DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On the morning of 24 June 2005 Mr Courtney, the appellant before me, made his way to the intersection of Finucane, Old Cleveland, and Moreton Bay Roads at Capalaba. He had gone there to hold up signs accusing the police and the Queensland Labor Party of corruption and dishonesty. It was something he had done many times. Typical of the signs he had that day was one which proclaimed “ALP cops cover up ALP scum”.  Another had written on it “Premeditated beating and verbal by Nazi ALP police for speaking out against APL corruption”.  He had a number of other slogans, all somewhat similar in their lack of imagination, and, I think, some unnecessarily offensive.

2. [2]
   Mr Courtney claims to be a whistleblower who has, in the past, exposed corruption in public life. This day he believed he was entitled to go there and hold up the signs for the occupants of passing cars to see. He saw his actions that day as a political act protected by the Constitutional guarantee of freedom of communication about government and political matters.

3. [3]
   Whether these signs were protected or not by the Constitution, two police officers passing that day found them to be very offensive. The two police officers, a PC Senior Constable Shane William Peacock and a Constable Craig Andrew Quinn, decided to “place him under observation”, I assume, from the relative comfort of their police vehicle. After watching him for about 10 minutes or so, they approached him and placed him under arrest. He was searched and taken back to the police station. Ultimately he was not charged with any offence directly relating to the message or signs, although, from their statements the two police officers obviously took the messages very personally.^[1]

The charge

4. [4]
   Instead, Mr Courtney was prosecuted for a public nuisance offence under the  Summary Offences Act 2005 on the basis that he behaved in a disorderly way and interfered (or his disorderly behaviour was likely to interfere) with the peaceful passage through a public place of a member of the public. For the purposes of the charge the public place was the roadway, and the members of the public were the drivers or occupants of passing motor vehicles. The disorderly behaviour was particularised at the commencement of his trial by the police prosecutor to be an act of stepping towards the edge of the footpath and pushing his sign towards the passing traffic. This act, it was said, interfered with the passage of motorists along the road.^[2]

5. [5]
   The case brought against Mr Courtney therefore was an improbable one as merely displaying signs from a footpath to passing motorists is not in itself disorderly conduct. Disorderly behaviour normally requires conduct which is intended or likely to interfere with or annoy others to a point where the criminal law is appropriately engaged. The charge laid against him required proof of disorderly conduct and proof the disorderly conduct interfered with motorists. The charge is improbable because it is not immediately apparent that simply holding a sign while standing on a footpath amounts to disorderly behaviour likely to interfere with the peaceful passage of motor vehicles along the adjoining road.

The evidence

6. [6]
   The evidence led to establish the charge consisted of the observations of the two police officers responsible for the arrest and an off duty police officer, a Constable Carl William Bishop, who coincidentally drove past Mr Courtney at about the same time. When Constable Bishop drove through the intersection, he saw vehicles ahead of him were “going around that left‑hand turn in a haphazard fashion, braking erratically”.^[3]  As he drove around the intersection he saw a man (who was obviously Mr Courtney) step from about a foot to a foot and a half away from the kerbing towards the kerb “thrusting the sign towards the vehicles”.^[4]  He braked suddenly, causing the vehicle immediately behind him to also brake. The constable said he braked because he thought Mr Courtney was going to step out in front of him.^[5]

7. [7]
   All of the prosecution evidence related to a fairly short period of time. Constable Bishop said he drove through the intersection at approximately 10.15 am. PC Senior Constable Peacock and Constable Quinn said they noticed Mr Courtney at the intersection at about 10.20 am, and kept him under observation for approximately 10 minutes. They did not observe any of the haphazard braking which troubled Constable Bishop, but they did notice one driver suddenly change lanes, they surmised as a result of being startled by Mr Courtney and his slogans. In giving his evidence, PC Constable Peacock said Mr Courtney had moved to the edge of the pavement at the time the vehicle suddenly changed lanes.

8. [8]
   Both Constables described Mr Courtney stepping towards the edge of the footpath and holding out the sign towards passing vehicles. Constable Peacock said there was a space of one to one and a half metres between the gutter and the line of traffic. That seems to be the entirety of the evidence led against Mr Courtney by the prosecution.

9. [9]
   Mr Courtney is a pensioner. He explained in evidence that he had been standing on footpaths displaying signs for about two hours a day most days over the past 10 or 11 months. He said he held up signs so they could be seen by passing vehicles. He disputed the suggestion he had interfered with motorists in their peaceful passage along the road.

10. [10]
    The prosecution case was that the disorderly behaviour was the act of moving towards the kerb and holding out a sign for the occupants of passing vehicles to see. The suggestion made by PC Senior Constable Peacock and Constable Quinn was that Mr Courtney’s conduct “startled” the driver of a particular car so that she changed lanes suddenly. The proof of the charge therefore depended upon drawing an inference the unknown motorist was in fact startled by Mr Courtney’s actions, and in that sense Mr Courtney interfered with her peaceful passage along the road.

Discussion

11. [11]
    The comment may be made that Mr Courtney, who has stood on footpaths displaying signs on countless occasions (presumably without interfering with the peaceful flow of the traffic), was singularly unfortunate that in a very short space of time of about 10 to 15 minutes one police officer passing bye saw the adjacent roadway reduced to a scene of virtual chaos with vehicles braking haphazardly, and he himself was forced to brake suddenly, and two other police officers who were observing the intersection (but who did not see the haphazard braking), saw a driver change lanes suddenly, startled, they thought, by Mr Courtney and his signs.

12. [12]
    The first question before the magistrate was whether Mr Courtney’s actions amounted to “disorderly behaviour”.  On this issue the opinions of the police officers were irrelevant, as the question was one for the judgment of the magistrate. Mr A Taylor, the magistrate, decided that it was. Of course, if Mr Courtney is guilty of “disorderly behaviour”, so is my local federal member of parliament. For months before the last federal election teams of uniformed supporters, and some even dressed up as animals, behaved in much the same way as Mr Courtney did (putting Constable Bishop’s observations aside for the moment as an aberration).  Logically the only difference between commercial advertising and such activity is a matter of degree. Neither directly impedes traffic but both aim to attract the attention of the occupants of passing vehicles. There is of course some underlying level of risk because whenever the attention of a driver is diverted some level of risk creeps into the situation, but society generally has not endeavoured to remove all the underlying risks of daily life. Whether the magistrate’s conclusion on the first element was correct or not, I think the conclusion he reached on the second element was not reasonably open to him.

13. [13]
    The prosecution case is that Mr Courtney indirectly interfered with the peaceful movement of a particular driver when he startled her. Although the police officers in their evidence emphasized the fact the vehicle “swerved”, what the vehicle did was change lanes. Vehicles change lanes all the time, sometimes without adequate warning to other vehicles. The particular driver was not identified so it is impossible to know whether she was startled or not. The police officers expressed their opinion the driver had been startled. They may be correct, but equally they may not be^[6].  The conclusion I have reached is that as a matter of law^[7], the evidence was insufficient to support a conclusion beyond reasonable doubt that the particular unidentified driver had been startled by Mr Courtney, and that as a consequence the evidence was insufficient to support a conviction against him.

14. [14]
    In these circumstances it is unnecessary to discuss any of the many other grounds of appeal advanced by the appellant.

Orders

A.The Appeal is allowed; and

B.The conviction and sentence is set aside, and

C.A verdict of not guilty is entered