Rowe v Kemper[2007] QDC 187

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was charged before the learned Magistrate with committing two offences on 9 July 2006. Firstly, without lawful excuse failing to obey a direction to leave the Queen Street Mall immediately for eight hours. Secondly, obstructing a police officer, Constable Kemper, in the performance of his duties. The appellant pleaded not guilty to the charges and was found guilty by the learned Magistrate.

2. [2]
   The evidence before the learned Magistrate was that the appellant was asked on two occasions by a cleaner to leave the Queen Street Mall toilets so that the toilets could be cleaned. As the appellant had not left the toilets the cleaner asked the police for assistance.

3. [3]
   Four police officers and two recruits came to the toilets. The appellant was inside the toilets. He was escorted outside the toilets by the police officers.

4. [4]
   Constable Kemper gave the appellant the direction to leave the Mall immediately for eight hours because he was concerned the appellant’s behaviour could cause a fight or someone might do violence upon the appellant. The appellant, according to Constable Kemper, failed to comply with this direction. Constable Kemper arrested the appellant. A struggle took place between some of the police officers, including Constable Kemper and the appellant. The appellant was subdued and placed in a police van.

5. [5]
   The cleaner, Mr Doman, gave evidence, as did Constables Kemper, Robinson and Boysen. The appellant did not give evidence or call evidence.

6. [6]
   The appellant’s grounds of appeal are:

3. (1)
   by finding the appellant guilty on Charge 1 (contravene direction or requirement) the Magistrate has betrayed a fundamental misunderstanding as to the operation of the relevant provisions of the Police Powers and Responsibilities Act 2000 (Qld) (PPRA); and

3. (2)
   in order to convict the appellant on Charge 2 (obstructing police), the Magistrate had necessarily to find that the force used to effect the arrest was reasonable.  A cursory examination of the video footage of the arrest (Exhibit 2) reveals, to any fair-minded observer, that this finding was so unreasonable that no reasonable Magistrate could ever have made it.

7. [7]
   The issues in this appeal are:

3. (1)
   with respect to the contravene direction offence:-

1. (a)
   was it reasonable to give the direction;

2. (b)
   was the direction reasonable in nature and scope;

3. (c)
   was the appellant given a reasonable opportunity to comply with the direction;

3. (2)
   with respect to the obstruct police offence:-

1. (a)
   if the appellant succeeds in impugning the contravene direction offence the “obstruct police” offence must fall with it;

2. (b)
   irrespective of the contravene direction offence was the arrest itself unlawful.

8. [8]
   The appeal from the learned Magistrate’s decision is by way of re-hearing (s 223(1) Justices Act 1886).  The nature of this appeal requires me to conduct a real review of the trial and the learned Magistrate’s reasons (see Fox v Percy [2003] 214 CLR 118 at para 25 and see Parsons v Raby [2007] QCA 98 para 23).

9. [9]
   Section 39 of the PPRA before it was renumbered provides:-

“39 (1) A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.

…

3. (2)
   However, a police officer must not give a direction under subsection (1) that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of –

1. (a)
   public safety; or

2. (b)
   public order; or

3. (c)
   the protection of the rights and freedoms of other persons.

…

3. (3)
   Without limiting subsection (1), a direction may require a person to do 1 of the following –

1. (a)
   leave the regulated place and not return or be within the regulated place within a stated reasonable time of not more than 24 hours;

2. (b)
   leave a stated part of the regulated place and not return or be within the stated part of the regulated place within a stated reasonable time of not more than 24 hours;

3. (c)
   move from a particular location at or near the regulated place for a stated reasonable distance, in a stated direction, and not return to be within the stated distance from the place within a stated reasonable time of not more than 24 hours.

3. (4)
   The police officer must tell the person or group of persons the reasons for giving the direction.”

10. [10]
    Section 376(1) of the PPRA before it was renumbered provides:

“376 (1) It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.

...”

11. [11]
    Section 391 of the PPRA before it was renumbered provides:

“391 (1) This section applies if a police officer gives someone an oral direction or makes an oral requirement under this Act.

3. (2)
   If the person fails to comply with the direction or requirement, a police officer must, if practicable, warn the person –

1. (a)
   it is an offence to fail to comply with the direction or requirement, unless the person has a reasonable excuse; and

2. (b)
   the person may be arrested for the offence.

3. (3)
   The police officer must give the person a further reasonable opportunity to comply with the direction or requirement.

...”

12. [12]
    Section 394 of the PPRA before it was renumbered provides:

“394 (1) This section applies if a police officer –

1. (a)
   searches or arrests a person; or

2. (b)
   searches a vehicle; or

3. (c)
   searches a place, other than a public place; or

4. (d)
   seizes any property; or

5. (e)
   stops or detains a person or vehicle; or

6. (f)
   requires a person to state his or her name and address; or

7. (g)
   gives to a person a direction under section 39 or 177; or

8. (h)
   enters a place to make an inquiry or investigation or to serve a document; or

1. (i)
   exercises a power as a public official.

3. (2)
   The police officer must, as soon as reasonably practicable, inform the person the subject of the power of the following –

1. (a)
   if the police officer is not in uniform –

1. (i)
   that he or she is a police officer; and

2. (ii)
   his or her name, rank and station; or

2. (b)
   if the police officer is in uniform – his or her name, rank and station.

3. (3)
   If the police officer is not in uniform, the police officer must also produce for inspection his or her identity card.

3. (4)
   If the police officer is searching a person, vehicle or place, other than under a search warrant, the police officer must state the purpose of the search and the reason for seizing any property.

3. (5)
   If 2 or more police officers are searching the vehicle or place, only the senior police officer present is required to comply with subsections (2) to (4).

3. (6)
   However, if a person asks another police officer for the information mentioned in subsection (2) or to produce an identity card, the police officer must give to the person the information requested or produce the identity card.

…”

13. [13]
    Sections 444(1) and (3) and 445(2) of the PPRA before they were renumbered provide:

“444 (1) A person must not assault or obstruct a police officer in the performance of the officer’s duties.

Maximum penalty – 40 penalty units or 6 months imprisonment.

…

3. (3)
   In this section –

assault has the meaning given by the Criminal Code, section 245.

obstruct includes hinder, resist and attempt to obstruct.

…

445 (2) A person must not contravene a requirement or direction given by a police officer, including a requirement or direction contained in a notice given by a police officer, under this Act, unless the person has a reasonable excuse.

Maximum penalty –

• for contravening a requirement or direction relating to a relevant law for which the penalty for a contravention of a similar requirement or direction made by a public official under the relevant law is more than 40 penalty units – the maximum penalty under the relevant law for the offence;

• otherwise – 40 penalty units.”

14. [14]
    Mr Doman’s evidence was that he felt threatened verbally by the appellant and he went and got the police just to be safe. He also said the appellant was argumentative about coming out of the toilets. He later qualified that by saying it was a disagreement.

15. [15]
    Constable Kemper’s evidence was that he arrived at the toilets and he allowed the appellant time to put his belongings into his bag. When the police and the appellant were halfway up the ramp the appellant suddenly stopped and turned and faced Constable Robinson. His stance was belligerent and the appellant was clenching his fists and looking very angry at Constable Robinson. The appellant was asked to stand back. Constable Kemper described the appellant as being very belligerent, very aggressive in a public place. Constable Kemper said that because the appellant had been arguing with the cleaner and had been arguing with the police, he was concerned because of this sort of behaviour that, if the appellant was going to be in the Queen Street Mall where there is still a lot of people, he was concerned for the appellant’s safety and other people’s safety where he could cause a fight or someone would be inclined to do violence upon him, so he did need to give the appellant the direction.

16. [16]
    The tape-recording shows Constable Kemper was acting on the basis that the appellant had committed a public nuisance by arguing with him and, due to his behaviour and due to the offence, directed him to leave the Queen Street Mall immediately for eight hours.

17. [17]
    Constable Kemper said he gave the appellant ample opportunity to leave on his own accord. The appellant became very aggressive and very abusive and for that reason Constable Kemper thought he would not leave the Mall. Constable Kemper was asked by the appellant for his details, which Constable Kemper appears on the tape-recording to have given to the appellant. Constable Kemper said he gave the appellant the direction three times and then resolved to arrest the appellant. The recording shows Constable Kemper told the appellant he was now under arrest. He said as he has gone to apprehend the appellant and just taken his wrist to place the handcuffs on him, at that point he was walking sort of very much into barging through. At that point Constable Kemper has hugged him to make sure he did not go to the ground or he did not try and run away. He then said they were going to take him to the ground because he was either going to fall down himself or because he was under arrest at that point. Then his legs were taken out and he was placed on the ground. That is when the appellant started thrashing out. At one point the appellant attempted to get away from Constable Kemper’s custody. The appellant kept on struggling against his custody and obstructing his duties and his lawful arrest. While on the ground the appellant was very aggressive and very argumentative. He was still being very belligerent as he was before.

18. [18]
    Constable Robinson’s evidence and Constable Boysen’s evidence is not materially different from Constable Kemper’s evidence.

19. [19]
    Constable Kemper had power to direct the appellant to leave the Mall provided the direction was reasonable in the circumstances.

20. [20]
    However, Constable Kemper accepted the directions in the Operational Procedures Manual (OPM) issued by the Commissioner of Police were reasonable. The OPM provided that the “move on” power must be exercised in a way that can withstand public scrutiny. Prior to any direction being given, a police officer is required to consider any reason given for being in or near the public place (OPM 13.25.5). Finally, s 391(3) of the PPRA provides that a person given a direction by a police officer must be given a reasonable opportunity to comply with it.  Reasonable force may be used for the purposes of an arrest (see s 376(1) of the PPRA).

21. [21]
    The learned Magistrate listened to the tape-recording and viewed the video that were exhibits in the proceedings before the learned Magistrate. I also have listened to the tape-recording and viewed the video that were exhibits in the proceedings before the learned Magistrate.

22. [22]
    In my opinion the evidence from the police officers was evidence the learned Magistrate could accept and was not contradicted by other evidence. In my opinion, the tape-recording and video do not contradict their evidence in any material way. In my opinion, the learned Magistrate made no error accepting the evidence of the police officers.

Was it reasonable to give the direction?

23. [23]
    In my opinion, the learned Magistrate could conclude there was a foundation for the exercise of the power to give the direction under the PPRA.  That is because the learned Magistrate could act on the evidence of Constable Kemper about his reasons for giving the direction.

24. [24]
    Further, the learned Magistrate could be satisfied the behaviour of the appellant (including aggressive, quarrelsome and threatening behaviour) was interfering with the comfort of other people in the place, including Mr Doman and the police officers because the learned Magistrate could act on the evidence of Mr Doman and the police officers about the appellant’s behaviour.

25. [25]
    Nothing in the tape-recording or video requires any different conclusions to be reached in this case.

26. [26]
    In my opinion, it was open to the learned Magistrate to conclude beyond reasonable doubt it was reasonable to give the direction.

Was the direction reasonable in nature and scope?

27. [27]
    In my opinion, the circumstances did not warrant limiting the direction to a direction to stay away from the toilets. In my opinion, the learned Magistrate could accept, in the circumstances, that wanting to avoid any further unwanted behaviour in the Mall, the direction to leave immediately and not return for eight hours was reasonable. The learned Magistrate noted the word immediately implied with “little delay”. He also observed that the maximum exclusion period was one of 24 hours. Therefore, the appellant could have returned to the Queen Street Mall not long after 5.00 am on 10 July 2006.

Was the appellant given reasonable opportunity to comply with the direction?

28. [28]
    The evidence reveals the appellant was asking for the details of all the police officers present. In my opinion, the appellant was not entitled to the name, rank and station of every police officer present. Constable Kemper did inform the appellant of his rank, name and station. In my opinion, it was the appellant through his actions that made it clear that he was not prepared to abide by the direction. He was given a number of opportunities to comply. The appellant did not proffer any other reason why he needed to stay in the Mall. In my opinion, the learned Magistrate was correct to be satisfied beyond reasonable doubt the appellant did not have a reasonable excuse for non compliance with the direction.

29. [29]
    Having listened to the tape-recording and viewed the video, and considering the evidence of the police officers, I am satisfied the learned Magistrate was correct to come to the view that all elements of this offence had been proved beyond reasonable doubt.

30. [30]
    In my opinion, the learned Magistrate did not betray a fundamental misunderstanding of the operation of the relevant provisions of the PPRA.

Obstruct police offence

31. [31]
    The appellant submits that more force was used than was necessary to effect the arrest or than could have been regarded as reasonable in the circumstances.

32. [32]
    Section 376(1) of the PPRA provides that the police are permitted to use reasonably necessary force when exercising a power under the PPRA or any other Act.  Of course the use of lawful force does not permit use of force likely to cause grievous bodily harm or death.  In the present matter, in my opinion, the force used was applied in the course of arresting the appellant and was not such as was likely to cause grievous bodily harm or death.

33. [33]
    It is unsettling to see the images on the video recording. However, the situation was fluid. Constable Kemper said the appellant was still thrashing about and he had applied his knee to the appellant’s leg. I can see in the video a police officer, identified by the learned Magistrate as Constable Arndt, bringing his leg down on several occasions towards the appellant. However, the actions of this police officer may have been necessary to subdue the appellant, who may have been kicking out with his leg. I am satisfied, as was the learned Magistrate, the police officers used lawful force to arrest the appellant.

34. [34]
    As far as the complaint about handcuffing the appellant is concerned, in my opinion it was not unlawful to handcuff the appellant.

35. [35]
    Therefore, I am satisfied the learned Magistrate could find the police officers acted lawfully within their powers to make the arrest in the manner they did. I am satisfied the learned Magistrate could find the force used to make the arrest was reasonable. Further, an examination of the video does not, in my opinion, contradict that finding.

36. [36]
    Therefore, I am satisfied the learned Magistrate’s decision was correct. I dismiss the appeal.

37. [37]
    I will hear the parties on the question of costs.