Queensland Law Society

March 2020

Court of Appeal judgments

1–31 December 2019

Civil appeals

Flori v Winter & Ors [2019] QCA 281, 3 December 2019

General Civil Appeal – where the appellant commenced proceedings alleging reprisals regarding a letter he wrote to the Crime and Misconduct Commission, which he contended was a public interest disclosure under s15 Whistleblowers Protection Act 1994 (Qld) – where the parties consented to determination of a separate question as to whether the letter was capable of being a public interest disclosure by reference to whether it disclosed “conduct” which was “official misconduct” under ss14 and 15 Crime and Misconduct Act 2001 (Qld) – where the primary judge held the letter did not disclose “conduct” which was “official misconduct” under those provisions – where the appellant contends the question was inappropriate to answer because it did not account for his honest belief on reasonable grounds that he had information that tended to show official misconduct – whether the primary judge erred in failing to answer the question as “inappropriate to answer” – whether the proper construction of s15 Whistleblowers Protection Act required consideration of whether the appellant held, or could have held, an honest belief on reasonable grounds that he had information that tended to show official misconduct – where the respondents’ construction is consistent with the punctuation of the sentence in s15, the division of the second and third clauses of that sentence into separate paragraphs, the separation of those clauses by the word “and”, and the substantial identity between the expression in s14(2) “has information about conduct…specified in sections 15 to 20” and the expression in s15(a) “has information about the conduct” – where taken together, those features support the respondents’ construction that the honest belief on reasonable grounds described in s14(2) concerns only the public officer’s “information about the conduct” identified in paragraph (a) of s15 – where close attention to the statutory text considered in context demonstrates, however, that the respondents’ construction does not reflect the intended meaning of those provisions – where the appellant’s construction derives powerful support from extrinsic material to which his counsel referred; the Electoral and Administrative Review Commission Report on Protection of Whistleblowers dated October 1991 (the EARC Report), the report dated 8 April 1992 of the Parliamentary Committee for Electoral and Administrative Review (the Parliamentary Committee Report), the Explanatory Notes for the Whistleblowers Protection Bill, and the second reading speech in the Legislative Assembly – where, conversely, the respondents’ construction is inconsistent with that material – where the Explanatory Notes for the Whistleblowers Protection Bill 1994 explain why the legislation was necessary by reference to the recommendation made in 1989 in the Fitzgerald Report “that legal protection be given to honest public officials who expose wrongdoing” and refer to the EARC Report – where this ground of appeal should be upheld – where the consequence of that conclusion is that the separate question should have been answered “inappropriate to answer” and the primary judge’s order dismissing the proceeding should be set aside – where the question of whether the letter was capable of being a public interest disclosure was separately determined by reference to whether it disclosed “conduct” that was “official misconduct” under ss14 and 15 Crime and Misconduct Act 2001 – where for present purposes it is sufficient to observe that a serious criminal offence committed by a police officer that is apt to undermine public confidence in the integrity of that police officer is appropriately described as “a breach of the trust placed in” that person as a member of the police force – where the appellant’s letter asserted conduct of that kind, at least in so far as it asserted conduct by two police officers the primary judge found could, if proved, amount to the criminal offence of doing an indecent act in a place to which the public are permitted to have access, which offending, the second paragraph of the letter conveys, was observed by two members of the public who were police officers and involved A using a police car apparently entrusted to him for use in the discharge of his duties as a senior police officer – where the separate question should have been answered “yes” and the appellant’s proceeding should not have been dismissed upon the basis that at least the second paragraph of the letter, which the primary judge held described conduct that could, if proved, be the criminal offence under s227(1)(a) of the Criminal Code (Qld) of doing an indecent act in a place to which the public are permitted to have access, did amount to information about a breach of the trust placed in A and B as police officers, within the meaning of s14(b)(ii) of the Crime and Misconduct Act.

Appeal allowed. Orders made in the Trial Division on 3 and 13 May 2019 be set aside. Order that the separate question be answered “It is not appropriate to answer the question”. Submissions on costs.

R v Barbaro; Ex parte Attorney-General (Qld) [2019] QCA 286, 6 December 2019

Reference under s669A(2A) Criminal Code (Qld) – where the Attorney-General of Queensland referred two points of law to the Court of Appeal under s669A(2A) of the Criminal Code (Qld) (the Code) – where both points raise for consideration the requirements for the giving of a valid official warning for consorting under Part 6A of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA) – where the respondent was charged with habitually consorting with recognised offenders in breach of s77B of the Code – where the charge alleged that, the respondent habitually consorted with at least two recognised offenders, together and separately, and that at least one of the consorting happened after the respondent had been given an official warning for consorting in relation to those recognised offenders – where the official warning for consorting referred to in the charge related to a written notice served on the respondent which named 15 stated persons as recognised offenders – where one of the 15 stated persons was not a recognised offender, as defined in the legislation – where the magistrate ruled that the written document was not a valid official warning and the respondent was, accordingly, found not guilty of the charge – whether the written notice which nominated 15 stated persons as recognised offenders, was a valid official warning under the PPRA – where in interpreting the police power to give an official warning, under Part 6A of the PPRA, it is important to have regard to what is required to be contained within an official warning – where that requirement is not merely that the person be warned they may risk criminal prosecution for consorting in the future with specified recognised offenders – where the official warning must also contain a warning that the stated person is a recognised offender – where another relevant consideration in the proper interpretation of the provisions of Part 6A of the PPRA is the terms of s53BAC(2) of the PPRA, which permits the giving to a person of an official warning for consorting orally although, in that event the police officer must, within 72 hours of giving the warning orally, confirm the warning by giving it in writing in the approved form – where it is also relevant to consider the effects of an official warning for consorting – where that effect is set out in s53BAD of the PPRA – where relevantly, it provides that an official warning for consorting “given in relation to a stated person who is a recognised offender” has effect until the stated person stops being a recognised offender; that an official warning for consorting given orally, which is not confirmed in writing in accordance with s53BAC(5) of the PPRA, stops having effect 72 hours after it is given, and that an official warning for consorting given in relation to a stated person who is not a recognised offender stops having effect 24 hours after it is given – where it is necessary to answer the second question – where it addresses a case to which s53BAD(3) would apply – where s53BAD(3) is to be interpreted according to the meaning which should be given to the expression “official warning for consorting in relation to the offender” in s77B(1)(b) – where the effect of the argument for the Attorney-General is that the following would suffice: “You are officially warned that each of [name of the first offender and name of the second offender] is a recognised offender, and consorting with either of those persons on a further occasion may lead to the commission of the offence of habitually consorting.” – where this is referred to as the “second example” – where in this second example, there are two official warnings which would be given, in relation to a certain person, without the words of warning having to be stated twice – where if in one case, the stated person is not in truth a recognised offender, then the official warning in relation to that stated person, but only that official warning, would cease to have effect under s53BAD(3).

The questions before the court were answered as follows: 1. Do the legislative provisions in Part 6A, Chapter 2 of the Police Powers and Responsibilities Act 2000 (Qld) require that in order that an official warning for consorting to be validly given, a separate official warning for consorting must be given for each separate stated person who is a recognised offender? No.

2. If a validly issued official warning for consorting may refer to more than one stated person as a recognised offender, and an official warning for consorting is given which nominates more than one stated person as recognised offenders but in fact one of those stated persons is not a recognised offender, does the official warning stop having effect in respect of all stated persons 24 hours after it is given, pursuant to s53BAD(3) of the Police Powers and Responsibilities Act 2000 (Qld)? No.

AAI Limited v Caffrey [2019] QCA 293, 10 December 2019

General Civil Appeal – where the respondent was a senior constable in the Queensland Police Service – where the respondent was called to attend a scene where a car had crashed into a tree – where the driver of the car had been driving at excessive speed while intoxicated by methamphetamine, amphetamine and marijuana – where the respondent rendered first aid to the driver who was critically injured – where the driver died soon afterwards – where the respondent was diagnosed with post-traumatic stress disorder as a result of attending the crash – where the respondent sued the appellant insurer pursuant to s52(2)(b) of the Motor Accident Insurance Act 1994 (Qld) claiming that, as a result of the driver’s negligent driving, he suffered psychiatric injury – where the substantial issue at trial was whether the driver owed the respondent a duty of care to avoid causing him the psychiatric harm that he had suffered by reason of his attendance, in the course of his duties as a police officer, at the scene of the crash – where the trial judge held that the driver owed the respondent such a duty – where the trial judge found that the driver had been negligent and that his breach of duty had caused the respondent’s psychiatric injuries – where the appellant submits that the trial judge erred in holding that a duty of care could be owed by a person who causes a traumatic event, not to cause pure psychiatric harm to a person who, in the course of their occupation, are exposed to the highly distressing aftermath of a traumatic event – where the appellant does not challenge the principles governing liability for causing psychiatric harm to rescuers – where the appellant accepts that the respondent had satisfied all those common law requirements – where the appellant submits that the respondent’s status as a police officer denied him a right to recover because of policy considerations which render the foreseeability of injury unreasonable – whether the principles that govern the right of rescuers to recover damages for injuries extends to police officers in the course of their occupation – where over the years defendants have come up with different ingenious arguments for why they should not be found liable for negligently causing injury, physical or psychiatric, to police officers – where the authorities to which reference has been made establish that, provided the usual principles that govern the right of rescuers to recover damages for injuries are satisfied, the fact that a rescuer happens to be a police officer does not constitute a legal bar to liability whether the injury is physical (Haynes v Harwood [1935] 1 KB 146), psychiatric (Jausnik v Nominal Defendant (No.5) (2016) 316 FLR 359) or both (Hirst v Nominal Defendant [2005] 2 Qd R 133) – where further, contrary to the appellant’s submissions, Flanagan J did not fail or omit to consider the relationship between the plaintiff and the negligent driver before deciding whether psychiatric injury was reasonably foreseeable – where his Honour applied the authorities about psychiatric harm suffered by rescuers – where his Honour concluded correctly that, in accordance with the principles established by those authorities, Williams owed a duty to the plaintiff – where the appellant does not allege that there is any error in any step in his Honour’s reasoning in that regard – where the appellant points to no error of fact – where contrary to the appellant’s submissions Flanagan J did not fail to “engage an analysis [sic] of the policy considerations” – where his Honour performed this analysis and rejected the three policy considerations urged upon him – where, except to complain incorrectly that his Honour did not consider these ideas, there is no submission or ground of appeal that says that his Honour’s disposal of them was erroneous.

Appeal dismissed with costs.

Spoor & Ors v Price & Ors [2019] QCA 297, 17 December 2019

General Civil Appeal – where the parties executed two mortgages over land to secure an advance of $320,000 in 1998 – where the appellants brought proceedings in 2017 against the respondents to recover the monies owing and possession of the land secured by the mortgage – where the respondents denied liability for the amount claimed on the basis that the appellants were statute barred from pursuing the action by operation of sections 10, 13 and 26 of the Limitation of Actions Act 1974 (Qld) (LAA) – where the appellants argued that the respondents were unable to plead any defence under the LAA by virtue of clause 24 of each mortgage – where the primary judge rejected the respondents’ submission that it was not possible at law to contract out of the provisions of the LAA – whether an agreement to contract out of the LAA is void and unenforceable as a matter of public policy – whether an agreement that contracts out of the LAA was itself subject to the operation of the LAA – where there appears to be no Australian authority in which separate consideration has been given to whether a contractual provision not to plead a limitations defence entered into for consideration before a cause of action to which it might be pleaded has arisen, is void as against public policy – where, however, judicial observations at the highest level in this country suggest that such a provision is not, for that reason, void – where, as both Mason CJ and Brennan J expressed it in Commonwealth v Verwayen (1990) 170 CLR 394, what is conferred by a limitations statute is a right on a defendant to plead as a defence the expiry of a limitation period – where as such, an individual may contract for consideration not to exercise the right, or to waive it, as a defendant – where there is, as Mason CJ recognised, a public policy that there should be finality in civil litigation – where, however, the legislature has not adopted a course of implementing the policy by excluding individuals from access to the courts once a stated period of time has elapsed after a cause of action has accrued – where to the contrary, the policy has been implemented by permitting such access but conferring a right on a defendant to plead a limitations defence – where significantly, the legislation which implements the policy does not expressly prohibit an individual from contracting in any one of a number of ways with effect that a right to plead a limitations defence would never arise or, if it did, it would not be exercised – where thus, it may be inferred that, from the legislature’s perspective, it is compatible with public policy that an individual have complementary rights to choose not to become entitled in the first place to plead limitations defences or, if so entitled, to choose to not plead them – where a memorandum was filed with the Registrar of Titles which contained clause 24: “The Mortgagor covenants with the Mortgage[e] that the provisions of all statutes now or hereafter in force whereby or in consequence whereof any o[r] all of the powers rights and remedies of the Mortgagee and the obligations of the Mortgagor hereunder may be curtailed, suspended, postponed, defeated or extinguished shall not apply hereto and are expressly excluded insofar as this can lawfully be done.” – where clause 24 is drafted in a way that a statutory provision to which it applies is one “whereby” or “in consequence whereof” powers, rights and remedies “may be defeated” – where, thus, the statutory provision must be a means by which a given result occurs, that it is to say, the power, right or remedy is defeated, in order for it to fall within the clause – where it is the past participle “defeated” in the passive voice that is used in clause 24 to describe the requisite result, namely, that the power, right or remedy may be defeated – where in that way, the clause accommodates conduct by the mortgagor to trigger the operation of the statutory provision with the result that the mortgagee’s power, right or remedy might be defeated – where, as well, the words “may be”, rather than the word “is”, are used to describe the result – where those words have a flexibility that comprehends a decision on the part of the mortgagor whether or not to plead a statutory provision in order for the mortgagee’s power, right or remedy to be defeated by operation of the provision – where there are instances at the highest judicial level in Australia where the effect of a limitations provision when pleaded has been described as “to defeat” a cause of action: Verwayen – where it is concluded that clause 24, according to its terms, does apply to provisions in the LAA by which the enforcement of a right, power or remedy of the mortgagee might be defended by the mortgagor and thereby defeated – where s13 of the LAA provides that an action shall not be brought by a person to recover land after the expiration of 12 years from the date on which the right of action accrued – where it follows that the appellants’ titles as mortgagee will have been extinguished under s24(1) only if the s13 period of limitation has expired in respect of them – where it has not in this case.

Allow the appeal. Set aside the orders made on 12 and 15 April 2019. Written submissions on costs.

Queensland Building and Construction Commission & Ors v Ezra Constructions Pty Ltd & Ors [2019] QCA 304, 20 December 2019

General Civil Appeal – where the third respondent was a director of the second respondent and an influential person of the first respondent – where each respondent held a building licence under the Queensland Building and Construction Commission Act 1991 (Qld) – where the third respondent was a director of another company, which did not perform building work and was placed into voluntary administration in 2014 – where that event made the third respondent an excluded person under the Act and therefore made each respondent’s licence susceptible to cancellation by the appellant commission – where the commission issued notices to the respondents in 2018, beginning the process by which the respondents’ licences could be cancelled – where amendments made to the relevant Act in 2015, if they applied, would not have categorised the third respondent as an excluded person, thereby immunising the respondents’ licences against susceptibility to cancellation – where those amendments also repealed the right of a person to apply to be categorised as a permitted person, which could have been a process by which the respondents avoided the risk of licence cancellation – where the amending Act contained transitional provision relating to rights and liabilities accrued under the Act prior to its amendment – whether the third respondent’s status as an excluded person was preserved – whether the third respondent’s purportedly accrued right to apply for categorisation as a permitted person was preserved – whether the notices under the Act were validly issued – where s57 of the amendment Act did not continue a so-called “categorisation” of a person as an excluded individual – where, rather, it preserved the status of a person as such, namely as an excluded individual for that relevant event – where it provides that someone who was an excluded individual, immediately prior to the amendments, continued to be so after the amendments – where the primary judge considered that the right to apply for categorisation as a permitted individual was a substantive right and that the amendments to the Act in 2015, including the repeal of s56AD, would have a retrospective operation if that right was to be denied – where even if the repeal of s56AD, and the amendment of provisions so as to remove the references to a permitted individual, might be thought to affect an accrued right to apply for categorisation, the legislation unambiguously removed that right – where it did so not only by the terms of s58 of the amendment Act, but also by the absence of any express preservation of the operation of the former s56AF – where on 30 September 2014, Mr Raptis became an excluded individual for a relevant company event, under the then terms of s56AC of the Act – where, after the amendment Act came into force in relevant respects (on 1 July 2015), Mr Raptis continued to be an excluded individual under the former s56AC, as if it had not been amended – where he was still an excluded individual in April 2018, when the commission issued the notices in question – where those notices were validly given under the terms of s56AF at that time.

Appeal allowed. Orders made on 12 March 2019 set aside. Amended originating application dismissed. Costs.

Criminal appeals

R v RBB [2019] QCA 277, Date of Orders: 25 November 2019; Date of Publication of Reasons: 3 December 2019

Sentence Application – where the applicant pleaded guilty to one count of attempted robbery in company, one count of grievous bodily harm and one count of robbery in company with personal violence – where the applicant was sentenced to four months’ detention for the attempted robbery and nine months’ detention for each of the other offences – where the sentences were concurrent and the applicant was to be released after serving 50% of the sentence – where the pre-sentence report tendered on the sentencing hearing proposed a structured program for the applicant under a conditional release order – whether the sentencing judge erred by failing to consider in detail the option of a conditional release order before imposing a detention order – where the respondent conceded the sentencing judge did not expressly identify why the structured program available under the conditional release order was not appropriate, but relied on the concern expressed by the sentencing judge during the course of sentencing submissions that the maximum period for a conditional release order of three months was not sufficient to reflect the seriousness of the offending and the appellant had previously continued to offend whilst subject to a conditional bail program and community-based orders – where even though the sentencing judge’s sentencing remarks were lengthy and detailed in setting out the circumstances of the offending and the applicant’s history of offending and circumstances, there was a failure in the sentencing remarks to engage with the recommendation of the pre-sentence report in favour of a conditional release order and the benefits that such an intensive program may have in preventing further offending by the applicant before imposing detention orders – where the sentencing judge overlooked the obligation on the sentencing judge described in R v SCU [2017] QCA 198 at [81] which has its genesis in s208 and s219 of the Youth Justice Act 1992 (Qld) (Youth Justice Act) – where the applicant therefore succeeded on his ground of appeal that the sentencing judge erred in the application of s208 of the Act which required the applicant to be resentenced – where the applicant had been the subject of probation orders and other community based orders in the past which had not prevented his reoffending, he did experience detention when he was held on remand for a total period of 66 days prior to the sentencing for the subject offences – where he had not, however, been sentenced previously to any period of detention and therefore had not had the opportunity of the intensive supervision available under a conditional release order where the program is tailored for the particular offender – where the pre-sentencing report showed some signs of optimism for the applicant after he commenced engaging again with the Youth Justice Service and undertaking community service – where because of the applicant’s age, the sentencing for the subject offences was his last opportunity to benefit from the provisions of the Youth Justice Act – where it is therefore appropriate to exercise the discretion to give effect to the option provided for in s219 of the Act in all the circumstances applicable to the applicant before imposing a detention order that involves actual custody.

Grant the application for leave to appeal. Allow the appeal. Set aside the orders made on 8 August 2019 to the extent only that they order that the applicant be released after serving 50%of the periods of detention imposed and in lieu thereof order that the periods of detention be suspended immediately and the applicant be placed on a conditional release order, that is attachment ‘C’ to the Pre-Sentence Report dated 7 June 2019, for a period of three months.

Director of Public Prosecutions v TAL [2019] QCA 279, 3 December 2019

Miscellaneous Application – Criminal – where the Director of Public Prosecutions made an application under s678B of the Criminal Code (Qld) (Code) to the Court of Appeal to order a retrial of the respondent for murder – where a woman was found stabbed to death in the bedroom of her flat in 1987 – where the respondent was charged and tried for her murder in 1988 – where the respondent admitted that he had gone with the deceased to her unit and spent time inside the unit on the night she was believed to have been killed – where the respondent said that he could not remember whether he had been in her bedroom on the night – where the respondent provided samples of his blood and hair to authorities – where there were blood stains on a pillow lying with the deceased and on underwear lying in the bedroom – where the pillowcase and underwear were sampled and tested for blood grouping – where the samples were consistent with the blood group of the respondent – where hairs found on the deceased’s jacket and blouse were consistent with the respondent’s pubic hair – where the jury at the 1988 trial found the respondent not guilty of the murder – where after the acquittal it become possible to generate a DNA profile from a sample of blood and compare it to another DNA profile – where the bloodstained samples were tested to produce DNA profiles in 1990, 1999, 2000 and 2015 – where the results showed DNA profiles consistent with that from a sample of the respondent’s blood – where it is common ground that the evidence is “fresh” – where the court may allow the application only if the evidence is also “compelling” and it is, in all the circumstances, in the interests of justice to order a second trial – whether the evidence is compelling – whether it is in the interests of justice to order the respondent be retried for the murder – where the seeming casualness about storage and identification of samples was not due to any unprofessionalism on the part of those who worked in the State Health Laboratory or John Tonge Centre – where it was simply a product of the historical development of the techniques and systems used for DNA analysis for criminal investigation purposes – where Mr Pippia described how, over the course of years, the whole technical process, including the system of record keeping, has become much more sophisticated and dependable than it was, or than it could reasonably have been, when DNA analysis first began – where Mr Pippia was careful to explain something else – where he pointed out that the identification of the respondent’s DNA in the samples of cloth that Ms Bentley had cut from the pillowcase did not mean that the respondent’s DNA that had been extracted by the scientists had come from his blood – where, in summary, although there was indeed blood on the fabric, the extracted DNA identified as the respondent’s may have been extracted from that blood or it might have come from another invisible source contributed by the respondent – where the result is that the prosecution case about DNA, at its highest, can only prove that the pillow found next to the deceased’s body carried bloodstains of the same group as the blood of the respondent and that DNA extracted from the pillow matched the respondent’s DNA and that it might have come from his blood, if the blood was his, but it might equally have come from cells of his other than blood cells – where at the trial the prosecution undoubtedly relied upon the evidence of blood grouping to sustain a conclusion that the respondent had injured himself when he stabbed the deceased – where the problem with that theory was that there was no evidence that the respondent had suffered any injury at all that might have caused him to bleed on the pillow on that night – where, having regard to Mr Pippia’s evidence, the fresh evidence does not go nearly far enough to prove that the respondent killed the deceased – where, if accepted, it only proves that the respondent’s DNA was on the pillow – where in turn, this only proves that the respondent touched the pillow at some point in time or that he had touched something or somebody that later touched the pillow and transferred his DNA to it – where the evidence does not show how or when the respondent’s DNA came to be on the pillow – where there is simply no evidence from which it could be inferred that the respondent deposited some of his DNA onto the pillow in a way associated with the act of murder – where proof of the deposit of the DNA onto the pillow in the course of doing the act of murder is an indispensable intermediate step in the jury’s reasoning to an inference of guilt – where that step must, therefore, be proved beyond a reasonable doubt – where the proof now offered cannot rationally exclude the possibility that the DNA was deposited onto the pillow in innocent circumstances – where the fresh evidence does no more than to reinforce the admitted fact that the respondent had been inside the deceased’s home or bedroom in a way that resulted in some of his DNA being on the pillow – where it does not prove any issue of significance – where the evidence is not probative of the fact that the respondent did the act that constituted the offence – where it is not highly probative of the case against him – where the evidence of DNA comparison in this case cannot be regarded as reliable having regard to inability of any person to testify from direct evidence about the provenance and the handling of the various samples and having regard to the ways in which, having regard to the lapse in time, the prosecution was compelled to fashion its evidence – where it is not necessary to consider whether a new trial would be in the interests of justice under s678F of the Code – where it is enough to remark upon two things – where the underwear that were tested are gone and so the respondent’s advisers will not be able to have them tested – where the scientists who gave evidence about DNA results have no relevant recollection that can be tested by cross-examination – where these are not mere formalities or technicalities – where DNA matching is powerful evidence because, if there has been scientific integrity in the process that leads to obtaining a profile, it is almost incontrovertible – where the inability of a defendant to test that integrity means that there cannot be a fair trial.

Application refused.

R v Gerhardt [2019] QCA 283, Date of Orders: 1 November 2019; Date of Publication of Reasons: 6 December 2019

Sentence Application – where the applicant was sentenced to three years’ imprisonment on a plea of guilty to aggravated possession of methylamphetamine – where, after sentence, the applicant was called as a witness against his co-accused on the indictment – where the applicant was warned he would expose himself to resentence if his evidence varied from the agreed statement of facts tendered at sentence – where the applicant attempted to claim privilege against self-incrimination and was wrongly compelled to give evidence – where that evidence was inconsistent with the aforesaid statement of facts, and this was relied upon as evidencing a clear factual error of substance in order to reopen the sentence, resentencing the applicant to nine months more – whether there was any admissible evidence in support of the application to resentence – whether inconsistency with the agreed schedule of facts amounted to a clear factual error justifying the reopening of the sentence proceeding – whether the alleged error was an error of substance – whether the reopening of the sentence miscarried – where here the prosecution’s unambiguous position, and indeed the judge’s, was that if the applicant did not give evidence in accordance with the factual basis of his sentence he could be resentenced – where this amply demonstrated there was a real risk the applicant was in jeopardy of increased criminal sanction – where in light of some of the applicant’s earlier answers there was no reason to doubt the legitimacy of his concern that his answers would tend to incriminate him – where his claim to a right not to answer questions was properly made on the basis his answers would tend to place him in jeopardy of increased criminal sanction – while there was no objection to the use of the applicant’s evidence in the application to reopen, we can conceive of no forensic reason for the failure to object to the evidence – where the applicant’s privilege claim was legitimately made yet the applicant was compelled to answer – where this was contrary to the common law rule, affirmed in s10(1) Evidence Act 1977 (Qld), that a witness shall not be compelled to answer a question tending to criminate the witness – where that the applicant was compelled to answer the question dispenses with any prospect the applicant waived the privilege he had claimed – where in the present case the answers the applicant gave after being wrongly deprived of his right not to answer them do not fall within some statutory exception permitting their subsequent use contrary to the common law rule – where as a matter of law the evidence of his ensuing answers was inadmissible against him and should not have been received as evidence in the application to reopen – where the prosecution’s application for reopening, made per s188(5)(b) Penalties and Sentences Act 1992 (Qld), was contested – where it was incumbent on the prosecution to satisfy the court that the sentence originally imposed had, as s188(1)(c) requires, been “decided on a clear factual error of substance” – where assuming, contrary to our conclusion above, that the evidence of the applicant at the pre-trial hearing after he had given evidence was admissible in the application, it is not apparent how that evidence established there had been any “clear factual error” in imposing sentence – where the assumed error was that the applicant had been sentenced on the basis he was in joint possession in the context of a joint venture with Cooper and Henry and that basis was wrong because, as he had told the police in the beginning, he had been in sole possession and the others were not involved – where the perception that this meant there had been a factual error in imposing sentence seemingly derived from the prosecution’s misconception, regrettably urged upon the judge, of the status of the so-called schedule of agreed facts – where the fact of sole possession which the prosecution relied upon to assert error in applying for the reopening was a fact the prosecution chose not to press at sentence and which it had known all along had been confessed by the applicant to police – where it was no error of fact that the applicant’s sentence was decided on the basis he was a joint possessor rather than a sole possessor – where it was the result of the informed choices of both parties – where, however, in this case, no circumstance has been identified as to how the sentence could have been decided on a factual error when the parties agreed for the singular purpose of the sentence proceeding that the applicant should be sentenced on the factual basis the applicant was duly sentenced on – whether the applicant was transporting the drugs preparatory to others, not necessarily him, supplying the drug, or preparatory to him alone supplying the drug, could make no substantive difference to penalty – where that is because the applicant was not being sentenced for the offence of unlawfully supplying a dangerous drug – where the mathematical reduction in the number of other criminals who were said to be in possession of this large quantity of drugs at Miriam Vale could not alone, in the context of this case, constitute a change of substance in the level of criminality for which the applicant had already been sentenced – where it follows, if there had been an error of fact, it was not an “error of substance” and thus not an error sufficient to justify the reopening of the sentence – where, upon the footing that a reopening of a proceeding under s188(1) in which a resentence is subsequently imposed under s188(3) is, like the resentence itself, an order falling within the definition of “sentence” in s668(1) of the Code, if the court finds that the order was made without power the court is obliged to quash both the order and the sentence – where in such a case, the “other sentence in substitution therefor” required by s668E(3) is that, in lieu of the sentencing judge’s ruling that the proceeding be reopened, it is ordered that the proceeding not be reopened.

Application for leave to appeal granted. Appeal allowed. Quash the decision to reopen the original sentence proceeding and the resentence imposed on 3 June 2019. In lieu thereof, order that the original sentence proceeding not be reopened. Confirm the orders made in the Supreme Court upon the sentencing of the applicant on 13 May 2019.

R v Lang [2019] QCA 289, 6 December 2019

Appeal against Conviction – where the appellant was found guilty of murder – where the deceased died as a result of stab wounds to her abdomen – where the appellant and the deceased were the only persons in the deceased’s apartment before she was found dead – where it was common ground at trial that the deceased’s death could only have been a result of homicide by the appellant or suicide by the deceased – where the prosecution adduced evidence from the deceased’s psychiatrist that, according to a peer-reviewed article, the suicide rate of females in Australia between 1988 and 2007 was 3.96 deaths per 100,000 population and that 3.76% of those females who suicided used a sharp implement as the means – where that psychiatrist also agreed with a proposition from the prosecutor that, as the rate of suicide amongst people with bipolar was 15 times that of the general population, the suicide rate of females in Australia was about 60 deaths per 100,000 – where the prosecutor in closing submitted that the jury should reject the hypothesis of suicide because, amongst other things, the statistical evidence showed that suicide by cutting was rare – where the appellant’s counsel at trial did not object to the statistical evidence or the prosecutor’s use of it – where the appellant contended on appeal the statistical evidence was irrelevant and misleading and its use was prejudicial – whether the statistical evidence was irrelevant and misleading – whether the admission of irrelevant and misleading statistical evidence about the incidence of suicide and types of suicidal acts together with the prosecutor’s reliance upon that evidence occasioned a miscarriage of justice – where the real difficulty was that the statistical evidence, upon which the prosecution relied, even when considered with the other evidence, had no significance – where taken at its highest, the evidence might provide some indication of the improbability that a female, with bipolar disorder, would eventually take her own life – where even for that purpose, the evidence was incomplete and inexact – where it may be accepted that the evidence indicated that a death, by a self-inflicted knife wound, would be a rare occurrence, even for a woman with bipolar disorder – where in this case, something did occur – where a death caused by a knife wound is itself a rare occurrence, whether the wound is self-inflicted or otherwise – where this event having occurred, there were two hypotheses which had to be considered by the jury – where the prosecution case was that it was very rare for a woman, even with bipolar disorder, to kill herself, particularly by stabbing herself, which, whilst not of itself proving the fact, made it more probable that she had been murdered – where the fallacy in that argument is that the evidence signified nothing about the relative likelihood of the alternative hypothesis, namely that she was murdered – where in a case where the jury had to consider two alternative hypotheses, evidence which was said to indicate the likelihood of one hypothesis could mean nothing without evidence of the likelihood of the alternative – where it was not as if there was evidence that, within a reliable sample of cases where death had been caused by a knife wound, the knife had been used by the deceased in so few cases that, considered with the other evidence, the possibility that it occurred here was almost incredible – where, consequently, there was no logical way to use this evidence to add to the prosecution case – where the appellant’s argument is that the misuse of the statistical evidence may have denied the appellant an acquittal, so that there was thereby a miscarriage of justice, requiring the conviction to be set aside and a new trial ordered – where in our conclusion, that argument should be accepted – where the jury may have been persuaded by the evidence, especially when it came from a professional witness who was referring to a published paper in the Medical Journal of Australia – where it is true that some of this evidence was adduced by defence counsel, and that no application was made to exclude the evidence or for a direction to be given to the jury that it was to be ignored – where those things do not mean that there was no miscarriage of justice from the real possibility that irrelevant but misleading evidence was used to convict the defendant.

The application to adduce evidence be refused. The appeal be allowed. The conviction be quashed. The appellant be re-tried.

R v O’Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld) [2019] QCA 300

Sentence Appeals by Attorney-General (Qld) – where both respondents pleaded guilty to one count of manslaughter and one count of cruelty to a child under 16 – where all offences were domestic violence offences – where all offences concerned the same victim, 22-month-old Mason Jet Lee – where the respondent O’Sullivan was sentenced to nine years’ imprisonment for the manslaughter offence and a concurrent sentence of one year’s imprisonment for the cruelty offence – where the sentencing judge set a parole eligibility date for O’Sullivan of 29 July 2022 and declared 762 days of pre-sentence custody as time served – where the respondent Lee was sentenced to nine years’ imprisonment for the manslaughter offence and a concurrent sentence of 3½ years for the cruelty offence – where the sentencing judge set a parole eligibility date for Lee of 19 July 2019 and declared 936 days of pre-sentence custody as time already served – where the Attorney-General appeals the sentences imposed on both respondents on the ground that they are manifestly inadequate – where the Attorney-General submits that the cases relied upon by the sentencing judges to establish a range of sentences for manslaughter where the victim was an infant did not take into account subsequent significant legislative changes – where a sequence of legislative changes since 1997 puts it beyond question that the legislature has made a judgment about the community’s attitude towards violent offences committed against children in domestic settings – where the amendments constitute legislative instructions to judges to give greater weight than previously given to the aggravating effect upon a sentence that an offence was one that involved infliction of violence on a child and that the offender committed the offence within the home environment – where the significance of these legislative events has to be taken into account when sentencing – where there must be consistency of sentencing but consistency is constituted by the consistent application of principles and not by adherence to a previously established range of penalties in disregard of the applicable law – where the sentences imposed in earlier cases are useful only insofar as they can be used to identify the unifying principles that should be applied – when applicable legislation changes, the laws as changed must be applied faithfully and a previous range of sentencing may no longer be useful – where it might be said that, even without legislative prescription, a sentencing judge would, as a matter of orthodox sentencing practice, have regard to violence and the fact that the victim was a child as relevant factors – where it might also be observed that, even without the changes to the Penalties and Sentences Act 1992 (Qld), it was open to a sentencing judge to delay parole eligibility beyond the statutory default period of 50% of the sentence – where, however, the amendments that have been referred to cannot be regarded as merely declaring the existing law – where on the contrary, as the Minister’s second reading speech to the 1997 statute made clear, the intent of the amendments was to have the matters listed in s9(3) regarded as “primary” – where in aid of this legislative purpose, the existing s9(4), which obliged the court to impose a sentence of imprisonment upon an offender aged under 25 years only when satisfied that no other sentence would be appropriate, was also repealed – where successive governments since 1997 have left these provisions in place – where consequently, these provisions cannot be regarded as being merely declaratory of the pre-existing law and as having no effect upon the legislative status quo – where they were expressly intended to result in sentences that were more severe than those which had been imposed in the past and must be regarded as statutory amendments that were the result of Parliament’s judgment about current community values – where the previous sentencing decisions that were relied upon at first instance to determine the sentences in this case concerned sentences that were imposed under a different statutory regime – where there have been the successive legislative changes to the laws that must be applied in the exercise of the sentencing discretion in these cases – where the range for appropriate sentences that was established by cases like R v Chard; Ex parte Attorney-General (Qld) [2004] QCA 372 can no longer be regarded as useful for purposes of comparison because in none of them were the presently applicable legislative provisions taken into account – where they were also not considered in the sentences under appeal – where weight must be given to the utility of O’Sullivan’s early plea of guilty as a mitigating factor – where, however, he was not prepared to plead guilty upon the basis that he had delivered a blow to Mason which caused the injuries that killed him. He contested the central fact in the case against him – where that contest resulted in the prosecution having to prepare to call child witnesses because it was known to authorities that O’Sullivan put the responsibility for the killing blow upon his 10-year-old daughter – where, consequently, until the morning of the sentence hearing, when O’Sullivan finally withdrew his denial of the Crown case, his plea reflected nothing more than the existence of a strong Crown case of manslaughter by negligence and reflected no acknowledgement of his real misconduct – where the result is that, as the Chief Justice found, there is “some” remorse – where, however, there is not much of it and, having regard to the nature of the offending conduct, it can be given only the slightest weight – where, however, the evidence about the respondent’s state of mind does demonstrate that his risk of reoffending is very low and there has been no suggestion to the contrary – where that is an important matter that must be give its due weight in mitigation of the penalty – where the respondent was attacked by two inmates while in prison – where the attack left him unconscious – where he suffered some serious injuries, including broken bones and a skull fracture – where he had to undergo surgery and a stay in hospital – where he fears that he will be attacked again – where account must be taken of the added suffering of the respondent because he has been assaulted and the greater hardship that is involved by having to serve a sentence in protective custody – where that must function to mitigate his sentence – where in this case, the respondent’s fatal assault on Mason was preceded and then followed by a cruel neglect of Mason’s pain and his self-evidently urgent needs – where the successive amendments to the Penalties and Sentences Act, as well as to the other legislation discussed, demonstrates the community’s deep repugnance and its intolerance of actions which cause the death of a child, particularly one like Mason, whose tender age left him absolutely vulnerable within the respondent’s home and without any chance of being saved from death by the intervention of outside witnesses – where that is one of the reasons why the fact that an offence is a domestic violence offence is an aggravating factor that must be taken into account – where for these reasons, the sentence must serve the purpose of denunciation in a demonstrable fashion – where taking into account the factors in mitigation, particularly the early plea of guilty, the sentence for the offence of manslaughter should be 12 years’ imprisonment – where this takes into account the seriousness of an offence that was constituted by the deliberate infliction of fatal violence by an adult male upon an infant in his care – where the sentence takes into account the utility of the respondent’s plea of guilty and his decision not to contest the facts alleged by the prosecution – where it also takes into account, as an important factor in mitigation, the savage beating that he suffered while on remand – where it takes into account the respondent’s wretched violent upbringing, which is yet another instance that the court has seen of society’s failure to protect a child against violent abuse that has then led, indirectly, but almost inexorably to the child, as an adult, being imprisoned for a serious crime – where it takes into account the fact that it is not possible to reflect these mitigating factors in the most desirable way, by setting an earlier parole eligibility date – where it is usually wrong to attempt to try to put forward a mathematical formula to explain the degree to which factors in mitigation of sentence have affected a penalty that would otherwise have been imposed in their absence – where, however, there are cases in which such an explication serves a purpose – where this is such a case because it is necessary to explain as fully as possible the effect of the legislative changes that have been discussed upon the range of sentences that have been wrongly accepted as a basis for sentencing – where but for the mitigating factors that have been referred to, a just sentence for the offence of unlawfully killing Mason, taking into account the cruelty offence as part of the overall criminality, would have been 15 years’ imprisonment – where Annemaree Lee’s culpability in the offence of killing Mason lay in her neglect of him – where a mother’s neglect of her child, which results in her child’s death, is an appalling offence – where, however, manslaughter constituted by neglect, even when it is the terrible neglect in this case, is not to be compared with an unlawful killing of a child by a deliberate violent act – where in cases of neglect the offender’s personal circumstances can become very important in determining a just sentence – where those circumstances might explain why a mother acted in ways that is so inconsistent with normal expectations – where such explanations may reduce an offender’s moral culpability because it explains the causes of the failures to act that constitute the offence – where in this case, the unchallenged evidence proved that the respondent was simply unable to protect her son against O’Sullivan – while she was sometimes moved to recover her son from O’Sullivan’s custody, his dominance over her meant that she could do nothing without his permission and he refused to give her his permission – where she could change nothing – where the genuineness of the respondent’s remorse for her role in her son’s death and the effect of her guilty plea as evidencing that remorse have not been challenged and rightly so – where a severe head sentence was warranted in this case but an early parole eligibility date was apt to give effect to Lee’s personal circumstances as well as to her early plea and her true remorse, a remorse which is really the permanent burden she will bear because she caused her son’s death – where there was no error made by the sentencing judge in the weight given to mitigating factors – where having regard to the factors that the legislation requires to be taken into account, and having regard to the relative culpability of O’Sullivan and of the respondent, the sentence imposed upon Lee, when compared with the sentence of 12 years’ imprisonment that has now been imposed upon O’Sullivan, was not inadequate and bears appropriate parity to his sentence.

In CA No.232 of 2018 (O’Sullivan): Appeal allowed. Sentences imposed on 30 August 2018 be quashed. The respondent is sentenced to imprisonment for 12 years for the offence of manslaughter. There be no further punishment for the offence of cruelty. In CA No.63 of 2019 (Lee): 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.