Category: Case Notes

26 May

Case Summary – Reasonable apprehension of bias

The High Court handed down an important decision on reasonable apprehension of bias in the matter of QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15.  Apprehended apprehension of bias is said to arise where “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345. Facts QFM was a citizen of Burkinsa Faso.  He was sentenced to a term of 10 years imprisonment for a …

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10 May

Legal professional privilege

Legal professional privilege protects communications between clients and their lawyers in the defence of criminal prosecutions. The privilege extends to documents which have come into existence for the dominant purpose of use in legal proceedings. It also extends to communications between lawyers or the client and third parties where they are made in contemplation of litigation and for the purposes of the litigation. In R v McNicol [2022] QSC 67, His Honour, Justice Davis SC outlines the steps a lawyer should undertake where the client has advanced an application to set aside their plea on the basis of the solicitor’s conduct. …

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24 Aug

Case Note Update- Pre-sentence custody declaration.

In R v Stewart [2021] QSC 187, His Honour, Justice Henry looks at the issue of where there is shared pre-sentence custody and whether it is open to the court to declare the time held, even where that is in respect of a previous sentence. The case considers the proper interpretation of section 159A(1) of the Penalties and Sentences Act 1992. His Honour adopts the reasoning of Her Honour, Justice Bowskill in R v Whitley [2021] QSC 154. See Case Note. Facts Mr Stewart entered a plea of guilty to 12 offences. The most serious was the possession of a …

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21 Aug

Case Note – Parole Delay on Sentences.

In GSB v Commissioner of Police [2021] QDC 196, His Honour, Judge Rinaudo AM DCJ adopted the approach of Judge Cash QC in R v Eru-Guthrie [2021] QDC 174 in sentencing an offender who committed further offences while on parole. The notorious delay with the Queensland Parole Board has caused considerable difficulties for sentencing Courts. At the time of committing the offence the subject of the appeal, the Appellant was on parole for previous offending. Pursuant to s 209 of the Corrective Services Act 2006 (Qld), when he was sentenced to a term of imprisonment his parole was taken to have been cancelled. Sentencing …

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12 Aug

Case Note – Impact of Parole Delay on Sentences.

In R v Eru-Guthrie [2021] QDC 174, His Honour, Judge Cash QC, DCJ was asked to re-open the sentence proceedings where Mr Eru-Gutherie’s parole application faced significant delay. Ultimately, His Honour re-opened the proceedings and reduced the sentence that was imposed. FACTS: On 13 April 2021, Mr Eru-Gutherie, entered a guilty plea to a single offence of unlawfully doing grievous bodily harm. He was sentenced to a term of four years and parole eligibility date 1 of 1 December 2021 was fixed (a bottom of 16 months). His Honour intended to sentence the Applicant to four years and parole eligibility after 14 months. …

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21 Jul

Possess knife in a public place – case note

In Queensland Police Service v Pitt [2021] QMC 4, Mr Pitt was charged with possess knife in a public place. The issue was whether the hunting knifes were physically possessed by the accused. If so did Mr Pitt have a reasonable excuse 48 hours later. Ultimately the Court found in favour of the accused. FACTS Police formed a suspicion that there may be drugs within the Defendant’s car. The driver and two passengers were detained for a search. Police located two knives in a sheath. They were in a position between the two seats in the cabin of the utility, in …

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30 Jun

Pre-sentence custody declaration – Case Note

The Queen v Whitely [2021] QSC 154 relates to recent amendments which affect the Court’s ability to make a pre-sentence custody declaration where there is shared pre-sentence custody. Her Honour, Justice Bowskill, articulates the proper construction of section 159A(3B) of the Penalties and Sentences Act 1992. The reasoning of Her Honour has subsequently been adopted by His Honour Justice Henry in the decision of R v Stewart [2021] QSC 187. See our Case Note. Pre-sentence custody declarations Where a person is remanded in custody the Court must take into account the time the person has spent in custody awaiting trial or …

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13 Jun

Case Note – Convictions in Child Exploitation Sentences.

In R v ZB [2021] QCA 9, the Court of Appeal, was required to consider an appeal against the recording of a conviction for an offence of possession of child exploitation material.  Ultimately the Court found in favour of the Applicant, determining that the consequences of a recorded conviction would adversely affect the offender and the community. FACTS The applicant pleaded guilty to one charge of the possession of child exploitation material.  police located 98 images depicting child exploitation material, 51 of which were still accessible. About one half of the images were in category one images. The Applicant participated in an electronic record …

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13 Apr

Case Note – No Conviction Recorded

In Kemp v The Commissioner of Police [2021] QDC 30, Her Honour, Judge Loury QC DCJ, was required to consider whether a conviction should be recorded for an offence of Stealing. It was argued that the nature of the offence was such that the court at first instance should have exercised its discretion and ordered “no conviction recorded” FACTS On 2 October 2019 the appellant was convicted at Richlands Magistrates Court for an offence of stealing. She was fined $400 and ordered to pay $15.06 in compensation. A conviction was recorded.  The circumstances of the offence involved the appellant stealing fuel …

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13 Mar

Removal of licence disqualification

In Murray v Commissioner of Police [2021] QDC 48, the Court was required to consider whether the Applicant had demonstrated that it was appropriate to remove an absolute licence disqualification imposed for an offence of Dangerous Operation of a Motor Vehicle. FACTS On Christmas Day 2016, the applicant had been drinking heavily during the course of the day. At about 4.30pm that day, it was decided that he and others would go to another address in Springwood. The applicant ordered an Uber driver for one of his companions, but drove himself. He drove a distance of about five kilometres. He was …

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