Judgments and Sentences

Full-text ACT Court of Appeal and Supreme Court judgments from 2002 are available on this website. For judgments prior to 2002 please contact the Russell Fox Library.

Judgments are generally published within a few days of being handed down, however, sentencing remarks may not be available until some time after sentencing. Please follow us on @ACTCourts Twitter if you want to be alerted about when judgments and sentences are published on the court website. Hard copy decisions can also be viewed in the Russell Fox Library.

 

Recent Court of Appeal, Supreme Court judgments and sentences:

  

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7 July 2020

Millard v Williams [2020] ACTSC 179

CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal Against Sentence – Manifest excess – principles of totality – previous sentence imposed – degree of concurrency required

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7 July 2020

Laipato v The Queen [2020] ACTCA 35

CRIMINAL LAW – APPEAL – Trial – Inconsistent verdicts – Unreasonable, unsafe and unsatisfactory verdicts – “Bad character evidence” – Where defence did not object to evidence at trial

CRIMINAL LAW – APPEAL – Sentence – Error in factual findings – Objective seriousness – Manifest excess – Resentence

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6 July 2020

Canberra Consulting Pty Ltd v Chowindra [2020] ACTSC 177

Enforcement of contractual restrain upon cessation of employment - Interlocutory injunction granted

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3 July 2020

R v Szabo [2020] ACTSC 175

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Recklessly inflict grievous bodily harm – intentionally and unlawfully suffocate infant – circumstantial case – expert evidence – verdict

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3 July 2020

Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33

APPEAL – CONVICTION – Co-Appellants – Unsafe and unsatisfactory verdicts – unreliability of witnesses – miscarriage of justice – plea in bar – application for separate trial – applications to discharge the jury

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2 July 2020

Turner v Carr [2020] ACTSC 176

CRIMINAL LAW – APPEAL – Severity of sentence – lengthy delay in appeal being heard – delay seemingly due to failure to engross warrant – proven rehabilitation of offender – appeal allowed – sentenced to time already served

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1 July 2020

R v Evans; R v Reid [2020] ACTSC 169 (SCC 147 of 2019; SCC 144 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – circumstances of violence – significant injuries to victim – knowingly concerned in taking vehicle without consent – attempt to pervert the course of justice – five co-offenders – whether offenders were OMCG members at time of offending – pleas of guilty – whether impact of COVID-19 leads to more onerous conditions while incarcerated

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1 July 2020

R v Brown [2020] ACTSC 156

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – sexual intercourse without consent – act of cunnilingus admitted – whether two acts of digital penetration occurred

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1 July 2020

R v Masina [2020] ACTSC 89

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 – commonality between incident and alleged offences  – Crown case to be taken at its highest

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30 June 2020

The Queen v Stacker [2020] ACTCA 34

APPEAL – Criminal Law – Prosecution appeal against sentence – whether sentence was manifestly inadequate – aggravated burglaries – unauthorised possession of firearm – whether residual discretion not to intervene should be exercised – re-sentence

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29 June 2020

Bennett v Polosak [2020] ACTSC 168

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special or exceptional circumstances – pregnancy – upcoming release date

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29 June 2020

Seselja v Reardon [2020] ACTSC 167

TORTS – MOTOR VEHICLE ACCIDENT – Whether the first defendant breached his duty of care – whether the first defendant was acting in the ‘agony of the moment’ – where a breach of duty was found DAMAGES – PERSONAL INJURY – Compensation – where the plaintiff suffered an injury to her right hip due to the particular circumstances of the accident

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25 June 2020

R v PU [2018] ACTSC 373 (SCC 56 of 2018; SCC 57 of 2018; SCC 163 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two offences of trafficking in a controlled drug other than cannabis – consideration of subjective features – relatively minor criminal history – on conditional liberty at time of offending – consideration of Pre-Sentence Report – history of substance abuse – consideration of psychological assessment report – pleas of guilty entered in the Magistrates Court

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25 June 2020

Fuller v Allen [2020] ACTSC 32

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Personal injury - ex parte application – motor vehicle accident – breach of care – damages arising from injury – surveillance footage – application for leave to withhold service

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25 June 2020

Fuller v Allen (No 2) [2020] ACTSC 119

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Personal injury - ex parte application – motor vehicle accident – application for leave to withhold service – second application

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25 June 2020

De Gruchy v The Owners Units Plan No. 3989 (No. 2) [2020] ACTSC 166 De Gruchy (No 2)

COSTS – Court Procedure Rules 2006 (ACT), r 1002 – whether offer made was a genuine offer of compromise – whether orders made were no less favourable than the offer – whether offer was a valid Calderbank offer – whether it was unreasonable to reject the offer

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23 June 2020

R v French [2020] ACTSC 133 (SCC 65 of 2019; SCC 66 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two counts of trafficking in a controlled drug other than cannabis – one count of dealing in the proceeds of crime – pleas of guilty – drug and alcohol addictions – mental health conditions – reasonable prospects for rehabilitation if mental health issues and substance addictions addressed

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23 June 2020

On Forbes Developments Pty Ltd v Chase Building Group (Canberra) Pty Ltd [2020] ACTSC 163

CIVIL LAW – Failure by the Principal to pay adjudication amount under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – suspension of work by the Builder under the Act – subsequent determination by expert under the contract resulting in the Builder owing the Principal more than the adjudication amount – date at which the Builder’s right to suspend work comes to an end – it comes to an end at the time of the unqualified acknowledgement by the Principal of the set off of the adjudication amount against the debt owed to the Principal

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23 June 2020

Allcool Facilities and Maintenance Pty Ltd v CCS FM Pty Ltd [2020] ACTSC 162

PRACTICE AND PROCEDURE – SECURITY FOR COSTS – Application for security for costs – corporate plaintiff – whether there are reasons to believe that the plaintiff would be unable to pay the defendant’s costs if ordered to do so – whether delay in bringing application should result in its dismissal – discretionary considerations – consideration of the appropriate amount of security.

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23 June 2020

R v Fairclough (No 2) [2020] ACTSC 134 (SCC 91 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm – plea of guilty – excessive self-defence – prospects for rehabilitation guarded

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23 June 2020

R v Masina (No 2) [2020] ACTSC 152

CRIMINAL LAW – EVIDENCE – Cautions – admissions – requirement to translate caution – police interview with accused – accused fluent in Samoan but not English – telephone interpreter used – Samoan conversations with interpreter subsequently translated – accused did not understand caution – accused’s later conduct in interview consistent with understanding – portion of transcript prior to point of understanding inadmissible – subsequent portion not inadmissible because police asked multiple questions after gaining accused’s permission to ask “one more question”.

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23 June 2020

R v Kemppainen (No 2) [2020] ACTSC 159 (SCC 141 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – Intensive correction order assessment – Public health emergency

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23 June 2020

R v Latu (No 2) [2020] ACTSC 160 (SCC 193 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Resentence – Breach of good behaviour order

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22 June 2020

Watson v The Queen (No 2) [2020] ACTCA 30

CRIMINAL LAW – APPEAL – Conviction – Whether primary judge erred in law in refusing appellant to rely on proposed defences – whether proposed defences tenable in law and fact – whether the primary judge misdirected himself – whether the defendant was forced to enter guilty pleas and did not receive a fair trial

CRIMINAL LAW – APPEAL – Sentence – Manifest excess – recommendation of full-time imprisonment – loss and reversal of onus – breach of trust as aggravating feature – good character

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19 June 2020

R v TX [2020] ACTSC 157 (SCC 264 of 2019 and SCC 265 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – possess prohibited firearm – plea of guilty – disadvantaged background – guarded prospects of rehabilitation

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18 June 2020

Polleycutt v Taylor [2020] ACTSC 158

PRACTICE & PROCEDURE – COSTS – re-exercise of costs discretion on appeal – fixed sum costs order appropriate

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16 June 2020

R v Finau [2020] ACTSC 155

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Sexual assault in the second degree – Sexual intercourse without consent – “Date rape”

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12 June 2020

Stanford v Dermejian [2020] ACTSC 151

DAMAGES – PERSONAL INJURY – motor vehicle accident – where the accident was minor – whether the plaintiff’s ongoing symptoms were caused by injury or an underlying degenerative condition

DAMAGES – PAST AND FUTURE LOSS OF EARNING CAPACITY – whether disability insurance payments should be taken into account in assessment of damages – whether damages should be reduced

EVIDENCE – HISTORIES IN MEDICAL REPORTS – Application under s 136 of the Evidence Act 2011 (ACT) to limit use – application refused

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11 June 2020

R v Bartley; R v Deng; R v McCauley [2019] ACTSC 392 (SCC 54 of 2019; SCC 53 of 2019; SCC 52 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pleas of guilty – three offenders – two counts recklessly inflicting grievous bodily harm by joint commission – one count assault occasioning actual bodily harm by joint commission – three victims – where offences occurred in daylight in place visible to public – where offending occurred in context where Family Violence Order taken out by mother of two of the offenders against one of the victims – consideration of hardship to two offenders’ families – respective roles of offenders distinguished

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11 June 2020

Jakaj v Kinnane (No 2) [2020] ACTCA 28

JUDICIAL REVIEW – APPEAL – Appeal from primary judge’s judicial review of a decision of a magistrate – whether Territory courts’ jurisdiction depends upon judges and magistrates swearing or affirming allegiance to the Queen – whether the prosecution must give evidence that legislation is validly passed – whether appellant discriminated against under s 117 of the Constitution – whether prosecution required to be brought in the name of the Crown – appeal dismissed

JUDICIAL REVIEW – APPEAL – Notice of Appeal in the form of written submissions – jurisdictional point taken but no oral submissions made in support of the appeal – whether reasons required to be given for dismissal of appeal

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11 June 2020

Kibblewhite v Buik [2020] ACTSC 132

APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of contravening family violence order – appellant self-represented at sentencing hearing – appellant suffers from anxiety and autistic spectrum disorder – whether magistrate failed to consider making a non-conviction order – her Honour did fail to do so – specific error – further evidence admitted on appeal – appellant resentenced without conviction

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11 June 2020

R v CT (No 2) [2018] ACTSC 73

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for the disclosure of protected confidence material

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11 June 2020

R v CT [2018] ACTSC 69

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for the Disclosure of Protected Confidence Material – Application to set aside a subpoena

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11 June 2020

Ryan v Vizovitis; Vizovitis v Ryan [2020] ACTSC 150

CIVIL LAW – APPLICATION IN PROCEEDING – Costs – Fixed costs order – rule 1702 agreement – rule 1721 order

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10 June 2020

Stone Living Pty Ltd v 3 Property Group 9 Pty Ltd [2020] ACTSC 149

CAVEATS – application to extend caveats over land – whether there is a serious question to be tried – building dispute – where standard building contract conditions entitled builder to charge over the building site – whether the balance of convenience favours the removal of the caveats – where security offered by separate corporate entity – whether caveats should be extended indefinitely

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10 June 2020

R v Cattle (No 3) [2020] ACTSC 135 (SCC 162 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency – Course of conduct – Historical child sexual offences – Position of authority – Where offender is in serious ill health – Consideration of hardship of particular penalty

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10 June 2020

R v Singh [2020] ACTSC 35 (SCC 251 of 2019; SCC 252 of 2019; SCC 317 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography – possession of child exploitation material – pleas of guilty – reasonable prospects for rehabilitation – consideration of immediate terms of imprisonment for offences of this type

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10 June 2020

R v MC [2020] ACTSC 128 (SCC 56 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – young person – general deterrence versus rehabilitation prospects

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9 June 2020

R v Williams (No 2) [2020] ACTSC 127 (SCC 235 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – plea of guilty – consideration of Intensive Correction Order

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9 June 2020

R v Williams [2019] ACTSC 383 (SCC 235 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach of Good Behaviour Orders – consideration of general deterrence and community protection

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9 June 2020

Forster-Jones v The Queen [2020] ACTCA 31

APPEAL – CRIMINAL LAW – Appeal against sentence – where the Crown concedes that an error occurred – where the sentencing judge did not assess the objective seriousness – resentence

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9 June 2020

R v Henderson [2020] ACTSC 146

CRIMINAL LAW – EVIDENCE – Hearsay Rule – Maker unavailable exception – witness not compellable due to domestic partner objection – no notice given to defence – probative value outweighed by prejudice to accused

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9 June 2020

Gang v You (No. 2) [2020] ACTSC 148

COSTS – First defendant partly successful in Application in Proceeding – whether the plaintiff should be ordered to pay the first defendant’s costs now – whether the circumstances justify an order that the costs be the first defendant’s costs in the cause.

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5 June 2020

Paule v McKay [2020] ACTSC 145

PRACTICE & PROCDURE – Application to amend originating proceedings and statement of claim – no need for claim for interlocutory relief to be added – proposed amendment of statement of claim comprehended by original pleading – amendments allowed

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5 June 2020

R v Henderson (No 2) [2020] ACTSC 147

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Traffic in controlled drug other than cannabis – possession of property suspected of being proceeds of crime – drive while licence suspended – circumstantial case – whether the accused had actual knowledge of the presence of the drug – reasonable conclusion inconsistent with guilt – verdict

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5 June 2020

ZL v Corey [2020] ACTSC 143

APPEAL AND NEW TRIAL – APPEAL – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether further evidence should be admitted – whether Magistrate considered alternatives to imprisonment – whether s 17 disposition appropriate – re-sentence

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5 June 2020

R v Tahana [2020] ACTSC 124 (SCC 77 of 2018; SCC 79 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – one rolled-up count obtaining property by deception – plea of guilty – guarded prospects for rehabilitation – significant history of similar offending

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5 June 2020

R v IS (No 2) [2019] ACTSC 390

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – statutory alternative charges of assault – nine transferred charges of assault – crown's case based almost exclusively upon the complainant’s evidence – accused gave evidence – self-defence raised – consideration of the evidence

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4 June 2020

R v Smith (a pseudonym) [2020] ACTSC 142

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – act of indecency – accused and complainant were young persons – previous consensual sexual activity – strong complaint evidence – guilty on all counts

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3 June 2020

R v McCurley [2020] ACTSC 140 (SCC 164 of 2019; SCC 307 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – five counts aggravated burglary – one count burglary – two counts attempted aggravated burglary by joint commission – two counts theft – one count theft by joint commission – two counts riding in a motor vehicle without consent – one count driving a motor vehicle without consent – one count taking a motor vehicle without consent – two counts causing damage to property by fire by joint commission – one count damaging property by joint commission – one count damaging property – pleas of guilty – general and personal deterrence – guarded prospects for rehabilitation

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3 June 2020

KD v Gillard [2020] ACTSC 144

APPEAL – GENERAL PRINCIPLES – Appeal from Magistrate – Appeal against sentence – re-sentencing – breach of good behaviour order

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2 June 2020

Foote v Coroner’s Court of the ACT [2020] ACTSC 141

CORONERS – s 93 of the Coroners Act 1997 (ACT) – statutory review of findings made at an inquest – whether denial of procedural fairness – whether new evidence – whether insufficiency of enquiry – whether fraud or other error – whether insufficient consideration of public health and safety – whether it is in the public interest or interests of justice to quash the inquest

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29 May 2020

R v UD (No 3) [2020] ACTSC 139

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the accused – reconsideration of decision to order a judge alone trial

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29 May 2020

Garrett-Jones v Kendall [2020] ACTCA 27

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal from an interlocutory decision – decision restrained solicitor from acting for executor in probate proceedings – where solicitor was involved in making of contested will – where solicitor’s evidence will be of significance in substantive hearing – leave to appeal dismissed

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28 May 2020

Millard v Australian Capital Territory [2020] ACTSC 138

PROCEDURE – COSTS – Urgent injunction

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28 May 2020

Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No. 4) [2020] ACTSC 131

PRACTICE AND PROCEDURE — Costs — where plaintiff unsuccessful in major claim but successful in one of four minor claims — where plaintiff awarded nominal damages of $20 —  where plaintiff sought costs order in its favour — whether plaintiff “substantially successful” — whether defendant “bound to fail” in minor claim — whether defendant could have avoided proceedings — whether defendant took unreasonable approach to particulars — plaintiff’s contribution to “unnecessary complexity” — significance of level of nominal damages awarded — whether plaintiff had other “realistic lawful options” in relation to successful claim.

PRACTICE AND PROCEDURE — Costs — where plaintiff unsuccessful in major claim but successful in one of four minor claims — where plaintiff awarded nominal damages of $20 — where plaintiff sought costs order in its favour — Leases (Commercial Tenancies) Act 2001 (ACT) — parties to meet own costs unless court orders otherwise — public policy concerns — risk of discouraging tenants’ claims — Court Procedures Rules 2006 (ACT) — court may attribute specified percentage of costs of proceeding to specified issue or part of proceeding — desirability of avoiding costs order requiring assessment of costs of both parties.

PRACTICE AND PROCEDURE — Costs — application by plaintiff for stay of any costs order — intention to appeal not as such a basis for staying costs order — no claim by plaintiff of hardship, impact on business, or delay in hearing of appeal — no basis for staying costs order.

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28 May 2020

Shipton v Kone Elevators Pty Ltd [2020] ACTSC 129

PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Error in judgment – rr 1613 and 6906 of the Court Procedure Rules 2006 (ACT) – judgment entered for the plaintiff on 3 April 2020 – judgment neglected to address plaintiff’s claim for future out of pocket expenses – amending the judgment to rectify oversight – consideration of plaintiff’s claim for future out of pocket expenses

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28 May 2020

R v Millard (No 2) [2019] ACTSC 393 (SCC 237 of 2015)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breaching of orders

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28 May 2020

R v KT [2020] ACTSC 136

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special circumstances including COVID-19 pandemic – poor record of compliance with bail – substantial surety and security offered

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28 May 2020

R v NI [2020] ACTSC 137

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Threat to kill – threat made to forensic psychiatrist – threat alleged to be in the present tense – contrary evidence of the accused – assertion of past tense – verdict

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28 May 2020

R v Lutze [2020] ACTSC 121 (SCC 91 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – one count of aggravated robbery by joint commission – one count of aggravated burglary by joint commission – consideration of personal deterrence – reasonable prospects for rehabilitation

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28 May 2020

R v Lau [2020] ACTSC 120 (SCC 92 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – one count of aggravated robbery by joint commission – one count of aggravated burglary by joint commission – consideration of personal and general deterrence – poor prospects for rehabilitation

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27 May 2020

R v Middleton (No 2) [2020] ACTSC 123 (SCC 283 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – plea of guilty – two counts engaging in sexual intercourse with a young person under the age of 10 years – three counts engaging in sexual intercourse with a young person under the age of 16 years – four counts committing an act of indecency on a person under the age of 10 years – original judge misinformed about maximum penalty – fresh evidence – impact of mental impairment on offending – consideration of community protection

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27 May 2020

R v Griffiths (No 2) [2020] ACTSC 118 (SCC 242 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – NOMINATED TERM – s 302 of the Crimes Act – whether the Court would have imposed a sentence of imprisonment if the accused had not been acquitted – what the nominated term of sentence would be if the accused had been found guilty – approach taken with respect to nominated term – objective and subjective seriousness of offences

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26 May 2020

In the Estate of Jansen [2020] ACTSC 130

SUCCESSION – PROBATE – Application for declaration under s 11A Wills Act 1968 (ACT) – purported witnesses not present when will signed by testator – no evidence from those purported witnesses given for the application – whether rule 3030 of the Court Procedures Rules applies – it does not – requirements of s 11A satisfied

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22 May 2020

Head v Evans [2020] ACTCA 26

APPEAL – APPEAL FROM MAGISTRATES COURT TO SINGLE JUDGE – Appeal from single judge to Court of Appeal – arrest of passenger in vehicle – whether arrest lawful

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22 May 2020

R v Livas [2020] ACTSC 34

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – no prior remand – application for offender to be remanded in custody on entry of guilty plea – presumption of bail – likelihood of full-time custody

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21 May 2020

R v Douch [2020] ACTSC 126 (SCC 23 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflict grievous bodily harm – caused a fractured jaw and displaced teeth – poor criminal history – offender not at a crossroads – plea of guilty – sentence of imprisonment

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21 May 2020

Council of the Law Society of the Australian Capital Territory v Giles (No 2) [2020] ACTSCFC 2

Procedure - Costs - The defendant is to pay the plaintiff's costs

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19 May 2020

R v Livas (No 2) [2020] ACTSC 116 (SCC 77 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – culpable driving causing death – negligence – death of a child – offender was a professional truck driver – undiagnosed sleep apnoea – on notice as to possible sleep apnoea and failed to attend referrals – failed to inform employer of possible diagnosis – prior criminal history – full-time imprisonment

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19 May 2020

R v Lindsay [2020] ACTCA 25

CRIMINAL LAW – APPEAL – Whether sentence manifestly inadequate – Sexual intercourse without consent – Where offender has mental health issues – Where mental health issues affect moral culpability

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14 May 2020

R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – drug importation allegations – five accused awaiting trial – fourteen charges contained in a single indictment – some charges allege joint offences and others relate to the individual accused – balancing considerations of fairness to the accused and the public interest

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14 May 2020

R v Yavuz [2020] ACTSC 117

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – drug importation allegations – five accused awaiting trial – fourteen charges contained in a single indictment – some charges allege joint offences and others relate to other accused

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14 May 2020

R v Shearer [2020] ACTSC 100 (SCC 24 of 2019; SCC 25 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted robbery of vehicles – took a vehicle without consent  – culpable driving causing grievous bodily harm – taken to hospital in custody – attempted to escape hospital – took possession of police firearm and discharged firearm – assault occasioning actual bodily harm of a police officer – offender under the influence of methamphetamine at time of offending – long-term user of methamphetamine – offences committed whilst subject to good behaviour orders – significant criminal history – low prospects of rehabilitation – sentence of full-time imprisonment

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14 May 2020

R v Nozhat [2018] ACTSC 317

CRIMINAL LAW – Practice and Procedure – Application for a stay of proceedings – failure of the Crown to disclose material in a timely manner – trial proceedings vacated – whether the trial proceedings should be stayed pending costs paid to the accused as a result of the trial proceedings being vacated

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14 May 2020

R v IS [2019] ACTSC 389

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – Trial by judge alone – three counts of choke, suffocate or strangle – consideration of the definition of choking, suffocating or strangling for the purposes of s 28(2)(a) of the Crimes Act 1900 (ACT) – consideration of R v Green (No 3) [2019] ACTSC 96

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13 May 2020

Ivers v Mehdi [2020] ACTSC 112

CIVIL LAW – NEGLIGENCE – Personal injury – plaintiff sustained psychological injury when she saw a motor vehicle strike a pedestrian – motor vehicle driven by first defendant –whether the first defendant owed the plaintiff a duty of care –whether the first defendant breached that duty of care – whether the pedestrian was guilty of contributory negligence – consideration of the medical evidence – consideration of s 34 of the Civil Law Wrongs Act 2002 (ACT) – consideration of damages

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11 May 2020

Barnes v Lodding [2020] ACTCA 23

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court appeal – Resentence – Whether primary judge erred in finding specific error by Magistrate – Residual discretion

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11 May 2020

SP v The Chief Police Officer [2020] ACTSC 114

CRIMINAL LAW – Child Sex Offender – Reporting and other obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT) – application to suspend such obligations – consideration of ss 96 and 97 – suspension order made.

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8 May 2020

Clarke v Cram [2020] ACTSC 113

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – Appeal against finding of guilt – Burglary and theft – DNA evidence of two persons – where the prosecution failed to exclude the possibility that the other person was the offender – convictions set aside.

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8 May 2020

R v Logue [2020] ACTSC 115 (SCC 40 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – prepare for or plan to engage in sexual intercourse with a child outside Australia – use carriage service to access child abuse material – possess or control child abuse material

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6 May 2020

R v Champness [2019] ACTSC 277 (SCC 95 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit an indecent communication to a person under 16 years of age – where offender was victim’s pastor – where relationship of trust – where no criminal history - recognizance release order

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6 May 2020

R v KC [2020] ACTSC 94 (SCC 292 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts maintaining a sexual relationship with a young person – one count sexual intercourse without consent – finding of guilty by jury – where offending occurred in family context – last offending conduct occurred over 30 years ago – relevance of delay – offender demonstrated effective rehabilitation

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6 May 2020

R v Carberry [2020] ACTSC 96 (SCC 32 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – burglary – possessing a knife in a public place – possessing a drug of dependence – burglary of a residential premises whilst residents were home – early plea of guilty – substantial criminal history – context of long-term illicit substance use – guarded prospects of rehabilitation – sentence of imprisonment

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6 May 2020

R v Elcheikh [2019] ACTSC 359 (SCC 161 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to cause offence – using a carriage service to procure a person under 16 years – where offender provisionally diagnosed with a schizoaffective disorder – application of Verdins principles – whether registration under Crimes (Child Sex Offenders) Act 2005 (ACT) would be extra-curial punishment – whether intensive correction order appropriate

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5 May 2020

Dent v Burke [2020] ACTCA 22

TORT – DEFAMATION – Television broadcast of an interview with the respondent – respondent referring to allegations of misconduct against him by appellant – whether primary judge erred in concluding imputations defamatory of the appellant were not conveyed by the publication – meaning to be derived from publication as a whole and not only from words spoken by the respondent – no appealable error

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5 May 2020

Regan v Commonwealth of Australia [2020] ACTSC 107

CIVIL LAW – INTERLOCUTORY APPLICATION – Application to amend defence – unlawful arrest – defendant onus of proof – tradition versus asserted functionality

Uploaded

5 May 2020

Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTCA 21

APPEAL – CONTRACT – Causation – defective building works – nature of the contractual duty owed by appellant to respondent – whether respondent has proved loss – whether finding of trial judge on issue of causation not open – consideration of

Uploaded

5 may 2020

Gang v You [2020] ACTSC 105

PRACTICE AND PROCEDURE – APPLICATION IN PROCEEDING – Application for summary judgment or strike out of a prayer of relief – allegation of breaches of joint venture – intermixing of personal and corporate rights and obligations – need for the Plaintiff to elect between remedies – paragraphs in plea for relief struck out.

Uploaded

5 May 2020

Brown v Australian Capital Territory (No 2) [2020] ACTSC 109

PROCEDURE – COSTS – Whether plaintiff to pay defendants’ costs – Whether there are sufficient public interest reasons to depart from usual costs order

Uploaded

4 May 2020

R v McInnes (No 2) [2020] ACTSC 110 (SCC 241 of 2019; SCC 271 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful possession of stolen property – attempt theft – breach of Good Behaviour Orders

Uploaded

4 May 2020

R v Sirl (No 2) [2019] ACTSC 388 (SCC 19 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – recklessly inflicting grievous bodily harm – found guilty by jury – extensive criminal history – prospects for rehabilitation guarded

Uploaded

1 May 2020

R v Lindsay [2019] ACTSC 387

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – whether witnesses can give evidence prior to the trial of the accused – where witnesses not Australian citizens and not known how long they will be in Australia – whether in the interest of justice – consideration of r 6813 Court Procedure Rules 2006 (ACT)

Uploaded

1 May 2020

R v BF (No 3) [2019] ACTSC 374 (SCC 180 of 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach of good behaviour order – consideration of residential condition

Uploaded

1 May 2020

R v BF [2016] ACTSC 244

CRIMINAL LAW – EVIDENCE – Tendency evidence – sexual offences – child complainants – whether incidents demonstrate tendency – whether tendency evidence may be led

Uploaded

1 May 2020

Ryrie v Tanner (No 2) [2020] ACTSC 104

DAMAGES – PERSONAL INJURY – Motor vehicle accident – Spinal injury – Pre-existing condition in spine – Whether the accident rendered the pre-existing condition symptomatic – Whether spinal fusion surgery reasonable – Damages for economic and non-economic loss, past and future expenses, and voluntary assistance

Uploaded

1 May 2020

R v IB (No 3) [2020] ACTSC 103

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – COVID-19 Emergency Legislation – Court ordered judge alone trial – Principles of fair trials – Orderly and expeditious discharge of court business – Interests of justice – Legislative interpretation – Human rights – Magna Carta – Benefits of trial by jury – History of judge alone trial in ACT

Uploaded

30 April 2020

R v Anderson (No 2) [2020] ACTSC 98 (SCC 111 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – finding of guilt by jury – acts of indecency on and in the presence of a young person – offender befriended the victim’s mother and bonded with the victim – breach of trust – offender subject to serious violence and sexual abuse as a child – suffers from PTSD – previous conviction for sexual offending which postdates the current offending – mental health issues and COVID-19 coronavirus pandemic likely to make imprisonment more onerous for the offender – imprisonment – shorter than normal non-parole period

Uploaded

30 April 2020

R v Anderson [2019] ACTSC 235

CRIMINAL LAW – EVIDENCE – Pre-Trial Application – Application to adduce tendency evidence – accused charged with multiple sexual offences – acts of indecency with and in the presence of young people – whether or not the accused had a sexual interest in young males and had a tendency to act on his sexual interest

Uploaded

29 April 2020

R v McGrail [2019] ACTSC 384 (SCC 145 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – recklessly inflicting grievous bodily harm – incident captured on CCTV – some degree of pre-meditation – guarded prospects for rehabilitation – consideration of individual and general deterrence

Uploaded

29 April 2020

IT v Knight [2020] ACTSC 101

APPEAL AND NEW TRIAL – APPEAL – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether conviction should have been entered – whether further evidence should be admitted in an appeal by rehearing – resentence upon admitting further evidence without a finding of error

Uploaded

29 April 2020

Kemp v Tiirikainen (No 2) [2020] ACTSC 102

CIVIL LAW – APPLICATION – Application for adjournment – late service of affidavit – notice to produce issued – objection taken and affidavit pressed – costs

Uploaded

29 April 2020

R v Serena (No 2) [2020] ACTSC 99 (SCC 43 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous offences – cancellation by the Sentence Administration Board of Intensive Corrections Order – aggravated burglary – common assault – unavailability of residential rehabilitation

Uploaded

29 April 2020

Berhero Pty Ltd v Hinds [2019] ACTSC 378

CIVIL LAW – APPLICATION IN PROCEEDING – application to extend caveat – whether serious issue to be tried – whether balance of convenience favours extension of caveat – whether applicant required to give undertaking as to damages

Uploaded

29 April 2020

R v Inder [2020] ACTSC 55 (SCC 249 of 2019; SCC 250 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand with threat – common assault – unauthorised possession or use of a prohibited firearm – possession of property suspected of being proceeds of crime

Uploaded

29 April 2020

R v Krook [2020] ACTSC 93 (SCC 318 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges arise from two drug deals – recklessly inflict grievous bodily harm – unlawful act causing grievous bodily harm – trafficking in cannabis and cocaine –  offender suffers from Irlen Syndrome, ADHD, anxiety and depression – limited criminal history – early plea of guilty – youth and good prospects of rehabilitation – imprisonment – non-parole period at lower end of appropriate range

Uploaded

28 April 2020

R v Kaihea (No 2) [2020] ACTSC 82 (SCC 252 of 2018; SCC 253 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – drug and alcohol treatment order cancellation

Uploaded

28 April 2020

R v CD (No 2) [2020] ACTSC 84 (SCC 84 of 2017; SCC 140 of 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 – resentence

Uploaded

28 April 2020

R v Laipato [2019] ACTSC 386 (SCC 39 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – unlawful confinement – unlawfully choking, suffocating or strangling a person – finding of guilt by jury – where offences occurred in a family violence context – guarded prospects for rehabilitation – consideration of deterrence and incapacitation

Uploaded

24 April 2020

R v Jones [2020] ACTSC 92 (SCC 21 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – act of indecency on a person under 16 – touched victim on the buttocks three times in a shopping centre – no criminal history – offender diagnosed with autism – autism contributed to the offending – custodial sentence more onerous for offender – wholly suspended sentence

Uploaded

24 April 2020

R v Bell (No 2) [2020] ACTSC 83 (SCC 329 of 2019; SCC 330 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – drug and alcohol treatment order cancellation

Uploaded

23 April 2020

R v Watson [2020] ACTSC 21 (SCC 166 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – offender subject to a supervised bail order at the time of the offences

Uploaded

23 April 2020

Millard v The Queen [2020] ACTCA 20

APPEAL – SENTENCE – Offender Appeal Against Sentence – Whether primary judge erred in characterising seriousness of the offence – whether sentence was manifestly excessive having regard to sentences imposed in other cases – whether insufficient discount allowed for guilty plea – whether nonparole period manifestly excessive

Uploaded

22 April 2020

R v Alaragi [2020] ACTSC 77 (SCC 239 of 2019; SCC 240 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful act causing grievous bodily harm – common assault to be taken into account pursuant to Pt 4.4 of Crimes (Sentencing) Act 2005 (ACT) – substantial delay in sentencing the offender – limited criminal history – mental health conditions – resides in NSW – wholly suspended sentence

Uploaded

22 April 2020

R v Hawker [2020] ACTSC 79 (SCC 26 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – theft – assault occasioning actual bodily harm – substantial criminal history – polysubstance abuse – poor prospects of rehabilitation – public health emergency – sentence of imprisonment

Uploaded

22 April 2020

R v Coleman [2020] ACTSC 97

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the accused – orderly and expeditious discharge of court business – interests of justice – fair trial – accused on bail

Uploaded

22 April 2020

R v Sidaros (No 4) [2020] ACTSC 87 (SCC 312 of 2018; SCC 313 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted murder – Intentionally inflict grievous bodily harm – Act endangering life – Arson – Aggravated burglary – Discharge loaded firearm – Dishonestly ride in motor vehicle – Failure to properly store ammunition – Joint criminal enterprise – Guilty verdicts – Outlaw motorcycle gang – Risk of recidivism – General and personal deterrence

Uploaded

21 April 2020

Higgins v Gungahlin Golf Investments Pty Ltd [2020] ACTSC 95

COSTS – Interlocutory costs order – whether assessment and recovery of costs related to an application in proceedings should be delayed until the end of the substantive proceedings

Uploaded

21 April 2020

Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1

LEGAL PRACTITIONERS – Application to remove practitioner from the roll following ACAT recommendation – History of misconduct – Misappropriation of trust monies – Whether defendant is a fit and proper person to practise law – Practitioner’s name removed from local roll

Uploaded

21 April 2020

R v Kristiansen [2020] ACTSC 14 (SCC 297 of 2019; SCC 298 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated attempted burglary – possessing drug of dependence – committed whilst subject to good behaviour orders – context of significant illicit substance use – good prospects for rehabilitation – good family support – custodial sentence to be served by intensive correction order

Uploaded

21 April 2020

Gonyley v Raiser [2020] ACTSC 86

APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against findings of guilt – drive while disqualified – refuse to provide a breath sample or undergo alcohol screening test – statutory construction – where the Magistrate erred in finding the car park was a road related area – appeal allowed – findings of guilt overturned

Uploaded

20 April 2020

R v Griffiths [2020] ACTSC 51

CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – aggravated burglary – threat to kill – whether the Court considers a verdict of not guilty by way of mental impairment is appropriate – s 321(2) of the Crimes Act 1900 (ACT) – whether the accused was mentally impaired pursuant to s 28 of the Criminal Code 2002 (ACT)

Uploaded

20 April 2020

R v SI [2019] ACTSC 376 (SCC 279 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – aggravated robbery – intentional threat to kill – circumstantial case – whether the prosecution could establish that it was the accused who was one of the people who committed these offences

Uploaded

20 April 2020

R v Watson [2019] ACTSC 385 (SCC 285 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Order – re-sentence

Uploaded

20 April 2020

R v Watts [2020] ACTSC 91 (SCC 44 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Industrial law – Workplace incident resulting in death – Breach of s 31(1) of Work Health and Safety Act 2011 (ACT) – Duty of worker under s 28 of Work Health and Safety Act 2011 (ACT) – Reckless conduct exposing individual to risk of death or serious injury – Unsafe operation of a crane in construction site – Imprisonment

Uploaded

20 April 2020

Muench v McCue [2020] ACTCA 17

APPEAL – Where accused was convicted of offence of attempting to capture visual data in circumstances of indecency or invasion of privacy – where conduct occurred between two change room cubicles and identity was in issue – where accused appealed the findings of a magistrate and the primary judge that the offence had been proved beyond reasonable doubt – whether there was a miscarriage of justice – whether finding was not unreasonable and not supported by the evidence – whether it was open, on the whole of the evidence, to find beyond reasonable doubt that the accused was guilty of the offence charged – where evidence, considered as a whole, was capable of supporting a finding of guilt beyond reasonable doubt – where evidence, considered as a whole, was capable of excluding any alternative hypothesis – where it was open to the magistrate and the primary judge to find offence had been proved beyond reasonable doubt – where there was no miscarriage of justice – appeal dismissed

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20 April 2020

R v UD (No 2) [2020] ACTSC 90

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the accused – orderly and expeditious discharge of court business – interests of justice – fair trial

Uploaded

20 April 2020

Russell v Glenn [2020] ACTSC 81

DUTY APPLICATION – Application by the first and second plaintiffs to serve expert report on the defendant – whether leave should be granted – whether exceptional circumstances exist

Uploaded

17 April 2020

Ngata v The Queen [2020] ACTCA 18

APPEAL – CRIMINAL LAW – Appeal against sentence – charge of recklessly inflicting grievous bodily harm – whether the sentencing judge failed to take into account a psychological report in relation to the appellant’s mental health condition and his offending behaviour – whether the sentencing judge failed to take into account a report from a visa and migration advisor in relation to the prospect of the appellant being deported – whether the sentencing judge failed to consider s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) – whether the sentencing judge failed to consider s 11 of the Human Rights Act 2004 (ACT) – whether the sentencing judge failed to give an adequate discount for the appellant’s plea of guilty – whether the sentence was manifestly excessive, unreasonable and unjust

Uploaded

17 April 2020

R v UD [2020] ACTSC 88

CRIMINAL LAW – APPLICATION IN PROCEEDING – Application for Removal of Matter to Full Court – Balance of considerations – possibility of severance

Uploaded

17 April 2020

Ryrie v Tanner [2020] ACTSC 74

CIVIL LAW – APPLICATION IN PROCEEDING – Application to vacate hearing date – reassessment of plaintiff by medicolegal expert – supplementary report not yet produced – application deemed premature

Uploaded

17 April 2020

R v FT; R v CU [2020] ACTSC 80 (SCC 11 of 2020; SCC 13 of 2020; SCC 57 of 2020; SCC 74 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – minor theft – young persons

Uploaded

17 April 2020

R v Khoder (No 2) [2020] ACTSC 76 (SCC 61 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in controlled substance other than cannabis

Uploaded

17 April 2020

Today’s Homes and Lifestyle Pty Ltd (in liquidation) v McCoullough [2020] ACTSC 72

CIVIL LAW – APPLICATION IN PROCEEDING – Application for Statement of Claim to be struck out – application for plaintiffs’ claims to be dismissed – provision of security for costs in proceeding – liquidation matter – whether there were loans from company to the defendants

Uploaded

14 April 2020

BJM Canberra Pty Ltd v Australian Capital Territory (No 2) [2020] ACTCA 14

COSTS – APPLICATION FOR COSTS – Respondent seeks costs on an indemnity basis or a solicitor and client basis – respondent made an offer of compromise and a Calderbank offer to the appellant – offers were rejected and the appeal was subsequently dismissed – the offer of compromise was not in accordance with r 1002(2) – whether it was unreasonable for the appellant to reject the Calderbank offer – it was not – the appeal involved a one-dimensional construction issue of a single clause – costs application dismissed

Uploaded

7 April 2020

R v Goolagong [2020] ACTSC 67 (SCC 7 of 2019; SCC 326 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving motor vehicle without consent – unlawful possession of a stolen motor vehicle – drive unlicensed – drug and alcohol treatment order not granted

Uploaded

6 April 2020

Massouras v Kone Elevators Ptd Ltd; Pattinson v Kone Elevators Ptd Ltd; Shipton v Kone Elevators Ptd Ltd; Soesman v Kone Elevators Ptd Ltd [2020] ACTSC 66

CIVIL LAW – NEGLIGENCE – Personal injury – plaintiffs injured when lift malfunctioned – first defendant was engaged by the building manager to conduct maintenance and services to the lift – whether or not the malfunction was occasioned by any negligence on the part of first defendant – if so, whether the injuries alleged to have been suffered by the plaintiffs were caused or materially contributed to by the incident –  whether one of the plaintiff’s claim was statute barred – consideration of the medical evidence – assessment of damages

Uploaded

6 April 2020

Brown v Australian Capital Territory [2020] ACTSC 70

HUMAN RIGHTS – UNLAWFUL DETENTION – Offences near the border of New South Wales and Jervis Bay Territory – Whether ACT court lacked jurisdiction – Whether detention “unlawful” within the meaning of the Human Rights Act – Whether s 18(7) creates a freestanding cause of action – Relationship between s 18(7) and tort of false imprisonment

TORTS – FALSE IMPRISONMENT – Whether plaintiff falsely imprisoned – Compensation and damages

Uploaded

3 April 2020

R v Kemppainen; R v Rose [2020] ACTSC 69 (SCC 141 of 2019; SCC 26 of 2020; SCC 27 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – Common assault – Co-offenders – Where offender has previous violent offence – Public health emergency

Uploaded

3 April 2020

McLennan v Meyer Vandenberg (No 2) [2020] ACTCA 15

CROSS-APPEAL – COSTS – against primary judge’s costs order – application of r 1725(2) Court Procedures Rules 2006 (ACT) – whether inclusion of equitable compensation in Statement of Claim insulates against application of the rule when that relief was not pursued – it does not – whether reasonable to reject Calderbank offer where pleaded case weak – it was not

APPEAL – COSTS – costs of the substantive appeal – appellant only successful in obtaining pre-judgment interest – interest would have been awarded had the appellant directed the primary judge to it – ground of appeal on interest included as a costs ‘insurance policy’ – offer by respondent to pay pre-judgment interest – rejection of offer inconsistent with s 5A Court Procedures Act 2004 (ACT) – costs awarded to respondent upon issues in relation to which it was successful.

Uploaded

2 April 2020

Cattle v The Queen [2020] ACTCA 10

APPEAL – CRIMINAL LAW – Application for leave to appeal an interlocutory decision – Whether primary judge erred in concluding that provision has retrospective operation – Whether accused would suffer substantial injustice – Historical child sexual offences – Course of conduct charge

Uploaded

2 April 2020

R v Cattle (No 2) [2020] ACTSC 59

CRIMINAL LAW – EVIDENCE – Historical child sexual offences – Whether asserted fact fresh in memory of complainant when representation made – Whether portions of expert report admissible under s 108C – Indecent assault on female – Act of indecency on young person

Uploaded

2 April 2020

Watson v The Queen [2020] ACTCA 16

APPLICATION – PRACTICE AND PROCEDURE – Application for bail – exceptional circumstances – application for stay of conviction and sentence pending appeal – manifest excess – alleged error of law – consideration of delay – prospects of success

Uploaded

2 April 2020

R v Cattle [2020] ACTSC 8

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – application for a stay of proceedings – application for severance – course of conduct charge for child sexual offences – retrospectivity

Uploaded

1 April 2020

R v Collaery (No 5) [2020] ACTSC 68

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to vacate listed hearing – COVID-19 pandemic – where the hearing has already been re-listed once – where the delay to the hearing is likely to be lengthy – application consented to by all parties – hearing vacated

Uploaded

1 April 2020

R v Collaery (No 4) [2020] ACTSC 61

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Hearing required under s 27(3) National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth) – whether listed hearing should be vacated due to coronavirus pandemic – not at this stage – procedural and evidentiary issues in relation to hearing

Uploaded

1 April 2020

R v Gray [2020] ACTSC 40 (SCC 331 of 2019; SCC 332 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – going equipped for theft – failing to report a change of details as a registrable offender – trespass – drug and alcohol treatment order

Uploaded

1 April 2020

R v Hinder [2020] ACTSC 55 (SCC 20 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised possession or use of prohibited weapons – theft – drug and alcohol treatment order

Uploaded

31 March 2020

R v Ebbott [2019] ACTSC 379 (SCC 293 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – consideration of offender’s drug and gambling abuse – consideration of Intensive Correction Order

Uploaded

31 March 2020

R v Taylor (No 2) [2019] ACTSC 377 (SCC 168 of 2016; SCC 169 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach of Good Behaviour Order – continued abuse of alcohol

Uploaded

30 March 2020

De Gruchy v The Owners – Units Plan No. 3989 [2020] ACTSC 65

NUISANCE – nuisance by noise – whether unreasonable interference with enjoyment of premises – whether plaintiff has title to sue – whether defendant adopted or continued the nuisance – whether damages an adequate remedy – whether plaintiff entitled to aggravated damages

Uploaded

27 March 2020

R v Charles [2020] ACTSC 39 (SCC 343 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug and alcohol treatment order – aggravated burglary - riding in a motor vehicle without consent

Uploaded

25 March 2020

Talent v Official Trustee in Bankruptcy & Anor (No 5) [2020] ACTSC 64

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application in proceeding – application to vacate final hearing date – outbreak of infectious disease – ill-health of various parties – ability of proceedings to be conducted remotely – consideration of any prejudice arising from delay

Uploaded

25 March 2020

R v Barrantes [2019] ACTSC 381 (SCC 220 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – act of indecency in the presence of a person under 10 years – CCTV footage of incident occurring in a public place – reasonable prospects for rehabilitation

Uploaded

25 March 2020

The Pharmacy Guild of Australia v Nectaria Nominees Pty Limited as Trustee for Nectaria No 2 [2019] ACTSC 382

CIVIL LAW – CONTRACT LAW – Interlocutory injunction application – licence agreement – right to name building – right to install advertising signage – whether there is a serious question to be tried

Uploaded

23 March 2020

R v Stott (No 2) [2020] ACTSC 62

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – s 20C Bail Act 2002 (ACT) – change of circumstances – adherence to stringent conditions – outbreak of infectious disease