Madsen v Queensland Police Service
[2006] QDC 505
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- Madsen v Queensland Police Service[2006] QDC 505
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Madsen v Queensland Police Service[2006] QDC 505
Madsen v Queensland Police Service[2006] QDC 505
[2006] QDC 505
DISTRICT COURT | No D136 of 2006 |
APPELLATE JURISDICTION
JUDGE McGILL SC
HELENA MARIA MADSEN
Appellant
and
QUEENSLAND POLICE SERVICE | Respondent |
TOWNSVILLE
DATE 15/08/2006
JUDGMENT
HIS HONOUR: The appellant was tried in the Magistrates Court at Ingham on the 16th of March 2006 on two counts. One count alleged on the 8th of August 2005 at Ingham she had committed a public nuisance offence, and one count alleged that on the 9th of August 2005 at Ingham she had obstructed a police officer in the performance of the officer's duty.
At the conclusion of the trial the Magistrate found the appellant guilty of both counts. In relation to the public nuisance offence, she was fined $100. In relation to the offence of obstructing police, she was fined $150. In each case no conviction was recorded. She was given in each case six months to pay the fine; in default of payment, two days' imprisonment.
On the 5th of April 2006, she filed a notice of appeal to this Court, apparently against conviction and sentence, although the notice of appeal refers only to the public nuisance offence. The appellant filed with the notice of appeal a document which is not in the usual form for an outline of argument, but which, I take it, sets out some arguments in relation to the matter. It is alleged there was no evidence of public nuisance produced, no witnesses for the female officer from Centrelink was produced. It further goes on to allege that there was discrimination against the appellant under Federal legislation.
There were various other matters contained in the document which do not appear to me to touch on the matters in issue in the appeal.
Also filed by the appellant was, in effect, a reference from a Mr Cavanagh, which appears to be really in the nature of fresh evidence and it does not appear that this reference can be brought within the fresh evidence rules.
The Magistrate at the conclusion of the trial noted that at the trial he had heard the evidence of two police officers and the evidence of a witness who was working in the Centrelink office at Ingham. He records that that witness had given evidence that at about 9 a.m. on the 8th of August the appellant had entered the front doors of the office. She gave a Nazi style salute, came forward to the front counter where the witness was and was at the front counter for about 20 minutes, in the course of which she spoke in a loud voice about various matters, including some of which were in a vulgar nature and referred to her being raped, her daughter having been raped and gave a reference to oral sex. There was then a further Nazi style salute, or perhaps two Nazi style salutes, and the police were called.
The police did not give evidence specifically of having seen anything at the Centrelink office, but their evidence was directed to the charge of obstructing police.
The Magistrate found, in relation to the public nuisance charge, that the appellant on entering the building performed the Nazi salute on three occasions while she was in the building, and that spoke in a loud voice so that everyone could hear sensitive matters which the witness from Centrelink had referred to as being offensive or vulgar.
He also accepted that the charge of obstructing police was proved on the basis that the appellant had failed to provide some particulars requested from her by the police. This was in the course of a conversation with the appellant which had been tape-recorded. In those circumstances, she was found guilty of that charge as well.
The offence of committing a public nuisance that the appellant was charged with comes under section 6 of the Summary Offences Act 2005. Relevantly, a person commits a public nuisance if the person behaves in a disorderly way or an offensive way or a threatening way or a violent way. It was not suggested that the appellant's behaviour was threatening or violent, but it was suggested that it was disorderly or offensive. In relation to that, it was necessary to have regard to the whole of the behaviour of the appellant in the Centrelink office.
The Magistrate noted, correctly, that there were two limbs to the section. The first involved behaviour in a disorderly way or an offensive way, relevantly, and the second required the person's behaviour interferes or is likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public. Given that the relevant public place was the interior of the Centrelink office, I think that the relevant part of that second limb is enjoyment of a public place by a member of the public.
There was evidence from the Centrelink officer that there were a number of other people waiting to be attended in the Centrelink office during the relevant time and that there were other Centrelink officers present in the office at the relevant time. All of these are members of the public for the purposes of the section and it was relevant for the Magistrate to take them into account and it appears the Magistrate did take them into account in assessing whether the second limb had been satisfied.
The Magistrate found that the behaviour of the appellant involved behaviour in an offensive manner. The Magistrate had the benefit of a decision of Senior Judge Skoien in Ashton v. Green (2006) QDC 8, where there was some discussion in relation to an analogous provision which then appeared in section 7AA of the Vagrants Gaming and Other Offences Act 1931. I would respectfully agree with his Honour's analysis and it is in my opinion consistent with the approach adopted by the Magistrate in the present case.
There is nothing in the Magistrate's reasons to suggest that there was any error of law committed in the application of the provisions of section 6 by the Magistrate on that occasion, nor has any error of law been identified by the appellant in the appellant's submissions. I should say that there was a finding that, in effect, the enjoyment of the public place by the other customers would have been interfered with by the appellant and on that basis he found her guilty of the offence.
In my opinion, the conduct alleged was conduct which was capable of falling within section 6 of the Summary Offences Act. It was found in the particular circumstances of this matter to have fallen within that provision by the Magistrate. There is nothing in the Magistrate's reasons to suggest any error of law.
The appellant in her oral submissions today was unable to identify any error of law in the approach of the Magistrate, or at least did not do so. Indeed, it seemed to me, that her oral submissions did not at any point touch on the particular issues which it was relevant for the Magistrate to consider for the purposes of the hearing, or the relevant issues for me to consider for the purposes of the appeal.
The Magistrate noted that although the appellant had given evidence before him, her evidence there did not touch on the matters which were the subject of the charges before him. The Magistrate had evidence of what happened at the Centrelink office from the witness who worked there and the fact that there were not other witnesses was really of no consequence. That evidence was available to be accepted and the Magistrate was entitled to act on that evidence.
In the circumstances, there was evidence available to make out the charge and the Magistrate did not, it seems to me, commit any error of law in concluding that the appellant was guilty of the offence. The penalty imposed was a moderate one and a long time has been allowed to pay the penalty. Indeed, the same applies to both offences. Nothing has been said to indicate that the penalty would be excessive or that there was any error of law committed in fixing the penalty. There is therefore no basis upon which I could interfere with the decision of the Magistrate and the appeal is dismissed.