New Judgments and Sentences


Recent Court of Appeal, Supreme Court judgments and sentences:

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

Piscioneri v Malcolmson [2017] ACTSC 278
Uploaded 22 September 2017
PRACTICE AND PROCEDURE – Court Procedures Rules 2006 (ACT) r 1147 – Limitation Act (1985) s 21B – application for summary judgment – whether limitation period prevents claim from being pursued – summary judgment entered for defendant
In the Estate of Rummer [2017] ACTSC 277
Uploaded 22 September 2017
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – RECTIFICATION – construction and effect of testamentary disposition – whether gifts of amounts as directed to executor fail for uncertainty – whether rectification of will should be made so as to give effect to testator’s probable intention

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

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

R v Brogden [2017] ACTSC 267
Uploaded 21 September 2017
EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – application for exclusion of recorded statement by complainant – alleged failure to comply with the requirement that the recorded statement be conducted ‘as soon as practicable after the event’ – taking of evidence in sexual, violent and family violence proceedings – hearsay – audiovisual recording – requirements under Evidence (Miscellaneous Provisions) Act 1991 (ACT)
INTERPRETATION – General Rules of Construction of Instruments – offences may fall within definition of family violence and violent or sexual offence – differences in regimes under legislation – no manifest inconsistency between the provisions – complainant not obligated to participate in recorded statement – alternative pathways to admissibility – legislative objective – process of giving evidence easier for the complainant – fresh in complainant’s memory – obligation to make the recorded statement as soon as practicable is one which statute casts upon the police – recorded statement made as soon as practicable – applicant’s lawyer had reasonable opportunity to listen to or view recorded statement – in the interests of justice to admit the recorded statement  – application was refused

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

R v Pahl (No 2) [2017] ACTSC 155; SCC 279 of 2015; SCC 280 of 2015
Uploaded 28 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property offences – Recklessly cause damage to property – Burglary – Moral culpability of offender who offended while experiencing alcohol induced psychosis – Psychotic episode caused by voluntary consumption of alcohol – Whether sentence of imprisonment should be fully suspended – Claim for reparation order in favour of insurer

R v Thompson [2017] ACTSC 141; SCC 14 of 2017
Uploaded 27 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – aggravated robbery – offensive weapon – possessing an unregistered prohibited firearm – dishonestly driving motor vehicle without consent – pleas of guilty – lower prospects of rehabilitation than co-offender – punishment, deterrence and protection of the community – totality – terms of imprisonment imposed.

R v Miller [2017] ACTSC 150; SCC 251 of 2016; SCC 252 of 2016; SCC 272 of 2016; SCC 273 of 2016
Uploaded 27 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive-by shooting – trafficking – supply – giving false or misleading information – destroy potential CCTV evidence against the principal – accessory after the fact – prospects for rehabilitation – small steps taken – first intervention by the criminal process in offender’s life regarding drug trade activities – turning point.

R  v Wyatt (No 2) [2017] ACTSC 151
Uploaded 27 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – drug possession – fireworks explosion indoors – difficult beginning to life – disquieting fact that ice is available in Alexander Maconochie Centre – impressed by honesty of offender and sincerity in wishing to live a better and productive life – bail granted to undertake residential rehabilitation.

Korda v Aldi Foods Pty Ltd (No 2) [2017] ACTSC 153
Uploaded 27 June 2017
PROCEDURE – Costs – no question of principle.

Impedovo v Nolan (No 2) [2017] ACTSC 146
Uploaded 27 June 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Enforcement of debt – seizure and sale order in place in favour of judgment creditors – application by the judgment creditors to amend existing seizure and sale order – whether costs can be added to existing order
PROCEDURE – Supreme Court procedure – Court’s power to amend seizure and sale orders - Court’s inherent power to dispense with the rules of procedure

R v Thompson (No 3) [2017] ACTSC 53
Uploaded 26 June 2017
EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - Exclusion of improperly or illegally obtained evidence - probative value of evidence - importance of evidence in the proceedings - gravity of the impropriety - impropriety deliberate or reckless - difficulty in obtaining the evidence without impropriety - evidence in question not to be excluded - s 138 of the Evidence Act 2011 (ACT)

R v Stott (No 2) [2017] ACTSC 145
Uploaded 26 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Judge alone trial – trafficking in a controlled drug other than cannabis – circumstantial evidence.

Kelly v Hutcheon [2017] ACTSC 149
Uploaded 26 June 2017
APPEAL - CRIMINAL LAW - Appeal against conviction |whether nightclub security guard acting in own defence or defence of other staff and patrons - whether use of force excessive

R v Song (No 2) [2017] ACTSC 148
Uploaded 26 June 2017
CRIMINAL LAWJURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – trafficking in a controlled drug other than cannabis namely heroin – money laundering – alleged proceeds from crime – telephone intercepts and surveillance – covert surveillance – recorded conversations – turns on own facts

R v Song (No 1) [2017] ACTSC 147
Uploaded 26 June 2017
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Admissibility of evidence – search warrant – time of issue contains error– warrant executed prior to time of the issue identified on warrant – whether items seized prior to time of issue shown on face of warrant should be admitted into evidence – impropriety or contravention of Australian law – significant probative value of evidence – evidence to be admitted – s 138 of the Evidence Act 2011 (ACT)

R v NX [2017] ACTSC 72; SCC 253 of 2016; SCC 19 of 2017
Uploaded 20 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judgment and punishment – sentence – burglary – aggravated burglary – theft – taking, driving or riding in motor vehicle without consent – damage property – routine domestic burglaries – offences committed to raise money for drugs – early introduction to substance abuse – non-parole periods not available for juvenile offences – importance of avoiding crushing sentence.

R v West [2017] ACTSC 135; SCC 179 of 2015
Uploaded 20 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – failure to complete community service requirement – unexplained failures to attend supervision appointments – no re-offending – offender’s complex mixture of inter-related socio-economic rather than criminogenic problems – re-sentence without community service order.

R v Keir (No 2) [2016] ACTSC 394
Uploaded 20 June 2017
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – previous representation made by an unavailable person to give evidence – Need for Crown to put its case in examination-in-chief – accused not competent to give evidence as a witness for the prosecution – evidence admissible but cannot be put in cross-examination not having been adduced in Crown case

Atarashii Stone Pty Ltd v Granite Transformations Pty Ltd [2017] ACTSC 116
Uploaded 20 June 2017
CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for interlocutory injunction – termination of franchise contract by franchisor – whether serious question to be tried – whether balance of convenience favours injunctive relief

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2017] ACTCA 24
Uploaded 19 June 2017
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Application for leave to appeal out of time – Explanation for delay – Merits of proposed appeal

R v EO [2017] ACTSC 138; SCC 288 of 2016
Uploaded 19 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – young offender – engaging in sexual intercourse with a person above the age of 10 years but under the age of 16 years – plea of guilty – remorse shown to the victim – insight into effects of offence – not included onto child sex offender’s register – Good Behaviour Order

Atarashii Stone Pty Ltd v Granite Transformations Pty Ltd (No 2) [2017] ACTSC 139
Uploaded 19 June 2017
EQUITY – INTERLOCUTORY INJUNCTION – Application for interlocutory injunction to be continued – termination of franchise contract by franchisor – whether plaintiff conducting business in a manner justifying preservation of the status quo – whether irreparable harm for which damages not an appropriate remedy a separate condition precedent to grant of interlocutory injunction – balance of convenience favours injunctive relief – injunction continued

R v GG [2017] ACTSC 137; SCC 165 of 2016; SCC 166 of 2016
Uploaded 19 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trial by jury – sexual assault in the third degree – assault occasioning actual bodily harm – intentional damage to property – relationship evidence – offender in position of paternal authority figure – no prior criminal history – sentence of imprisonment – backdated sentence to take time in custody already served into account

R v Van Duren [2017] ACTSC 132; SCC 119 of 2016; SCC 120 of 2016
Uploaded 16 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – assault on police officer – unlawful strangulation of RSPCA inspector – trespass and damage property on RSPCA premises – where offender’s dog seized – where offender has PTSD as a result of defence service – relevance of mental health condition to sentencing

Foote v Barton Property Partnership No 1 (No 2) [2017] ACTSC 136
Uploaded 16 June 2017
PROCEDURE — COSTS — partnership disputes — whether costs should follow the event — effect of offers of settlement — net amount only payable due to payment made by plaintiffs during pendency of proceedings — no order as to costs — turns on own facts

R v Keir [2017] ACTSC 131; SCC 211 of 2015; SCC 212 of 2015; SCC 1 of 2016
Uploaded 16 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – possession of property reasonably suspected of being proceeds of crime – possession of ammunition – guilty verdict – pleas of guilty.

R v Chifuntwe (No 2) [2017] ACTSC 134
Uploaded 16 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – Judge alone trial – aggravated robbery – act endangering life – fail to stop for police – identification – circumstantial evidence.

R v Chifuntwe [2017] ACTSC 133
Uploaded 16 June 2017
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce coincidence evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect.

R v Lou [2017] ACTSC 127
Uploaded 13 June 2017
CRIMINAL LAW – Particular Offences – money laundering and organised fraud – trafficking in controlled drug.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to exclude admissions made to the Australian Federal Police – exclusion of evidence obtained under search warrant – tape recording of confessions and admissions – reliability of admissions by defendants – exclusion of prejudicial evidence in criminal proceedings – exclusion of improperly or illegally obtained evidence.

R v TI [2017] ACTSC 129; SCC 246 of 2014; SCC 247 of 2014; SCC 248 of 2014; SCC 221 of 2015; SCC 240 of 2015; SCC 241 of 2015
Uploaded 13 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breaches of good behaviour order by non-compliance with supervision requirements constituted by minimal engagement with rehabilitation programs and unauthorised departure from ACT – subsequent commission of family violence offences – “sudden-death” approach of Corrective Services to breaches of good behaviour orders.

R v Blundell [2017] ACTSC 128; SCC 171 of 2015; SCC 172 of 2015; SCC 267 of 2016; SCC 66 of 2017; SCC 67 of 2017
Uploaded 9 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug offences – Supply drug of dependence – Possess prohibited substance – Possess offensive weapon – Damage to property – Domestic violence offences – Offender with extensive criminal history – Consideration of rehabilitation prospects when sentencing

In the matter of the adoption of MSN [2017] ACTSC 92
Uploaded 9 June 2017
CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – Adoption – Children in care of state – application to dispense with consent of birth parents to adoption – whether neglect of child requires moral culpability – whether neglect under Children and Young People Act 2008 establishes neglect under Adoption Act 1993 – scope for parents to discharge parental obligations after child taken into care – whether best interests of child an independent ground for dispensing with consent of birth parent.

Peter v Wade [2017] ACTSC 122
Uploaded 6 June 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Motor vehicle offences – Failure to appear – Appeal against sentence – Whether sentence was manifestly excessive – Whether sentencing magistrate erred in imposing good behaviour orders which ran concurrently with the parole period – Offender with substantial criminal history – Offender’s need for drug and alcohol rehabilitation

Groessler v Gregoric-Ceballos [2017] ACTSC 124
Uploaded 5 June 2016
APPEAL – CRIMINAL LAW – Assault occasioning actual bodily harm – assault using sliding door – intermediate object – no direct bodily contact –  whether appellant was reckless – s 24 of the Crimes Act – intentional recklessness in relation to result not required

R v BI [2016] ACTSC 287
Uploaded 2 June 2017
CRIMINAL LAW – Particular offences – offences against the person – sexual offences – act of indecency on a person under the age of 16 years – indecency in the presence of a young person – attempted incest – incest – attempted sexual intercourse with a young person.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – charged and uncharged acts – tendency to have a particular state of mind – to be attracted to children – tendency to act in a particular way – obtain sexual gratification from children – permitted to lead tendency evidence of charged acts.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to sever the indictment – where complainants are known to each other – where significant length of time between alleged acts – whether insufficient similarities in conduct – application refused.

R v Vimahi; R v Grech [2017] ACTSC 97
Uploaded 2 June 2017
CRIMINAL LAW – OFFENCES AGAINST THE PERSON – Grievous bodily harm – possession of a prohibited firearm- circumstantial evidence – alibi – Judge alone trial – shooting – right to silence.

R v Walters [2017] ACTSC 123; SCC 62 of 2016
Uploaded 2 June 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspiracy to traffic in a controlled drug

R v Wilkins [2017] ACTSC 111; SCC 224 of 2014; SCC 225 of 2014; SCC 305 of 2014; SCC 306 of 2014; SCC 152 of 2016; SCC 208 of 2016
Uploaded 30 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking a controlled drug other than cannabis, namely methylamphetamine – plea of guilty – breach of Good Behaviour Orders – community service completed – drug-related offences – good prospects for obtaining employment – reasonable prospects of rehabilitation – community better protected through addressing drug issues and avoiding reoffending – Good Behaviour Orders cancelled – re-sentenced – Intensive Correction Order imposed.

Barlow v Law Society of the ACT (No 2) [2017] ACTSC 121
Uploaded 30 May 2017
PROCEDURE – Miscellaneous procedural matters – striking out of notice of appeal – striking out of appeal – dismissing appeal – abuse of process of court.

Legal Practitioner v Council of the Law Society of the ACT (No 3) [2017] ACTCA 25
Uploaded 29 May 2017
CIVIL LAW  – Application to vary orders – Application to extend time for complying with a self-executing order after the period for compliance had expired – Compliance with orders outside of time limit – Jurisdiction to extend time for compliance under r 6351

R v TL [2017] ACTCA 18
Uploaded 29 May 2017
CRIMINAL LAW – appeal from a single judge of the Supreme Court – offences against the person – sexual intercourse with a person under 16 years – act of indecency on a person under 16 years – plea of guilty – crown appeal against sentence – manifestly inadequate – consider sentencing remarks as a whole  – not so lenient as to warrant the intervention of the court  – appeal dismissed.

Brunoro v Nebelung [2017] ACTCA 26
Uploaded 26 May 2017
APPEAL – GENERAL PRINCIPLES – Assessment of damages – Assault – Effect of alcoholism on general damages – Reduction of interest on damages for delay – Whether award of damages manifestly inadequate – Whether consideration of aggravated damages and exemplary damages conflated – Whether failure to award exemplary damages
APPEAL –  Claim under Family Provision Act 1969 (ACT) – Whether error in failing to find equitable interest in property – Whether provision should be made under Family Provision Act – Estoppel by deed – No unambiguous statement as to nature of interest – Whether privy to deed

Valencic v Jordan [2017] ACTSC 120
Uploaded 26 May 2017
APPEAL – appeal from the Magistrates Court – appeal against sentence – whether Magistrate erred in not making a section 17 non-conviction order – whether the Magistrate rejected the evidence relied on by the appellant – whether Magistrate’s failure to hide frustration with appellant amounted to a sentencing error – whether Magistrate paid sufficient attention to likely impacts of licence disqualification on appellant’s family – sentence  not “obviously wrong” – sentencing outcome cannot be relied on to show otherwise undetectable specific error in sentencing process – establishing specific error re-opens sentencing discretion whether or not specific error affected outcome – re-exercise of sentencing discretion by appeal court –different sentence may be imposed unless appeal court considers original sentence appropriate.

R v King [2017] ACTSC 119; SCC 86 of 2016
Uploaded 25 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a trafficable quantity of cannabis – significant criminal history for similar offences – impact of sentence – effect of a forfeiture order – consideration for assessment for an Intensive Corrections Order – no assessment made for an Intensive Corrections Order – period of imprisonment partially suspended with a Good Behaviour Order – s 34(2) of the Crimes (Sentencing) Act 2005 (ACT)

Faris v Coulon [2017] ACTSC 114
Uploaded 23 May 2017
APPEAL - CRIMINAL APPEAL - Appeal against conviction – Assessment of witness credibility by trial judge – Assessment of competence of child witness by trial judge – Allegations of actual or apprehended bias by trial judge

Richards v Burnes [2017] ACTSC 117
Uploaded 22 May 2017
APPEAL JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against sentence – whether the sentence imposed was manifestly excessive.

R v NT [2017] ACTSC 69; SCC 250 of 2016
Uploaded 19 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency involving a person under 10 years of age – relationship of trust involving grandfather and granddaughter –childhood sexual abuse and mental illness may explain but does not justify offender’s actions – disclosure of otherwise unknown offences – whether disclosed offences would otherwise have come to light – effect of such a finding on size of sentencing discount.

R v Keski-Nummi-Wilson [2017] ACTSC 115; SCC 99 of 2016
Uploaded  19 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure a person under the age of sixteen – using a carriage service to solicit child pornography

Samani v The Queen [2017] ACTCA 23
Uploaded 18 May 2017
APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal against sentence – fraudulent conduct – obtaining financial advantage by deception – producing false or misleading documents – administration of justice offences – whether the sentences imposed at first instance were manifestly excessive – whether the sentencing judge could be satisfied that no penalty other than actual imprisonment was appropriate – whether an Intensive Corrections Order should have been considered.

R v Rogers [2017] ACTSC 67; SCC 17 of 2012; SCC 268 of 2016; SCC 269 of 2016
Uploaded 17 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – indecent exposure – no physical contact – actions intended to offend and discomfort observers – subsequent actions relevant in assessing offender’s intentions – offender aware methamphetamine abuse might trigger psychotic attacks causing disinhibited or violent conduct – relevance of Verdins approach where offender knows likely impact of drug use on his mental stability and tendency to offend.

Smarzak v Fergusson [2017] ACTSC 113; SCA 13 of 2017
Uploaded 17 May 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against sentence – possessing implements with intent to commit theft – whether the sentence imposed was manifestly excessive – whether the learned Magistrate erred in failing to apply the totality principle.

R v Pallier [2017] ACTSC 112; SCC 92 of 2016; SCC 95 of 2016; SCC 97 of 2016
Uploaded 16 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty – criminal history

Utting v Clark [2017] ACTCA 22
Uploaded 16 May 2017
DAMAGES – General principles – assessment of damages in relation to future events – likely duration of pain condition – whether court erred in awarding damages for fixed period when chance that pain condition would continue – whether damages should have been assessed for whole of working life and then discounted for chance of early recovery

Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19
Uploaded 12 May 2017
APPEAL – CRIMINAL LAW – Appeals against sentence – unlawful confinement – trafficking in a trafficable quantity of cannabis – co-offenders – parity principle – parity and concurrency and cumulation – restrictive bail conditions – allowance for time spent in custody – whether sentences manifestly excessive – differences in criminal histories – consideration of family circumstances

Cooper v Singh [2017] ACTCA 21
Uploaded 12 May 2017 
APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – costs – Calderbank offer – offer of compromise

Law Society of the Australian Capital Territory v Legal Practitioner [2017] ACTSC 107
Uploaded 11 May 2017
PROFESSIONS AND TRADES – LAWYERS – Complaints and discipline – application to remove practitioner from the Roll of Practitioners following recommendation of ACAT – professional misconduct and unsatisfactory professional conduct – bankruptcy obstructing access to legal assistance – depressive mental illness – application for an adjournment – vacation of hearing before the Full Court

Glanville v Harris [2017] ACTSC 110
Uploaded 10 May 2017
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against findings of guilt – appeal that findings of guilt were unsafe and unsatisfactory – theft – appropriation of property – false accounting – elements of the offence of theft – reckless – “accounting  document” – intention to permanently deprive – s 350 of the Criminal Code Act 2002 (ACT)

TRUSTS – DISCRETIONARY TRUSTS – Powers of the trustee – consent – “right to enforce the trust” – in personam right – chose in action – intention to defeat the trust – reckless as to the intent to defeat the trust – intention to permanently deprive – transactions had no relationship to the object of the trust –
s 305(2) of the Criminal Code Act 2002 (ACT)

R v Cross [2017] ACTSC 91
Uploaded 10 May 2017
CRIMINAL LAW – PRACTICE AND PROCEDURE – Judge-alone trial – criminal responsibility – plea of not guilty by way of mental impairment – prosecution must prove physical elements of offence beyond reasonable doubt – whether accused was suffering from a mental impairment on balance of probabilities.

CRIMINAL LAW – Arson offence – consequences of mental impairment verdict depend on whether offence is a “serious offence” or not – “serious offence” involves actual or threatened violence – where violence not an element of offence, offence to be assessed as committed – threat only affecting property does not make offence “serious” – offence not “serious” – offence to be dealt with under s 323, Crimes Act 1900 (ACT).

Singh v The Queen [2017] ACTCA 17
Uploaded 9 May 2017 
APPEAL – CRIMINAL LAW – Appeal against sentence –
co-offenders for offences – whether sentence was manifestly excessive – abducting another person by force – unlawfully confining or imprisoning another person – committing an act of indecency on another person without consent – engaging in sexual intercourse with another person without consent – parity of sentences with co-offender – appropriate distinction in the culpability – re-sentence

Hall v The Queen; Barker v The Queen [2017] ACTCA 16
Uploaded 9 May 2017 
APPEAL – CRIMINAL LAW – Appeal against sentence – aggravated robbery – attempted aggravated robbery –
co-offenders for offences – totality principle – parity principle – whether sentences manifestly excessive – Aboriginality a factor considered by the sentencing Judge – appeals dismissed

R v Lemmon [2017] ACTSC 108; SCC 275 of 2016
Uploaded 8 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences –  trafficking in a controlled drug other than cannabis  – sale or supply of a drug of dependence – plea of guilty  – remorse  – good prospects for rehabilitation – terms of imprisonment  – suspended sentence – Good Behaviour Order.

R v Cain and Endresz [2003] ACTSC 114
Uploaded 8 May 2017

R v Wyatt [2017] ACTSC 87
Uploaded 8 May 2017 
CRIMINAL LAW | JURISDICTION, PRACTICE AND PROCEDURE | Restorative justice | Arson offences | Property offences | Explanation of restorative justice | Purposes of restorative justice | Reasons for referring offender to restorative justice | Impact of restorative justice on victim | Significant time elapsed between offences and restorative justice referral

R v Avis [2017] ACTSC 106; SCC 264 of 2016; SCC 266 of 2016
Uploaded 8 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a controlled drug other than cannabis – possession of property reasonably suspected of being stolen – unlawful possession of ammunition – possession of a prohibited substance – pleas of guilty – criminal history

Hartigan v Commissioner for Social Housing in the ACT [2017] ACTSC 100
Uploaded 8 May 2017
TORTS – NEGLIGENCE – General Principles – Duty of care – dangerous premises – Pitbull Terriers kept in public housing – whether tenant needed permission from Commissioner to keep dangerous dog in public housing – conventional occupier’s liability – whether dog formed part of the state of the premises – whether Commissioner owed duty of care to visitors to public housing – Commissioner’s capacity to control risk posed by presence of dangerous dogs in its leased premises – no duty on Commissioner to regulate keeping of dangerous dogs in public housing – keeping of dangerous dogs in general regulated by another authority –  whether Commissioner liable as keeper of dogs kept in its leased premises.

PRACTICE AND PROCEDURE – Amendment of statement of claim to add new basis of liability – no reasonable cause of action disclosed – leave to amend refused.

R v McBride [2017] ACTSC 102; SCC 181 of 2016
Uploaded 5 May 2017 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty –  significant criminal history

R v Bennett [2017] ACTSC 104; SCC 231 of 2014; SCC 232 of 2014
Uploaded 5 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – Repeated breach of good behaviour order – Repeated failure to comply with supervision – Continuing use of drugs undermining offender’s capacity to rehabilitate– JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Resentence – Repeated breach of good behaviour order – Repeated failure to comply with supervision – Continuing use of drugs undermining offender’s capacity to rehabilitate

R v Stubbs [2017] ACTSC 82; SCC 269 of 2015
Uploaded 5 May 2017
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - fraudulent conduct - obtaining property by deception - legal practitioner - deterrence and punishment - lack of remorse -  terms of imprisonment - full-time imprisonment - balance of sentence suspended - Good Behaviour Order - reparation order

R v Daly [2017] ACTSC 105; SCC 56 of 2016
Uploaded 5 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property offence – Theft – Theft of neighbour’s motorbike – Alcohol abuse – Bail conditions aimed at addressing alcohol abuse – Capacity to comply with strict conditions

R v Wyper (No 2) [2017] ACTSC 103; SCC 109 of 2016
Uploaded 5 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – engaging in sexual intercourse without consent and being reckless as to consent – family violence offence – guilty verdict following trial by jury – considerations of subjective circumstances – good  character – lack of criminal record – general deterrence – Intensive Corrections Order made

R v Curtis (No 3) [2017] ACTSC 101; SCC 92 of 2013
Uploaded 5 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – assault occasioning actual bodily harm – breach of a Good Behaviour Order – failure to complete community service induction or ordered hours – suspended sentence – new Good Behaviour Order made – community service condition

R v Barlow [2017] ACTSC 90; SCC 25 of 2016; SCC 37 of 2017; SCC 38 of 2017
Uploaded 4 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – kidnapping – forcible confinement – assault occasioning actual bodily harm – hinder police – possess prohibited weapon – drive while disqualified – drive an unregistered vehicle – drive an uninsured vehicle – assault during confinement charged separately so not an aggravating factor – offences committed to enforce offender’s “rights” through violence and deprivation of liberty – parity of sentences when co-offenders sentenced for different aspects of same incident – whether offences arising out of single incident necessarily justify entirely concurrent sentences – need to ensure total sentence imposed appropriately reflects total criminality of actions – general deterrence important for offences involving considered actions – intensive correction order not available – no requirement for offender to be sentenced or partly sentenced before intensive correction assessment can be ordered.

Beattie v Croatto [2017] ACTSC 98
Uploaded 3 May 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – whether the sentence imposed was manifestly excessive.

Australian Capital Territory v Crawford [2017] ACTSC 94
Uploaded 3 May 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against the exercise of a discretion – history of delay – leave to file and serve an amended statement of claim – medical negligence

Trewin v Pickwick Group Pty Ltd [2017] ACTSC 93
Uploaded 3 May 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court –  workplace injury – claim for workers’ compensation – expert evidence – whether the Chief Magistrate’s findings were supported by the evidence

R v Sutton [2017] ACTSC 95; SCC 6 of 2017
Uploaded 3 May 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – use carriage service to access child pornography – early plea of guilty

Ayala v Poole (No 2) [2017] ACTSC 85
Uploaded 1 May 2017
APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – appeal dismissed – sentence confirmed – re-sentencing
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – periodic detention – periodic detention not available – sentence related order – order contrary to law – sentence stayed – “serving a sentence of imprisonment” – re-open sentencing – re-sentencing
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – re-sentencing – common assault – family violence matters – mental health problems – depression – anxiety – post traumatic stress disorder – resistant to counselling or treatment – alcohol use – evidence from author of Court Duty Report – not suitable for community service work – finding of unsuitability overridden – extend time to perform community service work – sentence suspended – Good Behaviour Order

Cashin v The Queen [2017] ACTCA 13
Uploaded 1 May 2017
APPEAL AND NEW TRIAL – PRACTICE AND PROCEDURE – Appeal against conviction and sentence – where the jury delivered inconsistent verdicts – whether the verdicts are unsafe and unsatisfactory – where the sentences were accumulated –whether the sentences imposed were manifestly excessive.

Construction Occupations Registrar v Bates [2017] ACTCA 15
Uploaded 1 May 2017
LOCAL GOVERNMENT — BUILDING CONTROL — Building certifiers — occupational discipline — grant of building approval — whether building approval may be granted for works already completed where no certifier appointed for those works — whether plans approved as plans without regard to works completed on site — relationship between ss 19 and 19A of the Building Act 2004 (ACT)

Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88
Uploaded 28 April 2017
TRADE AND COMMERCE – TRADE PRACTICES AND RELATED MATTERS – Misleading and deceptive conduct – silence or non-disclosure as a form of misleading and deceptive conduct – non-disclosure need not be intentional – non-disclosure did amount to misleading and deceptive conduct – representations to constitute conduct – s 52 of the Trade Practices Act 1974 (Cth)
EVIDENCE – EXPERT OPINION – Concurrent expert evidence – preference of evidence – influence of instructions given – nexus of argument – “in conclave”
DAMAGES – ASSESSMENT – Loss and damage must be actual loss and damage suffered – link between reliance of the misleading and deceptive conduct and the loss of damage claimed – causation – reasonableness – mitigation – liability to third parties – compensation payable as a consequence of loss of rent due to abandonment of premises – exit costs – damages for capital outlays – damages for trading losses – damages for borrowing costs – interest payable – s 82 of the Trade Practices Act 1974 (Cth) – s 46 of the Fair Trading Act 1992 (ACT)

R v McCauley; R v Johnston [2017] ACTSC 84; SCC 147 of 2015; SCC 33 of 2016
Uploaded 27 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – importing a marketable quantity of a border-controlled drug – arranging for cocaine to be sent to Australia from Thailand – no suggestion of a professional or organised importation scheme – police intercept of phone communication – application for sentencing judge to go beyond findings implicit in jury verdicts– scope for taking account of other facts adverse to the accused – scope for taking into account facts favouring accused – availability of intensive correction orders – intensive correction orders involve significant degree of leniency – intensive correction orders provide incentive to rehabilitation – scope for Crown submissions about disposition of a sentence after Barbaro principles.

R v Zdravkovic [2017] ACTSC 70; SCC 8 of 2015; SCC 10 of 2015
Uploaded 27 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – assault occasioning actual bodily harm – act of retribution, response to provocation or gratuitous attack – gratuitous attack and importance of general deterrence and denunciation – alcohol abuse – relevance of community protection.

Ayala v Poole [2016] ACTSC 63
Uploaded 26 April 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against conviction – common assault – Mackenzie friend – whether the appellant ought to be permitted to withdraw pleas of guilty – no miscarriage of justice – appeal dismissed

R v Sutton [2017] ACTSC 78; SCC 179 of 2016
Uploaded 26 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –indecent assault on a male – historic offences – peculiar circumstances – limitation period abolished – process of rehabilitation – low likelihood of reoffending – sentences of imprisonment – sentences suspended.

R v GG [2017] ACTSC 12
Uploaded 20 April 2017
CRIMINAL LAW – Particular Offences – offences against the person – sexual intercourse without consent – sexual intercourse with lineal descendant – act of indecency
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to adduce tendency evidence – whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by potential prejudicial effect – application refused.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to sever the indictment – where complainants are known to each other – permitted to sever indictment.

R v Forrest (No 2) [2017] ACTSC 83; SCC 128 of 2016; SCC 129 of 2016
Uploaded 19 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – repeat offender – aggravated robbery – burglary – aggravated burglary – theft – intentionally damaging property – dishonestly taking a motor vehicle without the owner’s consent – dishonestly driving someone else’s motor vehicle without the consent of the owner – dishonestly receiving stolen property knowing or believing it to be stolen – driving whilst disqualified – rolled-up counts – conditional liberty at the time of offending – totality of sentence – Verdins principles – Restorative Justice undertaken – plea of guilty – general deterrence – specific deterrence – Deferred Sentence Order – bailed to attend residential drug rehabilitation

R v Al-Harazi (No 6) [2017] ACTSC 63
Uploaded 18 April 2017
CRIMINAL LAW – PARTICULAR OFFENCES – Offences against the person – murder – trial by jury -- EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES – Judicial discretion to admit or exclude evidence – evidence-in-chief interview – prior inconsistent statements – “Edwards lie” – directions as to order of police interviews to be played – hearsay evidence admitted for a non-hearsay purpose – no unfair prejudice to the accused – Division 4.2.2A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)

R v Al-Harazi (No 5) [2017] ACTSC 61
Uploaded 18 April 2017
CRIMINAL LAW – JURISIDICTION, PRACTICE AND PROCEDURE – Fitness to plead – conclusions of investigation into the fitness of the accused undertaken – accused not unfit to plead – s 311 of the Crimes Act 1900 (ACT)

R v Al-Harazi (No 4) [2016] ACTSC 298
Uploaded 18 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – special or exceptional circumstances – trial for alleged offence of murder – trial delay – delay as a special or exceptional circumstance – whether delay of two years between alleged offence and trial is inordinate – delay not shown to amount to special or exceptional circumstances – delay not unreasonable – psychiatric or medical condition or treatment may be a considered factor for special or exceptional circumstances – a combination of circumstances may lead to special or exceptional circumstances – criteria for granting bail -  interests and wishes of children highly relevant – bail not granted – s 9C of the Bail Act 1992 (ACT) – s 22 of the Bail Act 1992 (ACT)

R v Al-Harazi (No 3) [2016] ACTSC 290
Uploaded 18 April 2017
PROCEDURE – CRIMINAL LAW – Vacation of trial – fitness to plead – psychiatric evaluation – real or substantial question about fitness to plead – question of inquiry – adjournment for further psychiatric evaluation – Div 13.2 of the Crimes Act 1900 (ACT)

R v Al-Harazi [2016] ACTSC 250
Uploaded 18 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – tendency application – s 192A Evidence Act 2011 (ACT) – whether the evidence has significant probative value

R v Hou [2017] ACTCA 14
Uploaded 13 April 2017
CRIMINAL LAW – APPEAL – SEVERITY OF SENTENCE APPEAL – drug offences – manifestly inadequate – Crown appeal against sentence – error in sentencing discretion – MDMA manufacturing – possession of controlled precursor – trafficking in controlled drug other than cannabis

R v Beniamini (No 3) [2017] ACTSC 80
Uploaded 11 April 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Correction of reasons for sentence – no issue of principle

In the adoption of LGL (No 2) [2017] ACTSC 76
Uploaded 10 April 2017
FAMILY LAW AND CHILD WELFARE – ADOPTION –Application for Discharge of an Adoption Order – Order made under the Adoption of Children Ordinance 1965 (ACT) – discharge of adoption order following amendments to Adoption Act 1993 (ACT) made by the Statute Law Amendment Act 2017 (ACT)

Olney v Martin [2017] ACTSC 79
Uploaded 7 April 2017
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – contravention of protection order – trespass – breach of good behaviour orders – error of law – error as to factual basis – manifestly excessive – totality of sentence – concurrency and cumulation between the sentences

Alcazar-Stevens v Stevens [2017] ACTCA 12
Uploaded 7 April 2017
APPEAL – POWERS OF ATTORNEY – STATUTORY INTERPRETATION – Appeal against extension of time to make an application for compensation under s 50(1) – Whether extension should have been refused because respondent had no reasonable prospects of establishing standing – Whether primary judge erred by misconstruing s 50(1) – Whether primary judge erred by failing to find  that the respondent lacked any reasonable prospects of establishing standing

R v Walters [2017] ACTSC 77
Uploaded 7 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – conspiracy to traffic in a controlled drug – verdict

R v BI (No 4) [2017] ACTSC 71; SCC 64 of 2016
Uploaded 5 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – trial by jury – committing an act of indecency upon or in the presence of a person under the age of 16 – showing of pornographic material to a child – attempting to engage in sexual intercourse – attempting to commit a crime – incest – lineal descendant – no mitigation to an offence if a child is approaching the maximum age of the offence – loco parentis – aggravation through breach of trust – concurrency of sentence – general deterrence – sentenced to a period of imprisonment

Achanfuo-Yeboah v The Queen (No 2) [2017] ACTCA 11
Uploaded 5 April 2017
CRIMINAL LAW | JURISDICTION, PRACTICE AND PROCEDURE | Bail | variation of bail | application for an extension of the stay of sentence | special and exceptional circumstances required | financial requirements to secure legal representation | bail and stay of sentence extended until the appeal

Helkeast Pty Ltd v Ruckschloss [2017] ACTSC 65
Uploaded 3 April 2017
BUILDING, ENGINEERING AND RELATED CONTRACTS – Damages - Limitation of Actions – Negligence – Misleading and Deceptive – Engineering – Building Work – Construction Work

R v Campbell [2017] ACTSC 74; SCC 121 of 2016; SCC 122 of 2016
Uploaded 3 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug offences – Trafficking in a controlled drug other than cannabis – Dealing in the proceeds of crime – Concurrent sentences – Imprisonment – Nonparole period – Decline to set a nonparole period – Significant  criminal history

R v Campbell [2017] ACTSC 73; SCC 267 of 2011
Uploaded 3 April 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – failure to comply with supervision – illicit substances detected in urinalysis sample – suspended sentence imposed

R v Kelly (No 2) [2017] ACTSC 64; SCC 103 of 2016
Uploaded 31 March 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Correction of sentence – sentence not contrary to law – order of the Court amended – slip rule – r 6906 of the Court Procedures Rules 2006 (ACT)

R v Pahl [2017] ACTSC 68
Uploaded 31 March 2017
CRIMINAL LAW – Statutory defence of mental impairment –Trespass and burglary – Alcohol-induced psychosis – History of alcohol-induced psychotic episodes – Alleged mental vulnerability to alcohol-induced psychosis –  Any mental disorder only background feature – Healthy mind – Psychotic episode a reactive condition

McGarvey v Mulino [2017] ACTSCFC 1
Uploaded 30 March 2017
CRIMINAL LAW – APPEAL – Appeal against conviction – Driving offences – Refusing to permit blood sample to be taken by nurse – Appellant convicted under incorrect section –Statutory interpretation – Lack of legislative clarity – Appeal allowed – Conviction set aside

Registrar General of the Australian Capital Territory v Inanna Incorporated [2017] ACTSC 62
Uploaded 28 March 2017
CORPORATIONS – WINDING UP – Liquidators – provisional liquidators – remuneration of Court appointed liquidator – assessment of costs – time costing – work reasonably necessary for the purposes of the provisional liquidator – remuneration sought approved – Associations Incorporation Act 1991 (ACT) – Schedule 6 of the Court Procedure Rules 2006 (ACT) – Corporations Rules

Evans v Chapman [2017] ACTSC 57
Uploaded 27 March 2017
ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – application for review of administrative decisions made under the Administrative Decisions (Judicial Review) Act 1989 – ACT public servant – allegations of misconduct – dismissal

R v Carmody (No 3) [2017] ACTSC 60
Uploaded 27 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – damaging property – assessment finding accused not suitable for a Intensive Corrections Order – not subject to a Good Behaviour Order at the time the offences were committed – protection of the community – substantial efforts made towards rehabilitation – suspended sentence – Good behaviour Order imposed

Islam v The Queen [2017] ACTCA 10
Uploaded 24 March 2017
APPEAL – JURIDISICTION, PRACTICE AND PROCEDURE – Appeal against sentence – recklessly inflicting grievous bodily harm – whether sentence was manifestly excessive – whether sentencing judgment was affected by errors of fact – whether sentencing judge erred taking into account incomplete pre-sentence report – assistance to be provided to self-represented litigants – whether sentencing judge erred in calculating sentence – whether sentencing judge erred by taking into account irrelevant considerations – whether sentencing judge erred by failing to take into account relevant considerations

R v MacDonald [2017] ACTSC 59; SCC 28A of 2016; SCC 28C of 2016; SCC 29 of 2016; SCC 211 of 2016
Uploaded 24 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Burglary – Theft – Obtaining Property by deception – Damaging Property – Escaping Lawful Custody - Breach of Good Behaviour Orders – guilty pleas - terms of imprisonment

R v Malarone [2017] ACTSC 58; SCC 238 of 2016
Uploaded 24 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining financial advantage by deception – plea of guilty – very good prospects for rehabilitation – terms of imprisonment – suspended – Good Behaviour Order – Reparation Order.

Indigenous Business Australia v Schofield [2017] ACTSC 56
Uploaded 22 March 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amended orders – inherent jurisdiction of the Court – amendment of a consent order

R v Toumo’ua [2017] ACTCA 9
Uploaded 22 March 2017
APPEAL – Criminal Law – Crown appeal against sentence – nature of Crown appeal – whether specific error in allowing a discount of 25 per cent for each guilty plea – approach to discount for guilty pleas – whether sentences were manifestly inadequate – whether specific error in setting a low nonparole period – re-sentence

Mi v Li [2017] ACTSC 54
Uploaded 17 March 2017
ARBITRATION — COMMERCIAL ARBITRATION — Judicial Review — conduct of arbitration proceedings — application to remove arbitrator from proceedings — arbitrator misconduct — arbitration or award improperly procured — manifest error of law on the face of the award

Sharma v The Queen [2017] ACTCA 8
Uploaded 16 March 2017
CRIMINAL LAW – SEVERITY OF SENTENCE APPEAL – manifestly excessive – error in sentencing discretion – judgment and punishment – offences against the person – recklessly inflict grievous bodily harm – guilty plea – ‘one punch’ attack – offender intoxicated – good prospects of rehabilitation – intensive correction orders –  sentence of full-time imprisonment imposed – partially suspended

R v Bartlett (No 2) [2017] ACTSC 51; SCC 8 of 2016; SCC 9 of 2016
Uploaded 10 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – assessed as suitable for an Intensive Corrections Order – positive subjective circumstances – Intensive Corrections Order made – community service work condition – general deterrence

R v Wyper [2017] ACTSC 50; SCC 109 of 2016
Uploaded 9 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing following jury trial – engaging in sexual intercourse without consent and being reckless as to whether the victim was consenting – family violence offence – victim and offender in an intimate relationship – offender’s antecedents considered – general deterrence – Intensive Corrections Order assessment ordered

GJ v AS (No 4) [2017] ACTCA 7
Uploaded 8 March 2017
PRACTICE AND PROCEDURE – COSTS – Award of costs – power to award costs – purpose of a costs order – ordinary rule – new affidavit evidence sought to be relied upon – leave not grant to rely on new affidavit – discretionary entitlement to costs a matter of practice and procedure – jurisdiction to order costs under the Domestic Violence and Protection Orders Act – appellant to pay the respondent’s costs – r 1721 of the Court Procedure Rules 2006 (ACT)

Egan-Green v McLean [2017] ACTSC 48
Uploaded 8 March 2017
DEFAMATION – STATUTORY LIMITATION -  Publication – Slander-Privilege

R v Kristiansen [2017] ACTSC 37; SCC 61 of 2015; SCC 62 of 2015
Uploaded 7 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – Extensions of Criminal Responsibility - conspiracy – conspiring to traffic in controlled drug other than cannabis – plea of guilty – residential rehabilitation – restricted liberty – community’s best interests – Intensive Corrections Order.

Amos v McCarron (No 2) [2017] ACTSC 46; SCA 86 of 2013
Uploaded 7 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – appeal against sentence imposed by Magistrates Court upheld – re-sentence – driving with a prescribed concentration of alcohol – drink driving – special driver – driving whilst disqualified – repeat offender – breach of Good Behaviour Orders – disqualification from holding or obtaining a licence – delay in sentencing – self reform – rehabilitation relevant to sentencing – general deterrence – suspended sentence

R v Horne [2017] ACTSC 36; SCC 164 of 2016
Uploaded 3 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – theft – intent to steal – consideration of breach – long gap in criminal history – prospects for rehabilitation – particularised subjective circumstances – specific deterrence – general deterrence

Bourne v Head [2017] ACTSC 45
Uploaded 3 March 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – offences punishable summarily and summary procedure generally – possession of offensive weapons and disabling substances with intent – only rational inference – appeals dismissed.

Innes v Commonwealth of Australia [2017] ACTSC 44
Uploaded 3 March 2017
PRACTICE AND PROCEDURE – application to amend pleadings – limitation of actions – futility – actual and presumptive prejudice – whether the institution of proceedings constituted an abuse of process.

Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6
Uploaded 3 March 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – legal practitioner – misleading and deceptive conduct – appeal from an appeal against a finding of professional misconduct – whether the appellant had deliberately or recklessly misled the Magistrates Court.

R v Beniamini (No 2) [2017] ACTSC 32; SCC36 of 2016
Uploaded 27 February 2017
CRIMINAL LAW JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing –sentenced for several offences – recklessly inflicting grievous bodily harm – common assault – domestic violence –  multiple breaches of Good Behaviour Orders – significant criminal history – escalation of violent offending – general deterrence – specific deterrence – suspended sentence imposed – totality

Knight v Commonwealth of Australia (No 4) [2017] ACTSC 42
Uploaded 24 February 2017
PRACTICE AND PROCEDURE | COSTS | Usual rule as to costs | Self represented prisoner seeking extension of time in which to bring personal injury claim | application dismissed | whether departure from usual order as to costs warranted in the circumstances

Scuderi v Raskurasingham [2017] ACTSC 41
Uploaded 24 February 2017
APPEAL AND NEW TRIAL – Appeal from Magistrates Court – Assessment of damages from motor vehicle accident – No challenge to finding that plaintiff’s evidence unreliable – Challenge to adequacy of award for numerous heads of damage – no issue of principle

Lumley v Sainsbury [2017] ACTSC 40
Uploaded 24 February 2017
DAMAGES – personal injury – motor vehicle accident – injuries to spine – pre-existing degenerative condition in spine –  reasonableness of ongoing chiropractic treatment – causation in relation to economic loss and domestic assistance

R v Rappel [2017] ACTSC 38
Uploaded 24 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – murder – assault occasioning actual bodily harm – contravening a protection order – plea of guilty – disputed facts – intention – worst case – sentenced to terms of imprisonment.

Cave v ACT [2017] ACTSC 34
Uploaded 23 February 2017
CIVIL PROCEEDINGS – Pleadings – offers of compromise – personal injury claim – offer not accepted and judgment no less favourable to plaintiff – special costs order – proceedings be paid on a solicitor and client basis – costs assessed on a party/party basis.

R v Kivalu [2017] ACTSC 33
Uploaded 23 February 2017
Evidence – Prohibition of Publication of Evidence – s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – jurisdiction – definition of proceeding – “a legal or other action or proceeding” – administration of justice – potential prejudice –application refused.

Beniamini v Storman (No 2) [2017] ACTSC 31
Uploaded 23 February 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Sentences imposed contrary to law – not possible to suspend a sentence which has expired – reopening of proceedings to correct penalty errors – clerical error – slip rule – sentences amended and remade – s 61 of the Crimes (Sentencing) Act 2005 (ACT) – r  6906 of the Court Procedures Rules 2006 (ACT)

Beniamini v Craig [2017] ACTSC 30
Uploaded 23 February 2017
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against sentence – error of law – error in sentencing process – misstatement of the maximum penalty for the offence of escaping lawful custody – objective seriousness of the offences – manifestly excessive – totality of sentence – proportionality – concurrency and cumulation between the sentences – “one transaction principle” – sentence exceeded a proper proportion to the criminality committed – appeal upheld in part – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – common assault – family violence offences – escape from lawful custody – summary disposal at prosecutor’s election – re-sentence – s 374 of the Crimes Act 1900 (ACT

R v Bresnan [2017] ACTSC 18; SCC 243 of 2016
Uploaded 22 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated robbery – offensive weapon –– pleas of guilty – reasonable prospects of rehabilitation – terms of imprisonment imposed.

Barlow v Law Society of the ACT [2017] ACTSC 35
Uploaded 22 February 2017
APPEAL – GENERAL PRINCIPLES – right of appeal –competence of the appeal – appeal ground embarrassing and inadequately particularised – striking out notice of appeal – scope for summary dismissal of appeal – inherent jurisdiction – discretionary power.
PRACTICE AND PROCEDURE – operation of cross-vesting legislation – scope for transfer from Supreme Court to Federal Circuit Court – bankruptcy proceeding in Federal Circuit Court relating to enforcement of costs order made by Full Court.
LEGAL PRACTITIONERS – application for unrestricted practising certificate refused – no misconstruction of applicable legislation by ACT Law Society – obligations of ACT Law Society – compliance with legislation regulating legal profession.

R v Woods [2017] ACTSC 17; SCC 133 of 2016
Uploaded 21 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – culpable driving of motor vehicle – causing grievous bodily harm – high concentration of alcohol – licence disqualification – terms of imprisonment – served by way of Intensive Corrections Order – Community Service.

R v Ford [2017] ACTSC 19; SCC 87 of 2016; SCC 214 of 2016
Uploaded 21 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated robbery – offensive weapon – obtain property by deception – dishonestly ride in motor vehicle – breach of Good Behaviour Order – pleas of guilty – terms of imprisonment imposed.

R v NI [2016] ACTSC 361; SCC 247 of 2012; SCC 126 of 2014; SCC 135 of 2016
Uploaded 21 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offence against the person – act endangering life – property damage offences – arson – breach of Good Behaviour Orders – terms of imprisonment.

Steen v Senton [2017] ACTCA 5
Uploaded 17 February 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –jurisdiction to deal with costs appeal – single judge or three-member Court of Appeal for substantive matter – reopening an appeal after orders perfected.
COSTS – SETTLEMENT OFFER – reasonableness of Calderbank offer determined as at time of offer.

ACT Director of Public Prosecutions v Nikro [2017] ACTSC 15
Uploaded 17 February 2017
CONFISCATION OF CRIMINAL ASSETS – Property be restrained – whether property is tainted – restraining orders over property – automatic forfeiture of restrained property on conviction for serious offences – exclusion order – human rights – double jeopardy – not to be tried or punished more than once  – meaning of public authority – application for stay or dismissal of  proceedings – dismissed – costs order.

Brekalo v Sommerauer [2017] ACTSC 29
Uploaded 17 February 2017
WORKERS COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND THIRD PARTIES – injury – persons liable to pay compensation – assessment by agreement – rights and liabilities between employer and third persons.

Dalton v Pinkerton [2017] ACTSC 28
Uploaded 17 February 2017
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – Personal injury – Motor vehicle accident – Damages – Matters to be considered in reduction of damages – Credibility of oral testimony – Credibility of plaintiff – Calculating out-of-pocket expenses

R v Carmody (No 2) [2017] ACTSC 25
Uploaded 16 February 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amendment to a Court order – slip rule – period of Good Behaviour Order incorrectly entered by the Court registry – new order made reflecting original pronouncement by sentencing Judge – proceedings adjourned awaiting receipt of the assessment for an Intensive Correction Order

R v Park [2017] ACTSC 26; SCC 122 of 2015; SCC 2 of 2016
Uploaded 16 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – act endangering life – underlying mental illness – plea of guilty – terms of imprisonment.

Quach v Butt [2017] ACTCA 4
Uploaded 15 February 2017
PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Leave to Appeal from the Supreme Court – single justice sitting in the Court of Appeal – leave to appeal against orders setting aside subpoenas – appeal against dismissal of – no legitimate forensic purpose for the material requested – application for leave to appeal dismissed – order for costs made
PRACTICE AND PROCEDURE – APPEAL – Supreme Court appeal against dismissal by Magistrates Court of application for issue of subpoenas in appeal – subpoenas - setting aside subpoenas – need for legitimate forensic purpose for subpoenas – application for leave to appeal dismissed

R v Pearce [2016] ACTSC 393; SCC 271 of 2015
Uploaded 14 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Property Offences – Arson – Forcible Confinement – Partially Suspended Sentence – Mental Illness – Rehabilitation

R v Arthur [2017] ACTSC 23; SCC 67 of 2016
Uploaded 14 February 2017
CRIMINAL LAW – SENTENCING – Sexual Offences – Use Carriage Service to Transmit Child Pornography

R v KI [2016] ACTSC 392; SCC 192 of 2013; SCC 8 of 2014
Uploaded 14 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – Re-Sentence – Young Offender – Aggravated Robbery

R v BL [2017] ACTSC 16
Uploaded 13 February 2017
CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Evidence -- complainant gave pre-trial evidence from remote witness room in presence of support dog -- support dog not visible in recording of pre-trial evidence to be shown to jury -- whether jury required to be directed about presence of support dog and its significance for the assessment of complainant’s evidence or case against accused.

Grass v Williams Love & Nicol Lawyers Pty Ltd [2017] ACTSC 20
Uploaded 13 February 2017
PRACTICE AND PROCEDURE – Application for leave to appeal out of time – Appeal from the Magistrates Court of the Australian Capital Territory – Extension of time not available under Court Procedures Rules 2006 (ACT) – whether rules should be dispensed with – Magistrate addressing application for extension of time in which to appeal decision to refuse to set aside default judgment – Magistrate considered only whether appropriate excuse for failure to file appeal in time – failure of magistrate to consider underlying merits of application  to set aside default judgment – rules dispensed with to allow appeal to be filed – appeal allowed

Monaghan v Australian Capital Territory (No 3) [2017] ACTSC 22
Uploaded 13 February 2017
COSTS – Plaintiff obtains judgment for $2,453 – costs incurred by solicitors disproportionate to claim – operation of s 181 of Civil Law (Wrongs) Act 2002 (ACT) in relation claims including claims for damages for personal injury and other claims – claim for damages for deprivation of liberty not claim for “personal injury damages” – fixed sum of costs awarded in circumstances where solicitors agree to not recover in excess of fixed sum from plaintiff

Foote v Barton Property Partnership (No 1) [2017] ACTSC 21
Uploaded 13 February 2017
PARTNERSHIP – RETIREMENT OF PARTNERS – Resignation of partners from four partnerships related to medical practice – rights of retiring partners under partnership deeds or Partnership Act 1963 (ACT) to payment for value of interest in partnerships – claims by and against retiring partners – turns on own facts

The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13
Uploaded 7 February 2017
PROCEDURE – ENFORCEMENT OF ORDERS – Seize and sale – money order – judgment of the Magistrates Court registered in the Supreme Court – service of the enforcement order – in chambers orders – Application in Proceedings was entitled between enforcement officer and the enforcement debtor
REAL PROPERTY – SEIZURE AND SALE OF LAND – Amount of judgment debt justified a sale of real property – sale must be at a fair and reasonable price – r 2219 of the Court Procedure Rules 2006 (ACT)

Cantwell v Nozhat [2017] ACTSC 14
Uploaded 7 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – manifestly inadequate – negligent driving – resulting in grievous bodily harm – appeal allowed – re-sentenced offender.

R v Vosikata (No 2) [2016] ACTSC 391; SCC 11 of 2016 
Uploaded 3 February 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – murder – plea of guilty – disputed facts – intention – sentenced to terms of imprisonment

Ryan v Vizovitis [2017] ACTCA 3
Uploaded 2 February 2017
COSTS – agreement as to costs between solicitor and client – whether primary judge erred in finding that costs agreement was unfair and unreasonable – where agreement intended to increase solicitor’s fees retrospectively – where failure to explain terms of costs agreement and ensure agreement was understood.
PRACTICE AND PROCEDURE – where respondent was allowed to re-open case – where further evidence led in reply over appellant’s objection – where appellant not permitted to lead further evidence in response – whether appellant was denied procedural fairness before the primary judge - whether intervention of trial judge gave rise to apprehension of bias – whether unfairness in the conduct of the trial.
PRACTICE AND PROCEDURE – case management in civil trials – where appellant substantially contributed to delays and costs of the hearing.

Construction, Forestry, Mining and Energy Union v Commissioner, Australian Federal Police (No 2) [2017] ACTSC 10
Uploaded 2 February 2017
PROCEDURE – COSTS – Award of costs – general principles – costs of issues – justiciability – exercise of the Court’s discretion in relation to costs – different oral submissions than the stated grounds in the Originating Application – no adjournment or other such order sought to amend Originating Application – apportionment of costs – apportionment against lack of success by plaintiff on a number of issues – modified order as to costs –
r 1705 of the Court Procedure Rules 2006 (ACT) – r 1721(1) of the Court Procedure Rules 2006 (ACT)
ADMINISTRATIVE LAW – JUDICIAL REVIEWSearch and seizure – warrant – whether execution of warrant unlawful – requirement for copy of warrant to be made available to occupiers as soon as reasonably practicable – copy to be handed over prior to recording of production of warrant – requirement for copies of documents seized to be provided to occupiers “as soon as practicable” – copying of documents seized – requirement for police to provide receipt for everything seized – receipt to be provided as soon as reasonably practicable – seizure of computer material – probative value of information used to gain warrant issued to be executed at night – Crimes Act 1900 (ACT)

Kaney v Rushton [2017] ACTSC 11
Uploaded 2 February 2017
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – ACT Civil and Administrative Tribunal – ACAT – orders made by the ACAT – registration of a judgment of the ACAT – enforcement of orders made by the ACAT – powers of the ACAT – “any personal action at law” – enforcement powers of the Magistrates Court – s 22 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) –s 71 of the ACT Civil and Administrative Tribunal Act 2008 (ACT)
PRACTICE AND PROCEDURE – SERVICE OF DOCUMENTS – Informal service – transfer of proceedings – fees associated with the filing of an Originating Application – certainty of actual notice due to no appearance – contempt of an order – s 247 of the Legislation Act 2001 (ACT)
TORTS – TRESPASS – Trespass to land and rights of real property – recovery of land – proof of title
SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Administration of Estate by executor – family provision – property interests – custody of children – prior Domestic Family Violence Protection Order

R v BL [2016] ACTSC 209
Uploaded 31 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – recorded evidence – police interview – editing
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – special arrangements for witness – child witness – witness with disability – sexual offence proceedings – presence of assistance dog – dog to reduce anxiety and sensory overload – dog in training – no accreditation scheme for assistance animals required by legislation – fair trial – reduce strain on witness giving evidence – possible prejudice – evoke sympathy of jury – distract jury – jury directions – evidence recorded – recording can be edited before trial
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Evidence – special arrangements for witness – witness with disability – sensitivity to glare – wear cap or visor – fair trial – importance of seeing witness’ eyes – clear sight of face necessary

R v Clarkson [2017] ACTSC 9; SCC 229 of 2015
Uploaded 23 January 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft.

Superal-Wallace v Indypendynt Pty Ltd [2017] ACTSC 8
Uploaded 20 January 2016
JURISDICTION, PRACTICE AND PROCEDURE – statutory interpretation – whether right of appeal from ACAT available – whether decision of the President of ACAT is a decision of an appeal tribunal or a tribunal – definition of ‘appeal tribunal’

R v Bartlett [2016] ACTSC 390; SCC 8 of 2016; SCC 9 of 2016
Uploaded 20 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trial by jury – guilty of recklessly inflicting grievous bodily – assessment of the objective seriousness of the offence – recognition of the harm done to the victim – consideration of previous good character of offender – general deterrence – assessment for an Intensive Corrections Order

R v Randall Williams [2016] ACTSC 389; SCC 265 of 2015; SCC 255 of 2016
Uploaded 20 January 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – sentencing practice – threatening to kill – surrounding circumstances very relevant to the seriousness of the offence – Court to have regard to the background circumstances of the offence – offender drove car into lake to kill himself and the victim – offender threatened to kill the victim’s dogs – unlawfully confining another person – assessment for unlawful confinement – period of confinement was relatively short – menacing driving – subjective circumstances – marriage breakdown – family violence offences – no premeditation or planning – guilty plea – general deterrence – sentenced to a term of imprisonment – partially suspended sentence – ineligibility for an Intensive Corrections Order due to full time pre-sentence custody – Good Behaviour Order

R v Eyles (No 3) [2017] ACTSC 1; SCC 220 of 2014; SCC 191 of 2016
Uploaded 20 January 2017
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – engaging in sexual intercourse with a person over the age of 10 but under the age of 16 years – failing to report personal details as a registrable sex offender – guilty plea – multiple breaches of Good Behaviour Obligations and bail – residential drug rehabilitation – rehabilitation an important factor in sentencing – sentence of imprisonment suspended to re-enter residential drug rehabilitation on a Good Behaviour Order

Workers Compensation Nominal Insurer v FAW Industries Pty Ltd and Insurance Australia Ltd [2017] ACTCA 2
Uploaded 20 January 2017
WORKERS’ COMPENSATION – APPEAL FROM THE SUPREME COURT – Appeal from a decision of the Master – insurance – common law liability – damages paid for workplace injury – injured worker an employee in the Australian Capital Territory – business entered into insurance policies in both New South and the Australian Capital Territory – limitations imposed on indemnity by legislation – whether the Master erred regarding indemnity liability – appeal upheld – s 155 of the Workers Compensation Act 1987 (NSW)

Amos v McCarron [2017] ACTSC 6
Uploaded 19 January 2017
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – specific error of law – error in sentencing process – predetermination of the sentence – failure to afford offender procedural fairness in the hearing – error in setting of the non parole period – error by imposing in full the suspended sentences – totality of sentence – appeal procedure principles – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – driving whilst driver licence is suspended –  driving whilst disqualified –  driving with a prescribed concentration of alcohol in the blood – special driver – repeat offender –  breaches of prior Good Behaviour Orders – sentencing principles

Degioannis v Boxx [2017] ACTSC 7
Uploaded 17 January 2017
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Appeal against sentence – manifestly excessive.

Richardson v The Queen [2016] ACTCA 63
Uploaded 17 January 2017
CRIMINAL LAW – Particular Offences – offences against the person – culpable driving of motor vehicle – causing death – causing grievous bodily harm. – CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against conviction – conviction unreasonable and not supported by the evidence – whether appellant’s intoxication was the substantial and operating cause – ample evidence to support conviction – appeal dismissed.

Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) (No 2) [2017] ACTCA 1
Uploaded 17 January 2017
CIVIL LAW – PRACTICE AND PROCEDURE – Costs – applied civil rules – public interest litigation – whether litigation is in the public interest – whether personal undertaking for security for costs created a manifest injustice – right to be heard – costs follow the event – applicant to pay the respondent’s costs -- r 1720 of the Court Procedures Rules 2006 (ACT) – r 1721 of the Court Procedures Rules 2006 (ACT)

Wagdy Hanna and Associates Pty Limited v Gavagna (No 2) [2017] ACTSC 4
Uploaded 13 January 2017
COSTS – Review of Registrar’s assessment of costs – Court Procedures Rules 2006 (ACT), r 1855 – Where Registrar had reconsidered earlier assessment of costs – Whether counsel’s fees should have been awarded on the basis of there being a “fee on brief plus refresher” – Whether GST recoverable in relation to the professional costs where party is a self-represented solicitor – Whether the agreement between the parties went to liability for the costs of assessment or only the quantum of those costs – Whether amount permitted for defendant’s expert was excessive

Knight v Commonwealth of Australia (No 3) [2017] ACTSC 3
Uploaded 13 January 2017
LIMITATION OF ACTIONS – Application for extension of time – Claim for damages arising out of assault and negligence – Multiple incidents giving rise to claims – Incidents occurred while plaintiff was a cadet at the Royal Military College, Duntroon – Plaintiff subsequently sentenced and imprisoned for separate incident – 27-year delay in commencing proceedings –  Whether Limitation Act 1985 (ACT) s 36 permitting the grant of an extension of time applies – Whether an explanation for the delay existed – Whether just and reasonable to grant extension of time – Consideration s 36(3) considerations – Meaning of disability for the purposes of s 36(3)(d) – Broader significance in relation to abuse in the armed services – Significance of absence of other remedies – Proportionality between damages and cost and effort associated with running claim – Whether proceedings amount to abuse of process – Whether use of proceedings as a means of achieving an interstate transfer predominant purpose of bringing proceedings – application dismissed

In the estate of Love [2017] ACTSC 5
Uploaded 13 January 2017
TRUSTEES – Application for judicial advice – Interpretation of will – Principles to be applied – Power of appointment of property under Wills Act 1968 (ACT) s 14A – Whether partial intestacy

Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 11) [2017] ACTSC 2
Uploaded 13 January 2017
PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Ex debito justitiae – application to set aside final judgment and orders ex debito justitiae – inherent power of the Court to set aside a judgment – whether judgment is a nullity – which procedural rules of the Court apply at a certain point in time – personal service of the Originating Application – what constitutes a step in the proceedings – appearance constitutes a voluntary submission to the jurisdiction of the Court – unconditional appearance constitutes a voluntary submission to the jurisdiction of the Court – irregularity of the Originating Application waived by the unconditional submission to the jurisdiction of the Court – whether the proceedings were a nullity – indorsement of the Originating Application – that the Originating Application was not amended when each iteration of the Statement of Claim was amended is irrelevant – failure to amend an Originating Application is an irregularity and not a nullity – application not made within reasonable time period – irregularity has no nullifying effect on the proceedings unless the Court otherwise orders – failure to identify in the title of the proceedings the representative capacity is a curable irregularity – personal service – defendant’s properly parties for all purposes pursuant to Supreme Court Rules ¬- application dismissed – Supreme Court Rules 1937 (ACT) – r 7000 of the Court Procedure Rules 2006 (ACT)

R v CA (No 2) [2016] ACTSC 371
Uploaded 12 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Reparation orders – whether insurer entitled to reparation order for insurance payout for stolen property – whether loss suffered as a direct result of offence – meaning of “direct result” in Crimes (Sentencing) Act 2005 (ACT) s 19 – insurer suffered indirect loss – no entitlement

R v CA [2016] ACTSC 378; SCC 93 of 2016; SCC 94 of 2016; SCC 139 of 2014; SCC 140 of 2014
Uploaded 12 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – breach of good behaviour order –prior similar offences – pleas of guilty – rehabilitation

R v Bilal [2014] ACTSC 74; SCC 122 of 2013
Uploaded 11 January 2017
CRIMINAL – Sentence – recklessly inflict grievous bodily harm – taxi driver strikes victim with vehicle – severe injuries to victim – degree of recklessness extremely high – offence in upper range – good prospects of rehabilitation

R v McGrail (No 3) [2016] ACTSC 372; SCC 34 of 2016; SCC 49 of 2016
Uploaded 11 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – offences against the person – sexual offences – engaging in sexual intercourse with a person under 16 years – act of indecency on a person under 16 years – found guilty after trial by jury – terms of imprisonment imposed.

R v Carmody [2016] ACTSC 382; SCC 258 of 2015; SCC 259 of 2015
Uploaded 11 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – recklessly inflicting grievous bodily harm – damaging property – alleged provocation – fear for concern of safety – victim sustained “really serious injuries” – broken arm caused by a blow by a baseball bat – no relevant premeditation – subjective circumstances – breach of Good Behaviour Order – cancellation of Good Behaviour Order – consideration of circumstances lead to a period of imprisonment – request for assessment for suitability for an Intensive Correction Order – general deterrence

R v Keyes [2016] ACTSC 387; SCC 37 of 2016
Uploaded 10 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – causing grievous bodily harm by a negligent act – guilty plea –subjective circumstances – significant injury suffered by victim not directly inflicted by offender – financial reparation made Good Behaviour Order – community service work condition – general deterrence

R v Ngerengere (No 5) [2016] ACTSC 388; SCC 66 of 2015
Uploaded 10 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – suspended sentence – Good Behaviour Order to allow for drug rehabilitation – administering a Good Behaviour Order in a way that the Sentence Administration Board might administer parole – specific deterrence

R v Hunt [2016] ACTSC 379; SCC 130 of 2016; SCC 132 of 2016
Uploaded 5 January 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – damaging property – trespass – on conditional liberty when offences committed – adjourned to permit rehabilitation – offender breaches bail by leaving residential rehabilitation program early – sentence of full-time imprisonment imposed

Impedovo v Nolan [2016] ACTSC 386
Uploaded 23 December 2016
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – Enforcement of debt – seizure and sale order in place in favour of respondents – appeal from order of registrar refusing application for payment of debt by instalments – whether solicitors for respondents acted unconscionably in recording note on title of appellant’s property subject to seizure and sale order – whether seizure and sale order should be set aside – appeal dismissed with costs – seizure and sale order extended.
EQUITY – General Principles and Maxims of Equity – whether noting seizure and sale order on title of affected real property unconscionable – whether using legal process against unrepresented owner of real property unconscionable – whether using legal process for the first time unconscionable.
REAL PROPERTY – General principles – noting of seizure and sale order on title of affected real property – removal of note of seizure and sale order from title when order suspended by making of instalment order.

R v Klobucar (No 5) [2016] ACTSC 383; SCC 215 of 2014
Uploaded 23 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty to one offence of possessing a prohibited weapon (nunchakus) – offender affected by mental impairment when offence detected – limited criminal history – sentence of imprisonment backdated to account for time spent in custody.

R v DM (No 2) [2016] ACTSC 385; SCC 53 of 2013
Uploaded 23 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty of one count each of arson, attempting to dishonestly obtain property by deception and dishonestly obtaining property by deception – evidence of premeditation – no relevant criminal history – offender afflicted by significant physical and mental health issues – history of childhood abuse, violence and other traumas – no expression of remorse – whether appropriate to make a reparation order noting offender’s financial difficulties – sentence of imprisonment to be served by intensive correction order.

Bishop v Houlahan; Bishop v Lawrence [2016] ACTSC 384
Uploaded 23 December 2016
CRIMINAL LAW – APPEAL AND NEW TRIAL– Appeal – General Principles – offence of driving with a level four concentration of alcohol in breath as a repeat offender – purported appeal from default disqualification period operative under s 33 of the Road Transport (Alcohol and Drugs) Act – appeal incompetent – effect of incompetence on stay of disqualification under s 216 of the Magistrates Court Act.
CRIMINAL LAW – APPEAL AND NEW TRIAL– appeal from convictions and sentences imposed by Magistrate – pleas of guilty entered to one offence each of failing to leave a licensed premises and hindering a public official and three offences of resisting a public official – whether appellant denied procedural fairness in relation to sentencing proceedings – appeal dismissed.

R v BI (No 3) [2016] ACTSC 356
Uploaded 23 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by jury – historical sexual offences – multiple offences – multiple complainants – multiple charges – act of indecency against a person aged 16 years or below – sexual intercourse with a person aged 16 years or below – incest
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Witnesses – admissibility of evidence – credibility evidence – advance ruling and findings –
cross-examination by defence as to credibility of the witness – witness previously convicted for the offence of obtaining money by deception – could substantially affect the assessment of the witness’s credibility – degree of dishonesty a relevant factor for consideration – proposed cross-examination not inconsistent with the intention of s 103 – substantial probative value –objection to the cross-examination of the dishonesty conviction over-ruled – s 103 of the Evidence Act 2011 (ACT)
EVIDENCE – EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS – Privilege in relation to self-incrimination – s 128 certificate issued by the Court – s 128 of the Evidence Act 2011 (ACT)

R v BI (No 2) [2016] ACTSC 355
Uploaded 23 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by jury – historical sexual offences – multiple offences – multiple complainants – multiple charges – act of indecency against a person aged 16 years or below – sexual intercourse with a person aged 16 years or below – incest
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Admissibility of evidence – circumstantial evidence – advance ruling and findings – agitating an issue that may otherwise cause inconvenience in the trial –  ‘Edwards lie’ – consciousness of guilt – post-offence conduct – unfair prejudice – probative value outweighed by the danger of unfair prejudice – evidence to be taken at its highest – evidence has substantial probative value – circularity of reasoning – evidence admissible only on the basis that the police were seeking to speak to the accused in respect of allegations involving OI – s 137 of the Evidence Act 2011 (ACT) – s 192A of the Evidence Act 2011 (ACT)

Achanfuo-Yeboah v The Queen [2016] ACTCA 71
Uploaded 23 December 2016 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of sentence – bail – considerations where grant of bail pending appeal – special and exceptional circumstances required – difficulty in obtaining legal representation – medical condition requiring daily medication – severe hardship to family – stay of sentence granted – bail granted on strict conditions – remunerated employment for the purpose of securing legal representation

R v Ogilvie (No 3) [2016] ACTSC 381
Uploaded 23 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – consideration of breach – offender ambivalent regarding obligations – cancellation of Good Behaviour Order – suspended sentence – community service work direction – construction of Myna bird cages recommended as the community service work direction

R v McCarthy (No 2) [2016] ACTSC 375; SCC 215 of 2015; SCC 154 of 2016
Uploaded 23 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonestly appropriate Commonwealth property – Burglary – drug rehabilitation – continued compliance – sentence imposed

R v Potts (No 5) [2016] ACTSC 380; SCC 218 of 2015
Uploaded 21 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty by a jury of three counts of obtaining property by deception – offender subject to conditional liberty at time of offending – significant criminal history – no expression of remorse – consideration of parity – whether inappropriate for prosecutor to submit that terms of imprisonment required – sentences of imprisonment imposed – sentences backdated to account for time spent in custody.

R v Eyles (No 2) [2016] ACTSC 373
Uploaded 21 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – bail variation – residential drug rehabilitation – multiple breaches of bail and Good behaviour Orders – discharge from drug rehabilitation for a positive urinalysis test result – rehabilitation an important factor in sentencing – stringent bail conditions – compliance of conditions – specific deterrence – general deterrence

United Cinemas Australia Pty Ltd v Gungahlin Lifestyle Pty Ltd [2016] ACTSC 376 Uploaded 20 December 2016
LEASES – CORPORATIONS – CAVEAT – Whether caveat should be continued pending trial of substantive proceedings – Whether equitable interest arising from lease or an agreement for lease – Whether agent of defendant “properly authorised in writing” for purposes of ss 201 and 204 of the Civil Law (Property) Act 2006 (ACT) – Whether assumptions under ss 128, 129 of the Corporations Act 2001 (Cth) avoid operation of s 204 – Whether company taken to have executed document by operation of s 126 of the Corporations Act 2001 (Cth) – Serious question to be tried – Caveat not discharged

R v Potts (No 4) [2016] ACTSC 370 
Uploaded 20 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – accused charged with one count each of burglary, theft and dishonestly take motor vehicle without consent and three counts of obtain property by deception – whether evidence is capable of sustaining verdict of guilty – whether evidence capable of excluding hypothesis consistent with innocence – jury discharged from entering verdicts in relation to charges of burglary and theft.

R v Lee [2016] ACTCA 69
Uploaded 19 December 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – whether good behaviour order can commence before associated sentence of imprisonment –interpretation of “any longer period” – Crimes (Sentencing) Act 2005 (ACT) s 12 – appeal dismissed

Creative Building Services Pty Ltd v TIO Air Conditioning Pty Ltd (No 2) [2016] ACTSC 374
Uploaded 19 December 2016
COSTS – Costs follow event – Departure from default rule under r 1729 of Court Procedures Rules 2006 (ACT) – Turns on own facts

R v Potts (No 3) [2016] ACTSC 341
Uploaded 16 December 2016
CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – identification – evidence identifying the accused as the person depicted in photographs – evidence to be given by partner of accused who lived with him at time photograph taken – whether evidence relevant – whether evidence properly characterised as fact or opinion – whether admissible as opinion evidence given by an ad hoc expert – evidence admitted subject to further satisfactory evidence concerning witness’s familiarity with accused.

R v Potts (No 2) [2016] ACTSC 340
Uploaded 16 December 2016
CRIMINAL LAW – EVIDENCE – Evidentiary Matters Relating to Witnesses and Accused Persons – hearsay – exception if maker unavailable and representation against interests and made in circumstances where likely to be reliable – representations identifying accused made by accomplice who pleaded guilty – mixed statements where partly against interests and partly exculpatory – representations not sufficiently against interests to be likely to be reliable – evidence not admissible.

Strano v Yates [2016] ACTSC 363
Uploaded 15 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – obstructing a public official – power to enter premises to arrest offender – claim of right – appeal allowed – remitted to Magistrates Court.

R v Leighton [2016] ACTSC 354; SCC 156 of 2016
Uploaded 15 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – pleas of guilty – assistance to authorities – very good prospects for rehabilitation – reduced non-parole period – terms of imprisonment.

R v KC [2016] ACTSC 362; SCC 110 of 2015; SCC 111 of 2015; SCC 206 of 2015
Uploaded 15 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – serious drug offences – cultivating controlled plant for selling  – manufacturing a controlled drug – offences against the person  – causing grievous bodily harm  – pleas of guilty  – criminal history  – terms of imprisonment imposed.

R v Howsan [2016] ACTSC 357; SCC 58A of 2016; SCC 58C of 2016; SCC 59 of 2016
Uploaded 15 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – property offences – theft – burglary – possessing ammunition – pleas of guilty – prospects for rehabilitation – remorse – sentenced to terms of imprisonment.

R v Fischetti [No 5] [2016] ACTSC 213; SCC 95 of 2015
Uploaded 14 December 2016
CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty by jury – multiple offences – obtain property by deception – attempt to obtain financial advantage by deception – use a false document – relevant criminal history.

R v Jacqueline McGowan [2016] ACTSC 309
Uploaded 14 December 2016
CRIMINAL LAW – SENTENCE – Punishment – amendment of good behaviour order – changed circumstances of the offender – medical deteriorating pending surgery – order amended

Gary Nigel Roberts v Westpac Banking Corporation [2016] ACTCA 68
Uploaded 14 December 2016
NEGLIGENCE – DUTY OF CARE – Whether bank owes a duty to customers to protect them from the actions of criminal third parties – where primary judge found no duty owed – appeal dismissed.

R v Campbell (No 2) [2016] ACTSC 368; SCC 209 of 2016
Uploaded 13 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – findings of guilt – aggravated robbery – dishonestly drive motor vehicle belonging to someone else – relevant criminal history

Creative Building Services Pty Ltd v TIO Air Conditioning Pty Ltd [2016] ACTSC 367
Uploaded 13 December 2016
JUDICIAL REVIEW – Adjudication decision – Payment claim made under Building and Construction Industry (Security of Payment) Act 2009 (ACT) – Amount awarded substantially greater than amount claimed in payment claim – Whether determination of amount claimed an error within jurisdiction – Whether decision of adjudicator involved jurisdictional error –Whether amount claimed in a payment claim is a jurisdictional fact

Pellegrino v Harman [2016] ACTSC 366
Uploaded 13 December 2016
APPEAL – CRIMINAL LAW – Appeal against conviction entered in the Magistrates Court – findings of guilt unreasonable having regard to all of the evidence – the learned Magistrate made findings of fact not available on the evidence – using a carriage service to menace – committing an act of indecency – elements of the offence – application of the wrong test of culpability – credibility of witness – appeal upheld in part – re-trial

Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 10) [2016] ACTSC 364
Uploaded 12 December 2016
JUDGMENTS AND ORDERS – JURISDICTION, PRACTICE AND PROCEDURE – Amendment – errors made in plaintiff’s written submissions relied upon by the Court – typographical errors in Court orders – plaintiff sought to have errors rectified – slip rule – new orders made – r 6906 of the Court Procedures Rules 2006 (ACT)

Legal Practitioner v Council of the Law Society of the ACT (No 2) [2016] ACTCA 67
Uploaded 12 December 2016
CIVIL LAW – application to amend orders entered by Deputy Registrar – allegation of bias and improper execution – application for stay of orders

R v Booth [2016] ACTSC 365; SCC 212 of 2016
Uploaded 9 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – burglary – pleas of guilty – significant criminal record – drug use – remorse.

In the adoption of LGL [2016] ACTSC 360
Uploaded 9 December 2016
ADOPTION – Application for discharge of an adoption order – Order made under the Adoption of Children Ordinance 1965 (ACT) – At self-government ordinance becomes Adoption of Children Act 1965 (ACT) – Act now repealed – Whether current Adoption Act 1993 (ACT) empowers the Court to discharge an adoption order made under repealed law – Technical amendments made to Act in 2008 have unintended consequence of removing power to discharge order – Need for legislative action

R v Cashin [2016] ACTSC 351; SCC 7 of 2016; SCC 42 of 2016
Uploaded 8 December 2016

R v Crawford (No 2) [2016] ACTSC 359
Uploaded 7 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – aggravated robbery – identification – DNA evidence.

Ghoubriel v The Queen [2016] ACTCA 66
Uploaded 6 December 2016
APPEAL – JURIDISICTION, PRACTICE AND PROCEDURE – Appeal against sentence – obtain property by deception offences – whether the sentencing judge erred in applying the principle of totality – whether the absence of any degree of concurrency of the sentences has produced the error of a manifestly excessive sentence – whether sentence was manifestly excessive.

R v Pretorius (No 2) [2016] ACTSC 358; SCC 203 of 2015
Uploaded 6 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic sexual offences – offender found guilty by a jury of one act of indecency on a person under 16 years – plea of guilty to  further act of indecency on a person under 16 years entered  later – third charge of act of indecency on person under 16 years abandoned – limited evidence of insight or expression of remorse – no relevant criminal history – significance of general deterrence in sentencing for sexual offences against adolescents – suspended sentences of imprisonment and community service order.

Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65
Uploaded 5 December 2016
Please note: this is a Summary of Judgment only - the full judgment is unavailable for publication

R v Goboly [2016] ACTSC 322; SCC 151 of 2016
Uploaded 2 December 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – serious offences – multiple offences – victim aged 13 years old – committing an act of indecency on a person under the age of 16 years – sexual intercourse with a person under the age of 16 years – consideration – subjective circumstances – prospects of re-offending – remorse – guilty plea – suspended sentence – Good Behaviour Order – Adult Sex Offenders Program

Pryce v Dunlap (No 2) [2016] ACTSC 353
Uploaded 1 December 2016
CIVIL LAW – PERSONAL INJURY – motor vehicle accident – assessment of damages – whether a redundancy payment has any effect on future economic loss.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – serious offences – multiple offences – victim aged 13 years old – committing an act of indecency on a person under the age of 16 years – sexual intercourse with a person under the age of 16 years – consideration – subjective circumstances – prospects of re-offending – remorse – guilty plea – suspended sentence – Good Behaviour Order – Adult Sex Offenders Program

Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352
Uploaded 1 December 2016
CRIMINAL PROCEDURE – BAIL – Variation of bail conditions – Whether subject of bail is required to sign a further undertaking or notice to make variation of conditions of bail effective – Significance of written undertaking to appear and comply with any conditions – Variation to conditions becomes effective upon an order being made by the Court – Plaintiff did not have to sign a notice of variation
TORTS – Negligence – Failure by Registry staff to provide accurate information to Australian Federal Police about bail conditions – Whether ACT breached a duty of care owed to the plaintiff – Whether damages arising from detention of plaintiff recoverable in cause of action in negligence – Extent to which Civil Law (Wrongs) Act 2002 (ACT), s 35 precludes award of damages arising from detention
HUMAN RIGHTS – Compensation – Human Rights Act 2004 (ACT), s 18(7) – Whether s 18(7) provides freestanding cause of action – Whether plaintiff entitled to compensation for being arrested and detained – Whether plaintiff entitled to compensation greater than awarded in common law claim

R v Hagan [2016] ACTSC 343; SCC 155 of 2015
Uploaded 30 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious drug offences – trafficking in large commercial quantity of a controlled drug – 30 kilograms of methylamphetamine – trafficking in a controlled drug – plea of guilty – utilitarian value – reasonable prospects of rehabilitation – terms of imprisonment.

R v XH (No 2) [2016] ACTSC 350; SCC 175A of 2015
Uploaded 29 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic sexual offences – offender found guilty by a jury of one count each of indecent assault of a female aged under 16 and carnal knowledge of a girl aged under 10 – offender possibly a minor at time of offences – ongoing denial of offending – consideration of delay in complaint – need to take account of historical sentencing practice – legislation creating offences replaced since commission of these offences – new offences have slightly different scope, and different maximum penalties – lower maximum penalties to be applied in each case – sentence of imprisonment to be served by way of intensive correction order.

R v Crawford [2016] ACTSC 349
Uploaded 29 November 2016
CRIMINAL LAW – Particular Offences – offences against property – theft – burglary – aggravated burglary – riding motor vehicle without consent – damaging property. – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to lead coincidence evidence – where the issue in trial will be identification of accused – prejudicial effect outweighs probative value – application refused. – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to sever the indictment – election for trial by judge – election reduces prejudice – application refused.

R v Klobucar (No 4) [2016] ACTSC 348
Uploaded 29 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment, Stay of Proceedings or Order Restraining Proceedings – application by accused for permanent stay of proceedings – two charges of unlawful possession of prohibited weapon – accused previously found not guilty by reason of mental impairment of charge of murder on same day as date of possession charges – Crown declined to consent to court entering special verdicts under s 321, Crimes Act 1900, or dismissing orders under s 334, Crimes Act 1900 – whether conduct of Crown amounts to abuse of process or prosecutorial oppression – stay refused. – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – application of s 28, Criminal Code 2002 (mental impairment defence) to offences where conduct element consists of a state of affairs rather than conduct. – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – two charges of unlawful possession of prohibited weapon – power of the Supreme Court to make orders under s 334, Crimes Act 1900 – whether charges are back-up or related charges – whether s 334 requires causal link between offending and mental impairment – s 334 does not apply to charges.

R v Klobucar (No 3) [2016] ACTSC 347
Uploaded 29 November 2016
CRIMINAL LAW – GENERAL MATTERS – Criminal Liability and Capacity – charges of burglary and intentionally inflicting grievous bodily harm – pleas of not guilty by reason of mental impairment – prosecution consent to entry of special verdicts under s 321 of the Crimes Act 1900 – whether entry of special verdicts appropriate – verdicts entered.

R v Forrest [2016] ACTSC 321
Uploaded 29 November 2016
CRIMINAL LAW --JURISDICTION, PRACTICE AND PROCEDURE --Restorative justice --explanation of restorative justice --referral for restorative justice --consideration --reasons for referring offender to restorative justice --STATUTE --INTERPRETATION --Crimes (Restorative Justice) Act 2004 (ACT) --‘relates to’ --‘relates to money and property’ --‘eligible victim’ --‘capable’ --division of offences into serious and less serious offences --‘eligible offender’--suitability --referring entity --explanation of restorative justice to eligible offender --‘accepting responsibility’ --relevant consideration for sentencing

Reid v Dukic [2016] ACTSC 344
Uploaded 29 November 2016
DEFAMATION – Assessment of Damages – default judgment entered against defendant – defamatory statements published on social media – statements baseless – directed towards plaintiff in professional capacity – compensatory damages awarded – aggravated damages awarded – injunctive relief granted.

R v NS [2016] ACTSC 346
Uploaded 29 November 2016
CRIMINAL LAW – Particular Offences – offences against the person – acts of indecency on a child under age of 10 years –sexual abuse disclosed after significant time elapsed – complainant underwent treatment for mental health issues. EVIDENCE – Evidence in Sexual and Violent Offence Proceedings – application by accused for protected confidences to be disclosed – legitimate forensic purpose identified – preliminary examination conducted – whether s 61 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) “gateway” provision.

Wagdy Hanna & Associates Pty Ltd v Gavagna [2016] ACTCA 64
Uploaded 25 November 2016
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – Appeal from finding that no contract entered – whether solicitor in his personal capacity entered contract with appellant company –whether contract made to be determined objectively – appeal grounds based on mis-reading of decision of primary judge – appeal dismissed

R v Naqvi [2016] ACTSC 345; SCC 174 of 2015
Uploaded 25 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – forcible confinement – recklessly inflicting actual bodily harm – sexual offences – sexual intercourse without consent – pleas of guilty – terms of imprisonment.

R v Malec [2016] ACTSC 329; SCC 57 of 2015; SCC 59 of 2015
Uploaded 23 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspiracy – conspiring to traffic in a controlled drug other than cannabis – plea of guilty – reasonable prospects of rehabilitation – general deterrence – Intensive Correction Order.

R v DD (No 3) [2016] ACTSC 320; SCC 181 of 2015; SCC 182 of 2015
Uploaded 23 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated burglary – theft – principle of totality term of imprisonment imposed.

Cressy v Miloriad (No 2) [2016] ACTSC 339
Uploaded 23 November 2016
DAMAGES – Personal Injury – Motor vehicle accident – Whether judgment should be amended to allow interest on Griffiths v Kerkemeyer damages and past out-of-pocket expenses – Meaning of “liabilities incurred that do not carry interest as against the person claiming interest” in Court Procedures Rules 2006 (ACT), r 1619(2)(a) – Griffiths v Kerkemeyer damages not liabilities for the purposes of r 1619(2)(a) – Rate of interest where Griffiths v Kerkemeyer damages assessed by reference to current day rates – Meaning of “special circumstances” in r 1619(7) – Whether special circumstances established by reason of change in expert opinion – Whether failure to accept Calderbank offer unreasonable – Whether order should be made varying default costs consequences under r 1725 of recovering less than $175,000 in proceedings transferred from Magistrates Court to Supreme Court

R v Dickerson [2016] ACTSC 337; SCC 144 of 2016
Uploaded 23 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offences – sexual intercourse with young person – plea of guilty – child sex offenders register – terms of imprisonment suspended – Good Behaviour Order – community service.

R v XT [2016] ACTSC 335; SCC 32 of 2016
Uploaded 23 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – sexual offences – act of indecency on a male – sexual intercourse – delay in prosecution – current sentencing practice  – principle of totality  – terms of imprisonment.

Sampson v De Haan [2016] ACTSC 327
Uploaded 23 November 2016
APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against sentence – error in sentencing process – manifestly excessive – non parole period incorrectly set –pre-sentence custody not taken into account – totality – appeal upheld
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – burglary – theft – dishonestly taking someone else’s motor vehicle without consent – dishonestly driving someone else’s motor vehicle without consent – re-sentencing – subjective circumstances – extensive criminal record – Aboriginal man – disadvantaged childhood – concurrency between sentences – new non parole period set – recommendation to require appellant to undergo residential drug and alcohol rehabilitation when granted parole

Pryce v Dunlap [2016] ACTSC 338
Uploaded 23 November 2016
PRACTICE AND PROCEDURE – Application for leave to tender medical reports at hearing – Court Procedures Rules 2006 (ACT), r 1241 – Meaning of “exceptional circumstances” – Whether “exceptional circumstances” established – Where reports went to utility of horse riding as a form of treatment – Significant benefit for the plaintiff in being able to rely on additional expert evidence – Where reliance on reports would require vacation of hearing date – Where pain medicine specialist not previously been qualified by either party – Whether prejudice suffered by defendant from inability to obtain opinion in response prior to hearing – Significance of statements in First Directions Hearing Questionnaire and Listing Hearing Questionnaire that experts briefed, expert reports served and counsel’s advice obtained– Application dismissed

R v Ngerengere (No 3) [2016] ACTSC 299; SCC 66 of 2015
Uploaded 21 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – theft – guilty plea – assessment for an Intensive Correction Order – suitability for an Intensive Correction Order – reasons for not proceeding with an Intensive Correction Order – sentencing procedures – suspended sentence – sentence back-dated to take into account
pre-sentence custody and residential drug rehabilitation – wholly concurrent sentence – reparation – Good Behaviour Order

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332
Uploaded 18 November 2016
CRIMINAL LAW – JURISDICTION – Application for prohibition directed to magistrate – Jurisdiction of Magistrates Court to hear charge – Whether charge may be formulated in short form authorised by statute – Whether defects in summons affect jurisdiction of magistrate when defendant has appeared
CRIMINAL LAW – CRIMINAL PROCEDURE – Speeding offence - Short form of offences specified by regulation – Whether information in short form sufficient – Whether information must also specify length of road where driver was driving – Short form sufficient – Whether particulars may be provided orally in court after plea has been entered

R v Connors (No 2) [2016] ACTSC 333
Uploaded 18 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – trafficking in a large commercial quantity of a controlled drug other than cannabis, namely methylamphetamine – elements of the offence – joint commission – covert surveillance – recorded conversations – beyond reasonable doubt – consideration – not guilty – Criminal Code 2002 (ACT)
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Judicial notice – evaluation of evidence – acceptance of witness evidence – reliable witness – evidence of acts in furtherance of the joint criminal enterprise – Evidence Act 2011 (ACT)
EVIDENCE – GENERAL PRINCIPLES – Circumstantial evidence – surveillance material – admissions – relevance – hearsay – direct evidence – evidence by closed circuit television – privilege in relation to self-incrimination in other proceedings – evaluation of evidence – probative value – accumulation of evidence

Fogarty v CGU Insurance Ltd [2016] ACTCA 62
Uploaded 18 November 2016
CONTRACTS – General Contractual Principles – breach of contract – appeal from single judge of Supreme Court – whether primary judge erred in finding there was no breach – where insurer had elected to repair damage – where insured refused to accept the proposed method of repair – no error demonstrated on part of primary judge – appeal dismissed

R v Stacker; R v Campbell [2016] ACTSC 334
Uploaded 17 November 2016
CRIMINAL LAW – JURIDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – joint trial –aggravated robberies – dishonestly drive motor vehicle – dishonestly ride motor vehicle – co-accused – DNA evidence – fingerprint evidence – guilty verdicts

R v Walters [2016] ACTSC 336
Uploaded 17 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – possess a prohibited firearm whilst unauthorised – DNA evidence – s 42(a)(iii) Firearms Act 1996 (ACT) – s 11(1)(a) Firearms Act 1996 (ACT) – evidential burden on the accused

Allianz Australia Insurance Ltd v Smeaton [2016] ACTCA 59
Uploaded 17 November 2016
APPEAL – PRACTICE AND PROCEDUREinsurance – interpretation of s 54(3) of the Insurance Contracts Act 1984 (Cth) – whether the insured has proved that no part of the loss that gave rise to the claim was caused by the act – which State’s licensing scheme should apply – cross-jurisdictional matter

Clarkson v Earle [2016] ACTSC 331
Uploaded 17 November 2016
CRIMINAL LAW – PARTICULAR OFFENCES – Driving matters – Drug-driving – appeal against disqualification period –– error of law in approach to determination of disqualification period – sentencing purposes not considered – appeal allowed
STATUTES – INTERPRETATION – Words and Phrases – “automatically disqualified” and “default disqualification” – whether difference in meaning – question not answered

R v Smith [2016] ACTSC 330; SCC 163 of 2016
Uploaded 17 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – domestic violence – sole incident – significant self rehabilitation

Bethke v Phelan [2016] ACTSC 328
Uploaded 17 November 2016 
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal from the Magistrates Court – appeal against sentence – appeal against licence disqualification period – alleged error of law – failure to give adequate reasons – appeal upheld – disqualification period varied to achieve backdating

ES (No 2) v Director-General of the Community Services Directorate [2016] ACTCA 61
Uploaded 15 November 2016
FAMILY LAW AND CHILD WELFARE – APPEAL AGAINST INTERLOCUTORY ORDERS – Stay – supervision order – appeal from single judge of the Supreme Court – short period before final determination – application dismissed

R v Arcus [2016] ACTSC 318; SCC 138 of 2016
Uploaded 15 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – damage to motor vehicles – strong subjective factors – Crimes (Sentencing) Act 2005 (ACT) s 35 and Ellis sentencing discount

Sharma v The Queen [2016] ACTCA 60
Uploaded 15 November 2016
CRIMINAL LAW – BAIL – Appeal bail – Bail Act 1992 (ACT) s 9E – whether having substantially served the full-time custodial portion of a sentence before appeal is determined is a “special and exceptional circumstance” – relevance of appeal prospects of success – stay and bail granted.

Vojneski v The Queen [2015] ACTCA 44
Uploaded 15 November 2016
CRIMINAL LAW – APPEAL AND NEW TRIAL – leave to appeal conviction out of time – explanation for delay – prejudice to Crown – merits of proposed appeal – whether reasonable probability of miscarriage of justice if leave refused
EVIDENCE – Admissibility and Relevance – tendency evidence – capacity of evidence to prove tendency – probative value of tendency evidence to prove fact in issue – fact in issue was appellant’s presence at murder – failure to identify probative value of evidence in relation to accused’s presence – evidence otherwise highly prejudicial.

R v CX [2016] ACTSC 106
Uploaded 15 November 2016
CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse with a young person – act of indecency with a young person – indecent assault.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – where accused applies to cross-examine complainants on application – whether allegations concocted – whether allegations subject to contamination – consideration of IMM v The Queen [2016] HCA 14 – application allowed in part.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit relationship and or context evidence – to explain late complaint – application allowed in part.

An application for admission by B as a Legal Practitioner [2016] ACTSCFC 2
Uploaded 15 November 2016
PROFESSIONS AND TRADES – LAWYERS – Qualifications and admissions – legal practitioner – application for admission to practice – suitability matters – matters relevant to good fame and character of the applicant – disclosure of mental illness – disclosure of an offence committed in the United States of America – disclosure of deportation and ban from the United States of America – disclosure of past illicit drug use – fit and proper person – admission to practice subject to conditions – Legal Profession Act 2006 (ACT)

R v Clifton [2016] ACTSC 326; SCC 88 of 2016; SCC 89 of 2016
Uploaded 14 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted arson – Molotov cocktails – damage property – drink‑driving – provisional license holder – special driver – pleas of guilty – parity with co-offender – intensive correction order

Albrecht v Insurance Australia Limited [2016] ACTCA 58
Uploaded 14 November 2016 
STATUTORY INTERPRETATION - interrelationship between Part 4.8 and s 155(3) of the Road Transport (Third-Party Insurance) Act 2008 (ACT) – where mandatory final offer (MFO) was accepted after institution of proceedings – where proceedings were instituted to protect appellant’s position before expiry of limitation period – where acceptance of offer in MFO was embodied in consent judgment – whether cap on assessment of appellant’s costs under s 155(3) applies – where general words in statute were intended to bear a narrower meaning.

Vojneski v The Queen [2016] ACTCA 57
Uploaded 10 November 2016 
CRIMINAL LAW – EVIDENCE – Tendency evidence – use of tendency evidence – tests for admissibility – whether misdirection on tendency evidence –– similarity between tendency incidents – no substantial miscarriage of justice – similarity of tendency incidents and offence incident  
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – murder – whether case in the worst category – public protection

Birkett Investments Pty v Streatfeild Investments Pty Ltd [2016] ACTSC 323
Uploaded 10 November 2016 
PRACTICE AND PROCEDURE – PROFESSIONAL CONDUCT – Lawyers – Application by plaintiff to restrain defendants’ solicitor for acting as the defendants’ legal representative – Where plaintiffs were former client of solicitor – Whether confidential information relating to the plaintiffs had been previously communicated to solicitor – Whether restraint necessary to ensure the administration of justice – Inherent jurisdiction of the Court – Application dismissed – Departure from usual costs order that costs follow the event

R v CX (No 2) [2016] ACTSC 325; SCC 213 of 2015
Uploaded 9 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – offences against the person – sexual offences – sexual intercourse with person under 10 – acts of indecency with a person under 10 – acts of indecency with a person under 16 – historical offences – guilty pleas – guilty verdict following trial by jury

R v CC [2016] ACTSC 324; SCC 90 of 2016
Uploaded 9 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – offences against the person – engaging in sexual intercourse with a person under 10 years – young offender – plea of guilty

Cristian v Bottrill [2016] ACTSC 315
Uploaded 9 November 2016
APPEAL – ADMINISTRATIVE TRIBUNAL DECISION – Appeal from ACT Civil and Administrative Tribunal – defamation – publishing content on the Internet – damages – prohibitory injunction – impecunious applicant an irrelevant factor – no arguable error – appeal dismissed

Van Kleef v Tran [2016] ACTSC 316
Uploaded 8 November 2016
PRACTICE AND PROCEDURE – Pre-court procedures under the Civil Law (Wrongs) Act 2002 (ACT) – Obligation to serve reports about the claimant’s medical condition under s 64 – Reports obtained but not served –– Application under s 75(2) for order permitting reliance on medical reports notwithstanding failure to serve reports prior to commencement of proceedings –Deliberate decision by plaintiff’s solicitor not to serve reports – Where plaintiff’s solicitor acted without instructions from the plaintiff – No evidence to establish that failure to serve reports caused significant prejudice to defendant – Leave granted – Costs awarded against plaintiff on a party and party basis – Whether order ought to be made pursuant to r 1753(3) – Whether costs order should be made against solicitor

R v Smith [2016] ACTSC 317; SCC 53 of 2016; SCC 55 of 2016
Uploaded 2 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences against the person – unlawful confinement – co-offenders – pleas of guilty – prospects for rehabilitation sentenced to terms of imprisonment – suspended sentence – Good Behaviour Order.

R v Lock [2016] ACTSC 319; SCC 161 of 2016
Uploaded 2 November 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated robbery – offensive weapon – obtaining property by deception – drive/ride motor vehicle without consent – pleas of guilty – reasonable prospects of rehabilitation – terms of imprisonment imposed.

KN v Wilson [2016] ACTSC 313
Uploaded 31 October 2016
CRIMINAL LAW – Particular Offences – property offences – aggravated burglary and theft – damage to property– breach of Good Behaviour Order.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Childrens Court – Appeal from Magistrates Court – appeal against sentence – manifestly excessive – application of sentencing principles to juveniles – appeal upheld in part.

PM v Beck [2016] ACTSC 314
Uploaded 31 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from ACT Childrens Court – incest – meaning of fellatio – whether evidence sufficient to support conviction -- HUMAN RIGHTS – PROCEDURE – Need to issue notices in accordance with s 34 Human Rights Act 2004 (ACT) – cases where notice is required

R v TL (No 2) [2016] ACTSC 289; SCC 100 of 2015; SCC 118 of 2016
Uploaded 27 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – sentencing for multiple offences – relative seriousness of the offence – multiple Good Behaviour Orders – offences occurred while subject to Good Behaviour Orders – Good Behaviour Order cancelled – sexual intercourse with a young person under 16 years – act of indecency committed on a young person under 16 years – aggravated robbery – subjective circumstances – consideration – concurrency of sentence – totality of sentence – general deterrence – prospects of rehabilitation

Clark v Bluett [2016] ACTSC 312
Uploaded 27 October 2016
CRIMINAL LAW – APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – appeal from Magistrates Court – appeal against conviction – validity of evidentiary certificates – whether the presumption of regularity applies – where a magistrate has the power to amend defective evidentiary certificates

R v Millard [2016] ACTSC 305; SCC 237 of 2015
Uploaded 26 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – dishonesty offences – lodging false income tax returns – offences committed in custody – plea of guilty – significant criminal history

R v TL [2015] ACTSC 265
Uploaded 25 October 2016
CRIMINAL LAW – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways

Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311
Uploaded 25 October 2016
APPEAL – NEGLIGENCE – Workplace injury – Appellant working in veterinary hospital – Appellant falls from a stepladder while putting blankets on a high shelf – Whether stepladder defective – Whether wobble in the stepladder materially contributed to the appellant’s fall – Whether magistrate properly applied s 43 of Civil Law (Wrongs) Act 2002 (ACT) – Whether evidence of altered system of work adopted after accident demonstrated failure to take reasonable care – Effect of codes of practice under Work Health and Safety Act 2011 (ACT) – Appeal dismissed
APPEAL – COSTS – Cross-appeal costs – Appeal by way of rehearing from Magistrates Court – Calderbank offer – Whether offer must explain the reasons for making the offer – Magistrate’s reasons inadequate – Re-exercise of discretion – Offer made well prior to service of important expert evidence – Unreasonableness of non-acceptance of offer not established –– Cross-appeal dismissed

R v Matthew Peter White (No 3) [2016] ACTSC 285; SCC 155 of 2013
Uploaded 24 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – burglary – theft – guilty plea – breach of Good Behaviour Obligations – actions following the breach – specific deterrence – illicit drug use connected with offending – residential rehabilitation a relevant consideration in the sentencing process – re-sentence – concurrency and totality of sentence – suspended sentence

R v Hill [2016] ACTSC 310; SCC 5 of 2016; SCC 6 of 2016
Uploaded 24 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – burglary – take motor vehicle without consent – drive motor vehicle without consent – obtain property by deception – minor theft – possess knife in public place – possess drug of dependence – strong subjective circumstances – strong rehabilitation prospects – Intensive Corrections Order – reparation order

Jausnik v Nominal Defendant (No 5) [2016] ACTSC 306
Uploaded 21 October 2016
TORTS – Negligence – Police involved in pursuit of fleeing vehicle across NSW/ACT border – Failure to comply with police protocols for safe driving and cross-border pursuits – Passenger in police vehicle suffering mental harm arising from attending scene of accident arising from police pursuit – Liability of State of New South Wales for failure to provide training in use of radios and cross-border pursuit protocols – Liability of police driver for injury to passenger
CHOICE OF LAW – Statutory contribution between tortfeasors – Accident in the Territory following police pursuit from New South Wales – Claim for contribution by ACT Nominal Defendant against New South Wales police office and State of New South Wales – Characterisation of apportionment legislation – Applicable choice of law rule.
TORTS – Causation – Police pursuit of driver cross border – Pursued driver involved in fatal accident – Whether pursued driver would have avoided accident if pursuit terminated earlier – Expert evidence based on aggregate statistics – Whether likely conduct of pursued driver proved on balance of probabilities – Causation not established
TORTS – Statutory contribution –  Nominal defendant liable for conduct of pursued driver who caused an accident – State of New South Wales and police officer also negligent – Contingent assessment of appropriate contribution

Lean v Cosmorex Coffee Pty Limited [2016] ACTSC 309
Uploaded 21 October 2016
STATUTORY DUTY – Dangerous Substances Act 2004 (ACT) –Plaintiff employed by coffee roasting company – Exposed to green coffee bean dust at workplace – Alleges that she suffered an aggravation of pre-existing asthmatic condition –– Whether green coffee bean dust is a “dangerous substance” for the purposes of the Act – Whether defendant failed to put in place a “safety management system” for handling beans required by ss 31, 34 of the Act – Whether defendant took all reasonable steps in relation to the risk – Plaintiff established breach of obligation to have safety management plan in s 31 and 34 of the Act
TORTS – Negligence – Whether defendant breached its duty of care – Extent to which obligations under statutory provision relevant to duty of care – Knowledge required by statutory provisions makes risk foreseeable – Breach of duty established
TORTS – Causation – Whether plaintiff’s condition caused by exposure to green coffee bean dust – Test for causation where breach of statutory duty – Not established on balance of probabilities that exposure triggered aggravation of asthma – Whether adoption of measure required to avoid breach of statutory duty would have avoided aggravation of condition – Lack of evidence that the proposed measures would have avoided aggravation of condition

Zdravkovic v The Queen [2016] ACTCA 53
Uploaded 21 October 2016
APPEALS – CRIMINAL LAW – Sentencing – whether sentence is manifestly excessive – attempting to obtain property by deception – being knowingly concerned in possession of drug of dependence with intent to sell or supply – application of Bui v The Queen [2015] ACTCA 5 – accumulation of sentences – non-parole period

R v Rheinberger (No 2) [2016] ACTSC 307; SCC 3 of 2015
Uploaded 20 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – offences against the person – recklessly inflict grievous bodily harm – offender intoxicated – offender found guilty of the charge – term of imprisonment imposed – suspended sentence – Good Behaviour Order.

Wilson v The Queen [2016] ACTCA 56
Uploaded 18 October 2016
APPEAL – CRIMINAL LAW – Sentencing – multiple historical child sexual assault and indecency convictions – stay of sentencing proceedings – bail – continuation of bail pending the hearing of the appeal – alleged inconsistencies of the verdicts – interventions by the trial judge – principles allowing interventions by the trial judge – consideration – poor health of the accused – serious medical condition – exceptional circumstances leading to a delay of sentencing

The Owners – Units Plan 239 v Australian Capital Territory (No 2) [2016] ACTSC 308
Uploaded 17 October 2016
PRACTICE AND PROCEDURE – Plaintiffs failed to comply with court orders – Affidavit of solicitor for the plaintiffs inadequate – Failed to provide full disclosure of facts giving rise to non-compliance – Standard of professional conduct required of solicitors – Failed to provide adequate explanation – Timetable varied – Indemnity costs order made

Miles v The Queen [2016] ACTCA 54 
Uploaded 17 October 2016
CRIMINAL LAW – appeal from a single judge of the Supreme Court – appeal against sentence – manifestly excessive – application of the principle of totality – application of the parity principle – errors in setting the non-parole period – errors of fact – failure to articulate objective seriousness of the offences – no merit in grounds of appeal – appellant re-sentenced to address sentencing errors by primary judge – appeal otherwise dismissed.

Hendricks v El Dik (No 5) [2016] ACTSC 302
Uploaded 14 October 2016
PRACTICE AND PROCEDURE – Application for stay of order pending appeal – Judgment in favour of plaintiff in personal injury proceedings – Disabled plaintiff – Where second defendant has offered to pay care and treatment expenses of the plaintiff pending determination of appeal – Where second defendant has already made significant payments – Balancing exercise – Timeframe for hearing and determination of the appeal – Stay granted on the condition that a further sum be paid to the plaintiff

Cressy v Miloriad [2016] ACTSC 303
Uploaded 13 October 2015
PERSONAL INJURY – Motor vehicle accident – Assessment of damages – Pre-existing degenerative condition of the hip rendered symptomatic by accident – Likelihood of requirement for hip replacement in any event – Loss of chance of promotion – Loss of sick leave – Turns on own facts

R v Eluga [2016] ACTSC 304; SCC 84 of 2016; SCC 85 of 2016; SCC 185 of 2012
Uploaded 13 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences of theft, obtain property by deception and unlawful possession of stolen property – pleas of guilty – significant criminal history – offending linked to use of illicit drugs – consideration under s 63 of the Crimes (Sentencing) Act of pre-sentence custody served as a sentenced prisoner – error in entry of earlier sentence orders by court staff – correction of earlier orders and re-sentencing.

Law v Ilievski [2016] ACTSC 291
Uploaded 12 October 2016
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court –manifestly excessive sentence – guilty plea – dishonesty offences – totality of sentence – sentence category discrepancy – consideration
CRIMINAL LAW – Judgment and Punishment – Sentencing procedure and evidence – character references – use - contents

R v KH [2015] ACTSC 339
Uploaded 12 October 2016
CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse without consent.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – whether the Crown is entitled to lead evidence that the accused had a tendency to have a particular state of mind, namely to exert domination and control through the use of physical force on the complainant – whether the Crown is entitled to lead evidence that the accused had a tendency to act in particular ways, namely to use violence against the complainant and to use violence against the complainant to have her submit to sexual intercourse without her consent – application allowed in part.

R v KH (No 2) [2015] ACTSC 348
Uploaded 12 October 2016
CRIMINAL LAW – Particular Offences – offences against children – sexual offences – sexual intercourse with a person under the age of 16 years – act of indecency on a person under the age of 10 years – act of indecency on a person under the age of 16 years.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – tendency to have a sexual interest in specific children – tendency to act on a sexual interest in specific children – relationship evidence – context evidence.

R v Chifuntwe [2016] ACTSC 301; SCC 22 of 2016
Uploaded 12 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts of obtain property by deception – withdrawal of money transferred from bank accounts of burglary victims – early pleas of guilty – tenuous connection between illicit drug use and offending – significant criminal history including offences after subject offences – offender currently serving sentences of imprisonment for other offences – offender seeking release via suspension rather than non parole period – non-parole period re-set – three fully suspended sentences of imprisonment and one partially suspended sentence of imprisonment.

Singh v Cooper [2016] ACTCA 55
Uploaded 12 October 2016
PERSONAL INJURY – assessment of damages – appeal from single judge of Supreme Court – primary judge awarded damages for future provision of unpaid services – primary judge awarded damages for future economic loss – primary judge assessed future economic loss as a buffer – whether damages should have been assessed on an arithmetical basis – adequacy of awards of damages – no error demonstrated by primary judge – appeal dismissed.

R v QI [2016] ACTSC 21
Uploaded 11 October 2016
CRIMINAL LAW – Particular offences – indecency in the presence of a young person under the age of 16 years – engaging in sexual intercourse with a person under the age of 16 years.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit relationship and or context evidence – where acts are not obviously sexual in nature – evidence of sexualised conversations initiated by accused – evidence the accused would confide in the complainant – evidence to show nature of the relationship – to contextualise delay in reporting – application allowed in part.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – application to admit tendency evidence – to have a sexual attraction to the complainant – to engage in sexualised conversation with the complainant – to engage in sexual conduct with the complainant – to normalise sexual interaction through the use of pornography – application allowed in part.

R v Ngerengere (No 4) [2016] ACTSC 300
Uploaded 11 October 2016 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Good Behaviour Order – Good Behaviour Order conditions – suspension from rehabilitation – inflexibility of Good Behaviour Order conditions – no breach of Good Behaviour Order

R v Cruz [2016] ACTSC 19
Uploaded 10 October 2016
CRIMINAL LAW – Particular Offences – offences against the person – engaging in sexual intercourse with a person under 10 years – indecency on person under 10 years.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – complainant unavailable witness under s 4(g) of the Evidence Act 2011 (ACT) – whether prior representations admissible – hearsay – s 65(2)(b) of the Evidence Act 2011 (ACT) – unlikely representation is a fabrication – relevant circumstances – DNA evidence – representation admissible.
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – complainant unavailable witness under s 4(g) of the Evidence Act 2011 (ACT) – whether prior representation admissible – hearsay – s 65(2)(c) of the Evidence Act 2011 (ACT) –  whether highly probable representation is reliable – representation excluded.

R v Kekalainen (No 3) [2016] ACTSC 297
Uploaded 10 October 2016 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – breach of Good Behaviour Order – driving whilst disqualified – admitted breach – subjective circumstances – consideration – deterrence

R v Rappel [2016] ACTSC 295
Uploaded 7 October 2016
CRIMINAL LAW – Particular Offences – offences against the person – murder. EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – s 90 of the Evidence Act 2011 (ACT) – disputed facts hearing – objection to evidence of conversations – conversations between accused and case manager at gaol – where admissions were made – evidence not excluded.

R v Gardner [2016] ACTSC 296
Uploaded 7 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – verdict – trial by judge alone – robbery – whether the accused used force on another person with the intent of escaping from the scene
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –trial by judge alone – alternative charge of theft – plea of guilty

Williams v Power [2016] ACTSC 293
Uploaded 7 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – proprety offences – burglary and theft – doctrine of recent possession – appeals dismissed.

Mortimer v Auswide Services Ltd T/as Caloola Farm (In Liquidation) [2016] ACTSC 282
Uploaded 6 October 2016
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – NATIVE TITLE – Land rights – recognition – jurisdiction
REAL PROPERTY – GENERAL PRINCIPLES – Acquisition of sovereignty – fee simple – extinguishment – Crown leaseholder – jurisdiction
CORPORATIONS – WINDING UP – Liquidation – interim injunction to restrain property sale dissolved COSTS – GENERAL PRINCIPLES – Notice of Discontinuance – consideration – impecunious litigant – public interest litigation – special costs order – r 1163 of the Court Procedure Rules 2006 (ACT)

R v Kamara [2016] ACTSC 29; SCC 23 of 2016
Uploaded 5 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure sexual activity with a person under 16 – sexual intercourse with a young person under 16 – possessing child pornography – pleas of guilty

Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46
Uploaded 5 October 2016
CIVIL LAW – interlocutory application – strike out application – r 5604(b) Court Procedures Rules 2006 (ACT) -- CIVIL LAW – interlocutory application – application for security for costs of appeal – r 5302 Court Procedures Rules 2006 (ACT)

Gillard v The Queen [2016] ACTCA 50
Uploaded 5 October 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentences – sexual offences – principle of restraint in re-sentencing following successful appeal against conviction – whether sentence manifestly excessive – whether primary judge erred in accumulation of sentences – whether “crushing” sentence amounts to error – whether discount provided for plea of guilty – impact of delay in finalisation of proceedings on appellant’s eligibility for parole – discretion to re sentence following finding of specific error – appeal upheld – appellant re-sentenced.

R v Fischetti (No 4) [2016] ACTSC 292
Uploaded 5 October 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – adjournment of sentence hearing

Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49
Uploaded 4 October 2016
CONTRACT – whether interest payable on loans – whether interest payable at Westpac indicator lending rate + 2% - whether implied tem that interest is to be calculated as compound interest.

McElholum v Hughes [2016] ACTCA 37
Uploaded 30 September 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – appeal against conviction and sentence


R v Hunt [2016] ACTSC 5
Uploaded 28 September 2016
CRIMINAL LAW - EVIDENCE – Similar Facts – tendency evidence – need to generalise the tendency exemplified by the evidence sought to be admitted – tendency described as relating to two named complainants could not justify admission of evidence relating to one complainant in relation to charges involving the other complainant – tendency reformulated.
EVIDENCE – Admissibility and Relevancy – tendency evidence – need   to generalise the tendency exemplified by the evidence sought to be admitted – tendency described as relating to two named complainants could not justify admission of evidence relating to one complainant in relation to charges involving the other complainant – tendency reformulated.

R v Kelly [2016] ACTSC 281
Uploaded 28 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – aggravated burglary – theft – intent to steal – consideration of breach – subjective circumstances – extensive criminal record – cancellation of Good Behaviour Order – cumulative custodial sentence

Samani v The Queen [2016] ACTCA 48
Uploaded 28 September 2016
APPEAL – CRIMINAL LAW – Manifestly excessive sentence – guilty plea – no prior convictions – general deterrence relevant factor – consideration of sentencing options – intensive correction order – requirements for a stay and bail – prospects of success of appeal – special or exceptional circumstances – expedited hearing – sentence stayed – bail granted

R v Franzi [2016] ACTSC 283; SCC 10 of 2016; SCC 66 of 2016
Uploaded 27 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – serious drug offences – trafficked in trafficable quantity of cannabis – manufacturing controlled drug – supply controlled drug to child – pleas of guilty – good prospects for rehabilitation – low risk of reoffending – sentenced to terms of imprisonment – Good Behaviour Orders imposed.

R v O’Rafferty (No 2) [2016] ACTSC 274
Uploaded 27 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fair trial – protected confidences – privacy protection – material produced in response to subpoena – medical records – examination of documentation – disclosure for the purposes of proceedings – public interest – s 62 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT)

R v Di Bitonto [2016] ACTSC 280; SCC 185 of 2015; SCC 186 of 2015
Uploaded 27 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – covert police operation – trafficking in methylamphetamine – consideration – subjective circumstances – extensive criminal history – serious offences – conditional liberty at the time of re-offending – guilty plea

R v Massey (No 2) [2016] ACTSC 278; SCC 90 of 2015
Uploaded 27 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – covert police operation – trafficking in methylamphetamine – consideration – subjective circumstances – extensive criminal history – serious offences – conditional liberty at the time of re-offending – guilty plea

In the matter of the adoptions of SC and QC [2016] ACTSC 268
Uploaded 23 September 2016
ADOPTION – Application to dispense with consent of birth mother – Birth father deceased – Whether requirements of s 35 Adoption Act 1993 (ACT) satisfied – Other circumstances that justify the requirement for consent to be dispensed with – Consent dispensed with

Scald Pty Ltd v Turner Developments Pty Ltd [2016] ACTSC 279
Uploaded 23 September 2016
PRACTICE AND PROCEDURE – pleadings – leave to amend defence – amendment not a defence to plaintiff’s claim – significant delay in seeking amendments – presumptive and possible actual prejudice – defendants’ defence doomed to fail – application to amend refused.

Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 4) [2016] ACTSC 288
Uploaded 23 September 2016
PRACTICE AND PROCEDURE – Application for a stay after judgment – Plaintiff successful in bringing claim for debt arising under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – Whether order preventing enforcement of judgment should be continued on the ground that plaintiff is insolvent – Set-off under s 553C of the Corporations Act 2001 (Cth) claimed – Where judgment amount likely to go directly to receiver –  Risk that defendant could be left as a creditor of a company without assets – Execution of judgment stayed until 21 days following the liquidator’s determination of proof of debt

McMillan v The Federal Capital Press of Australia Pty Ltd [2016] ACTSC 286
Uploaded 22 September 2016
DEFAMATION – Imputations – Application to strike out imputations in statement of claim – Whether imputations not reasonably capable of arising – Meaning influenced by reading article as a whole – Turns on own facts

R v Keir [2016] ACTSC 266; SCC 85 of 2014
Uploaded 22 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – re-sentence – breach of Good Behaviour Order – consideration of breach – committing further offence – offence of a different kind – aggravated burglary – cancellation of Good Behaviour Order – suspended sentence

R v Hoang [2016] ACTSC 272; SCC 123 of 2016
Uploaded 22 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a traffickable quantity of cannabis – consideration – no prior criminal history – guilty plea – non-citizen

R v Walshe [2016] ACTSC 267; SCC 54 of 2016
Uploaded 21 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – sexual offences – possession of child pornography – transmission of child pornography – pleas of guilty – reasonable prospects of rehabilitation – terms of imprisonment imposed.

R v Zhao [2016] ACTSC 284
Uploaded 21 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – bail application – s 20C Bail Act 2002 (ACT) – risk of flight – extra security

Giusida Pty Limited v Commissioner for ACT Revenue [2016] ACTSC 275
Uploaded 21 September 2016
APPEAL – DECISION BY AN ADMINISTRATIVE TRIBUNAL – ACT Civil and Administrative Tribunal – question of fact or law –evidence – expert evidence – hearsay evidence – form of questions and issues on appeal – requirement of “obvious” or a “manifestly obvious” error – consideration
REGULATION AND ADMINISTRATION – PLANNING – variation – valuation – comparable sales – costs of remediation of contamination – purchase by an adjoining owner – expert evidence

R v Ware [2016] ACTSC 264; SCC 60 of 2013; SCC 130 of 2014;  SCC 131 of 2014; SCC 218 of 2014;  SCC 284 of 2014
Uploaded 21 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing – breach of Good Behaviour Order – consideration of breach – subjective circumstances – multiple offences – cancellation of Good Behaviour Order – cumulative sentence – suspended sentence – new Good Behaviour Order –  community service work direction – reparation to victims

D’Arcy v Caltex Australia Petroleum Pty Ltd [2016] ACTSC 270
Uploaded 19 September 2016
LIMITATION PERIOD – Limitation Act 1985 (ACT), ss 16A, 16B – Determining applicable limitation provision – Claim against party other than the employer – s 16A not applicable where Territory or State of connection is New South Wales – Section 16B relevant provision of the Limitation Act

Kai Design & Constructions Pty Ltd v Mi [2016] ACTSC 269
Uploaded 19 September 2016
PRACTICE AND PROCEDURE – Application for a freezing order – Ancillary to arbitration proceedings – Awaiting delivery of awards – A good arguable case – Whether there is a risk of dissipation of the assets – Evidence insufficient to warrant freezing order – No ancillary orders

Dawson v Fryer [2016] ACTSC 263
Uploaded 16 September 2016
PERSONAL INJURY – motor vehicle accident – liability admitted – assessment of damages – whether past loss of employment opportunity – no evidence to support claim for future economic loss – damages awarded.

Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited [2016] ACTSC 271
Uploaded 16 September 2016
RESTITUTION – Quantum meruit – Plaintiff identified potential sponsor for sports team – Plaintiff provides sponsorship proposal prepared by team to potential sponsor and meets with with representatives of sponsor – Sponsorship agreement entered with team – Whether actions of plaintiff caused or contributed to sponsorship – Whether plaintiff entitled to reasonable remuneration assessed as percentage of value of sponsorship – Actions of plaintiff had no causal effect on entry into sponsorship agreement – Claim for quantum meruit fails

Pengelly-Emtage v Lee [2016] ACTCA 44
Uploaded 14 September 2016
DAMAGES – General Principles – appeal by plaintiff from award of damages for negligence arising from motor vehicle accident – whether primary judge erred in declining to award damages for loss of earning capacity – whether primary judge gave adequate reasons in choosing between contradictory expert opinions –  adverse credibility findings in relation to evidence of appellant and his mother – onus of establishing injury productive of economic loss – appeal dismissed.

R v Poile [2016] ACTSC 262
Uploaded 13 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judge alone trial – attempted aggravated robbery – s 310 Criminal Code 2002 (ACT) – identification evidence

Atmore v Milner [2016] ACTSC 260
Uploaded 12 September 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against conviction – appeal against sentence – licence disqualification – allowance for guilty plea – adequate reasons not given for sentence -- CRIMINAL LAW AND PROCEDURE – SENTENCING – Manifestly excessive sentence – failure to take into consideration impact of licence suspension – considerations where sentence to be imposed – interference with employment – financial hardship on employer – protection of community

Cavo Pty Ltd v Simon Corbell, Minister for the Environment and Sustainable Development [2016] ACTCA 45
Uploaded 9 September 2016
ADMINISTRATIVE LAW – Appeal from first instance judgment dismissing challenge to Minister’s approval of a development application – whether report concerning economic impact of development an “associated document” under s 30 of Planning and Development Act – whether appellants denied procedural fairness or natural justice in relation to Minister’s decision – whether Minister’s decision invalid on basis of failure to publish report – whether appellants had any entitlement to natural justice – whether any practical injustice resulted from failure to publish report – whether Minister failed to take account of relevant consideration – whether Minister’s decision unreasonable – whether Minister made error of law.

R v Agostino [2016] ACTSC 234; SCC 124 of 2016; SCC 126 of 2016; SCC 164 of 2014
Uploaded 9 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving offences – burglaries – theft – significant criminal history – overwhelming subjective factors

R v Newman; R v Reid [2016] ACTSC 102;  SCC 68 of 2015, SCC 69 of 2015, SCC 70 of 2015; SCC 71 of 2015
Uploaded 9 September 2015
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – co offenders – assault occasioning actual bodily harm – affray – offences objectively serious – premeditated – in company – in a public place – members of outlaw motorcycle gang – discount for guilty pleas – assessed suitable for intensive correction orders – community service condition – non-association order

Bennett v Australian Capital Territory [2016] ACTSC 258
Uploaded 8 September 2016

LIMITATION PERIOD – Limitation Act 1985 (ACT), s 30B – Application to amend originating claim and statement of claim – Whether new cause of action statute barred – Meaning of “injury”, “accident”, “disease or disorder” – Where it is unclear whether a limitation period has expired following the commencement of proceedings – Court will first decide whether amendment could be permitted under r 503(4) Court Procedure Rules 2006 (ACT) – If not permitted under r 503(4), Court may decide it is nevertheless appropriate to grant leave to make the amendment, but for amendment to only take effect from the date of the application to grant leave.

PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim – Addition of claim of brain damage arising from pleaded negligence - Whether new cause of action

PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim – New cause of action relating to feeding difficulties during period after previously pleaded negligence - Whether new cause of arises out of substantially the same facts as the original statement of claim – Where temporal disconnect between allegations pleaded and allegations sought to be made – Where evidentiary facts that would need to be covered as part of the existing claim would extend to those facts from which new cause of action can be said to arise – Management of the plaintiff’s feeding problems arise out of substantially the same facts.

PRACTICE AND PROCEDURE – Application to join treating doctors as second and third defendants – Not possible to find that existence of a limitation defence would render the joinderfutile – Leave granted.

R v Cruz (No 2) [2016] ACTSC 259; SCC 198 of 2015
Uploaded 8 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person under 10 – act of indecency in the presence of a person under 10 – guilty by jury after trial – very young victim – 2 years and 10 months old – single incident – non-penetrative sexual conduct

Freeman-Quay v The Queen [2016] ACTCA 43
Uploaded 7 September 2016
CRIMINAL LAW – appeal from a single judge of the Supreme Court – trial by judge alone – offence of grievous bodily harm – appeal against conviction – conviction unreasonable having regard to all of the evidence – reasonable possibility another person hit the complainant – appeal against conviction upheld.  -- CRIMINAL LAW – appeal from a single judge of the Supreme Court – offences against the person – assault occasioning actual bodily harm – plea of guilty – appeal against sentence – manifestly excessive – sentence not unreasonable – sentence not plainly unjust – appeal dismissed.

R v Ferguson [2016] ACTSC 255; SCC 65 of 2015
Uploaded 6 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – serious drug offences – trafficking in controlled drug – trafficking in methylamphetamine – criminal history with same type of offences – plea of guilty – reasonable prospects of rehabilitation – Intensive Corrections Order imposed.

R v Tomas; R v Milenkovic [2016] ACTSC 254; SCC 189 of 2015 (Tomas); SCC 190 of 2015 (Milenkovic)Uploaded 6 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – serious drug offences – cultivating controlled plants – cultivating controlled plant for selling, namely cannabis – pleas of guilty – good prospects for rehabilitation – low risk of reoffending – sentenced to terms of imprisonment – Good Behaviour Orders imposed.

R v Sheedy [2016] ACTSC 256; SCC 219 of 2015
Uploaded 6 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – offences against the person – sexual offences – engaging in sexual intercourse with a person under 16 years – found guilty after trial by jury – no prior convictions – offender immature – conduct not predatory – reasonable prospects for rehabilitation – general deterrence – Good Behaviour Order imposed

R v Samani [2016] ACTSC 257; SCC 114 of 2016, SCC 115 of 2016 Uploaded 6 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – fraudulent conduct – obtaining financial advantage by deception – producing false or misleading documents – administration of justice offences – obstructing or hindering investigation – pleas of guilty – no prior convictions – significant degree of planning and premeditation – general deterrence relevant factor – term of imprisonment imposed.


R v EL [2016] ACTSC 241; SCC 199 of 2014
Uploaded 5 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – one count of recklessly inflicting grievous bodily harm – late plea of guilty – history of violent offending – offender exposed to significant trauma during childhood – offender suffering symptoms of Post Traumatic Stress Disorder at time of offence – connection between moral culpability of offender and objective seriousness of offence – sentence of imprisonment to be served by intensive correction order.

R v McCracken [2016] ACTSC 253; SCC 266 of 2015
Uploaded 5 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious aggravated robbery on supermarket – armed and in company

R v Lill [2016] ACTSC 252; SCC 116 of 2016; SCC 117 of 2016
Uploaded 5 September 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in heroin – possession of property reasonably suspected of being unlawfully obtained – low objective seriousness – extensive criminal history and substance abuse

Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 3) [2016] ACTSC 249
Uploaded 2 September 2016
COSTS – Where an offer of settlement made – Whether defendant’s failure to accept offer was unreasonable in the circumstances – Offer unambiguous – Reasonableness of defendant’s non-acceptance must be judged against evident policy of the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – Defendant to pay plaintiff’s costs of the proceedings on solicitor and client basis after date for acceptance of offer

COSTS – Intervener – Intervention by the Attorney-General pursuant to Judiciary Act 1903 (Cth) s 78A, Court Procedures Act 2004 (ACT) s 27 – Whether intervener entitled to costs of hearing – Whether discretion to make orders for costs in favour of Attorney-General exists where statutory provisions only refer to orders against Attorney-General – Not necessary to decide –Where case involved constitutional issues significant for the government of the Territory – Where Attorney-General chose to intervene – Circumstances not sufficient to warrant costs order in the Attorney-General’s favour

The Legal Practitioners v Council of the Law Society of the ACT [2016] ACTSC 248
Uploaded 31 August 2016
PROFESSIONS AND TRADES – Lawyers – complaints and discipline – disciplinary proceedings – commenced in the ACT Civil and Administrative Tribunal (ACAT) – Statement of Reasons not provided by Law Society – legal practitioners commenced proceedings under Administrative Decisions (Judicial Review) Act 1989 (ACT) – ACAT proceedings on foot – Law Society rescinded decision to commence disciplinary proceedings – proceedings discontinued by consent in Supreme Court – assessment of costs – application for indemnity costs – processes of Law Society flawed – costs awarded on party/party basis.

R v NC [2016] ACTSC 245; SCC 36 of 2001; SCC 112 of 2016
Uploaded 30 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – armed robbery – s 101 Crimes Act 1900 (ACT) – early plea of guilty – limited prospects of rehabilitation – lengthy criminal history

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – riding in a vehicle without authority – s 120(1) Crimes Act 1900 (ACT)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of recognizance – armed robbery – s 101 Crimes Act 1900 (ACT) – re-sentencing

Drakakis v Makas [2016] ACTSC 247
Uploaded 29 August 2016
COSTS – Proceedings involved an application for the making of a statutory will – Parties members of an extended family – Proceedings were discontinued following discovery of a valid will – Where testator had deliberately kept existence of will secret from the plaintiff – Where plaintiff had a substantial, albeit indirect, interest in the making of the proposed statutory will – Not appropriate to conduct hypothetical trial to assess strength of plaintiff’s application – Circumstances meant application was arguable until discovery of will – No order as to costs of the plaintiff

COSTS – Public Trustee appointed to represent first defendant pursuant to s 24(1) of the Public Trustee and Guardian Act 1985 (ACT) – First defendant to pay costs of Public Trustee as between solicitor and client and in accordance with s 24(2) of the Public Trustee and Guardian Act 1985 (ACT)

COSTS – Where second defendant not named in originating application – Only joined as party after commencement of proceedings on application of her solicitor – Strength of application not determinative of costs issue – While second defendant could have performed role of contradictor, she also had an interest in opposing application – No order as to costs of the second defendant

LE v SX (No 3) [2016] ACTSC 243
Uploaded 29 August 2016
PRACTICE AND PROCEDURE – Application to set aside previously made orders – Where orders not yet entered – Orders related to decision to refuse extension of time in which to bring an appeal from Magistrates Court – Whether applicant denied natural justice due to hearing deficit – Whether leave should have been given to applicant to make written submissions – Procedurally fair hearing does not require party to be given an opportunity to make written submissions – Whether applicant prevented from completing oral submissions – No denial of procedural fairness – Application dismissed

Redmond v Masterton Canberra Pty Limited [2016] ACTSC 242Uploaded 29 August 2016
COSTS – Exercise of costs discretion under Court Procedures Rules 2006 (ACT), rr 1706 and 1163 – Whether there should be any order for costs in favour of either party where substantive proceedings discontinued – Default rule under r 1163(1) that costs paid by discontinuing party – Not appropriate to decide merits of the case in order to resolve issue of costs – Default rule may be departed from where settlement occurs as a result of an agreement not involving surrender by either party – Neither party acted unreasonably in relation to the dispute – No order as to costs

Huggard v Murray [2016] ACTSC 246
Uploaded 29 August 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Appeal against conviction – s 138 of the Evidence Act 2011 (ACT) – s 23V of the Crimes Act 1914 (Cth) – whether evidence was incorrectly admitted

Holliday v The Queen [2016] ACTCA 42
Uploaded 26 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Extension of criminal liability – whether offence known to law – incite to kidnap
CRIMINAL LAW – PARTICULAR OFFENCES – Offences relating to administration of justice – attempt – attempting to pervert the course of justice
STATUTES – STATUTORY INTERPRETATION – Attempt – Criminal Code 2002 (ACT) s 44(2) – “more than merely preparatory”
STATUTES – STATUTORY INTERPRETATION – Operation – effect of ss 45 and 47 Criminal Code 2002 (ACT) – whether limitation or qualifying provision



DI v Australian Capital Territory [2016] ACTSC 239Uploaded 25 August 2016
PRACTICE AND PROCEDURE – Application to amend statement of claim and document identifying the plaintiffs’ case entitled “Plaintiffs’ Facts” – Where amendment to introduce an allegation of sexual assaults by foster parent – Amendments sought only in relation to damages recoverable, not to defendant’s breach of duty of care – Whether damage suffered as a result of the assaults constitutes damage flowing from the negligence of the defendant – No appropriate to determine application based on hypothetical assessment of whether or not plaintiff capable of establishing facts necessary for recovery of damages – Delay in making claim cannot be ignored as a factor relevant to whether grant of leave appropriate – Where delay results in significant procedural prejudice and risk of vacation of hearing date – Plaintiff has an apparently good cause of action against foster parent as principal tortfeasor – Application dismissed
Wreck Bay Aboriginal Community Council v Williams [2016] ACTSC 240Uploaded 25 August 2016
SPECIAL CASE – land rights – statutory interpretation – whether the Residential Tenancies Act 1997 (ACT) is capable of operating concurrently with the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth) within the meaning of s 46 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 (Cth)

R v White [2016] ACTSC 237; SCC 110 of 2016Uploaded 22 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – use carriage service to access child pornography – early plea of guilty

Cooke v Rixon [2016] ACTSC 236
Uploaded 22 August 2016
PRACTICE AND PROCEDURE – Application to amend originating claim and statement of claim to substitute nominal defendant as defendant – Claim involving a hit and run – Whether a mistake made in the name or identity of a party – Application of general principles dependent on evidence in particular case – No mistake as to identity – Mistake at to which vehicle was responsible – Therefore no power to amend under   r 503(2) of the Court Procedures Rules 2006 (ACT) – No leave granted to amend application in proceeding to join nominal defendant – Application dismissed

Thompson v Desmond [2016] ACTSC 214Uploaded 22 August 2016
APPEAL – Appeal from decision of Magistrates Court – Magistrate’s decision involved review of Deputy Registrar’s assessment of costs – Whether Magistrate erred in failing to determine point of principle raised by plaintiff in the review -- PROCEDURE – COSTS – Appeal from decision of Magistrates Court – Magistrate’s decision involved review of Deputy Registrar’s assessment of costs – Assessment of costs following consent judgment – Where plaintiff rejected mandatory final offer – Where consent judgment made in same terms a mandatory final offer – Bill of costs –  Defendants objected to costs claimed after making of mandatory final offer – Whether  those costs were fair and reasonable for the attainment of justice – Court Procedures Rules 2006 (ACT), r 1751(2) – Deputy Registrar does not have power to reduce costs that are otherwise fair and reasonable by having regard to the terms of a mandatory final offer

Clarkson v St Vincent De Paul Samaritan Services [2016] ACTSC 235
Uploaded 22 August 2016
APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal from decision of ACT Administrative Appeal Tribunal – Where original tribunal decision involved a denial of procedural fairness – Failure to give reasons – desirability of informing parties of entitlement to obtain reasons – Existence of internal appeal within ACAT provided opportunity to remedy any denial of procedural fairness – Lack of evidence before the Court as to what happened at the hearing of the internal appeal – Onus on appellant to demonstrate case for appeal –  No question of fact or law identified – Application dismissed

Astell v Australian Capital Territory [2016] ACTSC 238
Uploaded 22 August 2016
STATUTORY INTERPRETATION – Whether plaintiff whose house was sold by an unidentified fraudster can recover damages from Territory under Land Titles Act 1925 (ACT), s 155 – What “remedy by action for recovery of damages” is provided for in Pt 16 – Meaning of “inapplicable” – Where evidence demonstrates little to not prospect of fraudster ever being identified – Remedies in ss 154, 143 inapplicable where fraudster cannot be identified because plaintiff cannot bring proceedings against an unidentified person -- DAMAGES – Test to be applied – Plaintiff to be put in the position she would have been but for the fraud – Value of property to be assessed according to current market value – Sale price does not reflect market value as fraudster cannot be considered a willing seller in an arms length transaction – Plaintiff entitled to market value of property, net loss of rent and transaction costs for purchase of equivalent house

Millard v The Queen (No 2) [2016] ACTCA 41
Uploaded 22 August 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal against sentence – sentence manifestly excessive – recording of sentence – backdating – pre-sentence custody – notional commencement date – miscalculation of head sentence – correction under slip rule

R v Thorn [2016] ACTSC 217; SCC 24 of 2016
Uploaded 19 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – dishonesty offences – submitting false tax return – causing loss to Commonwealth – deliberate conduct – planning and premeditation – course of conduct – deterrence -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – offender’s subjective circumstances – traumatic childhood – physical and sexual abuse – history of substance abuse – mental impairment – psychiatric treatment order – compliance with medication – offender seeking rehabilitation -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – inter-jurisdictional sentencing – interaction between Commonwealth and Territory sentences – s 19 of the Crimes Act 1914 (Cth) – no break between sentences – sentence commences immediately after end of non parole period

R v Munro [2016] ACTSC 222
Uploaded 19 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of Good Behaviour Order – re-offending – original good behaviour period almost completed – Good Behaviour Order now expired – new Good Behaviour Order made

R v Walker; R v Walker [2016] ACTSC 232; SCC 151 of 2015; SCC 152 of 2015
Uploaded 19 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – offences against the person – demands accompanied by threats – firearms licences – unauthorised possession or use of a firearm – good prospects for rehabilitation – pleas of guilty – sentenced to terms of imprisonment fully suspended – Good Behaviour Orders – community service condition.

ACT Director of Public Prosecutions v Tomas [2016] ACTSC 223
Uploaded 19 August 2016
CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for restraining order – confiscation of criminal assets -- CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – confiscation of criminal assets – law reform – procedural provisions in primary legislation – generally undesirable – alternative measures

R v Goold (No 1) [2016] ACTSC 95; SCC 7B of 2014 ; SCC 242 of 2014
Uploaded 19 August 2016
- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  particular offence – offences against the person – sexual offences – act of indecency upon a person under the age of 10 years -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  particular offence – offences against the person – sexual offences – act of indecency upon a person above the age of 10 years but under the age of 16 years -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  particular offence – offences against the person – sexual offences – sexual intercourse with a person under the age of 16 years

R v Goold (No 2) [2016] ACTSC 228; SCC 7A of 2014
Uploaded 19 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – common assault

R v Stone [2016] ACTSC 231; SCC 79 of 2015
Uploaded 19 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular offences – offences against the person – sexual offences – indecent assault on a male – guilty after trial by jury – previous conviction for same offence – significant delay in reporting – offender’s age and ill health relevant factor – offender has rehabilitated himself since offences – underlying psychological considerations – sentenced to a term of imprisonment – balance suspended – Good Behaviour Order.

Dykes v Bunnings Group Limited (No 2) [2016] ACTSC 226Uploaded 19 August 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Extension of time to commence proceedings – finding extension of time ‘just and reasonable’ not a matter of discretion – discretion to extend time

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – NEGLIGENCE – Extension of time to commence proceedings failure to seek legal advice – workers compensation claim made– delayed deterioration of condition – unaware of rights to common law claim – no deliberate choice not to pursue

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Extension of time to commence proceedings – prejudice to defendant – actual prejudice subsumes presumptive prejudice – passage of time – relevant material unavailable – alleged unavailability of witnesses – no evidence of further attempts to contact witnesses – attempts to obtain documentary evidence not comprehensive – causation – medical notes available

R v Lee [2016] ACTSC 233;  SCC 226 of 2015 Uploaded 18 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – murder – theft – guilty pleas

Stott v The Queen [2016] ACTCA 36Uploaded 18 August 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – BAIL – Stay – Special or exceptional circumstances - prospects of success of appeal– possible termination of tenancy – arrange accommodation for family members – arrange for care of pets – potential loss of possessions – temporary stay and bail

R v NF (No 1) [2016] ACTSC 216; SCC 40 of 2016; SCC 41 of 2016
Uploaded 17 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentencing – drug offences – importing border controlled drug – purchasing drugs online – trafficking in controlled drug – supplying drug of dependence– damaging property – possessing firearm – possessing prohibited weapon – possessing property unlawfully suspected of being stolen – theft – suspended sentence – recognizance release order – Good Behaviour Order – reparation order -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentencing – young offender – principles of sentencing young offenders – immaturity – rehabilitation

R v NF (No 2) [2016] ACTSC 227
Uploaded 17 August 2016
JUDGMENTS AND ORDERS – JURISDICTION, PRACTICE AND PROCEDURE – amendment – sealed court order – accidental slip or omission – slip rule – r 6909 of the Court Procedures Rules 2006 (ACT)

Leader Joinery Pty Ltd v Cosgrave Soutter [2016] ACTSC 210Uploaded 17 August 2016
CORPORATIONS LAW – Company – Statutory demand – Application to set aside demand – Whether genuine dispute as to indebtedness – Assessing genuineness – No issue of principle -- CORPORATIONS LAW – Company – Statutory demand – Where genuine dispute about debt – Whether supporting affidavit sufficient – Corporations Act 2001 (Cth), s 459H

R v ND [2016] ACTSC 224; SCC 248 of 2015
Uploaded 16 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawfully take away a child – aided aggravated burglary – Intensive Correction Order

Beaver v Bolton [2016] ACTSC 218
Uploaded 16 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – driving with prescribed concentration of alcohol in breath – failure to consider non-conviction order – no previous convictions – appellant’s character – early guilty plea – appeal upheld – appellant re-sentenced.

R v McCurley [2016] ACTSC 219; SCC 111 of 2016Uploaded 16 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Particular Offences – property offences – aggravated burglary – burglary – theft – early pleas of guilty – drug dependency issues – reasonable prospects of rehabilitation – terms of imprisonment imposed.

R v CC (No 2) [2016] ACTSC 220; SCC 236 of 2015
Uploaded 16 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – offences against the person – sexual offences – good prospects for rehabilitation – plea of guilty – specific deterrence – sentences imposed for similar offences –  degree of concurrency and accumulation – term of imprisonment imposed.

Dimech v Watts [2016] ACTSC 221
Uploaded 16 August 2016
CRIMINAL LAW – PRACTICE AND PROCEDURE – appeal from Magistrates Court – statutory interpretation – application of principle of Expressum facit cessare tacitum – imposition of a community service order by a State or Territory Court under Commonwealth legislation

Calvary Hospital Auxiliary Inc v D’Amico [2016] ACTCA 39
Uploaded 15 August 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Nature of appeal – re-hearing -- CIVIL LAW – NEGLIGENCE – Personal injury – employer’s duty of care – employee reported injury – inadequate response by employer – employers unaware of occupational health and safety obligations – failure to conduct risk assessment – failure to take preventative measures – failure to provide safe place and system of work – breach of duty -- DAMAGES – explanations for calculations not explicit in judgment – assessment of interest on past economic loss – future economic loss – adjustments for future employment prospects – partial incapacitation for work – failure to establish availability of suitable work

Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 2) [2016] ACTSC 215
Uploaded 15 August 2016
Denham Constructions Pty Ltd v Islamic Republic of Pakistan (No 2) [2016] ACTSC 215 (12 August 2016) Mossop AsJ – Supreme Court of the ACT - BUILDING AND CONSTRUCTION – Claim of debt arising under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) from a failure to serve a payment schedule in response to a payment claim – Whether an email was sufficient to constitute a payment schedule for the purposes of the Act – Email failed to comply with the requirements set out in ss 16(2) and (3) – Email not a payment schedule – Whether progress claim invalid under s 15(5) of the Act – Where amounts claimed related to work or entitlements under the contract which arose prior to the date of the progress claim – Where contract provided for monthly progress payments – No invalidity under s 15(5) -- BUILDING AND CONSTRUCTION – Whether payment claim amounted to an abuse of process – Whether repeating of variation claims previously accepted or rejected in an earlier payment claim was an abuse of process – Even where a claim has previously been made, unless it has been the subject of adjudication, it may be claimed again subsequently – Whether adjusting the costs arising from extension of times claims was an abuse of process – No abuse of process -- CONSTITUTIONAL LAW – Whether the Building and Construction Industry (Security of Payment) Act 2009 (ACT) applies to building work on the Pakistani High Commission – Scope of legislative power of the Australian Capital Territory legislature in relation to areas classified as National Land –  Restrictions on Territory’s legislative power under self-government legislation not applicable – Commonwealth power to make laws with respect to National Land does not amount to a qualification on powers given under s 22 of the Constitution – CONSTITUTIONAL LAW – Seat of government – Exclusive legislative power of Commonwealth Parliament – Scope of the seat of government for the purposes of s 52(i) – Significance of Territory being surrendered and accepted under s 111 – Legislation relating to the seat of government empowered by plenary power

Barrett v The Queen [2016] ACTCA 38
Uploaded 12 August 2016
APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentences manifestly excessive – individual sentences – accumulation – nonparole period – no specific error identified

Brisciani v Piscioneri (No 4) [2016] ACTCA 32
Uploaded 12 August 2016
DEFAMATION – Statements amounting to defamation – whether statements published online capable of bearing defamatory meaning – whether plaintiff is identifiable in publications – whether publications amount to mere abuse – fair comment – privilege – whether comments relate to matters of public interest – whether publications trivial – damages – whether award of aggravated damages appropriate – whether award of damages appropriate – articulation of separate basis of award

Brisciani v Piscioneri (No 3) [2016] ACTCA 31Uploaded 12 August 2016
PROCEDURE – Courts and judges generally – Application for recusal – Apprehended bias not established

Brisciani v Piscioneri (No 2) [2016] ACTCA 24
Uploaded 12 August 2016
APPEALS – JURISDICTION, PRACTICE AND PROCEDURE –Application for the disqualification of a judge – allegation of bias – form of bias not identified – judicial case management – statement of fact not pre-judgment – no actual bias – judge hearing case involving same party – no reasonable apprehension of bias

Brisciani v Piscioneric (No 1) [2016] ACTCA 30
Uploaded 12 August 2016
APPEALS – JURISDICTION, PRACTICE AND PROCEDURE – Bias – apprehended bias – judge part-heard in separate matter involving applicant – where legal issues do not intersect – credit not in issue

Piscioneri v Reardon [2016] ACTCA 33
Uploaded 12 August 2016
APPEALS – LEAVE TO APPEAL – Jurisdiction, practice and procedure – whether decision is final or interlocutory – where leave to appeal required – appeal out of time – leave not granted
LIMITATION OF ACTIONS – POSTPONEMENT OF BAR – Defamation cases – ss 21B, 33 Limitation Act 1985 (ACT) – where identity concealed – operation of provisions

R v SV [2016] ACTSC 211; SCC 99 of 2015 ; SCC 101 of 2015
Uploaded 10 August 2016
CRIMINAL LAW – PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – act of indecency without consent – guilty verdict following trial by jury -- CRIMINAL LAW –  PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offence – offences against the person – sexual offences – sexual intercourse without consent – guilty verdict following trial by jury

Legal Practitioner v Law Society of the ACT [2016] ACTSC 203
Uploaded 9 August 2016
JURISDICTION, PRACTICE AND PROCEDURE – statutory interpretation – application to strike out appeal as incompetent – whether decision of the President of ACAT is a decision of an appeal tribunal or a tribunal – definition of ‘appeal tribunal’ – where the meaning of the term ‘tribunal’ should not have conflicting meanings within the same rule

Strano v Australian Capital Territory (No 2) [2016] ACTSC 206
Uploaded 8 August 2016
PROCEDURE – Costs – court’s discretion to make no order as to costs in a “test case” – whether plaintiff’s action a “test case” – proceedings asserted to be for the primary objective of testing scope of statutory cause of action under Human Rights Act in comparison to common law action for wrongful imprisonment – relevance of plaintiff seeking compensation to determination of whether action a “test case” – action not a “test case” – plaintiff to pay defendant’s costs.

Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 35
Uploaded 8 August 2016
PROFESSIONS AND TRADES – Lawyers – appeal against findings of professional misconduct – appeal from single judge of the Supreme Court – where practitioner seeks to agitate a different issue than was before the primary judge – practitioner had to demonstrate an error on part of the primary judge – no error demonstrated – issue raised by the practitioner was not before the primary judge – analysis of evidence reveals no merit in appeal grounds – appeal dismissed. -- PROFESSIONS AND TRADES – Lawyers – Law Society cross-appeal – where the ACAT determined penalty without hearing submissions from the practitioner – where the ACAT reopened the proceedings – where the practitioner contended the ACAT was functus officio – where the practitioner did not make submissions at the further hearing on penalty – where the primary judge found there were no “extraordinary circumstances” within the meaning of s 56(c)(iii) of the ACAT Act to reopen the proceedings – whether considerations of efficiency constitute “extraordinary circumstances” – ACAT entitled to reopen proceedings on basis of procedural fairness – failure of the ACAT to afford the practitioner procedural fairness constitutes “extraordinary circumstances” – ACAT entitled to reopen proceedings – cross-appeal allowed.

R v Slater [2016] ACTSC 198; SCC 250 of 2015; SCC 251 of 2015; SCC 142 of 2012 Uploaded 8 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in methylamphetamine – summary offences transferred – on conditional liberty – guilty plea -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence – breach of good behaviour order – trafficking in methylamphetamine – trafficking in cannabis

Ayres v Ford [2016] ACTSC 204
Uploaded 8 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – sentencing – drug-driving – whether sentence manifestly excessive – appeal allowed

TW v Simpson [2016] ACTSC 207
Uploaded 5 August 2016
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with discretion of Court below – appeal from sentence imposed in Childrens Court for offence of common assault – conviction recorded – whether sentence manifestly excessive – whether Magistrate misapplied s 17 of Crimes (Sentencing) Act – whether Magistrate failed to take into account considerations relevant to the sentencing of young offenders – significance of offender’s in-court behaviour – appeal dismissed.

Lutz v JK [2016] ACTSC 200
Uploaded 4 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Punishment – young offender – s 17(2) Crimes (Sentencing) Act 2005 (ACT) – non-conviction order an exceptional outcome – negligent driving causing death – whether sentence manifestly inadequate -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Procedural fairness – sentencing – parties not afforded opportunity to address on penalty – where outcome not contemplated by parties

Fleury v Symon [2016] ACTSC 201
Uploaded 4 August 2016
APPEALS – CRIMINAL LAW – Nonparole period – whether nonparole period was manifestly excessive – when nonparole period should commence -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Crimes (Sentencing) Act 2005 (ACT) s 61 – orders made in chambers – parties not given opportunity to be heard

Australian Capital Territory v Lewis [2016] ACTCA 34Uploaded 4 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – appeal from single judge of the Supreme Court – primary judge held that  sentence of periodic detention not extended where respondent had not performed periodic detention whilst on bail – whether respondent failed to perform periodic detention for the purposes of s 58(1)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) – whether grounds for a permanent stay of respondent’s sentence existed – appeal from discretionary order for costs.

R v Ingram [2016] ACTSC 199; SCC 47 of 2013
Uploaded 4 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – initial offence of recklessly inflicting grievous bodily harm – good behaviour order made when sentence of imprisonment suspended – offending through contraventions of domestic violence order in breach of good behaviour order – second breach of good behaviour order since original sentencing – unaddressed alcohol abuse relevant to commission of initial offence and breach offences – good behaviour order cancelled – offender re-sentenced – intensive correction order made.

R v Pretorius [2016] ACTSC 181Uploaded 3 August 2016
CRIMINAL LAW – Evidence – similar facts – tendency application – whether complainant’s uncorroborated evidence of uncharged acts has significant probative value in relation to assessment of complainant’s credibility – whether complainant’s evidence of uncharged acts may be used via tendency reasoning in assessment of whether accused mistook complainant’s identity – evidence inadmissible for tendency purposes.

R v Lander [2016] ACTSC 197; SCC 278 of 2015 
Uploaded 3 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – assessed unsuitable for intensive corrections order

R v Rowland; R v Herceg [2016] ACTSC 192; SCC 246 of 2015; SCC 247 of 2015; SCC 268 of 2015Uploaded 3 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious aggravated robbery on supermarket – armed and in company - CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving motor vehicle taken without consent – accessory after the fact to robbery – driver of getaway car

Crimmins v Pearson [2016] ACTSC 195
Uploaded 3 August 2016
CRIMINAL LAW – APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against conviction – driving with a prescribed concentration of alcohol in breath – driving without seatbelt fastened – failure to appear following bail undertaking – further charges dismissed – no evidence offered – complaint that dismissal of charge denied opportunity to challenge evidence – alleged abuse of process – dismissal of charge does not prejudice hearing of other charge – summary offence – guilty plea – facts of offence admitted

R v Brymer [2016] ACTSC 194; SCC 74 of 2016Uploaded 2 August 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of arson – offence occurring in context of domestic argument – offence committed with intention of frightening partner – absence of further aggravating features – plea of guilty – indication of remorse – no relevant criminal history – general deterrence a significant consideration – suspended sentence of imprisonment.

R v Vosikata [2016] ACTSC 193
Uploaded 2 August 2016
CRIMINAL LAW – Particular offences – offences against the person – murder – plea of guilty – disputed facts hearing – point of contention is inferences to be drawn from admitted facts – open to the prisoner to adduce further evidence at sentence hearing – inappropriate to make findings where further evidence may be adduced.

Brunoro v Brunoro (No 3) [2016] ACTSC 189
Uploaded 2 August 2016
TORTS – Claim of assault – Altercation involving a banana cutter – Where plaintiff and third defendant provided inconsistent versions of events –Evidence supported third defendant’s version of events – Claim for damages refused – No issue of principle - TORTS – Claim of assault – Where plaintiff suffered fractured humerus – Second defendant claimed to have acted in self-defence – Whether actions were reasonable actions of self-defence – Burden of proof – Balance of evidence insufficient for second defendant to satisfy onus of proof – Plaintiff awarded damages - TORTS – Detinue – No evidence of the demand for return of the chattels – Plaintiff permitted to collect any items that he wanted – No evidence that the defendants had actual possession – Claim dismissed - TORTS – Trespass – Removal of electrical fuses from property – Where plaintiff had no equitable interest in the property – Plaintiff was not a tenant and only had possession of a small part of the property – Second defendant acting as agent of the owner – Claim dismissed - FAMILY PROVISION AND MAINTENANCE – Claim under the Family Provision Act 1969 (ACT) – Whether adequate provision for the proper maintenance, education or advancement in life of the plaintiff made under the will – Age not a barrier to obtaining an order for provision – Claim made against a modest state – Plaintiff obtained substantial benefits under the will and throughout his life from his parents – Other beneficiaries considerably younger than the plaintiff – Claim dismissed

R v King [2016] ACTSC 191; SCC 44 of 2016
Uploaded 29 July 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – property damage offences – attempted arson – intoxicated at time of offence – co-offender – plea of guilty – remorse – substance abuse issues – prior criminal history – general deterrence – term of imprisonment imposed – suspended sentence – Good Behaviour Order – community service condition.

R v Potts [2016] ACTSC 190; SCC 209 of 2015
Uploaded 29 July 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – dishonesty offences – lodging a false income tax return – offences committed in custody – plea of guilty – significant criminal history – terms of imprisonment imposed.

R v QI (No 2) [2016] ACTSC 188; SCC 191 of 2015
Uploaded 29 July 2016 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offences – sexual intercourse with person under 16 years – intoxication – abuse of position of trust – low risk of re offending

R v Murray [2016] ACTSC 173; SCC 108 of 2016
Uploaded 29 July 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – in company – strong subjective factors – disadvantaged background and youth

R v DM [2014] ACTSC 377
Uploaded 27 July 2016
CRIMINAL LAW – Evidence – discretion to exclude evidence obtained improperly – forensic officer collected evidence from scene of fire not considered suspicious – no search warrant sought before suspicions arose – police investigation subsequently begun – powers of fire investigator to remove items from scene – no impropriety established – evidence admitted.

R v DD (No 2) [2016] ACTSC 178; SCC 175 of 2013; SCC 19 of 2012; SCC 20 of 2012 Uploaded 27 July 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breaches of good behaviour order made when sentence of imprisonment was suspended after being partially served in custody – breaches involved further offending – young offender at time of initial offence – multiple breaches of original good behaviour order – significant criminal history – significance of drug and alcohol abuse in offending – offender re-sentenced – sentence of imprisonment backdated to account for time previously served and to allow some concurrency with other sentences.

Hostile Takeovers Pty Ltd v Hudson [2016] ACTSC 185
Uploaded 27 July 2016
APPEALS – CRIMINAL LAW – Whether sentence manifestly excessive – insanitary and unclean premises – s 27(1) Food Act 2001 (ACT)

R v A [2016] ACTSC 187; SCC 185 of 2013
Uploaded 27 July 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – young person – on conditional liberty – failure to accept supervision – further offences committed

Jones v University of Canberra (No 3) [2016] ACTSC 186 Uploaded 27 July 2016
PRACTICE AND PROCEDURE – DIRECTIONS – case management -- CIVIL LAW – PRACTICE AND PROCEDURE – Leave to amend Statement of Claim – details in Statement of Claim subject to claim of privilege – Statement of Claim filed as provisional document until privilege claim determined -- PRACTICE AND PROCEDURE – Judge knows witness – credit of witness in issue – recuse from hearing -- PRACTICE AND PROCEDURE – Non-publication order – scope of order – inspection of documents on court file – preparation of case using information subject to non-publication order – provision of confidential statements to potential witness – affidavit not evidence until read -- PRACTICE AND PROCEDURE – PARTICULARS – principles governing particulars – further and better particulars– names of witnesses are evidence – party not required to provide names of witnesses unless essential element in case – party must provide best particulars it can – particulars not to fill gap in pleading – leave to reformulate pleading – particulars must show details of special damage claimed - -- EVIDENCE – PRACTICE AND PROCEDURE – SUBPOENA – application to amend subpoena – Notice to Produce

Dunstan v Higham (No 2) [2016] ACTCA 28 Uploaded 27 July 2016
PRACTICE AND PROCEDURE – application to set aside Court of Appeal judgment – r 1613 (2)(d) Court Procedures Rules 2006 (ACT)

Klootwijk v Hipwell [2016] ACTSC 182
Uploaded 27 July 2016
APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Appeal against conviction

R v DM [2016] ACTSC 179
Uploaded 26 July 2016
CRIMINAL LAW – Jurisdiction, practice and procedure – verdict – trial by judge alone – offences of arson, attempt to dishonestly obtain property by deception and dishonestly obtain property by deception – circumstantial case – whether a rational hypothesis consistent with innocence exists – whether proposition that cause of fire is undetermined is a rational hypothesis – whether asserted lies by the accused are “Edwards lies” constituting evidence of consciousness of guilt – accused guilty of all counts. -- CRIMINAL LAW – Evidence – expert evidence – need for expert opinion to be reached by reference wholly or substantially to specialised knowledge – exclusion of portions of reports containing reasoning and conclusions not reached through reference to specialised knowledge.

The Owners – Units Plan No 1917 v Koundouris (No 3) [2016] ACTSC 184 Uploaded 26 July 2016
COSTS – Exercise of costs discretion under Court Procedures Rules 2006 (ACT), r 1721 – Costs will ordinarily follow the event – Whether apportionment of costs appropriate where plaintiff’s claim only partially successful – Multiple causes of action arising out of single set of facts – Effect of purported offer of compromise – Whether it operates as a Calderbank offer – Apportionment not appropriate – Costs follow the event – Position of second defendant controlled by first defendant or his family – No separate costs order in relation to second defendant

Sirohi v The Queen [2016] ACTCA 29
Uploaded 26 July 2016
JURISDICTION, PRACTICE and PROCEDURE – Appeal against sentence – two offences of sexual intercourse without consent – whether the sentence is manifestly excessive – whether the principle of totality was correctly applied – where no specific error identified – appeal dismissed

R v Hoang [2016] ACTSC 183; SCC 160 of 2015 ; SCC 161 of 2015
Uploaded 26 July 2016
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – trafficking in controlled substance other than cannabis, namely heroin – s 603(7) Criminal Code 2002 (ACT) – sentence of full-time imprisonment imposed – partially suspended -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – resisting a Territory official – s 361 Criminal Code 2002 (ACT)

R v Barrett [2016] ACTSC 167; SCC 26 of 2015; SCC 27 of 2015
- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in burglary – on conditional liberty – very strong subjective circumstances – lengthy criminal history -- CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Parole – offence committed while on parole – high risk of re-offending – unknown rehabilitation prospects – high nonparole period imposed – parole conditions specified

Quzag v The Queen (No 4) [2015] ACTCA 27Uploaded 25 July 2016
APPEAL – CRIMINAL LAW – Appeal against sentence – cultivating a trafficable quantity of cannabis – manifest excess – comparable cases – consideration of sentences for more serious offences – different subjective circumstances – parity – roles of co-offenders differed – sentence contrary to law – combination sentence – full time custody and pe