CIVIL APPEALS
Medical Board of Queensland v DAP [2008] QCA 044 Keane JA Muir JA Atkinson J 7/03/2008
General Civil Appeal — professions and trades — medical and related professions — medical practitioners — discipline and removal from and restoration to register — infamous conduct or misconduct in professional respect — particular cases — where respondent convicted of four counts of sexual offences against children under 16 years — where respondent’s registration previously suspended for professional misconduct — where respondent is said to be affected by an organic brain disorder — where the Tribunal cancelled the respondent’s registration and ordered that he not be registered for a period of five years — whether the reasons of the Tribunal state a sufficient basis for the order made — whether the order of the Tribunal should stand – Procedure — costs — general rule — costs follow the event — where appellant substantially successful in decision below — where appellant wholly successful on appeal — whether an order for costs against the respondent should be limited to the costs incurred by the appellant during the investigation phase only — HELD: Appeal allowed, orders of the tribunal set aside; registration of the respondent is cancelled; the respondent must never be registered as a medical practitioner by the Medical Board of Queensland; respondent to pay the appellant’s costs of its investigation of the respondent, of the proceedings before the Tribunal and of the appeal.
Stark v Dennett [2008] QCA 050 Keane JA Muir JA Mullins J 7/03/2008
Professions and Trades — lawyers — solicitor and client — retainer — duration, termination and change of attorney — where the respondent denied the appellant access to his papers unless outstanding fees were paid and other conditions were met — where the appellant was at the relevant time under no obligation to pay any fees to the respondent — where the appellant required access to the papers to prepare for a mediation — whether the conduct of the respondent was inconsistent with the continuation of the retainer — Liens — possessory lien — determination — where appellant owes outstanding fees to the respondent — where the respondent refused to deliver up papers belonging to the appellant — where the respondent claimed a possessory lien over the papers — where the respondent is entitled to claim an equitable “fruits of the litigation” lien — whether the respondent can maintain a possessory lien over the papers — HELD: Appeal allowed; Orders 1 and 2 of the learned primary judge set aside; All files, documents, correspondence or other material prepared by or on behalf of the appellant and copies of all documents, correspondence or other material disclosed by Burnett Valley Holdings Limited in the possession or control of John C Dennett, whether held by John C Dennett, John C Dennett & Associates and by John W Lee in relation to the Supreme Court proceeding No 3269 of 2007, be delivered up to the appellant; All files, documents, correspondence or other material prepared by the appellant and copies of all documents, correspondence or other material disclosed by Indigenous Business Australia in the possession or control of John C Dennett, whether held by John C Dennett, John C Dennett and Associates and by John W Lee in relation to the Supreme Court proceeding No 9150 of 2003, be delivered up to the appellant; The respondent to pay the appellant’s costs of and incidental to the appeal to be assessed on the standard basis.
Terry Wall, Director-General of the Environmental Protection Agency v Douglas Shire Council [2008] QCA 056 McMurdo P Holmes JA Dutney J 14/03/2008
Environment and Planning — Courts and Tribunals with environment jurisdiction — Queensland — Planning and Environment Court and its predecessors — right and availability of appeal — where applicant/appellant sought the determination of preliminary points of law — whether applicant/appellant should be granted leave to appeal on a point of law under s 4.1.56 Integrated Planning Act 1997 (Qld) from decision of primary judge — where applicant/appellant granted itself approval to construct toilet block on State coastal land above high-water mark near Daintree river — where respondent applied for a declaration that the construction required a development permit from it to be lawful — where applicant/appellant sought the determination of preliminary points of law — where no factual findings had been made prior to applicant/appellant’s application — where primary judge accepted respondent’s interpretation of “interfering with quarry materials” within Sch 8 Pt 1 Table 4 Item 5(b)(i) Integrated Planning Act 1997 (Qld) — whether primary judge erred in making determination of preliminary points of law — whether application for determination of preliminary points of law was premature in the absence of factual findings — HELD: Application for leave to appeal granted; Appeal allowed; Order of the Planning and Environment Court of 11 May 2007 set aside and the following order substituted: that the application for the determination of preliminary points of law be refused.
Cohen v Legal Practitioners Admissions Board [2008] QCA 063 de Jersey CJ Mackenzie AJA Chesterman J 17/03/2008
Qualifications and admission — Queensland — general matters — where the applicant was a director of a company which offered courses that did not have the required ASIC accreditation — where the applicant’s company engaged in misleading conduct — where the applicant let the company be deregistered without ensuring an ordered payment was paid to the students — where the applicant demonstrated an unacceptable attitude towards his company directorship — whether the applicant is suitably fit for admission as a legal practitioner — HELD: Application refused.
Astway P/L v Council of the City of the Gold Coast [2008] QCA 073 Holmes JA Mackenzie AJA Atkinson J 4/04/2008
General Civil Appeal — Statutes — Acts of parliament — Interpretation — Particular words and phrases — Specific interpretations — where land was acquired by the Albert Shire Council for a rubbish depot — where Acquisition of Land Act 1967 (Qld), s 41 provides that where an authority has acquired land under the Act and seven years after the acquisition the authority “no longer requires” the land it must be offered for sale to the original owner — where interpretation of “no longer requires the land” is a question of law — whether the Council no longer required the land within seven years is a question of fact — meaning of the phrase “no longer requires” — Resumption or acquisition of land — Powers of resumption — Under statute — Conditions and limitations — Particular statutes — Queensland — where land was acquired by the Albert Shire Council for a rubbish depot — where Acquisition of Land Act 1967 (Qld) provides that where an authority has acquired land under the Act and seven years after the acquisition the authority “no longer requires” the land it must be offered for sale to the original owner — whether Council “no longer require[d]” the land — HELD: Appeal dismissed, The appellant to pay the respondent’s costs of and incidental to the appeal to be assessed.
Delmenico v Brannelly & Anor [2008] QCA 074 Keane JA Fraser JA Chesterman J 4/04/2008
Application for Leave s 118 DCA (Civil) – General Civil Appeal – Trade and Commerce — Other Regulation of Trade or Commerce — Statutory Regulation of Particular Matters — Miscellaneous Statutory Regulation — where the appellants carried on the business of providing financial services to the public — where the respondent requested from the appellants information about an advertised investment opportunity — where the appellants sent the respondent the information memorandum for the investment accompanied by a cover letter from the appellants — where the appellants’ cover letter misstated the security of the investment — whether the conduct of the appellants was misleading or deceptive or likely to mislead or deceive — Torts — Negligence — Essentials of Action for Negligence — Duty of Care — Special Relationships and Duties — Professional Persons — where the appellants carried on the business of providing financial services to the public — where the appellants misstated the security of an investment opportunity in correspondence sent to the respondent — whether the misstatement amounted to negligent conduct on the part of the appellants — whether reliance by the respondent upon information provided by the appellants was reasonable — Procedure Supreme Court Procedure — Queensland — Jurisdiction and Generally — where the trial judge admitted into evidence the report of an expert witness — where the report was tendered without objection from the appellants — where the appellants claim that the matters addressed by the report had not been pleaded — whether the trial judge erred in admitting the report in to evidence — Procedure — Costs — Costs of Whole Action — Where Money Paid into Court or Offer of Compromise Made — where the respondent made an early offer to settle the action for a sum significantly less than that amount later awarded to him at trial — where at the time of making the offer the respondent had not disclosed documentation later relied upon to support an important aspect of the respondent’s case — whether the trial judge erred in refusing the respondent’s application for indemnity costs pursuant to r 360 of the Uniform Civil Procedure Rules 1999 (Qld) — HELD: Appeal dismissed with costs; Application dismissed with costs.
Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry [2008] QCA 088
Application for Leave s 118 DCA (Civil) — Appeal and New Trial — Appeal — Practice and Procedure — Queensland — When Appeal Lies — By Leave of Court — Generally — where the applicant is a proprietor of licensed premises in Townsville — where the applicant conducts takeaway liquor businesses under general licences — where the respondent imposed a condition on general licences in Townsville that prohibited the sale of takeaway liquor prior to 10 am — where the applicant seeks leave to appeal against the decision of the District Court under s 118(3) District Court of Queensland Act 1967 (Qld) — whether there was an error of law in the decision of the Commercial and Consumer Tribunal — whether the application for leave to appeal should be dismissed — Administrative Law — Judicial Review — Grounds of Review — Error of Law — where the respondent imposed a condition on the applicant’s general licences that prohibited the sale of takeaway liquor prior to 10 am — where the District Court dismissed the applicant’s appeal from the Commercial and Consumer Tribunal — where the appeal to the Tribunal against the respondent’s decision was by way of re-hearing of the evidence — where the authority must act in good faith and not act arbitrarily or capriciously — where the Tribunal was not bound by the rules of evidence — where the discretions conferred upon the respondent by s 107C(1)(c) and s 107C(1)(d) Liquor Act 1992 (Qld) were unconfined — whether the Tribunal breached its duty by making a decision based on findings of fact that were unsupported by probative material — whether the Tribunal erred in law as there was insufficient evidence to sustain the Tribunal’s findings in relation to s 107C(1)(c) and s 107C(1)(d) Liquor Act 1992 (Qld) — Liquor Law — Licensing — Other Matters — where the respondent imposed a condition on the applicant’s general licences that prohibited the sale of takeaway liquor prior to 10 am — where the condition was imposed for a period of six months after which a review of the decision was to be made — whether the decision to impose the condition was for a “trial period” which was beyond the respondent’s power – where the respondent imposed a condition on the applicant’s general licences that prohibited the sale of takeaway liquor prior to 10 am — whether the Tribunal erred in law in concluding that the condition imposed by the respondent was properly directed to the minimisation of alcohol related disturbances and harm within the terms of s 107C(1)(c) and s 107C(1)(d) Liquor Act 1992 (Qld) — HELD: Application for leave to appeal dismissed with costs.
Ward v Wiltshire Australia P/L & Anor [2008] QCA 093 McMurdo P Fraser JA Mackenzie AJA 18/04/2008
General Civil Appeal – Appeal and New Trial — Appeal — General Principles — Interference with Discretion of Court Below — In General — Wrong Principle — Particular Cases — Other Cases — where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period — where the trial judge restricted the favourable exercise of the discretion to cases where the delay was caused by attempts by the appellant to comply with the Act — whether the trial judge acted on a wrong principle by holding that in order to be granted leave it was necessary for the appellant to demonstrate that her delay was occasioned by attempts to comply with the Act — Insurance — Third-Party Liability Insurance — Motor Vehicles — Compulsory Insurance Legislation — Other Cases — Queensland — where s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) gave the court a discretion to grant leave to bring a proceeding based on a motor vehicle accident claim notwithstanding the expiry of the limitation period — where the trial judge had acted on wrong principle — where it was necessary to exercise the discretion afresh — where there had been a significant delay in the proceedings — where the plaintiff had relied upon her solicitor to progress her claim — where the delay was largely attributable to the inaction of the appellant’s solicitor who was mentally incapacitated — where the appellant retained new solicitors — where the solicitors pursued the appellant’s former solicitor and not the respondents — where the appellant’s new solicitors later sought to progress the claim against the respondents — analysis of the enquiry to be made and of the factors relevant to exercising the discretion conferred by s 57(2)(b) of the Motor Accident Insurance Act 1994 (Qld) — HELD: Appeal dismissed with costs.
Filippini v Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development [2008] QCA 096 Keane JA Fraser JA Lyons J 24/04/2008
Application for Leave s 118 DCA (Civil) — Professions and Trades — Auctioneers and Agents — Construction of Statutory Provisions — Queensland — Licences — where the respondent is a licensed real estate agent — where the respondent was found to have, on two occasions, contravened s 145 of the Property Agents and Motor Dealers Act 2000 (Qld) by obtaining a beneficial interest in a property placed with her for sale — where the District Court overturned the decision to cancel the respondent’s real estate agent’s licence, imposing in lieu thereof fines for the offending conduct — whether the respondent is a “suitable person” to hold a real estate agent’s licence — whether the offending conduct justified the cancellation of the respondent’s real estate agent’s licence — HELD: Application for leave to appeal granted, Appeal allowed, Orders made by the District Court set aside; and in lieu thereof it is ordered that the appeal to the District Court be dismissed, Respondent to pay the appellant’s costs of and incidental to the application for leave to appeal and the appeal, and of the proceedings in the District Court, to be assessed on the standard basis.
CRIMINAL APPEALS
R v Dolan [2008] QCA 041 McMurdo P Fraser JA Mullins J 5/03/2008 (delivered ex tempore)
Criminal Law— appeal and new trial and inquiry after conviction — appeal and new trial — appeal against sentence — grounds for interference — general principles — where appellant pleaded guilty to trafficking and possessing cannabis sativa and possessing money knowingly obtained from trafficking — where trafficking conviction based solely upon appellant’s admissions — where the appellant, who was 23 at the time of the offence, had excellent prospects of rehabilitation — where appellant sentenced to two years imprisonment, suspended after four months, with an operational period of three years — where sentencing judge did not impose individual sentences for each count on the indictment — whether judge erred by not imposing individual sentences for each count, requiring the Court of Appeal to re-exercise the sentencing discretion — HELD: Application for leave to appeal granted; Appeal allowed; Sentence imposed on 14 December 2007 set aside and instead substitute order that applicant be sentenced on count 1, to two years imprisonment and on each of counts 2 and 3, to three months imprisonment; The date the applicant be released on parole is fixed at 5 March 2008.
R v Hess [2008] QCA 048 Keane JA Muir JA Fraser JA 7/03/2008
Criminal Law — Appeal and new trial and inquiry after conviction — appeal and new trial — particular grounds misdirection and non-direction — general matters — other matters — where the appellant was convicted of one count of rape — where the jury were improperly informed that the appellant had a criminal history — where the appellant did not give evidence — where the primary judge gave directions to the jury to disregard the appellant’s criminal history — whether the prejudicial effect of the evidence of the appellant’s criminal history was overcome by the directions given — whether the failure of the primary judge to exercise his discretion and discharge the jury and order a retrial resulted in a miscarriage of justice — Objections and points not raised in courts below — where appeal allowed — where evidence was admitted of uncharged acts of workplace physical contact, touching and sexual banter by the appellant — where there was an absence of particulars — where there was no objection to the evidence at trial — whether the evidence was inadmissible — whether the probative value of the evidence outweighed its prejudicial effect — whether the jury should have been directed to disregard the evidence — whether the admission of the evidence resulted in a miscarriage of justice — Misdirection and Non-Direction — general matters — other matters — where there were inconsistencies in the complainant’s evidence — where the complainant had an extensive criminal record, including convictions for offences involving dishonesty — whether the primary judge’s directions in relation to the complainant’s credibility and evidence were adequate — whether the failure to give more specific directions in relation to complainant’s evidence and credibility resulted in a miscarriage of justice — Miscarriage of Justice — generally — where evidence was wrongly admitted — where the reception of inadmissible evidence was not addressed by appropriate directions — whether concerns as to the complainant’s credibility and evidence warranted more specific directions by the primary judge — whether, when viewed as a whole, the guilt of the appellant could be satisfied beyond a reasonable doubt — whether there was a miscarriage of justice within the meaning of s 668E(1) of the Criminal Code Act 1899 (Qld) — HELD: Allow the appeal; Set aside the verdict; Order a re-trial.
R v Tobin [2008] QCA 054 Keane JA Muir JA Fraser JA 14/03/2008
Criminal Law — Appeal and new trial and inquiry after conviction — appeal and new trial — appeal against sentence — appeal by convicted person — applications to reduce sentence — when granted — generally — where the applicant was convicted on his pleas of guilty to two counts of bomb threats — where the bomb threat was not taken seriously — where the applicant had significant mitigating factors — where the applicant was sentenced to six months imprisonment wholly suspended for two years — whether the sentence imposed in the circumstances was manifestly excessive — HELD: Application for leave to appeal against sentence allowed; Appeal against sentence allowed and orders below set aside; In their stead and subject to the applicant agreeing to the order being made after explanation to him required by s 95 of the Penalties and Sentences Act 1992 (Qld), the applicant is sentenced to probation for six months on the conditions in s 93 of that Act, together with a special condition that the applicant comply with such anger management and alcohol management as directed by an authorised Corrective Services Officer; The applicant must report to an authorised Corrective Services Officer at a time and place agreed between the parties or in default thereof, such time and place as are specified by a judge of the District Court; The Court makes the recommendation that the applicant’s probation be transferred to New South Wales; That no conviction be recorded.
R v SBG [2008] QCA 059 McMurdo P Atkinson J Mullins J 20/03/2008
Criminal Law — appeal and new trial and inquiry after conviction — appeal and new trial — appeal against sentence — grounds for interference — general principles — where applicant pleaded guilty to aiding a person to escape from lawful custody, supplying drugs within a correctional facility, unlawful supply of weapons and stealing as a servant — where applicant sentenced to three six month cumulative sentences for counts 1 and 4, 2 and 3 and 5 respectively with a parole release date after serving nine months — where applicant involved in failed plan to help a prisoner escape from a correctional facility — where applicant withdrew from plan before the plan was detected — where sentencing judge gave applicant a s 13A Penalties and Sentences Act reduction in sentence of 50 per cent for statements given to police implicating others in the plan — where applicant was a young man with real prospects of rehabilitation, showed remorse and assisted the administration of justice — whether sentencing judge erred in accumulating terms of imprisonment — whether sentencing judge erred in giving applicant only the s 13A reduction and no further reduction in sentence or parole release for other mitigating factors — whether the sentence is manifestly excessive — HELD: Application for leave to appeal granted; Appeal allowed; Vary the sentence imposed only by vacating the parole release date fixed on 22 July 2008 and instead substituting a parole release date fixed on 22 April 2008.
R v EH [2008] QCA 067 McMurdo P Holmes JA Mackenzie AJA 28/03/2008
Criminal Law — appeal and new trial and inquiry after conviction — appeal against sentence — grounds for interference — disparity – generally — where applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child under 16 years, two counts of indecent treatment of a child under 12 years, and six counts of indecent treatment of a child under 16 years — where indecent treatment counts accompanied by aggravating circumstance that the child was in his care — where applicant sentenced to seven years and nine months imprisonment, with eligibility for parole after three years —— where relevant acts in maintaining charge included the applicant sucking, rubbing lubricant on and masturbating the complainant’s penis, and procuring the complainant to sodomise the applicant — where six indecent treatment counts involved relatively brief incidents of touching the genitals or genital areas of two complainants — where two indecent treatment counts involved the applicant supplying alcohol to, and showing pornography to, three of the complainants — where victim impact statements demonstrated deleterious effects upon two of the complainants — where applicant had no criminal history — where applicant did not use violence — where offending, with the exception of the procuring of sodomy, was at the lower end of the scale — whether sentence manifestly excessive — HELD: Application for leave to appeal against sentence allowed; Set aside the sentences imposed at first instance; Substitute a sentence of six months imprisonment on count 7 on Indictment 4428/07; Substitute sentences of two years imprisonment on counts 1-6 and 8 on Indictment 4428/07; Substitute a sentence of six years and nine months imprisonment on the maintaining count on Indictment 4429/07; Fix the parole eligibility date at 20 December 2008.
R v LY [2008] QCA 076 McMurdo P Holmes JA Mackenzie AJA 4/04/2008
Sentence Application — Criminal Law — Appeal and New Trial and Inquiry — Appeal and New Trial — Appeal Against Sentence — Grounds for Interference — Disparity — Co-Offenders – — where applicant and her boyfriend (who was her co-offender) planned to murder her parents — where plan was thwarted only when applicant’s father struggled with and overpowered co-offender — where applicant and co-offender both pleaded guilty to attempted murder and conspiracy to murder — where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years — where co-offender was sentenced to nine years imprisonment for attempted murder, five years imprisonment for conspiracy to murder and one year cumulative imprisonment for armed robbery — where co-offender was an adult at the time of the offences and so was sentenced under the Penalties and Sentences Act while applicant was a juvenile and was sentenced under the Juvenile Justice Act — where sentencing judge said the co-offender ‘could justifiably feel aggrieved were the effect of his punishment to be inappropriately grossly disproportionate’ to the applicant’s — whether parity is an appropriate consideration when co-offenders fall to be sentenced under different statutory regimes — whether trial judge erred by giving too much weight to issues of parity – where applicant was sentenced to detention for four years for attempted murder and two years for conspiracy to murder, with an order that she be released after two years — where attempt to murder parents did not result in major injury to either parent — where applicant was 15 years old, mentally unwell and irrational at the time of the offences — where applicant suffered psychological trauma after being raped at the age of 13 — where applicant subsequently felt remorse and guilt — where detention would be particularly challenging for applicant — where applicant had good prospects of rehabilitation — whether sentence imposed was for the least time justified in the circumstances — HELD: Application for leave to appeal against sentence granted, Appeal allowed, Vary the sentence imposed on count 1 by ordering that the applicant be detained for two and a half years, Under s 227(2) Juvenile Justice Act 1992 (Qld), the applicant is to be released after serving 15 months of her detention, Otherwise confirm the sentence imposed.
R v Simpson [2008] QCA 077 McMurdo P Holmes JA Mackenzie AJA 4/04/2008
Appeal against Conviction and Sentence — Criminal Law — Appeal and New Trial and Inquiry after Conviction — Appeal and New Trial — Particular Grounds — Misdirection and Non-Direction — Other Matters – where appellant convicted of entering premises and stealing as a s 7 Criminal Code 1899 (Qld) party — where appellant’s son, who was a party to the offence, pleaded guilty, gave a written undertaking under s 13A of the Penalties and Sentences Act 1992 (Qld) to co-operate with law enforcement authorities, and was given a non-custodial sentence — where appellant was convicted wholly on the basis of evidence given by her son — where appellant’s son would have been liable to re-sentencing and a custodial sentence if he did not maintain the version of events he provided in the s 13A statement in court — where jury instructed as to incentive to appellant’s son to give evidence inculpating the appellant — where jury not apprised of imperative for appellant’s son not only to give, but also to maintain, his version of events — whether a miscarriage of justice occurred by way of the failure to adduce evidence as to imperative for appellant’s son to maintain his version of events — Unreasonable or Insupportable Verdict – where some inconsistencies in evidence given by appellant’s son, who gave the only evidence inculpating the appellant — where witness who ought to have been able to corroborate evidence given by appellant’s son not called — whether it was open to jury to be satisfied beyond all reasonable doubt of appellant’s guilt — HELD: Appeal against conviction allowed, Verdict of guilty set aside, New trial ordered.
R v Kitson [2008] QCA 086 Fraser JA Fryberg J Lyons J 11/04/2008
Sentence Application — Criminal Law — Appeal and New Trial and Inquiry after Conviction — Appeal and New Trial — Appeal against Sentence — Appeal by Convicted Persons — Applications to Reduce Sentence — When Granted – where the applicant was convicted on his plea of guilty of one count of unlawful possession of the dangerous drug methylamphetamine, one count of unlawful possession of the dangerous drug methadone and one count of possession of a mobile phone for use in connection with the commission of the crime of supplying a dangerous drug — where the applicant was sentenced to imprisonment for a period of 12 months — where the trial judge ordered that the applicant be released on parole after serving nine months imprisonment — Appeal — General Principles — Right of Appeal — When Appeal Lies — Error of Law — Particular Cases Involving Error of Law — Failure to Give Reasons for Decision – where the applicant’s parole release date was significantly past the halfway point of his head sentence — whether the trial judge erred in not giving reasons explaining the process underlying his decision to set the parole release date significantly past the halfway point — HELD: Application for leave to appeal against sentence allowed, Appeal allowed, Sentence is set aside and in lieu thereof order that the applicant be imprisoned for 15 months and fix the parole release date as 29 May 2008.
R v WAA [2008] QCA 087 McMurdo P Muir JA Mackenzie AJA 11/04/2008
Appeal against Conviction and Sentence — Criminal Law — Appeal and New Trial and Inquiry after Conviction — Appeal and New Trial — Particular Grounds — Unreasonable or Insupportable Verdicts — Where Appeal Dismissed – where the appellant was convicted of one count of maintaining a sexual relationship with a child under 12 years and four counts of indecent treatment of a child under 12 years — where the appellant was acquitted of two counts of indecent treatment of a child under 12 years and two counts of unlawful carnal knowledge of a child under 12 years — where the appellant was the complainant’s stepsisters’ grandfather — where there were material inconsistencies in the complainant’s evidence in relation to some counts — where there was a recorded pretext call suggesting the existence of a sexual relationship — whether the differing verdicts of guilty and not guilty were reconcilable based on the evidence — Particular Grounds — Misdirection and Non-Direction — General Matters — Other Matters — where the primary judge gave directions to the jury as to the assessment of credibility in relation to the appellant and the complainant — where the primary judge gave directions as to the separate consideration of evidence in respect of each charge — whether the primary judge’s directions were adequate — whether there was a miscarriage of justice due to the absence of a Markuleski direction — Judgment and Punishment — Sentence – where the primary judge found the sexual relationship had been maintained for 14 months — where the evidence showed the sexual relationship had only been maintained for about nine months — where the appellant is in poor health — whether the process of calculating the sentence miscarried — whether the sentencing discretion should be exercised afresh — HELD: Appeal against conviction dismissed, Appeal against sentence allowed, For count 1, the appellant be sentenced to three years imprisonment, For each of counts 4, 5, 6 and 7 the appellant be sentenced to 18 months imprisonment, The terms of imprisonment be served concurrently, The period of 251 days of pre-sentence custody from 18 September 2003 to and including 30 October 2003 and from 8 August 2005 to and including 4 March 2006 to be deemed time served in relation to each of the above sentences.
