DISTRICT COURT OF QUEENSLAND

 Background

1. [1]
   On the afternoon of 30 November 2006, police set up a roadblock on McIvor Road, approximately 3 kilometres outside the Hope Vale community. The police were intercepting vehicles with a view to enforcing the Alcohol Management Plan in the community. The vehicle in which the respondent was travelling, was intercepted and as a result of what occurred between the respondent and police following his alighting from the vehicle, the respondent was charged with three summary offences.

2. [2]
   The respondent was charged with committing a public nuisance offence; assaulting Sergeant Simon Atkinson in the performance of the officer’s duties and obstructing Sergeant Atkinson in the performance of his duties.

3. [3]
   The respondent pleaded not guilty and a trial proceeded in the Cooktown Magistrates Court. The trial commenced on 5 December 2007 and continued into the next day. On 6 December 2007, following a no case to answer submission by defence, the Magistrate dismissed the charge of public nuisance. Further evidence was heard on 6 August 2008 and the Magistrate found the respondent not guilty of the remaining two charges and both were dismissed. The police now appeal against the dismissal of all three charges.

4. [4]
   Upon the dismissal of the two remaining charges, an application was made on behalf of the respondent for costs. The Magistrate made an order that the appellant pay the respondent’s costs in the sum of $32,000. The appellant appeals against the Magistrate’s decision to award costs.

Grounds of appeal

5. [5]
   The basis of the Magistrate’s finding that there was no case for the respondent to answer with respect to the charge of public nuisance, was that he found that in the circumstances, as they existed at the time, the place where it was alleged the respondent committed the offence was not a public place. The appellant contends that this was an error in fact and law.

6. [6]
   The appellant contends that the dismissal of the further two charges was “against the weight of the evidence and contrary to law”. Sofar as the challenge to the Magistrate’s decision to award costs is concerned, the appellant contends that the Magistrate erred in exercising his discretion to award costs pursuant to s 158A of the Justices Act 1886; erred in failing to properly take into account that the respondent was legally aided; and further or in the alternative, that the quantum of the award of costs was manifestly excessive, unjust and/or unreasonable pursuant to Part 6 Division 8 of the Justices Act 1886.

Particulars

7. [7]
   At the commencement of proceedings the prosecution provided particulars of each charge. Regarding the public nuisance offence, the particulars are that at about 15:00 on 30 November 2006 at McIvor Road approximately 3 kilometres from the Hope Vale community, the respondent used offensive language and gestures. The respondent’s behaviour interfered with Sergeant Atkinson’s enjoyment as he found the respondent’s behaviour offensive.

8. [8]
   The particulars given of the assaulting of a police officer were that at about the same time and at the same place, the respondent was informed he was under arrest for the offence of committing a public nuisance and he then attempted to strike Sergeant Atkinson on a number of occasions.

9. [9]
   With respect to the final charge of obstructing a police officer, the particulars given were that at the same time, date and place whilst Sergeant Atkinson and other police attempted to effect the respondent’s arrest he struggled to such an extent that handcuffs were required to be placed on him.

Facts

10. [10]
    The roadblock was described by police as a “static interception site”. Sergeant Simon Atkinson was dealing with a vehicle which had earlier been intercepted when two other vehicles approached which were intercepted by Senior Constables Johnson and Stallard. Johnson approached the driver of the first vehicle and Stallard approached the driver of the second vehicle in which the respondent was a passenger. Stallard indicated to the driver of the vehicle to pull over to the side of the road. Sergeant Atkinson was still talking to the driver of the vehicle he had intercepted and was moving alcohol exhibits from that vehicle to the rear of the police vehicle. Stallard asked the occupants of the vehicle in which the respondent was a passenger to get out and they complied. The respondent, who was drunk, alighted from the back seat on the left-hand side of the vehicle.

11. [11]
    Atkinson’s evidence was that as he was moving between the vehicle he had intercepted and the police vehicle, he saw that the respondent had walked from the rear of his vehicle to the point where he, Atkinson, was talking to the driver and others in the vehicle that he had intercepted. This was between two intercepted vehicles. Atkinson’s attention was drawn to the respondent because he could hear him swearing, although he could not then hear exactly what he was saying. Atkinson went on –

“At that time I was walking back to the vehicle, I heard Mr Gibson say to me, “What are you doing with all that fucking beer?”  I basically ignored him; it wasn’t anything to do with me at that point in time. As I’ve moved to the back of the vehicle to take some more of the alcohol to the police vehicle, he’s – Mr Gibson’s then said to me, “How long are you bastards going to be here anyway?”  I said, “Look, please just move away, stop swearing, it’s nothing to do with you.”  At that point Mr Gibson’s then turned [indistinct] facing me, he said, “Oh, you’re all just a bunch of fucking cunts anyway”, and he raised his middle left finger at me.”^[1]

12. [12]
    Atkinson’s evidence continued –

“At that point, I informed Mr Gibson that he was under arrest for being a public nuisance. He’s then taken up a fighting stance, he’s raised his fists towards me, he’s thrown a couple of punches at me, they didn’t connect with me. I told him to calm down. He’s then tried to rush past me. I’ve tried to take hold of him but he was pretty slippery. My hands slipped over his shoulders, he’s ducked out of my grip. He’s then moved over towards the middle of the road, then turned and faced me and raised his fists again. I told him to calm down. He’s thrown another couple of punches at me, none of which connected me. Then Senior Constable Johnson has come from my right-hand side and tried to grab hold of the defendant. They’ve both fallen, fallen to the other side of the road from the momentum, fallen to the other side of the road into a nearby ditch on the far side of the road, where Johnson and Mr Gibson have then had a struggle….I’ve walked over to them. I saw that Gibson had hold of Johnson’s shirt. I told him to let go. I struck Gibson once in the chest area with the top knuckle of my hand. I struck him with a blow to the chest area in an attempt to distract him to gain control of him. I noticed that a very short time after that, Gibson’s then tucked himself in, put his hands underneath him, which makes it hard for us to – to get control of his hands to handcuff him.”^[2]

13. [13]
    Neither Johnson or Stallard heard anything of what was said by the respondent to Atkinson initially.

14. [14]
    The driver of the vehicle intercepted by Atkinson, Gavin Allum, gave evidence that he heard the respondent saying to Atkinson, “How long are you bastards up here?” and Atkinson responding, “Shut your fucking mouth or I’ll put you in gaol”, to which the respondent replied, “I’m just fucking asking”. Other occupants of the vehicles gave similar evidence.

15. [15]
    Regarding the alleged assault, Senior Constable Stallard said that she saw Atkinson and the respondent opposite each other, one to two metres apart and that the respondent’s hands were clenched up in the air and he was throwing some punches in the direction of Atkinson who also had his hands clenched and was in a fighting stance.

16. [16]
    Senior Constable Johnson’s evidence in this regard was -

“At this time I have just been looking around and observed to see Sergeant Atkinson standing approximately in the middle of the road with the defendant. He appeared to be struggling with the defendant. I then run past Senior Constable Stallard getting her attention on the way and attempted to restrain the defendant…I observed Sergeant Atkinson’s hands were up like that either attempting to – to restrain him or to hold him back from himself and that it appeared that the defendant was trying to throw punches at Sergeant Atkinson.”^[3]

17. [17]
    Johnson confirmed in cross-examination that the first view he had of anything physical was Atkinson touching the respondent. On his account Atkinson was holding both his arms out in front towards the top of torso height touching the defendant’s upper torso/lower neck area.

18. [18]
    Witnesses called by defence gave similar versions of Atkinson grabbing the respondent around the collar area, the neck or the throat.

19. [19]
    Johnson conceded that he ran at the defendant and impacted into the side of his body in a manner which was close to the nature of a tackle of the upper torso which propelled the respondent backwards.

20. [20]
    Witnesses for the defence described Johnson’s actions variously as “slinging him over the other side of the road”^[4]and “throwing him over on the other side of the road or to the ground”^[5]or “grabbing the respondent, taking him over the road and knocking him into the bank”.^[6]

21. [21]
    Atkinson acknowledged that the momentum of Johnson’s movement and contact with the respondent caused Johnson and the respondent to fall to the other side of the road into a ditch. Atkinson agreed that Johnson impacted with, “enough force to move a human body across the road in reaction to it”.

22. [22]
    The defence witnesses Allum, Cobus, Gibson and McIvor all describe the respondent being pushed, wrestled or forced to the ground by the police.

23. [23]
    Johnson’s evidence as to what occurred once the respondent fell to the ground was as follows:-

“I believe the defendant fell first, not on top of the defendant. I then attempted to get to my feet to restrain the defendant while he was holding onto – onto my shirt to prevent me from standing up. At this time I’ve told him numerous times to release my shirt and to comply with police directions. He failed to do so, so I then punched the defendant once to the ribs. This may have caused the defendant to release my shirt. I then stood up properly and the defendant has then placed his arms underneath himself on the road. I have then attempted to remove his arms from underneath him, all the time telling the defendant to release his arms so that he can be restrained. He failed to do so and eventually we managed to remove his arms from underneath him and handcuff him behind his back.”^[7]

24. [24]
    Stallard’s evidence was that when she went over to Johnson and the respondent - “The defendant was on the ground and Senior Constable Johnson was trying to get his hands out from underneath him …He was face down on the ground …[his hands] were tucked underneath his chest.”^[8]

25. [25]
    Stallard said that Johnson was trying to get the respondent’s hands out from underneath him, as was she. Eventually she was the one to handcuff the respondent. Stallard described her positioning with respect to the respondent as follows:-

“I had my left knee on the top part of his back. I’m not sure where my right knee was, my left knee was on top of him and I was just trying to get his hand out from underneath from the left side.”

Stallard said that she had her body weight on the knee which was on the respondent’s back.^[9]

26. [26]
    The witnesses called for the defence spoke of Atkinson putting his knee into the respondent’s back and pulling his head back by the hair while Johnson pulled his arms back and hit him twice in the face or head.

27. [27]
    The respondent was examined by a doctor at the Cooktown Hospital at 7.40 pm on 30 November 2006 when he was found to have abrasions on his right elbow, a linear abrasion on his right upper arm, tenderness to his right inside shoulder blade, bruising on his forehead and a small laceration on the inside of his upper lip. The state of the injuries was consistent with them having been caused earlier the same day.

Statutory provisions regarding public nuisance

28. [28]
    The offence of committing a public nuisance offence is to be found in s 6 of the Summary Offences Act 2005. Subsections (2) and (3) of s 6 provide:-

“(2)A person commits a public nuisance offence if –

1. (a)
   the person behaves in –

1. (i)
   a disorderly way; or

2. (ii)
   an offensive way; or

3. (iii)
   a threatening way; or

4. (iv)
   a violent way; and

2. (b)
   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.

(3)Without limiting subsection (2) –

(a)a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and

(b)a person behaves in a threatening way if the person uses threatening language.”

29. [29]
    A “public place” is defined in the Dictionary to that Act relevantly as –

“(a) …a place that is open to or used by the public, whether or not on payment of a fee.”

30. [30]
    The object of the Part of the Act in which the public nuisance offence is created is stated to be “ensuring, as far as practicable, members of the public may lawfully use and pass through public places without interference from acts of nuisance committed by others”.

31. [31]
    Section 14A(1) of the Acts Interpretation Act relevantly provides:-

“14AInterpretation best achieving Act’s purpose

1. (1)
   In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation…”

Dismissal of public nuisance charge

32. [32]
    The Magistrate found that Sergeant Atkinson was a member of the public and that what was said to him by the respondent could be found to be offensive. He noted that the “public place” relevant to the charge was not the entire McIvor Road between Cooktown and Hope Vale but rather a discrete part of the road off the part where vehicles normally drive. He noted that the use being made of that part of the road was not a regular use but rather a roadblock or “static interception site”. “A special site, not defined by any markings but defined by the use being made of it by the police.”  He noted that cars were being pulled up “by force of law” and that all persons and vehicles were detained there and not permitted to leave until the police had finished their investigations. He noted that the place the respondent was when he was alleged to have used the words was in between the detained cars.

33. [33]
    The Magistrate identified the issue he had to decide as, “Has this place where the defendant was, lost its status as a public place? Is it still a place open to or used by the public? Could a member of the public wander in between the two cars without restriction?” The Magistrate came to the conclusion that “a reasonable member of the public would not go there for fear of interfering with the police. Reasonable people would avoid the area and would consider the area not available for their general use.” He concluded that on the evidence before him he could not find that the place between the two cars was “a public place”.

34. [34]
    Although Sergeant Atkinson’s evidence was that he found the words used by the respondent offensive and there was evidence that the respondent behaved in an offensive way, the Magistrate found that there was no direct evidence of how the offensive behaviour affected Atkinson’s “enjoyment” or use of the place. The evidence was simply that he was offended and that he then arrested the respondent. However, the Magistrate found that nevertheless an inference could be drawn that the offensive behaviour by the respondent had in fact interfered with Atkinson’s enjoyment of the place in that the respondent had “presented him with an unacceptable annoyance”. The Magistrate noted that the words used by the respondent were strong words and that they and the gesture were directed at Atkinson.

35. [35]
    The appellant argues that the Magistrate should have asked the question whether members of the public were lawfully excluded from entering the relevant place. The appellant points out that there is no authority in law for police to exclude persons from an area, save where a crime scene is lawfully declared and that if members of the public have a choice as to whether or not to enter an area then it is still a public place. The appellant argues that the fact that a person or persons are temporarily detained within an area by police does not affect the status of that area as a public place.

36. [36]
    The appellant also noted that although the area was set up as a static intercept by police and persons were detained and unable to leave until told to do so by police, they were nevertheless able to move freely within the area. It is also argued that there is no requirement to prove that the offending person was in a public place as a public nuisance offence is committed if the behaviour of the person interferes or is likely interfere with the peaceful passage through or enjoyment of a public place by a member of the public.

37. [37]
    On the other hand, the respondent argues that consistently with the object of the relevant Part and the definition of public place in the Summary Offences Act, the quality of a place which makes it a “public place” is that members of the public, even if they have to pay a fee to be present, can be present in the place in the exercise of free will and they are free to leave by their own choice. It therefore follows that a location which might normally have the quality of a public place can be robbed of that quality if, even temporarily, it is not open to use by the public and all present within it are not there in the exercise of free will and are not free to leave by their own choice. It is unlikely that the legislature intended police officers be protected from people they have effectively apprehended, swearing at them in such a place.

38. [38]
    Therefore, that part of the roadside of McIvor Road where the events occurred was no longer a public place whilst it was being used as a “static vehicle interception site”. It was in effect, a “temporary detention zone”, an area into which vehicles and the persons travelling in them were present because they were compelled to be there by police direction and not in the exercise of a free choice as members of the public.

39. [39]
    Atkinson confirmed in evidence that the power being used by the police to stop and detain vehicles was that provided by s 60 of the Police Powers and Responsibilities Act 2000 which provides that a person who fails to comply with a requirement by a police officer to stop a vehicle for a prescribed purpose commits an offence. The police evidence was that every vehicle approaching the site was being directed to stop and that the occupants of the vehicles were not given a choice when requested to get out of  their vehicles. They effectively were given a police direction to do so and were in police custody from that point.

40. [40]
    The respondent argues that the police had the power to, and would have, excluded members of the public from unwanted intrusion into the site. In the context of this case, the respondent argues that it was necessary for the prosecution to prove that both the respondent and Atkinson were in fact in a public place.

41. [41]
    The appellant referred the Court to cases in which it has been found that persons or objects within a private motor vehicle on a public road have been found to be in a public place.^[10]However, these authorities are not helpful to the circumstances of this case. Similarly, authority for the proposition that it is sufficient if the offending words are heard in a public place and that a community hall in which a public meeting was taking place is a public place are not particularly helpful in the circumstances of this case.^[11]

Conclusion

42. [42]
    In the circumstances of this case, given the particular use which was being made of the roadside by the police and having regard to the evidence of the police themselves as to their beliefs and expectations regarding the vehicles they intercepted and the occupants of those vehicles, the Magistrate’s finding that the respondent’s behaviour did not interfere with Atkinson’s use or enjoyment of a public place was correct. The appeal in this regard should be dismissed.

Dismissal of assault and obstruct charges

43. [43]
    Section 790 of the Police Powers and Responsibilities Act 2000 creates the offences of assault and obstruct police and reads:

“790>Offence to assault or obstruct police officer

(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.

(2)For subsection (1), a person who obstructs a police dog orpolice horse under the control of a police officer in theperformance of the police officer’s duties is taken to obstructthe police officer.

(3)In this section—

assault has the meaning given by the Criminal Code, section245.

obstruct includes hinder, resist and attempt to obstruct.”

44. [44]
    Section 245(1) of the Criminal Code defines “assault” as follows:-

“(1)A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an assault.”

45. [45]
    In his decision the Magistrate described Johnson’s initial contact with the respondent as being, “a crash tackle”. “Because that’s clear on all accounts of all witnesses except Stallard”. The Magistrate held that Atkinson’s mistake about the law with respect to a public place “does not necessarily make any arrest for the public nuisance and what then followed, unlawful”. He noted that neither of the other two police officers, Johnson and Stallard, heard or saw the initial verbal abuse and gesture by the respondent, or Atkinson informing the respondent he was under arrest, or the fighting stance and throwing of punches by the respondent.

46. [46]
    The Magistrate concluded that the sequence of events was as follows:-

“The defendant was very drunk, he abused Atkinson in the terms that Atkinson described. Atkinson has tried to take hold of the defendant after he said that he was going to arrest him for public nuisance.”

He found that the description of Atkinson grabbing the respondent by the throat was “somewhat exaggerated by the defence witnesses” and he found that in fact Atkinson was attempting to get hold of the respondent around the shoulder area.

47. [47]
    He found that Atkinson announced to the respondent his intention to arrest him for public nuisance and was met with a fighting stance and air-swings from the respondent. Atkinson then moved in on the respondent and the respondent evaded him. Atkinson was then met with a second fighting stance and more air-swings but did not, at that stage, move in on the respondent. He remained out of reach “standing off this much smaller but very drunk man, telling him to calm down”.

48. [48]
    The Magistrate noted that the taking up of the fighting stance and the air-swings could have been a threat to apply force to Atkinson or “they could be simply the acts of a drunken man showing bravado with no apparent ability to actually apply force to Atkinson”. The Magistrate noted that on Atkinson’s evidence he did not have any concern about being actually hit. Atkinson only got to within two arms lengths of the respondent at any time and there was no danger of Atkinson being actually hit. The Magistrate therefore found that there had been no actual contact by the respondent to Atkinson and importantly, no actual apparent present ability to apply force. He noted that for the respondent to have such ability he needed to be moving in on Atkinson’s direction but that there was no evidence of that.

49. [49]
    Regarding the charge of obstruct police, the Magistrate noted, “On any reading of the evidence, the defendant was struggling against the force being applied to him firstly by Johnson, then Atkinson, then Stallard. And that is after he was propelled across the road and onto the ground”.

50. [50]
    The Magistrate noted that immediately prior to Johnson coming into contact with the respondent, there was a “virtual stand-off” between the respondent and Atkinson which Atkinson was trying to maintain. Atkinson had his hands up to defend himself should the respondent come closer and he was employing the standard police tactic of not getting physically involved but employing the use of “presence” to control the situation.

51. [51]
    The Magistrate found that – “Unfortunately, Senior Constable Johnson has gone straight to the direct physical contact using great force, a crash tackle by a much larger man against a small man, which has propelled them both across half the road into the ditch. Now, that was not reasonable force. There was no immediate danger to Atkinson. He was two arms length away on their own case and the defendant was not moving towards him.” The Magistrate therefore found that the respondent was struggling “in self defence against an unlawful assault” when tucking his arms under himself.

52. [52]
    The Magistrate found that the force used by all three police officers was unreasonably excessive and none of the police officers could be said to be acting in the performance of their duties by detaining the respondent using unreasonable force. The Magistrate pointed to a number of inconsistencies and implausibilities regarding the police evidence, for example the improbability of the respondent having hold of Johnson’s shirt when the respondent was on his stomach on the ground; and of Atkinson and Johnson punching the defendant in the chest, again when he was on the ground on his stomach. He found therefore that he could not rely upon the police evidence as to precisely what occurred after the respondent fell to the ground.

53. [53]
    The findings of the Magistrate were that he could not be satisfied beyond reasonable doubt that the respondent had assaulted Atkinson by attempting to strike him on a number of occasions; that the police used excessive force against the respondent and were not therefore acting in the execution of their duty when the respondent was struggling; and in any event, any struggling by the respondent was in self defence against the excessive force.

Arguments re assault police charge

54. [54]
    The appellant referred to the Western Australian authority of Niciforo v R^[12]as authority for the proposition that someone who was shouting, advancing onto the applicant’s land, may have been aggressive and appeared to be waving his hands about could be said to be threatening to assault the applicant and to apparently have a present ability to apply force to the applicant.

55. [55]
    In the Queensland case of R v B^[13]a 12 year old student was pointing a knife at the school principal but standing at least four metres away from her. It was found that in those circumstances there was a threat to apply force. Pincus JA noted that:-

“Whether there was an actual or apparently present ability to effect the appellant’s purpose must be a matter of degree. The word ‘present’ cannot mean that the situation must be such that if the threat were carried out, no time, not even an instant, would elapse between the making of the threat and its being carried out”.

56. [56]
    The appellant argues that the Magistrate erred in taking into account that Atkinson was not within range of being struck and that the Magistrate did not properly consider that the reason why Atkinson approached the respondent was to arrest him and that in order to do so he would have to place himself in close physical proximity to the respondent. In moving away from Atkinson whilst throwing punches, the respondent was attempting to resist the arrest and the Magistrate erred in divorcing the “assault element” from its relationship to the duties being performed by Atkinson.

57. [57]
    The respondent noted that the particulars of the assault on Atkinson were that “the defendant attempted to strike Sergeant Atkinson on a number of occasions”. But the evidence simply did not support those particulars. On the evidence the inference that the respondent attempted to strike Atkinson was, at best, tenuous. The alternative inference that the respondent was simply engaging in drunken bravado, could not be excluded.

58. [58]
    In any event, the respondent argues that the element of the offence that Atkinson was acting in the performance of his duties of the time of the alleged assault could not be proved beyond a reasonable doubt as the purported arrest for public nuisance was not lawful because of the absence of any evidence the arrest was thought necessary to prevent the continuation of the behaviour.

59. [59]
    Courtney v Thomson^[14]is authority for the proposition that in order to establish the lawfulness of an arrest the prosecution must satisfy the requirements of s 365 of the Police Powers and Responsibilities Act 2000 (reasons for arresting without warrant) and prove the existence of a statutory reason for the arrest.

Conclusion

60. [60]
    On the evidence the Magistrate’s finding that the respondent had not assaulted Atkinson as defined by s 245 of the Criminal Code was correct. The prosecution could not prove beyond a reasonable doubt that the respondent had actually attempted to strike Atkinson as particularised. In any event, Atkinson did not disclose any reason why the arrest was necessary and therefore lawful.

Arguments re obstruct police charge

61. [61]
    The appellant argues that although the Magistrate was correct in having regard to the surrounding circumstances out of which the obstruct charge arose and the nature of the force used and whether such force was reasonable, he nevertheless erred in taking into account Johnson’s actions when deciding whether Atkinson (the officer named in the charge) was acting in the performance of his duties. The appellant argues that the Magistrate placed too much emphasis on the “crash tackle” by Johnson and this coloured his reasoning.

62. [62]
    Further, the appellant argues that despite the disparate nature of the evidence regarding what force was used once the respondent was brought to the ground, the Magistrate did not make any findings as to which evidence he accepted. It could not therefore be said that all force subsequent to the tackle was unreasonable.

63. [63]
    The respondent argues that even on the police evidence there was little to support the particulars given i.e. that the respondent “struggled to such an extent that handcuffs were required to be placed on him”. In any event, in the face of the internal inconsistencies in the police evidence and the contrary evidence given for the defence, the charge could not be proven beyond a reasonable doubt.

64. [64]
    In addition, the respondent argues that at the time of the alleged obstruct none of the police were acting in the performance of their duties and the force used by them was excessive and thus unlawful and the respondent was entitled to attempt to defend himself against it.

Conclusion

65. [65]
    It is certainly open on the evidence to conclude that excessive force had been used by Johnson, and subsequently by the other police officers, and that the respondent was entitled to struggle in self defence and that in fact was what he was doing. In any event the police were not, at that stage, acting in the execution of their duties. With respect to all the findings of fact made by the Magistrate with respect to all three charges, such were open on the evidence and the fact that the Magistrate had the benefit of hearing and observing the witnesses means that this court must give “due deference and [attach] a good deal of weight to the Magistrate’s view.”^[15]

Magistrate’s award of costs

66. [66]
    Section 158 of the Justices Act 1886 gives power to a Magistrate to make an award for costs in favour of a defendant when a complaint is dismissed.

67. [67]
    Section 158A of that Act provides that an order for costs against a police officer may only be made if the Magistrate is satisfied that it is proper to do so. Section 158A(2) provides that in deciding whether it is proper to make an award for costs a Magistrate must take into account all relevant circumstances, including the nine examples outlined within that subsection.

68. [68]
    Section 158B of that Act provides that in deciding what costs are just and reasonable, a Magistrate may award costs only pursuant to the prescribed scale of costs, however a higher amount for costs may be allowed if the Magistrate is satisfied “that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case”.

69. [69]
    When the application for costs was made immediately after the dismissal of the second and third charges, the Magistrate was provided with an itemised list of professional costs and expenses for the effectively three day hearing in Cooktown. Counsel and solicitors had to travel from Cairns to Cooktown, as indeed did the Magistrate, there being few if any, legal practitioners in practice in Cooktown. The actual costs amounted to a total of $52,918.98.

70. [70]
    The amount prescribed under the scale of costs for the trial would be a maximum of $3,250. The Magistrate awarded the higher amount of $32,000.

71. [71]
    During the argument for costs before the Magistrate, the police prosecutor effectively conceded that it was open to the Magistrate in the circumstances of the case to make an award for costs. The Magistrate noted that the police had been found to use excessive force and that was an issue for determination that had been obvious to him from the outset. He noted that in those circumstances the matter was important, not only to the respondent himself, his friends and his relatives, but to the local community generally. The Magistrate stated, “Enforcement of law in small communities is of a great interest to those communities.”

72. [72]
    The Magistrate also accepted that the case was somewhat complex and there were multiple and varied subtle issues raised by the defence, all of which, in his view, were meritorious and worthy of consideration. In the Magistrate’s view therefore, an amount of costs exceeding the scale was justified. Although the legislation offers little guidance as to how an amount of costs in excess of the scale is to be calculated, the Magistrate concluded that an amount of approximately 60% of the actual costs was a reasonable amount.

73. [73]
    The appellant complains that the Magistrate did not consider the application of s 158A of the Justices Act and in his reasoning appeared to be viewing the award of costs as some sort of penalty against police for their conduct rather than simply a compensation for the respondent.

74. [74]
    In its Notice of Appeal the appellant alleges the respondent was legally aided. It is clear from the transcript that this was not the case and in any event that fact is of little or no relevance in the circumstances.

Conclusion

75. [75]
    Although the Magistrate did not specifically refer to all the matters outlined in s 158A(2) of the Justices Act, he was referred to those matters in submissions and in light of the concession by the prosecution that costs could be awarded, it was not necessary that he consider s 158A(2) in minute detail. He clearly had the provision in mind. Having regard to all of the relevant circumstances of the case, it could not be said to be improper to make an order for costs.

76. [76]
    Having regard to the length of the trial, the legal argument that occurred during it, the issues raised, and the importance of the case, not only to the respondent but to the wider community, particularly in the context of police dealings with indigenous people, the Magistrate was correct to find that it was just and reasonable to award an amount of costs higher than that provided for in the scale. The actual costs incurred by the respondent were high but not unreasonable in the circumstances, particularly given the geographical location of the trial court.

77. [77]
    In the circumstances, the amount of costs awarded was just and reasonable and the appeal in this regard should be dismissed.

78. [78]
    Both appeals are dismissed.