The Claimant Warren Jonathan was injured in a motor vehicle accident on 4 August 2012. He subsequently through his solicitors sent to the CTP insurer RACQ a Notice of Accident Claim form under the Motor Accident Insurance Act 1994. The insurer confirmed that the form was compliant with Motor Accident Insurance Act requirements and later admitted liability in full for the accident. Continue reading “Claimant loses injury case for being out of contact to his solicitors”
Judge John McGill SC has been a stalwart of the District Court for over 20 years. His final judgment, an appeal against a decision of Magistrate Suzette Coates, has made him leave the bench with a bang and not a whimper.
Those who are familiar with civil litigation in the Magistrates Court know that it is an unfortunate reality that occasionally litigants will receive “rough justice”. This is often due to the lack of knowledge of civil litigation and/or the flippant attitudes of some Magistrates. This observation in no way is intended to criticise the vast majority of Queensland Magistrates, who are conscientious and serve their state well. Continue reading “Judge McGill SC goes out in a blaze of glory in appeal decision”
With its latest big win, Sterling Law is establishing its place as an elite Queensland litigation firm, and a force to be reckoned with.
When Joanne Murdock deliberately remained uncontactable to her solicitors for an extended period of time, she received a bill from them for all the work they had done for her.
The bill set out the charges item by item, particularising the date, the time spent and the person who performed the work, but for most items only provided very concise descriptions of the work performed. Examples later complained of included “attendance with you”, and “telephone attendance with you”. Continue reading “Sterling Law sets leading precedent on itemised bills”
Former Ipswich lord mayor Paul Pisale, a Singaporean friend named Yutian Li and a lawyer named Cameron McKenzie were accused of participating in a bizarre extortion plot:
“Prosecutors claim Yutian told Pisasale she wanted to punish Xin after learning he was married during their relationship.
Pisasale then allegedly posed as a private investigator in a series of phone calls in which he told Xin he needed to pay Yutian between $5000 and $10,000, saying she has “a very, very good case” against him and “could go after you”.
The money, Pisasale said, was reimbursement for Yutian’s private investigation fees.
“She was so upset. You could just see her whole world had been destroyed,” he told the court.
“She was a beautiful person. She was a very caring person and she would have given her 100 per cent to this bloke.
“She was broke, she was in Australia and she had nowhere to turn.
“All he had to do was reimburse her and let her start again but he was so determined not do.”” Continue reading “Paul Pisale sentenced to 2 years imprisonment”
Debbie Deans was employed as a specialist schoolteacher by Riverside Christian College in Maryborough when on 4 March 2015 she slipped over a grape on the linoleum flooring of a foyer in G Block during a ‘fruit break’ during the course of her employment, fracturing her left patella. Continue reading “Teacher’s appeal against District Court decision over grape slip dismissed”
Generally, indictable offences in Queensland are dealt with by the District or Supreme Courts, as they are usually serious offences. However, in some cases, indictable offences can or must be dealt with in the Magistrates Court.
Section 1 of the Criminal Code 1899 (Qld) defines an “indictment” to mean a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction. A “summary conviction” is defined as summary conviction before a Magistrates Court.
Section 3 of the Criminal Code provides that offences are of 2 kinds, namely, criminal offences and regulatory offences. Criminal offences comprise crimes, misdemeanours and simple offences. Crimes and misdemeanours are indictable offences, which means that the offenders cannot, unless otherwise expressly stated, be prosecuted or convicted except upon indictment. A person guilty of a regulatory offence or a simple offence may be summarily convicted by a Magistrates Court.
Sections 1 and 3 of the Code make it clear that the indictable offences are to be dealt with in the District or Supreme Courts, unless the Code provides otherwise. In the District or Supreme Courts, a jury is normally the trier of fact in a criminal trial. In contrast, a trial in the Magistrates Court is a called a summary trial, and the presiding Magistrate is the sole trier of fact. A matter dealt with summarily is dealt with in the Magistrates Court.
Chapter 58A of the Criminal Code (containing sections 552A -552BB inclusive) provides for when indictable offences must or can be heard summarily.
Section 552A of the Criminal Code provides for a list of indictable offences which must be dealt with summarily on Prosecution election.
Section 552B of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless the defendant elects for a jury trial.
Section 552BA of the Criminal Code provides for a list of indictable offences which must be dealt with summarily, unless they are excluded offences under section 552BB of the Code.
Sections 552A, 552B and 552BA of the Criminal Code are all subject to section 552D, which provides that the Magistrates Court must abstain from hearing and determining a charge and must instead conduct a committal proceeding if it is an offence listed at Schedule 1C of the Penalties and Sentences Act 1992, the Court is of the view that the defendant may not be adequately punished on summary conviction after considering submissions or if exceptional circumstances exist.
Section 552H of the Criminal Code provides that the maximum period of imprisonment under section 552A , 552B or 552BA is three years, unless the court is constituted by a magistrate imposing a drug and alcohol treatment order, in which case the maximum penalty is four years imprisonment.
The list of indictable offences that must be dealt with summarily on Prosecution election is contained at section 552A(1) of the Criminal Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
Section 141: Aiding persons to escape from lawful custody.
Section 142: Escaping from lawful custody.
Section 143: a person responsible for keeping someone in from lawful custody permitting escape from lawful custody.
Section 205A: Contravening order about information necessary to access information stored electronically.
Section 340: assaults committed with intent to commit a crime, or as part of an unlawful conspiracy in relation to any manufacture, trade, business, or occupation or committed against a police officer, a person performing a legal duty, a person aged over 60, or a person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.
The indictable offences that must be dealt with summarily unless the defence elects for a jury trial are listed at Section 552B(1) of the Code.
The offences listed include the commission, counselling or procuring, attempt or becoming an accessory after the fact of any of the following offences under the Criminal Code:
A sexual offence without a circumstance of aggravation for which the defendant has pleaded guilty, the complainant is at least 14 years of age and the maximum sentence is more than three years.
Section 339: assault occasioning bodily harm which is not committed in company, without the use of a dangerous or offensive weapon or instrument and not during the term of a community service order.
An offence involving an assault without a circumstance of aggravation and which is not of a sexual nature, and for which the maximum penalty is more than 3 years but not more than 7 years.
Section 60A: Participants in criminal organisation being knowingly present in public places.
Section 60B: Participants in criminal organisation entering prescribed places and attending prescribed events.
Section 76: Recruiting a person to become participant in criminal organisation.
Section 77B: Habitually consorting with recognised offenders.
Section 328A: Dangerous operation of a vehicle (with a circumstance of aggravation at Section 328A(2)).
359E Punishment of unlawful stalking if the maximum term of imprisonment for which the defendant is liable is not more than 5 years.
An offence against chapter 14 (Corrupt and improper practices at elections), division 2 (Legislative Assembly elections and referendums), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 22A (Prostitution), if the maximum term of imprisonment for which the defendant is liable is more than 3 years.
An offence against chapter 42A (Secret Commissions).
Section 552BA(4) of the Code provides that ‘relevant offences’ must be heard and dealt with summarily.
Relevant offences are defined as indictable offences which either:
The list of excluded offences contained in the table of Section 552BB includes the following offences:
The list of excluded offences contained in the table of Section 552BB also includes the following indictable offences if committed in the following circumstances:
Section 398: stealing – if:
the amount stolen, yield or detriment is equal or more than $30,000, and the offender does not plead guilty; or
the thing stolen was a firearm for use in another indictable offence.
Section 399: fraudulent concealment of documents – if the offence is not committed in relation to a document recording title to property, or the yield or detriment is equal or more than $30,000 and the offender does not plead guilty.
Section 403: Severing with intent to steal – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 406: Bringing stolen goods into Queensland – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 408A: Unlawful use or possession of motor vehicles, aircraft or vessels – if the value of the motor vehicle, aircraft or vessel is equal or more than $30,000 and the offender does not plead guilty, or if the offender is liable for at least 10 years imprisonment (ie if they used the vehicle for the commission of an indictable offence or intended to or did wilfully destroy, damage, remove or otherwise interfere with the mechanism (or part thereof) or other part of or equipment attached to the motor vehicle, aircraft or vessel).
Section 408C: Fraud – if the amount in question is at least $30,000 and the offender does not plead guilty.
Section 408E Computer hacking and misuse – If the offender causes a detriment or damage or obtains a benefit for any person to the value of more than $5,000, or intends to commit an indictable offence, and the offender does not plead guilty.
Chapter 38 Stealing with violence or extortion by threats – excluding sections 413 (Assault with intent to steal) and 414 (Demanding property with menaces with intent to steal).
Section 419 Burglary – if:
the offender uses or threatens to use actual violence;
the offender is or pretends to be armed;
the offender damages or threatens to damage any property by at least $30,000 in value and the offender does not plead guilty; or
the offender then commits an indictable offence in the dwelling.
the offender commits an indictable offence in the premises which must proceed on indictment; or
the offender enters by means of a break and the value of damage caused by the break is of at least $30,000.
Section 427 Unlawful entry of vehicle for committing indictable offence – if the offence is committed in the night or the offender uses or threatens violence, pretends to be armed, is in company or damages or threatens to damage any property.
Section 430 Fraudulent falsification of records – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 433 Receiving tainted property – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Section 435 Taking reward for recovery of property obtained by way of indictable offences – if the amount in question is equal or more than $30,000 and the offender does not plead guilty.
Chapter 44 Offences analogous to stealing related to animals – if the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 468 Injuring animals– If the animal in question is stock, the value of the animals is at least $30,000 and the offender does not plead guilty.
Section 469 Wilful damage – if any of the following apply:
property is damaged or destroyed by explosion;
the property in question is—(i) a bank or wall of the sea or inland water; or(ii) a work relating to a port or inland water; or
if the property in question is any part of a railway, or any work connected with a railway
If the property in question is an aircraft or anything whatever either directly or indirectly connected with the guidance control or operation of an aircraft
If the property in question is a vessel, a light, beacon, buoy, mark or signal used for navigation or for the guidance of sailors, a bank, work or wall of the sea or inland water
If the property in question is a manufacturing or agricultural machine or another thing used, or intended for use, for manufacture or for performing a process connected with the preparation of agricultural produce and is destroyed or rendered useless
If the property in question is a well or bore for water or the dam, bank, wall, or floodgate of a millpond or pool.
Section 471 Damaging mines – if the value of the damage is at least $30,000 and the offender does not plead guilty.
Section 472 Interfering with marine signals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 473 Interfering with navigation works – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 474 Communicating infectious diseases to animals – if the value of any damage or detriment is at least $30,000 and the offender does not plead guilty.
Section 488 Forgery and uttering – if the document is a valuable security, insurance policy, testamentary instrument (whether the testator is living or dead) or registration document or is evidence of an interest in land, or a power of attorney, contract or document kept or issued by lawful authority OR the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
Section 498 Falsifying warrants for money payable under public authority – if the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
514 Personation in general – If the representation is that the offender is a person entitled by will or operation of law to any specific property, and the person commits the offence with intent to obtain such property or possession thereof or the value of any yield or detriment is at least $30,000 and the offender does not plead guilty.
There a number of indictable offences in Queensland that can or must be dealt with summarily in the Magistrates Court. Generally speaking, an indictable offence must be dealt with summarily if it carries a maximum sentence of three years or less, or it is an offence under part 6 of the Code (excluding Chapter 42A) for which the monetary value is less than $30,000 or the offender pleads guilty, and the offender is liable for a maximum period of imprisonment which is less than 14 years imprisonment.
When considering whether an indictable offence could or should must be dealt with summarily, one should consider the following:
As the Magistrates Court deals with offences more quickly and can normally only sentence an offender for up to three years imprisonment, there are potential advantages for a defendant in having a matter dealt with summarily. However, such a course is subject to section 552D, which requires the Magistrate to abstain from exercising its jurisdiction if the offender may not be adequately sentenced or if there are exceptional circumstances.
One suspects the sentence would have been more severe if he hadn’t been suffering from muscular dystrophy, although the guilty plea no doubt also helped:
Callum Joseph Haggerty was slumped in the dock, unable to look at the judge as she delivered her verdict in the Brisbane District court this morning saying that the acts were “despicable”.
On two occasions in 2015, victims were women that he had met online, where he used misleading information to lure them in, claiming he was a wealthy business owner.
He then used physical violence on multiple occasions to overpower the women, resulting in their respective rapes.
While on bail in 2016 for the previous offences he claimed a third victim.
The court heard that Haggerty used language such as, “It could be a lot worse for you” and “suck it up b**ch,” as a means to intimidate and humiliate his victims.
Prosecutor Matthew Hynes said in his submission that the rapist had an “appalling attitude towards women” and that his remarks were “cold blooded”. Continue reading “Online dating rapist sentenced to 10 years”
From late 2010 until April 2011, Ashraf Kamal Makary met with three young Korean women who had recently arrived in Australia and responded to an advertisement he placed on a website offering English language lessons in return for Korean lessons. He would make contact with them by phone using a false name, meet with them and offer them alcohol. According to each the three Korean women, they soon after lost consciousness. One of them woke up and saw his penis and that he was only wearing a t shirt. Another woke up at home with sore genitals and breasts, and made a complaint to police before going to hospital to obtain vaginal swabs. The other woke up while she was being raped and had pain all over her body. She also made a complaint to police and obtained vaginal swabs.
When Makary was visited by police on 11 April 2011, in his car they found two mobile phones, a box of Temazepam tablets, a box of condoms, a box of “Temtabs”, a pair of purple underpants belonging to one of the victims and a broken wine glass with residue in it. In his house police found Temazepam and a laptop containing the phone numbers and email addresses of the three Korean women.
The DNA evidence obtained from the swabs showed that some of the DNA obtained matched Makary’s. The two women who had obtained blood tests tested positive for Oxazepam, Temazepam, Aminonitrazepam and Nitrazepam. There was expert evidence that when Temazepam is ingested a part of it metabolises into Oxazepam and that when a person ingests Nitrazepam it is metabolised into Aminonitrazepam.
While on bail for these charges, Makary was charged with a further rape he committed on 13 April 2012 against another Korean woman he had contacted through the same website, breaching his bail condition of not being on the internet. He was remanded in custody as a result of this offence.
In 2014, Farr DCJ ruled that the charges against Makary in respect of the three women should be joined due to the striking similarity and underlying unity in the following relevant facts of each of the charges:
(a) the complainants are all young Korean women;
(b) the complainants all contacted Makary in response to an advertisement he placed on a website seeking to meet someone for the purposes of exchanging language skills;
(c) the same website was used on each occasion;
(d) Makary used a false name on each occasion;
(e) email correspondence then occurred, culminating the arrangement of a meeting;
(f) Makary selected the meeting place and time;
(g) Makary arrived at the meeting in his car;
(h) Makary indicated on each occasion that the complainant should get in his car after which he drove off to a park or park-like location at night;
(i) there had been no pre-arrangement in that regard;
(j) Makary brought drinks with him in the car which he offered to each complainant;
(k) each complainant felt dizzy or suffered amnesia after consuming some drinks or was found to have sedative-type drugs in their urine; and
(l) sexual activity subsequently occurred with each complainant, with the exception of one complainant who due to her presence of mind was able to resist his advances.
Makary gave evidence at his own trial.
On 3 June 2016, Makary was sentenced by Clare DCJ to 18½ years imprisonment after being convicted of three counts of administering a stupefying thing with intent to commit an indictable offence, two counts of rape and one count of attempted rape by a jury. The sentencing remarks included the following:
“You are a true serial predator who deliberately embarked on a course of hunting women to rape… In this case there is another aggregating factor and that is the fear of the unknown. His opportunity and capacity to do a great deal of perversion to the people he had captive There are two types of rapes. Is it more frightening for a victim, or worse for a victim, to be hit than it is to be drugged unconscious and detained for a number of hours?.. It’s not just the psychological trauma, it’s the physical risk involved. The risks from the drugs themselves … Death could have been the results of your client’s actions as well…
“The Prosecution has proved that you raped two women and came perilously close to raping the third. After weeks of scheming, the women were at your mercy to do with what you would. By that time, you had demonstrated that your only interest in them was malevolent. It defies credibility to consider that you did not exploit the opportunity you had created. In the absence of credible evidence to the contrary, this can only be viewed as protracted offending. [Amy] was with you for six hours. [Linda] had 12 hours unaccounted for. Both of those women bore indications of forceful or protracted violations and rough mistreatment. [Linda] had the additional injuries. For [Emma] who was not raped, there was extra danger in the way that you left her.”
Makary was subsequently also convicted and sentenced for the further rape committed whilst on bail. He was sentenced to a further term of imprisonment to be served cumulatively with the other offences.
Makary appealed both the conviction and sentence. Unusually, he self-represented in the appeal against conviction but was legally represented in the appeal against sentence.
Section 24 of the Criminal Code (Qld) provides that:
“A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.”
Section 95A of the Evidence Act 1977 (Qld) provides that:
“(3) A certificate, in the approved form, purporting to be signed by a DNA analyst and stating any of the following matters is evidence of the matter—
(a) that a stated thing was received at a stated laboratory on a stated day;
(b) that the thing was tested at the laboratory on a stated day or between stated days;
(c) that a stated DNA profile has been obtained from the thing;
(d) that the DNA analyst—
(i) examined the laboratory’s records relating to the receipt, storage and testing of the thing, including any test process that was done by someone other than the DNA analyst; and
(ii) confirms that the records indicate that all quality assurance procedures for the receipt, storage and testing of the thing that were in place in the laboratory at the time of the test were complied with.”
A sentencing judge may not take into account other offences in respect of which the accused has not been convicted even if the evidence at trial discloses the commission of such offences: R v Cooksley  Qd R 405 at 418 per McPherson J.
Section 668E(3) of the Criminal Code provides that:
“On an appeal against a sentence, the Court, if it is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.”
Section 159A of the Penalties and Sentences Act 1992 provides as follows:
“If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders.”
Appeal against conviction
In respect of in the appeal against conviction, Makary’s complaints in respect of section 24 of the Criminal Code were rejected because it was his sworn evidence that he had not had sexual intercourse with any of the three women, and none of the facts he pointed to could give rise to any inference that he held a reasonable and honest belief that one of the women did consent.
Makary argued the DNA evidence given by Ms Amanda Reeves, a senior reporting scientist in the Forensic DNA Analysis Unit of Queensland Health should have been excluded because it was hearsay evidence. However, this argument ignored section 95A of the Evidence Act 1977.
Makary argued that Clare DCJ erred by misdirecting the jury about the offence of attempted rape of which he was convicted as he contended that the Prosecution had to prove beyond reasonable doubt that he had not fulfilled his intention to rape. However, this proposition had been rejected in R v Barbeler.
The Court held that Makary’s criticisms of his Counsel’s failure at trial to directly ask one of the complainants that she had not had sexual intercourse with him in all the circumstances of the case could not be characterised as a failure, and in any event it fell nowhere near what must be shown to establish incompetence in legal representation of a character as to amount to a miscarriage of justice.
Makary argued that Farr DCJ’s decision to join the six charges was incorrect, however the Court rejected this submission because “more remarkably similar set of circumstances in which the same offences (or attempted offence) were committed would be difficult to imagine” meant that Farr DCJ’s decision to join the charges was correct.
As none of Makary’s arguments against his conviction had any merit, the appeal against conviction was dismissed.
Appeal against sentence
The Court opined that Clare DCJ’s reference to the Makary’s offending as “protracted offending” involving “protracted violations” could not be read otherwise than as a reference to multiple rapes, or the commission of some other unspecified and uncharged sexual offences, committed by Makary against his unconscious victims. Therefore Clare DCJ had erred and leave should be given to Makary to appeal against his sentence.
As a result, Makary had to be resentenced. The Court in resentencing Makary noted the following:
“The six offences of which [Makary] was convicted were the culmination of some weeks of effort by him to put these three young women at his mercy. His efforts to that end were calculated, methodical and sustained. He set out to hunt down three women who, by reason of their youth, their presence in a foreign land and their lack of proficiency in English were particularly vulnerable to entrapment and violation. He pretended to be willing to assist them, he exploited their solitariness here and he abused their preparedness to trust him. He devised a rape kit consisting of alcoholic drinks, innocuous looking orange juice, wine glasses, drugs and a car in which to transport his unconscious victims to his bedroom. The evidence showed that he roughly raped two of his victims and was ready to rape the third. He wanted to have them and he did have them at his mercy for hours. He drugged them by suspending the stupefying drug in an alcoholic drink which exacerbated the effect of the drugs. He was prepared to, and did, induce them into incoherence and illness. He had not the slightest concern for their safety or well-being. He let Emma out of his car in a drug-induced, inebriated state into an unfamiliar street, leaving her to crawl to some form of safety if she could, or into danger if that is what happened. He left his other two victims at their home careless of their ability to look after themselves and careless of their health. Linda was ill to the point of vomiting violently. All of them suffered unconsciousness, disorientation, inability to move and confusion. He drugged them not caring whether any of them had suffered from any condition that might have rendered her ingestion of the drugs he gave her particularly dangerous. He did these awful things to these women because he wanted to rape three different women on three successive nights. Indeed, as it happened, at the very time that Amy was being examined at the hospital, [Makary] was undertaking the subjugation and rape of Linda.
Furthermore, each of these women has been affected by the crimes committed against them. Because they were each rendered unconscious before they were raped, or in the case of Emma, before [Makary] attempted to rape her, they suffer from their lack of knowledge of what might have been done to them at [Makary’s] will. Each has suffered an enduring vulnerability. One of the complainants terminated a pregnancy for fear that the child might have been fathered by [Makary]. Amy suffers from post-traumatic stress disorder. Linda has changed from being a bubbly and bright young woman into a person who is more guarded. Notwithstanding this ongoing suffering, each of them had the great moral courage to submit themselves to the distress of legal process in a foreign country.
It could be said that this case is remarkable because there are no factors at all in mitigation of [Makary’s] guilt of these offences.
He did not plead guilty and even now maintains his innocence of these crimes. He has evinced not the slightest remorse or even empathy. He put the Crown to strict proof at the trial, including proof of continuity of the handling of DNA samples. He is a man who has shown no cooperation with authorities. There is not the slightest suggestion that he is amenable to rehabilitating himself. Indeed, on the contrary, while on bail for these offences we now know that he committed yet another, almost identical, offence against yet another Korean victim for which he has since been convicted.
[Makary] is mature and well educated. He cannot absolve himself by pointing to the callowness of youth as a factor. He did not submit that he committed these offences by reason of the effect upon him of any disorder, illness or other explicable compulsion.
Rehabilitation is always possible but there is no evidence of any hope for it here.”
Due to these numerous aggravating factors and the lack of mitigating factors in respect of the offending, Makary’s offending was more serious than the cases his lawyers attempted to rely on to show that Clare DCJ’s sentence was manifestly excessive. Accordingly, a majority of the Court (Sofronoff P & Bond J) held that the appeal against sentence should be dismissed.
McMurdo JA agreed with the majority in respect of the appeal against conviction, however, he dissented in respect of the appeal against sentence. McMurdo JA opined that because Clare DCJ had incorrectly taken into account the possibility that Makary’s offending involved further offences against the complainants, the correct sentence should be lower than the one imposed by Clare DCJ, particularly when taking into account the fact that Makary had served four years on remand prior to conviction which could not be declared pre sentence custody and he would also be required to serve at least 80 per cent of his sentence. McMurdo JA held that the appropriate sentence was therefore 16 years imprisonment.
Makary’s arguments against his conviction were evidently lacked merit. In addition, his appeal against conviction was hopeless because of the overwhelming evidence that pointed to his guilt.
Makary’s offending was extremely serious and was committed on three separate occasions over a fairly lengthy period of time. In addition, there were plenty of aggravating factors, and the only mitigating factor was his lack of prior criminal history. As a result, a severe sentence was warranted in order to denounce the offending, deter others and to protect the community from a dangerous serial sexual predator. As the further rape committed whilst on bail showed, Makary’s offending would have more than likely continued if he had not been incarcerated.
A 2015 District Court case has demonstrated how important it is to ensure that your solicitors have your current contact details and are able to contact you to obtain your instructions. The Claimant’s failure to do so in that case resulted in him losing the right to pursue his claim.
The Claimant was injured in a motor vehicle accident on 4 August 2012. He subsequently sent to the insurer a Notice of Accident Claim form. The insurer confirmed that the form was compliant and later admitted liability in full for the accident.
In about March 2013, the Claimant lost contact with his solicitors and did not contact them again until 29 July 2015. There was evidence later adduced in the Court of Appeal that he may have been avoiding the authorities as a result of a suspected arson.
The Claimant applied to the District Court for leave (special permission) to extend the time for bringing his claim in a court so that he would have time to comply with the legislative pre-proceeding requirements.
Section 11(1) of the Limitation of Actions Act 1974 provides that:
“an action for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) in which damages claimed by the plaintiff consist of or include damages in respect of personal injury to any person… shall not be brought after the expiration of 3 years from the date on which the cause of action arose.”
However, the Claimant also had to comply with pre-proceeding steps provided by the Motor Accident Insurance Act 1994 prior to commencing his claim, including cooperating with the insurer, making himself available for independent medical examinations and attempting to resolve the claim by compulsory conference before his claim for damages could be filed in court.
Section 57 of the Motor Accident Insurance Act 1994 provides as follows:
“(1) If notice of a motor vehicle accident claim is given under division 3, or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.
“(2) However, the proceeding may only be brought after the end of the period of limitation if it is brought within—
(a) 6 months after the notice is given or leave to bring the proceeding is granted; or
(b) a longer period allowed by the court.”
The District Court dismissed the application to extend the time for the following reasons:
The result of the District Court’s decision was that the Claimant missed the time limit and his claim was statute barred. This decision was upheld on appeal. As a result, the Claimant lost his right to pursue the claim. Costs were awarded against him in the District Court and the Court of Appeal.
This is an important case concerning a Claimant’s responsibilities and obligations in respect of his or her own claim.
This case provides a salutary lesson in terms of the following:
Personal injury claims are serious matters and must be taken seriously. In particular, it is extremely important for a Claimant to comply with their obligations at law, as failing to do so may jeopardise their claim.
Aaron Michael Brain had been dismissed from his employment with Inghams Enterprises Pty Ltd in early January 2013. On the night of 1 February 2013, Brain approached different female Asian workers as they left at the end of their shifts in the carpark of Inghams Enterprises’ Murrarie factory. The first three women he approached between about 11:00pm and 11:45pm found his behaviour to be strange and felt some apprehension, but managed to disengage and leave.
At 11:45pm Brain approached the Plaintiff Kim Yen Tat and gave her the false story about having a pregnant partner who needed help. She declined to accompany him, walked over to her car, and got into the driver’s seat. However, Brain stopped her from closing the car door. He then said “Can I give you a hug?” and tried to put his hand on her neck. She pushed his hand away and felt something stick into her hand. She then pushed him away, got out of the car screaming and ran away. Brain left the scene after workers came to her aid.
Immediately after this incident, Inghams Enterprises send a notice to all its employees warning them of the risks of being in or remaining in the carpark alone.
Brain, who was on parole for other violent offences at the time of the incident, had his parole suspended on 6 February 2013. He later pleaded guilty to assault occasioning bodily harm in respect of the incident and on 23 January 2014 was sentenced to two years imprisonment with a parole eligibility date after 6 months.
The Plaintiff suffered significant post-traumatic stress disorder injury from the incident and sued her employer for negligence.
“305B General Principles
(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things):
(a) the probability that the injury would occur if care were not taken;
(b) the likely seriousness of the injury;
(c) the burden of taking precautions to avoid the risk of injury.”
“305C Other Principles
In a proceeding relating to liability for a breach of duty—
(a) The burden of taking precautions to avoid a risk of injury includes the burden of taking precautions to avoid similar risks of injury for which the person may be responsible; and
(b) The fact that a risk of injury could have been avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done; and
(c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of injury does not of itself give rise to or affect liability in relation to the risk and does of itself constitute an admission of liability in connection with the risk.”
(1) A decision that a breach of duty caused particular injury comprises the following elements—
(a) the breach of duty was a necessary condition of the occurrence of the injury (“factual causation” );
(b) it is appropriate for the scope of the liability of the person in breach to extend to the injury so caused (“scope of liability”).”
The primary judge noted that it did not matter that the precise manner in which the plaintiff received her injuries was not foreseeable, and that he was required to bring a prospective, rather than a hindsight analysis to bear on the question of foreseeability. He also acknowledged that the essence of the Inghams Enterprises’ argument was that the injury was not foreseeable due to the practical absence of any prior incidence of violence by a third party to an employee.
However, primary judge relied on expert evidence from engineers experienced in risk management and security assessments to the effect that the safety of workers from violence and assault should be managed proactively, and held that Inghams Enterprises should have engaged in an assessment of the risks of third party violence to its employees as well as how it should respond to those risks. According to the primary judge, Inghams Enterprises could and should have the installed duress alarms at regular intervals in the carpark and warned its employees in a similar way the way it did after the incident. Inghams Enterprises’ reliance on factually distinguishable cases was rejected because of evidence at trial that many female workers left the workplace late at night five times a week through a large, open car park in an industrial area.
As a result, the primary judge found that Inghams Enterprises had been negligent and had to pay damages to the plaintiff. Inghams Enterprises appealed against this judgment.
On appeal, Inghams Enterprises argued that the primary judge had erred in finding that Inghams Enterprises should have taken action to prevent the incident which caused the injury. It argued that the primary judge’s reference to the events after the incident were contrary to s305C(c) of the Workers’ Compensation and Rehabilitation Act because that approach treated the instruction which had been given to the staff as an admission of liability. Inghams Enterprises also contended that the findings erroneously involved the application of hindsight, because they were inherently specific to the unusual facts of the case, which did not involve a single assault, but a protracted course of abnormal conduct prior to an assault. The Court of Appeal held that these arguments did not take into account the abovementioned expert evidence led at trial.
Inghams Enterprises also submitted that the plaintiff had failed to prove that the installation of duress alarms and training of and warnings to staff would have prevented the incident, and therefore causation had not been established. It was argued that the primary judge’s conclusions on causation rested on the propositions that had duress alarms proper training and instructions been provided, at least one of the other workers involved in the earlier encounters with Brain would have been sufficiently concerned about him that they would have called security, the security guard receiving the report would have left the security office and found Brain, Brain would have been required to leave, and Brain in turn would have complied with that direction. Justice Bond held that it was not open on the evidence for the primary judge to reach such conclusions.
Furthermore, as Gotterson JA noted, the trial judge did not make findings that a failure to install duress alarms or upgrade of the CCTV monitoring was the cause of the respondent’s injuries.
Because the judge erred in finding that causation had been established, the appeal was allowed and the decision of the primary judge was set aside, with costs awarded to Inghams Enterprises.
This case is a good reminder that even if an employer has breached their duty of care, it is still necessary for a plaintiff to prove that the breach caused their loss. In this case, there was insufficient evidence to establish that training and warnings would probably have prevented Brain from approaching the Plaintiff in the carpark. Because causation at law was not proven at trial, the result was that the claim against Ingham Enterprises had to fail.