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Henderson v Andrews

Henderson v Andrews

Case [2011] QCA 272 7 October 2011

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SUPREME COURT OF QUEENSLAND

CITATION:

Henderson v Andrews [2011] QCA 272

PARTIES:

HENDERSON, John William
(applicant)
v
ANDREWS, Mark Gregory
(respondent)

FILE NO/S:

CA No 154 of 2011
DC No 591 of 2002,

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

7 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2011

JUDGES:

Margaret McMurdo P, White JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time in which to apply for leave to appeal against conviction and sentence be dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the applicant was charged on complaint with one count of possession of tainted property – where the complaint was dismissed by the magistrate – where the applicant was convicted by a District Court Judge on appeal – where the applicant sought an extension of time within which to appeal against his conviction and sentence – where the applicant had previously appealed to the Court of Appeal against his conviction – where the prior appeal had been dismissed on its merits – whether the Court has jurisdiction to hear a further appeal against those same convictions – whether it is in the interests of justice to grant an extension of time

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months imprisonment for one count of possession of tainted property – where the applicant had outstanding charges in Victoria that had yet to be dealt with – whether the sentence was manifestly excessive

Crimes (Confiscation) Act 1989 (Qld), s 92(1)
Criminal Code Act 1889 (Qld), s 668D
Criminal Proceeds Confiscation Act 2002 (Qld)
District Court of Queensland Act 1967 (Qld), s 118(3)
Justices Act 1886 (Qld), s 222
Police Powers and Responsibilities Act 2000 (Qld)

Andrews v Henderson[2004] QCA 145, cited
Andrews v Henderson [2003] QDC 481, cited
Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, applied
Henderson v Commissioner for Taxation [2005] AATA 606, cited
R v AP [2003] QCA 445, considered
R v Ali[2008] QCA 39, cited
R v Byrne[2010] QCA 33, cited
R v Gadaloff[1998] QCA 458, considered
R v Henderson and Warwick (2009) 22 VR 662; [2009] VSCA 136, cited
R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259, cited
R v Kenny [2000] QCA 69, cited
R v MAM[2005] QCA 323, cited
R v Nudd[2007] QCA 40, cited
R v Riley[2010] QCA 91, considered
R v Smith [1968] QWN 50, cited
R v Smith (No 2) [1969] QWN 10,…

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 Henderson v Andrews

Details

AGLC: Henderson v Andrews [2011] QCA 272
Case: [2011] QCA 272
Decision Date: 7 October 2011

CaseChat Overview and Summary

In the matter of Henderson v Andrews, the applicant, Henderson, sought an extension of time to appeal against his conviction and sentence for possession of tainted property. The case was originally heard in the Magistrates Court where the complaint was dismissed, but on appeal to the District Court, Henderson was convicted. He had previously appealed to the Court of Appeal against the conviction, which was dismissed on its merits. Now, Henderson sought an extension of time to appeal against both the conviction and the sentence. The central legal issues were whether the Court had jurisdiction to hear a further appeal against the same convictions and whether it was in the interests of justice to grant an extension of time.

The court examined the jurisdictional limits of an appeal and the principles surrounding extensions of time in the context of criminal appeals. It was established that an appeal lies from the District Court to the Court of Appeal in matters of law and fact. The court considered that a second appeal against the same convictions would not be in the interests of justice, given that the prior appeal had already been determined on its merits. The court also noted that Henderson's request for an extension of time was made despite his previous opportunity to appeal having been exhausted. The court emphasised that such extensions are not granted lightly, particularly where the applicant has had a previous opportunity to appeal and that opportunity was not utilised within the prescribed time. Furthermore, the court held that the sentence of 18 months imprisonment, while severe, was not manifestly excessive given the circumstances.

In conclusion, the court found that the appeal was not within its jurisdiction as it sought to relitigate the same issues that were already decided in a prior appeal. Additionally, the court held that it was not in the interests of justice to grant an extension of time. The application for an extension of time to appeal against conviction and sentence was dismissed.

Orders

Orders of the court

The application for an extension of time in which to apply for leave to appeal against conviction and sentence be dismissed

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.

Citations

AGLC Citation

Henderson v Andrews [2011] QCA 272

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

R v Woodman
[2010] QCA 162 Para 1

…That approach was endorsed in R v Woodman [2010] QCA 162, where an extension of time to appeal against sentence was sought in circumstances where the court had previously dismissed an application for leave to appeal against sentence. In refusing leave, White JA stated at [19]-[20]:…
R v Riley
[2010] QCA 91 Para 1

…In R v Riley [2010] QCA 91, the court considered a second application for an extension of time within which to appeal against conviction and sentence after an earlier application had been considered, including the merits of the grounds of appeal, and dismissed. The second application raised grounds which were ch…
R v Byrne
[2010] QCA 33 Para 1

…o the comparatives of R v Gadaloff [1998] QCA 458 and R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 which was mentioned in R v Byrne [2010] QCA 33. The more pertinent of the two is Gadaloff. It concerned the wife of a man who defrauded the Brisbane City Council and was sentenced to two years impri…
R v Henderson & Warwick
[2009] VSCA 136

…CA 39, cited R v Byrne [2010] QCA 33, cited R v Gadaloff [1998] QCA 458, considered R v Henderson and Warwick (2009) 22 VR 662; [2009] VSCA 136, cited R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259, cited R v Kenny [2000] QCA 69, cited R v MAM [2005] QCA 323, cited R v Nudd [2007] QCA 40, cited R v Ri…
R v Ali
[2008] QCA 39 Para 1

…n applicant would seek by the proposed appeal to establish a miscarriage of justice by relying upon what is said to be fresh or new evidence: R v Ali [2008] QCA 39. The well established line of authority to that effect emanates from Grierson v The King (1938) 60 CLR 431 . In Grierson, the High Court noted at 435…
R v Huang; R v Siu
[2007] NSWCCA 259 Para 1

…festly excessive, particularly when regard is had to the comparatives of R v Gadaloff [1998] QCA 458 and R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 which was mentioned in R v Byrne [2010] QCA 33. The more pertinent of the two is Gadaloff. It concerned the wife of a man who defrauded the Brisbane Ci…
R v Nudd
[2007] QCA 40 Para 1

…once the court has decided an appeal to it on its merits and the court has no jurisdiction to hear a further appeal: R v MAM [2005] QCA 323, R v Nudd [2007] QCA 40. Moreover, that position applies notwithstanding that an applicant would seek by the proposed appeal to establish a miscarriage of justice by relying…
R v Mam
[2005] QCA 323 Para 1

…1899 (Qld) is exhausted once the court has decided an appeal to it on its merits and the court has no jurisdiction to hear a further appeal: R v MAM [2005] QCA 323, R v Nudd [2007] QCA 40. Moreover, that position applies notwithstanding that an applicant would seek by the proposed appeal to establish a miscarria…
Henderson and Commissioner of Taxation
[2005] AATA 606 Para 1

…l concerning disputed assessments of income tax which resulted from information obtained from Queensland Police: Henderson v Commissioner of Taxation [2005] AATA 606. In that case, it was determined that the amount of $592,000 in cash taken by the police was not assessable income as a result of evidence given and…
Andrews v Henderson
[2004] QCA 145 Para 1

…ursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), which was dismissed by the Court of Appeal on 7 May 2004: Andrews v Henderson [2004] QCA 145.…
R v Welch
[2004] QCA 108

…nd 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 together with the applicant Henderson and another person. When the applicant saw the police t…
R v AP
[2003] QCA 445 Para 1

…In R v AP [2003] QCA 445, the applicant brought a second application to extend time to appeal against conviction on different grounds from the first application which had been dismissed on the merits. This Court had regard to argument that it had no jurisdiction to hear the second application for an extension of…
Re Sinanovic's Application
[2001] HCA 40

…[1969] QWN 10, cited R v Woodman [2010] QCA 162 , considered Re Sinanovic’s Application (2001) 180 ALR 448; [2001] HCA 40, cited COUNSEL: The appellant appeared on his own behalf T A Fuller SC for the respondent SOLICITORS: The appellant appeared on his own behalf Director of Public Prosecutions (Queensland) for…
R v Kenny
[2000] QCA 69 Para 1

…nd application for an extension of time. The President referred to Grierson and R v Smith [1968] QWN 50, R v Smith (No 2) [1969] QWN 10 and R v Kenny [2000] QCA 69 as suggesting that the court had no jurisdiction to determine a second application, but also noted Re Sinanovic’s Application (2001) 180 ALR 448, as…
R v Gadaloff
[1998] QCA 458 Para 1

…ved, a sentence of 18 months imprisonment was clearly not manifestly excessive, particularly when regard is had to the comparatives of R v Gadaloff [1998] QCA 458 and R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 which was mentioned in R v Byrne [2010] QCA 33. The more pertinent of the two is Gadal…
Grierson v The King
[1938] HCA 45

…derson [2004] QCA 145, cited Andrews v Henderson [2003] QDC 481, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, applied Henderson v Commissioner for Taxation [2005] AATA 606, cited R v AP [2003] QCA 445, considered R v Ali [2008] QCA 39, cited R v Byrne [2010] QCA 33, cited R v Gadaloff [1998] QCA 4…
[2003] QDC 481
[2003] QDC 481 Para 1

…y of the judgment of Judge White of 30 October 2003 finding the applicant guilty of the charge of possession of tainted property: Andrews v Henderson [2003] QDC 481, a copy of the transcript of the sentence hearing of 15 July 2004 and a copy of the affidavit of Mr Dredge sworn 15 March 2004 filed in BS 1246/03, a…

Legislation cited in this decision · 6

Crimes (Confiscation) Act 1989 (Qld)
92(1) 2 mentions
District Court of Queensland Act 1967 (Qld)
118(3) 2 mentions (from Para 1)
Justices Act 1886 (Qld)
222 2 mentions (from Para 1)
Criminal Code Act 1889 (Qld)
668D 1 mention
Criminal Proceeds Confiscation Act 2002 (Qld)
1 mention (from Para 1)
Police Powers and Responsibilities Act 2000 (Qld)
1 mention

CITATION:	Henderson v Andrews [2011] QCA 272
PARTIES:	HENDERSON, John William (applicant) v ANDREWS, Mark Gregory (respondent)
FILE NO/S:	CA No 154 of 2011 DC No 591 of 2002,
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	7 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	22 August 2011
JUDGES:	Margaret McMurdo P, White JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time in which to apply for leave to appeal against conviction and sentence be dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – GENERALLY – where the applicant was charged on complaint with one count of possession of tainted property – where the complaint was dismissed by the magistrate – where the applicant was convicted by a District Court Judge on appeal – where the applicant sought an extension of time within which to appeal against his conviction and sentence – where the applicant had previously appealed to the Court of Appeal against his conviction – where the prior appeal had been dismissed on its merits – whether the Court has jurisdiction to hear a further appeal against those same convictions – whether it is in the interests of justice to grant an extension of time CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to 18 months imprisonment for one count of possession of tainted property – where the applicant had outstanding charges in Victoria that had yet to be dealt with – whether the sentence was manifestly excessive Crimes (Confiscation) Act 1989 (Qld), s 92(1) Criminal Code Act 1889 (Qld), s 668D Criminal Proceeds Confiscation Act 2002 (Qld) District Court of Queensland Act 1967 (Qld), s 118(3) Justices Act 1886 (Qld), s 222 Police Powers and Responsibilities Act 2000 (Qld) Andrews v Henderson[2004] QCA 145, cited Andrews v Henderson [2003] QDC 481, cited Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, applied Henderson v Commissioner for Taxation [2005] AATA 606, cited R v AP [2003] QCA 445, considered R v Ali[2008] QCA 39, cited R v Byrne[2010] QCA 33, cited R v Gadaloff[1998] QCA 458, considered R v Henderson and Warwick (2009) 22 VR 662; [2009] VSCA 136, cited R v Huang and Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259, cited R v Kenny [2000] QCA 69, cited R v MAM[2005] QCA 323, cited R v Nudd[2007] QCA 40, cited R v Riley[2010] QCA 91, considered R v Smith [1968] QWN 50, cited R v Smith (No 2) [1969] QWN 10,…