R v Sinden[2000] QCA 408

COURT OF APPEAL

de JERSEY CJ

McPHERSON JA

HELMAN J

CA No 163 of 2000

THE QUEEN

v.

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 to that of the intruder on the earlier occasion.  So was his build and hair.

She said that he was wearing a checked shirt and white or cream coloured "cargo pants" with sneakers.  The appellant visited his sister-in-law later that day.  He was then wearing light brown or cream coloured slacks but not cargo pants.  Of course he may have changed or quite simply one of the witnesses may have been mistaken. 

The complainant did not identify the appellant as the offender when shown a photoboard by the police.  The circumstances nevertheless giving weight to the Crown case were the presence of the appellant's fingerprint in the area through which the intruder may have entered and left the house; the complainant's belief that the intruder on the second occasion was the same as the intruder on the first, a matter reflected in what she said on the second occasion; and the reference to the intruder's sick child, the age discrepancy being explicable.

The fingerprint evidence was especially powerful, of course, in the absence of an innocent explanation for its presence, and none was established by the evidence.  The appellant, it may be noted, lived nearby.

I do not consider this to have been a case in which the jury should reasonably have found the circumstantial case insufficiently strong to establish guilt beyond reasonable doubt.  The verdicts are safe and the appeal against conviction should be dismissed.

In the form of the Notice of Appeal the appellant has separately sought leave to appeal against the seven-year terms of imprisonment imposed by the learned Judge in respect of these offences.

Counsel for the appellant conceded that if the appeal against conviction did not succeed in any degree then the application for leave to appeal in relation to sentence plainly could not succeed.  The seven-year terms were perfectly appropriate in light especially of the appellant's very substantial relevant past criminal history which, covering a period of some 13 years, included convictions for seven breaking and entering and like offences, an armed robbery in company, and six assaults.

The application for leave to appeal against sentence should be refused.

McPHERSON JA:  I agree.

HELMAN J:  I agree.

THE CHIEF JUSTICE:  Appeal against conviction dismissed and application for leave to appeal against sentence refused.

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