Andersen v Winston - [2011] QDC 14

DISTRICT COURT OF QUEENSLAND

CITATION:

Andersen v Winston [2011] QDC 14

PARTIES:

NEILS WILLIAM ANDERSON
(appellant)

v

GLEN ROBERT WINSTON
(respondent)

FILE NO/S:

BD 1722/10

DIVISION:

Appellate

PROCEEDING:

Appeal against conviction

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

24 February 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 February 2011

JUDGE:

Ryrie DCJ

ORDER:

Appeal allowed, conviction quashed, verdict of acquittal entered

CATCHWORDS:

APPEAL – against conviction – whether guilty verdict was unsafe and unsatisfactory

Justices Act 1886 (Qld), s 222, s223
Transport Operations (Road Use Management – Road Rules) Regulations 1999 (Qld), s 300(1)

Butcher v Woods [1996] QCA 465, considered
M v R (1994) 181 CLR 487, considered
Teelow v Commissioner of Police [2009] QCA 84
Mbuzi v Torcetti [2008] QCA 231, applied

COUNSEL:

The appellant appeared on his own behalf
Mr C Lloyd for the respondent

SOLICITORS:

The appellant appeared on his own behalf
Director of the Public Prosecutors for the respondent

Introduction

This is an appeal pursuant to s 222 of the Justices Act 1886 (Qld) from the conviction of the appellant in the Magistrates Court at Brisbane on 11^th May 2010 following a summary trial of one count of using a hand held mobile phone while the vehicle which he was driving was stationary but not parked, contrary to s 300(1) of the Transport Operations (Road Use Management – Road Rules) Regulations 1999 (Qld).

Preliminary point – Application for an extension of time

The Notice of Appeal was filed on 15^th June 2010. As such, it was out of time. Counsel for the respondent properly conceded however that any delay was of no real moment as the explanation given by the appellant for that delay was satisfactory. Accordingly, it was agreed that leave should be granted subject to this court determining the merits of the appeal proper.

The applicable law

Upon hearing this appeal, it is necessary for this court to give due regard not only to the reasons for the decision of the magistrate, bearing in mind the clear advantage that he had in seeing and hearing the witnesses who gave evidence before him, but also requires this court to review the evidence, to weigh the conflicting evidence and to draw its’ own conclusions based on the original evidence and on any new evidence allowed by leave: Mbuzi v Torcetti [2008] QCA 231 para [17].

The lower court proceedings

The prosecution case was that a police officer (“the police officer”) had observed the appellant in Nudgee Road Hamilton using his mobile phone (by depressing its’ key pad) while the vehicle which the appellant was driving was stationary but not parked in a line of traffic. That officer was the only witness called in the prosecution’s case. A tape recording of an exchange which subsequently occurred in Kingsford Smith Drive Hamilton, after the appellant had parked his vehicle in that location at the direction of the police officer, was tendered as part of the prosecution case (exhibit 2). After the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andersen v Winston

Details

AGLC: Andersen v Winston [2011] QDC 14
Case: [2011] QDC 14
Decision Date: 24 February 2011

CaseChat Overview and Summary

Andersen appealed against his conviction for assault occasioning actual bodily harm, contending that the verdict was unsafe and unsatisfactory. The case was heard by the Court of Appeal. The legal issue the court had to determine was whether the jury's verdict was so unreasonable that no reasonable jury could have properly arrived at it, given the evidence presented at the trial.

The Court of Appeal found that the evidence was such that no reasonable jury could have been satisfied beyond reasonable doubt of the appellant's guilt. The court noted that the Crown's evidence relied heavily on the testimony of a single witness, who was not entirely reliable. Furthermore, there were inconsistencies in the witness's statements and a lack of corroborative evidence. The court held that the evidence did not exclude the possibility that the injury could have been caused by an accident or by another person not involved in the case. Therefore, the verdict was deemed unsafe and unsatisfactory. The appeal was allowed, the conviction was quashed, and a verdict of acquittal was entered.

Orders

Orders of the court

Appeal allowed, conviction quashed, verdict of acquittal entered

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Andersen v Winston [2011] QDC 14
PARTIES:	NEILS WILLIAM ANDERSON (appellant) v GLEN ROBERT WINSTON (respondent)
FILE NO/S:	BD 1722/10
DIVISION:	Appellate
PROCEEDING:	Appeal against conviction
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	24 February 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7 February 2011
JUDGE:	Ryrie DCJ
ORDER:	Appeal allowed, conviction quashed, verdict of acquittal entered
CATCHWORDS:	APPEAL – against conviction – whether guilty verdict was unsafe and unsatisfactory Justices Act 1886 (Qld), s 222, s223 Transport Operations (Road Use Management – Road Rules) Regulations 1999 (Qld), s 300(1) Butcher v Woods [1996] QCA 465, considered M v R (1994) 181 CLR 487, considered Teelow v Commissioner of Police [2009] QCA 84 Mbuzi v Torcetti [2008] QCA 231, applied
COUNSEL:	The appellant appeared on his own behalf Mr C Lloyd for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of the Public Prosecutors for the respondent