R v Sinden - [2015] QCA 280

SUPREME COURT OF QUEENSLAND

CITATION:

R v Sinden [2015] QCA 280

PARTIES:

R
v
SINDEN, Derek
(appellant)

FILE NO/S:

CA No 316 of 2014
DC No 1713 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Unreported, 27 November 2014

DELIVERED ON:

18 December 2015

DELIVERED AT:

Brisbane

HEARING DATE:

22 September 2015

JUDGES:

Holmes CJ and Philip McMurdo JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The appeal against conviction is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty before a jury to seven counts of fraud and one count of attempted fraud, was convicted of one count of robbery with personal violence and one count of fraud, and was acquitted of one count of fraud – where the appellant had robbed an elderly woman and, with a co-accused, used her credit cards to make a variety of purchases – where the co-accused gave evidence that the items purchased were exchanged for drugs – where the co-accused in cross-examination made reference to the appellant’s having threatened him – where the appellant argues that the trial judge should have given a general propensity warning, although none was sought – whether the trial judge erred – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty before a jury to seven counts of fraud and one count of attempted fraud, was convicted of one count of robbery with personal violence and one count of fraud, and was acquitted of one count of fraud – where the appellant’s co-accused in the frauds admitted in cross-examination to having lied to police about certain matters – where the trial judge cautioned the jury about acting on the co-accused’s evidence and raised the prospect of his having a motive to lie – where the appellant argues that the trial judge should have given an accomplice direction – where the appellant further argues that the trial judge should have directed the jury that if they rejected the proffered motive to lie it did not follow that the co-accused was telling the truth – where no such directions were sought at trial – whether the trial judge erred – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty before a jury to seven counts of fraud and one count of attempted fraud, was convicted of one count of robbery with personal violence and one count of fraud, and was acquitted of one count of fraud – where the co-accused gave evidence…

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 Sinden

Details

AGLC: R v Sinden [2015] QCA 280
Case: [2015] QCA 280
Decision Date: 18 December 2015

CaseChat Overview and Summary

The appeal against conviction in R v Sinden was dismissed by the court. The appellant had pleaded guilty to seven counts of fraud and one count of attempted fraud but was convicted of one count of robbery with personal violence and one count of fraud. The appellant argued that the trial judge should have given a general propensity warning, an accomplice direction, and directed the jury on flight, none of which were sought at trial. The court considered whether the trial judge had erred and whether there was a miscarriage of justice. The court also examined whether the verdict was unreasonable, considering the evidence presented.

The legal issues before the court were whether the trial judge had erred by not giving the warnings and directions the appellant contended were necessary, and whether these errors amounted to a miscarriage of justice. The court examined whether the trial judge should have given a general propensity warning despite none being sought, whether an accomplice direction was required given the co-accused's admitted lies and motive to lie, and whether the trial judge should have directed the jury on the significance of the appellant's flight upon seeing a person resembling the complainant. The court also considered whether the jury's acceptance of the co-accused's evidence, despite the appellant's arguments to the contrary, led to an unreasonable verdict.

The court found that the trial judge did not err in failing to give the warnings and directions the appellant claimed were necessary. The court held that the trial judge's caution to the jury regarding the co-accused's credibility was sufficient and that there was no miscarriage of justice. The court found that the jury's verdict was reasonable, considering the evidence and the co-accused's admissions and motive to lie. The court concluded that the verdict was not unreasonable, particularly given the appellant's flight upon seeing a person resembling the complainant.

The appeal against conviction was dismissed. The court upheld the jury's verdict, finding that the trial judge's directions were sufficient and that there was no miscarriage of justice. The court rejected the appellant's arguments that the trial judge should have given additional warnings and directions and that the verdict was unreasonable.

Orders

Orders of the court

The appeal against conviction is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Sinden [2015] QCA 280
PARTIES:	R v SINDEN, Derek (appellant)
FILE NO/S:	CA No 316 of 2014 DC No 1713 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Unreported, 27 November 2014
DELIVERED ON:	18 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	22 September 2015
JUDGES:	Holmes CJ and Philip McMurdo JA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The appeal against conviction is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty before a jury to seven counts of fraud and one count of attempted fraud, was convicted of one count of robbery with personal violence and one count of fraud, and was acquitted of one count of fraud – where the appellant had robbed an elderly woman and, with a co-accused, used her credit cards to make a variety of purchases – where the co-accused gave evidence that the items purchased were exchanged for drugs – where the co-accused in cross-examination made reference to the appellant’s having threatened him – where the appellant argues that the trial judge should have given a general propensity warning, although none was sought – whether the trial judge erred – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty before a jury to seven counts of fraud and one count of attempted fraud, was convicted of one count of robbery with personal violence and one count of fraud, and was acquitted of one count of fraud – where the appellant’s co-accused in the frauds admitted in cross-examination to having lied to police about certain matters – where the trial judge cautioned the jury about acting on the co-accused’s evidence and raised the prospect of his having a motive to lie – where the appellant argues that the trial judge should have given an accomplice direction – where the appellant further argues that the trial judge should have directed the jury that if they rejected the proffered motive to lie it did not follow that the co-accused was telling the truth – where no such directions were sought at trial – whether the trial judge erred – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant pleaded guilty before a jury to seven counts of fraud and one count of attempted fraud, was convicted of one count of robbery with personal violence and one count of fraud, and was acquitted of one count of fraud – where the co-accused gave evidence…