Estate of Jakov Pavic [2024] ACTSC 414

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Forfeiture under public policy rule – application for judicial advice – will made by the testator establishing testamentary trust to benefit wife then son and daughter – son of testator unlawfully kills his mother – whether forfeiture rule prevents son from being a beneficiary of the testamentary trust – whether distribution of estate to daughter appropriate

The Supreme Court has ruled that the administrator of an estate, being the daughter of the testator, is the sole remaining lawful beneficiary and is justified in distributing to herself any and all assets remaining in the estate. The testator’s will had established a testamentary trust to benefit his wife, and then his son and daughter. The testator’s son was later convicted of manslaughter for the killing of his mother. The court considered the application of the forfeiture rule and whether it prevented the son from being a beneficiary of the testamentary trust in those circumstances.

Decision Restricted [2024] ACTSC 413

The catchwords of that judgment are set out below. As the judgment is restricted, it is not publicly available. Any enquires about this decision should be directed to Baker J’s chambers.  Associate.BakerJ@courts.act.gov.au

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tendency evidence – application to adduce tendency evidence of three different complainants and one witness – ‘stealthing’ – overly broad tendency notice – where particularised tendencies did not have significant probative value against the facts in issue – tendency application must be determined on the basis of the tendencies particularised in the tendency notice – application dismissed.

Bullock v Grant [2024] ACTSC 397

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Objection by defendant to allowing plaintiff access to material produced under subpoena – material related to superannuation benefits paid to deceased’s youngest child – material relevant to circumstances of competing claimant for bounty of testator – material relevant to question of whether adequate provision made – uncontroversial redactions allowed – access granted to both parties – costs consequences where objection unsustainable.

The Supreme Court has rejected an objection by the defendant to allowing the plaintiffs access to material produced under subpoena. The material related to superannuation benefits paid to deceased’s youngest child, which was relevant to the question of whether adequate provision had been made under the deceased’s will to his other children. The court noted that the objection was unsustainable and, after allowing some uncontroversial redactions to be made to the material, granted access to both parties. The court granted the costs of the subpoena and appearances to the plaintiffs, remarking that “If a party does take an unsustainable point, costs consequences follow.”

In the Estate of Grant Edward Flitton [2024] ACTSC 410

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Applicant seeks opinion, advice or direction of the court – deceased left no will – amount remaining in estate not insubstantial – sole beneficiary identified – whether justified in distributing estate – no opinion of counsel or written submissions – applicant directed to file any further evidence, any submissions, or any opinion of counsel.

The Supreme Court has directed an applicant to file any further evidence, any submissions, or any opinion of counsel in relation to an application for the opinion, advice or direction of the court. The advice sought was in relation to the distribution of an estate where the deceased had left no will, a sole beneficiary had been identified, and the amount remaining in the estate was not insubstantial.

Berhero Pty Ltd v Hinds (No 2) [2024] ACTSC 377

COSTS – PRACTICE AND PROCEDURE – Whether a party acted ‘so unreasonably’ –  where application consented to – plaintiff no longer had a caveatable interest –  further order required to remove caveats under an earlier court order – earlier court orders sought and obtained by plaintiff – plaintiff’s solicitor represented plaintiff through town agents at the time – requirement for further order unappreciated by the plaintiff’s solicitors until informed by defendants’ solicitors – plaintiff behaved ‘so unreasonably’ – plaintiff to bear the defendants’ costs on party-to-party basis.

The Supreme Court has ordered a plaintiff to pay the defendants’ costs of an uncontested application. The plaintiff’s solicitors were not aware of the legal requirement for a further court order to remove caveats, despite being the solicitors for the plaintiff at the time the caveats were ordered by the Court to be “until further order of the Court”.

Law Society v Ford (No 2) [2024] ACTSCFC 2

LEGAL PRACTITIONERS – DISCIPLINE – Application for removal from the roll of legal practitioners – recommendation by ACAT that defendant be removed from the roll of legal practitioners for professional misconduct and unsatisfactory professional conduct – whether defendant is a fit and proper person to practise law – where defendant shows no insight into inadequacies of his own conduct – unfitness indefinite – defendant’s name removed from the roll of legal practitioners

PRACTICE AND PROCEDURE – JURISDICTION – Factual findings by ACAT of professional misconduct and unsatisfactory professional conduct – defendant sought to have Supreme Court conduct fresh fact-finding – inconsistent with statutory regime to permit unchallenged finality reached as part of ACAT process to be undermined in subsequent proceedings – factual findings of ACAT to be applied by Supreme Court in determining fitness to remain on the roll

PRACTICE AND PROCEDURE – JURISDICTION – Whether Supreme Court has jurisdiction to hear and determine proceedings – submission by defendant that original decisions of Law Society invalid – submission that all subsequent proceedings, including present proceedings, were without jurisdiction – filing of ACAT orders under s 431(3) of Legal Profession Act 2006 (ACT) enlivens jurisdiction of Supreme Court to consider removal from the roll – separate statutory rights of appeal to Appeal Tribunal of ACAT and Supreme Court – no orders made in appeals or properly constituted judicial review proceedings setting aside ACAT orders – not open to seek prerogative relief by application in current proceedings

The Supreme Court has removed the name of a legal practitioner from the roll of legal practitioners. The practitioner was removed following findings by the ACAT that he was guilty of professional misconduct and unsatisfactory professional conduct. In deciding to remove the practitioner’s name, the Court held that he was not a fit and proper person to practise law and that he showed no insight into the inadequacies of his own conduct.

The practitioner had sought to have the Court conduct fresh fact-finding. However, the Court found that it would be inconsistent with the statutory regime to permit the unchallenged finality reached as part of the ACAT process to be undermined in subsequent proceedings.

The practitioner also submitted that the original decisions of the Law Society was invalid, and so all subsequent proceedings were without jurisdiction.  The Court noted that the practitioner had separate statutory rights of appeal to the Appeal Tribunal of the ACAT and the Supreme Court, but that no orders had been made in appeals or properly constituted judicial review proceedings setting aside the ACAT orders. It was, therefore, not open to the practitioner to seek prerogative relief by application in these proceedings.

DPP v Alfred (a pseudonym) [2024] ACTSC 341 (SCC 250 of 2023, SCC 31 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission aggravated burglary and aggravated robbery – juvenile offences – joint commission aggravated burglary and attempted theft – breach of suspended sentences – substantial criminal history – significant childhood deprivation and disadvantage – substance abuse and mental health disorders – consideration of s 133C Crimes (Sentencing) Act 2005 (ACT) re juvenile offences – prospects of rehabilitation poor despite relative youth – sentence of imprisonment imposed – suspended sentences restored.

Gang v You [2024] ACTCA 37

Judgment Summary

APPEAL – CIVIL – CONTRACT – where appellant claimed to have entered into merger agreement with respondent – oral agreement – whether primary judge erred in not accepting appellant’s evidence

APPEAL – EQUITY – where solicitor retained by respondent to act on conveyance – whether solicitor also acted for appellant – whether primary judge erred in factual findings concerning sale of house

The Court of Appeal has dismissed an appeal from a decision of the Supreme Court dismissing a claim concerning an alleged merger agreement. Mr Gang brought proceedings in the Supreme Court arising out of his dealings with Mr You. Mr Gang claimed that Mr You approached him with a suggestion that Mr Gang’s tiling company should merge with Mr You’s construction company. Mr Gang also claimed he sold his house to Mr You on the understanding he could repurchase it within 3 years, when in fact the contract included no such term. Mr Gang further contended that the solicitors breached a fiduciary duty to protect him from that outcome.

The primary judge dismissed both claims, including the claim against the solicitors. Mr Gang appealed to the Court of Appeal with a Notice of Appeal specifying 61 grounds of appeal. The Court of Appeal held that the primary judge’s reasoning concerning the alleged merger agreement was thorough, cogent and without error. The claims concerning the sale of the house and alleged breach of fiduciary duty on the part of the solicitors were also rejected. The appeal was accordingly dismissed.

DPP v Howarth [2024] ACTSC 322 ( SCC 328 of 2023; SCC 329 of 2023)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – breach of family violence order – assault occasioning actual bodily harm – unlawful choking rendering unconscious – unlawful choke, strangle or suffocate – offences aggravated by family violence – significant pre-sentence custody – intoxication contributing feature – some steps taken towards rehabilitation in custody – moral culpability reduced because of childhood exposure to alcohol abuse and violence – some moderation of general deterrence as sentencing consideration – sentence of imprisonment imposed

The Supreme Court has sentenced an offender to 5 years, 3 months imprisonment with a non-parole period of 2 years 9 months, for breach of FVO, intentional and unlawful choking (including one count of choking rendering insensible) and assault occasioning actual bodily harm. Each offence was inflicted on an ex-partner and was aggravated by FV. The Court considered the steps that the offender had taken while in custody to rehabilitate his long-standing alcohol abuse issues, and accepted that the offender’s moral culpability would be reduced because of childhood exposure to alcohol abuse and violence. These considerations were balanced against the need for robust general deterrence in light of the objective seriousness of the offences, particularly where non-fatal strangulation by a domestic partner operates as a predictive risk factor for intimate partner homicide.

In the Estate of Wendy Poole (deceased) (No 2) [2024] ACTSC 388

SUCCESSION – EXECUTORS AND ADMINISTRATION – Administration – applications by beneficiary seeking documents concerning estate administration and adding debtors as parties to proceedings – where estate attempting to recover from debtors – applications dismissed by consent upon executor commencing proceedings against debtors the day before the hearing – not appropriate to make orders as to costs of the applications.

The Supreme Court has dismissed two applications brought by a beneficiary under a will seeking documents concerning estate administration and adding debtors as parties to proceedings. The applications were brought because the executor of the estate had taken no steps to recover money owed to the estate by various debtors. The applications were dismissed by consent upon the executor commencing proceedings against debtors the day before the hearing. In the circumstances, the court considered it was not appropriate to make orders as to costs of the applications.

AFP v Vilayur [2024] ACTSC 406

CRIMINAL LAW – CONFISCATION OF CRIMINAL ASSETS – Application for examination orders under Proceeds of Crime Act 2002 (Cth) – application made by Commissioner in response to application made by defendants for exclusion of property from restraint and forfeiture – hearing of applications to exclude property statutorily required to occur after responsible authority has had a reasonable opportunity to conduct examinations – no statutory basis for opposition by defendants as to scope of examination orders being limited to facts underlying criminal convictions – examination orders granted.

The Supreme Court has allowed an application for examination orders under the Proceeds of Crime Act 2002 (Cth). The application was made by the Commissioner of the AFP in response to an application made by the defendants for exclusion of property from restraint and forfeiture. Hearing of an application for exclusion of property could not occur under the legislation until after the responsible authority has had a reasonable opportunity to conduct examinations. There was no statutory basis for the defendant’s argument that the scope of examination orders should be limited to the facts underlying a criminal conviction, and the examination orders were granted.

DPP v Davidson (a pseudonym) (No 3) [2023] ACTSC 334

The publication restriction has now been lifted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ground rules hearing for witness in proceedings – s 4AB(2) Evidence (Miscellaneous Provisions) Act 1991 (ACT) –  recommendations of witness intermediary adopted.

McIver v ACT [2024] ACTCA 36

Judgment summary

CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Whether s 18(7) of Human Rights Act 2004 (ACT) creates freestanding cause of action for compensation or damages – clear legislative intention not to create freestanding cause of action – no right to damages impliedly created where one did not previously exist – held no directly enforceable entitlement to damages or compensation established

CIVIL AND POLITICAL RIGHTS – HUMAN RIGHTS – Whether "unlawfully ... detained" in s 18(7) of Human Rights Act 2004 (ACT) covered circumstances where detention was lawfully justified by sentence of imprisonment but there was a breach of the law in relation to conditions of detention – applicants assert conditions of detention breached Human Rights Act and Corrections Management Act 2007 (ACT) – held "unlawfully ... detained" relates to the legal justification for the deprivation of liberty and does not extend to any breaches of the law relating to the conditions of the detention

The Court of Appeal has granted leave to appeal on two applications seeking to appeal from an interlocutory decision of the ACT Supreme Court refusing leave to commence proceedings out of time. However, the Court dismissed both appeals.

Both applications were brought by convicted prisoners housed in the Alexander Maconochie Centre (AMC). Each sought declaratory relief in relation to asserted breaches of their human rights while detained in the AMC.

The Court held that no directly enforceable entitlement to damages or compensation had been established by s 18(7) of the Human Rights Act 2004 (ACT), and that that "unlawfully ... detained" related only to the legal justification for the deprivation of liberty and did not extend to any breaches of the law relating to the conditions of the detention. The Court noted the clear legislative intention not to create a freestanding cause of action and not to impliedly create a right to damages where one did not previously exist.

In the Estate of Christine Leanne Farrell [2024] ACTSC 382

WILLS, PROBATE & ADMINISTRATION – RECTIFICATION –– Principles of rectification pursuant to s 12A of the Wills Act 1968 (ACT) – whether will ought to be rectified so as to give effect to testator’s probable intention – where testator’s will executed in the UK – where testator subsequently moved to Australia – property purchased in Australia

Higgins v ACT (No 2) [2024] ACTSC 400

EQUITY – Leases – scheme of development – whether common vendor – whether reciprocity of obligations established – whether any scheme enforceable against a lessee that was years later in time and without notice on title

EQUITY – Non-derogation from grant – whether Territory (and statutory authority) under obligation not to permit the use of golf course land in a way that would render the plaintiff’s land materially less fit for the purpose for which the lease was granted

CONSUMER LAW – Misleading and deceptive conduct – whether representations made about use of land for a golf course were based on reasonable grounds

The Supreme Court has delivered judgment in respect of a claim in equity concerning a golf course located within the Harcourt Hill Estate in Nicholls.  A scheme of development was found to have been created in respect of the Estate, which prevented the use of the golf course land for anything other than a golf course and associated facilities.   The scheme was further found to be enforceable as against the Territory and the entity that was formerly the ACT Planning and Land Authority.

The plaintiff had further argued that the current lessee of the golf course land, Gungahlin Golf Investments Pty Ltd, was also bound by the scheme of development.  The Court found that the scheme was not enforceable against the current lessee.

Other alternative claims in equity and for misleading and deceptive conduct were not made out.

Wu v Wu (No 3) [2024] ACTCA 35

COSTS – costs on appeal and at first instance – where appeal allowed – application to vary costs order – whether appellant succeeded on point not argued at first instance – whether respondent substantially successful on appeal.

The Court of Appeal has refused an application to vary a costs order previously made in Wu v Wu (No 2) [2024] ACTCA 29. The Court rejected an argument that the appellant succeeded on a point not advanced at trial and relied on general costs principles to find that the appellant was substantially successful in respect of both the proceeding at first instance and on appeal.

Benz v Baldock [2024] ACTSC 399

APPEAL – CRIMINAL – unauthorised camping on unleased National Land – whether person sleeping in car constituted camping – whether carpark was on National Land and subject to Australian Capital Territory National Land (Unleased) Ordinance 2022 – whether Ordinance properly authorised.

The Supreme Court has allowed an appeal from the Magistrates Court, which had found the appellant guilty in respect of a single offence of unauthorised camping on unleased National Land. The appellant had slept in his car overnight in an unrestricted car park on Barrenjoey drive in Canberra in 2023. Among numerous grounds of challenge, he succeeded in establishing that his conduct did not constitute “camping” under the relevant legislation. Accordingly, the finding in the court below was set aside and the charge was instead dismissed.

Topic v DPP [2024] ACTSC 398

APPEAL – CRIMINAL – Review appeal from Magistrates Court – drive while licence suspended – appellant had received infringement notices and reminders from Access Canberra for a speeding charge – mail unopened and sent back as unclaimed – right to drive in ACT automatically suspended for non-payment of fine – where speeding charge ultimately withdrawn – whether magistrate erred in finding appellant guilty – appeal dismissed.

The Supreme Court has dismissed an appeal from the Magistrates Court, which had found the appellant guilty of the offence of driving while his right to drive in the ACT was suspended. The appellant had received, but not opened, mail from Access Canberra notifying him of a camera detected infringement notice.  As a result, he did not contest the notice, nor pay the fine contained in the notice. Accordingly, his right to drive in the ACT was suspended for non-payment of the fine.

The appellant then drove in the Territory on 30 March 2023 and was arrested and charged.

On appeal the appellant challenged the Constitutionality and validity of the statutory regime under which the original speeding fine and subsequent suspension for non-payment of the fine were issued.

The Supreme Court found that while the speeding charge was ultimately dismissed, the suspension of the appellant’s licence in the meantime was lawful and that no defence of mistake of fact applied.  Accordingly, there was no error in the magistrate finding the appellant guilty of the charge.

DPP v Clarke (No 3) [2024] ACTSC 395 (SCC 297 of 2022; SCC 298 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of intensive correction order – commission of further offences and illicit substance use – whether intensive correction order covering sentences for two offences to be treated as one order – non-parole period applicable dates – whether cancellation of the ICO is not in the interests of justice – determination to cancel intensive correction order

The Supreme Court has cancelled an offender’s intensive correction order after the offender breached it through using illicit substances and committing fresh driving offences, of a similar nature to the offences he was originally sentenced for. The remaining period of the offender’s original sentence was imposed, with the non-parole period set to expire in April 2025.

DPP v Davidson (a pseudonym) (No 2) [2023] ACTSC 303

The publication restriction has now been lifted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – pre-trial application for witness intermediary for witness – s 4AJ Evidence (Miscellaneous Provisions) Act 1991 (ACT) – witness intermediary to be appointed for the witness – ground rules hearing to be held.

Plant (a pseudonym) v Steele [2024] ACTSC 389

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Where Magistrate refused a stay of summary proceedings - whether appeal incompetent – whether leave should be granted to bring judicial review proceedings – impact of legislation increasing the age of criminal responsibility

The SC has dismissed an appeal from a decision of the Children’s Court dismissing an application to have criminal proceedings against the appellant permanently or temporarily stayed. The appellant was 13 when she allegedly committed an offence. The age of criminal responsibility will be increased to 14 from July 2025.  The appellant contended that, in the meantime, the prosecution of a 13-year-old child is an abuse of process because the legislature has recognised that a child under 14 is incapable of forming criminal intent.  The DPP contended that the appeal was “incompetent” (meaning fatally flawed).  The Court held that there is no right of appeal to the Supreme Court from a Magistrate’s decision to grant or refuse a stay.  The only remedy is to seek judicial review, which requires the establishment of jurisdictional error or error of law on the face of the record. The appeal was dismissed for that reason.  The Court indicated that any such application would have failed in any event because there was no error in the Magistrate’s decision.  A change in the law effective on a future date does not invalidate the law as it presently stands.  The Children’s Court was entitled, and indeed obliged, to apply the existing law, as was the DPP in making her decision to prosecute.

DPP v Smith (a pseudonym) [2024] ACTSC 25

The publication restriction has been lifted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application – Admissibility – Tendency Evidence – s 97A Evidence Act 2011 (ACT) –Tendency evidence of a similar character involving the same complainant.

The Supreme Court has ruled that the incidents listed in the tendency notice are admissible as tendency evidence. The accused is charged with various counts of acts of indecency and incest. The tendency evidence is of a similar character, involved the same complainant and occurred within a limited, fourteen-month window. The Court found that the probative value of the evidence outweighs the unfair prejudice from its admission.

DPP v Al Kinani [2024] ACTSC 385 (SCC 337 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – possess device etc for making false documents – money laundering – theft – where childhood disadvantage – where no application for drug and alcohol treatment order made.

The Supreme Court has sentenced an offender to a total effective term of imprisonment of 1 year, 11 months and 1 day, with a 12-month non-parole period, for offences arising out of the theft of an EFTPOS machine from the Canberra Labor Club, and the use of the machine to obtain more than $16,000, with an attempt to obtain more than $50,000.  The offender also pleaded guilty to possessing a device for making false documents, being a card printer, and money laundering.  As the offender had already spent 5 months in custody, he will be eligible for parole in June 2025.

Donnelly v Lester [2024] ACTSC 393

APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether the verdict was unreasonable or unsupported by the evidence – whether the Magistrate erred regarding lawfulness of the arrest of a second person – whether the Magistrate erred in finding the appellant to have been lawfully arrested – resist public official – obstruct public official –police conduct – breach of the peace – appeal upheld – findings of guilt set aside.

The Supreme Court has upheld an appeal against conviction from the Magistrates Court. The grounds of appeal each related to the lawfulness of the arrests of the appellant and her associate. The Court found that the police did not have a lawful basis to arrest the appellant or her associate for a breach of the peace. Accordingly, the appellant’s charges for resisting and obstructing public officials while effecting those arrests could not be found proved as the public officials were not lawfully exercising their functions at the time. The Court set aside the findings of guilt recorded in the Magistrates Court and entered findings of not guilty.

DPP v Kayvanshokoohi [2024] ACTSC 386 (SCC 328 of 2024; SCC 329 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –making threats to endanger and to kill – aggravated dangerous driving – trafficking controlled drug – damage to property – common assault – offender on methylamphetamines and experiencing psychosis at the time of offending – where mental health contributed to offending – whether bail conditions amounted to quasi-custody

The Supreme Court has sentenced an offender to a total effective term of imprisonment of 2 years 6 months and 8 days for numerous offences arising out of a short spree of offending in May 2024, which culminated in three police pursuits, while the offender was under the influence of methylamphetamine.

The offender pleaded guilty to assault, damaging property, making demands with threats to kill and endanger life, drug trafficking and aggravated dangerous driving.  The Court found that the offences were serious, but took into account the quasi-custodial conditions of bail, including a residential drug rehabilitation program the offender had undertaken in between the date of his offending and sentence.  The Court gave weight to the opportunity for reform through completing the present rehabilitation program while in the community, and suspended the sentence of imprisonment after taking account of time already spent in custody.

DPP v Job [2024] ACTSC 367 (SCC 54 of 2023; SCC 55 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Breach of good behaviour obligations – where breach related to longstanding struggle with drug use, obligations relating to drug use “hopeful” with hindsight – offender polite and co-operative with Corrections and undertook familial caring responsibilities – re-sentencing offender with good behaviour obligations the most appropriate course where the court had a limited range of appropriate orders to make in the circumstances.

The Supreme Court has dealt with the breach of good behaviour obligations by an offender by reimposing the suspended sentence originally given to him.

The offender failed to comply with good behaviour obligations regarding accepting the supervision of corrective services and not continuing his drug use. Nonetheless, the offender had been polite and co-operative in dealing with corrective services and had carer responsibilities for family, reimposing suspended sentence was therefore most appropriate course in circumstances where court limited by range of orders it could make, where imprisonment was likely to serve little utility and Drug and Alcohol Treatment Orders and Intensive Corrections Orders either unsuitable or impractical.

DPP v Sullivan (No 3) [2024] ACTSC 390

CRIMINAL LAW – prosecution application to waive service requirements for expert report – report addressing responses of victims to non-consensual sexual activity – no action taken by prosecution to obtain report until shortly before the trial – report served late on accused – application to waive service requirements only made after accused made application to exclude report – prosecution application for waiver of service requirements dismissed – report inadmissible.

The prosecution’s application for waiver of s 79E of the Court Procedures Act 2004 (ACT) is refused. Accordingly, the report of Ms Jessica Pratley is not to be adduced in the trial.

DPP v Davidson [2024] ACTSC 372

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to withdraw plea of guilty – application to remit proceedings to Magistrates Court pursuant to s 90A of Magistrates Court Act 1930 (ACT) – requirement to remit matter to Magistrates Court – no discretion where requested by accused – application to withdraw leave unnecessary – proceedings remitted to Magistrates Court.

The Supreme Court has allowed an application to remit proceedings to the Magistrates Court pursuant to s 90A of the Magistrates Court Act 1930 (ACT). That provision establishes a requirement to remit a matter to the Magistrates Court with no discretion where it is requested by an accused. An application to withdraw a plea of guilty was considered unnecessary.

Travers-Murison v Ringrose-Voase [2024] ACTSC 387

TRUSTS – protective trust – where a person experiencing a mental health condition at the time of the establishment of a protective trust no longer suffers from that condition – whether to dissolve trust – jurisdiction of the Court – inherent or statutory jurisdiction – parens patriae jurisdiction – jurisdiction under Trustee Act 1925 (ACT), s 45(8) – where original orders provided for dissolution of the trust – whether the plaintiff has legal and/or financial capacity – consideration of medical evidence and documentary evidence – appropriate to dissolve trusts.

The Supreme Court has found it appropriate that protective trusts established by orders of this Court in 2014 are to be dissolved, upon the applicant having been subsequently established to have capacity to manage his own legal and financial affairs.

DPP v Scott [2024] ACTSC 378 (SCC 125 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –offender pleaded guilty to joint commission aggravated robbery – substantial criminal history – disadvantaged and dysfunctional background – offender seeking drug and alcohol treatment order – offender assessed as not suitable for treatment order – concerns surrounding offender’s compliance with conditions and engagement with rehabilitation program – offender’s substance use disorder assessed as moderate – offender dependent on controlled drug at time of offending – purposes of Crimes (Sentencing) Act 2005 not to exclude offenders whose addiction not severe enough – insight into addiction and commitment to rehabilitation – no penalty other than imprisonment appropriate given seriousness of offence – imposition of drug and alcohol treatment order not opposed by prosecution – period of imprisonment to be served by way of drug and alcohol treatment order imposed.

The Supreme Court imposed a DATO for an offender who pleaded guilty to joint commission aggravated robbery. The offender’s disadvantaged background included longstanding substance abuse which contributed to the offending. However, he made significant progress towards his rehabilitation whilst in custody. The offender was assessed as not suitable for a DATO due to concerns surrounding his compliance and an assessment of his substance use disorder as “moderate”. The Court held the offender’s non-compliance was limited and could be explained. Further, the offender was dependent on a substance when he offended, and “moderate” substance use disorder is not a barrier to a DATO.

DPP v Razayee [2024] ACTSC 151

The publication restriction has now been lifted.

CRIMINAL LAW – EVIDENCE – Pre-Trial Application to Adduce Evidence of a Complainant’s Prior Sexual Activity – Operation of ss 76 and 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – substantial relevance to facts in issue – proper matter for cross-examination about credit – leave granted

The Supreme Court has, ahead of the commencement of trial, granted leave for the complainant in a sexual offence proceeding to be cross-examined in relation to prior sexual activity. The relevant activity was a prior consensual sexual encounter with the accused that the complaint had not disclosed to police, and that she had disclosed a prior sexual assault from her former partner to the accused. The Court considered the evidence had substantial relevance to facts in issue and was a proper matter for cross-examination in relation to the complainant’s credibility.

DPP v KN [2023] ACTSC 243

The publication restriction has now been lifted.

CRIMINAL LAW – EVIDENCE – sexual offence proceedings – whether the Evidence in Chief Interview of the complainant should be edited pursuant to s 51(3)(b) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the EMP Act) – consented to by parties – application granted

CRIMINAL LAW – EVIDENCE – whether leave should be granted pursuant to s 76(1) of the EMP Act for the accused to cross-examine the complainant as to prior sexual activity with the accused – application not opposed – satisfied evidence has substantial relevance to the facts in issue and is a proper matter for cross-examination about credit – application granted

CRIMINAL LAW – EVIDENCE – whether leave should be granted pursuant to s 32 of the EMP Act for the complainant and a complaint witness to give evidence via AVL from a place outside the ACT – whether the necessary facilities were available – whether it would be in the interests of the administration of justice – facilities not satisfactory – application dismissed

The Supreme Court, ahead of the commencement of a trial in 2023, allowed the police interview of a complainant in a sexual offence proceeding to be edited in line with agreement between the parties, granted leave to the parties to adduce evidence of prior sexual activity of a complainant, being the existence of a prior sexual relationship between the complainant and accused generally, and specific sexual activities between them proximate to the time of offending. The Court dismissed an application to allow two witnesses to give evidence via AVL outside of the ACT, due to a lack of necessary facilities.

R v XH [2024] ACTSC 370 (SCC 204 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – produce child abuse material for use through carriage service.

The ACT Supreme Court has sentenced an offender for an offence of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service, contrary to s 474.23 Criminal Code Act 1995 (Cth). The offender wrote a story which contained child abuse material, on his work computer.

The Court found that exceptional circumstances existed, which made a recognizance release order appropriate, taking into account all sentencing factors, including objective seriousness and deterrence.

The offender was sentenced to 12 months imprisonment. The offender was released immediately, upon entering into a recognizance order, to be of good behaviour for a period of 3 years from the date of sentence.

Mena v DPP [2024] ACTCA 34

Judgment summary

APPEAL – CRIMINAL LAW – Appeal against conviction – whether jury’s verdict was unreasonable or unsupported by evidence – whether trial judge erred in making jury directions about identification evidence – whether trial judge failed to warn jury under s 165(1)(d) of the Evidence Act 2011 (ACT) about unreliable evidence of witness criminally concerned in events giving rise to proceedings – whether decision to admit audiovisual recordings into evidence wrong in law – no grounds of appeal made out – appeal dismissed.

The Court of Appeal has unanimously dismissed two appeals against convictions for offences arising out of a home invasion in 2021. Both appellants were charged with aggravated burglary, while the first appellant was also charged with attempted murder and committing an act endangering life. The jury returned guilty verdicts on all counts.

The appellants argued that the jury’s verdicts were unreasonable or unsupported by evidence because the two key witnesses were unreliable. They also contended that the trial judge had erred in the directions given about identification evidence and failed to warn the jury about unreliability of a witness who was potentially criminally concerned in the events giving rise to the proceedings. Finally, they argued that a pre-trial decision to admit audiovisual recordings into evidence was wrong in law.

In dismissing the appeals, the Court found that it was open to the jury to find the witnesses reliable and, in doing so, accept their evidence identifying the appellants as the offenders. The Court rejected the appellants’ contention that the directions had given rise to the risk of a miscarriage of justice. The Court held that there was no error in the pretrial ruling to admit the recordings into evidence, noting the purpose and policy of the legislative scheme which permitted such recordings to be admitted.

DPP v Cook [2024] ACTSC 379 (SCC 139 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – use carriage service to groom a person under the age of 16 – where offender suffered severe cognitive impairment and associated disabilities from birth – Verdins principles applied – moral culpability significantly reduced – where offender not an appropriate vehicle for general deterrence – where risk of reoffending low and rehabilitation prioritised – intensive correction order made

The Supreme Court has sentenced a 23-year-old offender to a total effective sentence of 1 year and 17 days, to be served by way of an intensive correction order, in respect of offences of engaging in sexual intercourse with a young person and using a carriage service to groom a person under the age of 16. The offender had a strong subjective case, with no criminal history, a pro-social network provided by his family, early guilty pleas and genuine remorse. The offender also had a number of significant health conditions with Verdins principles applied. The Court found that the offender was not an appropriate vehicle through which to achieve general deterrence and prioritised the rehabilitation of the offender.

DPP v Hagen [2024] ACTSC 360 (SCC 134 of 2023; SCC 144 of 2023; SCC 145 of 2023; SCC 254 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two separate series of serious offending over the course of a night – offender with “mild” intellectual disability – Bugmy & Verdins principles engaged notwithstanding countervailing factors – prospects of rehabilitation somewhat guarded but continuing rehabilitative potential – sentence backdated in application of totality – sentenced to imprisonment

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order with suspended sentence – offender reoffended – good behaviour order cancelled – offender resentenced – sentence made partially concurrent with fresh sentences as a matter of totality

The Supreme Court has sentenced an offender for a number of serious offences including causing grievous bodily harm and being knowingly concerned in an arson. In committing these offences, the offender breached a good behaviour order imposed in 2022. The offender’s good behaviour order was accordingly cancelled, with the offender resentenced.

The offender was sentenced to a total term of 5 years, 1 months and 10 days’ imprisonment. A non-parole period of 2 years, 8 months and 13 days was imposed.

Jewell v DPP [2024] ACTCA 30

Judgment summary

APPEAL – CRIMINAL LAW – Leave to amend appeal notice – appellant sought to expand grounds of appeal – whether primary judge erred in failing to properly apply the Bugmy and Verdins principles – where existing pro-social factors were said to “neutralise” risk of reoffence – childhood experience relevant to risk of re-offending – giving “full-weight” to Bugmy and Verdins will see purposes of sentencing pull in different directions – leave not granted – whether primary judge erred in discount to be imposed – where prosecution case overwhelmingly strong with respect to two charges – where primary judge applied different discounts between pleas – imposition of singular discount for multiple pleas would operate to obscure individualised nature of sentencing exercise – leave not granted

APPEAL – CRIMINAL LAW – Appeal against sentence – aggravated threat to kill – aggravated stalking – contravening Family Violence Order – breach Good Behaviour Order – whether individual and overall sentences imposed were manifestly excessive – whether primary judge applied excessive accumulation to individual sentences – where offending occurred over one month – criminality of each offence differed substantially – further concurrency risked eliding seriousness of individual acts – appeal dismissed

STATUTES – INTERPRETATION – Interpretation of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) in the context of s 145 of the Legislation Act 2001 (ACT) – whether reference to singular charge in s 35(4) should be interpreted to include reference to the plural – allowing single overall discount for pleas of guilty to multiple offences – operational difficulty of such an interpretation – absence of power in the Act to impose aggregate sentences for multiple offences – interpretation of s 35(4) not expanded to include the plural

The Court of Appeal has unanimously dismissed an appeal against sentence with a term of imprisonment of 7 years, 5 months and 19 days for offences of aggravated threat to kill, aggravated stalking and contravene Family Violence Order, as well as breaches of earlier Good Behaviour Orders. The appellant argued that the primary judge approached the consideration of Bugmy and Verdins principles in an “unbalanced” way, that HH erred in applying a 25% discount for a plea of guilty with respect to one charge and 9% for the other two (where the prosecution case re the latter two charges was overwhelmingly strong), and argued that the degree of accumulation resulted in manifestly excessive sentences, where the offending conduct occurred over approximately one month. Leave to expand the grounds of appeal was refused, and the original ground was dismissed.

DPP v D’Alessandro [2024] ACTSC 69

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – breach of bail through the alleged commission of further offences – jurisdiction of the Court to deal with breach of bail – application of ss 9D and 22 of the Bail Act 1992 (ACT) after a breach of bail – breach of bail not established on the balance of probabilities – bail conditions varied.

The Supreme Court has varied an offender’s bail after an alleged breach of bail conditions by the commission of further offences. The Court considered the procedure to be applied where an offender has allegedly breached bail, including whether the presumptions contained in Part 2 of the Bail Act should apply to a variation or continuation of bail. The Court found that such presumptions do not apply.

The Court considered that it had not been established on the balance of probabilities that the offender had breached bail. The offender’s bail conditions were varied to address the risk of future breaches.

Classic Constructions (Aust) Pty Ltd v Shearman (No 4) [2024] ACTSC 289

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside subpoena and notice to produce.

Classic Constructions (Aust) Pty Ltd v Shearman (No 3) [2024] ACTSC 282

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – where Registrar referred two applications sought to be filed by a self-represented litigant to a judicial officer under rule 6142 of the Court Procedure Rules for consideration as to whether applications should be accepted for filing – consideration as to whether litigant should have leave to file the documents – whether documents an abuse of process – where litigant had served numerous notices for non-party production and obtained numerous documents – failure to prove inadequate production or need for further documents

Classic Constructions (Aust) Pty Ltd v Shearman (No 2) [2024] ACTSC 374

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where owner seeks leave to file counterclaim against new party – extensive delay in bringing counterclaim – whether previous orders contemplated that course – proper approach to interpretation of orders

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where self-represented owner serves numerous notices for non-party production – application by builder to set aside notices

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – building dispute – where builder claims works are complete – where owner claims numerous defects require rectification – where owner contends builder must remain in possession pending rectification of defects – whether owner can compel builder to remain in possession

Classic Constructions (Aust) Pty Ltd v Shearman [2024] ACTSC 77

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application to set aside notices for non-party production – where notices drafted by self-represented litigant – where litigant unsure of basis for seeking documents

Pesec v Zivko (No 4) [2024] ACTSC 361

COSTS – determination of costs following unsuccessful oppression suit – where defendants were represented by three separate legal teams – whether plaintiff should bear costs of all three – where defendants served offer of compromise and Calderbank letter – inclusion of requirement for plaintiff to release defendants from any future claims arising out of or in connection with the matters the subject of the proceedings – whether it was unreasonable for the plaintiff not to accept the offer – whether judgment “not more favourable”.

The Supreme Court has determined costs following an unsuccessful oppression suit.  The plaintiff accepted he should pay the defendants’ costs but contended he should not have to pay the costs of three legal teams representing various defendants. The defendants sought a special costs order on the grounds of the plaintiff’s failure to accept an offer of compromise and Calderbank letter.

The Court was not satisfied the offer of compromise was more favourable than the judgment. The Court also found it was not unreasonable for the plaintiff to not accept the Calderbank offer because the inclusion of a term requiring the parties to release each other from all past and future claims connected to the proceedings made it difficult to determine if the defendants had achieved a better outcome from the judgment as opposed to the joint offer or Calderbank letter.

The Court accordingly dismissed the defendants’ application for a special costs order and varied the plaintiff’s costs order so he would not be required to bear the costs of three separate legal teams.

Ashell Homes Constructions Pty Ltd v Kobus [2024] ACTCA 32

Judgment summary

PRACTICE AND PROCEDURE – APPEAL – Appeal against award of damages by primary judge – whether there was a denial of procedural fairness – damages awarded on a basis other than the basis run at trial – appeal allowed – matter remitted.

The Court of Appeal has unanimously allowed an appeal against an award of damages on the ground of a denial of procedural fairness.

Mossop and Baker JJ agreed with Loukas-Karlsson J that the appellant was denied procedural fairness insofar as the primary judge’s assessment included “monies toward rectification of the structural departures” and “diminution in amenity”.

The matter was remitted to the primary judge. The respondents are to pay the appellant’s costs of the appeal, to be assessed after the conclusion of the proceedings on remitter.

Kader v Director of Public Prosecutions [2024] ACTCA 31

Judgment summary

CRIMINAL LAW – Appeal – where appellant pleaded guilty to perjury and perverting the course of justice – appellant tried twice for sexual offences – juries hung in both trials – appellant gave false evidence in first trial – appellant attempted to convince former wife to support his false evidence – whether primary judge breached De Simoni principle by taking into account the accused’s intention to secure acquittal as an aggravating circumstance on sentence – whether victim impact statement of complainant admissible – whether complainant was a victim of perjury – whether ongoing family court proceedings presented risk of re-offending – breach of De Simoni established – appellant resentenced – no lesser sentence appropriate – appeal dismissed

The Court of Appeal dismissed an appeal against sentences imposed for administration of justice offences, which were committed during and before jury trials for sexual offending. The Court of Appeal held that the primary judge, when sentencing for perjury, had erroneously considered the appellant’s intention to secure an acquittal, an element of aggravated perjury. The Court of Appeal held the primary judge was correct to find that the complainant of the sexual offending was a victim of the administration of justice offences. On resentence, no lesser sentence was imposed.

Jeffcott v Davesi Construction Group Pty Ltd [2024] ACTSC 366

CIVIL LAW – BUILDING AND CONSTRUCTION – breach of contract – Building Contract and Project Management Agreement entered into at same time – allegations of agency and sham not pressed – whether contracts inconsistent – defects in construction of residential building – whether delay in practical completion – alleged lock out from property – damages incurred owing to delay in completing property – rectification of defects – whether evidence of valid insurance policy

The Supreme Court has awarded damages in favour of the plaintiff for the defendant’s breach of contract. The plaintiff (and another joint owner) entered into a Project Management Agreement and an ACT Home Building Contract with the defendant on the same day. The contracts concerned the building of a duplex apartment. The defendant’s allegations of agency and sham were not pressed and both agreements were determined to be operative. The Court found that the defendant was liable under the Building Contract for various defects in the work, for lost rent occasioned by the defendant’s delay in completing the property and for the repayment of interest that the defendant had wrongly charged, which the plaintiff had paid under protest.

In the Estate of Robin Isobel Rawson [2024] ACTSC 365

WILLS, PROBATE & ADMINISTRATION – s 11A of the Wills Act 1968 (ACT) – informal will - where handwritten document (Codicil) purporting to amend a valid will signed and dated by deceased but only witnessed by one person – order under s 11A made - application for judicial advice as to the construction of the Will and the Codicil – whether “full share” should mean “additional equal share” in favour of one of the beneficiaries – judicial advice given

The Supreme Court has made orders under s 11A of the Wills Act 1968 (ACT) for a handwritten document (the Codicil) to constitute the valid will of the deceased together with the deceased’s formally executed Will, notwithstanding its non-compliance with the requisite formalities under the Wills Act. The Codicil was signed and dated by the deceased but only witnessed by one person. The applicant also made an application for judicial advice as to the construction of the Will and the Codicil under s 63 of the Trustee Act 1925 (ACT) regarding ambiguity on the face of the Codicil. Judicial advice was subsequently provided.

R v Merrilees (No 2); DPP v Merrilees [2024] ACTSC 364 (SCC 287 of 2024; ACTCA 37 of 2013)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –trafficking in a commercial quantity of a controlled drug – where offender absconded from Australia for nine years – delay of offender’s making – history of non-compliance with court orders – mental health diagnoses relevant to offending – where offender spent period in immigration detention before extradition – pre-sentence custody relevant to totality only – sentence of full-time imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Order – whether to impose suspended sentence or re-sentence – charges of perjury and possessing a drug of dependence for sale or supply – error of law in initial sentence – offender had achieved some rehabilitation during intervening period of absconsion – re-sentenced

The Supreme Court has sentenced an offender for trafficking in a commercial quantity of a controlled drug (cocaine) and re-sentenced the offender for a breach of a good behaviour order imposed for previous offending. Offending occurred in 2016, prosecution delayed due to offender leaving the country for nine years. Offender spent time in immigration detention before extradition. Offender was diagnosed with relevant mental health conditions. The offender was sentenced to a total period of imprisonment of 3 years and 3 months, which was backdated to take account of previous periods spent in custody.

Kirk v Hicks [2024] ACTSC 363 (SCA 13 of 2024)

APPEAL – CRIMINAL LAW – Sentence – charge of stalking – evidence that appellant suffered from Autism Spectrum Disorder not before magistrate – whether absence of evidence describing mental health condition of appellant resulted in a miscarriage of justice.

The Supreme Court has allowed an appeal against sentence from the Magistrates Court on the ground that sentencing proceedings miscarried as a result of the absence of evidence before the court of the appellant’s diagnosis of Autism Spectrum Disorder. Accordingly, the Court allowed the appeal, admitted additional psychological evidence and re-sentenced the appellant taking account of this new evidence. The court arrived at a new head sentence of two years and nine months, reduced from three years and six months imposed below, to account for the effect of the appellant’s diagnosis on the synthesis of an appropriate sentence for the appellant.

Victors (a pseudonym) v DPP [2023] ACTCA 14

CRIMINAL LAW – Application for leave to appeal interlocutory decision – decision of primary judge which found accused was fit to plead – relevant principles and factors – whether appellant is disordered or impaired to the extent they cannot give instructions – weight to be given to evidence from the appellant’s lawyers – leave to appeal granted

The Supreme Court granted an applicant leave to appeal from a decision of this Court finding him fit to plead in relation to a number of historic sexual offences. The Court held that the primary judge's decision was attended with sufficient doubt to warrant reconsideration. In coming to this decision, the Court considered the risk of substantial injustice which may arise, should the applicant be made to participate in a trial where he was unfit to plead. This consideration was balanced against the undesirable fragmentation of the trial process which may result from granting leave.

Redrouge Nominees Pty Ltd v Canberra Institute of Technology [2024] ACTSC 362

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Contract between tertiary education provider and “industry leader in applied complexity sciences” – whether contractual provisions specifying consequences of termination required payment of the whole of the Contract Price – Contract Price would be payable whichever party breached contract – caution necessary before adopting a lawyer’s assessment of absurdity or uncommerciality when interpreting contract – such a term would be very unusual – alternative interpretation has reasonable operation – whole of Contract Price not payable on termination

CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Repudiation – whether the exercise of a contractual right to terminate for breach excludes common law right to accept breaching conduct as repudiation and recover loss of bargain damages – in addition to clause specifying liability of consequences of contractual termination, contract contains provisions preserving parties’ rights – where consequences of termination by exercise of contractual right and termination by acceptance of repudiation are not so different as to require an election – termination rights taken to be concurrent – loss of bargain damages recoverable

The Supreme Court has awarded $2,402,002 to the plaintiff in a dispute between a tertiary education provider and an “industry leader in applied complexity sciences”. The dispute arose over whether the contractual provisions specifying consequences of termination required payment of the whole of the Contract Price where the Contract Price would be payable whichever party breached the contract. The court determined that such a term would be very unusual and that the whole of Contract Price not payable on termination.

In reaching its decision, the court considered whether the exercise of a contractual right to terminate for breach excludes common law right to accept breaching conduct as repudiation and recover loss of bargain damages. The contract included, in addition to clause specifying liability of consequences of contractual termination, provisions preserving parties’ rights. The court found that where the consequences of termination by exercise of contractual right and termination by acceptance of repudiation are not so different as to require an election, the termination rights are taken to be concurrent, and loss of bargain damages were recoverable.

Wu v Wu (No 2) [2024] ACTCA 29

Judgment summary

APPEAL – EQUITY – Undue influence – unconscionable conduct – whether presumption of undue influence established – whether defence of laches applies – whether remedial constructive trust appropriate

APPEAL – PROCEDURE – remittal – whether to remit proceeding – appellant 100 years old – where further evidence limited in nature – where no advantage of trial judge in circumstances of this case – no order for remittal made

The Court of Appeal has allowed an appeal dealing with equitable claims brought in undue influence and unconscionable conduct.  The proceeding concerned the appellant’s home, which was jointly owned by the appellant and his (now-deceased) wife and was gifted by them in 2009 to one of their adult daughters, the respondent.

The property was the appellant’s only means of accommodation, and the appellant was elderly, lacked proficiency in English and received no independent legal advice.

An earlier judgment of the Court of Appeal found material error: Wu v Wu [2024] ACTCA 8. Following a further hearing as to the appropriate conclusions to be drawn in light of that judgment, the Court determined that presumed undue influence arose from: (1) the wife’s position of ascendency over the appellant in respect of his financial and property affairs, and (2) the improvident nature of the gift.

Although the respondent daughter was not the source of the undue influence, as a third-party volunteer, the tainted nature of the gift extended to her receipt of the gift.  The defence of laches did not apply.

As there was no undue influence in respect of the wife’s interest in the property gifted to the respondent, the Court ordered a remedial constructive trust, declaring half of the interest in the property be held by the respondent in her own interest, and half held on trust for the appellant.

In the Estate of David Liu Koon Wong; In the Estate of Lana Mew Tham [2024] ACTSC 332

WILLS, PROBATE & ADMINISRATION – Rectification – testator’s intention – s 12A(2) of the Wills Act 1968 (ACT) – Whether rectification of wills ought to be made so as to give effect to the testator’s probable intention – gifts provided for in the Estate added up to 104% - clear arithmetical error – Application for rectification granted.

The ACT Supreme Court grants application for rectification of two identical wills - gifts provided for in each estate added up to 104% - clear arithmetical error – rectification made so as to give effect to the testator’s probable intention.

DPP v Rand (No 2) [2024] ACTSC 343

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – drug and alcohol treatment order – rehabilitation achieved – cybersecurity – Summernats – graduation – order confirmed.

The Supreme Court has graduated a participant from the supervision part of their Drug and Alcohol Treatment Order, moving them to the good behaviour portion of the order. The participant was sentenced in the Drug and Alcohol Sentencing List (DASL) in June 2022, and has been abstinent of drugs and alcohol for some 29 months, showing significant commitment to the DASL program. The Court noted the participant’s growth as a man to now being one with honesty and integrity, and his commitment to his studies, where he excelled in cybersecurity.

ZA v Director-General, Community Services Directorate [2024] ACTSC 347

PRACTICE AND PROCEDURE –  CARE AND PROTECTION PROCEEDINGS – Application by first respondent to dismiss appeal for want of prosecution – where appellant had appeared at only two of six occasions in which the proceedings had been listed and had not complied with procedural requirements relating to an index of appeal papers and transcripts of proceedings below – weight of application lessened by the appellant having taken steps to waive transcript application fees and having drafted an incomplete appeal index – court declined to dismiss proceedings and sought to regularise the appeal with further directions

The Supreme Court has dismissed an application by the first respondent to dismiss an appeal for want of prosecution. The appellant failed to file an appeal index and transcripts of the hearing of the matter at first instance, amounting to breaches of procedural requirements for prosecuting an appeal. She had also not appeared on occasions in which the appeal had been listed. Nonetheless, the appellant had sought to have transcript fees waived and had drafted an incomplete appeal index, which was sufficient to satisfy the court that dismissal of proceedings for want of prosecution was not warranted.

Decision Restricted [2024] ACTSC 317

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – application to adduce prior sexual activities of the complainant – leave required to be sought – leave to cross-examine – relevance to facts in issue – relevance of prior sexual history to credibility – leave granted

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.DASL@courts.act.gov.au

CDLC Pty Ltd v Capital Estate Developments Pty Ltd [2024] ACTSC 345

PRACTICE & PROCEDURE – security for costs – where plaintiffs are corporations – where prima facie evidence of an inability to pay an adverse costs order – where delay in application for security of more than a year – where counterclaim and third-party action raise overlapping issues with plaintiffs’ claim – application dismissed.

The Supreme Court has dismissed an application for security of costs against two corporate plaintiffs, neither of which were trading and one of which was in liquidation.  While it was not argued that the order would stultify the litigation, the application was only made more than a year after the proceeding was commenced and the plaintiffs had incurred considerable costs in the meantime.

Pout v Shipway [2024] ACTSC 324

PRACTICE AND PROCEDURE – PRODUCTION AND INSPECTION – Application to compel compliance with Notice for Non-Party Production – Notice issued to insurer for the defendant – response from insurer almost entirely inappropriate – it included statements that were self-evidently false – it will not really cost $80,000,000.00 to comply with the Notice – consideration of categories of items sought – most categories do not warrant the making of an order for production – orders made to compel production in limited categories.

The Supreme Court has made orders compelling an insurer to comply with a Notice for Non-Party Production, but limited the scope of the categories for which production was required. The insurer originally claimed that compliance with the Notice would take in excess of 3,000,000 man hours at a cost exceeding $80,000,000.00. The court found that this was self-evidently false, and that this, along with other features of the insurer’s response to the Notice, had significantly contributed to the unnecessary escalation of the matter.

DPP v Donohue [2024] ACTSC 96

CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Bail -- applicant charged with attempted murder -- charge falls within s 9C Bail Act 1992 (ACT) due to operation of s 189 Legislation Act 2001 (ACT) -- applicant failed to establish “special or exceptional circumstances” -- consideration of s 22 factors -- application dismissed and bail refused

The Supreme Court dismissed a bail application and refused bail for an accused charged with attempted murder. The attempted murder charge falls within s 9C of the Bail Act 1992 (ACT) due to the operation of s 189 of the Legislation Act 2001 (ACT). The applicant failed to establish that he was subject to “special or exceptional circumstances” and, consequently, the court had no power to grant bail.

Prichard v Honeywell Limited & Colliers International (ACT) Pty Ltd [2024] ACTSC 352

CIVIL LAW – application to substitute defendants previously granted by Court – order made under r 502 rather than r 503 of the Court Procedure Rules – application by plaintiff to amend order – rr 1613 or 6906 inapplicable – plaintiff’s application dismissed – application by defendants under r 514(4) of the Court Procedure Rules – proper construction of r 503 – whether substitution permitted under r 503 – sloppy pleadings – no affidavit from plaintiff’s legal representative explaining mistake – whether discretion under r 514(4) should be exercised – collateral challenge to previous order made over 12 months after order made – prejudice would be occasioned to plaintiff if order made – defendant’s application dismissed.

The Supreme Court has dismissed applications relating to an order previously made by the Court to substitute defendants. The parties agreed that the previous order was made under the incorrect Court Procedure Rule. The plaintiff sought to have the error corrected. The defendants sought an order that the proceeding was taken to have started when the substitution occurred, potentially time-barring the plaintiff’s claim. Both applications were first made over a year after the order was made. The Court dismissed both applications.

Johnson v Hansen [2024] ACTSC 353

APPEAL – CRIMINAL LAW – Appeal against conviction from the ACT Magistrates Court – appeal on basis that proceedings miscarried as a result of failure of the appellant’s counsel to adduce evidence of appellant’s good character, make submissions as to its significance and to seek that the magistrate give himself directions relating to the appellant’s good character – good character evidence available from numerous witnesses – bare “no convictions” character evidence adduced at trial – significant possibility that new evidence would have affected outcome of trial – appeal allowed on this ground

APPEAL – CRIMINAL LAW – Evidence of absence of criminal history – magistrate did not err in failing to direct himself as to the potential use of good character evidence in circumstances where neither party sought such a direction

APPEAL – CRIMINAL LAW – Power of the Magistrates Court to amend an information – argument by appellant that the court lacked the power under s 28 of the Magistrates Court Act 1930 (ACT) to amend charge to refer to different subsection of s 60 of the Crimes Act 1900 (ACT) – validity of conviction not affected by amendment to information in circumstances where “family violence” circumstance of aggravation stated on information – ground of appeal dismissed

The Supreme Court has allowed an appeal from the Magistrates Court on one ground, that the proceedings below miscarried as a result of failure of the appellant’s counsel to adduce good character evidence, make submissions as to its significance and seek that the magistrate give himself directions as to the evidence. Witnesses were available to give good character evidence, but a bare “no convictions” case was adduced, resulting in a significant possibility that this evidence would have affected the outcome of the trial.

However, the court dismissed other grounds of appeal because first, it was not convinced that the magistrate failed to direct himself as to the potential use of good character in circumstances where neither party sought such a direction. It also rejected an argument that the validity of conviction was affected by the amendment of an information from one subsection of s 60 of the Crimes Act 1900 (ACT) to another in circumstances where the “family violence” circumstances of aggravation were stated on the information.

Wolstenholme v Bonshaw ACT Pty Ltd [2024] ACTSC 339

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for vacation of interlocutory injunction previously granted – injunction restraining sale of property – whether serious question to be tried – whether balance of convenience favours injunctive relief – injunction maintained – orders varied.

The Supreme Court has varied the orders of an interlocutory injunction restraining the termination of a contract for the sale of land. The first respondent sought orders vacating the injunction. The Court found that there was a serious question to be tried such that the balance of convenience favoured the continuation of injunctive relief and the application was refused.

DPP v Bonazza [2024] ACTSC 349 (SCC 68 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis – money laundering - intensive corrections order (ICO).

The Supreme Court has sentenced an offender for an offence of trafficking in a controlled drug other than cannabis, namely cocaine and an offence of money laundering.

The sentence imposed is to be served by way of intensive corrections order subject to the core conditions and a condition that the offender perform 250 hours of community service.

The overall aggregate sentence is two years two months to be served by way of ICO.

DPP v Reid (No 2) [2024] ACTSC 350 (SCC 196 of 2020)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of ICO – commission of further offences – whether cancellation of the ICO is not in the interests of justice – positive engagement while in custody – ICO cancelled – non-parole period set.

The Supreme Court has cancelled an Intensive Correction Order imposed in April 2021 after the offender breached the order by virtue of fresh offending. The Court found there was no basis to conclude that cancelling the ICO would not be in the interests of justice and an order was made for the offender to serve the remainder of the sentence in full-time detention.  A non-parole period was set such that the offender is now eligible for parole.

DPP v Williams [2024] ACTSC 303 (SCC 263 of 2023, SCC 264 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravention of Family Violence Order – family violence offending – whether victim allowing offender in their home in breach of FVO constitutes mitigating factor – s 34B of the Crimes (Sentencing) Act 2005 (ACT) – suspended sentence not appropriate penalty – history of family violence offending – term of imprisonment imposed

The Supreme Court has sentenced an offender to 4 years and 23 days imprisonment with a non-parole period of 2 years, 5 months, 9 days, for offences of aggravated choke, suffocate, strangle another person so as to render the person insensible or unconscious, aggravated assault, aggravated common assault, and contravening family violence order. In sentencing the offender, the Court considered his history of family violence offending, and the impact of his drug and alcohol dependency on the offending. The Court also considered whether a victim allowing an offender into their home in breach of a family violence order could be considered a mitigating factor. The Court found that while lack of forced entry may indicate an absence of aggravation, the responsibility of compliance with a protection or family violence order ultimately lies with respondent.

DPP v Peacock [2024] ACTSC 348 (SCC 170 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – serious mental illness – significant criminal history – Bugmy and Verdins considerations – failure to demonstrate remorse – limited prospects of rehabilitation – sentence of imprisonment imposed

The Supreme Court has sentenced an offender for attempted aggravated robbery to 2 years, 4 months and 24 days of imprisonment reduced from 3 years of imprisonment for a guilty plea. Bugmy and Verdins principles found to apply.  The offender’s mental health diagnosis directly contributed to his offending conduct. The treatment resistant nature of his diagnosis reduced his prospects of rehabilitation and ability to develop insight into his offending.

DPP v Mastalerz (No 2) [2024] ACTSC 267 (SCC 146 of 2023; SCC 147 of 2023; SCC 101 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – where offender committed acts of serious family violence – offending while subject to family violence order and bail conditions precluding him from contacting the victim – high range of objective seriousness for the sexual offences and varying levels for assault, property damage and family violence order contraventions – negative family upbringing – prior criminal history – plea of guilty three weeks before trial – general deterrence important and prospects of rehabilitation guarded – sentenced to 121 months' imprisonment

The Supreme Court has published the reasons for sentence of an offender charged with aggravated sexual intercourse without consent, multiple contraventions of a family violence order, aggravated common assault and aggravated minor property damage.

The two rolled up counts of aggravated sexual intercourse without consent carried a maximum sentence of 15 years’ imprisonment for each charge, while the other offences that the offender was charged with had maximum penalties in the range of three to five years. The offender was sentenced to 121 months’ imprisonment (10 years and 1 month) upon the court’s consideration of the offender’s negative family upbringing (engaging R v Bugmy principles), prior criminal history and rehabilitation prospects. General deterrence and a late plea of guilty were also important factors in the sentence arrived at by the Court.

The Owners – Units Plan No 4321 v Victory Homes Pty Ltd [2024] ACTSC 337

PRACTICE AND PROCEDURE – PLEADINGS – Application by first defendant to strike out or obtain summary judgment in relation to aspects of the plaintiff’s claim – claim under Australian Consumer Law (ACL) against builder not precluded by the fact that owners corporation did not exist at time of representations and did not pay for common property – application of limitation period not able to be determined until trial – not appropriate to rule upon availability of claim for breach of statutory duty under s 42 of the Building Act 2004 (ACT) – s 40 of the Limitation Act 1985 (ACT) not applicable to claim for damage under s 236 of the ACL.

The Supreme Court has dismissed an application by the first defendant to strike out or obtain summary judgment in relation to aspects of the plaintiff’s claim: a claim under the Australian Consumer Law for misleading or deceptive conduct, a statutory claim under s 42 of the Building Act and a claim for breach of duty of care in relation to defective repair work.

The misleading or deceptive conduct claim was found to not be precluded by the fact that the plaintiff did not exist at the time representations were made, and it was not practical to determine the application of limitation periods at an interlocutory stage. It was not appropriate to decide finally upon the application of a claim under s 42 of the Building Act, and it was considered that the issues raised by the first defendant concerning the plaintiff’s pleading of breach of duty of care in relation to repair work were properly a case management issue.

In the matter of an application under the Confiscation of Criminal Assets Act 2003 (ACT) [2024] ACTSC 331

CIVIL LAW – CONFISCATION OF CRIMINAL ASSETS – Application for restraining order – commercial cultivation, trafficking and possession of cannabis – automatic forfeiture – whether informations laid pursuant to s 29(1)(a) of the Confiscation of Criminal Assets Act 2003 – where charges not orally read – Court exercising jurisdiction over defendants amounts to laying of informations – reasonable belief that informations have been laid.

The Supreme Court has granted an ex-parte app by the DPP for restraining orders over property pursuant to the Confiscation of Criminal Assets Act 2003 (ACT) (the Act). In granting the application, the Court considered whether informations had been laid (where charges were not read orally to the defendants because no interpreter was available), and whether the officer believed informations had been laid against the defendants pursuant to s 31(2) of the Act. The Court found that informations had been laid, by virtue of the Magistrates Court exercising jurisdiction over the defendants. As a result, the belief expressed by the officer that informations were laid was a reasonable one.

Law Society (ACT) v Bangura [2024] ACTSCFC 1

Judgment Summary

LEGAL PRACTITIONERS – APPLICATION FOR REMOVAL FROM THE ROLL OF LEGAL PRACTITIONERS – Criminality – whether practitioner is a fit and proper person to practise law – where criminal conduct related to willingness to engage in dishonesty over sustained period – where any insight belated – where practitioner’s subjective circumstances not causative of dishonesty – defect of character established – unfitness indefinite – practitioner’s name removed from Roll of Legal Practitioners

The Full Court of the Supreme Court of the ACT has ordered the removal of a legal practitioner from the Roll of Legal Practitioners.  The practitioner had previously been convicted in NSW for the offence of attempting dishonestly to obtain a financial advantage.  The practitioner was found to have a defect of character, the nature of which was such as to make the applicant not fit and proper to practise for a period of indefinite duration. To protect the public and maintain the highest standards of the legal profession, the Full Court determined that removal from the Roll was appropriate.

DPP v Sullivan [2023] ACTSC 317

CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Evidence -- coincidence evidence -- series of robberies -- CCTV footage -- where the offender was apprehended at the scene of the last robbery -- identification evidence -- similar clothing and weapon -- significant probative value -- risk of unfair prejudice

The Supreme Court has granted an application made by the DPP to adduce coincidence evidence of three armed robberies, where Mr Sullivan has pleaded not guilty to two, and guilty to one. The Court considered the significant prejudicial effect of adducing such evidence, particularly given its admission would reveal to a jury that Mr Sullivan pleaded guilty to a separate offence of armed robbery. In granting the application, the Court considered the striking similarities between the three incidents and, as a result, found that the significant probative value of the evidence outweighed the danger of unfair prejudice to Mr Sullivan.

DPP v Best (a pseudonym) [2024] ACTSC 334 (SCC 216 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – child offender – young person – sexual intercourse without consent – profound childhood disadvantage – Bugmy principles applied – Verdins principles applied – assessment of maturity – good prospects of rehabilitation – registration as a child sex offender found to be inappropriate

The Supreme Court has sentenced a young person for an offence of sexual intercourse without consent to 1 year, 2 months and 12 days of imprisonment reduced from 18 months of imprisonment for a guilty plea. Bugmy and Verdins principles found to apply. The sentence is to be suspended immediately upon the young person entering into a Good Behaviour Order for the period of the sentence.

de Souza v DPP [2024] ACTSC 330

CRIMINAL LAW – appeal from Magistrates Court – family violence offences – whether error in use of character evidence – adequacy of Magistrate’s reasons – Notice of Contention – whether Magistrate erred in finding complainant’s Evidence in Chief Interview (EICI) inadmissible – merit in submission of Director of Public Prosecutions that EICI was admissible – not appropriate to finally determine Notice of Contention – appeal dismissed

The Supreme Court has dismissed an appeal from convictions for family violence offences. The Supreme Court held that the Magistrate had not erred in her consideration of character evidence adduced by the accused and that there was no inadequacy in the Magistrate’s reasons. The Court also held that it was not appropriate to finally determine the Notice of Contention filed by the Director of Public Prosecutions which concerned the admissibility of the complainant’s recorded interview with police.

DPP v Chatfield [2024] ACTSC 329 (SCC 3 of 2024; SCC 354 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – pilot circle sentencing list – Elders and Respected Persons panel – intentionally inflict grievous bodily harm – aggravated burglary – assault occasioning actual bodily harm – dishonestly drive motor vehicle without consent – assault frontline community service drive – possess knife without reasonable excuse – possess license issued to another – committed while offender was on conditional liberty – extensive criminal history – where offender had disadvantaged childhood – Bugmy principles applied – Verdins principles applied – offender demonstrated remorse

The Supreme Court sentenced an offender to 4 years, 11 months and 10 days of imprisonment for aggravated burglary, intentionally inflicting grievous bodily harm, assault occasioning actual bodily harm, driving a motor vehicle without consent, possessing a knife without reasonable excuse, possessing a license issued to another and two charges of assaulting a frontline service provider. This offender is the first to be sentenced in the Pilot Circle Sentencing List. The offender had a significantly disadvantaged childhood and various psychological diagnoses such that his moral culpability was reduced.

DPP v Mapiou [2024] ACTSC 323

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – murder preventing carrying out of forensic procedure – plea of not guilty by reason of mental impairment – prosecution agrees special verdict of not guilty by way of mental impairment should be entered – effect of nominated terms under s 302 of the Crimes Act 1900 (ACT) considered – special verdict entered – accused detained in custody for the immediate review of the ACAT – nominated terms imposed for both offences.

The Supreme Court has entered special verdicts of not guilty by way of mental impairment for one count of murder and one count of preventing the carrying out of forensic procedure. The Court accepted the opinions of psychiatric experts, who were of the unanimous view that, at the time of the offending, the accused was suffering from an acute episode of schizophrenia, and did not appreciate his conduct was wrong. The prosecution consented to the entering of the special verdicts. The Court specified an overall nominated term of imprisonment for 20 years and 1 month for both counts.

DPP v Sullivan (No 2) [2024] ACTSC 328

CRIMINAL LAW – application for bail pending appeal – bail revoked following guilty verdicts returned by jury – Notice of Appeal filed - where guilty verdicts appear inconsistent with not guilty verdicts – effect of conviction on risk of flight or failure to appear – prospects of appeal succeeding – bail granted

DPP v Sullivan [2024] ACTSC 327

CRIMINAL LAW – application for witnesses to give evidence via audio-visual link – application opposed by defence for some witnesses – necessary facilities for AVL – more convenient for witnesses to give evidence by AVL – no unfairness to accused – where giving evidence AVL would reduce cost to a party – application granted

Steep v Hall [2024] ACTSC 320

CRIMINAL LAW – Appeal – theft and minor theft offences – whether Magistrate erred in assessing objective seriousness of minor theft by reference to “monetary mid-point” – whether Magistrate erred in taking into account ‘normal’ ratio for non-parole periods when fixing the unsuspended portion of a suspended sentence – error established – appellant resentenced afresh – no lesser sentences than those imposed by the Magistrate are appropriate – appeal dismissed.

The Supreme Court has dismissed an appeal by the appellant from the sentences imposed by the Magistrates Court for various offences, including theft and minor theft. The Court found that the Magistrate did not err in assessing the objective seriousness of minor theft by reference to a “monetary mid-point”, although the use of that terminology was discouraged. The Magistrate was held to have erred in taking into account the ‘normal’ ratio for non-parole periods when fixing the unsuspended part of a suspended sentence. On resentencing it was held that no lesser sentences than those imposed by the Magistrate were appropriate.

Hudson v DPP [2024] ACTCA 28

Judgment summary

APPEAL – CRIMINAL LAW – Sexual assault – jury trial – inconsistent verdicts – trial involved single complainant and single event – whether verdicts unreasonable – adequacy of trial judge’s directions to jury on intoxication – where no objection to directions at trial

The CA unanimously dismissed an appeal against a jury’s guilty verdicts concerning sexual offending. The appellant, who had been found not guilty of some counts, submitted that the guilty verdicts could not be reconciled with the not guilty verdicts. He also contended that the guilty verdicts were unreasonable, and that the trial judge’s direction regarding his intoxication was inadequate. The CA dismissed all grounds of appeal, finding that the verdicts were consistent with the jury having accepted the complainant’s evidence but having a reasonable doubt as to particular elements, and that there was no error in the intoxication direction.

DPP v Howarth [2023] ACTSC 351

CRIMINAL LAW – EVIDENCE – Admissibility of evidence of subsequent conduct of complainant – whether evidence relevant solely to credit – whether evidence ought be excluded because it is otherwise unfairly prejudicial – evidence admitted

The publication restriction has now been lifted.

Pesec v Zivko (No 3) [2024] ACTSC 325

CORPORATIONS – MEMBERS’ RIGHTS AND REMEDIES – Oppression – application by shareholder for relief under s 233 of the Corporations Act 2001 (Cth) for alleged oppressive conduct under s 232 – unlisted public company – where managing director granted option to acquire shares in company as part of remuneration package – whether options issued at an undervalue – where company prepares financial statements adopting the cost model of accounting – whether additional financial information necessary to enable shareholders other than directors to ascertain the value of their shares – whether  unavailability of list or current valuations of real property assets produces commercial unfairness to shareholders other than directors – whether cumulative impact of separate allegations amounts to oppression

The Supreme Court has dismissed proceedings brought against the managing director and non-executive directors of Consolidated Builders Ltd. The plaintiff asked the Court to intervene in the governance of Consolidated on the ground of alleged oppressive conduct by its directors.

It was alleged the oppressive conduct arose from the Board’s approval of the managing director’s remuneration package, which included the grant of 150,000 options. The plaintiff contended the options were granted at an undervalue and changed the capital structure of the company such as to dilute the percentage shareholding of other shareholders. Oppressive conduct was also alleged to have arisen from the company’s refusal to provide members with a list and market valuation of its real property assets.

The Court found the decision to grant 150,000 options was neither contrary to the interests of nor oppressive to the members. The Court also found the refusal to provide members with a list and market valuation of its real property assets did not amount to commercial unfairness. The proceedings were accordingly dismissed.

R v McConnell-Imbriotis [2024] ACTSC 319 (SCC 168 of 2022; SCC 169 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – drug trafficking offences – aggravated dangerous driving – driving while disqualified – sentence deferred for 12 months – where offending behaviour informed by drug and alcohol use – significant work undertaken by offender to rehabilitate – time already spent in custody and rehabilitation programs – where custodial sentence presents high risk of relapse – rehabilitation as form of community protection – sentence of imprisonment wholly suspended – good behaviour order – recognizance release order

The Supreme Court has sentenced an offender to 2 years and 2 months imprisonment, wholly suspended, for drug trafficking and driving offences to which he pleaded guilty. The offender was originally before the Court twelve months earlier, but sentence was delayed to allow the Court to better determine the offender’s prospects of rehabilitation. The offender has spent 7 months in jail, and approximately 1 year, 6 months in residential rehabilitation programs. The Court considered the utility of rehabilitation as a means to protect the community, against the prime importance of general deterrence with respect to drug offences. In these circumstances, the offender will be required to comply with a Good Behaviour Order for a period of 2 years and 2 months.

DPP v Bowler (No 2) [2024] ACTSC 321 (SCC 312 of 2022; SCC 87 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – review – s 80ZE cancellation of Drug and Alcohol Treatment Order following withdrawal by participant on medical grounds – imposition or resentence – no further offending while subject to Treatment Order – successful rehabilitation in reach – resentence – term of imprisonment suspended

The Supreme Court has re-sentenced an offender to 3 years and 6 months imprisonment for offences including dishonestly taking and driving a motor vehicle without consent, obtaining financial advantage by deception, damaging property, driving a motor vehicle at police, and aggravated dangerous driving as a repeat offender. The sentence of imprisonment is to be wholly suspended upon the offender signing an undertaking to comply with good and supervision behaviour obligations. The offender was previously sentenced for the offences to a Drug and Alcohol Treatment Order, however the order was cancelled following the offender’s withdrawal of consent on medical grounds. In re-sentencing the offender, the Court considered his level of compliance with the Treatment Order, his prospects of rehabilitation, his protective factors, and prosocial engagements in the community, drawing the conclusion that successful rehabilitation is within reach, and that a good behaviour order would enable continued support for this.

Quach v Commissioner of Taxation [2024] ACTSC 312

CIVIL LAW – PRACTICE AND PROCEDURE – False and misleading statement to the Court – whether Respondent knowingly mislead the Court – whether Respondent’s statement that proceedings were interlocutory breached s 723 of the Criminal Code ACT (2002) – whether proceedings were interlocutory – application of res judicata to interlocutory proceedings

The Supreme Court has dismissed an application to have the Commissioner of Taxation dealt with for contempt by making a false statement to the Court, pursuant to s 723(1) of the Criminal Code 2002 ACT. The false statement was identified by the Applicant as the assertion that the decision of Mossop J was an interlocutory decision and leave to appeal was thus necessary. The Applicant argued that in so doing, the Respondent was applying “res judicata” to bring his appeal to an end to the Applicant’s detriment knowing that “res judicata” did not apply to interlocutory orders. In dismissing the application, the Court found that Mossop J’s decision was interlocutory and that the statements in question were demonstrably, not false.

Director General, Community Services Directorate as Guardian for LN v LL [2024] ACTSC 287

SUCCESSION – FAMILY PROVISION – minor beneficiary –Public Trustee and Guardian Act 1985 (ACT), s 25 – whether Public Trustee and Guardian or private family member should be appointed to manage provision made out of estate

The Supreme Court has made orders under the Family Provision Act 1969 (ACT) adjusting provision made in a will so that the entirety of the proceeds of a deceased’s estate pass to her son.  The ACT Public Trustee and Guardian was appointed as trustee to manage the provision.

Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315

CONSUMER LAW – MISLEADING, DECEPTIVE OR FALSE CONDUCT – Advertising – representations as to future matters – reasonable grounds – whether the representor had reasonable grounds for the representations – representor must have had possession of facts and circumstances comprising reasonable grounds – burden of proof – evidential burden – services – facts and circumstances must objectively support the representations

CONSUMER LAW – SERVICES – Whether sale of land a service – nature or characteristics of services – representation as to “value” – representation as to “benefit” – representation as to “performance characteristic”

EVIDENCE – WITNESS EVIDENCE – Fallibility of recollection evidence – lack of independent corroboration – internal and external inconsistencies – no corroborative contemporaneous documents, objective facts or the inherent probability of events – evidence appearing for the first time in cross-examination – late appearing evidence ordinarily damages a witness’s credibility

CONTRACTS – CONSTRUCTION – Extrinsic evidence – admissibility of agreements executed contemporaneously and forming part of the same overall transaction – construction by rectification – necessary conditions to be fulfilled – commonsense approach to construing terms

STATUTORY INTERPRETATION – APPROACHES – Literalism not applied – context – full meaning of context – mischief to be addressed

AGENCY – CREATION OF AGENCY – More required than complete shareholding – indicia of agency – terms of agreements between multiple parties – rights and obligations in agreements insufficient of themselves to establish agency

CIVIL PROCEDURE – PLEADINGS – requirement to plead material facts – what are material facts – amendment – late application for amendment – prejudice – reasonable prior opportunity to have pleaded case – enough is enough

The Supreme Court has made findings in relation to a matter brought by the Commissioner for Fair Trading (the Commissioner) regarding representations made during the advertising process for a residential development (the development) at Woden Town Centre. The Commissioner sought findings that representations made that the light rail to Woden had received planning approval, the proximity of the development to the light rail stop, travel times and frequency of services of the light rail and the predicted rental yield of units in the development, were misleading, deceptive or false. The Supreme Court found in favour of the Commissioner. In relation to the representations as to future matters, the Court did not accept the evidence of the defendants’ witnesses, did not accept that the representor (the sales and marketing agent) had reasonable grounds material in its possession when the representations were made, and found that even if it did, that material did not amount to reasonable grounds for making the representations. The Court also found the development company liable as principal for the conduct of the sales and marketing agent, but the companies behind the development company were not liable on the principal/agent case brought by the Commissioner.

R v Bolton [2024] ACTSC 314 (SCC 102 of 2023)

CRIMINAL LAW – Judgment and Punishment – Sentence – possession of child abuse material – using carriage service to access child abuse material – where offender has disabilities from stroke suffered subsequent to offending – whether intensive correction order appropriate – full time imprisonment and release on recognizance ordered

The Supreme Court has sentenced an offender to a total effective term of imprisonment for 1 year and 11 months for two offences, being of possession and access of child abuse material. The offender is to be released on recognizance from 5 December 2024.

In declining to impose an intensive correction order that had been sought, the Court had regard to the level of seriousness of the offending and the need to give paramountcy to general deterrence.  However, the Court accepted the significant hardship that would be faced by the particular offender while in custody, due to complex medical conditions following a stroke in 2014.  While those conditions were not such as to constitute the exceptional circumstances required for immediate release, they did result in a significant shortening of the period of fulltime custody to be served.

CDLC Pty Ltd v Capital Estate Developments Pty Ltd (No 3) [2024] ACTSC 304

CIVIL LAW – Strike out Application – plaintiffs seek orders striking out various paragraphs of the first defendant’s Amended Defence and Counterclaim – third party seeks the entirety of the Third Party Notice be struck out – r 425(1) of the Court Procedure Rules 2006 (ACT) – first defendant claims the plaintiff engaged in misleading or deceptive conduct – finding of reliance on the part of the aggrieved party not necessary to found a cause of action for misleading and deceptive conduct under the Australian Consumer Law – adverse court order capable of constituting loss or damage under the ACL – novelty of claim not a reason to strike out pleadings – arguable cause of action under the ACL – impugned pleadings not frivolous, scandalous, unnecessary, vexatious or an abuse of process – application dismissed.

The Supreme Court has dismissed an application by the plaintiffs seeking orders striking out parts of the first defendant’s pleadings and an application by the third party for the Third-Party Notice to be struck out. The Court found that the first defendant had an arguable cause of action under the Australian Consumer Law (ACL) for misleading or deceptive conduct. The Court found that a finding of reliance is not necessary to found such cause of action and that an adverse court order is capable of constituting loss or damage.

DPP v Connell (No 3) [2024] ACTSC 259

PRACTICE AND PROCEDURE – JURISDICTION – Federal jurisdiction exercisable by Territory court – whether ACT Supreme Court has power to make orders binding upon Commonwealth or Commonwealth officer – consideration of s 48A of Australian Capital Territory (Self-Government) Act 1988 (Cth) – question inappropriate to resolve on interlocutory application without contradictor

CRIMINAL LAW – EVIDENCE – Evidentiary matters relating to witnesses and accused persons – application for nondisclosure orders in relation to identity information of witness and protection of identity of witness while giving evidence – power to make orders on national security or defence grounds – application allowed

The Supreme Court has allowed an application by the Commonwealth to make nondisclosure orders in a matter where the Commonwealth is not a party. The court allowed the application on the grounds that it was in the public interest for national security or defence reasons.

The Commonwealth, in seeking the orders, submitted that the ACT Supreme Court did not have the power to make orders binding upon Commonwealth or Commonwealth officers because the Commonwealth had not invested the ACT Supreme Court with federal jurisdiction. The court considered the submission but determined that it would be inappropriate to resolve the question on an interlocutory application where there was no contradictor.

DPP v Kilani [2024] ACTSC 264 (SCC 128 of 2022; SCC 129 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender charged with attempting to obtain financial advantage by deception and dangerous driving – parties agreed on facts but disagreed on characterisation of facts – offender sought to confine extent of deceptive and dishonest representations – prosecution contended offending involved substantial degree of premeditation – more serious offending found beyond reasonable doubt – offender sentenced to total of 17 months' imprisonment, suspended after eight months, and good behaviour period of two years

The Supreme Court has sentenced an offender to a total of 17 months' imprisonment, to be suspended after eight months, with an undertaking to be of good behaviour for a period of two years following his release.

The offender was sentenced for attempting to obtain financial advantage by deception and dangerous driving. The facts of the matter, which were agreed, involved deceptive and dishonest representations made by the offender to police and to his insurance company following a two-car collision. However, parties disagreed as to the scope of those misrepresentations—while the offender claimed that they were only to the extent of lying about who was driving at the time of collision, the prosecution asserted that the whole collision was staged as part of a wider scheme for financial benefit.

The court accepted the prosecution case and sentenced the offender on the more serious offending. The court considered the need for deterrence and denunciation of such conduct, and the offender’s failure to accept that his offending was as serious as the court found it to be.

Kennedy v Qantas Ground Services Pty Ltd (No 3) [2024] ACTSC 271

PRACTICE AND PROCEDURE – PLEADINGS – Application by defendants for order to compel plaintiff to either seek leave to appeal out of time or comply with previous orders – where plaintiff previously directed to file complying pleadings – where plaintiff failed to do so – plaintiff previously self-represented litigant – plaintiff recently engaged solicitors – additional time allowed for plaintiff’s new solicitors – application otherwise allowed

The Supreme Court has allowed an application by the defendants to a proceeding for orders that the plaintiff either seek leave to appeal out of time or comply with the previous orders of the court. The plaintiff had previously been directed to file pleadings which complied with the court rules but had failed to do so. The court granted the defendants’ application but allowed additional time for the plaintiff’s newly engaged solicitors to take the steps required to comply with the previous orders.

DPP v Mitchell (No 3) [2024] ACTSC 274 (SCC 319 of 2023; SCC 193 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – resentence – persistent sexual abuse of children and acts of indecency – early guilty plea – six victims – consideration of ss 56 and 92EA of Crimes Act 1900 (ACT) – maximum penalty 14 years where offending did not involve sexual intercourse – relative gravity increased where offending has maximum penalty of 14 years compared to offending where maximum penalty is 25 years – offending in upper-end of mid-range of objective seriousness – offender sentenced to aggregate 14 years and nine months’ imprisonment with non-parole period of 10 years

The Supreme Court has resentenced an offender to 14 years and nine month’s imprisonment with a non-parole period of 10 years for persistent sexual abuse of children involving six victims from 1994 to 2008.

The offender had previously been sentenced for the offending but successfully appealed those sentences on the grounds that the sentencing judge had applied the wrong maximum penalty. The Court of Appeal remitted the matter for resentencing, and the offender was resentenced using the correct maximum penalty. However, because the offending had originally been considered compared to the types of offending caught by the 25-year maximum penalty, the relative gravity of the offending in fact increased on the resentence, where those more serious offences could not be used as a comparison to assess the seriousness of the offending.

DPP v Donohue (No 3) [2024] ACTSC 272 (SCC 300 of 2023; SCC 164 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender charged with attempted murder and intentionally inflicting grievous bodily harm – offender cut throat of victim after being told to leave victim’s home – while in custody offender repeatedly stabbed another inmate with a broken tennis racquet handle – offender a young man with “complex diagnoses which are linked to his offending behaviour” – sentenced to 13 years and five months’ imprisonment with a non-parole period of six years

The Supreme Court has sentenced an offender to 13 years and five months’ imprisonment with a non-parole period of six years for attempted murder and intentionally inflicting grievous bodily harm.

The offender and his victim met one another while out drinking and the victim invited the offender back to his home to continue. The following morning, when the victim told the offender to leave, the offender attacked the victim with a knife, cutting his throat. Later, while in custody at the AMC, the offender attacked another inmate with a broken tennis racquet handle which had been sharpened into a wooden spike.

In calculating the sentence, the court took into account the offender’s young age and complex psychological conditions, which were balanced against the seriousness of the offending, recognition of the harm done to the victims and protection of the community.

Decision Restricted [2024] ACTSC 301

CRIMINAL LAW – EVIDENCE – Pre-trial application – sexual offence proceedings – counsel for the accused sought to cross-examine complainant in relation to sexual activities – whether leave granted under s 76(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT)

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.loukas-karlssonJ@courts.act.gov.au

Decision Restricted [2024] ACTSC 300

CRIMINAL LAW – EVIDENCE – Relationship evidence – context evidence – Pre-trial application

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.loukas-karlssonJ@courts.act.gov.au

R v McColl (No 3) [2024] ACTSC 291

CRIMINAL LAW – DRUG AND ALCOHOL SENTENCING LIST – Review – Drug and Alcohol Treatment Order – rehabilitation achieved – skydiving – graduation – order confirmed

The Supreme Court has graduated a participant from the supervision part of their Drug and Alcohol Treatment Order, moving them to the good behaviour portion of the order. The participant was sentenced in the Drug and Alcohol Sentencing List (DASL) in June 2022, and has remained committed to his rehabilitation since that date, achieving his goals and those of the DASL Treatment Team. The Court has celebrated the graduation of the participant, and commended him for how he has embraced his new life, engaging in kickboxing, gardening, and skydiving.

Previous occasions of graduations of participants from the Supreme Court Drug and Alcohol Sentencing list are accessible at:

https://www.courts.act.gov.au/supreme/about-the-courts/judiciary/speeches.

In the Estate of Audrey Mary Harvey [2024] ACTSC 299

WILLS, PROBATE & ADMINISTRATION – Application for appointment of independent executor – where jointly named executors are in dispute about who should be granted probate and how to administer the estate – where deceased died more than 15 months ago and probate has not yet been granted – where caveat lodged against grant of probate – whether it is just that an independent executor administer the estate – Court Procedure Rules 2006 (ACT) r 3114 – Administration and Probate Act 1929 (ACT) s 25.

Decision Restricted - [2024] ACTSC 302

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – advance ruling – application for severance – application to adduce tendency evidence – election for trial by judge alone – statutory construction of s 68B of the Supreme Court Act 1933 (ACT) – where some offences “excluded offences” and unable to be tried by judge alone – election for trial by judge alone not valid and effective – finding as to prejudice of multiple complainants and tendency evidence

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.DASL@courts.act.gov.au

Petersons v Pitches [2024] ACTSC 298

COSTS – settlement of dispute – whether any party acted unreasonably – where both plaintiff and first defendant had secured success – where Territory involved in proceeding as landowner and not the entity responsible for the register relating to land – no order as to costs

The Supreme Court has made no order as to costs following the settlement of a proceeding seeking to rectify boundaries in a registered plan.  The active parties were adjoining landowners and the Territory.  The plaintiff sought that the first defendant pay costs up to the point of settlement, relying on the fact that she had been successful and that the position adopted by the first defendant was unreasonable.  The first defendant sought that either the Territory pay her costs, or the plaintiff and the Territory jointly pay her costs of the proceeding on the basis that the plaintiff unreasonably contested the removal of a caveat.

The Court found each of the plaintiff and the first defendant had secured success upon settlement and that no party had acted unreasonably up to the point of settlement.  The Territory participated in the proceeding as a landowner rather than the entity responsible for an historical error in the register relating to land titles. The fairest course was to make no order with the consequence that the parties bore their own costs.

R v Lidden [2024] ACTSC 297 (SCC 183 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to groom a child – low objective seriousness – cognitive disability – Verdins principles – reduction in moral culpability – direct causal link between disability and offending – exceptional circumstances – recognizance release order

The Supreme Court sentenced an offender for using a carriage service to groom a person under 16 years of age, to 15 months of imprisonment to be released immediately on a recognizance release order on the condition that he be of good behaviour for 2 years. The objective seriousness of the conduct was at the lower end of the spectrum and there was a direct causal link between the offender’s disability and the offending.  The Court found that the existence of exceptional circumstances warranted immediate release on a recognizance release order.

DPP v Eichmann (No 2) [2024] ACTSC 260

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – DRUG AND ALCOHOL SENTENCING LIST – Judgment and Punishment – review of the Drug and Alcohol Treatment Order – cancellation – breach by exiting from residential rehabilitation facility – submit to jurisdiction while s 80ZJ warrant outstanding – demonstration of commitment and willingness towards rehabilitation – prosocial support for rehabilitation – lack of further offending while warrant outstanding – objects of the Treatment Order – cancellation application refused and Treatment Order continued.

The Supreme Court has refused an application by the prosecution to cancel a participant’s Drug and Alcohol Treatment Order (DATO) under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). The matter came before the Court during a review process under s 80ZH of the Sentencing Act after the participant, who was subject to a DATO, exited their residential rehabilitation program following illicit substance use. The Court refused the application to cancel the participants DATO, as they found that the participant was willing to engage with rehabilitative services and requirements, and was strongly motivated to address their substance abuse.

DPP v Xia [2024] ACTSC 295 (SCC 247 of 2023; SCC 248 of 2023)

CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated common assault – family violence offence – where genuine remorse established – rehabilitation prioritised by offender before sentence – low risk of re-offending – no relevant criminal history – sentence of imprisonment immediately suspended upon entering a good behaviour order

The Supreme Court has sentenced an offender to a suspended sentence of 6 months for an offence of aggravated common assault involving family violence. During a protracted argument one night, the offender had grabbed his wife on two occasions, one of which including him yelling at her while holding a knife. The offender had pleaded guilty, demonstrated genuine remorse and otherwise presented a strong subjective case including rehabilitative steps taken in the form of counselling.

DPP v Beroukas (No 2) [2024] ACTSC 294 (SCC 100 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of good behaviour order while offender serving suspended sentence – where breach was at lower end of seriousness – where offender had taken rehabilitative steps in the meantime – offender resentenced.

The Supreme Court has resentenced an offender following further breaches committed while he was serving a suspended sentence. The breaches were of a lower level of seriousness, and imposing the suspended sentence would be disproportionate.  The offender had also taken steps while in the community to rehabilitate. To avoid undoing the offender’s progress, the court resentenced the offender, imposing a longer sentence than that previously imposed but again suspending the sentence on condition that the offender comply with a 12-month good behaviour order.

DPP v Allred (No 2) [2024] ACTSC 243 (SCC 314 of 2022, SCC 315 of 2022; SCC 48 of 2023; SCC 49 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – s 80ZE cancellation of the Drug and Alcohol Treatment Order for unsatisfactory circumstances – imposition or resentence – breaches of treatment order obligations – discharge from residential facility – guarded prospects of rehabilitation – imposition instead of resentence – rehabilitation through parole.

The Supreme Court has sentenced an offender to a period of imprisonment of 3 years 10 months imprisonment, with a non-parole period of 2 years, 1 month, and 10 days. The offender was sentenced for offences including driving at police, two counts of driving while disqualified, dishonestly driving a motor vehicle without consent, and aggravated dangerous driving. The sentence was imposed pursuant to 80ZE(2) of the Crimes (Sentencing) Act 2005 (ACT), following the cancellation of the offender’s Drug and Alcohol Treatment Order.

DPP v Sullivan (No 2) [2024] ACTSC 296

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – aggravated robbery – extensive agreed facts – circumstantial case – coincidence evidence – identity of offender only issue for determination – CCTV footage

The Supreme Court has found the accused guilty of two counts of aggravated robbery. The primary issue at the judge-alone trial was the identification of the accused. The accused was the known perpetrator of a third robbery. The prosecution relied on coincidence reasoning to prove that the accused committed the two earlier robberies due to numerous similarities common to each of the offences. The Court found that there was no rational explanation for the circumstances established by the evidence other than the accused being the offender who committed all three of the robberies.

Decision Restricted - [2024] ACTSC 285

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –– application to withdraw guilty plea to count of assault occasioning actual bodily harm – underlying circumstances surrounding the plea – consideration of the principles in R v Gomez [2007] ACTCA 21; 1 ACTLR 145 and White v R [2022] NSWCCA 241; 110 NSWLR 163 – test in Gomez applied - whether miscarriage of justice would result if plea not withdrawn – applicant did not have a sufficient understanding of what he was pleading guilty to – applicant has asserted a version of events inconsistent with his guilt on the count – applicant denied essential element of that charge – application allowed

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.BakerJ@courts.act.gov.au

Marhaba v Chen (No 2) [2024] ACTSC 288

PRACTICE AND PROCEDURE – COSTS – where plaintiff successful in personal injury claim – where judgment sum awarded was less than the jurisdictional limit of the Magistrates Court – application of r 1725 of the Court Procedures Rules 2006 (ACT) – where plaintiff’s claim was complex but quantum of claim exaggerated – alternative costs order made – offers of compromise made under the Rules – Calderbank offers – where offers not accepted and judgment less favourable to plaintiff – where period of acceptance of offers was 4 days – offers not open for reasonable period under the Rules – not unreasonable for plaintiff to reject offer in the circumstances

The Supreme Court has varied a costs order previously made on 26 July 2024 following the plaintiff’s success in a personal injury claim arising from a motor vehicle accident.  The defendant sought to rely upon offers made under part 2.10 of the Court Procedures Rules 2006 (ACT) and alternatively relied upon Calderbank principles.  Neither offer was effective as the Court found that the offers were only open for 4 business days, which was not a reasonable time in the circumstances. Alternatively, it was not unreasonable for the plaintiff not to respond to the offers for the same reason.

However, as the plaintiff had succeeded in an amount that was within the jurisdiction of the Magistrates Court, the defendant argued the plaintiff should not be entitled to the full amount of her costs on the ordinary basis.  In the exercise of the Court’s discretion and having regard to the complexity of the matter notwithstanding the amount ultimately awarded, the defendants were ordered to pay 85% of the plaintiff’s costs.

DPP v RR [2024] ACTSC 279 (SCC 132 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated act of indecency without consent – offending involved family violence – serious offending – involved a breach of trust – offender knew victim was not consenting – low risk of re-offending – had engaged in rehabilitation after being remanded in custody – significant protective factors – limited criminal history – guilty plea – partly suspended sentence imposed – good behaviour order – offender to engage in sexual offending programs as directed.

The Supreme Court sentenced an offender for an act of indecency without consent, to 2 years, 4 months, and 27 days of imprisonment to be suspended that day, after the offender had already served 24 days of imprisonment, with a Good Behaviour Order to follow. The sentence was discounted by 15% for a plea of guilty. The offending was against the offender’s ex-partner and the offender knew that the victim was not consenting. The offender had rehabilitated himself to some extent, was not a risk of re-offending and had protective factors. The offender was directed to participate in education programs as directed during his good behaviour order, including a program targeting sexual offending.

DPP v Williams [2024] ACTSC 283 (SCC 158 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – single act of penile-vaginal penetration – limited remorse – guarded prospects of rehabilitation – some protective factors – minimal criminal history – period of full time imprisonment necessary to achieve sentencing purposes – partly suspended sentence imposed.

The Supreme Court has sentenced an offender for an offence of sexual intercourse without consent to 2 years of imprisonment reduced from 2 years and 6 months of imprisonment for a guilty plea. The sentence is to be suspended after the offender has spent 6 months in custody, upon entering into a good behaviour order for the balance of the sentence.

DPP v Okwechime [2023] ACTSC 199

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – applicant charged with aggravated burglary, damage property and theft – where investigation into further criminal conduct ongoing – where information obtained about applicant associating with outlaw motorcycle gang – where lengthy criminal antecedents included multiple breaches of bail and failure to appear – bail refused

DPP v Okwechime (No 2) [2024] ACTSC 34

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – alleged breach of s 230 of the Crimes Act 1900 (ACT) – Acting Sergeant directed officers to take photographs of accused – whether there is statutory capacity to delegate the power under s 230 – definition of “take” in s 185 includes “requesting another person to take” photographs – whether an Acting Sergeant is a “Sergeant” – police services provided to the Territory by the Australian Federal Police (AFP) – Territory references to “rank” are interpreted by reference to Commonwealth laws establishing the AFP – Australian Federal Police Act 1979 (Cth) picks up powers conferred by Territory laws and applies them to AFP officers – Territory laws apply to an acting appointee as if they hold the actual office

CRIMINAL LAW – POLICE – Rights, powers and duties – pre trial application to exclude evidence – scope of premises identified in search warrant – where police searched vehicle parked in car parking space allocated to unit the subject of the search warrant – whether a car parking space or storage shed associated with a unit falls within the “premises” described by reference to the unit number – consideration of Unit Titles Act 2001 (ACT) – a unit includes any unit subsidiary shown on the units plan as annexed to the unit – car parking spaces and storerooms capable of registration as unit subsidiaries – search of vehicle in car parking space permitted by the search warrant

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – alleged non compliance with ss 23F, 23H and 23V of the Crimes Act 1914 (Cth) – where accused was a “protected suspect” – breach of s 23V not made out as questioning of accused captured on police body worn camera footage – breach of s 23F not made out as accused cautioned at beginning of questioning and periodically throughout execution of warrant – police failed to contact an Aboriginal legal assistance organisation and to offer accused an interview friend – established breach of s 23H

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, arrests, search, seizure and incidental powers – pre-trial application to exclude evidence – contravention of s 23H Crimes Act 1914 (Cth) – police failed to contact an Aboriginal legal assistance organisation or arrange an interview friend – accused helped police to locate items listed in search warrant – applicants failed to establish that compliance with s 23H would have meant police did not locate items – consideration of factors in s 138(3) Evidence Act 2011 (ACT) – desirability of admitting evidence outweighs undesirability of admitting evidence obtained in the way that it was

The Supreme Court has ruled on a pre-trial application to exclude evidence obtained during the course of, and subsequent to, the execution of a search warrant. Police obtained evidence sought to be relied on at the trial. The applicants alleged breaches of ss 23F, 23H and 23V of the Crimes Act 1914 (Cth) arising from the manner in which the search warrant was executed. The court determined that only a breach of s 23H was established, arising out of the police’s failure to contact an Aboriginal legal assistance organisation and to offer the accused an interview friend. However, the applicants failed to establish that compliance with s 23H would have prevented police from locating the items and thus the evidence was not inadmissible.

The applicants further alleged a breach of s 230 of the Crimes Act 1900 (ACT). The applicants argued that an “Acting Sergeant” was not a “Sergeant” for the purposes of s 230. The court held that, in circumstances where police services are provided to the Territory by the Australian Federal Police (AFP), Territory references to “rank” are interpreted by reference to the Commonwealth laws establishing the AFP. The Australian Federal Police Act 1979 (Cth) picks up the powers conferred on police by Territory laws and applies them to AFP officers. Therefore, Territory laws apply to an acting appointee as if they hold the actual office.

Finally, the court held that a vehicle located in a car parking space allocated to the unit the subject of the search warrant was within the “premises” identified in the search warrant. By reference to the Unit Titles Act 2001 (ACT), the court found that a unit includes any unit subsidiary shown on the units plan as annexed to the unit. As the car parking spaces were likely to be unit subsidiaries, the search of a vehicle in the unit’s allocated car parking space was held to be lawful.

DPP v Cross [2024] ACTSC 277

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – extensive agreed facts – aggravated burglary – theft – take motor vehicle without consent – circumstantial case – strands in the cable case – identification evidence – DNA evidence – reasonable hypothesis consistent with innocence – potential twin brother – verdicts of not guilty

The Supreme Court finds accused not guilty of 2 counts of burglary, 2 counts of take motor vehicle without consent, 2 counts of drive motor vehicle without consent, 2 counts of theft, two charges of drive while suspended, make off without payment and dishonestly obtain property by deception. Primary issue at trial was the identification of the offender. The Court found that the evidence did not exclude the reasonable possibility of the accused’s brother being his identical twin and this was a hypothesis consistent with innocence as it could not be excluded that the accused’s brother was the individual identified.

DPP v Okwechime (No 3) [2024] ACTSC 275

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – verdict – aggravated burglary – property damage – theft – extensive agreed facts – circumstantial case – strands in the cable case – identification evidence – identity of accused only issue for determination – verdicts of not guilty.

SupCt finds accused not guilty on three counts of aggravated burglary, damage property and theft. The only issue for determination was the identification of the accused. It was a circumstantial case, and the Court could not be satisfied beyond reasonable doubt that the accused was the same person who committed the offences.

DPP v Hogan [2024] ACTSC 245 (SCC 134 of 2024; SCC 135 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – family violence offences – choking and strangulation – impersonating territory official – contravention of family violence order – coercion and controlling behaviour viewed in context – where the Court is not satisfied that substance dependency substantially contributed to part of offences sought to be incorporated into a Treatment Order – history of non-compliance with community based orders and family violence orders – childhood trauma and complex history of disadvantage – Bugmy principles – Drug and Alcohol Treatment Order not imposed – rehabilitation through parole.

The Supreme Court sentenced an offender for a series of family violence offences, including choke/suffocate/strangle, threat to kill, contraventions of family violence order and impersonating a police officer. The Court considered the complexity of coercion and controlling behaviours in the circumstances of the offending, the age of the offender, the limited insight and remorse expressed, as well as the history of complex trauma within the offender’s family background. The Court further determined that substance dependency did not substantially contribute towards all of the offences, noting that some of the offences were committed while the offender was in custody for family violence offences against the same victim. The Court declined to make a Drug and Alcohol Treatment Order and imposed a total sentence of 3 years imprisonment, including a nonparole period of 14 months expiring in April 2025.

Law Society v Ford [2024] ACTSC 255

PRACTICE AND PROCEDURE – MEDIATION – Application by defendant for court-ordered mediation pursuant to r 1179 of the Court Procedures Rules 2006 (ACT) – application opposed by plaintiff – utility of mediation in matter with long procedural history and where parties have significantly conflicting positions – application dismissed.

PRACTICE AND PROCEDURE – DIRECTIONS – Application by plaintiff to retrospectively vary timetable for filing of written submissions – where consent refused by defendant unreasonably – where plaintiffs filed detailed affidavit evidence explaining delay – order varying filing timetable appropriate .

The Supreme Court has dismissed an application in proceeding by the defendant in this matter and allowed an application in proceeding by the plaintiff. The application by the defendant was brought under r 1179 of the Court Procedures Rules 2006 (ACT) seeking a court-ordered mediation and a stay of proceedings pending the outcome of the mediation. The long procedural history of the matter and significant difference in positions of the parties in relation to the key issues in dispute led to a conclusion by the court that there would be no utility in ordering a mediation.

The plaintiff’s application sought a retrospective variation of directions to reflect a delay by the plaintiff in filing written submissions. The defendant did not consent to an extension of time and therefore an application in proceeding was necessary. Solicitors for the plaintiff provided detailed affidavit evidence to support their request for a retrospective variation and provided reasonable explanations for the delay, therefore a retrospective variation was considered to be appropriate.

Doma ACT Pty Ltd v LN Sydney Pty Ltd [2024] ACTSC 270

EQUITY – RECTIFICATION – mistake in recording name of corporate entity in unilateral instrument – company resolution to distribute ordinary income to corporate entity – where clear and convincing proof of makers’ intentions corroborated by contemporaneous documents – where resolution does not give effect to makers’ intention – where mistake clearly identifiable – resolution rectified

The Court has granted rectification in respect of a company resolution made in June 2022, for a mistake made identifying the wrong corporate entity as a recipient of a $10 million distribution of income by the plaintiff.  The Court found the resolution (a unilateral instrument) did not reflect the intentions of the directors at the time it was executed, having regard to the contemporaneous financial documents and records of advice given and approved at the time the resolution was made.  The instrument recording the resolution was capable of rectification by substituting the name of the correct entity, which was Little National Hotel Pty Limited.

Tong v Tong [2024] ACTCA 27

Judgment Summary

APPEAL – EQUITY – Undue influence – appeal on ground that primary judge erred in finding that inter vivos transfer was result of undue influence – where primary judge found relationship gave rise to presumption of undue influence – where presumption was not rebutted – whether open to primary judge to find presumption of undue influence – consideration of combined force of circumstances – no error established – appeal dismissed

APPEAL – TRUSTS – Constructive trusts – appeal on ground that primary judge erred in finding that property was held by the deceased’s sister on trust for the benefit of the deceased – where primary judge found the deceased considered property to be his own – where primary judge found the deceased to have paid his sister amount equal to his equity in the property – whether open to primary judge to find existence of constructive trust – no error established – appeal dismissed

STATUTES – INTERPRETATION – Interpretation of r 5413 of Court Procedures Rules 2006 (ACT) – where respondents’ cross appeal sought to “amend” orders of primary judge – whether reference to “amend” is different to “appeal” – whether rule places lesser burden on respondent seeking to amend – whether seeking to amend requires party to establish error – establishment of error required – no error established – cross appeal dismissed

The Court of Appeal has unanimously dismissed an appeal against a decision of a single judge which had found that a gift of $360,000 made by a deceased to his brother in the weeks before his death was the result of undue influence, and that the deceased’s residential property was held by his sister on trust for the benefit of the deceased.

The court found that the primary judge had not erred in her assessment of the relationship that existed between the deceased and his brother prior to his death as one which gave rise to the presumption of undue influence. The court upheld the finding of the primary judge that the presumption had not been rebutted.

The court also found that the primary judge had not erred when she found that the deceased’s family home was, in fact, held on trust for the deceased by his sister. The sister argued that the house was hers and was an investment property which she “rented” to the deceased. However, the court upheld the finding of the primary judge that this was not the case and that the deceased had merely transferred legal ownership to his sister while maintaining beneficial ownership. The deceased’s widow and four children continue to live in the home.

The court also dismissed a cross-appeal that would have substituted the deceased’s widow and eldest son as executors of the deceased’s estate and as trustees to the trust established for the benefit of the deceased’s four children. The court found that the primary judge had not erred when she made the ACT Public Trustee and Guardian the executor and trustee and found that the possibility for a conflict of interest to arise was too great in the event that the deceased’s widow and eldest son were appointed.

Robertson v DPP [2024] ACTCA 26

Judgment summary

APPEAL – CRIMINAL LAW – appeal against sentence – attempted murder – breach of family violence order – whether discount for plea of guilty inadequate – whether total effective sentence and non-parole period manifestly excessive – where offence of attempted murder fell into “worst category” of offending – where no mitigating subjective factors apart from plea of guilty – appeal dismissed.

The Court of Appeal has dismissed an appeal against a sentence of imprisonment for a term of 27 years and 3 months, which was imposed for the offences of attempted murder and attempted breach of a family violence order (FVO). The appellant had challenged the 10% discount applied for a plea of guilty in respect of the attempted murder offence as well contending that the sentence was manifestly excessive (both the individual and aggregate terms, and the non-parole period).

The Court of Appeal unanimously held that there was no error in respect of either ground.  The attempted murder offence was properly classed as a “worst category” offence.  The approach taken to the guilty plea was discretionary and ensured the lesser penalty was not unreasonably disproportionate to the seriousness of the offence.

The conduct constituting the attempted murder offence was grave and the harm caused extreme.  Given the lack of mitigating circumstances and remorse, the recidivist violent nature of the offender and his failure to engage fully with the rehabilitative opportunities which had been provided to him in the past, the sentence imposed by the sentencing judge was open.

Otherwise, there was no manifest excess established in relation to the attempted breach of the family violence order offence, the imposition of each sentence consecutively, or the length of the non-parole period set.

DPP v Gilbey; DPP v Goodwin [2024] ACTSC 265 (SCC 137 of 2023; SCC 139 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – co-offenders – aggravated robbery – home invasion – serious offending – where victim suffered serious injury – low value of property taken – distinction between the role of each offender – difference between co-offender’s prospects of rehabilitation – offences committed on conditional liberty – consideration of parity.

The Supreme Court has sentenced two co-offenders for aggravated robbery by joint commission. Co-offender Gilbey received a sentence of imprisonment for 3 years, 7 months and 6 days. Co-offender Goodwin received a sentence of 3 years, 1 month and 24 days to be suspended after 1 year, 2 months and 11 days. The co-offenders each breached numerous Good Behaviour Orders attached to Suspended Sentence Orders at the time of committing the offence. Suspended sentences were imposed.  Significant distinction between the role of each co-offender in the offending conduct and their respective prospects for rehabilitation.

Armstrong v Saddler [2024] ACTSC 263

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – appeal against sentence imposed by Magistrates Court – assault occasioning actual bodily harm – family violence – ex tempore judgment – error in considering the availability of a good behaviour order – where appellant seeking non-conviction order – effect of conviction on appellant’s employment - no lesser sentence than imposed by Magistrate appropriate in all of the circumstances – appeal dismissed.

The Supreme Court has dismissed an appeal by an offender against a conviction and fine of $1400 that was imposed in the Magistrates Court for a charge of assault occasioning actual bodily harm in a family violence context. The appellant sought a non-conviction order. The Court found the Magistrate erred when considering the effect of a good behaviour order which may be attached to a non conviction order. However, the Court found that no lesser sentence than that imposed by the Magistrate was appropriate in all of the circumstances.

Block 27 Pty Ltd v Qursa Pty Ltd (No 2) [2024] ACTCA 25

PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Application to set aside orders of the Court of Appeal – question of practice and procedure able to be determined by single judge – where orders were drawn up, settled and signed by Registrar on own initiative – whether orders were “filed in the court” for the purposes of r 1613 of the Court Procedures Rules 2006 (ACT) –consideration of process for filing of orders under r 1606 – orders were “filed in the court” – application dismissed

The Court of Appeal has dismissed an application to set aside its own orders. The court had previously ordered that the appeal be dismissed, and the application sought to set that aside on the assertion that the orders denied the appellant procedural fairness.

Soon after the original Court of Appeal judgment had been handed down, the orders were drawn up, settled and signed by the Registrar. The parties agreed that the application was able to be heard by a single judge constituting the Court of Appeal, who determined that the orders were considered “filed in the court” and were, therefore, considered final and unable to be recalled.

DPP v Coulter [2024] ACTSC 262 (SCC 18 of 2024; SCC 19 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated dangerous driving – drive vehicle near police – drive motor vehicle without consent – drive while disqualified – serious offences – criminal history including driving offences – committed while offender was on conditional liberty –  where offender had disadvantaged childhood – Bugmy principles applied –  offender demonstrated remorse – positive prospects of rehabilitation – risk of institutionalisation – partially suspended sentence imposed.

The Supreme Court has sentenced an offender to imprisonment for 3 years and 2 months to be suspended after 14 months, for driving related offences included dangerous driving, driving a stolen vehicle, driving while disqualified and driving near two police officers. The offender entered an early plea of guilty and was afforded a 25% discount on the sentence. The offender had a significantly disadvantaged childhood such that his moral culpability was reduced, showed genuine remorse and had some prospects for rehabilitation.

In the Estate of Margaret Anne Cervo (administrator pendente lite appointed) [2024] ACTSC 253

ESTATES – Application for judicial advice – solicitor’s lien –whether administrator is justified in bringing proceedings against former solicitors of the deceased – where administrator pendente lite sought deceased’s files from solicitor – where basis of lien related to outstanding fees in respect of files of deceased’s husband and further sought costs of resolving the lien claimed – judicial advice given – administrator justified

DPP v XK (No 2) [2024] ACTSC 215

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender committed to the Supreme Court for breach of suspended sentences – s 107(2) of the Crimes (Sentence Administration) Act 2005 (ACT) – finding of guilt a necessary precondition to committal under s 107(2).

The order of Special Magistrate Richter dated 9 July 2024 committing the offender to the Supreme Court to be dealt with for breach of the offender’s good behaviour obligations is set aside.

DPP v Rhodes [2024] ACTSC 216 (SCC 86 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –attempt robbery – assault occasioning actual bodily harm – damage property – possess knife in public – Drug and Alcohol Treatment Order Assessment – refusal to participate in therapeutic community while in custody – limited insight and remorse for offending – history of non-compliance with community based orders – not appropriate to impose a Drug and Alcohol Treatment Order – age and subjective circumstances of the offender – rehabilitation through parole

The Supreme Court sentenced an offender for attempt robbery, damage property, making a demand accompanied by a threat, assault occasioning actual bodily harm and possess a knife in a public place. The offender sought to be placed on a Drug and Alcohol Treatment Order to serve the term of the sentence to be imposed for the offences. The Court considered the circumstances of the offending, the lack of engagement by the offender in the therapeutic community while in custody and the limited evidence of remorse expressed by the offender in reports for suitability for a Drug and Alcohol Treatment Order. The Court also noted the limited support and connection between the offender and his family due to the offender’s ongoing drug dependency. The Court declined to make a Drug and Alcohol Treatment Order and imposed a term of imprisonment of 22 months, with nonparole period ending in February 2025.

DPP v Hammond (No 2) [2024] ACTSC 177 (SCC 56 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – unsatisfactory circumstances – nature of breach of Treatment Order – where extent of compliance had been poor – limited progress in rehabilitation while in custody – imposition s 80ZE – rehabilitation through parole

The Supreme Court sentenced an offender whose Drug and Alcohol Treatment Order imposed in relation to family violence offences was cancelled on unsatisfactory circumstances. The offender tested positive to drug and alcohol on multiple occasions, breached curfew conditions and missed case management appointments while on the Treatment Order. Following the cancellation of the Treatment Order, the offender had engaged in efforts towards rehabilitation. However, he had not engaged with the therapeutic community in custody and showed limited insight into his offending. The Court imposed the balance of the term of imprisonment incorporated into the custodial part of the Treatment Order and set a nonparole period to end in January 2025, with a recommendation to the Sentence Administration Board for the offender to engage in drug rehabilitation and family violence intervention programs while on parole.

DPP v Myles (No 2) [2024] ACTSC 231 (SCC 115 of 2023; SCC 116 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Drug and Alcohol Treatment Order cancelled – unsatisfactory circumstances – s 80ZE imposition or resentence – resentence – rehabilitation in custody – intensive correction order.

The Supreme Court resentenced an offender whose Drug and Alcohol Treatment Order was cancelled for unsatisfactory circumstances. The offender was sentenced to 3 years 11 months for burglary, possession of stolen property, and a series of driving offences, which, on conviction and sentence, were incorporated into the custodial part of a Drug and Alcohol Treatment Order. Following the cancellation of the Treatment Order, the offender actively participated in rehabilitation in custody, making him eligible for further rehabilitation programs in community on release. The Court also considered a report from the Corrective Services, which assessed the offender as suitable for an intensive correction order where the offender would receive support from his family to comply with the order while residing with them. Noting the strong prospects of rehabilitation, the Court resentenced the offender by ordering that the remainder of the term of imprisonment to be served through an intensive correction order.

Alananzeh v Zgool Form Pty Ltd (No 2) [2024] ACTSC 258

PRACTICE AND PROCEDURE – Application for stay of order pending appeal and cross-appeal – Judgment in favour of plaintiff in personal injury proceeding – whether impecunious plaintiff – whether serious issues for determination raised on cross-appeal – whether real risk that second defendant may suffer prejudice or damage if the stay is not granted – whether balance of convenience favours maintenance of status quo pending appeal proceeding – where competing rights of the parties requires balance of hardship produced by stay on plaintiff – conditional stay granted

The Supreme Court has stayed a judgment which found a subcontractor liable for damages in negligence in the amount of $243,900, pending determination of an appeal from the plaintiff worker seeking to increase the judgment amount, and a cross-appeal by the subcontractor on liability and quantum.  The plaintiff had lodged a statutory demand for the full judgment sum against the subcontractor and there was evidence he was in financial hardship. The subcontractor sought a stay of the judgment on the basis that if it was successful on the appeal, the plaintiff would not be able repay any part of the judgment sum that had been paid in the meantime. The SupCt found serious questions to be tried on the cross-appeal and granted the stay on condition that the subcontractor pay $45,000 to the plaintiff to partially ameliorate the financial hardship to the plaintiff in the meantime.

DPP v Lowes [2024] ACTSC 252 (SCC 90 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – where offender misappropriated funds of employer by diverting ticket sales receipts from employer’s account to personal account to fund gambling addiction – simple method of offending - mid-range of objective seriousness – guilty plea, expression of remorse, family caring responsibilities and pro-social behaviour – intensive correction, community service and reparation orders appropriate.

The Supreme Court has sentenced an offender to two years and one month’s imprisonment on one charge of obtaining a financial advantage by deception. The offender was an Events Coordinator at Master Builders Australia Ltd, who misappropriated company funds by replacing the recipient bank account details of ticket sales funds from the company account to his own personal account. This offending was done to fund the offender’s gambling addiction.

The offender pleaded guilty at an early stage of proceedings, demonstrated remorse for his conduct, participated actively in the community and had significant family caring responsibilities. In the circumstances, the court decided upon a sentence of two years and one month’s imprisonment to be served by intensive correction in the community, a reparation order of $5414.57 to the victim and an additional condition of 200 hours of community service to be performed.

DPP v Ledbrook-Miller [2024] ACTSC 254 (SCC 85 of 2023; SCC 86 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated assault occasioning actual bodily harm – aggravated property damage – family violence offences – Verdins and Bugmy considerations – discount for guilty plea – where offer to plead guilty not accepted by prosecution – offender sole carer of his children – imposition of suspended sentences backdated by pre-sentence imprisonment

DPP v Joliffe-Cole [2024] ACTSC 256 (SCC 39 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – in company – injury to victim – low value of property taken – where offender had disadvantaged childhood and illicit substance abuse issues – expressed genuine remorse – significant criminal history – timing of plea of guilty in the Magistrates Court – twenty-five per cent discount applied.

The Supreme Court has sentenced an offender to a sentence of imprisonment for 2 years 7 months and 15 days, for a charge of aggravated robbery. The offender entered an early plea of guilty and was afforded a 25% discount on the sentence. The offending caused harm to the victim, was in company, involved the use of a weapon and the taking of some property of low value. The offender had a disadvantaged childhood, showed genuine remorse and had good prospects for rehabilitation.

DPP v Tony Bravo (a pseudonym) [2024] ACTSC 221 (SCC 227 of 2023; SCC 228 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – profound family tragedy – sexual offending against siblings and cousin – offender a young person for some offending – Bugmy and Verdins principles engaged – significant weight attributed to remorse – prospects of rehabilitation somewhat better than only guarded – offender sentenced to imprisonment

The Supreme Court has sentenced an offender for sexual offending against his relatives. A “profound family tragedy”. The offender was a young person for 6 of the counts. The offender demonstrated both significant remorse and willingness to seek psychological treatment.

The offender was sentenced to a total sentence of 6 years and 6 months imprisonment, backdated to take into account 2 years and 7 days already spent in custody. A non-parole period of 2 years and 3 months was set for the adult offences, allowing for a significant period of community supervision if and when granted parole. That is an effective non-parole period of 3 years and 3 months.

In the Estate of Nola Marie Harrington [2024] ACTSC 250

PROBATE APPLICATION – JURISDICTION, PRACTICE AND PROCEDURE – revival of revoked will by codicil – where no reference in codicil to intermediary will – whether revived will revoked intermediary will.

DPP v Baudinette [2024] ACTSC 157 (SCC 9 of 2024; SCC 10 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission aggravated robbery – possess knife without reasonable excuse – commission of offences during an Intensive Correction Order – where the Intensive Correction Order had been cancelled by Sentence Administration Board prior to imposition of sentence – not in the interests of justice to cancel – insight and efforts towards rehabilitation – Drug and Alcohol Treatment Order imposed.

The Supreme Court sentenced an offender for joint commission of aggravated robbery and possess a knife in public without reasonable excuse. The offender committed the offences while on an Intensive Correction Order. Noting that the Sentence Administration Board has cancelled the Intensive Correction Order on its own motion and returned the offender to custody prior to the imposition of the sentence for the offences, the Court determined that it was not in the interests of justice to cancel the Intensive Correction Order. The Court considered the circumstances of the offending and the offender’s non-linear history of rehabilitative efforts, as well as the recommendations by the authors of the Drug and Alcohol Treatment Assessment Reports. The Court determined that the offender had prospects of rehabilitation and sentenced the offender to a Drug and Alcohol Treatment Order for a total period of 1 year 10 months, with 12 months of treatment and supervision on the Drug and Alcohol Sentencing List.

DPP v Bower (No 3) [2024] ACTSC 249 (SCC 31 of 2021; SCC 32 of 2021; SCC 78 of 2021; SCC 79 of 2021; SCC 170 of 2022; SCC 171 of 2022)

CRIMINAL LAW – Judgment and Punishment – breach of suspended sentence – obtaining property by deception –whether to resentence – where breaches not especially serious – breaching conduct reflective of difficulty engaging with supervisions – where offender had not re-offended for a significant period – where offender had taken rehabilitative steps – re-sentenced and Good Behaviour Order imposed

The Supreme Court has re-sentenced an offender who breached the obligations of her Good Behaviour Order (GBO) which were imposed upon her as part of a Suspended Sentence Order (SSO). The offender’s GBO was cancelled, and she was re-sentenced to a total period of imprisonment of 3 years and 6 months suspended immediately on the condition that she be of good behaviour for 12 months. While the offender had experienced difficulty in complying with the supervision obligations of her GBO, she had made significant progress toward rehabilitation as demonstrated by a lack of re-offending.

DPP v John (No 2) [2024] ACTSC 199 (SCC 318 of 2022; SCC 62 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – s 80ZD cancellation of Drug and Alcohol Treatment Order – breach by commission of offence while subject to Treatment Order – s 80ZC suspension of treatment and supervision part – statutory construction – “subject to” a sentencing order – temporal co-existence of the Treatment Order and a sentencing order – s 34AA submissions on range of sentences – where time in custody prior to sentencing has exceeded length of the sentence – s 80ZD cancellation not enlivened – Treatment Order amended

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – take motor vehicle without authority – damage property – offending while on conditional liberty – nature and circumstances of the offence – term of imprisonment imposed – time served

The Supreme Court has sentenced a participant of the Drug and Alcohol Sentencing List for take motor vehicle without authority and damage property. The offences were committed in the course of the participant’s Drug and Alcohol Treatment Order following the participant’s release from a residential facility. Accordingly, the Court commenced a review of the participant’s Treatment Order noting the participant was in breach of the conditions of the order.

The participant had been in custody since the arrest following the further offending for approximately six months by the time of the sentence proceeding. Noting the range of sentence submitted for the further offences under s 34AA of the Crimes (Sentencing) Act, the Court considered the time served in custody by the participant prior to sentencing would have exceeded the length of the sentence of imprisonment to be imposed for the offences.

The Court determined that the interpretation of “subject to” under s 80ZD of the Crimes (Sentencing) Act requires temporal co-existence of the Treatment Order and a sentencing order under s 12A of the Crimes (Sentencing) Act. The Court imposed 5 months imprisonment for the further offences and concluded that s 80ZD cancellation of the Treatment Order was not enlivened, as the offender was not subject to a sentencing order with time served for the further offences.

R v Cooper [2024] ACTSC 235 (SCC 314 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges of possessing or controlling child abuse material, using a carriage service to access, make available, and solicit child abuse material, possessing child exploitation material, and failing to report a change of details as a child sex offender – offender possessed 283,167 files which were images or video identified as child abuse material – previously convicted for possession of child abuse material – diagnosed with Autism Spectrum Disorder and Paedophilic Disorder – where offender seems to have regarded it as a hobby like stamp collecting – sentence to be appropriate in all circumstances and not a crushing one – cumulative sentence of nine years and eight months with aggregate non-parole period for Commonwealth and Territory offences of five years and seven months

The Supreme Court has sentenced an offender to nine years and eight months’ imprisonment with an aggregate non-parole period of five years and seven months for multiple charges, including possessing or controlling child abuse material, using a carriage service to access, make available, and solicit child abuse material, possessing child exploitation material, and failing to report a change of details as a child sex offender.

The offender, who had a previous conviction for possession of child abuse material, pleaded guilty to the charges, including possession of 283,167 files which were images or video identified as child abuse material. The offender’s lawyers submitted five psychological reports of the offender, including diagnoses of Autism Spectrum Disorder and Paedophilic Disorder, which the court took into account when deciding on an appropriate sentence.

Buttriss v Jarvis [2024] ACTSC 247

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against conviction – whether a miscarriage of justice occurred – whether the verdict was unreasonable or unsupported by the evidence – whether the Special Magistrate made errors of law – assessment of the credibility of prosecution witnesses – error not established – each ground of appeal not upheld – appeal dismissed – conviction confirmed.

The Supreme Court has dismissed an appeal from the Magistrates Court against a conviction on a charge of aggravated common assault; the circumstance of aggravation was family violence. The grounds of appeal were that there had been a miscarriage of justice, that there was insufficient evidence to justify the conviction, that errors of law and fact had been made by the Special Magistrate and that there was error in the assessment of the credibility of prosecution witnesses by the Special Magistrate. The Court found none of the grounds of appeal had been established and dismissed the appeal, confirming the conviction.

DPP v Liu [2024] ACTCA 23

Judgment Summary

APPEAL – CRIMINAL LAW – Prosecution appeal against sentence – sexual intercourse without consent – act of indecency – sexual offending by massage therapist – whether sentencing judge erred in not being satisfied beyond reasonable doubt of the offender’s motive – specific error established – offender was motivated by sexual gratification – residual discretion not exercised – appeal allowed – offender resentenced.

The Court of Appeal has allowed a prosecution sentence appeal. Chief Justice McCallum and Taylor J held that it was “not open to the sentencing judge not to be satisfied beyond reasonable doubt” that the offending was sexually motivated.  The offender was resentenced to a total effective sentence of 5 years, 5 months and 20 days’ imprisonment, with a non-parole period of 3 years. Justice Loukas-Karlsson dissented, finding no error.

R v Novakovic; DPP v Novakovic [2024] ACTSC 219

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Good Behaviour Order – s 112 Crimes (Sentence Administration) Act 2005 (ACT) application to amend –  where applicant subject to curfew conditions for three years – whether curfew conditions onerous or excessive –  whether curfew conditions limit applicant’s rehabilitation and integration – power to amend GBO that has been transferred to another state or territory – application granted

DPP v Matas [2024] ACTSC 234 (SCC 271 of 2023; SCC 313 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated sexual intercourse without consent - attempted aggravated sexual intercourse without consent - aggravated sexual assault in second degree - aggravated sexual assault in third degree - aggravated act endangering health - aggravated common assault - aggravated assault occasioning actual bodily harm - aggravated capture intimate data - using a carriage service to menace, harass, or cause offence - aggravated non-consensual distribution of intimate images – escape arrest – possess prohibited weapon –  Bugmy and Verdins principles engaged – countervailing factor

The Supreme Court has sentenced an offender for 25 offences, including 11 charges of aggravated sexual intercourse without consent (ACT) and a Commonwealth offence of using a carriage service to menace, harass, or cause offence. All but three of the 25 offences were statutorily aggravated by virtue of family violence.

The offender was on bail at the time of the offending. The Court considered the offender’s prospects of rehabilitation to be guarded at best.

The overall aggregate sentence is 13 Years 2 months 29 days. The non-parole period is approximately 60%.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 6) [2024] ACTCA 21

APPEAL – APPLICATION FOR LEAVE TO APPEAL – Whether appeal can be made from an interlocutory decision when substantive proceedings have been dismissed – whether an appeal from an interlocutory decision separate from an appeal of the substantive matter is pointless

(1)          The application for leave to appeal filed on 24 June 2024 is dismissed

(2)          The applicant is to pay the respondent’s costs of the application

DPP v Basic (No 2) [2024] ACTSC 187 (SCC 112 of 2023)

CRIMINAL LAW – OFFENCES AGAINST THE PERSON – Acts endangering life – choke, suffocate or strangle – render insensible or unconscious – family violence – complainant shouting at accused and throwing watermelon on floor – accused held neck of complainant to get her to “shut up” – whether complainant was rendered insensible or unconscious – consideration of the meaning of “apply pressure, to any extent” – not found beyond reasonable doubt that complainant was rendered insensible or unconscious – found beyond reasonable doubt that accused applied pressure to complainant’s neck – guilty of statutory alternative

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – Sentence – serious offence but offending at low end of objective seriousness –submissions made for non-conviction order – importance of general deterrence in context of family violence offending – convicted and sentenced to four months’ good behaviour

The Supreme Court has sentenced an offender to four months’ good behaviour after finding him guilty of unlawfully choking his partner during an argument between the couple where the complainant was shouting and had thrown watermelon on the floor.

The complainant, an international student, reported the incident to police immediately after it occurred, but later tried to “cancel” the charge, claiming that police had misunderstood what she had told them. Despite her attempts to cancel the charge, the complainant maintained that the offender had placed his hand on her neck, which the court considered reinforced the credibility of her complaint.

Marhaba v Chen [2024] ACTSC 241

NEGLIGENCE – CAUSATION – DAMAGES – Motor vehicle accident – breach of duty admitted – extent of injury suffered –extent to which disabilities attributable to accident – where pre-existing back injury – where later spinal degeneration – whether plaintiff continued to experience physical and psychological sequelae from the accident – where credit of plaintiff in issue – extent of domestic assistance required – damages awarded in reduced amount to take account of pre-existing injury and degenerative condition

The Supreme Court has awarded damages for a plaintiff who was involved in a motor vehicle accident in 2016.  A breach of duty of care was admitted by the defendants, being the owner of the car at fault and the insurer. The plaintiff had pre-existing back injuries and psychological vulnerabilities.  Medical evidence further revealed spinal degeneration.  At issue was whether the plaintiff had suffered any compensable injury attributable to the accident and if so, to what extent.

The Court found that the accident caused a soft tissue injury to the plaintiff’s neck, and aggravated the plaintiff’s pre-existing back injury, but that the symptoms referable to the accident had now been overtaken by the plaintiff’s spinal degeneration.

Further, the plaintiff had developed a somatic symptom disorder which was partially attributable to the accident, but due to the plaintiff’s pre-existing injuries and degenerative condition, there was a possibility that this disability would have developed independently of the accident.

Judgment was entered for the plaintiff against the first and second defendants in the sum of $155,524 plus costs.

Couper v City of Casey [2024] ACTSC 218

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tort committed in another jurisdiction – conflicting procedure – substantive law of that jurisdiction will apply – complex procedural steps held to be substantive law – Civil Wrongs Act 1958 (VIC) – Court Procedure Rules 2006 (ACT)

DPP v Umunakwe [2024] ACTSC 229

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for directed verdict – where evidence in respect of count alleging anal intercourse not strong – some evidence of anal sexual intercourse - high threshold for directed verdict not met – application refused.

MM v Australian Capital Territory (No 3) [2024] ACTSC 238

CIVIL PRACTICE AND PROCEDURE – Disclosure of protected confidences – Whether material in question is necessary for a fair trial – psychological damages only sought – treatment of psychological condition relevant

The Supreme Court has granted access to the defendant in a civil proceeding to subpoenaed materials identified as protected confidences pursuant to part 4.4 (division 4.4.3) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). Following an inspection of the subpoena material by the Court, the plaintiff was granted access to view those documents identified as containing protected confidences. The plaintiff then submitted that the material should not be disclosed to the defendant for the purposes of the proceedings. The Court found that the defendant should have access to the material, as it was unable to see how a fair trial could be conducted without their disclosure. The Court did however place conditions on the use of the materials, in order to ameliorate the genuine concerns of the plaintiff in relation disclosure of the protected confidences.

In the Estate of Gaie Frances Ross [2024] ACTSC 239

WILLS, PROBATE & ADMINISTRATION – INFORMALITY - Identical wills made by husband and wife – each testator mistakenly signs other testator’s will – single witness – application of s 11A of Wills Act 1968

In the matter of an application by Joshua Ceramidas [2024] ACTSC 214

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Application for urgent interlocutory injunction where Commission intends to receive submissions from Counsel Assisting in public – where statute does not specifically refer to submissions – whether implicit in the statute is power to order submissions to be heard in public – whether plaintiff has established a serious question to be tried – balance of convenience – where majority of evidence heard by Commission was heard in public

The Supreme Court has rejected an application seeking to prevent the ACT Integrity Commission from conducting oral submissions publicly in the Operation Kingfisher investigation. The injunction was sought on the basis that the Commissioner did not have power under the Integrity Commission Act 2018 (ACT) to direct that the closing submissions be conducted in public. The Court disagreed, found no serious question to be tried, and rejected the submission that the balance of convenience favoured the applicant. In the alternative, the applicant argued that the Commissioner’s decision to hold the submissions in public had been infected by apprehended bias. This argument was rejected by the Court, who held that a lay observer would not find an inappropriate connection between the Commissioner’s earlier statements of intention and its final decision of 6 July 2024 to hold the submissions in public.

Svilicich v Richmond Fellowship ACT Incorporated [2024] ACTSC 224

CIVIL LAW – PRACTICE AND PROCEDURE – COSTS – application by the Second Defendant seeking leave nunc pro tunc for the issue of NNPPs – parties agreed leave should be granted pursuant to s 79D(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) for the issuing of subpoenas – counselling and psychological records expressly sought after in the NNPPs – leave required – the Second Defendant is to pay the Plaintiff’s costs of the applications.

Gibson (a pseudonym) v Askim Pty Ltd ATF the Askim Trust trading as Central Café Group [2024] ACTSC 203

CIVIL LAW – NEGLIGENCE – personal injury – plaintiff contracted salmonella poisoning while working as a kitchen hand at the defendant’s café – whether plaintiff demonstrated on the balance of probabilities that she contracted salmonella poisoning from the café – coincidence reasoning - other patrons of the café also contracted same strand of salmonella bacteria - café was found to have committed numerous breaches of the Food Act 2001 (ACT) – whether the risk of the plaintiff contracting salmonella poisoning was foreseeable and not insignificant – whether defendant breached duty of care - defendant failed to provide soap to its employees and failed to properly refrigerate raw meat and chicken – whether the negligent conduct of the defendant was a necessary condition of the harm caused – liability established – damages awarded

The Supreme Court found the defendant was liable in negligence for the plaintiff contracting salmonella poisoning while working as a kitchen hand at the defendant’s café.  Five other patrons who ate at the café also contracted the same strand of salmonella bacteria. The Court found the defendant breached its duty of care by failing to provide soap to its employees and by not properly refrigerating raw meat, and that these breaches were a necessary condition of the harm caused. Damages in the sum of $65,573 were awarded to the plaintiff.

DPP v Saulo [2024] ACTSC 193 (SCC 4 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – reckless infliction of grievous bodily harm – continuation of an altercation at a nightclub – single punch – youthful offender –early guilty plea – where victim suffered life-altering injuries – where offender was serving an intensive correction order for a similar assault at the time of the offence.

The Supreme Court has sentenced a 21-year-old offender to imprisonment for a term of 6 years for an offence of recklessly inflicting grievous bodily harm during a night out in Canberra city.  The assault was a single unprovoked punch to the head rendering the victim unconscious and causing life-altering injuries.  The offender was serving an intensive correction order for offences of assault occasioning actual bodily harm at the time of the offence.

The Court gave considerable weight to the purposes of protection, denunciation and recognition of the harm suffered by the victim and his family. In recognition of the offender’s young age and interest of rehabilitation, the Court fixed a non-parole period of 3 years.

The Court held that an intensive correction order would not reflect the seriousness of the offence and the significance of the victim’s injuries.

The offender was also ordered to pay $7,311.25 for the victim’s medical expenses.

Kershaw v Wales [2024] ACTSC 228

CRIMINAL LAW – EVIDENCE – Family violence order – whether document recording hearsay evidence in court order sufficient to prove presence of the appellant when order made – Family Violence Act 2016 (ACT), pt 3

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Recognition of equivalent violence orders made interstate – where interstate legislative scheme provides for proof of notification of order and process not followed - Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 98ZT; Family Violence Act 2016 (ACT), pt 9

The Supreme Court has allowed an appeal from the Magistrates Court. The defendant was convicted of two counts of contravening a family violence order made when he was a resident of NSW. The defendant appealed on the basis that there was insufficient proof that he was present when the order was made. This claim was upheld, and was supported by law enforcement not having followed a proof of notification process within family violence legislation for the recognition of orders made interstate.

Deputy Commissioner of Taxation v Aguer [2024] ACTSC 236

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Claim for various taxation monies – Income Tax Assessment Act 1997 (Cth) s 167 – Taxation Administration Act 1953 (Cth) pt IVC – income tax assessments not lodged – administrative penalties – penalisation of the defendant for failing to lodge income tax returns – judgment

The Supreme Court has ordered a defendant to pay the Deputy Commissioner for Taxation (Deputy Commissioner) $546,985.46, comprising amounts from income tax assessments made by the Deputy Commissioner for the 2014/2015, 2015/2016, and 2016/2017 financial years, FTL Penalty amounts, administrative penalties, and interest. While the Court held that the defendant had no legal or factual means to resist judgment against him, it considered that the defendant may have some future recourse in relation to the matter, resulting in the Court delaying entry of judgment for three weeks to allow the defendant time to commence any process available to him.

DPP v Gorman [2024] ACTSC 233

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender escaped from lawful custody – effect of escape on commencement and end date of offender’s sentence – proper construction of s 30 of the Crimes (Sentence Administration) Act (2005) – s 30 is a self-executing provision – the applicant’s release date for the sentence imposed is extended by a period equal to that which he was unlawfully absent from custody – whether declaratory relief should issue – declaration issued.

The Supreme Court has issued a declaration that the sentence of an offender who absconded from custody is extended by the period he was unlawfully absent from custody. The offender escaped after he was sentenced for offences in the ACT. Subsequently, the offender was extradited to the ACT and returned to custody. The parties agreed the Court should issue a declaration that the offender’s sentence is extended by the period he was absent from custody.

DPP v Timosevski [2024] ACTSC 205 (SCC 238 of 2023, SCC 239 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – act of indecency with a person under 16 years – sexual intercourse with a person under 16 years – offender’s remorse – where good prospects of offender rehabilitation – degree of concurrency applied – 20 percent discount for guilty plea – prison sentence imposed

The Supreme Court has sentenced an offender to overall sentence of imprisonment of 2 years, 8 months, and 24 days, commencing on 21 November 2023 and expiring on 13 August 2026, for one offence of an act of indecency with a person under 16 years and three offences of sexual intercourse with a person under 16 years. In sentencing the offender, the Court considered his remorse and prospects for rehabilitation. The Court set a non-parole period of 19 months and 14 days.

Islam v Director-General, Justice and Community Safety Directorate [2024] ACTCA 22

APPEAL – HUMAN RIGHTS – prison discipline procedures – right to humane treatment while deprived of liberty – right to protection from cruel, inhuman or degrading treatment and punishment – where disciplinary charge form not signed by detainee – where corrections officer proceeded as if charge was admitted in contravention of Corrections Management Act 2007 (ACT) – whether form was unclear – whether promulgation of form breaches human rights – whether consequential imposition of punishment was in breach of human rights – appeal dismissed

The Court of Appeal has upheld a decision of the Supreme Court, which determined that disciplinary action imposed on the appellant while he was incarcerated did not breach the Human Rights Act. The Appellant argued his refusal to sign the Discipline Form, and the fact it did not clearly indicate an option to appeal, meant the disciplinary action imposed was inhumane. The Appeal Court determined that the form was poorly formatted, however it did not breach the appellant’s human rights.

Kennedy v Qantas Ground Services Pty Ltd (No 2) [2024] ACTSC 232

PRACTICE AND PROCEDURE – PLEADINGS – Plaintiff is self represented litigant – case with long procedural history – no defence yet filed – whether proposed amendments to proceedings should be allowed – no issue of principle

The Supreme Court has ruled on an application in proceeding regarding amendments to be made to a statement of claim. The plaintiff, now a self‑represented litigant, was seeking to add an additional 92 pages worth of material to the statement of claim which was previously filed by his former lawyers. The matter has been on foot since 2019 but has not progressed beyond the originating process stage. The court undertook a paragraph-by-paragraph assessment of the plaintiff’s proposed amendments, allowing some while disallowing others.

DPP v Hudson [2024] ACTSC 159 (SCC 12 of 2024, SCC 13 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order Assessment – contravention of family violence order – theft – common assault – use carriage service to menace/ harass – references to Bugmy Bar Book – rehabilitation – Drug and Alcohol Treatment Order imposed.

The Supreme Court sentenced an offender for contravening a family violence order, common assault, theft, possession of a knife and ammunition, and using carriage service to menace/ harass. The offender committed the offences of contravening a family violence order, theft, common assault and possession of a knife and ammunition in 2022 by first taking the victim’s mobile without consent, and then attempting to use the mobile’s facial recognition feature to open the phone. During subsequent interactions where the victim attempted to retrieve her phone, the offender elbowed the victim in the chest. The police located the victim’s mobile, a number of ammunition rounds and a knife when searching the offender and his property. The offender then committed the offence of using carriage service to menace/ harass on another victim by sending text messages of degrading and threatening nature, causing the victim to fear for her safety and the safety of her family.

The Court considered the lengthy criminal history of the offender and his efforts towards rehabilitation, as well as the application of Bugmy principles in relation to the offender’s childhood disadvantage. The Court further considered the offender’s dependency on and abuse of prescription medication during the course of his offending, and the contribution of his dependency to the offences to be sentenced. The Court imposed a total of 1 year 5 months 5 days imprisonment, with the offence of using carriage service to menace/harass served by the time of imposition. The Court then ordered that a Drug and Alcohol Treatment Order to be imposed for the remainder of the offender’s sentence of 1 year 2 months, with specific conditions related to addressing the offender’s family violence behaviour set out in the conditions of the Treatment Order.

Ryan v Cheqrouni (No 2) [2024] ACTSC 230

CONTRACTS – DAMAGES – Implied terms – term of standard of work – claim for rectification and destroyed goods – claim for personal injury (mental distress) arising from breach of contract – whether damages for distress recoverable – assessment of losses caused by breach of contract – replacement value based on new or used value – pragmatic approach to assessment

(1) Judgment for the plaintiffs against the defendant in the sum of $237,876.09.

(2)  The defendant is to pay the disbursements incurred by the plaintiffs in bringing and pursuing the proceedings.

In the matter of an application by Leanne Cover [2024] ACTSC 197

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – application for urgent interlocutory injunction to restrain publication of a special report prepared by the Integrity Commission – where Commission required by statute upon completion of a special report to give it to the Speaker of the Legislative Assembly – where statute specifies requirement to afford procedural fairness in respect of a special report before it is given to the Speaker – whether statute codifies the Commission’s obligation to afford procedural fairness – whether plaintiff has established a serious question to be tried as to alleged denial of procedural fairness – consideration of balance of convenience in the case of an application to restrain the performance of a statutory duty

The plaintiff’s application for the interlocutory relief sought in paragraph 7 of the application in proceeding dated 18 June 2024 is dismissed.

DPP v Mack [2024] ACTSC 227 (SCC 58 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Sexual intercourse without consent – Threat to distribute intimate image – Where the offender was reckless as to whether the victim was consenting – Weight to be given to sentencing purposes

Offender sentenced to a term of imprisonment of 3 years (NPP 2 years) for two counts of sexual intercourse without consent and one count of threatening to distribute intimate images.

DPP v Wyatt [2024] ACTSC 142 (SCC 23 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – nature of the offence and aggravating factors – subjective circumstances – Bugmy principles – rehabilitation efforts while in custody – mental health – Verdins principle – available community supports – Drug and Alcohol Treatment Order imposed

The Supreme Court sentenced an offender for aggravated robbery committed in an Australian Post store in 2023. The Court considered the nature of the offence and the aggravating factors including possession of a knife during offending, as well as the subjective circumstances and insight expressed by the offender on sentencing. The Court further noted the considerations in Verdins in relation to the mental health of the offender and the now available community supports for the offender’s rehabilitation. The Court sentenced the offender to 2 years imprisonment back dated to his arrest and suspended the remainder of the sentence imposed to be served through a Drug and Alcohol Treatment Order. The Court further recommended the offender to be referred to restorative justice at a time considered appropriate by the director-general (corrections) during the term of the offender’s Drug and Alcohol Treatment Order.

Rutzou v Campbell [2024] ACTSC 217

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by the Magistrates Court – alleged manifest excess and specific error – condition imposed in good behaviour order prohibiting the appellant from driving except for limited purposes – prosecutor conceded the condition was an order made contrary to law – scope of s 13(4)(g) Crimes (Sentencing) Act 2005 (ACT) considered – concession not accepted - condition made by the Magistrate not contrary to law or manifestly excessive – appeal dismissed.

The Supreme Court has dismissed an appeal by an offender against a two-year good behaviour order (GBO), without conviction, that was imposed by the Magistrates Court for a charge of driving with a prescribed concentration of alcohol in breath. The GBO included a condition prohibiting the offender from driving except for limited purposes. The Court held that a condition prohibiting an offender from driving other than for limited purposes may be validly imposed on a good behaviour order. The Court also held that the sentence imposed was not manifestly excessive.

Elliot v Elly Property Wright Residential Pty Ltd [2024] ACTSC 192

REAL PROPERTY – CAVEATS – Application to extend caveat – multi-unit residential development – caveat lodged by purchaser of unit intended to be created following unit titling – caveat lodged prior to registration of units plan – “no caveat” clause in contract – whether caveat should be extended – equitable interest established in land – existence of equitable interest not dependent upon threat of breach of contract – registered proprietor indicates intention to comply with sale contract – evidence indicates some uncertainty as to conduct and management of the registered proprietor –  purchaser willing to cooperate to allow refinancing and unit titling to proceed – caveat extended

The Supreme Court has extended a caveat lodged by the purchaser of a unit in a development located in Wright. The court found that the purchaser has established an equitable interest in the land, and that the interest was not dependent upon any threat of breach of contract. The contract for sale of the unit contained a no caveat clause. The court determined that the existence of a no caveat clause did not preclude the extension of the caveat. In circumstances where the purchaser indicated a willingness to cooperate to allow refinancing and unit titling to proceed, the balance of convenience favoured the extension of the caveat.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 5) [2024] ACTSC 194

PRACTICE AND PROCEDURE – APPEARANCE – Claim against Commissioner of Taxation – director refused leave to represent corporate plaintiff – plaintiff not appearing by solicitor at final hearing – proceedings dismissed pursuant to r 1505 of the Court Procedures Rules 2006 (ACT)

JURISDICTION, PRACTICE AND PROCEDURE – JURISDICTION – Claim against Commissioner of Taxation for orders against an officer of the Commonwealth – submission by defendant that court lacked jurisdiction to determine application – submissions inadequate – plaintiff not appearing – not essential to determine jurisdiction in circumstances where proceedings would be dismissed in any event

The Supreme Court has dismissed proceedings brought against the Commissioner of Taxation by a corporate entity, Bennelong Medical Pty Ltd. The plaintiff company had remained unrepresented throughout the course of the proceedings, which were commenced in January 2023, after the director was refused leave to represent the company. Despite a substantial interlocutory history in which the director was repeatedly refused leave to act for the company instead of engaging a solicitor, the plaintiff company remained unrepresented at the final hearing. The plaintiff was deemed to have not appeared at the final hearing, and the claim was dismissed.

DPP v O’Keefe [2024] ACTSC 210 (SCC 309 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two counts of trafficking in a commercial quantity of a commercial drug – cocaine and methylamphetamine – offender played an important but not essential role in the organised crime operation – the trafficked amount was not significantly above the prescribed commercial quantity – offending financially motivated due to a drug debt incurred by the offender during a period of significant addiction to cocaine – where offender has made significant progress and demonstrates excellent prospects of rehabilitation – displayed genuine remorse

The Supreme Court has sentenced an offender to 3 years and 3 months for trafficking in a commercial quantity of cocaine and 4 years and 2 months for trafficking in a commercial quantity of methylamphetamine. The offender had remained abstinent from drug use since being charged, had excellent prospects of rehabilitation and had displayed genuine remorse.

Wu v Wu [2024] ACTCA 8

APPEAL – EQUITY – Undue influence – unconscionable conduct – laches – gift of family home to daughter – whether error in assessment of relationship of ascendancy – whether error in analysis of special disadvantage – whether error in principles concerning delay in seeking relief

The Court of Appeal has found error in respect of a judgment at first instance dismissing claims in equity alleging undue influence and unconscionable conduct. The appeal involved the transfer of the appellant’s family home to one of his daughters, in circumstances that the appellant alleged were unconscionable or involved undue influence.

The circumstances alleged included that the house was the appellant’s only significant asset, that he was elderly, did not understand English, did not have independent legal advice, and depended upon his wife for managing his assets and finances on his behalf. Further, the respondent daughter knew or ought to have known of those circumstances at the time she received the benefit.

Relevant to the appeal, the primary judge rejected each of the claims in equity and further held that the defence of laches would have applied.

The Court of Appeal found:

(a)          That in the case of undue influence, a presumption of undue influence was alleged arising from an antecedent relationship of dependency of the appellant on his wife in respect of all financial matters. The primary judge had assessed the wrong relationship of ascendancy, because the relationship analysed was that of the daughter over the father.

(b)          In her findings concerning unconscionable conduct, the primary judge had erred in the consideration of whether the appellant suffered a special disadvantage.

(c)           In respect of whether the equitable defence of laches applied, error in the application of the principle concerning delay was established.

Further orders were required to determine whether the matter should be remitted or determined by the Court of Appeal.

Fuller v Australian Capital Territory [2024] ACTCA 19

APPEAL – NEGLIGENCE – Medical Negligence – Appeal from the Supreme Court – anaesthetist – where a spinal needle used to administer spinal anaesthetic in a planned caesarean section broke – whether the primary judge erred in relying on a witness’ evidence to make certain factual findings – whether the spinal needle should have been replaced before further attempts – whether the primary judge erroneously applied s 5O of the Civil Liability Act 2002 (NSW) – whether the failed administration of the anaesthetic caused the appellant’s injuries – assessment of the primary judge’s factual findings – consideration of the primary judge’s use of the expert evidence – appeal allowed – matter remitted to the Supreme Court for assessment of damages

The Court of Appeal has allowed an appeal against a Supreme Court decision concerning a claim for negligence arising out of an unsuccessful administration of spinal anaesthetic. The primary judge’s reasoning in support of the factual findings did not demonstrate error, but this did not negate the success of the appeal. Failure to use a fresh spinal needle following an initial unsuccessful attempt to administer anaesthetic breached the standard of care owed to the appellant. The failed anaesthetic caused the appellant’s radiculopathy. The proceedings were remitted to the Supreme Court for damages to be assessed on that basis.

DPP v Cichacz [2024] ACTSC 209 (SCC 315 of 2023; SCC 316 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possessing a declared substance – possess/sale/supply a drug of dependence – breach of suspended sentences and good behaviour orders – illicit substance abuse – difficulty attending supervision appointments due to vision impairment – PTSD from prior relationships of domestic violence – Verdins considerations  – prospects of rehabilitation – no action taken on breach of good behaviour orders – sentences of imprisonment suspended upon entry into good behaviour orders.

Offender sentenced for possess/sale/supply of a drug of dependence and possession of a declared substance – resentence for earlier breach of suspended sentences – offender had difficulty attending supervision appointments due to vision impairment – PTSD arising from prior relationships of domestic violence – sentences of imprisonment suspended upon entry into good behaviour orders.

Decision Restricted [2024] ACTSC 213

EVIDENCE LAW – TENDENCY EVIDENCE – Criminal proceedings – alleged tendency of accused to have a sexual interest in the complainant (a child) and to act upon that interest – single complainant – where prosecution relied on “otherwise benign” acts to support charge of grooming – whether benign acts capable of proving tendency to have sexual interest in the complainant – consideration of nature of tendency reasoning – consideration of appropriate form of rulings to be sought in tendency applications

In the estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211

CIVIL LAW – application for a video made by the deceased to constitute a valid last will – s 11A of the Wills Act 1968 (ACT) – application for a grant of letters of administration to be issued to the applicant as administrator – s 9 of the Administration and Probate Act 1929 (ACT) – application consented to by each of the possible beneficiaries of the Estate - a grant of letters of administration is to be issued to the applicant as administrator.

The Supreme Court has granted an application under s 11A of the Wills Act 1968 (ACT) that a video made by the deceased constitute a valid last will. The video was made by the deceased shortly prior to undergoing surgery in Peru from which she never recovered.

South Canberra Holdings Pty Ltd v Saunders [2024] ACTSC 212

APPEAL – parties filed consent orders that leave to appeal against the ACAT decision be granted and that the ACAT decision be set aside – substantive dispute settled – proceedings moot – leave to appeal refused.

R v Celeski (No 3); DPP v Celeski [2024] ACTSC 144 (SCC 78, 79, 80, 81, 174, 175 of 2022; SCC 81, 82 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order – reoffending – treatment and supervision continued while on bail – bail revoked after discharge from residential facility – s 80ZD imposition or resentence – 80ZH review – s 36 assistance to law enforcement authorities – sentence of imprisonment under the custodial part imposed – rehabilitation through a parole order

The Supreme Court has sentenced an offender for various property, firearms, and drug related offences following the cancellation of the offender’s Drug and Alcohol Treatment Order in January 2024. In light of the seriousness of the offending and high degree of non-compliance, the Court considered it appropriate to impose the sentence that was previously suspended in addition to the sentence for fresh offending.

In considering the objective seriousness of the offending, the Court noted that the offending demonstrated an ongoing engagement in the drug trade in association with firearms and weapons offences. The Court considered that the offender’s severe substance dependency corresponded with the nature and seriousness of the offending. The Court further considered assistance provided by the offender to authorities. Ultimately, the Court was of the view that the offender was of prospects for rehabilitation through parole and a sentence was imposed of 5 years and 6 months imprisonment, with a nonparole period of 2 years and 9 months.

In the Estate of Mary Ellen Robbie [2024] ACTSC 208

WILLS, PROBATE & ADMINISTRATION – INFORMALITY – Wills Act 1968 (ACT) s 11A – Purported will – standard form will – anomalies in entries to the will – reasonable explanation for anomalies – accords with deceased’s testamentary intentions.

DPP v Stewart (No 2) [2024] ACTSC 163 (SCC 28 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – forgery – Drug and Alcohol Treatment Order cancelled – discharge from residential rehabilitation facility – s 80ZE imposition or resentence – extent of non-compliance – imposition of balance of the term of imprisonment – rehabilitation through parole

The Supreme Court has sentenced an offender for forgery offences following the cancellation of the offender’s Drug and Alcohol Treatment Order. The offender was found to have demonstrated limited compliance during the limited time while the offender was on the treatment and supervision part of the Treatment Order. However, the offender participated in rehabilitation programs while in custody and the Court imposed the balance of the custodial part of the Treatment Order, with the term of imprisonment ending on 21 October 2025. The Court further considered the rehabilitative efforts of the offender and risk to the community based on the offender’s criminal history and the nature of the offending, and imposed a nonparole period ending on 21 July 2024. The Court made recommendations for the offender to undertake a substantial period of supervised or mandated drug rehabilitation program if available to him on parole.

Heaven Builders Pty Ltd & Ors v Moustafa & Anor [2024] ACTSC 201

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Ex Parte Application – Freezing order – whether evidence establishes a good, arguable case – whether there is a real risk of defendants dissipating assets – whether the balance of convenience favours making the orders – whether balance of convenience favours granting the freezing order

The Supreme Court has granted a freezing order directing the defendant to pay the proceeds of the sale of a property to the Court. The plaintiffs had previously been granted a caveat by the Court over the property, however ACT Land Title records showed that the sale of the property has since settled. The plaintiffs and defendants are engaged in ongoing proceedings before the Magistrates Court.

DPP v Singh [2024] ACTSC 202 (SCC 17 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – delivery driver involved in scheme to receive fraudulent consignments of mobile phones – no criminal antecedents – where childhood disadvantage present – where time in custody already served – rehabilitation prioritised – intensive correction order with community service condition imposed

The Supreme Court has sentenced an offender to a term of imprisonment of almost 2 years in relation to four counts of obtaining property by deception.

The offender was a contracted delivery driver for Australia Post as part of its Star Track network.  The scheme involved addresses of customers being manipulated online and then iPhones being ordered, to be sent to the false address.  The offender’s role in the scheme involved purporting to deliver the iPhones but withholding them from delivery and instead providing them to an unidentified person who would then pay him cash.  The value of the iPhones diverted from delivery was $136,933.00. The offender received a few thousand dollars for his role in the scheme.

The offender had made full admissions following his arrest, pleaded guilty to all four charges, and assisted police with their further investigations.  He had previously been held in custody for 7 days and had experienced social disadvantage, each of which was taken into account in ordering the sentence to be served by way of an intensive correction order with a condition attached of 100 hrs of community service.

DPP v Smith (No 3) [2024] ACTSC 146 (SCC 182 of 2024; SCC 183 of 2024)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order cancelled – review under s 80ZH of the Crimes (Sentencing) Act 2005 (ACT) – unsatisfactory circumstances – imposition or resentence under s 80ZE of the Crimes (Sentencing) Act 2005 (ACT) – where compliance with the Drug and Alcohol Treatment Order was limited – Bugmy considerations – Verdins principles – resentence – rehabilitation through parole order

The Supreme Court has sentenced an offender for aggravated robbery, theft, aggravated assault occasioning actual bodily harm, and aggravated property damage following the cancellation of the offender’s Drug and Alcohol Treatment Order in 2023. In light of the offender struggling with complex mental health conditions at the time of the non-compliance, the Court considered it appropriate to resentence the offender.

In considering the objective seriousness of the offending, the Court noted that the theft occurred in the victim’s home and significant items of property were taken, and the assault occurred in the victim’s home and would have been particularly frightening. The Court considered that the offender’s moral culpability was reduced as a result of his childhood of extreme disadvantage, the early age at which he was introduced to drugs, and the links between his traumatic childhood experiences, addiction and mental health conditions. Ultimately, the Court was of the view that the offender had hope for rehabilitation. Taking into account the 8 months that the offender had already served in custody in relation to the offences, the Court resentenced the offender to 23 months imprisonment, with the non-parole period being 40 per cent of the total sentence.

In the matter of an application [2024] ACTSC 197

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – application for urgent interlocutory injunction to restrain publication of a special report prepared by the Integrity Commission – where Commission required by statute upon completion of a special report to give it to the Speaker of the Legislative Assembly – where statute specifies requirement to afford procedural fairness in respect of a special report before it is given to the Speaker – whether statute codifies the Commission’s obligation to afford procedural fairness – whether plaintiff has established a serious question to be tried as to alleged denial of procedural fairness – consideration of balance of convenience in the case of an application to restrain the performance of a statutory duty

The Supreme Court has refused an interlocutory application that sought to restrain publication of a special report prepared by the ACT Integrity Commission. The plaintiff alleged the report entailed a denial of procedural fairness and contained errors of law.

The Court found that the plaintiff had not shown a sufficient likelihood of success to warrant granting the relief sought. The Court also found that, although publication of the report would likely damage the plaintiff’s reputation, it was not shown that the balance of convenience favoured preserving the status quo, noting the Commissioner has a statutory obligation upon completion of a special report to give it to the Speaker of the Legislative Assembly.  Accordingly, the application was dismissed.

Devenport v Garnon [2024] ACTSC 198

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether finding of guilt was unreasonable or could not have been supported having regard to the evidence – whether the Magistrate’s reasons were insufficient – whether the Liberato direction was misapplied – each ground not established – appeal dismissed – conviction confirmed

Uploaded

27 June 2024

DPP v D’Elboux [2024] ACTSC 122

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Drug and Alcohol Treatment Order – where the offender assessed as not eligible to progress to a drug and alcohol treatment assessment – s 80U – declines to make – s 80U remittal

Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16

CIVIL LAW – NEGLIGENCE – Personal injury – workers compensation – slip and fall at construction site – whether safe system of work provided and ensured – whether pre-existing undiagnosed spinal condition – whether breach of statutory duty – whether contributory negligence – damages awarded

The Supreme Court has found a subcontractor and an employer liable in negligence for injury suffered by a form worker on a building site.  The employee worker had slipped on a frosty deck on the site while carrying a plywood sheet.  The Court found that the employer owed a non-delegable duty of care, and that the subcontractor exercised sufficient control over the employer of the worker to give rise to a duty of care. The Court further found that such duties were breached by a failure to ensure that the surface where it directed the plaintiff to work was not slippery.  The worker was found to have a pre-existing asymptomatic degenerative spinal condition, rendered symptomatic as a result of the injury. The worker was no longer able to work in the construction industry and, as a recent migrant into Australia, had difficulty seeking alternative employment due to his lack of English proficiency.

Judgment was entered for the plaintiff against the first and second defendants in the sum of $243,900 plus costs.  The third defendant as default insurer was ordered to pay its own costs.

Breust v Anderson [2024] ACTSC 182

REAL PROPERTY – PARTITION – Sale in lieu of partition – property jointly owned by plaintiff and defendant from previous relationship – failure by defendant to remove plaintiff as joint owner – joint owner incurring rates and water charge liabilities – plaintiff unaware she was still a registered proprietor until receiving notice of legal proceedings brought by Icon Water – significant debts to Icon Water and ACT Revenue Office attached to property – failure by defendant to address issue – no appearance by defendant at any stage of proceedings – order for sale of property – appointment of independent trustee to undertake sale

The Supreme Court has ordered the appointment of an independent trustee to undertake the sale of a property in Holt. The plaintiff and defendant bought the house together in 1997 when they were in a de facto relationship. When the relationship ended in 1998, no steps were taken to formally remove the plaintiff from the title of the property. In the years since, the defendant allowed significant debts attached to the property to accrue.

The plaintiff became aware that she was still on the title to the property when she received a notice of legal proceedings for the debt. The plaintiff tried to contact the defendant to resolve the matter, but without any response. The plaintiff then brought proceedings to appoint a trustee to sell the property to repay the debts. Despite numerous attempts to engage the defendant in the proceedings, there was no appearance by the defendant at any stage.

The court has ordered the appointment of a third party as an independent trustee, which will not come into effect until early July with the intention to give the defendant a final opportunity to take urgent action to avoid the order for sale.

Cripps v Cripps [2024] ACTSC 180

SUCCESSION – FAMILY PROVISION AND MAINTENANCE – Application to summarily dismiss or permanently stay proceedings – contention that proceedings are vexatious or an abuse of process because legal fees will reduce residue of estate to point where plaintiff cannot do better than current entitlement – no express provision providing for limitation on costs recoverable – inevitability of plaintiff being unable to achieve better outcome than available under the will has not been established – application dismissed

The Supreme Court has dismissed the application of a defendant in family provision proceedings.

The defendant sought to have the plaintiff’s claim summarily dismissed on the grounds that it had no real prospects of success because the legal costs of defending the plaintiff’s claim, along with the plaintiff’s costs if his claim was successful, would reduce the amount of the estate available to the plaintiff so that he had very little chance of obtaining any more than what had already been left to him in the will.

In reaching its decision, the court considered that the inevitability that the plaintiff would not be able to achieve a better outcome than what was already available under the will had not been made out, especially if the parties are able to reach a settlement instead of proceeding to trial. The court also acknowledged the inability of the court to place a limitation on the costs recoverable in such proceedings and the “distorted incentive” that this created for plaintiffs.

Decision Restricted - [2024] ACTSC 196

Application to adduce prior evidence of family violence in respect of family violence and sexual violence offending – s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – consideration of relationship and context evidence – application granted.

DPP v Muell [2024] ACTSC 184 (SCC 296 of 2023; SCC 297 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – driving with a suspended license – where the offender had a particularly disadvantaged and traumatic upbringing – where the offender was on parole for other matters at time of offending – appropriate length of non-parole period in light of offender’s prospects of rehabilitation  – offender’s prospects of rehabilitation remain guarded – Bugmy, Verdins and Henry principles engaged – institutionalisation relevant – sentenced to term of imprisonment for aggravated robbery – non-parole period reset – fine with no time to pay imposed for driving with a suspended licence – automatic disqualification applies

The Supreme Court has sentenced an offender for aggravated robbery and a driving offence.

The offender had a difficult upbringing and was on parole at the time of the offending. The Court considered the offender’s prospects of rehabilitation to be guarded.

A sentence of 3 years and 6 months’ imprisonment was imposed for the aggravated robbery. A new non-parole period was set. The court imposed a fine for driving with a suspended license, with the offender automatically disqualified from holding or obtaining a driver’s licence.

Re referral under r 6142 (No 3) [2024] ACTSC 189

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – document appears to be application for review pursuant to s 67A(11) Supreme Court Act 1933 (ACT) – no leave of court required – where orders sought contain drafting defects – appropriate that document be filed and application listed before a judge – Registrar directed to accept document

The Supreme Court has directed the Registrar to accept a document lodged with the registry. The document appeared to be an application for review of a declaration that a person was a vexatious litigant. No leave of the court is required for such an application. The court determined that, notwithstanding drafting defects in the orders sought, it was appropriate that the document be filed and the application listed before a judge.

R v Guy (No 3) [2024] ACTSC 118 (SCC 273 of 2021; SCC 274 of 2021; SCC 301 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Good Behaviour Order after cancellation of Drug and Alcohol Treatment Order – breach of Good Behaviour Order – s 110 cancellation – imposition or resentence – aggravated dangerous driving – possession of a firearm – possession of stolen property – possession of drug of dependence – driving while disqualified – fines imposed – term of imprisonment suspended – Good Behaviour Order imposed

Richardson v Richardson (No 2) [2024] ACTSC 191

SUCCESSION – FAMILY PROVISION – Application by adult son for provision out of late mother’s estate – where long period of estrangement between plaintiff and deceased – consideration of the deceased’s testamentary freedom and reasons for bequeathing only small gift to plaintiff – consideration of testator’s moral duty – modest estate – where plaintiff in poor financial position and of poor health – held that community standards require further provision be made for plaintiff – order that provision be made out of property already distributed – order that plaintiff’s legal costs be capped

EVIDENCE – WITNESSES – Credibility and reliability – where very little contemporaneous material, objective facts, or wholly independent witnesses available – where corroborative witness shown affidavit of the person whose evidence they were intended to corroborate – infection of testimony by suggestion –utility of affidavit evidence compromised

The Supreme Court has ordered that further provision be made for an adult son out of his late mother’s estate. In deciding the application, the Court took into account the long period of estrangement between the applicant and his mother and her reasons for only leaving a small gift to him in her will. The Court was required to consider the testator’s moral duty to the plaintiff and the plaintiff’s poor financial situation and limited means of earning an income because of his declining health. Noting that estrangement does not disentitle a plaintiff from a successful claim, and in light of the applicant’s impecuniosity and physical limitations, the Court was satisfied that adequate provision for the proper maintenance, education or advancement in life of the plaintiff was not available under his late mother’s will. The Court ordered that the provision be made out of property already distributed to the testator’s grandson, who the Court inferred needed no provision from the estate and was significantly better off than the plaintiff.

The Court also expressed significant concern about costs incurred in family provision litigation, particularly in relation to small estates, and considered that the overall justice of the case required the plaintiff’s legal costs to be capped.

DPP v Basic [2024] ACTSC 186

EVIDENCE – ADMISSIBILITY AND RELEVANCY – Voir dire – objection to admission of police body worn camera footage – submission that non compliance with s 81A of Evidence (Miscellaneous Provisions) Act 1991 (ACT) should lead to exclusion under s 81B – s 81B does not provide for exclusion when recording not used as evidence in chief and otherwise admissible

EVIDENCE – ADMISSIBILITY AND RELEVANCY – Voir dire – objection to admission of police body worn camera footage – submission that footage not admissible under s 138 of Evidence Act 2011 (ACT) because of non-compliance with s 43B of Crimes (Surveillance Devices) Act 2010 (ACT) – examples to s 43B provide that use is overt if camera worn in a way that makes it visible to person being recorded – guidelines made under s 43C add further requirement that use be announced – evidence admitted notwithstanding contravention

STATUTES – INTERPRETATION – Examples in Act – where s 132 of Legislation Act 2001 (ACT) permits examples to extend meaning of Act – Example 1 in s 43B(4)(a) of Crimes (Surveillance Devices) Act 2010 (ACT) means that use of body worn camera will be overt if camera worn in a way that is visible to person being recorded –– body worn camera footage admissible

The Supreme Court has ruled to allow the admission of body‑worn camera footage in a criminal case involving family violence.

The footage captured the first interaction that police had with the complainant following the incident and was highly relevant to the case. The officer making the recording failed to announce that the body‑worn camera was recording, as required under the relevant guidelines. In ruling to admit the footage, the court found that the desirability of admitting the evidence outweighed the undesirability of admitting evidence that had not been obtained in accordance with the relevant provisions.

Legal practitioner v Law Society of the ACT [2024] ACTCA 17

Judgments summary

PROFESSIONS AND TRADES – LAWYERS – Complaints about a legal practitioner – referral of a special case to Supreme Court by the ACT Civil and Administrative Tribunal – appropriateness of referral - whether primary judge erred in answers to special case – where first complaint about legal practitioner’s conduct summarily dismissed – whether Law Society must dismiss any subsequent complaint about the same conduct – consideration of summary dismissal power in s 399 and legislative scheme in Ch 4 of the Legal Profession Act 2006 (ACT) – s 399 is a discretionary power to dismiss complaints – mandatory dismissal of subsequent complaints inconsistent with purpose of the legislative scheme – no error demonstrated – appeal dismissed

The Court of Appeal has dismissed an appeal from a decision of a single judge. The appeal arose out of a series of complaints about a legal practitioner. The Law Society filed an application for disciplinary action against the appellant in the ACT Civil and Administrative Tribunal in relation to one of the complaints. The ACAT referred a special case to the Supreme Court. The special case posed the questions of whether the Law Society had the power to refer a complaint to the ACAT where it had previously dismissed a complaint concerning the same conduct and whether the ACAT had jurisdiction to hear and determine the applications referred to it by the Law Society. The primary judge found that the answer to both of these questions was “Yes”.

An initial complaint about the legal practitioner’s conduct had been summarily dismissed by the Law Society. The Court of Appeal considered whether s 399 of the Legal Profession Act 2006 (ACT) had the effect that the Law Society must dismiss any subsequent complaint that is about the same conduct. Upon consideration of the summary dismissal power in s 399 and the legislative scheme underpinning that power in Ch 4 of the Act, the court determined that s 399 confers a discretionary power to dismiss subsequent complaints about the same conduct. Requiring mandatory dismissal of subsequent complaints about the same conduct is inconsistent with the purpose of the legislative scheme. As the appellant had failed to demonstrate error in the decision of the primary judge, the appeal was dismissed.

Harlovich v Sebbens [2024] ACTSC 153

Appeal from the Magistrates Court against sentence – drive while disqualified – residual discretion - matter heard subsequent to referral to full court – Galambany Circle Sentencing Court – whether the sentence was manifestly inadequate

The Supreme Court has dismissed a prosecution appeal against a sentence imposed in relation to a drive while disqualified offence, imposed in the Magistrates Court before the Galambany Circle Sentencing Court. The sole ground of appeal was manifest inadequacy.

Loukas-Karlsson J found that the sentence imposed was not manifestly inadequate on the facts of the case. Her Honour further found that, even if her Honour had determined the sentence was manifestly inadequate, this was a case where the onus on the prosecution had not been discharged in relation to the residual discretion.

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 4) [2024] ACTSC 190

PRACTICE AND PROCEDURE – Leave to represent a corporation to start and carry out proceeding – rule 30(4)(b) of the Court Procedure Rules 2006 (ACT) – self-represented litigant – sole director, secretary, and shareholder – previous application for leave refused – appeal to Supreme Court dismissed – appeal in Court of Appeal struck out – whether current application is an abuse of process – whether current application is precluded by Anshun estoppel – current application drafted in same terms as previous application – no material change in evidence – abuse of process found – application dismissed with costs

The Supreme Court has just dismissed an application from a self-represented litigant for leave to represent a corporation in starting and carrying on proceedings. The applicant had previously made an application for leave, and there has not been a material change in evidence since the previous application.

The application was dismissed as an abuse of process, with the applicant ordered to pay the defendant’s costs.

TN v Rossiter [2023] ACTSC 376

TRUSTS AND TRUSTEES – COMPENSATION TO RELATIVES CLAIM – Application for approval of a compromise of proceedings – where the beneficiaries are under a legal incapacity being children – application approved where the compromise is beneficial to the persons under the legal incapacity.

Ezekiel-Hart v Council for the Law Society of the ACT [2024] ACTCA 2

CIVIL LAW – VEXATIOUS LITIGANT – where vexatious litigant filed a notice of appeal without seeking leave to appeal – consideration of the requirement for leave to appeal – where appellant did not intend to appeal but instead to invoke the power of the trial court to vary or revoke the vexatious litigant declaration – whether appropriate to permit the notice of appeal to be amended and referred to the Supreme Court

R v Aguer (No 2) [2024] ACTSC 169

EVIDENCE – ADMISSIBILITY AND RELEVANCY – Hearsay – Crown application for ruling that hearsay rule does not apply –  written witness statements made in 2018 – witnesses either no longer able to be contacted or reluctant to give evidence at trial – whether witnesses are not available to give evidence for the purposes of s 65 of the Evidence Act 2011 (ACT) – Crown had not satisfied the requirement of “all reasonable steps” to find the witnesses or secure their attendance – hearsay rule applies to exclude witness statements

The Supreme Court has rejected a Crown prosecution application to adduce evidence in the form of prior written witness statements in circumstances where the Crown said those witnesses were not available to give evidence. The prior statements were made in 2018 but the witnesses had since relocated, and the Crown was subsequently unable to find the witnesses to serve them with the subpoenas to give evidence.

In reaching its decision, the court considered that the Crown had not taken “all reasonable steps” to locate the witnesses, and so could not rely on the exception to the hearsay rule to adduce the evidence.

Prime Capital Securities Pty Ltd v Fitch [2024] ACTSC 47

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for the extension of a caveat – where application brought late and ex parte – where debt claimed by the lender not proved by sworn evidence – absence of any explanation for the lateness of the application – discussion of the court’s expectations where such an application is brought late and ex parte

DPP v Monaghan [2024] ACTSC 183 (SCC 76 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – plea of guilty – not an objectively serious offence – disadvantaged and traumatic childhood – genuine remorse – good prospects of rehabilitation – considerations of parity – extensive criminal history – four year period without offending – backdated to account for time served in custody

The Supreme Court has sentenced an offender to 2 months of imprisonment for a count of theft by joint commission. The offending was committed in 2017, and the offender entered pleas of guilty in 2019 but absconded before the sentence date. The offending was not objectively serious, the offender had a disadvantaged childhood, and she showed remorse for the offending and motivation for reform. She is engaged in a support program and demonstrated good prospects of rehabilitation. The sentence of imprisonment was backdated due to time already served in custody and the offender had no remaining balance to serve.

DPP v Smith [2023] ACTSC 367

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – sex offences – application for bail refused – criminal history for similar offending – serious mental health concerns – where the conditions proposed could not mitigate the risk of further offending

In the estate of Venu Krishnamurthy [2024] ACTSC 73

WILLS, PROBATE & ADMINISTRATION - RECTIFICATION – Where letters of administration were granted – where later the deceased’s brother found the original will – where grant of the letters of administration is revoked

Agarwal v Coutts [2023] ACTSC 377

CRIMINAL LAW – BAIL – Application for bail pending appeal from the Magistrates Court – where the appellant’s conduct warranted a period of full-time imprisonment and where that component of the sentence would not be served prior to the determination of any appeal – where Corrective Services can adequately manage the appellant’s health needs

Bail  refused

Talbott v ACT [2024] ACTSC 166

PRACTICE AND PROCEDURE – PLEADINGS – Claim for declaratory relief of alleged breach of human rights – claim arises out of search of plaintiff by corrections officers at the Alexander Maconochie Centre – proceedings likely to involve dispute about facts – appropriate for factual issues to be defined by way of pleadings – appropriate to make order for proceedings to continue as if commenced by Originating Claim

PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – Application for temporary stay – claim for declaratory relief of alleged breach of human rights – claim arises out of search of plaintiff by corrections officers at the Alexander Maconochie Centre – where employees of the defendant the subject of criminal investigation – conduct the subject of criminal investigation identical to subject matter of civil proceedings – corrections officers entitled to exercise their right to silence – where making statements in civil proceedings would be prejudicial to officers’ position in criminal proceedings – balance of justice lies in favour of stay – temporary stay granted

The Supreme Court has granted a temporary stay of proceedings brought against the Australian Capital Territory. The plaintiff claims that corrections officers breached his human rights during a search at the Alexander Maconochie Centre. The conduct of the corrections officers in performing the search is currently the subject of a criminal investigation. The court determined that, in circumstances where the subject of the proceedings was identical to the subject of the criminal investigation and where the corrections officers were entitled to exercise their right to silence, forcing the officers to make statements for the civil proceedings would be prejudicial to their position in any criminal proceedings brought against them. The court held that the balance of justice lies in favour of a temporary stay.

In the Estate of Wendy Poole (deceased) [2024] ACTSC 168

SUCCESSION – EXECUTORS AND ADMINISTRATION – Administration – applications in proceeding brought by beneficiaries seeking payments out of estate and documents concerning estate administration – where estate attempting to recover funds loaned to third party – application withdrawn upon indication that estate would not seek costs order – no appearance from applicant for outstanding application – applications dismissed

The Supreme Court has dismissed a series of applications in proceeding seeking payments out of an estate and documents concerning the administration of the estate. The estate is attempting to recover funds loaned to a third party to pay to the beneficiaries. In those circumstances, the applicant indicated that he wished to withdraw the applications.

R v Po’oi (No 5) [2023] ACTSC 413

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail – sentence delayed – past compliance issues with Drug and Alcohol Treatment Order – completed rehabilitation programs while in custody - opportunity for Participant to demonstrate transition into community – bail granted under strict conditions

DPP v Allred [2023] ACTSC 184 (SCC 314 of 2022; SCC 315 of 2022; SCC 48 of 2023; SCC 49 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving at police – dishonestly driving motor vehicle – driving while disqualified – aggravated dangerous driving – recklessness in driving at police – rehabilitation – periods of abstinence and non-offending – subjective circumstances – Suitability Assessments – Drug and Alcohol Treatment Order imposed

R v Aguer [2023] ACTSC 48

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – Tendency and Coincidence evidence – application to adduce coincidence evidence granted – application to adduce tendency evidence to be considered by the trial judge

R v Rowlands (No 2); DPP v Rowlands [2024] ACTSC 143 (SCC 189 of 2022; SCC 190 of 2022; SCC 224 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – driving motor vehicle at police – aggravated dangerous driving – dishonestly ride in a motor vehicle without consent – Drug and Alcohol Treatment Order cancelled – treatment and supervision part suspended after re-offending – s 80ZH review – s 80ZE imposition or resentence – rehabilitation progress – resentence – non-linear addiction recovery – combination of rehabilitation measures – suspended sentence and good behaviour order

The Supreme Court sentenced an offender whose Drug and Alcohol Treatment Order was cancelled for noncompliance following failure to report to his sentence review and re-offending while on the Treatment Order. The offender then engaged in extensive rehabilitation efforts while in custody and following release from custody on bail. The Court considered the offender’s subjective circumstances, the progress made in rehabilitation and ongoing stabilising prosocial factors in the offender’s family unit. The Court noted that addiction recovery is non-linear and there is value in the combination of rehabilitation interventions engaged first with the Treatment Order and measures following the cancellation of the Treatment Order. The Court resentenced the offender to 2 years and 8 months imprisonment for the offences committed to the Treatment Order, and sentenced the offender to an additional 6 months imprisonment for the new offence, with the sentences suspended and in exchange for the offender to enter into good behaviour orders, with the total sentence ending on 10 January 2026.

DPP v Welsh (No 3) [2024] ACTSC 179 (SCC 340 of 2022; SCC 341 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – burglary – taking and driving motor vehicles without consent – offence committed in breach of conditional liberty – Griffiths remand previously imposed – offender was admitted into a full-time residential rehabilitation program – offender has engaged in significant rehabilitation since breach – overall sentence of imprisonment of one year and six months – total sentence of imprisonment wholly suspended upon entering a good behaviour order.

The Supreme Court has sentenced an offender for aggravated burglary, burglary, and taking and driving motor vehicles without consent. The Court previously adjourned proceedings to enable the offender to be admitted into a full-time residential rehabilitation program. The offender made remarkable steps towards rehabilitation after completing the residential program, including finding employment, ceasing his drug use and proactively engaging with support services.  The Court imposed a sentence of 18 months imprisonment, to be wholly suspended upon the entering of a good behaviour order.

DPP v Howe [2024] ACTSC 178 (SCC 89 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated common assault – common assault – property damage – family violence offences – lack of genuine remorse – high degree of responsibility for the offending – good prospects of rehabilitation – low risk of re-offending – no criminal history – sentence of imprisonment immediately suspended upon entering a good behaviour order – community service work condition imposed

The Supreme Court has sentenced an offender to 7 months imprisonment suspended immediately upon entering into a good behaviour order (GBO), for one count of aggravated common assault, a GBO of 1 year for a common assault, a 6 month GBO for a common assault and an $1800 fine for one count of property damage. The offences involved family violence against the offender’s wife at the time. The victim was pregnant at the time and their oldest child witnessed the offending. The offender had a lack of genuine remorse but otherwise good prospects of rehabilitation and no criminal history.

DPP v Nurzynski [2024] ACTSC 176 (SCC 278 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manufacture and discharge firearm offences – breach of good behaviour order – early guilty plea and assistance given to police – where long standing drug and alcohol problem – where suitable for drug and alcohol treatment order – term of imprisonment ordered, suspended upon treatment order being made.

The Supreme Court has sentenced a 60-year-old offender to a term of imprisonment of 2 years, 3 months and 12 days in relation to offences of manufacturing a prohibited firearm and discharging a loaded firearm, as well as imposing a sentence previously suspended for breaches of a personal protection order.

The Court found that although the offences were serious, the instances of both offences fell within the lower end of conduct falling within each offence. The offender had mental health considerations and had suffered a long-standing drug and alcohol problem which had developed in his youth. As the offender had already served more than 9 months in custody, the Court ordered that the remainder of the sentence of imprisonment be served by way of a drug and alcohol treatment order followed by a short good behaviour order.

Re referral under r 6142 (No 2) [2024] ACTSC 167

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – party attempting to file document has been declared a vexatious litigant – no leave of the court to commence or continue proceedings – no power under r 6142 to direct that document be accepted in part – at least one of the orders sought is an abuse of process – Registrar directed to reject document

The Supreme Court has directed the Registrar to reject a document lodged with the registry. The party attempting to file the document had been declared a vexatious litigant and did not have the court’s leave to commence or continue proceedings. At least one of the orders sought is an abuse of process. In circumstances where the court does not have power to direct that the document be accepted in part, the court directed that the document be rejected.

DPP v Rowntree (a pseudonym) [2024] ACTSC 155 (SCC 3 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – murder – case of mistaken identity – offender intended to commit home invasion but went to the wrong unit – offender only 17 and a half years old at the time of the offence – consideration of offender’s personality structure, antisocial attitudes, underlying mental health conditions and adverse consequences of being detained – offender sentenced to 13 years’ imprisonment to be suspended after seven years and nine months.

The Supreme Court has published the reasons for sentence of the offender charged with the murder of a man in a case of mistaken identity. The offender was intending to commit a home invasion but went to the wrong unit by mistake and killed the occupant without knowing who he was. The offender, who was 17 at the time of the murder, pleaded guilty and was sentenced to 13 years’ imprisonment to be suspended after seven years and nine months. In imposing the sentence, the court took into account the offender’s age, mental health conditions, background and upbringing, and prospects for rehabilitation.

Roberts v Wright [2024] ACTSC 154

CRIMINAL LAW – APPEAL AGAINST SENTENCE – Appeal from ACT Magistrates Court – attempt to escape Alexander Maconochie Centre by rappelling out of cell window using bed sheets tied together – aggregate sentence of 12 months for failure to answer bail, attempt to escape from lawful custody, obstructing a Territory public official (minor offence), obstructing a Territory public official and unlawful possession of stolen property – grounds of appeal asserted that sentences imposed were manifestly excessive – other grounds raised in submissions asserting error on the part of the magistrate – grounds of appeal not established – appeal dismissed

The Supreme Court has dismissed the appeal of a man who attempted to escape the Alexander Maconochie Centre by breaking through his cell window using a metal stool and then rappelling down to the ground outside by using bed sheets which had been tied together. The man had been sentenced to an aggregate of 12 months’ imprisonment for this and other minor offences by the magistrate hearing the matter. His appeal was on the grounds that the sentence was manifestly excessive.

The court considered the reasons of the magistrate in handing down his sentence and found that the sentence which had been imposed on the man was not only not manifestly excessive but was in fact lenient. In submissions, the man also raised points which asserted specific error on the part of the magistrate, but none of which were made out. The appeal was dismissed.

Tui v McLucas [2024] ACTSC 164

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Appeal against sentence imposed by Magistrates Court – error in Magistrate’s findings as to criminal history – error conceded by respondent – no lesser sentence appropriate in all of the circumstances – fine and good behaviour order confirmed.

TRAFFIC LAW – Licensing of drivers – driving with prescribed concentration of alcohol – repeat offender – nature of default disqualification period – Court to undertake assessment of appropriate disqualification period in light of relevant sentencing purposes – legislative reduction of default disqualification period whilst appeal pending - disqualification period reduced.

The Supreme Court has allowed in part an appeal against sentence imposed by the Magistrates Court for an offence of driving while intoxicated. The prosecution conceded there was an error in the Magistrate’s findings as to the appellant’s criminal history. On resentence, the Court found that no lesser sentence was appropriate and confirmed the 18-month good behaviour order imposed. However, the Court reduced the licence disqualification period from 3 years to 20 months, noting that recent legislative amendments reducing the default disqualification period applied to the appeal by virtue of s 84A of the Legislation Act 2001.

Regan v Masters [2024] ACTSC 135

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal from finding of guilt of assaulting a frontline community service provider – whether finding of guilt was unsustainable in the circumstances – where CCTV evidence alone is inconclusive – whether appellant was lawfully arrested – whether self-defence was raised if appellant was not lawfully arrested – whether all officers with custody of a detainee must ascertain validity of their arrest – whether conduct comprising assault was undertaken to prevent or end unlawful imprisonment – grounds of appeal not made out – appeal dismissed

The Supreme Court has dismissed an appeal against conviction from the Magistrates Court of the ACT. The appellant was found guilty in the Magistrates Court of two charges of assaulting a frontline community service provider, those providers being two police officers who came into custody of the appellant at the ACT Watch House following her arrest.

The appellant contended that the finding of guilt by the Magistrate was unsustainable in the circumstances, that the Magistrate erred in finding the appellant was lawfully arrested, and that the Magistrate erred by failing to find that self-defence had been raised and not negated beyond reasonable doubt.

The Court dismissed the appellant’s first and third grounds of appeal, finding that the Magistrate was correct to find the charge proved beyond reasonable doubt, and finding that self-defence by the appellant did not arise, as there was no evidence that the actions which resulted in the charges were done with the purpose of ending her purportedly unlawful imprisonment. Because this ground failed, the Court did not need to consider whether the appellant was lawfully arrested or not.

Block 27 Pty Ltd v Qursa Pty Ltd [2024] ACTCA 16

REAL PROPERTY – CROWN LEASES – Covenants – Crown lease imposed obligation on Crown lessee to sublease or transfer car parking spaces in premises to lessees of units in adjoining premises – Crown lease contained covenants which specified terms required in sublease – sublease did not comply with specified terms – provision in sublease requiring sublessor to comply with covenants in Crown lease – whether sublease could be interpreted as incorporating requirements of Crown lease even where inconsistent with terms of sublease – it could not

EQUITY – GENERAL PRINCIPLES AND MAXIMS OF EQUITY – Equity regards as done what ought to have been done – terms required by a Crown lease not incorporated into sublease –sublease contained clause providing sublessor must observe covenants and provisions of Crown lease – whether clause broad enough to incorporate provisions from Crown lease not in sublease where terms to be incorporated were contrary to various clauses of sublease – it was not – therefore equitable maxim could not operate so as to allow requirements of Crown lease to be treated as in incorporated in sublease

EQUITY – GENERAL PRINCIPLES AND MAXIMS OF EQUITY – Equitable defences – “unclean hands” – where Crown lease transferred to new proprietor – where previous proprietor failed to fulfil obligation to grant complying sublease – whether new proprietor subject to obligation – whether continued failure to fulfil obligation considered wrongdoing for the purposes of the equitable maxim – held that new proprietor acquired the Crown lease subject to the terms of the Crown lease and the liabilities of the previous registered proprietor – held that continued failure to fulfil obligation considered to be wrongdoing and broader public interest in upholding Crown lease purpose – equitable relief refused

CONTRACT – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – Third party benefit trust – obligation in Crown lease implements planning scheme that benefits third parties – whether Territory is a trustee of the benefit of those obligations – whether beneficiaries of those obligations may sue for the enforcement of those obligations even though not a party to the Crown lease – no intention to make the Territory a trustee – no third party benefit trust established

The Court of Appeal has dismissed an appeal by the incoming corporate owners of a car parking facility in Dickson, pointing to the equitable maxim that “they who come to Equity must come with clean hands”.

The Court of Appeal also dismissed the cross-appeal brought by the first respondent, finding that it could not be inferred that the Territory intended to subject itself to the duties of a trustee by incorporating covenants to benefit third parties in the terms of a Crown lease.

DPP v Valentino (a pseudonym) [2024] ACTSC 140 (SCC 210 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – sexual intercourse with a person under the age of 16 years – where offender repeatedly breached position of trust – where many separate sexual acts occurred over a sustained period – acquiescence obtained by blackmail does not constitute consent – where offender is a victim of child sexual assault – consideration of Bugmy factors – children in need of somewhere to live need to be protected against predatory behaviours – lengthy prison sentence required

Decision Restricted [2024] ACTSC 165

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a permanent stay – principles of double jeopardy and autrefois acquit – incontrovertibility principle engaged – where accused previously acquitted of one charge and no verdict reached on second charge – where charges were tied together by particulars – where recasting of prosecution case would be oppressive – application for permanent stay of Count 1 granted.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a permanent stay – principles of double jeopardy and autrefois convict – where accused previously convicted of offence against alleged witness to later charge – subsequent verdict would not controvert earlier conviction – application for permanent stay of Count 2 dismissed.

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.BakerJ@courts.act.gov.au

DPP v Alexander (a pseudonym) [2024] ACTSC 161

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – application for bail and review of bail decision from the Magistrates Court – [redacted] – where accused detained with convicted offenders, contrary to s 19 of the Human Rights Act 2004 (ACT) – breach of human right amounts to “special or exceptional circumstances” for the purpose of s 9D of the Bail Act 1992 (ACT) – consideration of s 22 factors – bail granted

CRIMINAL LAW – STATUTORY INTERPRETATION – Accused detained with convicted offenders, contrary to s 19 of the Human Rights Act 2004 (ACT) – whether contravention amounts to “special or exceptional circumstances” for the purpose of s 9D of the Bail Act 1992 (ACT) – consideration of relevant statutory provisions and Corrective Services policies – right contained in s 19(2) not limited by s 44 of the Corrections Management Act 2007 (ACT) – purpose of s 44 is to implement rather than qualify the right contained in s 19(2) – special circumstances favouring the grant of bail established

The Supreme Court has granted bail to an accused. The accused was detained with convicted offenders, contrary to s 19 of the Human Rights Act 2004 (ACT). The court considered whether the breach of the accused’s human right amounted to “special or exceptional circumstances” for the purpose of s 9D of the Bail Act 1992 (ACT). The court determined that the right to segregation from convicted offenders is not limited by s 44 of the Corrections Management Act 2007 (ACT). Therefore, special circumstances favouring the grant of bail were established and the court determined that a grant of bail was appropriate.

R v Victors (a pseudonym) [2022] ACTSC 33

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in Proceeding – Crown seeks that the accused be examined by Crown psychiatrist – question as to accused’s fitness to plead – historical sexual assault offences – where accused suffers from Alzheimer’s and vascular dementia – question of fitness to plead reserved for investigation – order that accused be examined by Crown psychiatrist – appropriateness of order before investigation hearing commences

DPP v Williams [2024] ACTSC 160

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – judge-alone verdict – arson – possess knife – resist territory official – trespass – consideration of verdict of not guilty by way of mental impairment – circumstantial case – reasonable hypothesis consistent with innocence not excluded by the prosecution – not guilty on arson, obstruct and possess knife offences – trespass offence admitted – agreement between experts that the accused suffered from schizophrenia – satisfied on the balance of probabilities that the accused had a mental impairment – special verdict of not guilty because of mental impairment on trespass offence – accused discharged absolutely pursuant to s 20BJ(4) of the Crimes Act 1914 (Cth)

The Supreme Court, by judge-alone trial, has found the accused person not guilty of arson, possessing a knife and obstructing a territory official, and not guilty by way of mental impairment on a charge of trespass. The accused suffered from schizophrenia. The prosecution case was circumstantial. It could not be excluded that the fire was caused by electrical fault or unintentionally; the accused could not be found guilty beyond reasonable doubt. The Court found the accused had not been lawfully arrested at the time he resisted a territory official and therefore the offence was not proved. The trespass offence was admitted by the accused.

DPP v Carr [2024] ACTSC 130 (SCC 46 of 2023)

CRIMINAL LAW – Judgment and Punishment – breach of suspended sentence – obtaining property by deception –whether to resentence – where breach was not especially serious – where offender had taken rehabilitative steps including seeking restoration of children to her care – offender resentenced

The Supreme Court has resentenced an offender to a term of 11 months, suspended after 2 months and 2 days upon the offender entering into a good behaviour order. The sentence related to 3 offences of using false documents.

The offender had breached a good behaviour order previously imposed by the Supreme Court on 14 November 2023 as part of a sentence to a term of imprisonment for 10 months, suspended after 2 months and 1 day upon entry into a good behaviour order.

Upon commencement of the suspension, the offender had the next day used a stolen bank card to purchase items from an IGA supermarket in Evatt, thus committing an offence of obtaining property by deception. The offender was then sentenced in the Magistrates Court in relation to that offence to a period of 3 months’ imprisonment, which was served in the intervening period.

The Supreme Court determined that in the circumstances a resentence was appropriate to promote the offender’s rehabilitation and to facilitate a supervised transition into the community.

R v Crivici [2024] ACTSC 156 (SCC 300 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of child exploitation material – using carriage service to possess child abuse material – using carriage service to transmit child abuse material –  where offender assisted law enforcement authorities – where assistance rendered by the offender was both unusual and significant in its scope –  combined discount of 40% imposed for guilty plea and assistance to law enforcement authorities –  sentenced to term of imprisonment – ACT and Commonwealth term of imprisonment for possession to be served concurrently – limited partial concurrency between the two Commonwealth sentences – ACT sentence fully suspended upon entry to a good behaviour order  – exceptional circumstances justified immediate and full suspension of the Commonwealth sentences on recognisance release order

The Supreme Court has sentenced an offender for possession of child exploitation material and using a carriage service to transmit child abuse material.

The offender informed police of the material, and of her and her co-offender’s guilt. The assistance the offender provided was therefore significant and unusual. A combined discount of approximately 40% was applied for this assistance and the offender’s plea of guilty.

A sentence of fully suspended imprisonment was imposed for all charges on the basis of the assistance by the offender to law enforcement authorities.

DPP v Ryan (No 2) [2024] ACTSC 94 (SCC 265 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated act endangering health (choking, suffocating, or strangling another person) – aggravated assault occasioning actual bodily harm – family violence – offending in breach of good behaviour order made under a suspended sentence –  Drug and Alcohol Treatment Order had been declined as unsuitable – cancellation of good behaviour order – imposition of suspended sentence – Bugmy considerations – term of imprisonment and nonparole – rehabilitation through a parole order

The Supreme Court sentenced an offender for aggravated act endangering health (choking, suffocating, or strangling another person) and aggravated assault occasioning bodily harm involving family violence to the offender’s then partner. The Court previously declined to make a Drug and Alcohol Treatment Order for the offender in relation to these offences as he was deemed unsuitable. The offender elected to remain in the jurisdiction of the Supreme Court and the matter proceeded to sentence. The Court considered the nature of the offending aggravated by a history of family violence towards the same then partner, as well as the offending subject to the current sentencing exercise being a breach of the good behaviour order imposed on the offender for previous family violence offences. The Court considered the subjective circumstances of the offender and his vulnerabilities, and concluded that rehabilitation could be achieved through a parole order. The Court sentenced the offender to 4 years 2 months 29 days imprisonment, with a nonparole period of 28 months commencing on 24 April 2023.

Ross v Gordon [2024] ACTSC 158

ESTOPPEL – ISSUE ESTOPPEL – Administration of will – claim that executor is estopped from relying on lack of funds to refuse to pay legacy to plaintiff – issue not raised in previous proceedings before the court – estate’s ability to pay legacy to plaintiff if cheques written by the deceased unenforceable not an issue for determination in previous proceedings – issue not addressed in the court’s reasons – issue estoppel does not arise

ESTOPPEL – ANSHUN ESTOPPEL – Administration of will – claim that executor is estopped from relying on lack of funds to refuse to pay legacy to plaintiff – failure to plead lack of funds to pay legacy not unreasonable – pleading not required to address claim in previous proceedings – where costs of previous proceedings influenced estate’s capacity to pay legacies – Anshun estoppel not established

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Entitlement of executor to seek reimbursement of legal fees incurred in administration of estate – statutory entitlement established by Trustee Act 1925 (ACT) and Court Procedures Rules 2006 (ACT) – unnecessary to determine whether legal expenses should be apportioned between the different capacities in which defendant sued

The Supreme Court has dismissed an application seeking removal and replacement of the executor of an estate. The plaintiff claimed that the defendant had refused to perform her obligations as executor by refusing to pay a legacy to the plaintiff. He further claimed that the defendant was estopped from relying on a lack of funds in the estate to refuse payment as the defendant had not raised the issue in previous proceedings before the court. The court determined that no estoppel arose from the previous proceedings concerning the administration of the estate. The issue of the estate’s capacity to pay the legacy was not raised in the previous proceedings and the costs incurred in the previous proceedings influenced the estate’s capacity to pay the legacy. The plaintiff did not establish any failure by the defendant to properly administer the estate, and consequently the basis for an order for removal of the executor was not established.

Hoyt v Mickelson; Rendall v Mickelson [2024] ACTSC 79

APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court against sentences – where offenders sentenced for two offences of assault occasioning actual bodily harm – where sentences imposed for two separate victims were entirely concurrent – where offenders received essentially no further punishment for violently assaulting second victim –  whether s 218 of the Magistrates Court Act 1930 (ACT) requires variation to be in a downwards direction – where Court reached tentative conclusion that appellants risked more severe sentence upon resentencing – parties given ‘Parker warning’ – leave granted for appeals to be withdrawn

The Supreme Court has given leave for two appellants to withdraw their appeals following a warning from the Court that their sentences could increase if they continued the proceedings. The appellants were each convicted in the Magistrates Court of two offences of assault occasioning actual bodily harm and sentenced to terms of imprisonment of three years and two months for each offence, to be served concurrently, with a non-parole period of one year and six months. The offending was described by the Magistrate as “savagery”, leaving the victims with significant lifelong injuries. Following discussions with each of their counsel, the appellants sought leave to discontinue the appeals.

Fares v DPP [2024] ACTCA 14

Giles (a pseudonym) v Stamp (a pseudonym) [2024] ACTSC 150

CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against costs order – competency of appeal – whether Special Magistrate exercised discretion in circumstances where it was not appropriate to do so – whether Special Magistrate miscarried exercise of discretion – consideration of evidence before Special Magistrate when making costs order – calculation of professional costs incurred – appeal allowed in part

The Supreme Court has allowed an appeal from the Magistrates Court in part. The appellant sought to have a costs order made in the Magistrates Court following Personal Protection Order proceedings set aside. The Supreme Court first determined the preliminary issue of jurisdiction, finding that the costs order exceeded the monetary limit referred to in s 274(2) of the Magistrates Court Act 1930 (ACT) and that there was thus an appeal as of right from that order to the Supreme Court.

The appellant contended on two grounds that the discretion of the Magistrate was miscarried, first in awarding costs and secondly in fixing the amount of costs ordered. The Supreme Court held that the first ground was not established, as no error in the exercise of discretion was demonstrated. The appellant was successful on the second ground, the Supreme Court finding that the Magistrate did not have the evidence before her to find the facts necessary to make the costs order in question, and her discretion was thus miscarried.

The Supreme Court ordered that the costs order of the Magistrate be set aside, and that Supreme Court would re-exercise the Magistrate’s discretion on costs following submissions from parties.

Golding v Primavera Holdings Pty Ltd (No 2) [2024] ACTSC 149

PRACTICE AND PROCEDURE – COSTS – Apportionment of costs – whether costs referable to separate issues – whether costs to be considered as a whole – where interest claimed – costs awarded in favour of plaintiff – interest awarded

Re referral under r 6142 [2024] ACTSC 148

PRACTICE AND PROCEDURE – ABUSE OF PROCESS – Referral of document for directions under r 6142 Court Procedures Rules 2006 (ACT) – document seeks to commence judicial review proceedings – party attempting to commence proceedings has been declared a vexatious litigant – no leave of court to commence proceedings – institution of proceedings would be an abuse of process – Registrar directed to reject document

The Supreme Court directed the Registrar to reject a document lodged with the registry. The document sought to commence judicial review proceedings. The party attempting to commence proceedings had been declared a vexatious litigant and did not have the court’s leave to commence proceedings. The institution of proceedings would be an abuse of process.

R v Po’oi (No 6); DPP v Po’oi [2024] ACTSC 6 (SCC 275 of 2020; 276 of 2020; 277 of 2020; SCC 309 of 2021; 310 of 2021; SCC 79 of 2023; SCC 80 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Taking Motor Vehicle without Consent – Damaging Property – Dishonesty Driving and Riding in a Motor Vehicle Without Consent – Aggravated Dangerous Driving - Driving while Unlicenced – Failing to Stop for Police – Driving with Drugs in Oral Fluid - Resentence on Cancellation of Drug and Alcohol Treatment Order – Imprisonment – Suspended Sentence – Continued Rehabilitation in the Community

Hicks (a pseudonym) v DPP [2023] ACTCA 17

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for leave to appeal interlocutory decision – factors to be considered – demurrer to indictment – incitement to procure a murder – whether the offence of incitement to procure where the offence incited is not carried out is an offence known to law.

R v Vilayur [2023] ACTSC 59

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for indictment to be quashed – s 135.3 Criminal Code Act 1995 (Cth) – Application for permanent stay of proceedings – proceedings ‘foredoomed to fail’ – jurisdiction of Supreme Court to set aside proceedings under r 4570 Court Procedures Rules 2006 (ACT) – whether conduct constituting offending illegally procured by Commonwealth – Ridgeway application – no concession that evidence illegally obtained  whether prosecutorial process is oppressive and vexatious – disclosure process – Crown failure to disclose material in brief of evidence – voluminous material produced under subpoena.

DPP v O’Connell [2023] ACTSC 131

CRIMINAL LAW – CRIMINAL PROCEDURE – Evidentiary matters relating to witnesses – application to redact aspects of Evidence in Chief Interviews – objections to admissibility of parts of EICI – state of mind evidence – whether jury would be prejudiced hearing allegations of violence occurring close in time to alleged offending – whether prejudicial effect could be reduced by anti-tendency direction – probative value of evidence objected to – objection to lay persons estimate of speed – when objections to EICI should be made.

R v McBride (No 4) [2024] ACTSC 147 (SCC 127 of 2019)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – theft of confidential documents from Australian Defence Force premises – offending occurred over a substantial period and involved multiple occasions – gross breach of trust held by senior legal advisor in a sensitive position within the Army – consideration of consequences of theft for Australia’s defence, national security and international relations – sentence of imprisonment imposed

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – unlawfully communicating naval, military or air force information – offender disclosed stolen documents and information to journalists – offending enabled by senior position of trust – lack of remorse – importance of general deterrence – consideration of consequences of disclosure for Australia’s defence, national security and international relations – sentence of imprisonment imposed

STATUTES – INTERPRETATION – Treatment of maximum penalty for offence under s 73A of the Defence Act 1903 (Cth) – where maximum penalty is “a fine of any amount or imprisonment for any term, or both” – consideration of legislative history – offence provision repealed and substituted in 2001 – clear legislative intention to retain severity of penalty provision – penalty applies in accordance with its terms

The Supreme Court has sentenced an offender to five years and eight months’ imprisonment for the offences of theft and unlawfully communicating naval, military or air force information.

The offender, David McBride, is a lawyer who held the rank of Major in the Australian Army. He had a high level security clearance. When police executed a search warrant at his property in February 2018, they seized 235 Commonwealth documents stolen from Australian Defence Force (ADF) facilities. 207 of the documents had the national security classification SECRET.

Mr McBride had a number of complaints about the management of the ADF. He made a submission to the Inspector General of the Australian Defence Force (IGADF) in August 2014, which included two folders of supporting documents, many of which had the SECRET classification. One of his complaints was that Special Forces soldiers who were involved in the deaths of civilians in Afghanistan were being investigated by the military police even where there was no reasonable suspicion that the war crime of murder had been committed. The IGADF conducted an inquiry into the matters raised in his submission. Before that inquiry was complete, Mr McBride disclosed his IGADF submission and the folders of supporting documents to two journalists. The first was Chris Masters. The second was Andrew Clark. Neither published any report based on the material.

In April 2016, Mr McBride set up a website on which he published some Commonwealth documents and blog posts that he wrote. He was not authorised to disclose this material. He was subsequently contacted by Daniel Oakes, a journalist, and disclosed to Mr Oakes his IGADF submission, the folders of supporting documents and further documents that he had taken from ADF facilities. Mr Oakes published a series of articles referred to as “The Afghan Files”. The articles publicised allegations that Special Forces soldiers were unnecessarily killing Afghan civilians. It was described by Mr McBride in an interview with police as “a totally different story to the one … that I was pushing”.

Count 1, the charge of theft contrary to s 131.1(1) of the Criminal Code (Cth), related to the taking of documents by Mr McBride from ADF facilities. The maximum penalty is 10 years’ imprisonment or a fine of 600 penalty units, or both.

Counts 2 and 3 were charges of unlawfully communicating Commonwealth naval, military or air force information, contrary to s 73A(1) of the Defence Act 1903 (Cth). The maximum penalty is a fine of any amount or imprisonment for any term, or both. Count 2 related to the disclosures to Mr Masters and Mr Clark. Count 3 related to the disclosures to Mr Oakes. On count 3, the court also took into account a breach of s 70(1) of the Crimes Act 1914 (Cth) relating to publications by Mr McBride on his website.

The court found that the offending involved a gross breach of trust by a senior legal advisor in a sensitive position within the ADF. The offender breached his obligations as both a soldier and a lawyer in pursuit of his own view of how the ADF should be managed.  The court considered the consequences of the offending for Australia’s defence, national security and international relations. The court took into account the offender’s guilty plea and his assistance to authorities and determined that no sentence other than a sentence of imprisonment was appropriate.

The court imposed sentences of imprisonment in relation to the three offences, which gave an aggregate sentence of five years and eight months. The court rejected a submission by Mr McBride that the sentence should be served in the community under an intensive correction order. The court set a non-parole period of two years and three months. Mr McBride’s sentence ends in January 2030. He will be eligible for release on parole in August 2026.

R v Warne [2020] ACTSC 313

CRIMINAL LAW – JURISDICTION PRACTICE AND PROCEDURE – Bail – change of circumstances – brief of evidence – bail granted

R v El-Debel; R v Kahlon (No 6) [2022] ACTSC 156

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – no case to answer application by defence – where there is a good deal of evidence at least sufficient to go to the jury

R v El-Debel; R v Kahlon (No 4) [2022] ACTSC 149

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Record of interview – whether the accused’s record of interview should be wholly or partially excluded

R v El-Debel; R v Kahlon (No 3) [2022] ACTSC 135

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Jury trial – whether there was confusion, misapprehension or diversion arising from the Crown’s opening to the jury – where Crown opening was not unclear or raised allegations outside of the anticipated Crown case

R v El-Debel; R v Kahlon (No 5) [2022] ACTSC 152

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tender of a spreadsheet – parts of the document of vague – parts of the document are not explained – document has the potential to be highly prejudicial and unfair.

R v Vilayur (No 3) [2024] ACTSC 132 (SCC 95 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – conspiracy to dishonestly obtain a gain from a Commonwealth entity – offender participated in scheme to influence government procurement process for contractors – lack of remorse – need for parity with sentences of co-offenders – sentence of three years and four months’ imprisonment to be served by intensive correction

The Supreme Court has sentenced an offender to three years and four months’ imprisonment, to be served by way of intensive correction in the community. The offender was part of a conspiracy to dishonestly obtain a gain from the Department of Finance. He participated in a scheme to influence the government procurement process for contractors. The court considered that the offender lacked remorse for the offending. However, the court recognised the need for parity with the sentences of his co-offenders.

R v El-Debel; R v Kahlon (No 2) [2022] ACTSC 134

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – admissibility of evidence – relevance – hearsay – unfair prejudice

R v Vilayur; R v Kahlon; R v El-Debel [2022] ACTSC 110

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – application by accused person for temporary stay of criminal proceedings – delay in trial due to Crown – where one accused not ready to proceed to trial – where other co-accused are ready to proceed to trial

DPP v Graham [2024] ACTSC 67 (SCC 91 of 2023; SCC 275 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery by way of joint commission – unauthorised possession of prohibited firearms – early guilty plea – consideration of motivation – consideration of Bugmy factors – term of imprisonment imposed – restorative justice referral

The Supreme Court has sentenced an offender to a period of imprisonment of 8 years with a non-parole period of 5 years for offences relating to two home invasions.

As a result of the first home invasion, the offender was to be sentenced for one count of aggravated robbery and two counts relating to the unauthorised possession or use of firearms. The Court considered this home invasion to be particularly serious as the offender was armed with a firearm, it involved the infliction of actual violence upon multiple victims, and two of the victims were children. As a result of the second home invasion, the offender was to be sentenced for one count of aggravated burglary. In considering the objective seriousness, the Court noted that the offending occurred at a residential home and at a time of the night when the victims were likely to have been asleep and thus vulnerable.

The Court considered that the offender’s moral culpability was reduced because of the early age in which he began using drugs, and the connection between his mental disorders, drug use, and offending behaviour. Ultimately, the Court was of the view that a lengthy sentence of imprisonment was necessary to reflect the objective gravity of the offending. To balance the importance of general deterrence with the need to promote the offender’s rehabilitation, the Court ordered that the offences of aggravated burglary and robbery be referred for restorative justice.

R v West [2023] ACTSC 412 (SCC 174 of 2021; SCC 175 of 2021)

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – Sentence – attempted aggravated robbery – aggravated burglary – theft – driving and riding in motor vehicle without consent – failing to stop motor vehicle for police – pleas of guilty – where similar prior convictions – where Bugmy factors present – Victim Impact Statements– Drug and Alcohol Treatment Order made

Xavier (a pseudonym) v Trustees of the Marist Brothers [2024] ACTSC 141

CIVIL LAW – PRACTICE AND PROCEDURE – Application to set aside deed of release – child sexual abuse - potentially relevant documents not in the possession of the plaintiff at the time of the agreement – whether the deed of release is a just and reasonable agreement - deed of release set aside

DPP v Victors (a pseudonym) (No 2) [2022] ACTSC 328

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to plead – where presumption is that the respondent is fit to plead – where there is conflicting medical expert evidence – where medical experts disagree on degree of cognitive impairment – respondent found fit to plead

Kizmann v De Maine (No 2) [2024] ACTSC 139

CIVIL LAW – LOAN AGREEMENT DISPUTE – where plaintiff made five loans to a friend – identity of the borrower – whether the loans were requested by the friend in his personal capacity or on behalf of his company – where plaintiff signed a written agreement with the company for one of the loans – whether the signed agreement was a sham prepared for the purpose of securing the release of the funds from a foreign bank after the legitimacy of a transfer of foreign currency was questioned

The Supreme Court has found a man personally liable to repay five loans from a friend.

The man claimed the loans were advanced not to him but to his company.  The Court rejected that claim and found that a signed written agreement for one of the loans that named the company as the borrower was a sham, prepared by the man to facilitate the release of the funds from a foreign bank.  The Court was satisfied that, on an objective analysis of the conversations and conduct of the two men, they were dealing with each other in a personal capacity.

Decision Restricted [2024] ACTSC 80

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – allegations of child sexual offences – cross-admissibility of tendency evidence – s 97A of the Evidence Act 2011 (ACT) – whether exceptional circumstances – where allegations highly prejudicial –presumption of significant probative value rebutted – separate trials necessary

As the judgment is restricted it is not publicly available. Any enquires about this decision should be directed to Associate.ActingJ@courts.act.gov.au

Hartfield v Calvary Healthcare ACT Ltd (No 3) [2024] ACTSC 137

CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Admissibility of supplementary expert evidence – where evidence goes to issues which were previously the subject of extensive evidence – where other evidence on issues is already available – where evidence will cause or result in an undue waste of time – evidence excluded – application to strike out part of Further Amended Defence – where amendments are not responsive to changes in Amended Statement of Claim – application dismissed – whether necessary to plead s 110 of the Civil Law (Wrongs) Act 2002 (ACT).

DPP v Al Mofathel [2024] ACTSC 117 (SCC 209 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – charges of money laundering, procure perjury, make false evidence, general dishonesty, traffic a trafficable quantity of cannabis, contravene s 3LA order – offending involved two co offenders – agreement to launder money, agreement to lie and make false evidence in Magistrates Court proceedings, trafficking cannabis, and refusal of direction to unlock mobile telephone during police search – co offenders already sentenced – substantial criminal history – rehabilitation must remain significant consideration – sentence of seven years and four months' imprisonment imposed with non-parole period of four years and five months

The Supreme Court has sentenced an offender to seven years and four months’ imprisonment with a non-parole period of four years and five months. The offender pleaded guilty to money laundering, procuring perjury, making false evidence, general dishonesty, trafficking a trafficable quantity of cannabis and contravening a s 3LA order.

The offending involved two co-offenders who have already been sentenced. The offending involved trafficking cannabis and laundering the proceeds through a local restaurant owned by one of his co-offenders. The further offending involved agreements with his co-offenders to lie in Magistrates Court proceedings against the offender, to make false evidence between the two co-offenders, and refusing to unlock his mobile phone in contravention of a s 3LA order given by investigating police.

The court noted the offender had a substantial criminal history but took into account the offender’s age and the fact that rehabilitation must remain a significant consideration in arriving at the appropriate sentence.

DPP v Mussillon [2023] ACTSC 75 (SCC 78 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – plea of guilty to charges of money laundering, tampering with evidence, perjury, making false evidence, general dishonesty and obtaining property by deception – offender did not stand to benefit significantly from money laundering – offender diagnosed with autism and PTSD – sentence of immediate custodial term imposed to be suspended after five months upon entering into a good behaviour order

The Supreme Court has published the reasons for sentence of an immediate custodial term upon an offender, to be suspended after five months. The offender entered a plea of guilty to various offences including money laundering and perjury. The court considered his subjective circumstances in imposing the sentence, including his diagnoses of PTSD and autism. However, the court considered that a term of imprisonment was necessary in order for the sentence to adequately denounce, deter and punish the brazen and enthusiastic falsehoods constituting the act of perjury.

DPP v Krutsky (No 2) [2024] ACTSC 120 (SCC 53 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting actual bodily harm – where offender threw hot tea at a volunteer attending a corrections facility – offending committed in custody – offender would have been released on parole were it not for the current offending – serious example of the offence of recklessly inflicting actual bodily harm – s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT) applies –  no nonparole period imposed  – direction under s 72(3) of the Crimes (Sentencing Act) 2005 (ACT) made  – discount of approximately 10% applied for offer to plead guilty to offences carrying the same maximum penalty and broadly consistent with ultimate verdict ten days before trial – sentenced to term of imprisonment – legislative amendment to s 64(2)(e)

The Supreme Court has sentenced an offender for recklessly inflicting actual bodily harm. The offender poured hot tea on a volunteer attending the AMC. The offending is a serious example of the offence.

The sentence was reduced from 13 months to take into account a 10% discount for the offer to plead guilty. The offender has been sentenced to 11 months and 21 days’ imprisonment after the discount. A non-parole period could not be set for offending in custody at the time of sentence, and the decision contains observations on the recent amendment to this position that entered into force on 26 April 2024.

R v Kader (No 2) [2022] ACTSC 56

CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s past sexual activities – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – where accused consents to evidence being adduced

R v Vilayur (No 2) [2024] ACTSC 2

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Disclosure – whether court has power to require further prosecution witness statements – whether court should order Basha inquiry – where no unfairness to accused established – application dismissed

McCarthy & Chatterton v ACT Property Inspections Pty Limited [2024] ACTSC 131

PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Defendant seeks to strike out paragraphs of the plaintiffs’ Statement of Claim – whether the pleading fails to comply with the procedural rules – whether aspects of the pleadings are embarrassing and/or non-compliant with the Court Procedures Rules 2006 (ACT) – application granted in part

The Supreme Court has granted in part an application by the defendant to strike out portions of a statement of claim. The Court found that three of the paragraphs in issue ought to be struck out and the plaintiffs granted leave to re-plead and dismissed the application for the remaining paragraphs.

Director of Public Prosecutions v Kader (No 5) [2022] ACTSC 322

CRIMINAL LAW – PRE-TRIAL APPLICATION – Application to sever indictment – whether refusal to sever would cause unfair prejudice and embarrassment to the accused – where evidence accepted to be cross-admissible – where refusal to sever would lead to inability to elect for trial by judge alone

Director of Public Prosecutions v Kader (No 4) [2022] ACTSC 287

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Subpoena – Application to set aside – Medical documents – whether subpoena serves a legitimate forensic purpose – whether subpoena amounts to a “fishing expedition” – where documents sought likely to be subject to a claim of privilege on the grounds of protected confidences

Director of Public Prosecutions v O’Connell (No 3) [2023] ACTSC 150

CRIMINAL LAW – CRIMINAL PROCEDURE – discharge of juror – whether juror should not continue to act as a juror owing to any “other sufficient cause” – juror member’s delayed recognition of witness – finding there would be reasonable apprehension of bias if juror remained on panel – finding juror would not be able to give impartial consideration to evidence owing to acquaintanceship with witness – trial to continue with reduced number of jurors

R v Kader (No 3) [2022] ACTSC 159

CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s past sexual activities – Operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – Where the evidence is relevant to a fact in issue – Where there is no suggestion of prejudice to the accused beyond any resulting from the probative value of the evidence

CRIMINAL LAW – PROCEDURE – Application for witnesses to give evidence by audio visual link – Where witnesses are giving medical expert evidence – No unfairness to the accused

DPP v Morley [2024] ACTSC 124 (SCC 307 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – family violence offence – offender murdered wife and then tried to kill himself – where victim suffering from early stages of dementia – plea of guilty – consideration of offender’s age and infirmity – importance of general deterrence – sentence of imprisonment imposed

The Supreme Court has sentenced an offender to nine years’ imprisonment. The 92-year-old offender murdered his wife and then tried to take his own life. The victim was in the early stages of dementia and the offending occurred in a family violence context. The offender pleaded guilty to the offence and offered assistance to the police. The court considered the effect of the offender’s old age and infirmity as well as the importance of general deterrence in arriving at the appropriate sentence.

DPP v Faris; DPP v Fares [2024] ACTSC 115 (SCC 125 of 2022; SCC 126 of 2022; SCC 127 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – insurance fraud – attempt to obtain financial advantage by deception – staged motor vehicle collision – diversion of important community resources – lack of remorse – general and personal deterrence of importance – where offenders suffered genuine injuries – where offenders are husband and wife – consideration of hardship to others

The Supreme Court has sentenced one offender to a period of imprisonment of 2 years with a non-parole period of 1 year and another offender to a period of imprisonment of 2 years to be served by an Intensive Correction Order for a number of offences relating to insurance fraud resulting from a staged motor vehicle collision.

In considering the objective seriousness of the offences, the Court noted that the offenders were not remorseful for the fact that their staged motor vehicle collision caused the diversion of important community resources away from people with more genuine needs, including police, paramedics, and the fire brigade. The Court was required to take into account the probable effect any sentence would have on the offenders’ family or dependents. The Court noted that as the offenders are married, this issue could not be considered in isolation and the effects on the offenders’ children were very important to consider in deciding the appropriate sentences.

Ultimately, the Court considered that given the importance of general and personal deterrence, sentences of imprisonment were required. However, in light of the considerations of family hardship, the Court accepted that Ms Faris’ sentence should be served by way of an Intensive Correction Order. In respect of Mr Fares, the Court considered that nothing less than a period of immediate full-time imprisonment reflected the objective gravity of his offending.

DPP v Parker [2024] ACTSC 125 (SCC 76 of 2023; SCC 75 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – purposes of sentencing – applicability of Bugmy principles – where offence committed in breach of conditional liberty – offender assessed as suitable for imposition of an Intensive Corrections Order – positive prospects of rehabilitation – Intensive Corrections Order imposed.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of suspended sentence – breach through commission of further offence in New South Wales – further offence was of less serious nature – importance of rehabilitation – Intensive Corrections Order imposed.

The Supreme Court has sentenced an offender to an 18 month Intensive Corrections Order for an offence of assault occasional actual bodily harm. The Court also resentenced the offender for a breach of earlier suspended sentences by imposing a 10 month Intensive Corrections Order. The total sentence imposed was imprisonment for 2 years to be served by way of an ICO.

DPP v Daniel (a pseudonym) [2024] ACTSC 128 (SCC 237 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service for child abuse material – act of indecency on child aged under 10 years – offender published video of naked child on her private Tik Tok – material not available to other users of TikTok – video not intended to be viewed by anyone other than child’s mother – no requirement to vindicate harm – no requirement for protection of the community – non-conviction orders imposed – good behaviour order and recognizance release order imposed.

The Supreme Court sentenced an offender for using a carriage service for child abuse material and committing an act of indecency on a child under 10 years. The offender published a video of her naked grand-daughter on her private Tik Tok account and sent it to her daughter (the child’s mother). There was no purpose of sexual gratification or profit, and the video was not available to other Tik Tok users. The Court found this was an exceptional case in which it was appropriate to impose non-conviction orders (accompanied by a one-year good behaviour order), in respect of each offence.

Hua v Qiao [2024] ACTSC 121

APPEAL – CRIMINAL LAW – review appeal from ACT Magistrates Court against sentence imposing non-conviction order – assault occasioning actual bodily harm – family violence – where non-conviction order not sought by either party – whether procedural fairness was denied – whether practical injustice – whether sentence was also manifestly inadequate – whether residual discretion should be exercised – where rehabilitation had occurred and lack of utility – appeal dismissed

The Supreme Court has dismissed a review appeal against sentence brought by the prosecution in relation to a non-conviction order, exercising its residual discretion to decline to intervene notwithstanding the finding of error.

The review appeal related to whether there was a denial of procedural fairness in the making of a non-conviction order in circumstances where such an order was not sought by the parties.  A further complaint was whether the sentence was manifestly inadequate.

The respondent had accused his then girlfriend (the victim) of cheating on him and assaulted the victim by striking her face and back, exerting force on her neck, and repeatedly cut large chunks of hair from her head.

The Supreme Court found that there had been a denial of procedural fairness in the circumstances of the submissions that were made.  The Court also found that the sentence was manifestly inadequate given the objective seriousness of the violence that occurred, the family violence context and the lack of compelling circumstances warranting an exceptional outcome.

However, the Supreme Court exercised its residual discretion to decline to intervene because the respondent had undertaken rehabilitative steps and further lack of utility due to the respondent now residing in China. The practical reality was that the respondent was beyond the jurisdiction of the Court.

Phillips (a pseudonym) v Burton [2024] ACTSC 127

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court –appeal against conviction – whether finding that the offence was proved was unreasonable – whether Chief Magistrate erred in failing to properly apply Liberato direction – consideration of whether onus of proof was reversed – whether Chief Magistrate engaged in inappropriate tendency reasoning – each ground not established – appeal dismissed

The Supreme Court has dismissed an appeal from the Magistrates Court against a conviction of committing an act of indecency on a person under 16 years of age. The name of the appellant has been anonymised to protect the privacy of the victim. The appellant submitted that the Chief Magistrate erred in a number of ways when finding the appellant guilty, including failing to properly apply the Liberato direction, reversing the onus of proof, and excluding evidence which related to a dispute between the accused and the complainant’s stepfather. The appellant also submitted that it was unreasonable that the Chief Magistrate found the offence proved on the evidence before her.

The Court held that each of the appellant’s grounds must fail. The Court found that the Chief Magistrate had assessed both parties’ cases before reaching the conclusion of guilt and that her Honour had not erred in the manner submitted by the appellant. The Court noted that when the Liberato direction is applied by a judicial officer to themselves, brevity in the direction can scarcely be criticised.

DPP v Smith (No 2) [2024] ACTSC 126 (SCC 182 of 2023; SCC 183 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated Robbery – Aggravated Assault – Aggravated Damaging Property – Dishonestly Riding in a Motor Vehicle Without Consent – Theft – Minor Theft – Imprisonment - Drug and Alcohol Treatment Order made

Application by GW pursuant to s 424 Crimes Act 1900 (ACT) [2024] ACTSC 123

CRIMINAL LAW – JURISDICTION – Form of application required to enliven court’s power to order an inquiry under s 424 Crimes Act 1900 (ACT) – nature of proceedings for application under s 424 – Ch 2 of the Court Procedures Rules 2006 (ACT) applies – r 34(2) requires application be commenced by Originating Application – where applicant commenced proceedings by letter on advice from Registry – requirements of r 34(2) dispensed with

CRIMINAL LAW – INQUIRY AFTER CONVICTION – Application for inquiry into conviction under s 424 Crimes Act 1900 (ACT) – applicant convicted at trial of an act of indecency on a young person under the age of 10 – claim of doubt or question about whether the complainant’s report and evidence was a false autobiographical memory – applicant failed to demonstrate that the doubt or question could not have been properly addressed at trial or on appeal – mandatory requirement in s 422(1)(c) not satisfied – application dismissed

The Supreme Court has dismissed an application for an inquiry into a criminal conviction. The applicant was convicted at trial of an act of indecency on a young person under the age of 10. The application was commenced by a letter to the court. The court determined that an application for an inquiry must be commenced by Origination Application, pursuant to r 34(2) of the Court Procedures Rules 2006 (ACT) (Rules). However, in circumstances where the applicant had commenced the proceedings by letter on advice from the Supreme Court Registry, the court dispensed with the requirements of the Rules and treated the letter as an Originating Application.

The applicant claimed that there was a “doubt or question” about whether the complainant’s report and evidence was a false autobiographical memory. The complainant’s report and evidence formed the basis of the conviction. In order to enliven its power to order an inquiry, the court must be satisfied of the requirements in s 422(1) of the Crimes Act 1900 (ACT). The court held that the applicant failed to demonstrate that the doubt or question could not have been properly addressed at trial or on appeal. In circumstances where the mandatory requirement in s 422(1)(c) was not satisfied, the court dismissed the application.

Victors (a pseudonym) v DPP (No 2) [2023] ACTCA 27

CRIMINAL LAW – appeal from an interlocutory decision – where primary judge found the appellant was fit to plead – whether the primary judge approached the investigation into fitness to plead as though the appellant bore a burden of proof contrary to s 312(4) of the Crimes Act 1900 (ACT) – whether the primary judge erred in taking into account the absence of evidence from the wife of the appellant – whether evidence of the observations of legal representatives were correctly described as amounting to no more than personal opinions of lay persons – whether the primary judge failed to take into account the evidence of legal representatives concerning matters germane to the investigation – whether the primary judge gave inappropriate weight to opinion evidence from an expert witness who had not examined the accused – appeal allowed on appeal ground 3 – matter to be remitted for the investigation into the question of whether the appellant is unfit to plead to be heard by a judge of the Court

DPP v Timosevski [2024] ACTSC 85

CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence - charged and uncharged incidents - significant probative value – whether probative value of evidence outweighs danger of unfair prejudice – single complainant – presumption s97A Evidence Act

DPP v Smith [2024] ACTSC 99 (SCC 324 of 2022; SCC 292 of 2023; SCC 293 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery, theft and driving offences – offender stole car at knifepoint and drove car while disqualified and unaccompanied learner driver – offender released on Drug and Alcohol Treatment Order at time of offending – substantial criminal history – early pleas of guilty – offender sentenced to aggregate sentence of five years, six days' imprisonment – turns on own facts

The Supreme Court has sentenced an offender to five years and six days’ imprisonment with a non‑parole period of two years and two months after the offender pleaded guilty to aggravated robbery, theft, and multiple driving offences. The offender stole a car at knifepoint and then committed driving offences. The offender was on a drug and alcohol treatment order at the time of the offending, under which sentences for previous offending had been suspended. The balance of those suspended sentences must now be served by the offender. The court took into account offender’s age and prospects for rehabilitation in arriving at the appropriate sentence.

DPP v Ryan [2024] ACTSC 75

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Drug and Alcohol Treatment Order – s 80T suitability – s 80U remittals – whether there is temporal limitation to s 80U – meaning of ‘decline to make’ – Unsuitable for Drug and Alcohol Treatment Order – s 80U enlivened

The Supreme Court determined a preliminary issue as to the implications if the court was to decline to make a Drug and Alcohol Treatment Order where the offender was committed for sentence to the Supreme Court to have the Treatment Order as an available sentencing option, but where the offender was found unsuitable for the Drug and Alcohol Treatment Order for lack of appropriate accommodation under s 80T.

The Court conducted a statutory interpretation exercise as to the construction of s 80U of the Sentencing Act, and found that the application for remittal of the sentencing proceeding to the Magistrates Court is available and s 80U enlivened where the Court declines to make a Treatment Order after a determination as to suitability under s 80T. The Court further observed the practical implications of when and how a refusal to consent to the jurisdiction should be indicated to the Magistrates Court prior to proceedings being committed to the Supreme Court for the assessment of Treatment Order as a sentencing option. Noting the lack of appropriate accommodation available to the offender in this proceeding, the Court declined to make the Treatment Order under s 80T and the parties were to be heard on any application under s 80U.

R v Subasic (No 4) [2024] ACTSC 89 (SCC 261 of 2020; SCC 186 of 2021; SCC 195 of 2021; SCC 196 of 2021; SCC 299 of 2021; SCC 300 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Drug and Alcohol Treatment Order cancelled – Good Behaviour Order on resentence – breach of Good Behaviour Order – no further offences – resentence or imposition – rehabilitation – Good Behaviour Order

The Supreme Court sentenced an offender who breached the Good Behaviour Order imposed on the offender following a resentencing exercise after the cancellation of his Drug and Alcohol Treatment Order. The Court noted the breach related to the non-compliance of a condition for the supervision of the offender during the period of the Good Behaviour Order, and that the offender had otherwise engaged in rehabilitation while on the Good Behaviour Order. The Court cancelled the Good Behaviour Order and resentenced the offender to the same terms of imprisonment as in the original sentence, and suspended the sentence of imprisonment with a requirement for the offender to enter into a Good Behaviour Order until June 2027.

R v Sheather (No 3) [2024] ACTSC 86 (SCC 124 of 2021; SCC 125 of 2021)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – damage property – common assault – aggravated burglary – s 80ZE cancellation of Drug and Alcohol Treatment Order – imposition or resentence – rehabilitation – Good Behaviour Order

The Supreme Court sentenced an offender for aggravated robbery, damage property and common assault following the cancellation of the offender’s Drug and Alcohol Treatment Order in 2022. The offender was granted bail following the cancellation of the Treatment Order and made varying progress in rehabilitation during and post the cancellation of the Treatment Order, including some lapses in drug use mixed with progress in various drug and alcohol treatment programs. The Court resentenced the offender to 36 months imprisonment in total and suspended with a Good Behaviour Order with additional probation conditions for supervision.

LP9 v Council of the Law Society of the Australian Capital Territory [2024] ACTSC 116

PRACTICE & PROCEDURE – appeal from registrar – timetabling orders – where substantive proceeding involves appeal from a refusal to renew a practising certificate made under the Legal Profession Act 2006 (ACT) – where appeal involves a rehearing of the application anew – who should file evidence first

King v Bishop [2024] ACTSC 114

APPEAL – CRIMINAL LAW – Appeal against finding of guilt by magistrate – consideration of logical order for dealing with grounds of appeal – whether finding of guilt was unreasonable and cannot be supported by the evidence – whether magistrate erred in applying the Murray direction – whether Magistrate erred in admitting a document as a business record – consideration as to who bears onus of proof of any factual precondition to the application of s 69(3) of the Evidence Act – whether magistrate erred in allowing into evidence the opinions of a police officer

The Supreme Court has dismissed an appeal against conviction from the Magistrates Court. The Court held that the finding of guilt beyond reasonable doubt was open on the evidence before the magistrate.  The Court also found that there was no error in the magistrate’s decision in relation to the admission of evidence during trial and no error in the application of the Murray direction.

DPP v Austin [2023] ACTSC 185

CRIMINAL LAW – EVIDENCE – Sexual offence proceedings — Where prosecution and counsel for the accused sought to adduce evidence of previous consensual sexual activities with the accused — Where prosecution sought to adduce evidence of the complainant lack of previous sexual activity — Whether leave required under s 76 of the Evidence (Miscellaneous Provisions) Act – leave granted.

McIver v Australian Capital Territory; Williams v Australian Capital Territory [2024] ACTSC 112

CIVIL LAW – PRACTICE AND PROCEDURE – Application for extension of time to commence claim under the Human Rights Act 2004 (ACT) – where limitation period expired – consideration of proper principles to apply for extension of time in absence of mandatory considerations – whether refusal to grant extension of time constitutes summary dismissal – application of principles referred to in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

STATUTES – INTERPRETATION – Consideration of Human Rights Act 2004 (ACT) – whether compensation or damages may be awarded against a public authority under the Human Rights Act 2004 (ACT) – whether damages excluded as a remedy by s 40C(4) of the Human Rights Act 2004 (ACT) – whether s 18(7) of the Human Rights Act 2004 (ACT) provides a freestanding cause of action – meaning of ‘unlawful detention’ in s 18(7) of the Human Rights Act 2004 (ACT)

The Supreme Court has dismissed two applications for extensions of time to bring proceedings under the Human Rights Act 2006 (ACT) against the Australian Capital Territory for damages for alleged breaches of human rights at the Alexander Maconochie Centre. The Court has allowed one application to proceed limited to the seeking of declaratory relief.

In deciding the applications, the Court was required to interpret the meaning of specific sections of the Human Rights Act to decide whether damages were available for breaches of human rights. The Court considered the principles of statutory interpretation which included avoiding literalism, and instead having regard to surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole, the mischief which the statute is intended to remedy and that the literal meaning of words may be displaced in favour of a meaning which best achieves the purpose of the statute.

In addition, the Court held that the meaning of ‘unlawful detention’ in s 18(7) of the Human Rights Act referred to the authority to detain rather than the conditions of detention.

R v Celeski (No 2) [2022] ACTSC 393 (SCC 174 of 2022; SCC 175 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking in and possession of drugs - Possession of a firearm and ammunition - Possession of proceeds of crime - Breach of Good Behaviour Order - Drug and Alcohol Treatment Order made

Zhang v Rose [2024] ACTSC 113

APPEAL – PRACTICE AND PROCEDURE – Appeal from Magistrates Court – where plaintiff did not file an affidavit of service within 1 year after filing originating process – where plaintiff’s originating claim dismissed by Magistrate pursuant to r 75 of the Court Procedures Rules – whether “issued” runs from sealing or filing and stamping of a document

DPP v Dan Victors (a pseudonym) [2024] ACTSC 54

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – FITNESS TO PLEAD – where accused has cognitive impairments due to brain disease and dementia – where parties in agreement that accused unfit to plead

DPP v Donohue [2024] ACTSC 66

CRIMINAL LAW – PRACTICE AND PROCEDURE – Application by solicitor acting for the accused for leave to withdraw – where accused charged with attempted murder – where complex pre-trial application listed for hearing in the near future – complexity and seriousness of charges explained to the accused – where accused is determined to represent himself

Agnello v Maliganis Edwards Johnson [2024] ACTSC 106

PRACTICE AND PROCEDURE – EVIDENCE – Ex parte application to dispense with disclosure requirements in r 6704 Court Procedures Rules 2006 (ACT) – uncertainty in interpretation of r 6704 – not appropriate to resolve in ex parte proceedings – personal injury proceedings involving issue about plaintiff’s work capacity – material the subject of the application significant for testing plaintiff’s evidence and credibility – disclosure requirements dispensed with

The Supreme Court has granted an application to dispense with the requirements for disclosure of certain material prior to a personal injury hearing. The proceedings involve an issue about the plaintiff’s work capacity. The court determined that the material the subject of the application was significant for testing the plaintiff’s evidence and credibility.

Re application under the Parentage Act 2004 (ACT) [2024] ACTSC 72

PARENTAGE ORDER – APPLICATION – Transfer of parentage under s 26 of the Parentage Act 2004 (ACT) – where child born under surrogacy agreement

Michael Wilson & Partners Ltd v Nicholls (No 13) [2024] ACTCA 15

PRACTICE AND PROCEDURE – COSTS – Application for costs order by sixth respondent – consideration of usual rule that costs follow the event – whether conditional appearance displaces the usual rule – costs awarded in favour of sixth respondent

DPP v Kustic [2023] ACTSC 368

CRIMINAL LAW – CONFISCATION OF CRIMINAL ASSETS – Application for restraining orders – orders to restrain interest in real property – orders to restrain interest in stolen identity accounts – orders to restrain interest in property subject to the effective control of an offender – whether there are reasonable grounds for the beliefs and suspicions stated in affidavit

Novosel v The Trustee for the Steiner Family Trust [2024] ACTSC 111

CIVIL LAW – PRACTICE AND PROCEDURE – Limitation of actions – application for summary dismissal – when time begins running for claim in tort – when time begins running for claim under s 60 of the Australian Consumer Law – consideration of when damage incurred by plaintiff became ascertainable – consideration of precise interest infringed – where very high threshold not overcome – application dismissed

Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2024] ACTCA 5

APPEAL – SECURITY AND COSTS – consideration of what is reasonable to protect those who might succeed in the litigation – appellant ordered to provide security for the respondents’ costs

DPP v KS (a pseudonym) (No 3) [2023] ACTSC 352 (SCC 346 of 2022; SCC 347 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – affray – driving offences – imposition of non-conviction order where extenuating circumstances exist – automatic licence disqualification periods – imposition of nominal fines

DPP v KS (a pseudonym) (No 2) [2023] ACTSC 298 (SCC 108 of 2020; SCC 109 of 2020; SCC 110 of 2020; SCC 59 of 2022; SCC 60 of 2022; SCC 346 of 2022; SCC 347 of 2022; SCC 177 of 2023; SCC 178 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach offences – unauthorised possession of firearms – unlawful possession of stolen property – joint commission minor theft – driving without consent – unauthorised use of firearm – burglary – arson – aggravated dangerous driving – driving while disqualified – where some offences committed with co-offenders – principle of parity – where offender has strong subjective considerations – early introduction to drugs by family member – where offending stems from drug addiction – youthful offender – appropriate weight to rehabilitation

DPP v Austin (No 2) [2023] ACTSC 190

CRIMINAL LAW – EVIDENCE – Sexual offence proceedings – Where prosecution and counsel for the accused sought to adduce evidence of the complainant’s lack of previous sexual activity – leave granted

Laura Hicks (a pseudonym) v DPP (No 2) [2023] ACTCA 34

APPEAL – CRIMINAL LAW – Application for leave to appeal interlocutory decision – demurrer to indictment – whether offence of incitement to procure where the offence incited is not carried out is an offence known to law

STATUTES – STATUTORY INTERPRETATION – effect of ss 45 and 47 of the Criminal Code 2002 (ACT) – extrinsic material – where clear intention of Parliament to overcome the decision in Holliday v The Queen [2016] ACTCA 42 – whether legislative amendments achieved intended purpose – appeal dismissed

In the Estate of Noel Joseph Edmund Thompson [2024] ACTSC 110

WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A – where handwritten amendments to a valid will not witnessed but signed and dated by deceased – relief granted.

R v Casey Georgeson (a pseudonym) [2023] ACTSC 354

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – non-publication orders – application to continue non-publication order under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – where accused is to participate in reverse caution interview – whether non-publication order is required for administration of justice – consent of both parties to making of order – non-publication order continued.

Caruso v Newington Road Developments Pty Ltd (No 2) [2024] ACTSC 108

CIVIL LAW – PRACTICE AND PROCEDURE – Costs – Calderbank offer – whether offer was a genuine offer – whether it was unreasonable to reject the offer – where plaintiff rejected offer to settle

The Supreme Court has awarded costs in favour of the defendant. The Court previously found in the defendant’s favour, dismissing the plaintiff’s claim for breach of contract. The Court found that the defendant’s offer to settle was a valid Calderbank offer. The offer was genuine and it was unreasonable for the plaintiff to reject the offer. The Court ordered the costs order to be varied to be more favourable to the defendant.

DPP v Myers (a pseudonym) (No 5) [2024] ACTSC 109 (SCC 61 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Order – breach by commission of several further offences – young offender – disadvantaged background – young person already sentenced for new offences constituting breach – 12 month Good Behaviour Order imposed.

Australian Secure Capital Fund Ltd v Haider (No 2) [2024] ACTSC 103

PROPERTY – MORTGAGE – Action for recovery of land – where defendants defaulted in payment of loan – whether memorandum of mortgage contained accurate statement of interest intended to be mortgaged – where defendants acknowledged receipt of memorandum – lack of evidence to support grounds of defence – application for possession granted

LB Business Pty Ltd v Feng [2024] ACTSC 102

CIVIL LAW – PRACTICE AND PROCEDURE – Application for order relating to payment to be stayed pending the determination of separate proceedings – whether application seeks stay of orders or freezing order – consideration of Court’s power to make freezing order – consideration of legal principles applying to freezing orders – enforcement of orders stayed pending further order

DPP v Mastalerz [2024] ACTSC 30

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Tendency evidence – application to admit tendency evidence of prior violence and coercion in relationship – cross-admissibility of evidence of charged incidents – evidence of 23 uncharged incidents – whether evidence of physical family violence is capable of having significant probative value in support of allegations of sexual assault – tendency to be violent to exert control not sufficiently probative in case of negated consent on the basis of recklessness as to consent – evidence not admissible as tendency evidence.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Relationship and context evidence – relevance of physical violence as forming a “pattern of behaviour” – whether evidence should be excluded on the basis of the volume of the prior allegations – evidence of incidents contained in complainant’s Evidence in Chief Interview admissible as relationship/context evidence under s 74A of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – not appropriate to make a ruling on incidents not currently the subject of an Evidence in Chief Interview.

The Supreme Court has ruled that evidence of prior violence and coercion in a relationship was not admissible as tendency evidence in support of charges of sexual assault, but was admissible as relationship/context evidence. The accused was charged with several sexual assault and family violence offences.

DPP v Campbell (No 2) [2024] ACTSC 105 (SCC 235 of 2022 ; SCC 236 of 2022 ; SCC 238 of 2022 ; SCC 279 of 2022)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Sentence –  attempted aggravated robbery – assault occasioning actual bodily harm – damage property – possess offensive weapon with intent to use – two counts of aggravated robbery – significant criminal history – some prospects of rehabilitation – where offender has a significantly disadvantaged childhood, trauma and mental ill-health – Bugmy and Verdins considerations – parity – existing sentence of imprisonment – resetting of non-parole period – sentence of imprisonment imposed

The Supreme Court has sentenced an offender to 3 years of imprisonment for attempted aggravated robbery, to 18 months for assault occasioning actual bodily harm, 6 months for damage property, 4 months for possessing offensive weapon with intent, 4 years and 3 imprisonment for a count of aggravated robbery, and 4 years and 3 months for another count of aggravated robbery. The offender was serving an existing sentence of imprisonment. The Court re-set the non-parole period, to a period of 6 years and 2 months commencing from the start of the existing sentence.

Alrifai v ACT [2024] ACTCA 13

APPEAL – Medical negligence – allegation of delayed diagnosis of pancreatic cancer – where hospital admitted a failure to exercise reasonable care and skill consisting in the failure of treating clinicians to obtain a surgical opinion at a particular point in time – where all other allegations of negligence rejected by primary judge – whether primary judge erred in declining to find the admitted breach caused the injuries alleged

The Court of Appeal has unanimously dismissed an appeal from a single judge of the Supreme Court. The appellant claimed damages for alleged medical negligence arising from perceived delay in the diagnosis of pancreatic cancer during the appellant’s treatment at Canberra Hospital.

The Court held that there was no error on the part of the primary judge in finding, based on the evidence before the court, that the appellant would not have undergone surgery at an earlier date but for the negligence identified.

DPP v Weaver [2024] ACTSC 101 (SCC 272 of 2023; SCC 273 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manslaughter by unlawful and dangerous act – offender injected victim with heroin at her request – offender was aware victim had serious medical conditions – offender’s moral culpability reduced by reason of his mental illnesses and cognitive disability – need for recognition of harm caused and for general and specific deterrence – reasonable prospects of rehabilitation - no comparative cases - whether a lower discount for a guilty plea should be imposed because the case against the offender was overwhelming - prosecution case only overwhelming because of offender's early and frank admissions to investigating authorities.

The Supreme Court has sentenced an offender for one count of manslaughter and one count of administering a declared substance to another person without authorisation. The offender injected the victim with heroin at her request. The offender was aware the victim had serious medical issues when he injected her. The Court found there should be some reduction of the offender’s moral culpability by reason of his mental illnesses and cognitive disability. The Court imposed a total sentence of imprisonment of 4 years 1 month and 15 days with a non-parole period of 2 years and 24 days.

DPP v Librando [2024] ACTSC 100 (SCC 290 of 2023; SCC 291 of 2023)

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – obtain financial advantage by deception – offender defrauded aged care facility and three residents – Bugmy considerations – reduced moral culpability – Intensive Corrections Order imposed.

The Supreme Court has sentenced an offender for one count of obtaining property by deception, two counts of theft, and one count of minor theft. The offender defrauded the aged care home at which she worked, and three of its residents. The Court took into account the seriousness of the offences, as well as the offender’s deprived background and mental illnesses. The Court imposed a total sentence of 3 years’ imprisonment, to be served by way of an Intensive Corrections Order.

Poidevin v Coutts [2024] ACTSC 91

CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal against conviction – whether finding of guilt was unreasonable or could not have been supported having regard to the evidence – whether there was error in finding the appellant guilty of the statutory alternative charge – whether the Magistrate’s reasons were inadequate – each ground not established – appeal dismissed

The Supreme Court has dismissed an appeal against conviction from the Magistrates Court. The grounds of appeal were that the finding of guilt was unreasonable or could not have been supported having regard to the evidence, that the Magistrate erred in finding the appellant guilty of a statutory alternative to an offence when reliance upon it was not indicated by the prosecution and that the Magistrate’s reasons were inadequate. The Court found that each ground was not established and that the appeal must be dismissed.

Agarwal v Coutts (No 2) [2024] ACTSC 92

APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  Appeal against sentence imposed by Magistrates Court – act of indecency against a person aged under 16 years – victim was the appellant’s employee – rolled up charges – whether Magistrate erred in the form of imprisonment imposed – nature of ex tempore reasons – no error established – whether offending was deliberate and planned – whether appellant had only demonstrated limited remorse – use of comparative cases – single comparative case – key difference with comparative case – new evidence regarding appellant’s health not admissible – appeal dismissed.

The Supreme Court has dismissed an appeal against a sentence of 21 months’ imprisonment imposed by the Magistrates Court for an act of indecency against a person under 16. The Court found the Magistrate did not err in imposing full-time imprisonment rather than a partially-suspended sentence or ICO. Bearing in mind the ex tempore nature of the reasons, error was not demonstrated. The sentence imposed was not manifestly excessive. The Court declined to admit new evidence relating to the appellant’s health.

Brown v Fulham [2024] ACTSC 90

APPEAL – CRIMINAL LAW – Appeal against conviction for two charges of common assault – whether the Magistrate erred by failing to direct himself in accordance with s 89 of the Evidence Act 2011 (ACT) – whether the Magistrate erred by making factual findings not open to him – whether the appellant was denied procedural fairness – held that material legal and factual error had affected the findings of guilty – appeal allowed – findings of guilt set aside – findings of not guilty entered

The Supreme Court has allowed an appeal against a conviction on two charges of common assault occurring in a family violence context in the Magistrates Court. The Court found that the appellant established that material legal and factual errors had affected the Magistrate’s decision in finding the appellant guilty, and set aside the finding of guilt, entering findings of not guilty on both charges.

R v Folauhola (No 2) [2024] ACTSC 87

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – breach of intensive correction order – where breach was relatively less serious and majority of term had been served without incident – not in the interests of justice to cancel the intensive correction order

The Supreme Court has published reasons for orders made earlier this week where a breach of an Intensive Correction Order (ICO) was noted with no order made to cancel it.

The breach involved the offender driving a motor vehicle on a suspended license. The offender pleaded guilty to this offence and a non-conviction order was made in the Magistrates Court.

The Court held it would not be in the interests of justice to cancel the ICO, because a significant proportion of the ICO had been served by the time the finding of guilt in relation to the driving offence was made and the breach was of significantly less seriousness (confirmed by the lenient sentence in the form of a non-conviction order) and was not of the same nature as the offending that was the subject of the ICO.

Manny v David Lardner Lawyers (No 4) [2024] ACTCA 12

APPEAL – PRACTICE AND PROCEDURE – Whether the primary judge should have recused herself – appellant has not demonstrated a basis for apprehended bias – appellant has not demonstrated a lack of procedural fairness – recusal unnecessary – appeal dismissed

APPEAL – CIVIL LAW – Whether rejection of the appellant’s claims in tort, contract, and equity at first instance was correct in law – no error established – primary decision upheld – no breach of duty of care – no economic loss found – advocate immunity applied – no breach of solicitor retainer – no breach of fiduciary obligations – claims precluded by s 153(1) of the Bankruptcy Act 1966 (Cth) – claims not provable in bankruptcy under s 82(2) of the Bankruptcy Act 1966 (Cth) – claims time-barred by s 11(1) of the Limitation Act 1985 (ACT) – respondents were not retained in Family Court proceedings to act for the fifth appellant – appeal dismissed

The Court of Appeal has dismissed an appeal from the judgment of Murrell CJ in Manny v David Lardner Lawyers (No 2) [2021] ACTSC 289, which had dismissed claims brought against solicitors in professional negligence, contract, and equity.  The Court of Appeal found no substance in any of the grounds of apprehended bias, denial of procedural fairness or legal or factual error.

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

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

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

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

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

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

Elvin v Vuleta [2024] ACTSC 84

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

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

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

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

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

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

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

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

DPP v Vidanaralalage [2024] ACTSC 61

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Agarwal v Coutts [2024] ACTSC 71

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

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

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

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

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

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

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

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

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

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

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

Deng v Australian Capital Territory [2024] ACTCA 10

Judgment summary

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

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

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

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

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

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

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

The appeal was unanimously dismissed.

Porter v The Queen [2024] ACTCA 9

Judgment summary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bourke v Styche [2024] ACTSC 62

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

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

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

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

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

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

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

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

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

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

DPP v Weldon (No 2) [2024] ACTSC 60

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

KQE v DPP [2024] ACTCA 7

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May v Commonwealth [2024] ACTCA 6

Judgment summary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alvarez v Girvan [2024] ACTSC 53

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

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

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

Connelly v Hayes [2024] ACTSC 26

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

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

Van Eyle v McFarlane [2024] ACTSC 50

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

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

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

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

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

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

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

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

Calatzis v Jones [2024] ACTSC 42

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

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

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

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

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

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

McCurley v Stirling [2024] ACTSC 41

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

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

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

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

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

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

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

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

Henderson v The King [2024] ACTCA 3

Judgment summary

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

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

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

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

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

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

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

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

APPEAL – Costs – Orders Made By Consent

Director of Public Prosecutions v Padreny [2024] ACTCA 4

Judgment summary

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

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

Uploaded

16 February 2024

Golding v Primavera Holdings Pty Ltd [2024] ACTSC 29

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DPP v Mapiou [2024] ACTSC 7

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

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

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

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

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

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

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

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

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

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

Norman v Jones [2024] ACTSC 11

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Inglis v Adamson [2024] ACTSC 4

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

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

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

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

Krutsky v McCormick [2024] ACTSC 3

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

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

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

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

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

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

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

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

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

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

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

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

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

TS v UG [2023] ACTSC 389

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

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

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

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

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

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

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

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

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

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

Dankers v Volunteer Maritime Rescue NSW [2023] ACTSC 395

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alexander v Bakes [2023] ACTCA 49

Judgment summary

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

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

DPP v Krutsky [2023] ACTSC 402

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

Fihelly v Bluett [2023] ACTSC 393

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

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

Hartfield v Calvary Healthcare ACT Ltd [2023] ACTSC 401

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

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

McIver v The King [2023] ACTCA 48

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tattersall v Dormakaba Australia Pty Ltd [2023] ACTSC 390

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

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

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

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

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

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

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

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

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