Dowling v Robinson[2005] QDC 171

[2005] QDC 171

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ROBIN QC

No 158 of 2005

BRISBANE

DATE 06/06/2005

JUDGMENT

HIS HONOUR: Mr Dowling appeals against his conviction by a Magistrate after a hearing on 17 November last year at Petrie Magistrates Court of an offence against section 7AA of the Vagrants, Gaming and Other Offences Act (VAG Act). The penalty imposed was a fine of $200, in default eight days' imprisonment, a conviction being recorded. Mr Dowling was allowed seven days to pay, but declared an intention not to "be paying any fines for serving my country". The sentence was handed down on 23 December 2004, the date on which the Magistrate Mr Halliday reserved his decision, and that passage quoted indicates that Mr Dowling presented as pursuing points of principle.

From any point of view they are important points of principle that he's pursuing. They concern chiefly the legality and morality of the war which the "coalition of the willing", including Australia, has been committed to in Iraq, but extends rather more widely.

The section under which the prosecution was brought came into effect on 1 April 2004. The charge against Mr Dowling was that on the 23rd day of September 2004 at Dayboro in the Magistrates Courts District of Caboolture he committed apublic nuisance offence. "Public nuisance offence" is definedin section 7AA(2) as committed if a person "behaves in an offensive way and the person's behaviour interferes or is likely to interfere with the peaceful enjoyment of a public place by a member of the public." The place was a community hall at Day boro and the occasion was a "Meet the Candidates" evening organised by the local progress association inrelation to the 2004 Federal election. Apparently about 50 interested citizens attended. Four of the six candidates attended, including Mr Peter Dutton, the Liberal candidate.

He had come under the attention of Mr Dowling and some like-minded people who are associated in a group called"Citizens Against Terrorism". The material before the Magistrate indicates that Mr Dowling at least had been pursuing his opposition to war in Iraq since before the war commenced, by communications with Mr Dutton in particular. Mr Dowling went to the meeting armed with a document headed"WARRANT" for the arrest of Mr Dutton which gave particulars, most of which are given by reference to the Iraq war, although the word Iraq is not mentioned. Certain of the "Nurember gprinciples" are cited, like wise the Australian Anti-Personnel Mines Convention Act 1998 and the Geneva Convention. The"warrant" also alludes to charges to do with conspiracy and the detention of Australian citizens at Guantanamo Bay.

The document is dated the date of the meeting and signed by Mr Dowling him self but in the name of the group. He was armed with this document when he laid hands on Mr Dutton at or in the minutes before the scheduled 7.30 p.m. commencement of the Meet the Candidates function. The attempted arrest and the touching of Mr Dutton occurred both before and after warnings by the chair man of the meeting, Mr Bradley, who then requested the assistance of the respondent, a police officer, who was at the meeting. That assistance was forth coming. The respondent ejected Mr Dowling from the meeting, took him to the police station where the "warrant" was produced. It seems there wasa faction at the meeting which supported Mr Dowling's activities there and others who obtained some amusement from observing them. I think it's obvious that if a stop hadn'tbeen put to them, the meeting would have been disrupted andcould not effectively have taken place.

The complaints against the Magistrate include that he appeared to be anxious to complete the hearing quickly and might nothave been receptive to Mr Dowling's presenting or running thecase as fully as he would have liked to. Unfortunately the statement attributed to the Magistrate and said to indicate that from before the outset he was concentrating on the clock,so to speak, does not appear in the transcript. Mr Dowlinghas explained that the Magistrate made those comments beforethe parties went outside to discuss matters - at his suggestion. It wasn't until later in the day that the matter came on.

Having read the transcript or nearly all of it, I find no indication at all there that the Magistrate cut Mr Dow ling short. He responded at the end to the Magistrate's inquiry that he had no further witnesses to call. He had given evidence himself and called Ms Rampa.

I don't think there's anything in the complaint that the Magistrate in proclaiming that "the Court is always fair" hadacted improperly or revealed any bias or anything of that kind. I agree with the respondent's submissions that the Magistrate was simply giving a general description of the way in which courts are expected to act. In this case I am in no doubt that the Magistrate did act in that way.

The legislation under which the charge was brought is relatively new and some what experimental. Subsection (6)provides that "as soon as practicable after 18 months afterthe commencement of this section the Crime and Misconduct Commission must review the use of this section." The Commission is required to consult with the Minister and toproduce a report for the Legislative Assembly.

It will be noted that the new offence can occur only in a public place. The definition of public place which used to bein the Act has unfortunately become some what ambulatory in thesense of being relocated. There are definitions in otherlegislation such as the Criminal Code and the Police Powersand Responsibilities Act which is the principal Act being amended in the 2003 Act which established section 7AA and which is number 2 of 2003. It hasn't been contended that the hall was not a public place on the occasion in question. I have consulted the explanatory notes which accompanied the relevant Bill in the 2003 statutes at page 2657. Section 7 of the VAG Act is gone and replaced by part 2A. Quality of community use of public places. The object of the new part 2A is ensuring "that members of the public may lawfully use and pass through public places without interference from unlawful acts of nuisance committed by others".

Examples are ventured in the explanatory notes of what might and might not be a public nuisance. Interestingly, one may call another person a slut in the public bar of a hotel with more impunity than in a shopping centre or park. Likewise, using obscene language in a mall or street is seen as more problematic than doing so in the public bar of a hotel in the course of a conversation.

To the extent that the explanatory notes are helpful at all, the next illustration is of interest; it opines that aperson who disrupts a church service may commit the newoffence. This seems to show that it can be committed insideplaces like halls in the view of the author of the explanatory notes.

It hasn't been suggested the hall wasn't a public place, as I have said. I think that it was one. I also think that the Magistrate's decision that Mr Dowling behaved in an offensive or disorderly way there with the consequences section 7AA(2) envisages is correct. The case was about was the justification asserted by Mr Dowling for his actions and whether that was a defence. The Magistrate accepted, and I would think correctly, that if the same actions had been carried out by a police officer with similar consequences from the point of view of disrupting the meeting, the police officer, if complying with relevant statutory requirements, would have a good defence. Mr Dowling lacks the protection which the police officer might have. It should not be thought that I am suggesting that any police officer who purported to effect an arrest on the basis relied on by Mr Dowling would be acting lawfully.

The offending which he attributes to Mr Dutton may be summarised as "war crimes". I made it clear to Mr Dowling that the Court accepts that his view that war crimes had been committed by Mr Dutton is genuinely held by him and indeed byothers, perhaps. That does not justify the citizen's arrest which he purported to effect.

Denied assistance by the participants at the trial in relation to the legal issues that arose, the Magistrate carried out his own research which appears to me to have been thorough and produced correct reasoning. Once again, in the appeal there has been no argument about that, although understandably Mr Hungerford-Symes for the respondent has adopted the Magistrate's analysis.

The first justification for the arrest might be thought to be the warrant mentioned above. The issuing authority is said tobe the citizens' group mentioned and clearly it has noauthority which a Court in this country would recognise toauthorise interference with any citizen's liberties. The warrant may be set aside.

The Magistrate next looked at a citizen's arrest at common law, citing sources such as Halsbury (4th) Vol 11: 107-112 and Glanville Williams' article, "Arrest for Felony at Common Law", 1954 Criminal Law Review 400 at 420. In making reference to those and other sources, including the case of Watters v W H Smith & Son Ltd [1914] 1 KB 595, he said that:

"Assuming that the common law citizen's power of arrest extends to alleged offences occurring outside the State of Queensland and of the Common wealth of Australia, I am not satisfied that there has been any evidence adduced on behalf of the defendant that any such felony, in particular any war crime or offence against humanity, was, in fact, committed by Mr Dutton and that he, the defendant, had any reasonable and probable cause for suspecting that Mr Dutton had personally committed any such alleged offence."

In that passage, which adequately states the text indicated in the sources used, is the crux of the Magistrate's reasoning which runs through the whole of his judgment. I think Mr Dowling has misunderstood the Magistrate's approach, taking it as one of denial that the sad events in Iraq in recent times, or then recent times, had been occurring. It seems to me that what the Magistrate is saying is that Mr Dowling had not persuaded him that he had any "reasonable" belief orsuspicion. The reference to reasonableness shows that it is objective considerations that are of concern and not the more subjective ones personal to Mr Dowling.

As I understand it, and Mr Dowling has confirmed this today,at the time of the meeting Mr Dutton was a back bench member ofthe governing coalition in Canberra. He is now a junior minister, Mr Dowling's interpretation being that this is a reward for his active support of what Australia has done in relation to Iraq.

Part of the material relied on before the Magistrate, Exhibit 6, was a letter of Slater & Gordon Lawyers to the Prime Minister dated 20 March 2003 and written "on behalf of 41 affiliates of the Victorian Peace Network". That letter advised the Prime Minister:

"You and your senior ministers can be held personally and criminally responsible for complicity in crimes committed during a military campaign."

If Mr Dowling read that letter, it appears to me he would have known it contained no support for his argument that Mr Duttonas a back bencher, however supportive he might have been of thegovernment's policies, might come under personal and criminal responsibility. It is an extension of the solicitors' view to rope him in.

The next bases for a citizen's arrest canvassed by the Magistrate came from the Commonwealth Crimes Act 1914 in section 3Z:

"A person who is not a constable may, without warrant, arrest another person if he or she believes on reasonable grounds that the other person is committing or has just committed an indictable offence."

The Magistrate emphasised the second "is" and "has just", also noted section 268:

"A person commits an offence if the perpetrator causes the death of one or more persons and the person or persons are protected under one or more of the Geneva Conventions or under Protocol 1 to the Geneva Convention."

The difficulty which Mr Dowling faced was in convincing the Magistrate, not that he believed certain things, but that he believed them "on reasonable grounds". Exactly the same considerations arise under the Criminal Code of Queensland. Section 546 deals with arrest without warrant and section 260 with preventing a breach of the peace. It was not really suggested that the State provisions were applicable, but they do have in them a similar idea to section 32 which is somenotion of recentness in the relevant offence.

Mr Dowling has failed to persuade me any more than he could persuade the Magistrate that, applying the objective test, which I think is appropriate, there was a reasonable basis for regarding Mr Dutton as guilty of war crimes. The Court is notone of public opinion or of morality. There is no necessity here to venture into the difficult questions that arise aboutthe implication of principles of international law into the domestic law of this country.

From the point of view of many the analysis of what happened would be that Mr Dowling decided to take advantage of the occasion to make a gesture which might and did attract publicity for his cause. Whether or not he genuinely believed what he did was justified is, I think, only one of the relevant matters. He fails the reasonableness test. Most, I think, would be happy with an outcome in this proceeding to that effect. It was a mischievous action todisrupt a public meeting which had been promoted with some trouble for a very commendable public purpose, which is apparently in line with something of a tradition in Dayboro. It has not been shown there was the slightest necessity for Mr Dowling to choose this occasion for his gesture. He really should regard himself as fortunate that he is charged with the summary matter in question and not with something more serious that is potentially open, such as assault under the Criminal Code. It may well be that Mr Dutton would not have wished to pursue that, even if he had been offered the opportunity. About that I know nothing.

I should record that he has been in touch with the registry of the Court last Friday in relation to Mr Dowling's interest in having him called as a witness in the appeal - replicating aninterest which had been expressed at the trial. Mr Dutton did not attend the Court but informed the Court that he was contactable by phone throughout today and could have got hereon 45 minutes' notice if required.

Mr Dowling does have another witness here who has recently been to Iraq and is willing to give evidence regarding conditions there to the effect that the statements that Mr Dutton might have made about conditions are "lies", to use Mr Dowling's term.

Section 223(2) of the Justices Act requires special circumstances before additional evidence is permitted to be produced on appeal.

The test as set out in that section or as expounded in the case of Clarke v. Japan Machines (Australia) Pty Ltd [1982]1 Queensland Reports 404 has not been satisfied in any event. As I have attempted to make clear to Mr Dowling, the Courtdoes accept that there would be millions around the world, maybe even in Australia, who take the same view of events inIraq as does he. It was unnecessary to have the Court proceed (given that acceptance) to add further evidence to the same effect or to trouble Mr Dutton on the off-chance that admissions of some kind might have been extracted from him. The consequence of all this is the appeal should be dismissed and will be.

Does that cover everything?

MR HUNGERFORD-SYMES:  Is your Honour minded to hear submissions with regard to costs?

HIS HONOUR:  That it should be dismissed with costs?

MR HUNGERFORD-SYMES:  The respondent submits - I am in your Honour's hands obviously but the respondent would submit that costs of the amount of $1,000 would be applicable in this situation in light of the fact that Mr Dowling's actions aretant amount to an abuse of process.

MR HUNGERFORD-SYMES:  Under the Justices Regulation 2004 it's all under the scale, on my understanding. It's a maximum of $1800 and so, yes, it's no longer taxed. It's rather an order from yourself - from the Court.

HIS HONOUR:  Are you an in-house advocate?

MR HUNGERFORD-SYMES:  Indeed, yes, I am with the Director's office.

HIS HONOUR:  If I order costs, it's just a contribution to the Director's budget.

MR HUNGERFORD-SYMES:  No, it goes to the Queensland Police Service. The Director acts on behalf of the Queensland Police Service. It goes to the Queensland Police Service.

HIS HONOUR:  Does the Director send a bill to the police service?  Who will get the money?

MR HUNGERFORD-SYMES:  The Queensland Police Service. Mr Robinson is the respondent.  We obviously acted on behalf of him and he is of the Queensland Police Service so technically the Queensland Police Service is our client.

HIS HONOUR:  You are saying it should be $1,000.

MR HUNGERFORD-SYMES:  Yes.  I don't ask for the maximum.  As I said, it's 50 per cent - plus or minus 50 per cent, taking it up to $1,000. One, it's tantamount to an abuse of process byMr Dowling, plus, with all due respect, he seems to haveattempted to try to turn the Court into his own personal soap box. My understanding is the media presence here was at his direction but I am in your Honour's hands.

HIS HONOUR:  What do you want to say about that, Mr Dowling?

APPELLANT:  Obviously I don't think I should have to pay any costs. I think perhaps the Court could pay me for my time andservice to the community. It would probably be a much better option.

HIS HONOUR:  I think Mr Hungerford-Symes is correct.  You really have taken this opportunity to use the Court as a forumto restate your views rather than focus on the legal issues that were involved. I will go halfway.

Appeal dismissed.  Appellant ordered to pay respondent's costs which I will fix at $500.