Kuo v Barrow-Yu [2025] ACTSC 259

PRACTICE AND PROCEDURE – FREEZING ORDERS – Ex parte application – where proceedings ongoing in Victorian County Court – where a previously granted freezing order restraining property in favour of other plaintiffs still in force – where the same property now sought to be frozen by present plaintiffs – sufficient prospect that present plaintiffs will obtain favourable order in Victoria enforceable in this court – sufficient risk that defendants, or entities in their control, will secure the discharge of the existing freezing order and dispose of the assets – freezing order made.

PRACTICE AND PROCEDURE – JOINDER – Ex parte application – where freezing order made in existing proceedings – where present plaintiffs seek freezing order over the same assets – where existing proceedings solely concerned the enforcement of a judgment debt – where judgment debt since paid – not appropriate to permit joinder.

The Supreme Court has granted an ex parte application for freezing orders. The application related to Canberra property already the subject of freezing orders in favour of other plaintiffs, in circumstances where there are ongoing proceedings in Victoria involving the parties. The court found sufficient prospects that the present plaintiffs will obtain a favourable order in the Victorian County Court, and a sufficient risk that the defendants, or entities they control, may secure the discharge of the existing freezing order in the other proceedings and dispose of the assets.

DPP v Benn (No 2) [2025] ACTSC 266 (SCC 171 of 2023; SCC 172 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – assault occasioning actual bodily harm – destroy/ damage property – common assault – family violence offences – lack of genuine remorse – involved a breach of trust – had engaged in rehabilitation after being remanded in custody – significant protective factors – limited criminal history – sentence of full time imprisonment – offender to engage in sexual offending programs as directed.

O’Connell v DPP [2025] ACTCA 20

Judgment summary

APPEAL – Appeal against conviction – verdict by jury – whether verdict unreasonable or unable to be supported by the evidence – whether there was a miscarriage of justice resulting from the prosecutor’s closing address – whether there was a miscarriage of justice resulting from the trial judge’s failure to direct the jury as to the meaning of the term “probability” – whether there was a miscarriage of justice resulting from the trial judge’s failure to remind the jury of other evidence when a recording of the principal prosecution witness’s evidence was replayed – whether jury ought to have entertained a doubt as to the requisite mental element of reckless indifference – role of appellate court.

The Court of Appeal has by majority upheld an appeal against the conviction of the appellant by a jury for murdering his partner when she was thrown from the bonnet of his car as he drove away from her house. Taylor J had a reasonable doubt as to whether the appellant had the necessary mens rea of reckless indifference, which required proof beyond reasonable doubt of the probability that his conduct would cause the victim’s death.  Her Honour considered this doubt was not one that could be explained by the advantage enjoyed by the jury. Loukas-Karlsson J agreed with Taylor J in upholding the appeal.

McCallum CJ dissented, rejecting a ground that the verdict was unreasonable and holding that there was no error or shortcoming in the trial judge’s directions. McCallum CJ noted that the central issue in the trial was whether the appellant drove off with the victim on the bonnet.  Her Honour held that, it having been open to the jury to find that she was, it was not for the Court of Appeal to consider a speculative hypothesis as to the appellant’s conduct and state of mind that was not raised at trial or in the appeal.

The Owners - Units Plan No 4421 v Geocon Constructors (ACT) Pty Ltd (No 2) [2025] ACTSC 206

PRACTICE AND PROCEDURE – PLEADINGS – Applications by different defendants to strike out parts of statement of claim – where some pleadings raise difficult questions of statutory interpretation – where some pleadings provide insufficient details about the case to be met – some pleadings struck out with leave to replead

PRACTICE AND PROCEDURE – COSTS – Interlocutory applications – where applicants successful on some grounds but unsuccessful on others – inappropriate to encourage expectation that, if strike out applications are only partly successful, costs will be awarded – parties encouraged to engage in pragmatic compromise – no order as to costs

STATUTES – INTERPRETATION – Drafting error – previous legislation copied and pasted – change in sub section numbering not accommodated – error not identified or corrected during 21 years of operation – necessary to read internal cross reference as if it were to the correct sub section

The Supreme Court has ruled on applications by certain defendants to strike out parts of the plaintiff’s pleadings in its claim against persons or entities involved in the Gungahlin “Infinity” development.

The applications were successful in part, with the relevant pleadings struck out with leave to replead. As the applications were only partially successful, the court noted that it would be inappropriate to award costs to the defendants for the applications; rather, parties should be encouraged to engage in pragmatic compromise.

In deciding the matter, the court observed that a drafting error had occurred when certain legislative provisions were renumbered, finding it necessary to read an internal cross‑reference as if it were to the correct sub‑section.

TS v DT [2025] ACTSC 215

The Supreme Court has dismissed an appeal against a family violence order (FVO) imposed by the ACT Magistrates Court. The court found that the first ground of appeal was doomed to fail by reason of a Court of Appeal judgment binding on the parties. The second ground of appeal was doomed to fail as the order appealed from had expired. On those bases, the appeal was dismissed as frivolous, vexatious or an abuse of process.

In the matter of the adoption of EP [2025] ACTSC 264

ADOPTION – DISPENSATION WITH CONSENT – Application to dispense with requirement for consent of birth mother to adoption of young child by prospective adoptive parents –- whether relevant person’s identity can be established – whether dispensation necessary in the best interests of the young person – where child has been residing with the prospective adoptive parents for extended period – where no notice of opposition filed – dispensation order made.

Alananzeh v Zgool Form Pty Ltd [2025] ACTCA 19

Judgment summary

TORT – NEGLIGENCE – EXCESSIVE OR INADEQUATE DAMAGES – Appeal on basis that primary judge erred in the manner that she reduced damages for vicissitudes – primary judge reduced whole award of damages by 25 percent on account of vicissitudes rather than only reducing component of damages relating to future economic loss – reduction for vicissitudes cannot apply to a past loss – respondents conceded error – appeal allowed

TORT – NEGLIGENCE – EXCESSIVE OR INADEQUATE DAMAGES – Appeal on ground that primary judge erred when discounting buffer for future economic loss – buffer awarded on basis that appellant will obtain funds to retrain, and have money to live on while retraining, for a period of two years – where appellant had pre-existing asymptomatic medical condition – where primary judge dealt with possibility of appellant becoming symptomatic by increasing vicissitudes discount – no clear delineation between cases where appropriate to award a buffer and those where appropriate to conduct a numerical calculation – no error in basing buffer for future economic loss upon numerical considerations that informed calculation of past economic loss – no error in reducing buffer to take into account vicissitudes

TORT – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – Cross appeal by second respondent as to existence and scope of duty of care – where appellant a formwork worker, first respondent a formwork subcontractor employing the appellant, second respondent the formwork contractor and third respondent the default insurer – where primary judge found that second respondent assumed a duty of safety for its subcontractors pertaining to conditions of the site where those subcontractors were being directed to work – no error disclosed in primary judge’s reasoning process

The Supreme Court has allowed an appeal on the basis that the primary judge erred in the manner in which she reduced damages because of vicissitudes. The award of damages ought to only have been reduced in relation to future economic loss rather than all heads of damages. The award of damages was consequently increased from $243,900 to $300,200.

A cross-appeal was filed by the second respondent in relation to the existence and scope of the duty of care it owed, the findings in relation to breach of that duty and contributory negligence. The cross-appeal was dismissed.

DPP v Eichmann (No 3) [2025] ACTSC 258 (SCC 338 of 2022; SCC 339 of 2022; SCC 241 of 2023; SCC 148 of 2025)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and punishment – Sentence – treatment order previously cancelled pursuant to s 80ZE – imposition or resentence – consideration of compliance with drug and alcohol treatment order – further offending while on treatment order – theft by way of joint commission – suspended sentence not appropriate – deterrent effect of parole period necessary –offender intends to move back to Queensland upon release to continue rehabilitation – family support and prosocial environment available – early release on parole with recommendation to facilitate continued rehabilitation in Queensland – lengthy period of supervision in the community.

Shearman v Dosen Holdings [2025] ACTSC 265

APPEAL – CIVIL LAW – Contracts – Consumer law – Judgment – appeal from a decision of a Magistrate – claims for damages – misleading and deceptive conduct – common property of the complex affected by defects – appeal upheld

The Supreme Court has allowed an appeal from the Magistrates Court. This appeal was brought by seven appellants who purchased residential units from Dosen Holdings. The appellants submitted that the Magistrate erred in dismissing their claims for misleading or deceptive conduct against Dosen and its two directors.

It was held that the Magistrate should have found that the warranties made by or on behalf of Dosen, which ultimately were present in the form of a clause in the contract, materially contributed to the appellants entering into their contracts and consequently suffering loss and damage. Further, the Court also found that the directors were also involved in the misleading or deceptive conduct of Dosen given the small nature of the company and that the directors were also the builders of the units. The appeal was allowed, and the orders of the Magistrate were varied.

DPP v Wilson (a pseudonym) [2025] ACTCA 4

APPEAL – LEAVE TO APPEAL FROM INTERLOCUTORY JUDGMENT – s 97A of the Evidence Act 2011 (ACT) – tendency evidence – assessment of significant probative value – where primary judge found exceptional circumstances under s 97A(5) – whether the standard of review under s 97A(4) is House v The King or correctness.

The Court of Appeal has granted leave to appeal from an interlocutory judgment of a justice of the Supreme Court in relation to the admissibility of tendency evidence in proceedings involving child sexual offences under s 97A of the Evidence Act 2011 (ACT).

The issues which have been traversed in the judgment include the primary judge’s assessment of whether the evidence had significant probative value, and whether there were exceptional circumstances established in relation to certain matters the primary judge considered in making her assessment of significant probative value. The judgment has also noted a dispute as to whether s 97A(4) imports a true discretion or not, which has significance for the standard of review on appeal to be applied.

The Court of Appeal is to determine this appeal substantively at a later date.

DPP v Fielding (No 2) [2025] ACTSC 257

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –– unanimity direction – route to criminal responsibility – joint commission – knowingly concerned – extensions of criminal responsibility – ss 45 and 45A of the Criminal Code 2002 (ACT).

DPP v Fielding [2025] ACTSC 252

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – indictment – whether indictment is defective – joint commission – knowingly concerned – extensions of criminal responsibility – ss 45 and 45A of the Criminal Code 2002 (ACT).

Dunn v The State of New South Wales [2025] ACTSC 260

JURISDICTION, PRACTICE AND PROCEDURE – CROSS-VESTING – application to transfer proceedings to NSW Supreme Court – plaintiff domiciled in Queensland – prospective lay and expert witnesses located in NSW and Queensland – no defence yet filed – facts of application neutral as to favourability of forum – transfer not in interests of justice – application dismissed

DPP v Franklin (No 5) [2024] ACTSC 196

CRIMINAL LAW – Application to adduce prior evidence of family violence in respect of family violence and sexual violence offending – s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – consideration of relationship and context evidence – application granted.

The publication restriction has been removed.

DPP v Franklin (No 4) [2024] ACTSC 35

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tendency evidence – application to admit tendency evidence of two incidents involving sexual assaults – cross-admissibility of evidence of charged incidents – where contemporaneous evidence of first incident varied significantly from later evidence – requirement to take evidence at its highest – evidence cross-admissible as tendency evidence.

The publication restriction has been removed.

DPP v Franklin (No 2) [2023] ACTSC 452

CRIMINAL LAW – application for disclosure of protected confidences – evidence that complainant previously made false allegations of sexual assault – evidence of complainant’s mental health and consumption of alcohol at time of previous alleged false complaint – disclosure necessary for accused to have a fair trial – leave granted to disclose documents.

The publication restriction has been removed.

DPP v Franklin (No 1) [2023] ACTSC 451

CRIMINAL LAW – application for disclosure of protected confidences – evidence that complainant had previously made false allegations of sexual assault – evidence of complainant’s mental health and consumption of alcohol at time of previous alleged false complaint – subpoena limited to those matters.

The publication restriction has been removed.

R v Noy [2025] ACTSC 93 (SCC 333 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure a child for sexual activity – using a carriage service for child abuse material – where victim aged 13 and offender aged 18 years – nature of offending inherently serious – communications quickly descended into highly sexualised interaction – specific deterrence an important consideration – real and significant harm caused – [redacted] – consideration of offender’s youth – solid prospects of rehabilitation – reduction in sentence where plea of guilty entered at first opportunity – period of imprisonment imposed – combination of factors may demonstrate that the circumstances of the case are exceptional – exceptional circumstances warrant immediate release on recognizance release order

In the matter of the adoption of JB [2025] ACTSC 253

ADOPTION – DISPENSATION WITH CONSENT – Application to dispense with requirement for consent of biological mother to adoption of young child by prospective adoptive parents – whether dispensation necessary given previous consent – whether relevant person’s identity can be established – whether dispensation necessary in the best interests of the young person – where child has been residing with the prospective adoptive parents for more than 2 years – where no notice of opposition filed – dispensation order not required – previous consent treated as effective.

In the Estate of Margaret Mary Tassie [2025] ACTSC 255

SUCCESSION – WILLS, PROBATE & ADMINISTRATION – application for rectification of a will – where testator intended to appoint a director of law firm as executor – uncertainty as to person or object – intention of testator clear – statutory discretion to rectify exercised.

DPP v Wilson (a pseudonym) (No 3) [2025] ACTSC 229

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – jury trial – acts of indecency – historical allegations – whether the date range identified in the indictment is a material particular – consideration of impact of tendency evidence.

DPP v Wilson (a pseudonym) (No 2) [2024] ACTSC 286

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – amendment of date range on the indictment – accused no longer an adult for the duration of the date range – application to revisit the tendency ruling – application to recall the complainant – two child complainants – consideration of relevance and probative value – consideration of whether exceptional circumstances exist – indictment severed.

The publication restriction has been lifted.

DPP v Eren [2025] ACTSC 199

EVIDENCE – EXPERT EVIDENCE – Whether report of memory psychology academic admissible – where report concludes complainant substituted her memory of presently charged events with memory of past sexual assaults – academic literature relied on not comparable to present circumstances – evidence does not support report’s conclusions – report’s probative value substantially outweighed by unfair prejudice to prosecution

EVIDENCE – PRIOR SEXUAL HISTORY – Where limited references suggest complainant had previously been sexually assaulted – purpose of 2003 evidence reforms to make it harder to adduce such evidence – not established that the evidence would have substantial relevance to a fact in issue or would substantially impair confidence in the reliability of the complainant’s evidence

EVIDENCE – PRIOR SEXUAL HISTORY – Voir dire – where accused seeks to adduce evidence of prior sexual history – where evidence is limited – whether such a course is a ‘fishing expedition’ – not appropriate to cross-examine complainant on voir dire to support application to adduce that evidence before the jury – such a course contrary to legislative intention

The Supreme Court has ruled that a report prepared by Professor Goodman-Delahunty is inadmissible in the trial of the accused. Her report concluded that the complainant substituted her memory of the presently charged events with memory of past sexual assaults.

The court found that her report relied on literature not comparable to the circumstances in question, that the evidence did not support her report’s conclusions, and that the report’s probative value was substantially outweighed by unfair prejudice to the prosecution.

The court also refused to permit a voir dire to explore limited references that the complainant had been previously sexually assaulted, finding such a course to be contrary to legislative reforms.

DPP v George [2024] ACTSC 37 (SCC 229 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – damaging property – offending while in lawful custody – riot – offender had a background of profound disadvantage – history of illicit substance use – extensive criminal history including other offences committed in custody – limited remorse – some prospects of rehabilitation – delay in prosecution – no explanation for delay – existing sentence – sentence of imprisonment imposed

The publication restriction has now been lifted.

DPP v Black (No 2) [2025] ACTSC 219 (SCC 240 of 2023; SCC 179 of 2024; SCC 180 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – property damage – assault occasioning actual bodily harm – assault frontline community service provider – riot – guilty plea – offences committed in custody – significant delay in prosecution – consideration of parity - disadvantaged childhood and upbringing – application of Bugmy principles.

DPP v Westhorp [2024] ACTSC 152

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Pre-trial application – section 97A Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – charged and uncharged conduct

The publication restriction has been lifted.

DPP v Collier [2024] ACTSC 340 (SCC 249 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –– arson – scheduled offence of damage property – offending committed while in lawful custody – riot – moderate criminal history including a previous offence committed in custody – no further reoffending – excellent prospects of rehabilitation – where offender has been in custody for a lengthy period – egregious delay in prosecution – no explanation for delay – existing sentence – partially suspended sentence imposed

The publication restriction has been lifted.

R v Winters (No 2); DPP v Winters [2024] ACTSC 356 (SCC 272 of 2021; SCC 160 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach – breach of good behaviour order by fresh offending – sentenced for new offending in Magistrates Court – remainder of suspended sentence imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – property damage – guilty plea – offences committed in custody – significant delay in prosecution – consideration of parity – disadvantaged childhood and upbringing – application of Bugmy – some prospects of rehabilitation – sentence of full-time imprisonment imposed

The publication restriction has been lifted.

DPP v Lucas (No 2) [2025] ACTSC 248

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – Drug and Alcohol Treatment Order – graduation – order confirmed – participant to continue under good behaviour order – setbacks and challenges – non-linear nature of rehabilitation – commitment to sobriety and treatment order – support network –  a dog named Jack – literacy goals – objects of treatment order achieved.

The Supreme Court has graduated a participant from the treatment and supervision part of his drug and alcohol treatment order, moving him to the good behaviour portion of the order. The Court commended the participant for his growth and commitment to his sobriety journey. The Court commended the participant for his honesty and accountability while on the treatment order, and for his growth as a person. The participant will now be subject to a good behaviour order for a period of some 2 years.

DPP v Adams [2025] ACTSC 167 (SCC 265 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – persistent sexual abuse of a child – aggravated intentional and unlawful choke, rendering unconscious – aggravated assault occasioning actual bodily harm – consideration of features which inform objective seriousness of persistent sexual abuse of child offence – where victim aged between 14 and 15 and offender aged between 33 and 34 years during offending – where victim fell pregnant twice as a result of the offending – where victim vulnerable and exploited by offender – sexual and emotional manipulation – offending extremely serious conduct – current sentencing practice – consideration of authorities from other jurisdictions – offender’s criminal history such that no leniency can be afforded – Bugmy principles enlivened – guarded prospects of rehabilitation – moderate reduction in sentence for guilty plea – period of imprisonment imposed – lengthy period of supervision in community.

Gamage v Snelleksz [2025] ACTSC 239

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – appeal from Magistrates Court – appeal against conviction – correctness standard – distribute intimate image – threaten to distribute intimate image – threat to kill – stalking – where intimate images were sent from the complainant’s email address – where complainant denied sending the intimate images – whether the Magistrate erred in finding that the complainant was a witness of truth –  whether complainant’s evidence was contradicted by expert digital forensic evidence – adequacy of reasons – appeal dismissed.

DPP v Ivanovski [2025] ACTSC 237 (SCC 48 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – non-consensual removal of condom during paid sexual service – ‘stealthing’ – intentional misrepresentation about use of condom negates consent – whether removal of condom premeditated – assessed at lower part of mid-range of objective seriousness – no prior criminal history – good work history – where offender continues to deny offending – no evidence to suggest that any underlying mental health condition affected offender’s ability to understand terms of victim’s agreement to sexual activity – period of full-time imprisonment imposed – partial suspension.

The Supreme Court has sentenced an offender to a total term of imprisonment of 2 years and 6 months for an offence of sexual intercourse without consent. The offender engaged the victim to provide sexual services at a commercial brothel, and during the sexual activity, removed the condom (known as ‘stealthing’) without the victim’s knowledge, which negated the victim’s consent. The sentence will be suspended after 12 months on the condition that the offender comply with good behaviour obligations for the remainder of the total sentence.

Pastrello v Saeedi [2025] ACTCA 18

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – application to expedite hearing of appeal – interests of justice – where expediting appeal would displace hearing of already allocated appeal – application dismissed

DPP v Lock (a pseudonym) [2025] ACTSC 231 (SCC 117 of 2023; SCC 118 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – 32 counts – incest with a child under 10 – act of indecency with a child under 10 – incest with a child under 16 – act of indecency with a child under 16 – unlawful confinement – sexual assault in the third degree – offender older sibling of both victims – where offender subjected sisters to persistent sexual abuse for years –degrading and violent offending – where offender a young person for majority of offending – uncharged conduct occurring before offender’s 14th birthday – impact of autism spectrum disorder – s 34AA of the  Crimes (Sentencing) Act 2005 – observations regarding table of proposed sentences provided by prosecution – need for “robust articulation” of sentences proposed – recommendation for aggregate sentencing to be enacted in the ACT – overall term of imprisonment of 16 and a half years to be suspended after 10 years’ imprisonment

Higgins v Pretorius (No 3) [2025] ACTSC 243

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Costs – application for special costs order – where offer of compromise made by plaintiff and not accepted – where verdict sum was no less favourable to the plaintiff than offer of compromise – whether award for costs should be made otherwise than in accordance with r 1010(2)(a) of the Court Procedures Rules 2006 (ACT).

Higgins v Pretorius (No 2) [2025] ACTSC 242

CIVIL LAW – PRACTICE AND PROCEDURE – Application to stay operation of judgment pending resolution of the appeal – where applicant uninsured – applicant gave evidence that she cannot presently pay judgment sum – where applicant has not yet obtained financial advice about possible mechanisms to pay judgment sum – whether real risk of prejudice to applicant, were stay not granted – whether appeal raises serious issue for determination – parties provided proposed conditions of stay – conditions of stay ensure applicant cannot alter her financial position to the respondent’s detriment – consideration of balance of convenience between parties – stay granted

R v Foster (No 2) [2025] ACTSC 241 (SCC 291 of 2020; SCC 292 of 2020; SCC 64 of 2022; SCC 85 of 2022)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – burglary – theft – dishonestly obtain property by deception – offending occurred in 2020 – significant delay in finalisation of proceedings – offender has graduated and completed drug and alcohol treatment order in interim – significance of totality principle in sentencing exercise – fully suspended sentence imposed.

DPP v TI (a pseudonym) [2024] ACTSC 391 (SCC 205 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – burglary – attempted arson – offender seeks drug and alcohol treatment order – whether treatment order capable of addressing attitudinal factors and risk to community safety – treatment order not appropriate or suitable – term of imprisonment with nonparole period imposed.

Decision Restricted [2025] ACTSC 238

CRIMINAL LAW – EVIDENCE – pre-trial application – tendency evidence – evidence of sexual activity – ss 97 and 101 of the Evidence Act 2011 (ACT) – s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Loukas-Karlsson J’s chambers.  Associate.Loukas-KarlssonJ@courts.act.gov.au

WNA Construction Pty Ltd v Canberra Building and Maintenance Pty Ltd [2025] ACTCA 17

Judgment Summary

CIVIL LAW – APPEAL – payment claim under Building and Construction Industry (Security of Payment) Act 2009 (ACT) – whether payment claim was “given” to the appellant – where payment claim was sent to a new email address – where new email address had same domain name as previously used email addresses – where no evidence was adduced as to the email address not being a valid email address in circumstances where it would have been easy to do so – Jones v Dunkel inference made – whether payment claim was sufficiently specific – where specificity requirement is not overly demanding – where there was reasonable identification of the work that was performed – appeal dismissed.

The Court of Appeal has unanimously dismissed an appeal concerning the non-payment of a payment claim said to have been issued under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). In dismissing the appeal, the Court was satisfied that the respondent had “given” a valid payment claim to the appellant within the meaning of the Act, and that the payment claim was sufficiently specific to satisfy the requirements of the Act.

Molonglo Construction Group v Mehta [2025] ACTSC 235

CIVIL LAW – PRACTICE AND PROCEDURE – removal of proceedings to Supreme Court – application for proceedings to be consolidated or heard together – whether appropriate matters to consolidate.

DPP v Hiscox (No 2) [2025] ACTSC 230 (SCC 349 of 2024; SCC 350 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – common assault – reckless threat to kill – contravene s 3LA order by refusing to provide phone password – burglary of pound motivated by return of offender’s dog – assaults and threat against housemate – reduction in moral culpability with reference to offender’s background – drug and alcohol treatment order imposed.

DPP v Figura (No 2) [2025] ACTSC 233 (SCC 177 of 2024, SCC 178 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – review –  s 80ZE cancellation of drug and alcohol treatment order – suitable residential rehabilitation program not available – consideration of compliance with treatment order – consequences of noncompliance with a treatment order – imposition of sentence of imprisonment that was suspended – rehabilitation – engagement in Behind The Wheel course – nonparole period set.

QC v The Scout Association of Australia New South Wales Branch [2025] ACTSC 228

CIVIL LAW – pleadings – personal injury – application to strike out – historical sexual abuse – whether pleadings disclosed material facts sufficient for cause of action – distinction between particulars and material facts – nature of duty pleaded – risk of harm – foreseeability of harm – whether risk of harm was present or foreseeable at time of alleged abuse.

The Supreme Court has struck out a statement of claim alleging historical sexual assaults for failing to plead material facts to support the allegation that the risk was foreseeable.

The plaintiff sought damages for personal injuries arising from alleged sexual assaults by a Scout Leader. The plaintiff originally pleaded that the defendants owed him a non-delegable duty of care, but after an inquiry from the Court about the nature of the duty pleaded and apparent hurdle of alleging a non-delegable duty to protect him from the criminal act of another, the plaintiff simply deleted “non-delegable” from the pleading, confining his claim to direct negligence.

The Court accepted that the plaintiff did not plead the material facts required to support the allegation that the risk was foreseeable and struck out the statement of claim with leave to replead.

DPP v Saunders [2025] ACTSC 160 (SCC 321 of 2024, SCC 322 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – burglary – theft – fraud – dealing with proceeds of crime – offending driven by survival – previous noncompliance with court orders not necessarily indicative of behaviour on drug and alcohol treatment order – prospects of rehabilitation – primacy of long-term community protection in sentencing exercise – drug and alcohol treatment order imposed

Uploaded

30 May 2025

DPP v Majok [2024] ACTSC 342 (SCC 254 of 2023; SCC 215 of 2024; SCC 216 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission – aggravated burglary – aggravated robbery –theft – damaging property – some understanding of the negative impacts of offending – vulnerable state at time of the offending – intoxication by alcohol and drugs at the time of the offences does not reduce moral culpability

Uploaded

30 May 2025

DPP v Rigo [2025] ACTSC 220 (SCC 71 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency without consent – historical sex offences – pervasive impact on victim’s life – ‘otherwise’ good character of offender – hardship to family by incarceration – health of offender – burden by imprisonment – community based sentence order not reflective of gravity of offending – partially suspended sentence appropriate

Uploaded

29 May 2025

DPP v Lo [2025] ACTSC 218 (SCC 119 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – Intensive Corrections Order – consideration of rehabilitation – consideration of application of Bugmy and Verdins principles

The ACTSC has sentenced an offender for an offence of recklessly inflicting grievous bodily harm. The offender was involved in an altercation with a coworker at a restaurant. There was an issue of excessive self-defence. The offender received a sentence of 15 months imprisonment, to be served by way of Intensive Corrections Order.

Uploaded

29 May 2025

DPP v Swain (a pseudonym) (No 2) [2025] ACTSC 209 (SCC 313 of 2024; SCC 314 of 2024; SCC 318 of 2024; SCC 319 of 2024; SCC 33 of 2025)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pilot Circle Sentencing List – Elders and Respected Persons Panel – child offender – young person – aggravated robbery – drive motor vehicle without consent – drive motor vehicle near police – aggravated dangerous driving – profound childhood disadvantage – Bugmy principles applied – Verdins principles applied – assessment of maturity – conditional liberty – risk of institutionalisation – police conduct – extra-curial punishment – consideration of prospects of rehabilitation

Uploaded

29 May 2025

DPP v Fuller [2024] ACTSC 417 (SCC 249 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated robbery – drive motor vehicle without consent – offender expresses depth of remorse and insight – consideration of reparation order – focus on rehabilitation – legislative curiosity as to when treatment order imposed – drug and alcohol treatment order imposed

Uploaded

28 May 2025

McBride v The King [2025] ACTCA 16

Judgment Summary

APPEAL – CRIMINAL LAW – appeal against conviction – unlawfully communicate naval, military or air force information other than in the course of the appellant’s “official duty” contrary to s 73A(1) of the Defence Act 1903 (Cth) – publish confidential information other than in the course of the appellant’s “duty” contrary to s 70(1) of the Crimes Act 1914 (Cth) – theft – where the appellant was a member of the Australian Defence Force at the time of the offending – where the appellant pleaded guilty – whether a miscarriage of justice arose because the appellant’s guilty pleas were entered in consequence of a wrong decision of law – whether by way of the appellant’s oath of enlistment the appellant’s “duty” or “official duty” extended to acting in the “public interest”, even where in contravention of a lawful general order – whether the scope of the appellant’s duty may be defined by a lawful general order – no wrong decision of law – no miscarriage of justice – conviction appeal dismissed

APPEAL – CRIMINAL LAW – Crime and Punishment – Sentence – appeal against sentence – whether primary judge erred in failing to take into account the appellant’s motivation to remedy a perceived injustice when assessing the objective seriousness of the offending – where concern was with perceived over-investigation of alleged war crimes – whether appellant honestly believed offending conduct to be lawful – contribution of mental health condition to offending – Verdins principles considered – harm to the community – sufficient consideration of intensive correction order assessment report –sentence appeal dismissed

The Court of Appeal has unanimously dismissed an appeal against conviction for the theft, and unlawful communication and publication of confidential naval, military or air force information. The appellant was a member of the Australian Defence Force at the time of the offending. The appellant contended that “official duty” in the offence provisions refers to the duty arising from the oath taken on enlistment, which included a promise to “well and truly serve Our Sovereign” and this should be understood as a duty to advance the Australian public interest. The primary judge had refused to give this direction to the jury, and the appellant entered guilty pleas as a consequence. The Court of Appeal was satisfied that no error of law arose, and therefore dismissed the appeal. The appellant also advanced six grounds of appeal with respect to his sentence, all of which were dismissed.

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26 May 2025

Senatore v Andriolo (No 2) [2025] ACTSC 205

PRACTICE AND PROCEDURE – COSTS – Where offer of compromise made by defendant, not accepted and judgment no less favourable to defendant – whether offer of compromise involved a genuine offer of compromise

The Supreme Court has dismissed an application for a different costs order than the orders made following the hearing of the matter by Crowe AJ. The defendant has made an offer of compromise to the plaintiff, offering to pay $20,000 for the proceedings to be discontinued against them. The plaintiffs did not respond and the defendant sought a higher costs order than made by Crowe AJ.

The Court dismissed the defendant’s application for a higher costs order, finding that the offer to pay $20,000 to settle the proceedings when the defendants faced a minimum liability of $200,000 did not entail a genuine element of compromise. Rather, the offer was made in order to trigger the penalty of a higher costs order.

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26 May 2025

DPP v Hojlund [2024] ACTSC 88

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to adduce tendency evidence – where application not opposed – appropriateness of leaving directions to the jury for the determination of the trial judge

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to appoint witness intermediary – whether the complainant has a communication difficulty – young age of the complainant – circumstances of the offending – purpose of an intermediary – ameliorative effect of the legislation – requirement for the court to be comfortably satisfied of the existence of a communication difficulty

The Supreme Court has allowed two prosecution pre-trial applications. The first in relation to an application to adduce tendency evidence which was not opposed by defence counsel however, the Court determined that the directions to be given to the jury would be a matter for the trial judge. The second application was for the appointment of a witness intermediary for the complainant who was just over 18 years old at the time of the offending and provided medical evidence that she would likely dissociate while giving her evidence. The Court held that it was comfortably satisfied that the complainant had a communication difficulty and considering the broad ameliorative purpose of the legislation, appointed an intermediary.

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26 May 2025

Pretorius v Higgins [2025] ACTSC 216

CIVIL LAW – PRACTICE AND PROCEDURE – Application to set aside or permanently stay proceedings – where defendant to previous personal injury proceedings has brought claim alleging personal injury arising from same factual circumstances –  non-compliance with Pt 5.2 of Civil Law (Wrongs) Act 2002 (ACT) – whether defendant waived compliance – whether proceedings abuse of process – Anshun estoppel – whether plaintiff estopped from bringing further proceedings – claims sought to be raised previously litigated and determined – continuance of claim would represent abuse of process

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26 May 2025

Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon (No 2) [2025] ACTSC 217

CIVIL LAW – PRACTICE AND PROCEDURE – Costs – special costs order sought by Second to Sixth Defendants (Third Parties) against First Defendant – where Third Parties joined in proceedings by Third Party Notice – verdict entered for Third Parties against First Defendant – where misrepresentations made by First Defendant likely led to joining of Third Parties in the proceeding – two offers of compromise not accepted by First Defendant – unreasonable for First Defendant not to have accepted second offer of compromise where her evidence given the previous day absolved Third Parties of liability

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26 May 2025

Ware v DPP [2025] ACTCA 15

CRIMINAL LAW – Appeal against conviction – adequacy of primary judge’s directions to jury on consent – where no objection to directions at trial – reasonableness of an accused person’s belief as to consent – use of hypothetical example in directions to jury – application for leave to appeal under r 5531 of the Court Procedures Rules 2006 (ACT) is refused – appeal dismissed

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23 May 2025

DPP v Weldon (No 2) [2024] ACTSC 133

CRIMINAL LAW – TRIAL – Trial by judge alone – aggravated burglary – theft by way of joint commission – consideration of coincidence evidence – consideration of object identification evidence – where CCTV footage of varying quality – where evidence consists of strands in a cable – verdict of guilty on all counts

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23 May 2025

DPP v Hojlund (No 2) [2025] ACTSC 211 (SCC 202 of 2023; SCC 203 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – intimate observations or capture visual data – where offender drugged and sexually assaulted two unconscious victims on separate occasions – offender filmed offending conduct – history of homelessness, significant drug use and mental health challenges – separate harm to each victim recognised – terms of imprisonment imposed

The Supreme Court has sentenced an offender for charges of sexual intercourse without consent and intimate observations or capture visual data. The Court imposed a term of imprisonment of nine years, three months and 11 days with a non-parole period of six years.

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23 May 2025

Francis (a pseudonym) v Commonwealth (No 3) [2023] ACTSC 382

CIVIL PRACTICE AND PROCEDURE – SUBPOENAS – Application for access to documents that contain protected confidences – documents produced in response to subpoena – no material of significance where public interest in preserving the confidentiality of protected confidences would tend against disclosure – documents will be of significance in proper assessment of plaintiff’s claim – access granted

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23 May 2025

Francis (a pseudonym) v Commonwealth (No 2) [2023] ACTSC 276

CIVIL PRACTICE AND PROCEDURE – SUBPOENAS – Application for access to documents that contain protected confidences – documents produced in response to subpoenas – consideration of s 79H Evidence (Miscellaneous Provisions) Act 1991 (ACT) – plaintiff does not oppose disclosure – public interest in disclosure outweighs public interest in preserving the confidentiality of the protected confidences – access granted

CIVIL PRACTICE AND PROCEDURE – SUBPOENAS – Application for leave to issue subpoena for production of documents that contain protected confidences – documents sought fall within the scope of the defendant’s application in proceeding – legitimate forensic purpose in seeking leave – leave granted

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23 May 2025

DPP v McColl [2025] ACTSC 214 (SCC 70 of 2023; SCC 124 of 2025)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary – damage property – aggravated dangerous driving – offending while on drug and alcohol treatment order – no legislated consequence – egregious breach of conditional liberty – aggravating factor on sentence – time in custody – reform from substance dependency – rehabilitation achieved – promotion of rehabilitation in sentencing exercise – suspended term of imprisonment imposed

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22 May 2025

DPP v Jember (No 2) [2025] ACTSC 213 (SCC 74 of 2024; SCC 75 of 2024; SCC 108 of 2024; SCC 109 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – s 80ZE cancellation of a drug and alcohol treatment order – unlikely to comply with a condition of a treatment order – likelihood of achieving objects of order – imposition or resentence – low level of compliance with treatment order – aid and abet burglary – drug trafficking – driving while disqualified – sentence of imprisonment imposed – nonparole period imposed

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22 May 2025

Francis (a pseudonym) v Commonwealth of Australia (No 5) [2024] ACTSC 195

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where proceedings resolved on terms requiring the Commonwealth to pay disputed portion of judgment sum into court and balance to plaintiff – where Commonwealth later formed the view that the amount agreed to be paid into court was inadequate to disputed sum consent orders – where defendant seeks a partial stay of consent order – where defendant has discharged its liability under the consent judgment but is inadequate to cover newly calculated liability – where defendant was under an obligation pay interest on the judgment debt – interpretation of consent orders

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22 May 2025

Francis (a pseudonym) v Commonwealth (No 4) [2024] ACTSC 145

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where consent orders filed following settlement of claim contemplate determination of separate question by the court – where defendant disputes the formulation of the separate question – question concerning proper interpretation of s 30K of the Veterans’ Entitlement Act 1986 (Cth) – desirability of formulating the separate question in the language of the statute

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22 May 2025

DPP v Shasha [2024] ACTSC 213

EVIDENCE LAW – TENDENCY EVIDENCE – Criminal proceedings – alleged tendency of accused to have a sexual interest in the complainant (a child) and to act upon that interest – single complainant – where prosecution relied on “otherwise benign” acts to support charge of grooming – whether benign acts capable of proving tendency to have sexual interest in the complainant – consideration of nature of tendency reasoning – consideration of appropriate form of rulings to be sought in tendency applications

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22 May 2025

Decision Restricted 2025] ACTSC 172

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – sexual intercourse without consent – young person – multiple victims – lack of remorse – moral culpability of young person committing sexual offence – delay and rehabilitation – can an offender be convicted without further punishment – where not appropriate to impose punishment above conviction – exclusion from child sex offender register

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Berman AJ’s chambers.  associate.actingj@courts.act.gov.au

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22 May 2025

Decision Restricted [2025] ACTSC 100

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-sentence report not prepared in compliance with legislation – parties request for the attendance of appropriate government officers at listing – order based on clear and unmistakable requirement in statute ignored – undertaking made to prepare or arrange for the preparation of a pre-sentence report

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Berman AJ’s chambers.  associate.actingj@courts.act.gov.au

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22 May 2025

Decision Restricted [2025] ACTSC 13

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-sentence report not prepared in compliance with legislation – application for an adjournment of sentence proceedings until after appeal is heard – sentence to follow a verdict

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Berman AJ’s chambers.  associate.actingj@courts.act.gov.au

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21 May 2025

DPP v Jones (a pseudonym) [2025] ACTSC 140 (SCC 225 of 2023; SCC 226 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with person under 16 years – act of indecency – threat to kill – possess offensive weapon with intent – offending aggravated by family violence – offender a young person at time of offending – Bugmy, Verdins and Henry principles enlivened  – where young person demonstrated progress and growth whilst in custody – terms of imprisonment imposed – benefit of youth detention custodial environment – partially suspended sentence – inappropriate to place young person on sex offender list

The Supreme Court has sentenced an offender to a total term of imprisonment of 6 years and 9 months for offences of aggravated sexual intercourse with a person under 16 years, aggravated act of indecency on a person under 16 years, and aggravated threat to kill. The Court considered the seriousness of the offences, impact on the victim, and the subjective circumstances of the offender, who was aged 17 years at the time of the offending, in assessing the sentence to be imposed. The Court gave weight to the young person’s reduced moral culpability, with reference to their childhood of disadvantage and neglect, early exposure to substances and substance abuse, and cognitive and developmental difficulties. Further, the Court considered the sentencing purposes provided in chapter 8 of the Crimes (Sentencing) Act 2005 (ACT) regarding young offenders. The sentence is to be suspended after 3 years.

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21 May 2025

DPP v Brown (No 2) [2024] ACTSC 226

CRIMINAL LAW – EVIDENCE – Witness intermediaries – directions for the conduct of examination of witness prophylactic rather than remedial – recommendations adopted notwithstanding submissions by counsel for the accused

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20 May 2025

House v ACT (No 2) [2025] ACTSC 207

HUMAN RIGHTS – EXTENSION OF TIME – Previous dismissal of application for extension of time because of inadequate pleadings – where pleadings amended to address inadequacies – where first defendant now does not oppose an extension of time – extension of time in general terms granted in the circumstances

The Supreme Court has granted an extension of time in general terms to the plaintiff pursuant to s 40C of the Human Rights Act. There was a dismissal of a previous application due to inadequate pleadings. The pleadings were then amended to address those inadequacies, a new application filed, and the first defendant did not oppose the new application.

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20 May 2025

DPP v Baudinette (No 2) [2025] ACTSC 208

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – rehabilitation achieved – object of order achieved –grandson – horticulture – graduation from treatment and supervision part of treatment order – order confirmed

The Supreme Court has graduated a participant from the treatment and supervision part of his drug and alcohol treatment order, moving him to the good behaviour portion of the order. The Court commended the participant for his growth, having shown accountability and commitment to changing the trajectory of his life. The Court further reflected on remarkable achievement of the participant to achieve and maintain sobriety, noting the early age he commenced using substances, breaking the cycle of his past. The participant will now be subject to a good behaviour order for a period of some 3 months.

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20 May 2025

DPP v Baker (a pseudonym) [2025] ACTSC 196 (SCC 261 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender pleaded guilty to two counts of culpable driving causing death – where offender is 15 years old, 14 at time of offending – consideration of ss 64(2) and 133G of the Crimes (Sentencing) Act – consideration of disadvantaged background and prospects of rehabilitation against denunciation, recognition of harm done to victims and general deterrence – sentenced to five years and three months’ imprisonment, to be suspended after two years

The Supreme Court has sentenced an offender to five years and three months’ imprisonment, to be suspended after two years.

The offender drove culpably causing the death of two victims. He is 15 years old and was 14 at the time of the offending. Consideration was given by the court to ss 64(2), 133G of the Crimes (Sentencing) Act, the offender’s disadvantaged background and rehabilitation prospects as well as recognition of harm to victims and general deterrence.

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19 May 2025

DPP v Lock [2025] ACTSC 204 (SCC 326 of 2024; SCC 327 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary – theft – property damage – entry to and drive motor vehicle without consent – application of Bugmy principles to non-Aboriginal offender – assessed as suitable for drug and alcohol treatment order – duration of treatment and supervision part of treatment order – no legislated period – treatment order suitable and appropriate – treatment order imposed

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19 May 2025

DPP v Loughton (No 2) [2025] ACTSC 179 (SCC 255 of 2023; SCC 256 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – where offender convicted of incest, acts of indecency, and common assault – where victim under the age of 16 at the time of offending – offending in the low-to-mid ranges of objective seriousness – offender has pro social companions and family support, but continues to deny offending – good behaviour and intensive correction orders imposed

The Supreme Court has sentenced this offender to 14 months’ imprisonment, to be served by intensive correction, and imposed good behaviour orders. The offender had been convicted of incest, acts of indecency, and common assault. The victim was under the age of 16 at the time of offending. The Supreme Court characterised the offending in question as being in the low-to-mid ranges of objective seriousness for offences of these types. The Supreme Court also noted that the offender has pro‑social companions and family support, but continues to deny offending.

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16 May 2025

DPP v Hampson [2024] ACTSC 396 (SCC 252 of 2024; SCC 253 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – property offences –Bugmy, Henry, Verdins principles – childhood of profound disadvantage – significant motivation to rehabilitate – offending in ACT to obtain rehabilitative support through sentence order – community protection and rehabilitation – availability of secure housing – remorse – pragmatism in sentencing – restorative justice referral – drug and alcohol treatment order imposed

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16 May 2025

Mason-Leonarder v Balfran Removals Pty Ltd [2025] ACTSC 191

CIVIL LAW – ex parte application for leave to withhold disclosure of surveillance footage and reports from plaintiff until after the plaintiff’s evidence pursuant to r 6704 of the Court Procedures Rules 2006 (ACT) – plaintiff claiming substantial damages following work injury – extent of plaintiff’s injury – footage and reports relevant to testing plaintiff’s evidence and credibility – application granted

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16 May 2025

DPP v Garcia (a pseudonym) (No 4) [2025] ACTSC 190 (SCC 111 of 2023; SCC 345 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency against a child under 10 in the back of child’s family car whilst family present – act of indecency against child under 10 in child’s family home – act of indecency against another person in her bed while a guest in her home, whilst she appeared asleep, with her partner and a child present but sleeping – offences in the mid-range of seriousness – offender assessed as suitable for intensive correction order with reasonable prospects of rehabilitation – period of full-time imprisonment necessary to properly denounce and deter the conduct, and recognise the harm done to the victims

The Supreme Court has sentenced this offender to 25 months’ imprisonment for two counts of an act of indecency on a person under the age of 10 (one in the back of child’s family car with the child’s family present, one in the child’s family home) and an act of indecency on another person (in the victim’s bed while a guest in her home, whilst she appeared asleep, with her partner and a child also present but sleeping). The Supreme Court found offences to be in the mid-range of seriousness, and that offender had reasonable prospects of rehabilitation.

The Supreme Court also noted that sexual offending directed to young children and adult females by adult males is appropriately a matter of concern in the community and must be denounced and deterred.

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16 May 2025

DPP v Smith (No 5) [2025] ACTSC 188 (SCC 106 of 2023; SCC 107 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender convicted by jury of sexual intercourse without consent and act of indecency without consent – offending occurred against the same victim, living with her while she was 34 weeks pregnant – where offender has significant criminal history – where offender has substance use disorder, antisocial traits and a schizophrenia-related condition – sentenced to three years and three months’ imprisonment

The Supreme Court has sentenced an offender to three years and three months’ imprisonment. The offender was convicted by a jury of sexual intercourse without consent and an act of indecency without consent against the same victim. The offender lived with the victim while she was 34 weeks pregnant. The offender had significant criminal history, substance use disorder, antisocial traits and a schizophrenia-related condition.

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16 May 2025

Thompson v Steele [2025] ACTSC 187

APPEAL – APPEAL FROM ACT MAGISTRATES COURT – Traffic offences – two charges of drive with prescribed drug in oral fluid – appeal against length of disqualification period – appeal on ground that magistrate used ‘default’ period of disqualification as a starting point for sentence rather than a process of instinctive synthesis – magistrate balanced considerations of protection of the community with the offender’s subjective circumstances – magistrate did undertake instinctive synthesis – appeal dismissed

The Supreme Court has dismissed an appeal from a magistrate. The appellant was convicted of two charges of drive with prescribed drug in oral fluid. The appeal was against the length of the disqualification period imposed on the ground that magistrate used ‘default’ period as the starting point rather than a process of instinctive synthesis. The court found that the magistrate did undertake instinctive synthesis, and hence, the appeal was dismissed.

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15 May 2025

DPP v Morton [2024] ACTSC 98

CRIMINAL LAW – EVIDENCE – Tendency and coincidence evidence – 328 charges of dishonestly obtaining property by deception by director of a childcare centre – trial to be by judge alone – whether evidence on charges should be cross admissible for identified tendency and coincidence purposes – it should – turns on own facts

The Supreme Court has allowed a prosecution application to lead tendency and coincidence evidence against an accused.

The case against the accused involved 328 charges of obtaining property by deception relating to bank transfers and purchases made using a company credit card. The prosecution sought to rely upon the evidence led to support each charge to establish two tendencies on the part of the accused. The application also sought to allow the use of the evidence as coincidence evidence.

The court applied ss 97, 98 and 101 of the Evidence Act and ruled that the evidence, or part of it, was admissible for tendency and coincidence purposes.

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15 May 2025

DPP v Weldon (No 3) [2025] ACTSC 189 (SCC 70 of 2021)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST– Judgment and Punishment – Sentence – breach by further offending during good behaviour order component of drug and alcohol treatment order – order has since concluded – s 110 Crimes (Sentence Administration) Act not of application – committal by Magistrates Court for breach proceeding prior to sentence proceeding in Magistrates Court – Magistrates Court sentence to take into account all relevant considerations – appropriate to take no further action with respect to the breach

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15 May 2025

DPP v Booth [2024] ACTSC 368 (SCC 200 of 2024; SCC 201 of 2024)

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14 May 2025

DPP v Landon [2025] ACTSC 200 (SCC 82 of 2024; SCC 83 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft of vehicle keys – aid and abet theft of vehicle – offending motivated by spite – critical role – deterrence – intensive correction not required – suspended term of imprisonment imposed

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14 May 2025

Reljic v Reljic [2025] ACTSC 198

PROPERTY – sale of real property and consequential orders pursuant to Civil Law (Property) Act 2006 (ACT), s 244 – sale by consent

COSTS – application by plaintiffs for defendant to pay the costs of the proceeding – where consent orders agreed shortly before hearing of previously contested application – whether each party acted reasonably – whether legal costs should be paid from the proceeds of sale

The Supreme Court has made orders by consent providing for the sale of a residential property on conditions.  The parties were co-owners of a residential lease.  They reached agreement on the substantial issue in dispute but sought different orders in respect of the costs of the proceeding.  The Court found that each party acted reasonably and ordered that the costs of the proceeding be paid out of the proceeds of sale prior to distribution as the costs were an incident of joint ownership.

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14 May 2025

DPP v Mortimer [2025] ACTSC 168 (SCC 222 of 2023; SCC 223 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – persistent sexual abuse of a child – using a child for production of child exploitation material – aggravated common assault – 13 year old victim – [redacted] – youthful offender principles – consideration of Bugmy and Verdins principles – where offender has significant mental health difficulties and history of multiple cancer diagnoses – effect of custodial environment – likelihood of reoffending – intensive correction order not appropriate – fulltime partially suspended sentence

The Supreme Court has sentenced a 20 year old offender to a total period of imprisonment of 4 years and 2 months for offences of persistent sexual abuse of a child, using a child for production of child exploitation material, and aggravated common assault. The Court considered the impact on the victim, community protection, rehabilitation, the offender’s traumatic childhood and his health conditions, and the youthful offender principles in assessing the appropriate sentence to be imposed. The sentence is to suspended after 18 months upon the offender entering an undertaking to comply with good behaviour obligations until the conclusion of the total sentence.

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13 May 2025

Decision Restricted [2025] ACTSC 186

CRIMINAL LAW – Evidence – Judicial Discretion to Admit or Exclude Evidence – DNA Evidence – s 137 Evidence Act 2011 (ACT) – balancing probative value against danger of unfair prejudice – CSI effect – a number of items of evidence ruled admissible – a number of items of evidence ruled inadmissible –– real risk of DNA transference or contamination – review of extensive body worn camera footage

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Loukas-Karlsson J's chambers.  Associate.Loukas-KarlssonJ@courts.act.gov.au

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13 May 2025

DPP v Little (a pseudonym) [2024] ACTSC 351

CRIMINAL LAW – EVIDENCE – Application to adduce evidence of prior sexual activity – where nature of earlier relationship is of substantial relevance to facts in issue – where admitting evidence will prevent assessment of alleged offending conduct in an artificial vacuum – leave granted

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12 May 2025

DPP v Nicholls (a pseudonym) [2025] ACTSC 194 (SCC 73 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – motivation to destroy evidence – strong subjective case – demonstrated remorse – application of Bugmy principles – reduction in moral culpability – assessment of prospects of rehabilitation – imposition of partially suspended sentence – recommendation to engage with First Nations service providers

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12 May 2025

DPP v Flynn [2025] ACTSC 23 (SCC 205 of 2023; SCC 221 of 2023)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary offences – targeting of licensed club venues – whether drug and alcohol treatment order appropriate and suitable – previous non-compliance with community based orders – application of Bugmy, Verdins, Henry principles – offender demonstrates a depth of remorse and insight to the impacts of offending – drug and alcohol treatment order imposed

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12 May 2025

DPP v Hodge [2025] ACTSC 82 (SCC 254 of 2024; SCC 255 of 2024; SCC 298 of 2024; SCC 299 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – burglary – firearms stolen  –  property damage  – driving offences – drug and alcohol treatment order sought – reduction for plea of guilty – established facts – not overwhelmingly strong case – significant criminal history limiting leniency – Bugmy and Henry principles –  significant insight and remorse – complex therapeutic needs – treatment order not suitable or appropriate – deferred sentence order not appropriate – term of fulltime imprisonment with parole imposed

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12 May 2025

DPP v Rohrlach (No 2) [2025] ACTSC 192 (SCC 275 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order while offender serving suspended sentence – where breach was at low end of seriousness and substantial period of time had passed without incident – where offender had taken rehabilitative steps in the meantime – offender resentenced

The Sup Ct has resentenced an offender following a breach of a good behaviour order.  The initial offences involved choking offences for which a total sentence of imprisonment of just over 8 months was imposed which, after taking into account time spent in custody, was fully suspended. The breach involved an offence of a failure to stop for police (resulting in a fine) and occurred after just over 6 months of the GBO had passed. The court considered that the imposition of the sentence of imprisonment would be disproportionate in the circumstances.  Given the rehabilitative steps taken by the offender, the court determined to impose a sentence of the same duration, again fully suspended.

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9 May 2025

DPP v Payne [2024] ACTSC 306 (SCC 157 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – act of endangering life by intentionally and unlawfully discharging a loaded arm – factual dispute as to knowledge of infant in the vehicle – seriousness of discharge of firearm in suburban location – offensive motive – inferences as to effect on victims – plea of guilty at hearing in Magistrates Court – consideration of likelihood of compliance with drug and alcohol treatment order – primacy of rehabilitation in sentencing exercise – notion of remorse – rehabilitation surest guarantor of community protection – treatment order imposed

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9 May 2025

Kennedy v Qantas Ground Services Pty Ltd (No 6) [2025] ACTSC 182

PRACTICE AND PROCEDURE – DIRECTIONS – Where plaintiff communicated that, due to being self-represented, he would be unable to comply with court orders pertaining to filing expert evidence – plaintiff did not wish to breach court order – where defendants wished to retain timetable that progressed matter towards a hearing – direction made accommodating for both considerations

The Supreme Court has varied prior orders. Plaintiff communicated that due to being self-represented, he would be unable to comply with order pertaining to filing expert evidence and did not want to breach a court order. The defendants wished to retain a timetable that progressed the matter toward a hearing. Order made accommodating both considerations.

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9 May 2025

DPP v Smith (No 4) [2024] ACTSC 301

CRIMINAL LAW – EVIDENCE – Pre-trial application – sexual offence proceedings – counsel for the accused sought to cross-examine complainant in relation to sexual activities – whether leave granted under s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT)

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9 May 2025

DPP v Smith (No 3) [2024] ACTSC 300

CRIMINAL LAW – EVIDENCE – Relationship evidence – context evidence – Pre-trial application

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9 May 2025

DPP v Smith (No 2) [2024] ACTSC 95

CRIMINAL LAW – EVIDENCE – Tendency Evidence – Pre-trial Application – Application by prosecution to adduce tendency evidence – evidence suggesting a tendency to commit acts of family violence upon his domestic partner generally – application dismissed

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8 May 2025

DPP v Shasha (No 2) [2025] ACTSC 86 (SCC 194 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – determining the circumstances of offending – objective seriousness of each charge – findings of fact must be consistent with the verdicts returned by the jury – scale of penalties available – convictions recorded – offender’s honest belief the victim was 16 years old inadequately formulated – present case falls well outside the usual case of child sexual offending

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7 May 2025

B v Missionaries of the Sacred Heart [2025] ACTSC 144

PRACTICE AND PROCEDURE – CROSS-VESTING – Application by plaintiff to cross vest personal injury proceedings for child sexual abuse to Victorian Supreme Court – where two other matters involving same priest in Victoria – where a change in law in Victoria possible – where proceedings, if transferred, may be heard by jury – it is in the interests of justice that tendency witnesses alleging sexual assaults give evidence only once – proceedings transferred

The Supreme Court has granted an application by the plaintiff to transfer his personal injury proceedings for child sexual abuse to the Victorian Supreme Court, where two other matters involving the same priest are on foot. A change in law in Victoria is possible. Further, the proceedings, if transferred, may be heard by jury.

The Supreme Court observed that it is in the interests of justice that tendency witnesses alleging sexual assaults give evidence only once. The proceedings were transferred.

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7 May 2025

Ruspandini v Summernats Pty Ltd (No 2) [2025] ACTSC 171

CIVIL PROCEDURE – PRACTICE AND PROCEDURE – claim for damages for personal injury – application of Civil Law (Wrongs) Act 2002

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6 May 2025

DPP v Martin (a pseudonym) (No 2) [2025] ACTSC 181 (SCC 334 of 2024; SCC 335 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Assault Occasioning Actual Bodily Harm – Contravention of Family Violence Order – seriousness of offences – consideration of discount for guilty plea in family violence circumstances

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5 May 2025

DPP v Kaye (a pseudonym) [2025] ACTSC 169 (SCC 315 of 2024;  SCC 316 of 2024;  SCC 41 of 2025; SCC 42 of 2025)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – child offender – young person – aggravated robbery – co-offender – make demand accompanied by threat – ride/drive motor vehicle without consent – aggravated burglary – assessment of maturity – application of Bugmy principles – assessment of prospects of rehabilitation – promotion of rehabilitative prospects – imposition of partially and fully suspended sentences

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5 May 2025

DPP v Kay [2024] ACTSC 284 (SCC 14 of 2024; SCC 15 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – unauthorised manufacture of firearms – disposal of unregistered firearm – unauthorised possession or use of firearm – grave seriousness of 3D printed functional firearms – assessment of objective seriousness of firearm offending – risk to individuals and community – non-prohibited form does not significantly reduce seriousness – sophistication and planning – general deterrence – protection of community – whether drug and alcohol treatment order appropriate and suitable – minimal criminal history – non-linear nature of rehabilitation from drug dependency – drug dependency substantially contributed to offending – drug and alcohol treatment order imposed

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2 May 2025

Cook-Bateman v Adham [2025] ACTSC 173

CIVIL LAW – application for the plaintiff to receive authorisation to proceed further with claim despite non-compliance pursuant to section 59(1)(c) of the Civil Law (Wrongs) Act 2002 (ACT) – application for leave to be given nunc pro tunc to begin proceedings for damages pursuant to section 79 of the Civil Law (Wrongs) Act 2002 – alleged medical negligence –  whether the granting of the authorisation would be futile – reasons for delay – length of delay – degree of prejudice to the parties – uncertain operation of automatic stay – applications granted – proceedings stayed for 6 months

The Supreme Court has authorised the plaintiff to proceed further with her medical negligence claim notwithstanding her failure to give a complying notice of claim, and granted her leave nunc pro tunc to begin the proceedings notwithstanding non-compliance with the requirements of Ch 5 of the Civil Law (Wrongs) Act 2002, invoking ss 59 and 79 respectively.

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2 May 2025

Fuller v ACT (No 2) [2025] ACTSC 174

TORT – NEGLIGENCE – Damages – medical negligence – broken needle lodged in or near spine in preparation for caesarean section – plaintiff sustained radiculopathy and other related harm – general damages awarded – damages awarded for some loss of earning capacity – damages also awarded for domestic assistance and other out of pocket expenses – damages for use of sick leave not awarded, but leave given for further submissions to be made on that issue

The Supreme Court has awarded almost $200,000 in damages to a mother who had a broken needle lodged in or near her spine during a caesarean section due to medical negligence. The incident caused radiculopathy and other related harm. The Supreme Court’s quantification of damages included damages for loss of earning capacity, for domestic assistance, and for other out of pocket expenses.

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2 May 2025

DPP v Jember [2024] ACTSC 311 (SCC 74 of 2024; SCC 75 of 2024; SCC108 of 2024; SCC109 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aid and abet burglary – trafficking controlled drug – driving disqualified – moral culpability reduced with reference to childhood disadvantage – whether drug and alcohol treatment order appropriate and suitable – suitability of drug trafficking offender for treatment order – potential risk to recovery of other participants – trust in participants to identify problematic behaviours – charge involving trafficable quantity however intended for personal use – purpose of a treatment order – offender suitable – drug and alcohol treatment order imposed

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2 May 2025

DPP v Winters [2024] ACTSC 293 (SCC 327 of 2022; SCC 60 of 2023; SCC 303 of 2023)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – knowingly concerned in burglary by joint commission – aggravated burglary – theft by joint commission – damage property by joint commission – offences committed while on drug and alcohol treatment order – treatment order cancelled on earlier occasion – whether to resentence or impose sentence – offending occurred within one month of imposition of treatment order – prospects of rehabilitation – substantial non-compliance with treatment order – imposition of balance of the term of imprisonment – Bugmy principles – early substance use – connection to culture – strong motivation to rehabilitate – period of imprisonment imposed with respect to new offending – rehabilitation through parole

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1 May 2025

DPP v Hope (No 3); DPP v Hope [2024] ACTSC 261 (SCC 195 of 2023; SCC 195 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – imposition or resentence following s 80ZE cancellation of a drug and alcohol treatment order – breaches of treatment order – no compliance with treatment order – further offending – sentence of imprisonment imposed

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1 May 2025

Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 5) [2025] ACTSC 165

CONSUMER LAW – CIVIL PENALTY PROVISIONS – Pecuniary penalties sought for misleading representations pursuant to s 224, sch 2 Competition and Consumer Act 2010 (Cth) (the ACL) – consideration of totality of contraventions –  course of conduct – where evidence did not allow for quantification of particular benefit derived or loss suffered from relevant conduct – on balance of probabilities some loss occasioned to purchasers – conduct of directors was cavalier, disdainful, contemptuous and scornful of consumers – apportionment of penalty between defendants – where relationship of principal and agent – instinctive synthetical approach applied to determination of appropriate penalty – declaratory relief granted

CONSUMER LAW – ADVERSE PUBLICITY ORDER – s 247 of the ACL – purpose of corrective advertising is to deter contravening conduct, protect public and inform consumers – to achieve protective and deterrent purpose, notices to include the brand names utilised in the marketing – corrective notices to be published in Canberra Times for a period of 7 consecutive days – corrective letters to be sent to original purchasers

PRACTICE AND PROCEDURE – COSTS – Plaintiff wholly successful against fourth and fifth defendants but unsuccessful on second tier agency case against first to third defendants – plaintiff sought costs against fourth and fifth defendants and majority of costs against first to third defendants – first to third defendants sought their costs against plaintiff – where all defendants played active role in substantive issues in proceedings – where second tier agency case capable of separation from balance of matters in issue – where first to third defendants were beneficiaries of contraventions engaged in by fourth and fifth defendants – fourth and fifth defendants to pay plaintiff’s costs – proportionate costs order against first to third defendants

The Supreme Court has imposed pecuniary penalties in the sum of $3,225,000 each against GZ Developments Pty Ltd and GRE Sales Pty Ltd respectively following adverse findings made by the Court against them in Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315. The Court in that decision held that representations made during the advertising process for a residential apartment development in Woden Town Centre were misleading, deceptive or false. The Court also granted the Commissioner declaratory relief, ordered the publication of corrective notices in the Canberra Times and the issuing of corrective letters to original purchasers of units in the development.

The Court ordered GZ Developments Pty Ltd and GRE Sales Pty Ltd pay the Commissioner’s costs, and Bowes Street Developments Pty Ltd, Geocon Bowes Street JV Pty Ltd, and Zapari Property Bowes Street Pty Ltd pay ninety percent of the Commissioner’s costs because, although they succeeded on one point, they had been unsuccessful on all the other issues which they contested. The Commissioner was ordered to pay ten percent of Bowes Street Developments Pty Ltd, Geocon Bowes Street JV Pty Ltd, and Zapari Property Bowes Street Pty Ltd’s costs in relation to the one issue on which they succeeded.

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1 May 2025

R v Slattery (No 3); DPP v Slattery [2025] ACTSC 125 (SCC 100 of 2023; SCC 101 of 2023; SCC 184 of 2023; SCC 185 of 2023; SCC 207 of 2023; SCC 339 of 2023; SCC 340 of 2023; SCC 55 of 2025)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – property offences – driving offences – using a carriage service with threat to cause serious harm – family violence – offender previously successfully completed treatment and supervision part of drug and alcohol treatment order – breach of good behaviour component – whether treatment order suitable and appropriate – Bugmy and Henry principles – sentenced to drug and alcohol treatment order – statutory interpretation – Crimes (Sentencing) Act 2005 (ACT) – lacuna and ambiguity in drug and alcohol sentencing legislation – whether good behaviour order part of drug and alcohol treatment order – diagrammatical representation of a treatment order – whether court has power to deal with breaches of good behaviour order portion of treatment order after expiration – s 80ZD does not apply – conferral of power in s 107 Crimes (Sentence Administration) Act 2005 (ACT)

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29 April 2025

Van Duren v ACT [2025] ACTSC 149

PRACTICE AND PROCEDURE – WANT OF PROSECUTION – Non appearance by plaintiff and failure to adhere to procedural orders of the court – whether pleadings inadequate in circumstances of a non-routine claim of personal injury – effect of pleadings on deciding upon want of prosecution – whether plaintiff affected by medical condition impacting ability to effectively prosecute proceedings – pleadings inadequate and medical conditions of plaintiff interfering ability to prosecute – proceedings dismissed

The Supreme Court has dismissed proceedings for want of prosecution. The plaintiff failed to adhere to procedural orders of the court and did not appear at hearings. The plaintiff’s pleadings were inadequate in the circumstances of a non-routine claim of personal injury, which affected the court’s decision upon whether there was a want of prosecution. The plaintiff also had some evidence of being impacted by medical conditions, which the court considered in deciding to dismiss proceedings.

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24 April 2025

Rees-Wlodek v Calvary Healthcare ACT Limited [2025] ACTSC 162

CIVIL LAW – PRACTICE AND PROCEDURE – claim for damages for medical negligence – application of Civil Law (Wrongs) Act 2002

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24 April 2025

Omran v AAI Ltd [2025] ACTSC 150

PRACTICE AND PROCEDURE – DISCOVERY – Where discovery initially not provided due to unintentional oversight – where further discovery sought to enable plaintiff to potentially join additional defendant and expand claim – where application would require vacation of hearing date – purpose of discovery is not to disclose possible causes of action against third parties – additional claim ought to have been apparent from commencement of proceedings – vacation of set hearing dates not appropriate – application dismissed

The Supreme Court has dismissed an application for further and better discovery, and for the vacation of set a hearing date. Discovery had initially not been provided due to an unintentional oversight by the defendants. However, the plaintiff also sought further discovery to potentially join an additional defendant and expand its claim. Granting the application would require the vacation of the hearing date.

The Supreme Court, in dismissing the application with costs, noted that the purpose of discovery is not to disclose possible causes of action against third parties, and that vacating set hearing dates is an unpalatable course of action for the court.

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23 April 2025

DPP v Miller (a pseudonym) (No 2) [2025] ACTSC 88 (SCC 109 of 2023)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – cancellation of drug and alcohol treatment order – imposition or resentence – likelihood of achieving objects of order – where participant remains committed to rehabilitation but is unlikely to meet objects – cancellation unlikely to be impediment to rehabilitation – treatment order cancelled – positive prosects of rehabilitation – non-linear nature of rehabilitation – resentence – aggravated choke, strangle, suffocate – aggravated assault occasioning actual bodily harm – partially suspended sentence imposed

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23 April 2025

R v Donnelly (No 2) [2025] ACTSC 157 (SCC 173 of 2020; SCC 174 of 2020)

CRIMINAL LAW – DRUG AND  ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – imposition or resentence following s 80ZE cancellation of a drug and alcohol treatment order – breaches of treatment order – variety of ways to reflect totality principle – totality informative as to setting of nonparole period – substantial period spend in custody in NSW – statutory interpretation – s 80ZJ warrant issued while treatment order still active – treatment order extant while warrant remains unexecuted –  power to deal with an offender following expiration of treatment order – offender resentenced

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22 April 2025

DPP v Dhamala [2025] ACTSC 142 (SCC 110 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts of acts of indecency without consent – employment relationship between offender and victim where offender was more senior – offender and victim spoke same language other than English and offender had superior grasp of English – lack of consent unequivocal – remorse expressed – educational experience and family support – good prospects of rehabilitation – intensive correction order with community service imposed

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22 April 2025

Re Mortimer: referral under r 6142 [2025] ACTSC 158

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions pursuant to Court Procedures Rules 2006 (ACT), r 6142 – document filed by non-party without application for joinder, sought final relief via application in proceeding and sought relief that the court had no power to make – direction made to reject document

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17 April 2025

Manny v Commonwealth of Australia (No 2) [2025] ACTSC 146

PRACTICE & PROCEDURE – INTERLOCUTORY APPLICATION – strike out and summary dismissal – competing application for summary judgment – whether proceedings constitute abuse of process – whether proceedings disclose reasonable cause of action – where claims sought to be raised previously litigated and determined – where allegations made against non-parties – where no arguable claim otherwise able to be discerned – summary dismissal ordered

Manny v Australian Postal Corporation [2025] ACTSC 148

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – summary judgment – summary dismissal – where no cause of action disclosed – whether proceedings constitute abuse of process – where claims sought to be raised previously litigated and determined – where defendant also relies on statutory immunity – summary dismissal ordered

Manny v University of Canberra (No 2) [2025] ACTSC 147

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – summary judgment – summary dismissal – whether defendant has a good defence on the merits – whether arguable cause of action raised – where no arguable basis for any claim – summary dismissal ordered

Manny v ACT [2025] ACTSC 151

PRACTICE & PROCEDURE – STRIKE-OUT – whether proceedings disclose reasonable cause of action – leave granted to replead on conditions

The Supreme Court has delivered four judgments dealing with 14 proceedings where parties were seeking summary relief against each other.  The plaintiff in each proceeding raised similar allegations against different defendants, ranging across negligence, breach of statutory duty, fraud, misleading and deceptive conduct, racial discrimination and breach of the plaintiff’s human rights.  Some of the claims propounded were found to be an abuse of process.  However, the Court determined that leave should be granted to replead four proceedings, subject to conditions, as the defendant in those proceedings (the Australian Capital Territory) accepted that the plaintiff had raised arguable claims.  The remaining 10 proceedings were each dismissed.

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17 April 2025

Decision Restricted [2025] ACTSC 155

CRIMINAL LAW – application for disclosure of protected confidences to be admitted – where complainant’s memories of sexual assault are “recovered memories” – whether mental health professional involved in complainant’s recovery of memories of alleged offending – comments made about “frustratingly opaque” provisions of the EMP Act

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Baker J 's chambers.  Associate.BakerJ@courts.act.gov.au

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16 April 2025

Decision Restricted [2025] ACTSC 154

CRIMINAL LAW – application for evidence of prior sexual activity of complainant to be admitted – evidence of sexual activities between complainant and her cousin from when they were young children – where complainant’s memories of sexual assault are “recovered memories” – whether complainant’s memories of sexual assault are of her cousin or of the accused – evidence substantially relevant to fact in issue

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Baker J 's chambers.  Associate.BakerJ@courts.act.gov.au

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16 April 2025

Decision Restricted [2025] ACTCA 13

CRIMINAL LAW – tendency evidence – acts of indecency to persons under 16 years by a young person – whether in the interests of justice to revisit pre-trial ruling admitting tendency evidence – whether presumption of significant probative value under s 97A of the Evidence Act was displaced – where prosecution sought to rely on different tendency to that specified in the tendency notice – appeal dismissed

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Mossop J’s chambers.  Associate.MossopJ@courts.act.gov.au

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16 April 2025

Barrett (a pseudonym) v Pemberton [2025] ACTSC 152

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – family violence offence – contravene family violence order – application for non-conviction order – intoxication – conviction recorded

APPEAL – Appeal from Magistrates Court – adequacy of reasons – whether sentence manifestly excessive – appeal dismissed

The Supreme Court has dismissed an appeal against sentence from the Magistrates Court. The appellant was convicted of contravening a family violence order in the Magistrates Court and was sentenced to a six-month good behaviour order. The appellant appealed this sentence, alleging that the Magistrate erred by not expressing an assessment of the objective seriousness of the offending conduct, not specifying a discount for the appellant’s guilty plea, not giving adequate reasons and not taking into account two days of pretrial custody. The appellant also contended that the sentence was manifestly excessive, and that the Magistrate should have made a non-conviction order. Justice Baker dismissed the appeal.

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16 April 2025

Shoveller v Scott [2025] ACTSC 153

APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – sword-wielding man barricaded in a car outside Parliament House – yelling man with selfie stick approaches – refuses to stay outside cordon established by police – man, yelling, arrested – convicted of hindering public officials – no legal authority for purported cordon established – magistrate erred in declining to entertain the issue – appeal allowed

APPEAL – APPEAL AND NEW TRIAL – Where magistrate did not examine the legality of cordon purportedly established by police – error led to miscarriage of justice – inappropriate to remit the matter – convictions reversed

POLICE – RIGHTS, POWERS AND DUTIES – Whether police had statutory or common law power to establish cordon around critical incident – boundaries of cordon, and other operational details, not established by evidence – no power to establish a cordon relied upon before the magistrate or on appeal – availability of any such cordon power not established

A sword-wielding man had barricaded himself inside a car outside Parliament House in mid-2023. The appellant sought to approach and video that incident, refusing to remain outside a cordon established by police. The appellant, yelling, was arrested for hindering the officers in their duties.

The Supreme Court allowed the appeal, finding that it was not established that there was lawful authority for police to maintain an enforceable cordon. The Supreme Court set aside the convictions and entered verdicts of not guilty.

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15 April 2025

Williams v DPP [2024] ACTCA 24

Judgment Summary

APPEAL – CRIMINAL LAW – Appeal against jury verdict – appeal brought on ground that inconsistent verdicts were unreasonable or unsupported having regard to the evidence – appellant submitted factual inconsistency between finding of not guilty on one count and not the other – obvious explanation for inconsistency due to evidence for one count being clearer and more prominent than the other – jury conscientiously performed their duty

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14 April 2025

Allen v ACT [2025] ACTSC 48

CIVIL PROCEDURE – Originating Claim – claim for damages for medical negligence – where proceedings commenced before plaintiff had complied with the requirements of Ch 5 of the Civil Law (Wrongs) Act 2002 (ACT) – where plaintiff has complex medical condition requiring further surgery – application for stay of proceedings pending completion of the required steps

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14 April 2025

Classic Constructions (Aust) Pty Ltd v Shearman (No 5) [2024] ACTSC 402

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application by plaintiff for leave to issue subpoenas before allocation of hearing date – where plaintiff seeking production of correspondence with defendants’ expert – where defendant swore lengthy affidavit explaining the process undertaken by her to obtain expert reports – self-represented defendant of limited resources – undesirability of imposing requirement to comply with subpoena in addition to other steps required

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for guillotine order – complex building dispute conducted by self-represented litigant – undesirability of pre-emptively determining consequence of failure to comply with timetable

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11 April 2025

Pacific Formwork (Aust) Holdings Pty Ltd v United Rentals Australia Pty Ltd [2025] ACTSC 143

CIVIL LAW – possession of goods by a person other than the owner – where goods belonging to the respondent were abandoned by a third party on premises leased from the appellant – whether circumstances governed by the Uncollected Goods Act – whether Act operates as a bar to common law claims in conversion and detinue – requirements of a valid notice under s 7 of the Act – reasonableness of costs required by possessor to be met by the owner before the goods will be released

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11 April 2025

DPP v Umunakwe (No 2) [2025] ACTSC 139 (SCC 187 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – offender found guilty at jury trial – finding that offender had knowledge of victim’s non-consent – offending committed in breach of conditional liberty – relevance of risk of deportation – limited remorse – need for punishment and denunciation – harm to victim recognised – term of imprisonment imposed

The Supreme Court sentenced an offender to a term of imprisonment for sexual intercourse without consent. The Court found the offender had knowledge of the complainant’s lack of consent. The Court took into account the offender’s risk of deportation and considered his subjective circumstances did not outweigh the need for punishment, denunciation and recognition of the harm to the victim.

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11 April 2025

DPP v Sheridan (a pseudonym) (No 5) [2025] ACTSC 75

CRIMINAL LAW – application for directed verdict of acquittal for two counts – whether position of the complainant during alleged sexual offending an essential particular – count particularised as the “first instance” of anal intercourse – complainant’s evidence regarding “switching” between anal and vaginal penetration unclear – high threshold for directed verdict not met for either count – application dismissed

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10 April 2025

DPP v Sheridan (a pseudonym) (No 4) [2025] ACTSC 61

CRIMINAL LAW – application for disclosure of protected confidences – accused seeking complainant’s health records to confirm if complainant received diagnoses of mental illnesses by a medical practitioner – documents produced on subpoena by Canberra Health Services did not fall within this description – redacted note from complainant’s general practitioner disclosed – comments made about “frustratingly opaque” provisions of the EMP Act

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10 April 2025

DPP v Sheridan (a pseudonym) (No 3) [2025] ACTSC 57

CRIMINAL LAW – application for evidence of prior sexual activity of complainant to be admitted - where complainant engaged in sexual intercourse with another person shortly after alleged offending – where complainant gave evidence she sustained significant injuries during the course of alleged sexual offending – evidence admitted

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10 April 2025

DPP v Sheridan (a pseudonym) (No 2) [2025] ACTSC 56

CRIMINAL LAW – application for advance ruling regarding admissibility of evidence of complainant’s mental health and medication – relevance of side effects of medication and combination of medication with alcohol – whether complainant’s mental health conditions made her more likely to be impulsive – whether evidence relevant only to credibility – whether probative value of evidence substantially outweighed by the danger of unfair prejudice – any prejudice to prosecution to be addressed by jury warning

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10 April 2025

DPP v Sullivan (No 3) [2025] ACTSC 134 (SCC 125 of 2023; SCC 126 of 2023; SCC 186 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – commercial premises – unlawful possession of stolen property – possession of offensive weapon with intent –- mental illness – Verdins considerations – parole time credit – illicit substance use – complex rehabilitation prospects – institutionalised offender

The Supreme Court sentenced an offender to a total period of imprisonment of 7 years, 2 months and 28 days for 3 counts of aggravated robbery, 1 count of unlawful possession of stolen property and 1 count of possess offensive weapon with intent. In sentencing the offender, the Court considered the offender’s mental illness, substance use and history of institutionalisation. The Court further had regard to the principles concerning parole time credit under Chapter 7 of the Crimes (Sentence Administration) Act 2005 (ACT) in circumstances where the offender was on parole at the time he committed the offences.

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9 April 2025

DPP v Sheridan (a pseudonym) [2025] ACTSC 25

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – sexual violence offences – application by accused for order for particulars – entitlement of accused to know the particular act, matter or thing alleged as the foundation for each charge – consideration of manner in which particulars may be provided – whether counts alleging separate acts of penetration within single episode of alleged sexual offending bad in form

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – other sexual activity – general immunity of evidence of complainant’s other sexual activities – application for leave to cross-examine – where prosecution concedes leave should be granted – absence of evidence necessary to assess appropriateness of granting leave

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to have subpoenas set aside – where subpoenas seek medical records and about complainant’s mental health for period of four years after alleged offences – where subpoena seeks complainant’s personal diaries over five years – whether any legitimate forensic purpose established

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8 April 2025

Chapman v Cottle (No 2) [2025] ACTSC 126

APPEAL - CRIMINAL LAW - Appeal from the Magistrates Court against sentence – residual discretion - matter decided subsequent to referral to full court – sentence not manifestly inadequate – lenient sentence – sentencing Rubicon of manifest inadequacy not crossed

The Supreme Court has dismissed a prosecution appeal against a sentence of a non-conviction order and good behaviour order imposed in relation to various offences in the Magistrates Court. Additionally, the judgment of Loukas Karlsson J provided discussion in relation to the residual discretion.

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7 April 2025

DPP v Walker (a pseudonym) [2025] ACTSC 141 (SCC 151 of 2024; SCC 419 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – family violence with children present – burglary – reduction for plea of guilty in the Supreme Court to charge resolution offered in the Magistrates Court – foetal alcohol effects – constellation of Bugmy, Verdins, and Henry principles – fulltime imprisonment – intensive correction order imposed

The Supreme Court has sentenced an offender to 6 months imprisonment for the charge of aggravated assault occasioning actual bodily harm, and 14 months for the offence of burglary, with applied discounts for the offender’s pleas of guilty. The sentence for the offence of burglary is to be served by way of intensive correction order. The Court considered the offender’s subjective circumstances, including a childhood of deprivation and in-utero exposure to alcohol use, in formulating the appropriate sentence orders. The Court considered that a constellation of the principles contained in Bugmy, Verdins, and Henry applied in the offender’s circumstances, such that there was a moderation of moral culpability and the role of general deterrence in the sentences imposed. The Court also resentenced the offender to the rising of the Court for two breached good behaviour orders.

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7 April 2025

DPP v Loiterton [2025] ACTSC 59 (SCC 55 of 2024; SCC 56 of 2024; SCC 181 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – drive at police officer – striking police officer causing injury and harm – particulars of offence – reckless – prevalence and general deterrence – imprisonment only appropriate penalty – remarkable rehabilitative progress – depth of genuine remorse and insight – two wrongs do not make a right – suspended sentence with community service imposed

The Supreme Court has sentenced an offender for an offence of drive motor vehicle at police.  The Court found the offending to be a serious example of the offence, as the police officer was struck by the offender’s car, causing injury. However, the subjective circumstances of the offender, including their commitment to rehabilitation, their mental health conditions, and their remorse and insight into the offending , supported a sentence that would ensure their rehabilitation would continue to significantly reduce their likelihood of reoffending.  The offender was sentenced to three years imprisonment, fully suspended with a good behaviour order requiring the offender to perform 300 hours of community service within 2 years.

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7 April 2025

CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 5) [2025] ACTSC 137

PRACTICE & PROCEDURE – SUBPOENAS – legitimate forensic purpose – where issue at trial is whether landlord’s refusal to consent to lease transfer is reasonable – where legislation confines material to be used in assessment of reasonableness – where pleadings join issue with landlord’s basis of refusal – legitimate forensic purpose established

The Sup Ct has dismissed an application to set aside subpoenas.  The parties were involved in a leasing dispute.  An issue at trial will be whether the landlord unreasonably withheld consent to the sale of two businesses to third parties.  Previously in the same proceeding, the Ct held that the legislation limited the scope of the documents relevant to the assessment of reasonableness depending on the basis communicated for withholding consent.  However, as that issue was disputed on the pleadings, it was properly a matter for trial.  There remained a legitimate forensic purpose in seeking to obtain the documents under subpoena now even though ultimately the documents may not be admissible if the Ct were to accept the plaintiffs’ argument about the landlord’s communicated reasons for refusal at trial.

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4 April 2025

DPP v Little (a pseudonym) (No 2) [2025] ACTSC 112

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to waive pre-trial disclosure requirements – expert evidence – late disclosure – whether it is in the interests of justice to waive pre-trial disclosure requirements – application refused

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4 April 2025

House v ACT [2025] ACTSC 122

HUMAN RIGHTS – EXTENSION OF TIME – Where one-year limitation period for starting proceedings against a public authority applies pursuant to s 40C(3) of the Human Rights Act “unless the court orders otherwise” – where leave only required for one paragraph of pleadings and proceedings otherwise commenced within time – whether pleadings adequately allege how breaches of ss 8(2) and 27(2) of the Human Rights Act occurred – effect of adequacy of pleadings on court’s discretion to otherwise order – extension of time not granted – leave granted to file amended pleading

The Supreme Court has not granted an extension of time to the plaintiffs pursuant to s 40C(3) of the Human Rights Act 2004 (ACT), but has granted leave to them to file an amended pleading.

Extension of time was only required for one paragraph of the pleadings, but the pleadings did not adequately allege how breaches of ss 8(2) and 27(2) of the Act had occurred. An extension of time was therefore not granted in the absence of adequate pleadings.

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3 April 2025

Tamayo-Del-Solar v DPP [2025] ACTSC 120

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to withdraw guilty plea to 3 counts of an act of indecency – underlying circumstances surrounding the plea – whether miscarriage of justice would result if plea not withdrawn – where facts supporting counts not agreed at the time pleas entered – where applicant later denies conduct constituting acts of indecency – where applicant had sufficient opportunity to consider charges – no miscarriage of justice found

The Supreme Court has refused an application to withdraw guilty pleas made in respect of 3 counts of an act of indecency.  The applicant did not sign a statement of agreed facts at the time the pleas were entered and did not subsequently agree with the facts constituting the elements of the offence.  In finding that there were no circumstances that would result in a miscarriage of justice if the pleas were not withdrawn, the court found the applicant had legal representation and was not given inappropriate legal advice, that the pleas were voluntarily entered without undue pressure or duress, that he was advised of the allegations and understood them at the time of deciding to enter the pleas, and that the applicant intended to plead to each of the three counts. Accordingly, no circumstances affecting the integrity of the pleas were established.

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1 April 2025

The Owners – Units Plan No 4312 v Project Coordination Australia Pty Ltd [2025] ACTSC 110

PRACTICE AND PROCEDURE – PARTIES – Application to join director of a defendant company as tenth defendant in proceedings – reliance placed by plaintiff on rr 211 and 220 of the Court Procedures Rules – application for joinder justifiable under either of those rules notwithstanding that a rigid grammatical analysis of each rule could narrow its operation

The Supreme Court has allowed an application by the plaintiff to join the director of a defendant company as the tenth defendant in proceedings. Reliance was placed by the plaintiff on rr 211 and 220 of the Court Procedures Rules. The application for joinder was justifiable under either of those rules notwithstanding that a rigid grammatical analysis of each rule could narrow its operation.

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1 April 2025

Kennedy v Qantas Ground Services Pty Ltd (No 5) [2025] ACTSC 102

PRACTICE AND PROCEDURE – DIRECTIONS – Directions made in relation to the serving of expert evidence and attendance at mediations – 90-step timetable proposed by plaintiff – more limited timetable proposed by defendants focusing on expert evidence and mediations – the latter course more appropriate in interests of advancing the proceedings towards a resolution

PRACTICE AND PROCEDURE – COURTS AND JUDGES GENERALLY – Oral application by plaintiff for judge to recuse himself – application of the fair-minded lay observer test – application refused

The Supreme Court has made directions in relation to the serving of expert evidence and attendance at mediations. The plaintiff proposed a 90-step timetable, the defendants proposed a more limited timetable focusing on expert evidence and mediations. The latter course was considered more appropriate in the interests of advancing the proceedings towards a resolution.

An application for the judge to recuse himself was dismissed as the fair-minded lay observer test was not met.

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1 April 2025

DPP v Savage (No 2) [2025] ACTSC 121

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Non-graduate completion of Drug and Alcohol Treatment Order – participant remains committed to life of rehabilitation – fish breeding – science – participant moved to good behaviour order– order confirmed

UNREPORTED DECISION – history of victim impact statements – drive motor vehicle at police officer – cause grievous bodily harm – failing to stop for police – possession of offensive weapon – drive with prescribed drug in oral fluid – drug and alcohol treatment order imposed

The Supreme Court has confirmed the order of a participant on the Drug and Alcohol Sentencing List (the List), moving them to the good behaviour portion of their drug and alcohol treatment order in a non-graduate completion of the order. The judgment attaches as a schedule an unreported decision of the List that considers the history of victim impact statements and gives consideration to offences including drive motor vehicle at police.

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1 April 2025

DPP v Linde [2025] ACTSC 116 (SCC 348 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – attempted aggravated robbery – entry to apartment and luxury items stolen – robbery of co-owners of IGA – assault and verbal threats – s 66 of the Crimes (Sentencing) Act 2005 (ACT) – existing and primary sentence – resetting of nonparole period – need to not be crushing – rehabilitation

The Supreme Court has sentenced an offender to a total period of imprisonment of 3 years for offences of aggravated burglary by joint commission, theft by joint commission, and attempted aggravated robbery by joint commission. In sentencing the offender, the Court considered the offenders substance use, childhood circumstances, and previous periods of sobriety. The Court further had regard to the totality principle, and s 66 of the Crimes (Sentencing) Act 2005 (ACT), in circumstances where the offender is already serving a period of imprisonment with a nonparole period attached. The offender will now become eligible for parole on 1 July 2025.

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31 March 2025

Cover v ACT Integrity Commission (No 2) [2025] ACTSC 119

PRACTICE AND PROCEDURE – INJUNCTIONS – Interlocutory relief – where plaintiff sought to restrain Integrity Commission from publishing proposed second report in Operation Luna – serious question to be tried – where, due to existing publication of first report, any harm by publication of proposed second report would merely be additional to that occasioned by first report – where injunction would impede the Commission’s important public function proximate to the centre of government – where the subject-matter of substantive proceedings relate to first, not second, report – interlocutory injunction not granted

PRACTICE AND PROCEDURE – INJUNCTIONS – Availability of interlocutory relief where the subject-matter of an injunction (a report) could be subject to change – argument by defendant that injunctive relief inappropriate where the contents of the proposed second report may change – in the circumstances, the probability of a relevant change was low – not a basis to decline interlocutory relief

EVIDENCE – PRIVILEGE – Parliamentary privilege – where claim for interlocutory relief relates to unpublished proposed second report of Integrity Commission – where claim for final relief in the same proceedings relates to published first report – where reports potentially subject to parliamentary privilege – parliamentary privilege issue to be determined after final hearing – first and proposed second reports admitted into evidence to assess whether there is a serious question to be tried and the relationship between the content of the first and second reports – such a course not contrary to Art 9 of the Bill of Rights 1688

The Supreme Court has declined to issue an interlocutory injunction against the ACT Integrity Commission which would have restrained the Commission from publishing, and presenting to the Speaker of the Legislative Assembly, its proposed second report in Operation Luna.

While the court accepted that there was a serious question to be tried, the balance of convenience did not favour the granting of an injunction. That conclusion was reached because, among other factors, the Commission is an institution whose function is proximate to the centre of Territory government, and any harm from the publication of a second report would be merely additional to that caused by the publication of the first report.

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27 March 2025

In the Estate of Cornwell [2025] ACTSC 118

WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) s 11A – where testator executed will overseas – where only one witness present in room and other witness present via audio-visual means – where no legislative provision for electronic witnessing in Territory – relief granted

CONFLICT OF LAWS – Wills – where testator domiciled in Territory but executed will in Vietnam – where solicitor relied on provisions applicable in NSW permitting will to be witnessed by electronic means – whether provision applies to document witnessed.

The Supreme Court has declared that a will which was executed in Vietnam by a man domiciled in the ACT without complying with the formalities of the Wills Act 1968 (ACT) constitutes the last will of the deceased.  The informal will had been witnessed by a solicitor located in NSW using audio-visual means.  Such a procedure is available under section 14G of the Electronic Transactions Act 2000 (NSW) but there is no equivalent provision in the ACT.  The Court considered governing law was that of the Territory but was satisfied that the deceased intended the informal will to operate as his will at the time he executed it.

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28 March 2025

DPP v Hyatt [2025] ACTSC 103 (SCC 6 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – no criminal history – discount for plea of guilty – significant remorse and rehabilitation – delay and rehabilitation – boundaries and consensual sexual intercourse – deleterious effect of pornography – intensive corrections order

The ACTSC has sentenced an offender for one offence of committing an act of indecency without consent. The offender committed the offence against the victim several years ago. The offender received an overall sentence of 1 year imprisonment, to be served by way of Intensive Corrections Order.

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27 March 2025

In the Estate of Grant Edward Flitton (No 2) [2025] ACTSC 117

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Application for judicial advice – deceased left no will – application of Sch 6 of the Administration and Probate Act – evidence not conclusive but strongly indicative of deceased not being survived by partner, issue, parents or grandparents but survived by a cousin – counsel’s advice provided and affidavit evidence deposed by friend, former partner, solicitor and Public Trustee and Guardian – Benjamin order made

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27 March 2025

Law Society v Ford (No 3) [2025] ACTSCFC 1

PRACTICE AND PROCEDURE – COSTS – Where defendant struck off roll of solicitors – where plaintiff wholly successful in the proceedings – where plaintiff had made settlement offers – where defendant sought not to pay plaintiff’s costs – where defendant pointed to range of factors in the history of this and other proceedings – defendant’s submissions contained arguments that either were scandalous, attempted to relitigate resolved matters, had no proven foundation, or indicated lack of understanding of judicial process – plaintiff’s choice of jurisdiction not inappropriate –  defendant to pay plaintiff’s costs

PRACTICE AND PROCEDURE – COSTS – Where arguments raised to depart from the usual rule as to costs – argument as to appropriateness of plaintiff’s choice of forum, namely the ACAT, where plaintiff could have commenced proceedings in Supreme Court – argument alleging defendant’s own impecuniosity – argument that costs in past related proceedings encompass all or much of subsequent proceedings – arguments rejected

The Supreme Court has awarded costs in proceedings where the defendant was struck off the roll of solicitors. The plaintiff was wholly successful and had made settlement offers, but the defendant sought not to pay plaintiff’s costs. Defendant’s submissions lacked proven foundation or were otherwise without merit.

Argument as to appropriateness of the original forum (ACAT) when proceedings could have been commenced in Supreme Court, and a further argument as to the defendant’s impecuniosity were rejected.

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26 March 2025

DPP v Wade [2024] ACTSC 392 (SCC 182 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offences committed on a family member – disputed facts hearing – directions – victim and offender credibility – findings – value of relatively early guilty plea eroded by the hearing – offender’s experience of childhood sexual abuse – remorse and insight –elderly and physical health issues – no penalty other than fulltime imprisonment warranted – mercy in sentencing

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26 March 2025

Hall (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2025] ACTSC 113

CIVIL PRACTICE AND PROCEDURE – EVIDENCE – Leave to disclose protected confidences nunc pro tunc – Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether legitimate forensic purpose – whether public interest in ensuring fair hearing outweighs public interest in preserving confidentiality of protected confidence – leave granted

STATUTORY INTERPRETATION – WORDS AND PHRASES – meaning of “proceeding” – where chapter appears to apply only to sexual, violent and family violence offence proceedings but definition applying within division dealing with disclosure of protected confidences refers to both civil and criminal proceedings

The Supreme Court has granted leave to disclose protected confidences in a personal injury claim.  The Court observed that notwithstanding the consent of the counselled person (the plaintiff) to the disclosure and the pre-trial statutory obligations of disclosure for such matters under the Civil Law (Wrongs) Act 2002 (ACT), the legislation still required an application for leave to be made to the Court.  Leave was granted as the Court was satisfied the public interest in ensuring a fair hearing outweighed the public interest in preserving the confidentiality of the protected confidences.

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25 March 2025

DPP v Vance (a pseudonym) [2024] ACTSC 308 (SCC of 96 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – incest – vulnerable offender and victim – young person – genuine remorse – moral culpability of young person committing sexual offence – trauma caused to victim by criminal justice system – promotion of rehabilitation – individualised justice – supervision conditions necessary – continued engagement with therapeutic support – exclusion from child sex offender register

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25 March 2025

Decision Restricted [2025] ACTSC 107

CRIMINAL LAW – Pre trial hearing – applications to admit prior sexual history of complainant – prosecution application to adduce evidence of complainant locating naked images of herself on accused phone – accused application to adduce evidence of the complainant taking relevant images of herself and accused walking in on her doing so – relevance of the evidence to complainant’s motive to lie – proper construction of “substantially impair confidence” in reliability of complainant – applications both granted

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Baker J 's chambers.  Associate.BakerJ@courts.act.gov.au

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25 March 2025

DPP v Do [2025] ACTSC 99 (SCC 242 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cultivate commercial quantity of controlled plant – offender in custody for over 1 year prior to being sentenced – co-offender sentenced to 10 months and 15 days – principle of parity applied – sentence of full-time custody imposed resulting in offender’s immediate release

The Supreme Court has sentenced an offender to a term of imprisonment of 11 months and 27 days (reduced by 15% on account of his plea of guilty) for an offence of cultivating a commercial quantity of a controlled plant with the intention of selling any of the plant or their products. The co-offender in the matter had previously been sentenced to 10 ½ months imprisonment. The Court noted that there was nothing to materially distinguish between the co-offenders’ involvement in the crime or their subjective circumstances, such that the principle of parity ought to apply. It was therefore appropriate to impose the same sentence on the offender as that of the co-offender, modified only to account for the timing of their pleas. The sentence was backdated to include pre-sentence custody, which resulted in the offender’s immediate release.

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25 March 2025

Maliganis Edwards Johnson v P2 (No 2) [2025] ACTSC 104

CIVIL LAW – PRACTICE AND PROCEDURE – Application to have injunction set aside ab initio – where injunction granted ex parte on the application of a law firm against another lawyer – apprehended breach of confidentiality and Harman undertaking – where court was invited to draw inference as to threat of breach based on coincidence of two events – consideration of content of duty of disclosure on an ex parte application – whether applicant ought to have disclosed the context in which one of the events occurred – whether applicant ought to have made inquiries about the two events before invoking the court’s injunctive jurisdiction ex parte

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21 March 2025

DPP v Alexander Waters (a pseudonym) [2025] ACTSC 84 (SCC 179 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – incest – act of indecency – offending against daughters – where the offender was in a position of trust – betrayal of parental trust – discount for plea of guilty – offender sentenced to term of imprisonment

The ACTSC has sentenced an offender for three offences of committing an act of indecency without consent and one count of incest. The offender committed offences against his two daughters between 15 and 20 years ago. The offender received an overall sentence of 5 years imprisonment, with a non-parole period of 2 years and 6 months.

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20 March 2025

Bye v Hend [2025] ACTSC 94

PRACTICE & PROCEDURE – application to withdraw admissions – where admissions deemed by omission to respond to Notice to Admit Facts – where delay but stage of proceeding permitted withdrawal without prejudice – application granted

The Supreme Court has granted leave to a plaintiff to withdraw deemed admissions, arising from a failure to respond to a Notice to Admit Facts.  Although the plaintiff delayed bringing the application, the court found the inadvertent mistake should be corrected given the nature of the admissions, their significance to the case, the stage of the proceeding and the lack of injustice to the defendants.  The plaintiff was ordered to pay the defendants’ costs of the application.

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19 March 2025

Walker v Walker (No 3) [2025] ACTSC 91

COSTS – Probate proceedings – whether different principles apply in probate proceedings – whether plaintiff had mixed success – whether plaintiff failed on a dominant issue

The Supreme Court has made costs orders in a proceeding dealing with probate and family provision matters, where the plaintiff was found to have had mixed success.  The Court set out principles guiding the exercise of the discretion in the probate jurisdiction where a party was unsuccessful.  The plaintiff was awarded 60% of her costs, to be paid out of the deceased’s estate.

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19 March 2025

In the matter of Kinver Holdings Pty Ltd [2025] ACTSC 90

TRUSTS – family trust – lost trust deed – evidence of contents – judicial advice as to basis for management and administration of trust – whether trustee justified in managing and administering trust in accordance with terms set out in another deed of settlement concerning a different trust which was executed at the same time for a similar purpose – whether trustee justified in treating as valid the appointment of Kinver Holdings Pty Ltd as trustee – where deed of appointment missing, the terms of the trust are silent as to mode of appointment, and the appointment deed was not registered in accordance with statutory requirements – applicant appointed as trustee pursuant to Trustee Act 1925 (ACT), s 70 for abundant caution

The Supreme Court has appointed a corporate trustee of a family trust and provided judicial advice that the trustee is justified in managing and administering that trust in accordance with the terms set out in another document concerning a different trust. The application for judicial advice was brought because the original trust deed was missing and the only copy of it was incomplete, and the deed of appointment of the trustee was also missing.  The trust in question was originally set up to deal with assets of a business partnership.  The court found that the trustee could justifiably treat the terms of the missing trust deed as being the same as those contained in the trust deed for the other business partner, which had originally been prepared by the same solicitors for the same purpose.  There was sufficient evidence to establish that the documents were each created using the same trust template.

However, the court found that the applicant would not be justified in proceeding on the basis that it had been validly appointed as trustee, because the deed of appointment was missing, the terms of the trust were silent as to the required mode of appointment, the deed of appointment was not registered in accordance with statutory requirements and the evidence was not otherwise clear that the appointment was validly made at the time.  To remove any ongoing uncertainty about the validity of the trustee’s appointment, the court appointed the applicant as trustee with immediate effect.

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19 March 2025

DPP v Figura [2024] ACTSC 358 (SCC 177 of 2024; SCC 178 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – driving offences – aggravated furious driving – police pursuit – repeat offender – disqualified driving – breach of conditional liberty – recidivist offender – application of Bugmy principles – drug dependency substantially contributing to commission of offences – prospects of rehabilitation – drug and alcohol treatment order imposed

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18 March 2025

DPP v Black (a pseudonym) (No 2) [2025] ACTSC 89 (SCC 108 of 2023; SCC 271 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sex offences – multiple child victims – sexual intercourse with a person under 10 years old – indecent assault on a female – breach of familial trust – significant harm caused to the victims – offender now an elderly man – consideration of the offender’s physical health – consideration of the impact of imprisonment on the offender’s health – limited expression of remorse – seriousness of offending warrants substantial term of imprisonment

The Supreme Court has sentenced an offender for one count of sexual intercourse with a person under 10 years and two counts of indecent assault on a female to a total period of imprisonment of 8 years. The offences were committed between 1968 and 1994. The offender is now elderly and of ill health which necessitated consideration of the potential impact of imprisonment on his physical health. Although prison will be more difficult for him than a younger, healthier man, the seriousness of the offending and the immense harm caused to the victims warranted a substantial term of imprisonment.

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18 March 2025

Fletcher (a pseudonym) v Knight (a pseudonym) (No 2) [2025] ACTCA 8

Judgment Summary

CRIMINAL LAW – Appeal against ruling admitting unlawfully obtained evidence under s 138 of the Evidence Act 2011 (ACT) – seizure of items under a three-condition warrant – whether requisite belief required to be formed before seizure of property under three-condition warrant

EVIDENCE – Cross-appeal against exclusion of evidence – attempted cover up of contravention of Australian law by police – whether attempted cover up relevant to consideration of the “undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained” in s 138 of the Evidence Act

APPEALS – Appropriate standard of appellate review under s 138 of the Evidence Act – House v The King error not established – whether House v The King error required – whether Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 should be followed – no challenge to decision in Sidaros – correctness standard applied

The Court of Appeal has dismissed an appeal and a cross-appeal concerning the exclusion of evidence under s 138 of the Evidence Act 2011 (ACT). The appellants had been charged with offences relating to the use of hidden cameras to capture intimate images of their female tenants. A Magistrate found the appellants guilty of various offences, having rejected the appellants’ contentions that evidence found on a laptop computer and a mobile phone should be excluded on the basis that it was illegally obtained. The appellants’ appeal to the Supreme Court was successful in relation to the evidence found on the laptop, but not the evidence found on the mobile phone.

The Court of Appeal held that evidence from a mobile phone should be admitted under s 138, but that evidence found on a laptop computer should have been excluded. Critical to the latter was the finding, unchallenged on appeal, that the investigating officer had attempted to cover up the illegality relating to the laptop.

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17 March 2025

Millington v Peach (No 2) [2025] ACTSC 21

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Judicial review of decisions made by ACT Justice and Community Safety Directorate – plaintiff held on remand awaiting trial at the time decisions were made – where plaintiff transferred from prison in ACT to Goulburn Correctional Centre – whether decision-making process accorded with procedures required under Corrections Management Act 2007 (ACT) – whether denial of procedural fairness

HUMAN RIGHTS – whether conduct of authorities at AMC breached plaintiff’s human rights under ss 10, 11, 18, 19, 21, 22, and 24 of the Human Rights Act 2004 (ACT) – consequences of failure to review decision to transfer plaintiff to a different correctional facility

The Supreme Court has declared that the Director-General, Justice and Community Safety Directorate failed to observe review procedures required under the Corrections Management Act 2007 (ACT)and that this resulted in a denial of procedural fairness in respect of a transfer decision made by the Commissioner of ACT Corrective Services.  The Court further declared a failure to give proper consideration to the plaintiff’s human rights to be treated in a way that is appropriate for a person who had not been convicted, and to have rights and obligations recognised by law decided by a competent, independent and impartial tribunal after a fair hearing.

The proceeding involved segregation and transfer decisions made while the plaintiff was being held on remand at the Alexander Maconochie Centre, which resulted in the plaintiff being transferred to Goulburn Correctional Centre for over 18 months, including being initially segregated for a period of over 2 months.  The defendants had accepted that the statutory procedures were not followed but argued that the plaintiff had not suffered any practical injustice.  The Court found the errors had materiality and consequences severe enough to constitute breaches of two human rights.  Other breaches of human rights alleged by the plaintiff were not established.

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17 March 2025

Haire v ACT Integrity Commission [2025] ACTSC 87

PRACTICE AND PROCEDURE – COSTS – Proceedings for judicial review arising out of investigation by Integrity Commission – alleged denial of procedural fairness in rulings made by Commission and apprehension of bias arising out of alleged refusal to permit cross-examination of a witness during public hearings – public hearings continue and cross-examination subsequently allowed – proceedings discontinued with leave of the court and the question of costs reserved – parties enthusiastically contest question of costs – 26 pages of written submissions – not appropriate for court to determine the merits or examine the position of the parties in significant detail in order to determine question of costs – parties acted reasonably in bringing and defending proceedings – no order as to costs

The Supreme Court has made no order as to costs of the proceedings. Proceedings were for judicial review arising from an Integrity Commission investigation alleging denial of procedural fairness and apprehension of bias. The proceedings were discontinued with leave of the court and questions of costs reserved. Parties enthusiastically contested the question of costs but parties acted reasonably in bringing and defending proceedings. It was also not appropriate for the court to determine the merits or examine the position of parties in significant detail in order to determine the question of costs. No order was therefore made.

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14 March 2025

BJT v Australian Capital Territory [2025] ACTSC 69

EVIDENCE – GENERAL – Application for leave nunc pro tunc to compel documents containing protected confidences – where leave not initially sought due to inadvertence by both parties – where both parties consent – where legislation requires court’s satisfaction of certain matters despite parties’ consent – appropriate to grant leave as sought

The Supreme Court has granted leave nunc pro tunc to compel the production and disclosure of documents containing protected confidences relating to the plaintiff. In granting leave, the Supreme Court noted that a review of the relevant legislation may be appropriate, having regard to the legislative requirement for a formal application and decision by the court in circumstances where both parties (crucially including the plaintiff) consent to the production and disclosure.

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13 March 2025

DPP v Hagan [2024] ACTSC 257 (SCC 91 of 2024; SCC 92 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – causing a bushfire – damaging property – lighting unauthorised fires – leaving a fire without extinguishing – fires lit in suburban area during bushfire season – assessment of offence of causing bushfire – potential and actual harm and risk to property, persons, and ecosystems – deterrence – substance use – promotion of rehabilitation – drug and alcohol treatment order imposed

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13 March 2025

The Owners - Units Plan No 4421 v Geocon Constructors (ACT) Pty Ltd [2025] ACTSC 68

PRACTICE AND PROCEDURE – SUBPOENAS – Application for leave to file and issue subpoena on Owners Corporation relating to financial documents and minutes – where moving party claims forensic purpose of subpoena is to inform decision as to whether to apply for security for costs – where no security for costs application on foot – application unsupported by authority and current practice – granting application would encourage fragmentation of proceedings contrary to s 5A of the Court Procedures Act – application refused with costs

PRACTICE AND PROCEDURE – COSTS – where approach contemplated by Court Procedures Rules to parties’ costs of complying with subpoenas is in issue – r 6611 contemplates that parties usually bear own costs of compliance

CORPORATIONS – UNITS TITLE OWNERS CORPORATION – where Owners Corporation’s capacity to pay costs potentially in issue – different costs considerations for Owners Corporations than for other corporations – special levies and other recovery mechanisms available to ensure liabilities are met

The Supreme Court has dismissed, with costs, an application for leave to file and issue a subpoena on the plaintiff, a Units Plan Owners Corporation. The moving party had sought to obtain copies of the Owners Corporation’s financial records over certain years, and its meeting minutes. The forensic purpose of this was said to be to determine whether to file an application for security for costs.
In dismissing the application, the Supreme Court found the application to be: unsupported by authority (including the Court Procedures Rules) and current practice; contrary to the purpose of the Court Procedures Act (which contemplates minimising the fragmentation of issues); and unnecessary in circumstances where Owners Corporations can impose special levies on owners to meet costs, thereby reducing the risk of non-payment if any adverse costs order were made.

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12 March 2025

DPP v Bennett (No 2) [2025] ACTSC 78

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – objects of order achieved – rehabilitation achieved – early graduation from treatment order – lengthy period of abstinence – family – skateboarding – ballet – order amended

The Supreme Court has graduated a participant from the supervision part of their drug and alcohol treatment order (treatment order), moving him to the good behaviour portion of the order. The participant was graduated from the treatment order early, recognising his achievement of rehabilitation goals and a lengthy period of abstinence. In graduating the participant, the Court celebrated the hard work the participant has undertaken since he was sentenced to the treatment order in 2023, and his achievements in being a dedicated father, partner, and community member.

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12 March 2025

DPP v Sullivan (No 4) [2025] ACTSC 80

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – application for adjournment of sentence hearing by prosecution – Crown Tender Bundle provided late – character references filed by accused – prosecution entitlement to provide character evidence in reply – where offender sought longer adjournment to obtain ICOAR – longer adjournment not opposed

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11 March 2025

DPP v Kingston [2025] ACTSC 70 (SCC 126 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to menace/harass/offend – distribution of an intimate image of another person without consent – plea of guilty – ACT and Commonwealth sentencing regimes – sentencing for both ACT and Commonwealth offences – intensive corrections order

The ACTSC has sentenced an offender for two offences of using a carriage service to menace/harass/offend and a further offence of distribution of an intimate image of another person without consent. The offending involved the offender sending an explicit video of a victim partaking in sexual intercourse and harassing victims via text message. The offender received an overall sentence of 2 years and 1 month, to be served by way of an Intensive Corrections Order.

The sentence is subject to the conditions that the offender perform 100 hours of community service within 12 months from the commencement of the sentence and continue with psychological counselling.

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7 March 2025

Cover v ACT Integrity Commission [2025] ACTSC 71

CONSTITUTIONAL LAW – THE NON-JUDICIAL ORGANS OF GOVERNMENT – The legislature – application by Speaker of ACT Legislative Assembly to be heard as amicus or joined as a party – where evidence potentially subject to parliamentary privilege – where parties cannot waive parliamentary privilege – where Speaker submits that parties may not have particular interest in the issue – appropriate to hear Speaker as a representative of the legislature

PRACTICE AND PROCEDURE – AMICUS CURIAE – Application by Speaker of ACT Legislative Assembly to be heard as amicus or joined as a party – where evidence potentially subject to parliamentary privilege – where Speaker wishes to make submissions on the issue of parliamentary privilege – where hearing Speaker will not substantially add to cost or length of hearing – either course available under Court Procedures Rules or within the court’s inherent jurisdiction – more appropriate to hear Speaker as amicus than to join as party

PRACTICE AND PROCEDURE – COSTS – Anticipatory application by Speaker that there be no order as to costs unless the court otherwise considers it appropriate – order not made – inappropriate to make anticipatory cost order

The Supreme Court has granted an application by the Speaker of the ACT Legislative Assembly to be heard as amicus curiae in this matter.

The Speaker had sought to be heard as amicus (or otherwise joined as a party) to make submissions on parliamentary privilege in relation to a report by the ACT Integrity Commission (entitled “Special Report – Operation Luna (Part 1)”). The Supreme Court considered that the Speaker ought to be heard on the issue, noting the admissibility of the Report would be significant to the outcome of the proceedings. The Supreme Court granted the application on the basis that hearing the Speaker would not substantially increase the length or cost of the hearing.

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7 March 2025

DPP v Arcus [2024] ACTSC 317

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to adduce prior sexual activities of the complainant – leave required to be sought – leave to cross-examine – relevance to facts in issue – relevance of prior sexual history to credibility – leave granted

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6 March 2025

DPP v Williams [2025] ACTSC 67 (SCC 241 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated burglary – accessory after the fact to murder – home invasion to obtain drugs and money planned by offender, to be carried out by others including minors – home invasion carried out on wrong premises – victim shot and killed – offender covered-up murder – plea of guilty – offender suffering from PTSD – limited criminal history – evidence of work and treatment in AMC but mixed prospects of rehabilitation – sentence of seven years’ imprisonment imposed – non‑parole period of four years and two months imposed

The Supreme Court has published the reasons for sentence of an offender who pled guilty to charges of attempted aggravated burglary and of being an accessory after the fact to murder. The offender had planned a home invasion to obtain money and drugs, to be carried out by others — including minors. However, the home invasion was carried out on the wrong premises, where the victim (not being the intended target of the burglary) was shot and killed.

In sentencing, the Supreme Court took into account a range of factors, including the offender’s plea of guilty, mental condition, limited criminal history, evidence of work and improvement in the AMC, and lack of significant remorse until the time of sentence. The Supreme Court found that the were mixed prospects for the offender’s rehabilitation.

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6 March 2025

DPP v Nguyen [2025] ACTSC 54 (SCC 6 of 2024;  SCC 7 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – driving offences – serious examples of aggravated robbery and aggravated driving – car-jacking – use of force and offensive weapon – Bugmy principles not enlivened due to limited information – absence of remorse or insight – fulltime imprisonment imposed

The Supreme Court has sentenced an offender to 4 years and 8 months imprisonment for offences of aggravated robbery, aggravated furious/reckless/dangerous driving, and driving while disqualified. The Court found that due to the seriousness of the offending, lack of remorse and insight from the offender, significant impacts on the victim, and community safety, the only appropriate sentencing option was the imposition of a lengthy sentence with a nonparole period.

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5 March 2025

Kennedy v Qantas Ground Services Pty Ltd (No 4) [2025] ACTSC 66

PRACTICE AND PROCEDURE – SUPREME COURT PROCEDURE – Solicitor on the record – party for whom solicitor acting non-compliant with court orders – withdrawal of solicitor on the record two days before directions hearing – failure by solicitor to comply with rule 2806 of the Court Procedures Rules – adjournment granted to unrepresented plaintiff – conduct of solicitor referred to the Law Society

The Supreme Court has granted an adjournment to an unrepresented plaintiff and referred conduct of a solicitor who had represented the plaintiff to the Law Society. The solicitor withdrew from representing the plaintiff without compliance with r 2806 of the Court Procedures Rules two days before a directions hearing.

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4 March 2025

Higgins v Pretorius [2025] ACTSC 64

CIVIL LAW – NEGLIGENCE – Personal injury – where Defendant struck plaintiff to the side of the head with rubber mallet – Defendant charged and pleaded guilty to assault occasioning actual bodily harm – Defendant admits liability for assault – Defendant denies each head of damage claimed – general and aggravated damages – whether Defendant’s behaviour characterised as deliberate and unjustified conduct – exemplary damages – whether Defendant was “substantially punished” through criminal proceedings – whether conduct of Defendant during the proceedings amounted to contumelious disregard for the Plaintiff’s position – special damages – whether claim was too remote from injury and conduct – foreseeability of the injury and claim – damages awarded

The Court has awarded damages to the Plaintiff for an injury sustained when the Defendant struck her on the side of the head with a rubber mallet during a dispute over the nature strip between their houses. The Defendant did not contest liability, having previously been charged with assault occasioning actual bodily harm for the act, although did deny each claimed head of damages. The plaintiff suffered significant injury, damage, and loss because of the attack, including requiring multiple ketamine infusions each year to manage the pain, each of which require her to be admitted to hospital for a period of up to 12 days. The Plaintiff claimed general, exemplary, aggravated, and special damages, as well as economic loss and treatment and travel costs. The Court awarded damages under each heading claimed, except for exemplary damages, where the Court was not satisfied that the Defendant’s conduct amounted to contumelious disregard for the Plaintiff’s rights.

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4 March 2025

Pavey-Dray v Weomany Pty Ltd trading as Zaab Braddon [2025] ACTSC 65

CIVIL LAW – NEGLIGENCE – Personal injury – trip and fall on staircase – heel of plaintiff’s stiletto caught on an ‘unfinished’ step while exiting First Defendant’s restaurant – whether First Defendant bore liability for the Plaintiff’s injury where it shared occupation of staircase with another business – where Plaintiff fell down side of stairs occupied by other business – no delineation of staircase between businesses – First Defendant removed tiles from whole of staircase and failed to replace or make good the stairs – by removing tiles First Defendant occupied and altered the whole of the area – First Defendant bore liability for injury – whether First Defendant negligent in failing to take steps to minimise risk of injury to the Plaintiff – whether risk of injury was foreseeable – First Defendant ought to have known that pitted and uneven tread on stairs posed a risk of tripping – whether contributory negligence established where Plaintiff wore stiletto heels – causation – where pre-existing injury all but resolved at time of fall – damages awarded

The Court has found the First Defendant liable in negligence for an injury sustained by the Plaintiff. The Plaintiff’s stiletto heel caught on an ‘unfinished’ step while leaving the First Defendant’s restaurant, and as a result she fell down the stairs onto the footpath. The staircase was shared by the First Defendant and another business, and the First Defendant argued that the Plaintiff fell on the side of the stairs leased by the other business. By removing the tiles from the whole of the staircase years earlier, the Court found the First Defendant occupied the entire staircase, and therefore assumed liability. The Court held that the First Defendant breached its duty of care to the Plaintiff by failing to address the defects in the stairs, and held that but for the First Defendant’s negligence, the Plaintiff would not have fallen. The First Defendant was unsuccessful in its arguments of contributory negligence and third-party liability. Damages were awarded to the Plaintiff.

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4 March 2025

DPP v Gardner (No 5) [2025] ACTSC 41 (SCC 77 of 2020; SCC 153 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour orders attached to suspended sentence orders –– offender on pathway to rehabilitation – breach offences of low objective seriousness – family considerations – offender is full-time carer for young daughter – illicit substance use – good behaviour orders cancelled – offender resentenced to suspended terms of imprisonment

The Supreme Court has resentenced an offender following breaches of his good behaviour orders which were imposed upon him as part of suspended sentence orders. The Court was satisfied that the offender has made considerable progress in his rehabilitative journey and the breach offences were reflective of the ongoing challenge that illicit substance use presented to the offender, compounded by the family tragedy he had recently experienced.  The Court cancelled the existing good behaviour orders and resentenced the offender to terms of imprisonment to be immediately suspended upon the offender entering undertakings to be of good behaviour.

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4 March 2025

Murphy v The King [2025] ACTCA 10

APPEAL – CRIMINAL LAW – appeal against sentence – sentence involving multiple sexual offences, actual and grievous bodily harm, and common assault – multiple victims – whether sentence manifestly excessive – where backdating error

The Court of Appeal unanimously dismissed an appeal against sentences imposed for various offences including sexual intercourse without consent, inflicting actual bodily harm and common assault. The appellant relied on six grounds of appeal which in summary related to complaints that the sentences imposed were manifestly excessive and that the primary judge erred in his assessment of objective seriousness. Parties also agreed the primary judge had been provided with the incorrect number of days served by way of pre-sentence custody such that 19 days had not been accounted for. The Court found that the error could be rectified pursuant to s 37O of the Supreme Court Act 1933 (ACT).

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3 March 2025

86 Candles Pty Ltd v Commissioner for Fair Trading [2025] ACTSC 34

CIVIL LAW – AUSTRALIAN CONSUMER LAW – Access Canberra – declaratory relief – statutory compensation – natural justice – investigation into business conduct – complaints about a business – procedural fairness – response to media enquiries – media statements – media reports – functions of the Commissioner for Fair Trading – exercise of statutory functions – grounds not pleaded

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28 February 2025

Kember v The Queen (No 4) [2025] ACTCA 9

Judgment Summary

APPEAL – CRIMINAL LAW – Application to withdraw plea of guilty after conviction – whether insufficient evidence to prove appellant’s guilt beyond reasonable doubt – plea of guilty encompasses acceptance of proof of each necessary element to a charge – sufficient evidence to support plea of guilty – whether denying leave would amount to miscarriage of justice – whether primary judge’s decision attended by error of fact or law – consideration of elements of each charge – error not established – no miscarriage of justice – application for leave to withdraw guilty pleas dismissed

APPEAL – CRIMINAL LAW – Appeal against sentence – child pornography offences – whether sentence was manifestly excessive – whether primary judge erred in failing to consider alternatives to custodial sentence – whether offender’s lack of prior convictions and the low objective seriousness of offending warranted reduced sentence – whether primary judge failed to consider extra curial punishment – where primary judge characterised offences as falling within mid to low range of objective seriousness – such a characterisation does not diminish the significant criminality of the offending – full-time custody warranted to reflect the seriousness of offending – no error in primary judge’s balance of factors favourable to appellant against the importance of deterrence and denunciation – appeal dismissed

The Court of Appeal has unanimously dismissed an appeal against conviction and sentence in respect of a 3-year term of imprisonment imposed for multiple child pornography offences. Leave to withdraw guilty pleas after conviction was refused as the agreed facts were sufficient to establish the elements of each offence, and no miscarriage of justice would arise by allowing the pleas to stand. Regarding the sentence, the CA found no error in the emphasis upon deterrence and denunciation given the nature of the offending.  There was no requirement to expressly refer to every piece of evidence and every alternative sentencing option in the circumstances of the submissions made, no extra-curial punishment was present, and the sentence was not otherwise manifestly excessive.

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28 February 2025

DPP v Aghahosseini [2024] ACTSC 237 (SCC 234 of 2024; SCC 138 of 2024)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – Sexual intercourse without consent – theft – robbery – burglary – assault occasioning actual bodily harm – escape – obtaining property by deception – whether offender’s moral culpability reduced by reason of mental illness – consideration of the discount to be allowed where an offender pleads guilty

The Supreme Court has sentenced an offender to a period of imprisonment of 6 years, 1 month, with a non-parole period of 4 years for numerous offences. The offender was convicted for sexual intercourse without consent, and multiple counts of theft, robbery and burglary. The offender was also convicted for the offence of assault occasioning actual bodily harm, obtaining property by deception and escape.

The Court found that the offences were variously attributable to the offender’s poor mental health and a motivation to fund his illicit substance abuse. In the context of numerous offences, the Court noted it was appropriate for some sentences to be served concurrently, while other sentences should be served cumulatively.

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28 February 2025

DPP v Ierfone [2025] ACTSC 60 (SCC 16 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency without consent – finding of guilt at trial – no criminal history – strong protective factors in the community – good prospects of rehabilitation – period of full-time imprisonment necessary to achieve sentencing purposes – partly suspended sentence imposed

The Supreme Court has sentenced an offender after a jury found him guilty of one count of engaging in sexual intercourse without consent and one count of committing an act of indecency without consent. The offender was sentenced to 2 years and 4 months of imprisonment to be suspended after 4 months upon him entering an undertaking to be of good behaviour order. The offender had no criminal history and strong subjective circumstances, namely a supportive family and a history of ongoing employment, which supported a finding that the offender had good prospects of rehabilitation.

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27 February 2025

Decision Restricted [2025] ACTSC 58

CIVIL LAW – PRACTICE AND PROCEDURE – Application for orders restraining misuse of confidential information – where application brought ex parte – where defendant obtained information under obligation of implied undertaking – whether serious question to be tried – balance of convenience

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to McCallum CJ’s chambers. Associate.McCallumCJ@courts.act.gov.au

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27 February 2025

DPP v Massey [2025] ACTSC 50 (SCC 276 of 2024; 277 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – property and dishonesty offences – application of Bugmy, Verdins, Henry principles – cycle of addiction and offending – weight of rehabilitation in consideration of sentencing factors – demonstrated capability to rehabilitate – different sentencing approach required – insight and remorse to offending – drug and alcohol treatment order imposed

The Supreme Court has sentenced an offender to a drug and alcohol treatment order (treatment order) for property and dishonesty offences committed in mid-2023. The Court considered the offender’s history of addiction and offending, their childhood circumstances, mental health conditions, and early introduction to drug use in assessing the sentence to be imposed. The Court found that in the offender’s circumstances, a different approach to sentencing was required to allow the offender to rehabilitate from drugs and from offending, and to better facilitate community safety. The offender will be subject to the treatment and supervision portion of the treatment order for 18 months, following which they will be subject to a suspended sentence and good behaviour order for a period of 2 years.

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27 February 2025

DPP v Roberts [2025] ACTSC 53 (SCC 324 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – indecent assault on male – historical offences – teacher and pupil – recidivist child sexual abuse offender – advanced age and ill health of offender – delay in prosecution not mitigatory so as to override other sentencing purposes – good character of offender – s 34A Crimes (Sentencing) Act 2005 (ACT) – otherwise good character – sentence of imprisonment imposed with partial suspension

The Supreme Court has sentenced a recidivist child sexual abuse offender to 2 years and 8 months imprisonment, to be suspended after 12 months upon the offender entering into a good behaviour order. The offender was sentenced for three charges relating to historical sexual offences committed against a child in the 1980s. The Court considered no punishment other than imprisonment was appropriate. While submitted on behalf of the offender that the delay in prosecution, advanced age, and ill health could be mitigatory, the Court found it was not so mitigatory as to override the other sentencing purposes.

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26 February 2025

Decision Restricted [2025] ACTSC 47

CRIMINAL LAW – EVIDENCE – Pre-trial application - application to edit Evidence in Chief Interview – context evidence

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Loukas-Karlsson J's chambers.  Associate.Loukas-KarlssonJ@courts.act.gov.au

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26 February 2025

McIver v ACT (No 2) [2025] ACTCA 7

CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Costs – whether proceedings a matter of public importance, involving conduct of Territory previously found to be unlawful – whether “mixed outcome” in proceedings – whether commonality of work involved in hearing claims together – whether judgment assisting in the resolution of other claims ought to have positive costs consequences – outcome of appeal not mixed – matter of public importance raised but brought for pecuniary gain – no departure from the usual rule as to costs

The Court of Appeal has ordered costs to be paid by the appellants in these proceedings in appeal in which they contended that breaches of human rights gave rise to entitlement to compensation.

The appellants argued that a mixed outcome occurred on appeal, that the Court’s resources were saved by the hearing of the claims together, and that the appeal raised an issue of public importance. The Court considered these arguments and decided that a departure from the usual rule as to costs was not warranted.

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26 February 2025

Jolley v Construction Occupations Registrar [2025] ACTSC 55

BUILDING, ENGINEERING AND RELATED CONTRACTS – BUILDING AND CONSTRUCTION – Rectification orders issued to licensees under Construction Occupations (Licensing) Act 2004 (ACT) – whether rectification order can be issued to nominee of corporate licensee – it can

BUILDING, ENGINEERING AND RELATED CONTRACTS – BUILDING AND CONSTRUCTION – Rectification orders – limitation period – order must be issued within 10 years of act that caused contravention – Construction Occupations Registrar issues order within limitation period – application for review – limitation period expires while application for review on foot – whether ACAT precluded from confirming, varying or setting aside and making a new order – it is not

The Supreme Court has given reasons for dismissing most grounds of appeal from a decision of the ACAT, and allowing certain others.

The dispute concerned the validity of rectification orders issued under Construction Occupations (Licensing) Act 2004 (ACT) by the Construction Occupations Registrar – among other findings, the court found that rectification orders can be issued to nominees of corporate licensees and that ACAT are not precluded from reviewing rectification orders that are issued within a limitation period but where such period expires while the review is on foot.

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25 February 2025

DPP v Brooks (a pseudonym) [2025] ACTSC 45 (SCC 57 of 2024; SCC 372 of 2024; SCC 194 of 2011)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Pilot Circle Sentencing List – Elders and Respected Persons Panel – aggravated robbery – assault occasioning actual bodily harm – serious example of an aggravated robbery – imposition of suspended sentences imposed when offender was a child – breach of good behaviour order – failure to comply with supervision – childhood disadvantage – offender assessed as institutionalised – extensive criminal history

The Supreme Court has sentenced an offender to a total period of imprisonment of 5 years and 3 months. The offender was sentenced for the offences of aggravated robbery and assault occasioning actual bodily harm, as well as having suspended sentences of imprisonment imposed due to his failure to comply with the obligations of the attached good behaviour orders in 2015.  The offender was sentenced in the Pilot Circle Sentencing List. The offender had a disadvantaged childhood and was assessed as being institutionalised.

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25 February 2025

Decision Restricted [2025] ACTSC 46

CRIMINAL LAW – EVIDENCE – Pre-trial application - application to edit Evidence in Chief Interview – context evidence

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Loukas-Karlsson J's chambers.  Associate.Loukas-KarlssonJ@courts.act.gov.au

In the matter of an application by Leanne Cover (No 2) [2024] ACTSC 251

COSTS – where plaintiff unsuccessful in application for urgent interlocutory injunction to restrain publication of special report prepared by the Integrity Commission – usual rule that unsuccessful applicant for an interlocutory injunction should pay the defendant’s costs – court’s discretion not fettered by usual rule – where plaintiff constrained in presentation of injunction application by confidentiality regime imposed by defendant.

Walker v Chamberlains Law Firm Pty Ltd [2024] ACTSC 76

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to set aside subpoena to accountant – failed joint venture – where plaintiffs sue solicitors for failure to protect them against financial risks of joint venture – financial position of the plaintiff entities plainly in issue.

Kizmann v De Maine (No 3) [2024] ACTSC 171

CIVIL LAW – PRACTICE AND PROCEDURE – Costs – application for indemnity costs – where offer of compromise by plaintiff not accepted – whether it was unreasonable for the first defendant to have subjected the plaintiff to the expenditure of the hearing – timing of offer of compromise.

DPP v KS (a pseudonym) (No 4) [2025] ACTSC 49

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – drug and alcohol treatment order – objects of order achieved – early graduation from treatment order – young participant  –  rehabilitation achieved – motorbikes –  carpentry –order amended

The Supreme Court has graduated a participant from the supervision part of their drug and alcohol treatment order, moving them to the good behaviour portion of the order. The participant was sentenced in October 2023 and was one of the youngest participants on the Drug and Alcohol Sentencing List, aged 21 at the time of sentencing. The Court reflected on the growth the participant has shown, and the bright future he now holds, choosing to spend his weekends dirt bike riding, camping, and fishing, rather than engaging in offending behaviour. Though his progress on the treatment order was not without bumps along the way, the Court praised the offender for showing an innate strength and determination to build a better life for himself and his family.

TS v DT [2025] ACTCA 6

Judgment Summary

APPEAL – FAMILY VIOLENCE – Appeal of extension to family violence order – whether the primary judge was correct to find the magistrate erred in finding factors outside of s 86 of the Family Violence Act 2016 (ACT) could be taken into account – whether the primary judge was required to undertake a review stricto sensu

The Court of Appeal has dismissed an appeal against the extension of a final Family Violence Order.
In 2021, the Magistrates Court extended a final Family Violence Order under s 86 of the Family Violence Act 2016 (ACT), after taking into account hardship that would be caused to the appellant by extending the order.  On appeal to the Supreme Court challenging the weight given to hardship, it was held that hardship was an irrelevant consideration under the test for extension of a final order. The extension order was confirmed.
Appealing from the Supreme Court’s decision, the appellant argued that the Court did not consider his grounds of appeal. The Court of Appeal held that those grounds of appeal were premised on the understanding that the magistrate should have taken into account the appellant’s hardship. That premise was wrong and accordingly no error was established. The appeal was dismissed.

R v Subasic (No 5) [2025] ACTSC 35 (SCC 261, 262 of 2020; SCC 186, 193, 195, 196, 299, 300 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –treatment order cancelled – resentenced – breach of suspended sentence good behaviour order – not engaging with supervision – further offending – committal of breach to Supreme Court prior to finalisation of Magistrates Court sentence – suspended sentence imposed – parole with rehabilitation program recommendation

The Supreme Court has sentenced an offender to a total period of imprisonment of 3 years and 11 months, imposing a previously suspended sentence. The offender came before the Court following breach of a good behaviour order, both through noncompliance with that order, and through fresh offending. The offender conceded that imposition was the only appropriate course available to the Court, as the suspended sentence the subject of the proceeding was imposed following a resentence in 2023. This occurred after the cancellation of a drug and alcohol treatment order. The Court imposed a nonparole period enabling longer supervision in the community for the offender, with a recommendation to the Sentence Administration Board that he be required to engage with rehabilitative services.

Turner-Choikee v ACT DPP [2025] ACTSC 44

CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court – appeal against conviction – application for leave to appeal out of time – whether the finding was unreasonable and cannot be supported having regard to the evidence – assessment of the credibility of the complainant – error not established – application for leave to appeal out of time refused – appeal dismissed – conviction confirmed

The Supreme Court has dismissed an appeal against conviction from the Magistrates Court in relation to a charge of aggravated common assault. The ground of appeal alleged by the unrepresented appellant was that the Magistrate’s finding of guilt was unreasonable and cannot be supported having regard to the evidence. An application for leave to appeal out of time was determined as part of the substantive appeal. The Court determined that the appeal lacked merit such that the application for leave to appeal out of time was refused. Accordingly, the appeal was dismissed and the conviction was confirmed.

DPP v Death [2025] ACTSC 38 (SCC 342 of 2024; SCC 362 of 2024)

CRIMINAL LAW – Judgment and Punishment – sentence – arson – possession of a prohibited thing as a detainee – where accused in custody at time of offence – whether prosecution case overwhelmingly strong

The Supreme Court has sentenced an offender to 9 months and 5 days’ imprisonment for an offence of arson. The offender was in custody at the time of the offence.  He had pleaded guilty to that offence and a further offence of possessing a prohibited thing as a detainee, namely a cigarette lighter, which was used to commit the arson offence.  Due to the entirety of the incident being captured on CCTV footage, the prosecution case in respect of the arson offence was found to be overwhelmingly strong. The sentence was made partially concurrent as to 3 months with an existing sentence being served by the offender of 1 year 2 months and 22 days.  A non-parole period of 1 year and 17 days was set, which took into account the existing sentence.  In respect of the possession of a prohibited item offence, the offender was fined $200. The offender will be eligible for release on 24 June 2025.

DPP v McKay [2025] ACTSC 42 (SCC 297 of 2024)

CRIMINAL LAW – Judgment and Punishment – sentence – acts of indecency without consent – sexual intercourse without consent – assistance to law enforcement authorities given – steps taken towards rehabilitation – remorse – application of Verdins principles

The Supreme Court has sentenced an offender to a term of imprisonment of 18 months for offending involving sexual intercourse without consent and multiple acts of indecency.  The conduct involved sustained digital penetration.  The offender had pleaded guilty, demonstrated remorse, had no relevant criminal history, and gave assistance to law enforcement authorities. The court took into account his strong subjective circumstances including mental health conditions.  While the sentences for the acts of indecency were fully suspended, in respect of the sexual intercourse offence, the Court determined that it was necessary to serve part of the sentence in full-time custody given the gravity of the offence and to take proper account of the trauma to the victim.

R v Hancock (No 5); DPP v Hancock [2025] ACTSC 31 (SCC 5, 6 of 2021; SCC 271, 272 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence –  breach of suspended sentence imposed after cancellation of drug and alcohol treatment order – drug offending – trafficking – possession – proceeds of crime – rehabilitation – intensive correction order not appropriate – no leniency – imposition and imprisonment with parole order imposed

The Supreme Court has sentenced an offender to a total period of imprisonment of 4 years and 8 months. The Court found a breach of good behaviour order (GBO) proved in relation to the offender, imposed the sentences of imprisonment which were previously suspended, and convicted and sentenced an offender for three further offences committed while the offender was subject to the GBO. The Court found that no leniency could be afforded to the offender in light of previous noncompliance with community-based orders and drug and alcohol rehabilitation opportunities that had been afforded to him. Further, the Court considered the fresh offences committed by the offender to be egregious conduct, those offences including drug offending following the opportunity for a drug and alcohol treatment order. The Court imposed a nonparole period to end on 4 November 2025.

Mao v Ellston [2025] ACTSC 18

APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – appeal alleging conviction based upon plea of guilty involved miscarriage of justice – where appellant agreed to plead guilty to two of six charges in family violence matter – whether appellant understood the nature of the charges pleaded to – whether appellant sufficiently understood the facts admitted by the plea – miscarriage of justice not established

The Supreme Court has dismissed an appeal from the ACT Magistrates Court. The appellant, who had pled guilty in the Magistrates Court and received a Good Behaviour Order, had sought to withdraw his guilty plea, arguing that there had been a miscarriage of justice. The miscarriage of justice was alleged to have occurred (among other things) due to the appellant’s lack of understanding of, and a lack of advice as to, the nature of the charges and facts to which he had pled guilty. The Supreme Court rejected this contention, finding that the appellant did sufficiently understand, and had been advised as to, the nature of the charges and facts the subject of his plea. As such, there had been no miscarriage of justice.

DPP v Warner-Chilstone [2025] ACTSC 40 (SCC 217, 218 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – alcohol fuelled violence occurring at night – offender filmed victim’s injuries for entertainment – young offender – deterrence and denunciation – sentence of imprisonment imposed

The Supreme Court has sentenced an offender for recklessly inflicting grievous bodily harm. The alcohol fuelled offending occurred in the early hours of the morning on a public street. The offender filmed the victim’s injuries for entertainment. The offender was sentenced to a term of imprisonment.

McLean v Adamson [2025] ACTSC 43

APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether the verdict was unsafe and unsatisfactory having regard to the evidence – whether Magistrate erred regarding identification evidence – adequacy of directions – burglary – damage property – error identified – conviction confirmed – appeal dismissed

The Supreme Court has dismissed an appeal against a conviction from the Magistrates Court. The grounds of appeal alleged by the unrepresented appellant was that the Magistrate’s decision was “unsafe and unsatisfactory” having regard to the evidence. The Court found that material legal error was established because the Magistrate did not give themselves the necessary warning in coming to assess identification evidence. However, upon re-hearing of the evidence, the Court was nonetheless satisfied beyond reasonable doubt that the appellant was guilty of the offences of burglary and damage property. Accordingly, the Court confirmed the convictions.

DPP v Hiscox [2025] ACTSC 17

CRIMINAL LAW – BAIL – Application for bail following guilty plea – offender awaiting assessment for Drug and Alcohol Sentencing List (“DASL”) – where offender would, without bail, remain in custody until DASL listing – where s 9D of the Bail Act requires special or exceptional circumstances to enable granting of bail – whether past, non-continuing breach of s 19(2) of the Human Rights Act (accused persons and detainees to be segregated) constitutes special or exceptional circumstance – no special or exceptional circumstances established – bail application dismissed

The Supreme Court has dismissed an application for bail. In so doing, the Supreme Court held that a past, non-continuing human rights breach with no particular adverse consequences to the applicant does not constitute “special or exceptional circumstances … favouring the grant of bail” as required by s 9D of the Bail Act 1992 (ACT). Such circumstances are required where a person is accused of a serious offence whilst a charge against that person for another serious offence is pending or outstanding.
The Supreme Court acknowledged that the applicant (a remandee at the relevant time) had not been segregated from sentenced detainees, which breached his rights under s 19(2) of the Human Rights Act 2004 (ACT). However, this breach was not identified to have given rise to any harm, the breach was not continuing, and there would be no breach in the future if bail were refused. Consequently, the threshold of “special or exceptional circumstances” was not established, and the application for bail was dismissed.

Wang v 1348 Pty Ltd [2025] ACTSC 28

PRACTICE AND PROCEDURE – COSTS – Where time estimate of matter inadequate – where defendant failed to communicate to the court or plaintiff that time estimate inadequate or hearing should not proceed – where defendant only formally indicated position at commencement of hearing – where defendant engaged in procedural ambush contrary to the requirement to assist the court in s 5A(4) of the Court Procedures Act – defendant to pay hearing and preparation costs on indemnity basis

CORPORATIONS – RECEIVERS, MANAGERS AND CONTROLLERS – where receiver had been appointed following application to wind up corporation – where proceedings not able to be finalised due to lack of preparation by defendant – receivership continued with further allowance for fees

The Supreme Court has published judgment in this matter, awarding costs against the defendant corporation. The matter had been listed for a one-day final hearing, but at the morning of the hearing, counsel for the defendant formally indicated for the first time that the defendant contested a number of matters, submitting that a proper estimate for the hearing would be four days.
As a result of this procedural ambush which the Supreme Court found to be contrary to the duty to assist the court in the just and efficacious resolution of disputes according to law, the defendant has been ordered to pay the costs of the hearing, and the preparation for that hearing, on an indemnity basis.

Decision Restricted [2025] ACTSC 32

CRIMINAL LAW – EVIDENCE – application to adduce evidence of complainant’s prior sexual activity – s 76 Evidence (Miscellaneous Provisions) Act 1991 (ACT) - substantial relevance to the facts in issue – application dismissed – late last-minute pre-trial applications

As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Loukas-Karlsson J's chambers.  Associate.Loukas-KarlssonJ@courts.act.gov.au

DPP v Walker [2025] ACTSC 36

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – rehabilitation achieved – object of order achieved – early graduation from drug and alcohol treatment order – commitment to sobriety – fatherhood – horses – order amended

The Supreme Court has graduated a participant from the supervision part of their Drug and Alcohol Treatment Order, moving them to the good behaviour portion of the order. The participant was sentenced in the Drug and Alcohol Sentencing List (DASL) in August 2023, and displayed a steadfast approach to rehabilitation and recovery, graduating six months earlier than the original order contemplated. The Court noted the participant’s commitment to fatherhood and his long-term partner, as well as his many farm animals. It further noted the impact of rehabilitation and sentencing orders promoting rehabilitation on community protection.

Van Eyle v McFarlane [2025] ACTSC 4

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Appeal against sentence imposed by magistrate – whether magistrate erred in treating sexual gratification as an aggravating factor – whether sexual gratification an “inherent characteristic” of an act of indecency – sexual gratification not an inherent characteristic of act of indecency – magistrate did not err

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – whether magistrate erred in not having regard to delay between offence and sentencing – delay itself not mitigatory – sufficient reasons given to demonstrate that magistrate engaged with case presented

The Supreme Court has dismissed an appeal against a sentence given to a masseur by a magistrate for an act of indecency against one of his clients. The Court dismissed the appellant’s argument that sexual gratification is an “inherent characteristic” of an act of indecency, and the delay between the offence and sentencing was not of itself mitigatory.

DPP v Baxter [2025] ACTSC 22 (SCC 239, 240, 283, 284 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – property offences – driving offences – repeat disqualified driving – risk to safety of police and other road users – whether drug and alcohol treatment order appropriate and suitable – prospects of rehabilitation – previous non-compliance with community based orders – addiction from prescribed opioid medication not mitigatory – drug and alcohol treatment order imposed

The Supreme Court has sentenced an offender to a drug and alcohol treatment order (treatment order) for 24 property and driving offences. The Court found that a treatment order was an appropriate and suitable sentencing option for the offender, considering his history of addiction, it’s contribution to the offending, and his prospects of rehabilitation. The offender sought mitigation of the sentence due to an addiction arising from prescription opioid medication, however the Court held that this was not mitigatory in the offender’s circumstances due to already-existing substance use and offending behaviour. As a result of the significant driving offending the subject of the sentence, the offender will be disqualified from holding a licence for a total of 10 years and 4 months.

DPP v Stacker (No 2) [2025] ACTSC 29

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – not guilty because of mental impairment – prosecution agreed special verdict should be entered – whether accused should be detained in custody – referral to ACAT – schizophrenia – aggravated robbery – firearms offence – drive motor vehicle without consent – serious offences – where offender has significant family support

The Supreme Court has found an offender not guilty because of mental impairment in relation to offences of aggravated robbery, possessing an unauthorised firearm, driving unlicensed and driving a motor vehicle without consent. The Court found that the offender was suffering from schizophrenia which had the effect that he did not know his conduct was wrong at the time the offending conduct occurred. The offender has been ordered to submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic order.

Redrouge Nominees Pty Ltd v Canberra Institute of Technology (No 2) [2025] ACTSC 27

PRACTICE AND PROCEDURE – COSTS – Where offers of compromise made by plaintiff, not accepted and no less favourable judgment sum obtained – whether costs should be apportioned due to plaintiff’s lack of success on aspect of argument – whether offer open for period not reasonable in the circumstances – no reason to depart from costs provisions of the Court Procedures Rules on facts

The Supreme Court has awarded costs in a matter. Offers of compromise were made by the plaintiff, not accepted by the defendant and a no less favourable judgment sum was obtained.
The Court Procedures Rules provided for costs on a solicitor and client basis from the day period for acceptance of offer ends. There was no reason to depart from the Rules on the facts, or any reason for apportionment.

Saeedi v Pastrello [2025] ACTSC 26

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – testamentary capacity – where testator elderly – where video recording existed of solicitors taking instructions – where defendant’s objections related to failure of testator to comprehend size of estate  – where video evidence consistent with testator having capacity – where solicitors consider testator had capacity – competing expert evidence – either unresolved dementia or resolved depression with psychotic features – testamentary capacity established

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – knowledge and approval – whether suspicious circumstances – document duly executed by testator with capacity – no suspicious circumstances to displace presumption of knowledge and approval – lack of knowledge and approval not borne out by the facts upon enquiry without aid of presumptions

SUCCESSION – EXECUTORS AND ADMINISTRATORS – Charging and commission clauses – where clause read out and explained to testator and acquiesced to as “understandable” – where Administration and Probate Act authorises a “just” commission for executor’s services – where prospects unlikely of court approving a commission or percentage in addition to the usual professional fees – no independent concern regarding lawfulness of charging clause or its effect on the testator’s knowledge and approval of their will

The Supreme Court has granted probate in solemn form to the executor for a will of the testator dated 18 December 2020.
The will was challenged on the grounds that the testator did not have testamentary capacity and did not know and approve of the contents of the will. A combination of video recording of the making of the will, the opinion of solicitors present when the will was made, and the Court’s assessment of competing expert evidence led to the conclusion that the testator did have capacity and knew and approved of the will.

Prime Capital Securities Pty Ltd v Nusage Pty Ltd (No 2) [2024] ACTSC 119

MORTGAGES – MORTGAGES AND CHARGES GENERALLY – Remedies of the mortgagee – where mortgagor defaulted on loan and order for possession made in favour of mortgagee –common ground that property needs to be sold – application for stay of order to enable mortgagor to sell property on most favourable terms – interim stay granted

PRACTICE AND PROCEDURE – PARTIES – Application for nonpublication order – where grounds for seeking order may become fact in issue in proceedings – interim nonpublication order made

R v Hanson (No 3) [2025] ACTSC 6

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of intensive correction order arising from further offending – whether it is in the interests of justice for the court to cancel the intensive correction order – engagement with Corrective Services and negative urinalyses since July 2024 – order not cancelled

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intensive correction orders – multiple sentences imposed on a single occasion creates question as to whether there is one or multiple intensive correction orders attaching to the sentence – whether all in force intensive correction orders, or all imposed intensive correction orders, are cancelled upon further offending – issues not necessary to decide in present case

The Supreme Court has not cancelled the intensive correction order of an offender. It was not in the interests of justice to do so because, amongst other things, of the offender’s engagement with ACTCS and negative urinalyses for sustained period of time. Whether ICOs attaching to multiple sentences are considered as one ICO or multiple, and whether all in force or all imposed ICOs are cancelled upon further offending, were not necessary to decide on facts.

DPP v Blundell; DPP v Booth [2025] ACTSC 16 (SCC 266, 359 and 360 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary in company – damage Commonwealth property by joint commission – driving while disqualified as a repeat offender – reparation order sought – Bugmy principles applicable to one offender – where full-time imprisonment would cause hardship to other offender’s family – recognizance release orders imposed

The Supreme Court has sentenced two offenders for aggravated burglary in company and damage Commonwealth property by joint commission. The first offender was further sentenced for driving while disqualified as a repeat offender. The Court took into account the first offender’s disadvantaged upbringing, experience of sexual abuse as a child and drug addiction, and the second offender’s lack of criminal history and carer responsibilities. The Court imposed terms of imprisonment for both offenders which were suspended upon their entering into recognizance release orders.

Styche v Bourke [2025] ACTCA 5

Judgment Summary

APPEAL – CRIMINAL LAW – Whether a decision “should not in law have been made” for the purposes of s 219D(c) of the Magistrates Court Act 1930 (ACT) – whether failure to give adequate reasons means that decision “should not in law have been made” – it does

APPEAL – HUMAN RIGHTS – Operation of right not to be tried or punished more than once under s 24 of the Human Rights Act 2004 (ACT) – interpretation of Magistrates Court Act s 219D(c) – provision for a prosecution review appeal either consistent with s 24 because that right is only engaged upon “final” acquittal or alternatively a reasonable limit upon a human right under s 28

APPEAL – CRIMINAL LAW – Whether primary judge erred in her interpretation and application of Liberato – possibility that Liberato provided a basis for acquittal not a sufficient ground in circumstances where magistrate’s reasons attended by legal error

APPEAL – CRIMINAL LAW – Whether primary judge erred in not exercising her discretion to refuse relief on the principle of double jeopardy – whether rehearing in Magistrates Court would constitute abuse of process where accused had been acquitted at first instance – legislature has provided for a prosecution appeal and acquittal where there was an error of law – no abuse of process

APPEAL – CRIMINAL LAW – Whether primary judge was in error in declining to consider proviso in s 219F of the Magistrates Court Act – the proviso provides for consideration of merits of the case but does not require full assessment of facts when appeal is limited to an error of law

The Court of Appeal has dismissed an appeal from the decision of the primary judge that allowed a prosecution review appeal and remitted the matter to the Magistrates Court for further hearing.
Two of the five appeal grounds brought by the appellant argued that the primary judge erred in her construction of s 219D(c) of the Magistrates Court Act 1930 (ACT) and relied on the human right not to be tried more than once as supporting their preferred construction. The Court found these grounds not to be made out; a failure to give adequate reasons constituted an error of law and within that context, found human rights provisions had no work to do.
The remaining grounds were either not made out, or an insufficient basis to allow an appeal in circumstances where the Court agreed with the primary judge that an error of law had occurred at trial.

DPP v Duong [2025] ACTSC 14 (SCC 241 of 2024)

CRIMINAL LAW – Judgment and Punishment – sentence – cultivate commercial quantity of controlled plant – offender in custody for 1 year prior to being sentenced – backdated sentence of full-time custody imposed

The Supreme Court has sentenced an offender to a term of imprisonment of 10 months and 15 days (after a discount of 25% was applied in respect of a plea of guilty) in respect of an offence of cultivating a commercial quantity of a controlled plant (cannabis) with the intention of selling any of the plants or believing that someone else intended to sell any of the plants or their products. The offender was a 54 year-old Vietnamese woman who had been in custody for a year and who was anticipated upon her release to travel to Victoria to face further charges.  This influenced the form of the sentence to be imposed.  The sentence was backdated to take into account pre-sentence custody.

DPP v Hicks [2025] ACTSC 15 (SCC 341 of 2024)

CRIMINAL LAW – Judgment and Punishment – sentence – reckless infliction of grievous bodily harm – youthful offender – rehabilitation prioritised – intensive correction order made.

The Supreme Court has sentenced an offender to a term of imprisonment of 1 year and 7 months to be served by way of an Intensive Correction Order, for a single offence of recklessly inflicting grievous bodily harm.  The Court found that a sentence of imprisonment was necessary to denounce the conduct and give effect to general and specific deterrence, but that having regard to current sentencing practice, those objectives did not necessarily require the sentence to be served by way of full-time custody.  Further, the offender’s drug use and disadvantaged background required targeted intervention in order to promote the offender’s rehabilitation and long-term protection of the community.  Taking into account the offender’s subjective circumstances including a significant mental health disorder, an ICO was determined to be the most suitable means of promoting the offender’s rehabilitation.

DPP v Mathews [2025] ACTSC 11 (SCC 268 of 2024, SCC 269 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – dishonesty offending – property offending – driving offending – attempt to escape offence – breach of good behaviour order – breach of intensive corrections order – whether to impose further treatment order where previously unsuccessful – substantial noncompliance with community based orders – prior criminal history affords no leniency – prospects of rehabilitation – declined to impose treatment order – resentenced – term of imprisonment imposed – rehabilitation through parole.

DPP v Hicks [2024] ACTSC 371 (SCC 42 of 2024, SCC 43 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – damaging a police vehicle – aggravated, furious, reckless driving – nature and circumstances of offences – community concern for this type of offending – totality – consideration of time in custody – prospects of rehabilitation outside of the ACT – suspended sentence and good behaviour order imposed.

Walker v Walker (No 2) [2025] ACTSC 9

SUCCESSION – testamentary capacity – family provision – where testator in cognitive decline – whether will invalid for lack of testamentary capacity or lack of knowledge and approval – where will provided widow with life interest in family home and three daughters with residual interest – whether failure to make proper provision out of the will for adult daughter.

SUCCESSION – family provision – claim by adult child for provision from deceased’s estate under Family Provision Act 1969 (ACT) – where proceedings not commenced within time – whether sufficient cause shown to extend time – where no prejudice as a result of the delay – where there is an arguable case for provision – extension of time granted – where will gave life interest in family home to wife – whether adequate provision made for plaintiff’s proper maintenance and advancement in life.

EQUITY – undue influence – unconscionability – whether transfer of half interest in family home to second wife should be set aside – whether relationship of ascendancy of wife over husband – whether gift of half share of family home to wife of 25 years improvident – whether husband in position of special disadvantage – whether wife unconscientiously exploited special disadvantage.

The Supreme Court has considered but dismissed challenges to the validity of a will executed in 2018 by a man who died in 2019.  The challenge was brought by one of the testator’s daughters.  The Court found that the testator had testamentary capacity and knew and approved of the contents of the will at the time he executed it.  The Court further found that an inter vivos gift of a half interest in the family home made by the testator to his wife was not procured by either undue influence or unconscionability.  However, the testator’s daughter was partly successful in her claim for family provision, with the Court finding that adequate provision had not been made and awarding a lump sum of a $50,000 advancement in favour of the plaintiff.

Core Building Group Pty Ltd v Dickson Developments Precinct 5 Pty Ltd [2024] ACTSC 93

CIVIL LAW – PRACTICE AND PROCEDURE – Application to strike out pleading – whether pleading disclosed any reasonable cause of action or was frivolous, scandalous, unnecessary and/or vexatious – building contract – where developer served notice certifying date of practical completion 175 days after contractual date triggering builder’s liability for liquidated damages  – where builder alleges superintendent represented notice would not be relied upon – where developer later called on security bond for liquidated damages in reliance on notice – whether pleading disclosed any reasonable case that builder suffered any loss.

The application was dismissed.

R v Roy (No 3) [2025] ACTSC 5

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY – where accused charged with offences relating to child abuse material – where charges based on items seized during execution of search warrants – whether evidence obtained in consequence of impropriety or contravention of a law of Australia – where police obtained information that child abuse material was available for sharing on a peer-to-peer network at a specified IP address – where authorised disclosure by internet service provider revealed IP address was assigned to the accused at the relevant times – where information concerning IP address was provided by nonprofit non-law enforcement organisation based in Florida – whether AFP responsible for any offence committed by non-profit organisation in Florida – whether search of database by AFP was a warrantless search – whether process of obtaining information entailed unlawful interception of a communication passing over a telecommunications system – whether application for or execution of search warrants involved any impropriety – whether investigation involved any breach of the human rights of the accused – whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

R v Roy [2023] ACTSC 174

The publication restriction has been lifted.

CRIMINAL LAW – APPLICATION – application by accused for conditional temporary stay of criminal proceedings – where legal costs incurred unnecessarily as a result of delays in preparation of prosecution brief and changes in tack in prosecution case – whether wasted costs reflect the usual vicissitudes of defending criminal proceedings

The Supreme Court has granted an application for a temporary stay of proceedings until a portion of the accused’s costs is compensated by the Commonwealth Director of Public Prosecutions (CDPP). The accused, who is charged with 90 child pornography offences, sought costly expert advice and the preparation of an expert report, which was rendered unnecessary when the prosecution filed a significantly amended indictment.

The Court declined to award costs for expenses which it considered part of the normal vicissitudes of conducting complex criminal proceedings, particularly where the prosecution is complex and involves a large volume of material, as there is in the present case.

However, the Court temporarily stayed the proceedings on the basis that the CDPP should pay for the costs incurred by unreasonable omissions from the original indictment. The matter was adjourned for parties to submit as to the quantum of costs to be awarded.

DPP v Barnes (No 2) [2024] ACTSC 240 (SCC 156 of 2023; SCC 157 of 2023; SCC 149 of 2024; SCC 150 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – Review – possess prohibited firearm and ammunition – going equipped for theft – offences committed while on treatment order – whether to resentence or impose original sentence – consideration of Bugmy and Verdins principles – previous attempts at rehabilitation unsuccessful – treatment order cancelled and original sentence imposed – nonparole period imposed.

DPP v Dunn [2025] ACTSC 8 (SCC 334 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – Bugmy and Verdins considerations – victim is offender’s mother – where offender demonstrated substantial remorse – offender taken steps to address his alcohol abuse – where victim and offender expressed desire to reconnect – restorative justice referral made – suspended sentence imposed with good behaviour order and conditions to engage in mental health treatment and family violence treatment.

The Supreme Court sentenced an offender for aggravated assault occasioning actual bodily harm. The Court took into account the offender’s background of substance abuse and mental health challenges, as well as the offender’s remorse and steps to rehabilitation. The Court imposed a suspended sentence and made a restorative justice referral.

DPP v Jacka [2024] ACTSC 376 (SCC 154 of 2024; SCC 155 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – aggravated burglary – aggravated robbery – assault – damage property offences – recidivist robbery offender – objects and nature of a treatment order – prosecution case not overwhelmingly strong – moral culpability reduced with reference to childhood disadvantage and early addiction – administration of a treatment order – drug and alcohol treatment order imposed.

DPP v Longmore [2024] ACTSC 278 (SCC 118 of 2024; SCC 119 of 2024)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – assault – aggravated robbery – arson – driving offences – boundaries of Bugmy principles – early substance use – moral culpability – injuries sustained during offence – extra-curial punishment – consideration of totality and s 12A of the Crimes (Sentence) Act 2005 (ACT) – rehabilitation efforts while in custody – connection to culture – art – significant prospects of rehabilitation – drug and alcohol treatment order imposed.

DPP v Sheather (No 4) [2024] ACTSC 403 (SCC 124 of 2021, SCC 125 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of good behaviour order – breach not a serious example – offender on pathway to rehabilitation – futility in supervision – drain on judicial system resources – resentenced to suspended sentence – good behaviour order imposed – no further supervision.

Fares v DPP (No 2) [2025] ACTCA 2

APPEAL – CRIMINAL LAW – Appeal against sentence – where appellant sentenced for attempting to obtain financial advantage by deception – co-offender – whether sentence was manifestly excessive – whether primary judge erred by failing to have regard to suitability assessment for intensive correction order – whether disparity between co-offenders’ sentences gives rise to a justifiable sense of grievance – whether primary judge failed to give adequate reasons for decision – differences between ACT and NSW legislative framework for making intensive correction order – no grounds of appeal established – appeal dismissed

The Court of Appeal unanimously dismissed an appeal against sentences imposed for attempting to, and for being knowingly concerned with an attempt to, obtain a financial advantage by deception. The appellant relied on numerous grounds of appeal, the principal ground pertaining to the sentencing judge’s failure to have regard to the appellant’s assessment for suitability for an intensive correction order. The Court of Appeal held that Stanley v Director of Public Prosecutions (NSW), as relied on by the appellant, did not apply due to the substantive differences between NSW and ACT legislation in respect to making intensive correction orders.

R v Montgomery (No 3) [2024] ACTSC 409 (SCC 304 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – re-sentence – mental health considerations – judicial system resources – suspended sentence – removal of supervision

DPP v Chifuntwe [2024] ACTSC 359 (SCC 284 of 2023; SCC 285 of 2023; SCC 245 of 2024; SCC 246 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –aggravated dangerous driving and driving whilst disqualified as a repeat offender – breach of suspended sentence – failing to stop for police – peculiar nature and circumstances of the offending –history of drug dependency and substance abuse – deterrence and denunciation of conduct – elevated significance of community protection – sentence of imprisonment imposed

Michael Wilson & Partners Ltd v Nicholls (No 14) [2025] ACTCA 1

APPEAL – SECURITY FOR COSTS – Application to discharge order for security for costs – claim that successful party net debtor of unsuccessful party – onus of proof – discretionary matters - whether matters now advanced differ from those addressed in earlier judgment of the Court – matters raised by applicant identical or variations on previous submissions to the Court

APPEAL – COSTS – application for indemnity cost orders to be assessed on a gross sum basis – application for solicitor to pay indemnity costs orders personally pursuant to r 1753 and pursuant to the Court’s inherent jurisdiction – application for party/party cost order to be assessed on a gross sum basis

Jeffcott v Davesi Construction Group Pty Ltd (No 3) [2025] ACTSC 1

PRACTICE AND PROCEDURE – APPLICATION – Application by defendant for stay of judgment of primary judge pending appeal by defendant – winding up proceedings initiated by plaintiff based on judgment – where prospects of appeal not obviously strong but arguable – where no financial evidence led by defendant company or those standing behind it – stay not granted

The Supreme Court has dismissed an application in proceeding seeking to stay orders of the trial judge pending an appeal by the defendant and in circumstances of winding up proceedings based on the trial judgment being brought by plaintiff. The defendant’s prospects on appeal were not obviously strong but arguable, but the court did not grant a stay in the absence of evidence of the financial impact of staying the trial judge’s orders on the defendant.

Ezekiel-Hart v The Council of the Law Society of the ACT [2024] ACTCA 40

APPEAL – CIVIL LAW – application for leave to appeal – appeal from interlocutory decision – leave refused

The Court of Appeal has dismissed an application for leave to appeal against an interlocutory decision in the ACT Supreme Court. The primary judge dismissed an application by the Applicant seeking orders for the issuing of subpoenas to the defendants and restraining the first to sixth defendants from proceeding with a disciplinary proceeding in the ACAT. Loukas-Karlsson J found that there was no sufficient doubt, and that substantial injustice would not result if leave were refused.

DPP v Wolter (No 3) [2024] ACTSC 200

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – review – s 80ZE cancellation of drug and alcohol treatment order – imposition or resentence – breaches of treatment order obligations – substantial efforts at rehabilitation – resentence – suspended term of imprisonment imposed – good behaviour order.

DPP v Cringle [2024] ACTSC 357 (SCC 168 of 2023, SCC 169 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – premeditation, planning, and targeting of the victim – activated taser and firearm – stolen vehicle – breach of suspended sentence – entrenched drug dependency – relevant criminal history – prospects of rehabilitation – institutionalisation – appropriate supervision upon release

DPP v Majeed [2024] ACTSC 281 (SCC 58 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – stealing a vehicle with threatened use of a knife – parity – guarded prospects of rehabilitation – period of imprisonment imposed – moderately early nonparole period

DPP v Bowman (No 2) [2024] ACTSC 415 (SCC 304 of 2022)

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – Sentence – review – s 80ZE cancellation of drug and alcohol treatment order –material change in circumstances – continuation not likely to achieve objects – imposition or resentence – poor level of compliance with treatment order –  motivation to rehabilitate – sentence imposed

The Nominal Defendant v Gibb [2024] ACTSC 418

CIVIL LAW – APPEAL – Appeal from Magistrates Court – collision between motor vehicle and cyclist – whether vehicle involved is an unidentified vehicle within the meaning of s 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT) – whether respondent experienced shock – whether respondent undertook reasonable inquiry and search – whether respondent appreciated the extent of his injuries.

The Supreme Court has dismissed an appeal against a finding made in the Magistrates Court. The Court was asked to determine whether a vehicle involved in a collision is an unidentified vehicle within the meaning of section 62 of the Road Transport (Third Party Insurance) Act 2008 (ACT). The appellant relied on numerous grounds in appealing the Special Magistrate’s decision that the answer was ‘yes’. The appeal was dismissed and the answer to the question was confirmed to be ‘yes’.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 7) [2024] ACTCA 39

APPEAL – JURISDICTION – Application to strike out appeal – where self-represented director of appellant company filed notice of appeal without leave to represent company – whether appeal incompetent – where irregularity not a matter affecting competency – application dismissed.

Ghiasvand v Concrete Menders Pty Ltd [2024] ACTSC 416

PRACTICE & PROCEDURE – STAY OF JUDGMENT – appeal from Magistrates Court pending – where serious issue for determination exists – stay granted upon payment of security – whether security should include security for costs of appeal – where no application for security for costs before the court – security limited to proportion of judgment obtained in court below.

Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38

Judgment Summary

CIVIL LAW – PRACTICE AND PROCEDURE – Appeal – removal of parties – whether defendant had been inappropriately or unnecessarily joined – appeal against order of primary judge removing a party – whether error by primary judge – whether there were any facts or basis in law for the action against the defendant/respondent – no such facts or law – appeal dismissed.

Estate of Jakov Pavic [2024] ACTSC 414

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Forfeiture under public policy rule – application for judicial advice – will made by the testator establishing testamentary trust to benefit wife then son and daughter – son of testator unlawfully kills his mother – whether forfeiture rule prevents son from being a beneficiary of the testamentary trust – whether distribution of estate to daughter appropriate

The Supreme Court has ruled that the administrator of an estate, being the daughter of the testator, is the sole remaining lawful beneficiary and is justified in distributing to herself any and all assets remaining in the estate. The testator’s will had established a testamentary trust to benefit his wife, and then his son and daughter. The testator’s son was later convicted of manslaughter for the killing of his mother. The court considered the application of the forfeiture rule and whether it prevented the son from being a beneficiary of the testamentary trust in those circumstances.

Decision Restricted [2024] ACTSC 413

The catchwords of that judgment are set out below. As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Baker J’s chambers.  Associate.BakerJ@courts.act.gov.au

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tendency evidence – application to adduce tendency evidence of three different complainants and one witness – ‘stealthing’ – overly broad tendency notice – where particularised tendencies did not have significant probative value against the facts in issue – tendency application must be determined on the basis of the tendencies particularised in the tendency notice – application dismissed.

Bullock v Grant [2024] ACTSC 397

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Objection by defendant to allowing plaintiff access to material produced under subpoena – material related to superannuation benefits paid to deceased’s youngest child – material relevant to circumstances of competing claimant for bounty of testator – material relevant to question of whether adequate provision made – uncontroversial redactions allowed – access granted to both parties – costs consequences where objection unsustainable.

The Supreme Court has rejected an objection by the defendant to allowing the plaintiffs access to material produced under subpoena. The material related to superannuation benefits paid to deceased’s youngest child, which was relevant to the question of whether adequate provision had been made under the deceased’s will to his other children. The court noted that the objection was unsustainable and, after allowing some uncontroversial redactions to be made to the material, granted access to both parties. The court granted the costs of the subpoena and appearances to the plaintiffs, remarking that “If a party does take an unsustainable point, costs consequences follow.”

In the Estate of Grant Edward Flitton [2024] ACTSC 410

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Applicant seeks opinion, advice or direction of the court – deceased left no will – amount remaining in estate not insubstantial – sole beneficiary identified – whether justified in distributing estate – no opinion of counsel or written submissions – applicant directed to file any further evidence, any submissions, or any opinion of counsel.

The Supreme Court has directed an applicant to file any further evidence, any submissions, or any opinion of counsel in relation to an application for the opinion, advice or direction of the court. The advice sought was in relation to the distribution of an estate where the deceased had left no will, a sole beneficiary had been identified, and the amount remaining in the estate was not insubstantial.

Berhero Pty Ltd v Hinds (No 2) [2024] ACTSC 377

COSTS – PRACTICE AND PROCEDURE – Whether a party acted ‘so unreasonably’ –  where application consented to – plaintiff no longer had a caveatable interest –  further order required to remove caveats under an earlier court order – earlier court orders sought and obtained by plaintiff – plaintiff’s solicitor represented plaintiff through town agents at the time – requirement for further order unappreciated by the plaintiff’s solicitors until informed by defendants’ solicitors – plaintiff behaved ‘so unreasonably’ – plaintiff to bear the defendants’ costs on party-to-party basis.

The Supreme Court has ordered a plaintiff to pay the defendants’ costs of an uncontested application. The plaintiff’s solicitors were not aware of the legal requirement for a further court order to remove caveats, despite being the solicitors for the plaintiff at the time the caveats were ordered by the Court to be “until further order of the Court”.

Law Society v Ford (No 2) [2024] ACTSCFC 2

LEGAL PRACTITIONERS – DISCIPLINE – Application for removal from the roll of legal practitioners – recommendation by ACAT that defendant be removed from the roll of legal practitioners for professional misconduct and unsatisfactory professional conduct – whether defendant is a fit and proper person to practise law – where defendant shows no insight into inadequacies of his own conduct – unfitness indefinite – defendant’s name removed from the roll of legal practitioners

PRACTICE AND PROCEDURE – JURISDICTION – Factual findings by ACAT of professional misconduct and unsatisfactory professional conduct – defendant sought to have Supreme Court conduct fresh fact-finding – inconsistent with statutory regime to permit unchallenged finality reached as part of ACAT process to be undermined in subsequent proceedings – factual findings of ACAT to be applied by Supreme Court in determining fitness to remain on the roll

PRACTICE AND PROCEDURE – JURISDICTION – Whether Supreme Court has jurisdiction to hear and determine proceedings – submission by defendant that original decisions of Law Society invalid – submission that all subsequent proceedings, including present proceedings, were without jurisdiction – filing of ACAT orders under s 431(3) of Legal Profession Act 2006 (ACT) enlivens jurisdiction of Supreme Court to consider removal from the roll – separate statutory rights of appeal to Appeal Tribunal of ACAT and Supreme Court – no orders made in appeals or properly constituted judicial review proceedings setting aside ACAT orders – not open to seek prerogative relief by application in current proceedings

The Supreme Court has removed the name of a legal practitioner from the roll of legal practitioners. The practitioner was removed following findings by the ACAT that he was guilty of professional misconduct and unsatisfactory professional conduct. In deciding to remove the practitioner’s name, the Court held that he was not a fit and proper person to practise law and that he showed no insight into the inadequacies of his own conduct.

The practitioner had sought to have the Court conduct fresh fact-finding. However, the Court found that it would be inconsistent with the statutory regime to permit the unchallenged finality reached as part of the ACAT process to be undermined in subsequent proceedings.

The practitioner also submitted that the original decisions of the Law Society was invalid, and so all subsequent proceedings were without jurisdiction.  The Court noted that the practitioner had separate statutory rights of appeal to the Appeal Tribunal of the ACAT and the Supreme Court, but that no orders had been made in appeals or properly constituted judicial review proceedings setting aside the ACAT orders. It was, therefore, not open to the practitioner to seek prerogative relief by application in these proceedings.

DPP v Alfred (a pseudonym) [2024] ACTSC 341 (SCC 250 of 2023, SCC 31 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission aggravated burglary and aggravated robbery – juvenile offences – joint commission aggravated burglary and attempted theft – breach of suspended sentences – substantial criminal history – significant childhood deprivation and disadvantage – substance abuse and mental health disorders – consideration of s 133C Crimes (Sentencing) Act 2005 (ACT) re juvenile offences – prospects of rehabilitation poor despite relative youth – sentence of imprisonment imposed – suspended sentences restored.

Gang v You [2024] ACTCA 37

Judgment Summary

APPEAL – CIVIL – CONTRACT – where appellant claimed to have entered into merger agreement with respondent – oral agreement – whether primary judge erred in not accepting appellant’s evidence

APPEAL – EQUITY – where solicitor retained by respondent to act on conveyance – whether solicitor also acted for appellant – whether primary judge erred in factual findings concerning sale of house

The Court of Appeal has dismissed an appeal from a decision of the Supreme Court dismissing a claim concerning an alleged merger agreement. Mr Gang brought proceedings in the Supreme Court arising out of his dealings with Mr You. Mr Gang claimed that Mr You approached him with a suggestion that Mr Gang’s tiling company should merge with Mr You’s construction company. Mr Gang also claimed he sold his house to Mr You on the understanding he could repurchase it within 3 years, when in fact the contract included no such term. Mr Gang further contended that the solicitors breached a fiduciary duty to protect him from that outcome.

The primary judge dismissed both claims, including the claim against the solicitors. Mr Gang appealed to the Court of Appeal with a Notice of Appeal specifying 61 grounds of appeal. The Court of Appeal held that the primary judge’s reasoning concerning the alleged merger agreement was thorough, cogent and without error. The claims concerning the sale of the house and alleged breach of fiduciary duty on the part of the solicitors were also rejected. The appeal was accordingly dismissed.

DPP v Howarth [2024] ACTSC 322 ( SCC 328 of 2023; SCC 329 of 2023)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – breach of family violence order – assault occasioning actual bodily harm – unlawful choking rendering unconscious – unlawful choke, strangle or suffocate – offences aggravated by family violence – significant pre-sentence custody – intoxication contributing feature – some steps taken towards rehabilitation in custody – moral culpability reduced because of childhood exposure to alcohol abuse and violence – some moderation of general deterrence as sentencing consideration – sentence of imprisonment imposed

The Supreme Court has sentenced an offender to 5 years, 3 months imprisonment with a non-parole period of 2 years 9 months, for breach of FVO, intentional and unlawful choking (including one count of choking rendering insensible) and assault occasioning actual bodily harm. Each offence was inflicted on an ex-partner and was aggravated by FV. The Court considered the steps that the offender had taken while in custody to rehabilitate his long-standing alcohol abuse issues, and accepted that the offender’s moral culpability would be reduced because of childhood exposure to alcohol abuse and violence. These considerations were balanced against the need for robust general deterrence in light of the objective seriousness of the offences, particularly where non-fatal strangulation by a domestic partner operates as a predictive risk factor for intimate partner homicide.

In the Estate of Wendy Poole (deceased) (No 2) [2024] ACTSC 388

SUCCESSION – EXECUTORS AND ADMINISTRATION – Administration – applications by beneficiary seeking documents concerning estate administration and adding debtors as parties to proceedings – where estate attempting to recover from debtors – applications dismissed by consent upon executor commencing proceedings against debtors the day before the hearing – not appropriate to make orders as to costs of the applications.

The Supreme Court has dismissed two applications brought by a beneficiary under a will seeking documents concerning estate administration and adding debtors as parties to proceedings. The applications were brought because the executor of the estate had taken no steps to recover money owed to the estate by various debtors. The applications were dismissed by consent upon the executor commencing proceedings against debtors the day before the hearing. In the circumstances, the court considered it was not appropriate to make orders as to costs of the applications.

AFP v Vilayur [2024] ACTSC 406

CRIMINAL LAW – CONFISCATION OF CRIMINAL ASSETS – Application for examination orders under Proceeds of Crime Act 2002 (Cth) – application made by Commissioner in response to application made by defendants for exclusion of property from restraint and forfeiture – hearing of applications to exclude property statutorily required to occur after responsible authority has had a reasonable opportunity to conduct examinations – no statutory basis for opposition by defendants as to scope of examination orders being limited to facts underlying criminal convictions – examination orders granted.

The Supreme Court has allowed an application for examination orders under the Proceeds of Crime Act 2002 (Cth). The application was made by the Commissioner of the AFP in response to an application made by the defendants for exclusion of property from restraint and forfeiture. Hearing of an application for exclusion of property could not occur under the legislation until after the responsible authority has had a reasonable opportunity to conduct examinations. There was no statutory basis for the defendant’s argument that the scope of examination orders should be limited to the facts underlying a criminal conviction, and the examination orders were granted.

DPP v Davidson (a pseudonym) (No 3) [2023] ACTSC 334

The publication restriction has now been lifted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ground rules hearing for witness in proceedings – s 4AB(2) Evidence (Miscellaneous Provisions) Act 1991 (ACT) –  recommendations of witness intermediary adopted.

McIver v ACT [2024] ACTCA 36

Judgment summary

CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Whether s 18(7) of Human Rights Act 2004 (ACT) creates freestanding cause of action for compensation or damages – clear legislative intention not to create freestanding cause of action – no right to damages impliedly created where one did not previously exist – held no directly enforceable entitlement to damages or compensation established

CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Whether "unlawfully ... detained" in s 18(7) of Human Rights Act 2004 (ACT) covered circumstances where detention was lawfully justified by sentence of imprisonment but there was a breach of the law in relation to conditions of detention – applicants assert conditions of detention breached Human Rights Act and Corrections Management Act 2007 (ACT) – held "unlawfully ... detained" relates to the legal justification for the deprivation of liberty and does not extend to any breaches of the law relating to the conditions of the detention

The Court of Appeal has granted leave to appeal on two applications seeking to appeal from an interlocutory decision of the ACT Supreme Court refusing leave to commence proceedings out of time. However, the Court dismissed both appeals.

Both applications were brought by convicted prisoners housed in the Alexander Maconochie Centre (AMC). Each sought declaratory relief in relation to asserted breaches of their human rights while detained in the AMC.

The Court held that no directly enforceable entitlement to damages or compensation had been established by s 18(7) of the Human Rights Act 2004 (ACT), and that that "unlawfully ... detained" related only to the legal justification for the deprivation of liberty and did not extend to any breaches of the law relating to the conditions of the detention. The Court noted the clear legislative intention not to create a freestanding cause of action and not to impliedly create a right to damages where one did not previously exist.

In the Estate of Christine Leanne Farrell [2024] ACTSC 382

WILLS, PROBATE & ADMINISTRATION – RECTIFICATION –– Principles of rectification pursuant to s 12A of the Wills Act 1968 (ACT) – whether will ought to be rectified so as to give effect to testator’s probable intention – where testator’s will executed in the UK – where testator subsequently moved to Australia – property purchased in Australia

Higgins v ACT (No 2) [2024] ACTSC 400

EQUITY – Leases – scheme of development – whether common vendor – whether reciprocity of obligations established – whether any scheme enforceable against a lessee that was years later in time and without notice on title

EQUITY – Non-derogation from grant – whether Territory (and statutory authority) under obligation not to permit the use of golf course land in a way that would render the plaintiff’s land materially less fit for the purpose for which the lease was granted

CONSUMER LAW – Misleading and deceptive conduct – whether representations made about use of land for a golf course were based on reasonable grounds

The Supreme Court has delivered judgment in respect of a claim in equity concerning a golf course located within the Harcourt Hill Estate in Nicholls.  A scheme of development was found to have been created in respect of the Estate, which prevented the use of the golf course land for anything other than a golf course and associated facilities.   The scheme was further found to be enforceable as against the Territory and the entity that was formerly the ACT Planning and Land Authority.

The plaintiff had further argued that the current lessee of the golf course land, Gungahlin Golf Investments Pty Ltd, was also bound by the scheme of development.  The Court found that the scheme was not enforceable against the current lessee.

Other alternative claims in equity and for misleading and deceptive conduct were not made out.

Wu v Wu (No 3) [2024] ACTCA 35

COSTS – costs on appeal and at first instance – where appeal allowed – application to vary costs order – whether appellant succeeded on point not argued at first instance – whether respondent substantially successful on appeal.

The Court of Appeal has refused an application to vary a costs order previously made in Wu v Wu (No 2) [2024] ACTCA 29. The Court rejected an argument that the appellant succeeded on a point not advanced at trial and relied on general costs principles to find that the appellant was substantially successful in respect of both the proceeding at first instance and on appeal.

Benz v Baldock [2024] ACTSC 399

APPEAL – CRIMINAL – unauthorised camping on unleased National Land – whether person sleeping in car constituted camping – whether carpark was on National Land and subject to Australian Capital Territory National Land (Unleased) Ordinance 2022 – whether Ordinance properly authorised.

The Supreme Court has allowed an appeal from the Magistrates Court, which had found the appellant guilty in respect of a single offence of unauthorised camping on unleased National Land. The appellant had slept in his car overnight in an unrestricted car park on Barrenjoey drive in Canberra in 2023. Among numerous grounds of challenge, he succeeded in establishing that his conduct did not constitute “camping” under the relevant legislation. Accordingly, the finding in the court below was set aside and the charge was instead dismissed.

Topic v DPP [2024] ACTSC 398

APPEAL – CRIMINAL – Review appeal from Magistrates Court – drive while licence suspended – appellant had received infringement notices and reminders from Access Canberra for a speeding charge – mail unopened and sent back as unclaimed – right to drive in ACT automatically suspended for non-payment of fine – where speeding charge ultimately withdrawn – whether magistrate erred in finding appellant guilty – appeal dismissed.

The Supreme Court has dismissed an appeal from the Magistrates Court, which had found the appellant guilty of the offence of driving while his right to drive in the ACT was suspended. The appellant had received, but not opened, mail from Access Canberra notifying him of a camera detected infringement notice.  As a result, he did not contest the notice, nor pay the fine contained in the notice. Accordingly, his right to drive in the ACT was suspended for non-payment of the fine.

The appellant then drove in the Territory on 30 March 2023 and was arrested and charged.

On appeal the appellant challenged the Constitutionality and validity of the statutory regime under which the original speeding fine and subsequent suspension for non-payment of the fine were issued.

The Supreme Court found that while the speeding charge was ultimately dismissed, the suspension of the appellant’s licence in the meantime was lawful and that no defence of mistake of fact applied.  Accordingly, there was no error in the magistrate finding the appellant guilty of the charge.

DPP v Clarke (No 3) [2024] ACTSC 395 (SCC 297 of 2022; SCC 298 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of intensive correction order – commission of further offences and illicit substance use – whether intensive correction order covering sentences for two offences to be treated as one order – non-parole period applicable dates – whether cancellation of the ICO is not in the interests of justice – determination to cancel intensive correction order

The Supreme Court has cancelled an offender’s intensive correction order after the offender breached it through using illicit substances and committing fresh driving offences, of a similar nature to the offences he was originally sentenced for. The remaining period of the offender’s original sentence was imposed, with the non-parole period set to expire in April 2025.

DPP v Davidson (a pseudonym) (No 2) [2023] ACTSC 303

The publication restriction has now been lifted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application for witness intermediary for witness – s 4AJ Evidence (Miscellaneous Provisions) Act 1991 (ACT) – witness intermediary to be appointed for the witness – ground rules hearing to be held.

Plant (a pseudonym) v Steele [2024] ACTSC 389

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Where Magistrate refused a stay of summary proceedings - whether appeal incompetent – whether leave should be granted to bring judicial review proceedings – impact of legislation increasing the age of criminal responsibility

The SC has dismissed an appeal from a decision of the Children’s Court dismissing an application to have criminal proceedings against the appellant permanently or temporarily stayed. The appellant was 13 when she allegedly committed an offence. The age of criminal responsibility will be increased to 14 from July 2025.  The appellant contended that, in the meantime, the prosecution of a 13-year-old child is an abuse of process because the legislature has recognised that a child under 14 is incapable of forming criminal intent.  The DPP contended that the appeal was “incompetent” (meaning fatally flawed).  The Court held that there is no right of appeal to the Supreme Court from a Magistrate’s decision to grant or refuse a stay.  The only remedy is to seek judicial review, which requires the establishment of jurisdictional error or error of law on the face of the record. The appeal was dismissed for that reason.  The Court indicated that any such application would have failed in any event because there was no error in the Magistrate’s decision.  A change in the law effective on a future date does not invalidate the law as it presently stands.  The Children’s Court was entitled, and indeed obliged, to apply the existing law, as was the DPP in making her decision to prosecute.

DPP v Loughton [2024] ACTSC 25

The publication restriction has been lifted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – Admissibility – Tendency Evidence – s 97A Evidence Act 2011 (ACT) –Tendency evidence of a similar character involving the same complainant.

The Supreme Court has ruled that the incidents listed in the tendency notice are admissible as tendency evidence. The accused is charged with various counts of acts of indecency and incest. The tendency evidence is of a similar character, involved the same complainant and occurred within a limited, fourteen-month window. The Court found that the probative value of the evidence outweighs the unfair prejudice from its admission.

DPP v Al Kinani [2024] ACTSC 385 (SCC 337 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – possess device etc for making false documents – money laundering – theft – where childhood disadvantage – where no application for drug and alcohol treatment order made.

The Supreme Court has sentenced an offender to a total effective term of imprisonment of 1 year, 11 months and 1 day, with a 12-month non-parole period, for offences arising out of the theft of an EFTPOS machine from the Canberra Labor Club, and the use of the machine to obtain more than $16,000, with an attempt to obtain more than $50,000.  The offender also pleaded guilty to possessing a device for making false documents, being a card printer, and money laundering.  As the offender had already spent 5 months in custody, he will be eligible for parole in June 2025.

Donnelly v Lester [2024] ACTSC 393

APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether the verdict was unreasonable or unsupported by the evidence – whether the Magistrate erred regarding lawfulness of the arrest of a second person – whether the Magistrate erred in finding the appellant to have been lawfully arrested – resist public official – obstruct public official –police conduct – breach of the peace – appeal upheld – findings of guilt set aside.

The Supreme Court has upheld an appeal against conviction from the Magistrates Court. The grounds of appeal each related to the lawfulness of the arrests of the appellant and her associate. The Court found that the police did not have a lawful basis to arrest the appellant or her associate for a breach of the peace. Accordingly, the appellant’s charges for resisting and obstructing public officials while effecting those arrests could not be found proved as the public officials were not lawfully exercising their functions at the time. The Court set aside the findings of guilt recorded in the Magistrates Court and entered findings of not guilty.

DPP v Kayvanshokoohi [2024] ACTSC 386 (SCC 328 of 2024; SCC 329 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –making threats to endanger and to kill – aggravated dangerous driving – trafficking controlled drug – damage to property – common assault – offender on methylamphetamines and experiencing psychosis at the time of offending – where mental health contributed to offending – whether bail conditions amounted to quasi-custody

The Supreme Court has sentenced an offender to a total effective term of imprisonment of 2 years 6 months and 8 days for numerous offences arising out of a short spree of offending in May 2024, which culminated in three police pursuits, while the offender was under the influence of methylamphetamine.

The offender pleaded guilty to assault, damaging property, making demands with threats to kill and endanger life, drug trafficking and aggravated dangerous driving.  The Court found that the offences were serious, but took into account the quasi-custodial conditions of bail, including a residential drug rehabilitation program the offender had undertaken in between the date of his offending and sentence.  The Court gave weight to the opportunity for reform through completing the present rehabilitation program while in the community, and suspended the sentence of imprisonment after taking account of time already spent in custody.

DPP v Job [2024] ACTSC 367 (SCC 54 of 2023; SCC 55 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of good behaviour obligations – where breach related to longstanding struggle with drug use, obligations relating to drug use “hopeful” with hindsight – offender polite and co-operative with Corrections and undertook familial caring responsibilities – re-sentencing offender with good behaviour obligations the most appropriate course where the court had a limited range of appropriate orders to make in the circumstances.

The Supreme Court has dealt with the breach of good behaviour obligations by an offender by reimposing the suspended sentence originally given to him.

The offender failed to comply with good behaviour obligations regarding accepting the supervision of corrective services and not continuing his drug use. Nonetheless, the offender had been polite and co-operative in dealing with corrective services and had carer responsibilities for family, reimposing suspended sentence was therefore most appropriate course in circumstances where court limited by range of orders it could make, where imprisonment was likely to serve little utility and Drug and Alcohol Treatment Orders and Intensive Corrections Orders either unsuitable or impractical.

DPP v Sullivan (No 3) [2024] ACTSC 390

CRIMINAL LAW – prosecution application to waive service requirements for expert report – report addressing responses of victims to non-consensual sexual activity – no action taken by prosecution to obtain report until shortly before the trial – report served late on accused – application to waive service requirements only made after accused made application to exclude report – prosecution application for waiver of service requirements dismissed – report inadmissible.

The prosecution’s application for waiver of s 79E of the Court Procedures Act 2004 (ACT) is refused. Accordingly, the report of Ms Jessica Pratley is not to be adduced in the trial.

DPP v Davidson [2024] ACTSC 372

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to withdraw plea of guilty – application to remit proceedings to Magistrates Court pursuant to s 90A of Magistrates Court Act 1930 (ACT) – requirement to remit matter to Magistrates Court – no discretion where requested by accused – application to withdraw leave unnecessary – proceedings remitted to Magistrates Court.

The Supreme Court has allowed an application to remit proceedings to the Magistrates Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT). That provision establishes a requirement to remit a matter to the Magistrates Court with no discretion where it is requested by an accused. An application to withdraw a plea of guilty was considered unnecessary.

Travers-Murison v Ringrose-Voase [2024] ACTSC 387

TRUSTS – protective trust – where a person experiencing a mental health condition at the time of the establishment of a protective trust no longer suffers from that condition – whether to dissolve trust – jurisdiction of the Court – inherent or statutory jurisdiction – parens patriae jurisdiction – jurisdiction under Trustee Act 1925 (ACT), s 45(8) – where original orders provided for dissolution of the trust – whether the plaintiff has legal and/or financial capacity – consideration of medical evidence and documentary evidence – appropriate to dissolve trusts.

The Supreme Court has found it appropriate that protective trusts established by orders of this Court in 2014 are to be dissolved, upon the applicant having been subsequently established to have capacity to manage his own legal and financial affairs.

DPP v Scott [2024] ACTSC 378 (SCC 125 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –offender pleaded guilty to joint commission aggravated robbery – substantial criminal history – disadvantaged and dysfunctional background – offender seeking drug and alcohol treatment order – offender assessed as not suitable for treatment order – concerns surrounding offender’s compliance with conditions and engagement with rehabilitation program – offender’s substance use disorder assessed as moderate – offender dependent on controlled drug at time of offending – purposes of Crimes (Sentencing) Act 2005 not to exclude offenders whose addiction not severe enough – insight into addiction and commitment to rehabilitation – no penalty other than imprisonment appropriate given seriousness of offence – imposition of drug and alcohol treatment order not opposed by prosecution – period of imprisonment to be served by way of drug and alcohol treatment order imposed.

The Supreme Court imposed a DATO for an offender who pleaded guilty to joint commission aggravated robbery. The offender’s disadvantaged background included longstanding substance abuse which contributed to the offending. However, he made significant progress towards his rehabilitation whilst in custody. The offender was assessed as not suitable for a DATO due to concerns surrounding his compliance and an assessment of his substance use disorder as “moderate”. The Court held the offender’s non-compliance was limited and could be explained. Further, the offender was dependent on a substance when he offended, and “moderate” substance use disorder is not a barrier to a DATO.

DPP v Razayee [2024] ACTSC 151

The publication restriction has now been lifted.

CRIMINAL LAW – EVIDENCE – Pre-Trial Application to Adduce Evidence of a Complainant’s Prior Sexual Activity – Operation of ss 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – proper matter for cross-examination about credit – leave granted

The Supreme Court has, ahead of the commencement of trial, granted leave for the complainant in a sexual offence proceeding to be cross-examined in relation to prior sexual activity. The relevant activity was a prior consensual sexual encounter with the accused that the complaint had not disclosed to police, and that she had disclosed a prior sexual assault from her former partner to the accused. The Court considered the evidence had substantial relevance to facts in issue and was a proper matter for cross-examination in relation to the complainant’s credibility.

DPP v KN [2023] ACTSC 243

The publication restriction has now been lifted.

CRIMINAL LAW – EVIDENCE – sexual offence proceedings – whether the Evidence in Chief Interview of the complainant should be edited pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) – consented to by parties – application granted

CRIMINAL LAW – EVIDENCE – whether leave should be granted pursuant to s 76(1) of the EMP Act for the accused to cross-examine the complainant as to prior sexual activity with the accused – application not opposed – satisfied evidence has substantial relevance to the facts in issue and is a proper matter for cross-examination about credit – application granted

CRIMINAL LAW – EVIDENCE – whether leave should be granted pursuant to s 32 of the EMP Act for the complainant and a complaint witness to give evidence via AVL from a place outside the ACT – whether the necessary facilities were available – whether it would be in the interests of the administration of justice – facilities not satisfactory – application dismissed

The Supreme Court, ahead of the commencement of a trial in 2023, allowed the police interview of a complainant in a sexual offence proceeding to be edited in line with agreement between the parties, granted leave to the parties to adduce evidence of prior sexual activity of a complainant, being the existence of a prior sexual relationship between the complainant and accused generally, and specific sexual activities between them proximate to the time of offending. The Court dismissed an application to allow two witnesses to give evidence via AVL outside of the ACT, due to a lack of necessary facilities.

R v XH [2024] ACTSC 370 (SCC 204 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – produce child abuse material for use through carriage service.

The ACT Supreme Court has sentenced an offender for an offence of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service, contrary to s 474.23 Criminal Code Act 1995 (Cth). The offender wrote a story which contained child abuse material, on his work computer.

The Court found that exceptional circumstances existed, which made a recognizance release order appropriate, taking into account all sentencing factors, including objective seriousness and deterrence.

The offender was sentenced to 12 months imprisonment. The offender was released immediately, upon entering into a recognizance order, to be of good behaviour for a period of 3 years from the date of sentence.

Mena v DPP [2024] ACTCA 34

Judgment summary

APPEAL – CRIMINAL LAW – Appeal against conviction – whether jury’s verdict was unreasonable or unsupported by evidence – whether trial judge erred in making jury directions about identification evidence – whether trial judge failed to warn jury under s 165(1)(d) of the Evidence Act 2011 (ACT) about unreliable evidence of witness criminally concerned in events giving rise to proceedings – whether decision to admit audiovisual recordings into evidence wrong in law – no grounds of appeal made out – appeal dismissed.

The Court of Appeal has unanimously dismissed two appeals against convictions for offences arising out of a home invasion in 2021. Both appellants were charged with aggravated burglary, while the first appellant was also charged with attempted murder and committing an act endangering life. The jury returned guilty verdicts on all counts.

The appellants argued that the jury’s verdicts were unreasonable or unsupported by evidence because the two key witnesses were unreliable. They also contended that the trial judge had erred in the directions given about identification evidence and failed to warn the jury about unreliability of a witness who was potentially criminally concerned in the events giving rise to the proceedings. Finally, they argued that a pre-trial decision to admit audiovisual recordings into evidence was wrong in law.

In dismissing the appeals, the Court found that it was open to the jury to find the witnesses reliable and, in doing so, accept their evidence identifying the appellants as the offenders. The Court rejected the appellants’ contention that the directions had given rise to the risk of a miscarriage of justice. The Court held that there was no error in the pretrial ruling to admit the recordings into evidence, noting the purpose and policy of the legislative scheme which permitted such recordings to be admitted.

DPP v Cook [2024] ACTSC 379 (SCC 139 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – use carriage service to groom a person under the age of 16 – where offender suffered severe cognitive impairment and associated disabilities from birth – Verdins principles applied – moral culpability significantly reduced – where offender not an appropriate vehicle for general deterrence – where risk of reoffending low and rehabilitation prioritised – intensive correction order made

The Supreme Court has sentenced a 23-year-old offender to a total effective sentence of 1 year and 17 days, to be served by way of an intensive correction order, in respect of offences of engaging in sexual intercourse with a young person and using a carriage service to groom a person under the age of 16. The offender had a strong subjective case, with no criminal history, a pro-social network provided by his family, early guilty pleas and genuine remorse. The offender also had a number of significant health conditions with Verdins principles applied. The Court found that the offender was not an appropriate vehicle through which to achieve general deterrence and prioritised the rehabilitation of the offender.

DPP v Hagen [2024] ACTSC 360 (SCC 134 of 2023; SCC 144 of 2023; SCC 145 of 2023; SCC 254 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two separate series of serious offending over the course of a night – offender with “mild” intellectual disability – Bugmy & Verdins principles engaged notwithstanding countervailing factors – prospects of rehabilitation somewhat guarded but continuing rehabilitative potential – sentence backdated in application of totality – sentenced to imprisonment

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order with suspended sentence – offender reoffended – good behaviour order cancelled – offender resentenced – sentence made partially concurrent with fresh sentences as a matter of totality

The Supreme Court has sentenced an offender for a number of serious offences including causing grievous bodily harm and being knowingly concerned in an arson. In committing these offences, the offender breached a good behaviour order imposed in 2022. The offender’s good behaviour order was accordingly cancelled, with the offender resentenced.

The offender was sentenced to a total term of 5 years, 1 months and 10 days’ imprisonment. A non-parole period of 2 years, 8 months and 13 days was imposed.

Jewell v DPP [2024] ACTCA 30

Judgment summary

APPEAL – CRIMINAL LAW – Leave to amend appeal notice – appellant sought to expand grounds of appeal – whether primary judge erred in failing to properly apply the Bugmy and Verdins principles – where existing pro-social factors were said to “neutralise” risk of reoffence – childhood experience relevant to risk of re-offending – giving “full-weight” to Bugmy and Verdins will see purposes of sentencing pull in different directions – leave not granted – whether primary judge erred in discount to be imposed – where prosecution case overwhelmingly strong with respect to two charges – where primary judge applied different discounts between pleas – imposition of singular discount for multiple pleas would operate to obscure individualised nature of sentencing exercise – leave not granted

APPEAL – CRIMINAL LAW – Appeal against sentence – aggravated threat to kill – aggravated stalking – contravening Family Violence Order – breach Good Behaviour Order – whether individual and overall sentences imposed were manifestly excessive – whether primary judge applied excessive accumulation to individual sentences – where offending occurred over one month – criminality of each offence differed substantially – further concurrency risked eliding seriousness of individual acts – appeal dismissed

STATUTES – INTERPRETATION – Interpretation of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) in the context of s 145 of the Legislation Act 2001 (ACT) – whether reference to singular charge in s 35(4) should be interpreted to include reference to the plural – allowing single overall discount for pleas of guilty to multiple offences – operational difficulty of such an interpretation – absence of power in the Act to impose aggregate sentences for multiple offences – interpretation of s 35(4) not expanded to include the plural

The Court of Appeal has unanimously dismissed an appeal against sentence with a term of imprisonment of 7 years, 5 months and 19 days for offences of aggravated threat to kill, aggravated stalking and contravene Family Violence Order, as well as breaches of earlier Good Behaviour Orders. The appellant argued that the primary judge approached the consideration of Bugmy and Verdins principles in an “unbalanced” way, that HH erred in applying a 25% discount for a plea of guilty with respect to one charge and 9% for the other two (where the prosecution case re the latter two charges was overwhelmingly strong), and argued that the degree of accumulation resulted in manifestly excessive sentences, where the offending conduct occurred over approximately one month. Leave to expand the grounds of appeal was refused, and the original ground was dismissed.

DPP v D’Alessandro [2024] ACTSC 69

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – breach of bail through the alleged commission of further offences – jurisdiction of the Court to deal with breach of bail – application of ss 9D and 22 of the Bail Act 1992 (ACT) after a breach of bail – breach of bail not established on the balance of probabilities – bail conditions varied.

The Supreme Court has varied an offender’s bail after an alleged breach of bail conditions by the commission of further offences. The Court considered the procedure to be applied where an offender has allegedly breached bail, including whether the presumptions contained in Part 2 of the Bail Act should apply to a variation or continuation of bail. The Court found that such presumptions do not apply.

The Court considered that it had not been established on the balance of probabilities that the offender had breached bail. The offender’s bail conditions were varied to address the risk of future breaches.

Classic Constructions (Aust) Pty Ltd v Shearman (No 4) [2024] ACTSC 289

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside subpoena and notice to produce.

Classic Constructions (Aust) Pty Ltd v Shearman (No 3) [2024] ACTSC 282

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where Registrar referred two applications sought to be filed by a self-represented litigant to a judicial officer under rule 6142 of the Court Procedure Rules for consideration as to whether applications should be accepted for filing – consideration as to whether litigant should have leave to file the documents – whether documents an abuse of process – where litigant had served numerous notices for non-party production and obtained numerous documents – failure to prove inadequate production or need for further documents

Classic Constructions (Aust) Pty Ltd v Shearman (No 2) [2024] ACTSC 374

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where owner seeks leave to file counterclaim against new party – extensive delay in bringing counterclaim – whether previous orders contemplated that course – proper approach to interpretation of orders

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where self-represented owner serves numerous notices for non-party production – application by builder to set aside notices

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where builder claims works are complete – where owner claims numerous defects require rectification – where owner contends builder must remain in possession pending rectification of defects – whether owner can compel builder to remain in possession

Classic Constructions (Aust) Pty Ltd v Shearman [2024] ACTSC 77

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside notices for non-party production – where notices drafted by self-represented litigant – where litigant unsure of basis for seeking documents

Pesec v Zivko (No 4) [2024] ACTSC 361

COSTS – determination of costs following unsuccessful oppression suit – where defendants were represented by three separate legal teams – whether plaintiff should bear costs of all three – where defendants served offer of compromise and Calderbank letter – inclusion of requirement for plaintiff to release defendants from any future claims arising out of or in connection with the matters the subject of the proceedings – whether it was unreasonable for the plaintiff not to accept the offer – whether judgment “not more favourable”.

The Supreme Court has determined costs following an unsuccessful oppression suit.  The plaintiff accepted he should pay the defendants’ costs but contended he should not have to pay the costs of three legal teams representing various defendants. The defendants sought a special costs order on the grounds of the plaintiff’s failure to accept an offer of compromise and Calderbank letter.

The Court was not satisfied the offer of compromise was more favourable than the judgment. The Court also found it was not unreasonable for the plaintiff to not accept the Calderbank offer because the inclusion of a term requiring the parties to release each other from all past and future claims connected to the proceedings made it difficult to determine if the defendants had achieved a better outcome from the judgment as opposed to the joint offer or Calderbank letter.

The Court accordingly dismissed the defendants’ application for a special costs order and varied the plaintiff’s costs order so he would not be required to bear the costs of three separate legal teams.

Ashell Homes Constructions Pty Ltd v Kobus [2024] ACTCA 32

Judgment summary

PRACTICE AND PROCEDURE – APPEAL – Appeal against award of damages by primary judge – whether there was a denial of procedural fairness – damages awarded on a basis other than the basis run at trial – appeal allowed – matter remitted.

The Court of Appeal has unanimously allowed an appeal against an award of damages on the ground of a denial of procedural fairness.

Mossop and Baker JJ agreed with Loukas-Karlsson J that the appellant was denied procedural fairness insofar as the primary judge’s assessment included “monies toward rectification of the structural departures” and “diminution in amenity”.

The matter was remitted to the primary judge. The respondents are to pay the appellant’s costs of the appeal, to be assessed after the conclusion of the proceedings on remitter.

Kader v Director of Public Prosecutions [2024] ACTCA 31

Judgment summary

CRIMINAL LAW – Appeal – where appellant pleaded guilty to perjury and perverting the course of justice – appellant tried twice for sexual offences – juries hung in both trials – appellant gave false evidence in first trial – appellant attempted to convince former wife to support his false evidence – whether primary judge breached De Simoni principle by taking into account the accused’s intention to secure acquittal as an aggravating circumstance on sentence – whether victim impact statement of complainant admissible – whether complainant was a victim of perjury – whether ongoing family court proceedings presented risk of re-offending – breach of De Simoni established – appellant resentenced – no lesser sentence appropriate – appeal dismissed

The Court of Appeal dismissed an appeal against sentences imposed for administration of justice offences, which were committed during and before jury trials for sexual offending. The Court of Appeal held that the primary judge, when sentencing for perjury, had erroneously considered the appellant’s intention to secure an acquittal, an element of aggravated perjury. The Court of Appeal held the primary judge was correct to find that the complainant of the sexual offending was a victim of the administration of justice offences. On resentence, no lesser sentence was imposed.

Jeffcott v Davesi Construction Group Pty Ltd [2024] ACTSC 366

CIVIL LAW – BUILDING AND CONSTRUCTION – breach of contract – Building Contract and Project Management Agreement entered into at same time – allegations of agency and sham not pressed – whether contracts inconsistent – defects in construction of residential building – whether delay in practical completion – alleged lock out from property – damages incurred owing to delay in completing property – rectification of defects – whether evidence of valid insurance policy

The Supreme Court has awarded damages in favour of the plaintiff for the defendant’s breach of contract. The plaintiff (and another joint owner) entered into a Project Management Agreement and an ACT Home Building Contract with the defendant on the same day. The contracts concerned the building of a duplex apartment. The defendant’s allegations of agency and sham were not pressed and both agreements were determined to be operative. The Court found that the defendant was liable under the Building Contract for various defects in the work, for lost rent occasioned by the defendant’s delay in completing the property and for the repayment of interest that the defendant had wrongly charged, which the plaintiff had paid under protest.

In the Estate of Robin Isobel Rawson [2024] ACTSC 365

WILLS, PROBATE & ADMINISTRATION – s 11A of the Wills Act 1968 (ACT) – informal will - where handwritten document (Codicil) purporting to amend a valid will signed and dated by deceased but only witnessed by one person – order under s 11A made - application for judicial advice as to the construction of the Will and the Codicil – whether “full share” should mean “additional equal share” in favour of one of the beneficiaries – judicial advice given

The Supreme Court has made orders under s 11A of the Wills Act 1968 (ACT) for a handwritten document (the Codicil) to constitute the valid will of the deceased together with the deceased’s formally executed Will, notwithstanding its non-compliance with the requisite formalities under the Wills Act. The Codicil was signed and dated by the deceased but only witnessed by one person. The applicant also made an application for judicial advice as to the construction of the Will and the Codicil under s 63 of the Trustee Act 1925 (ACT) regarding ambiguity on the face of the Codicil. Judicial advice was subsequently provided.

R v Merrilees (No 2); DPP v Merrilees [2024] ACTSC 364 (SCC 287 of 2024; ACTCA 37 of 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –trafficking in a commercial quantity of a controlled drug – where offender absconded from Australia for nine years – delay of offender’s making – history of non-compliance with court orders – mental health diagnoses relevant to offending – where offender spent period in immigration detention before extradition – pre-sentence custody relevant to totality only – sentence of full-time imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Order – whether to impose suspended sentence or re-sentence – charges of perjury and possessing a drug of dependence for sale or supply – error of law in initial sentence – offender had achieved some rehabilitation during intervening period of absconsion – re-sentenced

The Supreme Court has sentenced an offender for trafficking in a commercial quantity of a controlled drug (cocaine) and re-sentenced the offender for a breach of a good behaviour order imposed for previous offending. Offending occurred in 2016, prosecution delayed due to offender leaving the country for nine years. Offender spent time in immigration detention before extradition. Offender was diagnosed with relevant mental health conditions. The offender was sentenced to a total period of imprisonment of 3 years and 3 months, which was backdated to take account of previous periods spent in custody.

Kirk v Hicks [2024] ACTSC 363 (SCA 13 of 2024)

APPEAL – CRIMINAL LAW – Sentence – charge of stalking – evidence that appellant suffered from Autism Spectrum Disorder not before magistrate – whether absence of evidence describing mental health condition of appellant resulted in a miscarriage of justice.

The Supreme Court has allowed an appeal against sentence from the Magistrates Court on the ground that sentencing proceedings miscarried as a result of the absence of evidence before the court of the appellant’s diagnosis of Autism Spectrum Disorder. Accordingly, the Court allowed the appeal, admitted additional psychological evidence and re-sentenced the appellant taking account of this new evidence. The court arrived at a new head sentence of two years and nine months, reduced from three years and six months imposed below, to account for the effect of the appellant’s diagnosis on the synthesis of an appropriate sentence for the appellant.

Victors (a pseudonym) v DPP [2023] ACTCA 14

CRIMINAL LAW – Application for leave to appeal interlocutory decision – decision of primary judge which found accused was fit to plead – relevant principles and factors – whether appellant is disordered or impaired to the extent they cannot give instructions – weight to be given to evidence from the appellant’s lawyers – leave to appeal granted

The Supreme Court granted an applicant leave to appeal from a decision of this Court finding him fit to plead in relation to a number of historic sexual offences. The Court held that the primary judge's decision was attended with sufficient doubt to warrant reconsideration. In coming to this decision, the Court considered the risk of substantial injustice which may arise, should the applicant be made to participate in a trial where he was unfit to plead. This consideration was balanced against the undesirable fragmentation of the trial process which may result from granting leave.

Redrouge Nominees Pty Ltd v Canberra Institute of Technology [2024] ACTSC 362

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Contract between tertiary education provider and “industry leader in applied complexity sciences” – whether contractual provisions specifying consequences of termination required payment of the whole of the Contract Price – Contract Price would be payable whichever party breached contract – caution necessary before adopting a lawyer’s assessment of absurdity or uncommerciality when interpreting contract – such a term would be very unusual – alternative interpretation has reasonable operation – whole of Contract Price not payable on termination

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Repudiation – whether the exercise of a contractual right to terminate for breach excludes common law right to accept breaching conduct as repudiation and recover loss of bargain damages – in addition to clause specifying liability of consequences of contractual termination, contract contains provisions preserving parties’ rights – where consequences of termination by exercise of contractual right and termination by acceptance of repudiation are not so different as to require an election – termination rights taken to be concurrent – loss of bargain damages recoverable

The Supreme Court has awarded $2,402,002 to the plaintiff in a dispute between a tertiary education provider and an “industry leader in applied complexity sciences”. The dispute arose over whether the contractual provisions specifying consequences of termination required payment of the whole of the Contract Price where the Contract Price would be payable whichever party breached the contract. The court determined that such a term would be very unusual and that the whole of Contract Price not payable on termination.

In reaching its decision, the court considered whether the exercise of a contractual right to terminate for breach excludes common law right to accept breaching conduct as repudiation and recover loss of bargain damages. The contract included, in addition to clause specifying liability of consequences of contractual termination, provisions preserving parties’ rights. The court found that where the consequences of termination by exercise of contractual right and termination by acceptance of repudiation are not so different as to require an election, the termination rights are taken to be concurrent, and loss of bargain damages were recoverable.

Wu v Wu (No 2) [2024] ACTCA 29

Judgment summary

APPEAL – EQUITY – Undue influence – unconscionable conduct – whether presumption of undue influence established – whether defence of laches applies – whether remedial constructive trust appropriate

APPEAL – PROCEDURE – remittal – whether to remit proceeding – appellant 100 years old – where further evidence limited in nature – where no advantage of trial judge in circumstances of this case – no order for remittal made

The Court of Appeal has allowed an appeal dealing with equitable claims brought in undue influence and unconscionable conduct.  The proceeding concerned the appellant’s home, which was jointly owned by the appellant and his (now-deceased) wife and was gifted by them in 2009 to one of their adult daughters, the respondent.

The property was the appellant’s only means of accommodation, and the appellant was elderly, lacked proficiency in English and received no independent legal advice.

An earlier judgment of the Court of Appeal found material error: Wu v Wu [2024] ACTCA 8. Following a further hearing as to the appropriate conclusions to be drawn in light of that judgment, the Court determined that presumed undue influence arose from: (1) the wife’s position of ascendency over the appellant in respect of his financial and property affairs, and (2) the improvident nature of the gift.

Although the respondent daughter was not the source of the undue influence, as a third-party volunteer, the tainted nature of the gift extended to her receipt of the gift.  The defence of laches did not apply.

As there was no undue influence in respect of the wife’s interest in the property gifted to the respondent, the Court ordered a remedial constructive trust, declaring half of the interest in the property be held by the respondent in her own interest, and half held on trust for the appellant.

In the Estate of David Liu Koon Wong; In the Estate of Lana Mew Tham [2024] ACTSC 332

WILLS, PROBATE & ADMINISRATION – Rectification – testator’s intention – s 12A(2) of the Wills Act 1968 (ACT) – Whether rectification of wills ought to be made so as to give effect to the testator’s probable intention – gifts provided for in the Estate added up to 104% - clear arithmetical error – Application for rectification granted.

The ACT Supreme Court grants application for rectification of two identical wills - gifts provided for in each estate added up to 104% - clear arithmetical error – rectification made so as to give effect to the testator’s probable intention.

DPP v Rand (No 2) [2024] ACTSC 343

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – drug and alcohol treatment order – rehabilitation achieved – cybersecurity – Summernats – graduation – order confirmed.

The Supreme Court has graduated a participant from the supervision part of their Drug and Alcohol Treatment Order, moving them to the good behaviour portion of the order. The participant was sentenced in the Drug and Alcohol Sentencing List (DASL) in June 2022, and has been abstinent of drugs and alcohol for some 29 months, showing significant commitment to the DASL program. The Court noted the participant’s growth as a man to now being one with honesty and integrity, and his commitment to his studies, where he excelled in cybersecurity.

ZA v Director-General, Community Services Directorate [2024] ACTSC 347

PRACTICE AND PROCEDURE –  CARE AND PROTECTION PROCEEDINGS – Application by first respondent to dismiss appeal for want of prosecution – where appellant had appeared at only two of six occasions in which the proceedings had been listed and had not complied with procedural requirements relating to an index of appeal papers and transcripts of proceedings below – weight of application lessened by the appellant having taken steps to waive transcript application fees and having drafted an incomplete appeal index – court declined to dismiss proceedings and sought to regularise the appeal with further directions

The Supreme Court has dismissed an application by the first respondent to dismiss an appeal for want of prosecution. The appellant failed to file an appeal index and transcripts of the hearing of the matter at first instance, amounting to breaches of procedural requirements for prosecuting an appeal. She had also not appeared on occasions in which the appeal had been listed. Nonetheless, the appellant had sought to have transcript fees waived and had drafted an incomplete appeal index, which was sufficient to satisfy the court that dismissal of proceedings for want of prosecution was not warranted.

CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 4) [2024] ACTSC 345

PRACTICE & PROCEDURE – security for costs – where plaintiffs are corporations – where prima facie evidence of an inability to pay an adverse costs order – where delay in application for security of more than a year – where counterclaim and third-party action raise overlapping issues with plaintiffs’ claim – application dismissed.

The Supreme Court has dismissed an application for security of costs against two corporate plaintiffs, neither of which were trading and one of which was in liquidation.  While it was not argued that the order would stultify the litigation, the application was only made more than a year after the proceeding was commenced and the plaintiffs had incurred considerable costs in the meantime.

Pout v Shipway [2024] ACTSC 324

PRACTICE AND PROCEDURE – PRODUCTION AND INSPECTION – Application to compel compliance with Notice for Non-Party Production – Notice issued to insurer for the defendant – response from insurer almost entirely inappropriate – it included statements that were self-evidently false – it will not really cost $80,000,000.00 to comply with the Notice – consideration of categories of items sought – most categories do not warrant the making of an order for production – orders made to compel production in limited categories.

The Supreme Court has made orders compelling an insurer to comply with a Notice for Non-Party Production, but limited the scope of the categories for which production was required. The insurer originally claimed that compliance with the Notice would take in excess of 3,000,000 man hours at a cost exceeding $80,000,000.00. The court found that this was self-evidently false, and that this, along with other features of the insurer’s response to the Notice, had significantly contributed to the unnecessary escalation of the matter.

DPP v Donohue [2024] ACTSC 96

CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Bail -- applicant charged with attempted murder -- charge falls within s 9C Bail Act 1992 (ACT) due to operation of s 189 Legislation Act 2001 (ACT) -- applicant failed to establish “special or exceptional circumstances” -- consideration of s 22 factors -- application dismissed and bail refused

The Supreme Court dismissed a bail application and refused bail for an accused charged with attempted murder. The attempted murder charge falls within s 9C of the Bail Act 1992 (ACT) due to the operation of s 189 of the Legislation Act 2001 (ACT). The applicant failed to establish that he was subject to “special or exceptional circumstances” and, consequently, the court had no power to grant bail.

Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd [2024] ACTSC 352

CIVIL LAW – application to substitute defendants previously granted by Court – order made under r 502 rather than r 503 of the Court Procedure Rules – application by plaintiff to amend order – rr 1613 or 6906 inapplicable – plaintiff’s application dismissed – application by defendants under r 514(4) of the Court Procedure Rules – proper construction of r 503 – whether substitution permitted under r 503 – sloppy pleadings – no affidavit from plaintiff’s legal representative explaining mistake – whether discretion under r 514(4) should be exercised – collateral challenge to previous order made over 12 months after order made – prejudice would be occasioned to plaintiff if order made – defendant’s application dismissed.

The Supreme Court has dismissed applications relating to an order previously made by the Court to substitute defendants. The parties agreed that the previous order was made under the incorrect Court Procedure Rule. The plaintiff sought to have the error corrected. The defendants sought an order that the proceeding was taken to have started when the substitution occurred, potentially time-barring the plaintiff’s claim. Both applications were first made over a year after the order was made. The Court dismissed both applications.

Johnson v Hansen [2024] ACTSC 353

APPEAL – CRIMINAL LAW – Appeal against conviction from the ACT Magistrates Court – appeal on basis that proceedings miscarried as a result of failure of the appellant’s counsel to adduce evidence of appellant’s good character, make submissions as to its significance and to seek that the magistrate give himself directions relating to the appellant’s good character – good character evidence available from numerous witnesses – bare “no convictions” character evidence adduced at trial – significant possibility that new evidence would have affected outcome of trial – appeal allowed on this ground

APPEAL – CRIMINAL LAW – Evidence of absence of criminal history – magistrate did not err in failing to direct himself as to the potential use of good character evidence in circumstances where neither party sought such a direction

APPEAL – CRIMINAL LAW – Power of the Magistrates Court to amend an information – argument by appellant that the court lacked the power under s 28 of the Magistrates Court Act 1930 (ACT) to amend charge to refer to different subsection of s 60 of the Crimes Act 1900 (ACT) – validity of conviction not affected by amendment to information in circumstances where “family violence” circumstance of aggravation stated on information – ground of appeal dismissed

The Supreme Court has allowed an appeal from the Magistrates Court on one ground, that the proceedings below miscarried as a result of failure of the appellant’s counsel to adduce good character evidence, make submissions as to its significance and seek that the magistrate give himself directions as to the evidence. Witnesses were available to give good character evidence, but a bare “no convictions” case was adduced, resulting in a significant possibility that this evidence would have affected the outcome of the trial.

However, the court dismissed other grounds of appeal because first, it was not convinced that the magistrate failed to direct himself as to the potential use of good character in circumstances where neither party sought such a direction. It also rejected an argument that the validity of conviction was affected by the amendment of an information from one subsection of s 60 of the Crimes Act 1900 (ACT) to another in circumstances where the “family violence” circumstances of aggravation were stated on the information.

Wolstenholme v Bonshaw ACT Pty Ltd [2024] ACTSC 339

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for vacation of interlocutory injunction previously granted – injunction restraining sale of property – whether serious question to be tried – whether balance of convenience favours injunctive relief – injunction maintained – orders varied.

The Supreme Court has varied the orders of an interlocutory injunction restraining the termination of a contract for the sale of land. The first respondent sought orders vacating the injunction. The Court found that there was a serious question to be tried such that the balance of convenience favoured the continuation of injunctive relief and the application was refused.

DPP v Bonazza [2024] ACTSC 349 (SCC 68 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis – money laundering - intensive corrections order (ICO).

The Supreme Court has sentenced an offender for an offence of trafficking in a controlled drug other than cannabis, namely cocaine and an offence of money laundering.

The sentence imposed is to be served by way of intensive corrections order subject to the core conditions and a condition that the offender perform 250 hours of community service.

The overall aggregate sentence is two years two months to be served by way of ICO.

DPP v Reid (No 2) [2024] ACTSC 350 (SCC 196 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of ICO – commission of further offences – whether cancellation of the ICO is not in the interests of justice – positive engagement while in custody – ICO cancelled – non-parole period set.

The Supreme Court has cancelled an Intensive Correction Order imposed in April 2021 after the offender breached the order by virtue of fresh offending. The Court found there was no basis to conclude that cancelling the ICO would not be in the interests of justice and an order was made for the offender to serve the remainder of the sentence in full-time detention.  A non-parole period was set such that the offender is now eligible for parole.

DPP v Williams [2024] ACTSC 303 (SCC 263 of 2023, SCC 264 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravention of Family Violence Order – family violence offending – whether victim allowing offender in their home in breach of FVO constitutes mitigating factor – s 34B of the Crimes (Sentencing) Act 2005 (ACT) – suspended sentence not appropriate penalty – history of family violence offending – term of imprisonment imposed

The Supreme Court has sentenced an offender to 4 years and 23 days imprisonment with a non-parole period of 2 years, 5 months, 9 days, for offences of aggravated choke, suffocate, strangle another person so as to render the person insensible or unconscious, aggravated assault, aggravated common assault, and contravening family violence order. In sentencing the offender, the Court considered his history of family violence offending, and the impact of his drug and alcohol dependency on the offending. The Court also considered whether a victim allowing an offender into their home in breach of a family violence order could be considered a mitigating factor. The Court found that while lack of forced entry may indicate an absence of aggravation, the responsibility of compliance with a protection or family violence order ultimately lies with respondent.

DPP v Peacock [2024] ACTSC 348 (SCC 170 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – serious mental illness – significant criminal history – Bugmy and Verdins considerations – failure to demonstrate remorse – limited prospects of rehabilitation – sentence of imprisonment imposed

The Supreme Court has sentenced an offender for attempted aggravated robbery to 2 years, 4 months and 24 days of imprisonment reduced from 3 years of imprisonment for a guilty plea. Bugmy and Verdins principles found to apply.  The offender’s mental health diagnosis directly contributed to his offending conduct. The treatment resistant nature of his diagnosis reduced his prospects of rehabilitation and ability to develop insight into his offending.

DPP v Mastalerz (No 2) [2024] ACTSC 267 (SCC 146 of 2023; SCC 147 of 2023; SCC 101 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – where offender committed acts of serious family violence – offending while subject to family violence order and bail conditions precluding him from contacting the victim – high range of objective seriousness for the sexual offences and varying levels for assault, property damage and family violence order contraventions – negative family upbringing – prior criminal history – plea of guilty three weeks before trial – general deterrence important and prospects of rehabilitation guarded – sentenced to 121 months' imprisonment

The Supreme Court has published the reasons for sentence of an offender charged with aggravated sexual intercourse without consent, multiple contraventions of a family violence order, aggravated common assault and aggravated minor property damage.

The two rolled up counts of aggravated sexual intercourse without consent carried a maximum sentence of 15 years’ imprisonment for each charge, while the other offences that the offender was charged with had maximum penalties in the range of three to five years. The offender was sentenced to 121 months’ imprisonment (10 years and 1 month) upon the court’s consideration of the offender’s negative family upbringing (engaging R v Bugmy principles), prior criminal history and rehabilitation prospects. General deterrence and a late plea of guilty were also important factors in the sentence arrived at by the Court.

The Owners – Units Plan No 4321 v Victory Homes Pty Ltd [2024] ACTSC 337

PRACTICE AND PROCEDURE – PLEADINGS – Application by first defendant to strike out or obtain summary judgment in relation to aspects of the plaintiff’s claim – claim under Australian Consumer Law (ACL) against builder not precluded by the fact that owners corporation did not exist at time of representations and did not pay for common property – application of limitation period not able to be determined until trial – not appropriate to rule upon availability of claim for breach of statutory duty under s 42 of the Building Act 2004 (ACT) – s 40 of the Limitation Act 1985 (ACT) not applicable to claim for damage under s 236 of the ACL.

The Supreme Court has dismissed an application by the first defendant to strike out or obtain summary judgment in relation to aspects of the plaintiff’s claim: a claim under the Australian Consumer Law for misleading or deceptive conduct, a statutory claim under s 42 of the Building Act and a claim for breach of duty of care in relation to defective repair work.

The misleading or deceptive conduct claim was found to not be precluded by the fact that the plaintiff did not exist at the time representations were made, and it was not practical to determine the application of limitation periods at an interlocutory stage. It was not appropriate to decide finally upon the application of a claim under s 42 of the Building Act, and it was considered that the issues raised by the first defendant concerning the plaintiff’s pleading of breach of duty of care in relation to repair work were properly a case management issue.

In the matter of an application under the Confiscation of Criminal Assets Act 2003 (ACT) [2024] ACTSC 331

CIVIL LAW – CONFISCATION OF CRIMINAL ASSETS – Application for restraining order – commercial cultivation, trafficking and possession of cannabis – automatic forfeiture – whether informations laid pursuant to s 29(1)(a) of the Confiscation of Criminal Assets Act 2003 – where charges not orally read – Court exercising jurisdiction over defendants amounts to laying of informations – reasonable belief that informations have been laid.

The Supreme Court has granted an ex-parte app by the DPP for restraining orders over property pursuant to the Confiscation of Criminal Assets Act 2003 (ACT) (the Act). In granting the application, the Court considered whether informations had been laid (where charges were not read orally to the defendants because no interpreter was available), and whether the officer believed informations had been laid against the defendants pursuant to s 31(2) of the Act. The Court found that informations had been laid, by virtue of the Magistrates Court exercising jurisdiction over the defendants. As a result, the belief expressed by the officer that informations were laid was a reasonable one.

Law Society (ACT) v Bangura [2024] ACTSCFC 1

Judgment Summary

LEGAL PRACTITIONERS – APPLICATION FOR REMOVAL FROM THE ROLL OF LEGAL PRACTITIONERS – Criminality – whether practitioner is a fit and proper person to practise law – where criminal conduct related to willingness to engage in dishonesty over sustained period – where any insight belated – where practitioner’s subjective circumstances not causative of dishonesty – defect of character established – unfitness indefinite – practitioner’s name removed from Roll of Legal Practitioners

The Full Court of the Supreme Court of the ACT has ordered the removal of a legal practitioner from the Roll of Legal Practitioners.  The practitioner had previously been convicted in NSW for the offence of attempting dishonestly to obtain a financial advantage.  The practitioner was found to have a defect of character, the nature of which was such as to make the applicant not fit and proper to practise for a period of indefinite duration. To protect the public and maintain the highest standards of the legal profession, the Full Court determined that removal from the Roll was appropriate.

DPP v Sullivan [2023] ACTSC 317

CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Evidence -- coincidence evidence -- series of robberies -- CCTV footage -- where the offender was apprehended at the scene of the last robbery -- identification evidence -- similar clothing and weapon -- significant probative value -- risk of unfair prejudice

The Supreme Court has granted an application made by the DPP to adduce coincidence evidence of three armed robberies, where Mr Sullivan has pleaded not guilty to two, and guilty to one. The Court considered the significant prejudicial effect of adducing such evidence, particularly given its admission would reveal to a jury that Mr Sullivan pleaded guilty to a separate offence of armed robbery. In granting the application, the Court considered the striking similarities between the three incidents and, as a result, found that the significant probative value of the evidence outweighed the danger of unfair prejudice to Mr Sullivan.

DPP v Best (a pseudonym) [2024] ACTSC 334 (SCC 216 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – child offender – young person – sexual intercourse without consent – profound childhood disadvantage – Bugmy principles applied – Verdins principles applied – assessment of maturity – good prospects of rehabilitation – registration as a child sex offender found to be inappropriate

The Supreme Court has sentenced a young person for an offence of sexual intercourse without consent to 1 year, 2 months and 12 days of imprisonment reduced from 18 months of imprisonment for a guilty plea. Bugmy and Verdins principles found to apply. The sentence is to be suspended immediately upon the young person entering into a Good Behaviour Order for the period of the sentence.

de Souza v DPP [2024] ACTSC 330

CRIMINAL LAW – appeal from Magistrates Court – family violence offences – whether error in use of character evidence – adequacy of Magistrate’s reasons – Notice of Contention – whether Magistrate erred in finding complainant’s Evidence in Chief Interview (EICI) inadmissible – merit in submission of Director of Public Prosecutions that EICI was admissible – not appropriate to finally determine Notice of Contention – appeal dismissed

The Supreme Court has dismissed an appeal from convictions for family violence offences. The Supreme Court held that the Magistrate had not erred in her consideration of character evidence adduced by the accused and that there was no inadequacy in the Magistrate’s reasons. The Court also held that it was not appropriate to finally determine the Notice of Contention filed by the Director of Public Prosecutions which concerned the admissibility of the complainant’s recorded interview with police.

DPP v Chatfield [2024] ACTSC 329 (SCC 3 of 2024; SCC 354 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pilot circle sentencing list – Elders and Respected Persons panel – intentionally inflict grievous bodily harm – aggravated burglary – assault occasioning actual bodily harm – dishonestly drive motor vehicle without consent – assault frontline community service drive – possess knife without reasonable excuse – possess license issued to another – committed while offender was on conditional liberty – extensive criminal history – where offender had disadvantaged childhood – Bugmy principles applied – Verdins principles applied – offender demonstrated remorse

The Supreme Court sentenced an offender to 4 years, 11 months and 10 days of imprisonment for aggravated burglary, intentionally inflicting grievous bodily harm, assault occasioning actual bodily harm, driving a motor vehicle without consent, possessing a knife without reasonable excuse, possessing a license issued to another and two charges of assaulting a frontline service provider. This offender is the first to be sentenced in the Pilot Circle Sentencing List. The offender had a significantly disadvantaged childhood and various psychological diagnoses such that his moral culpability was reduced.

DPP v Mapiou [2024] ACTSC 323

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – murder preventing carrying out of forensic procedure – plea of not guilty by reason of mental impairment – prosecution agrees special verdict of not guilty by way of mental impairment should be entered – effect of nominated terms under s 302 of the Crimes Act 1900 (ACT) considered – special verdict entered – accused detained in custody for the immediate review of the ACAT – nominated terms imposed for both offences.

The Supreme Court has entered special verdicts of not guilty by way of mental impairment for one count of murder and one count of preventing the carrying out of forensic procedure. The Court accepted the opinions of psychiatric experts, who were of the unanimous view that, at the time of the offending, the accused was suffering from an acute episode of schizophrenia, and did not appreciate his conduct was wrong. The prosecution consented to the entering of the special verdicts. The Court specified an overall nominated term of imprisonment for 20 years and 1 month for both counts.

DPP v Sullivan (No 2) [2024] ACTSC 328

CRIMINAL LAW – application for bail pending appeal – bail revoked following guilty verdicts returned by jury – Notice of Appeal filed - where guilty verdicts appear inconsistent with not guilty verdicts – effect of conviction on risk of flight or failure to appear – prospects of appeal succeeding – bail granted

DPP v Sullivan [2024] ACTSC 327

CRIMINAL LAW – application for witnesses to give evidence via audio-visual link – application opposed by defence for some witnesses – necessary facilities for AVL – more convenient for witnesses to give evidence by AVL – no unfairness to accused – where giving evidence AVL would reduce cost to a party – application granted

Steep v Hall [2024] ACTSC 320

CRIMINAL LAW – Appeal – theft and minor theft offences – whether Magistrate erred in assessing objective seriousness of minor theft by reference to “monetary mid-point” – whether Magistrate erred in taking into account ‘normal’ ratio for non-parole periods when fixing the unsuspended portion of a suspended sentence – error established – appellant resentenced afresh – no lesser sentences than those imposed by the Magistrate are appropriate – appeal dismissed.

The Supreme Court has dismissed an appeal by the appellant from the sentences imposed by the Magistrates Court for various offences, including theft and minor theft. The Court found that the Magistrate did not err in assessing the objective seriousness of minor theft by reference to a “monetary mid-point”, although the use of that terminology was discouraged. The Magistrate was held to have erred in taking into account the ‘normal’ ratio for non-parole periods when fixing the unsuspended part of a suspended sentence. On resentencing it was held that no lesser sentences than those imposed by the Magistrate were appropriate.

Hudson v DPP [2024] ACTCA 28

Judgment summary

APPEAL – CRIMINAL LAW – Sexual assault – jury trial – inconsistent verdicts – trial involved single complainant and single event – whether verdicts unreasonable – adequacy of trial judge’s directions to jury on intoxication – where no objection to directions at trial

The CA unanimously dismissed an appeal against a jury’s guilty verdicts concerning sexual offending. The appellant, who had been found not guilty of some counts, submitted that the guilty verdicts could not be reconciled with the not guilty verdicts. He also contended that the guilty verdicts were unreasonable, and that the trial judge’s direction regarding his intoxication was inadequate. The CA dismissed all grounds of appeal, finding that the verdicts were consistent with the jury having accepted the complainant’s evidence but having a reasonable doubt as to particular elements, and that there was no error in the intoxication direction.

DPP v Howarth [2023] ACTSC 351

CRIMINAL LAW – EVIDENCE – Admissibility of evidence of subsequent conduct of complainant – whether evidence relevant solely to credit – whether evidence ought be excluded because it is otherwise unfairly prejudicial – evidence admitted

The publication restriction has now been lifted.

Pesec v Zivko (No 3) [2024] ACTSC 325

CORPORATIONS – MEMBERS’ RIGHTS AND REMEDIES – Oppression – application by shareholder for relief under s 233 of the Corporations Act 2001 (Cth) for alleged oppressive conduct under s 232 – unlisted public company – where managing director granted option to acquire shares in company as part of remuneration package – whether options issued at an undervalue – where company prepares financial statements adopting the cost model of accounting – whether additional financial information necessary to enable shareholders other than directors to ascertain the value of their shares – whether  unavailability of list or current valuations of real property assets produces commercial unfairness to shareholders other than directors – whether cumulative impact of separate allegations amounts to oppression

The Supreme Court has dismissed proceedings brought against the managing director and non-executive directors of Consolidated Builders Ltd. The plaintiff asked the Court to intervene in the governance of Consolidated on the ground of alleged oppressive conduct by its directors.

It was alleged the oppressive conduct arose from the Board’s approval of the managing director’s remuneration package, which included the grant of 150,000 options. The plaintiff contended the options were granted at an undervalue and changed the capital structure of the company such as to dilute the percentage shareholding of other shareholders. Oppressive conduct was also alleged to have arisen from the company’s refusal to provide members with a list and market valuation of its real property assets.

The Court found the decision to grant 150,000 options was neither contrary to the interests of nor oppressive to the members. The Court also found the refusal to provide members with a list and market valuation of its real property assets did not amount to commercial unfairness. The proceedings were accordingly dismissed.

R v McConnell-Imbriotis [2024] ACTSC 319 (SCC 168 of 2022; SCC 169 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – drug trafficking offences – aggravated dangerous driving – driving while disqualified – sentence deferred for 12 months – where offending behaviour informed by drug and alcohol use – significant work undertaken by offender to rehabilitate – time already spent in custody and rehabilitation programs – where custodial sentence presents high risk of relapse – rehabilitation as form of community protection – sentence of imprisonment wholly suspended – good behaviour order – recognizance release order

The Supreme Court has sentenced an offender to 2 years and 2 months imprisonment, wholly suspended, for drug trafficking and driving offences to which he pleaded guilty. The offender was originally before the Court twelve months earlier, but sentence was delayed to allow the Court to better determine the offender’s prospects of rehabilitation. The offender has spent 7 months in jail, and approximately 1 year, 6 months in residential rehabilitation programs. The Court considered the utility of rehabilitation as a means to protect the community, against the prime importance of general deterrence with respect to drug offences. In these circumstances, the offender will be required to comply with a Good Behaviour Order for a period of 2 years and 2 months.

DPP v Bowler (No 2) [2024] ACTSC 321 (SCC 312 of 2022; SCC 87 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – review – s 80ZE cancellation of Drug and Alcohol Treatment Order following withdrawal by participant on medical grounds – imposition or resentence – no further offending while subject to Treatment Order – successful rehabilitation in reach – resentence – term of imprisonment suspended

The Supreme Court has re-sentenced an offender to 3 years and 6 months imprisonment for offences including dishonestly taking and driving a motor vehicle without consent, obtaining financial advantage by deception, damaging property, driving a motor vehicle at police, and aggravated dangerous driving as a repeat offender. The sentence of imprisonment is to be wholly suspended upon the offender signing an undertaking to comply with good and supervision behaviour obligations. The offender was previously sentenced for the offences to a Drug and Alcohol Treatment Order, however the order was cancelled following the offender’s withdrawal of consent on medical grounds. In re-sentencing the offender, the Court considered his level of compliance with the Treatment Order, his prospects of rehabilitation, his protective factors, and prosocial engagements in the community, drawing the conclusion that successful rehabilitation is within reach, and that a good behaviour order would enable continued support for this.

Quach v Commissioner of Taxation [2024] ACTSC 312

CIVIL LAW – PRACTICE AND PROCEDURE – False and misleading statement to the Court – whether Respondent knowingly mislead the Court – whether Respondent’s statement that proceedings were interlocutory breached s 723 of the Criminal Code ACT (2002) – whether proceedings were interlocutory – application of res judicata to interlocutory proceedings

The Supreme Court has dismissed an application to have the Commissioner of Taxation dealt with for contempt by making a false statement to the Court, pursuant to s 723(1) of the Criminal Code 2002 ACT. The false statement was identified by the Applicant as the assertion that the decision of Mossop J was an interlocutory decision and leave to appeal was thus necessary. The Applicant argued that in so doing, the Respondent was applying “res judicata” to bring his appeal to an end to the Applicant’s detriment knowing that “res judicata” did not apply to interlocutory orders. In dismissing the application, the Court found that Mossop J’s decision was interlocutory and that the statements in question were demonstrably, not false.

Director General, Community Services Directorate as Guardian for LN v LL [2024] ACTSC 287

SUCCESSION – FAMILY PROVISION – minor beneficiary –Public Trustee and Guardian Act 1985 (ACT), s 25 – whether Public Trustee and Guardian or private family member should be appointed to manage provision made out of estate

The Supreme Court has made orders under the Family Provision Act 1969 (ACT) adjusting provision made in a will so that the entirety of the proceeds of a deceased’s estate pass to her son.  The ACT Public Trustee and Guardian was appointed as trustee to manage the provision.

Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315

CONSUMER LAW – MISLEADING, DECEPTIVE OR FALSE CONDUCT – Advertising – representations as to future matters – reasonable grounds – whether the representor had reasonable grounds for the representations – representor must have had possession of facts and circumstances comprising reasonable grounds – burden of proof – evidential burden – services – facts and circumstances must objectively support the representations

CONSUMER LAW – SERVICES – Whether sale of land a service – nature or characteristics of services – representation as to “value” – representation as to “benefit” – representation as to “performance characteristic”

EVIDENCE – WITNESS EVIDENCE – Fallibility of recollection evidence – lack of independent corroboration – internal and external inconsistencies – no corroborative contemporaneous documents, objective facts or the inherent probability of events – evidence appearing for the first time in cross-examination – late appearing evidence ordinarily damages a witness’s credibility

CONTRACTS – CONSTRUCTION – Extrinsic evidence – admissibility of agreements executed contemporaneously and forming part of the same overall transaction – construction by rectification – necessary conditions to be fulfilled – commonsense approach to construing terms

STATUTORY INTERPRETATION – APPROACHES – Literalism not applied – context – full meaning of context – mischief to be addressed

AGENCY – CREATION OF AGENCY – More required than complete shareholding – indicia of agency – terms of agreements between multiple parties – rights and obligations in agreements insufficient of themselves to establish agency

CIVIL PROCEDURE – PLEADINGS – requirement to plead material facts – what are material facts – amendment – late application for amendment – prejudice – reasonable prior opportunity to have pleaded case – enough is enough

The Supreme Court has made findings in relation to a matter brought by the Commissioner for Fair Trading (the Commissioner) regarding representations made during the advertising process for a residential development (the development) at Woden Town Centre. The Commissioner sought findings that representations made that the light rail to Woden had received planning approval, the proximity of the development to the light rail stop, travel times and frequency of services of the light rail and the predicted rental yield of units in the development, were misleading, deceptive or false. The Supreme Court found in favour of the Commissioner. In relation to the representations as to future matters, the Court did not accept the evidence of the defendants’ witnesses, did not accept that the representor (the sales and marketing agent) had reasonable grounds material in its possession when the representations were made, and found that even if it did, that material did not amount to reasonable grounds for making the representations. The Court also found the development company liable as principal for the conduct of the sales and marketing agent, but the companies behind the development company were not liable on the principal/agent case brought by the Commissioner.

R v Bolton [2024] ACTSC 314 (SCC 102 of 2023)

CRIMINAL LAW – Judgment and Punishment – Sentence – possession of child abuse material – using carriage service to access child abuse material – where offender has disabilities from stroke suffered subsequent to offending – whether intensive correction order appropriate – full time imprisonment and release on recognizance ordered

The Supreme Court has sentenced an offender to a total effective term of imprisonment for 1 year and 11 months for two offences, being of possession and access of child abuse material. The offender is to be released on recognizance from 5 December 2024.

In declining to impose an intensive correction order that had been sought, the Court had regard to the level of seriousness of the offending and the need to give paramountcy to general deterrence.  However, the Court accepted the significant hardship that would be faced by the particular offender while in custody, due to complex medical conditions following a stroke in 2014.  While those conditions were not such as to constitute the exceptional circumstances required for immediate release, they did result in a significant shortening of the period of fulltime custody to be served.

CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3) [2024] ACTSC 304

CIVIL LAW – Strike out Application – plaintiffs seek orders striking out various paragraphs of the first defendant’s Amended Defence and Counterclaim – third party seeks the entirety of the Third Party Notice be struck out – r 425(1) of the Court Procedure Rules 2006 (ACT) – first defendant claims the plaintiff engaged in misleading or deceptive conduct – finding of reliance on the part of the aggrieved party not necessary to found a cause of action for misleading and deceptive conduct under the Australian Consumer Law – adverse court order capable of constituting loss or damage under the ACL – novelty of claim not a reason to strike out pleadings – arguable cause of action under the ACL – impugned pleadings not frivolous, scandalous, unnecessary, vexatious or an abuse of process – application dismissed.

The Supreme Court has dismissed an application by the plaintiffs seeking orders striking out parts of the first defendant’s pleadings and an application by the third party for the Third-Party Notice to be struck out. The Court found that the first defendant had an arguable cause of action under the Australian Consumer Law (ACL) for misleading or deceptive conduct. The Court found that a finding of reliance is not necessary to found such cause of action and that an adverse court order is capable of constituting loss or damage.

DPP v Connell (No 3) [2024] ACTSC 259

PRACTICE AND PROCEDURE – JURISDICTION – Federal jurisdiction exercisable by Territory court – whether ACT Supreme Court has power to make orders binding upon Commonwealth or Commonwealth officer – consideration of s 48A of Australian Capital Territory (Self-Government) Act 1988 (Cth) – question inappropriate to resolve on interlocutory application without contradictor

CRIMINAL LAW – EVIDENCE – Evidentiary matters relating to witnesses and accused persons – application for nondisclosure orders in relation to identity information of witness and protection of identity of witness while giving evidence – power to make orders on national security or defence grounds – application allowed

The Supreme Court has allowed an application by the Commonwealth to make nondisclosure orders in a matter where the Commonwealth is not a party. The court allowed the application on the grounds that it was in the public interest for national security or defence reasons.

The Commonwealth, in seeking the orders, submitted that the ACT Supreme Court did not have the power to make orders binding upon Commonwealth or Commonwealth officers because the Commonwealth had not invested the ACT Supreme Court with federal jurisdiction. The court considered the submission but determined that it would be inappropriate to resolve the question on an interlocutory application where there was no contradictor.

DPP v Kilani [2024] ACTSC 264 (SCC 128 of 2022; SCC 129 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender charged with attempting to obtain financial advantage by deception and dangerous driving – parties agreed on facts but disagreed on characterisation of facts – offender sought to confine extent of deceptive and dishonest representations – prosecution contended offending involved substantial degree of premeditation – more serious offending found beyond reasonable doubt – offender sentenced to total of 17 months' imprisonment, suspended after eight months, and good behaviour period of two years

The Supreme Court has sentenced an offender to a total of 17 months' imprisonment, to be suspended after eight months, with an undertaking to be of good behaviour for a period of two years following his release.

The offender was sentenced for attempting to obtain financial advantage by deception and dangerous driving. The facts of the matter, which were agreed, involved deceptive and dishonest representations made by the offender to police and to his insurance company following a two-car collision. However, parties disagreed as to the scope of those misrepresentations—while the offender claimed that they were only to the extent of lying about who was driving at the time of collision, the prosecution asserted that the whole collision was staged as part of a wider scheme for financial benefit.

The court accepted the prosecution case and sentenced the offender on the more serious offending. The court considered the need for deterrence and denunciation of such conduct, and the offender’s failure to accept that his offending was as serious as the court found it to be.

Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271

PRACTICE AND PROCEDURE – PLEADINGS – Application by defendants for order to compel plaintiff to either seek leave to appeal out of time or comply with previous orders – where plaintiff previously directed to file complying pleadings – where plaintiff failed to do so – plaintiff previously self-represented litigant – plaintiff recently engaged solicitors – additional time allowed for plaintiff’s new solicitors – application otherwise allowed

The Supreme Court has allowed an application by the defendants to a proceeding for orders that the plaintiff either seek leave to appeal out of time or comply with the previous orders of the court. The plaintiff had previously been directed to file pleadings which complied with the court rules but had failed to do so. The court granted the defendants’ application but allowed additional time for the plaintiff’s newly engaged solicitors to take the steps required to comply with the previous orders.

DPP v Mitchell (No 3) [2024] ACTSC 274 (SCC 319 of 2023; SCC 193 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – resentence – persistent sexual abuse of children and acts of indecency – early guilty plea – six victims – consideration of ss 56 and 92EA of Crimes Act 1900 (ACT) – maximum penalty 14 years where offending did not involve sexual intercourse – relative gravity increased where offending has maximum penalty of 14 years compared to offending where maximum penalty is 25 years – offending in upper-end of mid-range of objective seriousness – offender sentenced to aggregate 14 years and nine months’ imprisonment with non-parole period of 10 years

The Supreme Court has resentenced an offender to 14 years and nine month’s imprisonment with a non-parole period of 10 years for persistent sexual abuse of children involving six victims from 1994 to 2008.

The offender had previously been sentenced for the offending but successfully appealed those sentences on the grounds that the sentencing judge had applied the wrong maximum penalty. The Court of Appeal remitted the matter for resentencing, and the offender was resentenced using the correct maximum penalty. However, because the offending had originally been considered compared to the types of offending caught by the 25-year maximum penalty, the relative gravity of the offending in fact increased on the resentence, where those more serious offences could not be used as a comparison to assess the seriousness of the offending.

DPP v Donohue (No 3) [2024] ACTSC 272 (SCC 300 of 2023; SCC 164 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender charged with attempted murder and intentionally inflicting grievous bodily harm – offender cut throat of victim after being told to leave victim’s home – while in custody offender repeatedly stabbed another inmate with a broken tennis racquet handle – offender a young man with “complex diagnoses which are linked to his offending behaviour” – sentenced to 13 years and five months’ imprisonment with a non-parole period of six years

The Supreme Court has sentenced an offender to 13 years and five months’ imprisonment with a non-parole period of six years for attempted murder and intentionally inflicting grievous bodily harm.

The offender and his victim met one another while out drinking and the victim invited the offender back to his home to continue. The following morning, when the victim told the offender to leave, the offender attacked the victim with a knife, cutting his throat. Later, while in custody at the AMC, the offender attacked another inmate with a broken tennis racquet handle which had been sharpened into a wooden spike.

In calculating the sentence, the court took into account the offender’s young age and complex psychological conditions, which were balanced against the seriousness of the offending, recognition of the harm done to the victims and protection of the community.

R v McColl (No 3) [2024] ACTSC 291

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – Drug and Alcohol Treatment Order – rehabilitation achieved – skydiving – graduation – order confirmed

The Supreme Court has graduated a participant from the supervision part of their Drug and Alcohol Treatment Order, moving them to the good behaviour portion of the order. The participant was sentenced in the Drug and Alcohol Sentencing List (DASL) in June 2022, and has remained committed to his rehabilitation since that date, achieving his goals and those of the DASL Treatment Team. The Court has celebrated the graduation of the participant, and commended him for how he has embraced his new life, engaging in kickboxing, gardening, and skydiving.

Previous occasions of graduations of participants from the Supreme Court Drug and Alcohol Sentencing list are accessible at:

https://www.courts.act.gov.au/supreme/about-the-courts/judiciary/speeches.

In the Estate of Audrey Mary Harvey [2024] ACTSC 299

WILLS, PROBATE & ADMINISTRATION – Application for appointment of independent executor – where jointly named executors are in dispute about who should be granted probate and how to administer the estate – where deceased died more than 15 months ago and probate has not yet been granted – where caveat lodged against grant of probate – whether it is just that an independent executor administer the estate – Court Procedure Rules 2006 (ACT) r 3114 – Administration and Probate Act 1929 (ACT) s 25.

Decision Restricted - [2024] ACTSC 302

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – advance ruling – application for severance – application to adduce tendency evidence – election for trial by judge alone – statutory construction of s 68B of the Supreme Court Act 1933 (ACT) – where some offences “excluded offences” and unable to be tried by judge alone – election for trial by judge alone not valid and effective – finding as to prejudice of multiple complainants and tendency evidence

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.DASL@courts.act.gov.au

Petersons v Pitches [2024] ACTSC 298

COSTS – settlement of dispute – whether any party acted unreasonably – where both plaintiff and first defendant had secured success – where Territory involved in proceeding as landowner and not the entity responsible for the register relating to land – no order as to costs

The Supreme Court has made no order as to costs following the settlement of a proceeding seeking to rectify boundaries in a registered plan.  The active parties were adjoining landowners and the Territory.  The plaintiff sought that the first defendant pay costs up to the point of settlement, relying on the fact that she had been successful and that the position adopted by the first defendant was unreasonable.  The first defendant sought that either the Territory pay her costs, or the plaintiff and the Territory jointly pay her costs of the proceeding on the basis that the plaintiff unreasonably contested the removal of a caveat.

The Court found each of the plaintiff and the first defendant had secured success upon settlement and that no party had acted unreasonably up to the point of settlement.  The Territory participated in the proceeding as a landowner rather than the entity responsible for an historical error in the register relating to land titles. The fairest course was to make no order with the consequence that the parties bore their own costs.

R v Lidden [2024] ACTSC 297 (SCC 183 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to groom a child – low objective seriousness – cognitive disability – Verdins principles – reduction in moral culpability – direct causal link between disability and offending – exceptional circumstances – recognizance release order

The Supreme Court sentenced an offender for using a carriage service to groom a person under 16 years of age, to 15 months of imprisonment to be released immediately on a recognizance release order on the condition that he be of good behaviour for 2 years. The objective seriousness of the conduct was at the lower end of the spectrum and there was a direct causal link between the offender’s disability and the offending.  The Court found that the existence of exceptional circumstances warranted immediate release on a recognizance release order.

DPP v Eichmann (No 2) [2024] ACTSC 260

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – review of the Drug and Alcohol Treatment Order – cancellation – breach by exiting from residential rehabilitation facility – submit to jurisdiction while s 80ZJ warrant outstanding – demonstration of commitment and willingness towards rehabilitation – prosocial support for rehabilitation – lack of further offending while warrant outstanding – objects of the Treatment Order – cancellation application refused and Treatment Order continued.

The Supreme Court has refused an application by the prosecution to cancel a participant’s Drug and Alcohol Treatment Order (DATO) under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The matter came before the Court during a review process under s 80ZH of the Sentencing Act after the participant, who was subject to a DATO, exited their residential rehabilitation program following illicit substance use. The Court refused the application to cancel the participants DATO, as they found that the participant was willing to engage with rehabilitative services and requirements, and was strongly motivated to address their substance abuse.

DPP v Xia [2024] ACTSC 295 (SCC 247 of 2023; SCC 248 of 2023)

CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated common assault – family violence offence – where genuine remorse established – rehabilitation prioritised by offender before sentence – low risk of re-offending – no relevant criminal history – sentence of imprisonment immediately suspended upon entering a good behaviour order

The Supreme Court has sentenced an offender to a suspended sentence of 6 months for an offence of aggravated common assault involving family violence. During a protracted argument one night, the offender had grabbed his wife on two occasions, one of which including him yelling at her while holding a knife. The offender had pleaded guilty, demonstrated genuine remorse and otherwise presented a strong subjective case including rehabilitative steps taken in the form of counselling.

DPP v Beroukas (No 2) [2024] ACTSC 294 (SCC 100 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order while offender serving suspended sentence – where breach was at lower end of seriousness – where offender had taken rehabilitative steps in the meantime – offender resentenced.

The Supreme Court has resentenced an offender following further breaches committed while he was serving a suspended sentence. The breaches were of a lower level of seriousness, and imposing the suspended sentence would be disproportionate.  The offender had also taken steps while in the community to rehabilitate. To avoid undoing the offender’s progress, the court resentenced the offender, imposing a longer sentence than that previously imposed but again suspending the sentence on condition that the offender comply with a 12-month good behaviour order.

DPP v Allred (No 2) [2024] ACTSC 243 (SCC 314 of 2022, SCC 315 of 2022; SCC 48 of 2023; SCC 49 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – s 80ZE cancellation of the Drug and Alcohol Treatment Order for unsatisfactory circumstances – imposition or resentence – breaches of treatment order obligations – discharge from residential facility – guarded prospects of rehabilitation – imposition instead of resentence – rehabilitation through parole.

The Supreme Court has sentenced an offender to a period of imprisonment of 3 years 10 months imprisonment, with a non-parole period of 2 years, 1 month, and 10 days. The offender was sentenced for offences including driving at police, two counts of driving while disqualified, dishonestly driving a motor vehicle without consent, and aggravated dangerous driving. The sentence was imposed pursuant to 80ZE(2) of the Crimes (Sentencing) Act 2005 (ACT), following the cancellation of the offender’s Drug and Alcohol Treatment Order.

DPP v Sullivan (No 2) [2024] ACTSC 296

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – aggravated robbery – extensive agreed facts – circumstantial case – coincidence evidence – identity of offender only issue for determination – CCTV footage

The Supreme Court has found the accused guilty of two counts of aggravated robbery. The primary issue at the judge-alone trial was the identification of the accused. The accused was the known perpetrator of a third robbery. The prosecution relied on coincidence reasoning to prove that the accused committed the two earlier robberies due to numerous similarities common to each of the offences. The Court found that there was no rational explanation for the circumstances established by the evidence other than the accused being the offender who committed all three of the robberies.

Decision Restricted - [2024] ACTSC 285

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –– application to withdraw guilty plea to count of assault occasioning actual bodily harm – underlying circumstances surrounding the plea – consideration of the principles in R v Gomez [2007] ACTCA 21; 1 ACTLR 145 and White v R [2022] NSWCCA 241; 110 NSWLR 163 – test in Gomez applied - whether miscarriage of justice would result if plea not withdrawn – applicant did not have a sufficient understanding of what he was pleading guilty to – applicant has asserted a version of events inconsistent with his guilt on the count – applicant denied essential element of that charge – application allowed

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.BakerJ@courts.act.gov.au

Marhaba v Chen (No 2) [2024] ACTSC 288

PRACTICE AND PROCEDURE – COSTS – where plaintiff successful in personal injury claim – where judgment sum awarded was less than the jurisdictional limit of the Magistrates Court – application of r 1725 of the Court Procedures Rules 2006 (ACT) – where plaintiff’s claim was complex but quantum of claim exaggerated – alternative costs order made – offers of compromise made under the Rules – Calderbank offers – where offers not accepted and judgment less favourable to plaintiff – where period of acceptance of offers was 4 days – offers not open for reasonable period under the Rules – not unreasonable for plaintiff to reject offer in the circumstances

The Supreme Court has varied a costs order previously made on 26 July 2024 following the plaintiff’s success in a personal injury claim arising from a motor vehicle accident.  The defendant sought to rely upon offers made under part 2.10 of the Court Procedures Rules 2006 (ACT) and alternatively relied upon Calderbank principles.  Neither offer was effective as the Court found that the offers were only open for 4 business days, which was not a reasonable time in the circumstances. Alternatively, it was not unreasonable for the plaintiff not to respond to the offers for the same reason.

However, as the plaintiff had succeeded in an amount that was within the jurisdiction of the Magistrates Court, the defendant argued the plaintiff should not be entitled to the full amount of her costs on the ordinary basis.  In the exercise of the Court’s discretion and having regard to the complexity of the matter notwithstanding the amount ultimately awarded, the defendants were ordered to pay 85% of the plaintiff’s costs.

DPP v RR [2024] ACTSC 279 (SCC 132 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated act of indecency without consent – offending involved family violence – serious offending – involved a breach of trust – offender knew victim was not consenting – low risk of re-offending – had engaged in rehabilitation after being remanded in custody – significant protective factors – limited criminal history – guilty plea – partly suspended sentence imposed – good behaviour order – offender to engage in sexual offending programs as directed.

The Supreme Court sentenced an offender for an act of indecency without consent, to 2 years, 4 months, and 27 days of imprisonment to be suspended that day, after the offender had already served 24 days of imprisonment, with a Good Behaviour Order to follow. The sentence was discounted by 15% for a plea of guilty. The offending was against the offender’s ex-partner and the offender knew that the victim was not consenting. The offender had rehabilitated himself to some extent, was not a risk of re-offending and had protective factors. The offender was directed to participate in education programs as directed during his good behaviour order, including a program targeting sexual offending.

DPP v Williams [2024] ACTSC 283 (SCC 158 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – single act of penile-vaginal penetration – limited remorse – guarded prospects of rehabilitation – some protective factors – minimal criminal history – period of full time imprisonment necessary to achieve sentencing purposes – partly suspended sentence imposed.

The Supreme Court has sentenced an offender for an offence of sexual intercourse without consent to 2 years of imprisonment reduced from 2 years and 6 months of imprisonment for a guilty plea. The sentence is to be suspended after the offender has spent 6 months in custody, upon entering into a good behaviour order for the balance of the sentence.

DPP v Okwechime [2023] ACTSC 199

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – applicant charged with aggravated burglary, damage property and theft – where investigation into further criminal conduct ongoing – where information obtained about applicant associating with outlaw motorcycle gang – where lengthy criminal antecedents included multiple breaches of bail and failure to appear – bail refused

DPP v Okwechime (No 2) [2024] ACTSC 34

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – alleged breach of s 230 of the Crimes Act 1900 (ACT) – Acting Sergeant directed officers to take photographs of accused – whether there is statutory capacity to delegate the power under s 230 – definition of “take” in s 185 includes “requesting another person to take” photographs – whether an Acting Sergeant is a “Sergeant” – police services provided to the Territory by the Australian Federal Police (AFP) – Territory references to “rank” are interpreted by reference to Commonwealth laws establishing the AFP – Australian Federal Police Act 1979 (Cth) picks up powers conferred by Territory laws and applies them to AFP officers – Territory laws apply to an acting appointee as if they hold the actual office

CRIMINAL LAW – POLICE – Rights, powers and duties – pre trial application to exclude evidence – scope of premises identified in search warrant – where police searched vehicle parked in car parking space allocated to unit the subject of the search warrant – whether a car parking space or storage shed associated with a unit falls within the “premises” described by reference to the unit number – consideration of Unit Titles Act 2001 (ACT) – a unit includes any unit subsidiary shown on the units plan as annexed to the unit – car parking spaces and storerooms capable of registration as unit subsidiaries – search of vehicle in car parking space permitted by the search warrant

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – alleged non compliance with ss 23F, 23H and 23V of the Crimes Act 1914 (Cth) – where accused was a “protected suspect” – breach of s 23V not made out as questioning of accused captured on police body worn camera footage – breach of s 23F not made out as accused cautioned at beginning of questioning and periodically throughout execution of warrant – police failed to contact an Aboriginal legal assistance organisation and to offer accused an interview friend – established breach of s 23H

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – contravention of s 23H Crimes Act 1914 (Cth) – police failed to contact an Aboriginal legal assistance organisation or arrange an interview friend – accused helped police to locate items listed in search warrant – applicants failed to establish that compliance with s 23H would have meant police did not locate items – consideration of factors in s 138(3) Evidence Act 2011 (ACT) – desirability of admitting evidence outweighs undesirability of admitting evidence obtained in the way that it was

The Supreme Court has ruled on a pre-trial application to exclude evidence obtained during the course of, and subsequent to, the execution of a search warrant. Police obtained evidence sought to be relied on at the trial. The applicants alleged breaches of ss 23F, 23H and 23V of the Crimes Act 1914 (Cth) arising from the manner in which the search warrant was executed. The court determined that only a breach of s 23H was established, arising out of the police’s failure to contact an Aboriginal legal assistance organisation and to offer the accused an interview friend. However, the applicants failed to establish that compliance with s 23H would have prevented police from locating the items and thus the evidence was not inadmissible.

The applicants further alleged a breach of s 230 of the Crimes Act 1900 (ACT). The applicants argued that an “Acting Sergeant” was not a “Sergeant” for the purposes of s 230. The court held that, in circumstances where police services are provided to the Territory by the Australian Federal Police (AFP), Territory references to “rank” are interpreted by reference to the Commonwealth laws establishing the AFP. The Australian Federal Police Act 1979 (Cth) picks up the powers conferred on police by Territory laws and applies them to AFP officers. Therefore, Territory laws apply to an acting appointee as if they hold the actual office.

Finally, the court held that a vehicle located in a car parking space allocated to the unit the subject of the search warrant was within the “premises” identified in the search warrant. By reference to the Unit Titles Act 2001 (ACT), the court found that a unit includes any unit subsidiary shown on the units plan as annexed to the unit. As the car parking spaces were likely to be unit subsidiaries, the search of a vehicle in the unit’s allocated car parking space was held to be lawful.

DPP v Cross [2024] ACTSC 277

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – extensive agreed facts – aggravated burglary – theft – take motor vehicle without consent – circumstantial case – strands in the cable case – identification evidence – DNA evidence – reasonable hypothesis consistent with innocence – potential twin brother – verdicts of not guilty

The Supreme Court finds accused not guilty of 2 counts of burglary, 2 counts of take motor vehicle without consent, 2 counts of drive motor vehicle without consent, 2 counts of theft, two charges of drive while suspended, make off without payment and dishonestly obtain property by deception. Primary issue at trial was the identification of the offender. The Court found that the evidence did not exclude the reasonable possibility of the accused’s brother being his identical twin and this was a hypothesis consistent with innocence as it could not be excluded that the accused’s brother was the individual identified.

DPP v Okwechime (No 3) [2024] ACTSC 275

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – aggravated burglary – property damage – theft – extensive agreed facts – circumstantial case – strands in the cable case – identification evidence – identity of accused only issue for determination – verdicts of not guilty.

SupCt finds accused not guilty on three counts of aggravated burglary, damage property and theft. The only issue for determination was the identification of the accused. It was a circumstantial case, and the Court could not be satisfied beyond reasonable doubt that the accused was the same person who committed the offences.

DPP v Hogan [2024] ACTSC 245 (SCC 134 of 2024; SCC 135 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – family violence offences – choking and strangulation – impersonating territory official – contravention of family violence order – coercion and controlling behaviour viewed in context – where the Court is not satisfied that substance dependency substantially contributed to part of offences sought to be incorporated into a Treatment Order – history of non-compliance with community based orders and family violence orders – childhood trauma and complex history of disadvantage – Bugmy principles – Drug and Alcohol Treatment Order not imposed – rehabilitation through parole.

The Supreme Court sentenced an offender for a series of family violence offences, including choke/suffocate/strangle, threat to kill, contraventions of family violence order and impersonating a police officer. The Court considered the complexity of coercion and controlling behaviours in the circumstances of the offending, the age of the offender, the limited insight and remorse expressed, as well as the history of complex trauma within the offender’s family background. The Court further determined that substance dependency did not substantially contribute towards all of the offences, noting that some of the offences were committed while the offender was in custody for family violence offences against the same victim. The Court declined to make a Drug and Alcohol Treatment Order and imposed a total sentence of 3 years imprisonment, including a nonparole period of 14 months expiring in April 2025.

Law Society v Ford [2024] ACTSC 255

PRACTICE AND PROCEDURE – MEDIATION – Application by defendant for court-ordered mediation pursuant to r 1179 of the Court Procedures Rules 2006 (ACT) – application opposed by plaintiff – utility of mediation in matter with long procedural history and where parties have significantly conflicting positions – application dismissed.

PRACTICE AND PROCEDURE – DIRECTIONS – Application by plaintiff to retrospectively vary timetable for filing of written submissions – where consent refused by defendant unreasonably – where plaintiffs filed detailed affidavit evidence explaining delay – order varying filing timetable appropriate .

The Supreme Court has dismissed an application in proceeding by the defendant in this matter and allowed an application in proceeding by the plaintiff. The application by the defendant was brought under r 1179 of the Court Procedures Rules 2006 (ACT) seeking a court-ordered mediation and a stay of proceedings pending the outcome of the mediation. The long procedural history of the matter and significant difference in positions of the parties in relation to the key issues in dispute led to a conclusion by the court that there would be no utility in ordering a mediation.

The plaintiff’s application sought a retrospective variation of directions to reflect a delay by the plaintiff in filing written submissions. The defendant did not consent to an extension of time and therefore an application in proceeding was necessary. Solicitors for the plaintiff provided detailed affidavit evidence to support their request for a retrospective variation and provided reasonable explanations for the delay, therefore a retrospective variation was considered to be appropriate.

Doma ACT Pty Ltd v LN Sydney Pty Ltd [2024] ACTSC 270

EQUITY – RECTIFICATION – mistake in recording name of corporate entity in unilateral instrument – company resolution to distribute ordinary income to corporate entity – where clear and convincing proof of makers’ intentions corroborated by contemporaneous documents – where resolution does not give effect to makers’ intention – where mistake clearly identifiable – resolution rectified

The Court has granted rectification in respect of a company resolution made in June 2022, for a mistake made identifying the wrong corporate entity as a recipient of a $10 million distribution of income by the plaintiff.  The Court found the resolution (a unilateral instrument) did not reflect the intentions of the directors at the time it was executed, having regard to the contemporaneous financial documents and records of advice given and approved at the time the resolution was made.  The instrument recording the resolution was capable of rectification by substituting the name of the correct entity, which was Little National Hotel Pty Limited.

Tong v Tong [2024] ACTCA 27

Judgment Summary

APPEAL – EQUITY – Undue influence – appeal on ground that primary judge erred in finding that inter vivos transfer was result of undue influence – where primary judge found relationship gave rise to presumption of undue influence – where presumption was not rebutted – whether open to primary judge to find presumption of undue influence – consideration of combined force of circumstances – no error established – appeal dismissed

APPEAL – TRUSTS – Constructive trusts – appeal on ground that primary judge erred in finding that property was held by the deceased’s sister on trust for the benefit of the deceased – where primary judge found the deceased considered property to be his own – where primary judge found the deceased to have paid his sister amount equal to his equity in the property – whether open to primary judge to find existence of constructive trust – no error established – appeal dismissed

STATUTES – INTERPRETATION – Interpretation of r 5413 of Court Procedures Rules 2006 (ACT) – where respondents’ cross appeal sought to “amend” orders of primary judge – whether reference to “amend” is different to “appeal” – whether rule places lesser burden on respondent seeking to amend – whether seeking to amend requires party to establish error – establishment of error required – no error established – cross appeal dismissed

The Court of Appeal has unanimously dismissed an appeal against a decision of a single judge which had found that a gift of $360,000 made by a deceased to his brother in the weeks before his death was the result of undue influence, and that the deceased’s residential property was held by his sister on trust for the benefit of the deceased.

The court found that the primary judge had not erred in her assessment of the relationship that existed between the deceased and his brother prior to his death as one which gave rise to the presumption of undue influence. The court upheld the finding of the primary judge that the presumption had not been rebutted.

The court also found that the primary judge had not erred when she found that the deceased’s family home was, in fact, held on trust for the deceased by his sister. The sister argued that the house was hers and was an investment property which she “rented” to the deceased. However, the court upheld the finding of the primary judge that this was not the case and that the deceased had merely transferred legal ownership to his sister while maintaining beneficial ownership. The deceased’s widow and four children continue to live in the home.

The court also dismissed a cross-appeal that would have substituted the deceased’s widow and eldest son as executors of the deceased’s estate and as trustees to the trust established for the benefit of the deceased’s four children. The court found that the primary judge had not erred when she made the ACT Public Trustee and Guardian the executor and trustee and found that the possibility for a conflict of interest to arise was too great in the event that the deceased’s widow and eldest son were appointed.

Robertson v DPP [2024] ACTCA 26

Judgment summary

APPEAL – CRIMINAL LAW – appeal against sentence – attempted murder – breach of family violence order – whether discount for plea of guilty inadequate – whether total effective sentence and non-parole period manifestly excessive – where offence of attempted murder fell into “worst category” of offending – where no mitigating subjective factors apart from plea of guilty – appeal dismissed.

The Court of Appeal has dismissed an appeal against a sentence of imprisonment for a term of 27 years and 3 months, which was imposed for the offences of attempted murder and attempted breach of a family violence order (FVO). The appellant had challenged the 10% discount applied for a plea of guilty in respect of the attempted murder offence as well contending that the sentence was manifestly excessive (both the individual and aggregate terms, and the non-parole period).

The Court of Appeal unanimously held that there was no error in respect of either ground.  The attempted murder offence was properly classed as a “worst category” offence.  The approach taken to the guilty plea was discretionary and ensured the lesser penalty was not unreasonably disproportionate to the seriousness of the offence.

The conduct constituting the attempted murder offence was grave and the harm caused extreme.  Given the lack of mitigating circumstances and remorse, the recidivist violent nature of the offender and his failure to engage fully with the rehabilitative opportunities which had been provided to him in the past, the sentence imposed by the sentencing judge was open.

Otherwise, there was no manifest excess established in relation to the attempted breach of the family violence order offence, the imposition of each sentence consecutively, or the length of the non-parole period set.

DPP v Gilbey; DPP v Goodwin [2024] ACTSC 265 (SCC 137 of 2023; SCC 139 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – co-offenders – aggravated robbery – home invasion – serious offending – where victim suffered serious injury – low value of property taken – distinction between the role of each offender – difference between co-offender’s prospects of rehabilitation – offences committed on conditional liberty – consideration of parity.

The Supreme Court has sentenced two co-offenders for aggravated robbery by joint commission. Co-offender Gilbey received a sentence of imprisonment for 3 years, 7 months and 6 days. Co-offender Goodwin received a sentence of 3 years, 1 month and 24 days to be suspended after 1 year, 2 months and 11 days. The co-offenders each breached numerous Good Behaviour Orders attached to Suspended Sentence Orders at the time of committing the offence. Suspended sentences were imposed.  Significant distinction between the role of each co-offender in the offending conduct and their respective prospects for rehabilitation.

Armstrong v Saddler [2024] ACTSC 263

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – appeal against sentence imposed by Magistrates Court – assault occasioning actual bodily harm – family violence – ex tempore judgment – error in considering the availability of a good behaviour order – where appellant seeking non-conviction order – effect of conviction on appellant’s employment - no lesser sentence than imposed by Magistrate appropriate in all of the circumstances – appeal dismissed.

The Supreme Court has dismissed an appeal by an offender against a conviction and fine of $1400 that was imposed in the Magistrates Court for a charge of assault occasioning actual bodily harm in a family violence context. The appellant sought a non-conviction order. The Court found the Magistrate erred when considering the effect of a good behaviour order which may be attached to a non conviction order. However, the Court found that no lesser sentence than that imposed by the Magistrate was appropriate in all of the circumstances.

Block 27 Pty Ltd v Qursa Pty Ltd (No 2) [2024] ACTCA 25

PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Application to set aside orders of the Court of Appeal – question of practice and procedure able to be determined by single judge – where orders were drawn up, settled and signed by Registrar on own initiative – whether orders were “filed in the court” for the purposes of r 1613 of the Court Procedures Rules 2006 (ACT) –consideration of process for filing of orders under r 1606 – orders were “filed in the court” – application dismissed

The Court of Appeal has dismissed an application to set aside its own orders. The court had previously ordered that the appeal be dismissed, and the application sought to set that aside on the assertion that the orders denied the appellant procedural fairness.

Soon after the original Court of Appeal judgment had been handed down, the orders were drawn up, settled and signed by the Registrar. The parties agreed that the application was able to be heard by a single judge constituting the Court of Appeal, who determined that the orders were considered “filed in the court” and were, therefore, considered final and unable to be recalled.

DPP v Coulter [2024] ACTSC 262 (SCC 18 of 2024; SCC 19 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated dangerous driving – drive vehicle near police – drive motor vehicle without consent – drive while disqualified – serious offences – criminal history including driving offences – committed while offender was on conditional liberty –  where offender had disadvantaged childhood – Bugmy principles applied –  offender demonstrated remorse – positive prospects of rehabilitation – risk of institutionalisation – partially suspended sentence imposed.

The Supreme Court has sentenced an offender to imprisonment for 3 years and 2 months to be suspended after 14 months, for driving related offences included dangerous driving, driving a stolen vehicle, driving while disqualified and driving near two police officers. The offender entered an early plea of guilty and was afforded a 25% discount on the sentence. The offender had a significantly disadvantaged childhood such that his moral culpability was reduced, showed genuine remorse and had some prospects for rehabilitation.

In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253

ESTATES – Application for judicial advice – solicitor’s lien –whether administrator is justified in bringing proceedings against former solicitors of the deceased – where administrator pendente lite sought deceased’s files from solicitor – where basis of lien related to outstanding fees in respect of files of deceased’s husband and further sought costs of resolving the lien claimed – judicial advice given – administrator justified

DPP v XK (No 2) [2024] ACTSC 215

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender committed to the Supreme Court for breach of suspended sentences – s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) – finding of guilt a necessary precondition to committal under s 107(2).

The order of Special Magistrate Richter dated 9 July 2024 committing the offender to the Supreme Court to be dealt with for breach of the offender’s good behaviour obligations is set aside.

DPP v Rhodes [2024] ACTSC 216 (SCC 86 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –attempt robbery – assault occasioning actual bodily harm – damage property – possess knife in public – Drug and Alcohol Treatment Order Assessment – refusal to participate in therapeutic community while in custody – limited insight and remorse for offending – history of non-compliance with community based orders – not appropriate to impose a Drug and Alcohol Treatment Order – age and subjective circumstances of the offender – rehabilitation through parole

The Supreme Court sentenced an offender for attempt robbery, damage property, making a demand accompanied by a threat, assault occasioning actual bodily harm and possess a knife in a public place. The offender sought to be placed on a Drug and Alcohol Treatment Order to serve the term of the sentence to be imposed for the offences. The Court considered the circumstances of the offending, the lack of engagement by the offender in the therapeutic community while in custody and the limited evidence of remorse expressed by the offender in reports for suitability for a Drug and Alcohol Treatment Order. The Court also noted the limited support and connection between the offender and his family due to the offender’s ongoing drug dependency. The Court declined to make a Drug and Alcohol Treatment Order and imposed a term of imprisonment of 22 months, with nonparole period ending in February 2025.

DPP v Hammond (No 2) [2024] ACTSC 177 (SCC 56 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – unsatisfactory circumstances – nature of breach of Treatment Order – where extent of compliance had been poor – limited progress in rehabilitation while in custody – imposition s 80ZE – rehabilitation through parole

The Supreme Court sentenced an offender whose Drug and Alcohol Treatment Order imposed in relation to family violence offences was cancelled on unsatisfactory circumstances. The offender tested positive to drug and alcohol on multiple occasions, breached curfew conditions and missed case management appointments while on the Treatment Order. Following the cancellation of the Treatment Order, the offender had engaged in efforts towards rehabilitation. However, he had not engaged with the therapeutic community in custody and showed limited insight into his offending. The Court imposed the balance of the term of imprisonment incorporated into the custodial part of the Treatment Order and set a nonparole period to end in January 2025, with a recommendation to the Sentence Administration Board for the offender to engage in drug rehabilitation and family violence intervention programs while on parole.

DPP v Myles (No 2) [2024] ACTSC 231 (SCC 115 of 2023; SCC 116 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Drug and Alcohol Treatment Order cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – resentence – rehabilitation in custody – intensive correction order.

The Supreme Court resentenced an offender whose Drug and Alcohol Treatment Order was cancelled for unsatisfactory circumstances. The offender was sentenced to 3 years 11 months for burglary, possession of stolen property, and a series of driving offences, which, on conviction and sentence, were incorporated into the custodial part of a Drug and Alcohol Treatment Order. Following the cancellation of the Treatment Order, the offender actively participated in rehabilitation in custody, making him eligible for further rehabilitation programs in community on release. The Court also considered a report from the Corrective Services, which assessed the offender as suitable for an intensive correction order where the offender would receive support from his family to comply with the order while residing with them. Noting the strong prospects of rehabilitation, the Court resentenced the offender by ordering that the remainder of the term of imprisonment to be served through an intensive correction order.

Alananzeh v Zgool Form Pty Ltd (No 2) [2024] ACTSC 258

PRACTICE AND PROCEDURE – Application for stay of order pending appeal and cross-appeal – Judgment in favour of plaintiff in personal injury proceeding – whether impecunious plaintiff – whether serious issues for determination raised on cross-appeal – whether real risk that second defendant may suffer prejudice or damage if the stay is not granted – whether balance of convenience favours maintenance of status quo pending appeal proceeding – where competing rights of the parties requires balance of hardship produced by stay on plaintiff – conditional stay granted

The Supreme Court has stayed a judgment which found a subcontractor liable for damages in negligence in the amount of $243,900, pending determination of an appeal from the plaintiff worker seeking to increase the judgment amount, and a cross-appeal by the subcontractor on liability and quantum.  The plaintiff had lodged a statutory demand for the full judgment sum against the subcontractor and there was evidence he was in financial hardship. The subcontractor sought a stay of the judgment on the basis that if it was successful on the appeal, the plaintiff would not be able repay any part of the judgment sum that had been paid in the meantime. The SupCt found serious questions to be tried on the cross-appeal and granted the stay on condition that the subcontractor pay $45,000 to the plaintiff to partially ameliorate the financial hardship to the plaintiff in the meantime.

DPP v Lowes [2024] ACTSC 252 (SCC 90 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – where offender misappropriated funds of employer by diverting ticket sales receipts from employer’s account to personal account to fund gambling addiction – simple method of offending - mid-range of objective seriousness – guilty plea, expression of remorse, family caring responsibilities and pro-social behaviour – intensive correction, community service and reparation orders appropriate.

The Supreme Court has sentenced an offender to two years and one month’s imprisonment on one charge of obtaining a financial advantage by deception. The offender was an Events Coordinator at Master Builders Australia Ltd, who misappropriated company funds by replacing the recipient bank account details of ticket sales funds from the company account to his own personal account. This offending was done to fund the offender’s gambling addiction.

The offender pleaded guilty at an early stage of proceedings, demonstrated remorse for his conduct, participated actively in the community and had significant family caring responsibilities. In the circumstances, the court decided upon a sentence of two years and one month’s imprisonment to be served by intensive correction in the community, a reparation order of $5414.57 to the victim and an additional condition of 200 hours of community service to be performed.

DPP v Ledbrook-Miller [2024] ACTSC 254 (SCC 85 of 2023; SCC 86 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – aggravated property damage – family violence offences – Verdins and Bugmy considerations – discount for guilty plea – where offer to plead guilty not accepted by prosecution – offender sole carer of his children – imposition of suspended sentences backdated by pre-sentence imprisonment

DPP v Joliffe-Cole [2024] ACTSC 256 (SCC 39 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – in company – injury to victim – low value of property taken – where offender had disadvantaged childhood and illicit substance abuse issues – expressed genuine remorse – significant criminal history – timing of plea of guilty in the Magistrates Court – twenty-five per cent discount applied.

The Supreme Court has sentenced an offender to a sentence of imprisonment for 2 years 7 months and 15 days, for a charge of aggravated robbery. The offender entered an early plea of guilty and was afforded a 25% discount on the sentence. The offending caused harm to the victim, was in company, involved the use of a weapon and the taking of some property of low value. The offender had a disadvantaged childhood, showed genuine remorse and had good prospects for rehabilitation.

DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221 (SCC 227 of 2023; SCC 228 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – profound family tragedy – sexual offending against siblings and cousin – offender a young person for some offending – Bugmy and Verdins principles engaged – significant weight attributed to remorse – prospects of rehabilitation somewhat better than only guarded – offender sentenced to imprisonment

The Supreme Court has sentenced an offender for sexual offending against his relatives. A “profound family tragedy”. The offender was a young person for 6 of the counts. The offender demonstrated both significant remorse and willingness to seek psychological treatment.

The offender was sentenced to a total sentence of 6 years and 6 months imprisonment, backdated to take into account 2 years and 7 days already spent in custody. A non-parole period of 2 years and 3 months was set for the adult offences, allowing for a significant period of community supervision if and when granted parole. That is an effective non-parole period of 3 years and 3 months.

In the Estate of Nola Marie Harrington [2024] ACTSC 250

PROBATE APPLICATION – JURISDICTION, PRACTICE AND PROCEDURE – revival of revoked will by codicil – where no reference in codicil to intermediary will – whether revived will revoked intermediary will.

DPP v Baudinette [2024] ACTSC 157 (SCC 9 of 2024; SCC 10 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission aggravated robbery – possess knife without reasonable excuse – commission of offences during an Intensive Correction Order – where the Intensive Correction Order had been cancelled by Sentence Administration Board prior to imposition of sentence – not in the interests of justice to cancel – insight and efforts towards rehabilitation – Drug and Alcohol Treatment Order imposed.

The Supreme Court sentenced an offender for joint commission of aggravated robbery and possess a knife in public without reasonable excuse. The offender committed the offences while on an Intensive Correction Order. Noting that the Sentence Administration Board has cancelled the Intensive Correction Order on its own motion and returned the offender to custody prior to the imposition of the sentence for the offences, the Court determined that it was not in the interests of justice to cancel the Intensive Correction Order. The Court considered the circumstances of the offending and the offender’s non-linear history of rehabilitative efforts, as well as the recommendations by the authors of the Drug and Alcohol Treatment Assessment Reports. The Court determined that the offender had prospects of rehabilitation and sentenced the offender to a Drug and Alcohol Treatment Order for a total period of 1 year 10 months, with 12 months of treatment and supervision on the Drug and Alcohol Sentencing List.

DPP v Bower (No 3) [2024] ACTSC 249 (SCC 31 of 2021; SCC 32 of 2021; SCC 78 of 2021; SCC 79 of 2021; SCC 170 of 2022; SCC 171 of 2022)

CRIMINAL LAW – Judgment and Punishment – breach of suspended sentence – obtaining property by deception –whether to resentence – where breaches not especially serious – breaching conduct reflective of difficulty engaging with supervisions – where offender had not re-offended for a significant period – where offender had taken rehabilitative steps – re-sentenced and Good Behaviour Order imposed

The Supreme Court has re-sentenced an offender who breached the obligations of her Good Behaviour Order (GBO) which were imposed upon her as part of a Suspended Sentence Order (SSO). The offender’s GBO was cancelled, and she was re-sentenced to a total period of imprisonment of 3 years and 6 months suspended immediately on the condition that she be of good behaviour for 12 months. While the offender had experienced difficulty in complying with the supervision obligations of her GBO, she had made significant progress toward rehabilitation as demonstrated by a lack of re-offending.

DPP v John (No 2) [2024] ACTSC 199 (SCC 318 of 2022; SCC 62 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – s 80ZD cancellation of Drug and Alcohol Treatment Order – breach by commission of offence while subject to Treatment Order – s 80ZC suspension of treatment and supervision part – statutory construction – “subject to” a sentencing order – temporal co-existence of the Treatment Order and a sentencing order – s 34AA submissions on range of sentences – where time in custody prior to sentencing has exceeded length of the sentence – s 80ZD cancellation not enlivened – Treatment Order amended

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – take motor vehicle without authority – damage property – offending while on conditional liberty – nature and circumstances of the offence – term of imprisonment imposed – time served

The Supreme Court has sentenced a participant of the Drug and Alcohol Sentencing List for take motor vehicle without authority and damage property. The offences were committed in the course of the participant’s Drug and Alcohol Treatment Order following the participant’s release from a residential facility. Accordingly, the Court commenced a review of the participant’s Treatment Order noting the participant was in breach of the conditions of the order.

The participant had been in custody since the arrest following the further offending for approximately six months by the time of the sentence proceeding. Noting the range of sentence submitted for the further offences under s 34AA of the Crimes (Sentencing) Act, the Court considered the time served in custody by the participant prior to sentencing would have exceeded the length of the sentence of imprisonment to be imposed for the offences.

The Court determined that the interpretation of “subject to” under s 80ZD of the Crimes (Sentencing) Act requires temporal co-existence of the Treatment Order and a sentencing order under s 12A of the Crimes (Sentencing) Act. The Court imposed 5 months imprisonment for the further offences and concluded that s 80ZD cancellation of the Treatment Order was not enlivened, as the offender was not subject to a sentencing order with time served for the further offences.

R v Cooper [2024] ACTSC 235 (SCC 314 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges of possessing or controlling child abuse material, using a carriage service to access, make available, and solicit child abuse material, possessing child exploitation material, and failing to report a change of details as a child sex offender – offender possessed 283,167 files which were images or video identified as child abuse material – previously convicted for possession of child abuse material – diagnosed with Autism Spectrum Disorder and Paedophilic Disorder – where offender seems to have regarded it as a hobby like stamp collecting – sentence to be appropriate in all circumstances and not a crushing one – cumulative sentence of nine years and eight months with aggregate non-parole period for Commonwealth and Territory offences of five years and seven months

The Supreme Court has sentenced an offender to nine years and eight months’ imprisonment with an aggregate non-parole period of five years and seven months for multiple charges, including possessing or controlling child abuse material, using a carriage service to access, make available, and solicit child abuse material, possessing child exploitation material, and failing to report a change of details as a child sex offender.

The offender, who had a previous conviction for possession of child abuse material, pleaded guilty to the charges, including possession of 283,167 files which were images or video identified as child abuse material. The offender’s lawyers submitted five psychological reports of the offender, including diagnoses of Autism Spectrum Disorder and Paedophilic Disorder, which the court took into account when deciding on an appropriate sentence.

Buttriss v Jarvis [2024] ACTSC 247

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against conviction – whether a miscarriage of justice occurred – whether the verdict was unreasonable or unsupported by the evidence – whether the Special Magistrate made errors of law – assessment of the credibility of prosecution witnesses – error not established – each ground of appeal not upheld – appeal dismissed – conviction confirmed.

The Supreme Court has dismissed an appeal from the Magistrates Court against a conviction on a charge of aggravated common assault; the circumstance of aggravation was family violence. The grounds of appeal were that there had been a miscarriage of justice, that there was insufficient evidence to justify the conviction, that errors of law and fact had been made by the Special Magistrate and that there was error in the assessment of the credibility of prosecution witnesses by the Special Magistrate. The Court found none of the grounds of appeal had been established and dismissed the appeal, confirming the conviction.

DPP v Liu [2024] ACTCA 23

Judgment Summary

APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – sexual intercourse without consent – act of indecency – sexual offending by massage therapist – whether sentencing judge erred in not being satisfied beyond reasonable doubt of the offender’s motive – specific error established – offender was motivated by sexual gratification – residual discretion not exercised – appeal allowed – offender resentenced.

The Court of Appeal has allowed a prosecution sentence appeal. Chief Justice McCallum and Taylor J held that it was “not open to the sentencing judge not to be satisfied beyond reasonable doubt” that the offending was sexually motivated.  The offender was resentenced to a total effective sentence of 5 years, 5 months and 20 days’ imprisonment, with a non-parole period of 3 years. Justice Loukas-Karlsson dissented, finding no error.

R v Novakovic; DPP v Novakovic [2024] ACTSC 219

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Good Behaviour Order – s 112 Crimes (Sentence Administration) Act 2005 (ACT) application to amend –  where applicant subject to curfew conditions for three years – whether curfew conditions onerous or excessive –  whether curfew conditions limit applicant’s rehabilitation and integration – power to amend GBO that has been transferred to another state or territory – application granted

DPP v Matas [2024] ACTSC 234 (SCC 271 of 2023; SCC 313 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated sexual intercourse without consent - attempted aggravated sexual intercourse without consent - aggravated sexual assault in second degree - aggravated sexual assault in third degree - aggravated act endangering health - aggravated common assault - aggravated assault occasioning actual bodily harm - aggravated capture intimate data - using a carriage service to menace, harass, or cause offence - aggravated non-consensual distribution of intimate images – escape arrest – possess prohibited weapon –  Bugmy and Verdins principles engaged – countervailing factor

The Supreme Court has sentenced an offender for 25 offences, including 11 charges of aggravated sexual intercourse without consent (ACT) and a Commonwealth offence of using a carriage service to menace, harass, or cause offence. All but three of the 25 offences were statutorily aggravated by virtue of family violence.

The offender was on bail at the time of the offending. The Court considered the offender’s prospects of rehabilitation to be guarded at best.

The overall aggregate sentence is 13 Years 2 months 29 days. The non-parole period is approximately 60%.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) [2024] ACTCA 21

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Whether appeal can be made from an interlocutory decision when substantive proceedings have been dismissed – whether an appeal from an interlocutory decision separate from an appeal of the substantive matter is pointless

(1)          The application for leave to appeal filed on 24 June 2024 is dismissed

(2)          The applicant is to pay the respondent’s costs of the application

DPP v Basic (No 2) [2024] ACTSC 187 (SCC 112 of 2023)

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – Acts endangering life – choke, suffocate or strangle – render insensible or unconscious – family violence – complainant shouting at accused and throwing watermelon on floor – accused held neck of complainant to get her to “shut up” – whether complainant was rendered insensible or unconscious – consideration of the meaning of “apply pressure, to any extent” – not found beyond reasonable doubt that complainant was rendered insensible or unconscious – found beyond reasonable doubt that accused applied pressure to complainant’s neck – guilty of statutory alternative

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – serious offence but offending at low end of objective seriousness –submissions made for non-conviction order – importance of general deterrence in context of family violence offending – convicted and sentenced to four months’ good behaviour

The Supreme Court has sentenced an offender to four months’ good behaviour after finding him guilty of unlawfully choking his partner during an argument between the couple where the complainant was shouting and had thrown watermelon on the floor.

The complainant, an international student, reported the incident to police immediately after it occurred, but later tried to “cancel” the charge, claiming that police had misunderstood what she had told them. Despite her attempts to cancel the charge, the complainant maintained that the offender had placed his hand on her neck, which the court considered reinforced the credibility of her complaint.

Marhaba v Chen [2024] ACTSC 241

NEGLIGENCE – CAUSATION – DAMAGES – Motor vehicle accident – breach of duty admitted – extent of injury suffered –extent to which disabilities attributable to accident – where pre-existing back injury – where later spinal degeneration – whether plaintiff continued to experience physical and psychological sequelae from the accident – where credit of plaintiff in issue – extent of domestic assistance required – damages awarded in reduced amount to take account of pre-existing injury and degenerative condition

The Supreme Court has awarded damages for a plaintiff who was involved in a motor vehicle accident in 2016.  A breach of duty of care was admitted by the defendants, being the owner of the car at fault and the insurer. The plaintiff had pre-existing back injuries and psychological vulnerabilities.  Medical evidence further revealed spinal degeneration.  At issue was whether the plaintiff had suffered any compensable injury attributable to the accident and if so, to what extent.

The Court found that the accident caused a soft tissue injury to the plaintiff’s neck, and aggravated the plaintiff’s pre-existing back injury, but that the symptoms referable to the accident had now been overtaken by the plaintiff’s spinal degeneration.

Further, the plaintiff had developed a somatic symptom disorder which was partially attributable to the accident, but due to the plaintiff’s pre-existing injuries and degenerative condition, there was a possibility that this disability would have developed independently of the accident.

Judgment was entered for the plaintiff against the first and second defendants in the sum of $155,524 plus costs.

Couper v City of Casey [2024] ACTSC 218

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tort committed in another jurisdiction – conflicting procedure – substantive law of that jurisdiction will apply – complex procedural steps held to be substantive law – Civil Wrongs Act 1958 (VIC) – Court Procedure Rules 2006 (ACT)

DPP v Umunakwe [2024] ACTSC 229

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for directed verdict – where evidence in respect of count alleging anal intercourse not strong – some evidence of anal sexual intercourse - high threshold for directed verdict not met – application refused.

MM v Australian Capital Territory (No 3) [2024] ACTSC 238

CIVIL PRACTICE AND PROCEDURE – Disclosure of protected confidences – Whether material in question is necessary for a fair trial – psychological damages only sought – treatment of psychological condition relevant

The Supreme Court has granted access to the defendant in a civil proceeding to subpoenaed materials identified as protected confidences pursuant to part 4.4 (division 4.4.3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Following an inspection of the subpoena material by the Court, the plaintiff was granted access to view those documents identified as containing protected confidences. The plaintiff then submitted that the material should not be disclosed to the defendant for the purposes of the proceedings. The Court found that the defendant should have access to the material, as it was unable to see how a fair trial could be conducted without their disclosure. The Court did however place conditions on the use of the materials, in order to ameliorate the genuine concerns of the plaintiff in relation disclosure of the protected confidences.

In the Estate of Gaie Frances Ross [2024] ACTSC 239

WILLS, PROBATE & ADMINISTRATION – INFORMALITY - Identical wills made by husband and wife – each testator mistakenly signs other testator’s will – single witness – application of s 11A of Wills Act 1968

In the matter of an application by Joshua Ceramidas [2024] ACTSC 214

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Application for urgent interlocutory injunction where Commission intends to receive submissions from Counsel Assisting in public – where statute does not specifically refer to submissions – whether implicit in the statute is power to order submissions to be heard in public – whether plaintiff has established a serious question to be tried – balance of convenience – where majority of evidence heard by Commission was heard in public

The Supreme Court has rejected an application seeking to prevent the ACT Integrity Commission from conducting oral submissions publicly in the Operation Kingfisher investigation. The injunction was sought on the basis that the Commissioner did not have power under the Integrity Commission Act 2018 (ACT) to direct that the closing submissions be conducted in public. The Court disagreed, found no serious question to be tried, and rejected the submission that the balance of convenience favoured the applicant. In the alternative, the applicant argued that the Commissioner’s decision to hold the submissions in public had been infected by apprehended bias. This argument was rejected by the Court, who held that a lay observer would not find an inappropriate connection between the Commissioner’s earlier statements of intention and its final decision of 6 July 2024 to hold the submissions in public.

Svilicich v Richmond Fellowship ACT Incorporated [2024] ACTSC 224

CIVIL LAW – PRACTICE AND PROCEDURE – COSTS – application by the Second Defendant seeking leave nunc pro tunc for the issue of NNPPs – parties agreed leave should be granted pursuant to s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the issuing of subpoenas – counselling and psychological records expressly sought after in the NNPPs – leave required – the Second Defendant is to pay the Plaintiff’s costs of the applications.

Gibson (a pseudonym) v Askim Pty Ltd ATF the Askim Trust trading as Central Café Group [2024] ACTSC 203

CIVIL LAW – NEGLIGENCE – personal injury – plaintiff contracted salmonella poisoning while working as a kitchen hand at the defendant’s café – whether plaintiff demonstrated on the balance of probabilities that she contracted salmonella poisoning from the café – coincidence reasoning - other patrons of the café also contracted same strand of salmonella bacteria - café was found to have committed numerous breaches of the Food Act 2001 (ACT) – whether the risk of the plaintiff contracting salmonella poisoning was foreseeable and not insignificant – whether defendant breached duty of care - defendant failed to provide soap to its employees and failed to properly refrigerate raw meat and chicken – whether the negligent conduct of the defendant was a necessary condition of the harm caused – liability established – damages awarded

The Supreme Court found the defendant was liable in negligence for the plaintiff contracting salmonella poisoning while working as a kitchen hand at the defendant’s café.  Five other patrons who ate at the café also contracted the same strand of salmonella bacteria. The Court found the defendant breached its duty of care by failing to provide soap to its employees and by not properly refrigerating raw meat, and that these breaches were a necessary condition of the harm caused. Damages in the sum of $65,573 were awarded to the plaintiff.

DPP v Saulo [2024] ACTSC 193 (SCC 4 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – reckless infliction of grievous bodily harm – continuation of an altercation at a nightclub – single punch – youthful offender –early guilty plea – where victim suffered life-altering injuries – where offender was serving an intensive correction order for a similar assault at the time of the offence.

The Supreme Court has sentenced a 21-year-old offender to imprisonment for a term of 6 years for an offence of recklessly inflicting grievous bodily harm during a night out in Canberra city.  The assault was a single unprovoked punch to the head rendering the victim unconscious and causing life-altering injuries.  The offender was serving an intensive correction order for offences of assault occasioning actual bodily harm at the time of the offence.

The Court gave considerable weight to the purposes of protection, denunciation and recognition of the harm suffered by the victim and his family. In recognition of the offender’s young age and interest of rehabilitation, the Court fixed a non-parole period of 3 years.

The Court held that an intensive correction order would not reflect the seriousness of the offence and the significance of the victim’s injuries.

The offender was also ordered to pay $7,311.25 for the victim’s medical expenses.

Kershaw v Wales [2024] ACTSC 228

CRIMINAL LAW – EVIDENCE – Family violence order – whether document recording hearsay evidence in court order sufficient to prove presence of the appellant when order made – Family Violence Act 2016 (ACT), pt 3

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Recognition of equivalent violence orders made interstate – where interstate legislative scheme provides for proof of notification of order and process not followed - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 98ZT; Family Violence Act 2016 (ACT), pt 9

The Supreme Court has allowed an appeal from the Magistrates Court. The defendant was convicted of two counts of contravening a family violence order made when he was a resident of NSW. The defendant appealed on the basis that there was insufficient proof that he was present when the order was made. This claim was upheld, and was supported by law enforcement not having followed a proof of notification process within family violence legislation for the recognition of orders made interstate.

Deputy Commissioner of Taxation v Aguer [2024] ACTSC 236

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Claim for various taxation monies – Income Tax Assessment Act 1997 (Cth) s 167 – Taxation Administration Act 1953 (Cth) pt IVC – income tax assessments not lodged – administrative penalties – penalisation of the defendant for failing to lodge income tax returns – judgment

The Supreme Court has ordered a defendant to pay the Deputy Commissioner for Taxation (Deputy Commissioner) $546,985.46, comprising amounts from income tax assessments made by the Deputy Commissioner for the 2014/2015, 2015/2016, and 2016/2017 financial years, FTL Penalty amounts, administrative penalties, and interest. While the Court held that the defendant had no legal or factual means to resist judgment against him, it considered that the defendant may have some future recourse in relation to the matter, resulting in the Court delaying entry of judgment for three weeks to allow the defendant time to commence any process available to him.

DPP v Gorman [2024] ACTSC 233

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender escaped from lawful custody – effect of escape on commencement and end date of offender’s sentence – proper construction of s 30 of the Crimes (Sentence Administration) Act (2005) – s 30 is a self-executing provision – the applicant’s release date for the sentence imposed is extended by a period equal to that which he was unlawfully absent from custody – whether declaratory relief should issue – declaration issued.

The Supreme Court has issued a declaration that the sentence of an offender who absconded from custody is extended by the period he was unlawfully absent from custody. The offender escaped after he was sentenced for offences in the ACT. Subsequently, the offender was extradited to the ACT and returned to custody. The parties agreed the Court should issue a declaration that the offender’s sentence is extended by the period he was absent from custody.

DPP v Timosevski [2024] ACTSC 205 (SCC 238 of 2023, SCC 239 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – act of indecency with a person under 16 years – sexual intercourse with a person under 16 years – offender’s remorse – where good prospects of offender rehabilitation – degree of concurrency applied – 20 percent discount for guilty plea – prison sentence imposed

The Supreme Court has sentenced an offender to overall sentence of imprisonment of 2 years, 8 months, and 24 days, commencing on 21 November 2023 and expiring on 13 August 2026, for one offence of an act of indecency with a person under 16 years and three offences of sexual intercourse with a person under 16 years. In sentencing the offender, the Court considered his remorse and prospects for rehabilitation. The Court set a non-parole period of 19 months and 14 days.

Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22

APPEAL – HUMAN RIGHTS – prison discipline procedures – right to humane treatment while deprived of liberty – right to protection from cruel, inhuman or degrading treatment and punishment – where disciplinary charge form not signed by detainee – where corrections officer proceeded as if charge was admitted in contravention of Corrections Management Act 2007 (ACT) – whether form was unclear – whether promulgation of form breaches human rights – whether consequential imposition of punishment was in breach of human rights – appeal dismissed

The Court of Appeal has upheld a decision of the Supreme Court, which determined that disciplinary action imposed on the appellant while he was incarcerated did not breach the Human Rights Act. The Appellant argued his refusal to sign the Discipline Form, and the fact it did not clearly indicate an option to appeal, meant the disciplinary action imposed was inhumane. The Appeal Court determined that the form was poorly formatted, however it did not breach the appellant’s human rights.

Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232

PRACTICE AND PROCEDURE – PLEADINGS – Plaintiff is self represented litigant – case with long procedural history – no defence yet filed – whether proposed amendments to proceedings should be allowed – no issue of principle

The Supreme Court has ruled on an application in proceeding regarding amendments to be made to a statement of claim. The plaintiff, now a self‑represented litigant, was seeking to add an additional 92 pages worth of material to the statement of claim which was previously filed by his former lawyers. The matter has been on foot since 2019 but has not progressed beyond the originating process stage. The court undertook a paragraph-by-paragraph assessment of the plaintiff’s proposed amendments, allowing some while disallowing others.

DPP v Hudson [2024] ACTSC 159 (SCC 12 of 2024, SCC 13 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – contravention of family violence order – theft – common assault – use carriage service to menace/ harass – references to Bugmy Bar Book – rehabilitation – Drug and Alcohol Treatment Order imposed.

The Supreme Court sentenced an offender for contravening a family violence order, common assault, theft, possession of a knife and ammunition, and using carriage service to menace/ harass. The offender committed the offences of contravening a family violence order, theft, common assault and possession of a knife and ammunition in 2022 by first taking the victim’s mobile without consent, and then attempting to use the mobile’s facial recognition feature to open the phone. During subsequent interactions where the victim attempted to retrieve her phone, the offender elbowed the victim in the chest. The police located the victim’s mobile, a number of ammunition rounds and a knife when searching the offender and his property. The offender then committed the offence of using carriage service to menace/ harass on another victim by sending text messages of degrading and threatening nature, causing the victim to fear for her safety and the safety of her family.

The Court considered the lengthy criminal history of the offender and his efforts towards rehabilitation, as well as the application of Bugmy principles in relation to the offender’s childhood disadvantage. The Court further considered the offender’s dependency on and abuse of prescription medication during the course of his offending, and the contribution of his dependency to the offences to be sentenced. The Court imposed a total of 1 year 5 months 5 days imprisonment, with the offence of using carriage service to menace/harass served by the time of imposition. The Court then ordered that a Drug and Alcohol Treatment Order to be imposed for the remainder of the offender’s sentence of 1 year 2 months, with specific conditions related to addressing the offender’s family violence behaviour set out in the conditions of the Treatment Order.

Ryan v Cheqrouni (No 2) [2024] ACTSC 230

CONTRACTS – DAMAGES – Implied terms – term of standard of work – claim for rectification and destroyed goods – claim for personal injury (mental distress) arising from breach of contract – whether damages for distress recoverable – assessment of losses caused by breach of contract – replacement value based on new or used value – pragmatic approach to assessment

(1) Judgment for the plaintiffs against the defendant in the sum of $237,876.09.

(2)  The defendant is to pay the disbursements incurred by the plaintiffs in bringing and pursuing the proceedings.

In the matter of an application by Leanne Cover [2024] ACTSC 197

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – application for urgent interlocutory injunction to restrain publication of a special report prepared by the Integrity Commission – where Commission required by statute upon completion of a special report to give it to the Speaker of the Legislative Assembly – where statute specifies requirement to afford procedural fairness in respect of a special report before it is given to the Speaker – whether statute codifies the Commission’s obligation to afford procedural fairness – whether plaintiff has established a serious question to be tried as to alleged denial of procedural fairness – consideration of balance of convenience in the case of an application to restrain the performance of a statutory duty

The plaintiff’s application for the interlocutory relief sought in paragraph 7 of the application in proceeding dated 18 June 2024 is dismissed.

DPP v Mack [2024] ACTSC 227 (SCC 58 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Threat to distribute intimate image – Where the offender was reckless as to whether the victim was consenting – Weight to be given to sentencing purposes

Offender sentenced to a term of imprisonment of 3 years (NPP 2 years) for two counts of sexual intercourse without consent and one count of threatening to distribute intimate images.

DPP v Wyatt [2024] ACTSC 142 (SCC 23 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – nature of the offence and aggravating factors – subjective circumstances – Bugmy principles – rehabilitation efforts while in custody – mental health – Verdins principle – available community supports – Drug and Alcohol Treatment Order imposed

The Supreme Court sentenced an offender for aggravated robbery committed in an Australian Post store in 2023. The Court considered the nature of the offence and the aggravating factors including possession of a knife during offending, as well as the subjective circumstances and insight expressed by the offender on sentencing. The Court further noted the considerations in Verdins in relation to the mental health of the offender and the now available community supports for the offender’s rehabilitation. The Court sentenced the offender to 2 years imprisonment back dated to his arrest and suspended the remainder of the sentence imposed to be served through a Drug and Alcohol Treatment Order. The Court further recommended the offender to be referred to restorative justice at a time considered appropriate by the director-general (corrections) during the term of the offender’s Drug and Alcohol Treatment Order.

Rutzou v Campbell [2024] ACTSC 217

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by the Magistrates Court – alleged manifest excess and specific error – condition imposed in good behaviour order prohibiting the appellant from driving except for limited purposes – prosecutor conceded the condition was an order made contrary to law – scope of s 13(4)(g) Crimes (Sentencing) Act 2005 (ACT) considered – concession not accepted - condition made by the Magistrate not contrary to law or manifestly excessive – appeal dismissed.

The Supreme Court has dismissed an appeal by an offender against a two-year good behaviour order (GBO), without conviction, that was imposed by the Magistrates Court for a charge of driving with a prescribed concentration of alcohol in breath. The GBO included a condition prohibiting the offender from driving except for limited purposes. The Court held that a condition prohibiting an offender from driving other than for limited purposes may be validly imposed on a good behaviour order. The Court also held that the sentence imposed was not manifestly excessive.

Elliot v Elly Property Wright Residential Pty Ltd [2024] ACTSC 192

REAL PROPERTY – CAVEATS – Application to extend caveat – multi-unit residential development – caveat lodged by purchaser of unit intended to be created following unit titling – caveat lodged prior to registration of units plan – “no caveat” clause in contract – whether caveat should be extended – equitable interest established in land – existence of equitable interest not dependent upon threat of breach of contract – registered proprietor indicates intention to comply with sale contract – evidence indicates some uncertainty as to conduct and management of the registered proprietor –  purchaser willing to cooperate to allow refinancing and unit titling to proceed – caveat extended

The Supreme Court has extended a caveat lodged by the purchaser of a unit in a development located in Wright. The court found that the purchaser has established an equitable interest in the land, and that the interest was not dependent upon any threat of breach of contract. The contract for sale of the unit contained a no caveat clause. The court determined that the existence of a no caveat clause did not preclude the extension of the caveat. In circumstances where the purchaser indicated a willingness to cooperate to allow refinancing and unit titling to proceed, the balance of convenience favoured the extension of the caveat.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194

PRACTICE AND PROCEDURE – APPEARANCE – Claim against Commissioner of Taxation – director refused leave to represent corporate plaintiff – plaintiff not appearing by solicitor at final hearing – proceedings dismissed pursuant to r 1505 of the Court Procedures Rules 2006 (ACT)

JURISDICTION, PRACTICE AND PROCEDURE – JURISDICTION – Claim against Commissioner of Taxation for orders against an officer of the Commonwealth – submission by defendant that court lacked jurisdiction to determine application – submissions inadequate – plaintiff not appearing – not essential to determine jurisdiction in circumstances where proceedings would be dismissed in any event

The Supreme Court has dismissed proceedings brought against the Commissioner of Taxation by a corporate entity, Bennelong Medical Pty Ltd. The plaintiff company had remained unrepresented throughout the course of the proceedings, which were commenced in January 2023, after the director was refused leave to represent the company. Despite a substantial interlocutory history in which the director was repeatedly refused leave to act for the company instead of engaging a solicitor, the plaintiff company remained unrepresented at the final hearing. The plaintiff was deemed to have not appeared at the final hearing, and the claim was dismissed.

DPP v O’Keefe [2024] ACTSC 210 (SCC 309 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two counts of trafficking in a commercial quantity of a commercial drug – cocaine and methylamphetamine – offender played an important but not essential role in the organised crime operation – the trafficked amount was not significantly above the prescribed commercial quantity – offending financially motivated due to a drug debt incurred by the offender during a period of significant addiction to cocaine – where offender has made significant progress and demonstrates excellent prospects of rehabilitation – displayed genuine remorse

The Supreme Court has sentenced an offender to 3 years and 3 months for trafficking in a commercial quantity of cocaine and 4 years and 2 months for trafficking in a commercial quantity of methylamphetamine. The offender had remained abstinent from drug use since being charged, had excellent prospects of rehabilitation and had displayed genuine remorse.

Wu v Wu [2024] ACTCA 8

APPEAL – EQUITY – Undue influence – unconscionable conduct – laches – gift of family home to daughter – whether error in assessment of relationship of ascendancy – whether error in analysis of special disadvantage – whether error in principles concerning delay in seeking relief

The Court of Appeal has found error in respect of a judgment at first instance dismissing claims in equity alleging undue influence and unconscionable conduct. The appeal involved the transfer of the appellant’s family home to one of his daughters, in circumstances that the appellant alleged were unconscionable or involved undue influence.

The circumstances alleged included that the house was the appellant’s only significant asset, that he was elderly, did not understand English, did not have independent legal advice, and depended upon his wife for managing his assets and finances on his behalf. Further, the respondent daughter knew or ought to have known of those circumstances at the time she received the benefit.

Relevant to the appeal, the primary judge rejected each of the claims in equity and further held that the defence of laches would have applied.

The Court of Appeal found:

(a)          That in the case of undue influence, a presumption of undue influence was alleged arising from an antecedent relationship of dependency of the appellant on his wife in respect of all financial matters. The primary judge had assessed the wrong relationship of ascendancy, because the relationship analysed was that of the daughter over the father.

(b)          In her findings concerning unconscionable conduct, the primary judge had erred in the consideration of whether the appellant suffered a special disadvantage.

(c)           In respect of whether the equitable defence of laches applied, error in the application of the principle concerning delay was established.

Further orders were required to determine whether the matter should be remitted or determined by the Court of Appeal.

Fuller v Australian Capital Territory [2024] ACTCA 19

APPEAL – NEGLIGENCE – Medical Negligence – Appeal from the Supreme Court – anaesthetist – where a spinal needle used to administer spinal anaesthetic in a planned caesarean section broke – whether the primary judge erred in relying on a witness’ evidence to make certain factual findings – whether the spinal needle should have been replaced before further attempts – whether the primary judge erroneously applied s 5O of the Civil Liability Act 2002 (NSW) – whether the failed administration of the anaesthetic caused the appellant’s injuries – assessment of the primary judge’s factual findings – consideration of the primary judge’s use of the expert evidence – appeal allowed – matter remitted to the Supreme Court for assessment of damages

The Court of Appeal has allowed an appeal against a Supreme Court decision concerning a claim for negligence arising out of an unsuccessful administration of spinal anaesthetic. The primary judge’s reasoning in support of the factual findings did not demonstrate error, but this did not negate the success of the appeal. Failure to use a fresh spinal needle following an initial unsuccessful attempt to administer anaesthetic breached the standard of care owed to the appellant. The failed anaesthetic caused the appellant’s radiculopathy. The proceedings were remitted to the Supreme Court for damages to be assessed on that basis.

DPP v Cichacz [2024] ACTSC 209 (SCC 315 of 2023; SCC 316 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possessing a declared substance – possess/sale/supply a drug of dependence – breach of suspended sentences and good behaviour orders – illicit substance abuse – difficulty attending supervision appointments due to vision impairment – PTSD from prior relationships of domestic violence – Verdins considerations  – prospects of rehabilitation – no action taken on breach of good behaviour orders – sentences of imprisonment suspended upon entry into good behaviour orders.

Offender sentenced for possess/sale/supply of a drug of dependence and possession of a declared substance – resentence for earlier breach of suspended sentences – offender had difficulty attending supervision appointments due to vision impairment – PTSD arising from prior relationships of domestic violence – sentences of imprisonment suspended upon entry into good behaviour orders.

Decision Restricted [2024] ACTSC 213

EVIDENCE LAW – TENDENCY EVIDENCE – Criminal proceedings – alleged tendency of accused to have a sexual interest in the complainant (a child) and to act upon that interest – single complainant – where prosecution relied on “otherwise benign” acts to support charge of grooming – whether benign acts capable of proving tendency to have sexual interest in the complainant – consideration of nature of tendency reasoning – consideration of appropriate form of rulings to be sought in tendency applications

In the estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211

CIVIL LAW – application for a video made by the deceased to constitute a valid last will – s 11A of the Wills Act 1968 (ACT) – application for a grant of letters of administration to be issued to the applicant as administrator – s 9 of the Administration and Probate Act 1929 (ACT) – application consented to by each of the possible beneficiaries of the Estate - a grant of letters of administration is to be issued to the applicant as administrator.

The Supreme Court has granted an application under s 11A of the Wills Act 1968 (ACT) that a video made by the deceased constitute a valid last will. The video was made by the deceased shortly prior to undergoing surgery in Peru from which she never recovered.

South Canberra Holdings Pty Ltd v Saunders [2024] ACTSC 212

APPEAL – parties filed consent orders that leave to appeal against the ACAT decision be granted and that the ACAT decision be set aside – substantive dispute settled – proceedings moot – leave to appeal refused.

R v Celeski (No 3); DPP v Celeski [2024] ACTSC 144 (SCC 78, 79, 80, 81, 174, 175 of 2022; SCC 81, 82 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – reoffending – treatment and supervision continued while on bail – bail revoked after discharge from residential facility – s 80ZD imposition or resentence – 80ZH review – s 36 assistance to law enforcement authorities – sentence of imprisonment under the custodial part imposed – rehabilitation through a parole order

The Supreme Court has sentenced an offender for various property, firearms, and drug related offences following the cancellation of the offender’s Drug and Alcohol Treatment Order in January 2024. In light of the seriousness of the offending and high degree of non-compliance, the Court considered it appropriate to impose the sentence that was previously suspended in addition to the sentence for fresh offending.

In considering the objective seriousness of the offending, the Court noted that the offending demonstrated an ongoing engagement in the drug trade in association with firearms and weapons offences. The Court considered that the offender’s severe substance dependency corresponded with the nature and seriousness of the offending. The Court further considered assistance provided by the offender to authorities. Ultimately, the Court was of the view that the offender was of prospects for rehabilitation through parole and a sentence was imposed of 5 years and 6 months imprisonment, with a nonparole period of 2 years and 9 months.

In the Estate of Mary Ellen Robbie [2024] ACTSC 208

WILLS, PROBATE & ADMINISTRATION – INFORMALITY – Wills Act 1968 (ACT) s 11A – Purported will – standard form will – anomalies in entries to the will – reasonable explanation for anomalies – accords with deceased’s testamentary intentions.

DPP v Stewart (No 2) [2024] ACTSC 163 (SCC 28 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – forgery – Drug and Alcohol Treatment Order cancelled – discharge from residential rehabilitation facility – s 80ZE imposition or resentence – extent of non-compliance – imposition of balance of the term of imprisonment – rehabilitation through parole

The Supreme Court has sentenced an offender for forgery offences following the cancellation of the offender’s Drug and Alcohol Treatment Order. The offender was found to have demonstrated limited compliance during the limited time while the offender was on the treatment and supervision part of the Treatment Order. However, the offender participated in rehabilitation programs while in custody and the Court imposed the balance of the custodial part of the Treatment Order, with the term of imprisonment ending on 21 October 2025. The Court further considered the rehabilitative efforts of the offender and risk to the community based on the offender’s criminal history and the nature of the offending, and imposed a nonparole period ending on 21 July 2024. The Court made recommendations for the offender to undertake a substantial period of supervised or mandated drug rehabilitation program if available to him on parole.

Heaven Builders Pty Ltd & Ors v Moustafa & Anor [2024] ACTSC 201

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ex Parte Application – Freezing order – whether evidence establishes a good, arguable case – whether there is a real risk of defendants dissipating assets – whether the balance of convenience favours making the orders – whether balance of convenience favours granting the freezing order

The Supreme Court has granted a freezing order directing the defendant to pay the proceeds of the sale of a property to the Court. The plaintiffs had previously been granted a caveat by the Court over the property, however ACT Land Title records showed that the sale of the property has since settled. The plaintiffs and defendants are engaged in ongoing proceedings before the Magistrates Court.

DPP v Singh [2024] ACTSC 202 (SCC 17 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – delivery driver involved in scheme to receive fraudulent consignments of mobile phones – no criminal antecedents – where childhood disadvantage present – where time in custody already served – rehabilitation prioritised – intensive correction order with community service condition imposed

The Supreme Court has sentenced an offender to a term of imprisonment of almost 2 years in relation to four counts of obtaining property by deception.

The offender was a contracted delivery driver for Australia Post as part of its Star Track network.  The scheme involved addresses of customers being manipulated online and then iPhones being ordered, to be sent to the false address.  The offender’s role in the scheme involved purporting to deliver the iPhones but withholding them from delivery and instead providing them to an unidentified person who would then pay him cash.  The value of the iPhones diverted from delivery was $136,933.00. The offender received a few thousand dollars for his role in the scheme.

The offender had made full admissions following his arrest, pleaded guilty to all four charges, and assisted police with their further investigations.  He had previously been held in custody for 7 days and had experienced social disadvantage, each of which was taken into account in ordering the sentence to be served by way of an intensive correction order with a condition attached of 100 hrs of community service.

DPP v Smith (No 3) [2024] ACTSC 146 (SCC 182 of 2024; SCC 183 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order cancelled – review under s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) – unsatisfactory circumstances – imposition or resentence under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) – where compliance with the Drug and Alcohol Treatment Order was limited – Bugmy considerations – Verdins principles – resentence – rehabilitation through parole order

The Supreme Court has sentenced an offender for aggravated robbery, theft, aggravated assault occasioning actual bodily harm, and aggravated property damage following the cancellation of the offender’s Drug and Alcohol Treatment Order in 2023. In light of the offender struggling with complex mental health conditions at the time of the non-compliance, the Court considered it appropriate to resentence the offender.

In considering the objective seriousness of the offending, the Court noted that the theft occurred in the victim’s home and significant items of property were taken, and the assault occurred in the victim’s home and would have been particularly frightening. The Court considered that the offender’s moral culpability was reduced as a result of his childhood of extreme disadvantage, the early age at which he was introduced to drugs, and the links between his traumatic childhood experiences, addiction and mental health conditions. Ultimately, the Court was of the view that the offender had hope for rehabilitation. Taking into account the 8 months that the offender had already served in custody in relation to the offences, the Court resentenced the offender to 23 months imprisonment, with the non-parole period being 40 per cent of the total sentence.

In the matter of an application [2024] ACTSC 197

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – application for urgent interlocutory injunction to restrain publication of a special report prepared by the Integrity Commission – where Commission required by statute upon completion of a special report to give it to the Speaker of the Legislative Assembly – where statute specifies requirement to afford procedural fairness in respect of a special report before it is given to the Speaker – whether statute codifies the Commission’s obligation to afford procedural fairness – whether plaintiff has established a serious question to be tried as to alleged denial of procedural fairness – consideration of balance of convenience in the case of an application to restrain the performance of a statutory duty

The Supreme Court has refused an interlocutory application that sought to restrain publication of a special report prepared by the ACT Integrity Commission. The plaintiff alleged the report entailed a denial of procedural fairness and contained errors of law.

The Court found that the plaintiff had not shown a sufficient likelihood of success to warrant granting the relief sought. The Court also found that, although publication of the report would likely damage the plaintiff’s reputation, it was not shown that the balance of convenience favoured preserving the status quo, noting the Commissioner has a statutory obligation upon completion of a special report to give it to the Speaker of the Legislative Assembly.  Accordingly, the application was dismissed.

Devenport v Garnon [2024] ACTSC 198

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether finding of guilt was unreasonable or could not have been supported having regard to the evidence – whether the Magistrate’s reasons were insufficient – whether the Liberato direction was misapplied – each ground not established – appeal dismissed – conviction confirmed

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27 June 2024

DPP v D’Elboux [2024] ACTSC 122

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Drug and Alcohol Treatment Order – where the offender assessed as not eligible to progress to a drug and alcohol treatment assessment – s 80U – declines to make – s 80U remittal

Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16

CIVIL LAW – NEGLIGENCE – Personal injury – workers compensation – slip and fall at construction site – whether safe system of work provided and ensured – whether pre-existing undiagnosed spinal condition – whether breach of statutory duty – whether contributory negligence – damages awarded

The Supreme Court has found a subcontractor and an employer liable in negligence for injury suffered by a form worker on a building site.  The employee worker had slipped on a frosty deck on the site while carrying a plywood sheet.  The Court found that the employer owed a non-delegable duty of care, and that the subcontractor exercised sufficient control over the employer of the worker to give rise to a duty of care. The Court further found that such duties were breached by a failure to ensure that the surface where it directed the plaintiff to work was not slippery.  The worker was found to have a pre-existing asymptomatic degenerative spinal condition, rendered symptomatic as a result of the injury. The worker was no longer able to work in the construction industry and, as a recent migrant into Australia, had difficulty seeking alternative employment due to his lack of English proficiency.

Judgment was entered for the plaintiff against the first and second defendants in the sum of $243,900 plus costs.  The third defendant as default insurer was ordered to pay its own costs.

Breust v Anderson [2024] ACTSC 182

REAL PROPERTY – PARTITION – Sale in lieu of partition – property jointly owned by plaintiff and defendant from previous relationship – failure by defendant to remove plaintiff as joint owner – joint owner incurring rates and water charge liabilities – plaintiff unaware she was still a registered proprietor until receiving notice of legal proceedings brought by Icon Water – significant debts to Icon Water and ACT Revenue Office attached to property – failure by defendant to address issue – no appearance by defendant at any stage of proceedings – order for sale of property – appointment of independent trustee to undertake sale

The Supreme Court has ordered the appointment of an independent trustee to undertake the sale of a property in Holt. The plaintiff and defendant bought the house together in 1997 when they were in a de facto relationship. When the relationship ended in 1998, no steps were taken to formally remove the plaintiff from the title of the property. In the years since, the defendant allowed significant debts attached to the property to accrue.

The plaintiff became aware that she was still on the title to the property when she received a notice of legal proceedings for the debt. The plaintiff tried to contact the defendant to resolve the matter, but without any response. The plaintiff then brought proceedings to appoint a trustee to sell the property to repay the debts. Despite numerous attempts to engage the defendant in the proceedings, there was no appearance by the defendant at any stage.

The court has ordered the appointment of a third party as an independent trustee, which will not come into effect until early July with the intention to give the defendant a final opportunity to take urgent action to avoid the order for sale.

Cripps v Cripps [2024] ACTSC 180

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application to summarily dismiss or permanently stay proceedings – contention that proceedings are vexatious or an abuse of process because legal fees will reduce residue of estate to point where plaintiff cannot do better than current entitlement – no express provision providing for limitation on costs recoverable – inevitability of plaintiff being unable to achieve better outcome than available under the will has not been established – application dismissed

The Supreme Court has dismissed the application of a defendant in family provision proceedings.

The defendant sought to have the plaintiff’s claim summarily dismissed on the grounds that it had no real prospects of success because the legal costs of defending the plaintiff’s claim, along with the plaintiff’s costs if his claim was successful, would reduce the amount of the estate available to the plaintiff so that he had very little chance of obtaining any more than what had already been left to him in the will.

In reaching its decision, the court considered that the inevitability that the plaintiff would not be able to achieve a better outcome than what was already available under the will had not been made out, especially if the parties are able to reach a settlement instead of proceeding to trial. The court also acknowledged the inability of the court to place a limitation on the costs recoverable in such proceedings and the “distorted incentive” that this created for plaintiffs.

Decision Restricted - [2024] ACTSC 196

Application to adduce prior evidence of family violence in respect of family violence and sexual violence offending – s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – consideration of relationship and context evidence – application granted.

DPP v Muell [2024] ACTSC 184 (SCC 296 of 2023; SCC 297 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – driving with a suspended license – where the offender had a particularly disadvantaged and traumatic upbringing – where the offender was on parole for other matters at time of offending – appropriate length of non-parole period in light of offender’s prospects of rehabilitation  – offender’s prospects of rehabilitation remain guarded – Bugmy, Verdins and Henry principles engaged – institutionalisation relevant – sentenced to term of imprisonment for aggravated robbery – non-parole period reset – fine with no time to pay imposed for driving with a suspended licence – automatic disqualification applies

The Supreme Court has sentenced an offender for aggravated robbery and a driving offence.

The offender had a difficult upbringing and was on parole at the time of the offending. The Court considered the offender’s prospects of rehabilitation to be guarded.

A sentence of 3 years and 6 months’ imprisonment was imposed for the aggravated robbery. A new non-parole period was set. The court imposed a fine for driving with a suspended license, with the offender automatically disqualified from holding or obtaining a driver’s licence.

Re referral under r 6142 (No 3) [2024] ACTSC 189

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – document appears to be application for review pursuant to s 67A(11) Supreme Court Act 1933 (ACT) – no leave of court required – where orders sought contain drafting defects – appropriate that document be filed and application listed before a judge – Registrar directed to accept document

The Supreme Court has directed the Registrar to accept a document lodged with the registry. The document appeared to be an application for review of a declaration that a person was a vexatious litigant. No leave of the court is required for such an application. The court determined that, notwithstanding drafting defects in the orders sought, it was appropriate that the document be filed and the application listed before a judge.

R v Guy (No 3) [2024] ACTSC 118 (SCC 273 of 2021; SCC 274 of 2021; SCC 301 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Good Behaviour Order after cancellation of Drug and Alcohol Treatment Order – breach of Good Behaviour Order – s 110 cancellation – imposition or resentence – aggravated dangerous driving – possession of a firearm – possession of stolen property – possession of drug of dependence – driving while disqualified – fines imposed – term of imprisonment suspended – Good Behaviour Order imposed

Richardson v Richardson (No 2) [2024] ACTSC 191

SUCCESSION – FAMILY PROVISION – Application by adult son for provision out of late mother’s estate – where long period of estrangement between plaintiff and deceased – consideration of the deceased’s testamentary freedom and reasons for bequeathing only small gift to plaintiff – consideration of testator’s moral duty – modest estate – where plaintiff in poor financial position and of poor health – held that community standards require further provision be made for plaintiff – order that provision be made out of property already distributed – order that plaintiff’s legal costs be capped

EVIDENCE – WITNESSES – Credibility and reliability – where very little contemporaneous material, objective facts, or wholly independent witnesses available – where corroborative witness shown affidavit of the person whose evidence they were intended to corroborate – infection of testimony by suggestion –utility of affidavit evidence compromised

The Supreme Court has ordered that further provision be made for an adult son out of his late mother’s estate. In deciding the application, the Court took into account the long period of estrangement between the applicant and his mother and her reasons for only leaving a small gift to him in her will. The Court was required to consider the testator’s moral duty to the plaintiff and the plaintiff’s poor financial situation and limited means of earning an income because of his declining health. Noting that estrangement does not disentitle a plaintiff from a successful claim, and in light of the applicant’s impecuniosity and physical limitations, the Court was satisfied that adequate provision for the proper maintenance, education or advancement in life of the plaintiff was not available under his late mother’s will. The Court ordered that the provision be made out of property already distributed to the testator’s grandson, who the Court inferred needed no provision from the estate and was significantly better off than the plaintiff.

The Court also expressed significant concern about costs incurred in family provision litigation, particularly in relation to small estates, and considered that the overall justice of the case required the plaintiff’s legal costs to be capped.

DPP v Basic [2024] ACTSC 186

EVIDENCE – ADMISSIBILITY AND RELEVANCY – Voir dire – objection to admission of police body worn camera footage – submission that non compliance with s 81A of Evidence (Miscellaneous Provisions) Act 1991 (ACT) should lead to exclusion under s 81B – s 81B does not provide for exclusion when recording not used as evidence in chief and otherwise admissible

EVIDENCE – ADMISSIBILITY AND RELEVANCY – Voir dire – objection to admission of police body worn camera footage – submission that footage not admissible under s 138 of Evidence Act 2011 (ACT) because of non-compliance with s 43B of Crimes (Surveillance Devices) Act 2010 (ACT) – examples to s 43B provide that use is overt if camera worn in a way that makes it visible to person being recorded – guidelines made under s 43C add further requirement that use be announced – evidence admitted notwithstanding contravention

STATUTES – INTERPRETATION – Examples in Act – where s 132 of Legislation Act 2001 (ACT) permits examples to extend meaning of Act – Example 1 in s 43B(4)(a) of Crimes (Surveillance Devices) Act 2010 (ACT) means that use of body worn camera will be overt if camera worn in a way that is visible to person being recorded –– body worn camera footage admissible

The Supreme Court has ruled to allow the admission of body‑worn camera footage in a criminal case involving family violence.

The footage captured the first interaction that police had with the complainant following the incident and was highly relevant to the case. The officer making the recording failed to announce that the body‑worn camera was recording, as required under the relevant guidelines. In ruling to admit the footage, the court found that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had not been obtained in accordance with the relevant provisions.

Legal practitioner v Law Society of the ACT [2024] ACTCA 17

Judgments summary

PROFESSIONS AND TRADES – LAWYERS – Complaints about a legal practitioner – referral of a special case to Supreme Court by the ACT Civil and Administrative Tribunal – appropriateness of referral - whether primary judge erred in answers to special case – where first complaint about legal practitioner’s conduct summarily dismissed – whether Law Society must dismiss any subsequent complaint about the same conduct – consideration of summary dismissal power in s 399 and legislative scheme in Ch 4 of the Legal Profession Act 2006 (ACT) – s 399 is a discretionary power to dismiss complaints – mandatory dismissal of subsequent complaints inconsistent with purpose of the legislative scheme – no error demonstrated – appeal dismissed

The Court of Appeal has dismissed an appeal from a decision of a single judge. The appeal arose out of a series of complaints about a legal practitioner. The Law Society filed an application for disciplinary action against the appellant in the ACT Civil and Administrative Tribunal in relation to one of the complaints. The ACAT referred a special case to the Supreme Court. The special case posed the questions of whether the Law Society had the power to refer a complaint to the ACAT where it had previously dismissed a complaint concerning the same conduct and whether the ACAT had jurisdiction to hear and determine the applications referred to it by the Law Society. The primary judge found that the answer to both of these questions was “Yes”.

An initial complaint about the legal practitioner’s conduct had been summarily dismissed by the Law Society. The Court of Appeal considered whether s 399 of the Legal Profession Act 2006 (ACT) had the effect that the Law Society must dismiss any subsequent complaint that is about the same conduct. Upon consideration of the summary dismissal power in s 399 and the legislative scheme underpinning that power in Ch 4 of the Act, the court determined that s 399 confers a discretionary power to dismiss subsequent complaints about the same conduct. Requiring mandatory dismissal of subsequent complaints about the same conduct is inconsistent with the purpose of the legislative scheme. As the appellant had failed to demonstrate error in the decision of the primary judge, the appeal was dismissed.

Harlovich v Sebbens [2024] ACTSC 153

Appeal from the Magistrates Court against sentence – drive while disqualified – residual discretion - matter heard subsequent to referral to full court – Galambany Circle Sentencing Court – whether the sentence was manifestly inadequate

The Supreme Court has dismissed a prosecution appeal against a sentence imposed in relation to a drive while disqualified offence, imposed in the Magistrates Court before the Galambany Circle Sentencing Court. The sole ground of appeal was manifest inadequacy.

Loukas-Karlsson J found that the sentence imposed was not manifestly inadequate on the facts of the case. Her Honour further found that, even if her Honour had determined the sentence was manifestly inadequate, this was a case where the onus on the prosecution had not been discharged in relation to the residual discretion.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4) [2024] ACTSC 190

PRACTICE AND PROCEDURE – Leave to represent a corporation to start and carry out proceeding – rule 30(4)(b) of the Court Procedure Rules 2006 (ACT) – self-represented litigant – sole director, secretary, and shareholder – previous application for leave refused – appeal to Supreme Court dismissed – appeal in Court of Appeal struck out – whether current application is an abuse of process – whether current application is precluded by Anshun estoppel – current application drafted in same terms as previous application – no material change in evidence – abuse of process found – application dismissed with costs

The Supreme Court has just dismissed an application from a self-represented litigant for leave to represent a corporation in starting and carrying on proceedings. The applicant had previously made an application for leave, and there has not been a material change in evidence since the previous application.

The application was dismissed as an abuse of process, with the applicant ordered to pay the defendant’s costs.

TN v Rossiter [2023] ACTSC 376

TRUSTS AND TRUSTEES – COMPENSATION TO RELATIVES CLAIM – Application for approval of a compromise of proceedings – where the beneficiaries are under a legal incapacity being children – application approved where the compromise is beneficial to the persons under the legal incapacity.

Ezekiel-Hart v Council for the Law Society of the ACT [2024] ACTCA 2

CIVIL LAW – VEXATIOUS LITIGANT – where vexatious litigant filed a notice of appeal without seeking leave to appeal – consideration of the requirement for leave to appeal – where appellant did not intend to appeal but instead to invoke the power of the trial court to vary or revoke the vexatious litigant declaration – whether appropriate to permit the notice of appeal to be amended and referred to the Supreme Court

R v Aguer (No 2) [2024] ACTSC 169

EVIDENCE – ADMISSIBILITY AND RELEVANCY – Hearsay – Crown application for ruling that hearsay rule does not apply –  written witness statements made in 2018 – witnesses either no longer able to be contacted or reluctant to give evidence at trial – whether witnesses are not available to give evidence for the purposes of s 65 of the Evidence Act 2011 (ACT) – Crown had not satisfied the requirement of “all reasonable steps” to find the witnesses or secure their attendance – hearsay rule applies to exclude witness statements

The Supreme Court has rejected a Crown prosecution application to adduce evidence in the form of prior written witness statements in circumstances where the Crown said those witnesses were not available to give evidence. The prior statements were made in 2018 but the witnesses had since relocated, and the Crown was subsequently unable to find the witnesses to serve them with the subpoenas to give evidence.

In reaching its decision, the court considered that the Crown had not taken “all reasonable steps” to locate the witnesses, and so could not rely on the exception to the hearsay rule to adduce the evidence.

Prime Capital Securities Pty Ltd v Fitch [2024] ACTSC 47

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for the extension of a caveat – where application brought late and ex parte – where debt claimed by the lender not proved by sworn evidence – absence of any explanation for the lateness of the application – discussion of the court’s expectations where such an application is brought late and ex parte

DPP v Monaghan [2024] ACTSC 183 (SCC 76 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – plea of guilty – not an objectively serious offence – disadvantaged and traumatic childhood – genuine remorse – good prospects of rehabilitation – considerations of parity – extensive criminal history – four year period without offending – backdated to account for time served in custody

The Supreme Court has sentenced an offender to 2 months of imprisonment for a count of theft by joint commission. The offending was committed in 2017, and the offender entered pleas of guilty in 2019 but absconded before the sentence date. The offending was not objectively serious, the offender had a disadvantaged childhood, and she showed remorse for the offending and motivation for reform. She is engaged in a support program and demonstrated good prospects of rehabilitation. The sentence of imprisonment was backdated due to time already served in custody and the offender had no remaining balance to serve.

DPP v Smith [2023] ACTSC 367

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – sex offences – application for bail refused – criminal history for similar offending – serious mental health concerns – where the conditions proposed could not mitigate the risk of further offending

In the estate of Venu Krishnamurthy [2024] ACTSC 73

WILLS, PROBATE & ADMINISTRATION - RECTIFICATION – Where letters of administration were granted – where later the deceased’s brother found the original will – where grant of the letters of administration is revoked

Agarwal v Coutts [2023] ACTSC 377

CRIMINAL LAW – BAIL – Application for bail pending appeal from the Magistrates Court – where the appellant’s conduct warranted a period of full-time imprisonment and where that component of the sentence would not be served prior to the determination of any appeal – where Corrective Services can adequately manage the appellant’s health needs

Bail  refused

Talbott v ACT [2024] ACTSC 166

PRACTICE AND PROCEDURE – PLEADINGS – Claim for declaratory relief of alleged breach of human rights – claim arises out of search of plaintiff by corrections officers at the Alexander Maconochie Centre – proceedings likely to involve dispute about facts – appropriate for factual issues to be defined by way of pleadings – appropriate to make order for proceedings to continue as if commenced by Originating Claim

PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – Application for temporary stay – claim for declaratory relief of alleged breach of human rights – claim arises out of search of plaintiff by corrections officers at the Alexander Maconochie Centre – where employees of the defendant the subject of criminal investigation – conduct the subject of criminal investigation identical to subject matter of civil proceedings – corrections officers entitled to exercise their right to silence – where making statements in civil proceedings would be prejudicial to officers’ position in criminal proceedings – balance of justice lies in favour of stay – temporary stay granted

The Supreme Court has granted a temporary stay of proceedings brought against the Australian Capital Territory. The plaintiff claims that corrections officers breached his human rights during a search at the Alexander Maconochie Centre. The conduct of the corrections officers in performing the search is currently the subject of a criminal investigation. The court determined that, in circumstances where the subject of the proceedings was identical to the subject of the criminal investigation and where the corrections officers were entitled to exercise their right to silence, forcing the officers to make statements for the civil proceedings would be prejudicial to their position in any criminal proceedings brought against them. The court held that the balance of justice lies in favour of a temporary stay.

In the Estate of Wendy Poole (deceased) [2024] ACTSC 168

SUCCESSION – EXECUTORS AND ADMINISTRATION – Administration – applications in proceeding brought by beneficiaries seeking payments out of estate and documents concerning estate administration – where estate attempting to recover funds loaned to third party – application withdrawn upon indication that estate would not seek costs order – no appearance from applicant for outstanding application – applications dismissed

The Supreme Court has dismissed a series of applications in proceeding seeking payments out of an estate and documents concerning the administration of the estate. The estate is attempting to recover funds loaned to a third party to pay to the beneficiaries. In those circumstances, the applicant indicated that he wished to withdraw the applications.

R v Po’oi (No 5) [2023] ACTSC 413

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail – sentence delayed – past compliance issues with Drug and Alcohol Treatment Order – completed rehabilitation programs while in custody - opportunity for Participant to demonstrate transition into community – bail granted under strict conditions

DPP v Allred [2023] ACTSC 184 (SCC 314 of 2022; SCC 315 of 2022; SCC 48 of 2023; SCC 49 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving at police – dishonestly driving motor vehicle – driving while disqualified – aggravated dangerous driving – recklessness in driving at police – rehabilitation – periods of abstinence and non-offending – subjective circumstances – Suitability Assessments – Drug and Alcohol Treatment Order imposed

R v Aguer [2023] ACTSC 48

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Tendency and Coincidence evidence – application to adduce coincidence evidence granted – application to adduce tendency evidence to be considered by the trial judge

R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143 (SCC 189 of 2022; SCC 190 of 2022; SCC 224 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving motor vehicle at police – aggravated dangerous driving – dishonestly ride in a motor vehicle without consent – Drug and Alcohol Treatment Order cancelled – treatment and supervision part suspended after re-offending – s 80ZH review – s 80ZE imposition or resentence – rehabilitation progress – resentence – non-linear addiction recovery – combination of rehabilitation measures – suspended sentence and good behaviour order

The Supreme Court sentenced an offender whose Drug and Alcohol Treatment Order was cancelled for noncompliance following failure to report to his sentence review and re-offending while on the Treatment Order. The offender then engaged in extensive rehabilitation efforts while in custody and following release from custody on bail. The Court considered the offender’s subjective circumstances, the progress made in rehabilitation and ongoing stabilising prosocial factors in the offender’s family unit. The Court noted that addiction recovery is non-linear and there is value in the combination of rehabilitation interventions engaged first with the Treatment Order and measures following the cancellation of the Treatment Order. The Court resentenced the offender to 2 years and 8 months imprisonment for the offences committed to the Treatment Order, and sentenced the offender to an additional 6 months imprisonment for the new offence, with the sentences suspended and in exchange for the offender to enter into good behaviour orders, with the total sentence ending on 10 January 2026.

DPP v Welsh (No 3) [2024] ACTSC 179 (SCC 340 of 2022; SCC 341 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – burglary – taking and driving motor vehicles without consent – offence committed in breach of conditional liberty – Griffiths remand previously imposed – offender was admitted into a full-time residential rehabilitation program – offender has engaged in significant rehabilitation since breach – overall sentence of imprisonment of one year and six months – total sentence of imprisonment wholly suspended upon entering a good behaviour order.

The Supreme Court has sentenced an offender for aggravated burglary, burglary, and taking and driving motor vehicles without consent. The Court previously adjourned proceedings to enable the offender to be admitted into a full-time residential rehabilitation program. The offender made remarkable steps towards rehabilitation after completing the residential program, including finding employment, ceasing his drug use and proactively engaging with support services.  The Court imposed a sentence of 18 months imprisonment, to be wholly suspended upon the entering of a good behaviour order.

DPP v Howe [2024] ACTSC 178 (SCC 89 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated common assault – common assault – property damage – family violence offences – lack of genuine remorse – high degree of responsibility for the offending – good prospects of rehabilitation – low risk of re-offending – no criminal history – sentence of imprisonment immediately suspended upon entering a good behaviour order – community service work condition imposed

The Supreme Court has sentenced an offender to 7 months imprisonment suspended immediately upon entering into a good behaviour order (GBO), for one count of aggravated common assault, a GBO of 1 year for a common assault, a 6 month GBO for a common assault and an $1800 fine for one count of property damage. The offences involved family violence against the offender’s wife at the time. The victim was pregnant at the time and their oldest child witnessed the offending. The offender had a lack of genuine remorse but otherwise good prospects of rehabilitation and no criminal history.

DPP v Nurzynski [2024] ACTSC 176 (SCC 278 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manufacture and discharge firearm offences – breach of good behaviour order – early guilty plea and assistance given to police – where long standing drug and alcohol problem – where suitable for drug and alcohol treatment order – term of imprisonment ordered, suspended upon treatment order being made.

The Supreme Court has sentenced a 60-year-old offender to a term of imprisonment of 2 years, 3 months and 12 days in relation to offences of manufacturing a prohibited firearm and discharging a loaded firearm, as well as imposing a sentence previously suspended for breaches of a personal protection order.

The Court found that although the offences were serious, the instances of both offences fell within the lower end of conduct falling within each offence. The offender had mental health considerations and had suffered a long-standing drug and alcohol problem which had developed in his youth. As the offender had already served more than 9 months in custody, the Court ordered that the remainder of the sentence of imprisonment be served by way of a drug and alcohol treatment order followed by a short good behaviour order.

Re referral under r 6142 (No 2) [2024] ACTSC 167

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – party attempting to file document has been declared a vexatious litigant – no leave of the court to commence or continue proceedings – no power under r 6142 to direct that document be accepted in part – at least one of the orders sought is an abuse of process – Registrar directed to reject document

The Supreme Court has directed the Registrar to reject a document lodged with the registry. The party attempting to file the document had been declared a vexatious litigant and did not have the court’s leave to commence or continue proceedings. At least one of the orders sought is an abuse of process. In circumstances where the court does not have power to direct that the document be accepted in part, the court directed that the document be rejected.

DPP v Rowntree (a pseudonym) [2024] ACTSC 155 (SCC 3 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – murder – case of mistaken identity – offender intended to commit home invasion but went to the wrong unit – offender only 17 and a half years old at the time of the offence – consideration of offender’s personality structure, antisocial attitudes, underlying mental health conditions and adverse consequences of being detained – offender sentenced to 13 years’ imprisonment to be suspended after seven years and nine months.

The Supreme Court has published the reasons for sentence of the offender charged with the murder of a man in a case of mistaken identity. The offender was intending to commit a home invasion but went to the wrong unit by mistake and killed the occupant without knowing who he was. The offender, who was 17 at the time of the murder, pleaded guilty and was sentenced to 13 years’ imprisonment to be suspended after seven years and nine months. In imposing the sentence, the court took into account the offender’s age, mental health conditions, background and upbringing, and prospects for rehabilitation.

Roberts v Wright [2024] ACTSC 154

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Appeal from ACT Magistrates Court – attempt to escape Alexander Maconochie Centre by rappelling out of cell window using bed sheets tied together – aggregate sentence of 12 months for failure to answer bail, attempt to escape from lawful custody, obstructing a Territory public official (minor offence), obstructing a Territory public official and unlawful possession of stolen property – grounds of appeal asserted that sentences imposed were manifestly excessive – other grounds raised in submissions asserting error on the part of the magistrate – grounds of appeal not established – appeal dismissed

The Supreme Court has dismissed the appeal of a man who attempted to escape the Alexander Maconochie Centre by breaking through his cell window using a metal stool and then rappelling down to the ground outside by using bed sheets which had been tied together. The man had been sentenced to an aggregate of 12 months’ imprisonment for this and other minor offences by the magistrate hearing the matter. His appeal was on the grounds that the sentence was manifestly excessive.

The court considered the reasons of the magistrate in handing down his sentence and found that the sentence which had been imposed on the man was not only not manifestly excessive but was in fact lenient. In submissions, the man also raised points which asserted specific error on the part of the magistrate, but none of which were made out. The appeal was dismissed.

Tui v McLucas [2024] ACTSC 164

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by Magistrates Court – error in Magistrate’s findings as to criminal history – error conceded by respondent – no lesser sentence appropriate in all of the circumstances – fine and good behaviour order confirmed.

TRAFFIC LAW – Licensing of drivers – driving with prescribed concentration of alcohol – repeat offender – nature of default disqualification period – Court to undertake assessment of appropriate disqualification period in light of relevant sentencing purposes – legislative reduction of default disqualification period whilst appeal pending - disqualification period reduced.

The Supreme Court has allowed in part an appeal against sentence imposed by the Magistrates Court for an offence of driving while intoxicated. The prosecution conceded there was an error in the Magistrate’s findings as to the appellant’s criminal history. On resentence, the Court found that no lesser sentence was appropriate and confirmed the 18-month good behaviour order imposed. However, the Court reduced the licence disqualification period from 3 years to 20 months, noting that recent legislative amendments reducing the default disqualification period applied to the appeal by virtue of s 84A of the Legislation Act 2001.