Couchy v Guthrie[2005] QDC 350

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the decision of the learned Magistrate who on 5 July 2001 convicted the Appellant of the offence: -

“That on the 26 day of April 2001 at Brisbane in the State of Queensland one Lisa Jane Couchy so near to a public place namely Gibbon Street Brisbane that any person therein could hear or view behaved in a disorderly manner”

2. [2]
   The grounds of appeal are: -

1. The presiding Magistrate erred in finding that the Appellant had a case to answer; and

2. the conviction is unsafe and unsatisfactory: -

PARTICULARS:

1. (a)
   the magistrate erred in law in his interpretation of s 7(1)(e) of The Vagrants Gaming and Other Offences Act 1931 (the Act);

2. (b)
   the magistrate erred in his application of section 101 of the Evidence Act 1977 in respect of the evidence of the prosecution witness Michael Guthrie; and

3. (c)
   the admissible evidence cannot maintain a conviction;

3. [3]
   The Appellant’s outline of submissions in lieu of paragraphs (b) and (c) of the particulars in the notice of appeal relied upon the following particulars: -

2. (b)
   the Magistrate erred in finding that the conduct of the Appellant amounted to disorderly conduct;

3. (c)
   there was no evidence on which it was reasonably open for the Magistrate to conclude that the volume of the appellant’s voice, at the time of the particular conduct relied on by the complainant as constituting the offence, was such that it could be heard from a public place, namely Gibbon Street Woolloongabba

4. [4]
   Section 7(1)(e) of the Act 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 –

…

5. (e)
    behaves in a … disorderly manner shall be liable to a penalty.

5. [5]
   The Respondent was the only witness called by the prosecution before the learned Magistrate.

6. [6]
   His evidence was that approximately 10 past 10 on the morning of 26 April 2001 he and Constable Richter were called to attend number 11 Gibbon Street Woolloongabba. When he attended this address he took up with a male person with whom he had a conversation. During the conversation he could hear a female voice yelling. This appeared to be coming from the area beneath the boarding house. As a result of this and the conversation he had with the male person he subsequently attended the garage area beneath the boarding house. He said this area was open to, and in full view of, Gibbon Street. In this area he saw a male and female person seated at a table. The female person was the Appellant. He heard the female person yelling comments towards the male person. These comments included obscenities. He heard her yelling words to the effect of, “Hey, I’ll fucking kill that dog cunt. Hey”. He also saw the Appellant punch the table with both her fists. He overheard Constable Richter obtaining the Appellant’s identification particulars. During that conversation he heard the Appellant yelling threats and obscenities of the similar nature to what he already outlined in his evidence. He saw the Appellant continue to punch the table; she also began waving her arms in the air in a violent manner. At this time he said to the Appellant, “Don’t swear. Keep your voice down. There is no need to shout”. His evidence was that the Appellant continued in the same manner. He walked back out into Gibbon Street to perform some radio checks on both persons. Whilst he was in Gibbon Street he could clearly hear the Appellant yelling words to the effect of, “He’s just a fucking cunt. A dog. I will fucking kill him”. At the same time he could clearly see the appellant continuing to punch the table and also waving her arms in the air violently. This time he could see that there was numerous people, male, female, including children in Gibbon Street who could quite easily have seen the Appellant’s behaviour or observed it. He said that he saw one group of people walking down the street, appeared to be looking toward the Appellant and they appeared visibly concerned and upset. He said he subsequently approached the Appellant and said to her “Calm down. Keep your voice down or I’ll arrest you, okay?”. He then heard the Appellant reply words to the effect of “I’m not talking to you cunts. You can go and get fucked”. He said that the Appellant continued punching the table and waving her arms violently. She then continued to yell obscenities of a similar nature towards himself and Constable Richter. He then said to the Appellant “You are under arrest for behaving in a disorderly manner”.

7. [7]
   The alleged behaviour of the Appellant after the Respondent returned from doing the radio checks, is the behaviour relied upon by the Prosecution in support of the charge, these being the particulars given at the commencement of the hearing before the learned Magistrate.

8. [8]
   The Respondent also gave evidence that the garage area beneath the boarding house was between 20 to 30 metres from the street. He could see clearly the Appellant and the male person from where he was standing in Gibbon Street performing the radio checks.

9. [9]
   As far as the words used by the Appellant were concerned the Respondent said it was kind of constant. He said there was still pedestrian traffic in the street. He described the pedestrians as, male, females and including children with the youngest probably between 10 and 13.

10. [10]
    When cross-examined the Respondent agreed that in his statement signed by him he did not mention that the Appellant was waving her arms around. He said he neglected to put that in his statement.

11. [11]
    When invited to suggest what part of the Appellant’s behaviour was disorderly behaviour to warrant a criminal charge he said “Well, the fact that she’s using obscene language, she’s yelling obscenities, threats, she’s waving her arms in the air with her fists clenched in a violent manner and punching the tables, and also the fact that he having been in the street himself, he saw pedestrians walking past and he saw a number of pedestrians who appeared to be concerned and distressed by the behaviour of the Appellant.

12. [12]
    The Respondent agreed in cross examination that he had not asked the Appellant for an explanation for why she may be expressing herself in the manner described by the Respondent.

13. [13]
    Although the Appellant appeals against the learned Magistrate’s ruling that there was a case to answer, the learned Magistrate’s ruling to that effect was an interlocutory ruling. As such it cannot be the subject of an appeal under section 222 of the Justices Act 1886 (Schneider v Curtis (1967) QdR 300 upheld in Owen v Cannavan (unreported Queensland Court of Appeal No. 199 of 1994, 4 August 1995)

14. [14]
    The Appellant elected to give no evidence or call any evidence.

15. [15]
    The learned Magistrate found the Respondent to have impressed him as a truthful witness. In my opinion there was no impediment to the learned Magistrate reaching that conclusion. It was therefore open to the learned Magistrate to accept his evidence that the Appellant was waving her arms about. In my opinion the learned Magistrate did not err in his application of section 101 of the Evidence Act.

16. [16]
    On the hearing of the appeal the Appellant cited Coleman v Power (2004) 209 ALR 182.  The Appellant submitted, based on Coleman v Power, that in order to secure a conviction under s 7(1)(e) of the Act it was not sufficient for the complainant to prove that the Appellant’s conduct fell within the literal meaning of that provision.  An additional element was required.  It had to be shown, in the words of Gleeson CJ that the conduct was “Contrary to contemporary standards of public good order”.  However, it was accepted by Counsel for the Appellant that with respect to disorderly conduct the learned Magistrate instructed himself on the correct test supported by the New Zealand Court of Appeal in Melser v Police (1967) NZLR 437 where in particular Turner J. at page 444 said: -

“Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more – it must, in my opinion, tend to annoy or insult such persons as are faced with it – and sufficiently deeply or seriously to warrant the interference of the criminal law”.

17. [17]
    The reasons of the learned Magistrate show he did instruct himself the law was as expressed by Turner J in Melser v Police which has been cited with approval in Dillon v Byrne (1972) 66 Queensland Justice of the Peace Report 112 at 133.

18. [18]
    Therefore, in my opinion the learned Magistrate did not err in his interpretation of s 7(1)(e) of the Act.

19. [19]
    However, the Appellant contends the learned Magistrate erred in the application of the law as expressed by Turner J in Melser v Police to the facts in this matter.

20. [20]
    This appeal is by way of rehearing on the evidence given in the proceeding before the learned Magistrate (s 223(1) Justices Act).  I take that to require me to determine whether there is some error demonstrated on the part of the learned Magistrate rather than make my own decision upon the evidence before the learned Magistrate (Aldrich v Ross (2001) 2 QdR 235, 257).

21. [21]
    In my opinion the proper test to be applied on the hearing of this appeal is whether no reasonable magistrate could have reached the conclusion which the learned Magistrate did or whether there was no evidence to support that conclusion. Although based upon s 673 of the Criminal Code, this was the approach in R v Robertson (1980) 2 A Crim R. 369, 373 referred to in Bailey v Costin, CA No 261 of 1993, 18 October 1993).

22. [22]
    In my opinion it was open to the learned Magistrate to conclude, as he did, upon the whole of the evidence as the Appellant’s initial aggressive and obscene and violent language and actions were seen and heard from Gibbon Street by the Respondent, upon the Respondent’s return to the garage area as the Appellant became “more aggressive” and continued to wave her arms around and hit the table and yell obscenities, such conduct could be seen and heard from Gibbon Street.

23. [23]
    Further, in my opinion it was open to the learned Magistrate to conclude as a question of fact and degree that the Appellant’s conduct was not only sufficiently ill-mannered or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, there was also something more in that it tended to annoy or insult such persons as were faced with it sufficiently deeply or seriously to warrant the interference of the criminal law.

24. [24]
    Therefore, in my opinion it was open to the learned Magistrate to conclude on the whole of the evidence there was a case to answer and whatever the initial reason for the conduct of the Appellant all the elements of the charge had been proven beyond reasonable doubt and to find the Appellant guilty of the charge.

25. [25]
    I therefore dismiss the appeal.