Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Determined (QCA)

Hendle v Commissioner of Police

 

[2020] QCA 26

[2020] QCA 26

COURT OF APPEAL

FRASER JA

McMURDO JA

MULLINS JA

CA No 85 of 2019

DC No 7 of 2018

HENDLE, William George Applicant

v

COMMISSIONER OF POLICE Respondent

BRISBANE

FRIDAY, 21 FEBRUARY 2020

JUDGMENT

FRASER JA:  After a two day trial in the Magistrates Court the applicant was convicted of dangerous operation of a motor vehicle and of wilful damage.  His appeal to the District Court against his conviction for wilful damage was dismissed.  The applicant now applies for leave to appeal against that decision.

In relation to the wilful damage offence the prosecution case in the Magistrates Court was that the applicant wilfully damaged an old wooden storage shed on a neighbour’s property by driving his car into collision with it soon after the applicant had a disagreement with a different neighbour.  Three witnesses gave evidence that they saw the applicant damage the shed by driving his car into it.  Another witness gave evidence that he heard crashes, observed damage to the shed, and saw the applicant driving away.

The overall effect of the evidence given by those four witnesses is that the shed, which was owned by and was wholly within the property of the neighbour, was badly damaged by the applicant deliberately driving his car into it and, after reversing a short distance, again deliberately driving his car into it at a different point.  The damage included the shed becoming crooked and parts falling off it.

A police officer recorded a conversation at the scene in which the applicant stated that he drove his car into the shed because he believed it was on his property.  The officer gave evidence that there were two points of impact on the shed, there were tyre markings on the grass at two separate locations near separate points where the shed appeared to have been impacted, the shed had shifted from its original resting place, and it had sustained considerable impact damage.  Date and time stamped images of the scene recorded by the officer’s bodycam and on his mobile phone were consistent with his evidence.  The officer denied the applicant’s suggestion in cross examination that the tyre marks were consistent with tractor marks.

The applicant gave evidence to the following effect.  He “bumped” his car once into a corner of the shed.  He did not “drive” into the shed.  He did not “bump” it twice.  He agreed that it was the neighbour’s shed but said that at the time of the collision the corner of the shed was two or three feet within his property.  He denied that he damaged it.  He stopped when the bull bar of his car started pushing back towards his car.  There was no damage to his car or the bull bar.  The applicant accepted that the images of the shed from the officer’s bodycam and his mobile phone showed that the shed was on the neighbour’s land and that it was damaged in the ways described by the police officer and other witnesses.  The applicant attributed the location and damage to the shed shown on the images to his neighbours having arranged for the shed to be moved by a tractor and damaged by a hammer and other tools in the evening, after the police officer had left.  He said he had heard a tractor engine and scraping noises that evening.  The applicant explained the inconsistency between that evidence and the evidence of the times recorded on the bodycam and mobile phone images by alleging that police had taken photographs on a subsequent day and backdated them to the day of the alleged offence.

The magistrate found that the prosecution witnesses were consistent and credible.  There was no evidence of concoction.  The magistrate rejected the applicant’s evidence as lacking credibility, including his evidence that a corner of the neighbour’s shed was on his land until the shed was moved by a tractor after the alleged offence, he merely “bumped” into the shed in an attempt to push it off his land, he only drove into the shed once, and he did not cause any damage to the shed.  Separately in respect of each element of the offence the magistrate found that the prosecution had proved the element beyond a reasonable doubt.  In the appeal to the District Court the judge conducted a fresh review of the evidence, made findings that are consistent with those made by the magistrate, and held that the applicant was rightly convicted of the offence.

The offence of which the applicant was convicted was created by s 469(1) of the Criminal Code.  Its elements are that the accused destroyed or damaged any property, did so wilfully, and did so unlawfully.  The applicant’s own evidence provided additional support for the inference arising from evidence in the prosecution case that the applicant intentionally drove his car into collision with the shed.  There could be no sensible argument about the first and third elements once the evidence in the prosecution case was accepted and the applicant’s evidence to the contrary was rejected as lacking credibility.  The accepted evidence that after a confrontation the applicant twice drove his car into collision with an old wooden shed with such force as to cause the substantial damage described in the evidence amply justified the inference drawn by the magistrate that the applicant intended to cause the particular kind of harm he did cause.  That finding satisfied the second element of the offence.

The applicant’s argument in this court is that he did not damage the shed when he drove his car into it.  The argument is in the form of assertions rather than a reasoned challenge to particular findings of the magistrate and the judge with reference to the evidence.  Some assertions are based upon new evidence the applicant sought to adduce for the first time in the District Court.  The applicant has not identified any arguable error in the judge’s decision to dismiss his application for leave to adduce that evidence.  The applicant asserts that his neighbours moved the shed with tractors and damaged it in that way and with tools, the police fabricated evidence, and the applicant has been the victim of a plot by his neighbours.  The applicant’s argument does not assist his case because the only evidentiary support for any of his assertions was his own testimony, which was rejected.  The applicant’s real complaint is that the magistrate disbelieved the applicant’s evidence and accepted the evidence against him.  Merely to make such a complaint is not to articulate a basis for appellate interference in any appeal.

The applicant’s proposed appeal under s 118(3) of the District Court of Queensland Act 1967 would challenge the judge’s findings and inferences about the facts which confirm those of the magistrate.  A factual finding or inference may be reviewed if it is not supported by evidence, which is not this case.  Otherwise it has been held that a factual finding or inference may be reviewed in an appeal under s 118(3) only if the finding or inference is unreasonable in the sense that there is an “overwhelming preponderance” of evidence against it or “such a preponderance of evidence” as to make it “unreasonable, and almost perverse”; see Hocking v Bell (1945) 71 CLR 430 at 499 (Dixon J), adopted in relation to an appeal under s 118(3) of the District Court of Queensland Act 1967 in McDonald v Queensland Police Service [2018] 2 Qd R 612 at paragraphs 17 to 22 and paragraph 39(f) and (h).  The judge’s findings and inferences are plainly not unreasonable.

Furthermore, there is no basis in the evidence before this court for thinking that the applicant has suffered a substantial injustice and there is no other ground justifying the grant of leave to appeal; see McDonald v Queensland Police Service [2018] 2 Qd R 612 at paragraph 39(d).

I would refuse leave to appeal.

McMURDO JA:  I agree.

MULLINS JA:  I agree.

FRASER JA:  The application for leave to appeal is refused.

Close

Editorial Notes

  • Published Case Name:

    Hendle v Commissioner of Police

  • Shortened Case Name:

    Hendle v Commissioner of Police

  • MNC:

    [2020] QCA 26

  • Court:

    QCA

  • Judge(s):

    Fraser JA, McMurdo JA, Mullins JA

  • Date:

    21 Feb 2020

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMagistrates Court (No Citation)-Appellant convicted of dangerous operation of a motor vehicle and of wilful damage.
Primary JudgmentDC7/18 (No Citation)15 Mar 2019Appeal against conviction pursuant to s 222 of the Justices Act dismissed: Chowdhury DCJ.
Appeal Determined (QCA)[2020] QCA 2621 Feb 2020Application for leave to appeal refused: Fraser, McMurdo and Mullins JJA.

Appeal Status

Appeal Determined (QCA)
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.