Palmer v Director of Public Prosecutions

[2020] QCA 260

[2020] QCA 260

COURT OF APPEAL

SOFRONOFF P
MORRISON JA
HENRY J

Appeal No 10698 of 2020
SC No 9299 of 2020

STUART WILLIAM PALMER  Appellant

v

DIRECTOR OF PUBLIC PROSECUTIONS  Respondent

BRISBANE

TUESDAY, 24 NOVEMBER 2020

JUDGMENT

SOFRONOFF P:  The appellant sought bail from Williams J in relation to charges of two offences of breaching bail in January and February 2020, and also in relation to the following charges alleging the commission of six offences, all of which were alleged to have been committed on 2 March 2020:

(a)two offences of unlawful use of a motor vehicle;

(b)one offence of dangerous operation of a motor vehicle;

(c)one offence of driving while disqualified;

(d)one offence of stealing; and

(e)one offence of attempted entry of a dwelling with intent to commit an indictable offence.

The appellant was also facing 19 other charges that were alleged to have been committed by him at various dates in June 2019, January 2020 and February 2020.  These offences included burglary, fraud, unlawful use of a motor vehicle and other offences involving unlawful entry and stealing.  He was remanded in custody for the June 2019 offences and made several unsuccessful applications for bail but a magistrate released him on bail on 7 November 2019.

On 29 January 2020 the appellant was charged with having committed offences of burglary, unlawful use of a motor vehicle and stealing on the same day.  He was granted bail again on 31 January 2020.  On 5 February he was charged with further similar offences which were alleged to have been committed by him in January 2020.  Once more he was granted bail.  On 19 and 20 February he was charged with offences of entering premises with intent, receiving tainted property and eight counts of fraud, alleged to have been committed by him on 3 February.

On 2 March 2020 he was charged with unlawful use, dangerous driving, stealing and unlawful entry offences alleged to have been committed on 2 March 2020.  This time the appellant was refused bail in the Magistrates Court, and on 23 July 2020, Jackson J also refused his application for bail.  His Honour said:

“The real difficulty is, in my view, that the applicant is, by reason of having received successive prior grants of bail, and then being alleged to have committed successive further offences whilst on those prior grants, to the extent that on 2 March 2020 he is alleged to have engaged in a sixth episode of offending, whilst having received no fewer than five prior grants of bail, makes it impossible for him to satisfy the onus under section 16 subsection (3) of the Bail Act that he must show why his continued detention in custody is not justified.”

On 28 August 2020 the appellant applied for bail to Williams J. Because of the history of the appellant’s alleged offending while on bail, pursuant to s 16(3) of the Bail Act 1980 (Qld), the appellant had to justify his release on bail.

The appellant submitted to her Honour that there had been a material change in circumstances since Jackson J refused bail on 23 July 2020.  He pointed to the bail that a magistrate had granted in relation to the offences alleged to have been committed on 26 January, 28 January and 3 February 2020.  Also, on 20 August 2020, a magistrate sentenced him to 15 months’ imprisonment for certain offences that he was then facing, and set a parole eligibility date of the same day, 20 August 2020.  The appellant also submitted that the effect of the pandemic has been to delay the hearing of the charges against him and that he has not yet received an expected brief of evidence from the prosecution.  Williams J refused the application.  He now appeals against her Honour’s order.

The proceeding today is not an application for bail, it is an appeal against the exercise of a discretion and, as a consequence, the appellant has to demonstrate an express or an implicit error of fact or law that affected Williams J’s decision.

After considering the appellant’s submissions about the events that happened since 23 July 2020, Williams J concluded that none of them bore upon the substantial issue upon which the appellant’s case turned.  This was the appellant’s history of apparent offending while on bail.  Her Honour said that the delay in hearing the charges did not negate that risk of further offending.  Her Honour concluded that having regard to the appellant’s criminal history, and the allegations that he has committed further offences while on bail, he had not discharged the burden to justify his release on bail.  None of these conclusions can be said to be wrong, and there was no error in her Honour’s application of principle.

As I have said, this is an appeal against an exercise of discretion.  I express no opinion about the merits of any fresh application for bail, having regard to the appellant’s submissions about having being sentenced for some of the charges that were live when Jackson J heard his application, having regard to the time that has passed since both Jackson J and Williams J heard the applications, and, importantly, the delay in dealing with the remaining charges.  Nevertheless, the appellant has not shown any error of fact or law in her Honour’s judgment, and as a consequence, this appeal should be dismissed.

MORRISON JA:  I agree.

HENRY J:  I agree.