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  • Unreported Judgment

Tseng v Queensland Police Service

 

[2019] QDC 245

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

Tseng v Queensland Police Service [2019] QDC 245

PARTIES:

EN-TZU TSENG
(First appellant)

and

TZU-WEI TSENG
(Second appellant)

v

QUEENSLAND POLICE SERVICE
(Respondent)

FILE NO/S:

MOG11903/18(7), 11908/18(7); D2938/2018, D2939/2018

DIVISION:

 

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

5 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

4 October 2019

JUDGE:

McGill SC DCJ

ORDER:

Each appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – Summary offences – appeal – public nuisance offence – whether magistrate right to convict – analysis of evidence.

Summary Offences Act 2005 s 6. 

Allesch v Maunz [2000] 203 CLR 172 – cited.

Atkinson v Gibson [2010] QCA 279 – applied.

Barrington v Austin [1939] SASR 130 – distinguished.

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 194 – cited.

Commissioner of Police v Al Shakarji [2013] QCA 319 – cited.

Dillon v Byrne [1972] 66 QJPR 112 – distinguished.

Donnelly v McDonald [1989] 12 Qld Lawyer Reps 111 – distinguished.

Fox v Percy [2003] 214 CLR 118 – cited.

House v R [1936] 55 CLR 499 – cited.

Mbuzi v Commissioner of Police [2015] QDC 257 – considered.

McDonald v Queensland Police Service [2017] QCA 255 – cited.

Parsons v Raby [2007] QCA 98 – considered.

R v Lawley [2007] QCA 243 – cited.

Robinson Helicopter Company Inc v McDermott [2016] 90 ALJR 679 – cited.

Rowe v Kemper [2009] 1 Qd R 247 – cited.

Shambayati v Commissioner of Police [2013] QCA 57 – cited.

Walker v Davlyn Homes Pty Ltd [2003] QCA 565 – cited.

White v Commissioner of Police [2014] QCA 121 – cited.

COUNSEL:

Each appellant appeared in person

HR Mangione (solicitor) for the respondent

SOLICITORS:

The appellants were not represented

Office of the Commissioner of Police for the respondent

  1. [1]
    On 16 July 2018 the appellants were each convicted after a trial of three summary offences, all committed on 10 January 2018. En-Tzu Tseng (“the first appellant”) was convicted of one public nuisance offence, one count of obstructing a police officer and one count of assaulting a police officer. Tzu-Wei Tseng (“the second appellant”) was convicted of one public nuisance offence and two counts of obstructing a police officer. After hearing submissions the magistrate ordered that no conviction be recorded, and each of them was fined $1,200 in respect of the three offences of which they were convicted, and ordered to pay $300 witnesses’ expenses. The penalty was referred to SPER for payment. Each has appealed against conviction, and submits that each of the charges should be dismissed.
  1. [2]
    The appeal is brought under the Justices Act 1886, s 222, and is by way of rehearing on the record.  Neither appellant sought leave to lead further evidence, which requires satisfaction with the fresh evidence rules: s 223.[1]  On an appeal by way of rehearing, it is necessary for me to consider the evidence and make up my own mind, particularly in relation to matters involving the drawing of inferences from primary facts.[2]  In the proceeding before me, the onus is on the appellants to show that there was some error in the decision under appeal.[3]  If and in so far as this is an appeal against sentence, the principles in House v R [1936] 55 CLR 499 at 504–5 apply: it must appear that some error has been made in the exercise of the sentencing discretion.[4] 

Reasons of the magistrate

  1. [3]
    The magistrate who conducted the trial gave lengthy and detailed reasons, dealing with the evidence which had been heard over the course of the two days of the trial. The background to the matter, which I apprehend is uncontroversial, was that the first appellant owns an area of land at Compton Road, in respect of which there has been some conflict between her and the Brisbane City Council. The Council was concerned at the time about whether the land or part of it had been unlawfully filled, something for which apparently she had not obtained their permission.[5]  They asked her permission to come onto the land to undertake some physical investigations, which would involve digging holes in the land, to detect whether filling had occurred.  She refused, and the Council obtained a warrant to enter the land and to investigate and gather evidence about whether some offence had been committed there. 
  1. [4]
    The magistrate expressed the view that it was unnecessary in order to decide the charges against the appellants to make a determination as to the validity of the warrant. A submission was made in relation to validity on appeal; I will deal with that later. Acting pursuant to the warrant, the Council officers went to the property, entered and engaged in investigations, including surveying and digging holes. This was underway when the appellants who are siblings arrived at the property with their father, and the first appellant in particular remonstrated with the Council officers. The magistrate found that the first appellant was thoroughly shocked, very agitated, highly emotional and very aggressive when she saw people on her property. One of the Council officers was there for the purpose of recording on videotape what happened. That officer gave evidence and the magistrate saw two videos made by him on that occasion. In addition, there were recordings which were made by one of the police officers who attended.
  1. [5]
    The first appellant was accompanied by her father, and by the second appellant, both of whom were also agitated and shouting aggressively. The first appellant was at one stage swearing at the Council officers and calling out “corruption”. The Council officers directed them to stay away from the machinery, but the appellants were walking in front of the machinery and interfering with the investigation, and shouting loudly. Police were called and two officers attended and initially attempted to calm the first appellant, and explained the Council officers had a warrant which had to be respected, as on its face it appeared in order. The first appellant was unhappy about this, because she wanted the police to tell the Council officers to leave, and understandably, they refused to do so. She then became angry with the police. A third officer attended and used a dash camera to record what happened in the exchanges and interaction involving the appellants.
  1. [6]
    There were a number of three minute video recordings and an audio recording which the magistrate had watched and listened to several times. One of the charges, that of assaulting a police officer, was particularised as kicking a male police officer in the leg, and the magistrate said that it was clear from the recording that the first appellant’s foot came into contact with his leg more than once, and it was recorded that he complained about her kicking him. This evidence was supported by dusty footprints on the leg of the uniform trousers which were photographed later at the police station.[6]  The magistrate also found that the videotape clearly showed that when police had arrested the first appellant and handcuffed her, and was seeking to place her in the police car, she extended and straightened her right leg in a way which prevented the police officers from putting her in the car.  That was found to amount to resistance to lawful arrest.  She was then lifted and forcibly placed in the back of the car.  Then she began to kick the inside of the car, which can be seen moving in the video. 
  1. [7]
    The magistrate also found that the video showed the second appellant trying to interfere with the arrest, by trying to push a police officer away and grabbing hold of police and the first appellant to prevent her being placed in the police vehicle. He was told several times to stay away and leave it alone but he kept interfering, and at one point pushed a female police officer, who had to be assisted by one of the Council officers by taking hold of the second appellant, and who then placed him on the ground, where he was handcuffed. The appellants’ father was also shouting and acting in a way which was attempting to interfere, but apparently does not speak English so he and the police were unable to communicate. At one point the first appellant had positioned her car so as to interfere with access to the work the Council were attempting to do, but eventually she moved it when directed to do so by a police officer: p 7. After the male police officer arrived at the site and he identified himself to the first appellant, she was repeatedly yelling at him and accusing him of corruption, and continued to shout him down whenever he tried to speak to her.
  1. [8]
    The magistrate accepted that the first appellant was warned she was creating a public nuisance and threatened with arrest, and when she continued to shout at the officer he arrested her for that offence: p 8. It was in response to this that the magistrate found that the first appellant kicked him in the leg, and struggled violently to resist being placed in the police car: p 8. The magistrate said that the first appellant had denied yelling, but that the recordings and video showed irrefutable evidence that she was shouting and yelling: p 10. The magistrate also rejected her evidence that she was placed in handcuffs without warning, on the basis of the evidence that she was given directions and warnings, but ignored them and continued to yell at the police officers.
  1. [9]
    The first appellant claimed that after the police came she was very calm, which was also quite inconsistent with the behaviour revealed in the videos: p 13. The magistrate also rejected her evidence that she was not kicking in the car, since that was said to be obvious from the fact that the video showed she was the only one in the car which was moving in response to what she was doing: p 11.[7]  The magistrate rejected other evidence that she gave which was inconsistent with what was visible and audible in the tapes.  The magistrate also rejected the evidence of the second appellant as being inconsistent with the tapes in a number of respects.  Overall the magistrate concluded that all the elements of each of the offences had been proved. 

The video evidence

  1. [10]
    The first witness was the Council officer who verified two videotapes which he made that day, which became Exhibit 1: p 11. The first video recording was made before the police arrived, and then there was a gap of 10-15 minutes before two police officers arrived, which was probably 20-25 minutes from the time when he started the first recording. There was then a further 10-15 minutes before the third police officer arrived: p 12. The public nuisance offence was particularised as relating to the conduct which occurred after the police officers arrived, and accordingly the first tape which was made before that occurred is relevant only by way of background.
  1. [11]
    The first tape shows both appellants and an elderly gentleman who I assume is their father. In large parts of the first tape the two appellants are shown shouting incessantly at Council officers, aggressively asking them questions but not giving them any opportunity to answer. The father is also shown yelling aggressively at the Council officers, but not in English. The first appellant yelled “corruption” and “call the police” repeatedly, and later “criminal” and “thief”. She did not respond rationally to anything said to her, and when the Council officers attempted to explain what was happening she persistently refused to listen.
  1. [12]
    The first appellant repeatedly told the various Council officers and the sub-contractors who were onsite to stop work and to leave the property, and claimed that they were acting illegally, apparently on the basis that they had not shown her the warrant before entering the property, or had not given her notice of intention to execute the warrant before entering or arriving at the property. Both appellants appear to be behaving very aggressively to Council officers, though the behaviour of the first appellant was worse. Overall both of them, particularly the first appellant, were persistently aggressive and unreasonable in their behaviour to Council officers. Their conduct was quite obnoxious.
  1. [13]
    The second Council tape is quite short. It shows the position after the first appellant has been arrested and is being escorted to the police vehicle by police who were holding her. The second appellant then moves in and grabs a police officer’s arm and tries to prevent the first appellant from being put in to the police vehicle. The Council officer said that he stopped videotaping the struggle involving the police and the appellants in order to assist the police to control the second appellant: p 29.
  1. [14]
    A male police officer was called, who said that when he arrived at the site he could hear yelling from beside a police vehicle, parked his vehicle on what appeared to be a dirt road leading off Compton Road, behind the other police vehicle, and left a dash camera running: p 54. He produced a video recording which contained eight segments of video, each three minutes long, which appeared to follow each other consecutively. There was also an audio recording made by the officer after about 10 minutes on the scene, when he activated his recorder.[8]  I have seen the video files, and listened to the recording; they are not synchronised and it is necessary to view or listen separately, but to some extent it is possible to match up what one can see in the video with what one can hear in the audio recording, particularly when something of significance is happening. 
  1. [15]
    The first file shows the police vehicle proceeding to the scene, arriving and parking behind the other police vehicle. The male police officer leaves the vehicle and walks in front of the other police vehicle where other police officers are visible. In the second video file there are three police officers at the front of the other vehicle, but initially it is not possible to see whether anybody else is at the front of the vehicle. The second appellant can be seen standing to the right of the vehicle, though at one stage he moves to the front of the vehicle, and then he and the father move away from it. The female police officer then moves away to the right, and a small grey car which had been parked in front of the other police vehicle also moves to the right some distance, stopping near the right-hand in the frame, and is then moving further to the right so that it is largely out of the picture. To the left of the picture there is a pole, presumably a power pole, and there is a person standing beside it. At one stage there was a conversation recorded between him and the male police officer, when he identified himself as a nearby resident.
  1. [16]
    At one stage after the small grey car was moved by the first appellant she began to move towards the Council officers again but was told to stop and move away from them. She photographed the police cars with her mobile phone, and then again moved towards the Council officers, where police moved towards her and she and the police officers were in a small group. In the next video a struggle can be seen involving the first appellant near the front of the police vehicle. The second appellant moved forward to interfere, and can be seen to attempt to prevent the police from placing the first appellant at the back of the vehicle. The second appellant is engaged in a scuffle, and is then taken away to the left of the scene and almost out of the picture. Following this the father argues with the police officers, presumably not in English.
  1. [17]
    In the next video file there is further arguing by the father, who is apparently being told to stay away from the police vehicle and also to stay away from the second appellant. At one point while the female police officer guards the car the father attempts to get the other side of the car open. He is then seized by the police, placed against the side of the car and handcuffed. A female police officer opens the car door briefly but the first appellant does not come out. In the next video file the father is moved away from the police vehicle and put on the ground in the shade near one of the Council trucks. The male police officer can be seen speaking to the person next to the pole, but otherwise the position remains fairly static.
  1. [18]
    In the next video file a second police vehicle arrives with other police officers, and I suspect there may have been another police vehicle which was not visible in the footage. The back of the vehicle was opened and the father was placed inside. In the next video file the second appellant is brought to the back of the police van and also placed inside. The police speak together, at one point they open the rear doors on the police vehicle but they are closed again, and there is further discussion before the video ends.
  1. [19]
    On the audio tape a police officer can be heard speaking to the first appellant and giving her a direction although the first appellant and a male voice can be heard yelling over what the police officer was saying. The police officer gave a formal direction that if she did not stop yelling she would be arrested for a public nuisance offence, but the first appellant continued yelling at him, trying to talk him down. The police officer then tells her that she is under arrest, and there are the sounds of a struggle. The voice of a female police officer can be heard instructing someone to stop struggling, and a male voice said “don’t kick me”. The female appellant could be heard yelling “what are you doing?”, and repeatedly screaming, while a male voice called out “go back”, and a police officer can be heard speaking on a police radio calling for a van.
  1. [20]
    Subsequently the male police officer can be heard telling someone, presumably the father, to get away from the car or he will be arrested for obstructing police. There is a further instruction to stay over there or he will be arrested as well, again I expect to the father, but the male voice is then heard saying “you are under arrest for obstructing police” and asking about handcuffs. He then informs the person that he is under arrest for public nuisance and obstructing police. At one point the police officer tells him to move his foot and be quiet; all this time the other person is yelling, apparently in a foreign language. Before the tape ends the male police officer summarises the position, including an assertion that the first appellant had kicked him.

Oral evidence

  1. [21]
    The Council officer who took the video said that he started the second videotape after he had seen the female appellant strike out with her leg and kick the police officer: p 11. He subsequently described this as a kick backwards: p 12. He produced a copy of the warrant that the Council officers had had with them that day, but the document that the officer produced was just the first two pages of the warrant. At that stage the two pages were admitted as Exhibit 2. Subsequently the prosecutor was able to produce a complete copy of the warrant, which was substituted as Exhibit 2, and the magistrate disclosed that she was the magistrate that had issued the warrant: p 15. The magistrate said that on p 3 of the warrant she had not inserted the word “eight”.
  1. [22]
    It is true that immediately above the signature there are the words “Given under my hand at Brisbane in the said State this ___ day of January 2018”, with the word “Brisbane” crossed out and “Holland Park” written in and apparently initialled, but the magistrate had not completed the entry by writing in the date of the day on which the warrant was issued. Nevertheless, immediately below the signature there is room for the date and time at which the warrant was issued to be written in, and at that point the time of “9.10am” and the date “8/1/2018” is written in, so the warrant on its face does record the date on which it was issued. The appellant argued that the absence of the date immediately above the point where the magistrate signed the warrant meant that it was not valid, but cited no authority for that proposition and in my opinion it is plainly not correct. If the warrant needs to be dated, and the time recorded on it, when it is issued, that has been done.[9]  On the face of it the warrant is a valid warrant issued under the City of Brisbane Act 2010 s 119, but like the magistrate, I do not consider that the validity of the warrant is a matter which arises for decision in this proceeding. 
  1. [23]
    The Council officer also produced a photograph which became Exhibit 3, which he said showed the location where the incident took place, which he described as a road reserve, with the first appellant’s land located to the left: p 13. The photo shows the local resident standing beside the pole. The officer said that the road reserve (which is not a made road) marked the boundary between the Brisbane City Council area, on the side of the first appellant’s land, and the Logan City Council area, on the other side of the road reserve.
  1. [24]
    Under cross-examination the officer said he was standing about 20 metres away from where the first appellant was speaking to the police officer, and could see what was happening, but did not have a detailed knowledge of the conversation: p 19. He said the Council vehicles were parked on the Logan side of the road reserve. At the time of the interaction with the police officers he was standing on the Logan side of the road reserve: p 20. He remembered that a police officer had at one stage given the first appellant a direction to move her car, which was blocking access for the Council vehicles to leave the site. Under cross-examination by the second appellant the officer conceded that he was the one who had come to the assistance of the female police officer after the second appellant had attempted to intervene: p 22. He said that the second appellant pushed one of the police officers away from the first appellant a number of times; one police officer was trying to keep him away from the others, but he kept pushing away and going back there: p 23. He said that he wrestled the second appellant to the ground, and subsequently another police officer came on top of him prior to the second appellant being handcuffed.
  1. [25]
    The first appellant then sought to cross-examine further, but the question was ruled “improper”, asking him something he could not possibly know: p 24. The magistrate also would not allow her to ask the Council officer why police had arrested her, in my opinion quite properly. When asked about what he had seen he again said that he saw the first appellant while police were attempting to put handcuffs on her lash out with her right leg and kick the male police officer in the right leg: p 25. He said that he did not see the police throw the first appellant into the vehicle, or her bang her elbow on the door as she went in. When asked some further questions he said that he did see the police trying to put the first appellant into the vehicle and it looked like she was forcing against them, stopping them from putting her in the car: p 26. He said that when there was a lot of commotion going on and a lot of yelling one police officer was trying to stop the second appellant from going over to the first appellant, and at that point he recalled an officer saying words to the effect “back off or you will go too”: p 27.
  1. [26]
    Another Council officer gave evidence and identified the property owned by the first appellant; the land depicted in the photograph Exhibit 3 was a future road (not a constructed road) known as Millers Road: p 31. He said that after the police arrived he handed them a copy of the warrant they had and explained why they were there, and he saw the police attempt to explain to the first appellant that there was a warrant and that she needed to move the vehicle that was parked there obstructing access to where the Council vehicles were parked: p 33. He then gave a very general description of what he had seen happen, which was not entirely consistent with what appears in the videos. He said that at one point the first appellant was shouting, her voice was loud, but he could not now recall what was being said: p 38.
  1. [27]
    When asked whether the witness had seen the police push her into the police car he replied that “they were trying to get you into the vehicle and you were resisting and kicking out”: p 39. He also had assisted to control the second appellant and to hold him until police were able to come and put handcuffs on him: p 39. Under cross-examination from the second appellant, the witness said that he assisted in the arrest because he used to be a police officer, and he was familiar with the processes, and he and the other Council officer had assisted police to control the second appellant: p 42. As soon as the handcuffs were on the second appellant he stepped aside: p 43. 
  1. [28]
    A third Council officer gave evidence. This officer also said that, after the male police officer arrived and there was some interaction between the three police and the first appellant, two of the police officers took hold of the first appellant, and he then saw the first appellant strike out with her leg and hit the male police officer in the leg: p 46.  Under cross-examination from the first appellant the witness seemed to say that he could hear a lot of screaming from her during the conversation with the police officer, and swearing: p 48.  It emerged however that this was a reference to the behaviour of the first appellant prior to the arrival of police: p 49.  He said that after the police arrived he did not hear much screaming but heard raised voices, and could not remember hearing any swearing: p 49.  He said that he saw the male police officer grab the first appellant and subsequently saw her strike out with her leg onto the male officer’s leg: p 49.  He said he saw an older person attempting to open the door of the police vehicle, and heard him raising his voice but could not understand what he was saying; he saw the police put him in handcuffs and put him on the ground: p 50.  He said in answer to a question by the second appellant that he did not see anyone use his hand to push the second appellant’s face into the dirt: p 53.  At no point was a contrary version put to any of the Council officers who gave evidence. 
  1. [29]
    The first police witness was the male police officer, who verified his recordings referred to earlier. He said when he first arrived the first appellant was out of the vehicle and was speaking to the female police officers; she was very animated but could recall the conversation and did not have his recorder running at that point: p 55.  He then spoke to one of the Council officers.  He spoke to the first appellant and asked her to move her vehicle out of the way, and then directed her to remove her vehicle from that area: p 56.  He said the first appellant was yelling and repeatedly asking who he was; he identified himself as a police officer, providing his name, rank and station.  The first appellant got into her car, but did not for a time close the door, until he told her that unless she moved her vehicle away she may be arrested.  He had difficulty understanding what she was saying, though he could make out questions about who he was, statements that he was corrupt and asking why he was doing this to her, and also assertions by her that the Council workers were not entitled to be there.  Eventually she did move her vehicle, but then became more agitated, yelling and swearing at the police officer, alleging that he was corrupt. 
  1. [30]
    The police officer identified himself again, and told the first appellant that he believed that she was causing a public nuisance and that if she did not stop the behaviour she might be arrested: p 56. He then had a conversation with the other officers and activated his recorder. The recordings were played and the officer said that after the first appellant was arrested she kicked him in the right leg repeatedly with her right foot as a backwards kick: p 58. The second appellant attempted to interfere in the arrest of the first appellant and grabbed hold of the female police officer’s arm. He said that after the first appellant was placed in the police car she attempted to kick out the plexiglass screen in the vehicle, and continued yelling: p 58. The father at one point opened the front door of the car, and he then arrested the father for obstructing police. While that occurred the first appellant continued to kick while inside the vehicle. He said that after the appellants were transported to the watch house he took photographs of the marks on the trouser leg of his uniform, and photographed the shoe of the first appellant; these became Exhibits 5 and 6. He gave the formal evidence that he did not give the first appellant permission to assault him: p 60. He said when it came to putting the first appellant in the police vehicle she had to be physically lifted as she had her foot wedged against the door: p 61. 
  1. [31]
    During the cross-examination of the first police officer the magistrate had to tell the first appellant to calm down: p 62. She also had to tell her not to cut off the witness when he was answering a question: p 65. He said that he thought that she was committing a public nuisance by yelling and screaming and swearing, and that she swore at him repeatedly: p 65. What she was saying was audible to everyone around because it was very loud when she was yelling: p 66. At pp 67 and 68 the magistrate summarised what she had heard on the audio tape of the exchange between the police officer and the first appellant around the time when she was arrested. I have not detected any significant inaccuracy in that summary, nor was my attention directed to any by the appellants. At p 71, some recordings were played again, and again the magistrate summarised what she believed she had seen in the recordings. She also expressed the view, which with respect seems to me to have some force, that there was not much point in asking the police officer for details about the circumstances of the arrest when it had all been recorded.
  1. [32]
    After lunch there was some cross-examination of the circumstances of the father’s arrest, which is not relevant to the appeal. In cross-examination of the male police officer, the first appellant did not suggest that she had not kicked him in the leg, nor did she suggest that she had not been struggling to prevent the police from placing her in the back of the police car. Under cross-examination by the second appellant, he said that the second appellant was trying to get to the first appellant, and as a result of that came into contact with himself and at least one if not both of the female police officers: p 79. He said he was not aware of the second appellant’s approach until he felt contact on his left arm, and he saw that some force was required by one of the female police officers to drag him away from the rest of them: p 80. He said while he was trying to put the first appellant into the police vehicle he felt pressure on his arm until one of the female police officers pulled the second appellant away and the pressure was relieved: p 81. At that time however he was focused on the first appellant: p 82.
  1. [33]
    It was during the cross-examination of this witness that it emerged that the idea that the other two defendants would translate for the father, who had also been charged, was not practicable, and the trial of him was aborted: p 84.
  1. [34]
    A female police officer gave evidence that she and her partner attended at 161 Compton Road on 10 January when she found the first appellant in an agitated and emotional state, being very upset at the presence of the Council officers on her land: p 86.  One of the Council officers explained about the warrant, and she then tried to calm down the first appellant and explain the situation about the warrant to her.  One of the Council officers approached her and asked her to have the first appellant’s vehicle moved, and about that time the male police officer arrived to assist.  After some conversation the first appellant moved her vehicle, eventually to an appropriate position, but then she came back to where the police where and abused them for assisting the Council: p 87.  The male police officer attempted to obtain some details from the first appellant who spoke over him and would not listen to him, and became more and more verbally aggressive, at which point she was arrested. 
  1. [35]
    There was a struggle after which they managed to restrain the first appellant with handcuffs, and the other two police moved her to the police vehicle. The first appellant continued to struggle and scream loudly and abusively, and when the police attempted to place her in the vehicle the second appellant approached the area and grabbed both of the officers to try to pull them off the first appellant. She then pushed the second appellant away from the police vehicle and warned him that if he did not back off he would also be arrested. He then pushed her out of the way and went back to the other two police who were still struggling with the first appellant.
  1. [36]
    She said she grabbed the second appellant from behind and told him that he was under arrest. He continued to struggle and would not cooperate, or allow himself to be handcuffed, and she required the assistance of one of the Council officers to get him under control and put him on the ground, where he continued to struggle: p 88. The other female police officer came over and they were able to place handcuffs on the second appellant, after which they sat him up and he ceased to struggle. While in that position she saw the appellant’s father approach the driver’s door of the police vehicle and open it, and the male police officer then restrained the father and arrested him. Ultimately all three were transported to the watch house.
  1. [37]
    Under cross-examination the officer said she could not recall the exact words that the first appellant was using but that she was abusive towards them and had directed her agitation towards them after she moved the car: p 91.  Some of the cross-examination of the witness was very strange.  The first appellant appeared to be suggesting that she was not screaming at police at about the time she was being handcuffed, and asked a series of questions suggesting that she did not have any reason to be screaming: p 92.  Yet it is obvious from the recordings that she was screaming continuously for some time before and while this was happening.  At one stage she suggested to the police officer that she asked politely for her name, to which the answer was that there was no polite request for that: p 92.  That is certainly consistent with what I heard on the tape.  Further questioning was directed to matters which were irrelevant or which the witness would not have known. 
  1. [38]
    When cross-examined by the second appellant she confirmed that she saw him place his hands on each of the other officers while they were trying to get the first appellant into the back of the police vehicle: p 97. It was suggested in cross-examination that the second appellant had not struggled when he was being arrested, but that was rejected by the witness who said he did struggle: p 101. At p 102 the magistrate reprimanded the second appellant for shouting at the witness. In cross-examination the second appellant asked several times whether the officer hit him, and was told the officer had not: p 104.
  1. [39]
    The other female police officer gave evidence which was very similar to that of the first female police officer. She was the one assisting the male police officer to place the first appellant in the back of the police vehicle, which she said the first appellant was resisting by putting up her foot against the vehicle, when the second appellant came over and grabbed her right arm and pulled it away from where she was holding the first appellant: p 107. After they were able to get the first appellant into the police vehicle, she saw that the other female police officer was grappling with the second appellant, and she went to assist her. The second appellant was instructed to put his arms out to the side and he did not comply with that instruction, and it was necessary for them to pull the arms out forcibly from underneath him so that he could be handcuffed: p 107.
  1. [40]
    She said she then went to guard the police vehicle while the male police officer searched the second appellant, and while doing that she observed the appellant’s father open the driver’s door of the police vehicle. The male police officer came over and together they restrained the father against the vehicle and handcuffed him, then walked him to a shaded area where he sat down: p 108. Under cross-examination she said the first appellant was yelling and saying the Council were corrupt, and that she had told the first appellant that she could not help if she was constantly shouting: p 109.  She said that while police were trying to give the first appellant instructions she was constantly shouting at them: p 110.  She said that she was unsure just who placed the handcuffs on the first appellant, but it was not her as she was just holding her arm: p 113.  Again, this witness was not shaken in cross-examination by either appellant. 

Appellants’ evidence

  1. [41]
    On the second day of the trial the first appellant gave evidence. There is no point in going through her evidence in detail. The magistrate rejected it as inconsistent with the recordings, and that is obviously the case. A few examples are that she claimed that she was put in handcuffs without warning (p 20) when in fact it is obvious from the tape that she had been given more than one warning, which she ignored, and persistently tried to shout down the police officer giving the warnings. At one point (p 21) she claimed that she did not know that he was talking to her, but if that was the case it was only because she was focused on yelling aggressively at the police officers and ignoring anything they did or said. She claimed that it was impossible to have kicked the police officer, yet a number of witnesses testified to that.
  1. [42]
    Under cross-examination she denied that when speaking with the officers of the Brisbane City Council she was highly emotional and highly aggressive: p 29. She claimed she did not get angry at all and did not shout at all when dealing with the police: p 32. She claimed she was under arrest for no reason: p 39. When asked whether she was struggling after she was arrested she claimed she could not recall, but said she asked for help to stop their violence: p 39. She claimed that her father and her brother were just watching. She denied that she kicked the officer in the leg (p 40) and denied that she had left footprints on his trouser leg when she kicked him: p 41.  She claimed that she did not scream or yell at any police officer and she would not admit that she was trying to prevent them from putting her in the police car: p 42. 
  1. [43]
    The second appellant claimed that after the first appellant was arrested the police had lifted her up a little and dragged both of her knees on the ground (p 47) and that after she was handcuffed her face became more calm and not so violent, and claimed he did not grab any police officer: p 49. He claimed that after the Council officers wrestled him down to the ground he did not move anymore and did not do any struggling, just lay there and did anything they wanted, including putting his hands behind the back: p 49. That is quite inconsistent with the evidence of the two female police officers who said they had to use force to get his hands behind his back so they could put handcuffs on him.
  1. [44]
    At times when the magistrate asked him direct questions he did not answer them, but went on about something else.[10]  He denied that one of the female police officers had told him to stay away from where his sister was being put in the police car, and that the male police officer also told him to stay away: p 55.  Both of these were audible on the recording.  He denied that he actually touched the arms of the male and one of the female police officers (p 57) though that is visible in the videotape, and in addition three stills from the videotape were put in evidence, which show his arm on the male police officer’s arm, and his arm around one of the arms of one of the female police officers: Exhibit 6. 
  1. [45]
    The magistrate rejected the evidence of both appellants, and in the light of the content of their evidence and the extent to which it was clearly inconsistent with both the evidence of the other witnesses and, more importantly, the video and audio recordings, the magistrate was clearly correct in rejecting their evidence. The evidence of the prosecution witnesses is in many respects supported by the video and audio tapes, and in those circumstances I agree with the magistrate’s acceptance of that evidence.

Public Nuisance Offence

  1. [46]
    A public nuisance offence is created by the Summary Offences Act 2005 s 6.  By subsection (2) a person commits a public nuisance offence if:

“(a)  the person behaves in—

  1. (i)
    a disorderly way; or
  1. (ii)
    an offensive way; or
  1. (iii)
    a threatening way; or
  1. (iv)
    a violent way; and
  1. (b)
    the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.”
  1. [47]
    More than one aspect of the definition can be relied on to prove a single offence, and it is not necessary for a person to make a complaint about the behaviour of another person before a proceeding may be started by a police officer: subsections (4), (5). In addition, a person can behave in an offensive way by the use of offensive, obscene, indecent or abusive language: subsection (3).
  1. [48]
    In Atkinson v Gibson [2010] QCA 279 the court held that a road was a public place, even if it was temporarily occupied by police for some particular purpose.  The same applies to the unmade road within which the events relevant to the charge took place.  In that decision as well Fraser JA, with whom the other members of the court agreed, did not comment adversely on findings by a magistrate that a police officer who with others had arrested the respondent was a member of the public, and that the respondent’s words and gestures interfered with the officer’s enjoyment of the place in the sense of an ability to be free from unacceptable annoyance: [21].  That particular case turned on whether the fact that the police set up the roadblock in the area for the purpose of conducting other investigations meant that that area of the road had ceased to be a public place, a question which does not arise here. 
  1. [49]
    In Parsons v Raby [2007] QCA 98 the Court of Appeal held that for two men to have a fight in a public place could constitute a public nuisance offence if the relevant person was behaving in a disorderly or violent way in having that fight: [8].  In that case, there was a lack of clear evidence that that was the case, the charge having related to a fight that occurred before police arrived on the scene.  On that ground the court on appeal held that the magistrate had erred in the factual analysis of the case, and that on the evidence the charge had not been proved beyond reasonable doubt.  
  1. [50]
    In Mbuzi v Commissioner of Police [2015] QDC 257, Andrews DCJ held that the appellant, by using aggressive body language, finger pointing and being aggressive in the personal space of the police officers and by telling police they were stupid, idiots and ignorant, behaved in a disorderly manner for the purposes of s 6: [47]-[51].[11]  In that case it was held that the basis of the charge was the very inappropriate level of aggression when judged by reference to time and place, of which the disparaging words used to the police was just one aspect: [55].  In that case the fact that there was another person who was moving with his children through the carpark at the time when the appellant was arguing with the police was the basis of a finding that the behaviour interfered and was likely to interfere with the peaceful passage of them through the carpark: [61]. 

Analysis

  1. [51]
    The magistrate in the present case found that the elements of the offence of public nuisance had been made out. The relevant events occurred in a public road, which was no less a public place because that the road was unmade. The appellants’ claim that the road was part of her property was rejected, on the basis that there was evidence from the Council officers that the location in question was in the road reserve. The magistrate was entitled to accept that, and indeed in my assessment was correct in doing so. It was submitted by the appellants that the road was not a constructed road, that it was simply a vacant space which did not make it a public place, but that is plainly wrong. A road reserve is just as much a public place as any other road. The appellants were behaving in a disorderly way and in an offensive way and in a violent way, and their behaviour was likely to interfere with the peaceful enjoyment of the public place by members of the public, being whatever members of the public happened to be in the place at the time. That would cover the police, the Council officers and the bystander near the power pole.
  1. [52]
    It was submitted that the warrant was not valid because it was not properly dated, but there is no substance to that, and in any event the validity of the warrant was irrelevant to the charges in the present case. The proposition of the appellants that there was no evidence to prove that the first appellant behaved in a disorderly, or offensive or threatening or violent way was plainly inconsistent with the evidence, that she was aggressive towards the police officers and was shouting them down, using abusive language and making meaningless demands without giving them the opportunity to respond, while ignoring anything they said to her. The tapes and the police evidence show that she was frequently and repeatedly yelling at the police prior to the time when she was arrested for the public nuisance offence.
  1. [53]
    The first appellant was warned that she risked arrest for a public nuisance offence if she continued to yell aggressively at the police officers, a warning which she pointedly ignored by persisting to yell in an attempt to shout down the police officer at the time. The fact that she was ignoring the warning does not mean that it was not given, and does not mean that she was not given a reasonable time to comply with it; it demonstrates that she was ignoring it. The proposition that the arrest of the first appellant was not reasonable or necessary is farcical, given the appalling behaviour of the first appellant at the time; for practical purposes arresting her was the only way to control her behaviour, and police were thoroughly justified in taking that action.
  1. [54]
    In those circumstances it is unnecessary to consider whether there were reasonable grounds to arrest her for the public nuisance offence even if that offence had not been committed. It was submitted that the conduct in question here did not satisfy the test of a public nuisance offence in s 6. Reliance was placed on a number of decisions involving earlier Queensland legislation, or legislation in other states,[12] but it is necessary to consider the operation of s 6 in this Act by reference to the Queensland authorities dealing with the interpretation of the Act. 
  1. [55]
    With regard to the second count against the first appellant, the offence was one of assaulting a police officer acting in the performance of his duty. The magistrate found that the first appellant had kicked the male police officer in the leg. There was ample evidence from a number of witnesses that this occurred, supported by evidence from the photographs of the marks left on the police officer’s uniform. The kicking of the police officer involved an application of force without the consent of the officer, which was an assault for the purposes of the Criminal Code and hence for the purposes of the Police Powers and Responsibilities Act 2000 s 790.  The evidence from the first appellant denying the offence was understandably rejected, and on the basis of the evidence I agree with the magistrate’s finding.  The police officer at that time, having arrested the first appellant, was seeking to place her in the police vehicle with a view to conveying her to the police station, and was acting in the performance of his duty, and therefore the offence was made out. 
  1. [56]
    With regard to the third offence, it is obvious from the video footage that the first appellant persistently struggled against the police and attempted to prevent their placing her in the rear of the police vehicle. That is clearly obstructing police in the performance of their duty, and the first appellant was rightly convicted of that offence as well.
  1. [57]
    It was submitted that there were some internal inconsistencies among the various witnesses. There were some inconsistencies, particularly as to the existence of yelling or shouting on the part of the first appellant, though that can probably be explained by the fact that her behaviour varied from time to time, and that there were periods when she was less verbally aggressive than others; nevertheless the fact of the shouting or yelling by her is clearly proved by the audio tape in respect of the period after it was activated, and there was ample evidence from the police witnesses on which the magistrate, in my view, properly found that there was also similar behaviour beforehand, which is consistent with what appears in a number of the videotapes. Overall, I consider that the first appellant has not shown any error on the part of the magistrate, and her appeal is dismissed.
  1. [58]
    With regard to the second appellant, at the relevant time he was acting violently towards the police officers after the first appellant had been arrested when they were seeking to place her in the motor vehicle, and was yelling aggressively at that time. That also satisfies the elements of the public nuisance offence. It is true that the second appellant was not as verbally aggressive as the first appellant was, and that the relevant conduct on his part really arose after the first appellant had been arrested, though there had been some exchanges earlier. Given the circumstances, there was no time to warn him to desist from this behaviour before it was appropriate to arrest him. Most of the arguments advanced for the second appellant duplicate those advanced for the first appellant, and need not be considered again.
  1. [59]
    On two occasions it is clear from the video evidence that the second appellant grabbed the arm of a police officer who was at the time attempting to place the first appellant in the back of the vehicle, and in that way obstructed that process. That amounted to obstructing each of the police officer in the performance of the officer’s duty for the purposes of the Police Powers and Responsibilities Act 2000 s 790, and the second appellant was properly convicted of both of those charges.  Because he persisted in his attempts to interfere with the police arrest of the first appellant, and placing her in custody, despite warnings from the police officers to go away and to keep back, it was plainly reasonable and necessary for the police to arrest him to prevent continuation of this behaviour. 
  1. [60]
    There was nothing ambiguous about the directions given to him both verbally and by bodily gesture, the position was simply that he chose to ignore them. Given the circumstances, the police gave adequate warning before arresting the appellants, but given the persistence and the behaviour of both appellants and their having both ignored the warnings that were given to them, quick action on the part of the police was necessary and appropriate in the circumstances, and there was no impropriety in the police acting promptly when their warnings were so clearly being disregarded. Overall the second appellant has failed to show any error on the part of the magistrate, and the second appellant’s appeal is also dismissed.
  1. [61]
    It was not obvious that there was any separate appeal as to penalty; no argument was advanced that the penalty was excessive, and plainly it was in no way excessive. Accordingly each appeal is dismissed.

Footnotes

[1]  The first appellant did show me some photos she had taken on the day, and a letter she had received from a Government department, a copy of which she said she had on the day.  Both had been produced at the trial, but were not made exhibits, probably because they were irrelevant.   

[2] Fox v Percy [2003] 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott [2016] 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[3] Allesch v Maunz [2000] 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[4] R v Lawley [2007] QCA 243 at [18]. 

[5]  The video evidence shows what looks to me like extensive earthworks on the land, including piles of earth or fill. 

[6]  Exhibit 5.  The magistrate rejected the first appellant’s allegation that these marks had been fabricated by the police using her shoes which were taken from her at the watch house: p 5. 

[7]  I did not notice this myself when I watched the videos, but I saw them only once, and may have missed this.  In any case, this is relevant only to the credit of the first appellant, and there are many other reasons for rejecting her evidence. 

[8]  Both are on the one disc, which became Exhibit 4.

[9]  The Act in s 119 does not require the warrant to be dated, but does require it to be in the approved form.  But s 119(8) provides that “a warrant is not invalidated by a defect in the warrant … unless the defect affects the substance of the warrant in a material particular.” 

[10]  Examples at pp 48 and 51. 

[11]  In that decision his Honour, on an appeal under s 222, approached the matter as if the police had to prove the charge beyond reasonable doubt before him.  Subsequent decisions of the Court of Appeal have shown that that is not the test, as discussed earlier, but that does not alter the significance of this analysis of the operation of s 6. 

[12] Dillon v Byrne [1972] 66 QJPR 112 at 133; Barrington v Austin [1939] SASR 130 at 132; Donnelly v McDonald [1989] 12 Qld Lawyer Reps 111.

Close

Editorial Notes

  • Published Case Name:

    Tseng v Queensland Police Service

  • Shortened Case Name:

    Tseng v Queensland Police Service

  • MNC:

    [2019] QDC 245

  • Court:

    QDC

  • Judge(s):

    McGill SC DCJ

  • Date:

    05 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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