General Civil Appeal – Criminal Law – Jurisdiction, Practice and Procedure – Judgment and Punishment – Orders for Compensation, Reparation, Restitution, Forfeiture and other Matters Relating to Disposal of Property – Compensation – Queensland – where the respondent was convicted of doing grievous bodily harm to the appellant – where the appellant was awarded $54,750 in compensation – where the appellant appealed on the basis that the award was manifestly inadequate because of the omission from the award of amounts for various injuries described in the relevant compensation table – where the trial judge had grouped some injuries with other injuries notwithstanding that some of the injuries fell within other descriptions in the compensation table – where the respondent argued that the trial judge was merely exercising his discretion – whether the trial judge erred in grouping together the injuries – whether the trial judge had correctly performed the task required by the Act – examination of the methodology to be applied in making assessments of applicable items in the compensation table when the assessment might be duplicitous – HELD: 1.Appeal allowed; 2. Set aside the order made in the District Court on 10 October 2007, and in lieu thereof order that the respondent Wilson Conwell Gaulai pay the applicant Andrew John Wren the sum of $61,500 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1984 (Qld); 3. The respondent pay the appellant's costs of and incidental to the appeal; 4. Grant the respondent an indemnity certificate under s 15 of the Appeal Costs Fund Act 1973 (Qld).

General Civil Appeal – Appeal and New Trial – Appeal – General Principles – Right of Appeal – When Appeal Lies – Error of Law – Particular Cases Involving Error of Law – Failure to Give Reasons for Decision – Adequacy of Reasons – where a complaint was made against the appellant in relation to the appellant’s conduct in advising and treating a patient for a mid-trimester termination – where the Health Practitioners Tribunal determined that the appellant had engaged in unsatisfactory professional conduct – where the Tribunal ordered that the appellant’s registration be suspended for four months and conditions imposed as to the manner in which the appellant could conduct her practice pursuant to s 241(2)(h) Health Practitioners (Professional Standards) Act 1999 (Qld) – where there were ten particulars of unsatisfactory professional conduct – where the Tribunal had a duty to give reasons under s 245 Health Practitioners (Professional Standards) Act 1999 (Qld) and the common law – where the Tribunal did not indicate whether it accepted or rejected the appellant’s evidence – where the Tribunal failed to explain why it preferred the respondent’s expert evidence over the appellant’s expert evidence – where the Tribunal failed to identify the evidentiary basis for the conclusion that every particular of sub-standard professional conduct was satisfied – whether the Tribunal failed to give adequate reasons for the decision constituting a denial of natural justice – HELD: The decision of the Health Practitioners Tribunal on 11 December 2007 be set aside; The matter be remitted to a differently constituted tribunal for determination according to law; The respondent pay the appellant’s costs of the appeal; The costs of and incidental to the hearing at first instance be reserved for determination by the Tribunal if not agreed between the parties.

Application for Leave Integrated Planning Act – Environment and Planning – Environmental Planning – Planning Schemes and Instruments – Queensland Generally – where the judge in the Planning and Environment court allowed an appeal against Mackay City Council’s decision to refuse an application by the first respondent for a development permit – where there were substantial conflicts between the application and planning Scheme provisions – where the primary judge determined there were sufficient planning grounds to justify approval despite any conflicts – where the primary judge failed to take into account residential amenity in evaluating sufficiency of planning grounds – whether the primary judge departed from the principle that a Court ought not replace the carefully constructed schemes of a planning authority with its preferred planning strategies – whether the primary judge’s reasons in allowing the appeal constitute an error of law – HELD: Allow application for leave to appeal; Allow the appeal; Set aside the orders made below and order that Appeal No. BD 3575 of 2006 to the Planning and Environment Court be dismissed; First respondent to each appeal pay the other parties’ costs of the appeal.

General Civil Appeal – Appeal and New Trial – Appeal – General Principles – When Appeal Lies – For Bias in Judicial Proceedings – where at the commencement of proceedings the learned primary judge expressed some views on the merits based upon the written submissions of the parties – where the learned primary judge intervened on numerous occasions in the cross-examination of a key witness – whether the conduct of the learned primary judge was such that a fair-minded person might have a reasonable suspicion of bias on the part of the primary judge – Succession – Family Provision and Maintenance – Practice – Time for Making Application – General Matters – Queensland – where the application by the respondent under Pt IV of the Succession Act 1981 (Qld) was instituted outside of the statutory time limit for the bringing of such proceedings – whether the circumstances are such that the Court should exercise its discretion to extend the time in which such an application can be made – Failure by Testator to Make Sufficient Provision for Applicant – Whether Applicant Left with Insufficient Provision – General – where the grant of provision to the respondent by the testator reflected the terms of a pre-nuptial agreement between both parties – whether the terms of the pre-nuptial agreement are relevant to the question of sufficient provision by the testator to the respondent – whether the testator had made insufficient provision to the respondent thereby justifying the grant of the application for further maintenance – HELD: Appeal allowed; Order of the Supreme Court set aside and in lieu thereof it is ordered that application for provision out of the estate of Marie Sylvia Chalk be dismissed, The respondent to pay the appellants' costs both of this appeal and of the application below to be assessed on the standard basis

Sentence Applications – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal against Sentence – Appeal by Convicted Persons – Applications to Reduce Sentence – applicants were involved, with others, in a sophisticated heroin trafficking operation – both applicants pleaded guilty to trafficking heroin over 11 month periods – Ly was sentenced to 12 years imprisonment and declared to be convicted of a serious violent offence – Kyprianou was sentenced to 10 years and 6 months imprisonment and declared to be convicted of a serious violent offence – neither applicant was a heroin addict, and each participated in the trafficking for profit – Kyprianou had a slightly lower level of involvement in the operation than Ly – references and a psychological report tendered on Kyprianou's behalf showed good prospects of rehabilitation – whether the sentences were manifestly excessive – Grounds for Interference – General Principles – Kyprianou settled an action against him by the Commonwealth DPP under the Proceeds of Crime Act 2002 (Cth), forfeiting property the proceeds of the trafficking to the Commonwealth – whether co-operation with Commonwealth authorities is a mitigating factor when being sentenced for a Queensland offence – whether Kyprianou had co-operated with the Commonwealth authorities – whether the sentencing discretion miscarried - Kyprianou returned to Australia from Cyprus knowing that he would be arrested upon his arrival – whether his voluntary return put Kyprianou in a special category of case requiring extraordinary leniency – whether the sentencing discretion miscarried – HELD: Applications for leave to appeal refused.

Appeal against Conviction – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Particular Grounds – Unreasonable or Insupportable Verdict – Where Appeal Dismissed – where jury found appellant guilty of one count of rape and not guilty on a second count – where complainant’s evidence on the first count was tangentially substantiated by other witnesses – where there were weaknesses in complainant’s evidence on second count – whether guilty verdict on first count was unreasonable –whether verdicts were inconsistent – Miscarriage of Justice – Particular Circumstances Involving Miscarriage – Misdirection and Non-Direction – where trial amounted to a “word against word” case – where weaknesses in complainant’s evidence on second count of rape – where trial judge’s direction over-stated tangentially corroborating evidence in relation to the first count of rape – where Markuleski order was not sought at trial – whether trial judge should have given a Markuleski direction – whether a miscarriage of justice occurred – HELD: (by majority) Appeal dismissed.

Appeals against Sentence by A-G (Qld) – Criminal Law – Appeal and New Trial and Inquiry after Conviction – Appeal and New Trial – Appeal Against Sentence – Appeal by Attorney General or other Crown Law Officer – six respondents (AAC, PAG, KZ, BBL, WZ and YC) each pleaded guilty to one count of rape of a 10 year old girl – three respondents (WY, KU and KY) each pleaded guilty to two counts of rape of the same girl – sentencing judge referred to offence as 'hav[ing] sex with young girls' rather than as 'rape' in sentencing remarks on 24 October 2007 – sentencing judge stated that all the respondents would be treated the same 'in terms of the behaviour' – adults and juveniles are to be sentenced under different statutory regimes under the Penalties and Sentences Act and the Juvenile Justice Act – reasons for the sentence imposed are required by s 10 of the Penalties and Sentences Act and s 158 of the Juvenile Justice Act – whether sentencing judge gave adequate reasons to support the sentences imposed – whether the sentencing judge sentenced on an incorrect basis – whether the sentencing process miscarried – whether the Court of Appeal must re-sentence the respondents – Applications to Increase Sentence – the adult respondents, WZ, KU and WY, were sentenced to fully suspended terms of six months imprisonment with an operational period of 12 months – the juvenile respondents, YC, KY, PAG, AAC, KZ and BBL, were sentenced to 12 months probation with no conviction recorded – sexual offences by adults on children warrant custodial sentences except in exceptional circumstances – sexual offences by juveniles on children usually warrant a term of detention – whether sentences were manifestly inadequate – Jurisdiction, Practice and Procedure – Judgment and Punishment – Sentence – Miscellaneous Matters – Duty of Crown Prosecutor – officer of the Office of the Director of Public Prosecutions (Queensland) submitted that non-custodial sentences were appropriate for all respondents – Attorney-General on appeal submitted that orders for imprisonment for the adults, and detention for the juveniles, were appropriate for all respondents – considerations of a type of 'double jeopardy', given the concessions of the prosecution at sentence – whether prosecution submissions led sentencing judge into error – whether Attorney-General may resile from the submissions of the prosecution at sentence – whether, if satisfied that the sentencing process miscarried, the appeal should be dismissed because of the conduct of the prosecution – Factors to be Taken into Account – Aboriginal Offenders – all respondents and victim of Aboriginal descent and living in remote community at Aurukun – relevance of community dysfunction – rape and sexual relations with children not in accordance with Aboriginal customary law and not condoned by Aurukun community – whether only personal disadvantages suffered by each particular respondent should be taken into account – personal disadvantages must be considered with the seriousness of the offence and other relevant factors – whether the dysfunctionality of the community from which the offender came on its own warrants leniency – HELD: (Briefly) R v WZ - Appeal allowed; Set aside the sentence imposed in the District Court on 24 October 2007; Order that the respondent be imprisoned for six years and fix a parole eligibility date of 13 June 2010; There will be a declaration that 55 days pre-sentence custody (from 19 September to 5 November 2006 and 16 November to 22 November 2006) be treated as time served under this sentence; Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days. R v KU & WY – Same as WZ except for: On each count order that the respondent be imprisoned for concurrent terms of six years and fix a parole eligibility date in each case of 13 June 2010. R v KZ – Same as WZ except for: Order that a conviction be recorded; Order that the respondent be sentenced to detention for three years to be released after serving 50 per cent of that term; There will be a declaration that 41 days pre-sentence detention (from 1 to 3 July 2006, 19 to 20 September 2006, 5 October to 10 November 2006, 7 to 8 December 2006 and 19 to 20 March 2007) be treated as time served under this sentence; Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days; Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld).R v AAC – Same as WZ except for: Order that a conviction be recorded; Order that the respondent be sentenced to two years detention to be released after serving 50 per cent of that term; There will be a declaration that one day pre-sentence detention (from 8 to 9 October 2007) be treated as time served under this sentence; Order that a warrant issue for the arrest of the respondent to lie in the registry for seven days; Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld). R v YC, PAG & BBL - Appeal allowed; Set aside the sentence imposed in the District Court on 24 October 2007; Order that a conviction be recorded; Order that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program; Direct that the respondent's legal representative explain to the respondent the purpose and effect of this order in accordance with s 158 of the Juvenile Justice Act 1992 (Qld) and the consequences of non-compliance. R v KY – Same as YC except for: Order on each count that the respondent be sentenced to three years probation on the usual conditions, with a further condition that the respondent attend the Griffith Youth Forensic Service or any other program as directed by the Department of Communities, comply with all reasonable requirements of the program and maintain a rate of progress which is satisfactory to the treatment program.

Application for leave s 118 DCA (Criminal) – Criminal Law – Particular Offences – Offences Against Peace and Public Order – Assaulting, Resisting, Hindering or Obstructing Police Officer – Officer Acting in Execution of Duty – Acting Without Warrant – where applicant was escorted out of a public toilet by police after failing to leave at the request of a cleaner – where applicant was directed to leave the Queen Street Mall for eight hours, and was subsequently arrested and convicted on charges of contravening that direction and obstructing the arresting officer in the course of his duties – whether the arresting officer had a reasonable suspicion in relation to the applicant for the purposes of giving a direction – whether the giving of the direction was reasonable and lawful in the circumstances – where arresting officer did not warn applicant that non-compliance with a direction was an offence in the absence of a reasonable excuse – where no evidence that it was impracticable to give such a warning – whether applicant had sufficient opportunity to comply with the direction – whether direction was contravened – whether arresting officer had an actual and reasonable suspicion that an offence had been committed for the purposes of the obstruction charge – HELD: Grant leave to appeal; Allow the appeal; Set aside order of the District Court dismissing appeal against convictions; Quash the convictions for contravening a direction and obstruction and enter verdicts of acquittal