New Judgments and Sentences


Recent Court of Appeal, Supreme Court judgments and sentences:

R v Nicholas; R v Palmer [2019] ACTCA 36
Uploaded 6 December 2019
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

KN v The Queen [2019] ACTCA 37
Uploaded 5 December 2019
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

Lodding v Barnes [2019] ACTSC 335
Uploaded 4 December 2019
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 upheldCRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – conviction confirmed – appellant re-sentenced

Rogers v Thackray [2019] ACTSC 336
Uploaded 4 December 2019
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

R v Teer [2019] ACTSC 334 (SCC 189 of 2018)
Uploaded 3 December 2019
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

Kirby v MZ [2019] ACTSC 327
Uploaded 3 December 2019
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 – it was

R v Watson (No 2) [2019] ACTSC 252
Uploaded 3 December 2019
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

Urlich v The Queen [2019] ACTCA 30
Uploaded 3 December 2019
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

R v Hicks [2019] ACTSC 323
Uploaded 29 November 2019
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence –whether reasonable notice has been given – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect

R v Hicks [2019] ACTSC 331
Uploaded 29 November 2019
CRIMINAL LAW – STATUTORY INTERPRETATION – Definition of Child Exploitation Material – ejusdem generis rule

R v Hicks (No 2) [2019] ACTSC 333 (SCC 227 of 2019; SCC 131 of 2019)
Uploaded 28 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the presence of a young person – possession of child exploitation material

R v Collaery (No 3) [2019] ACTSC 332
Uploaded 28 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to delay commencement of a s 27 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) hearing – hearing date listed many months prior – Attorney-General seeking further time to respond to affidavit evidence of accused – further applications required – s 27 hearing delayed

R v Murray (No 3) [2019] ACTSC 328 (SCC 108 of 2016)
Uploaded 22 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – second breach of good behaviour order

Blundell v The Queen [2019] ACTCA 34
Uploaded 22 November 2019
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – appeal against sentence – discount for plea of guilty – manifestly excessive nonparole period – prospects of rehabilitation

R v Murray (No 2) [2017] ACTSC 423 (SCC 108 of 2016)
Uploaded 22 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of good behaviour order.

R v Kalachoff (No 2) [2017] ACTSC 314
Uploaded 22 November 2019
EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Judicial discretion to admit or exclude evidence – admissibility of closed circuit television footage where portion missing – evidence is of high probative value – no unfair prejudice to the accused – footage not inadmissible pursuant to s 137 of the Evidence Act 2011 (ACT)

R v Kalachoff [2017] ACTSC 310
Uploaded 21 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – trial of an alleged indigent person – Dietrich application – alleged abuse of process by Crown – alleged forensic disadvantage – stay of proceedings not granted

R v EUC [2019] ACTSC 185
Uploaded 21 November 2019
CRIMINAL LAW – Application In Proceeding – Tendency evidence – reasons for decision to make orders sought by the Crown – relevance of proposed tendency evidence – probative value of proposed tendency evidence – whether alleged incidents were too remote in time to afford significant probative value –whether alleged incidents possess sufficient similarity – whether probative value of proposed tendency evidence significantly outweighs potential prejudicial effect

NO v The Queen [2019] ACTCA 33
Uploaded 21 November 2019
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – jury trial – differential verdicts – unreasonable and unsupportable verdicts – logical or rational explanation for inconsistency – evidence of complainant – credibility of complainant

Director of Public Prosecutions (ACT) v Can (No 2) [2019] ACTSC 308
Uploaded 21 November 2019
CONFISCATION OF CRIMINAL ASSETS – APPLICATION FOR ORDERS BY CONSENT– Need to formulate consent orders that are consistent with the Confiscation of Criminal Assets Act 2003 (ACT) – scope of s 252 – duty of parties under s 5A of Court Procedures Act 2004 (ACT)

Director of Public Prosecutions (ACT) v Nguyen [2019] ACTSC 320
Uploaded 21 November 2019
CONFISCATION OF CRIMINAL ASSETS – APPLICATION FOR ORDERS BY CONSENT – Application for civil forfeiture order – application for penalty order – application for exclusion order – consent orders formulated in terms no longer relevant to the restrained property to which they would apply

R v Figura (No 2) [2019] ACTSC 222 (SCC 69 of 2019; SCC 132 of 2019)
Uploaded 20 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – whether sentence should be served by intensive corrections order – offending conduct driven by offender’s use of methamphetamines – offender has spent substantial period in custody attributable to present offences

Dong v Song (No 5) [2019] ACTSC 273 (SC 100 of 2016)
Uploaded 20 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – contempt – sentence – power to impose – subjective factors outweighing objective seriousness – community service

Beckett v Lemanski [2019] ACTSC 322
Uploaded 19 November 2019
PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer to NSW Supreme Court in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – preponderance of connecting factors with NSW – uncertainty as to the ability of the parties to obtain a hearing date if the matter is cross-vested – greater certainty as to the timely completion of the matter if heard in the ACT –  consideration of the interests of justice – application dismissed

In the matter of the adoption of AM [2019] ACTSC 321
Uploaded 19 November 2019
ADOPTION – Application for an adult adoption order ¬ jurisdictional issue – applicant does not reside in the ACT as required by s 13 of the Adoption Act 1993 (ACT) – equivalent NSW legislation possesses similar jurisdictional issues because the prospective adoptee resides in the ACT – application adjourned

Ryan v Australian College of Mental Health Nurses Incorporated (No 2) [2019] ACTSC 318
Uploaded 19 November 2019
COSTS – Plaintiff seeks alternative costs order – pre-litigation conduct of the defendant in issue ¬– where plaintiff sought an injunction to prevent termination of employment – where application to continue injunction unsuccessful – conduct of the defendant encouraged the plaintiff to pursue her unsuccessful claim – costs of the application be the defendant’s costs in the cause

Robb v Uren [2019] ACTSC 312
Uploaded 18 November 2019
CRIMINAL LAW – Magistrates Court Appeal – appeal from sentence imposed by the Magistrate – whether the Magistrate erred in imposing a non-association order – consideration of s 23 of the Crimes (Sentencing) ACT 2005 (ACT)

Zierholz@UC Pty Ltd v University of Canberra [2019] ACTSC 310
Uploaded 18 November 2019
CONTRACTS – Construction and Interpretation of Contracts –Whether the University of Canberra or the UCU Ltd breached contractual obligations owed to Zierholz – whether Zierholz breached its contractual obligations owed to the UCU Ltd
TRADE AND COMMERCE – Misuse of Market Power – Whether the University of Canberra or the UCU Ltd contravened the Competition and Consumer Act 2010 (Cth)
EQUITY – Fiduciary Duties – Whether the University of Canberra or the UCU Ltd owed fiduciary obligations to Zierholz

NS v Hotchkis [2019] ACTSC 309
Uploaded 18 November 2019
CRIMINAL LAW – Magistrates Court Appeal – hearing in Magistrates Court – finding of guilt – appeal from finding of guilt –whether the Magistrate erred in ruling that the audio recording made by the complainant was admissible – consideration of the Listening Devices Act 1992 (ACT) and the Evidence Act 2011 (ACT)

Johns v Director-General of The ACT Justice and Community Safety Directorate [2019] ACTSC 311
Uploaded 18 November 2019
ADMINISTRATIVE LAW – JUDICIAL REVIEW  – Judicial review of decisions made by The ACT Justice and Community Safety Directorate – plaintiff serving sentence of imprisonment at the time the decisions were made – whether the Court should extend the time for the bringing of an application for prerogative relief and/or relief under the ADJR Act – whether the matters complained of by the plaintiff are “decisions” which may attract relief under the ADJR Act – consideration of the complaints made by the plaintiff

Sports Centres Australia Pty Limited v Commissioner for Australian Capital Territory Revenue (No 2) [2019] ACTSC 314
Uploaded 15 November 2019
COSTS – Dispute between plaintiffs and second defendant – where the second defendant claims that they took an active part in the proceedings based on the plaintiffs’ pre-hearing position ¬– plaintiffs’ position changed at hearing – whether the second defendant was a necessary party in any event ¬– where the plaintiffs’ claim that pre-hearing exchanges as to potential orders were qualified ¬– joinder of Registrar-General necessary ¬– whether a Sanderson order should be made  – second defendant to bear his/her own costs

Ezekiel-Hart v Reis [2019] ACTCA 31
Uploaded 15 November 2019
APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where summary judgment entered against the applicant – whether errors in the decision of the primary judge identified – there were not – whether arguable grounds of appeal – there are not APPEAL – APPLICATION FOR EXTENSION OF TIME TO APPEAL – Where primary judge not satisfied that it was not reasonable for the plaintiff to have commenced defamation proceedings within time period – whether primary judge erred in refusing an application for an extension of time to lodge an appeal – he did no

Connell v Australian Capital Territory [2019] ACTSC 307
Uploaded 14 November 2019
CIVIL LAW – PRIVILEGE AND CONFIDENTIALITY – Legal professional privilege – investigative report into alleged medical negligence involving an infant – privilege claimed – redacted version of report disclosed by compulsion of law – whether unredacted version must be disclosed – whether the disclosure requirements of the Civil Law (Wrongs) Act 2002 (ACT) abrogated privilege – whether privilege waived

In the Estate of Hansie Hart [2019] ACTSC 317
Uploaded 11 November 2019
WILLS AND ESTATES – Directions pursuant to s 97A of the Administration and Probate Act 1929 (ACT) – where named beneficiary cannot be located – where extensive searches have been undertaken

O’Donnell v O’Donnell [2019] ACTSC 313
Uploaded 11 November 2019
PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – whether a claim under the Family Provision Act 1969 (ACT) should be transferred to NSW – where domicile in issue – where proceedings also commenced in NSW seeking orders under the Succession Act 2006 (NSW) – where a potential notional estate in existence – determination in accordance with the “interest of justice” – proceedings transferred to the NSW Supreme Court

R v Grey (No 2) [2019] ACTSC 315
Uploaded 7 November 2019
CRIMINAL LAW - PRACTICE AND PROCEDURE – Engage in sexual intercourse without consent – Commit acts of indecency without consent – Consent alleged to have been negated by abuse of position of authority or trust – Meaning of “abuse of position of authority over”

R v Thomas [2019] ACTSC 306 (SCC 225 of 2019)
Uploaded 7 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – arson damaging property – offender suffers from schizophrenia and chronic pain condition – bed available at a residential rehabilitation facility – suspended sentence imposed upon entry into good behaviour order with residential rehabilitation program requirement

R v Baker [2019] ACTSC 316 (SCC 159 of 2019)
Uploaded 6 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Obtain financial advantage by deception – Commonwealth offence – False declarations to Department of Human Services – Disability pension – Where the offender has no criminal record and strong prospects of rehabilitation – Intensive correction order – Reparation order

R v KN [2019] ACTSC 305 (SCC 191 of 2019)
Uploaded 1 November 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – drive motor vehicle without consent – sentencing young person – relatively modest previous offending – good behaviour order imposed

R v Denniss [2019] ACTSC 283 (SCC 204 of 2019)
Uploaded 31 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – two offences of arson committed whilst offender in custody – quantum of damage in relation to two offences in excess of $100,000 – utility of a reparation order

TW v Director-General of the Justice and Community Safety Directorate [2019] ACTSC 300
Uploaded 30 October 2019
PRACTICE AND PROCEDURE – Application in Proceeding to strike-out Originating Application for Judicial Review – failure to identify an error – no identifiable cause of action – Originating Application struck-out
JUDICIAL REVIEW – Plaintiff seeks review of Static 99 Tally Sheet completed as part of parole determination process – whether the Tally Sheet was erroneously completed – whether a different version of the Tally Sheet should have been used – whether the interpretation of the Coding Manual used to complete the Tally Sheet was erroneous – no factual error found – no error in Corrective Services using the Static 99 Tally Sheet – no error in the interpretation of the Coding Manual

R v Collaery (No 2) [2019] ACTSC 296
Uploaded 29 October 2019
PRACTICE AND PROCEDURE – AMICUS CURIAE – application for leave to be heard as amicus curiae – application refused

R v Collins [2019] ACTSC 302 (SCC 167 of 2018; SCC 168 of 2018)
Uploaded 29 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission of damage to property – obtaining property by deception – taking and driving a motor vehicle without consent – aggravated furious, reckless or dangerous driving – driving while disqualified – deferred sentence – where evidence of rehabilitation

Talent v Official Trustee in Bankruptcy (No 3) [2019] ACTSC 303
Uploaded 25 October 2019
COSTS – CROSS-VESTING APPLICATION – Application to transfer proceedings to the Federal Court – bankruptcy – Family Provision Act claim – applicant successful – whether the respondent on the Application in Proceeding should pay the Executor’s costs – costs to follow the event

TS v DT [2019] ACTSC 295
Uploaded 25 October 2019
APPEAL – FAMILY VIOLENCE – Appealing of the decision of a Magistrate to make a final Family Violence Order in accordance with s 34 of the Family Violence Act 2016 (ACT) – whether the Magistrate failed to take proper account of interim orders when making the final orders – whether the Magistrate failed to consider the appellant’s living arrangements before making the final orders – whether the Magistrate failed to give proper weight to the living arrangements of the appellant before making the final orders – whether the Magistrate possessed enough evidence of instances of family violence before making the final orders – appeal dismissed
CRIMINAL LAW – EVIDENCE – Whether evidence of previous convictions relied-upon by the Magistrate should have been excluded – whether an application for leave to appeal out of time is an “instituted” appeal or review – where the Court was on notice as to the existence of the application – application of ss 91 and 92 of the Evidence Act 2011 (ACT) – Magistrate erred in taking account of convictions – error did not lead to miscarriage of justice

HL v HP [2019] ACTSC 299
Uploaded 24 October 2019
DAMAGES – Assessment and quantum – General damages – Aggravated damages – Future medical expenses – Sexual assault – Battery

R v Williams [2019] ACTSC 298 (SCC 36 of 2019)
Uploaded 24 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted robbery – Aggravated robbery – Take motor vehicle without consent – Guilty plea following Criminal Case Conference –Where offender has extensive criminal history – Where offender has a significant substance abuse problem and mental health concerns – Where youth of the offender is relevant – Where offender is unsuitable for intensive correction order – Rehabilitation and acknowledgment of harm are important sentencing considerations

D’Arcy v Caltex Australia Petroleum Pty Ltd [2019] ACTCA 27
Uploaded 23 October 2019
APPEAL – NEGLIGENCE – Duty of care – workplace accident fibreglassing an underground petroleum storage tank – appellant severely burnt – claim against occupier of premises which had lease from Crown lessee – appellant an employee of a contractor engaged by Crown lessee – scope of duty of care – whether obligations under Work Health and Safety Regulation 2011 (ACT) affect content of duty of care – whether occupier obliged to take steps to check capacity of contractor of Crown lessee to comply with proposed method of work – whether primary judge erred in finding that occupier of premises did not breach duty of care – he did not
APPEAL – STATUTORY DUTY – Duties on persons in control of non-registrable premises under Dangerous Substances (General) Regulation 2004 (ACT) – whether primary judge erred in finding that statutory duties arising under regulations were not breached – he did not

R v CN; R v SN; R v Rix [2019] ACTSC 293 (SCC 95 of 2018; SCC 98 of 2018; SCC 213 of 2018; SCC 214 of 2018)
Uploaded 21 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Guilty verdict – Parity between co-offenders – Youth and rehabilitation are relevant sentencing considerations

Cruz v Director-General of the Justice and Community Safety Directorate [2019] ACTSC 291
Uploaded 21 October 2019
PRACTICE AND PROCEDURE – Application in Proceeding to strike-out Originating Application for Judicial Review – failure to identify a “decision” capable of review – Originating Application struck-out  – no identifiable cause of action
JUDICIAL REVIEW – Plaintiff seeking review of contents of pre-release reports relied upon by the Parole Board and the Director-General – where the plaintiff claims the ACT Corrective Services Homes Visits Assessment Policy was not complied with when preparing the reports – whether the Policy is a legislative instrument – Policy determined not to be a legislative instrument

R v Collaery [2019] ACTSC 278
Uploaded 18 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Dealing with sensitive national security information – request for orders by consent – orders by consent intrusive on autonomy of the court – request for court staff to enter into arrangements with Australian Secret Intelligence Service under Pt 6 of the Intelligence Services Act 2001 (Cth) – orders to be made ahead of s 27 hearing under National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)

Kempster v Healthscope Operations Pty Ltd (No 2) [2019] ACTSC 285
Uploaded 18 October 2019
COSTS – Plaintiff successful in substantive claim – plaintiff seeking a costs order in accordance with sub-r 1010(2)(a) of the Court Procedure Rules 2006 (ACT) –  judgment more favourable than offer of compromise – defendant seeking a costs order “otherwise” than that prescribed by the rules – whether late service of expert reports and supporting material constitutes “exceptional circumstances”

R v Winters [2019] ACTSC 289 (SCC 135 of 2019; SCC 136 of 2019)
Uploaded 18 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted aggravated burglary – Guilty plea

R v UG [2019] ACTSC 290 (SCC 200 of 2019; SCC 201 of 2019)
Uploaded 18 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Damage property – Possess offensive weapon with intent – Common assault – Presence of children

Talent v Official Trustee in Bankruptcy (No 2) [2019] ACTSC 287
Uploaded 18 October 2019
COSTS – APPLICATION FOR INJUNCTION – Orders made by consent – whether costs should be awarded in favour of one party – merits of underlying family provision claim not determined – costs reserved

R v Forster-Jones [2019] ACTSC 159
Uploaded 18 October 2019
CRIMINAL LAW – EVIDENCE – Pre-Trial application –application for co-accused to be declared ‘not available’ to give evidence within the Dictionary meaning in the Evidence Act 2011 (ACT) – application for leave to adduce evidence of previous representations

R v Forster-Jones (No 2) [2019] ACTSC 286 (SCC 113 of 2018)
Uploaded 18 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Multiple offences for violence – Murder – Guilty pleas

R v KI [2019] ACTSC 292 (SCC 169 of 2019)
Uploaded 17 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of Indecency on a person under 10 years

R v BM [2019] ACTSC 281 (SCC 138 of 2019)
Uploaded 15 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Traffic in controlled drug other than cannabis namely heroin – guilty plea

R v Bedford [2019] ACTSC 282 (SCC 118 of 2019)
Uploaded 15 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty –  significant criminal history

Eastman v The Australian Capital Territory [2019] ACTSC 280
Uploaded 14 October 2019
CIVIL PROCEDURE – Claim for compensation after plaintiff was  convicted and imprisoned for murder in 1995 – conviction was quashed in 2014 – civil proceedings stayed in 2016 – plaintiff re-tried in 2018 – plaintiff acquitted – civil proceedings revived
HUMAN RIGHTS – Miscarriage of Justice – wrongful conviction and unlawful detention – Right to liberty and security of person – Compensation for wrongful conviction
COMPENSATION – QUANTUM – Entitlement to and Assessment of compensation – Right to compensation – act of grace payment – ex gratia payment – public law damages
STATUTES – INTERPRETATION – Human Rights Act 2004 (ACT) s 23 – meaning of ‘reversed’ – whether or not the plaintiff’s conviction was reversed – whether or not there was a miscarriage of justice – Financial Management Act 1996 (ACT) – whether or not it provides for the compensation dictated by the Human Rights Act 2004 (ACT)

Sports Centres Australia Pty Limited v Commissioner for Australian Capital Territory Revenue [2019] ACTSC 279
Uploaded 11 October 2019
JUDICIAL REVIEW – STATUTORY INTERPRETATION – Rates Act 2004 (ACT) – Taxation Administration Act 1999 (ACT) – Legislation Act 2001 (ACT) –  when rates become “payable” – powers of the Commissioner for ACT Revenue to apply for a charge over title – delegation – whether procedural fairness owed
JUDICIAL REVIEW – PROCEDURAL FAIRNESS – Taxation Administration Act 1999 (ACT) – whether procedural fairness must be afforded to a ratepayer prior to the Commissioner for ACT Revenue applying for a statutory charge over title
JUDICIAL REVIEW – DELEGATION – Whether a delegate of the Commissioner for ACT Revenue had jurisdiction to apply for a statutory charge – whether delegation required – where relevant delegation came into effect the day after the delegate sought to exercise the delegated power

R v Kalachoff [2019] ACTSC 264
Uploaded 11 October 2019
CRIMINAL LAW – Application for permanent stay, and in the alternative a temporary stay or vacation of the trial day – Applicant awaiting third trial – charge of recklessly inflicting grievous bodily harm with an alternative charge of assault occasioning actual bodily harm

The Queen v Miller [2019] ACTCA 25
Uploaded 9 October 2019
APPEAL – CRIMINAL LAW – Crown appeal against sentence –sexual intercourse without consent – whether the primary judge erred in failing to assess the objective seriousness of the offence – whether the sentence was manifestly inadequate – whether the Court should exercise its residual discretion to decline to intervene

Denniss v The Queen [2019] ACTCA 26
Uploaded 9 October 2019
APPEAL – CRIMINAL LAW – Appeal against sentence – one charge of aggravated robbery – one charge of failing to return to custody – whether the sentence was manifestly excessive

Campbell v Blackshaw (No 2) [2019] ACTCA 28
Uploaded 9 October 2019
PRACTICE AND PROCEDURE – COSTS  – Application for indemnity costs following appeal – where alleged hopeless case – where alleged delay, non-compliance and abuse of process by unsuccessful party – whether indemnity costs warranted

R v NQ [2019] ACTSC 275 (SCC 290 of 2019)
Uploaded 8 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – jury trial – guilty verdict – burglary – where earlier pleas rejected – where no relevant criminal history –  where assessed as suitable for an intensive corrections order – whether a good behaviour order is nevertheless appropriate

ACT Planning and Land Authority v 50 Emu Drive Pty Ltd [2019] ACTSC 276
Uploaded 4 October 2019
APPEAL – APPEAL FROM ACT CIVIL AND ADMINISTRATIVE TRIBUNAL  – Application for development approval – where ACAT granted conditional approval – characterisation of use – whether development for restaurant or take-away food shop – where dual use co-existed – appeal allowed
STATUTORY INTERPRETATION – Proper characterisation of the term ‘use’ in the planning context – whether characterisation of ‘use’ is a jurisdictional fact

Talent v Official Trustee in Bankruptcy [2019] ACTSC 274
Uploaded 3 October 2019
PRACTICE AND PROCEDURE – Cross-vesting legislation – application to transfer proceedings to the Federal Court – Family Provision Act claim – bankruptcy issue –  whether the claim should be split to have the bankruptcy issue determined by the Federal Court – whether “special reasons” exist to allow the bankruptcy issue to be determined by the Supreme Court

R v Gordon (No 2) [2019] ACTSC 254 (SCC 139 of 2019; SCC 321 of 2017)
Uploaded 3 October 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possess prohibited substance – intentional wounding – aggravated robbery – close relationship between charges – offending in breach of good behaviour orders including suspended sentences – offender with serious criminal history – offender’s previous opportunities for rehabilitation not embraced – sentences of imprisonment – suspended sentences imposed

Davis v Stephens [2019] ACTSC 271
Uploaded 1 October 2019
CRIMINAL LAW – APPEAL – Appeal against conviction and sentence – common assault and assault occasioning actual bodily harm – whether the Magistrate erred by failing to properly direct herself on the law of self-defence – whether the Magistrate erred by returning inconsistent verdicts – whether the recording of convictions constitutes a manifestly excessive sentence – appeal dismissed

Ryan v Australian College of Mental Health Nurses Incorporated [2019] ACTSC 268
Uploaded 1 October 2019
PRACTICE AND PROCEDURE – Application for the continuation of an injunction – employment law – whether an injunction restraining the board from terminating the employment of its CEO should remain in place – whether there is a serious question to be tried – whether damages are an appropriate remedy – whether the balance of convenience favours the continuation of the injunction

Singh v Kaur [2019] ACTSC 270
Uploaded 1 October 2019
PRACTICE AND PROCEDURE – APPEAL – Application to strike out appeal – where the Magistrate dismissed an application for a protection order under s 53 of the Family Violence Act 2016 (ACT) – where s 92 of the Act prevents a decision made under s 53 of the Act from being appealed – appeal struck out

Black v Lawrence [2019] ACTSC 266
Uploaded 30 September 2019
CRIMINAL LAW – APPEAL – Appeal against conviction – common assault – where it is claimed that the guilty findings of the Magistrate were unsafe and unsatisfactory – appeal dismissed

R v McConnell-Imbriotis [2019] ACTSC 267 (SCC 12 of 2019; SCC 13 of 2019; SCC 119 of 2019; SCC 149 of 2019)
Uploaded 30 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drugs other than cannabis – unauthorised possession of ammunition – possession of a knife in a public place – unlawful possession of a firearm – possession of a prohibited weapon – dealing with proceeds of crime – where offender at a crossroads – where assessed as suitable for an intensive corrections order

Cobanov & Anor v Josifovski [2019] ACTSC 269
Uploaded 27 September 2019
DUTY APPLICATION – Application by the first and second plaintiffs to serve expert report on the defendant – whether leave should be granted – whether exceptional circumstances exist

Mannall v Howard (No 3) [2019] ACTSC 260
Uploaded 27 September 2019
COSTS – APPLICATION FOR SPECIAL COSTS ORDER – Second defendant ran argument that had been previously unsuccessful in other proceedings –  leave granted to file an amended defence – argument that was ultimately successful only arose in the amended defence – Calderbank offers did not relate to the ultimate arguments advanced at hearing COSTS – APPLICATION FOR SPECIAL COSTS ORDER – Where insurer denied liability leading the insured to defend a claim – claim for contribution or indemnity under r 319 of Court Procedures Rules 2006 (ACT) – claim for indemnity arising under an insurer’s obligation to indemnify in s 21 of the Road Transport (Third Party Insurance) Act 2008 (ACT) – costs to be paid on an indemnity basis

Head v Evans [2019] ACTSC 255
Uploaded 27 September 2019
CRIMINAL LAW – APPEAL AGAINST CONVICTION – Appeal from Magistrates Court – Charge of assault by police officers – police officers stop vehicle – questioning of driver interrupted by passenger – passenger told to produce identification – told “Alright get out of the car I’ll be searching you for being a smart arse” – passenger forcefully arrested – whether arrest lawful – it was not – appeal dismissed

Amos v McCarron (No 3) [2019] ACTSC 223 (SCA 86 of 2013)
Uploaded 24 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – resentence – breach of good behaviour order – offender taking steps towards drug and alcohol rehabilitation – whether suspended sentence should be imposed – resentence

R v Longmore (No 2) [2019] ACTSC 265 (SCC 67 of 2018; SCC 68 of 2018; SCC 70 of 2018; SCC 183 of 2019; SCC 184 of 2019)
Uploaded 24 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – arson – driving while disqualified – burglary – theft – obtain property by deception - drive motor vehicle without consent – take motor vehicle without authority - make off without payment – damage property - breach of Good Behaviour Orders

R v Kumar [2019] ACTSC 263 (SCC 88 of 2019; SCC 89 of 2019; SCC 96 of 2019; SCC 97 of 2019)
Uploaded 23 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Interference with a conveyance in circumstances dangerous to health, safety, or physical well-being – Illicit substances – Reduction of culpability

UQ v The Queen [2019] ACTCA 23
Uploaded 23 September 2019
APPEAL – APPEAL AGAINST CONVICTION – Jury direction – Where the accused was charged with multiple sexual offences involving several complainants – Where the complainants were cross-examined about whether they had motive to lie – Whether the prosecution invited the jury to speculate about whether the complainants had motive to lie – Whether the trial judge failed to give appropriate direction about onus of proof regarding alleged motive to lie – Whether substantial miscarriage of justice.

R v Mathews [2019] ACTSC 262 (SCC 159 of 2018; SCC 160 of 2018; SCC 133 of 2019)
Uploaded 23 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of prohibited substance for the purposes of sale or supply – possession of a drug of dependence – driving a motor with prescribed drug in blood – where assessed as unsuitable for an intensive corrections order – whether an intensive corrections order should nevertheless be made – section 29(1)(b) of the Crimes (Sentencing) Act 2005 (ACT)

In the Estate of Joan Gwen Talent deceased [2019] ACTSC 261
Uploaded 19 September 2019
COSTS – Whether the first respondent should pay the cost of the Application in Proceeding – where applicant was granted orders sought – where attempts were made by the applicant prior to hearing to resolve dispute by way of an undertaking – first respondent to pay the applicant’s costs of the application

R v Featherstone (No 2) [2019] ACTSC 258
Uploaded 19 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, indictment or presentment – charge committed for sentence following plea of guilty included in indictment – Crown indicates intention to file notice declining to proceed on charge in indictment – parties proceed on basis that charge committed for sentence intended to be subject to notice declining to proceed – sentence imposed on charge – whether sentence “contrary to law” for purposes of s 61 Crimes (Sentencing) Act 2005 (ACT)CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Committal to Supreme Court – s 90A of the Magistrates Court Act 1930 (ACT) – where offender committed to Supreme Court for sentence after a plea of guilty – whether offender needed to confirm adherence to a plea of guilty to be sentenced in Supreme Court – effect of s 90A(8) of Magistrates Court Act 1930 (ACT)

Dent v Burke (No 2) [2019] ACTSC 259
Uploaded 18 September 2019
COSTS – APPLICATION FOR SPECIAL COSTS ORDER – where plaintiff unsuccessful on hearing of separate question – where determination of separate question determined the whole of the proceedings – where defendant seeks confirmation of order that plaintiff pays costs on party and party basis

R v Winters [2019] ACTSC 245 (SCC 237 of 2018; SCC 140 of 2019)
Uploaded 16 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – assault occasioning actual bodily harm – principles of parity – where one offence committed in custody – prospects of rehabilitation

R v Kalachoff (No 3) [2019] ACTSC 257 (SCC 225 of 2016; SCC 226 of 2016)
Uploaded 16 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – Accused found Not Guilty by jury of Assault occasioning actual bodily harm – accused found Guilty of statutory alternative of common assault

In the matter of the adoption of CD [2019] ACTSC 256
Uploaded 13 September 2019
ADOPTION – Application to dispense with consent of birth parents – whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – whether declaration required regarding the need to dispense with the father’s consent – declaration regarding the father not required – where dispensation of the birth mother’s consent considered – consent dispensed with PRACTICE AND PROCEDURE – Whether service requirements complied with ¬– where all reasonable steps taken to serve the Application on the birth mother

Middleton v Director of Public Prosecutions [2019] ACTCA 24 Uploaded 10 September 2019
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – application for leave to appeal out of time – fresh evidence – where evidence of the extent of applicant’s medical condition not before the sentencing judge – where explanation for delay – whether possible miscarriage of justice had occurred – leave granted

R v Figura (No 1) [2019] ACTSC 149 (SCC 69 of 2019; SCC 132 of 2019)
Uploaded 9 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – property damage by joint commission – trespass – theft by joint commission – driving a motor vehicle without consent – dishonestly taking a motor vehicle without consent – prior criminal history of less serious offences – assessed as suitable to participate in residential rehabilitation program – preparation of an intensive correction order assessment report ordered

R v Graham (No 3) [2019] ACTSC 224 (SCC 294 of 2016; SCC 295 of 2016)
Uploaded 9 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – breach of good behaviour order – offender returned to old lifestyle of associating with criminals – offender recognises own need for rehabilitation – suspended sentence imposed

Hughes v Sangster (No 2) [2019] ACTSC 202
Uploaded 9 September 2019
PROCEDURE – COSTS – Calderbank offer by plaintiff rejected – subsequent offers also rejected – defendant’s rejection of offers unreasonable – defendant to pay plaintiff’s costs on a solicitor and client basis from the date the Calderbank offer was made – quarantining of the proceeds of the sale of a house to which the defendant would otherwise be entitled to in order to preserve the defendant’s costs obligations.

Kempster v Healthscope Operations Pty Ltd [2019] ACTSC 248
Uploaded 6 September 2019
NEGLIGENCE – Medical negligence claim – plaintiff alleges negligent administration of heparin injection caused nerve damage to left thigh post-surgery – whether injection administered in accordance with standard procedure – whether an alternative cause for the plaintiff’s nerve injury – Damages – General damages – out of pocket expenses – loss of earning capacity – Griffiths v Kerkemeyer – loss of superannuation

Ezekiel-Hart v Reis (No 3) [2019] ACTSC 250
Uploaded 6 September 2019
COSTS – Indemnity costs  – where plaintiff wholly unsuccessful in his claim – where defamation claim statute-barred – where pleadings were defective – where plaintiff given notice of limitation period issue by defendants prior to the hearing – where good defences – where plaintiff notified of defendants’ intention to seek indemnity costs prior to the hearing should the issues raised not be addressed

Dimitrov v Campbell [2019] ACTSC 253
Uploaded 6 September 2019
PERSONAL INJURY – DAMAGES – Assessment of damages – Compromise – Approval of settlement sum – motor vehicle accident – severe brain injuries suffered by the plaintiff

R v Marsh [2019] ACTSC 251 (SCC 4 of 2016)
Uploaded 5 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Indecent assault on male – guilty pleas – Historical child sexual offences – Crimes Act 1900 (ACT) s 81 as at 1979 and 1980
SENTENCING – Subjective circumstances of offender – 73 years of age – poor health – no relevant criminal history – effect of custodial setting on offender

Bird v Biedrzycki (No 2) [2019] ACTSC 247
Uploaded 3 September 2019
APPEAL – GENERAL PRINCIPLES – Costs – Indemnity costs – Calderbank offer – judicial discretion with respect to disposition of costs – set off between monetary orders

R v Negah [2019] ACTSC 243 (SCC 62 of 2019)
Uploaded 2 September 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – criminal history – where offender was on conditional liberty – where amount of illicit substance was substantial

Williams v Connor [2019] ACTSC 184
Uploaded 2 September 2019
APPEAL – APPEAL AGAINST SENTENCE – Whether sentence was manifestly excessive – it was not – whether the magistrate set a non-parole period calculated by reference solely to or primarily to the proportion on the existing sentence – he did not

Moir v I.C. Formwork Services Pty Limited [2019] ACTSC 246
Uploaded 2 September 2019
NEGLIGENCE – WORKERS COMPENSATION – Personal Injury – Back injury sustained by plaintiff – Territory or State of connection – whether or not the plaintiff usually worked within the Australian Capital Territory

R v Campbell (No 4) [2019] ACTSC 240 (SCC 124 of 2019)
Uploaded 30 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach family violence order – use of a prohibited weapon – attempted aggravated robbery – assault occasioning actual bodily harm – wounding – significant criminal history

Kumar v Love [2019] ACTSC 238
Uploaded 30 August 2019
CRIMINAL LAW – APPEAL – Appeal against convictions –whether the Magistrate’s decision was unsafe and unsatisfactory

Empire Global Pty Ltd v SA Expert Designs Pty Ltd [2019] ACTSC 244
Uploaded 30 August 2019
BUILDING AND CONSTRUCTION – SECURITY OF PAYMENT – Judicial review of adjudication decision – Whether additional work was performed under the subcontract – Whether the subcontract precluded payment for additional work performed without prior written instructions – Whether interpretation of the contract is a jurisdictional fact – Whether the present case is distinguishable from Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2019] ACTCA 15

Hoyle v Director-General Corrective Services [2019] ACTSC 226
Uploaded 30 August 2019
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Judicial review of Corrective Services’ decisions – plaintiff serving sentence for sexual offences – plaintiff assessed as at medium to high risk of reoffending – sentencing judge previously assessed plaintiff as at low risk of reoffending – whether use of Static 99 assessment tool involves a reviewable error – whether spent convictions may be considered in completing Static 99 assessment – whether the assessment was in contempt of sentencing judge’s decision – whether there is a legislative basis for the Adult Sexual Offenders Program – whether plaintiff was unlawfully required to complete the program prior to becoming eligible for parole – proceedings dismissed

R v Millard [2019] ACTSC 221 (SCC 241 of 2018; SCC 242 of 2018)
Uploaded 30 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – causing grievous bodily harm – pleas of guilty – substantial criminal history – need for particular emphasis on personal deterrence and protection of the community – long history of polysubstance use

R v EP (No 3) [2019] ACTSC 242 (SCC 197 of 2018; SCC 198 of 2018)
Uploaded 30 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to menace, harass or cause offence – threatening to distribute an intimate image – acts of indecency – sexual assault in the third degree – stalking – where domestic violence context – where no relevant criminal history

R v Bloxsome [2019] ACTSC 217 (SCC 184 of 2018)
Uploaded 28 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – intentional wounding – forcible confinement – sexual intercourse without consent – aggravated robbery – take a motor vehicle – aggravated burglary – damaging property – sentencing of co accused – offender played lesser role in offences – sexual assault occurred during forcible confinement – extensive criminal history

Williams v IM [2019] ACTSC 234
Uploaded 28 August 2019
CRIMINAL LAW – CRIMINAL RESPONSIBILITY – Criminal responsibility of children aged between 10 and 14 – Criminal Code 2002 (ACT) s 26 – Where the child entered pleas of guilty – Where the magistrate accepted the plea – Whether prosecution must discharge “the presumption of doli incapax” – Whether prosecution’s legal burden discharged by plea of guilty

Kostov v The Society of St. Vincent de Paul Pty Limited (No 2) [2019] ACTSC 232
uploaded 28 August 2019
PRACTICE AND PROCEDURE – Application for summary judgment – strike out

Kostov v Society of St Vincent de Paul Pty Limited [2019] ACTSC 239
Uploaded 28 August 2019
DUTY APPLICATION – Urgent application by the Plaintiff to stay judgment being delivered in substantive matter pending outcome of recusal application of that presiding judge – denial of procedural fairness – whether or not delivery of judgment should be stayed pending outcome of recusal application

R v Ralston [2019] ACTSC 236 (SCC 250 of 2018)
Uploaded 28 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use of a carriage service to groom person under 16 years of age – Instagram messages – suspended sentence – recognisance release order

R v BC [2019] ACTSC 233 (SCC 71 of 2019; SCC 72 of 2019)
Uploaded 27 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – possession of a drug of dependence – where extensive criminal history – where offences committed on parole – where burglary of non-residential part of premises – where history of childhood sexual abuse – principles of parity

BG v Young [2019] ACTSC 230
Uploaded 27 August 2019
APPEAL – APPEAL AGAINST SENTENCE – Where the appellant was a young person at the time of the offending – Where the Magistrates Court imposed a sentence of six weeks’ imprisonment for common assault – Whether the sentence is manifestly excessive.

R v Ayling [2019] ACTSC 229 (SCC 142 of 2019)
Uploaded 27 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Aggravated burglary in company – Theft – Where planning was rudimentary – Where the offender has reasonable prospects of rehabilitation – Where the offender is in breach of good behaviour orders – Where intensive corrections order is inappropriate.

R v Serena [2019] ACTSC 231 (SCC 27 of 2019)
Uploaded 26 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – carjacking – use of an offensive weapon – plea of guilty – Knife – whether or not offender is suitable for an Intensive Corrections Order (ICO) – assessed as not suitable – whether or not ICO should be imposed – unusual circumstances – ICO imposed

R v Cole [2019] ACTSC 228 (SCC 123 of 2019)
Uploaded 23 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Money laundering – Possession of drug of dependence for sale – Possession of prohibited weapon – High objective seriousness – Where the offender has good prospect of rehabilitation – Whether fulltime custody required.

Morales v Faccin and Wiseman (No 2) [2019] ACTSC 227
Uploaded 23 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of good behaviour order – Where good behaviour orders from both Supreme Court and Magistrates Court are breached – Where the breach offences are similar to the original offences – Where the offender has strong rehabilitation prospects

Clifton v Duong [2019] ACTCA 22
Uploaded 21 August 2019
APPEAL – APPREHENDED BIAS – Where shortly before delivery of judgment the primary judge directly emailed the prosecutors without copying in the appellant’s counsel – Where the communication concerns the difficulty in viewing the CCTV evidence on computer – Where the appellant’s counsel was eventually copied into the chain of emails – Whether the communication gave rise to apprehended bias – Whether failure to object amounts to waiver APPEAL – NATURE OF APPEAL – Appeal from appellate decision – Whether it was open to the primary judge to find that it was open to the magistrate to return a guilty verdict – Whether a fresh attack on the original decision

R v Fairclough [2019] ACTSC 215
Uploaded 19 August 2019
CRIMINAL LAW – Application to withdraw plea of guilty – whether the plea demonstrated a consciousness of guilt – whether the applicant had a sufficient knowledge of the relevant facts and law – consideration of Gee v Hulbert & Ors [2002] ACTSC 118

R v Smith [2019] ACTSC 196 (SCC 125 of 2019; SCC 126 of 2019)
Uploaded 19 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – importing border controlled drugs – attempting to possess border controlled drugs – where the ‘dark web’ is used to import border controlled drugs –  cultivation of two cannabis plants – possessing a prohibited substance – possessing declared substances

Singh v Wilson [2019] ACTSC 199
Uploaded 19 August 2019
APPEAL – APPEAL AGAINST SENTENCE – Appellant convicted of minor theft in Magistrates Court – whether magistrate failed to take into account the appellant’s one night in custody – where counsel before the magistrate did not make submissions on the night in custody – whether the court is deemed to be aware of all factual matters derived from the contents of bench sheets – whether the magistrate should have exercised discretion under s 17 Crimes (Sentencing) Act (2005) to account for the appellant’s mental illness – where counsel before the magistrate did not rely on the Verdins principles

Whithear v Australian Capital Territory (No 2) [2019] ACTSC 220
Uploaded 19 August 2019
COSTS – Where application for preliminary discovery previously determined – where the applicant was partially successful

The Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2
Uploaded 16 August 2019
LEGAL PRACTITIONERS – Complaints and discipline – dishonest conduct – application to remove practitioner from the roll of practitioners following ACAT recommendation – whether defendant is a fit and proper person – practitioner’s name removed from local roll

R v Stacker [2019] ACTSC 219 (SCC 152 of 2018; SCC 262 of 2018; SCC 110 of 2019)
Uploaded 15 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – weapon offences –firearm – burglary – damage property – pleas of guilty

Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207
Uploaded 14 August 2019
TORTS – NEGLIGENCE – Workplace injury – Fall on ice – Injury to left wrist – Employer’s liability – Standard of care – Extent to which regulations inform duty of care – Breach of duty – Causation – Maintaining a safe system of work – Reasonably foreseeable risk of injury to employee when ice on the floor – whether employee guilty of contributory negligence – held employee was not contributory negligent
TORTS – NEGLIGENCE – Workers’ compensation – Incapacity – Admission of incapacity – whether implied from continued compensation
DAMAGES – Personal injury – General Damages – Non-economic loss – Loss of earning capacity – Future economic loss – Past out-of-pocket medical expenses – Future medical expenses – Past domestic care and assistance – Past gratuitous care – Future care and assistance – interest
COSTS – whether costs should follow the event

The Law Society of the Australian Capital Territory v Davey (No 2) [2019] ACTSC 216
Uploaded 13 August 2019
LEGAL PRACTITIONERS – Application in proceeding – Application to restrain plaintiff’s solicitor from further acting – conflicts of interest – duties owed to current and former clients – EVIDENCE – Witnesses – Witness required for cross-examination – Application to dispense with the attendance of witness for cross-examination – witness overseas

Haider v Gudelj [2019] ACTSC 213
Uploaded 13 August 2019
BANK GUARANTEES – DEBT – ballot conducted for the purchase of blocks of land – plaintiff used names of defendants to acquire multiple blocks – purchase monies provided by NAB – failure to repay monies – principle of equitable contribution between guarantors

Bird v Biedrzycki [2019] ACTSC 214
Uploaded 13 August 2019 
APPEAL – GENERAL PRINCIPLES – Appeal against order of Magistrates Court – Appeal to set aside order of compensation – Assessment of damages – cost of replacing missing items

R v Eichmann [2019] ACTSC 212 (SCC 14 of 2019; SCC 15 of 2019)
Uploaded 12 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Drive motor vehicle without consent – Aggravated dangerous driving – Drug driving – Fail to stop for police – Trespass – Offender has limited criminal history and strong prospects for rehabilitation – Whether intensive corrections order is appropriate

R v Chancellor [2019] ACTSC 191 (SCC 207 of 2018)
Uploaded 12 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – negligent driving occasioning death – where the offender was an on-duty police officer – offender of exceptionally good character – where general deterrence is a significant consideration – suspended sentence imposed

R v Rowe [2019] ACTSC 210 (SCC 94 of 2019; SCC 113 of 2019)
Uploaded 9 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by joint commission – related charges of driving a motor vehicle without consent and driving unlicensed

R v EC [2019] ACTSC 211 (SCC 277 of 2018)
Uploaded 9 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment –Sentence – act of indecency with young person under 16 years – plea of guilty – offender found not guilty by jury of incest and production of child pornography – no element of sexual gratification

Pidcock v Milosis [2019] ACTSC 209
Uploaded 9 August 2019
NEGLIGENCE – CAUSATION – Where the plaintiff was involved in motor vehicle accident – Where the plaintiff was asymptomatic prior to the accident – Where the plaintiff developed Achilles tendon symptoms after the accident – Whether the motor vehicle accident caused the symptoms
DAMAGES – PERSONAL INJURY – Assessment of damages – Non-economic loss – Future economic loss – Past out of pocket expenses – Future out of pocket expenses – Griffiths v Kerkemeyer damages

R v Inder [2019] ACTSC 208 (SCC 104 of 2019; 105 of 2019)
Uploaded 8 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drive motor vehicle without consent – Ride motor vehicle without consent – arson vehicle – joint commission damage property – pleas of guilty – mental health concerns for offender

Schwalm v The Queen [2019] ACTCA 20
Uploaded 8 August 2019
CRIMINAL LAW – APPEAL – Appeal against sentence – whether the sentence imposed was manifestly excessive – fresh evidence – appeal dismissed

Meyers v Commissioner for Social Housing [2019] ACTCA 19
Uploaded 7 August 2019
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against decision of a single judge – Appellant mauled during dog attack at public housing complex – Duty of Care – occupier of land – statutory power to seize dogs – appeal dismisse

R v Khoder [2019] ACTSC 204 (SCC 146 of 2019)
Uploaded 7 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Traffic in controlled drug other than cannabis – guilty plea – prospects for rehabilitation

Bekteshi v Yanxin [2019] ACTSC 203
Uploaded 7 August 2019
COSTS – Whether the respondents should pay the costs of the Originating Application – where there were delays in responding to requests for a compulsory conference –  where the applicant failed to attend medicolegal appointments

The Law Society of the Australian Capital Territory v Davey [2019] ACTSC 206
Uploaded 7 August 2019
LEGAL PRACTITIONERS – Complaints and discipline – Fraud – breach of Solicitor Conduct Rules and Undertakings – application to remove practitioner from the roll of practitioners following ACAT recommendation – whether defendant is a fit and proper person CIVIL PROCEDURE – Application in proceeding – Application to set aside Notice to Produce – abuse of process – re-litigation of previously litigated issues  – costs sought on an indemnity basis

R v Mathews [2019] ACTSC 151
Uploaded 2 August 2019
CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – vehicle seizure by police without authority – drugs found – content of “reasonable suspicion” – police powers relating to search and seizure – whether evidence should be admitted despite unlawful seizure – where evidence obtained in evidence not inadmissible

Glass v ACTPLA [2019] ACTSC 201
Uploaded 2 August 2019
ADMINISTRATIVE LAW – Appeals from Administrative Authorities – application for leave to appeal to the Supreme Court from ACAT review of planning approval – leave refuse

ACT v Gillan; Gillan v ACT [2019] ACTSC 200
Uploaded 2 August 2019
PROCEDURE – COSTS – plaintiff’s claim of medical negligence by defendant based on defendant’s failure to offer alternative treatments for ruptured Achilles tendon – Calderbank offer by plaintiff in Magistrates Court rejected – plaintiff’s damages in Magistrates Court lower than amount offered in Calderbank offer – Supreme Court appeal by defendant and cross-appeal by plaintiff –  plaintiff’s damages on appeal higher than amount offered in Calderbank offer – whether defendant’s rejection of Calderbank offer reasonable – rejection based on defendant’s misunderstanding of plaintiff’s case and misapplication of medical literature about consequences of alternative treatments –misunderstanding of plaintiff’s case maintained despite detailed explanations of plaintiff’s case – misunderstanding of plaintiff’s case maintained in Supreme Court appeals – defendant to pay plaintiff’s Magistrates Court costs on indemnity basis – defendant to pay plaintiff’s costs of defendant’s Supreme Court appeal on indemnity basis – defendant to pay plaintiff’s costs of plaintiff’s Supreme Court cross-appeal on ordinary basis.

Faris v Faris; Faris v Sims [2019] ACTCA 18
Uploaded 2 August 2019
APPEALS – Application for leave to appeal from interlocutory judgment – Motor Vehicle Accident – Two separate accidents – overlapping injuries – consolidating proceedings – fresh evidence – interests of justice – application refused

R v Bobbine [2019] ACTSC 133 (SCC 81 of 2018)
Uploaded 1 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – make a demand with threat – aggravated robbery –  actual use of force against victim – disparity in age and size between victim and offender – sentencing of four co-offenders – intimidatory effect of co offenders in a group – offending conduct recorded – good prospects of rehabilitation – sentences fully suspended – imposition of good behaviour order – reparation orde

R v UB [2019] ACTSC 134 (SCC 111 of 2018; SCC 135 of 2018)
Uploaded 1 August 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – make a demand with threat – aggravated robbery –  actual use of force against victim – sentencing of four co-offenders – intimidatory effect of co offenders in a group – offender a young person at the time of the offence – sentences fully suspended – imposition of good behaviour order

R v Westbrook [2019] ACTSC 135 (SCC 176 of 2018)
Uploaded 31 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aiding or abetting an aggravated robbery – actual use of force against victim – sentencing of four co-offenders – intimidatory effect of co offenders in a group – less culpable offending conduct – offender on conditional liberty at the time of the offending – guarded prospects for rehabilitation – sentence fully suspended – imposition of good behaviour orde

Barron v Laverty [2019] ACTSC 198
Uploaded 31 July 2019
APPEAL – APPEAL AGAINST SENTENCE – When the appellant committed multiple family violence offences – When the sentencing magistrate accumulated the sentence for five of the six offences – Whether the total sentence was manifestly excessive by reason of the accumulation – Whether the non-parole period was manifestly excessive – Whether the sentencing magistrate erred in applying an incorrect maximum penalty
SENTENCING – STATUTORY INTERPRETATION – Suspended Sentence – Where the appellant breached the good behaviour order attached to a suspended sentence – Crimes (Sentence Administration) Act 2005 (ACT) s 110(2) – Difference between “impose the suspended sentence” under s 110(2)(a) and “re-sentence” under s 110(2)(b) – Whether the court may re-sentence an offender to a sentence more severe than the original sentence – Right not to be punished more than once – Human Rights Act 2004 (ACT) s 24 – Whether the sentencing court afforded the appellant procedural fairness

R v Chute [2019] ACTSC 197
Uploaded 31 July 2019
EVIDENCE – FITNESS TO PLEAD – Accused found unfit to plead in earlier proceedings – accused remains unfit to plead – accused is unlikely to become fit to plead within 12 months – ACT Civil and Administrative Tribunal directed to appoint a guardian – guardian empowered to make an election under s 316(2) Crimes Act 1900 (ACT) EVIDENCE – SUBPOENAS – Disclosure of protected confidences –  whether there is a legitimate forensic purpose under s 79F Evidence (Miscellaneous Provisions) Act 1991 (ACT) – when evidence ‘would materially assist the applicant’s case’ under s 79F(2)(b)

Vogel v Broomhall [2019] ACTSC 194
Uploaded 30 July 2019
CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against verdict – Whether verdict is unreasonable and cannot be supported by the evidence – Inconsistent and illogical evidence – Inconsistent verdicts – Unlawfulness of arrest

Whithear v Australian Capital Territory [2019] ACTSC 195
Uploaded 30 July 2019
PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for documents to be provided pursuant to s 68(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) – application for documents to be provided pursuant to r 651 of the Court Procedures Rules 2006 (ACT) – whether the documents sought are “about the accident” – whether the documents sought will assist in determining whether to commence proceedings

Hughes v Sangster [2019] ACTSC 178
Uploaded 29 July 2019
EQUITY – JOINT TENANCY – Severance – property purchased as joint tenants by mother and daughter – Agreement or understanding that each would contribute $190,000 – daughter contributes $20,000 – whether agreement or understanding varied so that amount of $125,000 is be deducted from required contribution or so that contributions to household reduced required contributions – constructive trust imposed on daughter’s interest in property.

Ezekiel-Hart v Reis (No 2) [2019] ACTSC 192
Uploaded 25 July 2019
PRACTICE AND PROCEDURE – SUMMARY JUDGMENT – Whether defamation claim made in time and maintainable – whether Human Rights Act 2004 (ACT) claim made in time and maintainable – where the defamation claim is statute-barred  – where the Human Rights Act claim is unsubstantiated  – where good defences are available
TORT – DEFAMATION ¬ – Whether memorandum attaching draft application circulated to Council of the Law Society of the ACT contained defamatory material  – whether the ACT Law Society is an “instrumentality” of the ACT Government – where good defences are available – where the claim is statute-barred
HUMAN RIGHTS – Whether the defendants’ conduct breached ss 8, 10, 12 and 17 of the Human Rights Act¬ – where the evidence relied-upon by the plaintiff fails to substantiate the claim

Ezekiel-Hart v Reis (Leave to Appeal) [2019] ACTSC 193
Uploaded 25 July 2019
APPEAL – Application for leave to appeal from ACAT – whether ground of substance to be argued – where the applicant failed to identify questions of law or fact in issue – application for leave dismissed
DISCRIMINATION – Whether the circumstances surrounding the decision not to grant a practicing certificate to the applicant were in breach of the Discrimination Act 1991 (ACT) – where the applicant failed to provide evidence to substantiate the claim

R v NX (No 2) [2019] ACTSC 131 (SCC 212 of 2018; SCC 216 of 2018; SCC 217 of 2018)
Uploaded 24 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – offender on conditional liberty at the time of offending – typical features of domestic violence – victim vulnerable due to presence of child – extensive criminal history – history of domestic violence offences – medium to high risk of general reoffending – high risk of sexual reoffending – plea of guilty entered during trial

R v O’Connor [2019] ACTSC 132 (SCC 91 of 2018)
Uploaded 24 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – make a demand with threat – aggravated robbery –  actual use of force against victim – disparity in age between victim and offender – sentencing of four co-offenders – intimidatory effect of co offenders in a group – offending conduct recorded – significant criminal history – sentences fully suspended – imposition of good behaviour order

SE v Ruhen [2019] ACTSC 190
Uploaded 22 July 2019
APPEAL – APPEAL TO SUPREME COURT – Application to adduce further evidence – Nature of appeal
APPEAL – APPEALS AGAINST SENTENCE – Common assault – Family violence – Whether recording of conviction is manifestly excessive

Mental Health Australia Ltd v Registrar, ACT Long Service Leave Authority [2019] ACTSC 188
Uploaded 19 July 2019
JUDICIAL REVIEW – PROCEDURAL FAIRNESS – Where decision made to deregister plaintiff as an employer under the Long Service Leave (Portable Schemes) Act 2009 (ACT) – where defendant subsequently required plaintiff to register again without any further application made by plaintiff – whether plaintiff notified of issue being considered by defendant before decision made – whether plaintiff afforded opportunity to be heard
JUDICIAL REVIEW – ERROR OF LAW – Whether plaintiff is an employer in the community service industry under the Long Service Leave (Portable Schemes) Act 2009 (ACT) – whether plaintiff directly engaged in the industry

R v Connelly-Hansen [2019] ACTSC 189 (SCC 233 of 2018; SCC 234 of 2018)
Uploaded 18 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency with young person – Possess child exploitation material – Guilty plea – Where offending is objectively serious – Where the offender was subject to substantial trauma in private and professional life – General deterrence – Rehabilitation and public protection.

Moss v Badke [2019] ACTSC 186
Uploaded 17 July 2019
PRACTICE AND PROCEDURE – COSTS – Application for adjournment – Where the plaintiff was incommunicado – Whether the plaintiff should pay the costs of the application and costs thrown away – Whether the plaintiff’s non-communication is related to his injury from the accident – Cost reserved

R v Conomos [2019] ACTSC 183 (SCC 183 of 2018)
Uploaded 16 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in methylamphetamine – Trafficking in a trafficable quantity of cannabis – Parity with co-offender – Where the offender has no criminal history – Where the offender has strong prospects of rehabilitation and mental health problems – Where an intensive corrections order is appropriate

R v Johnson [2019] ACTSC 179 (SCC 332 of 2017)
Uploaded 16 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – jury trial – re-trial – primary offence of recklessly inflict grievous bodily harm – offender found not guilty of primary offence but guilty of statutory alternative offence of inflict actual bodily harm
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – inflict actual bodily harm – consideration of harm suffered by the victim – broken jaw – whether or not injury suffered was grievous bodily harm

R v Hammer [2019] ACTSC 182 (SCC 16 of 2019)
Uploaded 16 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency upon a young person – Sexual intercourse with a young person – Significant breach of trust – Where the victim has an intellectual disability – Where the offender experienced traumatic child sexual abuses and other abuses – Where the offender suffered from various mental health issues and has an overall cognitive ability in the low average range – Personal deterrence – Rehabilitation – Recognition of harm – Whether an intensive corrections order is warranted.

Manny v David Lardner Lawyers [2019] ACTSC 176
Uploaded 12 July 2019
JUDICIAL REVIEW – Application by plaintiff to stay or dismiss application for judicial review – Court Procedures Rules 2006 (ACT) r 3566 – rights of appeal not exhausted – frivolous or vexatious claim – costs awarded against the plaintiff on ordinary basis

R v Sharp [2019] ACTSC 175 (SCC 1 of 2019)
Uploaded 12 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Intentionally and unlawfully discharging a firearm so as to cause another person reasonable apprehension for his or her safety – Cause damage to property – Unauthorised possession of firearm – Outlaw Motorcycle Gang – Victim impact – Extensive criminal history – Young age of offender – Subjective considerations include psychological factors.

Satchithanantham v Folkes [2019] ACTSC 165
Uploaded 11 July 2019
PRACTICE AND PROCEDURE – APPEAL – Appeal from interlocutory orders of Magistrates Court – interlocutory application in appeal proceedings – whether court has jurisdiction to hear appeal – it does not – appeal dismissed

M. M. International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd [2018] ACTCA 70
Uploaded 10 July 2019
APPEALS – Application for Leave to Appeal from Interlocutory Judgment – No appearance from applicant – whether proceedings should be adjourned – company in liquidation – whether application should be dismissed

M. M. International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd [2018] ACTSC 378
Uploaded 9 July 2019
APPEALS – Application in proceeding – application for costs payable by plaintiff to the defendants to be fixed – application that the Court release the security for costs to the defendants – applicant company in liquidation – costs incurred exceed amount currently held as security for costs

R v Todkill (No 2) [2018] ACTSC 380
Uploaded 9 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – finding of guilt after trial – statutory alternative to offence charged – offer to enter plea of guilty to statutory alternative before trial – high level of aggression – subject to conditional liberty – unenviable criminal history – consideration of subjective factors

R v Todkill [2018] ACTSC 379
Uploaded 9 July 2019
CRIMINAL LAW – JUDGE-ALONE TRIAL – Verdict - plea of not guilty – one count alleging assault occasioning actual bodily harm – plea of not guilty – statutory alternative of common assault – no evidence called by the accused – onus of proof on the Crown – consideration of evidence called by the Crown – whether there is reasonable doubt that the assault occasioned by the accused caused actual bodily harm

CTOG Pty Ltd v Turcic [2018] ACTSC 361
Uploaded 9 July 2019
CONTRACT LAW – EMPLOYMENT CONTRACT – Restraint of Trade Clause – Application for an interlocutory injunction – whether the plaintiff could demonstrate a legitimate protectable interest – whether damages would be an adequate remedy

R v Bennett [2019] ACTSC 152 (SCC 306 of 2018)
Uploaded 9 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly use a false document to dishonestly obtain a gain – no criminal history – excellent prospects for rehabilitation – not likely to reoffend

KIC v Tennant [2019] ACTSC 145
Uploaded 5 July 2019
CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court – appeal from the conviction and the sentence imposed by the magistrate – application to withdraw the appellant’s plea of guilty withdrawn  – consideration of appellant’s evidence – whether the sentence imposed by the magistrate was manifestly excessive

Polleycutt v Aldcroft [2019] ACTSC 174
Uploaded  5 July 2019
APPEAL – Appeal from Magistrates Court dismissing applications for personal protection orders – whether denial of procedural fairness – whether representation in Magistrates Court was a conflict of interest – whether magistrate failed to take into account contradictory evidence – appeals dismissed

Potts v The Queen [2019] ACTCA 17
Uploaded 5 July 2019
APPEAL – Application for leave to appeal out of time – issues raised by applicant – setting of time limits and the validity of the Court Procedures Rules 2006 (ACT) – whether an order was made by the trial judge from which an appeal may lie – whether a conviction was recorded for the purposes of the Court Procedures Rules 2006 (ACT) – the effect of the Human Rights Act 2004 (ACT) – consideration of the proposed grounds of appeal – self induced intoxication – verdict of guilty to statutory alternative

R v Carpenter; R v Carpenter [2019] ACTSC 169
Uploaded 4 July 2019
CRIMINAL LAW – EVIDENCE – Voir Dire – Evidence Act 2011 (ACT) s 137 – exclusion of prejudicial evidence – DNA evidence – challenge to DNA taken from vehicle involved in offence
CRIMINAL LAW – EVIDENCE – drive stolen motor vehicle without consent – vehicle located and tested approximately one month after offences took place – DNA taken from multiple surfaces with same swab – accused’s DNA found – whether or not DNA establishes accused as a driver or rider of the vehicle

R v Walker [2019] ACTSC 172 (SCC 31 of 2019)
Uploaded 4 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Possess child exploitation material – Use carriage service to solicit child pornography – Discount of sentence for guilty plea in  Commonwealth offences – Sentence of imprisonment – Whether it is appropriate to impose an intensive corrections order – Whether the time spent in custody adequately reflects the objective seriousness of the offending

R v Mason (No 2) [2019] ACTSC 173 (SCC 124 of 2014; SCC 125 of 2014)
Uploaded 4 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charges transferred from Magistrates Court in conjunction with charges on indictment – offender found not guilty of charges on indictment – offender found guilty of trespass and minor theft – offender pleaded guilty to possession of cannabis – all offences of low objective seriousness – disability and mental health considerations – good behaviour orders and recognisance release order

R v Walshe [2019] ACTSC 137 (SCC 54 of 2016)
Uploaded 4 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender convicted in the Magistrates Court of two offences –breach of Recognizance Release Order – serious nature of the offending – consideration of sentencing options under the Crimes Act 1914 (Cth)

R v Blundell [2019] ACTSC 42 (SCC 20 of 2018; SCC 21 of 2018; SCC 22 of 2018; SCC 36 of 2015; SCC 37 of 2015)
Uploaded 4 July 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – obtaining property by deception – attempting to obtain property by deception – pleas of guilty – subject to Good Behaviour Orders at the time of the commission of offences – re sentence – extensive criminal history – need to protect the community – general deterrence – rehabilitation not irrelevant

Australian Capital Territory v BJM Canberra Pty Ltd [2019] ACTSC 170
Uploaded 3 July 2019
CONTRACT – INTERPRETATION – Whether a clause of a deed permits a developer to charge for car parking required to be provided to ACT Policing – standing of the Australian Capital Territory – whether utility in granting relief – declaration made

Dent v Burke [2019] ACTSC 166
Uploaded 28 June 2019
DEFAMATION – Hearing of separate question – whether defamatory imputations conveyed by publication – television broadcast of interview with defendant – allegations of sexual and professional misconduct by the defendant – whether denial by the defendant of sexual misconduct during interview gave rise to imputation that plaintiff had lied or made false allegation to join a “witch-hunt” – interviewer sceptical of defendant’s denials – publication as a whole does not give rise to pleaded imputations

Dong v Song (No 4) [2019] ACTSC 168
Uploaded 27 June 2019
CONTEMPT OF COURT – what constitutes criminal contempt – where first defendant breached undertaking given to the Court not to sell a residential property – whether conduct amounts to contempt of a criminal nature

Bailey v Bottrill (No 2) [2019] ACTSC 167
Uploaded 27 June 2019
DEFAMATION – Publication – whether hyperlink to defamatory material and an accompanying text on a personal Facebook page amounts to publication – whether Tribunal applied correct test

R v Hurt [2019] ACTSC 148 (SCC 61 of 2019)
Uploaded 27 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – possession of child exploitation material and distribution of child pornography – early guilty pleas – no relevant criminal history –general deterrence – denunciation and specific deterrence – custodial sentence and recognizance release order

R v Clark [2019] ACTSC 147 (SCC 67 of 2019)
Uploaded 27 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled drug, namely cocaine and possessing a prohibited weapon – early pleas – no criminal history – general and specific deterrence and rehabilitation – custodial sentences served by way of intensive correction

R v Wright [2019] ACTSC 146 (SCC 229 of 2018)
Uploaded 27 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – assault occasioning actual bodily harm – unprovoked punch to the side of the victim’s facing resulting in multiple fractures of the cheek bone – limited criminal history – plea of guilty – personal circumstances of the offender considered – custodial sentence served by way of intensive correction

ACT Director of Public Prosecutions v Can [2019] ACTSC 164
Uploaded 27 June 2019
CRIMINAL LAW ¬ CONFISCATION OF CRIMINAL ASSETS – Meaning of “restricted access proceedings” in the Confiscation of Criminal Assets Act 2003 (ACT) – whether the order made by the primary judge to close the court and not issue notices to the defendant continued to apply to subsequent confiscation proceedings

R v Mason [2019] ACTSC 161
Uploaded 26 June 2019
CRIMINAL LAW – GENERAL MATTERS – Trial by judge alone – two charges of causing bushfires – analysis of physical and fault elements – offences of specific intent – mental impairment defence – nature of burden imposed on defence by form of ACT Criminal Code.
CRIMINAL LAW – GENERAL MATTERS – Trial by judge alone – two charges of causing bushfires – physical element of offences not made out beyond reasonable doubt – verdicts of not guilty.
CRIMINAL LAW – GENERAL MATTERS – Trial by judge alone – five charges transferred from Magistrates Court – two backup charges of lighting fires – physical element of offences not made out beyond reasonable doubt – charge of possessing knife in public – reasonable excuse for possession found – verdicts of not guilty on three charges – one charge each of trespass and theft – physical elements made out – mental impairment defence not established – verdicts of guilty on charges of trespass and theft.

Lewis v Australian Capital Territory [2019] ACTCA 16
Uploaded 25 June 2019
APPEAL – GENERAL PRINCIPLES – In general and right of appeal – Appeal against award of nominal damages – judgment awarded in the sum of $1.00
HUMAN RIGHTS – CIVIL AND POLITICAL RIGHTS  – unlawful imprisonment – unlawful cancellation of periodic detention order – 82 days in custody – principle of inevitability – whether or not it was inevitable that the appellant would be imprisoned
DAMAGES – PRINCIPLES OF DAMAGES – compensation and vindication – exemplary damages abandoned – vindicatory damages as a separate head of damages

R v Gunner [2018] ACTSC 372 (SCC 271 of 2017; SCC 276 of 2017)
Uploaded 21 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – charge of possess prohibited substance for purpose of sale/supply – charges of possession of property suspected of being proceeds of crime – charge of possessing drug of dependence – charge of possessing prohibited substance – charge of unlawful possession of stolen property – consideration of Pre-Sentence Report – consideration of Intensive Corrections Order assessment – consideration of objective seriousness of offences

Mannall v Howard [2019] ACTSC 112
Uploaded 21 June 2019
PRACTICE AND PROCEDURE – PLEADINGS – Application to file an Amended Defence – proposed amendment made late in proceedings – leave to make amendment granted

Mannall v Howard (No 2) [2019] ACTSC 113
Uploaded 21 June 2019
INSURANCE – COMPULSORY THIRD PARTY LIABILITY INSURANCE – Statutory interpretation – motor accident – whether compulsory third-party policy responds to the claim –whether accident was a motor accident within the meaning of Road Transport (Third Party Insurance) Act 2008 (ACT), s 7 – definition of “use or operation of a motor vehicle”
TORTS – NEGLIGENCE – Personal injury – plaintiff sues fellow employee of Territory for negligence – whether liability of fellow employee precluded by s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether Territory would have been liable for negligence of fellow employee – Territory would have been vicariously liable – s 44 precludes liability of fellow employee and hence liability of third party insurer
WORDS AND PHRASES – “in the course of employment” – whether employee in the course of employment so as to make employer vicariously liable for conduct when he has concluded work but is driving on employer’s premises

R v Nozhat (No 2) [2019] ACTSC 160 (SCC 27 of 2018)
Uploaded 21 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – importation of a commercial quantity of a border controlled drug – fault element under s 307.1 of the Criminal Code (Cth) of  recklessness – large quantity of drugs imported – offender had minor role in criminal enterprise – no criminal history – low risk of reoffending

R v Adams [2018] ACTSC 333 (SCC 81 of 2017)
Uploaded 20 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit communications to a person who was under the age of 16 years with the intention of procuring that person to engage in sexual activity – engaging in sexual intercourse with a person under the age of 16 years – pleas of guilty – defence to a charge under s 55(2) of the Crimes Act 1900 (ACT) that an accused believed on reasonable grounds that the person was of or above the age of 16 years – any matter of fact which makes an offence more serious must be proved to the standard of beyond reasonable doubt – any fact which tends to mitigate the offence must only be proved on balance of probabilities – wilful blindness – objective seriousness – sentencing considerations – subjective features – sentences of imprisonment imposed – non parole period

R v EP (No 2) [2019] ACTSC 156
Uploaded 20 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, indictment or presentment – severance of indictment – relationship evidence – whether relationship and context evidence cross-admissible – application refused

R v EP [2019] ACTSC 89
Uploaded 20 June 2019
CRIMINAL LAW – EVIDENCE – application for leave to cross-examine the complainant on prior sexual activities – operation of s 51(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – whether leave required
CRIMINAL LAW – EVIDENCE – admissibility of covert audio recordings – whether the recordings were unlawfully obtained – whether the complainant had objectively reasonable grounds for considering the recording to be necessary for the protection of her then existing lawful interests – recordings not unlawfully obtained pursuant to s 4(3)(b)(i) of the Listening Devices Act 1992 (ACT)

R v Dau Deng [2019] ACTSC 130 (SCC 93 of 2018)
Uploaded 19 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time for  aggravated robbery and ride in a stolen vehicle – offender knowingly concerned in aggravated robbery – offender assisted co-offender to escape from premises by threatening residents with a hammer – significant criminal history – punishment – deterrence – denunciation – hope for rehabilitation in light of his youth – custodial sentences

R v Johnstone (No 2) [2019] ACTSC 39 (SCC 162 of 2018)
Uploaded 19 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time for aggravated robbery and ride in a stolen vehicle – offender entered premises with a sawn-off gun, demanded money and struck two residents with the butt of the gun – assault occasioning actual bodily harm – transfer charge of common assault – very poor criminal history – general and specific deterrence – denunciation – hope for rehabilitation as offender still a young man – custodial sentences

Pesec v Consolidated Builders Limited (No 2) [2019] ACTSC 157
Uploaded 18 June 2019
COSTS – Where application for preliminary discovery previously determined – where success of plaintiff arose out of amended argument during hearing – plaintiff to pay majority of costs on application

R v Jabal [2019] ACTSC 158
Uploaded 18 June 2019
CRIMINAL LAW – BAIL – Application to vary bail conditions – Where the accused was charged of serious drug trafficking offences – Where the accused intends to visit Lebanon to care for a family member – Where there is no extradition treaty between Lebanon and Australia – Where the Australian Taxation Office has raised substantial taxation debt against the accused – Whether surety offered by the accused mitigates flight risk – Application refused

R v QU [2019] ACTSC 155 (SCC 254 of 2018)
Uploaded 17 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property and financial advantage by deception – delay – intensive corrections order

Sayeda Safina Alam v Australian Capital Territory [2019] ACTSC 153
Uploaded 17 June 2019
PRACTICE AND PROCEDURE – Application for leave to file expert evidence out of time – Rules 1205 and 1241 of Court Procedures Rules 2006 (ACT) – where expert report are not yet sought to be tendered – where matter not yet listed for hearing and no prejudice arising – application granted

R v Jacky [2019] ACTSC 123 (SCC 166 of 2017; SCC 169 of 2017)
Uploaded 15 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – plea of guilty – breach matters – transfer charge of driving while disqualified – consideration of s 69 of the Road Transport (General) Act 1999 (ACT) – poor criminal history – advances in addressing drug and alcohol abuse

R v Donald [2019] ACTSC 129 (SCC 251 of 2018)
Uploaded 14 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possessing child exploitation material – two charges of using a carriage service to access child pornography material – pleas of guilty – serious criminal offences – lower range of such offences – no prior convictions – prospects of rehabilitation appear to be good

R v Kennewell [2019] ACTSC 125 (SCC 235 of 2018; SCC 236 of 2018)
Uploaded 14 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – plea of guilty – need for specific deterrence – good prospects for rehabilitation

Williams v Hoang [2019] ACTSC 144
Uploaded 12 June 2019
PRACTICE & PROCEDURE – Settlement in respect of a person with a legal disability – arrangements for funds management – appointment of trustee – public trustee – proposed appointment of a trustee company

R v Butters [2019] ACTSC 143 (SCC 298 of 2018)
Uploaded 11 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – prospects of deportation – practicality of imposing an intensive corrections order – suspended sentence – good behaviour order

R v Cameron [2018] ACTSC 374 (SCC 95 of 2017)
Uploaded 7 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty in Magistrates Court – serious offence – aggravated robbery – participation in rehabilitation program

Hall v Russell [2018] ACTSC 377
Uploaded 7 June 2019
APPEAL – MAGISTRATES COURT APPEAL – Criminal Law - appeal from sentence imposed in Magistrates Court – whether sentence imposed in Magistrates Court was excessive

R v Boardman [2019] ACTSC 128 (SCC 244 of 2018; SCC 141 of 2016)
Uploaded 6 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – plea of guilty – on conditional liberty – resentence – substantial criminal history – drug abuse – need for specific deterrence – need to demonstrate the community’s disapproval of this type of offending behaviour

Martin v Abbott [2019] ACTSC 140
Uploaded 6 June 2019
CRIMINAL LAW – Magistrates Court Appeal – hearing in Magistrates Court – finding of guilt – appeal from finding of guilt – consideration of oral evidence before the magistrate – consideration of CCTV footage – whether the CCTV footage should have created reasonable doubt in the mind of the magistrate – whether the finding of guilt was unreasonable

Pesec v Consolidated Builders Limited [2019] ACTSC 142
Uploaded 6 June 2019
PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for discovery to identify right to claim relief and potential defences – whether an arguable cause of action exists

R v Holt [2018] ACTSC 376 (SCC 108 of 2018; SCC 109 of 2018; SCC 297 of 2018)
Uploaded 5 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in cannabis – possession of drug of dependence, namely methylamphetamine – late plea of guilty – significant criminal history – offences committed while on parole

Hargrave v Singh [2019] ACTSC 139
Uploaded 5 June 2019
PERSONAL INJURY – Pedestrian struck by taxi – taxi driven by first defendant – whether collision was caused by negligence of first defendant – whether plaintiff is guilty of contributory negligence – consideration of degree of intoxication of plaintiff – consideration of s 95 of the Civil Law (Wrongs) Act 2002 (ACT) – consideration of damages – consideration of the medical evidence

R v Merritt [2019] ACTSC 23 (SCC 45 of 2018)
Uploaded 5 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty – where offender at a ‘crossroads’ – intensive corrections order report

Follett v Mann [2019] ACTSC 141
Uploaded 4 June 2019
CRIMINAL LAW – APPEAL – Appeal against conviction – common assault – where arrest found to be unlawful under s 121 of the Casino Control Act 2006 (ACT) – where alternative source of power under s 218 of the Crimes Act 1900 (ACT) existed to arrest by way of “citizen’s arrest” – whether power to arrest impliedly requires element of necessity – whether appellant acted in self-defence – whether findings of guilt otherwise unsafe or unsatisfactory

Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2019] ACTCA 15
Uploaded 28 May 2019
APPEAL – BUILDING AND CONSTRUCTION – Adjudication of progress payment claim under Building and Construction Industry (Security of Payment) Act 2009 (ACT) – whether payment claim served within period required by s 15(4)(b) – some work within 12 month period, some outside – whether fact that work within 12 month period was work done under relevant construction contract was a jurisdictional fact or whether claim that the work had been done under the construction contract sufficient to enliven adjudicator’s jurisdiction –  whether primary judge erred in not determining the terms of a construction contract – operation of s 15(4) of the Building and Construction Industry (Security of Payment) Act 2009 (ACT)

R v Cowling [2019] ACTSC 138 (SCC 159 of 2017; SCC 160 of 2017)
Uploaded 23 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawful Confinement – Chokes, Suffocates or Strangles – Common Assault  - Rehabilitation - Intensive Corrections Order

ED v The Queen [2019] ACTCA 10
Uploaded 17 May 2019
APPEAL – CRIMINAL LAW – Appeal against conviction – whether jury verdict is unreasonable – where offender is found guilty on some counts and not guilty on others – different verdicts based on same evidence not inherently unreasonable – Court to have regard to evidence before jury in assessing doubt – where there is a logical explanation for the acquittals

R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90
Uploaded 17 May 2019
CRIMINAL LAW – PROCEDURE – application for separate trial – sexual assault allegations – previous application to sever dismissed – where refusal to sever leads to co-accused unable to elect for trial by judge alone trial – no prejudice in joint trial – application dismissed

Po’oi v The Queen [2019] ACTCA 13
Uploaded 17 May 2019
APPEAL – CRIMINAL LAW – Conviction appeal from ACT Supreme Court – whether guilty verdict was unreasonable because it was founded on same evidence and joint liability case as counts in which defendant found not guilty –  whether primary judge erred in directing jury as to recklessness – whether primary judge erred in not giving Markuleski and Murray directions

The Queen v Rappel [2019] ACTCA 11
Uploaded 17 May 2019
APPEAL – CRIMINAL LAW – Crown appeal against sentence – intentionally inflicting grievous bodily harm – whether sentence manifestly inadequate – whether primary judge erred in not giving reasons for imposing sentences concurrent with existing sentences – appeal allowed – respondent resentenced

R v BDI [2019] ACTSC 85
Uploaded 16 May 2019
CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – production and possession of child exploitation material – capturing visual data

Li & Anor v Wu [2019] ACTCA 14
Uploaded 16 May 2019
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal against primary judgment – good faith and solid foundation in derivative action

R v Jones [2019] ACTSC 124 (SCC 267 of 2018; SCC 268 of 2018; SCC 269 of 2018; SCC 270 of 2018)
Uploaded 15 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Maintaining a sexual relationship with a young person – Assault occasioning actual bodily harm – Attempt to pervert the course of justice

Bourne v Australian Capital Territory [2019] ACTSC 127
Uploaded 15 May 2019
REVIEW – GENERAL PRINCIPLES – Application for review of Magistrates Court decision – interstate transfer of prisoner – whether or not transfer of prisoner to New South Wales is in the interests of justice – whether or not transfer of prisoner is harsh or oppressive – application for review refused

R v Green (No 2) [2019] ACTSC 126
Uploaded 15 May 2019
CRIMINAL LAW – EVIDENCE – Admissibility  –  discretionary and mandatory exclusions of evidence – whether representation can be admitted under s 65(2)(c) of the Evidence Act 2011 (ACT) – where representation inconsistent with another representation

Greenwood v Irving [2019] ACTCA 12
Uploaded 15 May 2019
APPEAL – CRIMINAL LAW – In General and Right of Appeal – whether conspiracy between Court and Director of Public Prosecutions to pervert the course of justice –  whether failure to take into account relevant considerations – whether erroneous findings – circumstances of significant delay – appeal dismissed

R v Featherstone; R v Bloxsome [2019] ACTSC 66
Uploaded 14 May 2019
CRIMINAL LAW – Pre-trial application – co-accused – application for separate trials – opposed by the Crown – sexual assault matters relating only to one co-accused – unfair prejudice

R v Johnson [2019] ACTSC 117 (SCC 96 of 2018; SCC 97 of 2018; SCC 104 of 2018; SCC 105 of 2018)
Uploaded 13 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –firearms offences – unauthorised possession of firearms and ammunition – drug offences – trafficable quantity of cannabis – Intensive Corrections Order – deemed not suitable – term of imprisonment

Ismail v Tate [2019] ACTSC 92
Uploaded 13 May 2019
CRIMINAL LAW – Appeal – Appeal from Magistrates Court –whether the conviction was unsafe and unsatisfactory

R v Campbell (No 3) [2019] ACTSC 121
Uploaded 10 May 2019
CRIMINAL LAW - EVIDENCE – Judicial discretion to admit or exclude evidence – whether representations amounted to consciousness of guilt – whether evidence should nevertheless be excluded under s 137 of the Evidence Act 2011 (ACT)

R v Slifkas [2019] ACTSC 40 (SCC 25 of 2018; SCC 26 of 2018)
Uploaded 10 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery in company – offender involved in opportunistic robbery of person walking home at night – plea of guilty to theft of car – obtaining property by deception – limited criminal history – some prospects of rehabilitation – sentence of imprisonment to be served by intensive correction

R v Zonneveld [2019] ACTSC 122 (SCC 286 of 2016)
Uploaded 10 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspire to commit bestiality

R v Sikounnabouth [2019] ACTSC 119 (SCC 243 of 2018)
Uploaded 10 May 2019 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – accessory after the fact to murder – pleas of guilty

Dawson v The Queen [2019] ACTCA 9
Uploaded 8 May 2019
APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – Where the appellant was sentenced for two sets of offences – Degree of concurrency – Whether the sentencing judge failed to properly consider totality – Appellant resentenced

Chambers v Smorhun; R v Chambers [2019] ACTSC 118 (SCA 55 of 2018; SCC 101 of 2018)
Uploaded 8 May 2019
APPEAL – GENERAL PRINCIPLES – Appeal against sentence of Magistrates Court – manifest harsh and excessive – non-parole period 92 per cent of head sentence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – plea of guilty

Ramalingam v McCue [2019] ACTSC 114
Uploaded 8 May 2019
CRIMINAL LAW – APPEAL – Evidence – appeal against conviction – common assault and damage to property offences – whether Magistrate erred in admitting a non-related previous decision as relationship evidence – appeal granted and matter remitted to Magistrates Court

Liu v Milner [2019] ACTSC 115
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – appeal against sentence – whether sentence manifestly excessive

R v Hudson [2019] ACTSC 110 (SCC 41 of 2019; SCC 42 of 2019)
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use a carriage service to harass – Make demand accompanied by threat – Threat to inflict grievous bodily harm – Blackmail – Arson – Recklessly inflict actual bodily harm – Family violence – Lengthy criminal history – Additional offences whilst in custody – Continued association with antisocial peers – Whether the offender has a good prospect of rehabilitation – Whether reparation order should be made

R v Green [2019] ACTSC 87 (SCC 119 of 2018; SCC 120 of 2018)
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – causing grievous bodily harm – offender rides unregistered and uninsured electric bicycle along shared path and strikes child riding on path – child suffers serious injuries including brain injury – offender found guilty at trial – limited criminal history but criminal history does not fully reflect the history of offending behaviour – polysubstance abuse – history of sexual abuse – custodial sentence and fines

R v Morales [2019] ACTSC 88 (SCC 222 of 2018; SCC 223 of 2018; SCC 284 of 2018)
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time – attempted aggravated robbery of taxi driver at night while carrying a sheathed knife – dishonestly ride in a motor vehicle without consent – possess prohibited weapon – guilty pleas – young offender played less significant role to co-offender in offending conduct – criminal history – abuse of illicit drugs – parity considered – prospects of rehabilitation considered – sentence of imprisonment to be served by way of intensive correction

R v Muell [2019] ACTSC 77 (SCC 92 of 2018; SCC 238 of 2018)
Uploaded 7 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time – aggravated burglary of underground carpark of apartment complex where vehicle taken and motorbike stolen – aggravated burglary of Subway store – attempted aggravated robbery of taxi driver at night while carrying a handgun and knife – young offender with more significant role than co-offender in offending conduct – guilty pleas – poor criminal history – abuse of illicit drugs – parity considered – prospects of rehabilitation considered – general deterrence, punishment, denunciation and protection to the community – custodial sentences

R v Brown [2019] ACTSC 59 (SCC 125 of 2018; SCC 127 of 2018)
Uploaded 7 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled substance other than cannabis – possessing a prohibited substance – unauthorised possession of a prohibited weapon – unlawful possession of stolen property – additional offences taken into account

R v Norton [2019] ACTSC 111 (SCC 195 of 2018; SCC 196 of 2018)
Uploaded 6 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle without consent – plea of guilty

Owen v Owen [2019] ACTSC 108
Uploaded 6 May 2019
PRACTICE AND PROCEDURE – FREEZING ORDER – Where the Respondent is the judgment debtor in another court – Whether there is a danger that a judgment debt will go unsatisfied because of the disposal of assets – Whether balance of convenience favours the making of the order

R v Latu [2019] ACTSC 109 (SCC 193 of 2018; SCC 194 of 2018)
Uploaded 2 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Causing grievous bodily harm – Where the offence involves a one-punch assault – Where the offence was committed with a co-offender – Parity of sentence

R v Folauhola [2019] ACTSC 107 (SCC 307 of 2018; SCC 308 of 2018)
Uploaded 2 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – firearms offences - possession of prohibited firearms – additional offences – pleas of guilty – intensive corrections order

In the Estate of Koppie [2019] ACTSC 106
Uploaded 2 May 2019
SUCCESSION – WILLS – Section 31 of the Wills Act 1968 (ACT) – construction and effect of testamentary dispositions – child of testatrix predeceased leaving issue – whether statutory substitution of the surviving issue should be made – whether contrary intention apparent from words of the will or extrinsic evidence

Liu v A & A Martins Pty Limited [2019] ACTCA 8
Uploaded 2 May 2019
APPEAL – Appeal from decision of the ACT Supreme Court – claim for restitution based on unjust enrichment – whether the respondent was entitled to recover on restitutionary grounds – whether the respondent was doing work at the appellants’ request – whether Anshun estoppel could be raised – whether the claim was an abuse of process

R v Hawkins [2019] ACTSC 103 (SCC150B of 2018; SCC315 of 2018; SCC70 of 2019)
Uploaded 1 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – negligent driving inflicting grievous bodily harm – dishonestly driving a motor vehicle without consent – guilty pleas – disadvantaged background

R v Campbell (No 2) [2019] ACTSC 105
Uploaded 1 May 2019
EVIDENCE – Admissibility and Relevancy – Witnesses – hearsay – exception if maker unavailable  - s 65(2)(b) and (d) of the Evidence Act 2011 (ACT) – reliability of representations – representations of an accomplice