Carmichael v Upton[2011] QDC 262

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24 November 2011 charges of assaulting police & obstructing police were dismissed after a trial in the Magistrate’s Court. Defence counsel then made an application for costs.  The application was adjourned to a later date. Subsequently, the magistrate dismissed the costs application for want of jurisdiction.

2. [2]
   The complainant, Constable Drew Carmichael has appealed against the order of dismissal. The defendant, Mr Upton, has appealed against the order refusing the defence costs. The appeal against the dismissal order must be determined first.

The conviction appeal D2/2011

3. [3]
   By virtue of s 223 of the Justices Act 1886 (Qld) this is an appeal by way of a rehearing on the record.    The sole ground for appeal against the dismissal is that the magistrate erred in fact and law when determining that the elements of the charges were not made out. 

The circumstances of the charges

4. [4]
   The primary facts were not disputed on appeal. Two police officers had been sent to the small settlement of Curtis Island to maintain law and order over the New Year period.  They were accommodated in the shed that housed the island’s fire truck. Late on New Year’s Eve, the police tyres were deflated. The investigation led to Mr Upton’s house.   The suspect, Charlotte Bush was amongst a group of guests.

5. [5]
   The situation quickly turned volatile. A group had just returned from the hotel. Police were jostled and menaced. Not surprisingly, they left prematurely out of fear for their safety. Before they left, Sgt Wilkinson arrested Charlotte Bush. She was placed in the police car and taken back to the fire shed.

6. [6]
   There was no challenge at trial to the lawfulness of her arrest. The focus was on the circumstances in which Ms Bush was questioned. She was not warned of her right to silence or her right to have someone with her. She was asked about the damage to the police car on the short journey to the shed. It is common ground that the questioning of Ms Bush was therefore in breach of ss 418 & 431 of the Police Powers and Responsibility Act 2000 (Qld) (PPRA).

7. [7]
   Other people began to gather at the fire shed within a minute of the police returning to it. Mr Upton was one of a group of 15 to 20 people. They were in an angry mood when they confronted the police. There was a lot of yelling. The area was dark apart from limited torch lighting.

8. [8]
   The complainant, Constable Carmichael, had Ms Bush in his direct custody. He endeavoured to explain to the crowd why Ms Bush could not leave the station. As he was doing so, Mr Upton began yelling in the officer’s face. He put himself between Constable Carmichael and Ms Bush and thereby caused the constable to loose direct control of Ms Bush. This was the basis of the obstruction charge. Mr Upton then shoved and hit Constable Carmichael in the head, knocking the attached torch light from his hat. This was particularised as the assault on a police officer.

The decision of the Magistrate

9. [9]
   Each charge required proof that Constable Carmichael was acting in the performance of his duties at the time of the assault or obstruction. The magistrate accepted the police evidence that at the time of the defendant’s actions, Constable Carmichael was attempting to calm the mob to preserve the peace and also trying to maintain custody of Ms Bush in the face of the crowd’s intention to take her away. The magistrate found that Sgt Wilkinson’s arrest of Ms Bush had been lawful. More specifically the magistrate found that Sgt Wilkinson had arrested Ms Bush to establish her identity and to question her about the damage to the tyres, and that he did so because he reasonably suspected her of committing the offence. The arrest therefore complied with s 365. His Honour accepted that the presence of the mob at the fire shed caused police to fear for their safety and the safety of Ms Bush in their custody. However, he went on to find that at the time of the defendant’s conduct, Constable Carmichael was acting outside of the execution of his duty. The magistrate dismissed the charge for want of that essential element. In so doing, His Honour adopted the defence submission that the police questioning of Ms Bush outside of the PPRA rendered her continued detention unlawful.

The issue on appeal

10. [10]
    The appellant submits that the unlawful questioning did not render the arrest and detention of Ms Bush unlawful. Ms Clohessy argues for the complainant that while ss 418 and 431 of the PPRA are mandatory steps to be taken before questioning suspects about indictable offences, non compliance did not render the lawful arrest unlawful. The Act did not make the preconditions to questioning preconditions for a lawful arrest. The effect of the breaches was to simply enliven the discretion to exclude the evidence of questioning as against Ms Bush. The breaches bore no relevance to the defendant’s conduct. Alternatively, the appellant submits that even if Ms Bush was unlawfully detained, Constable Carmichael was still performing his lawful duty of attempting to preserve the peace at the time of the alleged assault and obstruction.

11. [11]
    The concept of acting in the execution of a police officer’s duty at common law was defined in Re K (1993) 46 FCR 336:- “the effect of all of those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his function as a police officer and continues to act in the execution of that duty for as long as he in engaged in pursuing the task  and until it is completed, provided he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.”    In that case, the police officers were acting in performance of a general duty to preserve the peace and they were “not performing any unlawful activity which would have taken them out of the ambit of their general and specific duties.”   It was said that the offence of assaulting a police officer acting in the execution of his duty “should not be construed in any narrow or constricted sense but should be given broad operation to protect the performance of all police duties, not just some.”

12. [12]
    Mr Douglas SC accepted that the only live issue on appeal was whether the breaches of ss 418 and 431 of the PPRA rendered the continued detention of Ms Bush unlawful. He referred to Coleman v Power (2004) 220 CLR 1, where McHugh J said at 58, “a charge of assaulting a police officer in the execution of his or her duty will fail when the officer has engaged in unlawful conduct such as an unlawful arrest”.  In such circumstances the target of the unlawful arrest has the right to reasonably resist it.   Mr Douglas submits, in effect, that unlawful questioning rendered Ms Bush’s continued detention unlawful and the unlawful detention of Ms Bush tainted the whole of Constable Carmichael’s conduct such that he was not acting in performance of his duties when assaulted by the defendant.  The alternative submission is that the defendant’s “conduct was engaged in causally to the police conduct” and therefore a legitimate response to the unlawful arrest.  One difficulty with the secondary submission is that the defendant could not have been aware of any impropriety in the questioning of Ms Bush.  It had happened out of his presence and in the minutes before his arrival.   This means the defendant, like others in the group, was simply seeking to force Ms Bush’s release from what had been, even on the defence case, a lawful arrest.  The defendant’s conduct was therefore in direct response to a lawful arrest.  It could not be viewed as a reaction to the unlawful questioning.

13. [13]
    The lawfulness of detention may fluctuate: Michaels v R (1995) 184 CLR 117 at 126.  The Queensland Court of Appeal recently concluded however that an unlawful assault by police during a lawful arrest would not make the arrest unlawful.  The defendant in R v Hawton [2009] QCA 248, like Mr Upton, was charged with assaulting a police officer acting in the execution of his duty.  Mr Hawton had resisted arrest and 4 officers acted to restrain him.  The injuries he suffered were substantially worse than those of the police complainants and the defence case was that he had done no more than respond to excessive force by the police.  Delivering the judgment of the court Muir JA said at [21]:- “the use by such police officers of excessive force, although depriving them of the protection s 254 of the Code, would not alter the character of their general conduct.  The use of excessive force by arresting officers would not produce the result that the arrest itself was unlawful and not effected in the exercise of their duty.”

14. [14]
    The broad functions of the Queensland Police Service are set out in section 2.3 of the Police Service Administration Act 1990 (Qld).  They include the “preservation of peace and good order” and “the detection of offenders and the bringing of offenders to justice”. 

15. [15]
    The PPRA is a code. Section 5 makes it clear that Parliament intends “that police officers should comply with this Act in exercising powers and performing responsibilities under it".  The same section identifies that any breach by a police officer of an obligation under the PPRA will constitute, at least, a breach of discipline.  The power to arrest without warrant is conferred by s 365.  An officer may make the arrest if he reasonably suspects the person has committed an offence and that it is reasonably necessary to do any one of a list of things, including to make enquiries to establish the person’s identity or to obtain evidence.  In the case of an indictable offence, an officer may arrest the person he reasonably suspects has committed it for questioning.  These are the various grounds on which Ms Bush was arrested.  It is accepted that they were valid grounds for her arrest. The PPRA allows police to detain the person arrested for a reasonable time to investigate or question her about the offence (s 403) but for no longer than 8 hours without an extension order (s 377).    Ms Bush was in police custody for a very short time.  The duties of police after an arrest are set out in Part 6 of Chapter 14 (ss 391 – 395).   The defence does not rely upon any breach of Part 6.  The sole criticism of the police conduct related to the breaches of ss 418 and 431.  Those provisions are set out in Part 3, Division 4 of Chapter 15, which is headed: “Safeguards ensuring the rights of and fairness to persons questioned for indictable offences”.   They are mandatory provisions which apply only to questioning for indictable offences and whether the suspects are under arrest or not.   Questioning in breach of those provisions does not of itself render the suspect’s answers inadmissible. The PPRA does “not purport expressly to govern the admissibility of evidence.”   The common law discretion to exclude evidence is unaffected: s 10.    The nature and circumstances of the breach however will be relevant to the usual tests for admissibility of confessions and the discretion to exclude them.  In the case of Ms Bush, non compliance with ss 418 and 431 would go to the preliminary question of whether any confession was voluntary. Furthermore, “(i)llegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness… The provisions of the PPR Act …do not purport expressly to govern the admissibility of evidence, but the authorities suggest that they are to be "regarded as a yardstick against which issues of unfairness (and impropriety) may be measured".^[1] 

16. [16]
    The Act identifies questioning as a lawful basis for arrest without warrant. It empowers police to take a reasonable time to conduct the questioning. There is no express condition that the lawfulness of the continuing detention is dependent upon compliance with chapter 15. I conclude that, like the admissibility of an impugned confession, the issue falls to be determined by reference to the general law taking into account the individual circumstances of the police conduct, the nature of the breach and the context.

17. [17]
    The initial arrest of Ms Bush was not challenged. It is accepted that it was lawful. The time from her arrest to the arrival of the mob at the shed was very short, and could be measured in minutes. The police were entitled to question her but they did so in an informal way without complying with the statutory requirements designed to protect the rights of suspects being questioned about indictable offences. They did not inform her of her right to silence and they did not inform her of her rights to have family or a friend or a lawyer present. As a result, her answers would probably be inadmissible against her. The officers each recorded the conversation. The facts do not have the flavour of deliberate misconduct. In fact they are more consistent with an intention to investigate and release, rather than charge. The suspected offence, wilful damage of the tyres, was at a low level of criminality. At the same time, it went to the authority of the police and their ability, as the only police on the island, to respond quickly to an emergency. I am satisfied that the police breaches of the PPRA, when viewed in context did not change the essential character of Constable Carmichael’s conduct. They did not make the continued detention of Ms Bush unlawful. Constable Carmichael was performing his lawful duty in his efforts to protect Ms Bush in custody and preserve the peace. In the course of those activities he did not do anything outside of the ambit of his duty. It follows that Constable Carmichael was acting in the performance of his duties at the time he was hit and obstructed by the defendant. The magistrate erred in his finding to the contrary. He should have convicted the defendant of both offences because he found all other elements of both charges proved.

18. [18]
    The appeal against the orders of the dismissal is allowed. The Magistrate’s order of 24 November 2011 dismissing the charges is set aside. Convictions are entered for the offences of assaulting a police officer in the performance of his duties and obstructing a police officer in the performance of his duties, contrary to s 790(1) of the Police Powers and Responsibility Act 2000 (Qld).

19. [19]
    I make no order as to costs.

20. [20]
    The defence seek an adjournment of the sentence. Accordingly, the matter is remitted back to the magistrate for sentence.

21. [21]
    Appeal of the defendant D1/2011

22. [22]
    This is the defendant’s appeal against the decision not to award him costs. The various grounds of appeal complain of the decision of the magistrate to adjourn the defendant’s costs application at the time of the dismissal order, thereby inadvertently surrendering the power to determine the issue. It was only after the adjournment that His Honour realised that costs against the police could only be awarded as part of the order of dismissal and not afterwards.^[2] 

23. [23]
    The merits of any claim to costs are predicated upon the correctness of the order of dismissal. Given that the defendant has now been convicted of the offences, the defendant has no claim to costs below.

24. [24]
    The appeal is dismissed.

25. [25]
    The defendant is to pay the costs of the Queensland Police Service of and incidental to the appeal in accordance with the scale.