Queensland Law Society

February 2020

Court of Appeal judgments

1–30 November 2019

Civil appeals

State of Queensland v Seltsam Pty Limited [2019] QCA 248, 12 November 2019

Application for Leave s118 District Court of Queensland Act 1967 (Qld) (Civil) – where the applicant, through WorkCover, accepted a claim for compensation and paid statutory compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) to a worker who had developed mesothelioma in the course of his employment with the applicant – where WorkCover brought proceedings under WCRA s207B against the first respondent, a supplier of asbestos, to recover the compensation paid out to the worker – where the first respondent sought to join the applicant as a third party, claiming equitable contribution against it – where the applicant applied to the District Court for summary judgment on the ground there was no cause of action against it – where the application in the first instance was dismissed – where the applicant seeks leave to appeal the orders made in the District Court – where the applicant submits that the proposed appeal involves the question of whether a claim for equitable contribution can be maintained by the first respondent against the applicant for any liability which the first respondent may have to WorkCover pursuant to s207B(7) of the WCRA – where WorkCover pursues a statutory right of action against Seltsam to recover compensation payments made to a worker – where WorkCover cannot bring that claim against the State of Queensland because the statutory right is limited to recovery from wrongdoers other than the employer – where Seltsam’s liability to WorkCover is derived solely from the statutory right to recover the compensation paid out – where it is not a claim for damages, much less a claim based in tort – where WorkCover’s claim is to recover the compensation paid, whereas the state’s liability (if any) would be for common law damages – where the extent of recovery by WorkCover under its s207B(7) claim might be adjusted under s207B(7)(a) by reference to what the common law damages might be, does not alter the fundamental fact that WorkCover’s claim is one to which the state (as employer) could never have been made liable – where the pleaded basis for the contribution is that both the state and Seltsam are liable to the worker, not WorkCover – where of course that had to be so, as Seltsam accepted that the state could not be made liable for the s207B(7) claim – where that serves to emphasise that there is no coordinate liability, and no common burden – where the lack of mutuality is demonstrated by the fact any payment of damages by the state would not discharge the obligation under s207B(7), which is a claim that cannot be brought against the employer – where the discharge by Seltsam does not benefit the state, which could never be made liable for the s207B(7) claim – where the result of Seltsam’s contention would be to compel a result contrary to that for which the statute provides – where the insurer cannot sue the state for indemnity in respect of the compensation it paid yet the claim for equitable contribution made here by Seltsam would achieve that result – where it is a result for which the statute does not provide.

Grant leave to appeal. Appeal allowed. Set aside the orders made in the District Court and in lieu thereof give judgment for the applicant against the first respondent in the Third Party proceedings pursuant to rule 293 of the Uniform Civil Procedure Rules 1999 (Qld). Costs. (Brief)

Legal Services Commissioner v O’Reilly [2019] QCA 251, 15 November 2019

General Civil Appeal – where the respondent was found guilty of professional misconduct concerning defalcations of $268,455 – where the tribunal held that the respondent was not permanently unfit to practise law and, as such, did not remove his name from the Roll – where the tribunal instead made orders that the respondent be publicly reprimanded, suspended from practising for three years and that his next application for a practising certificate be made subject to specified conditions – where the Legal Services Commissioner appealed and seeks that the respondent should be removed from the Roll – where the respondent suffered from a major depressive disorder and physiological dependency on alcohol at the time of offending – where, upon the defalcations being discovered, the respondent cooperated with the investigation and audit and promptly repaid the money – where the Legal Services Commissioner contended that the tribunal erred, as had the tribunal in Attorney General of the State of Queensland v Legal Services Commissioner; Legal Services Commissioner v Shand [2018] QCA 66, in failing to have regard to the wider purposes for the exercise of powers under s456 of the Legal Profession Act 2007 (Qld) (the Act), namely the preservation of the good standing of the legal profession and of the Roll as the court’s endorsement of the fitness of those enrolled – where it is abundantly clear that the tribunal was alive to the need, when considering the purposes served by s456 of the Act, to bear in mind the protective aspect of an order and also the broader purpose of preservation of the good standing of the profession and of the Roll – where in that respect, the tribunal had careful regard to the nature of the conduct in question which, although serious, was not a category of seriousness (such as that of bribing an official) as to indelibly mark the character of the respondent as unfit, when the prism of mental illness in which the conduct occurred was considered and the steps taken to treat that mental illness and alcohol abuse were taken into account, together with the genuine remorse of the respondent – where the tribunal considered that it was a combination of all of those factors that told against a conclusion of probable permanent unfitness such that an order for removal from the Roll was warranted – where the reasoning, conclusion and orders of the tribunal were open to it in the exercise of its discretion under s456 of the Act.

Appeal dismissed with costs.

Bunnings Group Limited v Sunshine Coast Regional Council & Ors [2019] QCA 252, 15 November 2019

Application for Leave Sustainable Planning Act 2009 (Qld) (SPA) – where the applicant sought two alternative development permits for a material change of use to establish a Bunnings Warehouse at Coolum – where the relevant council refused to issue either permit and the Planning and Environment Court dismissed appeals against those refusals – where the applicant seeks leave to appeal against the decision of the Planning & Environment Court – whether the judge misconstrued the relevant planning scheme – whether the judge placed undue reliance upon a previous decision of the Court of Appeal that dismissed a similar application – whether the judge failed to give adequate reasons – whether any error of law consequential to the outcome of the judge’s decision is demonstrated – where the argument for Bunnings challenges, as it must, the primary judge’s statement that the proposed developments were “in fundamental conflict with the intended retail hierarchy set out in the Strategic Plan”, and that the conflict was “even more stark” when the Planning Area provisions in volume 3 were considered – where the arguments for Bunnings include a specific challenge to his Honour’s finding that the proposed developments were not a “showroom” – where clearly this involved a finding, or findings, of fact – where it is argued that within the definition of “showroom”, the meanings of the word “bulky” and the expression “goods…primarily of a bulky nature” take their meaning from the collection of retailing examples given in the same definition – where a related submission is that the meaning of “shop” as defined is similarly affected by the examples of retailing contained within that definition – where it may be accepted that, in each definition, those examples are relevant – where his Honour did not say otherwise, and there is nothing within the primary judgment which reveals a legal error in his interpretation of these provisions – where it is said that this was the result of inadequate reasons being given by his Honour – where, however his Honour did refer to his consideration of the evidence of the floor plan of the Bunnings Warehouse at Noosaville and the photographs of each of the aisles at that place – where his Honour did reveal his reasoning, which was that, upon this evidence, he was not persuaded that the things which would be sold from this site would be “primarily of a bulky nature” – where the present question is not whether that factual determination was correct, it is whether it was wrong in law – where it is not submitted that this was a case where there was no evidence by which the impugned finding of fact, namely that the goods to be sold would not be primarily of a bulky nature, could have been made by the judge – where it is submitted that the primary judge was wrong to hold that there was a significant conflict with the Planning Scheme because of the absence of a Master Plan – where the argument refers to provisions of the Planning Scheme which contemplate that the council will request a development proponent to carry out master planning for a locality, and points out that no such request had been made in the present case – where more generally, it is said that it was impossible to incorporate a Master Plan into an instrument that no longer existed, namely the Planning Scheme (which had become a superseded scheme) – where that argument cannot be accepted – where the provisions for this precinct consistently required a Master Plan if this precinct was to be redeveloped under this scheme – where there was no error in his Honour’s finding that the development was in conflict with the Planning Scheme in this respect – where it is submitted that the primary judge placed undue reliance upon the judgment of this court in Coolum Properties Pty Ltd v Maroochy Shire Council & Ors [2008] QPELR 145 – where that judgment resulted in a refusal of leave to appeal, so that, it is submitted, it did not bind his Honour – where that may be accepted, but the judgment was of persuasive authority and the primary judge could hardly have disregarded it – where as it happens, in his own words, he reasoned in the same way as this court had endorsed – where it is argued that the primary judge failed to give adequate reasons for judgment – where this argument focuses upon what is described as the issue of “need” – where it is said that the submissions for Bunnings to the primary judge on that question were extensive, but the treatment by his Honour of the issue was superficial – where specific contentions do not appear to have been material to the question of whether there was such a need for a Bunnings Warehouse at this site that it should be approved under s326 SPA – where another contention appears to have been that there would be a future increase in demand, resulting in a future need for the development; but his Honour was considering whether there was an existing need which required a departure from the Planning Scheme – where in relation to the final contention, his Honour found that each of the Bunnings Warehouses at Noosaville and Maroochydore could be readily accessed by road in 15 to 20 minutes, which he assessed was not unreasonable for this type facility – where his Honour referred to evidence in support of that finding – where it cannot be said that he did not explain his reasons for rejecting that contention.

In each of these proceedings, the application for leave to appeal is refused with costs.

Hobson & Anor v Taylor & Anor [2019] QCA 265, 22 November 2019

General Civil Appeal – where the second appellant (Hobson) as seller and the second respondent (Wandani) as purchaser entered into a share sale agreement for a half-share in an aquaculture business for $2,500,000 – where the second respondent after paying to the second appellant most of the purchase price purported to terminate the agreement upon grounds that included that it was induced to enter into the agreement by conduct which was misleading and deceptive – where the trial judge found that three representations, concerning the business’s ownership of land, interest in equipment and outstanding debts, were misleading and deceptive and induced the second respondent to enter into the agreement – whether those findings of fact were made without any evidence or upon evidence which was glaringly improbable – whether the trial judge adopted an objective, rather than subjective, test for causation as to whether the representations induced the second respondent to enter into the agreement – where undoubtedly, it was necessary for the respondents to prove that the making of the agreement was induced by one more of these representations – where it was sufficient for them to prove that at least one of the representations was a substantial inducement – where it was not the respondents’ case that it was only by a combination of each and every representation which they had pleaded that they were induced to have Wandani enter into the agreement – where Mr Taylor (the first respondent) gave evidence that he was induced by each of these three representations to have Wandani sign the agreement – where he was without legal or other independent professional advice in respect of this transaction – where he said that he was taken by Mr Hobson (the first appellant) to the solicitors’ office without being told in advance that he would be asked to sign the share sale agreement – where he did sign the agreement on that occasion, because he trusted Mr Hobson, who by then was a friend of some years’ standing – where the nature of each of these representations is such that it is likely to have induced a prospective purchaser to enter into the agreement – where in this sense, each representation was “objectively likely” to have had that effect – where given his Honour’s general acceptance of Mr Taylor as a witness, coupled with that objective likelihood, the case that the share sale agreement was induced by the representations, and, as a result of that agreement, the payments were made, was a compelling one – where there was no error in his Honour’s findings on the question – where his Honour was not obliged to make any order, in consequence of the determination of these issues – where his Honour went too far in then ordering, as he did, that both respondents have judgment against both appellants for damages to be assessed – where Mr Taylor had not entered into the agreement – where only Wandani had done so on his side of the transaction – where Mr Taylor may have suffered a loss by the misleading and deceptive conduct which was found by his Honour, but that was a question for another day – where, as for the liability of Mr Hobson, he had not contravened s52 of the Trade Practices Act 1974 (Cth), on his Honour’s findings – where it was the second appellant which had done so – where Mr Hobson was liable for that conduct if he was knowingly concerned in, or a party to, that contravention of the Act – where that was not one of the questions which was ordered to be tried separately in this trial – where, in the absence of a specific consideration of, and finding about, that issue, the present order against him should not stand – where further, there are other causes of action which are claimed by Wandani, and there is other relief which is claimed for the contraventions of s52 – where it is conceivable that the court would see fit to make orders under s87 of the Act to compensate Wandani, in whole or in part for its loss or damage, or an order to prevent or reduce that loss or damage – where on one view, the effect of the order made by his Honour might be to preclude the availability of that alternative relief in the ultimate disposition of this case.

Appeal allowed. Order made on 17 January 2019 whereby there was judgment for the first plaintiff and the second plaintiff against the first defendant and the second defendant for damages to be assessed be set aside. Otherwise dismiss the appeal. Costs.

Renwick v Parole Board Queensland [2019] QCA 269, 26 November 2019

General Civil Appeal – where the appellant was convicted on his own plea of guilty of being an accessory after the fact to manslaughter and sentenced to five years’ imprisonment, with a parole eligibility date – where the respondent Parole Board refused the appellant’s parole application because it was not satisfied that the appellant had cooperated satisfactorily in the investigation to identify both the location and place of the victim’s remains, pursuant to s193A of the Corrective Services Act 2006 (Qld) – where the appellant applied for a statutory order of review of the respondent’s decision to refuse his application – where the primary judge dismissed the appellant’s application – whether the primary judge erred in reading the definition of “victim’s location” in s193A(8) as entailing two discrete requirements, rather than synonymous and interchangeable terms – whether the primary judge erred in finding that the respondent did not fail to properly consider the appellant’s cooperation after sentence – where there was no error in the primary judge’s application of the presumption that the legislature intended different words, in this case “location” and “place”, to have different meanings – where his Honour’s interpretation of the definition as referring, in the term “location”, to where the remains were in a general sense, while “place” referred to specifically where they might be found, gave the provision a rational meaning – where applying the principle in Kazal v Thunder Studios Inc (California) (2017) 256 FCR 90, the statutory context in which the definition appears is one in which the relevant intent is to locate victims’ remains – where that intention is more likely to be better achieved by a construction of the definition in which “and” has a conjunctive effect requiring satisfaction of both limbs, so that more, rather than less, information is required of the candidate for parole – where there is no necessary sequence to the satisfaction of the two limbs, so the definition is better described as involving a test with two elements, rather than as a “two-stage” test – where it is quite clear that the board was not purporting to read any requirement that the “place” be within the “location” into the definition – where its reference to the place’s being within the identified location related solely to the facts of this case, in which it was reasonably to be inferred that the place where the remains might be found was within the location identified by the appellant – where the board appropriately regarded it as necessary, in considering whether there had been satisfactory cooperation by the appellant, to determine whether the information he provided was credible – where in determining his credibility, lies previously told by him were relevant – where in that regard, it was evident that he had lied either in the claim that the body was cremated or by the lie by omission of any mention of cremation and, indeed, creation of the impression at sentence that the body had been dumped – where the lie by omission and misrepresentation would be material because the information was crucial to any search to be undertaken – where the board was not in a position, because of its doubts as to the appellant’s reliability, to determine whether the account of cremation was true or false, and hence whether it amounted to cooperation – where the difficulty for the appellant was that the Board could not be satisfied that the threshold question of satisfactory cooperation could be met in relation to either of the June 2016 and September 2017 disclosures, because it was unable to be satisfied of the truth of either.

Appeal dismissed. Costs.

Criminal appeals

R v CCJ [2019] QCA 236, Date of Orders: 29 October 2019; Date of Publication of Reasons: 1 November 2019

Appeal against Conviction – where the appellant pleaded guilty in the Childrens Court to eight counts and charges including rape, sexual assault, assault occasioning bodily harm, deprivation of liberty and wilful exposure – where reports tendered to the Childrens Court for the purposes of sentence raised serious issues as to the limited intellectual capacities of the appellant – where no assessment though was made of the appellant’s capacity to enter a plea – where the appellant was sentenced to four years’ detention to be released after serving 70% of the period of detention – where the Attorney-General commenced proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for the purposes of which risk assessment reports were prepared – where the risk assessment reports raised concerns about the appellant’s fitness for trial and fitness to plead – where Dr McVie opined that the appellant’s intellectual disability was such that he lacked fitness for trial – where Dr Harden found significant intellectual disability in the appellant and raised with Crown Law, who instructed him on behalf of the Attorney-General, whether he ought to consider fitness for trial – where he was advised in the negative and therefore expressed no opinion – where the fact that he raised the issue is significant in itself – where consultant psychiatrist Dr Siva Bala and neuropsychologist Wendy Bryant were retained on the appellant’s behalf to examine him and provide reports as to his fitness to have entered his pleas of guilty – where these reports support the findings of Drs Sundin and McVie that the appellant lacked capacity – where the Crown has taken a sensible and pragmatic approach – where there was no objection to the admission of the medical evidence and the Crown agreed that the appeal be allowed and a retrial ordered – where that attitude has assisted in the disposal of this unusual and potentially difficult appeal – where, although it was appropriate to order a retrial, it is likely that the question of the appellant’s fitness to plead will be referred to the Mental Health Court.

Leave granted to adduce the medical evidence. Appeal allowed. Convictions on counts 1 to 6 on the indictment and summary charges 1 to 3 be set aside. Retrial ordered on those counts and charges.

R v Smyth [2019] QCA 239, 5 November 2019

Sentence Application – where the applicant pleaded guilty to one count of attempted entering premises with intent to commit an indictable offence, one count of armed robbery, in company, and one count of unlawfully using a motor vehicle to facilitate the commission of an indictable offence – where the applicant was sentenced to two years’ imprisonment on the count of armed robbery in company and lesser, but concurrent, terms of imprisonment for the remaining counts – where the applicant’s parole release date was set at the three-months mark – where the applicant engaged in offending involving two separate convenience stores, knowing that on each occasion at least one of the male offenders was armed with a baseball bat – where in the case of the armed robbery in company, the applicant entered the premises and actively participated by removing the money from the cash register – whilst the applicant was not armed and was the mother of a very young child, absent identification of a specific error in the sentencing principles, an exercise of the sentencing discretion requiring that the applicant serve a period of actual imprisonment, evidenced neither a misapplication of principle nor resulted in a sentence which was plainly unjust – where an effective head sentence of two years’ imprisonment, with a parole release date after serving three months in actual custody, for such offending was lenient, particularly when regard is had to the aggravating feature of the applicant’s active participation in the armed robbery in company, and the lack of independent evidence of rehabilitation from the use of illicit substances – where a conclusion that such a sentence was lenient is supported by a consideration of the comparable authorities referred to at sentence – whether the sentencing judge erred by proceeding on the basis that any application to Queensland Corrective Services by the applicant to have her infant child accommodated with her in custody would be processed quickly, would be approved and the infant child would be accommodated with the applicant whilst in custody – where there was no factual basis for either assumption and each assumption materially affected the sentencing judge’s consideration of the question of hardship on the applicant’s newborn child, the exercise of the sentencing discretion miscarried in the present case – where consideration of further affidavit material supports a conclusion that there are continuing difficulties associated with an available primary carer, should the applicant serve actual custody, and there is a continued lack of evidence as to the prospects of success of any application by the applicant to have the care of her baby whilst in custody – where those circumstances raise the question of the unusual hardship to be caused to the applicant’s baby on her incarceration – whilst a consideration, such as the practical means of breastfeeding a baby was not relevant in the applicant’s case, an equally practical consideration in the applicant’s case is that as a consequence of her baby being born prematurely, the applicant and her baby had not been together for the first three weeks of the baby’s life – where during that time, the baby was an inpatient in the neonatal unit of the hospital – where that factor was significant, in the context of the letter from the social worker tendered on sentence, as to bonding and attachment being crucial to the emotional wellbeing of the newborn, now that she had been discharged home, and the essential presence of the primary carer to develop that parental relationship.

Leave to appeal granted. Leave to adduce further evidence granted. Appeal allowed. Sentences below be set aside. The applicant be resentenced: (a) On count 1, to 12 months’ imprisonment. (b) On count 2, to 2 years 6 months’ imprisonment. (c) On count 3, to 6 months’ imprisonment. The sentences of imprisonment are to be served concurrently. Convictions are recorded in respect of each count. The applicant’s parole release date is set at the date of these orders.

R v Mansoori [2019] QCA 250, 15 November 2019

Application for Extension (Conviction) – where the appellant was convicted of rape – where the appeal was filed out of time – where the reasons for the delay were credibly explained and not challenged – where attempted rape and sexual assault were logically open as alternative verdicts – where the appellant submits the trial judge erred in failing to direct the jury of the availability of the alternative verdicts – where the appellant’s legal representative wrongly advised the jury there was no natural alternative charge for which the appellant could be convicted – where attempted rape was open because the jury might potentially have accepted the complainant’s account of the appellant non-consensually moving his penis near her vagina and accepted he intended to effect penetration but harboured a reasonable doubt as to whether he succeeded – where sexual assault was open because the jury might potentially have accepted the complainant’s account of the appellant moving his penis non-consensually near her vagina but harboured a reasonable doubt as to whether he was intending to or did effect penetration – where it is clear the object of the defence case as conducted by Mr Winning was to secure an outright acquittal, as distinct from securing an acquittal of rape but a conviction of a lesser offence – where in light of the way the case was run it is difficult to see how that object could have been the product of a choice that can sensibly be described as “forensic” – where indeed, it may not even have been a “choice”, inasmuch as Mr Winning was seemingly unaware of the potential availability of alternative verdicts – where Mr Winning testified before this court that at the time he made the erroneous submission he probably believed it was correct and did not turn his mind to an alternative charge at that time – where the conduct of the defence case did not involve an outright denial of sexual activity – where it made penetration the real issue, while avoiding material challenge to other components of the complainant’s account – where this meant the appellant’s guilt of an alternative, less serious sex offence became a real legal issue in the trial as litigated, even if no one seems to have realised it – where the conduct of the defence case made it easier, by reason of what was not disputed, for the jury to reason the appellant was at least guilty of some non-penetrative sexual offending and thus harder for the jury to accept the appellant should escape punishment – where it was a dynamic which made acquittal of rape a less attractive option for the jury than it would have been had the lesser alternative verdicts also been put – where the appellant’s best chance of acquittal of rape on the case as litigated was that the jury would be satisfied he should be convicted for sexual offending not involving penetration – where the failure to leave the alternative lesser verdicts to the jury deprived the appellant of what was, on the case as litigated, his most obvious potential pathway to a chance of acquittal of rape – where the fair trial of the appellant required that the alternative verdicts be left to the jury – where the trial judge erred in not leaving them, thus depriving the appellant of a chance of acquittal which was reasonably open – where it is not submitted that such an error can be cured by the proviso – where the success of this ground means the conviction should be quashed and a re-trial ordered – where the appellant complains the facts as put to the complainant by Mr Winning were not the facts as instructed by the appellant, thus occasioning a miscarriage of justice – where having regard to the whole of the evidence, and even allowing for credibility concerns about some aspects of the appellant’s evidence, the appellant’s evidence that he did not change his initial instructions to Mr Winning should be accepted – where the appellant has proved on the balance of probabilities that the facts of the defence case as put to the complainant by Mr Winning were not the facts as the appellant instructed them to be – where it was a qualifying ingredient of Mr Winning’s role as the appellant’s agent and his entitlement as a legal practitioner to appear in court for the appellant, that any assertion by him about the true facts was consistent with his client’s instructions about the facts – where that ingredient was missing – where its absence inevitably meant the appellant’s true position was misrepresented, depriving both him and the prosecution of the trial according to law to which they were entitled – where it was properly conceded that, if established, such a fundamental defect left no room for the application of the proviso – where the success of this ground of appeal thus provides a further reason why the conviction must be quashed and a re-trial ordered – where before leaving this ground it is appropriate to acknowledge there are well recognised difficulties inherent in using a criminal appeal to assess the performance of trial counsel and Courts of Appeal seek to avoid such assessments unless it is unavoidable – where the proceeding has been an appeal in an adversarial setting to which Mr Winning was not a party – where he was only a witness – where, consequently, he had no right to make submissions, nor did he have a say in whether evidence from other sources which may have been relevant could or should be led.

Application for an extension of time to appeal granted. Appeal allowed. The appellant’s conviction of rape be quashed. The appellant be retried upon the indictment.

R v Dean [2019] QCA 254, 19 November 2019

Appeal against Conviction – where the appellant was convicted on three counts: count 1, murder; count 2, torture; and count 3, improper interference with a corpse – where the deceased’s remains were discovered charred and scattered three months after he was reported missing – where the deceased had been kidnapped and taken from the Gold Coast to Cooloola Cove by the appellant – where the evidence supported a finding that the deceased was being held for the purpose of discovering where missing drugs or money were kept – where witness evidence indicated that the deceased was assaulted and kept in an fishing esky by the appellant and others – where the assaults and treatment to the deceased was said to include smashing his kneecaps and bones in his hands and cutting off of a finger – where the evidence indicated that the appellant had been present and participated in the assaults upon the deceased – where the subjection of the deceased during his imprisonment to violence and other mistreatment culminated in his death – where the appellant tended a fire pit for two days where clothing and shoes were fed into it – where the appellant burnt the body of the deceased by putting it into a fire pit – where the cause of death of the deceased could not be established – where it was contended that the appellant did not hold the requisite intent to cause death or grievous bodily harm to the deceased – whether the deceased’s death was resultant of the intentional actions of the appellant – where the successful appeal by Stephen Armitage and Matthew Armitage in respect of their convictions for murder has an impact – where it having been determined by this court, albeit in a separate appeal, that it was not open to find that Stephen Armitage or Matthew Armitage had the requisite intent for the offence of murder, there can be no basis upon which the appellant could be found guilty of murder on the basis of being an aider under s7(1)(c) of the Criminal Code (Qld) – where if those whom the appellant was aiding did not hold the requisite intent for the offence of murder, the appellant was merely aiding manslaughter – where, similarly, the common purpose basis under s8 is affected, as the probable consequence is a death caused without the intent necessary for murder – where the appellant was directly involved in the kidnapping and imprisonment of Barker, and his subjection to violence and other mistreatment culminating in his death – where, however, the difficulty which confronts the ability to draw an inference of the requisite intent for the offence of murder, is that the prosecution had to prove that whatever killed Barker was an act done by the perpetrator with an intention to either cause death or cause grievous bodily harm – where in other words, it had to prove beyond reasonable doubt that something done in the mistreatment of Barker caused his death, and that thing was done with the requisite intent – where the difficulty which arises is because the cause of death cannot be proved – where it is therefore simply not possible to say what killed Barker – where true it is that it is tempting to conclude that someone or other of the appellant, Stephen Armitage or Matthew Armitage assaulted him while he was imprisoned with the intention, at least, of causing an injury which would come within the definition of grievous bodily harm – where however, tempting though that may be, it is not possible to do so – where the forensic evidence does not permit it – where nothing can be identified as the cause of death – where it is therefore not possible to identify what it was that killed Barker, and whether that was done with the then held intent to cause death or cause grievous bodily harm – where equally open on the state of the evidence is the hypothesis that Barker died because of a reckless indifference to his welfare – where also open is the possibility that Barker succumbed to his mistreatment because of neglect, even if it was not reckless indifference – where the appellant’s contention was that the appropriate disposition of the appeal against the murder conviction was that a verdict of guilty of manslaughter be substituted and the matter remitted to the trial division for a sentence for that offence – where in doing so, the appellant adopted the reasoning in R v Armitage; R v Armitage [2019] QCA 149 on this issue – where the appellant’s submission is correct insofar as it asserts that there is no material difference in the substantive effect of the evidence at each trial – where in R v Armitage; R v Armitage [2019] QCA 149 this court held in respect of the misdirection on the torture count, which arose at the same trial at that of the appellant, that the appeal should be allowed and that the proviso in s668E(1A) of the Criminal Code did not apply – where the respondent, accepted that for the same reasons the appellant’s appeal on this ground should be allowed and that there should be a retrial on count 2 on the indictment.

Appeal against conviction on count 1 be allowed, the conviction be quashed, a verdict of guilty of manslaughter be substituted, and the matter be remitted to the trial division for the appellant to be sentenced for that offence. The appeal against conviction on count 2 on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count.

R v Pulini; R v Pulini [2019] QCA 258, 20 November 2019

Appeal against Conviction & Sentence – where the appellants were convicted on a plea of guilty of harbouring an unlawful non-citizen – where the appellants were found guilty after a trial of causing a person to enter or remain in forced labour contrary to s270.6A(1) of the Criminal Code (Cth) – where the appellants had brought the complainant into Australia on a tourist visa to work as a domestic servant – where the complainant was expected to work every day, cooking, cleaning, taking care of the appellant’s children and any other task the appellants required – where the complainant was paid for her work by the appellants between AUD $150 and $250 per fortnight – where the amount paid to the complainant was well below acceptable remuneration by Australian standards – where the appellants had taken the complainant’s passport and not returned it until after it and her tourist visa had expired – where the appellants had told the complainant that they had a friend in Immigration that would sort out her visa to allow her to stay permanently – where the complainant was scared of being taken to prison by Immigration after the expiration of her visa – where the appellant wanted to leave but felt she was unable to do so – where the appellant’s actions took advantage of the complainant through an abuse of power and by taking advantage of the complainant’s vulnerability – where each of Mr and Mrs Pulini plainly knew that Ms RM was an unlawful entrant in Australia, as long-term visa arrangements had never been made – where each of Mr and Mrs Pulini must have known, the jury could have found, that Ms RM was concerned about her status, based upon what had happened in 2006, the taking of her passport, the fact that no long-term visa had been arranged, and her expressed concerns at the end of the three-month tourist visa – where in those circumstances, Ms RM continued to be required to perform domestic duties and child-minding while being paid at a rate nowhere near what was normal for those duties – where Mr Pulini well understood that, as demonstrated in his responses during his police interview – where in essence, he simply took the chance, at Ms RM’s expense, that was involved in her staying on unlawfully – where he did that selfishly, because it suited his children – where it was open to the jury to find that he did it selfishly and recklessly, given that he knew her status was unlawful and the payments he was making for her services in no way reflected an adequate reward – where it is also clear, as the jury could find, that Mrs Pulini was aware of what Ms RM was being paid – where the cash amounts were given to Ms RM by Mrs Pulini, and it was Mrs Pulini who said that if she wished to send money back to her family in Fiji, that would done through Mrs Pulini – where it was Mrs Pulini who directed the domestic duties including provision of cooking for the family, and therefore, one could infer, as the jury might, that Mrs Pulini had some reasonable grasp of the amount of money available to Ms RM to achieve the tasks that Mrs Pulini was setting – where the jury could infer that Mrs Pulini was aware that Ms RM was being underpaid, at least from the fact that there was no attempt at any point to pay a proper wage, to provide the wherewithal to access medical and dental needs, or to keep an accounting of what Ms RM was paid or what she spent – where of course Ms RM’s unlawful status explained why there was no attempt to make the arrangement taxation compliant – where each of Mr and Mrs Pulini knew, as the jury could find, that Ms RM’s unlawful status was never resolved – where therefore there was a basis for the jury to accept that each of Mr and Mrs Pulini knew of Ms RM’s non-existent entitlement to remain in Australia and, inferentially based upon what happened in 2006, the prospect of her being forced to leave if her status was discovered – where those acts were such that the jury could find that they were deliberate, and involved coercion through an abuse of power and by taking advantage of Ms RM’s vulnerability – where, further, it was open to the jury to find that their conduct caused Ms RM to continue providing her labour and services – where she did not have any realistic prospect otherwise, given her unlawful status in Australia and the history of being bound to the Pulini family, providing constant domestic services for wages well below what was reasonable – where the appellants seek leave to appeal their sentences on the ground that they are manifestly excessive – where it is contended that the sentencing judge erred by imposing a sentence of five years in respect of each of counts 2, 3, 4, 5 and 6 – where such an error was conceded to have been made by the sentencing judge, in that two days after imposing the sentence the parties were recalled in order to make submissions on that very fact – where her Honour opened that hearing by observing that she had “failed to impose individual sentences in respect of the discrete offending for those other lesser charges”, and that the “over simplification of the sentence that resulted would amount to an error of law” – where ultimately no party supported the proposition that the error could be corrected on a reopening of the sentence under s188 of the Penalties and Sentences Act 1992 (Qld), nor under s19AHA of the Crimes Act 1914 (Cth) – where here the sentencing judge would have imposed two-year terms for counts 2, 5 and 6, and three-year terms for counts 3 and 4 – where none of those counts were for terms of imprisonment that come close to the head sentences imposed on counts 7 and 8 – where as her Honour was at pains to point out below the recalling of the parties two days after the sentence was not for the purpose of interfering with the practical effect of the sentence, but merely to correct the sentences on counts 2 to 6 – where thus the alterations are not material to the two sentences which matter for the purpose of the application by each of Mr and Mrs Pulini – where, however, error being demonstrated, the sentences in respect of counts 2 to 6 should be set aside and on counts 2, 5 and 6 a term of imprisonment of two years should be substituted, and on counts 3 and 4 a term of imprisonment should be substituted – where otherwise the sentences on those counts should be affirmed – where it is contended that the finding and treating as an aggravating factor that the complainant was in forced labour during the period of counts 3 and 5 was incorrect – where it is submitted that the trial judge erred in finding that the appellants intended to cause the complainant to enter and remain in forced labour – where the nature of the harbouring between 2008 and 2013 was not simply permitting Ms RM to stay secretly in the Pulini house, thus avoiding detection by authorities – where the only reason she was there was because of the plan put into effect by the Pulinis, namely to have her outstay her visa and thus be forced into staying on and look after the Pulini children – where the plan worked – where for all the reasons outlined by the sentencing judge, Ms RM was trapped into a position of forced labour – where that was the case from 2008 on – where in those circumstances it was legitimate for the sentencing judge to treat the purpose of the harbouring, namely forced labour, as a factor which aggravated the offence.

In CA 129 of 2019 (Malavine Pulini): Appeal against conviction dismissed. Set aside the sentences imposed on counts 2, 4 and 6, in lieu thereof impose the following sentences: (a) on count 2, two years’ imprisonment; (b) on count 4, three years’ imprisonment; and (c) on count 6, two years’ imprisonment. Otherwise affirm the sentences imposed on counts 2, 4 and 6. In CA 130 of 2019 (Isikeli Feleatoua Pulini): Appeal against conviction dismissed. Set aside the sentences imposed on counts 3 and 5 insofar as they imposed the period of five years’ imprisonment, and substitute in lieu thereof: (a) on count 3, three years’ imprisonment; and (b) on count 5, two years’ imprisonment. Otherwise affirm the sentences imposed on counts 3 and 5.

R v Hanna [2019] QCA 274, 29 November 2019

Appeal against Conviction – where the appellant was convicted by a jury of one count of doing acts that resulted in documents being destroyed, in contravention of s6K of the Royal Commissions Act 1902 (Cth) – where the appellant was an office holder of a trade union and had caused documents pertaining to that union to be destroyed after the establishment of the Royal Commission into Trade Union Governance and Corruption – where the appellant contends that the verdict was unreasonable as the appellant could not have been aware of a substantial risk that the documents destroyed were or may be required in evidence by the Royal Commission prior to Counsel Assisting deciding what evidence would be required – where to have committed an offence in contravention of section 6K(1)(c)(i) of the Act, a person does not need to have knowledge of an actual decision by a Royal Commission to exercise its power to put a document into evidence – where nor does the person require actual knowledge that a particular document has or would be the subject of the Royal Commission’s decision – where the relevant element of the offence is recklessness as to whether the document is one that “may be required in evidence” – where the appellant was aware of the Royal Commission – where he was aware of the notice, which was wide in scope, requiring the production of CFMEU documents dating back to 1 January 2007 – where he was aware that the documents he was directing be destroyed were documents of the CFMEU and its divisions and branches, including documents in boxes brought from the BLF office – where this knowledge was sufficient to satisfy the jury, beyond reasonable doubt, that he was aware of a real possibility, chance or likelihood that some of the documents may be required in evidence by the Royal Commission – where in addition to those circumstances, the jury was entitled to draw an inference that the appellant was aware of a substantial risk that some of the documents may be required in evidence by the Royal Commission from other parts of the evidence – where a person in the position of the appellant does not render their conduct other than reckless by failing to take steps readily available to them and failing to take advantage of advice offered to them, which would allow them to know with greater certainty the nature of the risk they are considering taking.

Appeal dismissed.

Prepared by Bruce Godfrey, Research Officer, Queensland Court of Appeal. These notes provide a brief overview of each case and extended summaries can be found at sclqld.org.au/caselaw/QCA. For detailed information, please consult the reasons for judgment.