Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Xstrata Coal Qld P/L & Ors v Council of the Shire of Bowen [2010] QCA 170 Chief Justice, Holmes and Chesterman JJA 2/07/2010

General Civil Appeal from the Supreme Court, Trial Division – Real Property – Rates and Charges – Rating of Land – Review of Decisions – Appeals – The appellants jointly own and operate two coal mines which are located within what was formerly the Bowen Shire – On 13 June 2007 the respondent (“the Council”) resolved to adopt a revenue policy for the financial year 2007-2008 which included particular policies with respect to levying rates and charges – On 27 June 2007 the Council resolved to adopt a revenue statement which included a policy of charging differential rates for the year and adopted a differential rate for each of 20 separate categories of land – The land comprising five of the 20 categories was used for coal mining with the appellants between them owning land which fell within four of the categories – Pursuant to its resolutions the Council issued rates notices to the appellants which in total charged the sum of over $400,000 by way of general rates for a half year with respect to the four categories, an increase of more than 400 per cent over the rates levied for the previous half year – The appellants commenced proceedings for judicial review of the Council’s resolutions, which was dismissed in November 2009 – On Appeal – The appeal was efficiently and economically argued, with only one point remaining in contention: whether the Council took into account the capacity of the appellants, who owned the land in the four categories, to pay the increased rate of burden – There is no doubt it did – The learned primary judge made that finding, counsel for the respondent conceded the point, and the evidence is all one way – Sections 520A and 977 of the Local Government Act 1993 (Qld) provide that a differential general rate must be set by reference to some attribute of the land which is the basis for its inclusion in a particular category for the purposes of setting a differential general rate – A perusal of the primary judge’s reasons for judgment establishes that the application was argued before his Honour, and decided by him, on the basis that the appellants’ personal capacity to pay was taken into account in setting the differential general rates – His Honour was mistaken for concluding that personal capacity to pay was not irrelevant to the decision making process – His Honour expressed as a separate, distinct criteria which described an attribute of the owner, not of the land – This consideration was expressed as the likely capacity of paying the proposed differential rates of persons who own land on which coal mining is carried out – A ratepayer’s wealth is irrelevant to the process of deciding what rates should be levied on its property – In taking wealth into account and setting the rates by reference to it, the Council’s decision making process was affected by legal error –HELD: Appeal allowed, the Council’s resolution of 27 June of the four categories of land of the appellant be set aside, the rates notices of the appellant are set aside, with costs.

Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Fraser JA and Fryberg and Applegarth JJ 16/07/2010

General Civil Appeal from the Supreme Court, Trial Division – Limitation of Actions – Extension or Postponement of Limitation Periods – The appellant is the publisher of The Chronicle, a newspaper which has as its main circulation in Toowoomba and surrounding areas – On 21 June 2008 the appellant published an article in The Chronicle which reported alleged misconduct by an unnamed person – The respondent considered that this article defamed her – On 22 September 2009 the primary judge ordered under s 32A(2) Limitation of Actions Act 1974 (Qld) that the limitation period for the respondent’s cause of action for defamation against the appellant be extended to 6 October 2009 – In a judgment delivered after the primary judge’s decision, Noonan v MacLennan & Anor [2010] QCA 50, the Court of Appeal held that s 32A(2) requires a prospective plaintiff to demonstrate more than that it was reasonable to commence the proceeding after the expiry of the limitation period; the prospective plaintiff must demonstrate that it was not reasonable to commence an action during the limitation period – After the appellant published the article on 21 June 2008, the respondent sought advice from solicitors on or about 2 July 2008 – On 9 February 2009 the respondent’s solicitor wrote a letter to the appellant complaining that the article defamed the respondent – Correspondence and telephone communications ensued between the appellant’s solicitor and the respondent’s solicitor – By letter dated 16 April 2009 the appellant’s solicitor made what purported to be an offer to make amends under the Defamation Act 2005 (Qld) – By letter dated 7 July 2009 this offer was withdrawn pursuant to s 16 of the Act – On Appeal – Whilst s 19 of the Act renders inadmissible in an application under s 32 of the LAA evidence of the content of an offer to make amends under the Act it does not exclude evidence of the occurrence of such an offer and related communications – Under s 32A of the LAA the answer to the question whether it was not reasonable in the circumstances for the plaintiff to have sued within the limitation period determines the result of an application for an extension of time – Noonan established that the test is an objective one, with no element of judicial discretion involved as to whether or not an extension should be granted – The chronology reveals a surprisingly desultory approach on the respondent’s behalf – In some cases, weeks elapsed before the respondent’s solicitors responded to correspondence from the appellant’s solicitor – Some seven months passed between the respondent’s discovery of the alleged defamation and her concerns notice which, so far as the evidence reveals, was the respondent’s first complaint to the appellant – The delays must be attributed to the respondent – The limitation provision is the general rule and the extension provision is an exception to it – The onus lay upon the respondent to bring herself within the exception by demonstrating that it was not reasonable for her to start her threatened litigation within the limitation period – The Act clearly contemplates that the non-litigious process might continue after the commencement of litigation – There was no sufficient basis in the evidence for concluding that it was not reasonable for the respondent to institute proceedings – HELD: Appeal allowed, Orders made in the trial division set aside, and instead order that the respondent’s application under s 32A of the LAA be dismissed, costs.

Queensland Construction Materials P/L v Redland City Council & Ors [2010] QCA 182 McMurdo P, Chesterman JA and Applegarth J 23/07/2010

Application for Leave Integrated Planning Act from the Planning and Environment Court – Queensland Construction Materials’ (QCM) parent companies hold mining leases on North Stradbroke Island and operate mining activities to extract minerals from the sand on the leases – In November 2007 QCM applied to the Redland City Council (“the Council”) to make a material change of use to some of the land under lease – Part of the activity for which approval was sought from the Council, the carriage of sand by truck, would occur on land other than the mining leases – It is assessable development which requires approval under the Integrated Planning Act 1997 (Qld) – The Council refused this application in August 2008 – QCM then appealed to the Planning and Environment Court where the primary judge made declarations disposing of three questions which were determined as preliminary points tried separately and in advance of the substantive appeal – The primary judge determined that it was not necessary for the development permit to be supported by the written consents of native title holders, the development application was not piecemeal and the application satisfied and was sufficient for the requirements of the IPA – On Appeal – It was established in the proceedings before the primary judge that none of the applicants has a recognised native title – Several are claimants whose claim has been registered but the claim was made 15 years ago and remains undetermined – The IPA is concerned with the state of ownership when an application is made – Consent is required from those who are owners, not some indeterminate class of persons, who, depending on time and circumstance, may become owners – Section 3.2.1(3) of the IPA does not itself confer a right but it requires the owner’s consent if an application is to be validly made – To that extent it confers a right to refuse consent – The entitlement is conferred upon freehold and leasehold owners of the land – The distinction between those whose consent is needed and those whose consent is unnecessary does not differ according to race, it is determined by proprietary rights – The applicants failed to demonstrate that the Racial Discrimination Act 1975 (Cth) made them owners of the land – Unless there be proof that native title rights exist over or in relation to the land the act in question cannot affect native title and cannot therefore be a future act under the Native Title Act 1993 (Cth) – Lardil Peoples v State of Queensland (2001) 108 FCR 453 decided that a registered native title claimant does not have procedural rights conferred by s 24MD(6A) in the absence of proof that the claimant actually has native title rights – QCM’s application for development approval was governed by s 3.2.1 of the Act – QCM’s application was required to be supported by evidence that the chief executive of the department administering the State resource was “satisfied the development is consistent with an allocation of, or an entitlement to, the resource” – A failure to support the application with the required evidence meant that the application was not a “properly made application” – The completion of Part 23 of the prescribed development application form (Form 1) in a manner that simply identifies the relevant department, the name of the delegated officer, the officer’s position, their signature, the date it was signed and the expiry date (if any) of evidence, and which does not record the fact of the officer’s satisfaction does not constitute evidence of the officer’s satisfaction that accompanies the application – In such a case the application will not have been supported by evidence as required by s 3.2.1 of the IPA or s 12 of the Integrated Planning Regulation 1998 (Qld) – The application will not be a “properly made application” and the Council will not be entitled to treat it as a “properly made application” under s 3.2.1(9) – Neither application was accompanied by what the form and s 3.2.1(5) required, namely evidence of the officer’s satisfaction that the development was consistent with an allocation of, or an entitlement to, a relevant State resource – The application was not a “properly made application” – HELD: Leave to appeal granted, Each appeal be allowed, The third declaration be set aside and in lieu thereof it is declared that the development application did not satisfy the requirements of the IPA, the appeal to the Planning and Environment Court be dismissed, Leave granted for submissions on costs.

Legal Services Commissioner v Dempsey [2010] QCA 197 McMurdo P, Holmes and Muir JJA 30/07/2010

General Civil Appeal from the Supreme Court, Trial Division – Professions and Trades – Lawyers – Complaints and Discipline – Professional Misconduct – Misleading the Court and Perverting the Course of Justice – The Legal Services Commissioner brought a discipline application in respect of six charges pursuant to s 452 of the Legal Profession Act 2007 (Qld) against the appellant legal practitioner – Four of the charges related to a client of the appellant, a Ms Simmons, and two related to another client, Mrs Oats – The Legal Practice Tribunal found the appellant guilty of the six charges, finding unsatisfactory professional conduct on two charges, and professional misconduct on four charges – The Tribunal recommended that the name of the appellant be removed from the roll of legal practitioners in Queensland and that the appellant pay compensation to Mrs Oats in the sum of $17,232.72 and costs – The critical findings of the Tribunal are: Ms Simmons received a letter from Mr Dempsey dated 2 October 2006 regarding what he said was an administrative change, The letter provided “…The client agreement can only be varied by agreement so if I don’t hear from you within 7 days disagreeing with this proposal, then we will take it that the client agreement is varied on this basis…” – The Tribunal also found Mr Dempsey was untruthful in evidence that he gave to the Tribunal in relation to an alleged meeting with Ms Simmons, who gave evidence that no such meeting had taken place – The appellant provided a sworn affidavit before the Tribunal of having met Ms Simmons on 28 September 2006 – On Appeal – The affidavit evidence of Mr Dempsey in regard to having met Ms Simmons on 28 September 2006 was detailed – The Tribunal asked why no file notes were made of the meeting with the appellant replying that he didn’t need to as he had dictated the letter (which he believed had been dictated on 28 September 2006) – The appellant’s evidence about the Meeting was so detailed as to be improbable – Without the aid of a diary note of any kind, the appellant, a busy practitioner who regarded Ms Simmons’ matter as “just another matter” , purported to remember in great detail what was said in the course of a five to 10 minute meeting – It was open to the Tribunal on the evidence, to conclude that the appellant knowingly gave false evidence – The Tribunal specifically raised the question of the use it could make of a finding that a legal practitioner was “not being truthful in his or her evidence during the course of the hearing” – However, neither before nor after the raising by the Tribunal of a possible finding that the appellant had lied on oath did the respondent’s counsel put to the appellant that he was being deliberately untruthful – That is a matter of concern but it did not deprive the Tribunal of the right to make the subject finding – The Tribunal alerted the appellant to the possibility of such a finding so as to give him the opportunity of addressing the matter – Senior counsel for the appellant at first instance did not request an adjournment to further consider the matter nor did he seek to lead further evidence – No suggestion that either of those courses would have been beneficial – HELD: Appeal dismissed with costs.

Mango Boulevard P/L v Spencer & Ors [2010] QCA 207 Muir and Fraser and White JJA 6/08/2010

General Civil Appeal from the Supreme Court, Trial Division – Estoppel – Former Adjudication and Matters of Record or Quasi of Record – Judgment Inter Partes – Res Judicata Distinguished from Issue Estoppel – Mango Boulevard Pty Ltd, Richard Spencer as trustee and Silvana Perovich were parties to a joint venture conducted through Kinsella Heights Development Pty Ltd – Mango held half the shares and Spencer and Perovich held 25% respectively – Mango claimed declarations that Spencer and Perovich were in default under the Shareholders Deed entitling it to an option to acquire the shares – Spencer and Perovich defended the claim and made a counterclaim for Mango’s shares – Following a litany of defaults by Spencer and Perovich on 3 April 2007 the Chief Justice made a self-executing order which struck out some paragraphs of their defence and provided that there should be judgment for Mango on the counterclaim – Mio Art replaced Spencer as trustee and filed a defence and counterclaim – Spencer, Perovich and Mio Art defaulted in disclosure and further orders were made on 20 March 2008 that struck out Mio Art’s defence and counterclaim and gave summary judgment for Mango on Mio’s counterclaim – On 3 December 2009 the primary judge dismissed Mango’s application for summary judgment and varied that part of the 3 April 2007 self-executing order that provided for judgment against Spencer and Perovich – On Appeal – Mango obtained a judgment by operation of the 3 April 2007 order – That order was duly filed and the fact that no further judgment was filed was not an impediment to an issue estoppel – A judgment given for non-compliance with obligations to disclose documents under procedural rules or pursuant to an order for disclosure does not involve any actual determination on the merits and there is no reasonable basis for treating them as determining the merits of any issue – Such judgments should be distinguished from default judgments which have been treated as giving rise to a res judicata or an issue estoppel – Although the 3 April 2007 order struck out the counterclaim it is respectfully considered that the judgment was not given for a default in pleading – The order of 3 April 2007 operated as a judgment for Mango on the counterclaim, and r 374(8) of the Uniform Civil Procedure Rules 1999 (Qld) precluded an order setting aside that judgment otherwise than on appeal – HELD: Appeal allowed, the order of 3 December 2009 varying the orders of 3 April 2007 be set aside, otherwise dismiss the appeal, the appellant to pay the respondents’ costs.

Mansouri & Anor v Aquamist P/L [2010] QCA 209 Chief Justice and Fraser and White JJA 6/08/2010

General Civil Appeal from the District Court – Contracts – General Contractual Principles – Building, Engineering and Related Contracts – Remuneration – Statutory Regulation of Entitlement to and Recovery of Progress Payments – The appellants (Parvindokht and Shahabollah Mansouri) were the registered owners of land on which the respondent carried out excavation and earthworks as part of a project for the construction of multiple residential dwellings – The primary judge gave summary judgment in favour of the respondent for a progress payment under s 19(2)(a)(i) of the Building and Construction Industry Payments Act 2004 (Qld) for $75,878.27 as a liquidated debt – Section 18(5) of the BCIPA rendered Mr and Mrs Mansouri liable as persons who at least “may be liable to make the payment” – On Appeal – The appellants accepted that the respondent had carried out work on their land but they deposed that it was a “Pedro Mansouri”, rather than Mr or Mrs Mansouri, who was party to Aquamist’s contract – They denied on oath that Mr and Mrs Mansouri had made any contract with Aquamist – At the hearing of the appeal counsel for Aquamist, who had not appeared in the District Court, conceded that the primary judge’s analysis could not be sustained – That concession was appropriate – The provisions in Part 3 of the BCIPA were designed to facilitate the enforcement of the statutory right to a progress payment, not to broaden it – A payment claim may validly be served only on a person who is a party for whom the claimant undertook to perform construction work, or to whom the claimant undertook to supply related goods and services – The expression “may be liable” does not qualify that requirement – Summary judgment should only be given where there is a high degree of certainty about the ultimate outcome if the matter were allowed to go to trial in the ordinary way – On the affidavit evidence there was such a lack of clarity about the identity of the parties to the arrangement for the construction work as to render this case unsuitable for summary judgment – HELD: (Abridged) Appeal allowed, Set aside the orders of the District Court with costs, Machinery orders for the progression of this matter.

Brannock v Jetstar Airways P/L [2010] QCA 218 McMurdo P, Fraser and White JJA 20/08/2010

General Civil Application from the District Court of Queensland – Aviation – Carriage by Air – Carrier’s Liability – Death or Personal Injury of Passenger – On Domestic Flight – Brannock (the respondent) was travelling with his companion from Brisbane to Adelaide with Jetstar – When the flight was called for boarding they were directed by the flight attendant to descend a flight of stairs to the tarmac and board the plane – When they reached the bottom of the stairs, they could not find the correct exit door leading out onto the tarmac and started back up the stairs – Other descending passengers offered to show them the way, Brannock turned and began to descend the stairs again – In doing so, he fell to the foot of the stairs and was injured – Brannock complied with the Personal Injuries Proceedings Act 2002 (Qld) pre-proceedings processes – Brannock alleged that the personal injuries which he sustained “resulted from an accident which took place in the course of the operations of embarking the aircraft” – It was common ground that liability arose under Part IV of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) – The District Court Judge dismissed Jetstar’s application to strike out Brannock’s statement of claim or to seek judgment against him under the Uniform Civil Procedure Rules 1999 (Qld) – On Appeal – In the circumstances of Brannock’s claim the word “accident” in s 28 CACLA may be accepted as having the same meaning as in Article 17 of the Convention for the Unification of Certain Rules relating to International Carriage by Air 1929 (the “Warsaw Convention”) – It is accepted that Part IV of CACLA extends principles relating to international air carriage into domestic law – In Povey v Qantas Airways Ltd (2005) 223 CLR 189, the High Court of Australia explained that the concept of “accident” invited two questions, first what happened on board (or during embarking or disembarking) that caused the injury, and secondly was what happened unusual or unexpected? – The accumulation of circumstances as pleaded by Brannock cannot either individually or collectively, create an event external to the passenger – The stairs were an ordinary feature of embarkation – Brannock’s approach to embarking and using the stairs was peculiar to him – Brannock’s pleaded case is no different from the tripping and slipping cases where recovery has been denied – HELD: (abridged) Appeal allowed, Judgment entered for the appellant against the respondent with costs.

Barton v Atlantic 3-Financial (Aus) Pty Ltd & Anor [2010] QCA 223 Muir and White JJA and Mullins J 24/08/2010

General Civil Appeal from the Supreme Court, Trial Division – Procedure – Supreme Court Procedure – Procedure Under Rules of Court – Judgments and Orders – The primary judge refused the appellant’s (Barton’s) application for reactivation of proceedings – Her Honour concluded that the appellant’s delay in prosecuting the proceedings had been "egregious, and … insufficiently explained"; (inferentially) the delay would cause prejudice to the second respondent; the proceedings had not progressed substantially; the second respondent would have difficulty obtaining summary judgment and the appellant had "comprehensively failed to comply with its (sic) implied undertaking to prosecute his claim expeditiously" – On Appeal – In the Court’s respectful opinion the exercise of the primary judge’s discretion miscarried as a result of undue focus on past delay and the giving of insufficient consideration to the appellant’s prospects of advancing the proceedings in a timely way – What emerges from the history of the matter is that the appellant has done very little to prosecute his claims in these proceedings – A respondents past delay is relevant on an application for reactivation – Counsel for the respondent candidly informed the Court that his client had no interest in having the proceedings progressed – The Court, however, does have an interest in the timely disposition of proceedings and that is the focus of the practice direction – The fact that the explanation for the delay from the appellant does not amount to a justification is not a bar to reactivation – The appellant was prevented from taking a step in the proceedings – Although courts are nowadays more active than in the past in case management, we have yet to reach the stage where courts are obliged to assist one party to litigation in the furtherance of that party’s case against the other: litigation remains an adversarial process – HELD: (Abridged) Appeal allowed, Order of 4 February 2010 (except for costs) be set aside, Proceedings reactivated with costs of the appeal only against the second respondent with an indemnity certificate to be granted under the Appeal Costs Fund Act 1973 (Qld).

CRIMINAL  APPEALS

R v Gately [2010] QCA 166 Holmes and Muir JJA and McMeekin J 2/07/2010

Appeal and New Trial – Irregularities in Relation to Jury – Partiality – The appellant was convicted after a trial of the murder of his father – After the jury was sworn in, but before the Crown opened its case, the juror communicated to the trial judge through a note written either by herself or by the bailiff – The note was read to counsel in the absence of the jury and contained information including that her daughter was recently murdered but she didn’t think that it would be a problem serving as a juror in this trial – Defence counsel objected to the juror’s continuing on the jury – The learned judge went on to say that he would adjourn and speak to the juror in his chambers to see if he could elicit more detail – Defence counsel acceded to that course – When court resumed, the learned judge put the details of the conversation before the court including that it was a grand-daughter not a daughter, she hadn’t seen the girl for a couple of years and her boyfriend is charged with causing her death by bashing her – Defence counsel stated that he could not advance his argument any further, but maintained his submission that the juror’s deliberations might be affected by those circumstances – The learned judge ruled against him and declined to discharge the juror concerned – On Appeal – There is no warrant for supposing that the learned judge misapplied the test in Webb v The Queen (1994) 181 CLR 41 – His Honour referred to the relevant fact that the juror was not in close contact with the grand-daughter who was killed, and took into account, as was rational, the juror’s own belief that she could act as an impartial juror – The procedure adopted for the communication between the judge and juror was unusual – The normal course where a juror wishes to raise of a concern of the kind involved here is for the juror to approach the bench and speak to the judge, usually in a way which is not audible to the parties – Here there was a risk other members of the jury might have thought that the need for a private discussion arose from some concern about the accused – The right of the accused to be present at his trial is fundamental, whether or not it is statutorily prescribed, but it is of some significance that the legislature in Queensland has seen fit to give it legislative force – A review of authorities provides the conclusion is that it is not every departure from the requirement that the accused be present, however minor, that amounts to a fundamental error of the kind identified in Wilde v The Queen (1988) 164 CLR 365 – The irregularity in the present case was minor in its proportions – There was not such a departure in this case from the essential requirements of the law as to deprive the appellant of a fair trial – HELD: Appeal dismissed.

R v Moti [2010] QCA 178 Holmes JA Muir JA Fraser JA 16/07/2010

Reference under s 669A Criminal Code from the Supreme Court, Trial Division – The appellant appeals against the stay of an indictment charging the respondent with seven counts of engaging in sexual intercourse with a person under 16 while outside Australia, contrary to s 50BA of the Crimes Act 1914 (Cth) – The learned primary judge stayed the indictment because she had concluded that financial support given to witnesses (the complainant’s family members in Vanuatu) brought the administration of the justice system into disrepute and that on balancing of the relevant policy considerations, the appropriate course to remedy that abuse of process was a stay of the indictment – A schedule of payments tendered showed that the amount paid to the complainant’s parents and brother between February 2008 and November 2009 was $81,639.25 – On Appeal – The power to stay proceedings as an abuse of process is an exceptional one – Some of the arguments put for the appellant were not compelling – The submission that the Executive was entitled to make payments of the kind here for the general deterrence of Australian citizens inclined to paedophile activities abroad might have had some force had there been some evidence suggesting such a motivation and a submission to that effect before the primary judge – The charges were not brought for an improper purpose – The statements of the complainant’s family members were made in 2006, well before any question of the supply of funds by the Australian Federal Police arose – The course the Australian Federal Police adopted was outside, but not in breach of, existing guidelines – Her Honour did not make any finding that the expenditure was improper – There were two crucial errors in the learned primary judge’s reasoning: the failure to recognise that the questioned payments were not designed to, and did not, procure evidence from the prosecution witnesses; and the failure to pay sufficient regard to the fact that the payments made, while beyond existing guidelines, were not illegal – HELD: The stay be set aside.

R v Rope [2010] QCA 194 Chief Justice and Fraser and Chesterman JJA 30/07/2010

Appeal against Conviction from the District Court – Appeal and New Trial – Conduct of Trial Judge – Misdirection and Non-direction – Effect of Misdirection and Non-direction – After a three day trial the appellant was convicted of two counts of rape, but acquitted of a third count at the direction of the trial judge – There were two issues for the jury – One was whether the admitted sexual contact between the appellant and complainant was consensual or whether, if it was not, the appellant might have honestly and reasonably though mistakenly believed it was – Counsel for the appellant did not ask the trial judge to put s 24 of the Criminal Code to the jury – The trial judge nevertheless felt that the defence was available on the evidence and directed the jury accordingly – The jury asked for “a copy of (the complainant’s testimony” – The trial judge discussed this request with counsel and intimated his assumption that the jury was “asking for the transcript” as to which his Honour would “simply inform them that it’s not procedure in these courts to supply the transcript of evidence to the jury” – The prosecutor inquired whether the judge intended to tell the jury that parts of the transcript could be read aloud by way of answering the jury’s question – His Honour brushed aside the suggestion by saying that he would “wait till they asked for it…” – On Appeal – Whatever concern the jury may have had about the evidence should have been addressed – The effect of the trial judge’s ruling was to inhibit the jury from pursuing a legitimate inquiry they had made in order to better understand the evidence on which the Crown case depended – If, however, the transcript was not to be given it was incumbent on the trial judge to ascertain what part of the evidence concerned the jury and to read it to them – It is the practice of judges when giving juries general directions as to the manner of conducting their deliberations to advise that it is not customary to give them a transcript of the evidence but to tell them that if they wish to be reminded of any testimony they should inform the judge who will read the required passages of the transcript to them, or have them read – The BenchBook contains a direction in those terms – The trial was irregular – In relation to the ground of appeal concerning the direction of the trial judge the factors identified by the appellant’s counsel give rise to a small but sufficient basis for the possibility that the appellant might honestly and reasonably have thought the complainant consented to his activities, though, clearly enough on her evidence she did not – The trial judge explained the law as “A reasonable belief is one that in the circumstances in which the accused found himself a reasonable person would not have (held)” – The passages under attack look not at the appellant’s belief to assess whether it was reasonable but objectively at whether the belief could have been held by a reasonable person in the appellant’s position – Before it exonerates an accused from criminal liability, s 24 requires two things (1) a belief in a state of fact actually held by the accused and (2) the belief is reasonable – The application of s 24 depended critically upon the jury’s assessment of the complainant’s evidence – The evidence was sufficient to allow the inference that the accused held an honest and reasonable belief in an appropriate state of affairs – The appellant has been deprived of a chance of acquittal reasonably open to him – HELD: Appeal allowed, Convictions set aside, Retrial ordered.

R v Mathews [2010] QCA 196 McMurdo P, Fraser JA and White JA 30/07/2010

Application for Leave s 118 DCA (Criminal) – Appeal and New Trial – Particular Grounds of Appeal – Conduct of Trial Judge – Mathews was originally charged with committing a public nuisance under the Vagrants, Gaming and Other Offences Act 1931 (Qld) (repealed) (Vagrants Act) – The matter came on for hearing in the Brisbane Magistrates Court on 1 June 2005 – The magistrate did not ask Mathews to enter a plea, but instead told the police prosecutor to outline the case alleged against Mathews before dealing with some preliminary matters concerning summoned witnesses who were legally represented – Under s 39 of the Vagrants Act a prosecution under that Act must be heard and determined summarily – It is clear from the transcript that due process did not occur – Mathews plainly indicated to the magistrate that he intended to contest his guilt of the summary charge of public nuisance – The magistrate did not ask Mathews to plead to the charge, nor did he hear any evidence, allow Mathews to cross-examine prosecution witnesses, allow Mathews to give or call evidence or address the court on the question of guilt, or determine in a reasoned way whether, on the evidence, Mathews was guilty or not guilty before sentencing him under s 19 of the Penalties and Sentences Act 1992 (Qld) (“the Act”) – The Act as its title and terms make clear, only operates after a person has been found guilty – The conduct of the proceeding on 1 June 2005 was grossly irregular and resembled more of the topsy-turvy world of Lewis Carroll’s Alice in Wonderland (“Sentence first – verdict afterwards”) than a court of law in a democracy – The magistrate must have become concerned about the irregularity as the bench charge sheet is endorsed by the magistrate as having the matter brought on again for hearing before the same magistrate three and a half years later – The record does not show that Mathews was given notice of this hearing – The magistrate purported to reopen the matter and set aside the conviction – On 2 March 2010 Mathews applied for an extension of time to appeal from his conviction and sentence to the District Court under s 222 Justices Act – His application was heard on 19 March 2010 where the District Court judge considered that because Mathews’ finding of guilt was set aside and the nuisance charge dismissed on 17 December 2008, there was no order in the Magistrates Court from which Mathews could appeal so refused the application for an extension of time – On Appeal – The order made by the magistrate on 1 June 2005 must now be set aside if the order of 17 December 2008, which purported to do that, was made without jurisdiction – The gross irregularity and injustice perpetrated on 1 June 2005 in the magistrate’s sentencing Mathews before determining, according to law, whether he was guilty of the offence, cannot be permitted to stand – Despite Mathews’ tardiness in appealing, the interests of justice require that time should be extended and the appeal to this Court allowed – Held: Application for leave granted, Appeal allowed, Order of District Court of 19 March 2010 set aside and instead the following orders are substituted, The applicant is granted an extension of time, The appeal is allowed, the orders of the Magistrates Court of 1 June 2005 and 17 December 2008 are set aside, instead the charge of public nuisance brought against the applicant is dismissed.

Dixon v LeKich [2010] QCA 213 McMurdo P and Fraser and White JJA 13/08/2010

Application for Leave to Appeal from the District Court – Evidence – Burden of Proof, Presumptions, and Weight and Sufficiency of Evidence – Where Persons Acting in Public Capacity – Due Appointment – Where the applicant, Senior Constable Dixon, proceeded against the respondent in the Magistrates Court for a speeding offence – The prosecution relied entirely on documentary evidence – The critical documents which were admitted as exhibits were photographs of the respondent’s car on a section of highway taken by a fixed speed camera – The magistrate found the respondent guilty, convicted her, and fined her $200 – The respondent appealed to the District Court – The judge held that the magistrate had erred in admitting the photographs in evidence, allowed the appeal, set aside the conviction and penalty and ordered that a verdict of acquittal be entered – On Appeal – The applicant applied for leave to appeal – When the application first came before the Court it was adjourned because for reasons within the applicant’s responsibility the matter was not ready to proceed – The applicant was represented by senior counsel, with the respondent being unrepresented – The Court adopted the exceptional course of acceding to her request to grant leave for her husband to make submissions on her behalf and to cross-examine deponents of affidavits upon which the applicant relied – It is clear that the presumption of regularity may be applied in an appropriate case to justify an inference that an official was the object of a delegation which the official purportedly authorised – The consequences of a delegation by the Commissioner are by no means insignificant – It arms a police officer with power to provide prima facie proof of an offence merely by signing a certificate – It does not seem unduly pedantic to insist upon proof of such a delegation where, as the primary judge explained, the applicant could have taken advantage of the simple mode of proof which the legislature has provided in the Acts Interpretation Act 1954 (Qld) – Accordingly, the applicant could have proved the delegation simply by tendering a certificate purporting to be signed by the Commissioner – The applicant omitted to do so – In the absence of any admissible evidence that there was such a delegation, the photographs were inadmissible – There is no warrant for overlooking the requirements of the statutory short-cut for proof by invoking the presumption of regularity which was instead designed to overcome difficulties of proof – This predicament has apparently arisen only because prosecutors have routinely failed to take advantage of the simple mode of proving delegations provided under the AIA – The Court was informed that since the District Court’s decision prosecutors have been proving delegations under those provisions – HELD: Application refused.

R v Richardson [2010] QCA 216 Fraser and White JJA and Mullins J 20/08/2010

Appeal against Conviction & Sentence from the District Court – Verdict Unreasonable or Insupportable Having Regard to the Evidence – Appeal Against Sentence – Grounds for Interference – Sentence Manifestly Excessive or Inadequate – The appellant was found guilty after a trial of one count of robbery whilst pretending to be armed with a firearm and in company – The robbery occurred at an Australia Post Office on 20 September 2007 – The evidence implicating the appellant in the offence was a DNA sample, the major component of which matched the appellant’s DNA – Two Post Office employees were unable to identify the offender although they provided general descriptions, one of which was said to be inconsistent with the appearance of the appellant – On Appeal – The appellant submitted that the possibility of secondary transference raised an explanation consistent with innocence that could not be rejected by the jury – The theory of secondary transference was just that – When considering all of the evidence the jury could be satisfied beyond reasonable doubt that he was the offender – The appellant was sentenced to an effective sentence of nine years imprisonment, with the earliest parole eligibility date of six years – The sentence for the Post Office robbery was to be served cumulatively with an armed robbery offence and other lesser offences occurring on 31 December 2007 – The sentencing judge made a serious violent offence declaration, influenced by the appellant’s criminal history and the question mark over his rehabilitation – The learned sentencing judge fell into error when he made a serious violent offence declaration in respect of the robbery of 20 September 2007 – The learned sentencing judge gave far too much weight to the appellant’s previous criminal history which had occurred well in the past and to the uncertainty of rehabilitation and the need to protect the community in the event that the appellant’s rehabilitation was unsuccessful – The former is not, on the whole, a relevant consideration and neither is the latter – Rehabilitation is a matter that can be left to the parole authorities who can monitor the appellant’s progress – The authorities suggest a head sentence of eight to nine years without a serious violent offence declaration for two robberies without gratuitous violence by an offender with a significant criminal history, where there was the added aggravation of bail and parole breaches and the positive factor of an early plea of guilty – HELD: (Abridged) Appeal against conviction dismissed, Application for leave to appeal against sentence allowed, Appellant sentenced to an effective sentence of eight years imprisonment.

R v Smith [2010] QCA 220 Fraser JA White JA Applegarth 24/08/2010

Sentence Application from the District Court – Appeal against Sentence – Grounds for Interference – Sentence Manifestly Excessive or Inadequate – The applicant pleaded guilty to an ex officio indictment on one count of using a carriage service to access child pornography material – Applicant was sentenced to 18 months imprisonment with release after serving three months upon entering into a recognizance of $500 for three years and subject to supervision for 18 months – On Appeal – The applicant had a limited criminal history involving stealing offences and assaults – A forensic analysis of the applicant’s laptop computer located 1,449 images of child pornography, of which 1,175 were unique and 274 were duplicate images – The analysis showed that the applicant actively searched for and viewed images of child pornography on numerous websites during the period – The material was categorised according to the scale adopted in R v Oliver [2003] Cr App R 463 – All five categories were present, in different proportions – The authorities all point to a term of imprisonment of about 18 months for accessing a quantity of images in all the Oliver categories without more – The requirement for general deterrence clearly operated here and her Honour was alive to the imperatives of s 17A of the Crimes Act 1914 (Cth) of imprisonment as a sentence of last resort – HELD: (Abridged) Application for leave to appeal against sentence refused, Warrant to issue for the arrest of the applicant.

R v Kashani-Malaki [2010] QCA 222 McMurdo P, Fraser JA and Fryberg J 24/08/2010

Appeal against Conviction from the Supreme Court, Trial Division – Appeal and New Trial – Particular Grounds of Appeal – Conduct of Trial Judge – Appellant pleaded not guilty to one count of trafficking in dangerous drugs and one count of importing prohibited imports, namely narcotic goods consisting of a traffickable quantity of cocaine – Over three weeks later the jury convicted him on count 1 but were unable to reach a verdict on count 2 – The jury retired to consider their verdict on 29 June 2009 – On 2 July, the fourth day of deliberations, the judge stated to the parties in the absence of the jury that she had received a note from the jury – The judge stated that the jury were ready to offer a verdict on trafficking but were unable to come to a unanimous verdict on importation – The judge further stated that one of the jurors had been concerned about the health of her child and asked the Bailiff if she could get a text message from her husband at 11 am – The judge stated that the Bailiff provided the judge with a note which he said the juror gave him, said note raising matters about the deliberations and how the juror wanted to get further information on a particular direction – Her Honour then stated that she folded the note up, gave it back to the Bailiff with the Bailiff to state to the jury that “her Honour doesn’t want to receive a note from an individual juror and that if there were questions for those questions to be given to the Bailiff so that we can get the jury back” – Her Honour then stated that she suspected “the note was as a result of being overwrought” – Neither the prosecutor nor the appellant raised any objection to the manner in which the judge had indicated that she had dealt with the juror’s note out of court – On Appeal – The principle that communications between judge and jury material to the verdict must be in open court is well established in Australia – It is a fundamental tenet of our system of open justice – Not every out of court communication between judge and jury will offend this principle – The transcript in the present case makes it clear that the judge initially thought that the note from the individual juror the subject of this appeal concerned the health of the juror’s children – The only rational inference from the judge’s description of the note is that it raised issues that could be material to or affect the jury’s consideration of the case – It was a clear case where the judge should have reconvened the court in the presence of the appellant and the prosecutor, initially in the absence of the jury – The judge should have marked the note as an exhibit for identification for identification and placed on the court file – The method adopted by the judge was an irregular and unsatisfactory way to deal with a communication from a juror involving matters which apparently could affect the jury’s consideration of their verdict – A material irregularity in the conduct of the trial has resulted – The potential materiality of the juror’s question to the jury’s consideration of the case means that, despite the considerable strength of the prosecution case, s 668E(1A) of the Criminal Code cannot be applied – HELD: Appeal allowed, Conviction set aside and a retrial ordered.

R v Garget-Bennett [2010] QCA 231 Holmes JA, and Fryberg and Applegarth JJ 31/08/2010

Sentence Application from the District Court – Procedure – Information, Indictment or Presentation – Averments – Uncertainty, Duplicity and Ambiguity – Grounds for Interference – Sentence Manifestly Excessive or Inadequate – On 20 November 2009, the applicant pleaded guilty to one count of using a carriage service to access child pornography material between 1 March 2005 and 14 September 2008, contrary to s 474.19(1) of the Criminal Code 1995 (Cth), and one count of knowingly possessing child exploitation material on 13 September 2008, contrary to s 228D of the Criminal Code 1899 (Qld) – The applicant was sentenced to three and a half years imprisonment suspended after 21 months for the Commonwealth offence and three and a half years imprisonment suspended for an operational period of two years for the State offence – Examination of the applicant’s computer found 44,197 images of child pornography that were categorised in accordance with the approach in R v Oliver [2003] 1 Cr App R 28 – A large number of video files were located on the applicant’s computer of which fifty per cent were examined of which 89 depicted child exploitation material – The sentencing judge described the images found by police as “cruel, inhumane and disgusting” – On Appeal – One of the difficulties with the sentence as a whole is the uncertainty of precisely what the applicant was being sentenced for in count 1 – Count 1 alleged that between 1 March 2005 and 14 September 2008, the accused used a carriage service to access child pornography – The statement of facts commence with a description of the applicant accessing a hard core child exploitation material website on 19 November 2006 and paid by credit card to subscribe to the site, but the statement also summarised admissions by the applicant, some of which suggested other, less particularised offences – The prosecutor did not indicate on which instance of using the internet to access child pornography she relied on count 1 – The learned sentencing judge based her remarks on the content of the material found in the applicant’s possession, the subject of count 2, and said nothing about the basis on which she was sentencing in respect of count 1 – The respondent stated that this was an everyday practice, and a convenient one, for offences to be rolled up in a single charge; to do otherwise would present practical difficulties – That notion may be questioned – The charge alleged a single offence; the Crown did not submit that more than one offence, should be taken into account; and it was not apparent by his plea or anything said on his behalf that the applicant intended to plead guilty to more than a single offence of using the internet to access child pornography – The sentence of three and a half years on count 1 is doubly problematic: the learned judge did not identify what offence she was sentencing for, and her Honour could not properly have proceeded to sentence for all the offences disclosed by the statement of facts – For count 2 the marked disparity of 18 months between the sentence in the present case and that imposed in R v Grehan [2010] QCA 42 suggests that the head sentence here for the offence of possession was manifestly excessive – The sentence that is appropriate to each offence, and the period of actual imprisonment ordered to be served, must depend on the circumstances of the case – The sentence of 12 months (after the appeal for the Commonwealth offence) reflects the fact that the sentence for the Commonwealth offence is for one act of accessing child pornography – HELD: Leave granted, Appeal allowed, Sentence on Count 1 set aside and a sentence of 12 months imprisonment, with release after 10 months upon recognizance of $500 conditioned that the applicant be of good behaviour for two years, is substituted, Sentence on count 2 is set aside and a sentence of two years and six months imprisonment, suspended after ten months, with an operational period of two years is substituted.