Millar v Commissioner of Police
[2025] QCA 113
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- Unreported Judgment
- Appeal Determined (QCA)
- Millar v Commissioner of Police[2025] QCA 113
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Millar v Commissioner of Police[2025] QCA 113
Millar v Commissioner of Police[2025] QCA 113
SUPREME COURT OF QUEENSLAND
CITATION: | Millar v Commissioner of Police [2025] QCA 113 |
PARTIES: | MILLAR, Andrew John (applicant) v COMMISSIONER OF POLICE (respondent) |
FILE NO/S: | CA No 185 of 2024 DC No 3468 of 2023 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2024] QDC 114 (Richards DCJ) |
DELIVERED ON: | 24 June 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 16 April 2025 |
JUDGES: | Bradley JA and Burns and Ryan JJ |
ORDER: | The application for leave to appeal is refused. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant was found guilty after trial in the Magistrates Court of public nuisance contrary to s 6 of the Summary Offences Act 2005 (Qld) – where the applicant appealed to the District Court pursuant to s 222 of the Justices Act 1886 (Qld) on grounds which included that the decision was against the weight of the evidence and that evidence needed by the defendant was destroyed by the prosecution – where the District Court judge dismissed the appeal – where the applicant applies for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) from the District Court on the grounds that the decision was against the weight of evidence, the decision was affected by fraud, and the court invented evidentiary reasons not submitted by either party – whether there is a reasonable argument that there is an error to be corrected – whether leave to appeal is necessary to correct a substantial injustice Criminal Code (Qld), s 268, s 269 Summary Offences Act 2005 (Qld), s 6 Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7AA (repealed) Austin v Commissioner of Police [2022] QDC 230, cited McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255, cited |
COUNSEL: | The applicant appeared on his own behalf S J Muir for the respondent |
SOLICITORS: | The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent |
- [1]THE COURT: The applicant was convicted of the offence of public nuisance[1] after a trial in the Magistrates Court in October 2023. The applicant was fined $650 and a conviction was recorded. The applicant appealed against his conviction to the District Court. His appeal was dismissed on 8 August 2024. He seeks this Court’s leave to appeal against that dismissal. For the reasons which follow, the application for leave to appeal is refused.
The particulars of the offence
- [2]The particulars of the public nuisance offence were contained in a document which was provided to the applicant ahead of the trial and to the Magistrate at trial. Relevantly, it read (paragraphs numbers added for ease of reference):
- It will be alleged that on the [19th day of July 2022], the defendant Andrew John MILLAR was within the library at the Brisbane District Court House.
- The defendant was approached by Senior Protective Service [sic] Officers due to a complaint by another member of the public. Following conversations with the defendant, the defendant has begun to leave the library via the public elevator.
- Three Senior Protective Services Officers, Jennifer WRIGHT, Jason BRYANT and Kent SHARMAN have walked with the defendant to the public elevator.
- The defendant has entered into the public elevator, followed by officers BRYANT and SHARMAN.
- As officer WRIGHT enters the elevator and takes her place in it, the defendant without warning lunges towards her, leaning in closely to her face. For a brief moment, the defendant’s face was inches away from hers, before he is pushed away by Officer BRYANT.
- It will be alleged that the defendant’s behaviour towards Officer WRIGHT was threatening and/or disorderly.
- And that this occurred in a public place, namely an elevator open to public access in Brisbane District Court House.
- And the abovementioned officers were members of the public.
- And that the defendant’s described behaviour interfered with the peaceful passage through this public place by the members of the public or was likely to interfere with the peaceful passage of members of the public.
- [3]The allegation in (vi) that the applicant’s behaviour was threatening and/or disorderly reflected the element of the offence of public nuisance contained in section 6(2)(a) of the Summary Offences Act 2005. Section 6(2) states:
“A person commits a public nuisance offence if –
- the person behaves in –
- a disorderly way; or
- an offensive way; or
- a threatening way; or
- a violent way; and
- the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.”
- [4]The senior protective services officers referred to in the particulars were based at the QE II Courts of Law Building at the relevant time, providing security for the courthouse and those in it. The evidence at trial included CCTV footage of what occurred inside the lift. The applicant was convicted on the basis that his behaviour in the lift was threatening, albeit in a momentary way.
Proposed grounds of appeal
- [5]The grounds upon which the applicant wishes to appeal to this Court against the decision of the District Court judge, if leave is granted, are as follows:
- “(1)The decision was against the weight of evidence.
- The decision was affected by fraud.
- The court invented evidentiary reasoning not submitted by either party.”
- [6]The applicant submitted that leave ought to be granted because of the grounds of appeal set out above, or because of “the concession by DPP that material CCTV was destroyed by QPS prosecution”.
- [7]The fraud referred to in proposed ground (2) seemed to include what the applicant asserted was:
- false evidence by Wright about whether she spoke to the member of the public, referred to in particular (ii), a Ms X, before she approached the applicant in the library; and
- false or inadequate information or evidence given to the Magistrate about the loss of the CCTV footage referred to in paragraph [6].
- [8]The applicant’s primary grievance concerned CCTV footage of the applicant and the three protective services officers (PSOs) named in the particulars, on level 12 of the QE II court building, just before they got into the lift in which the offence was committed. That footage was somehow lost and not available at the applicant’s trial. The applicant asserted that the lost footage would have been to his advantage. He argued, in effect, that he was entitled to the lost CCTV evidence before the summary trial and he should not have been convicted without it.
- [9]His complaint in proposed ground (3) concerned what he said were impermissible assumptions made by the District Court judge about what the lost CCTV footage would have shown; and what the applicant could have done with it if it had been available.
- [10]With respect to the “false” evidence allegedly given by Wright about Ms X: Ms X was not called at trial. However, she provided the applicant with an affidavit for the purposes of his appeal to the District Court in which she said that she had been in the library when the PSOs spoke to the applicant but they did not speak to her. For what it is worth, the librarian did not see a PSO speak to Ms X before they spoke to the applicant.
The applicant’s evidence and his “defence”
- [11]Before the Magistrate, the applicant gave evidence that he had been on his mobile phone in the Supreme Court Library discussing an issue about court transcripts. He was due to appear in court at 10 am that day, self-represented. Ms X, a member of the public who was also in the library, told him off about talking on the phone. He waved her away and completed his call. The next thing he knew, Wright and another PSO entered the library.
- [12]Other evidence at trial established that, after her interaction with the applicant, Ms X asked the librarian to call courts’ security. The librarian made the call and told security that there had been “an altercation” in the library. Officers Wright and Sharman responded to the call and, when they got to the library, the librarian pointed out Ms X and the applicant to them. A little later, Wright called Bryant to the library to assist.
- [13]Returning to the applicant’s evidence, he said (emphasis added):
“Wright kept calling me “Mate, we’ve got a complaint that you have assaulted someone, mate”. And I said, “I haven’t assaulted anyone.” And she said, “Okay, well we’ve got an alleged assault. Anything you want to say about that?” all that sort of stuff. And I said, “Look, I haven’t assaulted anyone.” I didn’t see her stop and talk to Ms [X] at all. They just walked straight around from the librarian’s desk and came to me because I could see up the thing. And they demanded an identification, which I couldn’t actually give because I didn’t have a licence on me. And I think we had an exchange about demanding my name and what’s the power and that, and I said “I’ve got caught [sic] so I’m going to go” and they said, “Okay, that’s fine with us. Happy with that.” and at that point in time there was three officers and they basically walked within about 20 centimetres from me, around me, all the way from my desk to the lifts and when I was waiting to get in the lift because – it probably took a good 30 seconds because it takes a while for the lift to come up to the 12th floor because – and Ms Wright was continuing to sort of talk to me in a derogatory manner calling me “mate” and staring at my face and saying stuff and just sort of stirring the pot. And it just basically got to, it affected me too much. So that once – as they said they hopped in the lift close to me and I basically responded to something she said to me in the lift in the same manner which she spoke to me, which unfortunately that footage is now not available. And that’s it. So they said I didn’t attempt to strike her in any way. I just basically communicated back how she was communicating to me. And then you’ve seen the rest …”
- [14]Under cross-examination, the applicant said that he was “intimidated and threatened and bullied [by the PSOs] because of what I know happened since they came and spoke to me and made accusations repeatedly that I had assaulted some woman and it just hadn’t happened …” He said the officers walked within 10 or 20 centimetres of him (as he left the library), “like a trident”. He said that whilst waiting for the lift, Wright continued to call him “mate” and made “claims”. He said he ignored her, but it was threatening and intimidating and it “got on top” of him, and that’s why he did what he did.
- [15]He accepted that, in the lift, he came within inches of the side of Wright’s head and his head was towards her. When asked if he said something to her in an aggressive tone, he said, “… as Officer Sharman said he heard, “How do you like being called ‘mate’?” and I just called her mate”.
- [16]He did not accept that what he did intimidated the PSOs in the lift with him – because, he said, Wright had done the same thing, as (he said) would have been depicted on the missing CCTV. He did not accept that he had behaved in a disorderly way: he said he “simply communicated an exact set of words that she was using on me … it’s not “How you going, mate?” it was “mate” like I’m going to talk to you like you’re a dickhead. “Mate, you’ve assaulted a woman, mate” … “What have you got to say about that, mate?”” He said that continued while he was waiting for the lift.
- [17]Wright accepted that the PSOs followed the applicant closely out of the library. She did not accept that she continued to have “communications” with the applicant as he was waiting to enter the lift.
Magistrate’s findings
- [18]In his closing submissions to the learned Magistrate, the applicant said inter alia that her Honour could not be satisfied beyond a reasonable doubt that he was not simply acting in the same manner as the PSOs had acted towards him. And without the missing CCTV footage, her Honour could not be persuaded beyond reasonable doubt of his guilt.
- [19]In reaching her verdict, the Magistrate noted that the applicant gave evidence about the PSOs closely following him to the lifts, as the PSOs accepted. Her Honour referred to the cross-examination of the PSOs about their conduct just before they got into the lift. Her Honour stated correctly that provocation was not a defence to public nuisance but acknowledged that it was important to determine the circumstances surrounding the acts relied on to prove the offence, and to take those circumstances into account in determining whether the offence was made out.
- [20]Having considered those circumstances, and Mr Millar’s account, her Honour did not find that they provided an answer to the charge. Her Honour found the applicant guilty of it (emphasis added):
“… the version [of] Mr Millar has been put forward. He raised in submissions and other comments through the hearing that he was relying on provocation, that the actions of the officers provoked him, in effect, into acting in the way that he did, and I did point out to him that the defence of provocation is only available in relation to an offence of which an assault is an element, and it clearly is not an element of the offence that Mr Millar’s faced.
It is not available for this offence, but I acknowledge and I, of course determine that the circumstances surrounding the acts relied upon must be taken into account and I also acknowledge what Mr Millar’s evidence was. As I said in relation to that, Mr Millar’s given his account. I, of course, look at what his account is. I have certainly considered it. I don’t consider that it provides any satisfying answer to the prosecution case. That doesn’t mean that I have taken any negative view of his evidence, but the evidence of his physical act and the evidence of the words that are said to Ms Wright during the course of the lift incident certainly are not disputed. I don’t consider that his account, as I said, gives any particular slant to the prosecution case.
I still therefore need to consider the prosecution evidence and I need to consider whether or not the evidence establishes the elements of the of those that I’ve already referred to. It would seem to me that the combination of the words, the combination of the actions, would suggest to me that the prosecution have established, even in a momentary way, the defendant has behaved in a threatening way. The movement shows a sudden movement towards Officer Wright. It shows that he does in fact place his head within a short distance from Officer Wright’s head. That’s the way in which he’s moved.
His words would seem to be not disputed … by himself and his contention that he’s responded in the way that he has been communicated with, in my view, doesn’t provide any particular defence to the charge. It doesn’t provide that he acted lawfully. It certainly is a momentary response. It’s a momentary act that is relied upon. I certainly am satisfied that the lift is a public place … and I am satisfied that the officers do fall into the category of members of the public and that, in a very clinical approach to that – Mr Millar’s actions, that his behaviour did interfere with the peaceful passage through or the enjoyment of the lift by the officers in the lift.
So ultimately, I am satisfied that the prosecution have established the elements that are necessary to be established and that, even in a momentary way, he certainly did behave in a threatening way and that did interfere with the enjoyment of the public place by the officers in the lift. So I find you, Mr Millar, guilty of the charge.”
The appeal to the District Court
- [21]The applicant’s appeal to the District Court from the conviction was heard on 3 June 2024. The grounds of the applicant’s appeal were:
- “1.The decision was against the weight of the evidence.
- 2.The proceeding was affected by fraud and fabricated evidence by the prosecutor.
- 3.The elements of the offence were not made out.
- 4.Evidence needed by defence was destroyed by [the] prosecution.”
- [22]At the appeal, the applicant relied upon the affidavit of Ms X,[2] and the evidence of the librarian at trial to argue that Wright lied about speaking to Ms X in the library.
- [23]Wright testified she had spoken to Ms X first (before she spoke to the applicant). Ms X said the PSOs did not speak to her. The applicant said that Wright perjured herself and acted in “bad faith and bad credit”.
- [24]He also contended that the missing CCTV footage had been either destroyed or withheld by the prosecution because it would have assisted him.
- [25]The learned District Court judge asked the applicant what the missing footage would have shown. He said (from the bar table) that it would have shown the threatening behaviour of the PSOs. Her Honour asked what they did which was threatening. The applicant said, “They were standing around me, tilting their heads and all at me, and talking to me in the same manner that I --- It was like a trident … there was three of them, so between the 360 degrees, you would say they were equidistant, 120 each. From memory, probably inside of a foot from me, tilting in towards me and talking to me in negative ---”. Her Honour asked the applicant what the PSOs were saying. He said it went from his head a month later and he was not going to make something up: but it was threatening and menacing. He claimed that the conduct of the PSOs was worse than his conduct. Her Honour asked the applicant how that would make him not guilty. He said there was a defence of provocation. When told there was not, he said there was a defence of mental anguish. He said he had been badgered by Wright, who made up the allegation of assault. The PSOs followed him closely, stood over him, and talked to him in a threatening manner. But the footage was missing. He argued, in effect, that in the absence of that evidence, his trial was not fair.
The decision of the District Court judge
- [26]The District Court judge approached the applicant’s appeal correctly.[3] In dismissing it, her Honour considered the trial evidence, noting the difference between the evidence of the librarian and PSO Wright about whether she spoke to Ms X. Her Honour discussed the applicant’s evidence about what went on while he and the three PSOs were waiting for the lift and what he and the PSOs said about how closely they were following him.
- [27]Her Honour stated that Ms X’s affidavit was of little relevance apart from its relevance to the accuracy of Wright’s evidence that she spoke to Ms X in the library.
- [28]Her Honour referred to the missing CCTV footage and the applicant’s arguments that the footage would have shown the aggression of the PSOs and justified his behaviour in the lift. Her Honour accepted that the missing CCTV footage should have been disclosed but she did not accept that it had been deliberately destroyed. Nor did she accept that there was fraud or fabrication involved in the information or evidence around it being missing.
- [29]At [22] of her reasons, the learned District Court judge identified the “real question” in relation to the missing footage, namely, whether it could have provided a defence for the applicant. Her Honour was prepared to accept that it would have shown the security officers following him very closely, with Wright as close to him as he was to her in the lift. It would not have revealed what was said (the footage had no sound) so her Honour made no finding that Wright was verbally harassing the applicant. But, her Honour observed, the question was, even if Wright had verbally harassed the applicant, whether the actions of the security officers prior to their entering the lift could result in a defence to a charge of public nuisance.
- [30]At [24], her Honour stated that provocation under section 268 and 269 of the Criminal Code was not a defence to the charge of public nuisance. At [25], her Honour concluded that the Magistrate was correct in finding that whatever happened outside the lift did not provide a defence to the charge. And at [38] – [39], her Honour held that the Magistrate was entitled to conclude that the applicant had behaved in a threatening way towards Wright; and that it was open to the Magistrate to find, beyond reasonable doubt, that the offence had been proven.
- [31]In concluding that the applicant had not raised a defence, her Honour referred to Austin v Commissioner of Police [2022] QDC 230. In that case, Austin challenged his conviction for public nuisance on the basis that he had been: “Provoked by Council giving my rates notice to police without a warrant. Major conflict of interest”. The conviction was upheld by Allen KC DCJ on the basis that it was not a defence to, nor excuse for, public nuisance that the defendant believed he was entitled to act as he did because of the unlawful conduct of the council; and that the appellant’s contention that his behaviour might be excused for such a reason was misguided and wrong in law.
Consideration
- [32]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. Leave to appeal is not given lightly: an applicant will have already had the benefit of two judicial hearings.[4]
- [33]The applicant elaborated on and expanded upon his grounds of appeal at the oral hearing before this Court, asserting a variety of errors in fact finding and in the application of the law. However, this Court’s review of the evidence given at the trial before the Magistrate supports the conclusion that the applicant was properly convicted of the offence of public nuisance.
- [34]There is no basis for concluding that the applicant’s conviction was unreasonable. The applicant has not established that he has suffered a substantial injustice or that there has been a misapplication of the law or a misunderstanding of the evidence leading to his conviction, warranting the granting of leave.
- [35]The applicant does not contest his behaviour in the lift, which was captured clearly on the CCTV footage tendered at trial. Nor is he challenging the evidence that he got very close to Wright’s face and called her “mate”.
- [36]In his evidence before the Magistrate, in his submissions to her, in his appeal to the District Court judge, and in his application for leave to this Court, the applicant’s primary focus has been on what occurred before he and the PSOs entered the lift. His argument has been, in effect, that he is not guilty of the offence of public nuisance because he was “provoked” to act as he did – not in the section 268/269 of the Code sense (he now understands that that defence does not apply) but, to use his words, in the sense of their conduct “getting on top of him” or causing him “mental anguish”: driving him to act as he did.
- [37]To put his position in the language of potential legal defences to summary criminal conduct: as the applicant sees it, he has a reasonable excuse for his conduct; and he has been concerned that he is unable to independently prove how the PSOs behaved towards him in the lift foyer (to make out his “defence”) because that CCTV footage has been lost.
- [38]The difficulty for the applicant is that, in Queensland, the legislature expressly decided not to allow a defence of “reasonable excuse” for an offence of public nuisance.
- [39]The offence of public nuisance was introduced as section 7AA of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (VGOOA) in 2003. The legislation introducing it required the then Crime and Misconduct Commission (CMC) to review the use of the section 18 months after its commencement, and to report on its review. The VGOOA was repealed and replaced by the Summary Offences Act 2005 (SOA). The offence of public nuisance was carried over, in identical terms, and is now in section 6 of the SOA.
- [40]The CMC’s report, entitled Policing public order: A review of the public nuisance offence was delivered to the Speaker of the Legislative Assembly in May 2008. One of the issues expressly considered by the CMC was whether there ought to be a defence of “reasonable excuse” for the offence of public nuisance. The creation of such a defence was not recommended by the CMC. Nor, obviously, has it been inserted by the legislature.
- [41]However, the Magistrate proceeded on the basis that the relevant surrounding circumstances were to be considered in determining whether the applicant had committed the offence of public nuisance. The Magistrate treated the relevant circumstances as including that which happened before the applicant and the PSOs got into the lift and concluded that those circumstances provided no satisfying answer to the charge.
- [42]The Magistrate was correct in concluding that nothing in the PSOs behaviour in the lift foyer satisfactorily answered the prosecution case. The District Court judge was correct in holding that the Magistrate was right about that: the conduct of the PSOs in the lift foyer did not provide the applicant with a defence.
- [43]The District Court judge framed the critical question on the appeal correctly – that is, whether footage of what happened in the foyer could (not would) have provided the applicant with a defence. Her Honour answered that question on the assumption that the footage would have shown Wright standing as close to the applicant as he was to her in the lift; and on the assumption that Wright had been verbally aggressive to him in the lift foyer. Those assumptions were obviously favourable to the applicant.
- [44]Her Honour correctly concluded that the CCTV footage could not have provided the applicant with a defence because section 268/269 provocation did not apply to the offence; nor could there be a defence on the basis that the applicant considered himself entitled to act as he did because of the prior conduct of the PSOs. Any prior conduct of the PSOs could not provide the applicant with a reasonable excuse defence.
- [45]The CCTV footage showed that the applicant entered the lift first, at about 9.36.19 am, apparently calmly. He pressed the button for level 5 (the level on which his court case was to be heard) and, it seems, held the lift doors open for the PSOs, also apparently calmly. Bryant was in and against the back wall of the lift by 9.36.21 am and Sharman was in and opposite the applicant by 9.36.22 am. The applicant said nothing to them. It was not until Wright entered at 9.36.24 am when, as it was put, the applicant got up in her face. Bryant instinctively moved to protect Wright, reflecting the threatening nature of the applicant’s conduct as perceived by the others present in the lift.
- [46]It did not matter whether Wright lied about speaking to Ms X in the library before she spoke to the applicant. What mattered was how the applicant behaved in the lift – viewed in appropriate context.
- [47]The application for leave to appeal is refused.
Footnotes
[1] Section 6 of the Summary Offences Act 2005.
[2] Admitted as fresh evidence.
[3] An appeal by way of re-hearing conducted by a District Court Judge under sections 222 and 223 of the Justices Act 1886 is a re-hearing in the sense of a review of the record of the proceedings before the Magistrate, and of fresh evidence admitted by leave. In this case, the fresh evidence was in the form of an affidavit by Ms X.
[4] McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39].