Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Anderson v Connelly & Suncorp Metway Insurance Limited [2011] QCA 037 Margaret McMurdo P and Fraser and White JJA 8/03/2011

General Civil Appeal from the District Court — Torts — Negligence — Road Accident Cases — Actions for Negligence — Apportionment of Damages — Intersection and Junction Accidents — The respondent (Anderson) was driving onto a roundabout when her car collided with the sedan driven by the appellant (Connelly) — Anderson suffered personal injuries and brought a claim against Connelly for damages in negligence — The trial judge found that Connelly was primarily responsible for the collision although Anderson contributed to it — He apportioned 75 per cent of liability to Connelly and 25 per cent to Anderson, giving judgment to Anderson in the sum of $247,001.16 — On Appeal — Roundabouts are notoriously problematic for road users — Both Anderson and Connelly should have been taking particular care when travelling on this roundabout to look out for others on the roundabout, relevantly each other — The judge found that Ms Anderson had travelled only about 15 metres on the roundabout before the collision — That finding is not challenged — Having just entered the roundabout, Anderson was required to give way to vehicles in the roundabout, including Connelly’s vehicle — Even accepting Anderson’s evidence that Connelly’s vehicle was in the inside lane, she should have foreseen the real possibility that Connelly’s car, although indicating right, could take the next exit on the Road — The lane markings on the roundabout indicated that it was possible for Connelly to take this exit by crossing, rather than directly changing into the outside lane of the roundabout, although only if safe to do so — In entering the roundabout, Anderson was obliged to give way to other vehicles on the roundabout and was required to take particular care in respect of Connelly’s car — She should have been alert to and travelling slowly enough to prepare for the contingency that Connelly’s car may leave the roundabout at the Road exit from the inside lane of the roundabout — Anderson’s percentage of liability for the accident was considerably more than the 25 per cent apportioned to her — Anderson entered the roundabout when Connelly’s vehicle was travelling on the roundabout in the inside lane — The collision occurred very soon afterwards — I consider that both Anderson and Connelly were equally responsible for the collision which resulted in Anderson’s injuries — I would apportion liability to each of them at 50 per cent and vary the judgment sum in favour of Anderson accordingly — HELD: Appeal allowed, judgment sum set aside and instead substituted with the judgment sum of $164,667.44 and costs.

Westpac Banking Corporation v Hughes & Anor [2011] QCA 042 (10/9271) Brisb Fraser and Chesterman JJA and Martin J 11/03/2011

General Civil Appeal from the Supreme Court, Trial Division — Practice and Procedure — Procedure Under Rules of Court — Amendment — Cairns Penny Bank Limited drew a cheque for $250,000 in favour of the respondents as payees — Westpac was the drawee — On or about 22 June 2001, Westpac made payment on the cheque to the National Australia Bank (“NAB”) as the collecting bank for its customer, Drury Management Pty Ltd, and NAB deposited the proceeds of the cheque to Drury Management Pty Ltd’s account — Nearly six years later, on 19 June 2007, the respondents filed a claim and statement of claim in which they claimed $250,000 from Westpac — The claim and statement of claim did not nominate the cause of action upon which the respondents relied — Westpac applied in the trial division for summary judgment dismissing the respondents’ claim — The primary judge approached Westpac’s application to disallow the claim for conversion made in the further amended statement of claim by enquiring whether, although the amendment changed the facts alleged in support of a cause of action, it was nevertheless “… reasonably apparent from a party’s pleadings, prior to the amendment, that the party sought to raise that cause of action” — The primary judge concluded that the claim in the further amended statement of claim was not “new” and refused Westpac’s applications — On Appeal — If the drawee of a cheque, the paying bank, pays in a manner authorised by the Cheques Act it cannot be said it has paid someone other than the owner of the cheque — Having paid the cheque the paying bank is entitled to possession of it — The respondents are said to have been customers of the appellant and that payment of the cheque was made wrongly and without authority from the respondents’ account, not from the appellant’s own monies — Such a case would be a clear case of breach of contract between banker and customer, but it would not involve the conversion of the cheque — One is forced to the conclusion that there is nothing in the statement of claim which suggests the inference that the respondents were ever in possession of the cheque and/or that its payment operated as a conversion of their rights to the cheque — The amendments, and particularly the deletions they made to the statement of claim, show that the claim in conversion was new — The case pleaded in the amended statement of claim is plain enough, though not felicitously expressed — It is a claim in conversion — The statement of claim is unintelligible — It is not possible to know what claim it intended to advance — As best one can tell it was intended to be for a breach of contract between banker and customer — It is, I think, plain enough that it was not an action in conversion for it lacks the central allegation viz that the payment of the cheque infringed the respondents’ rights to possess it or, to the same effect, that they were the true owners of the cheque — It follows that the amended statement of claim raised a new cause of action outside the limitation period — Accordingly there should have been an order that the amendments be disallowed — In those circumstances there should also have been an order for summary judgment on the appellant’s application — The notice of appeal is confusing as to which orders are challenged — It is not necessary to deal with this aspect of the judgment because the appeal succeeds on the objection to the amended statement of claim and because this point was not the subject of argument — HELD: Appeal allowed, Orders dismissing the application are set aside, The amended statement of claim is struck out, Judgment in the action for the appellant against the respondents with costs.

In Vitro Technologies Pty Ltd v Taylor [2011] QCA 044 Muir and Fraser and Chesterman JJA 15/03/2011

General Civil Appeal from the Supreme Court, Trial Division — Torts — Negligence — Proof of Negligence — Weight and Credibility of Evidence — After a trial a judge in the trial division gave judgment in favour of Ms Taylor for $419,461.36 against her former employer as damages for personal injuries caused by the employer’s negligence and breach of contract of employment — Her office cubicle included a desk, shelves on a wall on her left hand side (as she was facing her desk), and a wall on her right hand side to which a map was attached — There was a chair on castors — Ms Taylor gave evidence that some weeks after she was employed in the office she was instructed to place a plastic mat under her chair — Ms Penhaligon, a fellow employee, gave evidence that she complained to the employee’s office manager Ms Henderson in Ms Taylor’s presence that the mats were “dangerous and hazardous” – Ms Taylor gave evidence that in her presence Ms Penhaligon complained to Ms Henderson about the mats’ “extreme” slipperiness – Ms Taylor and Ms Penhaligon both gave evidence that Ms Henderson directed them that the mats must remain — Accordingly, the plastic mat remained in Ms Taylor’s cubicle — The trial judge found that Ms Taylor was a credible and reliable witness and that her evidence was consistent and truthful — The trial judge found that when Ms Taylor “attempted to resume her seat … the chair rapidly and suddenly moved from under her body causing her to fall to the floor” — That rapid movement resulted from the mat underneath the chair being “dangerously slippery” — On Appeal — The trial judge’s findings depended in part upon the assessment of the oral evidence, which his Honour had the advantage of seeing and hearing as the trial unfolded — The employer’s arguments do not justify this Court in disregarding those findings, particularly when it was not put to Ms Taylor that her evidence of the words used by Ms Penhaligon in complaining to Ms Henderson was incorrect, Ms Henderson was not called to rebut that evidence, the mat and chair were not tendered in evidence, there was no expert evidence to contradict Ms Taylor’s evidence of the propensity of her chair to move surprisingly rapidly over the mat, and there was no evidence to contradict Ms Penhaligon’s evidence that after the accident Ms Taylor’s chair was found off the mat and out of the cubicle — The employer contended that the trial judge failed to give reasons for rejecting the evidence of witnesses called by the employer, Ms Burchardt (the employer’s National Sales Manager), Ms Forster (National Manager, Corporate Systems, of a company associated with the employer, JJ Richards and Sons Pty Ltd (“JJ Richards”), which occupied a neighbouring building), and Ms Bain (formerly employed by JJ Richards as Office Manager) that the mats were not slippery and did not pose a risk of injury — Ms Forster and Ms Bain were employed by JJ Richards in the building adjacent to that in which Ms Taylor worked — Ms Forster was not asked whether the office chairs in the adjacent building were the same as Ms Taylor’s chair — She said of the mats used in the JJ Richards office that “they look very similar” — Ms Burchardt gave evidence that before Ms Taylor’s accident neither Ms Taylor nor anybody else had complained to her about the mats — Again, however, there was no evidence of any practice or expectation that employees should complain to her about such matters, rather than to Ms Henderson — The employer’s arguments in relation to quantum do not justify this Court in interfering with the trial judge’s award — The unchallenged finding was that Ms Taylor’s ongoing disabilities limited her employability on the open market — HELD: Appeal dismissed with costs.

Coldham-Fussell & Ors v Commissioner of Taxation [2011] QCA 045 Chief Justice, Margaret McMurdo P and White JA 18/03/2011

General Civil Appeal from the Supreme Court, Trial Division — Procedure — Procedure Under Uniform Civil Procedure Rules — Summary Judgment — The appellants were directors of a company that became insolvent and third parties to litigation brought by the liquidators against the Commissioner of Taxation — On 26 July 2010 orders were made in the Trial Division pursuant to s 588FF of the Corporations Act 2001 (Cth), that the defendant (“the Commissioner”) pay monies plus interest to Allens Services Limited (in liquidation) — The learned primary judge made further orders that the appellants, Mr Coldham-Fussell as first third party and Mr Blizzard as second third party, pay to the Commissioner a sum of money plus interest and Mr Falk, as fourth third party pay money plus interest of — As summarised by the learned primary judge, while the third parties did not take any issue about the Company making the payments to the Commissioner, their preferential effect or being voidable if the Company was insolvent when they were made, they disputed the allegation that the Company was insolvent at the relevant times when the payments were made — They relied upon the defences to proceedings brought under s 588FGA and s 588FGB of the Corporations Act that at the time the several payments were made they had reasonable grounds to expect, and did expect, that the Company was solvent and would remain solvent even if it made the payment — They further relied upon the defence in s 588FGB(4) that they believed, and reasonably so, that they were provided with adequate information about solvency from the chief executive officer and the chief financial officer of the Company — On 9 July 2010 her Honour published her reasons for concluding that she was satisfied that the third parties had “no real prospect of defending” the Commissioner’s claim against them and “there [was] no need for a trial of it” — On Appeal — By s 588FE of the Corporations Act if a company is being wound up a transaction of the company is voidable if it is an insolvent transaction of the company and was entered into during the six months ending on the relation-back day — It was uncontentious that the relation-back day for the Company was 13 May 2003 so that the six months commenced on 14 November 2002 — It is uncontentious between the parties that the time to determine the question of the solvency of the Company for each unfair preference payment is at the time each payment was made — There is, with respect, an appearance in her Honour’s reasons of “rolling up” events that occurred across the whole period of the payments — The learned primary judge concluded that the information Mr MacKenzie, the then chief financial officer, provided to the appellants between 5 December and 11 March 2003 made it clear that the Company was unable to pay its debts as and when they fell due — There is no evidence that Mr MacKenzie expressed this opinion so firmly about solvency to the Board at any time prior to the end of February 2003 — The learned primary judge did not analyse rule 292 (perhaps mindful of the warnings against elucidation); her conclusion was that the appellants had no real prospect of defending the Commissioner’s claim against them and there was no need for a trial of it — The business of the Company was geographically extensive, the material on the hearing was voluminous, the financial considerations complex and the Minutes upon which much depended were necessarily truncated versions of what occurred at meetings — The appellants are persons of considerable experience with appropriate qualifications for whom the orders are grave and who, it would appear on the documentary material, attempted to attend to their duties as directors — They may have been in error but, if that be the conclusion, it should be reached in the ordinary way after testing those beliefs and expectations in a trial — Insolvency is required to be seen at the time when the impugned payments were made and there is well founded concern that her Honour erred in not sufficiently compartmentalising the early periods from later information — HELD: Appeal allowed, Orders set aside, Costs reserved.

WAW Developments Pty Ltd v Brisbane City Council [2011] QCA 047 Muir and Chesterman JJA and Ann Lyons J 18/03/2011

Application for Leave from the Planning and Environment Court — Environmental Planning — Development Control — Form and Contents of Application — Validity of Application — The applicant appealed to the Planning and Environment Court (“P & E Court”) against the respondent’s refusal of its development application — The respondent applied to the P & E Court for an order summarily dismissing the appeal to that court on the ground that the application was not a “properly made” one — On 6 August 2010 the P & E Court struck out the appeal — On Appeal — The applicant conducts, or has approval to conduct, a restaurant from premises fronting Wyandra Street in Newstead near its intersection with Commercial Road — The footpath, part of the Wyandra Street road reserve, slopes quite steeply — The applicant built a raised deck over the footpath, level with it at the Commercial Road end but elevated above it at the other — The deck is attached to the restaurant premises and is intended by the applicant to be the site of outdoor dining — There is no question in these proceedings about the legality of the structure — The respondent required the applicant to apply for development approval for the use of the structure for outdoor dining — The application was made and rejected — It was the appeal against the rejection of the application which was summarily dismissed — Section 3.2.1 of the Integrated Planning Act 1997 (“IP Act”) (which remains the relevant legislation for this application) has as its subject matter applications for development approval — Wyandra Street is a road other than a State controlled road — The department with the responsibility for the administration of the road was at the relevant time the Department of Environment and Resource Management — The applicant applied to the department for “evidence of resource entitlement” — The application was acknowledged by the departmental administration officer who noted that the application was “assigned to … Dunn…for processing” — A few days later Ms Dunn wrote to the applicant “The Department … advises that it will not require tenure over the subject area for the construction of the elevated deck” — If the State is not concerned that the particular development application will adversely affect the State resource it may say so, and evidence that the relevant State representative is satisfied that the development may proceed in the absence of an allocation of or entitlement to the resource to the applicant, will satisfy s 3.2.1(5)(c) — The applicant submits that Ms Dunn’s letter was evidence to that effect — With respect to the primary judge it is impossible to read Ms Dunn’s letter as indicating anything other than the Chief Executive’s satisfaction that the development might proceed, and that the development did not adversely affect the State resource — The letter noted expressly that the department did not require the applicant to obtain tenure over that part of the footpath covered by the deck — The clear inference is that the department did not regard the structure and its intended use as effecting a closure of part of the road reserve, so the applicant was not required to obtain title to that part of the reserve — On any view of Ms Dunn’s letter the appeal to the P & E Court should not have been peremptorily dismissed — The question whether the deck forms part of the streetscape does not arise in this application and it is unnecessary to essay any criticism of the primary judge’s opinion that it did not — However, lest it be thought that an understanding of what constitutes a streetscape is limited to those who practise in the P & E Court it is worth noting that the term is a common one and appears, for example, in Chambers Dictionary which defines it as: “A scene or view of the street: the specific characteristic of or improvements made to a street.” — Streetscape must then, surely, include street furniture — That is, according to the Oxford Dictionary of Architecture: “anything erected on pavements or streets, including bollards, railings, lampposts, pissoirs, post boxes, street signs, telephone kiosks, and entrances to subways or underground railways, often of cast iron.” — Whatever one thinks of the aesthetics of the applicant’s structure it is an improvement at least as substantial as a pissoir or a parking meter — HELD: Application for leave granted, Appeal allowed, Order of the P & E Court set aside with costs.

Foster & Anor v Cameron [2011] QCA 048 (10/11674) Brisb Margaret McMurdo P and Chesterman JA and Ann Lyons J 22/03/2011

General Civil Appeal from the Supreme Court, Trial Division — Damages — Personal Injury Assessment of Damages — Measure of Damages — The respondent sued the appellants, his employers, for damages for injuries sustained in the course of his employment — Liability was admitted and on 29 September 2010 Douglas J gave judgment for the respondent for $434,715.16 — Included in the judgment sum was an amount of $13,495.00 awarded in respect of the respondent’s need, created by his injuries, to employ a man to mow his lawn — The respondent suffered a significant aggravation of a pre-existing disease in the discs of his cervical spine — The injury caused severe restrictions in the respondent’s movement of his upper body and shoulders — Of particular relevance he was unable to mow the lawn of his suburban block — In the period between injury and trial his lawn was mowed mostly by his son and grandchildren but when they were unavailable he employed a “lawnmower fellow, Max” whose charge for each service was $50 — On Appeal — The appellants do not quarrel with the quantum of this part of the award — The contention is that the respondent had not demonstrated an entitlement at law to damages for his lost ability to mow his own law — The appellants submit that the award was precluded by the provisions of Part 10 of the Workers’ Compensation and Rehabilitation Act 2003 (“Compensation Act”) — The appellants submitted that the terms of ss 308B, 308C, 308D, and 308E, when read against the background of the Second Reading Speech which introduced the sections into the Compensation Act, and the Explanatory Notes accompanying the Parliamentary Bill, extend the prohibition on an award of damages to the circumstances of this case, where the relevant services were partly paid for and partly gratuitous — A consequence of the appellants’ reading of the section is that had the respondent engaged Max to mow his lawn on all but one of the occasions it needed cutting between injury and trial, and on the other occasion the work was done by his son, no damages at all could be awarded for the cost of satisfying the injury caused need — The result seems unreasonable and gives rise to doubt that it is what Parliament intended — The services which he usually performed before his injury and which were provided to him afterwards do not fall within the definition of either paid services or gratuitous services — They were a hybrid: partly gratuitous and partly paid for — It is apparent that Part 10 does not completely abolish the right to damages for injury caused needs — The statutory scheme is to deny the court power to award such damages in the precise circumstances described in the sections — The point is reached, in my opinion, where the section does not apply and the court is not justified in inserting any particular words to make it apply — The consequence is that the respondent had a right to recover damages to compensate him for the injury caused need which was recognised in Griffiths v Kerkemeyer — The section may need amendment — The court should not embark upon a piecemeal, and probably unsatisfactory, attempt at remediation — HELD: Appeal dismissed with costs.

CRIMINAL APPEALS

R v Perini; ex parte A-G (Qld) [2011] QCA 030 Chief Justice, Muir and White JJA 1/03/2011

Sentence Appeal by A-G (Qld) from the Supreme Court, Trial Division — Particular Offences Against the Person — Homicide — Manslaughter — Sentence — Particular Cases — The respondent was 37 years old when he committed the instant offences — They were manslaughter, for which he was sentenced to 13 years imprisonment with a serious violent offence declaration made; aggravated burglary, 12 years; a second count of aggravated burglary, 10 years; two counts of indecent interference with a corpse, two years; and burglary and stealing, two years with the terms to be served concurrently — The deceased was a 76 year old woman who lived in an assisted accommodation centre at the Gold Coast — The respondent also lived there, in another unit — The respondent knew that he was to be evicted from his unit, because of his misbehaviour, on 31 March — The circumstances of the killing involved substantial premeditation — The deceased died of asphyxiation, with strangulation and wounding contributing causes — The complicating circumstance, in relation to sentencing, is the respondent’s state of diminished responsibility at the time — The respondent’s confession to the police was motivated in large part, it seems, by his wish to ensure incarceration and thereby secure accommodation — That was plainly not indicative of remorse — Nevertheless the respondent’s plea of guilty to manslaughter should somewhat moderate the sentence visited upon him because it aided the administration of justice, notwithstanding the abundant strength of the prosecution case — In my view, putting to one side the respondent’s state of diminished responsibility, the objective circumstances of this offence put it into the worst category of manslaughter — It was a case of savage brutality and depravity visited upon a vulnerable elderly woman, entirely without reason, in her own residential unit. Because of his plea of guilty and other mitigating circumstances, the respondent should not however have been sentenced to life imprisonment, but to a lengthy finite term — I consider that the sentence of 13 years imprisonment for manslaughter did not adequately reflect the gravity of this heinous crime and the need for community protection, and made too substantial an allowance for mitigating circumstances (essentially the diminished responsibility, and the plea of guilty), and that the respondent should have been sentenced to 18 years imprisonment — Reducing a life term to 18 years imprisonment sufficiently reflects the respondent’s cooperation in the administration of justice by pleading guilty — HELD: Appeal allowed, Sentence below of 13 years imprisonment for manslaughter is set aside with a sentence of 18 years imprisonment substituted.

R v Costello [2011] QCA 039 Chief Justice and Muir and White JJA 11/03/2011

Appeal against Conviction and Sentence from the District Court — Appeal and New Trial — Miscarriage of Justice — Verdict Unreasonable or Insupportable Having Regard to Evidence — Sentence Manifestly Excessive — The appellant was convicted after a trial in the District Court of one count of using a carriage service to transmit to a person, whom he believed to be under 16 years of age, communications which included material that was indecent, with the intention of making it easier to procure that person to engage in or submit to sexual activity with himself — He was also convicted of four counts (counts 2, 3, 4 and 5 in the Indictment) of using electronic communication with intent to expose, without legitimate reason, a person he believed to be under the age of 16 years to indecent matter in Queensland — The appellant was sentenced to 27 months imprisonment for the count one offence with a release date at the mid point of the sentence — Concurrent sentences of eight months imprisonment were imposed for the remaining offences — The only issue between prosecution and defence on the trial was whether there was proof beyond reasonable doubt of the appellant’s belief that his communications over the internet were with a person under 16 years of age — The sole witness for the prosecution was the police officer who used the user name “Cassie Henry” — He explained how the subject communications had taken place and how the subject images had been transmitted and displayed — A booklet containing a compilation of the texts of the chats between “Cassie Henry” and the appellant was tendered through him — On Appeal — It was central to the prosecution case that the appellant believed that he was communicating with a 14 year old girl — That was put to the appellant several times in the course of cross-examination — It is not the case that the substance of the prosecution case was not put to the appellant — In short, it was apparent to the appellant and his counsel throughout that the prosecution was contending that any account of the appellant’s to the effect that he understood “Cassie” to be an adult male should not have been believed — In cross-examination the appellant was adamant that he did not want voice contact with “Cassie” — He said, “[t]here was never going to be a phone number supplied. This was an adult male. They were never going to give me a phone number, in my belief” — Yet when the appellant was given a telephone number he rang it immediately — It was open to the jury on the whole of the evidence to be satisfied of the appellant’s guilt — The maximum penalty for the count 1 offence was 12 years imprisonment — The appellant’s offending conduct, which involved the real time transmission of acts of masturbation, was more serious than the conduct in Gatti — Moreover, the subject conduct appears to have involved a more concerted and subtle exercise in seduction and corruption than the corresponding conduct in Gatti — HELD: Appeal against conviction dismissed, Application for leave to appeal against sentence refused.

R v Burling & Gill [2011] QCA 051 Margaret McMurdo P, Chesterman JA and Philippides J 25/03/2011

Sentence Applications from the Supreme Court, Trial Division — Grounds for Interference — Sentence Manifestly Excessive — On 25 November 2010, this Court dismissed the applicants’ appeals against their convictions of importing a commercial quantity of ecstasy — The Court gave the parties leave to make further submissions as to the applications for leave to appeal against sentence in light of the recent decision of Hili v The Queen; Jones v The Queen — Both Burling and Gill originally contended that their sentences were manifestly excessive — Burling was sentenced to 12 years imprisonment with a non-parole period fixed at seven years and three months — Gill was sentenced to nine years imprisonment with a non-parole period fixed at five years and six months — Both applicants in their supplementary submissions contended that the sentencing judge erred in effectively considering that the “norm” for setting a non-parole period in sentences imposed under the Crimes Act 1914 (Cth) was at 60-66 per cent of the head sentence — In Hili, the High Court emphasised that there was no such “norm”; the setting of the non-parole period requires an exercise of discretion, taking into account and balancing the mitigating and exacerbating circumstances — Burling involved herself in this offending through her spousal relationship with Dehghani — In passing sentence on the applicants the Chief Justice expressed concern that there had to be parity between the sentences imposed taking into account the lesser degree of Burling’s criminality compared to Dehghani’s, and the lesser culpability still of Gill’s offending compared to the others — The Chief Justice expressed a view that 12 years’ imprisonment was lenient in the circumstances but that no more could be imposed given Dehghani’s sentence — The fixing of a non-parole period for Burling was part of the exercise in achieving parity — There was the same relative reduction in head sentence and non-parole period between the three offenders — It was this consideration, not the existence of some “norm”, which led to the same proportionality in length of non-parole period in the three sentences — It is a melancholy fact that it is just such people as the applicants who are tempted by the huge profits to be made from successful large scale drug transactions to participate in them — The need for deterrence outweighs any consideration of personal hardship — Applications dismissed.

Fisher v Director of Public Prosecutions (Qld) [2011] QCA 054 Margaret McMurdo P, Chesterman JA and Ann Lyons J 28/03/2011

Appeal from Bail Application from the Supreme Court, Trial Division — Procedure — Bail — Revocation, Variation, Review and Appeal — This is an appeal from a decision of a judge of the Trial Division on 24 December 2010 refusing the appellant, Jason Ian Fisher’s, application for bail under the Bail Act 1980 (Qld) — He was originally charged with two counts of burglary and stealing, the first committed on 8 September 2009 and the second on 18 September 2009 — These offences were committed whilst he was on parole — Once charged, he was remanded in custody and his parole was revoked — Whilst in custody, he was charged with five co-offenders that, on 9 April 2010, he unlawfully supplied the dangerous drug, Buprenorphine, within a correctional facility — He was refused bail by the Supreme Court on 23 September 2010 and again on 24 December 2010 — On 24 December 2010, the appellant made an unsuccessful application for bail on the outstanding drug charge to a different Trial Division judge — The primary judge’s reasons were brief — The judge was not satisfied that the appellant had demonstrated there had been sufficient changed facts or circumstances so as to justify the grant of bail when it had been refused in September — On Appeal — It is necessary to fully comprehend the appellant’s criminal history for it provides the primary reason for the refusal of his applications for bail on 23 September and 24 December 2010 — The primary judge, in refusing bail on 24 December 2010, did not refer to the information that, since the appellant’s unsuccessful bail application in September, he had pleaded guilty and been sentenced for two of the three offences on which he sought bail in September — His sentence of imprisonment was suspended from 14 December 2010 with an operational period of 12 months — The penalty imposed suggested that the sentencing judge had some confidence in the appellant’s prospects of rehabilitation — In my view, it was a significant change in circumstance since the September bail application that may now justify granting bail — The fact that the judge did not refer to that information in his reasons for refusing bail suggests his Honour did not give it the careful consideration and weight it deserved — I turn now to consider the matters under s 16(1) directly relevant to whether bail should be granted or refused — The appellant has some convictions for breaches of bail but his criminal history generally suggests he has met his many grants of bail in the past — If granted bail with the residential, reporting and drug testing conditions he proposes, I do not consider there is an unacceptable risk that he would not answer his bail — The real concern in this finely balanced case is whether the appellant is likely to re-offend whilst on bail — For a 31 year old, the appellant has a lengthy criminal history which provides considerable weight to the respondent’s contention that he may re-offend if granted bail — His criminal history seems to be largely related to his drug addiction — His counsel contends that this has broken the cycle of his drug addiction — The District Court judge who most recently sentenced him to a fully suspended term of imprisonment appears to have accepted this submission — Were the appellant to be granted bail on the conditions he proposes, in addition to his residential, curfew, reporting and drug testing conditions, he now has a suspended sentence hanging over his head until 14 December 2011 — The incentives for him not to re-offend are many — The consequences for him if he re-offends are dire — HELD: Appeal allowed, Order of 24 December 2010 set aside, Bail granted with conditions.