Court of Appeal Judgment Summary Notes

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CIVIL APPEALS

Director of Public Prosecutions (Cth) v Dang [2013] QCA 032 Muir JA and Atkinson and Martin JJ 6/03/2013 (delivered ex tempore)

Appeal from Bail Application — where the respondent was charged with attempting to possess a commercial quantity of heroin — where evidence before the primary judge suggested that the street value of the heroin was at least $15,500,000 — where evidence put before the primary judge that the respondent was a flight risk — where strict conditions of bail were imposed by primary judge — where the surety was the spouse of a convicted drug trafficker — where no challenge was made to that surety before the primary judge — where the primary judge granted the plaintiff bail — whether the primary judge erred in exercising their discretion to grant bail — where in order to succeed, an appellant must establish a relevant error of law, or a misunderstanding of pertinent facts, or show that the discretion was exercised in the way that was so unreasonable as to in itself amount to an error of law or misunderstanding of fact — where the first ground upon which the appellant relies, namely, that the respondent presented as an unacceptable risk by failing to appear was specifically argued before the learned primary Judge — where her Honour concluded that the very strict conditions she intended to impose would work to ameliorate the risk which might otherwise exist — where the appellant has not demonstrated that her Honour made an error of the type described in House v The King (1936) 55 CLR 499 in reaching that conclusion — where the second ground, namely, that the learned primary Judge failed to take into account that the surety was the spouse of a convicted drug trafficker, was not argued below — where a judge is entitled to proceed on the basis that a proposed surety is acceptable, unless it is explicitly contended otherwise — where the appellant was given the opportunity on at least two occasions to comment upon the proposed conditions of the bail order; and apart from a comment about the amount of the surety, no variation was sought. Appeal dismissed.

In the matter of an application for admission as a legal practitioner by Manuccher Ashkan Tai [2013] QCA 039 Chief Justice and Margaret Wilson and Douglas JJ 11/03/2013 (delivered ex tempore)

Admission — where the applicant had met the academic and practical training requirements for admission to the legal profession in Queensland — where the applicant had applied unsuccessfully in New South Wales — where the applicant now resided in Queensland and intended to practise in Queensland — where the applicant had been denied in New South Wales due to the serious nature, frequency and recency of convictions disclosed in the application — where a magistrate was satisfied beyond reasonable doubt that the applicant and his friend assaulted an off duty police officer and found them guilty of that charge while finding them not guilty of other associated, and to some extent more serious, charges — where the learned magistrate could not be certain who threw a punch complained of by the police officer — where there had been some non-disclosure of these matters in the New South Wales applications — where the New South Wales Board was also concerned about further convictions, including a conviction in 2010 for driving under the influence of alcohol while he was on bail in respect of the assault charge and an infringement notice for being a public nuisance for threatening behaviour in 2011 — where the applicant had the support of many solicitors and barristers in Queensland — where the applicant had taken active steps to address the convictions over 18 months, since his non-admission in New South Wales — whether the applicant was suitable to be admitted — where the most concerning aspect of the matter was the lack of candour initially shown to the New South Wales Board and that remained an issue of significance — where he has also sought advice about anger management and the abuse of alcohol and completed a certificate in anger management training and remained abstinent from alcohol for a significant period — where taking into account the fact that it is now almost 18 months since his initial application was refused in New South Wales and that he has taken active steps to address the issues that led to the convictions he had incurred and has obtained significant support from members of the profession here, it seems to that it is still appropriate for this Court to deal with the issue rather than, in our discretion, refusing to deal with it and recommending that he apply again in New South Wales — where having regard to the steps he has taken, it seems that he has addressed effectively the issues both of non-disclosure and of the conduct relevant to the offences with which he has previously been convicted. Applicant admitted

Suncorp Metway Insurance Ltd v Kilner [2013] QCA 042 Muir, Fraser and Gotterson JJA 12/03/2013

General Civil Appeal — where the respondent claimed damages for negligence following a motor vehicle accident — where the primary judge gave judgment for the respondent in the sum of $396,795.74 — where the respondent had a number of pre-existing medical conditions — where the respondent gave false or misleading statements regarding his weight, medical history, criminal history, consumption of alcohol and post accident work — where the primary judge considered respondent a credible witness with his evidence being unreliable rather than untruthful — where the primary judge preferred evidence of respondent’s experts over appellant’s experts— where the primary judge’s reasons did not discuss inconsistencies in the evidence and why the evidence of one expert was to be preferred over the other — where such an explanation was required because, on the face of it, there was nothing about the respondent’s instructions to the doctors which could cause the evidence of one to be preferred over the other — where a great many matters strongly supported the conclusion that, not only was the respondent a singularly unreliable witness, he had been untruthful in order to advance his interests in relation to the litigation — where at the very least, the judge must be seen to have considered the matters supporting a favourable credit finding against the cumulative weight of the evidence casting doubt on the witness’ credibility — whether reasons were adequate. Appeal allowed, matter remitted for retrial.

Hauff & Anor v Miller [2013] QCA 048 Chief Justice and Holmes JA and Dalton J 15/03/2013

General Civil Appeal — where the parties entered into a standard contract of sale for an apartment, being the second edition of the REIQ/QLS standard form contract for the sale of residential lots under community titles schemes — where the Standard Terms of the contract contained a subject to finance clause, where time was of the essence — where the respondent applied to a different financier from the one specified in the contract — where having failed to obtain finance approval before the extended due date, the respondent sought to terminate the contract and obtain a refund of the deposit — whether the respondent purchaser had taken all reasonable steps to obtain finance approval in accordance with clause 3.1 of the Standard Terms — whether the seller appellants could rely on contractual remedies under clause 9 of the Standard Terms in addition to common law remedies for breach of contract — whether clause 9.1 of the Standard Terms of the REIQ/QLS Contract of Sale is exclusively for the benefit of the purchaser — where regarding the obligation to take reasonable steps only as a condition regulating the purchaser’s right to terminate were finance not obtained, would ignore the interest of both purchaser and vendor in the completion of the contract — where a vendor has an interest in ensuring the purchaser makes every reasonable effort to secure necessary finance to ensure completion of the contract — where that the respondent was obliged to take all reasonable steps to obtain approval for the requisite finance was a “provision of the contract” (cl 9.1), in fact one of considerable potential importance to both vendor and purchaser, and there is no indication that it should not be regarded as falling within the purview of cl 9. Appeal allowed. Judgment be varied by declaring that the appellants duly terminated the said contract under cl 9 and that the appellants are entitled at their election to the remedies specified under the contract.

Thiess v Collector of Customs & Ors [2013] QCA 054 Chief Justice and Muir and Fraser JJA 22/03/2013

Reference by a Judge — Civil — where the plaintiff purchased a yacht overseas in December 2004 for import into Australia for home consumption — where the third defendant entered the incorrect tariff classification into the COMPILE system — where that amount included $494,471.74 by way of import duty calculated at five per cent in accordance with item 8903.92.10 (the tariff classification) and GST of $49,447.17 on import duty, totalling the amount of $543,918.91 claimed by the plaintiff — where the customs duty payable under the incorrect tariff classification was five per cent — where the customs duty payable would have been nil per cent had the correct tariff classification been entered — where the plaintiff was not made aware of the third defendant’s mistake until October 2006 — where the plaintiff contended that he had no obligation to make the payment and the first and second defendants had no right to receive the payment — where r 126 of the Customs Regulations 1926 (Cth) prescribes circumstances where customs duty can be recovered for the purposes of s 163 of the Customs Act 1901 (Cth) — where r 126(1)(e) of the Customs Regulations 1926 (Cth) provides for the recovery of customs duty where the duty has been paid through ‘manifest error of fact or patent misconception of law’ — where r 128A(5) required an application for the refund of duty under s 163 to be made within 12 months — where the plaintiff did not apply for a refund within that time — whether the plaintiff was nevertheless entitled to recover the amount of overpaid customs duty — where the plaintiff’s allegation that the plaintiff had no obligation to make the payment and the first and second defendants had no lawful right to receive the payment when it was made cannot be accepted — where the legislation established a system of self assessment under which the amount of duty and GST payable by an owner who imported goods ordinarily depended upon information entered in COMPILE by the owner — where the plaintiff did not submit that he could not readily have ascertained the facts upon which his liability for customs duty depended — where the High Court recently affirmed that, whilst context and legislative history may be significant in ascertaining the proper construction of a legislative provision, the exercise of construing legislation must begin and end with consideration of the statutory text — where the plaintiff’s claim for recovery of the import duty was barred by s 167(4). Case stated answered by (brief) stating that there is a lawful statutory defence to the plaintiff’s claim

Attorney-General (Qld) v Fardon [2013] QCA 064 Muir and Gotterson JJA and Atkinson J 28/03/2013

General Civil Appeal — where the respondent had a history of sexual offending — where the respondent was detained in custody for an indefinite term for care, control or treatment — where the appellant applied for a periodic review of the continuing detention order under s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) — where the primary judge ordered that the continuing detention order be rescinded and that the respondent be released from custody subject to a supervision order — where the respondent had established a rapport with his treating psychologist — where the respondent expressed an intention to comply with the supervision order and cooperate with Queensland Corrective Services — where the psychiatrists maintained that the risk of reoffending was moderately high — where the respondent’s relapse prevention plan was materially deficient — whether it was reasonably open for the primary judge to conclude that a supervision order would ensure the adequate protection of the community — where s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) requires ‘detailed reasons’ for making a supervision order — where the primary judge considered that there was no material difference between the evidence of the psychiatrists — where the primary judge’s reasons did not discuss inconsistencies in the evidence and whether the evidence of one psychiatrist was to be preferred over the other — where the primary judge did not explain why the cumulative weight of the matters on which she placed reliance overwhelmed the matters relied on by the appellant — whether reasons were adequate — where s 17 of the Act requires a court making a continuing detention order, an interim detention order, a supervision order or an interim supervision order to “give detailed reasons for making the order” — where the purposes of this requirement include enabling the parties and the public to understand the judge’s reasons for making such an order so as to provide “the foundation for the acceptability of the decision by the parties and by the public”, the facilitation of appeals and the creation of a record which may assist a prisoner and the appropriate authorities, including the Attorney-General, in further applications under the Act and generally in the prisoner’s management, treatment and rehabilitation. Appeal allowed. Matter remitted for rehearing.

CRIMINAL APPEALS

R v SBY [2013] QCA 050 Chief Justice and Muir and White JJA 19/03/2013

Sentence Application — where the applicant pleaded guilty to seven counts of rape of a child under 12 years — where the applicant was a juvenile — where the complainant was the applicant’s younger half-sister — where the applicant admitted police of four of seven counts of rape — where s 150 of the Youth Justice Act 1992 (Qld) requires a custodial sentence be for the shortest appropriate period — where primary judge imposed sentences of three years detention to be served concurrently — where primary judge had not applied the AB v The Queen (1999) 198 CLR 111 principle — whether sentence was manifestly excessive — where the Youth Justice Act 1992 (Qld) provides that a conviction may only be recorded against juveniles in accordance with s 176, s 183 and s 184 — where primary judge ordered that convictions be recorded for seven counts of rape — whether the primary judge erred in ordering a conviction be recorded — where it was agreed that the primary judge made an error at the commencement of his reasons by stating that the applicant was 13 at the time of the sexual offending and 14 at the time of the property offending — where this was plainly a slip — where the generality of the complainant’s account, in respect to some of the conduct, meant that police could not charge the applicant with offences of rape, or further exposure to indecent material, beyond those for which she could give some particulars — where the other rapes were known to the authorities — the admissions crystallised them into chargeable criminal conduct — where the admissions do not entitle the applicant to a significant reduction, particularly in light of the primary judge’s observation, supported by the expert opinion of the psychologist, that the applicant’s remorse had more to do with the legal consequences of the offending than insight into the offending — where it is not clear that the primary judge reflected those admissions in the sentence beyond recognising the plea of guilty — where there is a material difference in being convicted of three counts of rape and seven — when that is coupled with the statutory stricture to impose the shortest appropriate period of detention it must be concluded that error has occurred — where insufficient recognition was given to the fact that four of the rape convictions arose from the applicant’s admissions and that ought to have led to a reduction in the sentence — where his Honour gave careful thought to whether or not to record conviction — where his Honour exercised his discretion having regard to the considerations set out in s 184 and they were not limited to the nature of the offence. Application granted. Appeal allowed. Sentenced to two years and nine months imprisonment on each count of rape to be served concurrently. Applicant to be released after serving 50 per cent of the detention order. Otherwise orders affirmed.

R v Galeano [2013] QCA 051 Margaret McMurdo P and Gotterson JA and McMeekin J 19/03/2013

Sentence Application — where the applicant pleaded guilty to a single count that between 30 April 2006 and 3 August 2008, he carried on the business of unlawfully trafficking in dangerous drugs — where at the sentence hearing, the Court was informed of the applicant’s not inconsiderable criminal history — where applicant sentenced to a period of imprisonment of 10 years — where the sentencing judge considered a range from 10 to 12 years to be appropriate — whether this was manifestly excessive with regard to the authorities — whether the period of imprisonment imposed was manifestly excessive with regard being given to the applicant’s mitigating factors of cooperation with the authorities and injuries suffered during the course of the applicant’s arrest — where acknowledgement made by the applicant’s counsel at the sentence that normally 10 years would have been appropriate placed some limitation on the scope for credible argument by the applicant on this sentence range — where a review of the cases to which his Honour was referred in this respect reveals the complaint to be without solid foundation — where as senior counsel for the applicant acknowledged, there is, in his client’s case, a significant feature of aggravation in the form of his prior conviction in 2000 and sentence of imprisonment for trafficking in dangerous drugs — where the applicant afforded a moderate degree of cooperation with the police — where as a result of his arrest, he suffered physical and psychological injuries — where the applicant’s physical injuries were substantial but neither life threatening nor productive of significant long term physical disability — where the learned sentencing judge found that the circumstances of the arrest have contributed to an enduring psychiatric disorder which requires medication — where is likely to make his time in prison more difficult than for an offender without these health problems — where due allowance needs to be made to reflect these as mitigating circumstances. Application granted. Appeal allowed. Substitute a sentence of nine years imprisonment for the term imposed at sentence with parole eligibility date at 11 May 2016.

R v Rogers [2013] QCA 052 Margaret McMurdo P and Atkinson and Henry JJ 22/03/2013

Appeal against Conviction — where the appellant was charged with attempted murder of her partner (count 1), was alternatively charged with doing him grievous bodily harm with intent (count 2) and was also charged with going armed so as to cause fear (count 3) — where the appellant pleaded not guilty to count 1 and guilty to counts 2 and 3 in the presence of the jury — where the prosecutor did not accept the guilty plea on count 2 — where only count 1 was left for the jury’s consideration — where the trial judge did not direct the jury as to the use it could make of the appellant’s guilty plea on count 2 — where the trial judge did not direct the jury as to the meaning of “grievous bodily harm” — where the jury convicted on count 1 — whether the trial judge erred in only leaving count 1 for the jury’s consideration — whether the trial judge erred in omitting to direct the jury as to meaning of “grievous bodily harm” — whether miscarriage of justice occurred — where the central question in this appeal is whether a miscarriage of justice under s 668E(1) Criminal Code has occurred because the judge omitted to explain to the jury the meaning of grievous bodily harm so that they fully understood the distinction between an intention to do grievous bodily harm and an intention to kill — where it is difficult to apprehend how the jury could genuinely determine this issue without knowing exactly what “grievous bodily harm” means — where in the absence of a direction with the authority of the judge as to its full meaning, the jury may have thought, as indeed defence counsel suggested in his closing address, that the difference between the relevant intentions was “between wanting to hurt somebody and wanting to kill them” — where an intention to do grievous bodily harm is much more than wanting to hurt somebody and is more complex than intentionally doing somebody serious bodily harm, the phrase used by the judge in his jury directions — where the effect of this omission, which was of course, unforeseen by trial counsel and the judge, amounts to a miscarriage of justice. Appeal allowed. Conviction set aside. Retrial ordered.

R v Henderson; Ex parte Attorney-General (Qld) [2013] QCA 063 Muir JA, Margaret Wilson and Douglas JJ 28/03/2013

Sentence Appeal by Attorney-General (Qld) — where the respondent pleaded guilty to dangerous operation of a motor vehicle causing the death of three people and grievous bodily harm to one person, and leaving the scene in circumstances where he ought reasonably to have known that persons were injured — where the respondent was on bail for assault occasioning bodily harm at the time of the dangerous driving offence — where the respondent was sentenced to seven and a half years imprisonment for the dangerous driving offence, and six months for the assault, to be served concurrently, with parole eligibility set at 30 months — where the appellant sought a longer sentence than that sought by the prosecutor at first instance — where offence was an extremely serious case of dangerous driving — whether the sentencing judge appreciated the seriousness of the offending — whether the sentence reflected the overall criminality of the respondent’s conduct — where is only in an exceptional case that this Court will intervene to increase a sentence to a level higher than that sought by the prosecutor at first instance — where the ultimate responsibility for the imposition of an appropriate sentence rests with the sentencing judge rather than the prosecutor, and this Court will intervene where the sentencing judge failed to appreciate the seriousness of the offending or it is necessary to maintain public confidence in the administration of justice — where the respondent’s initial use of his vehicle as a weapon was part of the whole incident rather than something antecedent to it — where the sentencing judge rightly treated the use of the vehicle as a weapon as going to the seriousness of the offending, but did not also address the importance of deterrence in this context — where the respondent had threatened to use a vehicle as a weapon before (albeit 12 months previously and without carrying out the threat) and that he was continuing to use his Toyota aggressively when the collision occurred were further warrant for emphasising the importance of personal as well as general deterrence in this case — where sentencing judge described the respondent’s traffic history as very significant — where it was appalling — where his traffic history, together with his criminal history and his having committed the dangerous driving offence while on bail, were indicative of lack of respect for the law — where these matters elevated the level of criminality in the offending — where they also demonstrated a need to protect the community, which was not directly addressed by the sentencing judge — where none of the cases to which counsel referred involved the aggravating feature in this case — namely, the offender’s leaving the scene before police arrived when he ought reasonably to have known that four persons had been injured. Appeal allowed. Sentence increased to 10 years imprisonment with a serious violent offence declaration.