CRIMINAL APPEALS
R v Goodall [2013] QCA 072 Holmes and Gotterson JJA and Douglas J 5/04/2013
Sentence Application — where the applicant pleaded guilty to three counts of using electronic communications to expose a child under 16 to indecent matter — where the child was a real child — where the child initially made contact — where the 12 year old boy complainant used an adult dating website to contact the applicant who was a man of 46 and 47 years of age during the period of about three months when the offences occurred — where the complainant’s profile on the website indicated falsely that he was then 18 years old — where the applicant was sentenced to two years imprisonment — where the parole eligibility date was set at one-third of the head sentence — whether the sentence imposed was proportional — whether the parole eligibility date ought to have been one-sixth of the head sentence — where the fact that the complainant was a 12 year old who suffered from his exposure to the applicant’s behaviour takes this case outside the other decisions to which the Court was referred and justifies the two year sentence imposed by the learned sentencing judge — where the fixing of a parole eligibility date at the one-third point, however, lacked proportionality with the tendency apparent in the other cases to which have been referred where the sentences were suspended at an earlier stage than might normally be the case on a plea of guilty — where the greater seriousness of the offending evident in the fact that a real child was involved may justify that approach to some extent, as may the applicant’s greater age than most of the offenders in the comparable decisions, but the absence of any significant evidence that the applicant procured the complainant to behave as he did or acted in a predatory fashion are countervailing considerations — where the failure to set an earlier parole eligibility date does lack a degree of proportionality with the comparable sentences with the result that, in my view, the sentence is manifestly excessive in that respect — where it was significant that the Court was not able to be assured on the hearing of the application that the applicant would be in a position to receive any psychological or psychiatric treatment while in prison during the balance of his term in actual custody — where one way to be surer that he will receive such assistance is to alter the sentences to suspend them after six months for an operational period of three years in respect of counts 1 and 2 and, in respect of count 3, to impose a sentence of six months imprisonment coupled with one year of probation as is permitted by s 92(1)(b) of the Penalties and Sentences Act. Application granted. Appeal allowed. Orders of the sentencing judge set aside. For counts 1 and 2, sentenced to two years imprisonment, suspended after serving six months for an operational period of three years. For count 3 sentenced to six months imprisonment to be released under supervision of a corrective services officer for one year. (brief)
Commissioner of Police v Stehbens [2013] QCA 081 Gotterson JA, Margaret Wilson and Douglas JJ 16/04/2013
Application for Leave s 118 DCA (Criminal) — where the respondent was charged with assaulting a police officer acting in the execution of his duty — where the respondent raised honest and reasonable mistake of fact — where the applicant alleged that he identified himself as a police officer verbally and by producing his police badge — where the Acting Magistrate dismissed the defence of honest and reasonable mistake — where the decision was overturned on appeal by a District Court Judge — where the District Court Judge held that the Acting Magistrate could not have been satisfied that mistake of fact had been excluded beyond reasonable doubt — whether the defence of honest and reasonable mistake had been excluded beyond reasonable doubt — where in paragraph [23] of his reasons the Judge found that the Acting Magistrate had failed to identify the relevant issue in relation to s 24 of the Criminal Code 1899 (Qld) — where, however, the Judge did not explain why the Acting Magistrate could not have been persuaded beyond reasonable doubt that the applicant did not have an honest and reasonable belief that the complainant was not a police officer — where merely referring to “the state of the evidence” before the Acting Magistrate, without any analysis of that evidence, did not satisfy his Honour’s obligation to give reasons for allowing the appeal, quashing the conviction and entering a verdict of acquittal — where this Court is as well placed to decide the matter as the District Court — where despite his somewhat muddled reasons the Acting Magistrate always appreciated that the mistake of fact the respondent relied on was that the complainant was not a police officer — where his Honour appreciated that the prosecution bore the onus of excluding beyond reasonable doubt the possibility that the respondent held an honest and reasonable belief that he was not a police officer — where there was no reason for the Acting Magistrate not to find that the complainant produced his badge in response to the respondent’s demand that he do so — where each witness experienced some difficulty in identifying the exact point in the CCTV footage that the badge was produced, a task that was significantly hampered by the low quality of the footage, all four witnesses gave consistent accounts of the police officer retrieving the badge from his back pocket and showing it in the direction of the respondent — where even given the respondent’s intoxication and highly charged emotional state, it was open to the Acting Magistrate to reject the respondent’s evidence that she did not see the badge. Application for leave to appeal granted. Appeal allowed. Set aside the orders of the District Court. Substitute order that the appeal to the District Court is dismissed.
R v Johnson & Honeysett [2013] QCA 091 Holmes and Fraser JJA and Daubney J 23/04/2013
Appeals against Conviction — where the appellants were both convicted of one count of assault occasioning bodily harm in company, and where the appellant, Honeysett, was convicted of a further count of assault occasioning bodily harm of Mr Vlaisan (the complainant) — where at trial, evidence given by the complainant was inconsistent with that of a second Crown witness, which was favourable to the appellants — where on appeal, the appellants contended that the trial judge misstated the test to be applied by the jury when comparing inconsistent evidence of witnesses — where the trial judge, in summing-up, suggested to the jury that it was possible that they might not accept either witness’ account, but went on to suggest that a finding that the second witness was not as reliable would dispose them to accepting the evidence of the complainant — whether the jury should have been directed that if they were left in doubt as to which version of the evidence was correct, they should acquit the appellants — whether the jury should have been directed that if the evidence of the second witness left them with a reasonable doubt they should acquit — whether a miscarriage of justice occurred — where the trial judge in the present case had made it clear to the jury that he was delivering the summing-up in separate parts, in the first of which he had given “clear and unequivocal directions about the criminal onus and standard of proof” and had also emphasised that the jury’s own view of the facts was paramount — where the later passages, in which the trial judge had explained that an acceptance of Mr Vlaisan’s reliability was fundamental to a decision to convict, were sufficient to make it clear that it was not simply a matter of choice between his evidence and that of Ms Popescu (the daughter and sister of the appellants respectively, the former de facto wife of the complainant), and to accommodate the possibility that the jury did not accept the evidence of either — where there was nothing untoward in the trial judge’s telling the jury that it was necessary for them to consider which of the two major Crown witnesses they could accept as reliable — where the problem was that the directions tended to cast the jury’s task as determining whether they would accept the evidence of Mr Vlaisan or that of Ms Popescu; and suggested that a finding that Ms Popescu’s evidence was not as reliable would dispose them to accepting Mr Vlaisan’s evidence — where the trial judge did allude to the possibility of the jury’s being unable to decide whether to accept the account of Mr Vlaisan or that of Ms Popescu – “whether you are prepared to believe one over the other, or whether you are not prepared to believe either”- but he did not go on to say, in that context, that the latter outcome should produce an acquittal — where the jury should have been directed that if they were left in doubt as to which of the two versions was correct, they should acquit; and that, even if they did regard Ms Popescu’s evidence as less reliable than that of Mr Vlaisan, they should not convict if the former’s evidence left them with a reasonable doubt about the matters in issue: as to whether the Crown had excluded self-defence and provocation, in the case of Honeysett, and had proved Johnson’s involvement in the second assault. Appeals allowed. Convictions set aside. Retrial is ordered on both counts.
R v WAS [2013] QCA 093 Holmes and Gotterson JJA and Daubney J 26/04/2013
Text Sentence Application — where the applicant was convicted on his own plea of guilty of two counts of rape and one count of administering a stupefying drug with intent to cause a criminal offence — where the learned primary judge sentenced the applicant on each count to seven years imprisonment with a parole eligibility date fixed after serving two years and three months — where there was delay between the commission of the offences and the time of sentencing — whether the sentencing judge had applied the correct principles in sentencing the accused — whether the sentence was manifestly excessive — where the complainant was the applicant’s former wife — where the applicant was 32 years old at the time of the offending, and 38 years old when sentenced — where he was in stable employment as the store manager for a kitchen and bathroom company — where the applicant’s criminal conduct was, to adopt the word used by the learned sentencing judge, appalling — where the fact that the applicant used stupefying drugs in order to abuse his then wife sexually was a circumstance which not only spoke to his premeditation and pre-planning, but added to the seriousness of the rapes to which he subjected her — where it cannot be said that a head sentence of seven years imprisonment was out of the appropriate range as a starting point in the present case — where there was, however, a particular mitigating factor in the present case, namely the considerable period of time which had elapsed between the offending and the matter being reported by the complainant, with the applicant then being charged and ultimately pleading guilty — where some six years elapsed in the present case between the offending and the date of sentence — where during that time, the applicant and complainant were reconciled and lived together again for some 18 months — where their final separation, the applicant formed a new relationship, has married and has a new family — where, importantly, he voluntarily underwent extensive psychiatric treatment, which included medication, for the purposes of addressing his sexually excessive behaviour — where insufficient weight was accorded to them specifically in mitigation. Applicant have leave to appeal. Appeal allowed. Sentence set aside, and in lieu thereof, it is ordered that on each of the three counts the appellant is sentenced to six years imprisonment with parole eligibility fixed at 28 February 2014.
CIVIL APPEALS 
Application for Leave s 118 DCA (Civil) — where the applicant fell through a glass panel adjoining the entrance to an office building — where the respondent was a body corporate in control of the common areas of the building including the foyer entrance and building façade — where the applicant suffered severe lacerations to her face, neck, arms and torso — where the applicant had been drinking prior to the accident — where the applicant brought an action for damages in negligence against the respondent — where the glass of the glass panel complied with the relevant Australian Standards in place in 1971 at the time of the original construction of the building — where later Australian Standards required glass installed to be safety glass — where renovations were conducted between 2000 and 2001 to the foyer and the glass in the front doors, but not the glass panel through which the applicant fell — where the glass in the front doors was replaced with safety glass in accordance with Australian Standards — where the architect’s plans for the renovation didn’t alert the respondent to the relevant Australian Standards — where the respondent admitted a glass audit could have been conducted which would have revealed the current glass type and whether it complied with the relevant Australian Standards — where the applicant contended that s 30(1)(c) of the Workplace Health and Safety Act 1995 (Qld) (‘the Act’) placed a duty on the respondent to ensure that there was appropriate, safe access to and from the workspace through the common areas that the respondent controlled — where the applicant contended this included the glass panels — where the Workplace Health and Safety Risk Management Advisory Standard 2000 (‘the Advisory Standard’) set out ways to manage an alleged risk — where the applicant contended that s 26(3) of the Act and the Advisory Standard required the respondent to take active steps to manage risk — where the trial judge held that the respondent did not breach its statutory duty under s 30(1) — whether the respondent’s duties under the Act required it to have organised a suitable person to audit the glass — whether the applicant proved a breach of the statutory duty owed by the respondent — where the applicant contended that her blood alcohol concentration did not have a significant affect on her — where the trial judge reduced damages for contributory negligence by one third — whether the applicant bears any responsibility for her injuries — where the applicant contended that the trial judge’s assessment of damages for past and future economic loss was manifestly inadequate — where the applicant sought a global award of $10,000 for past economic loss — where the trial judge did not award damages for economic loss because the applicant had not adduced evidence of the “essential facts” of such a claim — where the trial judge awarded $15,000 for loss of future earning capacity — where the trial judge found that the applicant’s psychological complications arising from the accident affected her future earning capacity — whether the trial judge erred in the assessment of damages — where, in view of the extraordinarily large number of people who uneventfully entered and exited the building over 30 years, the absence of any evidence that the respondent knew or should have known that the glass in the side panels had a propensity to break into dangerous shards when sufficient force was applied to it, and the potentially enormous cost of investigating and removing equally unlikely risks associated with other glass or materials throughout the common areas of the building, the applicant did not prove that the respondent acted unreasonably by failing to organise an audit of the glass side panels by a person with appropriate expertise and thereafter replacing the existing glass with safety glass — where, in otherwise comprehensive reasons, the trial judge did not advert to s 26(3), the advisory standard, or the applicant’s pleadings and written arguments about those provisions — where it is appropriate to grant leave to appeal for the purpose of considering whether, taking into account the effect of s 26(3) and the advisory standard, the respondent breached its statutory duty under s 30(1)(c) and, if so, whether, taking the evidence of breach into account, the respondent was negligent — where ultimately, however, and notwithstanding the proactive duty imposed by the Act, it is persuasive that the respondent was not obliged to engage an expert to audit the glass — where on the evidence, the glass side panels could be regarded as “safe” if the respondent examined them without the assistance of a glass expert — where hindsight reasoning of that kind should not be used to find that the respondent breached a statutory duty — where failure to engage an expert, if required by the legislation, would amount only to some evidence of negligence, and proof of a causal link with the applicant’s injuries would require a further finding that the applicant was negligent in not taking the second step of replacing the side panels with safety glass panels at a time before the applicant was injured — where the applicant did not prove the breach of statutory duty which it alleged — where the applicant did not challenge the opinion expressed by Dr Purssey that, based on the applicant’s own statements: her blood alcohol concentration at 8.30 pm would have been .26 per cent — where the fact that the applicant’s fall against the glass was a result of her voluntary consumption of so much alcohol that she was unsteady on her feet suggests that she should bear some responsibility for her resulting injuries — where the applicant did not give evidence that she had in fact suffered any loss of wages before the trial or that she was otherwise out of pocket. Application granted. Appeal dismissed with costs.
currency was deposited into the Queensland Police Service Collections Account — where applications for restraining and forfeiture orders were amended because the $598,325 in Australian currency had not been retained in specie — whether amendments amounted to new applications — where the words are sufficient to describe Australian notes (and/or coins) having that total value, rather than the specific notes seized which, when their face value was added together, would amount to the sum described — where his Honour did not err in varying the original restraining order and the terms of the application for a forfeiture order — where the appellant failed to prove on the balance of probabilities that it was more probable than not that the property was not illegally acquired — where exclusion order refused — where forfeiture order granted — whether the standard of proof relating to exclusion orders, provided for in s 68(2), is lower than the standard of proof otherwise relating to the Act, provided for in s 8(3) — whether the primary judge erred in applying the wrong standard of proof — where expert for respondent gave opinion about age and origin of property from sketch of property — whether open to primary judge to be satisfied on the balance of probabilities that it is more probable than not that the property was not illegally acquired. Appeal dismissed with costs. 
contract and demanded payment of the balance deposit — where the appellants sought summary judgment in the applications jurisdiction on the deposit due and owing, including interest and costs on an indemnity basis — where there was no dispute of fact and the only issue was as to the construction of the contract — where the primary judge found that it was not an appropriate issue for determination in the applications jurisdiction — where the primary judge considered it possible that the respondents would prove to have a defence to the claim, and that because the matter was one which required detailed and considered submissions, it should proceed to trial — where on appeal, the respondents submitted that the appeal was one from the exercise of a discretion — where the primary judge did not purport to exercise any residual discretion, not being satisfied of either of the matters in r 292(2)(a) and (b) of the Uniform Civil Procedure Rules 1999 (Qld) — where the question of construction was relatively straightforward — whether the primary judge was correct in concluding that the statutory pre-conditions for the exercise of the discretion to give summary judgment had not been made out by the appellants — where the questions of construction raised were not particularly difficult, and the learned judge did not identify any respect in which he would have been assisted by further submissions — where the matter could readily and properly have been resolved on a summary basis, with judgment reserved, if necessary, to enable reflection on the points raised — where the learned judge erred in failing to find, first, that the respondents had no real prospect of successfully defending the appellants’ claim and, second, that there was no need for a trial of the claim — where the contract provided for the seller to have remedies in the event of termination for the buyer’s default including a right to resell the property and a right to recover damages of any unpaid part of the deposit as a liquidated debt — whether, on the proper construction of the contract, the appellants had the right to recover the unpaid deposit as a liquidated debt only if the contract were affirmed — whether, on the proper construction of the contract, the appellants were entitled to recover the deposit in addition to the rights provided in the event of termination for default. Set aside orders at first instance. Give judgment for the appellants in the amount of $235,335.78 plus costs.