Judgments and Sentences

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

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

 

Recent Court of Appeal, Supreme Court judgments and sentences:

  

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21 February 2020

R v Tamawiwy [2015] ACTSC 274

CRIMINAL LAW – Particular Offences – sexual offences – using electronic means to deprave a young person – using a carriage service to menace, harass or offend – sexual intercourse without consent – committing an act of indecency without consent.

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – application to adduce coincidence evidence.

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21 February 2020

R v Nicholas; R v Palmer [2019] ACTCA 38

APPEAL – Application for leave out of time – consideration of the interests of justice – no suggestion of any prejudice

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21 February 2020

R v Tahana [2019] ACTSC 54

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – admissibility of coincidence evidence

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21 February 2020

R v CI [2019] ACTSC 373 (SCC 44 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Order – Resentence

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21 February 2020

Nouri v Australian Capital Territory [2019] ACTCA 21

APPEAL – Application for certain documents to be included in the appeal papers – the affidavits were relied upon by the plaintiffs in an interlocutory application – whether the affidavits were before the trial judge at trial

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20 February 2020

R v BEK [2019] ACTSC 116

CRIMINAL LAW – Pre-Trial Application – tendency evidence – Awaiting trial on six counts – four counts of committing an act of indecency upon a person above the age of 10 years and under the age of 16 years – one count of maintaining a sexual relationship with a young person – one count of engaging in sexual intercourse with a person above the age of 10 years and under the age of 16 years – whether incidents alleged have significant probative value – whether the probative value of the evidence substantially outweighs the any prejudicial effect

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20 February 2020

Carvalho v Town [2020] ACTSC 1

CIVIL LAW – NEGLIGENCE – Appeal from Magistrates Court – cross-appeal – collision involving appellant’s car and a fire engine – whether magistrate erred in finding fire officer breached his duty of care – he did not – whether magistrate’s apportionment of contributory negligence should be altered – it should not

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19 February 2020

Waring v Laws [2020] ACTSC 33

APPEAL – CRIMINAL LAW – Review appeal under s 219D Magistrates Court Act 1930 (ACT) –   trafficking in a controlled drug other than cannabis – where magistrate relied on evidential burden not legal burden – substantial miscarriage of justice – appeal allowed – remitted back to Magistrates Court

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19 February 2020

Middleton v The Queen [2020] ACTCA 6

APPEAL – CRIMINAL LAW – Appeal against sentence – incorrect maximum penalty applied with respect to some offences – requires re-sentencing process – unnecessary to consider whether to admit fresh evidence – charges remitted to a single judge of the Supreme Court

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19 February 2020

Cornwall v Jenkins as Trustee for the iSpin Family Trust [2020] ACTCA 2

APPEAL – NEGLIGENCE – Breach of duty – appellant was injured while participating in an “aerial sling” exercise class – whether the primary judge erred in finding that the respondent had not breached her duty of care to the appellant by failing to require her to use a crash mat – whether, in the alternative, any breach of duty had not caused the appellant’s injuries – whether the appellant is guilty of contributory negligence

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19 February 2020

R v Michalopoulos [2020] ACTSC 27 (SCC 106 of 2019; SCC 107 of 2019; SCC 108 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – maintaining sexual relationship with young person – contravening a personal protection order – contravening a family violence order – offender and victim engaged in illicit drug use together – considered themselves to be a couple – circumstances made it clear to the offender the victim was under the age of 16 – sentence of imprisonment

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14 February 2020

Malhi v Antonijevic [2020] ACTSC 25

CIVIL LAW – APPEAL – Appeal from the Magistrates Court – where there was an error in the transcript of the proceedings before the Magistrate – where the error was crucial to the Magistrate’s decision – decision set aside – case remitted to the Magistrates Court for rehearing.

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14 February 2020

R v Tauiliili [2020] ACTSC 11 (SCC 112 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aid and abet aggravated burglary – residential building with occupants inside – sentencing of two co-offenders – plea of guilty on first day of trial – offender less culpable than other offender – aided and abetted by being present – no evidence of premeditation – limited criminal history – good prospects for rehabilitation – sentence of full-time imprisonment fully served

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14 February 2020

R v McCauley [2020] ACTSC 12 (SCC 114 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aid and abet aggravated burglary – residential building with occupants inside – sentencing of two co-offenders – offender more culpable than co-offender – poor criminal history – sentence of imprisonment

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13 February 2020

Talent v Official Trustee in Bankruptcy & Anor (No 4) [2019] ACTSC 372

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Interlocutory application – Injunction – Possession proceedings – Ejection

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13 February 2020

R v Sirl (No 4) [2020] ACTSC 23 (SCC 189 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Maintaining sexual relationship with young person – Accumulated sentence

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13 February 2020

Nouri v Australian Capital Territory [2020] ACTCA 1

APPEAL – NEGLIGENCE – Medical negligence – causation – child with birth defects – duty of hospital to inform parents of possibility of trachealoesophageal fistula (TOF) – date upon which duty arose – whether primary judge erred in finding that causation not established – whether appellants had proved that if informed of possibility of TOF mother would have undergone a selective termination of one twin in United States of America – burden of proof not discharged

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13 February 2020

IC Formwork Services Pty Ltd v Moir [2020] ACTCA 4

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal out of time – Application for leave to appeal interlocutory decision – Whether decision interlocutory – Whether appeal arguable – Workers compensation – Territory or state of connection

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12 February 2020

R v McMahon [2019] ACTSC 361 (SCC 70 of 2008; SCC 317 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – breach of Good Behaviour Order – resentence

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12 February 2020

R v SQ [2020] ACTSC 20 (SCC 315 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Act of indecency without consent – Complainants with intellectual disability – Abuse of position of authority

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12 February 2020

R v Ngata [2020] ACTSC 9 (SCC 232 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – common assault – recklessly inflict grievous bodily harm – early pleas of guilty – offending in higher range of objective seriousness – offender a trained boxer – strong evidence of remorse – no criminal history – risk of deportation – full-time imprisonment onerous upon the offender’s family – partially suspended sentence imposed – good behaviour order

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12 February 2020

R v AX [2019] ACTSC 363 (SCC 171 of 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – previous breaches – resentence

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12 February 2020

R v Bui [2019] ACTSC 366 (SCC 310 of 2018; SCC 311 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – unlawfully causing grievous bodily harm – use of weapon – reasonable prospects for rehabilitation

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12 February 2020

R v John (No 3) [2019] ACTSC 367 (SCC 17 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – breach of Community Service Order – breach of Good Behaviour Order – consideration of offender’s mental health

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11 February 2020

R v Gatica [2020] ACTSC 22 (SCC 49 of 2019; SCC 50 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dealing with the proceeds of crime – trafficking in a controlled drug – where additional offence taken into account – where extra-curial punishment – whether intensive corrections order appropriate

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10 February 2020

R v McCallum [2020] ACTSC 15 (SCC 55 of 2019; SCC 340 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in cocaine – Trafficking in cannabis – Possession of prohibited weapons – Money laundering – Outlaw motorcycle gang – Prospects of rehabilitation – Drug and alcohol treatment order

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7 February 2020

Higgins v Australian Capital Territory [2020] ACTSC 19

PRACTICE AND PROCEDURE – Applications in Proceedings – where the first defendant and the second defendant have filed Applications in Proceedings seeking to strike out sections of the plaintiff’s Statement of Claim – where there is no proper basis to seek injunctive or declaratory relief from the first defendant – where the Statement of Claim fails to provide a proper basis for the relief sought

SCHEME OF DEVELOPMENT – elements of cause of action – where there is an arguable claim against the second defendant – plaintiff given leave to replead

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7 February 2020

Walshe v The Queen [2020] ACTCA 5

APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – revocation of recognizance release order – fresh offences – imposition of suspended term of imprisonment

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7 February 2020

R v Wieland [2020] ACTSC 16 (SCC 299 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – arson – take motor vehicle without authority – pleas of guilty

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7 February 2020

R v LT (No 2) [2020] ACTSC 18 (SCC 265 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – Breach of good behaviour order – Rehabilitation a central sentencing consideration – Drug and alcohol treatment order

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7 February 2020

R v Kaihea [2020] ACTSC 17 (SCC 252 of 2018; SCC 253 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Offence of aggravated robbery – When the offence was committed while the offender was on conditional liberty – Good behaviour order cancelled and offender resentenced – Drug and alcohol treatment order

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6 February 2020

Naimo v NRMA Insurance [2020] ACTSC 4

PRACTICE AND PROCEDURE – EXPERT EVIDENCE – Application by defendants for doctors to give evidence by telephone or audiovisual link from outside the Australian Capital Territory – telephone evidence permitted

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5 February 2020

McLennan v Meyer Vandenberg [2020] ACTCA 7

APPEAL – DAMAGES – Scope of liability – solicitors’ negligent failure to advise on contract for sale of land – government buy back scheme applied to appellants’ asbestos affected property – whether scheme broke chain of causation – whether scheme fully restored the appellants – it did – further claim for economic loss – not established on the evidence
APPEAL – DAMAGES – Disappointment and distress – no recognised psychiatric illness – whether s 35 of the Civil Law (Wrongs) Act 2002 (ACT) applies to contract and tort – it does
APPEAL – GENERAL PRINCIPLES – Award of interest – not including period after Calderbank offer made.

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4 February 2020

Zonneveld v The Queen [2018] ACTCA 29

CRIMINAL LAW – Application for extension of time – application for leave to appeal – application for stay of proceedings – charge of one count of conspiracy to perform an act or acts of bestiality – indictment severed – applicant sought particulars – application for stay – quantum of costs – whether applicant had an arguable case for relief

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4 February 2020

R v Ralston [2019] ACTSC 120

CRIMINAL LAW – PRE-TRIAL APPLICATION – Tendency evidence – application to adduce evidence to prove that the accused has a tendency to act in a particular way and to have a particular state of mind – tendency evidence sought to prove the identity of the offender – effectively two complainants – consideration of probative value of the evidence
PRE-TRIAL APPLICATION – Orders sought to admit video recordings of police interviews as evidence in chief of witnesses at trial – consideration of s 15YM of Crimes Act 1914 (Cth)

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4 February 2020

R v Booth; R v Welsh; R v Vickerstaff [2019] ACTSC 187

EVIDENCE – PREVIOUS REPRESENTATIONS – Maker unavailable – Deceased – Relevance – Probative value – Whether prejudicial to the accused.
EVIDENCE – TAKING OF EVIDENCE – View – Whether an inspection would assist the jury – Trial judge may be persuaded to order a view based on evidence at trial.
CRIMINAL LAW – JURY DIRECTION – Lie as consciousness of guilt.

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4 February 2020

R v Palmer [2020] ACTSC 13 (SCC 186 of 2018

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – assault occasioning actual bodily harm – choke render person insensible – pleas of guilty

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4 February 2020

Ezekiel-Hart v Ikoro [2020] ACTSC 6

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Whether appeal arguable – Appeal from Magistrates Court

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3 February 2020

R v Hanrahan [2020] ACTSC 10 (SCC 231 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – intent to cause harm – in company

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3 February 2020

Subasic v Hewlett-Packard Australia Pty Ltd [2020] ACTSC 2

EMPLOYMENT – Contract of employment – breach – failure of employer to pay incentive payments – whether contract permitted discretion to cap incentive payments to employee – whether implied terms of good faith and duty to cooperate

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3 February 2020

Islam v Director-General of the ACT Department of Justice and Community Safety Directorate [2020] ACTSC 7

ADMINISTRATIVE LAW – Judicial Review – application for judicial review of decisions to terminate the applicant’s placement in the Men’s Accommodation and Support Services Program and to cancel the applicant’s Parole Order – applicant seeking an extension of time – where Everyman Australia is not a public authority or agency – where the Parole Board acted in accordance with its obligations in coming to its decision to cancel  the applicant’s parole

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3 February 2020

Hill v The Council of the Law Society of the ACT [2020] ACTCA 3

COURT OF APPEAL – ADMINISTRATIVE LAW – Appeal of Judicial Review – whether the primary judge erred in finding that the instruments of appointment complied with the provisions of the Legal Profession Act 2006 (ACT) – whether his Honour correctly interpreted the relevant paragraphs of the LPA – whether a different interpretation of the relevant paragraphs of the LPA would alter the decision reached by the primary judge

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30 January 2020

R v Can [2019] ACTSC 368 (SCC 282 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty – cultivating a commercial quantity of a controlled plant, namely cannabis – consideration of moral culpability – good prospects for rehabilitation

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30 January 2020

R v Gladman [2019] ACTSC 371 (SCC 10 of 2018; SCC 11 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – guilty plea – trafficking in a commercial quantity of a controlled drug – trafficking in a trafficable quantity of cannabis – consideration of moral culpability – reasonable prospects of rehabilitation

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29 January 2020

R v Mynott [2020] ACTSC 3 (SCC 21 of 2019; SCC 22 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – obtain financial advantage by deception – unlawful possession of stolen property – credit card transactions

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23 January 2020

R v Goodge [2019] ACTSC 297 (SCC 11 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – making a demand with a threat to endanger health, safety or physical wellbeing – intensive correction assessment to be prepared – where restorative justice is appropriate

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23 January 2020

R v XXL [2019] ACTSC 294 (SCC 57 of 2019; SCC 115 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – burglary – offender under 18 years old at time of offence – later offence of aggravated robbery when an adult – whether s 80 of the Crimes (Sentencing) Act 2005 (ACT) constrains the availability of an intensive correction order for the latter offence – it does if a good behaviour order is imposed for the first offence – intensive correction order made for aggravated robbery

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22 January 2020

R v EJ [2017] ACTSC 27

CRIMINAL LAW – Particular Offences – offences against the person – act of indecency with a young person – indecent assault.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – significant probative value – special features – unsupported evidence by the complainant – potential prejudice – application is refused.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit relationship or context evidence – to explain charged act was not an isolated incident – application allowed.

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22 January 2020

R v Cowling [2018] ACTSC 188

CRIMINAL LAW – Pre-Trial Application – relationship evidence – context evidence – whether the material is relevant – whether the material should be excluded under s 137 of the Evidence Act 2011 (ACT) – credibility – whether the probative value is outweighed by potential prejudicial effect

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22 January 2020

R v Ophel [2019] ACTSC 325 (SCC 344 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Indicative Sentence – five counts attempted murder – not guilty by reason of mental impairment – consideration of s 302 Crimes Act 1900 (ACT)

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21 January 2020

R v Hamilton (No 2) [2019] ACTSC 330 (SCC 240 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – committing an act endangering life – real steps towards rehabilitation – suitability for Intensive Corrections Order

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21 January 2020

R v Sanderson [2016] ACTSC 277 (SCC 234 of 2015)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – co-offenders – guilty pleas – assault occasioning actual bodily harm – unlawful confinement – offender giving evidence against co-offenders

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20 January 2020

R v BEK (No 2) [2019] ACTSC 324 (SCC 295 of 2018; SCC 296 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – incest – whether subsequent offending to be treated as a prior conviction – relevance of delay where 28-29 years after offending conduct

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20 January 2020

R v Maruskanic [2019] ACTSC 337 (SCC 316 of 2018) 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography material – possession of child abuse material – using a carriage service to access child pornography material – very good prospects of rehabilitation – whether immediate term of imprisonment ordinarily warranted for child pornography offences

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20 January 2020

R v Crowther [2019] ACTSC 338 (SCC 154 of 2019; SCC 155 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – assault – excellent prospects for rehabilitation – suitability for Intensive Correction Order

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16 January 2020

R v Vojneski [2014] ACTSC 66

EVIDENCE – Tendency Evidence – murder – circumstantial case – accused’s use of knives – whether probative value substantially outweighs prejudicial effect on accused – ss 97, 101 Evidence Act 2011 (ACT) – single incident does not normally support a tendency EVIDENCE ¬– Coincidence Evidence – murder – circumstantial case – accused’s use of knives – whether probative value substantially outweighs prejudicial effect on accused – ss 98, 101 Evidence Act 2011 (ACT) – a combination of non-striking similarities will rarely, if ever, have significant probative value

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16 January 2020

R v SC [2019] ACTSC 237 (SCC 257 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 years – act of indecency in the presence of another person under the age of 10 years – pleas of guilty – subject to a Good Behaviour Order at the time of the offences – whether moral culpability was lessened by reason of mental disorder – drug abuse – significant degree of premeditation involved – prospects for rehabilitation cannot be described as good

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16 January 2020

R v Sharp [2019] ACTSC 360 (SCC 7 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threatening or intimidating a witness – plea of guilty – aggravating circumstance that the victim was a police officer acting in the course of his duties – serious example of this type of offending

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15 January 2020

R v Sullivan [2019] ACTSC 163 (SCC 43B of 2018; SCC 44 of 2018; SCC 280 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – possession of a prohibited firearm – possession of ammunition for a firearm – pleas of guilty – drug addiction – consideration of prospects for rehabilitation

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10 January 2020

R v Froome [2018] ACTSC 152 (SCC 221 of 2017; SCC 222 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – unlawful confinement – demands accompanied by threats – pleas of guilty

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10 January 2020

R v DT [2018] ACTSC 355 (SCC 170 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a young person – using a carriage service for child pornography material – possess child pornography – using the internet to provide pornographic material to a young person

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10 January 2020

R v Grey [2019] ACTSC 104

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – acts of indecency without consent – sexual intercourse without consent – offences against sex workers

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10 January 2020

R v Watson [2019] ACTSC 63

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – application to present evidence in summary form

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9 January 2020

R v Apps [2019] ACTSC 249

CRIMINAL LAW – EVIDENCE – Application in proceeding – Two offenders – Aggravated robbery by way of joint commission – Application to sever indictment and separate trial of co| accused – where the case against the applicant is alleged to be significantly weaker than co| accused – whether or not there is a real risk of positive injustice as a consequence of joint trial

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9 January 2020

R v Tang (No 2) [2019] ACTSC 21

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial – trial by judge alone – circumstantial case – verdict – accused found not guilty of negligent driving causing grievous bodily harm

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8 January 2020

R v Collier [2019] ACTSC 358 (SCC 199 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – circumstances of violence – where offender did not personally perpetrate or threaten violence – plea of guilty – criminal history

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20 December 2019

R v Sirl (No 3) [2019] ACTSC 355 (SCC 63 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – maintaining sexual relationship with a young person – two acts of sexual intercourse – exploitation of the victim’s use of methamphetamine – no evidence of remorse – offender introduced to illicit drugs at very early age – substantial criminal history – totality – sentence of imprisonment

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20 December 2019

R v Vickerstaff [2019] ACTSC 205

CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – application to exclude evidence – voluntary statement made by the accused to police – where evidence of a lie may be an implied admission – whether the accused a protected person for the purposes of the Crimes Act 1914 (Cth) – whether the accused “questioned as a suspect” – whether admission admissible if not recorded – reliability of admissions – discretion to exclude admissions

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19 December 2019

R v Mullins [2016] ACTSC 230

CRIMINAL LAW – EVIDENCE – Tendency Evidence – application to adduce – s 97 Evidence Act 2011 (ACT)

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19 December 2019

In the matter of an adoption of QS [2019] ACTSC 357

ADOPTION – APPLICATION TO DISPENSE WITH CONSENT OF BIRTH PARENTS – Whether requirements of s 35 of the Adoption Act 1993 (ACT) are satisfied – where child raised by foster carers since birth – where birth mother still involved with child, has a bond with the child and is seeking to be more involved with the care of the child – application dismissed

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19 December 2019

R v Sidaros (No 2) [2019] ACTSC 348

CRIMINAL LAW – EVIDENCE – Whether representations made by the accused should be excluded under ss 138 and/or 90 – Exclusion of improperly obtained evidence – Representations made to police following caution – When representations made after police provided accused with statement of facts and informed accused that they will not question him

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19 December 2019

R v DD [2017] ACTSC 109 (SCC 32 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – assault occasioning actual bodily harm – stalking – attempting to contravene a protection order – contravening a protection order – domestic violence – criminal history

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19 December 2019

R v Greentree (No 2) [2017] ACTSC 315 (SCC 192 of 2017; SCC 193 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – aggravated burglary – common assault – possess a knife without a reasonable excuse

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19 December 2019

R v Greentree [2017] ACTSC 274

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – aggravated burglary – whether the accused committed the burglary in company

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18 December 2019

R v Sidaros (No 3) [2019] ACTSC 349

CRIMINAL LAW – EVIDENCE – Unfavourable evidence – Whether evidence given by witness who cannot recall material in prior statement is “unfavourable” under s 38

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18 December 2019

R v Vickerstaff (No 2) [2019] ACTSC 343 (SCC 274 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender identified as the principal offender – offender entered a plea of guilty following pleas of guilty by co-offenders – some evidence of premeditation – weapon used in offence – use of weapon opportunistic – consideration of remorse – consideration of mental health diagnoses

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18 December 2019

R v Welsh [2019] ACTSC 344 (SCC 273 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing –manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender identified as the least culpable – offender entered early plea of guilty – significant criminal history

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18 December 2019

R v Booth [2019] ACTSC 345 (SCC 272 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing –manslaughter – sentencing of three co-offenders – offence by joint commission with varied degrees of culpability – offender identified as the least culpable – offender entered early plea of guilty – significant criminal history

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17 December 2019

R v Sirl [2019] ACTSC 225

EVIDENCE – Subpoenas – application by the Crown for protected confidences to be disclosed – where legitimate forensic purpose identified – where preliminary examination conducted

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16 December 2019

R v EN [2019] ACTSC 354 (SCC 51 of 2019; SCC 190 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – maintain sexual relationship with young person – maintain sexual relationship with person under special care – indecent assault male – pleas of guilty

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13 December 2019

R v Mitchener [2019] ACTSC 351 (SCC 163 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – using a carriage service to access child pornography material – intentionally possess child exploitation material – pleas of guilty

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13 December 2019

R v Lau; R v Lutze [2019] ACTSC 353

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – joint commission aggravated burglary – joint commission aggravated robbery – alternative charge of joint commission theft – co‑offenders – whether accused entered into an agreement to commit offences – whether there was use of or threatened use of force

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13 December 2019

R v MZ [2019] ACTSC 341 (SCC 318 & 319 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – sexual intercourse without consent – administer a declared substance without authority – offending in the lower range of objective seriousness for the offences – no criminal history – positive character references – no remorse – offender suffering from depression and anxiety – full-time imprisonment more onerous upon the offender – partially suspended sentence imposed

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11 December 2019

R v Edwards [2019] ACTSC 346

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to plead – intellectual disability – capacity to exercise right to challenge jurors or the jury – accused found fit to plead

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10 December 2019

Faris v Savage [2019] ACTSC 339

APPEAL – Application to join appellant’s former solicitor as a party to the appeal – Application for leave to adduce fresh evidence on the hearing of the appeal – question of costs – reference to some matters of principle regarding the ground of appeal – consideration of the nature of the evidence which the appellant sought to adduce on the hearing of the appeal

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6 December 2019

R v Nicholas; R v Palmer [2019] ACTCA 36

APPEAL – CRIMINAL LAW – Appeal against sentence – Crown appeal – Reduction of sentence for guilty plea – Late guilty plea – Schedule of offences taken into account – Two co-offenders sentenced to the same head sentence – Co-offenders with different subjective circumstances – Whether error in applying sentence discount – Whether manifest inadequacy of sentence and nonparole period – Parity – Residual discretion – Resentence

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6 December 2019

KN v The Queen [2019] ACTCA 37

APPEAL – CRIMINAL LAW – Statutory interpretation of s 56 of Crimes Act – Elements of maintain sexual relationship with a young person – Engage in sexual intercourse with a young person charged on the same indictment as relationship offence – Whether the acts relied upon to satisfy specific sexual offences can also be relied upon to satisfy sexual relationship offence – Model Provision of the Royal Commission into Institutionalised Sexual Abuse –Double jeopardy – Departure from cardinal principle of criminal law requiring jury unanimity

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4 December 2019

Lodding v Barnes [2019] ACTSC 335

CRIMINAL LAW – APPEAL – Sentence – trafficking a controlled drug – whether the Magistrate provided adequate reasons for sentencing decision – whether the Magistrate gave adequate consideration to sentencing alternatives – appeal upheld CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – conviction confirmed – appellant re-sentenced

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4 December 2019

Rogers v Thackray [2019] ACTSC 336

CRIMINAL LAW – APPEAL – Sentence – act of indecency in the presence of another without their consent – whether the Magistrate took early guilty plea into account – where discount not explicitly stated in the Magistrate’s reasons for decision – whether the sentence was manifestly excessive – appeal upheld CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – conviction confirmed – appellant re-sentenced

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3 December 2019

R v Teer [2019] ACTSC 334 (SCC 189 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – assault occasioning actual bodily harm – where offender and victim were in a domestic relationship – where no criminal record – where parties agreed threshold of s 10 of the Crimes (Sentencing) Act 2005 (ACT) has not been crossed

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3 December 2019

Kirby v MZ [2019] ACTSC 327

CRIMINAL LAW – RELATED CHARGE – Determined by court without jury – administer a declared substance without authorisation – jury found accused guilty of sexual intercourse without consent – whether accused administered a substance to the complainant – he did – whether the substance administered to the complainant was a declared substance

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3 December 2019

R v Watson (No 2) [2019] ACTSC 252

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application for permanent stay – application for conditional stay – where Crown files a notice of discontinuance for the purposes of reissuing an indictment rather than ending a prosecution – tendency evidence – latent duplicity in indictment – coincidence evidence – application to admit evidence in a summary form – whether or not evidence admitted in a summary form should include a qualification
EVIDENCE – SUMMARY DOCUMENT – Summary of evidence under s 50 of the Evidence Act 2011 (ACT) – whether merely aide memoire – whether underlying documents need to be tendered

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3 December 2019

Urlich v The Queen [2019] ACTCA 30

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – where appellant convicted of manslaughter – where appellant had made significant admissions in the course of the trial – non-compliance with s 37 of the Crimes (Sentencing) Act 2005 (ACT) – whether specific error – whether sentence was manifestly excessive – whether resentencing warranted