Palmans v The Queen - [2021] NSWDC 467

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Palmans v R [2021] NSWDC 467
Hearing dates: 07-08 June 2021
Date of orders: 08 June 2021
Decision date: 08 June 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Appeal against conviction of offence under Firearms Act 1996 s7(1) dismissed.
Appeal against conviction for custody of a knife (a box cutter) contrary to Summary Offences Act 1988 s 11C(1) set aside.
Appeal against severity of sentence withdrawn.

Catchwords:
Crime – Appeal from Local Court – Whether imitation firearm was produced and identified as a children’s toy – Produced as a children’s toy in Germany but not identified as a children’s toy – Whether appellant had a reasonable excuse for possession of a box cutter in the early hours of a Tuesday morning in Glebe.
Evidence – Admissibility of statements of 2 witnesses in a criminal proceeding – Whether witnesses (mother and grandmother of appellant) unavailable to give evidence.

Legislation Cited:
Evidence Act 1995
Firearms Act 1996
Summary Offences Act 1988

Cases Cited:
Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981
Darestani v The Queen [2019] NSWCCA 248

Category: Principal judgment
Parties: Appellant – George Palmans
Crown – Regina
Representation: Appellant – T. Kent of Counsel instructed by F. Mersal (Mersal & Associates)
Crown – J. Menzies, sol. (DPP)

File Number(s): 2018/00315181
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

09 December 2020

Before:

Stewart LCM

File Number(s):

2018/00315181

Judgment

HIS HONOUR: This is an appeal against convictions recorded by Stewart LCM sitting in the Central Local Court on 9 December 2020. His Honour found the appellant guilty of an offence pursuant to s 7(1), of the Firearms Act 1996. The formal allegation was that on 16 December 2018 at Glebe he did possess a prohibited pistol, namely, a 22 centimetre silver and black imitation pistol, not being authorised to do so by licence or permit. The second offence, which his Honour found proved beyond reasonable doubt, was that on 16 October 2018 at Glebe he did without reasonable excuse have in his custody a knife in a public place, namely, Lyndhurst Street, Glebe. The knife was in fact a box cutter.

Background

On Monday 15 October 2018 Constable Bradley Fisher and Constable Lindsay Sculley were rostered on duty at the Glebe Police Station commencing at 3pm for a 12 hour shift. They were assigned a marked police vehicle given the number LE35. At about 12.30am on Tuesday 16 October 2018 those officers were conducting patrols along Darling Street, Glebe. Constable Fisher observed a man, who is the current appellant, walking along the middle of the road in Lyndhurst Street near its intersection with Darling Street. According to Constable Fisher's statement, he was carrying a green canvas bag. The two police officers pulled their vehicle over to the side of a road and then proceeded to speak with the appellant.
It is common…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palmans v The Queen

Details

AGLC: Palmans v The Queen [2021] NSWDC 467
Case: [2021] NSWDC 467
Decision Date: 08 June 2021

CaseChat Overview and Summary

The appellant, Palmans, was convicted by the Local Court of possessing an imitation firearm and a box cutter in contravention of the Firearms Act 1996 and the Summary Offences Act 1988 respectively. The appeal against these convictions and the severity of the sentence was brought before the court. The primary issues were whether the imitation firearm was identified as a children’s toy and whether the appellant had a reasonable excuse for possessing a box cutter at the early hours of the morning.

The court examined the nature of the imitation firearm and whether it was identified as a children’s toy. The evidence suggested that while the item was produced as a children’s toy in Germany, it was not identified as such when found. The court also considered the circumstances surrounding the possession of the box cutter, focusing on whether the appellant had a reasonable excuse for carrying it in the early hours. The testimonies of the appellant’s mother and grandmother, who were unavailable to give evidence, were scrutinised for admissibility.

In its reasoning, the court found that the imitation firearm did not constitute a children’s toy as it was not identified as such at the time of the offence. Therefore, the conviction under the Firearms Act was upheld. However, the court concluded that the possession of the box cutter was reasonable under the circumstances, leading to the setting aside of the conviction under the Summary Offences Act. The appeal against the severity of the sentence was withdrawn by the appellant.

The court dismissed the appeal against the conviction for possessing the imitation firearm and set aside the conviction for possessing the box cutter. No further orders were made regarding the severity of the sentence.

Orders

Orders of the court

Appeal against conviction of offence under Firearms Act 1996 s7(1) dismissed.

Appeal against conviction for custody of a knife (a box cutter) contrary to Summary Offences Act 1988 s 11C(1) set aside.

Appeal against severity of sentence withdrawn.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Palmans v R [2021] NSWDC 467
Hearing dates:	07-08 June 2021
Date of orders:	08 June 2021
Decision date:	08 June 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal against conviction of offence under Firearms Act 1996 s7(1) dismissed. Appeal against conviction for custody of a knife (a box cutter) contrary to Summary Offences Act 1988 s 11C(1) set aside. Appeal against severity of sentence withdrawn.
Catchwords:	Crime – Appeal from Local Court – Whether imitation firearm was produced and identified as a children’s toy – Produced as a children’s toy in Germany but not identified as a children’s toy – Whether appellant had a reasonable excuse for possession of a box cutter in the early hours of a Tuesday morning in Glebe. Evidence – Admissibility of statements of 2 witnesses in a criminal proceeding – Whether witnesses (mother and grandmother of appellant) unavailable to give evidence.
Legislation Cited:	Evidence Act 1995 Firearms Act 1996 Summary Offences Act 1988
Cases Cited:	Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd [2017] NSWSC 981 Darestani v The Queen [2019] NSWCCA 248
Category:	Principal judgment
Parties:	Appellant – George Palmans Crown – Regina
Representation:	Appellant – T. Kent of Counsel instructed by F. Mersal (Mersal & Associates) Crown – J. Menzies, sol. (DPP)
File Number(s):	2018/00315181
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 09 December 2020 Before: Stewart LCM File Number(s): 2018/00315181