Yeo v Attorney-General for the State of Queensland [2011] QCA 170 Margaret McMurdo P, Muir and White JJA 22/07/2011
General Civil Appeal from the Supreme Court, Trial Division — Criminal Law — Sentencing — Orders and Declarations Relating to Serious or Violent Offenders or Dangerous Sexual Offenders — This appeal is from an order of a judge of the Trial Division of this Court on 10 September 2010 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) — The judge affirmed the decision made on 4 August 2009, that the appellant, Raymond Yeo, is a serious danger to the community in the absence of an order under Div III of the Act — His Honour ordered that the appellant continue to be subject to the continuing detention order made on 4 August 2009 — On Appeal — On 10 May 2010, the United Nations Human Rights Committee found that the Act, in allowing for the detention of prisoners in prison after they had completed serving their sentences, breached Art 9(1) on the United Nations Covenant on Civil and Political Rights — Under Art 4(2) of the Protocol, the Committee requested that Australia provide “information about the measures taken to give effect to the Committee’s views” within 180 days of receiving the communication — Australia has not responded to the Committee’s Communication under Art 4(2) of the Protocol — In Attorney-General (Queensland) v Sybenga [2009] QCA 382 the judges each noted that prisoners under the Act should be held in an alternative secure form of accommodation to prison, accommodation designed for protective and rehabilitative, not punitive, purposes — If prisoners under the Act were housed in secure accommodation designed for their continuing control, care or treatment, separate from the general prison population serving sentences for criminal offences, Art 9(1) may not be breached — This outcome would be entirely consistent with the objects of the Act in s 3 — It can be accepted, however, that international law considerations, are likely to wrought considerable influence in the development of Queensland government policy — The High Court’s decision in Fardon meant that the primary judge was duty bound to apply the Act irrespective of its infringement of Art 9(1) — It follows that the judge did not err in failing to take into account international law in making his decision — The appellant’s breach was his single attendance at McDonald’s, in contravention of oral directions from corrective services officers — It is self-evident that the breach was not trivial because of the appellant’s history of offending against male children — He was attending McDonald’s for a purpose related to his rehabilitation in the community, namely, to attend a meeting of a support group of ex-prisoners (none of whom were child sex offenders) supervised by a minister of religion, who, it is not suggested, was irresponsible or without relevant training and experience — The breach was, as this Court originally identified, a relatively minor one — The judge erred in concluding that this particular breach, which was immediately and firmly prosecuted, was anything other than “relatively minor” — This Court must now re-determine the difficult question of whether to grant a continuing detention order or a supervision order under s 13 — Although his insight may not be great, the views of both psychiatrists is accepted that he now has at least some concept of the drastic consequences to him of breaching a supervision order, even if the breach is relatively minor — The proposed supervision order requires full and detailed disclosure of every aspect of his life to a corrective services officer; continuing treatment of the kind previously provided by a psychologist; abstinence from alcohol and submission to testing; written approval from a corrective services officer for any trip away from his residence; and compliance with every reasonable curfew or monitoring direction of a corrective services officer — As neither party has suggested there is any further relevant evidence, the question must be decided on the material before the primary judge — A judge must determine what is adequate protection of the community in all the circumstances — The respondent has not persuaded the Court that the adequate protection of the community in this case cannot be assured by the release of the appellant into the community under a carefully structured supervision order, conscientiously supervised by corrective services officers — HELD (brief): The Court is satisfied that the appellant is a serious danger to the community in the absence of a s 13 order, The continuing detention order of 4 August 2009 is rescinded, The appellant is released from custody subject to specified requirements until 22 July 2021.
Allianz Australia Insurance Ltd v Swainson [2011] QCA 179 Fraser JA, Ann Lyons and Martin JJ 29/07/2011
General Civil Appeal — Further Orders from the District Court — Appeal — Practice and Procedure — Powers of Court — Costs — In this appeal, the appellant insurer challenged orders made in the District Court awarding damages in favour of the plaintiff for personal injuries caused by the first defendant’s negligent driving — On 21 June 2011, the Court allowed the insurer’s appeal — The Court rejected the insurer’s challenge to the trial judge’s finding that the first defendant was negligent but adjusted the apportionment of the plaintiff’s damages for his contributory negligence from 40 per cent to 60 per cent — The parties agreed that the judgment sum of $160,103.34 should be varied to give effect to the revised apportionment of 60 per cent by substituting the amount of $106,541.85 — The insurer acknowledged that the plaintiff remained entitled to costs of the proceedings below on an indemnity basis because the varied judgment sum remained “no less favourable than [his] offer to settle” — The issue concerns the costs of the appeal — There is no sufficient ground for ordering the insurer to pay any part of the plaintiff’s costs — The insurer was required to appeal to vindicate its entitlement to a more generous apportionment and its success in that respect was not insignificant — The Court’s reasons for judgment in the appeal also demonstrate that the insurer had reasonable grounds for challenging the finding of negligence, even though it lost on that issue — The insurer’s success on contributory negligence was not complete — The plaintiff did not act unreasonably in opposing the insurer’s appeal on contributory negligence, as is demonstrated by the fact that the insurer did not obtain an apportionment as generous as that which it sought — Whilst there is some merit in the insurer’s argument that it is artificial to divorce the issue of contributory negligence from the issue of the first defendant’s negligence, and although the issue of contributory negligence could not be resolved without a full appreciation of the facts underlying the finding of negligence, the appeal on the issue of contributory negligence could have been resolved satisfactorily with reference only to the trial judge’s very extensive discussion of the evidence and detailed findings of fact — Some additional reference to the evidence would not have been inappropriate, but the insurer’s unsuccessful appeal on the negligence issue required a full record of the trial and it required the parties to embark upon a substantially more extensive examination of the evidence in preparing for and arguing the appeal than otherwise would have been required — Compared to many other appeals, this appeal was not complex and the hearing was conducted with commendable efficiency — Even so, the importance of the appeal for the parties and its complexity was substantially increased by the insurer’s challenge to the finding of negligence — HELD: Vary the judgment below by substituting the amount of $106,541.85 for the amount of $160,103.34, respondent to pay one quarter of the appellant’s costs of the appeal on the standard basis.
Zevering v Callaghan & Ors; Callaghan & Anor v Zevering [2011] QCA 180 Fraser and White JJA and Peter Lyons J 29/07/2011
General Civil Appeal from the Supreme Court, Trial Division — Equity — Trusts and Trustees — Powers, Duties, Rights and Liabilities of Trustees — Remuneration — Allowance by the Court — Principles and Grounds for Grant or Refusal — The appellant was for a number of years a trustee of The Outlook Estate Trust — She made an application invoking the Supreme Court’s inherent jurisdiction as well as pursuant to s 101 of the Trusts Act 1973 (Qld) (Trusts Act) for an order for her remuneration as a trustee, which, in effect was for an increase beyond that which the current trustees are prepared to pay — She appeals against the dismissal of that application — In 1999, some 26 persons, including the appellant, became participants in a solicitor’s contributory mortgage scheme (the scheme) — Shortly after the money was advanced, the mortgagor fell into default, and the project stalled — Subsequently, the participants established the trust, with the intention of taking over the mortgage, and completing the project — The appellant was one of the original trustees — A meeting of unit holders took place on 18 March 2002 — At that meeting, it was resolved unanimously that the trustees should be remunerated for their work on the project — It was also resolved that the remuneration be at the rate of $20 per hour — On 15 October 2009, orders were made, subject to any cross-application by the appellant, for payment of both base remuneration and special remuneration, in accordance with the application, including the proposed remuneration for the appellant — A cross-application by the appellant resulted in a contested hearing in May 2010 — This appeal is against the dismissal of her application — His Honour noted the scheme of remuneration supported by the current trustees — With reference to both the inherent jurisdiction of the Court and that conferred by s 101(1) of the Trusts Act, his Honour stated that “what is required to exercise that discretion, are ‘exceptional circumstances’” — His Honour then stated that the appellant had not established the existence of any exceptional circumstance which would warrant the allowance of remuneration over and above that agreed upon between the trustee and the unit holders, and accordingly held that her application failed — On Appeal — On its face, s 101(1) confers on the Court a discretion to authorise remuneration for a trustee in very broad terms — The breadth of those terms is apparent from the only stated qualification, namely, that the circumstances appear to the Court to justify the payment of remuneration to a trustee — Where a discretion is conferred upon a Court, it is inappropriate that the discretion be treated as subject to limitations not contained in the statute which grants the discretion — His Honour refused relief expressly because the appellant had not established the existence of any exceptional circumstance — There is independent evidence to show that the appellant undertook significant work in the calendar years 2002, 2003, and 2004 — It can be said that the appellant exercised a significant degree of responsibility; that a substantial part of the work she undertook required the application of skill and knowledge; and that her work was of considerable value to the beneficiaries — In the circumstances, it seems appropriate to authorise the payment of the sum of $150,000 to the appellant as remuneration for her services as trustee — Order that the appeal be allowed, the appellant be authorised to charge the respondents the sum of $150,000 as remuneration, Costs to be paid out of the Trust on an indemnity basis — HELD: Parties allowed seven days in which to file submissions as to the form of the proposed orders.
CRIMINAL APPEALS
R v KAF [2011] QCA 158 Chief Justice, P D McMurdo and Dalton JJ 14/07/2011 (delivered ex tempore)
Appeal against Conviction from the District Court — Verdict Unreasonable or Unsupportable Having Regard to Evidence — The appellant was convicted on one count of unlawfully and indecently dealing with a child under 12 years of age being his lineal descendant — That offence occurred on the 23rd of December 2008 — The appellant was acquitted of four other aggravated offences with which he was charged, allegedly committed on the following day: three of indecent dealing with the same child, and one of permitting himself to be indecently dealt with by her — The appellant was sentenced to six months’ imprisonment suspended after a period of the one day already served — The learned primary Judge in this rather unusual case said that he was not ordering further actual imprisonment because of what he regarded as an exceptional circumstance, namely the “extraordinary” nature of the jury’s verdict — The Judge had earlier said that he could not identify “a rational basis for the jury’s verdict”, drawing the prosecutor’s response that she had “struggled with it also” — The Judge’s concern about the verdict of guilty rested in the circumstance that the events of the 24th of December, which involved acquittals, “were followed literally immediately by a fresh complaint” to the appellant’s other daughter J, to his former wife S, and to S’s then partner, M — There was no apparent difference of significance in the quality of the complainant’s evidence of the events on the respective days, as a perusal of the record shows — There was no apparent basis for assessing the alleged conduct on the 24th of December as less plausible than that of the day before — The evidence disclosed no reason why the complainant would advance false allegations in relation to one day but not the other — The contention that the evidence of the complaints related to the events of the 23rd of December but not the 24th of December, therefore reflecting on the credibility of the complainant’s evidence in relation to the events of the second day is not, when closely examined, sustainable — The conviction is therefore inconsistent with the acquittals, and that the conviction should be set aside and judgment and verdict of acquittal entered — That view is reinforced by the misgiving so strongly expressed by the trial Judge, an expression of that misgiving which drew the support of the prosecutor — HELD: Appeal allowed, conviction on count 1 be set aside, judgment and verdict of acquittal be entered on that count.
R v Dehghani; ex parte Cth DPP [2011] QCA 159 Margaret Wilson AJA, Ann Lyons and Martin JJ 15/07/2011
Sentence Appeal by Cth DPP from the Supreme Court, Trial Division — Appeal against Sentence — Sentence Manifestly Excessive or Inadequate — On 3 November 2008 the respondent pleaded guilty to one count of importing a commercial quantity of the border controlled drug 3,4-Methylenedioxymethamphetamine (MDMA — ecstasy) in contravention of s 307.1 of the Criminal Code Act 1995 (Cth) — On 24 July 2009 he pleaded guilty to further Commonwealth financial offences — The maximum penalty for the drug importation offence was life imprisonment — On 24 July 2009 the respondent was sentenced to 10 years 10 months imprisonment with a non-parole period of six years six months (60 per cent) for the drug importation offence — In arriving at the sentence for the drug importation, the sentencing judge started at 18 years, which she reduced to 15 years with a non-parole period of nine years on account of the plea of guilty and past co-operation — Her Honour then reduced that notional sentence to 10 years 10 months with a non-parole period of six years six months to take account of an undertaking to co-operate with the authorities pursuant to s 21E of the Crimes Act 1914 (Cth) — Thus her Honour took 27.78 per cent off the sentence which would have been imposed but for the future co-operation — On Appeal — The law recognises that a person who co-operates with law enforcement agencies should receive a benefit in sentencing — Prospective co-operation is recognised in s 21E — Where the Crown alleges a failure to fulfil an undertaking to give prospective co-operation, it must establish the failure and the absence of reasonable excuse for it — It probably must do so to the standard of beyond reasonable doubt — In the present case both of these factors were conceded — The extent of the respondent’s co-operation at the trial was minimal — The sentencing judge rightly took the respondent’s statement dated 1 July 2009 into account as past co-operation in reducing his sentence from 18 years to 15 years — The undertaking which resulted in his sentence being reduced from 15 years to 10 years 10 months was an undertaking to co-operate prospectively by giving truthful evidence against Burling, Gill and Simich in proceedings arising out of the events described in his statement — The jury may well have considered that his evidence before he was declared hostile, which failed to inculpate Burling and Gill, co-offenders in the drug importation, was glaringly improbable — In light of the respondent’s partial breach of his undertaking, this Court may substitute such a sentence not exceeding 15 years imprisonment as it thinks appropriate — This Court is neither required nor permitted to re-exercise the discretion exercised by the sentencing judge in deciding that the appropriate sentence, but for the undertaking to co-operate, would have been 15 years imprisonment — In recognition of the respondent’s undertaking to co-operate by giving truthful evidence against Burling, Gill and Simich, the sentencing judge discounted his sentence substantially — He breached that undertaking without reasonable excuse by his refusal to give evidence inculpating Burling and Gill — In the event, Burling and Gill were convicted, but their trial was made longer and more complex by the respondent’s behaviour, with attendant cost to the community — HELD: Appeal allowed, Sentence on count 1 (drug importation) set aside, The respondent sentenced to 14 years imprisonment to expire on 7 February 2021 with a non-parole period to expire on 7 November 2014
R v Miller [2011] QCA 160 Chief Justice and Chesterman JA and Margaret Wilson AJA 15/07/2011
Sentence Application from the Supreme Court, Trial Division — Appeal Against Sentence — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant was charged with manslaughter of her elderly mother in failing to provide her with necessary medical attention — She pleaded guilty and was sentenced to five years imprisonment suspended after 12 months with an operational period of five years — The facts were exceptional — The applicant’s mother, Kazimiera Hys, was aged 76 when she died — Because of her deteriorating health and increasing inability to care for herself, she moved into the applicant’s house in 2005 — Police and paramedics attended the applicant’s house on the night Mrs Hys died — The living conditions were squalid: filth, faecal smearing on the walls, an overwhelming smell of animal urine and rotting food, and gross clutter and rubbish piled up to the point where moving around the house was difficult — An autopsy was conducted on 31 May 2006 — Mrs Hys was 154 centimetres in height — At autopsy she weighed 36 kilograms — The pathologist considered that the cause of her death was sepsis as a consequence of multiple decubitus ulcers (commonly known as bed sores), and also noted malnutrition, dehydration, arthritis, hypertension, and coronary atherosclerosis — Bed sores develop in four stages — Mrs Hys had six stage 4 bed sores, one stage 3 and three stage 2 bed sores — On Appeal — In the absence of any demonstrated error, and there is none here, this court should be especially circumspect in pursuing any inclination to adjust the sentence which was imposed — It is important to recognize that the primary Judge acknowledged the difficulty in the relationship between the applicant and the deceased, and the applicant’s own depressed state — In the end, allowing as well for the not infrequent judicial statements about the breadth of the sentencing discretion for the crime of manslaughter in particular, I am not satisfied that the sentence imposed was manifestly excessive — I consider the imposition of a head term of five years was open to the Judge, where the applicant’s protracted neglect led to the loss of human life, and that suspension after 12 months appropriately reflected the circumstances of mitigation including the nature of the relationship between mother and daughter and the daughter’s own incapacities — HELD: Application refused.
Day v Grice [2011] QCA 178 Margaret McMurdo P and Atkinson and Peter Lyons JJ 29/07/2011
Application for Leave s 118 DCA (Criminal) — Traffic Law — Traffic Regulation — Speed-Limits — On 22 December 2009, a traffic infringement notice was issued to the respondent, alleging that he had travelled at a speed of 117 km per hour on a road for which the speed limit was 100 km per hour — The respondent elected to contest the matter, resulting in a hearing in the Magistrates Court — He was found guilty, and a fine was imposed — He appealed to the District Court, successfully — On Appeal — The ultimate issue in the proceedings before the Magistrate was whether it was shown beyond reasonable doubt that the respondent had exceeded the speed limit — A subsidiary issue was whether the evidence from Senior Constable Cremasco of the reading from the radar device was evidence of the respondent‘s speed at the time of the alleged offence — On the latter issue, Exhibit 2 was a certificate signed by the applicant stating that the radar device was tested on 13 November 2009 in accordance with the appropriate Australian Standard for testing the device, and was found to produce accurate results at the time of testing — Exhibit 4 was evidence of a delegation of the power of the Commissioner to issue a certificate under s 124(1)(pa) of the Transport Operations (Road Use Management) Act 1995 (Qld) — The combined effect of s 124A(2), s 124(4) and s 124(5) is that a challenge of the kind identified in s 124(4) can only be raised by notice given in accordance with s 124, or in the circumstances identified in s 124A(2) — The notice given by the respondent under s 124(4) and s 124(5) did not notify an intention to challenge the accuracy of the radar device — Accordingly, no basis has been identified for not accepting the accuracy of the reading of the device — The respondent‘s notice, given to the prosecution shortly before the hearing in the Magistrates Court, did not raise this ground — The certificate from Senior Constable Cremasco that he used the radar device in accordance with the appropriate Australian Standard could not be challenged in the proceedings — Senior Constable Cremasco recorded his conversation with the respondent when he intercepted the vehicle — The recording was played, and a copy tendered at the Magistrate’s Court trial — A transcript was made available at the hearing of this appeal, there being no suggestion that the transcript was not accurate — The recording included a statement by the Senior Constable to the respondent that “I checked your speed at 117 in a 100 zone”, to which the respondent replied, “Was it that high, was it?” — Senior Constable Cremasco then asked the respondent what speed he thought he was doing, to which the respondent replied “over 100 but I didn‘t think — I didn‘t think I was doing, I thought it was under one hundred and ten” — The basis for the respondent‘s conviction in the Magistrates Court was the evidence of his admissions of driving at a speed in excess of the speed limit, not the evidence relating to the recording of the speed by the radar device — HELD: Application granted, Appeal allowed, Set aside the orders of the District Court, Appeal to the District Court dismissed.
CIVIL APPEALS
General Civil Appeal from the District Court — Professions and Trades — Auctioneers and Agents — Construction of Statutory Provisions — Remuneration — The appellant appeals against an order of a judge of the District Court dismissing the appellant’s claim against the respondents for commission in respect of the sale of a parcel of real property at Redbank Plains owned by the respondents — By a document dated 16 June 2006 (“the appointment”) executed by the first respondent on behalf of all respondents, the respondents appointed the appellant as the respondents’ agent for the sale of the property — The appointment was in Form 22a, the form approved under the Property Agents and Motor Dealers Act 2000 (Qld) (“the Act”) — Prior to the appointment, Mr McBride, a director or employee of the appellant which carried on business as a real estate agent, contacted the first respondent with a view to having the property listed with the appellant — A contract for the sale of the property was entered into on 17 July 2006 for a sale price of $9m — Under Special Condition 4.1, the respondents consented to the buyer applying to the Ipswich City Council for a material change of use and/or reconfiguration of the property — The respondents’ former solicitors, in a letter to the buyer’s solicitors of 23 November 2007, purported to give notice of termination of the contract pursuant to Special Condition 4.6 on the grounds that the buyer had not obtained development approvals pursuant to the Special Conditions of the contract — The buyer commenced proceedings in the Supreme Court for specific performance of the contract — The Supreme Court proceedings were compromised by the respondents and the buyer in terms of a Deed dated 17 March 2007 — On Appeal — It was common ground between the parties at first instance, accepting as authoritative pronouncements on the point in QUYD P/L v Marvass P/L [2008] QCA 257, that substantial compliance with the Form 22a was sufficient — The approved form specified that the agent “State how you will perform the service AND any conditions, limitations or restrictions on the performance of the service. (e.g. holding of open house, performing service as multi-list or conjunction sale, when and how auction to be conducted).” — The approved form was thus one which “specified information … to be included in … the form” — The required information was not included in clause 4.1 of the appointment and the appointment was therefore “not properly completed.” — It follows that there was not substantial compliance with s 134(1) and that the appellant was not properly appointed under Division 2 — Consequently, by operation of s 140(1), the appellant had no entitlement to sue for or recover any commission — In determining whether there has been substantial compliance with the approved form, it is a pertinent consideration that a role of the form is ensuring that the appointment by a client of a real estate agent to perform a prescribed service is in a document which fulfils the requirements of section 133(3) of the Act and appropriately serves the purpose of protecting the interests of the client — The information required by s 133(3)(a) and clause 4.1 of the Form 22a to be “stated” is important — Section 133(3)(a) states that the appointment “must” provide it — When clause 4.1 is left uncompleted, as this one was, not only will there be no record of how the agent is to perform the work required of it for the subject service but there will be no agreement in that respect — The omission was both “substantial” and “material” — HELD: Appeal dismissed with costs.