Lucas v Casson
[2008] QDC 163
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Lucas v Casson[2008] QDC 163
- Add to List
Lucas v Casson[2008] QDC 163
Lucas v Casson[2008] QDC 163
[2008] QDC 163
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE FORDE
No 2721 of 2007
STEPHEN JOHN LUCAS | Appellant |
and | |
JACQUELYN CASSON | Respondent |
BRISBANE
DATE 25/02/2008
ORDER
HIS HONOUR: This is an appeal against the decision of the Magistrate, Mr Nunan, who gave his reasons on the 27th of August 2007. The appellant, Mr Lucas, was charged on that occasion with committing a public nuisance which occurred on the 14th of June 2007.
...
HIS HONOUR: This is the only offence with which I am dealing today. The learned Magistrate on that occasion fined the appellant $100 and was satisfied that there was a public nuisance.
The facts were that on the day in question the appellant was sitting at Toombul and had been sitting there for some time. He says that he was minding his own business and staff became concerned that he had been sitting there for too long and police and security were called.
It matters not at this point as to why he was sitting there but when approached by police it seems that there was conversation between the appellant and police and, as a result of that, the appellant was charged.
The decision of the Magistrate placed reliance on the evidence of Constable Casson who it is said the appellant called "a fucking bitch". This was denied by the appellant.
It becomes a question then of whether there was evidence upon which the Magistrate could act in this case to convict, that is to support the evidence of the complainant, Constable Casson (see Bailey v. Coston CA261 of 1993).
The Magistrate said that he was impressed with her evidence, that she did not know the appellant before this day, that she had no pre-knowledge of him and, what is probably relevant here, the Magistrate in his reasons in relation to the actual offence did not make mention in any way of the mental condition of the appellant.
As the Magistrate sits as both Judge and jury, he is required to act upon the evidence and not irrelevancies and, in this instance, at least on the written reasons as far as the offence is concerned, as to be distinguished from the reasons given when he punished the appellant, he did make no mention of the mental condition of the appellant.
In determining whether such words used amounted to public nuisance, the Magistrate had regard to the decision of Green v. Ashton where a person called a police officer "a fucking cunt". This language has been, by virtue of the amendments to the Vagrants, Gaming and Other Offences Act, section 7A, held to be of an abusive nature to a police officer who can, for all purposes, be regarded as a member of the public.
In the context of that day and the circumstances where there were many people around and the overall circumstances of this fracas, it could be said that such language, if used, amounted to being abusive and therefore, as far as the Act is concerned, a public nuisance. A person behaves in an offensive way if a person uses offensive, obscene or indecent language.
The question is whether the Magistrate was entitled to accept the evidence of Constable Casson together with the security officer, Christopher Corby, in this case.
...
HIS HONOUR: Whether or not there were discrepancies as pointed out by the appellant is not really to the point. The question is whether the Magistrate was prepared to act upon the basic thrust of the evidence and that is that language was used towards Constable Casson.
The Magistrate appreciated the right of individuals to go and sit at these shopping centres but was also satisfied on the evidence that the words were used and that in the circumstances of the case and the manner in which they were stated amounted to an offence as charged. Where credibility is an issue, and the Magistrate has made findings on credit, an appellant cannot succeed unless the Magistrate has failed to use the advantage of seeing the witnesses or has acted on evidence which was inconsistent with facts which were established by the evidence (see Devereaux v. The Australian National Railways Commission [1992] - 177 CLR 472).
In the present case there is nothing which presents before me which would indicate that even though there may have been some discrepancies in the evidence that the important evidence of the making of the statement and the conduct were accepted by the Magistrate. As such, on appeal, I cannot therefore allow an appeal unless there is some evidence which would show that the Magistrate has failed to use the advantage he had of seeing and hearing the witnesses.
A Magistrate in these circumstances exercises a discretion in determining whether an offence may have been proved or not (see House v. The King [1936] 55 CLR 499 at 504). It must be demonstrated that the Magistrate that the Magistrate acted upon a wrong principle and allowed in extraneous or irrelevant material in his reasoning.
I am not satisfied that in this particular case that that has occurred. Therefore the appeal is dismissed.
...