Court of Appeal Judgment Summary Notes

CIVIL APPEALS

Redland Shire Council v Edgarange P/L [2009] QCA 016 McMurdo P Culliane J Atkinson J 13/02/2009

Application for Leave to Appeal from the Land Appeal Court — General Civil Appeal — Compulsory Acquisition of Land — The respondent was a land development company that had entered into a contract to purchase a large parcel of land — The land was at that time subject to the Redland Shire Planning Scheme, which commenced operation in February 1988, and was zoned Rural/Non-Urban — A Strategic Plan, included in the Scheme, showed an arterial road (not yet constructed) traversing the land — In 1998 the Planning Scheme was amended by the substitution of a new Strategic Plan — The land was identified as Special/Facilities/Public Purposes and, in part, as Special Protection Area — Part of the land (Lots 1 and 2) was resumed for “road purposes” (Lot 1) and “sewerage treatment plant purposes” (Lot 2) — The respondent made a claim for compensation under the Acquisition of Land Act 1967 (Qld) — The Land Court ordered compensation of $5,992,098 — Both the Land Court and the Land Appeal Court (by majority) applied the Pointe Gourde principle in reverse when assessing compensation, meaning that compensation was to be assessed as if the Council’s planning scheme did not exist at the date of the Council’s acquisition of the land — On Appeal — The right to claim compensation for injurious affection is subsumed by the right to claim compensation for compulsory acquisition and so does not survive — The right to claim compensation for injurious affection has been lost because it has been replaced by the right to claim compensation for the compulsory acquisition (under the ALA), then the common law Pointe Gourde principle can and should apply — The value of the estate or interest on the date on which the land was taken is the value, ignoring the increase or decrease in value caused by the scheme which gave rise to the compulsory acquisition — As no compensation for injurious affection had been paid in this case, the Pointe Gourde principle in reverse applied — The amount of compensation was assessed without regard to the diminution in value caused by the scheme underlying the compulsory acquisition — HELD: Application for leave to appeal granted, Appeal dismissed with costs, Decision of the Land Appeal Court affirmed.

Parry v Woolworths Limited [2009] QCA 026 McMurdo P Fraser JA White AJA 20/02/2009

Appeal from the District Court — General Civil Appeal — Workers’ Compensation — The appellant was a butcher employed by the respondent who sustained a lower back injury whilst assisting another employee to lift a tub of meat in the course of his employment in November 2003 — The trial judge dismissed the appellant’s claim for damages — The trial judge assessed the quantum of damages, should the appellant have recovered damages, as a notional award of $82,327.73 which the trial judge halved to take into account his finding of contributory negligence of the appellant — On Appeal — Respondent conceded that the trial judge had erred in finding that the appellant was guilty of contributory negligence and in reducing the notional award on that account — There was no dispute as to the circumstances in which the appellant was injured — An expert report by an ergonimist and safety consultant was tendered at trial — The expert who had prepared the report was not required for cross-examination — Statutory duty to the appellant had been imposed under s 28 of the Workplace Health and Safety Act 1995 (Qld) — The expert’s report did support the view that the lift involved a risk of injury — That the risk might have been managed in the various ways described in the report and the Manual Tasks Advisory Standard 2000, as outlined in the report, served only to emphasise that there was a risk — Medical witnesses did not give evidence that the lift did not pose a risk of injury to the appellant — The onus shifted to the respondent of proving that it had discharged its duty of care pursuant to the Act — The respondent made no attempt to discharge this onus — The appellant did not normally work in the room where he complied with the request of his supervisor to participate in the lift — The respondent did not adduce evidence or put to the appellant that he received any training of the kind as had been given to his co-worker — The respondent breached the statutory duty it owed to the appellant under the Act — In addition the appellant challenged the quantum of damages recoverable — Five doctors gave evidence at the trial — Four doctors final reports were generally opposed to the appellant’s contention that he sustained his significant back injury, a prolapsed disc injury, in the November incident — The doctors attributed greater significance to the appellant’s history of earlier back and leg pain related to earlier incidents, which was accepted by the trial judge — HELD: Appeal allowed, Order of the District Court set aside, Judgment for the plaintiff for the amount assessed by the trial judge of $82,327.73, Leave granted for submissions as to costs of the trial and appeal.

Gardner Snr v Director of Public Prosecutions (Qld) [2009] QCA 029 Holmes JA Muir JA Fraser JA 24/02/2009

Appeal from the Supreme Court, Trial Division — Bail Application — The appellant was refused bail for offences including production, possession and trafficking in cannabis sativa, unlawful possession of a concealable handgun and possession of $10,000 reasonably being suspected of being the proceeds of an offence — Subject offences relate to a cannabis plantation on a property near Inglewood that was purchased by the appellant’s former wife — On 30 June 2008 police went to the property where they located cannabis growing in five plots, each in excess of 700 square metres — On 1 July 2008 police returned to the residence on the property and were met by the appellant — Searching the residence police located a loaded automatic handgun at the top of a bathroom cupboard concealed under a towel — The appellant declined to be interviewed — Police located a document in the appellant’s handwriting detailing his observations of the police search the previous evening, including a statement that the appellant had watched police call into a neighbouring property more than one kilometre away from the residence — The property would only have been visible at the time by use of a night vision device — Other items located in the residence or in one of the camps near the cannabis plots included body shackles, leg shackles, handcuffs, extendable batons, military night vision goggles, and in excess of 10,000 rounds of live ammunition — Three more cannabis plots were located later — The street value of the dried cannabis material was estimated at $28,000,000 and the value of the live cannabis plants if harvested, dried, packaged and sold was estimated to be in the order of $80,000,000 — When purchasing water pumps, sprinkler heads, large quantities of poly piping and other plant and equipment that had been found on the property the appellant used an alias and always paid in cash — The primary judge refused bail and in his reasons stated “I am not satisfied…that the applicant is an acceptable risk of attending as required if granted bail at this time” — On Appeal — Considered unlikely that his Honour being aware that the appellant was not in a show cause situation, acted on the basis that the appellant bore the onus of proof — However, as a general rule, one must look to the words used by a judge in his or her reasons in order to ascertain the basis for the judge’s decision, particularly where there is no ambiguity of language — His Honour has placed the onus of proof erroneously on the appellant — Strong prosecution case that the appellant was centrally involved in the production, packaging and distribution of cannabis on a heroic scale — The maximum penalties for production of and trafficking in cannabis are 20 years — Evidence that a great deal of money likely to have been derived from the property is unaccounted for suggest that the existence of a substantial risk that the appellant will fail to appear — That conclusion is not diminished by the evidence of the other items located on the property — Evidence of a loaded handgun give rise to a concern that the appellant was prepared to resort to violence to protect his interests — There is unlikely to be an innocent explanation for the existence of the arsenal on the property and if the evidence of his former wife is to be believed the appellant made death threats, threatened violence and engaged in violent acts — That a trial of the charges may not take place for about two years is a matter of considerable concern however that and other matters relied on by the appellant’s counsel are insufficient to warrant an exercise of discretion in the appellant’s favour — HELD: Appeal dismissed, Application for bail refused.

Jackson v Redcliffe City Council & Anor [2009] QCA 038 de Jersey CJ Fraser JA Chesterman JA 27/02/2009

Appeal from the District Court — General Civil Appeal — Limitation of Actions – The trial judge gave judgment to the respondents because of his conclusion that the claim had no prospect of success, because it was time-barred — The trial judge entered judgment summarily for the respondents and ordered the appellant to pay the respondents’ costs — The trial judge stated that the appellant’s material was persuasive that, in wet weather, her property was inundated and “abused by stormwater run-off from up-hill properties when it rained the bottom of the yard turned boggy” (from the pleadings) — The District Court Judge identified an applicable six year limitation period under the Limitation of Actions Act 1974 (Qld) being the period applicable to this kind of action — The Judge considered that the requisite damage was sustained at the very latest, by June or July 1999, so that the proceeding commenced in December 2007 was out of time — On Appeal — The appellant’s claim is based in alleged nuisance, negligence and breach of statutory duty, for which a six year limitation period applies — The appellant is complaining of recurrent damage, occurring every time it rains — Recovery would appear to be barred in respect of the period prior to December 2001, however a claim could be mounted in respect of any actionable losses thereafter, up to December 2007 when the proceeding was commenced — Where damage is continuing or recurrent, as here, a new cause of action arises from day to day, or upon the occurrence of fresh damage — The trial judge was plainly right to suggest that the amended statement of claim could not survive because of its manifest deficiencies, and should be struck out under Rule 171 of the Uniform Civil Procedure Rules 1999 (Qld) — The point that resolves this appeal was not raised before the trial judge — The appellant should have been given the opportunity to re-plead, desirably with assistance from QPILCH or other pro-bono source — HELD: Appeal allowed, Judgment and orders of the District Court set aside, The amended statement of claim is struck out with the appellant given 45 days to file a further amended statement of claim and amended claim, no orders as to costs

CRIMINAL APPEALS

R v Metius [2009] QCA 003 McMurdo P Fraser JA McMeekin J 6/02/2009

Appeal against Conviction & Sentence from the Supreme Court, Trial Division — The appellant was convicted in November 2007 of murdering her infant son — The killing of the child was recorded on video tape at the Mater Children’s Hospital — The 12 person jury initially retired to consider its verdict at 12.05 pm on 27 November 2007 — At 8.35pm the court reconvened in the absence of the jury with the judge explaining that the bailiff had come to see the judge because of the behaviour of one of the jurors and that because of the information that the bailiff had provided, the Judge “might well form the opinion that she’s incapable of continuing to act as a juror” — The bailiff gave evidence about his knowledge of the issue — At 1.00 pm that day juror number 12 declined or refused to enter the dining room with the other 11 jurors, and felt as if she had been bullied throughout her time serving on that jury — Before the court reconvened the bailiff heard very raised voices from the jury room — Juror number 12 told the bailiff that she wanted to leave, wanted to go to a doctor and did not want to serve on the jury anymore — Juror number 12 appeared agitated — The bailiff had not observed anything that might constitute bullying of juror number 12 by her fellow jurors — The bailiff later stated that juror number 12 had informed him that “she felt uneasy and threatened by the other 11 jurors. She felt unsafe with them.” — The bailiff gave evidence that he did not notice anything about the other juror’s behaviour to suggest that she was unsafe — The judge suggested to counsel that the appropriate course was to discharge juror number 12 — Both defence counsel and the prosecutor agreed with that suggestion — The trial judge formally made an order the next day in the absence of the jury that the trial continue with the remaining jurors — Defence counsel did not ask that the jury be discharged so that the appellant could be re-tried before a jury of 12 — On Appeal — A reading of the transcript makes abundantly clear that it was because juror number 12’s statement to the bailiff (that she felt uneasy and unsafe with the other jurors) made it appear the juror may be overborne by the other jurors and not be able to impartially decide the case — Her discharge was authorised by s 56 of the Jury Act 1995 (Qld) — Although unstated the primary reason for allowing the trial to continue with 11 jurors can be inferred — It was that the trial, which had continued over six court days, during which 18 witnesses had given evidence, including three psychiatrists and the appellant, was in its final stages — Despite the paucity of reasons for the order directing the trial to continue with the remaining 11 jurors, it can be inferred from the transcript that the judge was cognisant of the relevant matters in exercising the wide discretion under s 57 of the Act — No submissions were made in support of the application for leave to appeal against sentence — HELD: Appeal against conviction dismissed, Application for leave to appeal against sentence dismissed.

R v Thaiday [2009] QCA 027 Keane JA Muir JA P Lyons J 24/02/2009

Appeal against Conviction from the District Court — In September 2008 the appellant was convicted upon the verdict of a jury of one count of indecent dealing with a girl under the age of 14 years and one count of rape — Sentenced to a term of imprisonment — The Crown case was that the offences had been committed between January 1984 and March 1985 — The complainant was about 10 years old at the time the offences occurred and 35 when she gave evidence at trial — The complainant gave evidence that the offences occurred in her bedroom at a party hosted by her parents at their residence — The complainant said that she was too scared to tell her parents because she was afraid that she would get a beating from her step-father — The complainant stated that the first person she told of this incident was L, her cousin, when the complainant may have been 13 or 14 — She said that at this time she was at L’s house at Kirwan — The complainant gave evidence that in 1993 she told her mother and step-father the appellant had “sexually abused (her) when (she) was a little girl — The step-father called the police but the complainant said that she was unable to tell her story and so no formal complaint was made — The first formal complaint was made to the authorities in late 2005 and the appellant was not informed of the charge against him until January 2007 — L gave evidence that the complainant had told her that when she was “living in …that she was sleeping one night and someone had entered her room…and just touched her underneath the sheets in her private parts.” — According to L this disclosure was made to her at a house in Garbutt where the complainant was living — The complainant’s mother gave evidence that in 1993 the complainant told her and her husband that the appellant had “assaulted” her — The complainant’s step-father gave evidence that the complainant said “something about being assaulted” by the appellant — The only evidence against the appellant was that given by the complainant — The learned trial judge gave clear and thorough directions to the jury that ensured that the jury were fully alert to the problem which L’s evidence posed for the Crown case — On Appeal — The complainant’s evidence related to events which occurred more than 20 years before she gave evidence — The complainant’s account at trial of the incident diverged seriously from L’s evidence of the complainant’s account to her — L was called to give evidence by the Crown; no doubt was cast upon her honesty by any party at trial — The vagueness of the complainant’s evidence as to when the offences were said to have occurred, the lapse of so many years since the occurrence of the events complained of, the absence of any real attempt on the part of the complainant to explain the extraordinary delay, and, most importantly, the serious discrepancies between the evidence of the complainant and the evidence of L mean that there is the significant possibility that the appellant has been wrongly convicted — HELD: Appeal allowed, Conviction quashed and verdict of “not guilty” entered.

R v Eustance [2009] QCA 028 de Jersey CJ Muir JA Atkinson J 24/02/2009

Appeal against Conviction from the District Court — The appellant was convicted of wilfully and unlawfully damaging a glass door and of wilfully and unlawfully setting fire to a house — He was sentenced to a term of four years imprisonment for the arson offence and to a concurrent term of imprisonment of two months for the other offence — The appellant’s father gave evidence that he owned the house that was burnt down — The relationship between father and son was reasonable except when the appellant was intoxicated, as he frequently was, when they would argue — The appellant’s father gave evidence that the appellant threatened to burn down the house if he was not left part of the house or the estate in his father’s will — The father conceded that the appellant did not know what was in his will — On 26 July 2007 the father obtained a protection order to which the appellant consented requiring the appellant to stay away from the house — After the making of the order police officers escorted the appellant from the house — After attending the fire one police officer gave evidence that the appellant “did appear intoxicated to me”, another gave evidence that she smelt alcohol on the appellant and noticed signs of intoxication — Another police officer gave evidence that “(the appellant) seemed to be intoxicated by something; his eyes were glazed, he couldn’t keep a straight sentence at any stage.” — The appellant informed another police officer, in the course of an interview, that on the day of the fire he had consumed two bottles of spirits, half a carton of beer, some bourbon and had a “couple of cones of marijuana.” — Defence counsel sought a direction that intoxication be taken into account in determining whether the appellant’s conduct was such as to satisfy the elements of the offence — The learned crown prosecutor also submitted that such a direction be given, nevertheless the primary judge refused to give such a direction — On Appeal — Counsel for the respondent accepted, at least as a result of the way the prosecution case was presented, an intention to “cause a specific result” was an element of the offence and was an issue in the trial — Counsel for the respondent accepted that the jury should have been directed that they could have regard to whatever state of intoxication “they found the appellant had for the purpose of ascertaining whether that intention in fact existed.” — The Court of Appeal is unable to conclude beyond reasonable doubt that the appellant, in his inebriated and drug-affected state, foresaw the likely consequences of his conduct — HELD: Appeal allowed, Conviction for the offence of wilfully and unlawfully setting fire to a house set aside and there be a retrial on that count.

R v Kong [2009] QCA 034 Holmes JA Fraser JA McMurdo J 27/02/2009

Appeal against Conviction from the District Court — The appellant was convicted by a jury of one count of dangerously operating a vehicle causing grievous bodily harm — The charge arose from a collision in January 2005 between two motorcycles — The morning of the collision was clear and dry and the appellant was first in a group of five or six motorcyclists, including a Jason Reddy, a witness who was declared hostile — In the lead up to the collision the appellant’s motorcycle was travelling up a hill around a left curve where the speed limit was 100 kilometres per hour — A forensic crash investigator stated that there was no way of judging from the marks on the road the speed at which either motorcycle was travelling — Under cross-examination the victim, Mr Fleming, agreed that he had omitted in his police statement that the other rider was on the wrong side of the road — The prosecutor at trial informed the court that he was not prepared to call Mr Reddy as a witness — The prosecutor seemed to be complaining that a person reading the statement of Mr Reddy where he stated that “On that Sunday I rode my motorcycle to the Dayboro Hotel” would infer that the motorcycle Mr Reddy said he had ridden on the day of the collision was the Kawasaki that he said he owned as at the statment’s date — Mr Reddy had informed the prosecutor in conference that he was riding a Yamaha on the day of the collision not a Kawasaki — The prosecutor said Mr Reddy had an “attitude” which led him to believe that he was not a witness of truth — A voir dire took place and Mr Reddy was declared hostile by the trial judge — On Appeal — A declaration that a witness is hostile should be made only where the witness demonstrates an unwillingness to tell the truth for the advancement of justice in answer to non-leading questions — The learned judge had plainly not reached the view that Mr Reddy was not desirous of telling the truth, rather she seemed to have taken the view that because of what she perceived as his difficult personality and prickly demeanour, it would be advantageous for him to be cross-examined — In consequence of the ruling Mr Reddy was aggressively cross-examined by the prosecutor extending to eliciting the fact that he had previous traffic convictions — The prosecutor at trial made what seem to have been most intemperate and unfair comments in his address, referring to Mr Reddy as a “bald-faced liar” who had treated the Bible as if it were “a stack of comic books.” — At no stage had Mr Reddy said anything which was demonstrated as untrue — This was an erroneous ruling which has caused a miscarriage of justice — A second reason exists for setting aside the verdict — Counsel for the appellant at trial reminded the jury that Mr Fleming had a personal injuries claim for $300,000 and stated “That means he has a motive not to be frank with this Court.” — In her summing up the learned judge commented that “…you should not – and I instruct you in the strongest terms to take that into account today. It’s unfair and wrong as a matter of law.” — The suggestion to the jury that it could not take into account Mr Fleming’s interest in a personal injuries action was not, in any way improper, let alone wrong as a matter of law — Counsel was entitled to raise the possibility for the jury’s consideration — Given the importance of Mr Fleming’s credit in the trial the direction of the jury that it should disregard counsel’s submissions provides further reason for concluding that there was a miscarriage of justice — HELD: Appeal allowed, Conviction set aside and a new trial ordered.