Pogadaev v Stewart - [2016] QDC 316

DISTRICT COURT OF QUEENSLAND

CITATION:

Pogadaev v Stewart [2016] QDC 316

PARTIES:

ALEXEI POGADAEV

(appellant)

v

BELINDA STEWART

(respondent)

FILE NO/S:

DC No 4533 of 2012

CA No 130 of 2014

MC No 1960 of 2012

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

7 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2016

JUDGE:

Reid DCJ

ORDER:

1. Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant had been convicted after trial of 12 counts of stealing, one count of possession of tainted property and one count of fraud – where the learned Magistrate failed to read the charges according to the procedure in s 145(1) Justices Act 1886 (Qld) – where the learned Magistrate failed to endorse the Bench Charge Sheets in accordance with r 14 Justices Regulation 2004 – whether these irregularities amount to appealable error

Justices Act1886 (Qld)

Children Services Act 1965 (Qld)

Criminal Code Act 1899 (Qld)

Justices Regulation 2004 (Qld)

Todhunter v Zacka; ex parte Zacka [1965] Qd R 515

Munday v Gill [1930] 44 CLR 38

R v Ross [1980] Qd R 24

Brown v Queensland Police Service [2011] QDC 301

McKinlay v Commissioner of Police [2011] QCA 356

Rochow v R [1983] 1 Qd R 184

Dixon v Wells (1890) 25 QBD 249

COUNSEL:

The appellant appeared on his own behalf

A P McGee (sol.) for the respondent

SOLICITORS:

The appellant appeared on his own behalf

Queensland Police Service for the respondent

Introduction

On 19 October 2012, after a trial before a magistrate, the appellant was found guilty of 12 counts of stealing bicycles, one of possession of tainted property and one of fraud. On 14 November 2012 he was sentenced on each count to a wholly suspended four month term of imprisonment with an operational period of 15 months.

A notice of appeal was subsequently filed. It identified various grounds alleging error by the learned magistrate. The notice of appeal indicated the appellant was then acting in person.

Subsequently the appellant, still acting in person, filed an outline of submissions on 26 February 2013. The respondent’s outline of submissions were filed on 27 March 2013.

On 14 November 2013 further written submissions on behalf of the appellant were filed. They were prepared by Mr Heaton QC who was then instructed by solicitors. The appellant sought leave to abandon the grounds set out in the original notice of appeal and sought to substitute the following grounds:

1. The learned Magistrate failed to follow the procedure set out in s 145(1) of the Justices Act1886 (Qld) in that the substance of the charges were never read to the appellant, nor was he asked how he wished to plead to the charges. This is an incurable irregularity in the process of determining the guilt of the appellant and the conviction should be quashed and the sentence set aside.

2. The learned Magistrate failed to comply with the procedure set out in Regulation 14…

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 Pogadaev v Stewart

Details

AGLC: Pogadaev v Stewart [2016] QDC 316
Case: [2016] QDC 316
Decision Date: 7 December 2016

CaseChat Overview and Summary

The case of Pogadaev v Stewart involved an appeal against a conviction rendered by the Magistrates Court of Queensland. The appellant was convicted following a trial on twelve counts of stealing, one count of possession of tainted property, and one count of fraud. The primary issue before the court was whether the procedural irregularities, specifically the learned Magistrate's failure to read the charges in accordance with s 145(1) of the Justices Act 1886 (Qld), and the failure to endorse the Bench Charge Sheets as per r 14 of the Justices Regulation 2004, constituted appealable error. The appellant argued that these procedural flaws undermined the fairness and validity of the trial, potentially affecting the outcome.

The court undertook a detailed examination of the statutory requirements and procedural mandates under which the charges were to be read and the Bench Charge Sheets endorsed. The court noted the importance of procedural correctness in maintaining the integrity of the judicial process. However, the court found that while the procedural errors were indeed present, they did not impact the appellant's right to a fair trial or lead to a miscarriage of justice. The court held that the errors, though significant, were not of such a nature as to vitiate the entire trial process. As a result, the appeal was dismissed, affirming the conviction and sentence imposed by the Magistrates Court.

Orders

Orders of the court

1. Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Pogadaev v Stewart [2016] QDC 316
PARTIES:	ALEXEI POGADAEV (appellant) v BELINDA STEWART (respondent)
FILE NO/S:	DC No 4533 of 2012 CA No 130 of 2014 MC No 1960 of 2012
DIVISION:	Criminal
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	7 December 2016
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2016
JUDGE:	Reid DCJ
ORDER:	1. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant had been convicted after trial of 12 counts of stealing, one count of possession of tainted property and one count of fraud – where the learned Magistrate failed to read the charges according to the procedure in s 145(1) Justices Act 1886 (Qld) – where the learned Magistrate failed to endorse the Bench Charge Sheets in accordance with r 14 Justices Regulation 2004 – whether these irregularities amount to appealable error Justices Act1886 (Qld) Children Services Act 1965 (Qld) Criminal Code Act 1899 (Qld) Justices Regulation 2004 (Qld) Todhunter v Zacka; ex parte Zacka [1965] Qd R 515 Munday v Gill [1930] 44 CLR 38 R v Ross [1980] Qd R 24 Brown v Queensland Police Service [2011] QDC 301 McKinlay v Commissioner of Police [2011] QCA 356 Rochow v R [1983] 1 Qd R 184 Dixon v Wells (1890) 25 QBD 249
COUNSEL:	The appellant appeared on his own behalf A P McGee (sol.) for the respondent
SOLICITORS:	The appellant appeared on his own behalf Queensland Police Service for the respondent