New Judgments and Sentences


Recent Court of Appeal, Supreme Court judgments and sentences:

R v Curtis (No 4) [2018] ACTSC 166 (SCC 92 of 2013)
Uploaded 11 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – breach of good behaviour order – specific deterrence – good behaviour order cancelled – re sentenced – sentenced to imprisonment

R v Howell [2018] ACTSC 155 (SCC 99 of 2017)
Uploaded 11 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – intentionally or recklessly inflicts actual bodily harm – off duty police officer – punches cause fractured cheekbone and nerve damage – general deterrence – denunciation – recognition of harm – period of imprisonment fully suspended upon entering a good behaviour order

R v Twerd [2018] ACTSC 153 (SCC 180 of 2017)
Uploaded 11 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery with axe – theft – attempted aggravated robbery with knife – attempted aggravated robbery in company – dishonestly driving a motor vehicle without consent – serious criminal history – guilty plea – totality of sentences – consideration of s 66 of the Crimes (Sentencing) Act (ACT) – general deterrence – specific deterrence – punishment – denunciation – custodial sentence

R v Ogle (No 2) [2018] ACTSC 126 (SCC 120 of 2017; SCC 121 of 2017)
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – culpable driving causing grievous bodily harm – excessive speed while arguing with partner – limited prior criminal history – offender’s mental health following accident relevant but in the circumstances offers limited support for reduction of sentence – specific deterrence – general deterrence – partially suspend sentence imposed

R v Trezise [2018] ACTSC 135 (SCC 213 of 2017)
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – acts of indecency – acts against children – historical offences – guilty plea – current age and health of offender considered – partially suspended sentence imposed

R v Walters (No 2) [2018] ACTSC 139 (SCC 201 of 2012; SCC 62 of 2013; SCC 57 of 2016)
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – breach of good behaviour order – not suitable for intensive correction order – good behaviour order cancelled – re-sentenced – sentenced to imprisonment for all charges

R v Walpole [2018] ACTSC 138 (SCC 342 of 2017)
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – attempted aggravated robbery – assault occasioning actual bodily harm – limited criminal history – pleas of guilty – general deterrence – specific deterrence – consideration of illicit substance use rehabilitation – sentence of full-time imprisonment

R v Timbrell [2018] ACTSC 136
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – charged with resisting a public official in the exercise of their functions – charge transferred from the Magistrates Court – charge related to other charges – found not guilty in Supreme Court of other charges – Crown application to call additional evidence after advising content to deal with related charge on basis of evidence given during the trial and submissions by opposing counsel – application refused – not satisfied on evidence given at trial that resistance occurred when public official lawfully performing their functions – not guilty of offence charged

R v Will [2018] ACTSC 154 (SCC 86 of 2015)
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aid, abet, counsel or procure aggravated robbery – limited criminal history – guilty plea – sentencing purposes – general deterrence – need for adequate punishment – denunciation – recognition of harm – consideration of s 53 of the Corrections Management Act 2007 (ACT) – custodial sentence

R v Middleton [2018] ACTSC 198 (SCC 283 of 2017)
Uploaded 10 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency with a young person – pleas of guilty

Nchouki v The Queen [2018] ACTCA 28
Uploaded 9 July 2018
CRIMINAL LAW – Appeal – Appeal against conviction – whether primary judge erred in finding electric control devices were designed to administer an electric shock on contact and neither items of medical equipment nor electric prods designed to be used exclusively with animals – whether primary judge erred in not including principles of law and findings of fact on which they relied

Appeal against sentence – whether primary judge erred in accumulation of sentences – whether primary judge erred in failing to take into account the purity of the illicit substances – whether primary judge erred in failing to give necessary effect to the principle of totality – whether primary judge erred by finding that the appellant was motivated by greed – whether primary judge erred in failing to consider alternatives to imprisonment – whether primary judge erred in failing to take appellant’s plea of guilty into account – whether primary judge erred by imposing manifestly excessive or unreasonable or plainly unjust sentence

R v Ellis [2018] ACTSC 196
Uploaded 9 July 2018
CRIMINAL LAW – Evidence – reasons for application granted – application by Crown to adduce evidence of complainant’s sexual activity - application not opposed

Instyle Estate Agents Gungahlin Pty Ltd v Hambrook [2018] ACTSC 195
Uploaded 6 July 2018
PROCEDURE – Costs – Application for security for costs – where the plaintiff is a corporation in the proceeding – whether there is reason to believe that the plaintiff will not be able to pay the defendant’s costs if ordered to pay them

R v Mailau [2018] ACTSC 187 (SCC 301 of 2017; SCC 302 of 2017)
Uploaded 5 July 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand accompanied by a threat – objective seriousness – conditional liberty – weapon – criminal history – Pre-Sentence Report – specific deterrence – general deterrence – driving whilst suspended – imprisonment – disqualification from holding or obtaining a licence

KE v Armstrong [2018] ACTSC 184
Uploaded 5 July 2018
PRACTICE AND PROCEDURE – Appeal against sentence – whether the sentences imposed by the magistrate were manifestly excessive – penalties imposed upon co-offenders – re-sentence

Codmah Pty Ltd v Rice [2018] ACTSC 191
Uploaded 2 July 2018
APPEAL – STATUTORY INTERPRETATION – Workers’ Compensation Act 1951 (ACT), s 35 – where principal contractor deemed liable to pay compensation for injury suffered in the course of employment because the subcontractor employer was not insured in the Australian Capital Territory – whether principal is also an ‘employer’ for the purposes of s 35 and thus had obligations to find the employee alternative employment – whether employee had obligation to notify principal before liability to find alternative employment arose – whether suitable alternative employment found

Lopez v HBS (PNG) Limited [2018] ACTSC 190
Uploaded 2 July 2018
PRACTICE AND PROCEDURE – Court Procedure Rules 2006 r 6504(1) – application to set aside originating process – whether leave required – whether Australian Capital Territory is an inappropriate forum – where incident occurred in Papua New Guinea and no connecting factors to the Territory – originating process set aside

Coles Supermarket Australia Pty Ltd v Harris [2018] ACTCA 25
Uploaded 2 July 2018
TORTS – NEGLIGENCE – Standard of Care – reasonably foreseeable risk of injury to employee using a device provided by employer – employee not trained in safe use of device – whether probability of injury so low that no reasonable employer in the appellant’s position would take any precaution against it – whether risk of injury ought to have been obvious to adult employee – whether employee guilty of contributory negligence

Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19
Uploaded 2 July 2018
PROFESSIONS AND TRADES – LEGAL PRACTITIONER – breach of Legal Profession (Solicitors) Rules 2007 – appeal from single judge of the Supreme Court – whether primary judge wrongly refused to admit further evidence – he did not – whether outcome would be affected by reckless as opposed to deliberate attempt to mislead respondent or ACT Civil and Administrative Tribunal – it would not – numerous other grounds of appeal – appeal dismissed

The Legal Practitioner v The Council of the Law Society of the ACT [2018] ACTCA 26
Uploaded 2 July 2018
PROFESSIONS AND TRADES – LEGAL PRACTITIONER – Appeal from single judge of the Supreme Court – findings of unsatisfactory professional conduct and professional misconduct – reference in judgment to unsatisfactory professional conduct rather than professional misconduct – whether slip rather than intentional finding – whether primary Judge failed to consider professional misconduct provisions in the Legal Professions Act 2006 – whether primary Judge erred in finding cumulative effect of practitioners errors amounted to unsatisfactory professional conduct as opposed to “mere lapses” or “innocent mistakes” – grounds of appeal not substantiated – numerous other grounds of appeal vague or without merit – appeal dismissed

Mooney v The Queen [2018] ACTCA 24
Uploaded 2 July 2018
APPEALS – CRIMINAL LAW – Sentencing – obtain property by deception – obtain financial advantage by deception – use false document – use of comparable cases as sentencing pattern – accumulation of sentences – concurrency of sentences – non parole period – whether totality of sentence is manifestly excessive –  whether individual sentence is manifestly excessive.

Commonwealth of Australia v Marsh [2018] ACTSC 189
Uploaded 29 June 2018
APPEAL – TORTS – Malicious Prosecution – Whether absence of reasonable and probable cause – whether no evidence for a material finding on malice – appeal allowed with costs

R v Johnson [2018] ACTSC 137 (SCC 281 of 2017)
Uploaded 26 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery in company – young offender – history of illicit drug use – consideration of illicit drug use rehabilitation – intensive corrections order

Giusida Pty Ltd v Commissioner for ACT Revenue (No 2) [2018] ACTSC 178
Uploaded 22 June 2018
APPEAL – DECISION BY AN ADMINISTRATIVE TRIBUNAL – ACT Civil and Administrative Tribunal – questions of fact and law – whether the Tribunal acted in accordance with law – whether the Tribunal accorded the applicant a fair hearing – whether the Tribunal accorded appropriate weight to the opinions of valuers – whether the Tribunal took into account irrelevant considerations

Cervo v Kingsley’s Pty Ltd [2018] ACTSC 179
Uploaded 22 June 2018
APPEAL – APPEAL FROM THE MAGISTRATES COURT – whether the proceedings seeking costs and compensation following termination of a commercial lease were res judicata – effect of concession made by counsel – whether clause of lease should be construed to give rise to a claim for costs or compensation only upon demand – where claim for compensation had not yet crystallised – appeal allowed in part

Kafadar v Insurance Australia Ltd t/as NRMA Insurance [2018] ACTSC 183
Uploaded 22 June 2018 
COSTS – no point of principle

Dong v Song (No 2) [2018] ACTSC 180
Uploaded 22 June 2018
TRADE AND COMMERCE – Trade Practices and Related Matters – Misleading and deceptive conduct – dealings between friends – reasonable expectation of disclosure – failure to provide relevant information – whether causative link between misleading and deceptive conduct and damages claimed

R v Walters [2018] ACTSC 17 (SCC 141 of 2017; SCC 141A of 2017; SCC 142 of 2017)
Uploaded 21 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four charges of dishonestly driving a motor vehicle belonging to someone else – two charges of aggravated burglary – one charge of theft – two charges of by deception dishonestly obtaining property – one charge of dishonestly ride in a motor vehicle by deception – one charge of damaging property belonging to someone else – additional offences to be taken into account – three summary charges – maximum penalties – pleas of guilty – criminal history – Pre-Sentence Report – CADAS Report – objective seriousness – rehabilitation – general and specific deterrence – whether it is necessary to consider parity – totality – terms of imprisonment – desirability of residential rehabilitation program – non-parole period – reparation orders made

R v Pearce [2018] ACTSC 140 (SCC 340 of 2017; SCC 341 of 2017)
Uploaded 20 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled drug other than cannabis, namely heroin – possessing a prohibited weapon – dealing with proceeds of crime – user/dealer – dealing to support own and partner’s habits and to make a profit – significant criminal history – pleas of guilty – consideration of illicit drug use rehabilitation – general deterrence – specific deterrence – sentenced to a period of full‑time imprisonment

DN v Paton [2018] ACTSC 20
Uploaded 19 June 2018
PRACTICE AND PROCEDURE – Application for evidence to be taken in London – r 6813 of the Court Procedures Rules 2006 (ACT) – claim for damages arising out of motor vehicle accident in Canberra – plaintiff resides in London – plaintiff suffering post-traumatic stress disorder – difference of opinion between psychiatrists regarding impact on psychological condition of plaintiff by returning to Australia to give evidence – risk of exacerbation of condition – risk that ability to properly participate in any hearing may be adversely affected – risk reduced by taking evidence in London – certain required experts practising in United Kingdom – second defendant may protect its position regarding costs – whether in interests of justice to make the order

The Director of Public Prosecutions v Graham [2018] ACTCA 23
Uploaded 18 June 2018
CRIMINAL LAW – REFERENCE APPEAL – Statutory interpretation – Construction of s 27(3)(c) of Crimes Act 1900 (ACT) – Whether “likely to endanger human life or cause a person grievous bodily harm” relates to the use of the weapon or the characteristics of the weapon – Relates to the use of the weapon

Bell v de Castella [2018] ACTSC 170
Uploaded 15 June 2018
APPEAL – Appeal from decision of ACT Civil and Administrative Tribunal – offer of settlement allegedly made and accepted after judgment reserved – application for declaration that agreement was made and order for specific performance of agreement – whether appellant was of sound mind when agreement offered – setting aside of agreement where party of unsound mind – denial that agreement made but no refusal to perform agreement – application for specific performance premature.

Lee v McGrath [2018] ACTSC 173
Uploaded 14 June 2018 
TORTS – NEGLIGENCE – Motor vehicle accident – whether the defendant breached her duty of care to the plaintiff – whether the defendant’s negligence caused the harm – claim of contributory negligence – calculation of damages – nature and extent of injury

QU v Cattanach [2018] ACTSC 163
Uploaded 14 June 2018
APPEAL – Magistrates Court – appeal against sentence – charge of contravene a protection order –– whether the magistrate misunderstood the requirements of s 17 of the Crimes (Sentencing) Act 2005 (ACT)

Re-Sentence – requirements of s 17(3) of the Crimes (Sentencing) Act 2005 (ACT) – non-conviction order imposed – good behaviour order imposed

Laguer v Mortimer and Ors [2018] ACTSC 169
Uploaded 14 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether the Magistrate considered alternative sentence options – whether the Magistrate improperly considered that the offences were “white-collar crimes”

R v Wells [2018] ACTSC 121 (SCC 122 of 2017)
Uploaded 13 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – arson – act endangering life – common element in both offences – offender not to be doubly punished for that act – offender diagnosed with terminal illness – whether Court should sentence in light of terminal prognosis – public interest in finalising proceedings – medical condition taken into account in determining appropriate sentence – sentence must not be manifestly inadequate – offender served time in custody for offence prior to sentencing – sentence of imprisonment suspended upon entering good behaviour order

R v Watson [2018] ACTSC 172 (SCC 165 of 2017; SCC 168 of 2017)
Uploaded 13 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender to be sentenced for drug-related offences in 2015 and 2017, and breaches of 2015 good behaviour orders – sentences for 2015 offences backdated to take account of over 6 months pre-sentence custody and part of time spent in successful residential rehabilitation – sentences for 2017 offences to commence on day of sentence hand-down and to be served by intensive correction order.

R v Syed [2018] ACTSC 167 (SCC 40 of 2017)
Uploaded 12 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –aggravated robbery in company – seriousness of the offence – plea of guilty – prospects for rehabilitation – no drug or alcohol issues to be addressed – co-offenders – age – general deterrence – sentence of imprisonment imposed – suspended – Good Behaviour Order imposed – community service condition

R v Fitzgerald; R v Noveski [2018] ACTSC 168 (SCC 16 of 2018; SCC 17 of 2018)
Uploaded 8 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – party with co-offenders – rehabilitation – general deterrence

R v Campbell; R v Wray [2017] ACTSC 386 (SCC 176 of 2017; SCC 177 of 2017; SCC 246 of 2017; SCC 173 of 2017; SCC 174 of 2017; SCC 175 of 2017; SCC 331 of 2017)
Uploaded 5 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – aid and abet burglary – unlicensed driving – possessing a knife without a reasonable excuse.

R v NF [2018] ACTSC 165 (SCC 323 of 2017; SCC 324 of 2017; SCC 9 of 2018; SCC 40 of 2016; SCC 41 of 2016)
Uploaded 5 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender - sentencing purposes – uncertain prospects for rehabilitation – general deterrence

R v Dillon [2018] ACTSC 164 (SCC 186 of 2016; SCC 195 of 2017; SCC 196 of 2017)
Uploaded 4 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pleas of guilty to two series of offences – first series of offences – by an unlawful or negligent act or omission, cause grievous bodily harm – two counts of recklessly inflict grievous bodily harm – two counts of intentional and unlawful threat to kill – assault occasioning actual bodily harm – act of indecency without consent – other offences to be taken into account

Second series of offences – Murder – circumstances of the offence – two counts of recklessly inflict grievous bodily harm – multiple counts of intentionally inflict grievous bodily harm – assault occasioning actual bodily harm – two counts of choke rendering insensible or unconscious – act endangering health – two counts of intentional and unlawful threat to kill – other offences to be taken into account – caused death by assaults, and at the time intended to cause serious injury – assessment of level of culpability – whether case falls within the worst case category – limited criminal history – report of consultant forensic psychiatrist – victim impact statements – whether the plea of guilty could justify a lesser sentence than life imprisonment

QE v McRae [2018] ACTSC 151
Uploaded 1 June 2018
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction and sentence – conviction for contravening family violence order  – whether miscarriage of justice by reason of plea of guilty of self-represented person – no miscarriage of justice – failure to make recognizance release order for federal offence – conviction on charge not supported by admitted facts – leave granted to amend Notice of Appeal – appeal allowed

R v Beath-Williams [2018] ACTSC 162 (SCC 207 of 2017)
Uploaded 1 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm

Woods v Porter [2018] ACTSC 161
Uploaded 1 June 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pleas – Magistrates Court Act 1930 (ACT), s 54 – whether Magistrate required to deal with charges laid in circumstances where the prosecution sought to withdraw them

R v Summerfield [2018] ACTCA 20
Uploaded 1 June 2018
CRIMINAL LAW – Crown appeal against sentences imposed for five offences of sexual intercourse with a person aged between 10 and 16 years of age – two female child victims of 13 and 15 years of age – whether primary judge erred in finding, as a matter of mitigation, that the offender was engaged in a “genuine, if immature, relationship” with the victims – whether primary judge erred in characterising the offending against the 13-year-old victim as at the “mid-range of objective seriousness” – whether sentencing outcome was erroneous as the individual sentences were manifestly inadequate – whether sentencing outcome was erroneous as the accumulation between counts was manifestly inadequate – whether sentencing outcome was erroneous as the overall head sentence and non-parole period were manifestly inadequate

Miller v The Queen [2018] ACTCA 21
Uploaded 1 June 2018
APPEAL – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in his assessment of the appropriate discount for the offender’s pleas of guilty and assistance to authorities – where the Crown made submissions on the appropriate range of discounts

R v Kelly [2018] ACTSC 160 (SCC 40 of 2018; SCC 41 of 2018)
Uploaded 31 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtaining property by deception – failing to stop motor vehicle for police

QD v Morgan [2018] ACTSC 157
Uploaded 31 May 2018
APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether the sentences imposed were manifestly excessive – whether the Magistrate properly considered alternative sentence options – whether the Magistrate erred in failing to give adequate effect to the principle of totality

BK v Middlemiss [2018] ACTSC 158
Uploaded 31 May 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the sentences imposed were manifestly excessive in all the circumstances

Manny v David Lardner & Associates [2018] ACTSC 159
Uploaded 31 May 2018
CORPORATIONS LAW – reinstatement – plaintiff seeking to reinstate three companies to bring proceedings – where companies formerly in liquidation – where no liquidator has consented to act upon reinstatement – whether reinstatement just

R v Towers [2018] ACTSC 112 (SCC 103 of 2017)
Uploaded 31 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Committing an act of indecency without consent – victim known to offender – victim not consenting – offender reckless as to whether victim was consenting – breach of trust – significant age difference – no prior convictions for offences of same nature – suspended sentence of full-time imprisonment – Community Service Order

In the Estate of Edna Ann Levy [2018] ACTSC 150
Uploaded 29 May 2018
COSTS – probate jurisdiction – proceedings between competing executors – where proceedings settled save as to costs – whether proceedings unreasonably commenced

The Owners – Units Plan No. 3676 v Morris Construction Corporation Pty Ltd [2018] ACTSC 149
Uploaded 29 May 2018
PRACTICE AND PROCEDURE – reports prepared for proceedings – application to use material otherwise than for the purpose of the proceedings – Harman undertaking – where serving party consents to the use of documents for collateral purpose – release from implied undertaking granted

McGrath v McGrath [2018] ACTSC 148
Uploaded 29 May 2018
TRUSTS – resulting or constructive trust – where title to family home held between father and son as joint tenants – whether father and son jointly contributed to purchase price – whether family home treated as beneficially owned by parents – constructive trust found
EQUITY – equitable remedies – where title to family home held between father and son as joint tenants – whether joint tenancy severed – whether common intention that title held by son on trust for his parents – where legal title passed to son upon father’s death – whether it would be unconscionable for son to retain proprietary interest – declaratory relief of a remedial constructive trust appropriate

Vimahi v The Queen [2018] ACTCA 18
Uploaded 29 May 2018
APPEAL – CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether sentencing judge erred with respect to concurrency and accumulation – appeal dismissed

Jornad Pty Ltd v Sapme Pty Ltd and Ors [2018] ACTSC 147
Uploaded 25 May 2018
PROCEDURE – Costs – Application for security for the costs in proceedings – defendants claim that plaintiffs made false and misleading representations to the defendants - whether application was brought promptly – whether plaintiffs’ case against defendants is weak – whether plaintiffs’ impecuniosity was caused by the defendants – whether defendants’ application is oppressive – whether there are persons standing behind the first plaintiff likely to indemnify the plaintiff

R v Nguyen [2018] ACTSC 146 (SCC 325 of 2017)
Uploaded 24 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – property offences – arson – damage to building by explosive – offence of substantial objective seriousness – extensive and costly damage to property – young offender – no significant criminal history – offender has shown regret and remorse – intensive correction order

R v Price [2018] ACTSC 145 (SCC 12 of 2015)
Uploaded 24 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Good Behaviour Order – breach of Good Behaviour Order –  further offending - suspended sentence – Good Behaviour Order following suspended sentence

WS v Director-General, Community Services Directorate [2018] ACTSC 144
Uploaded 23 May 2018
APPEAL – APPEAL FROM THE CHILDRENS COURT – extension of care and protection order – where magistrate declined to consider whether child in need of care and protection – error established
CHILDREN – CHILD WELFARE – intervention – extension of care and protection order – where father asserted he was willing and able to take parental responsibility for the child – whether previous findings of the Family Court of Australia concerning historical allegations of abuse in relation to a different child were misunderstood or misapplied – error established

Leda Commercial Properties Pty Ltd v Brenda Hungerford Pty Ltd [2018] ACTCA 17
Uploaded 23 May 2018
APPEAL –  Appeal against primary judgment and judgment on costs – whether the trial judge awarded relief not founded on the pleadings – whether the trial judge erred in finding that any non-disclosure amounted to misleading and deceptive conduct – whether the trial judge erred in making a finding of reliance – whether the trial judge erred in his assessment of loss and damage sustained – whether the trial judge erred in his assessment of his costs
CROSS-APPEAL – Cross-Appeal against primary judgment and judgment on costs – whether the trial judge erred in his assessment of loss and damage sustained – whether the trial judge erred in his assessment of costs

R v LE [2018] ACTSC 143 (SCC 252 of 2017)
Uploaded 21 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 – guilty pleas

AB v Forbes [2018] ACTSC 134
Uploaded 21 May 2018
APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether the sentences imposed were manifestly excessive

KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote (No 2) [2018] ACTSC 131
Uploaded 21 May 2018
PROCEDURE – Costs – costs between the plaintiffs and the defendants – whether there should be an order otherwise than that the defendants pay the plaintiffs’ costs of the proceedings assessed on a solicitor and client basis for the whole of the proceedings – costs between the first and second defendants – Notice Claiming Contribution or Indemnity – Offer of Compromise – whether Part 2.10 of the Court Procedures Rules 2006 (ACT) applies

Barlow v Law Society of the ACT [2018] ACTCA 16
Uploaded 18 May 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal from interlocutory judgment –  application to declare the applicant a vexatious litigant

R v Shearer [2018] ACTSC 91
Uploaded 18 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – aggravated robbery – joint commission – whether there was a non-verbal agreement between offenders to commit an aggravated robbery – whether aggravated robbery is an offence “of the same type” as an assault – held that it is not – accused acquitted – s 45A of the Criminal Code 2002 (ACT)

R v Eastwood-Figura [2018] ACTSC 133 (SCC 12 of 2018)
Uploaded 18 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aiding and abetting aggravated robbery – objective seriousness of the offence – deterrence – accountability – denunciation.

R v Cartwright [2018] ACTSC 132 (SCC 261 of 2017; SCC 262 of 2017)
Uploaded 18 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography – using a carriage service to menace, harass or cause offence – remorse and acceptance of responsibility – general deterrence.

R v Morgan [2018] ACTSC 113 (SCC 298 of 2017)
Uploaded 16 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person without consent and being reckless as to whether she was consenting – act of indecency in the presence of a person – assault with intent to commit an offence of committing an act of indecency – objective seriousness – juvenile victims – public place – significant criminal history – significant delay – guarded prospects for rehabilitation – pleas of guilty – period of full-time imprisonment

R v Johnson [2018] ACTSC 128 (SCC 271 of 2016)
Uploaded 16 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – early guilty plea – strong subjective circumstances – good prospects of rehabilitation – history of alcohol abuse – history of physical and emotional abuse – offender on conditional liberty

R v Collins [2018] ACTSC 127 (SCC 290 of 2017)
Uploaded 16 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with person under 16 years – using carriage service to transmit communications to person under 16 years with the intention of procuring sexual activity – no criminal history – five year age gap – good prospects of rehabilitation – neurodevelopmental issues – immature offender

R v Nguyen [2018] ACTSC 130 (SCC 170 of 2017)
Uploaded 16 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cultivating a commercial quantity of a controlled plant – guilty plea

R v Spong [2018] ACTSC 129
Uploaded 16 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Juries – Summing-Up – directions to jury – judicial comity – decision of another Australian intermediate appellate court on a statutory provision substantially identical with the one under consideration
CRIMINAL LAW - PARTICULAR OFFENCES – Driving Offences – culpable driving causing death – gross negligence

R v McNeill [2018] ACTSC 125 (SCC 226 of 2017; SCC 227 of 2017)
Uploaded 15 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – common assault

R v KN [2018] ACTSC 111 (SCC 58 of 2017)
Uploaded 15 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault occasioning actual bodily harm – intentionally and unlawfully choking a person so as to render that person insensible or unconscious – no previous history in relation to violence – drug and alcohol abuse problems – childhood trauma – little likelihood of offences recurring – very good prospects for rehabilitation

R v NC [2018] ACTSC 123 (SCC 192 of 2015)
Uploaded 15 May 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence after breach of good behaviour order – minor re-offending – failure to engage with Victorian sex offenders program – offender resistant to group therapy – breach found – offender re-sentenced – new good behaviour order requiring engagement with psychologist.

In The Estate of Socrates Paschalidis [2018] ACTSC 122
Uploaded 14 May 2018
WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A

Lucas v Simmonds [2018] ACTSC 120
Uploaded 11 May 2018
CRIMINAL LAW – BAIL – Appeal bail – Bail Act 1992 (ACT) s 9E – whether having substantially served the full-time custodial portion of a sentence before appeal is determined is a “special and exceptional circumstance” – relevance of appeal prospects of success - Bail Act 1992 (ACT) s 22 criteria for granting bail to adults – likelihood of applicant committing an offence while released on bail – likelihood of applicant harassing or endangering the safety or welfare of anyone while released on bail

R v Salcedo; R v Stretton [2018] ACTSC 96
Uploaded 9 May 2018
EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses

Aroub v The Queen [2018] ACTCA 13
Uploaded 9 May 2018
APPEAL - Application for leave to appeal out of time – convicted by a jury – sentenced to period of imprisonment – draft notice of appeal – amended draft notice of appeal – appeal against conviction and sentence – consideration of merits of proposed appeal – ground relating to failure to call witness – ground relating to failure to disclose material – grounds relating to whether potential for prejudice regarding explanations of DNA evidence – whether unfairness to accused in representing himself at trial – identity not in issue

LP 12 v The Council of the Law Society of the ACT (No 4) [2018] ACTSC 117
Uploaded 7 May 2018
PROCEDURE – Application in proceeding to restrain a party from moving on its application – whether the court has the power to grant injunctive relief

LP 12 v The Council of the Law Society of the ACT (No 3) [2018] ACTSC 115
Uploaded 7 May 2018
PROCEDURE – Application for a stay of orders in the nature of certiorari and declaratory relief – where an appeal to the Court of Appeal in a civil proceeding does not operate as a stay of the order appealed from unless the Court otherwise orders – power of the Court to grant a stay

Golding v Primavera Holdings Pty Ltd [2018] ACTSC 118
Uploaded 7 May 2018
TRUSTS – express trust – where land was sold to a developer on the basis that once development of a larger parcel of land was complete, a unit in the development would be transferred back to the seller for nominal consideration – where developer carried out the development but failed to register a units plan so as to enable the transfer to the seller to occur – express trust established

Foote v Coroner’s Court of the ACT [2018] ACTSC 119
Uploaded 7 May 2018
CORONERS – powers of superior court – review of findings made at a coronial inquest – scope of s 93 of the Coroners Act 1997 (ACT)

R v Aitchison [2017] ACTSC 260
Uploaded 3 May 2018
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence –whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect

R v Aitchison (No 2) [2018] ACTSC 72
Uploaded 2 May 2018
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – further application to adduce tendency evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect

Jackson v Ben Aulich & Associates Pty Ltd [2018] ACTSC 93
Uploaded 2 May 2018
CIVIL LAW - PRACTICE AND PROCEDURE – Appeal – appeal against decision of Registrar – costs dispute – application for costs assessment – no delegation of functions by Law Society Council – no notification of entitlement to apply for costs assessment – costs not assessable – appeal allowed

National Gallery of Australia v Beljan [2018] ACTSC 78
Uploaded 2 May 2018
CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for freezing order – failure to pay sum per settlement deed – party to obtain funds following settlement of other proceedings – risk of dissipation of funds – risk funds will be transferred overseas – party outside of jurisdiction – freezing order granted

R v Salcedo; R v Stretton (No 2) [2018] ACTSC 104
Uploaded 1 May 2018
CRIMINAL LAW – EVIDENCE – Confessions and Admissions – Admissibility - Crimes Act 1914 (Cth), s 23V - Failure to record questioning when practicable to do so – Contrary to the interests of justice to admit such evidence – Whether admission made whilst accused was ‘being questioned’

CRIMINAL LAW – EVIDENCE - Judicial Discretion to admit or exclude Evidence – Relevance – Evidence Act 2011 (ACT), s 137 - Possession of firearm said to have been used in crime – Whether evidence of possession  of items admissible – Unfair prejudice of admitting firearms

Luongo v Clarke (No 2) [2018] ACTSC 108
Uploaded 20 april 2018
TORTS – NEGLIGENCE – Contributory negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages

PROCEDURE – Costs – whether the circumstances of the case justify departure from the general rule that costs will follow the event

LP 12 v The Council of the Law Society of the ACT (No 2) [2018] ACTSC 105
Uploaded 30 April 2018
PROCEDURE – Costs – whether the circumstances of the case justify departure from the general rule that costs will follow the event – whether the successful party should only be awarded a proportion of its costs

R v Trewin [2018] ACTSC 109
Uploaded 27 April 2018
CRIMINAL LAW – Judge-Alone Trial – Plea of not guilty – self-representation of accused at trial.

EVIDENCE – Pre-Trial Application to Exclude Evidence – photographic evidence of accused’s premises – evidence seized from accused’s property during certain time periods – evidence relevant to application taken on voir dire – evidence subject of the objection admitted.

EVIDENCE – Objection to Tender of Evidence Given at Trial – Five documents headed “Registration of Drugs/Suspected Substances Seized or Acquired” – two certificates prepared by the ACT Government Analytical Laboratory – evidence admitted.

DRUG OFFENCES – Trafficking in a trafficable quantity of cannabis – presumption of intent or belief about the sale of the drug if trafficable quantity is possessed  – whether satisfied beyond reasonable doubt that the accused was in possession of more than the trafficable quantity of cannabis – whether evidence to displace the statutory presumption that he did so with the intention of selling it – cultivating a trafficable quantity of cannabis with intention of selling any of the plants or their products – presumption that defendant had the intention or belief about the sale of the plant or its products for the offence if trafficable quantity is cultivated – whether satisfied beyond reasonable doubt that the accused cultivated a trafficable quantity of cannabis plants – whether satisfied that he did so with the intention of selling the plants or their products or that he believed that someone else intended sell the plants or their products.

R v BE [2018] ACTSC 101 (SCC 206 of 2017)
Uploaded 24 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – Commonwealth offences – obtaining a financial advantage from another person by deception – falsified invoices – circumstances leading to offending – offender diagnosed with depression, anxiety and stress – early plea of guilty – provided assistance to authorities to facilitate administration of justice – monies repaid –  general  deterrence – consideration of s 16A(2) of the Crimes Act 1914 (Cth) – period of imprisonment suspended after four months – recognizance release order

R v Mena [2018] ACTSC 92 (SCC 303 of 2017)
Uploaded 24 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – assault occasioning actual bodily harm – recklessly inflicting grievous bodily harm – burglary conducted on residential premises with residents present – victim stabbed – limited criminal history – good prospects for rehabilitation from illicit drug use – early guilty plea – submission for an assessment for an intensive corrections order not accepted – general deterrence – specific deterrence – period of imprisonment suspended after 10 months

Chifuntwe v The Queen [2018] ACTCA 12
Uploaded 24 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against guilty conviction – Whether the decision at trial was unreasonable – Whether the decision at trial was unsupportable by the evidence – The rule in Browne v Dunn – Whether all reasonable hypotheses consistent with innocence excluded

BI v The Queen (No 2) [2018] ACTCA 11
Uploaded 23 April 2018
APPEAL – CRIMINAL LAW – whether guilty verdicts were unreasonable having regard to the evidence on the basis of inconsistency and insufficiency of evidence – whether the probative value of the tendency evidence admitted at trial significantly outweighed any prejudicial effect – asserted want of similarity of conduct for tendency evidence at trial – whether tendency objection was raised below and whether appellant accordingly requires leave to raise tendency point on appeal – appeal dismissed

R v Fleet [2018] ACTSC 50 (SCC 157 of 2017; SCC 158 of 2017)
Uploaded 23 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – burglary in company – removing copper piping from house – guilty plea – not suitable for intensive correction order – custodial sentence – minor theft considered in sentencing

Minerva (Aust) Pty Ltd v Suburban Land Agency [2018] ACTSC 103
Uploaded 23 April 2018
PRACTICE AND PROCEDURE – DISCOVERY AND INTERROGATORIES – application for discovery to identify right to claim relief

A & A Martins Pty Limited v Liu [2018] ACTSC 102
Uploaded 20 April 2018
RESTITUTION – QUANTUM MERUIT – unjust enrichment – where plaintiff substantially constructed a house for the defendants – where defendants refused to pay for work completed on the basis that the contract was signed with a different corporate entity – whether defendants knew or ought to have known that services and goods were being performed or supplied by the plaintiff.

Morales v Faccin and Wiseman [2018] ACTSC 100
Uploaded 20 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – appeal against sentences – whether sentences manifestly excessive – consideration of the prospects of rehabilitation

ES v Larkam [2018] ACTSC 99
Uploaded 19 April 2018
APPEAL AND NEW TRAIL – APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – Driving offences – application for adjournment – application for recusal – allegation of apprehended bias on the basis that judge had previously decided care matters relating to appellant’s children – application to dismiss appeal for want of prosecution

R v Will (No 3) [2017] ACTSC 395
Uploaded 19 April 2018
PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – Judgments and orders – non-publication orders and redactions to ensure a fair trial for the accused
PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – amending orders – inherent power – slip rule – r 6906 of the Court Procedures Rules 2006 (ACT)
PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – power to amend reasons – whether amendment of substance – addendum to be published with reasons

R v Will (No 2) [2017] ACTSC 377
Uploaded 19 April 2018
PRACTICE AND PROCEDURE – MISCELLANEOUS POWERS OF COURT AND JUDGES – Judgments and orders – access of prosecution team to evidence – non-publication orders and redactions to ensure fair trial for accused
EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Confessions and admissions – access of prosecution team to evidence – transcript of compulsory examination and previous evidence given at a trial to be quarantined from prosecution team – certain affidavits and exhibits subject to a non-publication order – reasons partially redacted

R v Will [2017] ACTSC 356
Uploaded 19 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – permanent stay of the proceedings – compulsory examination of the accused by Australian Crime Commission before charged – examination transcripts provided to prosecutors – derivative use of examination material – privilege against self-incrimination – whether examination lawful – whether use of evidence for another trial lawful – whether accused deprived the right of a fair trial – whether an abuse of process to be charged following assertion accused would not be prosecuted if evidence given – whether improper or unlawful for investigating officers to be present at examination – whether a stay is justified if an abuse of process – application dismissed – stay not granted – necessary precautions ordered for trial not to suffer a fundamental defect – ADMINISTRATIVE LAW – STATUTORY AUTHORITY – Investigation of organised crime – outlaw motorcycle gangs – power of compulsory examinations – accused compulsorily examined – whether abrogation of self-incrimination is an abuse of process – Australian Crime Commission Act 2002 (ACT)

R v Horner [2018] ACTSC 98 (SCC 129 of 2017)
Uploaded 18 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Robbery in company – Offender has shown remorse – Offender has developed insight into offending – Offender has taken steps to rehabilitate – No relevant prior criminal history

R v Haddara [2018] ACTSC 70 (SCC 161 of 2017; SCC 162 of 2017; SCC 163 of 2017; SCC 164 of 2017)
Uploaded 16 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a person under the age of 16 years – assault occasioning actual bodily harm – possessing child exploitation material – damage property – using a carriage service in a manner that was menacing, harassing or offensive – common assault – sexual intercourse without consent – sexual assault in the third degree – possession of an unregistered firearm – rolled-up charges – pleas of guilty – objective seriousness – disturbing pattern of violence and coercion – high risk of recidivism – general deterrence – specific deterrence – entered onto Sex Offender’s Register – sentenced to a period of full-time imprisonment

Council of the Law Society of the ACT v The Legal Practitioner D3 [2018] ACTSC 95
Uploaded 13 April 2018
PROCEDURE – Miscellaneous procedural matters – Supreme Court decision that ACT Civil and Administrative Tribunal had jurisdiction to deal with application by Council of Law Society for disciplinary action against legal practitioner – application to Supreme Court for stay pending filing of appeal to Court of Appeal, or until determination of foreshadowed appeal – no draft grounds of appeal provided – no information provided about timing in Tribunal or Court of Appeal – claim of irremediable prejudice in absence of stay not made out – stay until appeal filed would be futile – longer stay not appropriate without draft grounds of appeal and indication of likely timings – application dismissed.

R v Gordon [2018] ACTSC 94 (SCC 321 of 2017)
Uploaded 12 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – robbery committed in company – offensive weapon used to commit robbery – make demand with threats – young offender – significant criminal history – substance abuse – mental health issues

QA v Chief Psychiatrist of the ACT [2018] ACTCA 10
Uploaded 12 April 2018
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether appeal was incompetent

Kazolis v Registrar of Firearms [2018] ACTSC 89
Uploaded 11 April 2018
JUDICIAL REVIEW – decision to cancel firearms licence –– whether a father knowingly borrowed his son’s licence in contravention of the Firearms Act 1996 (ACT) – whether denial of procedural fairness
WORDS AND PHRASES – ‘borrowed’

Luongo v Clarke [2018] ACTSC 81
Uploaded 10 April 2018
TORTS – NEGLIGENCE – Contributory Negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages

R v Sampson [2017] ACTSC 349
Uploaded 10 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Judge alone trial – aggravated robbery – CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – identification evidence – photo board – whether the probative value of the evidence outweighs its potential prejudicial effect

Corkhill v Commonwealth of Australia (No 3) [2018] ACTSC 87
Uploaded 10 April 2018
SUPERANNUATION – PUBLIC SERVICE SCHEMES – Availability of public service schemes to temporary Commonwealth employees – no statutory duty to inform every potentially affected employee as to their eligibility – Superannuation Act 1922 (Cth) – Superannuation Act 1976 (Cth) – Superannuation Act 1990 (Cth) – TORTS – NEGLIGENCE – Duty of care – claim of negligent misrepresentation – whether alleged misrepresentation and negligence arose from representations about operation of superannuation schemes – claim not made out

R v Sampson [2018] ACTSC 59 (SCC 112 of 2017; SCC 114 of 2017)
Uploaded 6 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – damage property – theft – making off without payment – obtaining property by deception – guilty plea – extensive criminal history of similar charges – specific deterrence – general deterrence – totality of sentences – custodial sentence

KS and XT v Calvary Health Care ACT trading as Calvary Hospital and Dr Andrew Foote [2018] ACTSC 84
Uploaded 6 April 2018
NEGLIGENCE – Medical practitioner – Hospital – psychological harm to plaintiffs – liability – whether there were breaches of duty – content of duty of care – whether the breaches of duty were causative of the injuries sustained – assessment of damages – contribution

R v LF [2018] ACTSC 42 (SCC 306 of 2017; SCC 307 of 2017)
Uploaded 5 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – young offender – aggravated robbery in company and with weapon – riding in motor vehicle without consent – guilty plea – sentence moderated by illicit drug use commencing as child – specific deterrence – opportunity for rehabilitation – custodial sentence – good behaviour order with period of supervision

R v NN [2018] ACTSC 43 (SCC 304 of 2017; SCC 310 of 2017)
Uploaded 5 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – offences as young person – aggravated burglary – riding without consent in motor vehicle – theft – guilty plea – good behaviour order – offences as adult – aggravated robbery in company – damaging property – guilty plea – imprisonment – sentence length moderated by illicit drug use commencing as child

R v Parker [2018] ACTSC 55 (SCC 155 of 2017; SCC 315 of 2017; SCC 337 of 2017; SCC 338 of 2017)
Uploaded 4 April 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint commission burglary – joint commission theft – burglary – theft – robbery – property damage – offences committed over short period – general and specific deterrence – custodial sentence – reparation order declined

Dong v Song [2018] ACTSC 82
Uploaded 4 April 2018
EVIDENCE – admissibility of undisclosed video recording of conversation – whether recording and affidavit evidence reliant on the recording was admissible under the Listening Devices Act 1992 (ACT) – whether the plaintiff who recorded the conversation had objectively reasonable grounds for considering the recording to be necessary for the protection of her then existing lawful interests.

The Director of Public Prosecutions v Booth [2018] ACTCA 8
Uploaded 4 April 2018
CRIMINAL LAW – REFERENCE APPEAL – claim of right – whether intent to commit theft is a fault element of the offence of burglary under the Code – whether a s 38 mistaken belief must relate to a right that actually exists in civil law – when does a physical element “relate to property” – what is an “offence relating to the use of force against a person”

Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [No 2] [2018] ACTSC 80
Uploaded 4 April 2018
CIVIL LAW – Practice and Procedure – Costs – Exercise of discretion to award costs – When part is a public authority

Hall v The Commonwealth of Australia [2018] ACTSC 79
Uploaded 29 March 2018
PROCEDURE – DISCOVERY AND INTERROGATORIES – application for discovery to identify potential defendant –application for discovery to identify right to claim relief

Lardner v Australian Capital Territory [2018] ACTSC 77
Uploaded 27 March 2018
PRACTICE AND PROCEDURE – applications for two witnesses to give evidence via audiovisual link from a location outside the Australian Capital Territory – pre-conditions in s 20 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – applications allowed

R v Sharman [2017] ACTSC 399 (SCC 3 of 2017; SCC 4 of 2017; SCC 5 of 2017)
Uploaded 22 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using offensive weapon likely to endanger human life or cause a person grievous bodily harm – intending to prevent or hinder a police officer from lawfully investigating act or matter reasonably calling for investigation by officer – high level of risk to others – recklessness – mid-range of offences – driving whilst disqualified as a repeat offender – prior convictions – Pre-Sentence Report – deterrent sentences – pleas of guilty – sentences of imprisonment – summary offences – Good Behaviour Orders

In the Estate of Kay Maureen Leighton [2018] ACTSC 75
Uploaded 22 March 2018
WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A

R v Huynh [2018] ACTSC 67 (SCC 135 of 2017; SCC 136 of 2017; SCC 318 of 2017)
Uploaded 20 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – ss 164(3), 171(1)(a) and 171(1)(b) of the Drugs of Dependence Act – s 172(1) of the Crimes Act 1900 (ACT)

TD v Mainey [2017] ACTSC 420
Uploaded 16 March 2018
APPEAL - CRIMINAL LAW - Appeal from the Magistrates Court - contravention of a domestic violence order - family violence - alleged manifestly excessive sentences imposed by magistrate - appellant seeking a non-conviction order - consideration of mental health concerns - disregard of court orders - appeal partially upheld - appellant resentenced on one count - Good Behaviour Order

Korda v Aldi Foods Pty Ltd [2018] ACTCA 6
Uploaded 16 March 2018
TORTS  - NEGLIGENCE - Occupiers of premises  - failure by owner of supermarket to warn entrants that gate designed to open automatically may not open  - shopper pushes trolley into gate and is injured - absence of evidence of other similar incidents - warning not required - whether warning would have av`oided injury - causation not established.

Stevens v The Queen [2018] ACTCA 7
Uploaded 16 March 2018
APPEAL – GENERAL PRINCIPLES – Appeal against conviction – whether verdict is unreasonable or cannot be supported having regard to the evidence
APPEAL – GENERAL PRINCIPLES – Directions to the Jury – Appeal from conviction – Application under r 5531 of the Courts Procedures Rules 2006 (ACT)

R v Jackson [2018] ACTSC 40 (SCC 209 of 2017)
Uploaded 15 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – arson – arson directed at motor vehicle – guilty plea – minimal criminal history – general deterrence – sentence to a period of imprisonment – concurrent sentences – sentence equivalent to time spent on remand


R v Chapman [2018] ACTSC 57 (SCC 322 of 2017)
Uploaded 15 March 2018
CRIMINAL LAW  - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment  - sentencing  - recklessly inflicting grievous bodily harm - unprovoked attack  - victim struck once  - general deterrence  - intensive corrections order not appropriate - suspended sentence  - community service work condition


Greenwood v Barlee [2018] ACTSC 46
Uploaded 15 March 2018
APPEAL  - CRIMINAL LAW  - Appeal from Magistrates Court  - appeal against conviction -| conviction for assault occasioning actual bodily harm  - whether magistrate made minute or memorandum of conviction  - whether magistrate erred by excluding the statement of facts and failing to consider statement of facts and all documentary evidence  - whether magistrate erred in finding victim evidence impressive and consistent, relying on victim’s evidence and rejecting the appellant’s evidence - whether magistrate erred in finding rule in Browne v Dunn applied to victim cross-examination  - appeal grounds not made out  - appeal dismissed  -| conviction confirmed


Lutz v McCormack [2018] ACTSC 66
Uploaded 15 March 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Crown appeal against sentence – whether the sentence imposed was manifestly inadequate

R v Wright [2018] ACTSC 58 (SCC 241 of 2017 : SCC 242 of 2017: SCC 343 of 2017
Uploaded 14 March 2018
CRIMINAL LAW  | JURISDICTION, PRACTICE AND PROCEDURE  | Judgment and Punishment | Sentence  | arson  | drink-driving  | offender intoxicated  | whether offences premeditated  | arson aggravated by being committed at night and by use of accelerant  | whether revenge was motive | whether offence committed in context of domestic relationship is an aggravating factor  |  separate breach of family violence order

R v Avery [2018] ACTSC 64 (SCC 319 of 2017: SCC 320 of 2017)
Uploaded 14 March 2018
CRIMINAL LAW  | JURISDICTION, PRACTICE AND PROCEDURE  | Judgment and Punishment  | Sentence  | unlawful confinement  | trafficking in a controlled drug  | demands accompanied by threats  | unlawful possession of stolen property  | possession of cannabis  | pleas of guilty


R v Rootsey [2018] ACTSC 63 (SCC 330 of 2017)
Uploaded14 March 2018 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – plea of guilty – no relevant criminal history



R v Al Mofathel [2018] ACTSC 65 (SCC 239 of 2016)
Uploaded 14 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – going equipped with an offensive weapon – guilty plea – parity in sentencing – substance abuse – strong subjective factors – supportive family environment – no adult criminal history – rehabilitation dominant sentencing purpose – intensive correction order



Hurst-Meyers v Public Trustee and Guardian for the ACT [2018] ACTSC 61
Uploaded 13 March 2018
TRUSTS – express or resulting trust – intention to create a trust – where property purchased and legal title registered in mother’s name but her son and daughter-in-law contributed to part of the purchase moneys – whether later affidavit evidence establishes express trust – declaration of express trust



Purcell v O’Reilly [2018] ACTSC 60
Uploaded 9 March 2018
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against sentence imposed in Magistrates Court – offence of damage property in domestic context – whether recording conviction was manifestly excessive – whether Magistrate erred in interpretation of facts – whether Magistrate misdirected herself about availability of non-conviction order.

Council of the Law Society of the ACT v The Legal Practitioner D3; Practitioner D3 v The Council for the ACT Law Society [2018] ACTSC 45
Uploaded 9 March 2018
ADMINISTRATIVE LAW – Prerogative Writs and Orders – where tribunal declines to deal with occupational discipline application on grounds of lack of jurisdiction – application for orders in nature of certiorari and mandamus – tribunal found to have jurisdiction – whether both orders necessary.

Halcombe v Hitchman [2018] ACTSC 56
Uploaded 9 March 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLESIn General and Right of Appeal – Application for leave to appeal


Halcombe v Hitchman [2018] ACTCA 5
Uploaded 9 March 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLESIn General and Right of Appeal – Application for leave to appeal from interlocutory judgment

R v Cringle [2018] ACTSC 41 (SCC 264 of 2017; SCC 8 of 2018)
Uploaded 8 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – burglary – theft – aggravated robbery with knife – guilty plea – criminal history of similar charges – possession of anabolic steroids considered in aggravated robbery sentencing – specific deterrence – custodial sentence

Batagoda (No 2) [2018] ACTSC 54 (SCC 70 of 2017)
Uploaded 7 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency in the presence of a young person – guilty pleas

R v Batagoda [2017] ACTSC 283
Uploaded 7 March 2018
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – charged and uncharged acts – whether the probative value of the evidence outweighs its potential prejudicial effect

Fardell v Hansen [2017] ACTSC 419
Uploaded 7 March 2018
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – sentence appeal – leniency for guilty plea – backdating for time in custody prior to sentencing – no demonstrable error found – appeal dismissed

Hassan v Calvary Private Hospital Health Care Canberra Ltd t/a Calvary John James Hospital [2018] ACTSC 53
Uploaded 6 March 2018
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 425, 1147 – applications to strike out claim or part thereof by defendants – applications for summary judgment –whether limitation period prevents claim from being pursued – where threshold for summary judgment not met

XT v Morgan [2018] ACTSC 52
Uploaded 5 March 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLESIn General and Right of Appeal – Appeal against sentence – whether the sentences imposed were manifestly excessive – whether irrelevant matters were taken into account

R v Aldridge [2018] ACTSC 51 (SCC 220 of 2017; SCC 221 of 2017)
Uploaded 5 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – receiving – dishonestly receives stolen property

R v Woutersz (No 2) [2018] ACTSC 44 (SCC 73 of 2015)
Uploaded 5 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty to manslaughter by reason of diminished responsibility – offender “very unwell” at time of killing – role of drug-taking in producing acute episode of mental illness especially relevant to specific deterrence – general deterrence not significant having regard to abnormality of mind – no evidence that prison term would weigh more heavily than on normal person, or would have an adverse effect on offender’s mental health


R v NO (No 2) [2018] ACTSC 37 (SCC 31 of 2017; SCC 37 of 2017)
Uploaded 5 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdicts in jury trial for sexual assault in the second degree, sexual intercourse without consent, act of indecency –– stalking charge found made out by reference to evidence given at jury trial – hardship to family arising from father’s inability due to ill health to maintain family business without offender’s help – offender’s partner being treated for cancer – significance of hardship to offender’s family – act of indecency and stalking breached good behaviour order made by court when suspending sentence of imprisonment for recklessly inflicting grievous bodily – suspended sentence imposed – further custodial sentence to be served.

R v NO [2018] ACTSC 30

Uploaded 5 March 2018
CRIMINAL LAW – Verdict – accused is guilty of stalking.

R v HC [2018] ACTSC 49 (SCC 16 of 2017; SCC 17 of 2017)
Uploaded 5 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – common assault – pleas of guilty

Vidovic v Hotchkis [2018] ACTSC 47
Uploaded 5 March 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal Appeal against conviction – whether there was a failure to properly consider, rule or otherwise deal with matters of law and procedure

Campbell v Blackshaw [2018] ACTSC 39
Uploaded 2 March 2018
CIVIL LAW – APPEAL AND NEW TRIAL – Practice and procedure – leave to appeal – appeal against decision of ACT Civil and Administrative Tribunal – dispute between neighbours – nuisance caused by trees – application for leave to appeal out of time – failure to properly explain delay – limited merit in grounds of appeal – extension of time to appeal not granted – common boundary dispute – consideration of proposed grounds of appeal – leave to appeal not granted

R v Alas (No 3) [2018] ACTSC 38 (SCC 290 of 2016)
Uploaded 2 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a person under the age of 16 years – long-term relationship between offender and victim – substantial age difference – subjective circumstances – mental health condition – post-traumatic stress disorder – sentencing patterns at the time of the offending – general deterrence – prisoner at risk – sentenced to a period of imprisonment

R v Woutersz (No 1) [2016] ACTSC 396
Uploaded 1 March 2018
EVIDENCE – ADMISSIBILITY AND RELEVANCE – Protected confidences – s 126B Evidence Act 2011 (ACT) – admissions made to occupational therapist in prison environment – whether statements were protected confidences – admissions admitted

R v Woutersz (No 2) [2016] ACTSC 397
Uploaded 1 March 2018
EVIDENCE – ADMISSIBILITY AND RELEVANCE – Protected confidences – s 126B Evidence Act 2011 (ACT) – admissions made to psychologist in prison environment – whether statements were protected confidences – admissible

R v Kandola [2016] ACTSC 395
Uploaded 1 March 2018
CRIMINAL LAW – Evidence – Admissibility of tendency evidence – admissibility of coincidence evidence – relevant considerations for assessment of tendency and coincidence evidence – whether probative value of evidence substantially outweighs its prejudicial effect – evidence admissible

Gillard v Smyth [2017] ACTSC 417
Uploaded 1 March 2018
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court –  appeal against sentence – error in sentencing process – perfected court orders did not reflect what the magistrate had ordered – not appropriate to impose suspended sentence

Walters v The Queen [2018] ACTCA 1
Uploaded 1 March 2018
APPEAL – CRIMINAL LAW – Appeal against conviction and sentence – charge of conspiracy to traffic in controlled drug other than cannabis – whether agreement extended to trafficking – conspirators must be shown to have agreed to supply others or to possess drug with intention to supply others – expectation of on-supply not sufficient – appeal upheld – verdict and order set aside – appellant acquitted

Kepaoa (No 2) [2018] ACTSC 24 (SCC 215 of 2017; SCC 216 of 2017)
Uploaded 1 March 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – common assault – recklessly inflicting grievous bodily harm – consideration of alcohol rehabilitation – specific deterrence – general deterrence – sentenced to an intensive corrections order – community service work condition

R v Woutersz [2018] ACTSC 36
Uploaded 28 February 2018
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the person – manslaughter on grounds of diminished responsibility – assessment of level of mental impairment – whether culpability reduced where level of mental impairment exceeds level required for availability of manslaughter verdict – whether culpability increased by offender’s role in development of mental impairment through drug use – impact on culpability of troubled relationship between offender and victim.

R v Henry [2018] ACTSC 34 (SCC 108 of 2017)
Uploaded 28 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty

R v Bourne; R v Manns [2018] ACTSC 35 (SCC 109 of 2017; SCC 130 of 2017; SCC 145 of 2017; SCC 146 of 2017; SCC 194 of 2017)
Uploaded 28 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally inflict grievous bodily harm – demands accompanied by threats – trafficking in a controlled drug other than cannabis – receiving stolen property – pleas of guilty

Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33
Uploaded 28 February 2018
TORTS – NEGLIGENCE – duty of care – breach – causation – where car park user stepped in pothole or tripped on log in darkness en route from vehicle – whether inadequate lighting in outdoor car park – whether inadequate maintenance system – no breach established

Davey v Miller [2018] ACTSC 32
Uploaded 28 February 2018
APPEAL – Appeal from the Magistrates Court – appeal from convictions – whether the decision was unsafe and unsatisfactory – whether the Magistrate erred in admitting tendency evidence – whether findings of fact not open on evidence – DNA evidence – record of interview – whether Magistrate able to dismiss appellant’s denials of wrongdoing in interview without evidence of internal inconsistency or inherent implausibility – audio-visual recording – consideration of DNA evidence – only one of relevant circumstances
EVIDENCE – Tendency – s 97 of Evidence Act 2011 (ACT) – probative value of the tendency evidence – characterisation of conduct – Hughes v The Queen [2017] HCA 20; 92 ALJR 52 – purpose of adducing the tendency evidence in this case was to establish the identity of the offender – significance of the probative value of the tendency evidence is to be assessed in the light of other evidence called by the prosecution – species of circumstantial evidence

Dow v Elbarbary [2017] ACTSC 418
Uploaded 27 February 2018
CIVIL LAW – PERSONAL INJURY – DAMAGES – Motor Vehicle Accident – assessment of damages – whether and when plaintiff recovered from initial injury – whether plaintiff continued to experience physical and psychological sequelae from the accident – whether plaintiff had recovered – whether treatment claimed by plaintiff related to pre-existing lower back condition

LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27
Uploaded 27 February 2018
ADMINISTRATIVE LAW – Judicial Review Legislation – Prerogative Writs and Orders – Application for judicial review of proceedings – application for prerogative and declarative relief – whether the plaintiff could lawfully be found guilty of the charges – whether ACAT constructively failed to exercise its jurisdiction

Williams v The Queen [2018] ACTCA 4
Uploaded 27 February 2018
CRIMINAL LAW – APPEAL – Appeal against sentence – whether the sentence imposed was manifestly excessive

R v Simonetti [2018] ACTSC 31 (SCC 259 of 2017)
Uploaded 26 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography material – using a carriage service to solicit child pornography material – using a carriage service to distribute child pornography material – using a carriage service to menace, harass or cause offence – intentionally possess child exploitation material – pleas of guilty – no prior criminal record

Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [2018] ACTSC 25
Uploaded 23 February 2018
ADMINISTRATIVE LAW – whether duty to grant or decide to grant further lease had arisen under s 254(3) of the Planning and Development Act 2007 (ACT) –– whether surrender of old lease under s 254(1)(c)(i) must precede granting of a new lease of the Planning and Development Act 2007 (ACT)
ADMINISTRATIVE LAW – whether duty exercised “as soon as possible” within meaning of s 151B Legislation Act 2001 (ACT)
ADMINISTRATIVE LAW – remedies – writ of mandamus – discretion – whether order should be refused on the basis of futility – Supreme Court Act 1933 (ACT) s 34B

Legal Practitioner v The Law Society of the Australian Capital Territory [2018] ACTSC 29
Uploaded 23 February 2018
PRACTICE AND PROCEDURE – APPEAL – Preliminary issueAppeal against a decision of the Law Society of the Australian Capital Territory – decision to appoint manager of practitioner’s legal practice – nature of appeal – hearing de novo or rehearing – significant question relevant to leading evidence in appeal – statutory interpretation – legislative intention regarding nature of appeal – appeal is not limited to evidence of material before the Law Society during original decision

R v Cole [2017] ACTSC 404 (SCC 183 of 2016)
Uploaded 22 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charge of murder – reasonably significant prior criminal history – CADAS Report – Pre-Sentence Report – high risk of reoffending – objective seriousness –  lack of remorse – moral culpability not lessened by reason of effect of alcohol and drugs – significant utilitarian value of plea of guilty – difficult to assess prospects for rehabilitation – term of imprisonment imposed

Cranfield v The Queen [2018] ACTCA 3
Uploaded 21 February 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in providing a sentencing discount of 5% for the pleas of guilty – relevance of the offender’s mental health issues and prospects of rehabilitation – whether the sentence imposed was manifestly excessive

R v NL [2018] ACTSC 22 (SCC 308 of 2017; SCC 309 of 2017)
Uploaded 21 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – assault – guilty pleas – no prior criminal record

R v Lee [2018] ACTSC 21 (SCC 1 of 2017)
Uploaded 19 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt to possess commercial quantities of unlawfully imported border controlled drugs – guilty plea

Thompson v The Queen [2018] ACTCA 2
Uploaded 19 February 2018
APPEAL – CRIMINAL LAW – Severity appeal against sentence – aggravated robbery – robbery committed in company – co-offender – disparity between the sentences imposed on the offenders – parity principle – whether disparity in sentences was justified by differences in the subjective circumstances of the co-offenders – whether disparity in sentences was justified by differences in the objective seriousness of the offending – difference between offenders’ prospects of rehabilitation – difference between age of offenders – acknowledgement of relevant differences when sentencing co-offenders – whether appellant could establish a justifiable sense of grievance

Lewis v Australian Capital Territory [2018] ACTSC 19
Uploaded 16 February 2018
CRIMINAL LAW – PROCEDURE – Periodic detention – cancellation of offenders order – loss of liberty – inquiry into whether offender’s periodic detention obligations breached – legislation creating regime for automatic cancellation of periodic detention for failure to attend for periods held valid – offender not afforded procedural fairness – offender ultimately not required to serve balance of sentence either as periodic detention or full-time imprisonment – Crimes (Sentence Administration) Act 2005 (ACT)
TORTS – FALSE IMPRISONMENT – Damages – general damages for false imprisonment – public law damages – diminished reputation pleaded – economic impact of false imprisonment – aggravated damages – quantum of damages – nominal damagesCIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Unlawful arrest or detention – compensation for – whether award of damages for statutory right should include both compensation and vindication – public law remedy – s 18(7) of the Human Rights Act 2004 (ACT)

R v Kandola [2017] ACTSC 403 (SCC 125 of 2016)
Uploaded 15 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three charges of using a carriage service to transmit child pornography material – Forensic Mental Health Report – Pre-Sentence Report – medium risk of general reoffending – criminal history – offender subject to Good Behaviour Orders – background and alcohol and drug use – mental health – pleas of guilty – difficult to determine if pleas evidence real remorse – willingness to facilitate justice – Intensive Correction Order

Limelight Cinemas Pty Ltd v Beatty [2018] ACTSC 18
Uploaded 15 February 2018
APPEAL – TORTS – Negligence – breach of duty – causation – respondent injured falling down stairs in a cinema theatre – whether error in finding breach of duty by occupier – whether error in finding that any breach of duty of care caused injury – appeal upheld with costs

R v Marsh [2017] ACTSC 405 (SCC 4 of 2016)
Uploaded 14 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – found guilty after trial by jury of 10 counts of indecent assault and one count of buggery – historic offences – Crimes Act 1900 (ACT) ss 79 and 81 as at 1979 and 1980 – offender was school teacher and coach of victim –– certain circumstances taken into account in determining objective seriousness of offences – offences in low, mid and upper range – high moral culpability – whether maximum penalty applies in relation to offences of indecent assault – whether to take into account legislature’s change in attitude – whether minimum penalty applies in relation to offence of buggery – Crimes (Sentencing) Act 2005 (ACT) s 7 – subjective features – person of otherwise good character – carer for mother – age and ill-health – terms of imprisonment imposed

R v Masling [2017] ACTSC 401 (SCC 2 of 2017)
Uploaded 14 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious offences – deferred sentence orders – opportunity to address issues leading to being involved in trafficking in illicit drugs – suspended sentences of imprisonment – Good Behaviour Order

R v ME [2017] ACTSC 402 (SCC 25 of 2017, SCC 27 of 2017)
Uploaded 13 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Young offender – serious offending – promoting rehabilitation of young offenders

R v Morris [2017] ACTSC 400 (SCC 197 of 2017)
Uploaded 13 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Obtaining property by deception – significant offence – no prior convictions – financial pressure – good prospects of rehabilitation – low likelihood of re-offending – full-time imprisonment – reparation order – prisoner at risk

AB v Australian Capital Territory [2018] ACTSC 16
Uploaded 12 February 2018
TORTS – NEGLIGENCE – Personal injury - liability of hospital for actions of a misbehaving patient – damages

The Legal Practitioner DC v The Law Society of the ACT [2017] ACTCA 32
Uploaded 9 February 2018
PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS Directions in relation to the conduct of appeal and proceedings seeking removal of legal practitioner from roll – turns on own facts

Agresti v The Queen [2017] ACTCA 20
Uploaded 9 February 2018
CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – particular offences – offences against the person – sexual offences – sexual intercourse without consent – intoxication of the complainant – where the complainant had “snippets of memories” – whether the complainant was unconscious during sexual intercourse – whether the appellant was reckless as to the complainant’s consent.

CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – trial judge’s direction to jury – whether the complainant’s consent was caused by the effect of intoxicating liquor – correct test for causation under s 67(1)(e) of the Crimes Act 1900 (ACT) – trial judge’s direction erroneous – appeal upheld on this ground – conviction and sentence set aside – new trial ordered.

CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – whether verdict is unreasonable and cannot be supported by the evidence – open to the jury to find the appellant guilty beyond reasonable doubt – appeal dismissed on this ground.

R v Ingram [2017] ACTSC 398 (SCC 233 of 2016)
Uploaded 7 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug – unlawful possession of stolen property – failing to answer bail – offending while subject to conditional liberty – significant residential rehabilitation

Ruby Schrattenholz [2017] ACTSC 416 (SCC 175 of 2016; SCC 176 of 2016)
Uploaded 7 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – assault occasioning actual bodily harm – scheduled offences – burglary committed in company – intention to do harm to person within the premises burgled – victim’s children present – prospects of rehabilitation – no criminal history – no history of use of illicit drugs – no history of antisocial behaviour – offender has recently had a young child – no penalty other than imprisonment appropriate – suspended sentence and Good Behaviour Order

R v Stefanac [2017] ACTSC 415 (SCC 258 of 2016; SCC 259 of 2016)
Uploaded 6 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – guilty plea – street fight – initial fight unprovoked – excessive self-defence during extended fight – offence inflicted permanent disability on the complainant – tip of finger bitten off – offender otherwise of good character – low risk of reoffending – sentence of imprisonment served by way of Intensive Corrections Order with a period of community service

R v Matthew [2017] ACTSC 413 (SCC 96 of 2016)
Uploaded 6 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – arson – fire damage to vehicle, garage and house – young female offender – no previous convictions – partially suspended sentence of imprisonment

R v Kepaoa [2017] ACTSC 414 (SCC 215 of 2017; SCC 216 of 2017)
Uploaded 5 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – common assault – offender intoxicated – repeated punches to the face and jaw – early plea of guilty – full admissions to police – low risk of reoffending – no penalty other than imprisonment appropriate – Intensive Corrections Order Assessment ordered

Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 4) [2018] ACTSC 15
Uploaded 5 February 2018
PROCEDURE – SUPREME COURT PROCEDURE – orders – importance of orders of court – effect of order – integrity of registry records
PROCEDURE – SUPREME COURT PROCEDURE – orders – amendment of orders – slip rule – order amended

In the matter of the adoption of PT [2018] ACTSC 14
Uploaded 2 February 2018
ADOPTION – Application to dispense with consent of birth parents – whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – whether application outstanding in Childrens Court produces uncertainty – application dismissed

Commissioner for ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2018] ACTSC 10
Uploaded 1 February 2018
COSTS – Application for summary judgment dismissed – Defendants failed to file written submissions in accordance with directions – Defendants belatedly raised significant argument – Costs orders as compensatory rather than punitive

Quach v RU [2017] ACTCA 63
Uploaded 1 February 2018
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Whether leave to appeal for an interlocutory order should be granted – Whether leave to appeal out of time against final orders should be granted – Whether judge was eligible for judicial appointment

R v Kulczycki [2018] ACTSC 9 (SCC 289 of 2017)
Uploaded 1 February 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – blackmail – stalking

R v Ridgeway [2018] ACTSC 8
Uploaded 31 January 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – pleas of guilty

R v Musolino [2018] ACTSC 3 (SCC 284 of 2017)
Uploaded 31 January 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aid and abet unlawful confinement – aid and abet assault occasioning actual bodily harm – assault occasioning actual bodily harm – guilty pleas – young offender

R v Bourke [2018] ACTSC 5 (SCC 148 of 2017; SCC 149 of 2017; SCC 150 of 2017; SCC 151 of 2017)
Uploaded 31 January 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted sexual intercourse without consent – recklessly inflict grievous bodily harm – assault occasioning actual bodily harm

Director-General Community Services Directorate v HJ [2018] ACTSC 6
Uploaded 30 January 2018
APPEAL – COSTS – Children and Young People Act 2008 (ACT) – appeal from order made for costs to be paid by the appellant in proceedings brought under the care and protection chapters – whether Children and Young People Act 2008 (ACT) operates to the exclusion of the general costs discretion under the Court Procedures Rules 2004 (ACT) – whether the specific provisions of the Children and Young People Act 2008 (ACT) overrule the more general costs provisions in the Court Procedures Rules 2004 (ACT) – legal error established – appeal upheld

The Owners of Unit Plan 932 v De Andrade (nee Marhaba) (No 3) [2017] ACTSC 410
Uploaded 17 January 2018
PRACTICE AND PROCEDURE COSTS –Proceedings  by Sheriff to remove caveats from title to property subject to sale and seizure order – fixed sum indemnity costs order appropriate

Palmer v Registrar-General of Land Titles of the Australian Capital Territory [2017] ACTSC 407
Uploaded 17 January 2018
BANKRUPTCYFOREIGN TRUSTEE – Australian representatives appointed under Cross-Border Insolvency Act 2008 (Cth) – whether foreign trustee entitled to be registered as proprietor of immovable property by virtue of recognition of foreign proceedings under the Cross-Border Insolvency Act 2008 (Cth)

In the matter of the adoption of MS [2017] ACTSC 412
Uploaded 22 December 2017
ADOPTION – Application to dispense with consent of birth mother and father – whether requirements of s 35 Adoption Act 1993 (ACT)satisfied – other circumstances that justify the requirement for consent to be dispensed with – consent dispensed with

In the matter of the adoption of CD [2017] ACTSC 411
Uploaded 22 December 2017
ADOPTION –Application to dispense with consent of birth mother – whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – other circumstances that justify the requirement for consent to be dispensed with – consent dispensed with


II Developments Pty Ltd v II Developments JV Pty Ltd [2017] ACTSC 408
Uploaded 22 December 2017
CORPORATIONS – WINDING UP – Joint-venture company – role of company at an end – breakdown in the relationship between the shareholders – it is just and equitable that the company be wound up

R v CO [2017] ACTSC 391 (SCC 201 of 2017: SCC 232 of 2017)
Uploaded 22 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –offender aged 17 at time of offences – sexual intercourse with person under the age of 16 years – acts of indecency upon a person under 16 years – sexual activity involving two young people in relationship – offences of low-range seriousness – not clear that no penalty other than imprisonment would be appropriate – conviction, good behaviour order and community service obligation sufficient to indicate community disapproval – inappropriate to include offender on child sex offenders register

Kalis v New (No 2) [2017] ACTSC 406
Uploaded 22 December 2017
PRACTICE AND PROCEDURE – MISCELLANOUS POWERS OF COURT AND JUDGES – power to amend reasons – whether amendment of substance – addendum to be published with reasons

R v Andison [2017] ACTSC 390 (SCC 93 of 2017)
Uploaded 21 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – damage property – fitness to plead issue – offender found fit to plead – unclear description of offender’s disabilities – clear mild intellectual disability and various behavioural difficulties – application of Verdins principles – reliance on support of EveryMan Australia in determining sentence.

CP v Director-General of Community Services Directorate and Ors [2017] ACTSC 394
Uploaded 21 December 2017 
APPEALAPPEAL FROM THE CHILDRENS COURT – Care and protection order – alleged error in interpretation of withdrawal of cross-application – whether concession that the children required an order had been made – alleged error in concluding appellant agreed that the orders were necessary – alleged inadequacy of written reasons by Magistrate – alleged breach of Browne v Dunn – challenge to the finding that each child was in need of care and protection – fresh evidence – appeal upheld

R v Nchucki (No 2) [2017] ACTSC 387 (SCC 172 of 2016 : SCC 174 of 2016)
Uploaded 20 December 2017| 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – finding of guilt following a judge-alone trial – trafficking in a controlled drug other than cannabis – possessing a prohibited weapon

R v Jacky [2017] ACTSC 392 (SCC 215 of 2016: SCC 166 of 2017: SCC169 of 2017)
Uploaded 19 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflict grievous bodily harm – threaten a witness in a criminal investigation – late plea of guilty – no sentence other than a sentence of imprisonment appropriate – significant time in custody attributable to the subject offences – offender in custody for other offences – offender the subject of other suspended – sentence orders – offender assessed as suitable for Intensive Corrections Order – cancel suspended sentence and resentence – imprisonment to be served by way of Intensive Corrections Order 

Vinh v Christensen [2017] ACTSC 389
Uploaded 19 December 2017
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – prosecution for food hygiene offences – breaches of the Food Standards Code – whether magistrate erred by failing to consider current sentencing practices – whether magistrate departed from the standard level of fines for matters of a similar nature manifested error – whether magistrate failed to properly apply the principles of totality – whether sentences imposed were manifestly excessive – general deterrence – specific deterrence – appeal dismissed

Bilal v Nine Network Australia Pty Ltd [2017] ACTSC 388
Uploaded 18 December 2017
TORTSDEFAMATION – Application to strike out imputations – whether imputations capable of arising – sensational television broadcast – particulars of claim for loss to businesses – need for proper particulars in or accompanying statement of claim

Bartlett v The Queen [2017] ACTCA 60
Uploaded 18 December 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLESIn General and Right of Appeal – appeal against conviction – admissibility of tendency evidence concerning past violent conduct of the complainant – judicial directions

Ginninderra Properties Pty Ltd v Gelonese [2017] ACTSC 362
Uploaded 18 December 2017
APPEAL – PROCEDURE – Costs – error in Court below – opportunity to be heard of costs – construction of clause in lease – whether clause in lease is inconsistent with the Leases (Commercial and Retail) Act 2001 (ACT).

R v BG [2017] ACTSC 382 (SCC 49 of 2017: SCC 50 of 2017)
Uploaded 18 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – cultivate cannabis plant for sale – possess child exploitation material – possessing a prohibited substance – possessing a drug of dependence.

Practitioner D3 v ACT Civil and Administrative Tribunal [2017] ACTCA 62
Uploaded 15 December 2017
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE Leave to appeal – application for leave to appeal out of time – principles governing extension of time – length of delay – reasons for delay – wider public interest – whether case raises questions of general importance

Dukic v McCarthy [2017] ACTSC 381
Uploaded 15 December 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against conviction – drive using hand held mobile phone – whether the evidence was capable of establishing the offence beyond reasonable doubt.


Smith v Pangallo [2017] ACTCA 61
Uploaded 15 December 2017
APPEAL – PERSONAL INJURY – Pedestrian and motor vehicle accident – second defendant appealed assessment of general damages, assessment of contributory negligence, assessment of plaintiff’s creditworthiness, failure to admit evidence  – cross-appeal on contributory negligence – consideration of evidence of plaintiff’s creditworthiness – admissibility of pleadings, judgments and orders in other proceedings –  Evidence Act 2011 (ACT) ss 69, 91 – apportionment of liability –  primary judge’s consideration of all the relevant circumstances – Civil Law (Wrongs) Act 2002 (ACT) s 102(1) – consideration of previous awards of damages in other cases – long history of medical complaints in present case as well as serious non-accident related conditions

Dordevic v Moore [2017] ACTSC 320
Updated 15 December 2017
PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application to proceed with claim despite non-compliance – remedy of non-compliance – whether it is in the interests of justice to proceed with claim – whether there was reasonable excuse for delay -  whether the delay caused prejudice to the defendant

R v Zhao [2017] ACTSC 385 (SCC 41 of 2017)
Uploaded 15 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled substance other than cannabis, namely methylamphetamine and heroin – offender’s evidence not accepted – attempt to minimise involvement in drug enterprise – better than average prospects of the offender upon release – importance of deterrence.


R v Wyatt (No 3) [2017] ACTSC 383 (SCC 42 of 2017:  SCC 43 of 2017)
Uploaded 15 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – bail – inability   to adhere to an intensive rehabilitation regime – offender’s present position – deterioration of mental condition – term of imprisonment – eligibility for parole


R v Solomons [2017] ACTSC 384 (SCC 236 of 2017)
Uploaded 15 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm.

R v Mohammadi [2017] ACTSC 376 (SCC 36 of 2017)
Uploaded 15 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – dishonestly obtain property by deception – attempt to dishonestly obtain property by deception – using a false document to obtain a gain – plea of guilty at the earliest opportunity – balancing general deterrence with rehabilitation – exceptional circumstances surrounding offending conduct unlikely to repeat themselves – pro-social factors and stable employment – planned nature of the offending conduct – Good Behaviour Order and sentences of imprisonment imposed – sentences of imprisonment fully suspended upon entering into a Good Behaviour Order – community service work order

Cockburn v Jacobsen [2017] ACTSC 380
Uploaded  14 December 2017
TORTS – NEGLIGENCEContributory negligence – damages – motor vehicle accident – whether the first defendant breached his duty of care – whether first defendant’s response was affected by extraordinary circumstances – no breach of duty found

R v Hodge [2017] ACTSC 373 (SCC 74 of 2017; SCC 75 of 2017)
Uploaded 14 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – dishonestly riding in a motor vehicle without the consent of the owner – aggravated burglary – minor theft – plea of guilty at the earliest possible stage – turns on own facts

Commissioner for ACT Revenue v Arcidiacono t/as Rose Cleaning Service [2017] ACTSC 379
Uploaded 13 December 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 1146 – application by plaintiff for summary judgment –notices of assessment issued claiming outstanding payroll tax liability – taxation scheme under the Taxation Administration Act 1999 (ACT) – defendants asserted jurisdictional error and other defences – arguable defence challenging liability identified

Mohamed & Anor v Adrija Pty Ltd [2017] ACTSC 158
Uploaded 13 December 2017
APPEAL CIVIL LAW – Appeal from the Magistrates Court – appeal against decision finding termination of contract lawful – appeal against damages arising from termination of contract – Magistrate erred in finding breach notice valid – substantive issues still requiring determination at first instance – matter in part remitted to the Magistrates Court

CONTRACTBUILDING CONTRACT – Termination of contract – whether failure to make payment at certain stage of contract entitles termination of the contract – validity of breach notice – Magistrate erred in not making any determination as the validity of the subsequent breach notices

Oliver v Roberts [2017] ACTSC 360
Uploaded 13 December 2017
CIVIL LAW PERSONAL INJURY – Motor-vehicle accident – assessment of damages – extent of cognitive impairment from traumatic brain injury – damages awarded.

MENTAL HEALTH – Application to set aside litigation guardian – application based on medical evidence – no mental disability – litigation guardian set aside

R v Alas [2017] ACTSC 272
Uploaded 13 December 2017
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – whether the probative value of the evidence outweighs its potential prejudicial effect


R v Alas (No 2) [2017] ACTSC 333
Uploaded 12 December 2017
EVIDENCEJUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Evidence of sexual activities of the complainant – application to admit evidence only admissible with leave of the Court – leave granted to adduce sexual relationship evidence from the complainant in cross-examination – operation of definition of “proper matter for cross-examination about credit” where evidence is also relevant for a non-credibility purpose

M M International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd [2017] ACTSC 374
Uploaded 12 December 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal out of time.

R v Abuuh [2017] ACTSC 375 (SCC 23 of 2017)
Uploaded 12 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual assault in the third degree – aggravated robbery – sexual intercourse without consent – attempted sexual intercourse without consent in company.

R v NO [2017] ACTSC 372
Uploaded 12 December 2017
CRIMINAL LAW – EVIDENCE – Relevance – Evidentiary Matters Relating to Witnesses and Accused Persons – Complaints – application to cross-examine complainant and accused on sexual history – whether accused and complainant engaged in “rough sex” – whether complainant’s use of dating website is inconsistent with claim of being “madly in love” with accused made to explain resumption of relationship after alleged violent rape – whether leave is necessary – leave given if required.

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – Offences Against Decency and Morality – sexual assault – sexual intercourse without consent – assault occasioning actual bodily harm – act of indecency.

R v Watson; R v. Palmer; R v Nicholas [2017] ACTSC 363
Uploaded 12 December 2017
CRIMINAL LAW – EVIDENCE Judicial Discretion to admit or exclude Evidence – whether the accused’s refusal to provide his name to police is indicative of a consciousness of guilt.

Stubbs v The Queen [2017]ACTCA 58
Uploaded 12 December 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES –Points and Objections not Taken Below – Appeal against conviction – whether the conduct of the appellant was capable, at law, of making out the offence – whether the appellant received a fair trial.

Hall v Hanson [2017] ACTSC 369
Uploaded 12 December 2017
TORTS – DEFAMATION – Defences – defence of contextual truth – whether appropriate to strike out contextual imputations prior to trial – qualified privilege at common law – whether privilege established because publication was made to a wide audience – application dismissed – s 136 of the Civil Law (Wrongs) Act 2002 (ACT)

Wyper v The Queen; R v Wyper [2017] ACTCA 59
Uploaded 12 December 2017
APPEAL – GENERAL PRINCIPLES – Appeal against conviction – whether verdict is unreasonable or cannot be supported having regard to the complainant’s evidence – complainant’s credibility and reliability as a witness  – whether failure to put defence case to jury resulted in miscarriage of justice – whether leave is required where alleged failure to put defence case – whether failure to give appropriate direction about onus of proof regarding alleged motive to lie – no objection taken  

APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – whether sentence manifestly inadequate – intensive correction order – nature of sentencing discretion – sentencing principles in family violence offences – not typical family violence offence – nature of intensive correction orders

Insurance Australia Limited t/as NRMA Insurance [2017] ACTSC 361
Uploaded 11 December 2017
PROCEDURE – Miscellaneous procedural matters – application for relief from the obligation to serve material on the other party – ex parte application.

Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57
Uploaded 8 December 2017
PRACTICE AND PROCEDURE – APPLICATION ­­– Application for leave to appeal an interlocutory decision of a judge of the Supreme Court pursuant to r 5311 of the Court Procedures Rules 2006 (ACT) – decision refusing party leave to withhold notification of surveillance material and service of medical reports based upon surveillance material – decision not attended with sufficient doubt to warrant it being reconsidered

R v Palmer [2017] ACTSC 357 (SCC 86 of 2017)
Uploaded 8 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse without consent – guilty plea – young offender – factors taken into account in assessing the gravity of offences – violence – explicit lack of consent – mid range of objective seriousness – partially suspended sentence

Section 79 Pty Ltd as Trustee for the 79 Trebla Family v Suburban Land Agency [2017] ACTSC 370
Uploaded 8 December 2017
CIVIL LAW – CONTRACT – PLANNING AND DEVELOPMENT commercial contract for sale of land – dispute over pedestrian access easement – contract not completed – whether crown lease was on substantially the same terms as specimen lease – whether plaintiff rescinded the contract – whether plaintiff elected to forgo any right of rescission – whether defendant repudiated the contract – town planning in the ACT

Stafrace v Carter [2017] ACTSC 371
Uploaded 8 December 2017
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – sentences alleged to be manifestly excessive – possession of a prohibited weapon – prohibited weapon being a taser – common assault – family violence offence – appellant has a long standing illicit drug addiction – sentences manifestly excessive – appeal upheld – specific deterrence – appellant resentenced – consideration of time previously spent in custody and residential rehabilitation in regard to these offences

R v McLaws [2017] ACTSC 355 (SCC 61 of 2017; SCC 62 of 2017)
Uploaded 7 December 2017 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – transfer charge to be taken into account for sentencing – minor theft – late guilty plea in the face of a strong prosecution case – low range of objective seriousness – previous offending – specific deterrence

Catanzariti v Muller [2017] ACTSC 365
Uploaded 7 December 2017
PRACTICE AND PROCEDURE ­– APPLICATION – Application to withhold notification to the plaintiff of surveillance material and to not serve expert reports based on surveillance material – application already the subject of interlocutory orders by another judge – need for good reason to depart from earlier orders – no good reason – application dismissed

R v IB [2017] ACTSC 366
Uploaded 7 December 2017
APPLICATION – Jury Trial – Application to discharge the jury – charges of committing acts of indecency without consent and sexual intercourse without consent – no appearance by the accused – whether trial could continue in absence of the accused – the accused voluntarily absented himself – consideration of interests of complainant – right to be present may be waived by an accused person

R v HU [2017] ACTSC 367
Uploaded 6 December 2017
APPLICATION – Pre-Trial Application – application to cross-examine the complainant as to prior sexual activity – limited to conversations between the accused and the complainant concerning sexual activities – Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 51 – Court must be satisfied that the evidence has substantial relevance to facts in issue – written reasons required where leave is given

Insurance Australia Limited v Mannall [2017] ACTSC 368
Uploaded 6 December 2017
PRACTICE AND PROCEDURE – Application for leave to discontinue proceedings – where no disadvantage or irremediable injustice – whether indemnity costs appropriate

Wreck Bay Aboriginal Community Council v Williams (No 2) [2017] ACTCA 56
Uploaded 1 December 2017
COURT OF APPEAL – PRACTICE AND PROCEDURE – Costs – Attorney-General intervener – whether intervener should pay a portion of the successful party’s costs – consideration of s 27(4) of the Court Procedures Act 2004 (ACT) – whether “special reasons” exist for making an order for costs against the Attorney-General – no “special reasons” found – no order as to costs

R v Krutsky; R v Weldon [2017] ACTSC 359 (SCC 171 of 2017; SCC 172 of 2017; SCC 134 of 2017; SCC 326 of 2017)
Uploaded 1 December 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm.

Leighton v The Queen [2017] ACTCA 55
Uploaded 30 November 2017
CRIMINAL LAW – APPEAL – Appeal against sentence – sentence not manifestly excessive – appeal dismissed
APPEAL – APPLICATION FOR ADMISSION OF FURTHER EVIDENCE – Verdins principles not satisfied – further evidence does not satisfy identified thresholds – application dismissed

R v Mooney [2017] ACTSC 358 (SCC 210 of 2016)
Uploaded 28 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  property offences – obtain property by deception – pleas of guilty – breach of employer’s trust – sustained course of conduct – victim impact statements – where offender has post-traumatic stress disorder – no causal connection between post-traumatic stress disorder and offence – white collar crime – general and specific deterrence – full-time imprisonment – reparation order

MC v The Director General of the Community Services Directorate [2017] ACTSC 354
Uploaded 28 November 2017
APPEAL – Appeal from Childrens Court – interim care and protection orders – nature of appeal – whether judicial discretion involved in statutory test – CHILDREN – whether making of order pursuant to s 424 of the Children and Young Persons Act 2008 (ACT) is a discretionary exercise of power – whether there was an improper exercise of discretion – whether the appellant was afforded procedural fairness – whether care and protection principles were considered – whether orders made in relation to contact were appropriate

Laipato v Truman [2017] ACTSC 351
Uploaded 27 November 2017
CRIMINAL LAW – APPEAL AGAINST CONVICTION – self-represented defendant – magistrate rules incorrectly about admissibility of questions asked in cross-examination – no evidence on appeal as to basis for or content of proposed questions – application of the proviso in appeals governed by s 218 of the Magistrates Court Act 1930 (ACT) – no miscarriage of justice – appeal dismissed

Booth v Navarro [2017] ACTSC 353
Uploaded 24 November 2017
PRACTICE AND PROCEDURE – Interrogatories – whether relevant and necessary – power to amend – whether ‘fishing’ – whether matter of opinion – knowledge, information and belief – scope of obligation on individual to make enquiries

Langton v Western Sydney Local Health District [2017] ACTSC 352
Uploaded 24 November 2017
PRACTICE AND PROCEDURE – Jurisdiction of Courts (Cross-vesting) Act 1993 – application to transfer – whether transfer in the interests of justice

R v Al-Harazi (No 7) [2017] ACTSC 350 (SCC 207 of 2015)
Uploaded 23 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – offences against the person – murder – victim died as a result of multiple stab wounds – offender found guilty at trial by jury – circumstantial evidence case – family violence offence – mental state of the offender – Verdins principles – offender found fit to plead prior to commencement of trial – offender a non-Australian citizen on a residential visa – sentenced to a term of imprisonment for 30 years

R v Christopher Pattman; R v Stephen Pattman [2017] ACTSC 331 (SCC 188 of 2016; SCC 189 of 2016; SCC 190 of 2016)
Uploaded 17 November 2017 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act endangering life – discharging a loaded arm – shooting in residential area – scheduled offences – unauthorised possession of prohibited firearm – unauthorised possession of ammunition –late pleas of guilty – use of term “outlaw motorcycle gang” – ACT Rebels – offenders’ attempts to leave motorcycle gang – entry into gang to protect daughter in relationship with senior gang member – son involved in offences to support father – possession of firearms for defensive purposes not a mitigating factor – consideration of “comparable cases”.

Marsh v The Queen [2017] ACTCA 54
Uploaded 17 November 2017
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – Leave to appeal – application for leave to appeal out of time.

AA v McDevitt [2017] ACTSC 342
Uploaded 17 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – appeal against conviction – offences against the person – meaning of grievous bodily harm – where injuries involved potential harm – appeals against total sentence and individual sentences – whether manifestly excessive – offences objectively serious

R v KB [2017] ACTSC 344 (SCC 154 of 2017)
Uploaded 17 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – blackmail – plea of guilty – social media – vigilantism – serious impact on victim and LGBTI community – strong subjective factors – rehabilitation – general deterrence important – intensive correction order with community service

R v LT [2017] ACTSC 343 (SCC 265 of 2016)
Uploaded 17 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – violent offences – recklessly inflict grievous bodily harm – complicity and common purpose – co-offenders – parity in sentencing – offender’s substance abuse – offender experienced significant trauma leading up to offence – offender is sole carer for dependants – offender not suitable for intensive corrections order – suspended sentence with community service condition

Stewart v Greenup [2017] ACTSC 345
Uploaded 17 November 2017 
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – property offences – whether sentencing magistrate erred in imposing a good behaviour order which ran concurrently with the parole period – prospects of rehabilitation – failure to give reasons – lengthy nonparole period – error of law

In the Estate of Holtkamp [2017] ACTSC 346
Uploaded 17 November 2017
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Wills – where document not executed in accordance with formal requirements of Wills Act 1968 (ACT) – lack of two witnesses signing document – where Court satisfied that a document exists purporting to embody testamentary intention and that the deceased intended the document to constitute his will – declaration that the document constitutes the Will made

R v Papadakis [2017] ACTSC 341 (SCC 54 of 2017; SCC 55 of 2017)
Uploaded 17 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – trafficking in a controlled drug other than cannabis – possessing a prohibited weapon – dealing with proceeds of crime – possession of cannabis – possession of a drug of dependence, namely methylamphetamine – user/dealer – engaged in drug dealer to fund own habit and lifestyle – no weight given to criminal history – rehabilitation of offender a significant factor for sentencing – general deterrence – Intensive Corrections Order made following assessment of suitability – community service work condition

R v Hyde [2017] ACTSC 337 (SCC 260 of 2017)
Uploaded 16 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled drug other than cannabis – user/dealer – prior criminal convictions of a similar nature – positive factors towards rehabilitation – consideration of lowest level of objective seriousness – general deterrence – specific deterrence – partially suspended sentence of imprisonment

R v Deng [2017] ACTSC 338 (SCC 282 of 2016)
Uploaded 16 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – offences against the person – grievous bodily harm – “one punch” attack – single charge – early guilty plea – lower range of objective seriousness – victim required the surgical implantation of pins and plates to stabilise and realign jaw – young offender – offender takes responsibility for offence – offender demonstrates insight into offence – strong prosocial factors – consideration of employer references – psychologist reports – general deterrence – no punishment other than a sentence of imprisonment appropriate – Intensive Corrections Order

The Owners of Units Plan 932 v De Andrade (nee Marhaba) (No 2) [2017] ACTSC 339
Uploaded 15 November 2017
ES 2 of 2016
ES 3 of 2016
REAL PROPERTY – CAVEATS – Lodgement of a caveat following a sale and seizure order – property seizure following unpaid judgment debt – removal of caveat from register pursuant to s 105(2)(b) of the Land Titles Act

Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No. 3) [2017] ACTSC 340
Uploaded 15 November 2017
PRACTICE AND PROCEDURE – application for stayof operation of garnishee notices – whether serious question to be tried – whether balance of convenience favours injunctive relief

R v Bright [2017] ACTSC 328 (SCC 191 of 2017; SCC 269 of 2017; SCC 270 of 2017)
Uploaded 15 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pleas of guilty – breach of Good Behaviour Orders – resentence – aggravated burglary – drive motor vehicle without consent – joint commission theft – take motor vehicle without authority – unlawful possession of stolen property – drive while disqualified – drive while licence suspended by law – specific deterrence – general deterrence – rehabilitation a significant factor in sentencing – totality of sentence

Grigg v University of Canberra [2017] ACTSC 332
Uploaded 13 November 2017
LITIGATION GUARDIAN – litigation guardian due to disability by infancy – litigation guardian due to disability by mental incapacity – Court Procedures Rules 2006 (ACT) – Supreme Court Rules 1937 (ACT) – authority of guardian ceases when plaintiff reaches age of majority – consent and undertaking to act as litigation guardian – wishes of the plaintiff – proper supervision of the plaintiff’s financial affairs

BI v The Queen [2017] ACTCA 53
Uploaded 13 November 2017
APPEAL – PRACTICE AND PROCEDURE – Application for a stay of sentence pending the finalisation of an appeal – application for bail – special or exceptional circumstances.

Baker v Kolmar [2017] ACTSC 335
Uploaded 13 November 2017
CIVIL LAW – PERSONAL INJURY – Motor-vehicle accident – two accidents – assessment of damages – apportionment between defendants in two accidents the subject of separate proceedings – chronic-pain disorder – turns on own facts

Lising Nominees Pty Ltd v Monkton Pty Limited [2017] ACTSC 336
Uploaded 13 November 2017
PARTNERSHIP – whether partnership agreement breached – where no breach of fiduciary duty established  
PROPERTY – where parties were co-owners of a property – no breach of any obligation established

Kalis v New [2017] ACTSC 334
Uploaded 10 November 2017
CIVIL LAW – APPEAL – Re-hearing – motor vehicle accident – whether accident caused by negligent driving – civil standard of proof – balance of probabilities – learned Magistrate erred in identifying a significant number of facts – case turns on its facts – appeal allowed – consideration between parties as to resolution of damages
TORTS – NEGLIGENCE – Duty of care – whether defendant breached her duty of care – failure to exercise reasonable care and skill – breach of duty was a cause of the collision – contributory negligence not pleaded by defendant

Naqvi v The Queen [2017] ACTCA 52
Uploaded 10 November 2017
APPEAL – CRIMINAL LAW – Appeal against sentence – unlawful confinement of another person – sexual intercourse without consent – recklessly inflicting actual bodily harm – whether sentence was manifestly excessive – serious sexual and other assaults committed during confinement the subject of separate charges – length of sentence for unlawful confinement – relationship between sentence for unlawful confinement and sentences for sexual and other assaults committed during course of confinement – sentence not manifestly excessive – appeal dismissed

R v Le Pavoux [2017] ACTSC 330; SCC 222 of 2016; SCC 254 of 2016
Uploaded 8 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – traffic offences – drive while disqualified – drive unregistered vehicle – drive uninsured vehicle – drug offences – traffic in drug other than cannabis – traffic in methylamphetamine – pleas of guilty – offender with prior relevant criminal history – offender with drug and alcohol abuse issues – offender accepted into residential rehabilitation facility – time spent on bail and backdating sentence

Council of the Law Society of the ACT v Legal Practitioner [2017] ACTSC 329
Uploaded 6 November 2017
EVIDENCE – AFFIDAVITS – Application to use an affidavit sworn in other proceedings but not read in those proceedings – consideration of a disciplinary complaint against a legal practitioner – Harman undertaking – leave given to the plaintiff to use the affidavits to further investigate the complaint

R v CG [2017] ACTSC 326 ( SCC 289 of 2016;  SCC 73 of 2017)
Uploaded 6 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtaining property by deception – joint commission – additional offence to be taken into account –unlawfully possess property that was reasonably suspected of being stolen or unlawfully obtained – guilty plea – assistance to authorities – young offender – no previous convictions

R v Igwebuike [2017] ACTSC 323
Uploaded 6 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug Offences – Nigerian citizen studying in Australia – import of commercial quantity of methamphetamine – offender more than “mere courier” – offender played “important and essential” role – serious example of offence – indication of regret from offender – remorse not clear – prior good conduct not significant mitigating factor – exemplary conduct in custody – offender socially isolated in prison and in Australia – period of incarceration may weigh heavily – need for sentencing discretion to be exercised so as to maintain consistency for federal offences – focus on general deterrence – no guilty plea but significant number of admissions – willingness to facilitate course of justice – likelihood of deportation irrelevant in setting non-parole period – loss of visa not extra-curial punishment.

LC by his litigation guardian KS v Australian Capital Territory
Uploaded 6 November 2017
NEGLIGENCE – defendant responsible for management of hospital – whether defendant failed to put in place procedures to prevent plaintiff from harming himself – defendant denied liability – expert evidence – Mental Health (Treatment and Care) Act 1994 (ACT) – obligation to ensure examination by doctor – assessment for involuntary detention – plaintiff apparently willing to comply – interpretation of Mental Health (Treatment and Care) Act 1994 (ACT) s 41(1)(b) – constructive refusal of treatment – balance of probabilities – failure to have the plaintiff assessed by a medical practitioner within the timeframe mandated by the Act and the consequent failure to obtain authorisation for involuntary detention under the Act – breach of duty of care – causal nexus between the breach of duty and the damage sustained by the plaintiff
DAMAGES - no claim for either past or future economic loss –General damages – Past out-of-pocket – Future out-of-pocket – Gratuitous services – Interest

R v Johnstone [2017] ACTSC 304; SCC 217 of 2015
Uploaded 2 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re‑sentence – breach of good behaviour order by further offending – driving a stolen and unregistered motorbike – possession of methamphetamine – possession of a knife – drug driving – dysfunctional upbringing – cannabis use from young age – Solaris program being undertaken in custody – residential rehabilitation after release also recommended – offender re‑sentenced – non‑parole period to end at end of Magistrates Court sentences currently being served.

R v Hart [2017] ACTSC 319; SCC 84 of 2011
Uploaded 2 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – second re-sentence for aggravated robbery – no further offending – failure to complete periodic detention – significant leniency in first re-sentence – removal of periodic detention requirement but re-imposition of significant community service obligation – current breach  of good behaviour order constituted by failing to perform all required community service – non-attendance for community service due to physical health problems – offender working full-time as skip delivery driver – employed by mother – whether part of offender’s wage could be paid to charity as alternative to performing community service – whether offender should serve outstanding sentence in full-time custody – offender given last opportunity to complete community service – period for completing community service extended.

STATUTES – Acts of Parliament – Interpretation – Crimes (Sentencing) Act 2005 (ACT) – suspended sentence – good behaviour order required for “the period during which the sentence is suspended or for any longer period” – period during which the sentence is suspended must be at least the length of the outstanding term of the sentence – no scope for serving a suspended sentence by good behaviour for less than the outstanding term of the sentence.

Strano v Australian Capital Territory [2017] ACTCA 51
Uploaded 2 November 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Limitation of actions – distinction between action in tort and action under human rights legislation.

R v Johnston [2017] ACTSC 280 (SCC 248 of 2016; SCC 249 of 2016)
Uploaded 1 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in cannabis and heroin – intensive correction order more effective in promoting rehabilitation but sufficiently burdensome to provide element of punishment – legislation precludes back-dating sentence to be served by intensive correction order – pre sentence custody taken into account by allowing more concurrency than otherwise appropriate.

R v IT [2017] ACTSC 271 (SCC 39 of 2017; SCC 181 of 2017; SCC 182 of 2017)
Uploaded 1 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender – aggravated robbery in company and in breach of good behaviour orders – relatively minor thefts effected through significant violence – aggravated dangerous driving – using an unregistered vehicle – using an uninsured vehicle – driving while unlicensed as a repeat offender – driving offences committed in breach of bail – no demonstrated remorse – assessment identifying borderline intellectual ability, Attention Deficit Hyperactivity Disorder, long-standing conduct disorder – possible drug addiction – rehabilitation may take priority over need for general deterrence.

R v Stretton [2017] ACTSC 313 (SCC 91 of 2013; SCC 197 of 2013; SCC 106 of 2016; SCC 107 of 2016; SCC 167 of 2017)
Uploaded 1 November 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –possession of  prohibited firearm – possession of ammunition – possession of prohibited substance – possession of drug of dependence – drive motor vehicle without consent – offences in breach of good behaviour order attached to suspended sentences – depression and anxiety – polysubstance use – importance of rehabilitation for young adult offenders – repeated adjournments to enable completion of residential rehabilitation – further offending while on bail – offender aware that drug abuse significant factor in re-offending – good behaviour order cancelled and original sentences imposed – need for completion of residential rehabilitation program – recommendation of one-to-one counselling to identify sources of anger.

Barlow v Law Society of the ACT [2017] ACTCA 45
Uploaded 1 November 2017
APPEAL – GENERAL PRINCIPLES – Interlocutory orders – appeal to be brought only with leave of the Court of Appeal – appeal incompetent – appeal dismissed – appellant to pay the respondents’ costs of the appeal
PROFESSIONS AND TRADES – LAWYERS – Practising certificate – appeal against Law Society’s refusal to issue and unrestricted practising certificate

R v Watson [2017] ACTSC 311
Uploaded 1 November 2017
CRIMINAL LAW – Bail – offender to be sentenced for drug trafficking and drug possession offences – long term cannabis use and recent use of other drugs – desirable for offender to participate in residential rehabilitation – bail granted for participation in residential rehabilitation.
STATUTES – Interpretation – scope of “special or exceptional” circumstances – interpretation of Bail Act 1992 (ACT) – operation of Human Rights Act 2004 (ACT) – preference for particular form of rehabilitation not relevant factor, but reasons for preference may be – residential rehabilitation now available in custody for un-sentenced male prisoners but not for un sentenced female prisoners – differential interpretation of “special or exceptional circumstances” for male and female prisoners – interpretation of “special or exceptional circumstance favouring grant of bail” to include availability of rehabilitation opportunity in community for female bail applicant while only male prisoners have access to residential rehabilitation in custody.

R v CD [2017] ACTSC 261 (SCC 84 of 2017; SCC 140 of 2017)
Uploaded 31 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on child under 16 years – use of carriage service to menace, harass or offend – act of indecency committed in breach of good behaviour order – carriage service offence committed in breach of bail – relatively early pleas of guilty – pleas spared child victim from need to give evidence – offender was victim’s de facto step-father – breach of trust – intoxication – victim impact statement.

R v Kelly [2017] ACTSC 285 (SCC 56 of 2017; SCC 57 of 2017)
Uploaded 31 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – minor theft – obtaining property by deception – no criminal history – alcohol and drug abuse from late teens – diagnosis of major depressive disorder and anxiety disorder – no criminal history – significant progress in rehabilitation – indications of remorse and shame – intensive correction order made.

R v Conway [2017] ACTSC 275 (SCC 22 of 2017)
Uploaded 31 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using carriage service to transmit indecent communications – using carriage service to solicit child pornography – delay in executing search warrants after identifying offender – presumption of harm even where victim possibly 16 or 17 – remorse and acceptance of responsibility – co-operation with law enforcement agency led to discovery of two offences – significant support from family and friends – general deterrence particularly important due to difficulty in detecting such offences.

Li v Mi (No. 2) [2017] ACTSC 318
Uploaded 30 October 2017
ARBITRATION - COMMERICAL ARBITRATION - Registration of interim arbitral award – no point of principle

Manny v Strong Law [2017] ACTSC 316
Uploaded 30 October 2017
PRACTICE & PROCEDURE – application for strike-out and summary judgment – whether reasonable cause of action disclosed – whether plaintiff ought be declared a vexatious litigant

R v Summerfield [2017] ACTSC 321; SCC 263 of 2017
Uploaded 30 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse with a young person under the age of 16 years – offender and victims’ in relationship – significant age difference between offender and victims’ – offender impregnated one of the victims’ – diagnosis of a mild intellectual disorder reduces moral culpability – significant criminal history for a young offender – plea of guilty – sentenced to a period of imprisonment

Kelly v Fairfax Media Limited [2017] ACTSC 322
Uploaded 30 October 2017
DEFAMATION – INTERLOCUTORY INJUNCTION – Injunction sought to prevent publication of alleged defamatory article – defendant not served – consideration of circumstances – application dismissed

TF v Director-General, Community Services Directorate [2017] ACTSC 312
Uploaded 30 October 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal –  Appeal from final care and protection orders made by the Childrens Court.

TF v Director-General, Community Services Directorate (No 2) [2017] ACTCA 49
Uploaded 27 October 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application to strike out an appeal as incompetent – whether the appeal has become otiose.

R v NQ [2017] ACTSC 317; SCC 7 of 2017
Uploaded 27 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – theft

R v Sertori [2017] ACTSC 300; SCC 18 of 2017
Uploaded 27 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – intention of preparing for or planning an offence involving sexual intercourse with a child outside Australia – carriage service to transmit child pornography – no prior convictions – early plea of guilty – serious offence – general deterrence – individual deterrence – intention to carry out offence – good prospects for rehabilitation – Intensive Corrections Order – offender not to access the internet – Forfeiture Order

Koundouris v The Owners – Units Plan No 1917 (No 3) [2017] ACTCA 50
Uploaded 26 October 2017
PROCEDURE – Costs – Judgment and orders – amendment of orders – accidental slip or omission – slip rule.

Scald v Bowyer [2017] ACTSC 309
Uploaded 25 October 2017
BUILDING AND CONSTRUCTION – joint venture for the construction of a residential apartment complex – defendant allegedly made representation that was misleading and deceptive – Fair Trading Act 1992 (ACT) – trade or commerce – whether there was a misrepresentation – adequacy of evidence concerning alleged errors in scope and effects on cost of construction –– reasonable grounds for making the representation – experience in the construction industry – legal onus – whether causal link to loss was shown
NEGLIGENCE–– whether representation was made negligently – alleged lost opportunity – duty to take reasonable care – whether duty was breached LIMITATION OF ACTIONS – commencement of limitation period – prima statute barred – Limitation Act 1985 (ACT) s 33(1) – where alleged deliberate concealment to fact relevant to cause of action – the fact concealed must be a fact which should be pleaded in a Statement of Claim – plaintiff alleged the fact was flawed – whether Limitation Act 1985 (ACT) s 33(3) applied – inconsistency in argument regarding representation
LIMITATION OF ACTIONS – commencement of limitation period – prima statute barred – Limitation Act 1985 (ACT) s 33(1) – where alleged deliberate concealment to fact relevant to cause of action – the fact concealed must be a fact which should be pleaded in a Statement of Claim – plaintiff alleged the fact was flawed – whether Limitation Act 1985 (ACT) s 33(3) applied – inconsistency in argument regarding representation

R v Williams [2017] ACTSC 298 (SCC 190 of 2014; SCC 191 of 2014; SCC 280 of 2016; SCC 281 of 2016; ACTCA 32 of 2015)
Uploaded 24 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – hinder police from lawful investigation – burglary – damaging property – aggravated dangerous driving – using an offensive weapon likely to endanger life to prevent lawful apprehension – culpable driving causing grievous bodily harm – failing to appear in accordance with a bail undertaking – using an unregistered vehicle – using an uninsured vehicle – driving while disqualified – failing to stop a vehicle for police – aggravated dangerous driving – resisting a public official – driving with a prescribed drug in oral fluid – pleas of guilty – convictions for previous offences – consideration of subjective circumstances – application to adjourn the hearing to participate in drug rehabilitation courses – breach of suspended sentence

Koundouris v The Owners – Units Plan No 1917 (No 2) [2017] ACTCA 47
Uploaded 24 October 2017
COSTS – Offer of compromise – distinction between primary proceedings and appeal.

R v Kristiansen [2017] ACTSC 292 (SCC 62 of 2015; SCC 81 of 2015; SCC 110 of 2017; SCC 247 of 2017; SCC 249 of 2017)
Uploaded 24 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary – attempt to take motor vehicle without consent – damage property – significant criminal history – history of drug addiction – alcohol use – good prospects for rehabilitation – degree of remorse – offending and alcohol use whilst on Intensive Correction Order – conviction requires cancellation of Intensive Correction Order – term of imprisonment imposed

Cruz v The Queen; R v Cruz [2017] ACTCA 48
Uploaded 24 October 2017
APPEAL – GENERAL PRINCIPLES – Appeal against conviction – whether verdict is unreasonable or cannot be supported having regard to the evidence – whether error in pre-trial decision not to exclude hearsay evidence under s 137 of the Evidence Act 2011 (ACT)
APPEAL – GENERAL PRINCIPLES – Crown appeal against sentence – whether sentence manifestly inadequate

QA v Chief Psychiatrist of the ACT [2017] ACTSC 306
Uploaded 23 October 2017
ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – Psychiatric Treatment Order – appellant suffering from schizophrenia – suffers from delusions – refuses to take medications – turns on own facts

Wreck Bay Aboriginal Community Council v Williams [2017] ACTCA 46
Uploaded 23 October 2017
ABORIGINAL AND TORRES STRAIT ISLANDERS – ABORIGINAL LAND RIGHTS – special case – statutory interpretation – Aboriginal Land – Jervis Bay Territory – whether the Residential Tenancies Act 1997 (ACT) is capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)

Parkinson v Alexander (No 3) [2017] ACTSC 305
Uploaded 23 October 2017
PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Amendment – error in order – accidental slip or omission – slip rule – r 6906 of the Court Procedures 2006 (ACT)

The Citadel Group Ltd v Alexander [2017] ACTSC 308
Uploaded 20 October 2017
COSTS – discontinuance shortly before hearing – whether proceedings had no reasonable prospect of success or were unreasonably continued – circumstances for indemnity costs not made out

R v Elphick (No 3) [2017] ACTSC 302
Uploaded 20 October 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amendment – accidental slip or omission – power to amend – slip rule – inherent jurisdiction of the Court – reconsideration of an order – r 6906 of the Court Procedures Rules 2006 (ACT)CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – transferral of sentence to another jurisdiction – amendment of a transferred sentence – Ch 12 of the Crimes (Sentence Administration) Act 2005 (ACT)

R v Hidic [2017] ACTSC 307; SCC 247 of 2016
Uploaded 20 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – recklessly inflict grievous bodily harm – one punch attack – team sport – whether and to what extent sentence should include period of full-time imprisonment – nature of intensive correction orders

R v Brown [2017] ACTSC 284 (SCC 260 of 2016; SCC 261 of 2016; SCC 244 of 2017)
Uploaded 19 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – damage property – arson – whether offences premeditated – offence committed out of anger after parole revoked – delay in dealing with offences caused largely by offender absconding to Queensland – some delay caused by authorities – danger created by arson requires general deterrence – punishment may not have useful deterrent effect on offender but deterrent element nevertheless appropriate – family responsibilities not a get-out-of-gaol-free card – offender diagnosed with Intermittent Explosive Disorder and Anti-Social Personality with psychotic traits – no clear plans for offender’s further rehabilitation.

Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No. 2) [2017] ACTSC 303
Uploaded 19 October 2017
TAXATION AND REVENUE – garnishee notices – whether notices issued in respect of non-taxpayer ought be set aside – whether denial of procedural fairness

Law Society of the ACT v Powrie [2017] ACTSCFC 4
Uploaded 19 October 2017
LEGAL PRACTITIONERS – Law Society seeking order that respondent legal practitioner’s name be removed from the roll of people admitted to the legal profession – ACAT concluded practitioner not a fit and proper person to conduct the practice of law – recommendation that practitioner’s name be removed from roll of legal practitioners
STATUTES - Interpretation – whether the Court may make different findings on matters of fact and law based on evidence in the ACAT proceedings and evidence in current proceedings – statutory regime for disciplining legal practitioners – Legal Profession Act 2006 (ACT) s 431(3) – comprehensive regime of appeal from decisions of the ACAT on question of both fact and law – issue estoppel – statutory regime as a whole – would render conferral of authority nugatory – separate from exercise of Court’s inherent jurisdiction to discipline practitioners – whether the legislature intended that the decision of the ACAT as to the necessary findings of fact and their characterisation as professional misconduct would be final – not open to the practitioner to challenge essential findings of ACAT in this case – obligation to independently determine whether name of the practitioner should be removed from the roll – whether the proven conduct of the practitioner demonstrates that they are not a fit and proper person to practise law – marked departure from standard of honesty and candour – order removing name of practitioner from roll appropriate – practitioner to pay Society’s costs of application

Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 3) [2017] ACTSC 301
Uploaded 18 October 2017
CIVIL LAW – PRACTICE AND PROCEDURE – Costs – award of costs – general principles – quantum – quantified damages – consideration of principles – relative success of the parties on the issues raised – prescribed scale of costs applicable to transferred proceedings – rejection of a Calderbank offer – r 1725 of the Court Procedure Rules 2006 (ACT)
STATUTES – INTERPRETATION – Leases (Commercial and Retail) Act 2001 (ACT) – “proceeding” – “in relation to” – “matters” – s 17 of the Leases (Commercial and Retail) Act 2001 (ACT) – s 154 Leases (Commercial and Retail) Act 2001 (ACT)

R v McMahon (No 2) [2017] ACTSC 299 (SCC 70 of 2008)
Uploaded 12 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – burglary – theft – damaging property – possession of stolen property – assault – failing to appear in accordance with a bail undertaking – subjective circumstances – prior deferred Sentence Order to attend residential drug rehabilitation – periods of imprisonment interstate – offender responsible for much of the delay – totality of sentence – stale offences – childhood disadvantage – remorse – general deterrence – specific deterrence – sentenced to a period of imprisonment
STATUTES – LAW REFORM – Transfer of charges – charges bearing a relevant connection – breach of bail – jurisdiction  of the Court to deal with an accused who fails to accord to their bail undertaking – s 90B of the Magistrates Court Act 1930 (ACT)

R v Stevens (No 3) [2017] ACTSC 297 (SCC 69 of 2016)
Uploaded 12 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing –engaging in sexual intercourse without consent – multiple incidents – offender guilty following a trial by jury – lack of remorse – specific deterrence – substantial criminal history albeit no prior sexual offences – sentenced to a period of imprisonment

R v Stevens (No 2) [2017] ACTSC 296
Uploaded 12 October 2017
CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – sexual intercourse without consent – recklessness – non-advertent recklessness – accused state of mind – indifference to complainant consent – going ahead “willy-nilly not even caring whether [a complainant] consented or not”

R v Stevens (No 1) [2017] ACTSC 295
Uploaded 12 October 2017
CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – admissibility of evidence of sexual activities of the complainant – leave to admit evidence of sexual activities of the complainant – proper matters for cross-examination about credit – complainant's description of whether or not the sexual encounter was consensual had varied over time

R v Li [2017] ACTSC 291
Uploaded 12 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – acquittal – no-case submission upheld – jury discharged – offence of trafficking in methylamphetamine – relatively weak circumstantial Crown case – Crown’s evidence raised alternative hypothesis consistent with innocence of accused that could not reasonably be excluded by the jury.

Thompson v The Queen [2017] ACTCA 44
Uploaded 12 October 2017
APPEAL – CRIMINAL LAW – GENERAL PRINCIPLES – appeal against conviction – where witnesses called out of planned order – whether error in giving leave to cross-examine witness under s 38 of the Evidence Act 2011 (ACT) – whether error in giving leave to recall witness under s 46 of the Evidence Act

R v XH [2017] ACTSC 236
Uploaded 11 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of intensive correction order by re-offending – application to cancel intensive correction order – offence carries lowest imprisonment penalty available – possibility of intellectual disability – possibility of inadequate understanding of intensive correction order expectations – whether power to cancel intensive correction order allows for re-sentencing – not in the interests of justice to cancel intensive correction order – intensive correction order amended to include conditions relating to drug rehabilitation.
INTERPRETATION – General Rules of Construction of Instruments – meaning  to be given to “in part” in s 65(2) of the Crime (Sentence Administration) Act 2005 (ACT) – proper approach to statutory interpretation – every word to be given meaning – obligation to interpret provision consistently with purpose of Act and Human Rights Act 2004 (ACT).

Islam v Director General of the Department of Justice and Community Safety Directorate [2017] ACTSC 293
Uploaded 10 October 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 40 – application to set aside originating process – where application ought be made before first return date – where notices of intention to respond have been filed – whether proceedings otherwise disclose no reasonable cause of action – whether proceedings frivolous or vexatious

Stroop v Harris [2017] ACTSC 294
Uploaded 9 October 2017
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against decency and morality – capturing visual data that is an invasion of privacy and indecent – whether photographing clothed genital area of a female in a public area involves an “invasion of privacy” – it does not – s 61B of the Crimes Act 1900 (ACT)

Parkinson v Alexander (No 2) [2017] ACTSC 290
Uploaded 9 October 2017
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – inadmissible evidence in trial at first instance – latent ambiguity in trial at first instance – conviction set aside due to a miscarriage of justice – whether retrial should be held – principles on which retrial ordered – retrial ordered

R v Evans [2017] ACTSC 218 (SCC 61 of 2016; SCC 65 of 2016)
Uploaded 9 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – pleas of guilty.

Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 3) [2017] ACTCA 43
Uploaded 5 October 2017
APPEAL – GENERAL PRINCIPLES – Interlocutory application – fresh evidence – allegation rebutting usual presumption that repayments are first allocated to interest – issue was never in contest at trial – unfair prejudice – exceptional circumstances not demonstrated – application dismissed

R v Coogan [2017] ACTSC 238; SCC 283 of 2016; SCC 24 of 2017
Uploaded 5 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – routine residential burglary – substantial quantity of jewellery stolen – conditional offer to try to recover stolen jewellery – assault and short unlawful confinement in suburban street – repeated phone calls and messages extensive criminal history – long-term drug abuse – completion of rehabilitation program in gaol – low non-parole period to recognise offender’s wish to engage in extended residential rehabilitation after release.

R v West (No 2) [2017] ACTSC 254; SCC 179 of 2015
Uploaded 4 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – failure to maintain contact with supervisors – unsuccessful attempt to arrange supervision to be transferred – complex combination of socio-economic problems rather than criminogenic factors – not appropriate to return offender to custody because of socio-economic problems.

In the estate of SAS [2017] ACTSC 298
Uploaded 4 October 2017
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Wills – formalities of – document not executed in accordance with requirements of Wills Act 1968 (ACT) – electronic signature – not witnessed – s 11A of the Wills Act 1968 (ACT)

R v SM [2017] ACTSC 288; SCC 146 of 2016
Uploaded 4 October 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – seven counts of committing an act of indecency upon a person aged between 12 and 13 years old – jury returned verdicts of guilty – relationship of step grandfather and step granddaughter – breach of trust – aged between 12 and 13 years old – first two counts were moderate or less serious – remaining five counts very serious acts – no planning – victim impact statement – Pre-Sentence Report – medical report – troubled upbringing – injuries – no suggestion of contrition or remorse – prospects for rehabilitation no worse than average – gravity of offending – denouncing conduct – recognising harm – totality – sentences of imprisonment imposed

R v Nchucki [2017] ACTSC 287
Uploaded 4 October 2017
CRIMINAL LAW –– STAY OF PROCEEDINGS –– application for stay – abuse of process – human rights – prosecutorial discretion – no relevant unfairness
DRUG OFFENCES – Judge-Alone Trial – Supply – Onus of Proof – legal burden of proving that accused did not have possession of the controlled drug with intention of selling – whether articles matched statutory description – search warrants – admissions of fact – accused’s drug use – value of drugs – security concerns –other items found to reasonably be regarded as supporting inference – evidence of the accused – must not speculate about what evidence a person may or may not have given if called by the accused to give evidence – may be many reasons for the telling of a lie apart from the realisation of guilt – accused has not discharged burden of proving he had the drugs in his possession other than with the intention of selling – hand-held electronic devices – convicted on four counts to which the accused pleaded not guilty – convicted on count to which accused pleaded guilty

R v Bui [2017] ACTSC 262; SCC 234 of 2016; SCC 235 of 2016
Uploaded 29 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in trafficable quantity of cannabis – proceeds of crime– good behaviour order – offender’s role as courier at low level in trafficking hierarchy – offender’s wish to send money overseas to help sick relatives – arrival in Australia as refugee – evidence of offender’s regret, remorse and shame from references – no obvious rehabilitation needs.

R v Scott; R v DM [2017] ACTSC 286; SCC 51 of 2017; SCC 90 of 2017;SCC 91 of 2017
Uploaded 29 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtain property by deception – young offenders – no prior criminal history.

Law Society of the Australian Capital Territory v Elmaraazey [2017] ACTSCFC 2
Uploaded 29 September 2017
LEGAL PRACTITIONERS – DISCIPLINE – Removal of a Practitioner’s Name from the Local Roll – withdrawal from trust account in excess of costs that had been billed – payment of cheque from trust money without authority – transfer of trust money to office account without authority – withdrawal of money for costs without notice or an invoice – borrowing money from a client in breach of r 10.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) – failure to release documents to client following termination of a retainer in breach of r 6.2 of the Legal Profession (Solicitors) Rules 2007 – failure to issue a trust account statement in breach of s 57 of the Legal Profession Regulation 2007 (ACT) – failure to deposit trust money into trust account in breach of s 222 of the Legal Profession Act 2006 (ACT) ¬– failure to hold trust money exclusively for the person on whose behalf it was received and dispersing trust money contrary to the direction given by the client in breach of s 223 of the Legal Profession Act 2006 – failure to account for trust money, failure to issue a receipt for trust monies received and failure to issue trust account statements in breach of s 230 of the Legal Profession Act 2006 – withdrawing trust money for payment of legal costs for which no tax invoice had been issued and no authority given to withdraw the money in breach of s 62 of the Legal Profession Regulation 2007 – failure to issue receipts for cash payments in breach of s 38 of the Legal Profession Regulation 2007

R v CT [2017] ACTSC 43
Uploaded 27 September
EVIDENCE – Tendency evidence – where tendency incidents involve charged acts involving same complainant as well as charged acts involving his brother – where credibility or reliability of complainant is in issue

Cavuoto v Reis [2017] ACTSC 235
Uploaded 27 September 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal from Magistrates Court – appeal allowed – Magistrate confused about sentencing options available to him – Magistrate misconstrued comments in R v Hampson to find that custodial sentence was required – correct reading of R v Hampson is that custodial sentence is not excluded.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sentencing discretion re-exercised – appellant’s actions caused serious distress and fear to the victim – appellant’s previous good character entitles him to some leniency – no sentence other than imprisonment appropriate but no need for immediate full time custody.

R v Lou (No 2) [2017] ACTSC 266 (SCC 68 of 2016; SCC 70 of 2016)
Uploaded 27 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – money laundering – traffic in a controlled drug other than cannabis – plea of guilty.

Pacific Building Services Pty Ltd & Anor v Lau & Ors (No. 2) [2017] ACTSC 279
Uploaded 26 September 2017
COSTS – Calderbank letter – where offer not a genuine compromise and allowed insufficient time to respond – reasonableness of a party’s conduct

Elmgrove Holdings Pty Limited v Sellick Consultants 2009 Pty Limited [2017] ACTSC 282
Uploaded 22 September 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 1147 – application for summary judgment – where threshold for summary judgment not met – applications dismissed

Piscioneri v Malcolmson [2017] ACTSC 278
Uploaded 22 September 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 1147 – Limitation Act (1985) s 21B – application for summary judgment – whether limitation period prevents claim from being pursued – summary judgment entered for defendant

In the Estate of Rummer [2017] ACTSC 277
Uploaded 22 September 2017
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – RECTIFICATION – construction and effect of testamentary disposition – whether gifts of amounts as directed to executor fail for uncertainty – whether rectification of will should be made so as to give effect to testator’s probable intention

Kelly v The Queen [2017] ACTCA 42
Uploaded 22 September 2017
APPEAL – CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against convictions – particular offences – committing an act of indecency on or in the presence of a young person under the age of 16 years – judge should not have allowed images of child pornography to be put to the jury – convictions unsafe and unsound – appeal dismissed
CRIMINAL LAW – EVDIENCE – Evidentiary matters relating to witness and accused persons – tendency evidence – sexual offences – attraction to young girls – relationship evidence – photographic evidence – probative value is outweighed by unfair prejudice
CRIMINAL LAW – EVDIENCE – Evidentiary matters relating to witness and accused persons – witness interviews – transcripts and statements – phone recordings between the accused and his daughters
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – appeal against conviction – unsafe and unsatisfactory verdict – ground not made out – appeal dismissed

R v Vaughan [2017] ACTSC 270; SCC 216 of 2016
Uploaded 21 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – co-offender – replica shotgun – co-offender expressed willingness to give evidence at trial – plea of guilty – significant criminal history – drug addiction – proposition that counsel acting for an accused person cannot take instructions and provide advice without having seen the Crown brief rejected – degree of remorse – reduction for plea of guilty – prospects for rehabilitation guarded – capable of rehabilitation if address drug abuse and make necessary changes – culpability somewhat higher than co-offender – general and specific deterrence – serious offence – term of imprisonment imposed

R v Brogden [2017] ACTSC 276
Uploaded 21 September 2017
EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – application for exclusion of recorded statement by complainant – alleged failure to comply with the requirement that the recorded statement be conducted ‘as soon as practicable after the event’ – taking of evidence in sexual, violent and family violence proceedings – hearsay – audiovisual recording – requirements under Evidence (Miscellaneous Provisions) Act 1991 (ACT)
INTERPRETATION – General Rules of Construction of Instruments – offences may fall within definition of family violence and violent or sexual offence – differences in regimes under legislation – no manifest inconsistency between the provisions – complainant not obligated to participate in recorded statement – alternative pathways to admissibility – legislative objective – process of giving evidence easier for the complainant – fresh in complainant’s memory – obligation to make the recorded statement as soon as practicable is one which statute casts upon the police – recorded statement made as soon as practicable – applicant’s lawyer had reasonable opportunity to listen to or view recorded statement – in the interests of justice to admit the recorded statement  – application was refused

St Hilliers Property Pty Ltd v ACT Projects Pty Ltd and Anor (No 2) [2017] ACTSC 263
Uploaded 20 September 2017
PROCEDURE – COSTS – Apportionment – whether “special circumstances” exist for costs to be apportioned between unsuccessful parties – whether there has been an unreasonable pursuit of points which have no merit

Forge v Rewers (No 2) [2017] ACTSC 273
Uploaded 20 September 2017
CIVIL LAW – PRACTICE AND PROCEDURE – Costs – offers of compromise – whether offer open for “a period that is reasonable in the circumstances” – whether Court should “order otherwise” so as to displace default costs consequences under rule 1010 of the Court Procedures Rules 2006 (ACT)

R v Horton-Hegarty [2017] ACTSC 268; SCC 15 of 2017
Uploaded 18 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person under the age of sixteen – using a child for the production of child exploitation material – no prior criminal record.

In the Estate of Elaine Lilian Mitchell-Reynolds [2017] ACTSC 269
Uploaded 18 September 2017
WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT), s 11A

R v Graham [2017] ACTSC 267
Uploaded 15 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – hindering a public official – common assault – failure to wear a helmet – failure to stop vehicle when requested by police – failure to stop vehicle when signalled by police – driving on a path – riding a motor vehicle without consent – unlicensed rider – failure to stop after an accident causing injury – aggravated dangerous driving
CRIMINAL LAW – DRIVING OFFENCES – Offences Relating to the Administration of Justice – whether accused was person seen by police to be riding motorcycle –– meaning of the word “likely” in s 27(3)(c) of the Crimes Act 1900 (ACT) – whether riding a motorcycle at a person likely to endanger human life or cause grievous bodily harm – whether the activation of police lights and sirens a “request or signal” to stop a vehicle – meaning of the word “knowingly” in s 16 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT)

Quach v RU (No 3) [2017] ACTSC 258
Uploaded 14 September 2017
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – application under Domestic Violence and Protection Orders Act 2008 (ACT) taken to have been made under Personal Violence Act 2016 (ACT) – whether publication of parties’ names is in the public interest – substantial volume of litigation instituted by appellant in ACT and NSW courts – public interest in other courts being able to identify litigation involving appellant – no basis for protecting identity of public authority criticised in earlier judgment – respondent to appellant’s protection order application involved only as employee of public authority performing her functions as such – identity to be protected.

Quach v RU (No 2) [2017] ACTSC 234
Uploaded 14 September 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal from Magistrate’s decision striking out application for personal protection order as disclosing no reasonable cause of action – appellant’s registration as medical practitioner cancelled in NSW – costs orders made in favour of NSW Health Care Complaints Commission – communications from employee of NSW Health Care Complaints Commission seeking to enforce costs orders – Magistrate found communications did not constitute personal violence – no error in Magistrate’s decision to strike out appellant’s application.

Quach v RU (No 1) [2017] ACTSC 233
Uploaded 14 September 2017
PROCEDURE – Contempt, attachment and sequestration –failure to comply with subpoena issued in ACT and served in NSW – application for subpoena recipient to be dealt with for contempt – initial reliance on statutory immunity to justify failure to comply – late application by recipient for subpoena to be set aside – subpoena not effectively served under Service and Execution of Process Act 1992 (Cth) – no contempt found – application for subpoena to be set aside withdrawn – recipient’s initial approach to subpoena delayed resolution of issues – successful recipient to receive only half its costs of applications.

R v Catania [2017] ACTSC 264 (SCC 63 of 2017; SCC 64 of 2017)
Uploaded 14 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – burglary – common assault – theft – minor theft – damaging property – driving without a licence – possession of a prohibited substance namely cannabis – sentenced to a period of imprisonment

R v Taylor [2017] ACTSC 257 (SCC 168 of 2016; SCC 169 of 2016)
Uploaded 14 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – knife – vulnerable victim – gross overreaction to situation – intoxication – alcohol abuse – Pre-Sentence Report – no placement available in rehabilitation – plea of guilty – 12 months imprisonment – balance suspended – Good Behaviour Order imposed

Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited (No 2) [2017] ACTCA 40
Uploaded 13 September 2017
COSTS – costs on appeal – appeal dismissed - Calderbank offers pre-trial – Calderbank offers rejected by plaintiff – solicitor/client costs ordered at first instance from date offer was rejected – Calderbank offers not renewed on appeal – whether solicitor/client order appropriate on appeal – whether pre-trial Calderbank offer continues to have cost consequences on appeal – no application to strike out grounds of appeal – no objection to competency – award of costs at discretion of Court – costs ordered on party/party basis

R v ETU [2017] ACTSC 259
Uploaded 11 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – Juries – application to discharge the jury – inadvertent disclosure of the accused’s history.

R v Stott [2017] ACTSC 248 (SCC 206 of 2016; SCC 207 of 2016; SCC 127 of 2017)
Uploaded 11 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive by shooting – arson to destroy vehicle used to commit shooting – conspiracy to traffic controlled drugs into Alexander Maconochie Centre – recent prevalence of drive-by shootings – need to send message to other potential offenders – no offending since mid-2015 – no evidence of drug use since mid 2015 – drug rehabilitation program completed in pre-sentence custody – good prospects of rehabilitation – low non-parole period set in recognition of offender’s youth and demonstrated commitment to rehabilitation.

R v Schrattenholz [2017] ACTSC 247 (SCC 236 of 2016)
Uploaded 7 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – assault occasioning actual bodily harm – subjective circumstances – aggravating features of the offence – prospects of rehabilitation – risk of recidivism – specific deterrence – sentence partially suspended

R v Dunn [2017] ACTSC 227 (SCC 144 of 2017)
Uploaded 6 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – mid range of objective seriousness – single punch – significant and long-lasting impact on victim – offender voluntarily intoxicated – offence committed in the presence of a police officer – guilty plea – male offender 25 years old – offender had previously committed violent offences associated with the consumption of alcohol – specific deterrence – general deterrence – denunciation.

R v Boardman [2017] ACTSC 228; SCC 141 of 2016; SCC 58 of 2013; SCC 115 of 2010; SCC 286 of 2007
Uploaded 5 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – breach of Good Behaviour Order – reckless – serious offence – mental illness – illicit drugs – criminal history – offer to give evidence – mental illness played causative role – plea of guilty – reasonable prospects of rehabilitation – re-sentenced – terms of imprisonment – sentences suspended – Good Behaviour Order imposed

R v Brymer [2017] ACTSC 243; SCC 74 of 2016
Uploaded 5 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order by re-offending – drive while disqualified – offender re-sentenced.

CN v Beck [2017] ACTSC 250
Uploaded 5 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – appeal against sentence  – whether sentence manifestly harsh and excessive – breach of good behaviour order – re-sentenced in Childrens Court to partially suspended sentence – offence objectively serious – non-compliance with good behaviour order obligations – appeal dismissed

SV v The Queen [2017] ACTCA 41
Uploaded 5 September 2017
APPEAL AND NEW TRIAL – appeal from Supreme Court – jury trial – sexual intercourse without consent – act of indecency.
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – initially unrepresented appellant – appeal against severity of sentence – application to amend notice of appeal to add appeal against conviction. APPEAL AND NEW TRIAL – NEW TRIAL-IN GENERAL AND PARTICULAR GROUNDS – Particular Grounds – asserted discrepancy between forensic evidence and complainant’s evidence – difference between evidence of absence and absence of evidence – failure to call three-year-old child as witness – difference between competence and credibility – competence generally not to be tested before jury – no risk of miscarriage of justice identified.

R v Burgess [2017] ACTSC 249 (SCC 231 of 2016; SCC 232 of 2016)
Uploaded 4 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – violent offences – recklessly inflict grievous bodily harm – property damage – breach of good behaviour order – offender’s substance abuse – offender’s desire to rehabilitate – criminal history for matters of violence – co-offenders – parity in sentencing

R v Al Abbasi [2017] ACTSC 239 (SCC 162 of 2016; SCC 292 of 2016; SCC 293A of 2016; SCC 293B of 2016)
Uploaded 4 September 2017 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery and sexual offences against sex workers – sexual assault in the third degree – sexual intercourse without consent in company – attempted sexual intercourse without consent in company – sexual assault in the third degree – sexual intercourse without consent – attempted aggravated robbery – aggravated robbery – guilty plea – males 22 years old and 32 years old – offending conduct involved degree of planning

Butler & Ors v Daood & Ors [2017] ACTSC 253
Uploaded 4 September 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 75 and 76 – application for reinstatement of application taken to have been dismissed – personal injury claim – interests of justice – substantial delay – actual prejudice suffered by a defendant – appeal dismissed

R v Alabbasi [2017] ACTSC 231 (SCC 237 of 2016)
Uploaded 4 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by jury – two counts – threat to inflict actual bodily harm with intent to engage in sexual intercourse – engage in sexual intercourse without consent – at time of offences no criminal record – expressed remorse – no plea of guilty – illicit drugs – reasonable prospects for rehabilitation – terms of full-time imprisonment imposed

R v King [2017] ACTSC 252 (SCC 47 of 2017; SCC 48 of 2017; SCC 133 of 2017)
Uploaded 4 September 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – plea of guilty – lower range of offences of this nature – obtain property by deception – plea of guilty – extensive criminal history – subjective features – Aboriginal woman – childhood characterised by neglect and abuse – drug addiction problems – extended family and community support – caring for child –  expressed remorse – reasonable prosects of rehabilitation –  assistance to authorities – sentences of imprisonment imposed – balance suspended – Good Behaviour Order imposed

Law Society of the ACT v Stubbs [2017] ACTSCFC 3
Uploaded 1 September 2017
PROFESSIONS AND TRADES –LAWYERS – Complaints and discipline – application to remove practitioner from the roll of practitioners following ACAT recommendation – professional misconduct – unsatisfactory professional conduct – false representations to Law Society – acting contrary to client instructions – misleading the Court – whether defendant is a fit and proper person

Boxx v Peden [2017] ACTCA 39
Uploaded 1 September 2017
APPEAL – APPEAL FROM THE SUPREME COURT – Costs order – statutory basis for costs order – costs order made against the Director of Public Prosecutions – person entitled to be enrolled for an electorate was not enrolled on any roll – offences under the Electoral Act 1992 (ACT).
PROCEDURE – COSTS – Power of Supreme Court to make costs order in favour of successful appellant against conviction recorded in Magistrates Court – provision conferring power on court hearing appeal to “make any other order that it considers appropriate” – where other powers conferred on court are to deal with the appeal before it – no explicit conferral of power to make costs orders in favour of successful appellant in criminal appeal to Supreme Court.
PROCEDURE – COSTS – Definitions in Court Procedures Rules 2006 (ACT) – “appellate proceeding” – “civil proceeding” – “criminal proceeding” – whether a criminal appeal is a civil proceeding.
STATUTES –ACTS OF PARLIAMENT – Interpretation – applying “counterintuitive judicial gloss” undesirable – convoluted process of interpretation – impact on community access to meaning of legislation affecting fundamental rights and obligations of community members.

R Developments Pty Ltd v Forth [2017] ACTCA 38
Uploaded 31 August 2017
APPEAL – APPEAL FROM SUPREME COURT – primary Judge dismissed claim for damages for breach of contract – builder not entitled to terminate contract for failure of owner to comply with contractual requirement to supply evidence of capacity to pay – appeal that primary Judge erred in his decision – appeal dismissed
CONTRACT – INTERPRETATION –  standard form building contract – the effect and nature of contractual clauses – principles of contractual interpretation – owners’ obligation to supply evidence of capacity to pay ended once builder commenced works – obligations waived by builder – no evidence that builder had demanded owner provide information pursuant to further contractual clause – notice did not adequately identify alleged breach – further clause not invoked

R v Crawford (No 3) [2017] ACTSC 99 (SCC 27 of 2016; SCC 83 of 2016; SCC 153 of 2016)
Uploaded 30 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – burglary – aggravated burglary – robbery – ride in a motor vehicle without consent – damage property – pleas of guilty and guilty verdict.

R v Stacker [2017] ACTSC 240 (SCC 46A of 2016; SCC 46B of 2016)
Uploaded 29 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – aggravated robbery – dishonestly ride in a motor vehicle belonging to someone else – relevant criminal history.

R v Ndlovu [2017] ACTSC 244 (SCC 223 of 2015; SCC 224 of 2015; SCC 240 of 2016; SCC 241 of 2016)
Uploaded 28 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unauthorised possession of a firearm – Unlawful confinement – Going equipped with an offensive weapon – Trafficking in a trafficable quantity of cannabis – Pleas of guilty – Parity in sentencing – Substance abuse

Piscioneri v Reardon (No 2) [2017] ACTSC 242
Uploaded 28 August 2017
PRACTICE AND PROCEDURE – DISCOVERY – Preliminary discovery – application for order that witness be orally examined as to the identity of persons posting online under pseudonyms – pre-conditions for an examination made out – s 650 of the Court Procedure Rules 2006 (ACT)
PRACTICE AND PROCEDURE – COSTS – Award of costs – manner in which a preliminary discovery application is defended is relevant to costs – costs are at the discretion of the Court – plaintiff to pay the costs for the examination of the witness

ACT Director of Public Prosecutions v King [2017] ACTSC 241
Uploaded 25 August 2017
CRIMINAL LAW – CONFISCATION OF CRIMINAL PROCEEDS – restraint and sale of an interest in a Crown Lease – whether a mortgagee of lessee’s interest in a Crown lease an interested party under s 252 of the Confiscation of Criminal Assets Act 2003 (ACT)

Pacific Building Services Pty Ltd & Anor v Lau & Ors [2017] ACTSC 245
Uploaded 25 August 2017
CAVEATS – Land Titles Act 1925 (ACT) s 107joint tenants – only one possibly grants equitable interest to creditor – creditor caveats whole of property – caveat impermissible

R v Bowman [2017] ACTSC 208; SCC 205 of 2016
Uploaded 24 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – excessive defence – limited criminal history – remorse expressed – willingness to participate in restorative justice – victim declined – good prospects for rehabilitation – conviction recorded – Good Behaviour Order imposed.

Piscioneri v Brisciani & Reardon [2017] ACTSC 237
Uploaded 23 August 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) rr 631,  632, 1118, 1452 – application to strike out defences for delay or default – application for summary judgment or summary dismissal – application for further and better particulars – interrogatories – where any default had been remedied – whether limitation period prevents claim from being pursued – where threshold for summary judgment met – where defences had been filed so as to make further compliance with request for particulars unnecessary – applications dismissed

Koundouris v The Owners – Units Plan No 1917 [2017] ACTCA 36
Uploaded 22 August 2017
BUILDING CONTRACTS – residential building works – failure by builder to construct building to adequate standard – breach of statutory warranties – application of limitation periods – the extent to which subsequent owners succeed to rights for breach of warranties – whether builder required to be a party to contract for sale for owners to succeed to statutory warranties – claim for damages by owners corporation.
STATUTORY INTERPRETATION – purpose, scope and object of statutory provisions read in context of legislation as a whole take precedence over inconsistent interpretation in Explanatory Statement – unreasonable consequences of an interpretation particular to facts not an appropriate guide to interpretation.

CX v The Queen [2017] ACTCA 37
Uploaded 22 August 2017
APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – sexual offences  – historical offences – sexual intercourse with young person – acts of indecency with young person – whether primary judge required to take into account the remissions available to prisoners at the time that the offences occurred – offender’s life expectancy as a mitigating factor under sentence – offender’s ill-health as a mitigating factor under sentence

Impedovo v Nolan (No 3) [2017] ACTSC 232
Uploaded 21 August 2017
PROCEDURE – ENFORCEMENT OF ORDERS – Seizure and sale – money order – judgment of a Magistrates Court in another jurisdiction registered in the Supreme Court – service of the enforcement order – in chambers orders – Application in Proceedings was entitled between enforcement officer and the enforcement debtor
REAL PROPERTY – SEIZURE AND SALE OF LAND – Failure to pay judgment debt justified a sale of real property – sale must be at a fair and reasonable price – r 2219 of the Court Procedure Rules 2006 (ACT)

Atarashii Stone Pty Ltd v Granite Transformations Pty Ltd (No 3) [2017] ACTSC 198
Uploaded 18 August 2017
PRACTICE AND PROCEDURE – COSTS – Security for Costs ¬– Court Procedures Rules 2006 (ACT) ¬r 1902 – whether the plaintiff's lack of financial resources is attributable to the defendant's conduct – whether the plaintiff is effectively in the position of a defendant

R v Charles [2017] ACTCA 35
Uploaded 18 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCDEURE – Appeal from Supreme Court – Crown appeal –  interpretation of s 56A of the Bail Act 1992 (ACT)

Atarashii Stone Pty Ltd v Granite Transformations Pty Ltd (No 4) [2017] ACTSC 230
Uploaded 18 August 2017
PRACTICE AND PROCEDURE – APPLICATION TO ENFORCE ORDER REQUIRING PRODUCTION OF DOCUMENTS – Whether categories of documents should be required to be produced – duties of solicitors in relation to production of documents
COSTS – NON-COMPLIANCE BY PARTY REQUIRED TO PRODUCE DOCUMENTS – Failure to take appropriate steps to set aside or comply with notice to produce – limited objections to production made out of hearing – defaulting party ordered to pay costs notwithstanding success of objections to production

R v Waters [2017] ACTSC 226; SCC 87 of 2017
Uploaded 18 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old or a person believed to be under the age of 16 years old – plea of guilty – lower end of scale of offences – psychologist report – reasonable prospects of rehabilitation – Good Behaviour Order with supervision imposed.

Deputy Commissioner of Taxation v Caudle; Commonwealth of Australia v Caudle [2017] ACTSC 216
Uploaded 17 August 2017
Income tax (Cth) – Collection – Tax payable by employees collected by employer company – Where company failed to remit deducted tax – Director’s liability for penalties upon failure to comply – Whether penalty notices served – Where company entered into agreement to pay outstanding tax liability – Where director and his wife separately guaranteed company’s debts –Guarantee called upon following company’s default.

R v Colefax [2017] ACTSC 214; SCC 86 of 2014; SCC 87 of 2014
Uploaded 17 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour undertaking constituted by relatively minor offending late in period of undertaking – other indications of rehabilitation progress – term of good behaviour order extended for further 12 months.

R v Booth [2017] ACTSC 191; SCC 184 of 2016
Uploaded 17 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – drive/ride motor vehicle without consent – theft – no evidence offered on transferred charge – co-offender serving sentence by way of intensive correction order – intensive correction orders may involve substantial custodial time – need to consider parity by comparing terms of imprisonment imposed.

Yeats v Winters [2017] ACTSC 224
Uploaded 16 August 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Crown appeal against sentence – whether the sentence imposed by the learned magistrate was manifestly inadequate.

R v Jacka [2017] ACTSC 225; SCC 111 of 2017
Uploaded 16 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – pleas of guilty.

Keir v Croatto [2017] ACTSC 222
Uploaded 16 August 2017
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – statutory interpretation – failure to reach state of satisfaction required by statutory provision for making of order preventing the acquisition or keeping of dog – insufficient evidence before the magistrate to make the order made – s 101 of the Animal Welfare Act 1992 (ACT)
ANIMALS – CRUELTY – Neglecting an animal in a way that caused it pain – failure to take reasonable steps to alleviate any pain suffered by an animal

Hinchcliffe v Carter’s Transport Australia Pty Ltd & Ors [2017] ACTSC 223
Uploaded 15 August 2017
PRACTICE AND PROCEDURE – PERSONAL INJURY PROCEEDINGS – Application for leave to serve experts report after date permitted by prior directions – desire to avoid incurring costs – need for full explanation of reasons for late service of report – leave refused

Hassan v Calvary Private Health Care Canberra Limited [2017] ACTSC 219
Uploaded 15 August 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT), rr 75 and 76 – application for reinstatement of application taken to have been dismissed – personal injury claim – interests of justice – action reinstated – subpoenas – relevance

R v Cowley [2017] ACTSC 213; SCC 85 of 2017; SCC 86 of 2017
Uploaded 14 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentencing – using a carriage service to transmit indecent communications to a person under the age of 16 years – Facebook messages – offender 35 years old at time of offending – 12 year old victim – offender related to victim – victim a real person under the age of 16 – offending not highest level of indecency – offending took place over a limited number of days – no admissions to police – early plea of guilty – delay in prosecution – offender otherwise of good character – offender diagnosed with adjustment disorder and depressed mood, suffering from depression, anxiety and issues with self-esteem during the period leading up to the offending conduct – good rehabilitation prospects – offender sought psychological help on own initiative and implemented measures to reduce the risk of a further depressive episode – general deterrence – Good Behaviour Order with a Community Service work condition

R v Myles [2017] ACTSC 194; SCC 65 of 2017
Uploaded 14 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – recklessly inflict grievous bodily harm – guilty plea – one punch attack – offender intoxicated – no relevant criminal history –  good prospect of rehabilitation – whether sentence to be served by intensive corrections order or full-time imprisonment – intensive corrections order with community service

R v Chifuntwe (No 3) [2017] ACTSC 220; SCC 227 of 2016; SCC 228 of 2016; SCC 229 of 2016; SCC 230 of 2016
Uploaded 14 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – failure to stop motor vehicle – drive a motor vehicle without consent – resist a public official in the exercise of his functions as a public official – drive while disqualified – possess prohibited substance, namely cannabis – drive with prescribed drug in oral fluid – pleas of guilty – guilty verdict.

R v Savanhu [2017] ACTSC 217; SCC 63 of 2016
Uploaded 14 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – position of trust – probable effect of sentence on offender’s family – pleas of guilty.

Geddes v Taleni (No 2) [2017] ACTSC 215
Uploaded 14 August 2017
TORTS – NEGLIGENCE – Costs – Offer of compromise.

R v Woutersz [2017] ACTSC 212
Uploaded 11 August 2017
EVIDENCE – Admissibility and Relevance – Witnesses – expert witness in Canada and unwilling to return to Australia to give evidence – whether evidence could be taken by audiovisual link from Canada – consideration of factors affecting taking of audio or audiovisual evidence from foreign countries – many factors not relevant, or not problematic – source of power to receive  evidence by audiovisual link from foreign country – legislative reform desirable.

LE v SX [2017] ACTCA 34
Uploaded 10 August 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal against an interlocutory decision – procedural fairness – entitlement to be present.

R v SI [2017] ACTSC 211: SCC 131 of 2017
Uploaded 9 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young person – attempted aggravated robbery – plea of guilty – criminal record.

R v UD [2017] ACTSC 210 : SCC 132 of 2017: SCC 156 of 2017
Uploaded 9 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young person – aggravated robbery – attempted aggravated robbery –ride in a motor vehicle without consent – pleas of guilty.

R v LC [2017] ACTSC 209 : SCC 89 of 2017
Uploaded 9 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the presence of a child under ten years of age – guilty plea – no criminal history.

Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd (No 2) [2017] ACTCA 33
Uploaded 9 August 2017
APPEAL – PRACTICE AND PROCEDURE – Re-opening of the appeal – seeking to adduce evidence not before the Court on appeal – Metwally discretion – Anshun estoppel – res judicata – exercise of the Court’s discretion – appeal re-opened to receive further evidence – matter referred to the three judges who constituted the Court of Appeal for the hearing of the application

McCurley v Beath [2017] ACTSC 196
Uploaded 9 August 2017
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – multiple periods of disqualification under road transport legislation totalling 16.5 years – no order making periods concurrent – disqualification until further order –  sentence manifestly excessive
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – competency of appeal – magistrate made orders disqualifying driver from holding licence for periods identical to periods automatically imposed by the legislation – appeal competent because of the orders made by the Court
STATUTES – INTERPRETATION – Road transport legislation – relationship between licence disqualification provisions in ss 63(4) and 69 of the Road Transport (General) Act 1999 (ACT) and s 32(7) of the Road Transport (Driver Licensing) Act 1999 (ACT) – how provisions relating to existing disqualifications apply where multiple convictions recorded on a single day – circumstances in which the Court may order disqualifications take effect concurrently

R v McInnes [2017] ACTSC 207; SCC 101 of 2017; SCC 102 of 2017
Uploaded 7 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – obtain property by deception – minor theft.

R v Campbell [2017] ACTSC 204; SCC 218 of 2016; SCC 219 of 2016; SCC 220 of 2016
Uploaded 7 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – damage property – guilty pleas

R v NC [2017] ACTSC 206; SCC 221 of 2016
Uploaded 7 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency without consent.

R v Parlov [2017] ACTSC 205; SCC 167 of 2016
Uploaded 4 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property damage offence – arson – in company – principal offender – committed for financial gain – extensive criminal history – non-compliance with supervision and custodial requirements – offender relatively young – rehabilitation

Parkinson v Alexander [2017] ACTSC 201
Uploaded 4 August 2017
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – tendency evidence – trial directions – reverse Liberato – Crown’s oral submissions inconsistent with written submissions at first instance – latent ambiguity – miscarriage of justice – appeal upheld in part
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – accused convicted but not yet sentenced – making a false allegation – public mischief
EVIDENCE – TENDENCY EVIDENCE – False allegations of criminal conduct against people – providing police with false, misleading or inaccurate information – tendency not formulated as per notice – no opportunity for accused to challenge the evidence – evidence inadmissible

WR Engineering Pty Ltd ATF WR Engineering Trust v Jancevski [2017] ACTSC 202
Uploaded 4 August 2017
TORTS – NEGLIGENCE - Personal injury – Appeal from Magistrates Court – Cross-appeal - employee or contractor – duty of care – liability – duty of care not breached - appeal upheld.

R v Dugdale [2017] ACTSC 203; SCC 115 of 2017; SCC 116 of 2017
Uploaded 4 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – damage property over $1,000 in value – obtain property by deception – ride or drive motor vehicle without consent – take motor vehicle without authority – theft – pleas of guilty.

R v KX [2017] ACTSC 199; SCC 50 of 2001
Uploaded 3 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order.

R v Forrest (No 4) [2017] ACTSC 200
Uploaded 3 August 2017
PRACTICE AND PROCEDURE - JUDGMENTS AND ORDERS - Orders of the Court - complex sentencing procedure - multiple charges - global sentencing - general sentences - no error in Court order - amendment to the reasons of the Court

Canberra Cleaners Pty Limited & ors v Commissioner for ACT Revenue [2017] ACTSC 197
Uploaded 1 August 2017
PRACTICE AND PROCEDURE –  Subpoenas  – Application to set aside a  subpoena – whether documents sought to be produced are relevant – no point of principle

R v Booth [2017] ACTSC 195
Uploaded 1 August 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Back-up and Related Offences Transferred to the Supreme Court – whether it is appropriate in circumstances of late particularisation of a back-up charge to remit the proceedings to the Magistrates Court, grant an adjournment or deal with the matter to finality – turns on own facts
CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – joint commission common assault – whether there was a non-verbal understanding that the defendant and another person would assault a person who had supplied drugs to them in order to get some or all of their money back

Miller v Tighe [2017] ACTSC 185
Uploaded 31 July 2017
CRIMINAL LAW – APPEAL – Powers of Courts and Judges – jurisdiction to impose driver-licence conditions – whether a Magistrate has the power to make an order partially suspending an offender's licence for a conviction under s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – whether s 18(5) of the Crimes (Sentencing) Act 2005 (ACT) allows for the making of ancillary orders imposing driver licence conditions

NC v The Queen [2017] ACTCA 31
Uploaded 31 July 2017
APPEAL – CRIMINAL LAW – appeal against sentence – armed robbery – riding in vehicle without authority – breach of good behaviour recognizance and resentence for suspended sentence – totality principle – whether sentence manifestly excessive

R v Eliadis [2017] ACTSC 193; SCC 170 of 2016; SCC 187 of 2016
Uploaded 28 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – ACT and federal offences – arson – in company – joint participant in criminal enterprise – offender coordinated offence and provided support and payment – banking offences – plea of guilty –scheme to defraud Australian banks – principal in Greece – offender executed Australian part of scheme – participant in criminal group with foreign nationals – Australian bank accounts overdrawn – loss not recovered – ACT and federal sentencing

R v John (No 2) [2017] ACTSC 186; SCC 17 of 2016
Uploaded 28 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – damaging property – theft – burglary – assessed as unsuitable for an Intensive Corrections Order – consideration of subjective circumstances – general deterrence – sentenced to a period of imprisonment – sentence to be suspended after nine months

Ferguson v Smorhun [2017] ACTSC 192
Uploaded 28 July 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against conviction and sentence for drug-driving offence – appellant sentenced on plea of guilty – new claims about explanation for offence – no evidence offered for claim that cannabis and methylamphetamine baked into birthday cake by appellant’s family without appellant’s knowledge – conviction appeal dismissed – whether sentence is manifestly excessive – sentence was most lenient sentence available except for non-conviction order – evidence admitted on appeal of appellant’s background and contribution to the community – sentence not manifestly excessive.
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal and consequent stay of disqualification order not notified by Court Registry to Road Transport Authority or ACT police – appellant charged with driving while disqualified while appeal on foot – appellant claimed not to have driven during most of period while appeal on foot – no scope for backdating disqualification period – remaining term of disqualification period specified having regard to period served before appeal filed.

The Queen v Lee [2017] ACTCA 30
Uploaded 28 July 2017
APPEAL – CRIMINAL LAW – Crown appeal against sentence – murder – theft – whether sentencing Judge made specific error – whether sentences manifestly inadequate – appeal dismissed.

R v FI [2017] ACTSC 190; SCC 80 of 2017
Uploaded 27 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – engaging in sexual intercourse with a person above the age of 10 years but under the age of 16 years – female offender – plea of guilty – apparent consent – offender 18 years and two months old – good behaviour order
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – whether appropriate to make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) where a conviction a registrable offence under the Crimes (Child Sex Offenders) Act 2005 (ACT) – offender assessed at a low risk of reoffending – potential impact of a conviction on rehabilitation and employment – potential impact of a conviction on the offender’s ability to be involved in her child’s curricular and extracurricular activities

Read v Burns [2017] ACTSC 184
Uploaded 27 July 2017
EVIDENCE – credibility and the reliability of evidence – contemporaneous documents – recollection of events – plaintiff’s evidence unreliable – expert evidence – expert code of conduct – partisan witness and not subject to the expert witness code of conduct – failure to call witnesses – Jones v Dunkel – cannot give rise to any inference.
TRADE AND COMMERCE – trade practices – misleading and deceptive conduct – misrepresentations – s 12BB of the Australian Securities and Investments Commission Act 2001 (Cth) – false representations and other misleading or offensive conduct – reliance on representations – Corporations Act 2001 (Cth) – accessorial liability – whether defendant must have reasonable basis for statement – seminar – marketing document – plaintiff cannot establish liability – registrable bodies – registration of managed investment schemes – scheme was a managed investment scheme – required to be registered – scheme not illegal or unlawful.
NEGLIGENCE – allegations of negligent acts and omissions in the provision of legal services – terms of retainer – solicitor’s duty of care – failure to act with due skill, care and attention – failure to make necessary enquiries  –  no breach established  – first defendant not liable in negligence. DAMAGES – suffered loss and damage – exemplary damages – consequential losses – reduced value of unit – reduced income – no evidence plaintiff suffered any loss or damage.

R v Ogle [2017] ACTSC 189
Uploaded 27 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – Application to vacate the sentence date.

R v Aroub [2017] ACTSC 187; SCC 208 of 2015
Uploaded 27 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Jury trial – Offences against the person – Sexual intercourse without consent – Act of indecency – Opportunistic digital penetration of sleeping victim – Significant impact on victim – Offender with disadvantaged background – No prior relevant criminal history – Totally concurrent sentences

Elphick v Jenkins [2017] ACTSC 142
Uploaded 26 July 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – Particular Grounds – appeal from Magistrates Court – offender dealt with for simple cannabis possession offence and two more serious  cannabis offences – whether sentence for simple possession offence manifestly excessive – 24-month good behaviour orders with 12 months supervision imposed as “job lot” – offender’s criminal history, circumstances and course of sentencing hearing provide no explanation for sentence for simple possession offence – appeal upheld.

R v Cranfield [2017] ACTSC 171; SCC 18 of 2016; SCC 19 of 2016; SCC 21 of 2016
Uploaded 25 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravene protection order – sexual intercourse without consent – recklessly inflict grievous bodily harm – unlawful assault with intent to engage in sexual intercourse (sexual intercourse in the third degree) – making threat to kill – rolled-up counts– prior offences – late plea of guilty – offender intoxicated on methamphetamine at time of offence – effect of prospect of rehabilitation on nonparole period

Geddes v Taleni [2017] ACTSC 183
Uploaded 24 July 2017
TORTS – NEGLIGENCE – Contributory Negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages.

In the Matter of the Adoption of TT [2017] ACTSC 181
Uploaded 21 July 2017
ADOPTION – DISPENSATION OF CONSENT – Application to dispense consent of birth mother – birth father presumed – birth father not discharged parental obligations – no consent of birth father required – whether requirements of s 35 of the Adoption Act 1993 (ACT) satisfied – other circumstances justifying requirement for consent to be dispensed with – consent of birth mother dispensed with

Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited [2017] ACTCA 29
Uploaded 21 July 2017
APPEAL – PRACTICE AND PROCEDURE – RESTITUTION – General principles – quantum meruit – where appellant identified potential sponsor for sports team – whether unjust enrichment of the respondent – whether primary judge applied the wrong causation test – whether primary judge erred in finding the appellant had not made a material contribution to sponsorship agreement – whether primary judge erred in making various factual findings

Roberts v Stern [2017] ACTSC 182
Uploaded 21 July 2017
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Administration of the estate – application for an extension of time – onus of sufficient cause required – “rest and residue of the estate” – application dismissed

St Hilliers Property Pty Limited v ACT Projects Pty Ltd and Simon Wilson [2017] ACTSC 177
Uploaded 21 July 2017
CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Building, Engineering And Related Contracts – Remuneration – statutory regulation of entitlement to and recovery of progress payments – Building and Construction Industry (Security of Payment) Act 2009 (ACT) –  payment claims – whether a payment claim had been served too late – whether a ‘reference date’ was a necessary prerequisite to its service, and was absent at the time of service – whether an adjudicator had delegated the preparation of his adjudication by having someone else prepare it
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Application For Leave To Appeal From Adjudication Decision Under The Building and Construction Industry (Security of Payment) Act 2009 (ACT) – Whether an adjudicator’s finding of waiver had been an error at law

Forge v Rewers [2017] ACTSC 179
Uploaded 21 July 2017
CIVIL LAW – PERSONAL INJURY – motor vehicle accident – assessment of damages – whether disabilities caused by accident or pre-existing spondylitic condition – turns on own facts

R v Johnson [2017] ACTSC 125; SCC 223 of 2016; SCC 224 of 2016
Uploaded 19 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – common assault – damage property – whether breach of trust involved – guilty pleas not early but before trial date set – offender still a young man – offender’s  dysfunctional childhood – age and circumstances in which offender acquired addiction may be relevant sentencing consideration – victim’s attitude to offence not relevant sentencing consideration – need for offender to address anger – no obligation to backdate new sentence where pre-sentence custody already accounted for in earlier sentencing.

R v Eluga [2017] ACTSC 140; SCC 185 of 2012; SCC 84 of 2016; SCC 85 of 2016; SCC 20 of 2017; SCC 21 of 2017
Uploaded 19 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender to be sentenced for 22 new offences – suspended sentences for 9 earlier offences to be imposed –offender on conditional liberty – extensive criminal history – illicit drug use – offences committed under the influence of and to fund drug use – offender deeply damaged by sexual abuse at school – no evidence of willingness to confront trauma – history of successful attempts at rehabilitation followed by relapse.

Egan-Green v McLean [2017] ACTCA 28
Uploaded 19 July 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether appeal was incompetent – whether primary  judge’s decision was interlocutory or final – failure to file correct documents in timely way attributed to appellant’s reliance upon procedural advice from registry staff – whether appeal futile – whether injustice would be caused to appellant if appeal could not proceed.

Foulkes v Coles [2017] ACTSC 178
Uploaded 19 July 2017
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – assault police officers – obstructing a public official – resist arrest – power to enter premises without warrant to arrest appellant for breach of bail – whether power to arrest for suspected commission of offence extends to power to arrest for breach of bail – whether exception applied – whether practicable to arrest appellant at another time – arrest unlawful

R v Vimahi; R v Grech (No 2) [2017] ACTSC 176; SCC 230A of 2015; SCC 232 of 2015; SCC 278 of 2016; SCC 279 of 2016
Uploaded 18 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender sentenced in two or more jurisdictions for offences which are related – wounding – possession of a firearm – unauthorised possession of ammunition – failure to store a firearm safely – taking a motor vehicle without authority

R v Hoyle (No 2) [2017] ACTSC 175; SCC 150 of 2016
Uploaded 17 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by jury – guilty verdict – act of indecency without consent – sexual intercourse without consent.

Construction Occupations Registrar v Bates (No 2) [2017] ACTCA 27
Uploaded 17 July 2017
APPEAL – PRACTICE AND PROCEDURE – Costs – appeal involving interpretation of Building Act 2004 (ACT) – whether unsuccessful respondent should pay costs of Construction Occupations Registrar – insufficient reasons to depart from the usual rule that costs follow the event – respondent to pay appellant’s costs.

Piscioneri v Whitaker [2017] ACTSC 174
Uploaded 17 July 2017
DEFAMATION – Publication – Default Judgment – calculation of damages.

Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173
Uploaded 14 July 2017
PROFESSIONS AND TRADES – Lawyers – disciplinary action – complaint made more than three years after alleged conduct – failure to consider s 395(2) of the Legal Profession Act 2006 (ACT) – whether s 395(2) a procedural requirement – whether tribunal had jurisdiction to order that requirement be disregarded

R v Stott [2016] ACTSC 94; SCC 107 of 2015; SCC 113 of 2015
Uploaded 12 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdict following jury trial – drug offences – trafficking controlled drug – methylamphetamine
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty verdict following jury trial – weapons offences – s 5 Prohibited Weapons Act 1996 (ACT) – mace

Australian Conservation Services v Liladel Holdings [2017] ACTSC 162
Uploaded 12 July 2017
EQUITY – TRUSTS – Powers of Appointment – fraud on a power – whether the decision in Re Skeats’ Settlement (1889) 42 Ch D 522 prevents the donee of a power of appointment from exercising that power to appoint the donee or a company controlled by the donee – it does not – whether appointment of company controlled by appointor as trustee involved a fraud on the power of appointment in the circumstances – it did not

Australian Conservation Services v Liladel Holdings (No 2) [2017] ACTSC 170
Uploaded 12 July 2017
PROCEDURE – COSTS – Trusts – unsuccessful proceedings as to appointment of trustee of trust – whether there was some difficulty of construction or administration  of a trust justifying the proceedings – whether the proceedings were brought to advance the interests of the plaintiff – jurisdiction to make costs order against non-party – plaintiff with nominal assets – whether appropriate to make costs order against director of plaintiff when proceedings brought for his benefit

Martyn v Calatzis [2017] ACTSC 172
Uploaded 12 July 2017
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal out of time

Dunn v Hanson Australasia Pty Ltd [2017] ACTSC 169
Uploaded 12 July 2017
CONTRACTS – BUILDING CONTRACTS – Breach – breach of statutory warranties – breach of express written terms – breach of contractual warranty – failure to rectify defects – quantum of damages – TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – Representations  – quantum of damages – ancillary liability for damages – proportionate liability - DAMAGES – CONTRIBUTION AND APPORTIONMENT – Proportionate liability – “building action” – “apportionable claim” – “concurrent wrongdoer”

R v Forrest (No 3) [2017] ACTSC 168; SCC 128 of 2016; SCC 129 of 2016; SCC 104 of 2017; SCC 105 of 2017
Uploaded 11 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sentencing for multiple offences – rolled-up counts – aggravated burglary – burglary – theft – receiving stolen property – damaging property – possession of stolen goods – dishonestly driving someone else’s vehicle without their consent – driving as a repeat offender whilst disqualified – transferred summary charges – breach of Good Behaviour Order – general deterrence – specific deterrence – totality of sentence – s 68E of the Supreme Court Act 1930 (ACT)

R v Mokmargana (No 2) [2017] ACTSC 165; SCC 246 of 2016
Uploaded 10 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Administering certain declared substances – plea of guilty.

R v Mokmargana [2017] ACTSC 164
Uploaded 10 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – attempt to engage in sexual intercourse without consent – whether the evidence is capable of supporting a verdict of guilty.

R v Goward [2017] ACTSC 157; SCC 217A of 2016; SCC 217B of 2016
Uploaded 7 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two series of offences – aggravated robbery – co-offender – trafficking in a controlled drug, other than cannabis, namely heroin – unauthorised possession of a prohibited weapon – pleas of guilty – extensive criminal history –  drug use – assistance to authorities – lesser role – totality – sentences of imprisonment imposed.

R v Aleksovski [2017] ACTSC 163; SCC 52 of 2017; SCC 53 of 2017; SCC 96 of 2017
Uploaded 7 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – burglary – theft – aggravated burglary – damage property – driving whilst licence disqualified as a first offender – minor theft – escaping police custody – possessing of drug of dependence namely methylamphetamine – subjective circumstances – pleas of guilty – totality of sentence – sentence to a period of imprisonment – reparation order

Stott v The Queen (No 2) [2016] ACTCA 70
Uploaded 6 July 2017
CRIMINAL LAW – Particular Offences – serious drug offences – trafficking in a controlled drug other than cannabis. – CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – trial judge’s direction to jury erroneous – “reasonable possibility” – application of proviso –appellant lost chance of acquittal – appeal against conviction allowed – new trial ordered.

R v Stott [2017] ACTSC 126
Uploaded 6 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, Arrests, Search, Seizure and Incidental Powers – Witnesses – subpoena unable to be served on witness – application by Crown for arrest warrant – prosecutor provided draft warrant purporting to be in approved form – no approved form for warrant of the kind sought – no express legislative power for Supreme Court to issue warrant where subpoena not served – inherent power of court relied on – whether inherent power of court permitted issue of warrant for arrest of witness unaware of requirement to appear – whether Human Rights Act permitted reliance on inherent power to exercise warrant in absence of “procedures established by law”.

Mint International Pty Ltd v Australian National University [2017] ACTSC 161
Uploaded 6 July 2017
CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for interlocutory injunction – termination of licence by licensor – whether serious question to be tried – whether balance of convenience favours injunctive relief

In the Estate of Southwell [2017] ACTSC 154
Uploaded 6 July 2017
SUCCESSION – Executors and Administrators – Proceedings against executors – Application for leave to file Amended Originating Application – Court Procedure Rules 2006 (ACT) – reasonably arguable – delay – bona fide purchaser at market value – amendment to challenge validity of transfer of property refused – alternate claim seeking payment of consideration refused – limitation period passed – leave granted to file Amended Originating Application with limited amendments – costs order.

The Law Society of the ACT v Legal Practitioner [2017] ACTSC 159
Uploaded 6 July 2017
PROCEDURE – Miscellaneous procedural matters – Application in Proceeding to vacate the hearing date.

Talada Investments v Rovera Scaffolding [2017] ACTSC 160
Uploaded 6 July 2017
PROCEDURE – DISCOVERY AND INTERROGATORIES – Scope of Discovery – whether order for further discovery should be made – test to be applied – whether documents in possession of third parties are within power of party and hence discoverable documents – order for further discovery not made

R v CI [2017] ACTSC 130; SCC 44 of 2017
Uploaded 3 July 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – young offender – aggravated robberies – serious assaults in company against other young people – opportunistic thefts – offender with “borderline” IQ – cannabis use from young age – rehabilitation to take priority over general deterrence – no penalty other than imprisonment appropriate.