R v Bawden - [2004] QCA 285

SUPREME COURT OF QUEENSLAND

CITATION:

R v Bawden [2004] QCA 285

PARTIES:

R
v
BAWDEN, Benjamin Charles
(appellant/applicant)

FILE NO/S:

CA No 59 of 2004
DC No 2847 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

6 August 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2004

JUDGES:

McMurdo P, McPherson JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Application to adduce further evidence refused

2.   Appeal against conviction refused

3.   Application for leave to appeal against sentence dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance – where appellant claimed inconsistencies in evidence of police against him – whether the jury's verdict was unreasonable and could not be supported having regard to the whole of the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where appellant sought to introduce material available to his legal representatives at trial – whether such material should be admitted on appeal

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEALS AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – OTHER OFFENCES – where applicant fined $1000 and disqualified from holding a driver's licence for 18 months – where applicant lived several hundred kilometres from home town – whether sentence was manifestly excessive

Gallagher v The Queen (1986) 160 CLR 392, cited
Mickelberg v The Queen (1989) 167 CLR 259, cited
TKWJ v The Queen (2002) 212 CLR 124, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: Benjamin Charles Bawden was convicted of dangerously operating a vehicle whilst adversely affected by an intoxicating substance in the District Court at Brisbane on 13 February 2004. A conviction was recorded; he was fined $1,000 to be paid within nine months and disqualified from holding a driver's licence for 18 months. He represents himself on this appeal against conviction and application for leave to appeal against sentence.

He contends that the verdict of guilty is unreasonable and cannot be supported having regard to the whole of the evidence and seeks leave to adduce evidence not called at the trial.

The evidence

The prosecution case turned on the evidence of two police officers, Smedley and Collins, who were patrolling the Caboolture area in a marked police car, driven by police officer Smedley, in the early hours of the morning…

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 R v Bawden

Details

AGLC: R v Bawden [2004] QCA 285
Case: [2004] QCA 285
Decision Date: 6 August 2004

CaseChat Overview and Summary

The case of R v Bawden involved the appellant who was convicted of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance. The appellant challenged the conviction on the grounds of an unreasonable or insupportable verdict, citing inconsistencies in the police evidence against him. Additionally, the appellant sought to introduce fresh evidence that was available to his legal representatives at the time of the trial, arguing that it should be admitted on appeal. Finally, the appellant sought to appeal against the sentence, arguing that the fine and disqualification from holding a driver's licence were manifestly excessive.

The court had to determine whether the jury's verdict was unreasonable and insupportable, given the evidence presented. The court also needed to decide whether the fresh evidence, which was available at the time of trial, should be admitted on appeal. Furthermore, the court was required to assess whether the sentence imposed was manifestly excessive, considering the appellant's circumstances, including his residence several hundred kilometres from his hometown.

In dismissing the appeal against conviction, the court found that the inconsistencies in the police evidence did not render the jury's verdict unreasonable or insupportable. The court held that it was the jury's role to assess the credibility of the witnesses and that the inconsistencies did not undermine the overall reliability of the evidence. The court also refused to admit the fresh evidence, as it was available to the appellant's legal representatives at the time of trial. Regarding the sentence, the court dismissed the application for leave to appeal, finding that the sentence was not manifestly excessive, taking into account all relevant factors.

The court's orders were that the application to adduce further evidence was refused, the appeal against conviction was refused, and the application for leave to appeal against the sentence was dismissed.

Orders

Orders of the court

1. Application to adduce further evidence refused

2. Appeal against conviction refused

3. Application for leave to appeal against sentence 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.

CITATION:	R v Bawden [2004] QCA 285
PARTIES:	R v BAWDEN, Benjamin Charles (appellant/applicant)
FILE NO/S:	CA No 59 of 2004 DC No 2847 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	6 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 July 2004
JUDGES:	McMurdo P, McPherson JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application to adduce further evidence refused 2. Appeal against conviction refused 3. Application for leave to appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL DISMISSED – where appellant convicted of dangerous operation of a motor vehicle whilst adversely affected by an intoxicating substance – where appellant claimed inconsistencies in evidence of police against him – whether the jury's verdict was unreasonable and could not be supported having regard to the whole of the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – FRESH EVIDENCE – GENERAL PRINCIPLES – where appellant sought to introduce material available to his legal representatives at trial – whether such material should be admitted on appeal CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEALS AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – OTHER OFFENCES – where applicant fined $1000 and disqualified from holding a driver's licence for 18 months – where applicant lived several hundred kilometres from home town – whether sentence was manifestly excessive Gallagher v The Queen (1986) 160 CLR 392, cited Mickelberg v The Queen (1989) 167 CLR 259, cited TKWJ v The Queen (2002) 212 CLR 124, cited
COUNSEL:	The appellant/applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The appellant/applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent