Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Kruck v Queensland Regional Parole Board [2008] QCA 399 Keane JA Holmes JA Fraser JA 9/12/2008

Application from the Supreme Court — Application for Extension of Time — Applicant at time of hearing in custody in the Wolston Correctional Centre — Sentenced on 7 December 2006 to a term of imprisonment of four years and six months with a parole eligibility date of 14 March 2008 — In December 2007 the applicant applied to the respondent for parole — Respondent failed to decide this application within 120 days after its receipt on 17 December — By virtue of s 193(5) of the Corrective Services Act 2006 (Qld) the respondent was taken to have decided to refuse to grant the application — On 28 April 2008 the applicant filed an application for a statutory order of review pursuant to the Judicial Review Act 1991 (Qld) that was heard by the primary judge on 16 May 2008 — The respondent did not actually consider the application for parole at all before the 120 day period expired — Primary judge ordered that the respondent consider any further application by the applicant as soon as possible — On Appeal — The respondent conceded that the Board’s failure to consider the December 2007 application within the 120 day period gave rise to a ground of review under s 20(2)(e) and s 23(g) of the JRA — The respondent conceded that the applicant was entitled to have the deemed refusal of the respondent of his application for parole set aside in order that his record should not include the note that his application for parole of December 2007 had been refused — Once the deemed decision is set aside, the position is that the December 2007 application had not been decided — HELD: Application for extension of time to commence an appeal allowed, appeal allowed, decision of primary judge set aside, and in lieu thereof the refusal of the application for parole of December 2007 be set aside and that the matter to which the decision relates be referred to the respondent for decision at its meeting on 17 December 2008.

Colbran t/a Tablelands Coffee v State of Queensland; Hatmill P/L & Anor v State of Queensland; Maloberti & Anor v State of Queensland [2008] QCA 418 McMurdo P Keane JA Fraser JA 23/12/2008

Appeal from the Supreme Court — General Civil Appeal — The respondents were growers of coffee on the Atherton Tableland in North Queensland — In 1995 fruit in North Queensland was found to be infested by the papaya fruit fly — A spray (Maldison 500) was used by government agencies to eradicate the male insects — Total eradication occurred by 1999 — The respondents suffered collateral damage — In 2008 the respondents were awarded substantial damages — The trial judge found that the appellant’s spraying of the respondents’ plants caused them to fail — The appellant did not challenge this finding — On Appeal — Not part of the appellant’s case that the insect could not have been eradicated from the respondents’ properties without damaging their fruit trees even if all due care had been used — The appellant sought to be absolved from the obligation to exercise care because of its failure to recognise one of the risks that made the taking of care necessary — For that reason the appellant’s arguments had an air of unreality about them — The simple fact, undeniable and indeed undenied by the appellant, is that the appellant’s officers did not advert to the risk of damage to the respondents’ coffee plants at all — The appellant’s own Pesticide Application Manual identified the risk of phytotoxicity involve in the use of the spray — Appellant’s principal submission could not be sustained in any terms — The permit obtained by the appellant did not afford any justification or excuse which might relieve the applicant of liability, due to the permit did not extend to relief due to negligent use of the spray nor where the volume or frequency of spraying exceeded that authorised by the permit — The appellant contended that its contemporaneous records provided incontrovertible evidence of the volume of bait sprayed each dy on which identified farms were sprayed — The appellant’s submissions did not grapple with the large body of evidence which supported the view of the trial judge who accepted the respondents’ challenge to the reliability of the records so far as they recorded volumes — Evidence of an employee of the appellant writing out “re-created” records of volumes of bait sprayed, curiously using a variety of differently coloured pens to make different entries in the record, was not challenged in cross-examination — It is clear that the appellant’s records were not proved to be worthy of such reliance as to justify the overturning the trial judge’s conclusion that the trees were sprayed in excessive volumes and excessively frequently — In relation to quantum it was reasonably open to the trial judge to prefer the opinion of one expert over another — The expert opinion for the respondent was based upon the circumstances of the industry in North Queensland, whereas the appellant’s expert opinion was based in large part upon the experience of the industry in the different circumstances of New South Wales — HELD: Appeal dismissed with parties to make submissions in relation to costs.

Pollard v Trude [2008] QCA 421 McMurdo P Holmes JA White AJA 23/12/2008

Appeal from the Supreme Court — General Civil Appeal — Torts — The appellant suffered an injury after being hit in the eye-socket by a golf ball driven by the respondent — The respondent had called out “Watch it, Errol”, or “Watch out, Errol” after hitting the ball — The first name of the appellant was “Errol” — Group of four players were competent golfers — The appellant was the first of the group to hit his second shot, and had hit this shot into a stand of trees — He had proceeded to look for his ball — The respondent’s ball was at a point of about 80 metres behind the appellant at the time of his second shot — The respondent’s shot entered the upper part of a tree on the edge of the fairway and, as it went into the tree, he let out what the trial judge found to be a warning call — The appellant turned in the direction of the call and was hit in the eye-socket — On Appeal — The appellant’s expectation of a warning was relevant as a factor in determining whether it was an obvious risk to him of being struck and injured by the respondent’s ball — Trial judge was right to find that both “Watch out” and “Fore” amounted to warnings of the ball’s approach — In hindsight, “Fore” might have been the call better to produce a quicker and more effective reaction to danger but the respondent could not have predicted that the ball would actually strike the tree and ricochet at the precise angle to hit the appellant at eye level — HELD: Appeal dismissed with costs.

Moreton Bay College v Teys [2008] QCA 422 McMurdo P Holmes JA Fryberg J 24/12/2008

Appeal from the District Court — General Civil Appeal — Employment law — Mr Teys was employed under contract as the headmaster of Moreton Bay College, a well-known school for girls — On 17 September 2004 Teys deliberately misled Mrs Stannard, chair of the MBC board, on his relationship with a woman who was not his current wife — On 17 March 2005 the college summarily dismissed Teys alleging that he had been dishonest in his dealings with the board of the college in that he had either misled or been untruthful to it — The college sued Teys for an amount it stated was owing under the contract and succeeded — That judgment was not challenged — Teys counterclaimed and it was the primary judge’s finding that the college had the right to terminate Teys employment summarily under clause 13.2(e) of the contract that was challenged — On Appeal — The narrow focus of the issue on appeal highlighted a number of deficiencies in the relevant parts of the pleadings — In this trial a number of things happened or did not happen in the way in which one would have expected from the pleadings — The trial judge was confronted with difficulties from the pleadings — If one had regard only to the pleadings it was not open to the judge to decide the case as he did under cl 13.2(e) — MBC did not plead that the conduct (including the dishonesty) constituted serious misconduct in the course of Mr Teys’ duties; so that a necessary element of cl 13.2(e) was missing — Consequently a lack of candour does not constitute a failure faithfully and diligently to perform a duty — It was not open to the trial judge to make the finding that he did — Teys’ conduct in engaging in the relationship did not amount to misconduct, let alone serious misconduct — Adultery, whether clandestine or not, is not unlawful and the relationship was not engaged “in the course of the performance …of his duties under the contract” — HELD: Appeal allowed with costs, order of District Court set aside, judgment on the counterclaim for Teys for damages to be assessed, matter remitted to the trial judge for the assessment to be assessed and direct that fresh evidence be allowed on the assessment be in the discretion of the trial judge.

CRIMINAL APPEALS

Eggmolesse v Bruce [2008] QCA 393 McMurdo P Fraser JA McMeekin J 9/12/2008

Application for Leave to Appeal from the District Court — The applicant was found guilty before a magistrate of being in charge of a motor vehicle elsewhere than on a road and was fined $720 and disqualified from driving for nine months — Appeal to the District Court was dismissed and he was ordered to pay $900 costs — Three police officers gave evidence as did the applicant and his sister — The magistrate accepted the applicant’s version of events where it differed from the prosecution witnesses — The applicant gave evidence that his sister asked him to bring some petrol to a vacant lot where the car in which she was a passenger had stopped — He walked from his home to the car carrying the petrol because he did not have a licence and was drunk — He was a mechanic — He had no intention of driving the car and once he realised there was no key in the ignition he left the driver’s side and shut the bonnet — The magistrate found that he leaned into the car to see if it would start but did not start the car — On Appeal — Two issues were raised on appeal that were not raised before the Magistrates Court nor the District Court — The applicant contended that the evidence did not demonstrate that the car was a motor vehicle under the Transport Operations (Road Use Management) Act 1995 (Qld) — The question of whether a non-operational motor vehicle is a motor vehicle was not in evidence before the magistrate, the District Court judge nor the Court of Appeal — Not in issue that the applicant was in charge of the car — The evidence established beyond reasonable doubt that the applicant, not being “in” the car, by his actions manifested an intention of refraining from driving whilst he was under the influence of liquor and the matters raised under s 79(6)(a)(ii) and s 79(6)(b) were established under the Act — As the car was located on a vacant allotment off the roadway s 79(6)(c) was established by the evidence and the applicant had not previously been convicted of the offences referred to in s 79(6)(d) within a period of one year prior to the date of the offence — All the matters referred to in s 79(6)(a) to (d) were established on the material before the judge — The judge cannot be fairly criticised when this material was neither a ground of appeal before him nor an issue before the magistrate at trial — HELD: Application granted, appeal allowed, order of the District Court set aside and a verdict of not guilty ordered.

R v Rowlingson [2008] QCA 395 Keane JA Muir JA Fraser JA 9/12/2008

Application from the Supreme Court — Sentence Application — The applicant was convicted of his own plea of guilty of one count of murder, one count of interference with a corpse, one count of stealing and one count of unlawful use of a motor vehicle — Applicant was 16 years old at the time of the offending and 18 at the time of sentencing — The murder victim was his brother — Sentenced to life imprisonment for the murder with the other sentences to be served concurrently — Conviction was recorded and an order made permitting publication of the applicant’s name even though he was a juvenile — On Appeal — Was not, and could not be, suggested on the applicant’s behalf that the discretion conferred on the sentencing judge by s 176(3)(b)(ii) of the Juvenile Justice Act 1992 (Qld) was not enlivened in this case — The murder was cold-blooded in the extreme, pre-meditated and remained utterly senseless — There can be no optimism about the applicant’s rehabilitation having regard to his lack of empathy — The applicant’s plea of guilty was in no way demonstrative of remorse; it was of utilitarian value only — Having regard to the heinousness of the murder in this case, a sentence which requires the applicant to serve 15 years in actual custody while receiving treatment in respect of his profound deficits in empathy cannot reasonably be said to be disproportionate to the gravity of the offence — There is a legitimate reason in terms of protection of the community why the facts in this regard should be made public — HELD: Application dismissed.

R v Pratt [2008] QCA 402 McMurdo P Fraser JA Chesterman J 12/12/2008

Application from the Supreme Court — Sentence Application — The applicant pleaded guilty to one count of supplying a dangerous drug and two counts of possessing a dangerous drug — The applicant was placed on 18 months probation, drug testing, unpaid community service for 100 hours and a conviction was recorded — On Appeal – It should immediately be noted that the learned primary judge’s sentencing remarks suggest that he imposed a single sentence for the three offences instead of imposing individual sentences in respect of each offence — That conclusion is also supported by the endorsement on the indictment which does not state that the single sentence imposed relates to each individual offence – In those circumstances, this Court is required to allow the appeal and to re-exercise the sentencing discretion — Common ground that the sentence imposed at first instance was the appropriate sentence in respect of the most serious offence and concurrent short terms of probation the appropriate penalties for the lesser offences — Since R v Richardson [1997] QCA 161 amphetamine has become a schedule 1 drug — Unlike Richardson the present applicant did not name her supplier to police — The applicant has not shown that the consequences of the recording of a conviction will have as immediate and direct impact on her economic and social well being and chances of finding of employment as in Richardson’s case — HELD: Application granted, appeal allowed, sentences set aside, on count 1 applicant sentenced to probation for 18 months, drug testing, unpaid community service of 100 hours, in respect of counts 2 and 3, six months probation on the same terms and conditions as count 1, a conviction recorded on count 1, no convictions recorded on counts 2 and 3.

R v NK [2008] QCA 403 Muir JA Fraser JA Fryberg J 12/12/2008

Appeal from the District Court — Sentence Application — The applicant was convicted on his pleas of guilty to three Commonwealth offences and 85 State offences — The offences ranged from rape and incest to using a carriage service to distribute child abuse material — He was sentenced to effectively 15 years imprisonment for the State offences — Each Federal offence was ordered to be served cumulatively upon each other making a total Federal sentence of four years — The sentencing judge ordered that the applicant be released after serving 24 months of that sentence upon his giving security by recognizance in the sum of $1,000 conditioned that he be of good behaviour for a period of two years — The complainant was born on 15 April 1999 and looked upon the applicant as her father and he was the only father figure she knew — The applicant and the complainant’s mother married in 2005 — The sexual abuse offences occurred about one week apart in March 2005 and he made videos of that abuse — The sentencing judge said that the appropriate range was between 10 and 18 years for the head sentence but that the applicant was entitled to a significant discount because of his pleas of guilty to ex-officio indictments and his cooperation with authorities — On Appeal — The applicant’s rapes and other sexual abuse of the complainant were shocking offences but quite unlike the circumstances of R v Robinson [2007] QCA 99 — The applicant’s offending occurred during two relatively brief occasions one week apart, after which the applicant engaged in no similar offending for the following 15 months before he was arrested — Robinson engaged in systemic, prolonged and callous sexual abuse — The sentencing judge erred in relying upon Robinson as an indication that the permissible range of sentences extended as high as 18 years — The sentencing discretion must be exercised afresh — Having regard to the circumstances of the applicant’s sexual abuse offences and the comparable decisions an appropriate head sentence is 10 years imprisonment for the State offences — The appropriate total Federal sentence is four years imprisonment commencing after the applicant had served eight years of the State sentence, but with provision for parole after the applicant has served one year — The recognizance release order was either futile or, if effective, did not reflect the sentencing judge’s intention — HELD: Application granted, appeal allowed, vary the sentence to effectively a head sentence of 10 years for the State offences with a declaration of serious violent offences, set aside the sentences for the Federal offences and instead order an effective head sentence of four years imprisonment for the Federal offences commencing after the applicant has served eight years of the State sentence, fix a single non-parole period of one year for each Federal offence — Overall head sentence of 12 years and a minimum period of imprisonment of nine years.

R v McBride [2008] QCA 412 de Jersey CJ Holmes JA White AJA 19/12/2008

Appeal from the District Court — Appeal against Conviction — Appellant convicted after a trial of one count of assault occasioning bodily harm, one count of indecent assault and two counts of rape, all said to have been committed against his former de facto wife — He was sentenced to six and a half years imprisonment on the rape counts and lesser sentences on the assault counts — The learned judge gave and reiterated the conventional directions to the jury that the appellant could only be convicted of any offence if they were satisfied beyond reasonable doubt that the Crown had proved every element of the offence and that the burden was on the Crown, there being no burden on the appellant to establish anything — On Appeal — This was a case in which the complainant’s and the appellant’s versions of the crucial evidence were starkly opposed — The complainant’s evidence was not corroborated in any way — The direction given by the learned judge failed to explain to the jury that it was possible for them to find the defence evidence unconvincing or, indeed, to reject it, but nevertheless, to acquit if they were not satisfied that the Crown had made out its case beyond reasonable doubt — There was a real prospect that the statement, “On the other hand, his evidence may strengthen the case for the prosecution”, left the jury with the impression that an adverse view of the appellant’s evidence could serve to bolster the Crown case — In leaving that interpretation open, it was a dangerous misdirection — The result in this case emphasizes yet again the desirability of judges using the “Benchbook” directions — Disregard of or departure from those directions raises real risk to any subsequent conviction, with drastic consequence for complainant, accused and the public — HELD: Appeal allowed, convictions set aside and a new trial ordered on all four counts.

R v Kovacs [2008] QCA 417 de Jersey CJ Muir JA Fraser JA 23/12/2008

Appeal from the Supreme Court — Appeal against Conviction & Sentence — The appellants were husband and wife and were convicted of intentionally possessing a slave and intentionally using a slave — The appellants brought the complainant to Australia from the Philippines to work and live with the appellants at Weipa — The complainant received no regular wage — Her working hours were 6am to 6pm Monday to Friday and from 6 am to noon on Saturdays, and, normally, domestic work between 10pm and 11pm each night after work — Her passport was taken by the appellants — Mrs Kovacs relied on five grounds of appeal and Mr Kovacs on three — One ground of appeal for each party, couched in similar wording, was successful, with all other grounds unsuccessful — The appellants’ daughter gave evidence at trial — Pursuant to s 21A(2)(a) of the Evidence Act 1977 (Qld) the primary judge directed that a screen be placed so as to obscure the view between the daughter and the appellant, Mr Kovacs, and directed the jury against drawing adverse inferences — On Appeal — The primary judge’s direction was a strong one — The warning against adverse inferences did not satisfy the requirements of sub-section 8(b) and (c) — The direction did not address the probative value of the subject evidence or the weight to be given to it — Decisions of this Court establish that failure to comply with a provision couched in the mandatory terms of s 21A(8) is an error of law which renders the trial irregular notwithstanding the failure of counsel for the accused at trial to seek a direction in conformity with the provision — Conviction could only be upheld by application of s 668E(1)(A) of the Criminal Code — There were material inconsistencies in the evidence of significant witnesses capable of creating doubts about the witnesses’ reliability — In addition there was evidence which, if accepted, weakened the prosecution case — Strong body of evidence, including the complainants own evidence, contradicting that the appellants restricted the complainant’s freedom, communication and movement from the home or shop — The “natural limitations” on the Court of Appeals ability to evaluate and find the relevant facts prevent a finding of guilt beyond a reasonable doubt and make this an inappropriate case for the application of the proviso under the Code — HELD: Appeals allowed, verdicts of guilty set aside and retrials ordered.