Coleman v Power[2001] QDC 27

DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT – PACK D.C.J.

DELIVERED THE 26^TH DAY OF FEBRUARY  2001

1. In this matter, the Appellant appeals with respect to conviction and penalty against a decision in the Magistrates Court at Townsville on 24^th October 2000 in which he was convicted of:-

1. (a)
   two charges of serious assault which were dealt with summarily. The offences are indictable.
2. (b)
   One offence of insulting words pursuant to s. 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931
3. (c)
   Publishing insulting words pursuant to s. 7A(1)(c)  of the Vagrants, Gaming and Other Offences Act 1931
4. (d)
   Two counts of obstructing police pursuant to s. 120 of the Police Powers and Responsibilities Act 1997.

2. The convictions relate to a series of offences within a short time frame on the 26^th March, 2000.

3. The Respondent submits that as to the indictable offences the appeal is incompetent having regard to s. 222(1)(A) of the Justices Act 1886 as amended in so far as the matters relate to conviction. In this context the Appellant argued the section has no application since his conviction by a Stipendiary Magistrate. The definition of justices within the Act specifically deals with the last mentioned issue.

4. S. 222(1)(a) restrains an aggrieved complainant from appealing to this Court against a conviction for an indictable offence. The appeal with respect to the serious assault charges are competent.

5. The facts of the matter are largely not in dispute. The arresting police officer Power approached the Appellant in the Townsville Flinders Mall and asked him for a leaflet. The Appellant was distributing leaflets at material times. The Appellant refused to provide the police officer with a leaflet. The police officer, Constable Power, said that he asked the Appellant to show him a pamphlet to which the Appellant replied, “No, you know what’s in it". After this point there is some conflict in the evidence. The Police Officer says that he then told the Appellant to stop handing out the pamphlets or he would be arrested. He says he then took out his notebook and a Notice to Appear form from his pocket which he was going to write out for the Defendant. He says he was then pushed in the chest and the Appellant then said, “This is Constable Brendan Power, a corrupt police officer". The police officer says the Appellant was then arrested. After the arrest it is common ground that the Appellant pushed the police officer, making statements in such a way that they may be heard by the crowd that had assembled to the effect that the police officer was not prepared to arrest him for assault because he did not want to put the Appellant before a judge and jury. The factual evidence in relation to the publishing offence, the serious assaults, and obstruction charges are not in issue. The police officer said he explained to a lady (a Mrs Fretwell) why the Appellant was arrested. Mrs Fretwell was called by the Defendant to give evidence at the trial.

6. On perusal of the video, the material shows the Appellant handing out leaflets to persons prepared to take them in the Townsville Mall. It does not show the arrival of Senior Constable Power or Constable Dunstone but whilst it is common ground there was some conversation, it is not possible to detect on the video Constable Power saying anything to the Appellant or the Appellant saying anything to Constable Power.

7. The video does show Senior Constable Power taking out his police notebook and a white sheet of paper. It is plain from the Appellant’s attitude which included a belief that he was not subject to any legal sanction in handing out the leaflets that he would not, as he did not, co-operate with the police. He had a placard which read “Get to know your local corrupt type coppers; please take one,” the last part obviously relating to an invitation to take a leaflet.

8. Senior Constable Power says that he was going to write out and give the Appellant a notice to appear but after being pushed and being described by the Appellant as corrupt, the Appellant was then arrested. The Appellant does not dispute that he described Senior Constable Power as corrupt orally, but makes it plain in his evidence  that any such statement would have been made after he had been arrested. Senior Constable Power said the Appellant was arrested because of the distribution of the leaflet and because of what was said to him, when being described as corrupt.

9. The Appellant’s evidence-in-chief made no reference to the production of the notebook at any time. In cross-examination the Appellant suggested the notebook was produced to record the time of the arrest. That suggestion was denied.

10. The Appellant sought to rely on the evidence of Mrs Fretwell identified in the video. She had before the arrest seen the Appellant handing out pamphlets. The video shows she had at least potential customers at the table in close proximity to the police officers and the Appellant. She had goods for sale at material times. She says she recalls one police officer coming up the Appellant. She said she thinks she heard the police officer ask for a pamphlet and the Appellant refusing. She says she heard the police officer say he was arresting the Appellant. She then said she heard the Appellant inform her that he was under arrest. Her evidence was confused in terms of timing of events. She said initially she asked the police officer “what for” after hearing him arrest the Appellant, later she said this was after the Appellant told her he was under arrest. Later she said, “I remember you yelling out the policeman’s name --- I think his name is Brendan Powers, I think his name was and about police corruption. I think you was then yelling “I’m under arrest” and it was just too --- there were people everywhere and it just got chaotic---“. Later in cross-examination she indicated she saw the Appellant push the police officer and then yelling about being arrested. She had no recollection of the police officer taking out his notebook or a piece of paper. She said she thought the police officer replied “insulting language” in response to her question of him as to why the Appellant was arrested. The Appellant’s evidence is also that the words “insulting language” were used.

11. The content of the leaflet was known to Snr Constable Powers before the arrest. The leaflet included reference to police officers as “local corrupt type coppers” and “slimy lying bastards”. It specifically named Snr Constable Powers and some other police officers. Nothing in a decision by Mr. Verra S.M. where a charge against the Appellant was dismissed and Snr Constable Powers had given evidence against the Appellant justifies a suggestion Snr Constable Powers was found to be corrupt or suspected of being corrupt. The decision was in any event given long after the Appellant’s arrest on this matter. I do not think the decision is of any assistance to either party in this appeal.

12. There is no doubt in my mind both the alleged oral and some content of the leaflet should be regarded as “insulting” within the meaning of the law.

13. Since the definition is not subjective there is no need to consider the Defendant’s motivation or beliefs with regard to his legal entitlements. The fact the Appellant demonstrates antipathy towards certain police and is resistant to any regulatory discipline in the relevant context, and clearly invited prosecution by conduct in the belief and express wish he be dealt by a Judge and jury are not matters adverse to the Appellant when the appeal grounds as to conviction are considered.

14. The Appellant contends his arrest was unlawful. As to the Appellant’s alleged oral description of Snr Constable Powers as corrupt immediately antecedent to the arrest the Respondent relies on the evidence of that police officer, supported by the production of the notebook and sheet of paper shown on the video. That feature and to a lesser extent the police officer’s statement that the arrest was for “insulting words” are consistent with the police officer’s account. As noted earlier the video does not show either the police officer speaking to the Appellant or vice versa although it is common ground there was conversation, only the sequence of events being in issue.

15. The learned Stipendiary Magistrate resolved the conflict in evidence in the Respondent’s favour and this being so and on the uncontradicted facts, if the arrest was lawful, there can be no challenge to either of the two counts of obstruction pursuant to s. 120 of the Police Powers and Responsibilities Act, the serious assault charges, and the offences pursuant to s. 71(d) and (e) of the Vagrants Gaming and Other Offences Act.

16. The learned Stipendiary Magistrate correctly addressed the standard of proof. As noted above there was cogent objective evidence which supported the police officer’s allegation that he was orally insulted before the arrest, and that his intention was to issue a Notice to Appear before being named orally as corrupt by the Appellant. I think it is implicit in the Magistrate’s finding on this count that there must have been a resolution of the conflict in evidence in favour of the Respondent to the appropriate standard of proof. The Magistrate appears to have appropriately addressed the evidence, and no error has been demonstrated. There is therefore no appropriate basis for this court to overturn any relevant factual finding on appeal.

17. The police officer had power to arrest pursuant to s. 35(1)(a) of the Police Powers and Responsibilities Act. Soon after his arrest he heard the police officer state he was being arrested for “insulting language”. The Magistrates addressed this issue adequately in her decision and I see no reason to conclude her reasoning was in error in finding the procedures adopted amounted to a lawful arrest. It remains to be considered whether the provisions of the Vagrants Gaming and Other Offences Acts, under which the Appellant was arrested are constitutionally valid. The learned Stipendiary Magistrate ruled against the Appellant in this regard concluding cases dealing with freedom of information had no bearing on the facts of this matter.

18. The Appellant submits that the relevant provisions of the Vagrants Gaming and Other Offences Act go “far beyond any legitimate aim. It takes it far beyond protecting the public integrity of the police force …. the police are entitled to no more protection under the law than any other citizen”.

19. The learned Stipendiary Magistrate said,

“The Defendant here is not so protesting against the laws and policies of this government. His campaign is a personal campaign related to particular officers of the Townsville Police whom he perceives have been involved in corrupt and criminal conduct. I do not accept that the Freedom of Speech cases are authority allowing the Defendant to distribute the subject matter of the kind with which this case deals".

20. Section 7(1)(b) of the Vagrants Gaming and Other Offences Act 1931 as amended provides:-

“7(1)   Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear

1. (a)
   sings any obscene song or ballad,
2. (b)
   writes or draws any indecent or obscene word, figure or representation,
3. (c)
   uses any profane, indecent or obscene language
4. (d)
   uses any threatening, abusive or insulting words to any person
5. (e)
   behaves in a riotous, violent, disorderly, indecent, offensive, threatening or insulting manner,

shall be liable to a penalty of $100 or to imprisonment for six months and may, in addition thereto, or in substitution therefore, be required by the court to enter into a recognisance, with or without sureties to be of good behaviour for any period not exceeding 12 months, and, in default of entering into such recognisance forthwith, may be imprisoned for any period not exceeding six months unless such recognisance is sooner entered into".

21. Section 7A.(1) provides:

 “7A(1)   Any person -

1. (a)
   who by words  capable of being read, either by sight or touch, prints any threatening, abusive or insulting words, of or concerning any person by which the reputation of that person is likely to be injured or by which the person is likely to be injured in the person’s professional trade, or by which other persons are likely to be induced to shun, or avoid or ridicule or despise the person; or
2. (b)
   …
3. (c)
   who delivers or distributes in any manner whatsoever printed matter containing any such words; or
4. (d)
   …

shall be liable to a penalty of $100 or to imprisonment for six months".

22. The insulting words were of course delivered directly to Senior constable Power and an examination of the written material indicates that five police officers, including Senior Constable Power were each described as liars by Mr Coleman. It can be seen that the relevant provisions of the Vagrants Gaming and Other Offences Act 1931 are not designed to give police officers any special privileges. The offences are constituted when insulting words, being spoken or written, concerning any person. The relevant principles of law in determining the constitutional  validity of the sections of the Vagrants Gaming and Other Offences Act 1931  from Lange v. Australian Broadcasting Corporation 1997 189 CLR 520 at 567 indicate that when it is alleged that there is an infringement of constitutional freedom two questions must be answered.

23. The first question is whether the law effectively burdens freedom of communication about government or political matters, either in its terms, operation or effect. If that question is answered in the affirmative, there is then a need to go on to consider whether the law is reasonably appropriate when adapted to serve a legitimate end, the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

24. If the second question is answered in the negative the provision can be regarded as invalid.

25. At p. 560 of the report, the High Court said that the provisions of the constitution:

“necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors".  It was held at p. 567 that the law would be regarded as valid “if reasonably appropriate and adapted to serve a legitimate end".

26. In  Levy v. Victoria 1997 189 CLR 579 at 596 it was said, “The freedom protects “political discussion in relation to all levels of government including state government".

27. I have considered and found some assistance from Coleman v. Sellars, an earlier matter which involved the Appellant being a decision of the Court of Appeal delivered on 21^st November 2000.

28. The mischief targeted by the legislation is to my mind clearly to deter individuals from insulting another person or persons. Whilst there may be some public interest in whether there is corruption in the police force, it cannot be said that there are no means available to make a complaint where misconduct in a police officer is suspected. As was pointed out in argument, the Appellant clearly had the opportunity to complain to the Criminal Justice Commission. Whilst the Appellant may consider there is a wider application the reference to Snr. Powers as a “Corrupt Police Officer” in his oral statement and written statements were specifically directed toward particular police officers. I think the Magistrate was correct in concluding that the Appellant was not “protesting against the laws and policies of this government”. She said the Appellant’s “campaign was a personal campaign related to particular officers of the Townsville Police whom he perceives have been involved in corrupt and criminal conduct.”   Nothing has been shown which persuades me the Magistrate’s assessment in this regard should be set aside. The Magistrate went on to say that she did not consider that any reliance on the truth of the publication could be seen to be justification for the Appellant’s conduct. It can be seen from the written document that the Appellant stated that he did not care who was offended, apparently being under the erroneous belief that truth per se provides a defence in a defamation proceeding. She said she did “not accept the freedom of speech cases are authority allowing the Defendant to distribute the subject matter of the kind with which this case deals”.

29. I conclude that the provisions of the Vagrants Gaming and Other Offences Act 1931 do not effectively burden the freedom of communication about government or political matters, in its terms, operation or effect. Further while it is unnecessary the second question by reference to the tests in Lange, I think the provisions are reasonably appropriate and adapted to serve a legitimate end, fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

30. As McHugh J expressed in Cunliffe v. the Commonwealth 1994 182 CLR 272 at 396:

 “A law which incidentally restricts or burdens (a constitutional right or freedom), has the consequence of regulating another subject matter will be easier to justify as being consistent with the freedom….than law that directly restricts or burdens the characteristic of (the right or freedom)".

31. In the result the appeals are dismissed.

32. Having regard to the Appellant’s prior convictions and attitude, I find no merit in the appeals with respect to the severity of sentence. The appeals with respect to severity of sentence are similarly dismissed.

33. I order the Appellant pay the Respondent’s costs of and incidental to the appeals to be assessed.