Andrews v Henderson - [2004] QCA 145

SUPREME COURT OF QUEENSLAND

CITATION:

Andrews v Henderson [2004] QCA 145

PARTIES:

MARK GREGORY ANDREWS
(appellant/respondent)
v
JOHN WILLIAM HENDERSON

(respondent/applicant)

FILE NO/S:

CA No 378 of 2003

DC No 591 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

7 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

21 April 2004

JUDGES:

McMurdo P, McPherson JA and Williams JA

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal against the order of the District Court made on 30 October 2003 convicting the applicant of the third offence charged in the complaint dated 7 May 2002 dismissed

CATCHWORDS:

APPEALS TO DISTRICT COURT – where magistrate dismissed summary charge against applicant of possession of tainted property after making interlocutory ruling that key evidence obtained from searches inadmissible – whether subsequent appeal to District Court challenging evidentiary ruling was from a final order or not

CRIMINAL LAW – EVIDENCE – PROOF – where after evidence from searches ruled inadmissible prosecutor did not call evidence of another police officer who had questioned applicant – whether prosecutor on whom onus of proof rested was entitled to choose which parts of available evidence to call in order to prove case

Justices Act 1886 (Qld), s 222

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, applied
Hesselman v Reid [1973] Tas SR 93, considered
Hesselman v Reid (No 2) [1974] Tas SR 1, cited
Paulger v Hall [2003] 2 Qd R 294, considered, applied
R v His Honour Judge Dodds, ex parte Smith and Graham [1990] 2 Qd R 80, cited
Reid v Hesselman [1975] Tas SR 95, cited
Schneider v Curtis [1967] Qd R 300, cited

COUNSEL:

A Boe (sol) for the applicant

B G Campbell for the respondent

SOLICITORS:

Boe Solicitors for the applicant
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: I agree with McPherson JA that the application for leave to appeal should be dismissed for the reasons he gives.

McPHERSON JA: At about 1.10 pm on 20 April 2002, Det Snr Const M G Andrews, who is the respondent to this application and the complainant in the magistrates court, went with other police officers to unit 241 at the Reef Palm Hotel at Cairns. They were making inquiries about a robbery which had recently taken place and had an “interest” in a Mr Prem Welch, who was staying in unit 241. They knocked on the door and were admitted by the female occupant. On entering the unit they saw cannabis and equipment for using or smoking it. In the ensuing search, they also located 39.1g of pure cocaine and some $3,100 in cash. Welch was later charged and convicted of possession of that drug on an indictment to which he pleaded guilty: R v Welch [2004] QCA 108.

While the search was taking place, Welch arrived at the unit…

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 Andrews v Henderson

Details

AGLC: Andrews v Henderson [2004] QCA 145
Case: [2004] QCA 145
Decision Date: 7 May 2004

CaseChat Overview and Summary

In Andrews v Henderson, the applicant appealed against a decision of the District Court, which had upheld a conviction by a magistrate for possession of tainted property. The magistrate had dismissed a summary charge against the applicant, finding that key evidence obtained from searches conducted by police was inadmissible. The applicant then appealed to the District Court, challenging the magistrate's evidentiary ruling. The appeal to the District Court was based on whether the interlocutory ruling on the admissibility of the evidence constituted a final order from which an appeal could be made.

The central legal issue was whether the District Court had jurisdiction to hear the appeal. Specifically, it was necessary to determine whether the magistrate's interlocutory ruling on the inadmissibility of evidence was a final order. Additionally, the court had to consider whether the prosecution was entitled to selectively call evidence to prove its case when other available evidence had been ruled inadmissible.

The court concluded that the interlocutory ruling on the admissibility of the evidence was not a final order because it did not resolve the substantive charge against the applicant. The ruling merely excluded certain evidence from being considered in the case. Consequently, the District Court lacked jurisdiction to hear the appeal based on the evidentiary ruling. Furthermore, the court held that the prosecution had the obligation to prove its case using all available evidence, and could not choose selectively which parts of the evidence to present. Since the prosecution did not call other available evidence after the key evidence was ruled inadmissible, it failed to meet its burden of proof.

The application for leave to appeal against the District Court's order was dismissed. The court did not grant leave to appeal, thereby affirming the District Court's decision and upholding the conviction.

Orders

Orders of the court

Application for leave to appeal against the order of the District Court made on 30 October 2003 convicting the applicant of the third offence charged in the complaint dated 7 May 2002 dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Andrews v Henderson [2004] QCA 145
PARTIES:	MARK GREGORY ANDREWS (appellant/respondent) v JOHN WILLIAM HENDERSON (respondent/applicant)
FILE NO/S:	CA No 378 of 2003 DC No 591 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	7 May 2004
DELIVERED AT:	Brisbane
HEARING DATE:	21 April 2004
JUDGES:	McMurdo P, McPherson JA and Williams JA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal against the order of the District Court made on 30 October 2003 convicting the applicant of the third offence charged in the complaint dated 7 May 2002 dismissed
CATCHWORDS:	APPEALS TO DISTRICT COURT – where magistrate dismissed summary charge against applicant of possession of tainted property after making interlocutory ruling that key evidence obtained from searches inadmissible – whether subsequent appeal to District Court challenging evidentiary ruling was from a final order or not CRIMINAL LAW – EVIDENCE – PROOF – where after evidence from searches ruled inadmissible prosecutor did not call evidence of another police officer who had questioned applicant – whether prosecutor on whom onus of proof rested was entitled to choose which parts of available evidence to call in order to prove case Justices Act 1886 (Qld), s 222 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, applied Hesselman v Reid [1973] Tas SR 93, considered Hesselman v Reid (No 2) [1974] Tas SR 1, cited Paulger v Hall [2003] 2 Qd R 294, considered, applied R v His Honour Judge Dodds, ex parte Smith and Graham [1990] 2 Qd R 80, cited Reid v Hesselman [1975] Tas SR 95, cited Schneider v Curtis [1967] Qd R 300, cited
COUNSEL:	A Boe (sol) for the applicant B G Campbell for the respondent
SOLICITORS:	Boe Solicitors for the applicant Director of Public Prosecutions (Queensland) for the respondent