Jackson v Queensland Police Service
[2012] QDC 245
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- Jackson v Queensland Police Service[2012] QDC 245
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Jackson v Queensland Police Service[2012] QDC 245
Jackson v Queensland Police Service[2012] QDC 245
DISTRICT COURT OF QUEENSLAND
CITATION: | Jackson v Queensland Police Service [2012] QDC 245 |
PARTIES: | MICHAEL ROBERT JACKSON |
FILE NO/S: | D104/11 |
DIVISION: | Appellate jurisdiction |
PROCEEDING: | Appeal against conviction |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 30 August 2012 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 17 August 2012 |
JUDGE: | Bradley DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY – OTHER CASES – where appellant convicted after trial of possessing tainted property – where appellant given leave to adduce new evidence – whether appeal should be allowed CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – OTHER MATTERS – where appellant pleaded guilty to contravening a direction or requirement at the conclusion of the trial – whether appellate court has jurisdiction to set aside the plea of guilty Justices Act 1886 (Qld), ss 222, 223 Criminal Proceeds Confiscation Act 2002 (Qld), s 252 McGee v McKeever; ex parte McGee [1995] 1 Qd R 623 |
COUNSEL: | Applicant appeared in person B Bray for the respondent |
SOLICITORS: | Applicant appeared in person Director of Public Prosecutions (Queensland) for the respondent |
HER HONOUR: Well, Mr Jackson, I do dismiss your appeal, but I'll give you now the reasons for that. So you can sit down.
On the 6th of September 2011 in the Ipswich Magistrates Court the appellant was convicted after a trial of an offence under the Criminal Proceeds Confiscation Act 2002, which I'll refer to as the Act, of possessing tainted property. He pleaded guilty to an offence of contravening a direction or requirement of police and he was fined a total of $300 for both offences and no convictions recorded.
The first offence relates to police finding a Road Closed Ahead traffic sign in the back of the appellant's vehicle on the 21st of January 2011. Section 252 of the Act, subsection (1) reads: "A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property. Maximum penalty 100 penalty units or two years imprisonment."
Subsection (2), "If a person is charged with an offence against this section it is a defence to the charge if the person satisfies the Court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity."
The appellant was represented by a solicitor at the trial in the Magistrates Court, but was not legally represented on his appeal. At the trial evidence was given by three police officers. On the evening of the 21st of January 2011 Senior Constable Bowen was involved in an operation to prevent looting after the devastating 2011 floods. He was conducting roving patrols in the Ipswich business district area. He was directed by radio to East Ipswich where he ultimately intercepted the appellant's four-wheel drive vehicle. He questioned the appellant about drink driving. When he spoke to the appellant he noticed a large road sign in the rear of the vehicle. He also saw a male passenger in the front of the vehicle.
Sergeant Whittet responded to a call for assistance by Senior Constable Bowen and attended at about 8.46 p.m. Later that evening Sergeant Whittet charged the appellant with a blood alcohol concentration drink driving charge, and he spoke to the appellant about the sign at the Ipswich Police Station. Sergeant Whittet made notes of the conversation in his official police notebook immediately after the appellant was released from the police station.
Sergeant Whittet's evidence as to the conversation he recorded was as follows. "I said, 'The road closed ahead sign'. And he said, 'It's mine.' I said, 'Where did you get it?' He said, 'I've had it for years. I'm Queensland Traditional painters.' I said, 'Where did you get it from?' He said, 'I don't remember.' I said, 'It's new, where did it come from?' And he said, 'I don't remember.' I said, 'Ipswich City Council employees said it was an Ipswich Water Board sign.' He said, 'No, it's mine.' I said, 'What was it doing in your car?' And he replied, 'I don't know.'"
Sergeant Whittet conceded the appellant was moderately affected by alcohol and what he said about the sign didn't make sense. Another police officer, Senior Constable Kirkman also gave evidence that he was called to the location where the appellant's vehicle had been intercepted and he saw the sign in the back of his vehicle. He also saw a sand bag with the sign. When the sign was taken out of the vehicle, he looked at it more closely and formed the opinion that it was fairly new. "It didn't look like it had been out in the weather to a great degree. It was fairly clean. The frame looked intact. There wasn't too much wear and tear on it and also the paint - again, it appeared quite new and quite reflective. It didn't look like it had been weathered."
The appellant's evidence in the trial was that he was intercepted a short distance from his home, close to where some council work was being carried out. His recollection of the interception and subsequent events was only vague. He did not remember the conversation about the sign with Sergeant Whittet and, ultimately, he denied that that conversation took place.
He said that he had had "some drinks" and prescription medication that evening. That consisted of anti-depressants, sleeping tablets the night before and pain killers and valium which he took for injuries received in motor vehicle accident.
He said that he found the sign on Mutdapilly Dip Road, a narrow dirt road, where it was laying flat on the road, about half an hour before he was intercepted by police. There was a sandbag attached to the sign. He couldn't drive around it so he picked it up and put it in his vehicle intending to hand it over to the council workers working near his home. He had no need for the sign and considered it a danger on the road.
In his appeal the appellant was given leave to adduce new evidence in particular the testimony of the person who was the passenger in his vehicle that night. The appellant also tendered, in his appeal, a map of Mutdapilly Dip Road which shows it leads off the Cunningham Highway and a series of photographs of the location in which he says he found the sign. In the photos Mutdapilly Dip Road appears as a narrow dirt road with grass and open bush on either side.
William Martin Reilly gave evidence that he was a friend of the appellant's and he was in the front passenger seat of the appellant's four-wheel drive when they went for a "social drive" on the evening of the 21st of January 2011. It was twilight at around 6.30 p.m. when they came across the sign on Mutdapilly Dip Road. He described the sign as a "hazard". They put the sign in the back of the appellant's vehicle with the intention of returning it to the council workshops near where the appellant lived.
Mr Reilly admitted he had been drinking from about 10.30 a.m. that day and that he was taking anti-depressants that day. Mr Reilly gave an explanation as to why he believed the police intercepted the appellant, involving squatters living in a flat owned by the appellant and the appellant driving his vehicle into some gates under the flat. This was apparently an explanation for the police behaving in a very hostile manner towards the appellant. However, none of this was raised in the trial or put to the police officers concerned and indeed it is of minimal relevance to the issues in dispute in relation to this offence.
In these circumstances I can give Mr Reilly's evidence in this regard no weight. Mr Reilly's evidence contradicted the appellant's in that he said that he and the appellant explained to police where they got the sign from when they were first questioned about it. Somewhat remarkably he said that he was unaware that the appellant had been picked up for drink driving and he said that he heard the appellant say to the police that they were returning the sign to the road crew. This does not accord with the appellant's own evidence.
The appellant is critical of the legal representation he had in the trial, however the transcript of the hearing indicates that he was competently and adequately represented during the hearing. The police officers were cross-examined and a no case submission put and his solicitor's final submission to the Magistrate were all appropriate and competent. The appellant's submission that he didn't understand the police prosecution questions when he was cross-examined in the trial is not supported by the transcript.
The appellant challenges Sergeant Whittet's police notes on the basis that his notebook, on the face of it, was not completed and handed in to his officer-in-charge until the 26th of August 2011, some seven months after the notes were apparently made. This challenge is misconceived. Sergeant Whittet's evidence was clearly that he made the notes shortly after speaking with the appellant and the date of his handing in the notebook has no bearing on that assertion whatsoever.
The appellant complains that there was no evidence of ownership of the sign. In order to prove the commission of an offence under Section 252(1) of the Act such evidence is not necessary. The appellant has referred the Court to the provisions of the Criminal Code relating to the offences of stealing and fraud. He is not, of course, charged with such offences. Similarly, the defences of honest claim of right and mistake of fact, and the provisions of Section 11 of the Criminal Code, which he also has referred to in his written submissions, are not raised on the evidence.
In his reasons for his decision the Magistrate described the appellant as a "most unreliable, unimpressive witness". He found that he could "put no weight whatsoever" on any of his evidence. He found the appellant argumentative, aggressive and evasive and said, "His demeanour was most unsatisfactory as far as being a reliable historian is concerned".
The Magistrate found that there was no evidence to support a defence under subsection (2) of Section 252 of the Act. Namely, that the appellant had no reasonable grounds for suspecting that the sign was tainted property. The Magistrate found each of the police officers to be honest and reliable witnesses. Plainly, these findings were open. In fact, they are the only conclusions the Magistrate could come to on the evidence before him.
Mr Reilly's evidence, given in the appeal, would have to have been highly persuasive and convincing to overcome the Magistrate's assessment of the lack of reliability of the appellant's evidence. However, Mr Reilly's evidence was not consistent with that of the appellant. He admitted to having been drinking most of that day and, in fact, his evidence was not particularly helpful to the appellant in that it contradicted the appellant’s version in crucial respects.
The approach to be taken by a finder of fact in relation to an offence of possession of tainted property is set out in the Queensland Court of Appeal decision of McGee v McKeever which is reported at 1995(1) Q R 623. And I quote from the reasons for Judgment of the Court; "It falls to the Court at the time of trial to determine objectively, on the basis of the facts proved at the time, whether it is satisfied beyond reasonable doubt that the property may reasonably be suspected of being stolen or unlawfully obtained."
That's the test to be applied when a Court considers whether it can be satisfied beyond reasonable doubt that the property in question may reasonably be suspected of being tainted property. The Magistrate at this case was referred to that authority and was clearly appraised of the requirements necessary to prove the charge. He also turned his mind to the defence provided in subsection (2) of Section 252 of the Act.
On an assessment of the whole of the evidence, including the evidence adduced in the appeal there can be no doubt that the road sign found to be in the possession of the appellant in the circumstances of this case may reasonably be suspected of being tainted property. I dismiss the appeal against the conviction for the charge of possession of tainted property.
The appellant, in his written submissions, sought to set aside his plea of guilty to the offence of contravening a direction or requirement of police. However, during the hearing he indicated that he did not wish to proceed with that aspect of his appeal. In any event, Section 222(2)(c) of the Justices Act provides, "If a defendant pleads guilty or admits the truth of a complaint a person may only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate".
In those circumstances any application to set aside his plea of guilty would have had to have been made to the Court before which it was made, that is the Magistrates Court. So, the whole of the appeal is dismissed.