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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1 December 2020

R v Hall (No 2) [2020] ACTSC 63 (SCC 167 of 2019; SCC 168 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted burglary – dishonestly drive or take a motor vehicle without consent – aggravated burglary with intent to steal – theft – burglary with intent to steal – assault occasioning grievous bodily harm – guilty pleas

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30 November 2020

In the Estate of the late David Eric Platt [2020] ACTSC 316

WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) s 11A

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26 November 2020

Tracey v The Queen [2020] ACTCA 51

APPEAL – Sentence – whether the sentencing judge took into account facts which were not properly attributable to the offences charged – whether the sentence imposed was manifestly excessive – whether concurrency and accumulation was within range – error not established – appeal dismissed

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26 November 2020

R v Holt [2020] ACTSC 311 (SCC 161 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – plea of guilty – consideration of drug abuse and mental health issues on moral culpability – relevance of offender’s youth – consideration of Intensive Correction Order

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26 November 2020

R v FT (No 2) [2020] ACTSC 315 (SCC 13 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – young person

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25 November 2020

R v Celeski [2020] ACTSC 310 (SCC 78 of 2016; SCC 79 of 2016; SCC 80 of 2016; SCC 81 of 2016)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted theft – burglary – damaging property – dishonestly driving motor vehicle – theft – trespass – two counts obstructing territory official – unauthorised possession ammunition – two counts possession of drug of dependence – pleas of guilty – consideration of mental impairment on moral culpability – good prospects for rehabilitation

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25 November 2020

Baker v The Queen [2020] ACTCA 55

APPEAL – Conviction – whether trial judge erred in admitting the “four hits” evidence – whether the trial judge erred by not discharging the jury following the Crown’s opening – whether the trial judge erred by failing to give a Jones v Dunkel direction with respect to an anticipated Crown witness – whether the dates on the indictment were an essential feature of the offence – whether the verdict was unsafe – no error established – the verdict was open to the jury on the evidence – appeal dismissed.

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20 November 2020

Commonwealth of Australia v Davis Samuel Pty Limited and Ors (No 12) [2020] ACTSC 312

PRACTICE AND PROCEDURE – Judgment and Orders – Freezing Orders – Amendment

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20 November 2020

Townsend v Witteveen [2020] ACTSC 306

APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against sentence – theft – possession of stolen property – specific error – failure to specify discount for pleas of guilty – manifest excess – re-sentence – suspended sentence

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20 November 2020

R v Hyde [2020] ACTSC 301 (SCC 348 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in controlled substance – Unauthorised possession of weapon – Possession of property suspected to be proceeds of crime – Successful completion of rehabilitation program

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19 November 2020

R v BC [2020] ACTSC 308 (SCC 71 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – previous suspended sentence – breach of good behaviour order – breach by further offending – re-sentence – rehabilitation – intensive correction order

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17 November 2020

O’Rafferty v The Queen [2016] ACTCA 13

CRIMINAL LAW – Appeal and New Trial – where matter previously heard by Court of Appeal – unaddressed ground of appeal – matter remitted from the High Court of Australia – verdict unsafe and unsatisfactory – ground of appeal dismissed.

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17 November 2020

R v IB (No 2) [2019] ACTSC 356

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – charges of act of indecency without consent – charge of sexual intercourse without consent –applicant failed to appear at his trial on 8 November 2017 – applicant absconded from Australia – retrial scheduled to commence on 6 April 2020 – consideration of whether applicant would appear at Court if granted bail – whether bail conditions could ameliorate that risk to an acceptable level

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17 November 2020

R v Versteeg (No 2) [2020] ACTSC 273 (SCC 320 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – act of indecency without consent – pleas of guilty  – disputed facts hearing for sexual intercourse without consent charge – moral culpability – relevance of offender’s ADHD and cannabis use at time of offending –  consideration of Intensive Correction Order – consideration of general and specific deterrence – relevance of offender’s minimisation of offending

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17 November 2020

R v EN [2020] ACTSC 302 (SCC 65 of 2018, SCC 294 of 2018, SCC 74 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravene family violence order – attempt to pervert the course of justice – stalking – deferred sentence – rehabilitation – mental health – post traumatic stress disorder

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16 November 2020

R v KZ [2020] ACTSC 307 (SCC 75 of 2020; SCC 76 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – assault occasioning actual bodily harm – guilty plea

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13 November 2020

R v Vatanitawake [2020] ACTSC 304 (SCC 25 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent in company

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13 November 2020

R v Masivesi [2020] ACTSC 305 (SCC 24 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Act of indecency without consent

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13 November 2020

R v Vunilagi [2020] ACTSC 303 (SCC 28 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Sexual intercourse without consent in company – Act of indecency without consent – Prospects of deportation

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13 November 2020

The Council of the Law Society of the Australian Capital Territory v Hoyle [2020] ACTSCFC 3

LEGAL PRACTITIONERS – Application to remove practitioner from the roll – history of sexual misconduct – whether defendant is a fit and proper person to practice law – practitioner’s name removed from roll

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13 November 2020

Carvalho v Town [2020] ACTCA 54

APPEAL – NEGLIGENCE – Appeal from Supreme Court – Breach of duty – Whether arguable grounds raised on appeal – Whether Magistrate erred in the apportionment of damages for contributory negligence – Appeal dismissed

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13 November 2020

Bloxsome v The Queen [2020] ACTCA 52

APPEAL – SENTENCE – Re-sentence – Intentional wounding – Unlawful confinement – Aggravated robbery – Take motor vehicle without consent – Aggravated burglary – Damage property – Where some convictions were quashed on appeal – Whether sentence manifestly excessive – Whether sentence for aggravated robbery and take motor vehicle should be concurrent – Impact of COVID-19 on the appellant

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13 November 2020

Apps v The Queen [2020] ACTCA 53

APPEAL – SENTENCE APPEAL – Aggravated robbery – Parity principle – Where co-offenders sentenced on different facts

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11 November 2020

Hall v Davis [2020] ACTSC 300

CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against finding of guilt – damage property over $1000 –– appeal allowed

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9 November 2020

R v Armstrong [2020] ACTSC 298 (SCC 85 of 2020)

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

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6 November 2020

R v Vardai [2020] ACTSC 297 (SCC 14 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – intensive correction order

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6 November 2020

R v Higgins [2020] ACTSC 299 (SCC 347 of 2019; SCC 346 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing grievous bodily harm – where sentence exceeds two years imprisonment – whether Intensive Correction Order is appropriate

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4 November 2020

R v Roberts [2020] ACTSC 296 (SCC 187 of 2019; SCC 188 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts assault occasioning actual bodily harm – pleas of guilty – offences occurred while offender and victims in custody – guarded prospects for rehabilitation – limited remorse

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4 November 2020

R v Awooch [2020] ACTSC 295 (SCC 333 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – grievous bodily harm – guilty plea – intensive corrections order

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4 November 2020

Dunstan v Higham (No 3) [2020] ACTCA 50

PRACTICE AND PROCEDURE – COSTS – Security for costs – appellant ordered to pay $30,000 as security for costs for an appeal to the Court of Appeal – appeal was dismissed and costs order made against the appellant – money paid into court but never paid out – competing applications – application by the appellant that the security for costs order be set aside – no special circumstances – application dismissed

PRACTICE AND PROCEDURE – COSTS – Security for costs – application by the respondents to fix the amount payable pursuant to the costs order made by the Court of Appeal at $30,000 – application for the security to be applied to satisfy that order – respondents’ recoverable costs are much greater than $30,000 – appropriate to fix the costs of the appeal and related proceedings at $30,000 and allow the security held in court to be paid out to the respondents

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30 October 2020

Talent v Talent (No 2) [2020] ACTSC 294

COSTS – FAMILY PROVISION AND POSSESSION PROCEEDINGS – Where each party successful in obtaining relief – where settlement offers made equal to or better than the result after a fully contested hearing – whether a successful party’s conduct in rejecting offers made amounts to unreasonable conduct – whether costs should be borne personally

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29 October 2020

Amin v Vidal [2020] ACTSC 227

DAMAGES – PERSONAL INJURY – Motor vehicle accident – low speed rear-end collision – whether any injury caused by the collision – whether any injury and disability has subsided or continues

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27 October 2020

Hughes v Sangster (No 3) [2020] ACTSC 58

EQUITY – SALE OF PROPERTY – Registrar appointed to sell property after the parties’ equitable interests had been determined – request for judicial advice pursuant to previous court orders – whether the Registrar can sell the property to the plaintiff – where the plaintiff makes no appearance on mental health grounds – where the plaintiff’s costs liabilities exceed the value of their equitable interest – Registrar may sell the property to the plaintiff

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27 October 2020

R v Barron [2020] ACTSC 281 (SCC 141 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Intentionally inflict grievous bodily harm – Co-offenders

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27 October 2020

R v Williams (No 2) [2020] ACTSC 280 (SCC 36 of 2019; SCC 155, 156 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of good behaviour order – Resentence – Attempted robbery – Robbery – Make demand with menace – Burglary – Minor theft – Attempted minor theft – Take motor vehicle without consent – Mental health condition

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27 October 2020

Instyle Estate Agents Gungahlin Pty Ltd v Hambrook [2020] ACTSC 293

PRACTICE AND PROCEDURE – SUBPOENAS – Application to set aside subpoenas issued to the plaintiff’s accountant and corporate entities with a director in common with the plaintiff – whether the subpoenas seek documents beyond the relevant scope of the proceedings – whether legitimate forensic purpose – whether apparent or adjectival relevance

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26 October 2020

R v Collaery (No 9) [2020] ACTSC 291

PARLIAMENT – PUBLIC INTEREST IMMUNITY – Subpoenas served on government departments to produce documents – party seeking access is the defendant in criminal proceedings – application to be excused from production on the grounds of public interest immunity – whether the documents would reveal deliberations of Cabinet – disclosure of documents would allow reliable inferences to be drawn about Cabinet deliberations – strong public interest in not disclosing the documents in court proceedings – excused from producing the documents

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23 October 2020

R v Kelly [2020] ACTSC 292 (SCC 18 of 2020; SCC 19 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency – sleeping victim – burglary and theft offences

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23 October 2020

R v Massey (No 1) [2020] ACTSC 256 (SCC 133 of 2020; SCC 134 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving whilst disqualified – dishonestly driving a motor vehicle without the owner’s consent – refusing to provide a sample of oral fluid – pleas of guilty – consideration of eligibility for a drug and alcohol treatment order.

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23 October 2020

R v Stott [2019] ACTSC 272

CRIMINAL LAW – EVIDENCE – Tendency evidence – where tendency incidents involve co-accused’s involvement in related proceedings – where tendencies alleged are unusual or specific – whether tendency incident the subject of the conduct charged in the trial can be led – it cannot

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23 October 2020

R v Stephen [2020] ACTSC 283 (SCC 1 of 2020; SCC 2 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – recklessly inflicting grievous bodily harm – mid to upper range of objective seriousness – aggravated burglary – driving while disqualified – above mid range of objective seriousness – attempt to take a motor vehicle without consent – driving a motor vehicle without consent – mid range of objective seriousness – possessing a prohibited firearm – low range of objective seriousness – offending related to aggravated burglary of a residential premises – offender inflicted very serious injuries on the victim – extensive criminal history – offending driven by drug addiction – consideration of the costs of such offending – sentences of full-time imprisonment

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22 October 2020

Evers v Lawrence [2020] ACTSC 289

CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court against conviction – negligent driving and driving with a prescribed drug in oral fluid or blood – whether an extension of time for the hearing of the information was properly granted for service of summons – it was – whether the magistrate established the cause of the motor vehicle accident and the circumstances of the negligent driving beyond reasonable doubt – he did – whether the magistrate incorrectly dealt with the defence of mistake – he did not – appeal dismissed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Limitation of time for prosecution – appellant argued that the extension of time for the hearing was not properly granted under s 41(3) of the Magistrates Court Act 1930 – affidavit explained that the summons on the appellant was unable to be effected – proceeding must be “begun” within a year after the commission of the offences – appellant submitted that this required service upon the accused person – a proceeding is “begun” for the purposes of s 192 of the Legislation Act 2001 when it is “started” under s 25 of the Magistrates Court Act 1930 – requires the laying down of information – appeal dismissed

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22 October 2020

R v Dobbs [2020] ACTSC 290 (SCC 182 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – damaging property – robbery of a liquor store – offender committed an offence the following day in a different jurisdiction – on parole for those offences when charged with these offences – issue of totality – low to mid range of objective seriousness – mental health issues – alcohol and illicit substance abuse – limited criminal history – not suitable for an intensive correction order due to residing in NSW – wholly suspended sentences

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21 October 2020

Murray v IA [2020] ACTSC 288

CRIMINAL LAW – APPEAL – Appeal from the Magistrates Court against sentence – assault occasioning actual bodily harm – respondent assaulted her son – magistrate made a non conviction order with a good behaviour order – whether the magistrate misapplied the parity principle and doctrine of precedent – she did – whether the sentence was manifestly inadequate – it was not – appeal dismissed

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19 October 2020

R v OI [2020] ACTSC 286 (SCC 201 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery of a taxi driver – use of a weapon and threat to kill – unsophisticated offending – motivated by desire to gain money to buy drugs – mid range objective seriousness – offender is a young person – limited criminal history – good prospects of rehabilitation – suspended sentence and good behaviour order imposed

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19 October 2020

R v CN [2020] ACTSC 282 (SCC 300 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – sexual intercourse with a person under the age of 16 years – digital penetration occurred while victim was sleeping – opportunistic offending – offender and victim of similar ages – lower range of objective seriousness – good prospects of rehabilitation – counselling recommended to address offender’s limited insight into his offending – community service work not currently available for young offenders – good behaviour order imposed –

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by the offender not to be included on the child sex offender register – offender does not pose a risk to the lives or sexual safety of people in the community – offender and victim of similar ages – no evidence of inappropriate sexual inclination or involvement with children – inappropriate to  include the offender on the register in the circumstances of the case

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16 October 2020

Endresz v Commonwealth of Australia [2020] ACTCA 48

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal out of time – Whether dismissal for want of prosecution was interlocutory or final decision – Whether proposed appeal competent

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16 October 2020

Kuol v Pruckner (No 2) [2020] ACTSC 287

CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal Against Sentence – contravention of a personal protection order – findings of fact not open – essential sentencing considerations – delay in sentencing – appeal allowed

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15 October 2020

R v Evans [2020] ACTSC 285 (SCC 156 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – unlawful confinement – intentionally inflicting actual bodily harm – making a demand accompanied by a threat – lengthy criminal history – poor prospects of rehabilitation – consideration of general deterrence

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15 October 2020

R v Stott [2020] ACTSC 284 (SCC 90 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by judge alone – unlawful confinement – making a demand accompanied by a threat – recidivist offender – guarded prospects for rehabilitation – lack of remorse – consideration of Intensive Correction Order

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14 October 2020

R v Hoang [2020] ACTSC 262 (SCC 160 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in a controlled drug other than cannabis – Heroin – Repeat offence

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13 October 2020

R v Smith [2020] ACTSC 277 (SCC 68 of 2020; SCC 69 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – cause grievous bodily harm – choking or strangling – suspended sentence

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13 October 2020

R v Pikula [2020] ACTSC 265

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – aggravated robbery –   Circumstantial Case – Identification of accused – photo board identification by the complainant – not guilty verdict

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12 October 2020

R v Gardner [2020] ACTSC 278 (SCC 77 of 2020; SCC 78 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – occasioning grievous bodily harm – early guilty plea

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9 October 2020

R v  Edet [2020] ACTSC 276

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pleas of not guilty due to mental impairment -– proof of offences – proof of mental impairment – consequential orders – referral to ACAT

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9 October 2020

R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) [2020] ACTSC 274

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Judge-alone trial – Sexual intercourse without consent – Act of indecency without consent – Offences in company – “Gang rape”

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9 October 2020

R v Ngerengere [2020] ACTSC 271 (SCC 71 of 2020; SCC 70 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – common assault – possessing a drug of dependence

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9 October 2020

R v Saki [2020] ACTSC 270 (SCC 344 of 2019; SCC 345 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawful confinement – possession of cannabis – plea of guilty during trial – above mid range of objective seriousness – good prospects of rehabilitation – limited criminal history – risk of deportation – sentence of imprisonment

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8 October 2020

R v Davison [2020] ACTSC 272 (SCC 96 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – early guilty plea

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7 October 2020

R v Michalopoulos [2019] ACTSC 304

EVIDENCE – PRE-TRIAL APPLICATION – Admissibility of certain evidence – admissibility of an audio recording, the record of a police interview with the accused, the record of police evidence in chief with the complainant and various forensic procedures – whether the audio recording was obtained improperly by police – consideration of s 138 of the Evidence Act 2011 (ACT)

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6 October 2020

R v CN (No 4) [2020] ACTSC 267

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application to discharge jury – consideration of impact of government recommendations due to COVID-19 pandemic on jurors

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6 October 2020

R v CN (No 3) [2020] ACTSC 266

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by jury – application to discharge jury – consideration of government response to COVID-19 pandemic

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6 October 2020

R v CN (No 5) [2020] ACTSC 261

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – six counts of sexual intercourse with a person under 16 years – consideration of the evidence

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2 October 2020

R v Elson [2020] ACTSC 264 (SCC 79 and 80 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – family violence – aggravated burglary – contravene family violence order – offences committed in presence of child – strong prospects of rehabilitation – appropriateness of intensive correction order

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2 October 2020

R v Smith (a pseudonym) (No 2) [2020] ACTSC 260 (SCC 170 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual intercourse without consent – act of indecency – offender and victim were young persons – found guilty in judge alone trial – offender maintains not guilty plea – no remorse or insight into actions – importance of rehabilitation for a young offender – good support network – suspended sentence of imprisonment and good behaviour order

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – application by the offender not to be included on the child sex offender register – offender does not pose a risk to lives or sexual safety of people in the community – offender and victim were the same age – no evidence of inappropriate sexual inclination or involvement with children – inappropriate to include the offender on the register in the circumstances of the case

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1 October 2020

R v McHenry [2020] ACTSC 254 (SCC 32 of 2019; SCC 33 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – threatening to inflict grievous bodily harm – possession of knife in public place – consideration of longstanding drug and alcohol issues

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1 October 2020

R v Brown (No 2) [2020] ACTSC 255 (SCC 325 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – student-teacher relationship – where offender already served term of imprisonment in New South Wales in relation to same victim – significant childhood trauma – consideration of connection between psychological condition and offending – excellent prospects for rehabilitation

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1 October 2020

R v Pelecky [2020] ACTSC 246

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – burglary – theft – obtaining property by deception – driving a motor vehicle dishonestly without the owner’s consent – aggravated dangerous driving – failing to stop for police – escaping from arrest – damaging Commonwealth property – 10 transfer charges – pleas of guilty – consideration of whether a community corrections order is a sentencing order – referral for suitability assessment for Drug and Alcohol Treatment Order

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29 September 2020

R v Zdravkovic (No 3) [2020] ACTSC 258 (SCC 302 of 2018; SCC 304 of 2018)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – possession of an unauthorised firearm – possession of an unauthorised prohibited weapon – unauthorised possession of ammunition – low to mid range objective seriousness – offender a former member of an outlaw motorcycle gang – significant criminal history – ongoing need for specific deterrence – real prospects of rehabilitation – wholly suspended sentence of imprisonment – good behaviour order with a community service condition and a fine imposed

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29 September 2020

McConell v ACT [2020] ACTSC 259

PUBLIC LAW – ENROLMENT OF ELECTORS – Statutory interpretation – plaintiff seeking declaration that he is qualified to vote in the ACT general election and is entitled to be enrolled on the ACT electoral roll – whether persons resident of the Jervis Bay Territory are entitled to vote in ACT elections –  ACT electoral laws require person’s address to be in the electorate – boundaries of the electorates only encompass the ACT – application for declarations is dismissed

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29 September 2020

R v Ralston [2020] ACTCA 47

APPEAL – CRIMINAL LAW – Prosecution appeal against sentence –  using a carriage service to groom a person under 16 years of age – whether the primary judge erred assessing the relevant facts of the offence – whether the sentence was manifestly inadequate – whether the Court should exercise its residual discretion to decline to intervene

APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – residual discretion to dismiss appeal even if specific error established – whether manifest inadequacy must be demonstrated – how purpose of prosecution sentence appeal is to be taken into account in exercise of the residual discretion

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25 September 2020

R v Yavuz (No 2) [2020] ACTSC 248 (SCC 83 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – importation of commercial quantity of border-controlled drug – joint enterprise – parity – offences committed while in custody – history of similar offending

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24 September 2020

R v Edwards [2020] ACTSC 243

CRIMINAL LAW – TRIAL BY JUDGE ALONE – Particular offences – aggravated burglary – joint commission – whether a reasonable doubt exists as to the existence of an agreement between the two co-accused – it does – not guilty on both counts

CRIMINAL LAW – EVIDENCE – Admissibility of co-accused’s statement of facts – hearsay – where co-accused denied any recollection of events in the statement – statement could substantially affect witness’s credibility – therefore admissible under s 60 of the Evidence Act 2011 (ACT) – no requirement for a limiting order

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in proceeding – application to amend the indictment after the close of the defence case – unfairness to the accused – amendment would not affect finding of guilt – application refused

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24 September 2020

R v Zdravkovic (No 2) [2020] ACTSC 253

CRIMINAL LAW – RELATED CHARGE – Particular offences – transfer charge – possessing ammunition – elements of offence proved beyond reasonable doubt – verdict of guilty entered

CRIMINAL LAW – STATUTORY INTERPRETATION – Meaning of “possess” – where the definition of “possession” in the Firearms Act 1996 (ACT) does not include ammunition – appearance of contrary intention – ordinary meaning of “possess” applied

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24 September 2020

R v Zdravkovic [2020] ACTSC 251

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury trial – whether self-defence should be left to the jury – whether the Firearms Act 1996 (ACT) and the Prohibited Weapons Act 1996 (ACT) impliedly repeal s 42 of the Criminal Code 2002 (ACT) – they do not – whether the evidence is capable of establishing a reasonable possibility that the requirements of s 42 were met – no evidence of an imminent threat – self-defence not left to the jury

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24 September 2020

R v DU (No 2) [2019] ACTSC 241

CRIMINAL LAW – STAY OF PROCEEDINGS – Where the accused charged with maintaining sexual relationship with a young person under special care under s 56 of the Crimes Act 1900 (ACT) – Where seven instances underlying the charge – Where prosecution presented three different indictments – Where final indictment presented after taking of the complainant’s pre-trial evidence – Whether prosecution fundamentally changed its case – Whether defence suffered prejudice incurable by further evidence – Whether a stay should be granted.

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23 September 2020

R v Tuifua [2020] ACTSC 73

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail Application – Special and exceptional circumstances – history of failing to comply with bail conditions – criminal history and commission of offences whilst on bail – application refused

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23 September 2020

R v Poulakis [2020] ACTSC 247 (SCC 79 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – importation of commercial quantity of border-controlled drug – trafficking in drug other than cannabis – joint enterprise – parity – good prospects of rehabilitation – fulltime imprisonment only appropriate sentence

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22 September 2020

R v Garland [2020] ACTSC 242

CRIMINAL LAW – TRIAL BY JUDGE ALONE – Burglary – common assault – demand with a threat to kill – theft – accused and complainant were known to each other – history of allegations by the complainant – decline in the complainant’s mental health –  reasonable doubt as to whether the events occurred –  not guilty

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22 September 2020

R v Brown [2020] ACTSC 252 (SCC 301 of 2019; SCC 9 of 2019; SCC 10 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – taking a motor vehicle without consent – use of offensive weapon – minor theft – making a threat to kill – two counts aggravated robbery – pleas of guilty – consideration of youth and disadvantaged upbringing of offender – consideration of Intensive Correction Order

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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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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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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

Uploaded

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

Uploaded

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.

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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”

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

13 August 2020

R v Tuifua (No 2) [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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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”

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

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

Uploaded

14 July 2020

Gooda v Burrows [2020] ACTSC 187

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