Court of Appeal Judgments – Summary Notes

CIVIL APPEALS

• Lee v Kokstad Mining P/L [2007] QCA 248
• Cth DPP v Jo & Ors [2007] QCA 251
• Begley v Fisigi P/L [2007] QCA 252
• Spencer v Nominal Defendant [2007] QCA 254
• Muller & McIntosh (as joint & several liquidators of Arafura Equities P/L (in liq)) v Academic Systems P/L [2007] QCA 256
• Green v Hanson Construction Materials P/L [2007] QCA 260
• Schepis & Anor v Esanda Finance Corp Ltd & Anor [2007] QCA 263
• Elesanar Constructions P/L v State of Qld [No 2] [2007] QCA 264
• Woods v The Chief Executive, Department of Corrective Services [2007] QCA 265
• Grainger v Roombridge P/L t/a Laguna Noosa [2007] QCA 276
• Sykes v Queensland Gas Company Ltd [2007] QCA 277
• ChongHerr Investments Ltd v Titan Sandstone P/L [2007] QCA 278
• Power v Markel Capital Ltd [2007] QCA 284
• Edwards & Anor v Caldwell & Anor [2007] QCA 285

CRIMINAL APPEALS

• R v Bryant [2007] QCA 247
• R v Johnson [2007] QCA 249
• R v Cameron [2007] QCA 250
• R v Smith [2007] QCA 253
• R v Serbanoui [2007] QCA 257
• R v Holzberger [2007] QCA 258
• R v Le [2007] QCA 259
• R v AAB [2007] QCA 261
• R v BFF [2007] QCA 262
• R v Nabhan; R v Kostopoulos [2007] QCA 266
• R v MAX [2007] QCA 267
• R v Klasan [2007] QCA 268
• R v Eastwell [2007] QCA 272
• R v Assurson [2007] QCA 273
• R v Duckworth [2007] QCA 274
• R v BBG [2007] QCA 275
• R v Hillier [2007] QCA 279

CIVIL APPEALS

Lee v Kokstad Mining P/L [2007] QCA 248; Appeal No 10019 of 2006, 3 August 2007

General Civil Appeal — where respondent made an application for a mining lease over certain land — where respondent complied with the relevant provisions of the Mineral Resources Act 1989 (Qld), including notice provisions — where no objections lodged by the last objection day — where the Land and Resources Tribunal (LRT) made a recommendation to the Minister that the mining lease be granted — where appellant, an affected landowner, made an application to the President of the LRT that the recommendation be set aside — where the President made orders setting aside the recommendation and extending the time in which the appellant could make an objection — where respondent abandoned the application with respect to part of the land formerly subject to the application — where various applications made by the appellant, respondent, and another affected landowner — where the LRT ordered that a number of questions be answered, and answered these questions — whether the LRT erred in answering any of these questions — whether the LRT had jurisdiction to extend the time for lodging an objection to a mining lease application — whether the LRT appropriately determined the consequences of abandoning the application with respect to some of the land — whether the LRT’s interpretation of s 307 of the Land and Resources Tribunal Act 1999 (Qld) was correct — HELD: declare that the orders made by the LRT constituted by Keppenol P on 6 December 2005 having been made without jurisdiction were of no effect — appeal dismissed — appellant pay the respondent’s costs of the appeal.

Cth DPP v Jo & Ors [2007] QCA 251; Appeal No 1286 and 1474 of 2007, 3 August 2007

Application for Leave s 118 DCA (Civil) — where Cth DPP sought leave to appeal against the interlocutory orders of a District Court judge staying applications for forfeiture orders under the Proceeds of Crime Act 2002 (Cth) — where AFP and ATO had been conducting investigations into certain tax avoidance schemes — where first respondent allegedly participated in these schemes and was suspected of having committed offences contrary to s 29D Crimes Act 1914 (Cth) and s 134.2(1) Criminal Code (Cth) — where first respondent has not yet been charged with an offence — where scheme for restraining orders and forfeiture orders requires the commission of a serious offence or reasonable suspicion — where reasonable suspicion here existed — where applications for exclusion of property from restraining and forfeiture orders cannot be heard until CDPP has been given a reasonable opportunity to conduct an examination of the applicant — where first respondent’s counsel alleged that in pursuing applications for exclusion orders and resisting the making of forfeiture orders the first respondent’s privilege against self-incrimination and right to silence were at risk as it would affect the later criminal proceedings — where certain orders were made in March and April 2006 restraining dealings with certain real property, watercraft and motor vehicles — where applicant later filed applications for forfeiture — where first and second respondents filed an application to stay these proceedings — where applications to examine the first and second respondents adjourned pending determination of the stay application — where orders made staying the proceedings, and adjourning the length of the stay, the application for directions, examination orders and costs until a further hearing— where by defending forfeiture proceedings, the respondents may expose themselves to examinations which afford the CDPP an advantage in the criminal proceedings and prejudice any defence they may seek to raise — where privilege against self-incrimination can be waived or excluded by statute — where Act reveals a clear legislative intent to abrogate the privilege — whether material before judge gave sufficient basis upon which to grant a stay — whether judge took into account an irrelevant consideration in considering the length of time it was taking for a criminal charge to crystallise — whether primary judge’s exercise of inherent jurisdiction to stay proceedings was proper — HELD: leave to appeal granted — appeals dismissed — applicant to pay the respondents’ costs of and incidental to the applications for leave to appeal and the appeals to be assessed on the standard basis.

Begley v Fisigi P/L [2007] QCA 252; Appeal No 516 of 2007, 3 August 2007

Application for Extension of Time/General Civil Appeal — where appellant vendor entered contract to sell a proposed allotment to the respondent purchaser — where vendor’s solicitors sent to the purchaser’s solicitors transfer documents executed by the vendor — where letter attaching transfer documents specified that they were held for “stamping purposes only” until settlement occurred — where the disclosure plan and disclosure statement provided to the purchaser did not comply with s 9(2) Land Sales Act 1984 (Qld) — where non-compliance gave the purchaser a right to avoid the contract under s 9(5) by written notice prior to the vendor giving the purchaser a “registrable instrument of transfer”, which is defined as “capable of immediate registration” in the land registry — where purchaser gave notice avoiding the contract the day before settlement, relying on s 9(5) — whether, in light of the terms of the covering letter, the transfer documents could be considered capable of “immediate registration” — meaning of phrase “capable of immediate registration” — whether the proper inquiry was to the form of the transfer document without regard to the wider contractual environment — whether “registrable instrument of transfer” means the transfer document as provided on settlement — whether declarations of learned trial judge rightly made — HELD: application for leave to appeal granted — appeal dismissed — applicant to pay the respondent’s costs.

Spencer v Nominal Defendant [2007] QCA 254; Appeal No 3387 of 2007, 8 August 2007

Application for Leave s 118 DCA (Civil) — where applicant suffered injury in March 2003 — where relevant limitation period expired — where consent order dispensed with certain requirements and specified the date by which proceedings must be commenced — where this date passed without proceedings being commenced — where applicant sought extension of time under s 57(2)(b) Motor Accident Insurance Act 1994 (Qld) — where application for extension refused — where the respondent would be deprived of the benefit of the contract embodied in the consent order if the discretion was exercised in the appellant’s favour — whether discretion under s 57(2)(b) exercised correctly — whether judge correctly identified the reason for delay — whether explanation for delay appropriately considered as a factor in exercising the discretion — purpose of discretion conferred by s 57(2)(b) — factors generally relevant to the exercise of the discretion — whether a contract embodied in a consent order can be set aside — whether extension should be granted — whether appeal would have any real prospects of success — HELD: application for leave to appeal refused — applicant to pay respondent’s costs to be assessed.

Muller & McIntosh (as joint & several liquidators of Arafura Equities P/L (in liq)) v Academic Systems P/L [2007] QCA 256; Appeal No 3994 of 2007, 10 August 2007

General Civil Appeal (Further Order) — where judgment given in appellants’ favour in the Court of Appeal — where respondent was ordered to pay costs of District Court proceedings to be assessed — where leave granted to make written submissions on the issue of costs — where appellant made an offer to settle prior to commencing proceedings — where appellant obtained judgment on appeal that was “no less favourable than the offer to settle” — whether costs should be awarded on an indemnity basis — HELD: that para 7 of the orders pronounced in this matter on 13 July 2007 be amended to read: “7. The respondent pay the appellants’ costs of an incidental to the proceedings in the District Court assessed on an indemnity basis and of this appeal to be assessed.”

Green v Hanson Construction Materials P/L [2007] QCA 260; Appeal No 532 of 2007, 10 August 2007

General Civil Appeal — where plaintiff was a courier — where plaintiff injured her shoulder when she fell down the defendant’s stairs while making a delivery — where plaintiff had failed to hold onto the handrail when descending the stairs — where expert evidence led about the slope of the stairs and the risk occasioned by the slope — where slip-resistant strips were installed on the stairs after the accident — whether the incline caused or contributed to the fall — whether the defendant breached its duty of care to the plaintiff — whether the plaintiff was contributorily negligent and showed want of care for her own safety — where learned judge made an assessment of damages for future economic loss in the amount of $100,000, but assessed damages for past economic loss at $1500.75 — whether the learned judge erred in concluding the quantum for future economic loss — application of s 9 Civil Liability Act 2003 (Qld) — HELD: appeal allowed — reduce damages awarded by 30% to $103,358.22 — respondent to pay two thirds of the appellant’s costs of the appeal assessed on the standard basis.

Schepis & Anor v Esanda Finance Corp Ltd & Anor [2007] QCA 263; Appeal No 2542 of 2007, 10 August 2007

General Civil Appeal — where the appellants commenced proceedings in the Supreme Court of Queensland subsequent to earlier proceedings in New South Wales — where the appellants alleged that the judge in the NSW proceedings had erred and that the judgment was procured by fraud — where learned judge held the defence of res judicata was a complete bar to the action commenced in Qld on the same grounds and summarily dismissed their application — where appellants seek leave to appeal against this summary dismissal — whether the appellants are able to succeed without having the NSW decision set aside — whether learned judge erred in concluding the action was barred by res judicata — HELD: appeal dismissed with costs.

Elesanar Constructions P/L v State of Qld [No 2] [2007] QCA 264; Appeal No 503 of 2007, 17 August 2007

General Civil Appeal — where appeal allowed — where parties granted seven days to make submissions as to costs — where appellant submits costs should follow the event — where respondent submits each party should bear their own costs — where appellant failed to refer the judge at first instance to the surrounding circumstances relevant to construing the contract — where respondent contends the appellant’s failure to raise this sooner deprived the respondent the opportunity to make a proper assessment of whether to proceed with the application — where offer to settle had been made by respondent prior to the filing of the appeal book — where case advanced on appeal was more elaborate than that raised at first instance — where notice of appeal excessively discursive and pedantic — whether appellant’s failure to refer to surrounding circumstances is relevant to an assessment of costs in this Court or at first instance — whether any of the circumstances raised warrant a departure from the usual order as to costs on appeal — HELD: set aside para 4 of the order of Muir J made on 21 December 2006 and in lieu thereof order that the applicant pay the respondent’s costs of the application up to an including 21 December 2006 to be assessed — order that the respondent pay the appellant’s costs of an incidental to the appeal to be assessed.

Woods v The Chief Executive, Department of Corrective Services [2007] QCA 265; Appeal No 762 of 2007, 17 August 2007

Application for Leave/Judicial Review — where applicant was sentenced in December 2000 to eight years imprisonment for various offences, the most serious being armed robbery — where appellant’s application for a remission pursuant to s 75 Corrective Services Act 2000 in July 2006 was refused — where decision-maker concluded he could not be satisfied that the appellant did not pose an unacceptable risk to the community — where appellant contends the decision-maker failed to consider a “letter of comfort” provided by a Detective Senior Constable concerning assistance provided by the appellant in a particular investigation — whether respondent’s decision reviewable on grounds of unreasonableness — whether respondent’s decision reviewable on grounds of failing to take into account relevant considerations — nature of power granted under s 75 — HELD: appeal dismissed — appellant to pay respondent’s costs of the appeal.

Grainger v Roombridge P/L t/a Laguna Noosa [2007] QCA 276; Appeal No 2601 of 2007, 24 August 2007

General Civil Appeal — where applicant employee agreed with respondent employer to work as a real estate agent — where agreement provided that the respondent would advance a weekly sum of money to the applicant and the applicant would repay these moneys under certain circumstances — where agreement provided that the applicant would work for commission only — where agreement registered and approved in accordance with the Property Sales Award Queensland-State — where the Award provides for minimum remuneration and provides that in certain circumstances employer and employee may elect to opt out of minimum remuneration provisions — whether the moneys advanced were repayable as a loan — whether the terms of the agreement were ambiguous so that extrinsic evidence could be admitted to resolve the ambiguity — whether agreement invalid under the Award — HELD: application for leave to appeal refused — applicant to pay respondent’s costs of the application to be assessed.

Sykes v Queensland Gas Company Ltd [2007] QCA 277; Appeal Nos 2181 and 5310 of 2007, 24 August 2007

General Civil Appeal — where first proceedings against respondent struck out on the basis that the appellant’s statement of claim did not comply with the UCPR — where second proceedings commenced — where statement of claim in second proceedings struck out but action stayed pending determination of proceedings in the Land and Resources Tribunal and the filing and service of an expert report establishing certain facts forming the basis of the claim — whether orders correctly made — HELD: appeals dismissed — appellant to pay the respondent’s costs in each appeal.

ChongHerr Investments Ltd v Titan Sandstone P/L [2007] QCA 278; Appeal No 10600 of 2006, 24 August 2007

General Civil Appeal (Further Order) — where appellant successful in the Court of Appeal — where respondent ordered to pay the appellant’s costs of appeal and trial — where respondent disputed costs as quantified by costs assessor — whether appeal reasonably required the services of two counsel — whether input tax credit applies to solicitor’s professional fees — whether solicitor’s attendances can be claimed under both Sch 1 Item 16 and Sch 1 Item 1 UCPR — HELD: the appellant’s costs are fixed: (a) for the proceedings at first instance $8,000; (b) for the appeal $30,000; total $38,000.

Power v Markel Capital Ltd [2007] QCA 284; Appeal No 10671 of 2006, 31 August 2007

General Civil Appeal — where the CMC conducted in inquiry into suspected official misconduct by Councillors of the Gold Coast City Council, employees and certain others — where appellant gave written statement to CMC, produced documents and gave oral evidence — where appellant charged under s 218 Crime and Misconduct Act 2001 (Qld) — where appellant’s lawyers wrote to Council’s insurance brokers requesting confirmation of indemnity under the policy and written consent to incur fees — where Council failed to respond — whether a document provided by appellant to the CMC was provided in the course of his duties as a Councillor — whether appellant’s conduct amounted to a “Wrongful Act” as defined in the policy — whether the summary hearing / investigation related to matters which “may give rise to a Claim” — whether later proceedings on indictment against the appellant satisfied the definition of “Claim” — whether appellant entitled to be indemnified for his legal expenses in successfully defending certain criminal proceedings — connection required between the making of the statement and the appellant’s duties as a Councillor — HELD: appeal allowed — set aside the orders of the trial judge made herein on 13 November 2006 — in lieu thereof: (a) declare that upon the true construction of policy No. B0621PGOL00405 underwritten by Markel Syndicate 3000 at Llyods, the applicant is entitled to payment by the underwriters on an ongoing basis of all his reasonable legal fees, costs and expenses incurred in being legally represented with respect to proceedings against him instituted by the complaint of Detective Inspector John Edwards Lewis sworn on 11 April 2006; (b) order that the respondent pay the applicant’s costs of the application to be assessed — order that the respondent pay the appellant’s costs of the appeal to be assessed.

Edwards & Anor v Caldwell & Anor [2007] QCA 285; Appeal No 2739 of 2007, 31 August 2007

General Civil Appeal — where appellants are executors of a will — where the appellants attempted to prove the will — where learned trial judge concluded that the appellants should have known the action was bound to fail — where learned judge drew inferences against the appellants in coming to the conclusion — where learned judge ordered the appellants pay the respondents’ costs of the action on an indemnity basis, and not to be paid out of the estate — whether the learned judge erred in making the costs order — HELD: appeal allowed — set aside order number 5 made on 1 March 2007 — the appellants’ costs of an incidental to the action be paid out of the deceased’s estate in respect of costs incurred before 30 June 2004, but not thereafter — the appellant Graham Leslie Edwards pay the respondents’ costs of and incidental to the 1 March 2007 proceedings on an indemnity basis in respect of costs incurred on and from 1 July 2004 — the respondents pay the appellants’ costs of the appeal assessed on the standard basis which costs the respondents can recoup from the estate.

CRIMINAL APPEALS

R v Bryant [2007] QCA 247; CA No 77 of 2007, 3 August 2007

Sentence Application — where applicant pleaded guilty to nine property offences — where applicant had extensive criminal history for similar offences — where property taken was less than $7,000 — where sentencing judge considered the applicant to be a serious and serial offender — where most of the recent offending was committed whilst on bail and probation — where learned sentencing judge also considered general and personal deterrence — where applicant sentenced to five years imprisonment with parole eligibility after two years — whether head sentence manifestly excessive — whether learned judge failed to adequately moderate the head sentence to take into account the applicant’s plea of guilty — HELD: allow the application — allow the appeal — substitute a sentence of four years imprisonment, with a parole eligibility date of 27 September 2008 [after 18 months imprisonment].

R v Johnson [2007] QCA 249; CA No 94 of 2007, 3 August 2007

Sentence Application — where applicant pleaded guilty to arson of a dwelling house — where applicant sentenced to four years imprisonment with parole eligibility after serving 15 months — where plea was a late plea — where applicant had only a minor criminal history — where applicant and complainant had been in a de facto relationship but were separated at the time of the incident — where property was valued at $175,000 prior to the fire — where insurance paid a total of $113,000 for repairs and contents — where fire was deliberately lit — where applicant’s emotional and psychological condition was considered — whether too much weight placed on the pecuniary value of the damaged property — whether head sentence beyond the established range — HELD: application for leave to appeal against sentence dismissed.

R v Cameron [2007] QCA 250; CA No 85 of 2007, 3 August 2007

Application for Extension (Sentence) — where applicant pleaded guilty to 40 charges of offences against property — where applicant made admissions to 704 property offences — where admissions considered for sentencing purposes — where total identifiable property loss exceeded $1.1M — where offender aged 17 to 25 when offences committed — where some offences committed whilst the applicant was on probation — where nine year head sentence imposed with parole eligibility after four years — where applicant was released on parole in 2000, made efforts to further his education and achieved a law-abiding lifestyle — where applicant returned to a life of drug addiction and stealing — whether applicant showed good reasons for delay in applying for leave to appeal against sentence — whether interests of justice require grant of extension — whether sentence manifestly excessive — HELD: application dismissed.

R v Smith [2007] QCA 253; CA No 56 of 2007, 3 August 2007

Appeal against Conviction & Sentence — where applicant convicted after trial of arson — where case against appellant largely circumstantial — whether learned trial judge gave balanced summing up — whether verdict unsafe and unsatisfactory and contrary to law — whether learned trial judge erred in failing to use the phrase “presumption of innocence” in summing up — whether learned trial judge erred in ruling against the appellant’s counsel’s no case submission — where applicant sentenced to 27 months imprisonment with parole eligibility on 1 February 2008 — where effective sentence, taking into account time in pre-sentence custody which could not be declared, was 54 months imprisonment with parole eligibility after 25 months — where offence involved a significant amount of planning — where fire caused significant damage — where no immediate risk to life occasioned by the fire and risk of spreading was minimal — where appellant’s medical conditions considered — whether sentence manifestly excessive — HELD: appeal against conviction dismissed — application for leave to appeal against sentence dismissed.

R v Serbanoui [2007] QCA 257; CA No 95 of 2007, 10 August 2007

Sentence Application — where applicant pleaded guilty to various offences including drug related charges, stealing and traffic offences — where the commission of these offences constituted a breach of a suspended sentence — where learned sentencing judge activated the whole of the unserved period, being four months imprisonment, with respect to the breach — where applicant further sentenced to two and a half years imprisonment for the drug offences with those sentences to be served concurrently, but cumulative on the four months imprisonment — where applicant further sentenced to 15 months imprisonment for each of three traffic offences to be served concurrently, but cumulatively on the four months and two and a half years already imposed — where total sentence imposed was four years and one month imprisonment — where cooperation with the administration of justice and familial support taken into account in setting a parole release date — whether overall penalty imposed was manifestly excessive taking into account the totality principle — where sentence of 15 months imprisonment imposed on each of three counts of driving without a licence — where maximum statutory penalty was 18 months imprisonment where circumstance of aggravation present and 12 months for unlicensed driving — where two counts charged with the circumstance of aggravation, but where the other count was charged as unlicensed driving only — where applicant had a six page traffic history — whether sentence with respect to unlicensed driving was manifestly excessive — HELD: grant leave to appeal against sentence — allow the appeal only to the extent of setting aside the sentence imposed with respect to the offence of driving without a licence on 20 October 2006, and in lieu thereof ordering that the applicant be imprisoned for a period of three months to be served concurrently with the period of imprisonment ordered with respect to the offences of driving whilst disqualified on 4 April 2006 and 18 July 2006.

R v Holzberger [2007] QCA 258; CA No 49 of 2007, 10 August 2007

Sentence Application — where applicant pleaded guilty to one count of defrauding the Cth, three counts of obtaining financial advantage by deception, two counts of attempting to obtain financial advantage by deception, one count of using a forged document, and one count of stealing as a servant — where applicant sentenced to three years imprisonment with release after 15 months and a three year recognisance in the sum of $1000 on 5 of the Cth offences — where applicant sentenced to two years imprisonment with a similar release order for the two attempt counts — where restitution of $31,020.73 ordered to be repaid to the Cth — where sentence of two years imprisonment with parole after 15 months imposed for stealing as a servant with an order to pay restitution of $2,079.98 to his former employer — where applicant had made reparation and made significant steps towards rehabilitation since his last offending in April 2006 — where other mitigating features present — where applicant had breached two probation orders and had a criminal history — whether sentence manifestly excessive — HELD: application for leave to appeal dismissed.

R v Le [2007] QCA 259; CA No 69 of 2007, 10 August 2007

Appeal against Conviction — where appellant convicted of arson and attempted fraud — where transcript of taped interview between the appellant and a detective was provided to the jury during the playing of the evidence and then collected by the bailiff — where transcript was again made available to the jury upon their request after they had retired — where judge gave multiple directions about the use which could be made of the transcript, stressing that the transcript itself was not evidence — whether the learned judge erred in giving the jury access to the transcripts — where appellant made some exculpatory statements — where learned trial judge directed the jury about these statements — whether this direction was appropriate — HELD: appeal dismissed.

R v AAB [2007] QCA 261; CA No 67 of 2007, 10 August 2007

Appeal against Conviction — where appellant convicted of recording an indecent visual image of a child under 16 years — where inadmissible and prejudicial evidence had been put before the jury concerning the police warrant — where the learned judge gave a careful and full direction to the jury about this evidence — whether the direction was sufficient to overcome the prejudice created — whether learned trial judge erred in failing to discharge the jury — HELD: appeal dismissed.

R v BFF [2007] QCA 262; CA No 168 of 2006, 10 August 2007

Sentence Application — where applicant convicted of attempted murder of her 3 month old child and sentenced to four years imprisonment — where mother was experiencing difficulty in caring for her two children — where applicant desisted on her own motion from smothering the child and called emergency services — where child suffered no long term adverse consequences — where appellant aged 20 years at time of offence — where psychiatrist’s report supported a conclusion that the appellant’s actions did not stem from mental illness or depression but immaturity and inability to cope with the demands of parenting — whether sufficient weight given to the applicant’s personal problems and remorse — whether sentence manifestly excessive — HELD: application for leave to appeal against sentence refused.

R v Nabhan; R v Kostopoulos [2007] QCA 266; CA Nos 38 & 101 of 2007, 17 August 2007

Appeal against Conviction & Sentence and Sentence Application — where both applicants pleaded guilty to trafficking in the dangerous drugs cocaine, speed, ecstasy and GHB — where on date of sentencing for those offences, Nabhan also pleaded guilty to two counts of unlawful possession — where Nabhan sentenced to 13 years imprisonment for trafficking and 12 months concurrent imprisonment for the possession offences — where Kostopoulos sentenced to 15 years imprisonment to be served cumulatively with the 21 month balance of suspended terms of imprisonment previously imposed, and ordered to pay $811,460 to the State of Qld by way of pecuniary penalty order — where telephone intercepts revealed the nature and extent of the business — where Nabhan was Kostopoulos’ principal supplier — where Kostopoulos received a greater share of the proceeds — where Kostopoulos had used threats of physical violence against people, including Nabhan — where both applicants motivated by profit — where Nabhan was a drug user — where Nabhan, though subordinate to Kostopoulos, was still considered a “major player” — where current offences were committed whilst Kostopoulos was subject to the balance of suspended sentences — where Nabhan’s psychiatric conditions relevant when sentencing — where Kostopoulos had a worse criminal history than Nabhan — where neither applicant entered a timely plea — where Nabhan’s attempts to withdraw his plea diminished the benefit flowing from it — whether sufficient weight given to Nabhan’s plea of guilty, cooperation with police and bail undertaking — whether the range of sentence notionally adopted with respect to Kostopoulos was too high and failed to take into account his plea of guilty, the totality principle, considerations of parity with Nabhan, and rehabilitation prospects — whether sentences imposed manifestly excessive — HELD (Nabhan): strike out appeal against conviction in respect of the possession counts — application for leave to appeal against sentence refused — HELD (Kostopoulos): application for leave to appeal against sentence refused.

R v MAX [2007] QCA 267; CA No 97 of 2007, 17 August 2007

Appeal against Conviction — where appellant convicted of one count of murder and two counts of assault occasioning bodily harm while armed with an offensive instrument — where appellant gave a statement to police and gave evidence at trial substantially in accord with his statement — where persons involved were intoxicated — where appellant’s evidence was inconsistent with the evidence of other witnesses — where prosecutor in his address suggested that the evidence of the appellant was fabricated, but did not invite the jury to conclude beyond reasonable doubt that those lies were told from a consciousness of guilt and amounted to an admission — where learned trial judge gave an Edwards direction, and outlined that should the jury conclude the appellant did lie it could go to his credibility or amount to an admission — whether the learned judge erred in making an Edwards direction given the case presented by the crown — whether it is necessary for a trial judge, where an Edwards direction is given, to indicate the element of the offence that is said to be admitted by the telling of a lie — whether the appellant’s state of intoxication was such that he was incapable of forming the requisite intention for a conviction of murder — whether the learned trial judge should have directed that any consciousness of guilt revealed by the lie could relate to the lesser offence of manslaughter — whether the direction given prejudiced the appellant’s right to a fair trial — whether the conviction could be sustained pursuant to s 668E(1A) Criminal Code (Qld) — circumstances where jury to be satisfied beyond reasonable doubt of existence of lie — HELD: allow the appeal — quash the convictions on all counts — order a re-trial on all counts.

R v Klasan [2007] QCA 268; CA No 121 of 2007, 17 August 2007

Sentence Application — where applicant pleaded guilty to trafficking in cocaine and ecstasy — where applicant sentenced to 11 years imprisonment — where learned trial judge heard evidence and made findings concerning disputed facts — where disputed facts included the meaning of certain “code” words used in conversation, the scale of the trafficking and level of involvement of the applicant — whether findings made were reasonably open — whether the correct onus and standard of proof was applied — whether sentence imposed manifestly excessive — HELD: application for leave to appeal against sentence refused.

R v Eastwell [2007] QCA 272; CA No 131 of 2007, 20 August 2007

Sentence Application — where applicant pleaded guilty to offences associated with domestic violence against his wife — where head sentence imposed of 12 months imprisonment cumulative on the 12 months activated suspended sentence, with the parole release date set at 14 May 2008 — where applicant is a repeat offender — where applicant sought to rely on post-sentence material on appeal — whether the sentence was manifestly excessive — HELD: application for leave to appeal dismissed.

R v Assurson [2007] QCA 273; CA No 72 of 2007, 24 August 2007

Sentence Application — where applicant pleaded guilty to various drug related offences, including trafficking — where sentence of nine years imprisonment imposed — where head sentence, if applicant been convicted by jury, would be 12 to 13 years imprisonment, with an automatic serious violent offence declaration attached, requiring 80% of the sentence to be served — where plea came at a late stage — where the serious violent offence declaration was imposed by the learned sentencing judge without request by either counsel, to achieve a “just and equitable sentence” — whether the making of the SVO declaration was warranted — whether sentencing discretion miscarried — HELD: grant leave to appeal against sentence — allow the appeal to the extent of: (a) deleting from the sentence imposed on the count of trafficking the serious violent offence declaration; and (b) fixing the applicant’s parole eligibility date as 14 September 2012 — otherwise confirm the sentences imposed.

R v Duckworth [2007] QCA 274; CA No 110 of 2007, 24 August 2007

Sentence Application — where applicant pleaded guilty to one count of armed robbery in company with violence — where applicant sentenced to four years imprisonment, suspended after serving 10 months, with an operational period of four years — where applicant was 46 at the time of the offence and 47 at the time of sentencing — where applicant had no relevant previous history — where offence involved two others, showed premeditation and was an inside job — where applicant asserts that he wrongly considered two female employees to be participants — where applicant sentenced to same head sentence, with less actual time in custody, as a co-offender — whether applicant sentenced on an incorrect version of the facts — whether applicant’s lesser involvement meant applicant should been sentenced to lesser sentence than his co-offender — whether sentence manifestly excessive — HELD: application dismissed.

R v BBG [2007] QCA 275; CA No 54 of 2007, 24 August 2007

Appeal against Conviction — where appellant charged with four offences of a sexual nature against a child under 16 — where the four charges were joined — where counts 1 & 2 related to one complainant and counts 3 & 4 to a different complainant — where counts 3 & 4 were closely connected in time and type to the acts constituting count 2 — where factual basis of count 1 quite distinct from the other counts — whether count 2 was properly joined to counts 3 & 4 — whether count 1 was properly joined to the other counts — use which can be made of similar fact evidence at trial — admissibility of similar fact evidence — whether the joinder of charges occasioned a miscarriage of justice — whether a retrial should be ordered on count 1 — HELD: in respect of count 1: allow the appeal against conviction; set aside the conviction and verdict and order a retrial — in respect of counts 2,3 and 4, dismiss the appeal against conviction.

R v Hillier [2007] QCA 279; CA No 145 of 2007, 24 August 2007

Sentence Application — where applicant convicted of one count of dangerous operation of a motor vehicle and sentenced to 18 months imprisonment, to be served cumulatively to a sentence he was already serving — where applicant sentenced to a concurrent sentence of six months imprisonment for various summary offences — where applicant had an extensive criminal history — where incident involved a police chase — whether, having regard to the totality principle, the sentence was manifestly excessive — HELD: application for leave to appeal dismissed.