Tseng v Queensland Police Service
[2021] QCA 12
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- Unreported Judgment
- Appeal Determined - Special Leave Refused (HCA)
- Tseng v Queensland Police Service[2021] QCA 12
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Tseng v Queensland Police Service[2021] QCA 12
Tseng v Queensland Police Service[2021] QCA 12
SUPREME COURT OF QUEENSLAND
CITATION: | Tseng & Anor v Queensland Police Service [2021] QCA 12 |
PARTIES: | TSENG, En-Tzu (first applicant) TSENG, Tzu-Wei (second applicant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO/S: | CA No 352 of 2019 CA No 353 of 2019 DC No 2938 of 2018 DC No 2939 of 2018 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2019] QDC 245 (McGill SC DCJ) |
DELIVERED ON: | 9 February 2021 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 25 September 2020 |
JUDGES: | McMurdo JA and Boddice and Jackson JJ |
ORDERS: | In CA No 352 of 2019 Leave to appeal is refused. In CA No 353 of 2019 Leave to appeal is refused. |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – OTHER MATTERS – where the first applicant was convicted of one charge of public nuisance, one charge of obstructing a police officer and one charge of assaulting a police officer – where the second applicant was convicted of one count of public nuisance and two charges of obstructing a police officer – where both applicants appealed their convictions under s 222 Justices Act 1886 (Qld) – where a Judge of the District Court of Queensland dismissed each of the applicants’ appeals against those convictions – where both applicants seek leave to appeal the judgment of the District Court – where the applicants contend that the District Court Judge erred in law and in fact in dismissing those appeals – whether leave to appeal should be granted |
COUNSEL: | The first applicant appeared on her own behalf, and on behalf of the second applicant, E Tseng D Nardone for the respondent |
SOLICITORS: | The first applicant appeared on her own behalf, and on behalf of the second applicant, E Tseng Director of Public Prosecutions (Queensland) for the respondent |
- [1]McMURDO JA: I agree with Boddice J.
- [2]BODDICE J: On 16 July 2018, in the Magistrates Court at Holland Park, the first applicant was convicted of one charge of public nuisance, one charge of obstructing a police officer and one charge of assaulting a police officer, each committed on 10 January 2018.
- [3]On the same date, in the same Court, the second applicant was convicted of one charge of public nuisance and two charges of obstructing a police officer, each committed on 10 January 2018.
- [4]On 16 July 2018, the Magistrate ordered that each of the applicants be fined in respect of the offences and ordered to pay witness expenses. No convictions were recorded in respect of either applicant.
- [5]Both applicants appealed their convictions under s 222 of the Justices Act 1886 (Qld), contending that the Magistrate erred in fact and law in convicting each of them of each charge.
- [6]On 5 December 2019, a Judge of the District Court of Queensland dismissed each of the appellants’ appeals against those convictions.
- [7]Each applicant now seeks leave to appeal the judgment of the District Court. Many grounds of appeal are relied upon by the applicants. In summary, they contend that the District Court Judge erred in law and in fact in dismissing those appeals.
Charges
- [8]All of the charges arose out of an incident at a property on the south side of Brisbane, when officers of the Brisbane City Council were undertaking enquiries in relation to an alleged filling of land without lawful permission.
- [9]The first applicant, who owned the land, had previously refused to grant permission for Council officers to enter upon the land to undertake a physical examination to detect whether filling had occurred on that land.
- [10]Those officers returned on 10 January 2018, having obtained a warrant to enter the land and to gather evidence about the commission of any offences.
- [11]Whilst the Council officers were engaged in investigations on the subject land, the first and second applicants, who are siblings, arrived with their father. A verbal dispute arose between them and the officers.
- [12]The dispute between the applicants and those officers was the subject of a videotape recording by one of the Council officers.
- [13]During the course of that dispute, police officers attended the property. A dispute arose between the applicants and those police officers. That dispute was the subject of recordings made by one of the police officers.
Magistrate’s decision
- [14]The first applicant was found to have assaulted a police officer by kicking him in the leg and to have obstructed a police officer by resisting her lawful arrest. The first applicant was also found to have created a public nuisance by her conduct, having first been warned that she was creating a public nuisance.
- [15]The second applicant was found to have obstructed police officer on two occasions when interfering in the first applicant’s arrest by pushing and grabbing the police officers, notwithstanding being warned to stay away. The second applicant’s behaviour was also found to constitute one count of creating a public nuisance.
Primary Judge’s decision
- [16]The primary Judge correctly observed that the appeal to the District Court was by way of a rehearing, on the record. The primary Judge carefully considered the evidence placed before the Magistrate, reaching his own conclusions in the drawing of inferences from primary facts established by that evidence. In doing so, the primary Judge observed that the events in question were the subject of video recordings and an audio recording.
- [17]Having considered that evidence, the primary Judge found that the evidence supported a conclusion that the events occurred in an area of road reserve, which was a public place, as is any other road. Further, the evidence established that each of the appellants behaved in a disorderly and offensive way, whereby their behaviour was likely to interfere with the peaceful enjoyment of the public place by members of the public, which would include the police officers, the Council officers and bystanders.
- [18]The primary Judge found that a suggestion that the first appellant had not behaved in a disorderly, offensive, threatening or violent way was inconsistent with the contents of the video and audio recordings. Further, the first appellant was warned that she risked arrest for a public nuisance offence; the first appellant ignored that warning by persistently shouting down of the police officer; and her arrest in such circumstances was reasonable and necessary.
- [19]The primary Judge found that the evidence also supported a conclusion that the first appellant had kicked the male police officer in the leg, without his consent. That conclusion was supported by not only witnesses, but also photographs of a mark left on the police officer’s uniform. Those actions constituted the offence of assaulting a police officer. The video footage also supported a conclusion that the first appellant persistently struggled against police, in an attempt to prevent her arrest, which constituted the offence of obstructing police in the performance of their duty.
- [20]In reaching the conclusion that the first appellant was properly convicted of each charge, the primary Judge noted that, although there were internal inconsistencies in the various accounts of witnesses, there was ample evidence to support the first appellant’s convictions of each of the charges.
- [21]In respect of the second appellant, the primary Judge found that the evidence supported a conclusion that the second appellant had acted violently towards police officers, yelling aggressively after the first appellant’s arrest, thereby satisfying the elements of the public nuisance charge. The evidence also supported a finding that the second appellant grabbed police officers, thereby obstructing them in the course of their duties. The primary Judge found there was nothing ambiguous about the directions given to the second appellant, both verbally and by body gesture, and that those directions were adequate warning in the circumstances.
- [22]The primary Judge found that the guilt of each of the appellants on each of the charges had been established beyond reasonable doubt and dismissed the appeal.
- [23]The primary Judge also concluded that, whilst there was no argument advanced that the penalty was excessive, the imposition of fines with no conviction being recorded could not be said to be excessive in the circumstances.
Consideration
- [24]Leave to appeal a decision of the District Court, sitting in its appellate jurisdiction, will usually only be granted where the appeal is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected.[1]
- [25]Whilst the applicants advance many grounds of appeal, a review of the evidence given at trial and of the primary Judge’s reasons supports a conclusion that there was no error, in fact or law, in the primary Judge’s conclusion that each applicant was properly convicted of each of the charges.
- [26]The primary Judge reached that conclusion after a careful consideration of the evidence given at trial, including the video and audio recordings of those events. Nothing in those reasons supports a conclusion that the applicants’ convictions of each of the offences was contrary to the evidence. There is also no basis to conclude that those convictions are as a consequence of any misapplication of legal principles.
- [27]No substantial injustice to the applicants has been established by either applicant. There is also no reasonable argument that their convictions arose as a consequence of any misapplication of law or misunderstanding of the evidence.
Orders
CA No 352 of 2019
- [28]I would refuse leave to appeal.
CA No 353 of 2019
- [29]I would refuse leave to appeal.
- [30]JACKSON J: I agree with Boddice J.
Footnotes
[1] Pickering v McArthur [2005] QCA 294 at [3]; McDonald v Queensland Police Service [2017] QCA 255 at [39].