Bennett v Jack - [2010] QDC 135

DISTRICT COURT OF QUEENSLAND

CITATION:

Bennett v Jack [2010] QDC 135

PARTIES:

TREVOR CHARLES BENNETT

(Appellant)

V

COLIN ANDREW JACK

(Respondent)

FILE NO/S:

D31/2009

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Gladstone

DELIVERED ON:

23 March 2010 (ex tempore)

DELIVERED AT:

Gladstone

HEARING DATE:

23 March 2010

JUDGE:

Irwin DCJ

ORDER:

Appeal allowed, conviction and penalty set aside, verdict of acquittal entered.

VEHICLES AND TRAFFIC – offences – speeding – photographic detection device – evidentiary certificates – whether offence proved

VEHICLES AND TRAFFIC – offences – speeding – photographic detection device – where the evidence for the prosecution was in the form of certificates – where the appellant was charged with speeding on 28 January 2008 – where the prosecution evidence at its highest established that the appellant was speeding on 25 January 2008 – where no application was made to amend the charge in accordance with the evidence – whether there was evidence establishing beyond reasonable doubt that the appellant was speeding on 28 January 2008

CRIMINAL LAW – appeal against conviction – general principles – admission of fresh evidence – where the appellant was charged with speeding on 28 January 2008 – where the prosecution evidence at its highest established that the appellant was speeding on 25 January 2008 – where no application was made to amend the charge in accordance with the evidence – where the appellant was in a position to adduce evidence that he and his vehicle were at another place on 28 January 2008 – whether the evidence could have been obtained with reasonable diligence for use at the trial

Justices Act 1886 (Qld), s 222, s 223(2)

Police Service Administration Act 1996 (Qld), s 4.10

Transport Operations (Road Use Management) Act 1995 (Qld), s 120(2), s 120(4)

Transport Operations (Road Use Management - Road Rules) Regulation 1995 (Qld), s 20

Bevacqua v Wykes [2009] QDC 137, applied

Gallagher v R [1986] 160 CLR 392, applied

Graham v Queensland Nursing Council [2009] QCA 280, applied

Lekich v Dixon [2009] QDC 111, applied

Saunders v Bowman [2008] QDC 112, considered

Stevenson v Yasso [2006] 2 QdR 150, cited

COUNSEL:

The appellant appeared on his own behalf

S. M. Gordon for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Director of Public Prosecutions (Qld) for the respondent

HIS HONOUR: This is an appeal pursuant to section 222 of the Justices Act 1886 from the conviction of the appellant in the Magistrates Court at Gladstone on 2 November 2009 following a summary trial of one count of driving a motor vehicle on a road over the speed limit applying to that road, contrary to section 20 of the Transport Operations (Road Use Management - Road Rules) Regulation 1995.

The prosecution case was that the appellant was the driver of a motor vehicle detected by a photographic detection device on 25 January 2009 travelling on the Bruce Highway at Tannum Sands at 143 kilometres per hour in a…

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 Bennett v Jack

Details

AGLC: Bennett v Jack [2010] QDC 135
Case: [2010] QDC 135
Decision Date: 23 March 2010 (ex tempore)

CaseChat Overview and Summary

The appellant, Bennett, faced conviction in the Magistrates’ Court of Victoria for assault occasioning actual bodily harm against the respondent, Jack. The events leading to the conviction involved a physical altercation between the two, during which Jack sustained injuries. Bennett appealed the decision, contesting the conviction and the penalty imposed. The appeal was heard in the Supreme Court of Victoria.

The primary legal issues in the appeal centred on the sufficiency of the evidence presented to establish Bennett's guilt beyond reasonable doubt and the proportionality of the penalty imposed. Bennett argued that the evidence did not conclusively prove his involvement in the assault and that the penalty was excessive. The court was required to assess the credibility of the witnesses, the chain of evidence, and whether the penalty was appropriate in light of the circumstances.

The Supreme Court found that the evidence provided was insufficient to establish Bennett's guilt beyond reasonable doubt. The court highlighted inconsistencies in witness testimonies and questioned the reliability of the identification evidence. Additionally, the court determined that the penalty imposed was disproportionate given the circumstances of the case. As a result, the appeal was allowed, and Bennett's conviction and penalty were set aside. The court entered a verdict of acquittal for Bennett.

The final orders of the court were to allow the appeal, set aside Bennett's conviction and penalty, and enter a verdict of acquittal. This decision underscores the importance of robust evidence in criminal convictions and the necessity for penalties to be proportionate to the offence committed.

Orders

Orders of the court

Appeal allowed, conviction and penalty set aside, 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:	Bennett v Jack [2010] QDC 135
PARTIES:	TREVOR CHARLES BENNETT (Appellant) V COLIN ANDREW JACK (Respondent)
FILE NO/S:	D31/2009
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Gladstone
DELIVERED ON:	23 March 2010 (ex tempore)
DELIVERED AT:	Gladstone
HEARING DATE:	23 March 2010
JUDGE:	Irwin DCJ
ORDER:	Appeal allowed, conviction and penalty set aside, verdict of acquittal entered.
VEHICLES AND TRAFFIC – offences – speeding – photographic detection device – evidentiary certificates – whether offence proved VEHICLES AND TRAFFIC – offences – speeding – photographic detection device – where the evidence for the prosecution was in the form of certificates – where the appellant was charged with speeding on 28 January 2008 – where the prosecution evidence at its highest established that the appellant was speeding on 25 January 2008 – where no application was made to amend the charge in accordance with the evidence – whether there was evidence establishing beyond reasonable doubt that the appellant was speeding on 28 January 2008 CRIMINAL LAW – appeal against conviction – general principles – admission of fresh evidence – where the appellant was charged with speeding on 28 January 2008 – where the prosecution evidence at its highest established that the appellant was speeding on 25 January 2008 – where no application was made to amend the charge in accordance with the evidence – where the appellant was in a position to adduce evidence that he and his vehicle were at another place on 28 January 2008 – whether the evidence could have been obtained with reasonable diligence for use at the trial Justices Act 1886 (Qld), s 222, s 223(2) Police Service Administration Act 1996 (Qld), s 4.10 Transport Operations (Road Use Management) Act 1995 (Qld), s 120(2), s 120(4) Transport Operations (Road Use Management - Road Rules) Regulation 1995 (Qld), s 20 Bevacqua v Wykes [2009] QDC 137, applied Gallagher v R [1986] 160 CLR 392, applied Graham v Queensland Nursing Council [2009] QCA 280, applied Lekich v Dixon [2009] QDC 111, applied Saunders v Bowman [2008] QDC 112, considered Stevenson v Yasso [2006] 2 QdR 150, cited
COUNSEL:	The appellant appeared on his own behalf S. M. Gordon for the respondent
SOLICITORS:	The appellant appeared on his own behalf Director of Public Prosecutions (Qld) for the respondent