Plummer v Queensland Police Service
[2012] QDC 168
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- Plummer v Queensland Police Service[2012] QDC 168
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Plummer v Queensland Police Service[2012] QDC 168
Plummer v Queensland Police Service[2012] QDC 168
QDC [2012] 168
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE DURWARD SC
No 641 of 2011
JODIE LEIGH PLUMMER | Appellant |
and | |
QUEENSLAND POLICE SERVICE | Respondent |
TOWNSVILLE
DATE 11/04/2012
JUDGMENT
HIS HONOUR: The appellant was convicted in the Magistrates Court at Townsville on 28 October 2011 of an offence of contravening a direction by a police officer, failing to state her name committed on 8 July 2011, a charge made pursuant to section 791(2) of the Police Powers and Responsibilities Act 2000, herein after referred to as "the Act". She was fined the sum of $250. She has appealed against the conviction.
The ground of appeal relies upon a construction of the Act. Mr Robinson, for the appellant, submitted that critical evidence was hearsay and inadmissible and that there was, therefore, insufficient evidence to prove the charge.
Two police officers attended at the residence of the appellant in response to a direction over the police communications channel about excessive noise. When they arrived in a police vehicle they could hear loud music coming from the residence. They entered the property and asked the appellant to give her name so that a noise abatement direction could be issued. She refused three such requests and was thereafter arrested, taken to the police station and charged with the offence.
Mr Robinson's submission was that the prosecution could not prove that a complaint had been made. The only evidence of a complaint was the testimony of the police officers that they were informed of the complaint over the police communications channel. That evidence had been admitted by the Magistrate as proof of "the fact that a complaint was made" and not as proof of the fact that there was noise, and it also showed why the police attended at the residence. See the transcript at T1-3, 1-22 and 1-23, and the decision at D2.
Mr Robinson submitted that the "police communication to the police officers in their vehicle was not admissible as proof of the complaint made to police communications officer at the police station" and that the direction given to the appellant was unlawful. The charge, it was submitted, required direct proof that a complaint had been made. Hearsay evidence was insufficient.
Section 577 of the Act relevantly provides as follows:
577 Complaint about noise
- (1)If a person reasonably believes noise emitted from a place is excessive noise the person may make a complaint to a police officer about the noise;
- (2)As soon as practicable after the complaint is made a police officer must investigate the complaint or cause the complaint to be investigated, unless the officer believes the complaint is frivolous or vexatious.
The police officer who receives a complaint from a person is not necessarily the police officer who investigates the complaint.
Subject to my resolving the ground of appeal, the factual circumstances appear to establish the following: the police officers who attended the residence heard the loud music coming from the residence, hence section 580(1)(b)(ii) and (c) are satisfied. Prima facie, they were authorised to give the noise abatement direction to the appellant, pursuant to section 581(3). I will say something further about this shortly. Section 791(2), the relevant offence provision in this proceeding, provides that it is an offence for a person to contravene a direction given by a police officer unless the person has a reasonable excuse.
It was open to the Magistrate to find that the appellant, who gave evidence in the summary hearing, had no reasonable excuse. Hence, it is for me to determine the appeal by a review of the evidence and a consideration of two questions: Was there admissible evidence of a complaint for the purposes of section 577? Was the direction lawfully made by the police officers?
In my view the ground of appeal is misconceived. The evidence of a complaint conveyed to the investigating police officers on the police communications channel was not led to establish the truth of the matter complained of, that is, excessive noise. The evidence was admissible to prove that a complaint was made. See Subramaniam v. the Public Prosecutor [1956] 1 WLR 965 at page 970, Ratten v. The Queen [1972] AC 378 at page 387, Walton v. The Queen (1989) 166 CLR 283 at page 293 and page 302, Courtney v. Thompson [2007] QCA 49 at paragraph 29, and R v. Perry [2011] QCA 236 at paragraphs 30 to 34.
It is the making of a complaint that establishes, for the investigating police officers, a lawful basis for their investigation, irrespective of the truth or otherwise of the matter complained of, that is, the lawful entry of the premises, the reasonable satisfaction of the noise as a matter of fact being excessive, and the giving to the person responsible for the noise a noise abatement direction.
Insofar as the direction in this proceeding was concerned, there was no issue about the lawfulness of the direction per se. It was not disputed that the police officers were acting in what they thought was the honest and lawful exercise of their duty. A police officer may direct a person to provide personal particulars, such as the person's name, section 40(1) and section 41(e) of the Act. There was evidence that the appellant was directed to state her name and refused to do so on three occasions.
The respondent made a submission about a police officer having a reasonable suspicion, and cited a case authority. However, that submission was not necessary in the circumstances of this case because section 41(e) specifically refers to the giving of a noise abatement direction as a prescribed circumstance for the purpose of section 40(1).
There was no error by the Magistrate in admitting the evidence on the basis that he referred to. Section 223(1) of the Justice Act 1886 provides for the manner in which this appeal is to be determined. I have reviewed the evidence, weighed the conflicting evidence and drawn my own conclusions, as I am required to do in an appeal against conviction, and having given due respect to the decision of the Magistrate. See Fox v. Percy (2003) 214 CLR 118 at paragraph 25, Warren v. Coombes (1979) 142 CLR 531 at page 551, Rowe v. Kemper [2008] QCA 175 at paragraph 5, Dwyer v. Calco Timbers Pty Ltd (2008) 234 CLR 124 at paragraphs 18 to 26, and Nbuzi v. Torcetti [2008] QCA 231 at paragraph 17.
I am satisfied that the evidence of a complaint having been made was admissible to prove that fact and that it was not necessary to adduce evidence from the police officer who received the complaint. I am satisfied that the police who attended the residence had grounds for reasonable satisfaction that there was excessive noise coming from the residence of the appellant. I am satisfied that their entry onto the premises was lawful, that the direction to the appellant to state her "full and correct name" was lawfully given, and that the appellant refused, without reasonable excuse, to comply with the direction. Hence there was evidence, properly admitted, to prove the elements of the charge.
The appellant was lawfully found guilty of the charge and pursuant to section 225(3) of the Justices Act 1886. I confirm the conviction of the appellant in the Magistrates Court. It follows that the appeal is dismissed.