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Proctor : November 2015
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48 PROCTOR | November 2015 council alleged there was legislative intent which warranted the enlivening of discretionary grounds to refuse the development application – whether the development authorised by the second approval would have been authorised by the first – whether there was such an intent – where it cannot be assumed that the latter approval would contain any condition requiring the applicant to assess compliance with the operational works permit in a way which would require reference to the 2010 reconfiguration approval – where the arguments of the applicant overlooked the obligation imposed by s313(2) to assess the 2014 application “against” various planning provisions – where no doubt the assessment manager must have regard to the matters identified in s313(3), but that must occur in the course of an assessment against the planning provisions identified in s313(2). Application granted. Appeal dismissed. Matter remitted for the making of final orders. Costs. Criminal appeals R v Boney [2015] QCA 162, 1 September 2015 Sentence Application – where the applicant pleaded guilty to one count of entering premises and stealing, not guilty to one count of burglary and stealing and one count of arson on an indictment – where the applicant was found guilty after trial of the burglary and stealing charge, but not guilty of the arson charge – where the applicant was sentenced to concurrent sentences of two years’ imprisonment for both counts, to be served cumulatively on a sentence the applicant was then serving – where the applicant had a lengthy criminal history – whether the sentence was manifestly excessive – where the sentence of imprisonment of two years was certainly high in the circumstance of a relatively youthful offender notwithstanding his criminal history – where the circumstance that the applicant was serving a term of imprisonment imposed because of the breach of his probation at the time of sentencing by his Honour meant that it was within his Honour’s power to sentence the applicant to a sentence cumulative upon the sentence he was then serving, s156(1) of the Penalties and Sentences Act 1992 (Qld) – where the effect of the cumulative imprisonment does not of itself suggest a sentence that is manifestly excessive because the full-time release date under the earlier sentence was 23 March 2015, some one month and 10 days after the date of sentencing by his Honour below – where nevertheless notwithstanding that each of the elements of his Honour’s sentence, when examined in isolation, cannot be shown to have been in error in combination it suggests an overall sentence, particularly in relation to the time ordered to be served that may be a harsh and crushing sentence and ultimately counter-productive of a successful rehabilitation. Application granted. Sentence varied so as to substitute the 22nd October 2015 as the parole release date, otherwise the sentence is confirmed. R v Gallagher [2015] QCA 163, 4 September 2015 Appeal against Conviction – where the appellant was convicted of four counts of rape of a 16-year-old female complainant – where the appellant was acquitted of two further counts of rape alleged to have occurred as part of the same incident – where the appellant was sentenced to an effective term of 10 years’ imprisonment – where the appellant’s ground of appeal was that the verdict was unreasonable or insupportable having regard to the evidence – where it was not in dispute that sexual activity had occurred between the appellant and the complainant – where it was in dispute whether that sexual activity was consensual – where the sole ground in respect of the appeal against conviction is that the verdict was unreasonable and could not be supported having regard to the whole of the evidence – where it was a question for the jury, which had the considerable advantage of seeing and hearing the complainant give evidence, whether it was satisfied beyond reasonable doubt that the sexual acts occurred without the complainant’s consent – where a consideration of that evidence raises no matter which must have caused the jury to have reasonable doubt as to the reliability and credibility of the complainant’s evidence – where the appellant’s evidence that each of the acts occurred consensually, if accepted by the jury, would raise a reasonable doubt as to the appellant’s guilt of those offences, it was open to a reasonable jury, properly instructed, to reject his evidence – where there were significant inconsistencies in the appellant’s accounts at the previous trial and his account at the current trial – where the jury’s assessment of the complainant as a witness of credit and reliability must be given paramount weight. Appeal dismissed. R v GAW [2015] QCA 166, 11 September 2015 Appeal against Conviction & Sentence – where, after a trial before a jury, the appellant was convicted of one count of indecently dealing with a child under 16 in his care and acquitted of a second count in the same terms – where both counts were alleged to have occurred on the same occasion, a short time apart, and depended entirely on the evidence of the complainant – where the jury was directed to consider each count separately – whether the conviction on the first count was unsafe and unsatisfactory because of the inconsistency with the acquittal on the other count – whether the trial judge erred in failing to give a Markuleski direction, having regard to the evidence in the trial – where it was apparent from the trial judge’s summing up that defence counsel addressed on both issues but concentrated on the motives to lie – where the trial judge directed the jury that they “must consider each charge separately” and that their “verdicts need not be the same” – where in those circumstances, and given that defence counsel chose not to ask for a Markuleski direction, it is not considered that the failure Introducing PAUL WILLIAMSON – Specialist Titles Office Consultant Paul can assist in all: • titles office requisitions; • complex transmission applications; • caveats; • easements; • community titles schemes; • subdivisions; T0737209777•M0417717759 paul.williamson@athertonlawyers.com.au PO Box 4172, St Lucia South, Brisbane Q 4067 www.athertonlawyers.com.au Will Precedents Guide Volume 4 Access basic will precedents, letters and notes designed for Queensland legal practitioners with QLS’s Will Precedents Guide – Volume 4. • 19 will precedent templates • Plain English • Available in Microsoft Word • Compatible with Windows and Mac Regular price: $300 Discounted member price: $220 Member discount: 27% Order this valuable resource for your firm today! >> qls.com.au/will-precedents-guide back to contents
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