Court of Appeal Judgment Summary Notes

Cook’s Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322 McMurdo P Keane JA White AJA 14/10/2008

Appeal from the Supreme Court — Application for stay of execution — On 18 September 2008 the learned primary judge made orders in a single judgment for Stork in the sum of $15,216,484.16 in relation to a contractual agreement — Trial Judge refused Cook’s application for an order staying the judgment in favour of Stork pending the determination of an appeal which Cook had foreshadowed — On Appeal — Refusal of a stay would not render Cook’s appeal to this Court nugatory — If Cook was placed into receivership of liquidation the rights could be pursued on the appeal by the liquidator or receiver — Trial Judge was not satisfied by the evidence then adduced by Cook that it would suffer irremediable harm if it was required to satisfy the judgment before the determination of the foreshadowed appeal — Trial Judge was entitled to be sceptical on the evidence before him that Cook could not satisfy the judgment sum — Any harm to Cook which might arise from the payment of its judgment debt pending the determination of the appeal might well be avoided by Cook’s shareholder — Court should decline to delay a judgment creditor in the execution of its rights when that delay may ultimately enure to its disadvantage by the diminution of the judgment debtor’s ability to meet its obligations under the judgment over the period of that delay — Court of Appeal cannot say that the Trial Judge should have reached an outcome more favourable to Cook on the material before him — HELD: Appeal dismissed, costs on the indemnity basis, Application refused, costs on the standard basis.

Deputy Commissioner of Taxation v Falzon [2008] QCA 327 McMurdo P Fraser JA Philippides J 17/10/2008

Application from the District Court — On 30 October 2007 the District Court dismissed the applicant’s application to set aside a summary judgment in favour of the respondent — On 23 April 2008 the applicant applied to the Court of Appeal for an extension of time within which to apply for leave to appeal — Applicant’s explanation for the lengthy delay unsatisfactory, however must be considered in context of other matters — The issue on the pleadings was whether or not the respondent had validly allocated the company’s payments to its debts other than its outstanding debts in two separate director penalty notices (DPN) — The Trial Judge did not give any reasons for rejecting the applicant’s argument that the director penalty notices were invalid — On Appeal — Substance in the applicant’s complaint that the reasons were inadequate because they did not grapple with the invalidity argument — Trial Judge’s conclusion that there was no such defence practically deprived the applicant of the opportunity to contest his liability at a trial — More than an exiguous duty on the Trial Judge to give reasons for that conclusion — The second DPN notice made it perfectly clear that each amount tabulated in it represented a separate liability of the company — The second DPN fulfilled the statutory purposes and was not misleading in relation to those liabilities asserted in it that were relevant to the respondent’s claim, despite the error or errors in other liabilities asserted in it — HELD: Application for extension of time in which to apply for leave to appeal granted, Leave to appeal granted limited to adequate reasons and the ground that the second DPN was invalid, Appeal dismissed, Applicant to pay costs of the applications and appeal.

Application from the District Court — Applicant sought leave to appeal against sentence — Applicant pleaded guilty to eight counts of indecent treatment of a child under 12, with three of these counts having an aggravating circumstance that the child was under his care — Applicant sentenced to four years imprisonment on each count to be served concurrently with parole eligibility after one year — Applicant and the mother of the complainant were engaged to be married — Complainant referred to the applicant as “Dad” — Offending came to light as a result of the applicant volunteering to the child’s mother and subsequently admitting to her parents and the police, what he had done — On Appeal — Conduct, though very serious and repugnant as it was, did not involve any penetration — Applicant’s remorse, plea of guilty and the volunteering of information about what had occurred were all matters to be taken into account in his favour — HELD: Leave granted, appeal allowed, sentence of two years imprisonment to be suspended after eight months and fix an operational period of three years.

R v Hooper; ex parte Cth DPP [2008] QCA 308 Mackenzie AJA Cullinane J Jones J 3/10/2008

Appeal from the District Court — Appeal against sentence by the Commonwealth for an offence of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, to which the respondent pleaded guilty — Sentencing judge had discharged the respondent under s 19B of the Crimes Act 1914 (Cth) without proceeding to conviction upon his giving security by recognisance of $500, on condition that he be of good behaviour for two years and that he have no contact directly or indirectly with named persons during the period of the order — Complainant was the fiancée of the daughter of a woman with whom the respondent had been living — Offence was the culmination of seven months of frustration on the respondent’s part about the complainant’s behaviour — Two separate communications charged in the one indictment, one a telephone conversation, the other a text message — Sentencing judge said, in effect, that had the telephone call been the only contact, it may have been able to be treated as merely an expression of anger with the complainant, made in the heat of the moment, however the response to a conciliatory text message from the complainant was an over-reaction containing words towards him, his fiancée and her father and could not be described as trivial — On Appeal — Not a case where there was a threat in the message of immediate consequences which would happen in any event immediately upon the respondent encountering the complainant in some unpredictable way — Sentencing judge correctly discerned that the case was “borderline” but exercised the discretion in favour of the respondent — HELD: Appeal dismissed.

R v Bevin [2008] QCA 310 McMurdo P Cullinane J Atkinson J 7/10/2008

Appeal from Supreme Court — Appeal against conviction — Appellant convicted on two counts under the Drug Misuse Act for unlawful production of unlawful production of methylamphetamine and having in his possession a quantity of glassware and chemicals for use in connection with the commission of the crime of producing a dangerous drug — Appellant was sentenced to a term of imprisonment which had been served by the time of the appeal — Evidence was entirely circumstantial — Applicant had representation at trial did not give evidence — Trial Judge in summing up made no reference to the absence of the accused from the witness box — Counsel for the accused did not seek any redirection on the issue — On Appeal — Appellant was self-represented — Court considered White J’s reasoning in R v DAH [2004] QCA 419 — Failure to give any direction on the failure of the defendant to give any evidence was presumably an oversight but must be regarded as a serious defect in the learned trial judge’s directions to the jury and must be taken to have resulted in a miscarriage of justice — HELD: Appeal allowed, convictions set aside, order a new trial on each count.

R v David [2008] QCA 311 Keane JA Jones J Daubney J 7/10/2008

Appeal from the District Court — In 2007 the appellant was convicted of one count of maintaining an unlawful sexual relationship with the child, AG, with a circumstance of aggravation and 10 counts of aggravated indecent treatment of AG, four counts of aggravated treatment of SG, the twin sister of AG, and was acquitted of one count of aggravated indecent treatment of SG — Appellant sentenced to five years imprisonment in respect of the first count and to concurrent terms of three years in respect of the other offences — Complainants were six years of age at the time of the alleged offences and 21 years old when they gave evidence at trial — Evidence elicited from the complainant’s mother was to the effect that a friend of the appellant was with him whenever he was at her house — This friend had died in 2002 — On Appeal — Trial judge failed to instruct the jury that a witness who might have been expected to give evidence was no longer available to the appellant because of the delay which had occurred in bringing the complaints against him — Jury should have been instructed that, on the complainant’s mother’s evidence, there was a real possibility that the complainants were left with the appellant only when he was accompanied by this witness, and that they should turn their mind to whether the evidence of the complainants satisfied them that the possible presence of the witness in the house on the occasions of the indecent treatment was not a reason to doubt whether the appellant had the opportunity to engage in the mistreatment alleged against him — There were aspects of the evidence in the Crown case which could have been viewed differently had the jury been given an adequate Longman warning — HELD: Appeal against conviction allowed, convictions set aside and a new trial ordered on all counts save for the count for which the appellant had been acquitted.

R v NJ [2008] QCA 331 Mackenzie AJA Jones J Daubney J 24/10/2008

Application from the District Court — Sentence application — Applicant pleaded guilty to one count of incest and sentenced to five years imprisonment to be suspended after one year with an operational period of five years — Offending occurred more than 33 years ago — Complainant was his natural daughter who was 14 years old — Complainant maintained silence for two and a half years before confronting the applicant who admitted the offending not only to his wife but also to other members of the family — Complainant maintained what seems to have been cordial contact with the applicant over 30 years prior to her making her complaint to the police in December 2003 — Police did not contact the complainant until January 2007 — At sentence, applicant was suffering from a number of debilitating health issues — On Appeal — Cases referred to the learned primary judge each described offending which was more serious than that of the applicant — Applicant, since his offending, apparently has led a constructive life and contributed to the community which suggests some rehabilitive process — In the circumstances of this case the delay should be regarded as a significant mitigating factor — Use of delay as an aggravating factor by the primary judge indicated that the sentencing discretion miscarried — Applicant now 78 years of age, no prior convictions, man of good character with a good work history and has contributed to the community — Demonstrated remorse and early plea of guilty — Consideration must be given to earlier than normal suspension of his term of imprisonment due to his physical limitations and ongoing treatment — HELD: Application for leave granted, Appeal allowed, Sentence set aside and applicant sentenced for a period of four years, suspended after six months for an operational period of four years.

R v CAH [2008] QCA 333 McMurdo P Mackenzie AJA Dutney J 24/10/2008

Appeal from District Court — Appeal against conviction, Sentence application — Appellant found guilty after trial of one count of maintaining a sexual relationship with a child, 10 counts of indecent treatment of a child under 16 under his care and three counts of common assault — Appellant sentenced to nine years imprisonment on the maintaining count and to lesser concurrent terms of imprisonment on the remaining counts — Complainant was his step-daughter — Offences occurred between September 1990 and August 1995 when the complainant was between 11 and 16 years old — Appellant had pleaded guilty in the County Court of Victoria in December 2005 to counts of gross indecency and indecent assault of a person under the age of 16 involving the complainant and a female cousin of the complainant — On Appeal — Trial Judge erred in not directing the jury in terms set out by Hayne J in HML, namely that, before acting on it, they must be satisfied beyond reasonable doubt that the alleged sexual conduct between the appellant and the complainant in Victoria and Queensland, which were not the subject of the present charges, occurred — Necessary for the jury to clearly understand what was and was not capable of supporting the complainant’s evidence as to the commission of an offence or offences — Trial Judge’s directions that the complainant’s evidence was corroborated on uncontentious peripheral issues such as the layout of houses, the dates when she had attended various schools, and that she had suffered vaginal infections, actively misled the jury on these crucial matters — Prosecution could not rely on the evidence of the Victorian offences and the appellant’s admission to the cousin as capable of corroborating the complainant’s evidence as lies showing a consciousness of guilt, because the prosecution relied on the proof of the Victorian offences and the admission to the cousin as steps in the proof of the prosecution case against the appellant (HML)— Respondent conceded that the complainant’s evidence on two counts was so general and so unspecified that it was insufficient to meet the particulars provided by the prosecution on those counts and the convictions on these two counts should be set aside and verdicts of acquittal be entered for these two counts — The primary judge’s multiple errors amounted to such a significant denial of procedural fairness that it is impossible to conclude that no substantial miscarriage of justice has actually occurred in this case — HELD: Appeal against conviction allowed, Guilty verdicts set aside, Verdicts of acquittal entered on two counts, Order retrials on the remaining counts on which the guilty verdicts were set aside.

R v Rodd; ex parte A-G (Qld) [2008] QCA 341 de Jersey CJ White AJA McMeekin J 31/10/2008

Appeal from the Supreme Court — Appeal against sentence by the Attorney-General (Qld) — Respondent had pleaded guilty to numerous drug offences the most serious was carrying on the business of unlawfully trafficking in methylamphetamine between January 2002 and early March 2004 — Respondent was sentenced to nine years imprisonment with parole eligibility fixed after six years — Respondent also pleaded guilty to two summary Commonwealth offences and an indictable Commonwealth offence (giving false evidence to an examiner) with the latter offence attracting a six month term of imprisonment to be served cumulatively upon the nine year term — Respondent was 34 year of age at sentence — Respondent was sentenced as a principal in the trafficking business — On Appeal — This was a particularly serious instance of trafficking in a schedule one drug — Persisted for more than two years, offending was relentless, continued while the respondent was on bail, amounts produced were large, commercially motivated, funding an extravagant lifestyle and the trafficking was attended by gangster-type actual and threatened violence — Massive scale of this production and trafficking operation dramatically surpassed anything justified on the basis simply of the maintenance of the respondent’s own drug habit — Pleas of guilty were not indicative of remorse and were not timely pleas — Relevant range of sentence began at 10 years imprisonment — Sentence of 12 or 13 years would have been appropriate as the appellant had sought no more than 10 years, and the newly imposed sentence should not exceed that term, this being an Attorney’s appeal — HELD: Appeal allowed in respect of trafficking count, sentence below set aside, on the trafficking count the respondent be imprisoned for 10 years, that in respect of the trafficking count there be a declaration that the respondent’s conviction is of a serious violent offence, and the other sentences imposed and other orders made be confirmed.