Palmer v Queensland Police Service
[2024] QDC 67
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- Unreported Judgment
- Palmer v Queensland Police Service[2024] QDC 67
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Palmer v Queensland Police Service[2024] QDC 67
Palmer v Queensland Police Service[2024] QDC 67
DISTRICT COURT OF QUEENSLAND
CITATION: | Palmer v Queensland Police Service [2024] QDC 67 |
PARTIES: | PALMER, Stuart William (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | 379/24 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to s 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Magistrates Court at Caboolture |
DELIVERED ON: | 10 May 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 7 May 2024 |
JUDGES: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AGAINST CONVICTION – where the appellant was charged with possession of dangerous drugs, evading police and disqualified driving – whether convictions were unreasonable or unsafe – where there was a circumstantial case against the appellant that he was the driver CRIMINAL LAW – APPEAL AGAINST SENTENCE – where the Magistrate sentenced the appellant to a substantial fine – where the appellant had 260 days pre-sentence custody – where the appellant has significant mental health conditions attributable to sexual abuse of him as a child – where despite his criminal history a probation order was appropriate Justices Act 1886 (Qld) ss 222, 223 Penalties and Sentences Act 1992 (Qld) ss 92, 93, 159A Penalties and Sentences (Penalty Unit Value) Amendment Regulation 2022 (Qld) Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521, applied Domican v R [1992] HCA 13; (1992) 173 CLR 555, applied R v Palmer [2023] QCA 118, cited Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 90 ALJR 6, applied |
COUNSEL: | Self-represented defendant Ms E. Hanlon for the respondent |
SOLICITORS: | Self- represented defendant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]Pursuant to section 222 of the Justices Act 1886 (Qld) the appellant appeals the convictions on 16 May 2023 of three charges namely evading police, driving without a licence whilst disqualified and possessing a dangerous drug.
- [2]In summary it was alleged Mr Palmer in an intoxicated state drove a vehicle away from police at about 1215am on 31 July 2022. He was disqualified at the time. He was later searched by police when walking along a road in an area nearby and he had a small quantity of methylamphetamine in his possession.
- [3]He was sentenced to a fine of $7150 with convictions recorded. He also appeals this sentence.
- [4]
Evidence
The evading police evidence- 1215am
- [5]Constable Tayte Helliwell gave evidence that on 31 July 2022 just after midnight police were conducting patrols in a police vehicle. They saw a silver Commodore, 272-EXE, parked outside of an address at 46 Caboolture Road. The female got into the passenger side. A male person (alleged to be the appellant) approached the driver side of the vehicle. He seemed very unsteady on his feet and struggled to open the door. He got into the driver seat. He was about six foot tall with shoulder length black hair and was wearing a red shirt with dark pants. The vehicle started and headed west on Caboolture River Road. They started following the car to intercept it. The car was swerving on the road. The police vehicle was behind it and activated its lights and sirens to indicate to the vehicle to pull over. It then accelerated heavily away and continued west.
- [6]In cross-examination, the witness said the reason they were watching this particular house was because it was a known address for drug offenders. It was night time and they were 50 metres away from where the car door was open.
- [7]In re-examination, the witness said there was street lights and there was a clear unobstructed view of the car.
- [8]Officer Riley Kajewski gave evidence that the vehicle in which he and Helliwell were travelling was fitted with a dashcam. There was no footage of the actual event as it was recorded over. In cross-examination, he said he did not know of any association between the appellant and the suspect house. He said they had a clear view of the vehicle which was about 20m away.
The house evidence- 6am
- [9]Sam Stewart gave evidence that on 31 July 2022, he was at home and woke up a little before 6am. He saw that there was someone asleep on a couch at the back of his house. Someone else rang the police and Mr Stewart took a photograph of this person (the appellant). That man was asked to leave, climbed the fence and left. The house was in Rocksberg, near Caboolture. The photograph was tendered as Exhibit 1. The photograph clearly shows a picture of a man with long hair with a red shirt on with black pants and black shoes asleep on a couch.
- [10]Constable Kihyan Smith gave evidence that on 31 July 2022 he was working a 6am until 2pm shift at the Caboolture Station. He was rostered with Constable Deborah Hill. They were tasked to the trespass job at Rocksberg and came to the corner of Bruce Court and West James Road. There was a silver sedan parked on the left-hand side of the road opposite a house on the right with its doors open. He found a mobile phone and knife on the footwell of the driver’s side. It can be inferred this is the same car seen by Officer Helliwell as the registration number is similar.
- [11]Officer Hill went to the back of the property because the owner said a female was asleep on the back porch. Bodycam footage was operated. Officer Hill interviewed the female Crystal Rogers concerning these matters. The footage from both Body cameras was marked as Exhibit 6B and 6C.
- [12]In cross-examination, the witness said that he moved a knife to the boot of the police vehicle and the mobile phone from the footwell of the vehicle to the front seat.
- [13]Constable Hill gave evidence that she was working with Constable Smith. She attended the West James Road job at Rocksberg and saw the silver Commodore parked on the grass. Crystal Rogers was located on the back porch sleeping. She voluntarily came back to the Caboolture Police Station. She was also wearing bodycam footage. In cross-examination she said there was nothing in the vehicle that identified Stewart William Palmer.
- [14]During the appeal I watched the body cam footage on the hearing of the appeal. Rogers identifies a man called John as the driver of the car.
Events at 836am
- [15]Constable Matthew Millichap gave evidence that he was rostered on 31 July 2022 with Constable Anderson. At 7.30am he received some information from police communications concerning persons who had been sleeping at two different addresses in that vicinity. He received updates that a male person had left an address at West James Road and was walking up Caboolture River Road and he received a description of that person namely a large built male with long black hair, wearing a red shirt and black pants. They drove along the road and he observed a male with long black hair, a red shirt and black pants sitting on the side of Caboolture River Road at Rocksberg.
- [16]This was the appellant. The bodycam was activated and the conversations were recorded. There was a pat down of Mr Palmer and some clip seal bags (with drugs) were found in his left hip pocket. They went back to the holding cells at Caboolture Police Station and he received the photograph of the sleeping male which was the same male as they had arrested. The owner of the vehicle was Dimitrios Miliotis. He said his vehicle had been stolen. The stolen vehicle was examined and during the search various items in the name of Stewart William Palmer were located including a prison release document and a mobile phone with the contact name Stewart Palmer.
- [17]These photos were tendered into evidence (exhibit 6) and the photo of the car tendered into evidence matched the one which was followed by the police and evaded the police.
- [18]Preliminary examinations of the drugs in the bag showed that it was methylamphetamine. A certificate in that regard was tendered. Certificate was tendered showing that Mr Palmer was not licenced and in fact was disqualified at the relevant time. The bodycam footage was tendered as Exhibit 6A.
- [19]In cross-examination, he said that they were looking for a male with a red shirt, black pants and long black hair. Mr Palmer matched that description when they saw him sitting on the roadside. It was put to the officer that no drug bags were found in his possession. That does not appear to have been accepted. He also accepted he found the prison document on the front seat contrary to his earlier evidence it was on the back seat.
- [20]Mr Palmer was found asleep about 200m from where the car was located.
- [21]In re-examination the officer said that Caboolture River Road becomes a dead end.
- [22]I also watched this body cam footage. I form the view that the drugs were clearly found in the Appellant’s possession.
Crystal Rogers
- [23]Crystal Rogers was first called by video link. She gave evidence she was born in 1983. She was unable to assist the Court with what she was doing on 31 July 2022. She was using a lot of drugs at the time. She said she got a lift from a random bloke. She didn’t know his name. She said she didn’t want to give evidence. Ultimately, it was agreed that the witness should be produced in person.
- [24]On day two of the trial, the evidence of Crystal Lee Rogers resumed. She said she was probably on drugs on 31 July 2022. She didn’t remember anything about the date except vaguely. She said she got a lift from a real tall skinny dude with a skinny face and long hair and glasses. She suffers bad PTSD. She didn’t remember what the two of them did. She was high on drugs. She was parole at the time. In cross-examination, she said that the man she met was John.
- [25]The appellant elected to neither give nor call evidence.
Submissions
- [26]The prosecution submitted that the elements of each charge had been proved beyond a reasonable doubt. It was submitted that it was a circumstantial case that Mr Palmer was the driver at the relevant time. It was submitted that the clothing in the photograph was consistent with which Mr Palmer wore. It was submitted that objects taken from the car related to Mr Palmer. It was Mr Palmer asleep on the couch. The car was located nearby. It was an isolated area in Rocksberg. In all of the circumstances, the only logical inference was he was the driver. As to the drug possession, it was clear the police found the drugs in his possession.
- [27]The defence submitted that the prosecution has not proved knowledge or control concerning the drugs. He claimed that the police had planted the drugs on him. He submitted that there was insufficient evidence of identification of him as the driver.
- [28]As regards to the disqualified driving and the evading police, the Magistrate accepted the police evidence. He rejected the evidence of Ms Rogers that it was not the defendant. He found her to be a reluctant witness.
Decision
- [29]The Magistrate accurately summarised the evidence.
- [30]The Magistrate referred to a number of facts:
- The description of the person entering the vehicle immediately before the evading offence;
- The description was similar to the description given by Rogers;
- It was consistent with a photograph taken of the defendant on the lounge;
- The defendant was later located by police at Caboolture River Road and one could observe he was strikingly similar to the person entering the vehicle with respect to the evade and attempted intercept.
- [31]The Magistrate in the result found it was a circumstantial case to answer. He found that the appellant was asleep on the lounge area and he was located shortly afterwards down the road by police. When one bears in mind all of the descriptions, the prosecution proved beyond reasonable doubt that the appellant was the driver of the vehicle.
- [32]In the circumstances, he was found guilty of those two charges. With respect to the drug charge, the Magistrate accepted the evidence of the police and found the appellant guilty of that charge.
Submissions
- [33]The appellant in his outline of submissions submits that there was no evidence to support the allegations against him. He submits that Crystal Rogers supported the contention that he was not the driver of the vehicle which was owned by another person. As regards to the drug charge, he submits that the prosecution failed to prove knowledge and control and he was in receipt of second-hand clothing at the time.
- [34]In oral submissions concerning the drug charge Mr Palmer repeated his contention there was no proof of continuity. He also submitted that the clothes were second hand and knowledge and control could not be proved.
- [35]With respect to the other two charges he submitted that the evidence of identification was slight. He also submitted that there was a lack of continuity as to the prison document and the mobile phone. He submits that Ms Rogers’ evidence could not be excluded.
- [36]Mr Palmer also relied on exhibit 10 alleging he was not capable of running the trial. Since the hearing was adjourned Mr Palmer filed more submissions (Exhibit 15). I have taken these into account in reaching my decision.
- [37]The respondent on the other hand submits that the convictions are valid. As to the drug charge the video evidence shows it was located in the appellant’s possession and knowledge and control could be inferred. Continuity was established.
- [38]As to the other two charges, the Magistrate was entitled to reject Ms Rogers’ evidence. Otherwise there was a circumstantial case as follows:
- The description of the driver in a red shirt and black pants in the area.
- Mr Palmer asleep at Rocksberg wearing similar clothing.
- The car found at Rocksberg with items associated with Mr. Palmer.
- Mr Palmer was located in the area with similar clothes on by police.
Discussion
- [39]In my opinion, the Magistrate was correct in convicting Mr Palmer.
- [40]It is perfectly understandable that the Magistrate rejected the evidence of Ms Rogers as being unreliable. She was uncooperative and clearly was affected by drugs at the time and she said her memory was not good. She was not an impressive witness. Her evidence could be put to one side. This means that the possibility that another person called “John” was the driver could be excluded.
- [41]Putting her evidence to one side it was still for the prosecution to prove its case.
- [42]There was a circumstantial case and it was for the prosecution to prove that guilt was the only rational inference available. It had to also exclude any reasonable possibility consistent with innocence.[3]
- [43]There were a number of circumstances pointing towards guilt.
- [44]It is clear that it was Mr Palmer sleeping on the couch at the house at Rocksberg at about 6am on 31 July 2022. The car which had evaded police was not far away (200 metres) with its doors open. Ms Rogers, who was a passenger in that car, was also nearby asleep. Items connecting Mr Palmer with that vehicle were found namely a prison form and a mobile phone. In this regard the officer said he found the prison form in a bag on the back seat. In his statement he said it was the front seat. I think he was mistaken in his statement after having seen the video evidence. The fact is the prison form in the name of Mr Palmer was found in the car.
- [45]Mr Palmer was found later that morning walking up the road with the same clothing on as that as the man in the photograph.
- [46]One has to be careful as to the identification evidence of the driver bearing mind it was made at night[4] but as the officer said there were street lights and an unobstructed view. But the officers do not lie and claim they saw Mr Palmer. Officer Helliwell simply provides a description of the person.
- [47]So taking into account the dangers of identification evidence I accept Officer Helliwell as credible and reliable. Her description of the driver is remarkably consistent with the sleeping man in the photograph and with Mr Palmer when he was located by Officer Millichap.
- [48]In all of the circumstances, the only rational conclusion open was that Mr Palmer was the driver of the car. There is no reasonable hypothesis consistent with innocence bearing in mind his property was found in the car.
- [49]On the issue of continuity there was no evidence that the police planted Mr Palmer’s mobile phone and/or the prison form in the car. On the evidence the phone was found at the scene, the car was taken to the police holding yard and then searched and the phone and prison form were located. This was a case where the police gave direct evidence of finding the phone and the prison form in the car. The exhibits themselves were not tendered so continuity did not loom large as an issue.
- [50]The other elements of each charge were proved beyond reasonable doubt. It could clearly be inferred that the driver was evading the police and it was established that Mr Palmer was disqualified from holding a driver license.
- [51]As to the drugs charge the drugs were in the possession of the appellant. Knowledge and control could clearly be inferred. Continuity was proved by the running sheet and the analyst’s certificate. There was no evidence the police planted the drugs and indeed I could not see any evidence on the video suggesting that the police planted the drugs.
- [52]I conclude the elements of that charge had been proved also.
- [53]I conclude that the convictions were not unreasonable or unsafe.
- [54]The final issue to be considered is Mr Palmer sought to tender exhibit 10 on the issue of his conviction and on the issue of his ability to run a trial. The crown objected to the evidence except on the issue of sentence. I note that Dr Foxcroft in a report dated 16 July 2020 found that despite a mild acquired brain injury[5] the appellant was capable of providing instructions and had high levels of understanding of legal representation and legal instructions. I might say this is consistent with my assessment of him in court. He was capable of managing settlement sums.
- [55]I would admit the evidence but find that no miscarriage of justice has been established based on the material tendered.
- [56]I would dismiss the appeal against conviction.
Sentence
- [57]The appellant was sentenced to a fine of $7,150 and disqualified from holding or obtaining a driver licence for the period of two years.
- [58]The appellant submits that the sentence was manifestly excessive given the fact he was held in custody from 30 July 2022 until 17 April 2023.
- [59]The respondent concedes this given the pre-sentence custody certificate shows that the appellant had served 260 days in pre-sentence custody from 31 July 2022 until 17 April 2023. In light of this the respondent concedes the sentence is manifestly excessive.
- [60]Mr Palmer had been sentenced on 22 June 2022 in the Brisbane District Court to three years imprisonment with a parole release date as at 27 June 2022. An appeal against this sentence was allowed by the Court of Appeal on 9 February 2023[6] and in lieu thereof a sentence of three years imprisonment with a suspension after 570 days was made. The time declared included 2 March 2020 until 21 December 2020, 17 March 2020 until 9 April 2021, 13 June 2021 until 15 October 2021 and 16 February 2022 until 21 June 2022. Accordingly, the 260 days pre-sentence custody was entirely referable to the offences before the Court.
- [61]Mr Palmer has an unenviable criminal history and traffic history.
- [62]Having said this exhibit 10 contained medical reports tendered on the issue of sentence in this court.
- [63]Janelle Bardsley a psychologist in a report dated 14 June 2022 noted the following;
- Mr Palmer was above average academically at school.
- He most likely suffered ADHD/ASD.
- He started using drugs at a young age.
- He was sexually assaulted as a 15-year-old at the youth detention centre by an officer working there.
- He as a result has severe and chronic PTSD.
- He has engaged in some psychological treatment.
- He has significant deficiencies with social responsiveness.
- His inability to manage his PTSD symptoms has led to drug abuse.
- It is recommended he apply for NDIS assistance and he undergo long term psychological intervention.
- [64]In an email dated 29 April 2024, Ms Bardsley confirms that the appellant is motivated to undergo therapy and has been an active participant in sessions. His mental health has stabilised.
- [65]Dr Foxcroft a psychiatrist has provided a report dated 16 July 2020. This notes:
- He fulfills the criteria for PTSD.
- There is also a polysubstance abuse disorder and alcohol use disorder.
- He has a poor prognosis.
- He should receive long term counselling.
- [66]I consider Mr Palmer has been significantly punished already bearing in mind he spent 260 days in pre-sentence custody.
- [67]In my view despite Mr Palmer’s lengthy history, his rehabilitation is an important matter to be considered. In my view, a probation order is the appropriate way to achieve this, bearing mind that on the disqualified driving charge and the possession charge a sentence of imprisonment is one of last resort. It will be for the minimum period, bearing in mind the 260 days pre-sentence custody. Of course Mr Palmer must receive either a minimum of 50 days imprisonment on the evade police charge or a fine of 50 penalty units.[7] In light of his custodial situation I consider 50 days imprisonment is appropriate with a declaration that he has served that time.
- [68]Presently Mr Palmer is on bail for all outstanding matters. Despite this the parole board has cancelled his parole. His full-time sentence finishes in July 2024. It would be a great shame if he did not commence probation so that he is supervised in the community and continues to receive psychological treatment before his sentence is complete.
- [69]I direct a copy of this judgment be forwarded to the Parole Board for its consideration.
Orders
- [70]For the reasons given the orders are as follows:
- The appeal against conviction is dismissed.
- The appeal against sentence is allowed.
- The fine imposed is set aside.
- Convictions are recorded on each count.
- The appellant is sentenced to 50 days imprisonment on the evading police charge.
- It is declared pursuant to section 159A of the Penalties and Sentences Act 1992 (Qld) the appellant has served 260 days in pre-sentence custody namely 31 July 2022 until 17 April 2023. I declare 50 days of this as time already served. Those dates are 31 July 2022 until 19 September 2022.
- On the disqualified driving charge and the drug possession charge, subject to his consent, pursuant to section 92(1)(a) of the Penalties and sentences Act 1992 (Qld) I order the appellant be released under the supervision of an authorised corrective services officer for a period of 6 months and he must comply with the requirements of section 93(1) of the Penalties and sentences Act 1992 (Qld) and he must report within 24 hours of his release from custody to an authorised corrective services officer. Additionally he is to submit to such medical, psychiatric or psychological treatment as directed by an authorised corrective services officer.
- The disqualification periods are not disturbed except it is ordered that the periods are concurrent.
- I direct a copy of the reports of Janelle Bardsley dated 14 June 2022 and Dr Malcolm Foxcroft dated 16 July 2020 be forwarded to corrective services for the appellant’s ongoing management whilst on probation.
- I direct a copy of this judgment be forwarded to the Parole Board for its consideration.
Footnotes
[1] Section 223 of the Justices Act 1886 (Qld).
[2]Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; 90 ALJR 679 at [43].
[3]Chamberlain v R [1984] HCA 7; (1984) 153 CLR 521.
[4]Domican v R [1992] HCA 13; (1992) 173 CLR 555.
[5] This apparently relates to a motor vehicle accident in 1995.
[6]R v Palmer [2023] QCA 118.
[7] As at July 2022 a penalty unit was $143.75- Penalties and Sentences (Penalty Unit Value) Amendment Regulation 2022 (Qld). The total was $7,187.50.