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R v. Heginbotham, McCartney & Room

R v. Heginbotham, McCartney & Room

Case [2008] QCA 47 7 March 2008

Appeal

Jurisdiction

Unreasonable or Insupportable Verdict

Burden of Proof

Corroboration

Sufficient Evidence

Admissibility of Evidence

Expert Evidence

Criminal Law

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Heginbotham, McCartney & Room [2008] QCA 47

PARTIES:

R
v
HEGINBOTHAM, Ryan Keith
(appellant/applicant)

R
v
McCARTNEY, Daniel Gary
(appellant/applicant)

R
v
ROOM, Matthew Nicholas
(appellant/applicant)

FILE NO/S:

CA No 219 of 2007
CA No 272 of 2007
CA No 223 of 2007
CA No 304 of 2007
CA No 243 of 2007
CA No 275 of 2007
DC No 2401 of 2007
DC No 1943 of 2007
DC No 1944 of 2007
DC No 2210 of 2005
DC No 2579 of 2005
DC No 1942 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

7 March 2008

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2008

JUDGES:

Keane, Muir and Fraser JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.    That in relation to the appellant Heginbotham, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of the counts in indictment number 1942 of 2007 and count one on indictment number 1944 of 2007, by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments.

2.    That in relation to the appellant McCartney, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of counts 2, 4, 6, 8, 9, 10, 11, 12 and 13 in indictment number 2210 of 2005 and counts 1 to 5 on indictment number 2579 of 2005 by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments.

3.    That in relation to the appellant Room, the appeal against convictions of the offences in counts 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence imposed upon him for each of the 3 counts in indictment number 1942 of 2007 by setting aside the parole release date of 1 February 2008 and instead fixing a parole release date of 22 October 2007. Otherwise confirm the sentences imposed below in relation to that indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED

EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – IN GENERAL – where the prosecution case depended…

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. Heginbotham, McCartney & Room

Details

AGLC: R v Heginbotham, McCartney & Room [2008] QCA 47
Case: [2008] QCA 47
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of R v Heginbotham, McCartney & Room involved an appeal against convictions by three appellants. The nature of the dispute centred around the sufficiency and reliability of the evidence presented against them. The Court of Appeal in Queensland was tasked with reviewing the trial proceedings and determining whether the convictions were reasonable and supported by the evidence. The appellants challenged the credibility and weight of the primary witness, who was under the influence of drugs and had retracted her initial statements. They also questioned the need for corroboration of the accomplices' evidence and the overall sufficiency of the evidence against them.

The legal issues before the court were whether the evidence provided by the key witness was reliable and sufficient to support the appellants' convictions beyond reasonable doubt, and whether the trial judge had erred in instructing the jury regarding the need for corroboration. The court had to consider the impact of the witness's retraction and contradictions on the prosecution's case and whether the remaining evidence was sufficient to support the convictions. Additionally, the court examined the sentences imposed on the appellants in light of some of the convictions being quashed.

In reaching its decision, the court held that the evidence of the key witness was unreliable due to her drug use and inconsistencies in her testimony. The contradictions and retractions seriously undermined the prosecution's case. The court found that the evidence did not support a verdict of guilt beyond reasonable doubt for some of the appellants' convictions. The court also concluded that the trial judge's instructions on corroboration were not erroneous, but the lack of reliable evidence meant that a reasonable doubt remained. Consequently, the court allowed the appeals against certain convictions, quashed those convictions, and entered verdicts of acquittal. The sentences were varied in some instances to reflect the reduced convictions.

The final orders of the court included quashing certain convictions for each appellant, entering verdicts of acquittal for those offences, and varying the sentences to reflect the reduced convictions. The court reduced the sentences for some of the appellants, taking into account their cooperation with authorities and early guilty pleas on other charges. The court confirmed the sentences for other convictions, ensuring that the sentences were proportionate to the remaining convictions.

Orders

Orders of the court

1. That in relation to the appellant Heginbotham, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of the counts in indictment number 1942 of 2007 and count one on indictment number 1944 of 2007, by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments.

2. That in relation to the appellant McCartney, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of counts 2, 4, 6, 8, 9, 10, 11, 12 and 13 in indictment number 2210 of 2005 and counts 1 to 5 on indictment number 2579 of 2005 by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments.

3. That in relation to the appellant Room, the appeal against convictions of the offences in counts 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence imposed upon him for each of the 3 counts in indictment number 1942 of 2007 by setting aside the parole release date of 1 February 2008 and instead fixing a parole release date of 22 October 2007. Otherwise confirm the sentences imposed below in relation to that indictment.

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 Heginbotham, McCartney & Room [2008] QCA 47

Most Recent Citation

R v Heginbotham [2009] QCA 32

Cases citing this decision · 3 of 3 shown

R v Mischewski
[2019] QCA 56 Para 15

…Mr Wilson seeks to draw an analogy in respect of Mr Ratima’s evidence and the scenario that was considered in R v Heginbotham, McCartney & Room [2008] QCA 47. Each of the defendants in Heginbotham appealed against their convictions for counts arising out of break-ins. The fact of the break-ins had been admitted…
R v Harrison
[2015] QCA 210

…. In particular, a six year sentence was supported by R v Faramus [1999] QCA 167, and the more recent decision of R v Heginbotham, McCartney & Room [2008] QCA 47.…
R v Heginbotham
[2009] QCA 32 Para 1

…a half years imprisonment. Otherwise, it confirmed the sentences imposed by the learned sentencing judge.[1] [1]See R v Heginbotham, McCartney & Room [2008] QCA 47.…

View all 3 citing cases →

Cases cited in this decision · 16 of 16 shown

R v Weeding
[2007] QCA 311 Para 1

…It is appropriate also to mention three other decisions to which Heginbotham’s counsel referred, namely R v Weeding [2007] QCA 311, R v Gates [2002] QCA 320 and R v Bonner [2000] QCA 37.…
R v Bryant
[2007] QCA 247 Para 1

…In R v Bryant [2007] QCA 247, the sentencing judge at first instance had sentenced the offender to five years imprisonment and fixed a parole eligibility date of two years. The court allowed his appeal. After an extensive review of the comparable cases, the Court substituted a sentence of four years imprisonment,…
R v Taufahema
[2007] HCA 11 Para 1

…set aside. Because the evidence at the trial did not justify a conviction, the discretion to order a new trial should not be exercised: R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 at [35], [52], [159]. A verdict of acquittal should be entered.…
R v Weston
[2005] QCA 176 Para 1

…generally supported by R v Easton [2002] QCA 110, R v Karbanowski [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129 and R v Western [2005] QCA 176. Significantly longer sentences of imprisonment have been upheld where a similar amount was stolen but the offender has had an even more persistent a…
R v Muscat
[2005] QCA 129 Para 1

…d was caused by McCartney), is generally supported by R v Easton [2002] QCA 110, R v Karbanowski [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129 and R v Western [2005] QCA 176. Significantly longer sentences of imprisonment have been upheld where a similar amount was stolen but the offender ha…
R v Lennon
[2005] QCA 10 Para 1

…(larger than I have assumed was caused by McCartney), is generally supported by R v Easton [2002] QCA 110, R v Karbanowski [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129 and R v Western [2005] QCA 176. Significantly longer sentences of imprisonment have been upheld where a similar amount was…
Jenkins v The Queen
[2004] HCA 57

…1992 (Qld), s 13, s 13A, s 159A Jenkins v R (2004) 211 ALR 116; [2004] HCA 57, considered M v R (1994) 181 CLR 487; [1994] HCA 63, referred to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, referred to Pollitt v R (1992) 174 CLR 558; [1992] HCA 35, considered R v Bonner [2000] QCA 37, considered R v Bryant [2007]…
R v Karbanowicz
[2003] QCA 543 Para 1

…rder of $20,000 or greater (larger than I have assumed was caused by McCartney), is generally supported by R v Easton [2002] QCA 110, R v Karbanowski [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129 and R v Western [2005] QCA 176. Significantly longer sentences of imprisonment have been upheld…
MFA v The Queen
[2002] HCA 53

…rred to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, referred to Pollitt v R (1992) 174 CLR 558; [1992] HCA 35, considered R v Bonner [2000] QCA 37, considered R v Bryant [2007] QCA 247, considered R v Faramus [1999] QCA 167, considered R v Gates [2002] QCA 320, considered R v McCartney [1999] QCA 238, ref…
R v Gates
[2002] QCA 320 Para 1

…It is appropriate also to mention three other decisions to which Heginbotham’s counsel referred, namely R v Weeding [2007] QCA 311, R v Gates [2002] QCA 320 and R v Bonner [2000] QCA 37.…
R v Easton
[2002] QCA 110 Para 1

…t theft causing loss of in the order of $20,000 or greater (larger than I have assumed was caused by McCartney), is generally supported by R v Easton [2002] QCA 110, R v Karbanowski [2003] QCA 543, R v Lennon [2005] QCA 10, R v Muscat [2005] QCA 129 and R v Western [2005] QCA 176. Significantly longer sentences o…
R v Bonner
[2000] QCA 37 Para 1

…o mention three other decisions to which Heginbotham’s counsel referred, namely R v Weeding [2007] QCA 311, R v Gates [2002] QCA 320 and R v Bonner [2000] QCA 37.…
R v McCartney
[1999] QCA 238 Para 1

…t he had been convicted of a serious violent offence, for one count of robbery with actual violence and one count of attempted robbery: R v McCartney [1999] QCA 238.…
R v Faramus
[1999] QCA 167 Para 1

…t have been upheld where a similar amount was stolen but the offender has had an even more persistent and longer history of offending: in R v Faramus [1999] QCA 167, a sentence of six years imprisonment was upheld for such an offender in his late 30’s who caused loss of some $24,000.…
M v the Queen
[1994] HCA 63

…CA 57, considered M v R (1994) 181 CLR 487; [1994] HCA 63, referred to MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53, referred to Pollitt v R (1992) 174 CLR 558; [1992] HCA 35, considered R v Bonner [2000] QCA 37, considered R v Bryant [2007] QCA 247, considered R v Faramus [1999] QCA 167, considered R v Gat…
Pollitt v The Queen
[1992] HCA 35

…referred to Pollitt v R (1992) 174 CLR 558; [1992] HCA 35, considered R v Bonner [2000] QCA 37, considered R v Bryant [2007] QCA 247, considered R v Faramus [1999] QCA 167, considered R v Gates [2002] QCA 320, considered R v McCartney [1999] QCA 238, referred to R v Taufahema (2007) 228 CLR 232; [2007] HCA 11, a…

Legislation cited in this decision · 5

Criminal Code Act 1899 (Qld)
632 2 mentions (from Para 1)
Criminal Law Amendment Act 2000 (Qld)
632 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
9A 2 mentions (from Para 1)
Penalties and Sentences Act 1992 (Qld)
13 2 mentions (from Para 1)
Criminal Law Amendment Act 1997 (Qld)
1 mention (from Para 1)

CITATION:	R v Heginbotham, McCartney & Room [2008] QCA 47
PARTIES:	R v HEGINBOTHAM, Ryan Keith (appellant/applicant) R v McCARTNEY, Daniel Gary (appellant/applicant) R v ROOM, Matthew Nicholas (appellant/applicant)
FILE NO/S:	CA No 219 of 2007 CA No 272 of 2007 CA No 223 of 2007 CA No 304 of 2007 CA No 243 of 2007 CA No 275 of 2007 DC No 2401 of 2007 DC No 1943 of 2007 DC No 1944 of 2007 DC No 2210 of 2005 DC No 2579 of 2005 DC No 1942 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction Sentence Application
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	7 March 2008
DELIVERED AT:	Brisbane
HEARING DATE:	31 January 2008
JUDGES:	Keane, Muir and Fraser JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. That in relation to the appellant Heginbotham, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of the counts in indictment number 1942 of 2007 and count one on indictment number 1944 of 2007, by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments. 2. That in relation to the appellant McCartney, the appeal against convictions of the offences in counts 2, 3, 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence of four years imprisonment imposed upon him for each of counts 2, 4, 6, 8, 9, 10, 11, 12 and 13 in indictment number 2210 of 2005 and counts 1 to 5 on indictment number 2579 of 2005 by substituting in each case three and a half years imprisonment. Otherwise confirm the sentences imposed below in relation to those indictments. 3. That in relation to the appellant Room, the appeal against convictions of the offences in counts 5 and 6 of indictment number 2401 of 2007 be allowed, that the convictions be quashed and that judgments and verdicts of acquittal be entered. Vary the sentence imposed upon him for each of the 3 counts in indictment number 1942 of 2007 by setting aside the parole release date of 1 February 2008 and instead fixing a parole release date of 22 October 2007. Otherwise confirm the sentences imposed below in relation to that indictment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – UNREASONABLE OR INSUPPORTABLE VERDICT – WHERE APPEAL ALLOWED EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – GENERALLY – CREDIBILITY AND WEIGHT – IN GENERAL – where the prosecution case depended…