Judgments and Sentences

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

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

 

Recent Court of Appeal, Supreme Court judgments and sentences:

  
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28 March 2024

Walsh (a pseudonym) v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2024] ACTSC 81

STATUTES – INTERPRETATION – Consideration of legislative amendments responding to the Royal Commission into Institutional Responses to Child Sexual Abuse – statutory interpretation of pt 8A.3 of the Civil Law (Wrongs) Act 2002 (ACT) – meaning of “legal barriers” to person being fully compensated – meaning of “or” – principles applicable to determining whether an agreement is “not a just and reasonable agreement”

CIVIL LAW – PRACTICE AND PROCEDURE – Application to set aside abuse settlement agreement – where deed of release entered into to settle child sexual abuse claim – where limitation period had expired – where plaintiff prevented from exercising an action on a cause of action – whether deed of release is not a just and reasonable agreement – considerations – deed of release set aside

The Supreme Court has set aside an abuse settlement agreement entered into between the plaintiff and the Catholic Archdiocese of Canberra and Goulburn which settled a child sexual abuse claim. The abuse is alleged to have occurred whilst the plaintiff was a child parishioner of the St Vincent de Paul Catholic Church in Aranda in the ACT.

The Court was required to apply the new provisions contained in pt 8A.3 into the Civil Law (Wrongs) Act 2002 (ACT), which commenced operation on 22 December 2022, and on which there was yet to be any decisions by this Court on their proper interpretation. In determining the construction which best promoted the purpose of the new provisions, the Court had regard to the reports and recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, the legislative responses to the Royal Commission in other domestic jurisdictions, and reports of the parliamentary debates in the ACT Legislative Assembly.

Ultimately, the Court was satisfied that the plaintiff faced multiple legal barriers to being fully compensated when he entered abuse settlement agreement and that, in all of the circumstances, the agreement was not a just and reasonable agreement and should be set aside.

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28 March 2024

Elvin v Vuleta [2024] ACTSC 84

EVIDENCE – PRIVILEGES – Legal professional privilege – Evidence Act 2011 (ACT) – pre-trial discovery – whether litigation or advice privilege attaches

PRACTICE & PROCEDURE – PLEADINGS – Defences – denial of allegations – whether better particulars required

The Supreme Court has upheld a claim for client legal privilege and dismissed an application seeking further particulars of a defence in a proceeding involving claims of breach of statutory duty, unconscionable conduct, conspiracy and professional negligence.  The plaintiff in the proceeding was a director of a company that he put into voluntary administration.  The defendants are the administrators appointed and the solicitor who advised them during the course of the administration.

The parties had engaged in discovery processes.  In respect of documents to be discovered by them, the administrators consented to present the documents to the plaintiff (that is, they waived any claim to legal privilege).  However, the solicitor maintained a claim to legal privilege on behalf of the administrators in respect of the solicitor’s file.

The Court held that the material over which privilege was claimed comprised confidential communications and documents under the provisions of the Evidence Act 2011 (ACT), because they were prepared for the dominant purpose of legal advice or litigation.

The Court further held that although the plaintiff’s pleading put in issue the defendants’ state of mind, mere relevance to a fact in issue was insufficient to bring about loss of the privilege and there was no suggestion of any fraud or abuse of power.

Nevertheless, a direction was made to permit the administrators to consider whether they maintained their objection to the discovery of documents held by the solicitor, given their earlier consent in respect of documents held by the administrators.

In relation to the application for better particulars, the Court held that the Defence filed by the administrators was not defective because it complied with the relevant rules, and therefore dismissed the application.

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28 March 2024

DPP v Vidanaralalage [2024] ACTSC 61

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Principle of incontrovertibility – where accused subject of charges on indictment and transfer charges for closely related alleged conduct – where accused acquitted on all charges on indictment – where transfer charges remain to be disposed of – whether open to prosecution to continue to prosecute transfer charges – Director of Public Prosecutions seeks to withdraw transfer charges – transfer charges dismissed

The Supreme Court has dismissed three summary charges of common assault after the accused was acquitted on four related indictable charges.

Earlier this month, a jury found the accused not guilty on all four indictable charges, however, there remained a question of how best to dispose of the remaining summary charges. Unlike indictable charges, there is no statutory provision which empowers the DPP to file a Notice Declining to Proceed on summary charges. The DPP pointed to a previous decision where it was held that proceeding with the prosecution of summary charges after an accused is acquitted of related indictable charges would amount to an abuse of process. In those circumstances, and given the closely related nature of the charges, the DPP sought to withdraw the summary charges.

The court noted the DPP’s intention and dismissed the summary charges to make clear that they had been finalised.

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28 March 2024

DPP v Hambilton [2024] ACTSC 70 (SCC 298 of 2023; SCC 299 of 2023; SCC 69 of 2024; SCC 70 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – theft – minor theft – burglary – childhood disadvantage – Bugmy considerations – rehabilitation – not suitable for Drug and Alcohol Treatment Order – imposition of term of imprisonment – nonparole period imposed

The Supreme Court sentenced an offender who has been committed to the Supreme Court for sentence for the purposes of assessments for a Drug and Alcohol Treatment Order. The offender was found to be not suitable for the Drug and Alcohol Treatment Order and chose to not press for the Drug and Alcohol Treatment Order. The offender asked to be sentenced in the Supreme Court. The Court sentenced the offender based on the nature, features and objective seriousness of the offences, and imposed a term of imprisonment of 22 months with 11 months nonparole period to account for the subjective circumstances and trauma experienced by the offender.

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26 March 2024

Simmons (a pseudonym) v Wheeler (a pseudonym) (No 2) [2024] ACTSC 51

PRACTICE AND PROCEDURE – JURISDICTION – Allegations of historic sexual and physical abuse – plaintiffs and second and third defendants all children at the time of alleged abuse – where alleged conduct said to have taken place entirely in Queensland – Queensland limitation laws apply as part of the substantive law of the location of the tort

PRACTICE AND PROCEDURE – LIMITATION – Limitation of time to bring claim – applications to amend defences to include defence of statutory limitation by s 11 of Limitation of Actions Act 1974 (QLD) – whether s 11A of same Act defeats defence of s 11 statutory limitation – question better answered at trial and not at preliminary stage – applications allowed

The Supreme Court has allowed the applications of two defendants to amend their defences to incorporate an argument based on a limitation provision in the Queensland Limitation of Actions Act. The conduct is alleged to have taken place in Queensland between 1975 and 1980, which means that Queensland limitation laws will apply to the proceedings. The defendants sought to plead that s 11 of the Queensland Act applied to impose a three-year limitation period on claims for personal injury and, hence, that the proceedings were statute barred. The plaintiffs, on the other hand, contended that s 11A of the Queensland Act applied instead, and that that provision removed the limitation period for proceedings alleging sexual or serious physical abuse of a child. The court reasoned that the defendant’s argument was not obviously hopeless and that it should be decided at trial, rather than in the abstract or on particular assumptions. The court therefore allowed the applications, noting that doing so would not materially affect the preparation for, or timing of, a trial.

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25 March 2024

DPP v JJ (No 2) [2024] ACTSC 74 (SCC 296 of 2022)

CRIMINAL LAW – Judgment and Punishment – Sentence – joint commission aggravated robbery – where offender on conditional liberty – whether suspended sentence should be imposed – application of young offender principles to original sentence for murder – limited sentencing options in respect of further offending – offender re-sentenced to promote rehabilitation and transition to community – term of imprisonment imposed for further offending without a non-parole period

The Supreme Court has resentenced an offender for murder and imposed a sentence for the further offence of aggravated robbery by joint commission.  A term of imprisonment was imposed for a total of 18 years. The resentencing occurred as a result of a breach of a suspended sentence, which was the aggravated robbery, committed while the offender was subject to a good behaviour order.

The young offender sentencing provisions applied in respect of the murder offence, but for the aggravated robbery offence, the offender was sentenced as an adult. In sentencing the offender, the Supreme Court discussed the principles relevant to assessing the gravity of the offence and the limited options available to manage the offender’s integration into the community after a lengthy term of imprisonment.  The sentence for murder was partially suspended from November 2024, after the full 2 years and fourth months term of imprisonment for the aggravated robbery sentence has been served.

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22 March 2024

Agarwal v Coutts [2024] ACTSC 71

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – repeat application – whether there are change of circumstances – change of circumstances present – whether special or exceptional circumstances exist favouring grant of bail under s 9E of the Bail Act 1992 (ACT) – underdosage of relevant medication – prison has run out of relevant medication – forthcoming medical appointments potentially relevant to upcoming appeal of sentence – special and exceptional circumstances found – bail granted

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22 March 2024

DPP v Djerke (No 2) [2023] ACTSC 341 (SCC 227 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – aggravated burglary - Bugmy principles – significant history of illicit substance use – where the offender has significant family support – where the offender has demonstrated willingness to address addiction – offender assessed as suitable for a Drug and Alcohol Treatment Order – where pre-sentence custody taken into account but sentence is not backdated - Drug and Alcohol Treatment Order imposed

Offender sentenced to 3 years and 8 months imprisonment to be served by way of Drug and Alcohol Treatment Order.

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20 March 2024

DPP v Booth (No 2) [2024] ACTSC 64 (SCC 323 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – family violence – Drug and Alcohol Treatment Order – s 80ZH review – treatment and supervision part cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – suspended sentence – rehabilitation – Good Behaviour Order

The Supreme Court has resentenced an offender for assault occasioning actual bodily harm aggravated in context of family violence after the offender’s Drug and Alcohol Treatment Order was cancelled for unsatisfactory performance. The Court considered that the offender had rehabilitated with significant progress since the cancellation of the Treatment Order, and took into account the commitments the offender demonstrated on the rehabilitation program while on bail post cancellation. The Court imposed a Good Behaviour Order with six months supervision.

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19 March 2024

DPP v Houghton [2024] ACTSC 68 (SCC 31 of 2023)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – recklessly inflict actual bodily harm – late plea to substitute charge – medium objective seriousness – where rehabilitation and victim’s interests may be appropriately taken into account by way of restorative justice.

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15 March 2024

In the matter of the adoption of NS [2024] ACTSC 65

ADOPTION – application to dispense with requirement for consent of birth parents to adoption of six-year-old child by her foster carers – where child has resided with the same foster carers since infancy – where no realistic prospect of child establishing any relationship with birth parents – dispensation order made

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15 March 2024

Deng v Australian Capital Territory [2024] ACTCA 10

Judgment summary

APPEAL – MAGISTRATES – Jurisdiction and procedure generally – appeal against finding that Magistrates Court had jurisdiction to order remand of appellant – appellant arrested for breach of Special Interim Family Violence Order – jurisdiction of Magistrates Court to hear proceedings alleging breach of Special Interim Family Violence Order – whether jurisdiction of Magistrates Court dependent upon Special Interim Family Violence Order being in force at the time of the alleged offence – court has jurisdiction to hear and determine allegation of breach of Special Interim Family Violence Order – appeal dismissed

CRIMINAL LAW – PARTICULAR OFFENCES – Miscellaneous offences and matters – allegation of breach of s 43(2) of the Family Violence Act 2016 (ACT) arising from Special Interim Family Violence Order – conditions of Special Interim Family Violence Order expressed to continue only “until all related charges are finalised” – whether the order itself or only the specified conditions of the order ended when “all related charges” were finalised – Special Interim Family Violence Order only ended by operation of s 30 of the Family Violence Act 2016 (ACT)

HUMAN RIGHTS – APPEAL – Appeal against finding that remand order was not arbitrary – remand order based upon available statutory power, defendant represented and reasons for refusal of bail given – remand order not capricious or unreasoned – appeal dismissed

The Court of Appeal has dismissed an appeal by a man who was arrested in 2019 and charged with breaching a Special Interim Family Violence Order (SIFVO) which was in effect at the time. The appellant was remanded in custody but, after 58 days, he was released because the restrictions in the SIFVO which he had been charged with breaching had ended some months earlier. The appellant sued the Territory, the Magistrates Court, and the two magistrates who made the remand orders on a variety of causes of action.

The appellant first argued that, because the restrictions had ended, the SIFVO itself had ended, or, even if the SIFVO was still in effect, that the two magistrates had acted without jurisdiction by making remand orders because the restriction which he was charged with breaching had ended. The primary judge rejected these arguments and found that just because certain restrictions of an SIFVO might end, the SIFVO itself could only be ended by operation of the Family Violence Act. The primary judge further reasoned that, even though the charge would ultimately have been impossible to make out, it was still within the jurisdiction of the Magistrates Court to hear any arguments related to the charge and to deal with the appellant in the meantime—including by making remand orders where appropriate. The Court of Appeal agreed with the primary judge on both points.

The appellant next argued that the remand order was arbitrary within the meaning of the Human Rights Act, asserting that even if the detention was lawful, it was nevertheless possible to be arbitrary. The primary judge had rejected this argument, saying that the detention was not capricious or unreasoned. The appellant now pointed to the case of Barrio v Spain (which had not been decided at the time of handing down the primary judgment) to support his ground of appeal that the detention in fact was arbitrary. The Court of Appeal dismissed this argument, distinguishing the current case from Barrio in that the latter involved a systemic delay and a lack of procedural safeguards, and the applicant in that case had been “diligent in exhausting the available remedies”.

Finally, the appellant argued that the primary judge had failed to consider the effect of s 40C of the Human Rights Act on his claim, which relates to legal proceedings in relation to public authority actions. However, the Court of Appeal pointed to the judicial carveout in the Human Rights Act that provides that the Magistrates Court is not considered a public authority except when acting in an administrative capacity. When the Magistrates Court is acting judicially, as it was in the present case, it does not come within the scope of s 40C.

The appeal was unanimously dismissed.

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15 March 2024

Porter v The Queen [2024] ACTCA 9

Judgment summary

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – adequacy of reasons – unattributed copying of prosecution submissions in primary judgment – reasons read as a whole indicate that primary judge gave independent and impartial consideration to the evidence and issues – ground dismissed.

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – factual findings in relation to aggravating feature of offence – effect of credibility assessment of reliability of estimate - evidence unable to support estimate of number of occurrences of abuse – limited utility of calculation of precise number of occasions of sexual offending in respect of an offence of engaging in a sexual relationship with a child under special care – ground upheld – appellant resentenced.

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manifest excess – limited utility of classifying offences within hypothetical range – importance of maximum penalty as yardstick – grooming offence - sentence manifestly excessive – appellant resentenced.

The Court of Appeal has unanimously allowed an appeal against sentences imposed for child sexual offending in respect of several victims.

The Court dismissed ground 1, which alleged that the primary judge’s reasons concerning the frequency and nature of sexual abuse of one victim were inadequate. The Court found that the reasons sufficiently demonstrated that the primary judge independently considered the issues.

However, the Court upheld ground 2 of the appeal, finding that the primary judge’s conclusions regarding the frequency of sexual abuse were not reasonably open. The Court emphasised, however, that the gravamen of such offending is the breach of trust, rather than the number of occasions of abuse. The Court also found that the sentence imposed in respect of a grooming offence was manifestly excessive.

The appellant was resentenced to a total of 17 years’ imprisonment with a non-parole period of 11 years.

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15 March 2024

Kovalenko (a pseudonym) v Wallace (a pseudonym) [2023] ACTSC 375

CIVIL LAW – PRACTICE AND PROCEDURE – Application for order dismissing proceedings – application for order staying proceedings – application for order that certain evidence be inadmissible at hearing – no question of principle - application for costs – applications dismissed

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14 March 2024

Burnett v 3 Property Group 10 Pty Ltd (No 3) [2024] ACTSC 57

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Amendments to pleadings to join additional defendants and plaintiffs – plaintiffs seek to amend pleadings to join current and past directors of the defendant as additional defendants and to join additional plaintiffs – pleadings seek to run claim similar to class action in circumstances where legislation and rules do not clearly permit that to occur – plaintiffs propose to run proceedings with “sample plaintiffs” and “group plaintiffs” – pleadings deficient, contain drafting inconsistencies and inadequacies – question of joinder should be determined in the context of adequate pleadings – application dismissed

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – Parties – plaintiffs assert claim in contract against defendant – plaintiffs seek to join up to 27 additional parties as further plaintiffs to proceedings – not all additional parties had contractual relationship with defendant

The Supreme Court has dismissed an application by the plaintiffs in a claim against 3 Property Group that sought to join an additional 27 plaintiffs to the claim and would have seen something similar to a class action being run against the company. The court found that class actions were not provided for in statute or under the Court Procedures Rules and there were too many deficiencies contained within the plaintiffs’ pleadings to allow the joinder and amendments.

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14 March 2024

DPP v Sibley (No 2) [2024] ACTSC 45 (SCC 284 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – forcible confinement and aggravated robbery offences – joint commission – agreement to unlawfully confine victim and to extract anything of value – where co-offender had lent money, items and drugs to the victim and sought repayment by force – offender had subordinate role in the offending – consideration of mental health issues – suspended sentence and good behaviour order imposed

The Supreme Court has sentenced an offender to 15 months’ imprisonment, wholly suspended upon entry into a good behaviour order for two years and on the condition that she be subject to supervision on probation by the Director‑General. The offending involved forcible confinement and aggravated robbery. The offender and two co-offenders had an agreement to unlawfully confine the victim and extract anything of value, in circumstances where the co-offender had lent money, items and drugs to the victim and sought repayment by force. The offender played a subordinate role in the offending. The court considered the offender’s mental health issues in arriving at the appropriate sentence.

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14 March 2024

DPP v Hyde [2024] ACTSC 44 (SCC 343 of 2022; SCC 344 of 2022; SCC 199 of 2023; SCC 200 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – forcible confinement, aggravated robbery and drug trafficking offences – joint commission – agreement to unlawfully confine victim and to extract anything of value – where offender had lent money, items and drugs to victim and sought repayment by force – offender motivated to address drug addiction – long-term interests of community served by rehabilitation – where offender has already spent 483 days in custody – sentence by way of intensive correction imposed

The Supreme Court has sentenced an offender to forty months’ imprisonment, to be served by way of an intensive correction order and a fine. The offending involved forcible confinement, aggravated robbery and drug trafficking offences. The offender and two co-offenders had an agreement to unlawfully confine the victim and extract anything of value, in circumstances where the offender had lent money, items and drugs to the victim and sought repayment by force. The court considered the offender’s motivation to address her drug addiction and determined that the long-term interests of the community were best served by the offender’s rehabilitation. In circumstances where the offender had already spent 483 days in custody, the court considered that a sentence to be served by intensive correction was appropriate.

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13 March 2024

DPP v Sims [2024] ACTSC 49 (SCC 307 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – forcible confinement – aggravated robbery – childhood disadvantage – references to Bugmy Bar Book – rehabilitation – Drug and Alcohol Treatment Order imposed

The Supreme Court has sentenced an offender for aggravated robbery and forcible confinement committed in joint commission with other co-offenders. The Court considered the seriousness of the offending, including the role in which the offender took in the commission of these offences, the offender’s childhood trauma and history of substance abuse, and principles of parity and rehabilitation. The Court imposed a Drug and Alcohol Treatment Order.

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13 March 2024

Bourke v Styche [2024] ACTSC 62

APPEAL – CRIMINAL LAW – Review appeal under Magistrates Court Act 1930 (ACT), s 219D(c) – multiple charges of acts of indecency – appeal brought on basis that decision should not in law have been made – whether appeal incompetent – whether failure to give adequate reasons – where reasons did not identify factual and legal issues in dispute – error established – whether residual discretion should be exercised – where no delay by Prosecution in bringing the appeal – where no double jeopardy established – appeal allowed – charges remitted to a different magistrate in the Magistrates Court

PRACTICE AND PROCEDURE – CRIMINAL LAW – review appeal under Magistrates Court Act 1930 (ACT), s 219D(c) – meaning of “the decision should not in law have been made” – whether confined to jurisdictional error

The Supreme Court has upheld a review appeal brought by the Prosecution from orders made in the Magistrates Court dismissing 10 charges of acts of indecency, involving a number of complainants over the course of 6 days in 2020.

The Supreme Court found that the reasons of the Magistrate were inadequate because they did not resolve the material factual conflicts in the evidence, nor provide any explanation for any such resolution.

In the course of finding that error of law was established for a failure to give reasons, the court discussed the nature of a review appeal under s 219B and 219D of the Magistrates Court Act.

The Supreme Court further exercised its discretion to have the matter remitted to a different magistrate given the competing evidence between the complainant’s and the accused and the error in law.

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7 March 2024

DPP v King [2024] ACTSC 59 (SCC 153 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sex offences – sexual intercourse without consent – act of indecency without consent – maintain sexual relationship with young person – three victims – where offender is currently serving sentence of imprisonment for like offences against other victims – Bugmy considerations – offender now elderly and in poor health.

The Supreme Court has sentenced an offender for eight counts of historic child sex offences relating to three victims. The offender was a cricket coach who took advantage of young aspiring cricketers. The offender is now elderly and in poor health, and is currently serving sentences  of imprisonment for numerous similar offences against other victims.

The Court took into account the seriousness of the offending, which was prolonged, planned, and pre-meditated; the offenders disadvantaged background; and principles of totality. The Court imposed an overall head sentence of 23 years’ imprisonment.

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7 March 2024

DPP v Weldon (No 2) [2024] ACTSC 60

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of Good Behaviour Order – offender unable to be located – application for issue of warrant – where Good Behaviour Order made as part of Drug and Alcohol Treatment Order – whether warrant should be issued for breach of Good Behaviour Order under s 104 of the Crimes (Sentence Administration) Act 2005 (ACT) or breach of Drug and Alcohol Treatment Order under s 80ZJ of the Crimes (Sentencing) Act¬ 2005 (ACT) – Drug and Alcohol Treatment Order remains extant – warrant issued under s 80ZJ.

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7 March 2024

KQE v DPP [2024] ACTCA 7

APPEAL – CRIMINAL LAW – Appeal against sentence – sexual intercourse with a child under 10 years of age – sexual intercourse with a child under 16 years of age – whether specific error in relation to the assessment of objective seriousness – evidence of mistaken age – moral culpability – conditional liberty – no error established – appeal dismissed

The Court of Appeal has dismissed an appeal against a sentence imposed by the Supreme Court for an offence of engaging in sexual intercourse with a child under 16 years of age.

The appellant alleged that the sentencing court failed to consider the appellant’s subjective belief of the age of the victim, and erred in taking into account conditional liberty, in assessing the objective seriousness of the offence.

The Court found that the sentencing judge did not fail to consider the subjective belief of the offender and that there was no error.

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6 March 2024

DPP v Pah Eh [2024] ACTSC 55 (SCC 253 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – persistent sexual abuse of a child – early guilty plea – consideration of the influences on the offender as he was developing – finding of reduced moral culpability – significant consequences for complainant – where general deterrence of prime importance – term of imprisonment imposed

The Supreme Court has sentenced an offender to a period of imprisonment of 2 years and 3 months with a non-parole period of 1 year and 3 months for the persistent sexual abuse of a child.

In considering the objective gravity of the offences, the Court noted, amongst other things, that the there was an obvious maturity and power imbalance between the offender and complainant given their different stages of life, the offender was in something of a position of trust, and that the offender repeatedly ignored the complainant’s protestations.

The Court was required to take into account the influences on the offender as he was developing and the behaviour that was considered normal as he was growing up in a refugee camp. Ultimately, the Court considered that despite a finding of reduced moral culpability, given the objective gravity of the offences, nothing less than a sentence of immediate imprisonment was required.

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5 March 2024

DPP v Ware [2024] ACTSC 52 (SCC 60 of 2013; SCC 130 of 2014; SCC 131 of 2014; SCC 218 of 2014; SCC 284 of 2014; SCC 129 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse without consent – breaches of good behaviour orders – lengthy criminal history – where offender supplied victim with drugs – where offender actually knew victim was not consenting – sentences of imprisonment imposed – sentences to be served concurrently

The Supreme Court has sentenced an offender to a period of imprisonment of 4 years with a non-parole period of 3 years for two counts of sexual intercourse without consent and a number of breaches of good behaviour orders.

In considering the objective gravity of the offences of sexual intercourse without consent, the Court noted that the offences occurred in the context of the offender supplying the victim with drugs, that the offender did not use a condom on either occasion, and that the offences were committed whilst the offender was subject to a number of good behaviour orders previously imposed by the Court as part of suspended sentences. The Court took into account the offender’s troubled background, long-term problems with drug use, mental health troubles, and the work and courses the offender had successfully completed on remand.

Ultimately, the Court considered that given the objective gravity of the offences, the offender’s lengthy criminal history and lack of remorse, a sentence of immediate imprisonment was appropriate. The Court also accepted it was appropriate to impose the sentences which were suspended and for them to be served concurrently.

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4 March 2024

Drumgold v Board of Inquiry & Ors (No. 3)

CIVIL LAW – JUDICIAL REVIEW –  Application for judicial review of findings by Board of Inquiry concerning prosecution by plaintiff of criminal charge – natural justice – apprehended bias – whether fair-minded observer might reasonably apprehend that Board of Inquiry might not have brought impartial mind to determination of issues concerning conduct of plaintiff of prosecution of the charge – legal unreasonableness – whether findings by Board of Inquiry legally unreasonable – whether plaintiff afforded reasonable opportunity to be heard on issues determined by Board of Inquiry – availability of declaratory relief.

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4 March 2024

Director of Public Prosecutions v Druett [2024] ACTSC 56 (SCC 1 of 2024; SCC 2 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle at police – drive unlicensed – low objective seriousness – prospects for rehabilitation – application of Bugmy  principles – suspended sentence imposed

The ACTSC has sentenced an offender for the offences of drive motor vehicle at police and drive unlicensed. The offending did not involve the offender driving a motor vehicle at a police officer, but rather involved the offender driving near a police officer recklessly. The offending was therefore considered to be less objectively serious. The offender received an overall sentence of 9 months imprisonment, suspended after 4 months imprisonment upon entry into a 12 month Good Behaviour Order.

The Court ordered that the offender engage with culturally appropriate support services as a condition of the Good Behaviour Order after suspension of the gaol term.

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4 March 2024

DPP v Shillingsworth [2024] ACTSC 40 (SCC 186 of 2022; SCC 187 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aiding and abetting arson – offender assisted principal offender to start fire at the doors of Old Parliament House during a public protest – fire caused significant damage to the building – consideration of political protest context – offender held leadership role in the protest – offending went beyond the types of protest which may be dealt with leniently due to significance of public protest as a part of democracy – effect of sentence on dependents – suspended sentence and good behaviour order imposed

The Supreme Court has sentenced an offender to 18 months’ imprisonment, wholly suspended on the condition that the offender enter into a good behaviour order for three years and six months and pay a fine of $8000. The offending occurred in the context of political protests at Old Parliament House. The offender aided and abetted another offender to start a fire at the doors of Old Parliament House, which caused significant damage to the building. The court determined that the offending went beyond the types of protest which may be dealt with leniently due to the significance of public protests as an inherent part of democracy. In arriving at the appropriate sentence, the court considered the effect of the sentence on the offender’s dependents.

The court also fined the offender in relation to a series of transfer charges that arose in the course of aiding and abetting the arson, and required that he enter into a good behaviour order for a period of 12 months.

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1 March 2024

May v Commonwealth [2024] ACTCA 6

Judgment summary

CRIMINAL LAW – APPEAL – Charge of failing to comply with health and safety duty under s 32 of the Work Health and Safety Act 2011 (Cth) – Commonwealth convicted by magistrate but acquitted on appeal to single judge – prosecution appeal to the Court of Appeal – helicopter pilot died following fall into crevasse at fuel cache site in Antarctica – prosecution asserts reasonably practicable measures to ensure safety of worker were not undertaken – determination of whether proposed measures were “reasonably practicable” – whether proposed measure referring to “minimal crevassing” was reasonably practicable – meaning of “minimal crevassing” uncertain – lack of evidence of capacity to interpret satellite data – whether repetition of suite of measures to determine safety of fuel cache site was reasonably practicable – acquittal of Commonwealth not shown to be wrong – appeal dismissed

CRIMINAL LAW – JURISDICTION – Helicopter company contracted to Commonwealth to provide helicopter services in Antarctica – charge of breach of s 32 of the Work Health and Safety Act 2011 (Cth) – company acquitted by magistrate – prosecution appeal to Supreme Court – whether Supreme Court has jurisdiction to hear appeal against acquittal on Commonwealth summary offence – whether review appeal by prosecution under Pt 3.10.3 of the Magistrates Court Act 1930 (ACT) picked up by s 68(2) of the Judiciary Act 1903 (Cth) – issue not necessary to decide in circumstances where dismissal of charges against the Commonwealth require the dismissal of charges against the helicopter company in any event

The Court of Appeal has dismissed a prosecution appeal against the acquittal of the Commonwealth on charges of failing to comply with a health and safety duty, under s 32 of the Work Health and Safety Act 2011 (Cth). The Commonwealth was convicted on two charges by the trial magistrate but acquitted on appeal by a single judge of the Supreme Court. The charges arose out of the death of a helicopter pilot who died after falling into a crevasse at a fuel cache site in Antarctica. The prosecution asserted that the Commonwealth failed to take a package of reasonably practicable measures to ensure the safety of the worker. To succeed, the prosecution had to establish that the whole package of measures was reasonably practicable.

The Court of Appeal held that a proposed measure referring to “minimal crevassing” was not reasonably practicable, as the meaning of the term “minimal crevassing” was uncertain. The Court also found that a proposed measure that involved review of satellite data could not be reasonably practicable given the lack of evidence of the Australian Antarctic Division’s capacity to interpret such satellite data. Finally, the Court found that the requirement to repeat the package of measures was not reasonably practicable as it relied on the uncertain concept of a “significant weather event” to trigger its operation. In those circumstances, the appellant failed to demonstrate that the acquittal of the Commonwealth involved error.

The Court also dismissed an appeal against the acquittal of Helicopter Resources Pty Ltd, a company that provided helicopter services to the Commonwealth in Antarctica and which employed the pilot that died. The prosecution asserted that Helicopter Resources was obliged to ensure that the Commonwealth carried out the package of measures. It was agreed between the parties that if the appeal against the Commonwealth was dismissed, the appeal against Helicopter Resources could not succeed. The appeal against the acquittal of Helicopter Resources was therefore dismissed.

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1 March 2024

DPP v Malibe [2024] ACTSC 43 (SCC 287 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – aggravated burglary – theft by way of joint commission – damaging property by way of joint commission – young offender – focus on rehabilitation – commercial premises rather than residential premises – financial hardship – all property recovered and undamaged – utilitarian value of guilty plea – suspended sentence of imprisonment imposed

The Supreme Court has sentenced an offender to a period of 18 month’s imprisonment to be suspended immediately upon the offender giving an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years. The offending included two counts of aggravated burglary, one count of theft by way of joint commission, and one count of damaging property by way of joint commission.

In considering the objective gravity of the offences, the Court noted that the offending was clearly planned. However, the offending was committed in a commercial premises and all property was recovered undamaged.

The Court took into account the offender’s young age, absence of prior convictions, good character reference, remorse, financial difficulties, and alcohol use. Ultimately, the Court considered that given the offender’s financial circumstances and youth, he should be assisted by the Court to rehabilitate himself rather than focus on punishing him. In lieu of an order for reparation, an order was made that the offender perform community service to go some way in repaying the community for his wrongdoing.

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1 March 2024

DPP v Vaana [2024] ACTSC 46 (SCC 235 of 2023; SCC 236 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – family violence offences – controlling behaviour – offending not spur of the moment – children nearby when offending occurred – childhood of violence and alcohol abuse – early guilty plea – young offender – focus on rehabilitation – suspended sentence of imprisonment imposed

The Supreme Court has sentenced an offender to a period of 18 month’s imprisonment to be suspended immediately upon the offender giving an undertaking to comply with good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years. The offending occurred in a family violence context and included aggravated property damage, an aggravated threat to kill, and possessing an offensive weapon with intent.

In considering the objective gravity of the offences, the Court noted that children were nearby when the offending occurred, it was not spur of the moment, and it involved serious, controlling behaviour directed towards the offender’s ex-partner. However, the offender made full admissions to the police, assisted police in seizing the weapon, and entered early guilty pleas.

The Court took into account the offender’s young age, childhood of violence and alcohol abuse, and the 84 days served in pre-sentence custody. Ultimately, the Court considered that given the offender’s recent efforts at rehabilitation and the support of his family, a suspended sentence was appropriate.

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29 February 2024

Alvarez v Girvan [2024] ACTSC 53

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from conviction – where appellant found guilty of two offences of common assault – whether findings of guilt were unreasonable and could not be supported by the evidence – whether there was a failure to cross-examine prosecution witness by prosecutor – whether the Magistrate erred in giving himself a Murray direction – open to Magistrate to reject evidence of accused at first instance – appeal dismissed – convictions confirmed

The Supreme Court has dismissed an appeal against convictions in the Magistrates Court for two charges of common assault. The appellant argued that the verdict of the magistrate was unreasonable and could not be supported by the evidence, that the magistrate should not have given himself a Murray direction and that there was a miscarriage of justice arising from the prosecutor not cross-examining prosecution witnesses and later making critical submissions about these witnesses.

The Supreme Court held that the verdicts of guilty were not unreasonable or unable to be supported by the evidence and that it was appropriate for the magistrate to give himself a Murray direction. The Court held that it was an error for the prosecution to make critical submissions about its own witnesses. Nevertheless, no miscarriage of justice occurred on the facts of this case, in light of the magistrate’s findings.

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29 February 2024

Connelly v Hayes [2024] ACTSC 26

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against finding of guilt – breach of Family Violence Order – aggravated common assault – causing damage to property not exceeding $5000 – punch to the face causing injury and breaking dentures – ground of appeal either assertion of unreasonable verdict or factual error on part of the magistrate in finding facts proved beyond reasonable doubt – whether magistrate correctly followed Murray and Liberato directions – whether open to magistrate to accept complainant’s evidence where there is no physical evidence to corroborate it – whether open to magistrate to reject appellant’s bare denial – turns on own facts – appeal dismissed

The Supreme Court has dismissed an appeal against a conviction in the Magistrates Court for contravention of a Family Violence Order, aggravated common assault, and damage to property. The appellant argued that the verdict of the magistrate was unreasonable and could not be supported by the evidence. The court found that the magistrate’s verdict of guilty was not unreasonable in the circumstances, and it was open for the magistrate to find the facts against the appellant proven beyond reasonable doubt.

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29 February 2024

DPP v Hicks (a pseudonym) (No 4) [2024] ACTSC 39

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for advance ruling on the admissibility of evidence – where data scrapes from posts on the dark web were reproduced as html files – where posts are previous representations but are not caught by the hearsay rule – where the terms of the posts can be proved by direct evidence – where the posts are admissible and amendable to proof at trial

The Supreme Court determined an application by the prosecution for an advance ruling on the admissibility of evidence comprising messages transmitted through the Internet as posts on the “dark web”. The Court found that these posts constitute a “document” for the purposes of the Evidence Act 2011 (ACT) and that the contents of the messages were accordingly admissible at trial and able to be proven in one of the ways allowed under the Act. The prosecution argued that the accused urged an unknown person to procure the murder of her parents through messages posted on a “murder for hire” website on the “dark web”. The accused objected to the admissibility of the posts on the ground that their contents constitute documentary hearsay in two respects. Firstly, the accused argued that the evidence sought to be relied on was a reconstruction of material obtained from another source. The Court determined that because the evidence was a raw html scrape, it did not constitute a “reconstruction” of the material. Secondly, the accused submitted that the scrape was documentary hearsay because it contained data held on a website after the actual communication had taken place. The Court determined that an electronic record of messages transmitted through the Internet as posts on a website constitutes a “document” for the purposes of the Evidence Act 2011 (ACT) and therefore is not documentary hearsay. In determining that the messages were admissible, the Court held that the form in which the evidence may be given at trial is a matter for the trial judge.

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29 February 2024

Van Eyle v McFarlane [2024] ACTSC 50

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court against finding of guilt – act of indecency without consent – whether verdict unreasonable or unsupported by the evidence – whether failure to give reasons – where Magistrate accepted complainant’s account and it was corroborated by complaint evidence – where Magistrate rejected appellant’s evidence on critical facts as implausible – where no inconsistencies in complainant’s evidence established – where reasons met minimum standard required – appeal dismissed

The Supreme Court has dismissed an appeal brought against a finding of guilt made by the Magistrates Court in relation to an act of indecency without consent contrary to s 60(1) of the Crimes Act 1900 (ACT).

The act of indecency concerned the sexualised touching of a complainant’s breasts during the course of a massage, including her nipples and areolae, by the appellant.

The challenge was on the grounds of an unreasonable verdict and failure to give reasons.  The Supreme Court found that none of the discrepancies raised were substantiated and that it was open for the magistrate to accept the complainant’s direct and cogent evidence on what actually occurred, rejecting the appellant’s account as implausible in material respects in the process.

In the circumstances of this case, including the appellant’s own evidence in the witness box that he did not seek permission to touch the complainant’s nipples and areolae, that meant the other elements constituting the charge (the conduct was indecent, there was a lack of consent and the appellant was reckless as to whether the complainant was consenting) were all inevitably proven beyond reasonable doubt.

It was further found that the reasons of the special magistrate met the minimum standard required. The appeal was therefore dismissed.

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27 February 2024

R v Cook (No 2) [2024] ACTSC 27 (SCC 82 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – Drug and Alcohol Treatment Order – s 80ZH review – treatment and supervision part cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – suspended sentence – rehabilitation

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27 February 2024

Calatzis v Jones [2024] ACTSC 42

CRIMINAL LAW – PROSECUTION APPEAL AGAINST SENTENCE – Appeal from ACT Magistrates Court – act of indecency – where letter of apology disclosed respondent was not confused about whether victim consented – magistrate erred in finding reduction of moral culpability arising from the circumstances in which the offending occurred – error established – respondent resentenced

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentencing principles – reduction of sentence – scope of statutory discretion to award discount narrowed by ACT Court of Appeal decisions – emphasis on utilitarian value of plea

STATUTES – INTERPRETATION – Statutory construction of s 31(2) Crimes (Sentencing) Act 2005 (ACT) – whether s 31(2) prevents the imposition of a good behaviour order that overlaps with any sentence – where s 31(2) introduced as legislative response to theoretical problem discussed in ACTSC cases – text, content and purpose indicate that s 31(2) applies only in relation to a combination sentence – provision did not apply to sentence imposed by magistrate

The Supreme Court has allowed a prosecution appeal against a sentence. The respondent was sentenced to a three-year good behaviour order for the offence of an act of indecency in the Magistrates Court. The appellant asserted error in the magistrate’s assessment of objective seriousness. The court found that a letter of apology disclosed that the respondent was not confused about whether the complainant consented, and on this basis the magistrate had erred in finding a reduction of moral culpability arising from the circumstances in which the offending occurred. The court determined that the case was not one in which the court’s residual discretion to dismiss the appeal was engaged. The court resentenced the offender to a suspended sentence of four months’ imprisonment and a good behaviour order for two and a half years.

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26 February 2024

Shearman v Classic Constructions (Aust) Pty Ltd [2022] ACTSC 368

CONTRACTS — IMPLIED TERMS — Good faith — urgent application to resolve dispute arising under construction contract – request by owners of property for access to property for the purpose of installing security cameras – where builder gives no reasonable explanation for refusing the request

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26 February 2024

McCurley v Stirling [2024] ACTSC 41

APPEAL – CRIMINAL LAW – Judgment and Punishment – sentence – appeal from Magistrates Court – where further sentence imposed following offences committed while on parole – whether error in making sentence consecutive upon existing sentence – whether error in re-setting non-parole period to commence from the date when the offender’s parole was cancelled as opposed to the date when the original sentence commenced – principles applying to resetting non-parole period discussed

The Supreme Court has upheld an appeal against a sentence imposed by the Magistrates Court for offences involving car theft and dangerous driving.  The offender had been previously sentenced for other offences for 6 years and 3 months.  He was granted parole.  While on parole, he committed the further offences, for which the sentencing magistrate imposed an aggregate sentence of 8 months with an automatic licence disqualification of 12 months.

The Court found there were difficulties in synthesising the primary sentence with the existing sentence, in that the sentence for the further offending was imposed consecutively without consideration being given to whether any part of it should be concurrent.  Further errors were established in relation to the double counting of credit for time spent on parole and the re-setting of a non-parole period.

Having regard to the totality of the circumstances and the offender’s prospects for rehabilitation, the Supreme Court resentenced the offender to a total effective term of 6 years, 6 months and 29 days, with a non-parole period of 4 years.

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22 February 2024

Prime Capital Securities Pty Ltd v Nusage Pty Ltd [2024] ACTSC 36

PROPERTY – MORTGAGE – Possession – home loan – defendant defaulted – notice of default event given – Land Titles Act 1925 (ACT) s 96 – plaintiff entitled to possession.

LAWYERS – REPRESENTATION – Company represented by Director – access to justice – Lack of pro bono referral scheme in Territory

The Supreme Court has made possession orders in favour of a mortgagee following an established default on an $850,000 home loan.  The defendant borrower was a shell company and the loan was personally guaranteed by its director, a pensioner who asserted various disabilities and whose sole source of income derived from Centrelink benefits.  The defendant had raised concerns about unconscionability but these were not properly before the court due to lack of legal representation.  In the course of granting the relief sought, McWilliam J referred to the lack of a legal referral scheme which may have provided assistance to the court.

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22 February 2024

Henderson v The King [2024] ACTCA 3

Judgment summary

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – whether “exceptional circumstances” must exist before an Intensive Corrections Order could be imposed in respect of both offences – where appellant was sentenced on the basis that he possessed the child abuse material for more than one day contrary to particularised charge – errors conceded by the prosecution – resentencing – admission of fresh evidence regarding hardship in custody - interaction between childhood disadvantage and mental illness – appeal allowed – appellant resentenced

The Court of Appeal has allowed an appeal and resentenced the appellant to imprisonment of 2 years and 4 months for possession and transmission of child abuse material with a recognisance order after 9 ½ months’ imprisonment. The sentencing judge erred in two respects: first in finding “exceptional circumstances” must exist before an Intensive Corrections Order could be imposed for the offences, and second, in sentencing the appellant on a basis that was inconsistent with the charge. Fresh evidence regarding the offender’s hardship in custody was considered in resentencing.

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21 February 2024

Hartfield v Calvary Healthcare ACT Ltd (No 2) [2024] ACTSC 33

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE - COSTS – costs of and incidental to application to amend Statement of Claim after the close of evidence – r 513 of the Court Procedures Rules 2006 (ACT) – alternative case within the existing pleadings - where defendant disclaimed any issue with the pleadings at hearing – defendant’s application for costs dismissed – costs to be costs in the cause.

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20 February 2024

DPP v Le [2024] ACTSC 31 (SCC 258 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in cultivating controlled plants – cultivation of cannabis – guilty plea – deportation upon release

The Supreme Court has sentenced an offender to one year and six months of imprisonment for being knowingly concerned in cultivating controlled plants, namely cannabis. The offender used a fake NSW driver’s licence to enter into rental tenancy agreements for residential premises across Canberra. These premises were then used as “grow houses”, where commercial and trafficable amounts of cannabis were grown. The offender expressed some remorse in a letter to the Court. The offender’s visa expired in 2015, so he will return to Vietnam at the expiration of his sentence.

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19 February 2024

May v Helicopter Resources; Commonwealth of Australia v May (No 2) [2021] ACTSC 123

APPEAL – Costs – Orders Made By Consent

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19 February 2024

Director of Public Prosecutions v Padreny [2024] ACTCA 4

Judgment summary

APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – threat to kill – forcible confinement – acts endangering health (choke) – demand accompanied by threat – assaults occasioning actual bodily harm – damage property – excessive discounts for late pleas of guilty – mistake as to fact relevant to objective seriousness – family violence – manifest inadequacy in relation to components of sentence – appeal allowed – offender resentenced

By majority judgment, the Court of Appeal has allowed a prosecution appeal against a sentence imposed for multiple offences committed in the course of a relationship.  The offending involved making a reckless threat to kill, two instances of choking, forcible confinement, common assaults, two assaults occasioning actual bodily harm where surgery was required, minor property damage, and making a demand with a threat to endanger health, safety or physical wellbeing where the threat involved the holding of a taser close to the victim’s chest.

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16 February 2024

Golding v Primavera Holdings Pty Ltd [2024] ACTSC 29

CIVIL LAW – VALUATION – Whether Binding on Parties to Deed – whether valuer “considered” submissions of parties – trusts –– cost of maintaining trust property – indemnification for costs of maintaining trust property

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16 February 2024

DPP v Khan [2024] ACTSC 19 (SCC 90 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – guilty plea to offence of obtaining property by deception – joint commission – where offenders purported to purchase e cigarettes with envelopes of paper intended to resemble banknotes – suspended sentence of imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – where character reference appears to be generated by or rewritten using large language model – use of such reference not appropriate – duty of counsel to make enquiries as to how references are written – question of how much weight to place on good character reference that appears to be AI generated – whether appropriate to use automated translation software in preparing references – whether commitment to cleanliness a factor on sentencing

The Supreme Court has sentenced Majad Khan to 21 months and 15 days’ imprisonment and fined $6000 for obtaining property by deception, namely 12,000 e-cigarettes, to be suspended upon entering a good behaviour order. The offender entered a late plea of guilty but did not provide an explanation as to how he became involved in the offending.

The offender provided several favourable character references; however, the court found it difficult to assess how much weight to be placed on parts of the offender’s good character references which appeared to be generated by, or rewritten using, an AI large language model such as ChatGPT. The court indicated that counsel should make enquiries as to how references are written to ensure they are authentic and should be given appropriate weight by the court.

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16 February 2024

DPP v Aseeri [2024] ACTSC 18 (SCC 91 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – guilty plea to offence of obtaining property by deception – joint commission – where offenders purported to purchase e cigarettes with envelopes of paper intended to resemble banknotes – whether plea of guilty intended to assist administration of justice as distinct from purely rational decision – whether offending crossed threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) – suspended sentence of imprisonment imposed

The Supreme Court has sentenced Amro Aseeri to 21 months and 15 days’ imprisonment for obtaining property by deception, namely 12,000 e-cigarettes, to be suspended upon entering a good behaviour order and completing 100 hours of community service. The offender entered a late plea of guilty and provided several favourable character references. The offender did not provide an explanation as to how he became involved in the offending.

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14 February 2024

Tattersall v Dormakaba Australia Pty Ltd (No 2) [2024] ACTSC 28

CIVIL LAW – COSTS – Plaintiff purported to make offer of compromise pursuant to Pt 2.10 of the Court Procedures Rules 2006 (ACT) – offer failed to set out terms of orders proposed – offer not an offer of compromise within the meaning of r 1002 – whether plaintiff's offer was instead a Calderbank offer – offer not capable of acceptance by one defendant on behalf of others – first defendant’s offer of compromise to third and fourth defendants eminently reasonable – costs apportioned in line with liability for principal judgment up to date of first defendant’s offer of compromise – third and fourth defendant to pay plaintiff’s and first defendant’s costs from date after first defendant’s offer of compromise

The Supreme Court has made a costs order against the third and fourth defendants to a personal injury claim after they rejected two Calderbank offers from the first defendant which, ultimately, would have left the third and fourth defendants better off. The offers from the first defendant would have seen the first defendant pay the bulk of the plaintiff’s claim, with the third and fourth defendants only to pay the remaining—but the result at trial inverted that apportionment of liability and the third and fourth defendants were, in the end, found to be chiefly liable. The court determined that, on that basis, the first defendant should be protected from the costs liability to the plaintiff from the day after the first Calderbank offer was rejected.

At the same time, the court found that a purported offer of compromise from the plaintiff that predates the first defendant’s offers was not validly made. The offer failed to clearly outline the terms on which it was made, and how it could be accepted. In those circumstances, the court found that it was not unreasonable for the defendants to have rejected the offer.

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14 February 2024

R v Vecchi [2023] ACTSC 410 (SCC 198 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – whether to impose suspended sentence of imprisonment – whether to resentence – where resentence appropriate to continue rehabilitative efforts

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13 February 2024

DPP v Kader (No 6) [2023] ACTSC 363 (SCC 200 of 2021; SCC 201 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – perjury – attempt to pervert the course of justice – where the offender gave false evidence during prosecution for sexual offences – dispute as to facts constituting the offence – where the offender lied in first trial to attack complainant’s credibility – coercion of a witness to support the lie in offender’s re-trial – considerations of family violence – consideration of mental health

The Supreme Court has sentenced an offender to 9 months imprisonment for an offence of perjury and 2 years and three months imprisonment for attempting to pervert the course of justice. The charges arose in the context of a sexual assault trial in which the offender gave false evidence to impugn the credibility of the complainant.  The offender then attempted to coerce his former wife to change or add to her statement to police to make it consistent with his false evidence.

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12 February 2024

R v Burge (No 2) [2024] ACTSC 20 (SCC 257 of 2021; SCC 258 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – dangerous driving – common assault – Drug and Alcohol Treatment Order cancelled – s 80ZH review - s 80ZD imposition or resentence – Bugmy principle – term of imprisonment – rehabilitation

Christensen AJ considered the Bugmy principle and resentenced the offender, whose Drug and Alcohol Treatment Order was cancelled for offending during the term of their Treatment Order, to a term of imprisonment accounting for their prospects of rehabilitation and subjective circumstances. Her Honour reasoned that, under section 80ZD of the Crimes (Sentencing) Act,following the cancellation of a Drug and Alcohol Treatment Order, ‘while a staged process is undertaken, no greater weight is to be given to the imposition of the suspended portion. For s 80ZD(4), imposition of the suspended portion is not a preliminary position that can only be displaced in appropriate circumstances. Rather, the court is to consider firstly whether it is appropriate in the circumstances to resentence the offender.’

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12 February 2024

DPP v Gordon [2024] ACTSC 23 (SCC 262 of 2022)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – aggravated robbery – young offender – low objective seriousness – where Bugmy factors present – drug and alcohol treatment not ordered due to separate charges in the Magistrates Court – non-parole period shortened – imprisonment imposed

The Supreme Court has sentenced an offender to 1 year, 9 months and 18 days’ imprisonment for an offence of aggravated robbery. The Court set a non-parole period for 11 months. The offender pleaded guilty to holding a knife to the victim while demanding $250. A shorter non-parole period was considered appropriate to support the offender’s rehabilitation.

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9 February 2024

DPP v Hartas [2024] ACTSC 21 (SCC 4 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated choke, suffocate or strangle another person – aggravated assault occasioning actual bodily harm – aggravated sexual intercourse without consent – family violence – no meaningful remorse – constrained prospects for rehabilitation

The Supreme Court has sentenced an offender to three years and eight months’ imprisonment (non-parole period of 27 months) for one count each of aggravated choke suffocate or strangle another person, aggravated assault occasioning actual bodily harm and aggravated sexual intercourse without consent. The victim was the offender’s partner at the time of the offending. The offender has a history of family violence. The offender showed no meaningful remorse and consequently has constrained prospects for rehabilitation.

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9 February 2024

Caruso v Newington Road Developments Pty Ltd [2024] ACTSC 22

CONTRACTS – FORMATION – Collateral Contract – Holding deposit – alleged breach of collateral contract by a failure to provide a further written contract for sale – claim for damages

The Supreme Court has dismissed a claim for damages for breach of contract. The plaintiff claimed that a collateral contract had been created between him and the defendant upon the transfer of a holding deposit for the sale of land. Following the transfer, the plaintiff failed to provide further details requested by the defendant’s real estate agent, such as his legal name and bank details. The land was later sold to a different buyer. Costs were awarded to the defendant.

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9 February 2024

DPP v Ivanisevic (No 3) [2024] ACTSC 24

CRIMINAL LAW – EVIDENCE – whether body-worn police camera footage and Family Violence Evidence in Chief (FVEIC) should be excluded under s 138 of the Evidence Act 2011 (ACT) –  police did not announce to the complainant that the complainant was being recorded –   proceeded on assumption that the body-worn camera footage was prima facie inadmissible – finding that the desirability of admitting the footage outweighs the undesirability of admitting evidence that has been obtained in the way in which the footage was obtained in any case – FVEIC had been conducted as soon as reasonably practicable –  finding that the desirability of admitting the FVEIC outweighs the undesirability of admitting evidence that has been obtained in the way in which the FVEIC was obtained in any case – evidence admissible – application dismissed.

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8 February 2024

DPP v O’Connell (No 5) [2024] ACTSC 17 (SCC 251 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – murder – murder by way of reckless indifference – victim fell from bonnet of offender’s vehicle while he was driving – findings of fact related to specific aspects of driving – application of principles in R v Olbrich [1999] HCA 54; 199 CLR 270 – other than driving with the victim on the bonnet, no element of furious or dangerous driving – no excessive speed, undue acceleration or braking, or swerving – lack of remorse – reasonable prospects of rehabilitation – limited utility of comparable cases.

The Supreme Court has sentenced an offender to 15 years of imprisonment, with a non-parole period of 10 years, for murder. The offender drove over 200 metres with the victim on the bonnet of his vehicle. The victim fell and suffered a fatal head injury. A jury found that the offender was recklessly indifferent to the probability of the victim’s death. The offence occurred in breach of bail conditions and was witnessed by a young person. The offender lacked remorse. The offender had reasonable prospects of rehabilitation.

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6 February 2024

DPP v Taylor [2023] ACTSC 39 (SCC 216 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – murder by joint commission – offender accompanied co-offender who shot deceased through his front door – deceased shot as a result of mistaken identity – intention to commit home invasion – offender reckless as to fact that in committing the home invasion a co-offender might go further and commit murder – offence in mid-range of objective seriousness – consideration of discount for providing assistance to authorities – significant mitigatory factors – reasonable prospects of rehabilitation

The Supreme Court has sentenced Gary Taylor to 10 years and three months imprisonment for the offence of murder by joint commission. On 10 June 2021 the offender went with three other co-accused to commit a home invasion on a unit in Phillip. On that evening, Glen Walewicz was at home with his girlfriend. A co-offender of Mr Taylor shot Mr Walewicz through the front door of his unit. Mr Walewicz was not the intended target of the home invasion. The offender was arrested for the offence in NSW in June 2022.

Mr Taylor was sentenced to a starting point of 17 years’ imprisonment, which was reduced by 40 percent as a result of the assistance he provided to authorities. Due to significant mitigatory factors and reasonable prospects of rehabilitation, a non-parole period of five years and six months was imposed.

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6 February  2024

DPP v Black (a pseudonym) [2024] ACTSC 1

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for witness to give pre-trial evidence – Rule 6813 of the Court Procedures Rules 2006 (ACT) – where witness is terminally ill – application granted.

The Supreme Court has granted an application for a witness in a criminal trial to have their evidence taken otherwise than at trial, under rule 6813 of the Court Procedures Rules 2006 (ACT). The witness is terminally ill and may not be well enough to give evidence at trial. The Court considered that the interests of justice would be served by the witness giving pre-trial evidence, to be recorded by audio-visual link.

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6 February 2024

Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 7) [2024] ACTSC 15

CIVIL LAW – PRACTICE AND PROCEDURE – Application for non-party costs order – application for disqualification on the ground of apprehended bias – non-party a director of defendant company – where trial judge made adverse credit findings about non-party in substantive judgment – approach to apprehended bias where summary proceedings on costs arise out of earlier substantive judgment – application for disqualification refused

The Supreme Court has refused an application for a judge to disqualify himself from hearing an application for a non‑party costs order. The non-party made an application for disqualification on the ground of apprehended bias. The judge had made adverse credit findings about the non-party in an earlier substantive judgment. The court determined that, in circumstances where the summary proceedings on costs arise out of the earlier substantive judgment and are therefore not separate proceedings, the ground of apprehended bias was not made out.

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6 February 2024

DPP v Duran [2024] ACTSC 14 (SCC 206 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – unprovoked attack in public space – victim unknown to offender – serious injury – offender expressed remorse – very good prospects of rehabilitation – offender has made significant progress towards rehabilitation in the community – Suspended Sentence Order – Good Behaviour Order

The Supreme Court has sentenced an offender to 14 months imprisonment immediately suspended upon entering a GBO for assault occasioning actual bodily harm. The offence was unprovoked, and the victim was unknown to the offender and suffered a serious injury. The offender had consumed significant amounts of alcohol on the night. He had very good prospects of rehabilitation and had made significant progress in addressing his mental health issues and alcohol consumption while in the community. He expressed remorse and entered a relatively early plea of guilty. He had a very limited criminal history and had previously been of good character.

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5 February 2024

DPP v Mapiou [2024] ACTSC 7

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Drug and Alcohol Treatment Assessment – Eligibility Assessment – assessments for Drug and Alcohol Treatment Order – substance use disorder – dishonesty during assessments – Suitability Assessments ordered

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2 February 2024

Wilson v Allen (No 2) [2024] ACTSC 13

CIVIL PROCEDURE – ABUSE OF PROCESS – Application to permanently stay proceedings as an abuse of process – whether claim could and should have been litigated in earlier proceedings between same parties – consideration of UBS AG v Tyne [2018] HCA 45; 265 CLR 77 – whether circumstances of case amount to exceptional circumstances – application dismissed

PRACTICE AND PROCEDURE – EVIDENCE – Consideration of the rule in Browne v Dunn (1894) 6 R 67 – where submission made that the Court ought to infer certain steps were taken in litigation to gain a forensic advantage – whether submission could be made without first putting the allegations to the relevant witness and providing him an opportunity to respond – whether witness already on notice to the challenge to be made to evidence – where alternative hypothesis needed to be put to witness in cross-examination

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2 February 2024

Ezekiel-Hart v The Council of the Law Society of the ACT (No 7) [2024] ACTSC 12

PRACTICE AND PROCEDURE – VEXATIOUS LITIGANTS – Where defendants seek declaration that the plaintiff be declared a vexatious litigant pursuant to s 67A of the Supreme Court Act 1933 (ACT) – whether plaintiff has instituted vexatious proceedings – whether plaintiff has done so frequently – whether the Court should exercise its discretion to make the order sought – plaintiff declared a vexatious litigant

CIVIL LAW – PRACTICE AND PROCEDURE – Application to strike out statement of claim – application for summary judgment – lengthy history of litigation between the parties – failure by plaintiff to properly plead identifiable claims – proceedings instituted by plaintiff lacking reasonable grounds – no submissions filed by or on behalf of plaintiff – statement of claim struck out

The Supreme Court has declared the plaintiff a vexatious litigant in Ezekiel-Hart v Council of the Law Society of the ACT (No 7). The judgment considered 38 previous proceedings brought by the plaintiff, 25 of which were found to have been vexatious. Following years of extensive litigation on many of the same issues, the defendants brought an application seeking, among other orders, a declaration that the plaintiff is a vexatious litigant. The Court found that the plaintiff had frequently commenced vexatious litigation, and anticipated that he would continue to do so unless stopped.

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2 February 2024

Michael Wilson & Partners Ltd v Nicholls (No 12) [2024] ACTCA 1

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal interlocutory decision – where primary judge found proceedings taken to be dismissed – whether primary judge applied an incorrect legal test – where primary judge refused to reinstate dismissed proceeding – whether justiciable issue left to decide – whether sufficient doubt about the primary judge’s decision – application dismissed.

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1 February 2024

Norman v Jones [2024] ACTSC 11

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – offence of common assault – whether error in consideration of s 17 of the Crimes (Sentencing) Act 2005 (ACT) – whether extenuating circumstances exist – appeal allowed – offender re-sentenced – non-conviction order imposed

The Supreme Court has allowed an appeal against a sentence imposed in the Magistrates Court for a single offence of common assault. The appellant was convicted and sentenced by the Magistrates Court to a Good Behaviour Order for nine months.

The Supreme Court held that the Magistrate made an error in finding that there were no “extenuating circumstances” that applied in this case. The appeal was allowed, and the appellant was re-sentenced to a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

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1 February 2024

Campbell v ACT Planning and Land Authority [2024] ACTSC 10

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Procedural fairness – apprehended bias – failure to consider relevant consideration – error of law – planning approval of development application – where neighbour made representation – where decision-maker received information from proponent criticising neighbour and undertook independent research without giving neighbour an opportunity to respond – no error established

The Supreme Court has dismissed an application for judicial review in relation to a planning decision made by a delegate of the ACT Planning and Land Authority.

The plaintiff was the adjoining neighbour of a property which received development approval to construct a balcony, among other works.  She had made a representation to the Authority and claimed that she had been denied procedural fairness in the decision-making process in circumstances where there was criticism of her and where the delegate making the decision sought out other material concerning her, being previous cases decided between the neighbour and the owner of the property that was the subject of the development approval.  The plaintiff further alleged that the Authority failed to consider issues she had raised, and otherwise erred in law including by failing to give adequate reasons.

The Court held the statutory framework did not require other information obtained by the delegate to be provided to the neighbour for comment and that there was no failure to consider the matters raised by the plaintiff in her representation to the Authority.  There was otherwise no error of law.  The reasons provided by the delegate to the plaintiff, while brief, did not fall below the minimum acceptable standard required of administrative decision-makers in the context of the particular statutory scheme.

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1 February 2024

R v Hancock (No 4) [2023] ACTSC 254 (SCC 5 of 2021; SCC 6 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – resentence for previous offences – breach of Treatment Order – further rehabilitation undertaken – sentence of suspended imprisonment imposed – Good Behaviour Order imposed

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31 January 2024

Drumgold v Board of Inquiry – Criminal Justice System (No 2) [2024] ACTSC 8

CIVIL LAW – Originating Application – Evidence – Admissibility of aspects of affidavit evidence.

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31 January 2024

R v Connors (No 3) [2022] ACTSC 391 (SCC 284 of 2021; SCC 285 of 2021; SCC 249 of 2022; SCC 250 of 2022; SCC 294 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Drug and Alcohol Treatment Order – conviction for further offences while subject to a treatment order – consideration of pre-sentence custody for other offences – where offender had a disadvantaged childhood – where significant steps taken toward rehabilitation – sentence of imprisonment imposed

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31 January 2024

R v Connors (No 2) [2022] ACTSC 384

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – failure to comply with obligations of Drug and Alcohol Treatment Order – application for cancellation of Drug and Alcohol Treatment Order – unwilling or unlikely to comply with a condition of the offender's Drug and Alcohol Treatment Order – continuation of treatment and supervision order will likely not achieve the objects of the Drug and Alcohol Treatment Order – offender poses unacceptable risk to the safety or welfare of a person in the community – application dismissed.

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25 January 2024

DPP v Rand [2023] ACTSC 408 (SCC 280 of 2022; SCC 281 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threat to kill – intentionally inflicting actual bodily harm – family violence – offending associated with drug use – Drug and Alcohol Treatment Order made

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25 January 2024

R v West (No 2) [2024] ACTSC 5 (SCC 174 of 2021; SCC 175 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cancellation of the Drug and Alcohol Treatment Order – resentence – robbery – burglary – theft – dishonestly ride motor vehicle – failure to stop – good behaviour order made

His Honour Refshauge AJ consolidated the principles of the cancellation of a Drug and Alcohol Treatment Order as initially developed in R v Massey (No 4) [2021] ACTSC 211. His Honour further provided guidance on the imposition of Good Behaviour Order after the cancellation of a Drug and Alcohol Treatment Order to achieve the therapeutic objects of the Sentencing Act.

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24 January 2024

Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 6) [2023] ACTSC 392

PRACTICE AND PROCEDURE – FINAL ORDERS – Successful claim for restitution for the value of work and labour assessed by way of a quantum meruit – entitlement to payment for work precluded by estoppel arising from ostensible authority – first defendant entitled to payment for work less plaintiff’s costs of conducting the proceedings not able to be recovered from the second defendant or any third party – outstanding questions of costs reserved for hearing of costs applications against third parties – liberty to apply within 12 months in relation to application for interest

The Supreme Court has made final orders in relation to a successful claim for restitution for the value of work and labour assessed by way of a quantum meruit. The claimant’s entitlement to payment for work was partly precluded by an estoppel arising from ostensible authority. The court determined that the first defendant is entitled to payment for the work less the plaintiff’s costs of conducting the proceedings that are not able to be recovered from the second defendant or any third party.

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23 January 2024

Re application under the Parentage Act 2004 (ACT)[2023] ACTSC 360

PARENTAGE ORDER – Application for transfer of parentage under s 26 of the Parentage Act 2004 (ACT) – where child born under surrogacy agreement – whether parentage order must be made – parentage order made

The Supreme Court has made a parentage order for transfer of parentage under s 26 of the Parentage Act 2004 (ACT). The child was born under a surrogacy agreement.

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19 January 2024

Inglis v Adamson [2024] ACTSC 4

CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against conviction –– whether finding of guilt open to Magistrate – whether sufficient evidence to find appellant guilty by way of joint commission – operation of s 45A of the Criminal Code 2002 (ACT) – when agreement commenced – appeal dismissed.

CRIMINAL LAW – APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence – where three co-offenders received the same sentence – principles of parity – individual roles in offending – whether different sentences warranted – appeal dismissed.

The Supreme Court has dismissed an appeal from the Magistrates Court in relation to a conviction for assault occasioning actual bodily harm by way of joint commission. The appellant submitted that the evidence failed to establish he was in an agreement to assault the victim. The Court found that it was clear from CCTV evidence that the appellant was in an agreement to assault the victim at all relevant times.

The Court also dismissed the appellant’s appeal against sentence, finding that the Magistrate did not err in sentencing each co-offender to the same sentence.

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18 January 2024

Krutsky v McCormick [2024] ACTSC 3

APPEAL – APPEAL FROM MAGISTRATES COURT – Offender appeal on sentence – whether sentence was manifestly excessive – sentence concerning offences of act endangering life and damaging property – high degree of concurrency and orthodox approach to totality – lenient sentence and nonparole period – appeal dismissed

The ACT Supreme Court has published reasons in an appeal of a sentence imposed by the Magistrates Court. The appeal was dismissed at the hearing.

The appellant alleged that the sentence imposed by the Magistrates Court was manifestly excessive. The sentence concerned two offences of act endangering life and an offence of damaging property. The Court found that the sentence imposed was not manifestly excessive. The offending was serious, and the sentence imposed was lenient in all the circumstances of the case. The Court found that there was no error in the Magistrate’s decision and the appeal was dismissed.

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15 January 2024

DPP v Robertson [2023] ACTSC 383 (SCC 71 of 2023; SCC 72 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of family violence order – attempted murder – life altering harm to the victim – history of family violence – where but for the plea of guilty the offence would have attracted the maximum penalty

The Supreme Court has sentenced an offender to 27 years imprisonment for an offence of attempted murder and an additional 3 months for breaching a family violence order.  The Court set a non-parole period of 20 years.  The attempted murder was an extreme example of family violence where the victim had her ear sliced, was stabbed 11 times and was burnt with naked flame to the face, chest and torso resulting in life altering injuries which now require 24/7 care.  The offender later attempted to send the victim a Christmas card in breach of a family violence order.  But for the fact that the offender pleaded guilty, the Court would have imposed the maximum penalty of imprisonment for life.

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12 January 2024

R v Cajina (No 2) [2022] ACTSC 383 (SCC 263 of 2020; SCC 264 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – Further offending – Threatening to inflict grievous bodily harm – Damage of property – Possession of knife and offensive weapon – Subjective circumstances – Good Behaviour Order

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11 January 2024

DPP v D’Jerke [2023] ACTSC 313 (SCC 277 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  consideration of whether to order a Drug and Alcohol Treatment Assessment where the sentence imposed may be longer than the legislative maximum – purposes of Eligibility Assessments for Drug and Alcohol Treatment Order – where issues of parity arise – liberal approach to be taken at the preliminary stage of Suitability Assessment – Suitability Assessment ordered

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9 January 2024

DPP v Akoi [2023] ACTSC 388 (SCC 203 of 2022)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to charges of unlawful act causing grievous bodily harm and choke, suffocate or strangle – offender bit off the tip of the victim’s left little finger – offences occurred when offender highly intoxicated – grievous bodily harm offence in the mid-range of objective seriousness – choke offence in the low-range of objective seriousness – sentence of imprisonment imposed for grievous bodily harm charge suspended on entry of good behaviour order – good behaviour order imposed for choking charge

The Supreme Court has sentenced Yaak Akoi to 9 months imprisonment, to be suspended immediately upon him entering into a good behaviour order. Mr Akoi pleaded guilty to charges of unlawful act causing grievous bodily harm and choke, suffocate or strangle. The charge involving grievous bodily harm involved Mr Akoi biting the tip of his friend’s little finger off during a heated argument. The offences were found to be in the mid-range and low-range of objective seriousness.

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9 January 2024

TS v UG [2023] ACTSC 389

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal – appeal against conviction – third ground of appeal alleged apprehended bias by magistrate – where magistrate made adverse credit findings against appellant in separate proceedings – appellant raised issue of bias at time of initial hearing – magistrate refused to recuse herself – ground of appeal conceded by respondent – matter remitted to the Magistrates Court to be determined according to law

The Supreme Court has allowed an appeal against a conviction. The appellant was found guilty of the offence of stalking in the Magistrates Court. The third ground of appeal alleged a denial of procedural fairness by reason of apprehended bias. The magistrate had made adverse credit findings against the appellant in separate proceedings. The appellant raised the issue of bias at the time of the hearing, but the magistrate refused to recuse herself. The ground of appeal was conceded by the respondent. The court found that the ground of appeal was made out and remitted the matter to the Magistrates Court to be determined according to law.

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9 January 2024

Collaery v The Queen (No 4) [2023] ACTCA 47

NATIONAL SECURITY – JURISDICTION, PRACTICE AND PROCEDURE – Appropriate form of publication of judgment that includes national security information – where trial judge made order under s 31(4) of the National Security Information (Civil and Criminal Proceedings) Act – where accused succeeded in interlocutory appeal concerning appropriate scope of order – where final form of order remitted to trial judge to be determined after considering further confidential evidence – where prosecution discontinued before further hearing held – whether appeal judgment should be redacted consistently with existing certificate or order

APPEAL – INTERLOCUTORY APPEAL – Where Court had previously determined application to vary form of judgment to redact national security information – where Attorney-General brings second application following discontinuance of prosecution – whether an abuse of process

The Court of Appeal has determined the form in which its two previous judgments in The Queen v Collaery (No 2) and The Queen v Collaery (No 3) are to be published.

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9 January 2024

Collaery v The Queen (No 3) [2021] ACTCA 34

JURISDICTION, PRACTICE AND PROCEDURE - Request to vary statement of reasons pursuant to section 32 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) - where information is the subject of a certificate under section 26 - consideration of applicable general principles - whether information in the statement directly or indirectly reveals protected information - whether information in the statement tends to confirm or deny protected information - consideration of extent of interference with the administration of justice

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9 January 2024

Collaery v The Queen (No 2) [2021] ACTCA 28

APPEAL – National security – appeal from order prohibiting disclosure – consideration of s 31 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) –whether statements had already been confirmed or denied – consideration of the risk of prejudice to national security – consideration of effect on appellant’s right to a fair trial – consideration of the risk of damage to public confidence in the administration of justice

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2 January 2024

Dankers v Volunteer Maritime Rescue NSW [2023] ACTSC 395

PRACTICE AND PROCEDURE – CORRESPONDENCE BETWEEN SOLICITORS – Parties and legal practitioners subject to mandatory statutory obligation under s 5A of Court Procedures Act 2004 (ACT) to help the Court facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible – multiple failures to respond to opponent’s solicitor’s correspondence in a timely fashion or at all – prima facie breach of s 5A

CIVIL PROCEDURE – NON-COMPLIANCE – Parties ordered to participate in an informal settlement conference – virtually no step taken to comply with Order – deliberate non-compliance with Order a possible contempt of Court – parties required to show cause why they should not be cited for contempt

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22 December 2023

DPP v Manns (No 2) [2023] ACTSC 405 (SCC 79 of 2022; SCC 105 of 2022; SCC 106 of 2022; SCC 107 of 2022; SCC 328 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – aggravated burglary – recklessly inflict actual bodily harm – aggravated robbery – drive motor vehicle without consent – possess false registration plates – use carriage service to make a threat – attempt to intentionally inflict grievous bodily harm – findings of facts after trial – mental health difficulties and neurodevelopmental disorders – significant criminal history – positive prospects of rehabilitation with ongoing treatment and management – sentenced to a term of imprisonment – nonparole period imposed

The ACTSC has sentenced an offender for a number of offences, namely, aggravated burglary, recklessly inflict actual bodily harm, aggravated robbery, use carriage service to make a threat, attempt to intentionally inflict grievous bodily harm and driving offences. The offender received an overall sentence of 7 years, 1 month and 26 days’ imprisonment, with a nonparole period which recognised the need for ongoing supervision in the community.

The offender has a significant criminal history. The offender had experienced lifelong difficulties with mental health and neurodevelopment disorders, and has benefitted from ongoing treatment and management while in custody. The offender has positive prospects of rehabilitation provided he continues to access treatment and abstains from illicit substance use.

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22 December 2023

DPP v Doughty [2023] ACTSC 397 (SCC 104 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –sexual offending – four counts of sexual intercourse with a person under 16 years of age – one count of an act of indecency on a person under 16 years of age – one count of not complying with a s 3LA order – pleas of guilty – pattern of offending – predatory conduct

The Supreme Court has sentenced an offender to 9 years, 6 months and 30 days imprisonment for various sexual offences against young people, with a non-parole period of 60 per cent. The offender was aged between 18 to 24 at the time of the offences, and the victims aged 13 to 15. The offending was callous and for the offender’s own gratification, with significant and lasting impacts on the victims. The offender made early pleas of guilty and there is some evidence of remorse.

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22 December 2023

Kennedy v Qantas Ground Services Pty Ltd [2023] ACTSC 404

CIVIL LAW – PRACTICE & PROCEDURE – Interlocutory application – summary judgment – strike out application – whether pleading unintelligible – where arguable causes of action raised on existing pleading – majority of pleading struck out with no further opportunity to replead

The Supreme Court has granted leave to a plaintiff to file a further amended pleading on a civil claim that alleges negligence and a breach of statutory duty.  The two relevant defendants were otherwise substantially successful in their application to strike-out the majority of the claim.   The Court accepted that an arguable case existed in negligence, contract and breach of statutory duty, but found that only the claims in negligence and breach of statutory duty had been sufficiently pleaded and that otherwise the plaintiff had had sufficient opportunity to plead his case.

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21 December 2023

Alfred (a pseudonym) v Eiffert [2023] ACTSC 403

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against conviction for aggravated burglary and attempted theft – appeal by rehearing – standard of review - circumstantial case – whether Magistrate erred in making intermediate factual findings – evidence established guilt beyond reasonable doubt – appeal dismissed.

The Supreme Court has dismissed an appeal from the Childrens Court against convictions for aggravated burglary and attempted theft of the Canberra Centre Apple Store. Two offenders were involved. The Court held that the Magistrate erred in identifying the appellant as the offender with the Aldi bag. However, on considering all of the evidence (including CCTV and body-worn footage, physical evidence found in Glebe Park, and the appellant’s proximity to the offending at arrest), the Court was satisfied beyond reasonable doubt that the appellant was the other offender.

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21 December 2023

Jorgensen v Wilson (No 2) [2023] ACTCA 50

COSTS – PRACTICE AND PROCEDURE – Application for gross sum costs order – costs order appropriate

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21 December 2023

Jorgensen v The Supreme Court of the Australian Capital Territory (No 3) [2023] ACTSC 396

COSTS – PRACTICE AND PROCEDURE – Application for gross sum costs order – application by amici curiae – where amici curiae appeared partly at request of Court – submissions of amici curiae of significant assistance to Court – costs awarded – gross sum order appropriate to save the parties the difficulties, inconvenience, and expense of assessment

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20 December 2023

Alexander v Bakes [2023] ACTCA 49

Judgment summary

CRIMINAL LAW – Appeal against orders of the ACTSC affirming convictions in ACT Magistrates Court – where accused convicted of theft under s 308 of the Criminal Code 2002 (ACT) – where magistrate allowed amendment of charges pursuant to s 28 of the Magistrates Court Act 1930 (Act) – nature of the appeal to the ACTCA – whether decision of the appeal judge was unreasonable and could not be supported by the evidence – whether amendment of charges necessary – whether jurisdiction under s 28 properly enlivened – whether injustice to the appellant to allow amendment of the charges – appeal dismissed.

The Court of Appeal has unanimously dismissed an appeal against orders of the Supreme Court, which affirmed convictions made in the ACT Magistrates Court on 48 charges of theft. The appellant held leadership roles in a Football Club, and the offending involved using club’s funds for his personal benefit. The Court found that the appellant had not established that the verdict was unreasonable. The Court further held that the primary Magistrate and appeal judge had not erred in allowing an amendment to the description of the charges.

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20 December 2023

DPP v Krutsky [2023] ACTSC 402

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – not guilty of intentionally inflicting grievous bodily harm – guilty of statutory alternative of recklessly inflicting actual bodily harm – whether injuries constituted grievous bodily harm or actual bodily harm – whether conduct was intentional or reckless

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19 December 2023

Fihelly v Bluett [2023] ACTSC 393

APPEAL – CRIMINAL LAW – Appeal against conviction and sentence – whether to admit new evidence – assault of a frontline community service provider – appeal allowed – resentencing – non-conviction order

The Supreme Court has upheld an appeal in respect of conviction and sentence in part.  The appellant challenged the finding in the Magistrates Court that he was guilty of assaulting a frontline community service provider (namely, a police officer) as well as the sentence which was the imposition of a conviction and a $600 fine.  The appellant sought to rely on new evidence including video footage of the incident taken from a different camera angle and character references.  Held, in admitting the new evidence, that there was reasonable doubt about whether the assault was deliberate, but that nevertheless, the conduct met the alternative case based on recklessness, such that the appellant was guilty of the offence.  Upon resentence arising from the factual finding of lesser objective seriousness, the court imposed a non-conviction order.

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19 December 2023

Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401

PLEADINGS – application to amend Statement of Claim after the close of evidence – s 67 of the Court Procedures Act 2004 (ACT) and rule 501 of the Court Procedure Rules 2006 (ACT) – whether alternative case encompassed within existing pleading – application granted.

The Supreme Court has granted an application to amend a Statement of Claim in a medical negligence matter after the close of evidence, to allow the Plaintiff to particularise an alternative basis of liability relating to psychological harm. The Defendant was on notice that the plaintiff was seeking damages on this basis. The defendant was also granted leave to amend its defence in response, and both parties were granted leave to adduce further evidence.

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19 December 2023

McIver v The King [2023] ACTCA 48

APPEAL – CRIMINAL LAW – Appeal against sentence – combination of Commonwealth and State offences – offences committed while detained in custody – appellant on remand but housed with convicted prisoners – whether primary judge erred in determining objective seriousness – importance of general deterrence – offending between detainees – whether the appellant’s human rights were breached – whether appellant’s custody was unlawful – consideration of “lawful custody” – s 19 of the Human Rights Act 2004 (ACT) – prima facie breach of s 19 – sentence not manifestly excessive – s 16E of the Crimes Act 1914 (Cth) – time spent in custody “in relation to” the offence – meaning of “in relation to” – whether sentence should be backdated to take into account time in custody for an unrelated offence for which the appellant had been later acquitted – Renzella discretion.

The Court of Appeal has unanimously dismissed an appeal against a sentence imposed for recklessly causing grievous bodily harm. The offender was in custody, bail refused at the time of the offending. The offender relied on six grounds of appeal, concerning the objective seriousness of the offending, whether a breach of the Human Rights Act 2004 (ACT) rendered the appellant’s custody unlawful, and whether the sentence should be backdated to take account unrelated prior custody. The Court dismissed each of the grounds of appeal.

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18 December  2023

DPP v Vincent (No 2) [2023] ACTSC 379 (SCC 160 of 2022; SCC 161 of 2022; SCC 351 of 2022)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to charges of aggravated burglary, theft and dishonestly drive motor vehicle – where offender requested court take into account seven other offences including theft and aggravated burglary – seriousness of offending ranges from lower end of mid-range to mid-range of objective seriousness – significant criminal history – where offender has recently shown motivation to rehabilitate – sentence of imprisonment imposed to be served by way of an intensive corrections order (ICO)

SENTENCING – ADDITIONAL OFFENCES – Taking offences into account under Pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT) – explanation of the decision in R v Campbell [2010] ACTCA 20

CRIMINAL LAW – INTEPRETATION – Interpretation of s 11 of the Crimes (Sentencing) Act 2005 – whether limits on the length of an ICO apply to each sentence or to aggregate term of imprisonment imposed – whether four year limit on term to be served by ICO applies to each individual sentence – whether aggregate sentence may exceed four years – there is power to make an ICO for sentences which in aggregate exceed four years – it is a matter of discretion rather than the legal availability whether such a sentence is imposed

The Supreme Court has sentenced Christopher Vincent to four years and five months of imprisonment, to be served by way of Intensive Correction Order. He pleaded guilty to charges of aggravated burglary, theft and dishonestly drive motor vehicle. The court was also requested to take into account seven other offences including theft and aggravated burglary as additional offences. The seriousness of the offending ranged from lower end of mid‑range of seriousness to mid-range. The offender had a significant criminal history, but had recently shown a motivation to rehabilitate. The court considered whether an ICO may be imposed for a sentence of a total period of more than four years.

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18 December 2023

Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 8) [2023] ACTSC 399

COSTS – INTERLOCUTORY APPLICATIONS – Where each party brought an interlocutory application concerning a fund held by the defendant in accordance with the provisions of the Building and Construction Industry (Security of Payment) Act – where final rights under the building contract remain to be determined – whether costs should follow the event – whether costs should be determined in accordance with “usual rule” in the case of interlocutory injunctions

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18 December 2023

Drumgold v Board of Inquiry – Criminal Justice System & ors [2023] ACTSC 394

CIVIL LAW – Practice and procedure – Proceeding by plaintiff seeking declarations relating to validity of report of Board of Inquiry into investigation and prosecution of alleged rape – Application by police investigators affected by report to be joined in proceeding – Application not opposed – Application allowed. – Application by Chief Police Officer of the Australian Capital Territory for leave to intervene or appear as amicus curiae – Application refused

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15 December 2023

DPP v Woods [2023] ACTSC 380 (SCC 291 of 2022; SCC 292 of 2022)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – offender pleaded guilty to offense of dishonestly ride motor vehicle, theft and aggravated burglary – offender seeks that further charges of dishonestly ride motor vehicle and make off without payment be taken into account – burglary involved stealing electric scooters and skateboards – objective seriousness of offending in low end of mid-range to mid-range – significant criminal history – sentence of imprisonment imposed

The Supreme Court has sentenced David Woods to two years, eight months and fifteen days imprisonment. He pleaded guilty to charges of aggravated burglary, theft and dishonestly ride in motor vehicle. The court was also requested to take into account two other offences of dishonestly ride motor vehicle and making off without payment. The seriousness of the offending ranged from the lower end of mid‑range of seriousness to mid-range. The offender has a significant criminal history.

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15 December 2023

Legal Practitioner LP 202012 v The Council of the Law Society of the Australian Capital Territory [2023] ACTSC 391

APPEAL – APPLICATION FOR LEAVE TO APPEAL FROM APPEAL TRIBUNAL OF ACAT – Finding by Appeal Tribunal of professional misconduct and unsatisfactory professional conduct – whether leave should be granted – test to be applied – whether ground of substance to be argued – whether applicant has identified questions of law or fact in issue – no potential or arguable error – leave refused

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14 December 2023

DPP v Ivanisevic (No 2) [2023] ACTSC 374 (SCC 273 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts of assault occasioning actual bodily harm – family violence offending – significant criminal history including family violence offences – high and mid range objective seriousness – nascent remorse – sentenced to a term of imprisonment – nonparole period imposed

The ACTSC has sentenced an offender to an overall sentence of 4 years, 2 months and 26 days’ imprisonment for three offences of assault occasioning actual bodily harm. A nonparole period of two years, 4 months and 17 days was imposed. The offending was considered to be in the high and mid range for offences of this type, and involved a significant degree of violence and the use of weapons. The offences were committed in a family violence context.

The offender has a significant criminal history, including family violence offences. The offender expressed insight into his offending, but his remorse was not fully developed. The offender has been able to abstain from drugs in custody and has been working while in the AMC. The Court made recommendations for the offender’s parole that he engage in drug and alcohol, family violence, anger management and mental health treatment.

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14 December 2023

Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390

CIVIL LAW – NEGLIGENCE – Personal injury claim arising from fault in roller doors – chain box for roller door fell off building and onto plaintiff’s head – weld affixing chain box to building failed and caused harm to plaintiff – first defendant contracted to perform maintenance on the roller door – no defects in welding reported prior to accident – defective welds would have been apparent to inspector exercising reasonable skill and care – first defendant breached duty of care to plaintiff

CIVIL LAW – NEGLIGENCE – Personal injury claim arising from fault in roller doors – chain box for roller door fell off building and onto plaintiff’s head – weld affixing chain box to building failed and caused harm to plaintiff – third and fourth defendants held contract for the installation of chain boxes at the plaintiff’s workplace – whether fourth defendant performed the defective welding that attached the chain box to the building – documentary and witness evidence establishes fourth defendant installed the relevant chain box and welded it to the building – weld fell below standard reasonably expected of a person installing chain boxes – third defendant vicariously liable for the acts of its officer

The Supreme Court has given judgment for the plaintiff in a personal injury claim arising from a fault in a roller door. The chain box which operated a roller door fell off the building and onto the plaintiff’s head. The court found that the weld affixing the chain box to the building had failed and caused harm to the plaintiff. The first defendant was contracted to perform maintenance on the roller door, and no defects in the welding were reported prior to the accident. The court determined that the defective welds would have been apparent to an inspector exercising reasonable skill and care, and that the first defendant had breached its duty of care to the plaintiff.

The third and fourth defendants held the contract for installation of chain boxes at the plaintiff’s workplace. The court found that documentary and witness evidence established that the fourth defendant installed the relevant chain box and welded it to the building. The weld fell below the standard reasonably expected of a person installing chain boxes. The third defendant was held vicariously liable for the acts of the fourth defendant, its officer.

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13 December 2023

DPP v Henry [2023] ACTSC 384 (SCC 198 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – rolled up count involving 260 separate acts – breach of trust by employee – excellent prospects of rehabilitation – significant remorse – early acceptance of responsibility – low risk of re-offending – effect on offender’s family taken into account – intensive correction order imposed

The Supreme Court has sentenced an offender to 2 years imprisonment served by ICO for theft. The offender processed 260 false refunds to his bank account at his place of employment totalling nearly $50,000. He had excellent prospects of rehabilitation, was studying to be a teacher and imprisonment would have a detrimental effect on his family and dependents. He entered a plea of guilty at the earliest opportunity, showed genuine remorse, and had begun to make repayments to the victim business. The Court made a reparation order for the remaining amount to be re-paid.

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13 December 2023

Palmer v Australian Capital Territory (No 3) [2023] ACTSC 387

COSTS – personal injury claim – where the plaintiff obtained judgment in an amount exceeding a settlement offer made by him that was rejected by the defendant – where proceedings could have been brought in the Magistrates Court – where statutory claims abandoned at the outset of the hearing – where the defendant’s conduct of the hearing contributed to its length

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13 December 2023

Swan v Phoenix Combat Sports Pty Ltd (In Liquidation) (No 2) [2023] ACTSC 381

PRACTICE AND PROCEDURE – SEPARATE DECISIONS ON QUESTIONS – Whether appropriate to make an order for the decision of a question separately from another question before trial – where lack of agreed facts – risk of inconsistent judgments – separate decision not appropriate

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12 December 2023

DPP v Hagen (No 2) [2023] ACTSC 386 (SCC 236 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Order – offender has engaged in significant rehabilitation since breach –breach offence was relatively minor – where offender has served significant time in custody as a result of breach – Good Behaviour Order cancelled – offender resentenced under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) – further suspended sentence and Good Behaviour Order imposed.

The Supreme Court has resentenced an offender following a breach of a suspended sentence and Good Behaviour Order (GBO) imposed in December 2022. The breach offence was relatively minor and the offender had spent substantial time in custody as a result of the breach. The offender had also engaged in significant rehabilitation while in custody and since being granted bail. The Supreme Court cancelled the original GBO and re-sentenced the offender to 10 months’ imprisonment, backdated to take into account time already spent in custody. The sentence is to be suspended upon the offender entering into a further GBO.

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12 December 2023

Fleury v DPP [2023] ACTCA 46

APPEAL – CRIMINAL LAW – Appeal against sentence where sentencing judge failed to exercise the discretion to order a drug and alcohol treatment order assessment in circumstances where referrals to the drug and alcohol treatment list were paused – appeal allowed – remitted to the sentencing judge for sentence according to law

The Court of Appeal has published its reasons for allowing a sentence appeal from a single judge of the ACT Supreme Court.  At sentence the appellant sought the sentencing option of serving his term of imprisonment by way of a drug and alcohol treatment order. The sentencing judge had been informed of an administrative decision to pause further referrals to the list at the time and so declined to the necessary assessment. The Court found that, in failing to exercise her discretion whether to order an assessment, the judge regarded a sentencing option as unavailable which, according to law, was available. The Court remitted the matter to the sentencing judge to sentence the offender according to law.

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12 December 2023

DPP v Barker [2023] ACTSC 378

CRIMINAL LAW – VERDICT – grievous bodily harm – threat to kill – plea of not guilty by reason of mental impairment under s 321(2) of the Crimes Act 1900 (ACT) – prosecution agrees special verdict should be entered – verdicts of not guilty because of mental impairment entered with respect to indictable counts and finding of not guilty because of mental impairment entered with respect to transferred count – order for detention made – nominated terms.

The Supreme Court has entered special verdicts of not guilty because of mental impairment to charges of grievous bodily harm, threat to kill, and common assault. Both the offender and victim were homeless, and the offending involved attacking the victim with a tree branch. Two medical experts were of the unanimous view that, at the time of the offending, the accused was suffering from a mental impairment (schizophrenia) such that he could not appreciate his conduct was wrong. The prosecution agreed to the entering of the special verdicts. The Court specified nominated terms totalling 5 years.

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6 December 2023

Ezekiel-Hart v ACT DPP [2023] ACTSC 373

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Application for review of decisions of Directors of Public Prosecution (ACT and Commonwealth) – application in proceeding to transfer proceeding to Federal Court – whether a “special federal matter” – whether special reasons for declining to transfer exist – where relief sought may be beyond the power of any court – special reasons established

The Supreme Court has dismissed an application brought by a defendant seeking the transfer of judicial review proceedings to the Federal Court.

The plaintiff is challenging separate decisions of the Director of Public Prosecutions for the ACT and the Director of Public Prosecutions for the Commonwealth (the CDPP) to takeover and discontinue certain prosecutions he commenced privately. The CDPP applied to transfer the proceedings to the Federal Court under federal cross-vesting legislation, arguing they constituted a ‘special federal matter’ and that the Supreme Court was therefore obliged to transfer them unless there were special reasons for retaining the matter.

The Court accepted that the claim against the CDPP is a special federal matter but found that a special reason existed for not transferring the proceedings, namely that there is a serious doubt as to whether the proceedings are amenable to judicial review at all and that should be resolved before transfer.

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8 December 2023

Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 5) [2023] ACTSC 370

PRACTICE AND PROCEDURE – INTEREST – Plaintiff failed to claim interest in its Defence and counterclaim – consideration of r 1619 of the Court Procedures Rules 2006 (ACT) – successful defence of set-off and counterclaim on the ground of mistaken payment – mistaken payments caused by second defendant – interest calculated on the whole of the amount from the date of the mistaken payment – no reason to limit plaintiff’s entitlement to interest – leave given to amend claim to include claim for interest – interest awarded

PRACTICE AND PROCEDURE – COSTS – Plaintiff seeks costs on an indemnity basis – second defendant seeks different costs orders for claim and counterclaim – where plaintiff successful on both its defence and counterclaim on the ground of mistaken payment – second defendant’s conduct deliberately caused the mistaken payments – no reason to award separate costs orders for defence and counterclaim – costs awarded in favour of plaintiff

The Supreme Court has awarded costs and interest in favour of Nova Builders Pty Ltd, which successfully defended a claim brought by Civil and Civic Corporation Pty Ltd. The court awarded costs on an indemnity basis, as Civil and Civic Corporation Pty Ltd’s conduct deliberately caused the mistaken payments which led to the proceedings. The court determined that interest should be calculated on the whole of the amount from the date of the mistaken payment.

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8 December 2023

Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 4) [2023] ACTSC 369

CIVIL LAW – RESTITUTION – Claim for restitution for the value of work and labour assessed by way of a quantum meruit – contracts discharged by agreement – works partially completed – no entitlement to payment for works done under the contracts at the time of discharge – choice made by plaintiff to accept works and engage different contractor – claim for restitution allowed

CIVIL LAW – ESTOPPEL – Whether entitlement to payment for works is precluded by estoppel arising from ostensible authority – first defendant held out general manager as having authority to deal on its behalf – general manager acted without authority to direct payment to second defendant – plaintiff relied on the representation and made payments to second defendant – claimant not entitled to deny general manager acted as its agent – claimant not entitled to deny mistaken payment made at its direction

CIVIL LAW – ESTOPPEL – whether estoppel removed where circumstances giving rise to the estoppel have subsequently been removed by recovery of mistaken payment – detriment extended beyond payment to third party to the court proceedings that arose as a result of the payment – maintenance of estoppel warranted to the extent costs remain unpaid

The Supreme Court has allowed a claim for restitution for the value of work and labour assessed by way of a quantum meruit. The court found that a series of contracts were discharged by agreement. At the time the contracts came to an end, the works the subject of the contract were partially completed. There was no contractual entitlement to payment for the works done at the time of the discharge.

The court considered a defence to the claim based upon estoppel. The general manager of the first defendant acted without authority to direct payments to the second defendant. However, the first defendant held out its general manager as having authority to deal on its behalf. The plaintiff relied on this representation and made the payments to the second defendant. The court found that the first defendant was not entitled to deny that the general manager acted as its agent and that the mistaken payment was made at its direction.

Finally, the court determined whether the estoppel was removed where the circumstances giving rise to the estoppel have subsequently been removed by recovery of the mistaken payment. The court found that the detriment suffered by the plaintiff extended beyond the mistaken payment to the court proceedings that arose as a result of the payment. In these circumstances, the maintenance of the estoppel is warranted to the extent the plaintiff’s costs remain unpaid.

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7 December 2023

R v McBride (No 3) [2023] ACTSC 344

EVIDENCE – PUBLIC INTEREST IMMUNITY – Claim for exclusion of evidence under s 130 of the Evidence Act 2011 (ACT) – where accused facing charges of theft and communicating documents relating to military information – Commonwealth seeks to exclude redacted parts of certain documents relating to intelligence and security cooperation with foreign governments and organisations – where claim is made over a small proportion of the total documents available to the accused – accused challenges exclusion on the basis that redactions are too broad – accused submits that redactions undermine his ability to defend the charges against him – whether evidence should be excluded under s 130 of the Evidence Act 2011 – whether exclusion of evidence should be on condition that the prosecution be stayed – evidence excluded – prosecution not stayed

The Supreme Court has upheld claims for the exclusion of evidence made by the Commonwealth under s 130 of the Evidence Act 2011 (ACT) on the basis that disclosure of the information would compromise Australia’s national security. The claims concerned parts of 8 documents. The accused sought a stay of the proceedings on the basis that it would be unfair to proceed without disclosure of the information protected by the Commonwealth’s claim. The court declined to grant a stay.

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5 December 2023

DPP v Kenyon [2023] ACTSC 365 (SCC 164 of 2022; SCC 165 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency in the second degree – act of indecency with young person under 16 years – “every parent’s worst nightmare” – guarded prospects of rehabilitation – active desire for desistance of further offending – sentenced to a term of imprisonment – nonparole period imposed

The ACTSC has sentenced an offender to an overall sentence of seven years’ imprisonment for the offences of act of indecency in the second degree and act of indecency with young person under 16 years. The Court imposed a nonparole period of four years.

The offending involved the pushing of a young school girl off her bike and choking her, before committing an act of indecency. The impacts of the offending on the victim and her family were inevitably significant.

The offender was deemed to have “guarded prospects of rehabilitation” but reported an “active desire for desistance of further offending”. The Court made recommendations including that the offender be appropriately assessed and have a proper treatment plan in place in the community to reduce his risk of sexual recidivism on release back to the community, and that he attend psychiatric and psychological assessment.

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5 December 2023

Glavinic v Commonwealth [2023] ACTSC 361

TORTS – TRESPASS, BATTERY AND WRONGFUL IMPRISONMENT – Police forced entry into residence – plaintiff arrested for obstructing police – where plaintiff resisted arrest and violent melee occurred – plaintiff injured during course of struggle – no unreasonable use of force – actions of police rendered tortious due to unlawful entry onto premises

POLICE POWERS – ENTRY – Police forced entry into residence while responding to report of suspected family violence – police claimed to be exercising powers of emergency entry – consideration of ss 188 and 190 of the Crimes Act 1900 (ACT) –whether there were reasonable grounds for belief held by police – reasonable grounds for belief not established – entry unlawful

CIVIL PRACTICE AND PROCEDURE – LIMITATION PERIODS – Limitation period of six months under s 435 of the Crimes Act 1900 (ACT) – whether entry done, or reasonably supposed to have been done, under the Act – meaning of “reasonably supposed to have been done” – s 435 requires subjective enquiry into what person supposed they were doing and objective qualification of reasonableness of the supposition – must accommodate circumstances of mistake of fact or law in the purported exercise of statutory powers – police believed they were acting lawfully – defence applies – judgment for defendants

POLICE POWERS – ARREST – Reasonable force – ss 212 and 222 of the Crimes Act 1900 (ACT) – plaintiff claims police used excessive force during violent melee – police exercised a degree of restraint consistent with training – use of force not unreasonable

TORTS – NERVOUS SHOCK – whether s 36 of the Civil Law (Wrongs) Act 2002 (ACT) applies to Commonwealth officers in proceedings in the ACT Supreme Court – not appropriate to determine basis upon which it applies where parties agree that it does and no proper contradictor for Commonwealth submissions

The Supreme Court has awarded judgment for the defendants in a personal injury case concerning an alleged unlawful entry to a home by police officers. The police officers responded to a suspected family violence incident and forced entry into a residence. Police claimed to be exercising their powers of emergency entry pursuant to s 190 of the Crimes Act 1900 (ACT). The plaintiff attempted to prevent police from entering and was arrested. A violent melee occurred, and the plaintiff was injured during the struggle. The court found that there was no unreasonable use of force by the police, however, the actions of the police were rendered tortious due to the initial unlawful entry onto the premises.

The defendants raised a limitation period defence pursuant to s 435 of the Crimes Act, which imposes a limitation period of six months for acts “reasonably supposed to have been done” under the Crimes Act. The court determined that s 435 required a subjective enquiry into what the police officers supposed they were doing and an objective qualification of reasonableness of the supposition. The court recognised that the limitation defence must accommodate circumstances of mistake of fact or law in the purported exercise of statutory powers. The court found that the police officers believed they were acting lawfully when they forced entry, and that the defence applied.

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4 December 2023

Permanent Custodians Ltd v Templin [2023] ACTSC 280

CIVIL LAW – APPLICATION – Application to set aside order for delivery of possession of land – where enforcement notice not served on the enforcement debtor

The Supreme Court has granted an ex parte application by a home-owner to have an order for possession of land set aside.

The application was brought on an urgent basis as the mortgagee was seeking to obtain possession of the home where the home-owner believed a settlement agreement had been reached. The Court held that the order for possession was obtained in breach of the rules of court because the required notices had not been duly served on the home-owner.  There was also an arguable case for estoppel as the lender had accepted payments pursuant to the alleged settlement.

Accordingly, the Court set aside the possession order and temporarily stayed the enforcement proceedings.

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4 December 2023

R v Kemppainen (No 3) [2023] ACTSC 323 (SCC 141 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – where offender subject to intensive correction order – where further offences committed during term of the order but dealt with after its expiration – meaning of “remainder of offender’s sentence” – whether necessary for Magistrate to commit the offender to the Supreme Court to be dealt with for the breach – whether in the interests of justice to cancel the intensive correction order

The Supreme Court has decided not to cancel an intensive correction order (ICO) after the offender was committed to the Court to be dealt with for a breach of the order.

The breach consisted in further offences committed during the term of the ICO.  However, the offender was not convicted for the further offences until after the ICO had expired.  Accordingly, there was no remainder of the sentence which the Court could order the offender to serve.  The Court noted that, in that circumstance, it may not have been necessary for the Magistrate to commit the offender to the Supreme Court to be dealt with for the breach.  In any event, given that the ICO had expired, there was no further action the Supreme Court could take.

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1 December 2023

DPP v van de Zandt (No 3) [2023] ACTSC 359 (SCC 310 of 2022)

CRIMINAL LAW –  JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a young person – act of indecency on a young person – historical allegations – where the offender was in a position of trust – absence of remorse – consideration of age and health of the offender – good character – suspended sentences of imprisonment imposed

The Supreme Court has sentenced an offender to two and a half years imprisonment, suspended after six months for two historical sexual offences.

The offender was the uncle of the victim, who was 15 at the time. The assault occurred while she slept in his bed in 1986. The offending was assessed as falling in the mid-range of objective seriousness, considering it was brief and opportunistic but also a very serious breach of trust.

As well as considering the seriousness of the offences, the Court considered that the offending appeared to be an aberration from his otherwise good behaviour, that he demonstrated no actual remorse in the proceedings, and that imprisonment would impose significant hardship on him and his family given his age and poor health.

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1 December 2023

DPP v Guarini (No 3) [2023] ACTSC 362 (SCC 22 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonestly obtain property by deception – offences committed whilst on conditional liberty – significant criminal history – re-sentence – Good Behaviour Order

The Supreme Court has sentenced Kobi Guarini to a 12 month Good Behaviour Order for an offence of dishonestly obtaining property. The offender was found guilty following a judge alone trial. The offender used a debit card belonging to someone else to purchase some beer, cigarettes and bakery items. The Court noted the offender’s criminal history, poor prospects of rehabilitation and previous breaches of Court orders. However, the Court observed that it, and indeed the community, should not abandon an offender and refuse them the assistance to turn their life around. The Court said rehabilitation, both in this case and many others, is the ultimate purpose of sentencing and serves to protect the community and address the root causes of criminal behaviour. The Court also re-sentenced the offender in relation to previous driving offences.

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30 November 2023

Hayne v Zheng [2023] ACTSC 326

APPEAL – APPEAL FROM MAGISTRATES COURT – Sentence appeal – where respondent conceded multiple specific errors – re-sentence – “fairly typical” example of these types of offences – substance abuse – prospects for rehabilitation – significant criminal history – not necessary to determine whether jurisdiction to hear appeal of licence disqualification periods – sentenced to term of imprisonment – nonparole period imposed

The ACTSC has upheld an appeal on sentence from the Magistrates Court where the respondent to the appeal conceded multiple specific errors. The errors included a failure to impose a nonparole period and failure to take into account pleas of guilty. In light of these errors, the matter proceeded to resentence.

The Court engaged in a re-sentencing exercise and considered the offender’s substance abuse, criminal history and prospects for rehabilitation. The Court sentenced the offender to a term of imprisonment, with a nonparole period of one year and seven days, expiring 4 December 2023.

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30 November 2023

Jorgensen v The Supreme Court of the Australian Capital Territory (No 2) [2023] ACTSC 358

ADMINISTRATIVE LAW – Judicial review – competency of application for judicial review – where applicant has been declared to be a vexatious litigant – whether the applicant requires leave to bring these proceedings pursuant to s 67A of the Supreme Court Act 1933 (ACT) – whether an order declaring an applicant vexatious is an administrative decision – Toeh direction – application stayed

The applicant sought judicial review of an order declaring him a vexatious litigant. The Supreme Court held that the applicant was first required to seek leave of the Court to institute those judicial review proceedings.  The Court said, following a declaration that person is a vexatious litigant pursuant to s 67A of the Supreme Court Act 1933 (ACT), a person is prohibited from instituting or continuing any proceedings without the leave of the Court. The Court held that a judicial review proceeding is a proceeding within the defined term in s 67A of that Act. In addition, the original named defendant was the judicial officer that declared the applicant to be a vexatious litigant.  That judicial officer was not the proper defendant under the Rules and made an order substituting the Supreme Court of the ACT as the defendant. The Court also said the declaration that Mr Jorgensen was a vexatious litigant was judicial and not of administrative character and therefore not amendable to judicial review. The Court ordered that Mr Jorgensen’s application be permanently stayed.

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30 November 2023

Jorgensen v The Supreme Court of the Australian Capital Territory [2023] ACTSC 357

PRACTICE AND PROCEUDRE – Communications with chambers – emails not within the terms of Practice Direction 1 of 2022 – application of Tugrul exceptions – communications not appropriate

The Supreme Court has determined that email communications sent by a self-represented litigant to judge’s chambers were inappropriate and did not accord with the Court’s Practice Directions. The Court said that there should be no communication with judicial chambers without the prior knowledge and consent of the other parties in the proceeding, unless the communication responds to one from the judge’s chambers or is authorised by a direction, relates to a trivial matter of practice or administration, is in an ex parte matter or is sent in exceptional circumstances. The emails were found to be inappropriate as prior consent was not sought or obtained by the parties and none of the exceptions applied.

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30 November 2023

Jorgensen v Wilson [2023] ACTCA 45

APPEAL – Procedure – Vexatious litigant  – whether appellant has been declared a vexatious litigant –  whether appellant has right of appeal from declaration that he is a vexatious litigant – Section 67A of the Supreme Court Act 1933 (ACT) – whether an order declaring appellant a vexatious litigant is interlocutory or final –  whether leave is required under s 67A to bring an application for leave to appeal –  definition of “proceeding” –  whether the filing of a notice of appeal is a “proceeding” –  application stayed

The Supreme Court has held that the appellant, Mr Jorgensen, who had been declared a vexatious litigant, had no right of appeal against such an order but needed to seek leave to appeal from that order. The Appellant sought to appeal the order declaring him a vexatious litigant. The question for the Court was whether a right of appeal existed from a person being declared a vexatious litigant pursuant to s 67A of the Supreme Court Act 1933 (ACT) or whether leave to appeal was required, whether such an order is interlocutory or final and whether it is necessary for a person appealing that declaration to first seek leave of the Court to make an application for leave to appeal. The Court said that following a declaration that a person is a vexatious litigant, no right of appeal exists from such an order. Additionally, such an order is interlocutory in nature and an appellant requires leave to appeal from an interlocutory order. The Court held that at a practical level, an application for leave under the Act may be heard at the same time as the application for leave to appeal itself. The Court ordered that Mr Jorgensen’s appeal be permanently stayed. The Court also observed how harmful vexatious litigants can be, not only to the Court, but to other litigants as well.

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30 November 2023

DPP v Lucas [2023] ACTSC 335 (SCC 36 of 2023; SCC 37 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – use of carriage service to menace, harass or cause offence – burglary – theft – minor theft – substantial criminal history – offending associated with drug use – Drug and Alcohol Treatment Order made

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29 November 2023

Austen v Tran [2023] ACTCA 44

Judgment summary

APPEAL – CIVIL LAW – Medical negligence – where appellant had brought a claim in medical negligence against general practitioner for delay in the diagnosis of non-Hodgkin’s lymphoma – where appellant had claimed before primary judge that breach of duty constituted by general practitioner ordering only blood tests and no follow-up appointment where she claimed severe leg pain – where primary judge found no breach of duty and alternatively causation not established – where on appeal appellant claimed that primary judge erred in failing to find general practitioner had breached duty at first consultation – where appellant further claimed primary judge erred by failing to consider the matters in s 43(2)(a) and (b) of the Civil Law (Wrongs) Act 2002 (ACT) – where primary judge had the benefit of hearing evidence – no error in failing to find breach of duty – no failure to consider s 43(2)(a) and (b) of the Act – rejection of appellant’s grounds of appeal regarding primary judge’s findings dispositive of appeal – unnecessary to address grounds directed to primary judge’s findings as to causation – appeal dismissed

The Court of Appeal has dismissed an appeal from a single judge of the Supreme Court holding that the primary judge was correct in finding that a GP had not breached his duty of care to a patient.

The plaintiff was diagnosed with non-Hodgkin’s lymphoma and after a period of remission her prognosis became terminal. The plaintiff claimed that the defendant had breached his duty of care by not fully investigating the symptoms and complaints of the plaintiff at the first consultation. The primary judge found that whilst this was the case, it did not fall to the level of being less than the care that could be expected of a reasonable general practitioner in all the circumstances.

On appeal the Court held that the primary judge had considered all of the necessary factual and legislative factors when forming the view that there had been no breach of duty. The Court held that it was unnecessary to address the appeal grounds in relation to causation or the issues raised by the notice of contention.

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29 November 2023

Findex Group Pty Ltd v McKay (No 2) [2023] ACTCA 43

COSTS – Whether costs should be withheld from successful party – whether award of solicitor/client or indemnity costs should be awarded to successful party – excessively long Notice of Appeal – party/party costs awarded – costs to be assessed following finalisation of first instance proceedings

The Court of Appeal has allowed costs to a successful appellant on a party/party basis. The appellant applied for indemnity costs but was not able to point to factors justifying such an order. Separately, the Court of Appeal directed the registrar, when assessing costs, to consider whether the appellant’s notice of appeal is unnecessarily lengthy and whether the costs of that document should be disallowed for that reason.

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29 November 2023

Leeson v Grech [2023] ACTSC 355

APPEAL – CRIMINAL LAW – Crown appeal against sentence – whether the sentence imposed was contrary to law – where an offender was eligible for parole on earlier sentences – where the offender is sentenced for further offences – whether the sentencing magistrate erred by failing to re-set a non-parole period for the total sentence term – whether the magistrate interfered with the earlier exercise of sentencing discretion by backdating beyond fixed sentences – misconception of the functions of the judiciary and the Sentence Administration Board

The appeal was brought on a single ground that the sentences imposed were contrary to law. When the respondent was sentenced, he was subject to lengthy terms of imprisonment (with a fixed non-parole period) imposed for previous offending. The legislation requires that, in such cases where an offender is to be sentenced for further offences while there is an existing non-parole period attached to previous offences, it is automatically cancelled, and the judicial officer must fix a new non-parole period “as if” they had sentenced the offender for the previous offences. The sentencing magistrate in this case did not set a non-parole period, but rather backdated the sentence to account for time in custody and suspended the sentences, fixing a release date.

The Court, explaining both the scheme of non-parole in the Territory and the differing functions of the judiciary and the Sentence Administration Board, upheld the appeal and resentenced the respondent so that the sentences were according to law.

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28 November 2023

In the Estate of Karina June Tyson [2023] ACTSC 353

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – RECTIFICATION – testator’s intention – principles of rectification – s 12A of the Wills Act 1968 (ACT) – whether rectification of will ought to be made so as to give effect to testator’s probable intention – additional assets accrued after execution of will – will did not include residuary clause – where all interested parties consent to rectification – application for rectification granted.

The Supreme Court made orders rectifying the will of Karina June Tyson (the testator), to reflect her probable intentions with respect to assets accrued after the execution of her will. The testator left the majority of her assets to the plaintiff, to be distributed to their family as the plaintiff sees fit. The testator’s will, however, did not include a residuary clause. The testator subsequently accrued significant assets which were not provided for in the will. The Court held that it was the testator’s intention to leave the entirety of her estate (including the assets accrued following the execution of the will) to the plaintiff for distribution. The Court made orders by consent rectifying the will to that effect.

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27 November 2023

In the Estate of Marianne Mildred Ilbery [2023] ACTSC 349

WILLS, PROBATE & ADMINISTRATION – INFORMALITY – Wills Act 1968 (ACT) – Where will was signed by the deceased but only witnessed by one person – whether deceased intended document to constitute her last will

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27 November 2023

Core Building Group Pty Ltd v Dickson Developments Precinct 1 Pty Ltd (No 2) [2023] ACTSC 221

FREEZING ORDERS – Freezing orders sought against two companies – where each company is a special purpose vehicle for a construction project – where each company called upon security bonds provided by builder – plaintiff fears dissipation of assets in order to frustrate potential judgment – freezing orders granted on an interim basis at prior hearing – whether freezing orders should continue against each of the companies – where each company has put on evidence as to what steps have been taken with the money from the bonds called upon – evidence less than forthcoming – whether there exists a good arguable claim against each company – freezing order continued against second plaintiff – freezing order discontinued against first plaintiff

The Supreme Court has made further orders with respect to freezing orders previously made against two companies. The companies are each developers of a construction project. Each company called upon security bonds in circumstances which the plaintiff asserts suggests that the companies have an intention of frustrating any potential judgment which the plaintiff might be entitled to. The Court determined that the freezing order against one of the companies should be continued, but that the other should be discontinued.

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27 November 2023

R v Dunnicliff [2023] ACTSC 350 (SCC 38 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to posses/control child abuse material – use carriage service to solicit child abuse material – causal link between stunted psychosocial development and offending – reduced moral culpability – youth and positive prospects of rehabilitation – sentence of imprisonment to be served by way of Intensive Corrections Order with conditions for treatment

The ACT Supreme Court has sentenced an offender to a term of two years’ imprisonment to be served by of an Intensive Corrections Order. The offences involved the possession and solicitation of child abuse material.

The offender had untreated mental health concerns at the time of the offending. The offender has taken responsibility and demonstrated remorse for the offending. The Court found that the offender has positive prospects of rehabilitation if he continues to access mental health care and treatment.

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27 November 2023

Public Trustee and Guardian v Dirkis [2023] ACTSC 316

PROBATE – APPLICATION FOR JUDICIAL ADVICE – Where application sought in the context of a dispute likely to be the subject of further proceedings – where application seeks restoration of grave plot to prior condition – no reference to applicable legal principle – where application seeks orders against non-party – application dismissed

The Supreme Court has dismissed an application by the Public Trustee for judicial advice in circumstances where a past executor has evinced an intention to make claims against the estate. Those claims, if they are brought, will nullify any finalising effect of the judicial advice. In those circumstances, the Supreme Court declined to accede to the application for advice.

The Court also dismissed an application from the past executor for orders sought in relation to the estate. The application was dismissed on the basis that the applicant had not established the power of the court to grant the relief and because part of the relief was sought against a non-party.

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24 November 2023

Ryan v Cheqrouni [2023] ACTSC 329

CIVIL LAW – PRACTICE AND PROCEDURE – Application to transfer proceedings – where claim constituted by claims of liquidated and unliquidated damages – where amount claimed in liquidated damages exceeds jurisdictional limit of Magistrates Court – whether transfer should be granted – transfer allowed

The Supreme Court has allowed a transfer of a claim from the Magistrates Court to the Supreme Court. The transfer was sought following a refusal of the Registrar of the Magistrates Court to accept for filing an amended statement of claim seeking damages greater than the jurisdictional limit of that court.

The court held that, in circumstances where the claim is not on its face an abuse of the court’s process and where there is no other reason why the claim should not be transferred, the transfer was granted.

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24 November 2023

DPP v Jewell [2023] ACTSC 348 (SCC 124 of 2023; SCC 270 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated threat to kill – aggravated stalking – contravene family violence order – breach of good behaviour order – where offending objectively serious – application of Bugmy and Verdins factors – sentence of imprisonment imposed

The Supreme Court has imposed a sentence of 7 years, 5 months and 19 days with a non-parole period of 3 years and 9 months, in respect of a number of offences.  They included aggravated threat to kill, aggravated stalking, breach of a family violence order and the imposition of previously suspended sentences in the Magistrates Court.  The conduct was objectively serious and aggravated because of the family violence context.  The offender had a disadvantaged background and mental health conditions which reduced his culpability.

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23 November 2023

Jeffcott v Davesi Construction Group Pty Ltd [2023] ACTSC 234

CIVIL LAW – APPLICATION – Application for joinder – application to rely on supplementary expert material – whether it is inappropriate to join a defendant – whether this obligation should be dispensed with – whether the supplementary expert material represents new claims

The Supreme Court has published its reasons for determining an interlocutory application in proceedings involving a building dispute. The principal issue raised by the application was whether the plaintiff was required under rule 213 of the Court Procedures Rules to join as a defendant a party who was in the defendant’s camp.  The Court dispensed with that requirement.

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23 November 2023

McBride v R [2023] ACTCA 42

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Proposed appeal from interlocutory ruling concerning directions to be given to the jury in a criminal trial – where ruling sought from trial judge at the outset of the trial and prior to empanelment of the jury – where trial judge ruled that the jury would not be directed that the accused’s “duty” for the purposes of s 73A of the Defence Act 1903 (Cth) and s 70 of the Crimes Act 1914 (Cth) extended to acting in the “public interest” or “Australian public interest” even where that was in contravention of a lawful order that had been given to the accused – where trial judge ruled that the directions to the jury would be framed in a manner that recognises that a lawful order may define the scope of the accused’s duty – where ruling not obviously wrong – whether correctness of ruling attended by sufficient doubt to warrant interrupting criminal trial – undesirability of fragmenting criminal trials

The Court of Appeal has dismissed an application for leave to appeal from interlocutory orders of the trial judge about the directions to be given to a jury regarding the “duty” of the accused, who was a military officer in the army at the time of the alleged offences.  The Court held that there was insufficient doubt about the correctness of the trial judge’s orders to warrant interrupting the trial, particularly where significant Court resources are required to accommodate the trial and there would be no substantial injustice to the accused.  The Court noted that it is preferable for any appeal to be determined by reference to established facts and evidence rather than in a hypothetical statutory vacuum.

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22 November 2023

R v Gardner (No 4) [2023] ACTSC 275 (SCC 77 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of good behaviour order – deferred sentence – cancellation of good behaviour with imposition of suspended sentence – time spent in residential rehabilitation – where the offender has embraced the therapeutic process

The Supreme Court has sentenced an offender for breaching a good behaviour order by committing a further offence.

The Court cancelled the 12 month good behaviour order and imposed a suspended sentence for 8 months, on conditions that he be of good behaviour and continue rehabilitation. The Court noted the offender’s exemplary progress in his path of rehabilitation and took the period the offender spent in residential drug rehabilitation into account on sentence.

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22 November 2023

Fleet v Leeson (No 4) [2023] ACTSC 225

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – amending previous orders imposed

The Supreme Court has resentenced an offender for breaching two good behaviour orders.

The offender breached a family violence order by attending the address of the protected person at her request. Upon the recording of that conviction, the Court was required to cancel the good behaviour orders and impose the suspended sentences or resentence the offender. The Court resentenced the offender, imposing terms of imprisonment to be served concurrently by intensive correction for a period of 12 months. The Court found that the importance of upholding orders of the Court could properly give way to the interests of rehabilitation, having regard to the very strong progress the offender had made.

The original orders were corrected in a subsequent judgment to conform to the requirements of sentencing legislation.

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22 November 2023

Fleet v Leeson (No 3) [2023] ACTSC 206 (SCA 16 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of a good behaviour order – cancellation of previous good behaviour order and resentencing to intensive corrections order – consideration of whether the importance of upholding orders of the Court should properly give way to the interests of rehabilitation

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22 November  2023

DPP v Welsh (No 2) [2023] ACTSC 347

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender completed first stages of residential rehabilitation program – offender offered extension of time with rehabilitation program – substantive sentence proceedings already adjourned once – whether adjournment of sentence until after completion of program is appropriate –  s 27 Crimes (Sentencing) Act 2005 (ACT) – Griffiths remand – whether s 27 displaced common law power to impose Griffiths remand – Griffiths remand imposed.

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22 November 2023

DPP v Moala (No 2) [2023] ACTSC 273

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – where applicant is awaiting sentencing for indictable offence – where there is no presumption of bail – flight risk

Bail is revoked for offender found guilty of choking.

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22 November 2023

DPP v Moala; DPP v Kata [2023] ACTSC 264

CRIMINAL LAW – EVIDENCE – sexual offence proceedings – application by one accused for leave to cross-examine the complainant as to previous consensual sexual activity with the other accused – consideration of the application of s 76(1) of the Evidence (Miscellaneous Provisions) Act – power to dispense with the requirement to make the application in writing – where proposed cross-examination relevant to a fact in issue

During a trial involving allegations of sexual assault against two accused, the Supreme Court has granted leave to counsel for the first accused to cross-examine the complainant on prior consensual sexual intercourse with the second accused which occurred shortly before the alleged assault.

The legislation requires leave to adduce evidence of sexual activities of the complainant and that such applications be made in writing. Notwithstanding the application was made orally, the Court held that the questioning was relevant to the defence of the first accused who did not have prior consensual sexual intercourse with the complainant.

Accordingly, the Court dispensed with the requirement that the application be made in writing and leave was granted to counsel for the accused to question the complainant on a limited basis.

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22 November 2023

DPP v Ali (No 3) [2023] ACTSC 345 (SCC 246 of 2022; SCC 245 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 years – offender employed as educator at a childcare centre – single act of indecency on 4 year old child attending centre – significant breach of trust – strong need for general deterrence, punishment, and denunciation – section 10 threshold crossed – sentence of full-time imprisonment imposed.

The Supreme Court has sentenced an offender to 18 months imprisonment (with a 12 month non-parole period) for committing an act of indecency on a person under the age of 10 years. The offences were committed against a 4-year-old child in the course of the offender’s employment at a childcare centre. The offending involved a significant breach of trust. The offender did not take responsibility for the offending or display remorse. The Court held that significant weight must be given to deterrence, denunciation and recognition of the harm caused.

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22 November 2023

R v McBride (No 2) [2023] ACTSC 330

CRIMINAL LAW – PRACTICE AND PROCEDURE – Where accused sought determination prior to the commencement of trial of the directions which will be given to the jury as to the accused’s legal duty – reasons provided by court – reasons not accompanied by orders – where accused seeks leave to appeal – accused declined invitation for decision to be crystallised by orders – whether orders should be made – orders made

Following the hearing and dismissal of the accused’s submissions on the meaning of “duty” in relation to his charges, the Supreme Court has determined that orders should be made to give effect to those reasons.

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22 November 2023

R v McBride [2023] ACTSC 328

CRIMINAL LAW – STATUTORY INTERPRETATION – Accused charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty” – accused sought a determination of the directions that will be given to the jury in relation to the references to “duty” – whether “general orders” as defined in the Defence Force Discipline Act 1982 (Cth) could define the scope of the accused’s duties – obligations under the Discipline Act not enforceable in civilian courts – lawful orders enforced under the Discipline Act can define the scope of the accused’s duties for the purposes of the offences charged – jury will be directed that the rules of the Discipline Act inform the content of the accused’s duties

CRIMINAL LAW – STATUTORY INTERPRETATION – Accused charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty” – accused sought a determination of the directions that will be given to the jury in relation to the references to “duty” – whether the accused had a duty to act in the “Australian public interest” – accused submitted that this duty arose from the terms of his oath and s 45 of the Defence Act 1903 (Cth) – not possible to read the terms of the oath or s 45 in the manner contended for by the accused – the Australian public interest is advanced by compliance with duties imposed by law – accused’s duty does not allow him to act contrary to a lawful order on the basis that it is in the “Australian public interest”

CRIMINAL LAW – STATUTORY INTERPRETATION – Accused charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty” – accused sought a determination of the directions that will be given to the jury in relation to the references to “duty” – whether s 122B of the Defence Act 1903 (Cth) resulted in the accused’s duties as a legal officer prevailing over Defence Instructions – not appropriate to resolve these issues at this stage

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Oral application for referral of matter to the Court of Appeal pursuant to s 37E(2) of the Supreme Court Act 1933 (ACT) – effect of referring matter would delay any final determination for months if not years – proceedings on foot in this court since 2019 – referring the matter to the Court of Appeal at this stage is contrary to administration of justice – matter not referred – accused retains rights of appeal

The Supreme Court has determined a series of issues about the concept of “duty” ahead of a jury trial of a military officer. The accused was charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty”. The accused sought a determination of the directions to be given to the jury in relation to the references to “duty”.

The accused contended that lawful orders enforceable under the Defence Force Discipline Act 1982 (Cth) (Discipline Act) did not define the scope of his duty under s 73A of the Defence Act or s 70 of the Crimes Act. He also contended that by reason of the oath that he took upon enlistment and s 45 of the Defence Act he had a duty to act in the public interest even if that contravened a lawful order given to him as a military officer. The court considered whether “general orders” as defined in the Discipline Act could define the scope of the accused’s duty for the purposes of ss 73A and 70. The court determined that lawful orders enforced under the Discipline Act could define the scope of the accused’s duties for the purposes of ss 73A and 70, even though obligations under the Discipline Act were not enforceable in civilian courts. The jury will therefore be directed that the rules of the Discipline Act inform the content of the accused’s duty.

The court also considered whether the accused had a duty to act in the “Australian public interest” arising from the terms of his oath and s 45 of the Defence Act. The court found that it is not possible to read the terms of the oath or s 45 in the manner contended for by the accused. The court found that the Australian public interest is advanced by compliance with duties imposed by law, and that the accused’s duty does not allow him to act contrary to a lawful order on the basis that it is in the “Australian public interest”.

Finally, the court determined an application for referral of the matter to the Court of Appeal. The court found that a referral would have the effect of delaying final determination of the matter for months if not years, and that referring the matter at this stage is contrary to the administration of justice.

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21 November 2023

Wolter v Broomhall (No 2) [2023] ACTSC 343

APPEAL – PRACTICE AND PROCEDURE – Application for costs – appeal against conviction in the Magistrates Court – appeal upheld on narrow ground and remitted to Magistrates Court for redetermination – whether Supreme Court has jurisdiction to award costs of the earlier proceedings in the Magistrates Court under ss 218 and 244 of the Magistrates Court Act 1930 (ACT) – costs award not appropriate as final determination has not been made – no order for costs made.

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21 November 2023

DPP v Makoi (No 4) [2023] ACTSC 338

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – witnesses – failure of witness to continue to attend Court pursuant to subpoena to give evidence at trial – witness commenced evidence in court – witness giving evidence via AVL – witness ended AVL call during cross-examination – witness subsequently uncontactable – failure to attend without just cause or reasonable excuse – criminal proceedings under s 719 of the Criminal Code 2002 (ACT) more appropriate than contempt proceedings – no direction made to begin contempt proceedings under r 2502 of the Court Procedures Rules 2006 (ACT).

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21 November 2023

DPP v Makoi (No 3) [2023] ACTSC 337 (SCC 13 of 2022; SCC 14 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – assault occasioning bodily harm – damage property – home invasion of a serious nature – offender has refugee background – moderate personality disorder and mental health concerns – protective factors in offender’s life supportive of rehabilitation – s 10 threshold crossed - whether Intensive Corrections Order appropriate in the circumstances– Intensive Corrections Order imposed.

The Supreme Court has sentenced Kock-Kedhia Makoi to a total of 3 years, 8 months and 7 days imprisonment for the offences of aggravated burglary, assault occasioning actual bodily harm and damage property. The offending occurred within the victim’s home and was retribution for an earlier alleged incident. The offender is a refugee, has been diagnosed with a moderate personality disorder, has a limited criminal history, and some protective factors in her life to support her rehabilitation. The offender was found suitable for an Intensive Corrections Order, and was ordered to serve the sentence by way of ICO.

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20 November 2023

In the matter of an adoption [2023] ACTSC 339

ADOPTION – DISPENSATION APPLICATION – Where birth mother refused to consent to adoption of child – where child has resided with the same foster carers since infancy – where no realistic prospect of child being returned to either biological parent – dispensation order made

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20 November 2023

Palmer v Australian Capital Territory (No 2) [2023] ACTSC 340

CIVIL LAW – intentional torts – claim for damages for assault and battery – where prisoner assaulted by corrections officer during the course of being extracted from his cell – where the prisoner was compliant with instructions and was not resisting the extraction – whether use of force necessary and reasonable – where the corrections officer in question did not give evidence at the hearing – inability of defendant to prove statutory defence based on authorised use of force in the management of prisoners

PRACTICE & PROCEDURE – PLEADINGS – where defendant failed to plead its version of facts where that differed from the version of facts pleaded by the plaintiff – oral application to amend defence on second day of trial – consideration of case management principles

The Supreme Court has granted judgment in favour of a plaintiff who was assaulted by a corrections officer while being extracted from his cell at the AMC. The prisoner was at all times compliant with instructions and did not resist. The Court found that the use of force by the corrections officer in throwing the prisoner to the ground when he entered the cell and then using the “head-down-arms-up” hold to transport the plaintiff was not necessary and reasonable in the circumstances. The assault caused a physical injury to the plaintiff’s shoulder that will require surgery.  He was awarded approx. $160,000 in damages.

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20 November 2023

Tong v Tong (No 2) [2023] ACTSC 336

PRACTICE AND PROCEDURE – COSTS – Deceased Estate – where parties had mixed success on overlapping issues – whether costs ought to be paid out of estate or by defendants personally – whether interests of justice served by apportionment

PRACTICE AND PROCEDURE – ORDERS – Scope of orders that can be sought under liberty to apply following final judgment – whether claims for interest and substitution of trustee “working out the order”

The Supreme Court has made ancillary orders and costs orders concerning a deceased estate and trust fund dispute.

A substantive judgment earlier this year declared that a real property asset was held on constructive trust, set aside a gift made inter vivos, and made orders for family provision. Arising out of those orders, the ancillary orders dealt with the transfer of assets and records of the estate and trust fund to the ACT Public Trustee and Guardian.

The plaintiffs had sought other relief, but it was found to travel beyond the scope of the liberty to apply for ancillary orders. For example, the plaintiff’s application to substitute the executor of the estate and trustee was unsuccessful as it was not directed to “working out” the existing orders.

The Court also made costs orders in favour of the plaintiffs, finding that they were substantially successful in the proceeding. Further costs orders were made apportioning the costs of the Estate and the Trust fund.

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17 November 2023

DPP v Torbert [2023] ACTSC 332 (SCC 40 of 2022; SCC 19 of 2023; SCC 274 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – damage to property – assault occasioning actual bodily harm – threat to kill – failing to comply with a s 3LA order – Bugmy principles – mental health – low prospects of rehabilitation – risk of reoffending – sentence of full-time imprisonment

The Supreme Court has sentenced Ivan Torbert to 3 years and 5 months for offences including damage to property, assault occasioning actual bodily harm, non-compliance with a s 3LA order and aggravated threat to kill. The offender was sentenced in relation to two separate occurrences of offending. The first being an attempt to enter a victim’s house and swinging an axe at that victim’s hand. This was done with a co-offender. The second set of offences related to the offender’s ex-partner where he assaulted her and threatened her with a knife. The Court set a non-parole period of 2 years, which was backdated to take into account the offender’s time in custody and also considered the offender’s mental health and upbringing.

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17 November 2023

DPP v Hudson [2023] ACTSC 333 (SCC 172 of 2022; SCC 173 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency – attempted sexual intercourse without consent – choke/suffocate/strangle – property damage – common assault – victim was a sex worker in a brothel – objective seriousness – Bugmy principles – risk of reoffending – hardship on offender’s family – no prior sexual offending – sentences of imprisonment

The Supreme Court has sentenced Darrell Hudson to 4 years and 9 months with a non-parole period of 2 years and 6 months for offences including sexual intercourse without consent, acts of indecency and choke, suffocate or strangle. The offences were committed against a sex worker at a brothel. The court noted that offenders are sentenced in order to protect the community of which sex workers are a part. Sex workers deserve the protection of the criminal law just as much as accountants, factory workers, doctors, and bus drivers.

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16 November 2023

Wolter v Broomhall [2023] ACTSC 331

APPEAL – PRACTICE AND PROCEDURE – Appeal against decision to refuse stay application in the Magistrates Court – whether Supreme Court has jurisdiction to hear appeal against interlocutory decision of the Magistrates Court – where the decision had no impact on conviction – whether Magistrates Court has jurisdiction to hear ‘back-up’ charges – Magistrate correctly found that the Magistrates Court had jurisdiction to hear and determine the ‘back-up’ charges – stay application correctly dismissed.

APPEAL – CRIMINAL LAW – Appeal against conviction in the Magistrates Court – where conviction relied on in-court identification of the accused on the basis of CCTV footage – where Supreme Court unable to make new in-court identification – quality of footage was sufficient to found identification.

APPEAL – PRACTICE AND PROCEDURE – Failure of Magistrate to give adequate direction and reasons with respect to in-court identification – where identification evidence was the sole basis for conviction – where direction was given in generic terms – further reasons were required – appeal upheld.

The Supreme Court has partly allowed an appeal from a conviction for driving offences in the Magistrates Court. The Court dismissed a challenge to the Magistrate’s Court jurisdiction to hear “backup charges”. The Court found that although the CCTV footage relied on was sufficiently clear to identify the offender, the reasons given by the Magistrate for that identification were inadequate. As the appellant did not appear at the appeal, the Court could not compare the offender with the CCTV footage for itself, and remitted the proceedings to the Magistrates Court.

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15 November 2023

DPP v Austin (No 5) [2023] ACTSC 327

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –– jurisdiction of supreme court to award costs in criminal cases – whether statutory authority required – r 6826 of the Court Procedures Rules 2006 (ACT) – exercise of courts discretion to award costs against the Crown – failure to notify court of unavailability of overseas witness when trial allocated hearing date – evidence of prosecution witness given pursuant to examination order – costs awarded.

The Supreme Court has directed that the Director of Public Prosecutions pay the applicant’s costs of the examination of a witness that proceeded before trial. The DPP failed to inform the Court that the witness would be overseas and unavailable to give evidence at trial when the matter was listed for trial. The witness was examined prior to the trial pursuant to an order made under r 6813 of the CP Rules. The Court exercised its discretion under rule 6826 of the CP Rules to award the costs of the examination to the applicant.

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14 November 2023

CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 2) [2023] ACTSC 321

CIVIL LAW – APPLICATION – Application for interlocutory relief pending final hearing  – commercial tenancy – where original lease terminated by agreement – where interim lease granted pending sale of business on terms providing for new lease with purchaser – where sale subject to lessor’s consent – where lessor entitled to refuse consent only if it is reasonable in all the circumstances to do so – where lessor refused consent – substantive claim by lessee for specific performance on ground that refusal of consent was not reasonable  – where interim lease terminated by effluxion of time – application by lessee for interlocutory relief permitting it to occupy premises on terms of proposed new lease pending determination of substantive claim

The Supreme Court has dismissed an application for interlocutory relief pending a final hearing. The proceedings concern a commercial tenancy where an interim lease was granted pending sale of the business.  The sale required the lessor’s consent which was refused. Pending the resolution of its claim for specific performance, the lessee sought to remain in possession on the terms of the new lease to be entered into by the purchaser.  The application was brought urgently to enable the purchaser to have the benefit of an option to renew the (yet-to-come-into-existence) lease.  The Court dismissed the application.

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10 November 2023

DPP v Manns [2023] ACTSC 71

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Nonpublication orders – whether nonpublication orders should be made – witnesses concerned with repercussions of giving evidence if identities disclosed – orders made until the conclusion of the trial of the accused

CRIMINAL LAW – EVIDENCE – Admissibility of photographs which form basis of opinions – photographs of firearm found on accused’s phone – opinions of firearm examiner and fingerprint examiner – whether temporal connection between photographs and charged offence gives rise to unfair prejudice – significant strand in prosecution’s circumstantial case – photographs and opinions not inadmissible

The Supreme Court has made nonpublication orders for the names of two prosecution witnesses until the conclusion of the trial of the accused. The witnesses were concerned with the repercussions of giving evidence if their identities were disclosed. The court was satisfied that it was in the interests of the administration of justice that the names of the witnesses should not be published and that this was established up until the conclusion of the trial.

The court also ruled on the admissibility of evidence of opinions of a firearm examiner and a fingerprint examiner and the photographs upon which those opinions were based. The photographs examined were of eight images of a firearm which were found on the accused’s phone after it was seized by police eight months prior to the alleged offences subject of the trial.

The accused submitted that the lack of temporal connection between the images and the alleged offending gave rise to a danger of unfair prejudice. The court held that the opinions and photographs were a significant strand in the prosecution’s circumstantial case and that the risk of unfair prejudice could be appropriately addressed by directions to the jury.

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10 November 2023

DPP v Osmani (No 2) [2023] ACTSC 128 (SCC 259 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – guilty plea to offence of obtaining property by deception – offence committed by joint commission – where offenders purported to purchase e cigarettes with an envelope of papers cut to resemble banknotes – offending in mid-range – offender's role included driving the getaway vehicle – offender did not comply with ICO assessment in circumstances where he requested an assessment – sentence of suspended imprisonment imposed

The Supreme Court has sentenced Albion Osmani to 12 months’ imprisonment for obtaining property by deception, namely e-cigarettes, to be suspended upon entering into a good behaviour order. The offending was considered to be in the mid-range of objective seriousness, and the offender was found to  not have engaged in the offending as a leader. The offender did not permit an Intensive Corrections Order assessment to be undertaken at his family home, and provided no reason for adopting this position.

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10 November 2023

DPP v John [2023] ACTSC 311 (SCC 24 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – joint commission – subjective circumstances – genuine remorse – rehabilitation – previously suspended sentences

The Supreme Court has sentenced Hayley John to 14 months imprisonment for an offence of assault occasioning actual bodily harm. The offender helped her three co-offenders enter the victim’s house where they assaulted the victim. The offender did not take part in the assault. The court, in considering the offender’s genuine remorse, progress during rehabilitation programs and her limited role in the offence, ordered that the sentence be immediately suspended upon the offender entering into a Good Behaviour Order. The offender was also resentenced for previously suspended sentences.

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9 November 2023

DPP v Reed [2023] ACTSC 310 (SCC 145 of 2023; SCC 146 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – arson – offender started fire at doors of Old Parliament Housing during a public protest – fire caused significant damage to the building – consideration of political protest context – offending went beyond the types of protest which may be dealt with leniently due to significance of public protest as a part of democracy – offending in the mid-range of objective seriousness – sentence of imprisonment and good behaviour order imposed

CRIMINAL LAW – STATUTORY INTERPRETATION – Whether a protective service officer is a “territory public official” for the purposes of s 361 of the Criminal Code 2002 (ACT) – consideration of specific categories of person identified as a “territory public official” – parties invited to provide further submissions on whether a protective service officer falls within the chapeau to the definition of a “territory public official”

The Supreme Court has sentenced an offender to 23 months’ imprisonment, to be suspended after eight months on the requirement that the offender enter into a good behaviour order for two years. The offending occurred in the context of political protests at Old Parliament House. The offender started a fire at the doors of Old Parliament House, which caused significant damage to the building. The court determined that the offending went beyond the types of protest which may be dealt with leniently due to the significance of public protests as an inherent part of democracy.

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8 November 2023

R v Malone (No 3) [2022] ACTSC 74

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Subpoena – obligation on Victims of Crime Commissioner to produce documents – other avenues of objection to production

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8 November 2023

R v Malone (No 2) [2022] ACTSC 59

CRIMINAL LAW – INTERMEDIARY – where the Crown wishes that an intermediary be appointed for certain witnesses – application under s 4AJ of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).

The publication restriction has been lifted.

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8 November 2023

R v Malone [2022] ACTSC 23

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – application to adduce tendency evidence  – probative value – prejudice to the defendant

The publication restriction has been lifted

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8 November 2023

In the Estate of Coonan [2023] ACTSC 320

SUCCESSION – WILLS, PROBATE & ADMINISTRATION – Wills Act 1968 (ACT) – Administration and Probate Act 1929 (ACT) – testamentary capacity – where testator diagnosed with schizophrenia – where no person propounding the will and no other contradictor available – where the will is non-sensical on its face – letters of administration granted to sibling of deceased

The Supreme Court has granted letters of administration to a sibling of a woman who was 68 when she died, leaving no spouse, partner or issue.  The deceased had executed a will, but it was informal, and the deceased had a long-standing diagnosis of chronic paranoid schizophrenia. Testamentary capacity was in issue.  The text of the will contained fanciful ideas about accessing moneys that did not exist and overlooked immediate family members.  Having regard to the text of the will and the surrounding medical evidence, the Supreme Court found that the deceased was not of sound mind, memory and understanding at the time she executed the will. The document was therefore found to have no effect. The residue of the estate was ordered to be distributed in equal shares to the deceased’s siblings as next of kin.

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8 November 2023

Nova Builders Pty Ltd v Beno Excavations Pty Ltd (No 3) [2023] ACTSC 319

CIVIL LAW – BUILDING AND CONSTRUCTION – Existence of joint venture – no evidence to establish formation of joint venture or its terms – no collateral facts consistent with existence of joint venture – where one of the parties to the alleged joint venture unaware of its existence – where person asserting the existence lacked authority to enter company into joint venture agreement – joint venture did not exist

CIVIL LAW – RESTITUTION – Counterclaim for restitution on the ground of mistaken payment – plaintiff paid second defendant $550,000 due to mistaken belief that first defendant authorised the payment – mistake caused the payment – second defendant’s deception procured the payment – establishment of liability to pay the $550,000 to a third party unnecessary – counterclaim allowed

The Supreme Court has allowed a counterclaim for restitution on the ground of mistaken payment. Whether the payment was a mistake depended on the existence of a joint venture. The court found that there was no evidence to establish the formation of a joint venture or its terms, nor any collateral facts consistent with the existence of a joint venture. In circumstances were one of the parties to the alleged joint venture was unaware of its existence, the court determined that there was no joint venture.

On this basis, court found that there was a mistaken payment. The plaintiff paid the second defendant $550,000 due to a mistaken belief that the first defendant had authorised the payment. The second defendant’s deception procured the payment.

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7 November 2023

DPP v Moala (No 3) [2023] ACTSC 306 (SCC 311 of 2022)

CRIMINAL LAW – Judgment and punishment – Sentence – choking – where offender found guilty at trial – where offender gave contrary evidence at sentence – double jeopardy – violent attack on victim – consideration of family hardship – absence of any remorse – recognition of harm – whether risk of deportation is mitigating

The Supreme Court sentenced an offender to 24 months imprisonment with a non-parole period of 12 months for choking.

The offender was tried by jury for violent sexual and choking offences against a woman who he met at Fiction Nightclub hours beforehand. The trial proceeded on the defence that the offender did not have sex with the victim. He was acquitted of all offences save a single count of choking. At the sentence hearing, however, the offender admitted to having sex with victim.

The Court could not take that evidence into account due to the principle of double jeopardy which prevents an offender from being tried again or punished for those offences, despite the false basis of the defence at trial. The Court could however rely on the trial evidence that demonstrated the seriousness of the offending, which left the victim with physical and psychological injuries. The offender showed negligible remorse, but demonstrated some family hardship if he was imprisoned. The Court held only a sentence of imprisonment was appropriate.

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2 November 2023

DPP v Higgins [2023] ACTSC 314

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge alone verdict – assault occasioning actual bodily harm – joint commission – CCTV footage – s 45A of the Criminal Code 2002 (ACT) – whether the offence was committed in the course of carrying out the agreement – recklessness – whether the person is aware of a substantial risk that the circumstance will happen

The Supreme Court, by judge alone, has found the accused guilty in relation to a charge of assault occasioning actual bodily harm via joint commission. The case involved two men, one unknown and the other the accused, forcing their way into a house armed with weapons. After leaving the house, the unknown man assaulted a neighbour with a sword. The issue was whether the accused could be found guilty of the assault. The Court found the accused guilty having been satisfied that the assault was committed in the course of carrying out the agreement to commit the offence and that the accused was reckless about the commission of that assault.

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2 November 2023

DPP v Sibley [2023] ACTSC 267

EVIDENCE – Compliance with s 23V of the Crimes Act 1914 (Cth) – where offender had been questioned and made admission to investigating official – obligation for investigating official to “make … available” a copy of the recording and transcript to the person or their counsel – meaning of “make … available” – failure to comply with legislation – evidence admitted and jury advised of non compliance

The Supreme Court has admitted evidence of an audio recording despite the AFP’s failure to “make [the recording] available” in accordance with s 23V of the Crimes Act 1914 (Cth). Evidence was given in court of the practice of the AFP in complying with s 23V. It was held that what was done in the case was insufficient to satisfy the requirement to “make … available” the recording. However, as s 23V does not render the evidence inadmissible upon a failure to comply with the section and given the circumstances of the case and the nature of the evidence, the evidence was admitted.

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2 November 2023

Evans v Dziubinski [2023] ACTSC 312

APPEAL – PRACTICE AND PROCEDURE – Appeal from an interlocutory decision of the Magistrates Court – Application by the respondent for the proceedings to be struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT) – jurisdiction of the Supreme Court to hear an appeal from an interlocutory decision – prospects of judicial review of the decision – application granted – Notice of Appeal struck out as incompetent.

The Supreme Court has struck out an appeal from an interlocutory decision of a Magistrate in a summary prosecution. The Court held there is no statutory right of appeal against an interlocutory decision made in relation to a summary prosecution. The Court considered whether to invite the appellant (who was self-represented) to seek judicial review, but determined that any claim for judicial review would be futile.

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2 November 2023

R v Fry (No 2) [2022] ACTSC 389 (SCC 249 of 2020; SCC 250 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – forcible confinement – assault occasioning actual bodily harm – dishonestly driving a motor vehicle without consent – possessing a drug of dependence – cancellation of Drug and Alcohol Treatment Order – re-sentencing – taking into account time in custody – taking into account time in residential rehabilitation – sentence of imprisonment

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1 November 2023

DPP v Dritsas [2023] ACTSC 308 (SCC 149 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm by way of joint commission – guilty plea – overwhelming prosecution case – serious injuries – committed while on SSO – GBO cancelled and SSO imposed – need for parity – criminal history with some violent offending – good prospects of rehabilitation

The Supreme Court has sentenced an offender for recklessly inflicting grievous bodily harm to 3 years 5 months imprisonment with a total sentence of 3 years 10 months and an NPP of 2 years 2 months. The Court also imposed suspended sentences of 4 and 10 months for 2 breached good behaviour orders. The offending was committed with a co-offender in public, was objectively serious and resulted in extensive life-threatening injuries to the victim. The offender had good prospects for rehabilitation.

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31 October 2023

McCaskie v Graydon [2023] ACTSC 300

APPEAL – CRIMINAL LAW – Appeal against sentence for charge of assault occasioning actual bodily harm – appellant claimed that sentencing magistrate erred in finding that a child was present during the offending and that this was an aggravating feature – respondent conceded error – court not satisfied that the same sentence should be imposed – appeal allowed

CRIMINAL LAW – SENTENCING – Whether child present during the offending – consideration of s 34B Crimes (Sentencing) Act 2005 (ACT) – meaning of “present” – presence may extend beyond a child’s awareness to mere physical presence – s 34B does not prevent consideration of a child’s physical presence as part of the broader sentencing factors – unnecessary to determine issue due to concession of error

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – assault occasioning actual bodily harm – family violence offending – offence in the low end of mid range of objective seriousness – offending arose out of drunken and entitled interference with victim’s property – good behaviour order and fine imposed

The Supreme Court has allowed an appeal from a sentence for the charge of assault occasioning actual bodily harm. The appellant claimed that the sentencing magistrate erred in finding that a child was “present” during the offending, and that this was an aggravating feature. The respondent conceded the error. The court allowed the appeal on that basis.

The court resentenced the offender for the charge of assault occasioning actual bodily harm. The offending occurred in a family violence context. The appellant was resentenced to a good behaviour order for two years and a fine of $2500.

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31 October 2023

DPP v Campbell [2023] ACTSC 307

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –Judgment – judge-alone verdict – guilty – attempted aggravated burglary – assault occasioning actual bodily harm –damage property – possess weapon with intent – identity of the accused in issue – direct evidence of recognition of accused by complainant – reliability of complainant’s identification – supported by circumstantial evidence – CCTV footage – DNA evidence – Murray direction – complaint evidence

The Supreme Court, by judge-alone trial, has found the accused guilty of attempted aggravated burglary, assault occasioning actual bodily harm, damaging property and possessing an offensive weapon with intent to use it. The primary issue at trial was the identification of the accused. The Court found that identity had been established beyond reasonable doubt, by the recognition of the accused by the victim, DNA evidence and other circumstantial evidence such as phone records and the vehicle observed in CCTV footage which linked the accused to the offending.

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31 October 2023

DPP v Gale [2023] ACTSC 297 (SCC 63 of 2023; SCC 257 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – threatening a witness – unlawful choking – aggravated stalking – aggravated assault occasioning actual bodily harm – intentional and unlawful choking – offences occurring in family violence context – Bugmy factors – early pleas of guilty – offender serving existing sentence – sentence of imprisonment imposed

The Supreme Court has sentenced an offender to a period of full-time imprisonment for two years for various offences committed against his ex-partner, including threatening a witness, stalking, choking and aggravated assault. Four of the five offences occurred while the offender was on bail. The offences ranged from being below the mid-range to above the mid-range of objective seriousness.

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30 October 2023

Eaglen v Hayward [2023] ACTSC 304

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal against sentence – whether s 374 of the Crimes Act 1900 (ACT) alters the maximum penalty of an offence or is confined to imposing a jurisdictional limit – whether an Intensive Corrections Order should have been considered.

The Supreme Court has dismissed an appeal against a sentence imposed in the Magistrates Court for the offence of aggravated assault occasioning actual bodily harm.  On appeal, the offender argued two specific errors.  The first was that the sentencing magistrate erred in having regard to the wrong maximum penalty for the offence, namely seven years instead of two years, given that a prosecution election had been filed under s 374 of the Crimes Act 1900 (ACT).  The second was that the magistrate erred in failing to consider whether an Intensive Corrections Order should be imposed.

The Supreme Court held (1) that s 374 imposes a jurisdictional cap on a sentencing court but does not alter the legislative maximum penalty for an offence, and therefore no error was established; and (2) that there was no error in the sentencing magistrate failing to refer to the option of imposing an ICO, in circumstances where the issue was not properly raised and at the time of sentencing the offender was not eligible for an ICO.

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30 October 2023

Cousins v Construction Occupations Registrar [2023] ACTSC 305

ADMINISTRATIVE LAW – JUDICIAL REVIEW – Application for review of decision of Construction Occupations Registrar – where proceedings pending in ACAT – whether Supreme Court is an inappropriate forum for determination of issues raised – where full merits review available in ACAT – matter involves contested questions of facts and law – where legal questions are hypothetical without settled facts – Supreme Court proceedings dismissed

The Supreme Court has dismissed a proceeding seeking judicial review of a decision of the Construction Occupations Registrar. The plaintiff was a builder who was subject to a rectification order. The application for judicial review asserted legal error.  The Registrar applied to dismiss or stay the proceeding because the plaintiff had also instituted merits review proceedings in the ACAT.

The Supreme Court held that as the legislation provided an adequate remedy, in circumstances where the matter involves contested questions of fact and law, it would be inappropriate to grant judicial review relief. The factual dispute should first be determined in ACAT, being the regular means of review provided by statute.

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30 October 2023

Wilson v Australian Capital Territory [2023] ACTSC 287

PRACTICE AND PROCEDURE – PLEADINGS – Application to strike out parts of defence – personal injury – claim against government arising from trip and fall on footpath – where defendant made admission of breach of duty of care – plaintiff claims it is not open for defendant to plead contributory negligence – consideration of s 61 Civil Law (Wrongs) Act 2002 (ACT) – the Act does not exclude defendant’s common law right to raise defence of contributory negligence – admission does not preclude defendant from relying on this defence – application dismissed

PRACTICE AND PROCEDURE – PLEADINGS – Application to strike out parts of defence – personal injury – claim against government arising from trip and fall on footpath – where defendant made admission of breach of duty of care – plaintiff claims that defence is inconsistent with admission – defendant’s admission concerned narrow breach of duty – defence denied aspects of plaintiff’s broader claim – pleadings not inconsistent with defendant’s admission of breach – application dismissed

The Supreme Court has dismissed an application strike out parts of a defence. The application arose in the context of a personal injury claim against the government arising from a trip and fall on a footpath. The defendant made an admission of breach of duty of care. The plaintiff claimed that it was not open for the defendant to plead contributory negligence due to the admission. The Court found that s 61 of the Civil Law (Wrongs) Act 2002 (ACT) does not exclude the defendant’s common law right to raise the defence of contributory negligence.

The plaintiff further claimed that parts of the defence were inconsistent with the defendant’s admission of breach of duty of care. The Court held that the admission was confined to a narrow breach of duty, and that the defence denied aspects of the plaintiff’s broader claim. Therefore, the pleadings were not inconsistent with the defendant’s admission of breach of duty of care.

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27 October 2023

Harlovich v Sebbens [2023] ACTSCFC 3

Judgment summary

FULL COURT – CRIMINAL LAW – Whether residual discretion applies to prosecution appeals from sentences imposed in the Magistrates Court – whether s 219F(5) of the Magistrates Court Act 1930 (ACT) limits the residual discretion – application of the principle of legality – history of prosecution appeals against sentences imposed in the Magistrates Court – no clear indication of legislative intent to limit residual discretion.

The Full Court has unanimously found that the Supreme Court has a “residual discretion” to decline to intervene in prosecution appeals from sentences imposed in the Magistrates Court, where intervening would cause injustice or unfairness to an offender. The Full Court considered the history of the residual discretion and the legislation which provides the prosecution with the right to appeal a sentence from the Magistrate’s Court in the ACT and in other Australian jurisdictions. The Full Court concluded that the legislature did not intend to limit the Court’s residual discretion.

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27 October 2023

Adham v Ashcroft [2023] ACTSC 277

APPEAL – APPEAL FROM REGISTRAR – Decision of Senior Deputy Registrar to list matter for hearing – defendant in these proceedings is also the defendant in other proceedings listed for hearing concurrently – defendant wishes to be present for entirety of both proceedings – plaintiff wishes to have case heard as soon as possible – moving the listing date may result in matter being part heard or significantly delayed – potential for settlement in advance of hearing – current listing appropriately balances interests of plaintiff and defendant – appeal dismissed

The Supreme Court has dismissed an appeal from a decision of the Senior Deputy Registrar to list a medical negligence matter for hearing. The appeal was brought because the defendant in these proceedings is also the defendant in other proceedings that are listed for hearing concurrently. The court determined that the current listing appropriately balances the plaintiff’s interests in having the case heard as soon as possible with the defendant’s interests in being present for the entirety of both proceedings, having regard to the potential for settlement of the proceedings and the potential for significant delay should the listing date be pushed back.

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26 October 2023

Incandela v The Queen [2023] ACTCA 41

Judgment summary

CRIMINAL LAW – APPEAL – unreasonable verdict – credibility of witnesses – lack of corroborating evidence – miscarriage of justice – whether photographs of bruising caused unfair prejudice – evidence not obtained by police – whether directions regarding definition of consent were misleading – whether alternative case should have been left to jury – whether there was a failure to capture key points in summing up – appeal dismissed.

The Court of Appeal has dismissed an appeal against a conviction for one count of sexual assault. The Court considered all the evidence in the trial and found that the complainant’s account was compelling and there were no inconsistencies in the evidence which shed doubt on her credibility. The Court concluded that the jury’s guilty verdict was not unreasonable. The Court also found that no miscarriage of justice had arisen and dismissed the appellant’s allegations of alleged errors in the trial judge’s directions and summing up.

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18 October 2023

DPP v Wickes [2023] ACTSC 296 (SCC 26 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt to pervert the course of justice – where offender provided false instructions to duty solicitor on bail application – compelling subjective circumstances – drug use as motivation for offending – real prospects for rehabilitation – whether imprisonment on remand is “lawful custody” for the purpose of s 64 of the Crimes (Sentencing) Act 2005 (ACT) – s 64 applies – no nonparole period imposed – direction under s 72(3) of the Crimes (Sentencing) Act 2005 (ACT) – sentenced to term of imprisonment

The ACT Supreme Court has sentenced an offender to 6 months and 12 days’ imprisonment for the offence of attempt to pervert the course of justice. The offender gave false instructions to a duty solicitor in the course of an application for bail. The offence was committed while the offender was in “lawful custody” and therefore, no nonparole period could be set in respect of this offence.

The offender gave forthright and compelling evidence at the sentence hearing, demonstrating remorse and insight into his offending. The offender also gave evidence of childhood trauma which was a catalyst for drug and alcohol use, for which he is now seeking and accessing support. The Court found that the offender has real prospects for rehabilitation and recommended engagement with drug rehabilitation and trauma informed counselling.

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18 October 2023

DPP v DB (A Pseudonym) [2023] ACTSC 294 (SCC 16 of 2023; SCC 17 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle without consent – theft – burglary – aggravated burglary – aggravated robbery – arson – substantial criminal history – significant issues with illicit drug use – disrupted childhood – compelling subjective circumstances – where ineligible for DATO

The Supreme Court has sentenced an offender to 4 years and 8 months’ imprisonment (non-parole period 2 years and 8 months) for various driving, property and arson offences. The offender was on conditional liberty at the time of the offences. The offender had compelling subjective circumstances and has shown a genuine desire to address his use of illicit substances. This was considered greatly in sentencing, alongside his youth and criminal history.

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18 October 2023

DPP v CR (a pseudonym) [2023] ACTSC 293 (SCC 18 of 2023; SCC 35 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle without consent – theft – burglary – aggravated burglary – aggravated robbery – arson – substantial criminal history

The Supreme Court has sentenced an offender to 6 years, 1 month and 6 days (non-parole period of 3 years, 8 months and 16 days) for driving, property and arson offences. The offender was directed to serve the remainder of an existing Intensive Correction Order, breached during the offending conduct, in full-time detention. 2 existing Good Behaviour Orders were also cancelled, resulting in the imposition of 15 and 4 months’ imprisonment, served concurrently. The offender’s youth, illicit substance use and extensive criminal history were taken into consideration.

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18 October 2023

DPP v Deighan (No 2) [2023] ACTSC 295 (SCC 225 of 2022, SCC 226 of 2022, SCC 301 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty after trial by jury – choke strangle or suffocate – sexual intercourse without consent – acts of indecency – sexual assault with intent to have sexual intercourse and commit act of indecency – offences committed in a family violence context – offences committed whilst on conditional liberty – totality – mental illness at time of sentence – youthful offender – rehabilitation relevant to fixing non-parole period – transfer offences of common assault related to indictable offences

The Supreme Court has sentenced John Deighan to 13 years five months imprisonment for offences including sexual intercourse without consent, inflicting actual bodily harm with intent to have sexual intercourse, acts of indecency and choke, suffocate or strangle. The offender was found guilty by jury and was subsequently found guilty of six additional transfer charges relating to the same victim. The offending occurred whilst the offender and victim were in a domestic relationship and the offences were considered to be in the mid-range of objective seriousness. The Court set a non-parole period of 6 years 4 months noting the offender’s comparative youth, absence of prior criminal conduct, mental illness and prospects of rehabilitation

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18 October 2023

Ross v Gordon (No 2) [2023] ACTCA 40

Judgment summary

APPEAL – CIVIL LAW – jurisdiction of Supreme Court following remittal of matter by Court of Appeal pursuant to s 37O(1)(c) of the Supreme Court Act 1933 (ACT) – remittal limited by reasons for judgment.

APPEAL – PRACTICE AND PROCEDURE – grant of declaratory relief – whether declaration should have been granted to give effect to reasons for judgment – where declaration was not sought – where respondent agreed to abide by reasons – no practical utility of issuing a declaration – declaratory relief not granted.

APPEAL – COSTS – where costs of appeal were ordered to form part of the costs of the proceedings in the Supreme Court – whether costs to follow the event – costs intended to be in the cause – where each party had mixed success – parties to pay their own costs.

The appeal concerned the scope of previously remitted proceedings, sought declaratory relief and costs. The CA unanimously held that the trial judge did not err in finding that jurisdiction on the remittal was limited to consideration of an issue which the plaintiff ultimately did not press. However, the trial judge had erred in the exercise of the costs discretion.  The order awarding costs to the defendant was set aside and each party was ordered to pay their own costs.

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17 October 2023

Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 7) [2023] ACTSC 292

CIVIL LAW – PRACTICE AND PROCEDURE – Application to have order for “restitution” set aside – where order consequential upon successful application for judicial review of decision under the Building and Construction Industry (Security of Payment) Act – whether order final or interlocutory – whether commencement of civil proceedings claiming payment of the sum the subject of the quashed decision amounts to a relevant change of circumstance – whether application in substance an appeal in disguise

CIVIL LAW – RESTITUTION – where defendant received funds under a garnishee order following the registration of an adjudication certificate as a judgment in the NSW District Court – legal effect of registration of the certificate – where underlying decision subsequently set aside on the ground of jurisdictional error – consequential order for restitution of funds received under garnishee order – effect of District Court judgment – whether payment under garnishee order capable of being characterised as unjust enrichment – consideration of inherent power to order repayment of monies paid under a judgment reversed on appeal – consideration of s 38 of the Building and Construction Industry (Security of Payment) Act

The Court has set aside an order for restitution made previously by the Supreme Court.

The first defendant brought the application to have an order made earlier in these proceedings set aside. The orders in question were that the first defendant pay the plaintiff, by way of restitution, monies it had obtained through a garnishee order.

The Court considered that relevant changes in circumstances, namely that separate proceedings had been commenced since the orders were made, meant the decision to order restitution could be reopened. The Court held that there was no legislative basis for ordering restitution and the first defendant was entitled to receive and retain the payment.

Accordingly, the Court set aside the restitution orders and granted an opportunity for parties to be heard on costs.

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17 October 2023

DPP v Jones (No 2) [2023] ACTSC 99 (SCC 233 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency without consent – where offender knew the victim was not consenting – whether age and power disparity aggravate the objective seriousness of the offences – offender with no prior criminal history – where offender maintains his innocence notwithstanding the jury verdicts.

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17 October 2023

R v Jones [2022] ACTSC 177

CRIMINAL LAW — EVIDENCE — Tendency evidence — Application to vacate trial date — Potential further complaints against accused which Crown may seek to rely on as tendency evidence — Interests of justice — Where preferable for complainant to give evidence only once — Where delay presents cost to community

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16 October 2023

DPP v Padreny [2023] ACTSC 286 (SCC 41 of 2023; SCC 42 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – family violence offences – threat to kill – unlawful confinement – choking – assault occasioning actual bodily harm – minor property damage – making a demand with a threat – common assault – damaging property – Drug and Alcohol Treatment Order application – application denied – imprisonment.

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16 October 2023

Alan Hill and James Colquhoun v Council of the Law Society of the Australian Capital Territory [2023] ACTSC 282

PROFRESSIONS AND TRADES – LEGAL PRACTITIONERS – Complaints and discipline – disciplinary proceedings – referred from the ACT Civil and Administrative Tribunal – where first complaint against legal practitioner summarily dismissed – whether second complaint arose out of the same or substantially the same facts as first complaint – whether summary dismissal binding and conclusive – whether Legal Profession Act 2006 (ACT) prohibited Law Society of the ACT from investigating second complaint

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13 October 2023

In the Estate of Cervo [2023] ACTSC 283

SUCCESSION – EXECUTORS AND ADMINISTRATORS – Application for special administration ad colligenda bona defuncti or appointment of administrator pendente lite– suitability of applicant to be appointed administrator pendente lite

The Supreme Court has made orders to appoint Ms Tamara Goodwin as an administrator pendente lite of the estate of Mr Renato Cervo and Mrs Margaret Cervo. An application was made by the executor of Mrs Cervo’s will, Mr Angelo Didio, to be appointed administrator pendente lite after a caveat was filed by the solicitor for Mr Cervo’s estate. Mr Didio was found unsuitable to be appointed administrator of the estate due to lack of financial and property management experience and qualifications.

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12 October 2023

CDLC Pty Ltd v Capital Estate Developments Pty Ltd [2023] ACTSC 284

CONTRACT – LEASES – Consent to assignment – where consent refused – application of s 100 of the Leases (Commercial and Retail) Act 2001 (ACT) – whether reasonable in all the circumstances – to be determined subjectively or objectively – whether Court may take into account events that occurred or facts that became known after consent was sought and refused – answer depends on ground relied upon for refusal

EVIDENCE – RELEVANCE – Ruling sought on scope of admissible documents – whether Court may take into account events that occurred or facts that became known after consent was sought and refused – relevance depends on the ground relied upon in s 100 of the Leases Act.

PRACTICE AND PROCEDURE – SEPARATE QUESTION – rule 1521 of the Court Procedures Rules (2006) – whether separate question should be ordered – separate question ordered

The Supreme Court has determined a separate question arising in the context of a commercial leasing dispute.  The plaintiffs are lessees of premises in Denman Prospect.  They brought proceedings against the lessor following the refusal of a request for the lessor’s consent to assign their respective leases.

The separate question concerned the applicable test for determining the reasonableness of a lessor’s refusal to consent to assignment.  The issue between the parties was in the nature of an evidentiary ruling on relevance.  Arguments were made about whether the information to be put before the Court included only that known to the lessor at the time of the refusal, or information of a broader scope.

The Court held that the answer depended on the ground of refusal under s 100 of the Leases (Commercial and Retail) Act 2001 (Leases Act).  Where the ground was based on the lessor’s belief about a certain state of affairs, the relevant evidence was limited to that considered by or known to the lessor at the time of refusal.  However, where the ground was based on the existence or otherwise of an objective fact, the relevant material may be broader in scope, and include material unknown to the lessor.

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11 October 2023

Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 6) [2023] ACTSC 245

CIVIL LAW – PRACTICE AND PROCEDURE – Application to stay the enforcement of an order for restitution pending the determination of an application to have that order set aside – whether the order for restitution was final or interlocutory

The Supreme Court has granted an application to stay enforcement orders for the repayment of restitution. The question was whether the orders for restitution were made on an interlocutory or final basis. The Court found that despite the preliminary view that the enforcement orders were final because they restored the plaintiff to the position it was before the enforcement of the determination, they were in fact interlocutory orders. The Court held that despite the adjudication determination between the parties previously being quashed by the Court, the final determination of the dispute between the parties on the merits in relation to unpaid invoices remains.

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11 October 2023

Parmar v Campbell [2023] ACTSC 281

CIVIL LAW – PRACTICE AND PROCEDURE – application to vacate hearing – personal injury claim arising out of motor vehicle accident – where plaintiff has suffered serious injuries in subsequent motor vehicle accident – whether further time is needed to distinguish between ongoing effects of first and second accidents – application granted

The Supreme Court has granted an application to vacate the hearing of a personal injury claim arising out of a car accident. The plaintiff suffered severe injuries in a later car accident. The Court considered the approach to be taken when assessing overlapping damages arising from multiple incidents. The Court ultimately found that a fair trial would not be possible until the injuries arising from the later accident had stabilised, and the Court could be properly appraised of the plaintiff’s overall prognosis.

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11 October 2023

Day v R [2023] ACTCA 39

Judgment summary

APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge failed to consider the subjective circumstances of the offender – whether sentence manifestly excessive – whether sentencing judge failed to consider principle of totality – appeal dismissed

The Court of Appeal has dismissed an appeal against sentence.

The appellant was sentenced to a total of 4 years and 6 months imprisonment for 2 counts of choking, 1 count of threatening to kill, and 1 count of contravening a family violence order. The appellant appealed on grounds that the sentencing judge had failed to take into account his subjective circumstances and that the individual sentences, the aggregate sentence and the non-parole period were manifestly excessive.

The Court found that none of the grounds were established: the sentencing judge had not erred in considering relevant matters and the sentences imposed were inside the properly available range.

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5 October 2023

Powell v Australian Sports Commission (No 2) [2023] ACTSC 278

CIVIL PRACTICE AND PROCEDURES – Disclosure of protected confidences – Application for leave to inspect protected confidences for the purposes of the proceedings – application for leave to issue subpoenas to produce documents containing protected confidences already granted – protected confider neither consents nor objects to inspection – subpoenaed entity objects to production of documents – outcome of preliminary examination of protected confidences

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4 October 2023

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3) [2023] ACTCA 37

APPEAL – APPEAL FROM SUPREME COURT – Appeal against order made refusing appellant leave to represent company under r 30(4) of the Court Procedures Rules 2006 (ACT) – application by respondent that appeal be declared incompetent and notice of appeal struck out –leave to appeal required – whether interlocutory decision – whether the appeal is incompetent – appeal declared incompetent and notice of appeal struck out– consideration of whether leave to appeal would be granted had it been applied for – would refuse leave to appeal – appellant to pay respondent’s costs of the application

The Court of Appeal has declared an appeal incompetent. This appeal concerned a decision which prevented the appellant from appearing for plaintiff, his medical practice, in the substantive proceedings. It was declared incompetent as leave to appeal is required when appealing an interlocutory decision of a single judge in the Court of Appeal. The original decision was interlocutory; it did not finally determine the rights of the parties and related to one aspect of the proceedings. The Court considered whether leave to appeal would be granted if applied for and found it would refuse leave. Appellant to pay respondent’s costs.

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28 September 2023

DPP v Small [2022] ACTSC 325

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – charged acts – s 97A of the Evidence Act 2011 (ACT) – presumption that evidence has significant probative value – application not opposed by counsel for the accused – application allowed

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28 September 2023

DPP v Small (No 2) [2023] ACTSC 274 (SCC 181 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – persistent sexual abuse of a young person – recognition of harm to the victims – application of Verdins principles – need for offender to participate in Sex Offender Treatment Program – where rehabilitation would best achieve community protection – Intensive Corrections Order not appropriate – term of imprisonment imposed

The Supreme Court has sentenced an offender to two years and 18 days’ imprisonment for the persistent sexual abuse of a young person. The offence carries a maximum sentence of 7 years’ imprisonment.
The victim was a friend of the offender’s brother. The offender engaged in sexual acts with the victim on a number of occasions over the period of roughly two years. At the time the offending occurred, the victim was between 11 and 12 years of age.
The Court held that the abuse was a very serious example of such an offence. This was balanced against a number of factors, including the offender’s mental health, diagnosis of autism and plea of guilty.
The sentence imposed was suspended after six months to allow the offender to complete a sex offenders treatment program while remaining on a good behaviour order.

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25 September  2023

R v Elliott (No 2) [2022] ACTSC 390 (SCC 215 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravening a Family Violence Order – subjective circumstances – drug use – sentence of imprisonment – Intensive Correction Order – rehabilitation conditions

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25 September 2023

DPP v Rue [2023] ACTSC 270 (SCC 9 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual offending – one count of committing an act of indecency – one count of sexual intercourse without consent – rolled up counts – pleas of guilty – overwhelmingly strong prosecution case for Count 1 – breach of trust – vulnerable victim – consideration of impact of drug use on moral culpability – consideration of offender’s state of mind – very good prospects of rehabilitation providing drug use addressed – consideration of impact on third-parties – limited criminal history – sentence of imprisonment

The Supreme Court has sentenced an offender to 19 months imprisonment for an act of indecency without consent a 35 months imprisonment for sexual intercourse without consent, with a total head sentence of 3 years, 5 months with a non-parole period starting on 22 September and ending on 22 July 2025. The victim was unconscious and therefore vulnerable during the offending. The offender entered pleas of guilty, had a limited criminal history and very good prospects of rehabilitation. He had demonstrated remorse. The offender was found unsuitable for an Intensive Correction Order due to significant unaddressed issues with drug use.

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25 September 2023

DPP v Murphy [2023] ACTSC 4

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – charged and uncharged conduct – cross-admissibility of tendency evidence – significant probative value – whether probative value of evidence outweighs danger of unfair prejudice – severing of indictment

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25 September 2023

Wang v Bian [2023] ACTSC 246

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Claims for debts arising from former marital pool of assets – where property the subject of claims was already considered in separate family law proceedings – claims should have been brought in the family law proceedings – claims directly relevant to issues considered in the family law proceedings – where family law proceedings were determined based on an agreement that financial contributions to the marriage were equal – reagitation of matters the subject of the agreement amounts to an abuse of the court’s process – plaintiff estopped from pursuing claims – claims dismissed

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Counterclaim for worker’s compensation payments allegedly stolen from defendant – counterclaim directly relevant to defendant’s “financial circumstances” considered at length in the family law proceedings – possibility that defendant will have to repay the worker’s compensation to issuing authority – where cause of action has not yet accrued as defendant has not yet suffered damage – defendant unable to pursue counterclaim as it is an abuse of the court’s process – counterclaim dismissed

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for leave to amend Originating Claim and Statement of Claim – amended Statements of Claim included in bundles of documents filed with the court – defendant not on notice of a formally amended claim – claims not properly pleaded – claims would partially reopen matters determined in the family law proceedings – application refused

The Supreme Court has dismissed claims for debts arising from a former marital pool of assets. The property the subject of the claims was already considered in separate proceedings before the Federal Circuit and Family Court. The court found that the claims were directly relevant to issues considered in the family law proceedings, and reagitation of matters the subject of those proceedings amounted to an abuse of process. The plaintiff was precluded from pursuing the claims. The defendant’s counterclaim was dismissed for similar reasons.

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22 September 2023

DPP v Crawford (a pseudonym) [2023] ACTSC 266 (SCC 190 of 2023; SCC 191 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive a motor vehicle without consent – aggravated dangerous driving – trespass – breach of Intensive Correction Order

The Supreme Court has sentenced an offender to 18 months imprisonment for driving a motor vehicle without consent and aggravated dangerous driving. An additional 12 months imprisonment was imposed on the offender after he breached an Intensive Correction Order. A total period of 2 years, 5 months and 23 days was ordered to be served as full-time imprisonment. The offender was also fined $700 for trespass.

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22 September 2023

DPP v Guarini [2023] ACTSC 263

CRIMINAL LAW – EVIDENCE – Admissibility – recording of accused and co-accused in the ACT Watchhouse – whether admissions were made by the accused – whether there was contravention of s 4 of the Listening Devices Act 1992 (ACT) – whether the Surveillance Devices Act 2004 (Cth) applies – evidence admissible

The Supreme Court has determined evidence obtained by CCTV of the accused and Mr Joliffe-Cole in the ACT Watchhouse as admissible evidence in the trial of the accused. The accused and Mr Joliffe-Cole were placed in a cell together over a period of five hours and their conversations were recorded. The prosecution submitted that some of conversations amounted to an admission. The accused submitted that the conversations were inadmissible as it breached s 4 of the Listening Devices Act 1993 (ACT). The Court held, in construing the legislation, the accused and Mr Joliffe-Cole were aware that the words they spoke would be heard by law enforcement officers and therefore s 38 of the Surveillance Devices Act 2004 (Cth) applied.

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22 September 2023

DPP v Guarini (No 2) [2023] ACTSC 269

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge alone verdict – aggravated burglary – obtain property by deception – identification evidence – CCTV footage – circumstantial evidence – reliability of complainant’s identification of the accused

The Supreme Court, by judge alone trial, has found the accused not guilty in relation to a charge of aggravated robbery and guilty in relation to two counts of obtaining property by deception.  The case, which concerned whether the accused had been correctly identified, involved eye-witness evidence, DNA evidence, and CCTV footage.

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22 September 2023

Findex Group Pty Ltd v McKay [2023] ACTCA 36

PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal against interlocutory decision of primary judge on an issue of practice and procedure involving discretion – where appeal seeks to raise denial of procedural fairness and factual errors – reluctance of courts to grant leave to appeal interlocutory orders – where denial of procedural fairness may have effect of occasioning substantial injustice – leave granted

PRACTICE AND PROCEDURE – APPEAL – Appeal against orders refusing leave to reopen decision following refusal of an application to amend Statement of Claim – whether primary judge proceeded upon a misapprehension of the facts – whether there was a denial of procedural fairness – appeal allowed – matter remitted

The Court of Appeal has remitted a matter to the Supreme Court for rehearing following a finding that procedural fairness was not afforded to the plaintiffs. The appeal arose from a decision of the Supreme Court refusing to the plaintiffs leave to reopen a decision of the court where it was established that the decision was affected by errors of fact.

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20 September 2023

DPP v McConnell-Imbriotis [2023] ACTSC 256 (SCC 168 of 2022; SCC 169 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – purpose of sentencing – protection of community – rehabilitation – Griffiths remand – deferred sentence

The Supreme Court has deferred an offender’s sentence by way of Griffiths remand until after the offender completes a residential rehabilitation program.

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20 September 2023

DPP v Barrett [2023] ACTSC 260 (SCC 42 of 2022; SCC 43 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing death and grievous bodily harm – two victims – offender was a professional truck driver – whether momentary inattention or total abandonment of responsibility – more than mere momentary inattention – not total abandonment of responsibility

The ACT Supreme Court has sentenced a professional truck driver to a total of 4 years’ imprisonment for culpable driving causing death and grievous bodily harm. The offender had pleaded guilty to these offences. The offender drove a truck through a red light at an intersection on Barton Highway, causing the death of one person and seriously injuring another. The Court emphasised the significant time period of 8 seconds that the offender had not been paying attention to the road. The offender’s term of imprisonment will be suspended after serving 20 months in custody.

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19 September 2023

Rijven v Lynam and Rijven [2023] ACTSC 265

SUCCESSION – FAMILY PROVISION – Consent orders previously made following settlement – where court was unaware that a beneficiary was opposed to the making of the orders but was not a party to the proceedings – previous consent orders set aside – where parties reached a further settlement – further orders made by consent

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19 September 2023

Zhi v Registrar General of the Australian Capital Territory [2023] ACTSC 262

CIVIL LAW – Parentage Act 2004 (ACT) – Registration of father on birth certificate under Births, Deaths and Marriages Registration Act 2007 (ACT) – where registered father is not biological father – where registered father is not engaged in parenting – where biological father is engaged in parenting – parentage declaration made.

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19 September 2023

DPP v Clarke (No 2) [2023] ACTSC 261 (SCC 297 of 2022; SCC 298 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dangerous driving – drive at police – sentencing purposes – rehabilitation – community protection – where ongoing rehabilitation achieves community protection – Intensive Correction Order

The Supreme Court has sentenced an offender to 33 months imprisonment, served by way of Intensive Correction Order, for driving while disqualified, failing to stop a motor vehicle for police, driving a motor vehicle at a police officer and aggravated dangerous driving. The offender was also fined a total of $2723 for driving an uninsured and unregistered motor vehicle with a number plate issued for another motor vehicle. The offender had a substantial criminal history and entered an early plea of guilty.

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19 September 2023

DPP v Linsley [2023] ACTSC 255 (SCC 204 of 2022; SCC 205 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – offences against the person – acts endangering life – choke, suffocate or strangle – render insensible or unconscious – family violence – purpose of sentencing – rehabilitation – interests of justice – benefit to community – utility of late plea – intensive correction order not available where offender lives interstate – suspended sentence – good behaviour order

The Supreme Court has sentenced an offender to term of 16 month’s imprisonment to be suspended immediately and imposed a Good Behaviour Order for one offence of choke and render insensible or unconscious. The offence was of a serious nature and committed in a family violence context.

The offender pleaded guilty very shortly before his trial was due to commence. The plea was delayed in order that he could obtain a forensic advantage. The Court rejected a submission that the plea was entered at the first reasonable opportunity.

The Court took into account the offender’s troubled childhood, period of homelessness, drug use, and history of ADHD, anxiety, depression and reasonably constant suicidal ideation. The offender recently moved interstate and reconnected with family who are supportive of his rehabilitation. Ultimately, the Court considered that the protection of the community would be best achieved by imposing a sentence which focused on the offender’s rehabilitation and mental health.

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18 September 2023

DPP v Maki [2023] ACTSC 253

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge alone verdict – assault occasioning actual bodily harm – intentionally and unlawfully choke, suffocate or strangle – threat to kill – family violence – verdict of not guilty

The Supreme Court, by judge alone trial, has found the accused not guilty in relation to charges of assault occasioning actual bodily harm, intentionally and unlawfully choking and threatening to kill. The Court determine it could not be satisfied beyond reasonable doubt that the accused committed the offences.

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15 September 2023

DPP v Paff [2023] ACTSC 259 (SCC 113 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – “more than a single punch” – demonstrated commitment to rehabilitation – plea of guilty – general deterrence – sentence of imprisonment to be served by way of Intensive Correction Order – additional conditions supporting rehabilitation

The ACT Supreme Court has sentenced an offender to a term of 30 months’ imprisonment for an offence of recklessly inflicting grievous bodily harm. The sentence is to be served by way of Intensive Correction Order, with additional conditions mandating engagement with appropriate services to address mental health, anger management and alcohol and drug use. The offender must also undertake 300 hours of community service work in three years.

The offending in this matter involved public violence in the early hours of the morning whereby the offender both punched and kicked the victim’s face, causing significant injury to the victim. The offender entered a plea of guilty at an early stage in the proceedings and has demonstrated a commitment to rehabilitation.

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15 September 2023

DPP v Ivanisevic [2023] ACTSC 34

EVIDENCE LAW – TENDENCY EVIDENCE – Criminal proceedings – tendency of accused to act in an aggressive and violent manner toward the complainant – whether the probative value of the evidence outweighs the danger of unfair prejudice to the accused – whether generality of tendency would undermine Markuleski direction

The Supreme Court has permitted the prosecution to adduce tendency evidence in the trial of an accused charged with nine counts of threatened or actual violence in a domestic relationship. The application particularised the tendency as the accused having a tendency to act in an aggressive or violent manner toward the complainant and was limited to permitting the prosecution to rely on evidence on each count as tendency evidence to support each other count. The Court found that the significant probative value of the evidence outweighed the danger of unfair prejudice to the accused.

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14 September 2023

DPP v Williams [2023] ACTSC 224 (SCC 276 of 2022; SCC 126 of 2020; SCC 147 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aid and abet attempted aggravated burglary – [redacted] – criminal history – Bugmy principles – parity – sentence of imprisonment partially suspended – good behaviour order imposed

The Supreme Court has sentenced an offender to a 2-year term of imprisonment for the offence of aiding and abetting an attempted aggravated burglary. At the time of sentence, the offender had served approximately 14 months in custody. The sentence was suspended from the date it was handed down with the offender entering into a Good Behaviour Order for a period of 18 months.

The offender suffered childhood exposure to violence, neglect and drug use. The Court acknowledged the clear connection between the offender’s upbringing of severe disadvantage and his offending, particularly as his involvement in the offence was orchestrated by his mother. The offender has demonstrated good prospects of rehabilitation.

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14 September 2023

Calvary Health Care ACT Ltd v Australian Capital Territory (No 2) [2023] ACTSCFC 2

COSTS – Challenge to the Health Infrastructure Enabling Act 2023 (ACT) and the Health Infrastructure Enabling Regulation 2023 (ACT) – challenge to the validity of Act dismissed – Regulation amended following dismissal of challenge to Act – amendments to Regulation address some of the plaintiff’s arguments – where plaintiff asserts that passing of Regulation constitutes a costs event and that each party should bear its own costs as a result – proceedings would have been brought by plaintiff even if amended regulation had been in force at commencement – plaintiff to pay costs of the defendant up until the making of Regulation and parties to bear own costs thereafter.

The Full Court of the Supreme Court has granted leave to Calvary Health Care ACT Ltd to discontinue its proceedings against the Australian Capital Territory. The proceedings challenged the validity of the Health Infrastructure Enabling Regulation 2023 (ACT). The plaintiff sought to discontinue proceedings following amendments to the Regulation made on 29 June 2023.

The Full Court held that the plaintiff is to pay the defendant’s costs up to 28 June 2023, and made no order as to costs following that date.

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14 September 2023

Hrstic v Catlin Australia Pty Ltd [2023] ACTSC 248

CIVIL LAW – INTERLOCUTORY – work place injury – application to remedy purported non-compliance with notice provisions of the Civil Law (Wrongs) Act 2002 (ACT) –– interpretation of s 51 of the Civil Law (Wrongs) Act 2002 (ACT) – an insurer is not a respondent under s 51 – respondents in s 51 refer to respondents whose identity is known to the claimant – proper interpretation of the time provision in s 51(3)

The Supreme Court has declared that the insurer of a tortfeasor is not a respondent for the purposes of s 51 of the Civil Law (Wrongs) Act 2002 (ACT).

The plaintiff did not discover the identity of a company involved in his accident until 2 years after it occurred. Although the plaintiff served notice on the company, it had been deregistered and ceased to exist some 9 months prior. The plaintiff commenced proceedings against the public liability insurer of the company, seeking a declaration that it had provided the required notice, or alternatively, seeking authorisation to proceed with their claim despite non-compliance.

The Court held that on the correct interpretation of s 51, the insurer was not a "respondent" to whom notification had to be made under s 51, and therefore there was nothing preventing the plaintiff from continuing with his proceeding for compensation.

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13 September 2023

Mitchell v Australian Capital Territory [2023] ACTSC 249

CIVIL PROCEDURE — Interrogatories — Application for order requiring the defendant to answer further interrogatories – absence of satisfactory explanation for seeking second opportunity to interrogate – where information sought is exclusively possessed by the defendant – likelihood that further interrogation will facilitate the quick, inexpensive and efficient resolution of the proceedings

The Supreme Court has partly allowed an application by the plaintiff to serve interrogatories to be answered by the defendant.

Since amendment, the relevant rule requires that Court leave is required before issuing interrogatories at any stage. The Court held that, although interrogatories had been answered before and there were issues in the interrogatories as framed (stemming from issues in the pleadings itself), it was in interest of case management to allow the plaintiff to have amended interrogatories answered. This was particularly the case where the knowledge relevant was exclusively held by the defendant.

The Court ordered amended interrogatories be provided in accordance with its reasons and that the plaintiff pay the costs of the application.

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13 September 2023

Wilson v Allen [2023] ACTSC 257

PRACTICE AND PROCEDURE – PLEADINGS – Application to amend statement of claim – Application to join additional defendants – whether amendments are made for the purpose of deciding the real issues in the proceeding – whether the party is necessary to enable the court to adjudicate effectively and completely – leave granted to join additional defendants – statement of claim struck out – leave granted to re-plead statement of claim

The Supreme Court has granted an application by the plaintiffs to join additional defendants and amend their statement of claim. The plaintiffs sought to amend its claim to plead against the proposed additional defendants a claim in negligence and a claim for the wrongful lodgement of a caveat. The Court considered that in balancing the just resolution of the disputes as quickly, inexpensively and efficiently as possible, and the available judicial and administrative resources of the Court, it would favour the granting of the application. The Court also noted that although the plaintiffs prospects of success are doubtful, the plaintiffs should be given the opportunity to fully agitate the issues after a full exploration of the relevant facts.

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13 September 2023

R v White [2023] ACTCA 35

APPEAL – CRIMINAL LAW – Crown appeal against sentence – aggravated robbery, common assault and theft-related offences – whether individual sentences, degree of concurrency and total effective sentence was manifestly inadequate – whether initial sentence amounted to a “discount for multiple offending” – focus of enquiry is the total effective sentence – length of individual sentences and degree of concurrency relevant but not determinative – high degree of concurrency failed to reflect totality of criminality involved in the separate offences committed against different victims – total effective sentence found to be manifestly inadequate – consideration of residual discretion – appeal allowed – offender re-sentenced

The Court of Appeal has allowed an appeal against a sentence by the DPP on the basis that the total effective sentence was manifestly inadequate. The offences involved aggravated robbery, common assault and theft-related offences. The Court of Appeal resentenced the offender to five years’ imprisonment.

In coming to its decision, the Court of Appeal held that the length of individual sentences and degree of concurrency were relevant, but not determinative factors in considering whether the total effective sentence was manifestly inadequate. The Court of Appeal ultimately found that the high degree of concurrency in sentences failed to reflect the totality of criminality involved in the separate offences committed against different victims.

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13 September 2023

DPP v Lawson [2023] ACTSC 244 (SCC 232 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of suspended sentence order (SSO) by serious offending – where offender has made significant progress towards rehabilitation while in the community – where there are compelling reasons for offender to remain in the community – good behaviour order (GBO) cancelled – offender re-sentenced pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 to a sentence suspended immediately upon the condition the offender be of good behaviour

The Supreme Court has re-sentenced an offender who breached his suspended sentence order (SSO) by committing several offences. The offender’s good behaviour order was cancelled, and he was re-sentenced to a period of imprisonment for 5 months suspended immediately on the condition that he be of good behaviour for 11 months. The offender had made significant progress towards rehabilitation and consistent efforts to disengage from the criminal justice system while serving the original SSO in the community. The Court considered that returning the offender to full-time imprisonment would not be in the best interests of him or the community.

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12 September 2023

DPP v Clissold [2023] ACTSC 250 (SCC 329 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary with intent to steal – theft – young offender – burglary of commercial premises -– supportive family and pro-social supports – sustained employment – reasonable prospects of rehabilitation – diagnosis with a number of mental health issues – poor engagement with authors of Pre-Sentence report explained by mental health issues – offender demonstrated willingness to engage in counselling – s 10 threshold crossed – Intensive Corrections Order appropriate

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11 September 2023

DPP v Stewart [2023] ACTSC 252 (SCC 28 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence –damage property – unregistered firearm – prohibited weapon – forgery – guilty pleas – where strength of prosecution case was overwhelming but assisted by admissions – whether Bugmy principles apply – where significant period spent in custody before sentence – risk of deportation due to visa cancellation – where prospects of reform dependent on drug and alcohol rehabilitation – whether Drug and Alcohol Treatment Order should be made

The Supreme Court has sentenced an offender to 2 years, 4 months and 12 days’ imprisonment for nine offences. These included offences of damaging property, possessing an unregistered firearm, possessing a prohibited weapon and six forgery charges.   The forgery offences involved a pattern of conduct that consisted of the offender creating false medical certificates in the context of Court and ACAT hearings.

The Court took into account the offender’s time in custody before sentence, his early pleas of guilty, his social deprivation (including a childhood marred by family violence and instability), his prospects of deportation and his illicit substance abuse problems. Ultimately, the Court considered that the just and appropriate sentence was to impose a Drug and Alcohol Treatment Order so that the offender could address his substance dependency.

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11 September 2023

DPP v Tuiono [2023] ACTSC 251 (SCC 173 of 2023; SCC 174 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised possession of a firearm – traffic in a controlled drug – possess ammunition – where offender was on conditional liberty – limited utility of an ICO or SSO where NSW parole order revoked

The Supreme Court has sentenced an offender to 15 months imprisonment for trafficking in a controlled drug other than cannabis and 9 months for unauthorised possession of a 3D printed firearm found in the offender’s car, giving an aggregate sentence of 19 months and a non-parole period of 12 months. The offender was also fined $650 with no time to pay for unauthorised possession of ammunition found both in the firearm and in the car. The objective seriousness ranged from low to mid-range. The offender had a substantial criminal history and entered an early plea of guilty.

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8 September 2023

DPP v van de Zandt (No 2)

CRIMINAL LAW – EVIDENCE – Application for an advance ruling as to the admissibility of opinion evidence served by the accused – whether the opinion is admissible as expert evidence – whether the opinion is completely or substantially based on specialised knowledge

The Supreme Court has published its ruling given in advance of a trial that an expert opinion sought to be relied upon by the accused was not admissible.

The expert expressed the opinion that it was reasonably possible the accused was undergoing an episode of sexsomnia during the alleged sexual offending.  The Court held that the expert did not have the relevant expertise to express an opinion on that issue. The Court further held that more confined evidence from the expert limited to a description of the contents of DSM-V concerning sexsomnia would impermissibly invite the jury to speculate. The Court indicated that an adjournment would be allowed if sought to enable the accused to investigate obtaining another expert report.

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7 September 2023

Pye v Registrar, Domestic Animals Act 2000 [2023] ACTSC 247

APPEAL – ACT CIVIL AND ADMINISTRATIVE TRIBUNAL – Appeal Division – Domestic Animals Act 2000 – decision to destroy dangerous dog confirmed by original and appeal tribunal – whether appeal tribunal erred in deciding to hear appeal as a review – whether there was jurisdictional error – procedural unfairness – whether the procedural unfairness was material – appeal upheld in part

The Supreme Court has upheld, in part, an appeal from a decision of the ACT Civil and Administrative Tribunal. The decision under appeal was a decision of the Appeal Tribunal dismissing an appeal from an original decision of the Tribunal that the appellant’s dog be euthanised and that the appellant’s special licences to keep two declared dangerous dogs be cancelled. The appellant claimed she was denied procedural fairness by not being able to obtain and tender a full assessment of the dog’s behaviour and temperament from a dog behaviourist of her choice. The Court found that the appellant was denied procedural fairness at the initial Tribunal hearing, and this procedural unfairness was not (and should have been) cured before the Appeal Tribunal. The Court did not consider there was any demonstrated error in terms of the Appeal Tribunal’s decision to confirm the revocation of the special licences.

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7 September 2023

Core Building Group Pty Ltd v Dickson Developments Precinct 1 Pty Ltd [2023] ACTSC 202

FREEZING ORDERS – Freezing orders sought against two companies – where each company is a special purpose vehicle for a construction project – orders sought in circumstances where developers have called on security bonds provided by builder – plaintiff fears dissipation of assets in order to frustrate potential judgment – whether plaintiff has good arguable case against each defendant – temporary freezing orders made

The Supreme Court has made freezing orders against two companies. The companies are each developers of a construction project. Each company called upon security bonds in circumstances which the plaintiff asserts suggested that the companies had an intention of frustrating any potential judgment which the plaintiff might be entitled to. The plaintiff satisfied the court that it had a good arguable case against each defendant and so the court made temporary freezing orders against each defendant.

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7 September 2023

DPP v van de Zandt [2023] ACTSC 228

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to set aside election for judge alone trial – where charge concerns conduct alleged to have occurred in 1986 – whether s 84 of the Legislation Act 2001 (ACT) operates to deem a reference to ss 92E and 92K of the Crimes Act 1900 (ACT) a reference to ss 55 and 61 – whether the accused accrued a right to elect for a judge alone trial thereby engaging s 102 of the Legislation Act 2001 (ACT) – declaration that the election by the accused is not a valid election

The Supreme Court has declared that an election for trial by judge alone is invalid and ineffective. The election was filed on the basis that the accused “accrued” a right to elect for a judge alone trial even though the Supreme Court Act 1933 (ACT) would appear to presently deny the accused that right. The accused submitted that such a right was preserved by the operation of the Legislation Act 2001 (ACT), combined with the fact that such a right “accrued” either when he committed the offence, or when the legislature initially enabled accused persons to elect for a judge alone trial in 1993 (at which time the Supreme Court Act 1933 (ACT) would not have denied the accused that right).

The court determined that the election was invalid and ineffective. The accused did not accrue any such right to elect for a judge alone trial, because any such right could only ever be procedural, and such rights do not persist despite being overtaken by new legislation.

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7 September 2023

DPP v Murphy (No 2) [2023] ACTSC 227 (SCC 92 of 2022; SCC 93 of 2022 ; SCC 350 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender found guilty by jury of offences including recklessly inflicting grievous bodily harm, engage in sexual intercourse without consent and choke strangle or suffocate – where offender pleaded guilty to other charges following finding of guilt – where all offending occurred in family violence context – offences range from the mid-range of objective seriousness to the worst category of case – risk of further offending – sentence of full-time imprisonment imposed

The Supreme Court has sentenced Shay Murphy to 14 years and two months imprisonment for offences including recklessly inflicting grievous bodily harm, sexual intercourse without consent and choke, suffocate or strangle. The offender was found guilty by jury for offences against two victims, and subsequently pleaded guilty to further offences to two other victims. All offending occurred in a family violence context, and the offences ranged from the mid-range of objective seriousness to the worst case

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4 September 2023

Burnett v 3 Property Group 10 Pty Ltd (No 2) [2023] ACTSC 215

REAL PROPERTY – CAVEATS – Application to extend caveat – where caveat supported by asserted claim to specific performance – where orders previously made extending caveat subject to plaintiff taking steps to cure defects in proceedings –plaintiff seeks leave to file further Originating Claim, Statement of Claim and to join second plaintiff – whether plaintiffs’ claim for specific performance is supported by evidence of plaintiffs being ready to complete – whether plaintiffs have elected for damages over specific performance – whether defence of laches applies – caveat extended

The Supreme Court has further extended a caveat over the whole of a housing development, in circumstances where the caveat was extended on a previous occasion (Burnett v 3 Property Group 10 (No 1) [2023] ACTSC 197) but subject to the plaintiff taking steps to amend its originating claim and statement of claim and putting on further evidence as to its stated willingness to complete the purchase of the unit. The court was satisfied that the plaintiff’s evidence in this respect was sufficient and granted the extension of the caveat over the housing development, to be narrowed upon the registration of the units plan.

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4 September 2023

R v Hanson (No 2) [2023] ACTSC 158

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction order arising from further offending – whether it is in the interests of justice for the court to cancel ICO – ICO not cancelled

The Supreme Court has declined to cancel an offender’s ICO following breach offending. The offending consisted of fresh offences of obtain property by deception. It was held that there was insufficient evidence that the offending suggested a broader unwillingness or inability to comply with the ICO conditions. Further, there was evidence which suggested that supervision by the parole board has been effective.

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4 September 2023

DPP v KC [2023] ACTSC 213 (SCC 217 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender pleaded guilty to charge of sexual intercourse with a person under the age of 10 – where offender was the victim’s next door neighbour – where offender already serving term of imprisonment for sex offence – where offender’s health is precarious – sentence of imprisonment imposed – sentence imposed partially concurrent with existing sentence

The Supreme Court has sentenced the offender to a sentence of 18 months for the offence of sexual intercourse with a person under the age of 10. The offender was the victim’s next-door neighbour and the offence occurred between 1993 and 1995. The offender is 63 years old and is presently serving a custodial sentence for past sex offences. His health is precarious, having suffered multiple strokes. The effect of the sentence imposed is to add 12 months to the length of his total sentence, taking account of his past offences.

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1 September 2023

In the Estate of Gray [2023] ACTSC 241

SUCCESSION – EXECUTORS AND ADMINISTRATORS – JUDICIAL ADVICE – whether judicial advice should be given – whether executor has complied with s 64 of the Administration and Probate Act 1929 (ACT) – whether executor should make interim distribution – whether executor would be protected from personal liability – judicial advice given – executor complied with s 64 – executor justified and protected in making interim distribution

The Supreme Court has granted an executor’s application for judicial advice. The judicial advice sought related to whether the executor had complied with s 64 of the Administration and Probate Act 1929 (ACT) and whether the executor was justified in making an interim distribution 6 months after probate was granted. Advice was sought in the context of a potential family provision claim by a person residing in the US purporting to be a biological child of the deceased, who had sent emails and letters to the deceased prior to his death.

In the opinion of the Court, the executor had complied with s 64, and was justified in making the interim distribution, as no notice had been received of any potential, intended or actual family provision claim.

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1 September 2023

Supaphien v Chaiyabarn  [2023] ACTSC 240

DEFAMATION – application to determine if the element of serious harm is established – procedure – separate question - application to dismiss the proceedings – whether serious harm has been established – applicable principles – serious harm not established – proceedings dismissed

The Supreme Court has dismissed defamation proceedings, finding that the element of serious harm was not established. The proceedings relate to one oral statement and various social media posts alleging that the plaintiff sold the first defendant a fake Chanel bag which the plaintiff advertised as genuine. The Court heard an application for the separate question of whether serious harm had been established on the plaintiff’s pleaded particulars and evidence to be determined before trial. The Court determined that the plaintiff’s evidence was not sufficient to establish that serious harm had occurred, and/or that such harm was caused by the alleged defamatory statements. Accordingly, the proceedings were dismissed. The Court did not find it necessary to consider the pleading point, having determined the evidence was insufficient.

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1 September 2023

Kelley Jeffries (a pseudonym) v ACT; Sabrina Cooke (a pseudonym) (by her litigation guardian Kelley Jeffries (a pseudonym)) v ACT [2023] ACTSC 239

CIVIL LAW – PRACTICE AND PROCEDURE – Protected and sensitive information – application for an order that protected and sensitive information be provided to the Court – application for an order that access to protected and sensitive information be provided to the parties - procedures to be adopted in an application pursuant to s 866 of the Children and Young People Act 2008 (ACT) – whether the territory is an “information holder” pursuant to s 843 of the Act – best interests of a child

The Supreme Court has described the procedure to be undertaken for an order allowing parties access to protected and sensitive information as defined in the Children and Young People Act 2008 (ACT) (the Act). The plaintiffs sought access to documents containing protected and sensitive information held by the Child and Youth Protection Service to assist them in their cases against the defendant for alleged negligent acts or omissions. The Court provided guidance as to the appropriate procedure that parties must take when seeking access to such protected and sensitive information under the Act.

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31 August 2023

DPP v Kakar [2023] ACTSC 236

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – murder – attempted murder – diagnosis of schizophrenia – plea of not guilty by reason of mental impairment – prosecution agrees special verdict should be entered – whether procedure under s 321(2) of the Crimes Act 1900 (ACT) a ‘trial’ – whether accused mentally impaired pursuant to s 28 of the Criminal Code 2002 (ACT) – whether appropriate to make an order for detention – assessment of nominated term – whether mental impairment to be taken into account in determination of nominated term

The Supreme Court has entered a special verdicts of not guilty by way of mental impairment for one count of murder and two counts of attempted murder. Two psychiatrics experts and a professor of pharmacology were of the unanimous view that, at the time of the offending, the accused was suffering from a mental illness, namely schizophrenia, such that he was unable to control his conduct and did not appreciate his conduct was wrong. The prosecution agreed to the entering of the special verdicts in respect of each count. Nominated terms totalling 30 years were specified by the Court

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31 August 2023

Tiffen v Madders [2023] ACTSC 238

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from findings of guilt – evidence improperly or illegally obtained – execution of search warrants – whether Magistrate erred in ruling evidence admissible under s 138 of the Evidence Act 2011 (ACT) – Magistrate erred in admitting some evidence – appeal allowed in respect of some evidence – verdicts set aside – matter remitted to the Magistrates Court for redetermination

The ACT Supreme Court has considered an appeal against conviction from the Magistrates Court. The appeal concerned the finding that evidence that had been improperly or illegally obtained by police in the execution of personal and residential search warrants was admissible. The evidence in question was stored on three electronic devices, one of which had already been found to be inadmissible by the Magistrate. Of the remaining two devices, the Court found one device was admissible and the appeal in relation to this evidence was dismissed. The appeal was upheld in respect of evidence on the final device which was determined to be not admissible as a result of an attempt to conceal impropriety by a police officer. The verdicts were set aside and the matter has been remitted to the Magistrates Court for redetermination on the six guilty counts.

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31 August 2023

Meas (by his litigation guardian Adcock) v Tipping (No 2) [2023] ACTSC 237

PRACTICE AND PROCEDURE – COSTS – Where plaintiff made offer of compromise – where offer not accepted and judgment on appeal no less favourable to plaintiff – where proposed settlement would have required Court’s approval and was silent on funds management – where portion of costs incurred prior to insertion of relevant rules – whether offer complied with r 1002 of the Court Procedures Rules 2006 (ACT) – whether reason for departure from default position in r 1010 that costs be ordered on a solicitor-client basis

TRUSTS AND TRUSTEES – Where damages judgment included provision for funds management – where plaintiff seeks the Court make a direction to substitute the public trustee and guardian with a private trustee

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28 August 2023

Mehta v Woolworths Group Ltd [2023] ACTSC 214

PRACTICE AND PROCEDURE – JOINDER OF PARTIES – Application to join second defendant to proceedings – personal injury – claim against supermarket arising from operation of sliding doors – defence asserting contract with maintenance company – whether maintenance company should be joined as a defendant – defects in defendant’s pleadings – where plaintiff’s solicitors significantly delayed addressing issue of joinder of second defendant – basis for joining second defendant as entity contracted to maintain the doors – desire to avoid multiplicity of proceedings and potentially inconsistent outcomes – where defendant neither consents to nor opposes application – joinder of additional defendant allowed – hearing vacated

The Supreme Court has allowed the joinder of an additional defendant to personal injury proceedings. The matter involves a claim against a supermarket arising from the operation of sliding doors at its entrance. The defendant asserted that it had delegated part of its duty of care owed to entrants to a subcontractor, who was allegedly responsible for the maintenance of the doors.

The Court found that, notwithstanding defects in the defendant’s pleadings, and significant delay by the plaintiff’s solicitors in addressing the issue of joinder of the second defendant, the joinder should be allowed. This is because of a desire to avoid multiplicity of proceedings and potentially inconsistent outcomes. The hearing date was vacated to allow time for the second defendant to be added, and any claims for contribution or indemnity between the defendants to be made.

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25 August 2023

Beno Excavations Pty Ltd v Harlech Enterprises Pty Ltd (No 5) [2023] ACTSC 233

CIVIL LAW – APPLICATION – Application for interim orders – application to stay the enforcement of an order for the repayment of restitution – whether orders for restitution were made on an interlocutory or final basis

The Supreme Court has stood over an application by the first defendant for interim orders, ultimately seeking to set aside the requirement to pay a restitution order.

The first defendant was ordered to pay restitution to the plaintiff, which is yet to be paid, and is subject to an upcoming enforcement hearing. The first defendant brought an urgent application to stay the enforcement hearing requirements until an application to set aside the restitution order is dealt with.

The key issue was whether the restitution order was made on an interlocutory or final basis, and thereby whether the first defendant had an avenue to seek that this order be set aside. The Court reached a preliminary view that the nature of the order was final. Accordingly, the matter was stood over for the first defendant to be heard.

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24 August 2023

R v Liu [2023] ACTSC 188

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender pleaded guilty to three charges of sexual intercourse without consent and five charges of act of indecency – offending occurred against six victims – whether offences committed for sexual gratification or whether the offender believed that he was providing a service to the victims – objective seriousness ranges from above the mid range to low-range – no criminal history – sentence of full-time imprisonment imposed

The Supreme Court has sentenced an offender to a period of full-time imprisonment for 3 years, five months and 22 days, to be suspended after 16 months for sex offences committed against six victims. The offences were committed in the context of massage services being provided by the offender. The offences ranged from being above the mid-range of objective seriousness to being in the low range of objective seriousness.

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24 August 2023

R v Stephens [2023] ACTSC 226

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – making a false statement in an application – offending below the mid range of objective seriousness – no criminal history – recognizance of good behaviour and fines imposed

The Supreme Court has sentenced Ilze Stephens to a recognizance of good behaviour for 12 months and a fine of $2000, for four counts of the offence of making a false statement in an application. The applications related to housing assistance provided by the Australian Defence Force to her son.

The offending was below the mid-range of objective seriousness. The offender played a subordinate role in the offending and had no criminal history. The court found that the offender had a minimal risk of reoffending and is a person of good character.

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23 August 2023

DPP v Higgins [2023] ACTSC 230

CRIMINAL LAW – EVIDENCE – Admissibility of photo board identification evidence – where police conducted the photo board procedures in contravention of s 235 of the Crimes Act 1900 (ACT) – consideration of s 138 of the Evidence Act 2011 (ACT) – significant evidence in the proceedings – desirability of admitting evidence outweighed by undesirability of admitting evidence obtained in the way in which the evidence was obtained – photo board identification evidence not admissible

The Supreme Court has ruled photo board identification evidence to be inadmissible in a judge alone trial concerning alleged offences of aggravated robbery and forcible confinement. The investigating police officer conducted photo board identification procedures in contravention of the Crimes Act 1900 (ACT)by failing to offer the accused the opportunity to participate in an identification parade. The photo board identification evidence was significant evidence in the proceedings and the case was likely to fail if the evidence was not admissible. The Court found the gravity of the contravention, the high degree of recklessness and the lack of difficulty of obtaining the evidence without the contravention tended towards the evidence not being admitted.

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21 August 2023

R v Gardner (No 3) [2023] ACTSC 229

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of good behaviour order – Griffiths remand – deferred sentence – appropriateness of prioritising rehabilitation

The Supreme Court has adjourned dealing with an offender for breaching his Good Behaviour Order (GBO) until after the completion of rehabilitation.

The original GBO was imposed for an offence of inflicting grievous bodily harm. During the term of that GBO, the offender was convicted and sentenced for possessing a taser in the Magistrates Court. Despite the offender’s extensive criminal history, the Court considered that he had already served length periods in custody and that the breach was not serious. It was held that much of the offending (including the breach) stemmed from drug addiction, set in the context of the offender’s extremely difficult life.

Prior to dealing with the breach, the offender was granted bail and the proceedings adjourned for him to undertake residential rehabilitation. The offender had been compliant with all Court orders and there was strong evidence that the offender was progressing well in rehabilitation. Accordingly, the Court held it was it appropriate to continue the Griffiths remand until a period after the offender completed the program.

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21 August 2023

R v Gardner (No 2) [2023] ACTSC 89

CRIMINAL LAW – BAIL – Presumption of bail – where applicant to be dealt with for breach of a good behaviour order – desirability of residential rehabilitation – where timely assessment of suitability for residential rehabilitation unavailable to persons in custody – risk of reoffending – strong family support

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18 August 2023

Burnett v 3 Property Group 10 Pty Ltd [2023] ACTSC 197

REAL PROPERTY – CAVEATS – Application to extend caveat – where caveat applies to whole development – where caveat supported by asserted claim for specific performance of contract for sale of single unit – where defects in pleadings and evidence affect the proper constitution of proceedings – caveat extended – caveat to be narrowed to single unit upon registration of units plan – plaintiff granted time to address defects in proceedings

The Supreme Court has extended a caveat over the whole of a housing development, to be narrowed to a single unit upon registration of the units plan. The caveat was supported by the plaintiff’s asserted claim for specific performance of a contract for sale of a unit in the development.

The defendant raised defects in the plaintiff’s pleadings and evidence that affects the proper constitution of proceedings. The court granted the plaintiff time to address the defects.

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11 August 2023

Australian Secure Capital Fund Ltd v Haider [2023] ACTSC 205

PRACTICE AND PROCEDURE – DEFAULT JUDGMENT – Application to set aside default judgment – default judgment sought and obtained in circumstances where defendant failed to file a defence – where default judgment would enable plaintiff to seek possession of premises used by the defendants to secure loan – whether absence of first plaintiff on default judgment application warrants setting aside of judgment – whether the proposed defence is meritorious – whether judgment should be set aside due to a fundamental defect in the mortgage document forming the basis for the claim for possession – default judgment set aside – no orders as to costs

The Supreme Court has allowed an application to set aside a default judgment. Default judgment was obtained by the plaintiffs after the defendants failed to file a defence. The judgment related to a claim to seek possession of premises owned by the defendants and used by them as security for a loan taken out with the plaintiffs. The judgment was set aside due to a defect in the registered mortgage which differed substantially from the instrument signed by the defendants. No order as to costs was made.

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11 August 2023

DPP v Beniamini (No 2) [2023] ACTSC 195 (SCC 255 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender pleaded guilty to charge of conspiracy to cultivate a trafficable quantity of cannabis plants for selling – offence in the low to mid-range of objective seriousness – offender has substantial criminal history – sentence of full-time imprisonment imposed

The Supreme Court has sentenced Mr Beniamini to a term of imprisonment of 14 months and 15 days, to be served in full-time custody, with a non-parole period of 9 months. Mr Beniamini pleaded guilty to the charge of conspiracy to cultivate a trafficable quantity of cannabis for sale. The objective serious of the offending was in the low to mid-range. The offender had a substantial criminal history, including past breaches of good behaviour orders associated with suspended sentences.

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10 August 2023

DPP v Fitzgerald (a pseudonym) [2023] ACTSC 194 (SCC 59 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual relationship with a young person – victim aged between 13 and 15 years old – offence in the upper end of mid-range of objective seriousness – early plea of guilty – no criminal history – sentence of imprisonment imposed

The Supreme Court has sentenced Mark Fitzgerald (a pseudonym) to seven years and six months’ imprisonment for the offence of maintaining a sexual relationship with a young person. The non‑parole period is four years and two months. The offences took place over a period of over two years. The victim of the offending was the offender’s daughter, then aged between 13 and 15 years old.

The court held that the objective seriousness of the offence was in the upper end of the mid-range of objective seriousness. The offender has no criminal history and entered an early plea of guilty.

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9 August 2023

R v Brown [2023] ACTSC 178

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – where applicant to be dealt with for breach of a good behaviour order – entitlement to bail – where applicant has extensive support available upon exiting custody

The Supreme Court granted bail to the offender in relation to proceedings before the Court for breach of a good behaviour order. The Court has the power to make a bail order in relation to the breach of a good behaviour obligation because the breach is considered an offence for the purposes of the legislation. The Court stated that the application was strong considering that offender has wraparound support from family and support services, and they recently had an intensive correction order reinstated by the Sentence Administration Board. The application for bail was not opposed by the Crown who agreed to the proposed conditions.

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9 August 2023

Child A (a pseudonym) v Childrens Court of the Australian Capital Territory [2023] ACTSC 208

CRIMINAL LAW AND PROCEDURE – forensic procedure orders – interim order – final order – balancing interests to be considered – public interest in obtaining evidence – public interest in upholding the physical integrity of the suspect

ADMINISTRATIVE LAW – judicial review of magistrate’s order that a forensic procedure be carried out – whether error of law is established – whether improper exercise of power – whether magistrate erred by not considering whether to confirm or disallow the interim order pursuant to s 41(2) of the Crimes (Forensic Procedures) Act 2000 (ACT) – principles of statutory construction – application dismissed

The Supreme Court has dismissed the plaintiff’s application seeking judicial review of a magistrates’ order granting a final order for the carrying out of a forensic procedure on a young person pursuant to the Crimes (Forensic Procedures) Act 2000 (ACT). The plaintiff argued that the magistrate erred, among other things, by not firstly confirming the validity of the interim order by way of review pursuant to s 41(2) of the Act. The Court held, based on the proper construction of the Act, there was no such obligation placed on the magistrate to firstly consider the validity of the interim order before considering whether to make a final order. The Court also noted that if the plaintiff’s submissions were to be accepted, it would frustrate the purposes of the Act.

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9 August 2023

Ezekiel-Hart v The Council of the Law Society of the ACT (No 6) [2023] ACTSC 219

CIVIL LAW – PRACTICE AND PROCEDURE – application to amend name of ninth defendant – entity originally named has no independent legal existence – Commonwealth of Australia correct party to be named – no prejudice to the plaintiff despite late notice – application granted

The Supreme Court has granted an application to amend the name of a defendant from the “ACT Police Commissioner” to the “Commonwealth of Australia (as represented by the Australian Federal Police)”. The Court found that as the Australian Federal Police is not an entity with independent legal existence, the correct party to be named is the Commonwealth. Despite late notice of the application, the Court considered there would be no prejudice to the plaintiff as the plaintiff had already adopted the defendant’s corrected name in various documents filed with the Court.

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9 August 2023

Ezekiel-Hart v The Council of the Law Society of the ACT (No 5) [2023] ACTSC 218

PRACTICE AND PROCEDURE – obligations under Practice Direction No 1 of 2022 – communication with chambers – emails not within the terms of Practice Direction 1 sent to judge’s chambers  – no communication with chambers without prior knowledge and consent of other parties  – obligations under the Legal Profession (Barristers) Conduct Rules 2021 (ACT) and Legal Profession (Solicitor) Conduct Rules 2015 (ACT) to seek and obtain consent from opponent before communicating with chambers – no consent sought or obtained from plaintiff – communications inappropriate

The Supreme Court has found that email communications sent by parties to a judge’s chambers were inappropriate and did not accord with the Court's Practice Directions. The Court said that there should be no communication with judicial chambers without the prior knowledge and consent of the other parties in the proceeding, unless the communication responds to one from the judge’s chambers or is authorised by a direction, relates to a trivial matter of practice or administration, is in an ex parte matter or is sent in exceptional circumstances. The emails were found to be inappropriate as consent was not sought or obtained by the parties and none of the exceptions applied. The Court has ordered that the parties are no longer to correspond with the judge’s chambers unless in accordance with practice directions and the relevant conduct rules.

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9 August 2023

Ezekiel-Hart v The Council of the Law Society of the ACT (No 4) [2023] ACTSC 217

PRACTICE AND PROCEDURE – where tender of documents occurred in the absence of the plaintiff – whether any prejudice is established – where plaintiff was present when orders were made – tender accepted

The Supreme Court has allowed the tender of four certificates of dismissal in the Magistrates Court of the ACT despite the absence of the plaintiff at the hearing of the application. The Court held that given the plaintiff appeared on the occasion the Court gave its orders, the plaintiff would not suffer any prejudice notwithstanding they had not been served on the plaintiff previously.

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9 August 2023

Ezekiel-Hart v The Council of the Law Society of the ACT (No 3) [2023] ACTSC 216

PRACTICE AND PROCEDURE – multiple applications to adjourn proceedings – application for recusal – where plaintiff sent emails to chamber’s seeking an adjournment – where plaintiff filed an application seeking leave to appeal against interlocutory orders – no evidence provided – applications dismissed

The Supreme Court has dismissed the plaintiff’s applications, sent by email to the judges’ chambers, for an adjournment and recusal. The plaintiff’s applications were in the form of multiple emails sent to the judges’ chambers. The Court, having considered the relevant principles, dismissed the applications for an adjournment on the basis that no evidence was filed in support of the applications and the applications were express in vague, general terms. In respect of the application for recusal, the Court dismissed the application on generally the same reasons.

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9 August 2023

DPP v Wright [2023] ACTSC 196 (SCC 212 of 2023; SCC 213 of 2023; SCC 267 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – conspiracy to cultivate a trafficable quantity of cannabis – trafficking in a controlled drug – possessing a drug of dependence – money laundering – possessing a prohibited weapon – possessing equipment to cultivate a controlled plant – conspiracy offence in the low to mid-range of objective seriousness – possessing equipment to cultivate a controlled plant, possessing a drug of dependence and possessing a prohibited weapon offences in the low-range of objective seriousness – trafficking and money laundering offences in the mid-range of objective seriousness – good prospects of rehabilitation – sentence of imprisonment imposed to be served by way of intensive correction – fines imposed

The Supreme Court has sentenced John Wright to three years and six months’ imprisonment, to be served by way of an intensive corrections order, the payment of fines and community service. The offences included conspiracy to cultivate a trafficable quantity of cannabis, trafficking in cocaine and possession of a prohibited weapon.

The court found that the offender had good prospects of rehabilitation and determined that a sentence served in the community pursuant to an intensive corrections order was appropriate, provided that the sentence also incorporated fines and a requirement to perform community service.

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9 August 2023

Barns v Cunningham [2023] ACTSC 180

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Application for leave to file a notice of indemnity and contribution – where the notice if allowed would expand the liability of a deceased defendant – where the application reagitates earlier findings and resiles from previous positions – actual prejudice

The Supreme Court has refused an application for leave to file a notice of indemnity or contribution out of time. The application was brought by the first defendant (a general practitioner) to expand the claim against the third defendant (a medical practitioner) in medical negligence proceedings.  The third defendant is deceased.

The Court refused leave on the grounds that the late filing of a notice would result in actual prejudice as the third defendant is unavailable to provide instructions or give evidence in relation to the proposed expanded claim.  The applicant had previously opposed a similar application brought by the plaintiff.  The application was refused with costs.

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9 August 2023

Mahanay v Phelan [2023] ACTSC 162

APPEAL – CRIMINAL LAW – Appeal against sentence – whether the sentencing magistrate considered alternatives to full-time imprisonment – whether discounts for plea and assistance were applied – where errors conceded – consideration of admissibility of evidence in an appeal governed by s 214 of the Magistrate’s Act

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – re-sentencing – making off without payment – driving a motor vehicle without consent – failure to stop – unauthorised possession of prohibited firearm – disposing of a prohibited firearm – where the offender has no prior convictions – application of Bugmy principles

The Supreme Court has allowed an appeal from sentences imposed in the Magistrates Court and re-sentenced the offender.

The appellant was sentenced to terms of full-time imprisonment for three series of offences relating to making off without payment; driving without consent and failing to stop and possessing and disposing of a prohibited firearm. The prosecution conceded error in that sentencing discounts had not been applied properly.  The principal ground of appeal argued was that alternatives to full time imprisonment had not been considered.

The Court held that the threshold for imprisonment had not been crossed for the offences of making off without payment and imposed a good behaviour order for those offences.  For the driving offences, it was held to be inappropriate to interfere with the sentences.  For the firearm offences, the Court held there were errors in the application of both plea and assistance discounts and resentenced accordingly.  Having regard to the circumstances of the offender, including compelling hardships which enlivened the Bugmy principles, the Court suspended the sentences of imprisonment upon the entering of a good behaviour order.

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8 August 2023

R v DU (No 6) [2023] ACTSC 151 (SCC 15 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of intensive correction order – whether it is in the interests of justice to cancel the intensive correction order – where the intensive correction order has expired – where the offender demonstrates advanced rehabilitation

The Supreme Court has found that it was not in the interests of justice to cancel an intensive corrections order (ICO) relating to an offender who had breached the order by further reoffending.  The offender breached the ICO when contravening a family violence order naming his ex-wife as the protected person by making derogatory remarks about her in messages to their children. The Court found that, in circumstances where the ICO had already expired and the offender had advanced well along a path of rehabilitation, it would not be in the interests of justice to cancel the ICO.

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8 August 2023

Millington v Peach [2023] ACTSC 126

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Application to set aside a subpoena – no apparent relevance of documents sought – where the threshold for relevance is low – where the subpoena may reveal material relevant to cross-examination of a witness

The Supreme Court has dismissed an application brought by defendants to set aside a subpoena. The subpoena, which sought CCTV footage from dates unrelated to the dates of the facts of the proceedings, was opposed as it on its face sought irrelevant material.  The Court was however satisfied that the material sought may be relevant to cross-examination of a witness and accordingly that the low threshold of relevance for a subpoena was met.

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8 August 2023

Simmons (a pseudonym) v Wheeler (a pseudonym) [2023] ACTSC 191

PRACTICE AND PROCEDURE – CROSS-VESTING LEGISLATION – Application to transfer proceedings to Supreme Court of Queensland in accordance with the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) – not in the interests of justice for the proceedings to be transferred – application dismissed

PRACTICE AND PROCEDURE – application to separate trial of the second defendant – interrelationship between issues – potential overlap of evidence and argument – same witnesses would be called at both trials – difficulty of separating harm caused by each defendant – risk of inconsistent findings if trials separated – re-traumatising effect on plaintiffs of giving evidence and being cross-examined as to sexual assaults multiple times – application dismissed

The Supreme Court has dismissed the second defendant’s application for a separate trial and transfer of the proceedings to Queensland. The claim relates to two plaintiffs who allege they were sexually abused by the three defendants when they were children. The Court found that the trial of second defendant should not be separated because of the interrelationship of issues giving rise to a potential for inconsistent findings as to attributable harm and the credit of witnesses, and the re-traumatisation effect on the plaintiffs of giving evidence multiple times. The Court further found that it was not in the interests of justice for the proceedings to be transferred, and the Supreme Court of Queensland was not in any better position to decide the issues than the Supreme Court of the ACT. The Court considered that while a separate trial and/or transfer would save costs for the second defendant, it would increase costs to the other parties.

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7 August 2023

Ezekiel-Hart v The Council of the Law Society of the ACT (No 2) [2023] ACTSC 207

CIVIL LAW – PRACTICE AND PROCEDURE – application to issue subpoenas – whether there is a legitimate forensic purpose – whether subpoenas were oppressive – application dismissed

CIVIL LAW – PRACTICE AND PROCEDURE – injunctive relief – application to restrain tribunal proceedings instituted by the first defendant – where plaintiff claims “victimisation” and “discrimination” – application dismissed

The Supreme Court has dismissed an application to issue multiple subpoenas and restrain proceedings in the ACT Civil & Administrative Tribunal instituted by the first defendant. The Court found the plaintiff required leave to issue the subpoenas, and having considered the relevant principles, the Court held there was no legitimate forensic purpose served by issuing the subpoenas. In addition, the Court found there was no basis to restrain the Tribunal proceedings instituted by the first defendant.

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3 August 2023

Vuolo v Fall [2023] ACTCA 33

Judgments summary

APPEAL – CRIMINAL LAW – Appeal against sentence – offence of stalking – whether non-conviction order should have been made – whether error in finding non-conviction order was an “outlier” – whether error in implied finding that a non-conviction order accompanied by a good behaviour order was not punishment – whether sentence nevertheless appropriate – error established but sentence under appeal appropriate – appeal dismissed

The Court of Appeal has dismissed an appeal which sought to overturn a finding by a single judge that a sentence imposed in the Magistrates Court was manifestly inadequate.

The appellant was originally sentenced to one charge of stalking, contrary to s 35 of the Crimes Act 1900 (ACT), with a good behaviour order for 12 months, without imposing a conviction.

The Court held that in setting aside the sentence, the judge had erred in describing the original sentence as not “attracting punishment”. The Court independently assessed the appeal from the sentencing magistrate and whether a conviction should have been recorded.

The Court held that the sentence of the magistrate was manifestly inadequate and that the entry of a conviction was the appropriate sentence in light of the objective seriousness and subjective circumstances. Accordingly, the Court dismissed the appeal.

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3 August 2023

R v Naing [2023] ACTSC 210 (SCC 147 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on person under 16 years – five counts of offending –two victims known to the offender – intoxication and moral culpability – no relevant criminal history – hardship to third parties – importance of general deterrence in sentencing sexual offences against children – term of full-time imprisonment – nonparole period imposed

The Supreme Court has sentenced an offender to an overall sentence of 3 years’ imprisonment, with a nonparole period of 18 months. The offender was convicted after trial by jury of five offences of act of indecency on a person under 16 years. There were two victims in this matter who were sisters. The imposition of a full-time custodial sentence reflects the importance of general deterrence in sentencing for sexual offences against children.

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3 August 2023

Stodulka v Vogue Pergolas Canberra Pty Ltd [2023] ACTSC 211

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – application to strike out paragraphs of amended statement of claim – whether defendant has knowledge of case to meet – whether inconsistency on the face of the pleadings – whether pleadings adequately define issues for trial – application granted in part

The Supreme Court has partly granted the defendants’ application to strike out three paragraphs of the plaintiff’s amended statement of claim in a commercial dispute between a vendor and purchaser of a business. The Court found that one of the paragraphs should be struck out and repleaded as it did not adequately define the issues for trial. The other two paragraphs the subject of the application were not struck out as the Court found they were not inconsistent with the plaintiffs’ defence to the defendants’ counterclaim. The Court further determined that the defendant was aware of the case to meet in relation to those two paragraphs as the defendant had a copy of the written agreement identified and referred to in those paragraphs.

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3 August 2023

DPP v Welsh [2023] ACTSC 209

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender accepted into residential rehabilitation program – whether adjournment of sentence until after completion of program is appropriate – sentence adjourned until parole decision is made – potential for further adjournment.

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1 August 2023

DPP v Austin (No 3) [2023] ACTSC 204

CRIMINAL LAW – EVIDENCE – Sexual offence proceedings – credibility evidence – where prosecution sought to adduce evidence of prior consistent representations of the complainant - whether s 108 of the Evidence Act 2011 (ACT) enlivened – whether discretion should be exercised to admit evidence – leave to adduce evidence refused

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31 July 2023

Peter v Brownlie [2023] ACTSC 198

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – whether sentences manifestly excessive – whether principle of totality considered – Magistrate considered rehabilitation and deterrence – no appellable error demonstrated – appeal dismissed

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28 July 2023

Rahimi v Pamir Tiling Services Pty Ltd [2023] ACTSC 201

CIVIL LAW – consent judgment entered – personal injury – workers compensation – first defendant held insurance policy – insurer declined to indemnify defendant – Workers Compensation Default Insurance Fund Manager joined as second defendant to proceedings

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28 July 2023

DPP v Austin (No 4) [2023] ACTSC 200

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sexual offence proceedings – no case application – whether complainant’s evidence indicates relevant act was performed by complainant rather than accused – application refused

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27 July 2023

Kuol v Pruckner (No 3) [2023] ACTSC 177

CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – second breach of suspended sentence and Good Behaviour Order – demonstrated insight into offending – appellant displayed confusion regarding terms of Family Violence Order – appellant resentenced

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27 July 2023

R v White (No 3) [2021] ACTSC 307

CRIMINAL LAW – APPLICATION – Application to discharge jury member – Application to dismiss Count 1

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26 July 2023

R v White (No 2) [2021] ACTSC 302

CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application to adduce evidence – perjury – telephone calls four years after events – relevance – prejudice

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26 July 2023

R v White [2021] ACTSC 126

CRIMINAL LAW – EVIDENCE – Pre-Trial Application – tendency  – derived from normal relations between partners

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24 July 2023

DPP v Calhoun (a pseudonym) [2023] ACTSC 189 (SCC 1 of 2023; SCC 2 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – young offender – culpable driving causing death – aggravated robbery – attempted theft – culpable driving offence in the high-range of objective seriousness – aggravated robbery and attempted theft offences in the mid-range of objective seriousness

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – prosecution case overwhelmingly strong for purposes of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) because of admissions made by offender – no substantial reduction of sentence available under s 35 – whether reductions available under s 36 because of admissions – reduction available under s 36 – combined discount under ss 35 and 36 of 25 percent

The Supreme Court has sentenced a young offender to three years and 10 months’ imprisonment, to be suspended after a period of 24 months.

The offender pleaded guilty to offences arising from two series of offending, including culpable driving cause death, attempted theft and aggravated robbery. The offences were in the high and mid-range of objective seriousness.

The Court considered the application of ss 35 and 36 of the Crimes (Sentencing) Act 2005 (ACT), where the prosecution case was overwhelmingly strong because of admissions made by the offender. A reduction in sentence was available under s 36 because of the admissions.

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24 July 2023

DPP v Crutchett [2023] ACTSC 193 (SCC 47 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – where offender threw can into fire – lower range of objective seriousness – alcohol abuse disorder – pleas of guilty – remorse – suspended sentence imposed – good behaviour order imposed

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21 July 2023

Lyngstad v Cox [2023] ACTSC 192

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – failure of sentencing magistrate to apply discount for guilty plea – appeal allowed – re-exercise of sentencing discretion – backdated sentence imposed

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20 July 2023

R v Carberry; R v Deng; Carberry v The King [2023] ACTCA 32

APPEAL – CRIMINAL LAW – Prosecution appeals against sentence – arson – offences committed in custody – whether sentencing judge failed to consider s 35(4) of the Crimes (Sentencing) Act 2005 – whether sentences manifestly inadequate

APPEAL – CRIMINAL LAW – Offender appeal against sentence – aggravated robbery – whether sentencing judge mistook the facts – consideration of power to vary sentence where orders pronounced but not recorded

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Application for adjournment of appeal hearing – where adjournment sought by offender to consider evidence from civil proceeding about conditions in custody

The Court of Appeal has allowed a prosecution appeal against sentence for co-offenders, finding the sentence was manifestly inadequate in respect of sentences for arson committed while in custody. The Court of Appeal resentenced the offenders, increasing the sentence in respect of the arson offences. The offender appeal against sentence was dismissed. An application for adjournment was made orally at the hearing and was refused. The Court gave reasons for this including that the benefits to the offender of granting an adjournment were uncertain, and instructions and evidence in relation to the conditions of detention could have been obtained prior to the sentence hearing.

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20 July 2023

Fair Trading v Bowes Street Developments Pty Ltd (No 2) [2023] ACTSC 168

EVIDENCE – PRIVILEGE – Parliamentary Privilege – whether parliamentary materials cannot be tendered pursuant to s 16(3)(c) of the Parliamentary Privilege Act 1987 – whether the Court would draw or be invited to draw an inference or conclusion from anything forming part of proceedings in Parliament – tender of documents allowed

The Supreme Court has admitted parliamentary material into evidence, in the context of determining whether or not defendants had “reasonable grounds” for making certain representations whilst advertising residential units for sale in Woden, ACT. The parliamentary material admitted included extracts of Hansard, tabled budget papers, a report of a Commonwealth Joint Committee and associated submissions to that Committee. The Court found that it would not be asked to draw inferences or conclusions from the parliamentary material and therefore the material was not tendered for a purpose in s 16(3) of the Parliamentary Privileges Act.

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19 July 2023

Jayasekara v Homegrown Me Pty Ltd [2023] ACTSC 159

Jayasekara v Homegrown Me Pty Ltd
Dassanayaka v Homegrown Me Pty Ltd
Polgolla v Homegrown Me Pty Ltd
Rathnayake v Homegrown Me Pty Ltd

CORPORATIONS – application for leave to proceed against a company in liquidation pursuant to s 471B of the Corporations Act 2001 (Cth) – relevant principles to be applied – whether there is a substantial question to be tried – whether the action would interfere with the orderly winding up – whether the action would serve any sufficient purpose – whether the action would have any adverse effect – whether to impose any conditions in the event leave is granted

The Supreme Court has allowed an application, brought by the first defendant, to proceed against a third party in administration pursuant to s 471B of the Corporations Act 2001 (Cth). Section 471B says that when a company is being wound up, a proceeding against that company is stayed until the Court grants leave. The Court, having been satisfied, amongst other things, there was a serious question to be tried and the action would not interfere with the orderly winding up or have any adverse effect upon the party and its shareholders, granted leave, subject to appropriate conditions, to proceed against the company in administration.

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19 July 2023

Meas (by his litigation guardian Adcock) v Tipping [2023] ACTSC 187

DAMAGES – PERSONAL INJURY – Where defendant conceded liability for damages arising from motor vehicle accident – where plaintiff was an infant at time of accident – where plaintiff suffered serious bodily injuries and brain injury – assessment of non-economic loss under s 99 of Civil Law (Wrongs) Act 2002 (ACT) – assessment of future loss of earnings – assessment of future out of pocket expenses – assessment of past and future attendant care costs – whether need for financial management services caused by accident

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19 July 2023

Czaplinksi v Collette [2023] ACTSC 155

PRACTICE AND PROCEDURE – expert evidence – application by the first and second defendants for witnesses to give expert evidence by audiovisual link or telephone –  application granted in part –  interests of justice require evidence of some witnesses to be given in person

The Supreme Court has granted, in part, the defendants’ application for eight expert witnesses to give evidence at hearing by audiovisual link. Two of the eight expert witnesses will still be required to give evidence in person. The Court found that the interests of justice required those two witnesses to give evidence in person considering the significance of the issues to be addressed by them as it would give the Court the best opportunity to assess their evidence and the plaintiff the fairest opportunity to challenge the evidence. The Court further found that as the witnesses would need to be directed to written materials and write on those materials to convey their evidence, examination could not be conducted efficiently if the witnesses were to give evidence remotely.

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19 July 2023

I.C. Formwork Services Pty Limited v Moir [2023] ACTCA 31

Judgment summary

APPEALS – WORKERS COMPENSATION – Substantive law applicable to determine the claim for damages – “State or Territory of connection” – application of employment connection test in s 36B(3) of the Workers Compensation Act 1951 (ACT) – whether the worker was “usually based” in the ACT

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19 July 2023

In the Estate of Wilson: Application for Executor’s Commission [2023] ACTSC 186

WILLS, PROBATE & ADMINISTRATION – Executors – claim for commission – s 70 of the Administration and Probate Act 1929 (ACT) – discretion of the Court – whether the evidence establishes that the responsibility, anxiety and worry of administering the estate is beyond what would ordinarily be required – whether the task of administering an estate is onerous – office of executor is prima facie a gratuitous one – application dismissed

The Supreme Court has refused an application for an administrator to seek an order allowing him to be paid a commission out of the assets of an estate. The Court considered, on the available evidence, the responsibility, anxiety and worry of administering the estate was not beyond what would ordinarily be required of an executor/administrator. The Court confirmed the office of executor is prima facie a gratuitous one and the entitlement to commission is an exception rather than the rule.

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19 July 2023

Antony v Hammon [2023] ACTSC 164

CIVIL LAW – INTERLOCUTORY APPLICATION – Application to vacate hearing date – where plaintiff had failed to attend medico-legal appointments – application granted

The Supreme Court has allowed an application, brought by the respondent, to vacate a hearing date. The application was made due to the plaintiff failing to attend multiple medico-legal appointments. Due to the fact a report from the medico-legal expert could not be obtained before the commencement of the hearing date, the Court granted the application. The Court observed that if the plaintiff had not attended her most recent medico-legal appointment, the Court was minded to list the matter for the plaintiff to show cause why her proceeding ought not be dismissed for failing to participate in Court processes.

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18 July 2023

DPP v Page [2023] ACTSC 176 (SCC 46 of 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – where offender has suffered serious brain injury since offence – Good Behaviour Order imposed

The Supreme Court has sentenced an offender for 25 offences of obtaining property by deception committed in 2011. The offender used a fuel card obtained in the course of his employment at a service station to fraudulently purchase fuel and oil. Some 10 years later, in 2022, the offender handed himself in to ACT Police after suffering a brain injury due to an assault, which resulted significant cognitive and physical impairment. The offender was sentenced to cumulative good behaviour orders, which will expire on 30 November 2025.

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18 July 2023

DPP v Stasinos [2023] ACTSC 179 (SCC 52 of 2023; SCC 161 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – aggravated burglary – assault occasioning actual bodily harm – damage property – guilty plea – significant period spent in custody before sentence – prospects of reform dependent on drug and alcohol rehabilitation – shorter non-parole period imposed to promote rehabilitation

The ACT Supreme Court has sentenced an offender to 20 months’ imprisonment with a non-parole period of 10 months.  The offender had committed aggravated burglary, in the course of which two assaults occurred, one occasioning actual bodily harm.  Earlier in the morning of those offences being committed, the offender had caused damage to a separate property.   The Court took into account the offender’s time in custody before sentence, and his efforts in seeking rehabilitation interstate in a formal rehabilitation program.

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18 July 2023

Belovic v Calvary Healthcare ACT Limited [2023] ACTSC 90

CIVIL LAW – INTERLOCUTORY APPLICATION – Application to remedy non-compliance – application to proceed with Originating Claim despite non-compliance – medical negligence claim – whether the notice of claim complied with temporal requirements – whether delay adequately explained – where notice of claim was adequately particularised – whether the Court should authorise the claimant to proceed with the claim – where proceedings have urgency

The Supreme Court has authorised a plaintiff in a medical negligence claim to proceed with their claim, even though the notice of claim was outside of the time restrictions imposed by the Civil Law (Wrongs) Act 2002 (ACT).

The Court noted that, in medical negligence proceedings, for legitimate reasons, a plaintiff may be forced to choose between giving an inadequate notice of claim within the prescribed period of time or giving an adequate notice of claim out of time.

In this case, the plaintiff provided a delayed notice of claim which explained that the lateness was due to uncertainty as to whether a claim existed until an expert medical report was received. The defendant did not accept the delay as reasonable and accordingly the plaintiff brought the interlocutory application seeking either a declaration that the notice was compliant or authorisation to proceed despite the default.

The Court held that the notice was non-compliant and that this could not be remedied but instead authorised the proceedings to continue.

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18 July 2023

Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30

BUILDING AND CONSTRUCTION – PAYMENT CLAIM – Allegation that payment claim under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) is invalid where it is entirely referrable to work already the subject of a previous payment claim – absence of contractual regime between the parties for timing of progress claims – whether a party which has made a payment claim under s 15 of the Act may submit a further payment claim for the same contractor work relying on a new reference date – it can – cross-appeal dismissed

The Court of Appeal has dismissed a cross-appeal brought by Nova Builders Pty Ltd with respect to payment claims brought against it by Civil & Civic Corporation under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). Nova Builders contended that the judge below erred by failing to accept that the payment claims were invalid because they were entirely referrable to work already the subject of a previous payment claim.

It was held that the construction urged by Nova Builders was not consistent with the authorities and therefore the appeal was dismissed.

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13 July 2023

R v Dowden-Carlisle [2023] ACTSC 169 (SCC 163 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment & Punishment – Sentence – murder – use of knife in a public place – young offender – prior criminal history – breaches of conditional liberty – childhood ADHD – drug and alcohol dependence – contemporaneous sentencing practices – contrition

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11 July 2023

In the matter of the adoption of XAL [2023] ACTSC 175

ADOPTION – DISPENSATION WITH CONSENT – Application to dispense with requirement for consent of birth parent to adoption of young person by her foster carers – whether dispensation necessary in the best interests of the young person – where child has been residing with the same foster carers for 6 years – where no realistic prospect of young person establishing any relationship with birth parents – dispensation order made

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11 July 2023

Agostino v DPP [2023] ACTSC 121

CRIMINAL – BAIL – Application for bail pending appeal from Magistrates Court appeal – prospects of success appear remote – application dismissed

The Supreme Court has dismissed an application by Aubrey Agostino for bail pending his appeal on five sentences imposed by a magistrate on 30 March 2023. His sole ground of appeal is that the individual sentences are manifestly excessive. His application alleges that he is entitled to bail due to “special or exceptional circumstances”. The court found that the appeal has remote prospects of success and so found that there did not exist special or exceptional circumstances. The application was therefore dismissed.

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11 July 2023

Kilby v Carey [2023] ACTSC 119

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – allegation of manifest excess and error in consideration of totality principle – offences of assault occasioning actual bodily harm and choking – appeal dismissed

The Supreme Court has dismissed an appeal from the Magistrates Court. The appeal concerned sentences imposed by the Magistrates Court in relation to offences of actual bodily harm and choking. The structure of the sentence involved some level of concurrency, but none for offending taking place on different dates. It was alleged that this constituted an error of the magistrate. It was also alleged that the sentence was manifestly excessive. Both of the grounds of appeal were dismissed.

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11 July 2023

DPP v Myers (a pseudonym) [2023] ACTSC 142 (SCC 27 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – various offences of incest, produce child abuse material and maintain sexual relationship committed against offender’s children – principal victim aged between 20 and 27 months – further offences of possess child abuse material and using a carriage service to access child abuse material – offence of maintaining sexual relationship above the mid-range of objective seriousness – other offences spanning from low-range to mid-range – early plea of guilty – finding that there is an overwhelmingly strong prosecution case – no significant discount permitted – no criminal history – sentence of imprisonment imposed

The Supreme Court has sentenced Samuel Myers (a pseudonym) to 14 years and five months’ imprisonment for various child sex offences. The offences involved the possession of child abuse material and maintaining a sexual relationship with his daughter, then aged between 20 and 27 months at the time of the offending. Other offending also involved the presence of his son during the offending committed against his daughter. His son was then aged 3 years and nine months old.

The offending spanned from being in the low range of objective seriousness to being above the mid‑range of objective seriousness. The offender has no criminal history and entered an early plea of guilty. A sentence of 14 years and five months’ imprisonment was imposed, with a non-parole period of eight years and eight months.

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11 July 2023

Director of Public Prosecutions v O’Connell (No 2) [2023] ACTSC 136

CRIMINAL LAW – CRIMINAL PROCEDURE – application for a view of site of alleged offending – s 53 of the Evidence Act 2011 (ACT) – procedures to be adopted in view

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11 July 2023

Director of Public Prosecutions v O’Connell (No 4) [2023] ACTSC 173

CRIMINAL LAW – whether manslaughter on basis of criminal negligence as well as unlawful and dangerous act should be left to jury – whether unfairness arise if manslaughter by criminal negligence left to jury

Decision:  I decline to direct the jury that it would be open to them to return a verdict of manslaughter by criminal negligence.

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11 July 2023

Powell v Australian Sports Commission [2023] ACTSC 172

CIVIL PRACTICE AND PROCEDURES – Application for leave to disclose protected confidences (subpoenas to produce documents) – s 79D of the Evidence (Miscellaneous Provisions) Act (ACT) – no dispute as to legitimate forensic purpose of subpoenas – application granted

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11 July 2023

O’Toole & Anor v M Johnson Building Pty Ltd (No 2) [2023] ACTSC 171

CIVIL LAW – BUILDING AND CONSTRUCTION – apportionment – costs

The amount payable by the 1st defendant to the plaintiffs is not calculated by deducting settlement sum paid by 2nd defendant, which was inclusive of costs, from the total damages. The amount payable by the 1st defendant is calculated by reference to the damages it caused.

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7 July 2023

In the estate of Pryor [2023] ACTSC 170

SUCCESSION – EXECUTORS AND ADMINISTRATORS – Equitable ademption – whether gift given shortly before death adeemed legacy in will – whether testator intended later gift to be in substitution for legacy – where gift given through company owned by testator – where purpose of gift and legacy not identical – where surrounding circumstances indicated no intention by testator that the donation inter vivos bring about an ademption of the legacy under the will – no ademption

The Supreme Court has dismissed an application brought by an Executor administering an estate, concerning a donation of $2 million made to Wesley College in Sydney.  The donation was made by Mr and Mrs Pryor through their corporate vehicle.  Shortly after the donation was made, the couple died and their wills left part of their residual estate to Wesley College.  The question was whether the donation made while the couple were alive constituted a partial ademption of the legacy left in their wills.

The Court found that there was no ademption, as the purpose of the gift and of the legacy were not the same and there was no intention from the surrounding circumstances of the gift that it was to be in substitution for the legacy specified in the will.

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6 July 2023

Director of Public Prosecutions v Holder (No 2) [2023] ACTSC 167 (SCC 81 of 2022; SCC 82 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dangerous driving – drive at police – where risk to public and police – application of Verdins principles – sentencing purposes – rehabilitation – community protection – where ongoing rehabilitation achieves community protection – Intensive Correction Order – whether power to order concurrent automatic periods of disqualification – Smith v Stivala not followed

The Supreme Court has sentenced an offender for dangerous driving offences and driving at a police officer. The offending engaged in was serious in nature and occurred over the course of one continuous period. The offender had an extensive history of illicit substance abuse, and had also been diagnosed with a number of mental illnesses. Subsequent to the offending, the offender’s infant child died as a result of SIDS. There was considerable evidence of the offender’s ongoing and proactive engagement with several community organisations and strong commitment to seeking support throughout the period subsequent to the death of her child. The Court was satisfied that there was an exceptional and powerful case of rehabilitation. The offender was ultimately sentenced to 3 years imprisonment to be served by way of Intensive Corrections Order.

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6 July 2023

Ezekiel-Hart v Council of the Law Society of the ACT [2023] ACTCA 29

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Where single judge of the Court refused leave to appeal from a decision of the Appeal Tribunal of the ACT Civil and Administrative Tribunal – application for leave to appeal from the refusal of leave to appeal – whether proposed grounds of appeal identify any arguable error in the primary judgment.

The Court of Appeal has refused leave for an applicant to appeal a decision of the Supreme Court. The applicant sought to appeal a decision which refused leave to appeal from a decision of the Appeal Tribunal of the ACT Civil and Administrative Tribunal regarding alleged racially motivated delay by the Council of the Law Society of the ACT in determining whether to grant a practising certificate.

The Court, noting the caution that is required where leave to appeal is sought from an interlocutory decision which finalises the prosecution of a complaint, nonetheless found that none of the proposed grounds of appeal disclosed arguable error in the primary judgment.

The Court accordingly refused leave to appeal and ordered the applicant to pay the costs of the proceedings.

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5 July 2023

Director of Public Prosecutions v Rohrlach [2023] ACTSC 166

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of choking – where victims were children – where conduct was of lower objective seriousness – where offender had presence of childhood trauma and social disadvantage – suspended sentence imposed

The ACT Supreme Court has sentenced an offender to a period of imprisonment of 8 months and 1 day, with the sentence to be almost wholly suspended on the condition that the offender enter a good behaviour order.  The offender had placed a child in a headlock and had grabbed another child’s neck with his hand.  Whilst the offences were serious, they were of a lower objective seriousness compared with other cases of this type. The offender had a history of childhood trauma and disadvantage that he had been seeking to address through community programs – this is to continue under the good behaviour order.

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5 July 2023

Mayfair Build Pty Ltd v Sanoubane [2023] ACTSC 148

CAVEATS – Application to restrain removal of caveat – where building contract created a charge on the land to secure moneys owing under building contract – dispute between builder and owners as to whether any amount owing – whether there is a serious issue to be tried as to the amount owed – whether the balance of convenience favours restraining the removal of the caveat – where no proceedings for the debt have been brought – where parties did not address the issue of payment into court as security for the amount claimed

The Supreme Court has allowed an application which sought to keep a caveat over land. The caveat was lodged by the builders of a residential property when the owners of that property failed to pay an invoice for a structural installation that was deemed to be required to support the construction. The owners disputed that the contract had not been terminated and that they were liable for the outstanding sum claimed by the builders. The owners hence sought to remove the caveat to continue the construction, which led to the builders making the application to prevent this.

The Court found that there was an arguable question to be tried in relation to the amount the builders claimed was owed. The Court also found there was insufficient evidence that demonstrated the owner’s inconvenience or a claim that the builders had made misrepresentations.

As such, the Court did not remove the caveat and allowed parties to make further submissions as to its future.

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3 July 2023

Tong v Tong [2023] ACTSC 163

SUCCESSION – FAMILY PROVISION – application by widow for family provision – whether testator’s will failed to make adequate provision for the proper maintenance of his widow and four children – where testator was married for over 15 years – where testator received an advance death benefit of over $1 million and distributed majority of benefit and jointly owned financial assets to his siblings in the context of foreshadowed divorce proceedings shortly before he died – family provision made out of the will.

WILLS AND ESTATES – UNDUE INFLUENCE – whether testamentary gifts to testator’s siblings should be set aside on the basis of undue influence – where testator in advanced stages of cancer – where brother drafted the will executed by the testator and no independent solicitor involved or advice taken – whether testator’s free will was overborne.

EQUITY – UNDUE INFLUENCE – whether transfers of real property and large financial sums to siblings were a result of undue influence – whether a relationship of ascendancy existed in respect of the testator’s brother – whether presumption of undue influence by relationship of ascendency rebutted – where gift of such large proportion as to be undue and no independent legal or accounting advice received – transaction set aside.

TRUSTS – CONSTRUCTIVE TRUSTS – whether properties registered in the names of family members of the deceased (the mother and sister) were held on constructive trust for estate or child beneficiaries.

The Supreme Court has determined a number of claims arising out of the death of a man in 2019.  The claims were brought by the widow of the deceased and their four children.  Before he died, the man had revised his will to exclude his widow from any benefit apart from the man’s superannuation pension and dealt with property and monetary assets in a way that transferred them to two of his siblings.  The widow and children made a claim for family provision and sought to set aside the gifts made.  They were successful in establishing that one of the gifts should be set aside for undue influence, one of the real estate assets was held on constructive trust, and that family provision ought to be made for the widow.

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30 June 2023

In the estate of Caggiano [2023] ACTSC 156

WILLS AND ESTATES – application to remove existing executor and appoint new administrator – administrator appointed

The Supreme Court has allowed an application to remove an existing executor of a will and appoint a new administrator. The application was made due to the existing executor failing to complete her duties by not transferring the title of the family home out of the deceased’s name. The existing executor then died and appointed her three sons as her executors. The three sons, by consent, sought an order to remove the existing executor to allow one of the sons to complete the duties of the existing executor. The Court granted the application on the basis it was satisfied that the existing executor was incapable of acting in her office.

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30 June 2023

DPP v Roberts (No 2) [2023] ACTSC 146 (SCC 208 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary by joint commission – co-offender shot victim twice from close range – no acceptance of responsibility or remorse – history of illicit substance and alcohol use – guarded prospects of rehabilitation – sentence of imprisonment imposed – non-parole period set so that the offender is currently eligible for parole

The Supreme Court has sentenced Bradley Roberts to 3 years and 3 months imprisonment for the offence of aggravated robbery.

Mr Roberts was found guilty by a jury in December 2022. The offending occurred on 11 March 2021, when Mr Roberts and two co-offenders entered the home of a woman known to them in Spence. Co-offender Sugimatatihuna Mena shot the victim twice from close range.

The court considered Mr Roberts’ prospects of rehabilitation to be guarded. He has not demonstrated remorse or taken responsibility for the offending. A non-parole period of 60 percent of the head sentence was set, which made Mr Roberts eligible for parole as at the date of the sentence.

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30 June 2023

DPP v Parlov [2023] ACTSC 147 (SCC 205 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated burglary by joint commission – offender granted bail and proceedings adjourned to allow offender to participate in residential rehabilitation program –  appropriate for offender to continue with rehabilitation in the community –  where imposition of a partially suspended sentence would require setting of non parole period and further period in custody – offender previously granted parole in relation to an earlier sentence – period of imprisonment wholly suspended taking into account but not including pre-sentence custody

The Supreme Court has sentenced Rebecca Parlov to 2 years, 6 months and 8 days imprisonment for the offence of aggravated burglary.

The aggravated burglary occurred on 11 March 2021, when Ms Parlov and two co-offenders entered the home of a woman known to them in Spence. Co-offender Sugimatatihuna Mena shot the victim twice from close range.

Ms Parlov was granted bail prior to sentencing to allow her to participate in a residential rehabilitation program. Upon successfully completing that program, Ms Parlov was sentenced to the above term of imprisonment. That term takes into account but does not include 272 days of pre-sentence custody and is to be suspended upon entering a good behaviour order.

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30 June 2023

DPP v Ayoub (No 5) [2023] ACTSC 140 (SCC 57 of 2021; SCC 58 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – inflicting actual bodily harm with intent to engage in sexual intercourse – sexual intercourse without consent – common assault – victim was a sex worker in a brothel – offences in mid-range of objective seriousness – guarded prospects of rehabilitation – offender has criminal history but no prior sex offending – sentences of imprisonment imposed and partially suspended

The Supreme Court has sentenced Joseph Ayoub to 2 years and 6 months’ imprisonment for the offences of causing actual bodily harm with intent to engage in sexual intercourse, sexual intercourse without consent and common assault.

Mr Ayoub was found guilty by a jury in November 2022. The offences relate to an incident that occurred at a brothel in Mitchell in September 2020. The victim was a sex worker at that brothel. The offender assaulted the worker after failing to comply with a sexual health check, which was a requirement of the brothel.

The court held that the charges were in the mid-range of objective seriousness. The offender has a criminal history, but that history does not involve any prior sex offending. Having regard to the offender’s history, the court considered the offender’s prospects of rehabilitation to be guarded.  The sentence was partially suspended after having served 18 months and 21 days in custody and upon entering an undertaking to comply with his good behaviour obligations.

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29 June 2023

De Andrade v Da Vesi Construction Group Pty Ltd [2023] ACTSC 161

APPEAL – APPEAL FROM MAGISTRATES COURT – Application for leave to appeal out of time – where applicant is bankrupt – applicant lacks standing to bring application – application dismissed

The Supreme Court has dismissed an application for leave to appeal out of time as the applicant was bankrupt and did not have standing to bring the application

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29 June 2023

Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – joinder application – whether parties capable of being joined to the proceedings in circumstances where the proposed plaintiffs are companies that have been de-registered or are in liquidation – where joinder of parties otherwise not necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding – leave refused

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – strike out application – whether statement of claim discloses reasonable cause of action – where pleading fails to comply with the procedural rules to such an extent that it fails to expose the case the party intends to run – whether leave to re-plead should be given – where causes of action sufficiently disclosed – leave to re-plead granted

The Supreme Court has determined three interlocutory applications brought in two separate proceedings.  Two of the applications were brought by the plaintiff, seeking to join a number of corporate entities as plaintiffs to each proceeding, as well as leave for those companies to be represented by someone other than a solicitor.  The defendant in each proceeding (the Commonwealth of Australia and the University of Canberra) each opposed the application. Three of the entities could not be added as they were deregistered.  A further three companies were in liquidation.  The Court refused to give leave to bring any derivative action on behalf of those companies because there was no solid foundation for any claims proposed, and practical considerations did not support those entities being joined.

One further proposed corporate plaintiff could not be added as it was a registered business name with no legal personality. Only one of the corporate plaintiffs was capable of bringing a proceeding but due to the lack of any reasonable cause of action being disclosed for that entity, the Court held that joinder was not necessary to resolve the issues presently in dispute. The two applications were dismissed accordingly.

The Court also allowed in part an application bought by the University of Canberra seeking to strike out the statement of claim brought against it. The Court struck out the statement of claim in its entirety, but as there were causes of action that were not “clearly untenable”, it was appropriate to give the plaintiff an opportunity to replead.

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29 June 2023

DPP v Cummins [2023] ACTSC 127 (SCC 183 of 2022; SCC 184 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in cocaine – money laundering – trafficking offence in the mid-range of objective seriousness – money laundering offence below the mid-range of objective seriousness – history of illicit substance use – assessed as unsuitable for community service work or intensive correction order – sentence of imprisonment imposed

The Supreme Court has sentenced Taran Lee Cummins to 23 months imprisonment for trafficking in cocaine, and 6 and a half months for money laundering.

On 23 July 2021 police executed a search warrant at the offender’s residence and found approximately 139 g of cocaine as well as other indicia of trafficking. During the execution of the warrant police also located $6460 in a bumbag. The court held that the objective seriousness of the trafficking offence was in the mid-range of objective seriousness, and the money laundering charge was below the mid-range.

The offender was assessed as unsuitable for an intensive correction order due to an unsatisfactory history of non-compliance with community-based orders. The current sentences are to be served in full-time custody. The court set a non-parole period of 9 months.

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29 June 2023

R v Carberry [2023] ACTCA 22

CRIMINAL LAW – APPEAL – Application for stay of sentence and bail pending appeal – applicant seeks to attend funeral of deceased uncle – no prospects of sentence being reduced on appeal so as to expire prior to being released on bail – applications dismissed

The Court of Appeal has dismissed an application for a stay of sentence and bail pending appeal. The respondent/cross-appellant sought bail in order to allow him to attend the funeral of his uncle on the next day. The Court of Appeal’s jurisdiction to hear the applications was enlivened because there are appeals on foot in relation to the sentencing orders made by the Supreme Court in April 2022. Both the Crown and Mr Carberry have appealed against those orders.

The Court of Appeal held that notwithstanding the significant compassionate factors, there were no prospects of Mr Carberry’s sentence being reduced on appeal so as to expire prior to him being able to be released on bail. The applications were dismissed.

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28 June 2023

R v McLeish (No 3) [2023] ACTSC 107 (SCC 188 of 2021; SCC 189 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour order – failure to comply with community service work condition – failure to engage with ACT Corrective Services – good behaviour order cancelled – offender resentenced to period of imprisonment

The Supreme Court has cancelled a good behaviour order and resentenced the offender, Mr Mark McLeish.

In April 2022 the court sentenced Mr McLeish for the offence of making a demand with a threat to endanger health. He was sentenced to 10 months’ imprisonment, to be suspended after 56 days upon entering a good behaviour order with additional conditions. Those conditions required Mr McLeish to report to ACT Community Corrections and perform 100 hours of community service within 12 months.

Breach proceedings were commenced against Mr McLeish after he failed to perform the community service condition and failed to engage with ACT Community Corrections. The offender was resentenced, requiring him to spend a further 11 days of custody and enter into a further GBO for a period of 12 months.

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28 June 2023

R v Palmer [2023] ACTCA 24

PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Amendment to orders of the Court of Appeal pursuant to r 6906 – where orders of the court erroneously recorded on bench sheet – inconsistency between orders recorded in published judgment and orders recorded on bench sheet – narrative text from judgment erroneously recorded as redundant and inaccurate orders on bench sheet – bench sheet was subsequently amended without explanation – orders made to amend the documents recording terms of orders so as to reflect the orders that were pronounced and the intention of the court

On 5 December 2019 the Court of Appeal published a judgment which included a resentence of Mr Palmer. Those orders were recorded on a bench sheet (which is the court’s record of proceedings) by the associate. The orders as recorded on the bench sheet had erroneously included additional orders which were derived from the narrative text of the judgment. Those additional orders contained dates which were incorrect. The orders were subsequently amended in chambers on two occasions, without an explanation recorded for doing so. The combined effect of those unexplained amendments was to move the start date of Mr Palmer’s sentence one year earlier and hence increase the overall length of the aggregate sentence by one year.

Justice Mossop, sitting as a single judge of the Court of Appeal, made orders to amend the orders of the Court of Appeal, so as to reflect the orders that were pronounced and the intention of the court at the time of the delivery of the judgment in the matter.

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28 June 2023

Dann by his litigation guardian Sullivan v Commonwealth of Australia [2023] ACTSC 137

NEGLIGENCE – SETTLEMENT - Plaintiff with a legal disability – settlement approved – where proposed trustee is the wife of plaintiff and appointed carer holding an enduring power of attorney – order for private trustee made

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27 June 2023

Zubary v SRT Formwork Pty Ltd [2023] ACTSC 152

PRACTICE AND PROCEDURE – application by second defendant for leave to file and serve a contribution notice on the first defendant – whether granting leave would prejudice the hearing date – whether conflict of interest for solicitors acting for party in relation to both insured and uninsured risks

The Supreme Court has granted leave to the second defendant to file and serve a contribution notice on the first defendant in a personal injury claim, finding that there would be no prejudice to the hearing date. The contribution notice was sought by the second defendant as it alleges the first defendant was required under their contract to take out certain insurance to cover the second defendant in relation to accidents such as which occurred to the plaintiff and to indemnify the second defendant. The first defendant opposed the application asserting that its solicitors would place them in a position of a conflict in acting for the first defendant in relation to both the insured and uninsured risks, and also claimed potential delays to the proceedings if the application was granted. Though the conflict claim was not maintained at hearing, the Supreme Court commented that there was considerable doubt that such a conflict existed, and found potential delays did not warrant refusal of the application.

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27 June 2023

Stanley (a pseudonym) v Commonwealth of Australia [2023] ACTSC 157

CIVIL PRACTICE AND PROCEDURE – PUBLIC INTEREST IMMUNITY – Family violence communications privilege – Application for leave to disclose protected confidences in and for the purposes of the proceedings – where leave is sought nunc pro tunc – consideration of the statutory requirement for leave for different purposes at different stages of the proceedings – outcome of preliminary examination of protected confidences

The Supreme Court has granted an application for leave to disclose protected confidences in and for the purposes of civil proceedings.

The plaintiff in the proceedings claims damages against the defendants for injury allegedly arising from the actions of the Australian Federal Police when they were responding to suspected family violence. The defendants breached the statutory requirement to obtain Court leave to compel the production and use of protected confidences, namely the plaintiff’s mental health records, and applied to have the leave granted retrospectively.

The Court found the defendants had a legitimate forensic purpose in seeking the production of these documents and granted leave to access and use the mental health records in the proceedings. The Court declined to determine admissibility, holding this is a question for the trial judge. The Court also discussed the importance of the legislative scheme which aims to protect vulnerable witnesses by creating a qualified immunity over their counselling communications. The legislation requires leave to be granted separately when parties seek to compel the production of, to inspect and make use of, and to admit into evidence any protected confidence.

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26 June 2023

DPP v Chen [2023] ACTSC 154 (SCC 102 of 2022)

CRIMINAL LAW – Judgment and Punishment – Sentence – threat to inflict grievous bodily harm – whether non-conviction order should be made

The Supreme Court has sentenced an offender to an 18-month good behaviour order for an offence of threatening to inflict grievous bodily harm. The victim was a former employee of the offender’s company and the offender threatened to remove his fingers if he engaged in conduct that was thought to be adverse to the offender’s small business. The Court imposed no conviction, holding that there were compelling circumstances for taking that course, including the low objective seriousness of the offence, the offender’s good character and lack of criminal antecedents, the high prospects of rehabilitation and the availability of other means to recognise the harm done to the victim and express the court’s denunciation of the conduct.

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26 June 2023

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28

APPEAL – APPLICATION IN PROCEEDING – Appeal against order made refusing appellant leave to represent company under r 30(4) of the Court Procedures Rules 2006 (ACT) – Application by respondent that appeal be struck out as incompetent – Self-represented appellant – Whether appeal is incompetent – Application dismissed with costs

The Supreme Court has dismissed an application in proceeding which sought to dismiss the appellant’s notice of appeal, on the basis it was incompetent, against an order made refusing the appellant leave to represent a company. The Supreme Court found that although the appeal did not comply with certain rules in the Court Procedure Rules 2006 (ACT), the question of competency is not concerned with non-compliance of the Rules or drafting deficiencies. The Court granted leave to the appellant to file an amended notice of appeal and to the respondent to file an amended application and ordered the respondent to pay the appellant’s costs.

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23 June 2023

Canberra Building and Maintenance Pty Ltd v WNA Construction Pty Ltd [2023] ACTSC 153

APPEAL – Building & Construction – Payment claim under the Building and Construction Industry (Security of Payment) Act 2009 – whether payment claim was served – whether payment claim contained adequate information about the construction works

The Supreme Court has upheld an appeal from a Magistrates Court decision that found a payment claim issued by the appellant under the Building and Construction Industry (Security of Payments) Act 2009 (ACT) was invalid. The Supreme Court found that the learned Magistrate erred in finding that the payment claim did not adequately detail the construction works to which it related and was not served on the respondent. The payment claim was found to be valid under the Act and judgment was ordered in favour of the appellant in the sum of $53,504.90 (the amount sought in the payment claim), together with interest and costs.

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23 June 2023

Calvary Health Care ACT Ltd v Australian Capital Territory [2023] ACTSCFC 1

Judgment Summary

CONSTITUTIONAL LAW – Acquisition of property – legislative power of the Legislative Assembly under the Australian Capital Territory (Self-Government) Act 1988 (Cth) does not include power to acquire property other than on just terms – interpretation of Health Infrastructure Enabling Act 2023 (ACT) which compulsorily acquires a hospital and its assets – statute containing provision requiring just terms to be provided to persons whose interests are acquired under the Act – whether stated obligation to provide just terms is enforceable – whether obligation extends to all acquisitions of property under Act – whether other terms of statute imposing obligations on person whose property is to be acquired render the acquisitions not on just terms – Act not beyond legislative power of the Legislative Assembly

STATUTORY INTERPRETATION – Acquisition of property – provision requiring just terms to be provided for acquisition of property – whether enforceable or merely exhortatory or aspirational – provision to be interpreted to give effect to purpose of legislation and maintain its validity

JURISISDICTION OF COURTS – Statutory obligations – statutory obligation to provide just terms for acquisition of property – whether provision enforceable – obligation enforceable in superior court of general jurisdiction

The Full Court provided reasons for orders that it made on 9 June 2023 dismissing an application by Calvary Health Care challenging the validity of the Health Infrastructure Enabling Act 2023 (ACT) (the Act), which would acquire the leased land upon which Calvary Hospital is run. The Act would acquire the land with a view to building a new public hospital and takes various steps including terminating the agreement for the provision of hospital services between Calvary and the Territory and allowing the Territory to enter the hospital land prior, during and after the acquisition to further the process.

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13 June 2023

In the estate of Johnson [2023] ACTSC 149

WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) – Where signature was only witnessed by one witness – Whether deceased intended document to constitute will

The Supreme Court has allowed an application to declare that a particular document, which was not executed in accordance with the formal requirements under the Wills Act 1968 (ACT), constitutes the deceased’s will. The Court granted the application having been satisfied the document purported to embody the deceased’s testamentary intension and it was the deceased’s intention for the document to operate as their will.

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13 June 2023

Tonna v Buik [2023] ACTSC 143

The Supreme Court has allowed an appeal against a finding of guilt by a magistrate. The conviction and sentence have been set aside.

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from finding of guilt - whether finding of guilt unreasonable and cannot be supported having regard to the evidence – whether magistrate erred in applying principles in Edwards v The Queen (1993) 178 CLR 193 and Liberato v The Queen (1985) 159 CLR 507 – whether magistrate took into account evidence not before the court – reasonable hypothesis consistent with innocence available on the prosecution case – factual basis for adverse credibility finding did not exist – magistrate erred in taking into account evidence not before the court – appeal allowed – conviction and sentence set aside

On 5 December 2022 a magistrate found the appellant guilty of a charge of dishonestly driving a motor vehicle without consent. The appellant appealed the finding of guilt on five separate grounds. The Supreme Court held that there was a reasonable hypothesis consistent with the appellant’s innocence, requiring the conviction and sentence to be set aside. The court also held that the magistrate erred in taking into account evidence which was not before the court, being the value of the vehicle in question. Error was also identified in the factual basis upon which the magistrate made a credibility finding adverse to the accused.

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9 June 2023

DPP v XK [2023] ACTSC 141 (SCC 43 of 2023; SCC 44 of 2023; SCC 131 of 2023)

CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated robbery – driving offences – young offender – history of disadvantage – childhood trauma – application of Bugmy principles – good prospects of rehabilitation – largely suspended sentence in recognition of offender’s youth, disadvantage and need for supervision

The Supreme Court has sentenced a young offender to a term of imprisonment for 2 years and 6 months, suspended after 3 months, for various offences including aggravated robbery and two counts of aggravated dangerous driving.

At the time of the offending, the young offender was unlicensed and had taken MDMA that day. The young offender had a history of disadvantage and childhood trauma, had engaged with rehabilitation providers, had expressed remorse and a willingness to participate in restorative justice processes and had stable employment opportunities.

The Court considered the sentencing objectives for young offenders with an emphasis on rehabilitation and determined a lengthy period of supervision under a suspended sentence was appropriate. The Court also determined that four automatic licence disqualifications attaching to the offences were able to be applied concurrently from the date of conviction.

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9 June 2023

McCloskey v Nexis Accountants Pty Ltd (No 2) [2023] ACTSC 145

CIVIL LAW – CIVIL PROCEDURE – expert evidence – application for leave to file expert report out of time – non-compliance with timelines for service of expert reports – where matter listed for hearing and no expert evidence has been filed by defendant – leave granted

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9 June 2023

Okwechime v The Queen [2023] ACTCA 25

APPEAL – CRIMINAL LAW – Appeal against conviction – whether verdict of guilty was unreasonable or cannot be supported having regard to evidence – various matters said to support plausibility of appellant’s account – where matters raised by appellant together fail to make the verdict unreasonable – appeal ground dismissed

APPEAL – CRIMINAL LAW – Leave sought pursuant to r 5531 – miscarriage of justice – whether absence of direction regarding appellant’s criminal status caused a miscarriage of justice – where appellant’s counsel at trial raised the appellant’s criminal status with the complainant in cross-examination – where appellant bound by the conduct of his counsel – leave to raise appeal ground refused

APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge erred in assessment of duration of choking offence – alleged that sentencing judge erred in finding that choking lasted for 15 seconds where such fact not established beyond reasonable doubt – where appellant’s counsel’s submissions at sentence accepted that choking lasted for 15 seconds – appeal ground dismissed

APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge erred by imposing a sentence unjustly disproportionate to the objective gravity of the offence – no specific error identified – no allegation of manifest excessiveness – appeal ground dismissed

The Court of Appeal has dismissed a conviction and sentence appeal brought by Mr Chide Okwechime. The appellant was found guilty by a jury of two counts of sexual intercourse without consent and a count of choking. He alleged that his conviction was unsupported by the evidence or unreasonable. He also sought leave to raise a ground of appeal which related to an alleged failure of the trial judge to give a direction where no issue was taken by him at trial. His appeal on sentence alleged that the sentence imposed was inconsistent with the facts, and further, that it was disproportionate to the gravity of the offence. All grounds of appeal were dismissed and leave was refused.

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9 June 2023

Smith v The Queen [2023] ACTCA 26

APPEAL – Appeal against sentence for riding in vehicle without consent, aggravated burglary, attempt to intentionally inflict grievous bodily harm, and two counts of theft – where pleas of guilty entered after jury trial commenced and evidence from victims adduced, just prior to co-offender evidence being adduced – where the appellant contends that one of the guilty pleas should be permitted to be withdrawn – where the appellant was sentenced to six years and seven months, with a non-parole period of four years – whether there was a miscarriage of justice relating to charge of attempt to intentionally inflict grievous bodily harm – whether the overall sentence was manifestly excessive – whether the sentencing judge took into account parity with the sentence imposed upon the appellant’s co-offender for common offences

The Court of Appeal has dismissed an appeal against conviction and sentence by a judge in the Supreme Court. In 2022 Robert James Smith pleaded guilty to offences of riding in a vehicle without consent, aggravated burglary, attempt to inflict grievous bodily harm and two counts of theft. Those guilty pleas were entered after a jury trial had commenced.

The appellant has appealed against his conviction on one of the counts of theft on the ground that he should be permitted to withdraw his guilty plea.  This charge of theft was charged as a joint commission offence. The Court held that the appellant’s appeal on this ground was based upon a misunderstanding, being that he could not be guilty if it was a co-offender who had physically taken the phone constituting the theft. The court held that no miscarriage of justice had occurred and the guilty plea must stand.

The appellant appealed against his sentence on the grounds of manifest excess and parity. The parity ground was directed at parity with the sentences imposed upon a co-offender for common offences. Both grounds were dismissed.

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7 June 2023

Block 27 Pty Ltd v Qursa Pty Ltd [2023] ACTSC 139

CONTRACTS – Interpretation – whether sublease is inconsistent with terms of Crown Lease – proper construction of the sublease and Crown Lease – whether there was an obligation to give consent and allow transfer – whether there was a breach of the Crown Lease

EQUITY AND TRUSTS – equity regards as done what ought to be done – application of equitable maxim to contracts – registered proprietor is a bare trustee of purchaser – whether breach of trust by consenting to transfer the sublease

The Supreme Court has dismissed a claim for relief by a Crown lessee / sublessor to declare invalid the transfer of a sublease by the sublessee over 4 car parking spaces in Dickson, ACT.

The Court found that the sublease ought to have included certain clauses as set out in the Crown Lease, those clauses were inconsistent with a clause in the sublease requiring that the sublessee procure consent from the sublessor to transfer the sublease if the clause meant that consent could be withheld. To avoid inconsistency, the proper construction of the sublease was that the sublessor's consent could never be withheld, and the clause operated as a notice provision. Alternatively, if consent could be withheld, the clause was inconsistent with those clauses from the Crown Lease, and therefore should be ignored. Relief was also declined on the ground that the consent requirement was inconsistent with the Crown lessee's / sublessor's obligations under the Crown lease, and equity will not assist a wrongdoer.

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6 June 2023

Elly Property Wright Residential Pty Ltd v Elliott [2023] ACTSC 138

CONTRACTS – Formation – Agreement – Intention to make a concluded bargain – Whether there was a concluded contract – Whether an agreement was formed to rescind a contract

AGENCY – Solicitor and client – Authority – Solicitor negotiating agreement on behalf of client – Whether solicitor had authority to bind client

The Supreme Court has dismissed an application that sought specific performance of a contract negotiated between the parties' legal representatives to rescind a contract for the sale of land. The Court found there was no evidence that the defendants' solicitor had any actual or implied authority to bind their client to any agreement. In addition, the Court found that the parties did not intend that an immediately binding agreement would come into being at the conclusion of their negotiations, but only when they signed a formal contract.

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2 June 2023

Smith v R [2023] ACTCA 23

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – error conceded in application of s 66 of the Crimes (Sentencing) Act 2005 (ACT) – global non-parole period ordered in accordance with law

The Court of Appeal has allowed an appeal against sentence, finding that the sentencing judge misapplied section 66 of the Crimes (Sentencing) Act 2005 (ACT).

Section 66 of the Crimes (Sentencing) Act applies where an offender is serving an existing sentence and the Court sentences the offender to a further term of imprisonment. Section 66 provides that the imposition of the further term of imprisonment has the effect of cancelling any non-parole period set for the existing sentence. Section 66 also requires that the sentencing judge impose a new ‘global’ non-parole period that applies to the aggregate of the existing sentence and the further term of imprisonment. In the present case, the sentencing judge imposed a non-parole period for the further term of imprisonment, and did not impose a global non-parole period as required by s 66.

The Court allowed the appeal and set aside the non-parole period. The Court imposed a new non-parole period on the overall sentence of 2 years, 11 months and 12 days. The appellant will be eligible for parole on 21 November 2023.

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1 June 2023

In the estate of Radosav Srejic [2023] ACTSC 135

WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) – Whether deceased intended document to constitute his will – Subsequent amendments to will – Application of relevant principles

The Supreme Court has allowed an application to declare that a particular document, which was not executed in accordance with the formal requirements under the Wills Act 1968 (ACT), constitutes the deceased’s will. The Court considered whether there was a document, whether the document purported to embody the deceased’s testamentary intentions and whether it was the deceased’s intention for the document to operate as their will. The Court granted the application having been satisfied of the relevant considerations.

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1 June 2023

DPP v Mitchell (No 2) [2023] ACTSC 118

CRIMINAL LAW – ADMISSIBILITY – Admissibility of victim impact statements – portions of statements challenged on the basis that challenged portions do not fall within the definition of “victim impact statement” as per s 47 of the Crimes (Sentencing) Act 2005 (ACT)– all challenged portions ruled admissible

Following objections as to admissibility by the offender, the Supreme Court has ordered that various portions of the victim impact statements tendered at the sentence hearing be admitted.

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1 June 2023

DPP v Mitchell [2023] ACTSC 117 (SCC 319 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – persistent sexual abuse of children and acts of indecency – early guilty plea – six victims – where offender abused position of authority as rock climbing coach to groom victims – offending in mid-range to upper-end of mid-range of objective seriousness – sentences of imprisonment imposed

The Supreme Court has sentenced an offender to 13 years and five months’ imprisonment (with nine years non-parole) for historical sex offences committed against six victims. The victims were 11 to 15 during the period of offending, and the offending was held as being in the mid-range to the upper-end of mid-range. The offender had no prior criminal history and entered a guilty plea at a very early stage.

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1 June 2023

EJV GRN No.1 Pty Ltd v Geocon Aspen JV Pty Ltd [2023] ACTSC 104

CIVIL LAW – BUILDING AND CONSTRUCTION – Security of payment – application for appointment of a receiver – dispute between directors resulting in deadlock of joint-venture companies – payment claims made by builder – validity of payment schedules disputed – adjudication applications made – urgent adjudication response required – interim relief sought to protect interests of joint-venture companies – receiver appointed

The Supreme Court has appointed a receiver for two joint-venture companies following an application brought by the plaintiffs, who represent one side of the joint-venture interests for both companies. The proceedings arise out of two real estate developments, each of which is being conducted by a joint-venture company.

A deadlock arose in the joint-venture company of each development following a dispute over contested payment claims made by the builder. Those payment claims are now the subject of adjudication applications under the Building and Security (Security of Payment) Act 2009 (ACT).

Those adjudications require urgent responses from the joint-venture companies. Interim relief was sought to protect the interests of the joint-venture companies by appointing a receiver with the power to take steps to advance the interests of the companies in relation to the payment claims, adjudication applications and any subsequent proceedings.

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31 May 2023

In the Estate of Woodrow: Application for Executor’s Commission [2023] ACTSC 129

WILLS, PROBATE & ADMINISTRATION – Executors – Claim for commission – s 70 of the Administration and Probate Act 1929 (ACT) – Discretion of the Court – Meaning of “just” – Evaluative judgement – Where the estate was large and required complicated administration – Whether the amount sought by the applicant was just

The Supreme Court has allowed an application for two executors to an seek an order allowing them to be paid a commission out of the assets of an estate. The Court considered that given, among other things, the complicated administration of the estate warranted a commission being granted. The Court considered that a commission based on the capital realisations, income collections and assets transferred in specie, as well as the time it took the executors to administer the estate, was a just basis for the calculation of the commission.

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31 May 2023

Nediva Pty Ltd as Trustee for the 31 Torrens Street Unit Trust [2023] ACTSC 130

JUDICIAL ADVICE – Unit Trust – application to the Supreme Court for advice under the Trustee Act – whether trustee is justified in defending ongoing proceedings in the Magistrates Court – whether costs of defending proceedings are within trustee’s indemnity – whether trustee is justified in transferring the ongoing proceedings to the Supreme Court

The Supreme Court has granted a trustee’s application for judicial advice. The judicial advice relates to ongoing proceedings in the Magistrates Court initiated by a beneficiary of the trust. The Supreme Court found that the trustee is justified in defending the proceedings and could seek indemnity for the costs associated with its defence. It was further found that the trustee is justified in seeking to transfer the proceedings to the Supreme Court.

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31 May 2023

Director of Public Prosecutions v Earle (No 2) [2023] ACTSC 134

CRIMINAL LAW – EVIDENCE – sexual offence proceedings – where counsel for the accused sought to cross-examine her as to previous consensual sexual activities with the accused – whether leave required under s 76(1) of the Evidence (Miscellaneous Provisions) Act – whether leave if required should be granted – where belief as to consent an issue in the trial

The Supreme Court has published its reasons for granting leave to the accused, Thomas Earle, to cross-examine the complainant as to previous sexual activities between her and the accused.  The parties argued that previous authorities in the ACT support the view that, under s 76 of the Evidence (Miscellaneous Provisions) Act, leave is not required to adduce evidence of sexual activities between the complainant and the accused that have occurred outside the sexual activity giving rise to the charges in the proceedings.  The Court held that, uninformed by authority, it would interpret s 76 to only remove the requirement for leave to cross-examine the complainant on sexual activities constituting the offence or immediately surrounding the offence.  The Court held that the interpretation of the provision supported by existing authorities warrants revisiting in an appropriate case.

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30 May 2023

Director of Public Prosecutions v Sean (a pseudonym) (No 4) [2023] ACTSC 97 (SCC 247 of 2022; SCC 248 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – burglary – minor theft – damage to property – breach of good behaviour order upon conviction – re-sentencing – where defendant was a young person at the time of offending – protection of the community – relevance of changes in subjective circumstances – recent diagnosis of autism – where the young person requires major surgery within a short time frame

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30 May 2023

R v Sean (a pseudonym) (No 2) [2023] ACTSC 132

EVIDENCE – Tendency Evidence – Application by Crown to rely on tendency evidence in a criminal trial against a young person – where accused charged with murder by stabbing – evidence suggesting a tendency to act disproportionately by using an offensive weapon, or threatening to use an offensive weapon, to inflict serious injury – evidence suggesting a tendency to have an interest in the unlawful possession of knives – where accused one of seven young men involved in an attack on four young men including the deceased – where identification of the stabber will be the central issue in the trial – absence of evidence excluding the existence of the same tendencies in the other six young men – difficulty of discerning tendency in a young person – unfair prejudice

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30 May 2023

R v Sean (a pseudonym) (No 3) [2023] ACTSC 133

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Discharge of Juror – Whether the juror should not continue to act as a juror because of illness or other sufficient cause – meaning of “other sufficient cause” – where jury members communicate concerns about another juror’s impartiality – where juror is not prepared to discharge their functions – where juror risks preventing other jury members from discharging their functions as jurors

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30 May 2023

DPP v B Makoi; K Makoi; N Matot; A Matot; A Dau (No 2) [2023] ACTSC 125

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – judge alone verdict – aggravated burglary – assault occasioning bodily harm – damaging property – threat to kill – five co-offenders charged pursuant to s 45A – joint criminal enterprise – effluxion of time affecting complainant’s memory – Murray direction – reasonable doubt as to complainant’s reliability – reliability of complainant’s identification of assailants – witness decamped during trial – no opportunity to cross-examine witness – Mahmood direction – Jovanovic direction

The Supreme Court has found one of five co-offenders guilty of aggravated burglary, assault occasioning actual bodily harm and damaging property. There were concerns about the complainant’s evidence, which arose from her prior convictions for dishonesty, and untruthful evidence that she had given in Court in relation to events surrounding the allegations. Justice Baker was satisfied beyond reasonable doubt of the guilt of one of the five accused because the complainant’s evidence identifying that accused was supported by the evidence of a neighbour, whose evidence was found to be independent and reliable. Importantly, the only other witness in the apartment at the time of the alleged offending disconnected the AVL link during her cross-examination and did not return to court to complete her cross-examination after she was asked a question about inconsistencies in the account that she had given to police and her evidence in court. Her Honour was not satisfied beyond reasonable doubt of the fourth charge against that accused, or the charges against the remaining accused, as those charges were not supported by independent and reliable evidence

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26 May 2023

Jorgensen v Wilson (No 3) [2023] ACTSC 124

PRACTICE AND PROCEDURE – COSTS –  Application for gross sum costs order – proceedings permanently stayed and plaintiff declared a vexatious litigant – adjournment sought pending determination of appeal and application for judicial review – application for recusal on the grounds of apprehended bias – deficiencies in defendants’ evidence in support – whether an appropriate case to make gross sum costs order – conservative approach adopted where evidence in support of application less than complete

PRACTICE AND PROCEDURE – COSTS –  Consideration of the “costs indemnity rule” – consideration of the principle expressed in Inglis v Moore (No 2) (1979) 25 ALR 453 –  a successful party represented by the Crown Solicitor in litigation in which the relevant government has an interest is not disentitled to costs from an unsuccessful party merely because the successful party is not under a personal liability to the Crown Solicitor for costs – where defendants represented by private practitioners engaged to act for the government – costs recoverable even if the individual defendants have not been shown to be exposed to a risk of personal liability for costs

The Supreme Court has made a gross sum costs order in favour of the defendants in proceedings brought by the plaintiff, Mr Alan Jorgensen. On 10 March 2023 the court made orders permanently staying the proceedings and declaring Mr Jorgensen to be a vexatious litigant. The court also ordered that Mr Jorgensen pay the defendants’ costs of the proceedings on a solicitor and client basis.

The defendants subsequently filed an application seeking their costs as a gross sum. The court considered that it was an appropriate case in which to make a gross sum order. However, as the evidence in support of the application was less than complete, the court adopted a conservative approach in order to avoid the risk of injustice to the plaintiff.

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26 May 2023

Re the Will of D (a pseudonym) v O (a pseudonym) [2023] ACTSC 123

SUCCESSION – STATUTORY WILL – Where capacity never existed – Whether the proposed will is one reasonably likely if capacity existed – Subjective intention – Whether it is appropriate for the order to be made – Whether the applicant is an appropriate person to make the application – Leave granted

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25 May 2023

R v Bower (No 2) [2022] ACTSC 388 (SCC 32 of 2021 ; SCC 78 of 2021 ; SCC 79 of 2021 ; SCC 170 of 2022 ; SCC 171 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Receiving – Dishonestly riding in a motor vehicle without consent – Obtaining property by deception – Unlawful possession of stolen property – Minor theft – Driving while disqualified – Delay – Breach of conditional liberty – Rehabilitation while on bail – Sentence of imprisonment – Drug and Alcohol Treatment Order application – Application successful

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25 May 2023

Cossey v Canberra Airport Pty Limited [2023] ACTSC 122

PRACTICE AND PROCEDURE – PLEADINGS – Application to amend statement of claim – whether proposed amendments would prejudice, embarrass or delay the fair trial of the proceeding – whether the particulars state the facts and circumstances of the negligent act, omission or breach of statutory duty – whether amendments are necessary – application granted in part

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25 May 2023

R v Peric (No 3) [2022] ACTSC 387 (SCC 279 of 2021; SCC 280 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Choke, suffocate or strangle a person – Assault occasioning actual bodily harm – Common assault – Family violence – Alcohol abuse – Opportunity for rehabilitation – Sentence of imprisonment – Drug and Alcohol Treatment Order application – Application successful

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24 May 2023

Findex Group Limited v McKay (No 3) [2023] ACTSC 108

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Application to vary reasons – whether it is in the interests of justice to vary reasons for making an interlocutory decision – whether the reasons contained incorrect assumptions of fact – where the interests of justice include the finality of litigation and the objectives of case management

The Supreme Court has dismissed an application to vacate an order having the effect of rejecting a proposed amended pleading, holding that the Court’s discretion to reopen a judgment alleged to have miscarried should not be exercised in the circumstances of the case.  The parties agreed that the Court has power to reopen its decisions where it is the interests of justice to do so.  The Court held that the grounds for the present application did not meet the threshold for exercising that discretion having regard to the objectives of case management.

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24 May 2023

SS (a pseudonym) v OT (a pseudonym) & Anor [2023] ACTSC 111

NEGLIGENCE – car accident which resulted in personal injury – where plaintiff is an infant – settlement of proceedings – court approval required for settlement involving an infant – settlement approved

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22 May 2023

R v Henderson [2023] ACTSC 110 (SCC 136 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –possession child abuse materials – transmission child abuse materials – prior good character – mental health issues – applicability of ‘Verdins principles’ – risk of suicide and responsibility of correctional authorities – general deterrence and personal deterrence – lack of insight – applicability of ‘Bugmy principles’ – importance of recognising the harm to victims paramount – early pleas of guilty and co-operation – taking responsibility for offending

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19 May 2023

O’Toole & Anor v M Johnson Building Pty Ltd [2023] ACTSC 116

CIVIL LAW – BUILDING AND CONSTRUCTION – Breach of Contract – defects in construction of residential building – failure to carry out works in accordance with plans – failure to carry out works with proper care and skill – failure to comply with requirements under the Building Act – Rectification of defects granted

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18 May 2023

In the matter of the adoption of XSE [2023] ACTSC 114

ADOPTION – application to dispense with requirement for consent of birth parents to adoption of child by her foster carers – whether dispensation necessary in the best interests of the child – where child has been residing with the same foster carers since infancy – where no realistic prospect of child establishing any relationship with birth parents – dispensation order made

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18 May 2023

In the matters of the adoption of IMN, HM and HI [2023] ACTSC 115

ADOPTION – application to dispense with consent of birth parents for three children who have lived with foster carers for many years – whether adoption necessary in the best interests of the child – where children have strong attachment to foster carers and where no realistic prospect of restoration to birth parents at any time in the future – where adoption would promote security and stability as children move into adolescence – dispensation orders made

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17 May 2023

M C-N (a pseudonym) v The Queen [2023] ACTCA 21

APPEAL – CRIMINAL LAW – Appeal against sentence – Where self-represented appellant alleged manifest excess – where appeal determined on a different ground – where the sentencing judge made an error in imposing a suspended sentence – whether the error enlivened the Kentwell principles – where the error causes the sentence to miscarry – where the sentencing discretion must be exercised afresh

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentencing – aggravated burglary – drive motor vehicle without consent – damage property – theft – where the offender was at conditional liberty – where the offending was serious – youth sentencing principles – application of Bugmy

The Court of Appeal has allowed an appeal, holding that the sentence imposed on the appellant by the Supreme Court entailed error.

The appellant was sentenced in the Supreme Court for a series of offences committed while he was subject to a Good Behaviour Order (GBO). The sentencing judge cancelled the GBO and imposed the whole of the sentence of imprisonment that was previously partially suspended. The Court found that, the appellant having served 8 months and 1 week of the sentence in custody, the sentencing judge ought to have ordered that the appellant serve only the suspended portion of the sentence. The Court held that the result of this error was that the sentencing process had miscarried and the Court had to exercise the sentencing discretion afresh.  The Court re-sentenced the offender to a total of 3 years, 3 months and 25 days’ imprisonment suspended from 25 May 2023, upon the appellant entering a GBO for the remaining term of the sentence.

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16 May 2023

Application by a person summoned for jury service for support [2023] ACTSC 112

CRIMINAL PROCEDURE — Trial — Jury – Application for support for person with a hearing impairment summoned for jury service – Where the Court is required to consider the support to assist in discharging the duties of a juror – whether the support can be reasonably given – where the legislature expressly contemplated the provision of Auslan interpreters

The Supreme Court has published its reasons for granting an application by a person summoned for jury service for support.  The potential juror had a hearing impairment.  The Court ordered that they be assisted with Auslan interpreting services during empanelment and, if empanelled, during the trial.

The decision was made under s 16 of the Juries Act 1967 (ACT), which requires the Court to consider support available to assist potential jurors with disabilities.  The Chief Justice was satisfied that this support could be given through two rotating Auslan interpreters and that this was not an unreasonable burden on Court time or resources.

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16 May 2023

Director of Public Prosecutions v Jesse Draper (a pseudonym) [2023] ACTSC 109

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Arson – arson while in custody – where there was risk to a cell mate –  mental health of offender – where the offender diagnosed with paranoid schizophrenia – application of Verdins principles

The Supreme Court has sentenced an offender for committing an arson while in custody. The offender used a flint and paper to start a fire in his cell, while his cell mate was asleep. The damage caused by the fire was estimated to be $20,000. The offender had a difficult life, marred by abuse, illicit substance addiction and violence. The offender also has significant mental health issues, and had been diagnosed with paranoid schizophrenia and Post-Traumatic Stress Disorder. In view of the offender’s diagnosed mental health issues, the Court was satisfied that the offender’s moral culpability is reduced. However, the Court recognised that a term of full-time imprisonment was necessary to reflect the seriousness of the offending, to discourage further offending and to protect the community. The total sentence was 13 months imprisonment, suspended after 9 months on a good behaviour order with conditions to engage in treatment for the offender’s mental health and substance abuse issues.

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16 May 2023

R v Ayfandis [2023] ACTSC 94 (SCC 14 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft of ICT equipment from workplace – sentence of imprisonment

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12 May 2023

Manny v Nissen (No 2) [2023] ACTCA 20

APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – whether decision of primary judge final or interlocutory – whether extension of time to file application for leave should be granted – whether to grant leave to appeal from interlocutory decision – whether primary decision attended with sufficient doubt to warrant reconsideration – leave to appeal refused

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11 May 2023

Millard v Collins (No 2) [2023] ACTSC 106

PRACTICE & PROCEDURE – DISCOVERY – application for further discovery – competing application to limit disclosure obligations – whether discovery given was inadequate – where orders for further discovery previously made – whether further discovery would be oppressive – further discovery ordered

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9 May 2023

Grant v Carey [2023] ACTSC 105

APPEAL – APPEAL FROM MAGISTRATES COURT – appeal from finding of guilt on charge of choking – whether Magistrate applied incorrect legal test – where respondent concedes error – error made out – appropriate disposition of appeal – matter remitted to Magistrates Court

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9 May 2023

Allen v Wilson (No 2) [2023] ACTSC 102

COSTS – where costs follow the event – where plaintiffs enjoyed mixed success on multiple causes of action – where part of the plaintiffs’ success involved a grant of equitable relief that was not pleaded – proportionate costs awarded

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9 May 2023

Glover v Fuller (No 3) [2023] ACTSC 101

PRACTICE AND PROCEDURE – COSTS – where plaintiff successful in negligence claim – where costs awarded were less than jurisdictional limit of Magistrates Court – application of r 1725 of the Court Procedures Rules 2006 (ACT) – relative success of parties – whether some indemnity costs should be awarded – alternative costs order made

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8 May 2023

Gardner v Chief Magistrate Walker [2023] ACTSC 96

COURTS AND JUDGES – Supreme Court – Supervisory jurisdiction – Inferior courts – Judicial review of extradition order by a magistrate – application to quash extradition order –  whether arrest warrant is invalid because it does not disclose jurisdiction on its face – whether order made by the magistrate was infected by jurisdictional error because of the invalidity of the arrest warrant – whether the supervisory jurisdiction of the Supreme Court is excluded by the Service and Execution Process Act 1992 (Cth)

The Supreme Court has granted an interim stay of an extradition order of a magistrate following an application by the plaintiff to quash the order. The plaintiff argued that the order was infected by jurisdictional error because the NSW arrest warrant on which it was founded was invalid. The plaintiff contended that the invalidity arose from the fact that the warrant did not disclose jurisdiction on its face.  The presumption of regularity did not apply because the warrant was issued by a subordinate authority.  The plaintiff was due to be released from prison the following morning and so, but for the stay, would have been arrested by NSW police at that point.  Noting the urgent basis on which the application was brought, the Court held that, should it be necessary to determine the issue on a final basis, it would be appropriate to allow the NSW Attorney General to intervene and be heard as the application concerned the form of warrant ordinarily issued as a matter of practice in that State.

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8 May 2023

R v Incandela (No 2) [2021] ACTSC 264

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – application to appoint intermediary – application to appear by audio-visual link

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5 May 2023

Alexander v Bakes [2023] ACTSC 103

CRIMINAL LAW – Magistrates Court Appeal – Appeal against finding of guilt – Nature of appeal from Magistrates Court to Supreme Court – Whether error established in the amendment of the charges – Whether the magistrate erred in finding the property belonged to a particular entity – Whether tendency and coincidence reasoning used – Whether findings of guilt are reasonable and supported by evidence – Whether magistrate mistook the facts – Error established – Evidence establishes guilt of the appellant – Appeal allowed in part

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4 May 2023

R v Dean [2023] ACTSC 98 (SCC 287 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use a carriage service for pornography – Possessing child abuse material using a carriage service – Possessing child exploitation material

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3 May 2023

The Queen v Ruwhiu [2023] ACTCA 18

APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – whether non-parole period manifestly inadequate – relationship between head sentence and non-parole period – relevant considerations for fixing the non-parole period – whether the sentencing judged erred in relying heavily on the respondent’s prospects of rehabilitation, the burden of deportation and time in custody – appeal dismissed

The Court of Appeal has dismissed a prosecution appeal against sentence. The Court found that the non-parole period imposed by the sentencing judge was lenient, but not manifestly inadequate. The Court found that the sentencing judge considered each of the purposes of sentencing, and that different weight could be placed on these purposes in fixing a non-parole period. The Court held it was open to the sentencing judge to find that the respondent’s moral culpability was reduced by reason of his disadvantaged background. The Court determined that it was open to the sentencing judge to impose a lenient non-parole period in all the circumstances.

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2 May 2023

Director of Public Prosecutions v Earle [2023] ACTSC 93 (SCC 151 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  Sexual intercourse without consent – Act of indecency without consent – Where offender expresses remorse for offending – Where offender is of good character – Whether the purposes of sentencing will be addressed by an Intensive Correction Order – Where the offender was reckless as to whether the victim was consenting – Weight to be given to sentencing purposes

The Supreme Court has sentenced an offender, Thomas Earle, to a term of imprisonment for three years to be served in the community by way of intensive correction order. In addition to the core conditions of such order, the Court ordered that the offender complete 300 hours of community service and 20 hours of counselling. The Court held that the significant harm the offending caused the victim and the need for general deterrence meant that no penalty other than imprisonment was appropriate. However, the Court was satisfied that the offender’s strong prospects for rehabilitation and low risk of recidivism warranted that the period of imprisonment be served in the community.

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2 May 2023

R v Burge [2022] ACTSC 376 (SCC 257 of 2021; SCC 258 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Aggravated dangerous driving – Repeat offender – Damaging Commonwealth property – Common assault – Delay in sentencing – Rehabilitation – Mental health – Drug use – Drug and Alcohol Treatment Order application – Application successful

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1 May 2023

DPP v Larkham [2023] ACTSC 68 (SCC 252 of 2022; SCC 253 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – plea of guilty to aggravated robbery, dishonestly ride in stolen motor vehicle, possess offensive weapon with intent and dishonestly appropriating property – robbery was of chemist and with use of syringe – robbery had enduring impacts on staff and business – where crimes committed to support drug addiction – offender at crossroads in her life – sentence of imprisonment imposed to be served by way of intensive corrections order

The Supreme Court has sentenced Grace Larkham to two years, two months and 16 days’ imprisonment, to be served by way of intensive corrections order with the condition that she perform 160 hours of community service. The offender entered a plea of guilty to aggravated robbery and minor theft. The aggravated robbery was of the Capital Chemist in O’Connor and the offender was armed with a syringe. The offender was noted as being at a crossroads in her life and as having prospects of rehabilitation.

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1 May 2023

Bennelong Medical Pty Ltd v Commissioner of Taxation [2023] ACTSC 74

APPEAL – APPEAL FROM REGISTRAR – Decision of Senior Deputy Registrar refusing plaintiff leave to represent company under r 30(4) of the Court Procedures Rules 2006 (ACT) – where plaintiff is the sole director and shareholder of the company – where final relief seeks declaration as to interpretation of Income Tax Assessment Act 1997 (Cth) – relationship between declaration sought and circumstances of case unclear – unnecessary steps taken in proceedings so far – incorrect defendant named – appeal dismissed

The Supreme Court has dismissed an appeal against a decision of the Registrar refusing leave for a self-represented litigant to represent a company of which he is the sole shareholder and director. Leave was refused in circumstances where there exists a risk that the matter will not be efficiently litigated in the absence of a solicitor.

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1 May 2023

R v Incandela [2021] ACTSC 222

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application – application to appoint intermediary for complainant – whether complainant has a “communication difficulty” – application for a ground rules hearing to be held for complainant

EVIDENCE – TAKING OF EVIDENCE – pre-trial application – application for complainant to give evidence at pre-trial hearing – witness in a relevant proceeding – sexual offence proceeding – adult complainant – whether complainant is a “vulnerable adult”

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27 April 2023

DPP v Sarmiento [2023] ACTSC 92 (SCC 308 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Attempted sexual intercourse without consent – Sentencing Principles – Moral Culpability – Subjective Circumstances – Remorse – Mental Health Conditions – Interests of Justice – Intensive Corrections Order

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27 April 2023

Michael Wilson & Partners Ltd v Nicholls (No 11) [2023] ACTCA 16

APPEAL – APPEAL FROM COURT OF APPEAL – jurisdictional issue – application to Court of Appeal for leave to appeal decision of single judge sitting as Court of Appeal granting security for costs – s 37E of the Supreme Court Act 1933 (ACT) – no jurisdiction to appeal decision of a single justice comprising the Court of Appeal

Applications for leave to appeal dismissed for want of jurisdiction.

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26 April 2023

R v Winters (No 2) [2022] ACTSC 378 (SCC 25 of 2022; SCC 26 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Re-sentence for Previous Offences – Breach of Treatment Order – Further Offending – Driving Unlicenced – Driving a Motor Vehicle Without the Owner’s Consent - Cancellation of Treatment Order - Good Behaviour Order – Further Drug Treatment

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24 April 2023

Stephens v Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn [2023] ACTSC 88

PRACTICE & PROCEDURE – DISCOVERY – application for further discovery – whether discovery given was inadequate – what constitutes indirect relevance – whether documents sought were a “train of inquiry” or constituted “fishing” – where documents relevant to facts in issue directly and on a tendency basis –whether further discovery would be oppressive – further discovery ordered but limited to prescribed categories

PRACTICE & PROCEDURE – NON-PARTY PRODUCTION application to set aside notices for non-party production – where documents relevant to facts in issue directly and on tendency basis – whether production should first be made to defendant for redaction of personally sensitive information – notices varied

The Supreme Court has ordered that the defendant in a matter alleging historical child sexual abuse must provide further discovery of documents. The Court considered that discovery to date had been inadequate, and that the documents sought by the plaintiff related directly or indirectly to the issues in the proceeding.

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24 April 2023

In the matters of the adoptions of NBE and NSE [2023] ACTSC 87

ADOPTION – application to dispense with requirement for consent of birth parents to adoption of two children by their foster carers – where children have been residing with the same foster carers since infancy – where no realistic prospect of children establishing any relationship with birth parents – dispensation order made

The Supreme Court has dispensed with the requirement for the consent of the birth parents to the adoption of two children who are in long term foster care. The Court found that adoption is in the best interests of the children.

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24 April 2023

Re the Will of Clara (a pseudonym) [2023] ACTSC 86

SUCCESSION – STATUTORY WILL – nil capacity – where person for whom will is sought has intellectual disability from birth – whether the proposed will is one that it is reasonably likely to have been made if the person had capacity – whether it is appropriate for the order to be made – whether applicant is an appropriate person

The Supreme Court has allowed an application for the creation of a statutory will brought by the grandmother of an intellectually disabled child. The Court accepted that the child has no testamentary capacity, that the proposed will is one that it is reasonably likely the child would have made if they had the capacity to do so, and that it was in the interests of the child for the will to be made.

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24 April 2023

Director of Public Prosecutions v Gottaas-Hughes [2023] ACTSC 85

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of child abuse material – act of indecency without consent – sexual intercourse without consent – production of child exploitation material – unbeknownst to victim at time of offending – offender and victim close friends – whether reduction of moral culpability by way of paraphilic disorder – consumption of pornographic material as a youth – reduction of moral culpability by way of youth of the offender – application of youth sentencing principles – good prospects of rehabilitation – importance of rehabilitation to community

The Supreme Court has sentenced an offender for accessing child abuse material and other sexual offences. Both series of offending were serious in nature. The offender was young at the time of offending and became addicted to child pornography when he was a child himself. The offender has engaged in intensive rehabilitation in the community and Baker J was satisfied that the offender has good prospects of rehabilitation. However, her Honour stated that one could not lose sight of the seriousness of the offending and that a period of full-time imprisonment was necessary. The total effective sentence imposed was 2 years and 9 months, with 10 of those months to be served full-time. The remaining 23 months will be suspended on a good behaviour order.

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21 April 2023

DPP v Mena [2023] ACTSC 80 (SCC 206 of 2021; SCC 303 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted murder – aggravated burglary – discharging loaded arm so as to cause another person reasonable apprehension for his or her safety – offending occurred in company – offender shot victim twice from close range –  intention to kill not premeditated – attempted murder and aggravated burglary in mid-range of objective seriousness – no acceptance of responsibility or remorse – young offender – guarded prospects of rehabilitation – sentences of imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour orders as a condition of suspended sentences of imprisonment – good behaviour orders cancelled – suspended sentences imposed

The Supreme Court has sentenced Sugimatatihuna Mena to 9 years and 10 months’ imprisonment for the offences of attempted murder, aggravated burglary and discharging a loaded arm.

Mr Mena was found guilty by a jury in December 2022. His co-offenders, Rebecca Parlov and Bradley Roberts were also found guilty of aggravated burglary. The charges relate to an incident in the morning of 11 March 2021. Mr Mena and the co-offenders entered a home in Spence. Mr Mena shot the victim twice from close range with a sawn-off .22 calibre rifle.

The court held that the Mr Mena’s intention to kill the victim was not premediated and that the attempted murder and aggravated burglary charges were in the mid-range of objective seriousness. The court considered Mr Mena’s prospects of rehabilitation to be guarded as he has not demonstrated any remorse or taken responsibility for the offending. A non-parole period at the lower end of the usual range of five years and five months was imposed, reflecting the fact that Mr Mena is a relatively young man.

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20 April 2023

DC (a pseudonym) v Halstead [2023] ACTSC 84

CRIMINAL LAW – Appeal – manifestly excessive – young offender –multiple offences-multiple breaches of conditional liberty – Youth Justice sentencing principles – “Bugmy” principles – “Verdins” principles – “Henry” principles on drug dependency – relevance to sentencing – primacy of the promotion of rehabilitation – promotion of rehabilitation in a practical way – combination sentence – preparation for release to the community

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20 April 2023

In the matter of an application under the Confiscation of Criminal Assets Act 2003 (ACT) [2023] ACTSC 72

Decision : An order in the terms set out in annexure A of the application in proceeding dated 30 March 2023 - Publication of these reasons is prohibited under the Confiscation of Criminal Assets Act 2003 (ACT)

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20 April 2023

DPP v Girvan [2023] ACTSC 35 (SCC 206 of 2022; SCC 207 of 2022; SCC 208 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence – various offences of carjacking and aggravated robbery – offences took place in the early hours of the morning – offending involved use of a machete and axe to threaten victims – offending occurred to support drug habit –prospects of rehabilitation are mixed – custodial sentence imposed

The Supreme Court has sentenced Corey Girvan to an immediate term of custody (five years and three months, with a two year and nine month non parole period) following his plea of guilty to various offences committed during an early morning crime spree involving carjackings and the use of an axe and machete to threaten and intimidate victims. The Court found that the offender’s youth entitled him to some leniency, and that the offending was largely drug related. It found that if the offender’s drug habits were addressed then he may have reasonable prospects for rehabilitation.

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20 April 2023

DPP v Butkovic [2023] ACTSC 62 (SCC 28 of 2022; SCC 27 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offences of aggravated robbery in company while armed with offensive weapon – three other co-offenders previously sentenced by the court – purpose of robbery to enforce extra-legal drug debt – offender previously subject to intensive corrections order for trafficking offences – application of parity principles – prospects of rehabilitation – sentence backdated and suspended upon entry into good behaviour obligations

The Supreme Court has sentenced Kyle Butkovic to 30 months’ imprisonment, backdated to account for time already spent in custody and suspended immediately. The offender was involved in a robbery where an accomplice lured the victim to their home to be intimidated and robbed by Mr Butkovic and his co-offender’s. The robbery was intended to enforce a drug debt. The victim was left with bruises and a swollen eye. The Court noted the submission of the offender that his rehabilitation would come to a ‘grinding halt’ were he to return to custody.

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20 April 2023

Ezekiel-Hart v Council of the Law Society of the ACT [2023] ACTSC 78

PRACTICE AND PROCEDURE – EX PARTE APPLICATION FOR INTERIM RELIEF – Plaintiff claiming ‘victimisation’, ‘discrimination’, ’intimidation’ – whether there is sufficient risk of irremediable damage or detriment to the rights of the plaintiff – Whether it was necessary to proceed on an ex parte basis –requirements for notification of affected parties –circumstances of grant of interim relief ex parte.

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19 April 2023

R v Johns (a pseudonym) [2019] ACTSC 399 (SCC 248 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – national security information – where pleas of guilty entered at earliest opportunity – where defendant demonstrates remorse

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19 April 2023

R v Johns (a pseudonym) (No 2) [2023] ACTSC 83

JUDGMENT – SENTENCE – Publication of sentencing remarks – principle of open justice – where the principle of open justice must give way to the interests of national security

The Supreme Court has published the reasons for sentencing “Alan Johns” (a pseudonym) in a redacted form. Alan Johns was sentenced by the Court several years ago after pleading guilty to criminal offences based on his treatment of classified information. The Court held that it was necessary to make certain redactions to the sentence decision to ensure the protection of a more urgent consideration of public interest, being national security.

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18 April 2023

R v McColl [2022] ACTSC 386 (SCC 179 of 2021; SCC 86 of 2022; SCC 87 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Dishonestly driving a motor vehicle without consent – Culpable driving – Obtaining property by deception – Minor theft – Possessing stolen property – Subjective circumstances – Youth – Childhood disadvantage – Mental health – Pre-sentence custody – Sentence of imprisonment – Drug and Alcohol Treatment Order application – Application successful

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18 April  2023

R v Shepherd (No 2) [2022] ACTSC 248

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Subjective Circumstances – Drug Addiction – Mental Illness – Drug and Alcohol Treatment Order Application – Application Denied – Imprisonment

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17 April  2023

Director of Public Prosecutions v Lehrmann (No 6) [2022] ACTSC 334

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Accused charged with one count of sexual intercourse without consent – Where the Director of Public Prosecutions has declined to proceed further on the indictment – Whether various suppression orders made during the course of the proceedings should be maintained or revoked

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14 April  2023

R v Subasic (No 2) [2023] ACTSC 79

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – Application for bail pending re-sentence –Offender seeking to attend rehabilitation – Awaiting assessment for rehabilitation day program – History of breaching bail – What constitutes “past behaviour” – Completed rehabilitation program in custody – Family as a protective factor – Risk able to be managed with strict conditions – Curfew – Bail granted

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13 April 2023

KD v Gillard (No 2) [2023] ACTSC 77

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Committal to Supreme Court – Conviction for driving unlicenced whilst under a good behaviour order – meaning to be given to ‘offence’ in s 107 of the Crimes (Sentencing Administration) Act 2005 (ACT) – appropriate basis for committal to the Supreme Court pursuant to s 107 – committal to Supreme Court quashed

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12 April 2023

DPP v Osmani [2023] ACTSC 66

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Adjournment – Application to adjourn arising from receipt of pre-sentence report – application not supported by evidence as to steps taken prior to receipt of report – application dismissed

The Supreme Court has dismissed an application to adjourn a sentencing hearing. Mr Osmani is due to be sentenced with two co-offenders on 30 March 2023. The application sought an adjournment in order to obtain further instructions as to the offender’s suspicion that he is on the autism spectrum. The court held that there was insufficient evidence as to whether instructions had been taken from the offender prior to the setting of the hearing date. The court noted that there is currently a premium on sentencing dates given the workload of the court and number of judges. The court ordered that the sentencing proceeding take place and that the offender be given an opportunity to put on further evidence for a limited period of time following the hearing.

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12 April 2023

MM v Australian Capital Territory [2023] ACTSC 55

CIVIL LAW – INTERLOCUTORY APPLICATION – Application to vacate hearing date – purpose of civil procedure provisions – where deficiencies are exposed in former solicitor’s preparation of the proceedings – requirement to perform the function of case management with “an undiminished commitment to afford to all who come to the courts a manifestly just trial of their disputes”

The Supreme Court has vacated a hearing date for a personal injury claim against the ACT Government arising out of the alleged sexual assault of the plaintiff by a former Deputy Registrar of the Magistrates Court. The request for an adjournment was prompted by deficiencies in the preparation of the matter for hearing on the part of the plaintiff’s previous solicitors. While litigants are ordinarily bound by the conduct of their legal representatives, the Court held that to refuse the adjournment would not produce a just outcome in the present case.

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12 April 2023

Gang v You (No 2) [2023] ACTSC 32

CIVIL LAW – CIVIL PRACTICE AND PROCEDURE – Where plaintiff lodged caveat on real property owned by defendant ostensibly in connection with interest claimed in the proceedings – Where plaintiff unsuccessful in proceedings at first instance – where appeal commenced – whether any caveatable interest pending the determination of the appeal

The Supreme Court has revoked a previous order of the Court which extended a caveat over certain property until further order. The interest the caveat claimed to protect was an agreement between the parties that the plaintiff would be granted an option upon his sale of the land to repurchase it within three years. The order extending the caveat was made because a decision by the Supreme Court (that the plaintiff did not have an interest in the property) was awaiting appeal. That appeal remains to be heard and determined by the ACTCA. The Court found that the plaintiff had no caveatable interest in the property.

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12 April 2023

Sawkins v Australian Capital Territory [2023] ACTSC 73

PRACTICE AND PROCEDURE – Application to rely on further expert reports, amend defence and to require experts to give evidence in conclave – where application made in close proximity to hearing – where further expert reports have caused defendants to abandon prior concession as to causation – where defendant had previously indicated that only further reports as to quantum would be sought – whether leave should be granted to allow reliance on further reports – application allowed – defendant to pay plaintiff’s costs of application on solicitor and client basis

The Supreme Court has allowed an application by the defendant in a medical negligence matter seeking, among other things, to rely on further expert reports. The application was made 4 business days before the trial and in circumstances where the evidence formed the basis for the abandoning of the defendant’s concession as to causation. The application was allowed with costs.

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12 April 2023

Brown v Director-General of the Justice and Community Safety Directorate [2023] ACTCA 15

APPEAL – HUMAN RIGHTS – Statutory interpretation - where appellant complains of failure by respondent to provide an Aboriginal Health Assessment while she was in custody – where appellant submits that respondent obligated by operation of Corrections Management Act 2007 (ACT) and Human Rights Act 2004 (ACT) to do so – consideration of Corrections Management Act 2007 (ACT) – where applicant did not request health assessment – where applicant does not complain of any adverse outcome arising from absence of assessment – appeal dismissed with costs

The Court of Appeal has dismissed an appeal by Keira Brown from a decision of the Supreme Court rejecting her claim that the Director-General of the Justice and Community Safety Directorate had breached various provisions of the Corrections Management Act 2007 (ACT) and the Human Rights Act 2004 (ACT) by failing to ensure that an “Aboriginal Health Assessment” was carried out during her detention in the Alexander Maconochie Centre. The Court upheld the primary judge’s findings that: (1) the legislation only went as far as requiring the Director-General to ensure the availability and not the provision of medical services and (2) the evidence showed that there was a high standard of medical care provided in the AMC and that medical practitioners had actively considered whether to administer an AHA to the appellant.

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11 April 2023

DPP v Roberts [2023] ACTSC 67

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to adjourn sentencing hearing – extension of time sought to obtain psychiatrist’s report – evidentiary material inadequate – application dismissed

The Supreme Court has dismissed an application to adjourn a sentencing hearing. Mr Roberts is due to be sentenced with two co-offenders on 6 April 2023. The application sought an adjournment in order to obtain a psychologist’s report and for the offender’s current legal representative to obtain instructions and read the material for the sentence.

The court held that the evidentiary material before the court was inadequate and was conclusory in its terms. The court recognised the advantage of hearing all of the submissions made by the co-offenders at the same time. The court also noted that if it became clear at the sentencing hearing that the offender was prejudiced by some inadequacy in the preparation of his case, then an application could be made at that point.

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6 April 2023

McKay v Findex Group Limited; Findex Group Limited v McKay [2023] ACTSC 58

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Pleadings – Strike-out application – whether pleading is an abuse of process – whether pleadings disclose any reasonable cause of action – whether the pleadings may tend to embarrass the fair trial of the proceedings embarrassing – where lengthy history of litigation between the parties

CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Statement of claim – Application to file a further amended statement of claim – whether the pleadings address previous identified inadequacies – whether amendments sought unreasonably expand the scope of the claim – where lengthy history of litigation between the parties

The Supreme Court declined to grant two interlocutory applications filed by Findex Group Limited in two separate proceedings involving an old employee, Mr McKay.

In the first application, Findex sought to strike out all or parts of the amended statement of claim (ASOC) filed by Mr McKay in proceedings seeking damages for alleged trespass. Her Honour found the ASOC was not an abuse of process and had a cause of action, but some elements needed repleading.

Findex also applied to file a further ASOC in disparagement proceedings brought against Mr McKay. Her Honour found that the further ASOC did not address inadequacies identified previously by the Court and would unreasonably expand the claim.

Uploaded

4 April 2023

R v Kerry (a pseudonym) (No 3) [2022] ACTSC 171

CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Pre-trial application -- application for leave to adduce evidence pursuant to s 65 of the Evidence Act 2011 (ACT)

Uploaded

4 April 2023

R v Kerry (a pseudonym) (No 2) [2022] ACTSC 111

CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- application to disclose protected confidence -- where Crown seeks leave to disclose documents

Uploaded

4 April 2023

R v Kerry (a pseudonym) [2022] ACTSC 80

CRIMINAL LAW --  JURISDICTION, PRACTICE AND PROCEDURE --  application to disclose protected confidence --  whether Crown can subpoena documents and bring them before the Court prior to an application being made under section 65 of the Evidence Act 2011 (ACT)

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3 April 2023

Royce (a pseudonym) v Australian Capital Territory [2023] ACTSC 69

NEGLIGENCE – medical negligence – where plaintiff is a minor – settlement of proceedings – court approval required for settlement involving a minor – whether private trustee should be appointed

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3 April 2023

Paterson v Calvary Healthcare ACT Ltd [2023] ACTSC 70

NEGLIGENCE – medical treatment which resulted in death – compensation to relatives – where one child is a minor – settlement of proceedings – court approval required for settlement involving a minor

Uploaded

3 April 2023

Millard v Thurger [2023] ACTSC 3

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail application – Appeal from Magistrates Court – Where applicant has been sentenced and is awaiting appeal – merits of appeal – whether special or exceptional circumstances established – bail refused

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3 April 2023

Stewart v DPP [2023] ACTSC 11

CRIMINAL LAW – BAIL – Jurisdiction of Supreme Court to hear bail application – whether prior bail hearing was a bail review pursuant to s 42A of the Bail Act 1992 (ACT) – nothing to indicate hearing was a bail review – application dismissed

The Supreme Court has dismissed an application for bail by Euan Stewart. Mr Stewart sought bail in the Supreme Court after a number of bail applications were made by him in the Magistrates Court. In order to enliven the jurisdiction of the Supreme Court, Mr Stewart was required to have had a bail review hearing in the Magistrates Court pursuant to s 42A of the Bail Act 1992 (ACT). The court held that there was nothing to indicate that the prior bail hearing was a bail review and the application was dismissed.