Hendle v Commissioner of Police - [2020] QCA 26

[2020] QCA 26

COURT OF APPEAL

FRASER JA
McMURDO JA
MULLINS JA

CA No 85 of 2019
DC No 7 of 2018

HENDLE, William George Applicant

COMMISSIONER OF POLICE Respondent

BRISBANE

FRIDAY, 21 FEBRUARY 2020

JUDGMENT

FRASER JA: After a two day trial in the Magistrates Court the applicant was convicted of dangerous operation of a motor vehicle and of wilful damage. His appeal to the District Court against his conviction for wilful damage was dismissed. The applicant now applies for leave to appeal against that decision.

In relation to the wilful damage offence the prosecution case in the Magistrates Court was that the applicant wilfully damaged an old wooden storage shed on a neighbour’s property by driving his car into collision with it soon after the applicant had a disagreement with a different neighbour. Three witnesses gave evidence that they saw the applicant damage the shed by driving his car into it. Another witness gave evidence that he heard crashes, observed damage to the shed, and saw the applicant driving away.

The overall effect of the evidence given by those four witnesses is that the shed, which was owned by and was wholly within the property of the neighbour, was badly damaged by the applicant deliberately driving his car into it and, after reversing a short distance, again deliberately driving his car into it at a different point. The damage included the shed becoming crooked and parts falling off it.

A police officer recorded a conversation at the scene in which the applicant stated that he drove his car into the shed because he believed it was on his property. The officer gave evidence that there were two points of impact on the shed, there were tyre markings on the grass at two separate locations near separate points where the shed appeared to have been impacted, the shed had shifted from its original resting place, and it had sustained considerable impact damage. Date and time stamped images of the scene recorded by the officer’s bodycam and on his mobile phone were consistent with his evidence. The officer denied the applicant’s suggestion in cross examination that the tyre marks were consistent with tractor marks.

The applicant gave evidence to the following effect. He “bumped” his car once into a corner of the shed. He did not “drive” into the shed. He did not “bump” it twice. He agreed that it was the neighbour’s shed but said that at the time of the collision the corner of the shed was two or three feet within his property. He denied that he damaged it. He stopped when the bull bar of his car started pushing back towards his car. There was no damage to his car or the bull bar. The applicant accepted that the images of the shed from the officer’s bodycam and his mobile phone showed that the shed was on the neighbour’s land and that it was damaged in the ways described by the police officer and other…

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 Hendle v Commissioner of Police

Details

AGLC: Hendle v Commissioner of Police [2020] QCA 26
Case: [2020] QCA 26
Decision Date: 21 FEBRUARY 2020

CaseChat Overview and Summary

The Court of Appeal was asked to consider an application for leave to appeal against the dismissal of an appeal against a conviction for wilful damage. The applicant, William George Hendle, was found guilty by a magistrate of damaging a neighbour's shed by deliberately driving his car into it twice. The applicant's appeal against the conviction was dismissed by a District Court judge. The applicant now sought leave to appeal against that decision. The court was required to determine whether there was any arguable error in the judge's decision to dismiss the appeal, and whether there was any substantial injustice or other ground justifying the grant of leave to appeal.

The court found that the applicant's arguments were not supported by evidence and did not provide a basis for appellate interference. The court held that the judge's findings and inferences about the facts were not unreasonable and there was no basis in the evidence for thinking that the applicant had suffered a substantial injustice or any other ground justifying the grant of leave to appeal. The court noted that the applicant's evidence was rejected as lacking credibility and that the only evidentiary support for the applicant's assertions was his own testimony.

The application for leave to appeal was refused.

Orders