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Issue 25: April 2008
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Case Notes, Issue 25: April 2008

Court of Appeal Judgment Summary Notes

BY Hearsay
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Wednesday 5th March, 2008
Court of Appeal Judgment Summary Notes

CIVIL APPEALS

  • JJ Richards & Sons P/L v Bowen Shire Council [2008] QCA 016 Keane JA Fraser JA Fryberg J 15/02/2008
  • Worchild v Petersen [2008] QCA 026 McMurdo P Holmes JA Mackenzie J 22/02/2008
  • GAD v DPP (Qld) & Anor [2008] QCA 027 McMurdo P Keane JA Atkinson J 22/02/2008
  • Robson v Robson & Anor [2008] QCA 036 Keane JA Muir JA McMeekin J 29/02/2008

CRIMINAL APPEALS

  • R v King [2008] QCA 001 de Jersey CJ Keane JA Holmes JA 30/01/2008 (delivered ex tempore)
  • R v Walton [2008] QCA 009 McMurdo P Fraser JA Mackenzie J 8/02/2008
  • R v Forrester [2008] QCA 012 Keane JA Holmes JA Fraser JA 8/02/2008
  • R v KU, AAC, WY, PAG, KY, KZ, BBL, WZ & YC; ex parte A-G (Qld) [2008] QCA 020 de Jersey CJ McMurdo P Keane JA 19/02/2008
  • R v Chong; ex parte A-G (Qld) [2008] QCA 022 Keane JA Fraser JA Atkinson J 22/02/2008
  • R v Mirza; ex parte A-G (Qld) [2008] QCA 023 McMurdo P Holmes JA Fryberg J 22/02/2008
  • R v Schneider; ex parte A-G(Qld) [2008] QCA 025 McMurdo P Holmes JA Fryberg J 22/02/2008
  • R v Michael [2008] QCA 033 Keane JA Holmes JA Mullins J 29/02/2008

law.jpgCIVIL APPEALS

JJ Richards & Sons P/L v Bowen Shire Council [2008] QCA 016 Keane JA Fraser JA Fryberg J 15/02/2008 General Civil Appeal — administrative law — judicial review — reviewable decisions and conduct — decisions to which judicial review legislation applies — decisions under an enactment — generally – where the Council terminated the tender process after the close of tenders — where the Council instituted a new tender process — whether the decisions to terminate and institute a new tender process were decisions made “under an enactment” – whether the decisions to terminate and institute a new tender process were decisions made under a “non-statutory scheme or program” – whether the appellant was “aggrieved” by the decisions of Council to terminate the existing tender process and institute a new process – where the Council decided to terminate an existing tender process and institute a new process — whether the Council failed to comply with s 481 of the Local Government Act 1993 (Qld) — HELD: Appeal dismissed with costs.

lawtechnology.jpg Worchild v Petersen [2008] QCA 026 McMurdo P Holmes JA Mackenzie J 22/02/2008 Application for Leave s 118 DCA (Civil) — appeal and new trial — appeal — practice and procedure — Queensland — when appeal lies — by leave of court — costs orders – where District Court allowed applicant’s appeal against conviction — where order for costs limited to out-of-pocket expenses — where applicant also sought professional costs — whether applicant should be granted leave to appeal under s 118(3) District Court Act 1967 (Qld) on the issue of costs – where District Court Judge made discretionary order as to costs — whether that discretionary order should be set aside – where applicant previously held a Restricted Employee Practising Certificate under the Legal Profession Act 2004 (Qld) — where applicant did not renew his Practising Certificate — where applicant did not hold a Practising Certificate when he represented himself before the Magistrates Court and District Court – whether the District Court Judge erred in refusing to allow professional costs — HELD: Application for leave refused, applicant to pay costs.

GAD v DPP (Qld) & Anor [2008] QCA 027 McMurdo P Keane JA Atkinson J 22/02/2008 General Civil Appeal — criminal law — jurisdiction, practice and procedure — adjournment, stay of proceedings or order restraining proceedings — stay of proceedings — abuse of process — in general — where the appellant agreed to plead guilty on the condition that charges against the appellant’s co-accused be abandoned — where the first respondent later brought new charges against the appellant for offences allegedly committed during the same time period as that relevant to the earlier charges — whether the bringing of the new charges is contrary to the earlier plea bargain and thus amounts to an abuse of process — HELD: Appeal dismissed.

Robson v Robson & Anor [2008] QCA 036 Keane JA Muir JA McMeekin J 29/02/2008 General Civil Appeal — procedure — costs — security for costs – where the defendant seeks an order for security for costs under r 671(c) — where the plaintiff mis-stated his address on the claim document as being care of his solicitors — whether there is reason to believe that the plaintiff’s mis-statement of address was done without an intention to deceive – where the defendant seeks an order for security for costs under r 671(h) — where the plaintiff has limited assets within Australia — where an order for security will not stifle the pursuit of the plaintiff’s claim — whether the “justice of the case” enlivens the court’s power to grant the order for security for costs — HELD: Appeal dismissed with costs.

fingerprint.jpgCRIMINAL APPEALS

R v King [2008] QCA 001 de Jersey CJ Keane JA Holmes JA 30/01/2008 (delivered ex tempore) Sentence Application — criminal law — appeal against sentence — appeal by convicted persons — application to reduce sentence — intoxication — disorderly behaviour — assaulting, resisting, hindering, or obstructing police officer — general principles — where the intoxicated applicant spat blood and phlegm onto a police officers face and mouth — where applicant pleaded guilty to committing a common assault and a serious assault — where there were mitigating factors — whether the sentence imposed was manifestly excessive — HELD: Application for leave to appeal granted; appeal allowed; set aside the sentence of six months imposed in respect of the serious assault and sentence the applicant in lieu to four months imprisonment suspended after two months for an operational period of two years.

R v Walton [2008] QCA 009 McMurdo P Fraser JA Mackenzie J 8/02/2008 Appeal against Conviction — criminal law — appeal and new trial and inquiry after conviction — particular grounds — misdirection and non-direction – where appellant charged with two counts of unlawfully and indecently dealing with a child – where redirection to jury spoke of whether there was a “good chance” the touching was accidental — whether the jury were misdirected as to the onus and standard of proof – where the addresses of counsel referred to the complainant’s distressed condition — whether the learned trial Judge should have directed the jury as to the relevance, use and dangers of such evidence — HELD: Appeal allowed. Set aside the convictions on counts 1 and 2 and order that there be a new trial on each count.

R v Forrester [2008] QCA 012 Keane JA Holmes JA Fraser JA 8/02/2008 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 — generally — jurisdiction practice and procedure — judgment and punishment — sentence — factors to be taken into account — factual basis for sentence — sentence to be of and related to offence — where the applicant harassed the complainant using a mobile telephone — where the applicant was not charged with making harassing phone calls — where the sentencing judge considered the evidence of the phone calls as an aggravating circumstance in sentencing — whether evidence of the applicant’s harassment formed part of the offences of which he was convicted – whether the sentencing judge erred in exercising the sentencing discretion — whether the sentence imposed was manifestly excessive — HELD: Application for leave to appeal against sentences imposed for burglary and indecent assault granted; set aside the sentence of 3 years and 6 months imprisonment in respect of the burglary and indecent assault convictions and sentence the applicant in lieu to 3 years and 6 months imprisonment with a parole eligibility date fixed for 18 February 2008, application for leave to appeal against other sentences dismissed.

justice-scales-sepia.jpgR v KU, AAC, WY, PAG, KY, KZ, BBL, WZ & YC; ex parte A-G (Qld) [2008] QCA 020 de Jersey CJ McMurdo P Keane JA 19/02/2008 Application for Extension (Sentence); Sentence Appeal by A-G (Qld) — criminal law — appeal and new trial and inquirey after conviction — appeal and new trial — appeal against sentence — appeal by attornery-general or other crown law officer — power to bring appeal – where the Attorney-General sought an extension of time in which to file an appeal against sentence — where the Attorney-General pointed to failures by the DPP as explanation for delay in filing the appeal — where the respondents resisted the extension — whether sufficiently “exceptional” circumstances exist to justify the granting of the extension — HELD: Orders of 13 February 2008: That the time within which the Attorney-General might appeal is extended until 11 December 2007 for YC and 10 December 2007 for all other respondents, That the Chief Executive is to prepare pre-sentence reports for AAC, YC, PAG, KY, KZ and BBL and provide them to the Court by 13 March 2008, That the respondents file any additional evidence by 3 April 2008 or such further date as the Court subsequently directs and serve copies of that evidence on the applicant/appellant by that same date, That the applicant/appellant should forthwith advise the respondents of any witness to be required for examination or cross-examination, That the parties should advise the Registrar as soon as practicable of the expected length of the further hearing That the further hearing of the appeal be adjourned until a date to be fixed; Further Order of 19 February 2008: That the Chief Executive is to prepare pre-sentence reports including, if considered necessary, psychological or psychiatric reports, for KU, WZ and WY, and provide them to the Court by 13 March 2008.

R v Chong; ex parte A-G (Qld) [2008] QCA 022 Keane JA Fraser JA Atkinson J 22/02/2008 Sentence Appeal by A-G (Qld) — criminal law — appeal against sentence — appeal by Attorney-General or other crown law officer — application to increase sentence – where Attorney-General appealed against sentence – where respondent was convicted on one count of unlawful wounding and one count of breach of an intensive correction order – where the respondent was sentenced for the unlawful wounding conviction to two and a half years imprisonment with court ordered parole to apply immediately – where for the breach of the intensive correction order the respondent was re-sentenced for the original offences to 15 months probation to be served concurrently with the earlier sentence – whether the sentence imposed for the offence of unlawful wounding, both before or after the re-opening, was manifestly inadequate — sentence factors to be taken into account — aboriginal offenders – where exceptional circumstances include the respondent being an Aboriginal mother from a remote community who would no longer be able to breastfeed her youngest child if imprisoned – whether a person convicted of unlawful wounding must spend time in custody-where hardship caused to an offender’s children by imprisonment may be taken into account in sentencing in exceptional circumstances — HELD: Appeal dismissed.

R v Mirza; ex parte A-G (Qld) [2008] QCA 023 McMurdo P Holmes JA Fryberg J 22/02/2008 Appeal against Sentence by A-G (Qld) — criminal law — appeal and new trial and inquiry after conviction — appeal and new trial — appeal against sentence — appeal by Attorney-General or other crown law officer — applications to increase sentence – where respondent pleaded guilty to attempted indecent treatment of a child under 12 years — where respondent sentenced to 12 months probation with no conviction recorded — where respondent did not actually touch the child, and desisted when the child objected — where respondent’s attempt was not pre-meditated and testimonials suggest it was out of character — where respondent genuinely remorseful — where, if conviction recorded, respondent could face difficulties with continuing his medical studies, gaining employment and registration as a medical practitioner and maintaining his student visa — whether sentence manifestly inadequate — whether trial judge erred in not recording a conviction — HELD: Appeal against sentence refused.

justice-scales-sepia.jpg R v Schneider; ex parte A-G(Qld) [2008] QCA 025 McMurdo P Holmes JA Fryberg J 22/02/2008 Appeal against Sentence by A-G (Qld) — criminal law — appeal and new trial and inquiry after conviction — appeal and new trial — appeal against sentence — appeal by Attorney-General or other crown law officer — applications to increase sentence – where the respondent pleaded guilty to maintaining a sexual relationship with a child, rape, indecent treatment of a child under 16 and indecent treatment of a child under 16 whilst in his care — where the respondent sentenced to 5 years imprisonment with parole eligibility after 12 months — where the offences were committed against students of the respondent at the school where he taught — where the respondent was sentenced in February 2006 for sexual offences committed during same period as the current offences to 18 months imprisonment, suspended after 5 months, and had been released — where the respondent had taken steps toward rehabilitation — whether sentence manifestly inadequate — HELD: Appeal against sentence refused.

R v Michael [2008] QCA 033 Keane JA Holmes JA Mullins J 29/02/2008 Appeal against Conviction — appeal and new trial and inquiry after conviction — appeal and new trial — particular grounds — misdirection and non-direction — where grounds for interference with verdict — particular cases — where appeal allowed — where the trial judge directed that a support person sit next to the complainant whilst she gave her evidence — where the trial judge ordered that the court be closed whilst the complainant gave her evidence — where the trial judge failed to give a direction of the kind required under s 21A(8) of the Evidence Act 1977 (Qld) — whether the trial judge erred in failing to give the direction — whether the non-direction resulted in a substantial miscarriage of justice – where the evidence of two key witnesses conflicted significantly — whether a reasonable jury could be satisfied beyond a reasonable doubt of the appellant’s guilt — HELD: Appeal allowed, conviction quashed and a new trial ordered.