New Judgments and Sentences


Recent Court of Appeal, Supreme Court judgments and sentences:

R v Jacky [2019] ACTSC 123 (SCC 166 of 2017; SCC 169 of 2017)
Uploaded 15 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – robbery – plea of guilty – breach matters – transfer charge of driving while disqualified – consideration of s 69 of the Road Transport (General) Act 1999 (ACT) – poor criminal history – advances in addressing drug and alcohol abuse

R v Donald [2019] ACTSC 129 (SCC 251 of 2018)
Uploaded 14 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possessing child exploitation material – two charges of using a carriage service to access child pornography material – pleas of guilty – serious criminal offences – lower range of such offences – no prior convictions – prospects of rehabilitation appear to be good

R v Kennewell [2019] ACTSC 125 (SCC 235 of 2018; SCC 236 of 2018)
Uploaded 14 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – plea of guilty – need for specific deterrence – good prospects for rehabilitation

Williams v Hoang [2019] ACTSC 144
Uploaded 12 June 2019
PRACTICE & PROCEDURE – Settlement in respect of a person with a legal disability – arrangements for funds management – appointment of trustee – public trustee – proposed appointment of a trustee company

R v Butters [2019] ACTSC 143 (SCC 298 of 2018)
Uploaded 11 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – prospects of deportation – practicality of imposing an intensive corrections order – suspended sentence – good behaviour order

R v Cameron [2018] ACTSC 374 (SCC 95 of 2017)
Uploaded 7 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – plea of guilty in Magistrates Court – serious offence – aggravated robbery – participation in rehabilitation program

Hall v Russell [2018] ACTSC 377
Uploaded 7 June 2019
APPEAL – MAGISTRATES COURT APPEAL – Criminal Law - appeal from sentence imposed in Magistrates Court – whether sentence imposed in Magistrates Court was excessive

R v Boardman [2019] ACTSC 128 (SCC 244 of 2018; SCC 141 of 2016)
Uploaded 6 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – plea of guilty – on conditional liberty – resentence – substantial criminal history – drug abuse – need for specific deterrence – need to demonstrate the community’s disapproval of this type of offending behaviour

Martin v Abbott [2019] ACTSC 140
Uploaded 6 June 2019
CRIMINAL LAW – Magistrates Court Appeal – hearing in Magistrates Court – finding of guilt – appeal from finding of guilt – consideration of oral evidence before the magistrate – consideration of CCTV footage – whether the CCTV footage should have created reasonable doubt in the mind of the magistrate – whether the finding of guilt was unreasonable

Pesec v Consolidated Builders Limited [2019] ACTSC 142
Uploaded 6 June 2019
PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for discovery to identify right to claim relief and potential defences – whether an arguable cause of action exists

R v Holt [2018] ACTSC 376 (SCC 108 of 2018; SCC 109 of 2018; SCC 297 of 2018)
Uploaded 5 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in cannabis – possession of drug of dependence, namely methylamphetamine – late plea of guilty – significant criminal history – offences committed while on parole

Hargrave v Singh [2019] ACTSC 139
Uploaded 5 June 2019
PERSONAL INJURY – Pedestrian struck by taxi – taxi driven by first defendant – whether collision was caused by negligence of first defendant – whether plaintiff is guilty of contributory negligence – consideration of degree of intoxication of plaintiff – consideration of s 95 of the Civil Law (Wrongs) Act 2002 (ACT) – consideration of damages – consideration of the medical evidence

R v Merritt [2019] ACTSC 23 (SCC 45 of 2018)
Uploaded 5 June 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty – where offender at a ‘crossroads’ – intensive corrections order report

Follett v Mann [2019] ACTSC 141
Uploaded 4 June 2019
CRIMINAL LAW – APPEAL – Appeal against conviction – common assault – where arrest found to be unlawful under s 121 of the Casino Control Act 2006 (ACT) – where alternative source of power under s 218 of the Crimes Act 1900 (ACT) existed to arrest by way of “citizen’s arrest” – whether power to arrest impliedly requires element of necessity – whether appellant acted in self-defence – whether findings of guilt otherwise unsafe or unsatisfactory

Canberra Drilling Rigs Pty Ltd v Haides Pty Ltd [2019] ACTCA 15
Uploaded 28 May 2019
APPEAL – BUILDING AND CONSTRUCTION – Adjudication of progress payment claim under Building and Construction Industry (Security of Payment) Act 2009 (ACT) – whether payment claim served within period required by s 15(4)(b) – some work within 12 month period, some outside – whether fact that work within 12 month period was work done under relevant construction contract was a jurisdictional fact or whether claim that the work had been done under the construction contract sufficient to enliven adjudicator’s jurisdiction –  whether primary judge erred in not determining the terms of a construction contract – operation of s 15(4) of the Building and Construction Industry (Security of Payment) Act 2009 (ACT)

R v Cowling [2019] ACTSC 138 (SCC 159 of 2017; SCC 160 of 2017)
Uploaded 23 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unlawful Confinement – Chokes, Suffocates or Strangles – Common Assault  - Rehabilitation - Intensive Corrections Order

ED v The Queen [2019] ACTCA 10
Uploaded 17 May 2019
APPEAL – CRIMINAL LAW – Appeal against conviction – whether jury verdict is unreasonable – where offender is found guilty on some counts and not guilty on others – different verdicts based on same evidence not inherently unreasonable – Court to have regard to evidence before jury in assessing doubt – where there is a logical explanation for the acquittals

R v Featherstone; R v Bloxsome (No 2) [2019] ACTSC 90
Uploaded 17 May 2019
CRIMINAL LAW – PROCEDURE – application for separate trial – sexual assault allegations – previous application to sever dismissed – where refusal to sever leads to co-accused unable to elect for trial by judge alone trial – no prejudice in joint trial – application dismissed

Po’oi v The Queen [2019] ACTCA 13
Uploaded 17 May 2019
APPEAL – CRIMINAL LAW – Conviction appeal from ACT Supreme Court – whether guilty verdict was unreasonable because it was founded on same evidence and joint liability case as counts in which defendant found not guilty –  whether primary judge erred in directing jury as to recklessness – whether primary judge erred in not giving Markuleski and Murray directions

The Queen v Rappel [2019] ACTCA 11
Uploaded 17 May 2019
APPEAL – CRIMINAL LAW – Crown appeal against sentence – intentionally inflicting grievous bodily harm – whether sentence manifestly inadequate – whether primary judge erred in not giving reasons for imposing sentences concurrent with existing sentences – appeal allowed – respondent resentenced

R v BDI [2019] ACTSC 85
Uploaded 16 May 2019
CRIMINAL LAW – EVIDENCE – Pre-trial application – application to adduce tendency evidence – production and possession of child exploitation material – capturing visual data

Li & Anor v Wu [2019] ACTCA 14
Uploaded 16 May 2019
APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal against primary judgment – good faith and solid foundation in derivative action

R v Jones [2019] ACTSC 124 (SCC 267 of 2018; SCC 268 of 2018; SCC 269 of 2018; SCC 270 of 2018)
Uploaded 15 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Maintaining a sexual relationship with a young person – Assault occasioning actual bodily harm – Attempt to pervert the course of justice

Bourne v Australian Capital Territory [2019] ACTSC 127
Uploaded 15 May 2019
REVIEW – GENERAL PRINCIPLES – Application for review of Magistrates Court decision – interstate transfer of prisoner – whether or not transfer of prisoner to New South Wales is in the interests of justice – whether or not transfer of prisoner is harsh or oppressive – application for review refused

R v Green (No 2) [2019] ACTSC 126
Uploaded 15 May 2019
CRIMINAL LAW – EVIDENCE – Admissibility  –  discretionary and mandatory exclusions of evidence – whether representation can be admitted under s 65(2)(c) of the Evidence Act 2011 (ACT) – where representation inconsistent with another representation

Greenwood v Irving [2019] ACTCA 12
Uploaded 15 May 2019
APPEAL – CRIMINAL LAW – In General and Right of Appeal – whether conspiracy between Court and Director of Public Prosecutions to pervert the course of justice –  whether failure to take into account relevant considerations – whether erroneous findings – circumstances of significant delay – appeal dismissed

R v Featherstone; R v Bloxsome [2019] ACTSC 66
Uploaded 14 May 2019
CRIMINAL LAW – Pre-trial application – co-accused – application for separate trials – opposed by the Crown – sexual assault matters relating only to one co-accused – unfair prejudice

R v Johnson [2019] ACTSC 117 (SCC 96 of 2018; SCC 97 of 2018; SCC 104 of 2018; SCC 105 of 2018)
Uploaded 13 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –firearms offences – unauthorised possession of firearms and ammunition – drug offences – trafficable quantity of cannabis – Intensive Corrections Order – deemed not suitable – term of imprisonment

Ismail v Tate [2019] ACTSC 92
Uploaded 13 May 2019
CRIMINAL LAW – Appeal – Appeal from Magistrates Court –whether the conviction was unsafe and unsatisfactory

R v Campbell (No 3) [2019] ACTSC 121
Uploaded 10 May 2019
CRIMINAL LAW - EVIDENCE – Judicial discretion to admit or exclude evidence – whether representations amounted to consciousness of guilt – whether evidence should nevertheless be excluded under s 137 of the Evidence Act 2011 (ACT)

R v Slifkas [2019] ACTSC 40 (SCC 25 of 2018; SCC 26 of 2018)
Uploaded 10 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery in company – offender involved in opportunistic robbery of person walking home at night – plea of guilty to theft of car – obtaining property by deception – limited criminal history – some prospects of rehabilitation – sentence of imprisonment to be served by intensive correction

R v Zonneveld [2019] ACTSC 122 (SCC 286 of 2016)
Uploaded 10 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspire to commit bestiality

R v Sikounnabouth [2019] ACTSC 119 (SCC 243 of 2018)
Uploaded 10 May 2019 
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – accessory after the fact to murder – pleas of guilty

Dawson v The Queen [2019] ACTCA 9
Uploaded 8 May 2019
APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – Where the appellant was sentenced for two sets of offences – Degree of concurrency – Whether the sentencing judge failed to properly consider totality – Appellant resentenced

Chambers v Smorhun; R v Chambers [2019] ACTSC 118 (SCA 55 of 2018; SCC 101 of 2018)
Uploaded 8 May 2019
APPEAL – GENERAL PRINCIPLES – Appeal against sentence of Magistrates Court – manifest harsh and excessive – non-parole period 92 per cent of head sentence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – plea of guilty

Ramalingam v McCue [2019] ACTSC 114
Uploaded 8 May 2019
CRIMINAL LAW – APPEAL – Evidence – appeal against conviction – common assault and damage to property offences – whether Magistrate erred in admitting a non-related previous decision as relationship evidence – appeal granted and matter remitted to Magistrates Court

Liu v Milner [2019] ACTSC 115
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – appeal against sentence – whether sentence manifestly excessive

R v Hudson [2019] ACTSC 110 (SCC 41 of 2019; SCC 42 of 2019)
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use a carriage service to harass – Make demand accompanied by threat – Threat to inflict grievous bodily harm – Blackmail – Arson – Recklessly inflict actual bodily harm – Family violence – Lengthy criminal history – Additional offences whilst in custody – Continued association with antisocial peers – Whether the offender has a good prospect of rehabilitation – Whether reparation order should be made

R v Green [2019] ACTSC 87 (SCC 119 of 2018; SCC 120 of 2018)
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – causing grievous bodily harm – offender rides unregistered and uninsured electric bicycle along shared path and strikes child riding on path – child suffers serious injuries including brain injury – offender found guilty at trial – limited criminal history but criminal history does not fully reflect the history of offending behaviour – polysubstance abuse – history of sexual abuse – custodial sentence and fines

R v Morales [2019] ACTSC 88 (SCC 222 of 2018; SCC 223 of 2018; SCC 284 of 2018)
Uploaded 8 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time – attempted aggravated robbery of taxi driver at night while carrying a sheathed knife – dishonestly ride in a motor vehicle without consent – possess prohibited weapon – guilty pleas – young offender played less significant role to co-offender in offending conduct – criminal history – abuse of illicit drugs – parity considered – prospects of rehabilitation considered – sentence of imprisonment to be served by way of intensive correction

R v Muell [2019] ACTSC 77 (SCC 92 of 2018; SCC 238 of 2018)
Uploaded 7 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time – aggravated burglary of underground carpark of apartment complex where vehicle taken and motorbike stolen – aggravated burglary of Subway store – attempted aggravated robbery of taxi driver at night while carrying a handgun and knife – young offender with more significant role than co-offender in offending conduct – guilty pleas – poor criminal history – abuse of illicit drugs – parity considered – prospects of rehabilitation considered – general deterrence, punishment, denunciation and protection to the community – custodial sentences

R v Brown [2019] ACTSC 59 (SCC 125 of 2018; SCC 127 of 2018)
Uploaded 7 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled substance other than cannabis – possessing a prohibited substance – unauthorised possession of a prohibited weapon – unlawful possession of stolen property – additional offences taken into account

R v Norton [2019] ACTSC 111 (SCC 195 of 2018; SCC 196 of 2018)
Uploaded 6 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drive motor vehicle without consent – plea of guilty

Owen v Owen [2019] ACTSC 108
Uploaded 6 May 2019
PRACTICE AND PROCEDURE – FREEZING ORDER – Where the Respondent is the judgment debtor in another court – Whether there is a danger that a judgment debt will go unsatisfied because of the disposal of assets – Whether balance of convenience favours the making of the order

R v Latu [2019] ACTSC 109 (SCC 193 of 2018; SCC 194 of 2018)
Uploaded 2 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Causing grievous bodily harm – Where the offence involves a one-punch assault – Where the offence was committed with a co-offender – Parity of sentence

R v Folauhola [2019] ACTSC 107 (SCC 307 of 2018; SCC 308 of 2018)
Uploaded 2 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – firearms offences - possession of prohibited firearms – additional offences – pleas of guilty – intensive corrections order

In the Estate of Koppie [2019] ACTSC 106
Uploaded 2 May 2019
SUCCESSION – WILLS – Section 31 of the Wills Act 1968 (ACT) – construction and effect of testamentary dispositions – child of testatrix predeceased leaving issue – whether statutory substitution of the surviving issue should be made – whether contrary intention apparent from words of the will or extrinsic evidence

Liu v A & A Martins Pty Limited [2019] ACTCA 8
Uploaded 2 May 2019
APPEAL – Appeal from decision of the ACT Supreme Court – claim for restitution based on unjust enrichment – whether the respondent was entitled to recover on restitutionary grounds – whether the respondent was doing work at the appellants’ request – whether Anshun estoppel could be raised – whether the claim was an abuse of process

R v Hawkins [2019] ACTSC 103 (SCC150B of 2018; SCC315 of 2018; SCC70 of 2019)
Uploaded 1 May 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – negligent driving inflicting grievous bodily harm – dishonestly driving a motor vehicle without consent – guilty pleas – disadvantaged background

R v Campbell (No 2) [2019] ACTSC 105
Uploaded 1 May 2019
EVIDENCE – Admissibility and Relevancy – Witnesses – hearsay – exception if maker unavailable  - s 65(2)(b) and (d) of the Evidence Act 2011 (ACT) – reliability of representations – representations of an accomplice

R v Bailey [2019] ACTSC 102 (SCC 263 of 2018; SCC 264 of 2018)
Uploaded 30 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – common assault – plea of guilty – intensive corrections order

R v NQ [2019] ACTSC 51 (SCC 239 of 2018; SCC 240 of 2018)
Uploaded 26 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated burglary – aggravated robbery – dishonestly take or ride motor vehicle – damaging property – offender a child at the time of offending – uncertain prospects of rehabilitation

R v Tonkin [2019] ACTSC 101 (SCC 314 of 2018)
Uploaded 23 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Assault occasioning actual bodily harm – Forcible confinement – Recklessly damage property – Family violence offences – When the offence was committed while the offender was on conditional liberty – When prospects of rehabilitation unclear

McLennan v Clapham & Ors (No 2) [2019] ACTSC 100
Uploaded 23 April 2019
COSTS – Whether defendants were really the successful party – whether Magistrates Court would have had jurisdiction to hear proceedings brought in the Supreme Court so that r 1725 of the Court Procedures Rules 2006 (ACT) applies – whether it was unreasonable for the plaintiffs to reject a Calderbank offer

Re Section 55 Pty Ltd (as trustee for the XLNS Unit Trust) [2019] ACTSC 99
Uploaded 23 April 2019
TRUST – Application for judicial advice – where trust established for single purpose investment – where some beneficiaries threaten litigation regarding outstanding invoices and allegations of mismanagement of trust – whether trustee is justified in defending proceedings or paying the invoices – whether auditor should be appointed

Carr v Needham [2019] ACTSC 98
Uploaded 23 April 2019
PRACTICE AND PROCEDURE – PLEADINGS – Admissions – application to amend defence to plead contributory negligence – whether admission during pre-litigation compulsory processes precludes an insurer from adopting a different position once proceedings have been commenced.
STATUTORY INTERPRETATION – Road Transport (Third-Party Insurance) Act 2008 (ACT), Pt 4.2 – Whether statute precludes an insurer who does not raise contributory negligence before litigation commences from subsequently pleading contributory negligence in its defence

R v Green (No 3) [2019] ACTSC 96
Uploaded 16 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –  application for directed verdict – whether defect in the evidence was present – absence of evidence of element of the offence – application granted
STATUTES – Interpretation – word and phrases – s 28 Crimes Act 1900 (ACT) - meaning of the words “choke”, “strangle” and “suffocate” – whether the offence requires the victim to have stopped breathing

R v Beowulf (No 2) [2019] ACTSC 82
Uploaded 16 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application for a verdict of not guilty under s 287 of Crimes Act 1900 (ACT) – Where the co-accused are each charged with murder by way of joint commission – Where the prosecution case is entirely circumstantial – Whether there is evidence of agreement between the accused to commit an offence – Whether there is evidence of causation – Whether taken at its highest the evidence is capable of supporting a verdict of guilty

R v Beowulf [2019] ACTSC 64
Uploaded 16 April 2019
EVIDENCE – ADMISSIBILITY – Relevance – Where contested forensic evidence forms part of a circumstantial case for alleged joint commission of murder – Where presumptive testing indicates the presence of the deceased’s DNA and the presence of blood – Where confirmatory testing does not indicate the presence of human blood – Whether the contested evidence is relevant EVIDENCE – ADMISSIBILITY – Unfair prejudice – Where presumptive testing indicates the presence of the deceased’s DNA and the presence of blood – Where insufficient material for confirmatory testing for human blood – Whether the contested evidence is probative – Whether the jury may place undue weight on the contested evidence

R v Kisun (No 4) [2018] ACTSC 293
Uploaded 15 April 2019
CRIMINAL LAW – EVIDENCE – application for leave to cross examine complainant in relation to sexual activities – prior inconsistent statement – relevant to fact in issue – leave granted

R v Adair [2019] ACTSC 97
Uploaded 15 April 2019
CRIMINAL LAW – GENERAL MATTERS - Criminal Liability and Capacity – Trial by judge alone – arson – analysis of physical and fault elements – physical element proved – fault element not established beyond reasonable doubt – accused found not guilty.

R v Schwalm [2019] ACTSC 35 (SCC 260 of 2018; SCC 261 of 2018)
Uploaded 15 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –Aggravated burglary – theft – possession of property suspected of being stolen or otherwise unlawfully obtained – damage to property not exceeding $5,000 in value – plea of guilty – extensive criminal history – illicit polysubstance abuse

R v Ho [2019] ACTSC 41 (SCC 256 of 2018)
Uploaded 15 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –  cultivate a commercial quantity of a controlled plant – plea of guilty – offender provided information to police – no criminal history – considerable degree of remorse

R v Kisun (No 3) [2018] ACTSC 370
Uploaded 12 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoena – s 31 of the Trans-Tasman Proceedings Act 2010 (Cth) – service in New Zealand – evidence of witness would be significant for tendency purposes and providing context to the complaint evidence – evidence could not be obtained by other means without significantly greater expense and inconvenience to the persons named
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – taking of evidence by audio-visual link from New Zealand – s 50 of the Trans-Tasman Proceedings Act 2010 (Cth) – evidence more conveniently taken from New Zealand

The Owners – Units Plan No. 3676 v Morris Construction Corporation Pty Ltd (No 2) [2019] ACTSC 95
Uploaded 12 April 2019 
PRACTICE AND PROCEDURE – PLEADINGS – Court Procedures Rules 2006 (ACT) rr 1145 – application to strike out paragraphs of statement of claim – application to amend claim – where disputed paragraphs fail to plead material fact necessary to support breach of duty of care – leave granted to re-plead

R v Kisun (No 5) [2018] ACTSC 311 (SCC 98 of 2016)
Uploaded 12 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – acts of indecency – acts against children – historical offences – offences while teacher at Marist College – second trial following hung jury – additional offences charged – tendency evidence relating to uncharged offences in New Zealand – age of offender and period between trials considered – fully suspended sentence imposed

Faris v Savage [2019] ACTSC 94
Uploaded 11 April 2019
PRACTICE AND PROCEDURE – SECURITY FOR COSTS –Appeal from Magistrates Court – whether the appellant is impecunious – whether the appeal is without merit – security for costs ordered

Ashton and Ors v The Australian Capital Territory [2019] ACTSC 93
Uploaded 11 April 2019
PRACTICE AND PROCEDURE – PRELIMINARY DISCOVERY – Application for discovery to identify potential defendants and right to claim relief – whether documents reasonably necessary – where pre-action discovery must not impose a disproportionate burden


R v Kisun (No 2) [2018] ACTSC 85
Uploaded 8 April 2019
CRIMINAL LAW – Pre-Trial Application – Tendency - Awaiting trial on six counts of indecent assault on a male -  the “fact in issue” at the accused’s trial will be whether he did those acts as alleged by the Crown – whether the events alleged have significant probative value – whether the risk of unfair prejudice may be ameliorated  - evidence which the Crown seeks to lead as tendency evidence with regard to incidents 1 to 6 and 8 to 13 are strongly probative – same cannot be said with respect to incident 7 -  passage of time is of less significance in cases of allegation of sexual attraction to children than in other cases – significant similarities

R v ED [2018] ACTSC 62
Uploaded 8 April 2019
CRIMINAL LAW – EVIDENCE – Application to adduce tendency evidence – tendency of the accused to have a sexual interest in the complainant – tendency of the accused to act on his interest – whether proposed evidence has significant probative value – whether probative value outweighs prejudicial effect

R v Chute [2017] ACTSC 246
Uploaded 8 April 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Fitness to plead – investigation into the fitness of the applicant  – applicant has mild dementia and cognitive impairment – permanent and progressive condition –  applicant not fit to plead – s 311 of the Crimes Act 1900 (ACT)

R v Sharp [2019] ACTCA 7
Uploaded 8 April 2019
APPEAL – CRIMINAL LAW – Crown appeal against sentence – unlawful confinement – whether sentence manifestly inadequate – no appeal from appeals imposed on two co-offenders – further co-offender resentenced on appeal – whether interference with the appellant’s sentence would create unjustified parity between sentences imposed on co-offenders – appeal allowed – appellant resentenced

R v Chute (No 11) [2019] ACTSC 91
Uploaded 5 April
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Historical child sexual offences – whether indecent assault followed by the infliction of corporal punishment constitutes “an offence involving actual or threatened violence” and therefore a “serious offence” for the purposes of s 319 of the Crimes Act 1900 (ACT)  – it does not
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Special hearing – whether appropriate to require accused person to submit to the jurisdiction of the ACAT – dementia patient with health problems – no utility in making orders requiring submission to ACAT

Evans v Williams & Ors [2019] ACTSC 84
Uploaded 3 April 2019
APPEAL – GENERAL PRINCIPLES – Appeal from Magistrate – Appeal against sentence – multiple offences – individual sentences and total aggregate sentence manifestly excessive

Manny v David Lardner & Associates (No 2) [2019] ACTSC 86
Uploaded 3 April 2019
CORPORATIONS – Members rights and remedies – application in the Court’s inherent jurisdiction for leave to commence a derivative action – where companies in liquidation – where liquidator neither supports nor opposes the application – whether conditions should be imposed

R v Nozhat [2019] ACTSC 81
Uploaded 3 April 2019
CRIMINAL LAW – Particular offences – drug offences – disputed facts hearing for the purposes of sentence – importation of a commercial quantity of border controlled drug – fault element required under section 307.1 Criminal Code (Cth) – recklessness – time at which respondent became reckless as to whether substance was a border controlled drug

Southwell v Staite (No 2) [2019] ACTSC 83
Uploaded 29 March 2019
COSTS – Indemnity costs – whether it was unreasonable to reject offers of settlement made before and during proceedings

R v Chute (No 9) [2019] ACTSC 69
Uploaded 29 March 2019
CRIMINAL LAW –– JURISDICTION, PRACTICE AND PROCEDURE – Special hearing – participation of accused – application for arraignment via audiovisual link from a remote location – response to charges from accused not required – no objection by Crown – application allowed
CRIMINAL LAW –– EVIDENCE – Application for the accused to be excused from attending special hearing – current bail undertaking to appear – accused located in New South Wales – accused is of poor health – accused not fit to plead – excusal of the accused would cause no forensic disadvantage – application allowed

R v Chute (No 8) [2019] ACTSC 68
Uploaded 29 March 2019
CRIMINAL LAW – EVIDENCE – Application to adduce evidence of complainant’s prior sexual activities – operation of s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – other alleged abusers – change in evidence may show complainant’s evidence unreliable – leave granted

R v Chute (No 7) [2019] ACTSC 67
Uploaded 29 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Stay of proceedings – applicant accused of sexual offences against children – found unfit to plead – application for permanent stay based on poor health – application for permanent stay based on recent disclosure of complainant as to incorrect identification of other persons – application for permanent stay based on alleged failure by police to properly investigate allegations – whether grounds for stay involves a “significant change in circumstances” since previous application for stay for purposes of r 4750 of the Court Procedures Rules 2006 (ACT) – permanent stay refused

Lee v McGrath [2019] ACTCA 6
Uploaded 29 March 2019
NEGLIGENCE – BREACH OF DUTY OF CARE – whether trial judge erred in finding that the respondent had failed to keep a proper lookout – he did not
NEGLIGENCE – CAUSATION – whether trial judge erred in finding that the accident was unavoidable – he did not
NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – whether trial judge erred in his process of reasoning by considering irrelevant New South Wales law – whether trial judge erred in his apportionment of liability – he did not

R v Chute (No 6) [2019] ACTSC 53
Uploaded 29 March 2019
CRIMINAL LAW – EVIDENCE – TENDENCY EVIDENCE– JURISDICTION, PRACTICE AND PROCEDURE – alleged sexual offences against multiple children – tendency evidence admissible in relation charges relating to each single complainant – tendency evidence admissible as between complainants

R v Chute (No 5) [2019] ACTSC 52
Uploaded 29 March 2019
CRIMINAL LAW – EVIDENCE – Leave to issue subpoenas – subpoenas may disclose protected confidences –  leave for the disclosure of a protected confidence – Division 4.4.3 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – legitimate forensic purpose – whether court satisfied an arguable case – whether documents would materially assist applicant’s case in the proceedings – evidence that complainant may have cognitive difficulties – evidence that complainant may not have recalled events throughout the period they are alleged to have occurred

Bailey-Brown v Southern New South Wales Local Health District [2019] ACTSC 78
Uploaded 28 March 2019
PRACTICE AND PROCEDURE – Cross vesting legislation – application to transfer under Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 5(2)(b) – where there are a preponderance of connecting factors with New South Wales – where personal convenience of the plaintiffs strongly favours the Territory –  whether transfer in the interests of justice

McIntosh v Electaire Pty Ltd [2019] ACTSC 76
Uploaded 28 March 2019
PRACTICE AND PROCEDURE – Application to amend statement of claim to add new cause of action – whether amendments arise out of substantially the same facts – whether it is appropriate to grant leave under Court Procedure Rules 2006 (ACT) r 503(4) – where explanation unsatisfactory but nature of amendments limited to matters of law and no prejudice to defendant – application granted

R v Beath-Williams [2019] ACTSC 80
Uploaded 28 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – burglary – theft – re-sentence for prior conviction – breach of suspended sentence – suitable for Intensive Correction Order

R v Chute (No 10) [2019] ACTSC 73
Uploaded 28 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Historical child sexual offences – special hearing due to unfitness to plead – special hearing conducted by judge alone – allegations of indecent assault and commission of an act of indecency – whether proved beyond reasonable doubt that accused “engaged in the conduct required for the offence charged” – evidence of complainants not challenged

Hill v The Council of the Law Society of the ACT [2019] ACTSC 79
Uploaded 27 March 2019
ADMINISTRATIVE LAW – Judicial Review – Application for judicial review of decisions to appoint a supervisor and a manager to a law practice – plaintiff seeking relief by way of declarations pursuant to s 17(c) of the Administrative Decisions (Judicial Review) Act 1989 (ACT) – plaintiff seeking relief by way of a declaration pursuant to r 2900(2) of the Court Procedure Rules 2006 (ACT) and/or the Court’s inherent jurisdiction – whether the instruments of appointments of the supervisor and the manager complied with provisions of the Legal Profession Act 2006 (ACT) – whether the amended instrument of appointment of the manager complied with provisions of the Legal Profession Act 2006 (ACT) – extension of time required to commence proceedings – whether an extension of time should be granted

R v Wright (No 2) [2019] ACTSC 46 (SCC 241 of 2017; SCC 242 of 2017; SCC 343 of 2017)
Uploaded 27 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – reparation order – limitation of period for compliance with reparation order made a condition of good behaviour order – no evidence of assets or liabilities – resentence

R v Yuen [2019] ACTSC 70 (SCC 107 of 2018)
Uploaded 25 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflicting grievous bodily harm – extra curial punishment – offence committed in custody – plea of guilty

R v Waghorn [2019] ACTSC 72 (SCC 276 of 2018)
Uploaded 25 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – recklessly inflict grievous bodily harm – plea of guilty

Lewis v Storey [2019] ACTSC 74
Uploaded 22 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – appeal against sentence – whether sentence manifestly excessive – whether the Magistrate erred in describing the offence as “attempted murder” – where the Magistrate incorrectly calculated discounts for the pleas of guilty

Jakaj v Kinnane [2019] ACTSC 71
Uploaded 22 March 2019
JUDICIAL REVIEW – Application for review of a decision of a magistrate – whether magistrate had jurisdiction to conduct hearing – whether oath of office sworn by magistrate lawful – whether lawful procedure for passing legislation had been followed – whether denial of procedural fairness

R v MC [2018] ACTSC 274
Uploaded 20 March 2019
CRIMINAL LAW -- JURISDICTION, PRACTICE AND PROCEDURE -- Bail -- application for bail to be revoked following guilty verdict at trial -- child sexual offences -- bail revoked

R v Brown [2018] ACTSC 116
Uploaded 20 March 2019
CRIMINAL LAW – BAIL –  Jurisdiction of Supreme Court to hear a bail application – Whether prior bail hearing was a bail review pursuant to s 42A of the Bail Act 1992 (ACT) - Court has no jurisdiction to hear the application

R v Green [2019] ACTSC 43
Uploaded 19 March 2019
EVIDENCE – Admissibility of previous representations – hearsay evidence – maker of previous representations not available –whether the exception in s 65 of the Evidence Act 2011 (ACT) applies – previous representations fall into two categories – representations made by unavailable witness to third parties regarding what the complainant said to the witness – representations made by unavailable witness to third parties regarding  witness’ observations of the complainant – complainant made a statutory declaration repudiating complaint – whether the Crown’s purpose is to adduce representations for the purpose of establishing the truth of those representations – consideration of admissibility of prior consistent statements of complainants in non-sexual proceedings – whether previous representations are first-hand hearsay – consideration of relevancy of previous representations

R v Smith [2019] ACTSC 65 (SCC 74 of 2018; SCC 75 of 2018; SCC 76 of 2018)
Uploaded 19 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – culpable driving causing death – culpable driving involving negligence – unlicensed driver – using an uninsured motor vehicle – using an unregistered registrable vehicle – seatbelt not properly adjusted and fastened – drug driving – not giving assistance after accident causing death – pleas of guilty

R v ED [2018] ACTSC 366 (SCC 314 of 2017)
Uploaded 18 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – sexual intercourse with a person aged under 16 years – attempt sexual intercourse with a person aged under 16 years – acts of indecency on a person aged under 16 years – found guilty by jury – whether the offender’s intellectual impairments had an impact on his moral culpability – good prospects for rehabilitation

Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1
Uploaded 18 March 2019
LEGAL PRACTITIONERS – DISCIPLINARY PROCEEDING – Application for removal from the roll of legal practitioners – When ACAT recommended that the practitioner’s name be removed from the roll – Where the practitioner was subject to multiple disciplinary proceedings – Whether the practitioner is a fit and proper person to practise law

R v KD [2019] ACTSC 62 (SCC 143 of 2018)
Uploaded 15 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempted sexual intercourse without consent – plea of guilty – family violence context

Capital Recycling Solutions Pty Ltd v Planning and Land Authority of the ACT [2019] ACTSC 58
Uploaded 15 March 2019
ADMINISTRATIVE LAW – Judicial review – where conditional development approval granted for development application – where a delegate later changed the decision and refused the development application when no further application had been made – whether delegate had power to intervene and reverse the decision – later decision invalid
STATUTORY INTERPRETATION – Whether s 180 of the Legislation Act 2001 (ACT) is displaced by a contrary intention in the Planning and Development Act 2007 (ACT)

R v MC (No 2) [2019] ACTSC 61 (SCC 134 of 2016; SCC 28 of 2017)
Uploaded 15 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic sexual offences – offender found guilty by a jury - indecent assault on a person under the age of 16 – carnal knowledge of a person under the age of 10 – delay

Bourbon Street Kitchen Pty Ltd v Sion Pty Ltd [2019] ACTSC 60
Uploaded 14 March 2019
COMMERCIAL LEASE – termination of lease by Landlord – contrary to s 122 of the Leases (Commercial and Retail) Act 2001 (ACT) – tenant locked out of premises – injunctive relief sought

R v Hinder [2019] ACTSC 26
Uploaded 13 March 2019
EVIDENCE – Admissibility of identification evidence – whether the identification evidence is visual identification evidence – whether the identification was made under intentional influence to identify the accused – admissibility of alleged admissions by accused – whether the accused made statements in the course of questioning by police per s 23V of the Crimes Act 1914 (Cth)

R v Hinder [2019] ACTSC 57
Uploaded 13 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – trial by judge alone – aggravated robbery – identification evidence – verdict

In the Estate of Rodopoulos [2019] ACTSC 56
Uploaded 12 March 2019
WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT)

In the Estate of Ruimao Liu deceased [2019] ACTSC 49
Uploaded 8 March 2019
WILLS, PROBATE & ADMINISTRATION – Administration and Probate Act 1929 (ACT) – testamentary capacity – where testator in advanced stages of cancer executed a will four weeks before death excluding wife and only child – whether testator lacked requisite mental capacity to make the will – whether testator suffering from insane delusion – where onus on person propounding the will to satisfy the court that the testator retained mental powers to the requisite extent – onus not discharged – letters of administration granted to only surviving daughter without security

R v Sullivan [2019] ACTSC 38 (SCC 147 of 2018)
Uploaded 6 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – aggravated robbery – extensive criminal history – good prospects for rehabilitation – sentence served by way of intensive correction order – general deterrence – substance abuse

v NX [2019] ACTSC 55
Uploaded 6 March 2019
CRIMINAL LAW – EVIDENCE – application to adduce evidence of complainant’s prior sexual activities – operation of s 76 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – operation of s 78 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 76 does not apply to evidence of sexual activities of complainant and accused

R v Saran [2018] ACTSC 234
Uploaded 5 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Pre-trial application – admissibility of expert evidence – sexual offences - whether witness has ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2011 – leave not granted

R v Chronopoulos [2018] ACTSC 290
Uploaded 5 March 2019
CRIMINAL LAW – PRE-TRIAL APPLICATION – application to adjourn trial date – cross application to stay proceedings until costs of accused are paid – unfairness to applicant – conditional stay of proceedings granted

R v Woods; R v Mathews; R v Mathews [2019] ACTSC 33 (SCC 192 of 2018; SCC 188 of 2018; SCC 190 of 2018)
Uploaded 5 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – commonwealth offences – dishonestly obtaining a financial advantage by deception – co-offenders – pleas of guilty – delay

In the Estate of Olga Hart; Ross v Gordon [2019] ACTSC 48
Uploaded 4 March 2019
SUCCESSION – Application to set aside caveat on probate – whether possible undue influence claim – where no doubt that grant of probate has been established – caveat set aside
PRACTICE AND PROCEDURE – DISCOVERY AND INTERROGATORIES – application for discovery to identify right to claim relief – where no tangible basis for an action based on undue influence established – where documents requested not capable of shedding light on other possible claims being considered – application dismissed

Steed v McDougall [2019] ACTSC 36
Uploaded 4 March 2019
TORTS – NEGLIGENCE – Motor vehicle accident – collision between motor vehicle emerging from driveway and postal motorcyclist – whether defendant breached duty of care – whether plaintiff was contributorily negligent – calculation of damages

R v Dimitrov [2018] ACTSC 367 (SCC 181 of 2018; SCC 182 of 2018)
Uploaded 4 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – two counts of aggravated burglary in company and with a hammer – assault occasioning actual bodily harm – trespass – having an offensive weapon with intent to use the weapon to commit an offence involving actual or threatened violence – resisting a public official – significant criminal history – guilty pleas – youth relative to co-offender taken into account – difficult background – significant brain injury – limited education – history of illicit substance abuse – custodial sentence served by way of intensive correction

R v Eastman (No 50) [2018] ACTSC 321
Uploaded 4 March 2019
CRIMINAL LAW – PRACTICE AND PROCEDURE – Directions to jury – Need for trial judge to give direction pursuant to Burns v The Queen (1975) 132 CLR 258 (‘Burns direction’) where prosecution relies on confession or admission - jury must be satisfied beyond reasonable doubt that confession or admission of guilt to crime made by accused and that confession or admission truthful – Burns direction given in this matter although not required to be given in every circumstance

R v Eastman (No 49) [2018] ACTSC 320
Uploaded 4 March 2019
CRIMINAL LAW – PRACTICE AND PROCEDURE – Direction to jury – application that trial judge make direction that the accused has suffered forensic disadvantage

R v Saran [2019] ACTSC 37 (SCC 119 of 2017)
Uploaded 4 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trial by jury - guilty verdict – act of indecency without consent – sexual intercourse without consent – relevance of likely deportation – hardship to family not exceptional

R v Eastman (No 48) [2018] ACTSC 276
Uploaded 4 March 2019
CRIMINAL LAW – EVIDENCE  – whether prosecution entitled to rely upon evidence as establishing consciousness of guilt

R v Eastman (No 47) [2018] ACTSC 263
Uploaded 4 March 2019
CRIMINAL LAW – Evidence – Admissibility of parts of evidence given by accused at a previous trial

R v Eastman (No 46) [2018] ACTSC 203
Uploaded 4 March 2019
CRIMINAL LAW – EVIDENCE – Whether hearsay evidence of a witness’s wife presented by the prosecution is admissible pursuant to s 65(9) of the Evidence Act 2011 (ACT) – whether the opinion of a wife about her husband’s state of mind is admissible pursuant to s 78 of the Evidence Act 2011 (ACT)

R v Eastman (No 45) [2018] ACTSC 197
Uploaded 4 March 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence of previous representations in s 67 notices filed by the prosecution – consideration of s 43 of the Evidence Act 2011 (ACT) where no witness is to give evidence – if evidence of a prior representation is admitted then evidence of a prior inconsistent representation can be admitted pursuant to s 108A of the Evidence Act 2011 (ACT) as credibility evidence provided it substantially affects the assessment of the person’s credibility – consideration of the danger of the evidence being misleading or confusing and whether it should be excluded pursuant to s 135(b) of the Evidence Act 2011 (ACT) – s 60 of the Evidence Act 2011 (ACT)  applies where evidence is relevant for both a hearsay and a non-hearsay purpose - s 137 of the Evidence Act 2011 (ACT) does not require admissible evidence to be excluded if the probative value of the admissible evidence is not outweighed by the risk of unfair prejudice to the defendant – consideration of the court’s residual discretion to exclude evidence that is unfair to the defendant – opportunity to cross examine witness relevant to consideration of fairness to defendant

R v Eastman (No 44) [2018] ACTSC 194
Uploaded 4 March 2019
CRIMINAL LAW – EVIDENCE – Evidence of a decision of the Administrative Appeal Tribunal is not excluded pursuant to s 91 of the Evidence Act 2011 (ACT) if it is not relied on to prove the existence of the fact in issue and the evidence is relevant and probative – pursuant to s 91(2) the evidence admitted for another purpose is not admissible to prove the fact – where the probative value of admissible evidence is outweighed by the risk of unfair prejudice to the accused the evidence must be excluded pursuant to s 137 of the Evidence Act 2011 (ACT)

R v Eastman (No 43) [2018] ACTSC 186
Uploaded 4 March 2019
CRIMINAL LAW – EVIDENCE – Admissibility of recordings of the accused speaking – recorded from lawful listening devices –to enhancement of audio-recordings considerations applicable – use of transcripts of audio-recordings – consideration of whether utterances are admissions and, if so, are admissible pursuant to s 90 of the Evidence Act 2011 (ACT) – whether evidence of admissions should be excluded pursuant to ss 135 and 137 of the Evidence Act 2011 (ACT) – tendering records as evidence pursuant to s 48 of the Evidence Act 2011 (ACT

Hyblewski v Bellerive Homes Pty Ltd [2019] ACTSC 44
Uploaded 1 March 2019
BUILDING AND CONSTRUCTION – Building Act 2004 (ACT) – defective building works – statutory and contractual duty of the certifier – breach of duty by certifier in issuing stage certificates – failure to carry out statutory function of certifier with due care and skill – damages flowing from breach of contract – quantification of damages for remedial work – remoteness – recovery of damages for loss of rent – evidence presented at trial contrary to pleaded claim – apportionment of damages not available

R v Degioannis [2019] ACTSC 47 (SCC 82 of 2018)
Uploaded 1 March 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – maintaining a sexual relationship with a young person – using a child for the production of child exploitation material – possession of child exploitation material - failing to report personal details as a registrable offender – guilty plea – breach of Good Behaviour Order – suspended sentence imposed – significant criminal history

Bailey v Bottrill [2019] ACTSC 45
Uploaded 28 February 2019
APPEAL – Application for leave to appeal from ACAT – whether ground of substance to be argued – where question of law arising as to correct test to be applied – leave granted
DEFAMATION – Publication – whether hyperlink to defamatory material and an accompanying statement on a personal Facebook page amounted to publication – whether Tribunal applied correct test

R v Eastman (No 42) [2018] ACTSC 176
Uploaded 28 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application by accused for an order for non-publication of image – balancing the desirability of open justice with the accused’s right to a fair trial – any order restricting publication made in exercise of the court’s inherent power should only be made if necessary and should be restricted to meet the concerns to be addressed whilst preserving the principle of open justice

R v Eastman (No 41) [2018] ACTSC 175
Uploaded 28 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence pursuant to s 43 of the Evidence Act 2011 (ACT) as evidence of a prior inconsistent statement of witness – where evidence admitted pursuant to s 43 the hearsay rule does not apply to the evidence pursuant to s 60 of the Evidence Act 2011 (ACT) – circumstances surrounding the making of the representation are relevant to determining whether the happening of the asserted fact is ‘fresh in the memory’ of the person making the representation pursuant to s 66(2) of the Evidence Act 2011 (ACT) – inconsistency in the evidence affected its probative value – evidence excluded pursuant to s 135 of the Evidence Act 2011 (ACT) because the low probative value of the evidence is substantially outweighed by its prejudicial effect

Henry v The Queen [2019] ACTCA 5
Uploaded 28 February 2019
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – manifest excess – whether non-parole period manifestly excessive

R v Po’oi [2018] ACTSC 364 (SCC 8 of 2017; SCC 9 of 2017)
Uploaded 28 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – aggravated burglary – intentionally inflicting grievous bodily harm – joint criminal enterprise

R v Eastman (No 40) [2018] ACTSC 174
Uploaded 28 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence – objection to Crown to evidence in s 67 notices served by defence pursuant to s 65(8) of the Evidence Act 2011 (ACT) – that part of the evidence set out in the s 67 notices which is relevant to a fact in issue is admissible pursuant to s 55 of the Evidence Act 2011 (ACT) – in criminal matters the court is slow to exclude evidence presented by the defence on the basis that the risk of unfair prejudice substantially outweighs its probative value pursuant to s 135 of the Evidence Act 2011 (ACT)

R v Eastman (No 39) [2018] ACTSC 171
Uploaded 28 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence – objection by prosecution to evidence in defence’s 67 notice served pursuant to s 65(8) of the Evidence Act 2011 (ACT) – evidence in notice speculative, irrelevant and therefore inadmissible

R v Eastman (No 38) [2018] ACTSC 124
Uploaded 28 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence proposed to be led pursuant to the Evidence Act 2011 (ACT) s 67 notice whether evidence irrelevant and inadmissible pursuant to s 56(2) of the Evidence Act 2011 (ACT) – whether evidence should be excluded pursuant to s 137 of the Evidence Act 2011 (ACT) because its probative value is outweighed by unfair prejudice to the accused – second hand hearsay not admissible pursuant to s 65(2) of the Evidence Act 2011 (ACT) – second hand hearsay is not an exception pursuant to s 78(a) of the Evidence Act 2011 (ACT) and is inadmissible pursuant to s 76 of the Evidence Act 2011 (ACT)

R v Eastman (No 37) [2018] ACTSC 114
Uploaded 28 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence in notices filed pursuant to s 67 Evidence Act 2011 (ACT) – evidence relied on by the prosecution admissible in rebuttal of assertion that accused searching for a weapon for self defence – evidence relevant pursuant to s 56(2) of the Evidence Act 2011 (ACT) –evidence not excluded pursuant to s 137 of the Evidence Act 2011 (ACT) as probative value not outweighed by danger of unfair prejudice to accused

R v Eastman (No 36) [2018] ACTSC 107
Uploaded 28 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence contained in notices filed by the defence pursuant s 67 relying on s 65(8) of the Evidence Act 2011 (ACT) – evidence that does not substantially affect a witness’ credit is inadmissible pursuant to s 103(1) of the Evidence Act 2011 (ACT) – surrounding circumstances are relevant to the probative value of a representation – where it is not clear that a representation is based on actual knowledge but may be based on second-hand hearsay or opinion is inadmissible – evidence that is very general may not be relevant to a fact in issue and therefore is inadmissible

R v Eastman (No 34) [2018] ACTSC 68
Uploaded 27 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of tendency evidence – Tendency evidence inadmissible unless it has significant probative value pursuant to s 97(1)(b) of the Evidence Act 2011 (ACT) – tendency evidence presented by prosecution is inadmissible unless its probative value substantially outweighs the prejudicial effect it may have on the accused pursuant to s 101(2) of the Evidence Act 2011 (ACT)– factors relevant to assessing probative value – factors relevant in balancing probative value and prejudicial effect – tendency evidence does not relate only to the credibility of the witness and thus not excluded pursuant to s 94(1) of the Evidence Act 2011 (ACT) – tendency evidence inadmissible because either it is not significantly probative or the probative value does not substantially outweigh prejudicial effect – Admissibility of evidence pursuant to s 65(2)(b) and or s 65(2)(c) of the Evidence Act 2011( ACT)

R v Eastman (No 32) [2018] ACTSC 12 
Uploaded 27 February 2019
CRIMINAL LAW – EVIDENCE – Whether evidence of alleged threats made by accused admissible –- evidence given at earlier trial admissible pursuant to s 65(3) Evidence Act 2011 (ACT) - evidence excluded where danger of prejudice to accused outweighs probative value pursuant to s 137 of Evidence Act 2011 (ACT) –– factors relevant to balancing danger of prejudice and probative value in s 137 of Evidence Act 2011 (ACT)

R v Daquinta (No 2) [2019] ACTSC 19 (SCC 218 of 2013)
Uploaded 27 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – trafficking in a controlled substance – breach of a good behaviour order – damaging property – negligent driving – breach of a protection order – offence committed at the end of a good behaviour order – good behaviour order and suspended sentence in the Magistrates Court – absence of further offending conduct – unavailability of periodic detention orders

R v Eastman (No 31) [2018] ACTSC 11
Uploaded 27 February 2019
CRIMINAL LAW – EVIDENCE – Whether identification evidence should be admitted – whether evidence should be excluded pursuant to ss 56(2), 114, 135, 137 and 138 of the Evidence Act 2011(ACT) and/or the common law rule to exclude unfair evidence – whether probative value of identification evidence outweighed by unfairness to accused – test to be applied by trial judge when deciding whether taken at its highest identification evidence is probative without assessing credit and reliability of witness

R v Rheinberger [2017] ACTSC 422 (SCC 3 of 2015)
Uploaded 27 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – breach of Good Behaviour Order – whether term of imprisonment should be imposed – whether there has been a change in circumstances – drug and alcohol abuse

R v Eastman (No 30) [2018] ACTSC 7
Uploaded 26 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility in a criminal trial of hearsay evidence where maker of the representation is deceased – notice issued pursuant to s 67 relying on ss 65(2)(b) and 65(2)(c) of the Evidence Act 2011 (ACT) – when is a representation made ‘shortly after’ the asserted fact pursuant to s 65(2)(b) of the Evidence Act 2011 (ACT) – a representation that is not made ‘shortly after’ the asserted fact does not meet the requirement of s65(2)(b) – the representation not made in circumstances that make it highly probable it was reliable as required by s 65(2)(c) Evidence Act 2011 (ACT

R v Eastman (No 29) [2018] ACTSC 4
Uploaded 26 February 2019
CRIMINAL LAW – EVIDENCE – Admissibility of evidence – probative value - identification evidence – similarity evidence - relevance – lack of positive identification – probative value – risk of unfair prejudice – police impropriety

R v Eastman (No 28) [2018] ACTSC 2
Uploaded 26 February 2019
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Admissibility – whether the admission or its making influenced by conduct proscribed by s 84(1) of the Evidence Act 2011 (ACT) – whether police conduct was proscribed conduct pursuant to s 84(1) – whether the conduct influenced the admissions – temporal proximity between proscribed conduct and admissions – consideration of Human Rights Act 2004 (ACT) in interpreting the operation of s 84 of the Evidence Act 2011 (ACT) and determining whether conduct is proscribed

R v Eastman (No 27) [2018] ACTSC 1
Uploaded 26 February 2019
CRIMINAL LAW – EVIDENCE – Judicial Discretion to admit or exclude Evidence – Admissibility of previous representation where person not available to give evidence – relevant evidence – whether evidence admissible for a non-hearsay purpose – whether the exception to the hearsay rule applies – whether the evidence excluded as credibility evidence – whether use of the evidence should be limited – operation of ss 60, 65, 102, 106, 108, 108A and 136 of the Evidence Act 2011 (ACT)

St Hilliers Property Pty Ltd v ACT Projects Pty Ltd (No 3) [2019] ACTSC 32
Uploaded 26 February 2019
PROCEDURE – COSTS – slip rule application – whether there was an accidental slip or omission – whether an order should be made to clarify intent ––potential for injustice

R v Eastman (No 26) [2017] ACTSC 393
Uploaded 26 February 2019
CRIMINAL LAW – EVIDENCE – Judicial discretion to admit or exclude evidence – application for an advance ruling – admissibility of fingerprint evidence and evidence of the accused using a false name and address.

R v McMahon [2019] ACTSC 25 (SCC 301 of 2018)
Uploaded 26 February 2019
CRIMINAL LAW – JURISDICTION – PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – social security payments – dishonesty offences – dishonestly obtaining by deception financial advantage from Commonwealth entity

R v Urlich [2018] ACTSC 345 (SCC 204 of 2016)
Uploaded 26 February 2019
CRIMINAL LAW –JURISDICTION, PRACTICE AND PROCEDURE –Judgment and Punishment –Sentence –manslaughter –improperly interfering with a dead human body –no evidence that untreated psychotic illness or substance use disorder contributed to the commission of these offences –moral culpability –did not enter a plea of guilty to charge of manslaughter –made significant admissions –prospects for rehabilitation –protection of the public –objective seriousness –sentences of imprisonment imposed

R v Reid [2018] ACTSC 368 (SCC 178 of 2018; SCC 179 of 2018; SCC 259 of 2018)
Uploaded 26 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – two counts of aggravated burglary with a crow bar in company – resisting a territory public official – possess crow bar offence taken into account – poor criminal history – guilty pleas – significant history of alcohol and polysubstance abuse –  hopeful factors for rehabilitation – significant support programs available in the community – custodial sentence with shorter than usual non-parole period

Director-General, Community Services Directorate v WS [2019] ACTCA 4
Uploaded 26 February 2019
APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – In General and Right of Appeal – whether appeal incompetent – appeal not the appropriate vehicle to obtain guidance on primary judge’s comments – matter previously remitted to Childrens Court – appeal dismissed

R v Heaven [2019] ACTSC 31 (SCC 275 of 2018)
Uploaded 25 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – trafficking in a trafficable quantity of cannabis – plea of guilty in Magistrates Court – previous criminal history on similar charges in Victoria – offender a resident of Victoria – no assessment made for Intensive Correction Order – general deterrence – specific deterrence – partially suspended sentence

R v Eastman (No 25) [2017] ACTSC 364
Uploaded 25 February 2019
CRIMINAL LAW – EVIDENCE – Relevance – Admissibility – discretion or requirement to exclude evidence in certain circumstances – evidence could rationally affect assessment of existence of fact in issue pursuant to s 55 Evidence Act 2011 (ACT) – probative value of evidence not significantly outweighed thus not excluded pursuant to s 135 Evidence Act 2011 (ACT) – danger of unfair prejudice does not outweigh probative value thus not excluded pursuant to s 137 Evidence Act 2011 (ACT).

R v Eastman (No 24) [2017] ACTSC 348
Uploaded 25 February 2019
CRIMINAL LAW - EVIDENCE - Judicial Discretion to admit or exclude evidence - Admissibility of coincidence evidence relied upon by prosecution - whether .the coincidence evidence is relevant pursuant to s 55 Evidence Act 2011 (ACT) - whether the similarities in the events and or circumstances relied on by the prosecution are such that it . is improbable that the events happened coincidentally - whether the coincidence evidence will have significant probative value - operation of s 98 Evidence Act 2011 (ACT) - whether the probative value of the coincidence evidence substantially outweighs any prejudicial effect on the defendant pursuant to s 101 Evidence Act 2011 (ACT) - some of the coincidence evidence found to be relevant and to have significant probative value that outweighs prejudicial effect

R v Eastman (No 23) [2017] ACTSC 281
Uploaded 22 February 2019
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Whether exercise of discretion to admit or exclude evidence by trial judge at first trial binding on trial judge at retrial – operation of s 76 of the Court Procedures Act 2004 (ACT) – where a conviction at first trial is quashed on appeal there is nothing conclusive about a ruling as to admissibility of evidence which involves no final determination of any issue of fact and law final – s 56 and 137 of the Evidence Act 2011 (ACT) operate so that the trial judge must determine if evidence is relevant and that its probative value outweighs its prejudicial effect.

R v Eastman (No 22) [2017] ACTSC 256
Uploaded 22 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Legal Professional Privilege – Claim by accused that prosecution has had access to privileged communications – application to restrain such members of prosecution who have had access to privileged communications – determination of whether or not communications privileged – appropriate test in circumstances whereby the prosecution has had access to the privileged communications – test is whether or not knowledge of the contents of privileged communications creates a risk of unfair forensic advantage to the prosecution and/or a risk of detriment to the defence case resulting in a risk of an unfair trial

R v Eastman (No 21) [2017] ACTSC 255
Uploaded 22 February 2019
CRIMINAL LAW – EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – Admissibility of tendency evidence relied on by prosecution – operation ss 97 & 98 Evidence Act 2011 (ACT) – assessment of whether or not tendencies as pleaded are defective

R v Eastman (No 20) [2017] ACTSC 229
Uploaded 22 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrants, Arrest – subpoena unable to be served on witness – application by Crown for arrest warrant – no express power for Supreme Court to issue warrant where subpoena not served – whether inherent power of court permits issue of warrant

R v Eastman (No 18) [2017] ACTSC 180
Uploaded 22 February 2019
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Subpoenas - public interest immunity – production of documents in response to subpoena - claims to non disclosure of information in documents on ground of public interest immunity - protection of informers - objection to disclosure on public interest immunity ground upheld in part

Cole v The Queen [2019] ACTCA 3
Uploaded 21 February 2019
APPEAL - GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – nonparole period – manifest excess – principles of totality

Cornwall v Jenkins as trustee for the iSpin Family Trust [2019] ACTSC 34
Uploaded 21 February 2019
TORTS – NEGLIGENCE – Breach of duty – injury sustained during aerial sling exercise class – various breaches alleged – evidence does not establish mechanism by which plaintiff fell from the sling – use of mats – use of spotter – breach of duty not established on the evidence – turns on own facts TORTS – NEGLIGENCE – Causation – use of crash mats – causation not established if using one layer of crash mats – no determination as to causation when using more than one layer of crash mats – use of spotter – limitations on the evidence precludes finding that the lack of a spotter was a necessary condition of the harm – turns on own facts

R v Eastman (No 15) [2017] ACTSC 143
Uploaded 21 February 2019
EVIDENCE – JUDICIAL DISCRETION TO ADMIT OR EXCLUDE OR EVIDENCE – Admissibility of evidence – admissibility of evidence at retrial given by the accused during first trial – consideration of discretion to exclude admissions and evidence presented by prosecution in criminal proceedings – unfair to the accused to use the evidence in the retrial – ruling not absolute if presented with prior inconsistent statements by the accused – s 90 Evidence Act 2011 (ACT)

R v Eastman (No 14) [2017] ACTSC 66
Uploaded 21 February 2019
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – subpoenas – subpoena addressees application to set aside – assertion that no legitimate forensic purpose – too broad – oppressive

Eastman v Director of Public Prosecutions (No 13) [2016] ACTCA 65
Uploaded 21 February 2019
CRIMINAL LAW – Permanent stay refused – Application for leave to appeal – Principles applicable on leave to appeal an interlocutory decision – Position of court of appeal on reviewing decision of trial judge in the course of criminal proceedings – Whether assessments and conclusions of trial judge open – Whether proper assessment of the disadvantages facing the applicant – Whether proper account taken of relevant considerations – Leave to appeal refused.

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