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  4. Watego v State of Queensland - [2022] QCAT 341

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Watego v State of Queensland[2022] QCAT 341

Watego v State of Queensland[2022] QCAT 341

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Watego v State of Queensland and ors [2022] QCAT 341

PARTIES:

Chelsea joanne ruth watego

(applicant)

v

state of queensland

TWG

UXH

(respondents)

APPLICATION NO/S:

ADL023-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

27 September 2022

HEARING DATE:

29 to 31 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. The tribunal’s record should show the name of the applicant as Chelsea Joanne Ruth Watego instead of Chelsea Joanne Ruth Bond.
  2. The complaint is dismissed.
  3. The non-publication order made on 24 September 2020 as varied by the order of 17 March 2021 is continued.  Other than to the parties to the proceedings, the publication of any information that may enable the second respondent or the third respondent to be identified is prohibited.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where applicant was arrested and handcuffed by police outside a night club in the early hours of the morning and taken to the watchhouse – whether the treatment was lawful – whether she was treated less favourably on the basis of race – whether this should be inferred – whether she was treated less favourably than an alleged actual comparator was treated or a hypothetical comparator would have been treated

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – where applicant had published an award winning book in which she alleged that she had been assaulted by unnamed police officers and that they had used excessive force during her arrest – where, if the officers were named by the tribunal, a cause of action for defamation could be established because the allegations were untrue – whether it was in the interests of justice not to name the officers to prevent their privacy being unlawfully or arbitrarily interfered with, and their reputation unlawfully attacked by what was said in the book

Anti-Discrimination Act 1991 (Qld), s 10, s 101, s 133, s 191, s 204

Human Rights Act 2019 (Qld), s 25, s 31

Liquor Act 1992 (Qld), s 165, s 142ZZB

Police Powers and Responsibilities Act 2000 (Qld), s 365, s 615

Angelopoulos v Silkwire Pty Ltd & anor [2022] QCAT 52

Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118

Chamberlain v The Queen (1983) 153 CLR 521

Couchy v Birchley [2005] QDC 334

Courtney v Thomson [2007] QCA 49

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Department of Health v Arumugam [1988] VR 31

Dovedeen Pty Ltd & Anor v GK [2013] QCA 116

Eaves v Donelly & Anor [2011] QDC 207

Feldman v Buck [1966] SASR 236

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

Jankovic v Director of Public Prosecutions [2020] NSWCA 31

Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1

McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

Penhall-Jones v State of NSW (No2) [2008] FMCA 832

Petrak v Griffith University & Ors [2020] QCAT 351

Purvis v New South Wales (2003) 217 CLR 92

R v O'Donoghue (1988) 34 A Crim R 397

Sanchez & Sanchez v Commissioner of Police [2021] QDC 076

Thomas v Mowbray (2007) 233 CLR 307

Valuers Board of Queensland v Murphy [2022] QCAT 295

APPEARANCES &

REPRESENTATION:

Applicant:

Dan O'Gorman SC and Joshua Creamer (counsel) instructed by the National Justice Project.

Respondents:

Susan Anderson (counsel) instructed by the QPS Legal Unit.

REASONS FOR DECISION

  1. [1]
    This is a race discrimination complaint brought by Professor Chelsea Watego (the applicant) against the State of Queensland, as the maintainer of the Queensland Police Service (the first respondent), and against two police officers (the second and third respondents).
  2. [2]
    The complaint arises from the following basic facts.  The applicant describes herself as Aboriginal and a South Sea Islander.  In the early hours of a Saturday in December 2018, she was forcibly removed by security guards from the Beat night club in Fortitude Valley in Brisbane when it closed. 
  3. [3]
    After being removed, she was standing on the pavement outside the club.  She was berating the security guards who had removed her when a man who was standing nearby got involved in the argument and there was then an argument between the applicant and the man.  The security guards from the club were able to keep the applicant and the man apart. 
  4. [4]
    Two police officers then arrived on the scene on bicycles.  On their arrival, the security guards pointed out that it was the applicant who needed their attention and told them what had happened.  After briefly trying to talk to the applicant, the officers arrested her and placed her in handcuffs.  She was transported to the watchhouse.
  5. [5]
    The applicant complained to the Queensland Human Rights Commission (QHRC) that these police actions amounted to less favourable treatment of her on the basis of race.[1]  This complaint was referred to the tribunal.[2]
  6. [6]
    Following the referral, the legal and factual issues to be determined by the tribunal were identified, using the tribunal’s usual method of issuing directions requiring ‘contentions’ to be filed by both sides.
  7. [7]
    In the amended contentions filed on the applicant’s behalf the less favourable treatment relied on was set out as follows (the reference to the ‘unknown white male’ is to the man with whom the applicant had an argument on the pavement outside the club):[3]
    1. (a)
      The officers only investigated the applicant’s conduct, and only restrained and ultimately arrested the applicant.  By comparison, they failed to investigate the conduct of the unknown white male and failed to take any steps to question or restrain the white male, notwithstanding that it was apparent the white male was the aggressor in the altercation and that he continued to behave abusively and aggressively in the officers’ presence.
    2. (b)
      The officers failed to investigate the applicant’s complaints about the racial and verbal abuse and the threatened assault to which she was subjected by the unknown white male.  They failed to investigate those complaints notwithstanding that (i) the applicant and her Aboriginal friends had repeatedly alerted the officers to those matters and (ii) the unknown white male’s racist, abusive and violent behaviour would have been apparent to the officers, including by reason that he continued to be physically restrained by the club’s security in their presence.  Had the hypothetical non-indigenous woman been in materially similar circumstances, the officers would have at minimum enquired as to her wellbeing and investigated her complaints, and likely taken steps to arrest the abusive male.
    3. (c)
      Instead, the officers arrested the applicant without warrant within approximately 20 seconds of arrival at the Club and as such, an arrest without warrant was not authorised in law under s365 of the Police Powers and Responsibilities Act 2000 (Qld).  That is, officers arrested the applicant on charges of obstructing police and failing to leave licensed premises, handcuffed her, and arranged for her to be transported to the Brisbane City Watchhouse by paddy wagon.  They did so notwithstanding that the Queensland Operational Procedures Manual provides that an officer should only commence proceedings against a person by way of arrest if no appropriate alternative exists: at [3.4.9].  To the extent that the officers would have taken any action against the hypothetical non-indigenous woman in materially similar circumstances, they would have issued her with an infringement notice or taken some other less coercive step than arresting her.
    4. (d)
      The officers used excessive and unnecessary force during the applicant’s arrest.  The applicant did not physically resist, and it was unnecessary to physically restrain or handcuff her to effect the arrest, but nevertheless both officers involved themselves in restraining her and using handcuffs.  The officers treated the applicant as violent, unpredictable, and resisting arrest, despite her not behaving in this manner and her Aboriginal friends informing the officers that rather she was distressed by reason of the unknown male’s conduct.  If the officers would have arrested the hypothetical non-indigenous woman in materially similar circumstances (which is denied), they would have done so without the use of the unnecessary and excessive force used against the applicant.
    5. (e)
      The officers failed to take any steps to de-escalate the situation and, having restrained and handcuffed the applicant and placed her under arrest, failed to discontinue the arrest.  Even if the officers would have arrested the hypothetical non-indigenous woman in materially similar circumstances (which is denied), they still would have sought to de-escalate the situation, determined it was more appropriate to deal with that person other than by charging her with an offence, and ultimately discontinued the arrest at the scene pursuant to Chapter 14, Part 4 of the Police Powers and Responsibilities Act 2000 (Qld).
  8. [8]
    If the heads of alleged less favourable treatment are set out temporally for convenience in decision making, then put briefly they become:
    1. (a)
      approach: in the first instance, approaching the applicant and not the man;[4]
    2. (b)
      arrest and restraint by using handcuffs: having approached the applicant, arresting her and handcuffing her when this was unwarranted, contrary to policy, unlawful and a use of excessive force;
    3. (c)
      choice of investigation: failure to investigate the man either upon the applicant’s or her friends’ complaints, or upon it being apparent that he was the aggressor;
    4. (d)
      failure to abate and removal: failing to take any steps to de-escalate the situation or to discontinue the arrest, and arranging for the applicant to be transported to the watchhouse.
  9. [9]
    The applicant relies on the man as an actual comparator and says that he did not have the attribute of race and was treated more favourably.  In the contentions, the applicant also describes the material circumstances of a hypothetical comparator.  The respondents say the man is not a proper comparator and disagree with the applicant’s formulation of a hypothetical comparator.
  10. [10]
    The parties have agreed the following facts.  That on 1 December 2018, commencing at about 4.00am, Prof. Watego:
    1. (a)
      had been asked to leave The Beat Night Club at the close of trading by security guards on several occasions;
    2. (b)
      did not leave immediately when asked to do so leave because she sought time to arrange a shared Uber booking before she left the relative safety of the inside of the Beat; and
    3. (c)
      was removed from the Beat by security.
  11. [11]
    The first respondent agrees that it will be vicariously liable for any contravention of the Anti-Discrimination Act 1991 (Qld) (ADA) by the second and third respondents because they acted in the course of their work for the first respondent.[5]
  12. [12]
    It is not in dispute that the ‘area’ under which liability arises under the ADA if direct discrimination is shown is the ‘in administration of State Laws and programs area’ in section 101 of the ADA.
  13. [13]
    In their contentions in reply, and in their written opening and written outline in final submissions, the respondents say that the area of the club is a volatile, dangerous, fast paced and difficult policing environment, and that the police have a duty of care not only to persons in the applicant’s position but also to other members of the public, and they had to have regard for their own safety.
  14. [14]
    It is said that when they arrived on the scene at first the officers thought that they should speak to the man but were then informed by the security guards that the applicant had failed to leave the licensed premises immediately upon request and that she had been asked to leave at least 15 times and had been forcibly removed from the club.  It is said that a decision about who to approach had to be made quickly and it was reasonable for the officers to rely on this information.  It is said that when they approached, the police had no reason to identify the applicant as a South Sea Islander and she did not identify herself as such to them.
  15. [15]
    It is said that the arrest was lawful, reasonably proportionate and legally defensible and that it was necessary to handcuff her for the safety of the officers and others because of the state that she was in.
  16. [16]
    As for failing to respond to her complaint about the man, the respondents say that the only complaint she made about the man was that he had sworn at her; since she herself was calling the officers ‘white cunts’ and saying that ‘my husband is a coppa, he is going to cook you cunts’ the officers considered that her allegation that the man had sworn at her was not a major issue in the situation.  Also, it is said that by the time it might have been possible to talk to the man, he had left.
  17. [17]
    As for not de-escalating the situation and discontinuing the arrest, the respondents say that she was presenting as heavily intoxicated, not listening to her friends to calm down, unpredictable, abusive, threatening and belligerent towards the police.  The respondents say that the police spent nearly five minutes trying to calm her down but this did not work so the only option was to send her to the watchhouse to sober up.

The evidence adduced before the tribunal

  1. [18]
    In consultation with the parties at the beginning of the hearing I decided to hear evidence as to remedy at the same time as hearing evidence as to liability, although I have not had full submissions as to remedy.
  2. [19]
    I heard from the applicant.  I heard from the applicant’s ex-husband whose evidence mostly went to remedy.  I also heard from a friend of the applicant who was with her in the club that evening, and who gave evidence about events in the club and outside the club afterwards.  I heard from a work colleague of the applicant who had been in the club but not with the applicant, but who witnessed events outside the club afterwards.
  3. [20]
    For the respondents I heard from two security guards from the club and the manager of the club.  They gave evidence about what had happened in the club and what had happened outside the club afterwards.  I heard from the second and third respondents.  I also heard from a senior sergeant who was operations leader for Fortitude Valley Police Station, and I heard from a Chief Superintendent of police in the Brisbane District both of whom gave evidence about police practices and procedures in the Safe Night Precincts like the one in which these events occurred.  I read the documents in the hearing bundle and in the exhibits, and the referral from QHRC with documents attached.[6]  I also watched CCTV footage from inside and outside the club, and from the body cameras of the two officers.

The applicable law and how I have decided the complaint

  1. [21]
    Section 10 of the ADA defines direct discrimination on the basis of an attribute and the wording of the section requires a comparison to be made either with an actual comparator or a hypothetical one or sometimes both.[7]  It is necessary to ask whether the respondents treated the applicant less favourably than the actual comparator if there is one and whether the respondents would have treated the applicant less favourably than a hypothetical comparator.
  2. [22]
    As stated in Purvis v New South Wales (2003) 217 CLR 92 however, the central question in these cases ‘will always be – why was the aggrieved person treated as he or she was?’.[8]  So I will be deciding the ‘reason why’ the officers did what they did.  
  3. [23]
    When deciding whether the man is an actual comparator and when constructing a hypothetical comparator so that the comparison required by section 10 can be done, it seems to me to be right to do this after deciding the reason why. 
  4. [24]
    This is because if I decide the reason why first, this enables me to decide the ‘material circumstances’ of the proposed actual comparator and of the hypothetical comparator.  It seems to me that if I were to do this the other way round, by deciding the material circumstances of the hypothetical comparator first, this would pre-judge the outcome of the true issue in this case, the reason why.  I explain this approach in Petrak v Griffith University & Ors [2020] QCAT 351,[9] which found approval in the Appeal Tribunal in Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118, at least in the alternative.[10]
  5. [25]
    For a complaint of this type to succeed, section 204 of the ADA requires the complainant to prove on the balance of probabilities that the respondent has contravened the Act.  In other words, the complainant has the burden of proof.  This is recognised as difficult to do because discrimination is rarely overt and usually covert.  Also, discrimination can happen unconsciously, because of a prejudice which is not even known to the perpetrator.  So, in this complaint, I am urged on the applicant’s behalf to find in her favour by drawing an inference that she was discriminated against.

Drawing an inference

  1. [26]
    It is common ground that the tribunal can draw such an inference in an appropriate case.  The parties differ however on whether it is appropriate in this case.
  2. [27]
    On the applicant’s behalf, several facts and events are relied on as being sufficient for the tribunal to draw such an inference.  Some of these facts and events are the same as the alleged less favourable treatment itself, but some other things are said to be relevant.  They are the decision to speed process the applicant, an alleged failure to adhere to the police situational use of force model, an alleged failure adequately to communicate with the applicant, the alleged fact that the main offence was not proceeded with and the evidence for the charge of obstructing a police officer in performance of duties being weak, alleged collusion between the officers and their alleged dishonesty, and because the arresting officer called the applicant a ‘peanut’.  I deal with all these below.
  3. [28]
    On the respondents’ behalf, it is said that there is no basis on which an inference can be drawn because there was no evidence that the officers deviated from standard police practices, and nothing demonstrated that any of the treatment was on the basis of race.
  4. [29]
    It is not submitted that the tribunal’s ability to draw an inference applies when making the comparison with the treatment of an actual or hypothetical comparator as required by section 10 of the ADA.  It is not said for example, that the power of inference could in some way affect a finding whether or not an actual comparator was treated less favourably or whether a hypothetical comparator would have been treated less favourably.  To try to apply the tribunal’s powers of inference when making such comparisons would seem to introduce unnecessary pitfalls.
  5. [30]
    Instead, on the applicant’s behalf it is said that the tribunal can infer that the applicant was treated in the way alleged ‘because of her race’,[11] and that she ‘was the victim of unlawful discrimination’.[12]  In my view the way this is put is correct.  The tribunal’s power of inference may therefore answer the ‘reason why’ question. 
  6. [31]
    In the context of a victimisation complaint, in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243,[13] I examined when the tribunal could infer that the reason for a decision made by the respondent was one prohibited by the ADA.  On the authorities I concluded that to draw such an inference requires rational deduction and not mere speculation, guesswork or assumption.  It seems to me that the same approach should be taken in this complaint.
  7. [32]
    When deciding whether to draw an inference, the quality of the respondent’s explanation if proffered can be considered by the decision maker.  As Fullagar J said in Department of Health v Arumugam [1988] VR 319, if an explanation is proffered but found to be dishonest, then this might allow an inference to be reached from the primary facts with greater certainty. 
  8. [33]
    But where the evidence shows that the more probable explanation for the events is an innocent one and not discriminatory, then there is no room for an inference that discrimination has occurred.
  9. [34]
    Since in deciding whether to draw an inference depends on consideration of the explanation for the alleged less favourable treatment, together with a consideration of other facts and events, it is right to consider this at the end, because it is a consideration of all the circumstances taken together.[14]

Decision process

  1. [35]
    Since I am being asked to draw an inference from what was done by the police officers, inevitably I shall need to concentrate on the explanations of the officers and consider whether I accept them in the light of all the evidence.
  2. [36]
    Where it is said on the applicant’s behalf that the respondents acted unreasonably, it is not said that unreasonableness itself proves that there was less favourable treatment on the basis of race.  That is the correct approach.  Direct discrimination is not proved by showing merely that the act complained of was unreasonable.[15]  However as mentioned below, it could be proved if the tribunal inferred from the unreasonableness that the act complained of was on the basis of race. 
  3. [37]
    Since the alleged less favourable treatment of the applicant on the evening in question was in several temporal steps as set out in (a) to (d) above, I will need to consider each of these in turn.  Since it is submitted that the applicant was treated unreasonably in respect of each of the steps, and that each step was unwarranted, and in some cases contrary to policy and procedures, and in the case of the arrest and use of handcuffs was unlawful, it is convenient to decide these matters when considering each step.
  4. [38]
    Some findings of fact can be made now, but when considering each step I shall need to make further findings of fact.

Main findings of fact

  1. [39]
    In the early hours of Saturday 1 December 2018, the second and third respondents  were rostered and working together as members of the Fortitude Valley Police Bike Squad to work the Safe Night Precinct shift.  These duties included ‘but were not limited to: High Visibility patrolling of the Fortitude Valley Safe Night Precinct, enforcing liquor and good order offences, assisting with highly intoxicated persons and ensuring the safety of members of the public within the Safe Night Precinct’.[16]
  2. [40]
    I accept the respondents’ case that the area of the club in Fortitude Valley, is a volatile, dangerous, fast paced and difficult policing environment.  It contains about seventy-six licensed venues and had, at the time of the incident before me, up to 40,000 people socialising within any given Friday or Saturday night.  There were between 15 and 25 officers tasked to maintain safety and to stop anti-social behaviour in the Safe Night Precinct on any given Friday or Saturday night.[17]  In this policing environment, police officers need constantly to assess the chance of, and guard against, violence towards themselves and members of the public.
  3. [41]
    Concentrating on the second respondent as the main decision maker that evening, he had been policing the Safe Night Precinct from the Fortitude Valley Police Station for 4 or 5 years.  I accept that over that time he had developed much experience of the types of incidents which could happen and how people sometimes reacted.  Of relevance to the complaint before me, the second respondent was convincing when he told me that in his experience, particularly where there is a high level of intoxication, anyone can be violent regardless of their age, sex or race, and that verbal aggression between persons can quickly lead to violence if it is not checked.  He was convincing when he told me that it is an extremely volatile situation when people are leaving the clubs, because there are lots of people around, most of whom are intoxicated, and that disturbances on the pavements outside a club which had recently closed were very common. 
  4. [42]
    The third respondent had a similar length of experience as the second respondent and held the same views.
  5. [43]
    At about 4.10am the two officers were flagged down to deal with an incident not related to the one at the club. 
  6. [44]
    While attending to that incident the second respondent noticed that there was something happening at the club which was down the hill and readily visible.  The second respondent could see that there was a disturbance near the entrance to the club, there were people everywhere and a verbal altercation was taking place, and that security guards were attempting to deal with the matter.  He considered that the disturbance needed police attention.
  7. [45]
    By that time other officers had arrived at the incident for which the officers had been flagged down and were helping with it, so both officers cycled down to the club with the second respondent in the lead.

Applicant’s behaviour prior to arrest

  1. [46]
    What happened can be seen from the footage from the camera outside the club and can be seen and heard from the officers’ body cameras which they had switched on.
  2. [47]
    On the pavement outside the entrance to the club there was a metal barrier.  When the officers arrived, the applicant was on the right-hand side of the barrier and there was a man on its left-hand side.  They were arguing.  The entrance to the club was between them.
  3. [48]
    When considering ‘approach’ below, I explain why having approached the incident, the officers concentrated on the applicant and not the man. 
  4. [49]
    When the officers approached the applicant she was out of control; she was loudly and repeatedly shouting that the man had sworn at her but that she had not sworn at him and she was waving her right arm about and pointing at the man as she was shouting this.[18]  She ignored the second respondent’s requests to calm down and stop, but called him and the police generally, ‘cunts’.

Prior to arrest did the applicant move towards the man and head towards the entrance to the club?

  1. [50]
    The relevance of this is that the second respondent’s explanation for arresting the applicant and for using handcuffs is that after the officers’ approach and when they were able to stop her moving closer towards the man and towards the entrance to the club, she did in fact take a step in that direction.
  2. [51]
    On the applicant’s behalf however, it is said that this did not happen.  It is said that it is not possible to see from the bodycam footage that the applicant started to move towards the man and to head towards the entrance to the club.  It is said that all the applicant did was to turn away from the officer, and this was because he was a stranger touching her.[19] 
  3. [52]
    The events are much more clearly shown on the footage from a camera outside the club,[20] and accords with the evidence from the officers.  The second respondent approached the applicant and tried to speak to her and held her by the left arm.  A few seconds later, the applicant made a definite movement towards the man which was the same direction as the entrance to the club.  The second respondent says the applicant took a step in that direction and this does appear to be the case. 
  4. [53]
    It can also be seen on the footage that although in the first instance the third respondent left it to the second respondent to deal with the situation, but was close by, the applicant’s movement towards the man and the entrance to the club caused the third respondent to come round to block her way.[21]
  5. [54]
    It is correct therefore that the applicant moved towards the man and headed towards the entrance to the club.

The arrest and handcuffing

  1. [55]
    It was only a short period of time between the officers’ approach to the applicant and her arrest and handcuffing.
  2. [56]
    After the applicant started to move towards the man and the entrance to the club, both the second and third respondents took hold of her, the second respondent holding her by the left arm and the third respondent holding her by the right arm and blocking her way.[22]
  3. [57]
    It was the second respondent who arrested the applicant and almost simultaneously he placed her in handcuffs.  The second respondent told her that she was under arrest for failing to leave licensed premises.

Applicant’s behaviour after arrest

  1. [58]
    Despite that by that time being in handcuffs and being held by the two officers, the applicant continued to shout and argue and managed to take two steps towards the man and the entrance to the club.[23]
  2. [59]
    The second and third respondent moved her away from the man and the entrance to the club (about 5 metres away).[24]  They thought this would calm her down.
  3. [60]
    The applicant’s behaviour between the arrest and being put in the police van was accurately summed up by the third respondent in his witness statement as being ‘frenzied and disorderly’.  He said:[25]

(the applicant) was rude, belligerent and antagonistic, continually speaking over the top of the (second respondent) and refusing to cooperate with police

  1. [61]
    The third respondent told me that after many years working in this Safe Night Precinct, compared with numerous disturbances he had attended involving highly agitated, aggressive, and intimidating people, this behaviour was ‘extreme’ and in the top 3 of those incidents.
  2. [62]
    After the applicant was placed in the police van she could be heard shouting and kicking the sides of the van from inside and it was visibly rocking.[26] 
  3. [63]
    When the applicant was in the police van, the second respondent made enquiries of the witnesses to check that there was evidence to support the applicant’s arrest.  He spoke to one of the security guards from the club and was told that the applicant had ‘taken a swing’ at one of the security guards in the club.

Other factual matters

Disorderly behaviour in the club

  1. [64]
    There was much evidence presented by both sides about what happened in the club before the events on the pavement outside.  This is relevant for the factual context and may be relevant for remedy.  The evidence also helped me to decide whether the applicant was heavily intoxicated and whether she was violent that evening (it being said on the applicant’s behalf that these matters are relevant to whether the police reacted proportionately), and to decide the legitimacy of the arrest applying a purely objective test.
  2. [65]
    The applicant refused to leave the club at closing time and shouted at the security guards using obscenities, pointing at them and waving her arms about.  One of the security guards appeared to her to be white and she was racially abusive towards him.
  3. [66]
    The tactic used by the security guards to remove the applicant was as follows.  There were three security guards and the manager was also there.  They pointed to where she had to go, told her to walk that way, and blocked her way back.  From time to time, they pushed her a little further towards the exit.  Meanwhile however, the applicant frequently turned back towards the security guards and continued her tirade.  The process of cajoling the applicant out of the club in this way continued for about three minutes. 
  4. [67]
    Then the applicant attempted to strike the security guard who appeared to be white by flailing her arm towards his face.[27]  This was described by the security guards perhaps too dramatically, as ‘taking a swing’.  Immediately after this, the security guard placed her in a hold from behind and frog marched her towards the exit of the club.  The applicant then dropped her weight to the floor.  The security guard then dragged her on her back along the floor. 
  5. [68]
    By that time she was in the foyer near the exit to the street.  She walked the remainder of the way to the street still turning and berating the security guards as she left.  At the entrance outside the club the applicant continued to berate the staff.  The manager told her that she must move away from the entrance, and if she did not, he would call the police.  She refused to move away and he made the call.[28] 
  6. [69]
    It is correct to say that the applicant was disorderly in the club and had created a disturbance.  It is incorrect to describe her behaviour that evening, as is done on her behalf, as non-violent, because she did try to strike one of the security guards.

Level of intoxication

  1. [70]
    It is said on the applicant’s behalf that the extent to which the applicant was intoxicated goes to the reasonableness of the actions of the police officers that evening.[29]  The question of her level of intoxication is also relevant for the lawfulness of the arrest when viewed from an objective basis.[30]
  2. [71]
    It is said that she was ‘not particularly intoxicated’ in the evening in question and this is shown by the lack of evidence that she could not do things in a list which would normally be affected by such intoxication.[31]  I do not agree with this.  It can be seen on the footage from inside the club that she was unsteady on her feet,[32] and on her departure from the club she can be heard and seen speaking in a manner suggesting that she was heavily intoxicated.[33]
  3. [72]
    Outside the club the applicant was determined that she and no one else was to be heard, and her tirade was repetitive and intense.  Even when in the police van, she continued shouting and was kicking the side of the van from inside causing it to rock.  This was irrational behaviour because it could not improve her position in any way. 
  4. [73]
    I think it is clear from the applicant’s behaviour both inside and outside the club that she was heavily intoxicated.

Court outcome

  1. [74]
    This is relevant because it is relied on as a matter which would lead the tribunal to draw an inference that the treatment was on the basis of race, because (it is said) the first respondent prosecutor was prepared to accept a guilty plea from the applicant on a lesser charge instead of pressing ahead with the charges of failure to leave licensed premises and obstruction of a police officer.  It is said to be ‘very telling’ that the obstruction charge was not proceeded with.[34]
  2. [75]
    Speed processing required the second respondent as the arresting officer to decide in the street what the applicant should be charged with.  Once the applicant was in the police van, the second respondent finalised his enquiries by speaking to one of the security guards to make sure the evidence did support the proposed charge of failure to leave licensed premises.  On this basis, he decided that it was appropriate to charge her with failure to leave licensed premises and obstruction of a police officer in the performance of duties.  Accordingly this is what was put in the QPRIME record.[35]
  3. [76]
    At the watchhouse the applicant was given an infringement notice for each of the offences.[36]  The applicant elected to appear in court instead and she received a summons to do so.  Because of this the second respondent was involved in preparing a Court Brief (QP9) and a Full Brief of Evidence.
  4. [77]
    The Court Brief contained a summary of the events on the evening in question.  For the obstruction charge the events were said to be:
    1. (i)
      initial pushing past police and walking towards the venue
    2. (ii)
      taking her hand out of the handcuffs
    3. (iii)
      refusal to put her arm behind her back and overt act of pulling her arm forward
    4. (iv)
      refusal to get into the police vehicle
  5. [78]
    At court the applicant was represented by a solicitor.  The second respondent was on the way to court to give evidence in the matter but received a call from the QPS prosecutor asking whether he was content to drop the charge of obstruction on the basis that the applicant would plead guilty.  The second respondent agreed to this in the belief that the applicant would plead guilty to failure to leave licensed premises, which was the offence she had been arrested for.  As it turned out this was also dropped, and the applicant pleaded guilty to a substituted charge of using obscene language in a public place.[37]  She was fined $80.
  6. [79]
    There is nothing ‘telling’ about what happened to the charges.  The evidence before me which I accept, is that it is quite usual for such plea bargaining to happen.

The steps of the alleged less favourable treatment

(a) approach

  1. [80]
    This is the allegation that when the officers first arrived at the club, on the information that they had, and from what they could observe, the obvious thing would have been for them to approach the man first rather than to approach the applicant first.  It is said that the decision by the officers to approach the applicant first was made on the basis of race.
  2. [81]
    I have described above why the officers went to the club.
  3. [82]
    On his arrival at the club,[38] the second respondent saw that there was a verbal altercation between a man and a woman, who was later identified as the applicant.  They were both yelling at each other.  They were at either end of the metal barrier outside the entrance to the club.  Security guards were standing close to the man and the manager of the club was standing close to the woman. 
  4. [83]
    The second respondent, with the third respondent behind, initially headed towards the man.  This was because in their experience, usually security guards would gravitate towards the troublemaker, and they were closer to the man than to the applicant.
  5. [84]
    But the security guards did not say the man had done anything wrong.  Instead, one of the security guards pointed to the applicant and yelled to the second respondent that ‘she has been asked to leave about 15 times’.  The manager of the club then said to the second respondent that the applicant had been asked to leave the club a number of times and had been forcibly removed from the club.[39] 
  6. [85]
    These events can be seen on the footage covering the entrance to the club.  Although there is no sound on that footage, it is possible to see both the security guard and the manager pointing to the applicant, and then the second respondent turning his head towards the manager as if listening to what he had to say and then having heard this, moving towards the applicant to deal with her.[40] 
  7. [86]
    It was upon this information that the second respondent decided to approach the applicant first rather than to approach the man first as he had originally intended.  From the information he was given and the way in which it was given, the second respondent believed her to be the ‘catalyst to everything happening’ and therefore the one to speak to, rather than the man.  The third respondent took the same view.
  8. [87]
    The applicant sees this rather differently.  As she sees it, the security guards pointed her out to the approaching police officers in order to punish her.[41]  I make no findings on this because it is irrelevant to this complaint which is about the actions of the police and not the actions of the security guards.
  9. [88]
    Although the applicant says that as the officers approached, the man at that time ‘was being restrained by security staff’ this is not entirely accurate.  It is correct to say that the man was under the control of two of the security guards and was further away from the entrance to the club than the applicant.  One security guard was blocking his way, and had his arms outstretched holding onto the door on one side and the pavement barrier on the other, and a second security guard was ready to intervene if necessary.  This would have made it difficult for the man to get closer to the applicant if he had tried to do so.
  10. [89]
    The applicant is probably referring to a point earlier in the argument between her and the man before the police officers arrived.  It can be seen from the earlier footage that the man had on several occasions moved towards the applicant but had been pushed back mainly by the first security guard, but also on one occasion by a second security guard who was close by.
  11. [90]
    It can also be seen on the footage that after the police officers arrived, the man seemed to cease arguing although the applicant did not do so and continued to point at the man and to yell at him.
  12. [91]
    In his written evidence, the second respondent explained why, on arrival at the club, he acted upon the information provided by the security guards.  He explained that they were authorised persons under the Liquor Act 1992 (Qld), they had a common goal with the police of maintaining a safe and lawful environment for persons to socialise, and his experience as a police officer doing this type of work had shown him ‘that sober security guards were one of the most reliable forms of intelligence and information for police officers when attending jobs in in the Fortitude Valley Safe Night Precinct’.[42]  I accept this explanation.
  13. [92]
    The applicant told me what the man said to her before the police officers arrived.[43]  That evidence explains the nature of the argument between them, which had definite racial overtones, and it explains why she was upset. 
  14. [93]
    The applicant believes, and her friend believes, that the approaching officers heard what the man said.[44]  But in fact this is not the case and neither officer heard what the man said.  This can be confirmed by watching and listening to the footage from their body worn cameras.  This was partly because of traffic noise, but also because they were some distance from the man, and there were a lot of people talking and shouting at the same time.[45]
  15. [94]
    In the circumstances it is not only understandable why the second respondent decided to approach the applicant rather than the man, but it would have been quite strange if he had not done so.  Since the security guard and the manager of the club had pointed her out as requiring the officers’ attention rather than the man, it was almost inevitable that he would approach her and not the man.
  16. [95]
    It was suggested to the second respondent that one option was for the second respondent to approach the applicant and the third respondent to approach the man.  However, I was told, and accept as a credible explanation, that there was no reason for this to happen because there was no need to approach the man at all in the first instance, on the information given to the officers.  Also, it would not be usual procedure for the two officers to separate in this way while matters were still volatile.

(b) arrest and restraint by using handcuffs

  1. [96]
    A number of things are said about this on the applicant’s behalf, which it is said show that the arrest and handcuffing was on the basis of race:
    1. (i)
      The second respondent had no reasonable suspicion that the applicant had committed the offence of failure to leave licensed premises – hence the arrest was unlawful.
    2. (ii)
      Although the second respondent claims that the applicant started to move towards the man and was heading towards the club and he claims that this is why she was arrested and handcuffed, this did not actually happen.
    3. (iii)
      The second respondent did not have information sufficient to decide that the arrest was reasonably necessary, hence it was unlawful.
    4. (iv)
      The second respondent did not have information sufficient to decide that the use of handcuffs was reasonably necessary, hence it was unlawful.  It was also contrary to the Operational Policy Manual.
    5. (v)
      The information the officers had was very limited, and prior to the arrest the second respondent did not make any real effort to speak to the applicant’s friend and work colleague and other persons.  It is suggested that if the officers had spoken to the security guards they would have ascertained that she may have had a good reason not to leave the club when asked (because she was trying to book an Uber in a safe environment).  If they had done that, the officers would not have arrested her.
  2. [97]
    I consider these things in the sections below.
  3. [98]
    Whether or not the arrest and use of handcuffs were unlawful is relied on as influencing the inferences to the drawn.  This is in the sense that if there was unlawfulness then the tribunal would be more likely to draw an inference that the treatment was on the basis of race.  This may be so.  If unlawful it would show that the officers went beyond their powers and the tribunal might expect an explanation for this if it were not to infer that it was on the basis of race.  Whether or not these things were unlawful would also be likely to affect the level of compensation, bearing in mind there is a claim for aggravated damages in which it is said on the applicant’s behalf that what happened constituted an abuse of power by the respondents.[46]
  4. [99]
    Before turning to these matters, I need to refer to the relevant powers of arrest available to a police officer in these circumstances and the power to use force, such as handcuffs.  The power to arrest relied on by the second respondent was under section 365 of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA), which reads:

365 Arrest without warrant

  1. (1)
    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 for 1 or more of the following reasons—
  1. (a)
    to prevent the continuation or repetition of an offence or the commission of another offence;
  1. (b)
    to make inquiries to establish the person’s identity;
  1. (c)
    to ensure the person’s appearance before a court;
  1. (d)
    to obtain or preserve evidence relating to the offence;
  1. (e)
    to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;
  1. (f)
    to prevent the fabrication of evidence;
  1. (g)
    to preserve the safety or welfare of any person, including the person arrested;
  1. (h)
    to prevent a person fleeing from a police officer or the location of an offence;
  1. (i)
    because the offence is an offence against section 790 or 791;
  1. (j)
    because the offence is an offence against the Domestic and Family Violence Protection Act 2012, section 177, 178 or 179;
  1. (k)
    because of the nature and seriousness of the offence;
  1. (l)
    because the offence is—
  1. (i)
    an offence against the Corrective Services Act 2006, section 135(4); or
  1. (ii)
    an offence to which the Corrective Services Act 2006, section 136 applies.

(2) and (3) omitted

  1. [100]
    As for the power to use force such as handcuffs, it is provided in section 615(1) of the PPRA that it is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.  An example is given in that subsection that ‘a police officer may use reasonable force to prevent a person evading arrest’.  By section 615(2) it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.

Did the second respondent have reasonable suspicion that the applicant had committed the offence of failure to leave licensed premises when required to do so?

  1. [101]
    Reasonable suspicion that an offence has been committed is a requirement in section 365(1) for an arrest under those powers to be lawful.  It is said on the applicant’s behalf that if the second respondent suspected that the applicant had failed to leave the premises when required to do so, there was no evidence to support this.[47] 
  2. [102]
    The context of this is that section 165 of the Liquor Act 1992 (Qld) enables an authorised person, such as a security guard or manager, in certain circumstances to require a person to leave licensed premises, and when so required the person must immediately leave the premises and it is an offence not to do so.  An authorised person can use necessary and reasonable force to remove a person who fails to leave when required to do so, and it is an offence for the person to resist this.
  3. [103]
    The power to require a person to leave the premises is only triggered in or one more circumstance set out in section 165(1).  The circumstances of relevance here, are where the person is unduly intoxicated, or is disorderly, or is creating a disturbance.  
  4. [104]
    From the submissions and from what was put to the second respondent in cross-examination, it can be understood that what is said here is that prior to arresting the applicant the second respondent was not told that any such circumstance existed.  It is not being said that in fact no such circumstance existed, just that the second respondent was not told of them. 
  5. [105]
    The second respondent’s evidence about this which I accept, is that since he had been told by a security guard and the manager of the club that the applicant had been asked to leave the premises on a number of occasions and that she had been forcibly removed from the premises, he was aware that she had committed the offence of failing to leave licensed premises when required to do so.  As for the circumstances which would trigger the power to require her to leave the premises, although he had not been told (at the time of the arrest) exactly what had happened inside the club, from the knowledge that the applicant had been forcibly removed from the club he concluded that one or more of the circumstances giving the power to require her to leave the premises must have existed.  From his own experience the most likely ones were being disorderly or creating a disturbance, but he was also aware of the circumstance of intoxication.  He said he worked on the basis that the security guards knew their own powers in the Liquor Act under which they could remove people. 
  6. [106]
    He says that in the heat of the moment he considered he had enough information to suspect that she had committed the offence of failing to leave licensed premises when required to do so. 
  7. [107]
    It is said on the applicant’s behalf however, that this is insufficient.  It is said that a police officer cannot have the necessary reasonable suspicion in the case of an offence for failing to leave licensed premises contrary to section 165(2) of the Liquor Act unless the officer knows as a matter of fact the circumstance which triggered the power to require a person to leave. 
  8. [108]
    I do not think this is correct because it was clearly reasonable for the second respondent to accept in the first instance the information provided by the security guard and manager and to rely on it.  The second respondent was aware therefore that the applicant had been required to leave the club on a number of occasions.  He also knew that she had been forcibly removed.  The only inference which could be drawn from that information in the first instance, was that she had refused to leave the club when required to do so.  This is because otherwise, the forcible removal would not have been required.  It was also the correct inference to draw from the information that one of the grounds must have existed lawfully to require the applicant to leave the club. 
  9. [109]
    In this respect, there is no doubt that the requisite suspicion can arise from information received from others.[48]  As Lyons J said in Ferguson v State of Queensland & Anor [2007] QSC 322:[49]

Whilst the suspicion must be that of the arresting officer it is clear that the standard is an objective one.  Misel v Teese [1942] VLR 69 at 72 held that reasonable cause would exist where suspicion was based on certain facts which if they actually existed were such as would lead an ordinary prudent and cautious person in the position of the policeman to the conclusion that the person arrested was probably guilty of the offence.

  1. [110]
    Therefore, the second respondent did have reasonable suspicion that the applicant had committed the offence of failing to leave licensed premises when required to do so.  The arrest was not unlawful on that basis.

Did the second respondent have information sufficient to decide that the arrest was reasonably necessary, and was it unlawful on this basis?

  1. [111]
    This cannot be answered without a consideration of the law.  Firstly, the meaning of the expression ‘reasonably necessary’ as used in section 365(1).  This seems to be settled.  The words are used in many other places in the PPRA, and in many other legislative provisions.  The expression should be read as a whole rather than as separate words.[50]  The expression does not mean objectively essential or objectively actually necessary.[51]  Put simply it means something more than convenient but does not mean essential or indispensable.[52]
  2. [112]
    Of relevance to this complaint, in the context of section 365(1), the mere fact of other options (other than arrest without warrant) being available does not mean the arrest was not reasonably necessary for one or more of the reasons in (a) to (l).[53]
  3. [113]
    However, one question which arises is whether for the arrest to be lawful, the arresting officer must have formed a view at the time of the arrest that one or more of the reasons (a) to (l) applied.  Another question is whether, for the arrest to be lawful, the existence of one or more of the reasons (a) to (l) should be tested against what the officer knew or reasonably believed at the time, or whether it should be tested on facts which existed at the time but were unknown to the officer.
  4. [114]
    In Couchy v Birchley [2005] QDC 334,[54] McGill SC DCJ referred to these uncertainties pointing out that the then case law described the test in different ways without demonstrating an intention to decide the correct approach.[55] 
  5. [115]
    Although Judge McGill said in Couchy that he suspected there had been a drafting error in section 365, this does not appear to be the case because section 365 had been before the legislature many times, having been renumbered twice,[56] and amended several times in a minor way.[57]  More importantly, in 2016 section 365A was added (arrest without warrant upon instruction of another police officer) which repeated the ‘reasonably necessary for 1 or more of the reasons’ test in section 365, showing that there was no drafting error.
  6. [116]
    Since Couchy, in Courtney v Thomson [2007] QCA 49 it was said that at least some evidence is required as to whether the arrest was reasonably necessary.[58]  in Eaves v Donelly & Anor [2011] QDC 207, Samios DCJ seemed to require both a belief of the need to arrest and for this belief to be reasonable at the time.[59]  A similar approach might have been taken by Judge McGill in Frost v Commissioner of Police [2014] QDC 294.[60] 
  7. [117]
    But in R v Elliott [2020] QDC 243 Cash QC DCJ said that the officer’s state of mind at the time of the arrest was irrelevant for the ‘reasonably necessary’ test which needs to be determined objectively.[61] 
  8. [118]
    I have to conclude that, on the Queensland authorities, it is unclear whether, for the arrest to be lawful under section 365, the arresting officer must have formed a view at the time of the arrest that one or more of the reasons (a) to (l) applied.  It is also unclear whether, for the arrest to be lawful, the existence of one or more of the reasons (a) to (l) should be tested against what the officer knew or reasonably believed at the time, or whether it should be tested on facts which existed at the time but were unknown to the officer.
  9. [119]
    It is illustrative to discuss the law about arrest without warrant in New South Wales.  For an arrest without warrant to be lawful in NSW, the arresting officer (having formed the necessary reasonable suspicion that the person has committed an offence) must be satisfied that the arrest is reasonably necessary for one or more of the reasons in the statute.[62]  This wording therefore differs from the Queensland law.
  10. [120]
    On that basis NSW law requires the police officer to make an evaluative judgment about whether to arrest or not, comparing the reasonably foreseeable consequences or continued freedom, with the obvious consequences of arrest.  If this is not done, there is no power to arrest without warrant.[63]
  11. [121]
    Having considered the law which might apply I now turn to my findings of fact relevant to this step.

Findings of fact (arrest)

  1. [122]
    I find that at the time of the arrest the second respondent had:
    1. (a)
      considered whether the arrest was reasonably necessary;
    2. (b)
      decided that it was reasonably necessary to arrest the applicant because while he was trying to talk to her and was holding her left arm, she made a definite movement towards the man and towards the entrance to the club;
    3. (c)
      decided that the arrest was necessary to prevent the continuation or repetition of an offence or the commission of another offence, and because the applicant was obstructing him in the performance of his duties.[64]
  2. [123]
    It might be said that it was impossible to consider this and make these decisions given the short time between arrival and arrest, but on my findings, having seen and heard the second respondent give evidence, he was sufficiently experienced and quick witted to do so.
  3. [124]
    The applicant refers me to recommendation 86(a) of the Royal Commission into Aboriginal Deaths in Custody, final report 15 April 1991.  This recommended that the use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge.  I am satisfied that the second respondent did not arrest the applicant because prior to her arrest she had called him and the police generally, ‘cunts’.  However, the second respondent did form the view from the applicant’s use of this word that she was antagonistic towards the police and therefore might be violent towards him.
  4. [125]
    What was the offence which the second respondent wished to prevent by arresting the applicant?  I accept the explanation given by the second respondent in cross examination that his concern was that she was going to take more steps towards the man and the entrance to the club.  He considered she was continuing to commit the offence of failure to leave the club, a matter which I consider below.[65]  He considered that she needed to be prevented from repeating this by returning to the club when she had been told to leave, and he needed to prevent her from committing an offence towards the man because the movement was an ‘overt act towards the male’.  The movement she made was also obstructing him in the performance of his duties.[66]
  5. [126]
    By reference to the evidence given by the second respondent, submissions were made on the applicant’s behalf that it would be wrong to make the above findings.  Reliance was placed on this paragraph in his witness statement:

[33] Given the limited information I had received from security, I reasonably suspected (the applicant) was socialising within the licence venue and was evicted.  I also suspected that when evicted (the applicant) did not immediately leave the licence venue as required under the Liquor Act.  As a result, I placed (the applicant) under arrest for failing to leave a licence venue.

  1. [127]
    It was put to the second respondent that this paragraph contained the sole reason for the applicant’s arrest, showing that he had not considered whether the arrest was ‘reasonably necessary’.  However, the second respondent explained that in this paragraph he was simply stating the offence for which she was arrested. 
  2. [128]
    A closer study of all his written evidence shows that this explanation is correct.  These other paragraphs appear in his witness statement:

[32] (The applicant) started to move towards the male and heading closer to the venue.

[34] Due to (the applicant’s) behaviour, her intoxication level, failure to follow simple instructions/unpredictable and being an unknown risk to members of the public and officers, I placed (the applicant) in handcuffs.

  1. [129]
    As can be seen from the footage, the placing of the applicant in handcuffs and the second respondent informing her that she was under arrest happened almost simultaneously.  This means that the second respondent’s belief why it was necessary to place the applicant in handcuffs (as explained in paragraph 34 of his statement) was also his belief at the time of the arrest itself.
  2. [130]
    In addition to this, in this particular case it is difficult and possibly legally wrong to separate the act of handcuffing the applicant and the act of arresting her.  This is because an arrest occurs when it is made plain to the applicant by what was said and done by the police officer that she was no longer a free person.[67]  The act of handcuffing and being moved away from the club’s door would have been an arrest even if the second respondent had remained silent.  As it was, he was obliged to inform her as soon as reasonably practicable that she was under arrest and of the nature of the offence for which she was arrested.[68] 
  3. [131]
    The paragraphs above, that is [32] to [34], are not a recent creation.  They appeared with the same wording in the second respondent’s statement of 7 June 2019 which was prepared for the magistrates’ court hearing which did not take place, and therefore prior to any complaint to the QHRC.
  4. [132]
    More recently, but prior to any suggestion that the arrest was unlawful,[69] the second respondent also had this paragraph in his witness statement:[70]

[100] This information straight away gave me reasonable suspicion that (the applicant) had committed the offence of Failing to Leave a licensed venue, meaning I could lawfully arrest her immediately if I deemed necessary.

emphasis added

  1. [133]
    This demonstrates that the second respondent understood that he could only arrest if it were necessary to do so.
  2. [134]
    The second respondent’s evidence about this tends to be confirmed by what he said to the applicant’s friend and work colleague on the evening in question, once the applicant was in the police van.  He can be heard on the bodycam footage explaining that the applicant had ‘walked towards the entrance again’, which was a brief description of what he told me in the hearing nearly four years’ later.
  3. [135]
    There are two different entries in the QPRIME system however, on which the incident is recorded, which put the reason for the arrest in different ways.  It is said on the applicant’s behalf that this discrepancy means that I should not accept the second respondent’s evidence on this question. 
  4. [136]
    The first entry, done on the evening in question, states that the reason for the arrest was her ‘unpredictable, agitated behaviour’.  The first record claims that prior to her arrest the police requested the applicant to move away from the club, but ‘that she ignored this and continued acting aggressive towards the male’.  In fact, it was an error to say that she was requested to move away from the club because we know from the bodycam footage that this did not happen.
  5. [137]
    The second, done two days later after the second respondent had observed the footage from the club, states:

Police approached the defendant and attempted to calm her down, however she ignored police pushed passed and walked towards the entrance to the venue again.  As a result police arrested her for failing to leave a licence premises.

  1. [138]
    It may be true as submitted on the applicant’s behalf that both entries are authored by the second respondent but are inconsistent when examined for an analysis of the reason for the arrest.  But the main difficulty with my treating this as a discrepancy which would lead me to disbelieve the second respondent is that he was not asked about this in cross examination.  There might be a simple explanation for the differences.
  2. [139]
    One reason why I think that the second respondent did turn his mind to the question whether it was reasonably necessary to arrest the applicant, and concluded that it was, is that I accept that he would have much preferred to have dealt with the applicant informally that evening without arresting her.  His intention was not to arrest her unless it was necessary to do so.  I consider this below under ‘(d) failure to abate and removal’.

Objective justification on what was known (arrest)

  1. [140]
    I turn to the question whether the second respondent was objectively justified to decide that the arrest was reasonably necessary for the reasons in his mind at the time.  This may be the correct test to apply for the ‘reasonably necessary’ test to be satisfied.
  2. [141]
    Part of the second respondent’s reasoning was that since the applicant had not moved away from the entrance to club having been required to leave the licensed premises, she continued to commit the offence of failure to leave the licensed premises.[71]
  3. [142]
    In the hearing it was questioned on the applicant’s behalf whether it was correct to say that the offence continued in those circumstances.  There was evidence that it was generally assumed by venue staff and by police that when required to leave licensed premises, a person should not only leave the venue but also then move away from the entrance.  This it was said, was because the area in front of the venue was part of the premises as shown by the fact that there was usually a barrier on the pavement outside the premises. 
  4. [143]
    None of the witnesses knew why the area in front of the venue could be considered as part of the premises.  The general belief was that it was a licensing issue, but in fact nothing to that effect appears on the licence.[72]  Counsel for the applicant told me that he had researched the issue and found no answer to this.  The matter was not addressed fully by counsel.
  5. [144]
    I note that in section 142ZZB of the Liquor Act 1992 (Qld) there are various obligations of a licensee of licensed premises in the conduct of the business in the premises (which would be fulfilled by the security guards and manager of the club acting on the licensee’s behalf) with respect to the area outside the premises.  It is an offence not to fulfill these obligations. 
  6. [145]
    Of relevance here, the licensee must take all reasonable steps to ensure a safe environment and that the amenity of the area is maintained and not adversely effected by the behaviour of persons entering or leaving the premises.  Reasonable steps must be taken to stop or prevent an offence being committed in or around the premises, which could have an adverse impact on the health and safety of a person or on the amenity of the area.
  7. [146]
    In certain circumstances, this section would give the venue staff an obligation when necessary to do so, and a right, to require a person not only to leave the premises but to move away from the entrance, once outside.  And it is known that an occupier of a building must also maintain a means of escape from the building without obstruction in the case of a fire.[73]
  8. [147]
    These Liquor Act powers were exercised here.  Once the applicant was outside, one of the security guards and the manager instructed her to move away from the entrance to the club.[74]  She did go a little further away but then she came back.[75]  She was berating the security guards who had removed her, and the manager.[76]  This was before the officers arrived on the scene.
  9. [148]
    However, it seems to me, considering the context of section 165 of the Liquor Act which contains the offence of failing immediately to leave premises when required to do so, that the word ‘premises’ in that section must mean the physical boundary of the licensed premises, and this would not include the area outside the club because they are not part of the licensed premises.  Therefore, I disagree with the second respondent that a person continues to commit the offence of failing to leave the licensed premises when required to do so if they fail to move away from the entrance to the club.  It was more, as he also said, that the person might try to re-enter the premises, which would be a repeat of the offence.
  10. [149]
    The remainder of the second respondent’s reasoning, however, cannot be impugned. 
  11. [150]
    Having regard to the meaning of ‘reasonably necessary’ and in all the circumstances, in particular having regard to the applicant’s movement towards the man and towards the entrance to the club, I am of the view that on the information that the second respondent had at the time, and from his observations, the arrest was reasonably necessary to prevent an offence being committed either to the man, or by the applicant re-entering the club.
  12. [151]
    On the question whether the arrest was reasonably necessary because the applicant was obstructing the second respondent in the performance of his duties, the fact is that what was later stated in the Court Brief, that the applicant ‘pushed past the second respondent and started to walk towards the club’ did in fact happen, despite his holding her left arm.  This was an offence under section 790 of the PPRA (obstructing a police officer in the performance of duties).[77]
  13. [152]
    The reasonably necessary test needs to be applied having regard to the nature of the area, and the time when the events occurred.  As the second respondent explained in cross-examination, most of the people he has to deal with in the Safe Night Precinct are on drugs or intoxicated, and that in his experience especially when the police are on the scene things can easily escalate.  It is an extremely volatile situation.  People do things they probably would not do if not intoxicated.  He had made several arrests in this type of situation, and more quickly. 
  14. [153]
    The non-violence of the applicant is relied on in submissions on the applicant’s behalf as showing that she should not have been arrested[78] or put in handcuffs.[79]  It is true that at the time of the arrest the second respondent was not aware that she had been violent in the club, but he suspected that she had been and he also suspected that she could become violent.  I think that suspicion was reasonable on what the second respondent had been told and from the state that the applicant was in at the time.  He was justified in thinking that she might be antagonistic and aggressive towards him having regard to what she said about police.
  15. [154]
    There were options available to the second respondent other than arrest.  The station senior sergeant who gave evidence said that in the same circumstances he would not have arrested the applicant.  He explained that this was because he has ‘a different style of operating to other police’.  He would have tried to calm the applicant down a little bit and find out more information. 
  16. [155]
    It is said on the applicant’s behalf that taking the approach of the station senior sergeant would have been more likely to de-escalate the situation.  The difficulty is that it is impossible to say what would have happened.  It may have de-escalated the situation or it may have made things worse by enabling the applicant to behave more badly.
  17. [156]
    The second respondent’s aim was to reduce the risk to himself, others and to the applicant herself and to be able to move her away from the man and from the entrance to the club to de-escalate the situation.  The evidence of the station senior sergeant needs to be understood in the context that he also thought that what actually happened was one justifiable way to deal with the matter.[80]
  18. [157]
    As stated in Sanchez & Sanchez v Commissioner of Police [2021] QDC 076, the existence of other options does not mean that the arrest is not reasonably necessary.
  19. [158]
    For these reasons the arrest was not unlawful if the correct test to apply is objective justification on what was known to the arresting officer at the time.

Objective justification on facts not actually known (arrest) 

  1. [159]
    If it is right that the reasonably justified test should be applied totally objectively and not dependent on any belief of the arresting officer, then on my findings other paragraphs (a) to (l) apply, making it reasonably necessary to arrest the applicant at that time for reasons in addition to the arresting officer’s reasons.  That is, to prevent the continuation of the offences of public nuisance and being intoxicated in a public place,[81] to preserve the safety or welfare of any person, including the person arrested,[82] or to prevent a person fleeing from a police officer or the location of an offence.[83]
  2. [160]
    We know that after her arrest and despite being in handcuffs and restrained by two police officers, the applicant managed to make two steps towards the man.  This demonstrates that if the applicant had not been restrained, she would have been very likely to take more steps towards the man; it shows that the second respondent’s instinct about this just prior to arresting her had been correct.
  3. [161]
    To this would be added the applicant’s heavy intoxication that evening as I have found above in the section ‘other factual matters – level of intoxication’, and her behaviour inside the club where she had been disorderly, had created a disturbance, and had tried to strike one of the security guards as I have found above under ‘other factual matters – disorderly behaviour in the club’.
  4. [162]
    For these reasons the arrest was not unlawful if the correct test to apply is a purely objective one, because it was reasonably necessary to prevent further offences being committed.

Restraint by using handcuffs

  1. [163]
    As I understand the applicant’s case it is the use of the handcuffs which is objected to rather than any other restraint applied to the applicant that evening.  It is not for example, suggested that the second respondent should not have held the applicant by the left arm after arriving on the scene.  If that had been suggested, then this would have required an examination of police powers to prevent a breach of the peace, or general powers to take steps to prevent the commission, continuation, or repetition of an offence.[84]
  2. [164]
    With respect to the use of handcuffs, I was provided with the version of Chapter 14 of the Operational Procedures Manual which applied at the time, that is dated 9 August 2018.[85]  This has since been amended quite extensively and it is an updated version which appears in the final written submissions of counsel for the applicant.  Although the later amendments are of interest, the earlier version applied at the time of the events in question.
  3. [165]
    Section 14.3 of the OPM (use of force) requires officers only to use the minimum amount of force which is necessary to resolve an incident safely.  The use of handcuffs is a use of force.
  4. [166]
    Section 14.3.1 of the OPM states a policy that while attending an incident, officers should conduct continual threat assessments to make sound decisions about the management of an incident and application of appropriate situational use of force.  The safety of the general public, police and any individual subject to the use of force situation should be considered during the decision-making process.  Physical force should only be used as an operational necessity when other options have failed or have been assessed as being inappropriate for the circumstances.
  5. [167]
    Section 14.19.1 of the OPM states that a person exhibiting or threatening violence, or demonstrating intent to escape lawful custody, is to be handcuffed because they are high risk.  In all other situations, officers are presented with an unknown risk.
  6. [168]
    The second respondent’s explanation why he placed the applicant in handcuffs in his witness statement was.

[32] (The applicant) started to move towards the male and heading closer to the venue.

[34] Due to (the applicant’s) behaviour, her intoxication level, failure to follow simple instructions/unpredictable and being an unknown risk to members of the public and officers, I placed (the applicant) in handcuffs.

  1. [169]
    Under cross examination the second respondent explained this further.  He said he put the applicant in handcuffs for several reasons. 
  2. [170]
    Although he agreed that the applicant was not threatening violence at the time of her arrest, he was aware from the fact that she had been asked to leave the club on 15 occasions and had been forcibly removed from it, that things had ‘transpired inside’, and that would normally mean that the person concerned had been violent.  It was usually either violence or a flat refusal to leave.  She was engaged in a verbal argument with someone else and was in an agitated state, and it was likely that she was intoxicated.  This meant that she was unpredictable.  He was aware from his own experience that people can become violent in a split second when they are intoxicated, and when people are not following instructions.  This means that things can happen extremely fast.  The instructions he was referring to here were his oral instructions to the applicant to calm down and stop shouting, and his indication to her (by holding her by the left arm) that she must not go closer to the entrance to the club.  As stated above, despite this, she did push past the second respondent and go closer to the man and the entrance to the club. 
  3. [171]
    A second reason was that the applicant was being aggressive.  Within seconds of his arrival, she called him and the police generally, ‘cunts’, which meant that she was antagonistic towards him, and potentially could be violent towards him.  The second respondent said that it was not unusual for police officers to be assaulted within seconds of conducting an arrest in the Safe Night Precinct, so there was a risk of injury to him.  And it was not uncommon for people to try to escape during arrest.
  4. [172]
    A third reason was that the Safe Night Precinct is inherently dangerous.  The number of people around who are intoxicated justified the use of handcuffs.  He was aware of her friends nearby and that random members of the public can get involved with such incidents.  Using the handcuffs meant that he had his hands available to deal with other people intervening.  This was also safer for the applicant.
  5. [173]
    The second respondent said that his experience told him that using handcuffs was the minimum use of force in such circumstances.
  6. [174]
    I accept the evidence of the second respondent as set out above.  Accordingly, I find that the use of handcuffs was not a breach of the Operations Procedures Manual.
  7. [175]
    On the question whether the use of handcuffs was lawful, what ‘reasonably necessary’ means in section 615 of the PPRA has been discussed above.  Put simply it means something more than convenient but does not mean essential or indispensable.[86]  In the circumstances of this case, I am of the clear view that the use of handcuffs was lawful. 

Prior to the arrest should the second respondent have spoken to the applicant’s friend and work colleague and other persons?

  1. [176]
    It is suggested on the applicant’s behalf that prior to arresting the applicant the second respondent should have made further enquiries of those accompanying the applicant and the security guards.[87] 
  2. [177]
    Reliance is placed on the Operational Procedures Manual section 2.5.1 (commencement and conduct of investigations),[88] but it is difficult for the applicant to rely on this because this was not put in evidence, so it is difficult to understand its context, and it was not put to the witnesses either. 
  3. [178]
    The applicant says that the police officers ‘at the outset’ were aware that the argument between the applicant and the man had racial overtones.  The implication of this is that this knowledge would have been another reason why the officers should have spoken to the man before arresting her. 
  4. [179]
    The problem with this is that, on my findings, the police officers were not aware prior to the applicant’s arrest that the argument between the applicant and the man had racial overtones.  As stated earlier in these reasons,[89] the officers could not hear the man’s words used in the argument, and prior to the arrest nothing that the applicant said to them would have alerted them to any racial content in the argument with the man.  She simply complained that the man had sworn at her. 
  5. [180]
    It is submitted on the applicant’s behalf that had the officers made enquiries of the security staff prior to the arrest, then they would have discovered that she had a valid reason for not leaving the club immediately when requested to do so, because she was trying to book an Uber.  The implication is that the officers would then have been more lenient towards the applicant.
  6. [181]
    In fact, I think the opposite would have been the case. 
  7. [182]
    For one thing, the officers would have become aware that the female security guard offered to go with the applicant outside and stay with her pending the arrival of the Uber, and it was on that basis that the reason she originally gave to stay in the club (that she sought time to arrange a shared Uber booking before she left the relative safety of the inside of the club),[90] had been rejected by the security guards.  Although the applicant denies that this offer was made, the manager of the club heard it being made, and I prefer the female security guard’s recollection of this – she had a remarkably good memory of events that evening, she mentioned this to the second respondent when the applicant was in the police van, it is noted in her report of events completed that evening,[91] and as I have found elsewhere the applicant was heavily intoxicated at the time.
  8. [183]
    Secondly, any such enquiries would have revealed that once her reason to stay in the club (to book an Uber) was rejected, her stated reason for refusing to leave the club was because she could not be forced to leave because the land on which the club was situate was owned by her and her tribe, and not by the club.[92]
  9. [184]
    Finally, any such enquiries would also have informed the second respondent that the applicant had been disorderly, had created a disturbance, and had tried to strike one of the security guards in the club as found above in the section ‘other factual matters – disorderly behaviour in the club’.
  10. [185]
    Ultimately therefore, conducting such an enquiry would have made no difference to the decisions made by the second respondent.
  11. [186]
    The main issue here however is whether it was practicable to make such enquiries.  I agree with the second respondent that it was not.  This can be seen from the bodycam footage.  The applicant was shouting over everybody and needed to be restrained, giving no chance for any enquiries to be made prior to her arrest. 

Conclusion as to whether the arrest and restraint by using handcuffs was unreasonable and unwarranted

  1. [187]
    I have already decided that the arrest and handcuffing was lawful.  I now consider whether they were reasonable or unwarranted.
  2. [188]
    Having regard to the circumstances set out above on my findings, clearly it was open to the second and third respondents to try to deal with the applicant a different way, by for example restraining her but not arresting her and not handcuffing her. 
  3. [189]
    From my study of the footage, if that option had been taken then it would have meant that the two officers would have needed to block her way when she made the first distinct movement towards the man.  This could well have exacerbated the situation because having regard to the applicant’s unpredictable behaviour that evening and her objection to being handcuffed (as appears on the footage) I do not think she would have taken kindly to having her way blocked.  And we know that even when handcuffed and restrained by both officers the applicant managed to take a second distinct movement towards the when she took two steps towards him.  If she had not been handcuffed, the situation could well have escalated badly.
  4. [190]
    In my view, the decisions made by the officers to arrest her and restrain her by using handcuffs was not unreasonable or unwarranted.

(c) choice of investigation

  1. [191]
    It is said that the police officers failed to investigate the man either upon the applicant’s or her friends’ complaints, or upon it being apparent that the man was the aggressor.
  2. [192]
    The difficulty with this is that to speak to the man, one of the police officers would have had to go over to speak to him.  This would have left only one officer to deal with the applicant.  Prior to her being handcuffed and moved away from the entrance to the club this would not have been sensible because as said earlier, she was out of control and there would have been nothing to stop her from becoming violent. 
  3. [193]
    After her arrest the two officers moved the applicant away from the entrance to the club.  It is suggested that after the applicant was in handcuffs and moved away from the entrance to the club in this way, then one of the two officers should have then gone over to speak to the man.  There are several things relevant to this suggestion.  One is whether it was sensible even after the applicant was in handcuffs for only one officer to remain with her.  The fact is, as can be seen from the bodycam footage, the applicant did not calm down at all – in fact she became even more frenzied at this time.  The third respondent told me, and I accept, that he and the second respondent ‘had their hands full’ with her and there was no opportunity at that time to go over and speak to the man, even if it had been necessary to do so.  The second respondent explained that they had a very agitated and antagonistic person to deal with and there were a number of people standing around, so his priority and focus was on officer safety until backup police arrived.  And even after she was placed in handcuffs and under arrest, as found above, she had made a second distinct movement towards the man and both officers had been needed to stop her further progress.
  4. [194]
    Also relevant to this suggestion is whether the officers knew anything at the time which would have alerted them to speak to the man.  The applicant had only said to the officers that the man had sworn at her.  As the second respondent explained in his evidence, you cannot arrest everyone who swears in the street – you would end up with thousands of people in the watchhouse, so there was no reason to speak to him on that basis.  And since the applicant was using obscene language to the officer, he thought that she was not too concerned about the man’s language. 
  5. [195]
    The first time the officers were aware that the man had said anything to the applicant with racial connotations was after the applicant was in the police van when the applicant’s work colleague informed them about this.  This was many minutes later.
  6. [196]
    The man left the scene about one minute after the applicant was moved away from the entrance by the officers and so by the time the applicant was put in the police van he had been absent from the scene for many minutes.
  7. [197]
    The man’s departure from the scene can be seen on the footage.  When the officers were trying to speak to the applicant after her arrest, the man can be seen turning away as if to go away,[93] but then he turns back and seemingly talks to the security guard who was still blocking his way.  Soon after he can be seen making shadow boxing motions,[94] and but a minute later having shaken the hand of the security guard he walks away and does not come back.[95]
  8. [198]
    It is said on the applicant’s behalf that the shadow boxing motions should have alerted the second and third respondents to the need to ‘investigate’ the man [less favourable treatment (a)].  The second respondent says however, that he did not see the shadow boxing actions at all, and I accept this.  This is because, by that time he was some distance away from the man and was trying to speak to the applicant.[96]  The third respondent did not see the man shadow boxing either.
  9. [199]
    It is also said on the applicant’s behalf that the officers ignored what the applicant was alleging, that the man had sworn at her.  For example it was not noted in the QPRIME report.  And this shows that she was treated less favourably than the man.[97]  But this is not the case because at the time when man was there, there was nothing to alert the officers to the need to speak to the man.
  10. [200]
    After things had settled down the second respondent tried to enquire about the identity of the man.  He asked one of the security guards about him but could not get a description.  The man had not been inside the club, he was only known as to be Caucasian in appearance and wearing a white shirt.

(d) failure to abate and removal

  1. [201]
    It is said that the officers failed to take any steps to de-escalate the situation or to discontinue the arrest, and that it was unnecessary to have the applicant transported to the watchhouse.
  2. [202]
    It is true that a police officer can discontinue an arrest.  Indeed there is a duty to do so at the earliest reasonable opportunity if (of relevance here) the officer reasonably considers that it is more appropriate that the person to be dealt with other than by being charged with an offence, or the reason for arresting the person no longer exists or is unlikely to happen again if the person is released and it is more appropriate for the person to be taken before a court by notice to appear.[98]
  3. [203]
    Here the second respondent as the arresting officer, told me that he did consider discontinuing the arrest and would have preferred this, but was unable to do so because of the applicant’s behaviour.  He said that there are a number of options in such circumstances.  If a person is completely co-operative, has calmed down and talks to him, and allows him to complete his tasks effectively such as completing the necessary paperwork and issuing a move on direction, then there is no reason to continue the arrest and he would be able to discontinue it.  Another situation was where there was new information which showed that there was a defence to the proposed charge, or that previous information was inaccurate.  Then the arrest could be discontinued for that reason.
  4. [204]
    The way the second respondent put it was that his goal that evening was to send the applicant away with her friends in a car and into bed, and that in those circumstances the most she would have got would be a fine and a move on direction.
  5. [205]
    This has the ring of truth about it in a busy policing environment, bearing in mind as far as the second respondent knew at the time of the arrest, the offence she had committed of failing to leave the licensed premises was not a serious one.   It also fully accords with what the second respondent said at the time to the third respondent and to the applicant’s friend and work colleague once the applicant was in the police van, as can be heard on the bodycam footage.  He said:

So she’ll go up to the watch house, she’ll go up there to sober up and she’ll get a ticket.  She’ll get a fine.  This is how silly it is.  It didn’t need to be this way.

  1. [206]
    It also fully accords with the timing of the second respondent’s call by radio for the police van to be sent over.  As can be heard on the bodycam footage, more than three minutes passed by after the approach before he made this call and the second respondent uttered something just before the call showing his exasperation at having to do this instead of releasing the applicant.
  2. [207]
    The second respondent told me that he was unable to release the applicant because of her behaviour and he had no choice but to call for the van and send the applicant to the watchhouse.
  3. [208]
    I accept all the evidence about this given by the second and third respondents. 
  4. [209]
    The second respondent was aware (because he had witnessed this himself) that the applicant’s friend and her work colleague had tried to calm the applicant down by holding her and speaking to her in her ear, but they had been completely ineffective in these attempts.  It was clear to the second respondent, and it is clear to me, that they would not have been able to cope with the applicant on their own.
  5. [210]
    The difficulty was that the applicant was heavily intoxicated that evening, and she was highly likely to antagonise someone and get hurt if she had been allowed to go home in that state.
  6. [211]
    There was no scope even after the applicant had been put in the police van to change the decision that the applicant needed to go to the watchhouse to sober up.

Other matters affecting drawing an inference

Decision to speed process the applicant was not justified

  1. [212]
    This is not relied on as less favourable treatment but is relied on as leading the tribunal to draw an inference that the treatment was on the basis of race.[99]  Where a person is speed processed, the paperwork is done in the street and the person is taken in the police van to the watchhouse.  The arresting officer can then remain operational in the street.  It is a process used in the Safe Night Precinct to optimise the police resources.
  2. [213]
    What is really being said here is that the applicant should not have been sent to the watchhouse but should have been released.  I have dealt with this under less favourable treatment ‘(d) failure to abate and removal’, above.

Failure to adhere to the situational use of force model and failure adequately to communicate with the applicant

  1. [214]
    This is not relied on as less favourable treatment but is relied on as leading the tribunal to draw an inference that the treatment was on the basis of race.[100] 
  2. [215]
    The situational use of force model is referred to in the Operational Policy Manual in section 14.3.2.  As explained there, it is simply a guide to assist police officer when dealing with incidents requiring the use of force.  It describes the various options available in diagrammatic form.  It does emphasise the need to use the minimum amount of force necessary to resolve an incident safely.  Since this is in the OPM anyway, it has already been considered.
  3. [216]
    The passage in the manual relied on by the applicant in counsel’s final submissions seems to come from a later version of the manual than the one which applied at the time.
  4. [217]
    As for an alleged failure adequately to communicate with the applicant, I do not think this assists one way or the other.  It could be suggested that had the second and third respondents dealt with the situation in a different way then this might have de-escalated the situation so that the applicant could be communicated with.  But this is speculation.  It might have made matters worse.

Offence of failure to leave licensed premises not proceeded with and evidence of obstruction charge was weak.

  1. [218]
    This is not relied on as less favourable treatment but is relied on as leading the tribunal to draw an inference that the treatment was on the basis of race,[101] and showing the second respondent’s ‘intolerance’ of the applicant.[102]
  2. [219]
    It is incorrect to say that the offence of failure to leave licensed premises was not proceeded with.  I deal with this in ‘other factual matters - court outcome’, above.
  3. [220]
    I do not agree that the evidence in the obstruction charge was weak.  Of the four matters set out in ‘court outcome’ above, (i) and (iv) can easily be seen on the footage, and (ii) and (iii) would depend on the evidence of the second respondent supported by the footage.  There is no reason why the second respondent would be disbelieved.  In any case this point is difficult for the applicant to rely on because it was not put to the witnesses.

Alleged collusion and dishonesty

  1. [221]
    It is said on the applicant’s behalf that the third respondent’s evidence was that he discussed the QHRC complaint with the second respondent on numerous occasions and it was ‘most unprofessional’ for this to have happened.[103]  Differences in the evidence given by the two officers about the nature of these discussions are highlighted.  I agree that the second respondent when giving evidence seemed more reticent when first asked to tell me about the nature and extent of discussions between the two officers than the third respondent was.  Ultimately however, there was not a substantial difference between them.  It is difficult to sustain the suggestion that any discussions between them were most unprofessional when, as the second respondent told me in evidence, he had to attend the solicitors’ together with the third respondent to provide information about the case and that he attended mediations where the third respondent was also in attendance.  Since they were both parties to the complaint, their status in the proceedings was not the same as mere witnesses.
  2. [222]
    There was an issue of more importance which arose.  The third respondent’s evidence was interrupted overnight and having been told by the tribunal that he must not speak to anyone about the case, it is said on the applicant’s behalf that he ‘totally ignored’ this instruction.  It is said that in his evidence he first denied having spoken to anyone about the case, but then admitted that he had done so when he was informed that he had been overheard in the vicinity of the tribunal hearing room speaking to someone on the telephone.
  3. [223]
    In this respect the third respondent told me that between the first and second sessions of his evidence he did some research about the boundaries of licensed premises, which he had been asked about under cross examination but was not prepared for.  As part of this he spoke to an officer on the telephone for guidance about this.  He viewed the footage again between the first and second sessions of his evidence.
  4. [224]
    Doing research on one’s own would not have been a breach of the tribunal’s instructions.  I note that when asked about the boundaries of licensed premises in the first session of his evidence, the third respondent said he did not know which law applied to the matter and he would have to research it.
  5. [225]
    As for carrying out research by speaking to another person, it was said by the English Court of Appeal in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1, [23].

The purpose of the warning is to protect the witness from any attempt by a third party to influence their evidence and also to ensure that, so far as possible, the evidence which the witness gives is his or her own best recollection unassisted by any other person. Compliance with the warning both protects the witness and the effectiveness of the trial process.

  1. [226]
    It is likely the third respondent understood the importance of the instruction, and if he did not, then as a police officer he should have done.  It was very unwise and possibly a failure to comply with the tribunal’s instruction to speak to another officer about it. 
  2. [227]
    As for first denying that he had spoken to anyone about the case, it is true that the third respondent did deny this and later admit it.  It seems possible that the initial denial might be explained by the fact that the third respondent was of the belief that seeking guidance from another officer as research was not contrary to the instruction.  This seems to be demonstrated by the fact that he openly spoke on the telephone to the other officer in the vicinity of the hearing room and could be overheard doing so.
  3. [228]
    The fact that the third respondent took the risk of making this call, and the way this evidence emerged, concerns me and I have taken it into account when deciding whether to draw an inference.
  4. [229]
    Ultimately however, these concerning events could only affect the outcome of this complaint if it were more finely balanced.  This is because none of the decisions of the third respondent are in fact challenged in this case, other than the fact that he supported the second respondent and thought that all the second respondent’s decisions were the correct ones.  And his evidence was not changed by any contact he had with others, and so there was no need to consider excluding it.  This is because he was not asked to improve on the answers he had given the day before. 

The second respondent’s possible loss of control

  1. [230]
    Before reaching a conclusion on the question of inference it is necessary to consider those things which might go the other way, that is to show why it might be wrong to draw an inference that the applicant’s treatment was on the basis of race.  One is the fact that after the applicant was in the police van, the second respondent carefully checked the information he had received to ensure that the charges were supported by evidence.  On speaking to one of the security guards he was satisfied that this was so. 
  2. [231]
    Another arises from events which the applicant relies on to persuade me to draw an inference.  It is said that the second respondent ‘lost it’ and called the applicant a ‘peanut’. 
  3. [232]
    There were two occasions when the second respondent called the applicant a peanut. 
  4. [233]
    The first was after she managed to pull one hand out of the handcuffs, which appears to be because they were not very tight.  When the second respondent tried to re-cuff her, she refused to put her arm behind her back, claiming to be being hurt by the second respondent and shouted to her friend to ‘get every police officers’ number’.  The second respondent said to her: ‘Cut it out you peanut.  You’re acting like an absolute peanut’.
  5. [234]
    The second time was after the applicant had been placed in the police van and she could be heard shouting and kicking the inside of the van causing it to rock.  At that time, the second respondent spoke to another officer saying ‘Nah, she’s not violent, she’s just a peanut’.
  6. [235]
    It is also true that there were two occasions when trying to inform the applicant that she was under arrest the second respondent did raise the level of his voice.  And it is true that after the applicant had been placed in the police van, the second respondent was abrupt and seemed quite flustered.
  7. [236]
    The way the second respondent puts this is that:[104]

I did not yell at (the applicant) until I became extremely frustrated with her after 7 minutes of trying to calm her down and speak with her.  She continually asked why she was under arrest but would not allow either of us to explain anything to her.  Even though I yelled at her I did not breach any policy or law.

  1. [237]
    In cross examination the second respondent did not agree that he had ‘lost it’ but did agree that he had become extremely frustrated that she had to go to the watchhouse for this offence, which was not a serious offence.  In re-examination he explained that it could have been dealt with on the side of the road, and the most she would have got was a fine and a move on direction.
  2. [238]
    What happened was that over about five minutes the second respondent was subjected to a tirade of abuse from the applicant delivered at extremely high volume and high pitch.  During this time the applicant called him and the police generally, ‘cunts’, and later in answer to a request from the second respondent for her name, she gave it adding ‘you white cunts’.  She repeated many times what was for the second respondent incomprehensible words, and repeatedly asked why she was arrested and handcuffed without waiting for an answer.
  3. [239]
    It is difficult to envisage that any person subjected to such a tirade for that length of time as can be seen and heard on the footage would not react to it in some way.  A non-violent and sensible reaction would be to walk away from it if this could be done safely.  However, this was not an option open to the second respondent because the applicant was in such a state that she could not, for her own safety and that of the public, be left on the streets.  Hence the second respondent was obliged to stay with her until the police van arrived.  This meant that he would need to exercise an extreme effort of self-control if he were not to react adversely.
  4. [240]
    It is said on the applicant’s behalf that the reaction of the second respondent in raising his voice and calling her a peanut should lead the tribunal to draw an inference that the treatment of the applicant that evening was on the basis of race. 
  5. [241]
    To my mind however, it is the opposite.  It is notable that the second respondent was stretched to a certain point but said nothing demonstrating any racial bias.  If the second respondent did hold hidden prejudices or unconscious bias, they did not emerge under that pressure.  It is not suggested that the word ‘peanut’ has any racial connotations.
  6. [242]
    To me this shows that any possibility of the applicant’s treatment by the second respondent that evening being based on race is low. 

Conclusion on whether to draw an inference

  1. [243]
    I can draw an inference in an appropriate case that the decisions were on the basis of race.  It is right to take into account all the findings together when considering this.  I have found that the actions of the second and third respondents were lawful.  I have found in any case, that none of the actions of the second and third respondents were unreasonable or unwarranted.  It is only a possibility that the decisions were made on the basis of race.  Applying the test in McCauley, since this would be conjecture only, it is not enough for me to draw the inference that any of the decisions were made on the basis of race.

Comparator tests

  1. [244]
    It is now possible for me to decide whether the man was an actual comparator. 
  2. [245]
    Dealing with the first alleged less favourable treatment step, that is the approach, I have accepted the explanation of the second respondent that he approached the applicant, and not the man, because of what was said to him by the security guard and the manager of the club about the applicant having refused to leave the club despite being asked to do so about 15 times, and that she had been forcibly removed from the club, and there was no such allegation about the man.  Hence the fact that the applicant had not left the club when required and had been forcibly removed from it was a ‘material circumstance’ which did not apply to the man.  This means that the man is not an actual comparator for this first allegation of less favourable treatment.
  3. [246]
    For the second alleged less favourable treatment step, that is arrest and restraint by using handcuffs, I have accepted the explanation of the second respondent that this was done because of the agitated state she was in, which showed that her behaviour was unpredictable, and the fact that she moved towards the man and towards the entrance to the club.  I have accepted that there was a risk of another offence being committed and that she was obstructing the second respondent in the performance of his duties.  None of these things applied to the man at that time (it was before he started shadow boxing).  Since these things were material circumstances but did not apply to him, he is not an actual comparator for this allegation either.
  4. [247]
    For the third alleged less favourable treatment step, that is failing to investigate the man, in so far as this did not happen because of the decision made as to who to approach I have dealt with this above.  The man was not an actual comparator.  In so far as this did not happen in the few seconds after the applicant was in handcuffs and under arrest and before the man walked away, they were in quite different circumstances.  There was good reason for the applicant’s arrest and handcuffing and therefore she needed to be protected and confined and continued attempts made to calm her down.  These were material circumstances which did not apply to the man.  He was not an actual comparator for those few seconds.
  5. [248]
    On my understanding, the actual comparator is not relied on for the fourth alleged less favourable treatment step (failure to abate and removal).
  6. [249]
    It is necessary therefore to construct a hypothetical comparator.  That is someone in the same circumstances as the applicant but without the attribute of race.  The comparator is someone of about her age and build who was acting in the way she was acting, who had not left the club when required, had been forcibly removed from the club and then who continued to behave in the way the applicant did as found in these reasons.  The comparator should not have the applicant’s attribute and to ensure that the test is properly applied, I am going to say that the hypothetical comparator is a woman who appeared to be a white Caucasian.  The same result is reached if the hypothetical comparator better suits the case put forward and is a woman who appeared not to be Aboriginal.
  7. [250]
    There is nothing to show that such a hypothetical comparator would have been treated any differently with respect to any of the heads of less favourable treatment and as stated above I cannot draw an inference that this would have happened.

Conclusion

  1. [251]
    The second and third respondents could have dealt with the applicant in a different way. 
  2. [252]
    The question is whether their decisions to treat her in the way they did that evening were, either consciously or unconsciously, on the basis of race.  There is nothing to show that this was the case.  Since this is difficult to prove I have considered whether I can draw an inference that it was, but I cannot do so.  The result of the comparator test was negative.  The complaint fails.

Non-publication order

  1. [253]
    On 24 September 2020 a non-publication order was made by the tribunal in a compulsory conference protecting against the publication of the names of all individual parties.  On 17 March 2021 this was amended by consent to protect only the names of the second and third respondents.
  2. [254]
    There is nothing on the tribunal file showing why the non-publication orders were made.  It is usually the case however, that one of the circumstances taken into account when making such an order is that the anti-discrimination complaint is pending.  This circumstance changes when the complaint is finally determined by the tribunal.
  3. [255]
    It is right therefore that I consider whether the non-publication order should be continued.  I directed that any party who wanted the order to be continued should file evidence and submissions about this, and I delayed the publication of my decision to allow this to be done.
  4. [256]
    The respondents ask for the non-publication order to be continued so that the second and third respondents are not identified.  The applicant does not resist this.  The evidence and submissions from the respondents about this disclose quite an unusual situation.  The applicant has published an award-winning book in which she alleged that she was assaulted by police officers (the second and third respondents) on the evening in question and that they had used excessive force during her arrest, and that this was substantiated from the available CCTV footage.  The officers were not named in the book.
  5. [257]
    It is said that if the non-publication orders are lifted so that the second and third respondents are named, then (a) because of the publicity they would have reason to fear for their safety or that of their families and (b) this ‘would potentially give rise for claim of defamation by the officers against’ the applicant.
  6. [258]
    In this complaint, deciding whether or not to make a non-publication order under section 66 of the QCAT Act, or under section 191 of the ADA, requires balancing the competing human rights of a fair hearing which normally requires a public hearing and publicly available judgments,[105] and the importance of open justice,[106] with (in this case) the right not to have privacy unlawfully or arbitrarily interfered with, and a right not to have reputation unlawfully attacked.[107]  Subject to those considerations, section 66 enables the tribunal to make a non-publication order in the interests of justice, and section 191 of the ADA allows the tribunal to preserve the anonymity of a person if it is necessary to protect (amongst other things) the privacy or any human right of the person.[108]
  7. [259]
    To my mind there is nothing to show that naming the officers would reasonably cause them to be fearful of violence.  But I can see the point that naming them could establish a cause of action in defamation where no such cause existed before.  This is because what is said in the book about the actions of the second and third respondents is untrue.  Continuing the non-publication order would stop this happening.  In my view it is necessary to do this in the interests of justice under section 66 of the QCAT Act, and necessary under section 191 of the ADA to prevent an arbitrary attack on the privacy of the second and third respondents and to protect them from having their reputation unlawfully attacked by what is said in the book.

Costs

  1. [260]
    Both sides ask for a costs order against the losing party should they be successful.
  2. [261]
    Such applications are made in counsel’s written submissions as would be usual in a mainstream court where it would be usual for costs to follow the event.  In the tribunal, special considerations apply in such costs applications under sections 100 to 105 of the QCAT Act and the tribunal would itself fix the costs if possible.[109]  Hence applications for costs should address the issues raised in those sections and in the relevant rules, and provide sufficient information to enable the tribunal to fix costs if possible. 
  3. [262]
    This has not been done and so in such circumstances often the tribunal would give directions for such issues to be addressed and give a deadline for that to be done.
  4. [263]
    Here I am going to take a different route.  I am going to treat the costs applications as being informally made, and therefore not yet formally before the tribunal.  And I am not going to give a deadline for any such costs application to be made or formalised.  There are three reasons for this approach. 
  5. [264]
    The first is that by section 106 of the QCAT Act, a costs application can be made at any time.  The second is that the successful parties may wish in the light of this decision, to reconsider whether a costs application should be made at all.  And the third reason is that currently the question of costs in the tribunal is in a state of flux.  There are conflicting authorities as to whether costs should follow the event where parties are legally represented.[110]  In time this will be clarified, but until that happens it might be unfair to impose a deadline for a costs application to be made.  Of course it would be open to a party to apply to the tribunal formally for costs anyway, or to apply for the tribunal to impose a deadline for such an application.

Footnotes

[1]  Complaint dated 28 November 2019.

[2]  Referral lodged with the tribunal on 1 May 2020.

[3]  This includes an amendment pursuant to leave given on day 2 of the hearing to allege that the arrest was unlawful.

[4]  Although in the contentions this is described as a failure to investigate the man, it is clear from the submissions made and the questions asked of witnesses that this alleged less favourable treatment is as set out here.

[5]  Opening submissions on the respondents’ behalf, [38].  This is under section 133 of the ADA.

[6]  The authenticity and accuracy of the documents sent with the referral was not agreed.  There was a transcript of the bodycam footage provided by the applicant to QHRC.  Although this transcript was not agreed so it cannot be taken as 100% accurate, comparing it with the sound on the CCTV footage shows that it is very accurate.

[7] Dovedeen Pty Ltd & Anor v GK [2013] QCA 116, [27].

[8]  Gummow, Hayne and Heydon JJ, [236].

[9]  [33] to [41].

[10]  [59].

[11]  Applicant’s counsel’s final written submissions, [48].

[12]  Applicant’s counsel’s final written submissions, [37].

[13]  [22] to [40].

[14] Chamberlain v The Queen (1983) 153 CLR 521, Gibbs C J and Mason J, [15].

[15]  There are a number of UK authorities about this, but in Australia see for example, Raphael FM in Penhall-Jones v State of NSW (No2) [2008] FMCA 832, [57].

[16]  Second respondent 26 March 2021, [20].

[17]  Second respondent 26 March 2021, [5], [6].

[18]  Shown on footage Channel 41 – outside main entry at 4.13.22am to 4.13.38am.

[19]  Mr O'Gorman’s oral final submissions.

[20]  At 4.13.38am to 4.13.40am.

[21]  At 4.13.42am.

[22]  At 4.13.42am to 4.13.45am.

[23]  At 4.13.46am.

[24]  Starting at 4.14.02am and completed by 4.14.08am.

[25]  Statement of 17 March 2021, [15], [26].

[26]  Female security guard statement 31 March 2021, [42].  The shouting and kicking can be heard on the bodycam footage.

[27]  Channel 26 Main Room 3 footage at 4.07.09am.

[28]  The second and third respondents were not aware that this call had been made when they arrived at the scene.

[29]  Mr O'Gorman’s oral final submissions.

[30]  See ‘arrest and restraint by using handcuffs – objective justification on facts not actually known (arrest)’ below.

[31]  Applicant’s counsels’ written final submissions, [80].

[32]  Wreckers Bar footage at 4.4.14am, Wreckers Entry footage at 4.4.30am, and Pool Table footage at 4.06.45am.

[33]  This is the ‘snap chat video inside Beat’ showing her departure from the Wreckers Bar.

[34]  Applicant’s counsels’ written final submissions, [170].

[35]  An entry made on the evening in question – page 75 of Exhibit 3.

[36]  This was the unchallenged evidence of the second respondent: statement 26 March 2021, [58].  Only one of the infringement notices appears in Exhibit 3, however.

[37]  Contrary to section 7(1)(c) of the Vagrants, Gaming and Other Offences Act 1931 (Qld).

[38]  Shown on footage Channel 41 – outside main entry, to be at 4.13.11am.

[39]  Although the applicant and her friend confirm that she was pointed out by the security guards, the detail of what happened is confirmed by the evidence of the security guards. 

[40]  At 4.13.16am and the few seconds after this.

[41]  Statement of 5 February 2021, [32].

[42]  Statement of 26 March 2021, [12] to [14], [97].

[43]  Statement of 5 February 2021, [29].

[44]  Applicant 5 February 2021, [31], friend 5 February 2021, [25].

[45]  Second respondent 26 March 2021, [106].

[46]  Applicant’s counsel’s final written submissions, [192](b).

[47]  Applicant’s counsels’ written final submissions, [160].

[48] Feldman v Buck [1966] SASR 236 per Napier J at 238.

[49]  [130].

[50]  Otherwise, the expression is meaningless and a contradiction in terms: Wynn-Parry J in Naylor Benzon Mining Co Ltd [1950] Ch 567 at 575, referred to in Thomas v Mowbray (2007) 233 CLR 307, [489]. 

[51]  Hayne J in Thomas, [489] so that when used in the statutory test ‘reasonably necessary and reasonably appropriate and adapted’ in section 104.4(2) of the Criminal Code 1995 (Cth) the ‘and’ requires a less intense connection.  In argument, Gleeson CJ said ‘I suppose one thing we can be clear on is that “reasonably necessary” does not mean reasonably indispensable’: Thomas v Mowbray and Ors [2007] HCATrans 76.  There is also a helpful discussion by Barrett AJA on the same lines in Jankovic v Director of Public Prosecutions [2020] NSWCA 31, [57].

[52] Jankovic v Director of Public Prosecutions [2020] NSWCA 31, [55], [56].

[53]  This is confirmed by Cash QC DCJ in Sanchez & Sanchez v Commissioner of Police [2021] QDC 076 where it was argued that there were a number of options open to the police other than arrest without warrant, including an arrest with warrant; but it was held that the mere availability of other options did not make such an arrest unreasonable, [28].

[54]  [58].

[55] Coleman v Kinbacher [2003] QCA 575 at [30] favouring a subjective approach, while R v Conway [2005] QCA 194, [19], [33] favouring an objective one.

[56]  Originally section 163, then 198 and finally 365.

[57]  By change of name of statutes referred to and with respect to juveniles.

[58]  De Jersey CJ at [13], Jerrard JA at [29] and Holmes JA at [44].

[59]  [63].

[60]  [26].

[61]  [47].

[62]  Section 99(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

[63] Jankovic v Director of Public Prosecutions [2020] NSWCA 31, [61].

[64]  These two reasons are in paragraphs (a) and (i) of section 365(1).

[65]  ‘Objective justification on what was known (arrest)’.

[66]  He said the arrest was also ‘under (i)’.

[67] R v O'Donoghue (1988) 34 A Crim R 397 per Hunt J at 401.

[68]  Section 391 of the PPRA.

[69]  This was added by amendment to the applicant’s contentions on day 2 of the anti-discrimination hearing.

[70]  Statement of 26 March 2021.

[71]  Statement of 26 March 2021, [85], [118].

[72]  Licensed as ‘The Beat Cabaret and Restaurant’: exhibit 3, page 43.

[73]  Section 104C of the Fire and Emergency Services Act 1990 (Qld).

[74]  Manager’s statement, [38], [40], female security guard’s statement, [34].

[75]  Manager’s statement, [38].  This can also be seen on the footage from the camera outside the club.

[76]  Manager’s statement, [39].

[77]  Coming under paragraph (i).  In fact the Court Brief listed four events stated to be such an obstruction, the first being this one.

[78]  Applicant’s counsels’ written final submissions [47](f), [58](c), [69](b).

[79]  Applicant’s counsels’ written final submissions [121](b), [126] to [127], [139](c).

[80]  With the caveat that this opinion is not evidence that I can take into account in any other way because the officer was not an expert witness.

[81]  Coming under paragraph (a), these being offences under sections 6 or 10 of the Summary Offences Act 2005 (Qld).  I consider below whether the applicant was intoxicated, it being denied that she was ‘particularly intoxicated’.

[82]  Coming under paragraph (g).

[83]  Coming under paragraph (h).

[84]  Under sections 50 and 52 of the PPRA.

[85]  Operational Procedures Manual Issue 65.2 Public Edition, 9 August 2018 (marked exhibit 5).

[86] Jankovic v Director of Public Prosecutions [2020] NSWCA 31, [55], [56].

[87]  Applicant’s counsel’s final written submissions [35] and [59] to [73].

[88]  Applicant’s counsel’s final written submissions [63].

[89]  ‘Approach’.

[90]  Which is agreed fact (b).

[91]  Security Registration Exhibit 3, page 37.

[92]  Manager’s affidavit, [26], [29]; female security guard’s statement, [22], male security guard’s statement, [27].

[93]  At 4.14.09am.

[94]  At 4.14.23am to 4.14.26am and again at 4.14.30am to 4.14.39am.

[95]  At 4.15.12am.

[96]  Statement of 26 March 2021, [128].

[97]  Applicant’s counsels’ written final submissions [49] to [51].

[98]  Section 377 of the PPRA.

[99]  Applicant’s counsels’ opening, [33] to [35], written final submissions, [32], [74] to [78].

[100]  Applicant’s counsels’ opening, [26](f), written final submissions, [32].

[101]  Applicant’s counsels’ opening, [26](h) and written final submissions, [32], [163].

[102]  Applicant’s counsels’ written final submissions, [169].

[103]  Mr O'Gorman’s oral final submissions.

[104]  Statement of 26 March 2021, [111].

[105]  Section 31 of the Human Rights Act 2019 (Qld) (HRA).

[106]  As explained in Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89, [8], Justice Alan Wilson, President.

[107]  Section 25 of the HRA.

[108]  I am assisted by the discussion of the competing human rights in Angelopoulos v Silkwire Pty Ltd & anor [2022] QCAT 52 (A/Senior Member Traves).

[109]  As required by section 107 of the QCAT Act.

[110]  The latest examination of this is in Valuers Board of Queensland v Murphy [2022] QCAT 295.

Close

Editorial Notes

  • Published Case Name:

    Watego v State of Queensland and ors

  • Shortened Case Name:

    Watego v State of Queensland

  • MNC:

    [2022] QCAT 341

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    27 Sep 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Angelopoulos v Silkwire Pty Ltd [2022] QCAT 52
2 citations
Jump To
Cite 1 - [2022] QCAT 52
Cite 2 - [2022] QCAT 52
Australian Christian College Moreton Ltd & Anor v Taniela [2022] QCATA 118
2 citations
Jump To
Cite 1 - [2022] QCATA 118
Cite 2 - [2022] QCATA 118
Chamberlain v The Queen (1983) 153 CLR 521
2 citations
Jump To
Cite 1 - (1983) 153 CLR 521
Cite 2 - (1983) 153 CLR 521
Coleman v Kinbacher [2003] QCA 575
1 citation
Jump To
Cite 1 - [2003] QCA 575
Couchy v Birchley [2005] QDC 334
2 citations
Jump To
Cite 1 - [2005] QDC 334
Cite 2 - [2005] QDC 334
Courtney v Thomson [2007] QCA 49
3 citations
Jump To
Cite 1 - [2007] QCA 49
Cite 2 - [2007] QCA 49
Cite 3 - [2007] QCA 49
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
2 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Department of Health v Arumugam [1988] VR 319
1 citation
Jump To
Cite 1 - [1988] VR 319
Department of Health v Arumugam [1988] VR 31
1 citation
Jump To
Cite 1 - [1988] VR 31
Dovedeen Pty Ltd v GK [2013] QCA 116
2 citations
Jump To
Cite 1 - [2013] QCA 116
Cite 2 - [2013] QCA 116
Eaves v Donelly [2011] QDC 207
2 citations
Jump To
Cite 1 - [2011] QDC 207
Cite 2 - [2011] QDC 207
Feldman v Buck [1966] SASR 236
2 citations
Jump To
Cite 1 - [1966] SASR 236
Cite 2 - [1966] SASR 236
Ferguson v State of Queensland [2007] QSC 322
2 citations
Jump To
Cite 1 - [2007] QSC 322
Cite 2 - [2007] QSC 322
Frost v Commissioner of Police [2014] QDC 294
1 citation
Jump To
Cite 1 - [2014] QDC 294
Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1
2 citations
Jump To
Cite 1 - [2019] EWCA Civ 1
Cite 2 - [2019] EWCA Civ 1
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
5 citations
Jump To
Cite 1 - [2020] NSWCA 31
Cite 2 - [2020] NSWCA 31
Cite 3 - [2020] NSWCA 31
Cite 4 - [2020] NSWCA 31
Cite 5 - [2020] NSWCA 31
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
2 citations
Jump To
Cite 1 - [2013] QCAT 243
Cite 2 - [2013] QCAT 243
Misel v Teese (1942) VLR 69
1 citation
Jump To
Cite 1 - (1942) VLR 69
Naylor Benson Mining Co. (1950) Ch 567
1 citation
Jump To
Cite 1 - (1950) Ch 567
Penhall-Jones v State of NSW (No2) [2008] FMCA 832
2 citations
Jump To
Cite 1 - [2008] FMCA 832
Cite 2 - [2008] FMCA 832
Petrak v Griffith University & Ors [2020] QCAT 351
2 citations
Jump To
Cite 1 - [2020] QCAT 351
Cite 2 - [2020] QCAT 351
Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92
3 citations
Jump To
Cite 1 - (2003) 217 CLR 92
Cite 2 - (2003) 217 CLR 92
Cite 3 - (2003) 217 CLR 92
R v Conway [2005] QCA 194
1 citation
Jump To
Cite 1 - [2005] QCA 194
R v O'Donoghue (1988) 34 A Crim R 397
2 citations
Jump To
Cite 1 - (1988) 34 A Crim R 397
Cite 2 - (1988) 34 A Crim R 397
Sanchez & Sanchez v Commissioner of Police [2021] QDC 76
3 citations
Jump To
Cite 1 - [2021] QDC 76
Cite 2 - [2021] QDC 76
Cite 3 - [2021] QDC 76
The Queen v Elliott [2020] QDC 243
1 citation
Jump To
Cite 1 - [2020] QDC 243
Thomas v Mowbray (2007) 233 CLR 307
3 citations
Jump To
Cite 1 - (2007) 233 CLR 307
Cite 2 - (2007) 233 CLR 307
Cite 3 - (2007) 233 CLR 307
Thomas v Mowbray and Ors [2007] HCATrans 76
1 citation
Jump To
Cite 1 - [2007] HCATrans 76
Valuers Board of Queensland v Murphy [2022] QCAT 295
2 citations
Jump To
Cite 1 - [2022] QCAT 295
Cite 2 - [2022] QCAT 295

Cases Citing

Case NameFull CitationFrequency
Bhathal v Zupps Mt Gravatt Pty Ltd & Anor [2024] QCAT 4962 citations
Campbell v Queensland Building and Construction Commission [2022] QCAT 4032 citations
Watego v State of Queensland and ors (costs) [2023] QCAT 2923 citations
1

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