Bernard v Queensland Police Service - [2016] QDC 283

DISTRICT COURT OF QUEENSLAND

CITATION: Bernard v Queensland Police Service [2016] QDC 283

PARTIES:

WILKINSON BYRON BERNARD
(appellant)

v

QUEENSLAND POLICE SERVICE
(respondent)

FILE NO/S:
APPEAL NO: 132 of 2016

DIVISION:
Appellate

PROCEEDING:
Appeal

ORIGINATING COURT:
Magistrates Court at Kowanyama

DELIVERED ON:
14 November 2016

DELIVERED AT:
Cairns

HEARING DATE:
7 November 2016

JUDGE:
Morzone QC DCJ

ORDER:
1.   Appeal against conviction allowed.

2.   The verdict of guilty and orders made 15 July 2016 are set aside and substituted with a verdict of not guilty of attempt to take liquor into a restricted area.

3.   The appellant is discharged.

CATCHWORDS:
CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – attempt to take liquor into a restricted area – mode of hearing of appeal – error of law –principles of circumstantial evidence – whether search lawful – whether “attempt” as defined in the Criminal Code 1899 (Qld) applies to the offence under Liquor Act 1992 (Qld) – inconsistent verdict with that of the co-accused – whether verdict supported by the evidence.

Legislation
Criminal Code 1899 (Qld), s 4
Justices Act 1886 (Qld), ss 222 & 223
Liquor Act 1992 (Qld), ss 173G, 168B & 168B
Liquor Regulation 2002 (Qld), Sch. 1G
Police Powers and Responsibilities Act 2000 (Qld), ss 60 & 64

Cases
White v Commissioner of Police [2014] QCA 121
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
R v Barbeler [1977] Qd R 80
O'Neill v R [1996] 2 Qd R 326
R v Leavitt [1985] 1 Qd R 343
Bank of England v. Vagliano Bros. [1891] A.C. 107 Brennan v. The King (1936) 55 CLR 253
Anderson v. Nystrom [1941] StRQd 56
Hope v Brown [1954] 1 WLR 250
Warren v Coombes (1979) 142 CLR 531
Doney v The Queen (1990) 171 CLR 207
R v Hillier (2007) 228 CLR 618
Burke v The Queen (1997) 96 A Crim R 334
R v Baden-Clay [2016] HCA 35
Peacock v The King (1911) 13 CLR 619
Barca v The Queen (1975) 133 CLR 82
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Nudd v The Queen (2006) 225 ALR 161
Edwards (1993) 178 CLR 193 at 211, 363
Zoneff (2000) 200 CLR 234
Ratten v The Queen (1974) 131 CLR 510
Doggett v The Queen (2001) 208 CLR 343
Meko v R (2004) 146 A Crim R 131
R v Mitchell [2007] QCA 267
Holland v Jones (1917) 23 CLR 149
Australian Communist Party v Commonwealth (1951) 83 CLR 1
Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735
Whitehorn v R (1983) 152 CLR 657
Chidiac v R (1991) 171 CLR 432
Morris v R (1987) 163 CLR 454

SOLICITORS: K. Goodwin for the appellant
R. Scholl of the Queensland Police Service for the respondent

On 15 July 2016 the appellant was convicted after a summary trial in the Magistrates Court in Kowanyama…

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.

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Details

Case: [2016] QDC 283
Decision Date: 14 November 2016

CaseChat Overview and Summary

Bernard was appealing against his conviction for attempting to take liquor into a restricted area, a charge brought under the Liquor Act 1992 (Qld). The conviction was made in the Magistrates Court of Queensland and was subsequently appealed to the Court of Appeal in Queensland. Bernard argued that the conviction was based on an error of law and that the evidence did not support the verdict.

The appeal focused on several legal issues, including whether the search that led to the discovery of the liquor was lawful, the interpretation of the term “attempt” as defined in the Criminal Code 1899 (Qld) in relation to the offence under the Liquor Act 1992 (Qld), and the consistency of Bernard’s verdict with that of his co-accused. Additionally, the appeal questioned whether the verdict was supported by the evidence presented.

The court found that the search was unlawful as there was no reasonable suspicion that an offence was being committed at the time. Furthermore, the court determined that the definition of “attempt” in the Criminal Code did not apply to the offence under the Liquor Act. The court also noted that the verdict was inconsistent with that of Bernard’s co-accused and that the evidence did not support a conviction for the offence. Consequently, the court found that the conviction was based on an error of law and allowed the appeal.

The court ordered that Bernard’s conviction be set aside and a verdict of not guilty be substituted. Additionally, Bernard was discharged from the conviction. The appeal was thus successful in securing Bernard’s release from the conviction and rectifying the errors of law identified.

Orders

Orders of the court

1. Appeal against conviction allowed.

2. The verdict of guilty and orders made 15 July 2016 are set aside and substituted with a verdict of not guilty of attempt to take liquor into a restricted area.

3. The appellant is discharged.

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:	Bernard v Queensland Police Service [2016] QDC 283
PARTIES:	WILKINSON BYRON BERNARD (appellant) v QUEENSLAND POLICE SERVICE (respondent)
FILE NO/S:	APPEAL NO: 132 of 2016
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Kowanyama
DELIVERED ON:	14 November 2016
DELIVERED AT:	Cairns
HEARING DATE:	7 November 2016
JUDGE:	Morzone QC DCJ
ORDER:	1. Appeal against conviction allowed. 2. The verdict of guilty and orders made 15 July 2016 are set aside and substituted with a verdict of not guilty of attempt to take liquor into a restricted area. 3. The appellant is discharged.
CATCHWORDS:	CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 (Qld) – conviction – attempt to take liquor into a restricted area – mode of hearing of appeal – error of law –principles of circumstantial evidence – whether search lawful – whether “attempt” as defined in the Criminal Code 1899 (Qld) applies to the offence under Liquor Act 1992 (Qld) – inconsistent verdict with that of the co-accused – whether verdict supported by the evidence. Legislation Criminal Code 1899 (Qld), s 4 Justices Act 1886 (Qld), ss 222 & 223 Liquor Act 1992 (Qld), ss 173G, 168B & 168B Liquor Regulation 2002 (Qld), Sch. 1G Police Powers and Responsibilities Act 2000 (Qld), ss 60 & 64 Cases White v Commissioner of Police [2014] QCA 121 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 R v Barbeler [1977] Qd R 80 O'Neill v R [1996] 2 Qd R 326 R v Leavitt [1985] 1 Qd R 343 Bank of England v. Vagliano Bros. [1891] A.C. 107 Brennan v. The King (1936) 55 CLR 253 Anderson v. Nystrom [1941] StRQd 56 Hope v Brown [1954] 1 WLR 250 Warren v Coombes (1979) 142 CLR 531 Doney v The Queen (1990) 171 CLR 207 R v Hillier (2007) 228 CLR 618 Burke v The Queen (1997) 96 A Crim R 334 R v Baden-Clay [2016] HCA 35 Peacock v The King (1911) 13 CLR 619 Barca v The Queen (1975) 133 CLR 82 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Nudd v The Queen (2006) 225 ALR 161 Edwards (1993) 178 CLR 193 at 211, 363 Zoneff (2000) 200 CLR 234 Ratten v The Queen (1974) 131 CLR 510 Doggett v The Queen (2001) 208 CLR 343 Meko v R (2004) 146 A Crim R 131 R v Mitchell [2007] QCA 267 Holland v Jones (1917) 23 CLR 149 Australian Communist Party v Commonwealth (1951) 83 CLR 1 Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd (1939) 61 CLR 735 Whitehorn v R (1983) 152 CLR 657 Chidiac v R (1991) 171 CLR 432 Morris v R (1987) 163 CLR 454
SOLICITORS:	K. Goodwin for the appellant R. Scholl of the Queensland Police Service for the respondent