Australian Courts of Appeal (26 October 2026)

Send us Fan Mail Eight headnoted appellate decisions from four courts in the edition of Monday 26 October 2026, with the Queensland, Victoria, Western Australia, ACT, Tasmania and Northern Territory editions of the same day folded in. When defence counsel's failure to put a point is a rational forensic decision, and deterrence for an offender with a brain injury; an accused bound by counsel's choices; a superior court directing a tribunal on remitted costs; family violence cross-examination protections, foreign charges and interpreters in a parenting appeal; and harmful proceedings orders and leave to appeal. A sexual offence appeal and children's parenting matters are reported as legal doctrine only. Criminal Law Desk (opening story). Large v R [2026] NSWCCA 175 - the question is not counsel's incompetence but whether, viewed objectively, a material irregularity occurred, and there is none where the course is explicable as a rational forensic decision that could yield a legitimate advantage (Stern JA, Dhanji J agreeing); not putting an inconsistency to the complainant or seeking her recall was such a decision although counsel misunderstood the rule in Browne v Dunn; Fagan J found conspicuous errors but no realistic effect on the verdicts; the Crown was not obliged to re-examine or seek recall. Where a sentencing judge accepts that a mental condition contributed to the offending, the judge may be required to consider whether general and specific deterrence carry reduced weight even absent submissions; serious injustice shown. Extension and leave granted; conviction appeal dismissed; sentence appeal allowed and the applicant resentenced (Stern JA, Fagan and Dhanji JJ; also the New South Wales brief). Legal doctrine only. JADE Doyle v Bott [2026] NTCA 10 - on a s 51 Supreme Court Act 1979 (NT) appeal the question is whether the order below was wrong, and failing to correct a Local Court error is itself error; an accused is bound by counsel's conduct of the trial even without or contrary to instructions or negligently, and only flagrant incompetence giving rise to a mistrial suffices (R v Birks); absent corroborating material is not of itself error; describing the appellant as "outspoken" to resolve a discrete issue raised no apprehension of bias. Appeal dismissed (Kelly and Blokland JJ, Riley AJ; also the Northern Territory edition). JADE Public Law Desk . Secretary, Department of Planning, Housing and Infrastructure v Thaler (No 2) [2026] NSWCA 226 - an order serving no purpose need not be made where a consent notation in the Tribunal fixed the remitter's scope; the costs of an appeal are not decided before the practical outcome of a remitter is known; the power in Sch 5 cl 29(8) Civil and Administrative Tribunal Act 2013 (NSW), conferred on a superior court and construed broadly, authorises directing NCAT to decide remitted appeal costs without the s 60(2) special circumstances requirement. Direction made; motion otherwise dismissed; no order as to the motion's costs; the disciplinary action remains to be decided by the Tribunal (Leeming and Ball JJA, Price AJA; also the New South Wales brief). JADE Family Law Desk (legal doctrine only). Klimova & Klimova [2026] FedCFamC1A 190 - s 102NA Family Law Act 1975 (Cth) protects alleged victims of family violence in cross-examination and is not an alternative form of legal aid; an "offence involving violence" is not confined to Australian offences but needs clear evidence of the charge and its particulars, and a foreign family violence order is outside the s 4 definition though relevant to the discretion; a s 102NA order or refusal is not separate