Queensland Law Society

October 2019

Court of Appeal judgments

1–31 August 2019

Civil appeals

Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors [2019] QCA 160, 20 August 2019

General Civil Appeal – where the appeal concerns a decision made during the course of a long, complex and ongoing trial – where the appellants as plaintiffs sought, but failed to obtain, leave from the trial judge to adduce new expert evidence from a Mr Hartley – where the trial concerns complaints made by a junior joint venture partner about the conduct of a senior joint venture partner in relation to decisions made in the course of performing a joint venture for the exploitation of a coal deposit – where a pre-trial case management regime imposed deadlines on the parties for filing and serving expert reports, and on experts from each side to attend joint conclaves – where that regime did not provide the appellants a right to submit expert evidence in reply but did provide them an opportunity to contest the respondents’ expert evidence through the provision of joint reports resulting from joint conclaves of experts – where the evidence sought to be adduced rebuts evidence from two of the respondents’ experts and does not reveal any new case – where the appellants’ prosecution of the case has warranted strong criticism – whether the trial judge’s assessment of the relevant likely prejudice to the respondents was incorrect in principle – whether the trial judge erred by not granting leave to rely on additional expert evidence at trial – where his Honour had to assess the relevant prejudice to the respondents by allowing the evidence of Mr Hartley to be given – where, of course, that was not the prejudice which they might suffer by the Hartley evidence being persuasive and important for the outcome of the litigation – where it was the prejudice which would be caused to the respondents, by the imposition of a burden in the conduct of their case, beyond any burden which they had to bear by the case progressing according to the December orders – where there was no relevant prejudice by the Hartley report adding to any burden of the December orders – where any suggested prejudice had to be a relevant prejudice, and it was necessary to assess the extent to which, if at all, the use of the Hartley report would contribute to the respondents’ burden in preparing for and conducting their case, beyond that which they may have borne by the operation of the December orders – where his Honour either failed to identify that the prejudice had to be of that kind, or failed to appreciate the potential operation of the December orders – whether the Court of Appeal should re-exercise the discretion by allowing the appellants to tender the additional expert evidence – where it is accepted that the appellants should have retained Mr Hartley, or some other witness of his level of experience and expertise, at a much earlier stage in the litigation, instead of engaging the experts about whom their lawyers now hold reservations about the witnesses’ expertise and experience – where it must also be accepted that a court should not appear to be too accommodating of litigants who do not prosecute their cases according to the requirements of the rules and the standards which courts rightly require in modern commercial litigation – where those considerations, however, are not decisive, at least in this case, where no significant prejudice to the other parties is demonstrated.

Appeal allowed. Set aside the orders in paragraphs 1 and 3 of the orders made on 18 June 2019. Costs.

Slatcher v Globex Shipping S.A. [2019] QCA 167, 27 August 2019

General Civil Appeal – where the appellant alleged that the Panamanian-flagged ship Regina committed offences by discharging oil into the exclusive economic zone and outer territorial sea off the coast of Queensland – where a complaint and summons concerning the alleged offences and directed to the respondent, a corporation registered in South Korea, was delivered to locations within Australia including the offices of Thynne + Macartney – where the magistrate ruled that the complaint and summons had been duly served upon the respondent – where the primary judge declared inter alia that the complaint and summons had not been served upon the respondent, and that the Magistrates Court has no power to proceed with an examination of witnesses in the absence of service or waiver of the requirement for service – whether the complaint and summons was served upon the respondent – whether the Magistrates Court has power to conduct an examination of witnesses in the absence of service or waiver of the requirement for service of a complaint and summons – where the magistrate relied upon the letter and the subsequent appearance by the respondent’s previously retained solicitor, in circumstances in which the solicitor had obtained instructions about the complaint and summons, as confirmation that the defendant had been served by virtue of its knowledge of the content of the complaint and summons – where focusing upon the particular provisions of the Justices Act 1886 (Qld), s54(1A) requires every summons to be served "in accordance with this Act", s56(1) does not expressly require a summons upon a complaint of an indictable offence by a corporation to be "properly served" in one of the ways described in s56(1)(b), and no provision expressly makes proper service, or even service in accordance with the Act, a condition of the power of justices to conduct an examination of witnesses – where in this context, and taking into account that the evident purpose of those provisions is to ensure procedural fairness and the statutory context that Act is construed as empowering justices to conduct an examination of witnesses upon a complaint of an indictable offence by a corporate defendant, both where the complaint and summons has been served in a way described in s56(1)(b) and where (as in this case) procedural fairness has been afforded to the defendant by virtue of it having acquired knowledge of the content of the complaint and summons in some other way.

Appeal allowed. Set aside the orders made in the Trial Division. Costs.

Criminal appeals

R v Armitage; R v Armitage [2019] QCA 149, 29 November 2018; further submissions received from all parties on 25 June 2019

Appeal against Conviction – where the appellants were convicted of murder, torture and interference with the deceased’s corpse – where the deceased disappeared after stealing drugs – where the deceased’s burnt and partially buried remains were later found not far from the appellants’ property – where an unidentified man was said to have been held and tortured at the appellants’ property in the period between the deceased’s disappearance and the finding of his remains – where the prosecution case was wholly circumstantial – where the prosecution alleged that the appellants were each guilty of murder because they caused the death of the deceased with the requisite intent, aided another in the murder of the deceased, or formed a common intention to prosecute the unlawful purpose of assaulting the deceased, a probable consequence of which was the deceased’s murder – where there was evidence of a common intention of the appellants to assault the deceased for the purpose of getting information about stolen drugs – where the cause of death of the deceased was unknown but it was open to the jury to conclude that someone had killed him – whether it was open to the jury to find that the unidentified man was the deceased – whether there was sufficient evidence to prove that the deceased was killed by a bodily injury inflicted with intent to commit grievous bodily harm or to kill, to the exclusion of all other reasonable explanations – whether it was open to the jury to find that the deceased was killed by an injury inflicted upon him by the appellants, another aided by the appellants, or another in the course of prosecuting an unlawful common purpose with the appellants – whether it was open to the jury to convict the appellants of murder – where the question is whether, upon a review of the whole of the evidence, it was open to the jury to hold that the appellants’ guilt had been proved beyond reasonable doubt – where as is common ground, the prosecution case was wholly circumstantial, so that the circumstances had to bear no other reasonable explanation than that the defendants were guilty – where the particulars referred to a common intention of the two appellants – where in the way in which the case was argued to the jury, without objection from defence counsel, it was said that there was a plan between the two appellants and a Mr William Dean, which was a plan to assault Mr Barker for the purpose of getting information about stolen drugs – where what had to be proved was that, in the prosecution of that unlawful purpose, Mr Barker was murdered and that the commission of such an offence was a probable consequence of the prosecution of that purpose – where, alternatively, to establish that the appellants were guilty of manslaughter, it had to be proved that, in the prosecution of that purpose, Mr Barker was unlawfully killed, and that the commission of an offence of that nature was a probable consequence of the prosecution of that purpose – where the object of the violence was to extract information from Mr Barker, an object that would have been defeated by killing him – where it is not unlikely that Mr Barker was assaulted by someone who intended to cause an injury that constituted grievous bodily harm – where it is also not unlikely that those inflicting the violence were recklessly indifferent to Mr Barker’s condition – where those things were not sufficient to prove the prosecution case – where the prosecution had to prove that what killed Mr Barker was an act done by someone with an intention to, at least, cause grievous bodily harm, and that had to be proved beyond reasonable doubt where, as the cause of death was unknown it was not open to the jury to be satisfied, beyond reasonable doubt, that Mr Barker was killed by an act done with the requisite intent for the offence of murder – where it follows that it was not open to convict the appellants of murder – where the appellants were convicted of murder but the Court of Appeal held that there was insufficient evidence to prove that the deceased was killed with the required intent – where the prosecution had alleged that the appellants were each guilty of murder because they caused the death of the deceased with the requisite intent, aided another in the murder of the deceased, or formed a common intention to prosecute the unlawful purpose of assaulting the deceased, a probable consequence of which was the deceased’s murder – where it is not known whether all of the jurors decided that the appellants were guilty upon the same basis of criminal responsibility – whether it is a pre-condition to the application of an appellate court’s power of verdict substitution that every fact found by the jury be known – whether the verdicts of murder should be substituted for verdicts of manslaughter – where the jury must have been satisfied of proof of the facts of the offence of manslaughter, whether by the path of s7 or that of s8 of the Criminal Code (Qld) – where their verdicts of guilty of murder were unreasonable, only because a necessary element of that offence, namely that the deceased was killed by an act or omission done with an intent to kill or cause grievous bodily harm, was not proved by the evidence – where this is not a case where "the unreasonableness of the verdict depends on the overall quality of the evidence": Spies v The Queen (2000) 201 CLR 603; instead, it was open to the jury to find all elements of the offence charged as established, save for that one element on which the jury’s finding was unreasonable – where consequently, this court may substitute verdicts of manslaughter – where it is then open to this court to sentence the appellants for that offence – where, however, this court has heard no submissions on that question which, conceivably, might require the resolution of some factual question – where the appellants should be sentenced for this offence in the trial division – where Count 2 on the indictment alleged that, on various dates between 9 December 2013 and 11 April 2014, the appellants and William Dean tortured Mr Barker – where the appellants argue that the jury was misdirected, because the jurors were not instructed that, before they could convict of torture, they had to be unanimous about which act or series of acts was or were intentionally inflicted to cause severe pain and suffering – where the respondent concedes that such an instruction was necessary, and that it was not given – where the respondent argues that the convictions should stand by the application of the proviso – where the question is whether, on this court’s review of the evidence, this court is persuaded of the appellants’ guilt – where a fundamental difficulty for the application of the proviso is that this court has not seen or heard the evidence as it was given – where further it is doubtful this would be a proper case for the application of the proviso for another reason – where in Lane v The Queen (2018) 92 ALJR 689, a jury had been misdirected, in a murder trial where either of two acts of the appellant may have caused the death of the deceased, by not being told that they had to be unanimous as to which act had caused death – where the New South Wales Court of Criminal Appeal applied the proviso, but the High Court allowed the appeal and ordered a new trial, upon the basis that the error of the trial judge was one which could been seen to breach the "presuppositions of the trial", so as to be beyond the reach of the proviso.

In both appeals: The appeal against conviction on count 2 (torture) on the indictment be allowed, the conviction on that count be quashed, and a retrial ordered on that count. The appeal against the conviction on the indictment be allowed (murder), 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.

R v Potter [2019] QCA 162, 23 August 2019

Sentence Application – where the applicant was convicted of one count of dangerous driving, one count of assault occasioning bodily harm while armed, and one count of common assault – where the convictions for dangerous driving and occasioning bodily harm while armed were charged as domestic violence offences – where the applicant was sentenced to 18 months’ imprisonment on the dangerous driving count with six months’ licence disqualification, three years’ imprisonment on the occasioning bodily harm while armed charge, and 12 months’ imprisonment on the common assault charge – where the applicant was fixed a parole release date four months after the date of conviction and sentence – where the applicant seeks leave to appeal against his sentences on the basis that they were manifestly excessive, both as to head sentence and the imposition of a period of actual custody – where the applicant argues that the sentencing judge had insufficient regard to the applicant’s youth, his prospects of rehabilitation, and the complainant’s desire that the applicant not go to jail – whether the sentences imposed at first instance were manifestly excessive – whether the imposition of a period of actual custody renders the sentence more excessive than is appropriate in all of the circumstances – where the sentences imposed for the offences of dangerous driving and common assault were too severe – where the former consisted solely of the applicant’s driving on leaving the party at an excessive but unspecified speed – where since that allegation relied on the observation of others at the party, there was no evidence that the driving at speed persisted for any length of time and there were no other particulars of dangerousness – where the common assault did not consist of any actual blow, but rather lifting and pushing of Mr Ward against the utility, although it was of some significance that the latter had done nothing to provoke the applicant’s aggression, but had merely stopped to assist – where those offences standing alone would not have warranted actual custody, but in the context of the inevitable sentence of imprisonment on the remaining count, concurrent lesser sentences were appropriate – where however, both sentences were manifestly in excess of what the facts warranted and should be reduced – where it is not considered that the submission that the head sentence of three years’ imprisonment was of itself excessive has any substance – where the sentence must, of course, be taken as a whole, including the requirement that the applicant serve four months in custody, in considering whether it was manifestly excessive – where generally, it was submitted that the applicant’s personal attributes, lack of criminal history, employment, lack of risk to the community, the fact that the offence was out of character, and the complainant’s desire that he not go to jail should have resulted in a sentence not requiring actual custody – where, however, this was a balancing exercise for the sentencing judge, which he clearly undertook – where the seriousness of the applicant’s offence, driving into and over his partner (having previously expressed an intention to do so) was compounded by the callousness of his failure, having injured her and left her in obvious pain, to seek treatment for her, because of his fear of the consequences for himself – where it is not thought that there is any viable argument that the sentencing judge was not entitled, in a proper exercise of discretion, to regard the applicant’s conduct as so serious as to require some period of actual custody, notwithstanding the mitigating factors and the complainant’s views.

Allow the application for leave to appeal the sentences on counts 1 and 3, and vary those sentences by reducing the period of imprisonment imposed, on count 1 to three months’ imprisonment, and on count 3 to four months’ imprisonment. The application for leave to appeal against the sentence imposed on count 2 is refused. (Brief)

R v Cooney [2019] QCA 166, 27 August 2019

Sentence Application – where the applicant pleaded guilty to attempted unlawful entry of a vehicle with intent to commit an indictable offence, with violence, and two counts of serious assault of police while acting in execution of duty – where the applicant received a head sentence of two years’ imprisonment for one count of serious assault, and 18 months for each of the other counts – where the applicant was delusional as a result of voluntary intoxication and believed the police were in fact Hells Angels – where the offending against police consisted of swinging blows that did not make contact – where the applicant had sustained lacerations and was bleeding when police attempted to restrain him – where the applicant’s blood was inadvertently deposited on the cut hand of a police officer – where there was no circumstance of aggravation – where a victim impact statement from the complainant referred to the psychological stress of fear of HIV contamination – where the sentencing judge had regard to the emotional harm caused to the complainant – where the depositing of blood onto the complainant’s cuts and the emotional harm thereby caused must have been the result of the physical proximity between the police and the applicant during the simultaneous process of assault and restraint – where the depositing of blood and consequential emotional harm would not have occurred ‘but for’ the applicant’s offending against both officers necessitating such proximity – where the events are sufficiently causally linked for it to be said those outcomes occurred ‘because’ of that offending – where it follows the sentencing judge was entitled to have regard to the emotional harm caused by the complaint’s fear of infection as having occurred because of the applicant’s serious assault against the complainant – where nonetheless, it was relevant that the depositing of blood was an unintended and indirect consequence of the offending – where this should have moderated the weight the victim impact was given relative to other considerations on sentence – where the six-month difference between the head sentences imposed for the two charges of serious assault, in which identical offending was alleged, strongly suggests there was no such moderation – where, indeed, it was within the sound exercise of the sentencing discretion to take the emotional harm into account without necessarily imposing different head sentences – where discounting a sentence to allow for mitigating circumstances may be achieved by reducing the time to be served before parole release/eligibility or reducing the head sentence or reducing both – where in the present case, the fixing of a parole release date which was strikingly short in proportion to the head sentence suggests the sentencing judge allowed for all the mitigating circumstances of the case by reducing the parole period – where that was a legitimate approach to take – where, however, a decision to reflect all discounting by fixing an early parole release date cannot logically justify inflating a head sentence beyond an objectively appropriate range – where in the present case the head sentences for the serious assaults exceeded such a range – where collective consideration of relevant cases unequivocally demonstrates the head sentences for the two offences of serious assault simpliciter were manifestly excessive – where it remains to consider the sentence for count 1, attempting to unlawfully enter a vehicle with intent to commit an indictable offence using actual violence – where the parties were unable to locate any relevant comparable authorities for this offence – where the conduct in count 1 must have progressed very substantially towards fulfilment of the foundational element of entry, assessment of the appropriate sentence must proceed on the basis charged, namely that there was only an attempt to enter – where that assessment is in turn constrained by the reduction of the maximum penalty by reason of the offence being charged as an attempt – where it is also relevant to that assessment that the driver was said to have been left bemused by the incident, the violence used involved an attempt to remove rather than to injure the driver and no harm was done to the driver’s person or property – where, further, sight must not be lost of the delusional nature of the applicant’s motivation for committing the offence – while count 1 had the same maximum penalty as counts 2 and 3 it was more serious – where general deterrence looms as an especially important consideration in sentencing for such conduct – where a head sentence of 18 months was disproportionate to the gravity of count 1, which offence was an attempt – where even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing, it was a manifestly excessive head sentence.

Application granted. Appeal allowed. The sentences imposed below are varied only to the extent of reducing the concurrent head sentences imposed: (i) on count 1 to 12 months’ imprisonment; (ii) on count 2 to six months’ imprisonment; and (iii) on count 3 to six months’ imprisonment.