Barlow v Queensland Police Service [2013] QDC 90

1-1 [2013] QDC 90 DISTRICT COURT APPELLATE JURISDICTION JUDGE ROBIN QC No 587 of 2012 GEOFFREY JAMES BARLOW Appellant and QUEENSLAND POLICE SERVICE Respondent SOUTHPORT ..DATE 04/04/2013 JUDGMENT CATCHWORDS Appeal against conviction for possession of tainted property - appellant gave no evidence at trial notwithstanding magistrate’s clear advice that he could not rely on argument as evidence- inappropriate to allow introduction of evidence in the appeal which was not available at the trial - appeal against conviction dismissed - appeal against imposition of a fine as a penalty allowed - community service orders made Justices Act 1886 s222, s229 Criminal Code s1, s433 Penalties & Sentences Act 1992, s48 -- 1 of 14 -- 1-2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This an appeal under section 222 of the Justices Act 1886 by Mr Barlow who was convicted by a Magistrate on the 9th of November 2012, although the Notice of Appeal says 8th of November 2012, of receiving tainted property. No conviction was recorded but a fine of $750 was imposed and an order for costs and witness expenses made against Mr Barlow. The appeal is against conviction and also against sentence, Mr Barlow volunteering that because of strained financial circumstances if the conviction is to remain, a community service order would be a preferable punishment; he's consented to such an order being made. The appeal came on two days ago on the initiative of the Registrar, Mr Barlow having failed to comply with the practice direction which requires the filing of a written outline of argument within a nominated time. Perhaps Mr Barlow was hard done by in that regard because his Notice of Appeal did come with a page containing eight dot points attached which raise a number of assertions in support of the appeal. The respondent made returnable, last Tuesday, an application under section 229 of the Act seeking to have the appeal struck out for want of prosecution. Mr Barlow turned up, so that it was clearly inappropriate for the court to accede to the respondent's application. Mr Barlow asked what he wished the court to do on that day, indicated, in effect, he would like -- 2 of 14 -- 1-3 1 10 20 30 40 50 60 the appeal allowed and the conviction set aside. He agreed to have the hearing of the appeal today, which involves an abridgement of the time of notice of an appeal hearing usually required. The court had other business last Tuesday which would have precluded considering the appeal on the merits then and there. In any event, the respondent's file has not been Mr Johnson's responsibility. He reasonably required time to get on top of it. Today we have an additional outline of argument from Mr Barlow which I hear has gone through a couple of drafts. I understand that pursuant to the court’s suggestion last Tuesday, Mr Johnson may have given some hints to Mr Barlow as to what the document would contain. The new one is an improvement on the predecessor I pause to note that all of the factual assertions [ ] made and those contained in the new outline of argument refer to matters which would have been well known to Mr Barlow on November the 9th last year and could have been put into evidence by him then. The tests for reception of fresh evidence are not satisfied in any respect. Mr Barlow has not shown that the interests of justice according to law would make it appropriate for the court to receive the additional evidence. Mr Johnson relied on an outline of argument which had been prepared some time ago in his office. He was granted leave to -- 3 of 14 -- 1-4 1 10 20 30 40 50 60 amend paragraph 55 to seek costs should the appeals be dismissed. Mr Barlow identified an error in paragraph 21 which referred to the owner of the tainted property, which was a wallet and contents such as driver's licence, credit cards and a health card. That ought to have referred to the owner of that property rather than to a police officer Tuffley. Was there another error? MR JOHNSON: Not that I can recall, your Honour. HIS HONOUR: That was the only one? MR JOHNSON: That was one about Wilkinson but that was explained in the transcript, your Honour. APPELLANT: Number 21, I've got there. HIS HONOUR: Yes, that's the one I'm correcting. APPELLANT: Yeah, the wallet was on the floor next to the bed. HIS HONOUR: All right. So, there was only that one correction made. MR JOHNSON: That's my recollection, your Honour. HIS HONOUR: Mr Johnson's supplementary outline of submissions----- APPELLANT: And there's a small little spelling error on number 41. HIS HONOUR: I'm not really worried about the spelling. APPELLANT: So, don't worry about it then. I won't bring it up. HIS HONOUR: Let me see. Yes, "themed". Yes, all right. The supplementary outline referred the court to the Queen v. Curlija [1967]SASR 1, which provides a helpful test of possession. The case is authority for the proposition that property is received when the accused, having de facto control of it, makes up his mind to exercise that control and, "that although the burden was on the Prosecution to prove guilty -- 4 of 14 -- 1-5 1 10 20 30 40 50 60 knowledge, that burden would, in the circumstances, be discharged if the accused could not produce a reasonable account of his possession of the stolen property." The Prosecution came under section 433 of the Criminal Code and the definition of possession for its purposes in section 1 confirms that it "includes having under control in any place whatever, whether for the use of benefit of the person of whom the term is used or of another person, and although another person has the actual possession or custody of the thing in question." The evidence of two police officers who corroborated each other was that they obtained from other premises of Mr Barlow's a set of keys which gave access to a bedroom in premises at Miami, premises where there were other people, although they're not shown or even alleged to have had use of or access to the bedroom. In that bedroom were personal documents of Mr Barlow's located on a dresser. Mr Barlow's documents erroneously seize on that circumstance to claim that there was inconsistency between the two police officers as to where the allegedly tainted property was found which was on the floor just to the left of the bed, according to both of them, that being Mr Dring's property. He gave evidence that he had mislaid his wallet while visiting a nightclub on the Gold Coast on a date he couldn't precisely recall, a year or so before 18th of April 2012 when the police found the tainted property at Miami. -- 5 of 14 -- 1-6 1 10 20 30 40 50 60 The Prosecution case would have been stronger if that year had not elapsed but it remains, in my view, a strong, indeed, overwhelming case given the extent of evidence that is available. This court has the responsibility of conducting a rehearing on that evidence and forming its own view. It's not sufficient for this court to do no more than determine that no error appears in the reasons of the primary Court. That's clear from Fox v. Percy[2003] 214 CLR 118 and cases in our Court of Appeal such as Parsons v. Raby[2007] QCA 98. No explanation whatever was given by Mr Barlow as to how the tainted property came to be in his bedroom. His written submissions don't take the matter much further although the latest ones assert a fact not in evidence that he had "only moved into the room a couple of weeks when the search was carried out" against a background of the wallet having been missing for a long time. -- 6 of 14 -- 1-7 1 10 20 30 40 50 60 The written submissions assert Mr Barlow didn't know how the wallet came to be in the room, that it was in a messy condition when he moved into it and he hadn't cleaned it out or organised his gear. All of these are propositions that could have been contained in evidence. The reasonable doubt Mr Barlow suggests the court should have is whether some previous occupant of the room left the tainted property there; he is suggesting that he did not notice it. Mr Barlow submits that his health was bad on the day of the hearing but the transcript shows he is in error in the second of his dot points and his later submission in asserting that he'd asked the Magistrate to adjourn the matter, denial of adjournment being the "first miscarriage of justice." The transcript, unfortunately, has not been available to Mr Barlow for financial reasons, he having no ability to pay for it, he says. He's been constrained to rely on his recollection of what occurred before the Magistrate. It's not surprising that he may have made errors. The transcript was made available to him on loan from the court and the matter was stood down for sufficient time to enable Mr Barlow to read it so he would understand what was going on at the appeal hearing and what had gone on at the trial. The transcript shows that the Magistrate gave a clear explanation to Mr Barlow of how he ought to proceed following his pleading not guilty and enquired whether Mr Barlow had any questions. He said, "Only that I'm really tired from an -- 7 of 14 -- 1-8 1 10 20 30 40 50 60 assessment at the moment but I'm happy to try to get this wrapped up today if it helps your Honour, but I am a bit not the best of health today." He said, obviously in reference to his version, "Hopefully, I'm awake enough to put that version to" - prosecution witnesses. The questions he asked of Mr Dring and the two police witnesses did not cast any doubt on or even challenge their evidence. When the Prosecutor closed the Prosecution case, the following exchange occurred between the Magistrate and Mr Barlow, and I'd like it set out in these reasons, it's from the transcript page 15, line 45 to page 17, line 28. "BENCH: Thank you. Now, Mr Barlow, you have an opportunity to give evidence yourself, to call witnesses or to make a statement asking me to strike out the charge on the basis that there's not sufficient evidence to justify a conviction. The matter is one for you, if you wish to give evidence yourself then you will be subject to cross-examination in the same way that you've been able to cross-examine the - the prosecution witnesses. So what is it that you now wish to do? DEFENDANT: I wish you to strike out the matter, your Honour. BENCH: Well, then you don't propose to give any evidence yourself; is that right? DEFENDANT: I'm - not as in called upon. BENCH: Well, it's purely----- DEFENDANT: I guess----- BENCH: -----a matter for you. You don't have to give evidence if you don't want to. But please bear in mind that anything you say from the bar table can only be a matter of argument. You can't put facts, for example, before me and expect me to take notice of them because they're not under oath. DEFENDANT: Okay. So I need to go----- BENCH: If you want to put some factual scenario before me to consider then you should be giving evidence. If you were simply going to make an argument on a point of law, for -- 8 of 14 -- 1-9 1 10 20 30 40 50 60 example, [that] there's not sufficient evidence to justify a conviction then you don't need to give any evidence, you can simply make that submission from the bar table. DEFENDANT: That's my submission, your Honour. BENCH: All right. Well, would you like to address me on why you say there's insufficient evidence to justify a conviction. DEFENDANT: All right. Your Honour, I'm unsure about how the wallet or cards got in that room. BENCH: Well that's a factual matter, Mr Barlow, you see, if - if you're going to now put to me some sort of scenario that you're unaware of how the cards got into the - into the bedroom or the wallet got into the bedroom, you should be saying that on oath because that is a factual matter, that is not a----- DEFENDANT: Okay. BENCH: -----a legal matter, a matter of law. DEFENDANT: Okay. Sorry, your Honour, I didn't know that. BENCH: That's all right. DEFENDANT: What about this, if I say I want nothing to do with this wallet or cards, I wish the cards and wallet had been returned to it's rightful owner, is that----- BENCH: Well, that doesn't really help you insofar as the offence is concerned. That might help on a - on a plea of - on mitigation if and when you are found guilty of the offence but it certainly is not a relevant issue insofar as proving the offence against you is concerned. DEFENDANT: Well, I guess I say nothing and see what happens. BENCH: I beg your pardon. DEFENDANT: I - I have nothing to say then. BENCH: You've got nothing to say. All right. DEFENDANT: Well----- BENCH: So do you want to make any submission to me about the prosecution case? DEFENDANT: There seems to be well - one thing about dates unsure and time of night, items missing from the room, unsureness of that. Items in the room not belonging----- BENCH: I'm sorry, I don’t follow you. I understand what you say about the dates being uncertain but what - what's this about items being missing in the room? I've heard no evidence about any items missing. -- 9 of 14 -- 1-10 1 10 20 30 40 50 60 DEFENDANT: Okay. Well then I'll strike out that, I won't say that then. BENCH: All right. Is that all you wish to say? DEFENDANT: Yep." In my opinion, his Honour could hardly have made it more clear to Mr Barlow that he ought to give evidence if he wanted factual contentions placed before the Magistrate for consideration. There has to be an end to litigation, which observation does not gainsay that in an appropriate case this court might grant an indulgence to Mr Barlow, for example, if it appeared he was truly incapable on the day for medical reasons of presenting his case effectively. The Notice of Appeal was accompanied by a medical certificate certifying that the doctor examined Mr Barlow on the 13th of November, that he was suffering from a medical condition and would be unfit due to stress and anxiety for the next two weeks approximately. That certificate may have had something to do with University obligations Mr Barlow had; it is on University Letterhead. The difficulty is that the date of the examination by the doctor is four days after the hearing. Reminded of that today, Mr Barlow suggested he would be able to get other certificates that might cover the relevant time. Those weren't offered today. Allowing an indulgence of that kind would, in my view, bring the system into disrepute. The Magistrate's alleged failure to grant a request for -- 10 of 14 -- 1-11 1 10 20 30 40 50 60 adjournment is obviously not established. The circumstances, in my view, are ones where the Prosecution case was simply unanswered. The assertions made from the Bar table before Magistrate and indeed, last Tuesday and today don't, in my view, cast any doubt on the Prosecution case which was strong enough to satisfy the criminal onus of proof having regard to the way in which possession is to be understood. I do not place any weight on other assertions made in the written outlines to the effect that Mr Barlow had been told by police officers that the Prosecution should have been dismissed, the implication being that it was a weak case. As these cases go, it seems to me it was strong. The conviction therefore should remain. In respect of the sentence, it is conceded that the Magistrate did not as he was enjoined to do by section 48 of the Penalties and Sentences Act take into account financial circumstances of the offender and the nature of the burden payment of the fine would constitute. The fine seems to be modest. The Magistrate noted that there were no previous offences of a similar kind. I am prepared, in the circumstances, to vacate the fine but not the court costs and witnesses expenses. When I last was concerned with such matters it was possible for an offender to obtain administratively from the court a fine option order. I understand that may no longer be the case and that recourse is -- 11 of 14 -- 1-12 1 10 20 30 40 50 60 available instead to SPER. So, the fine is vacated and instead of that, as a punishment, Mr Barlow is ordered to perform 50 hours of community service, which he'll have 12 months to do. As noted, he's consented to that. Given the lateness of the respondent's request for costs, which indeed runs contrary to what had been prepared by an officer on the 25th of February 2013 and what I infer was handed to Mr Barlow this morning, there won't be an order as to costs. So, the appeal against conviction is dismissed. The appeal against sentence is allowed in the way indicated above. MR JOHNSON: Just wondering if you would formally address Mr Barlow in relation to those probation orders where you go through the normal----- HIS HONOUR: Well----- MR JOHNSON: He has consented. He's also - you've got to order a summons recorded. HIS HONOUR: Have you had a community service order ever before, Mr Barlow? APPELLANT: Yes, your Honour, for parking and that. I did some up in Coolum once, worked on some sand dunes. HIS HONOUR: I - do I have to fix a time, do I, to report----- MR JOHNSON: Yes, a time, yes, yes, time and just a - and a report. HIS HONOUR: Yes, all right. So, which community corrections office should you report to? What----- APPELLANT: There's one here at Burleigh. HIS HONOUR: Is that the convenient one for you? Does that suit you? MR JOHNSON: Mr Barlow lives at Runcorn, your Honour, so probably some place, south Brisbane or something may be more appropriate. -- 12 of 14 -- 1-13 1 10 20 30 40 50 60 APPELLANT: I'm currently living - staying at the university for my studies. MR JOHNSON: Probably Southport then, maybe. HIS HONOUR: Well, do you know where the one at Southport is? Do you know where the one at Burleigh is? APPELLANT: I know where the one at Burleigh is. HIS HONOUR: All right. Well, that will do. There is one at Burleigh; isn't there? MR JOHNSON: Yes, there is one at Burleigh Heads. HIS HONOUR: All right. Well, I don't know if Mr Barlow requires any explanation of community service orders. You’ve done them before. No doubt you know the work must be done according the directions of the community corrections officers supervising it. While the order remains incomplete there must be no further offending because that on its own would constitute a breach and subject the offender to the risk of further punishment. I require Mr Barlow to report for the purposes of the order to the Community Corrections office at Burleigh, being the one that he's nominated, by the close of business tomorrow, the 5th of April. Can you do that? APPELLANT: I can do that. HIS HONOUR: Yes, all right. MR JOHNSON: Yes, that would be appropriate, your Honour. HIS HONOUR: Thanks, Mr Johnson. MR JOHNSON: Thank you, your Honour. HIS HONOUR: Now, can we have the transcript back. MR JOHNSON: Thank you, your Honour. APPELLANT: Only one last thing. -- 13 of 14 -- 1-14 1 10 20 30 40 50 60 HIS HONOUR: Yes. APPELLANT: This fine from last time I think's already been put on an account to me from SPER so how would that be removed? HIS HONOUR: Well, I don't know what happens. MR JOHNSON: I say it would have been suspended pending the appeal, so on notification----- HIS HONOUR: Does SPER know there's an appeal? APPELLANT: I'm not sure. HIS HONOUR: Are you in contact with SPER? APPELLANT: Well, they're not that easy to talk to. They send me letters just threatening to take my licence off me and wanting money off me. That's all they do. HIS HONOUR: But if you've got their address you can send them a letter saying----- APPELLANT: Get a copy of this outcome. HIS HONOUR: -----saying the appeal against the fine was allowed. MR JOHNSON: Successful and therefore [indistinct] amend, yes. APPELLANT: I'll try to write them something. Yeah, I should be able to write them something. HIS HONOUR: And if they want to check with the Court I'm sure they can. Well, maybe I can direct the Registrar to send a copy of the order----- MR JOHNSON: Order to SPER. HIS HONOUR: -----and the reasons to SPER. APPELLANT: Should be right. MR JOHNSON: Thank you, your Honour. APPELLANT: Thank you, your Honour. HIS HONOUR: Thank you. ----- -- 14 of 14 --