General Civil Appeal — where appellant and respondent entered a put and call option deed granting the respondent the right to purchase two lots — where those lots had been partially resumed and had vested in the Crown — where that resumption had been acknowledged by the parties — where the fundamental issue in the appeal is whether the avoidance and termination provisions of the Land Sales Act 1984 (Qld) apply to a contract for the sale of land part of which has been resumed under the Acquisition of Land Act 1967 (Qld) — where the terms of s 8(1) of the LSA refer to “operational work for the proposed allotment”, suggesting subdivision of land for proposed development, and to requirements for a “development permit” or “compliance permit” for the reconfiguration of lots, concepts relevant not to resumption, but to land development — where the terms of s 9 of the LSA similarly, are those of property development, not resumption — where in the Second Reading Speech for the Land Sales Bill, the Attorney-General said “the purpose of this legislation is to place in an appropriate Act the law dealing with the sale of proposed subdivisions of land and proposed lots being either building units or group titles” — where it might, not unreasonably, be argued that had the legislature intended the LSA would not apply to a resumption situation; it could have expressly excluded resumption from the otherwise literal application of the requirements of sections 8 and 9 — where the whole of the Act, and the central provision s 8 in particular, make it abundantly clear that the LSA has no application in a resumption situation, which falls to be regulated by the Acquisition of Land Act and the terms of the subject contract. Appeal allowed, declarations and orders set aside with costs.
Deputy Commissioner Stewart v Dark [2012] QCA 228 Muir and Gotterson JJA and Mullins J 24/08/2012
Application for Leave Queensland Civil and Administrative Tribunal Act — where respondent was a Queensland Police Service constable — where respondent directed to attend a disciplinary hearing involving nine matters of alleged misconduct that occurred in the course of a bitter marriage breakdown with his wife — where applicant found six matters were substantiated and amounted to misconduct — where sanction of dismissal from QPS imposed — where respondent applied to QCAT to review applicant’s decision — where QCAT member confirmed five of the matters and the sanction — where the member set one matter aside — where respondent then appealed to the QCAT Appeal Tribunal — where Appeal Tribunal confirmed two matters (1 and 2), set aside remaining four matters, quashed the sanction dismissing the respondent from QPS and imposed a six month suspension — where applicant submits Appeal Tribunal erred in finding that respondent’s behaviour in two of the unsubstantiated matters (3 – being untruthful to a superior, and 4 – providing false and misleading information in a statutory declaration) did not amount to misconduct — where applicant submits sanction imposed with respect to matters 1 and 2 was manifestly inadequate — where respondent submits that even if it was found Appeal Tribunal erred in determining that matters 3 and 4 did not amount to misconduct, this Court should remit the matter back to the Appeal Tribunal to determine the appropriate sanction along with matters 1 and 2 — whether matters 3 and/or 4 amounted to misconduct — where the respondent was queried by an Acting Senior Sergeant in respect of his absence from work on particular days — where the respondent stated that he was home sick with the flu — where the respondent eventually stated that he went away with a person by the name of Dee for the weekend on the Gold Coast — where the Appeal Tribunal may not have had sufficiently in mind the considerations which render a police officer’s untruthfulness to a superior inherently more serious than the untruthfulness of an employee in many other areas of employment in both the public and private sectors — where despite the foregoing, the quite remarkable circumstances in which the subject conduct occurred justified the Appeal Tribunal’s finding that misconduct was not proved — where it was accepted by the parties, and is established by the authorities, that it is not necessary that in order for conduct to constitute “misconduct” it must be acts or omissions relating directly to a police officer’s employment as a police officer or the performance of the police officer’s duties — where the officer prepared a Statutory Declaration under the provisions of the Oaths Act 1867 stating that he had forfeited all rights that he may have had in regards to a property — where during the officer’s discipline interview, the officer admitted that the information contained in the Statutory Declaration was false and he had no intention of signing his rights to the property over to his former wife — where it may be accepted that not every act of dishonesty in a police officer’s private life will constitute misconduct — where the respondent’s duplicity was studied and involved the use of a purported statutory declaration to lend solemnity to his protestations — where the respondent’s behaviour constituted misconduct that was such as to engender a lack of trust on the part of other police officers and members of the public — whether sanction imposed manifestly inadequate — whether matter should be remitted to the Appeal Tribunal to determine sanction. Application granted, Appeal allowed, Matter remitted to Appeal Tribunal to determine the appropriate sanction.
Schache & Ors v GP No 1 Pty Ltd & Ors [2012] QCA 233 Margaret McMurdo P and Muir and White JJA 31/08/2012
General Civil Appeal — where appellants were four of 578 investors (growers) in a number of managed investment schemes relating to the growing, harvesting and sale of pearls — where second respondent “responsible entity” of schemes — where schemes comprised of product disclosure statement, constitution, and management agreement — where growers had their pearls pooled with those of other growers unless they elected otherwise and were entitled to a proportional interest — where second respondent went into administration — where administrators entered into a contract with the first respondent to provide management services to the second respondent — where administrators also caused second respondent to enter into an agreement with third respondent for the preparation of sale and marketing of scheme pearls — where pearls received by third respondent consisted of a mix of scheme pearls and pearls owned by second respondent — where appellants made application for various interlocutory orders — where primary judge did not grant orders — where appellants ordered to pay respondents’ costs of the application on indemnity basis — where appellants did not directly challenge primary judge’s decision not to make orders — where appellants submitted primary judge should have found a triable issue and made more limited further orders until further order — where there was no evidence that the application was supported by the great bulk of growers — where the outcome of the interlocutory application had the potential to adversely affect the financial interests of such growers to a material extent — where evidence did not disclose the need for any urgent relief to protect the interests of the appellants or growers — where it is apparent that the sole point of the appeal is to attempt to overturn the indemnity costs order — where the appropriate costs order to be made on the determination of an interlocutory application depends on the result of that application and on the merits of the parties’ respective contentions in that application, not on the identification of a triable issue or on the merits of the issues to be ultimately decided on the trial of the proceedings — where the matters canvassed above make it abundantly plain that the prospects of the appellants persuading any judge to make the orders sought, or orders which had similar consequences in the circumstances existing at the time of the hearing before the primary judge, were exceedingly slight — where the bringing and prosecution of the application for interlocutory relief without affording growers the opportunity to be heard, coupled with the maintenance of the application notwithstanding the evidence of likely serious financial detriment to the parties, growers and employees of Arafura should the relief sought be granted — where the appellants sought an order that the respondents pay their costs of the application and of the appeal — where that may be thought somewhat bold in light of the absence from the notice of appeal of any ground in respect of costs and the concession by the appellants’ solicitor at first instance that the appellants could not resist an order for costs on the standard basis — where counsel for the appellants conceded, in effect, that there was no reasonable prospect that the relief sought in the amended interlocutory application would be granted — where it was not the primary judge’s obligation in a hard fought hearing in which the appellants were represented by senior counsel to refashion the applicant’s case — where it remains fundamental to the adversarial process that the parties select the issues for determination by the Court and “[t]o a large extent the parties to such proceedings are bound by the manner in which they conduct them”. Appeal dismissed with costs.
CRIMINAL APPEALS
R v MBQ; ex parte A-G (Qld) [2012] QCA 202 Margaret McMurdo P and Gotterson JA and Philippides J 10/08/2012
Sentence Appeal by A-G (Qld) — where respondent pleaded guilty to raping a three year old and unlawfully and indecently dealing with her — where respondent was 12 years old when committing offence and 14 when sentenced — where the respondent suffered from developmental immaturity and intellectual deficit so that he functioned as a nine year old at the time of the offending — where respondent was sentenced to three years supervision (youth probation) with a special condition that he attend a youth service program with no conviction recorded — where at the hearing of the appeal the Court granted the respondent leave to adduce the following further evidence — where contrary to the information provided in the presentence report and the statement of the Departmental Officer at sentence, between February and May 2012 the Department failed to refer the respondent for the treatment required under the special condition of his probation order — where in May 2012, however, the Department had him assessed by a psychologist who found him to possess a low level of crimogenic risk factors — where it is obvious from a review of the cases relied upon by the appellant that, although all resulted in more serious consequences for the offender, none involved the unusual concatenation of circumstances existing in this case — where the respondent’s plea of guilty to the offence of rape was an acknowledgement of his criminal responsibility for the commission of an objectively heinous crime, the penile-vaginal rape of a three year old girl by a 12 year old boy — where the fact that the respondent had a mental age of nine years (that is, below the age of criminal responsibility) and had limited grasp of the consequences and moral blameworthiness of his actions at the time he committed the offences is highly relevant to the exercise of the sentencing discretion — where it lessened his moral culpability for the offending so that the retributive, denunciatory and deterrent aspects of sentencing were less relevant than otherwise — where there is nothing in the primary judge’s reasons to suggest that his Honour was not fully cognisant of the relevant sentencing principles and acted upon them in this most difficult case — where unfortunately no sentence can recompense the complainant’s family for the dreadful effect of this offending on their lives — where this factor, though relevant, cannot overwhelm the other applicable youth justice sentencing principles — where in terms of the considerations for recording a conviction listed in s 184(1)(a), the objective nature of an offence of penile-vaginal rape of a three year old does ordinarily suggest that the recording of a conviction is warranted — the respondent’s age, both actual and mental, and his absence of any previous and subsequent convictions or offending strongly militated against the recording of a conviction — where it should be inferred that the recording of a conviction for the offence of rape on the respondent, who was but 12 years old at the time and with a mental age of nine, would have a detrimental effect on his otherwise positive rehabilitative prospects and on the likelihood of him gaining and retaining future employment — whether the sentence was manifestly inadequate. Appeal dismissed.
R v DBC [2012] QCA 203 Chief Justice and Holmes and Muir JJA 10/08/2012
Sentence Appeal by A-G (Qld) — where the respondent pleaded guilty to one count of maintaining an unlawful sexual relationship, two counts of indecent dealing, and six counts of rape — where the complainant was the respondent’s daughter — where respondent had no criminal history — where respondent’s wife had lengthy battle with cancer — where offending commenced subsequent to her death — where complainant could only particularise two occasions of intercourse — where respondent assisted police by particularising further offending conduct — where respondent pleaded guilty at an early stage — where respondent sentenced to nine years imprisonment for the maintaining offence with fixed parole eligibility after serving three years — where appellant submitted this sentence was manifestly inadequate — where appellant’s contentions as to the appropriate sentencing range may be contrasted with the prosecutor’s submission to the sentencing judge that the authorities indicated a range of eight to 10 years and that there was nothing in the respondent’s conduct that would “lead” to the submission that a serious violent offence declaration should be made — where appellant submitted sentencing judge erred in failing to declare the offence a serious violent offence — where appellant submitted sentencing judge gave excessive weight to mitigating features and insufficient weight to the seriousness of the offence, general and personal deterrence, and the protection of the community — whether sentence manifestly inadequate — whether serious violent offence declaration should be made — where it is plain from the sentencing remarks that the primary judge was under no misapprehensions as to the gravity of the respondent’s offending, but he was persuaded by the authorities cited to him, including Kelly and R v SBJ, that the sentencing range advocated by the prosecutor was correct. Appeal dismissed
R v Wright [2012] QCA 212 Chief Justice, Holmes and Gotterson JJA 17/08/2012
Appeal against Conviction & Sentence — where the appellant was convicted after a five day trial — where on the fourth day of the trial the appellant’s counsel and instructing solicitors sought, and were granted, leave to withdraw — where the appellant requested the opportunity to instruct a previous solicitor to continue with the trial — where the previous solicitor was located within the court precinct and requested a five minute adjournment to obtain instructions from the appellant — where the judge below refused to adjourn and directed the solicitor to the dock where the appellant was seated if he wished to speak with him — where the solicitor then informed the learned judge that he would not be acting for the appellant — where the adjournment sought was short, initially for five minutes — where had alternative representation been secured, an adjournment to the next day only was in prospect — where there was no appreciable prejudice or inconvenience to the Crown from either adjournment is suggested — where the potential prejudice to the appellant from refusal of the adjournment was significant — where the paltry address made by the appellant on his own behalf serves to illustrate the prejudice to him in having been deprived of the opportunity of legal representation for addressing the jury on all three counts — where the proper course that should have been taken was to grant the appellant an adjournment in order to explore alternative legal representation. Appeal allowed, convictions set aside, retrial ordered, sentence application dismissed.
R v FAC [2012] QCA 213 Muir and Fraser JJA and Douglas J 17/08/2012
Appeal against Conviction — where appellant convicted of one count of maintaining a sexual relationship with a child, three counts of indecent treatment, two counts of assault, one count of assault occasioning bodily harm, and five counts of rape — where appellant received head sentence of 11 years imprisonment and other concurrent sentences — where the appellant was in a de facto relationship with the complainant’s foster mother — where appellant submits complainant gave inconsistent accounts to preliminary complaint witnesses — where appellant submits witnesses did not observe significant injuries on the complainant — where the trial judge did not refer to the evidence of the counts when summing up — where the trial judge summed up to the jury between 12.30 pm and 1.04 pm — where the summing up did not identify the evidence relating to the 12 counts or refer to where that evidence may be found — where although the trial judge gave a conventional direction as to the possible impact of inconsistencies in the accounts given by persons to whom complaints were made with the evidence of the complainant, such inconsistencies were not identified — where the summing up, if anything, trivialised the defence case and had the potential to diminish defence counsel’s address — where the trial judge should have reminded the jury of the evidence relevant to each of the 12 counts having regard to the number of counts and the vagueness of some of the evidence — where the summing up failed to “accurately and fairly” put the defence case — where in order to properly put the defence case, the summing up was obliged to descend to some factual particularity, at least in respect of those points which identified evidence which, on its face, appeared improbable or where the argument advanced otherwise appeared to have substance — where there was an error in the summing up which, when taken together with the failure to relate the facts to the counts on the indictment, deprived the appellant of the chance of an acquittal. Appeal allowed, verdicts set aside, retrial of all counts on the indictment.
R v Pringle; ex parte A-G (Qld) [2012] QCA 223 Margaret McMurdo P and Muir and Gotterson JJA 24/08/2012
Sentence Appeal by A-G (Qld) — where respondent pleaded guilty to unlawfully killing his partner — where he removed children from the scene mid offence — where he was of diminished responsibility at the time of the killing — where he was sentenced to nine years imprisonment — where the most relevant purposes of sentencing under s 9(1) Penalties and Sentences Act in the circumstances of this case were the protection of the Queensland community from the offender and punishment — where that was because the respondent’s mental illness which resulted in his diminished responsibility for the killing made purposes of deterrence and denunciation of lesser significance than otherwise because of his limited moral culpability — where the judge in the present case, having determined that a nine year head sentence should be imposed, had a discretion under s 161B(3) PSA as to whether to declare the respondent to be convicted of a serious violent offence — where precedents suggest that the nine years sentence imposed with no early parole eligibility date and no declaration under s 161B(3), was within the established range for a spousal manslaughter based on diminished responsibility where there was a plea of guilty and no clear evidence of continuing danger to the community — where the unequivocal inference from her Honour’s reasons is that it was not warranted because of the mitigating features, namely, the timely plea of guilty, remorse, the nature of his diminished responsibility and, although a recovery was by no means certain, his slow but steady positive response to medication and treatment. Appeal dismissed.
CIVIL APPEALS