Court of Appeal Judgment Summary Notes

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CIVIL APPEALS

Moffatt Property Development Group P/L v Hebron Park P/L [2009] QCA 060 McMurdo P Keane JA Atkinson J 20/03/2009

General Civil Appeal from the Supreme Court, Trial Division — The appellant (Hebron) is the registered proprietor of 20 acres of rural residential land on the Sunshine Coast — The respondent is a property developer (Moffatt) — Negotiations for the sale of the land commenced between the parties — Further negotiation elicited counter-offers from Hebron — A director of Moffatt sent a letter dated 8 April 2008 with the words “unconditional offer” containing the ACN of Moffatt was sent to a Mr Muldrew (a real estate agent) — The letter was subsequently signed by a Mrs Edwards (the sole director of Hebron) on behalf of Hebron on 9 April — At trial the learned judge determined the dispute in Moffatt’s favour and declared that the letter dated 8 April 2008 and signed by both parties constituted a valid and binding agreement with respect to the sale of the land to Moffatt — On Appeal — The difficulty with the argument advanced by Hebron, and which was a fatal difficulty, is that the offer which Mrs Edwards accepted in an unqualified way by her signature on behalf of Hebron was expressed to be an “unconditional” offer — The unqualified acceptance of the unconditional offer gave rise to an agreement which was explicitly unconditional — Moffatt was identified unequivocally by its ACN — This was not a case of a sale of a residence to a consumer but of an acquisition of stock by a developer — Once it was accepted that the parties intended to be legally bound by their exchange of correspondence, the facilitation of the mechanical details of the implementation of their agreement could be supplied by implied terms and considerations of reasonableness which obviated the need for further express agreement — HELD: Appeal dismissed with costs.

Drew v Makita (Australia) P/L [2009] QCA 066 Holmes JA Muir JA Daubney J 24/03/2009

Appeal from the District Court — Torts — Respondent claimed damages for injuries sustained by him when his left hand was severed by a circular saw — Primary judge found that the circular saw had a defect in it within the meaning of s 75AC of the Trade Practices Act 1974 (Cth) and that the injuries resulted from the negligence of the appellant — Primary judge awarded judgment against the appellant in the sum of $194,454 — Primary judge: set out a brief resume of the evidence of each lay witness; referred to parts of the experts’ oral and written evidence; discussed relevant principles of law; and summarised the respective submissions of counsel for the parties — On Appeal — Primary judge made no reference to and did not discuss: any inconsistencies in the evidence of any witness; the reliability, weaknesses or strengths of the evidence of any witness; whether the evidence of one expert was to be preferred over the other and if so, why — The existence of a defect in the circular saw which enabled the safety guard to stick or jam in the open did not lead, necessarily, to a finding of liability — Necessary to establish that the safety guard was stuck in the open position at the time of the accident — Implicit in the primary judge’s finding that the safety guard was stuck and unable to retract at the time the respondent’s injury occurred — The precise way the accident occurred is unknown — Not all matters were discussed by the primary judge in his reasons; but in fairness to him, some of them were not drawn to his attention — Difficulties and inconsistencies in the evidence were not explained nor resolved by the primary judge — As far as one can tell from the reasons, his Honour’s conclusion about how the accident happened may be derived from intuition as much as from, or in lieu of, any logical reasoning process — Necessary for the primary judge to resolve significant evidentiary conflicts or inconsistencies — It was desirable that he make findings on credibility for the benefit of an appellate court in the event of an appeal and to obtain the benefit to be gained by submitting himself to the intellectual discipline thereby imposed — No ground of the notice of appeal challenged quantum — HELD: Appeal allowed, Orders of primary judge set aside, New trial on all issues other than quantum, Should the respondent be successful in establishing liability on the part of the appellant on the new trial, damages be as assessed by the primary judge in the original trial, costs of the first trial abide in the result of the new trial, respondent pay the costs of the appeal.

FY & Anor v Department of Child Safety [2009] QCA 067 Keane JA Muir JA Daubney J 24/03/2009

Application for Leave to Appeal from the District Court — In June 2008 the Ipswich Childrens Court constituted by a Magistrate decided pursuant to s 67 of the Child Protection Act 1999 (Qld) (CPA) that temporary custody of six children who had previously been in the custody of the applicants should be given to the Chief Executive of the Department of Child Safety — Proceedings had been brought because of a concern the children were being physically abused by the applicants — Two of the children were said to be natural children of the applicants with the other four children coming from Samoa and having been adopted by the applicants in accordance with Samoan law — The applicants appealed this decision to the Childrens Court which dismissed the appeal — On Appeal — The decision of the Childrens Court judge was a decision by that court as the “appellate court” for the purposes of s 117 of the CPA — No appeal from the Childrens Court constituted by a Judge, which is itself sitting as the appellate court, lies to the Supreme Court of Queensland, Court of Appeal division as of right — Unnecessary to determine whether an appeal lies to the Court of Appeal, even by leave, from a decision of the Childrens Court as the appellate court, however there is much to be said in favour of this view — The only orders sought by the applicants on their proposed appeal was that it be “ordered” that the applicants are “parents” within the meaning of the CPA — No order sought from the Court of Appeal in relation to the disposition of the custody of any of the children — The proposed appeal, even if successful, would not result in any variation to the orders made below — The Court of Appeal should not accept invitations to deliver hypothetical opinions about the reasons for decisions of inferior courts with such a role not in accordance with the modern understanding of the judicial function — Argument of guardianship of the children and standing in relation to the adopted children had not been considered by the courts below — Important to emphasise that it is of the first importance that the child protection proceedings be resolved as soon as possible in the interests of the children — Interlocutory skirmishing in which the parties have thus far been engaged has been remarkable for the proliferation of half-baked arguments the consequences of which have not been thought through — It is hoped that all parties will bring a more responsible focus to bear on the further prosecution of these proceedings — HELD: Notice of Appeal struck out, Application refused.

WorkCover Queensland v AMACA P/L & Anor [2009] QCA 072 de Jersey CJ McMurdo P Muir JA 27/03/2009

Case Stated from the Supreme Court, Trial Division — Case principally concerned with the proper construction of s 272(7) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (now numbered 207B(7)) — Mr Thomson contracted mesothelioma in the course of his employment in Queensland — He was a worker under the relevant legislation — In April 2006 he received $340,000 in compensation for which he was entitled under the statutory scheme — He died in June 2006 in consequence of the mesothelioma — In June 2007 WorkCover commenced a proceeding against the manufacturers and suppliers of the asbestos to which Mr Thomson had been exposed (AMACA and Seltsam) to recover the amount of the compensation paid to Mr Thomson relying on s 272(7) of the Act — The Questions (in brief): 1. Whether upon the proper construction of s 272(7) of the WCRA the damages referred to in the expression “liability for damages” are to be assessed at the date of trial or of judgment or some other dates? Answer: Damages are to be assessed at the date of judgment — Substantial authority that under materially similar legislation in other States the assessment of damages must be made at the date of judgment — Questions 2 and 3. Whether s 207B(7) posits the apportionment of each respondent’s respective liability, so that the extent of WorkCover’s indemnity enforceable against each is limited to that respondent’s liability? Answers: 2. No and 3. On the assumption to be made, the extracted words refer to the respective respondent’s liability for the whole of the damages. — On the assumption the Court of Appeal was invited to adopt, the respondents were respectively liable for the whole of the loss to Mr Thomson, their respective negligence having materially contributed to it — The “liability” of each, in terms of the sub-section, is for the whole — Had the legislature intended that a respondent’s liability could be assessed at less than 100 per cent of an injured party’s loss then it could be expected to have said so clearly — Question 4. Is the quantum of the indemnity the plaintiff is entitled to recover reduce by the operation of s 66 of the Succession Act 1981 (Qld) if the worker dies after compensation is paid and before the trial of the plaintiff’s action to recover the indemnity? Answer: Yes. The section treats the existence of the indemnity, and the calculation of the damages to determine how far it goes, as two quite separate matters — It is the survival of the worker’s cause of action which the legislation ensures — It is the assessment of damages under that cause of action which delineates the extent of the indemnity — Question 5. By whom should the costs of the Costs Stated be paid? Answer: The plaintiff, WorkCover Queensland should pay three-quarters of the respondents’ costs — In view of the respondents’ level of success of this determination.

Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 075 Keane JA Fraser JA Daubney J 3/04/2009

General Civil Appeal from the Supreme Court, Trial Division — Restitution — The respondent’s predecessor in title was a contractor engaged in the construction of an ammonium nitrate plant at Moura — The respondent engaged the appellant as its subcontractor to undertake the construction of earthworks and concrete works for the project — In March 2001 the appellant commenced proceedings against the respondent claiming moneys unpaid for work done under the contract — The respondent made a counterclaim for the recovery of some money paid by it to the appellant — The trial judge consolidated the judgments on claim and counterclaim and, including interest, gave judgment for the respondent in the sum of $15,216,484.16 — Described by Senior Counsel on appeal described the outcome of the appellant having to disgorge payments made for work actually performed for the respondent as “scandalous” — Court of Appeal would not disagree with this description however this epithet is not warranted by any aspect of the learned trial judge’s determination of the issues of law or fact tendered to him for decision by the parties — On Appeal — Common ground that much of the work which the appellant carried out was building work under s 42 of the Building Services Authority Act 1991 (Qld) (BSAA) — It is accepted that, contrary to the requirements of the Act, and in breach of terms of the subcontract, the appellant was not licensed to carry out building work under the Act — The trial judge remarked upon the dismal attempt made by the parties to address in the evidence the reasonable cost of the items of building work for which remuneration was claimed — Not argued on appeal that any of these observations were affected by error of fact or law — The entitlement to the unlicensed builder to recover or retain moneys paid to it is limited to the amount of reasonable remuneration claimed in conformity with the requirements of s 42(4) of the BSAA — The onus was on the appellant to make good a claim for an amount of reasonable remuneration under the BSAA — Absent such proof the respondent’s counterclaim was bound to succeed — The appellant failed to demonstrate its entitlement for reasonable remuneration when it had the opportunity to do so — The appellant’s argument involves a departure from the case made by the appellant at trial — Three contentions advanced by the appellant were not litigated at trial — That result is a consequence of its own failure to establish the case it determined to litigate at the trial — HELD: Appeal dismissed with costs.

Katsikalis v Body Corporate for “The Centre” [2009] QCA 077 McMurdo P Chesterman JA Douglas J 3/04/2009

Application from the District Court — Application for Leave to Appeal — Real Property — Strata and Related Titles and Occupancy — Common Property — Dispute related to a group of shops in an arcade in Surfers Paradise — Applicant’s shop, lot 6 in a building plan, was adjacent to lot 5 — Lot 5 carried out works to extend the ceiling bulkhead of his shop to align with the frontages of lot 6 and lot 4 which flanked lot 5 — The design of these shops was such that each odd-numbered lot was recessed 57 cms from its neighbours — The extension of the bulkhead over the entrance of the shop meant that the bulkhead occupied part of the common property of the body corporate — On 10 November 2005 at its annual general meeting the body corporate passed what was described as a special resolution that would allow such modification with approval from the committee — A subsequent committee resolution was made in respect of lot 5 granting permission for the extension — The resolution did not make clear which statutory power was being exercised — No money was offered for that use of the common property — The resolution could be construed as the grant of an indefinite licence to the owner of lot 5 to use that part of the common property however under s 91(1)(a) of the Body Corporate and Community Management (Commercial Module) Regulation 1997 (Qld) such a resolution should have been passed without dissent — Four lot owners voted against it — On Appeal — The approvals were given retrospectively and would allow the extensions to the bulkheads over the common property to be enjoyed exclusively and indefinitely by the lot owner — This amounted to a disposition of that property at least by the grant of an exclusive licence to it for some indefinite period — The resolution purporting to authorise the extension of bulkheads was a disposition “otherwise” for the purposes of s 91(2)(a) of the regulation and was not passed without dissent, and was therefore invalid — Court of Appeal expressed concern about the delay between the filing of the appeal in the District Court at Southport on 17 March 2006 and the hearing of the appeal two years and five months later on 13 August 2008 — HELD: Application for leave to appeal granted, Appeal allowed, Order of the District Court set aside, Matter remitted to the adjudicator for determination in accordance with these reasons and costs.

Hare v Mt Isa Mines Ltd & Ors [2009] QCA 091 Holmes JA Fraser JA Douglas J 17/04/2009

Application from the District Court — Application for Leave to Appeal — Practice and Procedure — The respondent (a child of six) wished to bring a personal injuries action against the appellants — The respondent’s mother, a Ms Hare, gave part 1 of the notice of claim on her behalf — The respondent at first instance obtained a declaration that the notice of claim served on the appellants pursuant to s 9 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) was a complying part 1 notice of claim under PIPA — The learned judge found that the part 1 notice of claim fulfilled the fundamental purpose of providing sufficient information to a respondent about a proposed claim — On Appeal — The learned judge impermissibly recast the requirements of s 3(3) and s 3(4) of the Personal Injuries Proceedings Regulation 2002 (Qld) (PIPR) so as to substitute the requirement of “details of how the incident happened”, a different requirement for information about “the nature of the incident”. His Honour did not address the appellants’ argument that “details of how the incident happened” were not provided — Nor did the learned judge offer any reasons for his finding that the respondent’s notice identified “why the [appellants were] alleged to be responsible” and he simply did not deal with the appellant’s complaint that the respondent had wrongly answered Q 24 in the negative in response to the query of whether the respondent had suffered any injuries, illnesses or disabilities which might affect the extent of the disabilities to which the claim related or the amount of damages and had not complied with the requirement in s 3(6)(d) PIPR — The failure to give adequate reasons means, in this case, that the appellants are left with a justifiable sense of grievance — The appellant’s argument that the notice of claim did not give details of “how the incident happened” must be accepted — The answer at Q 9 explained what the “incident” was: the absorption of toxins at various locations; but it did not explain how that had happened — The appellant’s complaint that the respondent failed to give her reasons for attributing responsibility to the appellants is similarly justified — No link was drawn between the appellants’ alleged “contamination” and the respondent’s absorption of toxins or the locations at which her exposure was said to have occurred — In relation to the answer to Q 24 when the matter was before the judge at first instance there was uncontradicted evidence showing the relevance of the premature birth, hence the answer to Q 24 was then established to be wrong and the notice non-compliant — It is the state of the document at the time it is delivered that is relevant — Non-compliance cannot thereafter be altered although it can be remedied — To remedy her non-compliance in respect of the answers to Q 9 and Q 18 it was incumbent on the respondent to articulate to the appellants how she ingested the toxins and why she attributed responsibility to them — HELD: Application for leave to appeal granted; Appeal allowed; Declaration and costs order at first instance set aside; Application for stay dismissed with written submissions to be made on costs.

Virgtel Ltd & Anor v Zabusky & Ors [2009] QCA 092 Keane JA Fraser JA Wilson J 17/04/2009

Application from the Supreme Court, Trial Division — Application to Strike Out — Procedure under Rules of Court — Judgment and Orders — Relief Against — Virgtel and another are respondents to an appeal by Zabusky and others against a decision of the learned primary judge, Daubney J — Daubney J refused to stay several orders for costs made against Zabusky by de Jersey CJ and McMurdo J in proceedings by Virgtel against Zabusky — The principal proceedings arise out of the alleged wrongful diversion to Zabusky of payments which should have been made to Virgtel — Zabusky had sought a stay of the orders for costs until the determination of the principal proceedings but this had been refused by Daubney J — No appeal has been made by Zabusky against any of the orders for costs which have been made in the principal proceedings — Virgtel applied to the Court of Appeal to have Zabusky’s appeal against the refusal of the stay to be struck out or dismissed as incompetent on the basis that leave to appeal from Daubney J had not been obtained — On Appeal — A determination of Zabusky’s appeal by reference to the considerations relevant to an application for a stay of execution or the inherent jurisdiction of the court would not involve this Court in a review of the discretionary considerations which led de Jersey CJ and McMurdo J to make the orders for costs in favour of Virgtel in the principal proceedings — The only connection between the refusal of the stay and “an order as to costs” is that, historically, the liability the immediate enforcement of which Zabusky sought to stay arose pursuant to such an order but that connection is too tenuous and remote to characterise the refusal of the stay as an “order as to costs” — After the hearing of Virgtel’s application, Virgtel forwarded to the Court a further submission for which leave had not been sought or granted — The Court declined to receive this further submission — HELD: Application dismissed with costs.

CRIMINAL APPEALS

R v Hannigan [2009] QCA 040 de Jersey CJ Chesterman JA Atkinson J 3/03/2009

Sentence Application from the District Court — In November 2008 the applicant pleaded guilty to dangerously operating a motor vehicle when adversely affected by an intoxicating substance, and also to a number of summary offences all committed on an earlier date — The applicant was severely intoxicated, with three police officers required to get him into a police van — The applicant has an appalling history of traffic offences and was sentenced to a period of 18 months imprisonment suspended after serving six months with an operational period of two years — As well he was disqualified from holding or obtaining a driver’s licence for three years and convictions were recorded on each of the summary offences — The applicant accepted that the sentence was consistent with penalties imposed for similar offending and was within the appropriate range — On Appeal — The case for leave to appeal against sentence was on the basis that it was excessive if one had regard to evidence that he was assaulted by the arresting constable and that the assault and the injuries inflicted on the applicant amounted to “extra-curial punishment” which should have been taken into account and lead to a reduction in sentence — No evidence of the assault was put before the sentencing judge as the applicant had no knowledge or recollection of the event — A witness provided an affidavit that was read on the application and deposed that she “witnessed the police officer vigorously punching the face of the person in the utility and swearing at him…several times” — The arresting officer did not respond to the affidavit — The sentence imposed on the applicant should not be disturbed with an assumption that the constable punched the applicant several times, not to prevent his escape, or to overcome resistance to arrest, but in response to the manner in which the applicant had driven — The injuries to the applicant were minor, not serious, and he did not know he had been hit — The applicant cannot be regarded as having undergone punishment at the hand of the police officer when he himself was oblivious to the castigation and its aftermath — The punishment imposed on the applicant was apt to persuade him of the seriousness of his behaviour and to provide a sound incentive to reform — Excessive force, or violence, by police officers on persons they apprehend is unacceptable and is to be discouraged by all legitimate means — The proper responses to such misconduct include disciplinary action by the Police Service to whom complaint is made; a civil action for damages for assault; a prosecution for assault. — To reduce the sentence imposed on the applicant would not work any sanction on the arresting constable and may remove a deterrent against re-offending and hence increase the risk to the public that he might re-offend — HELD: Application for leave to appeal against sentence refused.

R v Bedeau [2009] QCA 043 McMurdo P Muir JA Atkinson J 6/03/2009

Sentence Application from the District Court — Applicant convicted after a trial of two counts of using the internet to procure a child to engage in a sexual act and one count of using the internet to expose a child to an indecent act — In January a police officer using the pseudonym “Gemma Sterling” made contact with the applicant informing him that she was 14, female and lived in Brisbane — The applicant commenced a lurid sexual discourse in the course of which he purported to give instructions to “Gemma” on masturbatory techniques and arranged to meet her that night for the purposes of engaging in sexual activity — The meeting did not take place — The applicant was sentenced on each count to an 18 month term of imprisonment with all terms ordered to be served concurrently — No suspension was ordered — On Appeal — Whether the primary judge took into account the fact that the conversation was initiated by the police officer was unknown — The evidence was before her and the applicant’s counsel made no submissions in that regard — The applicant’s contention that the primary judge erred in failing to take into account a matter not relied on by the applicant’s counsel, merely because it was not mentioned in the sentencing remarks should be rejected — However the relevance of the fact that the unlawful conduct in a conversation was initiated by a police officer was accepted — Also of relevance was the applicant’s role as his ill mother’s carer and her financial dependence on him — Other relevant considerations were the applicant’s work history, lack of relevant criminal history and the fact that he did not, in fact, communicate with a 14 year old girl — The failure to set a parole release date or to suspend the sentences after six months resulted in manifestly excessive sentences — HELD: Application for leave allowed, Appeal allowed, Each sentence imposed at first instance be suspended after six months with an operational period of three years.

R v Phillips [2009] QCA 057 Holmes JA White AJA McMurdo J 20/03/2009

Appeal against Conviction & Sentence from the District Court — The appellant went to trial on four counts of rape and was convicted of one count of rape, in respect of two others he was convicted of the lesser alternative of unlawful carnal knowledge; and he was acquitted absolutely on the remaining count — The complainant was a 13 year old girl who was a friend of the complainant’s stepbrother — The appellant often stayed at the complainant’s home, with the four offences said to have occurred on four such overnight stays — On Appeal — Evidence that once the prosecutor had concluded her closing address the trial judge adjourned the court, that the associate had both thumbs raised in a ‘thumbs up’ gesture, and mouthed words to the effect, “That was awesome” — It was common ground that a juror or jurors might have seen the associate’s gesture and mouthed words — Although unaware of what had occurred, the directions of the trial judge were apt to remind the jury of the need to act only on the evidence, disregarding the views of others — This ground of appeal fails — Nothing in the evidence explains why the jury, at the least, considered that the Crown had not ruled out mistaken belief in consent in relation to counts 1 and 3 (unlawful carnal knowledge), despite the complainant’s evidence of having offered physical resistance to the appellant, yet convicted of rape on count 4, in which there was no equivalent evidence of any resistance — Verdict on count 4 (rape) was unreasonable — Significant that there had been no Attorney-General’s appeal against the sentences of two years imprisonment on the other unlawful carnal knowledge counts — To impose a greater sentence on this count would be, in effect, to treat the sentences on those counts as inadequate without any appeal having been heard in respect of them — HELD: Appeal against conviction in respect of counts 1 and 3 dismissed, In respect of Count 4 appeal against conviction allowed, conviction of rape set aside and conviction of unlawful carnal knowledge substituted, In respect of count 4, sentence of two years imprisonment imposed, with 378 days to be declared to be imprisonment already served under that sentence.

R v ON [2009] QCA 062 Holmes JA Muir JA Fraser JA 24/03/2009

Appeal against Conviction from the District Court — Appellant convicted of one count of indecent treatment, six counts of rape, one count of maintaining an unlawful relationship, one count of assault occasioning bodily harm, and two counts of common assault (counts 1 to 9 and 12 to 13) — The appellant was acquitted of a further two counts of assault occasioning bodily harm, and killing an unborn child (counts 10 to 11) — The complainant in respect of all counts was his step-daughter (B) and were said to have been committed when she was 13 years old until she was 20 years old — At the suggestion of police, B telephoned the appellant in a call which was recorded by police — B gave evidence that she became pregnant to the appellant and that during the course of an argument he assaulted her, threw her from the stairs so that she landed on her stomach on concrete, causing her to lose the baby — A doctor from the hospital where B was treated said that B made no complaint of assault or injury, and no abrasions, lacerations, bruising or other signs of injury were noted — The appellant was acquitted of these counts of assault occasioning bodily harm and of killing an unborn child — On Appeal — Joinder of Charges — Objectively speaking there was a discernible forensic reason for wishing the counts involving the offences of violence to proceed with the others, particularly the counts on which the appellant was acquitted — Medical evidence was able to confirm the absence of any contemporaneous complaint or sign of injury — The forensic advantage of this course was not so “slight in comparison with the importance to be attached to the … irregularity in question” as to lead to a different conclusion — No miscarriage of justice resulted from the joinder — Recorded Telephone Conversation — At trial the prosecutor opened and addressed the evidence of the tape as manifesting the appellant’s guilty knowledge — Once the prosecutor invited the jury to conclude that the conversation demonstrated a consciousness of guilty, upon which it could act, it was incumbent on the trial judge to give a direction of the Edwards type (Edwards v The Queen (1992) 173 CLR 653), with the jury being cautioned that it should consider whether there might be other reasons than consciousness of guilt for the appellant’s responses, and that the relevant consciousness of guilt must be in relation to the offences charged, not some other misconduct — No such direction was given — Comments that the learned judge did make compounded the error by suggesting that there was some relevant failure to deny allegations and that the jury might infer guilt from the tenor of the conversation — HELD: Appeal allowed, convictions set aside, appellant to be retried on counts 1 to 9, and 12 to 13

R v Swayn; ex parte A-G (Qld) [2009] QCA 081 Muir JA Fraser JA Mullins J 9/04/2009

Appeal from the District Court — Sentence Appeal by the Attorney-General (Queensland) — Respondent, Anthony Swayn, received a sentence on 27 November 2008 of eight months imprisonment with a parole release date of 27 November 2008 for an offence of grievous bodily harm — The respondent was 27 at the time of the offence, had a relatively minor criminal history and resided with his pregnant de facto spouse, their three month old child and the respondent’s 10 year old daughter — The respondent worked as a trades assistant at the time of the offence — The respondent and his brother, Patrick Swayn, had been informed by a person called Fielder that the complainant had threatened members of their family — Fielder had a grievance against the complainant arising out of a drug transaction — Fielder, the respondent and Patrick went to an apartment where they found the complainant — Fielder and Patrick assaulted the complainant — The respondent did not enter the premises but went there believing that his companions intended to assault the complainant — His role was to provide assistance to his co-offenders should it be required — Fielder assisted in the administration of justice and his sentence was reduced due to his special circumstances — Patrick was 31 years of age at the time of the offence, had a more extensive criminal history and was sentenced to three years imprisonment suspended after eight months with an operational period of three years — On Appeal — There was a significant difference in the brothers’ offending conduct arising from their respective roles — Patrick’s criminal history was more extensive and he was four years older than his brother — The combination of factors show that the sentencing judge was correct in treating the respondent more leniently than his brother — Authorities show that a sentence imposed for an offence such as that committed by the respondent should normally include a term of actual custody unless there are particular circumstances which militate against that result — The offence was premeditated and the respondent was in company with others — He does not have the benefit of a plea of guilty and he did have a relevant criminal history — Those matters combine to establish that the criminality of the respondent’s conduct was not reflected in his sentence: it was manifestly inadequate — If the respondent’s sentence is to be increased then having regard to the parity principle it would need to take into account the early suspension of Patrick Swayn’s sentence — HELD: Appeal allowed, Sentence of fifteen months imprisonment suspended after four months with an operational period of two years be substituted, Warrant to issue for the arrest of the respondent.

R v Rose [2009] QCA 083 McMurdo P Muir JA Atkinson J 9/04/2009

Application from the District Court — Application for Extension (Sentence & Conviction) — Objections or Points Not Raised in Court Below — Appellant charged and convicted of incest with his de facto daughter under s 222 of the Criminal Code 1899 (Qld) — Court heard the application for an extension of time to appeal against conviction on 19 February 2009, granted the application, allowed the appeal, quashed the convictions and reserved its decision as to whether a re-trial should be ordered on any count — The appellant’s relationship with the complainant’s mother began in about 2001 when the complainant was approximately 12 years old — He assumed the role of father to the complainant — When the complainant was 17 the appellant had sex with her — The appellant showed no remorse or insight into the significant detrimental impact of his conduct on her — On Appeal — Immoral behaviour does not, however, always equate to criminal behaviour — Whether the appellant is criminally liable for his dishonourable relationship with the vulnerable complainant turns on the terms of s 222(8) of the Code, and, in particular the meaning of “persons…who are lawfully entitled to marry”. There is no evidence in this case that the parties planned to marry — Once the complainant was 18 years old, she and the appellant were both “persons… entitled to be lawfully married” under the Code — It was conceded by the respondent that the appellant’s convictions for the offences when the complainant was 18 years old must be quashed — The complainant at the times of the other offences was 17 years old and entitled under the Marriage Act to lawfully marry the appellant after obtaining an order of a judicial officer and with the necessary consent — She therefore had grounds for laying a claim to be able to lawfully marry — HELD: Application granted, Appeal allowed, Convictions quashed and Verdicts of acquittal entered on the offences.

R v Cannell [2009] QCA 094 McMurdo P Fraser JA Applegarth J 21/04/2009

Appeal from the District Court — Appeal against Conviction — Misdirection and Non-Direction — Appellant was charged with one count of rape and one count of assault occasioning bodily harm — Pleaded guilty to the assault charge and was found guilty after trial of the rape charge — He was sentenced to eight years imprisonment for rape and to a concurrent term of three years for the assault charge — On Appeal — The complainant consistently maintained her account that the appellant had sex with her against her will, with no evidence directly contradicting her account and a considerable amount of evidence to support it — Although the appellant was very intoxicated at the time, the prosecution did not allege that she “lacked the cognitive ability to give the consent” referred to in s 348(1) of the Criminal Code 1899 (Qld) — The judge then spent a significant portion of his summing-up referring to the evidence in what had been a short trial with less than three days of evidence — The judge’s summation of the evidence covered about 32 pages of the 75 pages of his Honour’s transcribed jury directions — After retiring the jury returned seeking “clarification of the legal definition of consent” — The judge stated to the jury “If a complainant such as [the complainant’ was unconscious, blacked, asleep or so affected by alcohol or drugs that she did not know what was occurring when the act of intercourse took place, the she does not have the cognitive capacity to consent to intercourse.” — Any lack of cognitive capacity on the part of the complainant at the time of sexual intercourse was simply not an issue at trial, although her intoxication and its effect on her reliability of her account was a central issue — If the jury were in doubt as to her account that she did not consent, they should have acquitted — The judge in his ultimate redirection should have told the jury that they could only convict the appellant if they were satisfied beyond reasonable doubt that the appellant had sex with the complainant in [the] unit after forcing the complainant into submission, essentially in the way she described in her evidence — His Honour could and should have told the jury that it was not the prosecution case that the complainant was too drunk to have the cognitive capacity to give consent — The judge’s directions and redirections failed to identify the real issue in the trial and to relate it to the relevant law and facts — HELD: Appeal against conviction of rape allowed, Application for extension of time granted, Application for leave to appeal against sentence on the assault charge granted and the appeal allowed, Sentence imposed on the assault charge set aside with the matter remitted to the District Court for determination at the completion of any re-trial in respect of the offence of rape.

R v Campbell [2009] QCA 095 McMurdo P Keane JA Chesterman JA 21/04/2009

Application from the District Court — Sentence Application — Applicant was charged with child stealing and assault occasioning bodily harm in company — Found not guilty of the child stealing charge but guilty of the assault charge — Sentenced to 12 months imprisonment with parole release date fixed at 11 June 2009 — The applicant was 50 years old at the time of the offence and 52 at sentence — No relevant prior convictions however he had a 2005 conviction for soliciting for prostitution for which he was fined — The applicant’s daughter had been in a de facto relationship with the complainant — There were two children of this relationship and they were ordinarily resident with the daughter with the complainant having regular access to them — The daughter asked the complainant to look after the children while she moved house — No discussion occurred as to when the children would return to the daughter — The daughter asked for the children’s return but this did not occur — The police were called and performed a welfare check and found that the children were being properly cared for and not in any danger — The applicant said to the police officer “I’ll just go and kidnap the kids then” — The police warned him that he could be charged if he did this and that the proper channel was to go through the family law courts — In a car park at a shopping centre the applicant sought the return of one of the children from the complainant — He placed the complainant in a headlock from behind and then stepped back and kicked the complainant in the buttocks or lower back with sufficient force to cause him to fall to the ground — The complainant suffered minor soft tissue injuries — On Appeal — The primary judge’s concern to impose a sentence that discouraged vigilantism and encouraged citizens to follow lawful means to enforce their rights was sound — The applicant was a mature man — The applicant had shown no remorse or insight into the seriousness of his conduct — Nor did he have the mitigating benefit of a plea of guilty — The sentencing judge’s concern about the applicant’s contempt for the rule of law and his resort to violence to effect his daughter’s rights in relation to the child certainly warranted condign punishment — Assaulting and causing bodily harm to the carer of a young child in a public place in the presence of the child and in the company of others was appalling behaviour — Endorse the observations of the trial judge made for the benefit of taxi licensing authorities that the applicant’s commission of this offence would appear to have no bearing on the question of his fitness to continue to drive taxis — HELD: Application for leave refused.

R v Cannell (No 2) [2009] QCA 097 McMurdo P Fraser JA Applegarth J 24/04/2009