Court of Appeal Judgments – Summary Notes

CIVIL APPEALS

• Spencer & Anor v Hutson & Ors [2007] QCA 178
• Rapid Roofing P/L v Natalise P/L & Ors [2007] QCA 179
• Hall v R H & C E McColl P/L [2007] QCA 182
• Cth DPP v Hart & Ors [2007] QCA 184
• Kenny v Nominal Defendant & Ors; Anderson v Kenny & Ors [2007] QCA 185
• Johnston v Jewry & Anor [2007] QCA 188
• Australand Land and Housing No 5 (Hope Island) P/L & Ors v Gold Coast City Council; Fish Developments (Hope Island) P/L & Ors v Gold Coast City Council [2007] QCA 189
• Angus v Conelius & Anor [2007] QCA 190
• Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007] QCA 192
• Haug v Jupiters Limited t/a Conrad Treasury Brisbane [2007] QCA 199
• Charles & Howard P/L v Redland Shire Council [2007] QCA 200
• Montgomery & Ors v Pickard & Ors [2007] QCA 203
• Haraba P/L v Castles [2007] QCA 206
• Elesanar Constructions P/L v State of Qld [2007] QCA 208
• Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211
• EPAS Ltd & Ors v AMP General Insurance Ltd [2007] QCA 212

CRIMINAL APPEALS

• R v Kolb [2007] QCA 180
• R v Blenkinsop; R v Blenkinsop [2007] QCA 181
• R v Sheedy; ex parte A-G (Qld) [2007] QCA 183
• R v Gibb [2007] QCA 191
• R v Ronkovich [2007] QCA 193
• R v Saub [2007] QCA 194
• R v Newman [2007] QCA 198
• R v Richwood [2007] QCA 201
• R v Glattback [2007] QCA 204
• R v Cannon [2007] QCA 205
• R v WS [2007] QCA 207
• R v Lake; R v Carstein; R v Geerlings [2007] QCA 209

CIVIL APPEALS

Spencer & Anor v Hutson & Ors [2007] QCA 178; Appeal No 11354 of 2006, 1 June 2007

Application for Extension of Time/General Civil Appeal — where second respondent entered consultancy agreement with third and fourth respondent — where deed purported to assign balance of moneys payable under agreement to applicants — where property of second respondent was subject to floating charge — where floating charge crystallised — where second respondent had undertaken not to deal in property subject to a fixed charge — where second respondent was wound up — where first and second respondents sought to recover moneys paid to applicants by third respondent — where summary judgment given for recovery of moneys payable at date of assignment deed — whether there was a novation of the consultancy agreement so that applicants displaced second respondent as third respondent’s consultant — whether assignment confined to moneys payable at date of deed — whether applicants obliged to repay moneys to second respondent — whether assignment deed executed in best interests of second respondent for good consideration — whether extension of time should be granted — HELD: application for extension of time refused — applicants to pay second respondent’s costs of the application.

Rapid Roofing P/L v Natalise P/L & Ors [2007] QCA 179; Appeal No 8388 of 2006, 1 June 2007

Application for Stay of Execution — where Court of Appeal gave judgment in favour of the respondents — where applicant seeks special leave to appeal to the High Court — whether the balance of convenience favours the granting of a stay of execution — HELD: orders numbered 1(c) and (d) of orders of this Court made 23 March 2007 be stayed pending determination of application to High Court for special leave to appeal from that judgment — the stay be discharged if that application is dismissed — if special leave is allowed, those orders be stayed pending the outcome of the appeal to the High Court, such stay being conditioned upon the applicants for special leave and appellants if leave be granted prosecuting hereafter without any delay caused by them the application for special leave and appeal respectively — liberty to apply granted.

Hall v R H & C E McColl P/L [2007] QCA 182; Appeal No 11027 of 2006, 1 June 2007

General Civil Appeal — where appellant injured himself in Queensland — where appellant had been employed by NSW respondent company — where appellant sought compensation — where respondent applied to strike out claim and statement of claim for want of prosecution — where learned judge struck out claim — whether discretion to strike out was properly exercised — HELD: appeal dismissed — appellant to pay the respondent’s costs assessed on the standard basis — appellant’s solicitors to promptly provide the appellant with a copy of these reasons.

Cth DPP v Hart & Ors [2007] QCA 184; Appeal No 1952 of 2007, 1 June 2007

Application for Leave s 118 DCA (Civil) — where Cth DPP filed an application seeking a pecuniary penalty order against Hart on 17 July 2006 — where restraining order under the Proceeds of Crime Act 2002 (Cth) was made 8 May 2003 pursuant to s 17 of the Act — where the property covered by the restraining order was said to be in Hart’s “effective control” — whether “benefits derived” should be assessed from the six years preceding 8 May 2003 or 17 July 2006 — whether failure to “specify” each item of property in the restraining order meant that the property was not “covered by” the restraining order — interpretation of s 121(4)(a)(i) — meaning of “covered” — distinction between “covered” and “specified” — HELD: leave to appeal granted — appeal allowed — orders made by learned primary judge set aside — first respondent to pay the appellant’s costs of the application at first instance and of the application for leave to appeal and of the appeal.

Kenny v Nominal Defendant & Ors; Anderson v Kenny & Ors [2007] QCA 185; Appeal Nos 8945, 10170, 8946 and 10169 of 2006, 5 June 2007

General Civil Appeal — where matter arises out of a collision between two unregistered motorcycles in March 2004 — where one bike was ridden by Carl Anderson carrying Paul Kenny as a pillion passenger — where other bike owned and ridden by Clinton Anderson, carrying Heather Brooker as a pillion passenger — where both riders were unlicensed — whether Carl Anderson and Paul Kenny contributed to their injuries by not wearing properly fastened helmets — whether it was open on the evidence for the trial judge to find both riders were wearing properly fastened helmets — whether learned judge properly apportioned liability between Clinton and Carl Anderson — whether the finding that Carl believed he had his father’s authority to ride the motorcycle was inconsistent with the finding that Carl did not in fact have his father’s authority to ride the motorcycle — whether the findings gave rise to defences under s 4G(1)(a) and s 4G(1)(b) Motor Vehicles Insurance Act 1936 (Qld) for William Anderson as owner and Carl Anderson as rider of the motorcycle, against the appellant’s claim for recovery of debt — where both motorcycles involved in the accident were uninsured — whether the provisions of the now repealed Motor Vehicles Insurance Act 1936 (Qld) applied at the time of the accident — whether the repeal of that Act and the enactment of the Motor Accident Insurance Act 1994 (Qld), specifically the transitional provisions in s 104 and s 106, had the effect of extinguishing the appellant’s claims and were consistent with s 20(2), s 20(3) and s 20(4) Acts Interpretation Act 1954 (Qld) — where Paul Kenny’s future economic loss was discounted by 20 per cent — where no discount was applied to past economic loss — where the appellant claimed that both warranted a discount of 25 per cent — whether past economic loss should be discounted — whether future economic loss should be discounted further — where administration costs were awarded — where appellant contends that a less expensive administrator was available and therefore a reduction in the award of administration costs was warranted — whether trial judge erred in appointing the administrator and awarding costs accordingly — where Paul Kenny was awarded costs of both the claim and counter-claim on an indemnity basis — where that order was made because of his pre-trial offers to the appellant to settle — where those offers were not made strictly in accordance with O 26 Supreme Court Rules — where Paul Kenny was affected by intellectual disabilities — whether his capacity was so impaired that the pre-trial offers were not capable of acceptance without sanction by the court — whether the pre-trial offers were consistent with the spirit of O 26 Supreme Court Rules — whether the order for indemnity costs was within the proper exercise of judicial discretion — where the judge was entitled to find that the headlight on the motorcycle was illuminated at the time of the accident (twilight) — where appellant contended that apportionment of liability at 70/30 was in error — whether apportionment of liability should be disturbed — HELD (8945/06): appeal allowed — the amount of $879,181.68 ordered to be paid to Paul Joseph Kenny on 20 September 2006 is reduced to $822,955.68 and the amount ordered to be paid to him for administration and management fees on 27 October 2006 is reduced from $238,165 to $222,923 — no order as to costs other than the appellant, the Nominal defendant, is to pay the second respondent’s, William John Anderson’s, costs of the appeal to be assessed — HELD (10170/06): the appeal against the costs orders made on 27 October 2006 is dismissed with costs to be assessed — HELD (8946/06): the appeal against the amount ordered to be paid to Carl Robert Anderson on 20 September 2006 is dismissed with costs to be assessed — HELD (10169/06): the appeal against the amount ordered to be paid to Carl Robert Anderson for administration and management fees on 27 October 2006 is dismissed with costs to be assessed.

Johnston v Jewry & Anor [2007] QCA 188; Appeal No 11352 of 2006, 8 June 2007

General Civil Appeal — where appellant offered to purchase the first respondent’s residential property — where first respondent accepted offer by having the second respondent real estate agents execute the contract document and having it and other documents sent to the appellant’s solicitors — where s 366(1) Property Agents and Motor Dealers Act 2000 (Qld) provided that “a relevant contract must have attached, as its first or top sheet,” a form 30c warning statement — where failure to attach warning statement, or where the warning statement is of no effect under s 366(4), gives the buyer an entitlement to terminate the contract at any time before settlement — where the appellant purported to terminate the contract prior to settlement on the basis of the respondent’s alleged failure to attach the warning statement as the first sheet — where the respondent rejected the purported termination — where an employee of second respondent gave evidence that the form 30c was signed by the appellant before execution of the formal contract — where learned judge rejected the appellant’s evidence concerning the order of the documents when he signed — where this finding was not challenged on appeal — where, after execution of the formal contract by seller, the employee of the second respondent sent to the solicitors for the appellant and first respondent, a bundle of documents stapled together in the following order: form 27b, form 30c and contract — where appellant contends that PADM requires the warning statement to be attached as the first or top sheet when the seller returns the executed contract to the buyer — where legislation was ambiguous — where Act subsequently amended to clarify ambiguous sections — whether relevant provisions were complied with — whether term “contract” as it appears in s 366(1) means “proposed contract” or “concluded contract” — whether the appellant was entitled to terminate the contract and receive a refund of deposit monies — whether amendments can be used to ascertain the original intention of parliament — proper time for warning statement to be attached as first document — HELD: appeal dismissed — appellant to pay the first and second respondents’ costs of and incidental to the appeal to be assessed.

Australand Land and Housing No 5 (Hope Island) P/L & Ors v Gold Coast City Council; Fish Developments (Hope Island) P/L & Ors v Gold Coast City Council [2007] QCA 189; Appeal No 10615 and 10616 of 2006, 8 June 2007

General Civil Appeal — where council levied the respondents with the Hope Island Canal Infrastructure Special Charge, purportedly imposed under s 971 Local Government Act 1993 (Qld) — where charge imposed related to the construction of the new Hope Island canal systems and associated infrastructure works — where rateable land other than that charged also benefited from the construction — whether the appellant was entitled to impose the rate or charge upon the respondents only — HELD: appeals dismissed — appellants to pay the respondents’ costs of the appeal assessed on the standard basis.

Angus v Conelius & Anor [2007] QCA 190; Appeal No 11131 of 2006, 8 June 2007

Application for Extension of Time/General Civil Appeal — where appellant was injured in a motor vehicle accident — where respondent issued the appellant with a request for information pursuant to s 45 Motor Accident Insurance Act 1994 (Qld) — where appellant rejected the request — where respondent applied for an order requiring compliance with the request — where learned judge made order — whether giving the order was proper — nature of discretionary power under s 50 of the Act — HELD: application for an extension of time granted — appeal dismissed — appellant to pay the respondent’s costs assessed on the standard basis.

Cousins Securities P/L & Ors v CEC Group Ltd & Anor; CEC Group Ltd v Cousins Securities P/L & Ors [2007] QCA 192; Appeal Nos 9793 and 9794 of 2006, 8 June 2007

General Civil Appeal — where appellant entered joint venture with the first respondent — where appellant repaid debt owing on land purchased by the joint venture and the mortgage was assigned to them — where first, second and third respondent lodged a caveat against registration of any instrument over the land — whether the respondents failed to start proceedings to establish the interest claimed under the caveat within 3 months as required under s 126(4) Land Title Act 1994 (Qld) — whether caveat lapsed — whether starting a proceeding to establish an interest under a caveat requires the relief to be stated in the claim and not merely the statement of claim — whether learned judge erred in finding there was a serious question to be tried — whether the interest held by the respondents could be considered conditional — whether the respondents possessed a caveatable interest — where the caveatable interest claimed by the respondents was 2,521square metres — where caveat forbade registrations of any instrument over the whole of lot 9 (746.1 hectares) — whether the caveat was too wide in scope — whether the judge’s failure to require an undertaking as to damages constituted an error — where primary judge refused to strike out various paragraphs of the amended claim — where primary judge gave leave to the respondent to re-plead generally — whether the learned judge erred in so doing — HELD (9793/06): appeal dismissed with costs — HELD (9794/06): appeal allowed to the limited extent of varying the Order of 31 October 2006 by adding at the commencement of para 1 of that Order the words: “Upon the undertaking of the first respondent Cousins Securities Pty Ltd ACN 080 152 914 and the second respondent Russell Kingsley Cousins and the third respondent Colleen Judith Cousins as to the damages in the usual form…” — appeal otherwise dismissed with costs.

Haug v Jupiters Limited t/a Conrad Treasury Brisbane [2007] QCA 199; Appeal No 3006 of 2007, 15 June 2007

General Civil Appeal — where respondent was injured at appellant’s premises whilst being removed by security guards — where learned judge made interlocutory orders under s 27(1)(a)(i) and s 27(1)(b)(i) Personal Injuries Proceedings Act 2002 (Qld) for disclosure of certain documents and information — where orders did not expressly exclude from production documents over which legal professional privilege could be claimed — whether absence of express exclusion meant that privilege could not operate — whether there was inconsistency in the orders — whether the orders for production of documents made were inconsistent with the purposes of the Act — whether orders went beyond the terms of s 27(1)(a) — HELD: appeal allowed — Order No 1 of 22 March 2007 varied to exclude the references therein to paras 1, 5, 6 and 7 of the solicitor’s letter of 17 January 2007 — Order No 2 of that same day varied by the deletion therein of the reference to para 11 of the solicitor’s letter — respondent to pay the appellant’s costs to be assessed on the standard basis.

Charles & Howard P/L v Redland Shire Council [2007] QCA 200; Appeal No 8518 of 2006, 15 June 2007

Application for Leave Integrated Planning Act — where director of Harridan P/L is hoping to build family home on a certain block of land at Victoria Point — where Harridan P/L entered conditional contract for the purchase of the land — where the applicant company has an interest in the land — where under the council’s 1988 Planning Scheme the land is zoned Residential A but under 1998 Strategic Plan the preferred dominant land use is Special Protection Area, not Urban Residential — where development approval was required as building on desired site would require fill — where applicant, in November 2005, made a development application indicating their preferred site — where council’s approval was conditional upon the applicant placing the fill on a different location on the site — whether the conditional approval was unreasonable — whether the condition had the effect of significantly altering the development application — whether conditional approval, in effect, amounted to a refusal of the development application — where judge made determinations under the 1988 Planning Scheme (the scheme in force at the time of the development application) — where judge also considered provisions of 2006 Planning Scheme in force at time of appeal — whether the learned judge erred in construing the planning instruments and placing partial reliance on the 2006 Planning Scheme — where learned judge found that the fill the subject of the development application was not “of a minor nature” — whether it was open to the judge to make this finding — where judge undertook a comparative analysis of the merits of the competing sites — whether judge erroneously applied a “best sites” test — whether learned judge erred in considering evidence of climate change — HELD: application for leave to appeal refused with costs.

Montgomery & Ors v Pickard & Ors [2007] QCA 203; Appeal No 151 of 2007, 22 June 2007

General Civil Appeal — where first plaintiff initially claimed against the defendants for damages/equitable compensation arising from negligence, negligent/fraudulent misstatement, breach of fiduciary duty, and under the Trade Practices Act — where first plaintiff successfully applied to join the second and third plaintiffs to the proceedings after expiration of limitation period — where learned judge ordered the action by the second and third plaintiffs “be taken to have started when the amended statement of claim is filed” — where plaintiffs contend that the action should be taken to be started from when the original proceedings started — where learned judge found defendants suffered prejudice as a result of the delay — whether discretion of learned judge miscarried — HELD: appeal dismissed with costs.

Haraba P/L v Castles [2007] QCA 206; Appeal No 10612 of 2006, 22 June 2007

Application for Leave s 118 DCA (Civil) — where applicant was owner of resort consisting of manufactured home sites, holiday cabin sites, caravan sites and communal facilities — where respondent entered site agreement with applicant for use of site 42 as a manufactured home site — where the agreement was under the ambit of the Manufactured Homes (Residential Parks) Act 2003 (Qld) — where under the Act the “owner’s” rights under the agreement continue until terminated — where right’s conferred are contractual in nature — where applicant applied to the Commercial and Consumer Tribunal for an order terminating the agreement — where applicant proposed a change of use of site 42 from a manufactured home site to a holiday cabin site — whether particular site was a “part of the park” for the purposes of s 38(1)(f) of the Act — whether the applicant intended to use a defined part of the park for “another purpose” — whether s 38(3) mandates a new town planning approval — whether leave should be granted — HELD: g rant leave to appeal — allow the appeal and set aside the orders of the Tribunal that the application be dismissed and of the District Court that the appeal to that court be dismissed — remit the matter to the Commercial and Consumer Tribunal for the application to be heard and determined according to law — set aside the order of the District Court that the applicant pay the respondent’s costs of the application and appeal to that court — order that the respondent pay the applicant’s costs of the application and appeal to the District Court and of the application and appeal to this court to be assessed — grant the respondent an indemnity certificate pursuant to the Appeal Costs Fund Act 1973 (Qld) with respect to the costs ordered to be paid to the applicant.

Elesanar Constructions P/L v State of Qld [2007] QCA 208; Appeal No 503 of 2007, 22 June 2007

General Civil Appeal — where Elesanar was the owner of land on the Gold Coast —where the State sought to acquire the land for the purposes of extending the current Brisbane to Robina train line — where parties entered contract for sale containing a number of special conditions including a lease back of the property — where a lease was subsequently executed — where cl 4 of the lease provided the tenant with an option to renew — where cl 6 provided the circumstances in which notice could be given to exclude the operation of cl 4 — where the state gave notice under cl 6 — where Elesanar remained in possession — where notice to quit later issued — where Elesanar purported to exercise the option under cl 4 and sought declarations to uphold its position — where state counter-claimed for delivery up of possession — where state applied under r 483(1) UCPR for determination of the question of whether cl 4 gave a right to renew the lease for one further term or for more than one further term — where ordinary meaning of the words of the contract would suggest the creation of a perpetually renewable lease — where learned judge relied on legal authority as creating a presumption that an option clause will not be construed as creating a lease in perpetuity unless it is clear that the parties intention was to do so — where judge made reference to surrounding circumstances in construing the agreement — where declaration made that cl 4 was only for one further term — whether the option clause was capable of creating a lease in perpetuity — whether surrounding circumstances, objectively construed, displaced the effect of the ordinary meaning of the words — whether the question as to the construction of cl 4 was appropriate for summary determination — whether upon proper construction of the lease, cl 4 should have been held to give rise to a lease renewable for more than one further term — whether the learned judge erred in failing to consider a number of surrounding circumstances in assessing the objective intention of the parties — whether it was appropriate to construe the lease by reference to a legal presumption against creation of perpetually renewable leases — where a letter before the court gave evidence of the subjective intention of parties — where the letter was in materials before the primary judge but not referred to nor relied on by the parties — where Elesanar sought to rely on the letter on appeal as giving evidence of the actual intention of the parties — whether this evidence was admissible, being within the exception to the general rule articulated in Codelfa — whether this evidence was properly before the court — whether Elesanar’s case on appeal was inconsistent with that argued below — overview of principles relevant to contractual construction — HELD: appeal allowed — set aside para 3 of the order of Muir J made on 21 December 2006 and in lieu thereof, declare that the option contained in cl 4 of the lease dated 24 May 2002 was an option for renewal for more than one further term of one year — unless within seven days of the date of this order either party files submissions seeking some other order as to costs: (a) 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 and including 21 December 2006 to be assessed; and (b) order that the respondent pay the appellant’s costs of and incidental to the appeal to be assessed.

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211; Appeal No 842 of 2007, 27 June 2007

General Civil Appeal — where appellant is a professional surfer — where appellant suffered personal injury in a motor vehicle accident and sued for damages — where issue at trial was amount to be awarded for economic loss suffered as a result of the injuries — where other heads of compensation were agreed upon — where assessment of degree of probability of success on international surfing circuit was required — where learned trial judge made an assessment of $35,000 for past and future economic loss — whether findings of learned trial judge were open on the evidence — whether assessment of $35,000 was manifestly inadequate — whether assessment should have included lost prize money — whether explanation of assessment complied with s 55(3) Civil Liability Act 2003 (Qld) — HELD: appeal dismissed — appellant to pay the respondent’s costs of the appeal.

EPAS Ltd & Ors v AMP General Insurance Ltd [2007] QCA 212; Appeal No 2650 of 2007, 27 June 2007

General Civil Appeal & Miscellaneous Application (Civil) — where ASIC, exercising its power under s 50 ASIC Act 1989 (Cth), caused two separate proceedings to be brought in relation to restoring a superannuation trust fund — where EPAS (the former trustee company of the trust fund in question) is plaintiff in one proceeding and defendant in the other — where TCSSL (the successor trustee company) is plaintiff in the other proceeding — where ASIC engaged lawyers and instructs them on behalf of the plaintiffs in both matters — where the lawyers therefore act for EPAS in one matter and “against” EPAS in the other matter — where AMP (the insurer of the trustee companies and the eighth defendant) applied to the Supreme Court requesting the exercise of its inherent jurisdiction to control officers of the Court to prevent the lawyers acting for both plaintiffs — where the lawyers act on the sole instruction of ASIC — where the Court was not invited to review ASIC’s decisions — where s 50 requires consideration of public interest — whether the Court should exercise their power to restrain lawyers acting for EPAS as plaintiffs — the test to be applied to determine whether proceedings are affront to the due administration of justice — factors to consider in determining “public interest” — whether the lawyers should be joined as parties to the appeal — HELD: appeal dismissed — appellant to pay EPAS’ costs assessed on the standard basis — appellant’s application for joinder dismissed — appellant to pay costs of respondents to joinder application on the standard basis.

CRIMINAL APPEALS

R v Kolb [2007] QCA 180; CA No 29 of 2007, 1 June 2007

Sentence Application — where applicant sentenced to 12 months imprisonment for one count of dangerous operation of a motor vehicle and two serious assaults — where applicant further sentenced to four years imprisonment cumulative on the first term, with a parole eligibility date of 9 August 2008, for two counts of malicious act with intent — where applicant contends that sentence was manifestly excessive not because of the head sentence but due to the parole eligibility date — where error in declaring pre-sentence custody as custody did not relate solely to the charges on that indictment — whether mitigating factors properly considered in exercising sentencing discretion — whether sentencing discretion should be re-exercised — HELD: allow the application for leave to appeal — set aside sentence imposed at first instance — substitute a sentence of four and a half years imprisonment with a parole eligibility date set at 9 February 2008.

R v Blenkinsop; R v Blenkinsop [2007] QCA 181; CA Nos 24 and 25 of 2007, 1 June 2007

Sentence Application — where applicants carried out a home invasion in part to gather information about a suspected paedophile ring — where applicants pleaded guilty to one count of burglary with a circumstance of aggravation, two counts of deprivation of liberty, one count of common assault and one count of stealing — where first applicant sentenced to five and a half years imprisonment with two years concurrent for the remaining counts — where first applicant pleaded guilty to five counts of receiving and one of fraud on a separate indictment and was further sentenced to two years imprisonment to be served concurrently — where second applicant sentenced to four years imprisonment suspended after 12 months with an operational period of five years on the burglary count, with lesser concurrent sentences for other counts — where first applicant and second applicant were 23 and 18 years old respectively at the time of the offences — where first applicant had a criminal history with conviction for a comparable offence — where second applicant had no prior convictions, had a wife and family and showed good prospects of rehabilitation — where first applicant submitted that the sentence was excessive having regard to the totality principle — whether sentences were manifestly excessive — HELD (first applicant): application for leave to appeal against sentence dismissed — HELD (second applicant): application for leave to appeal against sentence allowed — set aside sentence of four years imprisonment on the burglary count and substitute a sentence of three years imprisonment with a parole release date fixed at 24 October 2007 — on remaining counts, leave in place the sentence of two years imprisonment to be served concurrently with the sentence on the burglary count, but set aside the order for suspension and instead fix a parole release date of 24 October 2007.

R v Sheedy; ex parte A-G (Qld) [2007] QCA 183; CA No 46 of 2007, 1 June 2007

Sentence Appeal by A-G (Qld) — where respondent pleaded guilty to dangerous operation of a motor vehicle causing death whilst adversely affected by an intoxicating substance, driving while unaccompanied with a learner’s permit and failing to display learner’s plates — where respondent sentenced to five and a half years imprisonment with parole eligibility after 18 months — where mitigating factors considered included remorse, cooperation with authorities, early plea of guilty to an ex officio indictment and reasonable prospects for rehabilitation — where aggravating features included a concerning traffic history, driving after voluntary ingestion of cannabis whilst unaccompanied, the death of two innocent victims, and commission of further offences whilst on bail — whether circumstances permitted such an early parole eligibility date combined with such a lenient head sentence — whether sentence within range — HELD: appeal allowed to the extent of setting aside that part of the sentence recording the respondent’s date for parole eligibility at 7 August 2008 and instead substituting the date for his parole eligibility at 7 December 2008.

R v Gibb [2007] QCA 191; CA No 151 of 2006, 8 June 2007

Appeal against Conviction & Sentence — where appellant convicted of one count of common assault, one count of wilful damage and one count of assault occasioning bodily harm whilst armed — where appellant sentenced to nine months imprisonment on each count, wholly suspended with an operational period of three years, with an order to pay $1,507.25 by way of compensation — where appellant acquitted of second count of assault occasioning bodily harm whilst armed — where offences relate to event occurring on same date — where evidence of complainant largely in accord with evidence given by other witnesses — where crown did not call nor the trial judge direct the calling of the appellant’s wife as a witness — where defence did not request that she be called — where trial judge ruled photographs of appellant’s wife, marked for identification, were inadmissible — where possible defence was that the appellant was acting in defence of his wife — whether failure to call appellant’s wife and failure to admit photographs led to a miscarriage of justice — whether sentence outside appropriate range — HELD: appeal against conviction dismissed — applications for leave to appeal against sentences refused.

R v Ronkovich [2007] QCA 193; CA No 41 of 2007, 8 June 2007

Sentence Application — where appellant convicted on one count of GBH and one count of sexual assault — where appellant sentenced to three and a half years imprisonment with a parole eligibility fixed at 6 December 2007 — where parole eligibility date was unable to be met for administrative reasons outside the appellant’s control — whether sentence imposed on a clear factual error of substance — whether this caused the sentencing discretion to miscarry — whether the sentence was manifestly excessive — HELD: application for leave to appeal granted — appeal against sentence allowed — original sentence set aside and in lieu thereof: (a) vary the sentence of three and a half years imprisonment on count 1 to be suspended after 10 months with an operational period of four years; and (b) substitute the sentence of three and a half years imprisonment on count 2 with a sentence of 10 months imprisonment followed by a probation order of two years.

R v Saub [2007] QCA 194; CA No 27 of 2007, 8 June 2007

Appeal against Conviction — where appellant convicted of six counts of indecent dealing with a child under 12 — where appellant’s counsel at trial cross-examined the complainant about digital penetration not charged on the indictment — where crown had not led evidence of allegation — whether miscarriage of justice occurred — HELD: appeal dismissed.

R v Newman [2007] QCA 198; CA No 63 of 2007, 15 June 2007

Sentence Application — where applicant pleaded guilty to charges of rape, GBH, robbery with violence, burglary and deprivation of liberty — where offences were committed in victim’s home — where victim was an elderly lady and suffered serious physical and psychological harm as a result of the attack — where offender showed little remorse — where degree of callousness was significant — whether applicant’s age (17 years at time of offence) was properly considered as a mitigating factor — whether sentence manifestly excessive — HELD: application for leave to appeal against sentence dismissed.

R v Richwood [2007] QCA 201; CA No 64 of 2007, 15 June 2007

Sentence Application — where applicant pleaded guilty to a number of offences including assault occasioning bodily harm whilst armed, deprivation of liberty, disabling with intent, wilful damage, attempting to destroy property by explosives, attempting to injure by explosives, and extortion with a circumstance of aggravation — where applicant sentenced to 10 years imprisonment on the extortion charge, with lesser sentences on the other charges but with serious violent offence declarations being made — where the extortion offence was not a type of offence for which a SVO declaration could be imposed — whether it was appropriate to attach the global head sentence to the extortion offence — whether the sentence imposed was within range — whether there was a sufficient basis for the making of SVO declarations — HELD: leave to appeal against sentence granted — appeal allowed only to the extent of deleting the declaration as to time spent in pre-sentence custody and substituting the following: “The applicant was held in pre-sentence custody between 24 April 2005 and 2 November 2005 and between 2 May 2006 and 16 March 2007, a period of 510 days, which is declared imprisonment already served under the sentences imposed”.

R v Glattback [2007] QCA 204; CA No 330 of 2006, 22 June 2007

Reference under s 672A Criminal Code — where appellant convicted of murder — where defence based on accident — where appellant’s legal representatives refused to adduce evidence of deceased’s psychiatric history — where appellant consequently did not give evidence — whether evidence of psychiatric history relevant and admissible — whether appellant lost fair chance of acquittal — whether miscarriage of justice occurred — HELD: appeal dismissed.

R v Cannon [2007] QCA 205; CA No 317 of 2005, 22 June 2007

Appeal against Conviction & Sentence — where appellant convicted of one count of trafficking in the dangerous drug, methylamphetamine, and one count of possessing a dangerous drug, methylamphetamine, in excess of two grams — where evidence received at trial from various witnesses who received the benefit of reduced sentences under s 13A Penalties and Sentences Act 1992 (Qld) — where various pieces of evidence were ruled admissible, including evidence obtained through use of a listening device, evidence obtained through execution of a search warrant, and where conversations were admitted under the Tripodi principle — whether evidence properly admitted — whether directions of learned judge in relation to the witnesses’ evidence were adequate — whether verdicts unreasonable — where appellant sentenced to 12 years and eight months imprisonment with a concurrent term of two years imprisonment for the possession charge, with an automatic SVO declaration — whether sentence was manifestly excessive — HELD: appeal against conviction dismissed — application for leave to appeal against sentence refused.

R v WS [2007] QCA 207; CA No 51 of 2007, 22 June 2007

Sentence Application — where applicant pleaded guilty to the murder of his father — where applicant aged 16 years and 6 months at the time of the offence — where applicant sentenced to 12 years detention under provisions contained in Pt 6 Div 11 Juvenile Justice Act 1992 (Qld) — whether learned judge should have made an order under s 227(2) ordering release of the applicant after serving 50 per cent of the detention — whether sentence was manifestly excessive — HELD: application dismissed.

R v Lake; R v Carstein; R v Geerlings [2007] QCA 209; CA Nos 327, 312 and 309 of 2006, 22 June 2007

Appeal against Conviction & Sentence — where appellants were convicted of conspiracy to import cocaine under s 233B(1)(b) of the Customs Act 1901 (Cth) — where appellants discussed plans for the illegal import through telephone conversations which were taped, and conversations captured on a listening device planted in a motel room — where jury listened to these conversations at trial and were also provided with transcripts of the conversations — whether learned trail judge erred in allowing the jury to retain the transcripts during the trial and their deliberations — where defence counsel for Geerlings and Lake submitted that their actions were merely preparatory — where counsel for Carstein submitted he had no actual intention or capacity to import cocaine — whether learned judge properly directed on the inferences that could be drawn on the defence cases as opposed to the crown case — whether this amounted to a lack of balance in summing up — where s 11.5(2)(c) Criminal Code (Cth) requires that a party to that agreement must have committed an “overt act” pursuant to the agreement — where counsel for the appellants sought particulars of the overt acts alleged by the Commonwealth — where crown sought to rely on each phone call as constituting an overt act — where trial judge in summing up explained the requirements of an overt act and listed the matters relied upon by the crown as constituting overt acts — whether trial judge erred in failing to require the crown to provide particulars of the overt acts alleged against the appellants — whether jury should have been directed that it was necessary to agree on the overt act committed pursuant to the agreement — where Lake and Geerlings were sentenced to seven years imprisonment with a non-parole period of three and a half years — where Carstein was sentenced to eight years imprisonment with a non-parole period of four years — whether the sentences should have been reduced to take into account the futility of the scheme — whether Carstein’s lesser involvement should have been taken into account in his sentence — whether the sentences imposed were manifestly excessive — HELD: appeals against conviction dismissed — applications for leave to appeal against sentence refused.