Legal Research
Cases
R v Ensbey; ex parte

R v Ensbey; ex parte

Case [2004] QCA 335 17 September 2004

Type to search within this case.

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ensbey; ex parte A-G (Qld) [2004] QCA 335

PARTIES:

R
v
ENSBEY, Douglas Roy
(appellant)

R
v
ENSBEY, Douglas Roy
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 94 of 2004
CA No 79 of 2004
DC 1857 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

29 June 2004

JUDGES:

Davies, Williams and Jerrard JJA
Separate reasons for judgment of each member of the Court, Davies and Jerrard JJA concurring as to the orders made, Williams JA dissenting in part

ORDER:

1. Appeal against conviction dismissed
2. Sentence appeal by Attorney-General dismissed

CATCHWORDS:

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - OTHER OFFENCES - where the appellant was convicted of destroying evidence pursuant to s 129 Criminal Code (Qld) - where the appellant was a pastor who became aware of an inappropriate sexual relationship occurring between a child and adult parishioner - where the appellant had in his possession the diary of the child which documented her activities with the adult parishioner - where the appellant was asked to return the diary notes to the family and returned them shredded and illegible - where the appellant submits that there were two reasonable hypotheses open to the jury as to his intention in destroying the diary and that he ought to have received the benefit of the doubt - whether it was reasonably open to the jury to conclude the appellant's intention was not to prevent it being used as evidence in a court case - whether appeal against conviction should be allowed

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where the respondent was sentenced to six months imprisonment, wholly suspended, with an operational period of two years - whether the sentence imposed is manifestly inadequate in the circumstances

Criminal Code 1899 (Qld), s 129

Knight v The Queen (1992) 175 CLR 495, applied

R v Fingleton [2003] QCA 266; CA No 177 of 2003, 26 June 2003, cited

R v Rogerson (1992) 174 CLR 269, cited
R v Selvage & Anor [1982] 1 All ER 96, cited
R v Vreones [1891] 1 QB 360, considered

COUNSEL:

R V Hanson QC, with G P Long, for Ensbey
S G Bain for the Crown

SOLICITORS:

Dibbs Barker Gosling for Ensbey
Director of Public Prosecutions (Queensland) for the Crown

DAVIES JA: On 11 March 2004 the appellant was convicted in the District Court of the offence that between 31 May 1995 and 1 July 1996 he, knowing that written diary notes might be needed in evidence, wilfully rendered them illegible or indecipherable with the intention of preventing them being…

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 Ensbey; ex parte

Details

AGLC: R v Ensbey; ex parte [2004] QCA 335
Case: [2004] QCA 335
Decision Date: 17 September 2004

CaseChat Overview and Summary

The appellant, a pastor, was convicted of destroying evidence by shredding a diary that documented an inappropriate sexual relationship between a child and an adult parishioner. The court was asked to determine whether it was reasonably open to the jury to conclude that the appellant's intention in destroying the diary was not to prevent it being used as evidence in a court case. The appellant argued that there were two reasonable hypotheses as to his intention, and that he should have received the benefit of the doubt. The court also considered whether the sentence imposed, six months imprisonment, wholly suspended, with an operational period of two years, was manifestly inadequate in the circumstances.

The primary legal issue was whether the jury could reasonably conclude that the appellant's intention in destroying the diary was not to prevent it from being used as evidence. The court noted that the jury was entitled to infer that the appellant's intention was to prevent the diary from being used as evidence, given the context and the nature of the relationship documented in the diary. The court found that it was reasonably open to the jury to conclude that the appellant's intention was not to prevent the diary being used as evidence, as the jury could have found that the appellant destroyed the diary for reasons unrelated to the evidence it contained. The court also noted that the jury was entitled to consider the appellant's conduct in returning the shredded diary to the family, which suggested that the appellant did not intend to prevent the diary from being used as evidence.

The court found that the jury's conclusion that the appellant intended to prevent the diary from being used as evidence was open to them and that the appellant was properly convicted. The court also found that the sentence imposed was not manifestly inadequate in the circumstances, and dismissed the appeal against sentence by the Attorney-General. The appeal against conviction was dismissed, and the sentence appeal by the Attorney-General was also dismissed.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Sentence appeal by Attorney-General 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.

Citations

AGLC Citation

R v Ensbey; ex parte [2004] QCA 335

Most Recent Citation

R v West [2012] QCA 365

Cases citing this decision · 7 of 7 shown

R v Campbell
[2022] QCA 135 Para 22

…CLR 59 at 63; Postiglione v The Queen (1997) 189 CLR 295 at 304. [64] R v Berns [2020] QCA 36 at 6-7. [65][2009] QCA 398. [66][2019] QCA 96. [67][2004] QCA 335. Consideration – re-sentence…
Ross v Commissioner of Police
[2019] QCA 96 Para 31

…ffences which punish conduct contrary to the administration of justice or in defiance of court orders. In R v Ensbey; Ex parte Attorney-General (Qld) [2004] QCA 335, the defendant had shredded and rendered illegible parts of a diary written by a child alleging sexual abuse by a parishioner. A six month term of im…
Forrester v Mattson
[2016] NTSC 16

…Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266; applied R v Ensbey; ex parte Attorney-General (Qld) [2004] QCA 335; (2005) 1 Qd R 159; referred to Giorgianni v The Queen (1985) 156 CLR 473; Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 35 A Crim R; Anderson v Lynch (1982) 17 NTR 21; distingu…
R v West
[2012] QCA 365

…en (1997) 189 CLR 295; [1997] HCA 26, followed R v Ensbey; ex parte Attorney-General (Qld) [2005] 1 Qd R 159; [2004] QCA 335, cited R v Harnden [2003] QCA 340, cited R v Kucharski [1997] VicSC 249, cited R v Wager , unreported, Court of Criminal Appeal, Queensland, Macrossan CJ, and Kelly and Connolly JJ, No 79 o…
Police v Luca
[2011] QMC 34 Para 8

…eady been lawfully done by a juror or witness, and accordingly a proceeding which has occurred or is still taking place.” [1] [2004] QCA 335…
R v Selim
[2007] NSWSC 362

…ill 2000 (Cth) CASES CITED: Beckwith v R (1976) 135 CLR 569 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 R v Ensbey; ex parte A-G (Qld) [2004] QCA 335 R v Selim [2007] NSWSC 322 Selim v Regina [2006] NSWCCA 378 The Queen v Lavender (2005) 222 CLR 67 PARTIES: James Selim (Acc) The Crown (Cth) FILE NU…
Selim v Regina
[2006] NSWCCA 378

…6 (NSW) Trade Practices Act 1974 (Cth) Therapeutic Goods Act 1989 (Cth) CASES CITED: Kang v Kwan [2002] NSWSC 1187 R v Ensbey; ex parte A-G (Qld) [2004] QCA 335 R v Janceski (2005) 64 NSWLR 10 R v O'Halloran (2000) 182 ALR 431 Romeyko v Samuels (1972) 2 SASR 529 PARTIES: James Selim (Appl) The Crown FILE NUMBER(S…

View all 7 citing cases →

Cases cited in this decision · 7 of 7 shown

R v Fingleton
[2003] QCA 266 Para 1

…ance for the appellant’s previous good character whilst operating as an appropriate deterrent sentence. The decision of this court in R v Fingleton [2003] QCA 266 supports such a sentence. There the offender was found guilty after a trial of an offence in the broad category of interference with the administration…
Meissner v the Queen
[1995] HCA 41 Para 1

…e course of justice, which is consistent with the citation of it in The Queen v Murphy (1985) 158 CLR 596 at 609, and from it in Meissner v The Queen (1995) 184 CLR 132 at 141 in the joint judgment of Brennan, Toohey and McHugh JJ at 141, and by Deane J at 148. The description given in R v Selvage of the charge in R…
Knight v The Queen
[1992] HCA 56 Para 1

…y ought to have so found they ought to have given the appellant the benefit of the doubt necessarily created by that circumstance: Knight v The Queen (1992) 175 CLR 495 at 503.…
R v Rogerson
[1992] HCA 25 Para 1

…th at common law and under statutory provisions may be committed notwithstanding that curial proceedings are no more than a possibility: R v Rogerson (1992) 174 CLR 268 at 277.…
R v Murphy
[1985] HCA 50 Para 1

…e of the development of the offence of attempting to pervert the course of justice, which is consistent with the citation of it in The Queen v Murphy (1985) 158 CLR 596 at 609, and from it in Meissner v The Queen (1995) 184 CLR 132 at 141 in the joint judgment of Brennan, Toohey and McHugh JJ at 141, and by Deane J a…
The Queen v Murphy (New South Wales)
[1869] UKPC 56 Para 1

…ay provide a picture of the development of the offence of attempting to pervert the course of justice, which is consistent with the citation of it in The Queen v Murphy (1985) 158 CLR 596 at 609, and from it in Meissner v The Queen (1995) 184 CLR 132 at 141 in the joint judgment of Brennan, Toohey and McHugh JJ at 141, and…
[1891] 1 QB 360
[1891] 1 QB 360

…2003] QCA 266; CA No 177 of 2003, 26 June 2003, cited R v Rogerson (1992) 174 CLR 269, cited R v Selvage & Anor [1982] 1 All ER 96, cited R v Vreones [1891] 1 QB 360, considered COUNSEL: R V Hanson QC, with G P Long, for Ensbey S G Bain for the Crown SOLICITORS: Dibbs Barker Gosling for Ensbey Director of Public P…

Legislation cited in this decision · 1

Evidence Act 1977 (Qld)
1 mention (from Para 1)

CITATION:	R v Ensbey; ex parte A-G (Qld) [2004] QCA 335
PARTIES:	R v ENSBEY, Douglas Roy (appellant) R v ENSBEY, Douglas Roy (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:	CA No 94 of 2004 CA No 79 of 2004 DC 1857 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Appeal by A-G (Qld)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	17 September 2004
DELIVERED AT:	Brisbane
HEARING DATE:	29 June 2004
JUDGES:	Davies, Williams and Jerrard JJA Separate reasons for judgment of each member of the Court, Davies and Jerrard JJA concurring as to the orders made, Williams JA dissenting in part
ORDER:	1. Appeal against conviction dismissed 2. Sentence appeal by Attorney-General dismissed
CATCHWORDS:	CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - OTHER OFFENCES - where the appellant was convicted of destroying evidence pursuant to s 129 Criminal Code (Qld) - where the appellant was a pastor who became aware of an inappropriate sexual relationship occurring between a child and adult parishioner - where the appellant had in his possession the diary of the child which documented her activities with the adult parishioner - where the appellant was asked to return the diary notes to the family and returned them shredded and illegible - where the appellant submits that there were two reasonable hypotheses open to the jury as to his intention in destroying the diary and that he ought to have received the benefit of the doubt - whether it was reasonably open to the jury to conclude the appellant's intention was not to prevent it being used as evidence in a court case - whether appeal against conviction should be allowed CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OTHER OFFENCES - where the respondent was sentenced to six months imprisonment, wholly suspended, with an operational period of two years - whether the sentence imposed is manifestly inadequate in the circumstances Criminal Code 1899 (Qld), s 129 Knight v The Queen (1992) 175 CLR 495, applied R v Fingleton [2003] QCA 266; CA No 177 of 2003, 26 June 2003, cited R v Rogerson (1992) 174 CLR 269, cited R v Selvage & Anor [1982] 1 All ER 96, cited R v Vreones [1891] 1 QB 360, considered
COUNSEL:	R V Hanson QC, with G P Long, for Ensbey S G Bain for the Crown
SOLICITORS:	Dibbs Barker Gosling for Ensbey Director of Public Prosecutions (Queensland) for the Crown