CIVIL APPEALS
Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286 Margaret McMurdo P, Muir JA and Boddice J 14/10/2011
General Civil Appeal — where the respondent claimed damages for defamation against the appellant in respect of material published in a newspaper — where an application to strike out six of seven imputations pleaded by the respondent was dismissed — where the material complained of appeared as an item in a column entitled “City Beat” in the business section of the newspaper — where adjacent to words appeared a cartoon of a naked plaintiff, standing in a section of steel tubing on which was etched “Palmer Tube Mills” — whether words complained of are capable of conveying a defamatory meaning is a question of law — where in deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader — where in determining what the ordinary reasonable reader would understand from what is said in the publication, it is necessary to have regard to the form of publication — where here, it is a gossip column — where the ordinary reasonable reader will have regard to the fact that the words in the item have juxtapositioned beside them a cartoon of a naked respondent with a section of tubing marked “Palmers Tube Mills”, reminiscent of a barrel, covering his nakedness — where the ordinary reasonable reader will understand such a cartoon as one commonly used to depict a person who has lost everything, including their clothes — where reading the publication as a whole, the ordinary reasonable reader would distil that the publication was recording that the respondent, once a swashbuckling entrepreneur worth $180 million, had lost greatly in business deals in recent years, had had to sell his home, was now being sued for unpaid entitlements in relation to his last asset, and had even lost his “precious” asset, a two mast clipper, that had been sold. Appeal dismissed.
Stewart v White [2011] QCA 291 Margaret McMurdo P, Muir JA and Margaret Wilson AJA 18/10/2011
General Civil Appeal — where the respondent client entered into a joint venture agreement with the appellant mortgage broker to purchase three parcels of land for investment purposes — where the respondent relied upon representations made by the appellant that the venture would be profitable — where the joint venture agreement contained exclusion clauses — whether the agreement covered liability for pre-contractual negligent advice or representations concerning the profitability of the proposed venture — whether the agreement covered liability for pre-contractual negligent advice or representations concerning the profitability of the proposed venture — where it was found that the appellant was the sole director of Financial Services, that the conduct of Financial Services was that of the appellant and that Financial Services had failed to discharge the onus on it of showing that there were reasonable grounds for making the representation as to the profit to be obtained from the sale of the land. Appeal dismissed.
Sands v Deputy Commissioner of Taxation [2011] QCA 292 Muir and Fraser JJA and Margaret Wilson AJA 18/10/2011
General Civil Appeal — where the respondent obtained a judgment in the trial division for recovery of a director’s penalty from the appellant pursuant to s 222AOC of the Income Tax Assessment Act 1936 (Cth) — where the evidence supporting the claim consisted of two affidavits and an evidentiary certificate — where the appellant contended he did not receive the penalty notice — where the appellant argued that there was a failure to determine his English language capacity, that he was not given adequate notice of the respondent’s case at trial, and that he was given no advice about his rights or provided with legal assistance — where there was no evidence to support the appellant’s further contention that he did not receive the penalty notice — where s 222AOF of the Income Tax Assessment Act 1936 (Cth) permitted the respondent to serve the penalty notice by post — where at the hearing of the appeal and (as the transcript suggests) at the trial, the appellant appeared to understand English and to speak it fluently — where the appellant told the Court that he suffered from Alzheimer’s disease and dementia — where if he does have that misfortune, it was not apparent that the diseases rendered the appellant incapable of prosecuting his appeal. Appeal dismissed.
State of Queensland v Heraud [2011] QCA 297 Muir, Chesterman and White JJA 21/10/2011
General Civil Appeal — where the respondent claimed compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (Qld) from WorkCover Queensland — where the respondent’s solicitors served a notice of claim pursuant to the Personal Injuries Proceedings Act 2002 (Qld) on the State of Queensland (Arts Queensland) — where the primary judge found the Department of Public Works was the respondent’s employer — where the primary judge found the Department of Public Works was an entity separate and distinct from the State of Queensland — where the respondent was employed by the State of Queensland, or the Crown in right of the State of Queensland, and not by the Department of Public Works — where the respondent’s claim notified under the provisions of the PIP Act was therefore a claim for damages for personal injuries against the same juristic person as satisfied his claim for compensation brought under the Workers’ Compensation Act — where the consequence of a payment of compensation to the respondent was made pursuant to the provisions of Ch 5 of the Workers’ Compensation Act and was regulated by that chapter — whether the cause of action was compromised by the statutory consequences imposed upon acceptance of the lump sum. Appeal allowed, Judgment set aside, Declare that PIPA does not apply in respect of any injury suffered by the respondent on 5 June 2008.
Attorney-General for the State of Queensland v Lawrence [2011] QCA 301 Fraser JA 25/10/2011
Application for Stay of Execution — where an order was made in the trial division under s 30(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) rescinding the respondent’s continuing detention order and imposing a supervision order — where the primary judge refused an application for a stay of the order until determination of an appeal by the applicant — where the applicant filed a notice of appeal and applied to the Court of Appeal for a stay of execution of the order — where there were inconsistencies in the accounts given by the respondent to psychiatrists evaluating him pursuant to s 29 of the Act — where the appeal is listed for hearing within a fortnight — where the respondent would be housed at the Wacol precinct and subject to monitoring and reporting conditions — whether the order ought to be stayed until the hearing and determination of the appeal. Stay granted.
CRIMINAL APPEALS
R v Butler & Lawton & Marshall [2011] QCA 265 Muir, Fraser and Chesterman JJA 4/10/2011
Appeal against Conviction — where the appellants were convicted of two counts of rape and one count of attempted rape — where the appellant, Lawton, claimed the verdicts were unreasonable having regard to the evidence — where Lawton alleged the trial judge failed to properly direct the jury with respect to s 7(1)(c) of the Criminal Code — where Lawton further claimed that there was a miscarriage of justice owing to the manner in which the Crown Prosecutor’s statements and questions were conveyed — whether the Crown Prosecutor’s expressions would have distracted the jury from its task of assessing whether the evidence established Lawton’s guilt beyond reasonable doubt — whether the appellant’s presence amounted to aiding for the purposes of s 7(1)(c) of the Criminal Code — whether the trial judge failed to adequately direct the jury with respect to the meaning and operation of s 7(1)(c) of the Criminal Code — whether the verdicts were unreasonable having regard to the evidence. Appeal allowed, Convictions and verdicts set aside, Verdicts of acquittal entered.
R v MBO [2011] QCA 280 Fraser and White JJA and Atkinson J 11/10/2011
Appeal against Conviction — where the appellant was convicted after a trial of five counts of indecent dealing with his daughter and one count of common assault against his son — where the appellant challenges the conviction on count 1 on the basis of lack of adequate particularity — whether the charges on count 1 were sufficiently particularised — where the appellant contends that evidence of harshness and physical violence against the complainants and the complainants’ mother ought not to have been admitted — whether the primary judge erred in not discharging the jury following this evidence — whether this resulted in an unfair trial. Appeal dismissed.
R v Lui & Johnston [2011] QCA 284 Muir and Fraser JJA and McMurdo J 14/10/2011
Appeals against Conviction — where the appellants were convicted of murder pursuant to s 302(1)(b) of the Criminal Code 1899 (Qld) — where the appellants planned to rob the deceased — where the deceased was tied up with an octopus strap secured around his neck and ankles pulling his head back towards his feet — where the deceased suffered from coronary atherosclerosis — where the appellants argued that the deceased’s death was caused by a heart attack unconnected with the use of the octopus strap — whether the prosecution proved beyond reasonable doubt that the deceased’s death was caused by an act done by the appellants in the commission of the robbery — whether the conviction was unsafe and unsatisfactory — where the appellants submitted that the primary judge failed to adequately deal with the cause of death of the deceased in his summing up — whether the primary judge erred in his summing up to the jury — where the appellants submitted that the primary judge erred in permitting the prosecution in its closing address to rely on heart attack as another cause of death — where the appellants argued that they were unfairly prejudiced by the broadening of particulars — whether the acts particularised by the prosecution were a substantial or significant cause of the deceased’s death — whether the trial judge erred in allowing the prosecution to mount an alternative case. Appeals dismissed.
R v GAM [2011] QCA 288 Margaret McMurdo P, Fraser JA and Dalton J 18/10/2011
Appeal against Conviction — where the appellant was convicted after a trial of offences including burglary by breaking in the night with violence, while armed and in company, stealing, assault occasioning bodily harm while armed and doing grievous bodily harm — where the only evidence against the appellant was his admissions to the police — where the appellant and respondent adduced further evidence on appeal — whether that evidence, if received, when combined with the evidence at trial requires the convictions to be set aside and a new trial ordered. Appeal allowed, Convictions of guilty are set aside, New trial ordered.
R v Wade [2011] QCA 289 Muir and Chesterman JJA and Margaret Wilson AJA 18/10/2011
Appeal against Conviction — where the appellant was convicted of murder on his own plea of guilty and sentenced to life imprisonment — where the appellant told his legal representatives prior to trial that he intended to plead not guilty — where there was psychological evidence that the appellant experienced a heightened state of arousal when confronted with a situation for which he was not prepared and did not deal well with large crowds of people — where the appellant had requested to not be present at his trial — where the appellant requested that his legal representatives provide him with witness statements to read during the trial so as to distract him from his environment — where the appellant consistently maintained to his legal representatives that he was not guilty of murder — where the appellant made admissions of guilt to a number of people, including police — where the admissions were inconsistent and did not accord with medical evidence — whether the appellant should be allowed to withdraw his plea of guilty — whether the conviction for murder gave rise to a miscarriage of justice. Appeal allowed, Appellant’s plea of guilty be set aside, Appellant’s conviction be set aside, There be a re-trial.
R v Hill, Bakir, Gray & Broad; ex parte Cth DPP [2011] QCA 306 Muir and White JJA and Atkinson J 28/10/2011
Appeals against Conviction; Sentence Appeals by Cth DPP; Sentence Applications — where Bakir, Hill and Gray were found guilty by a jury after a trial of drug offences including importation of a commercial quantity of a border controlled drug and attempting to possess a commercial quantity of a border controlled drug — where the appellants argued that the verdicts were unreasonable having regard to the evidence — whether it was open to a properly instructed jury to find the appellants guilty — where the appellants argued that the learned trial judge erred in ruling as admissible telephone intercept recordings and evidence of drug seizures — whether the evidence was admissible — whether the jury was properly directed with respect to it — where the appellants submitted that the trial judge erred in ruling that there was independent corroborative evidence of a witness’ testimony and directing the jury as such — whether the evidence was capable of being corroborative — where the Commonwealth Director of Public Prosecutions (CDPP) appealed against the sentences imposed on Bakir, Hill, Gray and Broad — where the CDPP submitted that the sentences imposed were manifestly inadequate and that they failed to reflect the criminality of the offending and the element of general deterrence and gave too much weight to mitigating factors — whether the sentences imposed were manifestly inadequate so as to demonstrate an error in the exercise of the sentencing discretion — where Bakir and Hill also applied for leave to appeal against their sentences on the basis that the sentencing discretion had miscarried — whether leave should be granted. All appeals and applications dismissed and/or refused.
