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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18 September 2020

Dencio v Dencio in her capacity as Administrator of the Estate of the late Brian Gordon Dencio, Deceased [2020] ACTSC 250

EQUITY – TRUSTS – whether express or constructive trust – where property registered in mother’s and son’s names through family deed arrangement – whether words and conduct establishes express or constructive trust – whether common intention regarding respective beneficial interests in property at time one-half share in property conveyed to son – whether mother acted to own detriment based upon that common intention

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18 September 2020

R v Hoare [2020] ACTSC 238 (SCC 8 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary – Theft – Damage property – Offences committed during mental health episode

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15 September 2020

R v DU (No 3) [2019] ACTSC 397

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial Application – application to lead complainant’s sexual history – whether proposed evidence has substantial relevance to the facts in issue

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15 September 2020

R v TI (No 6) [2019] ACTSC 394 (SCC 246 of 2014; SCC 240 of 2015; SCC 241 of 2015)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – re-sentence – multiple breaches of Good Behaviour Orders – consideration of combination sentence for young person

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15 September 2020

R v Uluikadavu [2020] ACTSC 237 (SCC 294 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – “One punch” offence

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11 September 2020

R v Lacey [2020] ACTSC 241 (SCC 117 of 2019; SCC 148 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – causing grievous bodily harm – breach of Good Behaviour Order

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11 September 2020

Hudson v The Queen [2020] ACTCA 46

APPEAL – SENTENCE – Manifest Excess – Sentencing for multiple offences – Commonwealth and Territory offences – prospects of rehabilitation – offences committed while in custody – appeal allowed

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10 September 2020

Talent v Talent [2020] ACTSC 240

SUCCESSION – FAMILY PROVISION – Extension of time – where delay in bringing application for family provision – where no evidence as to a satisfactory explanation for the delay but delay is short – where no prejudice as a result of the delay – where there is an arguable case for provision – extension of time granted.

SUCCESSION – FAMILY PROVISION – Where no provision was made for the plaintiff under the will – where plaintiff is the adult son of the testator, is bankrupt, has a form of leukaemia and was living with the testator at the time of her death – where primary beneficiary under the will accepts provision ought be made – consideration of what constitutes proper provision.

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9 September 2020

Hall v Martin (No 2) [2020] ACTSC 239

COSTS – APPLICATION FOR COSTS – Plaintiff seeks costs on a solicitor and client basis pursuant to r 1010(2)(a) – defendant opposes order and seeks the court to use its discretion to order otherwise – offer was an offer of compromise – offer towards conclusion of the hearing – parties had an understanding of the strengths and weaknesses of their cases – time period for offer was reasonable in the circumstances – discretion to order otherwise should not be exercised

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9 September 2020

University of Canberra v Zierholz@UC Pty Ltd [2020] ACTCA 45

PRACTICE AND PROCEDURE – SECURITY OF COSTS – whether security for costs should be ordered – where appellant is impecunious – appropriate amount of security

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7 September 2020

R v Stott [2020] ACTSC 5 (SCC 59 of 2019; SCC 60 of 2019)

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

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4 September 2020

R v Evans [2020] ACTSC 197

CRIMINAL LAW – Application – identification evidence – admissibility – photo board identification by the complainant – consideration of s 235(1) of the Crimes Act 1900(ACT) – whether evidence obtained by police undertaken in contravention of Australian law – consideration of probative value of evidence – whether desirability of admitting the evidence outweighs undesirability of admitting the evidence

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4 September 2020

R v Mynott [2019] ACTSC 395

CRIMINAL LAW – PRE-TRIAL APPLICATION – application to adduce tendency evidence – four counts sexual intercourse without consent – whether tendency evidence has significant probative value – whether probative value substantially outweighs any prejudicial effect to the accused

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4 September 2020

SMA v John XXIII College (No 3) [2020] ACTSC 236

CIVIL LAW – APPLICATION – Costs – Offers of compromise – acceptance period – reasonable in the circumstances – stay pending appeal

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4 September 2020

I.C. Formwork Services Pty Limited v Moir (No 2) [2020] ACTCA 44

APPEAL – WORKERS COMPENSATION – Determination of substantive law applicable to common law claim – “State or Territory of connection” – application of tests in s 36B(3) Workers Compensation Act 1951 (ACT) – whether respondent “usually works in the ACT” – respondent usually works in the ACT and NSW – appeal upheld PRACTICE AND PROCEDURE – DECLARATORY JUDGMENTS – nature of – whether final or interlocutory – declaration is necessarily final

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4 September 2020

Weldon v Polosak [2020] ACTSC 234

CRIMINAL LAW – APPEAL – Judgment and Punishment – sentence – where sentence previously suspended after a period of imprisonment – where subsequent breach of good behaviour order and further crimes committed – where error established in imposing totality of sentence rather than remainder of sentence – where fresh evidence admitted relevant to rehabilitation – re exercise of sentencing discretion

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3 September 2020

R v Anderson [2020] ACTSC 235 (SCC 214 of 2009)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – abolition of periodic detention – re-sentence – sentence of imprisonment

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2 September 2020

R v Mynott (No 2) [2020] ACTSC 232 (SCC 20 of 2019, SCC 263 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Offences against sex workers –Consent negated by fraudulent misrepresentation

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27 August 2020

TS v DT [2020] ACTCA 43

APPEAL – FAMILY VIOLENCE – Appeal of Family Violence Order – Whether primary Judge attempted to cover up Magistrate’s alleged misconduct – whether primary Judge erred in finding no miscarriage of justice – improper application of Browne v Dunn principle – lack of consideration of personal circumstances

EVIDENCE – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether Failure to Adduce Due to Mistake or Oversight – Self-represented litigant – relevance

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27 August 2020

R v Featherstone [2019] ACTSC 218 (SCC 164 of 2018; SCC 165 of 2018; SCC 166 of 2018)

CRIMINAL LAW  –  JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possess prohibited firearm – aggravated robbery – take motor vehicle without consent – aggravated burglary – damage property – driving motor vehicle without consent – possess knife without reasonable excuse – possess ammunition – sentencing of co-accuseds – extensive criminal history – history of mental illness – dismissal of other charges

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26 August 2020

Justar Property Group Pty Ltd v Chase Building Group (Canberra) Pty Ltd [2020] ACTSC 231

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal from adjudicator’s decision under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – no manifest error of law on the face of the decision – whether there was strong evidence of an error of law – jurisdictional error – whether there was strong evidence that the question of law could substantially add to the certainty of the law – there was not – application for leave to appeal dismissed

ADMINISTRATIVE LAW – CLAIM FOR PREROGATIVE RELIEF – Relief in the nature of certiorari – claim first raised in closing submissions – application for extension of time to commence proceedings – no special circumstances – application for extension of time dismissed

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26 August 2020

Hall v Martin [2020] ACTSC 233

CIVIL LAW – NEGLIGENCE – Personal injury – plaintiff injured when boom of crane hit him – first defendant uninsured – first defendant denied any employment relationship – assessment of the credibility of the plaintiff and the first defendant’s evidence – on the balance of probabilities the plaintiff was an employee – consideration of the medical evidence – assessment of damages

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26 August 2020

R v Saipani (No 2) [2020] ACTSC 228 (SCC 100 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary by joint commission – Home invasion – Parity and co-offenders – Co-offenders sentenced for common assault and possess weapon

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25 August 2020

R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai [2020] ACTSC 225

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – COVID-19 Emergency Response Legislation – Court ordered judge alone trial – Four co-accused – Where three accused consent to the order – Right to a fair trial – Right to be tried without unreasonable delay – Orderly and expeditious discharge of court business – Interests of justice

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25 August 2020

R v Sullivan (No 2) [2020] ACTSC 215 (SCC 147 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery and attempted aggravated robbery – joint commission with his brother – subject to an intensive correction order at the time of the offences – criminal history – illicit substance use – relatively young offender – sentence of imprisonment

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25 August 2020

R v Sullivan [2020] ACTSC 214 (SCC 63 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery and attempted aggravated robbery – in joint commission with his brother – on parole at time of offences – extensive criminal history – illicit substance use – mental health diagnoses – sentence of imprisonment

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25 August 2020

Will v The Queen [2020] ACTCA 42

APPEAL – APPLICATION FOR LEAVE TO APPEAL –Application for leave to appeal out of time – consideration of the reasons for the applicant’s delay in seeking to appeal – whether the respondent will suffer prejudice in any such appeal based on delay – consideration of the prospects of success in the proposed appeal

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24 August 2020

Quayle v Smith & Nephew Surgical Pty Ltd [2020] ACTSC 229

PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – whether sufficient foundation for the causes of action identified exists – whether reasonable inquiries have been made – whether documents are in ‘possession’ of a party – whether there is a legal right to request documents from another source – whether the documents sought would help the applicant to decide whether to commence proceedings

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20 August 2020

R v Jabal [2020] ACTSC 230 (SCC 122 of 2018; SCC 130 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in trafficking of cocaine – low risk of re-offending – additional offences of drug possession – late plea of guilty – suitability of an Intensive Correction Order

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20 August 2020

R v Sutton [2019] ACTSC 284

CRIMINAL LAW – EVIDENCE – Admissibility – pre-trial application – sexual assault complainant undertook pretext telephone call to accused – police arranged for complainant to record conversation with digital voice recorder – making of telephone conversation also video recorded – admissions made by the accused – whether recording unlawfully obtained rendering admissions inadmissible – it was not

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20 August 2020

R v Sutton (No 4) [2020] ACTSC 106

CRIMINAL LAW – APPLICATION IN PROCEEDING – Application for a conditional stay of a retrial – challenge to decision of Director of Public Prosecutions to proceed with retrial – abuse of process not demonstrated – application dismissed.

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20 August 2020

R v Sutton (No 3) [2019] ACTSC 342

CRIMINAL LAW – EVIDENCE – Application to Exclude Evidence – Police record of interview – unfairly obtained – discretion to exclude – consciousness of guilt – jury directions

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20 August 2020

R v Sutton (No 2) [2019] ACTSC 340

CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s prior sexual activities – operation of ss 76, 77 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – proper matter for cross-examination about credit

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18 August 2020

Hawker v The Queen [2020] ACTCA 40

APPEAL – SENTENCE – Manifest Excess – No error established – appeal dismissed

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17 August 2020

R v NBB (No 6) [2020] ACTSC 224

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse with a person under 10 years – act of indecency on a person under 10 years – Crown case largely based on complainant’s evidence – whether a reasonable doubt exists as to the reliability of the complainant’s evidence – it does – not guilty on all counts

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17 August 2020

R v NBB (No 5) [2020] ACTSC 190

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Incest with person under 10 years

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17 August 2020

R v NBB (No 4) [2020] ACTSC 161

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Sexual intercourse with a young person under the age of 10 years – sexual intercourse with a young person under the age of 16 years – attempted sexual intercourse with a young person under the age of 16 years – age of criminal responsibility - verdict

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17 August 2020

R v NBB (No 3) [2020] ACTSC 108

CRIMINAL LAW – EVIDENCE – Subpoenas – application for leave to disclose protected confidences – psychologist’s records – not records of the complainants – public interest in ensuring sexual abuse victims receive counselling therefore not relevant – material of limited probative value – leave to disclose redacted versions of the material.

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17 August 2020

R v NBB (No 2) [2020] ACTSC 85

CRIMINAL LAW – PRE-TRIAL APPLICATION – application to adduce tendency evidence – 22 charges of sexual offending against children – three separate complainants – whether an accused person known to the complainant did the acts alleged by the Crown – whether evidence has significant probative value – consideration of whether evidence of each complainant is cross-admissible with regard to charges alleging an offence against a different complainant – application of McPhillamy v The Queen [2018] HCA 52; 92 ALJR 1045

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17 August 2020

R v NBB [2020] ACTSC 75

CRIMINAL LAW – EVIDENCE – Leave to issue subpoenas – disclosure of protected confidences – Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – legitimate forensic purpose – whether court satisfied an arguable case that the documents would materially assist applicant’s case in the proceedings – possible contamination of complaints by knowledge of other complaints – appropriate to grant leave to issue a subpoena to named person

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17 August 2020

R v Ayuel [2020] ACTSC 213 (SCC 336 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – act endangering health – plea of guilty – mid range objective seriousness – limited criminal history – young offender – good prospects of rehabilitation – partially suspended sentence of imprisonment

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14 August 2020

R v Evans; R v Stott [2020] ACTSC 220

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – unlawful confinement – intentionally inflicting actual bodily harm – make demand accompanied by a threat – attempt to detain another with the intent to hold for an advantage – consideration of the evidence

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13 August 2020

Ryrie v Tanner (No 3) [2020] ACTSC 223

PRACTICE AND PROCEDURE – COSTS – Application for costs on an indemnity basis – Whether the plaintiff’s offer was a valid “mandatory final offer” – Whether it was unreasonable for defendant to reject plaintiff’s “mandatory final offer” – Consideration of “pain and suffering” and “non-economic loss”

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13 August 2020

R v Bennett; R v Simonds [2020] ACTSC 221 (SCC 308, 309, 311, 312 of 2019; SCC 35 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated burglary – Burglary – Dishonestly take motor vehicle – Dishonestly receiving stolen property – Driving a motor vehicle dishonestly taken – Transfer offence – Theft – Property damage – Unlawful possession of stolen property – “Ram raid” aggravated burglary – Offences while on conditional liberty

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13 August 2020

R v Rowe [2018] ACTSC 381 (SCC 86 of 2018; SCC 87 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – common assault – pleas of guilty – consideration of alcohol abuse – consideration of intensive correction order

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13 August 2020

R v Steen [2020] ACTSC 222 (SCC 150 of 2019; SCC 151 of 2019; SCC 207 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – 21 counts burglary – 19 counts theft – two counts possession of stolen property – one count going equipped for burglary – one count damaging property – pleas of guilty – some moderation of personal and general deterrence – bleak prospects for rehabilitation – importance of community protection

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13 August 2020

R v Tuifua [2020] ACTSC 173 (SCC 288 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – re-sentence – theft – driving motor vehicle without consent – pleas of guilty – breach of good behaviour orders – guarded prospects for rehabilitation – consideration of drug and alcohol abuse

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13 August 2020

R v KN [2020] ACTSC 218 (SCC 153 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sentence of a young person – youth justice principles – aggravated burglary – arson – damage property – extensive property damage – history of childhood disadvantage – guilty plea – imprisonment – suspended sentence – rehabilitation

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12 August 2020

Faris v Savage (No 2) [2020] ACTSC 219

APPEAL – Appeal from Magistrates Court – single ground of appeal – whether appellant’s former solicitor advocate incompetent – whether incompetence gave rise to miscarriage of justice

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12 August 2020

KN v Frizzell [2020] ACTSC 217

APPEAL AND RE-SENTENCE – APPEAL – Appeal from Childrens Court – appeal against sentence – sentence of a young person – whether sentence manifestly excessive – whether Magistrate considered alternatives to imprisonment – whether rehabilitation properly considered – resentence

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11 August 2020

R v Sutton (No 5) [2020] ACTSC 206

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in proceeding – Latent duplicity in counts of indictment

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7 August 2020

Classic Deco Pty Ltd v Fine Touch Pty Ltd [2020] ACTSC 209

BUILDING AND CONSTRUCTION – DEEDS – Deeds of release – dispute between two subcontractors – whether deeds voidable by reason of economic duress – whether there was any evidence of illegitimate pressure – there was not – deeds defeat plaintiff’s claim

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7 August 2020

SMA v John XXIII College [2020] ACTSC 198

CIVIL LAW – EVIDENCE – Admissibility of First-Hand Hearsay – Maker available – private conversation recorded – whether recording is admissible

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7 August 2020

SBT v Colvin [2020] ACTSC 216

APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of theft – appellant is a young person – Crown concession that magistrate erred in admitting evidence of admissions  – conviction not dependent upon such evidence – whether magistrate erred in admitting recognition evidence by police officers – whether finding of guilty is unsafe and unsatisfactory

EVIDENCE – IDENTIFICATION EVIDENCE – whether recognition evidence of police officers relevant in accordance with Smith v The Queen [2001] HCA 50; 206 CLR 650 – whether opinion evidence of recognition admissible as law opinion under Evidence Act 2011 (ACT) s 78 – evidence admitted

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7 August 2020

SMA v John XXIII College (No 2) [2020] ACTSC 211

TORT LAW – NEGLIGENCE – Breach of Duty of Care Owed – Residential college duty to student – failure to stop drinking event – direction issued to students to leave the college in intoxicated state – failure to properly handle sexual assault complaint

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7 August 2020

R v Hartley [2020] ACTSC 210 (SCC 137 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – genuine remorse – early plea – mental health of offender

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7 August 2020

Kuol v Pruckner [2020] ACTSC 207

CRIMINAL LAW – BAIL APPLICATION – Whether Special or Exceptional Circumstances Exist – Amelioration of further offending or anti-social behaviour – whether benefit of a successful appeal would be lost owing to delay in being heard

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6 August 2020

R v McIntosh [2020] ACTSC 208 (SCC 6 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – good prospects of rehabilitation – insight into offending – no criminal record

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6 August 2020

Jornad Pty Ltd v Sapme Pty Ltd (No. 2) [2020] ACTSC 201

CONSUMER LAW – MISLEADING OR DECEPTIVE CONDUCT – Sale of business – claim against vendor pursuant to s 18 of Sch 2 of the Competition and Consumer Act 2010 (Cth) – whether vendor made misrepresentations as to turnover, profitability and the payment of rent – whether purchaser relied on vendor’s statements – where business failed – whether purchaser contributed to the failure of the business

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4 August 2020

Mckie v Chard [2020] ACTSC 205

APPEAL FROM MAGISTRATES COURT – SENTENCE – Manifest Excess – Failure to give reasons – whether the sentence imposed was cumulative – repetition of violence factor

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3 August 2020

R v Booth; R v Fisher [2020] ACTSC 204

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the parties – interests of justice – fair trial

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30 July 2020

On Forbes Developments Pty Ltd v Chase Building Group (Canberra) Pty Ltd (No 2) [2020] ACTSC 199

Costs – Neither party clearly more successful than the other – No order as to costs

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29 July 2020

R v FT [2020] ACTSC 203 (SCC 13 of 2020; SCC 57 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – difficulty with Child and Youth Protection Services – opportunity for rehabilitation

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29 July 2020

R v Collaery (No 7) [2020] ACTSC 165

NATIONAL SECURITY – APPLICATION FOR ORDERS PROHIBITING DISCLOSURE – Nature of task under s 31(7) and (8) of National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) – Real risk of prejudice to national security – no substantial adverse effect on defendant’s right to fair hearing – orders consistent with the Attorney-General’s certificate should be made

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29 July 2020

R v Collaery (No 8) [2020] ACTSC 200

NATIONAL SECURITY – STATUTORY INTERPRETATION – Section 27(3) hearing under the National Security Information (Criminal and Civil Proceedings Act) 2004 (Cth) – where there will be disclosure of national security information – whether ss 24 and 25 of the Act apply to the hearing – whether the hearing is a “federal criminal proceeding” under the Act – it is – ss 24 and 25 apply

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29 July 2020

Kostov v The Society of St Vincent de Paul Pty Ltd [2020] ACTCA 38

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal out of time – No impediment to filing appeal within time - No reasonable prospects of success

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28 July 2020

R v Hambesis [2020] ACTSC 202 (SCC 339 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – assault occasioning actual bodily harm – theft – plea of guilty – limited criminal history – suspended sentence – good behaviour order

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28 July 2020

R v Collaery (No 6) [2020] ACTSC 164

PARLIAMENTARY PRIVILEGE – NATIONAL SECURITY – affidavits relying on parliamentary reports and statements made in parliament – reports and statements cited to support truth of facts in affidavit are inadmissible – submissions before the International Court of Justice citing parliamentary reports – reports cited only to prove content are admissible – admissible media reports – the  material the subject of possible privilege only of peripheral importance to the proceedings

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24 July 2020

R v NC [2020] ACTSC 196

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – possess firearm – trafficking in a controlled drug other than cannabis namely 3,4-methylenedioxymethylamphetamine – three summary charges – consideration of the evidence

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23 July 2020

R v Finau (No 2) [2020] ACTSC 193 (SCC 245 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – “Date rape”

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23 July 2020

R v Burch [2020] ACTSC 192 (SCC 67 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth offences – Possessing child abuse material – Using carriage service to transmit child pornography material – COVID-19 pandemic

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22 July 2020

R v Masina (No 3) [2020] ACTSC 154

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – acts of indecency – strong complaint and tendency evidence – temporally confined nature of allegation – accused had alibi for specific dates – satisfied of each element of the offences – reasonable doubt about whether offending occurred in the period specified on indictment – not guilty

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22 July 2020

R v Harmouche [2020] ACTSC 194 (SCC 67 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in a controlled drug other than cannabis – Guilty plea – COVID-19 pandemic

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20 July 2020

Subasic v Hewlett-Packard Australia Pty Ltd (No 2) [2020] ACTSC 195

COSTS – PRE-LITIGATION OFFER OF COMPROMISE – Whether offer was a valid Calderbank offer – whether it was unreasonable to reject the offer – where offer did not sufficiently disclose anticipated cause of action – where later offer made pursuant to Court Procedure Rules 2006 (ACT), r 1002 – where orders made were no less favourable than the offer – solicitor and client costs awarded from date of formal offer

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16 July 2020

Ezekiel-Hart v Australian Capital Territory [2020] ACTCA 32

APPEAL – TORT – Defamation – whether the respondent had a duty of care to protect the appellant from wrongdoing by the Law Society and its employees – whether the respondent could control the Law Society – whether any error on the part of the primary judge has been made out

APPEAL – HUMAN RIGHTS – whether the respondent breached provisions of the Human Rights Act 2004 (ACT) – in particular, provisions stating the appellant’s right to freedom from racial discrimination – whether any errors of the decision of the primary judge identified

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16 July 2020

R v Horan [2020] ACTSC 189 (SCC 310 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – damaging property – pleas of guilty – consideration of commencement of drug addiction at early age – rehabilitation very significant sentencing consideration

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15 July 2020

R v Saipani [2020] ACTSC 191

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Aggravated burglary – Joint commission

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15 July 2020

R v Ogle (No 3) [2020] ACTSC 188 (SCC 120 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – breach of good behaviour order – further offence of driving with a prescribed drug in oral fluid – strong subjective circumstances – resentence – intensive correction order

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14 July 2020

R v Whitelock [2019] ACTSC 396 (SCC 230 of 2018; SCC 232 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of prohibited weapon – possession of a drug of dependence for the purpose of sale or supply – whether sentence should be served by intensive corrections order

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14 July 2020

R v EC; R v KT; R v Sharp [2019] ACTSC 364 (SCC 169 of 2018; SCC 218 of 2018; SCC 185 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three co-offenders – Cameron Sharp charged with aggravated burglary and assault occasioning actual bodily harm – EC charged with being knowingly concerned in the offence of aggravated burglary – KT charged with aiding and abetting the offence of aggravated burglary – pleas of guilty – reasonable prospects for rehabilitation

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14 July 2020

Massouras v Kone Elevators Ptd Ltd (No 2); Pattinson v Kone Elevators Ptd Ltd (No 2); Shipton v Kone Elevators Ptd Ltd (No 2); Soesman v Kone Elevators Ptd Ltd (No 2) [2020] ACTSC 181

PRACTICE AND PROCEDURE – COSTS – costs applications made by the plaintiffs, first defendant and the second to eleventh defendants – applications by the plaintiffs that the first defendant be ordered to pay any costs which the plaintiffs may be liable to pay to the second to eleventh defendants – consideration of what orders should be made with regard to the second to eleventh defendants’ notice to the first defendant claiming contribution or indemnity

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14 July 2020

Gooda v Burrows [2020] ACTSC 187

APPEAL – APPEAL FROM MAGISTRATES COURT – Whether verdict unreasonable – Identification evidence

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13 July 2020

KA v Linden [2020] ACTSC 182

APPEAL – APPEAL FROM MAGISTRATES COURT – Act of indecency – Whether verdict was unreasonable – Whether Magistrate erred in considering complainant’s credit in directed verdict charge – Liberato direction

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13 July 2020

R v Baker [2020] ACTSC 186 (SCC 291 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Act endangering life – Possession and use of unauthorised firearm – Assault occasioning actual bodily harm – Repeat offender

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13 July 2020

R v DU (No 4) [2020] ACTSC 174 (SCC 15 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts sexual intercourse with a young person under special care – pleas of guilty – where offences occurred in context of coaching relationship – good prospects for rehabilitation – consideration of intensive correction order

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10 July 2020

R v Butler [2020] ACTSC 170 (SCC 254 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts trafficking in a controlled drug – pleas of guilty – consideration of mental impairment and moral culpability – reasonable prospects for rehabilitation – parity – consideration of intensive correction order

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10 July 2020

R v Howsan [2020] ACTSC 172 (SCC 253 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – arson – plea of guilty – consideration of compliance with deferred sentence order

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10 July 2020

Friend v Britton [2020] ACTSC 185

DAMAGES – PERSONAL INJURY – Compensation – Motor vehicle accident - general damages – past and future economic loss – past and future medical expenses – past and future domestic assistance – extent of injuries suffered – aggravation of pre-accident conditions

Uploaded

10 July 2020

Sirl v The Queen; The Queen v Sirl [2020] ACTCA 37

APPEAL – CONVICTION – Unsafe or Unreasonable Having Regard to the Evidence – Examination of the record – whether the jury ought nonetheless to have entertained a reasonable doubt as to proof of guilt – objective evidence of phone records

APPEAL – SENTENCE – Manifestly Inadequate Sentences – Degree of accumulation – inadequate extension of nonparole period

Uploaded

10 July 2020

S and N v T [2020] ACTCA 36

APPEAL – ADOPTION – Standard of Satisfaction – Dispensation of consent – nature of hearing

Uploaded

10 July 2020

Jakaj v Kinnane [2020] ACTCA 19

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Application for certain orders preliminary to an appeal – applicant sought 23 orders, including certain declarations, undertakings and orders to produce evidence – consideration of the phrase “practice and procedure” in s 37J(1)(k) of the Supreme Court Act 1933 (ACT)

Uploaded

10 July 2020

R v Fifita [2019] ACTSC 362 (SCC 228 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – in company and armed with weapons – late plea of guilty – serious example of this type of offending – reasonable prospects for rehabilitation

Uploaded

9 July 2020

R v Nyuon [2020] ACTSC 171 (SCC 338 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – common assault – plea of guilty – mid range objective seriousness – prior criminal history – sentence of imprisonment

Uploaded

9 July 2020

R v McDowall [2020] ACTSC 184 (SCC 286 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –burglary – theft – Intensive Correction Order – reparation orders

Uploaded

8 July 2020

R v Versteeg [2020] ACTSC 180

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – sexual intercourse without consent – act of indecency without consent – penile/vaginal intercourse – dispute regarding extent and duration of penetration of complainant’s vagina – whether indication of complainant’s lack of consent to intercourse

Uploaded

7 July 2020

Millard v Williams [2020] ACTSC 179

CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal Against Sentence – Manifest excess – principles of totality – previous sentence imposed – degree of concurrency required

Uploaded

7 July 2020

Laipato v The Queen [2020] ACTCA 35

CRIMINAL LAW – APPEAL – Trial – Inconsistent verdicts – Unreasonable, unsafe and unsatisfactory verdicts – “Bad character evidence” – Where defence did not object to evidence at trial

CRIMINAL LAW – APPEAL – Sentence – Error in factual findings – Objective seriousness – Manifest excess – Resentence

Uploaded

6 July 2020

Canberra Consulting Pty Ltd v Chowindra [2020] ACTSC 177

Enforcement of contractual restrain upon cessation of employment - Interlocutory injunction granted

Uploaded

3 July 2020

R v Szabo [2020] ACTSC 175

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Recklessly inflict grievous bodily harm – intentionally and unlawfully suffocate infant – circumstantial case – expert evidence – verdict

Uploaded

3 July 2020

Featherstone v The Queen; Bloxsome v The Queen [2020] ACTCA 33

APPEAL – CONVICTION – Co-Appellants – Unsafe and unsatisfactory verdicts – unreliability of witnesses – miscarriage of justice – plea in bar – application for separate trial – applications to discharge the jury

Uploaded

2 July 2020

Turner v Carr [2020] ACTSC 176

CRIMINAL LAW – APPEAL – Severity of sentence – lengthy delay in appeal being heard – delay seemingly due to failure to engross warrant – proven rehabilitation of offender – appeal allowed – sentenced to time already served

Uploaded

1 July 2020

R v Evans; R v Reid [2020] ACTSC 169 (SCC 147 of 2019; SCC 144 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – circumstances of violence – significant injuries to victim – knowingly concerned in taking vehicle without consent – attempt to pervert the course of justice – five co-offenders – whether offenders were OMCG members at time of offending – pleas of guilty – whether impact of COVID-19 leads to more onerous conditions while incarcerated

Uploaded

1 July 2020

R v Brown [2020] ACTSC 156

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – disputed facts hearing – sexual intercourse without consent – act of cunnilingus admitted – whether two acts of digital penetration occurred

Uploaded

1 July 2020

R v Masina [2020] ACTSC 89

CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Application to adduce tendency evidence –whether the evidence has significant probative value – whether the probative value of the evidence is outweighed by its potential prejudicial effect – commonality between incident and alleged offences  – Crown case to be taken at its highest

Uploaded

30 June 2020

The Queen v Stacker [2020] ACTCA 34

APPEAL – Criminal Law – Prosecution appeal against sentence – whether sentence was manifestly inadequate – aggravated burglaries – unauthorised possession of firearm – whether residual discretion not to intervene should be exercised – re-sentence

Uploaded

29 June 2020

Bennett v Polosak [2020] ACTSC 168

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special or exceptional circumstances – pregnancy – upcoming release date

Uploaded

29 June 2020

Seselja v Reardon [2020] ACTSC 167

TORTS – MOTOR VEHICLE ACCIDENT – Whether the first defendant breached his duty of care – whether the first defendant was acting in the ‘agony of the moment’ – where a breach of duty was found DAMAGES – PERSONAL INJURY – Compensation – where the plaintiff suffered an injury to her right hip due to the particular circumstances of the accident

Uploaded

25 June 2020

R v PU [2018] ACTSC 373 (SCC 56 of 2018; SCC 57 of 2018; SCC 163 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two offences of trafficking in a controlled drug other than cannabis – consideration of subjective features – relatively minor criminal history – on conditional liberty at time of offending – consideration of Pre-Sentence Report – history of substance abuse – consideration of psychological assessment report – pleas of guilty entered in the Magistrates Court

Uploaded

25 June 2020

Fuller v Allen [2020] ACTSC 32

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Personal injury - ex parte application – motor vehicle accident – breach of care – damages arising from injury – surveillance footage – application for leave to withhold service

Uploaded

25 June 2020

Fuller v Allen (No 2) [2020] ACTSC 119

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – Personal injury - ex parte application – motor vehicle accident – application for leave to withhold service – second application

Uploaded

25 June 2020

De Gruchy v The Owners Units Plan No. 3989 (No. 2) [2020] ACTSC 166 De Gruchy (No 2)

COSTS – Court Procedure Rules 2006 (ACT), r 1002 – whether offer made was a genuine offer of compromise – whether orders made were no less favourable than the offer – whether offer was a valid Calderbank offer – whether it was unreasonable to reject the offer

Uploaded

23 June 2020

R v French [2020] ACTSC 133 (SCC 65 of 2019; SCC 66 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two counts of trafficking in a controlled drug other than cannabis – one count of dealing in the proceeds of crime – pleas of guilty – drug and alcohol addictions – mental health conditions – reasonable prospects for rehabilitation if mental health issues and substance addictions addressed

Uploaded

23 June 2020

On Forbes Developments Pty Ltd v Chase Building Group (Canberra) Pty Ltd [2020] ACTSC 163

CIVIL LAW – Failure by the Principal to pay adjudication amount under the Building and Construction Industry (Security of Payment) Act 2009 (ACT) – suspension of work by the Builder under the Act – subsequent determination by expert under the contract resulting in the Builder owing the Principal more than the adjudication amount – date at which the Builder’s right to suspend work comes to an end – it comes to an end at the time of the unqualified acknowledgement by the Principal of the set off of the adjudication amount against the debt owed to the Principal

Uploaded

23 June 2020

Allcool Facilities and Maintenance Pty Ltd v CCS FM Pty Ltd [2020] ACTSC 162

PRACTICE AND PROCEDURE – SECURITY FOR COSTS – Application for security for costs – corporate plaintiff – whether there are reasons to believe that the plaintiff would be unable to pay the defendant’s costs if ordered to do so – whether delay in bringing application should result in its dismissal – discretionary considerations – consideration of the appropriate amount of security.

Uploaded

23 June 2020

R v Fairclough (No 2) [2020] ACTSC 134 (SCC 91 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally and unlawfully using an offensive weapon likely to endanger human life or cause a person grievous bodily harm – plea of guilty – excessive self-defence – prospects for rehabilitation guarded

Uploaded

23 June 2020

R v Masina (No 2) [2020] ACTSC 152

CRIMINAL LAW – EVIDENCE – Cautions – admissions – requirement to translate caution – police interview with accused – accused fluent in Samoan but not English – telephone interpreter used – Samoan conversations with interpreter subsequently translated – accused did not understand caution – accused’s later conduct in interview consistent with understanding – portion of transcript prior to point of understanding inadmissible – subsequent portion not inadmissible because police asked multiple questions after gaining accused’s permission to ask “one more question”.

Uploaded

23 June 2020

R v Kemppainen (No 2) [2020] ACTSC 159 (SCC 141 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – Intensive correction order assessment – Public health emergency

Uploaded

23 June 2020

R v Latu (No 2) [2020] ACTSC 160 (SCC 193 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Resentence – Breach of good behaviour order

Uploaded

22 June 2020

Watson v The Queen (No 2) [2020] ACTCA 30

CRIMINAL LAW – APPEAL – Conviction – Whether primary judge erred in law in refusing appellant to rely on proposed defences – whether proposed defences tenable in law and fact – whether the primary judge misdirected himself – whether the defendant was forced to enter guilty pleas and did not receive a fair trial

CRIMINAL LAW – APPEAL – Sentence – Manifest excess – recommendation of full-time imprisonment – loss and reversal of onus – breach of trust as aggravating feature – good character

Uploaded

19 June 2020

R v TX [2020] ACTSC 157 (SCC 264 of 2019 and SCC 265 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – possess prohibited firearm – plea of guilty – disadvantaged background – guarded prospects of rehabilitation

Uploaded

18 June 2020

Polleycutt v Taylor [2020] ACTSC 158

PRACTICE & PROCEDURE – COSTS – re-exercise of costs discretion on appeal – fixed sum costs order appropriate

Uploaded

16 June 2020

R v Finau [2020] ACTSC 155

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – Sexual assault in the second degree – Sexual intercourse without consent – “Date rape”

Uploaded

12 June 2020

Stanford v Dermejian [2020] ACTSC 151

DAMAGES – PERSONAL INJURY – motor vehicle accident – where the accident was minor – whether the plaintiff’s ongoing symptoms were caused by injury or an underlying degenerative condition

DAMAGES – PAST AND FUTURE LOSS OF EARNING CAPACITY – whether disability insurance payments should be taken into account in assessment of damages – whether damages should be reduced

EVIDENCE – HISTORIES IN MEDICAL REPORTS – Application under s 136 of the Evidence Act 2011 (ACT) to limit use – application refused

Uploaded

11 June 2020

R v Bartley; R v Deng; R v McCauley [2019] ACTSC 392 (SCC 54 of 2019; SCC 53 of 2019; SCC 52 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pleas of guilty – three offenders – two counts recklessly inflicting grievous bodily harm by joint commission – one count assault occasioning actual bodily harm by joint commission – three victims – where offences occurred in daylight in place visible to public – where offending occurred in context where Family Violence Order taken out by mother of two of the offenders against one of the victims – consideration of hardship to two offenders’ families – respective roles of offenders distinguished

Uploaded

11 June 2020

Jakaj v Kinnane (No 2) [2020] ACTCA 28

JUDICIAL REVIEW – APPEAL – Appeal from primary judge’s judicial review of a decision of a magistrate – whether Territory courts’ jurisdiction depends upon judges and magistrates swearing or affirming allegiance to the Queen – whether the prosecution must give evidence that legislation is validly passed – whether appellant discriminated against under s 117 of the Constitution – whether prosecution required to be brought in the name of the Crown – appeal dismissed

JUDICIAL REVIEW – APPEAL – Notice of Appeal in the form of written submissions – jurisdictional point taken but no oral submissions made in support of the appeal – whether reasons required to be given for dismissal of appeal

Uploaded

11 June 2020

Kibblewhite v Buik [2020] ACTSC 132

APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of contravening family violence order – appellant self-represented at sentencing hearing – appellant suffers from anxiety and autistic spectrum disorder – whether magistrate failed to consider making a non-conviction order – her Honour did fail to do so – specific error – further evidence admitted on appeal – appellant resentenced without conviction

Uploaded

11 June 2020

R v CT (No 2) [2018] ACTSC 73

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for the disclosure of protected confidence material

Uploaded

11 June 2020

R v CT [2018] ACTSC 69

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for the Disclosure of Protected Confidence Material – Application to set aside a subpoena

Uploaded

11 June 2020

Ryan v Vizovitis; Vizovitis v Ryan [2020] ACTSC 150

CIVIL LAW – APPLICATION IN PROCEEDING – Costs – Fixed costs order – rule 1702 agreement – rule 1721 order

Uploaded

10 June 2020

Stone Living Pty Ltd v 3 Property Group 9 Pty Ltd [2020] ACTSC 149

CAVEATS – application to extend caveats over land – whether there is a serious question to be tried – building dispute – where standard building contract conditions entitled builder to charge over the building site – whether the balance of convenience favours the removal of the caveats – where security offered by separate corporate entity – whether caveats should be extended indefinitely

Uploaded

10 June 2020

R v Cattle (No 3) [2020] ACTSC 135 (SCC 162 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Act of indecency – Course of conduct – Historical child sexual offences – Position of authority – Where offender is in serious ill health – Consideration of hardship of particular penalty

Uploaded

10 June 2020

R v Singh [2020] ACTSC 35 (SCC 251 of 2019; SCC 252 of 2019; SCC 317 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography – possession of child exploitation material – pleas of guilty – reasonable prospects for rehabilitation – consideration of immediate terms of imprisonment for offences of this type

Uploaded

10 June 2020

R v MC [2020] ACTSC 128 (SCC 56 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – young person – general deterrence versus rehabilitation prospects

Uploaded

9 June 2020

R v Williams (No 2) [2020] ACTSC 127 (SCC 235 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – plea of guilty – consideration of Intensive Correction Order

Uploaded

9 June 2020

R v Williams [2019] ACTSC 383 (SCC 235 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach of Good Behaviour Orders – consideration of general deterrence and community protection

Uploaded

9 June 2020

Forster-Jones v The Queen [2020] ACTCA 31

APPEAL – CRIMINAL LAW – Appeal against sentence – where the Crown concedes that an error occurred – where the sentencing judge did not assess the objective seriousness – resentence

Uploaded

9 June 2020

R v Henderson [2020] ACTSC 146

CRIMINAL LAW – EVIDENCE – Hearsay Rule – Maker unavailable exception – witness not compellable due to domestic partner objection – no notice given to defence – probative value outweighed by prejudice to accused

Uploaded

9 June 2020

Gang v You (No. 2) [2020] ACTSC 148

COSTS – First defendant partly successful in Application in Proceeding – whether the plaintiff should be ordered to pay the first defendant’s costs now – whether the circumstances justify an order that the costs be the first defendant’s costs in the cause.

Uploaded

5 June 2020

Paule v McKay [2020] ACTSC 145

PRACTICE & PROCDURE – Application to amend originating proceedings and statement of claim – no need for claim for interlocutory relief to be added – proposed amendment of statement of claim comprehended by original pleading – amendments allowed

Uploaded

5 June 2020

R v Henderson (No 2) [2020] ACTSC 147

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Traffic in controlled drug other than cannabis – possession of property suspected of being proceeds of crime – drive while licence suspended – circumstantial case – whether the accused had actual knowledge of the presence of the drug – reasonable conclusion inconsistent with guilt – verdict

Uploaded

5 June 2020

ZL v Corey [2020] ACTSC 143

APPEAL AND NEW TRIAL – APPEAL – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether further evidence should be admitted – whether Magistrate considered alternatives to imprisonment – whether s 17 disposition appropriate – re-sentence

Uploaded

5 June 2020

R v Tahana [2020] ACTSC 124 (SCC 77 of 2018; SCC 79 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – one rolled-up count obtaining property by deception – plea of guilty – guarded prospects for rehabilitation – significant history of similar offending

Uploaded

5 June 2020

R v IS (No 2) [2019] ACTSC 390

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – statutory alternative charges of assault – nine transferred charges of assault – crown's case based almost exclusively upon the complainant’s evidence – accused gave evidence – self-defence raised – consideration of the evidence

Uploaded

4 June 2020

R v Smith (a pseudonym) [2020] ACTSC 142

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – sexual intercourse without consent – act of indecency – accused and complainant were young persons – previous consensual sexual activity – strong complaint evidence – guilty on all counts

Uploaded

3 June 2020

R v McCurley [2020] ACTSC 140 (SCC 164 of 2019; SCC 307 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – five counts aggravated burglary – one count burglary – two counts attempted aggravated burglary by joint commission – two counts theft – one count theft by joint commission – two counts riding in a motor vehicle without consent – one count driving a motor vehicle without consent – one count taking a motor vehicle without consent – two counts causing damage to property by fire by joint commission – one count damaging property by joint commission – one count damaging property – pleas of guilty – general and personal deterrence – guarded prospects for rehabilitation

Uploaded

3 June 2020

KD v Gillard [2020] ACTSC 144

APPEAL – GENERAL PRINCIPLES – Appeal from Magistrate – Appeal against sentence – re-sentencing – breach of good behaviour order

Uploaded

2 June 2020

Foote v Coroner’s Court of the ACT [2020] ACTSC 141

CORONERS – s 93 of the Coroners Act 1997 (ACT) – statutory review of findings made at an inquest – whether denial of procedural fairness – whether new evidence – whether insufficiency of enquiry – whether fraud or other error – whether insufficient consideration of public health and safety – whether it is in the public interest or interests of justice to quash the inquest

Uploaded

29 May 2020

R v UD (No 3) [2020] ACTSC 139

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury and Judge Alone Trials – Emergency legislation – court ordered judge alone trial – absence of consent by the accused – reconsideration of decision to order a judge alone trial

Uploaded

29 May 2020

Garrett-Jones v Kendall [2020] ACTCA 27

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Appeal from an interlocutory decision – decision restrained solicitor from acting for executor in probate proceedings – where solicitor was involved in making of contested will – where solicitor’s evidence will be of significance in substantive hearing – leave to appeal dismissed

Uploaded

28 May 2020

Millard v Australian Capital Territory [2020] ACTSC 138

PROCEDURE – COSTS – Urgent injunction

Uploaded

28 May 2020

Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No. 4) [2020] ACTSC 131

PRACTICE AND PROCEDURE — Costs — where plaintiff unsuccessful in major claim but successful in one of four minor claims — where plaintiff awarded nominal damages of $20 —  where plaintiff sought costs order in its favour — whether plaintiff “substantially successful” — whether defendant “bound to fail” in minor claim — whether defendant could have avoided proceedings — whether defendant took unreasonable approach to particulars — plaintiff’s contribution to “unnecessary complexity” — significance of level of nominal damages awarded — whether plaintiff had other “realistic lawful options” in relation to successful claim.

PRACTICE AND PROCEDURE — Costs — where plaintiff unsuccessful in major claim but successful in one of four minor claims — where plaintiff awarded nominal damages of $20 — where plaintiff sought costs order in its favour — Leases (Commercial Tenancies) Act 2001 (ACT) — parties to meet own costs unless court orders otherwise — public policy concerns — risk of discouraging tenants’ claims — Court Procedures Rules 2006 (ACT) — court may attribute specified percentage of costs of proceeding to specified issue or part of proceeding — desirability of avoiding costs order requiring assessment of costs of both parties.

PRACTICE AND PROCEDURE — Costs — application by plaintiff for stay of any costs order — intention to appeal not as such a basis for staying costs order — no claim by plaintiff of hardship, impact on business, or delay in hearing of appeal — no basis for staying costs order.

Uploaded

28 May 2020

Shipton v Kone Elevators Pty Ltd [2020] ACTSC 129

PRACTICE AND PROCEDURE – JUDGMENT AND ORDERS – Error in judgment – rr 1613 and 6906 of the Court Procedure Rules 2006 (ACT) – judgment entered for the plaintiff on 3 April 2020 – judgment neglected to address plaintiff’s claim for future out of pocket expenses – amending the judgment to rectify oversight – consideration of plaintiff’s claim for future out of pocket expenses

Uploaded

28 May 2020

R v Millard (No 2) [2019] ACTSC 393 (SCC 237 of 2015)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breaching of orders

Uploaded

28 May 2020

R v KT [2020] ACTSC 136

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special circumstances including COVID-19 pandemic – poor record of compliance with bail – substantial surety and security offered

Uploaded

28 May 2020

R v NI [2020] ACTSC 137

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge Alone Trial – Threat to kill – threat made to forensic psychiatrist – threat alleged to be in the present tense – contrary evidence of the accused – assertion of past tense – verdict

Uploaded

28 May 2020

R v Lutze [2020] ACTSC 121 (SCC 91 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – one count of aggravated robbery by joint commission – one count of aggravated burglary by joint commission – consideration of personal deterrence – reasonable prospects for rehabilitation

Uploaded

28 May 2020

R v Lau [2020] ACTSC 120 (SCC 92 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – one count of aggravated robbery by joint commission – one count of aggravated burglary by joint commission – consideration of personal and general deterrence – poor prospects for rehabilitation

Uploaded

27 May 2020

R v Middleton (No 2) [2020] ACTSC 123 (SCC 283 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – plea of guilty – two counts engaging in sexual intercourse with a young person under the age of 10 years – three counts engaging in sexual intercourse with a young person under the age of 16 years – four counts committing an act of indecency on a person under the age of 10 years – original judge misinformed about maximum penalty – fresh evidence – impact of mental impairment on offending – consideration of community protection

Uploaded

27 May 2020

R v Griffiths (No 2) [2020] ACTSC 118 (SCC 242 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – NOMINATED TERM – s 302 of the Crimes Act – whether the Court would have imposed a sentence of imprisonment if the accused had not been acquitted – what the nominated term of sentence would be if the accused had been found guilty – approach taken with respect to nominated term – objective and subjective seriousness of offences

Uploaded

26 May 2020

In the Estate of Jansen [2020] ACTSC 130

SUCCESSION – PROBATE – Application for declaration under s 11A Wills Act 1968 (ACT) – purported witnesses not present when will signed by testator – no evidence from those purported witnesses given for the application – whether rule 3030 of the Court Procedures Rules applies – it does not – requirements of s 11A satisfied

Uploaded

22 May 2020

Head v Evans [2020] ACTCA 26

APPEAL – APPEAL FROM MAGISTRATES COURT TO SINGLE JUDGE – Appeal from single judge to Court of Appeal – arrest of passenger in vehicle – whether arrest lawful

Uploaded

22 May 2020

R v Livas [2020] ACTSC 34

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – no prior remand – application for offender to be remanded in custody on entry of guilty plea – presumption of bail – likelihood of full-time custody

Uploaded

21 May 2020

R v Douch [2020] ACTSC 126 (SCC 23 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflict grievous bodily harm – caused a fractured jaw and displaced teeth – poor criminal history – offender not at a crossroads – plea of guilty – sentence of imprisonment

Uploaded

21 May 2020

Council of the Law Society of the Australian Capital Territory v Giles (No 2) [2020] ACTSCFC 2

Procedure - Costs - The defendant is to pay the plaintiff's costs

Upoaded

19 May 2020

R v Livas (No 2) [2020] ACTSC 116 (SCC 77 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – culpable driving causing death – negligence – death of a child – offender was a professional truck driver – undiagnosed sleep apnoea – on notice as to possible sleep apnoea and failed to attend referrals – failed to inform employer of possible diagnosis – prior criminal history – full-time imprisonment

Uploaded

19 May 2020

R v Lindsay [2020] ACTCA 25

CRIMINAL LAW – APPEAL – Whether sentence manifestly inadequate – Sexual intercourse without consent – Where offender has mental health issues – Where mental health issues affect moral culpability

Uploaded

14 May 2020

R v Jabal; R v Jabal; R v Poulakis [2019] ACTSC 319

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – drug importation allegations – five accused awaiting trial – fourteen charges contained in a single indictment – some charges allege joint offences and others relate to the individual accused – balancing considerations of fairness to the accused and the public interest

Uploaded

14 May 2020

R v Yavuz [2020] ACTSC 117

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – drug importation allegations – five accused awaiting trial – fourteen charges contained in a single indictment – some charges allege joint offences and others relate to other accused

Uploaded

14 May 2020

R v Shearer [2020] ACTSC 100 (SCC 24 of 2019; SCC 25 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – attempted robbery of vehicles – took a vehicle without consent  – culpable driving causing grievous bodily harm – taken to hospital in custody – attempted to escape hospital – took possession of police firearm and discharged firearm – assault occasioning actual bodily harm of a police officer – offender under the influence of methamphetamine at time of offending – long-term user of methamphetamine – offences committed whilst subject to good behaviour orders – significant criminal history – low prospects of rehabilitation – sentence of full-time imprisonment

Uploaded

14 May 2020

R v Nozhat [2018] ACTSC 317

CRIMINAL LAW – Practice and Procedure – Application for a stay of proceedings – failure of the Crown to disclose material in a timely manner – trial proceedings vacated – whether the trial proceedings should be stayed pending costs paid to the accused as a result of the trial proceedings being vacated

Uploaded

14 May 2020

R v IS [2019] ACTSC 389

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – No case submission – Trial by judge alone – three counts of choke, suffocate or strangle – consideration of the definition of choking, suffocating or strangling for the purposes of s 28(2)(a) of the Crimes Act 1900 (ACT) – consideration of R v Green (No 3) [2019] ACTSC 96

Uploaded

13 May 2020

Ivers v Mehdi [2020] ACTSC 112

CIVIL LAW – NEGLIGENCE – Personal injury – plaintiff sustained psychological injury when she saw a motor vehicle strike a pedestrian – motor vehicle driven by first defendant –whether the first defendant owed the plaintiff a duty of care –whether the first defendant breached that duty of care – whether the pedestrian was guilty of contributory negligence – consideration of the medical evidence – consideration of s 34 of the Civil Law Wrongs Act 2002 (ACT) – consideration of damages

Uploaded

11 May 2020

Barnes v Lodding [2020] ACTCA 23

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court appeal – Resentence – Whether primary judge erred in finding specific error by Magistrate – Residual discretion

Uploaded

11 May 2020

SP v The Chief Police Officer [2020] ACTSC 114

CRIMINAL LAW – Child Sex Offender – Reporting and other obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT) – application to suspend such obligations – consideration of ss 96 and 97 – suspension order made.

Uploaded

8 May 2020

Clarke v Cram [2020] ACTSC 113

APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – Appeal against finding of guilt – Burglary and theft – DNA evidence of two persons – where the prosecution failed to exclude the possibility that the other person was the offender – convictions set aside.

Uploaded

8 May 2020

R v Logue [2020] ACTSC 115 (SCC 40 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – prepare for or plan to engage in sexual intercourse with a child outside Australia – use carriage service to access child abuse material – possess or control child abuse material

Uploaded

6 May 2020

R v Champness [2019] ACTSC 277 (SCC 95 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit an indecent communication to a person under 16 years of age – where offender was victim’s pastor – where relationship of trust – where no criminal history - recognizance release order

Uploaded

6 May 2020

R v KC [2020] ACTSC 94 (SCC 292 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – three counts maintaining a sexual relationship with a young person – one count sexual intercourse without consent – finding of guilty by jury – where offending occurred in family context – last offending conduct occurred over 30 years ago – relevance of delay – offender demonstrated effective rehabilitation

Uploaded

6 May 2020

R v Carberry [2020] ACTSC 96 (SCC 32 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – burglary – possessing a knife in a public place – possessing a drug of dependence – burglary of a residential premises whilst residents were home – early plea of guilty – substantial criminal history – context of long-term illicit substance use – guarded prospects of rehabilitation – sentence of imprisonment

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6 May 2020

R v Elcheikh [2019] ACTSC 359 (SCC 161 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to cause offence – using a carriage service to procure a person under 16 years – where offender provisionally diagnosed with a schizoaffective disorder – application of Verdins principles – whether registration under Crimes (Child Sex Offenders) Act 2005 (ACT) would be extra-curial punishment – whether intensive correction order appropriate

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5 May 2020

Dent v Burke [2020] ACTCA 22

TORT – DEFAMATION – Television broadcast of an interview with the respondent – respondent referring to allegations of misconduct against him by appellant – whether primary judge erred in concluding imputations defamatory of the appellant were not conveyed by the publication – meaning to be derived from publication as a whole and not only from words spoken by the respondent – no appealable error

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5 May 2020

Regan v Commonwealth of Australia [2020] ACTSC 107

CIVIL LAW – INTERLOCUTORY APPLICATION – Application to amend defence – unlawful arrest – defendant onus of proof – tradition versus asserted functionality

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5 May 2020

Asset Building Certifiers Pty Ltd v Hyblewski [2020] ACTCA 21

APPEAL – CONTRACT – Causation – defective building works – nature of the contractual duty owed by appellant to respondent – whether respondent has proved loss – whether finding of trial judge on issue of causation not open – consideration of

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5 may 2020

Gang v You [2020] ACTSC 105

PRACTICE AND PROCEDURE – APPLICATION IN PROCEEDING – Application for summary judgment or strike out of a prayer of relief – allegation of breaches of joint venture – intermixing of personal and corporate rights and obligations – need for the Plaintiff to elect between remedies – paragraphs in plea for relief struck out.

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5 May 2020

Brown v Australian Capital Territory (No 2) [2020] ACTSC 109

PROCEDURE – COSTS – Whether plaintiff to pay defendants’ costs – Whether there are sufficient public interest reasons to depart from usual costs order

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4 May 2020

R v McInnes (No 2) [2020] ACTSC 110 (SCC 241 of 2019; SCC 271 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful possession of stolen property – attempt theft – breach of Good Behaviour Orders

Uploaded

4 May 2020

R v Sirl (No 2) [2019] ACTSC 388 (SCC 19 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – recklessly inflicting grievous bodily harm – found guilty by jury – extensive criminal history – prospects for rehabilitation guarded

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1 May 2020

R v Lindsay [2019] ACTSC 387

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-Trial Application – whether witnesses can give evidence prior to the trial of the accused – where witnesses not Australian citizens and not known how long they will be in Australia – whether in the interest of justice – consideration of r 6813 Court Procedure Rules 2006 (ACT)

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1 May 2020

R v BF (No 3) [2019] ACTSC 374 (SCC 180 of 2014)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Re-sentence – breach of good behaviour order – consideration of residential condition

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1 May 2020

R v BF [2016] ACTSC 244

CRIMINAL LAW – EVIDENCE – Tendency evidence – sexual offences – child complainants – whether incidents demonstrate tendency – whether tendency evidence may be led

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1 May 2020

Ryrie v Tanner (No 2) [2020] ACTSC 104

DAMAGES – PERSONAL INJURY – Motor vehicle accident – Spinal injury – Pre-existing condition in spine – Whether the accident rendered the pre-existing condition symptomatic – Whether spinal fusion surgery reasonable – Damages for economic and non-economic loss, past and future expenses, and voluntary assistance

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1 May 2020

R v IB (No 3) [2020] ACTSC 103

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judge alone trial – COVID-19 Emergency Legislation – Court ordered judge alone trial – Principles of fair trials – Orderly and expeditious discharge of court business – Interests of justice – Legislative interpretation – Human rights – Magna Carta – Benefits of trial by jury – History of judge alone trial in ACT

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29 April 2020

IT v Knight [2020] ACTSC 101

APPEAL AND NEW TRIAL – APPEAL – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether conviction should have been entered – whether further evidence should be admitted in an appeal by rehearing – resentence upon admitting further evidence without a finding of error

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29 April 2020

Kemp v Tiirikainen (No 2) [2020] ACTSC 102

CIVIL LAW – APPLICATION – Application for adjournment – late service of affidavit – notice to produce issued – objection taken and affidavit pressed – costs

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29 April 2020

R v Serena (No 2) [2020] ACTSC 99 (SCC 43 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous offences – cancellation by the Sentence Administration Board of Intensive Corrections Order – aggravated burglary – common assault – unavailability of residential rehabilitation

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29 April 2020

Berhero Pty Ltd v Hinds [2019] ACTSC 378

CIVIL LAW – APPLICATION IN PROCEEDING – application to extend caveat – whether serious issue to be tried – whether balance of convenience favours extension of caveat – whether applicant required to give undertaking as to damages

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29 April 2020

R v Inder [2020] ACTSC 55 (SCC 249 of 2019; SCC 250 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand with threat – common assault – unauthorised possession or use of a prohibited firearm – possession of property suspected of being proceeds of crime

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29 April 2020

R v Krook [2020] ACTSC 93 (SCC 318 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges arise from two drug deals – recklessly inflict grievous bodily harm – unlawful act causing grievous bodily harm – trafficking in cannabis and cocaine –  offender suffers from Irlen Syndrome, ADHD, anxiety and depression – limited criminal history – early plea of guilty – youth and good prospects of rehabilitation – imprisonment – non-parole period at lower end of appropriate range

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28 April 2020

R v Kaihea (No 2) [2020] ACTSC 82 (SCC 252 of 2018; SCC 253 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – drug and alcohol treatment order cancellation

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28 April 2020

R v CD (No 2) [2020] ACTSC 84 (SCC 84 of 2017; SCC 140 of 2017)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency on child under 16 years – use of carriage service to menace, harass or offend – act of indecency committed in breach of good behaviour order – carriage service offence committed in breach of bail – resentence

Uploaded

28 April 2020

R v Laipato [2019] ACTSC 386 (SCC 39 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – unlawful confinement – unlawfully choking, suffocating or strangling a person – finding of guilt by jury – where offences occurred in a family violence context – guarded prospects for rehabilitation – consideration of deterrence and incapacitation