Scanlon v Queensland Police Service
[2011] QDC 340
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- Unreported Judgment
- Scanlon v Queensland Police Service[2011] QDC 340
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Scanlon v Queensland Police Service[2011] QDC 340
Scanlon v Queensland Police Service[2011] QDC 340
[2011] QDC 340 | |
DISTRICT COURT | |
APPELLATE JURISDICTION | |
JUDGE ANDREWS SC | |
No 2 of 2010 | |
JON SIMON SCANLON | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
BRISBANE | |
DATE 20/09/2011 | |
JUDGMENT |
HIS HONOUR: I have before me an appeal under section 222 of the Justices Act. It is an appeal by way of rehearing on the evidence. An appellate Court hearing such an appeal has power to draw inferences from the primary facts, including facts found and facts not disputed.
I am obliged to review the evidence, to weigh the conflicting evidence and to draw my own conclusions but in so doing, I am bound to afford respect to the decision of the Magistrate and to bear in mind any advantage the Magistrate had in seeing and hearing the witnesses give evidence.
The decision appealed from was delivered on the 25th of August 2010 in the Magistrates Court at Longreach. Essentially, his Honour ultimately found that there was an offence committed against The Summary Offences Act 2005 section 6 of public nuisance. The essential facts which are disputed are that the appellant was alleged to have loudly said, with members of the public present, in addition to police officers, some words. The words themselves were not the subject of a dispute. The dispute is as to whether the words were offensive, whether they were heard by members of the public, whether they were offensive in the circumstances. The words were "I fucking work for you cunts."
The evidence relating to the essential matters I will now summarise. There were only three witnesses; two police officers and the appellant. Constable Zannier gave evidence that he saw the appellant staggering across Duke Street in Longreach. He saw a car driving on that road and said, "It had to brake, like move around him." The police who were in a vehicle, pulled up behind the appellant and Constable Zannier said he was wanting to check if the appellant had some identification.
He said that the appellant produced a Queensland driver's licence and said, "I can't believe this. I fucking work for you cunts." The transcript shows that Constable Zannier was asked, "What did you say to him then?", and answered, "Well, in relation to his language and what would happen if he continued with that."
He was asked, "What did you say then or what did the appellant say then?", and Constable Zannier answered, "Can't believe this is happening. I fucking work for you cunts.", again.
The evidence was that the appellant was described as intoxicated, had slurred speech, bloodshot eyes and was having trouble standing still. Constable Zannier gave evidence that at the time he was talking to him and in response to the question of, "Who else was around?", the answer given was, "There was a lot of people coming home from the show. There was a lot of cars, lot of motorists, thousands, residential houses close by. I informed him if he continued what would happen. He continued with, "I can't believe this is happening. I fucking work for you cunts." I then placed
Mr Scanlon under arrest for public nuisance due to demeanour and behaviour."
Constable Zannier was asked, "Do you recall how many members of the public or who or anything like that?", and answered, "Just general persons coming from the - unknown amount of people." The evidence was that this occurred at 11.20 p.m.
He was asked by the appellant, "How close was the public to me?", and Constable Zannier answered, "Approximately 20 to 30 metres.", and continued, "Approximately 10 to 15 people."
He was asked, "Do you remember whether there were women and children present there that night?", and he answered, "Yeah. There were women and children present." It was not suggested to him that he was mistaken about the number, gender and otherwise about his descriptions.
It was put to him by the defendant, "When I spoke to you, I do not recall shouting at you in a very loud manner in which they would hear. I believe that I did say those words to you but I do not believe those people heard."
In further evidence, Constable Zannier was asked about an answer he gave where he used the word "yelling". He was asked, “Mr Scanlon, sorry, was yelling?", and answered, "Yes." He was asked, "Did you see anyone stop and look?", and answered, "Yes. Yeah. Members of the public stopped to have a look."
Sergeant Hanlon also gave evidence that the appellant was sort of staggering, that he saw a car brake and go around. He gave evidence that the appellant said on numerous occasions, "I work for you cunts." He gave evidence that he kept using the word out loud. He said there were numerous people walking from the showgrounds. He said there were people on the other side of the street as well at the time and that the appellant kept saying this over and over and that he appeared very, very intoxicated at the time.
He recalled that Constable Zannier had said to the appellant or had given him a warning to stop his language, that there were people walking and they could hear him and he just kept repeating, "I work for you cunts." His evidence was that the appellant kept saying the word over and over again.
Sergeant Hanlon gave evidence of what he was thinking at the time, namely that he was embarrassed by the fact that the appellant was saying, "I work for you.", and he explained that there were people looking over as he was saying it.
He gave evidence that the appellant was warned by Constable Zannier and he kept doing it over again and again and that he saw people, obviously walking nearby and that the arrest took place because, "We didn't want him to continue to yell out."
In cross-examination, Sergeant Hanlon's evidence in response to the question, "How many people were present, members of the public, while I was?", and he answered, "My, there was a heap. So, there would be - there would be people leaving all over the place from the rodeo, including myself, so my best guess, I would say, 20 - 20 to 30 people."
When cross-examined about the number of times that the words were repeated, Sergeant Hanlon was asked, "Can you recall how many times?", and answered, "It was a lot. So it was more than a couple mate and that's - but as I said mate, we kept giving you warnings and you continued your language and you were arrested."
To the question, "So how loud was I [indistinct]?", Sergeant Hanlon answered, "Loud. Loud enough for other people to hear."
Then came the question, "And how far away were those people would you estimate?", and the answer, "Twenty to 30 metres but then some people were then a lot closer, so on the other side of the road and walking that way, so, you know, I can't say how far they were 'cause everyone was - there was a lot of people."
When asked how was the defendant speaking and whether it was in a normal voice, Sergeant Hanlon answered, "No. He - he was - I'd say he was angry and yelling, so the way he was speaking."
The defendant conceded that he'd consumed Fourex Bitter and his evidence was that he consumed eight cans over a period from five in the afternoon until 11.30 in the evening. At the time when he was crossing at Duck Street, he gave evidence that,
"There was many people around me crossing. Also, crossing the road to get to - get to town to either go home or continue that night but the - I got to the other side of the road and I was [indistinct] by the police and where I was with the police there were no people definitely within earshot that - that I recall. There were people crossing the road going about their business as the police were - were speaking to me. There were people looking over but they were only looking over because the police were obviously arresting someone and just out of natural curiosity."
He gave evidence:
"The words I said in a normal talking voice. There was frustration in my voice but I did not shout at them and it was definitely not within earshot of other people and I understand that it did offend the officers but no members of the public could have - could have heard that, in my opinion."
And at page 1-19 he gave the three answers about his state at the time of the conversation with the police, "I was frustrated.", "I was intoxicated.", "I was intoxicated but I was not loud."
The grounds of appeal are not those which were filed. The grounds of appeal are set out, for the most part, in the outline of argument on behalf of the appellant. They are now supplemented by an oral ground and one of the grounds was abandoned. I will recite them:
- The learned Magistrate relied on and/or failed to exclude inadmissible evidence.
- Disorderly conduct was not particularised in the Crown case and therefore it was not open to the learned Magistrate to find the appellant's conduct was disorderly.
- The learned Magistrate did not provide adequate reasons for his finding of disorderly conduct.
- The evidence before the learned Magistrate did not prove beyond a reasonable doubt that the appellant behaved in an offensive way.
And oral ground 5 was substituted for the original. It is:
- The appellant was not given adequate particulars of the allegations against him. The appellant was not given an opportunity to adequately prepare for his case due to the lack of particulars despite his request.
- The evidence before the learned Magistrate did not prove beyond a reasonable doubt that the appellant's behaviour had interfered or was likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public.
- The evidence of the learned Magistrate did not give adequate consideration to whether the appellant's alleged behaviour constituted a public nuisance in light of the surrounding circumstances.
- The appellant did not receive a fair trial.
The Summary Offences Act 2005 section 6 subsections 2 and 3 are the sections relied upon. They provide:
"6(2) A person commits a public nuisance offence if -
- (a)The person behaves in
(i) a disorderly way; or
(ii) an offensive way; or
...; and
- (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; ...
(5) Also, in a proceeding for public nuisance offence, more than one matter mentioned in subsection (2)(a), may be relied on to prove a single public nuisance offence."
The learned Magistrate made certain findings on matters of fact. The grounds of appeal do attack the propriety of the findings of fact in some respects in that there is an argument that some of the findings were made on the basis of inadmissible evidence. I will deal with those arguments separately but bearing in mind my obligation to have regard to the findings of fact made by the Magistrate and to accord a certain respect to them, I should set out the particular findings which seem to me to be in issue.
There is no doubt that the words were said. That's not disputed by the appellant. His Honour below found:
"Both police officers testified that the words were spoken loudly. The evidence of Constable Zannier was that Mr Scanlon was yelling. Mr Scanlon claims that he did not state the words loudly, although he acknowledged that he had used the words that the police officers claimed had been spoken. He was extremely intoxicated and there is no evidence of the police officers being other than sober. In relation to the volume at which Mr Scanlon expressed the words, the evidence of Constable Zannier and Sergeant Hanlon is accepted as the most reliable."
On another significant piece of evidence, namely the issue of whether members of the public, other than the two police officers, would have heard the words used, his Honour found:
"Duck Street is a public place and evidence satisfied the Court beyond a reasonable doubt that other members of the public, including the two police officers were, in fact, at that place on the 14th of May 2010 when Mr Scanlon used the words spoken."
I do not doubt that in making that second finding his Honour was doing more than simply finding that members of the public happened to be in Duck Street. His Honour was finding that they were in the place where Mr Scanlon was when the words were spoken. It is obvious that it is a finding that has to do with the issue of whether the words were capable of being heard by members of the public.
That conclusion seems to me to be an obvious inference from the fact that his Honour had nicely identified that Mr Scanlon claimed that he had not spoken the words loudly, and that the police officer's evidence was to the effect that he was yelling. It is also an obvious inference from the fact that his Honour discussed the likelihood of the behaviour interfering with the peaceful passage through or enjoyment of the public place by members of the public. In that discussion it seems a clear inference that his Honour was not speaking simply of the police officers when referring to "a member of the public".
Subject to the admissibility of the evidence given by the police officers as to the proximity of members of the public at the time the words were spoken, subject to the admissibility of the evidence of the police officers that the words were spoken loudly and were yelled, and subject to the admissibility of the officers evidence that the words were loud enough for other people to hear, I regard the conclusions as being supported by the evidence and I should respect the decision of the Magistrate and bear in mind his Honour's advantage in seeing and hearing the witnesses give their evidence, and so would not disturb those findings.
This brings me to the grounds of appeal. The first is that the learned Magistrate relied on and/or failed to exclude inadmissible evidence. One matter of complaint was that the prosecutor asked Constable Zannier, "How did you feel when the language was used towards you?" and the evidence was given that he felt offended. Something similar was asked of Constable Hanlon. It is accepted by the respondent that the proper test when considering questions of offensiveness is not a subjective one, but an objective one.
In this case it is not urged upon me by either party that the subject of opinions of the police officers as to the offensiveness or otherwise of the language is relevant. Accordingly, I accept the submission that it is irrelevant evidence in this case. It does not appear to me that the Magistrate took it into account in forming conclusions on matters of fact or on findings about the offensiveness of the language, a matter about which I must make my own conclusions.
Another item of evidence objected to is under the heading speculative evidence. It seems to me that of all the examples cited by the appellant under the heading of 'speculative', only one appears to be relevant to any finding of fact made by the Magistrate, and that is the evidence of Sergeant Hanlon that, "There was people walking and they could hear him, and he just kept repeating," the words. Sergeant Hanlon also said when asked, "How loud was it?" "Loud enough for other people to hear."
It's argued that that was speculative and thus inadmissible. I inferred that the submission might be otherwise categorised that it was opinion evidence and thus inadmissible. Those arguments were not raised below. Had they been raised below it may have been argued. It is not obvious that those matters were both inadmissible as the exclusory rule which relates to inadmissible evidence of opinion is, as I understand it, that it is inadmissible to express opinion that calls for special skill or the knowledge of an expert.
It was at least arguable that in matters of whether someone was standing close enough to be able to hear, that the witnesses may have been entitled to express that opinion, but the fact is it was not raised below. Had it been raised below, there was not just the opportunity for argument, but the opportunity for the witnesses to explain the bases upon which they expressed their opinions about such matters.
Had the objection been taken, Hanlon might have explained the basis for his opinion that the people walking could hear him, but he was not given that opportunity. Had the objection been taken, he may have been able to explain the basis for his opinion that the words were loud enough for other people to hear. Because the objection was not taken, again, he did not have that opportunity. More importantly, the prosecution did not have the opportunity to repair, if the need to repair had arisen.
It is unfair to the prosecution for this point to be raised for the first time on appeal now. It is argued for the appellant that this evidence caused the appellant at the hearing to suffer an injustice. When weighing matters of fairness and in effectively applying to the appeal court to take matters of fairness into account, the appeal court should also take into account any unfairness that might be done to the appellant's opponent. I regard it as too late to raise objection to the evidence of Sergeant Hanlon, to which I have just referred.
There was, however, in addition to that evidence of Sergeant Hanlon, to which specific objection was taken, evidence that there was yelling, that people looked over and that there were people more proximate than 10 to 15 metres. I have recited the evidence. It was an inference capable of being drawn by his Honour that the words if spoken loudly were capable of being heard by persons from that distance.
It is argued that although the learned Magistrate did not expressly state that he took the extraneous matters into account, there is at least a perception that these matters may have coloured his decision. I do not accept that they coloured his findings of fact on the two material matters to which as I have referred. Insofar as this is a rehearing, it matters not that they may have affected his decision on other matters; that is, on matters that I am obliged to decide.
The next ground was that disorderly conduct was not particularised by the Crown. It is a fact that the Crown did not expressly advise that it would seek a finding that MrScanlon had behaved in a disorderly way. What the prosecution did was to provide to Mr Scanlon a QP9, which read:
"At approximately 11.20 p.m. on Friday the 14th day of May 2010 police from Longreach Police Station were conducting mobile patrols of the Longreach Showgrounds. As police were entering the showgrounds they observed an intoxicated Caucasian male leaving the showgrounds walking in a westerly direction along Duck Street. Police observed the intoxicated male swaying across the road in a dangerous manner, narrowly missing contact with vehicles driving along Duck Street. Due to the intoxication levels displayed by the Caucasian male, police intercepted the male along Duck Street to check on his welfare. The intoxicated male provided a Queensland licence identifying as Jon Simon Scanlon, 12/7/1978, the defendant in this matter.
The defendant was displaying signs of indicia, such as slurred speech, bloodshot eyes, unsteady on feet and smell of liquor on his breath. Whilst police were conducting checks on the defendant the defendant has become verbally abusive towards police, yelling out, "I fucking work for you cunts." Police then cautioned the defendant in relation to his offensive language towards police, however the defendant again yelled at police, "I fucking work for you cunts.” Due to the actions of the defendant members of the public walking along Duck Street have had to walk over to the other side to be able to continue on. The defendant was subsequently arrested and transported to the Longreach Watchhouse and released on bail to appear in the Longreach Magistrates Court on 18 May 2010 at 9.30 a.m.
Note to prosecutions: The area in which the defendant was yelling profanities is often frequented by moderate levels of pedestrian and vehicular traffic, and is an area clearly visible to members of the public with overhead street lighting."
On the 10th of August 2010, as appears in the affidavit of Jon Simon Scanlon sworn on the 21st of April 2011, Mr Scanlon emailed the Queensland Police requesting, among other things, that they abandon the charge against him and submitting that the prosecution will fail on the grounds:
"I was not acting in an offensive, disorderly or threatening manner, and my behaviour did not and was not likely to disturb the peaceful passage of the public."
The next day Mr Scanlon again emailed to the senior sergeant among other things, "I am currently starting my outline of arguments and I ask that you particularise the charge." No letter in reply supplying particulars was provided to MrScanlon. When the matter came on for hearing his Honour asked Mr Scanlon if he understood the charge, and Mr Scanlon said that he did. Mr Scanlon did not ask for any particulars at the hearing.
This leads me to the second and fifth grounds of appeal, which are related. The second is, disorderly conduct was not particularised in the Crown case and, therefore, it was not open to the learned Magistrate to find the appellant's conduct was disorderly; and (5), the appellant was not given adequate particulars of the allegations against him. The appellant was not given an opportunity to adequately prepare for his case due to the lack of particulars, despite his request.
It is clear from the QP9 that the appellant was given details of the allegations against him; that is the allegations of fact. It is also the case that he was not told that he was to meet a charge of disorderly conduct. It is the case that the prosecution did not ask for findings of disorderly conduct, and the first occasion that disorderly conduct was mentioned was by his Honour in his Honour's reasons, and I can say with respect to the decision that his Honour did not indicate whether his Honour had in mind the loud use of words in proximity to the public, or whether his Honour had in mind something else. His Honour said within the reasons:
"I am satisfied beyond reasonable doubt that the behaviour of Mr Scanlon in Duck Street, Longreach, at 11.20 p.m. on Friday 14 May 2010 was also disorderly. It was behaviour that was not in all the circumstances orderly."
His Honour made quite significant findings and descended into a deal of particularity with his discussion on what was offensive, but there was no discussion which sheds light on the issue of “disorderly”, and so the significance of that is that I cannot determine whether there were any particular facts that his Honour has found in relation to the finding of disorderly.
It was argued for the prosecution, that is for the respondent before me, that what is required of the prosecution is a clear statement of the transaction upon which it relies to support the allegations against the accused, and it was argued that the circumstances of the offending are clearly disclosed in the police statement of facts that the categories of behaviour that the conduct falls into, if any, is a question for determination by the tribunal of fact, and that there is no obligation on the prosecution to categorise the behaviour particularised as being of a particular class, such as disorderly, or offensive, or threatening, or violent, and that is for the tribunal of fact to determine by an analysis of the evidence the proper application of the law.
As a general matter I would ordinarily accept that, although 'offensive' is so very different from 'threatening' and 'violent', it seems to me that it would have been appropriate to have put the appellant on notice if 'threatening' or 'violent' were intended as matters upon which it was going to be the prosecution's case to seek a finding.
If it was intended that 'disorderly' was to involve something other than the use of the indecorous words loudly spoken, it seems to me it was appropriate for it to be particularised. The appellant concedes that it was known to the appellant that offensive behaviour was in issue, and from the intelligently crafted letters sent by email by Mr Scanlon to the police and from section 6 of the Summary Offences Act, I have no doubt that in addition to understanding that behaving in an offensive way was a matter in issue, the appellant must have known that it was also in issue that the prosecution was obliged to persuade the Magistrate or the Court that the person's behaviour interfered or was likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public.
I am satisfied that by the provision of the QP9 the appellant was in a position to fairly understand that was the evidence that was to be led and from the concession that he knew that the issue was his behaviour in an offensive way and the emails. I reject the notion that he was not able to understand one important issue. The important issue was whether there was in issue that he behaved in an offensive way and that his behaviour interfered with or was likely to interfere with the peaceful passage through or enjoyment of a public place by a member of the public.
My conclusion about that is reinforced by the evidence that was the subject of cross-examination by the appellant below. It was clear below that he regarded it as an issue whether the police were offended, whether other members of the public could hear so as to be offended by the words, and the other members of the public who were in issue were those who were present on the street at the time, as opposed, for example, to those who may have been in residential dwellings.
I am not bound by the Magistrate's finding that the conduct was disorderly. Because I do not regard the particulars as having adequately put the defendant on notice, I will not myself make a finding as to whether the conduct was disorderly.
The fourth ground of appeal is that the evidence before the learned Magistrate did not prove beyond reasonable doubt that the appellant behaved in an offensive way. I am satisfied that he used the words which were conceded. In considering whether he behaved in an offensive way I am aided by subsection 3 of section 6. "A person behaves in an offensive way if a person uses offensive, obscene, indecent or abusive language." In this particular case it seems to me the primary issue is whether he used offensive language.
...
HIS HONOUR: It has been held that for behaviour to constitute a public order offence it must tend to annoy or insult people sufficiently, deeply or seriously to warrant the interference of the criminal law. It is not sufficient that it be conduct which is indecorous, ill-mannered or in bad taste.
For that proposition one can turn to Mesler v. Police [1967] New Zealand Law Reports 437. His Honour below referred also to the case of Green v. Ashton [2006] Queensland District Court 8, a decision of his Honour Judge Skoien. His Honour in that case was considering section 7AA of the Vagrants, Gaming and Other Offences Act, 1931, but the subsections under consideration in that case were remarkably similar to those before me. As his Honour said at paragraph 12:
"Under section 7AA the question whether a person behaves in an offensive way by the use of offensive language must no doubt be judged objectively, otherwise an offence could be committed by saying to a person of extremely delicate sensibilities something which that person found offensive, but which most people would regard as quite acceptable. But in making an objective judgment the surrounding circumstances are surely relevant. Such things as the time and place, the vehemence of the utterance, and relevantly whether the utterance has, would be known by the speaker to have, and is intended by the speaker to have special relevance to the recipient."
The members of the police force who were present will have heard the utterance, but so too will have members of the general public, including according to the evidence, children. While in many matters it is sexist to discriminate between the genders, if it is at all relevant, there was evidence also that there were women present. In any event, it seems to me on the evidence, as accepted by his Honour below, there were within earshot of the yelling of the appellant, members of the public who would have heard his expression.
His Honour Judge Skoien in Green v. Ashton said at paragraph 13:
"One should not overlook the extra effect of the addition of the epithet 'cunt'. While today many erstwhile obscenities may have lost some of their effect because of their frequent use in films, books and general speech, in my opinion that word remains one which would be considered offensive to most people, particularly when used as an abusive expletive."
There is no doubt that the Magistrate was entitled to find that the words were used loudly. There is evidence that they were used at least twice and in frustration. I do not expect that they were delivered quietly and, as was submitted for the appellant, with a view to assisting the police officers.
Since 2006 five years have passed. I have personal experience of having seen two mainstream films in which the word was used. Nevertheless, I regard it as not having lost its ability to be offensive to members of the general public, and I find that in his use of the word at the time and place it was used, and with so many persons likely to be within earshot, Mr Scanlon used offensive language.
The issue of whether he committed a public nuisance depends on his behaving in an offensive way and his behaviour interfering with or being likely to interfere with the peaceful passage through or enjoyment of the public place by members of the public.
I refer now to the case of Couchy v. Birchley [2005] QDC 334, a decision of his Honour Judge McGill again based on the Vagrants, Gaming and Other Offences Act. His Honour, when considering section 7AA, clause 3(a), which provided “without limiting subsection 2, a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language," found in respect to the language in that case, "You're nothing but a racist fucking piece of shit," that if it was offensive, obscene, indecent an abusive, and if it interfered or was likely to interfere with the enjoyment of a public place by members of the public who were within earshot, it is clear that it was the intention of the legislature that an offence be committed.
The same can be said of the current legislation. His Honour in that case said of that language, "In accordance with current community standards it was offensive." His Honour said that in that particular case it would have been open to the tribunal of fact below to be satisfied as a matter of inference that particular behaviour was likely to interfere with peaceful passage through or enjoyment of a public place by a member of the public. In that particular case the evidence was that there were people who were going home from work.
Before me I regard it as a matter about which I can make a finding as easily as might the Magistrate as to whether the conduct was likely to interfere with the peaceful passage through or enjoyment of the public place by a member of the public, and that the Magistrate has no advantage because of having heard the evidence, which I do not as an appeal Judge have.
Bearing in mind the evidence of the proximity of the members of the public who were passing by and able to hear this exchange with the police officers, I am satisfied that the behaviour of Mr Scanlon in repeating the words he used loudly or yelling was likely to interfere with the peaceful passage through or enjoyment or that public place by those members of the public.
There is an eighth ground of appeal that the appellant did not receive a fair trial. Insofar as it may have been unfair to have made findings about disorderly conduct when that was not raised, it seems to me that that does not affect the outcome of this appeal. I dismiss the appeal.
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HIS HONOUR: In the circumstances then I'll reserve the question of costs.
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