New Judgments and Sentences


Recent Court of Appeal, Supreme Court judgments and sentences:

R v Eastman (No 6) [2015] ACTSC 377
Uploaded 20 February 2019
Practice and procedure - Evidence - Seven categories of evidence - Whether Court should consider application that evidence be ruled inadmissible before hearing and determining stay application - application granted in part, otherwise dismissed.

R v Collins (No 2) [2018] ACTSC 294 (SCC 280A of 2017; SCC 280B of 2017)
Uploaded 20 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – knowingly concerned in aggravated robbery – aggravated robbery with knife – significant criminal history – whether deferred sentence available when offender serving a suspended sentence – deferred sentence not appropriate in the circumstances – reparation order – custodial sentence

R v Eastman (No 5) [2015] ACTSC 376
Uploaded 18 February 2019
Practice and procedure - Evidence - Tendency and coincidence evidence - Application for ruling that evidence inadmissible as tendency and coincidence evidence - Whether application should be heard before hearing and determination of permanent stay application

R v TL [2018] ACTSC 369 (SCC 246 of 2014; SCC 247 of 2014; SCC 248 of 2014; SCC 221 of 2015; SCC 240 of 2015; SCC 241 of 2015)
Uploaded 18 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Orders – re-sentence

R v Krsteska [2018] ACTSC 353 (SCC 285 of 2014)
Uploaded 18 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – committed a further offence after having been placed on a suspended sentence – whether to impose suspended sentence or re-sentence

R v Carpenter [2018] ACTSC 356 (SCC 42 of 2018)
Uploaded 18 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery by way of joint commission – plea of guilty – plea at late stage – involvement significantly less than co-offender

R v Gillett [2019] ACTSC 30 (SCC 171 of 2018)
Uploaded 15 February 2019
CRIMINAL LAW –  JURISDICTION, PRACTICE AND PROCEDURE –  Judgment and Punishment –  Sentence –  abuse of public office –  Commonwealth offence –  early plea of guilty –  excellent prospects of rehabilitation –  prior good character – remorse – undertaking to provide further assistance to overseas law enforcement authorities –  intensive corrections order

Atherden v Caldipp [2019] ACTSC 29
Uploaded 15 February 2019
TORTS – NEGLIGENCE – Contributory Negligence – employee injured while participating in dangerous activity devised by supervisor – whether employee should have refused to participate – whether employee was “on a frolic of his own” or acting in employer’s interests – no contributory negligence found.
DAMAGES – Measure and Remoteness of Damages in Actions for Tort – calculation of loss of income – whether tax paid is to be deducted from taxable income or from gross income – not all tax deductions are necessarily incurred in earning income – only non-discretionary deductible expenses may be deducted from gross income.
EVIDENCE - Admissibility and Relevancy – claimed admission against interest – claimed admission contained in document possibly involving second-hand hearsay – no attempt to establish source of claimed admission – evidence excluded.

Naoumidis v Robens [2018] ACTSC 365
Uploaded 14 February 2019
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – whether Magistrate fell into error by failing to provide reasons for decision not to sentence with a non-conviction order

Campbell v Blackshaw [2019] ACTCA 1
Uploaded 14 February 2019
CIVIL LAW – APPEAL AND NEW TRIAL – Practice and procedure – leave to appeal – appeal against decision refusing to grant leave to appeal decision of ACT Civil and Administrative Tribunal – dispute between neighbours – nuisance caused by trees – application for leave to appeal out of time – failure to properly explain delay – limited merit in grounds of appeal – extension of time to appeal not granted – common boundary dispute – consideration of proposed grounds of appeal – leave to appeal not granted

Fischetti v The Queen [2019] ACTCA 2
Uploaded 14 February 2019
APPEAL – CRIMINAL LAW – Conviction and sentence appeal from ACT Supreme Court – whether primary judge erred in dismissing applications by accused to discharge the jury – whether primary judge erred in admitting tendency evidence and fresh evidence – whether sentence too severe – whether primary judge erred in considering totality – held: appeals dismissed

R v QN [2018] ACTSC 363 (SCC 327 of 2008 ; SCA 28 of 2018)
Uploaded 12 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – further offending – intensive corrections order
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether magistrate had jurisdiction to order an intensive corrections order when offender serving a suspended sentence – appeal upheld

Muench v McCue [2019] ACTSC 20
Uploaded 12 February 2019
CRIMINAL LAW – APPEAL – Appeal against conviction of offence of attempting to capture visual data in circumstances of indecency or invasion of privacy – where conduct occurred between two change room cubicles and identity was in issue – whether magistrate erred in findings made concerning sound in change room cubicles – whether denial of procedural fairness – whether verdict unreasonable or unsupported by the evidence

R v Richards [2018] ACTSC 339 (SCC 201 of 2018)
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – two statutory circumstances of aggravation – objective seriousness – commenced drug use at a very early age – subjective features – plea of guilty – remorse – general deterrence – specific deterrence – rehabilitation – breach of Good Behaviour Orders – sentence of imprisonment imposed – shorter than usual non-parole period

R v Srna [2018] ACTSC 337 (SCC 123 of 2017; SCC 124 of 2017)
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a trafficable quantity of cannabis – additional offences – plea of guilty – subjective circumstances – objective seriousness – consideration – intensive correction order assessment – not bound by an assessment of unsuitability – reasons given – Crimes (Sentencing) Act 2005 (ACT) s 46D – sentence to be served by way of an intensive correction order

R v Kisun [2016] ACTSC 212
Uploaded 11 February 2019
CRIMINAL LAW – EVIDENCE – Tendency evidence – whether tendency incidents relating to complainant’s brother can be led – where tendency incidents and charged acts similar – where contamination or concoction alleged – cross-admissibility of tendency evidence

R v Massey; R v Ontong; R v Ceissman [2018] ACTSC 352 (SCC 198 of 2017; SCC 199 of 2017; SCC 200 of 2017; SCC 219 of 2017; SCC 282 of 2017; SCC 296 of 2017)
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint indictment – not strictly co-offenders – pleas of guilty – offenders sentenced separately – parity does not strictly arise but consideration given – received stolen property – dishonestly drove a motor vehicle belonging to someone else – additional offences taken into account

Zonneveld v The Queen (No 2) [2018] ACTCA 31
Uploaded 11 February 2019
APPEAL – GENERAL PRINCIPLES – Conditional stay of proceedings subject to payment of costs – unfairness to the accused

R v Peter [2018] ACTSC 312
Uploaded 11 February 2019
EVIDENCE – ADMISSIBILITY – search warrant – section 138 of Evidence Act 2011 (ACT) – whether section 203 of the Crimes Act 1900 (ACT) was complied with – whether the evidence was obtained improperly – whether discretion should be exercised – significant probative value of evidence – application to exclude evidence dismissed

R v Carberry [2018] ACTSC 341 (SCC 299 of 2017; SCC 300 of 2017)
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – making a demand accompanied by threats – minor theft – three offences of common assault – objective seriousness – psychiatric diagnoses relevant to mental functioning – number of ways in which impaired mental functioning at the time of offending may reduce an offender’s moral culpability – moral culpability for these offences is somewhat reduced – demonstrated remorse – therapeutic community program – literacy program –  pleas of guilty – terms of imprisonment imposed – encouraging circumstances – non parole period – recommendation to Sentence Administration Board

R v Williams [2018] ACTSC 354 (SCC 126 of 2018; SCC 133 of 2018)
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful confinement – threat to kill – offence of inflicting actual bodily harm – two counts of common assault – aggravated dangerous driving – objective seriousness – criminal history – intensive corrections order assessment – likelihood of deportation – imminent deportation is a factor which bears upon the likelihood of being able to comply with the terms of an intensive corrections order – pleas of guilty – terms of imprisonment imposed

R v Tang [2019] ACTSC 4
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – Circumstantial Case – verdict – accused found not guilty of culpable driving causing grievous bodily harm

R v Miller [2019] ACTSC 18 (SCC 202 of 2018; SCC 203 of 2018)
Uploaded 11 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse without consent – offences against sex workers – common assault

R v Nicholas; R v Palmer [2019] ACTSC 16 (SCC 333 of 2017; SCC 336 of 2017; SCC 33 of 2017; SCC 34 of 2017)
Uploaded 8 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – joint commission

Dordevic v Moore [2019] ACTSC 17
Uploaded 8 February 2019
PROCEDURE – Costs – costs of application – application by plaintiff to be authorised to proceed with claim despite non-compliance with notice requirements – whether costs of that application be costs in the cause – parties invited to file written submissions – whether there was fault on both sides

R v Lee [2019] ACTSC 14 (SCC 29A of 2017; SCC 29B of 2017; SCC 30 of 2017)
Uploaded 8 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with person under 16 years – bestiality – assault occasioning actual bodily harm – use carriage service to distribute child pornography – use child to produce child pornography – common assault

United Cinemas Australia Pty Limited v Gungahlin Lifestyle Pty Ltd [2018] ACTSC 362
Uploaded 8 February 2019
PRACTICE AND PROCEDURE- Application to set aside subpoenas- whether the Court is bound to determine the applications to set aside the subpoenas at first instance- abuse of process- fishing- narrowing of the documents- whether documents which are sought pursuant to those subpoenas are subject to any form of privilege- usual order for costs

R v Hoyle [2017] ACTSC 24
Uploaded 8 February 2019
CRIMINAL LAW – EVIDENCE – similar facts – judicial discretion to admit or exclude evidence – pre-trial application to rely upon tendency evidence – pre-trial application for separate trials.

R v Roberts [2017] ACTSC 75
Uploaded 8 February 2018
CRIMINAL LAW – EVIDENCE – Tendency evidence – where accused alleged to have admitted to a tendency related to knife possession and use – whether evidence of the asserted tendency can be led – questions to be considered in tendency application – unfair prejudice in judge alone trial

R v Carberry [2018] ACTSC 83
Uploaded 8 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – evidence – whether previous representations should be admitted – whether representations made in circumstances that make them unlikely to be a fabrication – whether representations made in circumstances that make it highly probable that they are reliable

R v Zonneveld [2018] ACTSC 97
Uploaded 8 February 2019
CRIMINAL LAW – PRE-TRIAL APPLICATION – application to stay criminal trial until costs of accused are paid – whether stay application should be granted – unfairness to applicant

R v Roberts [2018] ACTSC 250 (SCC 270 of 2016; SCC 12 of 2017; SCC 13 of 2017; SCC 23 of 2018)
Uploaded 7 February 2019
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - numerous offences - attempting to escape from lawful custody - resisting a territory official in the exercise of their function - aggravated robbery - two offences of escaping from lawful custody - two offences of common assault - possessing an offensive weapon in a public place - dishonestly driving a motor vehicle without consent - driving in a way dangerous in circumstances of aggregation - failing to comply with a request of a police officer stop as a first offender - two offences of arson - criminal history - Pre-Sentence Report - CADAS Assessment - report from consultant psychiatrist - objective seriousness - age - rehabilitation - general deterrence - specific deterrence - shorter than usual non-parole period - recommendation to Sentence Administrate Board - guilty pleas

R v Watson [2018] ACTSC 357 (SCC 285 of 2016)
Uploaded 7 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Order – re-sentence

R v Hodge [2019] ACTSC 15 (SCC 287 of 2018)
Uploaded 7 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Arson – Dishonestly take motor vehicle without consent – Fail to stop motor vehicle when requested by police

Corby v Bendigo and Adelaide Bank Limited [2019] ACTSC 3
Uploaded 7 February 2019
PRACTICE & PROCEDURE – applications – application seeking stay of enforcement proceedings – where applicant has established prospect of forthcoming payment and hardship but evidence is insufficient to consider extended stay or instalment order – interim stay ordered

R v DL [2018] ACTSC 28
Uploaded 7 February 2019
CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – Application to adduce tendency evidence – charged and uncharged acts

R v Watson [2018] ACTSC 357 (SCC 285 of 2016)
Uploaded 7 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Order – re-sentence

Field v Unas [2019] ACTSC 13
Uploaded 7 February 2019
CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – Whether adequate reasons given for sentence involving a period of full-time imprisonment.

R v DL [2018] ACTCA 9
Uploaded 7 February 2019
APPEAL – GENERAL PRINCIPLES – Application for leave to appeal from interlocutory orders – tendency evidence

R v Erntner [2018] ACTSC 335
Uploaded 6 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in controlled drug other than cannabis – trafficking in cannabis – plea of guilty – longstanding problem with drug addiction – suitability for an intensive corrections order

R v KN [2018] ACTSC 262
Uploaded 6 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – sexual offences – multiple complainants

R v Richardson [2019] ACTSC 9 (SCC 281 of 2018)
Uploaded 5 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Arson building/vehicle

R v Beattie [2019] ACTSC 12 (SCC 59 of 2018)
Uploaded 5 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempt aggravated robbery – drive motor vehicle without consent

R v Crawford [2019] ACTSC 8 (SCC 303 of 2018)
Uploaded 5 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm

R v Summers; R v Miller (No 2) [2019] ACTSC 11 (SCC 138 of 2018; SCC 141 of 2018)
Uploaded 5 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawfully take a child under 12 years of age – Joint commission – Attempt to pervert course of justice

Sampson v The Queen [2018] ACTCA 67
Uploaded 4 February 2019
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifest excess – principles of totality

R v Hawkins [2019] ACTSC 10 (SCC 150A of 2018)
Uploaded 4 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – Obtain property by deception – Ride in motor vehicle without consent – Objective seriousness of the offences – Where the offender has lengthy criminal history – Where there is some prospect of rehabilitation

Marhaba v Marshall [2018] ACTSC 334
Uploaded 1 February 2019
CRIMINAL LAW – Magistrates Court Appeal – extent to which self-defence was raised in the proceedings before the magistrate – whether the magistrate provided appropriate assistance to the appellant in determining whether she should give evidence – prior inconsistent statement – magistrate did not give any reasons for rejecting the version of events given in statement to the police – appeal upheld

R v KN (No 2) [2019] ACTSC 5 (SCC 58 of 2018)
Uploaded 31 January 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – maintaining a sexual relationship with a young person

Arcidiacono v Commissioner for ACT Revenue; Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue (No 2) [2018] ACTCA 69
Uploaded 31 January 2019
ADMINISTRATIVE LAW – review of decision to issue garnishee notices and director compliance notices for the enforcement of payroll tax liabilities – collateral challenge to validity of assessment of liability – whether assessment affected by conscious maladministration – primary judge declining review and withholding relief in the exercise of discretion – whether discretion miscarried
TAXES AND DUTIES – enforcement of payroll tax liability – garnishee notices issued to all known creditors of taxpayer group – whether garnishee notices had effect of rendering corporate entities in the group insolvent – whether decision to issue garnishee notices was legally unreasonable
TAXES AND DUTIES – enforcement of payroll tax liability – compliance notices issued to directors of corporate entities in taxpayer group – whether notice issued for improper purpose of frustrating pending legal proceedings – whether decision to issue the notice was legally unreasonable

Southwell v Staite [2019] ACTSC 2
Uploaded 30 January 2019
FAMILY PROVISION – whether extension of time should be granted – where 19-month delay – whether adequate provision for the proper maintenance, education or advancement in the plaintiff’s life is available under the will – where the circumstances include a modest estate, the testator’s apparent intention was for equality among beneficiaries, and the plaintiff receiving an extra $10,000 under the will – claim dismissed
WILLS – whether executors paid the plaintiff her full entitlement in accordance with the contents of the will – where executors entered into subsequent agreement with plaintiff as to specific amount – whether amount equates to entitlement under the will – application allowed

McLennan v Clapham & Ors [2019] ACTSC 1
Uploaded 30 January 2019
PROFESSIONAL NEGLIGENCE – solicitors’ failure to advise in relation to contract for sale of land – whether breach of duty caused loss claimed by plaintiffs – where plaintiffs subsequently substantially mitigated their loss
CONTRACT – breach of retainer – whether solicitors’ failure to advise caused loss claimed by plaintiffs
TRADE PRACTICES – misleading and deceptive conduct – whether representation made by silence

R v Vu [2018] ACTSC 359 (SCC 224 of 2017; SCC 225 of 2017)
Uploaded 21 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentional wounding –  plea of guilty – low range objective seriousness – no criminal history – low risk of re-offending – intensive corrections order

Fallon v Baker [2018] ACTSC 319
Uploaded 20 December 2018
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – conviction for common assault – domestic violence context – good behaviour order imposed – whether sentence imposed manifestly excessive – whether magistrate failed to take into account or give proper weight to the subjective circumstances of the appellant – application to adduce further evidence relating to events post-conviction – appeal grounds not made out – application to adduce further evidence refused – appeal dismissed – conviction confirmed

Clifton v Duong [2018] ACTSC 346
Uploaded 20 December 2018
APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against finding of guilt – appeal dismissed

R v Vincent [2018] ACTSC 347 (SCC 100 of 2018; SCC 102 of 2018; SCC 103 of 2018)
Uploaded 19 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – common assault – damaging property

R v MC [2018] ACTSC 350
Uploaded 19 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency without consent – act of indecency in the third degree

R v Johnstone [2018] ACTSC 316
Uploaded 19 December 2018
CRIMINAL LAW – common assault during aggravated robbery – determined by judge as related charge following jury trial – accused guilty of common assault

Hawkins v Stuart [2018] ACTSC 349
Uploaded 18 December 2018
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – manifest excess

Spence v Neilson (No 2) [2018] ACTSC 344
Uploaded 18 December 2018
COSTS – Application for special costs order – Offer of compromise – Calderbank offer – Court Procedures Rules 2006 (ACT), r 1012 – whether defendant is entitled to a special costs order – defendant entitled to costs order consistent with r 1012 – no order as to costs of application for costs where defendant’s claim was unrealistic

Chen v Ghildyal [2018] ACTCA 52
Uploaded 18 December 2018
APPEAL – PRACTICE AND PROCEDURE – In General and Right of Appeal – Application for leave to appeal from interlocutory judgment – Costs – Costs of an Injunction – Principle of uberrima fides – Whether adequate weight given to principle of uberrima fides – Whether injunction improperly obtained – No error by primary judge – Appeal dismissed

Legal Practitioner v Law Society of the Australian Capital Territory [2018] ACTSC 351
Uploaded 17 December 2018
COURTS AND JUDICIAL SYSTEM – BIAS AND RECUSAL – Bias of individual judges – Bias on an institutional basis – Whether relationship between the Court and the Law Society creates apprehended bias
LEGAL PROFESSION – DISCIPLINARY PROCEEDINGS – When the Law Society commenced proceeding to remove the practitioner from the local roll – When the proceeding commenced before finalisation of appeals against the ACAT’s findings – Whether the proceeding was validly instituted
LEGAL PROFESSION – DISCIPLINARY PROCEEDINGS – Disclosure of identity of the practitioner – Section 423A of Legal Profession Act 2006 (ACT)

R v Castles [2018] ACTSC 358 (SCC 136 of 2018)
Uploaded 17 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing grievous bodily harm – when offender under the influence of alcohol – sentencing purposes - adequate punishment – general deterrence – accountability – denunciation – recognition of harm – whether full-time imprisonment would cause the offender hardship

R v Mazaydeh [2018] ACTSC 308 (SCC 348 of 2017)
Uploaded 17 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – possession of drug of dependence, namely cocaine, for sale or supply to another person – plea of guilty – negligible criminal history – young offender with a good work history – well connected to family and the community – low risk of reoffending – positive prospects of living a law-abiding life – good behaviour order with a community service condition and a fine impose

The Queen v Avery [2018] ACTCA 57
Uploaded 17 December 2018
APPEAL – CRIMINAL LAW – Crown appeal against sentence – unlawful confinement – demands accompanied by threats – trafficking in a controlled drug other than cannabis – unlawful possession of stolen property – possessing cannabis – whether sentence for unlawful confinement was manifestly inadequate – co-offenders – parity principle – general deterrence for vigilante justice – sentence for unlawful confinement manifestly inadequate – appeal allowed – offender resentenced

Haides Pty Ltd v Canberra Drilling Rigs Pty Ltd [2018] ACTCA 68
Uploaded 17 December 2018
PRACTICE AND PROCEDURE – SECURITY OF COSTS – Corporate appellant – whether impecunious – whether security of costs should be ordered – appropriate amount of security

Mi v Li [2018] ACTCA 66
Uploaded 14 December 2018
APPEAL – ARBITRATION – Appeal against primary judgment – appeal against enforcement of Interim Arbitral Award – whether the primary judge erred by mischaracterising appellant’s case – whether the primary judge erred by finding that Anshun estoppel applied to the appellant – whether the primary judge erred in her application of rule 3254 of the Court Procedures Rules 2006 (ACT) – appeal dismissed

Rawsthorne v Wilson [2018] ACTSC 342
Uploaded 14 December 2018
APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against conviction – self-defence – escaping unlawful confinement  – whether verdict unsafe and unsatisfactory – appeal allowed

Greenwood v Barlee [2018] ACTCA 62
Uploaded 14 December 2018
APPEAL – CRIMINAL LAW – Appeal from ACT Supreme Court – primary judge dismissed an appeal from a conviction recorded against appellant in the Magistrates Court – offence of assault occasioning actual bodily harm – proceedings before primary judge – present appeal – whether appellant demonstrated error by primary judge in present appeal

ED v The Queen [2018] ACTCA 65
Uploaded 11 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a stay of sentence – application for Bail

R v UG [2018] ACTCA 64
Uploaded 11 December 2018
APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – whether sentences manifestly inadequate
APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – principle in R v Ellis (1986) 6 NSWLR 603 – whether the sentencing judge erred by applying the Ellis principle rather than ss 36 and 37 of the Crimes (Sentencing) Act 2005 (ACT).
APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – victim impact statements – where the offence does not include an element relating to the victim’s injury – proper consideration of the harm suffered by the victim.
APPEAL – CRIMINAL LAW – APPEAL AGAINST SENTENCE – proper calculation of sentence terms for multiple offences – O’Brien v The Queen [2015] ACTCA 47 – principle of totality.

R v QG [2018] ACTSC 343 (SCC 251A of 2017; SCC 251B of 2017)
Uploaded 11 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by jury – guilty verdicts – guilty plea – assault occasioning actual bodily harm – sexual intercourse without consent – sexual assault in the third degree – common assault

ACT Director of Public Prosecutions v Trewin [2018] ACTSC 340
Uploaded 7 December 2018
CONFISCATION OF CRIMINAL ASSETS – appeal from registrar’s decision declaring interest in real property forfeited – where automatic forfeiture of restrained property on conviction for serious offences – where no application for exclusion order made within 14 days – whether registrable property was subject to forfeiture or forfeited – appeal dismissed

The Director of Public Prosecutions v DL [2018] ACTCA 61
Uploaded 6 December 2018
CRIMINAL LAW – REFERENCE APPEAL – statutory interpretation – interpretation of s 101(2) of the Evidence Act 2011 (ACT) – meaning of “prejudicial effect” – whether it is permissible to consider the effect that the use of the tendency evidence against the defendant in a proceeding may have on the defendant in other proceedings when determining whether the probative value of the tendency evidence “substantially outweighs any prejudicial effect it may have on the defendant” – it is not permissible to consider the effect that the use of the tendency evidence against the defendant in a proceeding may have on the defendant in other proceedings

Canberra Greyhound Racing Club Inc v Planning and Land Authority of the Australian Capital Territory [2018] ACTCA 54
Uploaded 6 December 2018
APPEAL – ADMINISTRATIVE LAW – Appeal against primary judge’s dismissal of an application seeking a writ of mandamus to compel the respondent to grant the appellant a further Crown lease  under s 254 of the Planning and Development Act 2007 (ACT)  – whether primary judge took irrelevant considerations into account – she did not – whether primary judge erred in finding there was no utility in granting the relief sought – she did not – appeal dismissed with costs

The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60
Uploaded 6 December 2018
ADMINISTRATIVE LAW – JUDICIAL REVIEW – Whether ACAT fell into error – Whether allegations against the practitioner vague, uncertain and ambiguous – Whether ambiguity in the evidence amount to latent duplicity – Whether prerogative remedies were available – Whether error by the primary judge concerning the agreement alleged by the Society – Whether the Court should dispose of the matter by determining the application for judicial review on the grounds specified before the primary judge LEGAL PRACTITIONERS – DISCIPLINARY PROCEEDING – Where the practitioner made a no case submission – Whether the ACAT is obliged to entertain a no case submission – Whether judicial review of an interlocutory ruling by the ACAT is appropriate – Courts should be exceptionally reticent to interfere in legal practitioner disciplinary proceedings before the ACAT

R v Kelly [2018] ACTSC 332
Uploaded 6 December 2018
CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – culpable driving causing grievous bodily harm – attempted murder – whether the Court considers a verdict of not guilty by way of mental impairment is appropriate – s 321(2) of the Crimes Act 1900 (ACT) – whether the accused was mentally impaired pursuant to s 28 of the Criminal Code 2002 (ACT)CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – SERIOUS OFFENCES – whether the Court considers it appropriate to make an order for detention – ss 324(2) and 308 of the Crimes Act
CRIMINAL LAW – NOMINATED TERM – s 302 of the Crimes Act – whether the Court would have imposed a sentence of imprisonment if the accused had not been acquitted – what the nominated term of sentence would be if the accused had been found guilty – “best estimate” of a hypothetical term – sentencing purposes – moral culpability of an accused under a mental impairment – objective and subjective seriousness of the offences

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 3) [2018] ACTCA 63
Uploaded 6 December 2018
COSTS – whether the Chorley exception applies to the appellant

McLeod v The Queen [2018] ACTCA 59
Uploaded 5 December 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the primary judge erred in treating the failure to repay the stolen money as an aggravating factor in the assessment of objective seriousness

Parker v The Queen [2018] ACTCA 58
Uploaded 4 December 2018
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifestly excessive

R v AX [2018] ACTSC 327 (SCC 171 of 2014)
Uploaded 4 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Breach of Good Behaviour Order – previous breaches – positive matters taken into account – family and community support - resentence

R v Novakovic [2018] ACTSC 331 (SCC 1 of 2018; SCC 2 of 2018; SCC 129 of 2018; SCC 131 of 2018)
Uploaded 3 December 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – drive motor vehicle without consent – trespass – resist a public official in the exercise of their functions – provide a false name to police – unlawful possession of stolen property

Veal (by his next friend Watson) v Hehir [2018] ACTSC 330
Uploaded 30 November 2018
PRACTICE AND PROCEDURE - Court Procedures Rules 2006 (ACT) r 282 – application to approve a settlement involving a minor – where proceedings already discontinued prior to approval being sought – where litigation guardian no longer supports court approval of the settlement – whether settlement in the interests of the child

Arcidiacono v Commissioner for ACT Revenue; Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue [2018] ACTCA 56
Uploaded 28 November 2018
APPEAL – Appeal from ACT Supreme Court – appellants’ proposed orders – need to regularise proceedings – whether to join the estate of the deceased as a party

Andrews v Thomson [2018] ACTCA 53
Uploaded 28 November 2018
APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS -  Appeal against primary judgment – appeal against dismissal of charge – whether power to arrest for breach of bail permits entry of premises without warrant to effect arrest – interpretation of legislation – compatibility with human rights legislation

Nouri v Australian Capital Territory (No 2) [2018] ACTSC 328
Uploaded 27 November 2018
TORTS – NEGLIGENCE – Costs – Offer of compromise – Calderbank Offer – discretion – personal costs order against solicitor

R v Fountain [2018] ACTSC 329 (SCC 6 of 2018; SCC 7 of 2018)
Uploaded 27 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing grievous bodily harm

Islam v Director General of the Justice and Community Safety Directorate [2018] ACTSC 323
Uploaded 23 November 2018
PRACTICE AND PROCEDURE – Court Procedure Rules 2006 (ACT) r 1147 – application for summary judgment – where threshold for summary judgment not met– application dismissed

Islam v Director-General of the Department of Justice and Community Safety Directorate [2018] ACTSC 322
Uploaded 23 November 2018
HUMAN RIGHTS – prison facilities – religious freedom – freedom of education – whether conduct by prison as a public authority contravened Human Rights Act 2004 (ACT) ss 14, 19, 27A – where failure to provide vegetarian food to a prisoner who was a practising Muslim – where policy allowed arbitrary charges for printing facilities – whether limitation of rights justifiable

R v Williams [2018] ACTSC 325 (SCC 222 of 2015)
Uploaded 23 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Aggravated robbery – plea of guilty in Supreme Court – significant criminal history – substance abuse – mental health issues – rehabilitation programs

R v Lloyd; R v Norris [2018] ACTSC 314 (SCC 154 of 2018; SCC 158 of 2018 - SCC 155 of 2018; SCC 156 of 2018)
Uploaded 23 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking a trafficable quantity of cannabis – joint commission – dealing with the proceeds of crime – objective seriousness – first offender –  testimonials – CADAS Report – prospects for rehabilitation – plea of guilty – second offender – prior convictions – testimonials – psychological report – good prospects for rehabilitation – sentences of imprisonment imposed – wholly suspended

R v Summers; R v Miller [2018] ACTSC 324
Uploaded 23 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – Trial by judge alone – Verdict – Unlawfully taking child by joint commission – Attempt to pervert the course of justice – Verdict of guilty on all counts
STATUTES – INTERPRETATION – Crimes Act 1900 (ACT) s 40 – Unlawfully taking child – Elements of an offence – Whether the child was taken “by deception” – Meaning of “deception” – Whether “deception” includes a misrepresentation of intention as opposed to a misrepresentation of fact – Ordinary meaning of the Act – Interpretation that would best achieve the purpose – Legislation Act 2001 (ACT) ss 138, 139, 141 CRIMINAL LAW – GEOGRAPHICAL APPLICATION – Criminal Code 2002 (ACT) pt 2.7 – When an offence is committed completely outside the ACT – Whether a geographical nexus exists between the ACT and the offence – Whether the offence has an effect in the ACT – Where an attempt is an inchoate offence – Whether peace, welfare or good government of the Territory is threatened by an attempt to pervert the course of justice

Dickson v Irwin [2018] ACTSC 315
Uploaded 23 November 2018
APPEAL AND NEW SENTENCE – APPEAL – Criminal law – appeal against conviction – unlawful arrest – failure to produce identification – breach of the peace – appeal allowed

Lewis v Australian Capital Territory [2018] ACTCA 49
Uploaded 21 November 2018
APPEALS - Application for Leave to Appeal Out of Time – periodic detention cancelled – sentence had expired – applicant not given opportunity to attend inquiry – special circumstance – adequate explanation for failure to lodge appeal within time prescribed – significant legal issues raised – whether applicant’s case is weak – availability of vindicatory damages is a live issue – content of right to compensation for unlawful detention – s 18(7) of the Human Rights Act 2004 (ACT)

Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50
Uploaded 20 November 2018
NEGLIGENCE – BREACH OF DUTY OF CARE – whether adequate system of maintaining the surface of the car park– whether there was a foreseeable risk of injury – whether a reasonable occupier ought to have done anything differently
NEGLIGENCE - BREACH OF DUTY OF CARE – whether the car park had an adequate level of lighting – limited evidence relating to the level of lighting
NEGLIGENCE – CAUSATION – necessary condition of the occurrence of harm – whether negligence caused injury
APPEAL – RESPONDENTS’ NOTICE OF CONTENTION – whether the primary judge made an incorrect finding of fact – whether the appellant had tripped on a visible sleeper rather than an unseen depression or pothole

R v Eyles [2018] ACTSC 318 (SCC 220 of 2014; SCC 191 of 2016; SCC 219 of 2018)
Uploaded 15 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of good behaviour order – failure to report change of details – purposes of punishment – adequate punishment – general and specific deterrence – rehabilitation

R v Lockwood [2018] ACTSC 26
Uploaded 14 November 2018
CRIMINAL LAW – EVIDENCE – Evidentiary matters relating to witnesses and accused persons – pre-trial application – identification evidence – whether not reasonable to have held an identification parade – whether probative value is significantly outweighed by unfair prejudice
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – Visual identification evidence – use of Facebook profile photograph to identify the accused – not reasonable to have held an identification parade – probative value not outweighed by unfair prejudice – evidence of the identification of the accused by reference to his Facebook page not excluded

R v Lang [2017] ACTSC 327
Uploaded 14 November 2018
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE – application to adduce tendency evidence – where the making of an application will not substantially alter the extent of evidence to be called – where there is a real risk that any ruling on tendency evidence will need to be reconsidered at the trial – decline to make orders sought – application dismissed – turns on own facts

R v Gunner [2018] ACTSC 71
Uploaded 14 November 2018
EVIDENCE – ADMISSIBILITY – application of s 138 Evidence Act 2011 (ACT) – vehicle seized by police without authority – vehicle subsequently searched pursuant to warrant – drugs found – mistaken belief that seizure was lawful – whether evidence was “in consequence” of impropriety or contravention of Australian law – whether evidence should be admitted despite unlawful seizure - evidence admitted

D’Arcy v Caltex Australia Limited (No 3) [2018] ACTSC 307
Uploaded 9 November 2018
COSTS – Application for special costs order – Calderbank offer made by defendant to plaintiff prior to trial proceedings – Rules Offer of Compromise made by defendant to plaintiff prior to trial proceedings – offers rejected by plaintiff – Court Procedures Rules 2006 (ACT) r 1012 – whether first defendant is entitled to a special costs order

Buckman v Lindbeck [2018] ACTSC 313
Uploaded 9 November 2018
FAMILY PROVISION – application to extend the time in which to commence proceedings seeking family provision – where plaintiff unaware of terms of will – where claim for family provision previously made by another beneficiary without plaintiff’s knowledge – where estate not fully distributed and no substantial prejudice to other beneficiaries – application granted

Smith v Stivala [2018] ACTSC 309
Uploaded 9 November 2018
APPEAL – Magistrates Court Appeal – licence disqualifications – whether the Magistrate erred in proceeding under s 61 of the Crimes (Sentencing) Act – whether where an aspect of an offender’s punishment is an automatic consequence of conviction, any circumstance of aggravation must be alleged in the charge – Magistrate had no power to make a disqualification order of the same length as the automatic disqualification period – ss 29 and 30 of the Crimes (Sentencing) Act 2005 (ACT) – cannot apply to automatic disqualification periods that take effect by force of statute – no issue of totality can arise – whether the Magistrate erred in making, or alternatively continuing, the order under s 65 of the Road Transport (General) Act 1999 (ACT) – no power available to the Magistrate to review the order imposing the indefinite disqualification – whether the total period of disqualification from holding or obtaining a licence was manifestly excessive in all of the circumstances – ample evidence upon which the Magistrate could conclude that it was necessary in the public interest to make the indefinite disqualification order – appeal dismissed

D’Arcy v Caltex Australia Limited (No 2) [2018] ACTSC 306
Uploaded 9 November 2018
PRACTICE AND PROCEDURE – Two fundamental errors – whether the Court is entitled to correct errors – Court Procedures Rules 2006 (ACT) r 1613 – filing of the order – amendment to decision

Greenwood v Irving [2018] ACTSC 310
Uploaded 7 November 2018
APPEALS – PRACTICE & PROCEDURE – application to dismiss appeal from a magistrate for want of prosecution – where orders stayed pending the determination of appeal – where delay of seven years since a step last taken in the appeal – whether unjust for appellant to serve sentence now – appeal dismissed

Bancroft v Carpenter [2018] ACTSC 304
Uploaded 7 November 2018
APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against severity of sentence – absence of suspension period for drug-driving offence committed with drink-driving offence delayed offender’s access to interlock program – effect of drug-driving offence on interlock program access overlooked by Magistrate – appeal allowed

R v Sikounnabouth [2018] ACTSC 296 (SCC 32 of 2018)
Uploaded 5 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – custodial sentence – offences committed whilst on conditional liberty

R v Salcedo; R v Stretton (No 3) [2018] ACTSC 305 (SCC 138 of 2017; SCC 139 of 2017; SCC 228 of 2017; SCC 117 of 2018; SCC 118 of 2018)
Uploaded 5 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – threat to inflict grievous bodily harm – recklessly inflict actual bodily harm – intentionally inflicting grievous bodily harm – home invasion in company – presence of firearms - co-accused – parity – youth of offenders – offenders on conditional liberty at time of offences – youth of victim an aggravating factor
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unauthorised possession of a prohibited firearm  - plea of guilty
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – take motor vehicle – unlawful possession of stolen property – theft – driving motor vehicle without consent -  damaging property – possession of Cannabis – possession of methylamphetamine – unauthorised possession of stolen property – unauthorised possession of ammunition – possession of an unregistered prohibited firearm – transferred offences – plea of guilty - parity - consideration of s 66 of the Crimes (Sentencing) Act (ACT)

R v Longmore [2018] ACTSC 298 (SCC 67 of 2018; 68 of 2018; 69 of 2018; 70 of 2018)
Uploaded 5 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – arson – driving while disqualified – burglary – theft – drive motor vehicle without consent – make off without payment

Aswad v Walker [2018] ACTSC 303
Uploaded 2 November 2018
APPEAL – GENERAL PRINCIPLES – Appeal against sentence – appeal against conviction

R v Hocking [2018] ACTSC 297 (SCC 199 of 2018)
Uploaded 2 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – bribery

R v Sullivan (No 2) [2018] ACTSC 300
Uploaded 1 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – circumstantial case - verdict – accused found not guilty

R v Cook [2018] ACTSC 302 (SCC 245 of 2018)
Uploaded 1 November 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception

Barnes v Barratt [2018] ACTSC 295
Uploaded 1 November 2018
APPEAL AND NEW TRIAL – APPEAL – Criminal law – Appeal against sentence imposed in Magistrates Court – whether sentence manifestly excessive – appeal dismissed

R v Potts [2018] ACTSC 299 (SCC 229 of 2017)
Uploaded 30 October 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence against a corrections officer – offences by a prisoner – special circumstances - sentencing purposes – punishment – denunciation – good prospects of rehabilitation - accountability

Beath v McCurley [2018] ACTCA 48
Uploaded 25 October 2018
APPEAL – CRIMINAL LAW – Appeal from ACT Supreme Court – licence disqualification - where appellant challenges jurisdiction of primary judge to entertain appeal from Magistrates Court proceedings – whether licence disqualification order is a sentence or penalty in terms of s 208(1)(d) of Magistrates Court Act 1930 (ACT) – whether magistrate has power to impose disqualification period that is the same as automatic period of disqualification – whether appeal lies under s 208(1)(d) of Magistrates Court Act 1930 (ACT) for an order beyond power – held: primary judge erred in finding jurisdiction to hear appeal from 11 out of 12 disqualification periods – held: primary judge did not have such jurisdiction – held: primary judge erred in setting aside those 11 disqualification periods – appeal allowed

In the Estate of Peter Ronald Wiseman [2018] ACTSC 292
Uploaded 24 October 2018
WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A

ZS v Sentence Administration Board [2018] ACTSC 289
Uploaded 24 October 2018
JUDICIAL REVIEW – denial of procedural fairness – bias – apprehended bias – whether discussion by members of Sentence Administration Board during adjournment of hearing of application for parole gave rise to actual bias or reasonable apprehension of bias

Goodwin v Williams [2018] ACTSC 279
Uploaded 24 October 2018
APPEAL AND NEW TRIAL – APPEAL – Criminal law – appeal against convictions – claim of errors of fact – claim of error in application of principle – whether verdict was unsafe and unsatisfactory – appeal dismissed

Kemp v Tiirikainen and Sutherland [2018] ACTSC 287
Uploaded 22 October 2018
PRACTICE & PROCEDURE – application to strike out whole or part of pleading – whether pleading discloses reasonable cause of action – whether aspects of pleading embarrassing – whether pleading an abuse of process – application dismissed

R v Green [2018] ACTSC 268
Uploaded 22 October 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – where two previous bail applications have been made – s 20C of the Bail Act 1992 (ACT) – whether delay caused by committal for trial in Supreme Court amounts to change in circumstances – whether subsequent inconsistent evidence of complainant is fresh evidence relevant to the grant of bail – application for bail refused

R v Lockwood [2018] ACTSC 288 (SCC 211 of 2017; 212 of 2017)
Uploaded 22 October 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – common assault – parity – guarded prospects of rehabilitation – significant criminal history

Johnson v Powrie [2018] ACTSC 284
Uploaded 22 October 2018
PRACTICE AND PROCEDURE – Settlement of Proceedings – failure of implementation of settlement – dismissal of claim – whether costs can be assessed – defendant made bankrupt – position of trustee
BANKRUPTCY – Proceedings against a bankrupt – application dismissed with costs – right of trustee of defendant’s bankrupt estate to seek assessment of costs – need for trustee to be made a party – need for leave to continue with proceedings

Johnson v Powrie [2018] ACTSC 283
Uploaded 22 October 2018
PRACTICE AND PROCEDURE – Costs – defendant made bankrupt – whether trustee of defendant’s bankrupt estate can apply for costs – need to be made a party and given leave

Johnson v Powrie [2018] ACTCA 46
Uploaded 22 October 2018
APPEAL AND NEW TRIAL – Settlement by mediation – non-compliance with the terms of settlement – Respondent made bankrupt – effect on proceedings – trustee required to be made a party before further steps in the appeal taken
BANKRUPTCY – proceedings in respect of chose in action – whether Respondent has a chose in action – whether trustee can take over proceedings
BANKRUPTCY – stay of proceedings – whether Respondent can take a step in stayed proceedings

R v Sharp [2018] ACTSC 286 (SCC 268 of 2017)
Uploaded 19 October 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – unlawful confinement – demands accompanied by threats – plea of guilty –  parity

Spence v Neilson [2018] ACTSC 273
Uploaded 17 October 2018
TORTS – NEGLIGENCE – Breach of duty – medical treatment – – temporal relationship between varicose vein surgery on obese patient and an injury to the right buttock and hip – various breaches alleged including failure of surgeon to provide appropriate advice as to the benefits and risks of varicose vein stripping surgery – evidence given by plaintiff that she would not have proceeded with surgery if advised there were no immediate risks to her health in not proceeding – whether plaintiff established that advice during consultation involved breach of duty – breach of duty not established – turns on own facts
TORTS – NEGLIGENCE – Causation – medical treatment – temporal relationship between varicose vein surgery on obese patient and an injury to the right buttock and hip – injury not a known risk of varicose vein surgery – mechanism of injury not established – causation established by reason of temporal connection between surgery and injury

Practitioner D3 v Council of the Law Society of the Australian Capital Territory [2018] ACTCA 47
Uploaded 17 October 2018
COURTS AND JUDICIAL SYSTEM — CROSS-VESTING —Transfer of proceedings to the Federal Court under s 6 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) — Whether the proceedings involve a “special federal matter” — Whether the interpretation of an ACT legislation is a matter “arising under a law made by the Parliament” — section 39B(1A)(c) of the Judiciary Act 1903 (Cth) COURTS AND JUDICIAL SYSTEM — CROSS-VESTING —Transfer of proceedings to the Federal Court under s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 (ACT) — Whether the proceedings “arises out of, or is related to” proceedings in the Federal Court — Whether the Federal Court is a more appropriate forum

Marsh v Commissioner for Social Housing [2018] ACTSC 280
Uploaded 17 October 2018
APPEAL – DECISION BY AN ADMINISTRATIVE TRIBUNAL – ACT Civil and Administrative Tribunal – Application for leave to appeal from interlocutory orders made by Appeal Tribunal – whether arguable basis for challenge to orders – whether appeal would lack utility following execution of termination and possession order – extent of Tribunal’s obligation to give reasons – leave to appeal refused

R  v Lancaster [2018] ACTSC 285 (SCC 142 of 2018)
Uploaded 17 October 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception

BI v Moss [2018] ACTSC 278
Uploaded 16 October 2018
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – whether conviction unreasonable or not supported by the evidence – admission of fresh evidence of good character on appeal – evidence of good character not tendered before Magistrate due to inadvertence – whether the Magistrate erred in treating the appellant’s conduct as an implied admission – whether the Magistrate erred in failing to direct himself in accordance with Edwards v The Queen – whether the Magistrate erred in drawing conclusions about the witness’ credit – appeal allowed – matter remitted to the Magistrates Court for rehearing

Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2018] ACTSC 282
Uploaded 15 October 2018
BUILDING AND CONSTRUCTION – Building and Construction Industry (Security of Payment) Act 2009 (ACT) – validity of payment claim – whether work carried out under a contract such as to enliven the statutory regime – whether a second payment claim was served in respect of the same reference date under contract

R v DU [2018] ACTSC 281
Uploaded 12 October 2018
CRIMINAL LAW – whether the indictment filed by the Crown results in double jeopardy – whether this Court can and should take steps to rectify that situation
CHILD SEXUAL OFFENCES – Committed for trial on six charges of engaging in sexual intercourse with a young person who was under the applicant’s special care – ex officio charge alleging that the applicant maintained a sexual relationship with the young person – six acts which form the basis of the charges under s 55A of the Crimes Act 1900 (ACT) are the same six acts which the Crown relies upon as the basis for the charge under s 56 of the Crimes Act – application for a stay
STATUTORY INTERPRETATION – interpretation of subsections 56(8) and (9) – legislative history – s 92EA of the Crimes Act 1900 (ACT) – legislature sought to address common law requirement that offences be particularised to an extent that may make prosecution of child sexual offences problematic – whether the previous offence permitted the prosecution to proceed on a charge of maintaining a sexual relationship and specific charges based upon the same alleged acts – consideration of other jurisdictions – issue estoppel – Model Provision recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse - difficulty prosecution authorities experience in prosecuting cases of persistent sexual abuse of children – introduction of persistent child sex abuse offences
HUMAN RIGHTS – Human Rights Act 2004 (ACT) s 24 – “an offence” – whether the term is to be construed narrowly or to be given a broader interpretation – European jurisprudence COMMON LAW – pleas in bar – autrefois convict – autrefois acquit – availability of a stay of proceedings in appropriate cases to prevent abuse of process or double punishment

Benjamin Mitchell v Australian Capital Territory [2018] ACTSCFC 1
Uploaded 12 October 2018
ERSONAL INJURY – Motor Vehicle Accident – relevance of the terms of s 97 of the Act to determining the correct interpretation of s 141 of the Road Transport (Third Party Insurance) Act 2008 (ACT) – whether a respondent to a motor accident claim can deny liability prior to the commencement of court proceedings and still make a mandatory final offer to settle a claim in a sum greater than $0
STATUTORY INTERPRETATION – objects of the Act – legislative scheme – encourage the speedy resolution of personal injury claims arising from motor vehicle accidents – whether a respondent is entitled to make a mandatory final offer without making some admission of liability – “denying liability altogether” – whether there was a basis for the appellant to give the respondent a compliance notice under s 158 of the Act

Oliver v Roberts (No 2) [2018] ACTCA 44
Uploaded 10 October 2018
PRACTICE AND PROCEDURE – COSTS – Where plaintiff made offer of compromise – Where offer not accepted and judgment on appeal no less favourable to plaintiff – Rule 1010 Court Procedures Rules 2006 (ACT) – Whether the plaintiff’s claim changed significantly after offer was made – Whether there are exceptional circumstances
PRACTICE AND PROCEDURE – COSTS – Costs of appeal – Whether the appellant enjoyed only a limited success on appeal – Whether costs should follow the event

R v Swift; R v Ghous [2018] ACTSC 277 (SCC 90 of 2018; SCC 106 of 2018)
Uploaded 8 October 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – knowingly concerned in arson

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 2) [2018] ACTCA 43
Uploaded 5 October 2018
APPEAL AND NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS -  Appeal against primary judgment – notice of infringement – whether a valid delegation has been made – writ of prohibition

Langlands v Burnell [2018] ACTSC 272
Uploaded 5 October 2018
APPEAL AND NEW TRIAL – APPEAL – Criminal law – Interference with Discretion of Court Below – appeal against sentence imposed in Magistrates Court – correct pleading of appeal grounds – whether specific error established – whether sentence manifestly inadequate – whether manifest inadequacy appeal useful in establishing principle – appeal dismissed.

Hartigan v Treasurer of the Australian Capital Territory [2018] ACTSC 271
Uploaded 28 September 2018
JUDICIAL REVIEW – review of Minister’s decision refusing to make an “act of grace” payment pursuant to s 130 of the Financial Management Act 1996 (ACT) – whether decision amenable to judicial review – error of law in construing criteria for exercising the discretion

Nouri v Australian Capital Territory [2018] ACTSC 275
Uploaded 28 September 2018
TORTS – NEGLIGENCE – where a child was born with significant disabilities – whether the parents of the disabled child had been or ought to have been warned about the prospect of the condition  – content and scope of the duty of care – causation – whether a termination would have been available – whether a termination would have occurred

R v Guy [2018] ACTSC 270 (SCC 208 of 2018; SCC 209 of 2018)
Uploaded 28 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing grievous bodily harm – drive motor vehicle without consent – objective seriousness of the offences – sentencing purposes – general deterrence – specific deterrence – separate charges treated as aggravating features to the principal offence

R v Mikac [2018] ACTSC 269 (SCC 80 of 2018)
Uploaded 28 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – firearms offences – unauthorised possession of prohibited firearms – unauthorised possession of firearms – unauthorised possession of ammunition – failure to properly store a prohibited firearm – failure to properly store a firearm – early pleas of guilty – no criminal history – good prospects of rehabilitation – impact of incarceration on offender’s family – intensive correction order

R v Grech; R v Rappel [2018] ACTSC 271 (SCC 62 of 2018; SCC 64 of 2018)
Uploaded 28 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally causing grievous bodily harm - assault occasioning actual bodily harm - common assault

Howard-Hill v James [2018] ACTSC 249
Uploaded 27 September 2018
TORTS – NEGLIGENCE – Motor vehicle accident – assessment of damages – whether plaintiff’s migraine condition caused by motor vehicle accident – causation not established – turns on own facts – TORTS – NEGLIGENCE – Contributory negligence – motor vehicle accident – plaintiff stops to avoid birds on road – contributory negligence not established

R v Simonds [2018] ACTSC 265
Uploaded 27 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – verdict – common assault – assault occasioning actual bodily harm – unlawful confinement – threat to kill – choke, suffocate or strange – e-mail train – satisfaction beyond reasonable doubt

R v Hile [2018] ACTSC 266 (SCC 231 of 2017)
Uploaded 27 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – acts of indecency with a person under 16 years – sexual intercourse with a person under 16 years

Bennett v Australian Capital Territory (No 2) [2018] ACTSC 245
Uploaded 27 September 2018
TORTS – NEGLIGENCE – Medical negligence – interlocutory application – request for further and better particulars – further particulars previously requested and provided – defence to pleadings filed by defendants – limited further particulars ordered

Al-Harazi v The Queen [2018] ACTCA 40
Uploaded 27 September 2018
APPEAL – CRIMINAL LAW – Appeal against sentence – leave to appeal out of time – no explanation for delay in appeal – applicant seeks to change his plea following jury trial and conviction – change of plea or admission of guilt does not demonstrate error in sentencing – no utilitarian value in change of plea following conviction – no arguable basis for appeal against conviction – leave to appeal out of time dismissed

Islam v Director-General, Justice and Community Safety Directorate [2018] ACTCA 41
Uploaded 25 September 2018
PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Application for leave to appeal from the Supreme Court – appeal from costs order – costs sought by self-represented litigant – whether judge erred by failing to make costs order in favour of self-represented litigant – no error shown – application refused

Hoyle v The Queen [2018] ACTCA 42
Uploaded 20 September 2018
APPEAL – CRIMINAL LAW – GENERAL PRINCIPLES – admitting further evidence on appeal – distinction between new evidence and fresh evidence – fresh evidence – whether the absence of fresh evidence at trial amounted to a miscarriage of justice – whether jury would be “reasonably likely” to acquit if they had known of the fresh evidence at trial – whether the fresh evidence meant the appellant would have run the trial differently
CRIMINAL LAW – GENERAL PRINCIPLES – defence of mental impairment – ss 27 and 28 of the Criminal Code 2002 (ACT) –- when accused under a mental impairment – whether the accused did not know the nature and quality of the conduct – whether the accused knew the conduct was wrong – whether the accused could not control the conduct
EVIDENCE – TENDENCY EVIDENCE – multiple complainants of sexual offences – probative value of tendency evidence – whether tendency evidence would cause unfair prejudice – whether the prosecutor used tendency evidence in an impermissible manner – distinction between tendency and coincidence evidence
CRIMINAL LAW – DIRECTIONS TO JURY – conduct of the prosecutor – whether the prosecutor’s errors caused a miscarriage of justice – whether the trial judge’s jury directions cured the prosecutor’s errors
CRIMINAL LAW – DIRECTIONS TO JURY – Liberato directions – whether the trial judge correctly identified to the jury the burden and standard of proof – whether a Liberato direction should have been given – Jovanovic directions – adequacy of directions regarding the complainants’ motive to lie – whether a Jovanovic direction should have been given EVIDENCE – CREDIBILITY EVIDENCE – s 108C of the Evidence Act 2011 (ACT) – whether the evidence could substantially affect the assessment of the credibility of the witness – whether a failure to address s 192 of the Evidence Act 2011 (ACT) affects the admission of evidence under s 108C

Ezekiel-Hart v Reis [2018] ACTSC 264
Uploaded 19 September 2018
PRACTICE AND PROCEDURE – application for summary judgment – whether reasonable cause of action disclosed – application seeking a declaration that the plaintiff is a vexatious litigant – where arguable causes of action found and plaintiff demonstrates some insight into legal consequences – applications dismissed

R v Chute (No 3) [2017] ACTSC 409
Uploaded 19 September 2018
CRIMINAL LAW – PRACTICE AND PROCEDURE – Special hearing – fitness to elect trial by judge and jury or trial by judge alone – accused previously found unfit to plead to historical child sex charges – whether to appoint a guardian with power to make such an election – consideration of s 316(2) of the Crimes Act 1900 (ACT)

R v Chute (No 4) [2018] ACTSC 259
Uploaded 19 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – applicant accused of sexual offences against children – found unfit to plead – election made for trial by judge alone – application for permanent stay based on poor health and delay – whether accused person who is unfit to plead required to attend special hearing – likely outcome of proceedings if special hearing does not lead to acquittal – delay – continuation of proceedings not involving unacceptable injustice or unfairness or an abuse of process – permanent stay refused

R v Chute (No 2) [2017] ACTSC 347
Uploaded 18 September 2018
CRIMINAL LAW – PRACTICE AND PROCEDURE – Accused previously found unfit to plead to historical child sex charges – proceedings listed for special hearing without consideration whether accused capable of making election for trial by judge alone – whether it is open to accused to make election for special hearing to be trial by judge alone – relationship between s 68B of the Supreme Court Act 1933 (ACT) and s 316(2) of the Crimes Act 1900 (ACT)

R v Baxendale [2018] ACTSC 260 (SCC 66 of 2018; 71 of 2018; 157 of 2018)
Uploaded 17 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily – causing grievous bodily harm – common assault – domestic violence – please of guilty – remorse – hardship to family – no pre-sentence report available

R v Bandy [2018] ACTSC 261 (SCC 254 of 2017)
Uploaded 17 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – intensive corrections order assessment – where offender at a ‘crossroads’

R v Rose [2018] ACTSC 237 (SCC 208 of 2017)
Uploaded 17 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aid and abet the commission of an offence – co-offender – offence of arson – plea of guilty after negotiations – seriousness of offence – level of involvement in offence – good prospects for rehabilitation

R v Biddle [2018] ACTSC 247 (SCC 35 of 2018; SCC 36 of 2018)
Uploaded 17 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – theft – four offences of obtaining property by deception – one offence of taking a motor vehicle without consent – drive whilst disqualified as a repeat offender – criminal history – co-offender – Pre-Sentence Report – Intensive Corrections Order Assessment Report – pleas of guilty – age – prospects for rehabilitation

R v Trewin [2018] ACTSC 256 (SCC 87 of 2015; SCC 88 of 2015)
Uploaded 14 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a trafficable quantity of cannabis – cultivating a trafficable quantity of cannabis – finding of guilt after judge-alone trial – level of remorse – appropriateness of a term of imprisonment

R v KI [2018] ACTSC 235 (SCC 26 of 2017)
Uploaded 14 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – criminal history – subject to Good Behaviour Orders – Pre-Sentence Report – juvenile when offence committed – rehabilitation – co-offenders – plea of guilty

R v Chevalier [2018] ACTSC 236 (SCC 10 of 2017; SCC 11 of 2017; SCC 4 of 2018; SCC 5 of 2018)
Uploaded 14 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – range of offences – aggravated robbery – assault occasioning actual bodily harm – inflicting actual bodily harm – intentionally inflicting grievous bodily harm – found guilty by jury after trial – findings of fact – joint enterprise – objective seriousness – second series of offences – attempted burglary – recklessly threatening to kill – possession of a knife – plea of guilty – conditional liberty – subjective feature

R v Parlov [2018] ACTSC 248 (SCC 37 of 2018; SCC 38 of 2018)
Uploaded 14 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – in company – aggravated burglary – in company – theft – riding in a motor vehicle without consent – four offences of obtaining property by deception – unauthorised possession of a prohibited weapon – summary charge – possession of a prohibited substance – victim impact statement – subjective features – criminal history – Pre-Sentence Report – medium risk of re-offending –  CADAS Assessment – pleas of guilty – totality – reasonable prospects for rehabilitation

R v Denniss [2018] ACTSC 239 (SCC 172 of 2018)
Uploaded 14 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – unlawfully at large – aggravated robbery – robbery occurred following conditional release on bail – poor criminal history – sentenced to imprisonment

Australian Capital Territory v SMEC Australia Pty Ltd [2018] ACTSC 252
Uploaded 13 September 2018
PRACTICE & PROCEDURE – PRIVILEGE – parliamentary privilege – whether documents in proceedings prepared by Auditor-General are protected from production by s 16(2) of the Parliamentary Privileges Act 1987 (Cth) – COSTS – where applications in proceedings for provision of documents resolved by consent – whether plaintiff should pay costs of the applications – whether defendants successful on applications

Kusa v Vong (trading as Allen Vong & Associates) [2018] ACTSC 254
Uploaded 13 September 2018
PRACTICE AND PROCEDURE –Discovery – Preliminary Discovery – principles applicable to applications for Preliminary Discovery - differences between rr 650 and 651 of the Court Procedures Rules 2006 (ACT) – application under r 650 cannot be used to identify which of known persons is the correct potential defendant - need for an identifiable cause of action

PM v Childrens Court of the Australian Capital Territory & Ors [2018] ACTSC 258
Uploaded 12 September 2018
JUDICIAL REVIEW – statutory construction – Legislation Act 2001, s 149 – whether a person who was born on 29 February 2000 was classified as a child or an adult on 28 February 2018.

Bright v The Queen [2018] ACTCA 39
Uploaded 12 September 2018
CRIMINAL LAW – Appeal – complaint that mental health issues not fully taken into account – complaint of poor representation – complaint that statement from partner not put before the Court – whether the proposed further evidence should be received – whether the individual sentences or aggregate sentence were manifestly excessive

R v Dune [2018] ACTSC 257 (SCC 255 of 2017)
Uploaded 11 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency without consent – objective seriousness of offence – plea of guilty – need for personal deterrence – need for general deterrence – level of remorse – prospects for rehabilitation

R v Vo [2018] ACTCA 36
Uploaded 11 September 2018
APPEAL – CRIMINAL LAW – Appeal against sentence – sentence manifestly inadequate – s 137  of the Crimes (Sentencing) Act 2005 (ACT) – where respondent undertook to provide assistance by giving evidence in criminal proceedings – complete failure to comply with undertaking – reduced sentence substituted for sentence the court would have otherwise imposed

Zhao v The Queen [2018] ACTCA 38
Uploaded 11 September 2018
APPEAL – Appeal against sentence – whether the primary judge erred in failing to adequately take into account the appellant’s plea of guilty – whether the pleas should have been treated as early pleas – negotiations with the Crown – whether the primary judge fell into error by taking into account the strength of the Crown case – whether the primary judge erred in providing too much accumulation between the sentences for Counts 3 and 4

R v Chatfield [2017] ACTSC 325
Uploaded 10 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – change in previous bail applications – threshold test in s 20C of the Bail Act 1992 (ACT) to show change in circumstances or fresh evidence or information – what is significant to meet threshold test – provision of brief of evidence – committal for trial – s 20C threshold requirement not met – bail not granted – application dismissed

Corkhill v Commonwealth of Australia (No 4) [2018] ACTSC 255
Uploaded 10 September 2018
PRACTICE AND PROCEDURE – Costs – ordinary rule – no,basis for departure from ordinary rule – error in order made
corrected
PRACTICE AND PROCEDURE – Judgments and Orders – orders subject to a condition – effect of such orders – correction of order

R v Hanson [2018] ACTSC 181 (SCC 291 of 2017; SCC 292 of 2017)
Uploaded 10 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – assault occasioning actual bodily harm – forcible confinement – history of illicit drug use  – dysfunctional upbringing – significant criminal history – plea of guilty to charge of assault occasioning actual bodily harm – found guilty by jury of forcible confinement – sentencing purposes – consideration of rehabilitation – custodial sentence

R v Oeti [2018] ACTSC 229 (SCC 104 of 2014; SCC 24 of 2018)
Uploaded 10 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – multiple counts of aggravated robbery with various offensive weapons, namely, a replica firearm, a baseball bat, a machete and a knife – limited criminal history when offences committed – guilty pleas – totality of sentences – concurrency – Queensland sentence treated as if it were a head sentence with a non-parole period rather than a head sentence with a suspended sentence – punishment – general deterrence – specific deterrence – denunciation – custodial sentence

R v Collins [2018] ACTSC 204
Uploaded 10 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial – trial by judge alone – aggravated robbery – whether accused had a knife at the time of the robbery – whether accused stole mobile phone – whether accused made threats against the complainant at the time of the robbery – verdict of guilty entered

R v TT; R v SN [2018] ACTSC 253 (SCC 76 of 2017; SCC 77 of 2017; SCC 78 of 2017; SCC 79 of 2017)
Uploaded 7 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – grievous bodily harm by negligent or unlawful act or omission – co-accused – plea of guilty in Supreme Court – child – removed from care of parents – substance abuse – mental health – physical health – different levels of moral culpability – whether a term of imprisonment is appropriate

Director of Public Prosecutions v Spong [2018] ACTCA 37
Uploaded 6 September 2018
CRIMINAL LAW – DIRECTIONS TO JURY – culpable driving involving negligence – section 29 of the Crimes Act 1900 (ACT) – whether the accused’s driving must “involve a high risk that death or serious injury would follow from the relevant conduct”
CRIMINAL LAW – REFERENCE APPEAL – statutory interpretation – whether ACT and Victorian provisions are substantially identical – construction of s 29 of the Crimes Act 1900 (ACT) – construction of s 318 of the Crimes Act 1958 (Vic) – where the wording of the provisions are identical – where the context and purpose differ – whether Victorian Court of Appeal authorities should be followed

Carr v Harlovich [2018] ACTSC 251
Uploaded 6 September 2018
APPEAL – Appeal from Magistrates Court – offence of driving with prescribed drug in oral fluid – repeat offender – automatic disqualification period – appeal of disqualification

R v Miller [2018] ACTSC 244 (SCC 243 of 2017)
Uploaded 4 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – plea of guilty – intensive corrections order assessment – good prospects of rehabilitation

R v UG [2018] ACTSC 243 (SCC 114 of 2018)
Uploaded 4 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary with intent to cause harm – act of indecency – sexual intercourse without consent – plea of guilty – intensive corrections order not suitable – custodial sentence – suspended after five months

R v LQT [2018] ACTSC 246 (SCC 178 of 2017)
Uploaded 3 September 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – individualised justice – sentencing purposes – general deterrence – denunciation

Khan v Batagode [2018] ACTSC 240
Uploaded 3 September 2018
PERSONAL INJURY – Motor vehicle accident – notification of claim made after expiry of prescribed notification period – application to proceed with claim despite non-compliance – whether in the interests of justice to proceed with claim – whether the delay in notification has caused prejudice to the defendants – application granted
STATUTORY CONSTRUCTION - Road Transport (Third-Party Insurance Act 2008 (ACT), s 85

R Developments Pty Limited v Forth (No 2) [2018] ACTSC 241
Uploaded 3 September 2018
COSTS – principles applicable to review of costs assessment – whether costs associated with removal of a caveat were part of the costs of the proceedings – reasonableness of time taken to prepare file for assessment – reasonableness of interstate counsel’s fees – reasonableness of costs of the costs assessment

R v Johnson [2018] ACTSC 242
Uploaded 31 August 2018
EVIDENCE – Admissibility –section 138 of Evidence Act 2011 (ACT) – whether evidence obtained in consequence of a contravention of an Australian law – whether evidence obtained in contravention of an Australian law – whether discretion should be exercised
POLICE AND EMERGENCY SERVICES – WARRENTLESS SEARCH – section 190 of Crimes Act 1900 (ACT) – whether there is imminent danger of injury – whether a person has suffered physical injury – whether it is necessary to enter the premises immediately
CRIMINAL LAW – SEARCH WARRANTS – warrant issued via telephone – sections 185, 194 and 205 of Crimes Act 1900 (ACT) – warrant issued when the issuing officer is outside of the ACT – whether warrant was validly issued

R v Massey [2018] ACTSC 221 (SCC 83 of 2018; SCC 148 of 2018; SCC 149 of 2018)
Uploaded 30 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – unauthorised possession of a firearm – possessing ammunition – riding a motor vehicle without consent – possession of stolen property – possession of a drug of dependence – possessing a prohibited substance – possessing declared substances – poor criminal history – specific deterrence – general deterrence – sentenced to imprisonment and fines imposed

R v Dawson [2018] ACTSC 238 (SCC 49 of 2018; SCC 50 of 2018)
Uploaded 29 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two series of offences – burglary – theft – take motor vehicle without consent – escape lawful custody – drug addiction – extensive criminal history – prospects for rehabilitation

CP v Director-General, Community Services Directorate [2018] ACTCA 32
Uploaded 29 August 2018
PRACTICE AND PROCEDURE – INTERLOCUTORY APPEAL – Leave to appeal from the Supreme Court – appeal from directions consequent upon finding that children were at risk of physical abuse – significant delay in determining appeal from orders made by Childrens Court – factual basis for finding not made out – leave to appeal granted
CHILDREN – CHILD WELFARE – Care and protection orders – Appeal to the Supreme Court from a decision of a magistrate in the Childrens Court relating to care and protections under the Children and Young People Act 2008 (ACT) – finding that children were at risk of “physical abuse” – primary judge gives extended meaning to “physical abuse” – risk of physical abuse not established on the evidence – primary judge’s extended definition of physical abuse doubted – appeal allowed – respondent not entitled to cross-appeal to raise new argument having regard to conduct of proceedings – appeal upheld – application for care and protection orders dismissed

Ndlovu v The Queen [2018] ACTCA 33
Uploaded 29 August 2018
APPEAL – CRIMINAL LAW – Appeal against sentence – offences involving unlawful confinement and threats with shotgun – separate incident involving going equipped with offensive weapon with intent to commit aggravated burglary – whether primary judge erred by treating being in company as an aggravating factor when going equipped with intent – whether sentence for unlawful confinement manifestly excessive – whether double counting of criminality of possession of firearm and use in unlawful confinement – whether sentence for bare possession of a firearm manifestly excessive having regard to sentence for unlawful confinement – whether excessive accumulation between sentences – appeal allowed – appellant resentenced to same aggregate term of imprisonment
STATUTES – INTERPRETATION – Operation and effect of statutes – whether s 71 of the Crimes (Sentencing) Act 2005 (ACT) requires express order to be made about concurrency rather than necessary implication from specified start and end dates of sentences – it does not

R v KS [2018] ACTSC 220 (SCC 134 of 2018)
Uploaded 27 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – historical sex offence – indecent assault of person under 16 years – victim later confirmed as offender’s biological daughter – isolated incident – serious example of offence – requirement for denunciation and punishment – sentenced to full-time imprisonment, suspended after three months

Steed v McDougall and Anor [2018] ACTSC 233
Uploaded 27 August 2018
PRACTICE AND PROCEDURES – PERSONAL INJURY PROCEEDINGS – Service of expert reports – Application to serve additional expert report after date permitted by prior directions –  Rule 1241 of Court Procedures Rules 2006 (ACT) – Application to adjourn substantive hearing – Rule 1401 of Court Procedures Rules 2006 (ACT) – “exceptional circumstances” – interests of justice

R v Wickes [2018] ACTSC 225 (SCC 88 of 2018)
Uploaded 27 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentionally causing damage to property – use an offensive weapon likely to endanger human life or cause grievous bodily harm - aggravated burglary

Perry v Pese (No 2) [2018] ACTSC 232
Uploaded 27 August
TORTS – NEGLIGENCE – Costs – Offer of compromise – Jurisdiction of Magistrates Court

Small v Small [2018] ACTSC 231
Uploaded 24 August 2018
PRACTICE & PROCEDURE – application to transfer proceedings commenced in the Magistrates Court – whether proceedings complex – where legal principles established and facts straightforward – where procedure in the lower court not disadvantageous – application dismissed

Oliver v Roberts [2018] ACTCA 35
Uploaded 24 August 2018
DAMAGES – assessment of damages – future economic loss – damages for future care – assessment of a future economic loss buffer using rough calculation – incorrect multiplier used in rough calculation – basis of future care award unclear – inadequate reasons – whether appropriate to reduce award for future care for contingencies

Jancevski v WR Engineering Pty Ltd [2018] ACTCA 34
Uploaded 24 August 2018
TORTS – NEGLIGENCE - Standard of Care – standard owed by employer to employee – standard turning on facts of the particular case – whether employer provided employee with adequate training and warning in respect of a foreseeable and not insignificant risk of injury – adequate training provided.

R v Percival [2018] ACTSC 230 (SCC 89 of 2018)
Uploaded 24 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – attempted aggravated robbery – sentencing purposes – general deterrence – adequate punishment – good prospect of rehabilitation

Shoj v Barnsley [2018] ACTSC 185
Uploaded 23 August 2018
APPEAL – Magistrates Court appeal – procedural fairness – decision to refuse adjournment – appeal upheld –– re-sentence – aggravation – common assault – remorse – plea of guilty – general deterrence – whether to exercise of discretion under s 17 of Crimes (Sentencing) Act 2005 (ACT)

R v McLeod [2018] ACTSC 228 (SCC 60 of 2018)
Uploaded 23 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Theft – fraud against the Public Trustee of the ACT over a five year period – rolled  up counts – pleas of guilty – no previous criminal convictions – alcohol abuse – gambling addiction – considerable value of property obtained – vulnerable nature of victims – breach of trust – knowledge of financial systems of Public Trustee allowed offences to occur – co-offenders – whether culpability is greater than co-offenders – whether sentences should incorporate a degree of concurrency

SA v Badenhorst [2018] ACTSC 216
Uploaded 23 August 2018
APPEALS – Appeal from Magistrates Court – offence of assault – whether magistrate fell into error in refusing the application for an adjournment – appeal upheld – fresh evidence – re-sentence – matters of mitigation – whether to make a non-conviction order – mandatory considerations –  Crimes (Sentencing) Act 2005 (ACT) s 17(3)

Dong v Song (No 3) [2018] ACTSC 226
Uploaded 23 August 2018
COSTS – where offer made during mediation – where separate offer made purportedly pursuant to rule 1002 of the Civil Procedure Rules 2006 – no offer of genuine compromise – whether defendants unreasonably rejected a later genuine offer made during the hearing – application to vary costs order dismissed

Primavera Holdings Pty Ltd v Golding [2018] ACTCA 30
Uploaded 23 August 2018
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Costs of hearing application for leave to appeal out of time – Application withdrawn

R v Davidson [2018] ACTSC 227 (SCC 28 of 2018; SCC 29 of 2018)
Uploaded 22 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – receiving stolen property – trafficking methylamphetamine – trafficking MDMA – trafficking heroin – trafficking cocaine – transfer charges – possession of ammunition – dealing in the proceeds of crime – pleas of guilty – extensive psychiatric history – objective seriousness of offence of receiving stolen property – whether reasonable prospects of rehabilitation – whether concurrency is appropriate with respect to drug trafficking offences

R v NO [2017] ACTSC 421
Uploaded 20 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of tendency evidence – sexual offences – single tendency incident alleged – evidence not of significant probative value – application dismissed

Wu v Li [2018] ACTSC 224
Uploaded 20 August 2018
CORPORATIONS – members rights and remedies – application in the Court’s inherent jurisdiction for leave to commence a derivative action – where company in liquidation – where liquidator supports application – where proposed actions potentially barred by limitation statute – whether application made in good faith – where collateral purpose not improper – where company indemnified by applicant – application granted

ACT v Gillan; Gillan v ACT [2018] ACTSC 223
Uploaded 17 August 2018
APPEAL – APPEAL AND NEW TRIAL – Appeal from Magistrates Court – medical negligence – failure to explain treatment options – economic loss – errors in assessment of damages – appeal upheld.

Lewis v Australian Capital Territory (No 8) [2018] ACTSC 218
Uploaded 17 August 2018
PRACTICE AND PROCEDURE – Costs – Compensation for unlawful imprisonment – where successful party awarded nominal damages – relevance of conduct before proceedings commenced – official error – absence of apology or agreement to mediate
PRACTICE AND PROCEDURE – Natural Justice – failure to take into account submissions in reply – need to reconsider proceedings – natural justice required
PRACTICE AND PROCEDURE – Judgments and Orders – finality in litigation – power to recall and reconsider order made before being perfected

R v West [2018] ACTSC 222 (SCC 84 of 2018; SCC 85 of 2018; SCC 179 of 2015)
Uploaded 16 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Burglary, theft and dishonestly drive vehicle taken without consent – sentencing purposes – rehabilitation – offences committed on conditional liberty

R v Aitchison (No 3) [2018] ACTSC 214 (SCC 291 of 2016)
Uploaded 16 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a young person – act of indecency with a young person

R v Gotte [2018] ACTSC 219 (SCC 312 of 2017; SCC 313 of 2017)
Uploaded 16 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted aggravated robbery – minor theft

Jensen v Croatto [2018] ACTSC 213
Uploaded 15 August 2018
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentencing decision – offence against Animal Welfare Act 1992, s 8(2)(b) of failure to take reasonable steps to alleviate pain – whether error in making order under s 101 of the Act – whether magistrate obliged to accept factual statement by counsel for the offender – reparation order set aside – appeal otherwise dismissed

R v Sikoulabot [2018] ACTSC 217 (SCC 3 of 2018)
Uploaded 15 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – intensive corrections order assessment – good prospects of rehabilitation

Leda Commercial Properties Pty Ltd v Tuggeranong Town Centre Pty Ltd [2018] ACTCA 27
Uploaded 14 August 2018
APPEAL – PRACTICE AND PROCEDURE – Application for further time to file and serve a notice of contention – absence of disclosure statement raised in proceedings at first instance – no submissions made in support of claim for breach of statutory duty – primary judge did not deal with argument now sought to be raised by applicant in Court of Appeal – application proposes to use alleged absence of disclosure statement in different way – legal characterisation – no sufficient explanation for delay – whether to exercise discretion

R v Lang [2018] ACTSC 215 (SCC 100 of 2017)
Uploaded 14 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – money laundering – sentencing purposes – general deterrence – denunciation

Meyers v Commissioner for Social Housing [2018] ACTSC 193
Uploaded 13 August 2018
TORTS – NEGLIGENCE – Negligence and nuisance – essentials of action for negligence – duty of care – public housing tenant mauled by dogs – dogs owned by visitor of another tenant – whether Commissioner for Social Housing owed a duty of care to the plaintiff – whether presence of dogs formed part of the “state of the premises under s 168 of the Civil Law (Wrongs) Act 2002 (ACT) – no breach of duty established – whether Commissioner breached common law duty of care or duty under s 168 – whether breach of duty of care caused the harm suffered by the plaintiff – no causal link between any breach of duty and the injuries suffered by the plaintiff – whether the Territory owed a duty of care to the plaintiff – no duty of care established – plaintiff’s claims dismissed
LANDLORD AND TENANT – TENANCY AGREEMENT - Standard residential tenancy terms under Residential Tenancies Act 1997 (ACT) – complaints by tenants about dogs owned by visitors of another tenant – steps taken by Commissioner for Social Housing in response to complaints – tenant subsequently attacked by dogs – whether Commissioner breached cl 52 of plaintiff’s tenancy agreement by permitting interference with peace, comfort or privacy of the tenant – no breach of tenancy agreement – whether breach of the tenancy agreement caused harm suffered by the plaintiff – breach did not cause harm suffered by the plaintiff

NE v Pruckner [2018] ACTSC 212
Uploaded 13 August 2018
APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – appeal against non-association order – whether magistrate accorded procedural fairness before imposing non-association order – non-association order having the effect of separating married couple – order not sought by any party or mentioned in submissions – denial of procedural fairness established – appellant resentenced

R v Chatfield No 2 [2017] ACTSC 397
Uploaded 10 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Bail – jurisdiction – death of applicant’s sister found to be change in circumstances relevant to granting of bail – applicant’s obligations in relation to funeral and care of sister’s children – criteria for granting bail – real risk that applicant would not answer bail – history of evading arrest – recent failure to comply with intensive correction order – risk of offending while on bail raised by conceded offending during current custodial period – decision to refuse bail reached without reliance on unsubstantiated police suspicions.

R v Todkill [2018] ACTSC 182 (SCC 284 of 2016)
Uploaded 9 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offence of causing grievous bodily harm – significant violence – in company – conditional liberty –Pre-Sentence Report – remorse – willingness to participate in restorative justice – psychologist’s report – victim impact statements – testimonials – reasonable to good prospects for rehabilitation – youth – plea of guilty – deterrence – objectives of sentencing – sentence of full-time imprisonment – non-parole period – breach of good behaviour order

Sparway Pty Ltd v CPQ Corporation Pty Ltd [2018] ACTSC 210
Uploaded 8 August 2018
LANDLORD AND TENANT – Subleases - covenants - exercise of option to renew - validity

Canberra Cleaners Pty Ltd v Commissioner for ACT Revenue [2018] ACTSC 208
Uploaded 6 August 2018
ADMINISTRATIVE LAW – TAXATION AND REVENUE – judicial review – whether garnishee notices issued to debtors of plaintiffs ought be set aside – whether director’s compliance notices invalid – where notices issued required total income of the businesses to be paid to the Commissioner for ACT Revenue – whether hardship a relevant consideration – whether decisions unreasonable – whether amount of unpaid tax liability stated to be payable on some notices was ambiguous, confusing, incorrect or uncertain – effect of previous declaration of invalidity – those notices ought be set aside

Subasic v Williams [2018] ACTSC 207
Uploaded 3 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – appeal against sentence – whether sentence manifestly excessive – whether consideration of hardship on dependents.

D’Arcy v Caltex Australia Limited [2018] ACTSC 206
Uploaded 3 August 2018
TORTS – Personal injury – workplace accident re-lining underground petrol tanks – plaintiff claiming breach of duty of care – alleged breaches of various statutes – two defendants – liability of Fuel-Sys – whether there was contributory negligence on the part of the plaintiff – liability of Caltex – whether Caltex owed the plaintiff a duty of care – whether there was a relationship of agency - whether Caltex was an ‘occupier’ of the service station site – whether Caltex breached duty of care – assessment of damages – ‘Territory or State of Connection’

Perry v Pese [2018] ACTSC 205
Uploaded 2 August 2018
TORTS – NEGLIGENCE – Motor vehicle collision – personal injury – nature and extent of injury – calculation of damages

Lewis v Woolworths Limited [2018] ACTSC 200
Uploaded 2 August 2018
TORTS – NEGLIGENCE – Breach of duty admitted – whether defendant’s negligence caused harm – workplace accident – back pain following accident – aggravation of asymptomatic back condition – detrimental psychological impact of chronic pain – held workplace injury led to significant and long-term aggravation of back condition and with pain psychologically corrosive –significant uncertainty affecting assessment of damages – damages awarded – future economic loss assessed by way of a buffer

R v Klickovic [2018] ACTSC 141 (SCC 125 of 2017; SCC 126 of 2017)
Uploaded 2 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – forcible confinement – common assault – unusual domestic violence context – specific deterrence – general deterrence – not suitable for intensive corrections order – partially suspended sentence

R v DL [2018] ACTSC 142 (SCC 210 of 2017)
Uploaded 1 August 2018
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – act of indecency with person under the age of 10 – act of indecency with person under the age of 16 – incest – offender found guilty by jury – offender has not accepted guilt – course of conduct over a substantial period – punishment and general deterrence – custodial sentence