DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant Paul Reno was convicted by Mr Taylor on 24 March 2006 in the Maroochydore Magistrates Court of one offence namely:

“That on the 2^nd day of August 2004 at Nambour … (he) obstructed a police officer namely Graeme Leslie Farlow in the performance of the officers duties.”

2. [2]
   The issue on appeal focuses on the lawfulness of the police actions in undertaking a search of the appellants premises without a warrant and arresting the appellant and therefore whether it had been proved beyond a reasonable doubt that at the time of the obstruction the complainant police officer was acting in the performance of the officer’s duties. This in turn focuses on the Magistrate’s findings which lead him to the conclusion that the pre-condition to the exercise of powers under s. 77 and s. 198 of the Police Powers and Responsibilities Act 2000, namely that the police officer had a reasonable suspicion, had been satisfied.

3. [3]
   I repeat and rely on my conclusions as to the relevant law and construction of s. 77 in my judgment in Farrell v Queensland Police Service delivered today and heard at the same time as this appeal.

4. [4]
   The appellant was tried on 24 March 2006 for this offence and Mr Taylor gave extensive reasons for convicting him. He formed a favourable impression of the police officers who gave evidence and there is no challenge on appeal to those findings.

5. [5]
   Mr Taylor accepted evidence to the effect that around 3:25pm on 2 August 2004, Detective Horsnell who was working that shift with Detective Farlow received a complaint by telephone from Todd McVey that he had noticed property stolen from his business in the appellant’s premises at 8 William Street, Nambour. McVey gave evidence to the effect that he had known the appellant for some years and that he believed that he had items stolen from his shop on his premises and despite numerous threats to involve the police, the appellant continued to deny knowledge of stolen property. I infer that he told Horsnell what he told Mr Taylor and that is that on that day in the appellant’s premises on a shelf he had seen a memory card box which had been previously stolen from his shop. The memory card box had on it a distinctive sticker from which he could positively identify it as his property.

6. [6]
   He then waited at the premises and spoke to police when they arrived. The front door was open; the police officers knocked, there was no response so they walked into the premises down a hallway into a living area where they saw the appellant and his de facto partner Donna Ryan sitting watching T.V. Horsnell spoke to the appellant identifying himself and Farlow and asked to speak to him which was ignored. He then turned off the T.V. and said: “Paul I would like to interview you about some stolen property that has been located in the premises here.  I’ve received a complaint of stealing from Mr Todd McVey relating to a Playstation memory card and also a ring from his business premises.”  Again there was no response from the defendant.  Horsnell then said: “I propose to conduct an interview at the Nambour Police Station up the road if you are willing.”  The appellant said “No, I am no saying anything.”  Horsnell then said: “Are you prepared to accompany us back to the police station for this purpose” to which the appellant responded in the negative.

7. [7]
   Horsnell then informed him that he intended to conduct an emergent search of the premises, so it is at that time that he says he had a reasonable suspicion about the two matters referred to in s. 77(1)(a) and (b) of the Police Powers and Responsibilities Act.  He then informed the appellant that he was under arrest for stealing.  The appellant told Horsnell that he could not search the rpemises, that he needed a warrant and that he was not going anyway.  Farlow then placed his hand on the appellant’s left shoulder to arrest him and the appellant then pulled away and struggled and had to be restrained.  It is this action that constituted the allegation of obstruct, and there is no challenge on appeal to Mr Taylor’s conclusions that the appellant had obstructed Farlow.

8. [8]
   The appellant was then placed in the rear seat of the police vehicle and thereafter the premises were searched in the presence of Ms Ryan and numerous items were located and seized.

9. [9]
   There is no basis for holding that the s. 77 power is to be used in exceptional circumstances as Mr Courtney submits. It is one of a number of powers given to police to carry out their duties, and the power can only be exercised upon the police officer forming a reasonable suspicion as to both of the matters set out in s. 77(1)(a) and (b). The section does not say that the power is to be exercised only in exceptional circumstances and it would be contrary to principles of statutory construction to read it in that way.

10. [10]
    I do not agree either that paragraph 13 of the judgment of Mullins J in R v Koning [2001] QSC 131 is authority for the proposition advanced by Mr Courtney at paragraph 15 of his written submission.  Her Honour was considering an admissibility argument concerning evidence obtained as a result of a search conducted pursuant to s. 31 of the now repealed Police Powers and Responsibilities Act 1997 of which s. 77 is the successor.  The terminology of both provisions is relevantly similar but her Honour’s decision is simply based on the peculiar facts of that case which differ significantly from the facts here.

11. [11]
    I note that Mr Courtney does not appear to take up an argument advanced by Mr Nagel at trial to the effect that s. 77(1)(b) requires the suspicion to attach to a particular suspect i.e. in this case the appellant, an argument properly rejected by Mr Taylor. To adopt the argument would be to place a condition upon the exercise of the power which is not stated anywhere in s. 77(1).

12. [12]
    Mr Taylor properly and objectively reviewed the police officer’s exercise of power in the light of the evidence as to the police officer’s state of knowledge at the time of forming the suspicion. The police officer was entitled to consider the information he had that there was actual stolen property in the premises identified as such to him by the owner of the property who had seen some of the property in the premises and who knew the appellant personally. He was entitled to take into account that the items were all easily transportable and capable of concealment which coupled with the information he had made it reasonable for him to suspect that such property may (that is a mere possibility) be concealed or destroyed unless an immediate search was undertaken.

13. [13]
    The appellant also challenges Mr Taylor’s findings that his arrest for stealing was not lawful because of s. 198 of the Act was not satisfied. Mr Courtney submits that on the evidence none of the pre-conditions set out in s. 198(1) are satisfied. It is clear however from Mr Taylor’s reasons that he found that the arrest was lawful pursuant to s. 198(2) which makes lawful the arrest of a person without warrant “the police reasonably suspects has committed … an indictable offence.” Mr Taylor was entitled to so conclude in the light of the acceptance of the evidence of the two police officers.

14. [14]
    The appeal is dismissed.