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  • Unreported Judgment

Queensland Police Service v McKenzie

 

[2020] QMC 3

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v McKenzie [2020] QMC 3

PARTIES:

QUEENSLAND POLICE SERVICE

v

JOHN ROY McKENZIE

FILE NO/S:

MACK – MAG – 00178429/19(1)

DIVISION:

Magistrates Courts

PROCEEDING:

Summary criminal trial

ORIGINATING COURT:

Mackay Magistrates Court

DELIVERED ON:

5th March 2020

DELIVERED AT:

Mackay

HEARING DATE:

10th December 2019

MAGISTRATE:

Acting Magistrate J M Aberdeen

ORDER:

Charge dismissed

CATCHWORDS:

PUBLIC NUISANCE – behaviour in disorderly or offensive or violent or threatening manner – customer of bank attending and complaining about withholding of funds by bank – whether conduct of customer infringing section 6 Summary Offences Act 2005 – principle in Melser v Police [1967] NZLR 437 (CA) per Turner J considered and applied.

COUNSEL:

Ms M Kurtz (for Queensland Police Service)

Defendant in person (not legally represented)

SOLICITORS:

REGISTRY: Mackay

MAG-00178429/19(1)

QUEENSLAND POLICE SERVICE

v

JOHN ROY McKENZIE

DECISION

  1. Mr John Roy McKENZIE (the Defendant) is before the Court charged with one (1) count of Committing a Public Nuisance offence[1], alleged to have been committed on the 17th September 2019.
  1. To this charge, Mr McKenzie (the Defendant) has entered a plea of Not Guilty.
  1. This charge constitutes a criminal offence. Consequently, the prosecution carries the responsibility to prove this charge beyond a reasonable doubt. That onus, which is a heavy one, does not shift to the Defendant at any time. The Defendant may, or may not, call or give evidence. Should he decline to do so, no adverse can be drawn against him. I note, also, that in this case the Defendant is not legally represented.

Background facts:

  1. During a brief opening, the prosecution particularised the Defendant’s conduct on the day in question as behaving in a disorderly and/or offensive and/or threatening and/or violent manner[2]. Four witnesses were called by the prosecution – Ms Rose (a bank customer service officer), Ms Newton (the branch manager), and police officers Aglio and Williamson.
  1. Ms Kurtz, for the prosecution, further particularised the case against the Defendant in that he was yelling, swearing, and being aggressive, as well as making a threat to kill the branch manager. In closing submissions, the prosecution further particularised the [or an] offence based upon an alleged statement by the Defendant when referring to the “slanty eye or nose person” whom he thought would respond to a call from him to the SPER call centre.
  1. At about midday on the 17th September 2019, Ms Rose was working at her place of employment, the Commonwealth Bank of Australia, Mt Pleasant (Mackay) Branch.
  1. The Defendant entered the bank, and walked up to the tellers’ area. Ms Rose stated that he asked her -

“Why are you holding my money? Give me my money”.[3]

Ms Rose said that normally she would identify people by asking for a signature. She must have done so in this case, because she said that the Defendant said –

“No, you can have my driver’s licence.”

Ms Rose then said that “because of his tone”, she thought that she would check his account – “get it done, get him out”.[4]

  1. She checked the Defendant’s account on her computer screen, and found that there was “a hold on his account of $1300”, and she tried to explain this to the Defendant. The Defendant, she said, “kept rambling about the [C]onstitution, and said –

“You have no right to that”.

  1. Ms Rose then said –

“Look, what I can do for you is there is a note on here for you to contact SPER and a reference number. You need to contact them…”.

  1. Ms Rose could not remember what the Defendant actually said after that. She was able to say that he stated –

“And why would I anyway. I would speak to some slanty-eye or nose person over there. No, just … You have no rights to keep my money. Just give me my money”.[5]

  1. By this stage, Ms Rose said, she was starting to feel very nervous, and a little bit frightened. She said that she “looked up at a ‘specialist’ who was in the branch, and that she’d [the specialist] had already got up to – started to see if I was okay because he was quite loud. And I – I looked at her – and because we’ve been working for quite some time together, she – she knew that I was not okay”[6].
  1. Ms Rose then explained that “he kept talking over [me] and I kept trying to explain and he leant forward at my – that particular branch, in the telling area, there’s clear Perspex. So he was leaning right into the Perspex and actually put his hand through and was tapping quite hard on the table – on the desk … talking about “You have no rights – the [C]onstitution” – I had no idea what he was talking about. I didn’t understand”.
  1. She then pushed he security alarm. The Defendant then said –

“I want to speak to the manager. I want to go into a closed office”.

The other teller, who was next to Ms Rose, said to the Defendant –

“No, sir. Sorry, it’s not safe for us to do so”.

  1. The branch manager then came out into the banking chamber. Ms Rose said that the manager tried to explain to the Defendant, “reiterate what I had said that … with the Commonwealth Bank, we have to give – if a Centrelink payment goes in, we have a 90 per cent rule, and I explained with him that – from my memory, it was about $3 that I could give him left out of that 90 per cent”.
  1. The Defendant then said –

“I want to speak to your manager. I want to rip her fucking head off”.[7]

  1. The manager then came out, and reiterated what Ms Rose had said. Ms Rose’s recollection was that the Defendant said –

“You’re just a puppet”.

  1. The Defendant then asked the manager for her business card; which the manager (Ms Newton) retrieved; she then walked around the front of the telling counter to where the Defendant was standing, and handed the card to the Defendant.
  2. The Defendant then left the branch.
  3. When asked how loud the Defendant’s voice was, Ms Rose said –

“He was very loud”.

She was asked further –

“Could you just describe his body language?”

She replied –

“It was … just very forceful, very, you know… stand up … straight … leaning forward … It was just very intimidating”.[8]

  1. Ms Rose further described the action of the Defendant with his hands, in that the Perspex barrier in front of her had an open section of about 30cm width, through which the Defendant had extended his hand, and was “with a couple of fingers just tapping…”.[9] And “…I just had no idea what he was going to do”.
  2. She added that she was nervous, anxious and frightened. After the Defendant had left the branch, she describes putting up her “Next Teller Please” sign, walking out the back, and bursting into tears.[10]
  3. Ms Rose was asked about the effects of the Defendant’s conduct upon her ability to perform her job that day. She explained –

“… I really couldn’t go out the front and serve anyone. Like, I really … I suffer from anxiety so … like, my anxiety went through the roof and I just – I just didn’t feel right”.[11]

  1. As to whether there were other people around, Ms Rose said –

“…I had, you know, my colleague … was standing next to me in the tellers’ area. I remember a lady with dark hair and … Deb who came from the front office and was watching but I was fixated on what Mr McKenzie was doing”.[12]

  1. The Defendant commenced his cross-examination with an apology to the witness.
  2. The Defendant made statements concerning what had happened a day, or three days, later when he came into the bank to close his account, but did not put any further propositions to Ms Rose.
  3. I asked Ms Rose as to whether a Centrelink benefit was being paid into the defendant’s account; and she confirmed that it was; she believed fortnightly.[13] She explained that there were two balances shown in respect of the Defendant’s account – an “account balance” and an “available balance”. She explained, with respect to SPER debts, that when it’s “SPERed or there’s a hold on funds for whatever reason, it is in the account balance, not the available balance –

“So, when SPER has the ability to put a hold on a certain amount of funds if they so wish. So – and that’s what the case was with Mr McKenzie’s… “.[14]

  1. On the day in question, Ms Rose advised, the Defendant had an available balance of “three dollars something”.
  2. Following the completion of Ms Rose’s evidence, the prosecution called Ms Newton, the manager of the Commonwealth Bank, Mt Pleasant Branch. Ms Newton gave evidence as follows –

“…I was actually at lunch, and I had a staff member walk past me and she said, ‘There’s a customer out the front who’s quite anxious.’ And I said, ‘Can you try and get Deb. I’m at lunch. Can you see if you can get Deb to try and look after the customer?’ So Deb came out and I sort of gave a few tips, because she’s just learning in the role. Anyway, she went out into the tellers with one of the staff members, and came back and she said, He doesn’t want to speak to me’…. ‘…he wants to speak to the branch manager’ “.[15]

“I then vacated the lunch room and then went into the back of house, because the client – I was advised that the customer was quite aggressive in his nature”.

  1. Ms Newton then went out to the area behind the teller’s counter. She introduced herself to the Defendant and said –

“…how may I help you?”

D: “Why are you holding my money?”

“I’d had a look, and there was a garnishee on the customer’s accounts. And I explained that…” (there was a garnishee on his account, which meant that there was $113 to be held, not to be accessible by the customer).

  1. She then continued –

“The customer vigorously thumped his hands on the counter and he said, “You have no right to hold my money.” And I said, “Well, we actually do. We have a relationship with the Commonwealth Government to hold funds for certain reasons.”

I said, “There is a phone number that you can certainly call to give your grievances.”

I said, “But we’re – we’re just the – the bank holding your funds, which you’ve been receiving from Centrelink, and I’m unable to provide you those funds today.”

During that time the customer became very forceful. There’s – between the teller and customers there’s a big clear perspex, which is a plastic safeguard, I suppose, for customers and for staff. And the customer started leaning into the perspex, to the point that it became of – could’ve been seen as an aggressive nature, because he was forcing his hand through the counter, because there’s a very small window in there. I – during that time the customer be – started using profanities, and in swear words”.[16]

  1. Ms Newton was unable to recall any of the words, other than that there was an “F-word” in there.
  2. She continued –

“..then I got read the riot act, as such, from the customer, around his rights, through the government. I stood there and listened to the customer, because I couldn’t respond to his accusations. I did at one point refer to him to the front door, because at the front door of any Commonwealth Bank we have a letter or a big sign to advise customers that all staff here deserve respect, and that if he continued to be aggressive in his nature, that I will be calling the police”.[17]

  1. Ms Newton told the Court that she had noticed a lady – apparently a customer – sitting in a seat in the public area. During the interaction with the Defendant, Ms Newton observed this lady move her chair some centimetres closer to the door of the bank.
  2. Ms Newton was able to confirm that the Defendant asked her for her business card; and that after she gave it to him, the Defendant left the bank.
  3. When asked by the prosecutor as to whether the Defendant was yelling or screaming things, Ms Newton described the volume of his voice as “just raised voice”.[18]
  4. When asked to describe how this event made her feel, Ms Newton responded –

“I have been in the bank this … week for 29 years, so I have had multiple occasions where I’ve had to deal with not very happy customers in the Commonwealth Bank. I would say me personally, yeah, I certainly wasn’t feeling the best, but I feel that I coped under the circumstances. At the end of the day, I’m the branch manager. I’m there for a reason. I’m there, as I said before, to support the staff and the customers. … I didn’t feel anxious or stressed around the event. I was just more concerned about the well-being of everyone else.”[19]

  1. Ms Newton was able to advise the Court that there were about four customers who were sitting in the bank at the relevant time. After the Defendant, she approached the lady who had moved her chair, and brought her into her (Ms Newton’s) office and made her a cup of tea or coffee. There were five staff in the bank at the time of the incident.
  2. The Defendant’s cross-examination of Ms Newton included his pointing out that he had asked to see the manager in private “instead of discussing it – my business in front of the whole bank”. Ms Newton agreed that that had been requested. She had declined, she stated “because I was concerned for my wellbeing in your mannerisms … and your body language” – “…you don’t need to get aggressive when you’re not happy with the answer”.[20]
  3. The following exchange took place –

D: …I said I was an upset customer?”

W: “Yes”.

D: Yes?

W: “Yeah, you were upset.”

D: Right. Not…Not at you individually. I was upset with the bank?”

W: “Yes”.

D: “And the bank’s way that they deal with this, yes?”

W: “Yes”.

D: “And when I found – and I – I did not threaten you personally. I did not threaten anyone to do anything to anyone that you saw…?”

W: “That’s right”.

D: “… while you and I were dealing?”

W: “Yes”.

D: “So I never threatened to rip anyone’s head off?”

W: “You did”.

D: “But you just, you just…”.

Bench: Perhaps if I can interpose there. Did you actually hear that yourself?”

W: “In relation to ripping my head off, he said it to me through … when I turned up there. He said ‘Are you the person I’m going to rip my head off’ “.[21]

  1. Ms Newton was able to confirm that the Defendant had called her phone number the following day, and, as she was not available to take the call, left an apology for his conduct on her message system. She stated that she was not at work when the Defendant brought his “card” in, and that she was unable to confirm to whom he had spoken on that occasion.
  2. Finally, the defendant asked Ms Newton –

D: “Okay. So, I never threatened you?”

W: “No”.

D: “You never saw me threaten anyone in the bank. You never saw me threaten, like, physically threaten anyone in the bank?”

W: “No”.[22]

  1. Ms Newton confirmed, upon my inquiry, that two attempts had been made to download CCTV footage from within the bank, which should have been able to capture the banking chambers at the time of the subject incident, but that both attempts had been unsuccessful.
  2. The next witness called was the investigating police officer, Senior Constable Aglio. The Senior Constable (at that time an Acting Sergeant) had attended the bank after the Defendant had left – perhaps about a half-hour after his departure.[23]
  3. After speaking with Ms Rose and Ms Newton, the officer had left the bank, and shortly afterwards terminated her shift.
  4. The following day – the 18th September – she, along with other police officers, attended the Defendant’s residence. There was some disagreement from the Defendant as to just where the officers were located during their attendance, and the sequence of the discussion which took place between Senior Constable Aglio and the Defendant.
  5. Following the Senior Constable was Constable Williamson. Constable Williamson recorded the interaction at the door of the Defendant’s home on the 18th December 2019, and a DVD of that interaction was played to the Court, and received into evidence[24]. Aside from proving the DVD (which was played[25]), Constable Williamson added nothing of substance to the evidence.

Consideration:

  1. Mr McKenzie chose not to give evidence himself. That is his right. In trying to ascertain facts, however, it does make the Court’s task more difficult. In spite of that, I must examine the evidence given by the witnesses who did testify, and draw whatever reasonable inferences are open on that evidence.
  2. What did Mr McKenzie do? –
  1. He entered the bank during business hours
  2. He approached Ms Rose in her teller position
  3. He commenced his exchange with Ms Rose by asking, in a loud voice “Why are you holding my money?”, and making the demand “Give me my money”.
  1. I have no doubt that, from the outset, Ms Rose was rattled by the nature of Mr McKenzie’s approach.
  2. Mr McKenzie is a middle-aged man, of solid build, and he speaks quite loudly. This was apparent to me during the hearing. Although the volume of his speech cannot be gleaned from the transcript, it will certainly be apparent on the Court recordings. It can be noted from the transcript that Mr McKenzie has a habit of speaking over other people. Over the course of a hearing which lasted about 3 hours, these mannerisms were clear to me. Further, I would describe his general presentation - without in any way intending to be critical of him – as animated, and possibly even confronting; especially, perhaps, to someone who had not encountered him before.
  3. Ms Rose, on the other hand, presented as a very mild person, who gave the impression of being well out of her “comfort zone” while in the witness box. Her evidence was given freely, and although she may have given some incidents out of sequence[26], I am inclined to accept the general content of her testimony. Ms Rose indicated, during her evidence that she suffered from anxiety; and her personal presentation, to my mind, was consistent with such a personality. A good deal of her evidence she gave in the form of first-person conversation, and some she gave by way of a summary of her interpretation of what she heard. Generally, I accept that what she deposed to occurred; while there may be some errors, I think that, overall, her evidence is a good reflection of the nature of the conversation which took place.
  4. I accept that Mr McKenzie –
  1. Was rambling about the Constitution
  2. When suggested to him that he call SPER, made a remark about “speak to some slanty-eye or nose person”
  3. Said “You have no rights to keep my money – just give me my money”
  4. Leaned forward to be close to the perspex partition
  5. At some stage during the conversation, he put his through the opening in the perspex, and tapped his fingers quite audibly (“hard”) on the teller’s counter.
  1. During Mr McKenzie’s final submission to the Court, he did advert to some matters which could be called [small “c”] constitutional; although any such issues were not, on my understanding, made formal facets of his submissions. I also accept that, in the circumstances which then prevailed, Mr McKenzie rejected the suggestion that he should call SPER. I have no doubt that, more than once over the course of the incident, he told bank staff that they had no right to hold his money, and repeatedly requested his money.
  2. I accept that Mr McKenzie asked to see the manager; and that he requested to go into a closed office to do so. I also accept that he said words to the effect of “I want to speak to your manager, I want to rip her f***ing head off”.
  3. I think it likely that Mr McKenzie, when he gained no (as it seemed to him) satisfaction from Ms Rose, that he demanded to see the manager. He requested that that be in private. I do not accept that his request for privacy was aimed at gaining an opportunity to harm or threaten any staff member. I think it much more likely that he wished to raise his concerns about his money out of public earshot.
  4. Accepting, as I do, that Mr McKenzie did speak of “ripping the manager’s head off”, it is necessary to look at that statement closely. Ms Newton, the manager, in her evidence, throws considerable light on this point. After agreeing with Mr McKenzie’s proposition that he did not threaten any staff member in her presence, he then put the proposition that she did not “threaten to rip anyone’s head off”. Ms Newton responded, simply saying “You did”. She explained that when she arrived in the telling area, he said to her –

“Are you the person I’m going to rip my [sic?] head off?”

  1. The statement, to my way of thinking, contains an implied recognition that “ripping someone’s head off” – that particular description – arose out of something which had been said earlier. I think it corroborates Ms Rose’s evidence on the point. The question for me, however, is what should I make of it?[27]
  2. I don’t accept, for a moment, that Mr McKenzie at any time intended to kill anybody. Nor do I accept that he intended to give that impression to anyone in the bank.
  3. I certainly accept that he was very upset that his funds had been “stopped” by the bank. It is clear to me, from the evidence of Ms Rose, that the funds paid into his bank were the proceeds of a Centrelink benefit. The offer of $3-odd would not have improved his demeanour. Although the funds in his account seemed to be very modest (Ms Newton mentioned that $113 was to be held[28]), they may well, to his perception, have been substantial, having regard to his financial position[29].
  4. I also accept that the Defendant believed that the bank was holding his funds without authority[30].
  5. These subjective considerations have assisted to persuade me that Mr McKenzie was likely to make the statements attributed to him by the bank witnesses.
  6. I cannot overlook Ms Newton’s evidence to the prosecutor that –

“I didn’t feel anxious or stressed around the event. I was just more concerned about the wellbeing of everyone else.”

This evidence was supported by her comments during the defendant’s cross-examination referred to above.

  1. When it comes to the proper interpretation and context of the “ripping the head off” statement, Ms Newton may be in the best position to assess whether or not it was uttered as a threat – and if not, how should it be viewed?
  2. The appropriate interpretation may again be found in the evidence of Ms Newton, where she said, speaking of her interaction with Mr McKenzie[31]

“And then I got read the riot act, as such, from the customer, around his rights, through the government. I stood there and listened to the customer, because I couldn’t respond to his allegations…”

  1. No reasonable person would have any doubt as to what “reading the Riot Act” means, at least in common parlance. It has nothing whatsoever to do with the 1715 statute; but refers to the (verbal, and perhaps gesticular) berating of a person, usually in respect of a state of affairs, or some act or omission, of an especially serious nature, not to the liking of the speaker[32].
  2. This, in my opinion, is what was meant by the expression “rip your head off”, when used by the Defendant on 17th September[33].
  3. If one focuses upon what the Defendant did when the manager arrived, this is precisely what happened – he “read the riot act” to Ms Newton –i.e., he said his piece, as the manager listened; and he then obtained her business card, and left the bank.
  4. The evidence reveals, as well, that he called the manager the following day and left her a message containing his apology for his behaviour.
  5. It is clear to me that Mr McKenzie was aware that his conduct at the bank had been unacceptable, and unnecessary.
  6. Whether it was also criminal is the question I must decide.

The applicable law:

  1. In opening the case for the prosecution case, Ms Kurtz referred, by way of particulars, inter alia to “making a threat to kill”. In her closing address, Ms Kurtz submitted that, if the Court was not satisfied that the Defendant’s conduct was “threatening”, then it could find that it was “disorderly”.[34]
  2. In my opinion, to characterize the statement “I want to rip to rip her fucking head off” as a threat to kill, taken in the context of the circumstances, and all that happened, is to advance an interpretation which the language simply cannot bear. It was not taken that way by Ms Newton, who was, one can assume, to be the target of that comment.
  3. The prosecutor referred to a number of authorities which might assist the Court in reaching a conclusion as to the legal characterisation of Mr McKenzie’s behaviour that afternoon[35]. I have perused all of those authorities; and I have looked at others which were not cited to me. Mr McKenzie, as one might expect (being without legal representation), advanced no legal authorities in this respect.

“Disorderly”:

  1. In Melser v Police[36], four people chained themselves to pillars at the entrance to Parliament House in New Zealand, by way of protest against American participation in the Vietnam War. They were charged and convicted before a magistrate of disorderly behaviour. In a first-level appeal, Tompkins J upheld the magistrate’s decision. In doing so, he referred, at some length, to the judgment of Henry J, in Police v Christie[37], which included the concept that “the conduct must be serious enough to incur the sanction of a criminal statute”.[38]
  2. On further appeal to the Court of Appeal, the decision of the Judge at first appeal was upheld. The judgment of Turner J focussed upon the nature of the question before the Court – his Honour characterised the appeal (and what constituted ‘disorderly behaviour’) as “a conclusion of mixed law and fact”, and as “a question of degree”[39]. The “task of the law” (suggested McCarthy J[40]) “was to define the limitations”.
  3. In the opinion of Turner J[41] -

“Disorderly conduct is conduct which is disorderly. It is conduct which, while [i] sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more – it must, in my opinion [ii] tend to annoy or insult such persons as are faced with it – [iii] and sufficiently deeply or seriously to warrant the interference of the criminal law”.

  1. This “definition”, proffered by Turner J, has received substantial attention within Queensland criminal jurisprudence[42].
  2. In Coleman v Power, Gleeson CJ, although in dissent, observed[43]

“Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same is true of insulting behaviour or speech. In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person’s feelings should involve a criminal offence.”

  1. I am not at all sure that Gleeson CJ did not have in mind, in the final sentence above, a similar consideration to that adopted by Turner J in Melser, i.e. that the conduct must warrant intervention by the criminal law.
  2. Even accepting that the Defendant’s conduct was “ill-mannered”, and (at least in respect of the “rip” remark) in “bad taste”, and that it may have annoyed a person, or people, in the bank at the time[44], was it sufficiently deep or serious to warrant the intervention of the criminal law?
  3. As I have mentioned, Ms Kurtz provided to me post-trial the decision of his Honour Judge McGill SC in Madsen v QPS[45]. That is a decision which, in its circumstances, has some parallels with the present case, and I am indebted to Ms Kurtz for drawing the case to my attention. The case involved an appellant who entered a Centrelink office, during business hours, and at a time when there were a number of other clients in attendance, waiting to be interviewed.
  4. At about 9:00am, the appellant entered the office, gave a “Nazi salute”, and then proceeded to the front counter. There she remained for about 20 minutes. During that time, she executed one – perhaps two – further “Nazi salutes”, and spoke, in a loud voice, about various matters. Some of these matters were described as “vulgar”, in that she referred to herself as having been raped, that her daughter had been raped, and she made some reference to “oral sex”[46].
  5. It was contended that the appellant’s conduct was either disorderly or offensive. The learned Magistrate found that the appellant had behaved in an offensive manner, and she was convicted. That conviction, although challenged, was not disturbed on appeal.
  6. The significance of the case is that it provides an illustration of questionable conduct in commercial premises, open to and used by the public, and which were (it would seem) very similar in character to the banking premises involved in this case[47].
  7. While accepting that Madsen’s case fell on one side of the admittedly-indistinct “line” separating criminal from non-criminal conduct, I am not convinced that the present case should be similarly categorised. I find a significant distinction between the conduct of the defendant in this case, and that of the appellant in Madsen.
  8. Upon consideration of the whole of the evidence, I am not satisfied, beyond reasonable doubt, that the conduct of the Defendant on this day falls within the proper scope of “disorderly conduct” under section 6 of the Summary Offences Act 2005.

“Offensive”:

  1. My conclusions as to whether or not the Defendant’s conduct was “offensive” include the same considerations to which I have already referred.
  2. I should specifically mention that I have taken into account, in this respect, the use of the expletive “f***ing”, in the context of “ripping the manager’s f***ing head off”. Taken in its context, it is my opinion that the presence of this particular word does not, of its own weight, transform the Defendant’s conduct into an offence punishable under section 6.
  3. Ms Kurtz sought to add a further particular of “offensive conduct” during her final submission, namely the Defendant’s reference to “slanty eye or nose person”, which I take to be a reference to the person who the Defendant thought would answer any call he made to SPER.
  4. The older authorities seem to erect a fairly-high bar in cases of “offensive” behaviour. In Worcester v Smith, O’Brien J ruled[48]

“Behaviour, to be ‘offensive’ within the meaning of [section 25] must, in my opinion, be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.”

  1. This explanation was generally accepted by Kerr J in Ball v McIntyre. His Honour referred also to Anderson v Kynaston[49], and further observed[50]

“The Court said that the section of the Victorian Act, which is in similar terms to that under consideration here, and its associated sections are concerned with the preservation of order and decorum in streets and other public places. The Court went on to say that offensiveness may sometimes include that which is hurtful or improper. Care must be exercised before a substitution is made of either of these words for the word actually used. "Offensive" refers to something, so the Court says, much more direct than conduct which may ultimately turn out in a broad sense to be hurtful to a person's future disposition or character.

The Court also said that "improper" has a much wider meaning than "offensive". What is offensive generally will be improper, but it does not follow that what is improper is offensive. The judgment then made the point that all conduct which is blameworthy and therefore improper does not come within the word "offensive". It follows from what was said in this case, and I agree with and adopt it, that some conduct which is hurtful or blameworthy or improper is not offensive within the meaning of the section. What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behaviour if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend .Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill-advised, hurtful, not proper conduct.

People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section.”

  1. Both of these cases involved “political protest” – the first against the Korean War, and the second against the war in Vietnam. I think they have to be read against that background[51].
  1. The Queensland authorities are very clear that behaviour, involving language and not uncommonly unruly conduct, falls within the scope of “offensive” behaviour[52].
  2. Once again, taking into account all of the circumstances, I don’t believe the conduct of the Defendant reached the standard necessary to constitute “offensive” conduct under section 6 – “blameworthy” or “improper” might be apt descriptives; but that does not necessarily make it “offensive”.
  3. With respect to the comment concerning the SPER call centre, I agree that such language was inappropriate in the circumstances; but I do not consider that it was “offensive”. Were the person referred to by the Defendant standing in front of him at the time the statement was made, my conclusion might be different[53].

“Violent”:

  1. The expression “violent”, in my opinion, encompasses the use of force against persons or property. Depending upon the context, it might extend to the threatening of imminent force. Against that extended meaning, however, is the consideration that section 6 provides a specific offence of “threatening” behaviour.
  2. There is little clear assistance in the cases with the meaning of the term in the present context[54].
  3. In Antonelli v Secretary of State for Trade[55], the Court referred, with apparent approval, to the definition contained in the Oxford English Dictionary -

“The definition of ‘violence’ from the Oxford English Dictionary cited by the judge was: ‘The exercise of physical force so as to inflict injury on, or cause damage to, persons or property’. The question is whether violence was used in this sense in the subsection”.

  1. I think a similar approach is appropriate in considering the meaning of “violent” in section 6.
  2. The only use of force referred to in the present case was that of the Defendant loudly tapping the tellers’ counter with his fingers (Ms Rose); although there is a divergent description provided by Ms Newton, namely “The customer vigorously thumped his hands on the counter”[56]. I am not sure whether or not the witnesses are referring to the same incident, and the possible divergence was not explored at trial. It is possible, however, that both events happened, at different times, during the Defendant’s engagement with the banking staff.
  3. Whichever may be the case, there is no suggestion of any damage or injury[57]; and if a person were to tap his finger on a table, or even hit the table with his closed fist, in order make, or accentuate, a point in his argument, I believe it would be a misuse of language to draw such conduct within the meaning of “violent behaviour” in section 6.

“Threatening”:

  1. There is a consistent line of authority with respect to the term “threaten” where it is used in a criminal statute.
  2. A recent example is the decision of the Queensland Court of Appeal in R v Enright[58]. In that case the appellant was convicted of an offence under section 119B of the Criminal Code, which deals with retaliation against judicial officers. In a number of recorded telephone calls from prison, to members of his family, the appellant had stated that he was going to kill the sentencing Acting Magistrate.
  3. His Honour Justice Boddice (with whom Justices Phillipides and McMurdo concurred) said[59] -

“The issue for the jury was not whether the words constituted a threat but whether the words, as uttered by the appellant in the context of the particular circumstances in which the appellant found himself, amounted to a threat to cause injury intended to be taken seriously, or were words said in temper.

In this respect, the observations of Olsson J in Carter v R (1994) 176 LSJS 112, 118, were apposite:

‘… in the setting of this case, it was incumbent on the trial judge to make it clear to the jury that … if it remained a reasonable possibility that, in speaking as he did, the appellant was doing no more than merely unburden his feelings … the offence was not made out’.”

[Emphasis added]

  1. I have already indicated above my findings that the words spoken by the Defendant, about ripping the manager’s head off, were used in a particular sense, namely that he intended to berate the manager for “wrongfully” (as he believed) disallowing him to withdraw the funds in his account. It is clear to me that the words were not a serious threat to kill or do any physical harm, and were never intended to be such.
  2. Accordingly, I find that his language was not “threatening” within the meaning of section 6[60].
  3. I have given particular consideration to the involvement of Ms Rose in this incident. I have no doubt whatsoever that she found this incident to be very distressing. After it was over, she went to “back of house”, and broke down and cried. The effects of the incident did impact upon her work later in the day.
  4. On the other hand, Ms Newton, the branch manager, was not so affected. I expect that she had had encounters of this nature in her lengthy 29-year experience as a bank officer.
  5. I have related the concept of a “reasonable person”, in the course of reaching a decision in this matter, against the involvement and reaction of Ms Newton. I think that Ms Newton’s reaction and conduct accurately portrays the response of a reasonable or ordinary person to what occurred that afternoon. It was a customer’s complaint about the banking provided, and in the circumstances, the manager’s response was reasonable and proportionate. That Ms Newton’s reaction to the Defendant’s behaviour was quite different to the effect upon Ms Rose is abundantly clear. Should that difference affect, in any way, my determination of this charge?
  6. In R v Garwood[61], the appellant had been convicted of blackmail, i.e. demanding property with menaces. The victim of the offence was a Mr Sayed. After retiring to consider their verdict, the jury sent a note to the learned Recorder trying the case, to the following effect –

“We think Sayed is probably rather timid – ie, not normally stable (whatever that is). Therefore Garwood would appear more menacing than perhaps he was. If this seemed menacing to Sayed, does this amount to ‘menace’ despite the fact that others may not have found it menacing?”

  1. The Court of Appeal thereafter instanced two situations where a further jury direction as to the meaning of “menaces” might be required[62]

“The first is where the threats might affect the mind of an ordinary person of normal stability but did not affect the person actually addressed. In such circumstances that would amount to a sufficient menace: see R v Clear [1968] 1 QB 670 (CA).

The second situation is where the threats in fact affected the mind of the victim, although they would not have affected the mind of a person of normal stability. In that case, in our judgment, the existence of menaces is proved providing that the accused man was aware of the likely effect of his actions upon the victim.”

[Emphasis added]

  1. Ms Rose frankly[63] told the Court she suffered from anxiety. I think under the circumstances the approach that I have taken, by focussing upon the effect upon an “ordinary person of normal stability”[64] is the appropriate course to take.
  2. There is no evidence before me upon which I could find, or infer, that the Defendant was, or even should have been, aware that Ms Rose may have been more susceptible to distress as a result of his conduct.             
  3. It might be, in view of my findings that Mr McKenzie’s conduct did not constitute “threats”, that this point is moot. I mention it simply to make it clear that I have had regard to Ms Rose’s position in this matter.

Other elements of the Charge:

  1. I accept the submissions by Ms Kurtz, to the effect that the conduct in question took place in a “public place”. The fact that Ms Rose and Ms Newton were, for part of the time, behind the tellers’ counter does not, to my mind, affect that conclusion.
  2. It is also an element of the offence the relevant 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. This element has been considered in previous decisions. It mightn’t be the case that people sitting in a bank, waiting for a bank manager, or perhaps a loans officer, necessarily “enjoy” being in that public place. But the correct approach, in my opinion, is that of Senior Judge Skoien in Green v Ashton[65] -

The concept of an on-duty police officer ‘enjoying’ a public street may at first blush seem strange but to my mind “enjoyment” does not necessitate the obtaining of actual pleasure by the police officer from his being present in the street.  A citizen ‘enjoys’ many social rights without necessarily being conscious of actual pleasure from the possession of those rights.  Enjoyment of a public street rather means the ability to be in it free of unpleasantness or, as the second reading speech (para [4] above) puts it, “free of unacceptable annoyance”.

  1. Without evidence from the dark-haired lady observed by the staff to have been sitting in the bank at the time, and who is said to have shifted her chair “centimetres”, I am not prepared to make any finding as to how she reacted to, or viewed, the events that took place. Such evidence from her, or from another customer, might have been very helpful to consider when trying to re-construct whether or not a reasonable or ordinary person would have thought that things may have gone too far.
  2. But, in any event, I find that the bank officers – Ms Newton and Ms Rose and their colleagues who witnessed the transaction – were “members of the public” within the meaning of section 6(2)(b). They may well have been simply doing their respective jobs - for some time, at least, behind the telling counter. But, like the police officers in Green v Ashton, I am unable to see why the protection against criminal disorder should not extend to staff as well as customers.

Decision:

  1. I find that Mr McKenzie, on 17th September 2019, did not commit a “public nuisance” offence. I am not satisfied, beyond reasonable doubt, that his conduct, considered as a whole, against the circumstances, constituted disorderly,              offensive, violent, or threatening behaviour, within the meaning of section 6 of the Summary Offences Act 2005.
  2. I find Mr McKenzie to be Not Guilty.
  3. The charge is dismissed, and he is discharged.

J M Aberdeen

Acting Magistrate

MACKAY

5th March 2020.

Footnotes

[1] Under section 6 of the Summary Offences Act 2005 – see Annexure “A”.

[2] The relevant law is considered below.

[3] Transcript 1-13 [19].

[4] T/s 1-13 [25].

[5] T/s 1-13 [31].

[6] T/s 1-13 [34].

[7] T/s 1-14 [5].

[8] T/s 1-15 [0-10].

[9] T/s 1-15 [27].

[10] T/s 1-16 [1].

[11] T/s 1-16 [16].

[12] T/s 1-16 [22].

[13] T/s from 1-19 [36].

[14] T/s 1-20 from [5].

[15] T/s 1-25 [27].

[16] T/s 1-26 from [19].

[17] T/s 1-26 [38].

[18] T/s 1-29 [23].

[19] T/s 1-29 [27].

[20] T/s 1-31 [28].

[21] T/s 1-32 from [5].

[22] T/s 1-33 [42].

[23] T/s 1-34 [8].

[24] Exhibit 1.

[25] Parts of which were extremely difficult to interpret, or understand. I did gain the impression that Mr McKenzie was a person who would have no hesitation in asserting his rights in any particular situation where such considerations, to his mind, were involved.

[26] eg, her description of when the manager, Ms Newton, arrived in her teller area.

[27] I have not overlooked the fact that this evidence of this statement emerged for the first time in cross-examination by Mr McKenzie. I have given careful consideration to this question; but the “fit” with the earlier evidence of Ms Rose, and the unusual nature of the question posed by Mr McKenzie “Are you the person ”, persuade me that the attributed statement – or something very much like it – was indeed spoken.

[28] T/s 1-26 [16].

[29] The absence of evidence from the Defendant prevents any firm finding about this.

[30] I was unable, on the evidence, to make any finding about this; but in any event, I do not believe that the legal position – whatever that may have been – plays any real part in determining the questions I must address.

[31] T/s 1-26 [38].

[32] Brewer’s Dictionary of Phrase and Fable (Centenary Edition, 1978) at 921, advises “Figuratively to read the riot act is to check noise, commotion and misbehaviour of children and others by vigorous and forceful protests, to threaten them with the consequences of disobedience, etc.”.

[33] A similar, but more uncouth, analogy (at least colloquially) might be to “tear [or rip] someone a new [one]”.

[34] T/s 1-78.

[35] Namely Coleman v Power (2004) 220 CLR 1; Melser v Police [1967] NZLR 437 (CA); and Butterworth v Geddes (2006) 26 Qld Lawyer 274. Ms Kurtz also forwarded to the Registry, on the 13 December 2019, a copy of Madsen v QPS [2006] QDC 505. This communication was not drawn to my attention until 28 February 2020, but I have read the case. While my initial reaction to Melser v Police was that, at 53 years of age, it may have been of questionable assistance, a quick search on LawCite indicates it continues to be cited, with approval, by Australasian Courts up to the present time. Indeed, in CRC v Taylor (2019) WASC 187, Smith J cited the view, expressed in Heanes v Herangi (2007) 175 A Crim R 175, that it was “as relevant today under the new legislation as it was in the past” (at [40]).

[36] [1967] NZLR 437.

[37] [1962] NZLR 1109.

[38] At [1967] NZLR 439 [38].

[39] Ibid at 444 [11] to [17].

[40] Ibid at 445 [54].

[41] Ibid at 444 [35].

[42] See Couchy v Guthrie [2005] QDC 350 at [16] (Samios DCJ); Dillon v Byrne (1972) 66 QJPR 112 at 132-133 (ActgDCJ Gibney); Andrews v Rockley [2008] QDC 104 at [18] (Rackemann DCJ); Harvey v QPS [2017] QDC 310 at [65] and [66] (Smith DCJA); and see A West, “What is ‘Disorderly Conduct’?” (2006) 26 Qld Lawyer 274. Compare Couchy v Birchley [2005] QDC 334 at [36]. Approval of Turner J’s approach is not unique to Queensland: see eg Watson v Trenerry (1998) 145 FLR 159 at 160 (NTCA); Heanes v Herangi (2007) 175 A Crim R 175 at [153], citing Coleman v Power.

[43] (2004) 220 CLR 1 at [12]. See also Monis v The Queen (2011) 256 FLR 28 at [72] (offensive).

[44] I have in mind particularly the dark-haired lady who moved her chair centimetres, although I am cautious about finding, to the necessary standard of satisfaction, a causal connection between the Defendant’s behaviour, and the moving of her chair - it comes very close to speculation: cf Couchy v Birchley, cited above, at [48] to [51].

[45] [2006] QDC 505.

[46] No details were provided in the appellate judgment as to the actual content of these pronouncements.

[47] This type of case had been mentioned during interaction between the prosecution and the Court during the final submissions.

[48] [1951] VLR 316 at 318.

[49] [1924] VLR 214.

[50] (1966) 9 FLR 237 at 241.

[51] Although his Honour Judge Rackemann applied these descriptions of “offensive” in a case involving naked sunbathing: Andrews v Rockley [2008] QDC 104 at [18].

[52] See eg Butterworth v Geddes (2006) 26 Qld Lawyer 274; Kris v Tramacchi [2006] QDC 035; Madsen v QPS, cited above.

[53] In this respect, I think there is force in O’Brien J’s comment in Worcester v Smith, cited above, at 318: “Under a similar Act in New South Wales, it has been held that the offence of using insulting words in a public place is not committed unless the words are insulting to some person present when they are uttered, either because they are insulting to him personally or because he is related in such a way to the person about whom they are uttered that he would reasonably resent them as insulting - Ex parte Breen, (1918) 18 SR (NSW) 1; Lendrum v. Campbell (1932) 32 SR (NSW) 499; see also Wragge v. Pritchard (1930) 30 SR (NSW)279. I think a like meaning should be given to the word "offensive" in this section.”

[54] There are many authorities involving consideration of expressions such as “serious violent [offender]”, or “domestic violence”, which provide little assistance here.

[55] [1998] QB 948, at 961 C-D.

[56] T/s 1-26 [19].

[57] Were a heavily intoxicated person to punch into a brick wall outside a nightclub in the early hours of the morning, I would be wary in finding such conduct, although no damage was caused (except perhaps to the subject’s own hand), was not violent - it could reasonably, in some circumstances, be seen as violent or threatening behaviour.

[58] [2020] QCA 6.

[59] At [30] – [31].

[60] And bearing in mind that the case was conducted by the prosecution on the basis that the Defendant had uttered a “threat to kill”, and not a threat to berate, or, as the witness described it, “to read the riot act”.

[61] [1987] 1 WLR 319 (CA).

[62] At 322 A-B.

[63] And very fairly.

[64] To use the (quaint) terminology of the Court of Appeal and semble the learned Recorder, in Garwood.

[65] [2006] QDC 008 at [17]. See also Couchy v Birchley [2005] QDC 334 at [50]. One might question whether “unacceptable annoyance” is used in contradistinction to “acceptable annoyance”, whatever the latter may be: see extract in para [3] in Green’s case.

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v John Roy McKenzie

  • Shortened Case Name:

    Queensland Police Service v McKenzie

  • MNC:

    [2020] QMC 3

  • Court:

    QMC

  • Judge(s):

    A/Magistrate Aberdeen

  • Date:

    05 Mar 2020

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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