Queensland Police Service v Tobane
[2010] QDC 222
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
- Queensland Police Service v Tobane[2010] QDC 222
- Add to List
Queensland Police Service v Tobane[2010] QDC 222
Queensland Police Service v Tobane[2010] QDC 222
DISTRICT COURT OF QUEENSLAND
CITATION: | Queensland Police Service v Tobane [2010] QDC 222 |
PARTIES: | QUEENSLAND POLICE SERVICE Appellant AND RODERICK TOBANE Respondent |
FILE NO/S: | Rockhampton Appeal 1/10, MAG-00023286/09(2) |
DIVISION: | |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Rockhampton |
DELIVERED ON: | 28 May 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 13 May 2010 |
JUDGE: | McGill DCJ |
ORDER: | Appeal allowed. Decision of the acting magistrate on 26November 2009 set aside. Matter sent back to the Magistrates Court at Rockhampton for rehearing before a different magistrate. |
CATCHWORDS: | POLICE OFFENCES – Obstructing Police – elements – intention to obstruct not an element of the offence Police Powers and Responsibilities Act 2000 s 790(1). Criminal Code ss 23(2), 36, 340(1)(b). Dibble v Ingleton [1972] 1 QB 480 – considered. Fitzgerald v Montoya (1989) 16 NSWLR 164 – cited. Iannella v French (1968) 119 CLR 84 – cited. Lenthall v Curran [1933] SASR 248 – distinguished. Lewis v Ogden (1984) 153 CLR 682 – considered. R v Burnell [1966] QdR 348 – cited. R v Lockwood, ex parte Attorney‑General [1981] QdR 209 – considered. Rice v Connolly [1966] 2 QB 414 – considered. Walden v Hensler (1987) 163 CLR 561 – cited. Willmott v Atack [1977] 1 QB 498 – considered. |
COUNSEL: | D.J. Morters for the appellant The respondent did not appear |
SOLICITORS: | Director of Public Prosecutions for the appellant The respondent was not represented |
- [1]The respondent was charged with a summary offence under s 790(1) of the Police Powers and Responsibilities Act 2000 (“the Act”), that on 31 December 2008 at Duringa he obstructed a particular police officer in the performance of the officer’s duties. He pleaded not guilty and a trial was held on 26 November 2009, at the conclusion of which the magistrate dismissed the charge. The magistrate in his findings provided some background to what had happened prior to the time when the police arrived at the place where the offence was alleged to have occurred, but he did not make specific findings about just what occurred thereafter. He concluded by saying, “I am not satisfied that there was an intention on [the respondent’s] part to obstruct the police officers. I think the prosecution case must fail for those reasons and I dismiss the charge against him.”
- [2]The appellant on behalf of the complainant before the Magistrates Court appeals against the dismissal of the charge on the ground that the magistrate erred in law in proceeding on the basis that he had to be satisfied of an intention to obstruct on the part of the respondent in order to convict. It does appear that the magistrate dismissed the charge because he was not satisfied of the existence of that intention. For the appellant, it was submitted that the existence of an intention to obstruct is not an element of the charge created by s 790(1) of the Act, and that the effect of s 23 of the Criminal Code, made applicable by s 36 of the Criminal Code, was that in those circumstances intention, or indeed any other state of mind of the respondent, was not a matter that the complainant had to prove.
- [3]The respondent was represented by a solicitor at the trial in the Magistrates Court. The notice of appeal and outline of argument on behalf of the appellant were served on him, but no outline of argument on behalf of the respondent was filed, nor was any address of service on behalf of the respondent filed, although an extension of time for the respondent to file an outline of argument was allowed at one stage. After that time expired, a notice of hearing was served on the respondent by sending it by ordinary post to his last known place of address. That occurred well outside the 10-day period specified in s 222D(3) of the Justices Act 1886. Service of the notice of hearing in this way was in accordance with the provisions of the Acts Interpretation Act 1954 s 39; it is not necessary for the notice of hearing to be served personally on a respondent. The respondent, however, did not appear on the hearing of the appeal, nor was he represented.
The prosecution
- [4]Section 790(1) of the Act provides: “A person must not assault or obstruct a police officer in the performance of the officer’s duties.” It goes on to provide for a penalty. Subsection (3) provides that in this section: “Obstruct includes hinder, resist and attempt to obstruct.” It may be that, where an attempt to obstruct is relied on as constituting obstruction for the purposes of that definition, the question of the state of mind of the defendant would become relevant, but it is unnecessary to consider that question for the purposes of this appeal because the charge proceeded on the basis that the respondent had in fact obstructed the police officer concerned.
- [5]This is clear from the submissions by the police prosecutor at the trial; it was put expressly that it was the complainant’s case that the respondent had hindered the investigation by the police officer concerned: p 49. The particular acts relied on in the closing address were the physical act of the respondent in getting between the complainant and the person to whom he was seeking to speak while investigating a domestic violence matter, and speaking to both of them, so as to make the police officer’s job harder than it had to be. It was submitted that the defendant’s acts were not accidental acts, and that they did in fact obstruct police by hindering them, by making their job harder than it needed to be, and in those circumstances the elements of the offence had been proved.
- [6]Strictly speaking, the question was not only whether the acts were accidental but whether the event, that is the obstruction of the police, was an event that occurred by accident: s 23(1)(b). That is separate from the question of whether the respondent had an intention to obstruct police. In the present case the magistrate made no findings of primary fact as to what the respondent did, but the complainant’s evidence was that the respondent positioned himself between the complainant and the person to whom he wished to speak for the purpose of conducting an investigation, and that when the complainant asked that person to give his name and address, as he was entitled to, the respondent told that person not to give it to him: p 5. There was on the evidence a factual dispute as to what happened, but on that version of events it was a case of actual obstruction rather than attempting to obstruct.
Discussion
- [7]Section 36 of the Criminal Code makes the provisions of Chapter 5, dealing with criminal responsibility, applicable to all persons charged with any criminal offence against the statute law of Queensland. This includes summary offences created under various statutes: see for example Kehoe v Dacol Motors Pty Ltd; ex parte Dacol Motors Pty Ltd [1972] QdR 59 at 70-74. Although the application of Chapter 5 may be excluded, that will not readily be implied in the absence of express words: Walden v Hensler (1987) 163 CLR 561 at 567. Section 23(2) of the Code provides: “Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or in part, by an act or omission, the result intended to be caused by an act or omission is immaterial.”
- [8]Section 790(1) may be contrasted with s 340(1)(b) of the Code, which provides that “any person who … wilfully obstructs a police officer while acting in the execution of the officer’s duty … is guilty of a crime and is liable to imprisonment for seven years.” The presence of the term “wilfully” in that section makes it similar to English statutory provisions in respect of which it has been held that the offence is committed only if it is shown that the defendant did whatever he did with the intention of obstructing the police officer. In Willmott v Atack [1977] 1 QB 498 Croom-Johnson LJ, with whom the other members of the Court of Appeal agreed, adopted the definition of “obstruct” given by Lord Parker CJ in Rice v Connolly [1966] 2 QB 414 at 419,[1] and concluded at p 505 that it was not sufficient for the prosecution to show that the particular act which amounted to an obstruction was done deliberately, but “there must be something in the nature of a criminal intent of the kind which means that it is done with the idea of some form of hostility to the police with the intention of seeing that what is done is to obstruct, and that it is not enough merely to show that he intended to do what he did and that it did in fact have the result of the police being obstructed.” May J in short additional remarks said that it was clear that “wilfully” in this particular statute imported a requirement of mens rea. His Lordship noted that the word “wilfully” had been inconsistently interpreted in various statutes that defined criminal offences.[2]
- [9]In Lewis v Ogden (1984) 153 CLR 682 the High Court at p 688 said that “wilfully” meant intentionally or deliberately, importing a notion of purpose and doing more than negativing the notion of inadvertently or unconsciously. It seems to me that the analysis in that case was very heavily based on the specific context of the particular provision, a section dealing with contempt of the County Court in Victoria, although as it happens the decision is consistent with other decisions as to the interpretation of that word in the context of other criminal offences. In Gillies “Criminal Law” (4th Ed. 1997) p 759 there is an analysis of three interpretations of “wilfully” in statutory offences, and the conclusion that in more recent times the trend of authority has been to construe it as requiring that the defendant act with mens rea.
- [10]In R v Lockwood, ex parte Attorney‑General [1981] QdR 209 it was held that the word “wilfully” in Chapter 46 of the Criminal Code was also satisfied by proving that the defendant deliberately did an act and at the time that he did it the result charged in the indictment was a likely consequence of his act and he recklessly did the act regardless of the risk, though it was sufficient to prove the existence of an actual intent. In terms the decision was confined to Chapter 46, which does not include s 340. In arriving at this conclusion, the court was influenced by the decision of the High Court in Vallance v R (1961) 108 CLR 56, a decision as to the meaning of the word “intentional” where it appeared in s 13(1) of the Criminal Code of Tasmania. Although Tasmania is a Code state, s 13 is to the opposite effect of s 23(2), in that prima facie it requires intention for criminal responsibility. As a result in respect of that issue that Code is significantly different from the Queensland Code, and accordingly Tasmanian authorities involving that issue provide little assistance in Queensland: R v Knutsen [1963] QdR 157.
- [11]It has been said that the word “wilfully” in the Criminal Code connotes an element of intent in the offence of which it is descriptive: R v Burnell [1966] QdR 348 at 356 per Douglas J. However, in Lockwood (supra) at p 221 his Honour would have modified that statement by adding the qualification that “its denotation varies with the verbal context and the subject matter of the statutory provision.” This was taken from the judgment of Barwick CJ in Iannella v French (1968) 119 CLR 84 where the Chief Justice said at p 94:
“In my opinion, ‘wilful’ connotes intention and knowledge: the problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I have said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence. Further, the word intention itself obscures a difficulty. Thus it is said on some occasions to be satisfied by mere volition to do the specific act in question. But in truth, in my opinion, the word contains in its connotations elements of purpose. It is not merely that the mind goes with the act but that the mind intends by the act to achieve something.”
- [12]In some circumstances the term has been treated as going further and involving intending to do something without lawful excuse: Rice v Connolly [1966] 2 QB 414 at 419, where, however, it was noted that that proposition was conceded by counsel for the prosecution. In that case the real issue was whether, in the absence of any specific statutory requirement to do so, a citizen was obstructing police by refusing to provide his name and address when asked to do so. On the other hand, in Dibble v Ingleton [1972] 1 QB 480 the Court of Appeal held that the approach in Rice v Connolly applied only in circumstances where the obstruction consisted of a refusal to do something which the person was under no legal obligation to do.
- [13]Bridge J with whom the other members of the court agreed said at p 488:
“On the other hand, I can see no basis in principle or in any authority which has been cited for saying that where the obstruction consists of a positive act, it must be unlawful independently of its operation as an obstruction of a police constable under s51. If the act relied upon as an obstruction had to be shown to be an offence independently of its effect as an obstruction, it is difficult to see what use there would be in the provisions of s51 of the Police Act 1964.”
- [14]The terms of s 51 can be conveniently passed over, but one may note that s 340, which makes the wilful obstruction of a police officer an offence, also covers a large number of other matters under the general heading “serious assaults”. In some cases the specific paragraph of subsection (1) includes the word “unlawfully” and in some cases it does not. The obvious inference is that the legislative intention was that in some cases it is necessary to show that what was done was done unlawfully, that is to say without authorisation, justification or excuse, and in some cases it is not necessary to show this, and it is sufficient to prove the specific elements identified in the paragraph. In those circumstances s 340(1) in itself makes the behaviour (with or without any intention) a crime, and hence unlawful. Indeed, the terms of s 790(1) not only provide a penalty for obstructing police but prohibit the obstruction of police. It is therefore made unlawful in the absence of some defence.
- [15]I note that in Fitzgerald v Montoya (1989) 16 NSWLR 164 the New South Wales Court of Appeal held that “wilfully” extended to a requirement of an absence of lawful excuse, although without reference to Rice and essentially by interpreting the relevant statute in the light of its history and purpose. In that case at p 171 it was held that, not only must the act complained of have been done deliberately, but “with the knowledge and intention that it will have the effect of preventing the free passage of someone else without any lawful excuse for so doing.” In my view the reasoning in Dibble is applicable under s 340 and no such limitation is imposed by the word “wilfully” in s 340(1)(b), much less implied in s 790(1).
- [16]There is some authority for the view that the absence of the word “wilfully” in relation to the offence of obstruction is of no consequence. In South Australia a provision of the Police Acts made it an offence to “disturb or hinder any member of the police force in the execution of his duty”. In Lenthall v Curran [1933] SASR 248 NapierJ at p 260 referred to the English authorities in relation to wilful obstruction in order to determine what was required by way of disturbing or hindering, commenting: “I attach no importance to the omission from our section of the word ‘wilfully’. It is manifest that mens rea is implied, and – for the purposes of this appeal – I am content to accept the English cases as authority upon the proper application of s 20(2).” Neither of the other members of the court said anything about the significance of the presence or absence of “wilfully” and the case did not turn on the state of mind of the defendant. It was alleged that the defendant had been giving warning of the approach of police who were seeking to detect breaches of the Lottery and Gaming Acts at a hotel, and the substantial issue was whether it was necessary to show that an offence under those Acts had in fact been committed, or perhaps would have been committed but for the warning given by the defendant.
- [17]I do not regard that decision as authority for the proposition that the word “wilfully” should be implied in s 790(1) of the Act. In my opinion that is contrary to the requirements of the Criminal Code. That mens rea would be assumed in South Australia is understandable; South Australia is not a Code state. It is reasonable to assume a requirement of mens rea in a statutory offence in the common law system: Glanville Williams “Criminal Law – The General part” (2nd Ed. 1961) p 260.[3] But the position in my view is different in Queensland, because of the provisions in Chapter 5 of the Criminal Code, particularly s 23.
- [18]Apart from that, it seems to me to be in no way anomalous that there should be two provisions: s 340(1)(b) in the Criminal Code, which makes it a crime punishable by seven years’ imprisonment wilfully to obstruct a police officer in the execution of the officer’s duty, and s 790(1) of the Act which makes it a simple offence with a maximum penalty of 40 penalty units or six months’ imprisonment to obstruct a police officer in the performance of the officer’s duty. It is reasonable enough that there should be a more severe penalty imposed in circumstances where an offender does a deliberate act with the intention of obstructing the police officer, compared with the situation where the offender merely does a deliberate act which in fact has the effect of obstructing a police officer. I acknowledge, however that the force of that argument is weakened by the fact that both sections also make it an offence to assault a police officer in the execution of the officer’s duty, with the equivalent differences in maximum penalty. Section340(1)(b) is not limited by the word “wilfully” in relation to the assault. The ordinary provisions of the Criminal Code would apply in relation to both offences in respect of the question of assault.
- [19]I was not referred to any Queensland authority on the subject, and have not myself found any authority which touches on the question of whether an element of intention is required for an offence of obstruction under s 790(1). There are a couple of Court of Appeal decisions about what constitutes obstruction,[4] and a larger number of decisions of single judges of this court, on appeals under s 222, but none of them consider this particular question. I was a little disconcerted by the fact that in one[5] there was a reference by the judge to the fact that the respondent, in the position of the prosecutor, had conceded that mens rea was an element of the offence,[6] but his Honour did not express any view himself about the correctness of that position, so I do not regard that as any authority to the contrary.
- [20]In my opinion there is nothing in the terms of the Act to indicate that the ordinary consequences which follow from the applicability of s 36 of the Criminal Code are excluded. It follows from s 23(2) that the result intended to be caused by whatever the respondent did was immaterial, since intention to cause a particular result was not expressly declared to be an element of the offence constituted by s 790(1). Authorities in relation to s 340(1)(b) are not applicable. The effect of s 23(2) is to exclude any requirement of an intention to obstruct in relation to the offence under s 790.
- [21]In those circumstances, it was not necessary for the complainant to show that the respondent intended to obstruct. It appears that the charge was dismissed because of a failure on the part of the complainant to prove something the complainant did not have to prove. That was an error, indeed an error of law, and it follows that the appeal should be allowed and the decision of the magistrate set aside.
- [22]Unfortunately, because of the conflict of evidence and the failure of the magistrate to make findings as to what actually happened, it is not possible for me to determine what ought to have been the outcome in the light of the evidence and the findings of primary fact made. I cannot resolve unresolved issues of credibility. In those circumstances the matter will have to be tried again. Fortunately there is now a power to send the matter back to the Magistrates Court for rehearing,[7] and I will so order. In the circumstances I think that it would be better for the rehearing to be by a different magistrate.
Footnotes
[1]“obstruct … is the doing of any act which makes it more difficult for the police to carry out their duty.”
[2]That case involved someone who was seeking to act as a mediator or peacemaker but in a way which in fact had obstructed police.
[3]See also He Kaw Teh v R (1985) 157 CLR 523 at 528-9, Manning v Cory (1980) 142 CLR 342.
[4]Courtney v Thomson [2007] QCA 49; Cox v Robinson [2000] QCA 454.
[5]Charrington v Korac [2008] QDC 328, see p 13.
[6]Under Queensland Law, whatever the elements of the offence, they do not include mens rea.
[7]Justices Act s 225(2).