Pogadaev v Thomson - [2013] QDC 74

DISTRICT COURT OF QUEENSLAND

CITATION:

Pogadaev v Thomson [2013] QDC 74

PARTIES:

ALEXEI POGADAEV
(Appellant)

v

KELLIE ANITA THOMSON
(Respondent)

FILE NO/S:

BD1115/12

DIVISION:

Criminal

PROCEEDING:

Appellate

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

26 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

22 February 2013

JUDGE:

Farr SC DCJ

ORDER:

The appeal is upheld. 1.

The matter is remitted to the Magistrates Court to be presided over by a different Magistrate.2.

CATCHWORDS:

APPEAL – APPEAL ALLOWED - Justices Act 1886 - section 222 – appeal against conviction – appeal against sentence – appeal against conviction and sentence – where appellant convicted of threatening violence – section 75(1)(b) Criminal Code 1889 – where appellant convicted after summary trial – where Magistrate did not indicate that she had taken the evidence of a witness into account until after pronouncing her functional decision - where order of the sentences uttered by the Magistrate in the delivery of an ex tempore decision provides no basis for successful appeal - whether Prosecutor negatived witnesses version of events – where Magistrate did not accept witnesses evidence – where Magistrate failed to identify that the conclusion was reached upon the correct approach to considering the evidence

COUNSEL:

P Callaghan SC for the appellant.

J O’Brien for the respondent.

SOLICITORS:

Fisher Dore Lawyers for the appellant.

Director of Public Prosecutions for the respondent.

Background

The appellant was convicted on 27 February 2012 after a summary trial in the Brisbane Magistrates Court of threatening violence[1], such offence having taken place on 22 August 2011.
[1]Section 75(1)(b) of the Criminal Code.

The Magistrate sentenced the appellant on 28 February 2012 and ordered that he be admitted to a period of 18 months’ probation. No conviction was recorded.

The appellant appealed both the conviction and sentence by filing a notice of appeal on 22 March 2012.

Outline of prosecution case

On 22 August 2011, the complainant (Christopher Thomas Hughes) arrived home at his unit (unit 5) at about 4 p.m. Some time later he heard a vehicle drive into the unit block driveway. The complainant walked out onto his balcony and could see that the appellant, who was an occupant of unit 3 in the same unit block, had arrived home and parked his car in front of a “no parking” sign in the driveway of the unit block. The complainant called down to the appellant, “Hey mate, we spoke about this yesterday. Please can you stop parking there? We’re leaving soon. We’ve got to get out.” The complainant saw the appellant look up at him, ignore him and walk inside.[2]
[2]Transcript p 3 lines 1-10.

The complainant then walked down the stairwell at the front of the appellant’s unit and tried to speak with the appellant face to face. The complainant said, “Look, you’ve got to stop parking there. This isn’t right. What are you doing? We can’t access our garage when you park there” and gave some further explanation for his reasons…

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 Thomson

Details

AGLC: Pogadaev v Thomson [2013] QDC 74
Case: [2013] QDC 74
Decision Date: 26 April 2013

CaseChat Overview and Summary

In the case of Pogadaev v Thomson, the appellant, Mr Pogadaev, appealed against his conviction and sentence following a summary trial in the Magistrates Court. The dispute centred around a conviction under section 75(1)(b) of the Criminal Code 1889 for threatening to use violence towards another person. The Magistrate, after hearing the evidence, found the appellant guilty and imposed a sentence. The appellant's appeal was directed against both the conviction and the sentence, arguing that the Magistrate had failed to properly consider the evidence and that the sentence was excessive.

The central legal issues before the court were whether the Magistrate had correctly applied the principles of evidence and whether the sentence imposed was appropriate. Specifically, the appeal questioned whether the Magistrate's decision was vitiated by not acknowledging the witness's evidence until after the decision was made and whether the Prosecutor had successfully negated the witness's account. Additionally, the appeal contested whether the Magistrate had applied the correct approach in evaluating the evidence and reaching a conclusion.

The court determined that the appeal against the conviction should be allowed because the Magistrate did not properly consider the evidence. The order of the sentences as pronounced by the Magistrate did not provide a clear basis for the conviction, and there was an error in the procedural approach. The court found that the Magistrate had not correctly identified the conclusion reached upon the proper approach to considering the evidence. As a result, the appeal against the conviction was upheld, and the matter was remitted to the Magistrates Court for retrial before a different Magistrate. The appeal against the sentence was not successful as the court found no grounds to interfere with the sentence imposed.

Orders

Orders of the court

The appeal is upheld. 1.

The matter is remitted to the Magistrates Court to be presided over by a different Magistrate.2.

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:	Pogadaev v Thomson [2013] QDC 74
PARTIES:	ALEXEI POGADAEV (Appellant) v KELLIE ANITA THOMSON (Respondent)
FILE NO/S:	BD1115/12
DIVISION:	Criminal
PROCEEDING:	Appellate
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	26 April 2013
DELIVERED AT:	Brisbane
HEARING DATE:	22 February 2013
JUDGE:	Farr SC DCJ
ORDER:	The appeal is upheld. 1. The matter is remitted to the Magistrates Court to be presided over by a different Magistrate.2.
CATCHWORDS:	APPEAL – APPEAL ALLOWED - Justices Act 1886 - section 222 – appeal against conviction – appeal against sentence – appeal against conviction and sentence – where appellant convicted of threatening violence – section 75(1)(b) Criminal Code 1889 – where appellant convicted after summary trial – where Magistrate did not indicate that she had taken the evidence of a witness into account until after pronouncing her functional decision - where order of the sentences uttered by the Magistrate in the delivery of an ex tempore decision provides no basis for successful appeal - whether Prosecutor negatived witnesses version of events – where Magistrate did not accept witnesses evidence – where Magistrate failed to identify that the conclusion was reached upon the correct approach to considering the evidence
COUNSEL:	P Callaghan SC for the appellant. J O’Brien for the respondent.
SOLICITORS:	Fisher Dore Lawyers for the appellant. Director of Public Prosecutions for the respondent.