Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

Rowe v Kemper

 

[2008] QCA 175

Reported at [2009] 1 Qd R 247

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Rowe v Kemper [2008] QCA 175

PARTIES:

ROWE, Bruce James
(applicant/appellant)
v
KEMPER, Robert
(respondent)

FILE NO/S:

CA No 236 of 2007

DC No 3302 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 February 2008

JUDGES:

McMurdo P, Holmes JA and Mackenzie AJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant leave to appeal
2. Allow the appeal

3. Set aside order of the District Court dismissing appeal

    against convictions

4. Quash the convictions for contravening a direction and

    obstruction and enter verdicts of acquittal

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER ACTING IN EXECUTION OF DUTY – ACTING WITHOUT WARRANT – where applicant was escorted out of a public toilet by police after failing to leave at the request of a cleaner – where applicant was directed to leave the Queen Street Mall for eight hours, and was subsequently arrested and convicted on charges of contravening that direction and obstructing the arresting officer in the course of his duties – whether the arresting officer had a reasonable suspicion in relation to the applicant for the purposes of giving a direction – whether the giving of the direction was reasonable and lawful in the circumstances

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST PEACE AND PUBLIC ORDER – ASSAULTING, RESISTING, HINDERING OR OBSTRUCTING POLICE OFFICER – OFFICER ACTING IN EXECUTION OF DUTY – ACTING WITHOUT WARRANT – where arresting officer did not warn applicant that non-compliance with a direction was an offence in the absence of a reasonable excuse – where no evidence that it was impracticable to give such a warning – whether applicant had sufficient opportunity to comply with the direction – whether direction was contravened – whether arresting officer had  an actual and reasonable suspicion that an offence had been committed for the purposes of the obstruction charge

District Court of Queensland Act 1967 (Qld), s 118, s 119

Justices Act 1886 (Qld), s 222, s 223

Penalties and Sentences Act 1992 (Qld), s 19

Police Powers and Responsibilities Act 2000 (Qld), s 7, s 37, s 39, s 198, s 391, s 394 s 444, s 445(2)

Coleman v Greenland, Donaldson, Powers, etc & The State of Queensland [2004] QSC 037, discussed

Courtney v Thomson [2007] QCA 49, applied

Cox v Robinson [2001] 2 Qd R 261; [2000] QCA 454, discussed

Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257; [2008] HCA 13, 16 April  2008, cited

E (a Child) v The Queen (1994) 76 A Crim R 343, cited

Ferguson v State of Queensland & Anor [2007] QSC 322, applied

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

Police v Christie [1962] NZLR 1109, cited

Pringle v Everingham [2006] NSWCA 195, cited

Rowe v Kemper [2007] QDC 187, not followed

R v Smallwood & Attorney-General of Queensland [1997] QCA 91, cited

Tucs v Manley (1985) 62 ALR 460, cited

Veivers v Roberts; ex parte Veivers [1980] Qd R 226, distinguished

COUNSEL:

J H Dalton SC, with K A Mellifont, for the applicant

P J Alsbury for the respondent

SOLICITORS:

Queensland Public Interest Law Clearing House for the appellant

Director of Public Prosecutions (Queensland) for the respondent

McMURDO P: 

  1. This case highlights the difficulty police officers often face in determining if, when, and how to exercise their "move-on" power under the Police Powers and Responsibilities Act 2000 (Qld) ("the Act")[1] in respect of members of the public behaving in a non-conforming manner.  It is an application for leave to appeal from a District Court judge's decision dismissing the applicant, Mr Rowe's, appeal against findings of guilt in the Magistrates Court.  He was found guilty of an offence against s 445(2) of the Act[2] (contravening a police direction given under the Act) and of an offence against s 444(1) of the Act[3] (obstructing the respondent, Constable Kemper, in the performance of his duties).  Mr Rowe, who had no prior convictions, was released absolutely without conviction on each offence under s 19(1)(a) Penalties and Sentences Act 1992.

Orders

  1. I agree with Holmes JA that the application for leave to appeal should be granted, the appeal allowed and the order of the District Court set aside. Instead, the appeal to the District Court should be allowed, the findings of guilt recorded for both offences in the Magistrates Court should be set aside and verdicts of acquittal should be entered on both counts. The relevant facts, issues and legislative provisions have been set out by Holmes JA so that my reasons for these orders may be stated more briefly than otherwise. 

The application for leave to appeal

  1. The appeal to the District Court judge under s 222 Justices Act 1886 was by way of rehearing: see s 223 of that Act.  The District Court judge was required to make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate's view.  Although the magistrate had the benefit of seeing the police officers give evidence, that advantage is not as significant as in many cases because the crucial events were, as Constable Kemper agreed, recorded on the audio tape.  This Court, like both the magistrate and the District Court judge, also has the advantage of the video tape of the events surrounding Constable Kemper's arrest of Mr Rowe.  If the application for leave to appeal under s 118(3) District Court of Queensland Act 1967 is granted, the appeal to this Court is an appeal in the strict sense and not by way of rehearing: see s 118 and especially s 118(9).  Section 119 of that Act provides:

"Jurisdiction of Court of Appeal

119  (1) On the hearing of an appeal the Court of Appeal shall have power to draw inferences of fact from facts found by the judge or jury, or from admitted facts or facts not disputed provided that where the appeal is not by way of rehearing such inferences shall not be inconsistent with the findings of the judge or jury.

(2) On the hearing of any appeal the Court of Appeal—  

  1. may order a new trial on such terms as the court thinks just; and
  1. may order judgment to be entered for any party, or may make any other order, on such terms as the Court of Appeal thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties; and
  1. may make such order with respect to the costs of the appeal as it thinks proper;

and every such order shall be final."

  1. The District Court judge considered that the magistrate:  

"… could be satisfied the behaviour of [Mr Rowe] (including aggressive, quarrelsome and threatening behaviour) was interfering with the comfort of other people in the place, including Mr Doman and the police officers because the learned Magistrate could act on the evidence of Mr Doman and the police officers about [Mr Rowe's] behaviour.

Nothing in the tape-recording or video requires any different conclusions to be reached in this case.

In my opinion, it was open to the learned Magistrate to conclude beyond reasonable doubt it was reasonable to give the direction."[4]

  1. In taking this approach on the hearing of the appeal under s 222 Justices Act, his Honour did not conduct a real review of the evidence drawing his own inferences and conclusions as he was required to do: Fox v Percy;[5] Warren v Coombes.[6]  This amounted to an error of law requiring this Court's intervention to correct an injustice, namely, Mr Rowe's appeal to the District Court was not conducted according to law.  His application for leave to appeal to this Court should be granted.  In determining that appeal, s 119(1) does not prevent this Court from now doing what the District Court judge should have done on the hearing of the appeal under s 222 Justices Act.  We should make our own determination of relevant facts in issue from the evidence, giving proper deference to the magistrate's view: cf Dwyer v Calco Timbers Pty Ltd.[7]  This is particularly appropriate in this case because most of the events surrounding the charged offences were recorded on audio and video tape.

The offence of contravening a police direction

The basis for the direction

  1. A police officer may exercise the power under s 39 of the Act[8] to give "any direction that is reasonable in the circumstances" to a person "doing a relevant act".  A "relevant act" includes where a police officer reasonably suspects a person's behaviour falls within one of the behaviours described in s 37(1)(a) to (d).[9]  It follows from the clear terms of s 37(1) that, before relying on s 37(1) to exercise the "move on" power under s 39, the police officer must personally form the suspicion that the person's behaviour is or has been within one of the categories of behaviour described in s 37(1)(a) to (d) and that suspicion must be objectively reasonable.  That is, it must be based on facts which would create a reasonable suspicion in the mind of a reasonable person: Tucs v Manley.[10]
  1. The evidence was confusing and contradictory as to whether Mr Rowe's non-conforming behaviour which led Constable Kemper to give him a direction, purportedly under s 39, was only his behaviour towards Mr Doman, the cleaner of the public toilet, or also his behaviour towards the police officers. On the one hand, there was some evidence that in giving the direction Constable Kemper was concerned about Mr Rowe's behaviour towards police. The undisputed transcript of the audio tape of the incident recorded Constable Kemper telling Mr Rowe immediately before giving the direction: "…you have now committed a public nuisance offence by arguing with [Constable Robertson] by arguing with me". Constable Kemper made clear in his oral evidence, however, that he was not relying on the commission of any alleged public nuisance offence in bringing the present charges against Mr Rowe.
  1. The cross-examination of Constable Kemper included the following:  

"The behaviour you rely upon is his behaviour to Mr Doman, interfering with Mr Doman performing his duty; is that right?-- Mr Rowe interfering with Mr Doman's duties.

Sorry, did I get it the wrong way around?-- Yes.

Okay, well, that is the behaviour that you rely upon: Mr Rowe interfering with Mr Doman conducting the business of cleaning the toilet?--I reasonably suspected that as [Mr Rowe] was interfering with [Mr Doman's] goings-on, his usual trade, and his behaviour towards a Brisbane City Council worker who had asked him to leave and he didn't, his then continued aggressive behaviour towards me, I suspected if he was also just part of my reasoning that if he was to continue in the Queen Street Mall that the city being what it is, a dangerous place, that sort of behaviour -----

I'm going to interrupt you because you are getting off the track. Your state of mind is one thing. I am concerned to identify, with some precision, the behaviour which you were talking about? -- The behaviour was interfering with Mr Doman's normal business of maintaining the Brisbane City Council toilets."

"There was no hint of violent behaviour on his part?-- Sir, when he walked up the ramp he's turned towards us. He was very aggressive towards Constable Robertson. He's clenched his fists. As I said, he was an unknown threat. At that point he was a high threat and I didn't know what he was going to do. I thought he was going to strike Constable Robertson and I think that constitutes aggressive behaviour.

That is entirely - if there was any aggressive behaviour, it was entirely directed towards the police who were escorting him from the toilet?-- No, sir. As I said, he displayed aggressive tendencies towards Mr Doman as well.

In any case, the belligerence you talk about is evidenced exclusively in the tape-recording that we have?-- Yes, sir.

It is really confined to an argument with you, you generally, police, about the reasonableness of your behaviour; do you agree with that?-- He-----

You don't have to accept for the time being that your behaviour was unreasonable, just that that was the subject of the argument?-- Of his argument, sir?

Yes?-- He was saying we were unreasonable, yes.

That is the context of his belligerence?-- He was being belligerent the whole time through, sir.

Yeah, towards police?-- Even initially when we turned up, he - his demeanour was of very anti-----

We can hear that, actually we can hear that on the tape."

  1. Constable Robertson also gave evidence of this episode:  

"…the defendant basically packed up his gear and began to make his way out of the mens room. Probably about halfway up, I'd say, [Mr Rowe] turned around to me, um, at this time I thought he was - I suppose he was a bit sort of aggressive standing, he was standing pretty close to me, probably about half an arm's length, I sort of could just notice in the corner of my eye he had his right - right fist clenched, sort of down to the side of his face … his feet were sort of a bit spread and he was sort of leaning forward just sort of an aggressive, I guess, style stance you'd call it, and I thought, oh, geez, is he going to hit me here?  So I didn't say anything, I just – we just sort of stood sort of toe to toe for a bit, and then Constable Kemper said something … ."

  1. The audio tape recorded the following conversation at this point:  

"CONSTABLE ROBERTSON:  Walk, keep walking.

CONSTABLE KEMPER:  Keep walking. Do not look at the Constable that way and move away from him right now.

MR ROWE:  Don't start hassling me.

CONSTABLE KEMPER:  Move away from him right now or you will be arrested.

CONSTABLE ROBERTSON:  Or I'll push you back from me.

MR ROWE:  Each and every word you've said will be recorded, don't worry about it.

CONSTABLE ROBERTSON:  (unintelligible) See these signs Sir.  Is what I was indicating to you before?

MR ROWE:  Those signs weren't there when I (unintelligible)

CONSTABLE ROBERTSON:  Yes they were.

Ok ok ok excuse me listen to me listen to me excuse me listen to me. 

MR ROWE:  Take your hand off me.

CONSTABLE KEMPER:  Listen to me ok you have now committed a public nuisance offence by arguing with him by arguing with me. …"

  1. Counsel for the respondent relies on evidence of this ilk to support his contention that Constable Kemper's direction was based both on Mr Rowe's behaviour towards Mr Doman and on his subsequent argumentative and aggressive behaviour to police. 
  1. On the other hand, Constable Kemper on several occasions said that, in giving the direction, he was concerned only about Mr Rowe's behaviour towards Mr Doman. He stated that he "had no problem with" Mr Rowe's argumentativeness with police. In cross-examination Constable Kemper stated that he was relying on s 37 of the Act[11] as enlivening his power to give the purported s 39 direction and that the relevant behaviour under s 37 was:   

"…. Mr Rowe interfering with Mr Doman's duties.

…interfering with Mr Doman's normal business of maintaining the Brisbane City Council toilets.

…causing anxiety to Mr Doman and that – under s 37."

  1. As I have noted,[12] Constable Kemper also gave evidence that he was concerned about Mr Rowe's possible future behaviour having an impact on the safety of Mr Rowe and others.  Constable Kemper seemed to suggest that this was at least one reason why he used "necessary force, minimum force" to grab Mr Rowe on the shoulder to give him the direction under s 39.  The words "is or has been" in s 37(1) (the sub-section on which Constable Kemper relied as enlivening his power to give a direction to Mr Rowe under s 39) show that s 37(1) is concerned with present or past behaviour; it is not concerned with potential future behaviour.  Constable Kemper's concern about Mr Rowe's possible future behaviour was irrelevant if Mr Rowe's past or present behaviour was not a "relevant act" under s 37(1).  Of course, if the past or present behaviour was a "relevant act", a police officer would be entitled to consider that behaviour's potential effect on future behaviour in framing a "direction that is reasonable in the circumstances" under s 39. 
  1. The audio tape of the incident provides unchallenged objective evidence as to what happened. Constable Kemper accepted in evidence that Mr Rowe's belligerence was "evidenced exclusively in the tape recording". The transcript of that tape demonstrates the following. Mr Rowe repeatedly requested the names of the police officers. He accurately explained that the sign stating the public toilet was closed for cleaning was not present when he entered. He was persistently argumentative towards police. He looked angrily at Constable Robertson when he was in close proximity to him. He did not make physical contact with any police officer. The first physical contact between the protagonists was when Constable Kemper placed his hand on Mr Rowe.
  1. Constable Kemper's statement recorded in the audio tape was that Mr Rowe had committed a public nuisance offence by arguing. Neither he nor any of the other five police officers present are recorded as making a direct complaint of any threatened physical aggression. This supports my conclusion that although Mr Rowe was argumentative and looked angrily at Constable Robertson when he was close to him, he did not make physical contact with any police officer nor threaten to do so. If Constable Kemper or any of the other police officers were concerned about Mr Rowe's physical aggression or threats of it, it is surprising that none of them stated this concern contemporaneously. Any such statement would have been recorded. The police officers' evidence that Mr Rowe clenched his fist near Constable Robertson is not supported by the audio tape. It could well be reconstruction or rationalisation after the event.
  1. I agree with the magistrate's conclusion from all the evidence that Constable Kemper reasonably suspected Mr Rowe's behaviour had "caused anxiety to [Mr Doman] … reasonably arising in all the circumstances": (s 37(1)(a)); that Mr Rowe's behaviour did not come within s 37(1)(b) (see s 37(2)); and that Mr Rowe's behaviour was not disrupting the peaceable and orderly conduct of any event, entertainment or gathering within the terms of s 37(1)(d). (Mr Doman's cleaning of the public toilet was hardly an "event, entertainment or gathering".)
  1. The magistrate found "that there existed a foundation also for the exercise of the section 39 power by Constable Kemper pursuant to section 37(1)(c)". His Honour seems to have so concluded because Constable Kemper reasonably suspected that Mr Rowe's behaviour was disorderly to Constable Kemper and his police colleagues. This conclusion requires findings proven beyond reasonable doubt both that Constable Kemper subjectively suspected this and that his suspicion was objectively reasonable.
  1. The term "disorderly" when referring to behaviour like that alleged against Mr Rowe means conduct which causes or is likely to cause disturbance or annoyance to others present; the conduct must be serious enough to incur the invocation of the directions power under the Act, which ultimately imposes criminal sanctions for contravention of a direction: cf Police v Christie;[13] E (A Child).[14] 
  1. For the reasons given, I am not persuaded Mr Rowe clenched his raised fist near Constable Robertson. Mr Rowe was entitled to explain to police how he came to be in the public toilet before Mr Doman displayed the sign closing it for cleaning. He was also entitled to request the police officers' names and details. He was persistent, assertive and verbally aggressive towards police and he looked angrily at Constable Robertson but that was not enough to amount to disorderly behaviour in the meaning of that term under s 37(1)(c). It follows that the prosecution did not establish on the evidence beyond reasonable doubt that a reasonable person would have suspected that Mr Rowe's proven behaviour was disorderly in this sense to Constable Kemper or Constable Robertson.
  1. Nor did the prosecution establish on the evidence beyond reasonable doubt that Constable Kemper actually formed a suspicion that Mr Rowe's behaviour was disorderly in respect of himself and his police colleagues. That is because Constable Kemper's evidence (that he regarded Mr Rowe's argumentativeness towards him and his police colleagues as, in his words) "no problem", at least throws real doubt on whether he actually formed the suspicion.
  1. It follows that on the evidence Constable Kemper was entitled to give Mr Rowe a direction under s 39 only because of his reasonable suspicion held under s 37(1)(a), that Mr Rowe's behaviour in the public toilet had been causing anxiety to Mr Doman.

  The lawfulness of the direction

  1. I agree with Holmes JA that a reasonable direction in these circumstances was one limited to removing Mr Rowe from the public toilet for a reasonable time to allow Mr Doman to clean it and that Constable Kemper's direction to leave the mall for eight hours was so broad as not to be, in the terms of s 39, "reasonable in the circumstances".  The direction given, purportedly under s 39, was not closely enough linked or related, and was disproportionate, to the triggering "relevant act" which was causing anxiety to Mr Doman in the public toilet (s 37(1)(a)). 
  1. On this basis alone, the direction given by Constable Kemper was not authorised by the clear terms of s 39. It was not, in the terms of s 445(1), a "direction under this Act" so that Mr Rowe did not commit an offence against s 445(2) in contravening it. The magistrate was wrong to find to the contrary.

  The effect of s 391 of the Act[15]

  1. Although it is not necessary to deal with this issue in deciding the appeal, I agree with Holmes JA that, on the evidence, it was entirely practicable for Constable Kemper to comply with the provisions of s 391(2) and (3) of the Act.[16]  Proof of compliance with s 391(2) and (3), if practicable, was necessary for the prosecution to establish an offence against s 445(2): cf Cox v Robinson.[17]  The video is consistent with the suggestion put to Constable Kemper in cross-examination that Mr Rowe was 65 years old.  He appeared to be slow-moving and deliberate in his actions.  He obviously needed more time than many others might need to comply with a direction like the one given by Constable Kemper.  Constable Kemper seems to have arrested him almost immediately after giving the direction.  In doing that, Constable Kemper certainly failed to comply with at least s 391(3); he did not give Mr Rowe a reasonable opportunity to comply with the direction before arresting him. 

  The effect of s 394(6) of the Act[18]

  1. Another issue which was raised in argument but on which it is unnecessary to express a concluded view is the meaning and effect of s 394(6) of the Act.[19]  Holmes JA has given her tentative view of its effect.[20]  In my view, it is unclear whether the legislature intended that the "police officer" asked "for the information" under s 394(6) is required to give information and produce an identity card concerning the police officer of whom the request is made; the police officer to whom s 394(2) applies; or both.  Police officers diligently carrying out their difficult duties and responsibilities under the Act are entitled to clarity on this matter.  This ambiguity easily could be and should be corrected by legislative amendment.

The offence of obstructing a police officer in the course of duties

  1. I turn now to the finding of guilt for the offence against s 444(1) (obstructing Constable Kemper in the performance of his duties). To establish this offence, the prosecution had to prove beyond reasonable doubt that Mr Rowe obstructed Constable Kemper in the performance of the Constable's duties in arresting Mr Rowe.
  1. Section 198[21] relevantly provided:  

"It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary … 

(a)to prevent the continuation … of an offence …

[or]

(i)because the offence is an offence against section … 445."

  1. In Veivers v Roberts; ex parte Veivers,[22] this Court held that even where a person was arrested but later acquitted of an offence against the provisions of the Vagrants, Gaming and Other Offences Act 1931-1977 (a statutory predecessor of the Act) the person could still be convicted of the reactive offence of resisting the arresting police officer in the execution of his duty under s 59 of the Police Act 1937-1978 if, at the time of the arrest, the police officer had reasonable grounds for believing that an offence had been committed. 
  1. I have carefully reviewed the uncontested transcript of the audio tape leading up to and including Constable Kemper's arrest of Mr Rowe and the video recording of the ensuing contact between Mr Rowe and police. That evidence, together with the oral evidence at trial, make plain the following. Constable Kemper purported to give Mr Rowe a direction under s 39.  He immediately warned Mr Rowe that if he did not leave he would be arrested.  Mr Rowe continued to ask Constable Kemper for his name and number.  Constable Kemper immediately exercised what he apparently believed to be his powers of "lawful arrest under s 198" of the Act.  At the time Constable Kemper arrested him, Mr Rowe was well clear of the public toilet where he had been causing anxiety to Mr Doman.  Mr Rowe was elderly and appeared slow and deliberate in his actions.  The six police officers surrounding him after he left the public toilet appeared much younger and fitter than Mr Rowe.  Mr Rowe's persistent argument with them was primarily about his desire to record their names and numbers.  He was not directly physically aggressive towards them.  He did not appear to actively physically resist the arrest.  In sentencing, the magistrate described the arrest and ensuing contact as "… one that possibly could have been exercised without the number of officers involved and without having [Mr Rowe] placed to the ground".  The District Court judge described it as "unsettling to see the images [of the arrest and ensuing contact] on the video recording".[23] 
  1. I accept that police officers will often have to make quick assessments and immediate decisions when framing and giving directions under the Act. The giving of appropriately framed directions may have the beneficial effect of preventing relatively minor examples of unacceptable public behaviour from developing into more serious conduct putting people and property at risk. Courts must keep those matters firmly in mind when determining questions about the reasonableness of police directions and conduct under the Act. On the other hand police officers have the sometimes difficult task, for which they are extensively trained, of exercising tolerance and patience so that an individual's liberty is only curtailed when plainly necessary and lawful.
  1. After reviewing all the evidence and for the reasons given earlier, I am satisfied of the following. Constable Kemper reacted disproportionately to Mr Rowe's argumentative, non-conforming behaviour in giving him the direction in unreasonably broad terms. His direction to Mr Rowe, purportedly under s 39, was not reasonable in the circumstances and was not a "direction under this Act" in terms of s 445(1). He also acted unreasonably in the circumstances in not complying with, at least, s 391(3) (giving a reasonable opportunity to comply with the direction when it was practicable to do so) before purporting to arrest Mr Rowe under s 445(2). It was unreasonable for Constable Kemper to have suspected that Mr Rowe had committed any offence against s 445(2) for contravening his direction so soon after he had given it.
  1. There will be instances, as in Veivers, where the offence of obstructing a police officer in the course of the officer's duties will be made out even where the original offence precipitating the arrest is not.  But Constable Kemper's disproportionate reaction to Mr Rowe's persistent and argumentative behaviour meant that he was not acting reasonably either in giving such a broad direction or in arresting Mr Rowe for an offence against s 445(2).  Constable Kemper may have believed that Mr Rowe had committed an offence against s 445(2) but the evidence does not show beyond reasonable doubt that he had reasonable grounds for holding that belief.  He was therefore not acting lawfully in arresting Mr Rowe, purportedly under s 198, as, in all the circumstances gleaned from viewing the whole of the evidence, his suspicion that Mr Rowe had committed an offence against s 445 was not reasonable.
  1. The prosecution has not established that Constable Kemper was acting lawfully in arresting Mr Rowe. It follows that it has not established that Constable Kemper was acting in the performance of his duties when Mr Rowe is said to have obstructed him. The offence against s 444(1) is not made out. The magistrate should not have found Mr Rowe guilty of that offence.

  Conclusion

  1. Leave to appeal should be given so that the injustices done to Mr Rowe (in having findings of guilt wrongly recorded against him and in not having his appeal determined according to law under s 222 Justices Act) can be corrected.  The appeal should be allowed and orders made as set out in [2] of my reasons.
  1. HOLMES JA:  The applicant, Mr Rowe, seeks leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) against a decision of a District Court judge in an appeal brought under s 222 of the Justices Act 1886 (Qld).  That decision upheld a magistrate’s decision to find  Mr Rowe guilty of the offences of contravening a police direction given under the Police Powers and Responsibilities Act 2000 (Qld) (to leave the Queen Street Mall immediately for a period of eight hours) and of obstructing the police officer who had given him the direction in the performance of his duties.  Mr Rowe wishes to argue three grounds of appeal:  that no lawful direction was given; that his arrest was unlawful; and that there was no obstruction because the arrest was unlawful, or, alternatively, because Mr Rowe’s actions were a response to unlawful force used in effecting it. 

    Mr Rowe’s encounter with the police

  1. The offences were said to have occurred in the evening of Sunday, 9 July 2006. The background to Mr Rowe’s encounter with the police was that, wanting to change his clothes, he had gone into a cubicle for disabled persons in public toilets in the Queen Street Mall. A cleaner, Mr Doman, who wanted to carry out his cleaning duties, asked him to leave. Mr Rowe asked for another couple of minutes, to which Mr Doman agreed. After five minutes, the cleaner again demanded that Mr Rowe leave.  There was a verbal dispute, about whether Mr Rowe as a member of the public was within his rights in insisting he be permitted to continue changing and whether the cleaner had to wait for him.  Mr Doman described his reaction:  

“‘I don’t have to put with this stuff, I do this for eight hours, I don’t have to put up with it any longer’ and that is when I thought it started to get a bit verbal.  I didn’t want to give a verbal back so that is when I went upstairs and got the police officers because in the toilets, where I am there, it is fairly closed off so if anything did happen then there is no audio, no video, no anything like that.”

In cross-examination, he said that he had felt “threatened verbally”, but not physically.

  1. Mr Doman returned with police officers to remove Mr Rowe from the toilets, prompting Mr Rowe to exclaim, “Oh my God, four uniformed policemen”. Constable Kemper, the complainant, said that he and Constable Robertson were the officers who actually entered the foyer of the public toilets; he was not aware of any other officers with them.  (Another police officer, Constable Boyson, said that she and a Constable Arndt brought up the rear, waiting at the entrance of the toilets for a short while before returning to the Mall.)  Mr Rowe was squatting with his bag and clothes on the floor of the foyer.  Constable Kemper instructed Mr Rowe to collect his belongings; he was given time to do so. 
  1. The conversation from the arrival of the police officers was recorded and transcribed, although small portions of the transcript are unintelligible. Mr Rowe said he wanted the officers’ names and numbers. Constable Kemper identified himself by name, rank and station; Constable Robertson identified himself by name and rank. Mr Rowe asked for a good reason why he should leave the toilets. Constable Kemper foreshadowed that he would give an official police direction. Mr Rowe complained that the public toilets seemed no longer public.  Constable Robertson informed him that they were not public when closed for maintenance, as was clear from the sign and rope placed outside them. (Neither had been in place when Mr Rowe entered the toilet.)  Mr Rowe reiterated his request for the names and numbers.  Constable Robertson said that it was only necessary to provide them if they were arresting him, and in any event the names had been given. 
  1. Next, Constable Kemper instructed Mr Rowe to keep walking and to move away from the other constable, while Constable Robertson also warned him that he would push him back. In evidence, Constable Kemper and Constable Robertson explained that at that point the three men were walking up the ramp from the toilets. Half-way up, Mr Rowe had stopped and taken a belligerent stance, clenching his fists and looking angrily at Constable Robertson. According to Constable Robertson, on being warned, Mr Rowe turned and continued walking. At the top of the ramp, Constable Robertson pointed to a sign to the effect that the toilets were closed for maintenance, indicating that it was the one he had referred to earlier. Mr Rowe endeavoured to say that the sign was not there when he entered; Robertson asserted that it was. At that point it seems, Constable Kemper decided to give a direction and placed his hand on Mr Rowe’s shoulder; Mr Rowe responded by telling him to take it off. The conversation, as transcribed, continued as follows:  

“K:Listen to me ok you have now committed a public nuisance offence by arguing with him by arguing with me. I am Constable Robert Kemper from City Station.

R1:Like hell you are.

K:I am now directing you under section 39 of the Police Powers and responsibilities Act, due to your behavior and due to the offence, to leave the Queen Street Mall.

R1:Take your hands off me.

K:If you come back to the Queen Street Mall in 8 hours - hey I’m talking to you. You will be arrested. I’m talking to you do you understand that.

R1:I want UI[24]

K:Leave by this way now. If you come back within 8 hours you will be arrested, leave immediately.

R2:Do you understand that direction?

K:I am now warning you that if you do not leave now you will be arrested. Do you understand that? I am now giving you an official warning

R1:Your name and number.

R2:I have already given it to you Sir I am not going to repeat myself

R1:Your name Sir.

K:Sir, If you do not leave now you will be arrested

R1:You refuse to give me your name and number as well do you?

R1:Sir. Do you refuse?

[R2] Ben ARNDT.

K:You will be under UI I will give you one more chance if, to leave. You have got my name.

R:I haven’t got your name.

K:I told you my name and now I am directing you to leave.

R:And your number please.

K:One more.

R1:You refuse?

K:You are now under arrest for contravening UI don’t UI (sounds of struggle).”

In cross-examination, Constable Kemper said his reference to Mr Rowe’s arguing meant his arguing with Mr Doman and with him; he regarded that behaviour, combined with Mr Rowe’s aggressive demeanour, as a public nuisance offence.  However, he chose not to charge Mr Rowe with it, but instead to give him a direction under s 39 of the Police Powers and Responsibilities Act.

The PPRA provisions about directions

  1. Section 37[25] of the Police Powers and Responsibilities Act sets out the conditions which may give rise to an exercise of power under s 39:  

s 37 When power applies to behaviour

(1)A police officer may exercise a power under section 39 in relation to a person at or near a regulated place if a police officer reasonably suspects the person’s behaviour is or has been –

(a)causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or

(b)interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place; or

(c)disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place; or

(d)disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.

 

(2)If the regulated place is a public place, subsection (1) applies in relation to a person at or near the public place only if the person’s behaviour has or had the effect mentioned in subsection (1)(a), (b), (c) or (d) in the part of the public place at or near where the person then is.”

  1. Section 39[26] governs the direction that may be given:  

s 39  Direction may be given to person

(1)A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.

Examples for subsection (1)  

1If a person sitting in the entrance to a shop is stopping people entering or leaving the shop when it is open for business and the occupier complains, a police officer may give to the person a direction to move away from the entrance.

2If a group of people have been fighting in a night club car park, a police officer may give the people involved in the fight a direction to leave the premises in opposite directions to separate the aggressors.

3If a person has approached a primary school child near a school in circumstances that would cause anxiety to a reasonable parent, a police officer may give the person a direction to leave the area near the school.

(3)Without limiting subsection (1), a direction may require a person to do 1 of the following –  

(a)leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours;

(b)leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours;

(c)move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return or be within the stated distance from the place within a stated reasonable time of not more than 24 hours.

(4)The police officer must tell the person or group of persons the reasons for giving the direction.”

  1. Section 391, as it appeared at the relevant time,[27] sets out certain steps to be taken where a s 39 direction is given:  

s 391 Safeguards for directions or requirements

(1)This section applies if a police officer gives someone a direction or makes a requirement under this Act.

(2)If the person fails to comply with the direction or requirement, a police officer must, if practicable, warn the person –

(a)it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and

(b)the person may be arrested for the offence.

(3) The police officer must give the person a reasonable

          opportunity to comply with the direction or requirement.”

  1. Section 445(2)[28] creates the offence of contravening a direction:  

“A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.”

The s 39 direction and the failure to comply

  1. In examination in chief, Constable Kemper explained the concerns which led him to give the direction in the form he did:  

“Once we exited - due to his behaviour to the Brisbane City Council worker who was doing his job, closing for maintenance, he had been arguing with him, then he been arguing with us and that - I had no problem with that but just his continuing behaviour, aggressive behaviour, especially in the city, causes me concern because that sort of behaviour in the city, I thought if he was going to be in the Queen Street mall where there is still a lot of people I was concerned for his safety and other people's safety where he could cause a fight or someone would be inclined to do violence upon him so I thought it was - I really did need to give him that direction…

… All I wanted him to do was go home on his own accord which he was doing to a certain point and then he didn't. He just started become very aggressive, very abusive and for that reason I thought he would not leave the mall. He would continue his behaviour. That is why I thought it reasonably necessary to give him the direction from the Queen Street Mall.”

  1. Asked in cross-examination to identify the behaviour which was the subject of his reasonable suspicion under s 37(1) of the Police Powers and Responsibilities Act, Constable Kemper said that it was interfering with Mr Doman’s duties.  The questioning continued:  

“Okay, well, that is the behaviour that you rely upon: Mr Rowe interfering with Mr Doman conducting the business of cleaning the toilet?---  I reasonably suspected that as the defendant was interfering with his goings on, his usual trade, and his behaviour towards a Brisbane City Council worker who had asked him to leave and he didn't, his then continued aggressive behaviour towards me, I suspected if he was also just part of my reasoning that if he was to continue in the Queen Street mall that the city being what it is, a dangerous place, that sort of behaviour----

I am going to interrupt you because you are getting off the track. Your state of mind is one thing. I am concerned to identify, with some precision, the behaviour which you were talking about?---  The behaviour was interfering with Mr Doman's normal business of maintaining the Brisbane City Council toilets.

And that was it? That was the behaviour upon which you rely to say had you the power to give him a move on direction?--- And causing anxiety to Mr Doman and that - under section 37, yes.

Yes?--- Under section 37 of the Police Powers and Responsibilities Act, that empowers me to do so, which I did, yes.

All right, can we just forget the Act? Can we forget what is going on in your mind? I am asking you about the behaviour and the evidence of the behaviour and you are talking – I think we agree that it is nothing more and nothing less than his behaviour towards Mr Doman?--- It is the interference with his trade, sir. As I stated - sir, I am using the Police Powers and Responsibilities Act as I am supposed to.

I know you are but the behaviour might have the effect of interfering with something; do you understand what I am saying? I am asking about the behaviour, not about the interference?--- The behaviour is under the Act, that is what it states. It says as a behaviour, interfering----

I don't want a lecture on the Act, constable. I just want you to agree, as I think you have already, that the behaviour in question is nothing more and nothing less than what he was doing, what Mr Rowe was doing to Mr Doman---?--- No, sir----

---Whatever affect [sic] it had?--- No, sir, it was his interference with his trade.”

  1. Although the Operational Procedures Manual issued by the Commissioner of Police said that before giving a direction an officer should consider any reason the person offered for being in or near the place, Constable Kemper said he had not asked Mr Rowe whether he had any reason for being where he was, but he did not think he had a reasonable excuse to be there. He was asked about why that particular direction was given:  

“There was nothing to prevent you, for example, from giving him a direction to stay away from those toilets?--- I considered that but at the time due to his behaviour, belligerent behaviour, and the population of the Queen Street Mall, I decided that it would be best if he was not in the Queen Street Mall because, as I said, if he was in the Queen Street Mall and someone took offence to his behaviour, which a lot of people do, especially in Brisbane city, being a lot of liquor related incidents, that if he started with - if he started with police and a Brisbane City Council worker, that it might escalate to a time where he’s giving someone else something and then he might - I was concerned for his safety that either he might be a victim of violence or he might perpetrate violence.”

  1. Constable Robertson, when cross-examined, agreed that apart from the exchange on the ramp, Mr Rowe’s confrontational behaviour consisted of his demands for the names and particulars of the police present. According to Constable Robertson, once Mr Rowe was given the direction, he saw him walk to a bench, take pen and paper out of his bag and start to write something down. The transcript confirms that, after being given the direction, Mr Rowe continued to demand names and numbers until Constable Kemper arrested him for the offence of contravening a direction. Constable Kemper said that in his view it was irrelevant that Mr Rowe might have wanted the information, because once given the direction he was obliged immediately to move on.

The arrest and the obstruction charge

  1. Section 198[29] of the Police Powers and Responsibilities Act provides that a police officer may arrest without warrant someone whom he reasonably suspects has committed an offence, if it is reasonably necessary for one of a number of specified reasons.  One such reason is that the offence is one committed against s 445 (contravening a direction); another is “to prevent the continuation or repetition of an offence”.  Here, Constable Kemper said, it was necessary to arrest Mr Rowe to prevent him from continuing to contravene the direction.
  1. Section 444(1)[30] of the Police Powers and Responsibilities Act makes it an offence to “obstruct a police officer in the performance of the officer’s duties”.  Constable Kemper said that at the moment he told Mr Rowe he was under arrest, the latter was holding a pen and notebook; according to Constable Robertson, he was actually writing in the notebook.  Constable Kemper took Mr Rowe’s wrist to put handcuffs on him.  Mr Rowe then, he said, “started walking, sort of, very into me, barging through”.  He agreed, having reviewed Queen Street Mall CCTV footage (which showed the scene from about this point on), that the movement he described as “barging” towards him was a “little movement”; and at all times when Mr Rowe was performing it, he was holding him with his hand behind his back.  Once Mr Rowe made that movement, Constable Kemper said, he regarded him as “a high threat”.
  1. Constable Kemper said he took Mr Rowe in a hugging grip and his legs were “taken out”. That moment can be seen on the CCTV footage; one of the police officers uses his leg to kick one of Mr Rowe’s legs away behind him, so that he subsides to the ground in a “splits” posture. By this stage six police were involved: Kemper, Robertson, Boyson and Arndt, and two unnamed recruits. It is difficult to discern from the video footage who was doing what, except that Mr Rowe was underneath the others. One of the police officers can, however, be seen repeatedly lunging with a knee in the direction of Mr Rowe on the ground.
  1. According to Constable Kemper, Mr Rowe, once placed on the ground, started “thrashing his legs out”. He had, Constable Kemper said, kicked Constable Arndt with such force as to cause lacerations and bruising to the latter’s shin; although, he conceded, he had not himself seen the kick connect, and all that could be seen on the video was a leg “thrashing out”. While Mr Rowe was kicking, Constable Kemper had taken his hand behind his back and raised it towards his head in a restraint technique, and he placed himself on Mr Rowe’s trunk using his right knee to pin Mr Rowe’s leg to prevent him kicking out.  That had involved a “downward motion”, applying force onto Mr Rowe’s body.  Meanwhile, Constable Arndt had applied a technique called a “peroneal” to stop Mr Rowe from kicking, which involved applying a knee to the side of the leg.  All of the officers who gave evidence, Constables Kemper, Robertson and Boyson denied seeing Constable Arndt drop a knee into Mr Rowe’s recumbent body.  Constable Arndt did not himself give evidence. 
  1. The obstruction charge was not particularised, but the obstruction seems to have been regarded as comprising all of Mr Rowe’s voluntary actions from his movement towards Constable Kemper, when the latter took hold of him, to, and including, his kicking or “thrashing out” with his leg when he was on the ground.
  1. Mr Rowe did not give evidence.

The magistrate’s findings as to the lawfulness of the direction

  1. The magistrate found that Mr Doman was uneasy about Mr Rowe’s behaviour, so that it was reasonable for Constable Kemper to suspect him of causing anxiety to a person at the public place, within the meaning of s 37(1)(a) of the Police Powers and Responsibilities ActNot surprisingly, he did not accept that Mr Doman was interfered with in his trade or business at the toilets, so he did not accept that the s 37(1)(b) suspicion relied on by Constable Kemper could reasonably have been formed.  In addition, however, he found that there was a foundation for exercise of the s 39 power by Constable Kemper under s 37(1)(c): that he reasonably suspected  

“… that the aggressive, argumentative and threatening behaviour of Mr Rowe with a closed fist in close proximity to Constable Robertson was disorderly to Mr Doman, Constable Robertson and himself at that regulated place”;

although that was not a reasonable suspicion on which Constable Kemper himself had purported to act.

  1. On those bases the magistrate found that there were grounds for the exercise of the powers under s 39. He went on to conclude that, given the desire to avoid further confrontation and further unwanted behaviour in a regulated place, the direction to leave the Queen Street Mall immediately and not return for eight hours was reasonable. He was satisfied that Mr Rowe had no reasonable excuse for non-compliance with the direction he had been given; there was no direct evidence of why he had a pen and notebook and thus no evidence of any reason for Mr Rowe’s failure to comply.
  1. The defence had relied on s 391 of the Police Powers and Responsibilities Act, arguing that its requirements had not been met.  The magistrate set out the provisions of s 391 and found “on all evidence before the Court” that Constable Kemper had complied with them.  He did not, however, make any finding that it was impracticable to give the warnings that the section prescribes.  Nor did he address whether Mr Rowe had been given a reasonable opportunity to leave.  He turned instead to consider whether Mr Rowe had a reasonable excuse for failing to comply with the direction, and found that even had he raised an excuse in the form of a desire to write down the details of the police officers involved, “that delay in complying with the direction to move on was not a reasonable excuse for contravening the direction”.
  1. As to the obstruction charge, the magistrate observed that the video showed Mr Rowe bracing his legs and body in resistance to Constable Kemper.  One of Mr Rowe’s legs was pulled to put him to the ground.  Constable Kemper’s evidence was that Mr Rowe’s unrestrained leg, thrashing out, injured Constable Arndt.  Although the video showed a person identified as Constable Arndt moving his right knee in the direction of Mr Rowe a number of times, there was no evidence as to whether those movements made contact with Mr Rowe’s body.  The magistrate expressed himself satisfied beyond reasonable doubt that Mr Rowe had struggled while Constable Kemper was effecting an arrest;  that he “raised [probably braced] his body and physically resisted Constable Kemper”;  and that after being put on the ground with one leg held by Constable Kemper’s knee he was kicking out with his other leg, until Constable Arndt’s assistance to Constable Kemper caused him to cease kicking;  and that his actions, which made it more difficult for Constable  Kemper to carry out his duties, amounted to obstruction.

The District Court judge’s conclusions on appeal

  1. The learned District Court judge hearing the appeal considered the basis for the power to give the direction and the content of the direction itself:  

Was it reasonable to give the direction?

In my opinion, the learned Magistrate could conclude there was a foundation for the exercise of the power to give the direction under the PPRA. That is because the learned Magistrate could act on the evidence of Constable Kemper about his reasons for giving the direction.

Further, the learned Magistrate could be satisfied the behaviour of the appellant (including aggressive, quarrelsome and threatening behaviour) was interfering with the comfort of other people in the place, including Mr Doman and the police officers because the learned Magistrate could act on the evidence of Mr Doman and the police officers about the appellant’s behaviour.

Nothing in the tape-recording or video requires any different conclusions to be reached in this case.

In my opinion, it was open to the learned Magistrate to conclude beyond reasonable doubt it was reasonable to give the direction.

Was the direction reasonable in nature and scope?

In my opinion, the circumstances did not warrant limiting the direction to a direction to stay away from the toilets. In my opinion, the learned Magistrate could accept, in the circumstances, that wanting to avoid any further unwanted behaviour in the Mall, the direction to leave immediately and not return for eight hours was reasonable. The learned Magistrate noted the word immediately implied with “little delay”. He also observed that the maximum exclusion period was one of 24 hours. Therefore, the appellant could have returned to the Queen Street Mall not long after 5 00 am on 10 July 2006.”

  1. The learned judge went on to consider whether Mr Rowe had been given reasonable opportunity to comply with the direction. He said that Mr Rowe was not entitled to the name, rank and station of every officer present. He was given a number of opportunities to comply with the direction but had made it clear that he was not prepared to do so, and had not offered any reason why he needed to stay in the Mall. In his Honour’s opinion, the magistrate’s conclusion that Mr Rowe did not have a reasonable excuse for non-compliance was correct, as was his further conclusion that the elements of the offence had been proved beyond reasonable doubt.
  1. As to the obstruction offence, having viewed the video footage of the arrest, his Honour expressed himself satisfied that the police officers used reasonable force to arrest Mr Rowe. While his Honour said that he could see a police officer identified as Constable Arndt bringing his leg down on several occasions towards Mr Rowe, “the actions of this police officer may have been necessary to subdue the appellant, who may have been kicking out with his leg”.

Submissions for the applicant

  1. Counsel for Mr Rowe conceded that his causing anxiety to the cleaner amounted to behaviour within s 37(1)(a) of the Police Powers and Responsibilities Act and that his confrontation with Constable Robertson on the ramp could amount to behaviour within s 37(1)(a) or (d) of the Act.  But none of that behaviour, which was desisted from and was over by the time Mr Rowe reached the Mall with the police officers, warranted a direction.  His request for names and particulars of the police and his attempt to write the information down was reasonable.  Consequently, it was not reasonable to give him a direction; nor was the direction actually given proportionate.  The District Court judge had erred in failing to undertake the exercise prescribed by Fox v Percy,[31] of weighing the evidence and drawing his own inferences and conclusions as to the reasonableness of the direction; instead he had merely found the magistrate’s findings to be open to him.  In the alternative, he had erred in concluding that the direction was reasonable.
  1. Counsel relied on s 391 of the Police Powers and Responsibilities Act (set out above),arguing that the section should be read as requiring the police officer to ask Mr Rowe whether he had a reasonable excuse for failing to comply.  In oral submissions, the argument expanded: counsel suggested that a failure to comply with s 391 meant that there was not a complete and lawful direction; relying for that proposition on Coleman v Greenland, Donaldson, Powers, etc & the State of Queensland[32] and Cox v Robinson[33].  Here, it was contended, Mr Rowe had a reasonable excuse; he was seeking information to which he had a right under s 394 of the Act.
  1. Section 394[34], by way of safeguard, enables persons against whom certain police powers are exercised to obtain police officers’ details.  The section is as follows:  

394 Supplying police officer’s details

(1)This section applies if a police officer –  

(a) searches or arrests a person; or

(b) searches a vehicle; or

(c) searches a place, other than a public place; or

(d) seizes any property; or

(e) stops or detains a person or vehicle; or

(f) requires a person to state his or her name and address; or

(g) gives to a person a direction under section 39 or 94; or

(h) enters a place to make an inquiry or investigation or to serve a document; or

(i) exercises a power as a public official.

(2)The police officer must, as soon as reasonably practicable, inform the person the subject of the power of the following –  

(a)if the police officer is not in uniform –  

(i)that he or she is a police officer; and

(ii)his or her name, rank and station; or

(b) if the police officer is in uniform - his or her name, rank and station.

(3)If the police officer is not in uniform, the police officer must also produce for inspection his or her identity card.

(4)If the police officer is searching a person, vehicle or place, other than under a search warrant, the police officer must state the purpose of the search and the reason for seizing any property.

(5)If 2 or more police officers are searching the vehicle or place, only the senior police officer present is required to comply with subsections (2) to (4).

(6)However, if a person asks another police officer for the information mentioned in subsection (2) or to produce an identity card, the police officer must give to the person the information requested or produce the identity card.”

Counsel for Mr Rowe argued that notwithstanding that sub-section (2) was expressed in the singular, sub-section (6) applied to require any police officer asked for identification details to provide it.  Here, not only Constable Kemper, but each of the police officers present, was obliged to provide his name, rank and station.

  1. Finally, counsel for the applicant argued that there was no lawful arrest, firstly, because the direction given was not reasonable in the circumstances, and was thus unlawful, and secondly because the police officers had not complied with s 391(2) in failing to enquire whether Mr Rowe had a reasonable excuse, when in fact he had an entitlement to the information he sought from them under s 394(6).  In the absence of a lawful arrest, there was no proper basis for the obstruction charge.  Even if there were a lawful arrest, Mr Rowe’s struggling, such as it was, was a legitimate response to the disproportionate and unlawful force used in effecting the arrest.

Submissions for the respondent

  1. Counsel for the respondent argued that the learned judge had reviewed the evidence and reached his own conclusions with appropriate deference to the magistrate’s advantage in seeing the police officers give the evidence. Constable Kemper was entitled in giving the direction to have regard to matters which were not the basis for his original decision to give it. It was open to the magistrate to disregard the police officer’s specific evidence as to the basis for his reasonable suspicion and conclude from the entirety of his evidence that it was really a broader ground. The police officer’s contemporaneous assertion, as recorded in the tape and transcript, that Mr Rowe had committed a public nuisance offence by arguing with him and Mr Doman ought, supplemented by his statement that he regarded Mr Rowe’s behaviour as aggressive, to be regarded as the best evidence of his reasonable suspicion.  The relevant behaviour should be regarded as a continuing course of confrontation and aggression, making the direction to leave the Mall for eight hours reasonable in the circumstances.
  1. It was not practicable in the circumstances, counsel submitted, for Constable Kemper to give the s 391 warnings.  Mr Rowe was not entitled to identification details from anyone but Constable Kemper, who had given them, so there was no question of reasonable excuse.  Even if the contravening a direction charge were not made out for “technical” reasons, Constable Kemper nonetheless held a reasonable suspicion as to the offence which made the arrest lawful, and the magistrate and the District Court judge had correctly found that the force used was appropriate to an escalating situation.  Mr Rowe was properly convicted of obstruction.

Was the direction given lawful?

  1. Section 37 deals with the reasonable suspicions which may enliven a power to give a direction, while s 39 deals with the content of the direction. The direction must be “reasonable in the circumstances”. The relevant circumstances are those identified in s 37; as much is made clear by the examples which illuminate s 39(1).  The direction must, then, bear a relationship to the behaviour about which the reasonable suspicion under s 37(1) was formed.  
  2. Constable Kemper’s evidence identified two bases of reasonable suspicion for the purposes of s 37(1): that Mr Rowe was causing anxiety to Mr Doman (sub-section (a)) and that he was interfering with Mr Doman’s business (sub-section (b)). Having formed those suspicions he considered it reasonable, within the meaning of s 39(1), to give him a direction to leave the Mall altogether. It is clear that he was entitled to give a direction on the basis that he reasonably suspected Mr Rowe’s behaviour had caused anxiety to Mr Doman, but the second basis, that Mr Rowe was interfering with trade or business by hindering Mr Doman, was, as the magistrate, correctly with respect, found, untenable.  
  3. But the magistrate found that there was also a foundation for exercise of the s 39 power by Constable Kemper under s 37(1)(c): that he reasonably suspected Mr Rowe’s “aggressive argumentative and threatening behaviour … with a closed fist in close proximity to Constable Robertson was disorderly”.  The difficulty with the last finding is that Constable Kemper had not identified the confrontation with Constable Robertson on the ramp as behaviour in respect of which he had formed any s 37 suspicion on which to base a s 39 direction (as opposed to mentioning what he described as “aggressive” and “belligerent” behaviour to explain why he thought it necessary to give such a wide direction).  Rather, he had in evidence expressly confined his concerns to interference with Mr Doman.
  1. There seems no justification for assuming Constable Kemper’s evidence as to the reasonable suspicion he held for the purposes of s 37 was other than sincere. The magistrate was not entitled to identify for himself an additional suspicion open on the evidence at large, reasonable or not, and ascribe it to Constable Kemper. The suspicion in question had to be held by the police officer, and acted on by him for the purposes of giving a direction, before its objective reasonableness became relevant. The magistrate’s findings about the reasonableness of the direction were, in my view, made on a false premise that the relevant suspicion on which the direction was based related to disorderly conduct under s 37(1)(c).
  1. The learned District Court judge similarly seems to have regarded it as permissible for the magistrate to act on the basis of a suspicion available on the evidence but not actually held. In the passage set out at [58] above, he observed (with respect, correctly) that the magistrate could act on “the evidence of Constable Kemper about his reasons for giving the direction”; but he went on to say that further the magistrate could be satisfied that Mr Rowe’s “aggressive, quarrelsome and threatening behaviour” was interfering with the comfort of others.  That, in my view, repeats the magistrate’s error.
  1. The question, then, is what direction under s 39 was necessary, given the circumstance that Constable Kemper suspected Mr Rowe’s behaviour of causing anxiety to Mr Doman.  It seems to me that the direction he was entitled to give was one which addressed the behaviour identified as of concern under s 37, not some more general endeavour to ensure orderly conduct in the Mall.  The direction reasonable to meet the identified circumstances was, clearly enough, that Mr Rowe keep away from the toilet until Mr Doman had finished cleaning it.  However, the direction which Constable Kemper gave was much broader: that he leave the Mall for eight hours.  That was not a reasonable direction in light of the reasonable suspicion that he had specified, and was not, therefore, a lawful direction.
  1. Even had it been open to the magistrate to attribute to Constable Kemper, as he did, a s 37 suspicion in relation to Mr Rowe’s “aggressive, argumentative and threatening behaviour with a closed fist in close proximity to Constable Robertson”, that behaviour too was limited, and was desisted from.  At the time the direction was given, Mr Rowe was doing nothing more objectionable than informing Constable Robertson, accurately, that the signs were not in place when he entered the toilets.  None of that conduct could, in my view, have founded a lawful direction to leave the Mall for eight hours.

Was the arrest lawful?

  1. There are two reasons for concluding that Constable Kemper could not have formed the necessary reasonable suspicion of an offence so as to entitle him to arrest Mr Rowe.  The first is that the direction given was so disproportionate that, while Constable Kemper may have suspected that failure to obey it was an offence, that suspicion was not a reasonable one.  The second is that Constable Kemper did not observe the requirements of s 391 before arresting Mr Rowe.
  1. Section 7 of the Police Powers and Responsibilities Act expresses Parliament’s intention that police officers comply with the Act in exercising powers and performing responsibilities under it, and indicates that an officer who contravenes it may face legal consequences.  But s 391 is silent as to the immediate and practical consequences of failure to comply with its requirements.  There are three possible consequences of non-compliance: that it merely raises the prospect of disciplinary action against the officer involved; that it precludes the giving of a lawful direction; or that while the direction may be lawful, no offence of contravention will be committed.
  1. Notwithstanding the submission to that effect by counsel for Mr Rowe, I doubt that compliance with the s 391 requirements is a necessary component to a lawful direction. I have, however, come to the conclusion that those requirements, and whether they have been observed, are relevant to whether any offence of contravening the direction is committed. Among the purposes of the Act set out in s 5 is  

“(e) to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act”. 

The requirements of s 391, described in the section’s heading as “Safeguards”, meet that purpose.  It is consistent with the notion of rights protection that an individual to whom the direction is given should not be regarded as having contravened it until those safeguard requirements have been observed. 

  1. In addition, the sequence in which the steps prescribed by s 391 are set out is instructive. The police officer must first give the direction, and then, if practicable, the dual warnings that it is an offence to fail to comply without a reasonable excuse and that the person may be arrested. What follows is the giving of a reasonable opportunity to comply. The section’s current equivalent, s 633, refers to a “further reasonable opportunity”. In my view the amendment simply makes express what was previously implicit: that where it is practicable to give warnings, the direction, warnings and an opportunity to comply, having been warned, must be given in that order. It is rational to suppose from the requirement of an opportunity to comply, that if the opportunity is not given, the direction has not been contravened. Since the relevant opportunity is to comply having been given the benefit of the warnings (where practicable), it follows that both warnings and opportunity must precede any contravention.
  1. That construction, that observance of the s 391 requirements is a prerequisite to the commission of any offence, is consistent with the authorities cited by the applicant, more particularly Cox v Robinson. Coleman v Greenland, Donaldson, Powers, etc & the State of Queensland was a civil action against police officers for assault and wrongful arrest.  The plaintiff was arrested for failing to comply with a direction given under s 1074 of the Local Government Act 1993.  Section 1074, which was headed “Direction power of police officers about malls”, enabled a police officer to give a direction in certain circumstances.  The section provided,  

“When giving the direction, the police officer must warn the person it is an offence not to comply with the direction”. 

Cullinane J took the view that that requirement was “mandatory and a prerequisite to the commission of the offence” of non-compliance with the direction. 

  1. Cox v Robinson[35] concerned s 57 of the Police Powers and Responsibilities Act 1997, subsection (1)(b)(ii) of which enabled a police officer to require a person to attend a police station to enable his or her identifying particulars to be taken.  Sub-section (3) stipulated, “A police officer must warn the person it is an offence to contravene a requirement under subsection (1)(b)(ii)”.  This Court held that the warning was “an essential part of a valid requirement under s 57(1)(b)(ii) and should be regarded as an ingredient of the offence” of non-compliance with the requirement.[36]
  1. I do not think that anything in s 391 (as opposed to the Operational Procedures Manual) required Constable Kemper to ask Mr Rowe whether he had a reasonable excuse for failing to comply with the direction. I might say also, on the question of reasonable excuse, that I doubt that s 394 applied, in the period immediately after Constable Kemper gave the direction, to any one but him. The section seems to me directed to police officers actually exercising one of the relevant powers. Consistently with that view, sub-section (6) would qualify sub-section (5), to enable a person whose vehicle or place was being searched to obtain details of those taking part in the search, rather than conferring a general entitlement to information from any officer present when a power was being exercised. However, I need not resolve this question.
  1. What was necessary, unless it was impracticable, was that Constable Kemper warn Mr Rowe that noncompliance with the direction was an offence in the absence of a reasonable excuse.  It was not essential that a warning be given in the precise terms of the section; but a warning which, at best, met only the second limb of what s 391(2) prescribed, did not meet the requirements of the section.  Neither the magistrate nor the judge on the s 222 appeal found that it was impracticable to give such a warning; neither considered the question at all.  The evidence does not suggest that it was not practicable to give that information.  In the absence of the necessary warning, the direction was not contravened, and the police officer who had failed to give the necessary statutory warning could not reasonably have suspected that it was, or that an offence had been committed.

  No obstruction

  1. It follows, then, that in the absence of a suspicion, both actual and reasonable, that an offence had been committed, Constable Kemper was not entitled to arrest Mr Rowe under s 198 of the Police Powers and Responsibilities Act.  He was not, therefore, performing his duties when he attempted to effect the arrest, and an element of the offence of obstruction under s 444(1) of the Act was lacking.

 Orders

  1. Since, for those reasons, I have reached the view that Mr Rowe was wrongly convicted of both offences, in light of the identified errors, I would grant leave to appeal; allow the appeal; set aside the order of the District Court dismissing his appeal against the convictions; quash the convictions for contravening a direction and obstruction; and enter verdicts of acquittal.

 MACKENZIE AJA

  1. Police officers whose lot is to maintain good order and public safety in public places face a multitude of situations which often develop suddenly and have potentially unpredictable outcomes. Officers are required to make assessments, in real time, of the nature of the behaviour and how to respond to it so that good order is restored by means appropriate in the circumstances. Not infrequently, as in this case, the person whose conduct attracts attention will be disposed to be unco-operative when commonsense would suggest that a degree of give and take would avoid an escalated confrontation.

 Sections 37 and 39

  1. The Police Powers and Responsibilities Act 2000 (“PPRA”) gives powers to police officers for the purpose of carrying out their functions and also casts duties on them to exercise those powers in a way that observes safeguards provided in regard to the rights of those who frequent public places.  This case requires analysis, almost in the manner of a video referee or third umpire, of the sequence of brief events that occurred in the Queen Street Mall over 18 months ago.  Emulating those officials, I have viewed the footage of the arrest a number of times in real time and frame by frame.  It involves reviewing the electronically recorded evidence of what happened and of the thought processes, as disclosed in that and in oral evidence, of the parties as it unfolded.  In such a case, care must be taken to keep in mind that:  

“In evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment and not by reference to hindsight.”  (Pringle v Everingham (2006) 46 MVR 58 at 73 – 74; [2006] NSWCA 195 at [67]).

  1. Holmes JA has summarised the essential facts in a way that makes it unnecessary for me to state them in my own way, except where it is necessary to enlarge on aspects of them for emphasis.
  1. The relevant framework within which the matter is to be resolved is provided by ss 37, 39, and 391 of the PPRA, as those sections stood at the time of the incident. Their equivalents are now ss 46, 48 and 633. The former numbering will be used for convenience. Section 37(1) allows a police officer to exercise a power under s 39

“...if a police officer reasonably suspects the person’s behaviour is or has been-

  1. causing anxiety to a person entering, at or leaving the place, reasonably arising in all the circumstances; or
  1. disorderly, indecent, offensive, or threatening to someone entering, at or leaving the place.”
  1. The question whether the particular conduct fell within s 37(1)(b):  

“interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at or leaving the place.”

was, as submissions developed, not pursued.  For the purposes of pt 4 of the PPRA, a particular example of conduct under s 37(1) is a “relevant act”.

  1. Section 39 provides that a police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances. (Section 39(1)). Section 39(3) provides that without limiting subs (1) a direction may require a person to leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours. A direction to leave a stated part of the regulated place is also specifically provided for, in s 39(3)(b). Section 39(4) requires the police officer to tell the person the reasons for giving the direction.
  1. The power to give a direction is restricted to giving directions that are reasonable. What constitutes a “reasonable” direction depends on the circumstances with which the police officer is confronted. The range of options in s 39(3), which does not close the categories of directions that may be given, is consistent with this. The power to give a direction under s 39 is enlivened by a police officer holding a reasonable suspicion that the person’s behaviour is or has been of the character listed in s 37(1).
  1. What is a “reasonable” direction has to be judged in light of the reasonable suspicion that is held. The suspicion must be that held by the police officer (Courtney v Thomson (2007) 170 A Crim R 233; [2007] QCA 49; Ferguson v State of Queensland [2007] QSC 322).  While the holding of a suspicion, which is a state of mind, can be inferred from circumstantial evidence in the absence of any direct evidence from the person concerned, the question is whether the suspicion was in fact held by the person.  The relevance of that proposition becomes apparent later in connection with the approach of the magistrate and of the District Court judge on appeal from the magistrate.

 The Facts 

  1. The chain of events commenced with a Brisbane City Council cleaner asking everyone to leave the public toilets in the Queen Street Mall at the Albert Street intersection so that he could clean them. He explained in evidence that that procedure was followed for security reasons since there was only one cleaner working at night. He said that he allowed a period of about five minutes for patrons to leave. After that period had elapsed he found that the applicant was still in the disabled toilets. It can be inferred from the evidence that the applicant, who was homeless, had gone into the toilets to change his clothing. There was a conversation between him and the cleaner, the tenor of which was that he asserted his right to remain notwithstanding that the cleaner explained that everyone had to leave so that he could do the cleaning. The applicant continued to assert his right to remain in what the cleaner believed was an argumentative way, and condescending as well, in the sense that he thought the applicant was insisting that a cleaner should wait until he was inclined to leave if he wanted the toilets clear before the cleaning started. The cleaner’s evidence suggests he himself was also mildly irritated because any delay would put him behind schedule.
  1. The cleaner’s evidence of what happened next shows he made a comment and the events with which we are directly concerned began to unfold:  

“ … I said ‘I don’t have to put up with this stuff.  I do this for eight hours.  I don’t have to put up with it any longer’.  And that is when I thought it started to get a bit verbal.  I didn’t want to give verbal back so that is when I went upstairs and got the police officers.”

  1. The evidence from the surveillance camera in that part of the Mall shows a person walking from the direction of the entrance to the toilets to the Mall, apparently speaking to police congregated there, and returning with a police officer, with others following at various distances. The summary in paras [37] to [39] of Holmes JA’s reasons sets out accurately what happened after the police officers came into the toilet in response to the cleaner’s request for assistance. Except for those limited parts that are unable to be understood, there is a record of the conversation from its commencement, since Constable Kemper had activated his tape recorder after he entered the toilets.
  1. Having regard to the necessity to identify a “relevant act” and the nature of the reasonable suspicion held and to assess whether the direction was reasonable in the circumstances, the evidence relevant to those issues must be reviewed in some detail. As is the case in forensic situations, inconsistency and imprecision in expression of what was actually in the mind of a participant in the relevant events is difficult to avoid. It is almost inevitable that there will be a process of reconstruction and rationalisation, creating consequential problems. That process is a natural process and not inevitably sinister.
  1. In examination-in-chief, Constable Kemper gave an explanation of what led him to give the direction to leave the Mall and not return within eight hours. He seemed to say that he was not concerned about the initial argumentative behaviour with the cleaner or with him and his colleagues on the way out of the toilets. It was the applicant’s continuing aggressive behaviour which led him to believe that if the applicant remained in the Mall it might lead to violence, putting his and other people’s safety at risk. It was the applicant’s becoming aggressive and belligerent, coupled with the concern that he would not leave the Mall that led the officer to think it “reasonably necessary to give the direction” to leave the Mall. In cross-examination, Constable Kemper maintained, perhaps a little more clearly, that he considered that it would be best if the applicant was not in the Mall because violence might occur if someone there took offence at his belligerent behaviour.
  1. The point in time at which the direction was given was about the time when the applicant and the police officers came out of the toilets. The evidence suggests that it was about the time when they emerged from the toilets and the applicant and Constable Robertson engaged in further discussion, which had commenced in the toilets, about whether or not a rope barricade and a sign stating that the toilets were closed for maintenance was in place at the time the applicant entered the toilets. As it turned out, the applicant’s assertion that they were not was ultimately accepted to be correct. Up to the time when the direction was given, there had been the initial exchanges between the applicant and the cleaner, the applicant’s comments when the police had come into the toilets, the exchanges there between the police and the applicant and an incident halfway up the ramp of the toilet where it was alleged that he had stopped, clenched his fist and, by his body language, displayed a belligerent attitude after which, when Constables Kemper and Robertson warned him to desist, he did so.
  1. After the exchange, as the applicant and the police emerged from the toilets, between Constable Robertson and the applicant about whether the rope barrier and sign had been in place when the applicant entered the toilets, the following passage of conversation occurred. The decipherable conversation ends when the arrest shown by the surveillance camera commenced. The conversation is as follows:  

“K:Listen to me ok you have now committed a public nuisance offence by arguing with him by arguing with me.  I am Constable Robert Kemper from City Station.

R1:Like hell you are.

K:I am now directing you under section 39 of the Police Powers and responsibilities Act, due to your behaviour and due to the offence, to leave the Queen Street Mall.

R1:Take your hands off me.

K:If you come back to the Queen Street Mall in 8 hours – hey I’m talking to you.  You will be arrested.  I’m talking to you do you understand that.

R1:I want UI

K:Leave by this way now.  If you come back within 8 hours you will be arrested, leave immediately.

R2:Do you understand that direction?

K:I am now warning you that if you do not leave now you will be arrested.  Do you understand that?  I am now giving you an official warning

R1:Your name and number.

R2:I have already given it to you Sir I am not going to repeat myself

R1:Your name Sir.

K:Sir, If you do not leave now you will be arrested

R1:You refuse to give me your name and number as well do you?

R1:Sir.  Do you refuse: [R2] Ben ARNDT.

K:You will be under U1 I will give you one more chance if, to leave.  You have got my  name.

R:I haven’t got your name.

K:I told you my name and now I am directing you to leave.

R:And your number please.

K:One more.

R1:You refuse?

K:You are now under arrest for contravening U1 don’t U1 (sounds of struggle).”

  1. Notably, as part of the process of giving the direction and immediately before doing so, Constable Kemper gave his name, rank and station. It was conceded by senior counsel for the applicant that that was sufficient compliance with his obligation under s 394. However, the applicant remained agitated and argumentative. Constable Kemper clearly told him that he would be arrested if he did not comply with the direction to leave the Mall and if he returned to it within eight hours. Part of the applicant’s obstinacy in continually demanding names, after the obligation had been discharged by Constable Kemper, seems to have related to his wanting to write the information down. With regard to the actual arrest, the following passage of Constable Kemper’s evidence-in-chief summarises the chain of events from his perspective:  

“I hugged him from the top so then I’ve – he’s, sort of, stopped and braced himself. At that point I’ve gone, “Okay, sir. We are going to go to the ground. We are going to go to the ground”. He didn’t move out. That is when the other constable has taken his leg. At that point he started thrashing out with his legs towards the other constable. I didn’t see that, I just could feel his legs, sort of, kicking as he was, like, swimming, you could feel the kicking. I then have taken a controlled take down to the ground so he wasn't injured and he was safely in my custody at all times.”

  1. When he was cross-examined about the way the arrest was carried out, the effect of his evidence was that, once what he considered to be resistance began, the risk of a threat to the police officers’ well being, including transmission of disease by bodily fluids, made it desirable to quell it and effect the restraint promptly.
  1. Not all of the incident is captured by the surveillance camera. The camera appears to scan the area rather than remain fixed on any particular area. Because of this, there is no vision of the participants leaving the toilet. However, the camera was obviously capable of being focused on a particular area continuously if required, because it recorded the arrest shortly afterwards, a little distance away from the toilet entrance and near a seat in the Mall. Because the initial part of that vision is taken from a distance and is not particularly clear, it is difficult to identify from it what precipitated the arrest of the applicant. There is evidence, not inconsistent with the transcript of the field recording that immediately prior to his arrest, the applicant had a pen and paper and was asking for the names of police officers. As already mentioned Constables Kemper and Robertson had previously given their names when in the toilet.  Constable Arndt, who became actively involved during the arrest, gave his name as well. 
  1. When the surveillance vision commences, the police are in the vicinity of the seat in the Mall. The arrest is shown in a sequence of events lasting less than one minute, according to the time imprinted on the tape. The arrest is relevant for the purposes of this application, since one of the charges was of obstructing a police officer in the performance of his duties. An electronic record of a fast-moving incident is always open to interpretation, but what the tape appears to me to show, expressed as clinically as possible, is as follows. As to the approach to be taken to using video footage, see R v Smallwood [1997] QCA 91.
  1. When the camera focuses on the area near the seat where the applicant had gone, it can be seen that he is standing up and that there are police standing nearby facing him, perhaps a couple of metres away. Then, two of them move towards him and take hold of him, probably bringing his arm or arms behind his back. His body bends forward at the waist and then straightens up, with the police officers still holding him. Then his body moves away relative to the police officers. Whether this was because he was pulling away or because of some other dynamic is ambiguous. To put it neutrally, up to that point, it is not apparent that he was submitting to the arrest.
  1. Then, the two police, one on each side of the applicant and still holding him, move away from the bench area. The applicant is upright at that stage and at least one and possibly both officers have the applicant’s arms bent behind his back; one, whom it seems to be agreed was Constable Kemper, clearly has hold of him in the shoulder/ neck area. As they walked forward about three steps, the applicant was still standing upright but, for reasons that are difficult to be certain of from the tape itself, his body bent forward until the torso was approximately parallel to the ground, and then below horizontal.
  1. At that point a third police officer, said to be Constable Arndt, pulled the applicant’s left leg sideways. Whether it was because of a voluntary action by Constable Arndt or involuntarily as an application of the laws of physics once the applicant began to lose his balance, the leg appears to then move in a more normal forward direction which caused the applicant to subside to the ground on his right side, landing on his right buttock. He was then rolled over so that he was face down on the ground.
  1. A police officer, who it seems to be agreed was Constable Kemper, appeared to pin him to the ground with his knee, by dropping it on to some part of the applicant’s body, possibly as far down as the leg, (as the magistrate interpreted it), and then moved further up his body. While he was still on the ground, the police officer identified as Constable Arndt, moved to a position near the lower part of the applicant’s body. Because of the positioning of the various police officers and the orientation of the applicant’s body at that time, it is difficult to be definitive about what happened then, and in particular, whether the applicant was moving his legs. However, it can be said that the police officer at the lower part of his body moved his knee in the direction of the applicant’s body, probably in the region of the legs, on four occasions. At about the time the third and fourth of these occurred, the applicant appeared to change position slightly but noticeably. Soon after that, no more than 40 seconds after the initiation of the arrest, the process of handcuffing him proceeded without anything requiring further comment.
  1. After those events had finished, the applicant remained handcuffed on the ground for about four minutes until he was put in the back of a police wagon which was driven away about five minutes later. The movement of the knee by Constable Arndt was described by Constable Kemper as a peroneal. From the description given of it by Constable Kemper it is apparently a technique taught to police officers in training and involves application of force to the peroneal region of the leg, the objective being to prevent a person who is being subdued from kicking out with his leg.
  1. It is not necessary for me to resolve the issue of the quality of the degree of force used in effecting the arrest to decide the appeal. Bearing in mind the caution needed in using hindsight, the explanations of police procedure, and the findings of the magistrate, who had the opportunity to observe Constable Kemper giving evidence for a protracted period, which, at least, do not take an adverse view of his credibility, (even though the magistrate’s reasons cannot be accepted in certain other respects involving legal questions), I am of the view that it is appropriate not to make a finding as to the issue, the basis of which would principally be the surveillance vision which is, in some important respects, equivocal.

     Section 394 (now s 637)

  1. The applicant had, in addition to repeatedly demanding names, also demanded numbers, which, under the PPRA are not required to be given. With regard to the position of the police officers other than Constable Kemper, the drafting of s 394 is such that different interpretations might be legitimately advanced. However, there is, in my view, some weight in the view that none of the other police present were obliged by s 394(4), at that point, to give him their details since they had not given him a direction or engaged in any of the other conduct referred to in s 394(1). This conclusion implies that s 394(6) cannot found such an obligation because contextually, it is only an adjunct to s 394(5). On that view, the senior police officer searching a vehicle or place is required to comply with s 394(2) to (4) irrespective of whether or not there has been a request. Other police officers engaged in a search are required to do so only if asked for the information in s 394(2) or (3). The issue need not finally be resolved to dispose of this case. It does, however, raise an important issue that begs clarification to give certainty to police officers and the public as to what their respective obligations and rights are.
  1. Section 394 does not give a person in respect of whom the power is being exercised the right to more than to be informed of the name, rank and station of the police officer giving the direction. Nor is an obligation expressly cast on a police officer under s 394 to allow the person in respect of whom the power is exercised to delay with compliance with a s 39 direction for the purpose of reducing information to writing. In cases, which are probably rare, where the circumstances permit it and the person has an immediate capacity to record the name in writing, prudence might ordinarily dictate that the opportunity to complete doing so might be afforded; in some circumstances, it may be one factor relevant to what is a reasonable opportunity to comply with a direction (s 391(3)). But in the present case, it is not difficult to understand that, given the applicant’s apparent persistent refusal to acknowledge that he had just been told by the officer what his name, rank and station were, conditions were not conducive to that happening.

  Decisions of Magistrate and District Court Judge

  1. I am content to adopt, without restating in my own words, Holmes JA’s summaries in the sections of her reasons relating to the magistrate’s findings as to the lawfulness of the direction and the District Court judge’s conclusions on appeal. I also agree with her conclusions in paras [70] and [71] that the reasoning in each court below was flawed.

  Was the Direction Reasonable?

  1. It was submitted that the direction given was not reasonable in the circumstances. It was accepted by senior counsel for the applicant that the applicant had caused some anxiety to the cleaner by arguing with him about leaving the toilet. It was also accepted that the incident in which his body language showed minor and transient aggressiveness towards the police officers as they were coming up the ramp from the toilet amounted to behaviour within s 37(1)(a) and/or (d). It was submitted that no other relevant act had occurred before the direction was given. It was submitted that it was not unreasonable for the applicant to dispute, correctly, the allegation that he had come into the toilet after it had been closed, or to ask the police officers to give their particulars and to write the information down. It was submitted that it could not be established beyond reasonable doubt that it was reasonable to give the direction to leave the Mall in the circumstances. Alternatively, if it was, the direction to leave it for eight hours was not proportionate to what had happened.
  1. The incident in the present case is unlike the kind of disorderly conduct or violence, often generated by alcoholic excess, that would be likely to attract police attention in the Mall. In such cases, once individuals or groups have engaged in violence, there is a real likelihood of consequential violence unless measures are taken to minimise the opportunity for it to occur. The present case is not obviously of that kind. The applicant’s conduct was directed essentially against officialdom, first in the form of the cleaner and then the police. It was an event where his argumentativeness and obstinacy were apparently generated by what the applicant believed to be a denial of his rights. It was, realistically, not a kind of anger that was likely to be taken out on other people in the Mall; his age is also a contra-indication. I am satisfied that there was a proper basis for a direction to be given which may have required him to leave the Mall for a period that allowed time for his anger to cool, but I am not persuaded that it was reasonable to require the applicant to leave the Mall and not return for eight hours.
  1. Having said that, in the kinds of cases where there are, objectively, factors conducive to a continuation of aggressive behaviour, randomly or directed to particular persons, a direction of that kind may often be appropriate. For my part, if it were the judgment of a police officer that it was appropriate in such a case to direct the person to leave the Mall for an extended period, considered necessary by him in the circumstances then prevailing, to ensure that the factors that were generating the potential for future trouble would ordinarily have dissipated by the end of the period, and that judgment was not clearly unreasonable, it would not be likely that a submission merely that a period of different duration would have sufficed would be compelling.
  1. The outcome of the present case depends on its own unusual facts. Having regard to all of the circumstances, it is my view that it was not a reasonable direction to require the applicant to leave the Mall for eight hours, and that therefore the appeal against conviction on the charge of contravening s 445(2) of the PPRA, must be allowed.

Section 391 Warnings

  1. Section 391 of the PPRA is as follows:  

391Safeguards for directions or requirements

  1. This section applies if a police officer gives someone a direction or makes a requirement under this Act.
  1. If the person fails to comply with the direction or requirement, a police officer must, if practicable, warn the person –

(a)it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and

(b)the person may be arrested for the offence.

  1. The police officer must give the person a reasonable opportunity to comply with the direction or requirement.”
  1. It proceeds on the premise that a police officer gives a person a direction under the PPRA, which Constable Kemper did. If the person to whom a direction has been given fails to comply with the direction the police officer must, if practicable, give the warnings and must give the person a reasonable opportunity to comply with the direction. It is not suggested that it was not practicable to give the warning in this case; indeed, in the passage of the field tape quoted above, Constable Kemper gave a direction to leave the Mall and told him that he would be arrested if he came back within eight hours. He then specifically warned him that if he did not leave “now” he would be arrested. When the applicant kept demanding that he give his name, Constable Kemper said he would give him one more chance to leave. When the applicant again demanded his name and number Constable Kemper said:

“You refuse”

and then arrested him.

  1. During that conversation, Constable Kemper appears not to have expressly said what is contained in s 391(2)(a). He did not directly say that it was an offence to fail to comply with the direction unless the person had reasonable excuse: but the notion clearly expressed that the applicant would be arrested if he did not leave at once would ordinarily convey to an ordinary person that it was an offence not to comply. There was no evidence that the applicant is not of ordinary intellect. The qualification expressed in the words “unless the person has a reasonable excuse” was not included in anything he said.
  1. The wording of s 391(2)(a) mirrors the language of s 445(2). Where a direction, like the present one, contains two distinct obligations, there may be a reasonable excuse, for example, for returning to the Mall within the period of exclusion but not for failing to take advantage of a reasonable opportunity to leave. Whatever purpose the words in s 391(2)(a) serve other than stating accurately the statement of the offence in s 445, it does not in my view, require the police officer to ask whether there is any reasonable excuse for not complying. Also, realistically, stating a person’s potential liability in a more draconian way by omission of any mention of the exception cannot expose the person given the direction to a greater risk of contravening the direction due to misunderstanding of its consequences. The only detriment is likely to be that a person with a reasonable excuse may not take advantage of it for fear of contravening the terms of the direction. The purpose of s 391(2) is to ensure that the person is aware that failure to comply with the direction will be an offence with the consequences that flow from that. If the only flaw in giving the warnings was that the exception had not been mentioned, it would not appear to be a cogent reason to treat the warning as inadequate having regard to its purpose. It is a case where, provided the substance of the warning is given, the failure to state it in the form it appears in the statute is not fatal. But it is also obvious that giving it in the words of the statute would eliminate any room for argument about whether the substance of it had been conveyed.
  1. Of more consequence is s 391(3). The sequence of steps set out in s 391(2) and (3) supports the view that s 391(3) had a similar meaning to that now expressed more clearly in the amended and renumbered analogue of s 391, s 633. While there were indications of obstinacy about complying with the direction on the part of the applicant, the rapidity with which events moved does not persuade me that he was given a further reasonable opportunity to comply with the direction after the warning was given. That bears on whether an offence has been committed (Cox v Robinson [2001] 2 Qd R 261; [2000] QCA 454).  That is an additional reason to the unreasonableness of the period of exclusion, and probably a more fundamental one, which leads to the conclusion that the orders proposed by Holmes JA with regard to the offence of failing to comply with a direction should be made. 

Section 444 – Obstruction

  1. With regard to the offence of obstruction it is not always the case that a charge for such an offence must necessarily fail if the primary charge is dismissed. Veivers v Roberts, ex parte Veivers [1980] Qd R 226 illustrates that point.  The power of arrest in s 198 of the PPRA is premised on the police officer reasonably suspecting that an adult has committed or is committing an offence for a variety of reasons, one of which is that the offence is one against s 445 of the PPRA.  In Veivers v Roberts, the validity of the conviction for resisting a member of the police force in the execution of his duty turned on the proposition that a police officer may have reasonable grounds for believing that an offence has been committed, although he is under a misapprehension as to the law.  In that case, the issue was whether the primary offence, which depended on proof that the respondent was found without lawful excuse in an enclosed yard, had been made out.  The respondent was on private property in an area that was fenced off.  As a matter of construction of the Act, it was held that the land was nevertheless not an enclosed yard within the meaning of the Vagrants, Gaming and Other Offences Act 1931.  It was held that a constable may have reasonable grounds for believing that an offence may have been committed although he was under a misapprehension as to the law. 
  1. The present case is distinguishable from that kind of situation. The failure to allow the applicant a further reasonable opportunity to comply with the direction is of a different character from the error in Veivers.  The fatal difficulty with the conviction for an offence against s 444 of the PPRA of obstructing a police officer in the performance of his duties is that the power depends on the existence of a reasonable suspicion that the applicant was committing or had committed an offence of contravening a reasonable direction given pursuant to s 39 of the PPRA.  Giving a further reasonable opportunity to a person to whom a direction is given is a step in a sequence of statutory requirements which must be complied with by a police officer before an offence of failing to comply with the direction is complete.  If the police officer who gives the direction does not give an opportunity that is objectively reasonable to the person to comply with the direction, a suspicion that the person has committed an offence of failing to comply with it falls short of being a reasonable suspicion.  That the officer may have merely misjudged, rather than disregarded, what was sufficient to constitute a reasonable opportunity does not assist in the circumstances of this case.  The conviction cannot, therefore, stand.
  1. I agree with the orders proposed by Holmes JA.

Footnotes

[1] The relevant reprint is No 4K, as in force from 1 July 2006.

[2] Re-numbered as s 791 from reprint No 5 onwards.

[3] Re-numbered as s 790.

[4] Rowe v Kemper [2007] QDC 187 at [24] - [26].

[5] (2003) 214 CLR 118 at 126-7 [25].

[6] (1979) 142 CLR 531 at 551.

[7] (2008) 234 CLR 124 at 132 – 134.

[8] Re-numbered as s 48.

[9] Section 37(4).

[10] (1985) 62 ALR 460.

[11] Re-numbered as s 46.

[12] See these reasons, above at [8].

[13] [1962] NZLR 1109 at 1113 (Henry J).

[14] (1994) 76 A Crim R 343 at 350 (White J).

[15] Now re-numbered as s 633(2) and s 633(3).

[16] Now re-numbered as s 633(2) and s 633(3).

[17] [2001] 2 Qd R 261; [2000] QCA 454.

[18] Re-numbered as s 637(6).

[19] Re-numbered as s 637(6).

[20] See these reasons, below at [80].

[21] Re-numbered as s 365.

[22] [1980] Qd R 226.

[23] Rowe v Kemper [2007] QDC 187 at [33].

[24]    Unintelligible.

[25] The section numbers used are those which applied at the time of the events in this case.

Section 37 was subsequently renumbered as s 46.

[26] Later renumbered as s 48.

[27] The section has since been re-numbered as s 633, and amended slightly.  It is now expressed to apply where a police officer gives someone an “oral” direction or requirement; and sub-section (3) requires the officer to give the person a further reasonable opportunity to comply.

[28] Now renumbered as s 791(2).

[29] Renumbered as s 365.

[30] Renumbered as s 790.

[31] (2003) 214 CLR 118.

[32] [2004] QSC 37.

[33] [2001] 2 Qd R 261.

[34] Now renumbered as s 637.

[35] [2001] 2 Qd R 261.

[36] At p 263.

Close

Editorial Notes

  • Published Case Name:

    Rowe v Kemper

  • Shortened Case Name:

    Rowe v Kemper

  • Reported Citation:

    [2009] 1 Qd R 247

  • MNC:

    [2008] QCA 175

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Holmes JA, Mackenzie AJA

  • Date:

    27 Jun 2008

Litigation History

Event Citation or File Date Notes
Primary Judgment NA - -
Appeal Determined [2009] 1 Qd R 247 27 Jun 2008 -

Appeal Status

{solid} Appeal Determined (QCA)