Court of Appeal Judgment Summary Notes

CIVIL APPEALS

• Nominal Defendant v Ravenscroft [2007] QCA 435
• Reardon v State of Queensland [2007] QCA 436
• Crowbay P/L & Anor v Body Corporate for “Southbank Chambers” [2007] QCA 453
• Nashvying P/L & Ors v Giacomi [2007] QCA 454
•  Aquila Steel P/L v AMCI (IO) P/L & Anor; BD Coal P/L & Anor v AMCI (BC) P/L and Ors [2007] QCA 456

CRIMINAL APPEALS

• R v Keenan [2007] QCA 440
• R v NI [2007] QCA 442
• R v Roughan & Jones [2007] QCA 443
•  R v Smith [2007] QCA 447
•  R v Abell [2007] QCA 448

CIVIL APPEALS

Nominal Defendant v Ravenscroft [2007] QCA 435 Jerrard JA Muir JA McMurdo J 7/12/2007

General Civil Appeal — where the respondent was injured by an off-road trail bike with no Compulsory Third Party Insurance under the Motor Accident Insurance Act 1994 (Qld) — where trial judge ordered the appellant to pay the appellant $75,000 by way of damages for personal injury – whether s 5 of the Motor Accident Insurance Act 1994 (Qld) is the source of an obligation on the Nominal Defendant to indemnify the first defendant — HELD: Appeal dismissed with costs.

Reardon v State of Queensland [2007] QCA 436 Holmes JA Jones J Douglas J 7/12/2007

General Civil Appeal — where the appellant dived into a rock pool — where the appellant struck his head on a rock ledge not visible above the water — where the appellant suffered severe injuries resulting in quadriplegia — where the appellant brought an action in negligence against the respondent alleging a breach of the duty of care in failing to erect signs warning of the dangers of submerged rocks — where the learned trial judge found no breach of duty — where the appellant appeals against that finding — whether the trial judge should have found that a sign prohibiting diving was required at the rock pool — whether the trial judge should have found that the failure of the rangers to stop the appellant and his friends from diving was negligent — whether the trial judge should have found that a sign warning against the dangers of diving would have altered the plaintiff’s conduct — HELD: Appeal dismissed with costs.

Crowbay P/L & Anor v Body Corporate for “Southbank Chambers” [2007] QCA 453 McMurdo P Holmes JA Jones J 21/12/2007

Application for leave s 118 DCA (Civil) — where the respondent is the body corporate for a community title scheme in respect of four lots in a commercial building — where the applicants have owned Lot 3 since 2003 — where the use of common property at the rear of the building was the subject of a dispute before an adjudicator — where the adjudicator made a determination under s 289(2) of the Body Corporate and Community Management Act 1997 (Qld) (the Act) — where the District Court upheld the decision of the adjudicator — whether the learned District Court judge erred in the construction of s 60 of the Act and made wrong findings in consequence – HELD: Application for leave to appeal dismissed with costs.

Nashvying P/L & Ors v Giacomi [2007] QCA 454 McMurdo P Muir JA Dutney J 21/12/2007

General Civil Appeal – Landlord and Tenant — Creation of relationship — Distinction between lease and license — where appellant agreed to permit the third respondent to quarry land — where third respondent obliged to obtain permits — where appellant entitled to terminate if work not commenced within stipulated time — where third respondent unable to obtain permits — where third respondent transferred its interest to first respondent, which transferred interest to second respondent — where further permit applications refused — where appellant purported to terminate agreement — where respondents successful at first instance in claim for declaration that the appellant was not entitled to terminate — whether instrument was a lease or licence — whether instrument a profit a prendre – whether the contract was uncertain through not providing for ascertainable rent or royalties and a certain leased area — whether contract illusory – where third respondent transferred its interest to first respondent, which transferred interest to second respondent — where appellant claimed that the third respondent made misleading representations in order to gain her consent to the transfer — whether the third respondent’s conduct was such that there was a chance that the appellant was likely to be lead into error — HELD: The appeal be allowed, but only to the extent that the declarations in paragraphs 1.1, 1.2 and 1.3 of the order of 23 April 2007 be set aside and that the following declaration be substituted therefor: “Neither the lease nor the licence referred to respectively in paragraphs 2 and 7 of the statement of claim filed on 1 March 2005 were terminated by the appellant as alleged by the appellant in the amended defence and counterclaim being exhibit 13 in these proceedings.” – The appellant pay one half of the respondents’ costs.

Aquila Steel P/L v AMCI (IO) P/L & Anor; BD Coal P/L & Anor v AMCI (BC) P/L and Ors [2007] QCA 456 McMurdo P Jerrard JA Keane JA 21/12/2007

General Civil Appeal – Contracts — Construction and Interpretation of Contracts —— where a joint venture agreement made provisions in the case of a “change of control” of one of the companies — where there was a restructuring of companies within the group — whether such restructuring amounted to a “change of control” — HELD: Appeals dismissed with costs.

CRIMINAL APPEALS

R v Keenan [2007] QCA 440 McMurdo P Holmes JA Atkinson J 11/12/2007

Appeal against Conviction and Sentence – where the appellant and two co-accused were charged with attempted murder and alternatively with doing grievous bodily harm with intent — where appellant acquitted of attempted murder but convicted of grievous bodily harm with intent — whether adequate directions were given regarding s 8 Criminal Code 1899 (Qld) — where the jury should have been directed that they must be satisfied that the co-accused’s act of causing grievous bodily harm (the doing of an act rendering the principle offender liable to punishment) was the probable consequence of the common intention between the appellant and co-accused — whether a miscarriage of justice resulted – where jury directions on inferences did not sufficiently deal with competing rational inferences favourable to the appellant — where the directions did not meet the requirements set out in Knight v The Queen (1992) 175 CLR 495 – where the jury was misdirected as to s 8 Criminal Code 1899 (Qld) and the drawing of inferences — whether a retrial should be ordered – where the alternative verdict of grievous bodily harm simpliciter should have been left for the jury’s consideration – where sentence of life imprisonment for grievous bodily harm with intent not appropriate — HELD: Appeal against conviction allowed and conviction set aside and verdicts of acquittal entered for the offence of malicious act with intent under s 317(6)(e) Criminal Code 1899 (Qld) and for the offence of grievous bodily harm simpliciter under s 320 Criminal Code 1899 (Qld).

R v NI [2007] QCA 442 Williams JA Muir JA McMurdo J 14/12/2007

Application for Extension (Sentence & Conviction) – where applicant charged with 15 counts of a sexual nature against two boys — where charges joined — where jury convicted on some counts, directed to acquit on others, and acquitted on the remainder — whether charges properly joined — whether jury properly directed on how evidence of one complainant could be used with respect to charges concerning the other complainant — whether verdicts of not guilty on some counts inconsistent with findings of guilt on other counts — whether principles of s 668E relevant when considering whether an application for extension of time should be granted — HELD: Application dismissed.

R v Roughan & Jones [2007] QCA 443 Keane JA Muir JA McMurdo J 14/12/2007

Appeal against Conviction – where appellants pleaded not guilty to murder and guilty to interfering with a corpse — where appellants convicted of murder — whether jury could have been satisfied beyond reasonable doubt that deceased was alive when first appellant was said to have stabbed and decapitated deceased – where first appellant was refused separate trial — whether joint trial made disentanglement of case against first appellant from stronger case against second appellant unduly difficult — whether evidence that first appellant had been charged with similar offence, admitted in second appellant’s case, unfairly prejudiced first appellant’s prospects of acquittal — whether separate trials should have been ordered to ensure fair trial of first appellant – where second appellant prevented from exploring detail of evidence that first appellant had been charged with similar offence — whether second appellant thereby denied chance of establishing that first appellant more likely to have murdered deceased — whether separate trials should have been ordered to ensure fair trial of second appellant – where witnesses prosecuted as accessories and received wholly suspended sentences conditioned upon undertaking to give evidence against appellants — whether evidence of witnesses should have been excluded under s 130 Evidence Act 1977 (Qld) – whether evidence of second appellant’s bad character should have been excluded — whether jury were properly directed on use of that evidence — whether evidence of first appellant’s violent music collection properly excluded — whether second appellant denied fair chance of acquittal — HELD: In relation to Roughan, appeal allowed, conviction set aside and new trial ordered; In relation to Jones, appeal dismissed.

R v Smith [2007] QCA 447 McMurdo P Keane JA Daubney J 19/12/2007

Appeal against Conviction – where the appellant was convicted of manslaughter — where the appellant contended that the prosecution’s closing address to the jury was inflammatory and went beyond what was reasonable comment on the evidence — whether a miscarriage of justice resulted — HELD: Appeal against conviction allowed, verdict of guilty of manslaughter set aside, a retrial is ordered.

R v Abell [2007] QCA 448 McMurdo P Holmes JA Muir JA 19/12/2007

Appeal against Conviction & Sentence – where appellant was examined under s 24A Australian Crime Commission Act 2002 (Cth) — where appellant not advised by the examiner that he was entitled to legal representation under s 25A(2) Australian Crime Commission Act 2002 (Cth) — where there was no obligation for the examiner to issue such advice — where appellant claimed that proceedings were not conducted fairly because he appeared to be ill — where examiner inquired if something was wrong before continuing with examination — where appellant claims to have been denied natural justice and procedural fairness — whether there was a miscarriage of justice – where directions were given as to whether the appellant had consciously refused to answer a question posed by the examiner — where the appellant claimed he had expressed an inability to answer — where no direction was issued to that effect — whether this amounted to a misdirection – where the whole transcript of the examination was tendered as evidence — where the appellant claimed that a miscarriage of justice had resulted from the tendering of the whole transcript — where the appellant relied upon the same parts of the transcript objected to — whether there was a miscarriage of justice – whether the sentencing judge erred in exercising the sentencing discretion — whether the sentence imposed was manifestly excessive — HELD: Appeal against conviction dismissed, application for leave to appeal against sentence refused.