Court of Appeal Judgment Summary Notes

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CIVIL APPEALS

The Queen v Brown [2013] QCA 337 Margaret McMurdo P and Holmes and Muir JJA 8/11/2013

General Civil Appeal — Bail — where the respondent was granted bail on his own undertaking on a charge of riot — where the Director of Public Prosecutions filed an application in the Supreme Court for review of the magistrate’s decision under s 19B of the Bail Act — where the primary judge raised concerns over remarks attributed to the Premier in media reports to the effect that the court should follow community wishes in deciding the matter — where the primary judge, in adjourning the matter, requested senior counsel for the appellant to ascertain whether the reports were substantively accurate; whether the Premier had withdrawn what was said in terms of the outcome of the case; and if he had not, whether the court ought to proceed to hear the matter — where on resumption of the hearing counsel for the appellant made no comment with respect to those enquiries but submitted that the comments were irrelevant and that his Honour should proceed to hear the application — where the primary judge found that there was a risk that members of the public would perceive a result in the Crown’s favour as having been influenced by the Premier’s statements, damaging the independence and the integrity of the Court — where the primary judge concluded that, exercising the court’s inherent jurisdiction, he should order a temporary stay — where the Crown appealed the stay — whether the Court’s inherent power to stay proceedings extended to the circumstances — whether the premises on which the primary judge’s determination was based, as to the risk of public perception and damage to the independence and integrity of the Court, were sound — where the real issue in the present case is as to the soundness of the premises on which the primary judge’s determination was based, namely that there was “a very real risk that members of the public would perceive a result in favour of the Crown as having been influenced by the Premier’s statements” and that, in consequence, the “independence of the judicial arm [would be] damaged” thereby affecting “the institutional integrity of [the] Court” — where members of the public to whom regard should be had for present purposes are persons who are reasonable and fair-minded and who are “neither complacent nor unduly sensitive or suspicious” — where such persons would apprehend that Queensland judicial officers would dispose of their busy workloads in accordance with their oaths or affirmations of office: to do equal justice to all persons and discharge the duties and responsibilities of the office according to law to the best of their knowledge and ability without fear, favour or affection — where it is improbable that members of the public would perceive the Supreme Court to have the institutional fragility implicit in the primary judge’s findings or that judges of that Court would be pressured or influenced in their decision-making processes by statements of the nature of those under consideration — where we are confident that judges and magistrates would continue to make independent decisions in the face of sustained criticism, we are not so sanguine that consistent disparagement cannot have any tendency to weaken public confidence in the courts — where recognising such considerations, members of the executive and other members of Parliament generally, and observing a convention in that regard, exercise restraint in voicing such criticisms — where the reputation of an institution gained by the conduct of its officers over decades is most unlikely to be affected adversely by occasional criticisms — where assuming that the Premier’s remarks were made as reported, they were not such as would lead a reasonable member of the Queensland public to think that any Queensland judicial officer would fail to be true to his or her oath or affirmation of office in consequence of them — where for that reason the contention that it was appropriate to stay the proceeding until the appellant met the primary judge’s demands in relation to the subject statements should be rejected. Appeal allowed and the order of the primary judge of 31 October 2013 is set aside.

Bunnings Group Ltd v Asden Developments Pty Ltd & Ors [2013] QCA 347 Muir and Gotterson JJA and Margaret Wilson J 22/11/2013

General Civil Appeal — Real Property — effect on rights of co-owners — effect on rights of encumbrancee of the share of a tenant in common — where the second respondent was the registered owner of a one-third share as tenant in common in five lots of land — where the first respondent entered into a credit agreement with the appellant — where the second respondent guaranteed the performance of the first respondent’s obligations under the credit agreement — where the second respondent granted the appellant an equitable charge over “all the guarantor’s land” — where the first respondent failed to pay the appellant moneys owing pursuant to the credit agreement — where the second and third respondents, in separate proceedings and without the knowledge of the appellant, obtained an order appointing a statutory trustee for sale of the five lots — where the order vested the land in the statutory trustee subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, and provided for the distribution of the proceeds of sale to the co owners excluding the second respondent — where the appellant claimed the money owing plus interest, and sought declaratory relief in relation to the charge — where the primary judge determined that the order appointing the statutory trustee had put paid to any interest the appellant could have claimed in any of the five lots or in turn in the proceeds of sale of any of those lots — whether the primary judge erred in so finding — whether the appellants had an equitable interest prior to the appointment of the statutory trustee for sale — where the third respondents alleged that the land in which the second respondent held a one-third share was partnership property, and could not be subject to the appellant’s equitable charge — whether primary judge unable to resolve whether the land was partnership property — where upon the appointment of statutory trustees for sale of land held in co-ownership, the legal and beneficial ownership of the land is vested in the statutory trustees, and the co-owners’ interests in the land are converted into interests in the proceeds of its sale — where by s 38 Property Law Act 1974 (Qld) the land vests in the statutory trustees “subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares” — where there is nothing to suggest that the Legislature intended that the interests of an encumbrancee of an undivided share should be defeated by the appointment of statutory trustees for sale — where such an encumbrancee’s position is expressly protected by the definition of “co-owner” in s 37: a co-owner includes an encumbrancee of the interest of a tenant in common — where the statutory trustees are to hold the net proceeds of sale not only to give effect to the rights of a former tenant-in-common, but also to give effect to the rights of an encumbrancee of that tenant-in-common’s undivided share in the land — where the second respondent charged “as beneficial owner and as trustee of every trust all [her] land (including land acquired in the future)” — where the charge was a fixed charge over land the second respondent then held, and it attached to any land she subsequently acquired as soon as she acquired it — where the charge extended to a proportionate share in the proceeds of its sale — where if second respondent held a beneficial interest in the land before the appointment of a statutory trustee for sale, that interest was charged in favour of the appellant — where upon the appointment of the statutory trustee, the second respondent’s interest in the land was converted to an interest in the proceeds of its sale, and the appellant’s charge attached to the second respondent’s interest in those proceeds of sale — where the appellant’s charge was not defeated by the order of the deputy registrar as to the disposition of the sale proceeds. Appeal allowed. Orders 2, 5 and 6 made on 9 April 2013 set aside with leave to make written submissions on costs.

Famestock Pty Ltd v The Body Corporate for No 9 Port Douglas Road [2013] QCA 354 Chief Justice and Fraser JA and Douglas J 29/11/2013

General Civil Appeal — Contracts — where appellant held a restricted real estate licence as letting agent for the respondent — where that licence lapsed as a result of the appellant not renewing it — where appellant also breached agreements requiring it to hold such a licence — whether the implied duty to cooperate compelled the respondent to assist the appellant in seeking a new license — whether the implied duty to cooperate compelled the respondent to assist the appellant in seeking a new licence regardless of the appellant’s breaches — where the appellant continued to act as letting agent for the respondent — where the appellant applied to the Office of Fair Trading to renew the restricted real estate licence so as to continue as letting agent — where the appellant sought assistance from the respondent in renewing the licence in the form of a letter to the Office of Fair Trading that asserted the agreement remained on foot — where the respondent did not assist in the terms requested by the appellant — whether the duty to cooperate was a continuing obligation — wether the respondent breached the implied duty to cooperate in not assisting the appellant to renew the licence — the body corporate’s attitude to the breaches by the appellant such an approval was not forthcoming nor should it have been required to provide it — where therefore his Honour’s conclusion that it was unsurprising that the respondent did not provide a letter, whether requested to or not, saying the agreement was still in existence, in the circumstances where the appellant was in breach of the agreement, is clearly correct — where his Honour did not decide that the duty to cooperate was not a continuing obligation but said that it did not apply here where the appellant was itself in breach of the agreement — where a committee of the respondent body corporate purported to resolve to terminate a management agreement — where the committee was not authorised to make such a resolution — whether the action resolving to terminate the agreement was ultra vires — whether such unauthorised action of a committee could be attributed to a body corporate — whether such action could amount to a repudiation of a contract by a body corporate — where the normal rule is that a disclosed principal is not bound by its agent’s act which is outside the scope of the agent’s actual, implied or apparent authority unless the principal in fact authorised the agent to do the particular act or ratified it — where here the purported termination notices were issued by the committee rather than by the body corporate which alone had the power to do that — where there had been no attempt at delegation by the body corporate — where it is difficult to see why the consequences of the committee’s independent, unauthorised behaviour should be sheeted home to the body corporate so as to make it liable in damages — whether it was incorrect to attribute the behaviour of the committee in issuing unauthorised termination notices to the respondent body corporate. Appeal dismissed. Cross-appeal allowed with costs. Set aside the orders made on 26 October 2012, in lieu, order that judgment be entered for the defendant with costs.

Australian Retirement Homes Ltd v Ash [2013] QCA 355 Gotterson and Morrison JJA and North J 29/11/2013

Application for Leave Queensland Civil and Administrative Tribunal Act — where the applicant is a retirement village — where the respondent is a former resident in the retirement village — where the respondent filed an application in QCAT putting into question the validity of charges for general services by the applicant — where the application was dismissed at first instance and the respondent appealed to the Appeal Tribunal on a question of statutory construction — where that appeal was allowed and the member’s decision was set aside — where the applicant appeals against that decision on a question of statutory construction — whether leave should be granted — where s 106(1) Retirement Villages Act 1999 (Qld) operates to place a cap on the total of general services charges — where it does so by providing that the scheme operator must not increase the total of general services charges for a retirement village for a financial year by more than the CPI percentage increase for the financial year — where the issue between the parties for this application for leave to appeal concerns the precise meaning that the term “total of general services charges” has — where there are definitions of “services charge” and “general services” in the Dictionary Schedule, there are no definitions for that expression, or the variant form “general services charge” in the R V Act, nor for the word “charge” — where there are several features of this legislation which suggest with some force that in the composite term the expression “general services charges” is intended to have the meaning of amounts demanded by a scheme operator for the provision of general services — where the definition of “services charge” in the Dictionary Schedule means a charge payable by a resident for a general or personal service under a residence contract — where it precludes any meaning referable to expenditure incurred by the scheme operator — where s 106(1) is concerned with a category of charges which lie within the power of the scheme operator to increase — where clearly the amount that it demands be paid to it for the provision of a general service is within that category — where the operation of s 106 requires that the charge levied on residents individually for each general service be specifically identified — whether the applicant has demonstrated a persuasive case of error on the part of the Judicial Member. Leave granted. Appeal allowed. Set aside the decision of the Appeal Tribunal. Affirm the decision of the Tribunal. Specific cost orders.

CRIMINAL APPEALS

R v O’Carrigan [2013] QCA 327 Margaret McMurdo P, Mullins and Henry JJ 1/11/2013

Sentence Application — where the applicant pleaded guilty to fraudulently falsifying a record (count 1) and two counts of fraud as an employee to the value of $30,000 or more (counts 2 and 3) — where the conduct was constituted by defrauding his employer, Leighton Contractors Pty Ltd, of more than $20.7 million over 12 years — where the applicant was sentenced to 12 years imprisonment on count 3, 10 years concurrent imprisonment on count 2 and three years imprisonment on count 1, cumulative on count 3, with parole eligibility set at 17 November 2018, six years from sentence — where the applicant contends that the sentence was manifestly excessive — whether sentencing judge erred — where over 12 years between 1999 and 2012, he defrauded Leightons of more than $20.7 million, most of which has not been recovered — where the applicant’s offending was unquestionably one of the largest and most serious examples of fraud to come before Queensland courts — where applicant’s sole mitigating feature was his extraordinary cooperation with the administration of justice — where once confronted, he made immediate admissions — where he assisted Leightons to recover its funds, albeit ultimately with limited success — where communicated his intention to plead guilty within days of being charged and did so to an ex officio indictment — where had this case proceeded to trial, it is likely that it would have taken several weeks of court time and caused inconvenience and financial loss to many prosecution witnesses — where the otherwise much more costly investigation, both by the police and Leightons, and the court process was commendably and extensively reduced through this cooperation — where had he proceeded to trial, he would have been sentenced to an effective global term of imprisonment in the range of 15 to 16 years with parole eligibility at the half way point — where it follows that the sentencing judge, in setting an effective global head sentence of 15 years, did not significantly discount the head sentence to recognise these critical mitigating factors — where unless sentencing judges give proper weight to such cooperation, offenders will have no incentive to do so and the criminal justice system will require additional and expensive resources to remain efficient. Application granted. Appeal allowed. Parole eligibility date fixed at 7 November 2018 set aside, and instead fix the parole eligibility date at 7 November 2017.

R v BCO [2013] QCA 328 Margaret McMurdo P, Morrison JA and Mullins J 1/11/2013

Sentence Application — where applicant pleaded guilty to one count of rape and one count of indecent treatment of a child under 16 with a circumstance of aggravation — where the applicant was 15 years 11 months’ old at the time of offending — where the applicant was sentenced to two years’ probation pursuant to s 176(1) of the Youth Justice Act 1992 (Qld) — where a conviction was recorded for the count of rape, but not the other count — where the sentencing judge assumed the recording of the conviction would not adversely impact the applicant or his employment prospects — whether the sentencing judge erred in acting on that assumption — where discretion to record or not record a conviction to be exercised afresh — whether the balance of the factors favours recording a conviction — where s 184(1) of the Act mandates that in considering whether or not to record a conviction the court must have regard to all the circumstances of the case and one of the specific circumstances is the impact the recording of a conviction will have on the child’s chances of rehabilitation generally or finding or retaining employment — where the authorities strongly support as the starting point for a youth of the applicant’s age being sentenced under the Act the inference that the recording of a conviction would have an adverse impact on the youth in respect of prospects for rehabilitation and employment — where there was nothing in the circumstances applying to the applicant that justified the assumption that was made by the sentencing judge that the applicant would not be so affected by the recording of a conviction — where there has been error made with the discretion to be exercised afresh by this Court — where factors in favour of the recording of the conviction include the age of the complainant, the nature of the offence (though not penile/vaginal rape) and that the applicant had committed property offences prior to the subject offences and committed further property offences whilst on bail for the subject offences — where it counts against recording a conviction that it would make the applicant a reportable offender under the Child Protection (Offender Reporting) Act 2004 for seven and one-half years which is at odds with the applicant’s risk assessment as a low to moderate risk of sexual recidivism — where other factors against the recording of the conviction also include the age of the applicant, that the offending was opportunistic rather than a manifestation of sexual deviance and that the applicant was suitable for offence-specific treatment — where it is also relevant that no convictions were recorded for the property offences for which the applicant was sentenced in March 2013. Application for leave granted. Appeal allowed. Sentence varied to the extent only of setting aside the order recording a conviction and substituting the order that no conviction is recorded.

R v Reynolds [2013] QCA 338 Holmes and Morrison JJA and North J 12/11/2013

Appeal against Conviction — where the appellant was convicted of entering a dwelling with intent to commit an indictable offence, where the entry was by means of break, the offence was committed at night, actual violence was threatened, and the appellant was armed with an offensive weapon — where the appellant was convicted on the basis of s 7 of the Criminal Code (Qld), in that he went by car to the complainant’s house with the person who actually committed the offence — where the appellant appeals against his conviction — where the appellant contends a miscarriage of justice resulted from admission of inadmissible evidence — where the appellant submits a miscarriage of justice resulted from the failure of the learned primary judge to give proper directions to the jury in relation to the use they may make of particular evidence — where the appellant contends the learned primary judge failed to give proper direction to the jury as to drawing of inferences — whether the appeal should be allowed — whether, if the appeal is allowed, a retrial should be ordered or a verdict of acquittal entered — where the Crown case was put squarely and solely on the basis that the appellant was culpable as an aider under s 7(b) of the Criminal Code — where it was essential that the prosecution prove beyond reasonable doubt that the appellant knew that Hansen meant to burgle a dwelling and aided him in doing so — where although the jury might not, as a general proposition, regard the appellant as a witness of credit, they had still to consider whether the Crown had excluded all reasonable hypotheses consistent with innocence — where it is entirely possible, perhaps probable, that the appellant was sitting in the driver’s seat of the car waiting to drive the primary offender (Hansen) away at speed because he knew that Hansen had walked away with the intent of committing burglary — where nothing makes that inference inevitable — where it is also rationally possible that he was in that position under the impression that Hansen had gone to buy drugs or, alternatively, that he was simply not sufficiently alert to consider the matter — where the Crown could not, on the limited evidence it had, exclude hypotheses in which the appellant would be innocent; or, at any rate, innocent of aiding a burglary. Appeal allowed. Conviction quashed. Enter a verdict of acquittal.

R v Cormack [2013] QCA 342 Margaret McMurdo P, Gotterson JA and McMeekin J 15/11/2013

Appeal against Conviction — where the appellant was convicted of arson of a St Vincent de Paul Society store — where the appellant had been working as a volunteer at the store during the day — where the appellant left at approximately 4.30 pm and came back at around 11.00 pm, purportedly to collect some electrical goods he had left at the store — where the appellant called 000 to report a fire in the store — where fire fighters arrived to find the shop engulfed in smoke and the right hand side front door of the store broken — where the appellant identified himself, spoke to police and provided a key to the store — where police seized a metal bar from the appellant’s car and the appellant’s clothes — where the appellant told police that the metal bar had been used for, inter alia, carrying bulk bags used to transport recyclable material including glass — where the appellant’s trial counsel did not make admissions under s 644 Criminal Code 1899 (Qld) in respect of the continuity of the handling of the metal bar and the appellant’s clothing — where glass fragments with the same refractive index as the broken front door of the store were found on the appellant’s metal bar and the appellant’s clothing — where no evidence was led as to the incidence of the type of glass used in the front door of the store — where the police did not investigate the appellant’s claim to have used the metal bar in handling bulk bags which may have contained broken glass — where nearby CCTV footage showed an unidentified male who was not the appellant in the vicinity of the store about 50 minutes prior to the store’s alarm activating — where the appellant contends that the verdict was unsafe and unsatisfactory in that it was not reasonably open on the evidence — whether verdict unreasonable or cannot be supported having regard to the evidence in terms of s 668E(1) Criminal Code 1899 (Qld) — where a forensic scientist from the Queensland Police Fire and Explosion Unit gave evidence that the fire was the result of human involvement, either accidental or deliberate — where the appellant contends that this raised the issue of the fire being caused unintentionally — where the appellant contends that the trial judge erred in failing to direct the jury as to s 23 Criminal Code or at least, when directing the jury as to the elements of arson, in failing to convey that a critical issue was whether the appellant deliberately set fire to the premises — whether trial judge erred — where the directions sufficiently highlighted for the jury the real issues in the case, namely, that they had to be satisfied not only that the appellant lit the fire but also that he did so wilfully, that is, deliberately — where there was no doubt that the evidence against the appellant made him a prime suspect — where Ms Megan Richards, a forensic scientist with the Queensland Police Service, gave evidence of her experience in glass analysis — where she did not examine and had never seen the metal bar, the control samples of glass fragments from the broken door panel or the appellant’s t-shirt, denim shorts and fabric belt — where Celeste Huraki, another forensic scientist, conducted those examinations — where she gave evidence from another forensic scientist’s (Ms Huraki) notes and statement — where it is common ground that defence counsel agreed to this course as Ms Huraki was unavailable at trial — where with hindsight, this seems to have been an unsatisfactory course — where not only did Ms Richards give hearsay evidence from Ms Huraki’s notes and statement, but, as members of this Court noted at the hearing, she added some surprising and highly prejudicial details about an unnamed study comparing glass fragments found on clothing of members of the general public and on those charged with criminal offences involving the breaking of glass — where after review of the evidence at trial, the Court is not persuaded that the prosecution evidence established, to the criminal standard of proof, that the glass fragments in his clothing and on his metal bar were from the glass in the store front door — where it follows, consistent with the respondent’s concession, that it was not open to the jury to be satisfied beyond reasonable doubt that the glass came to be on the appellant’s clothing and metal bar by smashing the glass front door of the store rather than in some innocent way. Appeal allowed. Guilty verdict set aside. Verdict of acquittal is entered.

R v Barron [2013] QCA 349 Margaret McMurdo P, Ann Lyons J Daubney J 27/11/2013 (delivered ex tempore)

Sentence Application — where the applicant, Allan Raymond Barron, pleaded guilty to burglary and stealing (count 1) and assault occasioning bodily harm whilst armed (count 2) — where the judge sentenced him to 18 months imprisonment on count 1 and to two years imprisonment on count 2, both sentences to be served concurrently with each other but cumulatively on a sentence of three years imprisonment with a parole release date set on 19 April 2013 imposed by a different District Court judge on 19 October 2012 for the offence of unlawful wounding — where parole eligibility was fixed at 18 June 2014 — where with the concurrence of the respondent, the applicant was granted leave to adduce evidence from his lawyer that the applicant had been diagnosed since his sentence of terminal throat cancer — where counsel do not know why the applicant, upon learning of his terminal condition, did not immediately apply for special circumstances parole rather than making this application — where it can be expected that this ordinarily would be the avenue to be adopted in a case of this kind — where time is of the essence for the unfortunate applicant and the interests of justice require this Court to now deal with his application — where the respondent fairly, compassionately and appropriately concedes that, in light of Dr Jones’s opinion, the application for leave to appeal should be granted, the appeal allowed and the applicant re-sentenced to enable him to be released into the community forthwith — where it is important to note that this must not be viewed as a comparable sentence for the offences of burglary and stealing and assault occasioning bodily harm whilst armed for which the District Court judge sentenced the applicant — where it is emphasised that the applicant has not established that those sentences were manifestly excessive on the basis of the information then before the court. Application granted. Appeal allowed. Orders below partly set aside with the applicant ordered to be released on parole today with the orders otherwise confirmed.