondent applied to take part in a management training programme during his employment — where the respondent was accepted into the programme then removed before the programme commenced — where the respondent made a second application for the management training programme the following year but was again removed before it commenced — where the respondent was diagnosed with “adjustment disorder with depressed mood”, “dissociative disorder”, and “substance abuse disorder” following his removal from the programme the second time — where the respondent had a history of drug abuse and depression — where the respondent had not indicated any factors which would negatively impact his performance when applying for employment — where the respondent gave evidence at trial that he had notified the appellant of his vulnerability to psychiatric injury — whether the fundamental findings of fact made by the trial judge should stand — whether the appellant was negligent — whether the appellant’s duty of care as an employer extended to avoiding psychiatric injury liable to be caused by insistence on meeting the criteria for promotion — whether appellant’s alleged breach of duty caused the respondent’s psychiatric injury — whether the respondent’s psychiatric injury was reasonably foreseeable — where one examines the relevant facts pertaining here the employer could not have reasonably foreseen that by taking him off the course for trainee managers there was a risk of causing such mental anguish to Mr Perrins as to result in psychiatric decompensation — where it is not shown that Woolworths had notice of any vulnerability — where there was no prior complaint of this conduct over five years to any medical practitioner, there was no support from any other witness that the conduct had occurred, the one witness that Mr Perrins did identify as having knowledge of his complaints rejected the claim and was not challenged, the obvious opportunities to mention the matter to managers and medical practitioners were not availed of, and there was no pleading of the matter — where the acceptance of Mr Perrins’ allegations cannot be supported — where it seems obvious that the managers at Woolworths did not hold the view that Mr Perrins was unusually vulnerable to psychological stressors as he presumably would not have been offered the position if they detected any such thing — where having reached a very different view to the primary judge the case cannot be left without recording that his Honour was not greatly assisted by the way in which the plaintiff’s case was pleaded and argued — where the pleading seems to have raised a false issue and led to a failure to address fundamental questions of the duty owed, its breach and the causation of harm, despite the efforts of counsel for Woolworths to keep matters on track. Appeal allowed. Judgment below set aside. Judgment entered for the appellant. Costs

Schultz v Bank of Queensland Ltd [2015] QCA 208; [2015]43 QLR (15/616) Holmes CJ and Philippides JA and Boddice J 27/10/2015

EQUITY — GENERAL PRINCIPLES — UNCONSCIONABILITY, UNCONSCIONABLE DEALINGS AND OTHER FORMS OF EQUITABLE FRAUD — where the appellant purchased properties in Highgate Hill and Cotton Tree, both funded by bank loans and secured by registered mortgages — where the appellant was familiar with bank guarantees — where the appellant’s then husband inherited vacant land at Mudjimba Beach — where the appellant funded the building of the family home on that land by selling the Highgate Hill property, and was registered, with her husband, as a co-owner of the Mudjimba Beach property — where the appellant and her husband established a family trust — where the appellant entered into two guarantees, secured by the Cotton Tree and Mudjimba Beach properties, in return for the respondent loaning funds to the trust — where, in respect of those guarantees, the appellant did not receive independent legal advice and signed a waiver of the opportunity to seek and obtain that advice — where each waiver acknowledged the appellant understood the practical legal effect of the documentation and transaction, and the appellant confirmed she understood that if the borrower defaulted, the respondent would be entitled to sue the appellant, as guarantor, to recover the monies due to the respondent — where the appellant claimed she was a volunteer who did not understand the nature and effect of the transaction she entered into with the respondent — whether the trial Judge erred in dismissing the appellant’s claim for relief from her legal obligation to pay the respondent

CRIMINAL APPEALS

R v Wells [2015] QCA 230 (14/68) Holmes CJ and Morrison JA and Dalton J 17/11/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — APPEAL DISMISSED — where the appellant was convicted by a jury of raping the complainant — where the complainant and her friend, who were both under the influence of alcohol and marijuana, gave partly inconsistent versions of the events leading up to and following the rape — where a family friend of the complainant, who was under the influence of alcohol and painkillers, gave evidence which partly supported the complainant’s version — where the complainant’s mother, who consistently admitted to having a poor recollection, gave evidence which partly supported the complainant’s version — where the complainant, her mother and her friend all gave evidence that the complainant had said that during the offence she was pinned down to a trampoline and that following the offence the complainant was visibly upset — where the jury was in a position to assess the evidence of each of the witnesses in light of their relevant inhibitions at the time — whether the verdict was unreasonable or insupportable having regard to the evidence

APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — WHERE APPEAL DISMISSED — where the rape was alleged to have occurred on the night when the appellant and her friend were at the appellant’s house — where no other possible occasion was raised on the evidence as to when the rape would have occurred — where it was not suggested to the complainant that she may have confused the occasion on which the rape occurred — whether the trial judge erred in failing to direct the jury that they had to be satisfied that the rape occurred on the night that the complainant and her friend were at the appellant’s house

R v Stewart [2015] QCA 231 (14/208) Morrison JA and Atkinson and Applegarth JJ 17/11/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — where the appellant was convicted of murder — where the appellant was a drug user who had purchased drugs from the deceased on numerous occasions — where the appellant had run out of money and drugs — where the appellant was angry with the deceased for failing to provide a discount on an earlier drug transaction — where the appellant was in a psychotic and intoxicated state and broke into the deceased’s unit for the purpose of robbing him — where the appellant carried a metal bar with him and used it to assault the deceased in the course of prosecuting the robbery — whether the jury could be satisfied beyond a reasonable doubt that the appellant had the requisite intention to cause death or grievous bodily harm or to rob at the material time — whether the verdict was unreasonable

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — EFFECT OF MISDIRECTION OR NON-DIRECTION — where the trial judge directed the jury on the issue of the appellant’s alleged unlawful purpose — where the appellant contends that the trial judge erroneously directed the jury to consider the appellant’s intent at the time of entering the deceased’s unit rather than at the time of the assault — where the trial judge did not direct the jury on the definition of “robbery” — where the trial judge did not direct the jury on circumstantial evidence in respect of intent — whether the alleged misdirection and/or failures to direct resulted in a miscarriage of justice

R v CBN [2015] QCA 224 (14/268) Morrison JA and Mullins and Burns JJ 13/11/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — APPEAL DISMISSED — where the appellant was charged on indictment with one count of indecent treatment of a child under 16, under care, and two counts of rape — where the complainant was the niece of the appellant — where the complainant gave evidence about a separate and uncharged act of indecent treatment by the appellant — where one count of rape was discontinued on the third day of trial — where the discontinued count and the uncharged act were relied on by the Crown as evidence of other discreditable conduct — where there were features of the complainant’s evidence which compelled the giving of a Robinson direction to the jury — where the appellant was convicted of one count of indecent treatment of a child under 16, under care, and one count of rape — where the appellant appealed against conviction on the basis that the verdicts were unreasonable or insupportable having regard to the evidence — whether it was open to the jury to be satisfied beyond reasonable doubt of the guilt of the appellant

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — WHERE APPEAL DISMISSED — where the appellant also appealed on the ground that the jury was misdirected as to the standard of proof required before they could act upon evidence of “other discreditable conduct” — where there was no application for redirections at the conclusion of the summing-up — whether there was any error in the directions given to the jury

R v Brown [2015] QCA 225 (14/315) Margaret McMurdo P and Gotterson and Morrison JJA 13/11/2015

APPEAL AND NEW TRIAL — PROCEDURE — NOTICES OF APPEAL — TIME FOR APPEAL AND EXTENSION THEREOF — where the application for leave to appeal was filed 11 months late — where the applicant’s only explanation for eight months of that delay was that his lawyers, at the time of his sentence, did not advise him that he could appeal — whether the explanation provided is adequate — whether an extension of time for leave to appeal should be granted

APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — OTHER MATTERS — where the applicant pleaded guilty to a number of drug related offences, including trafficking in methylamphetamine, MDMA and MDEA over a period of 19 months and was sentenced to nine years’ imprisonment for the trafficking — where the applicant’s offending was very serious and was committed, for the most part, while on bail — where the prosecutor, during sentencing submissions, informed the sentencing judge that MDMA is a Schedule 1 dangerous drug for the purpose of the Drugs Misuse Act 1986 (Qld) — where, in fact, MDMA was a Schedule 2 dangerous drug for a large part of the trafficking period — where the sentencing judge did not place emphasis on the types of drugs trafficked and, instead, focused on the nature, extent and seriousness of the offending — whether the sentence imposed on the trafficking count was manifestly excessive

R v Barker [2015] QCA 215 (14/300) Morrison and Philippides JJA and Carmody J 06/11/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE — OTHER CASES — where the applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine and three lesser drug offences and was sentenced to 10 years imprisonment for the trafficking — where police surveillance revealed a large number of wholesale supplies the applicant made but did not identify the amount of drugs sold in some of those transactions — where a search of the applicant’s home revealed $995,250.50 in concealed cash, which formed part of the applicant’s unexplained income — where the sentencing judge rejected the applicant’s explanation for the source of the cash and this finding was not challenged on appeal — whether the sentencing judge erred in finding that the unsourced cash was the proceeds of the applicant carrying on the business of trafficking — whether the sentence of 10 years imprisonment was manifestly excessive

R v Leedie [2015] QCA 216 (15/49) Gotterson JA and Philip McMurdo and Peter Lyons JJ 06/11/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — APPEAL DISMISSED — where the appellant was convicted of eight counts — where count 1 charged the appellant with an offence against s 355 of the Criminal Code (Qld), namely, deprivation of liberty — where counts 2, 3, 4, 6, 7 and 8 concerned offences against s 349 of the Code, namely, rape — where count 9 concerned an offence against s 320A(1) of the Code, namely, torture — where count 5 concerned an offence against section 350 of the Code, namely, attempted rape — where the jury found the appellant not guilty in relation to count 5 — where for each of counts 2, 3, 4, 6 and 8 the appellant was sentenced to twelve years’ imprisonment — where by virtue of s 161A(a) of the Penalties and Sentences Act 1992 (Qld), the appellant was convicted of serious violent offences in respect of each of those counts — where on counts 7 and 9 the appellant was sentenced to eight years’ imprisonment and on count 1 to twelve months’ imprisonment — where all prison terms are to be served concurrently — where the complainant attended the appellant’s house to engage in consensual sexual intercourse — where the appellant became aware of messages on the complainant’s phone between her and the appellant’s younger brother — where the appellant then began to deprive the complainant of her liberty and repeatedly assaulted, raped and tortured the complainant — where the appellant advances two grounds of appeal — where the first is that the convictions were unreasonable and unsupported by the evidence — whether the convictions were unreasonable and unsupported by the evidence

CRIMINAL LAW — APPEAL AND NEW TRIAL — INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE — OTHER CASES — where the second ground of appeal is that the learned trial judge erred in refusing to discharge the jury and order the complainant be further examined at the trial — whether the learned trial judge erred and a miscarriage of justice occurred as a consequence

R v RAU [2015] QCA 217 (14/305) Gotterson and Philippides JJA and Martin J 06/11/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — APPEAL DISMISSED — where the appellant was convicted after a trial of one count of exposing a child under 12 years to an indecent act and one count of indecent treatment of a child under 12 years — where the complainant child and her mother were the only two witnesses — where there were some alleged inconsistencies in the complainant’s evidence — where the trial judge gave directions as to the need to scrutinise the complainant’s evidence carefully — where the jury were aware of the substantial matters relevant to the complainant’s credit and reliability — whether the verdicts were unreasonable or insupportable having regard to the evidence

R v Nguyen [2015] QCA 205 (15/88) Fraser and Gotterson JJA and Dalton J 27/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where the applicant pleaded guilty to two counts of possession of dangerous drugs, namely methylamphetamine and 3,4-methylenedioxymethamphetamine — where the applicant was sentenced to imprisonment for a period of two years and six months — where the applicant was intercepted by police and found to be in possession of 13.051 grams of pure methylamphetamine as well as 0.441 grams of MDMA — where the learned sentencing judge made a finding that the methylamphetamine was to be used for a commercial purpose although his Honour was not prepared to make a positive finding that sales were to be made by the applicant himself — where the applicant was 27 years old at the time of offending, married and had two children — where the applicant had a previous conviction for trafficking in the dangerous drug heroin at the age of 17 — where the applicant submits that the sentence is manifestly excessive in that insufficient regard was given to the applicant’s psychological vulnerability in prison and to the strain placed on the applicant by his wife’s mental illness — where allied with these factors was a further submission that too much weight was placed upon the applicant’s prior offending — whether the sentence is manifestly excessive

R v BCY [2015] QCA 200 (15/143) Margaret McMurdo P and Morrison JA and Peter Lyons J 23/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — where the applicant pleaded guilty to two counts of taking an indecent photograph of a child under 16 years; four counts of indecently dealing with the child; and one count of making child exploitation material — where, on each count, the applicant was sentenced to a term of one year’s imprisonment, the terms to be served concurrently; suspended after four months, for an operational period of two years — where the sentencing judge referred to evidence of uncharged conduct described in a Schedule of Facts — where the nature of the applicant’s interest in the complainant, and that the conduct was not an “isolated lapse”, is apparent from the subject matter of the counts — where there was a real prospect that a victim impact statement described impacts that were, in part, not a product of the charged offences — where the charged conduct played a not insignificant role in the impacts described in the victim impact statement — whether the sentencing judge erred in considering evidence of uncharged conduct — whether the victim impact statement should be taken into account on sentencing

Summary Notes

Sentence Application — where the applicant pleaded guilty to two counts of taking an indecent photograph of a child under 16 years; four counts of indecently dealing with the child; and one count of making child exploitation material — where, on each count, the applicant was sentenced to a term of one year’s imprisonment, the terms to be served concurrently; suspended after four months, for an operational period of two years — where the sentencing judge referred to evidence of uncharged conduct described in a Schedule of Facts — where the nature of the applicant’s interest in the complainant, and that the conduct was not an “isolated lapse”, is apparent from the subject matter of the counts — where there was a real prospect that a victim impact statement described impacts that were, in part, not a product of the charged offences — where the charged conduct played a not insignificant role in the impacts described in the victim impact statement — whether the sentencing judge erred in considering evidence of uncharged conduct — whether the victim impact statement should be taken into account on sentencing — where a case where conduct is alleged to have continued over a period of nine and a half months, involving the relatively regular taking of photographs which qualifies as making child exploitation material, could not rationally be said to be a case where the conduct might be regarded as an “isolated lapse”, or the result of some momentary yielding to temptation — where it follows that criminal conduct of the applicant constituted by the taking of an indecent photograph of the complainant, outside the period specified in count 7, could not be relied upon for the purpose of determining sentence, unless it was the subject of a specific charge, as was the case with counts 1 and 2 — where accordingly the uncharged conduct of the applicant should be disregarded for the purpose of re-exercising the sentencing discretion — where no attempt is made to distinguish between the consequences of the charged conduct, and the consequences of the uncharged conduct, referred to in the victim impact statement — where it would be speculation to attempt to determine the extent to which the complainant would have suffered impacts only from the charged conduct, it seems sufficient to conclude that that conduct played a not insignificant role in the impacts described by the complainant — where in the present case, significant features are the age of the complainant; the fact that she was in her own home and usually in her own bedroom when the offences were committed; the period of time over which the offending occurred; the persistence and frequency of offending conduct the subject of count 7; and the contribution of the offending conduct to the impacts described by the complainant — where apart from the applicant’s relative youth, particularly when the offending began, and his timely pleas of guilty, significant mitigating features are the absence of any criminal history; the strong evidence of substantial efforts to rehabilitate himself; the very low risk of recidivism; the absence of any subsequent offending conduct over a period of more than nine years; the punishment inflicted by his Church; his remorse; his contributions to his Church community; and the fact that in the years subsequent to his offending he has established a business likely to be adversely affected by a period of incarceration. Application granted. Appeal allowed. Sentence imposed at first instance is varied by suspending the sentence forthwith. Sentence imposed at first instance is otherwise confirmed.

R v Simmons [2015] QCA 194 (15/22) Gotterson and Morrison JJA and Douglas J 16/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE — OTHER CASES — where at the conclusion of a trial over six days in the District Court at Brisbane the appellant was found guilty of the offence of rape (Count 2 on the indictment) — where the appellant was acquitted on Count 1 which alleged indecent assault of the same complainant — where a conviction was recorded and the appellant was sentenced to five years’ imprisonment — where four days of pre-sentence custody were declared to be time served and no orders were made suspending the sentence or fixing a parole eligibility date — where the appellant was 30 years old at the time of the alleged offending — where the appellant attended the Stock Exchange Hotel to have some drinks with friends — where at the hotel bar, the appellant met the complainant, who was then 22 years old, and her female flat mate — where the appellant had never met them before and he and the flat mate flirted — where at closing time, the three of them left and travelled by taxi to the unit where the complainant and her flat mate resided — where upon arrival at the unit, the complainant went to her room and changed into her sleeping clothes — where the appellant entered her room, asked her if she was “ok” and hugged her, which she reciprocated — where the appellant then tried to kiss the complainant and she pushed him away, telling him that she was “fine” and that he needed to leave the room — where the complainant went into the kitchen to make some toast and the appellant approached her from behind, placed his hands on her hips and pressed his hips against hers — where the complainant removed the appellant’s hands — where the appellant pressed up against her again and tried to kiss her neck and the complainant pushed him away, telling him that he needed to leave her alone; that he was there for her flat mate; and that she had a boyfriend — where at that point, the flat mate came into view and the appellant desisted — where the conduct in the kitchen formed the basis of Count 1 — where the complainant returned to her bedroom and called her boyfriend, to whom she complained about the appellant’s advances — where the complainant fell asleep on the phone — where the complainant said she fell asleep on her stomach with her left leg up, her head facing towards the left and the doona on top of her — where the complainant woke in the same position but with her pants pulled down from behind — where the complainant heard heavy breathing and felt someone inside her and behind her — where with apology to the court, the complainant described the person as “trying to fuck the shit out of me” — where the complainant turned around, saw the appellant and asked him what he was doing, asked him to get off her and then pushed him off her and told him to leave her alone — where the appellant got off her and left the room — where the appellant’s penetrative conduct formed the basis of Count 2 — where the appellant testified that upon reaching the unit he told both the complainant and her flat mate that he would sleep on the couch in the lounge room — where the appellant kept awake, hoping for a chance to have sex with the complainant after noting that she earlier rebuffed his advances but said “we can’t now” which he took as a signal of interest on her part in having sex with him so long as the flat mate did not know of it — where later, the flat mate emerged from her bedroom, approached the appellant and asked him to sleep with her — where at first, the appellant declined but then changed his mind and they went to the flat mate’s room and had sex in her bed — where the flat mate was still quite drunk and the appellant, discouraged, stopped short of ejaculation and then left the room — where the complainant was not aware of the sexual encounter between the appellant and her flat mate — where the appellant said that, later on, he went to the complainant’s room and knocked on the door and when there was no response he entered her bedroom — where the complainant was in a sitting position on her bed and looked as though she had fallen asleep while on the phone — where the appellant got into bed and the complainant stirred and appeared to wake up — where the complainant then rolled on to her side, facing away from him and the appellant followed her into a spooning position with his left arm across her body — where the appellant’s evidence noted that he then began caressing the complainant’s fingers and she gave a reciprocating response with her fingers — where the appellant started to kiss her on the neck and ear and the complainant moved her hips around and backed them up against him — where the appellant kissed her on the cheek and the lips and she responded to the kissing — where the appellant fondled her breasts and moved his hand from that area towards her vaginal area — where the complainant’s apparent receptiveness encouraged the appellant to remove his underwear and continue kissing her in the spooning position, then he began to move her shorts downwards — where the appellant moved onto his knees and was able to gain entry — where the appellant described the sexual intercourse which followed as lasting about two minutes and consisting of him thrusting into her with what he thought was “normal” vigour, and she thrusting back — where the appellant tried to resume kissing the complainant as he had before, but then a “strange reaction” occurred on her part: she immediately stopped her movements and began to tell him to get off her, he did, she grabbed her phone and started yelling at him and he put his underwear on and ran out of the room — where a s 590AA application to exclude the evidence of the sexual intercourse with the flat mate was initially granted but later overturned — whether the learned trial judge erred in overturning the s 590AA application

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — WHERE APPEAL DISMISSED — where the learned trial judge did not direct the jury as to the use that could be made of the first preliminary complainant by the complainant to her boyfriend on the telephone — whether the learned trial judge erred accordingly

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — WHERE APPEAL DISMISSED — where the learned trial judge did not direct the jury that the reasonable grounds for the appellant’s belief must be assessed in his particular circumstances — whether the learned trial judge erred accordingly

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — OTHER MATTERS — where the jury returned a verdict of not guilty on Count 1 but guilty on Count 2 — whether the conviction was unreasonable

R v Thiemann [2015] QCA 195 (15/117) Gotterson JA and Philip McMurdo and Peter Lyons JJ 16/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where the applicant was sentenced to serve various terms of imprisonment to be served concurrently with each other but cumulatively upon an existing period of imprisonment — whether the resulting sentences were manifestly excessive — where the sentence imposed for one offence against s 75(1)(b) of the Criminal Code had to be ordered to be served cumulatively by operation s 156A of the Penalties and Sentences Act 1992 (Qld) — where the sentencing judge’s reasons indicated an intention to make the order that the offence against s 75(1)(b) be served cumulatively but did not indicate an intention that the other sentences be served cumulatively — where the other offences were not required to be served cumulatively — apparent inconsistency between the sentencing judge’s reasons and the orders recorded in relation to whether all terms were to be served cumulatively — where, absent an order or any intention expressed in the sentencing judge’s reasons of an intention to make each of the terms cumulative upon the existing period, the sentences were to be served concurrently: Penalties and Sentences Act 1992 (Qld) s 155

R v Ali [2015] QCA 191 (15/104) Gotterson JA and Philip McMurdo and Peter Lyons JJ 13/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — MISCARRIAGE OF JUSTICE — PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE — MISDIRECTION OR NON-DIRECTION — NON-DIRECTION — where the Court made orders allowing an appeal by the appellant against his conviction of an offence against s 210(1)(a) of the Criminal Code (Qld) — where the count on which the appellant was convicted alleged that he unlawfully and indecently dealt with a teenage boy who was then 14 years old — where the appellant was sentenced to release on entering into a recognisance in the amount of $200 on the condition that he keep the peace and be of good behaviour for two years — where on appeal this Court ordered that the appellant’s conviction be set aside and that there should be a retrial on the count — where the complainant’s evidence was that he was visiting the Ipswich City Library with his family — where the complainant was searching through the aisles — where the complainant noticed a man of Indian appearance, the appellant, sitting in a lounge area, staring at him and being “really creepy” — where the complainant noticed the appellant in the same aisle — where the appellant asked the complainant his name and offered his right hand to him for a handshake — where whilst the appellant was speaking to the complainant, the appellant started to feel and touch his pants in the groin area with his right hand — where it seemed to the complainant that the appellant’s penis was erect underneath his pants — where the appellant asked the complainant for the time — where the complainant checked on his mobile phone and told the appellant the time that he saw displayed — where the appellant said that that was the wrong time and that the complainant should accompany him back to his car so that he could show him the right time — where the complainant was uneasy because he could see that the appellant had his own iPhone with him — where the complainant walked away from the appellant — where the complainant resumed looking for books in the aisles — where the appellant approached the complainant a second time and again offered his hand — where the appellant kept asking if he could drive the complainant home or if the complainant could go back to the appellant’s place — where the appellant put his hands around the complainant’s waist and put his head on the complainant’s shoulder and tried to kiss his neck — where the complainant could feel the appellant rubbing his penis against the complainant’s body — where the complainant found his father and made a complaint to him — where the complainant’s father went searching for the person, the subject of the complaint, but was unable to find him — where at trial the complainant’s reliability was challenged — where during the jury’s deliberations they sent a note that they wished to hear again the evidence of what the complainant had told the male police officer and view the complainant’s evidence in court — where the learned trial judge read the evidence the male police officer gave from his notes of his interview with the complainant and the answers the police officer gave to questions in cross-examination — where arrangements were made for the recordings of the s 93A interview and the s 21AK cross-examination of the complainant to be shown to the jury — where, during the playing of the interview, there was a short adjournment and the jury sent a note saying they did not need to be shown the complainant’s cross-examination — where consequently, the jury were not again shown the recording of the complainant’s s 21AK evidence, specifically the cross-examination of the complainant contained in it — where the appellant contended that in the interests of fairness it was necessary for the learned trial judge to remind the jury of the matters put to the complainant during cross-examination which he accepted — whether the failure of the learned trial judge to direct the jury accordingly occasioned a substantial miscarriage of justice

R v BCX [2015] QCA 188 (15/24) Margaret McMurdo P and Philippides JA and Burns J 09/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where the applicant pleaded guilty to one count of making child exploitation material and two counts of indecent treatment of a child under the age of 16 years with a circumstance of aggravation, that is, that the child was under 12 years — where the applicant was sentenced to six months’ imprisonment for making child exploitation material and 18 months’ imprisonment (suspended after serving six months for an operational period of two years) for the indecent treatment counts, to be served concurrently — where the applicant appealed on the ground that the sentencing judge erred in not making a finding of “exceptional circumstances” under s 9(4) of the Penalties and Sentences Act 1992 (Qld) — where the applicant also appealed on the ground that the sentences imposed were, irrespective of any finding of “exceptional circumstances”, manifestly excessive in all of the circumstances — whether the sentencing judge erred in not making a finding of “exceptional circumstances” — whether the sentences were manifestly excessive

R v Armstrong [2015] QCA 189 (15/43) Holmes CJ and Philip McMurdo and Peter Lyons JJ 09/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — MISDIRECTION AND NON-DIRECTION — whether the appellant was wrongly deprived of the opportunity to conduct his own cross-examination of the complainant — where the appellant argued he was wrongly charged under s 359E and that the complainant was incorrectly classified as a protected witness under s 21N of the Evidence Act 1977 (Qld) — where the trial judge had no discretion to order otherwise and the appellant’s argument misunderstood the effect of s 359E

CRIMINAL LAW — APPEAL AND NEW TRIAL — MISDIRECTION AND NON-DIRECTION — PRESENTATION OF CROWN CASE — whether the prosecutor misled the court by stating that all persons charged with unlawful stalking are charged under s 359E of the Criminal Code or through inaccurate comments in relation to the element of detriment in that offence — where the appellant misunderstood the effect of s 359E — where the prosecutor’s statements were not inaccurate or misleading

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — IMPROPER ADMISSION OR REJECTION OF EVIDENCE — where the appellant alleged fabrications by investigating police officers and irregularities in witnesses’ evidence in relation to evidence regarding the appellant’s identification — evidence irrelevant as no issue about the identification of the appellant at trial

CRIMINAL LAW — APPEAL AND NEW TRIAL — IRREGULARITIES IN RELATION TO JURY — appellant argued the jury did not properly understand that detriment in relation to unlawful stalking must arise reasonably — where the trial judge correctly explained the necessary elements of conduct constituting unlawful stalking — where it was open to the jury to conclude whether the detriment suffered reasonably arose in the circumstances — where the appellant argued the facilities in the jury room were inadequate but provided no evidence to substantiate this claim

R v Schoner [2015] QCA 190 (15/135) Gotterson JA and Philip McMurdo and Peter Lyons JJ 09/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where the applicant pleaded guilty to, amongst other things, dangerous operation of a motor vehicle causing death and grievous bodily harm — where, as a result of the collision, one person died, another was seriously injured, and a third was injured — where, prior to the collision, the applicant had driven about 1,600 kilometres in a little less than 18 hours with some breaks — where, in the course of giving the applicant a speeding ticket about an hour and a quarter before the collision, a police officer noted that the applicant was tired — where the sentencing judge was not prepared to sentence the applicant on the basis that she was then in such a state of fatigue that she ought to have known that she should stop driving — where, at the time of the collision, the applicant was disqualified from driving — where, for the dangerous operation of a vehicle offence, the applicant was sentenced to five years’ imprisonment, suspended after two years — where the applicant applied for an extension of time within which to appeal against her sentence — whether a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension — whether the sentence was manifestly excessive

Summary Notes

Application for Extension (Sentence) — where the applicant pleaded guilty to, amongst other things, dangerous operation of a motor vehicle causing death and grievous bodily harm — where, as a result of the collision, one person died, another was seriously injured, and a third was injured — where, prior to the collision, the applicant had driven about 1,600 kilometres in a little less than 18 hours with some breaks — where, in the course of giving the applicant a speeding ticket about an hour and a quarter before the collision, a police officer noted that the applicant was tired — where the sentencing judge was not prepared to sentence the applicant on the basis that she was then in such a state of fatigue that she ought to have known that she should stop driving — where, at the time of the collision, the applicant was disqualified from driving — where, for the dangerous operation of a vehicle offence, the applicant was sentenced to five years’ imprisonment, suspended after two years — where the applicant applied for an extension of time within which to appeal against her sentence — whether a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension — whether the sentence was manifestly excessive — where for the respondent it was accepted that the extension might be granted, even without satisfactory explanation of delay, if a demonstrable miscarriage of justice could be perpetuated by the refusal of the extension — where the respondent was unable to identify a case where a person had been convicted of the dangerous operation of a motor vehicle causing a death and causing grievous bodily harm to another person, where neither alcohol nor drugs had played a role, and the defendant did not leave the scene, which had resulted in a sentence as high as the present sentence — where a consideration of precedents leads to the conclusion that the sentence which was imposed for the offence involving dangerous operation of a motor vehicle was outside the boundaries of the proper exercise of the sentencing discretion, and was accordingly manifestly excessive. Application for extension granted. Sentence application granted. Appeal allowed, substitute a sentence of four years’ imprisonment, suspended forthwith, with an operational period of four years.

R v MCG [2015] QCA 184 (14/0152) Fraser and Gotterson JJA and Jackson J 06/10/2015

APPEAL AND NEW TRIAL — APPEAL — GENERAL PRINCIPLES — INTERFERENCE WITH JUDGE’S FINDINGS OF FACT — PROOF AND EVIDENCE — OTHER MATTERS — where the applicant was convicted of an offence of bestiality — where the trial judge made a finding that the applicant was a risk of being influenced to do things she might not have done otherwise — where the trial judge recorded a conviction — whether the trial judge erred in his finding that the applicant was a relevant risk

Summary Notes

Sentence Application — where the applicant was convicted of an offence of bestiality — where the trial judge made a finding that the applicant was a risk of being influenced to do things she might not have done otherwise — where the trial judge recorded a conviction — whether the trial judge erred in his finding that the applicant was a relevant risk — where the industry the applicant was hoping to go into is to work with disadvantaged children — where his Honour’s concern for the protection of the community (including its children) is more than understandable — it is an express purpose for which a sentence may be imposed — where the relevant risk as identified by his Honour, appears to be that the applicant might be persuaded by another person to behave inappropriately or assist that person to behave inappropriately towards or around children — where the circumstances of the offence, as disclosed by the evidence and the submissions before his Honour, did not justify the factual conclusion as to the existence of the relevant risk — where in the unusual circumstances of this case there needed to be some evidentiary link between the applicant’s offence and the relevant risk before it was appropriate to make a finding, on the balance of probabilities, as to the existence of that risk — where the prosecution adduced no such evidence. Conviction set aside and in lieu thereof it is ordered that no conviction be recorded.

R v MacGowan [2015] QCA 185 (14/0246) Holmes CJ and Gotterson JA and Mullins J 06/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — where the appellant was convicted of two counts of murder — where the bodies of the deceased were disposed of in a remote location — where the trial judge gave a direction on post-offence conduct, saying the jury might infer intent from the manner of the disposal of the bodies — where defence counsel agreed to the content of the direction and did not seek a redirection — where the appellant argues that the trial judge should have given a full consciousness of guilt direction — whether the trial judge erred — whether there was a miscarriage of justice

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where the appellant was convicted of two counts of murder and sentenced to life imprisonment with a non-parole period of 30 years — where the sentencing judge considered that the need for denunciation, punishment and community protection warranted a non-release order substantially beyond the statutory minimum of 20 years — where the sentencing judge deemed the killings, which were execution style and intended to solve financial problems, to be more serious than some of the comparable sentences for double murder — whether the sentences were manifestly excessive

R v Chardon [2015] QCA 186 (14/0211) Margaret McMurdo P and Gotterson JA and Jackson J 06/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — where the appellant was charged with one count of indecent treatment of a child under 16, under care (count 1); four counts of indecent treatment of a child under 16 (counts 2, 3, 5 and 6); and three counts of rape (counts 4, 7 and 8) — where all counts concerned the same complainant and were charged as occurring between September 1998 and October 1999 — where the prosecution did not proceed on counts 3 and 5 — where the appellant was convicted on counts 1, 2, 6 and 7 — where the appellant was found not guilty on count 4 but was convicted on the alternative charge of attempted rape — where the appellant was found not guilty on count 8 but was convicted on the alternative charge of unlawful carnal knowledge — where the complainant gave evidence to support all counts on which the appellant was convicted — where the complainant made preliminary complaints to a school friend, a school counsellor and a psychologist — where the complainant gave evidence that she told the appellant’s two daughters, Angela and Candice that the appellant had abused her — where the complainant visited the appellant’s house a few years later when she was over 16 — where the appellant offered her money if she would have sex with him — where the appellant offered the complainant $1,000 and told her that she could go on business trips with him and be his secret girlfriend — where the complainant agreed — where the complainant signed a piece of paper which she believed was a contract for $1,000 — where the appellant and the complainant then had a consensual, sexual paid relationship for approximately 18 months — where the appellant stated in a police interview that he had no sexual contact with the complainant until she was over 18 — where the appellant’s daughters Angela and Candice both gave evidence denying that the complainant told them that the appellant had abused her — where the appellant contended that the verdicts were unreasonable or cannot be supported having regard to the evidence due to the conflict between the complainant’s evidence and the evidence of Angela and Candice; the discrepancies between the complainant’s evidence and that of preliminary complaint witnesses; and from the generally poor quality of the complainant’s evidence — whether the verdicts were against the weight of the evidence — whether there has been a miscarriage of justice

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — CONSIDERATION OF SUMMING UP AS A WHOLE — where there were inconsistencies between the complainant’s evidence and the evidence of other witnesses — where the appellant contended that the judge did not adequately put the defence case to the jury because the judge did not point out all these inconsistencies — where the judge referred to many inconsistences in the complainant’s evidence and how this may detract from the complainant’s credibility — where the judge referred to the evidence of the defence witnesses and twice directed the jury to read the appellant’s police interview — whether the judge’s summing up fairly placed the defence case before the jury — whether the appellant has been deprived of a chance of acquittal

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — WHERE APPEAL DISMISSED — where the appellant was charged with three counts of rape (counts 4, 7 and 8) — where the appellant was found guilty on count 7 — where the appellant was found not guilty on count 4 but guilty on the alternative offence of attempted rape — where the appellant was found not guilty on count 8 but guilty on the alternative offence of unlawful carnal knowledge — where the judge left the defence of honest and reasonable mistake of fact as to consent under s 24 Criminal Code to the jury only in relation to count 8 — where the appellant contended that had the defence been left in respect of counts 4 and 7 the jury may have acquitted him of attempted rape on count 4 and rape on count 7 and convicted him of the lesser counts of attempted carnal knowledge of a girl under 16 and carnal knowledge of a girl under 16 — where the complainant gave evidence that immediately preceding the commission of count 4 she was “saying no” and “sobbing” — where the complainant gave evidence that during count 7 she was crying and saying “no” — where the appellant told police that he had no sexual contact with the complainant until she was 18 — where there was no evidence before the jury of the appellant holding an honest and reasonable mistake of fact as to consent in respect of counts 4 or 7 — whether the judge erred

CRIMINAL LAW — APPEAL AND NEW TRIAL — PARTICULAR GROUNDS OF APPEAL — MISDIRECTION AND NON-DIRECTION — PARTICULAR CASES — WHERE APPEAL DISMISSED — where the appellant’s police interview was tendered by the prosecution — where the appellant contended that the judge erred in not directing the jury as to why it was led by the prosecution, how they should use it and how the defence said it should be used — where the appellant contended that if the interview was entirely self-serving it was inadmissible — where the appellant contended that the jury may have reasoned that it was a false denial and treated it as a lie without the benefit of any directions as to lies — where the appellant did not object to the prosecution leading evidence of his police interview — where the police interview was admissible as during it, the appellant accepted the complainant’s account that he had employed her to clean his house and therefore had the opportunity to commit the alleged offences — where the appellant’s counsel did not seek any directions as to lies — where the judge twice directed the jury to read the appellant’s police interview — whether there has been a miscarriage of justice

APPEAL AND NEW TRIAL — APPEAL – PRACTICE AND PROCEDURE — QUEENSLAND — POWERS OF COURT — FURTHER EVIDENCE — where the appeal was originally heard on 17 February 2015 — where on 25 March 2015, the appellant applied to re-open the appeal and adduce further evidence — where at the hearing of that application on 14 April 2015, counsel for the appellant stated that if leave to re-open were granted, the appellant would seek leave to amend the notice of appeal by adding a further ground of appeal — where the proposed fifth ground of appeal was that there has been a miscarriage of justice in that the appellant did not, at the trial, have the information contained in the affidavit of Steven John Pike, sworn 16 February 2015 — where Mr Pike’s affidavit exhibited documents, including copies of notes and reports of psychiatrist, Dr John Chalk, and psychologist, Ms Wendy Mackay concerning their consultations with and treatment of the complainant — where the appellant also sought to lead evidence contained in statutory declarations from Matthew Webb and Renee Webb — where the respondent sought leave to adduce further evidence by way of affidavits from an officer in the Office of the Queensland Director of Public Prosecutions and from the complainant — where the appellant then sought to lead evidence from appellant’s solicitor and from a paralegal employed by him — where the complainant deposed that there were two episodes of sexual intercourse with the appellant when she was a child, both at the appellant’s home — where a report of Ms Mackay makes reference to a third episode of sexual intercourse in 1999 at the appellant’s factory — where the complainant denied telling Ms Mackay that any of the appellant’s offending in 1999 occurred at his factory — where the complainant gave evidence that when she was over 16, during her consensual, sexual paid relationship with the appellant, most of the sexual conduct occurred at the appellant’s factory — where the appellant contended that Ms Mackay’s report supported the appellant’s case that the complainant had conflated evidence about aspects of their lawful, consensual paid relationship when she was over 16 into false testimony about fabricated sexual encounters when she was 14 or 15 — whether the application to re-open the hearing of the appeal should be granted — whether the applications to adduce further evidence and to add a further ground of appeal should be granted — whether the appeal should be allowed

R v Parker [2015] QCA 181 (15/15) Fraser and Gotterson JJA and Flanagan J 02/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE — where the applicant pleaded guilty to an offence against s 5(a) of the Drugs Misuse Act 1986 (Qld) in that, he carried on the business of unlawfully trafficking in the dangerous drug methylamphetamine — where the applicant was sentenced to imprisonment for eight years — where a declaration of a conviction of a serious violent offence was made pursuant to s 161B of the Penalties and Sentences Act 1992 (Qld) (“PS Act”) — where the applicant was in custody at the time of sentence — where the offending was committed while the applicant was on parole — where the sentence hearing proceeded on the footing that the applicant’s trafficking activity had taken place over a period of about six months — where s 156A(2) of the PS Act required that because the applicant offended while on parole, his sentence the subject of this application should be served cumulatively with his current sentence — where the sentence of eight years is to commence on 8 December 2015 — where there was no declarable time already served — where the learned sentencing judge took into account the serious violent offence declaration and fixed a parole eligibility date of 1 May 2022 pursuant to s 160D of the PS Act — where by 1 May 2022 the applicant will have served 80 per cent of his eight year sentence — where the applicant’s involvement in the trafficking was described at sentence as a “junior partner” role — where the applicant sourced methylamphetamine — where transactions were organised with persons in Brisbane, the Sunshine Coast, Cairns and South Australia — where the applicant was able to source drugs with a higher percentage of methylamphetamine, up to 75 per cent purity — where the applicant was selling from street level amounts known as “points” to ounces of methylamphetamine — where these were cash transactions interspersed with occasions when the applicant would take payment from customers by way of pseudoephedrine tablets — where the roles carried out by the applicant in the partnership business diversified over time — where on one occasion the applicant part-financed a proposed methylamphetamine production venture to the extent of $9,500 from his drug earnings — where the applicant sourced pre-cursors for further methylamphetamine production and investigated a source of cannabis in South Australia which he expected the partnership could re-sell profitably — where the partnership encountered issues with drug quality and quantity from time to time and the applicant terminated the partnership at the end of May 2012 — where the applicant continued to traffic in methylamphetamine on his own account during June and July 2012 — where the applicant would sell drugs in south-east Queensland and Cairns — where the applicant had served suppliers and at least 15 customers — where the nature of the applicant’s sole trading was described by the learned sentencing judge as “especially … retail” in contrast to the “mainly wholesale” description the learned sentencing judge gave to the trafficking in which the partnership had engaged — where complaints about quality continued — where several of the applicant’s proposed transactions did not eventuate — where the learned sentencing judge found that the trafficking in which the applicant was involved was producing sales of “many tens of thousands of dollars” — where Police arrested the applicant on 15 July 2012 and found 110 grams of methylamphetamine in five containers concealed in the engine bay of his car — where of the 100.88 grams tested, 69.72 grams were methylamphetamine with a purity of the order of 75 per cent — where the applicant had $4,060 in his wallet at the time of his arrest — where despite the scale of the trafficking, the applicant did not possess business acumen and traded on credit — where there were no obvious signs of business success — where the applicant was 37 years of age at the time of this offending and is now 41 years old — where the applicant had been a drug user since his teenage years and was a user of methylamphetamine at the time of the offending the subject of this application — where the applicant had an extensive and relevant prior criminal history — where the learned sentencing judge referred to the circumstances of the applicant’s offending, his age, his drug usage habit and his criminal history, including his twice offending on parole — where the learned sentencing judge observed that the applicant must have been aware of harmful consequences in the community of his trafficking and that courts impose penalties for trafficking calculated to deter would-be offenders from engaging in it — whether the sentence imposed was manifestly excessive

R v Hooker & Solomon [2015] QCA 182 (14/313) Holmes CJ and Henry and North JJ 02/10/2015

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — where the appellant Hooker was convicted of one count of grievous bodily harm — where the only evidence of his assaulting the complainant came from a witness who, under cross examination, volunteered that Hooker might merely have been a bystander — where another witness gave evidence that Hooker was standing beside her during the incident — whether the verdict was unreasonable

CRIMINAL LAW — APPEAL AND NEW TRIAL — VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE — where the appellant Solomon was convicted of one count of grievous bodily harm — where the complainant gave evidence that he thought his jaw had been broken by punches delivered by a short, round Aboriginal man — where the complainant identified a picture of Solomon from a photo board as the man who had punched him — where Solomon contended that the complainant’s identification of him was equivocal and that no other witness described the assault as the complainant did — where Solomon contended that there was a reasonable possibility that a different assault broke the complainant’s jaw — whether the verdict was unreasonable

CRIMINAL LAW — EVIDENCE — IDENTIFICATION EVIDENCE — WARNING ADVISABLE OR REQUIRED — ADEQUACY OF WARNING — GENERALLY — where the appellant Solomon was convicted of one count of grievous bodily harm — where the complainant identified a picture of Solomon from a photo board as the man who had punched him — where Solomon argues that the identification direction given by the trial judge was inadequate as it did not conform to the requirements identified in Domican v The Queen (1992) 173 CLR 555 — where the defence case at trial was not put on the basis of wrong identification, but raised an issue as to whether Solomon’s assault was such as to cause the grievous bodily harm — whether the direction was inadequate — whether there was a miscarriage of justice

CRIMINAL LAW — PROCEDURE — INFORMATION, INDICTMENT OR PRESENTMENT — AVERMENTS — UNCERTAINTY, DUPLICITY AND AMBIGUITY — where the appellant, Solomon, was convicted of one count of grievous bodily harm — where, in response to a question from the jury, the trial judge directed that although there were different incidents involving different people, there was an ongoing course of violent conduct — where the appellant argues that the charge was latently duplicitous because the Crown case was capable of establishing more than one assault on the complainant — where the respondent Crown at trial identified the initial assault on the complainant as the one which caused grievous bodily harm — whether the charge involved latent duplicity — whether there was a miscarriage of justice

On 7 August 2015, the High Court granted special leave to appeal in the matter of Attwells & Anor v Jackson Lalic Lawyers Pty Limited [2015] HCATrans 176.

Application for special leave to appeal was brought from the judgment of the New South Wales Court of Appeal, [1] which had found that the principle of advocates’ immunity was a complete answer to a claim against lawyers for damages for allegedly negligent advice leading to the settlement of proceedings.

The proceedings arose out of a guarantee given in respect of certain bank advances. Proceedings by the bank against the guarantors were settled on terms that included the guarantors consenting to judgment for substantially more than the amount for which they would have been liable to the bank. They did so on advice given by the lawyers.

In proceedings against the lawyers for negligence, it was ordered that the question of advocates’ immunity be determined separately. Facts were agreed for that purpose. However, the learned primary judge declined to answer the separate question. From that refusal, leave to appeal to the Court of Appeal was sought.

In the Court of Appeal, Bathurst CJ, with whom Meagher and Ward JJA agreed, held that the primary judge should not have declined to answer the separate question, finding that the circumstances existed that made such a determination appropriate. [2]

The Chief Justice observed:

[36] In D’Orta the plurality stated at [86] that there was no reason to depart from the test for advocates’ immunity, described in Giannarelli v Wraith [1988] HCA 52 ; (1988) 165 CLR 543 (Giannarelli) at 560, as extending to work done in court or work done out of court which leads to a decision affecting the conduct of the case in court. They did not consider there was any difference in stating the latter part of the test as work “intimately connected with work” in court.

[37] In the present case, in my opinion, the work fell within categories of work done out of court affecting the conduct of the case in court. The alleged breach occurred in advising on settlement of the guarantee proceedings during the luncheon adjournment on the first day of the hearing and more importantly on the evening of that day. The Agreed Facts also state that the consent order the first respondent and Ms Lord were advised to sign were signed on that evening and submitted to the Court on the following day.

[38] The advice thus led to the case being settled. Put another way it was intimately connected with the conduct of the guarantee proceedings.

On the application for special leave in the High Court, the Applicant argued that the Court of Appeal erred in applying the “intimate connection” test and, alternatively, that the time had come to reconsider the question of advocates’ immunity as confirmed in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, particularly in light of the abolition of advocates’ immunity in New Zealand by the decision in Lai v Chamberlains [2007] 2 NZLR 7.

The respondent argued that the entire question of advocates’ immunity had been fully argued in D’Orta and that the only thing that had changed since then was the fact of the New Zealand judgment in Lai v Chamberlains. The case was not one that came within the approach of the High Court to the question of reconsidering one of its earlier decisions, as articulated in cases such as John v Federal Commissioner of Taxation [3] and Wurridjal v the Commonwealth. [4] The respondent argued that the facts of the case fell clearly within the principle set out in D’Orta and there was no wrong application of principle by the Court of Appeal.

Special leave was nonetheless granted.

The appellant’s arguments which appear more fully in its written submissions on appeal, raise some interesting issues. They include the argument that the proper test for immunity is limited to in application decisions made by the advocate, not by the client. That test, articulated in Giannarelli and approved in D’Orta, is that immunity applies to “work done in court or work done out of court that leads to a decision affecting the conduct of the caser in court”: D’Orta at [86]. Because the decision to settle was a decision of the client, not of the lawyers, immunity does not apply to the conduct leading to that decision, so the argument goes.

The appellant also argues that immunity should only be applied where necessary to prevent relitigation. It will be remembered that the rationale for the immunity is, in effect, to preserve finality in litigation by preventing the re-opening of earlier litigation. The appellant argues that immunity only ought apply in circumstances where that principle is threatened, and not otherwise — in other words it is not a “blanket” immunity.

The appeal is expected to be heard in early 2016.

The relevant court documents, including links to the Court of Appeal judgment, the transcript of the Special Leave application and the parties’ submissions, including those of the New South Wales Law Society intervening, can be found here.

Adrian Duffy QC

[1] [2014] NSWCA 335

[2] [2014] NSWCA 335, [18]-[19], citing Carl Zeiss Stifung v Herbert Smith & Co [1969] 1 Ch 93, 98

[3] (1989) 166 CLR 417, 438-9

[4] (2009) 237 CLR 309, [65]-[71]