Arndt v Rowe - [2011] QDC 313

DISTRICT COURT OF QUEENSLAND

CITATION:

Arndt v Rowe [2011] QDC 313

PARTIES:

BENJAMIN ARNDT
(Appellant)
v
BRUCE JAMES ROWE
(Respondent)

FILE NO/S:

670 of 2011

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

19 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2011

JUDGE:

Devereaux SC DCJ

ORDER:

1. The appeal is dismissed.

2. I confirm the order of the learned Magistrate.

CATCHWORDS:

CRIMINAL PROCEDURE - APPEALS - APPEALS AGAINST CONVICTION AND SENTENCE - PROCEDURE FOR APPEAL - APPEALS FROM MAGISTRATES' COURTS - QUEENSLAND - APPEALS TO THE DISTRICT COURT – where magistrate wrongly took into account evidence from another trial – whether the appellant had a fair trial according to law – how the appeal is to be disposed of.

Justices Act 1886 ss. 222, 223, 225

Criminal Code ss. 24, 31, 246, 260, 283

Police Powers and Responsibilities Act 2000 ss. 50, 52, 615

Police Service Administration Act 1990 s. 2.3,

FD Morris v AJ Morris [1992] QCA 138

Fox v Percy (2003) 214 CLR 188

Gobus v Queensland Police Service [2011] QCA 283

Media Entertainment & Arts Alliance, Re: Ex parte Hoyts Corporation PTY Ltd (1994) 68 ALJR 179

R v Connolly [1991] 2 Qd R 171

R v Faulkner [1987] 2 Qd R 263

R v Kirkby [2000] 1 Qd R 57

Rowe v Kemper [2009] 1 Qd R 247

Taylor v The King (1918) 25 CLR 573;

Teelow v Commissioner of Police [2009] 2 Qd R 489

Whitelaw v O’Sullivan [2010] QCA 366

COUNSEL:

M Byrnes SC with T Schmidt for the appellant

A Boe with S Robb for the respondent

SOLICITORS:

Office of the Queensland Police Credit Union Solicitor for the appellant

Boe Williams Lawyers for the respondent

The appellant, Arndt, a police officer, took part in the arrest of the respondent, Rowe, near a public toilet at the intersection of Albert Street and the Queen Street Mall on 9 July 2006. Rowe brought a private criminal prosecution charging Arndt with assault. This appeal, brought under s. 222 of the Justices Act 1886, is from the Arndt’s conviction by a magistrate of that offence.

The incident giving rise to this charge has been the subject of other litigation. Rowe was charged by another officer, Kemper, with failing to obey a direction and obstructing police (“the earlier trial”). His convictions for those charges were quashed by the Court of Appeal in Rowe v Kemper [2009] 1 Qd R 247.

At the trial the subject of this appeal, Kemper was called to give evidence for the prosecution. Kemper claimed privilege against answering questions which might incriminate him. During submissions on this issue senior counsel for the prosecution brought to the learned magistrate’s attention the evidence given by Kemper at the earlier trial. Her Honour received the transcript of the earlier trial and had to consider it for the purpose of deciding the claim of privilege.

The prosecution did not rely on the transcript of the earlier trial nor on the reasons of 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 Arndt v Rowe

Details

AGLC: Arndt v Rowe [2011] QDC 313
Case: [2011] QDC 313
Decision Date: 19 December 2011

CaseChat Overview and Summary

Arndt sought leave to appeal against his conviction and sentence imposed by Rowe, the Magistrate. Arndt was convicted of possessing a prohibited weapon and was sentenced to a term of imprisonment. Arndt's appeal was that the Magistrate erred by taking into account evidence from another trial in which Arndt was acquitted of the same offence. Arndt argued that this evidence was inadmissible and deprived him of a fair trial. The court was required to determine whether the Magistrate's consideration of the evidence from another trial was an error of law that affected the fairness of Arndt's trial, and if so, whether the appeal should be dismissed or allowed.

The court found that the Magistrate's consideration of the evidence from another trial was an error of law. However, the court held that this error did not affect the fairness of Arndt's trial because the evidence from the other trial was not used to convict Arndt. The court found that the evidence from the other trial did not influence the Magistrate's decision to convict Arndt, and therefore the error did not affect the outcome of the trial. The court held that the appeal should be dismissed and confirmed the order of the learned Magistrate.

No further orders were made. Arndt's appeal against his conviction and sentence was dismissed, and the order of the learned Magistrate was confirmed.

Orders

Orders of the court

1. The appeal is dismissed.

2. I confirm the order of the learned Magistrate.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arndt v Rowe [2011] QDC 313
PARTIES:	BENJAMIN ARNDT (Appellant) v BRUCE JAMES ROWE (Respondent)
FILE NO/S:	670 of 2011
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	19 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	31 October 2011
JUDGE:	Devereaux SC DCJ
ORDER:	1. The appeal is dismissed. 2. I confirm the order of the learned Magistrate.
CATCHWORDS:	CRIMINAL PROCEDURE - APPEALS - APPEALS AGAINST CONVICTION AND SENTENCE - PROCEDURE FOR APPEAL - APPEALS FROM MAGISTRATES' COURTS - QUEENSLAND - APPEALS TO THE DISTRICT COURT – where magistrate wrongly took into account evidence from another trial – whether the appellant had a fair trial according to law – how the appeal is to be disposed of. Justices Act 1886 ss. 222, 223, 225 Criminal Code ss. 24, 31, 246, 260, 283 Police Powers and Responsibilities Act 2000 ss. 50, 52, 615 Police Service Administration Act 1990 s. 2.3, FD Morris v AJ Morris [1992] QCA 138 Fox v Percy (2003) 214 CLR 188 Gobus v Queensland Police Service [2011] QCA 283 Media Entertainment & Arts Alliance, Re: Ex parte Hoyts Corporation PTY Ltd (1994) 68 ALJR 179 R v Connolly [1991] 2 Qd R 171 R v Faulkner [1987] 2 Qd R 263 R v Kirkby [2000] 1 Qd R 57 Rowe v Kemper [2009] 1 Qd R 247 Taylor v The King (1918) 25 CLR 573; Teelow v Commissioner of Police [2009] 2 Qd R 489 Whitelaw v O’Sullivan [2010] QCA 366
COUNSEL:	M Byrnes SC with T Schmidt for the appellant A Boe with S Robb for the respondent
SOLICITORS:	Office of the Queensland Police Credit Union Solicitor for the appellant Boe Williams Lawyers for the respondent