Hendrey v Bowdern - [2017] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:

Hendrey v Bowdern [2017] QDC 240

PARTIES:

COLIN SCOTT HENDREY

(appellant)

v

CONSTABLE DION BOWDERN

(respondent)

FILE NO/S:

D95/15

DIVISION:

Criminal

PROCEEDING:

Appeal pursuant to s 222 Justices Act

ORIGINATING COURT:

Ipswich Magistrates Court

DELIVERED ON:

6 October 2017

DELIVERED AT:

Ipswich

HEARING DATE:

3 March 2016

JUDGE:

Horneman-Wren SC DCJ

ORDER:

1.     Appeal allowed.

2.     Set aside the conviction and sentenced imposed on 3 November 2015.

3.     Enter a verdict of not guilty.

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION –where appellant convicted after a summary trial of one charge of trespass – where appellant contends that the conviction was unsafe and unsatisfactory – where appellant contends that the sentence imposed was excessive – where the magistrate failed to adequately consider identification evidence – where the prosecution did not establish the identification of the appellant as the offender beyond reasonable doubt – where appeal allowed – where a not guilty verdict entered

CRIMINAL LAW – APPEAL AGAINST SENTENCE – where appellant sentenced to four months imprisonment which was to be served cumulatively upon two suspended sentences – where parole eligibility date set – where appellant contends that the sentence imposed was excessive – where magistrate erred in not setting a parole release date – where conviction set aside as not guilty verdict recorded

COUNSEL:

Mr J Thomas (solicitor) for the appellant

Ms E Kelso for the respondent

SOLICITORS:

McMillan Kelly Thomas Lawyers for the appellant

Office of the Director of Public Prosecutions for the respondent

Introduction

On 3 November 2015 the appellant, Colin Scott Hendrey , was convicted after a summary trial of one charge of trespass in that he unlawfully entered the yard of a dwelling at 5 Sprengler Street, East Ipswich. He was sentenced to four months imprisonment which was to be served cumulatively upon two suspended sentences which the learned magistrate activated in full. Those sentences were a one month sentence imposed on 18 September 2014, wholly suspended for an operational period of 18 months, and a four month sentence imposed on 31 October 2014 which had been suspended after one month also for an operational period of 18 months. The activated suspended sentences were ordered to be served concurrently with each other. The appellant was thus sentenced to a total period of seven months imprisonment. A parole eligibility date was fixed at 4 January 2016, that is, after two months in custody. He was granted appeal bail the day following his conviction and has thus spent one night in custody.

The appellant appeals to this court against both his conviction and the sentence. He contends that the conviction was unsafe and unsatisfactory and the sentence excessive.

For the reasons which follow, the appeal should be allowed, the conviction set aside, and a verdict of not guilty entered.

The case against the appellant

Four witnesses were called in the prosecution case. Two gave evidence concerning the identification of the appellant as the offender. The third was the investigating police officer whose…

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 Hendrey v Bowdern

Details

AGLC: Hendrey v Bowdern [2017] QDC 240
Case: [2017] QDC 240
Decision Date: 6 October 2017

CaseChat Overview and Summary

The appellant, Hendrey, was convicted following a summary trial on a charge of trespass and subsequently appealed both the conviction and the sentence. He contended that the conviction was unsafe and unsatisfactory and that the sentence was excessive. The basis of his appeal was that the magistrate did not adequately consider the identification evidence, and the prosecution failed to prove beyond reasonable doubt that Hendrey was the offender. The appeal was heard and determined by the court.

The court considered the legal issues regarding the adequacy of the identification evidence and whether the prosecution had met the burden of proof beyond reasonable doubt. It was held that the magistrate had not properly assessed the identification evidence, which was crucial to the conviction. The court concluded that, given the shortcomings in the identification evidence, the prosecution did not establish Hendrey's guilt beyond reasonable doubt, making the conviction unsafe and unsatisfactory.

Consequently, the appeal was allowed. The court set aside the conviction and the sentence imposed on 3 November 2015, and recorded a verdict of not guilty. The court found that the magistrate had erred in not setting a parole release date and that the sentence was excessive given the circumstances. This decision highlights the importance of proper assessment of identification evidence and the burden of proof in criminal convictions.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the conviction and sentenced imposed on 3 November 2015.

3. Enter a verdict of not guilty.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hendrey v Bowdern [2017] QDC 240
PARTIES:	COLIN SCOTT HENDREY (appellant) v CONSTABLE DION BOWDERN (respondent)
FILE NO/S:	D95/15
DIVISION:	Criminal
PROCEEDING:	Appeal pursuant to s 222 Justices Act
ORIGINATING COURT:	Ipswich Magistrates Court
DELIVERED ON:	6 October 2017
DELIVERED AT:	Ipswich
HEARING DATE:	3 March 2016
JUDGE:	Horneman-Wren SC DCJ
ORDER:	1. Appeal allowed. 2. Set aside the conviction and sentenced imposed on 3 November 2015. 3. Enter a verdict of not guilty.
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST CONVICTION –where appellant convicted after a summary trial of one charge of trespass – where appellant contends that the conviction was unsafe and unsatisfactory – where appellant contends that the sentence imposed was excessive – where the magistrate failed to adequately consider identification evidence – where the prosecution did not establish the identification of the appellant as the offender beyond reasonable doubt – where appeal allowed – where a not guilty verdict entered CRIMINAL LAW – APPEAL AGAINST SENTENCE – where appellant sentenced to four months imprisonment which was to be served cumulatively upon two suspended sentences – where parole eligibility date set – where appellant contends that the sentence imposed was excessive – where magistrate erred in not setting a parole release date – where conviction set aside as not guilty verdict recorded
COUNSEL:	Mr J Thomas (solicitor) for the appellant Ms E Kelso for the respondent
SOLICITORS:	McMillan Kelly Thomas Lawyers for the appellant Office of the Director of Public Prosecutions for the respondent