Court of Appeal Judgment Summary Notes

 CIVIL CASE SUMMARIES

Chief Executive, Department of Transport and Main Roads v Cidneo Pty Ltd [2015] QCA 096; (2015)207 LGERA 448 (14/6645) Chief Justice and Fraser JA and Dalton J 05/06/2015

Appeal from the Land Appeal Court — Acquisition of Land — Compensation — where the application for leave to appeal from a decision of the Land Appeal Court concerns the amount of compensation payable by the applicant (“DTMR”) to the respondent (“Cidneo”) upon the resumption of part of Cidneo’s land — where the respondent’s land was resumed — where the Land Court assessed compensation using the ‘before and after’ method — where the assessment required consideration of the likely contribution for external roadworks — where, subsequent to the resumption, the contribution for external roadworks was agreed upon — where the Land Court, in assessing compensation, did not take into account post-resumption events — whether post-resumption events ought to have been taken into account when assessing compensation — where the language of s 20(1) of Acquisition of Land Act 1967 (Qld) makes it clear that injurious affection is a form of damage that adversely affects the retained land (the “other land” in the terms of s 20(1)) — where s 20 of the ALA requires that in assessing the compensation to be paid regard must be had to any severance damage or injurious affection damage — where the Land Court concluded that the transport infrastructure contribution was neither severance damage or injurious affection damage — whether the transport infrastructure contribution was severance damage or injurious affection damage — where the value of the retained land is not a head of compensation in s 20 and Cidneo’s claim for compensation did not include any contention that the contribution requirement affected the value of the resumed land, which is a head of compensation in that provision — where it is conventional for injurious affection and severance damage to be assessed with reference to events occurring after resumption. Application for leave to appeal granted only in relation to ground 1. Appeal allowed in relation to ground 1. Set aside the orders made in the Land Appeal Court dismissing the cross-appeal and order instead the cross-appeal be allowed in relation to ground 1 of the cross-appeal only and the matter be remitted to the Land Court for the determination of compensation in accordance with the reasons of this Court. Submissions invited on costs

Jones & Ors v Invion Ltd & Anor [2015] QCA 100 (14/6136) Margaret McMurdo P and Philippides JA and Peter Lyons J 12/06/2015

General Civil Appeal — Corporations — Duties and Liabilities of Officers of Corporation — where the first respondent (Invion Limited) successfully brought proceedings against its former directors, Mr Stephen Jones (the first appellant), Mr Jason Yeates (the second appellant) and Mr James Greig (the third appellant) for compensation under s 1317H of the Corporations Act 2001 (Cth) (the Act) for breach of statutory duties under s 180, s 181 and s 182 of the Act and equitable compensation for breach of fiduciary duties — where the appellants were directors of the first respondent — where the first appellant was executive Chairman, the second appellant Chief Executive Officer and the third appellant Chief Financial Officer — where the Board of the first respondent resolved to amend the contracts with the appellants to extend the termination notice period to be provided by the first respondent to the appellants to 12 months — where the appellants, among themselves, amended their contracts with the first respondent so as to provide that each appellant or the first respondent could terminate the respective contracts for any cause and each appellant could unilaterally elect to either be paid out 12 months’ salary/retainer or work 12 months — where the appellants did not request approval from the Board or notify the Board of the amendments they had made to the contracts — whether the trial judge erred in finding that the appellants acted dishonestly in dereliction of their duties as directors in varying their contracts and not notifying the Board — whether, if there was no error as to the dishonesty finding, the trial judge erred in failing to find that the appellants’ conduct was not causative of the respondent’s loss — whether the trial judge erred in failing to conclude that the Board did not believe that the company was bound to make payments to the appellants, but acquiesced to making them in any event – whether the trial judge erred in finding that s 1317S and s 1318 of the Act were not available to the appellants and failing to find there was an honest explanation for the appellants’ breaches of duties and that the appellants ought fairly to be excused from liability — while the appellants urged an approach which disregarded their evidence, it cannot be overlooked that each sought in his evidence to justify his actions on the basis that he acted with authority and none gave evidence of being mistaken as to his authority — where in those circumstances and, given the rejection of the evidence of each appellant, considered against a detailed analysis of the documentary evidence and the credibility findings his Honour made, there was no room for an inferential finding that any appellant acted mistakenly as to his authority — where the prospect that the first respondent made the payments not believing that it was bound to do so, but acquiescing in the payments, was not realistically open in the light of the findings at trial — where sections 1317S and 1318 each require satisfaction of two limbs: that the contravenor acted honestly and that having regard to all the circumstances the contravenor ought fairly to be excused from liability — where given his Honour’s findings as to dishonesty (for which there can be no basis for complaint as explained above), a finding of honesty was simply not available — where that is sufficient to dispose of this ground — where the appellants’ failure to disclose occurred in circumstances where disclosure was deliberately withheld or not made when, on any objective measure, a director ought to have known that disclosure was required — where the Board was not “fully informed and to the contrary, they were incorrectly informed as to the contractual position. Appeal dismissed. Costs.

King v Allianz Australia Insurance Limited [2015] QCA 101 (14/9666) Philippides JA, Mullins and Burns JJ 12/06/2015

General Civil Appeal — Costs — where the appellant was injured in a motor vehicle accident — where the personal injuries proceeding was settled and the insurer agreed to pay the appellant’s costs and outlays to be assessed on the District Court scale — where the appellant had engaged a clinical anatomist to provide a medico-legal report for the trial — where the insurer objected to the costs of the report on the basis that it was not necessary or proper and overlapped with the reports obtained from the other medical specialists — where the costs assessor allowed the costs for the report — where the insurer applied for a review of the costs assessor’s decision — where the primary judge found no error in the costs assessor’s exercise of discretion, but held the report was inadmissible and the appellant was not entitled to the costs of report — whether the review of the costs assessor’s decision should have succeeded — where the principles that apply to the review by the court of a costs assessment are well settled: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 — where generally, the discretion of the costs assessor will not be interfered with by a judge on review, unless the costs assessor has erred on a question of principle — where the question on the review is the quantum allowed for the item, the court is generally unwilling to interfere with the judgment of the costs assessor whose expertise is to make judgments on the quantum of the costs and disbursements — where the primary judge recognised, it was a classic exercise of the costs assessor’s discretion to determine whether or not the costs associated with obtaining the report from Dr Giles were necessary or proper pursuant to r 702 and there was no error in the exercise of the discretion — where the primary judge’s recognition that there was no error in the costs assessor’s exercise of discretion, and the relatively modest amount of costs associated with the Giles’ objection, leave for reviewing this aspect of the costs assessor’s decision was not warranted — where the appellant’s solicitors claimed care and consideration at 30 per cent — where the insurer objected to the claim on the basis of heavy reliance on counsel and asserted care and consideration should be allowed at 25 per cent — where the costs assessor allowed 30 per cent for care and consideration — where the insurer applied for a review of the costs assessor’s decision — where the primary judge considered the costs assessor’s reasons were inadequate and reduced the amount of care and consideration to 25 per cent on the basis that 30 per cent was excessive — whether the primary judge should have interfered with the exercise of discretion of the costs assessor — where although the costs assessor did not address these matters individually in his reasons, the costs assessor’s reasons show that he did assess the care and consideration, taking into account all aspects of the matter which is the overarching consideration — where there was no specific ground before the primary judge that the costs assessor’s reasons for not reducing care and consideration from 30 per cent to 25 per cent were inadequate — where the modest reduction in the amount for care and consideration made by the primary judge was an adjustment to quantum only — where without any error of principle on the costs assessor’s part, it is not the type of adjustment that should have been made on the application for review, and the primary judge’s decision on this aspect of the review in favour of the respondent cannot be upheld. Appeal allowed with costs. Orders at first instance set aside. Instead the application for review is dismissed. Consequential orders. Costs.

MCG Quarries Pty Ltd v Offermans & Ors [2015] QCA 103 (14/9729) Margaret McMurdo P and Holmes and Gotterson JJA 16/06/2015

Application for Leave s 118 DCA (Civil) — Administration/Liquidators — Recovery of Money Paid — where Messrs Offermans and Brennan were appointed voluntary administrators of the second respondent on 24 March 2010 — where on the subsequent winding up of the second respondent Messrs Offermans and Brennan were appointed its joint and several liquidators by creditors — where proceedings were commenced in the Supreme Court on 11 February 2013 against some four parties — where the liquidators were the first plaintiff and the second respondent was the second plaintiff — where the proceedings were to recover payments that the second respondent had made to each of the parties separately within the six month period prior to the relation-back day, 24 March 2010 — where the proceedings against three of the parties were settled — where the fourth defendant in the proceeding was MCG Quarries Pty Ltd, the applicant in this appeal — where the applicant defended the claim against it for $106,186.70 — where the claim against the applicant was tried over two days in September 2014 in the District Court where on 16 September 2014 judgment was given in favour of the respondents — where the court declared that the second respondent was insolvent for the whole of the period between 30 September 2009 and 24 March 2010 — where the court ordered the applicant pay the first respondents or alternatively the second respondent $106,186.70 — where the second respondent was a provider of earthworks services to the mining sector — where the applicant is a supplier of quarry materials — where the second respondent was a customer of the applicant — where between April and July 2009 the applicant supplied quarry materials to the second respondent for $156,186.70 — where $50,000 was paid to the applicant by the second respondent in April 2009 — where the first respondents sought an order under s 588FF(1)(a) of the Corporations Act 2001 (Cth) directing the applicant pay the amounts of $25,000 and $81,186.70 to them on the basis that those monies were amounts paid under a voidable transaction as defined in s 588FE — where the basis for the first respondents’ claim was that each payment was an insolvent transaction as they were unfair preferences for the purposes of s 588FA — where the liquidators’ case relied upon the presumption in s 588FE(3) — where by virtue of that provision, if the liquidators proved that the second respondent was insolvent at 30 September 2009 then it is to be presumed that it was insolvent throughout the period beginning on that date and ending on 24 March 2010, a period which included the two dates of payment in November 2009 — where the applicant argued that the second respondent was able to pay its debts when they became due and owing at the time when the two payments to the applicant were made — where the learned primary judge had to determine whether the second respondent was insolvent at the time when the two payments were made — where the second issue for determination arose from the applicant’s reliance, in the alternative, upon s 588FG(2) — where the applicant pleaded that it received the two payments in good faith and that at the times it received them, it did not know that the second respondent was insolvent; that it had no reasonable grounds to suspect and did not suspect that the second respondent was insolvent; and that a reasonable person in its circumstances would have had no grounds for so suspecting — where the liquidators denied that the applicant had no reasonable grounds to suspect that the second respondent was insolvent at the relevant times — where the two issues identified in the proposed Notice of Appeal were whether the second respondent was insolvent at 30 September 2009 and whether the trial judge erred in his findings that the applicant’s defence under s 588FG(2) was unsuccessful — whether the application for leave to appeal under s 118 of the District Court of Queensland Act 1967 (Qld) should be granted — where in a note in the Solvency Report, Mr Brennan stated that he had sourced this item from the financial statements prepared by The Karm Group “and made relevant adjustments for the provisions for income tax calculated” — where in the course of argument of the appeal, attention focused upon Table 7 and, in particular, three items listed as debts due and payable at 30 September 2009 — where in sum, these items total $428,672, an amount considerably in excess of deficiency of assets at 30 September 2009 shown in Table 7 ($384,209) — where during the hearing of the appeal, the court was not taken to material in the record or otherwise provided with an explanation which could have justified a conclusion that the amount of $357,450 had fallen due and was payable at 30 September 2009 — where the inclusion of these three items in Table 7 as debts due and payable at 30 September 2009 was not justified as correct — where given this and the inconclusiveness of the other indicia referred to in Chapter 8 of the Solvency Report to which has been referred it was not open to his Honour to have found on the evidence of the Solvency Report that Lindley Mining was insolvent at 30 September 2009 — where the declaration of insolvency from that date based on the statutory presumption ought not to have been made. Grant leave to appeal. Appeal allowed. Set aside the declaration and order on 16 September 2014 and orders of 28 October 2014. Order in lieu thereof, that the claim against the appellant be dismissed. Invite submissions on costs.

Spencer v Burton [2015] QCA 104; [2015]26 QLR (14/6469) Holmes and Gotterson JJA and Ann Lyons J 16/06/2015

General Civil Appeal — Succession Law — where the deceased died of cancer in July 2012 — where Kent Richard Spencer obtained Letters of Administration on Intestacy of her estate on the basis that the he was her de facto partner — where the deceased’s mother brought an application seeking a declaration that Spencer was not a spouse or de facto partner of the deceased, the Letters of Administration of Intestacy granted to him be revoked and that a replacement grant of Letters of Administration of Intestacy be granted to her — where the primary judge was not satisfied that Spencer had proven on the balance of probabilities that he and the deceased had lived together as a couple on a genuine domestic basis for the required two year period prior to her death — where the primary judge made declarations and orders in terms of the application brought by the deceased’s mother — whether the primary judge erred in his reasons by acting unreasonably and against the weight of evidence in making findings of fact — whether the primary judge erred in his reasons by attributing little or reduced weight, misconstruing and failing to have regard to the evidence — where the reasons of the primary judge reveal an overemphasis on financial and property matters and a discounting of other indicia which were clearly present — whether the appeal should be allowed — where it would seem that in his ultimate analysis, the primary judge considered that the evidence about their long relationship, their mutual commitment to each other and the social and reputation aspects of their relationship was not as compelling as the financial and property evidence — where the primary judge gave no real explanation as to why this evidence on how the deceased and the appellant presented as a couple socially for more than a decade was not important — where neither did he really address why the reputational and other public aspects of the relationship was not considered to be significant when, as Williams JA said in PY v CY [2005] QCA 247, the issue as to “how the couple presents to the public, will be the most decisive consideration” — where the evidence of how the deceased and the appellant presented socially in this case was significant, particularly after she became ill — where the fact that the appellant made a commitment to support her during that extended period of time speaks volumes in terms of his actual level of commitment to her — where, as all of the criteria are not required to be present before a finding can be made that a couple are living together on a genuine domestic basis, there was no necessity for there to be any intermingling of finances and property — where the respondent seeks leave to adduce new evidence on the basis that the evidence supports the findings of the primary judge — where the evidence refers to the appellant’s dealing with the estate funds prior to the trial and after those orders were made restraining him from dealing with estate property — where it seems that a decision was made by counsel for the respondent that the application for an account would not be pursued at the time of the trial — whether the Court is satisfied that there has in fact been reasonable diligence and that the documents were able to be obtained prior to trial — where the evidence which came to light after the conclusion of the trial would not have had any impact on the respondent’s case — where this is clearly not a case which rests on the credit of the appellant, as it is clear that the learned primary judge did not fully accept the evidence of the appellant. Appeal allowed. Judgment and declarations made on 23 June 2014 set aside. Matter remitted to the trial division for determination by a different judge. Application for leave to adduce further evidence and notice of contention refused. Submissions invited on costs.

Samimi & Anor v Queensland Building and Construction Commission [2015] QCA 106 (14/9134) Margaret McMurdo P and Morrison JA and Boddice J 19/06/2015

General Civil Appeal — Procedure — Summary Judgment — where summary judgment was entered in favour of the respondent against the appellants on a claim by the respondent for recovery of monies paid by it pursuant to Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”) under a statutory insurance scheme — where there were two requirements for summary judgment: first, that there was no real prospect of success in any defence of the claim, and second, that there was no need for a trial — where the appellant submitted that a factual dispute which was relevant to the respondent’s prospects of success in relation to the claim — where the factual dispute was not sufficiently explained such as to allow the primary judge to conclude there was no need for a trial — whether the primary judge erred in giving summary judgment — where r 292 of the Uniform Civil Procedure Rules 1999 (Qld) contains two requirements for giving summary judgment: firstly, that there is no real prospect of success in any defence of the claim; secondly, that there is no need for a trial — where the consideration of whether a payment sought to be recovered under s 71(1) of the Act was a valid payment under the scheme does not merely raise an element of the respondent’s administrative processes anterior to that payment — where that issue raises whether the payment was made “on a claim under the insurance scheme”, a condition for recovery of the payment under s 71(1) of the Act — where the factual dispute was not sufficiently explained such as to allow the primary judge to conclude there was no need for a trial — where a trial may well have resulted in a finding the respondent was not entitled to recover the amount claimed in the proceeding and that would be a valid defence to the respondent’s claim for recovery under s 71(1) of the Act. Appeal allowed. Orders below be set aside. Respondent’s application for summary judgment be dismissed.

Packer v Tall Ship Sailing Cruises Australia Pty Ltd [2015] QCA 108 (14/8824) Gotterson JA and Boddice and Flanagan JJ 19/06/2015

General Civil Appeal — Torts — where the respondent operated a pleasure cruising business on the waterways of Moreton Bay — where the operator had two groups on board a catamaran — where the operator had a liquor license and had served alcohol to the assailant — where the assailant’s group had been loud and boisterous while consuming alcohol, and had sworn in the presence of children — where the respondent had asked the assailant’s group to cease swearing and had been rebuffed — where the respondent had ten crew members but had not engaged specialist crowd controllers — where the appellant submitted that the respondent should have had specialist crowd controllers or other crew available — where the trial judge found that even if the crew member had heard the group that was behaving loudly and swearing rebuff the appellant’s initial approach, they would not have identified there was a risk there might be violent, quarrelsome or disorderly conduct by those patrons — where the trial judge found there was no failure to exercise reasonable care on the part of the respondent — where it was accepted that a duty of care can exist on the operator of licensed premises, for injuries suffered as a consequence of the criminal actions of another which arose from disorder created by that operator — where it was accepted that the form of that duty depended on whether the particular circumstances supported a conclusion the harm arose out of disorder as part of a state of affairs created by that operator — where the operator had a liquor license and had served alcohol to the assailant — where the trial judge found that the scope of the duty of care owed by the respondent required consideration of the circumstances on the day in question was correct — where the appellant had sought a finding it was reasonably foreseeable the assailant would become violent, as he was part of the group which was swearing and oblivious to the presence of children — where the trial judge declined to do so on the basis that the issue of foreseeability required a consideration of all of the surrounding circumstances — where the circumstances as they unfolded did not give rise to any conduct warranting eviction by the respondent.. Appeal dismissed. Costs.

Attorney-General (Qld) v Morris & Anor [2015] QCA 112 (2015/2632) Holmes and Gotterson and Morrison JJA 23/06/2015

Case Stated — Kable Principle — where the Attorney-General for the State of Queensland applied for an order pursuant to s 61(5)(a) of the Supreme Court of Queensland Act 1991 removing a proceeding into the Court of Appeal — where the proceeding to be removed is from the District Court of Queensland — where the proceeding is a special case stated for the opinion of the District Court by his Honour the Chief Magistrate — where the order for stating the special case was made in Brisbane in a proceeding between the second respondent and the first respondent — where the first respondent had given notice pursuant to s 72B of the Judiciary Act 1903 (Cth) that the proceeding involved a matter arising under the Commonwealth Constitution or involving its interpretation — where the Attorney-General for the State of Queensland notified the registrar of the Magistrates Court of an intention to intervene in the proceeding — where the first respondent received an Infringement Notice that indicated that a Volvo Wagon had been detected by a photographic detection device travelling at 57 km/h along Carmody Road, St Lucia, within a speed zone of 50 km/h — where the first respondent was the registered operator of the vehicle at the time of the alleged offence — where the second respondent did not contend that the first respondent is the “actual offender” within the meaning of s 114(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) — where it was common ground that, as the registered operator of the Volvo Wagon the subject of the Infringement Notice, the first respondent was, at the date of the detected speeding, the person in charge of the vehicle as that term is defined in s 113 of TORUM — where it was also common ground that, not having given a notice under s 114(3)(b) of TORUM, the first respondent has continued to be the person in charge of the vehicle at the date of the detected speeding — whether s 114 of TORUM is invalid on the ground that it infringes the principle identified in Kable — where if s 114(1) were to require a magistrate to find a fictional fact on which a conviction under the section would rest, then its validity would be questionable under the Kable doctrine as an impermissible intrusion upon the judicial function — where the section does not require a fictional finding to be made in any given case — where a s 20 speeding offence has been committed, criminal responsibility for it under s 114(1) is not dependent upon a factual finding that the person in control was the driver of the vehicle at the time the offence was committed — where to conclude that criminal responsibility is attributed to an individual under s 114(1), the magistrate must find, and need only find, that a speeding offence has happened; that the offence has been detected by a photographic detection device; and that the individual was the person in charge of the speeding vehicle at the time — where no finding as to the identity of the actual driver need be made — where there no intrusion upon the judicial function by requiring a fiction to be found as fact. Answer to question: No invalidation of s 114 due to infringing the principle identified in Kable. (brief)

Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114 (2014/7267) Margaret McMurdo P and Gotterson and Philippides JJA 23/06/2015

Application for Leave Queensland Civil and Administrative Tribunal Act — where the respondent to the present application, McNab Constructions Australia Pty Ltd, applied to the Commercial and Consumer Tribunal for a review of directions issued by the Queensland Building Services Authority requiring McNab Constructions to rectify alleged defects in building work concerning some Teneriffe apartments — where the QBSA issued a number of directions to rectify to the respondent in respect of an apartment complex — where the respondent applied to the Commercial and Consumer Tribunal for review of the decisions to issue the directions — where the review proceedings became proceedings in QCAT as successor to the Commercial and Consumer Tribunal — where the respondent applied under s 42 of the QCAT Act for orders joining an array of entities as parties to each of the applications — where the applicant sought to be joined in each review proceeding under the name Donovan Hill Architects — where a member of QCAT ordered that the joinder application be dismissed with respect to all entities sought to be joined — where directions were made that any application for costs by QBSA or any of the proposed parties be filed by 18 January 2013 and that the costs applications be determined on the papers — where the applicant filed an application for costs — where three of the other proposed parties also applied for costs — where the Tribunal member made orders in respect of the applications on 20 August 2013 — where the respondent appealed against those orders and costs orders made in favour of two of the other proposed parties — where an Appeal Tribunal of QCAT allowed the appeal, set aside the costs orders and dismissed the costs applications of the applicant and the other two proposed parties — where a live issue in both the application before the member and the appeal to the Appeal Tribunal was whether QCAT has power to award costs to a person who successfully resists a joinder application — where the member concluded that QCAT was so empowered — where the Appeal Tribunal held that QCAT was not so empowered — whether the determination of a joinder application under s 42 is in exercise of QCAT’s original jurisdiction or its review jurisdiction — whether QCAT is empowered to award costs to a person whom a party to a proceeding in QCAT has unsuccessfully sought to join in the proceeding — where the question of law on which the appeal to this Court would be made here is whether QCAT is empowered to award costs to a person whom a party to a proceeding in QCAT has unsuccessfully sought to join in the proceeding — where the applicant accepts that the only statutory provision which it may contend invests QCAT with power to award costs to it is s 102(1) — where a person who successfully resists a joinder application in exercise of QCAT’s review jurisdiction is not a party to the review proceeding under s 40(1) and therefore cannot benefit from a costs order under s 102(1) as “another party to the proceeding” — where the irresistible conclusion is that a joinder application is not a proceeding determined in QCAT’s original jurisdiction — where the applicant is not, and never was, a party in whose favour a costs order might be made under s 102(1) — where the perceived uneven-handedness may well be a legitimate basis for a call for an amendment to the legislation — where, however, it does not warrant an interpretation of s 40(1), or, for that matter s 10(1)(a), which not only would depart from the unambiguous language of the provision but also would require additional words to be read into it. Leave to appeal granted. Appeal dismissed. Costs

CRIMINAL APPEALS

R v Broome [2015] QCA 119 (2014/304) Margaret McMurdo P and North and Henry JJ 26/06/2015

Sentence Application — where the applicant was convicted after trial of burglary in the night and assault offences and sentenced to a head sentence of five years imprisonment for two offences with lesser sentences all to be served concurrently — where the applicant has a bad criminal history — where the applicant claims his criminal history overwhelmed the sentence process and resulted in a sentence so high it was disproportionate to the seriousness of the offending for which he was sentenced — where no complaint is made about the decision not to fix an early parole eligibility date — where the applicant’s offending was apparently motivated by an emotional reaction rather than associated criminal conduct such as drug dealing or robbery and was not committed in company — where it involved unforced entry into the enclosed area under the house rather than the residential component of the home upstairs — where entry into such an area is still serious, it is comparably less serious than violating the sanctity of the residential component of a dwelling — while the applicant’s criminal history justifies a more severe penalty than three years imprisonment, a head sentence of five years is too great an uplift — where it is so high as to be disproportionate to the gravity of the instant offending and bespeaks error in the sentencing discretion. Application granted. Set aside the sentences of five years imprisonment imposed on each of counts one and two and instead impose sentences of imprisonment of four years on each of those counts. Confirm the other lesser sentences. All sentences to be served concurrently.

R v Corowa [2015] QCA 121 (2014/165) Margaret McMurdo P and Atkinson and Applegarth JJ 26/06/2015

Appeal against Conviction & Sentence — where the appellant was convicted after trial of attempted murder — where the appellant was sentenced to 14 years imprisonment — where the complainant could not identify the gunman — where the complainant was the boyfriend of the appellant’s former partner — where the appellant had sent a large number of text messages to his former partner indicating he was keen to renew their relationship — where the appellant hired a private investigator to follow his former partner — where the appellant and the private investigator followed the appellant’s former partner to the home of the complainant’s mother — where the appellant and an accomplice later attended the house — where the accomplice gave evidence that he knocked on the door, the complainant’s mother answered, and he then returned to the car — where the complainant and his mother went outside the house — where the accomplice gave evidence that the appellant, carrying a shotgun loaded with birdshot, chased and shot at the complainant, hitting him in the shoulder — where the complainant’s mother told police that the man who came to the door was the same man who shot the complainant — where the complainant’s mother described this man as “Kiwi”; he did not have dark skin, was of medium build and was not very tall — where the appellant was a distinctive, muscular looking young man of black African descent — where shortly after the shooting, the complainant’s mother was shown a photo board of 12 photographs of young men of black African descent — where the appellant’s photograph was included on the photo board — where the complainant’s mother did not recognise anyone on the photo board — where the complainant’s mother was later shown a photo board of 12 different men, apparently of Pacific Islander or Maori descent, which included a photograph of the accomplice — where the complainant’s mother stated that the photo of the accomplice stood out — where the complainant’s mother later participated in a COMFIT process and the image produced closely matched the appearance of the accomplice — where the complainant’s mother knew the appellant was a suspect — where the complainant’s mother had asked her son for a photograph of the appellant — where three months after the shooting, the complainant’s mother was working at a service station when the appellant entered — where the complainant’s mother gave evidence that upon seeing the appellant, she now recognised him as the gunman and contacted police — where the appellant’s trial counsel did not apply to exclude the evidence of the complainant’s mother identifying the appellant as the gunman — whether the evidence should have been excluded — whether a miscarriage of justice has occurred — where it is clear from the prosecutor’s opening address, the closing addresses of counsel and the judge’s summing up that the trial was conducted solely on the basis that the appellant was the gunman who shot the complainant — where there was certainly a strong body of evidence at trial that the appellant had a motive to injure the complainant, but that was equally consistent with him having procured Mr Graham to harm the complainant and with Mr Graham being the gunman — where the evidence of motive did not establish that the appellant was the gunman — where the appellant’s trial was conducted solely on the basis that the appellant was the gunman who shot the complainant — where the evidence of the complainant’s mother was of poor quality and deserving of little weight — where the trial judge’s directions did not fully discuss a number of real weaknesses in the identification evidence — where it is unfortunate in this case that the appellant’s counsel at trial did not sufficiently assist the judge in identifying the weaknesses in this identification evidence — where that that cannot completely absolve a judge from the responsibility identified in Domican that “Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. … the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence.” — where the evidence in this case raises questions as to whether the investigating police were astute in their duty to take every precaution reasonably available to guard against the miscarriages of justice that can occur through identification evidence — where after giving the appropriate general warning as to the dangers of identification evidence, the trial judge stated: “the evidence capable of supporting the visual identification of the [appellant] by Mrs Marjanovic was her identification of him at the service station.” — where in doing so, the judge suggested that Mrs Marjanovic’s visual identification could be supported by itself — where this was wrong and confusing — where the judge did not mention the following real weaknesses in Mrs Marjanovic’s evidence: when she was shown a photo of the appellant in the photo board shortly after the shooting, she did not recognise him; in light of the way the police investigation was conducted and her conversations with the complainant and Ms Ray following the shooting, her identification of him at the service station about three months after the shooting may have been a reconstruction rather than an identification and it can be inferred that she was aware that the appellant was a young man of African descent, and having been shown a photo board of young men of black African descent by police shortly after the shooting, and knowing that it contained the appellant’s photo and that he was the prime suspect, she may have identified him at the service station from his photograph on the photo board rather than making a genuine identification of the gunman. Appeal allowed. Conviction set aside. Retrial ordered.