R v. Sinden - [2000] QCA 408

[2000] QCA 408

COURT OF APPEAL

de JERSEY CJ
McPHERSON JA
HELMAN J

CA No 163 of 2000

THE QUEEN

DEREK SINDEN

BRISBANE

..DATE 02/10/2000

JUDGMENT

THE CHIEF JUSTICE: The appellant was convicted by a jury of three offences, entering a dwelling house with intent to commit an indictable offence committed between 11 and 14 April 1999 with a consequential robbery with personal violence on the same occasion, and entering the same dwelling house and stealing committed about 10 days later. The ground of appeal is that the verdicts are unsafe.

The Crown case was of a circumstantial character. There was no challenge to the occurrence of the offences. The issue on appeal was whether the Crown established beyond reasonable doubt that the appellant was the offender. The complainant woman resided by herself in a high-set house at East Brisbane. Her account of the first two offences was that she discovered the offender crouched under a set of casement windows in the room at the rear of her house. Access to the house could have been gained through windows which were then open bordering the set of steps providing access to the house. The back door was closed.

The police later found one identifiable fingerprint on the window sill. The defence conceded at the trial that it was the appellant's. The appellant did not give evidence. When the complainant challenged the appellant as to what he was doing he demanded to know where her money was. He pushed the complainant and when she started to cry out he put his hand over her mouth in a rough fashion causing some bleeding. She felt that he may have had a cloth over his hand. He stole $60 from her purse. He left, she reasonably inferred, by climbing out through the windows by which he had presumably entered the house. The direction of the fingerprint pointed into the house. There is any number of explanations for that. The complainant could not on this occasion see much of the man: he was behind her for most of the time. She said that he had dark curly hair tied in a pony tail; he was fairly tall. She said that he was caucasian - the appellant is Aboriginal - but that was based just on seeing the back of the intruder's neck.

On the second occasion the intruder surprised the complainant in her kitchen coming up behind her and demanding money. She asked why he wanted the money, referring to his having taken her money on the previous occasion and he said that he had a sick six-year-old daughter. The appellant has a daughter whom he partly supports financially and she is afflicted with cerebral palsy. The child was then five years old, not six, having just celebrated the anniversary of her birthday. That is an error explicable perhaps by the tension of the occasion.

The appellant took the complainant's loose change this time. The complainant said that the offender's voice was similar…

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 [2000] QCA 408
Case: [2000] QCA 408
Decision Date: 02/10/2000

CaseChat Overview and Summary

In the case of The Queen v. Derek Sinden, the appellant was convicted by a jury of three offences: entering a dwelling house with intent to commit an indictable offence, robbery with personal violence, and stealing. The offences were committed between 11 and 14 April 1999 and involved the complainant, who resided alone in a high-set house at East Brisbane. The appellant appealed against his conviction, arguing that the verdicts were unsafe. The core issue before the court was whether the Crown had established beyond reasonable doubt that the appellant was the offender. The Crown's case was circumstantial, with no dispute over the occurrence of the offences. Key evidence included a fingerprint found on the window sill, which the defence conceded belonged to the appellant, and the complainant's testimony that the intruder on both occasions had a similar build, voice, and hair style as the appellant. The complainant also noted that the intruder on the second occasion mentioned having a sick six-year-old daughter, a detail that the appellant had, given that his five-year-old daughter has cerebral palsy. The complainant did not identify the appellant when shown a photoboard by the police.

The court examined the strength of the circumstantial evidence, including the fingerprint, the complainant's belief that the intruder on the second occasion was the same as the first, and the reference to the intruder's sick child. The court found that these elements, particularly the fingerprint, provided a strong basis for the jury's verdict. The appellant's nearby residence also lent weight to the Crown's case. The court concluded that the jury should not have reasonably found the circumstantial case insufficiently strong to establish guilt beyond reasonable doubt, and the appeal against conviction was dismissed. The appellant also sought leave to appeal against the seven-year terms of imprisonment imposed by the trial judge. However, given that the appeal against conviction was unsuccessful, the application for leave to appeal in relation to sentence could not succeed. The terms were deemed appropriate in light of the appellant's substantial past criminal history.

The appeal against conviction was dismissed, and the application for leave to appeal against sentence was refused. The Court of Appeal, comprising Jersey CJ, McPherson JA, and Helman J, all agreed on the outcome.

Orders