R v HENDERSON, Mark David Jon (appellant/applicant)
FILE NO/S:
CA No 55 of 2012 CA No 11 of 2013 DC No 898 of 2011
DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction Application for Extension (Sentence)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
14 February 2014
DELIVERED AT:
Brisbane
HEARING DATE:
3 October 2013
JUDGES:
Margaret McMurdo P and Mullins and Henry JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
Appeal dismissed.1.
Application to extend time refused.2.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant pleaded not guilty to fraud with a circumstance of aggravation – where the jury found the appellant guilty – whether the verdict of guilty was reasonably open on the evidence
CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE – where the appellant stood trial alone, his co-accused’s legal representatives having indicated his co-accused would plead guilty – whether absence of co-accused at time of arraignment caused a miscarriage of justice
CRIMINAL LAW – PROCEDURE – WITNESSES – HOSTILE AND UNFAVOURABLE WITNESSES – whether witness was unreliable and the testimony of said witness was prejudicial to the appellant – whether the trial judge issued the correct direction in relation to the testimony of the witness
CRIMINAL LAW – SENTENCE – RELEVANT FACTORS – PARITY BETWEEN CO-OFFENDERS – GROUNDS FOR DISCRIMINATION BETWEEN CO-OFFENDERS – GENERAL – where the appellant was sentenced to nine years imprisonment with a parole eligibility date set after the service of four years – where conviction appealed and extension of time sought to appeal sentence – whether sentence imposed was manifestly excessive – whether cooperation at trial is grounds for reduced sentence – whether sentence should be consistent with co-offender’s sentence
Criminal Code 1899 (Qld), s 568(3), s 597B, s 604, s 668E Evidence Act 1977 (Qld), s 21A
The appellant appeared on his own behalf S J Hamlyn-Harris for the applicant S P Vasta for the respondent
SOLICITORS:
The appellant appeared on his own behalf Fisher Dore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent
MARGARET McMURDO P: I agree with Henry J's reasons for dismissing…
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.
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Details
AGLC
R v Henderson [2014] QCA 12
Case
[2014] QCA 12
Decision Date
CaseChat Overview and Summary
In the case of R v Henderson, the appellant was convicted of fraud with a circumstance of aggravation and subsequently appealed the decision. The appellant's primary contention was that the verdict was unreasonable and insupportable in light of the evidence presented. The appeal also addressed whether the absence of the co-accused during the trial led to a miscarriage of justice, as well as issues regarding the reliability of a key witness and the fairness of the sentence imposed.
The legal issues before the court included whether the verdict of guilty was reasonably open on the evidence, whether the absence of the co-accused at the time of arraignment caused a miscarriage of justice, whether the trial judge correctly handled the testimony of a hostile and unfavourable witness, and whether the sentence was manifestly excessive or inconsistent with that of the co-offender. The court examined the evidence and the trial process to determine if there was any substantial miscarriage of justice that warranted a new trial or a reconsideration of the sentence.
The court found that the evidence was sufficient to support the jury's verdict, and there was no substantial miscarriage of justice due to the absence of the co-accused at the arraignment. The testimony of the hostile witness, despite being unreliable, did not prejudice the appellant to the extent that it affected the outcome of the trial. The trial judge had correctly directed the jury regarding the weight to be given to the witness's testimony. Furthermore, the sentence imposed was not manifestly excessive, and there were valid grounds for differentiating the sentence between the appellant and the co-offender.
The appeal was dismissed, and the application to extend the time to appeal the sentence was refused. The court upheld the original sentence and found no grounds for reducing the appellant's sentence or for ordering a new trial.