Cases and authorities

COSTS – plaintiff succeeded on the basis of submissions that first emerged in its reply submissions filed only days before the hearing and in oral submissions during the hearing – plaintiff sought indemnity costs on the basis of defendant’s failure to accept Calderbank offer made by plaintiff four months earlier – application for indemnity costs dismissed.

EQUITY — trusts and trustees — judicial advice — application by four plaintiff trustees for judicial advice in managing and administering four related trusts — where original trust deeds and copies cannot be found — where letter of advice from accountant recommended structure involving establishment of trusts and terms concerning the identity of unitholders, discretionary beneficiaries and entitlements — where evidence that trusts established and have operated for many years — where searches revealed template trust deeds and specific information concerning trust names, establishment dates, settlement sums, applicable laws and details of the settlors, trustees and beneficiaries — where applicable law of trusts is that of Victoria or Queensland — jurisdiction of Court to provide judicial advice in its inherent jurisdiction and based on cross-vesting legislation of Victoria and Queensland — clear and convincing proof not required — certainties of intention, subject matter and objects made out — judicial advice provided

PLEADINGS – amendment – application for leave to amend – whether proposed amendments articulate in greater detail a case already pleaded, or introduce a new case – no question of principle. EVIDENCE – expert evidence – whether leave should be granted to plaintiff to lead expert evidence modelling projected future financial position of first defendant responsible entity at the time that its directors allegedly exercised their powers to cause the responsible entity to enter into certain transactions for an improper purpose – no question of principle.

CIVIL PROCEDURE — Stay of proceedings — Dispute concerning line items included in Earn-Out Accounts — Where parties have agreed to refer certain Earn Out disputes for expert determination — Whether the dispute fell within the scope of the experts role — Where matters referable to expert determination included which matters could be relied on in reaching relevant calculation — Whether court proceedings are precluded in the circumstances — Implicit exclusion of jurisdiction

CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Representations — Where unitholders’ agreement represented to be “standard” or “simple” — Where agreement contained unusual terms imposing high interest obligation on excess capital contributions — Where such terms inconsistent with prior informal agreement of parties CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Reliance —Whether representee relied on representation given commercial imperatives — Where unitholders’ agreement signed in informal, quasi-familial context — Where representee would not have entered agreement had effect of impugned clauses been disclosed CONTRACTS — Misleading conduct under statute — Misleading or deceptive conduct — Causation of loss — Where informal agreement not binding — Where claimants entered into unitholders’ agreement in reliance upon misrepresentation — Whether claimants proved probable counterfactual on which loss was alleged — Where “no transaction” case pleaded and run at trial — Where “different transaction” case advanced on appeal — Where counterfactual not put to relevant witness — Whether new point should be permitted on appeal EQUITY — Trusts and trustees — Breaches of trust — Whether payment by mistake — Whether mistaken payment became asset of trust — Where payment used to discharge trust liability — Where security later given over trust property — Whether trustee breached duty by preferring interests of unitholder APPEALS — Leave to appeal — Whether leave required — Interlocutory decisions — Whether declaration that terms of contract void finally determined rights of parties — Where other substantive issues and consequent relief left undetermined

CIVIL PROCEDURE — approval of settlement pursuant to s 76 of the Civil Procedure Act 2005 — where plaintiff has not yet reached the age of majority — where claim arises out of spinal surgery performed negligently — whether to approve settlement — settlement approved

REAL PROPERTY — possession — plaintiff mortgagee’s claim for possession — several promises by defendant to pay arrears — where Sheriff has already taken possession — where defendant makes application for urgent stay of plaintiff’s possession — whether to grant stay — stay refused

CRIMINAL PROCEDURE – trial – murder – evidence – application for Crown witness to give evidence via AVL – not opposed

CRIME – trial - engaging in a terrorist act – political or ideological cause to be advanced particularised as “right-wing extremism” – evidence of expert opinion as to words and phrases used by right-wing extremists – evidence of expert opinion as to ideology reflected by right wing extremists – evidence of expert opinion as to meaning to be taken from accused’s writings – question of whether the opinions based on specialised knowledge – obscurity of reference material consulted by expert – question of admissibility of factual material considered by expert in forming opinion - question of discretionary exclusion – refusal of expert to speak to accused’s legal representatives

LEASES AND TENANCIES — Default and termination — Relief against forfeiture — Forfeiture of a lease — Where plaintiffs are sublessees — Where sublessees sought to stay forfeiture on terms that new lease be granted — Whether sublessees entitled to relief if head lessee repudiated head lease — Whether s 130 of the Conveyancing Act 1919 (NSW) is available where head lessee relies on common law rights — Where head lessee repudiated contract and s 130 not available CONTRACTS — Termination — Repudiation of contract — Whether head lessee repudiated lease with head lessor — Where head lessee entered voluntary administration and administrators did not seek to exercise property rights — Whether the issue of a s 443B notice and an attached letter amounted to repudiation — Where repudiation established other than by reference to s 443B notice LEASES AND TENANCIES — Relief against forfeiture — Conditions under new lease to be granted to a sublessee — Broad discretion to be exercised as to appropriate terms according to the circumstances — Whether sublessee should be required to pay head lessee’s rental arrears — Whether sublessee should be required to rectify a stormwater basin — Whether a bank guarantee should be given and for what duration — Whether lease should be on a “triple net” or “net” basis

ASSOCIATIONS AND CLUBS – registered organisations – rights, duties and liabilities of members – where plaintiffs and first defendant are members of the second defendant guild registered under the Fair Work (Registered Organisations) Act 2009 (Cth) (“the Guild”) – where first plaintiff owns rights and privileges in respect of showground spaces allocated by the Guild – where first plaintiff applied to transfer her rights and privileges in respect of those spaces to the second plaintiff – where first defendant lodged objections to transfers – where transfers not effected by Guild – claim by plaintiffs seeking a declaration that the second plaintiff is entitled to be recorded as the owner of the showground spaces the subject of the transfer and an order that the Guild give effect to the transfer – where Guild files submitting appearance – held that the first plaintiff has done everything which is necessary for her to have done to effect a transfer of the legal title to the showground spaces – orders to be made to give effect to transfer EQUITY – trusts and trustees – constructive trusts – cross-claim by first defendant seeking a declaration that a constructive trust over various showground spaces arises by virtue of the termination of a joint relationship or endeavour with the first plaintiff – whether the first plaintiff and first defendant were in a joint relationship or endeavour involving the pooling of showground spaces – pooling of showground spaces not established – requisite joint relationship or endeavour not established – held that the rights to the first plaintiff’s showground spaces are not held on constructive trust – held that first plaintiff remained free to transfer the rights to the showground spaces to the second plaintiff ESTOPPEL – estoppel by representation – detrimental reliance – cross-claim by first defendant seeking a declaration that the first plaintiff is estopped from denying that a two-thirds share of showground spaces is held for the benefit of the first defendant – statements alleged by first defendant as giving rise to estoppel not established – estoppel not made out

CIVIL PROCEDURE — Hearings — Estate litigation — Principally probate issues focussing on deceased’s capacity and rectification of a Will though other relief sought regarding property including an alternative family provision claim — Adjournment — Applicable principles — Vacation of hearing dates — Illness of counsel — First Defendant’s counsel suffers several medical episodes requiring hospitalisation and investigations — Initial episodes not of sufficient moment at that stage to require the applicant then and there to apply to vacate the hearing dates — Counsel’s discussion with medical specialist on 12 May 2023 indicating imperative for counsel to be hospitalised the decisive event to prompt application to vacate hearing dates — Various considerations applicable to decision to vacate — A significant consideration being the volume and complexity of materials for any new counsel who might have been available to have been briefed to consider — Materials in Court Book and Additional Document Bundle exceed 2,500 pages, including recently incorporated set of over 1,400 pages of hospital, healthcare and medical records — Materials include reports of over 20 medical practitioners and specialists spanning a period of over 20 years COSTS — Principles where adjournment not arising by fault of the applicant — Meaning of costs to be a particular party’s costs in the cause — Discussion regarding cancellation fees SUCCESSION — Cancellation fees in estate litigation — Probate, Will rectification and family provision costs orders — The particular nature of probate, Will rectification and family provision proceedings is a relevant consideration for the Court in exercising its discretion on costs — No evidence concerning practice regarding cancellation fees or the reasonable need for such fees to be recoverable from another party in probate and estate litigation — On particular facts of the case direction made that cost orders not include cancellation fees

ENVIRONMENT AND PLANNING — Land and Environment Court — injunctive relief sought by appellants to restrain respondent from conducting a “retail pharmacy” — pharmacy operated by respondent as part of a medical complex but where members of the public could purchase items — where occupation certificate specified “retail pharmacy” (not including a “medical pharmacy”) as an excluded use and relevant planning instrument specified “retail premises” as a prohibited use — primary judge held no independent “shop” use or “retail pharmacy” use had been established — whether primary judge erred in concluding the respondent was not engaged in the prohibited use of a “shop” — pharmacy’s operations answered the descriptions “retail premises” and “shop” — whether former or current provisions of Environmental Planning and Assessment Act 1979 (NSW) applied — reg 18A of Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 (NSW) not engaged and thus former provisions did not apply — whether primary judge erred in not finding premises was being used as a “retail pharmacy” — distinction between “retail” and “medical” pharmacy is the sale of medicines and pharmaceutical items to the public and dispensing of such products to out-patients of the medical complex — primary judge’s findings satisfy the former

APPEAL – interest on judgment – judgment of District Court varied – new order backdated to date of judgment in District Court – costs of appeal – appellant partly successful – respondent to pay costs proportionate to appellant’s success

CRIME — proceeds of crime — application for restraining order — risk of dissipation of assets — custody and control orders — delayed notification of orders — limited suppression and non-publication orders

CIVIL PROCEDURE — NCAT orders for possession of property — application for a stay of a warrant for possession — plaintiff seeks to appeal various NCAT decisions — whether stay is in the interests of justice — defendant entitled to fruits of litigation — statutory right of appeal nugatory if the stay is not granted

COSTS – party/party – whether lump sum should be paid on account of costs – where costs order concerns interlocutory application to enforce post-contractual restraints and expedited separate hearing of whether final injunctions should be granted – where other claims outstanding – where interlocutory application hearing also concerned confidentiality obligations COSTS – party/party – motion to vary undertakings – where party released from undertakings and new undertakings eventually made by consent, after negotiations as to wording of varied undertaking – whether appropriate order no order as to costs

CRIMINAL LAW – Sentence – Murder – Offender found guilty after trial – necessary to find facts consistent with verdict of jury – domestic violence offence – offender angered by victim’s relationship with another man – victim impact statements – no prior criminal history – location of victim’s body not disclosed – no mental health issues casually related to offending

COSTS – apportionment of costs – whether the defendant bettered the terms in its Calderbank offer – whether apportionment should be made reflecting successes and failure of parties on particular issues

BUILDING AND CONSTRUCTION – jurisdiction of NSW Civil and Administrative Tribunal under the Home Building Act 1989 (NSW) – where claim substantively concerns breach of statutory warranty APPEALS – leave to appeal – whether leave required – interlocutory decisions – where matter transferred from Local Court to NSW Civil and Administrative Tribunal

PRACTICE AND PROCEDURE — application to summarily dismiss proceedings where plaintiff is seeking relief from appeal proceedings in the Civil and Administrative Tribunal of New South Wales (the Tribunal) — where plaintiff has not availed herself of available rights of appeal from the Tribunal — where the plaintiff has commenced two sets of proceedings in this Court, seeking, in effect, the same relief, making serious allegations, including of physical and chemical abuse, forced labour, force feeding and mechanical restraint — HELD — proceedings should be dismissed as an abuse of process

COSTS — Party/Party — Costs orders in interlocutory proceedings — Where party granted costs thrown away by reason of other party amending its pleadings — Whether party entitled to gross sum costs of mediation as part of the costs thrown away — Where parties were waiting for evidence to be completed before attending mediation — Where amendments result in new evidence being filed — Where mediation failed because it was conducted on a false basis — Where it is likely the court will order a further mediation once all the new evidence is complete

HIGH RISK OFFENDERS — application by the State for an extended supervision order (“ESO”) pursuant to the Crimes (High Risk Offenders) Act 2006 in relation to the defendant — where defendant accepted that the statutory preconditions for an ESO were established — where defendant only disputed one of the conditions imposed by the proposed ESO — electronic monitoring condition — whether ESO should be made — whether electronic monitoring condition should be imposed — ESO made — electronic monitoring condition imposed

CIVIL PROCEDURE — Originating process — Amendment — claim under Design and Building Practitioners Act 2020 (NSW) — Where no evidence of non-compliance with the Building Code of Australia — Discretionary matters — Where delay in bringing application — Where no evidence of irremediable prejudice — Leave granted conditional on evidence that building work did not comply with Building Code of Australia CIVIL PROCEDURE — Originating process — Amendment — claim under Design and Building Practitioners Act 2020 (NSW) — Whether claim apportionable — Determination as to the applicability of Pt 4 of the Civil Liability Act 2002 (NSW) unnecessary to grant of leave to amend

APPEALS – Leave to appeal – where neighbourhood association (respondent) commenced Local Court proceedings claiming unpaid levies from lot owner (applicant) and, relying on a by-law of a neighbourhood management statement, costs incurred in recovering unpaid levies – where Local Court ordered applicants to pay incurred costs – where application for leave to appeal refused on two grounds and appeal otherwise dismissed in Supreme Court – where subsequent notice of motion seeking orders in relation to that decision also dismissed – whether leave to appeal should be granted in respect of both decisions – whether arguments in support of application have merit – application for leave to appeal dismissed

CRIME – Appeal against sentence – indicative sentence for s 166, offence greater than jurisdictional limit of Local Court – aggregate sentence informed by irrelevant consideration – error conceded by Crown – resentence necessary – more severe sentence warranted – appeal dismissed.

CRIME – appeals – appeal against conviction – unreasonable verdict – principles to be applied in determining an unreasonable verdict ground of appeal where the accused was found guilty after a trial before judge alone – relevance of the reasons of the trial judge – proper approach to arguments alleging specific error in the reasoning of the trial judge – whether trial judge ought to have entertained a reasonable doubt about the accused’s guilt CRIME – appeals – appeal against conviction – unreasonable verdict – historical sexual offences against three complainants – where appellant sought to impugn reliability of complainants’ evidence on appeal – inconsistencies in complainants’ evidence concerning questions of chronology and timing – whether inconsistencies produced reasonable doubt about the complainants’ identification of the appellant as the perpetrator of the offences – advantage of trial judge in seeing and hearing witnesses give evidence – whether inherently improbable that appellant would commit acts of child sexual abuse in the presence of others CRIME – appeals – appeal against conviction — miscarriage of justice – whether failure of defence counsel to adduce evidence of the accused’s good character gave rise to miscarriage of justice – whether failure of defence counsel to put evidence of prior criminal convictions to witnesses as a basis for challenging their credibility gave rise to miscarriage of justice – whether appellant deprived of real chance of an acquittal – no miscarriage of justice MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – appeal from qualified findings of guilt after special hearing conducted pursuant to s 55 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether qualified findings of guilt were unreasonable or unsupported by evidence – principles to be applied – relevance of the reasons of the trial judge – proper approach to arguments alleging specific error in the reasoning of the trial judge

CRIMINAL LAW – appeal against aggregate sentence – whether sentence is manifestly excessive – whether sentence discount applied to all offences – whether Bugmy principles applied

CRIME — Appeals — Appeal against sentence — Historical sex offences — whether sentencing judge took adequate account of delay CRIME — Appeals — Appeal against sentence —finding of special circumstances — applicant previously sentenced for historical sex offences - principle of totality — whether total term of continuous imprisonment excessive and parole period inadequate — whether sentencing judge erred by failing to backdate commencement of sentence — alleged manifest excess CRIME — Appeals — Appeal against sentence — whether sentencing judge erred in finding evidence of post-offence good character of little weight CRIME — Appeals — Appeal against sentence — distinction between lack of further convictions and finding that offending behaviour ceased

DECEASED ESTATES – Application for a grant of special administration ad colligenda bona defuncti – Where deceased was the shareholder in and sole director of a company which has received a creditor’s statutory demand under the Corporations Act 2001 (Cth) – Where it is not known with certainty if the deceased left a will but none has presently been found – Necessity for the appointment of a special administrator to protect the interests of the company which may need to bring an application to set aside the statutory demand – Where time limit will imminently expire – HELD – Orders made for the grant of special administration ad colligenda bona defuncti JURISDICTION – Where the plaintiff is resident in Western Australia, the company’s registered office is in Western Australia and all other potentially interested persons are in Western Australia – Jurisdiction to make the orders sought conferred on the Court by Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), s 9(a)

CIVIL PROCEDURE — hearings — adjournment — where plaintiff applied for adjournment of final hearing of proceedings — where basis for adjournment was plaintiff’s significant, recent personal turmoil unrelated to the proceedings — where fourth defendant does not consent to application for adjournment — where proceedings have resolved with respect to the other defendants — eight-week adjournment granted

CIVIL PROCEDURE — summary dismissal of proceedings — joinder of appropriate defendants — abuse of process — vexatious proceedings — scandalous allegations — summary dismissal of proceedings ordered

CRIMINAL LAW — Evidence — Murder trial — Evidence by audio-visual link — Application by prosecutor for AVL direction — Where application opposed — Where witness lives interstate — Where witness had a fall and injured himself — Where witness has been diagnosed with pneumonia — Where witness still suffers chest pain

Practice and Procedure – summary dismissal – no question of principle

STATUTORY INTERPRETATION – surrogacy agreement – statutory requirement that agreement by “signed” by parties – electronic signature by one party – whether sufficient

CIVIL PROCEDURE — Application for permanent stay of proceedings concerning alleged assault and sexual abuse of plaintiff by former teacher — no applicable limitation period — relevant principles — consequences of delay — where no complaint made about alleged perpetrator before his death — where relevant documents unavailable — where other relevant witness has died — whether discretion should be exercised — Civil Procedure Act 2005 (NSW), s 67 — Uniform Civil Procedure Rules 2005 (NSW), r 2.1 — proceedings stayed LIMITATION OF ACTIONS — Torts — child abuse — whether proceedings should be permanently stayed — Limitation Act 1969 (NSW), s 6A

APPEALS — appeal from Local Court — claim for payment of outstanding legal costs — where Court of Appeal earlier awarded disputed legal costs to client as damages payable by a third party — where client fails to pay legal costs despite being paid these costs as damages and then successfully resists their recovery in Local Court — whether conflicting judgments given by Court of Appeal and Local Court about the disputed costs — whether client has obtained impermissible windfall as the result of wrongdoing and an abuse of process — whether Legal Profession Uniform Law (NSW) prohibited solicitor from bringing Local Court proceedings — appeal upheld

EQUITY – remedies – partnership accounts – insolvency practice – value of uncompleted administrations – value of website

SUCCESSION – Family provision – claim by son-in-law of the deceased – Sole residuary beneficiaries are the daughter and her husband, another son-in law of the deceased – Reasonably large estate – Dispute as to nature of Plaintiff’s relationship with deceased – Plaintiff alleges membership of the household of which the deceased was a member and partial dependency – Whether rent free accommodation given because of relationship with deceased – Whether any factors warranting the making of the application – Not so satisfied - Summons dismissed – No costs order sought against Plaintiff who had conditional costs agreement with his own solicitors

HIGH RISK OFFENDERS – Extended Supervision Order – unacceptable risk – narrow issue on Conditions – issues resolved – unacceptable risk proved to high degree of probability – Extended Supervision Order issued for 2 years

CIVIL – costs – costs variation – application for indemnity costs – orders sought that parties bear their own costs, or alternatively costs be a specified gross sum amount – whether costs should be apportioned to reflect the degree of success on distinct issues – costs awarded in the same terms as the original order – costs follow the event

LEASES AND TENANCIES — rent and outgoings — failure to pay — where lease terminated for breach of essential term and plaintiff entitled to recover damages from lessee LEASES AND TENANCIES — repairs, maintenance and alterations — damage to premises — where defendant undertook unauthorised works — no issue of principle

CHARITIES AND NOT-FOR-PROFITS — charitable gifts and trusts — cy-près scheme — application to extend permitted geographical area of operation of charitable trust — whether effect of present terms of the charitable trust is that they have ceased to provide a “suitable and effective method” of using trust property for the purposes of Charitable Trusts Act 1993 (NSW), s 9 — where future financial viability of the charitable trust depends on extension of geographical area and possible expansion of permitted purposes — whether proposed clause defining expanded purposes of charitable trust is unjustifiably broad

COSTS — no issue of principle

PROBATE — Application by widow of the deceased for security for costs in relation to a probate dispute where deceased made a series of Wills providing substantial benefit to his sister, a nephew and niece all resident in Ecuador and including a 2018 Will post-dating the deceased’s marriage to the widow — Three days prior to his death, brought upon by respiratory failure and diffuse large B-cell lymphoma, the deceased made a Will (2021 Will) excluding those relatives and substantially benefiting the widow and her children from another marriage — Respondents challenge 2021 Will on grounds of testamentary capacity and “suspicious circumstances” bearing upon knowledge and approval — The limited evidence before the Court raises matters occasioning doubt on the grounds of challenge as to the validity of the deceased’s final Will for the purposes of assessing the prospects of success and merits of the proceedings — No dispute as to the validity of the 2018 Will — Despite the respondents being plaintiffs in the proceedings, the real issues in dispute concern the validity of the final 2021 Will on which the applicant has the legal onus of proof — Order for security for costs refused PROBATE — Costs — Security for Costs —Respondents ordinarily resident outside Australia —No assets in Australia — Application pursuant to r 42.21 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) — Discussion of applicable principles — The same security for costs principles apply to all proceedings but their application depends upon the facts of the particular case including the peculiarities of the nature of the proceedings which are the subject of the application PROBATE — Discussion of the nature of probate proceedings and distinctive features regarding the role of parties in probate proceedings — Consideration of such differences from ordinary civil litigation PROBATE — Costs — Discussion of nature of costs orders in probate proceedings — Probate costs exceptions to costs following the event not confined to instances of “the testator causing or being responsible for the litigation” or “cases inviting reasonable investigation” — Costs jurisdiction and available orders in probate more flexible than the so-called “usual exceptions” PROBATE — Costs — Security for Costs — Mechanisms in probate proceedings for achieving objectives associated with security for costs rationale without ordering security STATUTORY CONSTRUCTION — Definition of “plaintiff” and “defendant” for the purposes of the UCPR — Those terms not relevantly defined in the UCPR nor the Dictionary to the UCPR — The terms “plaintiff” and “defendant” construed by application of provisions of s 11 Interpretation Act 1987 (NSW) that words and expressions that occur in an instrument, which includes rules of Court, have the same meanings as they have in the Civil Procedure Act 2005 (NSW) JUDGMENTS — Enforcement of judgments in foreign jurisdiction in particular in Ecuador

CONTRACTS – intention to create binding relations – written agreement between the parties in the form of a letter in which they mutually acknowledge and agree in relation to future supply contracts under which they might supply to third parties patient entertainment systems that they will honour the intent of previous discussions in specifically identified ways including by each contributing 50% of costs and by splitting gross profits 50/50 – where the agreement includes an undertaking to commence negotiations in good faith, to draft an agreement that suits both parties for a long-term relationship – whether their agreement with respect to future contracts is binding – HELD – it is binding EQUITY – fiduciary duties – whether the parties’ relationship was fiduciary in nature – whether their relationship was one of mutual confidence – whether one party undertook and agreed to exercise a discretion which would affect the interests of the other party, both in a legal and practical sense – HELD – agreement binding and the parties’ relationship was fiduciary DAMAGES – quantification – discounted cash flow method – where calculation adopted by primary judge included a deduction for future costs of particular items based on a model not agreed between the parties’ experts and based entirely on a party’s guesswork – where respondent was in a better position than the appellant to provide evidence supporting the deduction – HELD – deduction should not be included

COSTS – costs on appeal – where appeal allowed in part – apportionment of costs where mixed outcome on appeal – significance of successful ground of appeal – costs at first instance – re-exercise of costs discretion where different outcome on appeal

CIVIL PROCEDURE – Costs orders – Applicant seeking gross costs assessment pursuant to section 98(4)(c) of the Civil Procedure Act 2005 (NSW) – Costs of seeking a gross sum assessment can also be assessed on a gross sum basis – Discount of 30% applied to professional fees – Assessed gross sum of $14,300.00

NON-PUBLICATION ORDER — orders made to redact the judgment in order to protect the applicant’s identity due to assistance given to authorities — order necessary to protect the applicant’s safety

Criminal Law – Rape – Appeal against conviction – Capacity – Where appellant charged with 15 counts of rape and one count of indecent treatment of child under 16 – Where conceded or reasonable doubt as to whether appellant over 14 years of age for five counts – Where Criminal Code (Qld), s 29(2) states presumption of incapacity of person under 14 years rebuttable by evidence of capacity to know person ought not do the act – Where presumption of incapacity rebuttable by evidence of knowledge of moral wrongness at common law applying RP v The Queen [2016] HCA 53; (2016) 259 CLR 641 – Whether what is required by s 29(2) to rebut presumption of incapacity equated with what is required by common law – Whether reasonable doubt as to whether appellant over 14 years of age – Whether evidence of capacity sufficient to rebut presumption where applied to counts of which appellant convicted – Whether retrial should be ordered if evidence insufficient to rebut presumption of incapacity. Words and phrases – "acquittal", "actual knowledge", "capacity to know", "criminal responsibility", "doli incapax", "indictment", "inference", "intellectual and moral development of child", "jury directions", "moral wrongness", "ordinary principles of reasonable people", "presumption of incapacity", "proof of capacity", "rape", "reasonable doubt", "rebut", "retrial", "serious wrongness". Criminal Code (Qld), s 29.