Stillman v Vose[1997] QDC 201

ON APPEAL FROM JUSTICES

ANDREW PETER STILLMAN

AND

PETER WILLIAM VOSE

REASONS FOR JUDGMENT - BOULTON D.C.J.

Delivered the 29th day of September, 1997

This is an appeal against a decision of Mr. Dooley S.M. on 1 July 1997 whereby the appellant was convicted of using obscene language in a public place in breach of s.7(1)(c) of the Vagrants, Gaming and Other Offences Act (1931) (“the Act”).

No issue arises before me as to the findings of the Magistrate that the appellant used the words complained of and that those words were in fact obscene. The principal issue surrounds the finding that the location where the plaintiff used the offending words was a public place. The primary thrust of the appeal is to the effect that this finding was wrong in law. There was an alternative basis considered by the Magistrate in that the appellant was “so near a public place...that any person who might be therein...could...hear.” The Magistrate did not see it necessary to amend the charge under s. 48 of the Justices Act being of the view that the area where the appellant was located within the grounds of the Kippa Ring State School was a public place. The appellant's counsel, Mr. Farrell, submits that the prosecution, having made an election to charge his client on one basis, was not entitled to alter the charge at a later point of time.

It should be noted that it was Mr. Hunter's submission on behalf of the Crown that were the appeal to succeed on the first issue, viz, whether the grounds of the Kippa Ring State School were a public place, the Appeal Court should nonetheless do what the Magistrate had neglected to do and amend the charge pursuant to s.48 of the Justices Act in the manner that I have described above.

The definition of “public place” in the Act is an inclusive one. It is defined to include:

There was evidence from the police officers before the Magistrate which was to the effect that they had been called to a disturbance outside of the hall on the night in question. When they arrived there were 30 to 40 persons outside of the hall, most of whom were described as juveniles. There was a function of some kind going on inside the hall. In later evidence it emerged that this was a birthday party for a 17 year old girl and was being attended by 150 - 250 persons. Some of the persons outside the hall may not have had invitations but the precise position concerning this aspect of the matter does not seem to have been clear.

The principal of the school gave evidence to the effect that the hall in question was hired out to persons wishing to use it. That was conditional upon them leaving the premises in good order. Persons using the hall were entitled to have access to the hall via the area in front of the hall which is the area relevant to this appeal, and were also entitled to use the school toilets.

It would seem not to have been in dispute before the Magistrate that both gates to the school grounds were open. No attempt was being made to restrict entry at these points. Certainly no check was being made of invitations at those points. There were no signs prohibiting entry. There may well have been some checking of invitations at the door of the hall itself, but this would seem to be irrelevant for present purposes.

The submission of Mr. Farrell was to the effect that the function on the night in question, though involving upwards of a couple of hundred people, was a birthday party to which entry was by invitation. Accordingly, the area in question was not being used for a public purpose and was not open to access by the public at large.

He further submitted that under the under the Education (General Provisions) Act of 1989, it is provided:

It was submitted that uninvited persons on the night in question had no entitlement to be present in the vicinity of the hall and could not be said to be present there as a result of the express or tacit consent or sufferance of the owner.

There would seem to be conclusive evidence that this hall was available for hire to members of the public, at least in out of school hours when it was not being used by the pupils. It may well be said that it was only open to such hire in late afternoons or evenings and may not have been open to such access at other times, e.g., in the early hours of the morning, but the definition provides for this eventuality by the words “and whether the same is or is not at all times so open...”.

I have perused the first and second reading speeches of the Home Secretary in the 1931 Parliamentary Debates when introducing this legislation but those speeches contain no assistance in resolving the present issue.

In Ward v. Marsh (1959) VR 26, the Full Court of the Supreme Court of Victoria considered the term “public place”. There was a quite different but inclusive definition to be found in the relevant Victorian statute. Lowe J. thought the existing state of the law to be “a wilderness of single instances”. He thought it quite impossible to frame a definition which would cover all cases as the purposes of the legislation or by-law or regulation differed so widely. He considered it essential to consider what in each case was the mischief with which the legislature sought to deal. At page 28 he said:

In Regina v. Smith (1969) Tas S.R. 159, the Tasmanian Court of Criminal Appeal considered the term “the public” as used in legislation relating to the offence of dangerous driving. Burbury C.J. at p.165 said:

In the present instance the legislature might be thought to be proscribing offensive conduct of various kinds which occurred either in the presence of other members of the community or in places where other members of the community might be expected to be. Fairly obviously it is not intended to catch conduct which occurs and does not extend beyond the bounds of private property and which affects at most only persons who stand in some private relationship.

In McAneny v. Kearney ex parte Kearney (1966) Qd.R. 306 the Full Court of the Supreme Court of Queensland considered the term “public place” as it might apply to the waiting room of a medical practitioner's surgery out of hours. Stable J., with whom Skerman J. agreed, considered there was no evidence on which the Magistrate could find beyond a reasonable doubt that the waiting room was a public place at the time the obscene words were spoken. The only signficant evidence on the point was to the effect that prior to the Constables taking the appellant to the surgery, the complainant had rung the doctor and asked if he could bring a person around for examination. This factor militated against the waiting room being considered a public place.

This decision would seem to indicate that regard must be had to all relevant factors including time. It would seem obvious that in normal surgery hours a medical practitioner's waiting room is open to access by the public and as such is a public place. This would only seem to be true of normal surgery hours. It does not follow that such a waiting room is necessarily a public place outside of such hours.

Where the public have access to a place, albeit on payment of a fee, and at limited times, it is not to the point to question the motives of various individuals who might actually be in the place at such times. As was said by Lowe J. in Ward v. Marsh (supra) at p.28:

That case had concerned the ground floor of Myer Emporium in Melbourne at a time when it was open for business.

It would produce, in my view, quite an absurd result if the question as to whether a place attended by a large number of people came within the section could only be resolved on an analysis of the reasons for them being there. The hall in question was open to access by the public at least during letting hours.

The Magistrate's reasons are somewhat cryptic but he would seem to have relied upon the line of argument that the hall in question was available for hire to the public at large, that persons using the hall had access to the area in question which was therefore a place open to access by the public. Having regard to the very large number of people attending on the night in question, the time, and other factors to which I have referred, that seems to be not only correct in a strict literal sense but also in a real or practical one.

It would also seem to me to have been open to find that the open gates and the absence of any checking of invitations or other restriction was sufficient to establish that the area in question was a place open to access by the public, at least with the tacit consent or sufferance of the owner. I am satisfied then that the Magistrate was correct in finding that the area near the front of the hall at the Kippa Ring State School was a public place at the relevant time. The appeal must be dismissed.

As was the case with the Magistrate, it is not necessary for me to consider whether the wording of the charge should be amended pursuant to s.48 of the Justices Act. It would have been quite open to the Magistrate to have done so. In Hayes v. Wilson ex parte Hayes (1984) 2 Qd.R. 114, it was determined by the Supreme Court of Queensland that the test to be applied in the case of amendment pursuant to s.48 of the Justices Act is whether the offence sought to be charged by the amendment is one cognate to the offence in respect of which the amendment is sought. The amendment that might have been made by the Magistrate would clearly have satisfied that description.

It is submitted by Mr. Farrell that the prosecution, having “drawn a line in the sand”, is not free to cross that line, but such a view is plainly not consistent with s.48. Mr. Farrell submits that his client would have been prejudiced in his defence but that submission also cannot be sustained. The defence of his client was to the effect that the words complained of by the police officers were in fact said, but were said by someone else. The police officers were at the time in the police car in an outside street. There was simply no argument that that did not constitute a public place. In Beer v. McCann (1993) 1 Qd.R. 25 at 27 Derrington J. referred to a situation where a Magistrate had been under a duty pursuant to s.48 of the Justices Act to amend the complaint. He went on to say:

I should make it clear that if I had not been of the view that the Magistrate was correct in his finding that the place was a “public place”, I would have taken the step of amending the complaint to include the words “so near to any public place that any person that might be therein...could...hear.

The appeal would then have failed on that basis.

I dismiss the appeal and order that the appellant pay the respondent's costs of and incidental to the appeal to be taxed.