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WTM v Commissioner of Police[2019] QCHC 2

WTM v Commissioner of Police[2019] QCHC 2

CHILDRENS COURT OF QUEENSLAND

CITATION:

WTM v Commissioner of Police [2019] QChC 2

PARTIES:

WTM

(appellant)

v

COMMISSIONER OF POLICE

(respondent)

FILE NO/S:

D63/2017

DIVISION:

Criminal

PROCEEDING:

Appeal

ORIGINATING COURT:

Maroochydore Childrens Court

DELIVERED ON:

19 February 2019

DELIVERED AT:

Maroochydore

HEARING DATE:

16 February 2018

JUDGE:

Long SC DCJ

ORDER:

The appeal against conviction is dismissed and the orders made in the Childrens Court at Maroochydore on 15 May 2017, are confirmed.

CATCHWORDS:

CRIMINAL LAW — PARTICULAR OFFENCES — OFFENCES AGAINST PEACE AND PUBLIC ORDER — ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER — OFFICER ACTING IN EXECUTION OF DUTY – ACTING WITHOUT WARRANT – Where police responded to noise complaints and in the course of shutting down a party, an officer directed a group of youths to leave the roadway and the appellant, who was 15 at the time, refused to leave the roadway and upon direction to do so, provide the officer with her name or address – where the appellant became physically and verbally resistant to officers – where the officer arrested the appellant for obstructing police and the appellant assaulted the officer and four other officers in the course of being removed to a watch-house - where the appellant was convicted of an offence of obstructing a police officer in the performance of his duties, an offence of wilful damage of police property and five offences of assaulting separate police officers in the performance of the officer’s duties - whether the officer was acting in the performance of his duties when appellant obstructed police, having regard to the sufficiency of compliance with s 633 of the Police Powers and Responsibilities Act 1992 in respect of the directions given to the appellant  - whether the arrest of the appellant was lawful and accordingly in the performance of the officer’s duties, having regard to s 13 Youth Justice Act 1992 – whether the evidence demonstrated that the arresting officer believed on reasonable grounds that the arrest was necessary to prevent the continuation or repetition of an offence

LEGISLATION:

Police Powers and Responsibilities Act 2000 ss 59, 365, 633, 790, 791

Youth Justice Act 1992 ss 11, 12, 13.

Justices Act 1886 ss 222, 223, 225

CASES:

Rowe v Kemper [2009] 1 Qd R 247

McDonald v Queensland Police Service [2018] 2 Qd R 612

COUNSEL:

S R Lewis for the appellant

A Q Stark for the respondent

SOLICITORS:

Smith Criminal Law for the appellant

Commissioner of Police for the respondent

Introduction

  1. [1]
    On 15 May 2017, the appellant was convicted, by a Magistrate in the Childrens Court at Maroochydore, of an offence of obstructing a police officer in the performance of his duties (s 790(1) Police Powers and Responsibilities Act 2000 – “PPRA”), an offence of wilful damage of police property (s 469 Criminal Code) and five offences of assaulting a police officer in the performance of the officer’s duties (s 790(1) PPRA).  Each offence occurred on 3 September 2016 and on each, the sentencing order was a good behaviour bond for a period of six months, with no recorded conviction.[1]
  1. [2]
    By notice of appeal filed on 31 May 2017, the appellant challenged those convictions. That appeal is brought pursuant to s 222 of the Justices Act 1886 and in accordance with s 222 , the notice included the following grounds:

“1. The obstruct police charge comprised two acts of contravening a police direction.  The arresting police officer (Senior Constable David Hoffman) failed to comply with the mandatory safeguards pursuant to s. 633 of the Police Powers and Responsibilities Act.

The failure of Senior Constable David Hoffman to comply with s. 633 of the Police Powers and Responsibilities Act, resulted in no lawful direction given to the appellant child.  Senior Constable David Hoffman could not have formed the reasonable suspicion that the appellant child had committed the offence of obstructing a police officer in the execution of his duties.

  1. His Honour incorrectly applied the law with respect to section 13 of the Youth Justices Act (sic) 1992 in concluding that the arrest of the appellant child was lawful.

Even if Senior Constable David Hoffman had formed the suspicion (albeit incorrectly) that the appellant child had committed an offence, the arrest of the appellant child was unlawful because he did not arrest her pursuant to any of the grounds stipulated in section 13 of the Youth Justices Act (sic), 1992.

His Honour identified grounds for arresting the appellant child that on the evidence was not held by Senior Constable David Hoffman.  His Honour ascribed his own grounds of belief to that held by the police officer at the time of the arrest, namely that the arrest was necessary to prevent a continuation or a repetition of the offence or the commission of another offence.

Even if Senior Constable David Hoffman did form a belief pursuant to s. 13(1)(a) of the Youth Justices Act (sic), 1992, the belief was not ‘reasonable’ in the circumstances.

  1. The arrest was unlawful and therefore the charges of assault police (x5) and wilful damage of police property were acts done by the appellant child in resisting and defending herself as a result of an unlawful arrest.”[2]
  1. [3]
    Accordingly and by the time that this appeal was heard and indeed by the time of the filing of the respondent’s written outline of submissions, on 21 November 2017 and was able to be listed for hearing, the only remaining practical consequence was as to whether or not there was any established ground for setting aside any of the convictions and therefore the prospective removal of them from the appellant’s juvenile criminal history.
  1. [4]
    As has been most recently recognised in McDonald v Queensland Police Service,[3] and, in the absence of any successful application to adduce “new evidence” (as is the case here), the appeal is conducted by way of rehearing on the record of the proceedings below.[4] In such an appeal, this Court is required to conduct a review of the record of the hearing and ultimately correct any legal, factual or discretionary error of the Court below, determined on the basis of that review and this Court’s own conclusions.[5] Necessarily, regard must be had to the issues raised by the grounds of appeal.[6] And that consideration is of some significance here. Although there were considerable disputes and differences in the evidence of the appellant as to the precise circumstances of the police interaction with her, nothing turns on this or upon the Magistrate’s acceptance of the evidence of the police officers and particularly Senior Constable Hoffman, in preference to that of the appellant, as the grounds of appeal are directed only at the sufficiency of the prosecution evidence, in support of the legality of the actions of Senior Constable Hoffman in dealing with and arresting the appellant. 
  1. [5]
    Accordingly it is only necessary to summarise and consider that evidence, without separately considering the Magistrate’s acceptance of it. However, it may be observed that the unchallenged findings of the Magistrate on the credibility of the witnesses, may be regarded as not just including his advantage of observation of the witnesses, but as being wholly unsurprising upon a review of the record and the understanding that the evidence of the appellant was in substantial conflict with the evidence of most if not all of the many police officers who were involved with her on 3 September 2016.

The relevant circumstances

  1. [6]
    The charges against the appellant arose from police response to a noise complaint in Parker Street Maroochydore, at about 10.00 pm on 3 September 2016,[7] and in relation to a party which was described as “having gotten out of control” and with “many uninvited guests”.[8]
  1. [7]
    In the course of shutting down the party and moving people away, Senior Constable Hoffman approached a group which included the appellant, all of whom were standing on the roadway. He directed them to move to the footpath and all, except for the appellant, did so. Senior Constable Hoffman then described the following course of events:

“Sorry, and all but one?---Yeah, all but one and that’s the defendant.  She stayed – remained in the middle of the road. I’ve then asked – I’ve identified myself. I said, “Senior Constable David Hoffman from Maroochydore Police. Move off the road, please, onto the footpath.” She said, “Fuck off, I don’t have to. It’s a public road.” I’ve then said to her, “You’re causing hazard – causing a hazard – move off the road now, thanks.” She said, “Fuck off, I’m doing nothing wrong. You can’t tell me what to fucking do.” Then at that time, I’ve observed – there’s a car coming from the western side of Parker Street towards the east. Just seen some headlights. I don’t – it was probably about 100 metres away at the time – maybe between 50 and 100 metres. It wasn’t very far away. I’ve said to her, “You’re obstructing – you’re creating a hazard on the road. Move off the road. You’re creating a hazard on the road. I’m directing you to move off the road. You’re obstructing traffic. If you don’t, I will arrest you. Do you understand?” She said to me, “Fuck off, I’m doing nothing wrong.” In that time, the car’s continued to come down the road. I’ve approached her, I’ve grabbed her by her right arm and said, “Move off the road, now.” And at that same time when I’ve grabbed her by the arm, I’ve moved – I physically moved towards the footpath and we’re now near the gutter of the car. At that – she’s yelled a barrage of abuse at me then. She said, “Fuck off, cunt. Don’t – fuck off , cunt. Don’t – you can’t touch me. You can’t – let me go” – something – words to those effects. From then, I’ve said, “I told you to move off the road. Get off the road, now.” I’ve then said, “What’s your name?” She said, “Fuck off, I don’t have to tell you anything.” I’ve said, “You have not complied with my direction. You are required to give me your name and address.” And she told me to fuck off again and this time, she started walking away from me, back onto the roadway from the gutter.”

How far away were you from her when you were having this dealing with her?---Within a metre – face-to-face with her at this time. So within arm’s length because that’s where – I’ve moved her with my one arm across off to the road and near the gutter on the side of the road. So I’m still within that one armed length of her. She’s moved back onto the road and I’ve told her “Stop. Don’t move” and she’s continued to walk off. I’ve moved towards her. I’ve grabbed her by her right arm with my right hand and said, “You are now under arrest for obstructing me.” And that’s – that time, she’s ripped her arm out of my hand – her right arm out of my right hand – and she’s punched me in the chest with the same arm once she’s got it free.”[9]

  1. [8]
    The evidence of Constable Peterson as to the same course of events was:

“And then what happened?---Hoffman said something like, “Come on. Can you move off the road, please?” And the defendant child has replied with something like, “Don’t fucking tell me what to do. I can do what I want.” Something to that effect.

Is there any further conversation that you recall?---Yeah, Hoffman has said, “Move off the road now.” And again she said, “I can – don’t fucking tell me what to do,” or something – something – something to that effect. “I’ll – I’ll – I’ll do what I want. I don’t have to move.”

And where is Hoffman at that point?---He was – he was probably three metres off to my left so he was – I was briefly aware of what he was doing and I could hear – hear the conversation. Hoffman – when – when the defendant child had said that, he said something like, “Move – move now or you’ll be arrested for obstructing police. And the defendant child has replied to him with the words “fuck off”.

And then what happened [indistinct]?--- Hoffman’s moved in and told her, “You’re now under arrest for obstructing police,” and he secured her by the right arm and started moving her off the road.”[10]

  1. [9]
    For present purposes, it is only necessary to note that other than the offence of obstruction of police, the remaining offences of which the appellant was convicted involved her conduct in resisting the actions of various police officers, who were each sequentially involved from the point of her arrest for that offence and her being taken to be processed at the watch house at Maroochydore. In particular, in that she:
  1. (a)
    Assaulted Senior Constable Hoffman in the performance of his duties, at Parker Street Maroochydore and in response to his actions in arresting her, by pulling her arm from his grip and striking him in the chest and kicking him;
  1. (b)
    Assaulted Senior Constable Peterson in the performance of his duties, at Parker Street Maroochydore and when he came to the aid of Senior Constable Hoffman, by striking him in the chest and kicking him;
  1. (c)
    Assaulted Senior Constable Abernathy in the performance of her duties, at Parker Street Maroochydore and when she also came to the aid of Senior Constables Hoffman and Peterson and as other persons at the scene became involved in what was occurring and began assailing the other police officers, by repeatedly striking her face with her fists before she was also arrested by that officer for that assault and taken to a police vehicle;
  1. (d)
    Assaulted Senior Constable Ramsden in the performance of his duties, at Parker Street Maroochydore and as he became involved in assisting Senior Constable Abernathy in the movement to and placement of the appellant in a police vehicle, by kicking him in his leg;
  1. (e)
    Assaulted Senior Constable Van den Boog in the performance of his duties, outside the watch house at Maroochydore and when he came to assist in the removal of the appellant from the police vehicle so as to take her into the watch house, by kicking him in the thigh; and
  1. (f)
    Wilfully damaged police property, by tearing the button and an epaulette from the shirt worn by Senior Constable Abernathy, as she was driving the police vehicle on Aerodrome Road towards the watch house at Maroochydore.

It may be further noted that the evidence as to the further context for these acts as constituting those offences, is of conduct on the part of the appellant which was physically and verbally resistant to all of the actions of the police officers involved in dealing with her, from the point of what Senior Constable Hoffman described as her response to her arrest by him and until after the point when she was secured in a padded cell in the watch house. 

  1. [10]
    For present purposes it is unnecessary to further examine and appropriate to proceed, as was the approach for the appellant and also accepted by the respondent, on the basis that each of the offences of assault of a police officer depended, in terms of the element of such assault occurring in the performance of the relevant officers’ duties, upon the lawfulness of the initial arrest of the appellant by Senior Constable Hoffman.

The Contentions

  1. [11]
    As is pointed out for the appellant, the course of conduct described in the evidence of Senior Constable Hoffman involved the failure of the appellant to comply with a direction to move from the roadway and also a separate direction to provide her name and address. And it may be noted that the trial was conducted with particular attention being placed upon the directions given by Senior Constable Hoffman and therefore the powers provided to him by the PPRA to give such directions. The contention in the first ground of appeal also centres upon such considerations. However, it is clear from the evidence that it was the former direction that was the critical one, in the context of the evidence that Senior Constable Hoffman acted to arrest her for obstruction of police, upon her moving back onto the roadway after she had refused to provide her name and address and after having to be escorted off the roadway upon her failure to comply with the earlier direction to move off that roadway and upon her further disobedience of a further or renewed direction not to return to the roadway.
  1. [12]
    Accordingly, the initial focus of the appellant’s submissions is upon s 59 of the PPRA, which provides:

“(1) A police officer may give to a driver of a vehicle or to a pedestrian on or about to enter a road, or to a passenger in a vehicle, any direction the police officer reasonably considers necessary for the safe and effective regulation of traffic on the road.

  1. (2)
    Also, if an emergency exists, a police officer may give to a driver of or passenger in a train any direction the police officer reasonably considers necessary.
  1. (3)
    Without limiting subsection (1), a police officer may act under that subsection if the police officer reasonably suspects an emergency exists or it is otherwise necessary to temporarily prohibit, divert or direct traffic and pedestrians.

Examples for subsection (3)—

1 a siege where firearms are being discharged and members of the public may be hurt

2 a serious or fatal road accident requiring treatment of injured persons, removal of bodies, wreckage to be cleared or evidence to be gathered for investigating the cause of the accident

  1. (4)
    A direction under subsection (1) may include a direction to the owner or driver of a parked vehicle to move the vehicle as soon as practicable.”
  1. [13]
    In support of the first ground of appeal, it is contended that:
  1. (a)
    There was an absence of evidence from Senior Constable Hoffman “as to why he considered the direction necessary for the safe and effective regulation of traffic on the road”;[11] and
  1. (b)
    There was an absence of proof that the “safeguards of section 633 were complied with”, and consequently an absence of proof of the offence of obstructing police.[12]

It is convenient to note that s 633 of the PPRA provides as follows:

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

  1. (2)
    If the person fails to comply with the direction or requirement, a police officer must, if practicable, warn the person—
  1. (a)
    it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and
  1. (b)
    the person may be arrested for the offence.
  1. (3)
    The police officer must give the person a further reasonable opportunity to comply with the direction or requirement.”
  1. [14]
    In any event and in support of grounds 2 and 3, reference is made to s 365(3) of the PPRA and s 13 of the Youth Justice Act 1992 (“YJA”), which respectively provide:

“(3) Subject to the Youth Justice Act 1992 , section 13, it is lawful for a police officer to arrest a child without warrant if the police officer reasonably suspects the child is committing or has committed an offence.

Note—

Under the youth justice principles in the Youth Justice Act 1992, schedule 1, it is a principle of that Act that a child should be detained in custody for an offence, whether on arrest or sentence, only as a last resort and for the least time that is justified in the circumstances.”;

and:

“(1)  A police officer may use the police officer’s power of arrest under the Police Powers and Responsibilities Act 2000, section 365(3), without a warrant, to arrest a child for an offence without regard to sections 11 and 12 only if the police officer believes on reasonable grounds—

  1. (a)
    the arrest is necessary—
  1. (i)
    to prevent a continuation or a repetition of the offence or the commission of another offence; or
  1. (ii)
    to obtain or preserve, or prevent concealment, loss or destruction of, evidence relating to the offence; or
  1. (iii)
    to prevent the fabrication of evidence; or
  1. (iv)
    to ensure the child’s appearance before a court; or
  1. (b)
    the child is an adult; or
  1. (c)
    the child is contravening section 278 or is unlawfully at large.
  1. (2)
    In deciding for subsection (1)(b) whether the police officer had reasonable grounds, a court may have regard to the child’s apparent age and the circumstances of the arrest.
  1. (3)
    Also, a police officer may use the police officer’s power of arrest under the Police Powers and Responsibilities Act 2000, section 365(2), without a warrant, to arrest a child without regard to sections 11 and 12.
  1. (4)
    Also, a police officer may use the police officer’s power of arrest under a warrant issued under the Bail Act 1980 without regard to sections 11 and 12.
  1. (5)
    To remove any doubt, it is declared that this section does not affect a police officer’s power under the Police Powers and Responsibilities Act 2000, section 365(3), to arrest a child without warrant for a serious offence.”

More particularly, it is contended that there was no evidence led from Senior Constable Hoffman “in relation to any belief that he held at the time for arresting the juvenile without a warrant” or as to any belief on his part “that arresting the appellant was necessary for any of the reasons contained in section 13”.[13]

  1. [15]
    It is further contended that the following reasoning of the Magistrate in concluding that s 13(1)(a)(i) was engaged, was therefore erroneous:

“Now, in terms of section 12, it is clear from the evidence that Police Officer Hoffman did not have the name or address of the defendant child so certainly could not at that time have looked at taking a complaint and summons in order to do any – take any further action if he intended to take any further action.  Once again, as I have spoken about before, section 13, police officer’s powers of arrest.  A police officer may use the police officer’s powers of arrest under the Police Powers and Responsibilities Act turning to section 365(3) without an arrest – without a warrant to arrest a child for an offence without regard to sections 11 and 12 only if the police officer believes on reasonable grounds.  Defence raise the issue that there was insufficient evidence to establish that the – that Hoffman shown on the evidence a belief on reasonable grounds that the arrest was necessary.  Now, in terms of section 13(a)(i), we all agree that that is the only relevant section that could apply:  to prevent the continuation or repetition of the offence or the commission of another offence.

In this case, as I said, in regards to the no case submission, it is clear in my mind from what – the evidence that has been given by Hoffman that, in fact, the defendant child after numerous requests and her demeanour and attitude and the fact that he was not aware of who the defendant was or where they lived – if he wanted to let her go and take action, he did not have that possibility either.  But it was clear in mind and it still is clear in my mind today based on the evidence, that it can be inferred that there were reasonable grounds for arrest, given the situation, the oncoming vehicle, etcetera;  that it was clear in his mind to [indistinct][14] the continuation or repetition of an offence or the commission of another offence.”[15]

Ground 1

  1. [16]
    The first point to note about ground 1 is that the contention that “[t]he obstruct police charge comprised two acts of contravening a police direction”, is not an entirely accurate description of the particularised charge. Whilst the offence was particularised as including at least two acts or omissions which may be described as contravening, or at least failing to comply with a police direction, it is of importance to note that the charge was brought pursuant to s 790(1) of the PPRA and that, relevantly, s 790 provides:

“(1) A person must not—

  1. (a)
    assault a police officer in the performance of the officer’s duties; or
  1. (b)
    obstruct a police officer in the performance of the officer’s duties.

…..

  1. (2)
    In this section—

assault has the meaning given by the Criminal Code, section 245.

obstruct includes hinder, resist and attempt to obstruct.”

Accordingly, the appellant was not charged with the less serious offence of contravening a direction or requirement of a police officer given under the PPRA, as proscribed by s 791 of the PPRA

  1. [17]
    Further, it may be noted that notwithstanding that the charge encompassed the appellant’s separate acts of non-compliance with directions given to her by Senior Constable Hoffman, the following particulars extended beyond those acts and encompassed the entire course of conduct described by Senior Constable Hoffman, as prompting his arrest of the appellant:

“That on the third day of September 2006 at Parker Street Maroochydore, [WTM] obstructed a police officer namely Senior Constable David Michael Hoffman in the performance of the officers duties namely after the defendant has failed to comply with a lawful direction to move off the road pursuant to s.59 PPRA and had been escorted off the road by HOFFMAN, she refused to provide her name and address and started moving back onto the road way.”[16]

In this instance it is to be noted that not only was the charge so particularised, but the evidence in support of it not only reflected those particulars but also the accompanying context of the appellant’s verbalised defiance of the authority and actions of Senior Constable Hoffman. 

  1. [18]
    Much may depend upon particular circumstances, but it should not be assumed that a mere contravention of a direction or even a sequence of directions given under the PPRA, would necessarily amount to obstruction of a police officer in the performance of his or her duties. The essential point is that the offence defined in s 790(1) requires proof of obstruction of a police officer in the performance of his or her duties, rather than the contrasting position pursuant to s 791, where the requirement is as to proof of contravention of a requirement or direction given by a police officer, under the PPRA.
  1. [19]
    It is to be noted from the appellant’s reference to Rowe v Kemper,[17] that the approach of the Court of Appeal in respect of the then equivalent provision to s 791(2),[18] was that the analogue provision to s 633[19] was relevant to the question as to whether the direction alleged to have been contravened was made under the PPRA and more particularly as to whether there was any contravention of any such direction.  In that case the obstruction of police charge which was also the subject of the appeal, was differently particularised, in that it was in the nature of resistance to the arrest made for the contravention of a direction charge.  It may be noted that the reasoning of Holmes J,[20] was that in consequence of the finding of an absence of entitlement for the arrest, because of the finding of absence of any contravention of a direction made under the PPRA, proof was lacking as to the element of the obstruction offence that the arresting officer was performing his duties when he attempted to effect the arrest.
  1. [20]
    In the present instance, there is not the same direct connection between the requirements of s 633 and proof of an offence of contravening a direction given under the PPRA.  However, the offence of obstruction of police requires proof that Senior Constable Hoffman was obstructed in the performance of his duties and because of the particularisation of the appellant’s conduct, in so obstructing him, so substantially involving the giving of directions and her defiant refusal to comply with them, the extent of compliance with the obligations in s 633 is relevant to the question as to whether Senior Constable Hoffman was acting in the performance of his duties and in response to which the appellant obstructed him. 
  1. [21]
    Similarly and given, as has been noted, the centrality of the direction given pursuant to s 59 of the PPRA, a failure to prove a basis for the giving of such a direction pursuant to that section, may also preclude a finding that Senior Constable Hoffman was relevantly acting in the performance of his duties in purporting to do so.
  1. [22]
    Further and whilst much of the Magistrate’s reasoning may be seen as reflective of the particular attention upon the directions given to the appellant by Senior Constable Hoffman and the legislative provisions relating to the giving of such directions, and notwithstanding the absence of any particular complaint as to this by the appellant, a notably unfortunate feature is the characterisation of a failure to comply with a lawful direction, rather than attention to the elements of the offence charged pursuant to s 790(1). As may be seen from the following extract, this occurred despite the Magistrate’s more appropriate notation of the composite and sequential conduct of the appellant:

“I do note for the record that no warning was given in terms of the name and address, and it should have been.  Having said that, in terms of the particulars of the charge, I disagree with Defence that, in their particulars, every act must be proven in order to determine whether a – the charge is proven to fail to comply with a lawful direction. 

In my view, Prosecution have relied on a sequence of events that have transpired.  As I have said previous, breaking up those acts, there could have been three separate failure to comply with lawful direction.  I am – there is the escorting off the road.  He refused, and – sorry, I should say the direction not to move off the road, and then there was a refusal to provide name and address and then started – the third one could be started moving back onto the roadway after. 

I am satisfied the Prosecution have proved, on the balance of – beyond reasonable doubt, I should say, that the Defendant has failed to comply with a lawful direction, and that being to move off the road as directed pursuant to section 59, that numerous requests were given and that a warning was given, as required, and that even after the warning was given, sufficient time, reasonable time, was given in order for the Defendant child to move off the road.  It subsequently did not happen and required her to be grabbed and escorted off the road by Hoffman.”[21]

  1. [23]
    Notwithstanding these apparent difficulties in the Magistrate’s reasoning, in the exercise of the function of this court and in rehearing this matter by way of appeal, it is of importance to note that apart from those specific issues which have been noted as raised by the grounds of appeal, there is no issue raised or contention that Senior Constable Hoffman was acting other than in the performance of his duties in dealing with the appellant. As Senior Constable Hoffman explained, having attended in respect of the party and in response to the request of the “host” to shut it down,[22] he and Senior Constable Peterson were involved in doing that and consequently dealing with what he described as a “disturbance” in Parker Street, involving dealing with 100-150 youths:

“Continually going around, moving people off the street, using our tip out powers because there’s consuming liquor in a public place and that continued to about 10.50.”[23]

He further explained that:

“From 10.20-10.50…we were going from group to group, moving on as cars and other traffic were coming – or – cars were coming down – traffic was coming down the road.”[24]

  1. [24]
    Moreover and in respect of the issues raised in relation to the requirements of s 633 of the PPRA, and immediately prior to the findings set out in paragraph [15] above, the Magistrate made important findings that were not only justified by, but appropriate according to the evidence of Senior Constable Hoffman, in finding that after the appellant was directed, twice, by him to move off the road and she responded on each occasion crudely and obscenely by indicating not only her mistaken view that the police officer could not so direct her but also her refusal to do so, Senior Constable Hoffman provided a warning in sufficient compliance with s 633(2) and in recognition of the practicalities of the situation in which Senior Constable Hoffman acted. Those findings were as follows:

“Hoffman clearly gives the – numerous directions – because there is a whole heap of people around.  It is a situation which is very difficult to handle with many utes coming out of a party onto the road and there is issues of safety in regards to cars coming and going.  And Hoffman says at 22 of the transcript – he observed there was a car coming from the western side of Park Street towards the east.  He had seen some headlights and he said there was probably about 100 metres away or maybe between 50 and 100 metres away.  It was not, in his mind, very far away and he said to the defendant child, “You are obstructing.  You are creating a hazard on the road.  Move off the road.  You are creating a hazard on the road.  I am directing you to move off the road.  You are obstructing traffic.  If you do not, I will arrest you.  Do you understand?”  And then she replied with telling him to “Fuck off” and saying that she had done nothing wrong. 

The car continued to come down the road and he approached her.  He grabbed her by the right arm and said, “Move off the road now.”  At the same time, when he grabbed her by the arm, he moved – he physically moved her towards the footpath.  Now, at – near the gutter – the car.  And then a barrage of abuse started from there.  Now, if I turn to the provision, in my mind, the warning was given as required by subsection (2).  Questions will be raised as to whether that particular warning – and you have got case law saying it does not have to be absolutely verbatim or precise, but as has been raised by Defence, was the direction given clear and understandable to a 15 year old child – the defendant?  In my mind, in this particular case, it was very clear.  The defendant would have clearly known that if you do not comply, what the consequences were. 

This particular offender child and all children of that age know that if they do not do what is required by a police officer they could be facing arrest and I think this is – in my mind it was given clearly and there would be no mistake that the offender would have been aware if she continued in her action she would be arrested.  Now, subsection (3) relies on the fact the police officer must give the person a further reasonable opportunity to comply with the direction.  Well, clearly after giving the warning he said, “Do you understand?”  She swears at him and then at the time the car is continuing to come down the road.  He approaches her then and takes the action.  Between the time of actually grabbing her and giving the warning may have only been a couple of seconds, but once that warning was given the defendant could have walked off the road.  And on the evidence of Hoffman that did not happen.  So in my mind those elements of section 633 have been complied with and the safeguards have been given in terms of what is required.

Now, having said that, there is still a requirement under the Juvenile Justices Act.  Questions have been raised as to why didn’t the police officer comply in regards to part 2, special provisions about policing and children.  Now, section 11 was raised where there are a number of options a police officer can take in terms of before starting a proceeding against a child for an offence other than a serious offence.  To take no action, to administer a caution to the child, to refer to the offence to the Chief Executive for a restorative justice process and then there are some other issues around graffiti and minor drugs, etcetera. 

Now, as far as not taking any action, as I have said, there is an issue for Officer Hoffman.  In his mind, it was a safety issue in relation to oncoming car or cars.  I think it would seem from the evidence inferred from the evidence that that was clearly in his mind.  He had to take some action which he did.  On the evidence at a (sic) early stage perhaps he could have looked at the option of taking a precaution.  However, given the circumstances of the case not only, in particular, this defendant, but considering the case there was numerous youths running around coming from a party that obviously there was consumption of alcohol.  They were young.  They were rowdy.  Some of them would not have been impressed that the party had been closed down.  It had the potential to be a volatile situation which it turned out to be.”[25]

  1. [25]
    Putting aside, for present purposes, the complication of the additional and separate question as to the lawfulness of the arrest of the appellant and also leaving aside the stated assumption as to the knowledge of all children and therefore focussing on the findings relating to the evidence in this case, it should be concluded that those findings are appropriate to the evidence of Senior Constable Hoffman, in that his evidence:
  1. (a)
    Provided a sufficient indication as to why he considered it necessary for the safe and effective regulation of traffic on the road, to initially give the direction to the appellant to move from it; and
  1. (b)
    In the context of his further evidence as to what was occurring in the vicinity,[26] it was and is appropriate to find that he reasonably held that consideration or view, both initially and when the direction was subsequently repeated; and
  1. (c)
    Demonstrated that in the context of the warning initially given to the appellant and the apparent suddenness and brevity of her further defiance of the subsequent directions of this officer, that it was not practicable nor necessary for further warning pursuant to s 633(2). 
  1. [26]
    In short, it should be concluded that this evidence provided a sufficient and appropriate basis for a conclusion that there was proof beyond reasonable doubt of the applicant’s offence of obstruction of a police officer in the execution of his duties.

Grounds 2 and 3

  1. [27]
    There are different considerations as to the finding as to the lawfulness of the arrest of the appellant. The issue here centres upon the application of s 13 of the YJA, which must be viewed, as the Magistrate noted, in the context of s 11 and, particularly, s 12 of that Act.  The latter section provides:

A police officer starting a proceeding against a child for an offence, other than a serious offence, must start the proceeding by way of complaint and summons or notice to appear, unless otherwise provided under this Act.”

Accordingly, the particular concern is as to the identification, in the evidence, of the basis upon which Senior Constable Hoffman acted otherwise and pursuant to s 13 and therefore in the performance of his duties in arresting the appellant.

  1. [28]
    The effect of the appellant’s contention is as to an absence of evidence as to the belief of Senior Constable Hoffman as to the arrest being necessary for any basis as set out in ss (1)(a) and that there was absence of reasonable grounds for any such belief. And, the further complaint is that the Magistrate has simply identified or formed his own view as to the necessity identified in s 13(1)(a)(i) being open upon the evidence. This is particularly, in the context that Senior Constable Hoffman was simply not questioned as to this issue in evidence in chief or in re-examination and that in cross-examination, the issue was the subject of the following evidence:

“And you say that [WTM] – you arrested her because you say she obstructed you in the performance of your duties?---That’s correct.

You say that you said:

I told you to get off the road. Get off the road now.

?---Yes.

Then you said:

  What is your name?

?---That’s correct.

She said:

  I don’t have to tell you fucking anything.

Is what you say happened?---Yep.

And then you said:

You have failed to comply with my direction. You’re now required to tell me your name and address.

?---That’s correct.

She said:

  Fuck off.

And then she started to walk?---Yes.

And you say, therefore, you had the power to arrest her for obstructing you?---That’s correct.

So you accept that you arrested her without warrant?---That’s correct.

You’ve got 14 years’ experience as a police officer?---That’s correct.

Tell me what your knowledge of section 13 of the Youth Justices (sic) Act is?---I don’t have that in front of me. I’m not sure what’s in that section of the Youth Justice Act.[27]

  1. [29]
    Whilst police officers in the exercise of their duties and in giving evidence as to their actions, are not to be expected to deal with the law relating to their conduct as if they were engaged in a legal examination or in giving legal advice, it is a reasonable expectation that they will have training in and familiarity with the legal requirements for the exercise of their powers. And in respect of officers who may encounter and have to consider whether to arrest a child,[28] the particular requirements of a lawful exercise of such a power. And it is necessary to bear in mind that, as the circumstances demonstrate here, the concern will often be with after the event assessment of a dynamic situation which required quick judgement or decision, as the situation developed and circumstances changed or enlarged.
  1. [30]
    The real difficulty, to which the respondent’s concession is directed, is the absence of any further evidence and particularly as might have been the subject of re-examination, in the light of the cross-examination, in identifying any relevant belief that the officer had, when he acted to arrest the appellant. For instance, there is no evidence of any belief that he was dealing with an adult, which if assessed to be supported by reasonable grounds, a sufficient basis of compliance with s 13(1)(b) of the YJA and a basis for lawful arrest if there is otherwise compliance with s 365 of the PPRA
  1. [31]
    In written submissions, the respondent makes a concession that the arrest of the appellant was unlawful, as follows:

“7.2.1 It is conceded that the arrest of the appellant was unlawful as there was no evidence given by Senior Constable Hoffman that he held belief pursuant to any of the provisions of section 13 Youth Justice Act.

7.2.2 The Magistrate erred by drawing an inference as to Senior Constable Hoffman’s belief in relation to section 13 Youth Justice Act when his evidence was clear that he arrested the appellant for obstructing him.

7.2.3 The Magistrate was not entitled to make this inference in a circumstance where Senior Constable Hoffman gave direct evidence about the power he was acting under to arrest the appellant without warrant.”

  1. [32]
    At the hearing of the appeal the parties were alerted that the Court may not be minded to accept the concession and required detailed submissions on the issue and whilst for the appellant the point was pressed, counsel for the respondent neither embraced nor was prepared to resile from the concession.[29]
  1. [33]
    An immediate difficulty with the second and third aspects of the concession is that, as is apparent from the evidence set out above,[30] neither the questions nor the responses of Senior Constable Hoffman to them, were expressly directed at a belief based upon the immediate past commission of an offence of obstructing him in the performance of his duties, as opposed to any continuation or repetition of such an offence. 
  1. [34]
    But the issue touched upon is a significant one in the context of the need for proof, beyond reasonable doubt, that the appellant was reacting to a lawful arrest and accordingly not only that she assaulted a police officer but did so when that officer was acting in the performance of duties. The significance of the point is to be understood in the statutory context of the limitations placed upon a police officer’s power to arrest a child without warrant, for other than a serious offence. Such a power in respect of adults is broadly expressed in s 365(1). For present purposes it is only necessary to note the following part of that provision:

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;

 

As has been noted and in respect of a child, s 365(3) then expressly makes the power of a police officer to arrest a child who the officer “reasonably suspects…. is committing or has committed an offence”, subject to s 13 of the YJA

  1. [35]
    The effect of s 13 of the YJA is to place substantial limitation upon the lawful exercise of any such power:
  1. (a)
    First there is the emphasis that a police officer may do so without regard to s 11 and s 12 and therefore the stated preference for an approach which avoids arrest, “only if” the police officer holds a relevant belief on reasonable grounds;
  1. (b)
    Secondly and perhaps as demonstrated by the evidence here, curiously and unlike the position pursuant to s 365(1)(b) of the PPRA in respect of an adult, there is no power to arrest a child in order to make enquiries to establish identity and therefore be able to proceed in some manner as stated to be preferred by s 11 and s 12 of the YJA.  However, it is to be noted that there is repetition of a power of arrest in order to ensure the child’s appearance before a court;
  1. (c)
    Thirdly, there is the distinction that s 365(1) requires “a reasonable suspicion”, whereas s 13(1) requires a state of mind of some greater degree of conviction: “belief on reasonable grounds”;[31]
  1. (d)
    Fourthly, the requisite suspicion in the application of s 365(1)(a) of the PPRA is directed at whether an offence has or is being committed and the reasonable necessity as to a relevant reason for the arrest, is for objective consideration. However and whilst s 365(3) of the PPRA extends the same consideration as to reasonable suspicion, in addition and as a subjective consideration as to the requisite state of mind, s 13(1)(a) YJA requires belief in a relevant “necessity”, such as is provided in sub-paragraph (i): “to prevent the continuation or repetition of an offence or the commission of another offence” and provided that there are reasonable grounds for such belief.  Accordingly, mere belief as to any necessity for arrest for the past commission of an offence would not suffice.
  1. [36]
    As was noted by Holmes J, albeit in reference to an exercise of a different power, in Rowe v Kemper:[32]

“The Magistrate was not entitled to identify for himself an additional suspicion open on the evidence at large, reasonable or not, and ascribe it to Constable Kemper. The suspicion in question had to be held by the police officer, and acted on by him for the purposes of giving a direction, before its objective reasonableness became relevant.

….

The learned District Court judge similarly seems to have regarded it as permissible for the Magistrate to act on the basis of a suspicion available on the evidence but not actually held.  In the passage set out at [58] above, he observed (with respect, correctly) that the Magistrate could act on ‘the evidence of Constable Kemper about his reasons for giving the direction’; but he went on to say that further the Magistrate could be satisfied that Mr Rowe’s ‘aggressive, quarrelsome and threatening behaviour’ was interfering with the comfort of others.  That, in my view, repeats the Magistrate’s error.”

  1. [37]
    However and in the same case, and in the judgment of Mackenzie AJA, the following observations are made:[33]

“What is a “reasonable” direction has to be judged in light of the reasonable suspicion that is held. The suspicion must be that held by the police officer (Courtney v Thomson (2007) 170 A Crim R 233; [2007] QCA 49; Ferguson v State of Queensland [2007] QSC 322). While the holding of a suspicion, which is a state of mind, can be inferred from circumstantial evidence in the absence of any direct evidence from the person concerned, the question is whether the suspicion was in fact held by the person. The relevance of that proposition becomes apparent later in connection with the approach of the Magistrate and of the District Court judge on appeal from the Magistrate.”

  1. [38]
    For an arrest that satisfies the requirements of s 13 of the YJA, and if the evidence established a belief in necessity to prevent the continuation or repetition of the offence of obstruction of the performance of police duties, held on reasonable grounds, it would be inconsequential that the evidence also established, or left open an inference, that the police officer’s actions were or may have been complicated by additional factors or motivation, for instance of necessity to obtain identifying particulars. Of course and if there is reliance only on circumstantial evidence, proof beyond reasonable doubt of a relevant belief requires attention to the necessity that the inference must be the only rational inference open on the evidence.[34]
  1. [39]
    Here the evidence very clearly raises the inference that Senior Constable Hoffman acted because and when the appellant continued or repeated her obstruction of his performance of his duties and particularly when she renewed or continued her intention to ignore and disobey the repeated direction to stay off the roadway, in the further context of her refusal to identify herself. Moreover and as is the implication of his answers in cross-examination, it was the commission of such an offence that was in his mind, as prompting his actions, in circumstances where the appellant had demonstrated a determined intention to defy the directions of the police officer and as has been found, thereby and with her accompanying abuse, obstructing the performance of the duties, in the course of which, those directions were given.
  1. [40]
    There can be no doubt that in the circumstances and despite the relatively short and dynamic nature of his interaction with the appellant, Senior Constable Hoffman may be seen as acting without any undue haste or precipitation. In the circumstances it should be concluded that:
  1. (a)
    The only rational inference to be drawn on the evidence is that Senior Constable Hoffman acted, at least partly, in a belief that it was necessary to arrest the appellant to prevent the continuation or repetition of her offence of obstructing the performance of his duties; and,
  1. (b)
    That there were reasonable grounds for such belief.

It is therefore appropriate to conclude that Senior Constable Hoffman lawfully arrested the appellant, that the concession of the respondent should not be acted upon and upon a review of the evidence, it was proven beyond reasonable doubt that Senior Constable Hoffman acted lawfully in arresting the appellant and that therefore the perceived impediment to her conviction of the subsequent offences is not present.

  1. [41]
    It remains only necessary to note that had a different conclusion been reached as to the lawfulness of the arrest of the appellant, the further contention of the respondent that this nevertheless did not impugn the conviction of the appellant in respect of the offence of wilful damage, would have been accepted. That is because it was not an element of that offence that any relevant police officer was acting in the performance of duties at the time of its occurrence and notwithstanding that the offence occurs as part of the sequence of the acts of the appellant in the course of her being arrested and taken to the watch house to be processed. As the respondent points out, the appellant admitted to pulling at the Constable’s shoulder but contended it was because the Constable had made insulting comments towards her and even though not raising any defence to the charge, the appellant’s evidence in that regard was not accepted by the Magistrate. Further the damage to the shirt is evidenced in the photographs placed in evidence,[35] and there is no other contention raised other than that charge was itself proven beyond reasonable doubt.

Conclusion

  1. [42]
    In the circumstances the appeal is dismissed and the appropriate order pursuant to s 225(1) of the Justices Act 1886,[36] is to confirm the convictions of the appellant, entered at the Childrens Court at Maroochydore on 15 May 2017.

Footnotes

[1] When she gave evidence on 15/5/17, the appellant stated that she 15 years old; T 15/5/17,1-5.16.

[2] A fourth ground of appeal included in the notice of appeal was expressly abandoned by the appellant in her written outline filed on 7 September 2017, at [3].

[3] [2018] 2 Qd R 612 at [47]. 

[4] Justices Act 1886, s 223.    

[5] See also: s 223 Justices Act 1886 and  Powell v Chief Executive Officer of Australian Customs Service [2016] QCA 313, at [33]-[34] and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, at 686-7, Fox v Percy (2003) 214 CLR 118, at [25], Teelow v Commissioner of Police [2009] QCA 84, at [2]-[4], Tierney v Commissioner of Police [2011] QCA 327, at [26], Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181, at [10], Commissioner of Police v Al Shakaji [2013] QCA 319, White v Commissioner of Police [2014] QCA 121.

[6] Justices Act 1886, s 222(8)(a) and see: Forrest v Commissioner of Police [2017] QCA 132. 

[7] T1/3/17, 1-21.1-6.

[8] T1/3/17, 1-21.8-12.

[9] T1/3/17, 1-21.45 – 1-22.33.

[10] T1/3/17, 1-40.35 – 1-41.6.

[11] Appellant’s written submissions at [10].

[12] Appellant’s written submissions at [12]-[22].

[13] Appellant’s written submissions at [29]-[30].

[14] It would appear and is appropriate to proceed on the basis that the indistinct word in the transcription was “prevent”.

[15] D5.1-23.

[16] Ex. 1

[17] [2009] 1 Qd R 247.

[18] Then numbered s 445(2).

[19] Then numbered s 391.

[20] [2009] 1 Qd R 247 at [82].

[21] D5.25-43.

[22] T1/3/17, 1-21.20.

[23] T1/3/17, 1-21.30-33.

[24] T1/3/17, 1-25.33-35.

[25] D3.35-4.45.

[26] T1/3/17, 1-21.14-25.

[27] T1/3/17, 1-36.42 - 1-37.36

[28] At the relevant time, a person under the age of 17 years but now under the age of 18 years. See Youth Justice (Transitional) Regulation 2018.

[29] Made in written submissions earlier prepared by another prosecutor.

[30] See para [28], above. 

[31] See: George v Rockett (1990) 170 CLR 104 at 115-116.

[32] [2009] 1 Qd R 247 at [70]-[71].

[33] Ibid at [91] and see also [16]-[21] per McMurdo P.

[34] See Shepherd v R (1990) 170 CLR 513 at 578.

[35] Ex. 2.

[36] See s 117 Youth Justice Act 1992.

Close

Editorial Notes

  • Published Case Name:

    WTM v Commissioner of Police

  • Shortened Case Name:

    WTM v Commissioner of Police

  • MNC:

    [2019] QCHC 2

  • Court:

    QChC

  • Judge(s):

    Long DCJ

  • Date:

    19 Feb 2019

Appeal Status

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